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11/21/97 ALBERT E. BERG AND A.E. BERG CO. v. MID

November 21, 1997

ALBERT E. BERG AND A.E. BERG CO., PLAINTIFFS-APPELLANTS,
v.
MID AMERICA INDUSTRIAL, INC., AND RICHARD Z. PIERCE, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County. Honorable Edwin Richardson, Judge Presiding.

Released for Publication January 22, 1998.

Presiding Justice Hartman delivered the opinion of the court. Hoffman and Hourihane, JJ., concur.

The opinion of the court was delivered by: Hartman

PRESIDING JUSTICE HARTMAN delivered the opinion of the court:

Plaintiffs, Albert E. Berg (Berg) and A.E. Berg Co. (Berg Co.), appeal the circuit court's denial of their motion to vacate its order dismissing with prejudice their two-count complaint and causes of action. They raise as issues for review whether (1) defendants' motion to dismiss was properly before the court; (2) the dismissal was an appropriate sanction and required a hearing before it was entered; and (3) the complaint filed by a layperson on his own behalf and on behalf of a corporation was a nullity.

On October 19, 1995, Berg, individually and on behalf of his corporation, Berg Co., filed a two-count complaint against Mid-America Industrial, Inc. (Mid-Am), and its president, Richard Z. Pierce (Pierce) individually. Count I sought $17,227 in salary and expenses allegedly owed to Berg individually by Mid-Am. Count II sought recovery of $15,000 allegedly owed to Berg Co. under equipment leases with Mid-Am. Two summonses appear in the record. Each contained Berg's typed name, address, and telephone numbers. Each left blank the line beginning with the printed words, "Attorney for." On the summons dated October 19, 1995, the line beginning with the legend "Atty No." was left blank. On the summons dated November 1, 1995, the numbers "08993," apparently assigned to an attorney who had done work for both parties, Edward A. Scott, was written in by hand. The identity of the person who wrote the numbers is not entirely clear, but is claimed by defendants to have been Berg himself. Berg is not and never has been a licensed attorney.

On November 9, 1995, Mid-Am and Pierce moved to dismiss the complaint because it was filed by a layperson. Under Illinois law, a corporation can file a complaint only through a licensed attorney; any action filed without an attorney is null and void ab initio. Housing Authority of Cook County v. Tonsul, 115 Ill. App. 3d 739, 450 N.E.2d 1248, 71 Ill. Dec. 369 (1983) (Housing Authority).

On December 14, 1995, Scott sought leave to appear on behalf of Berg and Berg Co. At the same hearing, Mid-Am and Pierce moved to disqualify Scott from representing plaintiffs in the proceedings. In support of the motion to disqualify, Pierce submitted a sworn affidavit that Scott represented defendants in three pending legal matters, and knew of confidential information and the financial situation of the company. In response, Scott averred that he worked for defendant on only three occasions, never conferred personally with Pierce, and knew nothing of defendant's financial situation. In reply to Scott's response, Pierce submitted a supplemental certification, which is not included in the record, but is attached to defendants' brief. The certification further contradicts Scott's affidavit, claiming that Scott had worked on six cases for Mid-Am and had conferred personally with Pierce. The order entered on December 14, 1995 granted the parties time to respond to each other and set the matter for hearing on January 11, 1996. On January 11, 1996, the motion to disqualify was continued to February 23, 1996.

The next order appearing in the record reveals that on March 1, 1996, the circuit court granted defendants' motion to disqualify Scott from representing plaintiffs and set the case for a status hearing on April 12, 1996, the date on which the court heard the case for status. Scott was present in the courtroom. The court admonished Scott to refrain from any comment. No one else representing plaintiffs was then present. According to papers filed by defendants in the circuit court, made part of the record, "the court on its own motion asked if there is a motion to dismiss." Defendants then moved to dismiss, which the circuit court granted with prejudice.

On May 10, 1996, Alan L. Fulkerson moved for leave to appear on plaintiffs' behalf, and to vacate the dismissal order of April 12, arguing that plaintiffs never had notice of the April 12 status hearing and that under Housing Authority, 115 Ill. App. 3d 739, 71 Ill. Dec. 369, 450 N.E.2d 1248 (1983), Count II was void ab initio.

On August 23, 1996, the circuit court denied the motion to vacate and again dismissed the case, this time sua sponte. In denying the motion to vacate, the court asserted that plaintiffs and Scott had "deliberate disregard of this court's authority * * *." In support of the court's August 23 sua sponte order dismissing plaintiff's complaint, the court cited Clymore v. Hayden, 278 Ill. App. 3d 862, 663 N.E.2d 755, 215 Ill. Dec. 512 (1996) for the proposition that a circuit court can dismiss an action as a sanction.

Plaintiffs appeal. We reverse and remand for reasons which follow.

I

Plaintiffs initially allege that the circuit court abused its discretion in denying their August 23, 1996 motion to vacate the ...


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