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Valdivia v. Chicago & N.w. Transp. Co.





APPEAL from the Circuit Court of Cook County; the Hon. PAUL F. ELWARD, Judge, presiding.


Plaintiff, Alvano Valdivia was injured in a fall while sandblasting a railroad overpass structure. On July 28, 1977, he filed a multicount complaint against numerous corporations including The Baltimore and Ohio Railroad Company and The Baltimore and Ohio Chicago Terminal Railroad Company (B&O), Portable Tool Sale and Service, Inc. and Portable Equipment Company, Inc. (Portable), City of Chicago and Albin Carlson and Company.

On August 25, 1977, Portable filed interrogatories and noticed plaintiff's deposition for June 16, 1978. Subsequently on September 6, 1977, B&O noticed plaintiff's deposition and filed interrogatories. Plaintiff, on May 15, 1978, after Portable's motion to dismiss for failure to answer interrogatories had been filed, answered Portable's interrogatories. Plaintiff failed to answer B&O's interrogatories which did not duplicate Portable's.

On April 30, 1979, Portable moved to dismiss plaintiff's complaint for his wilful failure to appear at discovery depositions on six different occasions in June, August, October and December, 1978 and February and April, 1979. At the hearing on the motion on that date, the court gave plaintiff's counsel the option either to dismiss plaintiff's complaint and refile it within one year or to produce plaintiff on or before a date picked by plaintiff's counsel. Counsel selected the second option and picked July 1, 1979, as the cut-off date for the deposition. The trial court stated that if plaintiff did not appear by the cut-off date, he would, on motion, dismiss plaintiff's complaint with prejudice.

By agreement, plaintiff's deposition was scheduled for June 20, 1979. On that date counsel for B&O and other defendants, a court reporter and a translator appeared at the office of Portable's counsel for the deposition. Neither plaintiff nor his counsel appeared. Plaintiff's counsel was called at his office. He stated that plaintiff did not appear for the deposition and that he, counsel, would not come to Portable's office. Plaintiff did not appear for a deposition at any time on or before July 1, 1979.

On July 16, 1979, B&O, City of Chicago and Albin Carlson and Company moved to dismiss plaintiff's complaint with prejudice. Plaintiff filed no written response or an affidavit, nor did he offer sworn oral testimony with reference to his failure to appear for his deposition. An attorney who appeared on behalf of plaintiff's attorney (who was on active military duty) stated that plaintiff, who spoke no English, was confused as to the June 20 date and asked for another date for his deposition. The trial court dismissed plaintiff's complaint with prejudice. On August 2, 1979, plaintiff filed a motion to vacate the order of dismissal and submitted his affidavit entirely in Spanish. Defendants did not file anything in opposition to the motion to vacate. No certified translation of plaintiff's affidavit was furnished either to the trial court or to defendants. At this court's request a translation was furnished to this court.

At the hearing on the motion to vacate, August 23, 1979, plaintiff's counsel stated he could not read the affidavit. He understood that in it plaintiff said that he misunderstood the date. The attorney added that plaintiff speaks no English and all communications are through his oldest daughter, 14 years old. Plaintiff misunderstood the date as June 22 and had asked for that day off from work. Plaintiff's counsel also stated that some of the defendants agreed on a new date; some did not.

The court considered possible alternative sanctions, but concluded that a fine would not insure compliance; further, the court could not read the affidavit in Spanish; the only effective sanction was dismissal. The motion to vacate was denied. In the same order, the court granted Portable's motion to dismiss. This dismissal resulted in eliminating all the defendants.

Plaintiff appeals contending that the dismissal with prejudice was inappropriate.

Supreme Court Rule 219(c) gives a trial court broad powers to impose sanctions for failure to comply with discovery orders, according to the circumstances of each case. (Ill. Rev. Stat. 1979, ch. 110A, par. 219.) The courts> have many times stated the extent and limitations of the Rule.

In Treadwell v. Chiakmakis (1978), 61 Ill. App.3d 125, 377 N.E.2d 1164, the court said at pages 127-28:

"Rule 219 of the Illinois Supreme Court Rules, governing pretrial procedures, provides:

`If 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 * * * may enter, in addition to remedies elsewhere specifically provided, such orders as are just * * *.' (Ill. Rev. Stat. 1975, ch. 110A, par. 219(c).)

Under this rule the trial court has broad discretion in the conduct of pretrial discovery procedures and such discretion includes the imposition of reasonable sanctions against parties guilty of dilatory practice. (Savitch v. Allman (1975), 25 Ill. App.3d 864, 323 N.E.2d 435.) The Illinois Supreme Court has recognized that such breadth of power requires careful exercise of discretion in order to balance the needs of truth and the imposition of an excessive burden to litigants. (People ex rel. General Motors Corp. v. Bua (1967), 37 Ill.2d 180, 226 N.E.2d 6.) However, a reviewing court will not ...

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