Opinion
No. 1-15-3112
12-30-2016
GARRETT FITZGERALD, TIMOTHY P. GIBBONS, and TIM'S SNOWPLOWING, INC. , Plaintiffs-Appellants, v. THOMAS M. O'DONNELL, Defendant-Appellee.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). Appeal from the Circuit Court of Cook County. No. 12 L 4120 The Honorable Eileen Brewer, Judge Presiding. PRESIDING JUSTICE GORDON delivered the judgment of the court.
Justices Lampkin and Reyes concurred in the judgment.
ORDER
¶ 1 Held: Where plaintiffs filed a defamation action against defendant, sanctions under Supreme Court Rule 137 are affirmed when the allegations in the complaint lacked a factual basis. ¶ 2 On September 28, 2015, the trial court entered an order that plaintiffs Garrett Fitzgerald, Timothy P. Gibbons, and Tim's Snowplowing, Inc., were subject to sanctions pursuant to Illinois Supreme Court Rule 137 Ill. S. Ct. R. 137 (eff. July 1, 2013), and ordered them to pay $52,606.25 in attorney fees and costs to defendant Thomas O'Donnell. The trial court found that plaintiffs' third amended complaint against defendant contained false facts in its allegations of defamation by defendant. ¶ 3 On this appeal, plaintiffs make three claims: (1) that the trial court's ordering of sanctions did not follow from the facts presented and was based on suspect or nonexistent reasoning; (2) that the trial court abused its discretion because it was unreasonable to find that plaintiffs' allegations lacked a factual basis; and (3) that it was an abuse of discretion for the trial court to deny defendant's motion for summary judgment but grant defendant's motion for sanctions on the same grounds. ¶ 4 For the following reasons, we find that the trial court did not abuse its discretion and affirm the trial court's order for sanctions.
Illinois Supreme Court Rule 137 provides sanctions for pleadings that are not "well grounded in fact." Ill. S. Ct. R. 137 (eff. July 1, 2013).
¶ 5 BACKGROUND
¶ 6 I. The Parties
¶ 7 The complaint filed by plaintiffs alleges that defendant Thomas M. O'Donnell was a senior member of the Democratic Party of the 47th Ward, of which plaintiffs were also members. O'Donnell was also the president of the Ravenswood Community Council (RCC), a community organization in the 47th Ward, from 2001 until 2012. Plaintiffs' complaint alleges that, in 2011, O'Donnell ran for the office of 47th Ward alderman, but lost; and plaintiffs then "associated" with the new alderman. ¶ 8 Plaintiffs' complaint further alleges that Garrett P. Fitzgerald was the executive director of the Northcenter Chamber of Commerce, located largely in the 47th ward. Timothy P. Gibbons is the principal shareholder of Tim's Snowplowing, Inc., which provides snow clearing and power washing services to businesses located in Chicago. Tim's Snowplowing applied for contracts with RCC in 2009, 2010, and 2011. ¶ 9 Plaintiffs' complaint also alleges that O'Donnell continued as president of the RCC, and that Tim's Snowplowing stopped receiving contracts from the RCC for snow removal after the aldermanic election. O'Donnell neither affirms nor denies these allegations in his answer. Plaintiffs further allege that defendant mailed defamatory letters to various public officials and members of the media in political retaliation, which are discussed below. O'Donnell denies having any involvement with the letters.
¶ 10 II. Complaints
¶ 11 On April 18, 2012, plaintiffs filed their initial complaint claiming on information and belief that O'Donnell, and defendants John Does 1 through 4, mailed a series of anonymous letters to a number of public officials and members of the media in November 2011 and February 2012, containing false and defamatory statements about plaintiffs. The anonymous letters included statements about plaintiffs stating, inter alia, that they were accepting bribes from judicial candidates and from State's Attorney Anita Alvarez to circulate petitions; that plaintiff Fitzgerald was fired from a political campaign for working while intoxicated; and that there were various conflicts of interest in Tim's Snowplowing's acceptance of snowplowing contracts from the City of Chicago. ¶ 12 On November 8, 2012, plaintiffs amended their complaint to include as additional defendants William Helm, Lisa Hwang, and Mark Dillon. Defendants Helm and Dillon were board members of the RRC and defendant Lisa Hwang was allegedly a political associate and girlfriend of defendant Helm. On November 20, 2012, O'Donnell filed a motion to dismiss the amended complaint under Section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 2012)) claiming the complaint failed to state a cause of action, which the trial court granted with leave to amend. ¶ 13 On January 31, 2013, plaintiffs filed a second amended complaint. On February 21, 2013, O'Donnell again filed a motion to dismiss and a motion for sanctions pursuant to Illinois Supreme Court Rule 137. Defendant Lisa Hwang filed a motion to dismiss on March 1, 2013, and defendant Mark Dillon filed a motion to dismiss on March 19, 2013. The trial court granted all of defendants' motions to dismiss under section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 2012)), and granted plaintiffs leave to file a third amended complaint. ¶ 14 On April 23, 2013, plaintiffs filed a third amended complaint containing nine counts against defendants O'Donnell, Hwang, Dillion, and Helm. All defendants filed motions to dismiss under section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 2012), and the trial court dismissed defendants Helm, Hwang, and Dillon with prejudice, as well as counts II through VIII against defendant O'Donnell. The trial court's order left one count to stand: defamation against plaintiffs. This count was primarily based on the allegations contained in paragraph 46 of plaintiffs' third amended complaint, which stated: "Based upon handwriting analysis of the handwritten envelopes used to mail the November 2011 letters and the February 2012 letter, [O'Donnell] addressed the envelopes and mailed the letters to recipients described herein." Paragraph 46 was added to the third amended complaint and was not included in any of the previous complaints. ¶ 15 On February 12, 2014, plaintiffs disclosed that Todd W. Welch, a forensic document examiner, was their handwriting expert and that he had issued a laboratory report, dated February 10, 2014. This report was dated 10 months after the third amended complaint was filed on April 23, 2013. ¶ 16 On April 23, 2015, plaintiffs moved to voluntarily dismiss their complaint claiming that plaintiff Fitzgerald was terminally ill. The trial court granted plaintiffs' motion to voluntarily dismiss with prejudice and granted O'Donnell leave to renew his Rule 137 motion for sanctions.
¶ 17 III. Discovery Deposition of Todd W. Welch
¶ 18 On January 23, 2015, Todd W. Welch, plaintiffs' handwriting expert, was deposed and he testified that plaintiffs' attorney hired him to analyze handwriting samples of O'Donnell. Welch received three photocopy samples of handwriting and was asked to compare them to defendant O'Donnell's handwriting. Welch opined that defendant O'Donnell "may have" written the samples that Welch received, explaining:
"DEFENDANT'S ATTORNEY: 'May have.' Does that mean that you are identifying him as a likely writer of those-addresser of those envelopes? *** What scale are you using for the opinion?
WELCH: I'm using the generally accepted handwriting opinion scale by SWGDOC, which is the Scientific Working Group for Document Examiners, which is the nine-point opinion scale.
DEFENDANT'S ATTORNEY: Okay. And I'll bet you could do it right off the top of your head, can you tell me what those nine points are?
WELCH: Sure. The opinions starting at the neutral is Inconclusive, going towards the identification side Indications May Have Written, Probably Wrote, Highly Probable Wrote, and Identification. From the neutral point to-towards the elimination side
Indications May Not Have Written, Probably Did Not Write, and Highly Probable Did Not Write, and then Elimination.¶ 19 Welch was not asked whether he was retained prior to the filing of the third amended complaint, and he was not asked whether he had direct contact with Gibbons, as Gibbons averred in his affidavit, discussed below.
DEFENDANT'S ATTORNEY: And so where on the nine-points scale did your opinion fall in the case?
WELCH: Indications May Have Written.
DEFENDANT'S ATTORNEY: Which is one step up from neutral?
WELCH: One level from Inconclusive."
* * *
"DEFENDANT'S ATTORNEY: And if a lawyer -- I dare say that in a your career a lawyer has asked you for your opinion before they have asked you to go the extra yard to write a report, correct?
WELCH: Absolutely.
DEFENDANT'S ATTORNEY: And you will communicate that to them, I suspect, correct?
WELCH: Yes, that's correct."
¶ 20 IV. Affidavit of Timothy P. Gibbons
¶ 21 On June 4, 2015, plaintiffs filed a "Response in Opposition to Motion for Rule 137 Sanctions," to which they attached the affidavit of Timothy P. Gibbons, plaintiff. In paragraph 18, Gibbons avers: "Prior to filing of this lawsuit, [Fitzgerald] and I conducted an extensive investigation into this case prior to the filing of the case. Prior to even contacting an attorney, we gathered the defamatory letter from some of the recipients." ¶ 22 Gibbons averred further in paragraph 22: " [Fitzgerald] and I hired and paid a forensic document examiner to examine the documents who indicated that the documents identified the Defendant as the likely writer of the envelopes."
Welch testified at his deposition that he was retained by plaintiff Garrett Fitzgerald.
¶ 23 V. Motions for Summary Judgment and Sanctions
¶ 24 On February 24, 2015, O'Donnell filed a motion for summary judgment, claiming that plaintiffs lacked definite and conclusive evidence that he addressed the envelopes. Plaintiffs argued that summary judgment was not proper because there was a genuine issue of material fact regarding the handwriting samples and the expert testimony. On April 27, 2015, the trial court denied defendant O'Donnell's motion for summary judgment. ¶ 25 On July 8, 2015, the trial court held a hearing concerning O'Donnell's motion for sanctions, but the appellate record contains neither a transcript nor a bystander's report of the proceedings. The trial court issued a written order granting O'Donnell's motion for sanctions, and on August 5, 2015, he filed a fee petition. On September 28, 2015, the trial court heard arguments concerning O'Donnell's fee petition and found that the allegations set forth in paragraph 46 of the complaint were not "well-grounded in fact or warranted by existing law," (citing Ill. S. Ct. R. 137(a) (eff. July 1, 2013). The appellate record does contain a transcript of this hearing, and the trial court cites to the July 8, 2015, hearing in its written opinion dated September 28, 2015, stating: "Further, the [p]laintiffs made claims during the July 08, 2013 hearing, in the presence of this Court, that the [p]laintiffs had verifiable proof that [O'Donnell] addressed the letter." ¶ 26 The trial court determined that fees were to be calculated from the date of the third amended complaint, and not the date of the first complaint, and that plaintiffs were subjected to sanctions for $43,641.75 in fees and $9,303.50 in costs, totaling $52,602.25. On October 27, 2015, plaintiffs filed a notice of appeal and this appeal followed.
¶ 27 ANALYSIS
¶ 28 On this appeal, plaintiffs make three claims: (1) that the trial court's ordering of sanctions did not follow from the facts presented and was based on suspect or nonexistent reasoning; (2) that the trial court abused its discretion because it was unreasonable to find that plaintiffs' allegations lacked a factual basis; and (3) that it was an abuse of discretion for the trial court to dismiss defendant's motion for summary judgment but grant defendant's motion for sanctions on the same grounds. For the following reasons, we affirm the trial court's order for sanctions against plaintiffs.
¶ 29 I. Standard of Review
¶ 30 Illinois Supreme Court Rule 137 provides:
"(a) Signature requirement/certification. Every pleading, motion and other document of a party represented by an attorney shall be signed by at least one attorney of record in his individual name, whose address shall be stated. A party who is not represented by an attorney shall sign his pleading, motion, or other document and state his address. Except when otherwise specifically provided by rule or statute, pleadings need not be verified or accompanied by affidavit. The signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion or other document; 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. If a pleading, motion, or other document is not signed, it shall be stricken unless it is signed promptly after the omission is called to the attention of the pleader or movant. If a pleading, motion, or other document is signed in violation of this rule, the court, upon motion or upon its own initiative, may impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of reasonable expenses incurred because of the filing of the pleading, motion or other document, including a reasonable attorney fee.¶ 31 In order to avoid sanctions under Rule 137, parties must present objectively reasonable arguments for their position, regardless of whether they are correct in their view of the law. Shea, Rogal & Associates, Ltd. v. Leslie Volkswagen, Inc., 250 Ill. App. 3d 149, 154 (1993). In determining whether sanctions are warranted in a particular case, the court must ascertain what was reasonable at the time, and should not engage in hindsight. Lewy v. Koeckritz International, Inc., 211 Ill. App. 3d 330, 334 (1991). The determination of whether to impose sanctions under Supreme Court Rule 137 rests with the sound discretion of the trial court; the decision to impose or deny sanctions is entitled to great weight on appeal and will not be disturbed on review absent an abuse of discretion. Dowd & Dowd, Ltd. v. Gleason, 181 Ill. 2d 460, 487 (1998). "A circuit court exceeds its discretion only where no reasonable person would take the view adopted by it." Spiegel v. Hollywood Towers Condominium Ass'n, 283 Ill. App. 3d 992, 1001 (1996) (citing Lewy, 211 Ill. App. 3d at 334-35). " 'When reviewing a decision on a motion for sanctions, the primary consideration is whether the trial court's decision was informed, based on valid reasoning, and follows logically from the facts.' " Sterdjevich v. RMK Management Corp., 343 Ill. App. 3d 1, 19 (2003) (quoting Technology Innovation Center, Inc. v. Advanced Multiuser Technologies Corp., 315 Ill. App. 3d 238, 244 (2000)). In addition, this court may affirm the trial court on any basis found in the record. In re Marriage of O'Malley, 2016 IL App (1st) 151118, ¶ 56 (citing People v. Johnson, 237 Ill. 2d 81, 89 (2010)).
***
(d) Required Written Explanation of Imposition of Sanctions. Where a sanction is imposed under this rule, the judge shall set forth with specificity the reasons and basis of any sanction so imposed either in the judgment order itself or in a separate written order."
¶ 32 II. Objective Standard of Reasonableness
¶ 33 Plaintiffs claim that it was unreasonable for the trial court to find that plaintiffs lacked a factual basis in paragraph 46 of their third amended complaint. Plaintiffs argue that the primary consideration of the reviewing court is "whether the trial court's decision was informed, based on valid reasoning, and follows logically from the facts. [Citations.]" Kensington's Wine Auctioneers & Brokers, Inc. v. John Hart Fine Wine, Ltd., 392 Ill. App. 3d 1, 15 (2009) (internal quotation marks omitted). For the following reasons, we find that the trial court did not abuse its discretion in ordering sanctions against plaintiffs because the record confirms that the allegations set forth in paragraph 46 of plaintiffs' third amended complaint were not grounded in fact. ¶ 34 Supreme Court Rule 137(a) states, in relevant part, that: "The signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion, or other document; 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." Ill. S. Ct. R. 137(a) (eff. July 1, 2013). ¶ 35 Plaintiffs argue that they had extensively investigated who mailed the letters before they filed their complaints, and thus met the burden that their claims must be "grounded in fact" and "existing law." Ill. S. Ct. R. 137(a) (eff. July 1, 2013). Plaintiffs further cite an affidavit filed by plaintiff Gibbons in which he averred that "[p]rior to the filing of the lawsuit, [plaintiff Fitzgerald] and I conducted an extensive investigation into this case." However, the standard for filings is not a party's honest belief that his allegations are correct; but rather, a filing party must meet an objective standard of reasonableness for his claims. Baker v. Daniel S. Berger, Ltd., 323 Ill. App. 3d 956, 963 (1st Dist. 2001). ¶ 36 Although Gibbons averred in his affidavit that "I obtained a copy of an e-mail from Lisa Hwang essentially admitting the conduct and stating the defamatory statements were all true," he failed to attach the email to the complaint or his affidavit. He did attach an anonymous letter that Helm and Steve Bilski had previously sent to the third-amended complaint as Exhibit 3. Further, Gibbons averred that the expert identified defendant "the likely writer of the envelopes," which were printed by hand. From that information, the expert testified at his deposition that he found "indications that Mr. O'Donnell may have written the questioned writing on the envelopes." If Gibbons had contacted the expert before the report of his findings were prepared and was confused about what the expert told him, his attorney had every opportunity to bring out that information during the expert's deposition. Notwithstanding, the expert was never asked whether he gave Gibbons or anyone else any information prior to the receipt of his written report. As a result, we cannot say that paragraph 46 of the third-amended complaint was well-grounded in fact and we cannot say that no reasonable person would take the view adopted by the trial court in entering sanctions. ¶ 37 In the case at bar, plaintiffs amended their complaint three times, and the final amended complaint was the fourth complaint filed. The trial court dismissed all previous complaints and all claims in the third amended complaint except for the claim in paragraph 46 because it affirmatively alleged that O'Donnell addressed the envelopes containing the defamatory letters. Paragraph 46 of the third amended complaint reads: "Based upon handwriting analysis of the handwritten envelopes used to mail the November 2011 letters and the February 2012 letter, [O'Donnell] addressed the envelopes and mailed the letters to recipients described herein." ¶ 38 Welch's handwriting analysis report was dated 10 months after the filing of the third amended complaint. Therefore, plaintiffs made their statement in paragraph 46 about "handwriting analysis" before they had possession of the report. Second, plaintiffs' handwriting expert testified that O'Donnell "may have" addressed the envelopes. On a nine-point scale, "may have" is only one step up from "inconclusive." The scale includes: (1) may have written; (2) probably written; (3) high probability wrote; and (4) identification. Not only was there no "identification," but the expert's conclusion was a full three levels away from an identification. The expert did not opine to any degree of certainty that defendant O'Donnell addressed the envelopes. ¶ 39 If it were not for paragraph 46 in the third amended complaint, the complaint would have been dismissed in its entirety. In other words, the action at bar has survived only because plaintiffs allege in paragraph 46 that they had a "handwriting analysis" which established that O'Donnell had addressed the envelopes. Thus, we cannot find that the trial court abused its discretion when it ordered sanctions under Supreme Court Rule 137 against plaintiffs because we cannot find that the allegations in paragraph 46 were grounded in fact or in existing law.
¶ 40 III. Improper Use
¶ 41 Next, plaintiffs argue that the trial court abused its discretion by ordering sanctions based on an improper purpose. Specifically, plaintiffs argue that, when a trial court orders sanctions based on an improper purpose, it must first hold an evidentiary hearing to establish an improper purpose, as required by Century Road Builders v. City of Palos Heights, 283 Ill. App. 3d 527, 531 (1996). ¶ 42 Supreme Court Rule 137(a) states, in relevant part, that: "The signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion or other document; *** 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." Ill. S. Ct. R. 137(a) (eff. July 1, 2013). ¶ 43 In Century Builders, the trial court ordered sanctions against the plaintiffs for making harassing allegations in their initial complaint. Century Builders, 238 Ill. App. 3d at 530. The trial court did not hold a evidentiary hearing before ordering sanctions, and this court reversed the order for sanctions and remanded because an "evidentiary hearing should always be held when a sanction award is based upon a pleading filed for an improper purpose, rather than one which is merely unreasonable based on an objective standard." Century Builders, 283 Ill. App. 3d at 531. ¶ 44 In the case at bar, the trial court cited the July 8, 2015, hearing in its written opinion dated on September 28, 2015, but the appellate record does not contain a transcript or bystander's report for the July 8, 2015, hearing. The supreme court in Foutch held that "an appellant has the burden to present a sufficiently complete record of the proceedings at trial to support a claim of error, and in the absence of such a record on appeal, it will be presumed that the order entered by the trial court was in conformity with law and had a sufficient factual basis." Foutch, 99 Ill. 2d at 391-92. In the absence of a transcript or bystander's report, we must presume that the trial court's order was founded on a proper basis and that an evidentiary hearing occurred. ¶ 45 Further, plaintiffs argue that the trial court based its order for sanctions on an improper purpose because the trial court reasoned:
"the [p]laintiffs made claims during the July 08, 2013 hearing, in the presence of this Court, that the [p]laintiffs had verifiable proof that [defendant O'Donnell] addressed the letter. This Court finds a sufficient factual basis that Plaintiffs' actions were politically motivated, based solely on speculation, and an attempt to harm the Defendants without a reasonable belief based on direct or circumstantial evidence that [defendant O'Donnell] addressed the envelopes and/or wrote the defamatory letters."¶ 46 Again, plaintiffs have provided neither a transcript nor a bystander's report for the July 8, 2015, sanctions hearing, and thus make this claim without any factual support or legal argument. We may affirm on this basis alone. Foutch, 99 Ill.2d at 391-92. We therefore presume that the trial court's order properly conformed with the law and had a sufficient factual basis.
This court has repeatedly held that a party waives a point by failing to argue it. Rosier v. Cascade Mountain, Inc., 367 Ill. App. 3d 559, 568 (2006) (by failing to offer supporting legal authority or "any reasoned argument," plaintiffs waived consideration of their theory for asserting personal jurisdiction over defendants); People v. Ward, 215 Ill. 2d 317, 332 (2005) ("point raised in a brief but not supported by citation to relevant authority *** is therefore forfeited"); In re Marriage of Bates, 212 Ill. 2d 489, 517 (2004) ("A reviewing court is entitled to have issues clearly defined with relevant authority cited"); Ferguson v. Bill Berger, Associates, Inc., 302 Ill. App. 3d 61, 78 (1998) ("it is not necessary to decide this question since the defendant has waived the issue" by failing to offer case citation or other support as Supreme Court Rule 341 requires); Ill. S. Ct. R. 341(h)(7) (eff. Feb. 6, 2013) (argument in appellate brief must be supported by citation to legal authority and factual record). --------
¶ 47 IV. Summary Judgment
¶ 48 Finally, plaintiffs argue that it is evident that the trial court abused its discretion because it denied defendant O'Donnell's motion for summary judgment on the same ground on which it granted defendant O'Donnell's motion for sanctions. ¶ 49 The standards for summary judgment and for sanctions are different. "Summary judgment is a drastic measure and should only be granted if the movant's right to judgment is clear and free from doubt." Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 102 (1992). "Mere speculation, conjecture, or guess is insufficient to withstand summary judgment." Sorce v. Naperville Jeep Eagle, Inc., 309 Ill. App. 3d 313, 328 (1999). A defendant moving for summary judgment bears the burden of proof. Nedzvekas v. Fung, 374 Ill. App. 3d 618, 624 (2007). The defendant may meet its burden of proof either by affirmatively showing that some element of the case must be resolved in its favor, or by establishing " 'that there is an absence of evidence to support the nonmoving party's case.' " Nedzvekas, 374 Ill. App. 3d at 624 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). The issue of whether there was a proper denial of summary judgment is not before us in this appeal. ¶ 50 Further, a "Rule 137 motion concerns the allegations contained on the face of a complaint or other pleading, while a summary judgment motion is the procedural equivalent of a trial and constitutes an adjudication of the claim on the merits." Peterson v. Randhava, 313 Ill. App. 3d 1, 9-10 (2000). ¶ 51 On April 27, 2015, in the case at bar, the trial court entered an order denying O'Donnell's summary judgment motion and granting plaintiffs' motion for voluntary dismissal in the same order. Further, the trial court denied the motion for summary judgment before it conducted the sanctions hearing on July 8, 2015. Because the standards for summary judgment and motions for sanctions are different, we cannot say that it is an abuse of discretion for the court to have denied one motion and subsequently granted the other after a later hearing.
¶ 52 CONCLUSION
¶ 53 For the aforementioned reasons, we affirm the trial court's order for sanctions against plaintiffs. ¶ 54 Affirmed.