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10/30/97 KENNETH WRIGHT AND MARY C. WRIGHT v.

October 30, 1997

KENNETH WRIGHT AND MARY C. WRIGHT, PLAINTIFF-APPELLEES,
v.
DESATE, INC., ET AL., DEFENDANTS, AND SEARS ROEBUCK & COMPANY, DEFENDANT-APPELLANT, CROSS-APPELLEE. - SEARS ROEBUCK & COMPANY, THIRD-PARTY PLAINTIFF, V. SIGNAL DELIVERY SERVICE, INC., THIRD-PARTY DEFENDANT.



Appeal from the Circuit Court for the 13th Judicial Circuit, LaSalle County, Illinois. No. 92--L--352. Honorable Louis J. Perona, Judge, Presiding.

Released for Publication December 5, 1997.

Present - Honorable William E. Holdridge, Justice, Honorable Thomas J. Homer, Justice, Honorable Peg Breslin, Justice. Justice Breslin delivered the opinion of the court. Holdridge and Homer, JJ., concur.

The opinion of the court was delivered by: Breslin

The Honorable Justice BRESLIN delivered the opinion of the court:

In this appeal, we are asked to determine whether Supreme Court Rule 219(e) (Official Reports Advance Sheet No. 20 (Sept. 27, 1995), R. 219(e), effective Jan. 1, 1996) limits the plaintiff's right to a voluntary dismissal when the plaintiff voluntarily dismisses a suit to avoid the impact of discovery sanctions. We are also asked to determine whether the written order set forth the reason for the sanction with sufficient detail to satisfy Supreme Court Rule 219(c) (Official Reports Advance Sheet No. 20 (Sept. 27, 1995), R. 219(c), effective Jan. 1, 1996) when it gave no specific reason for barring the witnesses' testimony. We hold that Supreme Court Rule 219(e) permits a voluntary dismissal even when the dismissal is prompted by discovery sanctions. We also hold that when considered in concert with the record, the written sanction order satisfies the statutory requirements of specificity under Rule 219(c). Accordingly, we affirm.

FACTS

Plaintiffs Kenneth and Mary Wright filed a complaint against defendant Sears Roebuck & Co. (Sears) and several other defendants after Kenneth was injured while unloading a truck at a Sears warehouse. He alleged that Sears improperly packaged the boxes and failed to clean the trailer before loading it. In the days leading up to the trial, the parties filed several motions. In one of these written motions, Sears sought to bar testimony of two of the Wrights' expert witnesses because the Wrights had not responded to discovery requests in a timely manner. Both parties filed briefs in support of their position on this motion. Without stating any basis for the determination in the written order, the trial court granted the motion. Thereafter, the Wrights filed a written motion to reconsider. At the conclusion of the hearing on this motion, the court stated:

"I think it should have been abundantly clear to the plaintiff, and I think I made it clear, that the case would not be continued beyond December and that it would be tried this year. And then to wait until the middle of November to notice up the evidence depositions of two essential witnesses seems to me to be a pretty fast and loose method of handling cases.

I have never barred testimony before, but I think this case requires it and I am going to deny the motion to reconsider."

The Wrights then filed a motion to voluntarily dismiss their case, and that motion was granted over Sears's objection. Both parties appeal.

ARGUMENT(S)

The first question we must answer is whether Supreme Court Rule 219(e) bars a party from voluntarily dismissing a case when the movant's purpose for doing so is to avoid the impact of a discovery order.

Rule 219(e) provides:

"A party shall not be permitted to avoid compliance with discovery deadlines, orders or applicable rules by voluntarily dismissing a lawsuit. In establishing discovery deadlines and ruling on permissible discovery and testimony, the court shall consider discovery undertaken (or the absence of same), any misconduct, and orders entered in prior litigation involving a ...


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