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People Ex Rel. Hartigan v. Org. Serv. Corp.

OPINION FILED SEPTEMBER 17, 1986.

THE PEOPLE EX REL. NEIL F. HARTIGAN, ATTORNEY GENERAL, PLAINTIFF-APPELLEE,

v.

ORGANIZATION SERVICES CORPORATION ET AL., DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Cook County; the Hon. Charles E. Freeman, Judge, presiding.

JUSTICE WHITE DELIVERED THE OPINION OF THE COURT:

Defendant David Zucker appeals from an order of the circuit court finding him in contempt of court and entering a default judgment against him.

The Attorney General brought this action against Organization Services Corporation, a dissolved Massachusetts corporation, OSC Corporation (OSC), and David Zucker, in his individual capacity and as president of OSC, alleging violations of the Illinois Charitable Solicitations Act (Ill. Rev. Stat. 1983, ch. 23, par. 5101 et seq.), the Business Corporation Act (Ill. Rev. Stat. 1983, ch. 32, par. 157.125), and the Assumed Business Name Act (Ill. Rev. Stat. 1983, ch. 96, pars. 4, 8). In addition, plaintiff filed a petition for a temporary restraining order and preliminary injunction.

On March 26, 1984, the circuit court entered a preliminary injunction against David Zucker and OSC, which prohibited any person acting on their behalf from soliciting funds for charitable purposes within the State of Illinois. It barred them, their agents, employees, assigns, servants and anyone acting in concert or participation with them from removing from Illinois any assets collected by means of charitable solicitations. The injunction further required Zucker and OSC to turn over all books, records and relevant materials located in Illinois.

On September 7, 1984, plaintiff filed a petition for a rule to show cause why David Zucker and OSC should not be held in contempt for failure to turn over books, records and materials in violation of the preliminary injunction. On November 13, 1984, plaintiff filed an amended petition that specified which materials were withheld. On November 28, 1984, plaintiff filed a second petition for a rule to show cause why Zucker and OSC should not be held in contempt which alleged that they had continued to solicit funds from the Chicago office. After several continuances, initiated by both parties, the court scheduled hearings on the amended and second petitions for June 20, 1985, and ordered the parties to have witnesses present and ready to testify.

On June 17, 1985, three days before the scheduled hearing, plaintiff served David Zucker with a notice for appearance at trial. Two days later, Zucker moved to strike the notice. Zucker's counsel pointed out that the notice had been served only a short time before the hearing, and stated that he had not been able to contact Zucker. The court denied the motion to strike, and the case proceeded to hearing on June 20, 1985. On that date plaintiff presented evidence which showed that suite 301 at 109 North Dearborn, Chicago, was leased by Vanguard Publishing Corporation.

Robert Jones testified that in October and November of 1984 he worked out of suite 301 when he was employed by Troopers Benefit Association. He was a telephone solicitor who sold advertisement space in the Troopers Benefit Association's magazine. According to Jones, the advertisement revenues were received at the Dearborn Street office and were sent to Boston. Jones' direct supervisor was David Wilburn, who, in turn, reported to Ed Tabichini.

Ed Tabichini testified that he worked for OSC Corporation from June 1982 until January 1985, first as a sales manager and later as regional manager. During the summer and fall of 1984, Tabichini visited OSC's offices in Belleville and on Dearborn Street in Chicago. Tabichini further testified that he knew that advertisements were being solicited from the Chicago office on behalf of the Troopers Benefit Association for a magazine called "The Illinois Trooper."

Tom Stavropoulos, an accounting clerk in the Illinois Attorney General's office, testified that on August 29, 1984, he visited the Dearborn Street office. Stavropoulos further testified that he had seen a "Trooper" logo on the premises.

Plaintiff introduced the articles of incorporation of Vanguard Publishing Company issued by the State of Virginia which showed David Zucker to be the company's sole shareholder. Zucker and OSC objected because plaintiff earlier had failed to produce the articles in response to their discovery request. The circuit court overruled the objection on the ground that the articles were in their control.

Zucker and OSC raised hearsay objections to the introduction of Robert Jones's testimony concerning the written guidelines, index cards and sales-lead cards he used in soliciting customers, and to Tom Stavropoulos's observation that he had seen a "Trooper" logo in the Dearborn Street office. The court overruled the objections.

Plaintiff rested its case. Plaintiff then reminded the court that Zucker's notice to appear was outstanding and then called for Zucker as a witness. Zucker's counsel objected on the ground that plaintiff had rested. Since a notice for his appearance at trial had been served on Zucker and he was not present, plaintiff moved for sanctions, requesting the court to strike Zucker's responses to the petitions and to find him in default. Zucker's counsel objected, asserting that Zucker had obtained other counsel in Boston who could not be present because he had received such short notice. Zucker further objected to the severity of the sanction.

Hearing on plaintiff's motion for sanctions resumed on June 28. David Zucker did not appear. The court struck Zucker's answer to plaintiff's second amended petition for a rule and found him in default. On July 5, 1985, the court entered an order of contempt against Zucker. It found that he had continued to solicit funds in Illinois in violation of the preliminary injunction, and entered an order fining him $500 and sentencing him to six months' incarceration. The court denied both petitions as to OSC and denied the amended petition as to Zucker. On July 15, 1985, the court entered an order of commitment against Zucker.

On appeal, David Zucker claims that the trial court erred in entering an order of contempt and default judgment against him, and challenges the admissibility of evidence ...


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