No. 2--95--1533
_________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
_________________________________________________________________
NANCY BLOTT, ) Appeal from the Circuit Court
) of Du Page County.
Plaintiff, )
)
v. ) No. 94--L--1325
)
JOHN HANSON, )
)
Defendant-Appellee )
)
(Jesus Quintero, Defendant; ) Honorable
Parrillo, Weiss and O'Halloran, ) Edward R. Duncan, Jr.,
Appellant). ) Judge, Presiding.
______________________________________________________________________________
JUSTICE RATHJE delivered the opinion of the court:
The law firm of Parrillo, Weiss and O'Halloran (law firm)
appeals from an order of the circuit court of Du Page County
requiring the law firm and its client, Jesus Quintero, to pay $525
in attorney fees to the attorneys for Quintero's codefendant, John
Hanson (Hanson), for failure to comply with discovery. The sole
issue on appeal is whether the trial court abused its discretion in
assessing the attorney fees against the law firm. No issue is
raised as to whether Quintero should have been required to pay
attorney fees.
On March 29, 1994, plaintiff, Nancy Blott, filed a complaint
against Quintero and Hanson seeking damages for injuries she
received while a passenger in an automobile driven by Hanson, which
allegedly was struck by an automobile driven by Quintero. On
November 30, 1994, the trial court entered an order vacating all
defaults and granting leave to both Quintero and Hanson to file
their pleadings and written discovery within 21 days. Written
discovery was to be completed by January 18, 1995, and depositions
were to be completed by March 29, 1995. The matter was continued
for status until April 12, 1995.
On November 30, 1994, in addition to his answer, Hanson filed
a counterclaim for contribution against Quintero. Also on
November 30, 1994, Hanson filed a motion to produce,
interrogatories to be answered by Quintero, and a notice of
deposition for Quintero for February 13, 1995. According to the
certificate of service, these had previously been sent to
Quintero's attorneys on November 4, 1994. On December 21, 1994,
Quintero filed his answers to the complaint and Hanson's
counterclaim for contribution and a counterclaim for contribution
from Hanson. Quintero's counterclaim was later stricken, and an
amended counterclaim for contribution was filed.
At the April 12, 1995, status hearing, counsel for Hanson
filed a motion for sanctions pursuant to Supreme Court Rule 219
(134 Ill. 2d R. 219) and advised the trial court that Quintero had
not yet answered written discovery. The trial court entered an
order requiring Quintero to answer written discovery by May 3,
1995.
On June 6, 1995, counsel for Hanson and counsel for Quintero
appeared. Counsel for Hanson sought an order pursuant to Rule 219
striking Quintero's pleadings for failure to comply with written
discovery. The following colloquy ensued:
"MR. PARRILLO [Quintero's counsel]: I would ask for one
more opportunity to comply.
THE COURT: Why haven't you yet complied?
MR. PARRILLO: There is a language difficulty problem
here with our client.
THE COURT: Did you contact him?
MR. PARRILLO: Yes.
THE COURT: In six months haven't you had an interpreter
come in or a family member or a friend who could speak
bilingual who could get you the information?
MR. PARRILLO: Well, we have a Spanish-speaking secretary
to secure answers and documents. We have not been able to get
them."
Counsel for Hanson advised the trial court that while he had no
objection to continuing the case this would be the third time the
case was continued for compliance with discovery. After being
informed that both defendants had filed counterclaims against each
other, the colloquy continued as follows:
"THE COURT: What I am going to do today is award
attorney's fees for coming in here today and for one on the
past Court appearance on April 12th.
I will give you until June 27th to answer the
interrogatories, and I am going to enter and continue the
motion for sanctions, further sanctions, under 219 to July
12th.
MR. PARRILLO: Are you entering sanctions against the
defendant?
THE COURT: Against the defendant and your firm.
MR. PARRILLO: Why my firm?
THE COURT: Why sir? Because I have the power to do so.
You haven't complied with discovery. You haven't provided me
with a satisfactory reason for not getting the answers to
interrogatories on file."
On July 12, 1995, counsel for Hanson and counsel for Quintero
again appeared. Counsel for Quintero presented an affidavit in
which she outlined the various efforts that the law firm made to
contact Quintero. These included letters in both Spanish and
English, numerous telephone calls, as well as personal visits by
Metro Services, Inc., to the place where Quintero was believed to
reside. The following colloquy then ensued:
"THE COURT: Miss Schmal, is there anything you wish to
state about the affidavit for fees?
MS. SCHMAL [Quintero's counsel]: I do not think any of
it should be directed towards our firm. ***
As you can see from the affidavit, we have done
everything we can to secure his cooperation. I would prefer
that there not be fees assessed against my client as well, but
that is up for the Court to decide. I realize there have been
orders against my client, and he has not answered
interrogatories.
THE COURT: Were these efforts ever communicated to you
before?
MR. ROBERTELLI [Hanson's counsel]: No.
THE COURT: They certainly were never--
MR. ROBERTELLI: I take that back. Last time we were
here, I think Mr. Parrillo made mention that there had been
efforts made.
THE COURT: He didn't outline them, ma'am. He never
explained to me prior to the orders being entered that you
weren't able to contact your client."
The trial court found the $525 in attorney fees set forth in
counsel for Hanson's affidavit to be reasonable and awarded them
against Quintero and the law firm. The trial court also refused
the law firm's request for a Rule 304(a) (155 Ill. 2d R. 304(a))
finding.
On August 14, 1995, Hanson filed another motion pursuant to
Rule 219 seeking sanctions for Quintero's refusal to answer written
discovery or appear for his deposition. Hanson also filed a
petition for a rule to show cause for the failure of either
Quintero or his attorneys to pay the court ordered attorney fees.
On November 7, 1995, counsel for all parties appeared. The
trial court rejected counsel for Quintero's argument that it should
have considered the documents in support of the affidavit she
presented on July 12, explaining the law firm's efforts to contact
Quintero, on the basis that it had made its ruling on June 6. The
trial court also rejected counsel for Quintero's argument that the
fees were not payable until such time as the law firm had had an
opportunity to appeal the award. After questioning counsel for
Quintero, the trial court granted the motion for sanctions,
ordering Quintero's counterclaim against Hanson dismissed and
entering a default against Quintero on Hanson's counterclaim. The
trial court also entered summary judgment in favor of Hanson and
against the plaintiff. Finally, the trial court found that there
was no just reason to delay enforcement or appeal of the order
pursuant to Rule 304(a).
During the pendency of this appeal, Hanson filed a motion to
dismiss the appeal on the basis that the orders appealed from were
not final orders.
Rule 304(a) provides in pertinent part that "[i]f multiple
parties or multiple claims for relief are involved in an action, an
appeal may be taken from a final judgment as to one or more but
fewer than all of the parties or claims only if the trial court has
made an express written finding that there is no just reason for
delaying either enforcement or appeal or both." 155 Ill. 2d R.
304(a). An order is final and appealable if it terminates the
litigation between the parties on the merits or disposes of the
rights of the parties, either on the entire controversy or a
separate part thereof. Viirre v. Zayre Stores, Inc., 212 Ill. App.
3d 505, 512 (1991). A Rule 304(a) finding does not make a nonfinal
order appealable; rather, the Rule 304(a) finding makes a final
order appealable where there are multiple parties or claims in the
same action. Viirre, 212 Ill. App. 3d at 511-12.
In its amended notice of appeal, the law firm stated it was
appealing from the trial court orders entered on June 6, July 12,
and November 7, 1995. As to the June 6 and July 12 orders, Hanson
correctly states that orders pertaining to discovery generally are
not appealable until the conclusion of the underlying action.
Krasnow v. Bender, 78 Ill. 2d 42, 47 (1979). However, the court
went on to state that the above principle had no application in a
situation in which the underlying action is settled as the only
opportunity for review of the correctness of the order was by an
appeal of that order. Krasnow, 78 Ill. 2d at 47.
Hanson's reliance on In re Marriage of Young, 244 Ill. App. 3d
313 (1993) is misplaced. In that case, during the pendency of an
action for dissolution of marriage, the trial court imposed an
award of attorney fees against the husband for failing to comply
with discovery. While the trial court also struck the husband's
pleadings and entered a default against him, the order also
permitted the husband to reinstate his pleadings subject to certain
conditions. In its order imposing the sanction, the trial court
made a finding pursuant to Rule 304(a). The husband appealed the
attorney fees sanction imposed against him. The appellate court
dismissed the appeal on the basis that it was a nonfinal order and
not an order imposing sanctions following a contempt proceeding
which would have been considered final and appealable. Young, 244
Ill. App. 3d at 316.
In the present case, the order of November 7, 1995, disposed
of the entire controversy between Hanson and Quintero and between
Hanson and the plaintiff, leaving only the action between the
plaintiff and Quintero. As the order of November 7, 1995,
contained the requisite language under Rule 304(a), that order was
properly appealed from. Since the orders of June 6 and July 12
pertain to the controversy between Hanson and Quintero, they are
final and appealable as well. Otherwise, there would be no
opportunity for appellate review of those orders. Therefore, we
deny the motion to dismiss the appeal.
The sole issue raise on appeal is whether the trial court
erred in entering sanctions against the law firm.
Supreme Court Rule 219(c) provides a nonexclusive list of
sanctions that a trial court may impose in the event of the
noncompliance with its discovery orders. The Rule provides further
in pertinent part as follows:
"In lieu of or in addition to the foregoing, the court
may order that the offending party or his attorney pay the
reasonable expenses, including attorney's fees incurred by any
party as a result of the misconduct ***." (Emphasis added.)
134 Ill. 2d R. 219(c).
The law firm argues that it made numerous efforts to contact
Quintero. Moreover, it points out that, in the cases in which
sanctions have been imposed against a party's attorney, the
sanctions have been imposed for some actual misconduct by the
attorney and not for the misconduct of the party. See Krasnow, 78
Ill. 2d 42 (attorney advised client not to give medical history to
defendant's doctor); Martzaklis v. 5559 Belmont Corp., 157 Ill.
App. 3d 731 (1987) (attorney instructed investigator to
misrepresent himself to secure discovery from a witness after the
discovery closure date); In re Marriage of Brack, 149 Ill. App. 3d
777 (1986) (attorney refused to produce requested document in his
possession).
The imposition of sanctions for the noncompliance with
discovery rules and orders rests largely within the sound
discretion of the trial court and will not be disturbed on review
absent a clear abuse of discretion. Workman v. St. Therese Medical
Center, 266 Ill. App. 3d 286, 293 (1994). However, sanction orders
are to be imposed only when the noncompliance is unreasonable and
the order entered is just. Workman, 266 Ill. App. 3d at 293. In
determining whether the noncompliance with discovery rules or
orders is unreasonable, the standard is whether the noncomplying
party's conduct shows a deliberate, contumacious, or unwarranted
disregard of the court's authority. Workman, 266 Ill. App. 3d at
293. While the trial court may impose necessary sanctions to
accomplish discovery, it may not impose sanctions which are
intended primarily as punishment. 266 Ill. App. 3d at 293.
Once the trial court has imposed a sanction for noncompliance
with a discovery rule, the sanctioned party bears the burden of
establishing that the noncompliance was reasonable or justified by
extenuating circumstances or events. H&H Sand & Gravel Haulers Co.
v. Coyne Cylinder Co., 260 Ill. App. 3d 235, 241-42 (1994). In
this case, the law firm presented an affidavit illustrating its
many and varied attempts to contact Quintero between July 27, 1994,
through June 26, 1995. These included the use of a private
investigation company which eventually advised the law firm to
suspend its efforts to contact Quintero. In addition, the record
reflects that the law firm was even reduced to causing the issuance
of a subpoena for deposition to Quintero in order to compel his
appearance at his deposition scheduled for October 31, 1995.
Finally, we note that the difficulties with contacting Quintero
were experienced early on in this case since service of summons
upon Quintero in this case had to be effected through the Secretary
of State's office, after an attempt at personal service had failed
since Quintero was believed to have moved out of State.
Based upon the efforts outlined above and more fully set forth
in the law firm's affidavit, which is a part of the record before
us, we are of opinion that the trial court abused its discretion in
sanctioning the law firm in addition to Quintero. Other than the
trial court's concern that these efforts had not been communicated
to counsel for Hanson, there is no evidence based on which the
trial court could have found that the law firm deliberately impeded
the compliance with Hanson's discovery request or wilfully
disregarded the trial court's orders regarding discovery. Under
the circumstances in this case, the order for sanctions entered
against the law firm is unreasonable and unjust.
We therefore vacate, as to the law firm only, those orders of
the trial court requiring the law firm to pay $525 in attorney fees
as a sanction for noncompliance with discovery. The remaining
portions of the orders appealed from are affirmed.
Affirmed in part and vacated in part.
GEIGER and BOWMAN, JJ., concur.