dissenting:
I cannot agree with my colleagues that it was error to dismiss defendant’s counterclaim as a sanction for failing to comply with orders of the trial court relating to discovery. The majority opinion has overlooked some pertinent facts and has, in my view, preempted the decision-making authority of the trial court in complete disregard for the basic principle of appellate review, that the party claiming error has the burden of establishing that error occurred. Error is never presumed by the reviewing court but must be affirmatively shown by the record. Flynn v. Vancil (1968), 41 Ill. 2d 236, 242 N.E.2d 237.
Henry Hoffmann was president of defendant corporation at the time of the transactions between the plaintiffs and defendant, and Hoffmann personally communicated to the Spillers notice that the plant was not in compliance with environmental laws of Illinois. By the time this lawsuit reached the discovery stage, Henry Hoffmann had retired.
The following chronology of events is relevant to this appeal:
1. August 9,1979 — Case was set for trial on June 30, 1980.
2. March 17, 1980 — Plaintiff served interrogatories and a request to produce upon defendant.
3. June 20,1980 — Plaintiff filed a motion for sanctions for defendant’s failure to furnish discovery. A hearing was held, and various orders were entered.
4. June 23, 1980 — Upon motion of defendant for substitution of judge, case was assigned to Judge Hoffman, who ordered trial reset for March 30, 1981, with all discovery to be concluded by February 1, 1981, “no exceptions.”
5. October 23,1980 — Plaintiffs filed a second motion for sanctions.
6. November 18,1980 — Defendant was ordered to furnish additional answers.
7. January 13,1981 — Defendant’s counsel wrote to plaintiffs’ attorney supplying supplemental answers to interrogatories (unverified) and stating that counsel would “make the necessary arrangements” for the discovery deposition of Henry Hoffmann “as has been discussed.”1
8. February 2, 1981 — Plaintiffs filed a third motion for sanctions.
9. March 10, 1981 — Parties apparently agreed to the depositions of three persons, including Henry Hoffmann, on March 21,1981, in Pennsylvania.
10. March 12, 1981 — Notices of these three discovery depositions were filed.
11. March 16, 1981 — Defendant’s counsel informed plaintiffs’ attorney that of the three witnesses to be deposed, Henry Hofmann would never be available and the other two would only be available between March 23 and 25,1981.
12. March 19, 1981 — Plaintiffs filed a fourth motion for discovery sanctions, and the court ruled: “Either these discovery depositions go forward as originally agreed on March 21, or your counterclaim will be dismissed.” (Emphasis added.)
13. March 30,1981 — The dismissal order was entered.
In reversing the dismissal of the counterclaim, the majority relies upon the fact that the record does not contain a transcription of any oral agreement by defendant to produce Henry Hofmann. The majority does not mention that the trial court stated for the record that defendant, in order to avoid sanctions, agreed on March 10 in chambers to produce Hofmann on March 21 for a deposition. That statement by the court is corroborated in the record by the notice which was sent to Hofmann on March 12 and by an earlier letter from defendant’s counsel stating that arrangements for Hofmann’s deposition would be made. The burden is on defendant to show by positive evidence that the trial court was wrong and that defendant did not agree to produce Hofmann. Defendant has made no such showing, and I believe the finding of the trial court is sufficiently supported in the record to be affirmed. I must decline to substitute my judgment for that of the trial court.
I also wish to state that I do not agree that plaintiffs abused the discovery process by seeking sanctions for this out-of-State defendant’s noncompliance with discovery requests. Far from being a “legal artifice,” a motion for sanctions is the appropriate remedy to use when confronted with an opponent who uses delaying tactics to gain additional time on the eve of trial. When one party refuses to provide discovery, the trial judge is supposed to “become the catalyst” for compelling compliance, as was properly done here.
I believe plaintiffs’ actions here were appropriate to protect their interest in preparing adequately for trial and to prevent defendant from delaying the case in defiance of court orders. The experienced and respected trial judge concluded that defendant has “so flaunted the jurisdiction of this court that the process of judicial administration in this case had completely broken down and failed.” (March 30, 1981, dismissal order.) Such a grave finding should not be treated lightly, especially when supported by a record showing a pattern of delays in furnishing discovery over a period of more than a year.
Finally, I would note that the absence of affidavits accompanying plaintiffs’ motions for sanctions was not raised in the trial court, and any such error was, therefore, waived for purposes of review. Fullerton v. Robson (1978), 61 Ill. App. 3d 93, 377 N.E.2d 1044.
Since I would affirm the dismissal of the counterclaim, the factual issues raised by the counterclaim would be eliminated. Therefore, summary judgment for the plaintiffs would not be erroneous. I would also affirm the judgment for plaintiffs.
This letter is a part of some material which defendant has sought to file in this court pursuant to a motion to amend the record on appeal. That motion was taken with the case and should have been granted since the material is relevant. It is the record of defendant’s agreement to furnish Hofmann for a deposition.