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Amoco Oil Co. v. Segall

OPINION FILED OCTOBER 27, 1983.

AMOCO OIL COMPANY, PLAINTIFF-APPELLEE,

v.

MORT A. SEGALL, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Champaign County; the Hon. Arthur D. Nicol, Judge, presiding.

JUSTICE TRAPP DELIVERED THE OPINION OF THE COURT:

Plaintiff filed a complaint against defendant, an attorney, to recover in excess of $11,000 in credit card charges. The trial court entered final judgment against defendant for the claimed amount as a discovery sanction and subsequently denied defendant's motion to vacate the judgment. Defendant appeals the judgment of the circuit court of Champaign County. We affirm.

On appeal defendant argues that the trial court erred (1) in denying him a protective order against plaintiff's scheduled discovery deposition; (2) by denying his motions to quash the deposition and to dismiss on the basis of accord and satisfaction; (3) by entering final judgment against him; and (4) by denying his request to recover fees for appearing at the deposition.

The lengthy chronology of this case is as follows.

On March 21, 1980, plaintiff filed complaint in this action. On April 25, defendant filed a motion to dismiss for want of security for costs alleging plaintiff was a nonresident, with notice of hearing set more than four months later on August 29, 1980.

On May 15, 1980, plaintiff filed interrogatories to be answered by defendant and a request for defendant to admit. Defendant filed an objection to the interrogatories on the basis of the pending motion to dismiss, requested a protective order, and filed notice of hearing for August 29.

On May 28, 1980, plaintiff filed a motion to strike defendant's motion to dismiss and objection to interrogatories, stating plaintiff had a certificate of authority to do business in Illinois; plaintiff set the hearing for June 5, 1980.

On June 2, 1980, defendant filed a motion to strike and vacate the notice of hearing for June 5, because plaintiff did not file notice to vacate his hearing date of August 29. This motion was withdrawn at the hearing on June 5, 1980; defendant's motion was denied, his objections were overruled, and he was ordered to answer interrogatories within 28 days.

On June 23, 1980, defendant filed interrogatories to be answered by plaintiff, a request for production of plaintiff's documents, a motion to dismiss for lack of specificity, and a motion for a protective order. On July 21, 1980, plaintiff filed notice setting hearing on defendant's motions for August 7.

On August 7, 1980, defendant's motion to dismiss was allowed with leave to file an amended complaint by August 28, with defendant to answer and file interrogatories by September 15. On August 26, plaintiff's amended complaint was filed; photocopies of the credit slips and bills on defendant's account were attached. On September 15, 1980, defendant filed answers to interrogatories stating that investigation of the matter was pending, denying all charges except the sum of $455 — without identifying which charges were correct and which were not — and asserting payments in excess of that amount. Defendant filed a motion to dismiss and a countercomplaint for an accounting on the same bases.

On October 8, 1980, plaintiff filed an answer to defendant's countercomplaint. Eight and one-half months later, on June 26, 1981, plaintiff filed response to defendant's request for production of documents (charge slips and bills previously attached to complaint).

On July 9, 1981, plaintiff filed response to defendant's interrogatories, again attaching copies of the documents previously made available for inspection, and notice of hearing on defendant's motion to dismiss set for August 26.

On August 26, 1981, a hearing was held before Judge Nicol. Plaintiff filed an affidavit in opposition to defendant's motion to dismiss. Defendant's motion was denied and defendant was ordered to answer or plead by September 11, 1981. On September 4, 1981, defendant filed an answer denying the allegations of the complaint.

On April 8, 1982, plaintiff filed notice to take the discovery deposition of defendant Segall on April 28. Segall did not appear at the April deposition.

On May 20, 1982, plaintiff filed a motion to compel discovery, stating defendant's counsel called on April 27 and said defendant was on vacation. A hearing date of June 22 was set. On June 22, 1982, plaintiff's motion was allowed and defendant was ordered to appear for discovery deposition on July 7, 1982. Defendant was represented at this hearing by attorney Philip A. Summers.

On July 1, 1982, defendant filed a motion for a protective order stating that defendant was a Florida resident and it would constitute an unreasonable annoyance and expense for him to come to Illinois; the motion requested the court require plaintiff to pay defendant's reasonable travel expenses or, in the alternative, modify the order of July 7, 1982, and order plaintiff to take defendant's deposition in Florida. In support, defendant filed the affidavit of Barbara Butts stating Segall was a Florida resident and it would constitute an unreasonable annoyance and expense for him to come to Illinois.

Defendant did not appear at the discovery deposition on July 7.

On August 12, 1982, plaintiff filed a motion to strike defendant's pleadings and enter judgment by default for $11,130.38, and a notice setting ...


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