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06/12/96 ANDREA E. KELLETT v. MICHELLE ROBERTS

June 12, 1996

ANDREA E. KELLETT, PLAINTIFF-APPELLEE,
v.
MICHELLE ROBERTS, DEFENDANT AND THIRD-PARTY PLAINTIFF-APPELLANT (LAURIE BYRNE, THIRD-PARTY DEFENDANT; PARRILLO, WEISS AND O'HALLORAN, APPELLANT).



Appeal from the Circuit Court of Du Page County. No. 94-AR-2278. Honorable Edmund P. Bart, Judge, Presiding.

Released for Publication July 31, 1996.

The Honorable Justice Geiger delivered the opinion of the court: McLAREN, P.j., and Hutchinson, J., concur.

The opinion of the court was delivered by: Geiger

The Honorable Justice GEIGER delivered the opinion of the court:

The defendant and third-party plaintiff, Michelle Roberts, and her counsel, Parrillo, Weiss and O'Halloran (Parrillo, Weiss), appeal from the orders of the trial court denying her motion for sanctions under Supreme Court Rule 137 (155 Ill. 2d R. 137), and sanctioning her pursuant to Supreme Court Rules 91(b) (145 Ill. 2d R. 91(b)), 219(c), and 237 (134 Ill. 2d Rs. 219(c), 237) by debarring her right to reject an arbitration award in favor of the plaintiff, Andrea Kellett, and awarding the plaintiff attorney fees and costs. We affirm in part, reverse in part, and remand.

The plaintiff brought this action for personal injuries she allegedly sustained in a traffic accident. The plaintiff, a passenger in an vehicle driven by the third-party defendant, Laurie Byrne, alleged that she was injured when the defendant's vehicle struck Byrne's vehicle from behind. The defendant subsequently filed a third-party complaint seeking contribution from Byrne for her alleged negligence.

Prior to Byrne's being served with summons on the third-party complaint, the plaintiff filed a motion for sanctions pursuant to Supreme Court Rules 137 and 219(c), going both to Parrillo, Weiss' failure to investigate or consult with the defendant prior to filing the third-party complaint and to the defendant's refusal to comply with discovery. On January 23, 1995, the trial court awarded the plaintiff sanctions of $7,384.55, finding, inter alia, that the attorney fees requested in the amended affidavit filed by her counsel at a rate of $175 per hour were reasonable and customary. The defendant's motion to reconsider the sanctions order was subsequently denied, with an additional $2,625 in fees awarded for what the trial court deemed to be the frivolous motion to reconsider. Following an appeal by Parrillo, Weiss, the sanctions awards were affirmed. See Kellett v. Roberts, 276 Ill. App. 3d 164, 213 Ill. Dec. 26, 658 N.E.2d 496 (1995).

The case, originally set for arbitration on January 4, 1995, was arbitrated on April 6, 1995. Although her counsel was present, the defendant did not attend the arbitration. The arbitrators entered an award in favor of the plaintiff and third-party defendant and against the defendant and third-party plaintiff. The award further stated the arbitrators' finding "that the Defendant/Third Party Plaintiff failed to comply with Supreme Court Rule 237 by failing to appear pursuant to notice." In addition, the arbitrators entered a written Rule 91(b), finding that the defendant failed to participate in the hearing in good faith and in a meaningful manner, noting as the factual basis that "Counter Plaintiff [sic] presented no evidence whatsoever to support her claim against the Third Party Defendant."

The following day, the plaintiff filed a motion seeking sanctions against the defendant pursuant to Rules 91(b), 219(c), and 237, for her failure to appear in person at the arbitration and her failure to meaningfully participate in the proceedings. The plaintiff sought to debar the defendant from rejecting the arbitration award as well as an award of attorney fees incurred in connection with the preparation for and attendance at the arbitration and the instant motion.

In her response, the defendant attached an affidavit in which she averred that she had not received the letter of her attorneys informing her of the rescheduled arbitration date. The defendant argued further that the Rule 91(b) finding was entered only as to the third-party claim and that debarring her from rejecting the award would deprive her of her right to trial by jury and would be unusually harsh. Additionally, the defendant contended that the "outrageous" attorney fees requested by the plaintiff were not incurred as a result of the defendant's failure to appear in person at the arbitration.

On May 5, 1995, the trial court granted the plaintiff's motion, sanctioning the defendant pursuant to Rules 91(b), 219(c), and 237 by debarring her right to reject the award of the arbitrators. In addition, the court entered judgment on the complaint in favor of the plaintiff and against the defendant in the amount of $18,000 plus costs and entered judgment in Byrne's favor on the third-party complaint. The court continued the issue of monetary sanctions against the defendant to a later date.

Thereafter, the defendant served the plaintiff with her motion for sanctions pursuant to Rule 137. In her motion, the defendant stated that although the plaintiff's verified complaint alleged that she suffered lacerations in the traffic accident, the plaintiff admitted in her deposition testimony that she did not sustain any cuts or lacerations in the accident. The motion also attacked the complaint's allegations that the plaintiff suffered mental anguish and that the defendant failed to equip her vehicle with adequate brakes as being without a factual basis.

On July 6, 1995, the trial court granted the plaintiff's motion for attorney fees in the amount of $2,537 plus costs in the amount of $228, granted Byrne's motion for attorney fees and costs totalling $2,483.30, and denied the defendant's motion for Rule 137 sanctions. In addition, the court granted the plaintiff's motion to voluntarily dismiss from the verified complaint the allegation of lacerations. The defendant timely appealed.

On appeal, the defendant first contends that the trial court erred in denying her motion for Rule 137 sanctions. Rule 137 imposes an affirmative duty on both litigants and counsel to conduct an investigation of the facts and the law before the filing of an action, pleading, or other paper. O'Brien & Associates, P.C. v. Tim Thompson, Inc., 274 Ill. App. ...


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