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06/29/87 Bill Martzaklis, v. 5559 Belmont Corporation

June 29, 1987





510 N.E.2d 1148, 157 Ill. App. 3d 731, 110 Ill. Dec. 117 1987.IL.916

Appeal from the Circuit Court of Cook County; the Hon. Franklin J. Kral, Judge, presiding.


JUSTICE O'CONNOR delivered the opinion of the court. QUINLAN, P.J., and BUCKLEY, J., concur.


Appellant Andrew Cardaras, defendant 5559 Belmont Corporation's attorney, appeals from an award of attorney fees. On appeal he argues that: (1) the trial court lacked jurisdiction to enter an order for fees on January 17, 1986; and (2) the award of fees as a sanction pursuant to Supreme Court Rules 219(c) and (d) was improper and the amount of fees was excessive. We affirm.

In February 1977 the parties to the underlying action entered into an oral agreement for the remodeling of the Spartan Restaurant, owned by defendant 5559 Belmont Corporation. Plaintiff Bill Martzaklis (Martzaklis) provided labor and materials for the remodeling work, which was completed on April 25, 1977. On July 14, 1978, Martzaklis filed a complaint against defendants to foreclose a mechanic's lien, which was later amended to add a breach of contract count. An order closing discovery was entered on December 15, 1980, effective January 26, 1981. Defendants filed a countercomplaint on September 8, 1981, for breach of contract. The trial took place on various dates in 1983 and 1984.

At trial, plaintiff attempted to introduce his group exhibit No. 14, which consisted of copies of mechanic's lien waivers by various carpenters who had done work for plaintiff in conjunction with the remodeling of the Spartan Restaurant. The defendants' objection to the entry of this exhibit as hearsay and as being unauthenticated was overruled. The court also ruled that the defendants would not be allowed to introduce testimony of a handwriting expert unless it could be shown that the individuals who had signed the lien waivers were unavailable to testify in court.

Thereafter, Andrew Cardaras, attorney for defendant 5559 Belmont Corporation, employed an "investigator" to contact these potential witnesses. However, the investigator misrepresented himself as a State's Attorney investigator and made unannounced late night visits to the potential witnesses and the persons who had previously done carpentry work for Martzaklis. Several of the parties, recent Greek immigrants, were coerced into signing documents they did not understand.

Following the visits by the "investigator," defendants' counsel sent letters by certified mail to at least four witnesses. The letters were accompanied by subpoenas requiring the witnesses to produce their income tax returns. The letters stated that "[if] your testimony will be that this is not your signature or that you did not receive any funds from Mr. Bill Martzaklis, then you need not bring any documentation with you." The letters also stated that "you will recall that someone previously had spoken to you."

Subsequently, on March 1, 1984, the plaintiff filed a motion for sanctions pursuant to Supreme Court Rules 219(c) and (d) alleging that the defendants had violated the order closing discovery by "engaging in intimidation and deception to obtain discovery." Plaintiff also filed a petition for fees on April 6, 1984.

In an order entered May 16, 1984, the court ruled on the motion for sanctions and barred seven prospective witnesses of the defendant from testifying at trial. These witnesses were persons whose affidavits were included in plaintiff's group exhibit No. 14. The court also granted plaintiff's petition for fees but reserved ruling pending submission of evidence of the time expended by plaintiff's attorneys.

On September 4, 1984, plaintiff filed a petition for fees and schedule of services and an agreed order was entered which read in part:

"That this court . . . shall retain jurisdiction of the pending proceedings which involved the Petition for Attorney's Fees which was granted on May 16, 1984, and the future determination of those fees which has not been ruled upon . . .. This court shall have jurisdiction to hear the matters referred to herein even after the Court enters Judgment in the underlying ...

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