Fifth District affirms Madison County ruling in breach of contract case

By Bethany Krajelis | Feb 4, 2013


The Fifth District Appellate Court has affirmed a Madison County ruling that ordered defendants in a breach of contract suit to pay more than $113,000 to the plaintiffs and their attorneys.

In an unpublished order released late last month, the appeals panel affirmed two 2004 orders from now-retired Judge Ralph Mendelsohn in favor of plaintiffs Michael Pickett and Juanita Redfern.

Those orders called for a $35,000 judgment on the breach of contract claim and $70,000 in plaintiffs’ attorneys’ fees, both of which were entered against Laura Williams, individually and as the administrator of Thomas Eugene Williams Jr.’s estate.

Pickett and Redfern filed a complaint in 2003 against the Williamses, claiming they breached a contract to buy the plaintiffs’ Granite City property by failing to tender the purchase price.

They also accused Diana Naney, a real estate agent with Royce Realty, of convincing the Williamses to buy a different house in order to obtain a commission.

The first two counts of the suit were lodged against the Williamses for breach of contract while the remaining counts were against Naney and Royce Realty for intentional interference with a contractual relationship.

The first trial, which commenced in 2003, ended in a mistrial. The second trial ended in 2004, when a jury awarded damages to the plaintiffs in the amount of $35,000 for interest, taxes, insurance and maintenance.

The jury also determined that the real estate agent defendants were liable for tortious interference with the contract, assessing $60,000 in punitive damages against Naney and Royce Realty.

Mendelsohn in March 2004 entered a judgment on the jury’s findings.

A few days later, the plaintiffs filed a petition requesting attorneys’ fees and costs in the amount of $180,372.24.

At a hearing on that petition, Edwardsville attorney Donald Metzger testified for the Williamses that the number of hours the plaintiffs’ attorneys spent on the case and their $300 per hour billing rate were unreasonable.

Wood River attorney Thomas Maag testified on the plaintiffs’ behalf at that hearing. He represented the plaintiffs, according to the appellate court clerk’s office, and attorneys from McCarthy & Allen in Glen Carbon represented the Williamses.

Maag, the appellate court order states, testified that the billing rate was reasonable, but admitted that the time entries included work performed in bringing claims against the real estate agent defendants and that he had been paid a $250 per hour fee in the past.

In July 2004, Mendelsohn entered an order concluding that $200 per hour was a reasonable rate and 350 hours was a reasonable amount of time for the plaintiffs’ attorneys to have spent on the case.

As such, he ordered the Williamses to pay $70,000 in attorneys’ fees and $8,631 in costs to the plaintiffs.

After their post-trial motion was denied, the Williamses filed a suggestion of bankruptcy. Their appeal was then stayed and severed from the real estate agent defendants’ appeal, which proceeded to the Fifth District.

An appeals panel reversed the judgment against Naney and Royce Realty and remanded for a new trial, finding that the punitive damage awards couldn’t stand because the verdict form didn’t provide a place for the jury to assess compensatory damages against those defendants.

In October 2011, after the case against the real estate agent defendants was dismissed pursuant to a settlement, the appellate court lifted the stay of the Williamses’ appeal,

The Williamses argued on appeal that the jury was not properly instructed on how to calculate damages, the verdict form failed to provide for an apportionment of compensatory damages between them and the other defendants and that the attorneys’ fee award was excessive.

The appeals panel rejected all of the Williamses arguments in its unpublished order, which was delivered by Justice Stephen Spomer. Justices Bruce Stewart and James Wexstten concurred.

In regards to the defendants’ argument over the jury verdict form, Spomer wrote for the panel that the Williamses never objected to the verdict form, didn’t offer an alternative form and failed to raise the issue of apportionment in their post-trial motion.

“Failure to raise an objection at trial or in post-trial proceedings constitutes a waiver of right to raise the issue on appeal,” Spomer wrote. “Accordingly, we will not grant the Williamses a new trial on the basis that the verdict form did not provide a means for the jury to apportion the compensatory damages.”

The panel also didn’t buy the Williamses contention that the jury was not properly instructed on how to calculate damages.

The Williamses claimed the jury should have been given Illinois Pattern Jury Instruction No. 700.15, which governs damages for a buyer’s breach of contract in a real estate purchase.

Spomer, however, explained that the defendants waived this issue because “said instruction was not even in existence at the time of trial.” It was adopted in 2005.

As far as the Williamses argument over attorneys’ fees and costs, Spomer wrote that Mendelsohn did not abuse his discretion because he “gave due consideration” to the plaintiffs’ time itemization, among other facts, and determined a reasonable fee.

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