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Peo. Ex Rel. Fahner v. Col. City Lot Own.

OPINION FILED NOVEMBER 17, 1983.

THE PEOPLE EX REL. TYRONE C. FAHNER, ATTORNEY GENERAL OF ILLINOIS, PLAINTIFF-APPELLANT,

v.

COLORADO CITY LOT OWNERS AND TAXPAYERS ASSOCIATION ET AL., DEFENDANTS — (MARK P. BINSTEIN, DEFENDANT-APPELLEE).



Appeal from the Circuit Court of Cook County; the Hon. Richard L. Curry, Judge, presiding.

JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:

Rehearing denied December 22, 1983.

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. Binstein, in contempt. The Attorney General presents the following issues for review: (1) whether the trial court erred in modifying the terms of a pre-existing 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 Binstein 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 Binstein. The decree alleged that Binstein 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 Binstein made certain misrepresentations to the lot owners. Binstein 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. Binstein 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. Binstein asked that the Attorney General be restrained from refusing to enter into an assurance of voluntary compliance.

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

In May 1982, Binstein 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 Binstein should not be held in contempt of court. The petition alleged that Binstein violated the consent decree by the following acts:

(1) Binstein controlled the management of the Colorado City Lot Owners and Taxpayers Association.

(2) Binstein 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) Binstein tried to determine litigation strategy.

(4) In various letters Binstein or officers of the lot owners associations criticized Bowlus' handling of the Federal lawsuit, solicited money for another attorney, and solicited money for Binstein.

(5) Binstein 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 Binstein because of the latter's alleged violations of the consent decree. Binstein 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. BINSTEIN 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 ...


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