People ex rel. Illinois State Dental Society v. Iole
| Decision Date | 19 April 1974 |
| Docket Number | No. 59129,59129 |
| Citation | 19 Ill.App.3d 894,312 N.E.2d 328 |
| Parties | PEOPLE of the State of Illinois ex rel. ILLINOIS STATE DENTAL SOCIETY, an Illinois corporation not for profit, et al., Plaintiffs- Appellees, v. Frank IOLE et al., Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
Kenneth N. Flaxman, Chicago, for defendant-appellant.
Bernard E. Epton and Russell S. Barone, Epton & Druth Ltd., Chicago, for plaintiffs-appellees.
This is an appeal from an action brought to enforce compliance with an injunctive decree barring defendant from engaging in acts constituting the unlawful practice of dentistry. After defendant was found guilty of violating the injunction, a new decree was entered prohibiting him from working as a dental technician without first obtaining leave of the court. In addition, a judgment for $1785 in costs was entered against defendant.
On appeal defendant contends that (1) the decree conditionally restraining him from accepting employment as a dental technician is an overbroad injunction, (2) there is no express statutory provision authorizing the award of costs in a case of this nature, and (3) the judgment for costs was not supported by the evidence.
On July 21, 1971, pursuant to Ill.Rev.Stat.1969, ch. 91, par. 71a, a permanent injunction was entered against defendant restraining him from engaging in acts constituting the practice of dentistry. It is uncontroverted that almost immediately thereafter defendant embarked upon a series of acts in direct violation of the injunction, and that these acts continued for a period of approximately one year.
On July 13, 1972, plaintiffs filed a petition to show cause why defendant should not be held in contempt of court. In support of their petition plaintiffs submitted the affidavits of witness-investigators detailing acts of defendant which violated the injunction. The petition and attached affidavits indicated that he violated the injunction on at least 30 occasions. Plaintiffs paid these investigators for their work. In addition, during the course of the investigation money was paid to defendant for dentures manufactured by him.
Following a number of continuances, all requested by defendant or caused by his absence, a hearing on the rule to show cause was set for December 5, 1972. The record indicates that defendant, though present in the courthouse, did not appear when court was convened. The court, noting the many continuances that had already been granted and not wishing 'to subject (plaintiff's) witnesses to another delay,' ordered the hearing to proceed. Testimony was adduced that defendant, while operating the 'A--Accurate Dental Laboratory,' engaged in acts constituting a violation of the injunction. Defense counsel was given full opportunity to cross-examine these witnesses. At the conclusion of the testimony the court directed defense counsel to produce defendant in the courtroom when the proceedings were to reconvene that afternoon. Although defendant was again seen in the courthouse, defense counsel was unable to secure his presence. Counsel requested leave of the court to withdraw, which was granted.
An attachment for contempt was issued against defendant reciting all that had transpired; he was arrested and on February 13, 1973, having retained a new attorney, he appeared before the court. He testified that he was no longer in the dental laboratory business, had no intention of returning to that line of work and would never again use his dental laboratory equipment. The court stated that although 'there is no doubt he (defendant) deserves to go to jail * * * I'd be depriving him of the means of making a living while he is incarcerated.' The court stated that it was considering the entry of a consent decree incorporating the representations made by defendant concerning his intentions never again to work as a dental technician and requested plaintiffs to draft a decree to that effect. In addition, on motion of plaintiffs, a judgment in the amount of $1785 in costs was entered against defendant. In explaining the terms of the decree the court stated, Defendant replied, 'Thank you very much.'
Defendant appeals to this court contending that the decree entered below conditionally restraining him from working as a dental technician is an overbroad injunction. * Plaintiffs respond that rather than an injunction, a consent decree was entered below and, consequently, it is not subject to appellate review. See James v. James, 14 Ill.2d 295, 152 N.E.2d 582; Massell v. Daley, 404 Ill. 479, 89 N.E.2d 361; Bergman v. Rhodes, 334 Ill. 137, 165 N.E. 598.
A consent decree is not a judicial determination of the rights of the parties; it is, instead, a recital of an agreement between them. (Massell.) While as a general rule such a decree should indicate on its face that it was entered into by consent, a showing of his nature is not necessary since agreement to the decree 'may be shown by other evidence which does not contradict the record but is consistent with it.' Rhodes 334 Ill. at 142, 165 N.E. at 601.
In the case at bar defendant at several points in the proceedings volunteered that he was no longer in the dental laboratory business and had no intention of returning to that line of work. He further stated that he had no further use for his laboratory equipment. The court, though noting that defendant 'deserved' to go to jail, took cognizance of these representations and discussed the drafting of a consent decree into which they would be incorporated. We believe that the absence of any defense objection to the use of the term 'consent decree' indicates agreement with the disposition of the case in this manner. Moreover, at the close of the proceedings on February 13, the court carefully explained to defendant that he would not be able to take employment...
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