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Bailey v. Twin City Barge & Towing Co.





APPEAL from the Circuit Court of Madison County; the Hon. VICTOR J. MOSELE, Judge, presiding.


Mr. JUSTICE KUNCE delivered the opinion of the court:

Plaintiff appeals from a judgment of the Circuit Court of Madison County dismissing her cause of action for failure to comply with defendant-appellee's request for discovery.

In January 1975, the plaintiff brought suit under the Jones Act (33 U.S.C. § 901 (1970)) for damages allegedly suffered from an injury received while she worked on defendant's vessel. After various motions, hearings, and orders with respect to the pleadings, defendant's answer was filed in July 1975. Discovery was commenced on July 25, 1975, by defendant's service of interrogatories. Plaintiff's answers to interrogatories were filed October 28, 1975.

It appears from the record that a notice of pretrial conferences for jury trials docketed for September and October of 1976 was sent to the parties on July 6, 1976. This suit was included in that docket. On August 11, 1976, defendant served upon plaintiff a request to produce and filed a motion to compel answers to its earlier interrogatories, asserting that certain of plaintiff's answers thereto had been unresponsive. Defendant apparently was readying its defense for the upcoming jury trial.

It next appears that on October 6, 1976, defendant wrote a letter to plaintiff's counsel requesting that plaintiff comply with its request to produce within 10 days, failing which it would file a motion to compel compliance. Plaintiff failed to respond or comply. On October 28, 1976, a motion to compel was duly filed and served by the defendant. On November 1, 1976, the court entered an order to the effect that plaintiff's cause of action was dismissed unless plaintiff complied with discovery within seven days. The order, which was mailed to counsel, specifically stated that if plaintiff complied with discovery within seven days the order was to be automatically vacated. Plaintiff failed to comply as ordered.

Plaintiff argues that the trial court abused its discretion by its order of dismissal. She contends that the court's sanction of dismissal was a penalty rather than a means of furthering discovery and that the dismissal was too severe a sanction given the circumstances.

• 1 Although we believe the dismissal order is not properly in issue in this appeal for the reason that notice of appeal of that order was untimely, we nevertheless have considered the issue and find the dismissal order free from error. Supreme Court Rule 219(c) (Ill. Rev. Stat. 1977, ch. 110A, par. 219(c)) provides that if a party unreasonably refuses to comply with discovery rules, the court may enter "such orders as are just," thereafter specifying a number of sanctions which such an order might include. Rule 219(c)(v) provides that "a judgment by default [may] be entered against the offending party or that his suit [may] be dismissed with or without prejudice." Our scope of review is limited to whether the sanction ordered below was an abuse of the court's discretion. Finfrock v. Eaton Asphalt Co. (1976), 41 Ill. App.3d 1020, 355 N.E.2d 214, 218.

In determining whether the trial court's sanction of dismissal was an abuse of discretion we look to People ex rel. General Motors Corp. v. Bua (1967), 37 Ill.2d 180, 196, 226 N.E.2d 6, 16, for the supreme court's guideline to imposing such sanctions:

"`The sanctions the court may impose are such as are suitable and necessary to enable the party seeking discovery to obtain the objects of discovery he seeks but the court may not impose sanctions which are designed not to accomplish the objects of the discovery but to impose punishment.'"

• 2 Applying this test to the court's dismissal order, we note that this cause was being readied for an approaching trial date by the court and by the defendant who was attempting to complete pretrial discovery. There was need for immediate compliance with discovery rules. Against that background, we observe that plaintiff had had three specific opportunities to comply with the defendant's request to produce — first, after defendant filed the request in August; second, following defendant's request letter dated October 6; and third, after defendant filed its motion to compel on October 29. We note, also, that there was pending in this proceeding a prior motion to compel answers to interrogatories. Plaintiff's lack of cooperation in the pretrial discovery stage was apparent and especially intolerable at a time when the matter was about to be tried. The court, however, gave plaintiff one more chance by providing in its order that if plaintiff complied with discovery within seven days, the dismissal was to be automatically vacated. To have ordered the plaintiff to comply within seven days and then to have dismissed her complaint if that compliance was not forthcoming certainly would have been proper. This is, in effect, what the trial court did by its conditional order of dismissal. This order was neither punitive nor too severe.

Examining the events following the entry of that order and the basis for the court's later judgment on plaintiff's section 72 petition, we note that on December 30, 1976, plaintiff filed a petition asking the court to vacate its November 1 order and to reinstate her complaint. On January 20, 1977, plaintiff's petition was dismissed for the reason that 30 days had passed since the dismissal order and the court was powerless to act under the present state of the pleadings.

On January 28, plaintiff filed a motion to vacate pursuant to section 72 of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 72). Attached was an affidavit made by counsel. On February 7 defendant made a special appearance and moved to quash on the basis of plaintiff's improper service of the motion upon defendant. This motion was confessed by plaintiff on February 8, and an order allowing the motion was entered on February 16.

On May 17 plaintiff filed another section 72 petition. Defendant moved to dismiss this petition because, among other deficiencies, the petition and affidavits of record failed to plead and show that plaintiff had acted with due diligence either before and/or after the November 1 order of dismissal or that the court had acted unfairly or unconscionably in regard to that ...

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