Blott v. Hanson

• Court: Appellate Court of Illinois
• Writing for the Court: RATHJE
• Citation: Blott v. Hanson, 670 N.E.2d 345, 283 Ill.App.3d 656, 218 Ill.Dec. 848 (Ill. App. 1996)
• Decision Date: 05 September 1996
• Docket Number: No. 2-95-1533,2-95-1533
• Parties: , 218 Ill.Dec. 848 Nancy BLOTT, Plaintiff, v. John HANSON, Defendant-Appellee (Jesus Quintero, Defendant; Parrillo, Weiss and O'Halloran, Appellant).

Page 345

670 N.E.2d 345

283 Ill.App.3d 656, 218 Ill.Dec. 848

Nancy BLOTT, Plaintiff, v. John HANSON, Defendant-Appellee (Jesus Quintero, Defendant Parrillo, Weiss and O'Halloran, Appellant).

No. 2-95-1533.

Appellate Court of Illinois Second District.

Sept. 5, 1996.

Rehearing Denied Oct. 9, 1996.

Keely Truax, Parrillo, Weiss & O'Halloran, Chicago, for Parrillo, Weiss & O'Halloran, Jesus Quintero.

Vincent Robertelli, Giagnorio & Robertelli, Ltd., Bloomingdale, Robert G. Black, Naperville, for John Hanson.

Arthur S. Gomberg, Law Offices of Arthur S. Gomberg, Chicago, for Nancy Blott.

Justice RATHJE delivered the opinion of the court:

The law firm of Parrillo, Weiss and O'Halloran (law firm) appeals from an order of the circuit court of Du Page County requiring the law firm and its client, Jesus Quintero, to pay $525 in attorney fees to the attorneys for Quintero's codefendant, John Hanson (Hanson), for failure to comply with discovery. The sole issue on appeal is whether the trial court abused its discretion in assessing the attorney fees against the law firm. No issue is raised as to whether Quintero should have been required to pay attorney fees.

On March 29, 1994, plaintiff, Nancy Blott, filed a complaint against Quintero and Hanson seeking damages for injuries she received while a passenger in an automobile driven by Hanson, which allegedly was struck by an automobile driven by Quintero. On November 30, 1994, the trial court entered an order vacating all defaults and granting leave to both Quintero and Hanson to file their pleadings and written discovery within 21 days. Written discovery was to be completed by January 18, 1995, and depositions were to be completed by March 29, 1995. The matter was continued for status until April 12, 1995.

On November 30, 1994, in addition to his answer, Hanson filed a counterclaim for contribution against Quintero. Also on November 30, 1994, Hanson filed a motion to produce, interrogatories to be answered by Quintero, and a notice of deposition for Quintero for February 13, 1995. According to the certificate of service, these had previously been sent to Quintero's attorneys on November 4, 1994. On December 21, 1994, Quintero filed his answers to the complaint and Hanson's counterclaim for contribution and a counterclaim for contribution from Hanson. Quintero's counterclaim was later stricken, and an amended counterclaim for contribution was filed.

At the April 12, 1995, status hearing, counsel for Hanson filed a motion for sanctions pursuant to Supreme Court Rule 219 (134 Ill.2d R. 219) and advised the trial court that Quintero had not yet answered written discovery. The trial court entered an order requiring Quintero to answer written discovery by May 3, 1995.

On June 6, 1995, counsel for Hanson and counsel for Quintero appeared. Counsel for Hanson sought an order pursuant to Rule 219 striking Quintero's pleadings for failure to comply with written discovery. The following colloquy ensued:

"MR. PARRILLO [Quintero's counsel]: I would ask for one more opportunity to comply.

THE COURT: Why haven't you yet complied?

MR. PARRILLO: There is a language difficulty problem here with our client.

THE COURT: Did you contact him?

MR. PARRILLO: Yes.

THE COURT: In six months haven't you had an interpreter come in or a family member or a friend who could speak bilingual who could get you the information?

MR. PARRILLO: Well, we have a Spanish-speaking secretary to secure answers and documents. We have not been able to get them."

Counsel for Hanson advised the trial court that while he had no objection to continuing the case this would be the third time the case was continued for compliance with discovery. After being informed that both defendants had filed counterclaims against each other, the colloquy continued as follows:

"THE COURT: What I am going to do today is award attorney's fees for coming in here today and for one on the past Court appearance on April 12th.

I will give you until June 27th to answer the interrogatories, and I am going to enter and continue the motion for sanctions, further sanctions, under 219 to July 12th.

MR. PARRILLO: Are you entering sanctions against the defendant?

THE COURT: Against the defendant and your firm.

MR. PARRILLO: Why my firm?

THE COURT: Why sir? Because I have the power to do so. You haven't complied with discovery. You haven't provided me with a satisfactory reason for not getting the answers to interrogatories on file."

On July 12, 1995, counsel for Hanson and counsel for Quintero again appeared. Counsel for Quintero presented an affidavit in which she outlined the various efforts that the law firm made to contact Quintero. These included letters in both Spanish and English, numerous telephone calls, as well as personal visits by Metro Services, Inc., to the place where Quintero was believed to reside. The following colloquy then ensued:

"THE COURT: Miss Schmal, is there anything you wish to state about the affidavit for fees?

MS. SCHMAL [Quintero's counsel]: I do not think any of it should be directed towards our firm. * * *

As you can see from the affidavit, we have done everything we can to secure his cooperation. I would prefer that there not be fees assessed against my client as well, but that is up for the Court to decide. I realize there have been orders against my client, and he has not answered interrogatories.

THE COURT: Were these efforts ever communicated to you before?

MR. ROBERTELLI [Hanson's counsel]: No.

THE COURT: They certainly were never--

MR. ROBERTELLI: I take that back. Last time we were here, I think Mr. Parrillo made mention that there had been efforts made.

THE COURT: He didn't outline them, ma'am. He never explained to me prior to the orders being entered that you weren't able to contact your client."

The trial court found the $525 in attorney fees set forth in counsel for Hanson's affidavit to be reasonable and awarded them against Quintero and the law firm. The trial court also refused the law firm's request for a Rule 304(a) (155 Ill.2d R. 304(a)) finding.

On August 14, 1995, Hanson filed another motion pursuant to Rule 219 seeking sanctions for Quintero's refusal to answer written discovery or appear for his deposition. Hanson also filed a petition for a rule to show cause for the failure of either Quintero or his attorneys to pay the court ordered attorney fees.

On November 7, 1995, counsel for all parties appeared. The trial court rejected counsel for Quintero's argument that it should have considered the documents in support of the affidavit she presented on July 12, explaining the law firm's efforts to contact Quintero, on the basis that it had made its ruling on June 6. The trial court also rejected counsel for Quintero's argument that the fees were not payable until such time as the law firm had had an opportunity to appeal the award. After questioning counsel for Quintero, the trial court granted the motion for sanctions, ordering Quintero's counterclaim against Hanson dismissed and entering a default against Quintero on Hanson's counterclaim. The trial court also entered summary judgment in favor of Hanson and against the plaintiff. Finally, the trial court found that there was no just reason to delay enforcement or appeal of the order pursuant to Rule 304(a).

During the pendency of this appeal, Hanson filed a motion to dismiss the appeal on the basis that the orders appealed from were not final orders.

Rule 304(a) provides in pertinent part that "[i]f multiple parties or multiple claims for relief are involved in an action, an appeal may be taken from a final judgment as to one or more but fewer than all of the parties or claims only if the trial court has made an express written finding that there is no just reason for delaying either enforcement or appeal or both." 155 Ill.2d R. 304(a). An order is final and appealable if it terminates the litigation between the parties on the merits or disposes of the rights of the parties, either on the entire controversy or a separate part thereof. Viirre v. Zayre Stores, Inc., 212 Ill.App.3d 505, 512, 156 Ill.Dec. 622, 571 N.E.2d 209 (1991). A Rule 304(a) finding does not make a nonfinal order appealable; rather, the Rule 304(a) finding makes a final order appealable where there are multiple parties or claims in the same action. Viirre, 212 Ill.App.3d at 511-12, 156 Ill.Dec. 622, 571 N.E.2d 209.

In its amended notice of appeal, the law firm stated it was appealing from the trial court orders entered on June 6, July 12, and November 7, 1995. As to the June 6 and July 12 orders, Hanson correctly states that orders pertaining to discovery generally are not appealable until the conclusion of the underlying action. Krasnow v. Bender, 78 Ill.2d 42, 47, 34 Ill.Dec. 315, 397 N.E.2d 1381 (1979). However, the court went on to state that the above principle had no application in a situation in which the underlying action is settled as the only opportunity for review of the correctness of the order was by an appeal of that order. Krasnow, 78 Ill.2d at 47, 34 Ill.Dec. 315, 397 N.E.2d 1381.

Hanson's reliance on In re Marriage of Young, 244 Ill.App.3d 313, 185 Ill.Dec. 289, 614 N.E.2d 423 (1993), is misplaced. In that case, during the pendency of an action for dissolution of marriage, the trial court imposed an award of attorney fees against the husband for failing to comply with discovery. While the trial court also struck the husband's pleadings and entered a...