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10/07/88 William Mueller, D/B/A Wil v. E Benefit Administrators

October 7, 1988

WILLIAM MUELLER, D/B/A WIL-KARE TYPOGRAPHERS, PLAINTIFF-APPELLANT

v.

INSURANCE BENEFIT ADMINISTRATORS, INC., DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION

529 N.E.2d 1126, 175 Ill. App. 3d 587, 125 Ill. Dec. 50 1988.IL.1514

Appeal from the Circuit Court of Cook County; the Hon. Thomas R. Casey, Jr., Judge, presiding.

APPELLATE Judges:

JUSTICE PINCHAM delivered the opinion of the court. SULLIVAN, J., concurs. PRESIDING JUSTICE LORENZ, specially Concurring.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE PINCHAM

Plaintiff, William Mueller, d/b/a Wil-Kare Typographers, initiated this action against the defendant, Insurance Benefit Administrators, Inc. The trial court granted defendant's motion for sanctions and imposed $625.50 in sanctions against plaintiff, ostensibly because of plaintiff's failure to appear for his deposition, and dismissed plaintiff's complaint with prejudice for plaintiff's failure to pay the sanctions. Plaintiff appeals. The issues presented for review are: (1) whether the trial court erred in imposing sanctions of $625.50 against plaintiff purportedly for his failure to appear for his deposition; and (2) whether the trial court erred in dismissing plaintiff's complaint with prejudice for his failure to pay the sanctions. We reverse.

On September 25, 1984, plaintiff filed an action in contract against defendant. Subsequently, on June 4, 1985, defendant filed a counterclaim against plaintiff and a third-party complaint against third-party defendants John Martin, individually and d/b/a The Communicators, BIJO, Inc., and BLC Graphics, Inc. The counterclaim and third-party complaint were not related to plaintiff's complaint and alleged a separate cause of action for fraud and breach of a fiduciary duty. No summons were served on the third-party defendants.

On August 9, 1985, plaintiff's attorney was served with notice for the taking of the deposition of third-party defendant John Martin on September 4, 1985, and also for the taking of plaintiff's deposition on September 5, 1985, at the office of the defendant's attorney in Hillside, Illinois. Two weeks later, on August 26, 1985, the efforts of the litigants and their attorneys culminated in a proposed comprehensive settlement agreement. The proposed settlement agreement provided that in case No. 84 -- M5 -- 648, Insurance Benefit Administrators v. John Martin and BIJO, Inc., which was pending on appeal in the First Judicial District under case No. 84 -- 2825, defendants, John Martin and BIJO, Inc., would execute a release and satisfaction of judgment entered on October 11, 1984, in favor of Insurance Benefit Administrators, Inc., and the appeal was to be dismissed. The proposed settlement agreement further provided that the complaint and counterclaim in the instant case were to be dismissed with prejudice. The proposed settlement agreement additionally provided that in another case, No. 84 -- 1035, separate $10,000 judgments would be entered against John Martin and William Mueller, plaintiff herein, in favor of Insurance Benefit Administrators. The terms of payment of the judgments were set forth in the intended settlement agreement. The proffered settlement agreement was set forth in a letter from the defendant's attorney dated August 26, 1985. Apparently because of the negotiations in the tendered settlement agreement, plaintiff did not appear for his deposition at the defendant's attorney's Hillside office on September 5, 1985. Fifteen days later, on September 20, 1985, the defendant's attorney filed interrogatories which were to be answered by plaintiff within 26 days. Also, on September 20, 1985, the defendant's attorney presented to the trial court a "Motion to Compel Discovery and for sanctions," which alleged that plaintiff William Mueller failed to appear for his September 5, 1985, deposition. Defendant's motion prayed, inter alia, that further proceedings in the case be stayed until the taking of plaintiff's deposition.

The record before us, on this appeal, is replete with numerous and repeated motions and petitions for sanctions and rules to show cause against the attorneys, from which it appears that perhaps the attorneys were diverted from pursuing the cause of their litigant clients to engaging in affronts and vendettas toward each other. The record on appeal also contains an order entered by the trial court on September 20, 1985, which states:

"This cause coming on to be heard on plaintiff's motion to dismiss the counterclaim and defendant's motion to compel discovery. It is hereby ordered that the motion to dismiss is filed and defendant shall answer within 10 days and hearing is set for 10-10-85.

The deposition of William Mueller is set for 10-3-85 at 11:00 A.M., Defendant's motion for sanctions is entered and continued to 10-10-85." (Emphasis added.)

It is noteworthy that this foregoing order merely set the date and hour for William Mueller's deposition. The order did not designate the place for the taking of Mueller's deposition, and it did not order Mueller to appear.

Plaintiff William Mueller did not appear for his deposition on October 3, 1985, apparently because on that date his attorney, pursuant to notice to defendant's attorney, appeared on October 3, 1985, before and presented to the trial court a motion to enforce the proferred settlement agreement and "dismiss the suit and counterclaim and third-party complaint . . . for the reason that all motions in controversy have been settled and adJudged by the parties pursuant to a written letter of settlement written by [defendant's attorney] dated August 26, 1985." Defendant's attorney filed a "response to plaintiff's motion to enforce settlement agreement and dismiss suit," in which defendant objected to and prayed for denial of plaintiff's motion and requested the cause be set for trial. The trial court set plaintiff's motion to enforce the settlement agreement and to dismiss for an evidentiary hearing on October 17, 1985.

Also, on October 3, 1985, because the third-party defendant, John Martin, had not been served with summons or a copy of defendant's third-party complaint, the trial court granted defendant's attorney's motion for the appointment of a special process server to serve John Martin.

On October 11, 1985, a week before the evidentiary hearing of October 17, 1985, on plaintiff's motion to enforce the proposed settlement agreement and dismiss the suit, the defendant's attorney presented to the trial court defendant's "amended motion for sanctions and for a rule to show cause." This motion incorrectly alleged, contrary to the language of the foregoing September 20, 1985, order, that "on September 20, 1985 this court ordered the plaintiff, William Mueller, to appear at the office of defendant's counsel to be deposed on October 3, 1985." The September 20, 1985, order did not order plaintiff to appear at the office of defense counsel on October 3, 1985. The motion further alleged that plaintiff, William Mueller, "failed to appear as ordered on October 3, 1985, and failed to inform counsel in advance of that failure." The motion prayed that "this court enter a rule against the plaintiff, William Mueller, to show cause if any he can why he should not be held in contempt of court for failure to obey its lawful orders." The motion additionally requested, inter alia, "sanctions against William Mueller as follows: (1) costs and attorney fees in a reasonable amount." On October 11, 1985, the trial court entered the following order:

"This cause coming to be heard on defendant's amended motion for sanctions, notice having been given and the Court being fully advised in the premises:

1. William Mueller without good cause, failed to appear for deposition on 10-3-85 as ordered by this court on 9-20-85.

2. William Mueller, without good cause, failed to appear for deposition on 9-5-85, pursuant to notice.

3. William Mueller has failed to answer interrogatories propounded by defendant pursuant to Supreme Court Rules.

4. As a result of Mueller's conduct plaintiff has expended $81.00 costs and attorney fees.

It is therefore ordered:

1. IBA's motion for sanctions is ...


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