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R.M. Lucas Company and Chicago Title Land Trust No. 3000121848 v. the Peoples Gas Light and Coke Company

December 14, 2011

R.M. LUCAS COMPANY AND CHICAGO TITLE LAND TRUST NO. 3000121848,
PLAINTIFFS-APPELLANTS,
v.
THE PEOPLES GAS LIGHT AND COKE COMPANY, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County No. 08 L 2572 Honorable Ronald S. Davis, Judge Presiding.

The opinion of the court was delivered by: Justice Murphy

JUSTICE MURPHY delivered the judgment of the court, with opinion.

Presiding Justice Steele and Justice Salone concurred in the judgment and opinion.

OPINION

¶ 1 Plaintiffs, R.M. Lucas Co. (Lucas) and Chicago Title Land Trust No. 3000121848 (Land Trust), appeal from an order of the circuit court of Cook County denying their petition to vacate the court's dismissal of their action with prejudice. On appeal, plaintiffs contend that the court erred by denying their petition to vacate where they set forth a meritorious claim of negligence and were diligent in presenting their claim and filing their petition to vacate. Plaintiffs further contend that dismissal of their action was an inappropriate sanction. For the reasons that follow, we affirm.

¶ 2 BACKGROUND

¶ 3 On March 6, 2008, plaintiffs filed a one-count complaint alleging negligence against defendant, The Peoples Gas Light and Coke Company, in connection with a fire/explosion in a building at 3211 South Wood Street in Chicago. Plaintiffs asserted that the incident occurred on March 10, 2006, and that the property constituted Lucas's principal place of business and was owned by the Land Trust. Plaintiffs further asserted that defendant owned the gas meter and gas main for that building and had a duty to ensure that its gas line, fittings, meter, and valves were properly installed and were maintained in a safe and reasonable manner. Plaintiff alleged that defendant breached its duty in numerous ways and that they had suffered property damage and incurred expenses as a direct and proximate result of those breaches.

¶ 4 Defendant filed its appearance and answer, and on July 1, 2008, the circuit court entered a case management order in which it directed that discovery was to be completed by October 28, 2008, and scheduled a case management conference for January 6, 2009. On August 19, 2008, defendant served plaintiffs with interrogatories and a request for production of documents. On January 6, 2009, the court entered a second case management order in which it directed that discovery was to be completed by June 30, 2009.

¶ 5 On June 15, 2009, defendant filed a motion to compel plaintiffs to answer its outstanding interrogatories and request for production of documents. Defendant asserted that on October 17, 2008, and May 18, 2009, it had sent letters to plaintiffs pursuant to Illinois Supreme Court Rule 201(k) (eff. July 1, 2002) requesting responses to its discovery requests. On June 24, 2009, the court entered a third case management order in which it directed plaintiffs to respond to defendant's outstanding discovery requests by July 3, 2009, and scheduled a case management conference for July 15, 2009.

¶ 6 On September 16, 2009, defendant filed a motion for sanctions against plaintiffs pursuant to Illinois Supreme Court Rule 219(c)(v) (eff. July 1, 2002) in which it requested the court dismiss plaintiffs' complaint with prejudice for their repeated failure to respond to its outstanding interrogatories and request for production of documents. Defendant asserted that plaintiffs had failed to comply with discovery rules and the court's orders regarding its discovery requests and that dismissal was the only reasonable remedy. On September 24, 2009, the court entered an order continuing the motion for sanctions and requiring plaintiffs to answer defendant's interrogatories by October 1, 2009. On October 5, 2009, the court granted defendant's motion for sanctions, dismissed plaintiffs' complaint with prejudice, and stated that if plaintiffs complied with all outstanding discovery requests by November 9, 2009, it might consider vacating the dismissal. On November 9, 2009, plaintiffs filed a motion requesting the court extend the date of discovery compliance to November 20, 2009, due to a medical emergency concerning plaintiffs' counsel's daughter. Plaintiffs' motion was noticed for presentment, and on November 20, 2009, it was stricken from the call.

¶ 7 On June 4, 2010, plaintiffs filed a petition brought pursuant to section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2008)) to vacate the circuit court's dismissal of their action. Plaintiffs asserted that they had been represented by Eugene W. Beeler, Jr., who had been their counsel for approximately 35 years and had become a trusted advisor to John L. Barry, the president and sole shareholder of Lucas and the beneficiary of the Land Trust. Barry related in his signed affidavit attached to the petition that he and Beeler had been in regular communication from the time of the incident until October 2009, when Beeler stopped answering his phone calls and returning his messages. During that time, Beeler had not informed Barry of defendant's discovery requests, the court's orders, defendant's motion for sanctions, the court's dismissal of the action, or plaintiffs' motion for an extension of time to respond to the discovery requests. Despite repeated attempts to contact Beeler, Barry was unable to obtain any information from him regarding the case from mid-October 2009 to late-February 2010, at which time he asked another attorney to check the court file and learned that the action had been dismissed. On March 16, 2010, plaintiffs retained new counsel, who familiarized himself with the case and Beeler's conduct and filed the petition at issue as soon as possible.

¶ 8 Plaintiffs maintained that they were entitled to relief from the dismissal of their action because they had set forth a meritorious negligence claim against defendant and were diligent in presenting their claim and in bringing their section 2-1401 petition. Plaintiffs also maintained that the equities warranted vacating the dismissal of their action where Beeler actively and knowingly concealed material information regarding the status of their case and dismissal with prejudice was the initial sanction imposed by the circuit court.

¶ 9 Plaintiffs also attached a signed affidavit from professional engineer Kim Mniszewski to their petition in which he related that he had investigated the explosion giving rise to plaintiffs' complaint, that the explosion was caused by a gas leak stemming from a separated gas fitting in defendant's service equipment, and that it was unlikely that Lucas employees contributed to the explosion. Plaintiffs also attached a gas incident report from the Illinois Commerce Commission (ICC) which related that the ICC pipeline safety staff had determined that the probable cause of the explosion was a natural gas leak arising from a polyethylene service pipe that had become separated from the service head adapter to which it had been attached.

ΒΆ 10 On August 12, 2010, defendant filed a response to plaintiffs' section 2-1401 petition in which it asserted that plaintiffs' failure to respond to its discovery requests and the court's orders was not excused by their counsel's negligence and that dismissal was an appropriate sanction. Defendant also asserted that plaintiffs had not acted with diligence in filing their petition to vacate where it was not filed until three months after Barry had allegedly learned of the dismissal of plaintiffs' claim. Plaintiffs filed ...


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