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Burrows v. Pick

August 06, 1999

MARLA M. BURROWS, PLAINTIFF-APPELLANT,
v.
HAROLD R. PICK, A/K/A COLONEL HAROLD R. PICK, DEFENDANT-APPELLANT.



The opinion of the court was delivered by: Justice Buckley

Appeal from the Circuit Court of Cook County. The Honorable Roland C. Riley, Judge Presiding.

JUSTICE BUCKLEY delivered the opinion of the court:

This case arises out of a contract between Marla Burrows, plaintiff, and Harold Pick, defendant, for defendant's appraisal and sale of plaintiff's personal property in exchange for a commission of 25% of the sale proceeds. Plaintiff filed a four-count amended complaint against defendant alleging breach of contract, conversion of personal property, consumer fraud, and breach of fiduciary duty. The trial court granted defendant's motion for summary judgment as to counts I through III of the amended complaint but denied summary judgment as to count IV, which alleged breach of fiduciary duty. The trial court also granted defendant's petition for sanctions pursuant to Supreme Court Rule 137 (155 Ill. 2d R. 137) and, subsequently, granted defendant's fee petition, awarding fees in the amount of $5,000. Plaintiff appeals and raises two issues: (1) whether the trial court abused its discretion in awarding Rule 137 sanctions; and (2) whether the trial court's award of $5,000 in sanctions under Rule 137 is excessive where the trial court held that a genuine issue of material fact existed on the breach of fiduciary duty count.

In May 1989, plaintiff contracted with defendant to appraise all of her personal property located in her home in Winnetka, Illinois, and, in addition, to conduct a house sale of all of the items in exchange for a commission of 25% of the sale proceeds. Defendant appraised the property at a value of $174,481.

Prior to the house sale of the property, plaintiff removed some of the appraised property, having a value of $71,865, and shipped it to her home in Colorado. Plaintiff also gave gifts of some of the appraised property, having a value of $4,700. Thus, there remained $98,609 in property to be sold at the house sale.

Defendant allegedly conducted the sale at plaintiff's residence in Winnetka on November 10-12, 1989. After the sale, defendant prepared an appraisal which, according to defendant, represented the unsold property that was to be donated to a recognized charity. According to defendant, the appraisal of the remaining property totaled $42,037.

According to plaintiff, she and her accountant made repeated demands on defendant for an accounting of the items sold. Approximately six months after the sale, defendant provided a short summary listing the proceeds of the sale and various expenses incurred. This document reflected that the house sale garnered $13,168 and, that after subtracting defendant's commission and various expenses, a total of $3,434.09 was due plaintiff.

Plaintiff filed a three-count complaint against defendant on November 14, 1991. Count I alleged breach of contract and sought an accounting and injunctive relief. Count II sought damages for bailment and conversion of personal property. Count III sought damages for violation of the Consumer Fraud and Deceptive Business Practices Act (815 ILCS 501/1 et seq. (West 1992)). Plaintiff's deposition took place on July 15, 1994. Defendant was deposed on November 14, 1994, at which time he was on medication. Defendant's deposition was continued and he was deposed a second time on July 17, 1995. Thereafter, on October 31, 1995, plaintiff filed an amended complaint restating counts I through III and adding a fourth count for breach of fiduciary duty. On April 18, 1997, plaintiff provided an evidentiary deposition.

Subsequently, defendant filed a motion for summary judgment and for sanctions pursuant to Rule 137. The trial court granted summary judgment in favor of defendant as to counts I through III but denied summary judgment as to count IV. On December 23, 1997, the trial court granted defendant's motion for sanctions. On February 27, 1998, the trial court awarded defendant $5,000 on his petition for attorney fees. Plaintiff now appeals.

The first issue for our consideration is whether the trial court abused its discretion in granting defendant's motion for sanctions pursuant to Supreme Court Rule 137 (155 Ill. 2d R. 137) against plaintiff for failure to conduct a reasonable inquiry.

Rule 137 provides in relevant part:

"The signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion or other paper; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good-faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation." 155 Ill. 2d R. 137.

The purpose of Rule 137 is to

"prevent abuse of the judicial process by penalizing claimants who bring vexatious and harassing actions based upon unsupported allegations of fact or law." Senese v. Climatemp, Inc., 289 Ill. App. 3d 570, 581 (1997).

The purpose is not to punish litigants and their attorneys simply because they have been unsuccessful in the litigation. Espevik v. Kaye, 277 Ill. App. 3d 689, 697 (1996).

The burden on a party seeking sanctions is to show that the opposing party made untrue and false allegations without reasonable cause. In re Estate of Wernick, 127 Ill. 2d 61, 77 (1989). The trial court must employ an objective standard to determine whether a party made a reasonable inquiry; subjective good faith is insufficient to meet the burden of Rule 137. Edwards v. Estate of Harrison, 235 Ill. App. 3d 213, 221 (1992); In re Marriage of Irvine, 215 Ill. App. 3d 629, 638 (1991).

When reviewing a circuit court's decision to impose sanctions, the appellate court must determine whether the circuit court's decision was informed, based on valid reasons, and followed logically from the circumstances of the case. In re Estate of Smith, 201 Ill. App. 3d 1005, 1009-10 (1990). The law is well settled that the appellate court should give considerable deference to the court's decision to impose sanctions and that decision will not be reversed absent an abuse of discretion. Yassin v. Certified Grocers of Illinois, Inc., 133 Ill. 2d 458, 467 (1990).

Plaintiff argues that sufficient facts and circumstances existed at the time of the filing of the complaint to state a cause of action for breach of contract, conversion, and fraud. According to plaintiff, the facts known to her at the time she filed the complaint were as follows: (1) plaintiff hired defendant to appraise property in her home; (2) defendant appraised the property in the amount of $174,000; (3) plaintiff subsequently removed some property having an appraised value of approximately $75,900; (4) plaintiff contracted with defendant to conduct a house sale of the remaining property valued at $98,100; (5) defendant allegedly conducted the house sale; (6) after the house sale defendant did not provide plaintiff with any receipts, records, reports, or statements as to the results of the sale; (7) defendant informed plaintiff that the unsold property had a value of $40,000 and that it was donated to charity; (8) after several months of demands for information, defendant provided plaintiff with a limited two-page statement stating that the sale garnered $13,000; and (9) defendant has not yet provided plaintiff with any documentation, receipts, or funds from the sale.

In response, defendant contends that pleading facts sufficient to support a cause of action is not enough. Defendant argues that plaintiff must have proof to support the allegations of her complaint otherwise sanctions are appropriate. Defendant points to the following testimony taken at the discovery deposition of plaintiff on July 15, 1994, in support of his assertion that there is no factual basis for plaintiff's allegations:

"Q. Well, do you have any knowledge that [defendant] did in fact take any of your personal property or that any member of his organization took any of your personal property?

"A. Not personal knowledge. But what else could it be?

"Q. Are you just ...


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