McCarthy v. Taylor

• Decision Date: 20 June 2019
• Docket Number: Docket No. 123622
• Citation: 155 N.E.3d 359,440 Ill.Dec. 589,2019 IL 123622
• Parties: Gerald S. MCCARTHY, Appellee, v. Rozlyn TAYLOR et al. (Marvin Gray, Appellant).
• Court: Illinois Supreme Court

2019 IL 123622
155 N.E.3d 359
440 Ill.Dec. 589

Gerald S. MCCARTHY, Appellee,
v.
Rozlyn TAYLOR et al. (Marvin Gray, Appellant).

Docket No. 123622

Supreme Court of Illinois.

Opinion filed June 20, 2019
Modified upon denial of rehearing October 1, 2019

JUSTICE KILBRIDE delivered the judgment of the court, with opinion.

440 Ill.Dec. 590

¶ 1 In this appeal, we address, as a matter of first impression, whether a court may impose sanctions in the form of attorney fees under Illinois Supreme Court Rule 137(a) (eff. July 1, 2013) against a plaintiff to compensate an attorney defending himself against a frivolous cause of action. Here, plaintiff and defendant are both experienced licensed attorneys who proceeded pro se in the action below.

¶ 2 Plaintiff, Gerald S. McCarthy, filed a complaint against defendant, Marvin Gray. Plaintiff's complaint was dismissed, and the Cook County circuit court entered an order imposing Rule 137 sanctions against him, in favor of defendant. Plaintiff appealed, arguing that the circuit court erred in dismissing his tortious interference claim and issuing Rule 137 sanctions. The appellate court affirmed the dismissal of plaintiff's tortious interference claim and the finding that plaintiff violated Rule 137 in filing that frivolous claim, but it reversed the circuit court's finding that defendant was entitled to attorney fees and vacated that award. McCarthy v. Abraham Lincoln Reynolds, III, 2006 Declaration of Living Trust , 2018 IL App (1st) 162478, 423 Ill.Dec. 186, 104 N.E.3d 1275.¹ We reverse that part of the appellate court judgment vacating defendant's attorney fee award and remand for further proceedings consistent with this opinion. The remainder of the appellate court's judgment is affirmed.

¶ 3 BACKGROUND

¶ 4 In 2006, Abraham Lincoln Reynolds III created and executed the "A. L. Reynolds III 2006 Declaration of Living Trust," naming himself as the trustee. Cherie Coles, the romantic interest of Reynolds, was named as successor trustee. Plaintiff was appointed as the second successor trustee. The trust granted 10% of the residuary estate to plaintiff, 80% to Coles, and 10% to Elaine Lawell. If Coles predeceased Reynolds, however, her 80% share would go to plaintiff, and plaintiff's 10% share "shall [be] extinguished and be given to Reverend Wayne Reynolds, Senior." The schedule of property attached to the trust document included bank accounts, savings bonds, a "1996 Mercury Grand Marquee [sic ]" automobile, personal and household items, and a condominium apartment located in Chicago. Defendant was Reynolds's attorney who prepared the trust document.

¶ 5 Coles passed away in 2007. In 2010, Reynolds executed an amendment to the trust clarifying and augmenting the power

155 N.E.3d 361

440 Ill.Dec. 591

of the trust to include the powers to borrow money on behalf of the trust and to pledge and encumber property of the trust. The amendment further provided that "the real property owned by [the trust] is encumbered or conveyed by [Reynolds] to secure payment" for a "Home Equity Conversion Mortgage" through Wells Fargo Bank.

¶ 6 Reynolds committed suicide on December 15, 2012. Defendant contacted plaintiff after Reynolds's death and notified him that Reynolds had amended the trust before his death. Defendant informed plaintiff that Reynolds came to defendant's home prior to his suicide and presented defendant with an amended trust document he "had made in his own handwriting." The amendments named Rozlyn Taylor as successor trustee. Reynolds and Taylor had become intimately involved after Coles's death. The amendments granted 20% of the residuary estate to plaintiff, 70% to Taylor, and 10% to Devon Morris. The schedule of property was amended to delete certain bank accounts and savings bonds as "gone" and added new bank and individual retirement accounts. The schedule of property also substituted a 1998 Oldsmobile for the 1996 Mercury.²

¶ 7 Plaintiff filed a pro se complaint in 2013, in another action that is not the subject of this appeal, alleging that Reynolds's amendment to the trust was invalid. Defendant testified as a witness at the trial. The circuit court ruled against plaintiff, finding that Reynolds's handwritten amendment to the trust naming Taylor as the successor trustee was valid. The appellate court affirmed. McCarthy v. Taylor , 2014 IL App (1st) 132239, 384 Ill.Dec. 825, 17 N.E.3d 807. On September 26, 2014, plaintiff filed a petition for leave to appeal with this court. We denied leave to appeal. McCarthy v. Taylor , No. 118293, 386 Ill.Dec. 795, 21 N.E.3d 714 (Nov. 26, 2014).

¶ 8 On June 9, 2014, plaintiff filed a pro se five-count complaint, the subject of this appeal, against Taylor, in her capacity as trustee and individually, and defendant. In relevant part, plaintiff presented two counts against defendant: (1) alleging defendant breached his fiduciary duty to plaintiff as a beneficiary of the trust and (2) alleging defendant tortiously interfered with plaintiff's share of the trust by making false statements and presenting misleading evidence against him in the 2013 case. In response, defendant filed a combined motion to dismiss pursuant to section 2-619.1 of the Code of Civil Procedure (Code) ( 735 ILCS 5/2-619.1 (West 2012) ).

¶ 9 On February 27, 2015, the circuit court dismissed plaintiff's tortious interference claim with prejudice pursuant to section 2-619(a)(4) of the Code ( 735 ILCS 5/2-619(a)(4) (West 2012)) based on the doctrine of res judicata , because plaintiff's action essentially asked the circuit court to relitigate the issues determined in the 2013 case, namely, the veracity of the handwritten trust amendment. The court also dismissed plaintiff's breach of fiduciary duty claim but on the basis of his failure to present a sufficient claim pursuant to section 2-615 of the Code ( 735 ILCS 5/2-615 (West 2012) ). Plaintiff was granted leave to amend his complaint on the breach of fiduciary duty claim.

¶ 10 On March 27, 2015, plaintiff filed an amended complaint containing one count against defendant for breach of fiduciary duty. Plaintiff alleged defendant had a duty to act with due care in providing

155 N.E.3d 362

440 Ill.Dec. 592

plaintiff with services related to the trust. On August 25, 2015, the circuit court again dismissed plaintiff's claim against defendant, stating:

"McCarthy has not alleged any facts which would establish that Gray owed him a fiduciary duty. McCarthy has cited no legal authority for the proposition that a trust attorney owes a fiduciary duty to the trust's beneficiaries as a matter of law. Since McCarthy and Gray were not otherwise in privity, McCarthy would need to allege facts which would show his eligibility for an exception to the rule. However, McCarthy has failed to allege facts to support that any contract was entered into for his benefit, or the benefit of all the beneficiaries. Since McCarthy has failed to make any more than a bare-bones assertion that a fiduciary duty exists, he has not alleged the essential elements of his cause of action."

¶ 11 Defendant then filed a motion seeking sanctions under Illinois Supreme Court Rule 137 (eff. July 1, 2013), including an award for attorney fees and an award for costs, against plaintiff. In support of his request for sanctions, defendant alleged that plaintiff made false statements in his complaint and that he and plaintiff did not have an attorney-client relationship. Defendant requested sanctions in the amount of $11,232.55 as a result of having to defend against "plaintiff's unfounded, fallacious and specious allegations and pleadings." Defendant later amended the sanction expense to $12,106.03 for the time expended in defending against the case as of November 13, 2015.

¶ 12 The circuit court entered an order granting in part and denying in part defendant's motion for Rule 137 sanctions. The court found that plaintiff's cause of action against defendant for tortious interference was frivolous and, therefore, subject to Rule 137 sanctions. The court concluded, however, that sanctions were not appropriate for the breach of fiduciary duty claim. The circuit court later entered a corrected order clarifying that it found Rule 137 sanctions were warranted only for the tortious interference claim. The court entered a sanction award in defendant's favor for $9907.98, including $102.28 in costs for parking and postage fees.

¶ 13 Plaintiff appealed, contending that the circuit court erred in dismissing his tortious interference claim based on res judicata and issuing Rule 137 sanctions. Plaintiff also contended that the circuit court erred in awarding fees as a sanction against him in favor of defendant.

¶ 14 The appellate court affirmed the dismissal of plaintiff's tortious interference claim and its finding that plaintiff violated Rule 137 in filing that frivolous claim. However, the appellate court reversed the circuit court's finding that defendant was entitled to attorney fees and vacated that award on the basis that a pro se attorney is not entitled to receive attorney fees. 2018 IL App (1st) 162478, 423 Ill.Dec. 186, 104 N.E.3d 1275. We allowed defendant's petition for leave to appeal. Ill. S. Ct. R. 315 (eff. Apr. 1...