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                               Appellate Court                            Date: 2018.02.07
                                                                          13:46:01 -06'00'




                  Ivancicts v. Griffith, 2017 IL App (4th) 170028



Appellate Court   DAWN IVANCICTS, Plaintiff-Appellee, v. MICKEY GRIFFITH,
Caption           Defendant-Appellant.



District & No.    Fourth District
                  Docket No. 4-17-0028



Filed             November 21, 2017



Decision Under    Appeal from the Circuit Court of Livingston County, No. 2016-OP-1;
Review            the Hon. Robert M. Travers, Judge, presiding.



Judgment          Affirmed.


Counsel on        Kevin C. Sanborn and Brendan D. Bukalski, of Johnson Law Group,
Appeal            LLC, of Bloomington, for appellant.

                  Vincent A. Tessitore, of Lindell & Tessitore, P.C., of Naperville, for
                  appellee.



Panel             JUSTICE STEIGMANN delivered the judgment of the court, with
                  opinion.
                  Justices Harris and DeArmond concurred in the judgment and
                  opinion.
                                             OPINION

¶1       In January 2016, petitioner, Dawn Ivancicts, filed a petition for a stalking no contact
     order against respondent, Mickey Griffith, pursuant to the Stalking No Contact Order Act
     (Act) (740 ILCS 21/1 et seq. (West 2016)). In September 2016, the trial court entered a
     plenary stalking no contact order against Griffith. In October 2016, Griffith filed a motion to
     vacate judgment, arguing that the unclean-hands doctrine should have barred the court from
     entering the order. The trial court declined to apply the unclean-hands doctrine and denied
     Griffith’s motion to vacate judgment.
¶2       On appeal, Griffith argues that (1) the doctrine of unclean hands applies to petitions
     brought pursuant to the Act and (2) the trial court erred by failing to apply the unclean-hands
     doctrine in his case. We conclude that (1) the doctrine of unclean hands does not apply to the
     Act and, even if it did, (2) the trial court properly rejected its application on this record.

¶3                                          I. BACKGROUND
¶4        This case involves a dispute between two neighbors. In January 2016, Dawn filed a
     verified petition for a stalking no contact order against Griffith. The trial court denied
     Dawn’s request for an emergency order and set the petition for a plenary hearing.
¶5        In July and September 2016, the trial court conducted hearings on the petition. Dawn’s
     husband, Jeff Ivancicts, testified that Dawn and he were neighbors with Griffith and that
     Griffith had an easement over their property. Jeff stated that they got along well with Griffith
     until a lawsuit involving Griffith and the easement was filed in 2014. Thereafter, Griffith
     yelled obscenities at Dawn and mocked her on multiple occasions. Specifically, Jeff testified
     about an incident in September 2015 when he and Dawn were outside their home and
     Griffith yelled at Dawn that she was “a f*** fat b***” and Griffith then made cow or pig
     sounds to emphasize the point. He also then accused her of being involved in killing her
     mother-in-law. Griffith has also turned his stereo up to loudly play music and then pointed it
     at the residence of Jeff and Dawn.
¶6        Jeff testified that Griffith repeatedly engaged in yelling, playing his music very loud, and
     swearing at Dawn. Jeff said that during these incidents Griffith sounded intoxicated and acted
     intoxicated.
¶7        Jeff also testified about an incident in April 2015. When after he returned from work one
     evening, he and Dawn saw Griffith walking in front of their house. Griffith yelled at them
     that he was going to bulldoze their garage, bulldoze their shed, and was going to own their
     property. He also yelled that Dawn “was a b***,” and he again yelled that Dawn let her
     mother-in-law die.
¶8        Jeff emphasized that Griffith’s mistreatment of Dawn “happens every day or every other
     day; it’s continuous.” He said it has reached the point where Dawn will not go out of the
     house until Jeff gets home from work because she is afraid of Griffith, who was now at his
     home during the day. Jeff explained that Dawn has “been a nervous wreck” and is “on
     medication for her nerves. She’s constantly crying and upset.”
¶9        Dawn testified, essentially corroborating Jeff’s testimony. She said that Griffith had
     yelled obscenities at her on multiple occasions during 2015 and 2016. One of the insults that
     Griffith yelled at Dawn is that she killed her mother-in-law for money. She also testified that

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       in April 2016, she discovered Griffith looking through her kitchen window as Dawn sat
       down to eat. Griffith’s conduct has caused her severe emotional and physical distress and has
       altered her daily routine. She said he has constantly called her names—like “baboon” and
       “you’re a fat ugly b***”—and then he would bring his chair out to a place on his property
       where he could sit and stare at her. Dawn testified that Griffith’s conduct has created stress
       for her and required her to take medication under a doctor’s care.
¶ 10        Griffith testified and acknowledged that he has yelled at Dawn and did accelerate his
       vehicle quickly outside her home. He complained that Dawn constantly video-recorded him
       with her cell phone and that she had video cameras pointed at the easement. Griffith also
       testified that Dawn constantly blocked the easement and that they were currently involved in
       litigation over it. Griffith argued that his actions were a justified response to Dawn’s
       provocations.
¶ 11        During closing arguments, Dawn argued that she was a victim of stalking and sought
       imposition of a two-year stalking no contact order as well as attorney fees. Griffith argued
       that both parties engaged in routine harassment of each other and asked the court to deny
       imposition of the stalking no contact order. Griffith argued that the Act was not designed to
       protect stalking victims who had also engaged in misconduct.
¶ 12        At the conclusion of the September 2016 hearing, the trial court granted Dawn’s petition
       for a stalking no contact order against Griffith. The court found that Dawn had been the
       victim of stalking and that she had suffered emotional distress as a result. The court
       explained its ruling, in pertinent part, as follows:
                “[W]e have overwhelming proof here that certain incidents *** have occurred, that
                they have certainly caused emotional distress, that they did not happen for any good
                reason other than just pure meanness; and we’ve been talking about them for an
                extended period of time.
                    ***
                    *** And I am finding, and this is not a difficult finding, that the petitioner is the
                victim of two of or more acts of threatening or monitoring and that this has been done
                by the respondent on a regular basis for about the last year and a half to two years.
                    Moreover, the [c]ourt has every reason to believe the conduct will continue unless
                prohibited by a stalking no contact order. I’m sure no one in this courtroom would
                want to bet that, if I let these people out of this courtroom without any restrictions on
                their activity, that they wouldn’t be at each other’s throats tonight. So, no question
                that this would continue if in fact no relief was granted.
                    As I suggested, it has caused emotional distress. We’ve heard that testimony
                offered; it’s certainly credible.
                    *** I find that [Dawn’s] reactions are not the reactions of an unreasonable person.
                I believe that she is acting reasonabl[y] in reacting the way that she has to these
                particular events.
                    I’m not going to go over the individual events, the name-calling. I mean, there’s
                adequate proof of that. As a matter of fact, there’s been enough incidents admitted
                that we don’t need to go into it. And we aren’t talking about minor exchanges.”
¶ 13        The trial court ordered that the stalking no contact order would be for two years and that
       it could be extended past that period.

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¶ 14       In October 2016, Griffith filed a motion to vacate judgment under section 2-1203 of the
       Code of Civil Procedure (Code) (735 ILCS 5/2-1203 (West 2016)), arguing that the
       unclean-hands doctrine should have barred the court from entering the order. Griffith
       asserted that under that doctrine, a party must have clean hands to obtain relief. In that
       motion, Griffith argued the following:
               “[I]t defies all principals [sic] of law that a person who caused the action should
               benefit from the action or be allowed to be protected by a no contact order. As
               pointed out in other areas of law under either the [u]nclean [h]ands doctrine or
               [s]elf-defense theory[,] a person cannot be held liable due to the wrongdoing of
               another. Respondent likewise should not be held responsible due to the harassment he
               suffered from [p]etitioner that caused the actions the Court found to qualify for
               granting [p]etitioner’s request for a [s]talking [n]o [c]ontact [o]rder.”
¶ 15       In November 2016, the trial court conducted a hearing on Griffith’s motion to vacate
       judgment and denied it. The court determined that there was a basis for the order and
       declined to apply the unclean-hands doctrine, explaining as follows:
               “[W]hat happens if I don’t enter a stalking no-contact order here? I just say, you
               know what, a plague on both your houses, you’re both at fault here, I’m not going to
               do anything to help you. So, what do we read about the next week? Dead people,
               okay, crimes, unhappy people. It doesn’t take a lot of imagination to figure out what’s
               going to happen if the Court says I’m not going to do anything, you can just go ahead
               and provoke each other, you know, without limit until you get to the point where
               there’s a real crime that they’re going to prosecute you on. No, that would be even
               more ridiculous for the Court to engage in than if I simply said, well, you’ve got to be
               perfect before I can provide any protection. And if we look at what I think this Act
               was designed for[,] *** it just makes even less sense.
                                                      ***
                   But the crux of it is at this particular point, there is a basis for entry of the stalking
               no contact order. It’s well supported by the facts in this particular matter. The
               testimony was ample in relation to *** the findings of the court; and the motion to
               reconsider is denied.”
¶ 16       After denying Griffith’s motion to vacate judgment, the trial court granted Dawn’s
       petition for attorney fees and awarded her $3500. This appeal followed.

¶ 17                                            II. ANALYSIS
¶ 18        Griffith argues that (1) the doctrine of unclean hands applies to petitions brought pursuant
       to the Act and (2) the trial court erred by failing to apply the unclean-hands doctrine in his
       case. We conclude that (1) the unclean-hands doctrine does not apply to the Act and, even if
       it did, (2) the trial court properly rejected its application on the record before us.

¶ 19                                        A. Unclean Hands
¶ 20       Griffith argues that the doctrine of unclean hands applies to petitions brought pursuant to
       the Act. We disagree.
¶ 21       The Act is silent as to whether the doctrine of unclean hands applies (see 740 ILCS 21/1
       (West 2016)), although we note that section 30(a) of the Act provides that proceedings to

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       obtain, modify, or appeal a stalking no contact order “shall be governed by the rules of civil
       procedure of this State.” 740 ILCS 21/30(a) (West 2016). Section 2-613 of the Code provides
       that defendants may plead as many defenses or counterclaims as they are entitled to under
       law. 735 ILCS 5/2-613(a) (West 2016). One such defense under Illinois law is the equitable
       defense of unclean hands. See Gambino v. Boulevard Mortgage Corp., 398 Ill. App. 3d 21,
       60, 922 N.E.2d 380, 416-17 (2009). The doctrine of unclean hands bars equitable relief, such
       as an injunction, when the plaintiff is guilty of misconduct in connection with the subject
       matter of the litigation. Id. Thus, Griffith argues that a supposed victim of stalking with
       unclean hands, as he contends is the situation in this case, should not be eligible to receive a
       stalking no contact order. We disagree because we conclude that all alleged victims of
       stalking should be eligible to receive a stalking no contact order.
¶ 22       Section 5 of the Act explicitly states that one of its purposes is that “[a]ll stalking victims
       should be able to seek a civil remedy requiring the offenders stay away from the victims and
       third parties.” 740 ILCS 21/5 (West 2016). Section 10 of the Act defines stalking as
       “engaging in a course of conduct directed at a specific person, and he or she knows or should
       know that this course of conduct would cause a reasonable person to fear for his or her safety
       or the safety of a third person or suffer emotional distress.” 740 ILCS 21/10 (West 2016).
       Section 80(a) provides that “[i]f the court finds that the petitioner has been a victim of
       stalking, a stalking no contact order shall issue” (emphasis added). 740 ILCS 21/80(a) (West
       2016). The Act contains no requirement or even a suggestion that a victim of stalking must
       have “clean hands” to receive a stalking no contact order, providing instead that all stalking
       victims are entitled to no contact orders. We conclude that the purpose of the Act is therefore
       to protect all stalking victims, not just “innocent” victims.
¶ 23       This interpretation of the Act is consistent with our view that one of the Act’s goals is to
       protect victims of stalking who are otherwise not protected by other civil and criminal laws.
       For example, the Illinois Domestic Violence Act of 1986 allows for the issuance of a civil
       order of protection for persons in a dangerous dating or familial relationship (see 750 ILCS
       60/201(a) (West 2016)), and section 213 of the Civil No Contact Order Act provides that
       civil no contact orders are also available for victims of sexual assault. See 740 ILCS 22/213
       (West 2016). However, these specialized laws do not protect all victims of stalking.
¶ 24       Before the Act’s enactment, the criminal definition of stalking was narrow and often
       would not apply unless direct threats were made to the victim. See 720 ILCS 5/12-7.3 (West
       2008). The Legislature enacted the Act to address these shortcomings. See 740 ILCS 21/5
       (West 2016); see also Lori G. Levin, Stalking No Contact Order Act, The Catalyst (Standing
       Comm. on Women & the Law, Ill. State Bar Ass’n, Springfield, Ill.), Nov. 2011, at 9. The
       Act’s goal of protecting all stalking victims would be thwarted if the conduct of the alleged
       victim were a justification for denying protection.
¶ 25       In support of this conclusion, we note that the unclean-hands doctrine has generally not
       been favored by the courts. As explained by the First District Appellate Court in Jaffe
       Commercial Finance Co. v. Harris, 119 Ill. App. 3d 136, 140, 456 N.E.2d 224, 228 (1983),
               “[t]raditionally, the unclean[-]hands doctrine has not been favored by the courts, for it
               is not a judicial straightjacket intended to prevent equity from doing complete justice.
               [Citations.] Furthermore, Illinois decisional law provides that the misconduct on the
               part of a plaintiff which will defeat recovery in a court of equity under this rule must


                                                    -5-
               have been fraud or bad faith directed toward the defendant in the very transaction
               being considered.” (Internal quotation marks omitted.)
       The Fifth District Appellate Court reached a similar conclusion three years after Jaffe when,
       in Paul L. Pratt, P.C. v. Blunt, 140 Ill. App. 3d 512, 521-22, 488 N.E.2d 1062, 1069 (1986),
       that court wrote the following:
               “In Illinois, misconduct on the part of a plaintiff that will defeat recovery in a court of
               equity under the doctrine of unclean hands must have been conduct in connection
               with the very transaction being considered or complained of and must have been
               misconduct, fraud[,] or bad faith toward the defendant making the contention.
               [Citation.] The doctrine is not a judicial strait-jacket that will prevent a court of equity
               from doing justice and its application is not favored by the courts.”
       See also La Salle National Bank v. 53rd-Ellis Currency Exchange, Inc., 249 Ill. App. 3d 415,
       437, 618 N.E.2d 1103, 1119 (1993) (citing Jaffe favorably and holding that “[t]he invocation
       of the doctrine of unclean hands is within the trial court’s discretion[,] and its application has
       not been favored by the courts”); Zahl v. Krupa, 365 Ill. App. 3d 653, 658, 850 N.E.2d 304,
       310 (2006) (Second District Appellate Court held that the doctrine of clean hands applies if a
       party seeking equitable relief “is guilty of misconduct, fraud, or bad faith toward the party
       against whom relief is sought and if that misconduct is connected with the transaction at
       issue in the litigation”). More recently in Gambino, the First District Appellate Court
       reiterated that for the unclean-hands doctrine to apply, “the party’s misconduct must rise to
       the level of fraud or bad faith.” Gambino, 398 Ill. App. 3d at 60, 922 N.E.2d at 417 (2009).
¶ 26       For the reasons stated, we conclude that the unclean-hands doctrine is unavailable as a
       defense to a petition for a stalking no contact order brought pursuant to the Act.

¶ 27                                          B. This Case
¶ 28        Even if the unclean-hands doctrine applied to petitions brought pursuant to the Act, the
       trial court properly rejected its application on this record. As the First District Appellate
       Court held in Jaffe and La Salle National Bank, two cases cited earlier, the application of the
       unclean-hands doctrine lies within the sound discretion of the trial court. Jaffe, 119 Ill. App.
       3d at 140, 456 N.E.2d at 228; La Salle National Bank, 249 Ill. App. 3d at 437, 618 N.E.2d at
       1119. See also Eichmann v. National Hospital & Health Care Services, Inc., 308 Ill. App. 3d
       337, 341, 719 N.E.2d 1141, 1145 (1999) (“[i]t is within the sound discretion of the trial court
       whether to apply the doctrine of unclean hands”); Mascenic v. Anderson, 53 Ill. App. 3d 971,
       972, 369 N.E.2d 172, 173 (1977) (“[t]he ‘clean hands’ doctrine is not a judicial
       straightjacket, is not favored by the courts, is not intended to prevent equity from doing
       complete justice, and its application is a matter for the sound discretion of the trial court”).
       This court cited Mascenic approvingly and adopted the above quote from that case in Key v.
       Key, 111 Ill. App. 3d 151, 158, 443 N.E.2d 812, 817 (1982).
¶ 29        Thus, even if the unclean-hands doctrine applied to the proceedings in this case, the
       record compellingly demonstrates that the trial court both considered that doctrine and
       rejected it. We earlier quoted a portion of what the trial court said in rejecting Griffith’s
       motion to vacate judgment, in which the court explained why it would not apply the
       unclean-hands doctrine, and we deem the trial court’s reasoning very sound, far short of
       anything that could constitute an abuse of its discretion.


                                                    -6-
¶ 30                                   III. CONCLUSION
¶ 31   For the reasons stated, we affirm the trial court’s judgment.

¶ 32   Affirmed.




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