Amadeo v. Gaynor

No. 2--98--0031



IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

SALLY AMADEO, ) Appeal from the Circuit Court
) of Du Page County.
Plaintiff, )
)
v. ) No. 95--L--319
)
TIM P. GAYNOR, )
)
Defendant and Third-Party )
Plaintiff )
)
(Mary Anne Pelini, Third-Party )
Defendant-Appellee; Parrillo, ) Honorable
Weiss, and O'Halloran, ) Edward R. Duncan, Jr.,
Appellant). ) Judge, Presiding.

PRESIDING JUSTICE GEIGER delivered the opinion of the court:
The appellant, the law firm of Parrillo, Weiss & O'Halloran
(Parrillo, Weiss), appeals from the December 5, 1997, order of the
circuit court of Du Page County imposing Supreme Court Rule 137
(155 Ill. 2d R. 137) sanctions in the amount of $5,303.48. On
appeal, Parrillo, Weiss contends that (1) the award of sanctions
was an abuse of the trial court's discretion; and (2) the trial
court erred in failing to hold an evidentiary hearing to determine
the appropriate sanction amount. We affirm the trial court's order
and impose additional sanctions on appeal pursuant to Supreme Court
Rule 375(b) (155 Ill. 2d R. 375(b)).
The facts relevant to the disposition of this appeal are as
follows. On February 24, 1995, the plaintiff, Sally Amadeo, filed

a complaint against Tim Gaynor and Mary Anne Pelini, alleging that
she was injured in an April 13, 1994, traffic accident. At the
time of the accident, the plaintiff was riding as a passenger in a
vehicle being driven by Pelini. The accident occurred when
Pelini's vehicle was struck from behind by a vehicle being driven
by Gaynor. On May 17, 1995, the plaintiff voluntarily dismissed
her action as to Pelini.
On July 14, 1995, Parrillo, Weiss filed an appearance and
answer to the plaintiff's complaint on behalf of Gaynor. On that
same date, Parrillo, Weiss also filed a cross claim for
contribution against Pelini, even though Pelini had already been
dismissed. The cross claim alleged that Pelini negligently (1)
failed to keep a proper lookout; (2) failed to give a proper
warning to any vehicle involved in the collision; and (3) slowed
and/or stopped her vehicle suddenly without proper warning.
On November 7, 1995, the trial court entered an order
permitting the cross claim to stand as Gaynor's third-party
complaint for contribution against Pelini. On May 10, 1996,
following receipt of service, Pelini filed an answer to the third-
party complaint for contribution.
On October 11, 1996, Pelini filed a motion for summary
judgment on Gaynor's third-party complaint. In support of her
motion, Pelini relied upon her own deposition testimony as well as
the deposition testimony of the plaintiff and Gaynor. Such
testimony revealed that, immediately prior to the accident,
Pelini's vehicle was stopped at a red light and that Gaynor had
stopped his vehicle immediately behind her. While the light was
still red, Gaynor observed Pelini check the traffic to determine if
she could turn right on red. Gaynor observed Pelini start to pull
her vehicle forward. Gaynor then looked to his left to check for
traffic. As Gaynor was looking to his left, he rolled into
Pelini's vehicle. Pelini testified that she had stopped her
vehicle because the light was still red and because there was
oncoming traffic. Gaynor could not recall whether there was
oncoming traffic.
Pelini argued that, pursuant to section 11--306(c)(3) of the
Illinois Vehicle Code (625 ILCS 5/11--306(c)(3) (West 1996)), she
was expressly required to stop her vehicle when facing a steady red
light at a controlled intersection. Pelini argued that, because
her actions were in accordance with the mandate of the law, she
could not have been negligent as a matter of law. Rather, she
contended that the sole cause of the accident was Gaynor's failure
to keep a safe lookout to avoid colliding with her vehicle. On
December 5, 1996, in light of the pending motion for summary
judgment, Gaynor agreed to voluntarily dismiss the third-party
complaint with prejudice.
On January 3, 1997, Pelini filed a motion for sanctions
against Parrillo, Weiss pursuant to Supreme Court Rule 137. Pelini
argued that the third-party complaint was frivolous and not
warranted by existing law. Pelini requested that sanctions be
awarded to her in order to cover her costs, fees, and expenses
incurred in defending the action. Attached to her motion, Pelini
provided her attorney's affidavit and copies of billing statements
detailing her legal expenses.
On December 5, 1997, the trial court held an evidentiary
hearing on Pelini's motion for sanctions. At the hearing, Cheryl
Fleming testified that she was the attorney from Parrillo, Weiss
who prepared and filed the third-party complaint on behalf of
Gaynor. Fleming testified that, in drafting the pleading, she
relied upon a telephone conversation she had with Gaynor on June
23, 1995. During this conversation, Gaynor told Fleming that the
accident occurred as follows: (1) Gaynor was stopped behind Pelini
at a red light; (2) Pelini started to make a right turn during the
red light; (3) Pelini stopped suddenly; and (4) there appeared to
be no traffic or other reason that would require Pelini to suddenly
stop.
Fleming testified that, in drafting the third-party complaint,
she also relied on a written statement given by Gaynor to his
insurance company on October 5, 1994. In this statement, Gaynor
explained that the accident occurred when Pelini started to make a
right turn on red and then suddenly stopped. The statement also
contained a diagram showing that, at the time of the collision,
Pelini's vehicle had started to enter the intersection. Fleming
testified that the police report contained no description of how
the accident occurred and listed no witnesses.
During the hearing, the trial court asked Fleming whether she
was aware of any case law that supported the allegations contained
in the third-party complaint. Fleming stated that she was
unprepared for such an inquiry and would be unable to provide any
cases without going to the library. Fleming also stated that, at
the time she filed the complaint, she was not aware that the
plaintiff had dismissed Pelini as a defendant.
At the close of the hearing, the trial court granted Pelini's
motion for sanctions. Specifically, the trial court found that
there was an inadequate legal investigation of the facts known to
Fleming at the time she filed the third-party complaint and that
there was no legal basis for the allegations contained therein.
After granting the motion, the trial court permitted Parrillo,
Weiss the opportunity to contest the costs, fees, and expenses
being claimed by Pelini. Parrillo, Weiss expressly deferred to the
trial court's judgment in determining whether the hourly fee
charged by Pelini's counsel was reasonable. However, Parrillo,
Weiss contested numerous time entries contained in the billing
statements attached to the motion. After listening to the
objections, the trial court determined that the fees charged, with
the exception of one-quarter hour, were reasonable. The trial
court therefore awarded Pelini sanctions totaling $5,303.48 in
costs, fees, and expenses. Parrillo, Weiss filed a timely notice
of appeal.
Supreme Court Rule 137 dictates that litigants and attorneys
have an affirmative duty to conduct an inquiry of the facts and the
law prior to filing an action, pleading, or other paper. North
Shore Sign Co. v. Signature Design Group, Inc., 237 Ill. App. 3d
782, 789 (1992). The rule requires that a party or litigant sign
pleadings and other legal papers to certify that he or she has read
the document, has made a reasonable inquiry into its basis, and
believes that it is well grounded in fact and in 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. 155 Ill. 2d R. 137.
A violation of the rule may subject a party, its attorney, or
both to an appropriate sanction, including the award of reasonable
attorney fees to the opposing party. Beno v. McNew, 186 Ill. App.
3d 359, 365 (1989). The purpose of the rule is to prevent a
litigant from abusing the judicial process by penalizing the party
who brings a vexatious or harassing action without a sufficient
legal or factual foundation. Beno, 186 Ill. App. 3d at 365.
Because the rule is penal in nature, it must be strictly construed.
In re Estate of Wernick, 127 Ill. 2d 61, 77 (1989).
The trial court's decision to sanction a party under Supreme
Court Rule 137 will not be reversed on appeal absent an abuse of
discretion. North Shore Sign, 237 Ill. App. 3d at 790. Such an
abuse of discretion occurs only where no reasonable person would
take the view adopted by the trial court. Senese v. Climatemp,
Inc., 289 Ill. App. 3d 570, 582 (1997).
Although Parrillo, Weiss has devoted much time in its
appellate brief to detailing its prefiling investigation, we
believe that the crux of the trial court's ruling was that the
allegations contained in the third-party complaint were without
legal basis. As noted above, the third-party complaint alleged
that Pelini negligently (1) failed to keep a proper lookout; (2)
failed to give a proper warning to any vehicle involved in the
collision; and (3) stopped her vehicle suddenly without proper
warning.
Based upon our research, we believe that the trial court
correctly determined that these allegations were without legal
basis. We are aware of no case imposing a duty upon the driver of
a car that is stopped at a red light to keep a lookout for vehicles
approaching from the rear. Nor are we aware of any statute or
common-law duty that requires the driver of a car to give warning
to vehicles approaching from behind, other than to have his
taillights in proper working order. Indeed, none of the cases
relied on by Parrillo, Weiss specifically impose a duty to warn or
to keep a lookout for vehicles approaching from the rear. See,
e.g., Craigmiles v. Egan, 248 Ill. App. 3d 911, 919 (1993);
Freeman v. Chicago Transit Authority, 50 Ill. App. 2d 125, 134
(1964); Cook v. Boothman, 24 Ill. App. 2d 552, 558 (1960).
As Parrillo, Weiss correctly notes, a rear driver is not
necessarily negligent in all rear-end collisions. See Craigmiles,
248 Ill. App. 3d at 919. Rather, the front driver may be negligent
where he stops suddenly without cause. See Cook, 24 Ill. App. 2d
at 555, 558-59 (plaintiff was struck from behind when she suddenly
stopped 150 feet beyond a stop sign); Freeman, 50 Ill. App. 2d at
134 (plaintiff was struck from behind when he stopped in an
intersection when traffic signal turned yellow). The courts in
these cases refused to find the rear driver negligent as a matter
of law, noting the existence of circumstances from which a jury
could find that the plaintiff was also negligent.
Unlike these cases, however, the circumstances herein
demonstrate that, immediately prior to the collision, Pelini's
vehicle was stopped at an intersection controlled by a red light.
As correctly noted by the trial court, Pelini was required by law
to stop her vehicle prior to making a right turn on a red light.
Section 11--306(c)(3) of the Illinois Vehicle Code provides, in
relevant part:
"Except when a sign is in place prohibiting a turn ***,
vehicular traffic facing any steady red signal may cautiously
enter the intersection to turn right ***, after stopping as
required by *** this Section. After stopping, the driver
shall yield the right of way to any vehicle in the
intersection or approaching on another roadway so closely as
to constitute an immediate hazard during the time such driver
is moving across or within the intersection or junction or
roadways." 625 ILCS 5/11--306(c)(3) (West 1996).
Based on the information available to Parrillo, Weiss at the
time it filed the third-party complaint, Pelini's conduct was
clearly in conformity with these statutory requirements. In both
his written statement and in his telephone conversation with
Parrillo, Weiss attorney Cheryl Fleming, Gaynor stated that Pelini
stopped for the red light, pulled forward slightly in an attempt to
make a right turn, and stopped again. Such actions indicate that
Pelini "cautiously" entered the intersection after first stopping
for a red light as required by section 11--306. Pelini was then
required to stop her vehicle a second time in order to yield the
right-of-way to other traffic approaching the intersection. Under
these circumstances, we agree with the trial court that the
allegations against Pelini were without legal foundation. See Zaeh
v. Huenke, 70 Ill. App. 3d 39, 41 (1979).
Indeed, Parrillo, Weiss has been unable to cite a single
authority directly supporting its characterizations of Pelini's
conduct as "a sudden stop." Although Parrillo, Weiss relies on
those authorities detailed above, we believe that these cases are
distinguishable because they do not involve the factual
circumstances presented herein. See Nolan v. Elliot, 179 Ill. App.
3d 1077, 1082-83 (1989) (plaintiff was struck by an ambulance when
she proceeded through an intersection on a green light); Tatum v.
Rooker, 69 Ill. App. 2d 6, 8, 11 (1966) (vehicle struck from behind
after suddenly stopping in the middle of the street and because its
taillights were not illuminated); Freeman, 50 Ill. App. 2d at 134;
Cook, 24 Ill. App. 2d at 555. We note that, under section 11--306,
Pelini was under no obligation to move her vehicle while the
traffic signal was red. Once she decided to attempt to turn right,
however, she clearly was under a duty to yield the right-of-way to
those vehicles passing through the intersection. See 625 ILCS
5/11--306(c)(3) (West 1996). We fail to understand how Pelini's
decision to stop a second time could be construed as negligent.
See Zaeh, 70 Ill. App. 3d at 41.
In so ruling, we cannot help but note the parallels between
this case and the situation presented in Kellett v. Roberts, 276
Ill. App. 3d 164 (1995). In Kellett, this court affirmed the
imposition of Rule 137 sanctions against Parrillo, Weiss for filing
a speculative and baseless third-party complaint against the driver
of a vehicle that was struck from behind. Kellett, 276 Ill. App.
3d at 173. As in this case, the plaintiff in Kellett was a
passenger riding in the front car. Kellett, 276 Ill. App. 3d at
166. Immediately prior to the accident, the vehicles were stopped
in a line of traffic waiting at a red traffic signal. Kellett, 276
Ill. App. 3d at 166. When the light turned green, the line of
vehicles initially started to move but then stopped again.
Kellett, 276 Ill. App. 3d at 166. The defendant was unable to stop
his vehicle in time and struck the vehicle in which the plaintiff
was riding. Kellett, 276 Ill. App. 3d at 166-67. Parrillo, Weiss
represented the defendant driver and filed a third-party complaint
against the other driver. Kellett, 276 Ill. App. 3d at 166.
As in the instant case, Parrillo, Weiss alleged that the
driver of the front vehicle failed to keep a proper lookout, failed
to give a proper warning, and made a sudden stop. Kellett, 276
Ill. App. 3d at 166, 169. Although Parrillo, Weiss did not speak
to the defendant prior to filing the pleading, it did rely on a
written statement made by the defendant to his insurance company.
Kellett, 276 Ill. App. 3d at 168-69. The trial court imposed Rule
137 sanctions against Parrillo, Weiss, finding that it did not
conduct a reasonable inquiry into the facts of the accident and
that the allegations of the complaint were baseless and unsupported
by the defendant's deposition testimony. Kellett, 276 Ill. App. 3d
at 168.
On appeal, we agreed with the trial court that Parrillo, Weiss
had failed to conduct a reasonable investigation prior to filing
the third-party complaint. Kellett, 276 Ill. App. 3d at 173.
Additionally, we noted that the circumstances surrounding the
collision did not support any allegations of negligence against the
driver of the vehicle in which the plaintiff was riding. Kellett,
276 Ill. App. 3d at 173. Specifically, we noted that there was no
evidence that the driver failed to keep a proper lookout or failed
to give a proper warning. Kellett, 276 Ill. App. 3d at 173.
Rather, we concluded that the allegations of negligence were "sheer
speculation." Kellett, 276 Ill. App. 3d at 173.
Although Kellett did not involve a right turn at a red light,
we nonetheless find the circumstances in Kellett to be very similar
to those presented in the instant case. As in Kellett, there is no
evidence herein to substantiate the allegations of negligence
contained in the third-party complaint. Although attorney Fleming
may have consulted with Gaynor prior to filing the pleading,
Parrillo, Weiss has failed to demonstrate how that consultation
provided a reasonable factual basis to support its pleading.
Rather, for the reasons already discussed, we believe that the
allegations contained in the third-party complaint were speculative
and without legal basis and that the trial court did not abuse its
discretion in imposing Rule 137 sanctions.
Parrillo, Weiss also contends that the trial court erred in
failing to hold a hearing in order to determine the appropriate
amount of sanctions. We believe that this argument is also without
merit. As detailed above, Pelini submitted an affidavit detailing
the attorney fees incurred in defending the third-party complaint.
Parrillo, Weiss was then given the opportunity to contest the
reasonableness of the hourly fee and the itemized time charges.
Parrillo, Weiss objected to many of the itemized expenses and was
permitted to contest the reasonableness of these fees. The record
reveals that the trial court considered these objections and ruled
on the reasonableness of the fees line by line. Moreover, we note
that when Parrillo, Weiss was given the opportunity to contest the
hourly attorney fee alleged, it expressly deferred to the trial
court's judgment. We therefore believe that Parrillo, Weiss was
given a sufficient opportunity to be heard on the appropriate
amount of sanctions. See Kellett, 276 Ill. App. 3d at 175 (formal
evidentiary hearing on the amount of sanctions not required where
movant supplies legally sufficient affidavit and detailed time
sheet and the respondent is not denied the opportunity to present
evidence).
Parrillo, Weiss also contends that the trial court erred when
it denied its request to call a witness to testify as to the
reasonableness of the attorney fees sought. The record reveals
that the trial court did not permit this witness to testify because
the testimony was offered while the trial court was still
considering the merits of the petition for sanctions. However, the
trial court did not bar Parrillo, Weiss from calling the witness at
a more appropriate time later in the hearing. Indeed, the record
reveals that Parrillo, Weiss did not renew its request to recall
the witness when the trial court was considering the appropriate
amount of sanctions. We believe that Parrillo, Weiss's failure to
resubmit this witness was tantamount to waiver. See Kellett, 276
Ill. App. 3d at 174. We therefore find no error in the manner in
which the trial court determined the appropriate amount of
sanctions and decline to disturb the award.
Finally, Pelini requests that we impose Supreme Court Rule 375
sanctions (155 Ill. 2d R. 375) against Parrillo, Weiss for filing
a frivolous and a bad-faith appeal. An appeal will be deemed
"frivolous" where it is not reasonably well grounded in fact and
not warranted by existing law or a good-faith argument for the
extension, modification or reversal of existing law, or if a
reasonable and prudent attorney would not have brought the appeal.
First Federal Savings Bank of Proviso Township v. Drovers National
Bank of Chicago, 237 Ill. App. 3d 340, 344 (1992). Sanctions for
taking a frivolous appeal are penal in nature and should only be
imposed in the most egregious of circumstances. Janisco v.
Kozloski, 261 Ill. App. 3d 963, 968 (1994).
Although we generally hesitate to impose Rule 375 sanctions
for fear of hindering a party's right to appeal, we believe the
imposition of sanctions is appropriate in the instant case. As
detailed above, Parrillo, Weiss filed its third-party complaint
without any legitimate supporting factual or legal basis. During
the hearing on sanctions before the trial court, Parrillo, Weiss
attorney Fleming was unable to cite a single case in support of her
negligence theory against Pelini. Moreover, on appeal, Parrillo,
Weiss also has been unable to offer any authority in direct support
of its legal theories. Nor has Parrillo, Weiss offered any good-
faith argument for the extension, modification, or reversal of
existing law. We therefore believe that the instant appeal is not
well grounded in fact or law and would not have been filed by a
reasonable and prudent attorney.
Perhaps most troubling is the fact that this is the second
occasion on which Parrillo, Weiss has appeared before this court
after filing a frivolous third-party complaint in a case involving
a rear-end collision at an intersection controlled by a red light.
As detailed above, Kellett presented factual circumstances quite
similar to those at issue herein. In that case, we held that such
circumstances were insufficient to support allegations of
negligence against the driver of the vehicle that was struck from
behind. Kellett, 276 Ill. App. 3d at 173. As these precise issues
have already been addressed by this court, we are troubled by
Parrillo, Weiss's insistence to revisit these issues at Pelini's
expense. Indeed, we note that Parrillo, Weiss's appellate counsel
herein is the same individual who prosecuted the appeal on its
behalf in Kellett. Based on the foregoing, we can only conclude
that the instant appeal is frivolous.
For all of these reasons, Pelini's motion for Rule 375
sanctions is granted. Pelini's attorneys have filed an affidavit
and a detailed statement of expenses and attorney fees incurred as
a result of defending this appeal. These expenses total $5,353.42.
We have reviewed these materials, as well as Parrillo, Weiss's
response, and believe that the fees alleged in the motion and its
exhibits are reasonable. We therefore enter judgment in favor of
Pelini, and against Parrillo, Weiss, in the amount of $5,353.42.
This judgment is in addition to the $5,303.48 judgment already
awarded to Pelini by the trial court.
For the foregoing reasons, we affirm the judgment of the
circuit court of Du Page County, and we impose Supreme Court Rule
375 sanctions against Parrillo, Weiss in the amount of $5,353.42.
Affirmed; sanctions imposed.
RAPP, J., concurs.
BOWMAN, J., dissenting.
I respectfully dissent. I am concerned with the practical
implications of this decision, and I believe that the imposition of
sanctions in this case will have a chilling effect on the practice
of law. I cannot agree with the majority's conclusion that the
trial court properly imposed sanctions against Parrillo, Weiss
because I believe that the third-party complaint was well grounded
in both law and fact. I also disagree with the majority's
imposition of additional sanctions.
The majority states that the "crux of the trial court's ruling
was that the allegations contained in the third-party complaint
were without legal basis." Slip op. at 6. While I may agree with
the majority's conclusion that there is not a duty to warn or keep
a lookout for vehicles approaching from behind, I cannot agree that
the remaining allegations in the third-party complaint lacked a
sufficient legal basis. In addition to alleging that Pelini did
not keep a proper lookout and that Pelini stopped without warning,
the third-party complaint also alleged that Pelini failed to
exercise reasonable care in operating her vehicle. It is well
settled in Illinois that the driver of a motor vehicle does have a
duty to exercise reasonable care in operating her vehicle to avoid
a collision. Moran v. Gatz, 390 Ill. 478, 481 (1945). In light of
this long-standing rule, I believe that the allegation that Pelini
failed to exercise reasonable care in operating her vehicle serves
as a sufficient legal basis.
I also believe that the trial court abused its discretion in
finding that there was an inadequate legal investigation of the
facts. In drafting the third-party complaint, Fleming relied on a
telephone conversation with Gaynor in which Gaynor told Fleming
that Pelini stopped suddenly and that there was no traffic or other
reason for the stop. Fleming also relied on the written statement
that Gaynor submitted to his insurance company. In the written
statement, Gaynor recounted that after Pelini started to make a
right turn she suddenly stopped. Moreover, the diagram attached to
the written statement depicted that Pelini's car started to enter
the intersection. According to Fleming, the police report
included neither a description of the events precipitating the
accident nor a list of witnesses. Also, plaintiff named Pelini as
a defendant in the original complaint, and Fleming was not aware
that Pelini had been dismissed as a defendant at the time that she
filed the third-party complaint. In light of this evidence, I
believe that Fleming had sufficiently investigated the facts prior
to filing the third-party complaint and that her actions were
reasonable under the circumstances. See Jurgensen v. Haslinger,
295 Ill. App. 3d 139, 143 (1998) (a party's conduct must be
reasonable at the time of filing).
Given that there was no evidence before the trial court to
suggest that Parillo, Weiss filed the third-party complaint for
vexatious or harassing purposes and that the third-party complaint
was both legally and factually sufficient, I would reverse the
trial court's imposition of sanctions. For the same reasons, I
disagree with the majority's decision to impose additional
sanctions pursuant to Supreme Court Rule 375.