                                    2016 IL App (1st) 150180


                                                                            FIFTH DIVISION
                                                                            December 30, 2016


No. 1-15-0180


KIMBERLY STIFFLE and SCOTT STIFFE,                   )       Appeal from the
                                                     )       Circuit Court of
       Plaintiffs-Appellants,                        )       Cook County.
                                                     )
       v.                                            )       No. 12 CH 15769
                                                     )
BAKER EPSTEIN MARZ, Doing Business as                )       The Honorable
Baker Construction Group,                            )       Lynn M. Egan,
                                                     )       Judge Presiding.
       Defendants-Appellees.                         )

_____________________________________________________________________________

       JUSTICE HALL delivered the judgment of the court with opinion.
       Presiding Justice Gordon and Justice Lampkin concurred in the judgment and opinion.


                                            OPINION


¶1     The plaintiffs, Kimberly and Scott Stiffle, appeal from an order of the circuit court of

Cook County granting the defendant’s, Baker Epstein Marz’s, motion for sanctions pursuant to

Illinois Supreme Court Rule 137 (eff. Feb. 1, 1994) and dismissed the plaintiffs’ second

amended complaint with prejudice. On appeal, the plaintiffs contend that the circuit court erred
No. 1-15-0180

when it found they violated Rule 137 and that dismissal of their second amended complaint with

prejudice was too severe a sanction. For the reasons set forth below, we affirm in part and vacate

in part the order of the circuit court.


                                          ¶ 2 BACKGROUND


                                          ¶ 3 I. The Pleadings


¶4      On June 14, 2013, the plaintiffs filed a single-count complaint against the defendant

alleging breach of contract in connection with the defendant’s construction of a residence for the

plaintiffs. The complaint sought $280,000 in damages for construction defects the plaintiffs

discovered after they moved into the residence. The complaint alleged that the plaintiffs entered

into a construction contract with the defendant sometime in or around September 2008, and

further alleged as follows:


        “The actual written contract is unavailable as of the date of filing this Complaint,

        although it is believed to be an AIA form contract between owner and contractor.”

In compliance with section 2-606 of the Code of Civil Procedure (Code) (735 ILCS 5/2-606

(West 2012)), attached to the complaint was the plaintiffs’ affidavit stating in pertinent part that

they had “entered into a written contract” with the defendant for the construction of a new single-

family residence. The plaintiffs set forth in general terms the duties of the defendant under the

contract and the price they agreed to pay the defendant. The affidavit stated further as follows:

                “As of the date of filing of this complaint, we are unable to locate the original or a

        copy of the executed written contract. However, we believe it was an AIA contract and

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       the terms described herein and cited in the complaint are the agreed upon terms of the

       contract.”

¶5     The defendant filed a motion to dismiss, inter alia, citing the plaintiffs’ failure to attach

the written contract to the complaint and their failure to state that they had signed a written

contract with the defendant. While, in response, the plaintiffs maintained that their affidavit was

sufficient, they were granted leave to file an amended complaint.

¶6     On February 7, 2014, the plaintiffs filed their first amended complaint for breach of

contract against the defendant. In the first amended complaint, the plaintiffs alleged that the

parties “began negotiating a standard AIA Document-A107 Agreement” for the construction of

the plaintiffs’ residence. They further alleged that the parties “eventually agreed on a modified

version of the AIA form agreement” whereby the defendant agreed to act as general contractor

for the construction of the residence, and the plaintiffs agreed to pay a specific sum for the

construction. The plaintiffs further alleged that “[t]he parties never executed the [AIA]

Agreement but nonetheless [the defendant] started work on the project at the [plaintiffs’]

request.” Attached to the first amended complaint was a copy of the non-executed AIA standard

agreement and the architect’s plans and specifications for new residence.

¶7     After its initial motion to dismiss the first amended complaint was denied as legally

insufficient, the defendant move to dismiss the first amended complaint pursuant to section 2-

619(a)(9) of the Code (735 ILCS 5/2-619(a)(9) (West 2012)). The defendant pointed out that

after alleging the existence of a written contract in the original complaint, the plaintiffs now

claimed that despite the lack of signatures, the parties had agreed to modifications of the standard


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AIA agreement. At the bottom of its pages, the modified standard AIA agreement was referred to

as the “Stiffle working draft – 08-01-07.doc[.]” The defendant maintained that the provision

dealing with the execution of the contract and the signature lines in the modified standard AIA

agreement evidenced that the document would have no effect unless signed by the parties.

¶8     The motion to dismiss was supported by the affidavit of Warren Baker who participated

in the preliminary negotiations on behalf of the defendant with the plaintiffs. Mr. Baker averred

that a standard AIA agreement or other formal written contract was consummated by the parties;

that the parties’ negotiations never brought them close to executing such a document; and that

the unsigned modified standard AIA agreement relied on by the plaintiffs was merely a series of

proposals and counter proposals.

¶9     The plaintiffs’ response to the motion to dismiss was supported by the affidavit of

plaintiff Kimberly Stiffle. She averred that the parties agreed on a modified version of the

standard AIA agreement and that the defendant proceeded to begin construction of the plaintiffs’

residence in accordance with the modified version of the standard AIA agreement.

¶ 10   The circuit court granted the defendant’s motion to dismiss without prejudice. The court

granted the plaintiffs leave to file an amended complaint alleging specific facts to establish the

terms of an oral contract between the parties.

¶ 11   In their second amended complaint, the plaintiffs alleged that the parties never executed a

written contract, but “they reached an oral agreement on or about August 27, 2007,” and alleged

the duties of the parties pursuant to the terms of the oral agreement. The second amended

complaint added a cause of action alleging that the defendant breached the implied warranty of


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habitability based on the various defects the plaintiffs discovered after they moved into the

residence.

                                    ¶ 12 II. Rule 137 Sanctions

¶ 13   The defendant responded with a motion for sanctions pursuant to Rule 137. The

defendant maintained that the first amended complaint violated Rule 137 by: (1) falsely asserting

that the parties had agreed to a modified version of the standard AIA agreement; (2) attempting

to enforce a unsigned document consisting of proposed and counter proposed terms which

neither party agreed to; and (3) submitting Kimberly Stiffle’s affidavit which contradicted the

plaintiffs’ joint affidavit submitted with the original complaint and contradicted their response to

the motion to dismiss in which they admitted the terms of the contract they were trying to

enforce were uncertain.

¶ 14   The defendant further alleged that in their second amended complaint, the plaintiffs and

their attorney violated Rule 137 in that (1) the original complaint alleged that the plaintiffs

entered into a written contract with the defendant, and they executed an affidavit averring to that

fact; (2) in her affidavit attached to the plaintiffs’ response to the defendant’s section 2-619.1

motion to dismiss, Kimberly Stiffle affirmed under oath that the parties were in negotiations in or

around August 2007 and eventually agreed to the modified standard AIA agreement attached to

the first amended complaint; (3) in the second amended complaint, the plaintiffs alleged that the

parties never executed the written contract but reached an oral agreement on or about August 27,

2007, directly contradicting the plaintiffs’ allegation in the original complaint that they entered

into a written contract with the defendant in or about September 2008; and (4) the averment that


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No. 1-15-0180

the parties reached an oral agreement on or about August 27, 2007, was directly contradicted by

e-mails between the plaintiffs and their attorney and the defendant indicating the parties were

still negotiating after that date. As sanctions for the violations, the defendant requested the

dismissal of the second amended complaint with prejudice and leave to file a request for attorney

fees and costs.

¶ 15   In response to the motion for sanctions, the plaintiffs explained that, prior to the filing of

the complaint, they attempted unsuccessfully to locate a signed copy of the written contract by

searching their records and contacting their architect. Due to the deterioration of their

relationship with the defendant, they did not request a copy of the signed copy from it.

Nonetheless, because of the size of the project and amount of money involved in the

construction, in excess of 1 million dollars, the plaintiffs “reasonably believed they had executed

a contract with Defendant.”

¶ 16    Moreover, after the plaintiffs responded to the defendant’s motion to dismiss the first

amended complaint, the defendant’s attorney contacted the plaintiffs’ attorney advising that the

defendant’s file “did not include a signed initial contract between Plaintiffs and Defendant,” but

there were multiple change orders providing in pertinent part as follows:

       “This Change Order amends the ‘Abbreviated Standard Form of Agreement

       between Owner and Contractor for Construction Projects of Limited Scope where the

       basis of Payment is a Stipulated Sum (AIA Document A107-1997)’ dated ‘PENDING’

       and/or the Letter of Intent, executed on August 25, 2007, by which the Owner authorized

       the Contractor to begin work and which separately and together serve as the


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No. 1-15-0180

        understanding and agreement between the Owners and the Contactor for the premises

        known as 4207 N. Greenview, Chicago, Illinois.” (Emphasis omitted.)

However, the defendant’s attorney noted that not all the change orders were signed by the

plaintiffs and the defendant.

¶ 17    The plaintiffs maintained that the first amended complaint rectified their mistaken belief

that there was a signed modified standard AIA agreement in existence but did not change the

nature of their breach of contract claim. The allegation in the second amended complaint that the

parties had an oral agreement was based on the numerous change orders referring to the August

25, 2007, AIA Agreement and/or Scott Stiffle’s letter of intent. The plaintiffs reason that in order

for the defendant to commence construction, “there must have been an agreement between the

parties.”

                                ¶ 18 III. The Circuit Court’s Ruling

¶ 19    On December 11, 2014, the circuit court issued its ruling on the defendant’s motion for

sanctions. In a lengthy and detailed order, the court reviewed the facts pertaining to the parties’

negotiations over the construction of the residence and the procedural history of the plaintiffs’

breach of contract claim. The court noted that the defendant had the burden of establishing that

the plaintiff made untrue and false allegations without reasonable cause and that the burden was

satisfied if the plaintiffs or their attorney knew or should have known that the pleadings were

untrue at the time the pleadings were filed.

¶ 20    In determining that the defendant had met its burden, the court stated in pertinent part as

follows:


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No. 1-15-0180

                “For instance, the original Complaint alleged, without equivocation, the existence

       of a written contract. Plaintiffs and their attorney now admit that no such written contract

       was ever agreed upon or executed. Yet, plaintiffs signed an affidavit supporting the false

       claim and their attorney affixed his signature to the Complaint which included the false

       claim and affidavit. Plaintiffs’ current argument that they reasonably believed that an

       executed, written contract controlled the obligations of the parties is, to put it mildly,

       preposterous given the lengthy negotiations and disagreements about the initial AIA

       agreement form submitted by defendant. Their attorney’s suggestion that he, too,

       reasonably believed such a contract existed is not only preposterous given his

       representation of the plaintiffs during the negotiations, but downright disheartening

       considering his status as an officer of the court.”

¶ 21   Turning to the allegations of the first amended complaint, the circuit court found that

while the plaintiffs conceded the lack of an executed contract, “they persisted in advancing the

false narrative about a written contract by again alleging the existence of a written contract

which simply had not been formally executed by the parties.” The plaintiffs unequivocally

alleged in the first amended complaint that the parties “proceeded forward with their respective

obligations pursuant to the terms of the Agreement,” despite the fact that they never formally

executed the agreement. The court found more egregious the fact that the plaintiffs attached a

copy of the modified standard AIA agreement to the first amended complaint even though they

knew that it had not been accepted by the defendant as the controlling document. The court

found that the plaintiffs knew or should have known “there was no written contract and that the


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No. 1-15-0180

modified AIA form did not control the parties’ obligations. The court found “unfathomable” that

the plaintiffs’ attorney did not affirmatively know these facts. Moreover, the extensive

negotiations and disagreements over the handwritten modifications the plaintiffs added to the

unexecuted standard AIA agreement and the defendant’s outright rejection of some of the

modifications explained why the parties never executed the modified standard AIA agreement,

“a fact which simply could not have escaped the notice of plaintiffs or their attorney.” The fact

that the plaintiffs attached the unexecuted modified standard AIA agreement to the first amended

complaint proves they knew that a written contract never existed, and their shift from an

executed written contract to an unexecuted modified standard AIA agreement “suggests a

deliberate intent to deceive given the fact that plaintiffs and their attorney knew a written

contract had never been agreed upon or executed.”

¶ 22   The circuit court found that, in an effort to avoid dismissal, the plaintiffs and their

attorney continued to “perpetuate falsehoods,” when in response to the defendant’s motion to

dismiss the first amended complaint, the plaintiff’s attorney signed a document expressly stating

that “the parties agreed on a modified version” of the standard AIA agreement, and Kimberly

Stiffle averred that the parties had “ ‘eventually agreed on a modified version of the AIA

Agreement which is attached to the Amended Complaint as Exhibit A.’ ” Finally, the court found

that in the second amended complaint, plaintiffs and their attorney abandoned the prior

allegations and sworn statements about a written contract and now alleged an oral contract. This

oral contract was reached “on a date that preceded the negotiations about the proposed written




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No. 1-15-0180

contract.” Therefore, the “[p]laintiffs and their attorney not only should have known this was

false, but the record affirmatively demonstrates that they affirmatively did know it was false.”

¶ 23   The circuit court found that sanctions were not only warranted but required to punish the

plaintiffs’ egregious behavior, since the violations (1) went to the very heart of the proposed

claim; (2) were contained in briefs, complaints and affidavits signed by the plaintiffs and their

attorney; (3) the repetitive nature of the falsehoods increased the cost of litigation and caused

excessive delay in the case; and (4) because of the violations which took up the court’s time in

dealing with them, the time available for other pending cases was reduced.

¶ 24   Finally, the court found that dismissal with prejudice was the appropriate sanction in

particular since the plaintiffs continued to deny the inappropriateness of their conduct, and a

lesser sanction would not serve to deter such conduct on their part or ameliorate the prejudice to

the defendant and the litigation process.

¶ 25   The plaintiffs filed a timely notice of appeal from the circuit court’s order granting the

defendant’s motion for sanction and dismissing the second amended complaint with prejudice.


                                            ¶ 26 ANALYSIS


                                     ¶ 27 I. Rule 137 Violation


                                    ¶ 28 A. Standard of Review


¶ 29   “Whether Rule 137 has been violated is reviewed under the manifest weight of the

evidence standard.” Sanchez v. City of Chicago, 352 Ill. App. 3d 1015, 1020-21 (2004). A

judgment is against the manifest weight of the evidence “where the opposite conclusion is clearly

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No. 1-15-0180

evident or where the finding is unreasonable, arbitrary, or not based on the evidence presented.”

In re Estate of Bennoon, 2014 IL App (1st) 122224, ¶ 70.


                                           ¶ 30 B. Discussion


¶ 31    Compliance with Rule 137 requires that “[e]very pleading, motion and other document of

a party represented by an attorney shall be signed by at least one attorney of record. *** The

signature of an attorney or party constitutes a certificate by him that he has read the pleading,

motion or other document; that to the best of his knowledge, information, and belief formed after

reasonable inquiry it is well grounded in fact and is warranted by existing law or a good-faith

argument for the extension, modification, or reversal of existing law, and that it is not 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 (eff. July 1, 2013).


¶ 32    Rule 137 is intended to prevent the filing of false and frivolous lawsuits. Sanchez, 352 Ill.

App. 3d at 1020. The rule is designed to prohibit the abuse of the judicial process by claimants

who make vexatious and harassing claims based upon unsupported allegations of fact or law but

not to penalize attorneys or litigants who were zealous but unsuccessful. Peterson v. Randhava,

313 Ill. App. 3d 1, 7 (2000). The party seeking sanctions for a violation of Rule 137 bears the

burden of proof and must show that the opposing party made untrue and false allegations without

reasonable cause. Rubino v. Circuit City Stores, Inc., 324 Ill. App. 3d 931, 946 (2001). Since

Rule 137 is penal in nature, it must be strictly construed. Sanchez, 352 Ill. App. 3d at 1020. “An

appellate court should base its review of the trial court’s decision on three factors: (1) whether


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the court’s ruling was an informed one; (2) whether the ruling was based on valid reasons that fit

the case; and (3) whether the ruling followed logically from the stated reasons to the particular

circumstances of the case.” Sanchez, 352 Ill. App. 3d at 1020.


¶ 33    The plaintiffs assert that, prior to filing the complaint in this case, they and their attorney

tried to locate the written contract by searching their records and contacting their architect. They

explained their failure to contact the defendant prior to filing the suit because of the contentious

relationship that had developed between them. The plaintiffs point out that while the architect

did not have a copy of the contract, he did not advise them that a standard AIA agreement

between the parties was never signed. Therefore, the plantiffs’ and their attorney’s actions were

reasonable at the time the complaint was filed. See Sanchez, 352 Ill. App. 3d at 1020 (“[c]ourts

should use an objective standard in determining what was reasonable under the circumstances as

they existed at the time of the filing”).


¶ 34    The plaintiffs’ claim that they acted reasonably under the circumstances is belied by the

record. After their initial investigation failed to produce a written contract, the plaintiffs filed a

complaint for breach of contract supported by their joint affidavit in which they affirmatively

stated that the parties had entered into a written contract which was unavailable at the time of

filing. Some six months later, the plaintiffs filed their first amended complaint alleging that the

parties had entered into a modified version of the standard AIA agreement but acknowledged

that it was unsigned. Following the dismissal of the first amended complaint, the plaintiffs filed

their second amended complaint in which they denied that a written contract existed between the

parties but now alleged that the parties had an oral contract. Under the most benign view of these
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complaints and supporting affidavits, it is apparent that at no time did the plaintiffs have a

reasonable belief that a written contract existed between the defendant and them.


¶ 35   Next, the plaintiffs contend that their first amended complaint had a basis in existing law.

They point out that a contract can be made up of several documents, such as the change orders in

this case, and the fact that the defendant constructed their residence reflected that the parties

were operating under a modified version of the standard AIA agreement, albeit an unsigned one.

However, the plaintiffs did not allege that theory in the first amended complaint. Instead, both in

the first amended complaint and in the supporting affidavit of plaintiff Kimberly Stiffle, the

plaintiffs alleged that the parties agreed on a modified version of the AIA standard agreement.


¶ 36   The plaintiffs contend that the circuit court erred when it found that they violated Rule

137 by alleging in the second amended complaint that they entered into an oral contract with the

defendant in August 2007 despite evidence that negotiations with the defendant over the terms

were ongoing. The plaintiffs argue that the court disregarded the fact that the defendant’s

construction of their residence was underway in September 2007. The plaintiffs reason that there

must have been an agreement in place for the defendant to begin construction. Not only is such

an argument not supported by the record in the case, but it refutes the plaintiffs’ claim that they

conducted a reasonable investigation of the facts prior to filing the complaint in this case

allowing them to allege affirmatively that the parties entered into a written contract.


¶ 37   The plaintiffs argue that the circuit court’s findings were based on conduct occurring

after the filing of the complaint, rather than what was reasonable at the time the complaint was


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No. 1-15-0180

filed. “Implicit in [Rule 137] is a requirement that ‘ “an attorney promptly dismiss a lawsuit once

it becomes evident that it is unfounded.” ’ ” Lake Environmental, Inc. v. Arnold, 2015 IL

118110, ¶ 13 (quoting American Service Insurance v. Miller, 2014 IL App (5th) 130582, ¶ 13

quoting Rankin v. Heidlebaugh, 321 Ill. App. 3d 255, 267 (2001)). At the very latest, the

affidavit of Mr. Baker in support of the defendant’s motion to dismiss the amended complaint

should have alerted the plaintiffs and their attorney to the distinct possibility that a written

contract did not actually exist, prompting the dismissal of the lawsuit at that point. Instead, the

plaintiffs filed their second amended complaint, in which they denied the existence of a written

contract, a direct contradiction of their prior allegations and averments.


¶ 38   The plaintiffs rely on Couri v. Korn, 202 Ill. App. 3d 848 (1990). In that case, the

reviewing court upheld the trial court’s decision that the plaintiff and his attorney had not

violated Rule 137. The court found no abuse of discretion in the denial of Rule 137 sanctions

where the allegation in the complaint as to the number of shares to be purchased conflicted with

the plaintiff’s deposition testimony that the number of shares was never discussed. Couri, 202 Ill.

App. 3d at 855. The court noted that “[a]motion for attorney fees will not be granted where the

movant has only shown that the facts were ultimately adverse to the pleadings as set forth in the

trial court.” Couri, 202 Ill. App. 3d at 855. In affirming the denial of sanctions against the

plaintiff’s attorney, the reviewing court found it reasonable for the attorney to rely on her client’s

recitation of the facts of an oral contract with the deceased since they were the only witnesses to

the oral contract. Couri, 202 Ill. App. 3d at 856. In addition, during the litigation, the attorney

continued to investigate the possibility of other witnesses to the oral contract. Couri, 202 Ill.

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No. 1-15-0180

App. 3d at 857. Finally, Rule 137 did not require attorneys to anticipate defenses to a claim or

withdraw an action the instant a defense is interposed in order to avoid the imposition of

sanctions. Couri, 202 Ill. App. 3d at 857.


¶ 39   In contrast to Couri, the facts were not merely adverse to the plaintiffs’ allegation that

they entered into a written contract with the defendant, they were nonexistent. The plaintiffs

continued to insist in their pleadings that a written contract existed in some form until they

finally admitted that they never entered into a written contract with the defendant. Unlike Couri,

the plaintiffs’ attorney did not have to rely solely on the plaintiffs’ representation as to the

existence of a written contract since he participated in the negotiations with the defendant.


¶ 40   We conclude that the circuit court’s determination that the plaintiffs and their attorney

violated Rule 137 was not against the manifest weight of the evidence.


                                   ¶ 41 II. Imposition of Sanctions


¶ 42   The plaintiffs contend that the dismissal of their second amended complaint was too

drastic a sanction in light of their alleged violation of Rule 137.


                                    ¶ 43 A. Standard of Review


¶ 44   An order granting or denying Rule 137 sanctions is reviewed for an abuse of discretion.

Peterson, 313 Ill. App. 3d at 9. “A court abuses its discretion only if it acts arbitrarily, without

the employment of conscientious judgment, exceeds the bounds of reason and ignores




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recognized principles of law; or if no reasonable person would take the position adopted by the

court.” Payne v. Hall, 2013 IL App (1st) 113519, ¶ 12.


                                         ¶ 45 B. Discussion


                                  ¶ 46 1. Imposition of Sanctions


¶ 47   Unlike section 2-611 of the Code (Ill. Rev. Stat. 1989, ch. 110, ¶ 2-611)), which it

preempted, Rule 137 grants the court the discretion whether to impose a sanction, even if a

violation of the rule is found. In re Marriage of Sykes, 231 Ill. App. 3d 940, 946 (1992). Under

Rule 137, sanctions may be granted “(1) when a pleading, motion, or other paper is not ‘well

grounded in fact’ or is not ‘warranted by existing law or a good-faith argument for the extension,

modification, or reversal of existing law,’ or (2) when interposed for purposes such as to ‘ harass

or to cause unnecessary delay or needless increase in the cost of litigation.’ ” People v. Stefanski,

377 Ill. App. 3d 548, 551 (2007) (quoting 155 Ill. 2d R. 137).


¶ 48   In its order granting sanctions to the defendant, the circuit court provided a thorough and

detailed basis for imposition of sanctions. The court traced the history of the pleadings filed by

the plaintiffs that were signed by their attorney as well as the affidavits averred to by the

plaintiffs. The court’s conclusion that the plaintiffs and their attorney filed pleadings which they

knew or should have known were false was well-supported by the record and belied the

plaintiffs’ assertion that they merely made mistakes about the existence of the written contract

and reasonably believed their allegations of each successive complaint when each was filed.

Long after the plaintiffs and their attorney should have at the very least questioned the existence

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of a written contract, signed or unsigned, they continued to assert the existence of this document

rather than voluntarily dismiss the case until they could ascertain the basis of their breach of

contract claim. Instead, they perpetuated the inherent falsity in all their complaints by alleging

that there was no written contract but that the parties reached an oral agreement in August 2007,

in direct contradiction to their prior allegations and the evidence that negotiations were ongoing

past that date.


¶ 49    The plaintiffs claim that the defendant shares the responsibility for their mistaken belief

that a written contract existed. They insist that the defendant was just as confused as they were as

to the existence of the written contract. While acknowledging that the defendant had no

obligation to assist the plaintiffs or their attorney in the preparation of their complaint, since both

parties were equally confused as to the existence of the written contract, the plaintiffs lacked the

“subjective bad faith” required to impose sanctions for increasing the cost of litigation.


¶ 50    In Stefanski, the reviewing court held that to award sanctions for a needless increase in

the cost of litigation, there must be subjective bad faith, and where the court specifically found

no subjective bad faith on the part of the State, the court could not rely on the needless increase

in the cost of litigation to sanction the State. Stefanski, 377 Ill. App. 3d at 552. In contrast, in the

present case, the circuit court characterized the plaintiffs’ and their attorney’s violation of Rule

137 as egregious and repetitious in continuing their perpetuation of false allegations in their

pleadings which increased the cost of litigation in this case. Moreover, an objective

determination of reasonableness applies to whether a filed paper was grounded in fact or

warranted by existing law. Stefanski, 377 Ill. App. 3d at 552. When that portion of Rule 137 is at
                                                   17
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issue, it is not sufficient that the party “ ‘honestly believed’ that the allegations raised were

grounded in fact and law.” Stefanski, 377 Ill. App. 3d at 552 (quoting Fremarek v. John Hancock

Mutual Life Insurance Co., 272 Ill. App. 3d 1067, 1074-75 (1995)).


¶ 51    The plaintiffs next argue that the defendant’s defeat of their claim based on the

nonexistent written contract was not prima facie evidence that their claim had no foundation and

that they were sanctioned because they did not prevail. They further argue that the pleadings

must not only be untrue and made without reasonable cause but must relate to facts not

conclusions of law. The plaintiffs reason that the circuit court’s ruling was based improperly on

the legal conclusion that the parties had not entered into a legally binding contract. Therefore, the

plaintiffs assert that their breach of contract claim was not frivolous, and sanctions should not

have been imposed.


¶ 52    The plaintiffs’ argument ignores the basis on which the sanctions were imposed in this

case. From the very beginning of this litigation, the plaintiffs could have alleged, as they

ultimately did, that they entered into an oral contract with the defendant for the construction of

their residence. They did not. The basis for the dismissal sanction was the plaintiffs’ false

pleadings that a written contract existed and their persistence in that falsity even when

confronted with evidence that at the very least should have caused them to question the

truthfulness of their allegations that the parties had entered into a written contract and the

defendant’s breach of its duties under that contract.




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¶ 53   We conclude that the circuit court did not abuse its discretion when it imposed sanctions

after determining that the plaintiffs’ and their attorney’s actions in filing pleadings were not well

grounded in fact or warranted by existing law and needlessly increased the cost of litigation.


                           ¶ 54 2. Appropriateness of the Sanction


¶ 55   Even if sanctions were warranted in this case, the plaintiffs maintain that their conduct

was not so egregious as to warrant the dismissal of their second amended complaint with

prejudice. The plaintiffs argue that striking the offending allegations would be the appropriate

sanction in this case.


¶ 56   Rule 137 does not limit the available sanctions, rather it “[i]t allows for ‘an appropriate

sanction, which may include an order to pay to the other party or parties the amount of

reasonable expenses incurred because of the filing of the pleading, motion or other paper,

including a reasonable attorney fee.’ ” (Emphasis omitted.) Sanchez, 352 Ill. App. 3d at 1023

(quoting 155 Ill. 2d R. 137). The question is the appropriateness of the sanction in light of the

misconduct. See Sanchez, 352 Ill. App. 3d at 1024 (the reviewing court found that the sanction

damaged the plaintiff out of proportion to the misconduct committed by his attorney).


¶ 57     In Berg v. Mid-America Industrial, Inc., 293 Ill. App. 3d 731 (1997), the plaintiffs failed

to appear at a status call, and the trial court dismissed the complaint with prejudice. The court

denied the motion to vacate the dismissal on the grounds that the plaintiffs and their attorney had

shown deliberate disregard for the court’s authority. This court reversed the order, finding that

the discovery rules did not authorized dismissal with prejudice of a complaint as a sanction in the

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case where no discovery orders were violated and the plaintiffs’ isolated acts did not constititute

disregard of the trial court’s authority. Berg, 293 Ill. App. 3d at 735-36.


¶ 58   This court further found that Rule 137 could not be the basis for the dismissal sanction.

The violations consisted of the improper inclusion of an attorney’s identification number on one

of two summonses and the presence of a disqualified attorney whose attempt to participate in the

proceedings was precluded by the trial court. Berg, 293 Ill. App. 3d at 736-37. There was no

evidentiary hearing to resolve the factual disputes, and the trial court did not make the necessary

legal or factual findings required to impose sanctions. The reviewing court did not reject

dismissal with prejudice as an appropriate sanction. Rather, the court remanded the case to the

trial court to provide sufficient information or valid reasons as to why dismissal was the

appropriate sanction. Berg, 293 Ill. App. 3d at 737.


¶ 59   The plaintiffs rely on Gonzalez v. Nissan North America, Inc., 369 Ill. App. 3d 460

(2006) and Smith v. City of Chicago, 299 Ill. App. 3d 1048 (1998). In Gonzalez, the reviewing

court held that the trial court erred in relying on Rule 137 as a basis for dismissing the complaint

with prejudice, since Rule 137 concerned the filing of false pleadings and frivolous lawsuits and

was not applicable to a discovery violation. Gonzalez, 369 Ill. App. 3d at 468-69. In Smith, the

reviewing court reversed a directed verdict entered for the defendant as a sanction for the

plaintiff’s attorney disclosure of a witnesses’ testimony to the plaintiff’s expert witness, was

disproportionate to the attorney’s misconduct. Smith, 299 Ill. App. 3d at 1055. While recognizing

that such a sanction might be appropriate under more extreme circumstances, the court found



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that the record did not support such a drastic sanction in the case before it. Smith, 299 Ill. App.

3d at 1055.


¶ 60   More recently, in Santiago v. E.W. Bliss Co., 2012 IL 111792, our supreme court

addressed a certified question asking whether the drastic sanction of dismissal may be imposed

where the plaintiff filed the complaint using a fictitious name without the circuit court’s

approval. The court observed that the power to dismiss a complaint with prejudice derived from

“Supreme Court Rule 219(c) (Ill. S. Ct. 219(c) (eff. July 1, 2002)) and the trial court’s inherent

authority to control its docket.” Santiago, 2012 IL 111792, ¶ 16. The court held that as a matter

of law, the trial court had the discretion to dismiss the complaint, explaining as follows:


       “Dismissal is neither mandatory nor precluded under those circumstances. Dismissal is

       justified only when (1) there is a clear record of willful conduct showing deliberate and

       continuing disregard for the court’s authority; and (2) a finding that lesser sanctions are

       inadequate to remedy both the harm to the judiciary and the prejudice to the opposing

       party.” Santiago, 2012 IL 111792, ¶ 20.


¶ 61   As to the first Santiago requirement set forth in Santiago, the circuit court found that the

conduct of the plaintiffs and their attorney showed a deliberate and willful disregard for the

court’s authority by repeatedly filing complaints and affidavits containing allegations and

averments which they knew or should have known were untrue. As to the second Santiago

requirement, the court found that the plaintiffs’ actions increased the cost of litigation and

deprived other litigants of the court’s time. The court determined the fact that the failure of the


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plaintiffs and their counsel to recognize the inappropriateness of their conduct required no less a

sanction than the dismissal of their second amended complaint with prejudice.


¶ 62   The circuit court’s findings satisfy the first Santiago requirement that there be a clear

record of willful conduct showing deliberate and continuing disregard for the circuit court’s

authority. However, we are reluctant to endorse the court’s imposition of the extreme penalty of

dismissal with prejudice without more specific findings as to why lesser penalties were

inadequate to remedy the harm to the judiciary and prejudice to the opposing party as required by

Santiago.


¶ 63   We conclude that this case must be remanded to the circuit court for more specific

findings that lesser sanctions were inadequate to remedy the harm to the judiciary and the

prejudice to the defendant and that dismissal of the second amended complaint with prejudice

was the appropriate sanction in this case.


                                    ¶ 64 III. Rule 375 Sanctions


¶ 65   Pursuant to Illinois Supreme Court Rule 375(b) (eff. Feb. 1, 1994), the defendant requests

that this court sanction the plaintiffs and their attorney for filing an unfounded and frivolous

appeal. A dismissal with prejudice is such a drastic sanction and is applicable only in the most

egregious situation. We are remanding this case for further proceedings regarding the imposition

of that sanction. Therefore, the plaintiffs’ appeal was neither frivolous nor so lacking in

foundation as to warrant sanctions for pursuing this appeal. We decline to impose Rule 375(b)

sanctions. Swanson v. Cater, 258 Ill. App. 3d 157, 163 (1994).

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                                      ¶ 66 CONCLUSION


¶ 67   We affirm the judgment of the circuit court finding that the plaintiffs and their attorney

violated Rule 137, warranting the imposition of sanctions. We vacate that portion of the circuit

court’s order dismissing the second amended complaint with prejudice as a sanction for the

plaintiffs’ violation of Rule 137 and remand for further proceedings to determine whether

dismissal with prejudice was the appropriate sanction in light of the second requirement set forth

in Santiago.


¶ 68   Affirmed in part and vacated in part; cause remanded with directions.




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