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Coutrakon v. Distenfield

APRIL 14, 1959.

ISABELLE H. COUTRAKON, PLAINTIFF-APPELLEE,

v.

BERNARD DISTENFIELD, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Sangamon county; the Hons. DeWITT S. CROW and CREEL DOUGLASS, Judges, presiding. Affirmed.

PRESIDING JUSTICE ROETH DELIVERED THE OPINION OF THE COURT.

On September 12, 1956, plaintiff filed a complaint to recover a real estate broker's commission. Thereafter on October 29, 1956, defendant filed his motion to make the complaint more definite and certain in five specified particulars. The events following the foregoing give rise to the controversy in this case. The record shows that during April of 1957 the attorneys for plaintiff contacted one of the attorneys for defendant who was handling the case for defendant and advised him that attorneys for plaintiff desired to take the discovery deposition of defendant and suggested 10 different days extending from the middle of April to the middle of May for defendant's voluntary appearance for deposition, the day to be selected to meet the convenience of defendant and his attorney. Following this conversation the attorney for defendant wrote his client, who lives in Chicago, and received a reply from him saying "that he didn't intend to be in Springfield at any time in the near future." It is not clear as to whether or not this reply was communicated to plaintiff's attorneys. At any rate, on May 21, 1957, plaintiff's attorneys served written notice on defendant's attorneys to take defendant's deposition on June 7, 1957. The record casts some doubt on whether the defendant was ever notified by his attorneys of this notice. Neither defendant nor his counsel appeared at the appointed time and place for the taking of the discovery deposition.

On June 11, 1957, plaintiff filed a verified motion setting up the foregoing and moving that defendant be debarred from filing any further pleadings, that the pleadings already filed be stricken and that judgment be entered for the amount claimed to be due. This motion came on for hearing on July 1, 1957, at which time counsel for defendant obtained leave to file written opposition to the motion for judgment. No written opposition was filed. The motion proceeded to hearing and the foregoing facts were developed on the hearing. The trial judge was of the opinion that it was not clear whether the factual situation as thus developed would justify a finding of wilful failure to comply with the notice and accordingly denied the motion. Apparently, at this hearing defendant agreed to comply with the notice and to submit to the taking of his deposition on July 17, 1957.

On August 30, 1957, plaintiff filed a statement making her complaint more specific as requested by defendant's motion of October 29, 1956. This statement appears to furnish the information requested by the motion.

The next proceeding that appears in this record is the filing of a petition by defendant for an order that his deposition not be taken. This petition alleges that defendant submitted to discovery deposition on July 16, 1957; that thereafter on August 30, 1957, he was notified to appear on September 20, 1957, for further discovery deposition and to produce at that time "trust agreement, evidence of title and beneficial interests thereunder, and assignments thereof, books of account and records, correspondence, papers, reports or instruments pertaining to Ann Rutledge Apartments, Springfield, Illinois" (which is the apartment building plaintiff claims to have been employed to sell and for a sale of which the commission is claimed); that a notice and subpoena duces tecum was served on a trust officer of the Southmoor Bank and Trust Co. to also appear for deposition on September 20, 1957, and to produce "the original trust agreement, together with any and all assignments, power of attorney, papers, correspondence, books of account, reports, documents and written or printed evidence pertaining to said trust, trust agreement, trust property, corpus, ownership, title and beneficial interest thereof, including Bernard Distenfield's interest, if any," to the Ann Rutledge Apartments; and that further taking of defendant's deposition would be an annoyance, embarrassment and oppression. On September 16, 1957, this petition came on for hearing and was denied. The deposition hearing originally scheduled for September 20, 1957, was continued at the request of counsel for defendant until October 7, 1957. On that day at 1:30 p.m. the taking of defendant's discovery deposition proceeded as a continuation of the discovery hearing of July 16, 1957. A transcript of a portion of the questions and answers at this hearing appears in the record before us. From an examination thereof we are able to discern that one of the questions of fact in the case was the ownership of the Ann Rutledge Apartments and the authority of defendant to offer for sale or to sell said property. Hence the notice to produce documents heretofore noted.

From a reading of the partial deposition transcript it appears that at the deposition hearing defendant assumed the role of an obstructionist to discovery. Many of his answers to questions were evasive and within the category of "double talk." On several occasions his only answer to questions was "It makes no difference." At 4:05 p.m. counsel for defendant announced that he and defendant were leaving the deposition hearing and that they were not staying any longer. Defendant concurred in this announcement. Counsel for plaintiff announced that they were not yet through with the deposition hearing and requested a time when defendant and his counsel would return to continue the hearing. In response counsel for defendant requested that counsel for plaintiff set the time. Thereupon counsel for plaintiff suggested that they continue the discovery deposition hearing until 5:00 p.m. and resume at 9:00 a.m. the next morning. Counsel for defendant declined on the ground "I cannot do that." Whereupon counsel for plaintiff requested counsel for defendant to set the time when he and defendant would be present to resume the hearing. The request was unanswered.

As to the production of documents which defendant was notified to produce, the following occurred after defendant and his counsel had announced that they would not continue with the deposition hearing:

"Mr. Basil Coutrakon: What about the books of record pertaining to the Ann Rutledge? Do you refuse to bring those?

Mr. DeBoice: We have them here.

Mr. Basil Coutrakon: You have the notice. He was told to bring those records. Are they here?

Mr. DeBoice: No documents other than the documents pertaining to title. The certificate of beneficial interest and trust were produced, and the assignments.

Mr. Basil Coutrakon: That is all you produced?

Mr. DeBoice: You have the other proof here.

Mr. Basil Coutrakon: That is all you have?

Mr. DeBoice: That is all.

Mr. George Coutrakon: That is all you will produce?

Mr. DeBoice: That is all.

Mr. George Coutrakon: You are ...


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