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North Park Bus Service, Inc. v. Pastor

OPINION FILED JUNE 7, 1976.

NORTH PARK BUS SERVICE, INC., PLAINTIFF-APPELLANT,

v.

LOUIS PASTOR, D/B/A LOUIS PASTOR & COMPANY, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. NATHAN COHEN, Judge, presiding.

MR. JUSTICE O'CONNOR DELIVERED THE OPINION OF THE COURT:

This is an appeal from two orders of the circuit court of Cook County, chancery division. The first of these was entered August 8, 1975, pursuant to Supreme Court Rule 219. It directed plaintiff, North Park Bus Service, Inc. (North Park) to pay defendant, Louis Pastor d/b/a Louis Pastor & Company (Pastor) $100 as a sanction for failing to comply with a discovery order of the court. The second order was entered August 28, 1975. It denied plaintiff's motion for dismissal without prejudice which had been filed August 12, 1975, pursuant to section 52 of the Civil Practice Act (Ill. Rev. Stat. 1973, ch. 110, par. 52). In addition, the court granted defendant's subsequent motions for summary judgment and attorney fees pursuant to Rule 219.

On June 18, 1974, North Park filed a complaint in chancery against the Chicago Board of Education and Pastor. In this complaint North Park charged the Board with wrongfully denying it a transportation contract. In addition, Pastor, an insurance agent, was charged with failing to issue North Park a bond to accompany its bid to the Board.

Shortly thereafter defendants, Board of Education and Pastor, filed separate motions to dismiss the complaint under section 45 of the Illinois Civil Practice Act (Ill. Rev. Stat. 1973, ch. 110, par. 45) and motions for summary judgment under section 57 (Ill. Rev. Stat. 1973, ch. 110, par. 57). On October 28, 1974, the court granted defendants' motions to dismiss. However, North Park was given leave to amend its complaint against Pastor.

On November 8, 1974, North Park filed its first amended complaint and again Pastor filed a motion to dismiss and a motion for summary judgment. On February 18, 1975, Count I of the amended complaint was dismissed with prejudice. Count II of the complaint also was dismissed; however, North Park again was given leave to amend.

On March 10, 1975, North Park filed its second amended complaint. On April 4, 1975, Pastor moved for summary judgment, supported by memorandum, exhibits and affidavit. The court held a hearing and on June 12, 1975, entered an order denying defendant's motion for summary judgment without prejudice to renewal, but granting Pastor priority in discovery. In addition, the order set the cause down for trial on October 8, 1975.

On July 3, 1975, Pastor moved for an order compelling North Park to produce certain documents. This motion was granted on July 15, 1975, and North Park was ordered to comply within five days. Plaintiff did not comply and on August 4, 1975, Pastor moved for the imposition of sanctions. On August 8, 1975, the court granted this motion and ordered North Park to pay Pastor $100 in attorney fees and to comply with its original order by producing the documents and affidavit sought by defendant. On August 13, 1975, North Park moved to dismiss its action without prejudice. On August 20, 1975, defendant filed an answer to the second amended complaint and, in a separate motion, asked the court for summary judgment of dismissal with prejudice.

By an order entered August 28, 1975, the trial court denied plaintiff's motion for dismissal without prejudice and granted defendant summary judgment. Further, as a sanction pursuant to Supreme Court Rule 219, the court allowed defendant his attorney's fees, expenses and court costs in the amount of $5,421.34.

Plaintiff on this appeal asks that we reverse this order, as well as the order of August 8, 1975.

We affirm the order of August 8, 1975, and reverse the order of August 28, 1975.

• 1 First, North Park argues that the entry of the order of August 8, 1975, constituted an abuse of discretion by the trial court. Although it concedes it did not fully comply with the trial court's discovery order entered July 15, 1975, North Park contends it could not be penalized under Rule 219 for this failure in the absence of proof that it had unreasonably refused to obey that order.

Supreme Court Rule 219(c) provides in part:

"(c) Failure to Comply with Order or Rules. If a party, or any person at the instance of or in collusion with a party, unreasonably refuses to comply with any provision of Rules 201 through 218, or fails to comply with any order entered under these rules, the court, on motion, may enter, in addition to remedies elsewhere specifically provided, such orders as are just, including, among others, the following: * * *

In lieu of or in addition to the foregoing, the court may order that the offending party or his attorney pay the reasonable expenses, including attorney's fees, incurred by any party as a result of the misconduct, and by contempt proceedings compel obedience by any party or person to ...


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