)
PHYLLIS ALPERN,                        )
                                       )
                  Petitioner,          )
                                       )
            v.                         )  Case No. 91 D 5122
                                       )
EUGENE ALPERN,                         )  Judge Veronica B. Mathein
                                       )
                  Respondent.          )
                                       )

NOW COMES the purported Respondent, EUGENE ALPERN ("EUGENE") in this proceeding and responds to the PETITION FOR ATTORNEY'S FEES AND COSTS filed by attorney Theodora Gordon ("Gordon") on May 6, 1998.

1. The law firm of James J. Reagan, P.C. ("Reagan"), was employed by EUGENE. After an examination of the record of case no. 91-D-5122 and after reviewing the associated Appellate Brief in that case, Reagan filed on May 14, 1997 a PETITION TO VACATE THE VOID JUDGMENT UNDER 735 ILCS 5/1401(f).

2. The Appellate court did not find that it had subject-matter jurisdiction. The Court did find that there was no petition in the record of the appeal, which by their own order upon the Clerk of the Circuit Court of Cook County, constituted the entire record of trial case no. 91-D-5122. Having found no petition in the record of the case, they only had authority to, and had a duty to, vacate the void judgment of the 91-D-5122 trial court. Any order they issued except for an order vacating the 91-D-5122 trial court's orders and judgment was without lawful authority. Franson on Behalf of Franson v. Micelli, 172 Ill.2d 352, 666 N.E.2d 1188 (1996). The purported decision of the Appellate Court affirming that the trial court held subject- matter jurisdiction as to a cause of action, and only to the element of a cause of action, was issued without authority. Further, the Appellate Court did not find that all of the elements of subject-matter jurisdiction had been met by the Petitioner. The presumption of a want of subject-matter jurisdiction in all statutory proceedings still exists in the 91-D-5122 action.

3. Gordon acknowledges in her Fee Petition that she was employed by PHYLLIS, originally in October, 1996, with respect with an action in Chancery Court, titled 96-CH-5651. On December 6, 1996, Gordon filed her appearance in the Chancery action, mislabeling[fn1] the action as 91-D-5122. At that time there was no proceeding occurring in case no. 91-D-5122, nor had there been since approximately 1992.

The written appearance filed by Gordon specifically states that the action in which she filed her appearance was titled Eugene W. Alpern v. Phyllis Alpern, Allen S. Gabe, Robert K. Blain and Regina Scannicchio. That is the correct title for the Chancery action, and was not a divorce action.

At no time has Gordon filed an appearance in the divorce action, Phyllis Alpern v. Eugene Alpern, case no. 90-D- 2724 or case no. 91-D-5122. Gordon is NOT the attorney of record in the divorce action. and has no lawful authority to appear before this court in the divorce action.

Under both Supreme Court Rule ("SCR") 13(c)(1)[fn2] and Rule 1.4(a)2[fn2] of the Circuit Court of Cook County, Gordon shall not address the court until after she has filed a written appearance. Since Gordon has never filed her written appearance in the 91-D-5122 action, she cannot lawfully appear before this court, or any court, in any 91-D-5122 action.

Supreme Court Rules are binding on both the court and the litigants. Harris v. Annunzio, 411 Ill. 124, 103 N.E.2d 477 (1952). Only the Supreme Court has the authority to revise any SCRs. All lower courts, including this court, are bound to follow all SCRs.

Without filing a written appearance in the action titled Phyllis Alpern v. Eugene Alpern, case no. 91-D-5122, Gordon has not provided any legal services in this Court to her client and therefore cannot lawfully charge her client for attorney fees for appearing in the 91-D-5122 Court.

Without filing a written appearance in the action titled Phyllis Alpern v. Eugene Alpern, case no. 91-D-5122, Gordon is not entitled to any award of costs and fees in that case, and certainly not against EUGENE.

Without filing a written appearance in the action titled Phyllis Alpern v. Eugene Alpern, case no. 91-D-5122, Gordon has no standing to appear in this court and present any Petition for Attorney's Fees and Costs.

Further having attempted to deceive this Court (a) in her filing a written appearance in the 96-CH-5751 action, and mislabeling it as a 91-D-5122 action, (b) in claiming that she had filed a written appearance in the current 91-D-5122 action when there is no evidence of such filing having taken place, (c) in her appearing before this court without standing in an attempt to deceive this court, (d) in failing to fully inform this court on the actions of her client which deprived this court of subject-matter jurisdiction, (e) in her making false claims as to applicable citations, (f) in her unlawfully appearing before other judges in this 91-D-5122 action, Gordon has committed a fraud upon the courts, and has engaged in actions which deprive her of any attorney fees and costs.

4. Gordon should have known that Reagan was prohibited from practicing law in Illinois. She assisted Reagan in committing a fraud upon this Court by not exposing and reporting Reagan and by appearing, without a written appearance, in the 91- D-5122 court. Gordon also assisted, connived with, winked at, Reagan's engaging in actions in violation of 720 ILCS 5/32-5. By not reporting Reagan, Gordon acted as a principal in Reagan's violation of the law. 720 ILCS 5/32-5.

In every case cited by Gordon in her "PETITIONER'S RESPONSE TO RESPONDENT'S MOTION DEMANDING PROOF OF SUBJECT MATTER JURISDICTION" filed 45 minutes before the scheduled hearing on April 16, 1998, and without due notice having been given, there was a petition filed in each case to confer subject-matter jurisdiction upon that court. None of her citations are on point. In the case at bar, there never was a valid petition nor was a summons served upon EUGENE. At no time was subject-matter jurisdiction conferred upon the 91-D-5122 trial court.

At no time has the Petitioner provided any evidence that the 91-D-5122 trial court held subject-matter jurisdiction. At no time has Judge Mathein included her findings of her inspection of the record of the 91-D-5122 trial court in her orders, as required by Jennings.

Without any inspection of the record of the case, Judge Mathein consistently rules against subject-matter jurisdiction issues in a statutory proceeding.

Judge Mathein rulings disregard the holdings of Supreme Courts, declaring what elements are required to prove that subject-matter jurisdiction has been conferred upon the court.

Since there is no presumption that the 91-D-5122 trial court ever held subject-matter jurisdiction and since four judges have found no petition in the record of the case, the lack of subject-matter jurisdiction has been firmly established. Since subject-matter jurisdiction has never been conferred upon the 91-D-5122 trial court, the August 10, 1992 judgment remains void.

This court has a duty to vacate the void judgment issued in case no. 91-D-5122. People v. Magnus, 262 Ill.App.3d 362, 633 N.E.2d 869, 872 (1st Dist. 1994); Irving v. Rodriquez, 27 Ill.App.2d 75, 79, 169 N.E.2d 145 (1960). A court has no discretion when it has a duty. Littleton v. Berbling, 468 F.2d 389, 412 (7th Cir. 1972), citing Osborn v. Bank of the United States, 9 Wheat (22 U.S.) 738, 866, 6 L.Ed 204 (1824).

PHYLLIS and EUGENE have never been legally divorced. PHYLLIS and EUGENE are still legally married according to law. This Court has interfered with PHYLLIS and EUGENE's right to a legal divorce. PHYLLIS and EUGENE have a right to be granted a legal divorce.

5. There is no statute that permits this court to assess attorney's fees and costs against EUGENE, and EUGENE did not agree to pay any of Gordon's fees and costs.

PHYLLIS has not claimed that she is unable to pay her attorney's fees and costs. Should she so claim, then PHYLLIS is required to produce evidence that she is unable to pay her attorney and that EUGENE is better able to pay her attorney. PHYLLIS is required to produce all of her financial records of income and assets to the court and appear before this Court as a witness. No such evidence has been introduced into the Court and EUGENE has not had the opportunity to question PHYLLIS under oath.

EUGENE objects to his payment of any legal fees and costs to Theodora Gordon from EUGENE.

6. Nor has any hearing on sanctions been heard by this Court, nor has this Court ruled on sanctions. Sanctions is penal in nature, and any order for sanctions must include explicit factual findings upon which sanctions can be charged.

While the English courts may award attorney fees to successful litigants, in this case PHYLLIS is not a successful litigant, since a challenge to a void judgment cannot be lawfully estopped. Board of Educ. of City of Chicago v. Box, 191 Ill.App.3d 31, 547 N.E.2d 627 (1st Dist. 1989); Klopfer v. Court of Claims, 286 Ill.App.3d 499, 676 N.E.2d 679 (1st Dist. 1987).

The Toland Appellate Court wrote "More than two centuries ago the United States Supreme Court rejected application of the English rule in the United States. The rule in this country is that attorney fees are not ordinarily recoverable in the absence of such a provision in a statute or enforceable contract. See Arcambel v. Wiseman, 3 U.S. (Dallas) 306, 1 L. Ed. 613 (1796). The American rule is based on sound policy principles. Litigation is inherently uncertain, and it would be unjust to punish litigants for exercising their right to file or defend a law suit. The poor would be discouraged from vindicating their rights, not based on the merits of their cases, but for fear of being penalized with their opponents' attorney fees. ... Thus, when confronted with a request to fashion a far- reaching exception to the American rule, the Supreme Court declined on the basis that it would be inappropriate for the judiciary, without legislative guidance, to reallocate the burdens of litigation. Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 247, 44 L. Ed. 2d. 141, 147, 95 S. Ct. 1612 (1975).

Illinois Supreme Court Rule 137 did not introduce the English rule into American law. Under the English rule, "a fee award is not a sanction" (S & H Riggers and Erectors, Inc. v OSHRC, 672 F. 2d 426, 429 (1982)), while Rule 137 expressly speaks of "a sanction" (134 Ill. 2d R. 137). See also Lewy v. Koeckritz International, Inc., 211 Ill. App. 3d 330, 334, 570 N.E.2d 361, 365 (1991) (Rule 137 is "almost identical" to Rule 11 of the Federal Rules of Civil Procedure, (Fed. R. Civ. P. 11), and Illinois courts may seek guidance from judicial interpretation of Rule 11), and Anshutz Petroleum Marketing Corp. v. E. W. Saybolt & Co., 112 F.R.D. 355, 357 (1986) (Rule 11 was not intended to have same effect as the English rule).

The purpose of Rule 137 is to prevent the filing of frivolous or false lawsuits without legal or factual foundation, not to penalize litigants and their attorneys simply because they were zealous but unsuccessful. See Elledge v. Reichert, 250 Ill. App. 3d 1055, 1059, 620 N.E.2d 543, 547 (1993). Since the rule is penal in nature, its terms must be strictly construed. In re Marriage of Adler, 208 Ill. App. 3d 469, 475, 648 N.E.2d 953, 957 (1995)." Toland, et al. v. Davis, et al., sl.op. 3-97-0373 (1998).

7. Further, the purported Fee Petition does not comport with requirements of charging fees, either to an attorney's client or to any other party. This Court has a duty to review the entire Fee Petition and to vacate all or part of it. Should this Court find errors in the Fee Petition, this Court should order Gordon to refund the erroneous charges. However, since Gordon has never filed her written appearance, she cannot lawfully appear before this Court, or any Court, in any 91-D-5122 action; therefore she has not provided any legal services and the entire Fee Petition must be dismissed and Gordon ordered to pay PHYLLIS all monies paid to Gordon.

Since EUGENE and PHYLLIS have never been lawfully divorced, EUGENE, as a spouse, has a right to protect marital assets, and demands that Gordon return to the marital assets all claims made by, and paid to, Gordon against the marital estate in the 91-D-5122 action.

8. The purported order of April 16, 1998 did not make explicit findings that the Court held subject-matter jurisdiction. In re Jennings, 68 Ill.2d 125, 368 N.E.2d 864 (1977). Without such findings in the Order, the Order is not a valid Order.

This Court, nor any Court in the 91-D-5122 proceeding or in which any aspect of the 91-D-5122 proceeding has been brought, has not declared that the Court held subject-matter jurisdiction as to all of the elements of subject-matter jurisdiction. Four judges have found that the record of the case/appeal does not contain a Petition. Under Brown v. VanKeuren, 340 Ill. 118, 122 (1930), this court is without subject-matter jurisdiction.

Even if this court held subject-matter jurisdiction, the judge lost any subject-matter jurisdiction that she may have held by her not complying with applicable statutes and law. Armstrong v. Obucino, 300 Ill. 140, 143, 133 N.E. 58 (1921) ("The doctrine that where a court has once acquired jurisdiction it has a right to decide every question which arises in the cause, and its judgment or decree, however erroneous, cannot be collaterally assailed, is only correct when the court proceeds according to the established modes governing the class to which the case belongs and does not transcend in the extent and character of its judgment or decree the law or statute which is applicable to it."). Under any situation, Judge Mathein is without subject- matter jurisdiction.

Since no judge has found that all of the elements of subject-matter jurisdiction were present in the 91-D-5122 cause, EUGENE's contentions that the 91-D-5122 court was without subject-matter jurisdiction is uncontroverted and the August 10, 1992 judgment remains void ab initio.

For the reasons stated above, and in EUGENE's other motions previously filed, any order granting any Attorney Fees and Costs to be paid by EUGENE should be dismissed

                                          Respectfully submitted,

                                          ____________________________
                                          Eugene Alpern


Eugene Alpern
P.O. Box 672
Morton Grove, IL 60053

fn2: Supreme Court Rule ("SCR") 13(c)(1) states:
Addressing the Court. An attorney shall file his written appearance ... before he addresses the court" [Emphasis added].

Local Rule 1.4 of the Circuit Court of Cook Count states:
1.4(a) Addressing the court. An attorney shall file his appearance before he addresses the court ". [Emphasis added].

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