Stewart v. Lathan

FIFTH DIVISION
May 28, 2010

No. 1-09-2384

KARON STEWART, ) Appeal from the
) Circuit Court of
Plaintiff and Counterdefendant-Appellant, ) Cook County.
)
(Laura A. Holwell, ) No. 08 M1 17808
)
Appellant,) ) The Honorable
) Pamela Hill Veal and
v. ) Martin P. Moltz,
) Judges Presiding.
DAVID LATHAN, )
)
Defendant and Counterplaintiff-Appellee. )

PRESIDING JUSTICE TOOMIN delivered the opinion of the court:

Judges who conduct ex parte proceedings without valid notice to the parties act at their

peril. Here, we determine that judgment entered on a counterclaim together with sanctions

imposed against absent counsel was fatally flawed as lacking the essential requisites of due

process.

Plaintiff, Karon Stewart, filed suit against David Lathan for property damage stemming

from an automobile accident. Following trial, which was concluded favorably for defendant,

plaintiff and counsel learned of a counterclaim filed by Lathan pro se. In the wake of that

discovery, several orders were entered concerning scheduling and eventual hearing of the

counterclaim. Ultimately, judgment was granted to Lathan on the counterclaim and imposing
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sanctions on Stewart’s attorney, Laura A. Holwell. Stewart now appeals, contending the trial

court erred in conducting a hearing on the counterclaim in the absence of notice to herself or

counsel1. As Lathan has failed to file a responsive brief, pursuant to Supreme Court Rule 343(a)

(210 Ill. 2d R. 343(a)), we resolve the matter solely upon the arguments presented by Stewart.

See People ex rel. Director of Corrections v. Booth, 215 Ill. 2d 416, 422, 830 N.E.2d 569, 572

(2005). For the following reasons, we vacate the judgment and remand for further proceedings.

BACKGROUND

The proceedings below emanate from a subrogation suit filed in the name of Karon

Stewart against David Lathan based upon an automobile accident. In response, Lathan filed his

pro se appearance, along with a counterclaim, alleging in toto: “Ms. Stewart was blatantly

speeding way over the limit and hit my car on the left rear end.” The record does not reflect that

the counterclaim was ever served upon Stewart or that notice of its filing was entered of record.

Thereafter, counsel appeared on Lathan’s behalf solely on the underlying matter, absent any

knowledge of the counterclaim.

Following a bench trial on August 3, 20092, judgment was entered in favor of Lathan. It

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Stewart’s filings, commencing with her notice of appeal, include the name Laura A.

Holwell as a plaintiff and counterdefendant. This is facially inaccurate. Holwell, one of

Stewart’s attorneys, was not a party to the underlying proceedings, but is now a party to this

appeal by virtue of being sanctioned by the trial court.
2
The facts set forth herein are based upon Stewart’s version of events and supplemented

by the Judge Pamela Hill Veal’s “Facts, Findings, Decision and Order,” entered on August 11,

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was then for the first time brought to the attention of the court and counsel that Lathan had filed a

counterclaim. However, at that point, plaintiff was no longer present. Plaintiff’s original trial

counsel explained to the court that he never received the counterclaim. Lathan’s counsel also

noted that he too was unaware of its existence.

The court set the counterclaim for hearing and prove-up on August 10, 2009. Stewart

describes this as taking place “[o]ver objection.” Judge Veal’s August 11 order stated:

“After unprofessional conduct and demands for a re-trial before another judge

from the plaintiff’s attorney, the court indicated there would be a trial/hearing on the

damages set for Monday, August 10, 2009 ***. The court denied the plaintiff’s

attorney’s request for a new trial before another judge. The hearing was set over the

objections of the plaintiff’s attorney.”

On August 7, 2009, Stewart’s new counsel, Holwell, appeared on an emergency motion

to continue the hearing set for August 10, 2009, to adequately prepare for resolution of the

counterclaim. Notice of the emergency motion was sent to Stewart’s original counsel, as well as

Lathan’s trial attorney. The motion was heard before Judge Moltz, sitting in Judge Veal’s stead,

who, as noted, was presiding over the matter. Stewart’s motion was granted and the cause was

continued to August 28, 2009, for status.

Lathan, apparently unaware of the emergency motion, appeared in court on the originally

scheduled court date of August 10, 2009. In response, “Judge Veal conference [sic] with Judge

Moltz.” While the substance of that discussion is not of record, apparently Judge Moltz was

2009 (August 11 order).

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prompted to call Stewart’s attorney, Holwell, leaving a message for her to contact him.

Thereafter, according to Judge Veal’s order, “Judge Moltz notified Judge Veal that Atty. Holwell

would appear in court on August 11, 2009 at 11:00 p.m. [sic] and that there was a possibility that

the August 07, 2009 order would be vacated.” The order further stated that Holwell “relied on

someone else to notify the defendant” that the court date was changed, but did not personally

mail the order to him.

We recognize that Stewart’s version of events of August 10, 2009, differs from the

recitals of Judge Veal’s order. According to Stewart’s brief, Holwell received a call from Judge

Moltz seeking a return call. Thereafter, another attorney from Holwell’s office, Laura DiAndrea-

Iversen, returned Judge Moltz’s call and left him a voicemail message. In substance, Judge

Moltz was informed that Holwell had conferred with the other attorneys of record. They

collectively agreed it was “highly improper that only Ms. Holwell was contacted requesting her

appearance on August 11, 2009.” The message further indicated no counsel of record would

appear until the previously ordered court date of August 28, 2009.

On August 11, 2009, Lathan again appeared in court. According to the August 11 order,

Judge Veal’s clerk attempted to reach Holwell. No mention is made of any efforts to reach

Lathan’s attorney or whether he actually appeared. Eventually, a message was left at Holwell’s

office ordering her appearance by noon, or she “may” face sanctions. According to Judge Veal,

“The court clerk called several more times and was provided conflicting information regarding

Atty. Holwell’s whereabouts.” When Holwell failed to appear as of 1 p.m., the trial judge swore

Lathan and heard his testimony. Judge Veal found Stewart liable for the damages to Lathan’s

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vehicle and entered judgment in his favor in the amount of $2,176.22, plus court costs.

Additionally, the court entered the following as to Holwell:

“Atty. Holwell is sanctioned $300.00 for her failure to comply with court

orders to appear in court. Defendant, David Lathan, appeared in court on two

occasions where Atty. Holwell neglected to appear in court or notify him.”

Holwell was ordered to pay Lathan within 14 days of the entry of the order. Also, at some point

on August 11, 2009, Judge Moltz entered an order vacating his August 7, 2009 order.

Stewart now appeals.

ANALYSIS

Fundamental principles of due process require that parties receive procedural due process

in the form of notice and an opportunity to be heard. Gredell v. Wyeth Laboratories, Inc., 346 Ill.

App. 3d 51, 62, 803 N.E.2d 541, 550 (2004). Parties to actions in the circuit court are entitled to

notice, either personally or upon their counsel of record, of pending motions or hearings.

Gredell, 346 Ill. App. 3d at 62, 803 N.E.2d at 550; 145 Ill. 2d R. 11(a). Likewise, rule 2.1 of the

circuit court of Cook County requires written notice to all parties who have appeared regarding

motion hearings. Cook Co. Cir. Ct. R. 2.1(a). As the determination of whether a party received

proper or adequate notice is a question of law, our review is de novo. Hwang v. Department of

Public Aid, 333 Ill. App. 3d 698, 703, 776 N.E.2d 801, 806 (2002).

Supreme Court Rule 11 does not mention or authorize telephonic notice to parties. See

145 Ill. 2d R. 11(b). However, the rule does permit notice by facsimile where the parties so

agree. 145 Ill. 2d R. 11(b)(4). At least one court has extended the rule to permit telephonic

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notice provided the parties are in agreement. Lewis v. Collinsville Unit No. 10 School District,

311 Ill. App. 3d 1021, 1028, 725 N.E.2d 801, 806 (2000) (“Unless all parties agree, verbal

telephonic notification simply does not suffice”). In the present case, it appears telephonic notice

– albeit undertaken by Judge Moltz – was made or attempted to be made on Holwell as to the

August 11, 2009, hearing. No notice of any kind appears to have been made upon Lathan’s

counsel, though Lathan knew of the situation by virtue of his own presence in court on the

previous day. The same cannot be said of his counsel. We thus determine that notice was

lacking in both form and substance insofar as the August 11, 2009, hearing was concerned.

We turn then to the next component in the analysis, namely, whether the parties were

afforded an opportunity to be heard. Gredell, 346 Ill. App. 3d at 62, 803 N.E.2d at 550. As we

perceive the overarching issue on appeal impacts the actions of the judges involved, we are

compelled to consider the Code of Judicial Conduct and its canons provided in the supreme court

rules. Recognizing that the canons are incorporated in the supreme court rules we are mindful of

the supreme court’s directive that its rules are not aspirational, have the force of law, and should

be adhered to as written. See Bright v. Dicke, 166 Ill. 2d 204, 210, 652 N.E.2d 275, 277-78

(1995). Supreme Court Rule 63, Canon 3, provides:

“(4) A judge shall accord to every person who has a legal interest in a

proceeding, or that person’s lawyer, the right to be heard according to law. A judge

shall not initiate, permit, or consider ex parte communications, or consider other

communications made to the judge outside the presence of the parties concerning a

pending or impending proceeding except that:

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(a) Where circumstances require, ex parte communications for scheduling,

administrative purposes or emergencies that do not deal with substantive

matters or issues on the merits are authorized; provided:

(i) the judge reasonably believes that no party will gain a procedural or

tactical advantage as a result of the ex parte communication, and

(ii) the judge makes provisions promptly to notify all other parties of the

substance of the ex parte communication and allows an opportunity to

respond.

(b) A judge may consult with court personnel whose function is to aid the

judge in carrying out the judge’s adjudicative responsibilities or with other

judges.” Official Reports Advance Sheet No. 9 (April 25, 2007), R.

63(A)(4), eff. April 16, 2007.

The record on appeal lacks any transcripts, bystander’s reports, or accounts of the actual

series of events. Nevertheless, a review of the record available to us warrants the finding that

Judge Veal failed to afford the parties the “right to be heard according to law.” Official Reports

Advance Sheet No. 9 (April 25, 2007), R. 63(A)(4), eff. April 16, 2007. Apparently, when

Lathan appeared for court on August 10, unaware of Judge Moltz’s order, Judge Veal sua sponte

implicitly vacated her colleague’s order without proper notice to plaintiff or any of the respective

counsel. “By its very nature, a sua sponte ruling deprives a party of notice and an opportunity to

raise objections because the court acts on its own and without any warning.” Peterson v.

Randhava, 313 Ill. App. 3d 1, 13, 729 N.E.2d 75, 84 (2000). In turn, Veal conducted a

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conference with Moltz. It is unclear why such a conference was necessary, given the relatively

uncomplicated nature of the situation. Although we recognize that subsection (b) of Rule 63

permits judges to consult one another, here the conference resulted in Judge Moltz engaging in ex

parte communications with Stewart’s attorney. Nothing in the record satisfies us that these

communications were made consistent with Rule 63(A)(4)(a)(i) and (ii). Specifically, there is no

indication Judge Moltz made any effort to contact any of the other attorneys of record and allow

them to respond. See Official Reports Advance Sheet No. 9 (April 25, 2007), Rs. 63(A)(4)(a)(i)

through (ii), eff. April 16, 2007. Because these efforts did not constitute sufficient notice to all

of the parties they did not comport with the requirements of the rule.

Moreover, at the time of these ex parte endeavors, Judge Moltz’s order, entered on

August 7, 2009, was manifestly in effect. The August 7 order, with its concomitant August 28

status date, remained in effect until August 11, when Judge Moltz entered his order of vacatur.

We question the necessity for Judge Moltz’s involvement on August 11 given that Judge Veal

was present and presiding over the case in each of its respects. Veal’s presence was clearly

manifested by her directions to staff to locate attorney Holwell and her eventual entry of

judgment in favor of Lathan on the counterclaim. For those reasons, we discern that judgment on

the counterclaim was improvidently entered, as there was no notice to the parties or opportunity

to be heard.

Next, we address the issue of the sanction imposed against Holwell. Within Judge Veal’s

August 11, 2009, “Facts, Findings, Decision and Order,” there is a section entitled “Decision.”

One paragraph memorializes the judgment entered in favor of Lathan. The second states:

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“Atty. Holwell is sanctioned $300.00 for her failure to comply with court

orders to appear in court. Defendant, David Lathan, appeared in court on two

occasions where Atty. Holwell neglected to appear in court or notify him.”

There is no indication of any lawful basis for the imposition of this sanction. We are, of course,

mindful that Supreme Court Rule 137 authorizes the imposition of sanctions for failing to sign

documents submitted to the court or signing documents presented for an improper purpose. 155

Ill. 2d R. 137. Yet, according to Rule 137, “Where a sanction is imposed ***, the judge shall set

forth with specificity the reasons and basis of any sanction so imposed either in the judgment

order itself or in a separate written order.” 155 Ill. 2d R. 137. Though Judge Veal does offer

reasons for imposing a sanction against Holwell, those reasons clearly fall outside the rubric of

Rule 137. Manifestly, here the sanction did not arise from the signing or filing of any

documents. Despite Judge Veal’s characterization of her act as a sanction, we find it more

closely resembles a punishment for contempt.

As our supreme court noted in People v. Ernest:

“A court has the inherent power to punish, as contempt, conduct that is

calculated to impede, embarrass, or obstruct the court in its administration of justice

or derogate from the court’s authority or dignity, or to bring the administration of the

law into disrepute.” People v. Ernest, 141 Ill. 2d 412, 421, 566 N.E.2d 231, 235

(1990).

Arguably, the court’s sanction here speaks to an obstruction of the administration of justice.

However, Judge Veal never invoked the word “contempt” or claimed authority premised on the

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contempt power. Moreover, if a contempt was indeed perceived as a basis for the sanction, the

record is bereft of any suggestion that Holwell was afforded any of the due process rights

inherent in such proceedings.

In the case sub judice, Holwell appears to have disregarded the order to appear made

telephonically by Judge Moltz. This decision seemingly followed upon a conference between the

attorneys of record wherein they decided to abide by the order entered on August 7, rather than

respond to Judge Moltz’s request to appear. As noted, that telephonic effort was directed only to

Holwell and not to any other counsel of record, despite the fact that Lathan was still apparently

represented. Although we question the prudence of attorneys deciding sua sponte not to appear,

the fact remains that the only viable court order then existing was the August 7 order which had

continued the matter until August 28, 2009. See Ernest, 141 Ill. 2d at 424, 566 N.E.2d at 236

(“A court order made within the proper exercise of jurisdiction, no matter how erroneous, must

be obeyed until the order is modified or set aside by the trial court or reversed on appeal”).

Importantly, as our supreme court stated in People v. Waldron: “Whether a contempt is

considered direct or indirect, if the court is required to determine whether the conduct alleged

was wilful, and in order to do so must consider extrinsic evidence as to matters not within its

knowledge, the respondent must be given an opportunity to defend.” People v. Waldron, 114 Ill.

2d 295, 302, 500 N.E.2d 17, 20 (1986). Though the underlying situation encompassed some

facts within Judge Veal’s knowledge, to find Holwell in contempt the court had to offer her an

opportunity to appear and afford her a hearing to determine whether her conduct was willful.

Clearly, this did not happen here. Consequently, if the sanction was intended as a finding of

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contempt, it was lacking due process of law. Waldron, 114 Ill. 2d at 302, 500 N.E.2d at 20.

Without knowing the basis for the entry of sanctions against Holwell, we are equally

unable to determine the propriety of the monetary penalty payable to Lathan, whose pro se efforts

achieved victory on his counterclaim. We therefore vacate the order imposing a $300 sanction

on Holwell and ordering it payable to Lathan. Notably, we can find no precedent, either

statutorily or decisional, for awarding a sanction directly to a litigant in the fashion undertaken by

Judge Veal.

In light of the foregoing, we determine that the proceedings surrounding entry of

judgment in Lathan’s favor on the counterclaim and the imposition of sanctions against Holwell

were fatally flawed. Consequently, we vacate the judgment of the circuit court of Cook County

in all respects and remand the cause for further proceedings on Lathan’s counterclaim. We

further direct the case to be assigned to a judge other than those previously involved.

Vacated and remanded for further proceedings.

FITZGERALD SMITH and HOWSE, JJ., concur.

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