Find Legal Information

FOURTH DIVISION

September 19, 2002

No. 1-00-4209

PRESIDING JUSTICE THEIS delivered the opinion of the court:

After conducting a hearing, the trial court imposed sanctions of $23,904.25 against attorneyDaniel M. Starr for violations of Illinois Supreme Court Rule 137. 155 Ill. 2d R. 137. On appeal,Starr does not challenge the trial judge's finding that Starr violated Rule 137. Instead, Starr asks thiscourt to vacate the trial court's sanctions award because the plaintiff's attorney did not initially signthe motion for sanctions. He contends that this initial failure itself violated Rule 137, thus nullifyingall subsequent hearings and the sanction award. Starr also argues that plaintiff has providedinsufficient evidence for the award of attorney fees on certain dates. We affirm.

Plaintiff James Robertson's original complaint against defendant Carol Calcagno arose outof a January 27, 1997, contract between Calcagno and Robertson to purchase a townhouse at 2245Seaver Lane in Hoffman Estates for $234,900. Robertson granted possession to Calcagno prior tothe closing. When Calcagno failed to perform on the contract, Robertson filed an action for forcibleentry and detainer. The trial court granted an order of possession in favor of Robertson. When thesheriff attempted to execute the order, however, the sheriff found that James Jakubosky was anoccupant of the premises at 2245 Seaver Lane, and did not execute the order of possession becauseJakubosky was not included in the order.

Robertson then filed an amended complaint to include Jakubosky. On November 7, 1997,Starr filed an appearance and jury demand on behalf of Jakubosky. He also filed two motions todismiss, which the court denied. The matter culminated in a two-day jury trial in which Robertsongained an order of possession against Jakubosky and all unknown occupants of the address.

One of Robertson's attorneys of record, Loren Mallon, prepared a motion for Rule 137sanctions against Starr, Timothy L. Rowells, his partner, and Starr & Rowells, their lawfirm. Hefaxed the motion from his Chicago office to another attorney of record, Robert Riffner. Robertsonhad hired Riffner to file pleadings and make routine court appearances in Rolling Meadows to saveon the expense of sending Mallon from Chicago. Riffner's secretary retyped the motion so it wouldnot be filed as a faxed document. With Mallon's consent, Riffner signed Mallon's name and clearlyplaced his initials, "RGR," next to the signature.

On December 24, 1997, Robertson filed the motion requesting, inter alia, Rule 137 sanctionsagainst Starr and Starr & Rowells. Robertson alleged that Starr had misrepresented Jakubosky'salleged claim of interest in the property so as to harass Robertson and to cause unnecessary delay inthe eviction of Calcagno and needless increase in the cost of the litigation. Starr filed a response onJanuary 6, 1998.

On March 18, 1998, the first date of evidentiary hearings in the matter, prior to Jakubosky'stestimony under subpoena, the following exchange occurred:

"MR. MALLON: Your Honor, may I call my first witness who is Mr.Jakubosky[.]

THE COURT: Is he here?

* * *

MR. STARR: Judge, I would like to talk to him first.

THE COURT: What do you want to talk to him about?

MR. MALLON: This isn't your client.

MR. STARR: I've done an appearance on his behalf. I want to talk to him.

MR. MALLON: This isn't your client.

MR. STARR: I want time to talk to him, Judge. I am entitled to talk to himbefore I get surprised; and I would like to do so, if I might.

THE COURT: No. We are calling him. Let's go. It's noon.

MR. STARR: I've got a due process right to talk to him. I've got a right totalk to him.

MR. MALLON: This is set for a hearing.

MR. STARR:But, Judge, before we put witnesses up there, I have a right totalk to him.

THE COURT: Based on what?

MR. STARR: Judge, I have done an appearance on his behalf.

THE COURT: So what?

MR. STARR: So I've got a right to talk to him.

THE COURT: Based on what?

MR. STARR: Before we go to trial, I want - -

THE COURT: This is not a trial, it is a hearing. You will have anopportunity to cross him or then, before you call him as your witness, you can talkto him. He is not being called as your witness. Step up."

Once on the stand, Jakubosky testified that he had never met Starr, had never hired Starr andStarr & Rowells, had never authorized Starr and Starr & Rowells to file any papers or pleadings inhis name, had never authorized Starr and Starr & Rowells to conduct a two-day jury trial in his name,and he never knew that he was a defendant in the matter until after the trial. The hearing continuedover several days and several witnesses were called by both sides.

On July 16, 1998, Starr filed a motion to strike the plaintiff's motion for sanctions or in thealternative for summary judgment. After hearing argument, the court ruled that it had discretionunder Illinois Supreme Court Rule 183 (134 Ill. 2d R. 183) to extend the time for Robertson'scounsel, Mallon, to sign the Rule 137 motion. The court allowed Mallon to sign the Rule 137motion instanter. The court then denied Starr's motion to strike because Mallon had properly affixedhis signature pursuant to the court's extension of time. The court then heard from witnessesregarding the prove-up of the costs incurred by Robertson's attorneys. Counsel for Starr cross-examined the witnesses.

In the trial court's memorandum opinion and order, it noted, "Ms. Calcagno had an extensivehistory of being a defendant in a [sic] forcible cases involving dilatory tactics. Mr. Starr had actedas an attorney in many of those cases. This case, like those prior cases, resulted in extensive legalproceedings before Mr. Robertson finally regained possession." The court found that Starr

"failed to conduct a reasonable inquiry into the facts prior to filing anappearance on behalf of Mr. Jakubosky on November 7, 1997. Thisfinding is based on all the evidence received by this court including[the] fact that Mr. Starr received all the information regarding Mr.Jakubosky, both verbal and documentary, from Ms. Calcagno, anindividual who he did not trust and who he knew was engaged in afraudulent scam. This court further finds that [Starr] violatedSupreme Court Rule 137 by filing an unauthorized appearance onbehalf of a non-existing occupant for the purpose of delaying aneviction as part of a fraudulent scheme to retain possession of theleasehold."

The court found that Starr had violated Rule 137. The court awarded attorney fees for expensesincurred after November 7, 1997, the date Starr filed the appearance, and for the filing fee of thecomplaint. The court did not allow an award for time which the attorneys did not bill Robertson, norfor time that was recovered in a parallel sanctions proceeding against Calcagno in the bankruptcycourt.

Starr does not argue that the trial court erred in finding him in violation of Rule 137. Rather,Starr argues that the trial court committed error when it denied his motion to strike Robertson's Rule137 motion for sanctions. He specifically argues that because Mallon failed to sign the motion inhis "individual name," the court was required to strike the motion as required by Rule 137. Wereview the record to determine whether the trial court abused its discretion in denying Starr'srequested sanction under Rule 137. Gershak v. Feign, 317 Ill. App. 3d 14, 18, 738 N.E.2d 600, 605(2000). Rule 137 provides:

"Every pleading, motion and other paper of a party represented by an attorneyshall be signed by at least one attorney of record in his individual name, whoseaddress shall be stated. * * * The signature of an attorney or party constitutes acertificate by him that he has read the pleading, motion or other paper; that to the bestof his knowledge, information, and belief formed after reasonable inquiry it is wellgrounded in fact and is warranted by existing law or a good-faith argument for theextension, modification, or reversal of existing law, and that it is not interposed forany improper purpose, such as to harass or to cause unnecessary delay or needlessincrease in the cost of litigation. If a pleading, motion, or other paper is not signed,it shall be stricken unless it is signed promptly after the omission is called to theattention of the pleader or movant. If a pleading, motion, or other paper is signed inviolation of this rule, the court, upon motion or upon its own initiative, may imposeupon the person who signed it, a represented party, or both, an appropriate sanction,which may include an order to pay to the other party or parties the amount ofreasonable expenses incurred because of the filing of the pleading, motion or otherpaper, including a reasonable attorney fee." 155 Ill. 2d R. 137.

Starr relies primarily on Bachmann v. Kent, 293 Ill. App. 3d 1078, 689 N.E.2d 171 (1997),as authority to require the striking of Robertson's Rule 137 motion. Bachmann, however, concernedonly "the issue of whether the signature of a nonattorney employee of a law firm is sufficient as thesignature of an 'attorney of record' under Supreme Court Rule 137." Bachmann, 293 Ill. App. 3d at1085, 689 N.E.2d at 176. Here, Riffner signed Mallon's name with the consent of Mallon. Riffnerwas an attorney of record. Therefore, Bachmann does not control our decision.

This court has previously explained the holding of Bachmann:

"The Bachmann court had to assume, faced with a sparserecord, that the trial court acted within the scope of Rule 137 inimposing sanctions. The case can be read as standing for theproposition that, in an appropriate case, Rule 137 may be relied uponto impose sanctions. The appellant in Bachmann did not give us arecord we could explore to test the trial court's reasoning against anabuse of discretion standard. The trial court may have concluded thatthe nonappearance of the defendant in Bachmann, in violation ofRules 90(g) and 237, in itself a ground for sanctions, was exacerbatedby the filing of a notice of rejection in a case where the defendantforfeited the right to rejection by failing to appear at the arbitration.It is conceivable that a notice of rejection, under certaincircumstances, could be found to have been filed for an improperpurpose within the meaning of Rule 137 in such a case." Gershak,317 Ill. App. 3d at 22, 738 N.E.2d at 607.

Furthermore, the Gershak court pointed out that in Bachmann, the "sparse record led us toassume that the trial court had a record before it that revealed an improper purpose behind the failureto affix a proper signature and justified Rule 137 sanctions." Gershak, 317 Ill. App. 3d at 24, 738N.E.2d at 609. The Gershak court also rejected the distinction between a complete lack of asignature and an improperly signed paper. The court rejected the distinction because it created anirrebuttable presumption of improper purpose and overlooked the penal nature of the rule. The courtalso discouraged a "tortured analysis" of signatures because a judge possesses enough tools to punishlawyers who obfuscate and delay. The court went on to hold that "absent evidence of an improperpurpose that meets the test of Rule 137, a signature defect in a notice of rejection is de minimis." Gershak, 317 Ill. App. 3d at 25, 738 N.E.2d at 609.

We find the Gershak reasoning applies to the present matter. We reject Starr's invitation toconduct a tortured analysis of the signature on the Rule 137 motion nor will we make a distinctionbetween an unsigned paper or a defectively signed paper. Gershak, 317 Ill. App. 3d at 25, 738N.E.2d at 609. The record is adequate. The evidence adduced at the hearing demonstrates thepurpose behind the motion, symbolized by the signature, was entirely proper. Mallon and Riffnerwere promoting and protecting the integrity of the administration of justice while bowing topracticalities to save their client money. Furthermore, Starr provided no evidence that the initialsignature prejudiced Starr's defense or denied him an opportunity to be heard.

We reject Starr's attempted perversion of Rule 137 into a hypertechnical shield against theprosecution of his egregious conduct. Starr's interpretation manipulates Rule 137 against itself toharass and delay appropriate sanctions proceedings meant to punish the patent abuse of the judicialsystem conducted by Starr and Calcagno. The holding urged by Starr would transmogrify a deminimus signature flaw into a quasi-jurisdictional defect, rendering meaningless all time and expensespent by the litigants, their lawyers, the witnesses, and the court. We find, therefore, that the trialcourt did not abuse its discretion in allowing Mallon to resign the motion for sanctions and denyingStarr's motion to strike.

Starr's argument that the court improperly found that plaintiff provided sufficient evidenceto award fees also fails. In considering the award of reasonable attorney fees, the trial court shouldconsider a variety of factors. Olsen v. Staniak, 260 Ill. App. 3d 856, 865, 632 N.E.2d 168, 176(1994). These include "the skill and standing of the attorney employed, the nature of the case, thenovelty and difficulty of the issues involved, the degree of responsibility required, the usual andcustomary charge for the same or similar services in the community, and whether there is areasonable connection between the fees charged and the litigation." Olsen v. Staniak, 260 Ill. App.3d 856, 865-66, 632 N.E.2d 168, 176 (1994), citing Chicago Title & Trust Co. v. Chicago Title &Trust Co., 248 Ill. App. 3d 1065, 618 N.E.2d 949 (1993). A trial court's decision as to thereasonableness of attorney fees will not be reversed absent an abuse of discretion. Selvy v. Beigel,309 Ill. App. 3d 768, 723 N.E.2d 702 (1999).

A party may recover fees under Rule 137 that were incurred because of the sanctionablepaper or pleading. 155 Ill. 2d R. 137. Recoverable fees under Rule 137 include those incurred inpursuit of unsuccessful motions. Ashley v. Scott, 266 Ill. App. 3d 302, 307, 640 N.E.2d 677, 681(1993). A party may also recover fees incurred in prosecuting a motion for sanctions. Bosch DieCasting Co. v. Lunt Manufacturing Co., 236 Ill. App. 3d 18, 33, 603 N.E.2d 546, 556 (1992). Feesare recoverable under Rule 137 even where they are "lumped," and even for unaccounted-for timeentries. Riverdale Bank v. Papastratakos, 266 Ill. App. 3d 31, 639 N.E.2d 219 (1994). "[C]ounselis not required to record how each minute of time was expended, but should identify the generalsubject matter involved in the time expenditure." Ashley, 266 Ill. App. 3d at 306, 640 N.E.2d at 680.

Here, the trial court conducted a hearing on the fees and reviewed the affidavit and amendedaffidavit of Mallon. Counsel also was able to cross-examine Mallon regarding the time entries. Thecourt determined, based upon the evidence, that the hourly rate of the attorneys was reasonable. Additionally, the court reduced the fee award specifically by those amounts that may have beenawarded as part of sanctions against Calcagno in the bankruptcy proceedings, and by amounts thatthe attorneys did not bill to the client.

We find that Starr's argument that the time entries for a particular day must be itemized asto the particular task performed pursuant to Kaiser v. MEPC American Properties, Inc., 164 Ill. App.3d 978, 518 N.E.2d 424 (1987) and Mars v. Priester, 205 Ill. App. 3d 1060, 563 N.E.2d 977 (1990),to be inapposite. Those cases concerned fee-shifting pursuant to contracts and did not arise in a Rule137 context where an attorney's wrongdoing was the cause of the fees. As stated by the Riverdalecourt, an "isolated focus on each reimbursable component part of preparation and trial is notnecessary where false allegations made without reasonable cause are determined to be thecornerstone of the entire baseless lawsuit." Riverdale, 266 Ill. App. 3d at 43, 639 N.E.2d at 228. An isolated focus is not necessary here because the costs claimed were incurred because of Starr'sfiling of an appearance and two motions to dismiss, argument of the motions to dismiss, andparticipation in a two-day jury trial on behalf of a nonexistant tenant. Additionally, the trial courtwas in the best position to observe the witnesses supporting the fees, and we will not disturb thecourt's credibility determinations. Accordingly, we find that the trial court did not abuse itsdiscretion in awarding fees for expenses incurred after Starr's filing of an appearance on November7, 1997.

We do, however, reverse the trial court's award of $105 for the Robertson's filing fee for theinitial complaint. This amount was incurred prior to the filing of any pleading or paper filed byStarr. Therefore, it is not an expense "because of" Starr's violation within the ambit of Rule 137. We therefore reduce the sanctions award to $23,799.25.

Affirmed as modified.

HARTMAN and KARNEZIS, J.J., concur.