Krasnow v. Bender

• Decision Date: 03 December 1979
• Docket Number: No. 51705,51705
• Citation: 397 N.E.2d 1381,34 Ill.Dec. 315,78 Ill.2d 42
• Parties: , 34 Ill.Dec. 315 Sally KRASNOW et al. v. Bruce BENDER et al. HELLER & MORRIS, Appellants, v. YELLOW CAB COMPANY et al., Appellees.
• Court: Illinois Supreme Court

Page 1381

397 N.E.2d 1381

78 Ill.2d 42, 34 Ill.Dec. 315

Sally KRASNOW et al. v.Bruce BENDER et al.

HELLER & MORRIS, Appellants, v.YELLOW CAB COMPANY et al., Appellees.

No. 51705.

Supreme Court of Illinois.

Dec. 3, 1979.

Heller & Morris and Schwartzbert, Barnett & Cohen, Chicago (Benjamin H. Cohen and Hugh J. Schwartzberg, Chicago, of counsel), for appellants.

Jesmer & Harris, Chicago (Julius Jesmer, Charles E. Tannen, and Allen L. Wiederer, Chicago, of counsel), for appellees.

KLUCZYNSKI, Justice:

This cause is before the court on appeal from an order of the Appellate Court, First District, dismissing the appeal on the ground that the orders from which it was taken were not final and appealable.In the first order from which review was sought, the circuit court of Cook County directed counsel for the plaintiffs to pay a fixed sum of money on a specified date for the cost of a scheduled medical examination and for attorney's fees.The order imposed sanctions authorized under our Rule 219(c)(58 Ill.2d R. 219(c)) for failure to comply with discovery.In the second order, the circuit court denied plaintiffs' counsel's motion to vacate the order imposing the sanctions.

The challenged orders were entered in the course of a personal injury action filed by Sally Krasnow and Anna Nazarowski against Yellow Cab Company and its employee, Bruce Bender.At a pretrial conference, the parties agreed, with the acquiescence of the trial judge, that plaintiff Krasnow would be examined by Dr. I. Joshua Speigel pursuant to our Rule 215(58 Ill.2d R. 215).Krasnow appeared for the examination, but, on advice of counsel, she refused to give a medical history.Dr. Speigel then refused to conduct the examination.

Thereafter, Yellow Cab Company petitioned the court for, among other relief, sanctions to be imposed on plaintiffs' counsel.Heller and Morris, for obstructing the medical examination to which Krasnow had agreed.After a hearing, the trial court, on August 19, 1977, ordered Krasnow to appear for a physical examination and to give a medical history in connection with the examination.The August 19 order further directed that "(t)he law firm of Heller and Morris shall, within 7 days from today pay to Yellow Cab Company $75.00 to reimburse it for Dr. Speigel's fee, and to Jesmer and Harris (defense counsel) the sum of $100.00 as attorney's fees."

On August 30, 1977, the trial court denied Heller and Morris' motion to vacate the August 19, 1977, order.The court found that the petition for sanctions adjudicated in the August 19 order was a matter separate and distinct from the issues to be tried between the parties, that the court retained jurisdiction of the issue of compliance with and enforcement of the sanctions, and that any proceedings concerning the enforcement of the sanctions would not delay or interfere with the trial of the underlying case.By August 30, 1977, Krasnow had already complied with the order to be examined and give a medical history.

On September 1, 1977, Heller and Morris filed a timely notice of appeal under Rule 303(a)(65 Ill.2d R. 303(a)), from the August 19 and August 30 orders.On September 27, 1977, pursuant to a settlement agreement, an order was entered dismissing the personal injury action as to all matters between the parties.The court retained jurisdiction to enforce the sanctions imposed on counsel by the August 19 order, pending the outcome of the appeal in the appellate court.On October 13, 1977, Heller and Morris filed a second notice of appeal.The two appeals were docketed under separate numbers in the appellate court and were later consolidated.

On motion of the Yellow Cab Company, the appellate court dismissed the consolidated appeals on the ground that the orders appealed from were not final or otherwise appealable.The appellate court denied Heller and Morris' petition for rehearing, and we allowed the petition for leave to appeal filed by Heller and Morris (65 Ill.2d R. 315).

We hold that, under the circumstances of this case, the order of the circuit court directing plaintiffs' counsel to pay a fixed sum of money on a specified date as a sanction for obstructing discovery was final and appealable.Following settlement of the underlying action, there was no reason to delay appeal of the sanctions order.Whatever doubt there may have been as to the appealability of the order was removed once settlement was reached.To hold that the order was not appealable following settlement would effectively bar plaintiffs' counsel from any opportunity of obtaining judicial review of the sanctions imposed.In this regard, it is significant to note that plaintiffs' counsel properly safeguarded its appeal rights by filing a second notice of appeal following settlement.

Defendants cite the principle that orders pertaining to discovery generally are not appealable until the conclusion of the underlying action, but that principle can have no application in a situation such as that presented here in which the underlying action is settled."(T)he only opportunity for review * * * of the correctness of the order is by appeal from that order."(Eskandani v. Phillips(1975), 61 Ill.2d 183, 194, 334 N.E.2d 146, 152.)The appellate court erred in dismissing the appeal.

The parties have briefed the merits of the question of whether the circuit court properly imposed on plaintiffs' counsel the attorney's fees and the cost of the medical examination.In addition the full record is before us.Under these circumstances, it is appropriate in the interest of judicial economy that we decide the merits of this cause at this time, even though the appellate court dismissed the appeal and therefore did not reach the merits (seePeople v. Berland(1978), 74 Ill.2d 286, 310, 24 Ill.Dec. 508, 385 N.E.2d 649) and even though the petition for leave to appeal raised only the question of the appellate court's dismissal of the appeal.SeeBurtell v. First Charter Service Corp.(1979), 76 Ill.2d 427, 437, 31 Ill.Dec. 178, 394 N.E.2d 380.

Under our discovery rules reasonable expenses may be imposed upon a party who "unreasonably refuses to comply" with the discovery...