Frederick v. Gaca ( 2021 )

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except
in the limited circumstances allowed under Rule 23(e)(1).
2021 IL App (3d) 210095-UOrder filed December 29, 2021
____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
2021
THOMAS J. FREDERICK, ) Appeal from the Circuit Court
) of the 12th Judicial Circuit,
Plaintiff-Appellee, ) Will County, Illinois.
)
v. ) Appeal Nos. 3-21-0095
) 3-21-0104
TERRY L. GACA, and JANET L. WAYMAN, ) Circuit Nos. 19-CH-1237
Individually and as Trustee of the Janet L. ) 20-CC-7
Wayman Trust, )
) Honorable Theodore J. Jarz,
Defendants-Appellants. ) Judge, Presiding.
____________________________________________________________________________
JUSTICE SCHMIDT delivered the judgment of the court.
Presiding Justice McDade and Justice Lytton concurred in the judgment.
ORDER
¶1 Held: This court lacks jurisdiction to consider an appeal from the denial of a
discovery motion for additional disclosures. The trial court did not err when
it denied plaintiff’s motion to lift the stay of the civil proceedings.
¶2 This consolidated interlocutory appeal involves an order staying the proceedings in a civil
action brought by plaintiff, Thomas Frederick, against defendants, Terry L. Gaca, and Janet
Wayman, individually and as trustee of the Janet L. Wayman Trust. Frederick appeals, arguing the
trial court erred in staying the civil proceedings. The civil action resulted in Frederick filing a
petition for adjudication of indirect criminal contempt against defendant Gaca. Frederick also
appeals an order denying his motion for additional disclosures in the contempt proceedings. We
dismiss the appeal in part, affirm in part, and remand for further proceedings.
¶3 I. BACKGROUND
¶4 On August 26, 2019, Frederick filed a multicount complaint against defendants, Terry Gaca
and Janet Wayman, individually and as trustee of the Janet L. Wayman Trust. Count I alleged
public nuisance. Count II alleged conspiracy to create a public nuisance. The remaining counts
alleged various violations of the city of Naperville Zoning Ordinance, including operating a
boarding house (counts III, IV); operating a parking and storage facility (counts V, VI), storing
trucks in excess of the allowable weight and at unlawful times (counts VII, VIII); parking a trailer
(count IX); not using required hard surface for the standing, loading, and unloading motor vehicles
(count X); and parking unlicensed vehicles on the property (count XI). All counts concerned
residential property owned by the trust on Lisson Road in Naperville and located next door to
Frederick’s house. The complaint sought preliminary and permanent injunctive relief as well as
attorney fees and costs.
¶5 Frederick sought a preliminary injunction to enjoin the defendants from using the property
for vehicle parking and storage. A hearing took place on the motion for injunctive relief on
November 19, 2019.
¶6 Michael Menichini testified. He was a special process server who unsuccessfully attempted
to serve various documents at the property four times. He observed approximately 20 vehicles
parked on the property, including cars, pickup trucks, delivery trucks, and a heavy-duty work truck.
On two visits, he counted 23 vehicles. The surface on which the vehicles were parked looked like
packed dirt and crushed materials.
-2-
¶7 Janet Wayman testified. She lived on the property at issue with Gaca, her husband, from
1996 to late October 2018. The house had six bedrooms. Six people were currently living in the
house and two others had lived there previously. Each tenant had a vehicle. She acknowledged
there were more than 15 vehicles parked and stored on the property, and there were box trucks
parked there for several months. The property was not used for storage, but people did pay to park
there. She was aware people were paying to park. She did not formally authorize Gaca to use the
property as a parking facility and would not have authorized the use if she had known it was in
violation of the zoning ordinance. The Terry L. Gaca Trust now owned the property, which was
transferred from her trust the week prior to the hearing. The transfer was made to balance the value
of their trusts. She was not involved in her husband’s business.
¶8 Gaca testified. He lived at the Lisson house until December 2018. He had paying tenants
beginning in January 2019. In total, six people lived in the house and two other people had
previously lived there. There was one vehicle per tenant. He accepted payment for parking and
storage of nontenant-owned vehicles on the property beginning in February 2019. There were
approximately 24 to 26 vehicles there in November 2019 and other vehicles had been parked there
but were no longer on the property. The driveway was crushed asphalt and the vehicles were at all
times parked on the asphalt. He denied he placed an ad on Craigslist that counsel downloaded on
November 11, 2019, regarding renting parking space at the property. To his recollection, he did
not authorize an ad on Spacer, also downloaded on November 11, 2019. Gaca explained he placed
ads on Craigslist many times for parking and did not know when he stopped. On cross-
examination, Gaca stated that the property was a shared home with six tenants and an oral lease.
The rent included parking and utilities. He did not believe the use was in violation of any local
ordinances.
-3-
¶9 Frederick testified. He offered his interpretation of the Naperville zoning ordinances and
opined that the defendants violated the ordinances by housing individuals who were not a family
in a single-family dwelling and by operating a parking facility, which was also not a permitted use
under the local ordinances.
¶ 10 The trial court found that parking for hire was not a permitted use for the property and
allowable parking was only by the tenants as accessory to their living in the house. The court
described the zoning violations as “willful” and “crafty.” The trial court rejected an interpretation
that a single-family dwelling meant only a single family could live on the property. The court also
rejected Frederick’s claim that the defendants were running the parking operation as a home
business. It granted Frederick’s motion for a preliminary injunction and ordered the defendants to
remove the vehicles on the property except those belonging to Gaca, Wayman, the trust, or the
tenants.
¶ 11 On January 2, 2020, attorney Sean Sullivan appeared as substitute counsel for defendants.
¶ 12 On January 27, 2020, Sullivan filed an emergency motion to withdraw. The motion cited a
total breakdown in communication between Sullivan and defendants, which rendered it impossible
to file responses in good faith pursuant to the court-ordered deadline.
¶ 13 On January 28, 2020, Sullivan’s colleague appeared at a hearing before Judge Jarz. Counsel
informed the court that:
“[r]ecent interactions with the client culminated in a six-page e-mail from
the client on Sunday making it clear that the client did absolutely insist on
a course of action that the attorney here, the lead attorney here, has a
fundamental disagreement, feels that he cannot pursue on behalf of the
client.
-4-
The reason that it’s an emergency is that there are responses to
discovery and outstanding pleadings due on the 31st. And this has fractured
the attorney-client relationship such that we’re really in a bind as to what
can be done for this client, so we needed to come in as quickly as possible
to bring this before your Honor”
The court allowed the motion and provided defendants 21 days to obtain counsel. However, the
court maintained the deadlines established in the case. Defendants had to respond to Frederick’s
motion for partial summary judgment, answer the complaint, and respond to outstanding discovery
by January 31, 2020.
¶ 14 On January 29, 2020, Joseph Nichele, of Broida and Nichele, Ltd., filed an appearance on
behalf of defendants.
¶ 15 Defendants did not file an answer to the complaint, respond to discovery, or respond to
Frederick’s motion for partial summary judgment by the January 31, 2020, deadline.
¶ 16 On February 24, 2020, defendants filed a motion to dismiss the complaint and to dissolve
the preliminary injunction as moot. The motion claimed that the Lisson property was not currently
used as a boarding house but, instead, it had two boarding rooms in compliance with the municipal
code. Attached to the motion was Gaca’s affidavit attesting he moved back into the Lisson property
on January 16, 2020. He averred that he lived in the home as the owner occupier with only two
renters (August Brooks and Jeffrey Byron). Gaca stated that all other prior occupants—including
Sean Sealy—had moved out of the home.
¶ 17 On February 26, 2020, Judge Jarz denied defendants’ motion to dismiss the complaint and
dissolve the preliminary injunction. Judge Jarz granted Frederick’s motion for partial summary
judgment (counts III through VI, VIII, XI, home occupations violations) and entered a permanent
-5-
injunction enjoining the defendants from operating a boarding house or a parking or storage facility
or engaging in unlawful home occupations. Judge Jarz found issues of fact remained regarding the
public nuisance and conspiracy to commit public nuisance counts (counts I, II).
¶ 18 On March 11, 2020, Frederick moved for the entry of an order of default against defendants
as to the remaining claims for public nuisance and conspiracy to create a public nuisance.
Frederick’s motion sought a default against defendants as a sanction for repeated violations of
court order requiring them to respond to Frederick’s interrogatories and document production
requests. Frederick contended that defendants’ responses to discovery were provided after the
court-ordered deadline and deficient on their face. Additionally, Frederick sought a finding of an
adverse inference against defendants in all future proceedings based on their failure to produce
information requested by Frederick in discovery. Frederick also asked to prohibit defendants from
offering evidence in all future proceedings as to any issues covered by Frederick’s discovery
requests. Alternatively, Frederick sought an order requiring defendants to respond to Frederick’s
discovery requests.
¶ 19 On March 18, 2020, Frederick moved for attorney fees. The same day, Frederick filed a
motion for sanctions against Gaca. The motion sought monetary sanctions for raising frivolous
defenses in support of Gaca’s motion to dismiss. Alternatively, Frederick asked the court to order
defendants to produce all documents relating to payments made by tenants residing at the Lisson
property or using the property for parking or storage. Frederick also asked the court to hold an
evidentiary hearing at which defendants would be ordered to testify concerning such payments.
Frederick sought a monetary sanction in the amount of the gain defendants received from the
unlawful operation of the Lisson property.
-6-
¶ 20 On March 25, 2020, defendants filed an interlocutory appeal from the order denying their
motion to dismiss and granting Frederick’s motion for partial summary judgment. On appeal,
defendants argued—among other things—that Gaca lived in the home with only two other
individuals. Defendants claimed that this complied with the municipal code and the trial court
should have granted defendants’ motion to dismiss and denied Frederick’s motion for partial
summary judgment.
¶ 21 While defendants’ appeal remained pending, Frederick filed a motion to supplement the
record in the trial court to support his motions for an order of default and for sanctions on June 9,
2020. The motion alleged that Gaca attempted to perpetrate fraud on the court. The motion
contained the sworn statement of Sealy. Sealy stated that Gaca’s affidavit contained false
statements, including that Sealy “no longer reside[d]” at the Lisson property, and “[c]urrently
occupants of the Lisson property besides [Gaca], as owner, are August Brooks and Jeffrey Byron
as tenants.” Sealy averred that Gaca’s statement that Sealy no longer lived at the property was
false. Sealy stated that he was still residing at the property as the date of his sworn statement (June
1, 2020) and had done so continuously since April 4, 2019.
¶ 22 On June 11, 2020, defendants’ attorney, Joseph Nichele, filed a motion to withdraw.
¶ 23 On June 12, 2020, Judge Jarz granted Frederick’s motion for leave to supplement the
record. Judge Jarz continued Frederick’s pending motions for default, attorney fees, and other
sanctions.
¶ 24 On June 22, 2020, Frederick filed a petition for adjudication of criminal contempt against
defendant Gaca. The petition alleged that Gaca perpetrated fraud on the court by knowingly filing
false affidavits indicating that Sean Sealy no longer lived at the Lisson property.
-7-
¶ 25 On June 25, Judge Jarz granted Nichele’s motion to withdraw as counsel for defendants.
Judge Jarz allowed attorney Dann Duff to file an appearance on behalf of defendants. Judge Jarz
entered an order continuing Frederick’s pending motions until this court decided defendants’
appeal. Judge Jarz transferred the proceedings on Frederick’s petition to adjudicate criminal
contempt to Judge Carlson in the criminal division. Judge Jarz also appointed plaintiff’s attorneys
Bryan Kopman and Jeffrey Archambeault of Kavanagh, Grumley & Gorbold, LLC, to prosecute
the petition for adjudication of criminal contempt.
¶ 26 On July 7, 2020, Frederick filed a motion for leave to serve discovery requests on Gaca in
the civil action. Relevant to this appeal is Frederick’s request to serve Gaca with a second set of
requests for admission. Frederick claimed the “majority of the requests for admission simply seek
to confirm that the numerous false and misleading statements made or caused to be made by
Defendant Gaca that Sean Sealy no longer resided at the Lisson Property were made knowingly
and for the purpose of falsely arguing that Defendant Gaca was no longer operating a boarding
house at the Lisson Property[.]” Frederick argued that if Gaca asserted his fifth amendment
privilege against self-incrimination in response to the requests to admit, then Gaca’s invocation of
the privilege would support the entry of both summary judgment and default judgment against
Gaca.
¶ 27 On August 5, 2020, counsel for Frederick appeared before Judge Carlson regarding the
petition for adjudication of criminal contempt. After discussing how the criminal matter would
proceed, Judge Carlson stated,
“Judge Jarz may not like it, but I’m going to stay all proceedings in that
matter until we figure out what’s going on because obviously there are Fifth
-8-
Amendment issues, there are all sorts of things. So I will issue a stay on all
matters in that or all issues in that matter.”
Judge Carlson added, “I will reach out to Judge Jarz and until we figure out what we are doing
with this I’m entering an order staying those proceedings to protect everybody’s due process
rights.”
¶ 28 On August 6, 2020, Judge Jarz entered an agreed order staying all proceedings in the civil
case pursuant to the order entered by Judge Carlson.
¶ 29 On August 13, 2020, attorney Duff moved to withdraw as counsel for defendants.
¶ 30 On August 21, 2020, the parties appeared before Judge Carlson regarding the contempt
proceedings. 1 After discussing logistics, Judge Carlson noted,
“I did talk to Judge Jarz about the stay that I put in place. He was concerned
because there is an issue with one of the attorneys [withdrawing].
***
I told Judge Jarz I have no problem with that. I mean that’s a
procedural matter. I am simply here to protect Mr. Gaca’s Fifth Amendment
rights. So that’s why I imposed a stay. I think Judge Jarz is clear on that
order. So quite frankly I guess what I’m going to do now is I’m going to tell
you one thing. There are to be no discussions about the civil case during the
pendency of this.
***
1
Attorney Donald DeWilkins appeared on behalf of defendants in the criminal case. He eventually
withdrew as counsel for defendants.
-9-
I want to make it crystal clear, because you’re asking for
something quite serious. I understand the allegations quite frankly are
disturbing, at least as far as the process and lawyers go. So I want to make
sure that everybody is on board and understands that we are [taking] this
very, very seriously and this is not going to be sort of a tool to resolve
some civil dispute.
***
So with that being said, what I’m going to do is I am going to put
Mr. Gaca on a 25 thousand personal recognizance bond.”
¶ 31 On August 25, 2020, Judge Jarz granted attorney Dann Duff’s motion to withdraw as
counsel for defendants.
¶ 32 On October 23, 2020, this court issued its opinion in defendants’ appeal. This court
affirmed the court’s order granting partial summary judgment in favor of plaintiff. See Frederick
v. Gaca, 2020 IL App (3d) 200154. We rejected defendants’ argument that the trial court erred in
granting Frederick’s motion for partial summary judgment and entering a permanent injunction
prohibiting defendants’ from operating their home as a boarding house. This court rejected
defendants’ “claim that the house was now occupied by Gaca as owner and two individuals to
whom he rented boarding rooms, which they claim[ed] was a lawful use under the zoning
ordinance.” Id. ¶ 37. We held, “[t]his conduct suggests that the defendants will continue to use the
property, including renting rooms, based on an incorrect interpretation of the zoning ordinances.”
Id. This court added:
“As evidenced by the defendants’ transformation of the boarding or ‘shared’
house to an owner/occupied residence with merely two boarders renting
- 10 -
rooms, it seems likely the defendants will continue to operate the property
based on an incorrect interpretation of the zoning ordinances. The harm of
likely repeated violations makes damages ‘difficult or impossible’ to
measure. No available remedy would relieve Frederick of the defendants’
wrongful use of the property neighboring his property.” Id. ¶ 38.
This court’s mandate did not issue until December 7, 2020.
¶ 33 On November 10, 2020, Judge Carlson allowed attorney Jordan Kielan to file his
appearance on behalf of defendants. At the hearing, Judge Carlson denied plaintiff’s motion to
modify defendant Gaca’s bond to require Gaca to comply with the permanent injunction. Judge
Carlson explained the reason for the stay:
“What I did was quite frankly to make it at least more manageable,
is to stay all proceedings in the civil case so that we can figure out what it
is that is going on and what—quite frankly, what the contempt is. And so I
figured the best way to do this is to have it in one place, a one-stop shop for
lack of a better way of describing it.”
¶ 34 On December 9, 2020, the city of Naperville filed a petition to intervene in the civil action
against defendants.
¶ 35 On December 15, 2020, Frederick filed a motion asking Judge Carlson to vacate the orders
imposing a stay of the civil proceedings and requiring any motions for injunctive relief or to
enforce the permanent injunction in the civil case to be brought before Judge Carlson. Frederick
argued that Judge Carlson lacked jurisdiction to impose a stay over the civil proceedings.
Additionally, Frederick argued that a stay was not warranted in the civil case.
- 11 -
¶ 36 On January 12, 2021, the parties appeared before Judge Carlson on plaintiff’s motion to
vacate Judge Carlson’s orders staying the proceedings in the underlying civil matter. After hearing
arguments, the court took the matter under advisement.
¶ 37 On January 15, 2021, Frederick filed a motion for leave to file a second amended petition
for adjudication of criminal contempt. The motion sought to
“simplify this criminal contempt case by essentially reducing it to a single
question for trial. Did Respondent act willfully when he falsely stated and
caused others to falsely state in affidavits that only three individuals—
Respondent, August Brooks (“Brooks”), and Jeffrey Byron (“Byron”)—
were occupying or residing at 2401 Lisson Road in Naperville, Illinois ***
in affidavits that Respondent filed in Frederick v Gaca, No 19 1237 *** on
February 24, 2020?”
The motion added, “In addition to simplifying the charges against Respondent, the proposed
Second Amended Petition would make clear there is no overlap whatsoever between these charges
and the issues remaining to be determined in the Underlying Action.” Additionally, Frederick
argued, “the stay in the Underlying Action should be lifted. Respondent’s Fifth Amendment rights
will not be jeopardized by further proceedings on the Petitioner’s remaining claims and the City
of Naperville’s proposed claims, which have nothing to do with the single, narrow issue presented
in this criminal contempt proceedings.”
¶ 38 On February 5, 2021, Frederick filed a motion for additional disclosures pursuant to Illinois
Supreme Court Rule 413(e) (eff. July 1, 1982). Frederick sought the disclosure of “any
communications, whether oral or written, including without limitation statements, memoranda,
emails, and notes, between Respondent and his former attorneys *** about the identity of any
- 12 -
person occupying or residing” at the Lisson property “during or after February 2020.”
Specifically, Frederick sought disclosure of statements between Gaca and attorneys Sullivan and
Nichele regarding whether Gaca lied by representing that Sealy no longer lived at the Lisson
property in February 2020. In addition to relying on Sealy’s sworn statement to establish Gaca
committed fraud in his affidavit, Frederick also attached a copy of a verified complaint filed by
Gaca against Sealy on June 19, 2020. Gaca’s complaint for forcible entry and detainer alleged
Gaca served Sealy with 30 days’ notice to terminate their month-to-month rental tenancy in
January 2020. However, Sealy failed to leave the premises as of the date of the filing of the
complaint. Frederick acknowledged these communications as being protected by the attorney-
client privilege. However, Frederick contended the crime-fraud exception to the rule applied where
Gaca used their services to make false statements about the occupants of the Lisson property.
¶ 39 On March 2, 2021, the parties appeared before Judge Carlson regarding Frederick’s motion
to lift the stay and motion for additional disclosures. Judge Carlson denied both Frederick’s
motions.
¶ 40 On March 2, 2021, Frederick filed a motion to lift the stay before Judge Jarz in the civil
case. On March 5, 2021, Judge Jarz denied Frederick’s motion to lift the stay and granted the city
of Naperville’s petition to intervene.
¶ 41 Frederick appeals.
¶ 42 II. ANALYSIS
¶ 43 A. Frederick’s Motion for Additional Disclosures
¶ 44 On appeal, Frederick contends the trial court erred when it denied his motion for the
disclosure of Gaca’s communications with two of his former attorneys (Nichele and Sullivan). As
an initial matter, defendants contend that this court lacks jurisdiction to consider the court’s
- 13 -
decision to deny Frederick’s motion. Frederick filed his interlocutory appeal pursuant to Illinois
Supreme Court Rule 604(a)(1) (eff. July 1, 2017). Rule 604(a)(1) provides:
“(1) When State May Appeal. In criminal cases the State may appeal
only from an order or judgment the substantive effect of which results in
dismissing a charge for any of the grounds enumerated in section 114-1 of
the Code of Criminal Procedure of 1963; arresting judgment because of a
defective indictment, information or complaint; quashing an arrest or search
warrant; or suppressing evidence.” Id.According to defendants, jurisdiction is lacking because the denial of Frederick’s discovery request
is not a suppression of evidence and is not appealable under Rule 604. We agree.
¶ 45 The trial court here did not suppress evidence and did not bar the admission of any evidence
of Gaca’s communications with Sullivan or Nichele. Instead, the court denied Frederick’s request
to issues subpoenas to each attorney. In other words, the trial court only ruled that it would not
compel the production of such evidence. Ministerial or administrative orders that regulate only
the procedural details of litigation cannot be the subject of an interlocutory appeal. In re A Minor,
127 Ill. 2d 247, 262 (1989). Examples of such nonappealable orders include subpoenas, discovery
orders, and orders relating to the court’s control of its docket. Short Brothers Construction, Inc. v.
Korte & Luitjohan Contractors, Inc., 356 Ill. App. 3d 958, 960 (2005). The denial of Frederick’s
request to issue subpoenas—a discovery request—falls within the category of nonappealable
orders. Although Frederick claims the court’s ruling effectively suppressed evidence, the decision
leaves open the possibility for the admission of any evidence Frederick procures at trial. The
court’s order does not prevent the information sought from being presented at trial. Accordingly,
we lack jurisdiction to consider an appeal from the court’s denial of Frederick’s discovery motion.
- 14 -
¶ 46 B. Motion to Lift the Stay
¶ 47 Next, Frederick contends that Judge Carlson and Judge Jarz erred in denying his motion to
vacate the orders Judge Carlson entered staying the proceedings in the underlying civil case.
Frederick contends that Judge Carlson lacked jurisdiction to stay the civil proceedings. Although
Frederick contends Judge Carlson lacked jurisdiction, we note that Judge Jarz (the judge presiding
over the civil proceedings) later entered an order adopting Judge Carlson’s decision to stay the
civil proceedings. Frederick does not argue that Judge Jarz lacked jurisdiction to stay the civil
proceedings. Therefore, we need not address Judge Carlson’s jurisdiction and consider only
whether Judge Jarz erred in staying the civil proceedings.
¶ 48 At the outset, Frederick contends that we should apply a de novo standard of review
because Judge Carlson exceeded his jurisdictional authority when he stayed the civil proceedings.
However, as noted above, there is no claim that Judge Jarz lacked jurisdiction to enter the stay.
Therefore, we do not apply a de novo standard. Instead, when evaluating whether to stay a civil
suit to prevent compulsory self-incrimination, this court applies the abuse of discretion standard
of review. Jacksonville Savings Bank v. Kovack, 326 Ill. App. 3d 1131, 1137 (2002). An abuse of
discretion occurs when “the ruling is arbitrary, fanciful, or unreasonable, or when no reasonable
person would take the same view.” Bovay v. Sears, Roebuck & Co., 2013 IL App (1st) 120789, ¶
26. Upon review, we find Judge Jarz’s decision to stay the proceedings to protect Gaca’s fifth
amendment privilege is not arbitrary, fanciful, or unreasonable. We hold Judge Jarz did not abuse
his discretion in imposing the stay of the civil proceedings.
¶ 49 In this case, Gaca never moved to stay the civil proceedings. Instead, the trial court sua
sponte entered an order staying the proceedings. When he adopted Judge Carlson’s decision to
stay the civil case, Judge Jarz explained:
- 15 -
“Well, what I was going to tell you is that in my discretion as far as
the various, I think there is about, like, six different elements of that CHB
Uptown Properties case. As I get it, I have some discretion deciding these
issues and I think that the likelihood of there being some infringement on
Fifth Amendment rights is significant in this case, and I don’t want to tread
on anything that is going to interrupt or upset the apple cart and cause
additional extra issues for Judge Carlson.”
¶ 50 Ordinarily, a court will consider certain factors before a defendant has testified or provided
evidence of his wrongful conduct in determining whether a stay should be granted when a civil
proceeding is pending and there is a criminal investigation pending or likely to occur. United States
v. Kordel, 397 U.S. 1 (1970). Those factors include: (1) the plaintiff’s interest in an expeditious
resolution of the civil case and any prejudice to the plaintiff in not proceeding; (2) the interests of
and burdens on the defendant, including the extent to which defendant's fifth amendment rights
are implicated; (3) the convenience to the court in managing its docket and efficiently using
judicial resources; (4) the interests of persons who are not parties to the civil proceeding; and (5)
the interests of the public in the pending civil and criminal actions. Kovack, 326 Ill. App. 3d at
1136.
¶ 51 As to Frederick’s interest, he has an interest in a prompt resolution his civil claims. This
factor is not significant under the present circumstances. The record shows that the criminal
contempt proceeding was scheduled for trial setting. He can promptly pursue his civil claims once
the criminal contempt proceedings conclude.
¶ 52 As to Gaca’s interest, whether a party’s fifth amendment right is implicated is a significant
factor for the trial court to consider in deciding whether to stay civil proceedings, “but it is only
- 16 -
one consideration to be weighed against others.” Federal Savings & Loan Insurance Corp. v.
Molinaro, 889 F.2d 899, 902-03 (9th Cir.1989). When issues in a criminal matter significantly
overlap with those in the civil proceedings, self-incrimination is more likely. Kovack, 326 Ill. App.
3d at 1137. Here, the criminal and civil proceedings have a significant overlap. The criminal
contempt proceeding is directed toward the legitimacy of Gaca’s filings in the civil suit. Frederick
also pursued discovery and sanctions in the civil suit based on Gaca’s alleged false statements.
Frederick also sought to use Frederick’s potential use of the fifth amendment against Gaca in the
civil suit. Although Frederick relies on potential incriminating statements Gaca made in the past,
Frederick’s pending motions in the civil suit may still implicate Gaca’s fifth amendment right, and
this factor favors staying the civil proceedings until the criminal contempt proceeding concludes.
¶ 53 As to the convenience of the court, the criminal contempt proceeding may resolve many
significant issues in the civil suit. The court is justified in staying the civil proceedings to better
manage the overall proceedings. The court’s need to manage its docket favors entering a stay.
¶ 54 Finally, the interest of nonparties and the public favor the prompt resolution of civil
proceedings. The citizens of Naperville have an interest in promptly resolving the public nuisance
created by the unlawful operation of boarding houses. This consideration must also be balanced
against the public’s interest in the protection and exercise of Gaca’s fifth amendment right. This
factor is neutral.
¶ 55 Having reviewed the trial court’s decision under the circumstances, we conclude the court
did not abuse its discretion in sua sponte issuing a stay of the civil proceedings. Accordingly, the
court did not err when it denied Frederick’s motion to vacate and lift the stay of the civil
proceedings.
¶ 56 III. CONCLUSION
- 17 -
¶ 57 For the foregoing reasons, we dismiss in part and affirm in part the judgment of the
circuit court of Will County and remand for further proceedings.
¶ 58 Dismissed in part, affirmed in part, and remanded for further proceedings.
- 18 -