Windy City Limousine Company, LLC v. Sal Milazzo
Windy City Limousine Company, LLC v. Sal Milazzo
Opinion
*745 ¶ 1 Windy City Limousine Company LLC and Windy City Limousine Manager LLC (collectively, Windy City) sued Sal Milazzo (Sal), Janet Milazzo (Janet) and their company, Signature Transportation Group LLC (Signature), based on the Milazzos' alleged misappropriation of Windy City's confidential information, which they then allegedly used to create Signature, a competing transportation company. During the course of litigation, the circuit court entered an agreed order between the parties that granted Windy City a temporary restraining order, barring the Milazzos from using, accessing, or distributing Windy City's confidential information. In the order, the Milazzos also made a representation about their prior conduct concerning Windy City's confidential information. Several months later, Windy City filed a petition seeking to hold both Milazzos in indirect criminal contempt for making a false representation in the temporary restraining order and violating the order itself. Windy City then dismissed Janet from the contempt proceedings but later reinstated her. Ultimately, on the Milazzos' motion, the circuit court dismissed the petition for failing to allege a violation of the temporary restraining order and denied Windy City's motion to reconsider.
¶ 2 In this appeal, Windy City contends that the circuit court erred when it dismissed its petition for indirect criminal contempt against the Milazzos and denied its motion to reconsider. For the reasons that follow, we affirm the court's rulings.
¶ 3 I. BACKGROUND
¶ 4 Since 2006, Windy City has operated a limousine and transportation company with a fleet of more than 200 vehicles primarily in the Chicagoland area. Windy City had employed the Milazzos, Sal as its vice president of sales and operations, and Janet as its controller. However, during a meeting on February 14, 2014, the Milazzos were fired.
*746 *475 ¶ 5 A. Underlying Litigation
¶ 6 In April 2014, Windy City filed a complaint against the Milazzos and Signature, alleging that, after Windy City fired the Milazzos, they misappropriated its confidential information and used the information to create Signature, a direct competitor.
¶ 7 The Milazzos and Signature filed an answer, admitting that, due to the Milazzos' former positions at Windy City, they had access to its confidential information. They also admitted that, during the morning of February 15, 2014, after they were fired, "Janet copied the data in her Outlook file at Windy City," but they could not determine the "exact contents of the file" at the time they filed the answer. The Milazzos also filed various counterclaims against Windy City, including breach of contract and retaliatory discharge.
¶ 8 Windy City subsequently filed an amended complaint, alleging that, after the Milazzos learned of their firing at the February 14, 2014, meeting and while the meeting was still ongoing, Sal left the room and called Ryan Kaszmarski, Windy City's information technology manager. Sal asked Kaszmarski to download all of his computer files, but Kaszmarski refused. Early the following morning, according to the complaint, the Milazzos accessed a plethora of Windy City's records, including financial information, customer information, employee information and marketing information. The complaint alleged that they did this by e-mailing three personal email addresses of Janet's from her Windy City e-mail address and each time including a link to a folder that contained Windy City's information.
¶ 9 The complaint asserted that the Milazzos used this information and unlawfully created their new company, Signature, to directly compete with Windy City. The complaint requested that the Milazzos and Signature be temporarily and permanently enjoined from competing with Windy City and using its confidential information. Windy City brought several counts against them including one based on a violation of the Illinois Trade Secrets Act ( 765 ILCS 1065/1 et seq. (West 2014) ), one based on tortious interference with existing and prospective contractual relations as well as one based on alleged conversion of company assets.
¶ 10 In the Milazzos' and Signature's answer, they again admitted that, during the morning of February 15, 2014, Janet copied data in her Outlook file at Windy City. They also stated again that they could not determine the contents of that file at the time.
¶ 11 Shortly thereafter, on May 16, 2014, the parties had a court appearance where their attorneys were present, but the Milazzos themselves were not. The parties' attorneys presented the court with an agreed order that granted a temporary restraining order against the Milazzos and Signature. In the order, prior to the portion specifying the terms of the temporary restraining order, the parties agreed that, for the purposes of the order, confidential information would be defined as any nonpublic information related to Windy City's finances, customers, marketing efforts, research and development data, and employee information-a definition that substantially mirrored the definition of confidential information in Windy City's company operating agreements. Additionally, the order stated that the Milazzos and Signature:
"hereby represent that they have not, from and after February 14, 2014 to and including [May 16, 2014], used, reproduced, disclosed or otherwise distributed Confidential Information, or any materials containing Confidential Information in any manner that would be a violation *747 *476 of this Order if it had been done after the entry of this Order."
The order continued and specified the terms of the temporary restraining order, which barred the Milazzos, Signature and any of their agents or employees from using, accessing, reproducing, disclosing or distributing any materials containing Windy City's confidential information for any purpose except as necessary to comply with litigation-related discovery. The order also required the Milazzos to return to Windy City within three days "all information, documents and property" that contained confidential information and all other property belonging to Windy City, regardless of whether such information contained Windy City's confidential information, as well as identify any person or entity to which the Milazzos disclosed confidential information.
¶ 12 B. Contempt Proceedings
¶ 13 At some point after the circuit court entered the temporary restraining order, Windy City believed that the Milazzos' representation therein about their actions concerning Windy City's confidential information from February 14, 2014, to May 16, 2014, was untruthful and also that they had violated the order itself.
¶ 14 As a result, on February 5, 2015, Windy City filed a petition for indirect criminal contempt against both Milazzos. Windy City began its petition by reviewing the facts that led to the issuance of the temporary restraining order, including the Milazzos' transfer of information to three personal e-mail addresses of Janet during the early morning hours of February 15, 2014. Windy City also pointed out that the Milazzos retained its property, including two laptop computers, which "revealed use after February 14, 2014." Windy City then highlighted that, in the temporary restraining order, specifically paragraph B, the Milazzos represented that they had not used, reproduced, disclosed or distributed any of its confidential information or any materials containing its confidential information from February 14, 2014 to May 16, 2014. Windy City, however, posited that:
"9. The statement in paragraph B was false.
10. Respondents transferred Confidential Information from the two Windy City computers in violation of the Order of May 16, 2014. Respondents made use of the Confidential Information in the commencement and conduct of the business of Signature in competition with the business of Windy City from and after February 14, 2014.
11. The actions of Respondents were not in the actual physical presence of the Court.
12. The actions of Respondents were contemptuous of the Court, in that Respondents lied as to their actions from February 14, 2014 until May 16, 2014, and procured the entry of the TRO by a statement that was knowingly false.
13. The actions of Respondents have continued to be contemptuous until this date, in that Respondents continue to use the Confidential Information in violation of the TRO."
Based on these alleged actions, Windy City requested that the Milazzos be held in indirect criminal contempt and each sentenced to six months' imprisonment as well as fined $500. Windy City's petition was verified and signed by George Jacobs, its president.
¶ 15 The Milazzos subsequently requested that the Cook County State's Attorney's Office prosecute their criminal contempt charges, which the circuit court denied. On March 3, 2015, because Windy City had filed its petition for indirect criminal contempt using the same civil case number as the underlying litigation, the circuit court *748 *477 granted Windy City leave to refile its petition so that the clerk of the circuit court could issue the petition criminal contempt numbers. The following day, Windy City refiled an identical copy of its initial petition.
¶ 16 Thereafter, Janet moved for a substitution of judge, which was denied. Windy City then dismissed the charges against Janet but with leave to reinstate, temporarily leaving only Sal charged with indirect criminal contempt. The circuit court arraigned Sal and informed him the case was a criminal matter and of several rights he had, including the right to compulsory process and the right to present evidence as well as the privilege against self-incrimination and the prosecution's burden to prove his guilt beyond a reasonable doubt. The court, however, told him that, due to the potential punishment he faced, he was not entitled to a jury trial. Sal acknowledged understanding his rights and entered a plea of not guilty. Later, Windy City reinstated the charges against Janet, filing an identical petition as before except only naming her as the one charged. The court arraigned Janet, who likewise entered a plea of not guilty.
¶ 17 The Milazzos requested bills of particulars, and the circuit court ordered Windy City to comply, which it did, supplying Sal and Janet with separate, but substantially similar, bills of particulars. In the bills of particulars, Windy City provided a detailed accounting of the forensic evidence they believed supported their allegations that the Milazzos should be held in indirect criminal contempt. The bills of particulars were based primarily on affidavits, all dated in the year 2014, from Joseph Fazio, a forensic examiner, who examined two laptop computers, two cell phones and one iPad that Windy City had provided to the Milazzos as part of their employment, which were returned in April 2014. The bills of particulars, however, noted that Fazio could not analyze the metadata of the iPad or cell phones because they had been reset to their factory settings in March 2014, which permanently erased the data that had been stored in them.
¶ 18 Fazio was able to analyze the laptop computers, one which had been given to Janet and one which had been given to Sal. Fazio determined that 47 portable storage devices had been plugged into the computers before and after the Milazzos' termination from Windy City, but the Milazzos only turned over 11 of those devices. Based on his analysis of those 11 devices, Fazio concluded that they had been plugged into a Macintosh computer at some point after the Milazzos' firing. Although Fazio did not have access to the Macintosh computer, he could tell that the portable storage devices contained a plethora of Windy City's information, including all of its accounting records, financial statements, payroll data, vehicle loan documentation, customer lists, and operating cost information. Based on his investigation, Fazio believed that the Milazzos had plugged the portable storage devices into the laptops provided to them by Windy City, transferred Windy City's information onto the devices, plugged those devices into a Macintosh computer and then transferred the information onto the Macintosh computer.
¶ 19 Fazio's analysis of the laptop computer that Windy City had provided to Janet revealed that portable storage devices had been attached to it on six different occasions following the Milazzos' firing and before May 2014. A list attached to Fazio's affidavit provided the specific dates and times the portable storage devices purportedly had been attached to Janet's computer. However, Fazio was never given access to those portable storage devices, *749 *478 rendering him unable to conclude whether Windy City information was stored on those specific portable storage devices. After reviewing "LNK files" on the computer, which could show what files interacted with portable storage devices, Fazio saw "reference" to portable storage devices containing sensitive information of Windy City, including its QuickBooks accounting database, the accounting program that Windy City had used for many years. Fazio also saw a LNK file referencing a backup of Janet's Outlook e-mail and contacts. According to Fazio, nine LNK files had been "interacted" with following the Milazzos' firing, and he attached a document providing a list of the observable LNK files with the dates and times of their last interaction.
¶ 20 Fazio's examination also revealed that several cloud service accounts-Dropbox, Google Drive, Sky Drive, and Microsoft One Note-had been accessed using Janet's computer, and he saw "reference" to Windy City information on these accounts. All told, Fazio determined that Janet's computer accessed the cloud service accounts 62 times after she and Sal were fired, but Fazio could not determine what actual information the files in the cloud service accounts contained without access to them. Fazio attached a document providing a list of the files seen on the cloud service accounts.
¶ 21 Fazio's analysis of the laptop computer that Windy City had provided to Sal revealed that portable storage devices had been attached to it also on six different occasions following the Milazzos' firing and before May 2014. A list attached to Fazio's affidavit provided the specific dates and times the portable storage devices purportedly had been attached to Sal's computer. However, Fazio was never given access to those portable storage devices, rendering him unable to conclude whether Windy City information was stored on those specific portable storage devices. After reviewing the "LNK files" on Sal's computer, Fazio saw "reference" to portable storage devices containing sensitive information of Windy City, including a reference to a backup of Sal's Outlook e-mail and contacts. According to Fazio, 58 LNK files had been "interacted" with following the Milazzos' firing, and he attached a document providing a list of the observable LNK files with the dates and times of their last interaction.
¶ 22 Fazio's examination also revealed that one cloud service account-Google Drive-had been accessed using Sal's computer, and he saw "reference" to Windy City information on this account. All told, Fazio determined that Sal's computer accessed the cloud service accounts 178 times after he and Janet were fired, but Fazio could not determine what actual information the files in the cloud service account contained without access to it. Fazio attached a document providing a list of the files seen on the cloud service account.
¶ 23 After receiving the bills of particulars, the Milazzos filed a joint motion to dismiss the indirect criminal contempt petition, contending that it should be dismissed for multiple reasons. First, the Milazzos argued that the operative date of February 14, 2014, in the temporary restraining order, wherein they represented that they had not used or distributed any of Windy City's confidential information, did not reflect the true agreement of the parties. The Milazzos posited that April 14, 2014, was the actual operative date agreed to, but it was changed unbeknownst to them. The Milazzos stated that the order had been negotiated by their former attorney, John Grady, with Windy City's attorney, Michael Pildes. And according to the Milazzos, e-mail correspondences between the attorneys in the week leading up to the *750 *479 order being entered, which were attached to the motion, revealed that, in all of the proposed versions, the operative date was April 14, 2014. In fact, according to the Milazzos, in the e-mail exchanges, both attorneys agreed to a proposed version containing April 14, 2014, as the operative date. Yet inexplicably, in the version signed by the circuit court, the date was February 14, 2014. The Milazzos also highlighted that, in the temporary restraining order in the court's official file, the order is missing the page containing the operative date of the Milazzos' representation. The Milazzos asserted that, because constitutional due process and fairness prohibited the initiation of a criminal case based upon false or misleading information, the ambiguity of the operative date mandated dismissal.
¶ 24 Second, the Milazzos argued that the ambiguity of the operative date of the temporary restraining order also rendered the petition for indirect criminal contempt insufficient because the contempt charge was premised upon a violation of a court order with an operative date that did not reflect the parties' agreement. Third, the Milazzos argued that, in combination, the petition and bills of particulars failed to sufficiently inform them of the nature of the contempt charges.
¶ 25 Windy City responded and included an affidavit from Pildes, wherein he acknowledged that, in earlier exchanges of the proposed temporary restraining order, the operative date of the Milazzos' representation was April 14, 2014. However, Pildes averred that, after the e-mail exchanges with Grady, he noticed the date was an error and it should have been February 14, 2014. After Pildes had a telephone conversation with Grady, they agreed to change the date to February 14, 2014. Grady told Pildes that he would make the change and confirm with the Milazzos. According to Pildes, on May 16, 2014, Grady brought the unsigned order into court, which contained the date February 14, 2014, and both of them informed the court that their clients had agreed to the order, which the court subsequently signed. Based on Pildes's affidavit, Windy City contended that there was no mistake or ambiguity in the operative date and therefore dismissal was not warranted on such grounds. Windy City further argued that the Milazzos had been fully informed of the charges against them based on the bills of particulars.
¶ 26 The circuit court subsequently entered a written order, dismissing the petition. The court observed that Windy City's allegation was that the Milazzos had violated the temporary restraining order based on events occurring prior to the order being entered on May 16, 2014. The court noted that, when it entered the temporary restraining order, it granted prospective relief to Windy City by barring certain future conduct by the Milazzos, but it did not "retroactively enjoin" them and the representation made by them in the order "was not part of the relief granted." According to the court, regardless of the veracity of the Milazzos' representation and the alleged error of the operative date of that representation, it was "not possible to enjoin a party retroactively." The court found that the Milazzos could not have "willfully violated" the temporary restraining order "based on conduct which had occurred before the entry of the order" and therefore dismissed the petition for failing to allege a violation of the temporary restraining order. Because of its finding, the court stated that it did not need to address the Milazzos' arguments concerning the alleged error of the operative date of their representation and the alleged insufficiency of the petition and bills of particulars.
*751 *480 ¶ 27 Windy City subsequently moved the circuit court to reconsider its dismissal, arguing that the Milazzos committed contemptuous conduct by violating the temporary restraining order in multiple manners, including not returning property containing confidential information, lying to the court about their actions after February 14, 2014, using confidential information in Signature's business, and not identifying the people or entities to whom they distributed confidential information and what information they distributed. Windy City highlighted that its bills of particulars clearly showed the various ways the Milazzos had violated the temporary restraining order and posited that, based on its allegations, there were no ex post facto concerns.
¶ 28 The Milazzos responded that Windy City had not brought forth any newly discovered evidence or an alleged change in the law warranting a grant of its motion to reconsider. The Milazzos posited that, in any event, the circuit court properly found that their conduct before the entry of the temporary restraining order could not form the basis for contempt charges.
¶ 29 Windy City replied, arguing that its motion was proper because it had identified errors in the circuit court's application of the law, namely that the Milazzos made a false representation in the temporary restraining order, they had used and reproduced Windy City's confidential information, and they retained its property, all in violation of the temporary restraining order and constituting contempt.
¶ 30 During a May 23, 2016, hearing on Windy City's motion to reconsider, the parties began discussing the sufficiency of the allegations, after which the circuit court intimated that it had dismissed the petition based on a lack of "specificity" and separately remarked that the petition was "lacking" in specificity. The court then acknowledged that the Milazzos' representation about not doing certain actions after February 14, 2014, and stated it wanted additional time to reconsider its original ruling. Before concluding the hearing, the court stated that, based on the Milazzos' failure to turn over more than 30 portable storage devices and a Macintosh computer that allegedly contained confidential information of Windy City, it was concerned about "entrapment" and the portion of the temporary restraining order that required the Milazzos to return any property that contained confidential information. The court noted that, "if they return [the portable storage devices and Macintosh computer]," which based on Windy City's forensic examination indicated usage after the Milazzos' firing and the presence of confidential information, "they admit they did it," and "if they admit they did it," they would have admitted to lying to the court about not doing anything after February 14, 2014. The court accordingly denied Windy City's motion to reconsider insofar as it related to the Milazzos' failure to return any property that contained Windy City's confidential information because of the "entrapment" concern. The court stated, however, that it would reserve ruling on the remainder of the motion to reconsider. The parties subsequently filed additional briefs in support of their positions.
¶ 31 On September 7, 2016, the circuit court held another hearing on Windy City's motion to reconsider. The court noted that it originally raised the "idea" about a petition for indirect criminal contempt because of its "inherent discretion to run its call and to hold [individuals] in criminal contempt if they violate the Court's orders." Despite this, the court believed the petition for indirect criminal contempt resulted in the parties' failure to "keep[ ] their eyes on the ball * * * of what this case is really about." The court asserted that it would not accept any party "playing *752 *481 with this system" and using "gamesmanship" but ultimately wanted the parties to maintain their focus on the civil litigation, not ancillary contempt proceedings. Nevertheless, the court "believe[d] that [its] original ruling was correct in terms of the ex post facto nature" and accordingly denied Windy City's motion to reconsider.
¶ 32 Windy City timely appealed the circuit court's dismissal of its petition for indirect criminal contempt, and the court's denial of its motion to reconsider.
¶ 33 II. ANALYSIS
¶ 34 In this appeal, Windy City contends that the circuit court's dismissal of its indirect criminal contempt petition against the Milazzos was erroneous for several reasons. First, Windy City argues that there were no ex post facto concerns because the Milazzos made a false representation to the court in the temporary restraining order, which constitutes contempt. Second, Windy City argues that, to the extent the court dismissed the petition based on its sufficiency, or lack thereof, the ruling was improper as the petition and bills of particulars sufficiently informed the Milazzos of how they allegedly violated the temporary restraining order and committed contempt of court. Third, Windy City argues that the issue of entrapment was irrelevant to the proceedings because the Milazzos never raised the affirmative defense and the defense was nevertheless inapplicable under the circumstances. Lastly, Windy City argues that the court also erred in denying its motion to reconsider because the court improperly justified the ruling by requesting the parties focus their attention on the civil litigation, not because there was a defect in the petition itself. However, before delving into Windy City's specific arguments, we must provide an overview of the law of contempt.
¶ 35 A. Types of Contempt of Court
¶ 36 Contempt of court has been defined as " 'conduct that is calculated to impede, embarrass, or obstruct the court in its administration of justice or derogate from the court's authority or dignity, or to bring the administration of the law into disrepute.' "
People v. Geiger
,
¶ 37 1. Civil and Criminal Contempt
¶ 38 Civil and criminal contempt are distinguished based upon
why
the contempt charge was brought. A civil contempt
*482
*753
charge is generally brought to compel compliance with a court order, whereas a criminal contempt charge is brought to punish past conduct,
i.e.
, punishing conduct that a court order prohibited.
People v. Warren
,
¶ 39 2. Direct v. Indirect Contempt
¶ 40 Direct and indirect contempt are distinguished based upon
where
the contemptuous conduct occurred. A direct contempt charge is brought when the alleged contemptuous conduct occurs in the direct presence of a judge, whereas an indirect contempt charge is brought when the alleged contemptuous conduct occurs outside the direct presence of a judge.
People v. Lindsey
,
¶ 41 Properly identifying whether a contempt charge is direct or indirect is critical because a direct contempt charge may be resolved summarily without formal pleadings, notice, or a hearing, as the alleged conduct was witnessed
*754
*483
firsthand by the judge.
In re Estate of Lee
,
¶ 42 Additionally, some decisions in Illinois have carved out a subcategory of direct contempt, sometimes referred to as constructive direct contempt, which involves conduct that occurs in the constructive presence of the court. See
People v. Javaras
,
¶ 43 B. The Instant Case
¶ 44 In this case, based on our review of Windy City's petition for indirect criminal contempt against the Milazzos, the two overarching allegations are that (1) they lied in the temporary restraining order by representing that they had not used Windy City's confidential information from February 14, 2014, through May 16, 2014, because they had, in fact, transferred confidential information from two computers issued to them by Windy City and used the information to operate Signature and (2) they violated the temporary restraining order by continuing to use Windy City's confidential information up to and including the day it filed the petition.
¶ 45 We agree with Windy City that criminal contempt was the proper charge here because it sought to punish the Milazzos for their allegedly past contemptuous conduct, but we disagree that its petition was purely one for indirect criminal contempt. Although Windy City's second allegation is clearly one for indirect criminal contempt because the alleged acts of violating what the temporary restraining order prohibited occurred outside the judge's presence, its first allegation is actually one for constructive direct criminal contempt because the alleged contemptuous conduct-a false representation in a court document-occurred within a constituent part of the court. However, as previously discussed, this identification is merely a distinction without a difference as a constructive direct criminal contempt charge is treated as the functional equivalent of an indirect criminal contempt charge because the alleged conduct must be proven by external facts of which the judge does not have direct knowledge. See
*755
*484
In re Marriage of Betts
,
¶ 46 An indirect criminal contempt proceeding is a separate and distinct proceeding from that which underlies the contempt charge.
Levaccare v. Levaccare
,
¶ 47 C. Jurisdiction
¶ 48 With that overview of the law of contempt and the proper characterization of Windy City's petition determined, we briefly address an issue that neither party has raised, our jurisdiction in this appeal, which we have a duty to consider regardless of whether the parties have raised it.
People v. Smith
,
*756
*485
¶ 49 But obviously Windy City's petition was not dismissed after a trial on the merits. Instead, the circuit court dismissed the petition before a trial based on the Milazzos' motion to dismiss for failing to state an offense brought pursuant to section 114-1(a)(8) of the Criminal Code ( 725 ILCS 5/114-1(a)(8) (West 2014) ), a procedure of which this court has tacitly approved. See
United Transfer, Inc. v. Lorence
,
¶ 50 D. Ex Post Facto Concerns
¶ 51 With the overview of the law of contempt in mind and our jurisdiction settled, we now turn to the specific contentions raised by Windy City, beginning with its argument that the circuit court erred in dismissing the petition based on ex post facto concerns. Windy City posits the Milazzos falsely represented in the temporary restraining order that they had not performed certain actions from February 14, 2014, through May 16, 2014, and asserts that a false representation to the court constitutes contempt.
¶ 52 When the circuit court dismissed Windy City's petition based on ex post facto concerns, the court found that the petition failed to allege an offense because the temporary restraining order provided prospective relief to Windy City in the form of an injunction and the Milazzos could not have willfully violated the order based on conduct occurring prior to the order's entry. In essence, the court ruled as a matter of law that Windy City's allegation about the Milazzos' past conduct could not support a contempt charge.
¶ 53 As mentioned, when the Milazzos moved to dismiss the petition for failing to state an offense, they did so pursuant to section 114-1(a)(8) of the Criminal Code ( 725 ILCS 5/114-1(a)(8) (West 2014) ). Generally, we review the circuit court's ultimate decision to dismiss charges under the abuse-of-discretion standard of review (see
People v. Mattis
,
¶ 54 Although the circuit court found that, regardless of the veracity of the Milazzos' representation in the temporary restraining order, it was impossible "to enjoin a party retroactively," the court misunderstood the true nature of Windy City's allegation. Windy City was not concerned that the Milazzos' past conduct would have violated what the temporary restraining order barred prospectively but rather that the Milazzos' representation about their past conduct was untruthful. It is axiomatic that a temporary restraining order acts to bar future conduct and
*757
*486
maintain the status quo (see
Delgado v. Board of Election Commissioners
,
¶ 55 Indeed, the filing of documents in court containing known falsities has supported contempt findings. In
In re Estate of Melody
,
¶ 56 Suffice it to say that making a knowingly false representation in a temporary restraining order similarly could constitute contempt under the right circumstances. And this is exactly what Windy City alleged the Milazzos had done. Generally, the
ex post facto
doctrine concerns the enactment of laws that retroactively punish conduct and thereby punish conduct that was legal when originally performed.
People v. Cornelius
,
¶ 57 This conclusion has nothing to do with what the evidence at a trial would show concerning the Milazzos' alleged false representation. Although the mere filing of court documents containing known falsities may be calculated to impede or obstruct the court in its administration of justice (
People ex rel. Kunce v. Hogan
,
¶ 58 Furthermore, in Sal's brief, he states that he and Janet had been charged with felony theft for allegedly stealing property of Windy City, which, according to him, required Janet to review Windy City's QuickBooks accounting software with her attorney after February 14, 2014, to defend against the theft charges. Although Sal did not say when after February 14, 2014, this occurred, it is possible it was before May 16, 2014. If so, the Milazzos could have believed that accessing this information had a legitimate purpose and would not have been covered by their representation in the temporary restraining order. However, whether or not these examples demonstrate that the Milazzos did not willfully misrepresent their actions in the temporary restraining order is reserved for a trial on the merits of the evidence, not a dismissal based on the law. Consequently, the circuit court erred in dismissing Windy City's petition as a matter of law based on the temporary restraining order providing only prospective relief.
¶ 59 E. The Sufficiency of the Petition
¶ 60 Windy City next contends that, to the extent the circuit court dismissed its petition based on a lack of specificity, such a ruling was improper as the petition and bills of particulars gave sufficient notice to the Milazzos of how they allegedly violated the temporary restraining order.
¶ 61 During the first hearing on Windy City's motion to reconsider, the circuit court intimated that it had dismissed the petition based on a lack of "specificity," though it did not explain why the petition lacked the required specificity. While the Milazzos did argue in support of dismissal that the petition and bills of particulars in conjunction were insufficient to inform them of the nature of the charges, the court did not initially dismiss the petition based on a lack of specificity, but rather determined that it did not need to address the issue because of the ex post facto concerns.
¶ 62 Although the circuit court did not address this issue when it initially dismissed the petition, we must, as the prosecutor's failure to sufficiently inform the alleged contemnor of the nature of the charges against him renders him unable to properly exercise his due process rights. See
In re Marriage of Knoll
,
¶ 63 In purely criminal proceedings, all defendants have the right to be informed about the nature of the criminal allegations against them.
People v. Meyers
,
"(1) Stating the name of the offense;
(2) Citing the statutory provision alleged to have been violated;
(3) Setting forth the nature and elements of the offense charged;
(4) Stating the date and county of the offense as definitely as can be done; and
(5) Stating the name of the accused, if known, and if not known, designate the accused by any name or description by which he can be identified with reasonable certainty." 725 ILCS 5/111-3(a) (West 2014).
¶ 64 Because a charging instrument is a preliminary pleading, it only must contain a "cursory statement of the facts."
People v. Swartwout
,
¶ 65 The preceding law concerned purely criminal proceedings. Contempt proceedings, as previously discussed, are
sui generis
(
Milton
,
¶ 66 Although no decision from Illinois has expressly adopted the requirements enumerated in section 111-3(a) of the Criminal Code ( 725 ILCS 5/111-3(a) (West 2014) ) as ones needed to be included in petitions for indirect criminal contempt and our supreme court long ago stated that petitions for indirect criminal contempt do not need to have all the formalities of criminal complaints to be sufficient (see
People v. Harrison
,
¶ 67 In
Fields
, the defendant was charged with two counts of money laundering.
¶ 68 The defendant appealed, arguing that the indictment lacked the necessary details to sufficiently inform him of the nature of the offenses.
¶ 69 Similarly, the money laundering statute defined "financial transaction" as any purchase, loan, sale, gift, pledge, transfer, delivery or other disposition of property.
¶ 70 As in Fields , we find that Windy City's petition failed to set forth the allegations against the Milazzos specifically and definitely and thus, as a whole, failed to sufficiently inform them of the nature of the charges against them. In reviewing the petition, the majority of its allegations of fact are a recitation of the facts leading up to the circuit court's grant of the temporary restraining order. In that history, there are brief allegations that two laptops of Windy City that the Milazzos retained "revealed use after February 14, 2014" and that Janet e-mailed herself with confidential information on the morning of February 15, 2014. Following that history, Windy City raised the two overarching allegations. First, it highlighted the Milazzos' representation in the temporary restraining and asserted it was false because they "transferred Confidential Information" from Windy City's computers "in violation of" the temporary restraining order and used that information to operate its competing transportation business. Second, Windy City asserted that the Milazzos' actions "continued to be contemptuous" up to and including the date Windy City brought its petition, in that they "continue[d] to use" the confidential information in violation of the temporary restraining order.
*762 *491 ¶ 71 Though the petition asserted that Janet e-mailed herself confidential information on the morning of February 15, 2014, that assertion was contained in the part of the petition reciting the facts leading up to the entry of the temporary restraining order. Moreover, when making this assertion, Windy City did not state that she did this using one of the two Windy City computers, on which the overarching allegation of improperly transferring confidential information was based. As such, it was unclear if that assertion was the basis, or part of the bases, for Windy City's allegation that the Milazzos had lied in the temporary restraining order. Additionally, the Milazzos admitted in both answers that Janet copied the data in her Outlook file at Windy City the morning of February 15, 2014. The Milazzos could not expect that an action they admitted to would later form the basis of a contempt charge. Simply, it is unclear how Windy City's assertion about Janet e-mailing herself confidential information on the morning of February 15, 2014, relates to the contempt charge, if at all.
¶ 72 Given that it was unclear how, or if, Janet's actions on the morning of February 15, 2014, related to the contempt charges, the remaining allegations are nothing more than broad, conclusory accusations that the Milazzos lied in, and violated, the temporary restraining order. Notably, and just like in Fields , Windy City's allegation that the Milazzos "transferred Confidential Information" is completely vague. "Confidential information" has a defined meaning according to the temporary restraining order and the word "transfer" when used with information can mean several actions, such as printing and keeping the information in hard copy form, e-mailing the information to another e-mail account, uploading the information to a cloud storage service, saving the information on an external storage device, or using a local data transfer to transfer the information from one computer to another. Windy City's petition did not attempt to indicate how the transfer or transfers occurred, and the petition did not allege when the transfer or transfers occurred nor provide any type of description of the confidential information that was transferred. Similarly, Windy City did not explain at all how the Milazzos "made use" of the confidential information in operating Signature. The petition further lacked any indication about how or when the Milazzos "continue[d] to use" of Windy City's confidential information after the temporary restraining order had been entered.
¶ 73 Given this lack of detail, the Milazzos were left to guess as to what conduct by them served as the basis for Windy City's charges that they made a false representation in the temporary restraining order and violated the order itself. Comparable to
Fields
,
¶ 74 Nevertheless, Windy City posits that, in conjunction, its petition and bill of
*763
*492
particulars sufficiently apprised the Milazzos of the nature of the charges against them. However, our review is limited only to the charging instrument itself (see
Meyers
,
¶ 75 Windy City additionally claims in its reply brief that its petition against the Milazzos alleged that they failed to return Windy City's property and information, which it argues also violated the temporary restraining order. For support, Windy City cites to paragraph 13 of its petition, which states that "[t]he actions of [the Milazzos] have continued to be contemptuous until this date, in that [they] continue to use the Confidential Information of Windy City in violation of the [temporary restraining order]." But nowhere in this paragraph did Windy City specifically and definitely allege that the Milazzos failed to return its property and information. Before paragraph 13, Windy City did state that the Milazzos "retained possession of two laptop computers, one iPad, and two 'smart' phones which held Confidential Information," but Windy City did not allege that their retention of property violated the temporary restraining order.
¶ 76 It is undeniable that, as part of the temporary restraining order, the Milazzos were required to return to Windy City within three days "all information, documents and property" that contained confidential information and "all other property belonging to Windy City, regardless of whether or not such information is Windy City's Confidential Information." But to charge someone with criminal contempt based on retention of property and information in violation of this clause of the temporary restraining order, there needed to be a specific and definite allegation, which Windy City failed to do. See
Waldron
,
¶ 77 We reiterate that, when the circuit court dismissed the petition initially, it did not address the sufficiency of the petition despite that argument being made by the Milazzos in support of their request to have the petition dismissed. However, we may affirm the circuit court's judgment on any basis supported by the record, regardless of whether the court based its judgment on those grounds. See
Pekin Insurance Co. v. Lexington Station, LLC
,
¶ 78 F. Motion to Reconsider
¶ 79 Windy City also contends that the circuit court erred in denying its motion to *764 *493 reconsider, arguing that the court's two-part justification-initially based on concerns about the issue of entrapment and later on grounds of wanting the parties to focus their attention on the civil litigation-was erroneous.
¶ 80 Motions to reconsider generally do one of three things: (1) bring to the court's attention changes in the law, (2) bring to the court's attention new evidence, or (3) assert the court erred in its application of the existing law.
Papadakis v. Fitness 19 IL 116, LLC
,
¶ 81 III. CONCLUSION
¶ 82 For the foregoing reasons, we affirm the judgments of the circuit court of Cook County.
¶ 83 Affirmed.
Justices Reyes concurred in the judgment and opinion.
Justice Gordon specially concurred, with opinion.
¶ 84 JUSTICE GORDON, specially concurring:
¶ 85 I agree that the decision of the trial court should be affirmed but I must write separately. I know of no Illinois Supreme Court case that finds that a prosecutor has the standing or the right to appeal a lower court finding dismissing a petition to hold an alleged contemnor in indirect criminal contempt. There is a Second District case that analyzes a case similar to the case at bar, but jurisdiction and standing was not an issue and was never discussed. See
United Transfer, Inc. v. Lorence
,
¶ 86 In the case at bar, I do not believe that the trial court misunderstood the true nature of Windy City's allegation. The trial court may have dismissed the petition initially based on the retroactivity issue, but as the majority ably points out, the prosecutor failed to sufficiently inform the alleged contemnor of the nature of the charges against him. The trial court may *765 *494 have noticed that the remaining allegations of the petition did not adequately provide the alleged contemnor with the ability to figure out the nature of the criminal allegation alleged. As a result, the trial court dismissed the petition on the one obvious ground, the alleged retroactivity.
Reference
- Full Case Name
- WINDY CITY LIMOUSINE COMPANY LLC, an Illinois Limited Liability Company, and Windy City Limousine Manager LLC, an Illinois Limited Liability Company, Plaintiffs-Appellants, v. Sal MILAZZO, Janet Milazzo, and Signature Transportation Group LLC, an Illinois Limited Liability Company, Defendants (Sal Milazzo and Janet Milazzo, Defendants-Appellees).
- Cited By
- 1 case
- Status
- Unpublished