Hampton v. Walter Fields & PP NT 1, LLC
| Decision Date | 30 June 2015 |
| Docket Number | No. 1-14-2453,1-14-2453 |
| Citation | 2015 IL App (1st) 142453 -U |
| Parties | NIKITA HAMPTON, Plaintiff-Appellant, v. WALTER FIELDS and PP NT 1, LLC d/b/a PANEGA REAL ESTATE HOLDINGS, Defendants-Appellees. |
| Court | United States Appellate Court of Illinois |
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Cook County.
¶ 1Held: The trial court did not abuse its discretion in declining to issue a body attachment as a discovery sanction to compel the defendant's appearance.The trial court's entry of a default judgment against the defendant for his failure to appear and answer the complaint was proper.
¶ 2Plaintiff, Nikita Hampton, filed suit against the defendants, Walter Fields(Fields) and PP NT 1, LLC d/b/a Pangea Real Estate Holdings, (defendants) for negligence.After Fields failed to respond to discovery, the trial court entered a default judgment against him.Plaintifffiled a motion to reconsider which the trial court denied.The court subsequently certified three questions of law for this appeal pursuant to Supreme Court Rule 308(eff. Feb. 26, 2010).
¶ 4 The record reveals that plaintiff filed a complaint against defendants on November 20, 2013.In his complaint, plaintiff alleged that on August 31, 2013, while lawfully walking in the alley directly behind Fields' premises, he suffered injuries as a result of the defendants' negligence.Specifically, plaintiff alleged that he was attacked by six pit bull dogs owned by Fields and sheltered on the premises owned and operated by Pangea.Plaintiff alleges that the yard was negligently maintained and constructed by Pangea and not secure to hold the animals.Plaintiff requested relief in excess of $30,000 for the injuries he sustained in the alleged attack.
¶ 5 On March 11, 2014, Fields was served with a summons and complaint via personal service.Also on March 11, 2014, Fields was served with a subpoena for his deposition via personal service.The subpoena deposition of Fields was scheduled for April 28, 2014, at 1:00 p.m. at the law office of plaintiff's counsel, located at 9701 W. Higgins Road, Rosemont, Illinois.Fields never filed an appearance or answer, nor did he appear for the deposition.
¶ 6 On May 2, 2014, plaintiff filed a petition for rule to show cause against Fields.The petition requested that Fields be required to appear for his deposition.On May 7, 2014, a copy of the petition was personally served on Fields.
¶ 7 On May 8, 2014, the trial court granted plaintiff's motion for default against Fields.1On May 9, 2014, the trial court granted plaintiff's petition for rule to show cause, ordered Fields to appear in court on May 29, 2014, to explain why he failed to appear for his subpoena deposition and also instituted a fine of $100 per day commencing on May 9, 2014, against Fields.Counsel for plaintiff mailed a copy of the May 9, 2014, order to Fields via certified mail.Fields signed for the certified mail on May 16, 2014.
¶ 8 Fields failed to appear in court for the hearing on May 29, 2014.The trial court then entered the following order: "This cause coming before the Court for Plaintiff's Petition for Rule to Show Cause against Walter Fields, parties having notice and the Court being fully advised in the premises: The Court imposes a $2000.00 judgment plus $200.00 per attorney for attorneys fees against Walter Fields."The record contains no transcript of these proceedings.
¶ 9Plaintiff subsequently filed a motion for reconsideration, seeking to vacate the May 29, 2014, order.On August 1, 2014, the court denied plaintiff's motion.On that same date and in that same order, the court certified the following three questions pursuant to Supreme Court Rule 308.(Ill.S. Ct. R. 308)(eff. Feb. 26, 2010).
The record contains no transcript of the August 1 proceedings.
For the following reasons, we vacate the order granting leave to file this interlocutory appeal, affirm the default judgment in part, vacate in part and remand for further proceedings consistent with this order.
¶ 12 Prior to considering an appeal on its merits, the Appellate Court must determine if the appeal has been properly taken so as to invoke its jurisdiction.Camp v. Chicago Transit, 82 Ill. App. 3d 1107, 1109(1980).A question of whether the appellate court has jurisdiction is always open, (id. at 1109) and we may reconsider the question of our jurisdiction if our earlier ruling seems erroneous.Voss v. Lincoln Mall Management Co., 166 Ill. App. 3d 442, 451(1988).Generally, jurisdiction of the appellate court is limited to appeals from final judgments (AT & T v. Lyons and Pinner Elec. Co., Inc., 2014 IL App (2d) 130577, ¶19), except in those cases where appeals from interlocutory orders are permitted by Supreme Court Rule.See, e.g., Ill.S. Ct. Rule 308(eff. Feb. 26, 2010).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.In re Marriage of Gutman, 232 Ill.2d 145, 151(2008);Davis v. Loftus, 334 Ill. App. 3d 761, 766(2002).An interlocutory judgment is a judgment given in the middle of a cause on someplea, or proceeding, or default which is only immediate and does not finally determine or complete the suit.2 Ill. Law & Prac. Appeal and Error§87(2002).
¶ 13 Rule 308 provides a remedy of permissive appeal for interlocutory orders where the trial court has deemed that they involve a question of law as to which there is a substantial ground for difference of opinion and where an immediate appeal from the order may materially advance the ultimate termination of the litigation.AT & T v. Lyons and Pinner Elec. Co., Inc., 2014 IL App (2nd) 130577, ¶29;Ill.S. Ct. R. 308.The rule was intended to be used sparingly and is strictly construed.Camp, 82 Ill. App 2d. at 1111.The appellate court is vested with the responsibility to "insure that this authority to allow interlocutory appeals is not abused."Id.().
¶ 14 The Rule expressly provides in pertinent part:
Ill.S. Ct. 308(a).
¶ 15 Appeal in this case is here purportedly pursuant to Supreme Court Rule 308.Id.The order entered by the trial court on May 29, 2014, was for a judgment for $2,000, plus attorneys' fees, in favor of plaintiff.Plaintiff timely filed a motion for reconsideration inwhich he sought to have the May 29th judgment vacated.On August 1, 2014, the court denied plaintiff's motion.In that same order, the court certified three questions, pursuant to Supreme Court Rule 308.Prior to doing so, the court did not vacate either the May 29th judgment order, or the August 1, 2014, order denying reconsideration of that order.
¶ 16The trial court's May 29th order, which entered judgement and assessed attorney fees and its subsequent order which certified questions to this court, is somewhat confusing.We are mindful that to ascertain the nature of the trial court's order appealed from, so that the standard of review can be determined, the order must be construed in a reasonable manner, with references to other parts of the record, including the pleadings, so as to give effect to the apparent intention of the trial court.Heinrich v. Mitchell, 357 Ill. App. 3d 1017, 1021(2005)(citingAmerican Bank & Trust Co. v. Department of Revenue, 242 Ill. App. 3d 716, 720(1993)).Thus, we have reviewed the record and the substance of the trial court's orders.
¶ 17The court's May and August orders clearly indicate that a judgment is entered in favor of the plaintiff and assesses attorneys' fees against the defendant.Additionally, there is no statement in the record from the trial court indicating that the "order involves a question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation."SeeIll.S. Ct. Rule 308(a).Further, although there is no transcript of proceedings, in his brief, plaintiff indicates that the trial court, in ruling on his motion for reconsideration, suggested that the judgment would lead to a petition for rule to show cause on a citation to discover assets and then ultimately to a body attachment when Mr. Fields does not appear or respond to the citation to discover assets.We perceive the comments attributed to the court to reference those procedures which generally attend post...
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