NO. 4-04-0881

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

                         JUSTICE MYERSCOUGH delivered the opinion of the court:

                        Defendant, Robert B. Cochonour, appeals the trialcourt's September 10, 2004, order finding that defendant remainedin contempt pursuant to the court's July 29, 2002, order. Wedismiss in part and affirm in part.

I. BACKGROUND

                        This is the second time this case has been before us onappeal, and the facts preceding that appeal are more fully setforth in In re Estate of Hayden, No. 4-02-0610 (October 21, 2003)(unpublished order under Supreme Court Rule 23). To summarize,on June 19, 2002, after the trial court allowed defendant toresign as executor of the estate of Jay E. Hayden (Estate), thecourt ordered defendant to (1) file a final account of hisactions as executor, (2) file a current inventory, (3) produceall estate records or documents in his possession or subject tohis control or direction, (4) produce all documents described inthe Jay E. Hayden Foundation's (Foundation) June 4, 2002, subpoena, and (5) furnish a surety on defendant's June 1985 $2million bond. Defendant raised various defenses to complyingwith the court's order, including fifth amendment privilege (U.S.Const., amend. V), on the basis that he was the subject of agrand jury investigation regarding his conduct as executor of theEstate, attorney-client privilege, and attorney work-productprivilege. On July 22, 2002, the court rejected those defensesand directed defendant to comply with the June 19, 2002, order onJuly 29, 2002, or risk direct civil contempt.

                        On July 29, 2002, the trial court found defendant indirect civil contempt for failing to comply with the court's June19, 2002, and July 22, 2002, orders. The court sentenced defendant to the Cumberland County jail for an indefinite term, butstayed the order pending an appeal. The order further providedthat defendant could purge himself of contempt by (1) furnishingto the court copies of all estate records retained by him oranyone subject to his control and direction and (2) providingsurety on his bond. The order also contained the followingstatement:

"20. Because the furnishing of estate recordsmay be sufficient to construct a final account and current inventory as ordered by the[c]ourt, no sanction need be presently imposed with respect to the [c]ourt's orders tofile a final account and current inventory."

                        Defendant appealed the order to this court, assertingthat the trial court erred by finding him in contempt for (1)failing to produce retained copies of estate records because the attorney work-product privilege applied and (2) failing toprovide a surety on his executor's bond because defendant asserted his fifth amendment rights (U.S. Const., amend. V). Thiscourt disagreed and affirmed. In re Estate of Hayden, No. 4-02-0610 (October 21, 2003) (unpublished order under Supreme CourtRule 23).

                        According to the trial court's September 10, 2004,order, in January 2003, while the case was pending on appeal,defendant pleaded guilty in Cumberland County case No. 03-DF-1 tofelony theft of property exceeding $100,000 from the Estate andthe Foundation. As part of the plea agreement, defendant agreedto answer all questions posed to him by the Attorney Generalabout the Estate and without subpoena testify fully and truthfully at any court hearing, deposition, proceeding, trial, oradministrative proceeding involving the Estate. Also, in June2003, the court in the Estate case found that defendant breachedhis fiduciary duty and misappropriated estate funds and enteredjudgment against defendant in the amount of $5,222,522.10.

                        In December 2003, following the appeal, defendant fileda motion asking the trial court for direction on compliance withthe orders affirmed by the appellate court and suggested thatproviding a surety was moot because of his conviction and theJune 2003 judgment. In January 2004, defendant filed a notice ofcompliance and motion for discharge from the order of contemptasserting that counsel for defendant arranged for the delivery of2 1/2 boxes to be delivered to the Cumberland County circuitclerk.

                        The docket entry for a hearing held on January 16, 2004(we do not have the transcript on appeal), provides, in relevantpart, as follows:

"Evidence re: delivery of records, recordssealed, ruling on [m]otion for [d]irection--comply with the order. Surety not moot. Compliance with production of estate recordsnot yet determined. [Defendant] ordered tocomply with balance of 6/19/02 order and filefinal account and current inventory."

                        On February 2, 2004, defendant filed a petition forwrit of fairness with memorandum stating that selected copies ofthe estate records were delivered to the clerk's office andarguing that the order that defendant provide a current inventoryand final account violated the fifth amendment. On February 6,2004, defendant filed a motion requesting that the court vacateits order directing him to file a final accounting and inventory.

                        On February 9, 2004, defendant filed a motion forprotective order stating that defendant, by a designated custodian, delivered to the clerk of the court two boxes and a sheafof papers constituting matters subpoenaed by the CumberlandCounty grand jury in 2002. Also on February 9, 2004, defendantfiled a report to the court explaining the alleged impossibilityof defendant obtaining a surety bond. The motion asserted thatdefense counsel's paralegal was unable to obtain a surety bondfor defendant and that even if defendant completed an applicationfor a surety, completion of the financial-statement section wouldwaive defendant's fifth amendment right against self-incrimination. In February 2003, the court denied the motion to discharge, petition for writ of fairness, and motion to vacate.

                        Defendant subsequently filed numerous additionalmotions, including a motion to reconsider, a motion for an orderpermitting secular review, and a rider of explanation. In July2004, at the hearing on defendant's compliance with the trialcourt's orders, defendant refused to answer questions based onhis fifth amendment right against self-incrimination. The courtfound noncompliance with the orders and reserved sanctions.

                        A docket entry of August 13, 2004, stated that onSeptember 10, 2004, the trial court would present findings andrule on sanctions regarding defendant's noncompliance. In anorder dated September 10, 2004 (no transcript of this hearing wasprovided on appeal), the trial court found that defense counselattempted to purge defendant of contempt "by proxy or argument." The court further held that defendant had the ability to purgehimself of contempt but "refuses to do so by asserting [f]ifth[a]mendment claims which were denied by the [a]ppellate [c]ourtor not raised by [defendant] in his appeal." Consequently, thecourt entered the following order:

"IT IS ORDERED, that:

A. [Defendant] remains in contempt pursuant to the [c]ourt's [o]rder of July 29,2002.

B. A [b]ody [a]ttachment for [defendant]issue."

                        This appeal followed. 

II. ANALYSIS

                        Defendant raises four arguments on appeal: (1) thetrial court's order directing defendant to provide a finalaccounting and inventory constituted testimonial compulsion andwas unenforceable absent a grant of immunity, and the civilcontempt order relating thereto was punitive; (2) the orderholding defendant in direct civil contempt for failing to producethe estate records was punitive and intended to punish defendantfor his attorney's lawful refusal to produce the records prior tothe first appeal; (3) the order holding defendant in direct civilcontempt for failing to provide a surety on his bond was punitive; and (4) defendant did not attempt to assert his fifthamendment rights by proxy. Defendant also asserts that the fifthamendment rights he asserts in this appeal were not presented tonor ruled upon by this court in the previous appeal.

                        Defendants, the Foundation and directors of the Foundation, Hugh Eubank and William Wylde, filed a motion to dismissthis appeal, asserting four grounds: (1) that the appeal isuntimely because the September 10, 2004, order was not a neworder of contempt but a finding by the trial court that defendanthad not purged himself; (2) the law of the case doctrine mootsthe appeal; (3) defendant raises issues that he forfeited by notraising in the prior appeal; and (4) defendant asserts an improper standard of review--de novo--and only argues points oflaw.

A. Final Accounting and Inventory

                        Defendant first challenges the trial court's orderrequiring defendant furnish a final accounting and inventory,arguing that the court improperly ruled that defendant could notassert the fifth amendment privilege. We conclude that we do nothave jurisdiction over this issue on appeal.

                        According to the notice of appeal, defendant appealedthe September 10, 2004, ruling pursuant to Supreme Court Rules304(b)(5) and 305. Supreme Court Rule 305 addresses stays ofjudgments pending appeal and does not provide a jurisdictionalbasis for this appeal. Official Reports Advance Sheet No. 14(July 7, 2004), R. 305, eff. July 1, 2004. Supreme Court Rule304(b)(5) permits interlocutory appeals without the finding of nojust reason for delay for orders of contempt that impose "amonetary or other penalty." 155 Ill. 2d R. 304(b)(5).

                        A contempt order that does not impose sanctions is notfinal and not reviewable. In re Marriage of Depew, 246 Ill. App.3d 960, 967, 616 N.E.2d 672, 677 (1993); Revolution Portfolio,LLC v. Beale, 341 Ill. App. 3d 1021, 1026, 793 N.E.2d 900, 904(2003). Here, in January 2004, the trial court ordered defendantto file a final account and current inventory. At the July 2004hearing regarding defendant's compliance with the orders, theparties only discussed the production of estate records andsurety issues. Even so, although the court found noncomplianceby defendant, the court expressly reserved the issue of sanctions. In the September 10, 2004, order, the court found thatdefendant remained in contempt of the July 29, 2002, order--theorder that specifically excluded sanctions for the failure toproduce a final account and current inventory. Consequently, therecord contains no evidence that the court sanctioned defendantfor failing to produce a final account or current inventory.

Without the imposition of a monetary or other penalty, we do nothave jurisdiction over the appeal of this issue.

B. Failure To Produce Copies of Estate Records

                        Defendant's second argument relates to the trialcourt's finding of contempt for defendant's failure to produceselected copies of the records of the Estate. As the recordindicates, defendant gave the original records of the Estate tocounsel acting on behalf of the Cumberland County grand jury, buthis attorneys kept selected copies of the records. The courtheld defendant in contempt for failing to produce these copiesand issued the sanction of jail until produced. The courtprovided that defendant could purge himself of contempt by"furnishing to the [c]ourt copies of all estate records retainedby him or any one subject to his control or direction." As notedpreviously, this contempt finding was the subject of the earlierappeal.

                        Appellees argue that this court lacks jurisdiction ofthis issue on appeal because the September 10, 2004, order wasnot a new order of contempt imposing sanctions. We disagree. The September order, by its very terms, effectively reimposed thesanctions for failing to produce the copies that were imposed inthe July 2002 order. Because the contempt order imposed sanctions, the order was immediately appealable. Depew, 246 Ill.App. 3d at 967, 616 N.E.2d at 677.

                        Turning to the merits, defendant argues that the civil-contempt finding of September 10, 2004, was punitive, not coercive in nature, in that the court attempted to punish him for hiscounsel's lawful refusal to produce the documents prior toappeal. Based on the case cited by defendant, People v. Marcisz,32 Il. App. 3d 467, 334 N.E.2d 737 (1975), aff'd in part & rev'din part, 65 Ill. 2d 206, 357 N.E.2d 477 (1976), it appearsdefendant is arguing that because the contempt finding waspunitive, it was actually criminal contempt, which entitled himto certain constitutional protections. In addition, a large partof defendant's argument is that the trial court and the trusteesof the Estate could have and should have obtained the documentsby filing the appropriate motion before the court presiding overthe grand jury.

                        However, defendant has forfeited these arguments by notraising them in the earlier appeal. Under the law of the casedoctrine, if a party fails to challenge a legal decision when ithas the opportunity to do so, he forfeits the right to challengethe decision at a later time and the decision becomes the law ofthe case for future stages of the same litigation. Liccardi v.Stolt Terminals, Inc., 178 Ill. 2d 540, 547, 687 N.E.2d 968, 972(1997); Reich v. Gendreau, 308 Ill. App. 3d 825, 829, 721 N.E.2d634, 637 (1999). Because defendant could have raised the issuesof criminal versus civil contempt and the issue of the court ortrustees obtaining the documents from the grand jury earlier, hehas forfeited his right to raise them now.

                        Even if these issues were not forfeited, defendant alsofails to indicate why the fact that the trial court and trusteescould have obtained the documents elsewhere is relevant to thefinding of contempt. The court directed defendant to provide tothe court any retained copies in his possession or in the possession of anyone subject to his control or direction.

                        In addition, the contempt order was properly classifiedas civil rather than criminal contempt. The trial court imposedthe sanction incarcerating defendant until he complied with thecourt's order, thereby making the sanction coercive rather thanpunitive. See Sanders v. Shephard, 163 Ill. 2d 534, 540, 645N.E.2d 900, 903 (1994) (holding that conditional, renewablesanction imprisoning father until he produced his missing daughter was coercive rather than punitive where father could "win hisrelease at any time by complying with the order of the court").

                        Finally, defendant also appears to claim that he purgedhimself of the contempt and that the trial court improperly foundthat defendant attempted to purge himself by proxy. We disagree.

                        At the July 2004 hearing, counsel for defendant presented evidence about the documents produced in attempt to purgedefendant of contempt. Defendant would not, however, testifythat he had complied with the trial court's order to produce theEstate records or answer any questions regarding his attempts tocomply with the court's order, instead invoking the fifth amendment. Yet, defendant forfeited his ability to invoke the fifthamendment by failing to raise it in the first appeal. SeeLiccardi, 178 Ill. 2d at 547, 687 N.E.2d at 972 (failing tochallenge a legal decision when having the opportunity to do soforfeits the right to challenge the decision at a later time inthe same litigation). Additionally, we question whether defendant could even assert the fifth amendment privilege. Defendant,as executor of the Estate, was an agent of the court and answerable to the court as a fiduciary. As such, defendant was notacting in a personal capacity and the documents were not personalrecords. See, e.g., United States v. Hankins, 565 F.2d 1344,1349 (5th Cir. 1978) (holding that executor, acting in a representative capacity and as an officer of the court, could notclaim a fifth amendment privilege to papers incident to theestate because the papers were not "personal and private").

                        Consequently, defendant was required to testify that heproduced all the records requested (or gave them all to hisattorney and no other persons), that he no longer had any recordsin his possession, and that no other person subject to hiscontrol or direction had records in his or her possession. Clearly, he did not purge himself of contempt in the trial court. The court's finding therefore was not an abuse of discretion oragainst the manifest weight of the evidence.

C. Failure To Provide Surety

                        In June 2002, the trial court ordered defendant toobtain a surety on his June 1985 $2 million bond. In July 2002,the court found defendant in direct civil contempt for failing todo so. In July 2004, following the first appeal, the court againfound defendant failed to comply with the court's orders butreserved sanctions. The September 10, 2004, order found that thecontempt continued and effectively reimposed the sanctions byadopting the July 2002 sanctioning order. Consequently, despiteappellees' arguments to the contrary, this court has jurisdictionover this issue of the appeal. See Depew, 246 Ill. App. 3d at967, 616 N.E.2d at 677.

                        Defendant appears to argue that because a judgment hasnow been entered against him in the amount of $5,222,522.10, hewill be unable to obtain a surety on his $2 million personal bondbecause a surety would then immediately be obligated to pay $2 million toward the judgment. A surety is "[a] person who isprimarily liable for the payment of another's debt or the performance of another's obligation." Black's Law Dictionary 1482 (8thed. 2004). Therefore, defendant argues the contempt order is"past punishment" for not obtaining a surety prior to the entryof the judgment and "present punishment" for failing to pay $2million of the judgment after entry of the judgment.

                        Defendant further argues that his failure to provide asurety was not wilful. Defendant appears to claim that he cannotobtain a surety because he would have to pay $2 million of thejudgment in order to obtain a surety in that amount. Accordingto defendant, he cannot demonstrate his inability to pay becauseany testimony he might offer "would tend to incriminate him." Hesuggests that the appellees could have shown--but did not--wilfulness by obtaining defendant's prior tax returns or financial statements by way of a citation proceeding. We disagree.

                        Under the circumstances herein, the trial court properly identified its contempt order as civil rather than criminalcontempt. The trial court imposed a sanction incarceratingdefendant until he complied with the court's order, therebymaking the sanction coercive rather than punitive. See Sanders,163 Ill. 2d at 540, 645 N.E.2d at 903.

                        The purpose of a civil contempt order is to bring aboutcompliance with the court's order. City of Mattoon v. Mentzer,282 Ill. App. 3d 628, 636, 668 N.E.2d 601, 606 (1996). Consequently, a party held in civil contempt must be given a means bywhich he can purge himself of contempt after he has been imprisoned. Mentzer, 282 Ill. App. 3d at 636, 668 N.E.2d 606. Thisimplies that the party must possess the power and ability topurge himself--"contempt will not lie when the alleged contemnor,through no fault of his own, is in a position where he cannotcomply with the order of the court." In re Estate of Shlensky,49 Ill. App. 3d 885, 895, 364 N.E.2d 430, 438 (1977) (findingthat the trial court imposed a civil sanction for the respondent's failure to release and turn over various assets andaccounts because the sanction could be terminated upon compliance). Moreover, a sanction must be vacated when "it is evidentthat the sanction imposed is no longer fulfilling its original,coercive function." Sanders, 163 Ill. 2d at 541, 645 N.E.2d at904.

                        The contemnor bears the burden of demonstrating thatthe sanction has lost its coercive effect and will not cause himto comply with the order. Sanders, 163 Ill. 2d at 541, 645N.E.2d at 904. The contemnor also bears the burden of provingthat failure to comply with the court's order was not wilful. People v. Thomas, 220 Ill. App. 3d 110, 128-29, 580 N.E.2d 1353,1366 (1991). To prove that a failure to pay was not wilful, adefendant must show that he does not have the money and that hedid not wrongfully dispose of money or assets by which he couldhave made payment. In re Marriage of Logston, 103 Ill. 2d 266,285, 469 N.E.2d 167, 175 (1984). A finding of contempt is aquestion of fact that will not be reversed on appeal absent anabuse of discretion or unless it is against the manifest weightof the evidence. In re Marriage of Spent, 342 Ill. App. 3d 643,653-54, 796 N.E.2d 191, 200 (2003) (affirming trial court'sfinding that ex-wife's failure to permit ex-husband to havevisitation with the parties' minor child was wilful).

                        Defendant bore the burden of demonstrating that thecontempt order lost its coercive effect, and/or that his noncompliance with the order was not wilful. See Mentzer, 282 Ill.App. 3d at 636, 668 N.E.2d at 606; Sanders, 163 Ill. 2d at 541,645 N.E.2d at 904. He failed to do so.

                        We first note that defendant did not provide a transcript of the September 10, 2004, hearing in the record onappeal. In fact, in his reply brief, defendant chastised appellees' reference to the September 10, 2004, transcript (whichappellees had attached to their motion to dismiss the appealwithout first seeking leave to supplement the record) because thetrial court did not include it as part of the record on appeal. Defendant is incorrect. The burden is not on the trial court toprovide a complete record. The appellant bears the burden ofpresenting a record that is adequate for a determination of theissues raised. People v. House, 202 Ill. App. 3d 893, 908, 560N.E.2d 1224, 1234 (1990); Palmisano v. Connell, 179 Ill. App. 3d1089, 1099, 534 N.E.2d 1243, 1250 (1989). Defendant, as appellant, should have provided the September 10, 2004, transcript onappeal. When a transcript is not included in the record onappeal, the reviewing court has no basis for holding that a trialcourt abused its discretion in denying the motion. Robinson v.Robinson, 140 Ill. App. 3d 610, 613, 488 N.E.2d 1349, 1352(1986); see also House, 202 Ill. App. 3d at 908, 560 N.E.2d at1235 (noting that "[a]bsent a sufficient record, the court neednot consider the allegation").

                        Nonetheless, under the authority of Supreme Court Rule329 (134 Ill. 2d R. 329), we amend the record on appeal toinclude the September 10, 2004, transcript, a copy of which wasattached to appellees' motion to dismiss. As the transcriptreflects, no evidence was presented at the hearing, but the trialcourt stated its ruling on the "sole issue [of] whether or not[defendant] has purged himself of contempt." The court foundthat defendant had not purged himself of contempt and that theonly reasons offered by defendant as to why he had not done sowere based on arguments previously denied by the court and/orappellate court. The court also rejected defendant's attempt topurge himself through the efforts of the paralegal. We find thatthe reasoning of the court was not against the manifest weight ofthe evidence or an abuse of discretion.

                        Specifically, the evidence presented at the July 9,2004, hearing included an affidavit dated February 5, 2004, froma paralegal asserting that she contacted various insuranceagencies to obtain a surety for defendant. The agency responsesvaried from an indication that the agency would not issue asurety to other agencies that agreed to fax or mail an application.

                        The other evidence presented to the trial court included a copy of an application from Western Surety Company.Defense counsel claimed that completing the financial statementin the application would constitute a waiver of his fifth amendment right against self-incrimination and that defendant couldnot comply with various paragraphs under the indemnity section ofthe application. Defendant refused to testify at the July 2004hearing, invoking the fifth amendment right against self-incrimination.

                        Even assuming defendant could prove his compliance orinability to comply with the order by proxy, the paralegal'saffidavit does not establish that no agency would issue a surety,as several indicated they would mail or fax an application. Further, this court previously rejected defendant's fifth amendment claim that he could not complete the surety without incriminating himself. Most telling, however, is that defendant presented no evidence of his attempts to comply with the court'sorder or that his failure to comply was not wilful.

                        Finally, although defendant argues on appeal that thetrial court "punished" him for not paying $2 million of thejudgment (which, according to defendant, would then have allowedhim to obtain a surety or obviated the need for one), defendantpresented no evidence to the court that he was unable to pay $2 million of the judgment or that he had not wrongfully disposedof assets by which he could have paid it. On these facts, thecourt's contempt finding was not punitive, but coercive, was notagainst the manifest weight of the evidence, and was not an abuseof discretion. Defendant can purge himself of contempt by eitherobtaining a surety as directed by the court or by demonstratinghis inability to do so.

D. Sanctions Not Appropriate

                        In response to appellee's motion to dismiss, defendantfiled a motion for sanctions arguing that the motion was frivolous. Because we have found the motion to dismiss partiallymeritorious, the motion is denied.

E. Additional Motions

                        Prior to oral argument in this matter, defendant fileda motion to supplement the record to include a transcript ofAugust 1, 2005, proceedings in People v. Cochonour, CumberlandCounty case No. 03-CF-01, and appellees filed a motion to supplement the record to include a transcript from an August 12, 2005,hearing in the underlying Estate case in the trial court. Parties may supplement the record on appeal where there arematerial omissions or inaccuracies or if the record is insufficient to present fully and fairly the questions involved. 134Ill. 2d R. 329; People v. Tackett, 130 Ill. App. 3d 347, 348, 474N.E.2d 451, 452 (1985). Because the documents are not necessaryfor the resolution of this appeal, the motions to supplement aredenied. Defendant also filed a motion to stay the body attachment, which is denied.

                        As a final note, defense counsel, Rick Halprin, madenumerous disrespectful comments in open court and in several ofthe pleadings. These include comments at the July 9, 2004,hearing referencing the "Judge Pacey rule of law," accusationsthat the judge believed he was entitled to rewrite the UnitedStates Constitution, references to the judge's "personal agenda,"and the comment at the September 10, 2004, hearing that "[t]hisis a joke." Defendant's motion for an order permitting "secularreview" contains the following passage:

"This court divines a higher duty appointing itself GUARDIAN OF PROBATE LAW. Calmly viewed[,] this [c]ourt has created amorality play in which evil is represented by[defendant] and his attorney Rick Halprin(the devil incarnate). Halprin and [defendant's] heresy is confirmed by their temporalreliance on the [f]ifth [a]mendment's privilege against self-incrimination embodied inthe Constitution of the United States.

Thus this [c]ourt[,] confronted with apotential forensic disaster, to wit the destruction of hundreds of years of case andstatutory probate law, experienced an epiphany. This [c]ourt found a higher power thanthe [c]onstitution, to wit its authority tosupervise appointees. It is, therefore,understandable that this [c]ourt[,] havingfound its power to be inviolate[,] wouldnaturally refuse to be cowed by such flimsyauthority as the Constitution of the UnitedStates. Hence, this [c]ourt[,] as evidencedby its findings will not be deterred from itsmission as keeper of the faith, the Grailthat is probate law."

(Rick Halprin did not appear at oral arguments but sent hisfellow attorney, who did not handle this matter before the trialcourt.) The trial court showed enormous restraint in not sanctioning attorney Halprin.                                            

III. CONCLUSION

                        For the reasons stated herein, we dismiss defendant'sappeal relating to the order of contempt for failing to provide afinal account and inventory and affirm in all other respects.

                        Dismissed in part and affirmed in part.  

                        APPLETON and KNECHT, JJ., concur.