*1 PRITZKER, Plaintiff-Counterdefendant, C. v. DRAKE TOWER LORRAINE APARTMENTS, INC., al., Third-Party et Defendants Plaintiffs (Abra Wilkin, Third-Party Fourth-Party Defendant Prentice Sons, Inc., al., Plaintiff-Appellee; Fourth-Party H. et Frank Defendants-Appellants; Babka, Inc., Beeby Fourth-Party Hammond
Defendant). (6th Division) First District No. 1 — 94—0120 July 12, 1996. Rehearing Opinion September filed denied September 1996. Modified RAKOWSKI, J., concurring part. part dissenting in *2 (Diane Brook, Jennings, Kathryn Chicago Lord, & I. G. Bissell of Rosen, counsel), Montgomery, appellant and J. of for Frank H. Leslie Sons, & Inc. (James Miller, Gorman, Witous, Chicago Clausen, Caffrey P.C., & of T. Kollross, Ferrini, Palandech, Douglas Margaret Hupp, J. M. and Melinda S. counsel), appellant Dubin, Moutoussamy. Dubin & for (Don Biebel, Reuben, Jr., Chicago P. Gray, H. Paul Altheimer Valente, Greene, counsel), appellee. for Charles A. and Andrew R. the of the court: PRESIDING JUSTICE ZWICK delivered single of whether the trial court We address in this case the by appellants, filed Frank in motions abused its discretion Dubin, Moutoussamy (Stowell), Sons, Dubin & H. Stowell & Inc. (Dubin), sought imposition of Dubin Rule in which Stowell and (134 137) against fourth-party plaintiff, Ill. 2d R. review, we and remand After careful reverse Abra Prentice Wilkin. proceedings. the cause for further Pritzker, against filed plaintiff,
In Lorraine suit Drake Inc., apartment building in Apartments, the owner of Tower alleged improve- Pritzker Pritzker certain 1973 lived. apartment causing penthouse were ments to Wilkin’s thirtieth-floor damage twenty-ninth-floor resi- leak into and Pritzker’s water to 1990, seeking, in separate action Drake dence. filed a Wilkin responsible alia, declaratory judgment was not inter construc- repair costs under the 1973 specified maintenance and litiga- brought Pritzker agreement. then Wilkin into the tion Drake defendant, fourth- filed her own third-party as tion indemnity against certain for contribution and party complaints complaint, filed improvements. This in the 1973 parties involved proj- 1990, Stowell, for the general contractor August named agreed Dubin, firm that ect, as an architectural as well perform inspection certain services. to dismiss Wilkin’s promptly filed motions Dubin them, claiming in affidavits
complaints each and that completed in 1975 improvements had been penthouse 10-year Wilkin’s claims were therefore barred 214(b) (West 1994). repose. statute See 735 ILCS This section 5/13 — relating requires Code Civil Procedure that claims improvement brought real property within after underlying act or omission the claim. mo Stowell included its Stowell, stating principals, the affidavit Frank one of Stowell’s mo work Wilkin’s was finished 1975. Dubin’s tion included construction lien waivers which been delivered Dubin, the end of the work in as the affidavit well of David one of principals. Dubin’s This affidavit also stated that completed by Wilkin’s had been end of 1975.
Wilkin contested the filed motions both Stowell Dubin. ultimately claims, part, by filing avoided dismissal of her knowledge” "personal counteraffidavits stated that she had work in her 1980. She stated she prepared testimony was if to offer to this as a fact called witness. subsequently pleadings discovery responses denying that the construction her home after Stowell and been involved in the case years, deposed by almost three Despite Wilkin was Stowell. prior pleadings, affidavit and Wilkin conceded that she had no personal knowledge representations regarding *3 completion apartment. time of of the construction in the She stated attorneys1 had simply she followed the advice of her and busi manager ness her affidavit past continued on granted her residence The trial court sum mary judgment Dubin, in favor of Stowell and each of whom then moved for sanctions under Rule 137. argued petitions
Both Stowell and Dubin in their for sanctions (1) violations, including Wilkin had committed several Rule 137 (2) verifying filing and a complaint; making time-barred an affidavit containing knowingly statements that were either not untrue or (3) personal within knowledge, represented; her she as and tendering responses discovery. petitions false to also The detailed what purpose Stowell and Dubin claimed be improper to Wilkin’s i.e., complaints against them, keep her desire to Stowell litigation agree hopes they Dubin in the to share litigation. costs
The court denied the for sanctions. The court com- motions that, sooner, mented Dubin filed her action Stowell and present represent 1We note that Ms. Wilkin’s counsel did not her in the proceedings. trial court
590 litigation and that "inconsisten- been involved in the full
would have sig- regularly occur in cies” like the ones noted Stowell "everything to be the custom nificant lawsuits. court found good only practice appeal faith.” and Dubin trial court’s decision sanctions. impose 137 a to sanctions
Supreme Court Rule allows court attorney a is not well party a or who files good-faith fact, by existing a grounded in is not law or warranted modification, law, extension, existing argument or reversal of for the any improper Ill. 2d R. 137. The rule interposed purpose. or is for 134 signature litigant attorney plead an on a of a makes clear that ing pleading and signing party is has read the a certificate Thus, alleged. facts the standard inquiry” made "reasonable evaluating 137 is party’s conduct under Rule one reasonable filing. they ness existed at time of the under circumstances Co., Kahnweiler, & Trust Inc. v. American National Bank Bennett (1993). 1002, 1007, 426 App. 256 3d 628 N.E.2d Ill. impose under Rule
The determination of whether
sanctions
within the sound discretion of
trial court.
137 rests
appeal
deny
great weight
impose or
is entitled
an
In re
will
on review absent
abuse
discretion.
disturbed
(1989);
61, 77-78,
(1989),
Ill.
127
2d
We first address
claims
filing a
failing to
error in
sanction Wilkin
trial court committed
rely upon
Yavitz
Edward
claim. Both Dubin and
time-barred
Eye
(1993),
Center,
Allen,
We not reconsider the court’s in Yavitz. presented Yavitz, different. charged this case is In the court plaintiff knowledge meaning with toas the existence and of the negotiated arbitration Plaintiff clause. the contract with de attempting rely agreement fendant and was basis for damages. contrast, his claim for nothing there is in this record to knowledge indicate that Wilkin had that her claim was time-barred prior to the Accordingly, defendants’ motions to we dismiss. find no abuse of the court’s decision to sanctions for Wilkin’s mere act of a time-barred claim. not regard reach same conclusion with to the remain- by record, claims made reviewing and Stowell. After
we conclude that the trial court failing abused its discretion in impose only can Wilkin for what be characterized as serious and blatant violations of Rule 137. These violations resulted in being Stowell and Dubin involved almost three ongoing, expensive litigation. needless and attorneys
When confronted deposition, Stowell’s basis, readily otherwise, admitted that she no reasonable that the work on her 1980. She stated: 1975;
(cid:127) its work on her any her; (cid:127) After Stowell never did work for (cid:127) long, Aside from the fact that construction took too she was done; not dissatisfied the work (cid:127) understanding any It was done apartment; Stowell caused the leaks Pritzker’s (cid:127) She did not know if Stowell ever visited her after lawsuit, why brought When asked Stowell had been Stowell, it stated that was not her but that she was in sue favor of so might why that Stowell "share the costs.” When asked *5 592 through 1980 apartment the in her continued claimed that work
she completed in Wilkin stated she the work had been when knew representatives. simply upon had relied her that she merely deposition testimony appeal, On Wilkin claims her argues that no was "perplexion and confusion.” She evidence reflects made rea- presented by or Dubin indicate that she Stowell allegations she at the times inquiry sonable into the truth of her through 1980. claims that work continued her home She verified its sanc- the trial court was therefore within argues record which establish tions. She also the contains documents believing in her she had reasonable basis work by end, she relies on letters written past To may greenhouse have been in 1977 which indicate that Stowell time, documentary showing leaking at Stow- as well evidence to Du- skylight regard in her 1983. With ell installed a inspection report bin, never tendered a final Wilkin notes required under process, end as was to do at the construction agreement. terms 1973 of the arguments. Simply nothing in reject put, Wilkin’s we see might suggested have Wilkin that this record through particularly after Stowell construction continued depositions stating ended Dubin submitted records work by and now anything, in 1975. If the letters written had been upon by the claim that the work relied letters, prior than to suit. In the completed more instead, work, repair implies, as Wilkin but not offer to defective does greenhouse caulking. Stowell on the offered to do maintenance plus profit.” fact "plus cost 10% 10% the work at its overhead in the of a bid for an the 1977 work context that Stowell discussed was a negates any implication that the 1977 work fee additional Moreover, nothing to there is of the 1973 construction. continuation any way related suggest skylight the 1983 construction was agreement. the 1973 construction spurious. arguments equally to Dubin are respect
Wilkin’s "during period the construction claimed in her affidavit any reports receive [she] late at least 1980 did not from quality regarding progress [Dubin] whatsoever from however, deposition testimony, Wilkin’s by As made clear work.” was reports receive construction surprising it is not that she did not conceded, ultimately she 1975 and 1980. As Wilkin Dubin between completed in late 1975 when in her had been knew home apartment. accepted work and moved back she court, the findings "good faith” made Despite the least, was, very sign- record establishes that Wilkin reckless Indeed, a strong her Dubin and Stowell make counteraffidavits. concluding deliberately case lied under oath to extract example, discovery unwarranted For showed that settlement. began paying on her in late 1975 as a an increased assessment home living result space increase in which resulted from the 1973 personal knowledge of the 1975 construction. Wilkin also confirmed filed, at completion date when she the outset of case Drake, an affirmative defense that Drake’s claim laches. She in this "the was barred stated work to the alteration about 1975.” *6 summary against Wilkin also a claim- judgment motion Drake ing essentially completed May "[t]he construction was my family.” and I moved to back with Under such facts, compelled reject findings we are the trial court’s and hold failing court abused its discretion in to assess sanctions. are litigation
We not insensitive to complex the demands civil put can plaintiffs on both Recently, panel and defendants. this recognized may generally rely that clients on the advice of their Keating counsel. v. Estate Golding, Robert of 1995). (February 9, 1996, pro opinion nunc tunc December In our today away general pronouncement. we not back from this recognize that requirements of ap Rule can be difficult to preciate for pleadings affidavits, those unfamiliar with court particularly lawyers when and others are retained to "handle the recognition cannot, however, details.” The of basic principle taking relieve an affiant from personal responsibility making violating false objective good-faith oath or for requirements of Rule placing 137. Rule 137 is the responsibility deliberate in on who signs ever requirements, including in violation of its litigants. The is designed rule an effective deterrent exact type litigation of abusive practices documented this record. litigants If liability such as Wilkin were able to avoid under the rule advice, simply reliance on their counsel’s the benefits of as a greatly rule deterrent would be undermined. reasons, the foregoing
For judgment we reverse the of the circuit County court Cook the motions Stowell and Dubin for an award We remand the to the Wilkin. cause proceedings circuit court for further with directions that the court Supreme pursuant provisions to the appropriate penalty an assess Court Rule 137.
Reversed and remanded with directions.
LEAVITT, J., concurs.2 RAKOWSKI, concurring part dissenting part: JUSTICE an judgment majority I was not concur with . abuse discretion for the court sanctions for Wilkin’s respect- under the facts of this case. I act of a time-barred claim fully dissent, however, part majority’s failing its discretion in to award concludes that the trial court abused sanctions. sanctions rests the sound discretion award Although there are facts the record that
the trial court. way. It award, the other was for the an there are also facts that cut is we have question not how would decided trial court to call. an abuse of discre- but the trial court’s decision was whether disagree I strongly not. tion. I submit it was respectfully strong case is made for conclud- majority’s statement deliberately lied under oath extract unwarranted judgment of circuit I affirm the Accordingly, settlement. court. *7 panel Egan’s retire- after Justice on the Leavitt was substituted 2Justice this filed with briefs Leavitt has reviewed the
ment. Justice disposi- fully participated in the July and has otherwise court on case.