People ex rel. Burris v. Maraviglia

• Decision Date: 23 December 1993
• Docket Number: No. 1-92-0347,1-92-0347
• Parties: , 201 Ill.Dec. 285 The PEOPLE of the State of Illinois, ex rel. Roland W. BURRIS, Attorney General of Illinois, Plaintiff-Appellee, v. Robert D. MARAVIGLIA, Defendant (Alvin R. Becker and the law firm of Beermann, Swerdlove, Woloshin, Barezky, Becker, Genin & London, Contemnors-Appellants).
• Court: United States Appellate Court of Illinois

Page 717

636 N.E.2d 717

264 Ill.App.3d 392, 201 Ill.Dec. 285

The PEOPLE of the State of Illinois, ex rel. Roland W BURRIS, Attorney General of Illinois, Plaintiff-Appellee, v. Robert D. MARAVIGLIA, Defendant (Alvin R. Becker and the law firm of Beermann, Swerdlove, Woloshin, Barezky Becker, Genin & London, Contemnors-Appellants).

No. 1-92-0347.

Appellate Court of Illinois First District, Sixth Division.

Dec. 23, 1993.

Rehearing Denied Feb. 1, 1994.

Law Firm of Beermann, Swerdlove, Woloshin, Barezky, Becker, Genin & London, Chicago (Alvin R. Becker, Miles N. Beermann, Howard A. London and Joel M. Horwich, of counsel), for contemnors-appellants.

Roland W. Burris, Atty. Gen. and Rosalyn B. Kaplan, Sol. Gen., Chicago (Deborah L. Ahlstrand, Asst. Atty. Gen., of counsel), for plaintiff-appellee.

Justice GIANNIS delivered the opinion of the court:

Appellants, Alvin R. Becker and the law firm of Beermann, Swerdlove, Woloshin, Barezky, Becker, Genin & London (hereinafter Beermann, Swerdlove) appeal from a civil contempt order entered in a consumer fraud action brought by the Attorney General of Illinois against defendant Robert D. Maraviglia. The trial court held appellants in contempt for their refusal to comply with an order requiring the submission of proposed findings of fact and conclusions of law. The appellants, who represented defendant Maraviglia in the consumer fraud case, based their noncompliance upon defendant Maraviglia's refusal to pay for additional legal services. Appellants also challenge the trial court's denial of their request to withdraw as counsel for Maraviglia in the case brought by plaintiff.

The record reveals that on July 13, 1987, the Attorney General of the State of Illinois filed a consumer fraud action against defendant Robert D. Maraviglia. The complaint alleged that defendant Maraviglia was a broker of printed classified advertisements under 13 business names and that he made misrepresentations to various advertisers and/or received payment for services not requested or not performed. On July 15, 1987, the law firm of Beermann, Swerdlove, Woloshin, Barezky, and Berkson by attorney Alvin Becker filed an appearance on behalf of defendant. Defense counsel also filed an answer which denied the substantive allegations in the complaint.

Over the next year, the parties engaged in discovery and other pretrial matters, including an unsuccessful attempt to settle the litigation. Between June 13, 1988, and March 9, 1989, a bench trial was conducted consisting of seven days of testimony and one hearing for admission of stipulated documents. In addition to the witnesses who testified in person at trial, approximately 12 evidence depositions were admitted by stipulation, and hundreds of exhibits and admissions of facts or documents were before the trial court.

After the parties rested on March 9, 1989, the trial court ordered the submission of post-trial memoranda, including proposed findings of fact and conclusions of law, in accordance with a specified date schedule. Counsel for defendant did not raise any objection to the filing of the memoranda. After the filing dates had been rescheduled twice, an agreed order was entered on May 5, 1989, which required the plaintiff to file its proposed findings of fact and conclusions of law by June 2, 1989, and required defendant to file his post-trial memorandum by July 7, 1989. Plaintiff was given until July 21, 1989 to reply, and the cause was set for decision on August 29, 1989. The plaintiff timely filed its proposed findings of fact and conclusions of law. Plaintiff's post-trial memorandum included a 52-page description of the evidence presented at trial as well as a summary of relevant legal authority. On July 5, 1989, the court granted plaintiff's motion to amend the pleadings to conform to the proof, and the deadline for filing of defendant's post-trial memorandum was suspended pending settlement discussions.

Over the next nine months, the cause was periodically continued for settlement status reports. On April 5, 1990, the trial court reinstated the uncompleted portion of the briefing schedule, granting defendant until May 20, 1990, to file his proposed findings of fact and conclusions of law. After several additional status dates, the trial court entered three orders granting defendant additional time to prepare his post-trial memorandum.

On December 18, 1991, attorney Joel Horwich appeared on behalf of defendant and requested the right to proceed without filing proposed findings of fact and conclusions of law because defendant was unwilling to pay for preparation of the post-trial memorandum. The trial court denied this request, stating that the evidence adduced at trial was very complex, involving 30 to 40 entities, and that the trial had been concluded a long time ago for reasons which were not attributable to the court. The court indicated further that, in order to be fair, the court would be required to "build [the defendant's] case from scratch" to respond to the post-trial memorandum already filed by the plaintiff, unless defendant settled the case or agreed that the plaintiff would win. The court also stated that the defendant's refusal to pay for additional legal services had been brought up several months ago, and appellant Becker had indicated that he would prepare the post-trial memorandum. When Horwich stated that counsel was unable to locate their client, the trial court noted that further communications were unnecessary to prepare the proposed findings of fact and conclusions of law which were based upon the trial record. The court reiterated its previous orders, but extended the defendant's filing deadline to January 22, 1992.

On January 22, 1992, attorney Timothy Kelly appeared on behalf of defendant because Becker was out of town. Kelly indicated that the firm had filed a written motion to withdraw as counsel for defendant. According to Kelly, counsel attempted to serve defendant by mail, but the motion had been returned undelivered by the post office. A prior oral motion to withdraw had been denied by the court. Kelly stated that because there was a large outstanding balance owed by defendant, the firm of Beermann, Swerdlove was unable to perform any further services on behalf of defendant.

In response, the trial court stated that if counsel refused to file a post-trial memorandum, judgment would be entered in favor of the plaintiff. Kelly objected, pointing out that the court had heard evidence on disputed questions of fact. Thereafter, the court reiterated the prior orders requiring the submission of proposed findings of fact and conclusions of law on behalf of defendant. When defense counsel unequivocally stated that the firm would not file a post-trial memorandum, the court stated that counsel would be held in contempt for refusal to comply with a court order. The court explained further that a post-trial memorandum from defendant was necessary prior to issuing a decision because the court did not have a law clerk to assist in going through the evidence which involved 30 to 40 incidents and numerous entities under which defendant was doing business. The court stated that it was the obligation of defense counsel, as defendant's attorney and as an officer of the court, to go through the evidence and build the defendant's case. The trial court expressed the view that it was not fair to the citizens of the county for the court to expend the time to perform work that should be done by defense counsel. The cause was continued to allow appellant Becker to personally appear before the court.

The written motion to withdraw alleged that defense counsel had not filed a post-trial memorandum because defendant moved without leaving a forwarding address and could not be found by counsel. The motion alleged further that in abstracting the trial testimony, counsel had expended in excess of $3,500 which would never be paid and that the preparation of the post-trial memorandum would result in an expense of at least an additional $2,500. Finally, the motion asserted that the trial court lacked authority to order counsel for perform services for which he would not be paid, and appellants declined to prepare the post-trial memorandum. The motion to withdraw was supported by a photocopy of an itemized statement issued by appellants to defendant Maraviglia on November 30, 1991. This statement reflected that Maraviglia had no previous balance, but owed a total of $3,610.55 for legal services and disbursements from March 26, 1990 through November 30, 1991.

On January 27, 1992, appellant Becker appeared before the trial court and requested leave to withdraw as counsel pursuant to his written motion which had been personally served upon the defendant at an address provided by counsel for the plaintiff. Becker stated that, as a matter of principle, courts should not have the authority to order the filing of post-trial memoranda in this type of case where the trial has been concluded and the memoranda amount to a written closing argument. In response, the trial court stated that, as a matter of principle, the attorneys, as officers of the court, have an obligation to conclude their cases and to see to the administration of justice. The court stated further that it should not be required to construct the defendant's case, and the assistance of counsel was needed to organize the material adduced at trial so that a ruling could be entered. The court denied the motion to withdraw as counsel and offered Becker additional time to file proposed findings of fact and conclusions of law. Becker then stated that a post-trial memorandum would not be filed on behalf of defendant, and the court held counsel in direct contempt for his refusal to comply with the court's order. Thereafter, the cause was continued to January 31, 1992, so a written contempt order could be prepared.

On January 31, 1992, defendant Robert Maraviglia and appe...