Hartmann Realtors v. Biffar
13 N.E.3d 350
Ill. App. Ct.2014Background
- Hartmann Realtors sued Donna Biffar (cosigner) in small claims for $700 to clean/repair a rental after tenant (Biffar’s daughter) vacated; trial court found for Hartmann and awarded fees and costs.
- After Hartmann cleaned, painted, replaced carpet and blinds, Biffar asserted an affirmative defense and filed a counterclaim for negligent spoliation of evidence, alleging Hartmann altered the premises without giving notice or opportunity to inspect.
- Biffar alleged Hartmann’s repairs prevented her from fully defending the small claims complaint and sought offset for any judgment against her.
- Hartmann moved under 735 ILCS 5/2-615 to dismiss the counterclaim and strike the affirmative defense, arguing lack of duty and lack of an underlying lawsuit (hence no spoliation damages).
- The trial court granted dismissal/striking; Biffar did not seek leave to amend before trial; appeal challenges only the dismissal of the counterclaim and striking of the affirmative defense.
Issues
| Issue | Plaintiff's Argument (Hartmann) | Defendant's Argument (Biffar) | Held |
|---|---|---|---|
| Whether counterclaim for negligent spoliation was pled sufficiently | Counterclaim fails: no duty alleged and no underlying lawsuit; therefore no proximate causation or recoverable damages | Hartmann voluntarily undertook preservation (took photos) and cleaning without notice destroyed evidence and prejudiced her defense | Dismissed: counterclaim fails for lack of alleged proximate causation (no underlying suit or reasonable probability of success) |
| Whether affirmative defense based on spoliation was sufficiently pled | Defense insufficient: does not allege new matter that defeats plaintiff’s claim or that cleaning caused inability to prove an underlying suit | Defense says alterations prevented factfinder inspection and prejudiced her defense | Struck: insufficient factual allegations (no allegation she could have prevailed but for the alterations); discovery argument also fails in small claims context |
| Whether claimant could be allowed to amend after dismissal | N/A: Hartmann argued dismissal appropriate; no prejudice shown | Requested opportunity to replead / assert underlying claim (on appeal argued remand to allow repleading) | Court declined to remand for repleading: record showed no set of facts allowing recovery because no underlying suit existed at relevant time |
| Award of appellate attorney fees under lease provision | N/A on merits | Objected to fees beyond $350 trial award | Granted: remanded to trial court to determine reasonable appellate fees and costs under lease provision |
Key Cases Cited
- Stinnes Corp. v. Kerr-McGee Coal Corp., 309 Ill. App. 3d 707 (app. ct. 1999) (section 2-615 motion tests legal sufficiency of pleadings)
- Jackson v. Michael Reese Hosp. & Medical Ctr., 294 Ill. App. 3d 1 (app. ct. 1997) (section 2-615 standard; opportunity to replead where facts could support recovery)
- Chandler v. Ill. Central R.R. Co., 207 Ill. 2d 331 (ill. 2003) (complaint construed liberally; de novo review of 2-615 dismissal)
- Boyd v. Travelers Ins. Co., 166 Ill. 2d 188 (ill. 1995) (no independent spoliation cause; negligent spoliation governed by negligence elements)
- Martin v. Keeley & Sons, Inc., 2012 IL 113270 (ill. 2012) (elements required for negligent spoliation claim)
- Raprager v. Allstate Ins. Co., 183 Ill. App. 3d 847 (app. ct. 1989) (definition of affirmative defense)
- Shimanovsky v. General Motors Corp., 181 Ill. 2d 112 (ill. 1998) (duty to preserve evidence in product-liability/discovery context)