Stewart v. Lathan

• Decision Date: 28 May 2010
• Docket Number: No. 1-09-2384.,1-09-2384.
• Citation: 401 Ill.App.3d 623,341 Ill.Dec. 159,929 N.E.2d 1238
• Parties: Karon STEWART, Plaintiff and Counterdefendant-Appellant (Laura A. Holwell, Appellant,)v.David LATHAN, Defendant and Counterplaintiff-Appellee.
• Court: United States Appellate Court of Illinois

401 Ill.App.3d 623

929 N.E.2d 1238

341 Ill.Dec. 159

Karon STEWART, Plaintiff and Counterdefendant-Appellant (Laura A. Holwell, Appellant,)v.David LATHAN, Defendant and Counterplaintiff-Appellee.

No. 1-09-2384.

Appellate Court of Illinois First District, Fifth Division.

May 28, 2010.

COPYRIGHT MATERIAL OMITTED

Laura Holwell, Law Offices of Laura A. Holwell, Chicago, IL, for Plaintiff/Appellant.

Presiding Justice TOOMIN delivered the opinion of the court:

Judges who conduct ex parte proceedings without valid notice to the parties act at their peril. Here, we determine that judgment entered on a counterclaim together with sanctions imposed against absent counsel was fatally flawed as lacking the essential requisites of due process.

Plaintiff, Karon Stewart, filed suit against David Lathan for property damage stemming from an automobile accident. Following trial, which was concluded favorably for defendant, plaintiff and counsel learned of a counterclaim filed by Lathan pro se. In the wake of that discovery, several orders were entered concerning scheduling and eventual hearing of the counterclaim. Ultimately, judgment was granted to Lathan on the counterclaim and imposing sanctions on Stewart's attorney, Laura A. Holwell. Stewart now appeals, contending the trial court erred in conducting a hearing on the counterclaim in the absence of notice to herself or counsel ¹. As Lathan has failed to file a responsive brief, pursuant to Supreme Court Rule 343(a) ( 210 Ill.2d R. 343(a)), we resolve the matter solely upon the arguments presented by Stewart. See People ex rel. Director of Corrections v. Booth, 215 Ill.2d 416, 422, 294 Ill.Dec. 157, 830 N.E.2d 569, 572 (2005). For the following reasons, we vacate the judgment and remand for further proceedings.

BACKGROUND

The proceedings below emanate from a subrogation suit filed in the name of Karon Stewart against David Lathan based upon an automobile accident. In response, Lathan filed his pro se appearance, along with a counterclaim, alleging in toto: “Ms. Stewart was blatantly speeding way over the limit and hit my car on the left rear end.” The record does not reflect that the counterclaim was ever served upon Stewart or that notice of its filing was entered of record. Thereafter, counsel appeared on Lathan's behalf solely on the underlying matter, absent any knowledge of the counterclaim.

Following a bench trial on August 3, 2009 ², judgment was entered in favor of Lathan. It was then for the first time brought to the attention of the court and counsel that Lathan had filed a counterclaim. However, at that point, plaintiff was no longer present. Plaintiff's original trial counsel explained to the court that he never received the counterclaim. Lathan's counsel also noted that he too was unaware of its existence.

The court set the counterclaim for hearing and prove-up on August 10, 2009. Stewart describes this as taking place “[o]ver objection.” Judge Veal's August 11 order stated:

“After unprofessional conduct and demands for a re-trial before another judge from the plaintiff's attorney, the court indicated there would be a trial /hearing on the damages set for Monday, August 10, 2009 * * *. The court denied the plaintiff's attorney's request for a new trial before another judge. The hearing was set over the objections of the plaintiff's attorney.”

On August 7, 2009, Stewart's new counsel, Holwell, appeared on an emergency motion to continue the hearing set for August 10, 2009, to adequately prepare for resolution of the counterclaim. Notice of the emergency motion was sent to Stewart's original counsel, as well as Lathan's trial attorney. The motion was heard before Judge Moltz, sitting in Judge Veal's stead, who, as noted, was presiding over the matter. Stewart's motion was granted and the cause was continued to August 28, 2009, for status.

Lathan, apparently unaware of the emergency motion, appeared in court on the originally scheduled court date of August 10, 2009. In response, “Judge Veal conference [ sic ] with Judge Moltz.” While the substance of that discussion is not of record, apparently Judge Moltz was prompted to call Stewart's attorney, Holwell, leaving a message for her to contact him. Thereafter, according to Judge Veal's order, “Judge Moltz notified Judge Veal that Atty. Holwell would appear in court on August 11, 2009 at 11:00 p.m. [ sic ] and that there was a possibility that the August 07, 2009 order would be vacated.” The order further stated that Holwell “relied on someone else to notify the defendant” that the court date was changed, but did not personally mail the order to him.

We recognize that Stewart's version of events of August 10, 2009, differs from the recitals of Judge Veal's order. According to Stewart's brief, Holwell received a call from Judge Moltz seeking a return call. Thereafter, another attorney from Holwell's office, Laura DiAndrea-Iversen, returned Judge Moltz's call and left him a voicemail message. In substance, Judge Moltz was informed that Holwell had conferred with the other attorneys of record. They collectively agreed it was “highly improper that only Ms. Holwell was contacted requesting her appearance on August 11, 2009.” The message further indicated no counsel of record would appear until the previously ordered court date of August 28, 2009.

On August 11, 2009, Lathan again appeared in court. According to the August 11 order, Judge Veal's clerk attempted to reach Holwell. No mention is made of any efforts to reach Lathan's attorney or whether he actually appeared. Eventually, a message was left at Holwell's office ordering her appearance by noon, or she “may” face sanctions. According to Judge Veal, “The court clerk called several more times and was provided conflicting information regarding Atty. Holwell's whereabouts.” When Holwell failed to appear as of 1 p.m., the trial judge swore Lathan and heard his testimony. Judge Veal found Stewart liable for the damages to Lathan's vehicle and entered judgment in his favor in the amount of $2,176.22, plus court costs. Additionally, the court entered the following as to Holwell:

“Atty. Holwell is sanctioned $300.00 for her failure to comply with court orders to appear in court. Defendant, David Lathan, appeared in court on two occasions where Atty. Holwell neglected to appear in court or notify him.”

Holwell was ordered to pay Lathan within 14 days of the entry of the order. Also, at some point on August 11, 2009, Judge Moltz entered an order vacating his August 7, 2009 order.

Stewart now appeals.

ANALYSIS

Fundamental principles of due process require that parties receive procedural due process in the form of notice and an opportunity to be heard. Gredell v. Wyeth Laboratories, Inc., 346 Ill.App.3d 51, 62, 281 Ill.Dec. 137, 803 N.E.2d 541, 550 (2004). Parties to actions in the circuit court are entitled to notice, either personally or upon their counsel of record, of pending motions or hearings. Gredell, 346 Ill.App.3d at 62, 281 Ill.Dec. 137, 803 N.E.2d at 550; 145 Ill.2d R. 11(a). Likewise, rule 2.1 of the circuit court of Cook County requires written notice to all parties who have appeared regarding motion hearings. Cook Co. Cir. Ct. R. 2.1(a). As the determination of whether a party received proper or adequate notice is a question of law, our review is de novo. Hwang v. Department of Public Aid, 333 Ill.App.3d 698, 703, 267 Ill.Dec. 429, 776 N.E.2d 801, 806 (2002).

Supreme Court Rule 11 does not mention or authorize telephonic notice to parties. See 145 Ill.2d R. 11(b). However, the rule does permit notice by facsimile where the parties so agree. 145 Ill.2d R. 11(b)(4). At least one court has extended the rule to permit telephonic notice provided the parties are in agreement. Lewis v. Collinsville Unit No. 10 School District, 311 Ill.App.3d 1021, 1028, 244 Ill.Dec. 328, 725 N.E.2d 801, 806 (2000) (“Unless all parties agree, verbal telephonic notification simply does not suffice”). In the present case, it appears telephonic notice-albeit undertaken by Judge Moltz-was made or attempted to be made on Holwell as to the August 11, 2009, hearing. No notice of any kind appears to have been made upon Lathan's counsel, though Lathan knew of the situation by virtue of his own presence in court on the previous day. The same cannot be said of his counsel. We thus determine that notice was lacking in both form and substance insofar as the August 11, 2009, hearing was concerned.

We turn then to the next component in the analysis, namely, whether the parties were afforded an opportunity to be heard. Gredell, 346 Ill.App.3d at 62, 281 Ill.Dec. 137, 803 N.E.2d at 550. As we perceive the overarching issue on appeal impacts the actions of the judges involved, we are compelled to consider the Code of Judicial Conduct and its canons provided in the supreme court rules. Recognizing that the canons are incorporated in the supreme court rules we are mindful of the supreme court's directive that its rules are not aspirational, have the force of law, and should be adhered to as written. See Bright v. Dicke, 166 Ill.2d 204, 210, 209 Ill.Dec. 735, 652 N.E.2d 275, 277-78 (1995). Supreme Court Rule 63, Canon 3, provides:

“(4) A judge shall accord to every person who has a legal interest in a proceeding, or that person's lawyer, the right to be heard according to law. A judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties concerning a pending or impending proceeding except that:

(a) Where circumstances require ex parte communications for scheduling, administrative purposes or emergencies that do not deal with substantive matters or issues on the merits are authorized; provided:

(i) the judge reasonably believes that no party will gain a procedural or tactical advantage as a result of the ex parte communication, and

(ii) the judge makes provision promptly to notify all other parties of the

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