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Skolnick v. Nudelman

APRIL 23, 1968.

SHERMAN H. SKOLNICK AND PETER S. SARELAS, PLAINTIFFS-APPELLANTS,

v.

OSCAR M. NUDELMAN, DEFENDANT-APPELLEE.



Appeal from Circuit Court of Cook County; the Hon. SAMUEL B. EPSTEIN, Judge, presiding. Orders and judgment affirmed.

MR. PRESIDING JUSTICE BURKE DELIVERED THE OPINION OF THE COURT.

This appeal is taken from the dismissal, on motion of defendant, of plaintiffs' third amended complaint.

Prior to October 1962, plaintiff Sherman Skolnick was represented by plaintiff attorney Peter Sarelas in three lawsuits, one in the Superior Court of Cook County and two in the United States District Court; it appears that one of the federal cases was dismissed by the court. On October 31, 1962, Skolnick wrote a letter addressed to defendant attorney "Oscar M. Nudelman, Decalogue Society, Chicago, Ill." The letter represented that Skolnick was referred to Nudelman by a third party, and requested Nudelman to read and consider four documents enclosed therewith consisting of Skolnick's complaint in a federal court action, the transcript of proceedings in that action, several pages from the defendant's "Memorandum in Reply to Plaintiff's Brief," and a letter from the Chairman of the United States House of Representatives Judiciary Committee concerning the federal court action. It further appears that Nudelman turned over the letter and the documents to attorney Harry G. Fins for the latter's consideration, and that both Nudelman and Fins had a conversation concerning the matter a few days later.

Plaintiffs filed their original complaint in this cause on December 13, 1963, naming both Nudelman and Fins as parties defendant. A motion filed by Fins for summary judgment as to the action against him was granted on June 16, 1964, and the judgment thereon was affirmed on appeal. See Skolnick v. Nudelman, 71 Ill. App.2d 424, 218 N.E.2d 775.

Plaintiffs subsequently filed an amended complaint against Nudelman, to which was filed a motion to strike and dismiss. The amended complaint was stricken in January 1965, and plaintiffs were given leave to file a second amended complaint which they filed later that month. Nudelman again filed a motion to strike the second amended complaint, among other relief requested, to which plaintiffs filed objections. An affidavit in support of his motion was also filed by Nudelman. A motion to strike the affidavit was filed by both plaintiffs, and Skolnick thereafter alone filed a counteraffidavit. Disposition of the matters filed in connection with the second amended complaint was assigned to Judge Samuel Epstein for hearing on June 15, 1965.

After several continuances were allowed with respect to the hearing, the cause was finally set for March 25, 1966. On March 21, 1966, plaintiffs filed a motion to disqualify Judge Epstein for the reason that he was financially interested in the outcome of the case. They alleged that the judge was a member of the Decalogue Society of Lawyers; that Nudelman "by and through his pleadings in the instant case, has involved and implicated the Decalogue Society" and "seeks to justify his intentional torts against these plaintiffs under the guise and mask of being a functionary of said Decalogue Society . . ."; that due to certain allegations made by Nudelman, the Decalogue Society "may become a necessary party-defendant in this case . . ."; that a jury decision favorable to the plaintiffs "may then become assessable against the said Judge . . . as a member of said Society . . ."; and that Judge Epstein "therefore has a pecuniary interest in this matter which disqualifies him from adjudicating the instant case."

Hearing on the motion to disqualify was had on March 23rd; the motion was denied. Also denied at the same hearing was a petition for change of venue presented by plaintiffs, without notice to the defendant, after the motion to disqualify was denied. The order of March 23rd recited:

"This cause coming on to be heard on plaintiff's motion for this Court to disqualify himself for reasons set out in said motion, and the Court having read said motion and heard arguments of counsel,

"IT IS HEREBY ORDERED that said motion be and the same is hereby denied.

"Upon denial of said motion, plaintiffs, without notice to opposing counsel, presented a petition for change of venue from this Court and from twenty-four other Judges thereof. Upon consideration of said motion, same having been presented without prior notice to opposing counsel, and being untimely, the said motion for change of venue is hereby denied."

Hearing on the defendant's motion to strike the second amended complaint was had on March 25th; the second amended complaint was stricken and dismissed and plaintiffs were given leave to file a third amended complaint.

Plaintiffs' third amended complaint, consisting of three counts, was filed on May 4, 1966. Count I alleged interference by Nudelman, and by Nudelman in combination with Harry G. Fins, with plaintiffs' attorney-client relationship; Count II alleged defamation of Sarelas' professional and personal character, and of Skolnick's character; and Count III alleged interference with plaintiffs' civil rights. Nudelman again filed a motion to strike the third amended complaint and the hearing was assigned to Judge Epstein. It does not appear that plaintiffs in any way objected to the assignment of Judge Epstein for disposition of the motion to strike the third amended complaint. After a hearing was had on November 14, 1966, the court denied plaintiffs' motion to strike defendant's motion to strike the complaint and overruled their objections filed thereto, allowed defendant's motion to strike the third amended complaint and dismissed the complaint on grounds of scurrility.

On December 13, 1966, both plaintiffs filed a motion for rehearing and reconsideration of the November 14th order dismissing the third amended complaint. Hearing thereon was set for January 17, 1967, at which hearing Skolnick failed to appear, and the December 13th motion was denied. A subsequent motion filed by Skolnick to vacate the January 17th order was also denied. This appeal followed.

Count I of the third amended complaint alleged that Nudelman interfered with the attorney-client relationship which existed between the plaintiffs prior thereto and further alleged a conspiracy between Nudelman and Fins to interfere with the relationship. Count I specifically alleged that "as a consequence of the malconduct and malevolent acts and doings of defendant Oscar M. Nudelman," Skolnick severed his contractual relationship with Sarelas in the case in the Superior Court of Cook County in April 1963, and in the two federal cases in July 1963, and that "because of the malconduct and malevolent acts and doings of . . . Nudelman," Skolnick was forced to represent himself after said dates as "a party-litigant pro se." Count I further alleged that the letter of October 31, 1962, from Skolnick to Nudelman, referred to above, was employed by Nudelman to "set in motion, or to trigger off, a natural conspiracy between the defendant Oscar M. Nudelman and Harry G. Fins, both of whom purport to be functionaries of the Decalogue Society of Lawyers"; that Nudelman in combination with Fins, "contrived and conspired to intermeddle and interfere" in the aforesaid litigation and to "use said letter as a part of a scheme to proceed, under the sham and pretense of being a functionary of some kind of the Decalogue Society of Lawyers, to commit champerty and (sic) maintenance and barratry"; and that in furtherance of said scheme "Nudelman, in combination with Harry G. Fins, used the malevolent and diabolical instruments of rumor-spreading and slander-mongering to undermine" Sarelas as Skolnick's attorney in the aforementioned litigation and the "instruments of threats, coercion, and terror-tactics directed in particular against . . . Skolnick, a paraplegic invalid and shut-in."

Count I also alleged that "in furtherance of said conspiracy and scheme, to terrorize and coerce . . . Skolnick to cause him to sever the contractual relationship with . . . Sarelas, and for the purpose of compelling . . . Skolnick to take on the services of . . . Nudelman and of . . . Fins, a self-declared expert on appeal work," Nudelman stated to Skolnick over the telephone, on the dates of December 12 and 13, 1962, and January 8, 1963, that Sarelas was a "regular nut," a "screwball," a "mishuginer," and a "one-man-office." It was alleged that Nudelman also stated to Skolnick that Sarelas could do no good for him, that "he has no backing. He's poorly financed and you're poorly financed"; that "you need somebody to help you"; and that "you've got good cases . . . Fins told me your lawyer Sarelas is simply not equipped to handle cases like yours" and "if you are going to fight bailiffs, you're not going to get anything. Fins could handle everything." It was further alleged that Nudelman stated during those telephone conversations that he helped to organize the Decalogue Society; that the Decalogue Society "is not what it used to be"; that "he knew the Decalogue has become a front for pounding heads together in order to make deals in litigation"; and that the "judges who belong to the Decalogue are not out to stir up trouble, they want to cover it up."

Count I also alleged that on July 10, 1963, Nudelman, "by and through Harry G. Fins, purposely and intentionally approached . . . Sarelas, and announced that he was making it his usual self-declared business to intermeddle and interfere, as a stranger," in Sarelas' lawsuits, including those wherein he was representing Skolnick, and that Nudelman and Fins were "interfering to help the opponents in said cases" against plaintiffs. Count I finally alleged that on April 24, 1964, Nudelman, through Fins, stated to Sarelas that he knew certain other litigant-opponents of Skolnick intended to appeal certain decisions; that this was intended by Nudelman to mean that he was "actively in contact with and assisting" Skolnick's said opponents, inasmuch as such information had not been published; and that all such "malconduct was to perpetuate and continue their intermeddling, interference, champerty and (sic) maintenance, and barratry." The count then restated that Nudelman's purpose in all the activities as alleged was to deprive Skolnick of the attorney of his own choosing by means of "rumor-spreading, slander-mongering, and other malevolent instruments directed against" Sarelas; that defendant owed a duty to plaintiffs "not to intentionally and maliciously interfere" with the contractual relationship of the plaintiffs and not to "engage in threats, ...


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