Fields v. Lake Hillcrest Corp.
Case Date: 11/19/2002
Court: 5th District Appellate
Docket No: 5-02-0133 Rel
JUSTICE KUEHN delivered the opinion of the court: Lake Hillcrest Corp. appeals from the trial court's May 7, 2001, order denying itsmotion to vacate all orders of the trial court entered after February 10, 1999. On that date,the trial judge allowed attorney Thomas Burkart's motion to withdraw as counsel for LakeHillcrest Corp. (Lake Hillcrest). Pursuant to directions contained within that order, LowellHampton, president of Lake Hillcrest, entered his appearance on behalf of the corporation. Lowell Hampton is not an attorney. Lake Hillcrest contends that the trial court should havefound that any order or judgment entered after the withdrawal of its attorney is void, becausea corporation can only be represented by an attorney-not by a layperson. On August 17,1999, the trial court granted a request for injunctive relief filed by Arthur P. Fields andGloria Fields. Lake Hillcrest argues that the Fields' injunction is invalid. The Fields fileda motion in this court seeking to dismiss the appeal on the bases that it is untimely andfrivolous. The Fields also ask us to impose sanctions pursuant to Supreme Court Rule 375(155 Ill. 2d R. 375). We will not delve into great specificity about who owned what land at what time. The underlying facts of this case involve a private neighborhood beach within the LakeHillcrest subdivision in Glen Carbon. The lake was owned by Lake Hillcrest. LakeHillcrest is a not-for-profit homeowners association. The beach was apparently created ona dam on the north end of the lake area in 1964. In 1992, the Fields purchased land northof the lake with the intent of developing an upscale single-family home subdivision. In1996, the Village of Glen Carbon, Illinois, passed a zoning ordinance relative to parks beingused on a recreational basis in an area specifically zoned for single-family residences. Priorto the filing of this complaint, the Fields had complained that the use of the specific land asa beach was not permissible pursuant to the ordinance. While we would like to be able toinclude the exact language of the ordinance, the ordinance was not included in the record. In any event, the Fields brought their dispute to the Board of Zoning Appeals for the Villageof Glen Carbon (the Board). On September 3, 1998, the Board rendered its decision thatbecause the beach area had been in use since 1964, its usage amounted to a "continuous andexisting non[]conforming use." The Board found that the zoning ordinance was thereforeinapplicable. On October 1, 1998, the Fields filed suit against the Board, its chairman, and LakeHillcrest. The Fields sought the review of that zoning decision. Attorney Thomas Burkartentered his appearance and filed a motion to dismiss on behalf of Lake Hillcrest. AttorneyGary Peel entered his appearance and filed a motion to dismiss on behalf of the Board andits chairman. On December 11, 1998, the trial court partially granted these motions todismiss, granting leave to the Fields to file an amended complaint. On January 6, 1999, theFields filed their amended complaint. Apparently due to a dispute between attorney Thomas Burkart and his client, he fileda motion to withdraw as counsel for Lake Hillcrest. This motion was granted on February10, 1999. The order entered by the court was the proposed order enclosed by attorneyThomas Burkart with his motion to withdraw. The relevant language drafted by attorneyThomas Burkart reads as follows: "Unless another attorney enters his or her appearance as attorney of record forthe defendant, LAKE HILLCREST CORPORATION, they are hereby ordered to filewith the Clerk of the Court - within twenty-one (21) days of this Order, asupplementary appearance stating therein an address at which service of notices orother papers may be had upon them." On that same date, nonattorney Lowell Hampton entered his appearance on behalf of LakeHillcrest and filed his general answer denying the allegations of the Fields' amendedcomplaint. On March 31, 1999, the Fields filed a second amended complaint, with which allparties were served. The complaint against Lake Hillcrest was served upon LowellHampton. On May 14, 1999, attorney David Harris, on behalf of Lake Hillcrest and severalnewly named defendants who reside in Lake Hillcrest, filed a motion to dismiss this secondamended complaint. Attorney David Harris failed to file his entry of appearance or pay therequisite fee for filing an entry of appearance in Madison County circuit court. While in duecourse this motion to dismiss was set for a hearing, the notice of hearing was not sent toattorney David Harris, but to Lowell Hampton. The employees in the Madison Countycircuit clerk's office are instructed to change the names of attorneys and/or addresses,relevant to a party's representation, upon receipt of an entry of appearance. That documenttriggers the name/address change. A motion to dismiss without an entry of appearanceannouncing a change in representation would not necessarily result in a name/addresschange in the official records for that case. On June 4, 1999, attorney Stephen M. Tillery filed his entry of appearance on behalfof the Fields. Because there had been no previously filed motion to withdraw as counsel forthe Fields, we assume that Stephen M. Tillery was being added as counsel for the Fields, inaddition to the attorney who had represented the Fields from the inception of this suit,Robert Bruegge. At some point in early June 1999, Judge Ann Callis conducted a case managementconference. Attorney David Harris did not receive notice of this conference. Presumably,Lowell Hampton did receive such notice. No one appeared at the conference on behalf ofLake Hillcrest. No one contacted attorney David Harris to find out why he did not attendthe conference. On June 7, 1999, Judge Callis entered an order setting "oral argument" forAugust 17, 1999. The minute entry for June 7, 1999, reflects that "copies [were] sent" to theparties and counsel of record. Because the list of attorneys did not include David Harris, hiscopy of this notice of hearing was sent to Lowell Hampton. Lake Hillcrest's motion to dismiss was set for a hearing on July 2, 1999. AttorneyDavid Harris was not notified of the hearing. Additionally, it appears that neither attorneyDavid Harris nor Lowell Hampton appeared on behalf of Lake Hillcrest. After hearingarguments on the motion, the trial judge denied the motion. On August 2, 1999, attorney Stephen M. Tillery filed a lengthy memorandum withexhibits in support of the Fields' position in this suit. This memorandum set forth the basesfor the Fields' argument that the trial court should reverse the Board's decision. The coverletter indicates that a copy of the memorandum had been sent on that same date to opposingcounsel. However, the letter only referenced that copies had been sent to attorney Gary Peel,as the attorney for the Board and its chairman, and to attorney Robert Bruegge, as cocounselfor the Fields. The certificate of service attached to the memorandum also indicates thatonly those two attorneys were served with copies. Apparently, Lake Hillcrest was not servedwith the memorandum, because it was not sent to attorney David Harris or to LowellHampton. On August 17, 1999, the trial court held its hearing on the merits of the Fieldscase. The Fields and their attorneys appeared. Attorney Gary Peel appeared on behalf ofthe Board and its chairman. Attorney David Harris did not appear. Lowell Hampton did notappear. Therefore, Lake Hillcrest was unrepresented at this hearing. No briefs ormemoranda of law were filed on behalf of the Board and its chairman or on behalf of LakeHillcrest. After hearing evidence and after a consideration of the record, Judge Callisentered an order reversing the September 1998 order of the Board. The Fields' request foran injunction, forbidding further use of the area as a swimming, bathing, or beach area, wasgranted. In this order, she specifically found that the relevant zoning ordinance permits"parks" as a recreational use in an "RS-10, Single-Family Residential District." Sheconcluded that the usual and ordinary interpretation of the word "parks" did not encompassbeaches. Therefore, she found that Lake Hillcrest had been illegally operating a beach sinceJanuary 1, 1974, the date on which a relevant Illinois statute in the Swimming Pool andBathing Beach Act (210 ILCS 125/4 (West 1998)) became law. She further found that thebeach was not a "lawful non[]conforming use" as contemplated by the zoning ordinances. This order was final and appealable. On September 15, 1999, David Harris filed a motion to set aside the August 17, 1999,judgment. He finally filed his entry of appearance on October 6, 1999, and in response tothat filing, the clerk's office prepared and sent out an amended notice of hearing on themotion he had filed. In his motion, attorney David Harris argued that he did not receivenotification of the August 17, 1999, hearing, that his arguments were not heard at thathearing, and that Judge Callis entered a pro forma order prepared by the Fields' attorneys. On October 15, 1999, his motion was called, argued, and denied. The written order does notdetail Judge Callis's rationale for denying the motion. Attorney David Harris filed a notice of appeal, in which he indicated that he wasappealing from the trial court's August 17, 1999, and October 15, 1999, orders. Wedocketed the appeal as number 5-99-0758. After the record was filed with this court, ourclerk set the briefing schedule. A brief on behalf of Lake Hillcrest was due to be filed onor before February 18, 2000. Attorney David Harris did not file this brief. No one else fileda brief or requested an extension of time on behalf of Lake Hillcrest. On March 1, 2000, thiscourt entered a show-cause order. No response was filed to this show-cause order, and onMarch 16, 2000, we dismissed the appeal for want of prosecution. In late March 2000,attorney David Harris filed a motion to reopen this appeal and to stay the matter pending adetermination of which attorney should represent Lake Hillcrest and pending the outcomeof a separate case among the parties filed in the chancery division of the Madison Countycircuit court. On April 12, 2000, we denied this motion. This case was dormant until March 16, 2001, when attorney Thomas Burkartreentered the picture. On that date he filed a motion to vacate all orders and judgmentsentered since February 10, 1999, the date on which he had previously been granted leave towithdraw as counsel of record for Lake Hillcrest. In this motion, he states that the February10, 1999, order provided Lake Hillcrest with 21 days to obtain replacement counsel. Thisstatement is factually misleading. Attorney Thomas Burkart prepared this order. The orderrequired Lake Hillcrest to either find an attorney and have that attorney enter his or herappearance within 21 days or provide the clerk's office with the name and address of theindividual to whom the clerk's office should send future notification. Pursuant to the order,clearly the judge contemplated the possibility that a nonattorney would enter his or herappearance as the representative for Lake Hillcrest. However, it is this very occurrence towhich Lake Hillcrest and attorney Thomas Burkart take issue. He argues that a nonattorneycan never represent a corporation and that if a nonattorney does so, any and all orders andjudgments entered thereafter are void. Attorneys for the Fields filed a response to this motion and also sought sanctionspursuant to Supreme Court Rule 137 (155 Ill. 2d R. 137). The Fields argued that attorneyThomas Burkart misconstrues the law. Specifically, they argued that orders and judgmentsshould only be voided following nonlegal representation of a corporate party when thenonlawyer initiates the legal proceedings. Furthermore, the Fields argued that Lake Hillcrestwas represented by counsel at the time of the August 17, 1999, hearing on the merits-butits attorney had simply failed to file an entry of appearance and so, while Lake Hillcrest wasrepresented, its attorney received no notification of and was not present at the hearing. Finally, the Fields contended that this argument had previously been raised in the circuit andappellate courts. The Fields concluded by stating that if Lake Hillcrest's request to void allorders subsequent to the withdrawal of its attorney was allowed, the judicial system wouldbe seriously undermined. The hearing on these motions was held before Judge Lewis E. Mallott on May 4,2001. In a fairly lengthy order, Judge Mallott denied Lake Hillcrest's motion on May 7,2001. First, Judge Mallott noted that the issues raised in this motion to vacate had beenraised before Judge Callis and denied and could have been properly raised in the appellatecourt but that the appeal was dismissed for want of prosecution. Addressing the core issue,Judge Mallott rejected the argument that a corporation can be given blanket protection fromorders entered after the corporation's attorney is granted leave to withdraw. He noted thatthe president of Lake Hillcrest was given the proper notice and had a duty to hire counselto represent the corporation. Lake Hillcrest filed its notice of appeal from this order on May16, 2001. Subsequently, on May 29, 2001, attorney Thomas Burkart filed a motion seeking towithdraw his notice of appeal on the grounds that it was premature because the trial courthad not yet ruled upon the Fields' request for sanctions. He filed this motion in the MadisonCounty circuit court, but not in this court. This court had already docketed the appeal underthe number 5-01-0359. On June 29, 2001, Judge Lewis E. Mallott held a hearing on this request forsanctions. Initially, Judge Mallott noted that the motion filed by attorney Thomas Burkartwas in "good faith." He stated that he did not believe that attorney fees were warranted. However, he was greatly disturbed by Lake Hillcrest's intent to appeal. Judge Mallott statedthat initially he would have denied the Fields' request for sanctions but that he was inclinedto grant the request because Lake Hillcrest had filed its notice of appeal. The award, if any,would be assessed directly against attorney Thomas Burkart. He did not grant the motionat that hearing, indicating that he would assess attorney fees as a sanction if the case wentto this court on appeal and this court affirmed his May 7, 2001, judgment. Judge Mallottclarified that if and when he ordered the payment of attorney fees, those fees would includeany incurred by the Fields in defending the appeal. If Lake Hillcrest filed an appeal, JudgeMallott would revisit the Fields' request for sanctions. On July 23, 2001, Lake Hillcrest filed its notice of appeal from the trial court's May7, 2001, and June 29, 2001, orders. We docketed this appeal under the number 5-01-0613. Because appeal number 5-01-0359 was not being prosecuted (the appeal that attorneyThomas Burkart believed to be premature), we dismissed that appeal for want of prosecutionon August 13, 2001. In number 5-01-0613, the Fields filed a motion to dismiss the appeal and for SupremeCourt Rule 375(b) (155 Ill. 2d R. 375(b)) sanctions. The Fields argued that the appeal wasfrivolous and untimely. Using the October 15, 1999, date of the order denying LakeHillcrest's motion to vacate, the Fields argued that any appeal of that order should be barredby this court's previous order dismissing for want of prosecution the appeal from that order.We concluded that we lacked jurisdiction, but for a different reason. The order for attorneyfees was not really a final order for attorney fees but was, as we stated, "conditional at best." Fields v. Board of Zoning Appeals, No. 5-01-0613, unpublished order at 6 (November 2,2001). As such, the June 29, 2001, order was not subject to enforcement. We dismissed theappeal and denied the Fields' request for sanctions. On remand to the Madison County circuit court, Judge Lewis E. Mallott held ahearing on the attorney fees issue on January 25, 2002. At this hearing, after hearing thetestimony of the Fields' attorney, Christine Moody, Judge Mallott sanctioned attorneyThomas Burkart $3,750. On February 19, 2002, Lake Hillcrest filed its notice of appeal from the trial court'sMay 7, 2001, June 29, 2001, and January 25, 2002, orders. We docketed this appeal withnumber 5-02-0133. The Fields argue that we should not address the merits of this appeal because it isuntimely. This is the same argument they made in the last appeal, which we dismissed forlack of jurisdiction because the trial court's attorney fees order was not final and appealable. We choose to address the merits of the appeal. The arguments raised by Lake Hillcrest, ifaccepted, are ones that can be raised at any time. Given this case's tortuous history, themerits need to be addressed at the appellate court level. Whether Lake Hillcrest's representation by a nonlawyer should serve to void anyorders entered during its period of nonlegal representation raises a question of law. Therefore, our review is de novo. Donaldson v. Central Illinois Public Service Co., 199 Ill.2d 63, 100, 767 N.E.2d 314, 336 (2002). There are various reasons why we cannot go along with the theory of corporaterepresentation advanced by Lake Hillcrest. Most importantly though, the theory, if correct,would invite abuse. At any time when a case was not going well, a corporation could fireits attorney and then do nothing. By not hiring another attorney to represent it, thecorporation could essentially bring the judicial process to a complete stop. The authority Lake Hillcrest cites in support of its position is inapposite. If LakeHillcrest had initiated a legal proceeding without the benefit of representation by counsel,then any and all proceedings would be void ab initio. See Berg v. Mid-America Industrial,Inc., 293 Ill. App. 3d 731, 737, 688 N.E.2d 699, 704 (1997). This rule is based upon thepremise that corporations are prohibited from practicing law. Section 1 of the CorporationPractice of Law Prohibition Act (705 ILCS 220/1 (West 1996)) states, "It shall be unlawfulfor a corporation to practice law or appear as an attorney at law for any reason in any courtin this state ***." Cases interpreting this prohibition have concluded that proceedings arevoid where instituted by a layperson. Marken Real Estate & Management Corp. v. Adams,56 Ill. App. 3d 426, 429, 371 N.E.2d 1192, 1194 (1977); Housing Authority v. Tonsul, 115Ill. App. 3d 739, 740, 450 N.E.2d 1248, 1249 (1983). Lake Hillcrest was represented by counsel after it was served with process, untilFebruary 10, 1999. Thereafter, it was unrepresented by counsel until approximately May14, 1999, at which time attorney David Harris filed a motion to dismiss the Fields' secondamended complaint. Even though it had a properly licensed attorney representing it in thismatter, Lake Hillcrest now argues that anything this attorney filed was a nullity becauseDavid Harris neglected to file his formal entry of appearance. Because the Madison Countycircuit clerk's office failed to recognize David Harris by sending him notification of pendinghearings, Lake Hillcrest argues that it was essentially unrepresented. The reality is that LakeHillcrest did have an attorney. Any complaint that Lake Hillcrest has about its attorney notreceiving notice is a matter that Lake Hillcrest should address to the attorney it hired andwho failed to follow standard protocol in entering his appearance. Even though he did notreceive notification from the clerk's office, there was absolutely no impediment to hisascertaining relevant hearing dates by perusing the court file-a public record. Furthermore,with a timely placed telephone call to the clerk's office, he would have gleaned knowledgeof the relevant dates. Lake Hillcrest's complaints are misdirected. Additionally, these notification arguments were raised and argued before the trialcourt by Lake Hillcrest's attorney at a point in time when he had entered his appearance. Lake Hillcrest had its appellate opportunity to further argue these issues in its previousappeal-one that was dismissed because of a failure on the part of the corporation, by itsattorney, to prosecute the matter. We find no error in the trial court's May 7, 2001, order. Lake Hillcrest also appeals from the trial court's June 29, 2001, and January 25, 2002,orders regarding the imposition of sanctions. We reverse the order for sanctions. In theJune 29, 2001, hearing, Judge Lewis E. Mallott made findings that the arguments made byattorney Thomas Burkart were made in good faith and raised valid legal issues. However,Judge Mallott expressed his opinion that attorney Burkart's position was "dead wrong." Judge Mallott then threatened that if an appeal was filed on behalf of Lake Hillcrest, hewould order attorney Thomas Burkart to pay sanctions in the form of attorney fees. EitherThomas Burkart's arguments were in good faith or they were not. If his arguments in thetrial court were valid, then why should he be precluded from seeking an appellate opinionon the matter? Regardless of the form of the sanctions entered by Judge Mallott on January25, 2002, we find that the order was inappropriate. Turning to the question of sanctions on this appeal, the imposition of sanctionspursuant to Supreme Court Rule 375(b) (155 Ill. 2d R. 375(b)) is left strictly to ourdiscretion. Sanctions of that type can be imposed if an appeal is deemed frivolous or "nottaken in good faith." 155 Ill. 2d R. 375(b). Supreme Court Rule 375(b) states that an appealis frivolous if it is "not reasonably well grounded in fact and not warranted by existing lawor a good-faith argument for the extension, modification, or reversal of existing law." 155Ill. 2d R. 375(b); Gunthorp v. Golan, 184 Ill. 2d 432, 441, 704 N.E.2d 370, 374 (1998). We conclude that sanctions would be inappropriate in this case because the appealis not necessarily frivolous in nature as required by the rule. See 155 Ill. 2d R. 375(b). Thelanguage of section 1 of the Corporation Practice of Law Prohibition Act (705 ILCS 220/1(West 1996)) seemingly prohibits a corporation's representation by a nonlawyer for anypurpose. While the cases citing this statute do not track this all-inclusive language, thelanguage provides enough support for Lake Hillcrest's appeal, such that we simply cannotconclude that the appeal was frivolous. For the foregoing reasons, the judgment of the circuit court of Madison County ishereby affirmed in part and reversed in part. The motion to dismiss and for sanctions filedby Arthur P. Fields and Gloria Fields is hereby denied. Affirmed in part and reversed in part; motion denied. HOPKINS and GOLDENHERSH, JJ., concur. |