Fogel, Richard L. v. Gordon & Glickson ( 2004 )


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  •                                In the
    United States Court of Appeals
    For the Seventh Circuit
    ____________
    Nos. 04-1599, 04-2353
    RICHARD L. FOGEL,
    Plaintiff-Appellant, Cross-Appellee,
    v.
    GORDON & GLICKSON, P.C., et al.,
    Defendants-Appellees, Cross-Appellants.
    ____________
    Appeals from the United States District Court
    for the Northern District of Illinois, Eastern Division.
    No. 03 CV 1617—Joan Humphrey Lefkow, Judge.
    ____________
    ARGUED OCTOBER 25, 2004—DECIDED DECEMBER 29, 2004
    ____________
    Before POSNER, KANNE, and WILLIAMS, Circuit Judges.
    POSNER, Circuit Judge. The cross-appeals in this diversity
    suit present issues of fraud (under the common law of
    Illinois) and arbitrability and a request by the defendants for
    sanctions for the filing of a frivolous suit, along with
    jurisdictional issues. The district court dismissed the suit for
    failure to state a claim, enjoined arbitration, but denied
    sanctions. The only sources of facts are the complaint and
    contracts appended to it.
    2                                      Nos. 04-1599, 04-2353
    Fogel is a former member of the Chicago law firm of
    Gordon & Glickson, a professional corporation until 1999
    when it was converted for tax reasons to a limited liability
    company. At that point Fogel, an employee and shareholder
    of the PC, became an employee and member of the LLC.
    Despite the conversion, the PC was not dissolved. It had
    bought stock and stock options with money that would
    otherwise have been income to its shareholders, and it re-
    tained a portion of those assets after the conversion in order
    to provide deferred compensation to the shareholders.
    Fogel continued to work for the law firm until September
    1999, when he announced his resignation and hence, pur-
    suant to contracts that he had signed at the time of the
    conversion, from the PC as well as the LLC. Pursuant to still
    another contract, governing the disposition of the assets
    retained by the PC, he became a creditor of the PC for his
    share of those assets, some $463,000, which was to be paid
    to him over a three-year period beginning in 2001. Oddly,
    given his charge of fraud, had he not—at the firm’s
    suggestion—postponed his resignation to the beginning of
    the following year, he would have had a smaller entitlement
    because the PC’s assets were revalued upward at the end of
    1999.
    The firm decided to sell some of the PC’s assets and dis-
    tribute the proceeds to the shareholders in the form of cash.
    Since Fogel was no longer a shareholder, he was not entitled
    to share in the proceeds of the sale. The firm, however,
    offered to treat him as if he were still a shareholder and thus
    to let him share in the proceeds of the sale—further para-
    doxical behavior for a defrauder. He declined, preferring to
    remain a general creditor. The sale took place and was
    profitable, and despite the distribution of the proceeds the
    PC’s remaining assets had sufficient value to cover the debt
    to Fogel. But shortly afterwards, and before the payments to
    Nos. 04-1599, 04-2353                                         3
    him were due to begin, the dot-com bubble burst, the PC’s
    remaining securities tanked, and the value of the PC’s assets
    fell to a level at which it was able to pay Fogel only 60
    percent of what it owed him, precipitating this lawsuit.
    Fogel alleges that when the firm gave him a choice whether
    to be treated as a shareholder of the PC and thus participate
    in the sale of some of its assets, it failed to warn him that if
    he didn’t go along but instead stood on his rights as a
    creditor there mightn’t be enough assets left to pay him the
    full amount of the PC’s debt to him. But it isn’t fraud even
    for a fiduciary to fail to tell his principal something that is
    obvious. “A party cannot close its eyes to obvious facts and
    then charge that it has been deceived.” Modern Track
    Machinery, Inc. v. Bry-Lon, Ltd., 
    554 N.E.2d 1104
    , 1107-08 (Ill.
    App. 1990); see also Costello v. Liberty Mutual Ins. Co., 
    348 N.E.2d 254
    , 257 (Ill. App. 1976); Vigortone AG Products, Inc.
    v. PM AG Products, Inc., 
    316 F.3d 641
    , 645 (7th Cir. 2002)
    (Illinois law); AMPAT/Midwest, Inc. v. Illinois Tool Works Inc.,
    
    896 F.2d 1035
    , 1041-42 (7th Cir. 1990) (ditto). Fogel knew
    that he might not be paid in full if the PC’s assets declined
    in value because of the vicissitudes of the stock market. He
    also knew that if assets were sold and the proceeds distrib-
    uted to the PC’s shareholders, of whom he was no longer
    one, the diminished pool of assets remaining would be even
    less likely to cover what the PC owed him.
    A sale of a corporation’s assets followed by the distribu-
    tion of the proceeds to the owners might be a fraud against
    the corporation’s creditors, such as Fogel (apparently the
    PC’s only creditor). 740 ILCS 160/5(a), 6(a); Cannon v.
    Whitman Corp., 
    569 N.E.2d 1114
    , 1116-17 (Ill. App. 1991);
    Scholes v. Lehmann, 
    56 F.3d 750
    , 754 (7th Cir. 1995) (Illinois
    law); Pierce v. United States, 
    255 U.S. 398
    , 403 (1921); William
    T. Vukowich, “Civil Remedies in Bankruptcy for Corporate
    Fraud,” 
    6 Am. Bankr. Inst. L. Rev. 439
    , 444-47 (1998). Maybe
    4                                      Nos. 04-1599, 04-2353
    a concern with the possibility of being accused of such a
    fraud was what led the firm to offer Fogel a chance to
    participate in the sale of assets as if he were still a share-
    holder. By declining, he placed himself at risk that the assets
    might be dissipated to the point at which his claim as a
    creditor would be endangered. For not only did he know
    that some of them were about to be sold and the proceeds
    distributed to the shareholders; he also knew exactly which
    ones would be sold and what would be left in the PC.
    He is left to argue only that the firm falsely assured him
    that there would be value enough remaining in the PC to
    pay his claim in full. But he could not have believed any
    such assurance. He knew what the remaining assets were;
    he knew they were stocks and stock options rather than
    Treasury bills; he knew the law firm did not control the
    stock market; and so he knew that the firm’s representation
    to him concerning the future value of the PC’s remaining
    assets was a prediction, rather than a promise on which a
    reasonable person could rely. Lidecker v. Kendall College, 
    550 N.E.2d 1121
    , 1125 (Ill. App. 1990); Madison Associates v. Bass,
    
    511 N.E.2d 690
    , 699 (Ill. App. 1987); Hofner v. Glenn Ingram
    & Co., 
    489 N.E.2d 311
    , 317 (Ill. App. 1985); Continental Bank,
    N.A. v. Meyer, 
    10 F.3d 1293
    , 1298-99 (7th Cir. 1993) (Illinois
    law). Often what sounds like a “promise” is actually “a
    hope or possibly a prediction rather than a commitment to
    do something within the ‘promisor’s’ power to do (‘I prom-
    ise it will rain tomorrow’); and the ‘promisee’ would, if
    sensible, understand this. He would rely or not as he chose
    but he would know that he would have to bear the cost of
    any disappointment.” Garwood Packaging, Inc. v. Allen & Co.,
    
    378 F.3d 698
    , 703-04 (7th Cir. 2004).
    If Fogel wanted to minimize the risk to him of stock
    market fluctuations, he should either have accepted the of-
    Nos. 04-1599, 04-2353                                         5
    fer to be treated as a participant in the sale of assets, and
    thus received a portion of the proceeds (and therefore ad-
    vance payment of a part of his entitlement), which were in
    cash, or have objected to the distribution of the proceeds,
    which reduced the assets available to pay the PC’s debt to
    him. He did neither. He gave knowing consent to the chain
    of events that resulted in the PC’s inability to honor its debt
    to him. So the claim of fraud was rightly dismissed, al-
    though we do not think the claim was so frivolous that the
    district judge can be said to have abused her discretion in
    declining to award sanctions.
    After filing his suit in the district court, Fogel served a
    demand for arbitration on the LLC, contending that it had
    violated a contractual obligation to pay him, when he with-
    drew from the firm, both deferred compensation and the
    value of his equity interest in the firm. His contracts with
    the PC and the LLC contain an identical, broadly worded,
    “mandatory arbitration” clause, which provides that “any
    dispute, claim, question or disagreement . . . aris[ing] as a
    result of or in connection with this Agreement, or the breach
    thereof, . . . shall be resolved through arbitration.” Although
    the clause was broad enough to encompass Fogel’s fraud
    claim against the PC, Prima Paint Corp. v. Flood & Conklin
    Mfg. Co., 
    388 U.S. 395
    , 402-04 (1967); Matthews v. Rollins
    Hudig Hall Co., 
    72 F.3d 50
    , 54 (7th Cir. 1995); Pierson v. Dean,
    Witter, Reynolds, Inc., 
    742 F.2d 334
    , 338 (7th Cir. 1984), Fogel
    had disregarded it in suing in the district court; and the PC,
    content to litigate the fraud case there, had not invoked the
    arbitration clause either. When the firm learned of Fogel’s
    demand for arbitration of his breach of contract claim
    against the LLC, it asked the district court to rule that Fogel
    was splitting his claim, that res judicata forbade him to do
    so, and therefore that he should be enjoined from arbitrat-
    ing. The district court agreed and enjoined the arbitration.
    Fogel as part of his appeal asks us to vacate the injunction.
    6                                        Nos. 04-1599, 04-2353
    There is a jurisdictional hiccup. The district court dis-
    missed the fraud suit while the motion to enjoin arbitration
    was pending. When Fogel filed his notice of appeal from
    that dismissal we ordered the appeal stayed pending dis-
    position of the motion to enjoin, which would end the pro-
    ceedings in the district court, thus enabling us to exercise
    jurisdiction under 
    28 U.S.C. § 1291
     (appeal from final
    decision). When we received notice that the district court
    had amended its judgment to include the injunction, we set
    a briefing schedule for the appeal, but Fogel failed to file a
    new notice of appeal.
    Had we dismissed the appeal, back when the notice of
    appeal was filed, for want of appellate jurisdiction, on the
    ground that there was then no final judgment in the district
    court and the appeal was therefore premature, Katerinos v.
    United States Department of the Treasury, 
    368 F.3d 733
    , 737-38
    (7th Cir. 2004) (per curiam); Florian v. Sequa Corp., 
    294 F.3d 828
    , 829 (7th Cir. 2002) (per curiam), Fogel would have
    known to file a new notice of appeal when the amended
    judgment was issued. Fed. R. App. P. 4(a)(4)(B)(ii); Gripe v.
    City of Enid, 
    312 F.3d 1184
    , 1186 (10th Cir. 2002). By instead
    merely staying the appeal, we may have led him to believe
    that his appeal was perfected and merely awaiting the
    completion of formalities in the district court. He should not
    have been fooled; it is settled law that the kind of stay
    issued in this case does not excuse the appellant from hav-
    ing to file a fresh notice of appeal if he wants to appeal from
    the district court’s final decision. Katerinos v. United States
    Department of the Treasury, 
    supra,
     
    368 F.3d at 737-38
    ; see also
    Life Plus Int’l v. Brown, 
    317 F.3d 799
    , 804-05 (8th Cir. 2003).
    And anyway when a rule is unambiguous a litigant is not
    permitted to rely on erroneous advice, even by a court.
    Properties Unlimited, Inc. Realtors v. Cendant Mobility Services,
    
    384 F.3d 917
    , 921-22 (7th Cir. 2004); Panhorst v. United States,
    
    241 F.3d 367
    , 373 (4th Cir. 2001); Endicott Johnson Corp. v.
    Nos. 04-1599, 04-2353                                         7
    Liberty Mutual Ins. Co., 
    116 F.3d 53
    , 57-58 (2d Cir. 1997).
    (What is more, as we shall see, it would have been an error
    for us to dismiss the appeal for want of jurisdiction; there
    was a final judgment in the district court when we granted
    the stay, although we didn’t know it.)
    The cases we have just cited are ones interpreting the
    unhelpfully named “unique circumstances” doctrine, which
    is actually a form of equitable tolling that relieves against
    the consequences of an untimely filing of a notice of appeal
    if the appellant relied on a “specific assurance by a judicial
    officer.” Osterneck v. Ernst & Whinney, 
    489 U.S. 169
    , 179
    (1989); Rezzonico v. H&R Block, Inc., 
    182 F.3d 144
    , 152 (2d Cir.
    1999); Moore v. South Carolina Labor Board, 
    100 F.3d 162
    , 164
    (D.C. Cir. 1996) (per curiam). Questionable on its face—the
    judge-made tolling rules, such as equitable tolling, are
    designed for statutes of limitations, not for jurisdictional
    deadlines, Zipes v. Trans World Airlines, Inc., 
    455 U.S. 385
    ,
    393 (1982); Cada v. Baxter Healthcare Corp., 
    920 F.2d 446
    , 451
    (7th Cir. 1990); David v. Hall, 
    318 F.3d 343
    , 345-46 (1st Cir.
    2003); Hardin v. City Title & Escrow Co., 
    797 F.2d 1037
    , 1040-
    41 (D.C. Cir. 1986)—and rarely invoked successfully, the
    doctrine in operation is best illustrated by Harris Truck Lines,
    Inc. v. Cherry Meat Packers, Inc., 
    371 U.S. 215
     (1962) (per
    curiam). The district court had granted an extension of time
    within which to file the notice of appeal because the appel-
    lant’s lawyer was out of the country. In reliance on the
    court’s order, the appellant filed its notice of appeal within
    the extended deadline, but after the original 30-day deadline
    had expired. The court of appeals reversed the grant of the
    extension, which made the appeal untimely, but the Su-
    preme Court reversed the court of appeals. The appellant
    had relied on the extension (for had it been denied, he could
    have filed the notice of appeal within the original deadline),
    and his reliance had been reasonable because the judge’s
    granting of the motion for an extension of time hadn’t been
    8                                      Nos. 04-1599, 04-2353
    an obvious abuse of discretion. On this basis the Supreme
    Court held that the appeal was timely after all. As the
    subsequent cases make clear, the reliance must indeed be
    reasonable, and it was not here.
    The two cases on which Fogel places particular weight are
    not on point. In Allen v. Transamerica Ins. Co., 
    128 F.3d 462
    ,
    463 (7th Cir. 1997), the original “judgment” was not a real
    judgment, but merely the announcement of the court’s
    decision before entry of judgment, and so the notice of
    appeal from the first “judgment” was not premature. Fed.
    R. App. P. 4(a)(2). And in Cardoza v. Commodity Futures
    Trading Commission, 
    768 F.2d 1542
    , 1545-47 (7th Cir. 1985),
    the notice of appeal was timely. The defect in the notice was
    not jurisdictional and it was therefore forgivable. Fed. R.
    App. P. 3(a)(2).
    A more interesting jurisdictional issue has to do with the
    fraud suit itself. A premature notice of appeal becomes
    effective on the denial of a pending motion only if the
    motion is one enumerated in Fed. R. App. P. 4(a)(4)(A), see
    Fed. R. App. P. 4(a)(4)(B)(i), such as a motion to alter or
    amend judgment under Fed. R. Civ. P. 59(e). The defendants
    did file a motion to amend the judgment to include an
    injunction against Fogel’s seeking arbitration. But it was not
    a Rule 59(e) motion because it was filed more than 10 days
    after the judgment sought to be amended—that is, the
    judgment dismissing the fraud suit. So it did not extend
    Fogel’s deadline for filing his notice of appeal from that
    judgment.
    But Fogel’s appeal from that judgment is saved by the
    following sentence in the district judge’s minute order di-
    recting the entry of judgment: “All pending motions are
    terminated.” One of those motions was the defendants’
    motion to bar arbitration. That motion was denied by the
    language we just quoted. A Rule 58 judgment was entered,
    Nos. 04-1599, 04-2353                                            9
    pursuant to the minute order. That was a final and
    appealable judgment because nothing remained pending in
    the district court (all motions having been terminated,
    remember), and the defendants’ subsequently filed motion
    to amend the judgment was a nullity, as the district judge
    failed to realize in granting it. Cf. Salton, Inc. v. Phillips
    Domestic Applances & Personal Care B.V., No. 04-1042, 
    2004 WL 2801691
    , at *1 (7th Cir. Dec. 7, 2004).
    The motion cited no rule that authorizes a district judge to
    revise a final judgment; cited, in fact, no rule at all. The
    logical rule to cite would have been Fed. R. Civ. P. 60(b), the
    deadline for filing a Rule 59(e) motion having passed.
    Instead of citing Rule 60(b) or any other rule or doctrine
    governing postjudgment motions, the defendants invoked
    Nelson v. Adams, USA, Inc., 
    529 U.S. 460
     (2000), for the pro-
    position that a district court has the authority to revise a
    judgment to grant additional relief provided that the party
    against whom the judgment is entered has an opportunity
    to be heard on the matter. What Nelson actually holds is that
    Rule 15(a), governing the amending of complaints, cannot
    be used after final judgment has been entered to add
    another party to the judgment. The case does not suggest
    that a party can ignore the limitations that Rules 59(e) and
    60(b) place on motions to amend final judgments. Even if
    the defendants’ motion were construed as one under Fed. R.
    Civ. P. 60(b), it would not arrest the 30-day limit for filing a
    notice of appeal from a final judgment; and so Fogel was
    correct to file that notice within 30 days of the final judg-
    ment in the fraud suit, Browder v. Director, Department of
    Corrections, 
    434 U.S. 257
    , 263 n. 7 (1978); Hall v. Life Ins. Co.
    of North America, 
    317 F.3d 773
    , 775 (7th Cir. 2003); American
    Federation of Grain Millers, Local 24 v. Cargill Inc., 
    15 F.3d 726
    ,
    728 (7th Cir. 1994); Cody, Inc. v. Town of Woodbury, 
    179 F.3d 52
    ,
    56 (2d Cir. 1999) (per curiam); cf. Simmons v. Ghent, 
    970 F.2d 10
                                          Nos. 04-1599, 04-2353
    392, 393 (7th Cir. 1992); Kraus v. Consolidated Rail Corp., 
    899 F.2d 1360
    , 1362 (3d Cir. 1990), even though the defendants’
    motion to amend was pending. Hatfield v. Board of County
    Commissioners, 
    52 F.3d 858
    , 861-62 (10th Cir. 1995); Marshall
    v. Shalala, 
    5 F.3d 453
    , 454 (10th Cir. 1993). The notice of
    appeal was not premature. But to challenge the amended
    judgment, and thus the injunction, Fogel would have had to
    file a new notice of appeal, and he failed to do so. So the
    appeal from the injunction must be DISMISSED for want of
    appellate jurisdiction, and so we do not address the issue of
    res judicata. The dismissal of the fraud suit and the denial
    of sanctions are AFFIRMED.
    A true Copy:
    Teste:
    _____________________________
    Clerk of the United States Court of
    Appeals for the Seventh Circuit
    USCA-02-C-0072—12-29-04