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07/14/97 ROBERTA L. CRIPE v. THOMAS E. LEITER AND

July 14, 1997

ROBERTA L. CRIPE, GUARDIAN OF THE ADULT AND CONSERVATOR OF THE ESTATE OF ROBERTA A. SCHMITZ, PLAINTIFF-APPELLEE,
v.
THOMAS E. LEITER AND THE LEITER GROUP, AN ILLINOIS PROFESSIONAL CORPORATION, DEFENDANT-APPELLANT.



Appeal from the Circuit Court for the 10th Judicial Circuit Peoria County, Illinois. No. 94--L--533. Honorable John A. Barra Judge, Presiding.

As Corrected August 5, 1997. Rehearing Denied August 21, 1997. Released for Publication August 21, 1997.

Present - Honorable Tom M. Lytton, Presiding Justice, Honorable Kent Slater, Justice, Honorable Peg Breslin, Justice. Justice Breslin delivered the opinion of the court. Lytton, P.j., and Slater, J., concur.

The opinion of the court was delivered by: Breslin

The Honorable Justice BRESLIN delivered the opinion of the court:

Plaintiff Roberta Cripe, as guardian for Roberta Schmitz, brought this action for fraud, breach of fiduciary duty and legal malpractice against defendants Thomas Leiter and his law firm, The Leiter Group. The trial court found that section 2-1115 of the Illinois Code of Civil Procedure (Code), 735 ILCS 5/2-1115 (West 1994), did not prohibit Cripe from seeking punitive damages for the common law fraud counts in her complaint, and we granted Cripe's application for leave to appeal pursuant to Supreme Court Rule 308, 155 Ill. 2d R. 308 (3--96--1008). During the course of the litigation, Thomas Leiter failed to comply with a request to produce income tax records, and the trial court held him in indirect civil contempt. Leiter appealed that ruling (3--96--1033), and we consolidated the two appeals. We hold that section 2-1115 does not prohibit a plaintiff from seeking punitive damages when the plaintiff's complaint states a cause of action for common law fraud. We also hold that Leiter must comply with the order that required him to produce his individual income tax returns, and if he does so, the contempt order is to be vacated. Accordingly, we affirm and remand with directions.

FACTS

Roberta Schmitz was the sole beneficiary of two trusts. She hired Leiter to transfer the trusts from the First National Bank of Peoria to the South Side Bank. After the South Side Bank was appointed as the successor trustee of the trusts, it retained Leiter as its attorney with respect to the trusts. Schmitz also retained Leiter to defend a proceeding to declare her incompetent. That proceeding was filed by Schmitz' daughter, Roberta Cripe, who is the current guardian of her estate and the plaintiff herein (Guardian).

In her second amended complaint, the Guardian alleged that Schmitz had received several billing statements in which the defendants made false statements with regard to the number of hours that were spent on the trust matters and the guardianship case. The Guardian further alleged that the defendants knew that these statements were false and that Schmltz suffered $40,000 in damages as a result of her reliance on the statements.

The defendants responded by filing a motion to strike the portions of the complaint that sought punitive damages. The trial court struck the prayer for punitive damages on all counts except those that alleged common law fraud. Thereafter, we granted the defendants' petition for leave to appeal pursuant to Supreme Court Rule 308.

Eventually, the Guardian served the defendants with a request to produce financial documents related to her punitive damages claim. Leiter failed to comply with the request to produce his personal income tax returns, and the trial court found him in indirect civil contempt. The parties agree that Leiter's refusal to comply with the order was for the purpose of obtaining interlocutory review of the discovery order.

ANALYSIS

The certified question in this appeal is whether section 2-1115 of the Code prohibits punitive damages when a plaintiff alleges that an attorney committed common law fraud by falsifying billings.

The General Assembly has prohibited punitive damages in medical and legal malpractice cases by enacting section 2-1115 of the Code, which provides:

"In all cases, whether in tort, contract or otherwise, in which the plaintiff seeks damages by reason of legal, medical, hospital, or other healing art malpractice, no punitive, exemplary, vindictive or aggravated ...


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