{ "id": 3555390, "name": "WILLIAM MUELLER, d/b/a Wil-Kare Typographers, Plaintiff-Appellant, v. INSURANCE BENEFIT ADMINISTRATORS, INC., Defendant-Appellee", "name_abbreviation": "Mueller v. Insurance Benefit Administrators, Inc.", "decision_date": "1988-10-07", "docket_number": "No. 85-3418", "first_page": "587", "last_page": "599", "citations": [ { "type": "official", "cite": "175 Ill. App. 3d 587" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "476 N.E.2d 1232", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "132 Ill. App. 3d 408", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3442636 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/132/0408-01" ] }, { "cite": "469 N.E.2d 708", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "127 Ill. App. 3d 894", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3563841 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/ill-app-3d/127/0894-01" ] }, { "cite": "504 N.E.2d 772", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "152 Ill. App. 3d 524", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3575904 ], "weight": 3, "year": 1984, "opinion_index": 0, "case_paths": [ "/ill-app-3d/152/0524-01" ] } ], "analysis": { "cardinality": 848, "char_count": 30262, "ocr_confidence": 0.752, "pagerank": { "raw": 7.777280886583333e-08, "percentile": 0.45646792535008796 }, "sha256": "ae0ebc2e9f7212d973cc22ec3b9339dc620f25e208f2ff2fdd64c465ccf857af", "simhash": "1:13ba688e454b824a", "word_count": 4816 }, "last_updated": "2023-07-14T17:24:13.630237+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "WILLIAM MUELLER, d/b/a Wil-Kare Typographers, Plaintiff-Appellant, v. INSURANCE BENEFIT ADMINISTRATORS, INC., Defendant-Appellee." ], "opinions": [ { "text": "JUSTICE PINCHAM\ndelivered the opinion of the court:\nPlaintiff, William Mueller, d/b/a Wil-Kare Typographers, initiated this action against the defendant, Insurance Benefit Administrators, Inc. The trial court granted defendant\u2019s motion for sanctions and imposed $625.50 in sanctions against plaintiff, ostensibly because of plaintiff\u2019s failure to appear for his deposition, and dismissed plaintiff\u2019s complaint with prejudice for plaintiff\u2019s failure to pay the sanctions. Plaintiff appeals. The issues presented for review are: (1) whether the trial court erred in imposing sanctions of $625.50 against plaintiff purportedly for his failure to appear for his deposition; and (2) whether the trial court erred in dismissing plaintiff\u2019s complaint with prejudice for his failure to pay the sanctions. We reverse.\nOn September 25, 1984, plaintiff filed an action in contract against defendant. Subsequently, on June 4, 1985, defendant filed a counterclaim against plaintiff and a third-party complaint against third-party defendants John Martin, individually and d/b/a The Communicators, BIJO, Inc., and BLC Graphics, Inc. The counterclaim and third-party complaint were not related to plaintiff\u2019s complaint and alleged a separate cause of action for fraud and breach of a fiduciary duty. No summons were served on the third-party defendants.\nOn August 9, 1985, plaintiff\u2019s attorney was served with notice for the taking of the deposition of third-party defendant John Martin on September 4, 1985, and also for the taking of plaintiff\u2019s deposition on September 5, 1985, at the office of the defendant\u2019s attorney in Hillside, Illinois. Two weeks later, on August 26, 1985, the efforts of the litigants and their attorneys culminated in a proposed comprehensive settlement agreement. The proposed settlement agreement provided that in case No. 84 \u2014 M5\u2014648, Insurance Benefit Administrators v. John Martin and BIJO, Inc., which was pending on appeal in the First Judicial District under case No. 84 \u2014 2825, defendants, John Martin and BIJO, Inc., would execute a release and satisfaction of judgment entered on October 11, 1984, in favor of Insurance Benefit Administrators, Inc., and the appeal was to be dismissed. The proposed settlement agreement further provided that the complaint and counterclaim in the instant case were to be dismissed with prejudice. The proposed settlement agreement additionally provided that in another case, No. 84 \u2014 1035, separate $10,000 judgments would be entered against John Martin and William Mueller, plaintiff herein, in favor of Insurance Benefit Administrators. The terms of payment of the judgments were set forth in the intended settlement agreement. The proffered settlement agreement was set forth in a letter from the defendant\u2019s attorney dated August 26, 1985. Apparently because of the negotiations in the tendered settlement agreement, plaintiff did not appear for his deposition at the defendant\u2019s attorney\u2019s Hillside office on September 5, 1985. Fifteen days later, on September 20, 1985, the defendant\u2019s attorney filed interrogatories which were to be answered by plaintiff within 26 days. Also, on September 20, 1985, the defendant\u2019s attorney presented to the trial court a \u201cMotion to Compel Discovery and for sanctions,\u201d which alleged that plaintiff William Mueller failed to appear for his September 5, 1985, deposition. Defendant\u2019s motion prayed, inter alia, that further proceedings in the case be stayed until the taking of plaintiff\u2019s deposition.\nThe record before us, on this appeal, is replete with numerous and repeated motions and petitions for sanctions and rules to show cause against the attorneys, from which it appears that perhaps the attorneys were diverted from pursuing the cause of their litigant clients to engaging in affronts and vendettas toward each other. The record on appeal also contains an order entered by the trial court on September 20,1985, which states:\n\u201cThis cause coming on to be heard on plaintiff\u2019s motion to dismiss the counterclaim and defendant\u2019s motion to compel discovery. It is hereby ordered that the motion to dismiss is filed and defendant shall answer within 10 days and hearing is set for 10-10-85.\nThe deposition of William Mueller is set for 10-3-85 at 11:00 A.M.\nDefendant\u2019s motion for sanctions is entered and continued to 10-10-85.\u201d (Emphasis added.)\nIt is noteworthy that this foregoing order merely set the date and hour for William Mueller\u2019s deposition. The order did not designate the place for the taking of Mueller\u2019s deposition, and it did not order Mueller to appear.\nPlaintiff William Mueller did not appear for his deposition on October 3, 1985, apparently because on that date his attorney, pursuant to notice to defendant\u2019s attorney, appeared on October 3, 1985, before and presented to the trial court a motion to enforce the preferred settlement agreement and \u201cdismiss the suit and counterclaim and third-party complaint *** for the reason that all motions in controversy have been settled and adjudged by the parties pursuant to a written letter of settlement written by [defendant\u2019s attorney] dated August 26, 1985.\u201d Defendant\u2019s attorney filed a \u201cresponse to plaintiff\u2019s motion to enforce settlement agreement and dismiss suit,\u201d in which defendant objected to and prayed for denial of plaintiff\u2019s motion and requested the cause be set for trial.. The trial court set plaintiff\u2019s motion to enforce the settlement agreement and to dismiss for an evidentiary hearing on October 17,1985.\nAlso, on October 3, 1985, because the third-party defendant, John Martin, had not been served with summons or a copy of defendant\u2019s third-party complaint, the trial court granted defendant\u2019s attorney\u2019s motion for the appointment of a special process server to serve John Martin.\nOn October 11, 1985, a week before the evidentiary hearing of October 17, 1985, on plaintiff\u2019s motion to enforce the proposed settlement agreement and dismiss the suit, the defendant\u2019s attorney presented to the trial court defendant\u2019s \u201camended motion for sanctions and for a rule to show cause.\u201d This motion incorrectly alleged, contrary to the language of the foregoing September 20, 1985, order, that \u201con September 20, 1985 this court ordered the plaintiff, William Mueller, to appear at the office of defendant\u2019s counsel to be deposed on October 3, 1985.\u201d The September 20, 1985, order did not order plaintiff to appear at the office of defense counsel on October 3, 1985. The motion further alleged that plaintiff, William Mueller, \u201cfailed to appear as ordered on October 3, 1985, and failed to inform counsel in advance of that failure.\u201d The motion prayed that \u201cthis court enter a rule against the plaintiff, William Mueller, to show cause if any he can why he should not be held in contempt of court for failure to obey its lawful orders.\u201d The motion additionally requested, inter alia, \u201csanctions against William Mueller as follows: (1) costs and attorney fees in a reasonable amount.\u201d On October 11, 1985, the trial court entered the following order:\n\u201cThis cause coming to be heard on defendant\u2019s amended motion for sanctions, notice having been given and the Court being fully advised in the premises:\n1. William Mueller without good cause, failed to appear for deposition on 10-3-85 as ordered by this court on 9-20-85.\n2. William Mueller, without good cause, failed to appear for deposition on 9-5-85, pursuant to notice.\n3. William Mueller has failed to answer interrogatories propounded by defendant pursuant to Supreme Court Rules.\n4. As a result of Mueller\u2019s conduct plaintiff has expended $81.00 costs and attorney fees.\nIt is therefore ordered:\n1. IBA\u2019s motion for sanctions is sustained.\n2. Mueller shall pay to IBA $81.00 costs.\n3. Hearing to determine amount of attorney fees and extent of other sanctions is set for 10-17-85 at 10:10 without notice.\n4. Mueller shall appear for deposition at office of IBA on 5600 Wolf Rd. on 10-15-85 at 10:00 a .to. for deposition and shall then and there produce answers to interrogatories.\u201d (Emphasis added.)\nThe record reflects that plaintiff\u2019s attorney was not present in court and he therefore was unable to comment upon or oppose the entry of this October 11,1985, order.\nIn compliance with this trial court order of October 11, 1985, plaintiff, William Mueller, appeared at the office of Insurance Benefit Administrators on 5600 Wolf Road on October 15, 1985, at 10 o\u2019clock to give his deposition. However, plaintiff\u2019s attorney did not appear. Plaintiff\u2019s attorney called defendant Insurance Benefit Administrators\u2019 attorney, informed him that he was unable to appear for plaintiff\u2019s deposition and requested of defendant\u2019s attorney that plaintiff\u2019s deposition be postponed to a date after the October 17, 1985, evidentiary hearing of plaintiff\u2019s motion to enforce the settlement agreement and dismiss the suit. Defendant\u2019s attorney refused to agree to a postponement of plaintiff\u2019s deposition. Plaintiff waited in defense counsel\u2019s office for three hours, until 1 p.m., to give his deposition. He departed with defense counsel\u2019s approval, and pursuant to defense counsel\u2019s direction, plaintiff repeatedly checked back every hour at defense counsel\u2019s office to see if his attorney had arrived, in which event plaintiff was to give his deposition. Plaintiff\u2019s attorney did not appear and in his absence plaintiff was not deposed.\nTwo days later, on October 17, 1985, at 9:15 a.m., defendant\u2019s attorney presented to the trial court a \u201cSupplemental Motion for Sanctions and for rule to show cause.\u201d Defendant\u2019s supplemental motion also incorrectly and contrary to the September 20, 1985, order stated that \u201con September 20, 1985 this court entered an order compelling William [Mueller, plaintiff,] to appear for deposition on October 3, 1985 at the office of defense counsel.\u201d Defendant\u2019s supplemental motion further alleged that on October 11, 1985, the court \u201cordered Mueller to appear for a deposition on October 15, 1985\u201d and that \u201cnotwithstanding the said orders, defense counsel, absolutely without notice, failed to appear for the deposition on October 15 and *** Mueller refused to proceed with the deposition in the absence of counsel.\u201d Defendant\u2019s supplemental motion prayed that defendant\u2019s attorney be awarded reasonable attorney fees, that plaintiff William Mueller\u2019s pleadings be stricken with prejudice, and that a rule be entered \u201cagainst William Mueller and his counsel to show cause why they should not be held in contempt of court for failure to obey its lawful orders.\u201d\nOn the presentation of defendant\u2019s supplemental motion for sanctions and a rule to show cause, defendant\u2019s counsel stated to the court that plaintiff appeared for his deposition as ordered. Defendant\u2019s attorney informed the trial court:\n\u201cON OCTOBER 15TH YOUR HONOR, MR. MUELLER [PLAINTIFF] DID APPEAR AT MY OFFICE. HIS ATTORNEY DID NOT APPEAR, did not give notice. He called me at 10:00 o\u2019clock in the morning and said he wasn\u2019t coming, and Your Honor if put under oath I will say what he said to me was, I said we will wait here all day because he was under an order, and he said you can wait until the cows come home. And I did wait. I waited until 5:00 o\u2019clock and so did this court reporter sitting next to me. *** THE PLAINTIFF, MR. MUELLER WAITED FOR THREE HOURS AND THEREAFTER HE CHECKED IN EVERY HOUR AS I ASKED HIM TO DO TO DETERMINE WHETHER HIS COUNSEL HAD COME. *** I\u2019m also asking for your Honor that plaintiff\u2019s pleadings, all of them, be stricken and am asking for a rule against the defendant [sic] and his counsel, Your Honor.\u201d (Emphasis added.)\nPlaintiff\u2019s counsel\u2019s statement to defendant\u2019s counsel that he could \u201cwait until the cows come home\u201d was most unprofessional and such remarks should not be made by one attorney to another attorney who is being simply called upon to perform his professional responsibilities to his client, the court and to each other. Such unbefitting diatribe cannot be judicially condoned. Indeed, it is condemned. Nevertheless, in the absence of some contrary subsequent expression of intent by plaintiff\u2019s attorney that he would appear for plaintiff\u2019s deposition, it would seem that defendant\u2019s attorney\u2019s all-day wait, with a court reporter, for plaintiff\u2019s attorney\u2019s arrival was unjustified.\nIn response to the defendant\u2019s attorney\u2019s aforestated representations to the trial court, plaintiff\u2019s attorney replied:\n\u201cThere are two motions pending at this time which are both up for hearing this morning. One motion is based upon the fact that the same complaint has been filed in Federal Court and *** it\u2019s set for hearing this morning. *** [Tjhere is a second motion to dismiss based upon the fact that there has been a settlement of this case, and there is a motion to enforce the terms of the settlement which include dismissal of this lawsuit. That is up for an evidentiary hearing this morning.\n*** [The] defendant came in and filed a counter-complaint and also a third-party action. Now service of summons was never made upon the third-party defendants so the case is not right for trial or right for anything because the parties to the case are not even in the case. *** That party is not before the court at this time, so there is no date of trial set because the parties are not before the court and there is no date of closing of discovery at this point because *** the third-party defendants have not been brought before this court yet.\nNow, it\u2019s my position that the terms of the settlement agreement which are in the court file \u2014 .\u201d\nThe trial court interrupted, stating to plaintiff\u2019s attorney that he was not interested in the settlement agreement and that, \u201cI\u2019m interested in why my order and McCurrie\u2019s orders were not honored.\u201d Plaintiff\u2019s attorney responded:\n\u201cThe settlement agreement provides that the cases will be dismissed based upon the terms of the settlement and it is my position that the terms of the settlement \u2014 the settlement precludes proceeding with the merits of the case, which is both the discovery deposition and the interrogatories because the case is to be dismissed. Therefore, we should not be compelled to present an evidentiary deposition before the motion to dismiss based upon the settlement agreement is decided ***. [Defendant\u2019s attorney] is trying to rush into a discovery deposition before we can have our hearing on the motion to dismiss. And the purpose of the settlement agreement is to avoid the discovery deposition. He\u2019s trying to get the discovery deposition in before the court has an opportunity to rule that we don\u2019t have to give the discovery deposition because the case is to be dismissed pursuant to the settlement agreement.\u201d\nThe trial court directed plaintiff\u2019s attorney \u201cto get to the response to why you did not appear and give Mueller\u2019s deposition. That\u2019s the only thing I want to hear now, why you did not follow my order and Judge McCurrie\u2019s order.\u201d Plaintiff\u2019s attorney answered:\n\u201cI called [defendant\u2019s attorney] and told him that if we did not prevail on the motions to dismiss which are up this morning that we would appear for the deposition and answer the interrogatories immediately after that time.\n* * *\nWhen a deposition is set it\u2019s common practice for an attorney, if he\u2019s unavailable, to say let\u2019s continue it to next week. I asked Mr. Smith, I said let\u2019s make it for the 18th of October or the 19th or 20th. If we lose the motion to dismiss today we will present ourself for the deposition with you. *** If he wins where the case is not dismissed, there is no reason why the deposition can\u2019t go next week.\n*** [I] called [defendant\u2019s attorney] and said let\u2019s continue it. Do me this courtesy. Let\u2019s hear the motion to dismiss first. If we lose we present ourselves for the deposition. No, he wants it right now because he wants to subvest our motion to dismiss by proceeding with this in violation of the settlement agreement. As I say, if we lose the motion to dismiss today we will be in for a deposition at a very early date whenever it\u2019s convenient to [defendant\u2019s attorney]. We will present ourself and I have the answers to interrogatories with me today. If we lose the motion to dismiss we will file the answers to interrogatories today *** and we\u2019ll be in a deposition tomorrow or the next day or Saturday too, whenever he wants to take it.\u201d\nThereupon, the trial court replied and ruled:\n\u201cDealing with the sanctions and I find that the order was indiscriminately violated, and I assess costs in the sum of the court reporter\u2019s fees and fees of counsel for the Insurance Benefit Administrators, Inc. [defendant] in the sum of $500.00, and those fees and costs will be paid on or before the 28th day of October. And if they are not paid on or before that day, the cause of William Mueller versus Insurance Benefit Administrators, Inc. will be dismissed with prejudice. Draw the order.\u201d\nImplicit in the trial court\u2019s ruling and order was its rejection of plaintiff\u2019s attorney\u2019s proffered explanatory justifications for his failure to have appeared for plaintiff\u2019s deposition on October 15, 1985. We need not decide whether plaintiff\u2019s attorney\u2019s stated reasons were valid justifications for his failure to have appeared. Nor need we decide whether the reason attributed by plaintiff\u2019s attorney to defendant\u2019s attorney\u2019s persistence in taking plaintiff\u2019s deposition before the evidentiary hearing of plaintiff\u2019s motion to enforce the settlement agreement and dismiss the cause was valid. Plaintiff complied with the trial court\u2019s October 11, 1985, order. He appeared to be deposed as he was ordered. Plaintiff\u2019s attorney did not appear. The record establishes without contradiction that plaintiff\u2019s attorney called defendant\u2019s attorney at 10 a.m. and requested a postponement of plaintiff\u2019s deposition. From the tenor of the conversation, as related by defendant\u2019s attorney, \u201c[Y]ou can wait until the cows come home,\u201d it would appear that defendant\u2019s attorney should reasonably have anticipated that plaintiff\u2019s attorney was not going to appear for plaintiff\u2019s deposition, and that the defendant\u2019s attorney and his court reporter\u2019s all-day wait for plaintiff\u2019s attorney would be fruitless. Defendant\u2019s attorney and his court reporter therefore should not have been compensated for their day-long wait. More importantly, not one scintilla of evidence, not even a statement, was presented to the trial court regarding the attorney fees, or the value of the attorney\u2019s waiting services, or that defendant\u2019s attorney was precluded from transacting his other professional business during his chosen day-long wait. Additionally, it appears from plaintiff\u2019s attorney\u2019s foregoing proffered explanatory justifications to the trial court that plaintiff\u2019s attorney was of the good-faith opinion that defendant\u2019s attorney should not take, and plaintiff should not have been required to give, his deposition until after defendant\u2019s dismissal motion had been (adversely) ruled upon. Plaintiff\u2019s attorney\u2019s absence was not explained to the trial court when the order was entered on October 11, 1985, for plaintiff to appear to be deposed. It likewise appears that plaintiff\u2019s attorney was willing in good faith for plaintiff to be immediately deposed should plaintiff\u2019s dismissal motion be denied.\nNevertheless and in spite of the foregoing, the trial court entered the following order:\n\u201cThis cause coming to be heard on Insurance Benefit Administrators\u2019 supplemental motion for sanctions and evidentiary hearing for assessment of attorney fees, all parties being before the court and the court having considered the verified pleadings and heard evidence'.\nThis Court finds:\n1. Plaintiff William Mueller has wilfully violated the court\u2019s order of October 11, 1985, in that he has 3 times failed to appear for deposition as ordered.\n2. William Mueller shall pay over to plaintiff\u2019s counsel the following sums:\nA. The sum of $125.00 for court reporter fees.\nB. The sum of $500.00 attorney fees.\nThe said sum shall be paid prior to October 28, 1985. In the event plaintiff fails to make said payment his pleadings shall be stricken with prejudice.\u201d (Emphasis added.)\nFirst, this foregoing order erroneously states that the trial court \u201cheard evidence.\u201d The complete transcript of the October 17, 1985, proceedings before the trial court is contained in the record before us. The proceedings have the verified signatures of the certified court reporter and the trial court that the transcript contains \u201call the proceedings of said [October 17, 1985,]\u201d hearing. This transcript contains no \u201cevidence\u201d and it clearly reveals that no evidence was heard by the trial court, contrary to the language of the aforesaid order.\nSecond, this foregoing October 17, 1985, order erroneously states that \u201cplaintiff William Mueller has violated the court order of October 11, 1985 in that he has 3 times failed to appear for depositions as ordered.\u201d There were not three court orders directing plaintiff to appear for his deposition. There was only one court order which directed Mueller to appear for deposition and that was the October 11, 1985, order, which directed him to appear on October 15, 1985, at 10 o\u2019clock at defendant\u2019s attorney\u2019s office to be deposed. The record affirmatively establishes that plaintiff so appeared. Defendant\u2019s attorney not only did not dispute that Mueller appeared, defendant\u2019s attorney expressly admitted to the trial court, as set forth in the record before us and as previously set out herein, that Mueller appeared in his office on October 15, 1985, to give his deposition, that he remained there for three hours awaiting the arrival of his attorney, and after he left, pursuant to defendant\u2019s attorney\u2019s directions, Mueller made hourly checks at defendant\u2019s attorney\u2019s office to determine if his lawyer had arrived. Thus, it was erroneous and improper to impose any sanctions upon Mueller. If any, the sanctions should have been imposed against Mueller\u2019s attorney.\nThird, the October 17, 1985, order required that \u201cWilliam Mueller .shall pay to plaintiff\u2019s counsel the following sums\u201d of $125 for court reporter fees and $500 for attorney fees. Mueller was the plaintiff and by the terms of the order he was improperly ordered to pay his own attorney, the court reporter and attorney fees as sanctions against him. For these reasons the October 17, 1985, order was erroneous and void.\nAfter appearing before the trial court, as stated, in a second proceeding at 10:45 a.m. on October 17, 1985, before another judge, plaintiff\u2019s attorney presented and argued plaintiff\u2019s motion to enforce the proposed settlement agreement and dismiss the proceedings. The motion was denied.\nOn October 23, 1985, plaintiff presented a motion to vacate the October 17, 1985, order for fees and sanctions, which motion the trial court denied. On November 7, 1985, defendant filed a petition that the court enter a rule against plaintiff William Mueller to show cause why he should not be held in contempt of court for his failure to comply with the October 17, 1985, order and pay the sanctions imposed therein. The petition additionally prayed that plaintiff\u2019s pleadings be stricken with prejudice because of Mueller\u2019s failure to comply with the October 17, 1985, sanctions order. Mueller responded with an answer to defendant\u2019s petition for a rule to show cause and dismissal of plaintiff\u2019s suit, which answer set forth, inter alia, Mueller\u2019s affidavit that Mueller was \u201cwithout funds or money to pay the attorney fees of $500.00 and costs of $125.00 ordered on October 17, 1985,\u201d and \u201cthat I have not wilfully disobeyed the order of court of October 17, 1985, but I have not made the payment ordered because I am without the means or ability to make payment,\u201d and that, \u201cI own no real estate and I have no possessions that I can sell to obtain the money to make payment.\u201d But the trial court on October 17, 1985, had prejudged the merits of plaintiff\u2019s financial circumstances, when it then ruled that \u201cin the event plaintiff fails to make said payment his pleadings shall be stricken with prejudice.\u201d Having done so, on November 19, 1985, the trial court simply entered the following order:\n\u201cThe cause coming to be heard on defendant Insurance Benefit Administrators\u2019 petition for rule to show cause the court being fully advised in the premises,\nIt is hereby ordered:\n1. That the plaintiff has wilfully failed to comply with this court\u2019s order for sanctions of October 17, 1985 by failing to pay to the defendant the sum of $625.00 as sanctions.\n2. The plaintiff\u2019s pleadings are hereby dismissed with prejudice.\n3. There is no just reason for the delay of enforcement of the order.\u201d\nThe record before us does not contain the transcript of any proceedings before the trial court on November 19, 1985, to support the November 19, 1985, order. Moreover, there is nothing in the record before us which contradicts Mueller\u2019s affidavit that he lacked the funds, realty or property to pay the $625 and that therefore his failure to pay was not wilful. In addition to the reasons previously set forth herein why the October 17, 1985, order was erroneous and void, the November 19, 1985, order was likewise void, because it also erroneously recited that the October 17, 1985, order required plaintiff \u201cto pay to defendant the sum of $625.00 as sanctions,\u201d when the order simply provided that, \u201cWilliam Mueller shall pay over to plaintiff\u2019s counsel the following sums\u201d of $125 for court reporter fees and the sum of $500 for attorney fees. Additionally, the order of November 19, 1985, dismissing plaintiff\u2019s pleadings was void because it was predicated upon the erroneous October 17, 1985, order which improperly imposed the sanctions of plaintiff\u2019s payment of attorney and court reporter\u2019s fees.\nIn its determination of whether sanctions should be imposed, the trial court must seek to accomplish discovery rather than inflict punishment. (Bautista v. Verson Allsteel Press Co. (1987), 152 Ill. App. 3d 524, 504 N.E.2d 772; Hengels v. Gilski (1984), 127 Ill. App. 3d 894, 469 N.E.2d 708.) Sanctions for noncompliance with a party\u2019s discovery requests are appropriate when such noncompliance has been \u201cunreasonable.\u201d (Ford v. City of Chicago (1985), 132 Ill. App. 3d 408, 476 N.E.2d 1232.) In determining whether noncompliance with discovery orders or rules is unreasonable, the standard is whether the offending party\u2019s conduct is characterized by a deliberate and pronounced disregard for the discovery rules and for the court. (Bautista v. Verson Allsteel Press Co. (1987), 152 Ill. App. 3d 524; Hengels v. Gilski (1984), 127 Ill. App. 3d 894.) One of the factors to be considered is equal opportunity and access for the opposing party to interview or depose the witness prior to trial. Hengels v. Gilski (1984), 127 Ill. App. 3d 894.\nWhile violations of discovery rules are certainly not to be condoned, plaintiff appeared for his deposition as ordered by the trial court and plaintiff\u2019s conduct certainly cannot be characterized as a deliberate and pronounced disregard for the discovery rules or the court. Plaintiff\u2019s attorney did not appear for plaintiff\u2019s deposition on October 11, 1985, but no evidence was presented that his failure to appear was wilful or a disrespectful disregard of his obligation as an attorney to comply with the court rules or order. If any sanction was to have been imposed for plaintiff\u2019s attorney\u2019s failure to appear, it certainly should not have been imposed against plaintiff. Moreover, Supreme Court Rule 201(d) (107 Ill. 2d R. 201(d)) provides that \u201c[p]rior to the time all defendants have appeared or are required to appear, no deposition or other discovery procedure shall be noticed or otherwise initiated without leave of court granted upon good cause shown.\u201d The instant record reflects that at no time prior to the dates for plaintiff\u2019s deposition were any summons served on the third-party defendants, nor did any of the third-party defendants appear, nor were they required to appear. It is not shown in the record that the defendant was given leave of court to depose plaintiff or to initiate discovery.\nFor the foregoing reasons, the trial court erred in its October 17, 1985, order for plaintiff\u2019s payment of $625 in sanctions. The trial court also erred in dismissing plaintiff\u2019s complaint for failure to pay the $625 in sanctions. We therefore need not decide plaintiff\u2019s contention that because of plaintiff\u2019s impecuniosity and inability to pay the sanctions the trial court lacked authority to dismiss plaintiff\u2019s complaint. The imposition of sanctions should accomplish discovery rather than inflict punishment. (Bautista v. Verson Allsteel Press Co. (1987), 152 Ill. App. 3d 524.) In the case at bar, dismissing plaintiff\u2019s complaint did not accomplish discovery, it merely punished the plaintiff for plaintiff\u2019s attorney\u2019s failure to have appeared at plaintiff\u2019s deposition.\nThe orders imposing sanctions and dismissing plaintiff\u2019s complaint are reversed, and the cause is remanded with directions to reinstate plaintiff\u2019s complaint.\nReversed and remanded with directions.\nSULLIVAN, J., concurs.", "type": "majority", "author": "JUSTICE PINCHAM" }, { "text": "PRESIDING JUSTICE LORENZ,\nspecially concurring:\nA fair reading of the record in this case once again demonstrates to me that far too many members of the bar continue to contribute, through their unrestrained contentious conduct, to the general perception held by the public that the profession is no longer an honorable one. The bar, however, does not alone suffer. No client\u2019s interest is served when counsel, under the guise of representation of that interest, personalize litigation with the sole intent to frustrate and antagonize their adversary at every opportunity. The facts of the matter before us, unfortunately for the respective litigants, are illustrative as such behavior has here caused unnecessary delay and further expense in the disposition of the action.", "type": "concurrence", "author": "PRESIDING JUSTICE LORENZ," } ], "attorneys": [ "Harvey Melinger, of Chicago, for appellant.", "Robert W. Smith and William D. O\u2019Donaghue, both of Robert W. Smith & Associates, of Hillside, for appellee." ], "corrections": "", "head_matter": "WILLIAM MUELLER, d/b/a Wil-Kare Typographers, Plaintiff-Appellant, v. INSURANCE BENEFIT ADMINISTRATORS, INC., Defendant-Appellee.\nFirst District (5th Division)\nNo. 85\u20143418\nOpinion filed October 7, 1988.\nLORENZ, P.J., specially concurring.\nHarvey Melinger, of Chicago, for appellant.\nRobert W. Smith and William D. O\u2019Donaghue, both of Robert W. Smith & Associates, of Hillside, for appellee." }, "file_name": "0587-01", "first_page_order": 609, "last_page_order": 621 }