MOUNT VERNON – Attorney Tom Burkart of Hamel owes former clients Robert Wilson and Elizabeth Mollinger-Wilson more than $40,000, Fifth District appellate judges ruled on Aug. 19.
They ruled out awards of punitive damages and attorney fees against Burkart.
“We cannot conclude that Burkart made false allegations without reasonable cause or unsupported allegations of fact or law,” Justice David Overstreet wrote.
He wrote that the record didn’t reveal that Burkart acted willfully or with such gross negligence to indicate a wanton disregard of the rights of others.
Burkart began representing the Wilsons in 1998, in a real estate dispute.
Jurors awarded the Wilsons $30,000, and two appeals didn’t change the result.
In 2005, defendants added interest and submitted a check for $41,613.70.
A judge deposited the proceeds in an escrow account at Bank of Edwardsville, which distributed half to the Wilsons and half to Burkart in 2010.
In 2012, the Wilsons sued Burkart for his half and for costs, fees, interest, punitive damages, and consequential damages.
In 2013, Burkart asserted that the court authorized the distribution, the fee agreement was enforceable, and the Wilsons voluntarily paid him.
The Wilsons amended the complaint in 2015, to allege conversion, abuse of process, and malice.
Associate Judge Clarence Harrison dismissed claims of malice and abuse but allowed a claim for equitable relief.
He certified the question for appeal, and Fifth District judges found he should have ordered Burkart to return the funds.
Last year the Wilsons sought the return of the funds plus the same amount in punitive damages and about $50,000 in consequential damages, fees, and interest.
Burkart moved for them to return their half to him.
Harrison granted summary judgment for the Wilsons, finding Burkart exercised control over the proceeds in a manner inconsistent with their right of possession.
He ordered Burkart to tender a certified check for half the proceeds plus interest, a sum of $40,744.37.
He denied punitive damages and attorney fees.
Fifth District judges found Harrison based his denial of attorney fees on valid reasons following logically from the circumstances.
On punitive damages, they found the record didn’t support a conclusion that Burkart acted fraudulently or maliciously.
“Accordingly, we found that the circuit court, considering the intricacies of the decades long litigation in this case, did not abuse its discretion in declining to assess punitive damages,” Overstreet wrote.
He wrote that even if they disagreed, they couldn’t substitute their judgment for that of a circuit judge in a better position to evaluate the conduct of parties.