Opinion
No. 1-18-0850
09-30-2019
In re MARRIAGE OF JOSE LUIS MEDINA, Petitioner-Appellee, and JOSEFINA MEDINA, Respondent (Jan Kowalski, Additional Party Respondent-Appellant).
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Cook County.
No. 15 D 502
Honorable Mark Joseph Lopez, Judge, presiding.
JUSTICE COBBS delivered the judgment of the court.
Presiding Justice Ellis and Justice Howse concurred in the judgment.
ORDER
¶ 1 Held: The trial court did not abuse its discretion in imposing sanctions against respondent's counsel and striking counsel's petition for final fees and motion to reconsider. Counsel's contentions that she did not receive notice and an opportunity to be heard are not supported by the record. Sanctions are presumed properly calculated and imposed where appellant failed to provide report of proceedings from hearing on sanctions. Petition and motion to reconsider were properly stricken where counsel had failed to request leave of the court in accordance with the trial court's prior ruling.
¶ 2 This action stems from the dissolution of marriage proceedings between petitioner, Jose Luis Medina, and respondent, Josefina Medina, during which there was protracted litigation
regarding the sale of the parties' marital residence. Attorney Jan Kowalski represented Josefina from March 31, 2017, to December 12, 2017. Jose sought sanctions against Kowalski, pursuant to Illinois Supreme Court Rule 137 (eff. Feb. 1, 1994), alleging that motions filed during the protracted litigation were based on false allegations and designed solely to harass and delay the proceedings. On February 15, 2018, the court granted Jose's motion for sanctions and ordered Kowalski pay $11,427.50 to cover the cost of incurred attorney fees. Kowalski subsequently filed a motion to reconsider the court's order and a petition for final fees. The court struck both, citing a prior order requiring Josefina to request leave of the court before filing any document in the trial court or the appellate court. Kowalski appeals from both orders, arguing that the trial court abused its discretion in entering sanctions against her without notice and an opportunity to be heard, entering sanctions without sufficient evidence, and striking her motion to reconsider and petition for final fees. For the reasons that follow, we affirm.
¶ 3 I. BACKGROUND
¶ 4 We first note that the record on appeal only contains the common law record and the transcript of a hearing on April 20, 2018. Kowalski did not file a transcript, bystander's report, or agreed statement of facts for any other trial court proceedings, although she references these proceedings throughout her brief. See Ill. S. Ct. R. 323 (eff. July 1, 2017); Foutch v. O'Bryant, 99 Ill. 2d 389, 391 (1984) ("[A]n appellant has the burden to present a sufficiently complete record of the proceedings at trial[.]"). However, the common law record contains extensive pleadings filed by the parties and the trial court's written orders. As such, we compile below the pertinent facts gleaned from the record before us to address Kowalski's arguments and compile the pertinent facts below. Because notice is at issue in
this case, we specifically note whether Kowalski's presence was referenced in each court order.
¶ 5 On January 22, 2015, Jose instituted this action to dissolve his marriage with Josefina. The parties listed their real property as a multi-unit property located at 2640 South Kedvale Avenue in Chicago and a parcel of land in Uriangato, Guanajuato, in Mexico. An agreed order was entered July 2, 2015, granting Josefina temporary exclusive possession of the marital residence at 2640 S. Kedvale Avenue.
¶ 6 On February 26, 2016, the court ordered that the marital residence be listed for sale immediately following the parties' agreement on a real estate broker. Josefina was permitted to remain in the residence pending the sale. From March 2016 to March 2017, the court, in response to Jose's filings, ordered Josefina several times to cooperate with both the realtor and Jose in selling the marital residence. The court in each order stated that Josefina would be held in contempt or exclusive possession of the residence would be granted to Jose if she failed to comply with the orders. The court finally ordered Josefina to sign the listing agreement in open court on March 31, 2017.
¶ 7 At this point, Kowalski entered her appearance as counsel for Josefina. There was further litigation regarding Josefina's failure to cooperate with the sale of the residence. On June 6, 2017, Jose filed a motion to compel sale of the marital residence.
¶ 8 On July 25, 2017, the court entered an order granting Jose's motion to compel sale of the marital residence, which stated that the parties must execute the real estate sale contract for $90,000. The order also stated that Josefina was present with Kowalski at the hearing but left "due to health circumstances after the court's ruling."
¶ 9 The court's order entered on July 27, 2017, stated that the hearing on July 25 was completed and the judge issued his rulings on that date. It further stated that "due to [Josefina's] unavailability to personally execute the [contract], the Court shall execute [it]." The order noted Kowalski's objection to the execution of the contract. The order also set trial for November 21, 2017.
¶ 10 On August 23, 2017, Josefina filed a motion to reconsider the July 25, 2017 order. Her motion alleged that during the hearing on Jose's motion to compel sale, Josefina fainted and required medical assistance and Kowalski left the courtroom with her client. She further alleged that proceedings continued in the absence of Josefina and Kowalski and that her motion to compel discovery and motion to schedule hearing on petition for maintenance were not heard by the court.
¶ 11 Jose filed an emergency motion to compel disposition of Josefina's motion to reconsider the July 25, 2017 order. On September 19, 2017, the court found that an emergency existed and that Kowalski refused to withdraw the motion to reconsider. The court denied the motion to reconsider and ordered Josefina to appear in court to execute closing documents and if she failed to do so, the court would execute the documents on her behalf. The order stated that "throughout the hours long hearing counsel for [Josefina] made no arguments relevant to [Jose's] motion to compel execution of closing documents and that her arguments kept referring to the real estate contract rather than the closing documents." The court further found that Josefina's motion to reconsider constituted a false pleading and granted Jose leave to file a motion for sanctions related to that motion to reconsider filed by Kowalski.
¶ 12 On September 21, 2017, Josefina filed a motion to reconsider the September 19, 2017 order, and on that same day, the court entered an order denying that motion. The court also
found that the motions to reconsider the July 25, 2017 order and the September 19, 2017 order were not "well grounded in fact or warranted by existing law *** and were brought for the improper purpose of causing unnecessary delay." The court found that the second motion to reconsider was a false pleading. The court executed the closing documents on Josefina's behalf due to her absence. The order noted that Kowalski was present.
¶ 13 On September 25, 2017, Jose filed a motion for sanctions pursuant to Rule 137. He alleged that both of Josefina's motions to reconsider were based upon false allegations and were filed to harass Jose and cause unnecessary delay. The motion requested sanctions imposed against Kowalski for failing to conduct "a reasonable inquiry as to the factualness of the allegations" in the motions to reconsider in contravention of Rule 137. Jose requested $1,935 and $2,615 for attorney fees incurred in addressing each motion to reconsider.
¶ 14 On October 5, 2017, the court addressed several matters in this action and set a hearing date for Jose's motions for sanctions for November 9, 2017. That order stated that Kowalski was present for part of the proceedings on that day but left the courtroom and could not be reached prior to the court setting the hearing date.
¶ 15 On November 9, 2017, a hearing was held regarding Jose's sanctions motions. However, according to the court's order, "approximately thirty minutes into [Jose's] argument" Kowalski informed the court that she had filed two notices of appeal. The sanctions motions were then continued to November 14, 2017. The order also stated that Kowalski was present at this hearing.
¶ 16 On November 14, 2017, the court ordered Josefina to vacate the marital residence by 5:00 p.m. and if she failed to do so, a body attachment would be entered against her. The court also found that Josefina and Kowalski had "engaged in a pattern of attempting to stall or
prevent the sale of the residence." The sanctions motions were again "continued to trial on 11-21-17." The order stated that Kowalski was present for the hearing.
¶ 17 On November 16, 2017, the court granted Jose's emergency motion for exclusive possession of the marital residence due to the pending real estate closing. The court directed Josefina to remove all furniture and personal belongings from the residence by 2:00 p.m. the following day, and if she did not comply, Jose would have authority to do so. The order stated that Kowalski failed to appear.
¶ 18 On November 17, 2017, Josefina filed a motion to reconsider several of the court's orders. This motion, which was signed by Kowalski, referenced the court's orders and the date for trial. A body attachment order was entered against Josefina on November 18, 2017, for failing to vacate the residence.
¶ 19 On November 21, 2017, the court issued multiple orders in this case. The first order denied Josefina's motion to reconsider. That order stated that counsel for both parties were present. The second ordered Josefina to remain in custody until the residence was vacated of all personal belongings. That order stated that the court attempted to contact Kowalski and left a voicemail for her. Josefina filed an emergency motion to reconsider those orders, which was denied.
¶ 20 On November 27, 2017, the court entered an order stating that Josefina "must obtain leave of court, upon written motion and notice, prior to filing any document in this matter in circuit court or appellate court." The order stated that Kowalski was present.
¶ 21 On December 12, 2017, the court lifted the hold on Josefina's release from custody as her personal property had been removed from the residence. The court also appointed Amy Richards to represent Josefina because Kowalski failed to appear in court on two prior court
dates. The case was continued to December 20, 2017, to set a new date for trial. The court noted in its order that Kowalski was present on that date in court but was not in the courtroom when the case was called.
¶ 22 On December 20, 2017, the court's order indicated that Josefina had attempted to contact Kowalski multiple times and received no response. The court ordered Kowalski to turn over her client files to Richards and continued the trial to February 15, 2018. The order also indicated that Kowalski was present on that date but did not return to the courtroom when the case was called.
¶ 23 On January 12, 2018, the court entered an order that stated Kowalski had filed a motion to withdraw from a related appellate case and emailed Jose's counsel regarding a pending motion to certify a bystander's report. On January 18, 2018, Josefina filed a motion to continue the trial, detailing the multiple attempts of Richards to acquire Kowalski's client file and noting that the court's December 20, 2017 order was sent to Kowalski. On January 29, 2018, the court ordered Kowalski to appear in court to turn over Josefina's file and if she did not, a body attachment would be entered. Kowalski did not appear, and a body attachment was entered on February 1, 2018. The court also named Kowalski as a third party in the case "for the limited purpose of administratively allowing the sheriff's department to issue the body attachment."
¶ 24 On February 13, 2018, the court entered a judgment of dissolution in this case. The court also continued Jose's motions for sanctions to February 15, 2018, for a hearing.
¶ 25 Following a hearing on those motions, at which Kowalski was not present, the court found that the motions to reconsider the court's July 25, 2017 order and September 19, 2017 order contained information that was known to be false by Josefina and Kowalski.
Specifically, the order stated that: "[Josefina's] allegations that [Josefina] dropped to ground [sic] during argument on July 25, 2017, that the marital residence was only marketed to friends and family and not listed on MLS, and that the court prohibited counsel for [Josefina] from presenting argument on the emergency nature of [Jose's] Emergency Motion heard on September 19, 2017 were known to be false by [Josefina] and [Kowalski]." The court imposed sanctions in the amount of $11,427.50, which represented Jose's attorney's fees "incurred because of the filing of [Josefina's] Motion to Reconsider the July 25, 2017 Order and Motion to Reconsider the September 19, 2017 Order." The court found the fees to be fair and reasonable. The court also noted in its order that "due notice" was given to Kowalski regarding the hearing.
¶ 26 On March 12, 2018, Kowalski filed a petition for the setting of final fees and costs, requesting a judgment in the amount of $15,824.42 in attorney fees against Josefina and, if she was unable to pay, against Jose. On that same day, she also filed a motion to reconsider the February 15, 2018 order imposing sanctions.
¶ 27 The court held a hearing on those pleadings on April 20, 2018, a transcript of which is contained in the record on appeal. During that hearing, Jose's counsel argued that Kowalski's motion to reconsider should be denied because she did have notice of the sanctions motions and was given an opportunity to be heard. Specifically, counsel argued that Kowalski was present on November 9, 2017, when a hearing on the sanctions motions began and was then continued to trial. Counsel then claimed that her office sent Kowalski notices of the December 20, 2017 trial date and the February 15, 2018 hearing date (though evidence of those certificates of service are not in the record before us). Kowalski argued that she did not receive notice of the hearing that was scheduled and that the last notice she received was
regarding a bystander's report in January 2018. The court took judicial notice of the November 9, 2017 order that stated that as Jose's counsel was arguing the sanctions motions, Kowalski informed the court that she had filed multiple appeals on Josefina's behalf. Jose also argued that the court had previously barred Josefina from filing any documents without leave of the court. The court took judicial notice of the order containing that ruling and subsequently struck Kowalski's petition for final fees and motion to reconsider.
¶ 28 Kowalski now appeals from the court's order imposing Rule 137 sanctions and striking her petition for final fees and motion to reconsider. Jose did not file a brief in response. On March 21, 2019, we entered an order taking the case on the record and Kowalski's brief only. Thus, we consider Kowalski's appeal without the benefit of Jose's brief. See First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d 128, 133 (1976) (setting forth the principles for disposition of appeals in cases where the appellee has not filed a brief).
¶ 29 II. ANALYSIS
¶ 30 A. Rule 137 Sanctions
¶ 31 Kowalski argues that the trial court abused its discretion in sanctioning her under Rule 137 without notice and an opportunity to be heard and that those sanctions were improperly imposed and calculated. This court will not overturn a trial court's rulings on Rule 137 sanctions unless there has been an abuse of discretion. Schenider v. Schneider, 408 Ill. App. 3d 192, 199 (2011). Abuse of discretion is found where the trial court's decision is "arbitrary, fanciful, or unreasonable, or where no reasonable person would take the view adopted by the trial court." Patton v. Lee, 406 Ill. App. 3d 195, 199 (2011).
¶ 32 1. Notice
¶ 33 Kowalski first asserts that she was not given notice of the hearing on the sanctions motions and thus did not have an opportunity to be heard as the hearing was held in her absence. Procedural due process requires that parties receive notice and an opportunity to be heard. Stewart v. Lathan, 401 Ill. App. 3d 623, 626 (2010). "The general purpose of notice is to apprise the person affected of the nature and purpose of a proceeding." Dolan v. O'Callaghan, 2012 IL App (1st) 111505, ¶ 51; see also Hyon Waste Management Services, Inc. v. City of Chicago, 53 Ill. App. 3d 1013, 1018 (1977) ("The test of the adequacy of notice is whether it clearly apprises a deference of the claims to be defended against and whether the defendant, on the basis of the notice given, could anticipate the possible effects of the proceeding.").
¶ 34 Here, Kowalski had notice of the sanctions motions filed on September 25, 2017. The record shows that the motion contained a notice of filing with Kowalski's mailing address and email address and a certificate of service signed by Jose's counsel. The sanctions motions were addressed in the court's October 5, 2017 order. This order stated that Kowalski was present at one point in the hearing but was absent from the courtroom when the ruling was issued. The order stated that the motions were continued to a later date. Thus, Kowalski had actual knowledge of the sanctions motions and was aware of their nature, i.e. that they specifically requested that sanctions be imposed against her for knowingly filing false pleadings.
¶ 35 Kowalski also had continuing notice of the motions as the court again them to another date and then continued them to trial, which was set for November 21, 2017. Both of those continuances were issued with Kowalski present. The sanctions motions were not addressed again for some time due to the need to address more urgent matters related to Josefina's
failure to vacate the home. The trial was continued to December 20, 2017, and Kowalski was present on that date but was not in the courtroom when the case was called. The court's order on December 20, 2017, continued the trial to February 13, 2018. Again, the order noted that Kowalski was present on that date but not in the courtroom at the time the case was called. Richards also stated in a motion for continuance that she sent the December 20, 2017 order to Kowalski, which contained the new trial date. Jose's counsel stated at the April 20, 2018 hearing that she had sent notice of the new trial date to Kowalski. The record also shows multiple failed attempts by all parties involved to contact Kowalski; however, she did present herself in court on many of the relevant hearing dates during which the continuance of the trial and the sanctions motions were discussed, despite her apparent absence when the case was called or when the court issued its rulings. Moreover, Kowalski references many of these orders in her various motions on Josefina's behalf, which suggests that she was aware of the trial continuances. Eventually, her failures to appear in court and to give Richards her client file resulted in a body attachment issued on her.
¶ 36 Finally, Kowalski was given an opportunity to be heard as the court specifically held a hearing on the sanctions motions. The court's order on February 15, 2018, stated that she was given "due notice" of the hearing, but she did not appear.
¶ 37 The record shows that Kowalski had actual knowledge of the sanctions motions, had actual knowledge that the motions were continued to trial, and was given an opportunity to be heard. Kowalski's failure to be heard can only be attributed to herself. Accordingly, we conclude that the trial court did not abuse its discretion when it sanctioned Kowalski under Rule 137 as she was given notice of the nature of the sanctions motions and the opportunity to defend herself before the court.
¶ 38 2. Motions to Reconsider
¶ 39 Kowalski further contends that the sanctions were improperly imposed because the motions to reconsider were not false pleadings and no evidence was presented to support the calculation of attorney fees incurred. Our review of a trial court's ruling on a motion for sanctions focuses on whether the trial court's decision was (1) informed, (2) based on valid reasoning, and (3) follows logically from the facts. Whitmer v. Munson, 335 Ill. App. 3d 501, 514 (2002).
¶ 40 Pursuant to Rule 137, both litigants and attorneys have an affirmative duty to conduct an investigation of the facts and law before filing any document with the courts. Polsky v. BDO Seidman, 293 Ill. App. 3d 414, 427 (1997). Rule 137 states:
"The signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion or other paper; 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 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 paper 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 paper, including a reasonable attorney fee." Illinois Supreme Court Rule 137 (eff. Feb. 1, 1994).
This rule is "penal in nature and must be strictly construed." Rankin ex rel. Heidlebaugh v. Heidlebaugh, 321 Ill. App. 3d 255, 260 (2001). The purpose of the rule is "to prevent future abuse of the judicial process or discipline in the case of past abuses." Schneider, 408 Ill. App. 3d at 200. The rule, however, is not intended to punish attorneys and their clients simply because they were "zealous, yet unsuccessful." Peterson v. Randhava, 313 Ill. App. 3d 1, 7 (2000). Courts are to use an objective standard in determining whether "reasonable inquiry" into the facts was made under the circumstances as they existed at the time of filing. Whitmer, 335 Ill. App. 3d at 514. The trial court's decision must also "clearly set forth the basis for the result reached in order to be afforded deferential treatment on review." Peterson, 313 Ill. App. 3d at 8.
¶ 41 It appears that a hearing was held on Jose's sanctions motions on February 15, 2017. There is no transcript for that hearing in the report of proceedings, and Kowalski has not included a bystander's report for this court's review. As stated previously, it is Kowalski's burden to supply the court with a sufficiently complete record. See Foutch, 99 Ill. 2d at 391-92. Moreover, "'[w]here the issue on appeal relates to the conduct of a hearing or proceeding, the issue is not subject to review absent a report or record of the proceeding.'" State Place Condominium Ass'n v. Magpayo, 2016 IL App (1st) 140426, ¶ 16 (quoting Webster v. Hartman, 195 Ill. 2d 426, 432 (2001)).
¶ 42 Kowalski concedes that she did not provide a sufficient record and requests leniency because she was not present for that hearing. However, we have already determined that she had notice of the hearing and she has failed to include transcripts or bystander's reports for several hearings at which she was present. While we acknowledge her position, we simply cannot determine what evidence was presented at the hearing without a report of proceedings
from this hearing. Under these circumstances, "a reviewing court presumes that the trial court's order conformed to the law and had a sufficient factual basis." Wing v. Chicago Transit Authority, 2016 IL App (1st) 153517, ¶ 9; see also Smolinski v. Votja, 363 Ill. App. 3d 752, 757 (2006) (holding that a reviewing court may not "guess" at the harm to an appellant where a record is incomplete and must "refrain from supposition and decide accordingly"). Additionally, any doubts arising from the incompleteness of the record will be resolved against the appellant. Foutch, 99 Ill. 2d at 392. Given that we have an incomplete record, we must presume that the trial court's order was in conformity with the law and had a sufficient factual basis. See Wing, 2016 IL App (1st) 153517, ¶ 10 (finding that "the appropriate remedy [was] to affirm the judgment, not to dismiss the appeal"). Finally, we note that the court's order sufficiently sets forth its basis for imposing sanctions, i.e. the allegations in the motions that Josefina dropped to the ground during argument, that the marital residence was only marketed to friends and family, and that the court prohibited counsel from presenting argument were known to be false by both Josefina and Kowalski. From the court's written order, we can reasonably infer that the court made an informed decision based on valid reasoning that followed from the facts contained in the record before us. Accordingly, we conclude that the trial court did not abuse its discretion in imposing Rule 137 sanctions against Kowalski.
¶ 43 Finally, Kowalski claims that the award of attorney fees in the amount of $11,427.50 was improper because there was no evidence in the record supporting that amount. For the same reason as above, we presume, without a record of the proceeding, that the order had a sufficient factual basis. Accordingly, we find that the trial court's award of attorney fees was correct and affirm the order.
¶ 44 B. Stricken Motions
¶ 45 Kowalski also claims that the trial court abused its discretion in striking her motion to reconsider sanctions and her petition for final fees. She contends that the trial court should not have struck those motions on the basis of its prior ruling requiring Josefina to seek leave of the court before filing a document. According to Kowalski, that ruling should not have applied to her because she had withdrawn as Josefina's counsel and was a third party to the action.
¶ 46 As a preliminary matter, we note that this court is without a transcript or bystander's report from the hearing at which the trial court made its ruling. See Foutch, 99 Ill. 2d at 391-92 (holding that it is appellant's burden to furnish the court with a sufficiently complete record). Thus, we are unable to determine to whom the order was meant to apply. Moreover, Kowalski does not include any support for her position that the order should not apply to her. We will not conduct legal research to find support on Kowalski's behalf. Walters v. Rodriguez, 2011 IL App (1st) 103488, ¶ 6.
¶ 47 We further find Kowalski's argument that striking her petition for final fees constituted another sanction upon her to be meritless. It is well established that the "trial court has inherent authority to control its docket and impose sanctions for failure to comply with a court order." Dolan v. O'Callaghan, 2012 IL App (1st) 111505, ¶ 65. Here, the court found many of Josefina's filings to be a stall tactic in order to avoid selling the marital residence. In order to resolve that issue, the court entered this order requiring counsel to request leave of the court prior to filing documents. This was simply the manner in which the court chose to control its docket. It did not prevent Josefina, or Kowalski, from litigating the case. Instead, the order permitted the court to adequately and timely resolve the action without unnecessary
delay. Thus, the order to strike falls within the court's authority to control its docket. Furthermore, we do not perceive the court's order to be in the nature of a sanction because Kowalski could have requested leave of the court prior to filing her petition. She was not completely barred from requesting a judgment on her final fees or from filing a motion to reconsider. Thus, upon review of the limited record before us, we do not find that the trial court abused its discretion in striking Kowalski's petition for final fees and motion to reconsider.
¶ 48 Even if we were to construe the court's striking of the petition as a sanction, we still would not find that the court abused its discretion under these circumstances. This court has recognized that a trial court may impose sanctions, including dismissal of an action, based on its "inherent authority to control its docket." Dolan, 2012 IL App (1st) 111505, ¶ 65. A failure to comply with court orders is sanctionable conduct. Sander v. Dow Chemical Co., 166 Ill. 2d 48, 68 (1995) (stating that a trial court has the inherent authority to dismiss a cause of action for failure to comply with court orders where the party has "shown a deliberate and contumacious disregard for the court's authority). Assuming the court's striking of Kowalski's petition and motion was a sanction, reversal of that decision is only warranted if the trial court has acted "arbitrarily without the employment of conscientious judgment, exceed[ed] the bounds of reason and ignore[d] recognized principles of law or if no reasonable person would take the position adopted by the court." In re Marriage of Baumgartner, 384 Ill. App. 3d 39, 61 (2008). Based on the record before us, we cannot say that no reasonable court would have stricken those pleadings in light of the court's prior ruling, for which Kowalski was present, and further, given her history of frivolous filings and causing unnecessary delay in this case.
¶ 49 III. CONCLUSION
¶ 50 For the reasons stated, we affirm the judgment of the circuit court of Cook County.
¶ 51 Affirmed.