Payne v. Coates-Miller, Inc.

• Decision Date: 18 January 1979
• Docket Number: INC,No. 77-707,COATES-MILLE,77-707
• Citation: 25 Ill.Dec. 127,68 Ill.App.3d 601,386 N.E.2d 398
• Parties: , 25 Ill.Dec. 127, 8 A.L.R.4th 1171 Mary PAYNE and Bernard Wilson et al., Plaintiffs-Appellees, v., Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 398

386 N.E.2d 398

68 Ill.App.3d 601, 25 Ill.Dec. 127, 8

A.L.R.4th 1171

Mary PAYNE and Bernard Wilson et al., Plaintiffs-Appellees, v. COATES-MILLER, INC., Defendant-Appellant.

No. 77-707.

Appellate Court of Illinois, First District, Fourth Division.

Jan. 18, 1979.

William Henning Rubin, Chicago, respondent pro se.

William P. Wilen and Nancy Boyland Collins, Chicago, for plaintiffs-appellees.

LINN, Justice.

Following a hearing in the circuit court of Cook County, William Henning Rubin, attorney for defendant, Coates-Miller, was held in criminal contempt of court and fined $1,000 for willfully impeding the progress of pretrial discovery. Rubin appeals, contending: (1) the trial court lacked jurisdiction to entertain the rule to show cause petition; (2) the trial judge should have recused himself from the contempt proceedings; and (3) the evidence demonstrates that his conduct was not contemptuous.

We affirm the judgment of the trial court.

On October 31, 1975, a class action complaint was filed against defendant, Coates-Miller, on behalf of plaintiff, Mary Payne, both individually and as a representative of all other tenants residing in buildings managed and operated by defendant. The complaint challenged Coates-Miller's practice of assessing costs and attorney fees against a tenant for late rental payments, Before Coates-Miller had successfully litigated a forcible entry and detainer action against the tenant.

On June 17, 1976, plaintiffs mailed a notice of deposition to William Henning Rubin, Coates-Miller's attorney of record. ¹ The notice informed Rubin that the deposition of Harrison Daniels, an employee of Coates-Miller, would be taken on June 29. The notice also requested that Daniels produce certain specified documents at his deposition.

On June 24, Rubin informed Nancy Collins, one of plaintiffs' attorneys, that the June 29 date for Daniels' deposition was out of the question. When asked for an alternative date, Rubin simply told Ms. Collins that she "would be lucky to get discovery within a year or a year and a half."

On July 7, plaintiffs filed a motion to compel discovery. Following a hearing, the trial judge ordered Daniels to appear in court on July 13, for the taking of his deposition. Daniels, however, left the City of Chicago July 11 on a trip to Mexico and did not appear for his July 13 deposition as ordered. Plaintiffs were given no advance notice that Daniels would not appear.

On July 14, plaintiffs filed a second motion to compel discovery. Following a hearing, the trial court ordered Daniels to produce by July 28 the documents plaintiffs had previously requested and to appear in court for the taking of his deposition on August 4.

Plaintiffs also filed on July 14 a motion for preliminary injunction. The injunction sought to enjoin Coates-Miller's practice of assessing expenses and attorney fees against tenants for late rental payments, before Coates-Miller had successfully litigated a forcible entry and detainer action against them. The preliminary injunction was granted.

On July 21, Coates-Miller filed a notice of appeal from the interlocutory order granting plaintiffs the preliminary injunction. (See Ill.Rev.Stat.1975, ch. 110A, par. 307(a)(1).) ² During the pendency of that appeal, the discovery procedures with regard to the merits of this case continued at the trial level.

Daniels returned from his vacation to Mexico on July 26. Nevertheless, he did not produce by July 28 the documents plaintiffs had requested, and he did not appear for his court ordered deposition on August 4.

The trial court issued a rule to show cause why Daniels should not be held in contempt of court for his alleged willful failure to comply with both the July 7 and July 14 discovery orders. At his rule to show cause hearing, Daniels testified that Rubin had never informed him of any scheduled depositions or of any order to produce documents:

"Q. Have you ever discussed With your attorney Mr. Rubin or with anybody else the fact that you had been asked to appear in a deposition in this case?

A. No.

Mr. Mazur: * * * (D)id Mr. Rubin ever make you aware of an Order of this Court on July 7th that you were to appear at a deposition on July 13th in this courtroom?

A. No.

Q. Did Mr. Rubin ever make you aware of an Order of this Court issued on July 14th, 1976 that you were to give to plaintiffs' attorneys by July 28th documents listed in plaintiffs' Exhibit 1?

The Witness: No."

In light of this testimony, the rule to show cause which was issued against Daniels was dismissed.

On August 20, plaintiffs petitioned the trial court to issue a rule to show cause why Rubin, as Coates-Miller's attorney, should not be held in contempt of court for willfully impeding the progress of pretrial discovery by violating the court's discovery orders of July 7 and July 14. Following a hearing on plaintiffs' petition, the trial court issued the rule to show cause against Rubin. The rule to show cause hearings were held on December 30, 1976, and on February 2 and 3, 1977. Rubin was represented by counsel at these hearings.

The first witness called by plaintiffs at the hearings was attorney Nancy Collins. Ms. Collins testified that on June 24, 1976 she talked with Rubin about Daniels' June 29 deposition. Rubin informed her that the deposition could not go ahead as it was incompatible with his (Rubin's) schedule. Ms. Collins testified further:

"I asked Mr. Rubin about alternative dates within the relative period around the middle to the end of June or the beginning of July and Mr. Rubin said that none of those dates were possible.

I then pressed him for a date saying that we didn't want to come to Judge Cohen on a motion to compel discovery. Mr. Rubin told me at that time that I didn't understand the case and that we would be lucky to get discovery within a year or a year and a half."

Ms. Collins also stated that when Daniels failed to produce certain documents on July 28 as ordered by the trial court, she called Rubin and asked when the documents would be produced. Rubin told her that "he was * * * very busy and * * * had not had time to decide whether or not he was going to produce the documents."

The plaintiffs called Harrison Daniels as their next witness. Daniels is an employee of Coates-Miller and is the manager of the only office Coates-Miller maintains in the Chicago area. Essentially repeating the testimony he gave at His own rule to show cause hearing, Daniels stated that prior to August 16, 1976, he had never been informed by Rubin of any court ordered depositions or of any order to produce documents. Daniels was questioned further on this point:

"Q. Mr. Daniels, did you at any time during the pendency of this lawsuit receive a request from either Brian Flisk, Barry Flisk, Howard Weitzman or anyone else in the (Coates-Miller) organization to assemble records in connection with (the) Payne versus Coates-Miller case?

A. Yes.

Q. Do you recall when that took place?

A. No, truthfully I can't pin down the exact time * * *."

Brian Flisk testified next. Flisk is chairman of the board of B. Coleman, Inc., the parent corporation of Coates-Miller. Flisk was asked if Rubin had ever informed him of the trial court's discovery orders of July 7 and 14 which directed that Daniels appear for his deposition on July 13 and August 4 respectfully. Flisk could only recall Rubin mentioning one time that "a deposition was scheduled." Flisk could not remember when Rubin made the statement or whose deposition Rubin was talking about.

Flisk was also asked if Rubin had informed him of the trial court's discovery order directing Daniels to produce specified documents by July 28. Flisk responded:

"I know he (Rubin) told us that we had to produce documents. The specific date I don't remember.

Q. When did he tell you this?

A. The date I don't remember.

Q. Was it in August, August 16th after Mr. Daniels was here (for his rule to show cause hearing)?

A. I don't remember."

Rubin took the stand and testified in his own behalf. The vast majority of Rubin's testimony is completely irrelevant with regard to the basis of the rule to show cause proceeding. Rubin made only one statement with regard to his efforts to ensure compliance with the trial court's July 7 and 14 discovery orders:

"Q. When you discussed the Orders entered by this Court with your clients, did you inform them that there was there were discovery matters outstanding?

A. Yes.

Q. And what did you tell them?

A. I told them that Mr. Daniels that the presence of Mr. Daniels was required to be deposed and That they should ascertain a date when he would be available, and I said see if it fitted into my schedule and I would advise Counsel as to what date we could proceed. " (Emphasis added) Rubin also called Howard Weitzman, president of Coates-Miller, as a witness. Weitzman testified that he and Rubin had about three or four conversations in June and July of 1976. However, Weitzman could only recall Rubin telling him during these two months to get certain records together "because we're going to need them."

Following the close of all the evidence and after considering the arguments and memoranda of counsel, the trial court found Rubin guilty of indirect criminal contempt and fined him $1,000. In rendering its judgment, the trial court made the following express findings:

"12. The testimony of Brian Flisk and Howard Weitzman, witnesses proferred (sic) by respondent for the purpose of demonstrating that Mr. Rubin did seek to ensure compliance with the Court orders of July 7, 1976 and July 14, 1976, is not credible. Given the inability or unwillingness of said witnesses to specify when Mr. Rubin spoke with them about the discovery proceedings which were the subject of the above orders, the testimony of Messrs. Flisk and Weitzman merely substantiates the fact that Mr. Rubin did not in fact seek to ensure compliance with the orders.

13. No other credible evidence was...