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Pancotto v. Mayes

April 01, 1999

NICK PANCOTTO, INDIV., AND PARAMOUNT DEVELOPMENT CORPORATION, PLAINTIFFS AND COUNTERDEFENDANTS- APPELLEES
v.
ALLEN T. MAYES, DEFENDANT AND COUNTERPLAINTIFF (WILLIAM G. UELSMANN, DEFENDANT AND THIRD-PARTY PLAINTIFF AND CONTEMNOR-APPELLANT; P.C.H., LTD., THIRD-PARTY DEFENDANT).



Appeal from the Circuit Court of Du Page County. No. 94--MR--102 Honorable Richard A. Lucas, Judge, Presiding

The opinion of the court was delivered by: Justice McLAREN

IN THE COURT OF APPEALS OF THE STATE OF ILLINOIS

The contemnor, William G. Uelsmann, appeals from an order of the circuit court of Du Page County finding him in contempt of court for refusing to be sworn at a citation to discover assets proceeding. We vacate the trial court's order.

The contemnor raises 14 separate issues on appeal. However, the great majority of these issues are related to the arbitration proceedings, which are not before this court as a part of this appeal. The remaining issues concern the contemnor's claim that the trial court erred in finding him in criminal contempt of court without the required procedural safeguards.

On April 13, 1998, the contemnor appeared before Judge Richard Lucas on a continued citation to discover assets proceeding. The contemnor is an attorney but was represented by counsel at the hearing. When Judge Lucas requested that the contemnor raise his hand to take the oath, the contemnor moved that Judge Lucas recuse himself. Judge Lucas denied the motion and again requested that the contemnor raise his hand to be sworn. The following colloquy then occurred:

"MR. UELSMANN (the contemnor): I refuse to do, respectively [sic], sir. You and I are both attorneys. I honor this Court."

"THE COURT: Sir, do you want to raise your right hand --"

"MR. UELSMANN: Sir, I decline --"

"THE COURT: -- and take the oath? Do you decline to do so?"

"MR. UELSMANN: I decline to do so, sir."

"THE COURT: On what basis?"

"MR. UELSMANN: On the basis that you are asking me to provide information that is privileged without proper authority."

"THE COURT: Well, here is what we are going to do, Counsel. You have a court reporter here today. I want you to take the oath. And if you believe that there is some information in response to some question that is asked of counsel during the course of the citation, you certainly make a record of it and we will determine that, okay? Do you want to raise your right hand, please?"

The trial court allowed the contemnor to consult with his attorney. The trial court then advised the contemnor that, while he could make a record as to the questions that he believed would violate the attorney- client privilege, the citation would proceed. The following colloquy then occurred:

"MR. UELSMANN: Your Honor, I have listened to your comments this morning, and I have carefully considered them. I hear what I perceive to be ongoing prejudice in this matter. I ...


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