Wegman v. Pratt

Decision Date12 September 1991
Docket NumberNo. 5-90-0353,5-90-0353
Citation219 Ill.App.3d 883,579 N.E.2d 1035,162 Ill.Dec. 221
Parties, 162 Ill.Dec. 221 Linda WEGMAN, Plaintiff-Appellant, v. Paul L. PRATT, Defendant-Appellee.
CourtUnited States Appellate Court of Illinois

Rehearing Denied Oct. 21, 1991.

Wiseman, Shaikewtiz, McGivern, Wahl, Flavin & Hesi, P.C., Alton, for plaintiff-appellant.

Catalina M. Alvarez, Clayton, Mo., Charlene A. Cremeens, Belleville, for defendant-appellee.

Justice LEWIS delivered the opinion of the court:

The plaintiff, Linda Wegman, brought an action in two counts against the defendant, Paul L. Pratt. In the first count the plaintiff sought both compensatory and punitive damages with respect to personal injury resulting from an alleged battery by the defendant upon her on July 5, 1988, in Ginny's Dugout, a tavern located in East Alton, Illinois. In the second count the plaintiff sought compensatory damages for personal injury arising out of the same incident, alleged, in this count, to have been caused by the defendant's negligence associated with the consumption of alcohol.

In his answer the defendant asserted as an affirmative defense with respect to the first count of the complaint, alleging battery, that upon verbal provocation he had attempted to leave the tavern but had been kicked by the plaintiff, whereupon,

"[i]mmediately after Plaintiff kicked Defendant, Defendant intentionally, knowingly and voluntarily struck Plaintiff by shoving her on or about the upper chest area, but he did so only in self-defense, and upon Plaintiff's provocation, and that in shoving Plaintiff on or about the upper chest area, Defendant used only such force as was necessary to repel Plaintiff's attack upon Defendant."

The defendant moved the trial court to dismiss the second count of the complaint, alleging negligence, "for the reason that in light of the pleadings herein, the alternative Count II of negligence cannot be made in good faith as no genuine doubt exists as to the facts insofar as they define Plaintiff's cause of action."

The defendant is an attorney. On the day the complaint was filed, August 22, 1988, plaintiff filed a motion for change of judge, asking the trial court to assign the case "to a judge from outside of Madison County, and a judge who does not know the defendant or any of his law partners, and a judge who has no political dealings with the defendant and his law partners" for the reason that "the plaintiff has heard from numerous persons that the defendant is very active in the Democratic party, has supported numerous judges in their election campaigns; is friendly with numerous judges, and is friendly with the Clerk of the Circuit Court." The plaintiff stated further in the motion that she "believes that she will not be able to receive a fair and impartial trial if this case is heard by any judge who knows the defendant, or has had any political dealings with him." On September 26, 1988, the plaintiff filed another motion for change of judge, identical to that filed on August 22, 1988. On November 3, 1988, plaintiff filed a supplement to her motion for change of judge, stating, inter alia, that her attorney "believes that it would be difficult for the plaintiff to receive a fair and impartial trial from any Judge in Madison and St. Clair Counties and from any Judge who knows or has had any association with the defendant, Paul Pratt, or any members of his law firm." Plaintiff asked that the case be assigned "to a Judge from outside of Madison and St. Clair Counties and one who does not know Attorney Paul Pratt or any members of his law firm." Plaintiff stated as grounds, among other things, the defendant's activity "in Democratic politics," the number of judges who have been connected with the defendant's present or prior law firms, and "substantial contributions" for a number of years by the defendant's law firm and individuals in the firm "to many current sitting judges."

On May 5, 1989, Judge Moran, the third judge assigned to this cause, heard and denied plaintiff's motion and supplemental motion for change of judge. Thereafter, the plaintiff, as petitioner in the supreme court of Illinois, filed a motion on June 9, 1989, requesting that court to exercise its supervisory authority over three separate causes of action, including the instant one, in which Paul Pratt was a party and to "assign the cases to a judge or judges from outside of the Third Judicial Circuit who do not know Attorney Pratt or any members of his law firm." On June 29, 1989, the supreme court denied the motion for a supervisory order.

On August 11, 1989, the trial court dismissed count II of the complaint and on September 13, 1989, granted plaintiff leave to file an amended complaint in two counts, the first alleging battery and the second negligence. On December 1, 1989, the court granted the defendant's motion to strike paragraph six of count I of the amended complaint, which stated, "That defendant knew or should have known of his violent nature when drinking or when becoming intoxicated, and with that knowledge, intentionally became intoxicated and intentionally struck the plaintiff without provocation." The trial court also granted the defendant's motion to dismiss count II of the amended complaint. The court granted leave to file a second amended complaint in conjunction with and supported by a supplemental memoranda of law. In its order the trial court stated that "[t]he instant leave granted to plaintiff to submit memoranda of law and amend her complaint shall be the last such leave granted plaintiff to plead a negligence theory in this action."

On January 17, 1990, the plaintiff filed her second amended complaint in two counts, the first alleging battery and seeking both compensatory and punitive damages, the second alleging negligence and seeking compensatory damages. On February 5, 1990, the defendant filed his answer stating that he "does admit, however, that at or about 4:33 p.m., on July 5, 1988, Defendant did strike Plaintiff by shoving her, as fully described in Defendant's AFFIRMATIVE DEFENSE, set forth herein." In his affirmative defense defendant made the same statements he had made in the affirmative defense filed in response to the complaint, including the statement that he had "intentionally, knowingly and voluntarily struck" her in the area of the upper chest in self-defense and upon her provocation. The defendant moved as well to strike paragraphs six and seven of count I of the second amended complaint and count II in its entirety. Paragraphs six and seven of Count I state as follows:

"6. That defendant knew or should have known that he suffered from alcoholism and that a foreseeable consequence of drinking was that defendant was subject to violent outbursts.

7. That defendant intentionally became intoxicated and intentionally struck the plaintiff without provocation."

Plaintiff denied each and every allegation of defendant's affirmative defense. In an order entered on February 16, 1990, the trial court expressly found that "[t]he only issue as far as liability is concerned is whether or not defendant's conduct was justified as self[-]defense." The court allowed the defendant's motions and accordingly ordered stricken paragraphs six and seven of count I and all of count II of the second amended complaint. The court stated that "[p]laintiff is not permitted in the future to plead a negligence theory in this action as per prior Order of this Court." On that day the case was set for jury trial on August 6, 1990.

On May 4, 1990, the defendant moved to strike the prayer for punitive damages in count I of the second amended complaint. In an order entered May 31, 1990, the trial court granted the motion, having determined that, "based upon the record as a whole and including the transcript of the criminal trial [People of the State of Illinois v. Paul L. Pratt, No. 88 EACM 129, in the Circuit Court for the Third Judicial Circuit, Madison County, Illinois, on September 19, 1988] submitted by plaintiff to this Court, * * * punitive damages are not appropriate in this case and are hereby stricken."

On May 22, 1990, plaintiff filed a notice to take discovery depositions of 14 persons, including "George Moran, Jr.," the judge presiding in the instant case, described as a "preoccurrence" witness in a supplement, filed the same day, to plaintiff's answers to defendant's interrogatories. In an order entered the same day the trial court sua sponte quashed the depositions of the individuals named on the notice to take discovery depositions, stating, "It is obvious that the Attached Notice to Take Discovery Depositions has nothing to do with the merits of this case."

The next day, on May 23, 1990, plaintiff filed an "Additional Motion for Change of Judge and for the Honorable George Moran, Jr. To Be Disqualified in This Case, and To Revoke the Order of May 22, 1990 Quashing the Deposition Notice," stating in part:

"c. George Moran, Sr. [,] is believed to have information concerning one or more prior incidents when the Defendant was intoxicated and may have been involved in a physical altercation with the Defendant, when the Defendant is rumored to have been inebriated at a bar association meeting.

d. George Moran, Jr. [,] is believed to have personal information concerning the event concerning his father, George Moran, Sr. [,], as stated above and is believed to have been involved in the incident following the bar association meeting. All of this would be relevant in the area of punitive damages and the Defendant's predisposition to physical altercations when he becomes intoxicated."

The plaintiff stated further in the motion that the court's unilateral striking of the notice to take discovery depositions "without even giving the Plaintiff an opportunity to be heard on the matter, shows that the Court should in fact not hear this case, and that the Order of May 22, 1990 should be rescinded." The plaintiff asserted...

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    ...her was inappropriate because it punished her rather than accomplishing discovery, relying on Wegman v. Pratt, 219 Ill.App.3d 883, 891-92, 162 Ill.Dec. 221, 579 N.E.2d 1035 (1991) ("An order of sanctions that is just within the meaning of Rule 219 is one that provides both for discovery and......
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    ...have considered the relationship between this defense and a plaintiff's negligence claim. See, e.g., Wegman v. Pratt, 219 Ill.App.3d 883, 894-95, 162 Ill.Dec. 221, 579 N.E.2d 1035 (1991) (although defendant admitted striking plaintiff intentionally, trial court improperly dismissed plaintif......
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