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                                     Appellate Court                             Date: 2018.07.18
                                                                                 16:39:51 -05'00'




        McCarthy v. Abraham Lincoln Reynolds, III, 2006 Declaration of Living Trust,
                               2018 IL App (1st) 162478



Appellate Court         GERALD S. McCARTHY, Plaintiff-Appellant, v. ABRAHAM
Caption                 LINCOLN REYNOLDS, III, 2006 DECLARATION OF LIVING
                        TRUST; ROZLYN TAYLOR, Individually and as Trustee; and
                        MARVIN GRAY, Defendants (Marvin Gray, Defendant-Appellee).



District & No.          First District, Fifth Division
                        Docket No. 1-16-2478



Filed                   March 30, 2018
Rehearing denied        May 1, 2018



Decision Under          Appeal from the Circuit Court of Cook County, No. 14-CH-09651; the
Review                  Hon. Kathleen M. Pantle, Judge, presiding.



Judgment                Affirmed in part; reversed in part; attorney fees vacated.


Counsel on              Tanya D. Woods, of Chicago, for appellant.
Appeal
                        Marvin W. Gray, appellee pro se.



Panel                   JUSTICE LAMPKIN delivered the judgment of the court, with
                        opinion.
                        Justices Hall and Rochford concurred in the judgment and opinion.
                                               OPINION

¶1       Plaintiff, Gerald McCarthy, was the beneficiary of a living trust. After the trustee died,
     defendant, Marvin Gray, was appointed as the attorney of that trust. Plaintiff filed a complaint
     against Gray for breach of fiduciary duty and tortious interference with plaintiff’s beneficiary
     interest. Plaintiff’s complaint eventually was dismissed. Plaintiff now appeals the order of the
     circuit court imposing Illinois Supreme Court Rule 137 (eff. July 1, 2013) sanctions against
     him and awarding attorney fees to Gray, who appeared pro se. Plaintiff contends the circuit
     court erred in dismissing his tortious interference claim based on res judicata and issuing Rule
     137 sanctions because the claim was frivolous. Plaintiff additionally contends the circuit court
     erred in awarding excessive fees as a sanction against him and in favor of defendant, appearing
     as a pro se attorney. Based on the following, we affirm in part and reverse in part.

¶2                                               FACTS
¶3       In 2006, plaintiff was named as a beneficiary to the Abraham Lincoln Reynolds, III,
     Declaration of Living Trust (Trust). Plaintiff filed a complaint in 2013 alleging an amendment
     to the Trust naming defendant, Rozlyn Taylor, as the trustee was invalid. Gray was presented
     as a witness in the subsequent trial. The circuit court ultimately ruled against plaintiff, and this
     court affirmed. McCarthy v. Taylor, 2014 IL App (1st) 132239.
¶4       On June 9, 2014, plaintiff filed a five-count complaint against defendants. In relevant part,
     plaintiff presented two counts against Gray (1) alleging Gray breached his fiduciary duty to
     plaintiff as a beneficiary of the Trust and (2) alleging Gray 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, Gray 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)). On
     February 27, 2015, the circuit court dismissed the tortious interference claim with prejudice
     pursuant to section 2-619(a)(4) of the Code (id. § 2-619(a)(4)) based on the doctrine of
     res judicata, where the cause of action essentially asked the circuit court to relitigate the issues
     determined in the 2013 case, namely, the veracity of the 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 (id. § 2-615). Plaintiff was granted leave
     to amend his complaint with regard to the breach of fiduciary duty claim.
¶5       On March 27, 2015, plaintiff filed an amended complaint containing one count against
     Gray for breach of fiduciary duty. Plaintiff alleged Gray had a duty to act with due care in
     providing plaintiff with services related to the Trust, such as an inventory and an accounting.
     On August 25, 2015, the circuit court again dismissed plaintiff’s claim against Gray. In so
     doing, the court stated:
                  “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


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             bare-bones assertion that a fiduciary duty exists, he has not alleged the essential
             elements of his cause of action.
                  McCarthy argues that a court can impose liability upon attorneys who knowingly
             and substantially assist their clients in causing another party’s injury. Thornwood, Inc.
             v. Jenner & Block, 344 Ill. App.3d 15, 28 (1st Dist. 2003). Though it is true that an
             ‘attorney can be held liable for assisting a client in a conspiracy or knowingly or
             substantially assisting a client commit a tort (Id. at 28-29),’ McCarthy has not alleged
             any facts in support of a claim that Gray illegally conspired with Rozlyn Taylor (the
             trustee) or that he knowingly or substantially assisted Taylor commit a tort. Rather,
             McCarthy pleads only that Gray failed to respond to McCarthy’s requests for an
             inventory and an accounting without pleading any facts to support his claim that Gray
             (rather than the trustee) has a duty to provide an inventory and an accounting.
             McCarthy also complains that Gray failed to reimburse him for part of his expenditures
             (i.e. $2000.00) without pleading any facts that demonstrate that Gray, as the attorney
             for the Trust, has the responsibility to make such reimbursement. Needless to say, there
             are no facts which, if proved, would demonstrate that Gray and Taylor have been
             illegally conspiring against McCarthy or that Gray has been assisting Taylor [to]
             commit any torts. Additionally, Gray’s legal opinion about whether McCarthy’s [sic] is
             a beneficiary of the Trust is not actionable. Gray’s use of the term ‘ostensible
             beneficiary’ does not make him liable to McCarthy.”
¶6       Thereafter, Gray filed a motion seeking Rule 137 sanctions, including an award for
     attorney fees and an award for costs, against plaintiff. In support of his request for sanctions,
     Gray alleged that plaintiff made false statements in his complaint and that he and plaintiff did
     not have an attorney-client relationship. Gray 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.”1
¶7       On March 30, 2016, the circuit court entered an order granting in part and denying in part
     Gray’s motion for Rule 137 sanctions. The court found that, while plaintiff did not plead any
     false statements of fact in his complaints, his cause of action against Gray for tortious
     interference was frivolous and, therefore, subject to Rule 137 sanctions. The court, however,
     concluded that sanctions were not appropriate for the breach of fiduciary duty claim in the
     original complaint or the amended complaint. Moreover, the court determined that, although
     Gray proceeded pro se, “the language of Rule 137 supports the notion that sanctions are
     available because the supreme court made it clear that a sanction may (but does not necessarily
     have to) include attorney fees.” Accordingly, the court found Gray would receive an award in
     his defense against a frivolous claim. We note that the court’s March 30, 2016, order confused
     the numeration of the counts that were sanctionable and nonsanctionable. The court’s ruling,
     however, is clear from the context of the order. Gray was provided 28 days to file a
     supplemental petition to support his requested sanctions.
¶8       Plaintiff then filed a motion to reconsider the March 30, 2016, order. In his motion,
     plaintiff argued the circuit court misapplied the law where his tortious interference claim was
     not barred by res judicata and, therefore, was not frivolous. Plaintiff additionally argued the

        1
          Gray later amended the sanction request to $12,106.03 for the time expended defending against
     the case as of November 13, 2015.

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       circuit court erred in awarding sanctions based on its res judicata finding because Gray did not
       raise the issue of res judicata in his motion seeking sanctions. According to plaintiff, he was
       denied an opportunity to respond to the res judicata argument.
¶9         On April 28, 2016, Gray filed a supplemental petition reducing his sanction request to
       $8745.58, which included $102.28 in costs for parking and postage fees. In the supplemental
       petition, Gray argued that if sanctions were appropriate for the breach of fiduciary duty count
       in the original complaint (as erroneously suggested in the circuit court’s March 30, 2016,
       order) then sanctions should be available for the breach of fiduciary duty count in the amended
       complaint as well because “the counts were virtually indistinguishable.” Gray reasoned that he
       should be awarded two-thirds of his sanction request because he was successful in receiving
       Rule 137 violations on two of the three counts filed against him.
¶ 10       On August 4, 2016, the circuit court entered a corrected order clarifying that it had found
       Rule 137 sanctions were appropriate only for the tortious interference claim, not the breach of
       fiduciary duty claim. In addition, on the same date, the court denied plaintiff’s motion to
       reconsider and entered a sanction award in Gray’s favor in the amount of $9707.98, which
       included $102.28 in costs. In so finding, the circuit court reiterated that plaintiff had no legal
       basis for filing his tortious interference claim where the matter of the amendment of the Trust
       had been litigated in the 2013 case. In that case, the circuit court found Gray to be a credible
       witness. This court then affirmed the circuit court’s findings on appeal. McCarthy v. Taylor,
       2014 IL App (1st) 132239. In terms of the sanction award, the circuit court found Gray’s
       request, i.e., $8745.48 plus $962.50 in connection with litigating the motion to reconsider, was
       appropriate. Specifically, the court stated: “The amount of time Gray spent was appropriate
       and reasonable, and the requested amounts are reasonable and customary.”
¶ 11       This appeal followed.

¶ 12                                             ANALYSIS
¶ 13       Plaintiff first contends the circuit court erred in dismissing his tortious interference claim
       on the basis of res judicata.
¶ 14       The doctrine of res judicata bars any subsequent actions between the same parties or their
       privies on the same cause of action where there has been a final judgment on the merits
       rendered by a court of competent jurisdiction. Nelson v. Chicago Park District, 408 Ill. App.
       3d 53, 60 (2011). Critically, res judicata bars not only what was decided in the first action but
       also whatever could have been decided in that action. Id. In order for the doctrine of
       res judicata to apply, there must be (1) a final judgment on the merits by a court of competent
       jurisdiction, (2) the existence of an identity of the causes of action, and (3) the existence of the
       same parties or their privies. Id. We review the questions of law presented by plaintiff’s
       res judicata challenge de novo. Id. We additionally review the dismissal of plaintiff’s claim
       under section 2-619 of the Code de novo. Id.
¶ 15       Plaintiff does not contest the finality of the judgment at issue. Instead, plaintiff argues that
       res judicata does not apply to this case where Gray was not a named party in the 2013 case and
       where the causes of action differ between the 2013 case and the underlying case. We disagree.
¶ 16       Although Gray was not named in the 2013 lawsuit, Taylor was named in both lawsuits.
       Moreover, Gray was the attorney for the Trust for which Taylor was named the successor
       trustee. Privity has been found to exist between parties who adequately represent the same


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       legal interests. Diversified Financial Systems, Inc. v. Boyd, 286 Ill. App. 3d 911, 916 (1997).
       “There is no generally prevailing definition of ‘privity’ that the court can apply to all cases;
       rather, determining privity requires careful consideration of the circumstances of each case.”
       Apollo Real Estate Investment Fund, IV, L.P. v. Gelber, 403 Ill. App. 3d 179, 190 (2010).
       Under the circumstances presented here, we find Gray was in privity with Taylor for purposes
       of res judicata where plaintiff’s concern in both cases was the validity of the Trust amendment
       and both Gray and Taylor represented the interests of the Trust.
¶ 17        We additionally find the causes of action were the same in both lawsuits for purposes of
       res judicata. Plaintiff insists the prior lawsuit involved the veracity of the Trust amendment
       while the underlying lawsuit involved the distribution and disbursement of the Trust assets.
       Plaintiff’s argument is not supported by the record. Plaintiff’s claim in the underlying lawsuit
       was labeled tortious interference; however, the complaint did not allege facts supporting a
       claim for tortious interference. Rather, plaintiff alleged Gray made false statements and
       presented misleading evidence in the 2013 case proceedings. Plaintiff’s purported claim,
       therefore, attempted to attack Gray’s credibility, which should have been raised in conjunction
       with the 2013 case in his efforts to invalidate the Trust amendment. See Nelson, 408 Ill. App.
       3d at 60.
¶ 18        We, therefore, conclude plaintiff’s tortious interference claim was properly dismissed
       based on the doctrine of res judicata.
¶ 19        Plaintiff next contends the circuit court abused its discretion in imposing Rule 137
       sanctions and erred in issuing sanctions without providing him with a hearing.
¶ 20        Rule 137 authorizes the imposition of sanctions against a party or his attorney for filing a
       pleading, motion, or other paper that is not well grounded in fact and warranted by existing law
       or which has been 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). “ ‘The purpose of Rule 137 is to prevent the filing of false and frivolous lawsuits.’ ”
       Nelson, 408 Ill. App. 3d at 68 (quoting Yunker v. Farmers Automobile Management Corp., 404
       Ill. App. 3d 816, 824 (2010)). Pursuant to Rule 137, an appropriate sanction may include an
       order to pay the other party’s reasonable expenses “incurred because of the filing of the
       pleading, motion or other document, including a reasonable attorney fee.” Ill. S. Ct. R. 137(a)
       (eff. July 1, 2013). Rule 137 is penal in nature, and therefore, its provisions must be strictly
       construed. In re Marriage of Adler, 271 Ill. App. 3d 469, 476 (1995). The circuit court is
       required to provide an explanation when imposing sanctions. Nelson, 408 Ill. App. 3d at 68. On
       review, this court may only affirm the imposition of sanctions on the grounds specified by the
       circuit court. Id. We review a circuit court’s decision to impose sanctions for an abuse of
       discretion. Id. at 67. An abuse of discretion occurs when no reasonable person could have
       shared the view taken by the circuit court. Id. at 67-68.
¶ 21        Here, in its August 4, 2016, corrected order, the circuit court held that plaintiff’s tortious
       interference claim was filed with no basis in law because it was barred by the doctrine of
       res judicata. The circuit court noted that plaintiff filed the 2013 lawsuit and litigated it to its
       final conclusion. The court further reasoned that plaintiff was “acutely aware of the
       proceedings because he verified the complaint in that case *** and he is a lawyer himself.”
       Plaintiff additionally appealed the circuit court’s decision of the 2013 case and later listed
       himself as cocounsel on the petition for leave to appeal to the Illinois Supreme Court.
       Accordingly, plaintiff was “well-aware” of the allegations in the 2013 complaint and the

                                                     -5-
       proceedings that took place in relation thereto. The circuit court found there was “no basis in
       law” for plaintiff to file his tortious interference claim where, despite being aware of the final
       judgment in the 2013 case, he never set forth any good faith explanation regarding why he filed
       the subsequent claim that was a clear attempt to relitigate the findings of fact and credibility
       determinations made in the 2013 case.
¶ 22       We find the circuit court did not abuse its discretion in imposing Rule 137 sanctions against
       plaintiff for violating the rule. As found by the circuit court, plaintiff, though represented by
       counsel in the 2013 case, expressly was involved and had knowledge of the allegations of that
       complaint and the resulting proceedings that occurred. Notwithstanding, plaintiff filed the
       instant action to challenge Gray’s credibility in the 2013 action, which is a claim that should
       have been raised in the 2013 case. We, therefore, conclude plaintiff’s tortious interference
       claim was not well-grounded in law because it was barred by res judicata. As a result, it was
       not unreasonable for the circuit court to find the tortious interference claim was filed for an
       improper purpose under Rule 137.
¶ 23       To the extent plaintiff argues he was sanctioned without a proper hearing, we disagree.
       Plaintiff alleges Gray failed to raise res judicata as a basis for the imposition of sanctions and,
       therefore, the circuit court erred in awarding sanctions on that basis without providing him
       with a hearing. Our review of the record demonstrates that the circuit court dismissed
       plaintiff’s tortious interference claim on February 27, 2015, based on res judicata and then
       granted Gray’s request for Rule 137 sanctions on March 30, 2016, where it found the tortious
       interference claim was frivolous. Accordingly, at the time the circuit court considered the Rule
       137 sanctions, plaintiff was fully aware that his tortious interference claim had been dismissed
       based on res judicata. Moreover, Gray’s motion requesting Rule 137 sanctions alleged he was
       entitled to such sanctions “[d]ue to the plaintiff’s unfounded, fallacious and specious
       allegations and pleadings.” Notwithstanding, plaintiff never requested an evidentiary hearing
       on any basis.
¶ 24       Furthermore, the circuit court’s determination that plaintiff’s claim was frivolous did not
       require an evidentiary hearing where it was capable of being made in reliance on the pleadings
       and the 2013 case. Cf. Century Road Builders, Inc. v. City of Palos Heights, 283 Ill. App. 3d
       527, 531 (1996) (finding an evidentiary hearing was necessary prior to imposing Rule 137
       sanctions where the sanctions were based on determinations that untrue statements in the
       pleading were without a reasonable cause and the pleadings were filed for an improper
       purpose). There were ample facts in the record to support the court’s finding that plaintiff’s
       tortious interference claim was barred by res judicata. We, therefore, find the circuit court did
       not err in ruling, without an evidentiary hearing, that Rule 137 sanctions were appropriate in
       light of plaintiff’s frivolous claim barred by the doctrine of res judicata. Instead, the circuit
       court’s decision was informed, based on valid reasoning, and followed logically from the facts.
       See Technology Innovation Center, Inc. v. Advanced Multiuser Technologies Corp., 315 Ill.
       App. 3d 238, 244 (2000).
¶ 25       We further find plaintiff forfeited any argument related to amending his tortious
       interference claim where he raised the issue for the first time on appeal. See Vandenberg v.
       Brunswick Corp., 2017 IL App (1st) 170181, ¶ 39.
¶ 26       Plaintiff finally contends the circuit court abused its discretion in awarding excessive fees
       against him to an attorney that proceeded pro se. Plaintiff cites Hamer v. Lentz, 132 Ill. 2d 49


                                                    -6-
       (1989), and its progeny to support his argument regarding the impropriety of awarding the fees
       to Gray.
¶ 27        We first address our standard of review. As stated, a circuit court’s decision to impose
       sanctions pursuant to Rule 137 is a matter of discretion and will not be overturned absent an
       abuse of that discretion. Nelson, 408 Ill. App. 3d at 67. However, whether a circuit court has
       the authority to grant attorney fees as an available remedy is a question of law that we review
       de novo. People ex rel. Schad, Diamond & Shedden, P.C. v. My Pillow, Inc., 2017 IL App (1st)
       152668, ¶ 101. Because plaintiff challenges the circuit court’s authority to award attorney fees
       under Rule 137 to Gray, who appeared pro se, our review is de novo.
¶ 28        In Hamer, the supreme court held that an attorney appearing pro se in an action brought
       pursuant to the Freedom of Information Act (FOIA) (Ill. Rev. Stat. 1987, ch. 116, ¶ 201 et seq.)
       was not entitled to attorney fees. Hamer, 132 Ill. 2d at 63. The FOIA contains a standard
       fee-shifting provision that is silent on the issue of a pro se attorney recovering fees. The
       supreme court reasoned that fees were not appropriate under those circumstances because the
       fee-shifting provision of the FOIA was designed (1) to remove the burden of legal fees as a
       deterrent from litigants, which was not a barrier for a pro se attorney because a lawyer
       representing himself does not incur legal fees, (2) to reduce unnecessary litigation by
       encouraging citizens, even lawyers, to seek objective legal advice before filing suit, and (3) to
       avoid abusive fee generation by unscrupulous attorneys. Id. at 61-62. Subsequent appellate
       decisions have expanded the rule to other contexts. See, e.g., Kehoe v. Saltarelli, 337 Ill. App.
       3d 669, 678 (2003) (holding an individual attorney was not entitled to recover fees for pro se
       representation in a malpractice action); In re Marriage of Pitulla, 202 Ill. App. 3d 103, 117-18
       (1990) (finding the rule barring pro se attorneys from collecting attorney fees applied in the
       context of a divorce proceeding); Uptown People’s Law Center v. Department of Corrections,
       2014 IL App (1st) 130161, ¶ 25 (denying fees under FOIA for work performed by in-house,
       salaried lawyers on behalf of its employee, an organization).
¶ 29        The parties have not cited, and our research has not uncovered, any case law applying the
       Hamer rule to a Rule 137 motion. We acknowledge the purpose of Rule 137 is, in relevant part,
       to curb the filing of frivolous pleadings. See Sanchez v. City of Chicago, 352 Ill. App. 3d 1015,
       1020 (2004). We further acknowledge that plaintiff’s tortious interference claim was
       undoubtedly a frivolous cause of action. Rule 137, however, is silent on the recovery of
       attorney fees for all pro se litigants, whether an attorney or not. Without any support
       establishing that attorney fees are appropriate under the circumstances before us, we choose to
       follow the demonstrated law providing that pro se attorneys are not entitled to attorney fees,
       especially because Rule 137 is penal in nature and must be strictly construed. See Adler, 271
       Ill. App. 3d at 476. We find the policy reasons provided in prior case law to be convincing;
       thus, we will not extend Rule 137 to provide attorney fees to pro se attorneys.
¶ 30        Our review of the case law demonstrates a significant purpose of awarding attorney fees is
       to enable potential plaintiffs to obtain the assistance of competent, independent counsel. Kay v.
       Ehrler, 499 U.S. 432, 436-37 (1991) (holding, two years after the Hamer decision, that a pro se
       attorney was not entitled to recover attorney fees under 42 U.S.C. § 1988 (1988)). When an
       attorney proceeds pro se, that lawyer is deprived of independent judgment. Id. at 437. The
       United States Supreme Court advised, instead, that “furthering the successful prosecution of
       meritorious claims is better served by a rule that creates an incentive to retain counsel in every
       such case.” Id. at 438. We find it notable that the Supreme Court, in a footnote, seemed to

                                                   -7-
       identify the existence of an attorney-client relationship as critical in establishing an objective
       assessment of a meritorious claim. Id. at 436 n.7 (discussing the difference between individual
       attorneys engaged in self-representation and organizational plaintiffs being represented by an
       employee of the organization). Moreover, as in Hamer, courts consistently have considered the
       fact that pro se attorneys are not burdened by legal fees, such that the fees create a barrier to
       seeking representation. See Uptown, 2014 IL App (1st) 130161, ¶ 25. Further, courts have
       highlighted that nonattorney pro se litigants are not entitled to fees for the time they spend
       litigating their own cases; therefore, pro se attorneys should not be treated differently. See
       Brazas v. Ramsey, 291 Ill. App. 3d 104, 110 (1997) (reasoning that pro se attorneys were
       barred from collecting attorney fees under FOIA because there was “no appreciable difference
       between a lawyer and a nonlawyer representing himself in a pro se complaint” as, “in either
       case, neither litigant incurs any legal fees in the prosecution of his action”); Aronson v. United
       States Department of Housing & Urban Development, 866 F.2d 1, 5 (1st Cir. 1989) (“Lawyers
       are not the only persons whose stock in trade is time and advice.”).
¶ 31        The only case we have uncovered that awarded attorney fees to a pro se attorney was
       Department of Conservation v. Lawless, 100 Ill. App. 3d 74 (1981). In Lawless, the Third
       District awarded attorney fees to a pro se attorney under the Eminent Domain Act (Ill. Rev.
       Stat. 1979, ch. 47, ¶ 1 et seq.). Id. at 82. We, however, do not find Lawless persuasive enough
       to depart from the cases discussed above where the Lawless court provided little, or no,
       analysis and no support for its reasoning.
¶ 32        In sum, we conclude Gray was not entitled to collect attorney fees in this case under Rule
       137 where he did not incur such fees while appearing pro se throughout the proceedings.

¶ 33                                         CONCLUSION
¶ 34       We affirm the judgment of the circuit court dismissing plaintiff’s tortious interference
       claim based on res judicata and affirm the finding that plaintiff violated Rule 137 in
       conjunction with the filing of that frivolous claim. We, however, reverse the circuit court’s
       finding that Gray, appearing pro se in the proceedings, was entitled to attorney fees and vacate
       that award.

¶ 35      Affirmed in part; reversed in part; attorney fees vacated.




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