Harris v. Harris

• Decision Date: 04 April 1990
• Docket Number: No. 1-88-2500,1-88-2500
• Citation: 555 N.E.2d 10,196 Ill.App.3d 815,144 Ill.Dec. 113
• Parties: , 144 Ill.Dec. 113 Diane HARRIS, Petitioner-Appellant, v. Richard HARRIS, Respondent (Seymour Regal & Cohen, Raizes & Regal, Appellee).
• Court: United States Appellate Court of Illinois

Page 10

555 N.E.2d 10

196 Ill.App.3d 815, 144 Ill.Dec. 113

Diane HARRIS, Petitioner-Appellant, v. Richard HARRIS, Respondent (Seymour Regal & Cohen, Raizes &amp Regal, Appellee).

No. 1-88-2500.

Appellate Court of Illinois First District, Third Division.

April 4, 1990.

Michael S. Schiffman & James F. Driscoll, of Driscoll & Driscoll, Schaumburg, for petitioner-appellant.

Gerald D. Chiss, Elliott D. Hartstein, of Cohon, Raizes & Regal, Chicago, for appellee.

Justice FREEMAN delivered the opinion of the court:

Petitioner, Diane Harris, appeals an order of the trial court striking her pleadings and entering a judgment of default. Ill.Rev.Stat.1987, ch. 110A, par. 219(c).

In 1980, petitioner retained Seymour Regal and the law firm of Cohen, Raizes & Regal to represent her in a dissolution of marriage. In 1985, petitioner retained new counsel. Shortly thereafter, Regal filed a petition for attorney fees and costs.

On December 22, 1986 Regal filed a Notice of Deposition, scheduling petitioner's discovery deposition for January 6, 1987, and requesting the production of certain documents on or before January 2. Petitioner's attorney (Driscoll) advised Regal that January 6 was not a convenient date, and agreed to provide him with an alternative. The fee petition hearing was scheduled for February 4, 1987.

In compliance with Supreme Court Rule 201(k) (107 Ill.2d R. 201(k)), on January 16, Regal wrote a letter to petitioner's attorney, reminding him of the hearing date and of the fact that he was to contact him with an alternate date for the deposition. Regal sent a second letter on February 5, wherein he informed petitioner that the hearing had been continued to April 7 and that petitioner had still not contacted him to reschedule the deposition.

By agreement of the parties, the deposition was rescheduled for March 18; however, according to Regal, petitioner had not agreed to produce the documents. On March 11, Regal filed a motion to compel production of documents. Contrary to Regal's statement in his brief, petitioner filed a response to the motion.

In response to the motion, the court ordered petitioner to appear for the deposition on April 16, and continued the fee hearing to April 24. A second order, entered on March 23, ordered petitioner to comply with the request to produce, on or before April 9. Petitioner did not produce the documents, nor did she appear for the April 16 deposition.

On April 20, Regal filed a Motion for Remedies for Failure to Comply with Orders and Rules. In response to the motion, petitioner was ordered to produce all documents not later than 12 noon the following day, and to appear for the deposition on April 23, 1987. The trial court rejected petitioner's argument that Regal already had the requested documents as a result of his representation of her in the dissolution case. (Kathleen Rice, another attorney in Driscoll's firm, appeared at the motion in Driscoll's stead.)

On April 21, petitioner's attorney, Driscoll, filed an Emergency Motion to Reconsider the April 20 order. At the hearing on the motion, petitioner's attorney alleged that petitioner would not be able to attend the April 23 deposition because, due to back problems, she had been bedridden since the early part of April. Petitioner's attorney offered to produce, for the court and Regal, an affidavit from petitioner's doctor attesting her illness and expected date of recovery. Regal rejected the court's suggestion that the deposition be taken in petitioner's home. The court then ordered that the date of the deposition would be set pending the production of the medical affidavit. No date was set for compliance with the order to produce the affidavit.

On April 24, the court conducted a hearing on Regal's April 20 motion for sanctions. The court awarded Regal attorney fees and costs as a sanction for petitioner's noncompliance with discovery orders.

As of June 3, petitioner had not filed the affidavit, nor had she paid the previously ordered attorney fees. Regal filed another motion seeking additional remedies for noncompliance. Petitioner requested, and was granted, 14 days to respond; however, no response was filed. At the July hearing on the motion, petitioner handed Regal some documents. Regal stated that while he recognized some of the documents as those having been generated in his office in connection with the dissolution action, he was not familiar with others, and could not tell whether all of the documents requested were included.

In opposition to the motion, petitioner argued that she had produced most of the records requested. Additionally, petitioner argued that the April 24 sanction had not been paid because she intended to appeal it. She further argued that she had not been ordered to produce an affidavit, and that she had told the court that the deposition could be taken at her home. Petitioner's attorney then offered to produce petitioner for a deposition.

The court stated that it would take the motion under advisement and remarked that it was disappointed that petitioner had not complied with any of the orders. On August 7, in response to Regal's June 3 motion, the trial court ordered petitioner's pleadings be stricken and entered a judgment of default. (107 Ill.2d R. 219(c).) Petitioner's October 7 Motion to Reconsider Sanctions was denied, and this appeal followed. We affirm.

Discovery rules establish guidelines for a fair and orderly procedure whereby discovery and full disclosure may be accomplished. The rules permit the imposition of sanctions upon a party deemed by the trial court to have abused or disregarded discovery rules and procedures. (King v. American Food Equipment Co. (1987), 160 Ill.App.3d 898, 910, 112 Ill.Dec. 349, 513 N.E.2d 958.) The appropriate sanction for a party's noncompliance with discovery rules is a matter within the broad discretion of the trial court, and absent an abuse of that discretion, its decision will not be disturbed on appeal. (King, 160 Ill.App.3d at 910, 112 Ill.Dec. 349, 513 N.E.2d 958; In re Estate of Soderholm (1984), 127 Ill.App.3d 871, 82 Ill.Dec. 876, 469 N.E.2d 410.) Supreme Court Rule 219(c) authorizes the trial court to enter such orders as are just, including, among others, "that, as to claims or defenses asserted in any pleading to which that issue is material, a judgment by default be entered against the offending party or that his action be dismissed with or without prejudice; or that any portion of his pleadings relating to that issue be stricken." 107 Ill.2d R. 219(c).

Petitioner's first contention on appeal is that the trial court abused its discretion in imposing the sanctions. She urges four points in support thereof. Petitioner's arguments lack merit.

She first argues that the sanctions were improperly punitive. Relying on Hardware Wholesalers, Inc. v. Clemenic (1984), 124 Ill.App.3d 304, 79 Ill.Dec. 796, 464 N.E.2d 700, she asserts that courts may not invoke sanctions which are purely punitive, but must do so only to achieve the objects of discovery. As evidence of the punitive nature of the sanctions, petitioner points out that at the July 21 hearing on the motion for sanctions she had produced all of the requested documents and had offered to be available for the deposition at any time in the future.

While it is clear that the purpose of sanctions is to accomplish the goal of discovery, at the same time, courts have an interest in promoting the unimpeded flow of litigation. This naturally requires that careful attention be paid to the prompt and orderly handling of discovery. (Fine Arts Distributors v. Hilton Hotel Corporation (1980), 89 Ill.App.3d 881, 884, 45 Ill.Dec. 257, 412 N.E.2d 608.) "Discovery for all parties will not be effective unless trial courts do not countenance violations, and unhesitatingly impose sanctions proportionate to the circumstances." Buehler v. Whalen (1977), 70 Ill.2d 51, 67, 15 Ill.Dec. 852, 374 N.E.2d 460.

Illinois courts are becoming less tolerant of violations of discovery rules, even at the expense of a case being decided on the basis of the sanction imposed, rather than on the merits of the litigation. In Lavaja v. Carter (1987), 153 Ill.App.3d 317, 106 Ill.Dec. 147, 505 N.E.2d 694, the court ordered defendant to produce documents on two separate occasions. Defendant agreed to comply, however, he produced no documents. Upon plaintiff's motion, the court struck the defendant's pleadings and entered a default judgment. See also Amoco Oil Co. v. Segall (1983), 118 Ill.App.3d 1002, 74 Ill.Dec. 447, 455 N.E.2d 876 (failure to comply with orders to appear for discovery deposition resulted in striking of defendant's counterclaim and judgment on issue of liability); Campen v. Executive House Hotel (1982), 105 Ill.App.3d 576, 61 Ill.Dec. 358, 434 N.E.2d 511 (failure to disclose name of witness in interrogatories resulted in exclusion of four defense witnesses and jury instructed on unfavorable inference to be drawn from withheld evidence).

We believe that petitioner's production of the documents and her offer to appear for her deposition came much too late. By the time of the July 21 hearing, in addition to the original date which had been set by Regal, and the second date which had been agreed upon by the parties, petitioner had been twice ordered to appear for her deposition. Further, any attempt to reschedule the deposition for yet a fifth time was thwarted by petitioner's failure to produce the affidavit from her physician. We note that a copy of a letter from Dr. Robbins, petitioner's treating physician, was finally produced. The letter, dated October 1, 1987, states that petitioner was confined to bed in April. With the exception of the excuse of illness, petitioner offered no other for her failure to appear for her scheduled depositions.

Petitioner's second argument is that her conduct was neither deliberate nor contumacious so as to warrant the sanction. She maintains that...