Garris v. Schwartz

• Decision Date: 14 March 1977
• Docket Number: No. 76-1643,76-1643
• Parties: Marilyn I. GARRIS, Plaintiff-Appellant, v. G. R. SCHWARTZ and John S. Self, partners, d/b/a Schwartz and Self, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 156

551 F.2d 156

Marilyn I. GARRIS, Plaintiff-Appellant, v. G. R. SCHWARTZ and John S. Self, partners, d/b/a Schwartz and Self, Defendants-Appellees.

No. 76-1643.

United States Court of Appeals, Seventh Circuit.

Argued Nov. 29, 1976.

Decided March 14, 1977.

Arlie E. Traughber, Crowder & Associates, Ltd., Columbia, Ill., for plaintiff-appellant.

Stephen W. Thomson, Edwardsville, Ill., for defendants-appellees.

Before CASTLE, Senior Circuit Judge, and PELL and SPRECHER, Circuit Judges.

CASTLE, Senior Circuit Judge.

Plaintiff appeals from the district court's order dismissing her complaint, which invokes the court's diversity jurisdiction, on the ground that the amount in controversy did not exceed $10,000, exclusive of interest and costs. 28 U.S.C. § 1332(a). The complaint alleges that the defendants, Illinois attorneys, advised plaintiff and her family to have the revoked will of plaintiff's deceased father offered for probate and thereafter caused the will to be admitted to probate as attorneys of the named executors under the will. According to the complaint, plaintiff subsequently petitioned an Illinois court to have the will set aside and the court did so.

The complaint sets forth two counts, the first alleging that the defendants' conduct was "intentionally erroneous" and the second alleging that it was negligent. Under the first count, plaintiff sought as damages the amount of $1,500 for travel and lodging expenses and other inconveniences suffered as a result of defendants' conduct, the amount of $10,500 for fees charged by attorneys whom she employed for the protection of her interest in the estate, and the amount of $30,000 for mental anguish and anxiety suffered in the destruction of peaceful and harmonious relations with other members of the decedent's family. The second count, which repeated most of the allegations of the first count, alleged in addition that the defendants had negligently failed to have certain personal property held by the plaintiff and the decedent in joint tenancy and a $11,000 deposit payable to the plaintiff on decedent's death transferred to the plaintiff. The damages claimed in the second count were the same as those claimed in the first, except that the amount sought for attorneys' fees totalled $11,500, the sum allegedly charged for the protection both of her interests in the estate and of the additional property rights.

The district court held that, under Illinois law, plaintiff was not entitled to recover damages for emotional distress or for the cost of attorneys' fees under the circumstances alleged in the complaint and that the complaint therefore did not place an amount exceeding $10,000 in controversy. We affirm.

Plaintiff contends that damages for mental anguish are recoverable under the complaint because it states a claim under the theory of "intentional infliction of emotional distress," a tort recognized by the Illinois Supreme Court in Knierim v. Izzo, 22 Ill.2d 73, 174 N.E.2d 157 (1961). We disagree. The tort is limited to conduct that is "calculated to cause severe emotional distress in the person of ordinary sensibilities. . . ." Id. at 86, 174 N.E.2d at 165. Although plaintiff alleges that the defendants' advice to probate the revoked will was "intentionally erroneous," there is nothing in the complaint to suggest that it was "intended to cause emotional disturbance" in the plaintiff. Id. at 85-86, 174 N.E.2d at 164. This element of the tort was present in the complaints found sufficient in Knierim and in Bureau of Credit Control v. Scott, 36 Ill.App.3d 1006, 345 N.E.2d 37 (1976), also relied on by the plaintiff. Because the plaintiff does not state or imply such a purpose on the part of the defendants, her claim for damages for mental suffering must fail. See Braun v. Craven, 175 Ill. 401, 51 N.E. 657 (1898).

The district court denied recovery of the claimed attorneys' fees under the Illinois rule that attorneys' fees and expenses of litigation are not allowable to a successful party in the absence of statute. Ritter v. Ritter, 381 Ill. 549, 46 N.E.2d 41 (1943). Plaintiff asserts that this rule is limited to cases in which the fees claimed were incurred in litigation against the defendant and does not apply to cases in which they were incurred in litigation, caused by the defendant, between the plaintiff and a third party. While we recognize that this distinction finds some support in the statements of the Ritter court, recent decisions of the Illinois Appellate Court have extended the rule generally to exclude recovery of attorneys' fees and expenses incurred in litigation with third parties as an element of damages in actions to enforce common law duties. In Insurance Co. of North America v. J. L. Hubbard Co., 23 Ill.App.3d 254, 318 N.E.2d 289 (1974), the Fourth District denied an insurance company recovery of attorneys' fees, which it had incurred in defense of an insured's action, in the company's indemnity action against its insurance agent. In Reese v. Chicago, Burlington & Quincy R.R., 5 Ill.App.3d 450, 283 N.E.2d 517 (1972), aff'd, 55 Ill.2d 356, 303 N.E.2d 382 (1973), the Second District denied a railroad recovery of attorneys' fees incurred in negotiating a settlement with the estate of its deceased employee, killed when he was struck by the bucket of a crane, in the railroad's indemnity action against the manufacturer of the crane. In Kniznik v. Quick, 130 Ill.App.2d 273, 264 N.E.2d 707 (1970), the First District denied a divorced husband recovery of attorneys' fees, which he had incurred in divorce and child custody proceedings against his wife, in his action for alienation of affections against the defendant.

The courts in Insurance Co. of North America and Kniznik expressly considered the Ritter dicta and the early line of cases that plaintiff relies on. In each of the early cases, a defendant, falsely pretending to be the plaintiff's real estate agent, had made a contract for the sale of the plaintiff's real property to a third party and had caused the contract to be recorded. In each case, the plaintiff was allowed to recover the costs of protecting his property interest in subsequent litigation. See Philpot v. Taylor, 75 Ill. 309 (1874); McEwen v. Kerfoot, 37 Ill. 530 (1865); Himes v. Keighblingher, 14 Ill. 469 (1853). The Insurance Co. of North America and Kniznik courts declared that these cases should be viewed as an exception to the general rule that attorneys' fees and ordinary expenses are not recoverable and should be limited to their facts. Specifically, the court in Insurance Co. of North America said the exception was limited to cases in which a defendant had willfully placed the plaintiff's real property in legal jeopardy to the claims of a third party. Insurance Co. of North America v. J. L. Hubbard Co., supra, 23 Ill.App.3d at 262, 318 N.E.2d at 295.

In ascertaining substantive state law in a diversity case, we must accord proper regard to the decisions of intermediate state courts. As the Supreme Court has stated:

Where an intermediate appellate state court rests its considered judgment upon the rule of law which it announces, that is a datum for ascertaining state law which is not to be disregarded by a federal court unless it is convinced by other persuasive data that the highest court of the state would decide otherwise.

West v. American Telephone & Telegraph Co., 311 U.S. 223, 237, 61 S.Ct. 179, 183, 85 L.Ed. 139 (1940). We are not convinced that the Illinois Supreme Court would reject the rule of law as announced and applied by the appellate court. It may adopt that rule to exclude as a means of enforcing common law duties recovery of a cost which, like delay, is incidental to the assertion of private rights by judicial process, except in specified circumstances where such recovery is deemed necessary to enforce a particular duty.

Plaintiff's reliance on Freed v. Travelers, 300 F.2d 395 (7th Cir. 1962), is misplaced. In that case, we permitted recovery of attorneys' fees and expenses, which had been incurred by the plaintiff in defense of three personal injury actions, in the plaintiff's suit against an insurance company that was contractually obligated to defend him in the actions. The insurance company's obligation to reimburse the plaintiff did not arise out of a common law duty such as the one asserted by the plaintiff in the instant case but instead out of a duty that it assumed under contract.

We therefore conclude that, as a general rule under Illinois law, attorneys' fees and expenses are not recoverable as an element of damages in a suit brought to enforce a common law duty and that the plaintiff's complaint does not fit any recognized exception to that rule.

For the reasons stated above, the judgment of the district court is affirmed.

AFFIRMED.

PELL, Circuit Judge, dissenting.

In this diversity case to be decided, under the principles of Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), by reference to Illinois law, where that law as pertinent is less than clear, my brothers have concluded appellant's complaint fails to allege the requisite jurisdictional amount of damages. Despite the thoughtfulness and thoroughness of their analysis, I disagree. Because of this, and because I believe an actionable breach of duty under Illinois law is alleged to have caused these damages, I would reverse and remand the case for further proceedings.

I

I quite agree with the majority that an independent emotional distress infliction theory that would activate, for jurisdictional purposes, the alleged $30,000 in emotional damages is entirely inapposite to these facts, and that jurisdiction must stand or fall on the viability, as recoverable damages in Illinois, of the attorneys' fees appellant incurred in the litigation with third parties that appellees' breach of duty is alleged to have caused. The Erie inquiry in diversity cases requires federal courts to determine...