Daewoo International v. Monteiro , 2014 IL App (1st) 140573 ( 2015 )

2014 IL App (1st) 140573
No. 1-14-0573
Opinion filed December 12, 2014
FIFTH DIVISION
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
DAEWOO INTERNATIONAL, ) Appeal from the Circuit Court
) of Cook County.
)
Petitioner-Appellee, )
)
v. ) No. 13-L-000938
)
LUIS EDUARDO MONTEIRO, ) The Honorable
) Eileen M. Brewer,
Respondent-Appellant. ) Judge, presiding.
JUSTICE GORDON delivered the judgment of the court, with opinion.
Justices McBride and Reyes concurred in the judgment and opinion.
OPINION
¶1 The underlying case concerns a dispute over petitioner Daewoo
International's (Daewoo's) payment of allegedly $14.5 million to American
Metals Trading, L.L.P. (AMT LLP), for pig iron that Daewoo never received.
No. 1-14-0573
In respondent's brief to this court, he acknowledges that "Daewoo had paid for
[the pig iron] but had not received [it]."
¶2 In December 2012, Daewoo initiated an arbitration proceeding in New
York against AMT LLP and, in anticipation of arbitration, obtained an order of
attachment from the supreme court of New York for $16.5 million. On January
17, 2013, the supreme court of New York entered another order granting
Daewoo's motion to obtain discovery and take depositions in aid of the
attachment.
¶3 On January 28, 2013, Daewoo filed in the circuit court of Cook County a
petition requesting the court to issue subpoenas to AMT LLP's four members
and directors, Luis Eduardo Monteiro and his three brothers, which the circuit
granted on January 29, 2013. Eleven months later, in December 2013,
Monteiro filed a motion to vacate claiming that Daewoo's petition had failed to
satisfy the statutory requirements needed for subpoenas in an out-of-state
action. On January 24, 2014, the circuit court denied Monteiro's motion,
ordered him to appear for deposition, and imposed sanctions if he failed to
comply. It is this January 24, 2014, order that Monteiro named in his February
13, 2014, notice of appeal.
¶4 In his brief to this court, Monteiro does not argue that the circuit court
lacks personal jurisdiction over him; rather, he claims only that Daewoo's
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petition for a subpoena failed to comply with the technical requirements of
Illinois Supreme Court Rule 204(b) (eff. Dec. 16, 2010). He argues that
personal jurisdiction and Rule 204(b) requirements are two entirely separate
issues. The rule permits a person who is authorized by the laws of another state
to take a deposition to "petition the circuit court in the county in which the
deponent resides *** or is found for a subpoena to compel the appearance of
the deponent." Ill. S. Ct. R. 204(b) (eff. Dec. 16, 2010).
¶5 On appeal, Monteiro claims that Daewoo failed to allege and prove
Monteiro's residence or location in Illinois, as Rule 204(b) required. Although
Monteiro states in his appellate brief that "as of December 2013 [he] was living
in Rio de Janeiro, Brazil," he does not argue that he could not, in fact, be found
in Cook County in January 2013 when the court granted Daewoo's Rule 204(b)
petition or at other times during the remainder of 2013. In fact, on March 26,
2013, the circuit court asked Monteiro's counsel, "You say he comes here quite
frequently?" and his counsel responded: "From time to time. Yeah."
¶6 In its response on appeal, Daewoo argues that Monteiro's Rule 204
claims are both waived and unfounded. For the following reasons, we find
that we lack jurisdiction to consider Monteiro's claim and we dismiss his
appeal.
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¶7 BACKGROUND
¶8 We provide below a comprehensive description so that the reader may
fully grasp Daewoo's now almost two-year effort to take Monteiro's deposition
for the purpose of tracing the missing $14.5 million. The description also
includes the court's efforts to address and resolve each of Monteiro's objections,
as they were made, one by one.
¶9 I. Daewoo's First Petitions
¶ 10 As noted above, on January 17, 2013, the supreme court of New York
entered an order authorizing Daewoo to take Monteiro's deposition and obtain
discovery from him.
¶ 11 On January 28, 2013, Daewoo filed a petition in the circuit court of Cook
County pursuant to Rule 204(b) asking the court to issue subpoenas for
testimony and documents from Monteiro and others, which the court granted
the following day. The petition does not indicate that it was served on the
opposing party or the subject individuals. Although the petition does not state
that Monteiro resides, is found or transacts business in Illinois, the record on
appeal does not contain a report of proceedings or bystander's report for January
29, 2013, to indicate if proceedings were held. As a result, we do not know
what, if any, additional information was provided to the circuit court prior to its
grant of the petition.
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¶ 12 The January 29, 2013, order directed Monteiro: (1) "to produce or make
available for inspection on or before February 20, 2013[,] those documents set
forth in the Schedule A attached to the Subpoena at *** 190 S. LaSalle St., Ste
3700, Chicago, Illinois 60603"; and (2) "to appear to give his deposition before
a notary public or an officer duly authorized to administer oaths at *** 190
South LaSalle Street, Suite 3700, Chicago IL 60603 *** on February 20, 2013,
at 1:00 p.m."
¶ 13 On January 30, 2013, Daewoo filed the subpoena with a certificate of
service in the circuit court. The certificate stated:
"I served the subpoena by sending a copy via Federal Express, as
required by Ill. Sup. Ct. Rules 11, 12, 13 and 204(a)(2), to:
Luis Eduardo M. Monteiro
Director
American Metals Trading (USA), Inc.
1560 N. Sandburg Ter. Apt. 1109
Chicago, IL 60610.
(Tracking # 7946 2474 2193) on January 29, 2013."
¶ 14 On January 30, 2013, Daewoo's counsel filed a "Notice of Filing" which
stated that she had filed the subpoena, "a copy of which is attached thereto and
which was previously served upon you on January 29, 2013." The notice was
accompanied by a "Certificate of Notice" which stated that, on January 30,
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No. 1-14-0573
2013, the undersigned "caused a copy of the foregoing notice to be served by
depositing it in the United States mail before 5:00 p.m. at 190 LaSalle, Chicago,
Illinois, with proper postage paid," and addressed to the same address described
above. Thus, Daewoo swore that it had notified Monteiro by both Federal
Express and United States mail.
¶ 15 Monteiro did not move within 30 days either to quash the subpoena or
appeal the January 29, 2013, order.
¶ 16 On March 11, 2013, Daewoo filed a petition for rule to show cause why
Monteiro should not be held in contempt for failing to respond to the subpoena
for deposition and documents served on January 29, 2013. The certificate of
service states that the petition was sent by electronic and certified mail to
Monteiro at the address described above and to his attorney, who is the same
attorney representing him on this appeal.
¶ 17 The petition alleged that Monteiro is "the Director, President, and
Secretary of AMT USA, owns an apartment in Chicago, maintains bank
accounts at First American Bank, an Elk Grove based financial institution, lists
his Chicago apartment address on the checks he writes on his First American
Bank account; and has at least two vehicles registered in Illinois." Monteiro
effectively conceded these factual allegations when he failed to file a response
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No. 1-14-0573
to Daewoo's March 11 petition and failed to contest these allegations in the
"Affidavit" he filed with his March 18, 2013, motion to quash.
¶ 18 Daewoo's petition alleged that, prior to Monteiro's scheduled February 20
deposition, on the afternoon of February 19, Daewoo's counsel received a
telephone call from Monteiro's counsel, who stated that Monteiro had received
the subpoena and forwarded it to him and that he wanted to discuss the
production of documents and deposition testimony pursuant to the subpoena.
Daewoo was informed that Monteiro would produce only some of the requested
documents but none were produced. Ill. S. Ct. R. 204(a)(2) (eff. Dec. 16, 2010)
(a deponent must "respond to any lawful subpoena of which [he] has actual
knowledge").
¶ 19 Monteiro did not file an answer to the March 11, 2013, petition to show
cause, although he did subsequently file a motion to quash the subpoena, which
is described below.
¶ 20 On March 15, 2013, Daewoo filed a separate petition pursuant to Rule
204(b) seeking the issuance of subpoenas to First American Bank and AMT
USA.
¶ 21 II. Monteiro's Motion to Quash
¶ 22 On March 16, 2013, Monteiro's attorney filed a "special and limited
appearance" on behalf of Monteiro, entering "the appearance of deponent." On
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March 18, which was more than 30 days after the court's January 29 order,
Monteiro filed a "motion to quash subpoena pursuant to 735 ILCS 5/2-301
[(West 2012)]." Section 2-301 of the Code of Civil Procedure provides in
relevant part:
"Prior to the filing of any other pleading or motion other than a motion
for an extension of time to answer or otherwise appear, a party may
object to the court's jurisdiction over the party's person, either on the
ground that the party is not amenable to process of a court of this State or
on the ground of insufficiency of process or insufficiency of service of
process, by filing a motion to dismiss the entire proceeding or any cause
of action involved in the proceeding or by filing a motion to quash
service of process." 735 ILCS 5/2-301(a) (West 2012).
¶ 23 In the motion, Monteiro asserted that, according to the Federal Express
tracking number and website, Daewoo had the subpoena delivered to a "W.
Young." Monteiro sought to quash the subpoena on the ground that he had not
been properly served and that it did not comply with the New York discovery
order. Although the motion did not seek to quash the subpoena based on a lack
of personal jurisdiction, the motion also stated that Monteiro was not conceding
this issue and he would address it "if and when he is properly served."
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No. 1-14-0573
¶ 24 The motion did not deny the allegation in Daewoo's petition that
Monteiro's counsel had acknowledged on February 19, 2014, the day before the
scheduled deposition, that his client had received the subpoena. On that
subject, the motion stated: "On several occasions in February 2013, the
undersigned [counsel] engaged in discussions with counsel for Daewoo in an
effort to settle and resolve the discovery dispute. The undersigned does not
believe that it is appropriate to advise the court of the nature and details of
settlement negotiations at this time."
¶ 25 The motion had an accompanying document entitled "Affidavit of Luis
Eduardo M. Monteiro," which appears to be signed, but is neither dated nor
notarized. Section 2-301 provides: "Unless the facts that constitute the basis for
the objection are apparent from papers already on file in the case, the motion
must be supported by an affidavit setting forth those facts." 735 ILCS 5/2-
301(a) (West 2012).
¶ 26 In the undated, unnotarized document, Monteiro did not deny the facts
alleged in Daewoo's March 11, 2013, petition that Monteiro is the director,
president, and secretary of AMT USA, that he owns an apartment in Chicago,
that he maintains bank accounts at First American Bank, an Elk Grove-based
financial institution, that he lists his Chicago apartment address on the checks
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No. 1-14-0573
he writes on his First American Bank account and that he has at least two
vehicles registered in Illinois.
¶ 27 In the undated, unnotarized document, Monteiro also did not deny that he
resided, transacted business or could be found in Ilinois. This document states
in full:
"1. My name is Luis Eduardo M. Monteiro.
2. I am a citizen of Brazil.
3. 'W.Young' has never been authorized to accept service of process
on my behalf.
4. It would be necessary for me to travel from Rio de Janiero, Brazil,
in order to give deposition testimony in Chicago, Illinois.
5. Rio de Janiero, Brazil is approximately 5,300 miles from Chicago,
Illinois.
Further affiant sayeth not."
Although the above document states that Monteiro is "a citizen of Brazil," it
does not assert that he is a resident there. Also, although the document states
that it would be "necessary" for him to "travel" to attend his deposition, it does
not provide the dates when it is true that travel would be necessary.
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No. 1-14-0573
¶ 28 III. Trial Court's Hearings and Orders in March Through June
¶ 29 On March 18, 2013, at a proceeding before the trial court, Monteiro's
attorney informed the circuit court that he had filed a "special unlimited
appearance on behalf" of his client and had just filed a motion to quash that
morning. When Daewoo's counsel started to explain the background to the
litigation, the trial court interrupted:
"THE COURT: But the only thing I have to deal with today is
whether or not service was proper because apparently that's what you're
here to contest?
MONTEIRO'S COUNSEL: Yeah."
Daewoo's attorney argued that Monteiro "had actual knowledge of that
subpoena and under [Rule] 204(a), we tendered mileage fees and costs. With
actual knowledge of a lawful subpoena, Mr. Monteiro, had an obligation to
respond." Supreme Court Rule 204(a)(2) requires a deponent to "respond to
any lawful subpoena of which the deponent has actual knowledge." Ill. S. Ct.
R. 204(a)(2) (eff. Dec. 16, 2010). The trial court responded that, "unless we
find out if service is proper, the rule doesn't have any bite," and it issued a
written order continuing Daewoo's petition and Monteiro's motion to quash
until March 26, 2013.
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No. 1-14-0573
¶ 30 On March 22, 2013, Daewoo filed a response to Monteiro's motion to
quash his subpoena and asked the court to hold Monteiro in contempt. In its
response, Daewoo again observed that Monteiro did not deny actual knowledge
of the subpoena and that he maintained a residence, vehicles and bank accounts
in Illinois and Daewoo argued that it had properly served Monteiro.
¶ 31 On March 26, 2013, the parties again appeared before the court, and this
transcript is in the record. Monteiro's counsel stated that Monteiro is "presently"
in Brazil. Daewoo's counsel stated "we would be willing to find a deposition
date for the next time Mr. Monteiro is in Chicago at his Chicago residence."
The trial court stated that it did not "want to waste time and money on this
silliness" of the form of service and suggested that Daewoo send the subpoena
by certified United States mail, which Daewoo agreed to do. Monteiro's
counsel asked the court if he could "maintain [his] continuing jurisdictional
objection," and the court replied "yes."
¶ 32 Daewoo agreed to send the subpoena again by United States mail,
although the record on appeal contains a "Certificate of Notice," in which
Daewoo's counsel swore that she had sent Monteiro the subpoena by United
States mail on January 30, 2013.
¶ 33 The parties and the court then discussed Daewoo's document requests to
Monteiro both on and off the record. The court stated that the request should be
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No. 1-14-0573
limited to the time frame when Daewoo paid the $14.5 million, and the parties
went off the record. Back on the record, the court stated: "[Daewoo's] counsel
is going to send out another subpoena via U.S. mail, registered mail, certified
mail, to cure any defects" and "[w]e are just dealing with documents now."
¶ 34 During the March 26 proceeding, Monteiro's counsel conceded to the
court that Monteiro was found here regularly. When the parties were on the
record, the court stated to Monteiro's counsel: "You say he comes here quite
frequently?" Monteiro's counsel answered: "From time to time, yeah." Counsel
then represented to the court that he could "find *** out" precisely when
Monteiro would be here, presumably for the purposes of informing Daewoo,
which never occurred.
¶ 35 The concession occurred during the following exchange:
"MONTEIRO'S COUNSEL: So the subpoena won't be for a
deposition, just be a document?
THE COURT: Well, the deposition is going to happen when he's
back in the United States. You say he comes here quite frequently?
MONTEIRO'S COUNSEL: From time to time, yeah. And I can find
that out.
THE COURT: Okay."
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¶ 36 Concerning Daewoo's agreement to resend the subpoena, the court
observed: "[Monteiro] clearly has the subpoena; but it just is easier to cross the
t's and dot the i's so that all these issues are off the table." Then Daewoo's
counsel asked if, once Daewoo resends the subpoena, could it then have an
order to Monteiro to produce the documents, and the court replied "[y]es." The
court stated that it would be "the same subpoena," but:
"THE COURT: I have ordered that the time period be restricted to the
time at which the funds were deposited into the defendants' account to the
present. ***
I am going to allow number one–in number one–document request
number one–that the defendant–I shouldn't say defendant–excuse me–Mr.
Monteiro, Luis Eduardo Monteiro, produce all of his bank accounts."
¶ 37 The court explained: "So if you understand the nature of the order today,
it is that I am attempting to enable the plaintiff to obtain documents that will aid
the plaintiff in tracing the $14.5 million. That is the intent of my order."
¶ 38 The written order, entered on March 26, 2013, stated in full:
"This coming before the court on Daewoo's Petition for Rule to Show
Cause & Luis Eduardo [Monteiro's] Motion to Quash Subpoena, due
notice given & the Court having been advised on the premises, it is
hereby ORDERED:
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No. 1-14-0573
Both motions are entered and continued for the reasons stated on the
record and this matter is continued for status to April 9, 2013 at 10:45
a.m."
¶ 39 On March 28, according to a "Certificate of Service" in the record,
Daewoo sent the subpoena for a third time to Monteiro at the apartment on
Sandburg Terrace in Chicago, as well as a courtesy copy to his attorney. Per
the suggestion of the court, this copy was sent by certified mail.
¶ 40 On April 9, the court entered a written order stating:
"This coming before the court on continued status of Daewoo's
Petition for Rule to Show Cause & Luis Eduardo [Monteiro's] Motion to
Quash Subpoena, due notice given & the court advised in the premises, it
is hereby ORDERED:
1) Luis Eduardo [Monteiro] shall produce the documents requested in
the subpoena as limited by the court's March 26, 2013 Order within
twenty-eight days (May 7, 2013)[;]
2) If Luis Eduardo comes within 200 miles of Chicago within the next
28 days he shall appear for deposition[;]
3) The Petition & Motion are continued to May 8, 2013 at 10:00 a.m."
The April 9, 2013, order was the circuit court's second order permitting
discovery from Montiero; the first one was the circuit court's grant of Daewoo's
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No. 1-14-0573
original Rule 204(b) petition on January 29, 2013. Monteiro did not appeal
either the January 29, 2013, order or the April 9, 2013, order.
¶ 41 On April 12, 2013, Monteiro's attorney filed an emergency motion to
quash subpoena to First American Bank. Daewoo had previously filed a
petition on March 15, 2013, for issuance of a subpoena to the bank and Daewoo
served a subpoena on the bank on March 29, 2013, requesting documents
relating to AMT and Monteiro from January 1, 2010, to the present. In the
motion to quash, Monteiro argued that: "Absent an express finding by either
the New York Court or this Court that Luis Eduardo is an alter ego of AMT,
Daewoo's attempt to discover this individual's personal assets is improper."
¶ 42 On April 16, 2013, at a hearing on Monteiro's emergency motion,
Monteiro's counsel informed the court: "[T]here's a meeting scheduled for the
28th and the 29th of this month between the [AMT] LLP people and the
Daewoo people in Brazil where they're hopefully going to try to work out this
whole thing." Based on that representation, and over Daewoo's objection that
Monteiro has been "stalling the discovery of evidence since the end of January,"
the court entered a written order continuing the matter until May 8, 2013.
¶ 43 On May 6, 2013, Daewoo filed an affidavit from one of its employees
confirming that a meeting did take place on April 30, 2013, in Brazil, but that it
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No. 1-14-0573
appeared to be nothing more than a tactic by AMT to delay the legal
proceedings, and that "no further meetings are planned."
¶ 44 On May 8, 2013, the circuit court set a hearing date of May 31 for
"Daewoo's petition for rule to show cause and Luis Eduardo [Monteiro's]
motion to quash subpoena pursuant to 735 ILCS 5/2-301 and motion to quash
subpoena to First American Bank." On May 30, the day before the scheduled
hearing, Monteiro produced some documents "without any waiver or prejudice
to our pending objections." 1 On May 31, the court continued the petition and
motions to August 2, and ordered "Daewoo to seek clarification from court in
New York as to scope of discovery."
¶ 45 In response, the supreme court of New York issued an order on June 19,
2013, stating in relevant part:
"NOW, having read the May 31, 2013, Order of Judge Eileen Mary
Brewer of the Circuit Court of Cook County, Illinois, among other things
directing Petitioner [Daewoo] 'to seek clarification from [the] Court in
New York as to [the] scope of discovery,' it is hereby
1
Although the document production is not in the appellate record, Daewoo
stated in a December 27, 2013, filing that the documents "showed that Daewoo's
money had been wired to offshore accounts in Amsterdam, and then the Caribbean,
but did not show the current location of the money."
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ORDERED, that commissions are hereby issued to the State of
Illinois for Petitioner [Daewoo] to conduct oral examinations of, and
obtain documentation from Luis Eduardo M. Monteiro ** * within the
scope of the Subpoenas annexed hereto."
The attached subpoena directed Monteiro to produce documents on July 15,
2013, and to appear for a deposition in Chicago on July 22, 2013. This was the
New York court's second order directing discovery from Monteiro.
¶ 46 On June 28, 2013, the circuit court granted Daewoo's petition for
issuance of a subpoena directing Monteiro to produce documents by July 15,
2013, and to appear for a deposition in Chicago on July 22, 2013. A certificate
of service stated that the subpoena was mailed on June 28 by certified mail to
Monteiro at the apartment on Sandburg Terrace in Chicago. This was now the
third order by an Illinois circuit court permitting discovery from Luis Monteiro.
Montiero did not appeal (1) the January 29, 2013, order, (2) the April 9, 2013,
order, or (3) the June 28, 2013, order.
¶ 47 IV. Daewoo's Second Petition for Rule to Show Cause
¶ 48 On August 1, 2013, more than six months after the circuit court had first
granted Daewoo's Rule 204(b) petition, Daewoo filed its second petition for
rule to show cause as to why Monteiro should not be held in contempt for
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No. 1-14-0573
failing to produce documents and to appear for a deposition, after three court
orders permitting this discovery.
¶ 49 On August 2, 2013, the circuit court issued a written order directing
Monteiro to comply with the subpoena:
"This cause coming to be heard for status, IT IS HEREBY
ORDERED:
(1) Luis Eduardo [Monteiro] must comply with subpoena as clarified
by New York court within 35 days;
(2) This case is set for status on all pending matters and motions on
September 12, 2013, on 10 a.m."
Thirty-five days from August 2 was Friday, September 6, 2013. This was the
circuit court's fourth order granting discovery from Monteiro, and Monteiro did
not appear for a deposition within the 35 days specified or appeal from the
order.
¶ 50 On September 12, 2014, the circuit court issued a written order stating:
"This cause coming to be heard for status, IT IS HEREBY
ORDERED:
(1) Luis Eduardo Monteiro's Emergency Motion to Quash Subpoena
to First American Bank, over the objection of Luis Eduardo that there has
not been a substantial showing that he is an alter ego, has been denied;
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No. 1-14-0573
(2) Parties encouraged to work together to agree on outstanding
issues, including deposition date and time for Luis Eduardo Monteiro;
(3) Case is set for status on November 12, 2013 at 10:15 a.m."
¶ 51 Although the record does not contain a transcript or bystander's report for
the September 12 status conference, a letter from Daewoo's counsel to
Monteiro's counsel on the same day states: "During today's status conference
with Judge Brown, *** you indicated for the first time your client's willingness
to work with Daewoo to schedule a date and time for deposition. You also
indicated that it may be more convenient for Mr. Monteiro to schedule his
deposition in New York. We are happy to accommodate this request[;] ***
please provide us with dates on which your client can be available for a
deposition in New York prior to September 23, 2013."
¶ 52 In addition, in a filing dated December 12, 2013, Monteiro stated that, on
the day of this status conference, he had produced 567 documents.
¶ 53 On November 14, the circuit court once again ordered Monteiro's
compliance, stating in relevant part:
"This cause coming to be heard for status, IT IS HEREBY
ORDERED:
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No. 1-14-0573
(1) Luis Eduardo Monteiro has not fully complied with subpoena for
documents and deposition despite this court's orders dated August 2,
2013 and September 12, 2013;
(2) Luis Eduardo Monteiro must comply with subpoena, including
providing deposition testimony, within 30 days ***."
Thirty days from November 14 was Saturday, December 14, 2013, and a status
conference was set for January 2, 2014. The court's use of the words "not fully
complied" indicates that Montiero produced some documents in response to the
subpoena. This was the circuit court's fifth order granting discovery from
Monteiro.
¶ 54 On November 26, 2013, Daewoo's counsel again sent Monteiro's
counsel a letter offering him the option of holding the deposition in New York
"on any date of your choosing prior to December 14."
¶ 55 V. Monteiro's Motion to Vacate
¶ 56 On Thursday, December 12, 2013, two days before the 30-day period
was to expire, Monteiro filed an "emergency motion" to vacate the portion of
the November 14 order directing him to appear for deposition in Chicago. The
motion stated that is was made pursuant to section 2-1301(e) of the Code of
Civil Procedure, which permits a court, "on motion filed within 30 days after
entry" of a final judgment, to set it aside. 735 ILCS 5/2-1301(e) (West 2012).
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¶ 57 The motion stated that Monteiro had produced 567 pages of documents
on September 12, but he sought to vacate the deposition portion of the order,
"because (1) the petitioner has not alleged that Luis Eduardo resides, is
employed, transacts business in person, or is found in Cook County and (2) Luis
Eduardo has resided and worked in Brazil since 2012–prior to the initiation of
this matter." The motion also argued that Monteiro did not "transact" business
in Cook County, because the word refers to more than a single incidental
transaction.
¶ 58 The motion included a document entitled Monteiro's "Affidavit," but the
document is not notarized. The document states:
"1. My name is Luis Eduardo M. Monteiro.
2. I am a citizen of Brazil.
3. I am currently living in Brazil and have been since 2011.
4. I have not resided in Cook County, Illinois since 2011.
5. I was previously employed by AMT USA, but have not been
employed by AMT USA since 2012.
6. AMT ceased business operations in 2012.
7. It would be necessary for me to travel from Rio de Janeiro, Brazil
in order to give deposition testimony in Chicago, Illinois.
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No. 1-14-0573
8. Rio de Janiero, Brazil is approximately 5,300 miles from Chicago,
Illinois.
Further Affiant sayeth not."
The above document does not assert either: (1) that Monteiro is not found in
Chicago, or (2) the dates when travel would be needed for him to attend a
deposition in Chicago.
¶ 59 On December 13, 2013, the circuit court issued a written order stating
that "the portion of the November 14, 2013[,] order as it relates to Luis Eduardo
M. Monteiro is vacated pending further briefing and forthcoming ruling on the
issues raised in this motion."
¶ 60 In its response, Daewoo alleged that it had paid Monteiro's "company
$14.5 million for pig iron. Luis Eduardo [Monteiro] informed Daewoo that the
pig iron Daewoon purchased had been delivered. In fact, the pig iron
apparently never existed, and Luis Eduardo [Monteiro] instead wired Daewoo's
money to a Caribbean bank account, where it has since disappeared. Luis
Eduardo [Monteiro], a Chicago resident, ran this scam through a Chicago-based
business. He has apparently now shuttered this business and fled to Brazil."
Daewoo alleged that it had received an arbitration award against AMT LLP but
it "has been unable to locate any assets upon which to collect this award."
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¶ 61 Daewoo alleged, as it had in its first petition to show cause, that Monteiro
owns an apartment in Chicago; maintains bank accounts at First American
Bank, an Elk Grove-based financial institution; lists his Chicago apartment
address on the checks he writes on his First American Bank account; and has at
least two vehicles registered in Illinois.
¶ 62 In addition, Daewoo alleged (1) that Monteiro's individual retirement
account distribution form, dated January 9, 2013, lists Illinois as his state of
residence, (2) that his personal bank records show that during the first half of
2013 he made mortgage and utility payments, made doctor's visits in Chicago
and took regular golf lessons at a country club in Chicago; (3) that AMT
corporate filings dated June 8, 2013, list his country of residence as the United
States; and (4) that, on July 19, 2013, he was in Chicago to attend the closing of
the sale of one of his two apartments in the 1560 North Sandburg Terrace
building. Daewoo alleged that most of these events occurred while its January
2013 subpoena was pending.
¶ 63 In his reply filed December 27, 2013, Monteiro did not dispute either "the
fact that [he] listed Illinois as his residence on certain forms" or the factual
allegations concerning his doctor visits, golf lessons and attendance at a closing
in Chicago. However, he did assert that he "does not presently reside in Cook
County,"
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No. 1-14-0573
¶ 64 In his reply, Monteiro also stated that his "motion to vacate is not based
upon a lack of personal jurisdiction, but rather on Daewoo's failure to fulfill the
statutory requirements of Sup. Ct. R. 204(b)."
¶ 65 On January 13, 2014, the circuit court set Monteiro's motion to vacate for
a hearing on January 24, 2014. After the hearing, the circuit court issued a
written order stating in full:
"This cause coming to be heard on Luis Eduardo Monteiro's
Emergency Motion to Vacate [the] November 14, 2013[,] court order, IT
IS HEREBY ORDERED:
(1) Luis Eduardo Monteiro's Emergency Motion is denied;
(2) Luis Eduardo Monteiro to appear for deposition at *** 77 W.
Wacker Drive, Chicago, IL *** within 21 days;
(3) Luis Eduardo Monteiro will be subject to a $1,000 per day penalty
for every day after that time should he fail to appear for deposition within
21 days;
(4) Parties to appear for status on March 6, 2014[,] at 10:30 a.m."
Excluding the November 14 order that was subsequently vacated, this was the
circuit court's fifth order granting discovery from Monteiro.
¶ 66 Twenty-one days from January 24, 2014, was Friday, February 14, 2014.
On February 13, the day before the 21-day period was about to expire, Monteiro
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No. 1-14-0573
filed a notice of appeal stating that he appealed "from the order of January 24,
2014." However, the record on appeal does not contain a transcript or
bystander's report for the January 24 hearing. This appeal followed.
¶ 67 ANALYSIS
¶ 68 On this appeal, defendant raises one claim: that "the circuit court erred in
finding that Daewoo had complied with the requirements of Rule 204(b)."
¶ 69 Rule 204(b) provides in full:
"(b) Action Pending in Another State, Territory, or Country. Any
officer or person authorized by the laws of another State, territory, or
country to take any deposition in this State, with or without commission,
in any action pending in a court of that State, territory, or country may
petition the circuit court in the county in which the deponent resides or is
employed or transacts business in person or is found for a subpoena to
compel the appearance of the deponent or for an order to compel the
giving of testimony by the deponent. The court may hear and act upon
the petition with or without notice as the court directs." Ill. S. Ct. R.
204(b) (eff. Dec. 16, 2010).
"[I]t is the intent of the rule to empower the circuit court to grant the same
discovery in Illinois in aid of an action pending in another State as it could
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No. 1-14-0573
order in an action pending in Ilinois." Eskandani v. Phillips, 61 Ill. 2d 183, 197
(1975).
¶ 70 Defendant claims that Daewoo's Rule 204(b) petition failed to satisfy the
pleading and proof requirements inherent in Rule 204(b). However, for the
following reasons, we find that we lack jurisdiction to consider defendant's
claim.
¶ 71 I. Rule 301
¶ 72 Before we proceed to consider the merits of the parties' arguments, we
must first consider whether we have subject matter jurisdiction. An appellate
court has a duty to consider its own jurisdiction, whether or not the parties have
raised it as an issue. People v. Lewis, 234 Ill. 2d 32, 36-37 (2009) ("courts of
review have an independent duty to consider [their own subject matter]
jurisdiction even if a jurisdictional issue is not raised by the parties," and
subject matter jurisdiction is "a threshold issue"); Secura Insurance Co. v.
Illinois Farmers Insurance Co., 232 Ill. 2d 209, 213 (2009) ("A reviewing court
must ascertain its [own subject matter] jurisdiction before proceeding in a cause
of action, regardless of whether either party has raised the issue."); People v.
Smith, 228 Ill. 2d 95, 106 (2008) ("We take this opportunity to remind our
appellate court of the importance of ascertaining whether it has jurisdiction in
an appeal[.]" The ascertainment of its own jurisdiction is one of the "most
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No. 1-14-0573
important tasks of an appellate court panel when beginning the review of a
case."); R.W. Dunteman Co. v. C/G Enterprises, Inc., 181 Ill. 2d 153, 159
(1998) ("A reviewing court must be certain of its jurisdiction prior to
proceeding in a cause of action.").
¶ 73 Monteiro states in his appellate brief that this court has jurisdiction
pursuant to Illinois Supreme Court Rule 301 (eff. Feb. 1, 1994), which states in
full:
"Every final judgment of a circuit court in a civil case is appealable as
of right. The appeal is initiated by filing a notice of appeal. No other
step is jurisdictional. An appeal is a continuation of the proceeding."
¶ 74 Monteiro argues that, according to Eskandani v. Phillips, 61 Ill. 2d 183,
195 (1975), when an Illinois circuit court orders the requested discovery in a
petition under Rule 204(b), that order constitutes a "final judgment" for
purposes of Rule 301, because the discovery is all that is sought before the
Illinois circuit court.
¶ 75 In Eskandani, our supreme court explained that "if the main action were
pending in Illinois the order would be interlocutory and not appealable," and the
only way to test the correctness of the order would be through a contempt
proceeding. Eskandani, 61 Ill. 2d at 194. See also Norskog v. Pfiel, 197 Ill. 2d
60, 69 (2001) ("it is well settled that the correctness of a discovery order may be
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No. 1-14-0573
tested through contempt proceedings"). The reason that "[p]reliminary orders
in an action pending in this State are not final and appealable" is because "they
can be reviewed on appeal from the final judgment in the case." Eskandani, 61
Ill. 2d at 194.
¶ 76 By contrast, when a petition is filed pursuant to Rule 204(b), "[t]he only
action in Illinois is the petition." Eskandani, 61 Ill. 2d at 194. As a result, the
discovery "order entered by the circuit court is the final judgment in the Illinois
proceeding." Eskandani, 61 Ill. 2d at 194. Even when discovery is conducted
on behalf of an out-of-state action, if it is conducted in Illinois, it "must be
conducted pursuant to our rules." Eskandani, 61 Ill. 2d at 194. The only
opportunity for review by an Illinois appellate court of the correctness of an
Illinois circuit court's Rule 204(b) order is by an appeal from that order.
Eskandani, 61 Ill. 2d at 194.
¶ 77 Thus, Monteiro is correct that Rule 301 provides this court with
jurisdiction to review a circuit's court order granting a Rule 204(b) petition.
¶ 78 II. Timely Notice of Appeal
¶ 79 Our inquiry into jurisdiction does not end here, however, because
jurisdiction under Rule 301 requires the filing of a timely notice of appeal. For
jurisdiction to exist under Rule 301, the appellant must file a timely notice of
appeal, and this "step is jurisdictional." Ill. S. Ct. R. 301 (eff. Feb. 1, 1994).
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No. 1-14-0573
¶ 80 In the case at bar, the circuit court issued an order granting discovery,
pursuant to Rule 204(b), on January 29, 2013. The court could not have issued
this order without finding that Daewoo had satisfied the requirements of Rule
204(b). Since the only action in Illinois was the petition filed by Daewoo on
January 28, 2013, to obtain discovery from and depose Monteiro and others in
Illinois pursuant to Rule 204(b), the January 29, 2013, order was the final
judgment in the Illinois proceeding.
¶ 81 Monteiro's actual knowledge of the order within 30 days is established by
the fact that his counsel contacted Daewoo's counsel on February 19, 2013, and
acknowledged Monteiro's prior receipt of the subpoena. This conversation was
alleged in Daewoo's March 11, 2013, petition for rule to show cause, and
Monteiro did not deny it in his March 18, 2013, motion to quash. In the March
18 motion, Monteiro's counsel acknowledged that he had discussed the
subpoena with Daewoo's counsel "[o]n several occasions in February 2013." In
addition, on March 26, the trial court found, as a matter of fact, that Monteiro
"clearly has the subpoena." Thus, Monteiro had actual knowledge of the
subpoena and could have appealed it or moved to quash it before February 28,
which was 30 days after the January 29 order, but he did not do so. Monteiro
did not file a motion to quash until March 18, which was 48 days after the
January 29 order.
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No. 1-14-0573
¶ 82 In an appeal from a final judgment of a circuit court in a civil case, such
as in this appeal, an appellant must file the notice of appeal "within 30 days
after the entry of the final judgment appealed from." Ill. S. Ct. R. 303(a)(1)
(eff. May 30, 2008). As explained above, "the final judgment appealed from"
in the instant case was the circuit court's January 29, 2013, order, and Monteiro
failed to appeal it within 30 days after its entry.
¶ 83 However, Rule 303 also provides that, "if a timely posttrial motion
directed against the judgment is filed, whether in a jury or nonjury case," then
the notice of appeal must be filed "within 30 days after the entry of the order
disposing of the last pending postjudgment motion directed against that
judgment or order, irrespective of whether the circuit court had entered a series
of final orders that were modified pursuant to postjudgment motions. *** No
request for reconsideration of a ruling on a postjudgment motion will toll the
running of the time within which a notice of appeal must be filed under this
rule." Ill. S. Ct. R. 303(a)(1), (2) (eff. May 30, 2008).
¶ 84 To satisfy the above-quoted portion of the rule, the first act required is
the filing of "a timely posttrial motion" against the judgment appealed from.
Ill. S. Ct. R. 303(a)(1), (2) (eff. May 30, 2008). Similarly, Supreme Court Rule
274 provides that only a "timely postjudgment motion shall toll the finality and
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No. 1-14-0573
appealability of the judgment or order at which it is directed." Ill. S. Ct. R. 274
(adopted Oct. 14, 2005).
¶ 85 To determine whether Monteiro filed a "timely posttrial motion," we
must look to section 2-1203 of the Code of Civil Procedure, which governs the
timing of posttrial motions in nonjury cases, such as this one. 735 ILCS 5/2-
1203(a) (West 2012). Section 2-1203 provides in relevant part:
"In all cases tried without a jury, any party may, within 30 days after the
entry of the judgment or within any further time the court may allow
within the 30 days or any extensions thereof, file a motion for a
rehearing, or a retrial, or modifications of the judgment or to vacate the
judgment or for other relief." 735 ILCS 5/2-1203(a) (West 2012).
Thus, section 2-1203 requires a party either: (1) to file a motion "within 30
days after the entry of the judgment," or (2) to seek an extension "within the 30
days." 735 ILCS 5/2-1203(a) (West 2012); Manning v. City of Chicago, 407
Ill. App. 3d 849, 852 (2011). See also 735 ILCS 5/2-1301(e) (West 2012) (a
court "may on motion filed within 30 days after entry" of a final judgment set it
aside in its discretion and on reasonable terms). As already discussed, Monteiro
did neither. His first motion to vacate was filed 48 days after the entry of the
circuit court's January 29 order, and he did not seek an extension "within the 30
days." 735 ILCS 5/2-1203(a) (West 2012). As quoted above, section 2-1203
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No. 1-14-0573
also covers motions "to vacate the judgment." 735 ILCS 5/2-1203(a) (West
2012). While a circuit court may grant an extension, section 2-1203 provides
that "any further time the court may allow" must be allowed "within the 30
days." 735 ILCS 5/2-1203(a) (West 2012); Manning, 407 Ill. App. 3d at 852.
This did not happen in the instant case.
¶ 86 Our supreme court has held that where an appellant fails to file either a
timely postjudgment motion or appeal from the entry of a final judgment within
30 days, then any subsequent notice of appeal is not timely, and "the appellate
court ha[s] no jurisdiction to consider the merits of this case." Keener v. City of
Herrin, 235 Ill. 2d 338, 348 (2009). Thus, we lack jurisdiction to consider the
merits of this appeal.
¶ 87 While it is true that an appellate court normally has jurisdiction to
consider prior discovery orders that were preliminary steps to the order
appealed from, that is because they were not final and appealable (People v.
Jakuboski, 42 Ill. App. 3d 1067, 1070 (1976)), as was the order in the instant
appeal.
¶ 88 Our supreme court has given the deponent in an out-of-state action the
privilege of an immediate appeal that he or she would otherwise not have if the
action were in-state. Eskandani, 61 Ill. 2d at 194. This is a privilege that should
not be abused. It recognizes that, even though a fully competent sister state like
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No. 1-14-0573
New York ordered prompt discovery in a case before it, an Illinois deponent
still has the right to insist that a subpoena must be executed here according to
Illinois law. Eskandani, 61 Ill. 2d at 194. Thus, the deponent is in the unique
position of being able to challenge a subpoena twice in two different courts: in
the court where the action occurs; and in our court. The possibility for delay is
great. In the instant case, for example, courts in both New York and Illinois
issued multiple orders during the course of a year to compel discovery.
However, the deponent may lose this privilege of filing in two courts, if he or
she does not act in the timely fashion required by our code. Eskandani, 61 Ill.
2d at 191, 193 (appellant filed a notice of appeal within 30 days of the circuit
court's grant of the Rule 204(b) petition).
¶ 89 The 30-day limit provided in section 2-1203 of the Code of Civil
Procedure (Code) (735 ILCS 5/2-1203(a) (West 2012)) prevents the type of
stalling and abuse of process which took place here. Court orders are not
advisory, and in this case, the circuit court issued five of them, and the New
York court issued at least two. Cf. Manning, 407 Ill. App. 3d at 851 ("Our
state's rules and procedures regarding legal proceedings are not mere
suggestions but, instead, are required to be followed by all parties to a cause of
action in our courts.").
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No. 1-14-0573
¶ 90 Thus, pursuant to the timing requirements in our Code that are designed
to safeguard the prompt administration of justice, we lack jurisdiction over this
appeal. As our courts have often stressed, justice delayed may lead to justice
denied, and Monteiro's deposition in this case has been delayed too long.
People v. Ladd, 294 Ill. App. 3d 928, 930 (1998) (" 'justice delayed is justice
denied' "); People v. Wasilewski, 66 Ill. App. 3d 1, 5 (1978) ("there is merit to
the cliche that justice delayed is justice denied"); Busser v. Noble, 8 Ill. App. 2d
268, 279 (1956) ("justice delayed is justice denied"); Gray v. Gray, 6 Ill. App.
2d 571, 578-79 (1955) ("The law's delay in many lands and throughout history
has been the theme of tragedy and comedy. *** 'Justice delayed is justice
denied,' and regardless of the antiquity of the problem and the difficulties it
presents, the courts and the bar must do everything possible to solve it.").
¶ 91 CONCLUSION
¶ 92 For the foregoing reasons, we conclude that we lack jurisdiction to
consider Monteiro's claim and dismiss this appeal.
¶ 93 Appeal dismissed.
35