Sunset Travel, Inc. v. Lovecchio, 81-1960

• Decision Date: 24 March 1983
• Docket Number: No. 81-1960,81-1960
• Citation: 113 Ill.App.3d 669,69 Ill.Dec. 456,447 N.E.2d 891
• Parties: , 69 Ill.Dec. 456 SUNSET TRAVEL, INC., an Illinois corporation, and Underwater Adventure Tours, Ltd., an Illinois corporation, Plaintiffs-Appellees, v. Roberto LOVECCHIO, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

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447 N.E.2d 891 113 Ill.App.3d 669, 69 Ill.Dec. 456 SUNSET TRAVEL, INC., an Illinois corporation, and Underwater
Adventure Tours, Ltd., an Illinois corporation,
Plaintiffs-Appellees,
v.
Roberto LOVECCHIO, Defendant-Appellant. No. 81-1960. Appellate Court of Illinois,
First District, Fourth Division. March 24, 1983.

[113 Ill.App.3d 671]

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[69 Ill.Dec. 458] Dorothea Kaplan, and Edward R. Theobald, Boharic & Theobald, Chicago, for defendant-appellant.

Pitler & Mandell, Chicago (Barry L. Powell, Philip L. Mandell, Barry A. Pitler, Chicago, of counsel), for plaintiffs-appellees.

LINN, Justice:

Defendant, Roberto Lovecchio, was found in contempt of court. He was sentenced to 30 days in jail, but could purge himself and obtain his immediate release by delivering over to Sunset Travel, Inc., one of the plaintiffs, certain airline tickets claimed by Sunset to be its property.

On appeal Lovecchio essentially contends: (1) that he was erroneously found guilty of "direct civil contempt" where, at most, he could be found guilty of "indirect criminal contempt"; (2) that he was erroneously denied his due process rights; and (3) that the 30-day jail sentence sanction was imposed improperly.

We conclude that Lovecchio was guilty of indirect civil contempt; that he was accorded his due process rights; and that the sanction was properly imposed.

[113 ILL.APP.3D 672] BACKGROUND

On June 9, 1981, incident to the service of certain outstanding traffic violation warrants and incident to a theft investigation, Lovecchio was arrested and his automobile was searched. The police found and inventoried certain business records, including 76 airline tickets, one of which was validated. The airline ticket numbers were recorded by the police. Several hours after the arrest, Lovecchio was released. The business records and the airline tickets were returned to him.

On June 9, 1981, plaintiffs, Sunset Travel, Inc. and Underwater Adventure Tours, Ltd., filed a complaint in the circuit court of Cook County seeking injunctive and other relief against Lovecchio and Sandra Shearer. Plaintiffs charged that Lovecchio and Shearer, with whom they had been associated in a travel agency business, wrongfully and without authority removed certain business records, including airline tickets. Plaintiffs sought return of the business records and the airline tickets. Subsequently, Lovecchio and Shearer were served with a notice to produce the records and airline tickets in court.

Pursuant to the motion to produce, the parties appeared in person with counsel before the trial judge on June 19, 1981. At that time an agreed order was entered enjoining Lovecchio and Shearer in certain respects. Further, Lovecchio and Shearer were directed to prepare and submit an inventory of all business records and documents held by them that were listed in the notice to produce previously served upon

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[69 Ill.Dec. 459] them. Further hearing was continued to June 24, 1981.

On June 24, Lovecchio and Shearer appeared with counsel and presented their inventory. The inventory failed to include the documentation of the airline tickets in issue. Thereupon, certain testimony relating to the airline tickets was presented. The police officers who previously had arrested Lovecchio testified to their search and inventory of the business records and airline tickets taken from Lovecchio's automobile. They asserted that all the records including the airline tickets had been returned to Lovecchio upon his release from custody. Lovecchio testified that he last saw the airline tickets in a room in the police station where they had been taken after being removed from his automobile by the police. He had no knowledge as to the tickets after that. He did not know where they currently were. He recalled that the police had questioned him about the tickets. He claimed that the police had returned all the documentary materials that had been taken from his automobile, but he had no recollection of the return to him of the airline tickets.

Following the testimony, an in-chambers conference took place. On returning to the courtroom, the trial judge asserted that he did [113 Ill.App.3d 673] not believe Lovecchio's testimony as it related to the airline tickets. The trial judge stated,

"I do not believe Mr. Lovecchio in the slightest degree at this moment in time, predicated on the evidence that I have heard. It is inconceivable to me that the two police officers would lie, that Mr. Milito would lie, and that his supervisor, Mr. Orsi would lie."

While observing that no contempt finding was being made at that time in connection with Lovecchio's failure to produce the airline tickets, the trial judge suggested that counsel for plaintiffs submit a petition to find Lovecchio in contempt. The trial judge directed that the proceeding be continued and stated, "You may draft an order insofar as Monday morning is concerned, and I will give Mr. Lovecchio an opportunity to explain to this court once again." The foregoing comments and action by the trial court took place without objection.

Thereafter, on July 10, 1981, plaintiffs filed their petition seeking contempt findings and the imposition of sanctions against Lovecchio and Shearer for their failure to produce the airline tickets. On July 24, 1981, Lovecchio and Shearer by counsel filed their response and supporting memorandum to plaintiffs' petition. Lovecchio and Shearer acknowledged the accuracy of the transcript of the June 24, 1981 hearing, and in effect again claimed that they did not have possession or control of the airline tickets and consequently could not produce them. In addition to "impossibility of performance," Lovecchio and Shearer contended that the airline tickets, being unvalidated (except for one), were of little or no value and their production would be of no economic benefit to plaintiffs.

Hearings on all pending matters resumed on August 3, 1981. Arguments of counsel were presented. At the conclusion of the proceeding the trial judge entered an order finding, among other things, that the evidence presented at various hearings established that Lovecchio, while able to comply with the trial court's order to produce, had failed to produce certain airline tickets and consequently was in "direct contempt" of court. ¹ The trial judge found Lovecchio's failure to abide by the trial court's order to be wilfull and contumacious; he found further that Lovecchio had not shown any "just reason" for failure to comply with the production order that the airline tickets be delivered to Sunset Travel, Inc. Lovecchio was sentenced to 30 days' confinement, [113 Ill.App.3d 674] with the right to immediate release upon purging himself of contempt by producing the airline tickets. ²

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[69 Ill.Dec. 460] Following denial of a motion to reconsider and vacate the August 3, 1981 order of contempt and sanction, this appeal was taken. ³

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