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Spircoff v. Stranski

November 02, 1998


The opinion of the court was delivered by: Justice O'mara Frossard

Appeal from the Circuit Court of Cook County

No. 97 L 05076

Honorable Richard E. Neville, Judge Presiding.

In a prior criminal case, defendant Cathie Stranski pled guilty to, and was convicted of, felony theft over $100,000 for misappropriating monies from plaintiffs, her former employers. Defendant paid plaintiffs $25,000 in restitution. Plaintiffs filed this civil action against defendant to recover damages in excess of the $25,000 in restitution already paid by defendant. At issue on appeal is: (1) whether the trial court erred in finding that defendant's payment of restitution to plaintiffs in a prior criminal case does not bar the victim from bringing a subsequent civil action against defendant to recover additional damages; (2) whether defendant's affidavit raises a genuine issue of material fact precluding the entry of summary judgment; (3) whether defendant's guilty plea in the prior criminal action established a specific dollar amount upon which a judgment may be entered in a subsequent civil action; and (4) whether the trial court abused its discretion by sanctioning defendant. For the reasons that follow, we affirm.


Plaintiffs own, develop and manage real estate in the Chicagoland area. Plaintiffs hired defendant in June 1991 as an administrative assistant to collect rents, deposit the rent receipts into plaintiffs' bank accounts and prepare rent and cash receipt journals. Plaintiffs allege that from April 1992 to May 1995, defendant misappropriated rent receipts totaling $117,510. Specifically, defendant allegedly accepted cash rent payments from plaintiffs' tenants and kept the cash payments for her own personal use. Additionally, she allowed her friends to stay in plaintiffs' property without paying rent.

In a prior criminal case (People v. Stranski, 96 CR 8505 (1996)), defendant was charged with theft and, in an order entered December 19, 1996, was sentenced to 36 months' probation. Her probation was subject to the performance of 300 hours of community service and the payment of restitution to plaintiff Spircoff Realty in the amount of $25,000. Defendant tendered a check for $25,000 in court that day.

Plaintiffs filed their complaint against defendant on May 1, 1997, alleging causes of action for conversion, breach of fiduciary duty and breach of contract stemming from defendant's alleged misappropriation of funds from April 1992 to May 1995. Defendant filed a motion to dismiss on May 20, 1997, which was withdrawn on July 24, 1997. Defendant filed her answer to plaintiffs' complaint on August 18, 1997. As defendant's first and only affirmative defense, she states that her payment of $25,000 in restitution to plaintiffs in the prior criminal action constitutes a complete defense to this action. Defendant's affirmative defense was stricken by the trial court in an order entered September 12, 1997.On October 28, 1997, plaintiffs filed a motion for sanctions against defendant pursuant to Supreme Court Rule 137 (134 Ill. 2d R. 137). The motion alleged that defendant, in her answer to plaintiffs' complaint, denied the allegation that she pled guilty in the prior criminal case to the crimes of theft and deception over $100,000. Plaintiffs assert that defendant did indeed have knowledge of her guilty plea and they attach a transcript of the plea in the criminal case in support of their contention. Defendant filed a response to the motion and attached the affidavit of defendant. The court denied plaintiffs' motion for sanctions on January 20, 1998.

Plaintiffs filed their motion for summary judgment on November 10, 1997, asking for judgment against defendant in the amount of $92,510 ($117,510 less the restitution payment of $25,000) plus costs. Plaintiffs filed a supplement to their motion for summary judgment on January 6, 1998. On January 20, 1998, the court entered summary judgment in favor of plaintiffs and against defendant in the amount of $100,000 with a credit of $25,000 for restitution paid. The order contained Supreme Court Rule 304(a) language, making it final and appealable.

On February 17, 1998, defendant filed her motion to reconsider the order of January 20, 1998, granting plaintiffs' motion for summary judgment. On February 18, 1998, the trial court entered an order finding that, "on [January 20, 1998,] a partial summary judgment was entered in favor of plaintiffs and against the defendant as to count I of plaintiffs' complaint" and dismissing the cause of action.

On February 27, 1998, plaintiffs filed a motion to vacate the portion of the January 20, 1998, order relating to the denial of plaintiffs' motion for sanctions and to reinstate the motion for sanctions they filed on October 28, 1997. Plaintiffs in their motion state that the motion for sanctions is now appropriate since defendant alleged and realleged her argument regarding the effect of a payment of restitution in a criminal case in almost every pleading filed in the case.

In an order entered March 25, 1998, the trial court denied defendant's motion for reconsideration and granted plaintiffs' motion for sanctions in the form of a fee award to plaintiffs' attorneys in the amount of $600. Defendant filed a timely notice of appeal. She appeals from the trial court's March 25, 1998, order.

II. Standard of Review

In appeals from an order granting summary judgment, a reviewing court examines the record de novo. In re Estate of Hoover, 155 Ill. 2d 402, 411, 615 N.E.2d 736 (1993). A court must consider the affidavits, depositions, admissions, exhibits and pleadings on file and must construe the evidence strictly against the movant. Hoover, 155 Ill. 2d at 410. Summary judgment is appropriate if there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 102, 607 N.E.2d 1204 (1992). ...

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