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March 4, 1994


Appeal from the Circuit Court of De Kalb County. No. 89-L-84. Honorable John W. Countryman, Judge, Presiding.

Rehearing Denied and Released for Publication April 7, 1994.

McLAREN, Inglis, Geiger

The opinion of the court was delivered by: Mclaren

JUSTICE McLAREN delivered the opinion of the court:

Attorney Robert Steven Wilson, who represented the plaintiff, Lonnie Swanson, in the latter's suit for negligence, appeals a trial court order imposing sanctions on him and his client pursuant to Supreme Court Rule 137 (134 Ill. 2d R. 137). The sanctions were based on the court's finding that plaintiff's claim against Jeffrey Lizer for negligent entrustment was frivolous. Defendants Jeffrey and Diane Lizer purport to cross-appeal from the part of the trial court's order that denied sanctions based on the negligence claim that plaintiff pursued against Diane Lizer. We hold that the cross-appeal is not properly before us, as we have already dismissed it and it has never been reinstated. We hold further that the trial court acted properly in imposing sanctions based on the negligent entrustment claim. Thus, we affirm.

On August 8, 1987, plaintiff was injured when the motorcycle he was driving collided on Route 38 with a van occupied by defendant Diane M. Lizer. A short time before this collision, Lizer's van, which she had been driving with the permission of her husband, defendant Jeffrey Lizer, was struck by a car driven by Terri L. Cater when Cater's car crossed the center line as it approached the Lizer vehicle. This initial accident killed Cater, seriously injured Diane Lizer, and disabled Lizer's vehicle.

On August 8, 1989, plaintiff, represented by attorney Wilson, filed a four-count complaint. Count I, directed against Gary and Diana Cater, the administrators of Terri Cater's estate, alleged that Terri Cater's negligent driving caused plaintiff's collision with Lizer's stalled vehicle. Count II alleged that Diana Cater, Terri Cater's mother, was liable for plaintiff's injuries because she negligently entrusted her car to Terri Cater. Count III, directed against Diane Lizer, alleged that her negligence also proximately caused plaintiff's injuries. Count IV alleged, in purely Conclusional fashion, that Jeffrey Lizer negligently let Diane Lizer drive the van and that his negligence proximately caused the collision that injured plaintiff.

Each defendant answered and denied liability. The Lizers also filed a two-count counterclaim against plaintiff. The cause proceeded to a jury trial. Plaintiff first called Diane Lizer as an adverse witness. Much of the testimony plaintiff sought to elicit from Diane Lizer was excluded by the operation of the Dead Man's Act (735 ILCS 5/8-201 (West 1992))). After brief testimony from two police officers who investigated the accident scene, plaintiff called Jeffrey Lizer as an adverse witness. Attorney Wilson asked Lizer whether Lizer owned the vehicle Diane Lizer drove on the day of the accident and whether he gave her permission to use the vehicle that day. Lizer answered yes to these questions and was not questioned further.

After brief testimony from several other witnesses, all the defendants moved for directed verdicts. The trial court directed verdicts on all the counts and dismissed the case. The Judge commented specifically that plaintiff had introduced no evidence of negligence or proximate causation to support any of the counts. The court proceeded to hear testimony on the Lizers' counterclaim. However, as the court again invoked the Dead-Man's Act to exclude most of the relevant testimony, it rapidly directed a verdict against the Lizers. On December 3, 1991, the court entered a written order granting directed verdicts on all the counts of the claim and the counterclaim.

On January 6, 1992, plaintiff moved to reconsider the dismissal of his complaint. On January 22, 1992, the Lizers moved for sanctions against plaintiff and his attorney pursuant to Rule 137. The Lizers alleged that attorney Wilson had not responded to the Lizers' counsel's numerous attempts to negotiate or settle the case, even after the court at a pretrial conference had directed Wilson to do so. The Lizers alleged further that during trial attorney Wilson told the Lizers' attorney that plaintiff had no valid cause of action against the Lizers and that Wilson was really seeking the Lizers' help in obtaining a recovery against the Caters. Also, the petition alleged that, at all relevant times, attorney Wilson knew or should have known that the claims against the Lizers were specious and unsubstantiated and that these counts were not brought in good faith. The petition included a detailed account of the hours that the Lizers' counsel had expended in defending the Lizers against the allegedly specious claims and a detailed account of the attorney fees the Lizers thereby incurred. The Lizers requested that the court award them the $7,025.83 in attorney fees that they had incurred through the trial, plus additional costs resulting from the post-trial proceedings.

On January 30, 1992, the trial court ordered that plaintiff had until February 6, 1992, to respond to the petition. In the meantime, the Lizers' counsel filed a supplemental affidavit requesting attorney fees of $8,812.31.

On February 26, 1992, the court denied plaintiff's motion to reconsider. On March 31, 1992, after it denied plaintiff's motion to strike the petition for sanctions, the court ruled on the petition. The court declined to impose sanctions based on count III of the complaint. The Judge explained that, although Diane Lizer received a directed verdict on this claim, plaintiff's attorney could conceivably have believed with reason that there was some basis for bringing this count of the complaint. However, the court granted the Lizers the attorney fees they incurred in connection with count IV, which alleged negligent entrustment by Jeffrey Lizer. The Judge explained that any reasonable inquiries would have disclosed that there was no basis for alleging that Jeffrey Lizer was liable for negligent entrustment.

The trial court awarded the Lizers 20% of the total fees they had requested. The Judge recognized that the Lizers employed the same attorney to defend them against both counts III and IV of the complaint and that, as a result, the Lizers would have accumulated some of their attorney fees even had count IV never been brought. The Judge concluded that 20% of the overall fees was a reasonable amount to compensate Jeffrey Lizer for the costs he incurred from the frivolous negligent entrustment claim.

Plaintiff filed a Conclusionally phrased motion to reconsider the sanctions order. The Lizers also moved for reconsideration of the denial of sanctions based on count III of plaintiff's complaint. At a hearing that attorney Wilson did not ...

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