Frederick v. Gaca

2021 IL App (3d) 210095-U

• Court: Appellate Court of Illinois
• Decided: December 29, 2021
• Docket: 3-21-0095
• Status: Unpublished

Opinion

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).

2021 IL App (3d) 210095-U

Order filed December 29, 2021 ____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

THOMAS J. FREDERICK, ) Appeal from the Circuit Court ) of the 12th Judicial Circuit, Plaintiff-Appellee, ) Will County, Illinois. ) v. ) Appeal Nos. 3-21-0095 ) 3-21-0104 TERRY L. GACA, and JANET L. WAYMAN, ) Circuit Nos. 19-CH-1237 Individually and as Trustee of the Janet L. ) 20-CC-7 Wayman Trust, ) ) Honorable Theodore J. Jarz, Defendants-Appellants. ) Judge, Presiding. ____________________________________________________________________________

JUSTICE SCHMIDT delivered the judgment of the court. Presiding Justice McDade and Justice Lytton concurred in the judgment.

ORDER

¶1 Held: This court lacks jurisdiction to consider an appeal from the denial of a discovery motion for additional disclosures. The trial court did not err when it denied plaintiff’s motion to lift the stay of the civil proceedings.

¶2 This consolidated interlocutory appeal involves an order staying the proceedings in a civil

action brought by plaintiff, Thomas Frederick, against defendants, Terry L. Gaca, and Janet

Wayman, individually and as trustee of the Janet L. Wayman Trust. Frederick appeals, arguing the

trial court erred in staying the civil proceedings. The civil action resulted in Frederick filing a petition for adjudication of indirect criminal contempt against defendant Gaca. Frederick also

appeals an order denying his motion for additional disclosures in the contempt proceedings. We

dismiss the appeal in part, affirm in part, and remand for further proceedings.

¶3 I. BACKGROUND

¶4 On August 26, 2019, Frederick filed a multicount complaint against defendants, Terry Gaca

and Janet Wayman, individually and as trustee of the Janet L. Wayman Trust. Count I alleged

public nuisance. Count II alleged conspiracy to create a public nuisance. The remaining counts

alleged various violations of the city of Naperville Zoning Ordinance, including operating a

boarding house (counts III, IV); operating a parking and storage facility (counts V, VI), storing

trucks in excess of the allowable weight and at unlawful times (counts VII, VIII); parking a trailer

(count IX); not using required hard surface for the standing, loading, and unloading motor vehicles

(count X); and parking unlicensed vehicles on the property (count XI). All counts concerned

residential property owned by the trust on Lisson Road in Naperville and located next door to

Frederick’s house. The complaint sought preliminary and permanent injunctive relief as well as

attorney fees and costs.

¶5 Frederick sought a preliminary injunction to enjoin the defendants from using the property

for vehicle parking and storage. A hearing took place on the motion for injunctive relief on

November 19, 2019.

¶6 Michael Menichini testified. He was a special process server who unsuccessfully attempted

to serve various documents at the property four times. He observed approximately 20 vehicles

parked on the property, including cars, pickup trucks, delivery trucks, and a heavy-duty work truck.

On two visits, he counted 23 vehicles. The surface on which the vehicles were parked looked like

packed dirt and crushed materials.

-2- ¶7 Janet Wayman testified. She lived on the property at issue with Gaca, her husband, from

1996 to late October 2018. The house had six bedrooms. Six people were currently living in the

house and two others had lived there previously. Each tenant had a vehicle. She acknowledged

there were more than 15 vehicles parked and stored on the property, and there were box trucks

parked there for several months. The property was not used for storage, but people did pay to park

there. She was aware people were paying to park. She did not formally authorize Gaca to use the

property as a parking facility and would not have authorized the use if she had known it was in

violation of the zoning ordinance. The Terry L. Gaca Trust now owned the property, which was

transferred from her trust the week prior to the hearing. The transfer was made to balance the value

of their trusts. She was not involved in her husband’s business.

¶8 Gaca testified. He lived at the Lisson house until December 2018. He had paying tenants

beginning in January 2019. In total, six people lived in the house and two other people had

previously lived there. There was one vehicle per tenant. He accepted payment for parking and

storage of nontenant-owned vehicles on the property beginning in February 2019. There were

approximately 24 to 26 vehicles there in November 2019 and other vehicles had been parked there

but were no longer on the property. The driveway was crushed asphalt and the vehicles were at all

times parked on the asphalt. He denied he placed an ad on Craigslist that counsel downloaded on

November 11, 2019, regarding renting parking space at the property. To his recollection, he did

not authorize an ad on Spacer, also downloaded on November 11, 2019. Gaca explained he placed

ads on Craigslist many times for parking and did not know when he stopped. On cross-

examination, Gaca stated that the property was a shared home with six tenants and an oral lease.

The rent included parking and utilities. He did not believe the use was in violation of any local

ordinances.

-3- ¶9 Frederick testified. He offered his interpretation of the Naperville zoning ordinances and

opined that the defendants violated the ordinances by housing individuals who were not a family

in a single-family dwelling and by operating a parking facility, which was also not a permitted use

under the local ordinances.

¶ 10 The trial court found that parking for hire was not a permitted use for the property and

allowable parking was only by the tenants as accessory to their living in the house. The court

described the zoning violations as “willful” and “crafty.” The trial court rejected an interpretation

that a single-family dwelling meant only a single family could live on the property. The court also

rejected Frederick’s claim that the defendants were running the parking operation as a home

business. It granted Frederick’s motion for a preliminary injunction and ordered the defendants to

remove the vehicles on the property except those belonging to Gaca, Wayman, the trust, or the

tenants.

¶ 11 On January 2, 2020, attorney Sean Sullivan appeared as substitute counsel for defendants.

¶ 12 On January 27, 2020, Sullivan filed an emergency motion to withdraw. The motion cited a

total breakdown in communication between Sullivan and defendants, which rendered it impossible

to file responses in good faith pursuant to the court-ordered deadline.

¶ 13 On January 28, 2020, Sullivan’s colleague appeared at a hearing before Judge Jarz. Counsel

informed the court that:

“[r]ecent interactions with the client culminated in a six-page e-mail from

the client on Sunday making it clear that the client did absolutely insist on

a course of action that the attorney here, the lead attorney here, has a

fundamental disagreement, feels that he cannot pursue on behalf of the

client.

-4- The reason that it’s an emergency is that there are responses to

discovery and outstanding pleadings due on the 31st. And this has fractured

the attorney-client relationship such that we’re really in a bind as to what

can be done for this client, so we needed to come in as quickly as possible

to bring this before your Honor”

The court allowed the motion and provided defendants 21 days to obtain counsel. However, the

court maintained the deadlines established in the case. Defendants had to respond to Frederick’s

motion for partial summary judgment, answer the complaint, and respond to outstanding discovery

by January 31, 2020.

¶ 14 On January 29, 2020, Joseph Nichele, of Broida and Nichele, Ltd., filed an appearance on

behalf of defendants.

¶ 15 Defendants did not file an answer to the complaint, respond to discovery, or respond to

Frederick’s motion for partial summary judgment by the January 31, 2020, deadline.

¶ 16 On February 24, 2020, defendants filed a motion to dismiss the complaint and to dissolve

the preliminary injunction as moot. The motion claimed that the Lisson property was not currently

used as a boarding house but, instead, it had two boarding rooms in compliance with the municipal

code. Attached to the motion was Gaca’s affidavit attesting he moved back into the Lisson property

on January 16, 2020. He averred that he lived in the home as the owner occupier with only two

renters (August Brooks and Jeffrey Byron). Gaca stated that all other prior occupants—including

Sean Sealy—had moved out of the home.

¶ 17 On February 26, 2020, Judge Jarz denied defendants’ motion to dismiss the complaint and

dissolve the preliminary injunction. Judge Jarz granted Frederick’s motion for partial summary

judgment (counts III through VI, VIII, XI, home occupations violations) and entered a permanent

-5- injunction enjoining the defendants from operating a boarding house or a parking or storage facility

or engaging in unlawful home occupations. Judge Jarz found issues of fact remained regarding the

public nuisance and conspiracy to commit public nuisance counts (counts I, II).

¶ 18 On March 11, 2020, Frederick moved for the entry of an order of default against defendants

as to the remaining claims for public nuisance and conspiracy to create a public nuisance.

Frederick’s motion sought a default against defendants as a sanction for repeated violations of

court order requiring them to respond to Frederick’s interrogatories and document production

requests. Frederick contended that defendants’ responses to discovery were provided after the

court-ordered deadline and deficient on their face. Additionally, Frederick sought a finding of an

adverse inference against defendants in all future proceedings based on their failure to produce

information requested by Frederick in discovery. Frederick also asked to prohibit defendants from

offering evidence in all future proceedings as to any issues covered by Frederick’s discovery

requests. Alternatively, Frederick sought an order requiring defendants to respond to Frederick’s

discovery requests.

¶ 19 On March 18, 2020, Frederick moved for attorney fees. The same day, Frederick filed a

motion for sanctions against Gaca. The motion sought monetary sanctions for raising frivolous

defenses in support of Gaca’s motion to dismiss. Alternatively, Frederick asked the court to order

defendants to produce all documents relating to payments made by tenants residing at the Lisson

property or using the property for parking or storage. Frederick also asked the court to hold an

evidentiary hearing at which defendants would be ordered to testify concerning such payments.

Frederick sought a monetary sanction in the amount of the gain defendants received from the

unlawful operation of the Lisson property.

-6- ¶ 20 On March 25, 2020, defendants filed an interlocutory appeal from the order denying their

motion to dismiss and granting Frederick’s motion for partial summary judgment. On appeal,

defendants argued—among other things—that Gaca lived in the home with only two other

individuals. Defendants claimed that this complied with the municipal code and the trial court

should have granted defendants’ motion to dismiss and denied Frederick’s motion for partial

summary judgment.

¶ 21 While defendants’ appeal remained pending, Frederick filed a motion to supplement the

record in the trial court to support his motions for an order of default and for sanctions on June 9,

2020. The motion alleged that Gaca attempted to perpetrate fraud on the court. The motion

contained the sworn statement of Sealy. Sealy stated that Gaca’s affidavit contained false

statements, including that Sealy “no longer reside[d]” at the Lisson property, and “[c]urrently

occupants of the Lisson property besides [Gaca], as owner, are August Brooks and Jeffrey Byron

as tenants.” Sealy averred that Gaca’s statement that Sealy no longer lived at the property was

false. Sealy stated that he was still residing at the property as the date of his sworn statement (June

1, 2020) and had done so continuously since April 4, 2019.

¶ 22 On June 11, 2020, defendants’ attorney, Joseph Nichele, filed a motion to withdraw.

¶ 23 On June 12, 2020, Judge Jarz granted Frederick’s motion for leave to supplement the

record. Judge Jarz continued Frederick’s pending motions for default, attorney fees, and other

sanctions.

¶ 24 On June 22, 2020, Frederick filed a petition for adjudication of criminal contempt against

defendant Gaca. The petition alleged that Gaca perpetrated fraud on the court by knowingly filing

false affidavits indicating that Sean Sealy no longer lived at the Lisson property.

-7- ¶ 25 On June 25, Judge Jarz granted Nichele’s motion to withdraw as counsel for defendants.

Judge Jarz allowed attorney Dann Duff to file an appearance on behalf of defendants. Judge Jarz

entered an order continuing Frederick’s pending motions until this court decided defendants’

appeal. Judge Jarz transferred the proceedings on Frederick’s petition to adjudicate criminal

contempt to Judge Carlson in the criminal division. Judge Jarz also appointed plaintiff’s attorneys

Bryan Kopman and Jeffrey Archambeault of Kavanagh, Grumley & Gorbold, LLC, to prosecute

the petition for adjudication of criminal contempt.

¶ 26 On July 7, 2020, Frederick filed a motion for leave to serve discovery requests on Gaca in

the civil action. Relevant to this appeal is Frederick’s request to serve Gaca with a second set of

requests for admission. Frederick claimed the “majority of the requests for admission simply seek

to confirm that the numerous false and misleading statements made or caused to be made by

Defendant Gaca that Sean Sealy no longer resided at the Lisson Property were made knowingly

and for the purpose of falsely arguing that Defendant Gaca was no longer operating a boarding

house at the Lisson Property[.]” Frederick argued that if Gaca asserted his fifth amendment

privilege against self-incrimination in response to the requests to admit, then Gaca’s invocation of

the privilege would support the entry of both summary judgment and default judgment against

Gaca.

¶ 27 On August 5, 2020, counsel for Frederick appeared before Judge Carlson regarding the

petition for adjudication of criminal contempt. After discussing how the criminal matter would

proceed, Judge Carlson stated,

“Judge Jarz may not like it, but I’m going to stay all proceedings in that

matter until we figure out what’s going on because obviously there are Fifth

-8- Amendment issues, there are all sorts of things. So I will issue a stay on all

matters in that or all issues in that matter.”

Judge Carlson added, “I will reach out to Judge Jarz and until we figure out what we are doing

with this I’m entering an order staying those proceedings to protect everybody’s due process

rights.”

¶ 28 On August 6, 2020, Judge Jarz entered an agreed order staying all proceedings in the civil

case pursuant to the order entered by Judge Carlson.

¶ 29 On August 13, 2020, attorney Duff moved to withdraw as counsel for defendants.

¶ 30 On August 21, 2020, the parties appeared before Judge Carlson regarding the contempt

proceedings. 1 After discussing logistics, Judge Carlson noted,

“I did talk to Judge Jarz about the stay that I put in place. He was concerned

because there is an issue with one of the attorneys [withdrawing].

***

I told Judge Jarz I have no problem with that. I mean that’s a

procedural matter. I am simply here to protect Mr. Gaca’s Fifth Amendment

rights. So that’s why I imposed a stay. I think Judge Jarz is clear on that

order. So quite frankly I guess what I’m going to do now is I’m going to tell

you one thing. There are to be no discussions about the civil case during the

pendency of this.

1 Attorney Donald DeWilkins appeared on behalf of defendants in the criminal case. He eventually withdrew as counsel for defendants. -9- I want to make it crystal clear, because you’re asking for

something quite serious. I understand the allegations quite frankly are

disturbing, at least as far as the process and lawyers go. So I want to make

sure that everybody is on board and understands that we are [taking] this

very, very seriously and this is not going to be sort of a tool to resolve

some civil dispute.

So with that being said, what I’m going to do is I am going to put

Mr. Gaca on a 25 thousand personal recognizance bond.”

¶ 31 On August 25, 2020, Judge Jarz granted attorney Dann Duff’s motion to withdraw as

counsel for defendants.

¶ 32 On October 23, 2020, this court issued its opinion in defendants’ appeal. This court

affirmed the court’s order granting partial summary judgment in favor of plaintiff. See Frederick

v. Gaca, 2020 IL App (3d) 200154. We rejected defendants’ argument that the trial court erred in

granting Frederick’s motion for partial summary judgment and entering a permanent injunction

prohibiting defendants’ from operating their home as a boarding house. This court rejected

defendants’ “claim that the house was now occupied by Gaca as owner and two individuals to

whom he rented boarding rooms, which they claim[ed] was a lawful use under the zoning

ordinance.” Id. ¶ 37. We held, “[t]his conduct suggests that the defendants will continue to use the

property, including renting rooms, based on an incorrect interpretation of the zoning ordinances.”

Id. This court added:

“As evidenced by the defendants’ transformation of the boarding or ‘shared’

house to an owner/occupied residence with merely two boarders renting

- 10 - rooms, it seems likely the defendants will continue to operate the property

based on an incorrect interpretation of the zoning ordinances. The harm of

likely repeated violations makes damages ‘difficult or impossible’ to

measure. No available remedy would relieve Frederick of the defendants’

wrongful use of the property neighboring his property.” Id. ¶ 38.

This court’s mandate did not issue until December 7, 2020.

¶ 33 On November 10, 2020, Judge Carlson allowed attorney Jordan Kielan to file his

appearance on behalf of defendants. At the hearing, Judge Carlson denied plaintiff’s motion to

modify defendant Gaca’s bond to require Gaca to comply with the permanent injunction. Judge

Carlson explained the reason for the stay:

“What I did was quite frankly to make it at least more manageable,

is to stay all proceedings in the civil case so that we can figure out what it

is that is going on and what—quite frankly, what the contempt is. And so I

figured the best way to do this is to have it in one place, a one-stop shop for

lack of a better way of describing it.”

¶ 34 On December 9, 2020, the city of Naperville filed a petition to intervene in the civil action

against defendants.

¶ 35 On December 15, 2020, Frederick filed a motion asking Judge Carlson to vacate the orders

imposing a stay of the civil proceedings and requiring any motions for injunctive relief or to

enforce the permanent injunction in the civil case to be brought before Judge Carlson. Frederick

argued that Judge Carlson lacked jurisdiction to impose a stay over the civil proceedings.

Additionally, Frederick argued that a stay was not warranted in the civil case.

- 11 - ¶ 36 On January 12, 2021, the parties appeared before Judge Carlson on plaintiff’s motion to

vacate Judge Carlson’s orders staying the proceedings in the underlying civil matter. After hearing

arguments, the court took the matter under advisement.

¶ 37 On January 15, 2021, Frederick filed a motion for leave to file a second amended petition

for adjudication of criminal contempt. The motion sought to

“simplify this criminal contempt case by essentially reducing it to a single

question for trial. Did Respondent act willfully when he falsely stated and

caused others to falsely state in affidavits that only three individuals—

Respondent, August Brooks (“Brooks”), and Jeffrey Byron (“Byron”)—

were occupying or residing at 2401 Lisson Road in Naperville, Illinois ***

in affidavits that Respondent filed in Frederick v Gaca, No 19 1237 *** on

February 24, 2020?”

The motion added, “In addition to simplifying the charges against Respondent, the proposed

Second Amended Petition would make clear there is no overlap whatsoever between these charges

and the issues remaining to be determined in the Underlying Action.” Additionally, Frederick

argued, “the stay in the Underlying Action should be lifted. Respondent’s Fifth Amendment rights

will not be jeopardized by further proceedings on the Petitioner’s remaining claims and the City

of Naperville’s proposed claims, which have nothing to do with the single, narrow issue presented

in this criminal contempt proceedings.”

¶ 38 On February 5, 2021, Frederick filed a motion for additional disclosures pursuant to Illinois

Supreme Court Rule 413(e) (eff. July 1, 1982). Frederick sought the disclosure of “any

communications, whether oral or written, including without limitation statements, memoranda,

emails, and notes, between Respondent and his former attorneys *** about the identity of any

- 12 - person occupying or residing” at the Lisson property “during or after February 2020.”

Specifically, Frederick sought disclosure of statements between Gaca and attorneys Sullivan and

Nichele regarding whether Gaca lied by representing that Sealy no longer lived at the Lisson

property in February 2020. In addition to relying on Sealy’s sworn statement to establish Gaca

committed fraud in his affidavit, Frederick also attached a copy of a verified complaint filed by

Gaca against Sealy on June 19, 2020. Gaca’s complaint for forcible entry and detainer alleged

Gaca served Sealy with 30 days’ notice to terminate their month-to-month rental tenancy in

January 2020. However, Sealy failed to leave the premises as of the date of the filing of the

complaint. Frederick acknowledged these communications as being protected by the attorney-

client privilege. However, Frederick contended the crime-fraud exception to the rule applied where

Gaca used their services to make false statements about the occupants of the Lisson property.

¶ 39 On March 2, 2021, the parties appeared before Judge Carlson regarding Frederick’s motion

to lift the stay and motion for additional disclosures. Judge Carlson denied both Frederick’s

motions.

¶ 40 On March 2, 2021, Frederick filed a motion to lift the stay before Judge Jarz in the civil

case. On March 5, 2021, Judge Jarz denied Frederick’s motion to lift the stay and granted the city

of Naperville’s petition to intervene.

¶ 41 Frederick appeals.

¶ 42 II. ANALYSIS

¶ 43 A. Frederick’s Motion for Additional Disclosures

¶ 44 On appeal, Frederick contends the trial court erred when it denied his motion for the

disclosure of Gaca’s communications with two of his former attorneys (Nichele and Sullivan). As

an initial matter, defendants contend that this court lacks jurisdiction to consider the court’s

- 13 - decision to deny Frederick’s motion. Frederick filed his interlocutory appeal pursuant to Illinois

Supreme Court Rule 604(a)(1) (eff. July 1, 2017). Rule 604(a)(1) provides:

“(1) When State May Appeal. In criminal cases the State may appeal

only from an order or judgment the substantive effect of which results in

dismissing a charge for any of the grounds enumerated in section 114-1 of

the Code of Criminal Procedure of 1963; arresting judgment because of a

defective indictment, information or complaint; quashing an arrest or search

warrant; or suppressing evidence.” Id.

According to defendants, jurisdiction is lacking because the denial of Frederick’s discovery request

is not a suppression of evidence and is not appealable under Rule 604. We agree.

¶ 45 The trial court here did not suppress evidence and did not bar the admission of any evidence

of Gaca’s communications with Sullivan or Nichele. Instead, the court denied Frederick’s request

to issues subpoenas to each attorney. In other words, the trial court only ruled that it would not

compel the production of such evidence. Ministerial or administrative orders that regulate only

the procedural details of litigation cannot be the subject of an interlocutory appeal. In re A Minor,

127 Ill. 2d 247, 262 (1989). Examples of such nonappealable orders include subpoenas, discovery

orders, and orders relating to the court’s control of its docket. Short Brothers Construction, Inc. v.

Korte & Luitjohan Contractors, Inc., 356 Ill. App. 3d 958, 960 (2005). The denial of Frederick’s

request to issue subpoenas—a discovery request—falls within the category of nonappealable

orders. Although Frederick claims the court’s ruling effectively suppressed evidence, the decision

leaves open the possibility for the admission of any evidence Frederick procures at trial. The

court’s order does not prevent the information sought from being presented at trial. Accordingly,

we lack jurisdiction to consider an appeal from the court’s denial of Frederick’s discovery motion.

- 14 - ¶ 46 B. Motion to Lift the Stay

¶ 47 Next, Frederick contends that Judge Carlson and Judge Jarz erred in denying his motion to

vacate the orders Judge Carlson entered staying the proceedings in the underlying civil case.

Frederick contends that Judge Carlson lacked jurisdiction to stay the civil proceedings. Although

Frederick contends Judge Carlson lacked jurisdiction, we note that Judge Jarz (the judge presiding

over the civil proceedings) later entered an order adopting Judge Carlson’s decision to stay the

civil proceedings. Frederick does not argue that Judge Jarz lacked jurisdiction to stay the civil

proceedings. Therefore, we need not address Judge Carlson’s jurisdiction and consider only

whether Judge Jarz erred in staying the civil proceedings.

¶ 48 At the outset, Frederick contends that we should apply a de novo standard of review

because Judge Carlson exceeded his jurisdictional authority when he stayed the civil proceedings.

However, as noted above, there is no claim that Judge Jarz lacked jurisdiction to enter the stay.

Therefore, we do not apply a de novo standard. Instead, when evaluating whether to stay a civil

suit to prevent compulsory self-incrimination, this court applies the abuse of discretion standard

of review. Jacksonville Savings Bank v. Kovack, 326 Ill. App. 3d 1131, 1137 (2002). An abuse of

discretion occurs when “the ruling is arbitrary, fanciful, or unreasonable, or when no reasonable

person would take the same view.” Bovay v. Sears, Roebuck & Co., 2013 IL App (1st) 120789, ¶

26. Upon review, we find Judge Jarz’s decision to stay the proceedings to protect Gaca’s fifth

amendment privilege is not arbitrary, fanciful, or unreasonable. We hold Judge Jarz did not abuse

his discretion in imposing the stay of the civil proceedings.

¶ 49 In this case, Gaca never moved to stay the civil proceedings. Instead, the trial court sua

sponte entered an order staying the proceedings. When he adopted Judge Carlson’s decision to

stay the civil case, Judge Jarz explained:

- 15 - “Well, what I was going to tell you is that in my discretion as far as

the various, I think there is about, like, six different elements of that CHB

Uptown Properties case. As I get it, I have some discretion deciding these

issues and I think that the likelihood of there being some infringement on

Fifth Amendment rights is significant in this case, and I don’t want to tread

on anything that is going to interrupt or upset the apple cart and cause

additional extra issues for Judge Carlson.”

¶ 50 Ordinarily, a court will consider certain factors before a defendant has testified or provided

evidence of his wrongful conduct in determining whether a stay should be granted when a civil

proceeding is pending and there is a criminal investigation pending or likely to occur. United States

v. Kordel, 397 U.S. 1 (1970). Those factors include: (1) the plaintiff’s interest in an expeditious

resolution of the civil case and any prejudice to the plaintiff in not proceeding; (2) the interests of

and burdens on the defendant, including the extent to which defendant's fifth amendment rights

are implicated; (3) the convenience to the court in managing its docket and efficiently using

judicial resources; (4) the interests of persons who are not parties to the civil proceeding; and (5)

the interests of the public in the pending civil and criminal actions. Kovack, 326 Ill. App. 3d at

1136.

¶ 51 As to Frederick’s interest, he has an interest in a prompt resolution his civil claims. This

factor is not significant under the present circumstances. The record shows that the criminal

contempt proceeding was scheduled for trial setting. He can promptly pursue his civil claims once

the criminal contempt proceedings conclude.

¶ 52 As to Gaca’s interest, whether a party’s fifth amendment right is implicated is a significant

factor for the trial court to consider in deciding whether to stay civil proceedings, “but it is only

- 16 - one consideration to be weighed against others.” Federal Savings & Loan Insurance Corp. v.

Molinaro, 889 F.2d 899, 902-03 (9th Cir.1989). When issues in a criminal matter significantly

overlap with those in the civil proceedings, self-incrimination is more likely. Kovack, 326 Ill. App.

3d at 1137. Here, the criminal and civil proceedings have a significant overlap. The criminal

contempt proceeding is directed toward the legitimacy of Gaca’s filings in the civil suit. Frederick

also pursued discovery and sanctions in the civil suit based on Gaca’s alleged false statements.

Frederick also sought to use Frederick’s potential use of the fifth amendment against Gaca in the

civil suit. Although Frederick relies on potential incriminating statements Gaca made in the past,

Frederick’s pending motions in the civil suit may still implicate Gaca’s fifth amendment right, and

this factor favors staying the civil proceedings until the criminal contempt proceeding concludes.

¶ 53 As to the convenience of the court, the criminal contempt proceeding may resolve many

significant issues in the civil suit. The court is justified in staying the civil proceedings to better

manage the overall proceedings. The court’s need to manage its docket favors entering a stay.

¶ 54 Finally, the interest of nonparties and the public favor the prompt resolution of civil

proceedings. The citizens of Naperville have an interest in promptly resolving the public nuisance

created by the unlawful operation of boarding houses. This consideration must also be balanced

against the public’s interest in the protection and exercise of Gaca’s fifth amendment right. This

factor is neutral.

¶ 55 Having reviewed the trial court’s decision under the circumstances, we conclude the court

did not abuse its discretion in sua sponte issuing a stay of the civil proceedings. Accordingly, the

court did not err when it denied Frederick’s motion to vacate and lift the stay of the civil

proceedings.

¶ 56 III. CONCLUSION

- 17 - ¶ 57 For the foregoing reasons, we dismiss in part and affirm in part the judgment of the

circuit court of Will County and remand for further proceedings.

¶ 58 Dismissed in part, affirmed in part, and remanded for further proceedings.

- 18 -