# Petition for Writ of Certiorari — Fiocchi v. Robert G. Regan Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385601_1818%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1964 - **Citation:** 379 U.S. 828 ## Text JOHN F. DAVIS, GLERK Supreme Court of the United States. 9 aes € 2 ROBERT G. REGAN CO., a corporation, ; ° Respondent, ws. CAESAR A. FIOCCHI and CHARLES FIOCCHI, co- partners, d/b/a Caesar Fiocchi Company, and SEA- BOARD SURETY COMPANY, a corporation, Petitioners. 4 \ PETITION FOR A WRIT OF CERTIORARK.TO THE SUPREME COURT OF ILLINOIS — KeNNETH S Lewis, Suite 1734 7 South Dearborn Street Chicago, Illinois, : Attorney for Petitioners. Lowe. B. Komi, WituiaM Levinson, Suite 2110 : > 77 W. Washington Street Chicago, Ilinvis Of Counsel. The Scheffer Press, Ine—-ANdover 38-6850 INDEX PAGE SIN TREE veassicensdesiconeeincainercs Sctdiachabicalciaaiepctinanananases 2 Jurisdiction ..c.ccccessccccssseseceeseeee thelial Re satacasiciedsninisin 2 Questions Presented... een iensineiapeneenncleniacsane 2 ee SII aos cncdaccsssccinesinces Accsanentosmremsectonactosacc 3. IE aia in ectmcencensencrrncctacts ss cbtancatedmaanucmabaomion 3-7. SIRES, SOREN cine sncagnnienccininanincns pS 8 Reasons For Granting Wit. ...........ccccccccsccscsesteeseseeece 9-11 NII caret cnsuginntine cateennaesleiapicisniacenpenciliaeviactionancsisastietalataies il INDEX TO APPENDICES Appendix A = BRE GRRE Sara near —_ enacsnssnsssronrensenese la Appendix B— ; Opinion of Appellate Court of Illinois, 2nd Dis- BEWNG © iicteciacaes se aceaierata deb bnaeuaaiak eer aiaiee cansesessenaneneee 2a CITATIONS. Wilson v. United States, 221 U.S.°361, 31S. Ct. 538, Oe” rl a. | |) Sennen eeMrmen UF | People v. Ryan, 410 TIL 486, 103 N.E, 2d 116, (1952)... 10 IN THE SUPREME COURT OF THE UNITED STATES Octoser TERM, A. D. 1964. No, ROBERT G. REGAN CO. a corporation, oy cane ut, Us. _CAESAR A. FIOCCHI and CHARLES FIOCCHT, co- partners, db a Caesar Fiocchi Company, and SEA BOARD SU RETY COMPANY, a corporation, 2 Petitioners. “ PETITION FOR A WRIT OF | RTIORARI TO - THE SUPREME COURT LINOIS To the Honorable, the Cleef Baslier, and the Associate Justices of the Supreme Court of the United States: Caesar A. Fioechi and Charles Fiocchi, ca-partners do- ing business as Caesar Fioechi Company, and Seaboard Surety Company, a corporation, pray: that a writ of cer- ‘tiocari issue to review a judgment of the Supreme Court of Tilirois entered in the above entitled case on Maren 16, 1964, denying petitioners leave to appeal to the Supreme Court of Hlinois from a judgment of tie Appellate C ourt of Illinois, 2nd district, entered on December 6, 1963.. =~ CITATIONS TO OPINION BELOW The opinion of the Appellate Court of Illinois, 2nd dis- trict, is reported in 44 Ill. App. 2d 336, 194 N. E. 2d 665 (1963). There was no opinion in the Supreme Court of Tilinois. ; JURISDICTION The /jodgment of the Appellate Court of Illinois, 2nd district, was entered on December 6, 1963. The opinion — is printed in Appendix B accompanying this Petition. The bo jurisdiction of this Court is invoked under Title 28 U.S.C. 1254 (1). * QUESTIONS PRESENTED 1.. Whether. the Supreme Court ‘of Illinois erred in deny- ing petitioners leave to appeal on March Toi 1964. from a judgment of the Appellate Court «! Tllinois,. 2nd district, entéred on December 6, 1963, ‘ioc: a directed verdict and judgment of the Circuit Court of Lake County, I}inois, in favor of respondent and , against petitioners in the amount of $11,295.15 en- tered on June 26, 1962. [t is respectfully submitted that error was committed by the trial judge in directing a verdict against peti- - tioners and denying their motion for new trial filed July 26, 1962 (Abstract of Record—Pages 14. 15 and 16). The basis alleged for error is that the trial judge denied petitioners access to certain records of the Fed- eral Housing Authority that they- had subpoenaed for use at the trial by way of subpoena duces tecum. = THE STATUTES INVOLVED ‘The statutes involved are Amendi.-nt XIV, Sect. 1, Constitution of the United States (due process); Ch. 110, Ill. .Rev. Stat. See. 62 (subpoenas). Botn the foregoing are printed in Appendix A, infra. f . §TATEMENT OF THE CASE Respondent, Robert G. Regan Co., a ge neral contractor jin the construction industry, filed suit against Caesar A. Fiocechi and Charles Fiocehi, co-partners, doing business as Caesar Fiocchi Company in the Circuit Court of Lake County at Waukegan, Illinois on December 22, 1960. The Fioechi brothers conducted a mason contracting business as co-partners in Highland Park, Illinois and were joined . as partners in the suit eta eh their surety, Seaboard ’ Surety Company, who had written the performance bond under the construction contract made the subject of the action. Robert “G. Regan Co. brought a two count complaint ‘against the Fiocchis and their surety, Seaboard Surety Company, alleging failure to perform a masonry subcon- tract for the brick work on certain residences. constructed by Robert G. Regan Co. at the Glenview Navaf Air Station. Glenview, Illinois. The specific failure of performance al- leged was a material deviation in installing wall ties bind- ing the veneer to the framing of the buildings as ealled for by the specifications ( Abstract of Record, pages 1-5). It was alleged that the secatie work was buckling on the buildings. The Fioechi brothers and Seaboard Surety Company in their answer admitted the deviation in the placement of the wall ties but alleged that the breach was trivial and not re- lated to the damage that had arisen to the buildings ( Ab- ae? oe stract of Record, pages 6-8). It was alleged in the answer that the falling away or buckling condition of the’ brick work arose through the fault-of Robert G. Regan Co., it | being ‘the theory of petitioners that the real cause, of damage to the buildings arose through both improper de- _ sign and the use of inferior lumber r setting up a shrinking force that pulled away the veneer. The case came to trial before a jury in ‘June of 1962. After Respondent had put on his case, Petitioners’ counsel opened his defense by calling the president of Respondent Company as an adverse witness. After hearing testimony from only this witness the trial judge directed Petitioners to make an Offer of proof, which offer of proof was denied and the juyy was directed to return a verdict and judgmert in favor of Respondent. This directed verdict and judg- ment was entered against Petitioners and. in. favot of Re- spondent in the amount of $11,296.15 on June 26, 1962. (Abstract of Record, pages 12-13). | Prior to the commencemént of the trial, Petitioners and Respondent also it is believed caused to be served upon the Federal Housing Authority certain subpoenas. Petitioners’ subpoena is set both in form and substance below : > —i5— No. 74417 CIRCUIT COURT LAKE COUNTY, ILLINOIS Robert G. Regan Co., a corporation vs. Caesar A. Fiocchi, . et al : , | Subpoena Duces Tecum | a: Federal Housing Authority at 36 South Wabash — Avenue, Chicago 3, Illinois - State of Illinois, Lake County—ss. The Peoplt of the-State of Illinois to the Sheriff of said - County —Greeting: We Command You to Summon Federal Housing Authority, by its duly authorized agent and keep- -er of records if he shall be found, in your County, pers on- ally to be and appear before the Circuit: Court of said County, on the 25th day of June 1962, at the Court House in Waukegan at the hour of 9:30 a.m., and to bring with him and produce at the time and place aforesaid, to be used as evidence, certain instruments of writing purporting to be all records, correspondence, photographs, reports, writings, and documents pertaining to construction of a Wherry Housing Development under Title VIII of, the National Housing Act as amended, known as -FHA Projec { No. O71- 80009 then and there to testify, and the truth to speak, con- cerning all and singular those things of which he may have knowledge, or the said instruments of writing doth import of, and concerning a certain suit now pending and undeter- mined in the said Circuit Court, wherein Robert G. Regan Co., a corporation plaintiff and Caesar A. Fiocchi and Charles Fiocchi, co-partners, d/b/a Caesar Fioechi Com- pany, and Seaboard Surety Co., a corporation defendants. to testify.on the part of the said Caesar A. Fioechi et al. © And this he shall in no wise omit under penalt’ of what the law directs; and have yvou'then and there this writ, i —_ § =. with an indorsement thereon’ in what manner you shall have executed the same. Seal. | Witness Stephanie Sulthin, Clerk of said Circuit Court, and the seal thereof at Waukegan, Illinois this 21st day of June A.D., 1962, Stephanie Sulthin, Clerk I, Lowell B. Komie, having been first duly sworn upon my oath state that on the 2Ist day of June, 1962, at the hours of 3:00 P.M., I served the Federal Housing Authority at 36 South Wabash Avenue, Chicago 3, Illinois, by hand- ing a copy of this Subpoena Duces Tecum to Joseph Lyons, agent. /s/ Lowell B. Komie Seal. In putting on its case, Respondent called one Erith Olsen as a witness. Olsen testified that he was the FHA inspector on the job and had refused to give it final certification due to the faulty condition of the veneer work. The coritract between the owner and Robert G. Regan Co. required ae- ceptanée by FHA before final payment to the general con- tractor. The FHA inspector also testified that in his opinion the condition causing the veneer “to come loose resulted from the Petitioners’ failure to properly install wall ties as provided by the specifications. It is Petitioners’ belief that Inspector Olsen appeared on behalf of Respondent in answer to a subpoena served upon him or the Federal Housing Authority by Respondent. - In any event, he was the only official of FHA who ap-. peared at the trial and it was Petitioners’ belief that he or. some other official of FHA would also: be present at. the trial to produce the records requested by Petitioners’ Subpoena Duces Tecum at such time that Petitioners com- a poe menced their defense. The documents requested in the Subpoena Duces Tecum were necessary to Petitioners de- fense to determine whether the decision reached by In- spector Olsen as testified to-by him in behalf of Respondent was in any manner fraudulent, unreasonable or arbitrary. Petitioners had no intention of calling Inspector Olsen as a witnessgbut merely sought to inspect his file on the project and to use such documents as might be relevant to im- peach his conclusion through the testimony of Petitioners’ own expert witnesses. In the short interval that passed subsequent to the testimony of Inspector Olsen as a witness for Respondent and prior to the commencement of Petitioners’ defense, Petitioners contacted ‘the hag al office of FHA and re- newed their request that t ocuments made the subject of their Subpoena Duces Tecum be produced at once. Peti- tioners were told that the documents would he produced but that they were in a warehouse apd some difficulty was being incurred in locating them. Whereupon, on June 26, 1962, Petitioners were required ta commence their defense at bar without recourse to the documents subpoenaed and were almost immediately after the commencement of their defense ordered by the trial judge to make an offer of proof, said offer thereupon being denied and the jury di- rected to bring forth a verdict and judgment against Peti- tioners. At no time during the trial were the documents requested in Petitioners’ Subpoena Duces Tecum produced by the Federal Housing Authority nor was cause shown for their non-production or objection made to the subpoena itself. . | On July 26, 1962 Petitioners filed their Motion for N yew Trial and raised therein as an allegation of error the failure of FHA to produce the subpoenaed docunients (Abstract of : —8— Record, pages 14 and 15, para. 6). The trial court denied the Motion for New. Trial (Abstract of Reeord, page 16). Appeal was perfected by Petitioners to thie ‘Appellate Court of Illinois, 2nd District and on December 6, 1963 the Appellate Court entered an order affirming the judg- ment. of the Circuit Court of Lake County (Abstract of Record, page 53). In its opinion, which is set forth in Appendix B, infra, the Court commented on the fact that Petitioners made no attempt to show that the FHA de- cision was unreasonable, arbitrary or fraudulent and con: sequently were bound by the decision and determination of FHA. | On December 30, 1963. the Appellate Court of [linois, 2nd District, denied Petition for Rehearing (Abstract of Record, page 95). On March 16, 1964, the Supreme Court of Illinois denied Petition for Leave to Appeal. FEDERAL QUESTIONS ‘It is alleged that the failure of the Federal Housing Authority to ‘produce records and documents specified in the Subpoena Duces Tecum served upon its agent in Chi- eago, Hlinois on June 21, 1962 by Petitioners for produc- tion and delivery to the. trial court has resulted in a deprivation of Petitioners’ property without due process of law (Constitution of the United States, Amendment XIV, See. 1, Appendix A). It is also respectfully submitted that in denying Petitioners access to these records and ~ documents the Circuit Court of Lake County, Hlinois. so far departed from the accepted and usual course of judi- cial proceedings as to call for an exercise of the Court's ower of supervision (Rules of the Supreme Court of the United States, Rule 19, 1(b)). The stage of the proceeding at bar at which the alleged Federal question was first raised by Petitioners was upon the filing of their Motion for New Trial in the Trial Court on July 26, 1962 (Abstract of Record, pages 14 and 15, para. 6). The trial court denied the Motion for New Trial (Abstract of Reeord, page 16). The Motion for New Trial thereupon was abstracted and the error preserved in the record before the Appellate Court, 2nd District and Su- preme Court of Illinois (Abstract Of Record, pages 14 and 15, para. 6). The alleged constitutional deprivation and resultant federal question were further specifically raised . and argued in Petition for Rehearing before the Appellate Court of Illinois, 2nd District (pages 3 and 4). Petition for . Rehearing was denied by the Appellate Court of Illinois, 2nd District on December 30, 1963 (Abstract of Record, page 93). REASONS FOR GRANTING THE WRIT It is clear that under Illinois law, Petitioners as a matter of right had authority to cause a Subpoena Duces Tecum to be issued from the Cireuit Court of Lake County, Illinois for service upon the Federal Housing Authority in Chicago for: production of those documents and records Petitioners believed relevant to their presentation of an orderly defense. Ch. 110 TIL Rev. Stat., Sec. 62. (Appen- dix A). It is also evident from the language of this section of the Illinois Civil Practice Act that Petitioners were not required to obtain an order of court prior to issuance by the clerk of the Subpoena Duces Tecum. In Wilson v. United States, 221 U.S. 361, 31S. Ct. 538, a5 L. Ed. 771, (1911) a president of a private corporation refused to produce certain corporate records before a New York City Grand Jury in response to its Subpoena Duces — Tecum. He was committed by the New York Cireuit Court for contempt and on appeal to the Supreme Court of the United States, the judgment of the Circuit Court was af- firmed. Mr. Justice Hughes delivered the opinion of the Court and had occasion to discuss therein the traditional use of the writ of subpoena duces tecumn, saying at 221 US. 31,372: .* . . “The power to compel the production of doeu- ments is, of course, not limited to those cases where it is sought merely to supplement or aid the testimony of the pefson required to produce them. The produe- tion may be enforced independently of his testimony, and it was held long since that the writ of subpoena duces tecum was adequate for this purpose ... The right to resort .to means competent to compel the pro- duction of written, as well as gral) testimony seems essential to the very existence and constitution of a Court of common law, which regeives and acts. upon - both descriptions of evidence and could net possibly proceed with due effect without them. ...” The statement of Mr. Justice Hughes that ‘the right to ‘production of written testimony is essential to the exist- ence of a Court of Jaw indicates that the Petitioners tight to issuance and return of their subpoena duces tecum is a basic procedural right and therefore would he protected under the Fourteenth Amendnint of the Constitution of the United States (Amendment XIV. See. 1, U.S. Constitution, Appendix A). Both Wilson v. United States and People v. Ryan, 410 TIL 486, 103 NE. * 2d 116 (1951), a case also involving the refusal of a corporate officer to produce documents requested by a subpoena duces tecum issued by a grand jury, illustrate that the right to production of written testimony by sub- poena duces tecum.is so basic to the orderly procedural administration of our courts that failure to comply with the writ will be punishable by contempt. * £ mt prey | pres Wilson v. United States, also* indicates that it is not necessary under a subpoena duces tecum that the person returhing the writ be sworn as a witness and his oral testimony taken. The writ@of subpoena duces tecum is regarded as an order for the production of documents and these must be produced by. a respondent to the writ re- gardless of whether his testimony is to be taken orally. Therefore, Petitioners had a right to production of the documents and records requested in their writ regardless of whether they intended to call FHA inspector Olsen as a witness, If, they intended to use the documents and _re- ports to be introduced through the testimony of their own expert witnesses to impeach Inspector Olsen, this was + their right. The Appellate Court of Ilinvis, 2nd District, in’ its opinion at 44 Hl App. 2d 336, 194 NE. 2d 665 (1963) emphasized that petitioner made no attempt to show In- spector Olsen's detision to be unreasonable, arbitrary or fraudulent and therefore held that they were bound by the decision in absence of any showing to the contrary, At 194 N. EF. 2d 665, 668, it is said, Appendix B mira: : Defendante-inade ho attempt to show that the PHA‘s decision or determination that the wall ties should have been installed in accordance with the speciications was unreasonable, arbitrary or fray- dulent, nor even any attempt to explain why the wall ties were not so installed ino the. first place, Con- sequently -defendants avere bound by the decision and determination of. FILA that the brick would have to be taken down, the wall ties put in according to specifications, and the brick relaid 2.0." It is respectfully submitted that had the Federal Hous- ing Authority complied with Petitioners’ subpoena duces feceum, Petitioner would have had an opportunity to ‘—12-— ° explain why the decision of .Inspector Olsen blaming them for the damage to the buildings was unreasonable. arbitrary or fraudulent. Without recourse to FHA's ree- ords relating to the project, petitioners would have little hasix to lay the foundation for impeachment of. Inspector Olsen's previous testimony. CONCLUSION. “For the foregoing reason the writ of certiorari should be granted. Respectfully submitted, Kexxetu S Lewis | Suite 1734 7 S.. Dearborn St. Chicago, Hlinois Attorney for Petitioner Lowell B. Komie William Levinson Suite 210, 77 W: Washington St. Ahicayo 2. Minois Of Counsel. te —— jg — APPENDIX A — Amendment XIV, Sect. 1, Constitution of the United States: 3 - “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citi- zens of the United States and of the State wherein they reside. No state-shali make or enforce any Jaw (| which shall abridge the privileges or immunities of citi- zens of the United States; nor shall any State deprive any person of life, liberty. or property, without due process of law: nor deny te any person within its jurisdiction the eqnal protection of the laws.” Ch. 116, Tl. Rey. Stat. Sect, 62 (subpoenas) : “The clerk of any courf ip which an action is pend- ing shall. from,time to time, issue subpoenas for those Witnesses and to those counties in the State as may be required by cither party... Every clerk who shall re fuse so to.do shall be -fined, at the diseretion of the court, in any sum not to exceed $100, An order of court is not reqiired to obtain the issuance by the clerk of a subpoena duees tecum. For good cause shown, the court on motion may quash or modify any ° subpoena or in the case of a subpoena.duess tecum, ‘condition the denial of the motion npon payment in advance by the person in whese behalf the subpoena ix issued of the reasonable expense of producing any item therein specified.” £9_ — APPENDIX B Opinion of the Appellate Court. McNeat., J.— The plaintiff. Robert G. Regan Co.. was the general contractor for the construction of. certain buildings for Glenview Naval Homes, Ine. Plaintiff: entered into’ a subcontract with the defendants, Caesar A. Fioechi and Charles Fiocehi, to do all masonry werk ino accordance With the plans and specifications of the contraet. Plain- tiff sued defendants for their failure and neglect to con- form strictly with such plans and specifications, and also sned the Seaboard Surety -Company as surety for the faithful performance of the subcontract. At the close of plaintiff's evidence, the Cireuit Court of Lake County denied certain offers of proof by defendants. and then directed the jury to return & verdiet against defendants for $11,296.15. The court entered judgment on. the directed verdict, and defendants appealed. The general contraet was for construction of a number of buildings at the Glenview Naval Air @tation. known as the Johnson Court Wherry Housing Development. The project was financed by. FHA insured financing under Tithe VIED of the Netional Housing Act. as amended, and known as FHA Project No. 07180009. On November 21, 155, the defendant. partners made ao subeontreet with the plaintiff corporation te perforin all masonry work under the prune contract per plans and specifications for - 113.000, ON portion of the prime contract relating to masonry construction of exterior walls provided : “Brick vencer facing on wood frames shall be at east Ot. inches thick, laid on running bond exeept Where stacked bond is shown. and securely attached to the structure swith corrosion resistant ties spaced not farther apart than 160 inches vertically and. 16 inches horizontally." 2 ‘ E ann 0 ame The subcontract referred to the plans and spe¢ifications and recited that the ‘subeontractor hitd examined them and knew the contents thereof. By the subcontract defend- ants agreed to conform strictly with all the terms and conditions of the plans and. specifications in the per- formance of the subcontract, and agreed to replace, upon demand of. contractor and at subcontractor’s-expense, with proper materials, any materials determined by contractor or owner to be unsatisfactoy within ong year from the date of final completion ‘of the prime contract and the final inspection and approval of FIA. Subcontractor also agreed to indemnify and save the contractor harmless from any and all claims, damages of liabilities of what- ever nature which might result from performance of the: subcontract, and agreed that in,the event of the subeon- tractor’s default in the performance of the subcontract in any respect as required by contractor, the contractor might perform the work and furnish materials therefor, or imight have other parties do the same, and the subcon- . tractor agreed. to paw any excess in cost over the subeon- tract agreed price for completion by the contractor. The subeontractor also guaranteed to remove ard remedy any defeets arising within one vear of the completion of the project, and agreed that payvinent should not constitute acceptance of any inproper work or performance.” The subcontractor also agreed te comply with all regula: tions and require:ents of the FHA. Among these require- nents were provisions that the FELA shall have the right to interpret the contract documents and to determine eom- plianee therewith; that all items of constructions shall be subject to final acceptance by the FEA: and that the con- tractor shall acceptably correct any defeats duc to. faulty materials or workmanship which appear Within a period of one year following substantial completion. The subcontractor was paid in fuil upow the first inspec tion by FHA, but within the one-year period the inspector determined that the wall ‘ties were not attached as re- quired by the specifieations and the brick walls on many of the buildings constructed’ by defendants commenced to > Rey ae bulge. The inspector notified the owner, Glenview Naval Homes, to correct the condition by installing ties aceord- ing, to specifications. Thereupon the owner called upon plaintiff to correct the condition and in turn plaintiff di- rected the defendant subcontractor to install. the ties. It was admitted in defendants” answer and established by the evidence that defendants did not comply with the provision of the prime contract requiring brick veneer to be securely attached to the structure with corrosion re-— sistant ties spaced not farther apart ‘than.16 inches ver- tically and 16 inches horizontally. According to the evi- denee, on many building the wall ties were 4 foot. on _ center instead of 16 inches, and there was no place on any of the 16 buildings where wall ties were found to, be in place 16 inches vertically and horizontally. It was stipulated that the FHA inspector prepared a report after his inspection of the work and sent the report to Glenview Naval Homes, Ine., that in the report the ‘in- spector stated that the brick would have to be taken down and the ties would have to be put in according to specifi- ‘cations and the brick put back-up to satisfy the FHA on the project, and that the report was forw arded by Glen- view Naval -Homes, Ine. to the plaintiff and