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Donald Rosen v. the Larkin Center

December 28, 2012


Appeal from the Circuit Court of Kane County. No. 08-L-552 Honorable James R. Murphy, Judges, Presiding.

The opinion of the court was delivered by: Justice Schostok

JUSTICE SCHOSTOK delivered the judgment of the court, with opinion. Justices Hutchinson and Birkett concurred in the judgment and opinion.


¶ 1 Plaintiff, Donald Rosen, appeals two trial court orders that contributed to the grant of summary judgment in favor of defendants, The Larkin Center, Inc., and Dennis Graf*fn1 ; Larkin is an agency that provides special education and care to students through its therapeutic day school. Those orders that plaintiff appeals are: (1) the discovery sanction barring plaintiff from testifying; and (2) the denial of plaintiff's motion for leave to file an amended complaint. We affirm.


¶ 3 The present litigation arose after defendant terminated plaintiff from his position as chief financial officer (CFO). One of the functions of the CFO was to negotiate funding rates on behalf of Larkin with various state agencies. On September 23, 2008, plaintiff filed a complaint against defendant, alleging the following facts. Graf, chief executive officer of Larkin, hired plaintiff in January 2001, to act as CFO for Larkin. In April 2003, plaintiff became a licensed attorney. According to the complaint, Graf orally retained plaintiff to provide legal services to Larkin, which plaintiff provided. Plaintiff sought payment for those legal services in the amount of $94,125. Count I of the complaint alleged breach of contract, claiming that defendant breached its oral contract with plaintiff by failing to pay him for his legal services. Count II of the complaint alleged quantum meruit, claiming that plaintiff spent significant time as an attorney working for defendant's benefit. The complaint alleged that defendant enjoyed the benefits of plaintiff's services by receiving state funds and that plaintiff was owed fair and reasonable value for his services. Plaintiff attached numerous invoices on letterhead for "The Law Office of Donald Rosen."

¶ 4 On February 5, 2009, plaintiff moved for leave to file an amended complaint, requesting to add a third count, alleging a statutory claim for recovery from illegal gambling conducted by defendant. This motion was denied for reasons stated on the record.*fn2 Meanwhile, defendant sought to quash a subpoena issued for a deposition of a Larkin employee and overly broad document requests. The court ordered the parties to move forward on the deposition, but it also ordered plaintiff to issue new document requests that were more specific. A flurry of discovery motions and alleged violations of discovery rules went back and forth for several months.

¶ 5 On January 14, 2010, the court ordered plaintiff to tender all outstanding discovery answers to defendant within 14 days, and it noted that it would consider sanctions if plaintiff failed to comply. On February 4, 2010, defendant filed a motion for sanctions pursuant to Illinois Supreme Court Rule 219(c) (eff. July 1, 2002) and for dismissal with prejudice for want of prosecution, alleging that plaintiff failed to answer interrogatories served upon him in September 2009. Defendant alleged in its motion that: the discovery was initially due on October 27, 2009; it made reasonable attempts by written correspondence to obtain answers from plaintiff; on November 16, 2009, and January 4, 2010, it sent plaintiff correspondence pursuant to Illinois Supreme Court Rule 201(k) (eff. July 1, 2002); the trial court entered the January 14 order advising plaintiff that discovery was due by January 28; and plaintiff had not yet tendered any responses.

¶ 6 On March 10, 2010, the court denied defendant's motion to dismiss for want of prosecution; reserved the issues related to defendant's motion for sanctions; and ordered both parties to file within 21 days any motion seeking to compel discovery or seeking rulings on any discovery matter. It further ordered that it would hear all motions regarding written discovery on April 28. Defendant filed a motion for sanctions by March 31. On April 6, plaintiff filed a motion to compel defendant to comply with his discovery request.

¶ 7 On May 26, 2010, after another flurry of discovery-related motions by both parties, the court entered an order stating that it would continue to reserve the issues related to defendant's motion for sanctions. It further ordered plaintiff to tender answers to defendant's interrogatories within 14 days and both parties to conduct an in-person Rule 201(k) conference within 30 days to address all outstanding discovery issues. The court continued the case to July 21. On that day, the court ordered defendant to produce documents related to plaintiff's job description and his termination by July 28 and continued the matter.

¶ 8 On August 18, 2010, defendant again filed a motion to compel discovery and for sanctions. It alleged that, following the court-ordered Rule 201(k) conference, plaintiff agreed to produce certain documents and then failed to do so. Further, defendant argued that the documents that plaintiff tendered were incomplete. The parties continued to file additional motions to compel, resulting in a court order on October 6, 2010. On that date, the court ordered plaintiff to produce certain documents and denied plaintiff's motion to compel certain documents pertaining to his termination, stating that the basis for producing those documents was not within the scope of the matters at issue in the complaint. However, the court ordered defendant to produce certain documents and information as requested by plaintiff.

¶ 9 On November 23, 2010, after more motions were filed by both parties, the trial court ordered the parties to finalize written discovery and conduct party depositions. It set the matter for a status hearing on February 22, 2011. On March 16, 2011, defendant again moved for sanctions and dismissal. Defendant argued that plaintiff most recently violated discovery rules by failing to appear for his scheduled deposition. Plaintiff's deposition was scheduled for February 16, 2011, and he was properly notified. Defendant never received any notice or communication from plaintiff regarding his failure to communicate, his absence from the scheduled deposition, or dates to reschedule. On April 7, 2011, the trial court entered an order that stated as follows: (1) defendant's motion for sanctions and to dismiss for want of prosecution was granted in part and denied in part; (2) defendant's request for dismissal was denied, but plaintiff was barred from testifying in the matter;

(3) defendant was granted leave to file a petition for costs and attorney fees related to preparing for and attending plaintiff's scheduled deposition on February 16, 2011, and related to the filing of defendant's most recent motion for sanctions; and (4) the matter was continued to April 26, 2011. It does not appear from the record that plaintiff was present for the April 7 hearing.

ΒΆ 10 On April 20, 2011, defendant filed its petition for costs and attorney fees, seeking $6,956.52 related to plaintiff's refusal to cooperate and appear for his deposition. A group exhibit was filed to support the fees, but the exhibit was excluded from the public court file due to the confidential nature of the documents. As such, it is not contained in the record on appeal. On April 26, plaintiff filed a motion to vacate the April 7 order, arguing that his 80-year-old mother's knee collapsed the week before the April 7 hearing. Plaintiff's mother was scheduled for surgery on April 27, and plaintiff went to Arizona to care for ...

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