Fidelity National Title Insurance Co. v. Jensen ( 2023 )

2023 IL App (2d) 220260-UNo. 2-22-0260
Order filed February 24, 2023
NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent
except in the limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
FIDELITY NATIONAL TITLE INSURANCE ) Appeal from the Circuit Court
COMPANY, as Successor in Interest to ) of McHenry County.
Lawyers Title Insurance Corporation, )
Directly and as Subrogee of David Erickson, )
Wendy Erickson, Michael Schumacher, and )
Karen Schumacher, )
)
Plaintiff )
)
v. ) No. 18-LA-157
)
)
)
ROBERT C. JENSEN and DEBORAH A. )
JENSEN, )
)
Defendants and Third-Party Plaintiffs )
)
(Fox Title Company, Third-Party Defendant )
and Petitioner-Appellee; David Erickson, )
Wendy Erickson, Michael Schumacher, and )
Karen Schumacher, Third-Party Defendants; ) Honorable
William P. Petsche and Melei Petsche Spencer, ) Kevin G. Costello,
Respondents-Appellants). ) Judge, Presiding.
______________________________________________________________________________
JUSTICE JORGENSEN delivered the judgment of the court.
Justices Schostok and Kennedy concurred in the judgment.
ORDER
¶1 Held: The trial court did not abuse its discretion in awarding against third-party plaintiff’s
attorneys the fees third-party defendant incurred after the attorneys learned that the
claim against third-party defendant was baseless yet refused to dismiss the claim
and instead sought further discovery.
2023 IL App (2d) 220260-U¶2 William P. Petsche and the law firm of Melei Petsche Spencer (collectively, MPS),
attorneys for defendants and third-party plaintiffs, Robert C. Jensen and Deborah A. Jensen
(Jensens), appeal from a judgment imposing attorney fees as a sanction under Illinois Supreme
Court Rule 137 (eff. Jan. 1, 2018). MPS contends that the trial court abused its discretion in
imposing the sanction. We hold that the court properly found that MPS violated Rule 137 and that
the sanction was not an abuse of discretion. Therefore, we affirm.
¶3 I. BACKGROUND
¶4 On May 4, 2018, plaintiff, Fidelity National Title Insurance Company (FNTI), as subrogee
of David Erickson (David), Wendy Erickson (Wendy), Michael Schumacher (Michael), and Karen
Schumacher (Karen) (collectively, insureds), filed a complaint against defendants, Robert C.
Jensen and Deborah A. Jensen (Jensens), seeking $61,000 in damages for breach of a warranty
deed. FNTI alleged that, in 2007, the insureds purchased a lot (Lot 1) from the Jensens, who
conveyed to the insureds a warranty deed. At the time of the sale, FNTI’s predecessor in interest,
through its agent, Fox Title Co. (Fox Title), issued to the insureds an owner’s title-insurance policy,
insuring against any loss resulting from any defect in, or encumbrance upon, the title to Lot 1. In
2010, the insureds discovered that there were four easements, undisclosed in the 2007 title,
granting the owners of neighboring lots access to Pistakee Lake. As a result, the insureds tendered
a claim to FNTI, which, after investigation, determined that the easements diminished the value of
Lot 1 by $61,000. Thus, FNTI paid the insureds $61,000 under the policy.
¶5 The Jensens retained MPS to represent them against FNTI’s lawsuit. On July 1, 2020, the
Jensens filed a third-party complaint against the Ericksons, Schumachers, and Fox Title. The
complaint’s common allegations recounted the insureds’ sale of Lot 1 to the Jensens. The
complaint then alleged that, “[u]pon information and belief, at all times relevant, [Wendy] and/or
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2023 IL App (2d) 220260-U[Karen] were acting individually and as agents, servants, and employees of [Fox Title].” Further,
“[u]pon information and belief, [Wendy] and/or [Karen] altered the [t]itle [c]ommitment issued
for the Lot 1 property so as to prevent [the easements] from appearing on said [t]itle
[c]ommitment.” Later, the insureds filed a claim with FNTI, which paid out $61,000 under its title
policy because there were undisclosed easements on Lot 1. FNTI then sued the Jensens for
$61,000.
¶6 The third-party complaint set out three claims. Count I alleged fraud by the Ericksons and
the Schumachers. Specifically, count I alleged that, “[p]rior to and during the sale of [Lot 1], the
Ericksons and Schumachers represented to the Jensens that” (1) Wendy and David would draft the
warranty deed “to include all relevant information regarding [Lot 1];” (2) “[Wendy] and/or
[Karen], as employees, servants, and agents of Fox Title,” would prepare the title commitment for
Lot 1 “and include all relevant information regarding [Lot 1]” on the title commitment; and
(3) “Fox Title, as employer and principal for [Wendy] and/or [Karen], would handle and process
the closing of [Lot 1].” Count I further alleged that the Ericksons and the Schumachers made these
representations while knowing they were false because the warranty deed and title commitment
they prepared did not disclose the easements on Lot 1.
¶7 Count II, claiming tortious interference with a contract, alleged that, before agreeing to sell
Lot 1 to the Ericksons and the Schumachers, the Jensens had agreed to sell Lot 1 to a third party.
The Ericksons and the Schumachers intentionally interfered with the agreement to sell to the third
party by making a higher offer for Lot 1 and by deliberating preparing the warranty deed and title
commitment to exclude the easements on Lot 1.
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2023 IL App (2d) 220260-U¶8 Count III alleged that the Ericksons and the Schumachers engaged in a civil conspiracy to
obtain the insurance proceeds under the title policy by deliberately omitting the easements when
they prepared the warranty deed and title commitment.
¶9 As to Fox Title, the third-party complaint alleged only a theory of vicarious liability.
Specifically, the complaint alleged that “[Wendy] and/or [Karen] *** act[ed] *** as agents,
servants, and employees of [Fox Title]” and that “Fox Title [was the] employer and principal for
[Wendy] and/or [Karen].”
¶ 10 On February 1, 2021, Fox Title filed a motion, under section 2-619.1 of the Code of Civil
Procedure (735 ILCS 5/2-619.1 (West 2020)), to dismiss the third-party complaint as to Fox Title.
Fox Title argued that the complaint contained no allegations of wrongdoing by Fox Title and that
the allegation that Wendy and Karen were agents, servants, or employees of Fox Title was false.
Attached to the motion to dismiss were the affidavits of (1) Wendy and (2) Daniel Rigby.
¶ 11 In her affidavit, Wendy averred that at no time during the sale of Lot 1 was she an
employee, servant, or agent of Fox Title. She further denied that she ever represented to the
Jensens that she would handle the processing for the closing or prepare the title commitment, either
individually or as an agent of Fox Title.
¶ 12 In his affidavit, Rigby averred that he was the president of Fox Title. He further averred
that “[a]t no time before, after, or during the transaction at issue[ ] were [Wendy] [or] [Karen] [ ]
an employee, servant, or agent of [Fox Title].”
¶ 13 On February 26, 2021, the Jensens filed a motion (1) to extend the time to respond to the
motion to dismiss and (2) for leave to conduct discovery. They sought written discovery and to
depose both Wendy and Rigby on whether Wendy and Karen had been agents, servants, or
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2023 IL App (2d) 220260-Uemployees of Fox Title. The court granted the motion, striking the briefing schedule on the motion
to dismiss and setting a discovery deadline.
¶ 14 Thereafter, the Jensens and Fox Title had a discovery dispute, with Fox Title providing
some discovery and contesting disclosure of other materials. On July 14, 2021, Fox Title produced
some of the written materials sought by the Jensens, including its entire file on the Lot 1
transaction.
¶ 15 Subsequently, the trial court set October 25, 2021, as the deadline for discovery, including
the depositions of Wendy and Rigby. On October 25, 2021, MPS filed a motion to extend the
discovery deadline by at least 21 days because the Jensens’ lead attorney had been ill. On
November 2, 2021, the court granted the motion and gave the Jensens an additional 21 days to
complete discovery.
¶ 16 However, on the next day, November 3, 2021, MPS filed a motion to withdraw as counsel,
asserting that, for professional reasons, it could no longer represent the Jensens. On November
16, 2021, over Fox Title’s objection, the trial court granted the motion to withdraw. The court set
the matter for a December 6, 2021, status hearing on Fox Title’s motion to dismiss the third-party
complaint. On December 6, 2021, the court granted Fox Title’s motion to dismiss the complaint.
¶ 17 On January 13, 2022, Fox Title filed a Rule 137 motion for sanctions against the Jensens
and MPS. In the motion, Fox Title identified two submissions that it alleged were not well
grounded in fact or warranted by existing law: (1) the Jensens’ third-party complaint and (2) the
Jensens’ February 26, 2021, motion (a) to extend the time to respond to Fox Title’s motion to
dismiss and (b) for leave to conduct discovery. Fox Title asserted that there was no truth to the
third-party complaint’s allegations that Wendy and Karen were Fox Title’s employees, servants,
or agents and that Fox Title was the employer and principal of Wendy and Karen.
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2023 IL App (2d) 220260-U¶ 18 Fox Title further asserted as follows. Fox Title’s attorney had thoroughly investigated the
allegations regarding Fox Title and found no evidence that either Wendy or Karen was ever Fox
Title’s agent, servant, or employee. Nor did any of the discovery conducted by MPS produce any
evidence that either Wendy or Karen was ever Fox Title’s agent, servant, or employee. On
February 1, 2021, Fox Title filed its motion to dismiss the third-party claim against it because there
was no evidence of an agency relationship between Fox Title and either Wendy or Karen. Rather
than dismiss the action, MPS filed the February 26, 2021, motion. Later, on August 13, 2021, Fox
Title’s attorney sent MPS a letter, stating that there was no evidence of agency between Fox Title
and either Wendy or Karen and asking MPS to dismiss Fox Title from the third-party action. MPS
refused to dismiss Fox Title, instead obtaining the court’s permission to depose Wendy and
representatives of Fox Title on or before October 25, 2021. However, MPS never issued any notice
to depose Wendy or a Fox Title representative. Instead, MPS obtained an extension of time to
conduct the depositions, but, the very next day, moved to withdraw as counsel.
¶ 19 Fox Title asserted that a reasonable investigation before filing the third-party complaint
would have revealed no employment or other agency relationship between Fox Title and Wendy
or Karen. Also, MPS should have known that the agency allegations were false when it filed the
complaint and later when it persisted in seeking further discovery. Thus, Fox Title sought
$34,995.13 in fees and costs related to defending against the third-party complaint.
¶ 20 On April 13, 2022, the trial court conducted a hearing on Fox Title’s Rule 137 motion. On
that same date, MPS filed a cross-motion for fees against Fox Title. The court allowed MPS to
file a supplemental response to Fox Title’s Rule 137 motion.
¶ 21 On May 26, 2022, the trial court issued a 20-page memorandum decision and order. After
thoroughly discussing the case’s background, including the discovery that had been sought and
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2023 IL App (2d) 220260-Uproduced, the court found as follows. The only “ ‘evidence’ ” that the Ericksons and the
Schumachers were agents, servants, or employees of Fox Title was the fact that Wendy placed an
order for a title commitment with Fox Title. This fact “[did] not make [Wendy] an agent or
employee of Fox Title but rather a client.” Nonetheless, MPS filed its third-party action alleging
that Fox Title had an agency relationship with Wendy and Karen. Moreover, despite Rigby’s
affidavit unequivocally stating that neither Wendy nor Karen was ever an agent, servant, or
employee of Fox Title, MPS refused to dismiss Fox Title and insisted on conducting discovery
related to the agency/employment issue. On July 14, 2021, Fox Title produced its entire file related
to the Lot 1 transaction; those documents established unequivocally that Wendy and Karen were
involved with Fox Title only as clients and not employees. Alternatively, even if Wendy and
Karen were employees of Fox Title and had deliberately altered the title commitment to remove
the easements, such tortious action would have been outside the scope of their employment, Thus,
Fox Title would not have been vicariously liable for it.
¶ 22 The court concluded that “it [was] established that Jensens’ [t]hird [p]arty [c]omplaint was
not ‘well grounded in fact and *** warranted by existing law’ as required under [Rule 137].” But
although “a strong case can be made that the [t]hird [p]arty [c]omplaint never should have been
brought against Fox Title, without question the claims should have been voluntarily dismissed
when Fox Title produced documentation proving it did not employ Ericksons or Schumachers.”
Thus, sanctions were warranted only for MPS’s efforts to seek further discovery after July 14,
2021, when Fox Title produced documents conclusively showing that neither Wendy nor Karen
was ever its agent, servant, or employee. Because MPS should have dismissed the Jensens on July
14, 2021, MPS was liable for reasonable attorney fees Fox Title incurred between that date and
the dismissal of the third-party complaint. Accordingly, the court awarded Fox Title $3200 in
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2023 IL App (2d) 220260-Uattorney fees relating to the third-party complaint and $1100 in fees relating to the motion for
sanctions. The court declined to enter sanctions against the Jensens.
¶ 23 MPS filed this timely appeal.
¶ 24 II. ANALYSIS
¶ 25 On appeal, MPS contends that (1) the trial court abused its discretion in finding that the
third-party complaint was not well-grounded in fact or warranted by existing law, (2) the court
failed to consider the timing of the filing of the third-party complaint in determining whether MPS
had reasonably inquired into the facts and law before filing the third-party complaint, and (3) the
court misconstrued MPS’s legal theories pled in the third-party complaint.
¶ 26 Fox Title has not filed an appellee’s brief. Nonetheless, because the record is
straightforward and we can readily address MPS’s arguments without an appellee’s brief, we will
decide the merits of this appeal. See First Capitol Mortgage Corp. v. Talandis Construction Corp.,
63 Ill. 2d 128, 133 (1976).
¶ 27 Rule 137 provides, in pertinent part, that an attorney’s signature on a pleading or motion
certifies
“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(a) (eff. Jan 1, 2018).
Implicit in Rule 137 is a requirement that “ ‘an attorney promptly dismiss a lawsuit once it becomes
evident that it is unfounded.’ ” [Citation.] Lake Environmental, Inc. v. Arnold, 2015 IL 118110,
¶ 13 (quoting Rankin v. Heidlebaugh, 321 Ill App. 3d 255, 267 (2001)). Appropriate sanctions
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2023 IL App (2d) 220260-Uagainst counsel for violating the rule may include an order to pay the other party’s reasonable
attorney fees incurred because of the filing. Ill. S. Ct. R. 137(a) (Jan. 1, 2018).
¶ 28 The party seeking sanctions under Rule 137 bears the burden of proof. Technology
Innovation Center, Inc. v. Advanced Multiuser Technologies Corp., 315 Ill. App. 3d 238, 243
(2000). The purpose of Rule 137 is to prevent abuse of the judicial process by sanctioning those
who file vexatious and harassing actions based on unsupported allegations of fact or law. Dismuke
v. Rand Cook Auto Sales, Inc., 378 Ill. App. 3d 214, 217 (2007). The rule is penal in nature and,
therefore, must be strictly construed, reserving sanctions for the most egregious cases. Patton v.
Lee, 406 Ill. App. 3d 195, 202 (2010). Rule 137 is designed to discourage frivolous filings, not to
punish parties for making losing arguments. Arnold, 2015 IL 118110, ¶ 15. We review for an
abuse of discretion the trial court’s ruling on a Rule 137 motion for sanctions. Arnold, 2015 IL
118110, ¶ 16. A court abuses its discretion when no reasonable person would agree with its
decision. Arnold, 2015 IL 118110, ¶ 16.
¶ 29 MPS raises issues regarding its filing of the third-party complaint. However, the sole issue
we need to address is whether the trial court abused its discretion in imposing attorney fees as a
Rule 137 sanction based on MPS’s refusal to dismiss Fox Title after July 14, 2021, and MPS’s
pursuit of further discovery. The court did not sanction MPS for filing the third-party complaint
against Fox Title. The court sanctioned MPS for refusing to dismiss Fox Title—and instead
seeking further discovery—after receiving written discovery on July 14, 2021, that showed there
was no employment or other agency relationship between Fox Title and either Wendy or Karen.
Thus, we need not consider whether the third-party complaint violated Rule 137 when filed.
Instead, we will decide whether the trial court abused its discretion in imposing attorney fees for
MPS’s conduct after July 14, 2021.
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2023 IL App (2d) 220260-U¶ 30 Further, in deciding whether the trial court properly imposed sanctions under Rule 137, we
emphasize that the only legal theory pled against Fox Title in the third-party complaint was based
on vicarious liability, namely the doctrine of respondeat superior. See McNerney v. Allamuradov,
2017 IL App (1st) 153515, ¶ 67. Thus, in determining whether the trial court abused its discretion
in imposing attorney fees under Rule 137, we need not address the underlying theories of liability
alleged against the Ericksons and the Schumachers—we need only decide whether MPS should
have dismissed Fox Title after learning that its theory of vicarious liability against Fox Title lacked
arguable merit.
¶ 31 In imposing sanctions, the trial court found that, as of July 14, 2021, discovery had
produced no evidence whatsoever that either Wendy or Karen was ever an agent, servant, or
employee of Fox Title. In so finding, the court noted that Rigby, the president of Fox Title, averred
in his affidavit that neither Wendy nor Karen had ever been an agent, servant, or employee of Fox
Title. Additionally, the court emphasized that, on July 14, 2021, Fox Title produced its entire file
regarding the Lot 1 transaction and that those materials unequivocally established that Wendy and
Karen were not employees, servants, or agents of Fox Title but were instead mere clients. Further,
MPS did not dispute that discovery provided as of July 14, 2021, did not show that either Wendy
or Karen had been an agent, servant, or employee of Fox Title. At that point, it was unreasonable
for MPS not to have dismissed Fox Title.
¶ 32 However, instead of dismissing Fox Title, MPS continued to resist Fox Title’s motion to
dismiss and persisted in seeking further discovery via the depositions of Rigby and Wendy,
(1) even though both had unequivocally stated in their respective affidavits that there was no
employment or other agency relationship, and (2) despite the fact that the file produced on July
14, 2021, did not contain one shred of evidence that such a relationship ever existed. Moreover,
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2023 IL App (2d) 220260-Uafter insisting on further discovery via the two depositions, MPS never followed through but
unexpectedly withdrew from the case the day after obtaining a 21-day extension to conduct the
depositions.
¶ 33 Clearly, after July 14, 2021, MPS acted unreasonably in continuing to press its vicarious-
liability theory against Fox Title. Because it became evident on July 14, 2021, that the claim
against Fox Title was unfounded, MPS should have promptly dismissed Fox Title. See Arnold,
2015 IL 118110, ¶ 13. Thus, the trial court correctly found that MPS violated Rule 137 when,
after July 14, 2021, it continued to pursue its third-party claim against Fox Title, and so the court
did not abuse its discretion in awarding Fox Title attorney fees for having to continue its defense.
Nor did the court abuse its discretion in awarding Fox Title attorney fees related to the Rule 137
sanctions motion.
¶ 34 Further, we note that MPS does not dispute the amount of the fees imposed. Thus, we do
not address that issue.
¶ 35 Finally, considering the busy schedules of trial court judges, we commend the trial court
here for its thorough and well-reasoned memorandum decision and order. The court meticulously
laid out the background of the case. The court carefully explained its distinction between
(1) MPS’s filing the third-party complaint and (2) its pursuit of further discovery and refusal to
dismiss Fox Title after it became apparent on July 14, 2021, that there was no arguable claim based
on vicarious liability. Further, the court set out the established law and clearly explained its
reasoning for imposing sanctions under Rule 137. The court’s conscientious work was especially
helpful in our disposition of this appeal.
¶ 36 III. CONCLUSION
¶ 37 For the reasons stated, we affirm the judgment of the circuit court of McHenry County.
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2023 IL App (2d) 220260-U¶ 38 Affirmed.
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