Kellett v. Roberts

• Decision Date: 29 November 1995
• Docket Number: No. 2-95-0442,2-95-0442
• Citation: 658 N.E.2d 496,276 Ill.App.3d 164
• Parties: , 213 Ill.Dec. 26 Andrea E. KELLETT, Plaintiff-Appellee, v. Michelle ROBERTS, Defendant and Third-Party Plaintiff (Laurie Byrne, Third-Party Defendant; Parrillo, Weiss and O'Halloran, Appellant).
• Court: United States Appellate Court of Illinois

Page 496

658 N.E.2d 496

276 Ill.App.3d 164, 213 Ill.Dec. 26

Andrea E. KELLETT, Plaintiff-Appellee, v. Michelle ROBERTS, Defendant and Third-Party Plaintiff (Laurie Byrne, Third-Party Defendant; Parrillo Weiss and O'Halloran, Appellant).

No. 2-95-0442.

Appellate Court of Illinois,

Second District.

Nov. 29, 1995.

Rehearing Denied Jan. 4, 1996.

Keely Truax, Parrillo, Weiss & O'Halloran, Chicago, for Parrillo, Weiss & O'Halloran, Michelle Roberts.

John J. Pcolinski, Jr., Guerard, Kalina & Butkus, Wheaton, for Andrea Kellett.

Presiding Justice McLAREN delivered the opinion of the court:

Parrillo, Weiss and O'Halloran (Parrillo, Weiss) appeals sanctions imposed pursuant to Supreme Court Rule 137 (155 Ill.2d R. 137) for filing a frivolous third-party complaint and a frivolous motion to reconsider the sanction order and sanctions imposed pursuant to Rule 219(c) (134 Ill.2d R. 219(c)) for refusing to answer discovery. We affirm.

The cause arose from an automobile accident in which plaintiff, Andrea Kellett, was injured. Parrillo, Weiss represented defendant, Michelle Roberts. Kellett was a passenger in Laurie Byrne's vehicle. Defendant's vehicle struck the rear of Byrne's vehicle. According to the accident report, defendant stated that she was in the curb lane when she saw Byrne's vehicle come to a stop in front of her. Defendant tried to stop, but hit Byrne's vehicle, causing it to strike the vehicle in front of Byrne's. The report further stated that Byrne indicated that her vehicle was stopped in traffic when it was hit by defendant's vehicle, causing Byrne's vehicle to strike the vehicle in front of her.

On September 20, 1994, defendant, through Parrillo, Weiss, filed a third-party complaint for contribution against Byrne. The third-party complaint alleged, in relevant part, that Byrne was negligent in that she: "(a) Moved at an unreasonable speed; (b) Failed to keep a proper lookout; (c) Failed to give a proper warning to any vehicle(s) involved in this alleged incident; (d) Occupied and/or operated an improperly equipped vehicle; [and] (e) Disobeyed traffic signals, signs or ordinances." The identity of the attorney who signed the pleading is unclear.

On October 21, 1994, defendant was deposed. She testified that the accident occurred when she was sitting at the red light in a heavy rain. The light turned green, and the vehicles ahead of her started to go, and then they stopped. Defendant pushed in the clutch and hit the brake, but she hit the bumper of the car in front of hers. Before the impact, defendant saw the brake lights of Byrne's car go on. Byrne's car had moved about three feet before it stopped, and it moved at a "normal" speed, about two to five miles per hour. Defendant was unable to see the vehicle in front of Byrne's car, and she did not know whether Byrne's vehicle came to a stop before or after Byrne hit the truck ahead of her. Defendant was unaware of any traffic control device or ordinance that Byrne did not observe. She also was unaware of the condition of Byrne's vehicle, although she knew that the taillights were operational. Defendant did not know where Byrne was looking prior to the accident.

When asked whether she had given any statements about the accident, defendant responded that she filled out a report for her insurance company. Defendant admitted that she had never seen the third-party complaint before the deposition. She also did not know whether Parrillo, Weiss was representing her. Defense counsel instructed defendant not to answer questions regarding what she told the insurance company about the accident and every fact which led her to believe that Byrne's vehicle was moving at an unreasonable speed, was improperly equipped, and that Byrne kept an improper lookout.

On November 3, 1994, defendant filed her answers to plaintiff's interrogatories. Defendant objected to the question asking for the factual basis for the allegations of the third-party complaint on the basis that it was overly broad, vague, and called for narrative and a legal conclusion. Defendant also objected to the question requesting the identity of every witness or person consulted in connection with the allegations of the third-party complaint.

Plaintiff then filed a motion for sanctions pursuant to both Supreme Court Rules 137 and 219(c), arguing that Parrillo, Weiss did not consult with defendant about the allegations of the third-party complaint and that no factual investigation was undertaken by counsel before the preparation and filing of the third-party complaint. Plaintiff further argued that the third-party complaint was filed merely for delay and harassment. She further asserted that defense counsel instructed defendant to refrain from answering questions in an attempt to obstruct plaintiff's investigation. She requested that the court sanction the law firm and the individual attorney who signed the third-party complaint. She also requested that the court enter judgment in her favor for defendant's refusal to comply with discovery. Plaintiff sought attorney fees for work on the preparation of the sanctions motion and for the prove-up of attorney fees and the completion of discovery.

In response to the sanctions motion, defendant moved to strike the motion and to disqualify plaintiff's counsel. The motion failed to respond to the substantive allegations of the sanctions motion other than to argue that plaintiff's counsel sought privileged matters. From this point in the proceedings, defendant was represented by Parrillo, Weiss attorney Shauna Reitz.

Plaintiff filed a reply and affidavits of witnesses which stated that defense counsel did not interview them. Plaintiff also filed the affidavit of her attorney and a summary of his fees incurred. In defendant's reply to the response, defendant asserted that the motion for sanctions was premature and that the attorney fees requested were "inordinately high and contain[ed] irrecoverable materials."

The parties appeared on January 20, 1995, to argue the motion. However, there is no transcript from that hearing in the record. The matter was continued to January 23 for the court to issue its ruling. On January 23 there was no court reporter present at the hearing. According to the bystander's report, defense counsel was not present. The court stated that it considered the briefs and the arguments of counsel and that it adopted the plaintiff's position.

The court specifically found that the third-party complaint filed by Parrillo, Weiss was "without basis in fact in that the testimony of Defendant * * * admitted that Laurie Byrne did not commit any of the negligent acts alleged in the Third Party Complaint." The court further found that: defense counsel "did not conduct a reasonable inquiry into the facts of the accident prior to the filing of the third party complaint on the basis of their [sic ] failure to offer any evidence of inquiry or explain said failure"; Parrillo, Weiss "was given ample opportunity to request an evidentiary hearing or present evidence and waived the same"; the attorney fees and other costs requested in the amended affidavit were reasonable and customary; and the refusal to answer discovery and the instruction to defendant not to answer the deposition questions were unreasonable and therefore sanctionable. The court also determined that the motion for sanctions was not premature. The court therefore awarded sanctions of $7,384.55. The written order awarding sanctions failed to specifically set forth the factual findings which were the basis for the sanctions.

On January 26, 1995, defendant caused summons to be issued to Byrne on the third-party complaint. Thereafter, defendant and Parrillo, Weiss moved for reconsideration of the sanction order. The motion asserted that during oral arguments on the motion for sanctions the court declined defense counsel's offer of an in camera inspection of the materials related to the communications which Parrillo, Weiss claimed were privileged. Since the hearing, Parrillo, Weiss had obtained a limited waiver of the privilege, and it attached the document defendant signed which was forwarded to the insurance company and then to Parrillo, Weiss. It also attached the affidavit of attorney Margaret Man, who represented defendant at the discovery deposition. The motion argued that these communications established that a "reasonable inquiry occurred" before the third-party complaint was filed. The motion further argued that the defense of a "sudden stop" was reasonable and that the court's order of January 23, 1995, was insufficient in form and substance.

According to the insurance form, defendant reported to the insurance company that she was sitting at the light waiting for it to change. When the light turned green, the car in front of hers started to go and quickly stopped. Defendant "did the same," but slid into the other car. Defendant's speed was under five miles per hour. Margaret Man's affidavit stated that she represented defendant on October 21, 1994, at the deposition. Ms. Man met with defendant "before the deposition and * * * had [a] detailed discussion about the facts of the accident." The affidavit set out essentially what defendant testified to in her deposition.

Plaintiff responded that the motion to reconsider did not contain newly discovered evidence. In addition, plaintiff argued that the "new" evidence would not change the result. Plaintiff asserted that the motion to reconsider was a sanctionable pleading. Plaintiff noted that attorney Man's affidavit had nothing to do with the inquiry Parrillo, Weiss conducted before the third-party complaint was filed. Finally, plaintiff requested additional sanctions for time incurred on January 23 and for work on the motion to reconsider. Plaintiff submitted a supplemental affidavit for fees, requesting an additional $2,625.

At the first hearing on the motion to reconsider, attorney Reitz stipulated that the...