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Nehring v. First National Bank

OPINION FILED MAY 21, 1986.

PAUL M. NEHRING, PLAINTIFF-APPELLANT,

v.

FIRST NATIONAL BANK IN DEKALB, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Kane County; the Hon. Melvin E. Dunn, Judge, presiding.

JUSTICE STROUSE DELIVERED THE OPINION OF THE COURT:

This is an appeal from the circuit court order dismissing the action because of plaintiff's failure to comply with discovery rules and the court orders. The underlying action was plaintiff's suit to recover damages occasioned by an alleged breach of duty by defendant bank in connection with the sheriff of De Kalb County's execution on certain property that plaintiff had stored at the bank.

The plaintiff, Paul M. Nehring, filed a suit against First National Bank in De Kalb on February 15, 1983, in the circuit court of De Kalb County, Illinois. The plaintiff sought damages and other relief for the loss of his personal property which was caused by the bank. Specifically, plaintiff alleges that over a period of approximately 10 years, he accumulated pre-1965 United States silver coins in denominations of quarters and dimes. He had these silver coins sorted, counted and placed in 110 bags consisting of $1,000 in face value each. He had these bags stored in the vaults of the defendant bank. These coins were allegedly worth far more than their face value of $110,000. The bank became the respondent to a garnishment, levy and execution served upon it by the sheriff of De Kalb County in reference to the plaintiff. The garnishment, levy and execution were issued by the clerk of the court for De Kalb County, pursuant to a proceeding by John D. Raikos in the circuit court of De Kalb county, to register a default judgment in the amount of $128,114.41 obtained against plaintiff in Indiana. Pursuant to the execution and levy, defendant bank was requested by Mr. Raikos to deliver plaintiff's personal property in sufficient amount to satisfy the $128,114.41 judgment. The defendant bank turned over 110 bags of the silver coins to Mr. Raikos and the sheriff. The default judgment obtained by Mr. Raikos against plaintiff was subsequently vacated and Mr. Raikos was ordered to return the several coins to the bank. Mr. Raikos refused to do so, having sold the coins for $636,000.

In mid-February, the plaintiff filed a one-count complaint in the circuit court of De Kalb County against the First National Bank in De Kalb. Plaintiff's complaint accused defendant bank of converting these coins. On March 19, 1983, defendant answered the complaint, and served plaintiff with a request for documents and a notice of plaintiff's deposition for April 25, 1983. Item number one of defendant's request for documents sought production of "any and all documents which relate in any manner whatsoever to the United States silver coins at issue in this case."

On April 15, 1983, with plaintiff's approval, plaintiff's attorney moved to withdraw from this case. That motion was granted on April 18, 1983. Plaintiff's deposition did not go forward on April 25, 1983. On April 18, 1983, June 7, 1983, July 1, 1983, and July 28, 1983, defendant's counsel wrote to plaintiff informing him that his response to defendant's document request was overdue and requested plaintiff to respond with regard to the scheduling of his deposition. Plaintiff never responded to any letter.

On September 1, 1983, plaintiff telephoned defendant and informed him that he was attempting to secure the services of an attorney. At that time, defendant advised plaintiff that if plaintiff was not prepared to proceed with the discovery within the next 30 days, defendant would move to dismiss. The telephone conversation was memorialized in a September 1, 1983, letter from defendant to plaintiff.

Having heard nothing from plaintiff, defendant, on October 12, 1983, wrote to plaintiff and informed him that if by October 31, 1983, plaintiff did not provide the documents that defendant had requested, defendant would move to dismiss.

On October 31, 1983, plaintiff filed a reply to defendant's request for production of documents. In that reply, plaintiff refused to produce any documents to defendant. With regard to defendant's first request, plaintiff stated that "documents relating to the silver coins would have to be obtained from the First National Bank in De Kalb." Plaintiff made no response to defendant's attempts to reschedule his deposition.

On November 10, 1983, defendant moved to dismiss this action for want of prosecution. The trial judge continued the motion to December 8, 1983, in order that plaintiff might obtain the services of an attorney. Two days before the rescheduled hearing, plaintiff filed a pro se motion for a change of venue on the ground that all the judges in De Kalb County had disqualified themselves in an earlier case involving plaintiff and defendant.

On December 8, 1983, plaintiff did not appear at the hearing on defendant's motion to dismiss. On December 12, 1983, the judge entered an order continuing defendant's motion to dismiss and transferred the case to the chief judge of the Sixteenth Judicial Circuit for reassignment and scheduling. On February 1, 1984, the chief judge reassigned the case to Judge Melvin E. Dunn of the circuit court of Kane County.

On March 20, 1984, the judge denied defendant's motion to dismiss and ordered plaintiff, who had retained new counsel, to appear for his deposition at a mutually convenient time. He also granted plaintiff leave to withdraw his October 31, 1983, response to defendant's first request for documents and gave him 14 days to respond to that request.

On about April 3, 1984, plaintiff filed a response to defendant's first request for documents. In that response, plaintiff declared that he would "produce all documents in response to request number 1." Plaintiff thereafter produced some documents for inspection and copying.

On May 1, 1984, over defendant's objection, the judge granted plaintiff leave to file a four-count amended complaint. The allegations in the amended complaint, like those in plaintiff's initial complaint, centered on plaintiff's claim that he had stored $110,000 in United States silver coins in the First National Bank in De Kalb. In the amended complaint, however, he claimed that the bank had breached a duty to him when the claims were executed upon by the sheriff pursuant to court order.

On May 1, 1984, defendant asked plaintiff's counsel when plaintiff would be available to his deposition. Plaintiff's counsel replied he would check with plaintiff and would contact defendant. On May 4, 1984, defendant again asked plaintiff's counsel when plaintiff would be available for his deposition. Plaintiff's counsel replied he was encountering some difficulties in communicating with his client. On May 17, 1984, after defendant had heard nothing from plaintiff concerning the scheduling of the deposition, defendant wrote a letter to plaintiff's attorney requesting possible dates for plaintiff's deposition. No response was made.

On June 15, 1984, defendant filed a new motion to dismiss for want of prosecution based upon plaintiff's refusal to make himself available for his deposition as required by the trial court's order of March 20, 1984. The motion was set for hearing on June 19, 1984. On June 18, 1984, at 7:30 p.m., plaintiff telephoned defendant and informed him that plaintiff would finally agree to set a date for his deposition. Defendant withdrew its motion to dismiss.

On July 25, 1984, plaintiff was deposed. He again produced some documents which he had already given to defendant. At the deposition, plaintiff was questioned by defendant's counsel:

"Q. When did you first putting coins in the First National Bank [in De Kalb] the silver coins?

A. I don't recall offhand. I just had a box full of stuff [stolen from me] which covered a lot of ...


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