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Ruggiero v. Attore





APPEAL from the Circuit Court of Cook County; the Hon. DAVID A. CANEL, Judge, presiding.


An ex parte order was entered against the defendant, Mario Attore, by the circuit court of Cook County, finding that he had wilfully failed to comply with the court's previous discovery and warning orders, and, as sanctions, the court struck defendant's answer, entered judgment on the issue of liability for the plaintiff, and set the matter for prove-up on damages. Subsequently, an ex parte judgment was entered against the defendant for $125,000. Defendant's petition to vacate the order and judgment pursuant to section 50(5) of the Civil Practice Act (Ill. Rev. Stat. 1975, ch. 110, par. 50(5)) was denied. Defendant appeals the order denying his petition.

The plaintiff, Angelo Ruggiero, an attorney, purchased the defendant's dry cleaning business pursuant to an oral contract for $35,000. Prior to the purchase he had acted as defendant's attorney. On October 22, 1974, he filed a lawsuit alleging that defendant had induced him to make the purchase on the basis of certain material representations as to the quality and volume of the business and that, in fact, these representations were false. Plaintiff prayed for $95,000 as compensatory damages and $100,000 as punitive damages. On November 6, 1974, the original attorney for defendant filed his appearance as attorney of record, but filed no answer or other responsive pleading. Around the same time as the sale of the business, the defendant entered into a contract to sell the building in which the business was located to the plaintiff and another, which also resulted in a lawsuit, pending before Judge Covelli.

Plaintiff's attorney initiated discovery by serving a notice of deposition upon defendant's attorney on November 8, 1974, requiring the appearance of defendant for deposition on January 30, 1975, and further requesting that defendant produce various books, records, and other documents at the deposition. On November 15, 1974, plaintiff's attorney, in accordance with new supreme court rules, requested defendant to produce certain items for inspection or copying within a reasonable time. He sent the request to defendant's attorney. Later, plaintiff's attorney again wrote to defendant's attorney asking him to produce certain documents. On January 24, 1975, pursuant to an acknowledgment letter from defendant's attorney, plaintiff's attorney agreed to defer the discovery requests to a mutually convenient time. On February 10, 1975, defendant's attorney filed an answer to the complaint.

On February 20, 1975, plaintiff's attorney directed a letter to defendant's attorney stating that he had presented a compliance motion to Judge Jiganti who informed him that he would not enter the order without imposing sanctions or a fine and that an extension of an additional 28 days toward compliance was a private matter between the attorneys. On March 27, a notice of motion was sent to defendant's attorney specifying that plaintiff's attorney would appear before Judge Jiganti on March 31 and would present a motion for sanctions for failure to comply with discovery. Judge Bua heard the motion on that day and found that defendant had failed to comply with plaintiff's discovery requests. He ordered the defendant to deliver to plaintiff's attorney, within 14 days, an authorization permitting plaintiff to obtain a copy of defendant's income tax returns, and further ordered him to appear for a sanction hearing on April 17, 1975. Defendant was not present at the hearing. The authorization was not delivered by April 14, the deadline for compliance.

The following pertinent facts are alleged in defendant's petition to vacate which is supported by affidavits and supplemental affidavits. Around April 1, 1975, defendant engaged the services of a successor law firm to represent him in both the chancery and law matters. Substitution of attorneys was obtained on April 9 in the suit pending before Judge Covelli, but not in the instant case. On April 15, defendant's original attorney withdrew from the law case and delivered copies of the various pleadings and orders to the successor. The successor attorney first learned of Judge Bua's order on April 16 when he reviewed the copies which had been delivered to him the previous day. He examined the Law Bulletin of April 17 and discovered that the hearing was not scheduled. He telephoned plaintiff's attorney and spoke with his clerk, asking him to determine if the hearing would proceed that day. He had intended to file the substitution of attorneys at the scheduled hearing. The clerk returned the call and said that the motion would be rescheduled, and a copy of the notice would be mailed to him. The notice of motion rescheduling the hearing to April 21 was served on defendant's original attorney, and not on the successor.

Defendant's original attorney telephoned plaintiff's attorney and advised that he no longer represented the defendant. He suggested sending a notice of the hearing to the successor. Plaintiff's attorney said he would send a notice to the successor.

In the verified response to the petition, the clerk for plaintiff's attorney denied conversing with the successor attorney, and plaintiff's attorney denied the alleged substance of the conversation with the original attorney on April 17, and particularly denied that he agreed to send future notices to the successor. The successor submitted telephone company records to the court showing two calls on April 17: One call was made from the successor's office to plaintiff's attorney's office; the other call was made shortly thereafter from plaintiff's attorney's office to the successor's office.

On April 21, Judge Bua entered an ex parte order against defendant in response to defendant's wilful failure to comply with discovery requests and refusal to comply with the 14-day "warning" compliance order. He struck the defendant's answer, entered judgment on the issue of liability in favor of plaintiff, and awarded attorneys' fees to plaintiff.

On May 22, plaintiff served a notice of motion on defendant's original attorney informing him that plaintiff would appear before Judge Butler and would request assignment of the case for prove-up on May 26. The case was assigned to Judge Canel who, after an ex parte hearing on the issue of damages, entered judgment for the plaintiff in the sum of $125,000. Defendant's original attorney denied receiving any notice. In fact, he attests that the first time notice was given to him or his successor regarding Judge Canel's order was when the defendant informed the successor attorney that various banks and his employer had been served with garnishment summons.

On June 3, the successor served a notice and petition to vacate the judgment upon plaintiff's attorney, requesting him to appear before Judge Bua on June 6. The successor filed his substitution of attorneys on June 6 and presented the petition to Judge Bua. The judge ordered that it be transferred to Judge Canel.

In addition to the facts previously set forth, the petition also alleged that the successor attorney had met with plaintiff and his attorney regarding the chancery matter pending before Judge Covelli on April 9, April 29, April 30, and May 15, and at no time did the plaintiff or his attorney mention the entry of the order by Judge Bua on April 21 in the law action. The successor further alleged that he advised plaintiff's attorney that he represented defendant in the law action and that at the same time, negotiations took place between the parties relating to both matters. The petition also indicated a willingness to authorize the Internal Revenue Service to disclose the defendant's tax returns to the plaintiff.

The plaintiff filed his answer to the petition on June 30. Plaintiff's attorney admits the meetings, but claims he was under no legal duty to inform defendant of the order entered, and specifically denied that negotiations took place relating to the law action. On September 8, Judge Canel denied the petition to vacate his prior judgment of May 26 awarding damages to the plaintiff. He previously had refused to sit in review of Judge Bua's April 21 order.

Defendant appeals from the judgment and order entered by Judge Canel on May 26 and September 8, 1975, respectively, and the order ...

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