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Bangaly v. Bagianni

Court of Appeals of Illinois, First District, Fifth Division

June 23, 2017

SYLLA BANGALY, Administrator of the Estate of Hawa Sissoko, Deceased, Plaintiff,
ALFRED C. BAGIANNI, Individually and as Agent and Employee of Roadway Express, Inc., a Delaware Corporation; ROADWAY EXPRESS, INC., a Delaware Corporation, n/k/a YRC, a Wholly Owned Subsidiary of YRC Worldwide, Inc., a Delaware Corporation; and YRC WORLDWIDE, INC., a Delaware Corporation, Defendants Bangaly Sylla, Contemnor-Appellant.

         Appeal from the Circuit Court of Cook County. No. 13 MC1 600168 The Honorable Daniel J. Lynch, Judge Presiding.

          PRESIDING JUSTICE GORDON delivered the judgment of the court, with opinion. Justices Hall and Reyes concurred in the judgment and opinion.



         ¶ 1 The instant appeal concerns a criminal contempt finding arising out of wrongful death litigation in which the contemnor, Bangaly Sylla, [1] was involved as the administrator of the decedent's estate. In connection with that case, Sylla, as administrator of decedent Hawa Sissoko's estate, filed an affidavit of heirship averring that Sissoko had never been married and also submitted answers to interrogatories stating the same. However, shortly before trial, the defendants in that action discovered that Sissoko may have, in fact, been married to a New York cabdriver named Noumouke Keita. After an investigation by the counsel for the estate, a divorce decree was provided that purported to establish that Sissoko was not married at the time of her death. The defendants' request to postpone the trial date to conduct further discovery was denied, and a jury found the defendants liable for Sissoko's death and awarded $4.25 million to Sissoko's estate, which consisted of her parents and siblings as her heirs. The trial court then permitted postjudgment discovery in order to determine Sissoko's proper heirs. After a year of postjudgment proceedings, including a motion to intervene in the case filed by Keita, the trial court found that Sissoko had been married to Keita at the time of her death and vacated the judgment.

         ¶ 2 The trial court ordered the law firm representing the defendants to initiate indirect criminal contempt proceedings against Sylla based on his statements concerning Sissoko's marital status. The firm was removed after Sylla objected to the firm's appointment, claiming a conflict of interest. Thereafter, the State's Attorney's office was appointed to prosecute the contempt. After the State's Attorney's office investigated the matter, it ultimately declined to prosecute due to the belief that there was an inability to prove the charges. The trial court appointed a third prosecutor, who proceeded with the contempt process and took the case to trial. After a jury trial, the jury found Sylla to be in indirect criminal contempt. After hearing factors in aggravation and mitigation, the trial court sentenced him to six years in the Illinois Department of Corrections (IDOC). On appeal, Sylla raises a number of issues concerning the propriety of the indirect criminal contempt proceedings. We find that the trial court erred in denying Sylla's motion for substitution of judge and, accordingly, reverse and remand for a new trial before a different trial judge.

         ¶ 3 BACKGROUND

         ¶ 4 I. Wrongful Death Lawsuit

         ¶ 5 The facts of the underlying wrongful death litigation which gave rise to the instant criminal contempt were exhaustively discussed by this court in our prior opinion on this matter, Bangaly v. Baggiani, 2014 IL App (1st) 123760. We briefly summarize those proceedings to give context to the contempt proceedings at issue in the instant case, taking all facts from our prior opinion.

         ¶ 6 On May 30, 2007, Sissoko was killed when a commercial tractor trailer truck struck her on I-80/90 near Chesterton, Indiana, while Sissoko was standing in the rightmost eastbound lane of the highway, crushing Sissoko between her vehicle and the tractor trailer. On November 21, 2007, Sylla, Sissoko's paternal uncle, executed an affidavit of heirship, which averred that Sissoko's parents were both still living and that Sissoko had eight siblings. The affidavit of heirship further stated: "HAWA SISSOKO was never married and never had nor adopted any children during her lifetime." On the same day, the probate division of the circuit court of Cook County entered an order declaring that Sissoko's parents and siblings "are the only heirs of the decedent." On December 12, 2007, Sylla was appointed independent administrator of Sissoko's estate.

         ¶ 7 On March 3, 2009, Sylla, in his capacity as administrator of Sissoko's estate, filed a wrongful death action in the circuit court of Cook County against the driver of the tractor trailer, his employer, and the employer's parent company. The complaint alleged that the driver's negligent operation of the tractor trailer caused Sissoko's death and further alleged "[t]hat HAWA SISSOKO left surviving her parents *** and her brothers and sisters[, ] *** all of whom are lawful heirs of the Estate of HAWA SISSOKO." On December 7, 2009, Sylla filed answers to written interrogatories propounded by the defendants. In response to the interrogatory, "If the deceased was married at the date of death, state the date and place of such marriage and the name and address of the spouse of deceased, " Sylla answered, "The Plaintiff's decedent was not married as of the date of her death." In response to the interrogatory, "If the deceased has previously been married, state the name(s) and last known address(es) of the former spouse(s), the date(s) of the marriage(s) and the date(s) of separation and/or divorce, " Sylla answered, "The Plaintiff's decedent had not been previously married before her death."

         ¶ 8 On October 31, 2011, approximately two weeks before the November 14, 2011, date scheduled for trial, the defendants filed an emergency motion to dismiss the complaint pursuant to section 2-619(a)(9) of the Code of Civil Procedure (735 ILCS 5/2-619(a)(9) (West 2010)) or to strike the trial date, claiming that Sissoko had, in fact been married to Noumouke Keita at the time of her death, based on a Malian marriage certificate discovered among Sissoko's personal belongings at the scene of the accident that had originally been mistranslated as a birth certificate. The trial court denied the motion to dismiss but struck the trial date.

         ¶ 9 On November 9, 2011, Sylla's counsel produced a purported divorce decree for Sissoko and Keita, dated November 17, 2005. The trial court denied the defendants' oral motion to take additional discovery as to the status of Sissoko's marriage. However, on January 13, 2012, the defendants filed an emergency motion to strike the trial date and for an evidentiary hearing, claiming that they had discovered that the divorce decree might be fraudulent and requesting additional time to investigate the issue. The motion to strike the trial date was denied, and a jury trial proceeded on January 17, 2012. On January 24, 2012, the jury returned a verdict in favor of Sissoko's estate and against the defendants, finding that the estate suffered $5 million in damages, which was reduced to $4.25 million due to Sissoko's contributory negligence. The trial court entered judgment on the verdict the same day.

         ¶ 10 On January 31, 2012, the defendants filed a motion for limited posttrial discovery on the issue of Sissoko's marriage. The trial court entered an order staying the execution of the judgment and granted the defendants' motion for posttrial discovery. During the course of posttrial discovery, the issue shifted from the validity of the divorce decree to the validity of the marriage itself, with Sylla taking the position that the marriage had never been validly entered into and, therefore, the divorce decree was irrelevant.

         ¶ 11 The parties engaged in extensive posttrial discovery on the issue of the validity of the marriage, including live in-court depositions of several witnesses-including Keita, Sylla, and several experts on Malian law[2]-and numerous affidavits from individuals in Mali. During the course of discovery, Keita sought to intervene in the action.

         ¶ 12 On December 13, 2012, the trial court found that Sissoko and Keita were validly married at the time of Sissoko's death and that, therefore, he was the sole heir of Sissoko, not her parents or siblings. The trial court also granted Keita's motion to intervene. On January 8, 2013, the defendants filed a motion to vacate the judgment and for dismissal of the case, arguing that the judgment must be vacated, since Sissoko's parents and siblings were not Sissoko's next of kin. Keita also filed a motion, asking for only the damages portion of the judgment to be dismissed and seeking leave to amend the complaint to add him as Sissoko's sole heir. On January 29, 2013, the trial court vacated the judgment as to both liability and damages and dismissed the lawsuit with prejudice.

         ¶ 13 On appeal, we affirmed the trial court's judgment in most respects, but found that Keita should have been permitted to amend the complaint to list him as the sole heir of Sissoko's estate. Bangaly, 2014 IL App (1st) 123760, ¶¶ 222, 223. After our opinion, Keita and the defendants settled his lawsuit.

         ¶ 14 II. Contempt Proceedings

         ¶ 15 While the appeals in the underlying litigation were pending, the defendants in that case filed a motion for sanctions against Sylla, Sissoko's parents, and the attorney representing the estate, claiming that "[t]he misconduct of the respondents caused the defendants and this Court to incur the expense of a trial based on perjury, forgery, fraud and a false premise which necessitated these [posttrial] proceedings to determine the truth of the heirship of the Estate of Hawa Sissoko." With respect to Sylla, the motion claimed that Sylla falsely filed an affidavit averring that Sissoko had never been married and, in pleadings and through discovery responses, falsely claimed that Sissoko was never married. The motion pointed to deposition testimony that it argued established that Sylla had attended the wedding between Sissoko and Keita and had met Keita several times, and also argued that Sylla was involved in procuring the fraudulent divorce decree. The motion also pointed to the trial court's findings that Sylla, Sissoko's parents, and Keita had perpetrated a fraud on the court.[3]

         ¶ 16 On August 21, 2013, the defendants, Sylla, and the attorney representing the estate came before the trial court for a hearing on the sanctions motion, where the court informed Sylla's counsel:

"I have some thoughts about how, in fact, the Court should address what it is that Mr. Sylla did or didn't do in the context of these proceedings overall, and so I'm not quite sure that I'm prepared to-to proceed on the sanctions request at this time. I-I have some other thoughts in mind about it. And I know that comes as a bit of a surprise for you, perhaps, but they're not civil in nature. And so we need to address that this morning. ***
And it's an Indirect Criminal Contempt Petition that's going to be drafted today. He'll be served with that today, and we need a Bond Hearing, so I have the Deputies here. He is not to leave the courthouse, not to leave the courtroom. There's a conference room for you to speak to him in.
It's my determination, certainly at this juncture, that, perhaps, that might be what the Court needs to do to render justice regarding your client, so…And we can have some discussions about the scope and the nature of that hearing; but at this point, all we need to do-And Mr. Montgomery [of Williams Montgomery and John (WMJ), the law firm representing the defendants in the wrongful death action, ] is here. I'm not going to get the State's Attorney's Office involved. That would be an utter waste of resources. Mr. Montgomery will, or his firm will, act as quote, unquote 'the prosecutor.' "

         The trial court then addressed Montgomery and informed him of the allegations that the contempt petition should include. On appeal, Sylla does not argue whether a court can conduct a bond hearing before the filing of a petition for contempt.

         ¶ 17 The court indicated to Sylla's counsel that "at this point, my inclination is that it's minor contempt; in other words, a maximum penalty would be six months in jail or less, less than six months; or a $500 fine. And it's separate and distinct, at this juncture at least, from the Sanction Petition. So those are the sort of things he should be told about."[4] Sylla's counsel clarified that the court would not be hearing argument on the sanctions motion with respect to Sylla that day, and the trial court further indicated that the sanctions motion would be entered and continued. The court provided counsel a copy of an affidavit of assets and liabilities form, stating that "this gives you some sort of things that are considered for paupers when they present Petitions. Those are similar things that are presented in criminal cases. You may be aware of that, but I'm not sure if you are. And I know this has been sprung on you, Counsel. I-I recognize that. So any other questions you might have, I'll be happy to assist you with them."

         ¶ 18 Sylla's counsel confirmed that "it has been sprung on me, Judge, " and noted that he had been prepared to argue about Sylla's knowledge but "if I'm understanding the Court, what you're saying is it's fait accompli. You've already reached a decision. We're going straight to a Bond Hearing." The court responded that "[a]ctually, this is the beginning of a process" and that the court would be willing to listen to any arguments during the contempt hearing itself, but that the bond hearing would occur that day. The court noted that "[t]he Court hasn't made its mind up at all. It's-It's just saying that it's appropriate for a Petition to be drafted and for your client to be given an opportunity to defend against it. The nature and scope of the hearing and what the Court needs or doesn't need, moving forward will be the subject of legal discussion between the attorneys and the Court[.]"

         ¶ 19 Later, after arguments on the sanctions motion with respect to the attorney representing the estate had concluded, Sylla's counsel asked to approach the court. Counsel asked:

"COUNSEL: Judge, you had foreshadowed a little bit that I was being surprised by the conduct and the action that the Court is taking in declining to hear any arguments on the substantive merits of the motion [for sanctions] and instead having Mr. Sylla apparently arrested, as I understand. And I guess I just ask for clarification from the Court. He is not free to leave?
THE COURT: Not free to leave.
COUNSEL: You found probable cause for his ...

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