Board of Managers of Northbrook Country Condominium Ass'n v. Spiezer

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Date: 2018.07.10

Appellate Court 14:47:35 -05'00'

Board of Managers of Northbrook Country Condominium Ass’n v. Spiezer,

2018 IL App (1st) 170868

Appellate Court BOARD OF MANAGERS OF NORTHBROOK COUNTRY

Caption CONDOMINIUM ASSOCIATION, Plaintiff-Appellee, v. JUNE

SPIEZER, as Trustee of the June Spiezer Revocable Trust Dated

December 16, 1999, and UNKNOWN OCCUPANTS, Defendants

(Joseph Spiezer, Intervenor-Appellant).

District & No. First District, Second Division

Docket No. 1-17-0868

Filed February 20, 2018

Supplemental

opinion filed April 10, 2018

Decision Under Appeal from the Circuit Court of Cook County, No. 16-M1-721683;

Review the Hon. Martin Moltz, Judge, presiding.

Judgment Appeal dismissed; order to show cause entered.

Counsel on K.O. Johnson, of Sycamore, for intervenor-appellant.

Appeal

Sandra T. Kahn and James A. Slowikowski, of Dickler, Kahn,

Slowikowski & Zavell, Ltd., of Arlington Heights, for appellee.

Panel JUSTICE HYMAN delivered the judgment of the court, with opinion.

Presiding Justice Neville and Justice Pucinski concurred in the

judgment and opinion.

OPINION

¶1 The Board of Managers of the Northbrook Country Condominium Association (Board)

sued June Spiezer, trustee of the June Spiezer Revocable Trust, to recover common expenses

owed on her condominium unit. After the trial court entered a default judgment and order of

possession, her son, Joseph Spiezer, moved that the default judgment and order of possession

be vacated, which the trial court granted. Joseph then moved to quash service, which the trial

court denied, finding Joseph submitted to the court’s jurisdiction by filing the motion to vacate.

The trial court entered another order of possession in favor of the Board.

¶2 Joseph timely appealed the order of possession, but the appeal was dismissed for want of

prosecution. 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1-13-0573 (Aug. 28, 2013) (unpublished summary order under Illinois Supreme Court Rule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)). Almost three years later, Joseph filed a motion in the trial court to vacate the order of

possession and for an accounting and judgment in his favor. The trial court found it no longer

had jurisdiction and dismissed his motion, as well as a motion to reconsider.

¶3 Joseph appeals 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. Having let his appeal on

these issues lapse, Joseph cannot exhume his case by motion, and we must dismiss.

¶4 Further, in his brief, Joseph’s attorney, K.O. Johnson, disparages opposing counsel and

makes a number of statements that call into question the trial and appellate court’s integrity.

Because of the acerbity of his statements and his past behavior (a panel of this court previously

warned Johnson regarding improper conduct), we order that he show cause within 30 days why

sanctions should not be imposed under Illinois Supreme Court Rule 375 (eff. Feb. 1, 1994).

¶5 Background

¶6 On August 31, 2012, the Board of Managers of the Northbrook Country Condominium

Association filed a forcible entry and detainer complaint against June Spiezer, as trustee of the

June Spiezer Revocable Trust and unknown occupants, seeking possession and common

expenses. June died some nine months earlier, and, in addition to serving the summons and

complaint on unknown occupants, the Board served Joseph Spiezer, June’s son. After the trial

court entered a default order of possession in the Board’s favor, Joseph successfully moved to

vacate the order of possession. Joseph also moved to quash service, but the trial court denied

the motion, finding that by filing the motion to vacate, he submitted to the court’s jurisdiction.

¶7 On January 4, 2013, Joseph, as trustee of June Spiezer Revocable Trust, quitclaimed the

condominium unit to himself. On January 16, 2013, the trial court once again entered an order

of possession in the Board’s favor. Joseph filed a timely notice of appeal, which the appellate

court dismissed for want of prosecution. Spiezer, No. 1-13-0573.

¶8 Nearly three years later, on May 20, 2016, Joseph filed a petition to vacate the January 16,

2013, order of possession under section 2-1401(f) of the Code of Civil Procedure (735 ILCS

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5/2-1401(f) (West 2014)), arguing the order of possession was void because June was

deceased when the complaint was filed and her beneficiaries were not named as a party. Joseph

voluntarily withdrew the section 2-1401 petition on June 21, 2016. On August 2, 2016, Joseph

filed a motion to intervene in the forcible entry and detainer case, rearguing that June

predeceased the filing of the case and her beneficiaries had not been properly served with a

summons and complaint. Joseph asserted he should be allowed to intervene to vacate the

January 16, 2013, judgment, to present a motion for an accounting, and to obtain judgment in

his favor for rental income the Board received on the property after entry of the order of

possession.

¶9 By agreed order, the trial court continued the motion several times while the parties

engaged in settlement talks. On November 10, 2016, Joseph’s attorney withdrew and his new

attorney filed an appearance. The trial court continued the case to allow both parties to respond

to Joseph’s motion to intervene. On November 16, 2016, Joseph’s new attorney filed another

motion, seeking an accounting and asking the trial court to vacate the January 16, 2013,

judgment and enter judgment in Joseph’s favor. After the Board responded, the trial court

entered an order on December 23, 2016, dismissing Joseph’s motions for lack of jurisdiction

finding that the “revestment doctrine,” as explained in People v. Bailey, 2014 IL 115459, did

not permit the court to exercise jurisdiction. Joseph filed a motion to reconsider, which the trial

court denied on March 9, 2017. On April 5, 2017, Joseph filed a notice of appeal from the

December 23, 2016, order dismissing his motions and the March 9, 2017, order denying his

motion to reconsider.

¶ 10 Analysis

¶ 11 In his initial brief, Joseph asserts this court has jurisdiction under Illinois Supreme Court

Rule 306 (eff. Jan. 1, 2016) and Rule 303 (eff. Jan. 1, 2015). In his reply, however, Joseph

abandons his argument that Rule 306 provides a basis for appellate jurisdiction, and relies

solely on Rule 303. Because Rule 303 precludes us from exercising jurisdiction, we must

dismiss this appeal.

¶ 12 Rule 303(a)(1) states that “The notice of appeal must be filed with the clerk of the circuit

court within 30 days after the entry of the final judgment appealed from, or, if a timely posttrial

motion directed against the judgment is filed, whether in a jury or a nonjury case, within 30

days after the entry of the order disposing of the last pending postjudgment motion directed

against that judgment or order ***.” Ill. S. Ct. R. 303(a)(1) (eff. Jan. 1, 2015).

¶ 13 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.

¶ 14 Some three years later, Joseph sought to make an end-run around his long abandoned

appeal by filing a motion in the trial court to vacate the order of possession. His motion,

however, does not create a right to appeal under Rule 303 nor does he provide us with any

other rule that permits him to relitigate issues already decided in 2013 and already timely

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appealed, albeit dismissed for want of prosecution. Cf. In re K.A., 335 Ill. App. 3d 1095 (2003)

(holding that where appeal is dismissed, party may not file section 2-1401 in trial court to

circumvent the requirements of Rule 303); see also In re Estate of Kunsch, 342 Ill. App. 3d

552, 553 (2003) (dismissing appeal of disinherited son who sought to have will declared void

after he failed to file a timely posttrial motion directed against the judgment).

¶ 15 In some limited circumstances, a court may be “revested” with jurisdiction. For the

revestment doctrine to apply both parties must (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. Bailey, 2014 IL 115459, ¶ 25 (citing People v. Kaeding, 98 Ill. 2d

237, 241 (1983)). When, as here, those requirements are not met, the court has no authority to

address issues raised in an untimely motion.

¶ 16 We do not have jurisdiction and must dismiss.

¶ 17 Rule to Show Cause

¶ 18 Throughout his opening and reply briefs, Joseph’s attorney, K.O. Johnson, makes a series

of remarks to disparage the performance of opposing counsel, calling her arguments

“incoherent,” “bizarre,” “nauseating,” “nonsensical,” and a “word salad.” 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.

¶ 19 Johnson then aims a few poisonous darts at this court. For instance, he suggests that a panel

of this court intentionally withheld a Rule 23 order entered in a related case (Citibank, N.A. v.

Unknown Heirs & Devisees of Spiezer, 2017 IL App (1st) 161291-U) by failing to mail him a

copy and that his representation of his client was hindered as a result. Johnson should know

that the appellate court clerk notifies attorneys when issuing a Rule 23 order but does not mail

a copy to the attorneys. Instead of making reckless remarks about the court, it was incumbent

on Johnson to follow the progress of his client’s case.

¶ 20 Johnson does not stop there. He goes further and condemns the entire appellate court’s

integrity, suggesting that “the chance that this case will be decided on the up [and up] is a

stretch given the history of these cases but this party generally attributes to ignorance that

which can also be attributed to malice.” He further alleges, the Board “can literally say

anything and prevail in this court.” Johnson closes his opening brief with a derisive slap at both

the trial court and this court by asserting that when the judiciary “is too lazy, too stupid or too

corrupt to administer justice, the foundations of democracy come apart.” Johnson attempts to

justify these ad hominem attacks on his client’s failure to prevail in the trial court or in either

the trial or appellate court in the related case. Inflammatory and intemperate statements like

Johnson’s are highly improper, offensive, and have no place in legal briefs. We justices are

thick-skinned; nevertheless, we are tasked to uphold the public’s trust and confidence in the

legal system, especially on those rare occasions when a member of the bar intentionally and

unnecessarily seeks to undermine that confidence.

¶ 21 We note that this is not Johnson’s first warning regarding inappropriate conduct before this

court. In a 2011 case, In re Marriage of Myers, No. 2-10-1091 (Mar. 21, 2011) (unpublished

order under Illinois Supreme Court Rule 23), the appellate court noted Johnson’s “utter

disregard *** for appellate procedure” and described his multiple failures to meet deadlines

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“appalling and inexcusable.” The court admonished Johnson that similar conduct would not be

tolerated.

¶ 22 Johnson’s statements flout the norms of proper discourse before the appellate court. Thus,

we order that Johnson show cause within 30 days why sanctions should not be imposed under

Illinois Supreme Court Rule 375 (eff. Feb. 1, 1994) (reviewing court may impose a sanction on

party or attorney for party on reviewing court’s own initiative where court deems it

appropriate; if reviewing court initiates the sanction, it shall require the party or attorney, or

both, to show cause why a sanction should not be imposed before imposing the sanction).

¶ 23 Appeal dismissed; order to show cause entered.

¶ 24 SUPPLEMENTAL OPINION

¶ 25 This court granted defendant’s attorney, K.O. Johnson, 30 days to show cause why we

should not impose sanctions on him under Illinois Supreme Court Rule 375 (eff. Feb. 1, 1994),

for his unprofessional conduct before this court. As noted in the opinion, Johnson’s briefs

make numerous disparaging remarks about opposing counsel and questioned the integrity of

the trial court and the competency and integrity of the appellate court. Supra ¶¶ 18-20. Johnson

had been warned about inappropriate conduct. In re Marriage of Myers, No. 2-10-1091 (Mar.

21, 2011) (unpublished order under Illinois Supreme Court Rule 23) (showed “utter disregard

*** for appellate procedure,” including deadlines).

¶ 26 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 Johnson’s accusations and serve to undermine the judiciary’s

legitimacy, authority, and persuasiveness in the minds of the public and his client. In the words

of United States Supreme Court Chief Justice Warren Burger, “[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.” Warren E. Burger, The Necessity for Civility, 52 F.R.D. 211, 215

(1971).

¶ 27 More than 30 days has elapsed and we have not heard from Johnson. His client, however,

filed a motion to intervene and asked for leave to file a pro se petition for rehearing as Johnson

has failed to respond to his request. Having waived his right to respond, by operation of law,

we enter sanctions against Johnson. We order that K.O. Johnson (i) pay a fine of $750 to the

Clerk of the First Appellate District by May 11, 2018, and (ii) attend a minimum of six hours of

civility and professionalism courses by September 30, 2018, which have been approved by the

Illinois Supreme Court Commission on Professionalism (www.2civility.org/programs/cle/) or

the Minimum Continuing Legal Education Board of the Supreme Court of Illinois

(www.mcleboard.org), and file with this court by October 10, 2018, a verification listing for

each course, its name, provider, number of hours, and date taken.

¶ 28 A copy of this opinion shall be sent to the Attorney Registration and Disciplinary

Commission by the clerk of the court.

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