North Park Bus Service, Inc. v. Pastor
| Decision Date | 07 June 1976 |
| Docket Number | No. 62825,62825 |
| Citation | 349 N.E.2d 664,39 Ill.App.3d 406 |
| Parties | NORTH PARK BUS SERVICE, INC., Plaintiff-Appellant, v. Louis PASTOR d/b/a Louis Pastor & Company, Defendant-Appellee. |
| Court | United States Appellate Court of Illinois |
James H. Canel, Chicago, for plaintiff-appellant.
Barbara B. Hirsch, Chicago, for defendant-appellee.
This is an appeal from two orders of the circuit court of Cook County, chancery division. The first of these was entered August 8, 1975, pursuant to Supreme Court Rule 219. It directed plaintiff, North Park Bus Service, Inc. (North Park) to pay defendant, Louis Pastor d/b/a Louis Pastor & Company (Pastor) one hundred dollars as a sanction for failing to comply with a discovery order of the court. The second order was entered August 28, 1975. It denied plaintiff's motion for dismissal without prejudice which had been filed August 12, 1975, pursuant to ch. 110, sec. 52 of the Illinois Revised Statutes. In addition, the court granted defendant's subsequent motions for summary judgment and attorney fees pursuant to Rule 219.
On June 18, 1974, North Park filed a complaint in chancery against the Chicago Board of Education and Pastor. In this complaint North Park charged the Board with wrongfully denying it a transportation contract. In addition, Pastor, an insurance agent, was charged with failing to issue North Park a bond to accompany its bid to the Board.
Shortly thereafter defendants, Board of Education and Pastor, filed separate motions to dismiss the complaint under section 45 of the Illinois Civil Practice Act (Ill.Rev.Stat.1973, ch. 110, par. 45) and motions for summary judgment under section 57 (Ill.Rev.Stat.1973, ch. 110. par. 57). On October 28, 1974, the court granted defendant's motions to dismiss. However, North Park was given leave to amend its complaint against Pastor.
On November 8, 1974, North Park filed its first amended complaint and again Pastor filed a motion to dismiss and a motion for summary judgment. On February 18, 1975, Court I of the amended complaint was dismissed with prejudice. Count II of the complaint also was dismissed; however, North Park again was given leave to amend.
On March 10, 1975, North Park filed its second amended complaint. On April 4, 1975, Pastor moved for summary judgment, supported by memorandum, exhibits and affidavit. The court held a hearing and on June 12, 1975, entered an order denying defendant's motion for summary judgment without prejudice to renewal, but granting Pastor priority in discovery. In addition, the order set the cause down for trial on October 8, 1975.
On July 3, 1975, Pastor moved for an order compelling North Park to produce certain documents. This motion was granted on July 15, 1975, and North Park was ordered to comply within five days. Plaintiff did not comply and on August 4, 1975, Pastor moved for the imposition of sanctions. On August 8, 1975, the court granted this motion and ordered North Park to pay Pastor one hundred dollars ($100) in attorney fees and to comply with its original order by producing the documents and affidavit sought by defendant. On August 13, 1975, North Park moved to dismiss its action without prejudice. On August 20, 1975, defendant filed an answer to the second amended complaint and, in a separate motion, asked the court for summary judgment of dismissal with prejudice.
By an order entered August 28, 1975, the trial court denied plaintiff's motion for dismissal without prejudice and granted defendant summary judgment. Further, as a sanction pursuant to Supreme Court Rule 219, the court allowed defendant his attorney's fees, expenses and court costs in the amount of $5,421.34.
Plaintiff on this appeal asks that we reverse this order, as well as the order of August 8, 1975.
We affirmed the order of August 8, 1975, and reverse the order of August 28, 1975.
First, North Park argues that the entry of the order of August 8, 1975, constituted an abuse of discretion by the trial court. Although it concedes it did not fully comply with the trial court's discovery order entered July 15, 1975, North Park contends it could not be penalized under Rule 219 for this failure in the absence of proof that it had unreasonably refused to obey that order.
Supreme Court Rule 219(c) provides in part:
'In lieu of or in addition to the foregoing, the court may order that the offending party or his attorney pay the reasonable expenses, including attorney's fees, incurred by any party as a result of the misconduct, and by contempt proceedings compel obedience by any party or person to any subpoena issued or order entered under said rules.'
Rule 219 specifically provides for the imposition of sanctions when a party fails to comply with any order entered under Rules 201 through 218. Therefore, we find that the order entered by the trial court on August 8, 1975, allowing defendant attorney's fees incurred as a result of North Park's failure to comply, was proper and clearly not an abuse of discretion by the trial court. (O'Brien v. Stefaniak (1970), 130 Ill.App.2d 398, 264 N.E.2d 781; Rosales v. Marquez (1965), 55 Ill.App.2d 203, 204 N.E.2d 829.) Accordingly, we affirm the trial court's order of August 8, 1975.
North Park's second argument is that it had an absolute right to dismiss its own case without prejudice pursuant to section 52 of the Civil Practice Act, because trial of the case had not commenced on the day plaintiff moved for dismissal. Section 52 (Ill.Rev.Stat.1973, ch. 110, par. 52) provides in relevant part:
At the hearing held on June 12, 1975, on defendant's motion for summary judgment, the court denied the motion without prejudice to renewal and set the case down for trial on October 8, 1975. Defendant contends that the 'trial or hearing' of this case commenced with the hearing held on defendant's various motions.
On defendant's motions for summary judgment and dismissal under section 45 which were heard and decided on October 28, 1974, and February 18, 1975, the trial court properly confined its ruling to the section 45 motions. (Janes v. First Federal Savings and Loan Ass'n of Berwyn (1974),57 Ill.2d 398, 312 N.E.2d 605.) Such hearings do not mark the commencement of trial or hearing under section 52. (Bernick v. Chicago Title and Trust Co. (1945), 325 Ill.App. 495, 60 N.E.2d 442.) The remaining question, therefore, is the significance of the hearing held June 12, 1975, on defendant's motion for summary judgment.
The question thus presented is whether for purposes of section 52 'trial or hearing' begins with a hearing on a motion for summary judgment. In Bernick, the court held that trial commenced when the trial court heard a section 48 motion to dismiss for prior adjudication. Defendant argues that a hearing on a motion for summary judgment falls within the same category as...
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