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11/14/88 Michael Rush, v. Leader Industries

November 14, 1988

MICHAEL RUSH, PLAINTIFF-APPELLEE

v.

LEADER INDUSTRIES, INCORPORATED, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION

531 N.E.2d 863, 176 Ill. App. 3d 803, 126 Ill. Dec. 236 1988.IL.1645

Appeal from the Circuit Court of Cook County; the Hon. Carl J. Cipolla, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE LORENZ delivered the opinion of the court. PINCHAM and MURRAY, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LORENZ

Defendant, Leader Industries, Incorporated, appeals from the denial of its motion to modify a trial judgment to award damages on its counterclaim arising out of plaintiff's action to recover earned sales commissions. Defendant also appeals the grant of sanctions for non-compliance with discovery.

We affirm.

On April 7, 1986, plaintiff, Michael Rush, filed a verified complaint against defendant alleging that defendant failed to pay full sales commissions pursuant to a written agreement between the parties in which plaintiff agreed to procure clients to enter waste transportation contracts with defendant.

Together with an answer denying the material allegations of the complaint, defendant filed a three-count counterclaim. Relevant here, count I of the counterclaim alleged that, although the sales commission agreement provided that plaintiff was to pay the expenses of his efforts to procure clients, plaintiff used defendant's facilities, equipment, personnel, and supplies without reimbursement to defendant. Defendant prayed for $3,000 in damages.

Although plaintiff unsuccessfully moved to dismiss the counterclaim, plaintiff did not otherwise answer defendant's allegations.

On May 15, 1986, plaintiff filed a notice upon defendant to produce certain invoices pursuant to Supreme Court Rule 214 (107 Ill. 2d R. 214). By letter dated July 15, 1986, plaintiff again requested that defendant produce various of those invoices which had not been produced in defendant's response to the production request. Another request for those invoices was made in a second letter dated July 28, 1986. Notwithstanding defendant's submission of an affidavit of compliance with plaintiff's discovery request, plaintiff, in a third letter, dated September 25, 1986, made further demand on defendant to produce the missing invoices.

On December 29, 1986, plaintiff filed a supplemental notice to produce certain of defendant's tax returns, financial statements, and receipts of payments dating from 1982. Subsequently, by letter dated January 21, 1987, plaintiff advised defendant that plaintiff still had not received certain of the requested invoices or defendant's response to both plaintiff's request to admit and to plaintiff's supplemental notice to produce.

On February 18, 1987, the matter having come before the court on the trial call, an order was entered which recited that plaintiff had viewed the various documents produced by defendant.

The cause proceeded to bench trial on February 23, 1986. At the completion of plaintiff's case in chief, defendant rested without putting on any evidence in support of its action on the counterclaim. Judgment for plaintiff in the amount of $2,916, plus costs, was rendered on the evidence presented and the allegations of the pleadings. A judgment was also rendered for defendant on defendant's counterclaim on the basis that plaintiff's failure to answer constituted admissions. However, the court awarded ...


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