Stickler v. McCarthy

• Decision Date: 29 March 1967
• Docket Number: No. 39813,39813
• Citation: 224 N.E.2d 827,37 Ill.2d 48
• Parties: Ruth Marguerite STICKLER et al., Appellees, v. Daniel F. McCARTHY, Appellant.
• Court: Illinois Supreme Court

Page 827

224 N.E.2d 827

37 Ill.2d 48

Ruth Marguerite STICKLER et al., Appellees, v. Daniel F. McCARTHY, Appellant.

No. 39813.

Supreme Court of Illinois.

March 29, 1967.

David K. Anderson, Evanston, and Robert A. Sprecher, Chicago, for appellant.

Thomas E. Keane, Chicago, for appellees.

HOUSE, Justice.

This is another in a series of cases arising out of discovery procedures. The circuit court of Cook County rendered a judgment on the pleadings as a sanction against the defendant, Daniel Fl. McCarthy, for failure to produce documents and to honor a deposition subpoena in an action for attorney fees by the original plaintiff, Harold Stickler. Damages were assessed in the amount of $130,000. The Appellate Court, First District, affirmed the trial court on the issue of liability but reversed and remanded for a jury hearing on the question of damages. (64 Ill.App.2d 1, 212 N.E.2d 723.) We granted leave to appeal.

Defendant retained Stickler, a lawyer, to represent him in litigation wherein one Pickett claimed a one-half interest in a number of parcels of real estate held in defendant's name and in the names of nominees. Pickett's claims were settled out of court. Stickler billed defendant and had been paid $17,875. His version of the employment contract was that he was to be paid a minimum fee of $25 per hour plus a further fee for the reasonable value of his services and a bonus based upon the degree of his success. He claimed to have spent 1,000 hours (later reduced to 715 hours) for his client, that he settled the claims very advantageously, and that he was entitled to a further fee and bonus of $130,000. Defendant stated that he was to pay only $25 per hour as total fees without any bonus.

A notice of a discovery deposition was served on defendant demanding books of accounts and other records for the years 1948 to 1961 pertaining to 35 transactions and subjects. The first hearing was held on May 9, 1963, and thereafter seven more had been held by October 1, 1963. At the several hearings some 1300 pages of testimony were taken during which defendant expressed a willingness to produce documents, but he insisted that he should not have to furnish those containing confidential matters which would disclose his apparently successful operations.

On November 12, 1963, pursuant to a motion to which objections were filed, an order was entered directing that all documents requested in the original notice be furnished, that defendant answer all questions propounded to him and that the discovery deposition be resumed in the judge's court room on November 15. On that day defendant produced photostatic copies of ledger sheets pertaining to a number of the transactions and said that if he were given more time he could bring in additional relevant material. Plaintiff filed another motion stating that the ledger sheets did not give the information requested concerning sales and that one of the photostats admittedly had been changed. The court entered a supplemental order on November 21 directing production of original ledger sheets covering the years 1948 to date insofar as they pertained to acquisition or sales of real estate together with original cash journals and set the next deposition hearing for November 25. The courthouse was closed on that date because of President Kennedy's funeral, and plaintiffs attorney wired the judge from Rochester, Minnesota, that he could not get back until November 27. On November 26 an order was entered deferring all proceedings in the cause until November 27. On that day, defendant's motion to remove the cause from the trial calendar (previously set for December 17, 1963) was argued and extensive colloquy ensued between counsel and the court. New counsel (an order approving substitution of counsel had been entered on November 4) stated that he had spent much time on the case going through the documents which defendant had searched out from his files and that he needed to take plaintiff's deposition, but did not have time before the trial date and he moved that the cause be removed from the jury trial calendar. The court refused and denied the motion, whereupon defendant's attorney again complained that the original notice (incorporated in subsequent orders) was too broad in that it called for documents not needed and it requested confidential information.

Thomas E. Keane, plaintiff's counsel, then said: 'Now, all Mr. McCarthy has to do is take the properties listed in the quit claim deed--those are the ones in which we represented him--give us the acquisition cost, whatever it was, * * * so that we have all the costs in piece A, and the sale price as shown on his books and records. That is just as simple as the day is long, and that is all we want. I don't care about any transcripts, or motions or orders.' The court then commented 'that is all he wants.' Thereafter Keane said: '(I)f he has the stenographer write just my last few words, he will know explicitly what we want and for his enlightenment, I will tell him again. Take the quit claim deed given by Pickett in the Pickett-McCarthy settlement and take the properties set forth in the quit claim deed, and give us the records on all of the acquisition costs, and the sale prices. I do not care who he sold them to or anything else.' The court directed preparation of an order for production of only those documents mentioned by plaintiff's attorney.

On November 29 such an order was entered and resumption of the deposition hearing was set for December 2. Defendant did not appear on November 29 (it being understood that he would not) and he says that neither he nor his attorney had notice of the date for resumption of the hearings and that, in fact, they knew neither that the order was to fix the date of the next hearing nor that a setting had been made for December 2. By agreement the time was then set for December 4 and later changed to December 5. On December 5, defendant, after giving notice, asked for an order compelling plaintiff to submit to the taking of his and his attorney's depositions and presented motions for a change of venue from the trial judge and from all other judges of the municipal court. On the same day plaintiff filed a motion to strike defendant's answer and for a judgment on the remaining pleadings under section 19--12(3) of Rule 2 of the Municipal Court (identical with our...