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Singer v. Treat

OPINION FILED JUNE 30, 1986.

DONALD SINGER ET AL., PLAINTIFFS-APPELLANTS,

v.

BARBARA D. TREAT, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County; the Hon. Alan E. Morrill, Judge, presiding.

JUSTICE O'CONNOR DELIVERED THE OPINION OF THE COURT:

Plaintiffs appeal from an order entered August 20, 1985, denying their petition under the provisions of section 2-1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch 110, par. 2-1401), in which plaintiffs sought to vacate an order entered March 19, 1985, dismissing plaintiffs' cause of action with prejudice for failure to answer defendant's interrogatories (87 Ill.2d R. 210(c)(v)). On appeal, plaintiffs contend that (1) the trial court abused its discretion in entering the March 19, 1985, dismissal since plaintiffs were diligently attempting to comply with discovery and their noncompliance was not contumacious or unreasonable, and (2) the trial court should have vacated the dismissal after plaintiffs fully complied with discovery since trial on the merits could be had without undue hardship or prejudice to the defendant.

Plaintiffs filed this action on June 24, 1983, to recover damages for personal injuries allegedly sustained in a motor-vehicle accident on June 26, 1981. On October 24, 1983, defendant filed and sent to plaintiffs' counsel written interrogatories to be answered by each plaintiff, and on December 23, 1983, an order was entered providing that all written discovery be completed within 28 days and stating that defendant would then move for sanctions. Defendant's attorneys wrote to plaintiffs' attorney requesting answers to the interrogatories on November 7, 1983, January 11, and February 6, 1984, and filed a notice pursuant to Supreme Court Rule 214 (87 Ill.2d R. 214) on March 14, 1984, requesting answers within 28 days, and stating that defendant would then move for sanctions. On April 26, 1984, new counsel appeared for plaintiffs.

On September 19, 1984, defendant moved to dismiss for plaintiffs' failure to comply with discovery and alleged, in compliance with Supreme Court Rule 201(k) (87 Ill.2d R. 201(k)), that the parties had been unable to reach an accord after personal consultation and reasonable attempts to have plaintiffs answer their interrogatories, such as a telephone call to plaintiffs' counsel and the correspondence referred to above. On December 5, 1984, plaintiffs' complaint was dismissed without prejudice. On January 18, 1985, plaintiffs were allowed an additional 60 days to file answers to the defendant's interrogatories.

The motion to dismiss with prejudice was continued until March 19, 1985, when the court dismissed plaintiffs' cause of action with prejudice, although plaintiffs presented their answers to interrogatories, together with accompanying documents, to the court and to opposing counsel at that time, and although counsel for plaintiffs stated he had offered to send these materials by messenger on March 18 to opposing counsel. At this hearing, defendant's counsel interjected that on March 18, plaintiffs' counsel informed him he had "the specials," but not the answers to interrogatories. Defendant's counsel specifically objected to the answers to interrogatories presented in court because some of the answers stated information would be sent under separate cover and stated, "[I]t's not my job to go through the specials and decipher everything he's attached here." After stating that the answers were not in compliance with the spirit of discovery, the court allowed the motion.

On May 27, 1986, we granted plaintiffs' motion to file, as a supplemental record, Nancy Singer's answers to interrogatories and attached documents. The record, as originally filed, contained only Donald Singer's answers to interrogatories, to which no documents were attached. The supplemental record illuminates the arguments made at the hearing on March 19. Following Nancy Singer's answers, the supplemental record contains 23 pages of documents which are not specifically identified or described, either in Nancy Singer's answers to interrogatories or in any attachment thereto. From our own examination of the documents, we summarize them as follows:

(1) An itemized bill for $336.20, most of which is not legible, apparently for emergency-room treatment of Nancy Singer on June 27, 1981;

(2) Two pages of the emergency-service record of Nancy Singer from Good Shepherd Hospital dated June 27, 1981, at 2:45 a.m., containing instructions and indicating the treatment rendered;

(3) A two page appraisal on a Kemper Insurance form in the amount of $1,086 for damage repairs to Donald Singer's 1967 Dodge Polara, dated July 8, 1981;

(4) A two-page report of claim, (apparently for Kemper Insurance) by Donald Singer dated September 19, 1981;

(5) A repair bill showing cash payment of $277 to Larry's Standard Auto Center by Donald Singer for repairs to a 1967 Polara;

(6) Two pages showing photostats of 10 checks in varying amounts during 1981, drawn on plaintiffs' joint account;

(7) A $599.05 bill marked paid by Donald Singer to Midwest Auto Service on August 29, 1981;

(8) An estimate dated June 19, 1982, on the letterhead of Northwest Automobile Brokers showing the current value of ...


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