Dolan v. O'Callaghan

Decision Date28 September 2012
Docket NumberDocket Nos. 1–11–1505,1–12–0918.
Citation979 N.E.2d 383
Parties Alice E. DOLAN and Joel F. Handler, Plaintiffs–Appellees, v. Joseph Michael O'CALLAGHAN, Defendant–Appellant (Alice E. Dolan, Plaintiff, Joseph Michael O'Callaghan, P.C., n/k/a West Monroe Law Office, P.C., Defendant).
CourtUnited States Appellate Court of Illinois

Robert G. Grossman, of Chicago, for appellant.

Joel F. Handler, of Chicago, for appellees.

OPINION

Justice PALMER delivered the judgment of the court, with opinion.

¶ 1 Appellant, Joseph Michael O'Callaghan, appeals from three orders entered by the circuit court of Cook County. The first order, entered on February 11, 2010, granted plaintiff Alice Dolan sanctions against O'Callaghan pursuant to Illinois Supreme Court Rule 219 (eff. July 1, 2002) for refusing to answer certain questions at his deposition and specifically required O'Callaghan to pay the attorney fees Dolan's counsel incurred in connection with preparing the motion for sanctions. The second order, dated July 6, 2010, entered a specific amount of attorney fees on the court's February 11, 2010, order and required O'Callaghan to pay attorney fees in the amount of $4,781.25. The third order, entered on May 2, 2011, entered additional sanctions against O'Callaghan pursuant to Supreme Court Rule 219 for refusing to answer certain questions at his deposition and specifically required O'Callaghan to pay additional attorney fees in the amount of $4,165.

¶ 2 On appeal, O'Callaghan challenges the propriety of all three orders. In addition, O'Callaghan and Dolan have each filed a motion which was taken with the case. O'Callaghan filed a "dispositive motion pursuant to Rule 361(2)(H)" requesting an order vacating the circuit court's orders as void for lack of personal jurisdiction without the necessity of briefing all of the issues involved in this case. Dolan filed a motion to dismiss the appeal for lack of jurisdiction.

¶ 3 For the reasons that follow, we deny Dolan's motion to dismiss and O'Callaghan's motion to vacate and we affirm the judgment of the circuit court of Cook County.

¶ 4 BACKGROUND

¶ 5 The circuit court's orders imposing sanctions against O'Callaghan arise from an underlying lawsuit between Dolan and defendant, Joseph Michael O'Callaghan, P.C., now known as West Monroe Law Office, P.C. (hereinafter, defendant). Dolan's original and amended complaint asserted a claim for breach of contract against defendant and Joseph Michael O'Callaghan individually. Those complaints alleged that Dolan, an attorney, worked as an associate for defendant from 1981 to 1984. In 1982, Dolan and O'Callaghan memorialized an agreement in an office memorandum in which Dolan agreed to accept a percentage of all fees of defendant in lieu of a salary. The complaint alleged that O'Callaghan ultimately breached that agreement. Dolan's amended complaint was dismissed by the circuit court of Cook County pursuant to section 2–619 of the Code of Civil Procedure ( 735 ILCS 5/2–619 (West 1992) ). However, this court reversed that judgment. See Dolan v. O'Callaghan, No. 1–95–0438, 279 Ill.App.3d 1095, 233 Ill.Dec. 714, 701 N.E.2d 564 (1996) (unpublished order pursuant to Supreme Court Rule 23 ). As part of discovery in that case, O'Callaghan was deposed in October of 1997 and February of 1999.

¶ 6 In 2000, the circuit court entered summary judgment in O'Callaghan's favor and dismissed him individually from the lawsuit. Dolan voluntarily dismissed the lawsuit on a later date and subsequently filed a second amended complaint against defendant, asserting claims for breach of contract and fiduciary duty. This complaint did not name O'Callaghan as an individual defendant.

¶ 7 The record indicates that O'Callaghan was deposed as a witness on October 9, 2006.1 On August 20, 2007, the circuit court entered an order requiring O'Callaghan to again appear for his deposition by September 28, 2007, and ordering him to "produce the requested documents."

¶ 8 On January 9, 2008, Dolan filed a motion "to compel production of documents and to resume deposition of Joseph Michael O'Callaghan." That motion stated that despite the court's order that O'Callaghan appear for his deposition by September 28, 2007, the deposition did not resume until October 26, 2007. During the resumed deposition, O'Callaghan did not produce all of the requested documents and also refused to answer certain questions regarding O'Callaghan's new law firm, O'Callaghan & Colleagues, P.C. (Colleagues, P.C.). The motion alleged that during the deposition, O'Callaghan took an "exorbitant amount of time" answering certain questions and that his attorney would not let counsel for Dolan complete the deposition. Dolan requested that O'Callaghan's deposition be resumed because information was needed on Colleagues, P.C., which Dolan believed was related to the firm Joseph Michael O'Callaghan, P.C., now known as West Monroe Law Office, P.C., and into which Dolan believed that O'Callaghan had transferred whatever assets existed in West Monroe Law Office, P.C. The motion alleged that Dolan's attorney had contacted O'Callaghan's attorney to request that O'Callaghan's deposition be reopened and that O'Callaghan's attorney indicated that O'Callaghan would not voluntarily appear to resume his deposition. The motion requested that defendant produce specific financial records of Colleagues, P.C., and documents concerning O'Callaghan's dealings with Dolan. The motion claimed that O'Callaghan had given inconsistent responses in his depositions on October 9, 2006, and on October 26, 2007, as to whether defendant maintained a personnel file on Dolan. The motion also claimed that whether O'Callaghan was a party to the case was irrelevant because he was defendant's president and majority shareholder and maintained all of the documents being sought by Dolan. The motion further claimed that O'Callaghan's deposition had to be reopened due to statements made during the deposition of "Edward Fitzsimons," who owned one share of Joseph Michael O'Callaghan, P.C. Fitzsimons allegedly produced relevant documents at his deposition and testified that he sent those documents to O'Callaghan prior to his deposition. Attached to the motion were excerpts from O'Callaghan's October 26, 2007, deposition in which he refused to answer questions regarding Colleagues, P.C., on the basis of relevancy and because he was not an individual party to the lawsuit. Also attached were records from the Illinois Secretary of State indicating that defendant and Colleagues, P.C., occupied the same location and had the same president and agent, Joseph Michael O'Callaghan.

¶ 9 Defendant responded to the motion to compel and to resume O'Callaghan's deposition by asserting that the circuit court previously allowed Dolan to depose O'Callaghan and that the deposition commenced on October 9, 2006, for approximately one hour. The deposition was continued but Dolan's counsel failed to attend that session. The deposition was then continued on October 26, 2007, and proceeded for approximately two hours. Defendant claimed that Dolan had twice the amount of time allotted by the supreme court rules to depose O'Callaghan and that Dolan should not be allowed additional time to continue to depose O'Callaghan, who was only a witness and not a party to the lawsuit.

¶ 10 On May 5, 2008, the circuit court set a hearing date on Dolan's motion to compel. However, there is no transcript of that hearing contained in the record on appeal. Nevertheless, on July 3, 2008, the court entered an order granting the motion to compel. The court ordered defendant to tender the requested documents to O'Callaghan's attorney for purposes of removing privileged documents and to thereafter allow Dolan's counsel to inspect the documents. The court further order O'Callaghan to appear to resume and complete his deposition so that he could be questioned on the following subjects: (1) the documents produced pursuant to the court's order; (2) documents concerning defendant's clients at the time Dolan was employed by it; (3) documents produced at the deposition of Edward Fitzsimons; (4) information concerning Colleagues, P.C.; and (5) defendant's income tax records for specified years. The order finally provided that O'Callaghan's deposition would proceed for two hours.

¶ 11 On March 30, 2009, Dolan filed a motion to compel and for sanctions against defendant based upon defendant's failure to produce, among other things, documents relating to Colleagues, P.C. Dolan claimed that pursuant to the court's July 3, 2008, order, she needed these documents in order to question O'Callaghan about them at his resumed deposition. On July 20, 2009, the circuit court entered an order requiring defendant to produce certain documents requested by Dolan. On August 6, 2009, O'Callaghan submitted an affidavit attesting that he was defendant's president, that he had searched defendant's records and that defendant had either previously produced the requested documents or was unable to locate certain documents.

¶ 12 On August 12, 2009, the court ordered defendant to submit another affidavit indicating that O'Callaghan & Colleagues never received money from persons or entities who were defendant's clients during the fiscal years of 1982 and 1983 and to identify all bank accounts into which defendant deposited money from cases in 1982 and 1983. The court also ordered O'Callaghan to appear by October 8, 2009, to resume his deposition. In response to the court's order, O'Callaghan submitted an affidavit attesting that O'Callaghan & Colleagues did not exist in 1982 and 1983 and therefore did not receive money from clients of the corporation formerly known as Joseph Michael O'Callaghan, P.C. He also stated that there were no records that identified the bank accounts into which funds from clients of defendant were deposited during 1982 and 1983.

¶ 13 On November 4, 2009, Dolan filed a motion for sanctions...

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