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Polowick v. Meredith Construction Co.

JULY 3, 1975.

LEE J. POLOWICK, PLAINTIFF-APPELLANT,

v.

MEREDITH CONSTRUCTION CO. ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Du Page County; the Hon. PHILIP F. LOCKE, Judge, presiding.

MR. JUSTICE DIXON DELIVERED THE OPINION OF THE COURT:

This is an appeal from an order of the Circuit Court of Du Page County, Illinois, which denied a petition of the plaintiff to compel discovery and dismissed the plaintiff's amended complaint with prejudice for want of prosecution, and from a subsequent order of that court which granted the defendants' motion to strike the plaintiff's petition to vacate the order of dismissal.

The plaintiff was Lee J. Polowick, special administrator for the estate of John M. Polowick, deceased, and for the estate of Catherine A. Polowick, deceased. The defendants were Meredith Construction Company, a corporation, Norman M. Schlossberg, and Guaranty Bank and Trust Company, a corporation. Originally John Polowick and Catherine A. Polowick were plaintiffs, but both of them later died, and Lee J. Polowick was then appointed special administrator for the two estates and substituted as plaintiff.

The complaint of John M. and Catherine A. Polowick, which they filed in 1962 in the Circuit Court of Du Page County, sought rescission of a contract for the sale of land to them with a residence to be constructed on it by Meredith Construction Company, the return of their down payment, and damages. They alleged that Guaranty Bank and Trust Company held title to the land as trustee, but Norman M. Schlossberg and other persons were the beneficial owners and had entered into a joint adventure or partnership to develop lots, build houses on them, and sell them to the general public. They alleged, further, that Meredith Construction Company was a sham corporation, had no resources of its own, and was a mere instrumentality of the joint adventurers. The complaint was withdrawn, with leave of court, and another complaint was filed; the latter was stricken, and an amended complaint filed in 1964; this was also stricken, and then on February 1, 1965, another amended complaint was filed. All the defendants filed answers before the end of 1965 denying the allegations in the complaint as last amended.

On July 17, 1968, the plaintiffs filed a motion for discovery, seeking production of specified documents relating to the purchase and development of the land sold to them and for the construction and financing of the house built on it, and also specified documents pertaining to Meredith Construction Company. Their motion was granted on that date. On October 24, 1968, the trial court entered an order providing that the documents were to be produced within 30 days. On January 12, 1970, the original plaintiffs having died, the present plaintiff was substituted, and he filed a petition for a rule to show cause for the defendants' failure to produce documents as previously ordered. On February 20, 1970, the trial court ordered that the defendants produce documents as provided in its order entered October 24, 1968. On April 23, 1970, the present plaintiff filed another petition for a rule to show cause, on which an order was entered May 14, 1970, calling for production of documents within 5 days. On July 7, 1970, the plaintiff moved to reinstate his petition of April 23, 1970, but the court denied his motion on the representation of the defendants that all documents requested had been produced. On August 5, 1970, the deposition of Norman M. Schlossberg was taken, pursuant to notice which again specified documents to be produced relating to the land, the house, and Meredith Construction Company. On January 1, 1971, Meredith Construction Company filed a counterclaim.

On September 28, 1972, the deposition of Norman M. Schlossberg was again taken, pursuant to notice which again called for the production of documents pertaining to the land and house and financial records relating to Meredith Construction Company. Mr. Schlossberg produced various items, one of which was a ledger book entitled "Meredith Construction Company" on its cover. It was marked Exhibit 16. Mr. Schlossberg was then questioned about some of the pages in the book. He identified them as records of money borrowed for the purchase of land and amounts later paid back by Meredith Construction Company. The attorney for the plaintiff then indicated that he wanted his secretary to make copies of the various pages comprising Exhibit 16. He also asked that the various sheets be individually marked by the court reporter, as Exhibits 17a, 17b, 17c, and so on. Mr. Schlossberg's attorney at this point said: "Wait a while, I am going to take this out," and took some of the pages out of the book and put them into his briefcase. The record then shows this colloquy:

"Mr. Lopez: I think the record ought to indicate that counsel is taking certain pages out of that Exhibit right now.

Mr. Haft: That's right.

Mr. Lopez: Pages which have been identified by Mr. Schlossberg as remaining, relating to the payments made for the land and made by Meredith Construction Company in this case.

Mr. Haft: Okay.

Mr. Lopez: Now, counsel, I call on you to bring those Exhibits back right now.

Mr. Haft: I will not bring them back.

Mr. Lopez: And I want you to let the court reporter mark those Exhibits. I want this to happen right now, counsel. Mr. Haft, are ...


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