After Dismissing Appeal For Lack of Jurisdiction, Appellate Court Admonishes Attorney for “Wild And Unsubstantiated” Statements Made in Brief Aimed at Court and Opposing Counsel

June 18, 2018 3:24 PM | Anonymous member (Administrator)

By Katherine A. Grosh

Levin Ginsburg

In Board of Managers of Northbrook Country Condo. Ass'nv. Spiezer, the Board of the Northbrook Country Condominium Association filed a forcible entry and detainer action against June Spiezer, as trustee of the June Spiezer Revocable Trust, seeking possession and common expenses owed on her condominium unit. 2018 IL App (1st) 170868, ¶¶ 1, 6. After the trial court entered a default judgment and order of possession in the Board’s favor, her son, Joseph Spiezer, successfully moved to vacate the default judgment and order of possession. Id. at ¶ 6.  Joseph then moved to quash service, which the trial court denied, finding that Joseph submitted to the court’s jurisdiction by filing the motion to vacate. Id. at ¶¶ 1, 6. After Joseph, as trustee of the June Spiezer Trust, quitclaimed the condominium unit to himself, the trial court entered another order of possession in favor of the Board, which Joseph timely appealed. Id. ¶¶ 2, 7. That appeal was later dismissed for want of prosecution. Id., citing Board of Managers of Northbrook Country Condominium Ass'n v. Spiezer, No. 1–13–0573 (Aug. 28, 2013) (unpublished summary order under Illinois Supreme Court Rule 23(c)).

Nearly three years later, Joseph filed a section 2-1401 petition to vacate the second order of possession on the grounds that the order was void because his mother was deceased when the complaint was filed, and her beneficiaries were not named as parties to the suit. Id. ¶ 8. After voluntarily withdrawing the section 2–1401 petition, Joseph filed a “motion to intervene” in the forcible entry and detainer case, effectively re-arguing his section 2-1401 petition and asserting that he should be allowed to intervene to present a motion for an accounting and obtain judgment in his favor for rental income the Board received on the property after entry of the order of possession. Id. Following several agreed continuances and a substitution of attorneys for Joseph, Joseph filed another motion seeking an accounting and asking the trial court to vacate the judgment for possession. Id. at ¶ 9. The trial court dismissed Joseph's motions for lack of jurisdiction. Id.

Joseph appealed from the order dismissing his motions and from the order denying his motion to reconsider, arguing: (i) the trial court had jurisdiction to rule on his motions, and (ii) the order of possession was void and the complaint should be dismissed. Id. at ¶¶ 3, 9.

The Appellate Court found that neither Supreme Court Rule 303 nor the doctrine of revestment conferred jurisdiction over Joseph’s appeal. Id. at ¶ 11. “Having let his appeal on these issues lapse,” the Appellate Court stated, “Joseph cannot exhume his case by motion, and we must dismiss.” Id. at ¶ 3.  The Court reasoned:

"Joseph argues that the trial court had jurisdiction to address the merits of his motion to vacate the January 16, 2013, order of possession because 'a void order may be attacked at any time or in any court, either directly or collaterally.' Joseph asserts the order of possession was void because the Board failed to properly serve the trust, trustees, or beneficiaries. But in 2012, the trial court denied Joseph's motion to quash service, finding that he submitted to the court's jurisdiction by filing the motion to vacate its first order of possession. The trial court entered a second order of possession, and Joseph timely appealed. This court then dismissed the appeal for want of prosecution. Spiezer, No. 1–13–0573." Id. at ¶ 13.

Notwithstanding Joseph’s timely appeal from the order of possession, the Appellate Court characterized Joseph’s attempt to file motions to vacate three years later as “an end-run around his long abandoned appeal.” Id. at ¶ 14. Citing case law holding that where an appeal is dismissed, a party may not file a section 2-1401 petition in the trial court to circumvent the requirements of Rule 303, the Appellate Court found that Joseph’s motion to vacate the order of possession filed in the trial court “does not create a right to appeal under Rule 303 nor … provide us with any other rule that permits him to relitigate issues already decided in 2013 and already timely appealed, albeit dismissed for want of prosecution.” Id.

The Appellate Court’s analysis concluded with a brief review of the revestment doctrine, which applies only in certain “limited circumstances” not applicable here, i.e., where both parties “(1) actively participate in the proceedings, (2) fail to object to the untimeliness of the late filing, and (3) assert positions that make the proceedings inconsistent with the merits of the prior judgment and support the setting aside of at least part of that judgment.” Id. at ¶ 15, citing People v. Bailey, 2014 IL 115459, ¶ 25.

As an aside to the jurisdiction issues, the Appellate Court pointed out that Joseph's attorney’s brief “disparage[d] opposing counsel and ma[de] a number of statements that call into question the trial and appellate court's integrity.” 2018 IL App (1st) 170868, at ¶ 4. Specifically, throughout his opening and reply briefs, Joseph’s attorney called her opposing counsel’s arguments “incoherent,” “bizarre,” “nauseating,” “nonsensical,” and a “word salad.” The Appellate Court stated: “His remarks serve no purpose other than to demean or insult the other side. We expect all attorneys to behave with respect and civility in their written as well as oral interactions with opposing counsel and with the court.” Id. at ¶ 18. Because of the “acerbity of his statements,” including what the Appellate Court deemed “poisonous darts [aimed] at this court,” which went so far as to accuse the courts of ignorance and corruption, and his past behavior before the appellate court, Joseph was ordered to show cause why Rule 375 sanctions should not be imposed for his statements which “flout the norms of proper discourse before the appellate court.” Id. at ¶¶ 19-22.

In a Supplemental Opinion issued in the wake of the show cause order, the Appellate Court noted that Joseph’s lawyer failed to respond. Finding that he waived his right to respond, the Court sanctioned him by requiring him to (i) pay a fine to the Clerk of the First Appellate District and (ii) attend a minimum of six hours of civility and professionalism courses, and repeating the words of U.S. Supreme Court Chief Justice Warren Burger, stated: “[L]awyers who know how to think but have not learned how to behave are a menace and a liability, not an asset, to the administration of justice.” 2018 IL App (1st) 170868, at ¶¶ 26-27, citing Warren E. Burger, The Necessity For Civility, 52 F.R.D. 211, 215 (1971). The Appellate Court continued: “We are not dealing with a self-represented litigant here, but a licensed and experienced attorney who should know what constitutes the limits of proper argument. The statements addressed in the show cause order are not argument, but accusations and wild and unsubstantiated accusations at that. To let them pass without admonishment would be perceived as condoning [those] accusations, and serve to undermine the judiciary's legitimacy, authority, and persuasiveness in the minds of the public and his client” 2018 IL App (1st) 170868, at ¶ 26. The Court ordered that the clerk send a copy of the opinion to the Attorney Registration and Disciplinary Commission. Id. at ¶ 28.

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