Berg v. Mid America Indus., Inc.

• Decision Date: 21 November 1997
• Docket Number: No. 1-96-3337,1-96-3337
• Citation: 293 Ill.App.3d 731,688 N.E.2d 699,228 Ill.Dec. 1
• Parties: , 228 Ill.Dec. 1 Albert E. BERG and A.E. Berg Co., Plaintiffs-Appellants, v. MID AMERICA INDUSTRIAL, INC., and Richard Z. Pierce, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 699

688 N.E.2d 699

293 Ill.App.3d 731, 228 Ill.Dec. 1

Albert E. BERG and A.E. Berg Co., Plaintiffs-Appellants, v. MID AMERICA INDUSTRIAL, INC., and Richard Z. Pierce Defendants-Appellees.

No. 1-96-3337.

Appellate Court of Illinois First District, Fifth Division.

Nov. 21, 1997.

Riordan, Larson, Bruckert & Moore, Chicago (Alan Fulkerson, of counsel), for Plaintiffs-Appellants.

Joseph Amarilio, Chicago, for Defendants-Appellees.

Presiding Justice HARTMAN delivered the opinion of the court:

Plaintiffs, Albert E. Berg (Berg) and A.E. Berg Co. (Berg Co.), appeal the circuit court's denial of their motion to vacate its order dismissing with prejudice their two-count complaint and causes of action. They raise as issues for review whether (1) defendants' motion to dismiss was properly before the court; (2) the dismissal was an appropriate sanction and required a hearing before it was entered; and (3) the complaint filed by a layperson on his own behalf and on behalf of a corporation was a nullity.

On October 19, 1995, Berg, individually and on behalf of his corporation, Berg Co., filed a two-count complaint against Mid-America Industrial, Inc. (Mid-Am), and its president, Richard Z. Pierce (Pierce) individually. Count I sought $17,227 in salary and expenses allegedly owed to Berg individually by Mid-Am. Count II sought recovery of $15,000 allegedly owed to Berg Co. under equipment leases with Mid-Am. Two summonses appear in the record. Each contained Berg's typed name, address, and telephone numbers. Each left blank the line beginning with the printed words, "Attorney for." On the summons dated October 19, 1995, the line beginning with the legend "Atty No." was left blank. On the summons dated November 1, 1995, the numbers "08993," apparently assigned to an attorney who had done work for both parties, Edward A. Scott, was written in by hand. The identity of the person who wrote the numbers is not entirely clear, but is claimed by defendants to have been Berg himself. Berg is not and never has been a licensed attorney.

On November 9, 1995, Mid-Am and Pierce moved to dismiss the complaint because it was filed by a layperson. Under Illinois law, a corporation can file a complaint only through a licensed attorney; any action filed without an attorney is null and void ab initio. Housing Authority of Cook County v. Tonsul, 115 Ill.App.3d 739, 71 Ill.Dec. 369, 450 N.E.2d 1248 (1983) (Housing Authority ).

On December 14, 1995, Scott sought leave to appear on behalf of Berg and Berg Co. At the same hearing, Mid-Am and Pierce moved to disqualify Scott from representing plaintiffs in the proceedings. In support of the motion to disqualify, Pierce submitted a sworn affidavit that Scott represented defendants in three pending legal matters, and knew of confidential information and the financial situation of the company. In response, Scott averred that he worked for defendant on only three occasions, never conferred personally with Pierce, and knew nothing of defendant's financial situation. In reply to Scott's response, Pierce submitted a supplemental certification, which is not included in the record, but is attached to defendants' brief. The certification further contradicts Scott's affidavit, claiming that Scott had worked on six cases for Mid-Am and had conferred personally with Pierce. The order entered on December 14, 1995 granted the parties time to respond to each other and set the matter for hearing on January 11, 1996. On January 11, 1996, the motion to disqualify was continued to February 23, 1996.

The next order appearing in the record reveals that on March 1, 1996, the circuit court granted defendants' motion to disqualify Scott from representing plaintiffs and set the case for a status hearing on April 12, 1996, the date on which the court heard the case for status. Scott was present in the courtroom. The court admonished Scott to refrain from any comment. No one else representing plaintiffs was then present. According to papers filed by defendants in the circuit court, made part of the record, "the court on its own motion asked if there is a motion to dismiss." Defendants then moved to dismiss, which the circuit court granted with prejudice.

On May 10, 1996, Alan L. Fulkerson moved for leave to appear on plaintiffs' behalf, and to vacate the dismissal order of April 12, arguing that plaintiffs never had notice of the April 12 status hearing and that under Housing Authority, 115 Ill.App.3d 739, 71 Ill.Dec. 369, 450 N.E.2d 1248 (1983), Count II was void ab initio.

On August 23, 1996, the circuit court denied the motion to vacate and again dismissed the case, this time sua sponte. In denying the motion to vacate, the court asserted that plaintiffs and Scott had "deliberate disregard of this court's authority * * *." In support of the court's August 23 sua sponte order dismissing plaintiff's complaint, the court cited Clymore v. Hayden, 278 Ill.App.3d 862, 215 Ill.Dec. 512, 663 N.E.2d 755 (1996) for the proposition that a circuit court can dismiss an action as a sanction.

Plaintiffs appeal. We reverse and remand for reasons which follow.

I

Plaintiffs initially allege that the circuit court abused its discretion in denying their August 23, 1996 motion to vacate the dismissal order of April 12, 1996.

The circuit court, in its discretion, may vacate a final order upon any terms that shall be reasonable. 735 ILCS 5/2-1301(e)(West 1993). The guiding principle in a motion to vacate "is that the petition invokes equitable powers of the court to prevent enforcement of a judgment or dismissal of an action when it would be unfair, unjust, or inequitable." Kirk v. Michael Reese Hospital & Medical Center, 275 Ill.App.3d 170, 173, 211 Ill.Dec. 550, 655 N.E.2d 933 (1995). A motion to vacate should be granted or denied in the "interests of justice and fairness." Kirk, 275 Ill.App.3d at 173, 211 Ill.Dec. 550, 655 N.E.2d 933. The court's denial of the motion to vacate will not be disturbed unless an abuse of discretion is identified. Ward v. Rosenfeld, 204 Ill. App.3d 908, 912, 150 Ill.Dec. 144, 562 N.E.2d 674 (1990).

A

Plaintiffs first contend that they did not receive notice of the April 12 hearing, which defendants dispute.

Parties to an action who have appeared are entitled to notice of any impending motions or hearings. City of Chicago v. American National Bank & Trust Co., 171 Ill.App.3d 680, 688, 121 Ill.Dec. 608, 525 N.E.2d 915 (1988). In addition, Rule 2.1 of the circuit court of Cook County requires written notice of motion hearings, to be given to all parties who have appeared. Cook Co. Cir. Ct. R. 2.1(a)(eff. April 23, 1992).

Defendants submit that, because Scott was present at the April 12 status hearing, plaintiffs must have had notice of the hearing. Plaintiffs do not dispute that Scott was in court on April 12. Defendants, however, do not argue that after Scott was disqualified notice to him is imputed to plaintiffs as a matter of law (Foley v. Metropolitan Sanitary District of Greater Chicago, 213 Ill.App.3d 344, 157 Ill.Dec. 514, 572 N.E.2d 978 (1991)), but conclude that, because Scott knew of the April 12 hearing, plaintiffs did as well. Nothing in the record, however, demonstrates that Scott and plaintiffs communicated between March 1, the date of disqualification, and April 12. Were we to assume, for the sake of argument, that notice of a hearing on status of the case was sent and received, there still was no notice to plaintiffs that the motion to dismiss also would be considered and acted on at that time. The motion to dismiss the case was not set for hearing in any circuit court order between the December 14, 1995 order, which allowed the motion to disqualify Scott to be filed, and the April 12, 1996 order, which dismissed the action. The court's orders of January 11, 1996, and March 1, 1996, did not mention the motion to dismiss. The March 1 order merely stated that the case was set for status on April 12, 1996.

It would be unjust, unfair, and inequitable to allow the dismissal order to stand because, from the foregoing litany of events, it is unclear that plaintiffs received proper notice of the April 12 hearing. Clearly, the circuit court's spontaneous invitation to defendants at that hearing to make the motion to dismiss demonstrates that plaintiffs could not have had notice that dismissal was contemplated.

B

Defendants suggest that the circuit court properly dismissed plaintiffs' complaint as a sanction, thereby justifying the lack of notice to plaintiffs; however, the preamble of the April 12, 1996 dismissal order is to the contrary, having recited: "This cause coming on to be heard for status and Defendants' previously filed motion to dismiss the Complaint at Law, notice having been given and the Court being informed in the premises, * * *." (Emphasis added.) The order makes no reference to "sanctions."

The circuit court, on August 23, 1996, entertained plaintiffs' motion to vacate the order of April 12, which it denied, explicitly "relying upon Clymore v. Hayden, 278 Ill.App.3d 862 [215 Ill.Dec. 512, 663 N.E.2d 755] (1996), in support of its sue [sic] sponte action to dismiss plaintiffs' complaint based upon plaintiffs deliberate disregard of this Court's authority." Defendants also rely upon Sander v. Dow Chemical Co., 166 Ill.2d 48, 209 Ill.Dec. 623, 651 N.E.2d 1071 (1995), to justify the circuit court's action.

Neither Clymore nor Sander are helpful in resolving the issues presented here. Clymore was an appeal from the dismissal of a malpractice action as a discovery sanction pursuant to Rule 219 (134 Ill.2d R.219) (Rule 219). There, for a period of two years, "plaintiff's counsel * * * caused delay" disregarding the circuit court's pre-trial and discovery orders in seven specific instances, which the opinion set forth in detail. Clymore, 278 Ill.App.3d at 867, 215 Ill.Dec. 512, 663 N.E.2d 755. Based upon plaintiff's consistent and deliberate disregard of...