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10/24/94 FIDELITY FINANCIAL SERVICES v. JOSEPH

October 24, 1994

FIDELITY FINANCIAL SERVICES, INC., PLAINTIFF,
v.
JOSEPH HICKS, THELMA HICKS, AND UNKNOWN OWNERS, DEFENDANTS. JOSEPH HICKS AND THELMA HICKS, ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, COUNTERCLAIMANTS, V. FIDELITY FINANCIAL SERVICES, INC. AND ADMIRAL LIFE INSURANCE COMPANY, COUNTERDEFENDANTS AND CONSOLIDATED CASES. DANIEL A. EDELMAN, LAWRENCE WALNER, LAWRENCE WALNER & ASSOCIATES, LTD., APPELLANTS.



Appeal from the Circuit Court of Cook County. Honorable ALBERT GREEN Judge Presiding.

Released for Publication December 16, 1994.

O'connor, Campbell, Manning

The opinion of the court was delivered by: O'connor

JUSTICE O'CONNOR delivered the opinion of the court:

Appellants, Daniel A. Edelman, Lawrence Walner, and Lawrence Walner & Associates, Ltd. (collectively "Edelman"), attorneys for the defendants in the underlying litigation with plaintiff, Fidelity Financial Services, Inc. (Fidelity), appeal an order they contend found them in contempt of court for violating a non-disclosure clause in a settlement agreement. This court has entertained a prior appeal in the underlying litigation, (see Fidelity Financial Services, Inc. v. Hicks (1991), 214 Ill. App. 3d 398, 574 N.E.2d 15, 158 Ill. Dec. 221, appeal denied, 141 Ill. 2d 539, 580 N.E.2d 112) (Fidelity I), the facts and resolution of which are not germane to this appeal.

Subsequent to Fidelity I, the trial court approved a settlement agreement (the Agreement) between the parties to the underlying litigation in which the parties agreed to the certification of a class for resolution of their dispute. The Agreement included a non-disclosure clause which stated as follows:

"Each class member and class counsel fully agree, understand, and promise not to discuss with anyone, other than immediate family members, the terms of [this] Agreement or the existence of this Agreement. Each class member and class counsel agree further that it is a breach of this covenant to publicize any charge or claim of unlawful conduct by Fidelity or the existence or terms of the Agreement, except for Court-required notices. Each class member and class counsel further agree that the existence or terms of this Agreement or any charge or claim of alleged unlawful conduct by Fidelity will not be utilized or alleged in other litigation and that such use of the existence or terms of this Agreement or any charge or claim of unlawful conduct by Fidelity is a breach of this covenant and Agreement."

The Agreement was approved by the trial court, and the parties filed it with the court. Thereafter, Edelman, as counsel in another case, Hill v. Insured Financial Acceptance Corp., No. 89 CH 5958 (Circuit Court of Cook County), filed a motion for class certification which allegedly cited the Agreement in three places. These three citations were used to illustrate a single idea -- that Hill was similar to the Fidelity I litigation and thus, was appropriate for class certification. Edelman did not disclose the terms of the Agreement or any other information regarding this case beyond noting that it was a mortgage rate case that had been certified as a class action.

Fidelity sought a contempt citation against Edelman for breach of the non-disclosure clause. The trial court held a hearing on the matter and issued a ruling denying contempt relief, but finding that Edelman's citation of the Agreement was a "technical" violation of the Agreement's non-disclosure clause. Styling its order as a clarification of the Agreement, the trial court ruled that the bar of the non-disclosure clause included citation of the Agreement. The court ordered Edelman to strike all references to the Agreement in the Hill case and any other litigation. From this order, Edelman appeals.

Fidelity has filed a motion to dismiss this appeal contending we lack jurisdiction to review the order on appeal. Edelman identifies Supreme Court Rules 301 and 303, (134 Ill. 2d R. 301, R. 303), as the jurisdictional basis for the appeal. Edelman contends that he is appealing a final order in a contempt proceeding. Fidelity asserts that because the trial court denied its request for a contempt citation, there is no final and appealable order. Edelman counters that even if that is so, the order on appeal operates as an injunction such that it is appealable pursuant to Supreme Court Rule 307(a)(1). 134 Ill. 2d R. 307(a)(1).

A party is in contempt of court when he willfully violates an order of the court. ( In re Marriage of Hartian (1991), 222 Ill. App. 3d 566, 584 N.E.2d 245, 165 Ill. Dec. 66). Contempt is punishable by the imposition of a fine, imprisonment, or other sanction. ( UIDC Management Co. v. Pledge of Resistance (1988), 177 Ill. App. 3d 511, 513, 532 N.E.2d 253, 126 Ill. Dec. 568). A contempt order is interlocutory, and thus, non-appealable, unless the court imposes a sanction for any contemptuous act, in which case the contempt proceedings are viewed as a separate action, collateral to the primary proceedings. Bearden v. Hamby (1992), 240 Ill. App. 3d 779, 608 N.E.2d 282, 181 Ill. Dec. 209, appeal denied, (1993), 149 Ill. 2d 647, 612 N.E.2d 510; UIDC Management, 177 Ill. App. 3d at 513; In re Marriage of Buchmiller (1985), 135 Ill. App. 3d 182, 185, 481 N.E.2d 1077, 90 Ill. Dec. 277.

Here, the trial court's order plainly denies Fidelity's request for a contempt citation. Indeed, during the hearing on Fidelity's Rule to Show Cause, the trial court stated it found no intentional violation of the Agreement by Edelman. Even more plainly, the trial court's order imposes no sanction on Edelman for his "technical violation" of the Agreement. Rather, the order merely instructs Edelman to abide by the Agreement entered into by the parties. When an order accomplishes no more than implementing prior orders of the court, occasioning no new liability on the part of the alleged contemnor, the order does not "prejudice, disable, or penalize" so as to create a final, appealable order. ( Buchmiller, 135 Ill. App. 3d at 185). Thus, the order appealed in this case, even if characterized as a contempt citation, is a non-final one, not appealable under Rules 301 and 303.

However, Edelman asserts that because the trial court's order imposes a prior restraint on speech, it is, in effect, an injunction, appealable under supreme court Rule 307(a)(1). (134 Ill. 2d R. 307(a)(1). That rule, of course, permits appeals from orders granting injunctions.

Generally, an injunction is "a judicial process, by which a party is required to do a particular thing, or to refrain from doing a particular thing." ( In re A Minor (1989), 127 Ill. 2d 247, 261, 537 N.E.2d 292, 130 Ill. Dec. 225). Certainly, the trial court did not purport to enter an injunction in this case. Nor was it even requested to do so. The order stated that because Edelman's citation of the Agreement in other litigation violated the non-disclosure clause, Edelman was to discontinue such citation. Simply put, Edelman was to abide by the Agreement. This is not an injunction in the classic sense of the term because it appears to lack ...


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