Cleveland Hair Clinic, Inc. v. Puig

• Decision Date: 06 February 1997
• Docket Number: No. 97-1178,97-1178
• Citation: 106 F.3d 165
• Parties: CLEVELAND HAIR CLINIC, INC., Plaintiff-Appellee, v. Carlos J. PUIG, Puig Medical Group, S.C., and Rodney Haenschen, Defendants. Appeal of Michael L. Tinaglia and DiMonte, Schostok & Lizak.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 165

106 F.3d 165

CLEVELAND HAIR CLINIC, INC., Plaintiff-Appellee, v. Carlos J. PUIG, Puig Medical Group, S.C., and Rodney

Haenschen, Defendants.

Appeal of Michael L. Tinaglia and DiMonte, Schostok & Lizak.

No. 97-1178.

United States Court of Appeals,

Seventh Circuit.

Submitted Jan. 24, 1997.

Decided Jan. 27, 1997.

Opinion Issued Feb. 6, 1997.

Alan S. Rutkoff (submitted), Gary L. Prior, Corey Rubenstein, McDermott, Will & Emery, Chicago, IL, for plaintiff-appellee.

Juris Kins, Thomas L. Brejcha, Jr., Abramson & Fox, Chicago, IL, Stephen Schostok, William M. Dunn, Dimonte, Schostok & Lizak, Park Ridge, IL, Thomas F. Ging, Alicia Collias Schneider, Hinshaw & Culbertson, Chicago, IL, for defendants.

Jerome H. Torshen, Zoran Dragutinovich, Torshen, Spreyer & Garmisa, Chicago, IL, for appellants.

Before BAUER, COFFEY, and EASTERBROOK, Circuit Judges.

EASTERBROOK, Circuit Judge.

Last November the district court, after concluding that defendants and their lawyer Michael Tinaglia engaged in sanctionable misconduct, directed Tinaglia and his firm to remit approximately $100,000, in partial payment of an obligation still to be calculated. Tinaglia and his firm (collectively Tinaglia) filed a notice of appeal, which we dismissed for lack of jurisdiction. Cleveland Hair Clinic, Inc. v. Puig, 104 F.3d 123 (7th Cir.1997). Back in the district court, Tinaglia flatly refused to pay. He did not give a reason; he simply informed the court that he would not comply. The judge did not cotton to defiance and has held lawyer and law firm in contempt, adding a daily fine of $300 to the principal obligation until payment has been made. Use of the contempt power is an appropriate way to enforce a sanction for misconduct, which is not an ordinary money judgment. See Alpern v. Lieb, 11 F.3d 689 (7th Cir.1993). Again Tinaglia appealed. He asked us to stay the order on condition that he post a supersedeas bond. This was a condition we imposed last time--apparently without success, for if Tinaglia had posted a proper bond his adversaries would not now need his cooperation to collect. At all events, neither a stay nor a bond is appropriate, for there is still no jurisdiction. We dismissed Tinaglia's second appeal on January 27 with the notation that an explanation would follow. This is the promised explanation.

Our prior opinion gave two principal reasons why an appeal must wait. First, the amount of the sanction remains to be determined, and the award therefore is not a "final" decision. Second, Tinaglia and the defendants have been held jointly and severally liable for the sanction. Because the defendants must wait until the final judgment to file their own appeal, Tinaglia can file his own appeal at the same time and obtain complete relief, so this interlocutory appeal does not satisfy the requirements of the collateral-order doctrine. We added that the requirement of immediate payment does not make the order appealable, because the recipients are solvent and can repay if Tinaglia prevails in the end.

An adjudication of civil contempt used to enforce a judicial order is not appealable if the underlying order is itself not appealable. Fox v. Capital Co., 299 U.S. 105, 57 S.Ct. 57, 81 L.Ed. 67 (1936); Doyle v. London Guarantee & Accident Co., 204 U.S. 599, 27 S.Ct. 313, 51 L.Ed. 641 (1907); In re Christensen Engineering Co., 194 U.S. 458, 24 S.Ct. 729, 48 L.Ed. 1072 (1904) (dictum); Hayes v. Fischer, 102 U.S. 121, 26 L.Ed. 95 (1880); In re Rimsat, Ltd., 98 F.3d 956, 963 (7th Cir.1996); Powers v. Chicago Transit Authority, 846 F.2d 1139, 1141 (7th Cir.1988). This principle is an essential complement to the final-decision rule. Tinaglia's conduct shows what an inroad on that rule would be made if all someone had to do, to obtain appellate review of an interlocutory order, was to defy it. Ensuing appeals would prolong and complicate litigation at the same time as they would undermine district judges' ability to manage their cases. Accepting an appeal from this decision would split a single issue into at least four appellate units: (i) whether Tinaglia engaged in any sanctionable misconduct (the only question now open); (ii) how much the plaintiff is entitled to receive (the question sure to come up on the next appeal, if the first should be resolved adversely to Tinaglia); (iii) whether the defendants also are responsible for any portion of the misconduct (a subject that they can present at the end of the case); and (iv) the allocation of liability between defendants and Tinaglia (a question that Tinaglia could present by filing his own appeal from the final decision). It was to avoid such an unacceptable multiplication of appeals, delay, and expense that we dismissed Tinaglia's first appeal--and now he is back, asking for the very thing to which we held he is not entitled.

Tinaglia observes that non-parties usually may appeal from findings that they are in contempt of court, even though parties could not appeal from identical orders. E.g., United States Catholic Conference v. Abortion Rights Mobilization, Inc., 487 U.S. 72, 108 S.Ct. 2268, 101 L.Ed.2d 69 (1988); Cobbledick v. United States, 309 U.S. 323, 328, 60 S.Ct. 540, 542-43, 84 L.Ed. 783 (1940). Tinaglia is not a party to the case; he is not even defendants' current lawyer. One court of appeals permitted a lawyer to appeal from an order adjudicating him in contempt. In re Murphy, 560 F.2d 326, 332-33 n. 10 (8th Cir.1977). The rationale is simple: for the non-party, the adjudication in contempt usually is the "final decision" in the case; there will never be another, more conclusive, order.

Things are otherwise for Tinaglia--the point of our first opinion, which discusses at some length the significance of his status as a non-party. Matters will not come to closure until the...