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Francone v. Weigel Broadcasting Co.

OPINION FILED DECEMBER 28, 1979.

NICOLA FRANCONE ET AL., PLAINTIFFS AND COUNTERDEFENDANTS-APPELLANTS,

v.

WEIGEL BROADCASTING CO., INC., D/B/A CHANNEL 26, WCIU TELEVISION, DEFENDANT AND COUNTERCLAIMANT-APPELLEE.



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

MR. PRESIDING JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:

Nicola Francone and Francone Enterprises, Inc. (collectively referred to as plaintiffs), brought suit against Weigel Broadcasting Co., Inc. (Weigel), and other named defendants seeking injunctive relief and an accounting. Weigel filed a counterclaim against plaintiffs for breach of contract. At trial, without the presence of plaintiffs or their counsel, the court dismissed the only remaining count of the complaint against Weigel with prejudice and entered judgment for Weigel on the counterclaim. The trial court also denied Francone's subsequent motion to vacate judgment. Plaintiffs appeal.

We will first consider the jurisdiction of this court over the within appeal. Although this question was not raised by the parties, it is our duty to consider our own jurisdiction. This issue is "always open." (Artoe v. Illinois Bell Telephone Co. (1975), 26 Ill. App.3d 483, 484, 325 N.E.2d 698, and cases there cited.) In the instant case the final judgment order was entered December 14, 1978. On January 12, 1979, within 30 days, Francone filed a motion to vacate the judgment. Francone Enterprises did not join in this motion. On January 16, 1979, plaintiffs filed a joint notice of appeal from the final judgment of December 14, 1978. This notice of appeal was timely filed as January 15, 1979, was a court holiday. See Ill. Rev. Stat. 1977, ch. 131, par. 1.11.

• 1, 2 However, the filing of the notice of appeal by Francone, without obtaining a decision on his then pending motion to vacate the judgment, constituted an abandonment by him of his motion to vacate the judgment. (See Scott v. Scott (1979), 72 Ill. App.3d 117, 122, 389 N.E.2d 1271.) We conclude that we have jurisdiction over this appeal and that Francone has abandoned his post-trial motion to vacate the judgment.

In this court, plaintiffs contend they were denied "due process" when the trial judge allowed their attorney to withdraw from the case on the trial date and did not continue the case to allow them to substitute another attorney; the evidence does not support the entry of judgment jointly and severally against plaintiffs and does not support the amount of the judgment; and the trial judge committed reversible error by denying Francone's motion to vacate the judgment.

Francone Enterprises produces and broadcasts Italian radio and television programs. Francone is president of Francone Enterprises. Weigel operates a television station in Chicago. Plaintiffs filed a three-count complaint against Weigel on October 31, 1975. Eventually a fourth count was added and Weigel filed a counterclaim against plaintiffs. At the time the case was called for trial, the only remaining issues were those raised in count III of the complaint and the counterclaim.

We need not detail the tortuous litigation before discovery was completed. It is sufficient to say that the record discloses a complete lack of cooperation by Francone in obeying the orders of the trial court. Francone repeatedly violated orders of court involving answering of questions on discovery and production of documents. It is difficult to comprehend how and why plaintiffs, bringing a suit to enforce their alleged rights, should repeatedly procrastinate and put obstacles in the path of an orderly disposition by the trial court.

The case continued on its way until the designated trial date of December 14, 1978. Counsel for Weigel and the attorney of record for plaintiffs both appeared. Francone himself was absent in violation of a notice to produce which required him to appear. Counsel for plaintiffs told the court he was discharged by Francone "some 20 minutes ago." The trial court insisted that the cause proceed. A recess was declared and counsel telephoned Francone. The latter said he would appear with a letter dismissing his attorney. The session resumed and Francone appeared. He handed a letter to his attorney and turned to leave. The trial judge insisted that Francone remain but Francone stated he had no time and left the courtroom. The envelope from Francone contained a letter stating that he was retaining new counsel. The trial court gave present counsel leave to withdraw and then proceeded to trial.

The trial court dismissed with prejudice count III of the complaint in which Francone was the only plaintiff. The trial court heard evidence on the counterclaim and entered judgment in favor of Weigel against plaintiffs for $3741. We will consider the contentions of plaintiffs in order.

I.

We find no constitutional issue here. "The discretionary denial of a continuance, even if it is erroneous, is not a violation of due process of law." (Moore v. McDaniel (1977), 48 Ill. App.3d 152, 164, 362 N.E.2d 382, appeal denied (1977), 66 Ill.2d 631, citing Benton v. Marr (1936), 364 Ill. 628, 5 N.E.2d 466.) The issue here is whether the trial judge abused his discretion in dismissing count III of the complaint with prejudice.

In situations of this type it has been held that "[t]he dismissal of a cause with prejudice is a drastic sanction and should be employed only as a last resort, when the uncooperative party shows `a deliberate, contumacious or unwarranted disregard of the court's authority' [citations]." Department of Transportation v. Zabel (1975), 29 Ill. App.3d 407, 410, 330 N.E.2d 878.

• 3 Reviewing the entire record, it is our considered opinion that the trial judge was well within the bounds of reasonable discretion in imposing the sanction which he did. This order was authorized under Supreme Court Rule 219(c). (Ill. Rev. Stat. 1977, ch. 110A, par. 219(c).) We find here repeated violations of the orders of the trial court, a complete flouting of judicial authority and a general attitude of disrespect and complete indifference to the orders of the trial court. The record is replete with instances in which the trial court found it necessary to protest against conduct by Francone which the court described as "a plethora of machinations * * * designed for the purpose of harassing the defendants * * * not motivated by a scintilla of good faith on the plaintiffs' part." In our opinion, ...


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