D'Agostino v. Lynch

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D'Agostino v. Lynch

State: Illinois

Court: 1st District Appellate

Docket No: 1-06-3026 Rel

Case Date: 04/02/2008

Preview:THIRD DIVISION April 2, 2008

No. 1-06-3026

MARY CARR D'AGOSTINO and MARIO D'AGOSTINO,

) ) ) Plaintiffs and Counterdefendants-Appellees, ) ) v. ) ) MICHAEL W. LYNCH, ) ) Defendant and Counterplaintiff and Third- ) Party Plaintiff and Contemnor-Appellant, ) ) (Michigan Avenue Partners, LLC, and Michigan ) Avenue Partners, Inc., ) ) Defendants and Counterplaintiffs and ) Third-Party Plaintiffs, ) v. ) ) Dominic Forte, ) ) Third-Party Defendant). ) JUSTICE THEIS delivered the opinion of the court:

Appeal from the Circuit Court of Cook County.

No. 98 CH 11007

)

Honorable Paddy McNamara, Judge Presiding.

Defendant, counterplaintiff, third-party plaintiff, and contemnor Michael W. Lynch (Lynch) appeals on an interlocutory basis pursuant to Supreme Court Rule 304(b)(5) (210 Ill. 2d R. 304(b)(5)) from the order of the circuit court of Cook County holding him in direct criminal contempt and sentencing him to 60 days' imprisonment. The court held Lynch in contempt after he filed a motion for substitution of judge for cause in which he alleged that Judge Alexander

1-06-3026 White could not be impartial to his case because Judge White had been bribed by plaintiffs and counterdefendants Mary Carr D'Agostino and Mario D'Agostino, and their counsel, Michael Braun, all of whom Lynch alleged were members of an Italian mafia family. On appeal, Lynch contends that: (1) the court improperly convicted him of direct criminal contempt because there was no evidence that he intentionally embarrassed, obstructed, or hindered the court in the administration of justice; and (2) the contempt finding violates his first amendment right to freedom of speech. For the following reasons, we affirm. The following facts and procedural history are relevant to this appeal. Plaintiffs Mario and Mary D'Agostino commenced the present action seeking to enforce three promissory notes against defendants Lynch and his real estate corporations, Michigan Avenue Partners, LLC, and Michigan Avenue Partners, Inc.1 The notes memorialized three loans for hundreds of thousands of dollars that the D'Agostinos made to defendants in 1997. Defendants filed counterclaims against the D'Agostinos and a third-party claim against Lynch's former business partner and Mario's cousin, Dominic Forte.2 In the counterclaims, defendants alleged that the promissory notes were actually part of a broader oral funding agreement, under which the D'Agostinos were to lend Lynch substantially more money for use in several projects. Lynch claimed that the D'Agostinos breached this funding agreement, and sought damages for the breach. In the third-party claim, defendants sued Forte for breach of

Michigan Avenue Partners, LLC, and Michigan Avenue Partners, Inc., are not parties to this appeal.
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1

Forte is not a party to this appeal. 2

1-06-3026 fiduciary duty. The D'Agostinos subsequently filed a motion for summary judgment on defendants' counterclaims, alleging, inter alia, that there was no agreement to lend defendants money other than what had been memorialized in the promissory notes. The court granted the D'Agostinos' motion, and we affirmed. D'Agostino v. Lynch, No. 1-03-2786 (2005) (unpublished order under Supreme Court Rule 23). Forte filed a motion to dismiss defendants' third-party complaint alleging, inter alia, that it failed to satisfy Illinois's fact-pleading standard because it did not state specifically what Forte had done to breach his fiduciary duty. The circuit court granted that motion, and, once again, we affirmed. D'Agostino v. Lynch, No. 1-03-2786 (2005) (unpublished order under Supreme Court Rule 23). On August 14, 2003, the circuit court entered judgment in favor of the D'Agostinos for the amount due under the promissory notes, $1,805,651. The D'Agostinos then began to pursue enforcement of the judgment in the circuit court. The D'Agostinos initiated citation proceedings against Lynch in July 2004. This process continued for roughly a year, during the course of which the D'Agostinos were only able to collect $211,143.65. In February 2005, the D'Agostinos filed a motion to compel Lynch to turn over certain proceeds from the refinancing of his personal residence. Therein, the D'Agostinos claimed that Lynch had sent these proceeds to his attorneys for disbursement to various parties, including his wife, in violation of the citation proceedings. The matter was continued for hearing until August 18, 2005.

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1-06-3026 However, on August 17, 2005, Lynch filed a personal bankruptcy petition, which had the effect of staying all of the D'Agostinos' efforts to collect their judgment. According to materials filed by Lynch, he voluntarily dismissed his bankruptcy petition in March 2006. On August 10, 2006, the circuit court commenced a hearing on the D'Agostinos' stillpending request for a turnover order. However, Lynch, who was appearing pro se at that point, informed Judge Alexander White, who was presiding over the citation proceedings, that he would be filing a motion for substitution of judge. Shortly thereafter, Lynch filed a pro se "verified motion for judicial admission or denial by Judge Alexander P. White regarding knowledge of and/or participation in alleged criminal acts within and across state lines by judges in the circuit court of Cook County, Illinois, and request for self-disqualification instanter." Therein, Lynch alleged that "a criminal enterprise has infiltrated the judicial system in the United States." More specifically, Lynch alleged that Mario D'Agostino and his attorney, Michael Braun, were members of organized crime who bribed several judges, including Judge White, as well as United States Bankruptcy Court Judge Eugene R. Wedoff, who presided over a personal bankruptcy proceeding filed by Lynch, and Cook County Circuit Court Judge Barbara Disko, who had entered judgment in favor of the D'Agostinos in these proceedings. Lynch claimed that these judges "exploit[ed] litigants for their own financial gain," but did not explain specifically how they did so. Accordingly, Lynch claimed that Judge White could not preside over this case because his doing so would deny Lynch his rights to "adequate, complete, effective, fair, full, meaningful and timely access to the court." Lynch further asserted that "any reasonable person knowing the facts of this case would

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1-06-3026 seriously question Judge White's impartiality (as well as his fitness to be on the bench)." Lynch added that he had sent "binders of material evidence" supporting these allegations to criminal and civil authorities, as well as the media. In support of his motion, Lynch attached his own affidavit averring the truth of his allegations. He also attached two affidavits from Sidney J. Perceful, who averred that he overheard attorneys discussing how to include more assets in Lynch's bankruptcy estate by including Lynch's personal residence in the liquidation. Lynch also attached to his motion an article from a publication called Business Wire. The article reported that Lynch had recently joined the board of the Illinois Family Court Accountability Advocates (the IFCAA), a nonprofit agency whose goal is "to eradicate social dysfunction through education and activism." Among other things, the IFCAA seeks to combat "judicial corruption

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