                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




                            Hess v. Loyd, 2012 IL App (5th) 090059




Appellate Court            LAWRENCE J. HESS, Plaintiff-Appellant, v. RONALD O. LOYD and
Caption                    CATHY J. LOYD, Defendants-Appellees (Bruce A. Carr, Party-
                           Appellant).



District & No.             Fifth District
                           Docket No. 5-09-0059


Filed                      January 17, 2012


Held                       In an action asserting a lien for the attorney fees allegedly due plaintiff for
(Note: This syllabus       the representation he provided to defendants in a medical malpractice
constitutes no part of     action during the time plaintiff was employed by a law firm that
the opinion of the court   terminated him before the case was resolved, the trial court properly
but has been prepared      granted judgment on the pleadings in favor of defendants where the
by the Reporter of         contract plaintiff had with the law firm where he was employed provided
Decisions for the          no basis on which he could proceed against defendants, and based on the
convenience of the         findings that plaintiff’s complaint was not warranted by existing law and
reader.)
                           was interposed for an improper purpose, sanctions were properly imposed
                           pursuant to Supreme Court Rule 137 and sanctions on appeal were
                           granted pursuant to Rule 375.


Decision Under             Appeal from the Circuit Court of Montgomery County, No. 08-L-11; the
Review                     Hon. Kelly D. Long, Judge, presiding.


Judgment                   Affirmed; motion to supplement the record on appeal denied; motion for
                           sanctions on appeal granted; cause remanded.
Counsel on                 Bruce A. Carr, of Rex Carr Law Firm, LLC, of East St. Louis, for
Appeal                     appellants.

                           Todd A. Bresney, of Kanoski & Associates, of Bloomington, for
                           appellees.


Panel                      JUSTICE SPOMER delivered the judgment of the court, with opinion.
                           Justice Stewart concurred in the judgment and opinion.
                           Justice Goldenhersh concurred in part and dissented in part, with opinion.



                                             OPINION

¶1          The plaintiff, Lawrence J. Hess, appeals from the December 5, 2008, order of the circuit
        court of Montgomery County which granted a judgment on the pleadings to the defendants,
        Ronald O. Loyd and Cathy J. Loyd, pursuant to section 2-615(e) of the Illinois Code of Civil
        Procedure (the Code) (735 ILCS 5/2-615(e) (West 2008)). Mr. Hess and his attorney, Bruce
        A. Carr, also appeal from the January 30, 2009, order of the circuit court of Montgomery
        County, as amended by an order dated March 2, 2010, which was entered while this appeal
        was held in abeyance pursuant to an order entered by this court. Pursuant to the circuit
        court’s orders, Mr. Hess and Mr. Carr are required to pay the Loyds a total of $9,873.83 for
        attorney fees and costs as sanctions pursuant to Illinois Supreme Court Rule 137 (eff. Feb.
        1, 1994). For the following reasons, we affirm all three orders entered by the circuit court.
        Also before this court is the Loyds’ motion for sanctions on appeal pursuant to Illinois
        Supreme Court Rule 375 (eff. Feb. 1, 1994), which was taken with the case. For the
        following reasons, we allow the motion and remand this case to the circuit court for a
        determination of the amount of sanctions on appeal. Finally, before this court is the
        defendants’ emergency motion to supplement the record with this court’s previous decision
        in Loyd v. Billiter, No. 5-09-0065 (Oct. 15, 2010) (unpublished order pursuant to Illinois
        Supreme Court Rule 23 (eff. May 30, 2008)). We hereby deny the motion as moot, as this
        court is fully cognizant of its prior decisions and has fully considered the relevance of that
        decision herein.

¶2                                             FACTS
¶3          Mr. Hess is an attorney who is a former associate of Kanoski & Associates, an
        incorporated law firm. Mr. Hess, through his attorney, Mr. Carr, filed a complaint in the
        circuit court of Montgomery County on July 17, 2008, against the Loyds, who were clients
        of Kanoski & Associates during the time that Mr. Hess was employed there. Attached to the
        complaint is a copy of a contingency fee contract, dated February 11, 2002, between Kanoski
        & Associates and the Loyds, whereby the Loyds agreed that Kanoski & Associates would

                                                 -2-
     pursue their medical malpractice claim on their behalf. Also attached to the complaint is an
     employment contract between Mr. Hess and Kanoski & Associates, dated May 9, 2001,
     which clearly states the following:
              “Employee acknowledges that while licensed employees must perform all legal
          services, the clients contracting for said services are clients of the Corporation and not
          of any individual employee.”
¶4        The employment contract further provides that Mr. Hess would receive, as compensation
     for his services, a salary plus a bonus in the form of a percentage of the fees he generated on
     behalf of Kanoski & Associates.
¶5        The complaint alleges that Kanoski & Associates assigned the Loyds’ medical
     malpractice file to Mr. Hess for handling. The complaint contains a multitude of paragraphs
     regarding other clients’ files that Mr. Hess worked on and other allegations that appear to be
     directed at the conduct of Kanoski & Associates which have no relevance to the Loyds, who
     are the sole defendants. The complaint alleges that on February 14, 2007, Kanoski &
     Associates terminated Mr. Hess’s employment in bad faith and destroyed his personal files
     and work product, that Mr. Hess added over $1 million in value to Kanoski & Associates’
     cases, that Kanoski & Associates fired him to deprive him of his bonuses, and that Kanoski
     & Associates owed Mr. Hess $316,616.21 in unpaid salary and bonuses.
¶6        According to the complaint, and as substantiated by exhibits, in May 2008, Mr. Hess,
     through his attorney, Mr. Carr, of the Rex Carr Law Firm, where Mr. Hess was then
     employed, sent letters to many of the clients of Kanoski & Associates, including the Loyds,
     “notifying” them that he remained their attorney and was responsible for their files. The
     Loyds sent a return letter to Mr. Carr, which is also attached to the complaint and stated the
     following:
          “I received your letter regarding Mr. Hess. I am writing to inform you that Mr. Hess IS
          NOT responsible for my lawsuit. I have a very competent attorney. Do not contact me
          again regarding this matter.”
¶7        According to the complaint, and as substantiated by exhibits and by the records of this
     court in Loyd v. Billiter, No. 5-09-0065 (Oct. 15, 2010) (unpublished order pursuant to
     Illinois Supreme Court Rule 23 (eff. May 30, 2008)), Mr. Hess, through Mr. Carr, filed a
     notice of attorney lien pursuant to section 1 of the Attorneys Lien Act (770 ILCS 5/1 (West
     2008)), dated May 15, 2008, in the Loyds’ medical malpractice lawsuit. The Loyds filed a
     petition to strike or adjudicate the lien on the basis that they had no contract with Mr. Hess,
     but instead contracted with Kanoski & Associates, which was later amended to include
     Kennith W. Blan, Jr., an affiliated attorney. The petition to strike or adjudicate the lien was
     supported by the relevant contracts.
¶8        Based on the factual allegations outlined above, Mr. Hess, through Mr. Carr, alleged
     causes of action against the Loyds in five counts: (1) breaches of contract, (2) unjust
     enrichment and quantum meruit, (3) breaches of promises, (4) statutory, contractual, and
     equitable liens, and (5) tortious interference with contracts, business expectations, and
     economic advantages. On August 20, 2008, the Loyds filed a motion for judgment on the
     pleadings pursuant to section 2-615(e) of the Code (735 ILCS 5/2-615(e) (West 2008)) and

                                              -3-
       for sanctions pursuant to Illinois Supreme Court Rule 137 (eff. Feb. 1, 1994). On August 28,
       2008, Mr. Hess, through Mr. Carr, filed a motion for leave to file an amended complaint to
       join Kanoski & Associates, Ronald Kanoski, and Kennith W. Blan, Jr., as defendants.
       However, the proposed amended complaint did not add to or change the allegations against
       the Loyds.
¶9         On October 2, 2008, Mr. Carr sent a letter to Mr. Blan offering to dismiss the complaint
       against the Loyds in exchange for $165,312, which represented half of the funds that were
       then in escrow in Loyd v. Billiter, pending adjudication of Mr. Hess’s attorney lien. On
       December 4, 2008, the circuit court conducted a hearing on all pending motions in the instant
       case, and on December 5, 2008, it entered an order granting judgment on the pleadings in
       favor of the Loyds. The circuit court’s order found that Mr. Hess and the Loyds had no
       contract for representation, that the Loyds had hired Kanoski & Associates, not Mr. Hess, to
       represent them, and that the complaint was legally deficient. The circuit court further found
       that Mr. Hess, through Mr. Carr, had instituted the lawsuit against the Loyds to harass them
       and gain an advantage against other parties. The circuit court found that the Loyds were
       entitled to a sanction award pursuant to Illinois Supreme Court Rule 137 (eff. Feb. 1, 1994)
       and ordered the circuit clerk to schedule a hearing to determine the appropriate amount.
       Finally, the circuit court denied Mr. Hess’s motion for leave to amend the complaint, finding
       that there were no different allegations against the Loyds and that the proposed amended
       complaint did not separately state causes of action against the defendants he proposed to add.
¶ 10       On January 29, 2009, the circuit court held a hearing for the purpose of determining an
       appropriate sanctions award. Counsel for the Loyds, who is an associate of Kanoski &
       Associates, submitted an affidavit of attorney fees and costs itemizing the time spent in
       defending the lawsuit, for a total of 37.1 hours. Counsel attested that his practice involves
       hourly and contingent rates and that his usual and customary hourly rate is $250 per hour,
       resulting in attorney fees of $9,275. Counsel also attested to $114.82 in costs associated with
       defending the lawsuit. The Loyds submitted an affidavit attesting to $489.01 in costs for
       missed work and mileage to the hearings. Mr. Hess and Mr. Carr did not file a
       counteraffidavit or put on any evidence at the hearing.
¶ 11       On January 30, 2009, the circuit court entered an order requiring Mr. Hess to pay the
       Loyds the entire amount of fees and costs that were submitted at the hearing, but stated that
       the attorney fees and costs were contingent “upon presentation of a written receipt/cancelled
       check that said sums have been paid by defendants.” On February 17, 2009, Mr. Hess and
       Mr. Carr filed a notice of appeal. On April 17, 2009, this court, on its own motion, entered
       an order holding this appeal in abeyance pending final disposition of the issue of attorney
       fees due to the contingent nature of the circuit court’s order. On September 17, 2009, Mr.
       Hess, through Mr. Carr, filed a motion to vacate or set aside the sanctions and to dismiss with
       prejudice the Loyds’ claim for attorney fees and expenses on the basis that the Loyds had not
       presented a receipt showing that they had paid the attorney fees and costs.
¶ 12       On November 30, 2009, the Loyds filed a motion to partially reconsider the sanctions
       award, arguing that Illinois Supreme Court Rule 137 (eff. Feb. 1, 1994) does not require
       payment of the attorney fees and expenses in order for them to be awarded. The Loyds also
       requested that the sanctions order be modified to specify that both Mr. Hess and Mr. Carr

                                                -4-
       were liable to pay the sanctions. According to the motion to partially reconsider, the Loyds
       were represented on a contingency fee basis and were to pay attorney fees to Kanoski &
       Associates only if they were awarded sanctions. In a supplemental filing, the Loyds produced
       the contingency fee contract reflecting this agreement. After hearing oral argument, the
       circuit court entered an order on March 2, 2010, granting the motion to partially reconsider,
       deleting the requirement that the Loyds produce proof of payment prior to the sanctions
       award, and specifying that Mr. Hess and Mr. Carr were both liable for the sanctions. This
       appeal was subsequently reinstated.
¶ 13       On October 15, 2010, this court issued its decision in Loyd v. Billiter, No. 5-09-0065
       (Oct. 15, 2010) (unpublished order under Supreme Court Rule 23). In that decision, this court
       affirmed the order of the circuit court of Montgomery County which granted the Loyds’
       petition to strike Mr. Hess’s attorney lien claim. Id. at 1. This court found as follows:
                “The record also supports the trial court’s finding that Hess’s employment contract
           with Kanoski & Associates would bar any claim he has for further compensation for his
           work on the Loyd litigation. Under the plain language of the contract, Hess has no
           proprietary right or interest in the representation of plaintiffs.” Id. at 4.
¶ 14       In a separate order in the Loyd v. Billiter appeal, No. 5-09-0065, this court imposed
       sanctions on Mr. Hess and Mr. Carr pursuant to Illinois Supreme Court Rule 375 (eff. Feb.
       1, 1994), noting that “the 4th District Appellate Court previously imposed sanctions against
       [Mr. Hess and Mr. Carr] for appealing the dismissal of an invalid attorney’s lien under the
       same circumstances as the attorney’s lien on appeal in the case at bar” (Goldenhersh, P.J.,
       dissenting). Despite the ruling of this court and the prior sanctions awards, Mr. Hess and Mr.
       Carr chose to continue to prosecute the instant appeal against the Loyds. On February 7,
       2011, the Loyds filed a motion for sanctions on appeal, pursuant to Illinois Supreme Court
       Rule 375 (eff. Feb. 1, 1994), which is taken with the case.

¶ 15                                          ANALYSIS
¶ 16                                1. Judgment on the Pleadings
¶ 17       Mr. Hess argues that the circuit court erred in granting the Loyds a judgment in their
       favor on the pleadings, pursuant to section 2-615(e) of the Code (735 ILCS 5/2-615(e) (West
       2008)). The standard of review for a judgment on the pleadings is de novo. Pekin Insurance
       Co. v. Allstate Insurance Co., 329 Ill. App. 3d 46, 49 (2002). “A motion for judgment on the
       pleadings tests the sufficiency of the pleadings by determining whether the plaintiff is
       entitled to the relief sought by his complaint.” Id. at 49. In so doing, the trial court must
       examine all pleadings on file, taking as true any well-pleaded facts and reasonable inferences
       to be drawn therefrom, to determine whether the controversy may be decided as a matter of
       law. TDC Development Corp. v. First Federal Savings & Loan Ass’n of Ottawa, 204 Ill.
       App. 3d 170, 174 (1990) (citing Walker v. State Board of Elections, 65 Ill. 2d 543, 552-53
       (1976)). “On appeal, the reviewing court must ascertain whether the trial court correctly
       determined that the pleadings presented no issue of material fact and, if there were no such
       issue, whether the court correctly entered the judgment.” Pekin, 329 Ill. App. 3d at 49.
¶ 18       A plaintiff is required to attach to his complaint any written instruments upon which his

                                                -5-
       claim is based, and these are to be treated as part of the complaint itself. Gore v. Indiana
       Insurance Co., 376 Ill. App. 3d 282, 288 (2007) (citing 735 ILCS 5/2-606 (West 2006), and
       Bajwa v. Metropolitan Life Insurance Co., 208 Ill. 2d 414, 431 (2004)). “Where allegations
       made in the body of the complaint conflict with facts disclosed in the exhibits, the exhibits
       will control and the allegations will not be taken as true in evaluating the sufficiency of the
       complaint.” Gore, 376 Ill. App. 3d at 288 (citing Bajwa, 208 Ill. 2d at 431-32).
¶ 19       Here, the exhibits attached to the plaintiff’s complaint disclose that Mr. Hess, and his
       attorney, Mr. Carr, have absolutely no basis on which to proceed against the Loyds for the
       same reasons set forth in our previous order in Loyd v. Billiter, No. 5-09-0065 (Oct. 15,
       2010) (unpublished order under Supreme Court Rule 23). At the time that Mr. Hess worked
       on the Loyds’ medical malpractice case, Mr. Hess was an employee of Kanoski &
       Associates. His employment contract with Kanoski & Associates clearly provides that the
       clients that Mr. Hess worked for on behalf of Kanoski & Associates were the clients of the
       firm and not of the individual associate. The employment contract clearly states that Mr.
       Hess would be paid a salary and a bonus for the work he performed for the clients of the
       firm. The Loyds entered into a written contingency fee agreement with Kanoski &
       Associates, and not with Mr. Hess.
¶ 20       Contrary to the position of Mr. Hess and Mr. Carr before the circuit court and again on
       appeal, a firm may enter into an attorney-client relationship with a client pursuant to the
       terms of Illinois Supreme Court Rule 721 (eff. Sept. 30, 2009). In contrast, Mr. Hess is
       prohibited by the Illinois Rules of Professional Conduct from entering into an oral or implied
       contingency fee contract with a client, as said contracts are required to be in writing. Ill. Rs.
       Prof’l Conduct R. 1.5(c) (eff. Jan. 1, 2010). For all of these reasons, we find that Mr. Hess
       was not entitled to any attorney fees from the Loyds and therefore cannot recover for
       breaches of contract, implied or written, a breach of promise, quantum meruit, or unjust
       enrichment. Additionally, as we found in Loyd v. Billiter, No. 5-09-0065 (Oct. 15, 2010)
       (unpublished order under Supreme Court Rule 23), the Loyds rightfully filed a petition to
       strike Mr. Hess’s attorney lien and are not liable for any statutory, equitable, or contractual
       liens or interference with any contract, business expectation, or economic advantage. The
       circuit court did not err in entering a judgment on the pleadings in favor of the Loyds on all
       counts of the complaint and did not err in denying Mr. Hess, through his attorney Mr. Carr,
       leave to amend the complaint, as the proposed amendment merely added defendants and in
       no way cured the defects in the pleadings against the Loyds.

¶ 21                             2. Sanctions in the Circuit Court
¶ 22       Mr. Hess and Mr. Carr next argue that the circuit court erred in awarding sanctions
       pursuant to Illinois Supreme Court Rule 137 (eff. Feb. 1, 1994). “A circuit court’s decision
       whether to impose Rule 137 sanctions is entitled to considerable deference upon review and
       will not be reversed absent an abuse of discretion.” Spiegel v. Hollywood Towers
       Condominium Ass’n, 283 Ill. App. 3d 992, 1001 (1996). “A circuit court exceeds its
       discretion only where no reasonable person would take the view adopted by it.” Id. Rule 137
       provides, in pertinent part, as follows:


                                                 -6-
           “The signature of an attorney or party constitutes a certificate by him that he has read the
           pleading, motion or other paper; 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 is not interposed for any improper purpose, such as to harass or to cause
           unnecessary delay or needless increase in the cost of litigation. *** If a pleading, motion,
           or other paper is signed in violation of this rule, the court, upon motion or upon its own
           initiative, may impose upon the person who signed it, a represented party, or both, 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.” Ill. S. Ct. R. 137 (eff. Feb. 1, 1994).
¶ 23       For the reasons set forth above, we find that the circuit court’s findings, that the
       complaint in its entirety was not warranted by existing law and was interposed for an
       improper purpose, were not an abuse of discretion. We find the conduct of Mr. Hess, through
       his attorney, Mr. Carr, in suing a client of his former law firm for unpaid legal fees and
       tortious conduct for contesting his attorney lien when his employment contract clearly stated
       the firm’s clients were not his clients and he was to be paid for his services by salary,
       amounts to egregious, bad-faith, and harassing pleading, and it was well within the circuit
       court’s discretion to impose sanctions.
¶ 24       Mr. Hess, through Mr. Carr, argues that the circuit court erred in awarding attorney fees
       as a sanction because the Loyds are not obligated to pay attorney fees to their attorney and
       thus cannot be said to have “incurred” such fees. We find this argument to be without merit.
       The Loyds presented the circuit court with the affidavit of their counsel showing the amount
       of time counsel spent defending this lawsuit and his usual and customary hourly rate. The
       Loyds also presented the contract whereby their counsel, who represented them in the
       medical malpractice action, agreed to defend the lawsuit instituted against them by its former
       employee on a contingency basis, where the Loyds would be liable for attorney fees and costs
       only in the event that sanctions were awarded. We find that this arrangement was appropriate
       under the circumstances of this case and that reversing the attorney fee sanctions award under
       these circumstances would discourage law firms from defending their clients in egregious
       situations such as this. Moreover, this court has previously affirmed an attorney fee sanction
       award in a case where the party receiving sanctions was represented on a contingency basis.
       See Cretton v. Protestant Memorial Medical Center, Inc., 371 Ill. App. 3d 841, 868-69
       (2007). We find that the Loyds “incurred” fees for purposes of Rule 137.
¶ 25       Mr. Hess, through Mr. Carr, further argues that the circuit court erred in imposing the
       sanctions award against Mr. Hess, who did not sign the sanctionable pleadings. This
       argument is also wholly without merit, as Illinois Supreme Court Rule 137 (eff. Feb. 1, 1994)
       clearly states that sanctions can be imposed against the attorney who signed the pleading, the
       represented party, or both. In a case such as this, where the represented party is also an
       attorney, we find it perfectly reasonable to impose the sanction against both Mr. Hess and
       Mr. Carr. The circuit court did not abuse its discretion in doing so.
¶ 26       Finally, Mr. Hess, through Mr. Carr, argues that the circuit court erred in failing to hold
       an evidentiary hearing on the issue of sanctions. We disagree. A hearing is necessary for a

                                                 -7-
       trial court to determine if any untrue statement within a pleading was made without
       reasonable cause, unless the court’s determination can be made on the basis of the pleadings
       or trial evidence. Century Road Builders, Inc. v. City of Palos Heights, 283 Ill. App. 3d 527,
       531 (1996). Although an evidentiary hearing should always be held when a sanction award
       is based upon a pleading filed for an improper purpose, a hearing is unnecessary if the
       sanction award is due to the unreasonable nature of the pleading based on an objective
       standard. Id. Furthermore, although an evidentiary hearing on the reasonableness of any fees
       to be awarded is usually required because the issue of reasonableness is a matter of proof
       which should be subject to cross-examination, the circuit court’s acceptance of unrebutted
       affidavits of counsel as to fees, in the absence of an evidentiary hearing, is within its
       discretion. Id.; cf. Heritage Pullman Bank & Trust Co. v. Carr, 283 Ill. App. 3d 472, 481
       (1996).
¶ 27        Here, although the circuit court found that the complaint was filed for an improper
       purpose, it is also clear from the face of the pleadings that the complaint had no basis in law
       and, as such, was unreasonable under an objective standard. An evidentiary hearing was not
       necessary to make this determination. In addition, Mr. Carr had the opportunity to put on
       evidence as to the reasonableness of the amount of fees at the hearing held on January 29,
       2009, and chose not to do so. The circuit court did not err in accepting the unrebutted
       affidavit of fees from the Loyds. For all of these reasons, we affirm the circuit court’s
       sanction award in its entirety.

¶ 28                                   3. Sanctions on Appeal
¶ 29       We now address the Loyds’ motion for sanctions on appeal pursuant to Illinois Supreme
       Court Rule 375 (eff. Feb. 1, 1994), which was filed on February 7, 2011, and taken with the
       case. We grant the motion for sanctions, for all of the reasons noted above. We remand this
       case for the circuit court to determine the amount of sanctions on appeal.

¶ 30                                     CONCLUSION
¶ 31       For the foregoing reasons, we affirm the December 5, 2008, order of the circuit court of
       Montgomery County which granted judgment on the pleadings in favor of the Loyds. We
       affirm the January 30, 2009, order of the circuit court of Montgomery County, as amended
       by an order dated March 2, 2010, which awarded sanctions to the Loyds, ordering Mr. Hess
       and Mr. Carr to pay the Loyds a total of $9,873.83 for attorney fees and costs. Finally, we
       grant the Loyds’ motion for sanctions on appeal and remand for the circuit court to determine
       the amount of sanctions on appeal.

¶ 32      Affirmed; motion to supplement the record on appeal denied; motion for sanctions on
       appeal granted; cause remanded.

¶ 33      JUSTICE GOLDENHERSH, concurring in part and dissenting in part:
¶ 34      I concur with my colleagues concerning the substantive issues in this appeal. As to their

                                                 -8-
       disposition on sanctions, I respectfully dissent.
¶ 35        I note initially that in my opinion the record does not sustain the circuit court’s findings
       that the complaint was not warranted by existing law, but rather was interposed for an
       improper purpose. We all recognize the broad discretion the circuit court possesses in
       determining such questions and the judge’s hard and lonely position, and my conclusion is
       in no way a criticism of a long-serving distinguished and exemplary jurist. My chief concern
       is a weightier issue.
¶ 36        Disagreeing with an advocate’s argument does not equate with the conclusion that the
       advocate’s position was not “well grounded in fact and is warranted by existing law or a
       good-faith argument for the extension, modification, or reversal of existing law” (Ill. S. Ct.
       R. 137 (eff. Feb. 1, 1994)). The history of the common law is replete with initially unpopular
       and rejected positions. The common law’s most important jurisprudential philosophers
       recognized the inherent evolutionary nature of the common law; among others, consider
       Blackstone, Story, Holmes, and Brandeis. The alternative is the dead hand of archaic
       precedents and rules so rightly ridiculed by Dickens. It is appropriate that we disagree; it is
       error to send a message that inhibits growth of our common law tradition.
¶ 37        For the reasons stated above, I respectfully dissent from my colleagues on the issue of
       sanctions.




                                                 -9-
