Maurice J. Salem v. United Central Bank , 778 F.3d 620 ( 2015 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-1907
TRADE WELL INTERNATIONAL,
Plaintiff,
v.
UNITED CENTRAL BANK,
Defendant-Appellee.
APPEAL OF MAURICE J. SALEM,
Appellant.
____________________
Appeal from the United States District Court for the
Western District of Wisconsin.
No. 12-cv-701-wmc — William M. Conley, Chief Judge.
____________________
ARGUED NOVEMBER 19, 2014 — DECIDED FEBRUARY 10, 2015
____________________
Before WOOD, Chief Judge, and KANNE and TINDER, Circuit
Judges.
WOOD, Chief Judge. Maurice Salem, a member of the New
York Bar, was admitted pro hac vice in the U.S. District Court
for the Western District of Wisconsin in connection with
some commercial litigation. Salem represents Trade Well
2 No. 14-1907
International, a Pakistani company, which was suing United
Central Bank (the Bank) for damages and the return of
property that was left behind in a hotel that the Bank owned.
Problems arose when Salem filed a Notice of Lien on behalf
of his client; the Notice stated that there was a lien on the
hotel and purported to provide notice of the litigation. The
district court, concluding that the Notice was defective in
several ways, held Salem in contempt of court, revoked his
pro hac vice status, barred him from practicing in the Western
District of Wisconsin for three years, and imposed a $500
fine. Salem, representing himself, has appealed. The Bank
argues that we have no jurisdiction to entertain his appeal,
but we conclude otherwise. On the merits, we find that the
court’s orders must be set aside: nothing Salem did
warranted a finding of contempt, nor these sanctions.
I
Because we are reversing the district court in spite of the
substantial discretion the court possesses in this kind of mat-
ter, we think it useful to include a full explanation of the un-
derlying facts. Trade Well is a company that provides fur-
nishings for hotels. In February 2010, it entered into a lease
with Dells Estate LLC, a Wisconsin company that owned a
hotel called the Dells Island Resort (the Hotel). The lease
agreement states that Trade Well was to provide certain
goods and movable items to the Hotel for four years, for a
fee of $250,000 per year. An inventory of the items to be pro-
vided lists furnishings, various linens (mattresses, curtains,
sheets, towels, bath mats, and table cloths), fixtures (chande-
liers, wall-mounted lamps, Jacuzzis, an LED light, signs), a
reservation system, and remodeling services for several
rooms. The agreement specified that it is “binding upon” the
No. 14-1907 3
parties’ successors and that at the termination or expiration
of the lease, “any or all goods/movable properties … shall
constitute the property of and be handed over to” Trade
Well.
Dells Estate had financed its purchase of the Hotel with a
mortgage from United Central Bank, a Texas corporation. It
defaulted on the mortgage in 2010, shortly after Trade Well
had provided the items called for by the lease. The Bank
eventually obtained a foreclosure judgment and purchased
the Hotel at a sheriff’s sale in 2012. At that time, all of the
leased items were still inside the Hotel. Because the Bank did
not want to hold the Hotel indefinitely, it promptly started
looking for a buyer. Trade Well demanded the return of the
leased property, but the Bank refused.
When its demands were spurned, Trade Well sued the
Bank for replevin in federal court (invoking the diversity ju-
risdiction, 28 U.S.C. § 1332). As a preliminary matter, it
moved for an order compelling the Bank to permit inspec-
tion of the leased items for purposes of taking an inventory
and ensuring proper storage. The district court granted that
motion. The inspection revealed that many of the items were
missing, some were damaged, and some were moldy.
In October 2013 (approximately a year after the suit was
filed), Trade Well moved to stay the Bank’s sale of the Hotel.
Salem, its attorney, informed the court that he recently had
learned from a potential buyer, Edward Krause, that the
Bank was trying to sell the Hotel along with the leased items.
Trade Well argued that a stay was warranted, because a sale
to a third party would transfer possession of the leased items
and would complicate matters.
4 No. 14-1907
The Bank opposed the motion and asked instead that the
court order Trade Well to take possession of the latter’s
property. Critically, however, the Bank’s motion was express-
ly limited to “personal property”; the Bank maintained that
it owned the hotel’s fixtures, including some installed Jacuz-
zis. It argued in the alternative that Trade Well should pay it
for storing the personal property until it was removed and
post a bond for the estimated storage costs. The Bank did
not, however, file a counterclaim.
Trade Well responded that its motion was intended only
to “stop the transfer of possession of the damaged equip-
ment” (emphasis added), because a transfer would make it
“very difficult, or impossible to determine who caused the
damage.” Trade Well also charged that the Bank had con-
verted some of the leased items into fixtures (though it did
not specify which ones it meant). Once again, Salem filed a
supporting declaration, in which he stated that Trade Well
sought only to take immediate possession of undamaged
goods, while leaving the damaged items and fixtures in
place pending resolution of the suit. While these motions
were pending, Trade Well amended its complaint to add
claims of negligence and conversion. It repeated its asser-
tions that the Bank had damaged Trade Well’s property
through improper storage and had converted some of it.
At that point, the district court ruled on the pending mo-
tions. It stayed the sale of the hotel for 30 days so that Trade
Well could remove everything listed in the inventory at-
tached to its complaint, with the exception of the Jacuzzis
and materials related to the remodeling. The order contin-
ued, “All items on [the inventory] other than the Jacuzzis
and remodeling that have not been removed within 30 days
No. 14-1907 5
shall be deemed abandoned by Trade Well absent an exten-
sion of this deadline by the court upon good cause shown.”
About two weeks later, Trade Well asked the court to ex-
tend the deadline for moving the items and to compel the
Bank to pay for the moving and storage of damaged items.
Salem supported the latter part of the motion with a declara-
tion and copies of emails showing that he had contacted
three moving companies, none of which would take the job
because some items were moldy. In an order issued in Janu-
ary 2014, the court extended the moving deadline by 21
days, but it denied the request to compel the Bank to pay for
moving and storage. This order clarified that Trade Well was
not required to pick up its personal property; it could also
opt to abandon the property and then claim damages with
respect to the abandoned property, subject to the Bank’s de-
fense of failure to mitigate. Trade Well chose the second op-
tion and left all of the personal property in the hotel.
This is where matters stood at the time the issues in-
volved in this appeal arose. We take the facts from a declara-
tion that Salem filed in March 2014 in response to an inquiry
from the district court, as we do not understand anything
material to be contested. On March 12, Salem went to the
Register of Deeds in Sauk County, Wisconsin, intending to
file a “Lis Pendence/Lien” on the hotel. The Register of
Deeds is an elected county official; Wisconsin law provides
that any plaintiff who brings “an action where relief is de-
manded affecting … real property which relief might con-
firm or change interests in the real property” must file a lis
pendens “in the office of the register of deeds of each county
where any part [of the real property] is situated.” WIS. STAT.
§ 840.10(1)(a). Fixtures are classified as real property by Wis-
6 No. 14-1907
consin law. See Wis. Dep’t of Revenue v. A. O. Smith Harvestore
Prods., Inc., 240 N.W.2d 357, 360–62 (Wis. 1976); Premonstra-
tensian Fathers v. Badgers Mut. Ins. Co., 175 N.W.2d 237, 239
n.1 (Wis. 1970). When a lis pendens is filed, “a subsequent
purchaser or encumbrancer [is] bound by the proceedings in
the action to the same extent and in the same manner as if a
party thereto.” Belleville State Bank v. Steele, 345 N.W.2d 405,
407 (Wis. 1984) (citing WIS. STAT. § 840.10(1)). The statute
specifies that it applies to actions filed in all courts in Wis-
consin, “including United States district courts.” WIS. STAT.
§ 840.10(4).
The Register of Deeds, Brent Bailey, at first refused to ac-
cept Salem’s filing, telling him that he needed a Wisconsin
attorney to file the document. That advice was not accurate.
In fact, the statute says only that a lis pendens that is prepared
by a member of the State Bar of Wisconsin need not be au-
thenticated. Id. § 840.10(1)(b). It does not prohibit filings
submitted by others. They need only authenticate the docu-
ment; this can be done by “[a]ny public officer entitled by
virtue of his or her office to administer oaths, and any mem-
ber in good standing of the State Bar of Wisconsin.” Id.
§ 706.06(2). At the time, however, no one spotted the error.
Salem responded instead by accurately informing Bailey that
the district court had admitted him pro hac vice. With that in-
formation in hand, Bailey said that Salem could file the doc-
ument himself so long as he had “a number from the Court
identifying him.” Not sure what number to use, Salem called
the clerk of the district court, who told him that the only
identifier for an attorney admitted pro hac vice is the date of
admission and the attorney’s name. Salem furnished that in-
formation to Bailey, who then accepted the paper.
No. 14-1907 7
The actual document Salem prepared, and Bailey filed, is
entitled “Notice of Lien.” It refers to the Wisconsin statute
governing construction liens. See id. §§ 779.01, 779.06. The
content of Salem’s notice, however, more closely resembles a
lis pendens under § 840.10 than a lien under § 779.06. As re-
quired by § 840.10(1)(a), Salem’s Notice identifies the parties
to the litigation, explains the purpose of the action (to recov-
er “two million dollars in damages”), and describes the real
estate affected. The stated purpose of his Notice—“to give
notice to subsequent purchasers of this property, that the
owner’s right to sell the property to you may be limited by
the pending action”—also suggests that in substance the No-
tice was a lis pendens. The Wisconsin Supreme Court has held
that “the sole purpose of a lis pendens is to give constructive
notice to third parties of pending judicial proceedings in-
volving real estate.” Kensington Dev. Corp. v. Israel, 419
N.W.2d 241, 245 (Wis. 1988). That device does not create or
serve as a lien on real property. It is also notable that a con-
struction lien must be filed with the clerk of the circuit court,
not with the Register of Deeds. WIS. STAT. § 779.06(1).
The Bank’s lawyer asked Salem to withdraw the Notice,
but Salem refused. The Bank then asked the district court to
strike the Notice, revoke Salem’s pro hac vice admission, and
assess costs and attorney’s fees jointly against Trade Well
and Salem for any amounts relating to the Notice. The Bank
argued that it was about to close on its sale of the Hotel and
asserted, without citing any legal authority, that the relief it
requested was proper because “the Closing cannot occur
without removal of the Notice of Lien from the Real Estate.”
The Notice was invalid, the Bank said, because it was either
an improper claim for a construction lien, or it was a lis pen-
8 No. 14-1907
dens that was ineffective because it had neither been pre-
pared by a member of the Wisconsin Bar nor authenticated.
The district court took up the Bank’s motion in a tele-
phone conference, during which it ordered Salem to file a
response to the Bank’s motion and to show cause why he
“should not be held in contempt for filing the Notice without
any arguable right to do so.” In response, Salem filed the
declaration we have been discussing. He explained that he
had recorded the document in order to protect Trade Well’s
interests after he had learned that the Bank was on the brink
of being taken over by the Federal Deposit Insurance Corpo-
ration and was about to sell the Hotel at a below-market
price through an insider deal. He also maintained (consist-
ently with his position that this was a lis pendens) that there
was no basis for the Bank’s contention that the Notice pre-
vented it from selling the Hotel to a willing buyer.
The district court was unmoved by Salem’s explanation
and held him in contempt of court. It concluded that Trade
Well had no good-faith basis to seek a construction lien be-
cause it had offered no evidence that it furnished materials
or labor for improvements to the Hotel within six months of
filing the Notice, as required by Wisconsin Statutes
§ 779.06(1). Even if the Notice were construed as a lis pen-
dens, the court continued, the filing was unjustified because
the action involved “personal, rather than real, property.”
The judge was also offended by Salem’s invocation of his pro
hac vice status in connection with his filing of the Notice,
deeming it an “outrageous” abuse. Invoking its inherent au-
thority, the court revoked Salem’s pro hac vice status, referred
him to the State Bars of Wisconsin and New York for disci-
plinary action, and fined him $500. Although the Bank had
No. 14-1907 9
not said anything about a counterclaim, the court granted
“leave to file a counterclaim seeking a temporary restraining
order, preliminary injunction, permanent injunction and
damages related to the filing of the ‘lien.’” Last, the court or-
dered Trade Well to retain new counsel within ten days and
either to withdraw the Notice within seven days or “file a
bond in the full amount of the sale price of the hotel.”
Salem responded with a motion for reconsideration, in
which he argued that he could not be held in contempt be-
cause he had not violated a court order. He also moved to
file an appearance, explaining that he had become a “duly
admitted attorney” in the court after the revocation of his pro
hac vice status (he did not say how). The court denied the
motion to reconsider, but in so doing it hedged on the nature
of the $500 fine, which it now described as imposed pursu-
ant to its inherent powers for conduct “far below” the stand-
ards it expected from attorneys appearing before it. The
court did not withdraw the finding of contempt, or any of
the sanctions that accompanied it. Instead, it clarified that
the $500 was payable directly to the Bank. It then imposed
additional sanctions against Salem, barring him from obtain-
ing pro hac vice status in the district court for the next three
years. The judge added that, to the extent that the fine need-
ed to be based on a violation of a court order, he could iden-
tify two such violations: (1) Salem’s failure to justify his filing
of the Notice, and (2) his continuing to represent Trade Well
in the litigation by filing two motions on the company’s be-
half and seeking full admission to the bar of the Western Dis-
trict of Wisconsin “by manipulating an unsuspecting deputy
clerk.”
10 No. 14-1907
Salem filed a notice of appeal within 30 days of these or-
ders. Three months later, the Bank filed a counterclaim
against Trade Well for slander of title; it sought damages,
costs, attorney’s fees, and a declaratory judgment that the
Notice Salem had filed was void. Trade Well never hired
new counsel, and so the Bank moved for default under Fed-
eral Rule of Civil Procedure 55(a). In response, Salem filed
two briefs as an “interested party.” In them, he explained
that he is Trade Well’s only authorized agent in the United
States, and that the company had been trying to find new
counsel. The judge struck Salem’s briefs and fined him an-
other $500, again payable to the Bank. Ultimately, the court
held a hearing to determine the amount of damages and en-
tered a default judgment for the Bank in the amount of
$30,304.67. Final judgment in the case was entered on Octo-
ber 24, 2014.
II
The only part of this messy case that is before us is Sa-
lem’s appeal from the various measures the court took
against him. He contends that they must be set aside, for the
reason that the court had neither a legal nor a factual basis
for its actions. The Bank argues that we lack appellate juris-
diction, because the contempt orders were not final and ap-
pealable at the time Salem filed his notice of appeal. We can
dispose of the jurisdictional argument quickly. An adjudica-
tion of contempt is immediately appealable by a nonparty
such as Salem. United States v. Dowell, 257 F.3d 694, 698 (7th
Cir. 2001); United States v. Myers, 593 F.3d 338, 344 & n.9 (4th
Cir. 2010). Furthermore, since the case is now over, our juris-
diction is also secure because a premature notice of appeal
takes effect when the final judgment is entered. FED. R. APP.
No. 14-1907 11
P. 4(a)(2). The only part of Salem’s case not before us is the
propriety of the second $500 sanction imposed against him,
because he did not amend his notice of appeal to include
that. We are also not concerned with any possible appeal by
Trade Well contesting the default judgment or the finding of
a failure to prosecute.
On the merits, we begin by observing that it is unclear
whether the district court meant to hold Salem in criminal
contempt or civil contempt. See Mañez v. Bridgestone Firestone
N. Am. Tire, LLC, 533 F.3d 578, 589 (7th Cir. 2008) (describing
different ways to characterize a fine imposed by a district
judge). Salem splits it down the middle: he suggests that the
$500 fine was under the civil contempt authority, but that the
revocation of his pro hac vice status and the three-year bar on
readmission are criminal contempt sanctions. He relies on
the Supreme Court’s decision in International Union, United
Mine Workers of America v. Bagwell, 512 U.S. 821 (1994), in
which the Court explained that “a contempt sanction is
considered civil if it is remedial, and for the benefit of the
complainant,” but criminal if it is punitive. Id. at 827–28
(internal quotation mark omitted). The sanctions relating to
Salem’s admission to practice do seem punitive, rather than
coercive or compensatory. It is hard to pin down the $500
fine. Although it was initially imposed as part of the
contempt order, the judge’s statements in connection with
the motion for reconsideration might imply that the fine was
a penalty for misconduct that did not qualify as contempt.
For our purposes, the ultimate characterization does not
matter, because the sanctions cannot stand no matter how
they are classified. Salem was punished for out-of-court
conduct, and so any alleged contempt was indirect. See Bag-
12 No. 14-1907
well, 512 U.S. at 827 n.2. If the court meant to invoke criminal
contempt, the sanctions are improper because the judge nei-
ther gave Salem notice that he was being charged with crim-
inal contempt, nor asked the government to prosecute the
contempt. See 18 U.S.C. § 401; FED. R. CRIM. P. 42(a); see also
United States v. Britton, 731 F.3d 745, 749–50 (7th Cir. 2013).
The order is no better, understood as a civil contempt
measure. Before holding a person in civil contempt, a district
court “must be able to point to a decree from the court which
sets forth in specific detail an unequivocal command which
the party in contempt violated.” Mañez, 533 F.3d at 591
(quoting Grove Fresh Distribs., Inc. v. John Labatt, Ltd., 299 F.3d
635, 642 (7th Cir. 2002)) (internal quotation marks omitted);
see also Hornbeck Offshore Servs., L.L.C. v. Salazar, 713 F.3d
787, 792 (5th Cir. 2013); John T. ex rel. Paul T. v. Del. Cnty. In-
termediate Unit, 318 F.3d 545, 552 (3d Cir. 2003). The problem
is not that the district judge failed to point to the particular
order or orders that Salem violated when he filed the Notice;
it is that no such order exists.
The Bank suggests that the district court did not hold Sa-
lem in contempt, but rather imposed sanctions under its in-
herent power to correct abuse of proceedings. The Supreme
Court, however, has cautioned that the use of inherent pow-
ers should be “exercised with restraint and discretion.”
Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991); see also Law
v. Siegel, 134 S. Ct. 1188, 1194 (2014) (“Courts’ inherent sanc-
tioning powers are … subordinate to valid statutory direc-
tives and prohibitions.”). At a minimum, the court must be
sure of both the factual and legal basis on which it is acting.
Here, the record reveals misunderstandings on both fronts.
The judge sanctioned Salem “for filing the Notice without
No. 14-1907 13
any arguable right to do so.” That conclusion rested princi-
pally on the proposition that Trade Well had claimed an enti-
tlement only to personal property, not to real property. But
Trade Well’s claim was not so limited. Its original complaint,
supplemented by the attached inventory, covered both fix-
tures and personal property. Fixtures, as we already have
noted, are considered to be real property under Wisconsin
law. And even if the character of the leased items Trade Well
was trying to protect was not obvious at the outset, all ambi-
guities were cleared up after it claimed an entitlement to fix-
tures in its amended complaint. The district court recognized
as much in its earlier order setting a deadline for Trade Well
to remove its personal property; that order specified that,
unlike the personal property, the Jacuzzis and “remodeling”
were to remain in the Hotel.
Moreover, even though the judge correctly noted that
Trade Well could not file a claim for a construction lien be-
cause it would be untimely, see WIS. STAT. § 779.06(1), he
went too far when he opined that “no construction is in-
volved in this case.” To the contrary, the record indicates that
Trade Well had done some remodeling in the Hotel. A con-
struction lien may be obtained by any person who “furnish-
es … materials … used or consumed for the improvement of
land.” Id. § 779.01(3). The term “materials” includes, among
other things, “construction materials” and “fixtures.” Id.
§ 779.01(2)(bm). The court did not explain why none of the
items Trade Well had provided fit that definition.
The court’s central mistake, however, was its conclusion
that Trade Well had no basis for filing a lis pendens. That is
what the Notice most closely resembled, and because the
underlying litigation between Trade Well and the Bank in-
14 No. 14-1907
volved real property (in the form of fixtures), Trade Well was
compelled by statute to file its notice in the office of the Reg-
ister of Deeds. Id. § 840.10(1)(a). The references in Salem’s
Notice to the statute on construction liens and its use of the
word “lien” are, at best, evidence of a mistake or maybe
carelessness on Salem’s part. Negligence, however, is not
enough to support a finding of bad faith. See Grochocinski v.
Mayer Brown Rowe & Maw, LLP, 719 F.3d 785, 799 (7th Cir.
2013); Maynard v. Nygren, 332 F.3d 462, 471 (7th Cir. 2003).
And sanctions under the court’s inherent power should not
be imposed unless there is bad-faith conduct or willful diso-
bedience of an order. Grochocinski, 719 F.3d at 799. Neither is
present here.
Both the judge and the Bank realized that Salem’s Notice
was most likely a poorly drafted or hasty lis pendens. That is
why the judge asserted that Salem had “abused … his pro hac
vice privileges” by filing the Notice as a non-member of the
Wisconsin Bar and without proper authentication. Once
again, however, this record does not support a finding of the
necessary bad faith to support sanctions. It is not even clear
to us that the court’s understanding of Wisconsin law was
correct. Salem was candid with the Register of Deeds of Sauk
County, and the Register was the elected official responsible
for these filings. Neither the court nor the Bank has cited any
authority, nor can we find any, supporting the proposition
that the Register lacked the discretion to accept Salem’s No-
tice, along with the identifying information Salem furnished.
(Salem represents that he also volunteered to find a local
lawyer, if that was necessary, but he was told that he did not
need to do so.) In addressing Salem’s motion for reconsidera-
tion, the court stated that Salem had “disingenuously” at-
tempted to blame his problems on the Sauk County Register,
No. 14-1907 15
but it did not explain why Salem’s account was disingenu-
ous. No one has ever accused Salem of lying about what
took place. It is possible that the Register did not understand
his own authority, but it is hard to see how that translates
into misconduct by Salem. Nothing indicates that Salem’s
reliance on the Register’s advice was in bad faith.
Finally, the court’s stated reason for the first $500 fine
strikes us as inadequate to justify that measure. As we have
explained, Salem’s filing of the Notice was justified, and so
the fine cannot be based on the notion that it was not. Alter-
natively, the court tried to justify the fine on the basis of the
papers Salem lodged with the court after his pro hac vice sta-
tus was revoked. But those actions could not justify the fine,
because it was imposed while Salem was still permitted to
appear in the case and before he filed those later motions.
III
Salem probably made mistakes in this case that a mem-
ber of the Wisconsin Bar would have avoided, but his con-
duct did not justify the measures that the district court took
against him. We therefore VACATE the orders before us hold-
ing Salem in contempt and imposing sanctions.