Levin Ginsburg
In Board of Managers of Northbrook Country Condo. Ass'nv. Spiezer, the Board of the Northbrook Country Condominium
Association filed a forcible entry and detainer action against June Spiezer, as
trustee of the June Spiezer Revocable Trust, seeking possession and common
expenses owed on her condominium unit. 2018 IL App (1st) 170868, ¶¶ 1, 6. After
the trial court entered a default judgment and order of possession in the
Board’s favor, her son, Joseph Spiezer, successfully moved to vacate the
default judgment and order of possession. Id.
at ¶ 6. Joseph then moved to quash
service, which the trial court denied, finding that Joseph submitted to the
court’s jurisdiction by filing the motion to vacate. Id. at ¶¶ 1, 6. After Joseph, as trustee of the June Spiezer Trust,
quitclaimed the condominium unit to himself, the trial court entered another
order of possession in favor of the Board, which Joseph timely appealed. Id. ¶¶ 2, 7. That appeal was later dismissed
for want of prosecution. Id., citing Board
of Managers of Northbrook Country Condominium Ass'n v. Spiezer, No.
1–13–0573 (Aug. 28, 2013) (unpublished summary order under Illinois Supreme
Court Rule 23(c)).
Nearly three years later, Joseph filed a section 2-1401 petition
to vacate the second order of possession on the grounds that the order was void
because his mother was deceased when the complaint was filed, and her
beneficiaries were not named as parties to the suit. Id. ¶ 8. After voluntarily withdrawing the section 2–1401 petition,
Joseph filed a “motion to intervene” in the forcible entry and detainer case,
effectively re-arguing his section 2-1401 petition and asserting that he should
be allowed to intervene to present a motion for an accounting and obtain judgment
in his favor for rental income the Board received on the property after entry
of the order of possession. Id.
Following several agreed continuances and a substitution of attorneys for
Joseph, Joseph filed another motion seeking an accounting and asking the trial
court to vacate the judgment for possession. Id. at ¶ 9. The trial
court dismissed Joseph's motions for lack of jurisdiction. Id.
Joseph appealed from the order dismissing his motions and from the
order denying his motion to reconsider, arguing: (i) the trial court had
jurisdiction to rule on his motions, and (ii) the order of possession was void
and the complaint should be dismissed. Id.
at ¶¶ 3, 9.
The Appellate Court found that neither Supreme Court Rule 303 nor
the doctrine of revestment conferred jurisdiction over Joseph’s appeal. Id. at ¶ 11. “Having let his appeal on
these issues lapse,” the Appellate Court stated, “Joseph cannot exhume his case
by motion, and we must dismiss.” Id. at
¶ 3. The Court reasoned:
"Joseph argues that the trial court had jurisdiction to
address the merits of his motion to vacate the January 16, 2013, order of
possession because 'a void order may be attacked at any time or in any court,
either directly or collaterally.' Joseph asserts the order of possession was
void because the Board failed to properly serve the trust, trustees, or
beneficiaries. But in 2012, the trial court denied Joseph's motion to quash
service, finding that he submitted to the court's jurisdiction by filing the motion
to vacate its first order of possession. The trial court entered a second order
of possession, and Joseph timely appealed. This court then dismissed the appeal
for want of prosecution. Spiezer, No. 1–13–0573." Id. at ¶ 13.
Notwithstanding Joseph’s timely appeal from the order
of possession, the Appellate Court characterized Joseph’s attempt to file
motions to vacate three years later as “an end-run around his long abandoned
appeal.” Id. at ¶ 14. Citing case law
holding that where an appeal is dismissed, a party may not file a section
2-1401 petition in the trial court to circumvent the requirements of Rule 303,
the Appellate Court found that Joseph’s motion to vacate the order of
possession filed in the trial court “does not create a right to appeal under
Rule 303 nor … provide us with any other rule that permits him to relitigate
issues already decided in 2013 and already timely appealed, albeit dismissed
for want of prosecution.” Id.
The Appellate Court’s analysis concluded with a brief
review of the revestment doctrine, which applies only in certain “limited
circumstances” not applicable here, i.e.,
where both parties “(1) actively participate in the proceedings, (2) fail to
object to the untimeliness of the late filing, and (3) assert positions that
make the proceedings inconsistent with the merits of the prior judgment and
support the setting aside of at least part of that judgment.” Id. at ¶ 15, citing People v. Bailey,
2014 IL 115459, ¶ 25.
As an aside to the jurisdiction issues, the Appellate
Court pointed out that Joseph's attorney’s brief “disparage[d] opposing counsel
and ma[de] a number of statements that call into question the trial and
appellate court's integrity.” 2018 IL App (1st) 170868, at ¶ 4. Specifically, throughout
his opening and reply briefs, Joseph’s attorney called her opposing counsel’s
arguments “incoherent,” “bizarre,” “nauseating,” “nonsensical,” and a “word
salad.” The Appellate Court stated: “His remarks serve no purpose other than to
demean or insult the other side. We expect all attorneys to behave with respect
and civility in their written as well as oral interactions with opposing
counsel and with the court.” Id. at ¶
18. Because of the “acerbity of his statements,” including what the Appellate
Court deemed “poisonous darts [aimed] at this court,” which went so far as to
accuse the courts of ignorance and corruption, and his past behavior before the
appellate court, Joseph was ordered to show cause why Rule 375 sanctions should
not be imposed for his statements which “flout the norms of proper discourse
before the appellate court.” Id. at
¶¶ 19-22.
In a Supplemental Opinion issued in the wake of the
show cause order, the Appellate Court noted that Joseph’s lawyer failed to
respond. Finding that he waived his right to respond, the Court sanctioned him
by requiring him to (i) pay a fine to the Clerk of the First Appellate District
and (ii) attend a minimum of six hours of civility and professionalism courses,
and repeating the words of U.S. Supreme Court Chief Justice Warren Burger, stated:
“[L]awyers who know how to think but have not learned how to behave are a
menace and a liability, not an asset, to the administration of justice.” 2018
IL App (1st) 170868, at ¶¶ 26-27, citing Warren E. Burger, The Necessity For
Civility, 52 F.R.D. 211, 215 (1971). The Appellate Court continued: “We are
not dealing with a self-represented litigant here, but a licensed and
experienced attorney who should know what constitutes the limits of proper
argument. The statements addressed in the show cause order are not argument,
but accusations and wild and unsubstantiated accusations at that. To let them
pass without admonishment would be perceived as condoning [those] accusations,
and serve to undermine the judiciary's legitimacy, authority, and
persuasiveness in the minds of the public and his client” 2018 IL App (1st)
170868, at ¶ 26. The Court ordered that the clerk send a copy of the opinion to
the Attorney Registration and Disciplinary Commission. Id. at ¶ 28.
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