People ex rel. Fahner v. Colorado City Lot Owners & Taxpayers Ass'n

456 N.E.2d 943, 119 Ill. App. 3d 691, 75 Ill. Dec. 122, 1983 Ill. App. LEXIS 2520
CourtAppellate Court of Illinois
DecidedNovember 17, 1983
DocketNo. 82—2133
StatusPublished
Cited by1 cases

This text of 456 N.E.2d 943 (People ex rel. Fahner v. Colorado City Lot Owners & Taxpayers Ass'n) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People ex rel. Fahner v. Colorado City Lot Owners & Taxpayers Ass'n, 456 N.E.2d 943, 119 Ill. App. 3d 691, 75 Ill. Dec. 122, 1983 Ill. App. LEXIS 2520 (Ill. Ct. App. 1983).

Opinion

JUSTICE JOHNSON

delivered the opinion of the court:

Plaintiff, Tyrone C. Fahner, Illinois Attorney General, appeals a decision of the trial court which denied his petition for an order holding defendant, Mark P. Einstein, in contempt. The Attorney General presents the following issues for review: (1) whether the trial court erred in modifying the terms of a preexisting consent decree; (2) whether the court misinterpreted a provision of the Consumer Fraud and Deceptive Business Practices Act; and (3) whether the court erred in denying his petition for a rule to show cause and motion to suspend assurance of voluntary compliance proceedings.

We affirm.

The present appeal arises from and is a continuation of a prior appeal involving the same parties. In People ex rel. Fahner v. Colorado City Lot Owners & Taxpayers Association (1982), 108 Ill. App. 3d 266, 438 N.E.2d 1273, this court affirmed the trial court’s finding that defendant Einstein had violated a consent decree and was therefore in contempt of court. We reduced defendant’s fine from $4,500 to $500 because defendant did not knowingly waive his right to a jury trial. 108 Ill. App. 3d 266, 278.

On February 2, 1979, a consent decree was entered between the Attorney General and Einstein. The decree alleged that Einstein had solicited property owners of land located in Colorado City, Colorado, who resided in the Chicago area, for the purpose of conducting litigation against the owner and developer of Colorado City. It further alleged that Einstein made certain misrepresentations to the lot owners. Einstein was permanently enjoined from organizing any business entity for the purpose of soliciting litigants for a lawsuit against the developer of Colorado City or any other business entity without entering into an assurance of voluntary compliance with the Attorney General.

On September 29, 1981, Beinstein filed a petition for a rule to show cause why the Attorney General and William Shapiro, an assistant Attorney General, should not be held in contempt of court. Einstein alleged that the'1979 consent decree required that he enter into an assurance of voluntary compliance before performing certain activities on behalf of Illinois consumers. He stated that on May 25, 1981, he had requested an assurance for a subdivision known as Palm Coast, Florida. But after meetings and the exchange of correspondence, an assurance had not been executed. Einstein asked that the Attorney General be restrained from refusing to enter into an assurance of voluntary compliance.

On October 30, 1981, Einstein’s petition was dismissed because the parties had entered into an assurance of voluntary compliance.

In May 1982, Einstein requested an assurance, which would be a carbon copy of the Palm Coast assurance, for Rio communities, a subdivision in New Mexico, and he also requested assurances for other subdivisions.

On June 3, 1982, the Attorney General filed a petition for a rule to show cause why Einstein should not be held in contempt of court. The petition alleged that Einstein violated the consent decree by the following acts:

(1) Einstein controlled the management of the Colorado City Lot Owners and Taxpayers Association.
(2) Einstein proposed a settlement for Colorado City and Cochiti Lake property owners to the defendant in two Federal lawsuits without the knowledge of John Bowlus, attorney for plaintiff property owners.
(3) Einstein tried to determine litigation strategy.
(4) In various letters Einstein or officers of the lot owners associations criticized Bowlus’ handling of the Federal lawsuit, solicited money for another attorney, and solicited money for Einstein.
(5) Einstein caused the lot owners’ association to transfer $25,000 in association funds to him for his legal expenses.

On June 3, 1982, the Attorney General also filed a motion to suspend assurance of voluntary compliance proceedings. Plaintiff wanted to suspend negotiations with Einstein because of the latter’s alleged violations of the consent decree. Einstein responded with a motion to strike and dismiss the petition for rule to show cause and a motion to vacate the consent decree. On June 30, 1982, the trial court denied all motions and on its own motion modified the consent decree by deleting sections C and D of article V which provided as follows:

“C. That Defendant MARK P. EINSTEIN is permanently enjoined and restrained from organizing, reorganizing, incorporating, or establishing any non-incorporated association, partnership, or any other business entity under any other name or legal structure for the purpose of soliciting litigants or potential litigants for a lawsuit, or as an employee or agent of any of the aforementioned entities, without entering into an ASSURANCE OF VOLUNTARY COMPLIANCE with Consumer Fraud Division of the ILLINOIS ATTORNEY GENERAL’S office.
D. That Defendant EINSTEIN is permanently enjoined and restrained from any organizational role in a lot owner’s association as set forth in ‘C’ above, where he might solicit, collect, negotiate, disburse, or deposit funds, on behalf of that aforementioned group or entity, as opposed to his acting as an agent or employee of that entity.”

On July 21, 1982, the trial court denied plaintiff’s motion to reconsider and motion for stay. Plaintiff appeals.

The first issue raised by plaintiff is whether the trial court erred in modifying the terms of the consent decree. Plaintiff argues that the trial court’s deletion of sections C and D of article V gutted the injunction section of its enforcement threat. The trial court mistakenly concluded that there had been a mutual abandonment of the consent decree, but, according to plaintiff, only Einstein wanted to abandon the agreement. Plaintiff insists that no basis exists in the record for modifying the decree. Plaintiff described the trial court as frustrated with a vehement legal dispute between the parties, as willing to accept Einstein’s outrageous pleading, and as being “disinterested and disinclined” in presiding over a hearing based upon “powder puff” pleadings. Finally, plaintiff contends that the consent decree is conclusive upon the parties as originally executed and should be enforced as written.

In his brief, plaintiff concedes that the trial court had jurisdiction and power to modify the consent decree injunction, but argues there was not a sufficient basis in the record to support the action taken by the court. We disagree.

At a hearing on June 30, 1982, the trial judge remarked that he had not only reviewed the pleading in the case, he had also reviewed his notes and selective transcripts of proceedings between the parties in the past years. The judge stated that it was not unreasonable for him to assume that at the time the consent decree was executed, both sides were satisfied with it. The trial court then commented as follows:

Free access — add to your briefcase to read the full text and ask questions with AI

Related

People Ex Rel. Fahner v. Colorado City Lot Owners & Taxpayers Ass'n
476 N.E.2d 409 (Illinois Supreme Court, 1985)

Cite This Page — Counsel Stack

Bluebook (online)
456 N.E.2d 943, 119 Ill. App. 3d 691, 75 Ill. Dec. 122, 1983 Ill. App. LEXIS 2520, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-ex-rel-fahner-v-colorado-city-lot-owners-taxpayers-assn-illappct-1983.