Vite v. Vargason

2023 IL App (2d) 220147-U

• Court: Appellate Court of Illinois
• Decided: February 15, 2023
• Docket: 2-22-0147
• Status: Unpublished

Opinion

2023 IL App (2d) 220147-U No. 2-22-0147 Order filed February 15, 2023

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

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

MICHAEL VITE, ) Appeal from the Circuit Court ) of Kane County. Plaintiff-Appellee, ) ) v. ) No. 19-CH-932 ) FRED VARGASON and ST. CHARLES ) PONTIAC, INC., d/b/a Nissan of St. Charles, ) ) Defendants ) Honorable ) Kevin T. Busch, (Fred Vargason, Defendant-Appellant). ) Judge, Presiding. ______________________________________________________________________________

MICHAEL VITE, ) Appeal from the Circuit Court ) of Kane County Plaintiff-Appellee, ) ) v. ) No. 20-CH-306 ) FRED VARGASON; ST. CHARLES ) INVESTMENTS, LLC; NISSAN OF ST. ) CHARLES INSURANCE AGENCY, LLC; ) MILL CREEK INVESTMENTS, INC.; ) ROYAL HAWK REINSURANCE ) COMPANY; CKD INVESTMENT, INC.; ) and POLSINELLI, P.C., ) ) Defendants ) Honorable ) Kevin T. Busch (Fred Vargason, Defendant-Appellant). ) Judge, Presiding. 2023 IL App (2d) 220147-U

______________________________________________________________________________

JUSTICE JORGENSEN delivered the judgment of the court. Presiding Justice McLaren and Justice Hutchinson concurred in the judgment.

ORDER

¶1 Held: Trial court’s contempt order is affirmed.

¶2 Defendant, Fred Vargason, appeals from the circuit court’s order holding him in indirect

civil contempt based on his violation of a receivership order that was entered in relation to

Vargason’s property, assets, and estate and several entities in which Vargason had an interest,

including St. Charles Pontiac, Inc., doing business as Nissan of St. Charles (dealership). We

affirm.

¶3 I. BACKGROUND

¶4 A. Receivership Order, Wage Claim, and Motion to Reconsider

¶5 This is the third interlocutory appeal in this case, which involves two separate actions, case

Nos. 19-CH-932 (filed December 11, 2019) (2019 case) and 20-CH-306 (filed August 20, 2020)

(2020 case), that have been consolidated for discovery in the circuit court. See Vite v. Vargason,

2020 IL App (2d) 200487-U (dismissing Vargason’s appeal from a temporary restraining order);

and Vite v. Vargason, 2022 IL App (2d) 220143 (dismissing Vargason’s appeal from an order

denying his motion to modify the receivership order). The actions were initiated by plaintiff,

Michael Vite, against Vargason; the dealership; St. Charles Investments, LLC; Mill Creek

Investments, Inc.; Royal Hawk Reinsurance Company; CKD Investment, Inc.; and Polsinelli, P.C.

In the 2019 case, Vite, who was the dealership’s general manager, alleged in part that he had made

a “commissions loan” to the dealership, which was owned by Vargason. The commissions loan

consisted of deferred commissions to which Vite was entitled. He asserted, among other claims,

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a breach-of-contract claim based on the dealership’s failure to repay the commissions loan and

sought money damages.

¶6 Before filing those actions, however, in April 2019, Vite filed a wage claim with the Illinois

Department of Labor (Department) under the Illinois Wage Payment and Collection Act (Act)

(820 ILCS 115/1 et seq. (West 2018)). The wage claim was duplicative of the breach-of-contract

claim, in that it sought payment of the unpaid commissions.

¶7 On December 13, 2019, the circuit court entered a temporary restraining order in the 2019

case. The order enjoined Vargason and the dealer from “disposing, converting, secreting, etc.,

any assets belonging to [the dealership] and existing within the State of Illinois and shall not

remove any such assets from the State of Illinois.” On January 30, 2020, St. Charles Investments,

LLC, which owned the property on which the dealership operated and was controlled by Vargason

but was not a party to the 2019 case, closed on the sale of the property to a third party. As a result

of the sale, on October 7, 2020, the circuit court determined that Vargason had violated the

temporary restraining order and held him in indirect civil contempt.

¶8 On October 13, 2020, the circuit court appointed Thomas Springer as receiver for all

defendants in both actions (the receivership defendants), 1 except Polsinelli, P.C., a law firm that

represented Vargason, and entered a written order detailing the scope of the appointment. In

pertinent part, the order stated as follows:

1 The receivership applied to Vargason’s “property, assets, and estate, [but] not his person.”

(Emphasis in original.)

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“2. Except as herein provided, [Springer] is hereby authorized to, and shall, without

further order, authorization, or direction of the Court, take all reasonable and necessary

action to:

***

(b) Investigate, discover, and, subject to final Court approval, negotiate and

compromise or fully discharge, the Receivership Defendants’ debts, obligations, or

other liabilities;

(d) Prosecute or defend any actions, suits, claims, or other proceedings

before any *** administrative body *** on behalf and in the name of, ex relatione,

the Receivership Defendants (the [‘]Receivership Defendants Litigation[’]) and,

subject to the Court’s final approval, settle, compromise, dismiss, or non-suit the

same;

(1) Notwithstanding sub-paragraph (d) or anything else contained in

this Order, the Receiver shall have no rights, powers, authorities, duties,

responsibilities, or obligations with respect to any defense of Fred

Vargason, individually or personally.” (Emphasis added.)

The order also stated as follows:

“Fred Vargason, and each of his and the other Receivership Defendants’ employees

and agents, are hereby terminated as employees and agents of the Receivership Defendants,

and shall immediately cease acting as an employee or agent of the Receivership

Defendants, including as a shareholder, member, owner, director, managing member,

officer, [‘]independent contractor[’], other employee or agent of any and all of the

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Receivership Defendants. Additionally, Fred Vargason shall not attempt to exercise any

corporate governance or management control over the Receivership Defendants.”

(Emphases added.)

Finally, the order provided that “[a]ny person subject to or with notice of this [o]rder and who

violates this [o]rder or attempts to or does hinder, interfere with, obstruct, or frustrate the Receiver

in carrying out his powers and duties may be held in contempt.”

¶9 On September 9, 2021, Springer sent a notice of receivership to all potential creditors of

the receivership defendants. The notice included instructions on how to file a claim, and it set a

claims deadline of October 15, 2021. Despite receiving this notice, Vite did not inform Springer

that the wage claim was currently pending before the Department and that a hearing had been set

for October 28, 2021.

¶ 10 On October 28, 2021, an administrative law judge (ALJ) held a hearing on Vite’s wage

claim. Vite, his attorney, and a witness appeared, but neither Vargason nor a representative of the

dealership appeared. Vite did not inform the ALJ of the receivership order’s existence, or more

specifically, that Vargason was prohibited from acting as the dealership’s representative and that

Springer, as receiver, was the dealership’s representative. The ALJ purportedly tried to telephone

Vargason, to no avail.

¶ 11 On December 6, 2021, the ALJ entered an order, finding in Vite’s favor and setting forth

the basis for his decision. The ALJ noted that Vargason and the dealership had been properly

served with notice of the hearing but did not appear. The ALJ also noted that he nevertheless

heard and received evidence and entered an order based on that evidence. See 56 Ill. Admin.

Code § 300.1150(b) (2014) (when an employer fails to appear at hearing, the ALJ shall issue a

decision “based on the evidence introduced and the evidence of the record”). Applying the

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required burden shifting approach (56 Ill. Admin. Code § 300.1070 (2014)), the ALJ found Vite

“met his initial burden of creating a reasonable inference of the amount of commissions owed by

respondent” and that respondent (presumably the dealership) “failed to refute any of the evidence,

inferences of the claimant.” The ALJ also imposed personal liability upon Vargason, finding the

evidence established that Vargason was the owner, president, and day-to-day operator of the

dealership and “made the decision to not pay [Vite] the monies owed in violation of the Act.”

See 820 ILCS 115/2 (West 2018); 56 Ill. Admin. Code § 300.620 (2014) (providing for personal

liability of corporate officers for wages and final compensation).

¶ 12 On December 13, 2021, in the form of a one-page letter transmitted via two email

addresses, including fred@nissanofstcharles.net, Vargason filed with the Department a pro se

motion to reconsider. In the motion, Vargason asserted that, although “we” received a notice

dated October 20, 2021, “we” received no notice of the date and time of the hearing, and now “we”

received notice of a decision that occurred on October 28, 2021. Vargason then stated, “I had no

notice *** and was found in default by not showing up to defend the company.” (Emphasis

added.) According to Vargason, the October 20, 2021, notice was sent to an old North Carolina

address, even though, since August, Vite and his counsel had a copy of “our” new address.

Vargason asserted that he and the ALJ “had other hearings over the last year, and [the ALJ knew]

I always am available to defend the company.” (Emphasis added.) He concluded the motion

by requesting the Department to “set aside this decision and reschedule a new hearing so I may

attend and defend our company position.” (Emphasis added.)

¶ 13 On December 20, 2021, the Department’s chief ALJ set aside the decision, reopened the

matter for additional hearing, and provided that a notice of hearing would be forthcoming under

separate cover.

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¶ 14 B. Rule to Show Cause and Contempt Hearing

¶ 15 On December 29, 2021, Vite petitioned for a rule to show cause against Vargason. 2 Vite

alleged that, in addition to sending the motion to reconsider, Vargason had “obtained control over

the domain name nissanofstcharles.net and [was] using the email address

fred@nissanofstcharles.net to misrepresent his authority on behalf of Nissan of St. Charles.”

Thus, Vite contended, Vargason continued to represent that he had the authority to act on behalf

of the dealership, which was in direct conflict with the receivership order’s provisions that

terminated Vargason’s authority and precluded him from exercising “any corporate governance or

management control over the receivership defendants.” Vite sought an order holding Vargason

in contempt, ordering him to immediately withdraw the motion to reconsider “as void ab initio as

the same was procured under false authority,” awarding Vite attorney fees, and ordering Vargason

to pay a fine or incarcerating him until he purged himself of the contempt.

¶ 16 Vargason responded to the petition, arguing, in sum, that his motion to reconsider was sent

to the Department because he had not received notice of the hearing, the decision imposed upon

him individual liability, and he wished to defend himself in his personal capacity. He asserted

that the motion to reconsider did not violate the receivership order, as the order expressly provided

that Springer had no obligation or authority to defend Vargason personally. Finally, Vargason

asserted that his reference to the “company” in his motion to reconsider might have been “inartful,”

but that “mistakes in pleadings do not merit contempt proceedings.”

¶ 17 On February 9, 2022, the circuit court issued a rule to show cause and ordered Vargason

to appear on March 30, 2022, to demonstrate why he should not be held in contempt.

2 The petition was filed but not heard on an emergency basis.

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¶ 18 In the meantime, on February 18, 2022, Vargason filed a “Motion for Leave to Represent

Corporation Before the Department of Labor.” In the motion, Vargason asked the circuit court

to modify the receivership order, specifically, by granting him the authority to defend the

dealership in the proceedings before the Department and requiring Springer to cooperate with him

in preparing and presenting such defense. He asserted Springer had denied any prior knowledge

of the wage claim and, even after learning of it, refused to defend the dealership. Vargason

“believe[d] there [was] a good defense to the [w]age [c]laim that [Springer] was failing to assert,”

and, because Vargason was subject to personal liability for the claim, he would be prejudiced by

Springer’s failure to defend the claim on the dealership’s behalf. In sum, Vargason asserted that,

if the dealership did not present a defense, it would again be found in default and personal liability

would flow to him. As such, he wished to represent the dealership because he could not defend

himself without also defending the dealership, and Springer did not intend to defend the dealership.

¶ 19 At the March 30, 2022, hearing, Vargason testified that he did not receive notice of Vite’s

wage claim or the hearing on it. Nor did he receive a phone call from the ALJ on the date of the

hearing. Vargason first learned of the claim when he received the Department’s decision. To

that point, the Department had been sending notices to an address in North Carolina, where he

lived until August 2021, when he moved to Iowa. The decision “scared [Vargason] to death,”

because it imposed on him personal liability for the entire claim. Thus, he sent the motion to

reconsider. At the time, Vargason did not know that the Department was unaware of the

receivership order. Vargason understood the wage claim to be duplicative of the commissions

loan claim in the 2019 case.

¶ 20 On cross-examination, Vargason acknowledged that he used the email address

fred@nissanofstcharles.net in 2020 and 2021, and that he sent the motion to reconsider from that

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email address. At the time, he also used a Gmail account, vargasonfred@gmail.com. Vargason

testified that fred@nissanofstcharles.net was a personal email address.

¶ 21 Vargason testified he had several wage claims pending against him in the Department.

He denied that, in September 2019, attorney Steve Varhola filed an appearance on his behalf in

relation to Vite’s claim. However, he acknowledged that, on April 23, 2021, he was copied on

an email in which Varhola withdrew his appearance on Vite’s and 11 other wage claims. He also

acknowledged that, at that time, the receivership order was in effect. He did not notify the

Department about the receivership order. After Varhola withdrew his appearance, Vargason did

not notify the Department to use an email other than fred@nissanofstcharles.net, nor did he notify

the Department of his relocation to Iowa. Before filing his motion to reconsider with the

Department, Vargason did not contact Springer or the court. Vargason testified that he did not

request permission from the receiver or court because he filed the motion on a personal basis.

¶ 22 Vargason testified that his original business email address was

fred@nissanofstcharles.com. He did not use that address to email the Department.

¶ 23 Vite testified that, although, in the Department wage claim, he is seeking $711,041.62 in

unpaid commissions, those are not the same wages that he is seeking in his circuit court complaint.

After Vite’s relevance objection, Vargason’s counsel noted that the relevance is that Vite cannot

double recover and is required to inform the Department that he is seeking the same wages in both

the wage claim and circuit court. The trial court sustained the objection and noted that neither

the actions Vite should take, nor Vargason’s defenses to the wage claim, were currently the issue

before it. Vite was present at the Department’s wage hearing; he could not recall whether the

ALJ attempted to reach Vargason.

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¶ 24 In his closing statement, Vargason’s counsel reiterated for the court that Vargason filed the

motion to reconsider simply as a means of reopening the wage claim for an opportunity to appear:

“All Mr. Vargason has done so far with respect to this claim is to ask, I’ll give you

perhaps inartfully, for an opportunity to appear and defend. The fact that at that hearing

it will necessarily involve a defense of some of the claims against the company arises by

virtue of the fact that the Wage and Payment Act imposes that individual liability on him.

He would be handcuffed today if he were not able to present some defense with respect to

the claims.

And I will represent to your Honor—and obviously because we have filed a motion,

Mr. Vargason certainly is not going to appear before the Department of Labor and try to

defend the company or represent that he’s doing that without your Honor’s permission.

But I will suggest to you that there’s absolutely no way to defend this claim without

somebody appearing on behalf of the company. And otherwise what happens is it results

in a default for Mr. Vargason and he’s entitled to defend himself.”

¶ 25 In response, Vite did not dispute that Vargason had a right to defend himself personally in

the wage claim. Upon court questioning, Vite’s counsel provided theoretical arguments that

Vargason could raise for himself without defending the company. Further, counsel represented

to the court that, at one point, Vargason had been represented by counsel before the Department

and had argued that Vite was seeking double recovery in both the wage claim and circuit court,

but the Department had rejected that argument.

¶ 26 In conclusion, Vargason noted that he simply received notice of a hearing and that no one

showed up and he did not know why. His counsel reiterated that Vargason was not trying to

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willfully violate the receivership order; rather, he wanted the opportunity to appear. “What [Vite

is] trying to do, I think, is in part restrain him from ever appearing before the Department of

Labor.”

¶ 27 C. Contempt Finding

¶ 28 On April 1, 2022, the circuit court found Vargason in contempt and also denied his motion

to modify the receivership order.3 In announcing its ruling, the court noted that, with respect to

defending himself personally, but not raising arguments on behalf of the dealership, Vargason was

in “a difficult situation.” But the court noted that Vargason was not new to the courtroom, had

previously been found in contempt, which had precipitated the court’s appointment of a receiver,

as well as a stay of arbitration proceedings which it had deemed to be a coercive and abusive use

of process by Vargason. The court continued,

“This [c]ourt made it crystal clear to Mr. Vargason that he was not in any way to

defy the [c]ourt’s order; both the injunction that was originally entered and the receivership

order. Both of them precluded him from acting on behalf of [the dealership], which he

clearly did. He sends them emails from fred@nissanofstcharles. Characterizing it as

my private email does not in any was lessen the impact it has on the Department of Labor

administrative law judge who knows that email to belong to the company.”

¶ 29 The court continued that Vargason’s commentary in the motion to reconsider clearly stated

that the was defending the company, wanted an opportunity to come in and defend “our company

3 Vargason filed a separate appeal from the order denying his motion, which was docketed

in this court as appeal No. 2-22-0143. We dismissed that appeal for lack of jurisdiction. Vite v.

Vargason, 2022 IL App (2d) 220143.

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position,” and that he had admitted in his testimony that he was defending the company in 2021.

It noted that “Mr. Vargason was well aware that his obligation was to come here before the fact,

not after the fact” and, with respect to Vargason’s comment in the motion to reconsider that he

was always available to defend the company, it stated, “No, Mr. Vargason, you are not. That’s

why I appointed a receiver because I’ve been trying to corral in your activity, which from the very

beginning of this case has been what I would describe as fast and loose.” The court found that

Vargason willfully violated the court’s receivership order.

¶ 30 In the written contempt order, the court found that Vargason lacked authority to send the

Department a motion to reconsider, and he lacked authority to represent the dealership before the

Department. Nevertheless, in his motion to reconsider, Vargason had repeatedly purported to

represent and sought to defend the dealership, without legal or justifiable excuse and in willful and

contumacious violation of paragraphs 7 and 14 of the receivership order. The written contempt

order further required Vargason to take various actions to purge the contempt, including to inform

the Department by letter that he was and is not authorized to represent the interests of the dealership

and “was without authority to send” the motion for reconsideration. Further, the order provided

that Vargason was immediately enjoined and barred from using the email address

fred@nissanofstcharles.net, accessing or utilizing that address, deleting, altering, or modifying any

contents of that account, and that he was to immediately turn over all credentials and login

information for that email account.

¶ 31 On May 2, 2022, Vargason timely filed a notice of appeal. In the notice, he identified the

order appealed from as the April 1, 2022, order finding him in contempt, and he asked this court

to reverse that order.

¶ 32 II. ANALYSIS

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¶ 33 A. Lack of Appellee’s Brief

¶ 34 Preliminarily, we note that Vite has elected not to file an appellee’s brief. Therefore, our

review is guided by the principles set forth in First Capitol Mortgage Corp. v. Talandis

Construction Corp., 63 Ill. 2d 128 (1976). Under Talandis, when an appellee does not file a brief,

the appellant is not automatically entitled to a reversal, because “[a] considered judgment of the

[circuit] court should not be set aside without some consideration of the merits of the appeal.” Id.

at 131. Instead, if we determine justice so requires or if the record is simple and the issues can

be easily decided, we have discretion to decide the merits of the case. Id. at 133. Here, although

the record is quite voluminous, the portions concerning the issues on appeal are relatively

straightforward, such that the appeal can easily be decided without the aid of an appellee’s brief.

Accordingly, we choose to address the merits of Vargason’s appeal, notwithstanding the absence

of an appellee’s brief.

¶ 35 B. Contempt Finding

¶ 36 Vargason argues on appeal that the circuit court abused its discretion by finding him in

contempt, because there was no evidence that his conduct was calculated to embarrass, hinder, or

obstruct the court in its administration of justice or to lessen its dignity or authority. Specifically,

he argues first that he was merely trying to reopen the Department’s case, after he had not received

notice of the hearing and where it resulted in a decision imposing upon him substantial personal

liability. Second, he argues that the motion to reconsider did not hinder the receiver from

exercising his duties, because the receiver had not appeared before the Department and had no

intention of doing so. Third, Vargason asserts that the court abused its discretion, where it orally

recognized the problem Vargason had faced, yet still found him in contempt. Fourth, he argues

that the court’s ruling precludes him from defending himself in the wage claim. Finally,

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Vargason contends that his use of the email address fred@nissanofstcharles.net could not have

violated the receivership order, because that order did not explicitly prohibit his use of that email

address. For the following reasons, we reject Vargason’s arguments.

¶ 37 “Vital to the administration of justice is the inherent power of courts to compel compliance

with their orders.” Sanders v. Shephard, 163 Ill. 2d 534, 540 (1994). A party may be held in

civil contempt for willfully failing to comply with a court order. In re Marriage of Harnack &

Fanady, 2022 IL App (1st) 210143, ¶ 46. Once the party bringing the contempt petition

establishes a prima facie case reflecting disobedience of a court order, the burden shifts to the

alleged contemnor to prove that the failure to comply was not willful or contumacious and that

there exists a valid excuse. Id. Whether a party is guilty of contempt is a question of fact to be

resolved by the circuit court, and its resolution of the issue will not be disturbed on appeal unless

it is against the manifest weight of the evidence or the record reflects an abuse of discretion. Id.

¶ 47; see also In re Marriage of Logston, 103 Ill. 2d 266, 287 (1984).

¶ 38 Here, Vargason concedes that he prepared and sent the motion to reconsider, such that the

court’s finding in that regard is not against the manifest weight of the evidence. However, he

argues that, by finding him in contempt for doing so, the court abused its discretion. A court

abuses its discretion only where its ruling is unreasonable. See, e.g., In re B.S., 2022 IL App (2d)

220271, ¶ 32. As noted, Vargason raises five overarching reasons that he believes the court’s

contempt finding was an abuse of discretion, yet we find none of those reasons render the contempt

finding unreasonable.

¶ 39 First, Vargason asserts that he was merely trying to reopen a case of which he had no notice,

and which had resulted in substantial personal liability. He explains that he was “scared to death”

when he received the decision, finding himself and the dealership liable for around $711,000 in

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unpaid wages, and he notes that, under the Act, an officer of an employer is deemed to be an

“employer” and personally liable for unpaid wages. See, e.g., 820 ILCS 115/13 (West 2020).

In addition, he contends that he has a potential defense to the wage claim, as Vite may not seek

double recovery in two jurisdictions. Vargason argues that there is no evidence in the record that

he was trying to embarrass, hinder, or obstruct the circuit court, he was simply doing the best he

could under the circumstances, requested only that he be afforded an opportunity to appear at a

hearing, and “while perhaps inartful by mentioning ‘the company,’ [the motion to reconsider] was

sent on his own behalf in an effort to protect himself from that liability.” Indeed, he represents

that the fact that the dealership was mentioned in the letter “was superfluous or de minimus at

best.”

¶ 40 We reject Vargason’s characterization of his actions, as they ignore the context preceding

them, as well as minimize the representations he made in the motion and the avenues by which he

transmitted it. As the trial court noted, Vargason was not an innocent “babe in the woods;” he

had already been found in contempt for actions representing the dealership and those actions

precipitated the court’s receivership appointment and a stay of arbitration proceedings. The trial

court was not unreasonable in finding that Vargason’s motion to reconsider did not simply

“inartfully” mention the company. Indeed, in his motion, Vargason repeatedly used the pronoun

“we,” and not only referenced the company three times, he also expressly represented that he

“always [is] available to defend the company” and requested an opportunity to appear and “defend

our company position.” Moreover, Vargason used two email addresses to send the motion to the

Department: a personal Gmail account and one designed to appear linked to the dealership that

would, as the trial court reasonably found, suggest to any objective observer that Vargason

remained in a position with the dealership with authority to speak on its behalf.

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¶ 41 Although the receivership order made clear that Vargason retained the right to defend

himself personally, the court’s finding that the motion to reconsider did not convey that desire is

supported by the record. As such, the court’s finding that Vargason’s actions served to disobey

and thwart the receivership order’s provisions that he not act as an employee or agent, or attempt

to exercise any control over the dealership, or hinder, interfere with, obstruct, or frustrate the

receiver in carrying out his powers and duties, was not unreasonable. We also note that we reject

Vargason’s contention that his actions only requested a hearing and expressed his availability to

defend the company, resulting in no prejudice to the receivership estate, whereas he agrees the

situation would be different if he had actually attempted to defend the dealership at a hearing on

the merits. In fact, the record reflects that, when he wrote the motion, Vargason did not yet know

the status of the receiver’s notice of or position on the wage claim and whether or not he had a

rationale for not defending it. Accordingly, the court reasonably found that, without first

contacting the receiver or even the court, Vargason simply stepped into the receiver’s shoes by

writing the Department and requesting an opportunity to appear at a hearing to defend the

company.

¶ 42 Second, and in relation to the last point above, Vargason argues that the motion to

reconsider did not hinder the receiver from exercising his duties, because the receiver had not

received notice of the wage claim, had consequently not appeared to defend the dealership, and,

when notified of the claim, represented that he had no intention of expending resources to do so.

Vargason asserts that the court never explained how his motion to reconsider, seeking only to

reopen the wage claim, affected the receiver’s ability to do his job, particularly given that the

receiver did nothing but “lay down.” Effectively, Vargason contends, the court has decided that,

even though the receiver will not defend the company, exposing Vargason to substantial personal

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liability, Vargason also cannot do so and will be found in contempt for trying. We disagree. In

sum, Vargason conflates two issues: his ability to represent and defend the company and his ability

represent himself personally. While the two may, on the merits, involve overlapping themes, the

receiver’s decision to not defend the wage claim, given insufficient funds in the estate to pay

superior claims and liens, is within his authority, not Vargason’s. Vargason’s motion to

reconsider, seeking a hearing to defend the company’s position, served to thwart the receiver’s

authority to make those discretionary decisions. The court was fully apprised of Vargason’s

position and arguments on this point and reasonably rejected them.

¶ 43 Third, Vargason asserts that the court abused its discretion, where it orally recognized the

problem Vargason had faced yet found him in contempt anyway. He notes that the court

recognized that Vargason had been found individually liable, but had no viable way of contesting

the individual liability without possibly presenting the defenses the receiver chose not to present

on the company’s behalf. Again, we disagree. There is nothing arbitrary about the court’s

recognition that, substantively, there would ultimately be a fine line between defenses that applied

to the dealership and to Vargason personally, but recognizing that the actions Vargason took and

the manner in which he took them willfully violated the court’s receivership order. As the court

noted, the fact that the issue was complicated and that there existed a court order prohibiting

Vargason from taking certain actions meant, if anything, Vargason could have sought guidance

from the receiver and/or the court, as opposed to simply acting independently. Vargason argues

that the court’s position that he should have asked for permission, rather than forgiveness, as he

had previously been found in contempt for violating the initial injunction, punishes Vargason for

prior conduct, rather than seeking to enforce compliance with the receivership order. Again, we

disagree. The relevance of the court’s position concerning asking permission and the prior

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contempt finding is not one contemplating additional punishment for past behavior but, rather, it

speaks to the context supporting the intent and willfulness of Vargason’s most recent behavior.

Vargason asserts that the court’s demand that he should have asked permission first was an unjust

condition, as he was “merely making an effort to afford everyone an opportunity to appear at a

hearing before substantial liability was imposed.” However, the court did not find credible

Vargason’s characterization of his actions and, given the context of past proceedings, as well as

the language of the motion itself, that finding was not unreasonable.

¶ 44 Fourth, Vargason argues that the court’s ruling precludes him from defending himself in

the wage claim. He notes that the receivership order expressly provided that the scope of the

receiver’s powers could not affect Vargason’s ability to defend himself, so the court’s contempt

ruling is arbitrary and an abuse of discretion because it effectively renders that provision of the

order meaningless. The court’s contempt order, Vargason argues, serves to “kneecap” his

defense to the wage claim by prohibiting him from even mentioning the company in his papers.

Once again, we disagree with Vargason’s characterization of the court’s contempt finding and his

motion to reconsider. The court’s order did not “kneecap” Vargason or render meaningless the

provision that Vargason could defend himself personally. Rather, the court found that

Vargason’s motion to reconsider went beyond defending himself personally, tried to represent the

dealership, and did not simply mention the company. The court’s findings were not

unreasonable, as Vargason did not, for example, ask the Department in the motion to appear to

defend himself personally; he only mentioned being available to represent and defend the

company. Vargason also contends that Vite sought to use the court’s contempt power to prevent

him from challenging Vite’s improper windfall in another forum by challenging “on the flimsiest

of bases” an inartfully-drafted motion and Vargason’s attempt to defend himself. Citing foreign

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authority, Vargason argues that this sort of “gotcha” use of contempt proceedings should be

rejected. As we disagree, once again, with Vargason’s characterization of the motion, we also

reject this argument. The court reasonably disagreed with Vargason’s argument that Vite was

simply trying to use contempt as a mechanism for preventing Vargason from appearing before the

Department.

¶ 45 Finally, Vargason contends that, with respect to his use of the email address

fred@nissanofstcharles.net, he could not have violated the receivership order, because it did not

explicitly prohibit his use of that email address. He asserts that the receivership order, while

prohibiting him from acting as an employee or agent of the receivership defendants, did not

prohibit him from any and all uses of the email address, nor require him to turn over all logins and

access to the email address or remove him as an “owner” of the business. Vargason notes that

the receivership order did not give the receiver power to control the use of email addresses used

by Vargason, and, “while it may have been theoretically possible to include the e-mail address

among the prohibitions imposed by the receivership order, that was not done.” As such,

Vargason contends that the court abused its discretion and used the contempt power to effectively

amend the receivership order to prohibit the use of the email address and applied that amendment

retroactively.

¶ 46 Frankly, this argument is reminiscent of a child protesting punishment for pushing a sibling

because the parent only expressly prohibited hitting. It is true the receivership order did not

explicitly list every conceivable action that Vargason could possibly take which would violate the

order, but use of an email address (designed, we note, to appear almost identical to his former

dealership email address) for official correspondence in an attempt to represent and defend the

company would reasonably be encompassed within the scope of the order’s prohibition that he

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“immediately cease acting as an employee or agent of the Receivership Defendants, including as

a shareholder, member, owner, director, managing member, officer, [‘]independent contractor[’],

other employee or agent of any and all of the Receivership Defendants.” We simply cannot

deem unreasonable the court’s finding that use of the email address would suggest to an objective

party that Vargason had some authority, whether in a capacity as employee, agent, or otherwise,

to act on the dealership’s behalf. Further, the court did not amend the receivership order to

prohibit the use of the email address and apply the amendment retroactively. Rather, the court

found contempt based upon Vargason’s actions in their entirety, and the court’s specifications

enjoining Vargason’s future use of the email address and requiring that he turn over login

information were simply conditions of the purge.

¶ 47 C. Purge Order

¶ 48 Next, Vargason argues that the court’s purge order exceeded the underlying order and,

thus, is improper. Specifically, he asserts that the order to purge the motion to reconsider was

too broad, as it encompassed his actions to defend himself personally. In addition, Vargason

asserts that the purge concerning the email address is beyond the scope of the original contempt

proceeding. For the following reasons, we disagree.

¶ 49 First, Vargason asserts that the court ordered him to send a letter informing the ALJ that

he lacked authority to send the motion-to-reconsider letter, and the written order also required that

he state in the letter that he was “without authority to send the [m]otion for [r]econsideration on

December 6, 2021.” Vargason contends that this language was too broad, as he retained the

authority to send the motion on his own behalf. He asks that, if we affirm the contempt finding,

we modify the purge to provide that the letter he writes state only that he was without authority to

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send the motion to reconsider on the dealership’s behalf. We decline Vargason’s invitation to

modify the purge order.

¶ 50 It is undisputed that, under the receivership order, Vargason retained authority to defend

himself personally, but not the dealership. The record reflects the trial court was perfectly aware

of this distinction. However, the issue is not whether Vargason had authority to send a motion

to reconsider on his own behalf. The issue is whether he had authority to send the motion to

reconsider that he actually sent on “December 6, 2021.” That specific motion to reconsider did

not express that Vargason wished to appear and defend himself personally; it expressed only a

desire to appear and defend the company. Accordingly, we decline to order a modification of the

purge.

¶ 51 Next, Vargason argues that the court also went beyond the receivership order when it

instructed Vargason that, if he altered, deleted, or modified anything in the email account, he would

“go to jail.” According to Vargason, this transformed the proceeding into a discovery proceeding

and put him in a position to possibly be sent to jail without due process if Vite believed that

Vargason deleted anything. He notes that this very nearly happened on April 8, 2022, when,

despite Vite’s recognition that Vargason sent the required letter to the Department and had given

access to the email account, he accused Vargason of making changes to the account. Vargason

asserts that the purge prohibiting him from altering the account or deleting anything “made

assumptions” about him that were not alleged in the petition nor presented in the hearing.

Vargason notes that, once a purge has been accomplished, the contempt must cease. Here, he

argues, there has been a “Sword of Damocles” hanging over his head for six months, without any

ability to be heard if Vite or the receiver think Vargason “has not done enough.” He concludes

that, while Vite can file new, appropriate petitions, he should not be able to “hitch a ride” on the

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April 1, 2022, order. He suggests that, to the extent the April 1, 2022, order authorizes the

contempt to continue after the purge has been accomplished, it should be reversed or “limited to

requiring Vargason to provide the login and access information for the email address.” We again

disagree.

¶ 52 Preliminarily, Vargason complains about actions that occurred after the April 1, 2022,

contempt order issued, which are not encompassed within his notice of appeal and are not proper

for our consideration here. We note, however, that, to the extent he raises concerns about due

process and the need for Vite to file an appropriate motion for future relief and not “hitch a ride”

on the April 1 order, the very hearing Vargason references on April 8, 2022, apparently came

before the court on a new petition for rule to show cause.

¶ 53 We also disagree with the suggestion that the court could only order Vargason to turn over

login credentials for the account, but not order him to refrain from modifying it. The court simply

ordered the account be preserved, and the record of Vargason’s overall conduct in these

proceedings belies his contention that there was no basis for the court to order anything more than

a turnover of login information. The court’s comments reflect it has found Vargason’s actions

can be “fast and loose,” and it did not find credible his explanations for his conduct. Vargason

correctly notes that a contempt ends when a purge is accomplished, but the purge here reasonably

required that he both turnover the account and not alter it. In sum, the court’s order was not

overbroad or an abuse of discretion and we will not modify it.

¶ 54 III. CONCLUSION

¶ 55 For the reasons stated, we affirm the judgment of the circuit court of Kane County.

¶ 56 Affirmed.

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