McCarthy v. Taylor

2019 IL 123622

IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS

(Docket No. 123622)

GERALD S. McCARTHY, Appellee, v. ROZLYN TAYLOR et al.
(Marvin Gray, Appellant).

Opinion filed June 20, 2019.—Modified upon denial of rehearing October 1,
2019.

JUSTICE KILBRIDE delivered the judgment of the court, with opinion.

Justices Thomas, Burke, and Theis concurred in the judgment and opinion.

Chief Justice Karmeier concurred in part and dissented in part, with opinion.

Justice Garman concurred in part and dissented in part, with opinion.

Justice Neville took no part in the decision.

OPINION

¶1 In this appeal, we address, as a matter of first impression, whether a court may
impose sanctions in the form of attorney fees under Illinois Supreme Court Rule
137(a) (eff. July 1, 2013) against a plaintiff to compensate an attorney defending
himself against a frivolous cause of action. Here, plaintiff and defendant are both
experienced licensed attorneys who proceeded pro se in the action below.
¶2 Plaintiff, Gerald S. McCarthy, filed a complaint against defendant, Marvin
Gray. Plaintiff’s complaint was dismissed, and the Cook County circuit court
entered an order imposing Rule 137 sanctions against him, in favor of defendant.
Plaintiff appealed, arguing that the circuit court erred in dismissing his tortious
interference claim and issuing Rule 137 sanctions. The appellate court affirmed the
dismissal of plaintiff’s tortious interference claim and the finding that plaintiff
violated Rule 137 in filing that frivolous claim, but it reversed the circuit court’s
finding that defendant was entitled to attorney fees and vacated that award.
McCarthy v. Abraham Lincoln Reynolds, III, 2006 Declaration of Living Trust,
2018 IL App (1st) 162478.1 We reverse that part of the appellate court judgment
vacating defendant’s attorney fee award and remand for further proceedings
consistent with this opinion. The remainder of the appellate court’s judgment is
affirmed.

¶3 BACKGROUND

¶4 In 2006, Abraham Lincoln Reynolds III created and executed the “A. L.
Reynolds III 2006 Declaration of Living Trust,” naming himself as the trustee.
Cherie Coles, the romantic interest of Reynolds, was named as successor trustee.
Plaintiff was appointed as the second successor trustee. The trust granted 10% of
the residuary estate to plaintiff, 80% to Coles, and 10% to Elaine Lawell. If Coles
predeceased Reynolds, however, her 80% share would go to plaintiff, and
plaintiff’s 10% share “shall [be] extinguished and be given to Reverend Wayne
Reynolds, Senior.” The schedule of property attached to the trust document
included bank accounts, savings bonds, a “1996 Mercury Grand Marquee [sic]”
automobile, personal and household items, and a condominium apartment located
in Chicago. Defendant was Reynolds’s attorney who prepared the trust document.

¶5 Coles passed away in 2007. In 2010, Reynolds executed an amendment to the
trust clarifying and augmenting the power of the trust to include the powers to

1
Plaintiff’s complaint duplicatively named the trust as an entity and trustee Rozlyn Taylor in
her trustee and individual capacities. As trustee, Taylor held legal title to the property and bore the
capacity to compromise or contest claims against the trust estate. 760 ILCS 5/4.11 (West 2012); see
Campbell v. Campbell, 2017 IL App (3d) 160619, ¶ 17 (“In a conventional trust, the trustee holds
the legal title to the property and the beneficiary holds the equitable title.” (quoting Restatement
(Third) of Trusts ¶ 2 cmt. d (2003))).

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 borrow money on behalf of the trust and to pledge and encumber property of the
trust. The amendment further provided that “the real property owned by [the trust]
is encumbered or conveyed by [Reynolds] to secure payment” for a “Home Equity
Conversion Mortgage” through Wells Fargo Bank.

¶6 Reynolds committed suicide on December 15, 2012. Defendant contacted
plaintiff after Reynolds’s death and notified him that Reynolds had amended the
trust before his death. Defendant informed plaintiff that Reynolds came to
defendant’s home prior to his suicide and presented defendant with an amended
trust document he “had made in his own handwriting.” The amendments named
Rozlyn Taylor as successor trustee. Reynolds and Taylor had become intimately
involved after Coles’s death. The amendments granted 20% of the residuary estate
to plaintiff, 70% to Taylor, and 10% to Devon Morris. The schedule of property
was amended to delete certain bank accounts and savings bonds as “gone” and
added new bank and individual retirement accounts. The schedule of property also
substituted a 1998 Oldsmobile for the 1996 Mercury.2

¶7 Plaintiff filed a pro se complaint in 2013, in another action that is not the subject
of this appeal, alleging that Reynolds’s amendment to the trust was invalid.
Defendant testified as a witness at the trial. The circuit court ruled against plaintiff,
finding that Reynolds’s handwritten amendment to the trust naming Taylor as the
successor trustee was valid. The appellate court affirmed. McCarthy v. Taylor, 2014
IL App (1st) 132239. On September 26, 2014, plaintiff filed a petition for leave to
appeal with this court. We denied leave to appeal. McCarthy v. Taylor, No. 118293
(Nov. 26, 2014).

¶8 On June 9, 2014, plaintiff filed a pro se five-count complaint, the subject of this
appeal, against Taylor, in her capacity as trustee and individually, and defendant.
In relevant part, plaintiff presented two counts against defendant: (1) alleging
defendant breached his fiduciary duty to plaintiff as a beneficiary of the trust and
(2) alleging defendant tortiously interfered with plaintiff’s share of the trust by
making false statements and presenting misleading evidence against him in the

2
An inventory filed by the trustee in this action indicates the total value of estate assets together
with items in the trust that included the value of the condominium ($88,000, subject to a $44,000
mortgage) to be approximately $105,400, less the mortgage on the condominium, for a value of the
remaining assets totaling approximately $61,400.

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 2013 case. In response, defendant filed a combined motion to dismiss pursuant to
section 2-619.1 of the Code of Civil Procedure (Code) (735 ILCS 5/2-619.1 (West
2012)).

¶9 On February 27, 2015, the circuit court dismissed plaintiff’s tortious
interference claim with prejudice pursuant to section 2-619(a)(4) of the Code (735
ILCS 5/2-619(a)(4) (West 2012)) based on the doctrine of res judicata, because
plaintiff’s action essentially asked the circuit court to relitigate the issues
determined in the 2013 case, namely, the veracity of the handwritten trust
amendment. The court also dismissed plaintiff’s breach of fiduciary duty claim but
on the basis of his failure to present a sufficient claim pursuant to section 2-615 of
the Code (735 ILCS 5/2-615 (West 2012)). Plaintiff was granted leave to amend
his complaint on the breach of fiduciary duty claim.

¶ 10 On March 27, 2015, plaintiff filed an amended complaint containing one count
against defendant for breach of fiduciary duty. Plaintiff alleged defendant had a
duty to act with due care in providing plaintiff with services related to the trust. On
August 25, 2015, the circuit court again dismissed plaintiff’s claim against
defendant, stating:

“McCarthy has not alleged any facts which would establish that Gray owed
him a fiduciary duty. McCarthy has cited no legal authority for the proposition
that a trust attorney owes a fiduciary duty to the trust’s beneficiaries as a matter
of law. Since McCarthy and Gray were not otherwise in privity, McCarthy
would need to allege facts which would show his eligibility for an exception to
the rule. However, McCarthy has failed to allege facts to support that any
contract was entered into for his benefit, or the benefit of all the beneficiaries.
Since McCarthy has failed to make any more than a bare-bones assertion that a
fiduciary duty exists, he has not alleged the essential elements of his cause of
action.”

¶ 11 Defendant then filed a motion seeking sanctions under Illinois Supreme Court
Rule 137 (eff. July 1, 2013), including an award for attorney fees and an award for
costs, against plaintiff. In support of his request for sanctions, defendant alleged
that plaintiff made false statements in his complaint and that he and plaintiff did
not have an attorney-client relationship. Defendant requested sanctions in the
amount of $11,232.55 as a result of having to defend against “plaintiff’s unfounded,

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 fallacious and specious allegations and pleadings.” Defendant later amended the
sanction expense to $12,106.03 for the time expended in defending against the case
as of November 13, 2015.

¶ 12 The circuit court entered an order granting in part and denying in part
defendant’s motion for Rule 137 sanctions. The court found that plaintiff’s cause
of action against defendant for tortious interference was frivolous and, therefore,
subject to Rule 137 sanctions. The court concluded, however, that sanctions were
not appropriate for the breach of fiduciary duty claim. The circuit court later entered
a corrected order clarifying that it found Rule 137 sanctions were warranted only
for the tortious interference claim. The court entered a sanction award in
defendant’s favor for $9907.98, including $102.28 in costs for parking and postage
fees.

¶ 13 Plaintiff appealed, contending that the circuit court erred in dismissing his
tortious interference claim based on res judicata and issuing Rule 137 sanctions.
Plaintiff also contended that the circuit court erred in awarding fees as a sanction
against him in favor of defendant.

¶ 14 The appellate court affirmed the dismissal of plaintiff’s tortious interference
claim and its finding that plaintiff violated Rule 137 in filing that frivolous claim.
However, the appellate court reversed the circuit court’s finding that defendant was
entitled to attorney fees and vacated that award on the basis that a pro se attorney
is not entitled to receive attorney fees. 2018 IL App (1st) 162478. We allowed
defendant’s petition for leave to appeal. Ill. S. Ct. R. 315 (eff. Apr. 1, 2018).

¶ 15 ANALYSIS

¶ 16 Defendant, proceeding pro se, has elected to allow his petition for leave to
appeal to stand as his brief in this case. Ill. S. Ct. R. 315(h) (eff. Apr. 1, 2018).
Although plaintiff proceeded pro se in the circuit court, he subsequently retained
counsel to represent him in the appeal process.

¶ 17 The issue in this appeal is whether a court may impose sanctions in the form of
attorney fees under Illinois Supreme Court Rule 137(a) (eff. July 1, 2013) against
a plaintiff to compensate an attorney defending himself against a frivolous cause of

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 action. Interpretation of the Illinois Supreme Court rules is governed by the same
principles as statutory interpretation. Lake Environmental, Inc. v. Arnold, 2015 IL
118110, ¶ 12; People v. Santiago, 236 Ill. 2d 417, 428 (2010). Our goal is to
ascertain and give effect to the drafters’ intention. People v. Campbell, 224 Ill. 2d
80, 84 (2006). This court begins our interpretation with the language of the rule,
given its plain and ordinary meaning. People v. O’Brien, 197 Ill. 2d 88, 90 (2001).
When the language of the rule is clear and unambiguous, we will apply the rule as
written without resort to further aids of statutory construction. O’Brien, 197 Ill. 2d
at 90-91. “The interpretation of a supreme court rule, like the interpretation of a
statute, is a question of law that we review de novo.” Santiago, 236 Ill. 2d at 428.
“[B]ecause Rule 137 is penal in nature, it is narrowly construed.” Lake
Environmental, 2015 IL 118110, ¶ 12.

¶ 18 Rule 137(a) provides, in relevant part:

“Every pleading, motion or other document of a party represented by an
attorney shall be signed by at least one attorney of record in his individual name,
whose address shall be stated. *** The signature of an attorney or party
constitutes a certificate by him that he has read the pleading, motion, or other
document; that to the best of his knowledge, information, and belief formed
after reasonable inquiry it is well grounded in fact and is warranted by existing
law or in a good-faith argument for the extension, modification, or reversal of
existing law, and that it is not interposed for any improper purpose, such as to
harass or to cause unnecessary delay or needless increase in the cost of
litigation. *** If a pleading, motion, or other document is signed in violation of
this rule, the court, upon motion or upon its own initiative, may impose upon
the person who signed it, a represented party, or both, an appropriate sanction,
which may include an order to pay to the other party or parties the amount of
reasonable expenses incurred because of the filing of the pleading, motion or
other document, including a reasonable attorney fee.” (Emphasis added.) Ill. S.
Ct. R. 137(a) (eff. July 1, 2013).

¶ 19 The plain language of Rule 137 authorizes a court to impose sanctions against
a party or counsel for filing a motion or pleading that is not well grounded in fact;
that is not supported by existing law or lacks a good-faith basis for the modification,
reversal, or extension of the law; or that is interposed for any improper purpose. It

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 is settled that “[t]he purpose of Rule 137 is to prevent abuse of the judicial process
by penalizing claimants who bring vexatious and harassing actions.” Sundance
Homes, Inc. v. County of Du Page, 195 Ill. 2d 257, 285-86 (2001); see also In re
Estate of Wernick, 127 Ill. 2d 61, 77 (1989) (noting that the purpose of section 2-
611 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, ¶ 2-611), the
predecessor to Rule 137, was to “penalize the litigant who pleads frivolous or false
matters, or who brings a suit without any basis in the law”). In other words, the
clear purpose of Rule 137 is to prevent the filing of false and frivolous lawsuits.
Cult Awareness Network v. Church of Scientology International, 177 Ill. 2d 267,
279 (1997).

¶ 20 Nothing in the plain language of Rule 137(a) precludes imposition of a sanction
for filing of a frivolous lawsuit in the form of an award of fees in favor of a pro se
defendant who is also an attorney. The committee comments to Rule 137 also
contain no express intended prohibition on imposing a sanction against a plaintiff
in the form of attorney fees for filing a frivolous lawsuit in favor of a party who is
a pro se attorney. See Ill. S. Ct. R. 137, Committee Comments (adopted June 14,
2013). The parties have not cited any Illinois case, nor has our research revealed
any Illinois case, where a court has considered whether a monetary sanction for
violation of Rule 137(a) may include attorney fees for time spent by a pro se litigant
who is an attorney defending against a plaintiff’s frivolous pleadings. Thus, the
issue here is one of first impression.

¶ 21 In this case, the appellate court relied on this court’s decision in Hamer v. Lentz,
132 Ill. 2d 49 (1989), to conclude that the circuit court did not have authority to
grant attorney fees as a remedy under Rule 137. In Hamer, this court held that an
attorney appearing pro se as the plaintiff in an action brought pursuant to the
Freedom of Information Act (FOIA) (Ill. Rev. Stat. 1987, ch. 116, ¶ 201 et seq.)
was not entitled to attorney fees. Hamer, 132 Ill. 2d at 63. Notably, Hamer involved
the fee-shifting provisions of the FOIA rather than sanctions under Rule 137.

¶ 22 In Hamer, we recognized that the purpose of the fee-shifting provision of the
Illinois FOIA is to ensure its enforcement, and that “is accomplished by removing
the burden of legal fees, which might deter litigants from pursuing legitimate FOIA
actions.” Hamer, 132 Ill. 2d at 61-62. We explained that the fee-shifting provision
was not “intended as either a reward for successful plaintiffs or as a punishment

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 against the government” and that “legal fees do not present a barrier to a pro se
lawyer seeking to obtain information.” Hamer, 132 Ill. 2d at 62. We also recognized
that one of the goals of the Illinois FOIA fee-shifting provision “is to avoid
unnecessary litigation by encouraging citizens to seek legal advice before filing
suit.” Hamer, 132 Ill. 2d at 62. Additionally, we also opined that “[t]he most
effective way to deter abusive fee generation” by unscrupulous lawyers “is to deny
fees to lawyers representing themselves.” Hamer, 132 Ill. 2d at 62-63.

¶ 23 The appellate court acknowledged that there was no Illinois case law applying
Hamer to a Rule 137 motion and that “the purpose of Rule 137 is, in relevant part,
to curb the filing of frivolous pleadings.” 2018 IL App (1st) 162478, ¶ 29. The
appellate court further acknowledged that plaintiff’s tortious interference claim
“was undoubtedly a frivolous cause of action.” 2018 IL App (1st) 162478, ¶ 29.
Nevertheless, the appellate court determined that pro se attorneys are not entitled
to attorney fees under Rule 137. 2018 IL App (1st) 162478, ¶ 29.

¶ 24 The appellate court reasoned that Rule 137 is penal in nature and must be
strictly construed. 2018 IL App (1st) 162478, ¶ 29. The appellate court also relied
heavily on cases involving fee-shifting provisions. See Kay v. Ehrler, 499 U.S. 432,
436-37 (1991) (holding, two years after the Hamer decision, that a pro se attorney
was not entitled to recover attorney fees under 42 U.S.C. § 1988 (1988)); Uptown
People’s Law Center v. Department of Corrections, 2014 IL App (1st) 130161, ¶ 25
(following Hamer and holding that a private entity whose attorneys were salaried
employees was not entitled to an award of attorney fees under Illinois FOIA
because they did not actually incur legal fees); Brazas v. Ramsey, 291 Ill. App. 3d
104, 110 (1997) (holding that nonlawyer pro se litigants are barred from collecting
fees under Illinois FOIA); Aronson v. United States Department of Housing &
Urban Development, 866 F.2d 1, 5 (1st Cir. 1989) (holding that plaintiff, who was
attorney acting pro se, was not entitled to attorney fees under federal FOIA).
Relying on this fee-shifting precedent, the appellate court reversed the circuit
court’s finding that defendant was entitled to attorney fees under Rule 137 and
vacated that award, holding that a pro se attorney is not entitled to receive attorney
fees under Rule 137. 2018 IL App (1st) 162478.

¶ 25 Following the appellate court’s decision in this case, and while this appeal was
pending, this court issued another decision that relied on the rationale in Hamer.

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 See State ex rel. Schad, Diamond & Shedden, P.C. v. My Pillow, Inc., 2018 IL
122487. In My Pillow, this court held a law firm that brought a qui tam claim under
the Illinois False Claims Act (740 ILCS 175/1 et seq. (West 2012)), using its own
lawyers, was not entitled to an award of attorney fees. My Pillow, 2018 IL 122487,
¶ 37. Section 4(d)(2) of the False Claims Act (740 ILCS 175/4(d)(2) (West 2012))
contains a fee-shifting provision. In My Pillow, this court acknowledged that
“Illinois has long followed the ‘American rule’ regarding the award of attorney
fees.” My Pillow, 2018 IL 122487, ¶ 17. “Under that rule, each party to litigation
must normally bear its own litigation expenses, regardless of who won,” and
“[p]revailing parties are prohibited from recovering their attorney fees from the
losing party absent express authorization by statute or by contract between the
parties.” My Pillow, 2018 IL 122487, ¶ 17.

¶ 26 In My Pillow, we recognized that in Willard v. Bassett, 27 Ill. 37 (1861), our
court expressly rejected the notion that an attorney who represents himself or
herself in a legal proceeding may charge a fee for professional services in
prosecuting or defending the case. My Pillow, 2018 IL 122487, ¶ 22. In Willard,
the issue concerned whether an attorney, who is the administrator of an estate, is
entitled to an allowance against the estate for his professional services. The court
recognized in Willard that the attorney was entitled to reasonable compensation for
administering the estate but that he was not entitled to an additional fee for legal
services rendered by him. Willard, 27 Ill. at 38. My Pillow quoted Willard’s
rationale:

“ ‘To allow him to become his own client and charge for professional services
in his own cause, although in a representative or trust capacity, would be
holding out inducements for professional men to seek such representative
place[s] to increase their professional business, which would lead to most
pernicious results. This is forbidden by every sound principle of professional
morality as well as by the policy of the law.’ ” My Pillow, 2018 IL 122487, ¶ 22
(quoting Willard, 27 Ill. at 38).

¶ 27 My Pillow recognized that “our court has continued to adhere to the principle
that it is contrary to the public policy of Illinois to allow an attorney ‘to become his
own client and charge for professional services in his own cause.’ ” My Pillow,
2018 IL 122487, ¶ 23 (quoting Cheney v. Ricks, 168 Ill. 533, 549 (1897) (following

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 Willard in holding that where one of the complainants in a partition suit was an
attorney who prosecuted the suit, he was not entitled to recover attorney fees)). My
Pillow relied on Hamer in determining, “[t]o the extent that a lawyer elects to
proceed pro se in a case for which the legislature has provided statutory
authorization for an award of attorney fees, he or she therefore has no attorney fees
to claim and is not entitled to an award of fees under the statute.” My Pillow, 2018
IL 122487, ¶ 24 (citing Hamer, 132 Ill. 2d at 62-63). We also recognized that in
Kay, 499 U.S. at 437-38, the United States Supreme Court reached the same
conclusion when applying a federal fee-shifting statute. My Pillow, 2018 IL
122487, ¶ 24. We noted in My Pillow that Hamer has been applied in other contexts.
See, e.g., Kehoe v. Saltarelli, 337 Ill. App. 3d 669, 678 (2003) (pro se attorney not
entitled to an award of attorney fees in defending against malpractice action); In re
Marriage of Pitulla, 202 Ill. App. 3d 103, 117-18 (1990) (rule that attorneys
appearing pro se are not entitled to recover attorney fees cited with approval in
dissolution action); In re Marriage of Tantiwongse, 371 Ill. App. 3d 1161, 1164
(2007) (law firm not entitled to an award of attorney fees for work done by its own
lawyers in collecting fees owed to firm by client).

¶ 28 We find that Hamer and its progeny are distinguishable because those cases did
not involve Rule 137 sanctions to compensate a pro se attorney defending himself
against frivolous claims. The essential underlying policy of Rule 137 of
discouraging frivolous or harassing litigation is furthered by imposing sanctions in
the form of an award of attorney fees in favor of a pro se attorney defending against
meritless claims. See Sundance Homes, 195 Ill. 2d at 285-86; In re Estate of
Wernick, 127 Ill. 2d at 77. Here, defendant did not initiate or otherwise invite the
frivolous pleadings. Nevertheless, defendant was forced to defend against the
frivolous claims filed by plaintiff, also an attorney. If the policy of Rule 137
sanctions is to deter frivolous pleading and litigation, it would be illogical to deny
attorney fees to pro se attorneys defending themselves in such matters.

¶ 29 The policy considerations underlying our decisions in Hamer and My Pillow on
fee-shifting provisions are not present when a court awards sanctions under Rule
137. Here, sanctions are intended as a punishment against the party who abuses the
judicial process, not as a reward to a successful pro se attorney who is defending
against a frivolous lawsuit. The concern articulated in Hamer and My Pillow on
deterring abusive fee generation by lawyers who initiate litigation is not present

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 when sanctions are imposed against a plaintiff who files frivolous pleadings. This
case does not involve awarding attorney fees to an attorney bringing suit as a
plaintiff in his own name. Rather, defendant was forced to expend his time
defending a frivolous lawsuit, as well as pursuing sanctions clearly provided for by
Rule 137.

¶ 30 Other courts addressing this issue have similarly held that a pro se attorney
defendant may be awarded attorney fees as part of a sanction for efforts in
defending against a frivolous complaint. See Burke v. Elkin, 51 N.E.3d 1287, 1288
(Ind. Ct. App. 2016) (holding that, “[d]espite the American Rule, *** a party to a
civil action may recover attorney fees incurred defending against a frivolous action
or an action litigated in bad faith” and recognizing that Indiana had adopted the
majority rule permitting an attorney representing himself to recover an award of
attorney fees for time and effort spent defending against a frivolous lawsuit); Stiles
v. Kearney, 277 P.3d 9 (Wash. Ct. App. 2012), review denied, 287 P.3d 11 (Oct.
10, 2012) (table) (pro se defendant who is an attorney can receive attorney fees for
his effort in defending against complaint as part of sanction imposed against
plaintiff for violation of rule in filing lawsuit); Keaty v. Raspanti, 2003-1080, p. 8
(La. App. Cir. 2/4/04); 866 So. 2d 1045 (“To hold that an attorney who must defend
himself or herself cannot recover reasonable attorney’s fees, including his or her
own lost time and expenses in defending himself or herself [against frivolous
litigation], would frustrate the purpose of the statute [to deter frivolous litigation]
and possibly reward those who persist in maintaining litigation such as that found
in this case.”); Friedman v. Backman, 453 So. 2d 938 (Fla. Dist. Ct. App. 1984)
(pro se defendant lawyer is entitled to attorney fees under statute allowing sanctions
against plaintiff for filing frivolous pleadings). We find these cases persuasive.

¶ 31 We reiterate that “[t]he purpose of Rule 137 is to prevent abuse of the judicial
process by penalizing claimants who bring vexatious and harassing actions.”
Sundance Homes, 195 Ill. 2d at 286. To hold that an attorney cannot recover
reasonable attorney fees in defending himself against frivolous litigation would
clearly frustrate the purpose of Rule 137 and unfairly reward those who persist in
maintaining frivolous litigation.

¶ 32 We hold that, under Rule 137, a court is authorized to impose sanctions in the
form of attorney fees under Illinois Supreme Court Rule 137(a) (eff. July 1, 2013)

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 against a plaintiff to compensate an attorney defending himself against a frivolous
cause of action. Accordingly, we reverse that part of the appellate court decision
holding to the contrary and remand with directions to conduct further proceedings
on the issue of the proper amount of Gray’s circuit court attorney fee award. That
part of the appellate court decision affirming the circuit court’s dismissal of
plaintiff’s tortious interference claim and finding that plaintiff violated Rule 137 is
affirmed.

¶ 33 In his prayer for relief on his petition for leave to appeal, defendant also requests
that this court impose sanctions against plaintiff under Illinois Supreme Court Rule
375 (eff. Feb. 1, 1994) in the form of damages and the reasonable costs of defending
the instant “frivolous” appeal. Defendant requests reasonable attorney fees,
presumably for plaintiff taking an appeal from the trial court’s ruling. Rule 375(b)
provides that “[a] reviewing court may impose a sanction upon a party or an
attorney for a party upon the motion of another party or parties, or on the reviewing
court’s own initiative where the court deems it appropriate.” Ill. S. Ct. R. 375(b)
(eff. Feb. 1, 1994). Nothing in the record indicates that defendant filed any motion
with the appellate court requesting sanctions against plaintiff for filing a frivolous
appeal. Nonetheless, we remand this matter to the appellate court for further
proceedings on this matter.

¶ 34 III. CONCLUSION

¶ 35 For the above reasons, we reverse that part of the appellate court judgment
vacating Gray’s attorney fee award and remand for further proceedings consistent
with this opinion.

¶ 36 Affirmed in part, reversed in part, and remanded with directions.

¶ 37 CHIEF JUSTICE KARMEIER, concurring in part and dissenting in part:

¶ 38 I agree with Justice Garman’s analysis insofar as she concludes that an award
of “attorney fees” is inappropriate in this circumstance because there is no attorney-
client relationship and thus no “attorney fees” have been incurred. I also agree with

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 her assessment of what the majority is actually trying to accomplish: “[G]iven that
a pro se attorney does not incur legal fees, the majority is essentially awarding
‘attorney fees’ to defendant to ‘compensate’ him, not for the fees he incurred to
obtain legal representation, but for the opportunity costs he chose to forgo.” Infra
¶ 64. Without going further, Justice Garman would apparently leave a pro se
defendant to bear the brunt of a plaintiff’s abusive litigation without recompense
and allow the plaintiff to benefit from a defendant’s decision to proceed pro se.
That outcome seems to me inconsistent with the purpose and language of the rule;
that is the result the majority is straining to avoid. “The purpose of Rule 137 is to
prevent abuse of the judicial process by penalizing claimants who bring vexatious
and harassing actions.” Sundance Homes, Inc. v. County of Du Page, 195 Ill. 2d
257, 285-86 (2001); see Ill. S. Ct. R. 137 (eff. July 1, 2013). A pro se defendant is
no less victimized by a vexatious and harassing action because he is pro se, nor is
the abusive plaintiff less deserving of sanction. By focusing on the happenstance
that this defendant is an attorney, and twisting the definition of “attorney fees” to
cover the time the defendant spent away from his practice, the majority’s holding
compensates this defendant and penalizes this plaintiff, but it leaves in analytical
limbo—or worse—all other pro se defendants who are victimized by a plaintiff’s
abuse of the judicial process. On the other hand, although Justice Garman
recognizes that “appropriate sanctions” “may include an order to pay the other party
or parties the amount of reasonable expenses incurred,” it is not clear that she would
allow a pro se defendant to be compensated in an amount that reflects the
“opportunity *** he chose to forgo,” i.e., the loss of livelihood occasioned by the
need to respond to a plaintiff’s vexatious and harassing action. (Emphases omitted.)
Infra ¶ 64. I believe Rule 137 allows for that element of compensation.

¶ 39 Rule 137 uses the phrase “appropriate sanction” broadly. It lists two of the
compensatory items that an order for sanctions “may include”: defendant’s
“reasonable expenses incurred” and “attorney fees.” As our appellate court has
observed, the words “include” or “including” are ordinarily terms of enlargement,
rather than restriction, and indicate that items enumerated are not meant to be
exclusive. Gem Electronics of Monmouth, Inc. v. Department of Revenue, 286 Ill.
App. 3d 660, 667 (1997), aff’d, 183 Ill. 2d 470 (1998); Friends for Murray Center
Inc. v. Department of Human Services, 2014 IL App (5th) 130481, ¶ 22 (“[T]he
word ‘including’ generally does not connote exclusivity, but is ordinarily
interpreted as a term of enlargement.”). This court has interpreted the word

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 “include” in the same manner. In People v. Perry, 224 Ill. 2d 312, 330-31 (2007),
this court expounded upon the meaning of the term at some length:

“According to Black’s Law Dictionary, ‘include’ means:

‘To contain as a part of something. The participle including typically
indicates a partial list . But some drafters use phrases such as including without
limitation and including but not limited to—which mean the same thing.’
(Emphases in original.) Black’s Law Dictionary 777-78 (8th ed. 2004).

The law dictionary refers the reader to the term ‘namely,’ which means:

‘By name or particular mention; that is to say . The term indicates what
is to be included by name. By contrast, including implies a partial list and
indicates that something is not listed.’ (Emphasis in original.) Black’s Law
Dictionary 1049 (8th ed. 2004).

Similarly, the editor of Black’s Law Dictionary observes in another work
that:

‘[I]ncluding is sometimes misused for namely. But it should not be used
to introduce an exhaustive list, for it implies that the list is only partial. In
the words of one federal court, “It is hornbook law that the use of the word
including indicates that the specified list … is illustrative, not exclusive.”
Puerto Rico Maritime Shipping Auth. v. I.C.C., 645 F.2d 1102, 1112 n.26
(D.C. Cir. 1981).’ (Emphases in original.) B. Garner, A Dictionary of
Modern Legal Usage 431 (1995).”

¶ 40 Clearly, the listing of “reasonable expenses” and “attorney fees” in the rule was
not meant to be exhaustive. Indeed, if the drafters of the rule had intended only
“reasonable expenses” and “attorney fees” incurred, the phrase “appropriate
sanctions” would be superfluous. When interpreting supreme court rules, we are
guided by the same principles applicable to the construction of statutes, and that
being the case, we are here obliged to avoid a construction that renders a part of the
rule superfluous or redundant and instead presume that each part of the rule has
meaning. See People v. Salem, 2016 IL 118693, ¶¶ 11, 16.

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¶ 41 If the phrase “appropriate sanctions” is to encompass something more than
“reasonable expenses” and “attorney fees,” and as the point of the rule is to punish
the plaintiff by compensating the defendant for the costs of defending a frivolous
suit, the defendant’s loss of income attributable to that defense would reasonably
be included within the ambit of “appropriate sanctions.” Discretionary imposition
of that element of cost upon a plaintiff who has initiated and perpetuated abusive
litigation, as a means to make an innocent defendant whole—be that defendant an
attorney, doctor, mechanic, or a practitioner of any other vocation—would seem to
be a reasonable application of the rule. Interpreting the rule in this manner validates
the language of the rule and advances its purpose as well. To do otherwise would
allow an abusive plaintiff to benefit from a defendant’s decision to proceed pro se
and limit the circuit court’s ability to mete out egalitarian justice to those who may
well be without the means to hire an attorney.3

¶ 42 Applying the foregoing principles here, defendant is not entitled to “attorney
fees” because, as demonstrated by Justice Garman, there was no attorney-client
relationship and no attorney fees were generated. However, defendant may be
entitled to loss of income attributable to the time he spent away from his practice
defending against this frivolous lawsuit. Those two things may be, but are not
necessarily, the same.

¶ 43 I would reverse the judgment of the appellate court and remand this cause to
the appellate court for consideration of defendant’s request for Illinois Supreme
Court Rule 375 (eff. Feb. 1, 1994) sanctions, directing the appellate court to
thereafter remand to the circuit court for a redetermination of “appropriate
sanctions” consistent with the principles here expressed.

¶ 44 JUSTICE GARMAN, concurring in part and dissenting in part:

¶ 45 The majority concludes, as a matter of first impression, that a court may impose
sanctions in the form of attorney fees under Illinois Supreme Court Rule 137(a)

3
We should bear in mind that the imposition of Rule 137 sanctions is a matter within the
discretion of the trial court. Lake Environmental, Inc. v. Arnold, 2015 IL 118110, ¶ 16. In the event
a defendant decides to retain counsel and the trial court determines that plaintiff’s conduct is not so
egregious as to warrant the imposition of sanctions, the defendant will be liable for his own attorney
fees, which may amount to much more than his own loss of income.

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 (eff. July 1, 2013) against a plaintiff to compensate an attorney defending himself
against a frivolous action. For the following reasons, I respectfully dissent.

¶ 46 First, as this court explained in State ex rel. Schad, Diamond & Shedden, P.C.
v. My Pillow, Inc., “the real question before us is not what the law should permit
but rather what the law, as written, does permit.” 2018 IL 122487, ¶ 34. Rule 137
must be “strictly construed when determining what persons come within [its]
operation.” See id. My Pillow demonstrates:

“Applying such a construction to section 4(d)(2) of the Act, we see nothing
therein to suggest that when the General Assembly authorized recovery of
‘reasonable attorneys’ fees and costs’ in qui tam actions, it intended to change
the established common-law rule in Illinois that litigants who choose to
represent themselves rather than retain counsel incur no compensable attorney
fees even if they are themselves lawyers and even if they have brought the
action on behalf of their own law firm.” Id.

¶ 47 Here, the majority attributes little value to the fact that, for over 150 years,
pro se attorneys have not been permitted to obtain attorney fees for their own work.4
See id. ¶ 22. Accordingly, if the drafters intended the term “attorney fees”5 to be
interpreted more broadly, i.e., to apply in the context of Rule 137 sanctions where
no attorney-client relationship exists and thus no attorney fees have been incurred,6
the drafters most likely would have made such an understanding explicit, either in
the plain language of the rule or in a committee comment.

¶ 48 Second, the majority dismisses the appellate court’s reasoning because it relied
upon cases involving fee-shifting provisions. The majority also states that the
“concern articulated in Hamer and My Pillow on deterring abusive fee generation

4
Although attorney fees were awarded to a pro se attorney in a single appellate court case,
Department of Conservation v. Lawless, 100 Ill. App. 3d 74 (1981), the reasoning is unpersuasive,
particularly in light of this court’s later decisions in Hamer v. Lentz, 132 Ill. 2d 49 (1989), and My
Pillow, 2018 IL 122487.
5
Black’s Law Dictionary defines “attorney’s fee” as “[t]he charge to a client for services
performed for the client, such as an hourly fee, a flat fee, or a contingent fee.” Black’s Law
Dictionary 154 (10th ed. 2014).
6
Black’s Law Dictionary defines “pro se” as “[f]or oneself; on one’s own behalf; without a
lawyer” or as “[o]ne who represents oneself in a court proceeding without the assistance of a
lawyer.” Black’s Law Dictionary 1416 (10th ed. 2014).

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 by lawyers who initiate litigation is not present.” Supra ¶ 29; see Hamer v. Lentz,
132 Ill. 2d 49 (1989); My Pillow, 2018 IL 122487. Interestingly, however, the
appellate court based its holding upon other policy reasons: (1) that the potential to
recover attorney fees enables potential plaintiffs to obtain competent and
independent counsel and, in a similar vein, an attorney who proceeds pro se is
deprived of independent judgment; (2) that, in Kay v. Ehrler, 499 U.S. 432, 437 n.7
(1991), the United States Supreme Court indicated in a footnote that the existence
of an attorney-client relationship is critical in establishing an objective assessment
of meritorious claims; (3) that, “as in Hamer, courts consistently have considered
the fact that pro se attorneys are not burdened by legal fees, such that the fees create
a barrier to seeking representation”; and (4) that “courts have highlighted that
nonattorney pro se litigants are not entitled to fees for the time they spend litigating
their own cases; therefore, pro se attorneys should not be treated differently.”
McCarthy v. Abraham Lincoln Reynolds, III, 2006 Declaration of Living Trust,
2018 IL App (1st) 162478, ¶ 30.

¶ 49 It is not made clear in the majority opinion how not one of the enumerated
policy reasons above carry over, in whole or in part, to the Rule 137 context. Also,
the majority disregards the appellate court’s decision due to a concern—abusive fee
generation—to which the appellate court attached no weight.

¶ 50 Third, and in connection with my first concern, Hamer and My Pillow both
clearly observed that a pro se attorney does not incur legal fees. Hamer, 132 Ill. 2d
at 62 (“A lawyer representing himself or herself simply does not incur legal fees.”);
My Pillow, 2018 IL 122487, ¶ 31 (“in this case, there was nothing that could fairly
be characterized as an attorney-client relationship from which an obligation or need
to pay an attorney fee might arise”). Courts and litigants are left with no explanation
as to how pro se attorneys incur or become liable to pay attorney fees in the Rule
137(a) context but not pursuant to the provisions at issue in Hamer or My Pillow.
See Ill. S. Ct. R. 137(a) (eff. July 1, 2013) (“reasonable expenses incurred because
of the filing of the pleading, motion or other document, including a reasonable
attorney fee”).

¶ 51 Fourth, the majority defers to out-of-state case law holding “that a pro se
attorney defendant may be awarded attorney fees as part of a sanction for efforts in
defending against a frivolous complaint.” Supra ¶ 30; see Burke v. Elkin, 51 N.E.3d

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 1287 (Ind. Ct. App. 2016); Stiles v. Kearney, 277 P.3d 9 (Wash. Ct. App. 2012);
Keaty v. Raspanti, 2003-1080, p. 8 (La. App. 4 Cir. 2/4/04); 866 So. 2d 1045;
Friedman v. Backman, 453 So. 2d 938 (Fla. Dist. Ct. App. 1984). I do not find these
cases persuasive.

¶ 52 As the majority notes, Burke held that “ ‘a party to a civil action may recover
attorney fees incurred defending against a frivolous action or an action litigated in
bad faith.’ ” Supra ¶ 30 (quoting Burke, 51 N.E.3d at 1288). For this proposition,
Burke cited Ziobron v. Crawford, 667 N.E.2d 202 (Ind. Ct. App. 1996), another
Indiana Court of Appeals decision. Burke, 51 N.E.3d at 1288-89. Ziobron, in turn,
distinguished Kay and another Indiana case on the basis that those cases involved
attorney fees that were authorized by a fee-shifting statute. 667 N.E.2d at 207-08.
Ziobron noted that it was not aware of another Indiana case pertaining to attorney
fees sought in the context of a malicious prosecution case. See id. at 208. However,
the Ziobron court explained its holding:

“the majority rule permits an attorney representing himself to recover an award
of attorney’s fees for his time and effort in defending a frivolous lawsuit.
Friedman v. Backman, 453 So. 2d 938 (Fla.App. 1984); Quick & Reilly, Inc. v.
Perlin, 411 So.2d 978 (Fla.App. 1984). The rationale of this rule is, ‘as the
saying goes, “a lawyer’s time and advice are his stock in trade.” ’ Friedman,
453 So.2d at 938.” Id.

¶ 53 In Marion County Election Board v. Bowes, the Indiana Court of Appeals held
that a pro se attorney was not entitled to recover attorney fees or litigation expenses
under the Indiana Access to Public Records Act for missed work and other
employment opportunities. Marion County Election Board v. Bowes, 53 N.E.3d
1203 (Ind. Ct. App. 2016). Marion reasoned,

“despite prevailing on the merits, Bowes is not entitled to recover attorney fees
as there are none to recover. Even if a pro se litigant happens to be a lawyer, no
attorney fees are earned unless independent counsel is engaged. As the United
States Supreme Court recognized in Kay, ‘the word “attorney” assumes an
agency relationship,’ one that cannot exist between an appellant and himself.
[Citation.] The Kay Court highlighted the point by noting several definitions of
the word ‘attorney,’ all of which emphasize the agency aspect[.]” Id. at 1207.

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¶ 54 Nonetheless, the pro se attorney in Marion argued in part that he was entitled
to attorney fees based on the court’s earlier decision in Ziobron. Id. at 1209. Though
it did not overrule Ziobron, Marion called Ziobron’s reasoning into question by
noting that

“[a]lthough another panel of this Court awarded attorney fees in Ziobron, we
first disagree with the Ziobron Court’s characterization of Ziobron’s potential
compensation as ‘attorney’s fees.’ [Citation.] Again, use of the word ‘attorney’
indicates an agency relationship between lawyer and client, which did not exist
in Ziobron.”Id.

¶ 55 Moving on, the majority cites Stiles, 277 P.3d 9. There, the Washington Court
of Appeals relied on its decision in Leen v. Demopolis, 815 P.2d 269 (Wash. App.
1992), which held that an attorney appearing pro se could recover attorney fees
because pro se attorneys must take time from their practices to prepare and appear
just like any other attorney. Stiles, 277 P.3d at 16 (citing Leen, 815 P.2d at 277). In
Stiles, the Washington Court of Appeals rejected the argument that it should instead
follow Kay, reasoning that Kay was distinguishable, as it involved the Civil Rights
Attorney’s Fees Awards Act of 1976 (42 U.S.C. § 1988 (2006)). Id.

¶ 56 As to Keaty, a Louisiana Court of Appeal observed in a footnote that:

“We note that to permit a lawyer to recover his or her fees representing
himself or herself in a case for article 863 sanctions while not permitting a non-
lawyer to recover the time and expenses that he or she has incurred while
defending a sanctionable pleading, may seem unfair. That issue is not before us
and is reserved for another day; however, we do not read article 863 as
prohibiting a non-lawyer from recovering his or her lost time and expenses in
an article 863 matter.” Keaty, 2003-1080, p. 8 n.6 (La. App. 4 Cir. 2/4/04); 866
So. 2d 1045.

¶ 57 Though dicta, Keaty clearly acknowledged that its holding could be perceived
as unjust. Keaty also did not explain how its reading of article 863 could be such
that a pro se nonlawyer could recover attorney fees.

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¶ 58 Finally, the majority cites Friedman, 453 So. 2d 938. Friedman stated that it
seemed logical to award attorney fees to a pro se attorney because, “as the saying
goes, ‘a lawyer’s time and advice are his stock and trade.’ ” Id. at 938.

¶ 59 The clear theme running through these cases is the belief that a pro se attorney
should be compensated for the time spent being “forced to defend” against a
frivolous action. I disagree with this line of reasoning for several reasons.

¶ 60 Most importantly, the majority’s holding impermissibly carves out a special
exception for attorneys. Hamer observed that other courts, concluding that pro se
lawyers in Freedom of Information Act (FOIA) (Ill. Rev. Stat. 1987, ch. 116, ¶ 201
et seq.) cases are not permitted to obtain attorney fees, observed that there is “ ‘no
good reason for treating pro se lawyers any differently than pro se laypersons.’ ”
132 Ill. 2d at 58 (quoting Aronson v. United States Department of Housing & Urban
Development, 866 F.2d 1, 5 (1st Cir. 1989)); Falcone v. Internal Revenue Service,
714 F.2d 646, 647 (6th Cir. 1983). Although Hamer declined to address this
consideration, I believe that this matter deserves due consideration, as the majority
now concludes—for the first time—that a pro se attorney is entitled to attorney
fees. See Hamer, 132 Ill. 2d at 58-59 (“Whether a nonlawyer pro se litigant may
recover attorney fees under the Illinois FOIA is a question that is not before us, and
we express no opinion on the matter.”).

¶ 61 As Aronson noted:

“Nor are we impressed by the argument that a pro se lawyer should be
awarded fees because of the time he/she must spend on the case. The inference
is that the time so spent means the sacrifice of fees he/she would otherwise
receive. But a lay pro se must also devote time to the case. If such a litigant is
a professional person, such as an author, engineer, architect, etc. the time
expended may also result in loss of income. Lawyers are not the only persons
whose stock in trade is time and advice.” 866 F.2d at 5.

¶ 62 Additionally, Aronson accurately observed that it would be unseemly to treat
pro se lawyers differently from pro se nonattorneys, because to allow the former
but not the latter to recover fees creates the appearance that courts are “especially
solicitous for the economic welfare of lawyers.” Id. at 6 (“This is not the type of
image that enhances public respect for the bar or judiciary.”); see also Frison v.

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 Mathis, 981 A.2d 57, 63 (Md. Ct. Spec. App. 2009) (“Requiring that an attorney-
client relationship exist before allowing the recovery of attorney fees avoids the
public perception of unfairness in the legal system.”); Trope v. Katz, 902 P.2d 259,
262 (Cal. 1995) (otherwise, it “would in effect create two separate classes of pro se
litigants—those who are attorneys and those who are not—and grant different rights
and remedies to each”); cf. Lolley v. Campbell, 48 P.3d 1128, 1134 (Cal. 2002)
(declining to extend Trope where attorney fees were sought by an indigent
employee who was represented by the labor commissioner). If a plaintiff brings a
frivolous suit against a doctor who elects to proceed pro se, the doctor would be
forgoing the time he could be spending treating sick patients. See Trope, 902 P.2d
at 267.

¶ 63 The majority observes that defendant was “forced to defend” and “forced to
expend his time defending” against the frivolous claim. Supra ¶¶ 28-29. But this
characterization holds true for a pro se nonattorney defendant as well. In both
circumstances, a frivolous action is being brought against both types of pro se
parties. And, both a pro se nonattorney defendant and a pro se attorney defendant
are exercising the choice to defend against frivolous claims pro se and, as a result,
are forgoing the opportunity to spend their time otherwise, e.g., representing clients,
treating patients, etc. Yet, to be eligible for attorney fees, the nonattorney is forced
to incur a “potential out-of-pocket obligation” by retaining counsel, whereas the
pro se attorney would not. See Swanson & Setzke, Chtd. v. Henning, 774 P.2d 909,
913 (Idaho Ct. App. 1989).

¶ 64 Because Rule 137 aims to deter frivolous pleading and litigation, the majority
concludes that “it would be illogical to deny attorney fees to pro se attorneys
defending themselves in such matters” (supra ¶ 28) and holds that “a court is
authorized to impose sanctions in the form of attorney fees under Illinois Supreme
Court Rule 137(a) (eff. July 1, 2013) against a plaintiff to compensate an attorney
defending himself against a frivolous cause of action” (supra ¶ 32). However, Rule
137 provides for “appropriate sanction[s], which may include an order to pay the
other party or parties the amount of reasonable expenses incurred because of the
filing of the pleading, motion or other document, including a reasonable attorney
fee.” (Emphases added.) Ill. S. Ct. R. 137(a) (eff. July 1, 2013). Based on the plain
language of the rule, other options exist for sanctioning a party who violated the
provision. The word “appropriate” connotes a sanction that is proper in a given

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 circumstance. Further, if the rule itself provides a judge with discretion not to award
attorney fees, it is unclear how the denial of attorney fees in one circumstance
would be illogical or defeat Rule 137’s purpose. Finally, given that a pro se attorney
does not incur legal fees, the majority is essentially awarding “attorney fees” to
defendant to “compensate” him, not for the fees he incurred to obtain legal
representation, but for the opportunity costs he chose to forgo.

¶ 65 For these reasons, I respectfully dissent.

¶ 66 JUSTICE NEVILLE took no part in the consideration or decision of this case.

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