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Stavros v. Karkomi

JULY 25, 1973.




APPEAL from the Circuit Court of Cook County; the Hon. NATHAN M. COHEN, Judge, presiding.


Rehearing denied September 11, 1973.

The plaintiffs filed a complaint on December 7, 1970, against the defendants for injunctive and other relief arising from a real estate contract. Briefly the complaint charged that plaintiffs, August A. Stavros, James Stavros and Naurice M. Nesset, were the owners of the entire beneficial interest in certain land trusts, located mostly in Cook County and partially in Lake County, of which plaintiff, Wheeling Bank & Trust Co. is trustee. The complaint alleged that plaintiffs entered into an amended real estate contract for the purchase of the real estate with defendant, Zev Karkomi on October 8, 1969. Plaintiffs averred that they had fully performed all the conditions under the contract, but that defendant Karkomi had failed to make timely payments. Notice of forfeiture had been served on Karkomi pursuant to the terms of the amended contract. Since a deed to a parcel had already been placed in escrow, the Chicago Title & Trust Company was also made a defendant.

Plaintiffs prayed that (1) an injunction issue against the Title Company to prevent it from delivering to Karkomi or any other person a deed to the property held in escrow and to prevent the Company from transferring or returning to Karkomi any of the items deposited with it, and (2) an injunction issue to order Karkomi to execute a quit claim deed reconveying certain property to plaintiffs and to pay $100,000 as recompense to plaintiffs for said contract having been declared null and void by reason of defendant's material breach of the contract. To this complaint Karkomi filed a motion to strike on January 18, 1971.

Thereafter on April 14, 1971, the parties entered into a written stipulation which recited that the matter be settled in accordance with an agreed draft order to be submitted to the court for entry pursuant to the stipulation and approval of all parties. The stipulation further recited that the settlement would be null and void unless the court signed and entered the draft order exactly as in the form attached with only those changes made in ink on its face and initialed as approved by all parties. All of the parties signed the stipulation and presented it to the court for its approval on May 14, 1971.

An order was entered by Judge Nathan M. Cohen on May 14, 1971, which recited that "this matter having come on upon stipulation of the parties hereto; and the Court having considered said Stipulation and the file herein, and being duly advised in the premises," the court found and concluded that it had jurisdiction of the parties and of the subject matter, which was an amended contract executed by them on October 8, 1969, a copy of which was attached to the complaint. The order recited further that "in order to settle the issue of whether strict forfeiture should be enforced against defendant-purchaser, the parties have arrived at an agreement" and "the Court finds the said settlement terms are just, fair, reasonable and equitable and should be approved and embodied in a decree of this Court."

It was ordered and decreed that the defendant make certain payments and do certain other acts, and the dates for defendant to make principal payments were extended. Provisions were made in the event defendant purchaser was in default and the court reserved jurisdiction "only for the purpose of carrying out the provisions of this final Order." Below the signature of the judge there appears the following notation:

"Dated: May 14, 1971

The contents and form of this Order are agreed to and approved by the parties hereto and through their respective counsel."

Below this were the signatures of the respective attorneys.

On June 8, 1971, plaintiffs served notice that they would present to the court on June 14, a motion for the entry of a rule to show cause why defendant Karkomi should not be held in contempt of court for failure to comply with the decree entered on May 14, 1971, and for forfeiture of defendant's interest in and to the real estate involved.

• 1 On June 14, Karkomi moved for a continuance until June 30, but he was ordered to file his answer to the rule to show cause by June 19 and the hearing on said motion for a rule to show cause was set for June 21. On the latter date Karkomi asked leave to file a petition to vacate the consent decree of May 14. We note that the petition to vacate the May 14 decree, which by its terms was a final decree, was filed more than 30 days after the entry thereof. It could be considered as having been brought under Section 72 although no request was made in this regard. Attached to the petition to vacate was an affidavit of Ben J. Rosenthal, defendant's attorney, requesting a continuance to "a date subsequent to July 5", for a hearing on the motion for a rule to show cause. The Court, however, set the hearing on the rule to show cause for June 30 and Karkomi was ordered to be present at that time. The trial court also set June 30 as the date for a hearing on the entry of an appearance by attorney Arnold I. Kramer as co-counsel for Karkomi.

On June 30, counsel for plaintiffs informed the court that Karkomi had not complied with the consent decree and was merely trying to delay any hearing on the matter. Mr. Kramer presented a letter from Dr. Sheldon H. Steiner, setting forth that Karkomi's attorney, Ben Rosenthal, was in the hospital for heart surgery. When the judge inquired of Karkomi whether Kramer was representing him, Karkomi replied that he authorized Kramer to appear only for the purpose of obtaining a continuance until Rosenthal recovered, but not to appear as his attorney. The court then instructed plaintiffs' counsel to prepare a decree reciting that Karkomi was to execute documents in accordance with the decree within five days and upon failure to do so the Sheriff of Cook County would be directed to execute the documents in his stead.

Thereupon Kramer informed the court that Rosenthal had requested that he prepare a petition for a change of venue. Kramer presented the petition, which alleged that the trial judge was prejudiced against him and that this prejudice had first come to his attention on June 29, 1971, whereupon the court denied the change of venue. The judge indicated that he was going to set a date for a hearing on the rule to show cause because Karkomi had defied without just cause, as far as he knew, the orders entered by him, and he asked Kramer to suggest a date when he or Rosenthal would be ready to show why Karkomi should not be held in contempt of court. When Kramer asked what disposition the court had made of the petition to vacate the order of May 14, the judge replied that it was denied, and commented, "you have nothing before me today, I have refused to grant a continuance. If you are ready to proceed on that ...

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