Category: Rule 137 Sanctions

Failure To Present Complete Record Defeats Sanctions Appeal

In Green v. McDonald, 2025 IL App (4th) 240759, the Appellate court affirmed the denial of a Rule 137 motion. The plaintiff had sued to obtain visitation with her “half-siblings” who were minors. She lost. Defendant moved for sanctions, which were denied by the trial court. Defendant’s appeal was unsuccessful.

¶ 30 Section 602.9(c) of the Marriage Act authorizes siblings of a minor child to petition the trial court for visitation if there is an unreasonable denial of visitation by a parent that causes undue mental, physical, or emotional harm to the child and the child’s other parent is deceased. 750 ILCS 5/602.9(c) (West 2020). A sibling may do so by filing a petition in the dissolution proceeding or any other proceeding that involves visitation issues regarding the child. 750 ILCS 5/602.9(b)(1) (West 2020).

¶ 31 Here, respondent focuses on what he characterizes was a “complete lack of any proof” of undue harm to the minors, which he contends is sanctionable under Rule 137. However, respondent, who was quick to note the perceived deficiencies of petitioner’s pro se brief, has not provided a report of proceedings on appeal to show the evidence petitioner presented at the hearing. We could spend time commenting on respondent’s violations of Illinois Supreme Court Rule 341(h)(6) (eff. Oct. 1, 2020), which requires a statement of facts “which shall contain the facts necessary to an understanding of the case, stated accurately and fairly without argument or comment” (emphasis added), but need not.

¶ 32 “[A]n appellant has the burden to present a sufficiently complete record of the proceedings at trial to support a claim of error, and in the absence of such a record on appeal, it will be presumed that the order entered by the trial court was in conformity with law and had a sufficient factual basis. Any doubts which may arise from the incompleteness of the record will be resolved against the appellant.” Foutch v. O’Bryant, 99 Ill. 2d 389, 391-92, 459 N.E.2d 958, 959 (1984). In the absence of a complete record, especially when the abuse-of-discretion standard applies, we must presume that the trial court acted properly. See Foutch, 99 Ill. 2d at 392 (without a transcript of the hearing on the motion, “there is no basis for holding that the trial court abused discretion in denying the motion”).

¶ 33 Given the lack of a record of the evidence petitioner actually provided at the hearing, we cannot determine she completely failed in her attempt to prove her case. Meanwhile, as previously noted, Rule 137’s purpose is not to penalize an unsuccessful party. Miller, 311 Ill. App. 3d at 976. While the trial court factually found there was no evidence of undue harm, the court noted petitioner’s attempt at proving the undue harm through evidence of her previously good relationship with the minors and her argument there was an inference the unreasonable termination caused the minors’ emotional distress or mental harm. We further note the record contains material supporting the court’s conclusion the termination was indeed unreasonable. Petitioner’s argument to the court also included assertions respondent had expressed anger in the presence of the minors, which petitioner argued provided an inference of undue harm. That petitioner was ultimately unable to convince the court to accept her inference does not mean the pleading she filed was not well-grounded in fact and not warranted by existing law or a good-faith argument for the extension, modification, or reversal of existing law.

Comment: failing to provide a complete record allowed the court to affirm the denial of sanctions without discussion of the merits.

Lawyers Sanctioned For Filing Suit When They Had Client Sign Arbitration Agreement

In Johnson and Bell, Ltd., v. Scherer, 2024 IL App (1st) 230709-U, the law firm sued a former client to collect an unpaid fee bill. However, the engagement letter signed by the client and the law firm required that all disputes between the parties be submitted to binding arbitration. Because the firm failed to pursue this remedy, the defendant sought Rule 137 sanctions. The trial court denied the motion for sanctions. The Appellate Court reversed and held that the denial of sanctions was an abuse of discretion.

The reasoning:

¶28 We conclude that the instant case warrants a finding that the trial court abused its discretion in denying defendants’ motion for Rule 137 sanctions against plaintiff….First, although plaintiff filed the original complaint without any reference to the parties’ engagement agreements, plaintiff does not deny, nor can it, that it was aware of the existence of these agreements when it filed the original complaint. Plaintiff is a law firm and drafted the engagement agreements that contain the unambiguous and broad mandatory arbitration provision for disputes involving any dispute under the agreement, including disputes regarding the amount of fees or the quality of plaintiff’s services. Consequently, even the most basic level of “reasonable investigation” as mandated by Rule 137 would have required plaintiff to examine the engagement agreements and their provisions before plaintiff signed and filed the original complaint.

¶ 30 Furthermore, plaintiff’s argument that it properly filed the original and amended complaints because the parties could waive the contractual provision for mandatory, binding arbitration lacks merit. Based upon the objective standard used to measure the circumstances at the time plaintiff filed its pleadings, it is irrelevant that plaintiff believed waiver of the arbitration provision was a possibility. Furthermore, plaintiff’s response to defendants’ motion to dismiss and compel arbitration—i.e., that defendants had waived their right to arbitration by moving to dismiss plaintiff’s original complaint based on plaintiff’s failure to abide by pleading requirements and attach the engagement agreements—is clearly contrary to precedent. Illinois courts clearly favor the easier, more expeditious, and less expensive contractual right of arbitration for dispute resolution and will not lightly infer the waiver of that contractual right. All American Roofing, Inc. v. Zurich American Insurance Co., 404 Ill. App. 3d 438, 441 (2010)….

¶33 …[E]ven a cursory examination by plaintiff of the engagement agreements here would have indicated that the challenged complaints were barred by the arbitration provision and, therefore, should not have been filed before obtaining a waiver fro defendants. Furthermore, instead of promptly dismissing the lawsuit that clearly was subject to mandatory arbitration ….plaintiff doubled down by filing the amended complaint and responding to defendants’ motion to dismiss and compel arbitration with the baseless argument that defendants had waived their right to mandatory arbitration by moving to dismiss the original complaint….

The court reversed the denial of the motion for Rule 137 sanctions and remanded the case for further proceedings.

Comment: the opinion is well-reasoned and appropriate. Arbitration can be inconvenient to those familiar with courtrooms and court proceedings. However, the firm agreed to arbitration and was required to arbitrate. The opinion states that the firm obtained a fee award in the arbitration.

http://www.clintonlaw.net

False Allegations in Petitions Draw Sanctions

In Amen v. Attiah, 2023 IL App (2d) 220031-U, the Illinois Appellate Court upheld sanctions awards in three cases where the same plaintiff requested no contact orders against three different people. The underlying dispute was between citizens and the school board, of which Amen was a member. The dispute concerned whether or not to return to in person learning. Each petition argued that there were threatening statements in facebook posts, but the posts were not attached to the petitions. The petition was a member of a school board. The Appellate Court affirmed the award of Rule 137 sanctions.

¶ 48 The record supports the trial court’s findings for Rule 137 sanctions against Amen due to the untrue allegations littered throughout her petitions. See supra ¶ 25. The evidence also fully supports the notion that sanctions were appropriate as the allegations in Amen’s petitions were wholly unsupported by facts or law. Indeed, the evidence tended to show that the petitions were designed to stifle respondents rights to speak out against Amen’s effort to gain re-election to the school board. The trial court explicitly found as such by noting

“This is not a situation where there is no harm from petitioner asking for a motion to be granted. While not dispositive of the outcome, Petitioner used her status as a public official to intimidate ordinary citizens. Worse, this petition was filed one day after a respondent demanded the school board act against Petitioner for her public campaign against them. It’s obvious to the Court that Petitioner wished to show them the consequences of public disagreement with her and quash their campaign and criticism of her. Oddly, these respondents had little to no contact with Petitioner. Can you imagine if a local mayor sought court action against a constituent or constituents for little more than online campaigning against that mayor? There’s essentially no difference between that scenario and this. Someone who dares to fight City Hall should be able to do so without fear of meritless litigation. It’s not lost on the court that Petitioner labels herself as a criminal defense attorney and civil rights attorney while seeking this claim against ordinary citizens, though her status as an attorney is not essential to the court’s finding.”

Amen takes further issue with the last sentence in the above findings. She asserts that the trial court improperly relied on her status as an attorney in granting respondents’ motions for sanctions. This assertion is meritless. Rule 137 applies to both attorneys and litigants. See IL. S. Ct. R. 137(a) (eff. Jan. 1, 2018). Throughout the proceedings Amen referred to herself as an attorney. She took issue in her petitions with respondents’ comments on her advertisement for services as an attorney. At no point in the underlying proceedings did she object or otherwise complain about being labeled as such. The trial court’s reference to her status as a criminal defense attorney in no way indicates that it relied on that status in granting the motions for sanctions. As Rule 137 applies equally to both attorneys and litigants, her complaints on this issue are a non-event.

¶ 49 Equally meritless is Amen’s assertion that the trial court treated the hearing on respondents’ motions for sanctions as a plenary hearing for an order of protection. The argument is based on the trial court’s reference to the hearing as an “OP” near the end of the hearing on September 22, 2021. Burton then corrected the trial court by noting that it was a motion for sanctions brought by respondents’ counsel. The court then tells Burton, “You are right.” At the beginning of that hearing, the trial court referred to the matter as “a Motion for Sanctions and movant in this case is respondent.” The order awarding sanctions to respondents repeatedly refers to the motions for Rule 137 sanctions. To state it mildly, Amen’s assertion that the trial was treated as a plenary hearing for an order of protection is based on a momentary misstatement by the trial court as opposed to any theory grounded in Illinois law or a reasonable person’s ability to read the report of proceedings.

¶ 50 In sum, the trial court’s award of sanctions and fees in favor of respondents was not an abuse of discretion. The detailed order is supported by the evidence presented and we will not disturb those findings here.

Comment: the court seemed concerned that Amen was using the requests for protective orders to stifle speech.

www.clintonlaw.net

Rule 137 Sanctions Awarded For Post-Decree Filings

In Marriage of Kent, 2021 Ill App (2d) 200637-U, the Illinois Appellate Court affirmed an award of Rule 137 sanctions against one of the lawyers. The lawyer who was sanctioned had filed numerous post-decree petitions and then withdrew them. The opposing party brought the motion for sanctions on the ground that the petitions lacked a good faith basis. The key portions of the opinion are quoted below.

¶ 9 On June 15, 2020, the trial court entered an order that the appellate court decision was “spread of record.”[2] On July 15, 2020, Luis filed various petitions and then, on July 17, 2020, he filed a motion for Rule 137 sanctions against Trent. He argued, in part, that several motions filed posttrial by Trent on Colleen’s behalf were not based in fact or law and were not filed in good faith. For example, when Trent filed his first petition for attorney fees, Luis’s counsel and the court reminded counsel that he could not do so while he remained counsel of record; yet, he simply filed an amended petition for fees and another petition for a consent judgment, essentially seeking entry of fees without the benefit of a hearing for his client on those fees. Luis argued that, due to the numerous filings, his counsel was required to respond and appear in court nine times. Then, on the day of the November 6, 2019, hearing, Colleen’s multiple motions were simply withdrawn. Luis represented that, from the entry of the July 22, 2019, dissolution judgment through December 3, 2019, when the court issued its Rule 304(a) language, he had incurred over $38,000 in additional attorney fees and costs, most of which were incurred in the defense of the nine motions/petitions filed by Trent on Colleen’s behalf. He further noted that the substantial increase in postjudgment litigation costs would result in Colleen receiving no funds from the marital estate; hence, both parties to the litigation were being substantially harmed. Luis requested that the court impose against Trent sanctions and award Luis the fees he incurred to answer or defend Colleen’s posttrial motions.

¶ 27 Here, we cannot say that no reasonable person would agree with the court’s decision to sanction Trent. Indeed, when reviewing decisions concerning Rule 137 sanctions, “the deferential standard is applied because generally the conduct at issue occurred before the judge issuing the sanctions, who, therefore, is in the best position to determine whether the challenged conduct warranted penal sanctions or because the trial court heard testimony from individuals involved in the challenged conduct.” Mohica v. Cvejin, 2013 IL App (1st) 111695, ¶ 50. Here, the trial judge was intimately familiar with the case, parties, and attorneys (indeed, it had previously noted the litigiousness with which Colleen and her counsel pursued the case). As Trent concedes, the court did not find convincing that allposttrial filings identified by Luis warranted sanctions, but after considering all circumstances and hearing argument, it determined that some of the filings and withdrawals thereof were not made in good faith. The court clearly considered carefully each challenged filing, and it was in the best position to weigh and assess whether those filings warranted sanctions.

¶ 28 Trent does not agree that his filings, particularly those concerning attorney fees, necessarily resulted in direct costs to Luis. However, we note that the court did not award sanctions in an amount even close to the $38,000 in additional attorney fees and costs Luis alleged to have incurred postjudgment. As such, the court implicitly determined that some of Luis’s postjudgment fees did not directly result from Trent’s alleged misconduct. Nevertheless, the court did find that Trent filed motions alleging issues that required Luis’s response and his counsel’s appearance, then withdrew those motions, and then, although he claimed that they were withdrawn to pursue an appeal, did not appeal the issues in those withdrawn motions. Further, given Trent’s lengthy legal career, the court did not find credible that his multiple filings for attorney fees and consent judgments, while he continued to represent his client, were filed for a proper purpose and, as such, that they were not well-based in law or fact. Indeed, section 508(c)(1) plainly states, “[n]o petition of a counsel of record may be filed against a client unless the filing counsel previously has been granted leave to withdraw as counsel of record or has filed a motion for leave to withdraw as counsel.” (Emphases added.) 750 ILCS 5/508(c)(1) (West 2018)). According to Luis’s 2020 sanctions motion, after Trent filed his first petition for attorney fees, Luis’s counsel and the court reminded Trent that doing so while he remained counsel of record was improper, yet he simply filed an amended petition without moving to withdraw (indeed, while we do not have a transcript reflecting the court’s alleged reminder, the record does not show Trent as having filed a motion to withdraw as counsel between the original and amended petitions). Moreover, although Trent’s petitions for attorney fees against Colleen might not have directly required Luis’s response, Luis’s counsel was not unreasonable in pointing out to the court that the petitions for fees were improper and that all filings and fees in this dissolution case affected the total recovery available to all parties.

¶ 29 In sum, the court’s sanctions ruling was not an abuse of discretion.

Comment: It would appear from the appellate reports that Illinois courts have increased their use of Rule 137 to sanction lawyers for litigation conduct. Here, the record reflects that the lawyer filed numerous motions and then withdrew all of them after the other side had incurred legal fees.

Should you have a question about Rule 137 sanctions, do not hesitate to contact us. We may be able to provide an independent view of your issue.

Ed Clinton, Jr.

http://www.clintonlaw.net

Plaintiff’s Attempt to Escape Divorce Court Sanctioned under Rule 137

The case is Davis v. Davis, 2019 IL App (3d) 170744. The parties were divorced in 2012. Husband believed that his wife had violated the postmarital agreement, but instead of filing a claim in the Divorce case he filed a breach of contract lawsuit. His case was dismissed. The dismissal was affirmed on appeal but the Appellate Court reversed the denial of Rule 137 sanctions. The court found that the filing of the breach of contract action violated Rule 137 and awarded wife her legal fees associated with defending the case:

¶18.  The court found that dismissal was warranted because affirmative matter defeated Michael’s claim. The court reasoned that the action was “a divorce court matter” and should have been brought in the dissolution action. We agree with the trial court. Dissolution proceedings are designed to dispose of all matters connected with the dissolution of a marriage, including the parties’ attorney fees. See 750 ILCS 5/508 (West 2016). The dissolution proceedings and the breach of contract action were intertwined asthey were both based on the postmarital agreement. Bringing this claim in the dissolution action would not result in the joining of distinct and independent matters or require separate briefs, defenses, or the joinder of claims against multiple defendants. Both the dissolution action and the breach of contract action relied on the postmarital agreement for resolution. Leann was the only defendant, and there was no one else to join. The doctrine of multifariousness is not applicable under these facts. The dissolution action, which was pending at the time Michael brought the breach of contract action, was the appropriate forum for Michael to seek attorney fees. We find the trial court’s dismissal on this alternative ground was also proper…..

¶25.              We determine that sanctions under both Rule 137 and Rule 375 are warranted. We find that Michael lacked a legal or factual basis to pursue his breach of contract action and to appeal it. He reasoned that his breach ofcontract action was independent of the dissolution proceedings. Nevertheless, he relies on the postmarital agreement to support both his dissolution claim and his breach of contract claim, indicating that he wasaware both causes of action were based on the same set of facts. Moreover, after contesting the validity of the postmarital agreement, Leann complied with its terms and provisions negating any basis for a breach. In essence, Michael attempted an end-around of his obligations under the postmarital agreement to be obligated for his own legal expenses. His filing the breach of contract action and the appeal of its dismissal unnecessarily extended proceedings between the parties. Because there was no basis for Michael’s breach of contract claim, his pursuit of the action can only be directed to harass Leann.

¶ 26                 We thus direct Michael to pay the cost to Leann of defending his action at both the trial and appellatecourts. See Ill. S. Ct. R. 366 (eff. Feb. 1, 1994) (this court may enter any judgment that should have been entered in the trial court). Leann’s attorney should present to this court an affidavit and billing records distinguishing between the trial and appellate work so we may enter proper sanctions amount under each rule. Amadeo v. Gaynor, 299 Ill. App. 3d 696, 706 (1998) (court determined sanctions amount based on attorney affidavit and billing records). Leann has offered to supply this court with the necessary financialinformation within seven days, and we request that she so submit the affidavit and billing records within seven days after issuance of this opinion. We will enter an order specifying the amount due and allow Michael 14 days to either pay Leann or challenge her accounting. We further direct Michael to pay Leann directly through her counsel.

Comment: Don’t try to avoid the divorce court or the divorce judge by filing a “contract” claim in another court.

 

Pro Se Attorney May Obtain Rule 137 Sanctions in Illinois For His Own Legal Work – Updated

Illinois has long allowed a client to seek Rule 137 sanctions if the allegations brought against him are frivolous or without factual basis or both. Illinois also has a rule that provides that a lawyer who is sued and represents himself cannot obtain legal fees for his own work. (He can obtain fees if he hires counsel).

In McCarthy v. Reynolds, 2018 IL App (1st) 162478, Illinois Appellate Court, First District, those two rules collided. Unfortunately for the lawyer defendant, the court held that he cannot obtain legal fees under Rule 137 because he represented himself.

The procedural history of the case was not complex. McCarthy was a beneficiary of a trust. He sued the lawyer employed by the trust (Marvin Gray) for breach of fiduciary duty and tortious interference with his beneficiary interest.

Gray moved to dismiss the complaint and was successful. He then sought and obtained an award of Rule 137 sanctions from the trial court. The case was dismissed under the doctrine of res judicata on the ground that the same lawsuit had been filed previously by McCarthy in 2013 and had been dismissed.

On appeal, McCarthy argued that Gray could not recover Rule 137 sanctions for his own work. The Appellate Court held that sanctions were appropriate.  The explanation:

¶ 21 Here, in its August 4, 2016, corrected order, the circuit court held that plaintiff’s tortious interference claim was filed with no basis in law because it was barred by the doctrine of res judicata. The circuit court noted that plaintiff filed the 2013 lawsuit and litigated it to its final conclusion. The court further reasoned that plaintiff was “acutely aware of the proceedings because he verified the complaint in that case * * * and he is a lawyer himself.” Plaintiff additionally appealed the circuit court’s decision of the 2013 case and later listed himself as cocounsel on the petition for leave to appeal to the Illinois Supreme Court. Accordingly, plaintiff was “well-aware” of the allegations in the 2013 complaint and the proceedings that took place in relation thereto. The circuit court found there was “no basis in law” for plaintiff to file his tortious interference claim where, despite being aware of the final judgment in the 2013 case, he never set forth any good faith explanation regarding why he filed the subsequent claim that was a clear attempt to relitigate the findings of fact and credibility determinations made in the 2013 case.

¶ 22 We find the circuit court did not abuse its discretion in imposing Rule 137 sanctions against plaintiff for violating the Rule. As found by the circuit court, plaintiff, though represented by counsel in the 2013 case, expressly was involved and had knowledge of the allegations of that complaint and the resulting proceedings that occurred. Notwithstanding, plaintiff filed the instant action to challenge Gray’s credibility in the 2013 action, which is a claim that should have been raised in the 2013 case. We, therefore, conclude plaintiff’s tortious interference claim was not well-grounded in law because it was barred by res judicata. As a result, it was not unreasonable for the circuit court to find the tortious interference claim was filed for an improper purpose under Rule 137.

¶ 23 To the extent plaintiff argues he was sanctioned without a proper hearing, we disagree. Plaintiff alleges Gray failed to raise res judicata as a basis for the imposition of sanctions and, therefore, the circuit court erred in awarding sanctions on that basis without providing him with a hearing. Our review of the record demonstrates that the circuit court dismissed plaintiff’s tortious interference claim on February 27, 2015, based on res judicata and then granted Gray’s request for Rule 137 sanctions on March 30, 2016, where it found the tortious interference claim was frivolous. Accordingly, at the time the circuit court considered the Rule 137 sanctions, plaintiff was fully aware that his tortious interference claim had been dismissed based on res judicata. Moreover, Gray’s motion requesting Rule 137 sanctions alleged he was entitled to such sanctions “[d]ue to the plaintiff’s unfounded, fallacious and specious allegations and pleadings.” Notwithstanding, plaintiff never requested an evidentiary hearing on any basis.

Alas, the lawyer could not recover fees for his own legal time, so the sanctions award disappeared.

¶ 26 Plaintiff finally contends the circuit court abused its discretion in awarding excessive fees against him to an attorney that proceeded pro se. Plaintiff cites Hamer v. Lentz, 132 Ill. 2d 49 (1989), and its progeny to support his argument regarding the impropriety of awarding the fees to Gray.

¶ 27 We first address our standard of review. As stated, a circuit court’s decision to impose sanctions pursuant to Rule 137 is a matter of discretion and will not be overturned absent an abuse of that discretion. Nelson, 408 Ill. App. 3d at 67. However, whether a circuit court has the authority to grant attorney fees as an available remedy is a question of law that we review de novo. People ex rel. Schad, Diamond & Shedden, P.C. v. My Pillow, Inc., 2017 IL App (1st) 152668, ¶ 101. Because plaintiff challenges the circuit court’s authority to award attorney fees under Rule 137 to Gray, who appeared pro se, our review is de novo.

¶ 28 In Hamer, the supreme court held that an attorney appearing pro se in an action brought pursuant to the Freedom of Information Act (FOIA) (Ill. Rev. Stat. 1987, ch. 116, ¶ 201 et seq.) was not entitled to attorney fees. Hamer, 132 Ill. 2d at 63. The FOIA contains a standard fee-shifting provision that is silent on the issue of a pro se attorney recovering fees. The supreme court reasoned that fees were not appropriate under those circumstances because the fee-shifting provision of the FOIA was designed (1) to remove the burden of legal fees as a deterrent from litigants, which was not a barrier for a pro se attorney because a lawyer representing himself does not incur legal fees, (2) to reduce unnecessary litigation by encouraging citizens, even lawyers, to seek objective legal advice before filing suit, and (3) to avoid abusive fee generation by unscrupulous attorneys. Id. at 61-62. Subsequent appellate decisions have expanded the rule to other contexts. See, e.g., Kehoe v. Saltarelli, 337 Ill. App. 3d 669, 678 (2003) (holding an individual attorney was not entitled to recover fees for pro se representation in a malpractice action); In re Marriage of Pitulla, 202 Ill. App. 3d 103, 117-18 (1990)(finding the rule barring pro se attorneys from collecting attorney fees applied in the context of a divorce proceeding); Uptown People’s Law Center v. Department of Corrections, 2014 IL App (1st) 130161, ¶ 25 (denying fees under FOIA for work performed by in-house, salaried lawyers on behalf of its employee, an organization).

¶ 29 The parties have not cited, and our research has not uncovered, any case law applying the Hamer rule to a Rule 137 motion. We acknowledge the purpose of Rule 137 is, in relevant part, to curb the filing of frivolous pleadings. See Sanchez v. City of Chicago, 352 Ill. App. 3d 1015, 1020 (2004). We further acknowledge that plaintiff’s tortious interference claim was undoubtedly a frivolous cause of action. Rule 137, however, is silent on the recovery of attorney fees for all pro se litigants, whether an attorney or not. Without any support establishing that attorney fees are appropriate under the circumstances before us, we choose to follow the demonstrated law providing that pro se attorneys are not entitled to attorney fees, especially because Rule 137 is penal in nature and must be strictly construed. See Adler, 271 Ill. App. 3d at 476. We find the policy reasons provided in prior case law to be convincing; thus, we will not extend Rule 137 to provide attorney fees to pro se attorneys.

Mr. Gray deserves credit for his excellent legal work on his own behalf. The court, applying well-settled law, concluded that he could not recover for that work.

Update: The Illinois Supreme Court reversed the judgment of the Appellate Court.

¶ 28 We find that Hamer and its progeny are distinguishable because those cases did not involve Rule 137 sanctions to compensate a pro se attorney defending himself against frivolous claims. The essential underlying policy of Rule 137 of discouraging frivolous or harassing litigation is furthered by imposing sanctions in the form of an award of attorney fees in favor of a pro se attorney defending against meritless claims. See Sundance Homes, 195 Ill. 2d at 285-86; In re Estate of Wernick, 127 Ill. 2d at 77. Here, defendant did not initiate or otherwise invite the frivolous pleadings. Nevertheless, defendant was forced to defend against the frivolous claims filed by plaintiff, also an attorney. If the policy of Rule 137 sanctions is to deter frivolous pleading and litigation, it would be illogical to deny attorney fees to pro se attorneys defending themselves in such matters.

¶ 29 The policy considerations underlying our decisions in Hamer and My Pillowon fee-shifting provisions are not present when a court awards sanctions under Rule 137. Here, sanctions are intended as a punishment against the party who abuses the judicial process, not as a reward to a successful pro se attorney who is defending against a frivolous lawsuit. The concern articulated in Hamer and My Pillow on deterring abusive fee generation by lawyers who initiate litigation is not present when sanctions are imposed against a plaintiff who files frivolous pleadings. This case does not involve awarding attorney fees to an attorney bringing suit as a plaintiff in his own name. Rather, defendant was forced to expend his time defending a frivolous lawsuit, as well as pursuing sanctions clearly provided for by Rule 137.

…

¶ 31 We reiterate that “[t]he purpose of Rule 137 is to prevent abuse of the judicial process by penalizing claimants who bring vexatious and harassing actions.” Sundance Homes, 195 Ill. 2d at 286. To hold that an attorney cannot recover reasonable attorney fees in defending himself against frivolous litigation would clearly frustrate the purpose of Rule 137 and unfairly reward those who persist in maintaining frivolous litigation.

¶ 32 We hold that, under Rule 137, a court is authorized to impose sanctions in the form of attorney fees under Illinois Supreme Court Rule 137(a) (eff. July 1, 2013) against a plaintiff to compensate an attorney defending himself against a frivolous cause of action. Accordingly, we reverse that part of the appellate court decision holding to the contrary and remand with directions to reinstate Gray’s attorney fee award.

Comment: the Illinois Supreme Court, in my view, has made the correct ruling. Sanctions should be available even where a lawyer must defend himself pro se.

Ed Clinton, Jr.

The Clinton Law Firm

False Allegation In Complaint Triggers Rule 137 Sanctions

This is a case where the Illinois Appellate Court affirmed an award of sanctions to the Defendant.

In Fitzgerald v. O’Donnell, 2016 IL App (1st) 153112-U, the plaintiffs brought a defamation lawsuit against O’Donnell. They alleged that he had mailed a series of anonymous letters to “various public officials and members of the media in political retaliation,” for their decision to support a political opponent of the Defendant.

In their third amended complaint, the plaintiffs alleged that they had retained a handwriting expert who supported their allegation that O’Donnell had addressed the envelopes. The allegation stated: “Based upon handwriting analysis of the handwritten envelopes used to mail the November 2011 letters and the February 2012 letter, [O’Donnell] addressed the envelopes and mailed the letters to recipients described herein.”

During discovery, the deposition of Plaintiffs’ handwriting expert was taken. The expert did not provide a conclusive opinion that O’Donnell addressed the envelopes which contained the defamatory letters.

O’Donnell moved for summary judgment on that issue, but the court denied the motion. Two months later, however, the court granted O’Donnell’s sanctions motion on the ground that the allegations in Paragraph 46 were not well-grounded in fact or law. The court further noted that “[p]laintiffs made claims during the July 08, 2013 hearing, in the presence of this Court, that the [p]laintiffs had verifiable proof that [O’Donnell] addressed the letter.” ¶ 25. The court awarded $43,641.75 in legal fees and $9,303.50 in costs to O’Donnell. Paragraph 26.

The court, using an abuse of discretion standard, affirmed the sanctions award. The court reasoned that the plaintiffs failed to submit proof that they had consulted with a handwriting expert before they filed the case and that the handwriting expert had supported their claim.

An award of sanctions is reviewed under an abuse of discretion standard. Here, the court felt there was sufficient support in the record to affirm the sanctions award.

Edward X. Clinton, Jr.