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Marren Builders, Inc. v. Lampert

October 22, 1999

MARREN BUILDERS, INC., PLAINTIFF-APPELLANT,
V.
THOMAS LAMPERT AND JANE LAMPERT, DEFENDANTS-APPELLEES
(GARY-WHEATON BANK, ST. PAUL FEDERAL SAVINGS AND LOAN ASSOCIATION, MIDAMERICA FEDERAL SAVINGS AND LOAN ASSOCIATION, )
ITT SMALL BUSINESS FINANCE CORPORATION, AND OTHER UNKNOWN OWNERS AND LIENHOLDERS, DEFENDANTS)



SYLLABUS BY THE COURT

Appeal from the Circuit Court of Du Page County. No. 96-CH-1046 Honorable Bonnie M. Wheaton, Judge, Presiding.

The opinion of the court was delivered by: Justice Hutchinson

Modified Upon Denial of Rehearing

This appeal arises from a default judgment order granted in favor of defendants, Tom and Jane Lampert, and against plaintiff, Marren Builders, Inc., on defendants' counterclaim. The trial court's order also dismissed plaintiff's complaint for want of prosecution. Plaintiff contends that the trial court abused its discretion in denying its subsequent motion to vacate and reopen discovery. We affirm.

The record on appeal reflects that in November 1996 plaintiff filed a verified complaint against defendants, Tom Lampert, Jane Lampert, Gary-Wheaton Bank, St. Paul Federal Savings and Loan Association, MidAmerica Federal Savings and Loan Association, ITT Small Business Finance Corporation, and other unknown owners and lienholders, to foreclose on a mechanic's lien and seek $33,825 in damages for breach of contract. Tom and Jane Lampert are the only defendants remaining as parties to this appeal. In December 1996 defendants Tom and Jane Lampert (defendants) filed their verified answer and affirmative defenses to plaintiff's complaint. Defendants also filed a verified counterclaim against plaintiff for breach of contract, seeking damages of $20,562. In February 1997 plaintiff filed its unverified answer to defendants' affirmative defenses and filed its unverified answer to defendants' counterclaim.

In June 1997 upon plaintiff's motion, the trial court continued a scheduled case management conference. In July 1997 the trial court continued the parties' status hearing to November 1997. On October 30, 1997, defendants filed a motion to compel plaintiff to comply with their written discovery requests--interrogatories and request for production of documents--and the trial court ordered plaintiff to do so by November 14, 1997.

On November 17, 1997, the trial court dismissed plaintiff's cause of action for want of prosecution and set a hearing date for December 17, 1997, on defendants' counterclaim. On December 15, 1997, plaintiff filed a motion to vacate the trial court's dismissal order. On December 17, the trial court entered an order granting defendants a default judgment against plaintiff on defendants' verified counterclaim and setting the matter for prove-up on defendants' verified counterclaim on January 22, 1998. On January 16, 1998, plaintiff filed its motion to vacate the default judgment entered against it on defendants' counterclaim.

On January 22, 1998, counsel for plaintiff appeared for a hearing before the trial court. The trial court's order reflects that the November 17, 1997, dismissal for want of prosecution was vacated and plaintiff's complaint was reinstated, and the December 17, 1997, default on defendants' counterclaim was vacated. The trial court also ordered plaintiff to respond to defendants' discovery requests by February 2, 1998, and granted defendants leave to file a petition for fees. The trial court set the case for trial on May 12, 1998.

On February 17, 1998, defendants filed a motion for default judgment and sanctions, based on plaintiff's failure to comply with defendants' discovery requests and the trial court's orders regarding plaintiff's compliance with discovery. The trial court's order of the same date reflects that the matter was set for hearing on March 3, 1998.

On March 3, 1998, the trial court entered an order continuing the hearing and argument to March 10, 1998. The trial court's order also states that "[p]laintiff or its attorney is to be prepared for argument, and must appear. There will be no further continuances. Further, if plaintiff fails to appear[,] defendants' motion will be granted sua sponte." (Emphasis in original.)

On March 10, 1998, the trial court denied defendants' motion for a default judgment but granted their motion for sanctions. The trial court ordered plaintiff to pay defendants $1,800 for attorney fees.

On May 7, 1998, defendants filed a motion for sanctions against plaintiff based on plaintiff's allegedly non-responsive and incomplete answers to defendants' interrogatories. Defendants requested sanctions, including dismissing plaintiff's complaint, barring plaintiff from introducing any evidence not previously disclosed, and reasonable attorney fees. In its written order dated May 7, the trial court barred plaintiff from introducing evidence not previously disclosed in its answers to defendants' interrogatories.

On May 12, 1998, the date set for trial, neither plaintiff nor plaintiff's counsel appeared. The trial court dismissed counts I and II of plaintiff's complaint for want of prosecution. The trial court entered judgment in favor of defendants on their counterclaim and against plaintiff in the amount of $20,562 plus costs. The order also stated that there was no reason to delay enforcement or appeal of the judgment.

On May 22, 1998, plaintiff filed motions to substitute counsel, vacate the May 12 judgment, and reopen discovery. Plaintiff attached an affidavit from Brian Marren, its president. Marren stated that he had retained attorney Derek Edens to handle the litigation and he had telephone conferences with Edens regarding the status of the litigation. Marren stated that he received defendants' discovery requests, to which he promptly responded, and returned them to Edens. Marren received a correspondence from Edens ...


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