Northern Illinois Gas Co. v. Midwest Mole, Inc.

• Decision Date: 28 June 1990
• Docket Number: No. 2-89-0710,2-89-0710
• Citation: 556 N.E.2d 1276,199 Ill.App.3d 109,145 Ill.Dec. 374
• Parties: , 145 Ill.Dec. 374 NORTHERN ILLINOIS GAS COMPANY, Plaintiff-Appellant, v. MIDWEST MOLE, INC., Defendant-Appellee (Pontarelli Brothers Contracting Company, Inc., Third-Party Defendant-Appellee).
• Court: United States Appellate Court of Illinois

Page 1276

556 N.E.2d 1276

199 Ill.App.3d 109, 145 Ill.Dec. 374

NORTHERN ILLINOIS GAS COMPANY, Plaintiff-Appellant, v. MIDWEST MOLE, INC., Defendant-Appellee (Pontarelli Brothers Contracting Company, Inc., Third-Party Defendant-Appellee).

No. 2-89-0710.

Appellate Court of Illinois Second District.

June 28, 1990.

Laurence Leszcynski, Major, Fennell & Associates, Ltd., Wheaton, for Northern Illinois Gas Co.

Thomas R. Weiler, O'Reilly, Cunningham, Norton & Mancini, Wheaton, Dale W. Bruckner, Wheaton, Elizabeth W. Sexton, Peregrine, Stime, Newman, Ritzman & Bruckner, Ltd., for Midwest Mole, Inc., and Ponteraelli Brothers Contract.

Justice INGLIS delivered the opinion of the court:

Plaintiff, Northern Illinois Gas Company, filed a complaint in the circuit court of Cook County on February 5, 1985, seeking compensation in the amount of $42,577.21 for damage to its gas lines allegedly caused by defendant, Midwest Mole, Inc. On April 11, 1988, the case was transferred to the circuit court of Du Page County. On August 19, 1988, defendant filed a motion to compel plaintiff to comply with discovery in this case. However, plaintiff failed to appear at the hearing on defendant's motion, and, on August 29, 1988, the cause was dismissed for want of prosecution. On September 28, 1988, the order of dismissal was vacated, and plaintiff was given additional time to comply with discovery orders. Plaintiff again failed to comply with the discovery orders, and on December 6, 1988, on defendant's motion, plaintiff failed to appear at a hearing and the cause was dismissed with prejudice pursuant to Supreme Court Rule 219(c) (107 Ill.2d R. 219(c)).

On January 10, 1989, plaintiff filed a motion to vacate the December 6, 1988, order. The trial court denied plaintiff's motion on March 3, 1989. On March 27, 1989, plaintiff petitioned the trial court, this time apparently pursuant to section 2-1401 of the Code of Civil Procedure (Code) (Ill.Rev.Stat.1987, ch. 110, par. 2-1401), seeking to vacate the order of December 6, 1988. The trial court denied this petition on June 23, 1989.

Plaintiff then appealed, seeking review of the trial court's orders of December 6, 1988, March 3, 1989, and June 23, 1989. On January 9, 1990, this court granted appellees' motion to dismiss the appeal. On February 6, 1990, upon reconsideration, this court reinstated plaintiff's appeal only with respect to the trial court's order of June 23, 1989, and the order dismissing the appeal remained in effect as to the trial court's orders of December 6, 1988, and March 3, 1989.

The record reveals the following chronology of facts pertinent to this appeal. Plaintiff first filed its complaint in the circuit court of Cook County on February 5, 1985. Defendant, Midwest Mole, filed its answer on March 12, 1985. On December 15, 1986, defendant filed a request to produce, directing plaintiff to produce certain documents. Defendant also propounded interrogatories to plaintiff and filed a notice of deposition on December 18, 1986. On February 5, 1987, an order was entered requiring all parties to complete discovery. Written discovery was to be completed by April 30, 1987, and oral discovery was to be completed by July 31, 1987. Discovery was to be closed on August 3, 1987. From February through May 1987, defendant sent three letters requesting plaintiff to complete discovery. On July 6, 1987, defense counsel again wrote to plaintiff, noting that plaintiff's written responses had not been received and advised plaintiff that the scheduled depositions could not proceed without the completion of written discovery unless plaintiff was willing to produce the witnesses for deposition at a later date.

On July 22, 1987, plaintiff filed partial answers to defendant's interrogatories and responded to the request to produce. On July 31, 1987, noting that plaintiff had not produced all of the requested documents, defendant requested that plaintiff file an affidavit pursuant to Supreme Court Rule 214 (107 Ill.2d R. 214), stating whether the production was complete in accordance with the request. On August 24, 1987, counsel for defendant sent a correspondence to plaintiff again requesting it to complete discovery.

On August 31, 1987, defendant filed a motion to extend the time to complete discovery. The circuit court of Cook County extended the time for written discovery until November 15, 1987.

On September 1, 1987, defendant filed notices directing plaintiff to produce three of its employees for deposition. On September 11, 1987, defendant filed supplemental interrogatories and another request to produce. On October 20, 1987, defendant was granted leave to file a third-party complaint against Pontarelli Brothers Contracting, Inc., and a counterclaim against plaintiff. Thereafter, defendant filed several notices of deposition to depose employees of plaintiff.

On April 11, 1988, third-party defendant, Pontarelli Brothers, filed a motion for a change of venue. The circuit court of Cook County granted the motion, and the cause was transferred to the circuit court of Du Page County.

On August 26, 1988, defendant filed a motion to compel plaintiff to comply with previous requests concerning interrogatories and notices to produce. Counsel for plaintiff failed to appear, and the motion was continued to August 29, 1988. On August 29, 1988, the cause was dismissed for want of prosecution because plaintiff again failed to appear. On September 28, 1988, the trial court vacated the August 29, 1988, dismissal order, and plaintiff was given 14 days to answer the outstanding interrogatories.

On November 14, 1988, defendant sent plaintiff a notice of a motion for a hearing on November 22, 1988, to dismiss plaintiff's complaint for failure to comply with the September 28, 1988, order. The motion averred that, due to the failure of plaintiff to respond to discovery requests, the deposition of witnesses had been delayed and plaintiff's conduct had prejudiced defendant in preparing its defense. No hearing was conducted on November 22, 1988, and defendant sent plaintiff a new notice indicating that the hearing would take place on December 6, 1988. On December 6, 1988, pursuant to notice served on plaintiff, defendant moved for a hearing instanter on its motion to dismiss. Plaintiff failed to appear, and the trial court dismissed the cause with prejudice pursuant to Supreme Court Rule 219(c). (107 Ill.2d R. 219(c).) Defendant then sent a copy of the dismissal order to plaintiff.

On January 10, 1989, plaintiff, through newly employed counsel, filed a notice and a motion to vacate the December 6, 1988, order. Plaintiff also filed answers to defendant's supplemental interrogatories on that date. In addition, plaintiff filed an affidavit of Thomas J. Shanahan, its former attorney, which stated that Shanahan never received notice that defendant would proceed on its motion to dismiss other than a "Notice of Motion of November 22,

1988." In the affidavit, Shanahan claimed to have appeared on November 22, 1988, but was advised that defendant had failed to appear. The record indicates that the notice of the December 6, 1988, hearing was mailed on November 22, 1988.

A hearing on plaintiff's motion was conducted on March 3, 1989. At the hearing, plaintiff's new counsel acknowledged that he had received plaintiff's file late in December 1988 and claimed that he did not see any notice setting the matter for a hearing on December 6, 1988. Plaintiff argued that because it had scheduled the motion to vacate on January 3, 1989, the motion was timely filed within 30 days of the judgment as a section 2-1301 motion applicable to default judgments. (Ill.Rev.Stat.1987, ch. 110, par. 2-1301.) The trial court noted that plaintiff's motion was not properly filed as required for a section 2-1301 motion and denied the motion. The trial court also observed that the motion would have been inadequate as a section 2-1401 petition (Ill.Rev.Stat.1987, ch. 110, par. 2-1401). Plaintiff's request to file a section 2-1401 petition instanter was denied.

On March 27, 1989, within 30 days of the denial of its first motion to vacate, plaintiff apparently filed another petition to vacate purportedly under section 2-1401 of the Code. A copy of this petition does not appear in the record. After a hearing on May 5, 1989, the trial court took the matter under advisement. On June 23, 1989, the trial court entered a detailed order denying plaintiff's section 2-1401 petition. The trial court observed that it had the power to dismiss an action for failure of a party to comply with discovery orders. The court noted that plaintiff had failed to demonstrate any legitimate excuse for its failure to comply with discovery orders or that plaintiff's refusal was reasonable. The trial court concluded that plaintiff failed to show the existence of a meritorious claim, and in failing to complete discovery over the 18-month period between July 1987 and January 10, 1989, plaintiff had displayed a complete lack of diligence and had not shown that the failure to complete discovery was through no fault or negligence of its own. On July 14, 1989, plaintiff filed a notice of appeal.

On appeal, plaintiff contends that: (1) the trial court abused its discretion in dismissing its complaint with prejudice; (2) the motion to vacate the dismissal order pursuant to section 2-1301 of the Code was timely filed; and (3) the section 2-1401 petition was sufficient to entitle it to post-judgment relief.

We initially consider the nature and timeliness of plaintiff's post-judgment "motions" to vacate the December 6, 1988, dismissal order, as these motions may affect our jurisdiction to hear this appeal. Notwithstanding plaintiff's arguments to the contrary, the first purported motion to vacate the December 6, 1988, order was brought more than 30 days after the entry of judgment. Although it was not initially labeled as a section 2-1301 motion, plaintiff argued...