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02/28/94 PRIOR PLUMBING AND HEATING COMPANY v. TONI

February 28, 1994

PRIOR PLUMBING AND HEATING COMPANY, PLAINTIFF,
v.
TONI HAGINS AND MICHAEL HAGINS, RONALD KAFKA, KAFKA & SONS, INC. AN ILLINOIS CORPORATION, DEFENDANTS. KAFKA AND SONS, INC., AN ILLINOIS CORPORATION, CROSSPLAINTIFF AND COUNTERPLAINTIFF, V. TONI HAGINS AND MICHAEL HAGINS, CROSSDEFENDANTS, AND PETER RASCIA, COUNTERDEFENDANT. ANTOINETTE HAGINS AND MICHAEL HAGINS, COUNTERPLAINTIFFS AND CROSSPLAINTIFFS/APPELLEES, V. REMODELING BY KAFKA, INC., A/K/A KAFKA AND SON, INC., AN ILLINOIS CORPORATION, AND RONALD W. KAFKA, CROSSDEFENDANTS/APPELLANTS, AND PRIOR PLUMBING AND HEATING COMPANY, AN ILLINOIS CORPORATION, COUNTERDEFENDANT.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE DANIEL J. WHITE, JUDGE PRESIDING.

Campbell, Buckley, Manning

The opinion of the court was delivered by: Campbell

PRESIDING JUSTICE CAMPBELL delivered the opinion of the court:

Defendant/crossplaintiff, Ronald W. Kafka (Kafka) appeals an order of the Circuit Court of Cook County awarding attorneys fees to defendants/counterplaintiffs, Michael and Antoinette Hagins (collectively "The Hagins") pursuant to the Illinois Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act) (Ill. Rev. Stat. 1985, ch. 121 1/2, et seq. (now 815 ILCS 505/1 et seq. (West 1992)).) For the following reasons, we affirm in part, reverse in part, and remand this cause to the trial court for entry of judgment consistent with this opinion.

The record sets forth the following relevant facts. On January 10, 1984, the Hagins contracted with Kafka & Sons, Inc., (Kafka & Sons) a construction contractor, for remodeling projects in their home. On January 25, 1985, Prior Plumbing & Heating Company (Prior Plumbing), a subcontractor hired by Kafka, filed a complaint to foreclose a mechanics lien naming Hagins, Kafka & Sons and Kafka as defendants. On November 6, 1985, the Hagins filed an amended crossclaim and second amended crossclaim against Kafka and Kafka & Sons a/k/a Remodeling by Kafka, Inc. (Remodeling) alleging breach of contract, violation of the Consumer Fraud Act, and intentional infliction of emotional distress. Among the acts identified in the Hagins' second amended crossclaim as a basis for liability were: Kafka & Sons's stopping work after gutting the interior of the Hagins' home; untimely completion of work; work not in compliance with applicable housing code requirements; and work that was either not performed or was performed in a defective manner.

Kafka also filed crossclaims and countercomplaints on behalf of himself and Kafka & Sons a/k/a Remodeling, alleging that Prior Plumbing damaged the bathroom wall in the Hagins' home, and that the Hagins refused to allow Kafka & Sons to complete performance of their construction contract.

On March 21, 1986, the trial court granted the Hagins' motion to transfer the case to the Law Division and to file a jury demand. Hagins' subsequent discovery efforts were unsuccessful.

On October 11, 1990, an agreed order was entered imposing liability against Remodeling for its failure to comply with discovery. Repeated court orders were also entered compelling responses to discovery and Kafka's appearance for his deposition.

On November 1, 1990, Hagins moved for entry of judgment andfor other sanctions against Kafka. Hagins' motion detailed Kafka's refusal to comply with the court's discovery orders. The court ordered Kafka to appear for his deposition and awarded Hagins' attorneys fee and costs, with the amount to be supported by a fee petition. On November 2, 1990, Kafka was ordered to appear for his deposition at a later date. When Kafka failed to appear, the court entered judgment against him individually, for failure to comply with discovery, and barred Remodeling from participating at the hearing on damages.

On November 9, 1990, Kafka moved to vacate the default. The court set yet another date for Kafka to appear for his deposition. On November 14, 1990, the court entered an order finding that Kafka's answers at his November 12 deposition were unresponsive, and ordered completion of his deposition by November 28. Kafka failed to appear.

On January 11, 1991, the court denied Kafka's motion for reconsideration of the judgment entered against him and set the matter for a hearing on the Hagins' damages. On that same day, the Hagins filed an affidavit and petition for attorneys fees.

On February 1, 1991, Kafka filed a motion to stay proceedings on the Hagins' petition for attorneys fees. On February 11, Kafka moved to vacate the orders entered against him on the grounds that he "suffers from a multitude of physical, medical, and psychological disorders, which account for the conduct that the Court has sanctioned."

Kafka's motion to vacate on the grounds of incompetency resulted in additional discovery, which in turn led to Kafka's failure to comply with new discovery obligations. On June 28, 1991, the trial court struck Kafka's motion to vacate on the grounds of incompetency. On August 7, 1991, the court ordered Kafka to pay the Hagins attorneys fees in the amount of $13,474.25 on or before August 14, 1991, in connection with the Hagins' petition for sanctions and attorneys fees. The court further granted the Hagins' motion to withdraw their jury demand.

On August 9, 1991, the trial court denied Kafka's motion for a jury trial. Thereafter, the Hagins filed a second petition for sanctions and for attorneys fees incurred in connection with Kafka's "incompetency" motion. Following a hearing on the Hagins second petition, the trial court entered an order on October 18, 1991, awarding attorneys fees and costs in the amount of $17,401.15. On September 20, 1991, and November 5, 1991, Kafka posted two appeal bonds to stay execution of the ...


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