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Stavros v. Karkomi

MAY 14, 1975.




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


Rehearing denied June 9, 1975.

This appeal arises out of an action brought by plaintiffs-appellees, to enter a rule upon Arnold I. Kramer, respondent-appellant, to show cause why he should not be punished for failing and refusing to comply with a final injunctional order entered on July 20, 1971. In response to plaintiffs' motion for a rule, Kramer filed a special and limited appearance challenging the court's jurisdiction over his person. On May 7, 1974, the court entered an order denying Kramer's special appearance and enforcing the terms of the July 20, 1971 injunction. Kramer appeals solely from the order of May 7, 1974.

This is the second occasion on which matters concerning this case have been before us on appeal. In the first appeal, we affirmed the Circuit Court's order of July 20, 1971. (Stavros v. Karkomi, 14 Ill. App.3d 355.) While the record is set out somewhat fully in that opinion, we deem it necessary to reiterate many of the facts here.

The controversy arose out of a contract for the purchase of real estate between the owners, plaintiffs-appellees, and Zev Karkomi. The contract involved successive conveyances of various parcels and required that a deed to Parcel 6 be placed in escrow with the Chicago Title and Trust Company. With the exception of Parcel 4, Karkomi made no payments of either principal or interest under the contract, and accordingly, plaintiffs served notice of default on him. Thereafter, on December 7, 1970, suit was filed seeking a quit-claim deed to Parcel 6 and a permanent injunction "against defendant Karkomi, or any person acting on his behalf * * * or having notice of this law suit, from taking any action which involves any assertion of any claim in or to any part of the real estate covered by the Contract involved in this suit, except Parcel 4 thereof * * *." The complaint further sought $100,000, the amount deposited in escrow by defendant, as specific recompense to plaintiffs for purchaser's total breach of the contract.

On April 14, 1971, the parties entered into a written settlement agreement that culminated in the entry of a consent decree on May 14, 1971. In the decree the court reserved jurisdiction solely for the purpose of effectuating the provisions of its order. Immediately thereafter, Karkomi failed to comply with the decree. On June 14, 1971, plaintiffs moved for a rule to show cause why he should not be held in contempt of court and for the forfeiture of his interest in and to the real estate involved. On June 21, 1971, Arnold I. Kramer filed his appearance for defendant and presented a petition to vacate the May 14, 1971, decree on the ground of misrepresentations. Attached to the petition was the affidavit of Ben J. Rosenthal, attorney for Karkomi, setting forth that because of illness, he was unable to appear or file any pleadings. Therein, he also swore to Kramer's allegations of material misrepresentations. He further asserted that illness of Kramer's parents prevented Kramer from properly responding to plaintiffs' petition for a rule to show cause. Accordingly, the affidavit requested a short continuance of the matter. A hearing was set for June 30, 1971. Plaintiffs served a notice addressed to Arnold I. Kramer requesting that he bring to the hearing on his petition, all papers, documents, etc., relating to the alleged misrepresentations.

On June 30, 1971, Kramer presented a petition for a change of venue, and the cause was continued to July 8, 1971. On that day a hearing was held, and the court instructed plaintiffs to prepare a decree directing Karkomi to execute the terms of the consent decree and upon failure to do so, ordering the sheriff of Cook County to execute the documents in his stead. The court continued all matters to July 13, 1971. On that day, Ben J. Rosenthal filed a second affidavit, again reciting that because of illness he was unable to appear or file any pleadings. Therein he requested a continuance on the matter of defendant's petition for a change of venue, and reiterated the earlier allegations of material misrepresentations.

On July 20, 1971, a final injunction was entered specifically reciting that: (1) The court had examined the files and considered the evidence attached to the pleadings; (2) that plaintiffs made no misrepresentations of fact upon which defendant reasonably could have relied; (3) that Arnold I. Kramer was not only a co-venturer with Karkomi, but that Kramer also appeared as counsel for Karkomi and received all notices as participating counsel even though his written appearance was recently filed; (4) that the alleged basis for a change of venue was known, or should have been known, by Karkomi, his co-venturer or agents (including Arnold I. Kramer) long before the case was filed, the final consent order was entered, and plaintiffs' motion for a rule to show cause was filed; and (5) that for several weeks defendant had been in wilful default under the May 14 decree.

The court found no just reason to delay the enforcement of the decree and therefore ordered that: (1) Karkomi immediately execute written instructions to Chicago Title and Trust that the existing deed and mortgage to Parcel 6 be cancelled and that the $100,000 deposited in escrow be distributed to plaintiffs as restitution for the expenses and losses caused by them; (2) that Karkomi further execute and deliver to plaintiffs a quit-claim deed to all parcels except Parcel 4; and (3) that in the event Karkomi should fail to execute the specified documents within 5 days, the sheriff of Cook County was authorized and directed to execute and deliver the specified documents in the name of Karkomi.

On August 11, 1971, plaintiffs' petition for a rule to show cause came on for a hearing along with defendant's petitions for a change of venue and to vacate the consent decree of May 14, 1971. The trial judge repeatedly stated to defense counsel that he was willing to hear any evidence on the matter of alleged misrepresentations; however, Kramer presented no evidence in support of his motion to vacate. An order was entered on that day reciting that the court, having heard evidence, found that defendant's affidavit in support of his request for a change in venue was filed in bad faith and not true. The court found and adjudged the defendant to be in direct contempt and set a hearing for August 18, 1971. On that latter date, Rosenthal and Kramer filed an appeal on behalf of Karkomi seeking, in part, a reversal of the orders entered on July 20 and August 11 and in the alternative a new trial. The hearing on the rule to show cause was continued pending the disposition of the appeal.

Arnold I. Kramer represented Karkomi on appeal and contended that the court erroneously denied the petition for a change of venue. He argued that as a consequence, all subsequent orders were null and void. We handed down an opinion on July 25, 1973 (14 Ill. App.3d 355), and held that the petition for a change of venue was untimely filed. We pointed out that we did not reach defendant's argument that all subsequent orders were void since the court correctly denied a change of venue. Accordingly, we affirmed the final injunction of July 20, 1971.

During the pendency of the appeal, plaintiffs learned that the land may not have been subject to the sole direction of Karkomi. Although on appeal, the order of July 20, 1971, was not stayed, since the requisite bond was not filed. Therefore, on February 15, 1972, plaintiffs moved for a rule to show cause why Karkomi, Kramer and the Exchange National Bank (as trustee) should not be held in contempt of court for failing to comply with the order of July 20, 1971. Thereafter, a rule to show cause was entered and served on the named parties. Kramer immediately filed a special and limited appearance solely to contest the jurisdiction of the court over his person. After numerous continuances, the matter came upon the set call on plaintiffs' petition for a rule to show cause in connection with the July 20, 1971 order; and on May 22, 1972, the court ordered that the Exchange National Bank be enjoined from dealing in any way with Parcel 6, and that plaintiffs respond to Kramer's special appearance. On June 5, 1972, plaintiffs moved to strike Kramer's special appearance.

On March 8, 1974, plaintiffs further moved for a disposition of the cause pursuant to our mandate affirming the order of July 20, 1971. They asserted, in part, that Kramer previously had been found to be a co-venturer by the court, and that at all times from the inception of and during the negotiations for the purchase of the property, he was active as a party in interest and as an attorney in fact as well as attorney at law. Plaintiffs urged that any interest or claim Kramer may have had in the subject property was bound by the final adjudication of the July 20, 1971, order.

On March 14, 1974, Arnold I. Kramer was ordered to file a response and counter affidavits to plaintiffs' motion. Thereafter, on April 19, 1974, Kramer filed a memorandum in support of the special and limited appearance he had filed in his own behalf. He objected to the court's jurisdiction over his person and his property rights on the alleged basis ...

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