| CHICAGO TITLE AND TRUST COMPANY, as Trustee of Land Trust Number 1095507, and SUNCOAST INVESTMENT, INC., a Foreign Corporation, Plaintiffs-Appellees, v. DAVID LEVINE, | ) ) ) ) ) ) ) ) ) ) ) | Appeal from the Circuit Court for the 10th Judicial Circuit, Tazewell County, Illinois. No. 99 L 114 Honorable |
JUSTICE BRESLIN delivered the opinion of the court:
Plaintiffs Chicago Title & Trust Company and SuncoastInvestments, Inc. (collectively, Chicago Title), filed an actionagainst David Levine to recover compensatory and punitive damagesfor slander of title. Chicago Title claimed that Levinemaliciously filed an attorney's lien against property held in aland trust of which Chicago Title was trustee. The jury rendereda verdict in favor of Chicago Title and awarded it attorney feesand punitive damages. Levine moved for a judgment notwithstandingthe verdict (judgment n.o.v.). The motion was denied, and Levineappealed. We affirm and hold that an attorney commits slander oftitle when he maliciously files a lien against property incontravention of the Illinois Attorneys Lien Act (770 ILCS 5/1(West 2000)), disparages title to the property, and causes damages.
FACTS
In December of 1993, Susan Fasse filed an action againstThomas Cassidy in Cobb County, Georgia, to dissolve their commonlaw marriage. The action also sought the rights to a farm locatednear Delavan, Illinois, and named Television Cablecasting, Inc.(TCI), and Chicago Title as defendants. Fasse, who assigned her interest in the farm to a trust naming Chicago Title as trustee,later transferred the beneficial interest in the trust to TCI, acorporation owned by Cassidy. Levine represented TCI and Cassidyin the litigation.
During the pendency of the litigation the parties and theiragents were under a standing order of the court entered on December10, 1993, not to encumber any of the property belonging to theparties. Regardless, Levine filed an attorney's lien against thefarm in the recorder's office of Tazewell County, Illinois, on May9, 1995. One week later, a jury awarded Fasse 100% of the stock inTCI (which held the beneficial interest in the farm), and pursuantto the verdict the court directed Cassidy to satisfy alloutstanding liens on the farm. Afterwards, TCI, under theownership of Fasse, assigned its interest in the trust to Suncoast.
Subsequent to the change in beneficial ownership of the farmfrom TCI to Suncoast, Levine sent Cassidy a bill for services forwork he performed on behalf of TCI and Chicago Title. Although thebill did not provide an itemization of the amount of fees andexpenses for each activity that Levine claimed to have performed,the bill indicated that a balance of $42,762.35 was due and owing. Thereafter, Levine sent Cassidy a draft of an engagement letterthat described the future services that Levine would provide onbehalf of Cassidy, TCI and Chicago Title in the dissolution ofmarriage case. The letter was backdated by two years, signed byCassidy, and sent to Fasse by Levine with a copy of the attorney'slien. Later, Levine filed an action for fees against TCI in aGeorgia court.
In August of 1999, Chicago Title filed the instant matteragainst Levine in the circuit court of Tazewell County, Illinois. Chicago Title claimed slander of title and requested a declaratoryjudgment that the lien on the property was invalid. Levineanswered and counterclaimed, arguing that Suncoast received thetransfer of interest in the farm by a fraudulent conveyance. Thetrial court entered summary judgment in favor of Chicago Title,declaring that the lien was invalid as a matter of law. The courtalso entered an order striking the counterclaim on the basis oflack of jurisdiction.
At trial on the slander of title claim, Fasse testified thatafter a significant judgment was entered against her in anothermatter she put the property into a trust so that it could not betouched by the judgment creditor. She later conveyed the interestin the property to Suncoast so that it could not be touched byCassidy or Levine. An attorney called as an expert on behalf ofChicago Title opined that an attorney who performed a minimumamount of legal research would know that the lien was invalid: (1)where the attorney was defending a claim instead of pursuing aclaim on behalf of his client against a third party, and (2) nonotice was given in accordance with the statute. Levine testifiedthat he believed the lien was valid because Cassidy, a licensedIllinois attorney, had told him that it was.
At the conclusion of trial, the jury returned a verdict infavor of Chicago Title. It awarded $3,929.60 in attorney fees and$30,000 in punitive damages. Levine appealed. Subsequently,Levine amended his complaint in the Georgia fee action adding acount against Suncoast for fraudulent conveyance.
Additional facts will be provided as they become pertinent tothe analysis.
ANALYSIS
On appeal, Levine contests the jury's verdict and its award ofdamages. He also claims that the jury was improperly instructedand that the court erroneously dismissed his counterclaim based onlack of jurisdiction. This court uses a de novo standard to reviewa trial court's decision to deny a motion for a judgment n.o.v. andto dismiss a claim on jurisdictional grounds. Kopczick v. HobartCorp., 308 Ill. App. 3d 967, 721 N.E.2d 769 (1999); Doe v. McKay,183 Ill. 2d 272, 700 N.E.2d 1018 (1998). We review a trial court'sdecision regarding jury instructions for abuse of discretion. Linnv. Damilano, 303 Ill. App. 3d 600, 708 N.E.2d 533 (1999).
Levine's first argument is that the verdict was improperbecause there was no evidence that he acted with malice or filedfalse information in the lien. He also argues that the award ofactual and punitive damages was unsupported by the evidence.
A plaintiff asserting slander of title bears the burden ofproving the following: (1) the defendant made a false and maliciouspublication; (2) the publication disparaged the plaintiff's titleto property; and (3) damages due to the publication. AmericanNational Bank & Trust Co. v. Bentley Builders, Inc., 308 Ill. App.3d 246, 719 N.E.2d 360 (1999). A plaintiff must also prove thatthe defendant acted with malice. Bentley Builders, 308 Ill. App. 3dat 252, 719 N.E.2d at 364. To prove malice, a plaintiff must showthat the defendant knew that the disparaging statements were falseor that the statements were made with reckless disregard of theirtruth or falsity. Bentley Builders, 308 Ill. App. 3d at 252-53, 719N.E.2d at 364. A defendant acts with reckless disregard if hepublishes the allegedly damaging matter despite a high degree ofawareness of its probable falsity or if he has serious doubts as toits truth. Bentley Builders, 308 Ill. App. 3d at 253, 719 N.E.2d at364.
Although Levine claims that the evidence does not supportChicago Title's claim that he maliciously filed the lien or filedfalse information in the lien, we do not agree. Levine admitted hedid no independent research on the Illinois Attorneys Lien Act whenhe testified that he relied only on the fact that his client, anattorney licensed in Illinois, told him that he could file thelien. Chicago Title's expert testified that, in his opinion, anattorney who performed a minimum amount of legal research wouldknow that the lien was invalid. No client and no party againstwhom a claim was made was identified by the lien. See 770 ILCS 5/1(West 2000). No notice in writing was served on a party againstwhom a client of Levine's had a claim or cause of action. See Inre Del Grosso, 111 B.R. 178 (N.D. Ill. 1990). The backdated letterand bill for services both indicated that Levine performed work onbehalf of Chicago Title, despite the fact that Chicago Title wasnot Levine's client. In addition, the bill for services providedno itemization for the approximate $40,000 in fees claimed on theattorney's lien. Most damaging, however, was the fact that at thetime Levine filed the lien he and his clients were under a standingcourt order not to encumber any of the property of the partiespending the outcome of the divorce action. But one week before ajury rendered a verdict in the divorce action, Levine filed thelien. Because the jury in this case could have relied on thisevidence to determine that Levine recklessly and/or maliciouslyfiled the lien, we cannot say that the verdict was improper in anyway.
We do not agree with Levine's claim that the jury's award ofdamages was not supported by the evidence. Sufficient evidenceexisted for a jury to determine that Levine acted maliciously andwith reckless disregard for the truth. In addition, the presidentof Suncoast testified that when a portion of the property was to besold, the lien caused a delay in the closing and damages in theform of attorney fees to remove the lien. Based on this evidence,we affirm the jury's verdict and its award of damages. SeeEmbassy/Main Auto Leasing Co. v. C.A.R. Leasing, Inc., 155 Ill.App. 3d 427, 508 N.E.2d 331 (1987) (affirming a jury's award ofpunitive damages because sufficient evidence revealed that thedefendant's actions were malicious).
Levine's second argument is that the trial court erred when itrefused to tender to the jury two proposed instructions and when iterroneously tendered several others. The first two instructionsprovided that the jury was not to consider the amount, extent andvalue of Levine's legal services to TCI when it determined whetherthe lien was false. The remaining instructions involved punitivedamages. According to Levine, the court improperly instructed thejury that it could award punitive damages and erroneously attemptedto "bootstrap" the definition of malice for slander of title whenproviding the standard of malice for punitive damages.
A litigant has the right to have the jury clearly and fairlyinstructed upon each theory supported by evidence, but the juryshould not be given an instruction not based on evidence. Leonardiv. Loyola University of Chicago, 168 Ill. 2d 83, 658 N.E.2d 450(1995). The test in determining the propriety of tenderedinstructions is whether the jury was fairly, fully, andcomprehensively informed as to the relevant principles, consideringthe instructions in their entirety. Leonardi, 168 Ill. 2d at 100,658 N.E.2d at 458.
Based on our review of the jury instructions, we cannot saythat the trial court erred when it refused to tender to the jury aninstruction not to consider the amount, extent and value of theclaimed services. The amount of the fees and the value of servicesrelate to the issue of whether the information on the lien wasfalse. As such, we affirm the trial court's decision. See Hajianv. Holy Family Hospital, 273 Ill. App. 3d 932, 652 N.E.2d 1132(1995) (providing that a trial court has considerable discretion indetermining which issues have been raised by the evidence at trialand the form in which a jury instruction shall be given).
Regarding Levine's claim that the court should not haveinstructed the jury regarding punitive damages or that it gave animproper definition of malice for punitive damages, we disagree. As indicated previously, there is sufficient evidence in the recordfor the jury to determine that Levine's actions were malicious andthat punitive damages were warranted. See Cirrincione v. Johnson,184 Ill. 2d 109, 703 N.E.2d 67 (1998) (providing that punitivedamages may be awarded if a tort is committed with actual malice orwith such gross negligence as to indicate a wanton disregard of therights of others). Furthermore, there is no indication that thecourt attempted to "bootstrap" an improper standard for punitivedamages. A review of the jury instructions indicates that the jurywas given separate instructions on the standards for malice in aslander of title action and for willful and wanton conduct in apunitive damages claim. Because both issues were raised and bothstandards given, Levine's argument is without merit.
Levine's final argument is that the trial court improperly dismissed his counterclaim against Suncoast based on lack ofjurisdiction. He claims that he was unfairly forced to defendagainst the slander of title action without having the opportunityto establish that the property was transferred by a fraudulentconveyance. Chicago Title responds that the issue is moot andshould not be considered by this court because, after the notice ofappeal was filed in this case, Levine added a similar claim againstSuncoast in the Georgia fee action containing essentially the sameallegations as in this case.
We agree with Chicago Title. A review of the Georgiacomplaint and the counterclaim in this case reveals that the samecause of action containing the same issue with the same parties isfiled in both forums. Therefore, we hold that the trial court didnot err when it dismissed Levine's counterclaim. See 735 ILCS 5/2-619(3) (West 2000) (providing that an action may be dismissed ifanother action is currently pending between the same parties forthe same cause). As a result, we affirm.
For the foregoing reasons, the judgment of the circuit courtof Tazewell County is affirmed.
Affirmed.
LYTTON, P.J., and HOMER, J., concur.