Court of Appeals of Illinois, First District, Third Division
from the Circuit Court of Cook County No. 14 L 5730 Honorable
Patrick J. Sherlock, Judge Presiding
PRESIDING JUSTICE ELLIS delivered the judgment of the court,
with opinion. Justices McBride and Cobbs concurred in the
judgment and opinion.
1 Pro Sapiens LLC sued Indeck Power Equipment Co. (Indeck)
for breach of contract, unjust enrichment, and a violation of
the Sales Representative Act, alleging that Indeck stiffed
Emmanuel Jacob, Pro Sapiens's salesman, out of a
commission from the sale of two Indeck boilers to
Venezuela's state-owned oil and gas company. During
discovery, Indeck learned that Jacob lied in discovery and
destroyed evidence-specifically, three years' worth of
emails from his personal Yahoo email account. From there the
case went off the rails for Pro Sapiens: The court dismissed
its case with prejudice pursuant to Illinois Supreme Court
Rule 219 (eff. July 1, 2002) and, to boot, imposed monetary
sanctions against both Pro Sapiens and Jacob personally.
2 Jacob filed a pro se notice of appeal for himself
and Pro Sapiens. But Jacob is not a lawyer, so the notice of
appeal was defective as to Pro Sapiens. On Indeck's
motion, this court dismissed Pro Sapiens from this appeal for
failure to file a notice of appeal. So the only appellant
properly before us is Jacob.
3 Jacob raises several challenges to numerous orders the
circuit court entered, including an order granting Pro
Sapiens's first attorney leave to withdraw, the order
dismissing Pro Sapiens's suit as a discovery sanction,
and an order denying a motion to reconsider the dismissal.
But those claims belong to Pro Sapiens and only Pro Sapiens.
In the absence of an appeal by Pro Sapiens, we lack
jurisdiction to consider those claims. To that extent, we
must dismiss the appeal.
4 The imposition of sanctions against Jacob personally-the
one issue Jacob obviously may raise-is another
story. Because Jacob was never served with process sufficient
for the court to obtain personal jurisdiction over Jacob, the
order of sanctions against Jacob individually is void. We
vacate that order only as to Jacob personally and remand for
6 This case has an enormous record and convoluted procedural
background. We will make our best attempt at brevity,
sticking to only the necessary information to resolve this
7 I. General Background
8 The nonparty appellant, Emmanuel Jacob, is a resident of
Arizona. From 1994 to 2012, Jacob worked at Honeywell selling
control systems for oil refineries. From 2012 to 2015, Jacob
worked for a company called SPT Group, where he sold software
for the oil industry. In March 2015, SPT laid off Jacob.
Thereafter, Jacob began working full-time at Pro Sapiens.
9 Plaintiff Pro Sapiens is an Arizona limited liability
company which, according to Jacob, "sells equipment
solutions" to "various companies" in Latin
America. Pro Sapiens was formed by Jacob in 2008 and has two
employees, Jacob and his wife.
10 Defendant Indeck is an Illinois corporation based in
Wheeling. Indeck sells and rents boilers for industrial
applications, including, as relevant to this case, oil
11 Petroleos de Venezuela, S.A., (PDVSA), is Venezuela's
state-owned oil and natural gas company. Carlos Moreno and
Ciro Pena are former PDVSA employees.
12 In sum and substance, Jacob claimed that he brokered the
sale of two boilers on Indeck's behalf to PDVSA for a
PDVSA oil refinery, and that Indeck had agreed to pay Jacob a
commission of ten percent on the sale. Indeck denied that it
owed Jacob anything.
13 Multiple lawsuits followed, and in the third one-the one
before us-Indeck naturally sought to discover any
communications Jacob may have had with PDVSA, including
former employees Moreno and Pena, whom Jacob claimed were
instrumental in the transaction he allegedly brokered.
14 II. Motion for Rule 219 Sanctions
15 Again summarizing an extremely long journey: Indeck
ultimately came to the conclusion that Pro Sapiens and Jacob
had committed egregious discovery violations, including
deleting emails before a court-ordered forensic review of
Jacob's emails; lying in discovery about the existence of
such emails; and omitting the existence of a second email
16 On May 24, 2016, Indeck filed a motion for Rule 219
sanctions. In that motion, Indeck asked the court to dismiss
Pro Sapiens's lawsuit and impose monetary sanctions
against Pro Sapiens and Jacob, personally.
17 It is undisputed that the notice of this Rule 219 motion
was sent to counsel for the sole plaintiff in the case, Pro
Sapiens, and only to that attorney. No notice of motion or
subpoena was sent to Jacob in his personal capacity.
18 Counsel for Pro Sapiens requested additional time to brief
the sanctions issue and to introduce expert testimony on its
behalf to rebut the claims in Indeck's motion. But
neither Pro Sapiens or Jacob, individually, ever filed a
written response. Nor did counsel for Pro Sapiens (or Jacob
or any lawyer appearing on Jacob's behalf) appear at the
hearing on the motion on July 20, 2016. At the end of the
hearing, the court made the following ruling:
"I have had a chance to review the motion long ago as
well as in preparation for today's hearing, and I think I
conveyed a message to Pro Sapiens' counsel, Mr. Utreras,
that the motion or the motions raised serious issues that
needed a response; and indeed, I continued the trial date,
which I almost never do, because of the seriousness of the
issues that are raised in the motion.
*** No response was ever filed. So what I'm left with is
a series of unrebutted contentions about the destruction of
documents, about the destruction of e-mails, about the
failure to produce information that is highly relevant to the
case, a series of allegations, all supported by affidavit and
other forensic information, that Mr. Jacob took upon himself
after there was an order by this Court to not only preserve
information but also to produce information so that Indeck
could get to the bottom of Pro Sapiens' case but also so
that Pro Sapiens could get to the bottom of the defense being
set forth by Indeck Power in this case.
It's the Court's view that Mr. Jacob and Pro Sapiens
have violated the Court's order in such a gross way in
the destruction of documents that are related to this case
that the Court has no other recourse than to dismiss this
case as a sanction for the various discovery violations that
have taken place up through very shortly before the start of
the anticipated trial of this case. *** I've reviewed the
information that was deleted by Mr. Jacob, or at least that
was discovered as deleted by Mr. Jacob. There's just no
excuse for the activity that's gone on, and the Court can
only assume that the reason Mr. Utreras is not here today is
because he really has no response to the very, very serious
allegations that are being leveled against Mr. Jacob as it
relates to his obligations in this litigation.
So I will dismiss the case with prejudice as a result of the
discovery violations that the plaintiff has engaged in. I
will order sanctions both against Pro Sapiens, LLC, and Mr.
Jacob, including monetary sanctions in the award of
attorneys' fees that you will submit a petition for as
well as the expert costs that Indeck Power has incurred in
connection with this litigation."
19 On August 17, 2016, Indeck filed a petition for fees to be
awarded as a result of the Rule 219 monetary sanctions
against Pro Sapiens and Jacob, requesting $332,
338.92 in attorney fees, expert fees, and costs.
20 III. Motion for Rule 137 Sanctions
21 Right around this time, also in August 2016, Indeck filed
a motion for sanctions under Illinois Supreme Court Rule 137
against Pro Sapiens and its first lawyer on the case, Mr.
Landis. Although this Rule 137 motion is not before us on
appeal, it plays a small role in this story. The gist of that
motion was that this lawsuit was not filed in good faith in
the first instance, and thus Pro Sapiens and the attorney who
filed it, Mr. Landis, should be sanctioned. But unlike the
Rule 219 motion, which sought sanctions for all conduct
occurring after the discovery violations began, this motion
alleged that all attorney fees and costs should be
recoverable, from the outset of the case, because the case
was fraudulent from the start. And also unlike the Rule 219
motion, the Rule 137 motion was not directed at Jacob in his
22 IV. Further Proceedings on Rule 219 Motion
23 On August 22, 2016, Pro Sapiens (not Jacob individually)
filed a motion to vacate or reconsider the court's July
20 order that dismissed the case with prejudice and imposed
sanctions against Pro Sapiens and Jacob individually under
Rule 219. The motion to reconsider argued that Pro
Sapiens's failure to file a response or attend the July
20 hearing was attributable solely to its attorney, Utreras.
Utreras explained that around the time Indeck filed its Rule
219 motion, he was overburdened by other professional
obligations, as well as personal family difficulties, that
simply overwhelmed him. The motion argued that Pro
Sapiens's newly retained expert's conclusion would
demonstrate that Pro Sapiens was not guilty of flagrant
24 On October 26, 2016, the court denied Pro Sapiens's
motion to reconsider the Rule 219 sanctions. In its oral
pronouncement, the court explained:
"I don't think in my years as a judge I have ever
dismissed a case pursuant to 219 because I bend over
backwards in an effort to avoid doing that. And I think in
this case, I did do that. I struck a trial date. I never
strike trial dates.
I granted you relief in the form of having a second bite at
the apple, so to speak, when you said that you needed an
expert, even though you should have known that you needed an
expert in the first instance. Every opportunity was given to
you and to your client to come forth with some evidence that
the defendant's motion should be denied, and that
opportunity was not taken. So on July 20th, the case was
dismissed. This motion is no[w] the third bite at the apple.
I find no basis to vacate my prior ruling. I'm not going
to vacate my prior ruling, and I'm not going to
reconsider the order."
25 V. November 9, 2017 Hearing on Rule 137 Motion
26 The parties appeared for another hearing on November 9,
2017. Recall that the court's order imposing Rule 219
sanctions was entered in July 2016, so the parties were now
nearly a year and a half removed from that date. By the time
of this November 2017 hearing, the trial court had granted
the Rule 219 motion, dismissing the case and imposing
monetary sanctions, and it had denied a motion to reconsider
that ruling. But the court had yet to fix the amount of
monetary sanctions-the amount of attorney fees to which
Indeck would be entitled. And Indeck's separate Rule 137
motion for sanctions against Pro Sapiens and its first
attorney, Mr. Landis, was still pending.
27 At this November 2017 hearing, Jacob himself was present,
along with Pro Sapiens's counsel, Mr. Utreras. The trial
court told Jacob that it wanted to ensure that he understood
that Indeck's Rule 137 motion was seeking over $500, 000
in attorney fees, dating back to the beginning of the case,
and Pro Sapiens had yet to file a written ...