dissenting:
I respectfully dissent. I believe a review of the record shows that the circuit court imposed sanctions pursuant to Rule 137. Rule 137 may be the basis for sanctions despite the lack of the rule’s specific mention in the order. Duignan v. Lincoln Towers Insurance Agency, Inc., 282 Ill. App. 3d 262 (1996). Here, although the circuit court did not set out its reasons for the sanctions in the written order, it did make its reasons for the sanction of dismissal and for attorney fees and costs more than clear on the record. The court made specific reference to the pleadings that contained the altered evidence, signed by counsel and filed in court. The court also specifically referenced Supreme Court Rule 137 (155 Ill. 2d R. 137) on the record. The court’s findings were expressly incorporated into the judgment order by reference.
“The decision to impose sanctions under Rule 137 is committed to the sound discretion of the circuit judge, and that decision will not be overturned unless it represents an abuse of discretion. [Citations.]” Dowd & Dowd, Ltd. v. Gleason, 181 Ill. 2d 460, 487 (1998). “[W]e must primarily determine whether the trial court’s decision was informed, based on valid reasons, and whether the decision followed logically from the application of the reasons stated.” Thomas Hake Enterprises, Inc. v. Betke, 301 Ill. App. 3d 176, 182 (1998).
Defendants Broadacre and Westminster argue that the “signing of pleadings” requirement under Rule 137 occurred when plaintiffs filed a response to defendants’ motion for summary judgment on February 6, 2002, signed by plaintiffs’ counsel. Copies of the five checks were attached as an exhibit to this pleading. Plaintiffs asserted in the response that the fronts and backs of the checks to Elegant were evidence of their payment for the replacement of the floor.
The majority correctly point out that the trial court was in error when it made a finding that submission of the altered checks “undermine[d] previous rulings on evidence during the course of the trial with witnesses that have already testified and left.” However, tendering the altered checks certainly had an impact on the denial of defendants’ motions for summary judgment and for more specific discovery and on the circuit court’s rulings on motions in limine.
Relying on section 3 — 407 of the Uniform Commercial Code (810 ILCS 5/3 — 407 (West 2000)), the majority assert “there was no alteration or fraud under the statute governing these matters.” 352 Ill. App. 3d at 763. During the discussion in chambers which took place shortly after the circuit court tendered copies of the five checks in question which did not contain the language “payment for the floor,” the circuit court pointed out that plaintiff had not disclosed to it or any prior court the fact that the checks had been altered. Plaintiffs counsel responded:
“[PLAINTIFF’S ATTORNEY]: I understand everything you’ve said, Your Honor. My only response in that regard is that the fact that these checks were altered in the manner they were, the facts are the facts. We can’t change that they were altered. But at no point was a representation made...
THE COURT: Counsel, was there a clarification made either to the court or to counsel?
[PLAINTIFF’S ATTORNEY]: No, there was not.”
The court subsequently continued:
“THE COURT: Counsel, I would like to also put on the record that when you and your client were in my chambers and we were talking and when all counsel were in chambers prior to jury selection and during discussions on this case, these checks were tendered to me. And they were shown to me. And they were referred to as, ‘see, it says here on the checks, payment for the floor.’ And, ‘see, here, judge, the dates correspond with the floor, and it says here noted his payment for the floor.’ ”
During that same discussion, plaintiffs counsel stated:
“[PLAINTIFF’S ATTORNEY]: I can’t say any more than I have already said about the checks. It’s a terrible thing. I wish that I had some knowledge of it because we wouldn’t be here today talking about it like this if I had some knowledge of it. But I didn’t.”
I do not believe that the majority’s reliance on the Code and the holding in Kramer v. Exchange National Bank of Chicago, 118 Ill. 2d 277 (1987), provide bases for reversing the circuit court in the instant case. Neither party asserted at trial, or before this court, that the Code had anything to do with this case. Further, Kramer addressed what effect an alteration made by the holder of a note had on the validity of the note. This is clearly the type of transaction over which the Code would control. In the instant case, plaintiff’s counsel conceded that the checks had been altered and the circuit court correctly found that both it and the previously assigned circuit court judge had made rulings regarding summary judgment, discovery and motions in limine based on plaintiffs’ counsel’s arguments which were themselves based on the alterations made to the checks. While plaintiff’s actions arguably were not violative of the Code, this fact has no bearing on the issue of whether tendering the altered checks was violative of Supreme Court Rule 137.
Finally, it is important to note that the copies of the five checks were the only documentary evidence in this case that purported to establish with any sort of clarity plaintiffs damages. Here, the original complaint sought damages “in excess of $60,000,” the plaintiff testified at his deposition that he paid $42,000 to replace the floor, the amended verified complaint sought $42,000, the five altered checks totaled $46,000. Plaintiffs’ successive counsel had fought defendants’ discovery requests for more documents relating to the amount paid for the repairs to the floor. As the circuit court’s decision was informed, based largely on valid reasons and the decision followed logically the application of the reasons stated, I would affirm the circuit’s dismissal of plaintiffs’ case.
The majority raise an excellent point regarding Mrs. Cirrincione’s interest in this lawsuit as providing another basis to reverse the circuit court’s dismissal. However, plaintiffs never raised this issue in the circuit court proceedings, nor did they raise this issue on appeal. As an argument not raised in the trial court, and presented for the first time on appeal is waived, I would find that plaintiffs waived this issue by failing to raise it at all. See Johnson Press of America, Inc. v. Northern Insurance Co. of New York, 339 Ill. App. 3d 864, 791 N.E.2d 1291 (2003).
The majority make some excellent suggestions as to alternative remedial actions which the circuit court could have taken rather than dismissal with prejudice. Similarly, plaintiffs’ trial counsel’s suggestion of instructing the jury pursuant to Illinois Pattern Jury Instructions, Civil, No. 5.01 (Supp. 2003) (Failure to Produce Evidence or a Witness) was also creative. To these suggestions I would add that the trial court could have granted a mistrial, with plaintiffs ordered to pay the costs and attorney fees incurred by defendants during the truncated trial. I am aware that trial courts are extremely reluctant to grant mistrials as they are perceived as resulting in a waste of effort and resources. However, as shown again in this case, courts of review are similarly reluctant to affirm the dismissal of lawsuits with prejudice as a sanction, except in the most extreme circumstances. The situation faced by the circuit court in the instant case is, unfortunately, an extremely common one. When a party violates the supreme court rules, the circuit court has discretion to formulate a remedy which should reflect the underlying purpose of the rule. Boland v. Kawasaki Motors Manufacturing Corp., USA, 309 Ill. App. 3d 645, 652-53, 722 N.E.2d 1234 (2000). The parties should assist the circuit court in this determination by suggesting workable solutions rather than merely asking for dismissal on the one hand, or arguing that no remedial action is needed on the other. To accomplish this, judges and attorneys should acquaint themselves with the various alternative remedies available. Of course, the best way to avoid this type of situation is for the parties to engage in full and timely discovery.
As I agree with the majority that this was a good-faith lawsuit, I would reverse the circuit court’s order granting defendants all of their attorney fees and I would remand this case for an evidentiary hearing as to this issue. Of course, this is yet another remedy which the plaintiffs did not request.