No. 2--96--0508
________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
________________________________________________________________
JERRY CHABOWSKI, ) Appeal from the Circuit Court
) of Lake County.
Plaintiff-Appellant, )
) No. 94--L--1604
v. )
)
VACATION VILLAGE ASSOCIATION, )
ROBERT DePAUW, and FRANK HAUSER, ) Honorable
) Bernard E. Drew, Jr.,
Defendants-Appellees. ) Judge, Presiding.
________________________________________________________________
JUSTICE RATHJE delivered the opinion of the court:
Plaintiff, Jerry Chabowski, appeals the dismissal with
prejudice of his complaint against defendants, Vacation Village
Association, Robert DePauw, and Frank Hauser. Plaintiff raises the
following issues for our consideration: (1) whether the court
committed procedural error by not specifying the reasons for the
dismissal; (2) whether the dismissal was an abuse of discretion;
and (3) whether the court erred in awarding defendants attorney
fees of $375. We affirm.
Plaintiff filed a complaint against defendants, alleging
breach of an employment contract, lost wages, libel, slander, and
intentional interference with contractual relations. On April 11,
1995, the case was dismissed for want of prosecution. Plaintiff
then filed a "motion to vacate default judgment," although no
default judgment had been entered. The court struck plaintiff's
motion when neither plaintiff nor his attorney appeared at the
hearing on the motion. Plaintiff then refiled his still
incorrectly titled motion. On June 5, 1995, the court granted
the motion and vacated the dismissal order.
On November 8, 1995, defendants filed a motion to compel
plaintiff's deposition within seven days. In the motion,
defendants stated that plaintiff's deposition had been scheduled
for October 27, but that plaintiff's attorney, Robert Emery,
cancelled it the day before. The parties agreed to reschedule the
deposition for November 2, but on that day defendants' attorneys
contacted Emery and found out that plaintiff would again not be
appearing. Emery failed to contact defendants' attorneys to
reschedule, and defendants asked the court to compel plaintiff to
give his deposition within seven days. The court ordered
plaintiff to give the deposition within 19 days.
On December 5, 1995, defendants moved to dismiss with
prejudice plaintiff's complaint because of plaintiff's failure to
comply with discovery. In the motion, defendants pointed out that
plaintiff had twice again failed to show up for his deposition
within the court's 19-day deadline. Defendants argued that, when
plaintiff failed to show up on November 22, their attorneys called
Emery's office and found out that plaintiff would not be appearing
and that Emery had faxed a cancellation letter the night before.
Defendants then rescheduled the deposition for December 4, the
nineteenth day, but gave Emery the option of suggesting a different
date if that one was not satisfactory. Plaintiff failed to appear
for his deposition on December 4. Defendants asked the court to
dismiss the complaint with prejudice as a sanction pursuant to
Supreme Court Rule 219(c)(v) (Official Reports Advance Sheet No. 20
(September 27, 1995), R. 219(c)(v), eff. January 1, 1996).
Neither plaintiff nor Emery appeared at the hearing on the
motion to dismiss, and the court granted the motion. Plaintiff
then filed a motion to vacate, arguing that he had arrived 15
minutes too late for the hearing. The court granted the motion,
but awarded defendants $375 in attorney fees. The court gave
plaintiff 14 days to respond to the motion to dismiss, gave
defendants 7 days to reply, and set the matter for hearing on
March 18, 1996. The hearing was continued to March 27, at which
time the court granted defendants' motion to dismiss with
prejudice.
On appeal, plaintiff first argues that the court committed
procedural error by not indicating in writing the reasons for its
decision. Plaintiff points out that a recent amendment to Rule 219
provides in part:
"Where a sanction is imposed under this paragraph (c),
the judge shall set forth with specificity the reasons and
basis of any sanction so imposed either in the judgment order
itself or in a separate written order." Official Reports
Advance Sheet No. 20 (September 27, 1995), R. 219(c), eff.
January 1, 1996.
This requirement became effective approximately three months before
the judge entered the dismissal order. However, case law has
imposed a similar requirement. Plaintiff cites Spiegel v.
Hollywood Towers Condominium Ass'n, 283 Ill. App. 3d 992 (1996),
Walton v. Throgmorton, 273 Ill. App. 3d 353 (1995), and Martinez v.
Pfizer Laboratories Division, 216 Ill. App. 3d 360 (1991), for the
proposition that, when a court dismisses a cause of action as a
discovery sanction, it must specify the grounds upon which it is
basing the dismissal.
Spiegel involved monetary sanctions under Supreme Court Rule
137 (155 Ill. 2d R. 137), not a dismissal pursuant to Rule 219(c).
The court did not reverse the sanctions, finding that the
transcript showed that the trial judge had articulated the basis
for the sanctions. In Walton, the court dismissed a cause of
action as a discovery sanction, but the defendant had not asked it
to do so. The appellate court could not find sufficient support in
the record for the decision and therefore reversed. In Martinez,
the trial court dismissed plaintiff's complaint as a discovery
sanction, and the appellate court reversed, finding the trial
judge's decision was not supported by the record. The court stated
that "a trial court cannot choose the more drastic path of
dismissing a claim without giving specific reasons subject to
review." Martinez, 216 Ill. App. 3d at 374-75.
Here, the trial court did not state reasons for the dismissal,
but the dismissal order was entered pursuant to a written motion by
defendants. Thus, we can assume that the reasons for the dismissal
are those set out in defendants' motion. Further, the dilatory
conduct of plaintiff's counsel is apparent from the record.
Plaintiff chose not to file any reports of proceedings or to
prepare a bystander's report, and therefore we cannot determine if
the trial judge discussed the reasons for its decision at the
hearing on the motion to dismiss. The appellant has the burden to
present a sufficiently complete record of the proceedings at trial
to support a claim of error, and, in the absence of such a record
on appeal, it will be presumed that the order entered by the trial
court was in conformity with the law and had a sufficient factual
basis. Foutch v. O'Bryant, 99 Ill. 2d 389, 391-92 (1984). Any
doubts arising from the incompleteness of the record will be
resolved against the appellant. Foutch, 99 Ill. 2d at 392.
Although we recognize that Rule 219(c) requires the court to state
its reasons in writing, we do not believe that the failure of the
court to do so is per se reversible error, particularly where, as
here, the trial court's order grants a written motion that spells
out the reasons for the dismissal and those reasons are supported
by the record.
We next consider the merits of the trial court's decision to
dismiss plaintiff's case with prejudice. We initially note that we
will reverse the trial court's decision to impose a particular
sanction only when the record establishes an abuse of discretion.
American Family Insurance Co. v. Village Pontiac-GMC, Inc., 223
Ill. App. 3d 624, 627 (1992). The supreme court held in Sander v.
Dow Chemical Co., 166 Ill. 2d 48, 67-68 (1995), that dismissing a
cause of action with prejudice is a drastic sanction that should
be employed only when other enforcement actions have failed.
Further, the court explained that a court should dismiss a cause of
action for a party's failure to abide by a court's orders only when
the party has shown a "deliberate and contumacious disregard for
the court's authority." Sander, 166 Ill. 2d at 68. In Sander, the
supreme court held the dismissal was proper because the plaintiffs
had violated four court orders setting deadlines for amended
pleadings, failed to reply to a motion for a protective order, and
continually repleaded matters that had been stricken.
Plaintiff suggests that a party must violate more than one
court order before the court may rely on a dismissal with prejudice
as a sanction. We disagree. Sander requires only that a party
demonstrate a deliberate and contumacious disregard for the court's
authority. The type of conduct that can evince a deliberate and
contumacious disregard for the court's authority is obviously
varied and will differ from case to case. However, Sander also
explained:
"Where it becomes apparent that a party has willfully
disregarded the authority of the court, and such disregard is
likely to continue, the interests of that party in the lawsuit
must bow to the interests of the opposing party." Sander, 166
Ill. 2d at 69.
We believe this is such a case.
Plaintiff's counsel has shown a disregard for the court's
authority throughout the lawsuit. The lawsuit was originally
dismissed for want of prosecution when plaintiff's attorney failed
to show up for a progress call. Plaintiff then moved to vacate the
dismissal and set the matter for a hearing, but then failed to show
up for the hearing, and his motion was stricken. After the cause
was reinstated, plaintiff twice cancelled his deposition.
Defendants sought the court's assistance in compelling plaintiff's
deposition. The court gave plaintiff 19 days to give his
deposition, and plaintiff cancelled two more times within the 19-
day period. Defendants then moved to dismiss, and the cause was
dismissed when plaintiff's attorney failed to show up at the
hearing. The court then agreed to vacate the dismissal and set the
matter for a hearing, but sanctioned plaintiff's counsel by
ordering him to pay $375 in attorney fees to defendants. After a
hearing, the court agreed that the cause should be dismissed with
prejudice. Thus, it was not just that the plaintiff violated one
court order, but that he showed a lack of respect for the court's
authority by continually failing to show up for court and by
failing to comply with discovery. Once he failed to show up for
the hearing on his own motion to vacate a dismissal. Plaintiff's
counsel's conduct was consistent throughout this cause, and there
was no reason for the trial court to assume that it would improve.
Plaintiff's counsel showed a deliberate and contumacious disregard
for the court's authority, and we find no abuse of discretion by
the trial court.
Finally, plaintiff argues that his attorney should not have
been sanctioned $375 for attorney fees. Defendants respond that
plaintiff does not have standing to appeal a sanction entered
solely against his attorney. Plaintiff relies on a fifth district
case, Dunaway v. Ashland Oil, Inc., 189 Ill. App. 3d 106, 109-10
(1989), for the proposition that a reviewing court will consider
such an appeal and will join the attorney as a party appellant.
However, plaintiff fails to mention that Dunaway explained that it
declined to follow a second district case, Sherman Hospital v.
Wingren, 169 Ill. App. 3d 161 (1988). The rule we have applied in
this district is that a party does not have standing to appeal an
award of sanctions imposed solely against his attorney. Sherman,
169 Ill. App. 3d at 165; see also Northern Trust Co. v. Brentwood
North Nursing & Rehabilitation Center, Inc., 225 Ill. App. 3d 1039,
1041 (1992)(plaintiff lacks standing to argue relating to detriment
suffered by its attorneys when attorneys did not file notice of
appeal). Therefore, we conclude that plaintiff does not have
standing to argue the sanction imposed against his attorney.
The judgment of the circuit court of Lake County is affirmed.
Affirmed.
INGLIS and BOWMAN, JJ., concur.