Stickler v. McCarthy
| Decision Date | 23 September 1965 |
| Docket Number | Gen. No. 49600 |
| Citation | 64 Ill.App.2d 1,212 N.E.2d 723 |
| Parties | Harold STICKLER, Plaintiff-Appellee, v. Daniel F. McCARTHY, Barbara K. McCarthy and Louise H. Christian, Defendants-Appellants. |
| Court | United States Appellate Court of Illinois |
David K. Anderson, Evanston, for appellants.
Thomas E. Keane, Chicago, for appellee.
The plaintiff, Harold Stickler, an attorney at law, sued his former client the defendant, Daniel F. McCarthy, and others for the reasonable value of his services, including a bonus which he alleged was to be paid him based upon the success of his efforts. The services were rendered in behalf of the defendants in a 1957 Superior Court case captioned Pickett v. McCarthy et al., and in collateral matters arising out of that cause. The other defendants were dismissed and a judgment was entered against McCarthy. The judgment was upon the pleadings and was entered as a sanction under rule 2, section 19-12(3) of the rules of the Municipal Court of Chicago for the defendant's failure to produce documents pursuant to court orders and a deposition subpoena.
There are three principal issues in this appeal: (1) the propriety of the sanction imposed; (2) whether the court erred in denying leave to file a petition for a change of venue and (3) whether damages of $130,000.00 were properly assessed.
The Pickett v. McCarthy litigation grew out of a dispute over the parties' interest in various parcels of real estate acquired by McCarthy from 1949 through 1956. Pickett claimed an undivided one-half interest in certain of the parcels which were held in McCarthy's name or in the name of nominees. In Jury 1957 McCarthy engaged Attorney Stickler to represent him. According to Stickler's complaint which was filed in 1962, McCarthy agreed to pay him a minimum fee of $25.00 per hour to be billed currently and, upon the final disposition of Pickett's claims, a further fee for the reasonable value of his services. In addition thereto there was to be a bonus based upon the degree of his success and all other pertinent facts and circumstances. The complaint alleged that the property acquired by McCarthy was woth more than $2,000,000.00, that from July 1957 to August 1961 Stickler spent approximately 1,000 hours in McCarthy's behalf and that his services were highly successful in that Pickett's claims were settled out of court with substantial savings resulting to McCarthy. It was further alleged that McCarthy had been billed and had paid $17,875.00 on account of the minimum hourly charges but had refused to pay the further fee and bonus which amounted to $130,000.00.
McCarthy's answer stated that his only agreement was to pay Stickler $25.00 per hour and that this had been paid in full. He denied that Stickler spent 1,000 hours in his behalf, that Stickler's accomplishments were highly successful or that the negotiated settlement represented a savings to him.
A chronological review of all the steps leading to the judgment, from the time the issues were joined until the judgment was entered, will best depict the situation facing the court at the time of its entry. A notice of a discovery deposition was served on McCarthy in April 1963. The notice called for the production of documents for the years 1948 to 1961 relating to 35 different transactions, loans, lawsuits, negotiations, settlements and legal services rendered by Stickler and by eight attorneys who had preceded him. McCarthy brought none of these documents to the deposition hearing which was held on May 9, 1963. His attorney stated that Stickler was entitled to the information he had requested but not at the expense of the disclosure of confidential matters, but that he and McCarthy were prepared to take any reasonable means to satisfy the request for discovery. Stickler replied that he was not interested in delving into confidential matters but that he was entitled to see the books of account concerning McCarthy's controversies with Pickett and himself, and that maybe some solution could be suggested. During the ensuing discussion and upon further questioning of McCarthy it developed that a ledger sheet existed for each of his projects on which there was detailed the various items of cost relating to the project and that, with a few exceptions, matters which he considered confidential had been eliminated from the sheets. Stickler asked if there was any reason why the ledger sheets could not be produced. McCarthy's attorney said he saw no impediment to producing them, and certain other documents that were desired, at the next hearing.
The next hearing was held May 15th. The promised ledger sheets were not produced. McCarthy's attorney said they refused to reveal private books and records which in their opinion were irrelevant and immaterial to the issues of the lawsuit and that he would ask for a protective order from the court. He said the defendant would supply particular information but not books and records and if Stickler wanted them he would have to ask the court to compel their production. He said, however, that pertinent records which would satisfy Stickler would be made available to him, but with the understanding that confidential matters would remain so. The attorney further agreed to furnish information, including prices, about McCarthy's properties which were sold before and during the pendency of the litigation with Pickett but he refused to supply information about properties sold after the litigation had ended. The attorneys agreed that the question whether information in the latter category had to be supplied would have to be threshed out in court.
The parties maintained the same positions at subsequent depositions on June 5th, June 10th, June 27th, June 28th, July 10th and October 1st. Stickler repeatedly requested the ledger sheets and other books, records and accounts; he disclaimed any interest in McCarthy's private affairs or confidential records. McCarthy repeatedly refused to produce his books and records. He termed these confidential and said he would not expose these to Stickler's scrutiny.
On October 4th order was entered setting the case for trial on December 17, 1963. On October 21st Stickler filed a motion, accompanied by his affidavit, for an order requiring McCarthy to produce the ledger sheets and other documents pursuant to the original notice of deposition and to compel him to answer certain listed questions which he had refused to answer at the depositions. The motion was set for hearing on November 4th. On that date the attorneys for the defendant withdrew and another attorney, by leave of court, entered his appearance. At the request of the new attorney the hearing on the motion was continued to November 12th.
On November 12th the hearing was held on the pending motion and on the objections that were filed to it. The objections were on the grounds that much of the information and many of the documents referred to in the motion were privileged and did not relate to the merits of the matter in controversy. The court, after considering the motion, the affidavit supporting it and the objections, overruled the objections and entered an order directing McCarthy to produce the documents and answer the questions. The court also directed that the next deposition was to be held on November 15th in his own jury room and that it continue from day to day until completed.
Upon the resumption of the deposition, McCarthy stated that despite the court order he would not produce the ledger sheets themselves or certain other documents. He did produce photostatic copies of some of the ledger sheets, one of which had been admittedly changed by him after the order of November 12th. He suggested that if given more time he might be able to bring in material he and its attorney felt was relevant. Stickler complained that an examination revealed that the photographed ledger sheets did not contain information concerning the sales of the properties. McCarthy said it was not his practice to put such information on these sheets. He said that Stickler had had in his possession, from the very beginning, all the information that was needed and that he would not produce his cash journals which contained the sales figures on any further records.
After this, events moved in rapid succession to a climax. Stickler filed a motion on November 19th which related what had taken place on November 15th, set out that the photostatic copies of the ledger sheets contained no information about the sales of the properties involved in the Pickett-McCarthy litigation and requested a supplemental order requiring McCarthy to produce his cash journals and books of account. On the same day McCarthy moved to remove the case from the jury trial calendar. The affidavit of his attorney, filed in support of the latter motion, stated that he had not had enough time to analyze the long record, to study the many exhibits or to take necessary depositions; that he would be unable to prepare the defense because of these factors and because of obligations he had to other clients, and that the trial date was during the busiest season of McCarthy's business. McCarthy's motion was not ruled upon until November 27th. Stickler's motion was continued to November 21st.
On the 21st the court ordered McCarthy to produce his original ledger sheets and his cash journals insofar as they reflected his real estate interests or sales and contracts to sell such interests. The court set November 25th as the time and his own jury room as the place for the deposition to be resumed.
President Kennedy was assassinated on November 22nd and the court house was closed for his funeral on November 25th. Because of this the business of all the courts was postponed until the following day. Stickler telephoned McCarthy and telegraphed his attorney that the hearing would take place on the 26th. The attorney sent a night letter from Minnesota...
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Dominique F., In re
...filed and in proper form, it must be granted and any order entered after its presentation is a nullity. (See Stickler v. McCarthy (1965), 64 Ill.App.2d 1, 19, 212 N.E.2d 723, aff'd in part & rev'd in part on other grounds (1967), 37 Ill.2d 48, 224 N.E.2d 827.) We cannot allow a trial judge ......
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