Sariri v. Nikitas , 2021 IL App (2d) 200653-U ( 2021 )

2021 IL App (2d) 200653-UNo. 2-20-0653
Order filed June 28, 2021
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)(l).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
SHARAREH SARIRI, a/k/a Shari Sariri ) Appeal from the Circuit Court
and SHAWHEEN SARIRI, ) of Lake County.
)
Plaintiffs, )
)
v. ) No. 20-SC-509
)
GREGORY C. NIKITAS, )
)
Defendant-Appellee )
) Honorable
(Sharareh Sariri, a/k/a Shari Sariri, ) Michael B. Betar,
Plaintiff-Appellant.) ) Judge, Presiding.
______________________________________________________________________________
JUSTICE McLAREN delivered the judgment of the court.
Presiding Justice Bridges and Justice Hutchinson concurred in the judgment.
ORDER
¶1 Held: Plaintiff challenged on appeal the directed finding in favor of defendant on
plaintiff’s claim for breach of a retainer agreement, but the incomplete record that
plaintiff provided did not establish any error in the trial court’s findings that
plaintiff did not provide the retainer, was not a party to the retainer agreement, and
was not a direct beneficiary of the agreement.
¶2 Plaintiffs, Sharareh Sariri, a/k/a Shari Sariri, and her son, Shawheen Sariri, filed a pro se
small-claims complaint against defendant, Gregory C. Nikitas, an attorney, seeking the return of
2021 IL App (2d) 200653-Uattorney fees that defendant had received for representing Sharareh’s son, Shawheen Sariri.1 At a
bench trial, the trial court granted defendant’s motion for a finding in his favor at the close of
plaintiffs’ evidence (directed finding) (see 735 ILCS 5/2-1110 (West 2018)). Sharareh appeals
pro se. We affirm.
¶3 I. BACKGROUND
¶4 Sharareh and Shawheen’s complaint alleged that, on March 18, 2019, defendant was hired
to represent Shawheen; that defendant was later fired for poor performance; and that they were
owed a refund of some portion of the attorney fees paid defendant for representing Shawheen.
¶5 Included in the record, apparently as attachments to the complaint, are several documents
that were later admitted as exhibits at trial. By an e-mail dated March 19, 2019, defendant
informed Sharareh and Shawheen that he wanted a $4500 retainer. Later that day, he e-mailed
them the proposed retainer agreement. By an e-mail on March 20, 2019, Sharareh responded that
Gus Sariri, her ex-husband and Shawheen’s father, might not go along. The retainer agreement is
not in the record. However, by a letter dated July 29, 2019, Sharareh told defendant that the
agreement was for $4000 but, in court on April 3, 2019, defendant demanded a total of $12,500
and pressured Shawheen into accepting the increase. Sharareh requested a refund of $8500.
¶6 The cause proceeded to a bench trial. In addition to the noted exhibits, the court also
received a copy of Shawheen’s bail bond agreement, dated March 21, 2019. According to the
document, a bond of $25,000 had been deposited. The court also heard Sharareh’s evidence.
1
Although Shawheen’s name appeared on the small-claims complaint, it appears from the
limited record that Sharareh did all of the actual litigating against defendant.
-2-
2021 IL App (2d) 200653-UHowever, there is no transcript or bystander’s report of the trial and no agreed statement of facts
(see Ill. S. Ct. R. 323 (eff. July 1, 2017). In granting defendant a directed finding, the court stated:
“[Sharareh] testified that the $25,000.00 in bond money came from [Gus], so [that]
the source of the funds were [sic] from [Gus]. [Sharareh] testified *** that if there had
been money from the bond provided by [Gus] left over from the resolution of this case, and
upon Defendant being paid in full, then that money would have gone back to [Gus], or
toward [Shawheen’s] housing. The funds were provided for the benefit of [Shawheen] for
his bond and for his attorney’s fees. So therefore, [Sharareh] has suffered no damage. The
proper Plaintiff would have been [Gus] or [Shawheen], because the source of the funds was
not [Sharareh], nor were the funds intended for her benefit.”
¶7 Sharareh timely appealed pro se.
¶8 II. ANALYSIS
¶9 On appeal, Sharareh contends that the trial court’s judgment was erroneous because she
was a third-party beneficiary of the contract that defendant entered into with Gus and Shawheen.
Shawheen has not appealed, and the rights of only Sharareh are at issue here.
¶ 10 Defendant has not filed an appellee’s brief, but we may decide this simple case without the
aid of an appellee’s brief. See First Capitol Mortgage Corp. v. Talandis Construction Corp., 63
Ill. 2d 128, 133 (1976).
¶ 11 We also note that, as the appellant, Sharareh had the burden to produce a record sufficiently
complete to support her claim of error, and any uncertainty arising from the incompleteness of the
record must be resolved in favor of the judgment. See Foutch v. O’Bryant, 99 Ill. 2d 389, 391-92
(1984). The judgment was based on the evidence at the hearing. The record contains the exhibits
but no report of the testimony that the trial court heard.
-3-
2021 IL App (2d) 200653-U¶ 12 In ruling on a defendant’s motion for a directed finding, the trial court must first determine,
as a matter of law, whether the plaintiff has made a prima facie case; if the court decides that the
plaintiff has not done so, it should grant the motion. People ex rel. Sherman v. Cryns, 203 Ill. 2d
264, 275 (2003). On appeal, the judgment is reviewed de novo. Id. If the court finds that the
plaintiff has made a prima facie case, it must weigh the evidence and decide whether the
prima facie case has been negated; if so, then the court should grant the motion. Id. at 275-76. On
appeal, the judgment must be affirmed unless it is against the manifest weight of the evidence. Id.
at 276.
¶ 13 Here, it appears that the trial court found that there was no prima facie case. The court
found that Sharareh had suffered no legal injury because the retainer agreement was between
defendant and other parties who supplied all of the fees at issue. The court found that Sharareh
was not a party to the contract, or at the very least, that she suffered no damages. The limited
record on appeal, which does not include either the written retainer agreement or any of the trial
testimony, in no way undermines this conclusion. As both a contract between the parties and the
existence of damages are essential to a claim of breach of contract (McCleary v. Wells Fargo
Security, L.L.C., 2015 IL App (1st) 141287, ¶ 19), Sharareh did not make a prima facie case.
¶ 14 Having found that Sharareh was not a party to the retainer agreement, the court then held
that she could recover, if at all, only as an intended beneficiary of the contract—but that the funds
provided by others were not intended for her benefit. This is indeed the sole pertinent ground on
which she now challenges the judgment. However, aside from the lack of damages, only
noncontracting parties who are direct beneficiaries of a contract may sue under it. Barry v. St.
Mary’s Hospital Decatur, 2016 IL App (4th) 150961, ¶ 82. It is not sufficient that the
noncontracting party will reap incidental benefits from the contract. Id.-4-
2021 IL App (2d) 200653-U¶ 15 Here, the record does not contain the retainer agreement and we thus presume that it
supports the judgment (Foutch, 99 Ill. 2d at 392). There is no evidence to establish that Sharareh
was more than an incidental beneficiary of the contract, however much that incidental benefit
meant to her subjectively. Thus, her argument on appeal fails.
¶ 16 III. CONCLUSION
¶ 17 For the reasons stated, we affirm the judgment of the circuit court of Lake County.
¶ 18 Affirmed.
-5-