Mid-America Fire and Marine Ins. Co. v. Middleton

• Decision Date: 05 September 1984
• Docket Number: MID-AMERICA,No. 4-84-0140,4-84-0140
• Citation: 468 N.E.2d 1335,127 Ill.App.3d 887,82 Ill.Dec. 555
• Court: United States Appellate Court of Illinois
• Parties: , 82 Ill.Dec. 555 FIRE AND MARINE INSURANCE COMPANY, a Corporation, Plaintiff- Appellee, v. H. Frank MIDDLETON and Nolan C. Craver, Jr., d/b/a Middleton & Craver, Defendants-Appellants.

Page 1335

468 N.E.2d 1335

127 Ill.App.3d 887, 82 Ill.Dec. 555

MID-AMERICA FIRE AND MARINE INSURANCE COMPANY, a Corporation, Plaintiff- Appellee, v. H. Frank MIDDLETON and Nolan C. Craver, Jr., d/b/a Middleton & Craver, Defendants-Appellants.

No. 4-84-0140.

Appellate Court of Illinois Fourth District.

Sept. 5, 1984.

James L. Ayers, Kenneth E. Baughman, Monticello, for defendants-appellants.

Mark T. Petty, Arcola, for plaintiff-appellee.

WEBBER, Justice:

Defendants appeal from a judgment entered by the circuit court of Champaign County in a bench trial in favor of the plaintiff and against the defendants.

The amended complaint upon which the case was tried is a paradigm of the obscurantism which infects present-day pleading, the sum of which oft'times appears to be: write a letter to the judge and let him divine the theory of the action. With such powers of divination as we still possess, we construe the amended complaint as one grounded in the ancient action of trover and conversion and will deal with it in that context. Even though common law forms of action have long since been abolished in this State, if one seeks relief of the kind formerly encompassed by them, the same substantial averments as existed must be pleaded. Compare Bauscher v. City of Freeport (1968), 103 Ill.App.2d 372, 243 N.E.2d 650.

The facts, as found in the evidence and the exhibits in the case, may be summarized as follows:

The plaintiff's insureds, John and Margaret Unwiler, were killed in an automobile accident in 1974. Pursuant to the terms of the respective liability insurance policies, plaintiff paid $6,000 under each policy to the decedents' daughter as administrator of her parents' estates. At the time the administrator accepted the $12,000 in insurance proceeds, she signed a release prepared by the plaintiff wherein she agreed to reimburse the plaintiff out of the proceeds of any wrongful death recovery, less the reasonable costs incurred in effecting said recovery.

The administrator later initiated a wrongful death action and retained the defendants to represent her in that matter. Thereafter, the administrator was named a defendant in a related declaratory judgment action. In exchange for the defendants' agreement to represent her in the declaratory judgment action, the administrator agreed to pay them 50% of any amount recovered in the wrongful death action. The wrongful death action was subsequently settled for a total of $30,000, representing $15,000 for each death. The settlement check was made payable to the administrator and the defendants. The administrator then petitioned the court to settle the cause of action and to make payments to herself, the defendants, and the plaintiff. The attorney's fees and litigation costs were deducted proportionately from the administrator's share and the plaintiff's share of the proceeds. As a result, approximately 50% of the amount owed to the plaintiff pursuant to the release was withheld as attorney's fees and costs, and it received slightly less than $6,000 as total reimbursement under both policies. The circuit court approved this settlement distribution in an order dated September 20, 1976.

After the proceeds of settlement were distributed, a dispute arose between the plaintiff and the defendants as to the reasonableness of defendants' fees. This was the origin of the instant litigation.

Plaintiff's original complaint was dismissed on motion of the defendants and on leave granted an amended complaint was then filed. After alleging the facts of the deaths, its payment of $12,000, its subrogation thereto, and the filing of the wrongful death suits, the plaintiff's operative allegations were:

"7. That on or about September 20, 1976, the foregoing litigation was settled by said defendants and the sum of $15,000.00 was paid jointly to said defendants and the Estate of John A. Unwiler and the sum of $15,000.00 was paid jointly to said defendants and the Estate of Margaret G. Unwiler.

8. That at the time of the payment referred to hereinabove, the Defendants knew of the interest of the Plaintiff referred to hereinabove in paragraph 4.

9. That in spite of the knowledge referred to hereinabove, the Defendants withheld from the sum of $12,000 due to the Plaintiff, $6,052.96 and converted the same to their own use.

10. That the withholding referred to hereinabove was without the Plaintiff's authority, agreement, or consent and was unlawful.

11. That in the alternative, the Defendants are entitled to be compensated only for the fair value of any services that they performed; said services being valued at substantially less than the sum withheld by the Plaintiff, $6,052.96."

Defendants filed a motion to dismiss the amended complaint and an answer thereto. The gist of the motion was that the amended complaint failed to state a cause of action for conversion. That motion was denied and the cause proceeded to trial at bench. After hearing evidence and considering exhibits, the trial court entered judgment in favor of the plaintiff and against the defendants in the sum of $6,052.96. The court made no findings in support of its judgment.

The written judgment order was entered October 27, 1983, and on November 28, 1983, defendants filed a post-trial motion pursuant to section 2-1203 of the Code of Civil Procedure. (Ill.Rev.Stat.1983, ch. 110, par. 2-1203.) That motion again attacked the amended complaint as insufficient in law. It was denied.

On December 23, 1983, defendants filed a motion for attorney's fees under section 2-611 of the Code of Civil Procedure (Ill.Rev.Stat.1983, ch. 110, par. 2-611) alleging allegations in the complaint were made without reasonable cause and were untrue. That motion was also denied. This appeal then ensued.

Three issues are raised on appeal: (1) the sufficiency of the amended complaint, (2) the manifest weight of the evidence, and (3) the section 2-611 fees.

As a preliminary matter, plaintiff claims that defendants have waived the question of the sufficiency of the amended complaint by filing an answer after denial of their motion to dismiss. Defendants indicate that they discern a conflict in our decisions in Worner Agency, Inc. v. Doyle (1984), 121 Ill.App.3d 219, 76 Ill.Dec. 718, 459 N.E.2d 633, and People ex rel. Difanis v. Futia (1978), 56 Ill.App.3d 920, 15 Ill.Dec. 184, 373 N.E.2d 530.

We do not agree that any such conflict exists. Both decisions reflect different aspects of the general rule stated in Wagner v. Kepler (1951), 411 Ill. 368, 371, 104 N.E.2d 231, 233, where it is said:

"While defects in a complaint containing an incomplete or otherwise insufficient statement of a good cause of action may be waived, the question of whether a complaint absolutely fails to state or indicate any ground of liability which the law will recognize can be raised at any time."

In applying this rule to the instant case, we find that the defendants have waived the question of the sufficiency of the amended complaint and that the trial court did not commit reversible error in denying their motion to dismiss.

A proper complaint for conversion should allege: (1) an unauthorized and wrongful...