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John Mathes & Associates, Inc. v. Noel

OPINION FILED MARCH 25, 1981.

JOHN MATHES & ASSOCIATES, INC., PLAINTIFF-APPELLEE,

v.

LARRY NOEL ET AL., D/B/A SANDSTONE, LTD., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Monroe County; the Hon. D.W. COSTELLO, Judge, presiding.

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

Action was brought by John Mathes and Associates, Inc., against Larry Noel and Tom Brimbury, doing business as Sandstone, Limited, for breach of oral contract for test drilling of soil cores and for engineering and related services performed by plaintiff. Following unsuccessful attempts at discovery, the plaintiff moved pursuant to Supreme Court Rule 219(c) (Ill. Rev. Stat. 1979, ch. 110A, par. 219(c)) to strike the pleadings of defendant Tom Brimbury and to enter judgment for the plaintiff. The trial court entered an order of default against Brimbury and entered a judgment in favor of the plaintiff and against Brimbury in the sum of $6,549.44 plus costs. Brimbury, hereinafter referred to as defendant, appeals from the judgment.

Plaintiff's complaint was filed on February 17, 1978. Defendant filed an answer denying plaintiff's allegations on April 5, 1978. On May 22, 1978, plaintiff filed a notice to take the deposition of the defendant at the office of his attorney on June 20, 1978. Deposition of Brimbury was set for June 20, 1978, and subsequently was rescheduled for June 29 and September 14, 1978, after defendant cancelled the deposition on each occasion. On September 14, plaintiff contacted attorney for defendant by mail and reset the deposition for October 6, 1978, noting the late cancellation of the most recent deposition and asserting that plaintiff would agree to no further continuances.

The October 6 deposition was again cancelled by the defendant. On October 10, plaintiff filed a petition for sanctions, and a hearing on the petition was set for October 17, 1978. When defendant did not appear at the hearing, a default judgment was entered against him. On October 30, defendant moved to set aside the default judgment, alleging that all of the cancellations of the deposition dates had been for good cause. The default judgment was set aside on December 22, 1978, on the condition that defendant appear for his deposition on February 1, 1979.

On January 31, 1979, defendant moved for a continuance, and the deposition was continued until February 8. Because of a snowstorm, the February 8 deposition was continued to February 22, 1979, by stipulation of the parties. An order pursuant to the stipulation was entered on February 14.

The February 22 deposition was set for 4 p.m. at the offices of plaintiff's attorney in Columbia, Illinois. Prior to 4 o'clock defendant's counsel informed defendant and plaintiff's attorney that he would be delayed; and at 4:20 or 4:30, he indicated that he had just left his office in Alton to proceed to Columbia. Defendant himself had been present since 4 o'clock.

Prior to the arrival of defendant's attorney, counsel for the plaintiff made the following entry into the record:

"Mr. Traughber: We are here for a deposition scheduled at 4:00 o'clock and we are ready to proceed with the deposition and Mr. Brimbury is here and I think that unless we proceed with it that all costs resulting from the deposition should be taxed to the defendant, Tom Brimbury. Right now, it is five minutes after 5:00 o'clock. Also, the plaintiff Gary Mathes, vice president of John Mathes & Associates, Inc., has been present for his deposition since 4:00 o'clock."

When defendant's counsel arrived at 5:30, the following proceedings were held of record:

"Mr. Massa: Tom is not going to give his deposition with his [sic] [Gary Mathes] staying in here.

Mr. Traughber: I want to go on the record to state it is 5:30. My client has been here since 4:00 o'clock. His deposition was noticed to be taken here at 4:00 o'clock, and that I am going to request that we be paid his fees and my fees for showing up and waiting for an hour and a half, and the court should particularly take notice of the background of this file and that the defendant refused to have his deposition taken.

Mr. Massa: Let the record show that the defendant refuses to give his deposition when Gary Mathes is in the room because of ill will which exists between the parties.

Mr. Traughber: That is ridiculous, Jim, really.

Mr. Massa: I would have been here at 4:00 o'clock, today except that I had a Workmen's Compensation Hearing at Alton which did not finish until 4:00 o'clock and I think it is about a seventy mile drive down here through the traffic, particularly in Dupo, and I have been on my way since then. But we are here, and let the record show ...


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