Doctor's Associates, Inc. v. Duree

745 N.E.2d 1270, 319 Ill. App. 3d 1032, 253 Ill. Dec. 736, 2001 Ill. App. LEXIS 137
CourtAppellate Court of Illinois
DecidedMarch 14, 2001
Docket1 — 00—0163
StatusPublished
Cited by35 cases

This text of 745 N.E.2d 1270 (Doctor's Associates, Inc. v. Duree) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Doctor's Associates, Inc. v. Duree, 745 N.E.2d 1270, 319 Ill. App. 3d 1032, 253 Ill. Dec. 736, 2001 Ill. App. LEXIS 137 (Ill. Ct. App. 2001).

Opinion

JUSTICE CERDA

delivered the opinion of the court:

In this case, defendant, David Duree, appeals the order of the circuit court refusing to set aside and vacate a Kansas state court judgment domesticated by plaintiffs, Doctor’s Associates, Inc., and Subway Restaurants, Inc. (collectively referred to herein as DAI/SRI), under the Illinois version of the Uniform Enforcement of Foreign Judgments Act (Act) (735 ILCS 5/12 — 650 et seq. (West 1998)). The Kansas judgment represented an award of sanctions in favor of DAI and against Duree personally for costs incurred by DAI in defending a counterclaim determined to have been filed in bad faith by Duree as attorney for third parties sued by DAI in Kansas state court. On appeal, Duree argues the circuit court erred in giving the Kansas judgment full faith and credit under the Act because: (1) the Kansas state court lacked subject matter jurisdiction; (2) the sanctions award was procured by extrinsic fraud; (3) he has been released by DAI from any obligation to pay the amount of the sanctions judgment; and (4) he was denied due process of law in the Kansas proceedings. Duree additionally contends he was entitled to relief from the Kansas judgment pursuant to section 2 — 1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2 — 1401 (West 1998)). For the following reasons, we affirm.

BACKGROUND

A review of the pertinent facts on appeal reveals that DAI, a national franchiser of Subway sandwich shops, instituted litigation in 1990 in the state district court of Kansas against two of its franchise owners, Nancy Kessler and Dane Banks, to recover unpaid franchise royalties and arrearages on real estate and equipment leases. Duree, who was not licensed to practice law in Kansas, was admitted by the trial judge, Judge Janice Russell, pro hac vice on behalf of Kessler and Banks. Duree assumed the role of lead counsel for his clients and, during the course of litigation, he filed a series of counterclaims, culminating in a fifth-amended pleading, against DAI for its alleged fraudulent inducement of Kessler and Banks to purchase their Subway franchise.

Before filing the fifth-amended counterclaim, Duree decided as a matter of “trial strategy” to have an amended 1989 tax return prepared for the Kessler/Banks Subway shop. The original 1989 tax return for the store filed with the Internal Revenue Service reflected gross receipts of $139,369 and a profit of $20,143 during the first 8V2 months of the store’s operations.

Due to the mismanagement of the store’s finances by Kessler and Banks, the store’s bank statements did not accurately reflect the performance of the business. The most accurate materials indicative of true performance were found in the store’s weekly inventoiy and sales reports (WISRs). The figures contained in these WISRs were used by Kessler and Banks to prepare the original tax return.

Duree retained the services of Robert Seiffert, a certified public accountant from St. Louis and friend of Duree who had been engaged by Duree to assist in previous litigation brought against DAI. While knowing of the existence, use and purpose of the store’s WISRs, Seiffert prepared the amended tax return using only the store’s bank records. Duree was similarly aware of the WISRs’ existence and their use and purpose in determining the store’s taxable income.

The 1989 amended tax return prepared by Seiffert reported an operating loss based on gross receipts of $71,543, which was substantially less than the gross receipts of $139,369 reported on the original return. Seiffert knew at the time he prepared the amended return that the bank deposits for the store undoubtedly understated gross receipts. Attached to the amended tax return upon its filing with the IRS was a disclaimer prepared by Seiffert that read he was unable to “determine whether [the] information supplied to [him in preparing the amended return was] complete and accurate.”

Discovery on the Kessler/Banks counterclaim lasted two years, at which time DAI successfully moved for summary judgment upon Judge Russell’s finding that the amended counterclaim completely lacked merit.

DAI followed by moving for sanctions against Duree under Kansas statutes section 60 — 2007 (Kan. Stat. Ann. § 60 — 2007 (Supp. 2000)) (repealed) and section 60 — 211 (Kan. Stat. Ann. § 60 — 211 (1994)) for costs and expenses incurred in defending the fifth-amended counterclaim. After a full evidentiary hearing, Judge Russell concluded that Duree presented the Kessler/Banks counterclaim in bad faith and without a reasonable basis in fact and, on those grounds, awarded DAI $408,445.25 in fees and costs. Judge Russell specifically determined that the 1989 amended tax return was deliberately falsified and manufactured for the sole purpose of supporting the counterclaim. Judge Russell entered a formal written journal entry of judgment reflecting her decision, which was prepared by DATs attorney, on July 19, 1996.

Duree responded by filing a postjudgment motion to alter or amend Judge Russell’s order. Prior to a hearing on that motion, Judge Russell recused herself, citing concerns about her continuing objectivity in light of an ex parte conversation she had with a long-time friend and colleague, John Gerstle. Gerstle visited Judge Russell in her chambers on May 24, 1996, while the judge was in the process of completing the memorandum decision on DATs sanctions motion. During the visit, Judge Russell and Gerstle discussed, inter alia, Gerstle’s then representation of Kessler in an unrelated criminal matter and DATs sanctions action that was pending against Duree. Judge Russell removed herself upon doubts she would be able to rule fairly on the matters raised in Duree’s postjudgment motions.

The matter was reassigned to Judge Lawrence Sheppard. Following the presentation of evidence, including the testimony of Judge Russell in which she explained that her conversation with Gerstle had no influence on her decision and that she had already decided the sanction case before Gerstle’s visit, Judge Sheppard found that Judge Russell had not acted with bias against Duree and, accordingly, denied Duree’s requests for postjudgment relief.

Duree pursued the matter on review and, on December 18, 1998, the Kansas Supreme Court affirmed both Judge Russell’s imposition of sanctions against Duree and Judge Sheppard’s denial of Duree’s posttrial motion. Subway Restaurants, Inc. v. Kessler, 266 Kan. 433, 434, 970 E2d 526, 528 (1998). The court initially reviewed Judge Sheppard’s ruling and addressed Duree’s contention that Judge Russell’s failure to recuse herself immediately after her ex parte communication with Gerstle denied him due process of law because that conversation adversely affected Judge Russell’s ability to rule objectively and “unquestionably influenced” her decision to grant DATs motion. The court found Duree’s claim without merit, finding that the evidentiary record unequivocally demonstrated that Judge Russell acted impartially in rendering her decision. Subway, 266 Kan. at 440, 970 E2d at 532.

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Cite This Page — Counsel Stack

Bluebook (online)
745 N.E.2d 1270, 319 Ill. App. 3d 1032, 253 Ill. Dec. 736, 2001 Ill. App. LEXIS 137, Counsel Stack Legal Research, https://law.counselstack.com/opinion/doctors-associates-inc-v-duree-illappct-2001.