Amoco Oil Co. v. Segall

• Decision Date: 27 October 1983
• Docket Number: No. 4-83-0222,4-83-0222
• Citation: 118 Ill.App.3d 1002,455 N.E.2d 876,74 Ill.Dec. 447
• Parties: , 74 Ill.Dec. 447 AMOCO OIL COMPANY, Plaintiff-Appellee, v. Mort A. SEGALL, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 876

455 N.E.2d 876

118 Ill.App.3d 1002, 74 Ill.Dec. 447

AMOCO OIL COMPANY, Plaintiff-Appellee, v. Mort A. SEGALL, Defendant-Appellant.

No. 4-83-0222.

Appellate Court of Illinois Fourth District.

Oct. 27, 1983.

Philip A. Summers, Summers, Watson & Kimpel, Champaign, on brief; Segall Law Offices, P.C., Champaign, for defendant-appellant.

Zimmerly, Gadau, Stout, Selin & Otto, Champaign, for plaintiff-appellee.

TRAPP, Justice:

Plaintiff filed a complaint against defendant, an attorney, to recover in excess of $11,000 in credit card charges. The trial court entered final judgment against defendant for the claimed amount as a discovery sanction and subsequently denied defendant's motion to vacate the judgment. Defendant appeals the judgment of the circuit court of Champaign County. We affirm.

On appeal defendant argues that the trial court erred (1) in denying him a protective order against plaintiff's scheduled discovery deposition; (2) by denying his motions to quash the deposition and to dismiss on the basis of accord and satisfaction; (3) by entering final judgment against him; and (4) by denying his request to recover fees for appearing at the deposition.

The lengthy chronology of this case is as follows.

On March 21, 1980, plaintiff filed complaint in this action. On April 25, defendant filed a motion to dismiss for want of security for costs alleging plaintiff was a nonresident, with notice of hearing set more than four months later on August 29, 1980.

On May 15, 1980, plaintiff filed interrogatories to be answered by defendant and a request for defendant to admit. Defendant filed an objection to the interrogatories on the basis of the pending motion to dismiss, requested a protective order, and filed notice of hearing for August 29.

On May 28, 1980, plaintiff filed a motion to strike defendant's motion to dismiss and objection to interrogatories, stating plaintiff had a certificate of authority to do business in Illinois; plaintiff set the hearing for June 5, 1980.

On June 2, 1980, defendant filed a motion to strike and vacate the notice of hearing for June 5, because plaintiff did not file notice to vacate his hearing date of August 29. This motion was withdrawn at the hearing June 5, 1980; defendant's motion was denied, his objections were overruled, and he was ordered to answer interrogatories within 28 days.

On June 23, 1980, defendant filed interrogatories to be answered by plaintiff, a request for production of plaintiff's documents, a motion to dismiss for lack of specificity, and a motion for a protective order. On July 21, 1980, plaintiff filed notice setting hearing on defendant's motions for August 7.

On August 7, 1980, defendant's motion to dismiss was allowed with leave to file an amended complaint by August 28, with defendant to answer and file interrogatories by September 15. On August 26, plaintiff's amended complaint was filed; photocopies of the credit slips and bills on defendant's account were attached. On September 15, 1980, defendant filed answers to interrogatories stating that investigation of the matter was pending, denying all charges except the sum of $455--without identifying which charges were correct and which were not--and asserting payments in excess of that amount. Defendant filed a motion to dismiss and a countercomplaint for an accounting on the same bases.

On October 8, 1980, plaintiff filed an answer to defendant's countercomplaint. Eight and one-half months later, on June 26, 1981, plaintiff filed response to defendant's request for production of documents (charge slips and bills previously attached to complaint).

On July 9, 1981, plaintiff filed response to defendant's interrogatories, again attaching copies of the documents previously made available for inspection, and notice of hearing on defendant's motion to dismiss set for August 26.

On August 26, 1981, a hearing was held before Judge Nicol. Plaintiff filed an affidavit in opposition to defendant's motion to dismiss. Defendant's motion was denied and defendant was ordered to answer or plead by September 11, 1981. On September 14, 1981, defendant filed an answer denying the allegations of the complaint.

On April 8, 1982, plaintiff filed notice to take the discovery deposition of defendant Segall on April 28. Segall did not appear at the April deposition.

On May 20, 1982, plaintiff filed a motion to compel discovery, stating defendant's counsel called on April 27 and said defendant was on vacation. A hearing date of June 22 was set. On June 22, 1982, plaintiff's motion was allowed and defendant was ordered to appear for discovery deposition on July 7, 1982. Defendant was represented at this hearing by attorney Philip A. Summers.

On July 1, 1982, defendant filed a motion for a protective order stating that defendant was a Florida resident and it would constitute an unreasonable annoyance and expense for him to come to Illinois; the motion requested the court require plaintiff to pay defendant's reasonable travel expenses or, in the alternative, modify the order of July 7, 1982, and order plaintiff to take defendant's deposition in Florida. In support, defendant filed the affidavit of Barbara Butts stating Segall was a Florida resident and it would constitute an unreasonable annoyance and expense for him to come to Illinois.

Defendant did not appear at the discovery deposition on July 7.

On August 12, 1982, plaintiff filed a motion to strike defendant's pleadings and enter judgment by default for $11,130.38, and a notice setting hearing on the motion for August 27.

On August 27, 1982, upon defendant's objections, Judge Nicol reallotted the hearing for September 10, 1982. On September 8, 1982, defendant filed a reply to the motion for judgment on the pleadings, arguing that under Supreme Court Rule 204(a)(2) (87 Ill.2d R. 204(a)(2)) defendant must be tendered expenses before his deposition; and set this reply and the motion for a protective order, filed more than two months earlier, for hearing on September 10, 1982. At the hearing the motions were taken under advisement.

On October 7, 1982, Judge Nicol entered a written order denying the motion for a protective order, entering judgment on liability for defendant's failure to comply with the discovery order, striking defendant's counterclaim and prohibiting him from filing additional counterclaims, and ordering defendant to appear for a discovery deposition as scheduled by plaintiff. The judge concluded defendant's position was ill-founded:

"2. First, [defendant's] request is untimely, coming two months after he has failed to appear for his deposition as ordered by the Court on June 22, 1982. His deposition was noticed initially by the Plaintiffs for April 28, 1982, by a notice sent to Defendant's law office and to his counsel of record on April 8, 1982. Defendant filed no Motion for Protective Order but simply failed to show up at the deposition, representing through his attorney that he was on vacation. A hearing on Plaintiff's motion to compel Defendant's attendance at his deposition was noticed for June 22, 1982, by notice mailed on May 18, 1982. Yet, Defendant filed no Motion for Protective Order prior to the hearing June 22, 1982. It is transparent that the Defendant's Motion is not only untimely, but calculated to delay the orderly progress of this case. Although he filed it on July 1, 1982, he failed to call it for hearing prior to the deposition or until two months later. The Court has no obligation to set a hearing on the motion automatically or to rule upon it sua sponte.

3. Second, because the Defendant failed to comply with the Court's order to attend his deposition on July 7, 1982, and neither obtained nor even actively sought relief from a modification of that Order, he is not entitled to the protective powers of the Court. One should not be permitted simultaneously to defy the Court and to enjoy its protection. Mere filing of a motion, followed by inaction is not sufficient.

4. Thirdly, the Defendant is not a non-resident qualified for the protection of Supreme Court Rule 203. Defendant's bald assertions of non-residency do not establish that status. Nor is it established when he claims to have become a Florida resident relative to the sequence of events in this case. The affidavit of Barbara Butts is utterly devoid of facts relevant to the substance of the issues and to the foundation necessary to demonstrate why the Court should believe that she has personal knowledge of relevant facts.

5. Finally, since the Defendant has filed a number of pleadings in this case on his own behalf showing a Champaign, Illinois address for his law office, it is patently clear that he transacts business in person or is employed in Champaign County and may properly be required to attend his deposition here. Moreover, in filing a Counter-complaint (sic) for Accounting, the Defendant has assumed the status of a Plaintiff and subjected himself to a Court's order for deposition, even if he were a non-resident.

6. In his Reply to Motion for Judgment of the Pleadings, the Defendant's attorney made reference to 'an affidavit of Defendant in support' which was 'tendered with this Motion and Brief.' No such affidavit has been filed, although the Reply itself is on file.

7. The Plaintiff has requested that Defendant's pleadings be stricken and judgment entered against him as a sanction for failing to comply with the Court's order that he attend his deposition on July 7 1982. Although such a sanction should be imposed with the greatest reluctance, the Court concludes that no other sanction would be just or adequate and that the sanction requested is compelled by the Defendant's conduct. Notwithstanding the fact that a judgment on all issues would be [an] appropriate sanction in this case, the Court is constrained to leave open the issue of the amount of damages claimed by Plaintiff, so as to afford the Defendant one final opportunity...