219 F.2d 243
Everest Melvin HUPMAN, also known as Melvin E. Hupman, Appellant,v.UNITED STATES of America, Appellee.
No. 12203.
United States Court of Appeals, Sixth Circuit.
Feb. 7, 1955.

Marshall Perlin, New York City, and J. Paul Prear, Dayton, Ohio (Donner, Kinoy & Perlin, David Scribner, New York City, on the brief), for appellant.
Thomas Stueve, First Asst. U.S. Atty., Cincinnati, Ohio (Hugh K. Martin, U.S. Atty., George S. Heitzler, Asst. U.S. Atty., Cincinnati, Ohio, on the brief), for appellee.
Before SIMONS, Chief Judge, and MILLER and STEWART, Circuit Judges.
SIMONS, Chief Judge.

1
The appellant was convicted on January 15, 1954 upon an indictment filed in the United States District Court for the Southern District of Ohio, containing two counts, each charging the appellant with violating § 1001 of Title 18 U.S.C., in that he made a false, fictitious and fraudulent affidavit, as a Non-Communist Union Officer.  He was sentenced separately on each count but the prison sentences were made to run concurrently.  Upon his appeal, he presents nineteen separate specifications of error with some of them divided under multiple subheads, each claim of error being fully, and with great emphasis, argued in his brief.

2
We have given careful consideration to them all, realizing, as we said in Stumbo v. United States, 6 Cir., 90 F.2d 828, 833, that where everything is emphasized, it often results that there is no emphasis and that substantial error might be overlooked in the unnecessary massing of insubstantial complaints.  The extravagant and unnecessary multiplications of exceptions and assignments of error have often been condemned, Badders v. United States, 240 U.S. 391, 36 S.Ct. 367, 60 L.Ed. 706; Central Vermont Railway Co. v. White, 238 U.S. 507, 35 S.Ct. 865, 59 L.Ed. 1433.  In Gariepy v. United States, 6 Cir., 189 F.2d 459, 461, we noted the observation in the dissent of Mr. Justice Holmes in United States v. Behrman, 258 U.S. 280, 42 S.Ct. 303, 304, 66 L.Ed. 619, "If this case raised a question of pleading I should go far in agreeing to disregard technicalities that were deemed vital a hundred or perhaps even fifty years ago."

3
In respect to the sufficiency of an indictment, it has been repeatedly held, as in the Behrman case, supra, 'It is enough to sustain an indictment that the offense be described with sufficient clearness to show a violation of law, and to enable the accused to know the nature and cause of the accusation and to plead the judgment, if one be rendered, in bar of further prosecution for the same offense.'  The indictment, in the present case, was thoroughly considered by Judge Martin of this court when sitting, by designation, in the District Court, he denied a motion to dismiss it for failure to state an offense.  With his well considered views developed in his memorandum opinion of January 29, 1953, we are in full accord.

4
The statute under which the appellant was indicted is Title 18 U.S.C. 1001.  It is printed in the margin.1  It is incorporated         by reference in § 159(h) of the Taft-Hartley Act, Title 29 U.S.C.A., which is likewise printed in the margin.2

5
The major controversy revolves about the admission into evidence of an Affidavit of Non-Communist Union Officer, purporting to be signed and sworn to by the appellant, which was found in the files of the Labor Board at Washington.  That affidavit is printed in the margin.3 It was made upon a printed form provided by the Labor Board and appears to be regular upon its face.  The question, therefore, is not one of 'admissibility' but whether, by itself alone, without support of the notary or identification of signature, it can support a jury verdict which, necessarily, requires a finding of fact by the jury that it was signed and sworn to by the appellant and that he either filed it or caused it to be filed with the Labor Board.

6
We turn, therefore, to the record which we have taken great pains to review.  Virginia Bantel was the Legal Examiner for the Cincinnati office of the Labor Board.  Her duties included determining the sufficiency of documents filed by labor organizations which desired to comply with §§ 9(f, g, h) of the National Labor Relations Act, correspondence with those organizations and maintaining records concerning their compliance with the requirements of the Act.  She received the documents, determined their completeness and, if all the papers had not been received, she requested those that were missing.  When she determined that all of the documents received were complete, she placed the Union in compliance by letter.  She then sent the documents to the Washington office of the Board for permanent filing.  While she had no personal or independent recollection of the receipt of the affidavit here involved, and the affidavit itself contains no identifying marks as to how it got to her office, it was her office practice to maintain notes in her files and upon reference to such notes she testified that she received the affidavit on January 5, 1950, along with other documents at her Cincinnati office from Frigidaire Local 801 of the United Electrical Radio & Machine Workers of America, of Dayton, Ohio.  On the same day, she determined that the proposed filings were not complete so she requested Mr. Lem Markland, president of the Local Union, by letter, to submit additional documents.  Compliance with this request was received on January 12, 1950.  One of the requested documents was not in order, so, she again wrote to Markland and received the corrected document on January 17, 1950.  On the latter date, she notified Markland by mail that the Union was in full compliance with the requirements of the National Labor Relations Act, as amended, under §§ 9(f, g) and (h), and, on the same day, sent the documents to Washington for permanent filing.  Her notes indicated that she requested the Constitution and D.L.  (Department of Labor letter) on January 5.  She testified further that had the documents been delivered personally, she would have asked for the missing documents orally.  Her notes also indicate that the correspondence should be sent to Mr. Markland.  The Cincinnati office receipt stamp was not on the original affidavit and she had nothing to do with the date that was upon the photostatic copy thereof in evidence.

7
Had the record shown nothing more, we should be obliged to reverse.  We do not agree with the government's contention that because the affidavit appears regular upon its face and was found in the files of the Labor Board that that would sustain the jury's verdict, nor do we agree with its contention that the gist of the crime is the making of the false statement, if there is no proof that the affidavit had been delivered to the Board and placed on file.  Until it is filed, the Board is not empowered to deal with it or to act in the light of it and it is not yet a matter which comes within its jurisdiction.  United States v. Valenti, 3 Cir., 207 F.2d 242, 244; Reass v. United States, 4 Cir., 99 F.2d 752; United States v. Borow, D.C.N.J., 101 F.Supp. 211.  Moreover, in the absence of further proofs, there would have been nothing to show that the appellant signed and swore to the affidavit, filed, or caused it to be filed.  The mere fact that an affidavit is found in the files of an agency of the United States is not enough, for the government still has the burden of proving that the appellant had filed or caused it to be filed with the Board.

8
But the fact that the affidavit was found in the files of the Labor Board, without any notation thereon indicating by whom it was filed, does not stand alone in the record.  Two witnesses, Dunham and Strunk, while ostensibly members of the Communist Party, were giving information to the Federal Bureau of Investigation, with respect to Communist meetings and activities.  Dunham testified as to a meeting that took place at the appellant's home in January or February of 1950, at which the appellant and his wife, Dunham and Joe Brant were present.  Brant was the labor organizer for the Communist Party for the State of Ohio.  There, Brant said to the appellant: 'Since you signed this affidavit, the Taft-Hartley affidavit, read the Worker, the literature; don't pay any dues but contribute, support the Party and don't attend any closed meetings.'  The appellant replied, saying he would go along with that.  Dunham and the appellant were both employees at the Frigidaire plant, in Dayton.  Strunk had joined the Communist Party in 1944, became Financial Secretary of the Dayton branch, held that office from 1945 till the latter part of 1952 and attended Executive Board Meetings.  He attended a meeting at the appellant's home on December 3, 1949.  The appellant and his wife and Martin Chancy were present.  Chancy was State Chairman of the Communist Party in Ohio.  Strunk testified that Chancy said the following at that meeting: 'Five communist members would have to sign the Taft-Hartley affidavit, and the same five should not attend any meetings after he had signed it, not pay any dues; just donate every month so much money.  He should meet as an individual group which would be called the Taft-Hartley group.'  Strunk also testified that during 1950 the Taft-Hartley group was added to three other groups already in existence; that at a registration meeting at appellant's home, in 1950, the appellant was reregistered and assigned to the Taft-hartley group; that this group consisted of four other party members who had signed Taft-Hartley affidavits.  The group included Markland, the president of the Local, with whom Miss Bantel had had her correspondence.  Neither Dunham's nor Strunk's evidence was traversed nor successfully shaken by cross-examination.  Circumstantial evidence from which reasonable inferences may be drawn will sustain a verdict.  American Bureau of Shipping v. Allied Oil Co., 6 Cir.,64 F.2d 509; Stumbo v. United States, supra.  We think the record presents circumstances which warrant a reasonable inference that the appellant signed and either filed, or caused to be filed, the affidavit here involved.  His reply to Brant, his instructions from Brant and Chancy, his membership in the Taft-Hartley group permit no other inference.  The contention that appellant's reply to Brant at the 1950 meeting, if construed as an admission, was not sufficiently corroborated to establish the corpus delicti but was merely an uncorroborated extra-judicial statement, must be rejected.  In the recent case of Opper v. United States, 348 U.S. 84, at page 93, 75 S.Ct. 158, 164, the Supreme Court, after discussing two views of the necessary quantum of corroborative evidence, came to this conclusion: 'However, we think the better rule to be that the corroborative evidence need not be sufficient, independent of the statements, to establish the corpus delicti.'  So viewed, the presence of the affidavit in the files of the Labor Board is fully explained.4

9
Equally without merit, is the appellant's complaint that the government did not prove that the appellant was a Communist on the date the affidavit was signed, or when it was filed.  His argument is that even though he had been a Communist, there is no presumption that such status continued to the critical date and, even if so, the presumption must yield to the more fundamental presumption of 'innocence.'  That may well be the rule, for the law takes cognizance of the probability, and even the possibility, of a change of allegiance or affiliation, especially if the proof of status is confined to a time remote from the date of the offense charged.  Here, the evidence contains cumulative proof of membership in the Communist Party, not only up to the critical date but thereafter.  The appellant's argument seems to be that unless there is direct proof that appellant was a Communist on the very day the affidavit was signed or filed, the proof of violation fails.  This impresses us as an absurdity, especially when the evidence shows that the appellant's instructions were to avoid external indications of Communist membership while still maintaining connection with and giving support to the Party.

10
Equally lacking in persuasion is the complaint that the indictment was insufficient because of its failure to charge that the false statement was material or that the statement was made in a matter within the jurisdiction of a department of the United States.  Both affidavit and indictment, in effect, proclaim materiality and jurisdiction.  The appellant clearly was advised of the charge he had to meet and with specific identity to preclude the danger of double jeopardy.  The special attack upon the second count of the indictment, because of the failure of the Court correctly to instruct the jury as to what is meant by 'affiliation,' is equally without merit.  Even if erroneous, it was not prejudicial because of the rule that a sentence will be sustained if it can be supported on one count of a multi-count indictment.5

11
nor is there any virtue in the grievance that the appellant was not shown to have been an officer of the Union.  The evidence shows that he was, at various times, an officer.  His membership in the Taft-Hartley group indicates it and the affidavit states it.  There being sufficient proof warranting the jury in finding that he signed the affidavit and caused it to be filed, he can not now complain, if the jury took him at his word.

12
A substantial part of the appellant's brief is devoted to an attack upon the Court's instructions to the jury and the denial of many of his requests to charge.  The seventy-nine special requests submitted by the appellant, many of them submitted by the appellant, many of them repetitious and nearly nature, would seem to suggest a technique, not without precedent, of confusing the jury and leading the Court into error in an explosive criminal trial.  We have given careful consideration to the instructions of the Court to the jury.  They were fair, substantially covered the crucial questions of law, with a careful analysis of the elements of the offense charged.  The patience of the District Judge was severely tried by the continual interruptions, exceptions, and complaints of appellant's counsel.  He remained commendably calm and impartial.  The appellant was given a fair trial.  We find no prejudicial error in his charge and no merit in the claims of error not herein specifically discussed.

13
The judgment is affirmed.

1
 'Statements or entries generally
'Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully falsifies, conceals or covers up by any trick, scheme, or device a material fact, or makes any false, fictitious or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry, shall be fined not more than $10,000 or imprisoned not more than five years, or both.'

2
 '(h) No investigation shall be made by the Board of any question affecting commerce concerning the representation of employees, raised by a labor organization under subsection (c) of this section, and no complaint shall be issued pursuant to a charge made by a labor organization under subsection (b) of section 160 of this title, unless there is on file with the Board an affidavit executed contemporaneously or within the preceding twelve-month period by each officer of such labor organization and the officers of any national or international labor organization of which it is an affiliate or constituent unit that he is not a member of the Communist Party or affiliated with such party, and that he does not believe in, and is not a member of or supports any organization that believes in or teaches, the overthrow of the United States Government by force or by any illegal or unconstitutional methods.  The provisions of sections 286, 287, 1001, 1022, and 1023 of Title 18 shall be applicable in respect to such affidavits.  As amended June 23, 1947, 3:17 p.m.  E.D.T., c. 120, Title 1, § 101, 61 Stat. 143; Oct. 22, 1951, c. 534, § 1(c, d), 65 Stat. 601.'

3
 'Government's Exhibit 1
'United States of America
'National Labor Relations Board
'Affidavit of Noncommunist Union Officer
'(See instructions on reverse)
'The undersigned, being duly sworn, deposes and says:
'1. I am a responsible officer of the union named below.
'2. I am not a member of the Communist Party or affiliated with such party.
'3. I do not believe in, and I am not a member of nor do I support any organization that believes in or teaches the overthrow of the United States Government by force or by any illegal or unconstitutional methods.
'Frigidaire Local 801 'United Electrical, Radio & Machine
Workers of America (UE)
'Signature: Melvin E. Hupman 'Address: R #6 Box 370 'Dayton, Ohio
'(Perforated)
'REC'D
'1/18/50
'NLRB
'Subscribed and sworn to before me this 15 day of December, 1949.
'A notary public or other person authorized by law to administer oaths and take acknowledgments in and for the county of Montgomery, State of Ohio.
'My commission expires Jan. 31, 1952.
'George W. White
'George W. White, Notary Public
In and For Montgomery County, Ohio 'My Commission Expires Jan. 31, 1952
'(Seal)'

4
 The mere fact that the affidavit was in the custody of the Board on January 5th unaccompanied by the necessary additional documents does not mean that it was filed on that date

5
 'Count One
'That on or about December 15, 1949, in the Southern District of Ohio, Western Division, Everest Melvin Hupman, aka Melvin E. Hupman, the defendant herein, in a matter within the jurisdiction of the National Labor Relations Board, an agency of the United States, did unlawfully, willfully, and knowingly in an 'Affidavit of Non-Communist Union Officer' (Form NLRB-1081) make a false, fictitious and fraudulent statement and representation, to-wit, that he was not a member of the Communist Party when in truth and fact the said Everest Melvin Hupman, aka Melvin E. Hupman, then and there well knew such statement to be false. fictitious and fraudulent as he then there well knew he was a member of the Communist Party.
'Count Two
'That on or about December 15, 1949, in the Southern District of Ohio, Western Division, Everest Melvin Hupman, aka Melvin E. Hupman, the defendant herein, in a matter within the jurisdiction of the National Labor Relations Board, an agency of the United States, did unlawfully, willfully, and knowingly in an 'Affidavit of Non-Communist Union Officer' (Form NLRB-1081) make a false, fictitious and fraudulent statement and representation, to-wit, that he was not affiliated with the Communist Party when in truth and fact the said Everest Melvin Hupman, aka Melvin E. Hupman, then and there well knew such statement to be false, fictitious and fraudulent as he then and there well knew he was affiliated with the Communist Party.
'A True Bill.
'Ray J. O'Donnell
'United States Attorney
'Wm. R. Wilson 'Foreman'


925 F.2d 1468
Unpublished DispositionNOTICE: Seventh Circuit Rule 53(b)(2) states unpublished orders shall not be cited or used as precedent except to support a claim of res judicata, collateral estoppel or law of the case in any federal court within the circuit.Roger CLINE and Stanley Wells, Plaintiffs/Appellants,v.AMERICAN AIRLINES, INCORPORATED, a foreign corporation,Defendant/Appellee.
No. 90-1096.
United States Court of Appeals, Seventh Circuit.
Argued Nov. 14, 1990.Decided Feb. 20, 1991.

ORDER
Before CUDAHY, RIPPLE, and KANNE, Circuit Judges.

1
Plaintiffs appeal the district court's denial of their motions for relief brought under Federal Rule of Civil Procedure 60(b).  Plaintiffs' case against the defendant was dismissed on August 25, 1989, after the plaintiffs failed to respond to the defendant's motion to dismiss the second amended complaint.  On November 1, 1989, plaintiffs filed a Rule 60(b) motion for relief from the court's order granting the defendant's motion to dismiss.  The district court denied this motion in a memorandum opinion entered December 15, 1989.  On January 3, 1990, the plaintiffs filed a motion to reconsider the December 15, 1989, order denying plaintiffs relief under Rule 60(b).  Again the court denied relief.  Plaintiffs now appeal from both denials.

I. FACTS

2
This litigation arises out of an incident on an overseas American Airlines flight which eventually led to the arrest of the plaintiffs at O'Hare International Airport in Chicago, Illinois.  This case involves the plaintiffs' second amended complaint filed on June 16, 1989, naming only American Airlines as defendant.  The defendant filed a motion to dismiss the second amended complaint on July 14, 1989.

3
On July 14, 1989, the district court held a status hearing.  The plaintiffs were represented by Mary C. Sweeney ("Sweeney"), an attorney with the law firm of Susan E. Loggans and Associates ("Loggans").  The Loggans firm has represented the plaintiffs throughout this litigation.  The transcript of the status hearing indicates that counsel for the defendant and the plaintiffs were present.  At the hearing, the court set a briefing schedule, the plaintiffs' response was due on July 28, 1989.  The court set September 15, 1989, as the next court date for the ruling on defendant's motion.  Sweeney left the Loggans firm prior to July 28, 1989.

4
Plaintiffs' case was then turned over to Joseph McGuire, who joined the Loggans firm on July 24, 1989, four days before the due date.  According to the plaintiffs, when McGuire inquired about the plaintiffs' case some of the members of Loggans' staff mistakenly informed him that the response brief had already been prepared and filed by Sweeney.  However, Sweeney never filed a response to defendant's motion to dismiss before her departure from the firm.1   The July 28, due date came and went and no response was filed.  On August 25, 1989, the court granted defendant's motion and dismissed the case.  The court did not rule on the merits of the dismissal.  In its minute order the court stated "Plaintiff having failed to file a response to defendant's motion to dismiss as ordered by the court on July 14, 1989, defendant's motion to dismiss is granted."    Cline v. American Airlines, No. 89 C 1984 (N.D.Ill. Aug. 25, 1989).

5
The court sent out copies of the dismissal order to counsel of record on August 25, 1989.  The Loggans firm received a copy of the dismissal order on August 29.  However, McGuire only became aware of the dismissal order around September 13 as he was preparing for the September 15 ruling date.  According to the plaintiffs, McGuire did not initially realize that the dismissal was a final judgment on the merits of the case and no appeal was taken from the order.  Instead, he prepared a third amended complaint in an attempt to rectify the situation.  The district court denied plaintiffs' motion for leave to file a third amended complaint.  The court explained that the August 25 dismissal order disposed of the case entirely in favor of the defendant.

6
Plaintiffs filed a motion for relief pursuant to Rule 60(b) on November 1, 1989.  The district court denied plaintiffs' Rule 60(b) motion on December 18 for failure to show cause for the error.  On January 8, 1990, plaintiffs filed another 60(b) motion asking the court to reconsider its denial of plaintiffs' first 60(b) motion.  The court denied plaintiffs' second motion on January 12.  The plaintiffs timely appealed requesting that this court reverse the district court's orders denying relief pursuant to Rule 60(b).  We affirm.

II. Analysis

7
The question before us on appeal is whether the district court abused its discretion in denying plaintiffs' Rule 60(b) motions.  At the outset it must be emphasized that we review only the denial of plaintiffs' Rule 60(b) motions.  This court is without jurisdiction to review the underlying dismissal of this case as the plaintiffs filed no timely appeal from that dismissal.    Del Carmen v. Emerson Electric Company, 908 F.2d 158, 161 (7th Cir.1990).  Additionally, we note that the defendant's waiver argument regarding the issues raised in the plaintiffs' second 60(b) motion is misplaced.  The waiver doctrine is inapplicable to the facts of this case.  Defendant cites to cases involving situations in which a party failed to bring an issue to the district court's attention before raising it on appeal.  This case involves two Rule 60(b) motions which the district court reviewed and denied.

A. General Application of Rule 60(b)

8
Relief from judgment under Rule 60(b) is an extraordinary remedy and is granted only in exceptional circumstances.    Del Carmen, 908 F.2d at 161.  It is well settled in this circuit that our review of the district court's denial of a Rule 60(b) motion for relief from a judgment is a limited one.  Id.  The determination of whether Rule 60(b) relief should be granted is left to the sound discretion of the trial court.    Reinsurance Co. of America, Inc. v. Adminstratia Asigurarilor de Stat, 902 F.2d 1275, 1277 (7th Cir.1990).  As such, the district court's decision may only be reversed for an abuse of discretion.  Id.  " '[A]buse of discretion in denying a 60(b) motion is established only when no reasonable person could agree with the district court;  there is no abuse of discretion if a reasonable person could disagree as to the propriety of the court's action.' "    Id. (quoting McKnight v. United States, 726 F.2d 333, 335 (7th Cir.1984)).  In short, the Rule 60(b) determination is characterized in this circuit as " 'discretion piled on discretion.' "    Daniels v. Brennan, 887 F.2d 783, 790 (7th Cir.1989) (quoting Tolliver v. Northrop Corp., 787 F.2d 316, 318-19 (7th Cir.1986)).

B. Plaintiffs' First Rule 60(b) motion

9
Federal Rule of Civil Procedure 60(b)(1) provides that the "court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for ... mistake, inadvertence, surprise, or excusable neglect...."  We have frequently held that "inadvertence or excusable neglect" under Rule 60(b)(1) does not mean a party is entitled to relief from the results of negligence or carelessness.    Lomas and Nettleton Co. v. Wiseley, 884 F.2d 965, 967 (7th Cir.1989).  "Neither ignorance nor carelessness on the part of the litigant or his attorney provide grounds for relief under Rule 60(b)(1)."    Id. (quoting Kagan v. Caterpillar Tractor Co., 795 F.2d 601, 607 (7th Cir.1986)).  In order to obtain relief under 60(b)(1) some justification for the error beyond failure to exercise due care must be shown.    Lomas, 884 F.2d at 967.  In this case plaintiffs must prove that the failure to file a response to defendant's motion to dismiss was excusable neglect and not the result of mere negligence or carelessness.2

10
In justifying the error, the plaintiffs state that McGuire began work at the Loggans firm only four days before the response was due.  In addition to plaintiffs' case, McGuire received fifty other cases on the day he began work.  When McGuire inquired about the status of the plaintiffs' case, Loggans' support staff told him that the plaintiffs' prior attorney, Sweeney, already prepared and filed a response to the pending motion to dismiss.  In fact, Sweeney had not prepared the plaintiffs' answer, but had instead prepared and filed a brief in a related case.

11
The district court found that although McGuire did "everything he could have done under the circumstances", the facts failed to demonstrate excusable neglect under Rule 60(b)(1).  The district court reasoned that the plaintiffs never demonstrated cause for Sweeney's failure to prepare or file the answer to the motion even though she was the attorney in charge of the case for the majority of the litigation.  Additionally, the court noted the careless method in which the Loggans firm transferred cases.  The court found that the facts indicated carelessness on both the part of Sweeney and the Loggans firm and that the plaintiffs offered nothing more than negligence in justifying the error.

12
This court holds that the district court reasonably found that the plaintiffs failed to establish cause beyond mere negligence for their failure to file a response to defendant's motion to dismiss.  The district court correctly relied on our decisions holding that the breakdown of internal office procedures is insufficient to support a finding of excusable neglect.    See Lomas, 884 F.2d at 968 (finding district court abused its discretion in granting relief where error result of the breakdown of internal office procedures and careless oversight);  North Central Illinois Laborers' District Council v. S.J. Groves & Sons Co. Inc., 842 F.2d 164, 167-68 (7th Cir.1988) (no relief from default judgment where in house counsel failed to inform outside counsel of summons and complaint resulting in outside counsel's failure to respond because "internal procedures simply broke down").

13
In this case Loggans' internal procedures regarding the transferring and status of cases broke down.  The plaintiffs offered no explanation in their first Rule 60(b) motion for Loggans' carelessness in keeping track of the status of a lawsuit and transferring cases.  When diligence in keeping track of the progress of a lawsuit is not demonstrated, a district court does not abuse its discretion in failing to grant relief under Rule 60(b)(1).    Coleman v. Smith, 814 F.2d 1142, 1146 (7th Cir.1987).  Further, the plaintiffs' offered no justification for Sweeney's failure to prepare or file a response to the motion to dismiss.  McGuire, as current counsel, is not entitled to claim prior counsel's negligent handling of the case justifies relief.    Connecticut National Mortg. Co. v. Brandstatter, 897 F.2d 883, 884-85 (7th Cir.1990).  Thus, the district court did not abuse its discretion in denying plaintiffs' first Rule 60(b) motion.

C. Plaintiffs' Second Rule 60(b) Motion

14
On January 8, 1989, plaintiffs filed what they characterized as an "emergency motion" to reconsider the court's December 15, 1989 order denying their 60(b) motion.  The district court denied the second Rule 60(b) motion on January 12, 1990.  Once again, our review of the court's determination is limited to an abuse of discretion.    Del Carmen, 908 F.2d at 161.  The district judge stated in open court on January 12, 1990, that "I have read both the motion and the answer and I am persuaded I did not make a mistake previously"  (Trans.  Vol. 6 at p. 4).  This court may affirm the district court's decision to deny relief when the district judge's decision is supported by proper reasons in the record.    Tolliver v. Northrop Corp., 786 F.2d 316, 319 (7th Cir.1986).  With the exception of plaintiffs' new theory, that Sweeney misled the members of the Loggans firm that she filed a brief in response to the plaintiffs' complaint before the termination of her employment there, the second 60(b) motion sets forth substantially the same grounds for relief as set forth in the first 60(b) motion.  In support of their new theory the plaintiffs attached the affidavits of staff and attorneys at Loggans.  However, the plaintiffs attach no affidavit of Sweeney.  Additionally, the plaintiffs' second motion sets forth an elaborate description of the docket and diary system in place at Loggans firm, apparently in an attempt to rebut the district court's earlier conclusion that the plaintiffs' case was transferred without any safety checks.

15
Whether we interpret the plaintiffs' alleged grounds for relief under Rule 60(b)(1) ("excusable neglect") or any other ground listed in Rule 60(b), we find no abuse of discretion for denying relief.  Plaintiffs' second motion failed to present a justification for the primary neglect in the handling of the case by Sweeney.  Furthermore, plaintiffs' misrepresentation theory does not justify relief in that this case still involves the breakdown of internal office procedures.3   As stated before, the breakdown of internal office procedures is not excusable neglect.    Lomas, 884 F.2d at 968.  Likewise, plaintiffs' recitation of Loggan's docket and diary system does not warrant granting relief.  Here there is no evidence that McGuire or other members of Loggans' staff ever checked the court's docket sheet to determine the status of the case after Sweeney departed.  Based on these facts the district court did not abuse its discretion in denying plaintiffs' second 60(b) motion.

16
The defendants also assert that the plaintiffs did not present their motions timely, take quick action to correct the order of dismissal or present a meritorious claim.  Having found no abuse of discretion, it is unnecessary to rule on these contentions.  The district court's judgments denying relief under Rule 60(b) are AFFIRMED.

1
 Plaintiffs contend that although a response was not filed, Sweeney did prepare a response to defendant's motion.  Defendant counters that plaintiffs' purported response to the motion to dismiss the second amended complaint is actually plaintiffs' earlier response to defendant's motion to dismiss the first amended complaint

2
 Although plaintiffs' motion did not articulate which subsection of Rule 60(b) they relied upon, the district court treated plaintiffs' motion as brought pursuant to Rule 60(b)(1).  Plaintiffs never objected to this characterization.  As such this court analyzes plaintiffs' motion for relief under Rule 60(b)(1).    Kagan v. Caterpiller Tractor Co., 795 F.2d 601, 606 (7th Cir.1986)

3
 Even if the plaintiffs were to bring this motion under 60(b)(6) ("any other reason justifying relief from operation of the judgment"), and characterize Sweeney's alleged misrepresentations as grossly negligent conduct, which they do not, they would not be entitled to relief.  "This court has never held that an attorney's gross negligence justifies relief under Rule 60(b)."    Reinsurance, 902 F.2d at 1278


560 A.2d 353 (1989)
R.J.E.P. ASSOCIATES
v.
Martin S. HELLEWELL et al.
No. 88-277-M.P.
Supreme Court of Rhode Island.
June 22, 1989.
*354 Douglas James Rose, Philip W. Noel, Coffey, McGovern, Noel & Neal Ltd., Providence, for plaintiff.
G. Quentin Anthony, MaryJo Carr, Sheffield & Harvey, Newport, for defendant.

OPINION
FAY, Chief Justice.
This case comes before the Supreme Court pursuant to our grant of a writ of certiorari. The Jamestown Zoning Board of Review (zoning board) rejected the appeal of the plaintiff, R.J.E.P. Associates, from the building inspector's denial of a building permit. The plaintiff now seeks review of a Superior Court decision that upheld the actions of the zoning board. We affirm the decision of the Superior Court.
When we examine the Superior Court's review of a zoning-board decision, our primary concern is whether the trial justice acted within the authority granted in G.L. 1956 (1988 Reenactment) § 45-24-20. Felicio v. Fleury, 557 A.2d 480, 481 (R.I. 1989). Section 45-24-20(d) states in part:
"The [Superior] court shall not substitute its judgment for that of the zoning board as to the weight of the evidence on questions of fact. The court may affirm the decision of the zoning board or remand the case for further proceedings, or may reverse or modify the decision if substantial rights of the appellant have been prejudiced."
We shall not weigh the evidence but rather examine the record to determine whether competent evidence exists to support the Superior Court justice's decision. Felicio, 557 A.2d at 482; Lett v. Caromile, 510 A.2d 958, 960 (R.I. 1986); Rhode Island Hospital Trust National Bank v. East Providence Zoning Board of Review, 444 A.2d 862, 863 (R.I. 1982). In addition, we shall not reverse the decision below unless it is shown that the Superior Court justice misapplied the law, misconceived or overlooked material evidence, or made findings that were clearly wrong. Lett, 510 A.2d at 960; Camara v. City of Warwick, 116 R.I. 395, 407, 358 A.2d 23, 31 (1976). Mindful of our standard of review, we set out the undisputed facts pertinent to this appeal as follows.
At a tax sale in 1954 the Court Company, owned by John and James Quattrocchi (Quattrocchis), acquired lot Nos. 56, 58, and 59, located on Summit Avenue, Jamestown, tax assessor's map plat No. 1. Under the town's zoning ordinance and amendments thereto, the three lots are located in an R-80 zoned district, which requires a minimum of 80,000 square feet per lot prior to the issuance of a building permit for a single-family dwelling. Lot No. 56 contains approximately 40,000 square feet, and lot Nos. 58 and 59 each contain approximately 20,000 square feet.
The Quattrocchis subsequently perfected the titles to lot Nos. 56 and 59. Lot No. 58, which is still owned by the Quattrocchis, has a cloud on its title that has not been cleared from any of the equities of redemption. A small portion of lot No. 56 was sold to a third party and is designated as lot No. 57 on the assessor's map.
*355 On November 21, 1986, the Quattrocchis sold lot Nos. 56 and 59 to plaintiff. After acquiring these lots, plaintiff applied to the building inspector for a permit to construct a single-family dwelling on lot No. 56. The building inspector refused to issue such a permit pursuant to article 4, § 406, of the Jamestown zoning ordinance.[1]
The plaintiff then appealed the building inspector's decision to the zoning board. The board upheld the denial of the permit. According to article 4, § 406, the zoning board determined that lot Nos. 56, 58, and 59 had merged to form a single parcel of land because the lots were contiguous and were previously held under the same ownership. The zoning board based its decision on the following findings: "(1) At one time lots 56, 58, and 59 were taxed to Court Co., Inc. or James R. Quattrocchi and John Quattrocchi, III; (2) Plat 1, lots 56, 58, and 59 are in an R-80 zone; (3) Lot 56 contains approximately 40,000 square feet; (4) Lot 56 was sold to R.J.E.P. Associates on November 21, 1986, after enactment of the present zoning [ordinance]; and, (5) Lots 56, 58, and 59 are unimproved lots."
Thereafter, plaintiff appealed to the Superior Court pursuant to § 45-24-20(a).[2] In a written decision, a Superior Court justice noted that although the facts of this case were undisputed, the parties differed in regard to the application of the zoning ordinance. The plaintiff contended that the Jamestown zoning ordinance clearly permits the building of a single-family dwelling on lot No. 56. Although lot No. 56 is a substandard lot, plaintiff argued, it did not own any adjacent land to lot No. 56; therefore, lot No. 56 had not merged with any other lot. Furthermore, plaintiff alleged, a merger could not have taken place previously between lot No. 58 and any contiguous lot or lots since the title to lot No. 58 was not held free and clear. Conversely, the zoning board argued that lot Nos. 56, 58, and 59 had merged into a single parcel of land because the lots were contiguous and under single ownership from 1954 to 1986. Therefore, the zoning board contended that it had not erred in affirming the building inspector's denial of a building permit, pursuant to article 4, § 406.
After reviewing the record, transcript, and memoranda of counsel, the Superior Court justice denied plaintiff's appeal and affirmed the decision of the zoning board. The plaintiff then filed a petition for writ of certiorari to review the decision of the Superior Court, and we issued a writ pursuant thereto.
An initial examination of the concept of merger will be helpful to our review. Merger generally requires the combination of two or more contiguous lots of substandard size that are held in common ownership in order to meet the minimum-square-footage requirements of a particular zoned district. See Dedering v. Johnson, 307 Minn. 313, 239 N.W.2d 913 (1976) (court held that where owner of nonconforming undeveloped lot also owns adjacent undeveloped lot, owner must combine lots to meet minimum zoning requirements). Substandard contiguous lots cannot be developed as individual nonconforming lots unless the landowner applies for a variance or an exception. Although a variance was denied in Gaglione v. DiMuro, 478 A.2d 573, 576 (R.I. 1984), we stated that before a variance will issue, a landowner must show by probative *356 evidence that a literal application of the zoning ordinance would cause a deprivation of all beneficial use of the property.[3]
Moreover, merger provisions frequently contain exceptions whereby a lot that is smaller than the minimum zoning requirements will be exempted from the merger rule if it was a lot of record prior to the effective date of the zoning ordinance. Such an exception allows the landowner to develop a substandard lot only if the lot remains isolated and was under single ownership at the time the zoning ordinance was adopted. However, if the landowner owns any adjacent lots that, if combined, would satisfy the square-footage requirements, then the landowner is not entitled to the exception. The landowner therefore must merge the lots to form a single parcel of land that will meet the area requirements.
Turning to article 4, § 406, of the Jamestown zoning ordinance, we believe that § 406 clearly provides for the merger of substandard lots that are contiguous and share ownership. The zoning ordinance defines "lot" as a parcel of land in single or undivided ownership that may consist of more than one lot of record. Article 4, definition 16. Reading the definition of "lot" along with § 406, one sees that the merger provision clearly applies to substandard lots. Article 4, § 406, also provides for an exception to the forced-merger provision "where no adjacent land is in the same ownership so as to form a larger land parcel." Under the Jamestown zoning ordinance, a landowner who meets the prescriptions of this exception will be allowed to construct a single-family dwelling on a lot that is smaller than the minimum square-footage requirements in a particular district. We do not believe that § 406 is ambiguous or vague. Therefore, we find that the exception does not apply in this case and that the zoning board and Superior Court correctly applied article 4, § 406.
It is uncontradicted that lot Nos. 56, 58, and 59 are contiguous and were under common ownership from 1954 to 1986. It is clear to us, as it was to the building inspector, the zoning board, and the Superior Court, that between 1954 and 1986 lot Nos. 56, 58, and 59 had merged into a single parcel of land while these lots were held in common ownership by the Quattrocchis. Therefore, after examining the record, we are of the opinion that competent evidence exists to support the decision of the Superior Court.
We find no merit to plaintiff's argument that lot No. 58 could not have merged with any other lot or lots because of the cloud on the title to lot No. 58. The fact that lot No. 58 is subject to any equities of redemption relates solely to the marketability and not to the ownership of the lot. We have previously held that a deed conveyed at a tax sale "bars or extinguishes all former titles, interests, and liens not specifically excepted." Picerne v. Sylvestre, 113 R.I. 598, 600, 324 A.2d 617, 618 (1974). Furthermore, the title conveyed is "absolute subject only to defeasance by redemption." Id. at 600-01, 324 A.2d at 618; see also Sleboda v. Heirs at Law of Harris, 508 A.2d 652, 655 (R.I. 1986); Green Acres Realty, Inc. v. Rocchio, 115 R.I. 407, 409, 347 A.2d 407, 409 (1975).
Upon purchasing lot Nos. 56, 58, and 59 at a tax sale, the Quattrocchis acquired absolute title to the property subject only to any equities of redemption. Therefore, we find that the cloud on the title to lot No. 58 has no bearing on the merger of lot Nos. 56, 58, and 59 while under the ownership of the Quattrocchis.
We believe that the Superior Court justice correctly applied article 4, § 406, and acted within the authority granted under § 45-24-20. It is evident that the Superior Court justice did not misapply the law or misconceive or overlook material evidence. On the basis of this review, we hold that the Superior Court's decision upholding the denial of a building permit for a single-family dwelling on substandard lot No. 56 was clearly supported by the evidence presented.
*357 For the reasons stated, the petition for certiorari is denied and the writ previously issued is hereby quashed. The papers in this case are remanded to the Superior Court with our decision endorsed thereon.
NOTES
[1]  The town of Jamestown zoning ordinance, article 4, § 406, provides:

"Substandard Lots of Record.  No lot area, shall be so reduced that yards, total area, and lot width shall be less than prescribed for the district in which the lot is located. No yard or open space provided around any building for the purpose of complying with the provision of this ordinance shall again be used as a yard or open space for any other building. "Where no adjacent land is in the same ownership so as to form a larger land parcel, a lot smaller than the minimum dimensions and area required by this ordinance which was a lot of record on the effective date of this Ordinance may be used for a single family dwelling."
[2]  General Laws 1956 (1988 Reenactment) § 45-24-20(a) provides in part:

"Appeals to Superior Court.  (a) Any person or persons jointly or severally aggrieved by a decision of the zoning board may appeal to the superior court for the county in which the municipality is situated by filing a complaint setting forth the reasons for the appeal within twenty (20) days after a decision has been filed in the office of the zoning board."
[3]  It should be noted that plaintiff did not apply for a variance. Since this appeal comes to us solely from the denial of a building permit, we shall not address the variance issue.


                                       2015 IL App (1st) 143956
                                            No. 1-14-3956
                                                                                Fifth Division
                                                                                June 26, 2015

     ______________________________________________________________________________

                                         IN THE
                             APPELLATE COURT OF ILLINOIS
                                     FIRST DISTRICT
     ______________________________________________________________________________

                                                    )
     BANK FINANCIAL, FSB,                           )   Appeal from the Circuit Court
                                                    )   of Cook County.
            Plaintiff-Appellee,                     )
                                                    )   No. 13 CH 10316
     v.                                             )
                                                    )   The Honorable
     BARRY BRANDWEIN,                               )   Sanjay Tailor,
                                                    )   Judge Presiding.
            Defendant-Appellant                     )
                                                    )
     (5628 North Broadway, LLC,                     )
            Defendant).                             )
                                                    )
     ______________________________________________________________________________

               JUSTICE GORDON delivered the judgment of the court, with opinion.
               Presiding Justice Palmer and Justice Reyes concurred in the judgment and opinion.

                                              OPINION

¶1             On August 27, 2009, 5628 North Broadway, LLC, received a $275,000 loan from

        plaintiff, Bank Financial, FSB, in exchange for a mortgage on a commercial property that

        rented space to an auto repair shop. Defendant, Barry Brandwein, who is the manager of the

        limited liability company, signed a promissory note to plaintiff for the amount of the loan.

        On April 17, 2013, plaintiff sought to foreclose the mortgage, as a result of unpaid loan
     No. 1-14-3956

        payments and unpaid real estate taxes. The property was sold at a judicial sale, still leaving

        $73,459.61 of the loan unpaid. Plaintiff then sought to hold defendant liable for this amount,

        pursuant to the promissory note. Defendant filed a counterclaim for tortious interference and

        filed an affirmative defense in count II only, and did not file an answer to count I. On

        September 9, 2014, plaintiff moved for summary judgment on the basis of section 2-1005(c)

        of the Code of Civil Procedure (735 ILCS 5/2-1005(c) (West 2012)). Defendant's response to

        the motion for summary judgment argued that plaintiff had attempted to collect rents from

        the tenants of the property, and this action made it difficult for defendant to collect rent and

        bring the loan payments current. The trial court granted plaintiff's motion for summary

        judgment, and this appeal followed.

¶2             On appeal, defendant makes one claim: that the trial court erred in granting plaintiff's

        motion for summary judgment, because defendant raised a genuine issue of material fact that

        supported his claim that plaintiff committed tortious interference with his collection of the

        rent. For the following reasons, we do not find persuasive defendant's claim that the trial

        court erred in granting plaintiff's motion for summary judgment.

¶3                                          BACKGROUND

¶4                                          I. Pretrial Filings

¶5                                            A. Complaint

¶6             On April 17, 2013, plaintiff, Bank Financial, FSB, filed a complaint in the chancery

        division of the circuit court of Cook County against defendants, Barry Brandwein and 5628

        North Broadway, LLC (the LLC). While Brandwein and the LLC are both named as

        defendants in the complaint, the answer was filed solely on behalf of Brandwein, and

        Brandwein is the sole defendant on appeal.

                                                     2
       No. 1-14-3956

¶7                Count I of the complaint sought to foreclose a mortgage on property located on North

          Broadway Street, in Chicago, Illinois (the property). The mortgagor was the LLC, the

          mortgagee was plaintiff, and the mortgage was for $275,000. 1 The complaint alleged that the

          LLC did not make their monthly payments to plaintiff and did not make the payments for real

          estate taxes as of April 15, 2013, and that, as a result, plaintiff had accelerated the payments

          due under the mortgage, pursuant to an acceleration clause in the mortgage where plaintiff

          reserved the "right at its option without notice to Borrower or Grantor to declare the entire

          indebtedness immediately due and payable, including any prepayment penalty that Borrower

          would be required to pay." The total due from the LLC was $279,122.43. The complaint

          sought, in part, to foreclose the mortgage, shorten redemption, and appoint a receiver to

          possess the property,

¶8                Count II of the complaint stated that defendant and the LLC had signed a promissory

          note for the amount of the mortgage, and that they had breached the promissory note by

          failing to make monthly payments on the mortgage. The complaint sought to hold defendant

          and the LLC jointly and severally liable for the total amount of $279,122.43, as well as

          continually accruing interest, attorney fees, and costs.

¶9                                     B. Petition to Appoint Receiver

¶ 10              On June 18, 2013, plaintiff filed a petition to appoint a receiver. Defendant and the

          LLC did not respond to count I of the complaint or the petition to appoint a receiver. On

              1
               In plaintiff's motion for summary judgment and on appeal, plaintiff asserts that it loaned
       defendant and the LLC $550,000. However, in its complaint, plaintiff states that it loaned
       defendant and the LLC $275,000. Both the promissory note and mortgage state that the original
       loan was for $275,000. Plaintiff's confusion might arise from the line in the mortgage stating
       "MAXIMUM LIEN. At no time shall the principal amount of Indebtedness secured by the
       Mortgage, not including sums advanced to protect the security of the Mortgage, exceed
       $550,000."
                                                        3
       No. 1-14-3956

          September 3, 2013, the court entered an order appointing a receiver for the property and an

          order of default against defendant and the LLC. The court later entered an order of judgment

          of foreclosure and sale, foreclosing on the mortgage and approving the sale of the property at

          public auction.

¶ 11                   C. Motion to Transfer to Law Division and to Confirm Judicial Costs

¶ 12             On November 5, 2013, plaintiff filed two motions, a "motion to confirm judicial sale;

          approve post judgment costs; enter deficiency judgment; and award immediate possession"

          and a motion to transfer the case to the law division. In the first motion, plaintiff stated that it

          had fairly auctioned the property for $220,000 on October 21, 2013, at the judicial sale, and

          requested the court to confirm the sale. After the judicial sale, there was a deficiency due

          from defendant and the LLC of $73,459.61. The second motion requested that the chancery

          court transfer the case to the law division, so that plaintiff could recover the remaining debt

          from defendant and the LLC, pursuant to count II of the complaint.

¶ 13             On January 21, 2014, the chancery court entered an order granting plaintiff's motion

          to confirm the sale of the property with postjudgment costs and transferred the case to the

          law division to allow plaintiff to pursue count II of the complaint.

¶ 14                            D. Motion for Order of Default and Judgment

¶ 15             On April 16, 2014, plaintiff filed a motion in the trial court seeking a default

          judgment against defendant and the LLC. The motion alleged that defendant and the LLC

          were personally served on March 14, 2014. Defendant and the LLC did not file their required

          answer by April 14, 2014. Plaintiff sought a default judgment against defendant and the LLC

          for $77,771.14. This amount reflected the previous deficiency in judgment along with

          accrued interest and additional court and attorney fees.

                                                         4
       No. 1-14-3956

¶ 16                     E. Defendant's Motion to Dismiss and Plaintiff's Response

¶ 17             On May 5, 2014, defendant filed a motion to dismiss. The motion alleged that

          defendant was not properly served in the foreclosure case and, therefore, the chancery court

          did not have personal jurisdiction over him. The motion further alleged that there were

          defects in the pleadings. Specifically, defendant stated that the "motion to confirm sale"

          referred to the property as a 12-unit nonresidential building, and the "order appointing

          receiver" referred to the property as a "three unit mixed commercial/residential building."

          Defendant asserted that the property is a single-unit garage used as an auto repair shop.

¶ 18             On June 6, 2014, plaintiff filed a response to defendant's motion to dismiss. The

          response stated that any defects in the motions and orders, which plaintiff noted are not

          "pleadings," were not substantial. Rather, the important detail was that the property was

          commercial and not residential. Plaintiff also stated that defendant was attempting to attack

          count I of the complaint, claiming that the chancery court did not have personal jurisdiction.

          However, plaintiff argued that this was improper, as a final judgment in that case had been

          entered. Plaintiff also asserted that the motion to dismiss should be stricken because

          defendant's counsel had not entered her written appearance and filed the appropriate fee.

¶ 19             On June 27, 2014, the trial court struck defendant's motion because his counsel had

          failed to enter her written appearance and pay the appropriate fee. Defendant and the LLC

          were granted 21 days to answer count II of the complaint.

¶ 20                          F. Defendant's Answer and Plaintiff's Response

¶ 21             On July 17, 2014, defendant filed an answer and affirmative defense to count II of

          plaintiff's complaint. The LLC did not file an answer to the complaint. Defendant stated that

          he is the manager of the LLC, which was the former owner of the property. Defendant's

                                                       5
       No. 1-14-3956

          answer stated that immediately following the filing of plaintiff's complaint on April 17, 2013,

          Gordana Jovanovic, a commercial banking officer for plaintiff, appeared on the property at

          which time she told defendant's tenants, 2 Carlos and Filiae Carreto, the owners of an auto

          repair shop located in the property, not to pay the monthly rent under their lease to defendant,

          but instead to pay the rent to plaintiff. Defendant stated that the monthly rent was $3,000.

          Plaintiff did not have constructive possession of the property until September 3, 2013.

          Defendant also claimed:

                       "8. That by its demand for payment of rent, BANKFINANICAL, LLC [sic]

                  effectively prevented Defendants from paying the delinquent amounts due under the

                  Note.

                       9. That as a result of its wrongful demand for rent from Defendant's tenant, and

                  the resulting inability of Defendant to use the rent to bring the loan current, the

                  property was foreclosed and sold at the judicial sale to Plaintiff.

                       ***

                       11. That the allegations contained in this Affirmative Defense would have

                  allowed him to properly defend the foreclosure action and prevent the judicial sale

                  from proceeding."

¶ 22              Defendant also claimed that the court did not have personal jurisdiction over him,

          because he was not properly served in the foreclosure case.

¶ 23              On August 7, 2014, plaintiff filed a "response" (reply) to defendant's answer. In the

          "response," plaintiff denied wrongfully demanding rent from the tenant, but agreed that

          defendant failed to bring the loan current and that the property was sold at a judicial sale. In
              2
                Defendant's answer refers to the tenants as "his" tenants, however; they were actually
       tenants of the LLC.
                                                        6
       No. 1-14-3956

           plaintiff's "response" it stated that rent from the tenants, paid to the receiver, was only $1,500

           a month.

¶ 24                              G. Plaintiff's Motion for Summary Judgment

¶ 25               On September 9, 2014, plaintiff filed a motion for summary judgment for count II of

           the complaint. In the motion, plaintiff stated that defendant's affirmative defense failed to

           create a genuine issue of material fact. Plaintiff claimed that pursuant to the loan documents,

           plaintiff was entitled to collect and receive rents "at any time, and even though no default

           shall have occurred." Plaintiff exercised those rights on February 27, 2013, when it informed

           the tenants of the auto shop of plaintiff's right to collect rent. 3 That right came from the

           mortgage, which stated "Lender shall have the right, without notice to Borrower or Grantor,

           to take possession of the Property and collect the Rents, including amounts past due and

           unpaid, and apply the net proceeds, over and above Lender's costs, against the Indebtedness.

           In furtherance of this right, Lender may require any tenant or other user of the Property to

           make payments of rent or use fees directly to Lender. *** Lender may exercise its right

           under this subparagraph either in person, by agent, or through a receiver."

¶ 26               In its motion, plaintiff also stated that the chancery court did have personal

           jurisdiction over defendant and the LLC because service by publication was used after

           numerous attempts to personally serve defendant and the LLC had failed. Further, plaintiff

           argued that a final judgment was entered, so it was improper for defendant to assert claims

           relative to count I.

               3
                 Plaintiff's motion for summary judgment states only that it informed the tenants of its
       right to collect rent. However, the letter sent to the tenants on February 27, 2013, does instruct
       the tenants to begin paying rent to plaintiff. Plaintiff does not claim in its motion for summary
       judgment that as a result of this letter the tenants ever paid rent to plaintiff. In plaintiff's response
       to defendant's answer, plaintiff does state that the receiver was paid rents by tenants, after being
       judicially appointed on September 3, 2013.
                                                           7
       No. 1-14-3956

¶ 27                      H. Defendant's Response to Motion for Summary Judgment

¶ 28              On October 14, 2014, defendant filed a response to plaintiff's motion for summary

          judgment. In his response, defendant asserted that Illinois law required a receiver to be

          appointed by the foreclosure court before any rent could be collected on behalf of a creditor.

          Defendant asserted that plaintiff did not deny that it demanded rent from the property's

          tenants before a receiver was appointed. The response does not claim that the tenants ever

          paid this rent to plaintiff.

¶ 29              Defendant further claimed that he received a default notice from plaintiff on January

          9, 2013, which stated that the principal payment of the note was $795.71 behind. Defendant

          stated that within one week after plaintiff filed its complaint, on April 17, 2009, Gordana

          Jovanovic, representing plaintiff, arrived on the property and demanded that tenants pay rent

          to plaintiff. 4 This interference of defendant's landlord-tenant business relationship prevented

          tenant from paying the deficient amount of $795.71. 5

¶ 30              Finally, defendant claimed that through plaintiff's demand that the tenants pay it rent,

          plaintiff failed its duty to mitigate damages by interfering with defendant's ability to collect

          rent and reinstate the note.

              4
                 In defendant's answer and his response to the motion for summary judgment, defendant
       does not claim that the letter sent on February 27, 2013, instructing the tenants to pay their rent
       to defendant, was tortious interference. Defendant claims only that he had "difficulty" collecting
       rents from the tenants following Jovanovic's contact with the tenants in person after the
       complaint was filed on April 17, 2013.
               5
                 The letter being referred to actually listed defendant and the LLC as $8,555.92 behind
       on their payments, and gave defendant and the LLC until January 23, 2013, to bring the loan
       current. After April 17, 2013, once the complaint was filed, plaintiff accelerated the payments,
       pursuant to provisions in the mortgage and note, and the actual amount due was $279,122.43.
                                                        8
       No. 1-14-3956

¶ 31             An affidavit, signed by defendant, was attached to the response. In the affidavit,

          defendant stated "[t]hat the interference of Gordana Jovanovich [sic] made it difficult to

          collect the rent that was needed to reinstate the loan."

¶ 32             Defendant also attached a lease for the property to the response. The lease listed Z&B

          Properties, LLC, as the landlord of the property, not 5638 North Broadway, LLC. The lease

          listed Angel Gonzalez as the tenant, not the Carretos. The lease also terminated on May 31,

          2008, almost a year before plaintiff gave a loan to 5628 North Broadway, LLC.

¶ 33                          II. Hearing on the Motion for Summary Judgment

¶ 34             On December 23, 2014, the trial court heard arguments regarding the motion for

          summary judgment on count II of the complaint:

                       "THE COURT: You know, I read the papers. There's a defense pled that the bank

                 improperly collected rents when it didn't have possession—actual, constructive, or

                 otherwise—of the premises. And Illinois law does not permit that.

                       ***

                       PLAINTIFF'S COUNSEL: Right. They just make this allegation that an agent of

                 the bank went to the property and demanded those rents. But there's no allegation that

                 those rents were actually paid to the bank.

                       THE COURT: So if there's no allegation that the rents were actually paid, there's

                 no defense is what you're saying, I think.

                       ***

                       THE COURT: So paragraph 10 actually says that, quote, 'That the interference of

                 Gordana, last name spelled Jovanovich, [sic] made it difficult to collect the rent that

                 was needed to reinstate the loan.'

                                                        9
No. 1-14-3956

                That kind of suggests that the tenant may not have actually paid the bank. It's

         ambiguous at best.

                PLAINTIFF'S COUNSEL: It is. And just to reiterate the timeline, your honor, this

         all occurred approximately three months after they were required to cure the default

         anyway.

                So the default was in existence, and the note had already been accelerated before

         any of these allegations even arise.

                THE COURT: So what am I to make of this allegation that Miss Jovanovich, of

         the bank, told the tenants to pay the bank and not the borrower?

                DEFENSE COUNSEL: Well, I think, as it's set out in the brief, that the

         defendants allege that that event occurred within a week of filing the complaint for

         the foreclosure. So there was no appointment of receiver. And she went in and said,

         you're to pay me now.

                THE COURT: Right. But what does it matter if there's no allegation that the

         tenants, in fact, paid the bank rather than the borrower?

                ***

                THE COURT: *** The only evidence that I have before me is an affidavit of the

         defendant in which he avers that a representative of the bank told the tenants to pay

         the bank rather than the borrower.

                But short of the tenants actually paying the bank, as opposed to the borrower, I

         don't know what you do with that defense. I don't know whether it's a legally

         cognizable defense. There's no authority that's been offered.

                ***

                                                10
       No. 1-14-3956

                       THE COURT: Is there any allegation that the tenants, in fact, did not pay the

                  borrower and that they paid the bank?

                       DEFENSE COUNSEL: I don't see that.

                       ***

                       THE COURT: Okay. Here's what I'm going to do.

                       It would appear to me that in order for the defense to be viable and the claim to be

                  viable—and, again, I'm talking about the defense of tortious interference and the

                  affirmative claim for tortious interference—the defendant would have to allege that

                  the tenants, in fact, did not pay the borrower and, instead, paid the bank as requested

                  by the bank. But I don't have that allegation here.

                       So I will grant the Plaintiff's Motion for Summary Judgement and deny the

                  Motion for Leave to File the Counterclaim."

¶ 35              The trial court granted plaintiff's motion for summary judgment, and entered

          deficiency judgments against defendant and the LLC in the amount of $91,524.21. This

          amount was based on $79,544.57 due under the promissory note, 6 and attorneys fees and

          costs. This appeal followed.

¶ 36                                              ANALYSIS

¶ 37              On appeal, defendant makes one claim: that the trial court erred in granting plaintiff's

          motion for summary judgment because defendant raised a genuine issue of material fact that

              6
                 Since interest was still accruing, the amount sought by plaintiff has steadily increased
       during the length of the litigation. On November 5, 2013, when plaintiff filed a motion with the
       chancery court to enter a deficiency judgment, plaintiff sought only $73,459.61, pursuant to the
       promissory note. On April 16, 2014, when plaintiff moved for a default judgment, plaintiff
       sought $77,771.14, pursuant to the promissory note. However, on December 23, 2014, when the
       trial court entered summary judgment, the order reflected $79,544.52 due under the promissory
       note. The accrual of interest explains the steady increase of these amounts.
                                                        11
       No. 1-14-3956

          supported his claim that plaintiff committed tortious interference with his ability to collect

          rent. For the following reasons, we do not find persuasive defendant's claim that the trial

          court erred in granting plaintiff's motion for summary judgment.

¶ 38                                          I. Standard of Review

¶ 39             Summary judgment is appropriate where the pleadings, depositions, and admissions

          on file, together with any affidavits and exhibits, when viewed in the light most favorable to

          the nonmoving party, indicate that there is no genuine issue of material fact and the moving

          party is entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2012). When a

          court determines whether the moving party is entitled to summary judgment, the pleadings

          and evidentiary material in the record must be construed strictly against the movant. Happel

          v. Wal-Mart Stores, Inc., 199 Ill. 2d 179, 186 (2002). We review a circuit court's decision on

          a motion for summary judgment de novo. Outboard Marine Corp. v. Liberty Mutual

          Insurance Co., 154 Ill. 2d 90, 102 (1992). De novo consideration means the reviewing court

          performs the same analysis that a trial judge would perform. Khan v. BDO Seidman, LLP,

          408 Ill. App. 3d 564, 578 (2011).

¶ 40              "Summary judgment is a drastic measure and should only be granted if the movant's

          right to judgment is clear and free from doubt." Outboard Marine Corp. v. Liberty Mutual

          Insurance Co., 154 Ill. 2d 90, 102 (1992). "Mere speculation, conjecture, or guess is

          insufficient to withstand summary judgment." Sorce v. Naperville Jeep Eagle, Inc., 309 Ill.

          App. 3d 313, 328 (1999). The party moving for summary judgment bears the initial burden of

          proof. Nedzvekas v. Fung, 374 Ill. App. 3d 618, 624 (2007). The movant may meet its burden

          of proof either by affirmatively showing that some element of the case must be resolved in its

          favor or by establishing " 'that there is an absence of evidence to support the nonmoving

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          party's case.' " Nedzvekas, 374 Ill. App. 3d at 624 (quoting Celotex Corp. v. Catrett, 477 U.S.

          317, 325 (1986)). To prevent the entry of summary judgment, the nonmoving party must

          present a bona fide factual issue and not merely general conclusions of law. Caponi v.

          Larry's 66, 236 Ill. App. 3d 660, 670 (1992). Therefore, while the party opposing the motion

          is not required to prove her case at the summary judgment stage, she must provide some

          factual basis to support the elements of her cause of action. Illinois State Bar Ass'n Mutual

          Insurance Co. v. Mondo, 392 Ill. App. 3d 1032, 1036 (2009); Ralston v. Casanova, 129 Ill.

          App. 3d 1050, 1059 (1984). On a motion for summary judgment, the court cannot consider

          any evidence that would be inadmissible at trial. Brown, Udell & Pomerantz, Ltd. v. Ryan,

          369 Ill. App. 3d 821, 824 (2006). Thus, the party opposing summary judgment must produce

          some competent, admissible evidence which, if proved, would warrant entry of judgment in

          her favor. Brown, Udell & Pomerantz, 369 Ill. App. 3d at 824. Summary judgment is

          appropriate if the nonmoving party cannot establish an element of her claim. Willett v.

          Cessna Aircraft Co., 366 Ill. App. 3d 360, 368 (2006). We may affirm on any basis appearing

          in the record, whether or not the trial court relied on that basis, and even if the trial court's

          reasoning was incorrect. Ray Dancer, Inc. v. DMC Corp., 230 Ill. App. 3d 40, 50 (1992).

¶ 41                                        II. Tortious Interference

¶ 42             Defendant claims that the trial court erred in granting plaintiff's motion for summary

          judgment because defendant raised a genuine issue of material fact that supported his claim

          that plaintiff committed tortious interference with his ability to collect rents.

¶ 43             "Recovery under an action for tortious interference with a contractual relation

          requires that a plaintiff plead and prove (1) the existence of a valid and enforceable contract

          between the plaintiff and a third party, (2) that defendant was aware of the contract, (3) that

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          defendant intentionally and unjustifiably induced a breach of the contract, (4) that the

          wrongful conduct of defendant caused a subsequent breach of the contract by the third party,

          and (5) that plaintiff was damaged as a result." Poulos v. Lutheran Social Services of Illinois,

          Inc., 312 Ill. App. 3d 731, 742 (2000) (citing Strosberg v. Brauvin Realty Services, Inc., 295

          Ill. App. 3d 17, 32-33 (1998)).

¶ 44             We first note that, on appeal, plaintiff claims that defendant cannot assert an

          affirmative defense of tortious interference because the property was owned by the LLC, and,

          therefore, defendant was not a party to any rental contract between the LLC and the tenants.

          Plaintiff also states that defendant has not provided a lease proving otherwise. However, we

          need not make a finding on whether defendant has standing to assert tortious interference,

          because his claim fails for other reasons.

¶ 45             Defendant's claim of tortious interference relies on Comerica Bank-Illinois v. Harris

          Bank Hinsdale, 284 Ill. App. 3d 1030 (1996). In Comerica Bank-Illinois, a mortgagor

          defaulted on its mortgage and the mortgagee, Comerica, began to exercise its assignment of

          rents, granted by the mortgagor as security for the loan, without foreclosing the mortgage,

          seeking the appointment of a receiver, or seeking approval from a court. Comerica Bank-

          Illinois, 284 Ill. App. 3d at 1031-32. Chicago Title and Trust Company, which had issued a

          second mortgage on the property, filed an action to foreclose on the second mortgage and a

          return of rents from Comerica. Comerica Bank-Illinois, 284 Ill. App. 3d at 1032. The trial

          court found that the rents properly belonged to the possessor of the property and returned the

          rents collected by Comerica to the mortgagor. Comerica Bank-Illinois, 284 Ill. App. 3d at

          1032. On appeal, the Appellate Court of the First District held that the assignment of rents

          agreement was against public policy, holding "[t]he possession requirement reflects the

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          public policy in Illinois that seeks to prevent mortgagees from stripping the rents from the

          property and leaving the mortgagor and the tenants without resources for maintenance or

          repair." Comerica Bank-Illinois, 284 Ill. App. 3d at 1033 (citing In re J.D. Monarch

          Development Co., 153 B.R. 829 (Bankr. S.D. Ill. 1993), and re Michigan Avenue National

          Bank, 2 B.R. 171, 185-86 (Bankr. N.D. Ill. 1980)). The court then held that, even with an

          assignment of rents, a mortgagee must have actual or constructive possession of a property in

          order to collect rents. Comerica Bank-Illinois, 284 Ill. App. 3d at 1034. This constructive

          possession could be obtained through the judicial appointment of a receiver, but merely

          requesting the appointment of a receiver is not enough, the court must have actually ordered

          the appointment. Comerica Bank-Illinois, 284 Ill. App. 3d at 1035.

¶ 46              However, in the case at bar, plaintiff has shown " 'that that there is an absence of

          evidence to support the nonmoving party's case.' " Nedzvekas, 374 Ill. App. 3d at 624

          (quoting Celotex Corp., 477 U.S. at 325). Specifically, there is no evidence that defendant

          was damaged by the alleged tortious interference, or even that the tenants broke their contract

          with defendant by not paying rent. Poulos, 312 Ill. App. 3d at 742. The only evidence

          provided by defendant was his own affidavit where he stated that, after Jovanovic

          approached the tenants, it became "difficult" to collect the rent. However, defendant does not

          state in his affidavit that the tenants actually paid rent to plaintiff, or even that the tenants did

          not pay rent to defendant. Even if the rent was "difficult" to collect, if the tenants did pay

          defendant, then there was no breach of contract, no cognizable harm, and thus no tortious

          interference. Poulos, 312 Ill. App. 3d at 742. By not providing any support that the tenants

          actually paid plaintiff, or that they failed to pay defendant, defendant has not shown a factual

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       No. 1-14-3956

          basis to support the elements of tortious interference. Illinois State Bar Ass'n Mutual

          Insurance Co., 392 Ill. App. 3d at 1036.

¶ 47             We also note that defendant claims that Jovanovic contacted the tenants within a

          week after plaintiff filed its complaint, and that her demand that the tenants pay rent to

          plaintiff prevented defendant from bringing the loan current. However, at that time,

          defendant no longer had the option of bringing the loan current. The opportunity to bring the

          loan current, referred to in the letter sent by plaintiff to defendant on January 9, 2013, had

          expired, and the total due from defendant was $279,122.43, not the $795.71 defendant claims

          was due. Thus, the idea that plaintiff could have used the rent from the period between when

          Jovanovic contacted the tenants and when the court appointed a receiver, approximately five

          months, to bring the loan current is not a bona fide factual issue. Caponi, 236 Ill. App. 3d at

          670. If defendant stated in his affidavit or provided documents showing that rents were paid

          to plaintiff, plaintiff still would have been entitled to summary judgment, but the deficiency

          judgment would have been lessened by the rent collected by plaintiff. See, e.g., Comerica

          Bank-Illinois, 284 Ill. App. 3d at 1035. Because these rents would not have allowed

          defendant to bring the loan current, even if defendant had provided an affidavit or documents

          showing the rents were not paid to him, which he failed to do, it would not warrant a

          judgment in his favor. Brown, Udell & Pomerantz, 369 Ill. App. 3d at 824.

¶ 48             For the foregoing reasons, we cannot find, as a matter of law, that the trial court erred

          in granting summary judgment to plaintiff. Outboard Marine Corp., 154 Ill. 2d at 102; 735

          ILCS 5/2-1005(c) (West 2012).

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       No. 1-14-3956

¶ 49                                         CONCLUSION

¶ 50             For the foregoing reasons, we do not find persuasive defendant's claim that the trial

          court erred in granting plaintiff's motion for summary judgment. We affirm.

¶ 51             Affirmed.

                                                     17


736 F.Supp. 223 (1990)
James "Buster" DOUGLAS, John Johnson, and The Mirage Casino-Hotel, a Nevada corporation, Plaintiffs,
v.
DON KING PRODUCTIONS, INC., a New York corporation, Defendant.
No. CV-S-90-138-HDM.
United States District Court, D. Nevada.
April 9, 1990.
*224 C. Stanley Hunterton, Las Vegas, Nev., for plaintiffs.
Paul R. Hejmanowski and Gregory D. Morrison, Lionel, Sawyer & Collins, Las Vegas, Nev., Robert W. Hirth, Sidley & Austin, New York City, for defendant.

ORDER
McKIBBEN, District Judge.
James "Buster" Douglas and his manager, John Johnson, seek a judgment declaring that two contracts between Douglas and Don King Productions (DKP) are unenforceable. The Mirage joined Douglas in seeking a judgment that the two contracts are unenforceable and also seeks a declaration that the contract it entered into with Douglas was valid and that its actions did not constitute tortious interference of contract. DKP moves this court to dismiss The Mirage alleging The Mirage has no standing to invalidate the Douglas-DKP contracts and has not presented an actual case or controversy upon which relief may be granted.
On or about December 31, 1988, Douglas entered into a contract with DKP, which gave DKP the exclusive right to promote all of Douglas' fights until 1991. On August 14, 1989, Douglas and DKP entered into a contract, pursuant to which DKP was to promote a heavyweight championship between Douglas and Michael Tyson. The 1989 contract also gave DKP the right to promote the next three fights entered into after the Tyson fight.
On February 10, 1990, Douglas defeated Tyson and became the heavyweight champion of the world. Subsequent to the fight, Douglas and King had disputes, and Douglas and Johnson negotiated with The Mirage to conduct Douglas' first title fight defense at The Mirage without DKP as the promoter. During the negotiations DKP's counsel sent The Mirage a letter informing The Mirage of the existing contracts between DKP and Douglas. The negotiations resulted in an agreement contingent on a waiver of all rights by DKP or a court order declaring the contracts between Douglas and DKP unenforceable.
Actions for declaratory relief are subject to the same limitations of standing and actual case or controversy as any other litigation. Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982). To obtain judicial relief, a plaintiff must allege such a personal stake in the outcome of the controversy "as to warrant his invocation of federal court jurisdiction and to justify exercise of the court's remedial powers on his behalf." Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975). To allege a personal stake, the plaintiff must show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the other party. Diamond v. Charles, 476 U.S. 54, 106 S.Ct. 1697, 1703, 90 L.Ed.2d 48 (1986); quoting Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 99 S.Ct. 1601, 1608, 60 L.Ed.2d 66 (1972).
The Mirage alleges if the Douglas-DKP contract is unenforceable, it would have an opportunity to promote Douglas' next fight, thus it has alleged a personal stake in the matter. The Mirage is in the same posture as other would-be promoters who would like to promote Douglas' next fight. Since the contingencies in The Mirage-Douglas agreement may never occur, the contract is too speculative to constitute an actual or threatened injury cognizable at this time in this declaratory judgment action. See Diamond v. Charles, 476 U.S. 54, 106 S.Ct. 1697, 90 L.Ed.2d 48 (1986). The only parties with a legally recognizable personal stake in this matter are the parties to the contract, Douglas and Johnson.
Generally, a plaintiff can assert only his own legal interests and not those of third parties. Phillips Petroleum Co. v. Shutts, *225 472 U.S. 797, 105 S.Ct. 2965, 2970, 86 L.Ed.2d 628 (1985). An exception to this legal principle is that a third person may assert the rights or interests of other individuals who are unable to assert those rights themselves. There is no evidence here that Douglas cannot protect his own rights, and in fact, he has taken steps to do so by filing this action. Therefore, The Mirage has no standing to declare the Douglas-DKP contract unenforceable.
The Mirage also asks this court to declare that their contingent contract with Douglas is valid and did not constitute tortious interference of contract. In defining the boundaries of an "actual controversy" in the declaratory judgment context, the Supreme Court has held "the question in each case is whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment." Arrowhead Indus. Water, Inc. v. Ecolochem, Inc., 846 F.2d 731, 735 (Fed.Cir.1988), quoting Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510, 512, 85 L.Ed. 826 (1941). Further, the court cannot grant declaratory relief if the asserted controversy involves only future or speculative rights. Hunt v. State Farm Auto Ins. Co., 655 F.Supp. 284 (D.Nev. 1987).
The court is satisfied from the present record that a judgment declaring the validity of the agreement between Douglas and The Mirage is not yet ripe. First, the agreement is speculative and may never come into existence. Second, the agreement is between Douglas and The Mirage, not DKP.
The remaining issue is whether this court can declare The Mirage's activities as non-tortious. A claim based on negligent or intentional acts is not appropriate for decision in a declaratory judgment action. 10 Wright, Miller & Kane, Federal Practice and Procedure: Civil 2d § 2765 (1983); UNC Resources, Inc. v. Benally, 518 F.Supp. 1046, 1049 (D.Az.1981); Southern Ins. Co. v. Bennett, 680 F.Supp. 387, 389 (D.Ga.1988).
Accordingly, Defendant Don King Productions' motion to dismiss The Mirage Casino-Hotel as plaintiff (# 12) is GRANTED.
It is so ORDERED.