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Wiebusch v. Taylor

OPINION FILED MAY 29, 1981.

ROBERT J. WIEBUSCH, D/B/A QUALITY COACH WORKS, PLAINTIFF-APPELLEE,

v.

ALAN TAYLOR, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. PAUL A. KOLODZIEJ, Judge, presiding.

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

Rehearing denied July 8, 1981.

After a bench trial, judgment was entered for plaintiff in his action seeking payment for work performed in the repair and restoration of an automobile. On appeal, defendant asserts that the trial court erred in a number of its rulings. We will consider only one, as our ruling on it will be dispositive of this appeal. That issue is whether the trial court abused its discretion in barring defendant from presenting any evidence pertaining to the quality of plaintiff's work on the automobile in question due to defendant's refusal to comply with a pretrial order directing him to produce the car.

Plaintiff's verified complaint generally alleges that he agreed to and did repair and restore a 1973 Corvette Classic automobile at the request of defendant, who represented himself to be the owner and possessor of it. In his verified answer, defendant admitted requesting plaintiff to repair and restore the vehicle, but he denied representing himself as being the owner and possessor thereof. Defendant set forth a number of affirmative defenses, pertinent of which is that plaintiff's performance was incomplete and inferior in certain respects.

From the pleadings of record, it appears that after plaintiff made a request under Supreme Court Rule 214 (Ill. Rev. Stat. 1979, ch. 110A, par. 214) that defendant produce the vehicle in question for inspection and photographing, defendant filed an objection in which he stated that the car was not under his control; that it was owned by Mrs. Susan A. Bachman, of Wisconsin; and that before plaintiff began working on the vehicle, he knew she was the owner. In a reply filed to that objection, plaintiff asserted, in pertinent part, that photographing was essential because of certain denials in defendant's answer and the allegations in one of his affirmative defenses that the work was incomplete and inferior; and that "defendant was in immediate, actual possession and control for some time prior to and immediately after repair and restoration was completed." The trial court ordered defendant to produce the vehicle at plaintiff's place of business "or be precluded from introducing any evidence pertaining to the quality of alleged repairs, and that the pleadings of the Defendant pertaining to the quality of said repairs shall be stricken accordingly should he fail to produce said auto."

The record contains no verbatim transcript of the trial proceedings, but it does include a certified report of proceedings approved and certified by the trial court pursuant to Supreme Court Rule 323(c). (Ill. Rev. Stat. 1979, ch. 110A, par. 323(c).) In that report, the court stated:

"[T]he Defendant was not allowed by the trial court to introduce any evidence of allegations pertaining to the quality of the work, due to a pre-trial order directing that he produce the car pursuant to plaintiff's discovery (for inspection and photographing by expert witnesses) or be barred from introducing any evidence pertaining to the quality or extent of the work."

The trial court also stated in the report of proceedings that defendant testified the vehicle belonged to his sister and that he was unable to produce the car because his sister had removed it to the State of Wisconsin and that plaintiff, in his testimony, confirmed that the automobile did belong to defendant's sister.

OPINION

We turn our attention to defendant's argument that the judgment should be reversed because the trial court improperly barred him from introducing any evidence pertaining to the quality of the work performed by plaintiff. Initially, it should be noted that defendant in his answer admitted requesting plaintiff to do work on the vehicle in question, but he asserted in his affirmative defense that plaintiff's performance was incomplete and inferior. Thus, defendant argues in substance that the action of the trial court, in barring defendant from introducing any evidence pertaining to the quality or extent of the work, had the effect of preventing defendant from asserting his principal defense to the claim of plaintiff.

Supreme Court Rule 214 governs the procedure for the discovery of documents, objects and tangible things and provides in relevant part:

"Any party may by written request direct any other party to produce for inspection, copying, reproduction, [and] photographing * * * specified documents, objects or tangible things, * * * whenever the nature, contents, or condition of such documents, objects, [or] tangible things * * * is relevant to the subject matter of the action. * * * A party served with the written request shall (1) comply with the request within the time specified, or (2) serve upon the party so requesting written objections on the ground that the request is improper in whole or in part. * * * If the party claims that the item is not in his possession or control or that he does not have information calculated to lead to the discovery of its whereabouts, he may be ordered to submit to examination in open court or by deposition regarding such claim." Ill. Rev. Stat. 1979, ch. 110A, par. 214.

To blunt the resistance of a party to the court's discovery order, certain powerful sanctions can be imposed in accordance with Supreme Court Rule 219(c), which provides in relevant part:

"If a party, or any person at the instance of or in collusion with 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, on motion, may enter, in addition to remedies elsewhere specifically ...


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