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Union Oil Co. of California v. Hertel

OPINION FILED SEPTEMBER 29, 1980.

UNION OIL COMPANY OF CALIFORNIA, PLAINTIFF-APPELLEE,

v.

DONALD HERTEL, DEFENDANT-APPELLANT.



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

MR. JUSTICE MCGLOON DELIVERED THE OPINION OF THE COURT:

Rehearing denied October 27, 1980.

A default judgment was entered againt Donald Hertel based on Hertel's refusal to submit handwriting exemplars upon order of the court. Hertel appeals. On appeal, Hertel contends that handwriting samples are not discoverable matters.

We affirm.

Union Oil Company of California (Union Oil) brought an action based on fraud against Donald Hertel on April 19, 1978. Count I of the complaint alleged that Hertel had represented that he was an attorney and had charged Union Oil $8,500 for legal services allegedly performed in the rezoning of property. Union Oil alleged that Hertel was not licensed to practice law and had not performed any legal services. The complaint further stated that Union Oil issued a check for $8,500 payable to Hertel as an attorney and that Hertel endorsed, negotiated, and cashed the check. A copy of the check, which was attached to the complaint, reveals the following endorsement:

"Donald Hertel, Lawyer 1660 Hertel Lane Deerfield, Ill."

In count II of the complaint, Union Oil alleged that the misrepresentations were wilful, fraudulent, and malicious and on these bases, sought punitive damages.

In his answer, Hertel admitted that he was not a licensed attorney and that he did not perform legal services for Union Oil. He further stated that he had insufficient information to answer the allegations regarding the check issued to him by Union Oil.

Hertel's deposition was taken on August 22, 1978. When shown the original check, he could not say with certainty that the endorsement was his. Hertel refused to produce handwriting samples for expert analysis absent a court order.

Pursuant to Union Oil's motion, the trial court entered an order on November 14, 1978, directing Hertel to submit five handwriting samples of the endorsement which appeared on the check. Defendant's appeal from the order was dismissed on the ground that the order was not final and appealable. On July 11, 1979, a certified letter requesting that defendant comply with the court's order was sent by Union Oil to defendant's attorney. The attorney refused delivery. One week later, Union Oil again requested the production of handwriting samples and Hertel's attorney responded by letter that Hertel would not comply.

Consequently, Union Oil moved for sanctions and a default judgment. Despite being served with notice of this motion, Hertel failed to appear at the hearing. The trial court thereafter entered a default judgment against Hertel on count I of the complaint.

On appeal, defendant contends that the trial court was without authority to enter the discovery order because the Supreme Court Rules do not specifically provide for the discovery of handwriting exemplars in civil actions.

Supreme Court Rule 214 provides that "[a]ny party may by written request direct any other party to produce for inspection, copying, reproduction, photographing, testing or sampling specified documents, objects or tangible things * * * whenever the nature, contents, or condition of such documents, objects, tangible things * * * is relevant to the subject matter of the action." Ill. Rev. Stat. 1977, ch. 110A, par. 214.

The supreme court has stated that the discovery rules were designed to be "flexible and adaptable to the infinite variety of cases and circumstances." (Sarver v. Barrett Ace Hardware, Inc. (1976), 63 Ill.2d 454, 460, 349 N.E.2d 28, 30, quoting Monier v. Chamberlain (1966), 35 Ill.2d 351, 355, 221 N.E.2d 410, 414.) Their main objectives are the ascertainment of truth and the expeditious and final determination of the controversy. (Monier v. Chamberlain.) In accord with these principles, the court in Sarver held that partially ...


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