Jurgensen v. Haslinger

No. 3--97--0303
_________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 1998

VIRGINIA JURGENSEN and ) Appeal from the Circuit Court
JEFFREY LAVIOLETTE, ) for the 12th Judicial Circuit
) Will County, Illinois
Plaintiffs-Appellants, )
)
v. )
) No. 96--L--1406
BRUNO J. HASLINGER and )
ROBERTA G. HASLINGER, )
)
Defendants-Appellees. )
)
) Honorable
(EUGENE J. KORST, ) William G. McMenamin
Respondent-Appellant). ) Judge, Presiding
___________________________________________________________________

JUSTICE LYTTON delivered the opinion of the court:
___________________________________________________________________

Plaintiffs Virginia Jurgensen and Jeffrey Laviolette filed
suit for tortious interference with an expectancy under a will
against defendants Bruno and Roberta Haslinger, who were witnesses
to a will. The trial judge dismissed the case finding that
defendants were absolutely immune from suit for statements made as
witnesses in a judicial proceeding. Pursuant to Supreme Court Rule
137 (134 Ill. 2d R. 137), the trial judge imposed sanctions against
plaintiffs' attorney, Eugene J. Korst, who signed and filed the
complaint. We hold that the trial court properly dismissed the
complaint and imposed sanctions, but erred in calculating the
amount of the sanctions.

FACTS
Plaintiffs filed a complaint alleging that their rights as
beneficiaries were violated when, at a will contest hearing,
defendants falsely testified that the testator's signature was not
on the will at the time they signed it. In response to the
complaint, defendants filed a motion to dismiss pursuant to section
2--615 of the Illinois Code of Civil Procedure (735 ILCS 5/2--615
(West 1996)), contending that the complaint failed to state a cause
of action. The trial judge granted defendant's motion. Plaintiffs
filed a motion to reconsider, asserting that the section 2--615
motion failed to specify wherein the complaint was insufficient.
The trial judge granted the motion to reconsider, vacated his May
6 order, denied the section 2--615 motion, and granted leave for
defendants to file a motion to dismiss pursuant to section 2--619
of the Illinois Code of Civil Procedure. 735 ILCS 5/2--619 (West
1996).
Defendants' section 2--619 motion cited Briscoe v. Lahue, 460 U.S. 325, 330-31, 75 L. Ed. 2d 96, 105, 103 S. Ct. 1108, ____
(1983), in support of their claim of absolute immunity for
testimony given as witnesses in a judicial proceeding. The trial
court granted defendants' section 2--619 motion. After defendants
requested the imposition of sanctions, plaintiffs pursued a series
of unsuccessful motions to reconsider and petitions for
substitution of judge. Ultimately, the trial court imposed
sanctions against attorney Korst in the amount of $16,200.
On appeal, plaintiffs and Korst contend (a) the trial court
erred in dismissing the complaint on the basis that defendants were
absolutely immune from suit in their capacity as witnesses, (b) the
trial court erred in denying defendants' motions for substitution
of judge, (c) the trial judge erred in imposing sanctions, and (d)
the trial court erred in determining the amount of the sanctions.
I. ABSOLUTE PRIVILEGE
Plaintiff's complaint alleges that defendants' tortious
conduct consisted of testifying falsely at a will contest hearing
conducted in the circuit court of Will County, Illinois.
The doctrine of absolute privilege from civil suit for
statements made in judicial proceedings has been described by the
U.S. Supreme Court as "well established" (Briscoe v. Lahue, 460 U.S. 325, 330-31, 75 L. Ed. 2d 96, 105, 103 S. Ct. 1108, ____
(1983), citing Cutler v. Dixon, 4 Co. Rep. 14b, 76 Eng. Rep. 886
(QB 1585)) and as a tradition "well grounded in history and reason"
(Briscoe, 460 U.S. at 334, 75 L. Ed. 2d at 107, 103 S. Ct. at
____). As early as 1870, the Illinois supreme court declared that
in a legal proceeding, "[W]hatever is said...in such proceeding,
pertinent and material to the matter in controversy, is privileged,
and no action can be maintained upon it." Spaids v. Barrett, 57 Ill. 289 (1870). The applicability of the privilege in judicial
and quasi-judicial proceedings was recently discussed by this court
in Bushell v. Caterpillar, Inc., 291 Ill. App. 3d 559, 683 N.E.2d 1286 (1997).
The doctrine of absolute privilege rests upon the idea that
conduct which otherwise would be actionable is permitted to escape
liability because the defendant is acting in furtherance of some
interest of social importance, which is entitled to protection even
at the expense of uncompensated harm to an injured party. Thomas
v. Petrulis, 125 Ill. App. 3d 415, 418, 465 N.E.2d 1059, 1061
(1984), citing W. Prosser, Torts  114, at 776 (4th ed. 1971).
Absolute privilege provides complete immunity from civil action,
even though the statements are made with malice, because public
policy favors the free and unhindered flow of information. Ringier
America v. Enviro-Technics, Ltd., 284 Ill. App. 3d 1102, 1105, 673 N.E.2d 444, 446 (1996); Starnes v. International Harvester Co., 184
Ill. App. 3d 199, 203, 539 N.E.2d 1372, 1374 (1989). In the
absence of such a privilege, a witness might be reluctant to come
forward to testify, or, once on the stand, the witness's testimony
might be distorted by the fear of subsequent liability. Briscoe,
460 U.S. at 333, 75 L. Ed. 2d at 106, 103 S. Ct. at ___.
Nonetheless, defendants argue that extending absolute
privilege to defendants would effectively constitute the condoning
of fraud and a denial of plaintiffs' right to pursue its tortuous
interference claim. We do not find this argument to be persuasive.
The very essence of plaintiffs' complaint is that they were damaged
because a factfinder in another case believed the defendants and
rendered a verdict detrimental to the plaintiffs' claims as
putative beneficiaries under the will. We are reminded of the
Supreme Court's admonishment in Butz v. Economou, 438 U.S. 478,
512, 57 L. Ed. 2d 895, 919, 98 S. Ct. 2894, ____ (1978), quoted
with favor in Briscoe, 460 U.S. at 335, 75 L. Ed. 2d at 108, 103 S.
Ct. at ____:
"controversies sufficiently intense to erupt in
litigation are not easily capped by a judicial decree.
The loser in one forum will frequently seek another * *
*. Absolute immunity is thus necessary to assure that
judges, advocates, and witnesses can perform their
respective functions without harassment or intimidation."
We decline defendants' invitation to carve an "attesting witness"
exception into the well-established doctrine of absolute privilege
for testimony given in a judicial proceeding.[fn1]
II. SUBSTITUTION OF JUDGE
After the trial judge granted defendants' section 2--619
motion (735 ILCS 5/2--619 (West 1996)), plaintiffs filed two
motions to disqualify the judge for cause (735 ILCS 5/2--1001(a)(3)
(West 1996)). Both of these motions were denied. On appeal,
defendants assert that their motions should have been granted.
It is axiomatic that the appellant has the duty to provide an
adequate record for the appellate court. Higgins v. Columbia Tool
Steel Co., 76 Ill. App. 3d 769, 776, 395 N.E.2d 149, 154 (1979).
If the record provided does not constitute an adequate basis for a
determination of the propriety of the circuit court's judgment,
then the judgment is presumed correct and the circuit court must be
affirmed. Jackson v. Naffah, 241 Ill. App. 3d 1043, 1045, 609 N.E.2d 958, 960 (1993). Here, appellants have failed to provide
this court with the report of proceedings on the motions to
disqualify. Accordingly, the issue has been waived. Teitelbaum v.
Reliable Welding Co., 106 Ill. App. 3d 651, 661, 435 N.E.2d 852,
860 (1982).
Even if we were to decide this issue on the merits, the
determination of the circuit court is entitled to "extreme
deference" and will not be reversed absent an abuse of discretion.
In re Marriage of Schweihs, 272 Ill. App. 3d 653, 658, 650 N.E.2d 569, 572 (1995). We have carefully reviewed the actual motions to
disqualify and supporting affidavits and exhibits, and nothing
contained in these documents warrants a finding that the trial
judge was prejudiced against the plaintiffs.
III. IMPOSITION OF SANCTIONS
Supreme Court Rule 137 allows a court to impose sanctions
against a party or attorney who improperly files a pleading with a
court. 134 Ill. 2d R. 137. Specifically, Rule 137 states:
"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 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. * * * 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." 134 Ill. 2d R. 137.
The standard for evaluating a party's conduct under this rule is
one of reasonableness under the circumstances existing at the time
of the filing. Bennett & Kahnweiler, Inc. v. American National
Bank and Trust Co., 256 Ill. App. 3d 1002, 1007, 628 N.E.2d 426,
430 (1993). The determination of whether to impose sanctions rests
within the sound discretion of the trial court, whose decision is
entitled to great weight and will not be disturbed on review absent
an abuse of discretion. In re Estate of Wernick, 127 Ill. 2d 61,
77-78, 535 N.E.2d 876, 883 (1989); Bennett & Kahnweiler, 256 Ill.
App. 3d at 1007, 628 N.E.2d at 430.
Korst argues that a complaint is not rendered frivolous merely
because "a strong affirmative defense exists."
There are two lines of thought on this issue in Illinois. In
Wren v. Feeney, 176 Ill. App. 3d 364, 531 N.E.2d 155 (1988), this
court considered the propriety of imposing sanctions for filing a
complaint based upon claims that were barred by the statute of
limitations. Applying the statutory predecessor to Rule 137, the
majority concluded that such a complaint was not "warranted by
existing law." Wren, 176 Ill. App. 3d at 365, 531 N.E.2d at 155-
56, citing Ill. Rev. Stat. 1987, ch. 110, par. 2--611.
In Derby Meadows Utility v. Orland Park, 226 Ill. App. 3d 195,
589 N.E.2d 700 (1992), the appellate court declined to extend the
Wren holding to the filing of a claim barred by the Statute of
Frauds. See Ill. Rev. Stat. 1987, ch. 59, pars. 0.01 et seq., now
740 ILCS 80/0.01 et seq. (West 1996). The Derby Meadows court
explained that an affirmative defense based upon the statute of
limitations is easier to anticipate and analyze than an affirmative
defense based upon the Statute of Frauds, which has many
exceptions. After reviewing the record, the court found that the
plaintiff's counsel investigated the matter and could have
reasonably believed that one of the exceptions to the Statute of
Frauds would apply in the case. Thus, the trial court did not err
in denying defendants' request for sanctions. Derby Meadows, 226
Ill. App. 3d at 200-01, 589 N.E.2d at 703-04.
Whether a judge may impose sanctions for filing a complaint
based upon absolutely privileged testimony appears to be an issue
of first impression in Illinois. However, Supreme Court Rule 137
is "almost identical" to Rule 11 of the Federal Rules of Civil
Procedure (Lewy v. Koeckritz International, Inc., 211 Ill. App. 3d
330, 334, 570 N.E.2d 361, 365 (1991)) and federal courts have held
that plaintiffs are subject to sanctions for filing and maintaining
actions against absolutely immune persons (DeSisto College v. Line,
888 F.2d 755 (1989); Riley v. City of Philadelphia, 136 F.R.D. 571
(1991), affd. 953 F.2d 1380 (1992); Jennings v. Emry, 133 F.R.D. 134 (1990)).
The record in this case shows that prior to filing the
complaint, plaintiffs' counsel was aware of the absolute privilege
enjoyed by witnesses, but chose to disregard this well-established
doctrine. Under these facts, we agree with the trial judge's
conclusion that attorney Eugene J. Korst did not file the complaint
in order to extend, modify or reverse existing case law. Korst
could not have entertained a reasonable belief that some exception
or nuance in the law might apply here. Rather, as the trial court
found, Korst improperly filed the complaint to "punish the
defendants for their testimony in the previous case."
IV. AMOUNT OF THE SANCTIONS
In imposing sanctions, the trial court found that plaintiffs'
counsel should be held liable for the attorney fees expended in
defending this case. The judge found that the fees "necessary and
actually caused by filing of the complaint" were $16,200,
consisting of 108 hours billed at $150 per hour.
While we find that the trial court properly imposed sanctions
against plaintiffs' counsel, we hold that the amount awarded is
excessive. After reviewing the record, we find that Korst was
erroneously sanctioned for 3 hours that defense counsel expended
prior to the filing of the complaint. We do not believe that this
time can reasonably be deemed an expense incurred because of the
filing of the pleading. Cf. Worthington v. Wilson, 8 F.3d 1253,
1257-58 (1993) (Federal district court had no authority to impose
sanctions for pleading filed before removal to federal court).
The trial judge also imposed sanctions for time expended by
defense counsel in preparing and presenting his unsuccessful
section 2--615 motion and supporting memorandum. During the
sanctions hearing below, attorney Korst requested that 10 hours
spent on defendants' section 2--615 motion be stricken from the
affidavit supporting defendants' sanctions request. We disagree
with the trial judge's conclusion that this time was "necessary" to
the defense of this case. Had defense counsel responded to the
complaint by filing the correct motion to raise the affirmative
defense of absolute privilege (see 735 ILCS 5/2--619 (West 1996)),
the section 2--615 motion would not have been needed at all. We
agree with Korst that this sanction should be decreased
accordingly.
We hold that the amount of the sanctions should be reduced by
$1950. Sanctions against attorney Eugene J. Korst are affirmed as
modified, in the amount of $14,250.
The judgment of the circuit court of Will County is affirmed
as modified.
Affirmed as modified.
HOLDRIDGE and HOMER, JJ., concur.
[fn1]While absolute privilege provides complete protection
from civil action, this does not mean that persons may testify
falsely with impunity. Absolute privilege does not preclude
criminal prosecution for perjury or subornation of perjury;
moreover, a myriad of disciplinary charges awaits the attorney who
participates in such misconduct. See Bushell, 291 Ill. App. 3d at
559, 683 N.E.2d at 1289.