Windy City Limousine Company, LLC v. Sal Milazzo , 2018 IL App (1st) 162827 ( 2019 )

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Appellate Court Date: 2019.03.28
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Windy City Limousine Co. v. Milazzo, 2018 IL App (1st) 162827
Appellate Court WINDY CITY LIMOUSINE COMPANY LLC, an Illinois Limited
Caption Liability Company, and WINDY CITY LIMOUSINE MANAGER
LLC, an Illinois Limited Liability Company, Plaintiffs-Appellants, v.
SAL MILAZZO, JANET MILAZZO, and SIGNATURE
TRANSPORTATION GROUP LLC, an Illinois Limited Liability
Company, Defendants (Sal Milazzo and Janet Milazzo, Defendants-
Appellees).
District & No. First District, Fourth Division
Docket No. 1-16-2827
Filed December 20, 2018
Decision Under Appeal from the Circuit Court of Cook County, Nos.
Review 15-MC1-600041, 15-MC1-600042; the Hon. Neil H. Cohen, Judge,
presiding.
Judgment Affirmed.
Counsel on Adrian Vuckovich and Kathryne R. Hayes, of Collins Bargione &
Appeal Vuckovich, of Chicago, for appellants.
Anthony Pinelli, of Chicago, for appellee Sal Milazzo.
Susan M. Pavlow, of Chicago, for other appellee.
Panel JUSTICE BURKE delivered the judgment of the court, with opinion.
Justices Reyes concurred in the judgment and opinion.
Justice Gordon specially concurred, with opinion.
OPINION
¶1 Windy City Limousine Company LLC and Windy City Limousine Manager LLC
(collectively, Windy City) sued Sal Milazzo (Sal), Janet Milazzo (Janet), and their company,
Signature Transportation Group LLC (Signature), based on the Milazzos’ alleged
misappropriation of Windy City’s confidential information, which they then allegedly used to
create Signature, a competing transportation company. During the course of litigation, the
circuit court entered an agreed order between the parties that granted Windy City a temporary
restraining order, barring the Milazzos from using, accessing, or distributing Windy City’s
confidential information. In the order, the Milazzos also made a representation about their
prior conduct concerning Windy City’s confidential information. Several months later, Windy
City filed a petition seeking to hold both Milazzos in indirect criminal contempt for making a
false representation in the temporary restraining order and violating the order itself. Windy
City then dismissed Janet from the contempt proceedings but later reinstated her. Ultimately,
on the Milazzos’ motion, the circuit court dismissed the petition for failing to allege a violation
of the temporary restraining order and denied Windy City’s motion to reconsider.
¶2 In this appeal, Windy City contends that the circuit court erred when it dismissed its
petition for indirect criminal contempt against the Milazzos and denied its motion to
reconsider. For the reasons that follow, we affirm the court’s rulings.
¶3 I. BACKGROUND
¶4 Since 2006, Windy City has operated a limousine and transportation company with a fleet
of more than 200 vehicles primarily in the Chicagoland area. Windy City had employed the
Milazzos, Sal as its vice president of sales and operations, and Janet as its controller. However,
during a meeting on February 14, 2014, the Milazzos were fired.
¶5 A. Underlying Litigation
¶6 In April 2014, Windy City filed a complaint against the Milazzos and Signature, alleging
that, after Windy City fired the Milazzos, they misappropriated its confidential information
and used the information to create Signature, a direct competitor.
¶7 The Milazzos and Signature filed an answer, admitting that, due to the Milazzos’ former
positions at Windy City, they had access to its confidential information. They also admitted
that, during the morning of February 15, 2014, after they were fired, “Janet copied the data in
her Outlook file at Windy City,” but they could not determine the “exact contents of the file” at
the time they filed the answer. The Milazzos also filed various counterclaims against Windy
City, including breach of contract and retaliatory discharge.
¶8 Windy City subsequently filed an amended complaint, alleging that, after the Milazzos
learned of their firing at the February 14, 2014, meeting and while the meeting was still
ongoing, Sal left the room and called Ryan Kaszmarski, Windy City’s information technology
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manager. Sal asked Kaszmarski to download all of his computer files, but Kaszmarski refused.
Early the following morning, according to the complaint, the Milazzos accessed a plethora of
Windy City’s records, including financial information, customer information, employee
information, and marketing information. The complaint alleged that they did this by e-mailing
three personal e-mail addresses of Janet’s from her Windy City e-mail address and each time
including a link to a folder that contained Windy City’s information.
¶9 The complaint asserted that the Milazzos used this information and unlawfully created
their new company, Signature, to directly compete with Windy City. The complaint requested
that the Milazzos and Signature be temporarily and permanently enjoined from competing
with Windy City and using its confidential information. Windy City brought several counts
against them including one based on a violation of the Illinois Trade Secrets Act (765 ILCS
1065/1 et seq. (West 2014)), one based on tortious interference with existing and prospective
contractual relations, as well as one based on alleged conversion of company assets.
¶ 10 In the Milazzos’ and Signature’s answer, they again admitted that, during the morning of
February 15, 2014, Janet copied data in her Outlook file at Windy City. They also stated again
that they could not determine the contents of that file at the time.
¶ 11 Shortly thereafter, on May 16, 2014, the parties had a court appearance where their
attorneys were present, but the Milazzos themselves were not. The parties’ attorneys presented
the court with an agreed order that granted a temporary restraining order against the Milazzos
and Signature. In the order, prior to the portion specifying the terms of the temporary
restraining order, the parties agreed that, for the purposes of the order, confidential information
would be defined as any nonpublic information related to Windy City’s finances, customers,
marketing efforts, research and development data, and employee information—a definition
that substantially mirrored the definition of confidential information in Windy City’s company
operating agreements. Additionally, the order stated that the Milazzos and Signature:
“hereby represent that they have not, from and after February 14, 2014 to and including
[May 16, 2014], used, reproduced, disclosed or otherwise distributed Confidential
Information, or any materials containing Confidential Information in any manner that
would be a violation of this Order if it had been done after the entry of this Order.”
The order continued and specified the terms of the temporary restraining order, which barred
the Milazzos, Signature, and any of their agents or employees from using, accessing,
reproducing, disclosing or distributing any materials containing Windy City’s confidential
information for any purpose except as necessary to comply with litigation-related discovery.
The order also required the Milazzos to return to Windy City within three days “all
information, documents and property” that contained confidential information and all other
property belonging to Windy City, regardless of whether such information contained Windy
City’s confidential information, as well as identify any person or entity to which the Milazzos
disclosed confidential information.
¶ 12 B. Contempt Proceedings
¶ 13 At some point after the circuit court entered the temporary restraining order, Windy City
believed that the Milazzos’ representation therein about their actions concerning Windy City’s
confidential information from February 14, 2014, to May 16, 2014, was untruthful and also
that they had violated the order itself.
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¶ 14 As a result, on February 5, 2015, Windy City filed a petition for indirect criminal contempt
against both Milazzos. Windy City began its petition by reviewing the facts that led to the
issuance of the temporary restraining order, including the Milazzos’ transfer of information to
three personal e-mail addresses of Janet during the early morning hours of February 15, 2014.
Windy City also pointed out that the Milazzos retained its property, including two laptop
computers, which “revealed use after February 14, 2014.” Windy City then highlighted that, in
the temporary restraining order, specifically paragraph B, the Milazzos represented that they
had not used, reproduced, disclosed or distributed any of its confidential information or any
materials containing its confidential information from February 14, 2014, to May 16, 2014.
Windy City, however, posited that:
“9. The statement in paragraph B was false.
10. Respondents transferred Confidential Information from the two Windy City
computers in violation of the Order of May 16, 2014. Respondents made use of the
Confidential Information in the commencement and conduct of the business of
Signature in competition with the business of Windy City from and after February 14,
2014.
11. The actions of Respondents were not in the actual physical presence of the
Court.
12. The actions of Respondents were contemptuous of the Court, in that
Respondents lied as to their actions from February 14, 2014 until May 16, 2014, and
procured the entry of the TRO by a statement that was knowingly false.
13. The actions of Respondents have continued to be contemptuous until this date,
in that Respondents continue to use the Confidential Information in violation of the
TRO.”
Based on these alleged actions, Windy City requested that the Milazzos be held in indirect
criminal contempt and each sentenced to six months’ imprisonment as well as fined $500.
Windy City’s petition was verified and signed by George Jacobs, its president.
¶ 15 The Milazzos subsequently requested that the Cook County State’s Attorney’s Office
prosecute their criminal contempt charges, which the circuit court denied. On March 3, 2015,
because Windy City had filed its petition for indirect criminal contempt using the same civil
case number as the underlying litigation, the circuit court granted Windy City leave to refile its
petition so that the clerk of the circuit court could issue the petition criminal contempt
numbers. The following day, Windy City refiled an identical copy of its initial petition.
¶ 16 Thereafter, Janet moved for a substitution of judge, which was denied. Windy City then
dismissed the charges against Janet but with leave to reinstate, temporarily leaving only Sal
charged with indirect criminal contempt. The circuit court arraigned Sal and informed him the
case was a criminal matter and of several rights he had, including the right to compulsory
process and the right to present evidence as well as the privilege against self-incrimination and
the prosecution’s burden to prove his guilt beyond a reasonable doubt. The court, however,
told him that, due to the potential punishment he faced, he was not entitled to a jury trial. Sal
acknowledged understanding his rights and entered a plea of not guilty. Later, Windy City
reinstated the charges against Janet, filing an identical petition as before except only naming
her as the one charged. The court arraigned Janet, who likewise entered a plea of not guilty.
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¶ 17 The Milazzos requested bills of particulars, and the circuit court ordered Windy City to
comply, which it did, supplying Sal and Janet with separate, but substantially similar, bills of
particulars. In the bills of particulars, Windy City provided a detailed accounting of the
forensic evidence they believed supported their allegations that the Milazzos should be held in
indirect criminal contempt. The bills of particulars were based primarily on affidavits, all dated
in the year 2014, from Joseph Fazio, a forensic examiner, who examined two laptop
computers, two cell phones and one iPad that Windy City had provided to the Milazzos as part
of their employment, which were returned in April 2014. The bills of particulars, however,
noted that Fazio could not analyze the metadata of the iPad or cell phones because they had
been reset to their factory settings in March 2014, which permanently erased the data that had
been stored in them.
¶ 18 Fazio was able to analyze the laptop computers, one which had been given to Janet and one
which had been given to Sal. Fazio determined that 47 portable storage devices had been
plugged into the computers before and after the Milazzos’ termination from Windy City, but
the Milazzos only turned over 11 of those devices. Based on his analysis of those 11 devices,
Fazio concluded that they had been plugged into a Macintosh computer at some point after the
Milazzos’ firing. Although Fazio did not have access to the Macintosh computer, he could tell
that the portable storage devices contained a plethora of Windy City’s information, including
all of its accounting records, financial statements, payroll data, vehicle loan documentation,
customer lists, and operating cost information. Based on his investigation, Fazio believed that
the Milazzos had plugged the portable storage devices into the laptops provided to them by
Windy City, transferred Windy City’s information onto the devices, plugged those devices into
a Macintosh computer, and then transferred the information onto the Macintosh computer.
¶ 19 Fazio’s analysis of the laptop computer that Windy City had provided to Janet revealed that
portable storage devices had been attached to it on six different occasions following the
Milazzos’ firing and before May 2014. A list attached to Fazio’s affidavit provided the specific
dates and times the portable storage devices purportedly had been attached to Janet’s
computer. However, Fazio was never given access to those portable storage devices, rendering
him unable to conclude whether Windy City information was stored on those specific portable
storage devices. After reviewing “LNK files” on the computer, which could show what files
interacted with portable storage devices, Fazio saw “reference” to portable storage devices
containing sensitive information of Windy City, including its QuickBooks accounting
database, the accounting program that Windy City had used for many years. Fazio also saw a
LNK file referencing a backup of Janet’s Outlook e-mail and contacts. According to Fazio,
nine LNK files had been “interacted” with following the Milazzos’ firing, and he attached a
document providing a list of the observable LNK files with the dates and times of their last
interaction.
¶ 20 Fazio’s examination also revealed that several cloud service accounts—Dropbox, Google
Drive, Sky Drive, and Microsoft One Note—had been accessed using Janet’s computer, and he
saw “reference” to Windy City information on these accounts. All told, Fazio determined that
Janet’s computer accessed the cloud service accounts 62 times after she and Sal were fired, but
Fazio could not determine what actual information the files in the cloud service accounts
contained without access to them. Fazio attached a document providing a list of the files seen
on the cloud service accounts.
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¶ 21 Fazio’s analysis of the laptop computer that Windy City had provided to Sal revealed that
portable storage devices had been attached to it also on six different occasions following the
Milazzos’ firing and before May 2014. A list attached to Fazio’s affidavit provided the specific
dates and times the portable storage devices purportedly had been attached to Sal’s computer.
However, Fazio was never given access to those portable storage devices, rendering him
unable to conclude whether Windy City information was stored on those specific portable
storage devices. After reviewing the “LNK files” on Sal’s computer, Fazio saw “reference” to
portable storage devices containing sensitive information of Windy City, including a reference
to a backup of Sal’s Outlook e-mail and contacts. According to Fazio, 58 LNK files had been
“interacted” with following the Milazzos’ firing, and he attached a document providing a list of
the observable LNK files with the dates and times of their last interaction.
¶ 22 Fazio’s examination also revealed that one cloud service account—Google Drive—had
been accessed using Sal’s computer, and he saw “reference” to Windy City information on this
account. All told, Fazio determined that Sal’s computer accessed the cloud service accounts
178 times after he and Janet were fired, but Fazio could not determine what actual information
the files in the cloud service account contained without access to it. Fazio attached a document
providing a list of the files seen on the cloud service account.
¶ 23 After receiving the bills of particulars, the Milazzos filed a joint motion to dismiss the
indirect criminal contempt petition, contending that it should be dismissed for multiple
reasons. First, the Milazzos argued that the operative date of February 14, 2014, in the
temporary restraining order, wherein they represented that they had not used or distributed any
of Windy City’s confidential information, did not reflect the true agreement of the parties. The
Milazzos posited that April 14, 2014, was the actual operative date agreed to, but it was
changed unbeknownst to them. The Milazzos stated that the order had been negotiated by their
former attorney, John Grady, with Windy City’s attorney, Michael Pildes. And according to
the Milazzos, e-mail correspondences between the attorneys in the week leading up to the
order being entered, which were attached to the motion, revealed that, in all of the proposed
versions, the operative date was April 14, 2014. In fact, according to the Milazzos, in the
e-mail exchanges, both attorneys agreed to a proposed version containing April 14, 2014, as
the operative date. Yet inexplicably, in the version signed by the circuit court, the date was
February 14, 2014. The Milazzos also highlighted that, in the temporary restraining order in
the court’s official file, the order is missing the page containing the operative date of the
Milazzos’ representation. The Milazzos asserted that, because constitutional due process and
fairness prohibited the initiation of a criminal case based upon false or misleading information,
the ambiguity of the operative date mandated dismissal.
¶ 24 Second, the Milazzos argued that the ambiguity of the operative date of the temporary
restraining order also rendered the petition for indirect criminal contempt insufficient because
the contempt charge was premised upon a violation of a court order with an operative date that
did not reflect the parties’ agreement. Third, the Milazzos argued that, in combination, the
petition and bills of particulars failed to sufficiently inform them of the nature of the contempt
charges.
¶ 25 Windy City responded and included an affidavit from Pildes, wherein he acknowledged
that, in earlier exchanges of the proposed temporary restraining order, the operative date of the
Milazzos’ representation was April 14, 2014. However, Pildes averred that, after the e-mail
exchanges with Grady, he noticed the date was an error and it should have been February 14,
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2014. After Pildes had a telephone conversation with Grady, they agreed to change the date to
February 14, 2014. Grady told Pildes that he would make the change and confirm with the
Milazzos. According to Pildes, on May 16, 2014, Grady brought the unsigned order into court,
which contained the date February 14, 2014, and both of them informed the court that their
clients had agreed to the order, which the court subsequently signed. Based on Pildes’s
affidavit, Windy City contended that there was no mistake or ambiguity in the operative date
and therefore dismissal was not warranted on such grounds. Windy City further argued that the
Milazzos had been fully informed of the charges against them based on the bills of particulars.
¶ 26 The circuit court subsequently entered a written order, dismissing the petition. The court
observed that Windy City’s allegation was that the Milazzos had violated the temporary
restraining order based on events occurring prior to the order being entered on May 16, 2014.
The court noted that, when it entered the temporary restraining order, it granted prospective
relief to Windy City by barring certain future conduct by the Milazzos, but it did not
“retroactively enjoin” them and the representation made by them in the order “was not part of
the relief granted.” According to the court, regardless of the veracity of the Milazzos’
representation and the alleged error of the operative date of that representation, it was “not
possible to enjoin a party retroactively.” The court found that the Milazzos could not have
“willfully violated” the temporary restraining order “based on conduct which had occurred
before the entry of the order” and therefore dismissed the petition for failing to allege a
violation of the temporary restraining order. Because of its finding, the court stated that it did
not need to address the Milazzos’ arguments concerning the alleged error of the operative date
of their representation and the alleged insufficiency of the petition and bills of particulars.
¶ 27 Windy City subsequently moved the circuit court to reconsider its dismissal, arguing that
the Milazzos committed contemptuous conduct by violating the temporary restraining order in
multiple manners, including not returning property containing confidential information, lying
to the court about their actions after February 14, 2014, using confidential information in
Signature’s business, and not identifying the people or entities to whom they distributed
confidential information and what information they distributed. Windy City highlighted that
its bills of particulars clearly showed the various ways the Milazzos had violated the temporary
restraining order and posited that, based on its allegations, there were no ex post facto
concerns.
¶ 28 The Milazzos responded that Windy City had not brought forth any newly discovered
evidence or an alleged change in the law warranting a grant of its motion to reconsider. The
Milazzos posited that, in any event, the circuit court properly found that their conduct before
the entry of the temporary restraining order could not form the basis for contempt charges.
¶ 29 Windy City replied, arguing that its motion was proper because it had identified errors in
the circuit court’s application of the law, namely that the Milazzos made a false representation
in the temporary restraining order, they had used and reproduced Windy City’s confidential
information, and they retained its property, all in violation of the temporary restraining order
and constituting contempt.
¶ 30 During a May 23, 2016, hearing on Windy City’s motion to reconsider, the parties began
discussing the sufficiency of the allegations, after which the circuit court intimated that it had
dismissed the petition based on a lack of “specificity” and separately remarked that the petition
was “lacking” in specificity. The court then acknowledged the Milazzos’ representation about
not doing certain actions after February 14, 2014, and stated it wanted additional time to
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reconsider its original ruling. Before concluding the hearing, the court stated that, based on the
Milazzos’ failure to turn over more than 30 portable storage devices and a Macintosh computer
that allegedly contained confidential information of Windy City, it was concerned about
“entrapment” and the portion of the temporary restraining order that required the Milazzos to
return any property that contained confidential information. The court noted that, “if they
return [the portable storage devices and Macintosh computer],” which based on Windy City’s
forensic examination indicated usage after the Milazzos’ firing and the presence of
confidential information, “they admit they did it,” and “if they admit they did it,” they would
have admitted to lying to the court about not doing anything after February 14, 2014. The court
accordingly denied Windy City’s motion to reconsider insofar as it related to the Milazzos’
failure to return any property that contained Windy City’s confidential information because of
the “entrapment” concern. The court stated, however, that it would reserve ruling on the
remainder of the motion to reconsider. The parties subsequently filed additional briefs in
support of their positions.
¶ 31 On September 7, 2016, the circuit court held another hearing on Windy City’s motion to
reconsider. The court noted that it originally raised the “idea” about a petition for indirect
criminal contempt because of its “inherent discretion to run its call and to hold [individuals] in
criminal contempt if they violate the Court’s orders.” Despite this, the court believed the
petition for indirect criminal contempt resulted in the parties’ failure to “keep[ ] their eyes on
the ball *** of what this case is really about.” The court asserted that it would not accept any
party “playing with this system” and using “gamesmanship” but ultimately wanted the parties
to maintain their focus on the civil litigation, not ancillary contempt proceedings.
Nevertheless, the court “believe[d] that [its] original ruling was correct in terms of the
ex post facto nature” and accordingly denied Windy City’s motion to reconsider.
¶ 32 Windy City timely appealed the circuit court’s dismissal of its petition for indirect criminal
contempt and the court’s denial of its motion to reconsider.
¶ 33 II. ANALYSIS
¶ 34 In this appeal, Windy City contends that the circuit court’s dismissal of its indirect criminal
contempt petition against the Milazzos was erroneous for several reasons. First, Windy City
argues that there were no ex post facto concerns because the Milazzos made a false
representation to the court in the temporary restraining order, which constitutes contempt.
Second, Windy City argues that, to the extent the court dismissed the petition based on its
sufficiency, or lack thereof, the ruling was improper as the petition and bills of particulars
sufficiently informed the Milazzos of how they allegedly violated the temporary restraining
order and committed contempt of court. Third, Windy City argues that the issue of entrapment
was irrelevant to the proceedings because the Milazzos never raised the affirmative defense
and the defense was nevertheless inapplicable under the circumstances. Lastly, Windy City
argues that the court also erred in denying its motion to reconsider because the court
improperly justified the ruling by requesting the parties focus their attention on the civil
litigation, not because there was a defect in the petition itself. However, before delving into
Windy City’s specific arguments, we must provide an overview of the law of contempt.
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¶ 35 A. Types of Contempt of Court
¶ 36 Contempt of court has been defined as “ ‘conduct that is calculated to impede, embarrass,
or obstruct the court in its administration of justice or derogate from the court’s authority or
dignity, or to bring the administration of the law into disrepute.’ ” People v. Geiger, 2012 IL
113181, ¶ 26 (quoting People v. Ernest, 141 Ill. 2d 412, 421 (1990)). Courts have the inherent
authority to reprimand contemptuous conduct because “such power is essential to the
maintenance of their authority and the administration of judicial powers.” People v. Simac, 161
Ill. 2d 297, 305 (1994). There are four main types of contempt: direct civil contempt, direct
criminal contempt, indirect civil contempt, and indirect criminal contempt. People v. L.A.S.,
111 Ill. 2d 539, 543 (1986); People v. Gholson, 412 Ill. 294, 298-99 (1952). Properly
identifying the type of contempt is critical because the procedures that must be followed
depend on the type of contempt involved. In re Marriage of Betts, 200 Ill. App. 3d 26, 43
(1990). Additionally, contempt proceedings are sui generis (Milton v. Therra, 2018 IL App
(1st) 171392, ¶ 33), meaning neither the Code of Civil Procedure (735 ILCS 5/1-101 et seq.
(West 2014)) nor the Code of Criminal Procedure of 1963 (Criminal Code) (725 ILCS 5/100-1
et seq. (West 2014)) fully apply. In re Marriage of Betts, 200 Ill. App. 3d at 48-49.
¶ 37 1. Civil and Criminal Contempt
¶ 38 Civil and criminal contempt are distinguished based upon why the contempt charge was
brought. A civil contempt charge is generally brought to compel compliance with a court
order, whereas a criminal contempt charge is brought to punish past conduct, i.e., punishing
conduct that a court order prohibited. People v. Warren, 173 Ill. 2d 348, 368 (1996). In other
words, civil contempt concerns future conduct while criminal contempt concerns past conduct.
Usually, the distinguishing characteristic between civil and criminal contempt is the alleged
contemnor’s ability to purge the “contempt charge by complying with the order the court
sought to enforce.” Milton, 2018 IL App (1st) 171392, ¶ 35. An example of civil contempt is
where a person ignores a court order to pay maintenance to a former spouse. See In re
Marriage of Logston, 103 Ill. 2d 266, 285-87 (1984). In this example, the contempt charge is
brought to compel obedience with the court order. Meanwhile, criminal contempt is a crime.
People v. Totten, 118 Ill. 2d 124, 130 (1987). An example of criminal contempt is where a
party operates a business despite an order prohibiting its operation. See People ex rel. City of
Chicago v. Le Mirage, Inc., 2013 IL 113482, ¶¶ 75-76. In this example, the contempt charge is
brought to punish conduct that violated a court order. But because criminal contempt is
“intended to vindicate the dignity and authority of the court” and is punitive in nature, the court
should not exercise its power to hold a party or individual in contempt lightly. Ernest, 141 Ill.
2d at 421.
¶ 39 2. Direct v. Indirect Contempt
¶ 40 Direct and indirect contempt are distinguished based upon where the contemptuous
conduct occurred. A direct contempt charge is brought when the alleged contemptuous
conduct occurs in the direct presence of a judge, whereas an indirect contempt charge is
brought when the alleged contemptuous conduct occurs outside the direct presence of a judge.
People v. Lindsey, 199 Ill. 2d 460, 468-69 (2002); Simac, 161 Ill. 2d at 306. The crucial
distinguishing factor between direct and indirect contempt is the proof necessary to establish
the contempt charge. In re Marriage of Betts, 200 Ill. App. 3d at 48. Where “the judge does not
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have full personal knowledge of all elements of the contempt” and external proof of facts is
necessary to establish the charge, indirect contempt is the proper characterization. Id. But
where all the facts necessary to prove a contempt charge are known by the judge, direct
contempt is the proper characterization. Id. An example of direct contempt is where an
attorney flagrantly disobeys an evidentiary ruling concerning the questions allowed to be
asked of a witness. See People v. Graves, 74 Ill. 2d 279, 281-82 (1979). In this example, the
judge observes the allegedly contemptuous conduct firsthand, and he or she does not need
external proof to hold the person in contempt. An example of indirect contempt is where an
individual violates a court-ordered injunction. See City of Chicago v. Rago, 188 Ill. App. 3d
482, 483, 487-88 (1989). In this example, the judge does not observe the allegedly
contemptuous conduct firsthand, and he or she must rely on external proof of facts to hold the
person in contempt.
¶ 41 Properly identifying whether a contempt charge is direct or indirect is critical because a
direct contempt charge may be resolved summarily without formal pleadings, notice, or a
hearing, as the alleged conduct was witnessed firsthand by the judge. In re Estate of Lee, 2017
IL App (3d) 150651, ¶ 40. Conversely, when someone is charged with indirect contempt,
regardless of whether it is civil or criminal, the alleged contemnor is entitled to certain due
process protections, including notice and the opportunity to be heard. Id. However, an alleged
civil contemnor is entitled only to minimal due process protections whereas an alleged
criminal contemnor is entitled to substantial due process protections. Id.
¶ 42 Additionally, some decisions in Illinois have carved out a subcategory of direct contempt,
sometimes referred to as constructive direct contempt, which involves conduct that occurs in
the constructive presence of the court. See People v. Javaras, 51 Ill. 2d 296, 299 (1972); In re
Estate of Lee, 2017 IL App (3d) 150651, ¶ 39. An example of constructive direct contempt is
filing a will in probate court known to be spurious. See In re Marriage of Betts, 200 Ill. App.
3d at 48. In this example, although the allegedly contemptuous conduct did not occur directly
in the presence of the judge, the conduct nevertheless occurred within an integral part of the
court. But despite the characterization of this type of conduct as constructive direct contempt,
procedurally it is akin to a charge of indirect contempt because the alleged “contemptuous
conduct must be established by proof of facts of which the trial judge does not have direct
knowledge.” Id. at 59. Thus, allegations of constructive direct contempt may not be resolved
summarily, and the alleged contemnor is entitled to certain due process rights, which depend
upon whether the contempt charge is civil or criminal. See In re Estate of Lee, 2017 IL App
(3d) 150651, ¶ 40.
¶ 43 B. The Instant Case
¶ 44 In this case, based on our review of Windy City’s petition for indirect criminal contempt
against the Milazzos, the two overarching allegations are that (1) they lied in the temporary
restraining order by representing that they had not used Windy City’s confidential information
from February 14, 2014, through May 16, 2014, because they had, in fact, transferred
confidential information from two computers issued to them by Windy City and used the
information to operate Signature and (2) they violated the temporary restraining order by
continuing to use Windy City’s confidential information up to and including the day it filed the
petition.
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¶ 45 We agree with Windy City that criminal contempt was the proper charge here because it
sought to punish the Milazzos for their allegedly past contemptuous conduct, but we disagree
that its petition was purely one for indirect criminal contempt. Although Windy City’s second
allegation is clearly one for indirect criminal contempt because the alleged acts of violating
what the temporary restraining order prohibited occurred outside the judge’s presence, its first
allegation is actually one for constructive direct criminal contempt because the alleged
contemptuous conduct—a false representation in a court document—occurred within a
constituent part of the court. However, as previously discussed, this identification is merely a
distinction without a difference, as a constructive direct criminal contempt charge is treated as
the functional equivalent of an indirect criminal contempt charge because the alleged conduct
must be proven by external facts of which the judge does not have direct knowledge. See In re
Marriage of Betts, 200 Ill. App. 3d at 59. Thus, our discussion will focus on the procedures
applicable to allegations of indirect criminal contempt.
¶ 46 An indirect criminal contempt proceeding is a separate and distinct proceeding from that
which underlies the contempt charge. Levaccare v. Levaccare, 376 Ill. App. 3d 503, 509
(2007). Although an indirect criminal contempt charge is “prosecuted,” the charge may be
brought by a litigant’s attorney or a court-appointed amicus curiae in addition to the State.
Marcisz v. Marcisz, 65 Ill. 2d 206, 210 (1976). When someone is charged with indirect
criminal contempt, the alleged contemnor is entitled to constitutional protections and
procedural rights similar to that of a criminal defendant. In re Marriage of O’Malley, 2016 IL
App (1st) 151118, ¶ 31. This court has even asserted that the alleged contemnor “is entitled to
all of the constitutional protections and procedural rights afforded to other criminal
defendants.” In re Marriage of Weddigen, 2015 IL App (4th) 150044, ¶ 27. The protections
and rights include (1) being charged by a written petition, complaint, or information; (2) being
informed of the nature of the charges; (3) personal service; (4) the ability to file an answer;
(5) a public trial where he or she has the ability to present evidence, subpoena witnesses, and
confront and cross-examine witnesses; (6) the privilege against self-incrimination; (7) the
presumption of innocence; and (8) the requirement of proof beyond a reasonable doubt. Id.;
In re Marriage of Betts, 200 Ill. App. 3d at 58. Additionally, the alleged contemnor is entitled
to a jury trial if the potential penalty could exceed six months’ imprisonment or a $500 fine.
In re Marriage of Knoll, 2016 IL App (1st) 152494, ¶ 59.
¶ 47 C. Jurisdiction
¶ 48 With that overview of the law of contempt and the proper characterization of Windy City’s
petition determined, we briefly address an issue that neither party has raised, our jurisdiction in
this appeal, which we have a duty to consider regardless of whether the parties have raised it.
People v. Smith, 228 Ill. 2d 95, 106 (2008). Because criminal contempt is a criminal matter
(see Totten, 118 Ill. 2d at 130), this appeal is a criminal appeal. Thus, had Windy City’s
petition been dismissed on the merits after a trial or, in other words, the Milazzos had been
acquitted, Windy City would have no basis for an appeal. See People v. Kapande, 23 Ill. 2d
230, 236 (1961) (the prosecution cannot appeal from an acquittal). Although we know of no
Illinois decision explicitly holding as much in the context of an acquittal after a criminal
contempt trial, this is the trend in other jurisdictions. See Overnite Transportation Co. v.
Teamsters Local Union No. 480, 172 S.W.3d 507, 510 (Tenn. 2005) (“[A]n appeal from an
acquittal of criminal contempt is barred.”); Denovchek v. Board of Trumbull County
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Commissioners, 520 N.E.2d 1362, 1364 (Ohio 1988) (“Most jurisdictions hold that no right of
appeal is available following an acquittal on the merits of a criminal contempt charge.”);
Commonwealth v. Maurizio, 437 A.2d 1195, 1196 (Pa. 1981) (finding that, after a person had
been found guilty of indirect criminal contempt and acquitted of direct criminal contempt, the
latter a more serious charge in Pennsylvania, the prosecution could not appeal the acquittal).
¶ 49 But obviously Windy City’s petition was not dismissed after a trial on the merits. Instead,
the circuit court dismissed the petition before a trial based on the Milazzos’ motion to dismiss
for failing to state an offense brought pursuant to section 114-1(a)(8) of the Criminal Code
(725 ILCS 5/114-1(a)(8) (West 2014)), a procedure of which this court has tacitly approved.
See United Transfer, Inc. v. Lorence, 2011 IL App (2d) 110041, ¶¶ 12, 26. Although the
prosecution cannot appeal from an acquittal in a criminal case, it can appeal from the dismissal
of a charge based on any of the grounds enumerated in section 114-1 of the Criminal Code
(725 ILCS 5/114-1 (West 2014)). Ill. S. Ct. R. 604(a)(1) (eff. July 1, 2017). Because Windy
City was the prosecutor in this case and its criminal petition was dismissed for failing to state
an offense under section 114-1(a)(8) of the Criminal Code (725 ILCS 5/114-1(a)(8) (West
2014)), we find it may appeal the dismissal, and therefore, we have jurisdiction in this case.
See United Transfer, 2011 IL App (2d) 110041, ¶¶ 12-27 (addressing the appeal of a petition
for indirect criminal contempt that the circuit court dismissed for failing to state an offense).
¶ 50 D. Ex Post Facto Concerns
¶ 51 With the overview of the law of contempt in mind and our jurisdiction settled, we now turn
to the specific contentions raised by Windy City, beginning with its argument that the circuit
court erred in dismissing the petition based on ex post facto concerns. Windy City posits the
Milazzos falsely represented in the temporary restraining order that they had not performed
certain actions from February 14, 2014, through May 16, 2014, and asserts that a false
representation to the court constitutes contempt.
¶ 52 When the circuit court dismissed Windy City’s petition based on ex post facto concerns,
the court found that the petition failed to allege an offense because the temporary restraining
order provided prospective relief to Windy City in the form of an injunction and the Milazzos
could not have willfully violated the order based on conduct occurring prior to the order’s
entry. In essence, the court ruled as a matter of law that Windy City’s allegation about the
Milazzos’ past conduct could not support a contempt charge.
¶ 53 As mentioned, when the Milazzos moved to dismiss the petition for failing to state an
offense, they did so pursuant to section 114-1(a)(8) of the Criminal Code (725 ILCS
5/114-1(a)(8) (West 2014)). Generally, we review the circuit court’s ultimate decision to
dismiss charges under the abuse-of-discretion standard of review (see People v. Mattis, 367 Ill.
App. 3d 432, 435 (2006)), but because this is a purely legal question, i.e., whether an allegedly
false representation in a temporary restraining order can form the basis for a criminal contempt
charge, we review the dismissal de novo. See People v. Stapinski, 2015 IL 118278, ¶ 35.
¶ 54 Although the circuit court found that, regardless of the veracity of the Milazzos’
representation in the temporary restraining order, it was impossible “to enjoin a party
retroactively,” the court misunderstood the true nature of Windy City’s allegation. Windy City
was not concerned that the Milazzos’ past conduct would have violated what the temporary
restraining order barred prospectively but rather that the Milazzos’ representation about their
past conduct was untruthful. It is axiomatic that a temporary restraining order acts to bar future
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conduct and maintain the status quo (see Delgado v. Board of Election Commissioners, 224 Ill.
2d 481, 483 (2007)), and to that end, the temporary restraining order entered in this case
prohibited the Milazzos from certain actions with regard to Windy City’s confidential
information. However, merely because the intent of the temporary restraining order was to bar
future conduct by the Milazzos does not mean that a constructive direct criminal contempt
charge cannot be based on an allegedly false representation about their past conduct also
contained in the order.
¶ 55 Indeed, the filing of documents in court containing known falsities has supported contempt
findings. In In re Estate of Melody, 42 Ill. 2d 451, 453 (1969), our supreme court held a person
was properly found to have committed criminal contempt where she concocted a plan to have
an attorney file a spurious will in court, as such conduct was “clearly designed to obstruct the
administration of justice and law.” In People v. Kaeding, 239 Ill. App. 3d 851, 856 (1993), this
court held a person was properly found to have committed criminal contempt where he filed a
document in court, asserting that the trial judge was “engaged in an ‘evil and wicked’ pattern of
incarcerating individuals,” an “ ‘axeman’ ” and was “skimming fines for the court system,” as
such conduct “was obviously calculated to derogate from the dignity of the court.” In People v.
Brown, 30 Ill. App. 3d 828, 830 (1975), this court held a person was properly found to have
committed criminal contempt where he filed a document in court, specifically a postconviction
petition, containing false statements. What these cases illustrate is that “[t]he mere filing” in
court of “any document containing contemptuous matter is sufficient to constitute” contempt.
People v. Jashunsky, 51 Ill. 2d 220, 224 (1972).
¶ 56 Suffice it to say that making a knowingly false representation in a temporary restraining
order similarly could constitute contempt under the right circumstances. And this is exactly
what Windy City alleged the Milazzos had done. Generally, the ex post facto doctrine
concerns the enactment of laws that retroactively punish conduct and thereby punish conduct
that was legal when originally performed. People v. Cornelius, 213 Ill. 2d 178, 207 (2004).
Obviously, this case does not involve any legislation with a retroactive effect, so the doctrine in
its core principle does not apply. What the circuit court was partially concerned about was
punishing the Milazzos based on their past conduct without fair notice, which the ex post facto
doctrine in part exists to protect. See id. But Windy City did not seek to punish the Milazzos’
conduct without fair warning, but rather sought to punish them for lying in the temporary
restraining order. Because of this critical distinction, there were no ex post facto concerns in
Windy City’s allegation, and the allegation could constitute contempt under the appropriate
circumstances.
¶ 57 This conclusion has nothing to do with what the evidence at a trial would show concerning
the Milazzos’ alleged false representation. Although the mere filing of court documents
containing known falsities may be calculated to impede or obstruct the court in its
administration of justice (People ex rel. Kunce v. Hogan, 67 Ill. 2d 55, 60 (1977)), the evidence
still must show that the party charged with contempt willfully made the false representation.
See Simac, 161 Ill. 2d at 307 (before the circuit court can hold a person in criminal court, it
“must find that the alleged contemnor’s conduct was willful”). And it is quite possible that the
Milazzos did not willfully make a false representation. After all, as exhibited during various
discussions in the circuit court regarding the operative date of the Milazzos’ representation in
the temporary restraining order, there was some indication that they believed the operative date
of the representation was April 14, 2014, not February 14, 2014. For one, there were the
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proposed temporary restraining orders and e-mails between the parties’ attorneys,
demonstrating that, at least at some point before the entry of the actual temporary restraining
order, April 14, 2014, was the operative date. The Milazzos’ belief is also corroborated in part
by the fact that, in their answers to Windy City’s complaint and amended complaint, they
admitted that Janet copied data in her Outlook file at Windy City during the morning of
February 15, 2014, the day after the operative date of the representation in the actual temporary
restraining order. This admission supports the notion that they might have truly believed April
14, 2014, was the operative date of their representation, otherwise, their admission might
directly contradict their representation.
¶ 58 Furthermore, in Sal’s brief, he states that he and Janet had been charged with felony theft
for allegedly stealing property of Windy City, which, according to him, required Janet to
review Windy City’s QuickBooks accounting software with her attorney after February 14,
2014, to defend against the theft charges. Although Sal did not say when after February 14,
2014, this occurred, it is possible it was before May 16, 2014. If so, the Milazzos could have
believed that accessing this information had a legitimate purpose and would not have been
covered by their representation in the temporary restraining order. However, whether or not
these examples demonstrate that the Milazzos did not willfully misrepresent their actions in the
temporary restraining order is reserved for a trial on the merits of the evidence, not a dismissal
based on the law. Consequently, the circuit court erred in dismissing Windy City’s petition as a
matter of law based on the temporary restraining order providing only prospective relief.
¶ 59 E. The Sufficiency of the Petition
¶ 60 Windy City next contends that, to the extent the circuit court dismissed its petition based on
a lack of specificity, such a ruling was improper, as the petition and bills of particulars gave
sufficient notice to the Milazzos of how they allegedly violated the temporary restraining
order.
¶ 61 During the first hearing on Windy City’s motion to reconsider, the circuit court intimated
that it had dismissed the petition based on a lack of “specificity,” though it did not explain why
the petition lacked the required specificity. While the Milazzos did argue in support of
dismissal that the petition and bills of particulars in conjunction were insufficient to inform
them of the nature of the charges, the court did not initially dismiss the petition based on a lack
of specificity, but rather determined that it did not need to address the issue because of the
ex post facto concerns.
¶ 62 Although the circuit court did not address this issue when it initially dismissed the petition,
we must, as the prosecutor’s failure to sufficiently inform the alleged contemnor of the nature
of the charges against him renders him unable to properly exercise his due process rights. See
In re Marriage of Knoll, 2016 IL App (1st) 152494, ¶ 59. Because the circuit court did not
address the sufficiency of the allegations in the petition, there is no ruling from the court on this
issue, meaning our review “is made on a blank slate or de novo.” People v. Kirklin, 2015 IL
App (1st) 131420, ¶ 104. But regardless, we would review this issue de novo because the
Milazzos challenged the sufficiency of the allegations in their charging document through a
motion to dismiss. People v. McClenton, 2017 IL App (3d) 160387, ¶ 34.
¶ 63 In purely criminal proceedings, all defendants have the right to be informed about the
nature of the criminal allegations against them. People v. Meyers, 158 Ill. 2d 46, 51 (1994).
Section 111-3(a) of the Criminal Code (725 ILCS 5/111-3(a) (West 2014)), which mandates
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what must be included in a charging document, gives substance to this right. Meyers, 158 Ill.
2d at 51. Section 111-3(a) provides that the charge must be in writing and allege the
commission of an offense by
“(1) Stating the name of the offense;
(2) Citing the statutory provision alleged to have been violated;
(3) Setting forth the nature and elements of the offense charged;
(4) Stating the date and county of the offense as definitely as can be done; and
(5) Stating the name of the accused, if known, and if not known, designate the
accused by any name or description by which he can be identified with reasonable
certainty.” 725 ILCS 5/111-3(a) (West 2014).
¶ 64 Because a charging instrument is a preliminary pleading, it only must contain a “cursory
statement of the facts.” People v. Swartwout, 311 Ill. App. 3d 250, 256 (2000). But when a
criminal “statute encompasses a wide variety of conduct,” the charging instrument “must
define the nature and elements of the offense in terms that are more specific than the broad and
general language of the statute.” People v. Fields, 339 Ill. App. 3d 689, 696-97 (2003). When
reviewing the sufficiency of a charging instrument, the proper inquiry is whether there was
“sufficient particularity to enable the accused to prepare a proper defense,” not whether the
prosecution could have described the alleged offense with more specificity. Meyers, 158 Ill. 2d
at 54. The focus of this inquiry is the charging instrument itself, regardless of whether the
defendant is provided additional information about the allegations through a bill of particulars.
Id. at 53. The purpose of a bill of particulars is merely to “supplement a sufficient indictment
with more specificity of detail to enable a defendant to better understand the nature of the
charges against him, or to better prepare a defense to the charges.” (Emphasis in original.) Id.
A bill of particulars cannot cure an insufficient charging document. Id. Thus, when analyzing a
motion to dismiss based on the alleged insufficiency of a charging instrument, we look only at
the charging instrument “without regard to the additional specificity supplied by the bill of
particulars.” Id.
¶ 65 The preceding law concerned purely criminal proceedings. Contempt proceedings, as
previously discussed, are sui generis (Milton, 2018 IL App (1st) 171392, ¶ 33), meaning the
Criminal Code (725 ILCS 5/100-1 et seq. (West 2014)) does not fully apply. In re Marriage of
Betts, 200 Ill. App. 3d at 48-49. However, also as previously discussed, when a person is
charged with indirect criminal contempt, the alleged contemnor must be afforded similar, if not
all, constitutional protections and procedural rights afforded to a traditional criminal
defendant. See In re Marriage of O’Malley, 2016 IL App (1st) 151118, ¶ 31; In re Marriage of
Weddigen, 2015 IL App (4th) 150044, ¶ 27. Two such protections are being charged by a
written document and being informed about the nature of the charges. In re Marriage of
O’Malley, 2016 IL App (1st) 151118, ¶ 31. To accomplish the latter, the alleged contemnor
must be informed of the sanctions being sought and have the allegations set forth specifically
and definitely. People v. Waldron, 114 Ill. 2d 295, 303 (1986); People v. Covington, 395 Ill.
App. 3d 996, 1007 (2009).
¶ 66 Although no decision from Illinois has expressly adopted the requirements enumerated in
section 111-3(a) of the Criminal Code (725 ILCS 5/111-3(a) (West 2014)) as ones needed to be
included in petitions for indirect criminal contempt and our supreme court long ago stated that
petitions for indirect criminal contempt do not need to have all the formalities of criminal
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complaints to be sufficient (see People v. Harrison, 403 Ill. 320, 328 (1949)), we cannot help
but note the similarities between section 111-3(a) and what has been required to be included in
petitions for indirect criminal contempt. Compare 725 ILCS 5/111-3(a) (West 2014) (stating a
charging document must be in writing and allege the nature and elements of the offense
charged) with In re Marriage of O’Malley, 2016 IL App (1st) 151118, ¶ 31 (stating that the
alleged contemnor must be charged by a written petition and informed of the nature of the
charges). Given these similarities, Fields, 339 Ill. App. 3d 689, a case analyzing section
111-3(a) and the sufficiency of a charging instrument, is instructive in determining whether
Windy City’s petition was sufficient.
¶ 67 In Fields, the defendant was charged with two counts of money laundering. Id. at 696. The
first count alleged that, on or about April 16, 1999, in Du Page County, he “ ‘committed the
offense of Money Laundering in that said defendant knowingly engaged in a financial
transaction in criminally derived property with a value exceeding $10,000.00 and knew that
the financial transaction was designed in whole or in part to conceal the source of the
criminally derived property in violation’ ” of section 29B-1 of the Criminal Code of 1961 (720
ILCS 5/29B-1 (West 2000)). Fields, 339 Ill. App. 3d at 696. The second count alleged that, on
or about August 16, 1999, in Du Page County, he “ ‘committed the offense of Money
Laundering in that said defendant knowingly engaged in a financial transaction in criminally
derived property with a value exceeding $10,000.00 and knew that the financial transaction
was designed in whole or in part to conceal the source of the criminally derived property in
violation’ ” of section 29B-1 of the Criminal Code of 1961. Id. The defendant filed two
motions to dismiss the indictment against him, both of which the circuit court denied. Id.
¶ 68 The defendant appealed, arguing that the indictment lacked the necessary details to
sufficiently inform him of the nature of the offenses. Id. at 695. Initially, the appellate court
observed that the indictment named the defendant; listed the offense, the statutory section
allegedly violated, the dates of the occurrences, and the county of the occurrences; and recited
the elements of the offense by mirroring the statutory language. Id. at 696. But the court
observed that the money laundering statute prohibited conduct in the “most general terms,”
noting the statutorily defined words “ ‘criminally derived property’ ” and “ ‘financial
transaction’ ” encompassed a wide array of assets and conduct. Id. at 697-98. The statute
defined “criminally derived property” as essentially any property or proceeds, directly or
indirectly, derived from a violation of the Criminal Code of 1961 (720 ILCS 5/1-1 et seq.
(West 2000)), the Illinois Controlled Substances Act (720 ILCS 570/100 (West 2000)), or the
Cannabis Control Act (720 ILCS 550/1 et seq. (West 2000)), meaning the State’s broad
reference in the indictment to criminally derived property “left [the] defendant guessing as to
whether he allegedly obtained the ‘criminally derived property’ in violation of the drug
statutes, a theft, or some other action that violated the criminal statutes.” Fields, 339 Ill. App.
3d at 697-98.
¶ 69 Similarly, the money laundering statute defined “financial transaction” as any purchase,
loan, sale, gift, pledge, transfer, delivery, or other disposition of property. Id. at 698. Because
the defendant’s indictment “did not indicate whether [his] ‘financial transaction’ was the
securing of a loan to pay for the cars, the payment of the down payment, the payment of the
monthly installments, or a combination of any or all of those activities,” he could only “guess
at which action was serving as the basis for money laundering charges against him.” Id. As a
result, “the two key elements of the offense, the ‘criminally derived property’ and the
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‘financial transaction,’ were defined in broad and conclusory language and did not apprise
defendant of the prohibited conduct at issue.” Id. The court therefore concluded that the
indictment was insufficient. Id. After making this conclusion, the court rejected the State’s
argument that, because it had furnished the defendant with a bill of particulars, it had cured any
insufficiency in the indictment. Id. at 698-99. The court remarked that an insufficient charging
instrument cannot be cured by a bill of particulars and accordingly reversed the circuit court’s
judgment. Id. at 699.
¶ 70 As in Fields, we find that Windy City’s petition failed to set forth the allegations against
the Milazzos specifically and definitely and thus, as a whole, failed to sufficiently inform them
of the nature of the charges against them. In reviewing the petition, the majority of its
allegations of fact are a recitation of the facts leading up to the circuit court’s grant of the
temporary restraining order. In that history, there are brief allegations that two laptops of
Windy City that the Milazzos retained “revealed use after February 14, 2014” and that Janet
e-mailed herself with confidential information on the morning of February 15, 2014.
Following that history, Windy City raised the two overarching allegations. First, it highlighted
the Milazzos’ representation in the temporary restraining and asserted it was false because they
“transferred Confidential Information” from Windy City’s computers “in violation of” the
temporary restraining order and used that information to operate its competing transportation
business. Second, Windy City asserted that the Milazzos’ actions “continued to be
contemptuous” up to and including the date Windy City brought its petition, in that they
“continue[d] to use” the confidential information in violation of the temporary restraining
order.
¶ 71 Though the petition asserted that Janet e-mailed herself confidential information on the
morning of February 15, 2014, that assertion was contained in the part of the petition reciting
the facts leading up to the entry of the temporary restraining order. Moreover, when making
this assertion, Windy City did not state that she did this using one of the two Windy City
computers, on which the overarching allegation of improperly transferring confidential
information was based. As such, it was unclear if that assertion was the basis, or part of the
bases, for Windy City’s allegation that the Milazzos had lied in the temporary restraining
order. Additionally, the Milazzos admitted in both answers that Janet copied the data in her
Outlook file at Windy City the morning of February 15, 2014. The Milazzos could not expect
that an action they admitted to would later form the basis of a contempt charge. Simply, it is
unclear how Windy City’s assertion about Janet e-mailing herself confidential information on
the morning of February 15, 2014, relates to the contempt charge, if at all.
¶ 72 Given that it was unclear how, or if, Janet’s actions on the morning of February 15, 2014,
related to the contempt charges, the remaining allegations are nothing more than broad,
conclusory accusations that the Milazzos lied in, and violated, the temporary restraining order.
Notably, and just like in Fields, Windy City’s allegation that the Milazzos “transferred
Confidential Information” is completely vague. “Confidential information” has a defined
meaning according to the temporary restraining order and the word “transfer” when used with
information can mean several actions, such as printing and keeping the information in hard
copy form, e-mailing the information to another e-mail account, uploading the information to a
cloud storage service, saving the information on an external storage device, or using a local
data transfer to transfer the information from one computer to another. Windy City’s petition
did not attempt to indicate how the transfer or transfers occurred, and the petition did not allege
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when the transfer or transfers occurred nor provide any type of description of the confidential
information that was transferred. Similarly, Windy City did not explain at all how the Milazzos
“made use” of the confidential information in operating Signature. The petition further lacked
any indication about how or when the Milazzos “continue[d] to use” Windy City’s confidential
information after the temporary restraining order had been entered.
¶ 73 Given this lack of detail, the Milazzos were left to guess as to what conduct by them served
as the basis for Windy City’s charges that they made a false representation in the temporary
restraining order and violated the order itself. Comparable to Fields, 339 Ill. App. 3d at 697-99,
where the terms “criminally derived property” and “financial transaction” were too vague in an
indictment to sufficiently apprise the defendant of the nature of his money laundering charges,
Windy City’s references to generic words such as “transfer[ ]” and “use” and the term
“confidential information,” which had been defined by the parties in the temporary restraining
order, were too vague to sufficiently apprise the Milazzos of the nature of their indirect
criminal contempt charges. In sum, while the allegations in the petition might have alleged the
basic elements of indirect criminal contempt, Windy City did not set forth the allegations
specifically and definitely. See Waldron, 114 Ill. 2d at 303; Covington, 395 Ill. App. 3d at
1007.
¶ 74 Nevertheless, Windy City posits that, in conjunction, its petition and bill of particulars
sufficiently apprised the Milazzos of the nature of the charges against them. However, our
review is limited only to the charging instrument itself (see Meyers, 158 Ill. 2d at 54), and
while Windy City provided the Milazzos each with a bill of particulars that set forth in great
detail the actions they allegedly performed to violate the temporary restraining order, a
comprehensive bill of particulars cannot cure an insufficient charging document. See id. In
fact, most of the statements in the bills of particulars were based on affidavits from Fazio, the
forensic examiner who investigated what confidential information of Windy City’s allegedly
had been used, disclosed, or accessed by the Milazzos. All of the affidavits were dated in 2014,
before Windy City filed its petition against the Milazzos. Windy City’s detailed bills of
particular were not a substitute for their incomplete petition.
¶ 75 Windy City additionally claims in its reply brief that its petition against the Milazzos
alleged that they failed to return Windy City’s property and information, which it argues also
violated the temporary restraining order. For support, Windy City cites to paragraph 13 of its
petition, which states that “[t]he actions of [the Milazzos] have continued to be contemptuous
until this date, in that [they] continue to use the Confidential Information of Windy City in
violation of the [temporary restraining order].” But nowhere in this paragraph did Windy City
specifically and definitely allege that the Milazzos failed to return its property and information.
Before paragraph 13, Windy City did state that the Milazzos “retained possession of two laptop
computers, one iPad, and two ‘smart’ phones which held Confidential Information,” but
Windy City did not allege that their retention of property violated the temporary restraining
order.
¶ 76 It is undeniable that, as part of the temporary restraining order, the Milazzos were required
to return to Windy City within three days “all information, documents and property” that
contained confidential information and “all other property belonging to Windy City, regardless
of whether or not such information is Windy City’s Confidential Information.” But to charge
someone with criminal contempt based on retention of property and information in violation of
this clause of the temporary restraining order, there needed to be a specific and definite
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allegation, which Windy City failed to do. See Waldron, 114 Ill. 2d at 303; Covington, 395 Ill.
App. 3d at 1007. We therefore reject Windy City’s argument that its petition sufficiently
alleged that the Milazzos failed to return Windy City property and information.
¶ 77 We reiterate that, when the circuit court dismissed the petition initially, it did not address
the sufficiency of the petition despite that argument being made by the Milazzos in support of
their request to have the petition dismissed. However, we may affirm the circuit court’s
judgment on any basis supported by the record, regardless of whether the court based its
judgment on those grounds. See Pekin Insurance Co. v. Lexington Station, LLC, 2017 IL App
(1st) 163284, ¶ 40; People v. Brown, 2015 IL App (1st) 122940, ¶ 45. Accordingly, because
we find Windy City’s petition lacking in the required specificity to sufficiently inform the
Milazzos of the nature of the charges against them, the circuit court properly dismissed the
petition for indirect criminal contempt against the Milazzos.
¶ 78 F. Motion to Reconsider
¶ 79 Windy City also contends that the circuit court erred in denying its motion to reconsider,
arguing that the court’s two-part justification—initially based on concerns about the issue of
entrapment and later on grounds of wanting the parties to focus their attention on the civil
litigation—was erroneous.
¶ 80 Motions to reconsider generally do one of three things: (1) bring to the court’s attention
changes in the law, (2) bring to the court’s attention new evidence, or (3) assert the court erred
in its application of the existing law. Papadakis v. Fitness 19 IL 116, LLC, 2018 IL App (1st)
170388, ¶ 13. In moving the circuit court to reconsider its initial ruling, Windy City argued that
the court had erred in its application of the existing law. When a party makes a motion to
reconsider based upon alleged errors in the circuit court’s application of existing law, that
party, in essence, “ask[s] the court to rethink what it already thought.” O’Shield v. Lakeside
Bank, 335 Ill. App. 3d 834, 838 (2002). As such, our review is of the court’s original ruling.
Papadakis, 2018 IL App (1st) 170388, ¶ 13. As we have already determined that the court
properly dismissed Windy City’s petition, albeit for different reasons, we therefore need not
address the court’s rulings on the issue of entrapment or wanting the parties to focus their
attention on the civil litigation because its ultimate decision to dismiss the petition was proper.
Accordingly, because the court’s ultimate decision to dismiss Windy City’s petition was
correct, its ultimate decision to deny Windy City’s motion to reconsider was also correct.
¶ 81 III. CONCLUSION
¶ 82 For the foregoing reasons, we affirm the judgments of the circuit court of Cook County.
¶ 83 Affirmed.
¶ 84 JUSTICE GORDON, specially concurring:
¶ 85 I agree that the decision of the trial court should be affirmed but I must write separately. I
know of no Illinois Supreme Court case that finds that a prosecutor has the standing or the right
to appeal a lower court finding dismissing a petition to hold an alleged contemnor in indirect
criminal contempt. There is a Second District case that analyzes a case similar to the case at
bar, but jurisdiction and standing was not an issue and was never discussed. See United
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Transfer, Inc. v. Lorence, 2011 IL App (2d) 110041. Indirect criminal contempt is the inherent
ability of the court to hold a person or legal entity in contempt. I believe that contempt should
only be used by the trial court as a last resort when there is no other remedy available. It is
within the court’s discretion to exercise this inherent right. When the court dismisses a petition
and does not want to use that ultimate sanction, I believe there is no right to appeal. Many
jurisdictions hold that, if the contemnor is found not guilty of criminal contempt, there is no
right to appeal. It would appear that the same rule should apply when the charging document is
dismissed.
¶ 86 In the case at bar, I do not believe that the trial court misunderstood the true nature of
Windy City’s allegation. The trial court may have dismissed the petition initially based on the
retroactivity issue, but as the majority ably points out, the prosecutor failed to sufficiently
inform the alleged contemnor of the nature of the charges against him. The trial court may have
noticed that the remaining allegations of the petition did not adequately provide the alleged
contemnor with the ability to figure out the nature of the criminal allegation alleged. As a
result, the trial court dismissed the petition on the one obvious ground, the alleged
retroactivity.
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