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03/23/95 MARRIAGE HORST ADLER v. JOSEPH M. GIAMPA

March 23, 1995

IN RE MARRIAGE OF HORST ADLER, PETITIONER-APPELLANT, AND BRIGITTA ADLER, RESPONDENT AND THIRD-PARTY PLAINTIFF-APPELLEE,
v.
JOSEPH M. GIAMPA AND JOE GIAMPA, INDIVIDUALLY AND D/B/A MAXIM PLUS REALTY, THIRD-PARTY DEFENDANTS-APPELLANTS.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE SHELDON GARDNER, JUDGE PRESIDING.

Presiding Justice Hoffman delivered the opinion of the court: Cahill and Theis, JJ., concur.

The opinion of the court was delivered by: Hoffman

PRESIDING JUSTICE HOFFMAN delivered the opinion of the court:

The petitioner, Horst Adler, and the third-party defendants, Joseph M. Giampa and Joe Giampa, filed the instant appeal seeking the reversal of an order of the circuit court which assessed $25,000 in sanctions against them pursuant to Supreme Court Rule 137 (134 Ill. 2d R. 137).

This action began on November 8, 1988, with the filing of a petition for dissolution of marriage. It proceeded rather unremarkably until June 1992 when the respondent, Brigitta Adler, filed a motion seeking a continuance of a scheduled trial date alleging that Horst Adler: (1) had dissipated in excess of $300,000 in marital assets; and (2) contrary to his discovery deposition testimony, owned an interest in the unimproved property commonly known as 511 Chicago Avenue in Lisle, Illinois (Lisle property).

Thereafter, Brigitta Adler filed an emergency petition for a temporary restraining order and preliminary injunction alleging that title to the Lisle property was held in trust with the Maywood Proviso State Bank under trust number 7938 (Maywood Proviso Trust) and that Horst Adler had transferred 50% of the beneficial interest in that trust to Joseph M. Giampa. Brigitta Adler requested that the Maywood Proviso Trust and Joseph M. Giampa be joined as third-party respondents and that they be enjoined from in any way transferring, pledging, or otherwise dealing with the beneficial interest of the trust pending further order of court. On August 7, 1992, the trial court entered an order granting the requested relief. The record reflects that the Maywood Proviso Trust was served on October 2, 1992, but Joseph M. Giampa was never served.

On November 4, 1992, the trial court entered a judgment dissolving the marriage of Horst and Brigitta Adler but reserved all other issue including property division for future determination. On the same day, in response to Brigitta Adler's emergency petition, the trial court also entered an order permitting Horst Adler to close on the sale of a parcel of real estate located at 10 West Bryn Mawr in Roselle, Illinois (Roselle property), but directing that the proceeds of that sale (Roselle proceeds) be placed in an interest-bearing escrow account pending further order of court. The sale of the Roselle property closed on November 4, 1992.

On November 5, 1992, Horst Adler filed a motion to vacate the order of November 4, 1992, alleging that he was indebted to Joseph M. Giampa for monies borrowed for the purchase and rehabilitation of the Roselle property and that a real estate commission in the sum of $6,000 was owed to Maxim Plus Realty (Maxim) as a consequence of the sale of the property. As to the sums owed to Joseph M. Giampa, Horst Adler alleged that the debt was evidenced by three promissory notes bearing interest at the rate of 20% per year having a cumulative balance of $66,170.31 with interest continuing to accrue at the rate of $29.61 per day. On November 6, 1992, the trial court entered an order joining Joseph Giampa as a party respondent, permitting the payment of certain sums from the Roselle proceeds but not the amounts allegedly owed to Joseph M. Giampa and Maxim, and ordering that the remaining Roselle proceeds be placed in escrow at the First National Bank of Chicago.

On November 17, 1992, the attorney representing Horst Adler filed a special appearance for both Joseph M. Giampa and Maxim. Along with their special appearance, Joseph M. Giampa and Maxim filed an emergency petition seeking an order upon the First National Bank of Chicago to pay from its escrow the sum of $6,000 to Maxim for its real estate commission and the sum of $66,170.31 to Joseph M. Giampa. On December 22, 1992, Joseph M. Giampa and Maxim filed a document entitled "Motion to Quash" wherein they requested the entry of an order: "Sustaining [their] * * * Special and Limited Appearance and their Emergency Petition to Release Real Estate Commission and Note Proceeds; * * * Ordering disbursement of the note proceeds and real estate commission from the escrow account established at the First National Bank of Chicago * * *; Awarding [them] * * * all costs, expenses and attorney's frees [sic] incurred * * *; and Granting Giampa such other and further relief as it deems just and equitable." On January 5, 1993, the trial court denied the "Motion to Quash."

It appears from the record that Joe Giampa, referred to in Brigitta Adler's pleadings as Joseph Giampa, did business under the name of Maxim and is the father of Joseph M. Giampa. Also, although not present in the record before this court, it is apparent that Brigitta Adler filed a petition seeking a declaratory judgment and other relief against Joseph M. Giampa and Joseph (Joe) Giampa because the record contains responses to such a petition filed on February 17, 1993, by Joseph M. Giampa and Joe Giampa, individually and d/b/a Maxim.

We find no need to recount the virtual torrent of petitions, counter-petitions, and motions filed by the parties to this action between June 1992 and September 1993 almost all of which were prefaced in their title with the word "Emergency." Suffice it to say that on October 1, 1993, the trial court entered an order providing for the distribution of various assets of the parties. Paragraph 11 of that order provides:

"11. That Horst Adler and the third party defendants actions were an attempt to defraud the court with respect to the Lisle property and the Roselle proceeds and respondent is granted leave to file her fee petition against Joseph M. Giampa and Joseph Giampa. Petitioner and respondent are granted 30 days to file fee petitions against each other."

On November 8, 1993, Brigitta Adler filed a petition seeking an award of attorney fees and costs from Horst Adler pursuant to section 508 of the Illinois Marriage and Dissolution of Marriage Act (the Act) (750 ILCS 5/508 (West 1992)), and for sanctions against Joseph M. Giampa, Joseph Giampa, and Horst Adler pursuant to Supreme Court Rule 137 (134 Ill. 2d R. 137). On November 18, 1993, Horst Adler filed a petition seeking an award of attorney fees and costs from Brigitta Adler pursuant to section 508 of the Act. On January 24, 1994, the appellants filed a joint response to Brigitta Adler's fee and sanction petition. On February 23, 1994, the trial court denied both requests for fees pursuant to section 508, but entered a judgment pursuant to Rule 137 in favor of Brigitta Adler's attorney in the sum of $25,000 jointly and severally against Horst Adler, Joseph M. Giampa, and Joseph Giampa. Horst Adler and the Giampas filed a motion to vacate the order of February 23, 1994, which was denied on March 24, 1994. This appeal followed.

In urging reversal of the judgment entered against them, the appellants argue that: (1) the trial court did not have personal jurisdiction over the Giampas; and (2) the trial court abused its discretion in entering any sanction pursuant to Rule 137 because (a) Brigitta Adler's petition upon which the sanction was based failed to specify any motion, pleading, or other paper which was not well grounded ...


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