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Payne v. Coates-miller

OPINION FILED JANUARY 18, 1979.

MARY PAYNE ET AL., PLAINTIFFS-APPELLEES,

v.

COATES-MILLER, INC., DEFENDANT. — (WILLIAM HENNING RUBIN, RESPONDENT-APPELLANT.)



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

MR. JUSTICE LINN DELIVERED THE OPINION OF THE COURT:

Following a hearing in the circuit court of Cook County, William Henning Rubin, attorney for defendant, Coates-Miller, was held in criminal contempt of court and fined $1,000 for willfully impeding the progress of pretrial discovery. Rubin appeals, contending: (1) the trial court lacked jurisdiction to entertain the rule to show cause petition; (2) the trial judge should have recused himself from the contempt proceedings; and (3) the evidence demonstrates that his conduct was not contemptuous.

We affirm the judgment of the trial court.

On October 31, 1975, a class action complaint was filed against defendant, Coates-Miller, on behalf of plaintiff, Mary Payne, both individually and as a representative of all other tenants residing in buildings managed and operated by defendant. The complaint challenged Coates-Miller's practice of assessing costs and attorney fees against a tenant for late rental payments, before Coates-Miller had successfully litigated a forcible entry and detainer action against the tenant.

On June 17, 1976, plaintiffs mailed a notice of deposition to William Henning Rubin, Coates-Miller's attorney of record. *fn1 The notice informed Rubin that the deposition of Harrison Daniels, an employee of Coates-Miller, would be taken on June 29. The notice also requested that Daniels produce certain specified documents at his deposition.

On June 24, Rubin informed Nancy Collins, one of plaintiffs' attorneys, that the June 29 date for Daniels' deposition was out of the question. When asked for an alternative date, Rubin simply told Ms. Collins that she "would be lucky to get discovery within a year or a year and a half."

On July 7, plaintiffs filed a motion to compel discovery. Following a hearing, the trial judge ordered Daniels to appear in court on July 13 for the taking of his deposition. Daniels, however, left the City of Chicago July 11 on a trip to Mexico and did not appear for his July 13 deposition as ordered. Plaintiffs were given no advance notice that Daniels would not appear.

On July 14, plaintiffs filed a second motion to compel discovery. Following a hearing, the trial court ordered Daniels to produce by July 28 the documents plaintiffs had previously requested and to appear in court for the taking of his deposition on August 4.

Plaintiffs also filed on July 14 a motion for preliminary injunction. The injunction sought to enjoin Coates-Miller's practice of assessing expenses and attorney fees against tenants for late rental payments, before Coates-Miller had successfully litigated a forcible entry and detainer action against them. The preliminary injunction was granted.

On July 21, Coates-Miller filed a notice of appeal from the interlocutory order granting plaintiffs the preliminary injunction. (See Ill. Rev. Stat. 1975, ch. 110A, par. 307(a)(1).) *fn2 During the pendency of that appeal, the discovery procedures with regard to the merits of this case continued at the trial level.

Daniels returned from his vacation to Mexico on July 26. Nevertheless, he did not produce by July 28 the documents plaintiffs had requested, and he did not appear for his court-ordered deposition on August 4.

The trial court issued a rule to show cause why Daniels should not be held in contempt of court for his alleged willful failure to comply with both the July 7 and July 14 discovery orders. At his rule-to-show-cause hearing, Daniels testified that Rubin had never informed him of any scheduled depositions or of any order to produce documents:

"Q. Have you ever discussed with your attorney Mr. Rubin or with anybody else the fact that you had been asked to appear in a deposition in this case?

A. No.

Mr. Mazur: * * * [D]id Mr. Rubin ever make you aware of an Order of this Court on July 7th that you were to appear at a deposition on July 13th in this courtroom?

A. No.

Q. Did Mr. Rubin ever make you aware of an Order of this Court issued on July 14th, 1976 that you were to give to plaintiffs' attorneys by July 28th documents listed in plaintiffs' Exhibit 1?

The Witness: No."

In light of this testimony, the rule to show cause which was issued against Daniels was dismissed.

On August 20, plaintiffs petitioned the trial court to issue a rule to show cause why Rubin, as Coates-Miller's attorney, should not be held in contempt of court for willfully impeding the progress of pretrial discovery by violating the court's discovery orders of July 7 and July 14. Following a hearing on plaintiffs' petition, the trial court issued the rule to show cause against Rubin. The rule-to-show-cause hearings were held on December 30, 1976, and on February 2 and 3, 1977. Rubin was represented by counsel at these hearings.

The first witness called by plaintiffs at the hearings was attorney Nancy Collins. Ms. Collins testified that on June 24, 1976, she talked with Rubin about Daniels' June 29 deposition. Rubin informed her that the deposition could not go ahead as it was incompatible with his (Rubin's) schedule. Ms. Collins testified further:

"I asked Mr. Rubin about alternative dates within the relative period around the middle to the end of June or the beginning of July and Mr. Rubin said ...


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