Klairmont v. Elmhurst Radiologists, S.C.

• Decision Date: 27 June 1990
• Docket Number: Nos. 1-88-1951,1-89-1094,s. 1-88-1951
• Parties: , 146 Ill.Dec. 365 Larry M. KLAIRMONT, Beneficiary of Elmhurst National Bank Trust Number 619, Plaintiff-Appellant, v. ELMHURST RADIOLOGISTS, S.C. and Elmhurst Radiologists/Physicians' Service Center, Inc., Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 328

558 N.E.2d 328

200 Ill.App.3d 638, 146 Ill.Dec. 365

Larry M. KLAIRMONT, Beneficiary of Elmhurst National Bank Trust Number 619, Plaintiff-Appellant, v. ELMHURST RADIOLOGISTS, S.C. and Elmhurst Radiologists/Physicians' Service Center, Inc. Defendants-Appellees.

Nos. 1-88-1951, 1-89-1094.

Appellate Court of Illinois First District, Third Division.

June 27, 1990.

Charles E. Adler, Adler & Adler, Chicago, for plaintiff-appellant.

William C. Meyers and Stephen L. Tyma, McDermott, Will & Emery, Chicago, for defendants-appellees.

Justice WHITE delivered the opinion of the court.

The parties are before the court in two separate appeals from orders of the trial court. In 88-1951, plaintiff Larry Klairmont, contends that the trial court erred in ordering him to pay costs as a sanction for discovery violations. In 89-1094, defendants Elmhurst Radiologist, S.C.; Physician's Service Center; and Gus Ombrek contend that the court erred in granting plaintiff's motion to vacate an ex parte judgment entered in their favor on a counterclaim filed against plaintiff.

FACTS

We will recite only those facts that are relevant to our decision.

1974-1981: Defendants were the lessees of office space in a building located at 110 East Schiller Street in Elmhurst, Illinois. Defendants vacated the building in November 1981.

December 1982: Plaintiff filed a two count complaint against defendants alleging that they removed fixtures and caused extensive damage to the building and its electrical system. Count I of the complaint sought recovery against Elmhurst Radiologists, while Count II sought recovery against "Gus Ormbrek d/b/a Elmhurst Radiologist/Physicians' Service Center, Inc." The suit was filed in plaintiff's name and the leases attached to the complaint revealed that the lessors of the property were plaintiff and the Imperial Realty Company, acting as agents for unnamed beneficiaries of a land trust.

February 1983: Defendants filed an answer denying plaintiff's allegations and alleging that the complaint failed to state a claim upon which relief could be granted. Defendants also filed a counterclaim for recovery of its $250 security deposit.

April 1984: Defendants filed a notice of deposition requesting the appearance of plaintiff on May 17, 1984. Defendants also filed a request for production of documents.

In the request defendants sought (1) all files maintained by plaintiff concerning defendants; (2) all files concerning the leased premises; (3) all correspondence regarding defendants and the building; (4) receipts for the purchase of all items which plaintiff claimed were wrongfully removed from the premises by defendants; (5) receipts for the repair of damage caused by defendants; (6) all records for any work done to the electrical system; (7) all reports of state, local, or federal building inspectors concerning the premises; and (8) all documents on which plaintiff planned to rely to establish the alleged damages.

May 1984: Plaintiff filed objections to paragraphs (2), (3), (6), and (7) of defendants' request for production arguing that they were too broad and sought irrelevant material. No objections were made to paragraphs (1), (4), (5), and (8), however, the documents requested in those paragraphs were not produced.

September 1986: Defendants filed a motion to compel discovery and requesting sanctions for plaintiff's failure to comply with defendants' April 1984 discovery requests. An agreed order was entered requiring plaintiff to produce before September 22 all documents sought by defendants' to which no objections had been made. The order also required plaintiff to appear for his deposition "no sooner than October 3, 1986 or at such other time as the parties may hereafter agree."

October 1986: Defendants renewed their motion to compel alleging that plaintiff had failed to produce any documents relating to the damage that plaintiff claimed defendants caused to the building. Defendants also alleged that plaintiff's attorney had not replied to defendants' requests for a written response confirming or denying the existence of such documents.

On October 27 the trial court entered an order requiring plaintiff to file an affidavit November 7, 1986: The affidavits of Alfred Klairmont, plaintiff's son, and Robert Roth, one of plaintiff's attorneys, were filed with the court. Alfred Klairmont stated in his affidavit that plaintiff had searched his files for those documents covered by defendants' request for production and not objected to by plaintiff and that all such documents had been turned over to his attorneys. Klairmont's affidavit also stated that he was a duly authorized agent of plaintiff, that the statements in the affidavit were based on his personal knowledge, and that he was competent to testify concerning the statements. Roth's affidavit stated that copies of all documents received from plaintiff had been turned over to defendants' attorneys.

[146 Ill.Dec. 367] of full compliance with defendants' request to produce.

April 10, 1987: Defendants filed a motion to dismiss plaintiff's complaint for failure to allege facts establishing plaintiff's standing to sue on behalf of the owners of the property in question.

June 1987: Defendants' motion to dismiss was granted. On June 29, plaintiff filed an amended complaint again suing in his own name as agent for unnamed beneficiaries of a land trust.

July 1987: Defendants filed a three count counterclaim against plaintiff seeking the return of their security deposit and alleging that plaintiff had failed to maintain the premises as required by the terms of the lease and had breached the terms of the lease by filing suit against Gus Ombrek in his individual capacity.

On July 22, defendants presented a motion for sanctions alleging that plaintiff, Alfred Klairmont, and one of plaintiff's employees had repeatedly failed to appear for their depositions. In response, the trial court ordered the depositions to be taken in court on July 28, 29, and 30.

On July 28, plaintiff failed to appear in court for his deposition and his attorney informed the court that he had been advised that plaintiff was in California for the birth of a grandchild. The court entered an order requiring plaintiff to appear the next day to explain his absence.

On July 29, plaintiff again failed to appear and plaintiff's attorney presented an affidavit in which plaintiff indicated that he failed to appear the previous day because he had chosen to attend a board meeting in Highland Park. The trial court entered an order requiring plaintiff to appear before the court for his deposition on the following day, and reserving defendant's right to pursue sanctions for plaintiff's failure to appear as ordered on July 28. The plaintiff and Alfred Klairmont appeared for their depositions on July 30.

August 20, 1987: Defendants filed a motion to dismiss the amended complaint, a motion for judgment on the pleadings, and a motion to show cause and for sanctions. In the motion to show cause and for sanctions, defendants requested an award of attorney fees against plaintiff and his attorneys for various discovery violations including plaintiff's failure to appear for his deposition and the filing of perjurous affidavits.

Defendants' claim that plaintiff filed perjurous affidavits was based upon Alfred Klairmont's deposition testimony that he possessed receipts and invoices for repairs made after defendants vacated the building. Defendants pointed out that in response to its request for documents relating to plaintiff's allegations of damage, Alfred Klairmont and one of plaintiff's attorneys filed affidavits stating that all documents requested by defendants had been produced.

In their motion to dismiss the amended complaint, defendants again asserted that plaintiff had failed to plead his authority to bring suit in his own name.

November 2, 1987: Defendants' motions for judgment on the pleadings in favor of Gus Ormbrek and for dismissal of plaintiff's complaint for failure to state a claim were granted. Plaintiff was given until November 30 to file a second amended complaint; however plaintiff did not file a second amended complaint within the time given.

February 1988: Plaintiff filed a motion seeking leave to file a second amended March 21, 1988: The trial court entered an order granting defendants' motion to show cause and for sanctions "for the reasons stated in Defendant's Motion." The court awarded defendant $2,871.70 in costs and fees to be paid by plaintiff and his attorneys.

[146 Ill.Dec. 368] complaint. This complaint, like the previous ones, was filed in plaintiff's name as agent for unnamed beneficiaries of a land trust.

June 1988: Plaintiff was denied leave to file his second amended complaint because it did not comply with the November 2 order. Plaintiff was given until June 27 to file a motion seeking leave to file a revised amended complaint. Leave to file was granted and on July 5, 1988 a complaint naming plaintiff as the beneficiary of the land trust was filed.

October 1988: On October 25, the Chicago Daily Law Bulletin listed the case in the trial call for October 26. Defendants appeared in court on October 26. Plaintiff did not appear. The trial court entered an order dismissing the complaint for want of prosecution, granting a default judgment on defendants' counterclaim, and scheduling a prove-up on November 4. That same day, defendants mailed plaintiff a copy of the court's order.

November 1988: Plaintiff failed to appear for the November 4 prove-up. The court entered judgment in favor of defendants and awarded damages on defendants' counterclaim in the amount of $65,919.80.

On November 22, plaintiff filed a motion to vacate the dismissal for want of prosecution entered on October 26.

December 1988: On December 21, in their response in opposition to plaintiff's motion to vacate, defendants argued that the motion sought to vacate only the October 26...