{ "id": 2510799, "name": "LLOYD WYRICK, Plaintiff-Appellant, v. TIME CHEMICAL, INC., et al., Defendants-Appellees", "name_abbreviation": "Wyrick v. Time Chemical, Inc.", "decision_date": "1989-12-05", "docket_number": "No. 1\u201488\u20140665", "first_page": "1041", "last_page": "1046", "citations": [ { "type": "official", "cite": "191 Ill. App. 3d 1041" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "356 N.E.2d 1160", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "43 Ill. App. 3d 101", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2724310 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/43/0101-01" ] }, { "cite": "436 N.E.2d 1068", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "107 Ill. App. 3d 21", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3019844 ], "pin_cites": [ { "page": "27" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/107/0021-01" ] }, { "cite": "277 N.E.2d 529", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "3 Ill. App. 3d 596", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2842756 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/3/0596-01" ] }, { "cite": "330 N.E.2d 878", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "29 Ill. App. 3d 407", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2498649 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/ill-app-3d/29/0407-01" ] }, { "cite": "357 N.E.2d 195", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "43 Ill. App. 3d 759", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2723326 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/ill-app-3d/43/0759-01" ] }, { "cite": "369 N.E.2d 267", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "54 Ill. App. 3d 1", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3405245 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/ill-app-3d/54/0001-01" ] }, { "cite": "71 Ill. 2d 601", "category": "reporters:state", "reporter": "Ill. 2d", "year": 1977, "opinion_index": 0 }, { "cite": "370 N.E.2d 119", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1978, "opinion_index": 0 }, { "cite": "54 Ill. App. 3d 974", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3402117 ], "weight": 3, "year": 1978, "pin_cites": [ { "page": "978" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/54/0974-01" ] }, { "cite": "398 N.E.2d 24", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1977, "opinion_index": 0 }, { "cite": "78 Ill. App. 3d 1025", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5603681 ], "weight": 6, "year": 1977, "pin_cites": [ { "page": "1028" }, { "page": "1028" }, { "page": "1028" }, { "page": "1030" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/78/1025-01" ] }, { "cite": "455 N.E.2d 876", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "118 Ill. App. 3d 1002", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5659750 ], "pin_cites": [ { "page": "1013" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/118/1002-01" ] }, { "cite": "98 Ill. App. 3d 786", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 8499892 ], "pin_cites": [ { "page": "793, 424" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/98/0786-01" ] } ], "analysis": { "cardinality": 585, "char_count": 10196, "ocr_confidence": 0.774, "pagerank": { "raw": 6.901085130218684e-08, "percentile": 0.4195476261357322 }, "sha256": "695aa40307db95858b8ae78cc55c6c0948ff9db3013c7ad0586a88d1c4efed0c", "simhash": "1:dbf8f55a2f0ea064", "word_count": 1672 }, "last_updated": "2023-07-14T16:26:25.592248+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "LLOYD WYRICK, Plaintiff-Appellant, v. TIME CHEMICAL, INC., et al., Defendants-Appellees." ], "opinions": [ { "text": "PRESIDING JUSTICE BILANDIC\ndelivered the opinion of the court:\nPlaintiff, Lloyd Wyrick, brought this action for personal injuries against defendant, Time Chemical, Inc. (hereinafter defendant Time), and others. On August 20, 1987, pursuant to the motion of defendant Time, plaintiffs cause of action was dismissed \u201cfor his failure to appear for a discovery deposition.\u201d Plaintiff\u2019s motions to vacate and reconsider the dismissal were denied. Plaintiff appeals.\nDefendant Time\u2019s motion to dismiss plaintiff\u2019s cause of action alleged that plaintiff\u2019s deposition was \u201ccontinued on eleven occasions\u201d and that plaintiff \u201cfailed to appear\u201d at a scheduled deposition on April 30, 1987. The motion was not supported by any affidavits.\nOn August 20, 1987, plaintiff\u2019s counsel appeared before Judge Nicholson to oppose defendant Time's motion. He asked the clerk to hold the motion while he attended to another hearing in a different courtroom. Counsel for defendant Time appeared shortly thereafter. The motion was passed and recalled later, prior to the time that counsel for plaintiff returned. Essentially, counsel for Time advised the court of the contents of his motion that \u201c[t]he deposition has been set eleven times\u201d and the deposition was set for April 30, 1987, and plaintiff \u201cdidn\u2019t show up.\u201d\n\u201cTHE COURT: I\u2019ll grant your motion, counsel.\nMR. REYNOLDS: Thank you.\nTHE COURT: Maybe now we will hear from them.\nMR. REYNOLDS: Thank you.\u201d\nThe court then entered the order dismissing plaintiff\u2019s cause of action \u201cfor his failure to appear at a discovery deposition.\u201d\nShortly thereafter, counsel for plaintiff returned and discovered that his case against defendant Time was dismissed. The court asked the clerk whether in fact a hold had been placed on the motion. The clerk replied, \u201c[Y]es, we did. On the third time other counsel stepped up ** and wanted to proceed.\u201d Judge Nicholson understood the problems of busy lawyers, crowded calendars, and the operations of specialized contested motion and pretrial calendars. The court said:\n\u201cI don\u2019t know why they came here with it. Usually if it\u2019s a question, if the question arises someone will come up with an order which says it still says all contested motions would go to the motions Court. In my thinking it\u2019s not a contested motion, but why don\u2019t you \u2014 you could do either one of two things, you could file your motion to vacate or you could simply call the opposing counsel and offer your client within the time between now and the 31st.\nI\u2019m a firm believer that lawyers ought to talk to each other. You could save yourself and your opponent and this Court some time. If you have an order for the, where the time is extended to August 31st, offer to present him prior to that time. That should solve the whole thing.\nMR. KOVAC: Yes, it should, your Honor, but at present there is an existing order which has dismissed plaintiff\u2019s cause of action.\nTHE COURT: Based on that, all right. You offer to present your client, if he agrees come in with an agreed order to vacate this order.\nMR. KOVAC: Okay, your Honor.\nTHE COURT: Is there any reason \u2014 [?]\nMR. KOVAC: I\u2019m not sure that we are going to be able \u2014 .\nTHE COURT: The two of you are reasonable people.\u201d\nFollowing the hearing, plaintiff\u2019s counsel called counsel for defendant Time to schedule the deposition prior to the August 31, 1987, date set in the pretrial order for taking the depositions of \u201call parties.\u201d Counsel for defendant Time and all other counsel for defendants, except counsel for defendant Murphy Carpet, agreed. This refusal precluded the rescheduling of the deposition. Plaintiff then proceeded with his timely motion to vacate the dismissal order.\nCounsel for defendant Murphy Carpet refused to agree to the deposition of plaintiff on the assumption that plaintiff\u2019s cause of action was dismissed as to all of the defendants, including his client.\nI\nThe record reveals that only defendant Time moved to dismiss plaintiff\u2019s cause of action. The August 20, 1987, dismissal order granted the motion of defendant Time. The other defendants did not make similar motions, did not join in defendant Time\u2019s motion, and were not present when defendant Time\u2019s motion was presented and the dismissal order entered. \u201cAn order must be interpreted within the context of the motion or motions which accompany it.\u201d Comet Casualty Co. v. Schneider (1981), 98 Ill. App. 3d 786, 793, 424. N.E.2d 911.\nWe therefore conclude that plaintiff\u2019s cause of action was dismissed only as to defendant Time.\nII\nSupreme Court Rule 219(c) provides in pertinent part:\n\u201cIf a party *** unreasonably refuses to comply with [the provisions of Rules 201 through 218,] or fails to comply with any order entered under these rules, the court, on motion, may enter, in addition to remedies elsewhere specifically provided, such orders as are just, including, among others, the following:\n* * *\n(v) *** that his [suit] be dismissed with or without prejudice; ***.\u201d (107 Ill. 2d R. 219(c).)\nImposition of sanctions under Rule 219 is a matter within the discretion of the trial court; the reviewing court will uphold the decision absent an abuse of discretion. Amoco Oil Co. v. Segall (1983), 118 Ill. App. 3d 1002, 1013, 455 N.E.2d 876.\nDismissal is a drastic sanction which should not be invoked unless a party\u2019s actions demonstrate deliberate, wilful or contumacious disregard of the court\u2019s authority. (White v. Henrotin Hospital Corp. (1979), 78 Ill. App. 3d 1025, 398 N.E.2d 24; Williams v. City of Chicago (1977), 54 Ill. App. 3d 974, 370 N.E.2d 119, appeal denied (1978), 71 Ill. 2d 601; Hansen v. Skul (1977), 54 Ill. App. 3d 1, 369 N.E.2d 267; In re Estate of Fado (1976), 43 Ill. App. 3d 759, 357 N.E.2d 195; Department of Transportation v. Zabel (1975), 29 Ill. App. 3d 407, 330 N.E.2d 878; Schwartz v. Moats (1972), 3 Ill. App. 3d 596, 277 N.E.2d 529.) While a court may impose sanctions necessary to accomplish the object of discovery, it may not impose sanctions intended primarily as punishment. (Gallo v. Henke (1982), 107 Ill. App. 3d 21, 27, 436 N.E.2d 1068; Williams, 54 Ill. App. 3d at 978.) No sanction should be imposed unless the noncompliance is unreasonable, and any order entered as a result thereof must be just. (White, 78 Ill. App. 3d at 1028.) A \u201cjust\u201d order within the meaning of Rule 219 is one which, to the degree possible, ensures both discovery and a trial on the merits. White, 78 Ill. App. 3d at 1028.\nBecause dismissal is such a radical sanction, it should be employed only as a last resort, when all other enforcement powers at the court\u2019s disposal fail to advance the litigation. (White, 78 Ill. App. 3d at 1028; United Excavating & Wrecking, Inc. v. J.L. Wroan & Sons, Inc. (1976), 43 Ill. App. 3d 101, 356 N.E.2d 1160.) Where noncompliance with a discovery order is not \u201ccontumacious,\u201d it is an abuse of discretion to dismiss the complaint and to refuse to vacate the dismissal. White, 78 Ill. App. 3d at 1030.\nIn the case at bar, defendant Time\u2019s motion to dismiss mistakenly alleged that plaintiff\u2019s deposition had \u201cbeen continued eleven times.\u201d However, 10 of the 11 continuances were by agreement of the parties. The court also was not informed of the fact that plaintiff had noticed the depositions of defendants and that those depositions were also continued from time to time by agreement.\nOn August 20, 1987, defendant Time and the other defendants had not been deposed, even though the pretrial deadline for \u201cdepositions of all parties\u201d was August 31, 1987 (11 days later). The court also was not informed that plaintiff complied with all written discovery.\nPlaintiff made an effort to be deposed prior to the August 31, 1987, deadline set in the pretrial order. This effort failed because of the erroneous assumption of defendant Murphy Carpet that plaintiff\u2019s action against it was dismissed.\nThe trial court\u2019s dismissal order is based on the erroneous allegations in defendant Time\u2019s motion and inaccurate representations, unsupported by affidavit or testimony, that plaintiff \u201cdid not show\u201d for a deposition on \u201cat least eleven occasions.\u201d The court\u2019s misapprehension in this regard is confirmed by the court\u2019s own stated findings to the effect that \u201cthere were eleven times or 22 times\u201d that plaintiff \u201cdid not show\u201d for his deposition; that the defendants \u201ccame in and [obtained] many orders\u201d; that plaintiff \u201cdid not obey those orders\u201d; and that \u201csomeone is disobeying orders with reckless abandonment.\u201d\nWhile it is true that a date was set for plaintiff\u2019s deposition, which plaintiff did not attend, there is nothing in the record, nor did defendants ever claim, that his absence on that one occasion was deliberate, wilful or contumacious.\nSince the trial court based its dismissal on the erroneous assumption that plaintiff missed \u201celeven or 22 depositions,\u201d the dismissal should be vacated. As a matter of law, defendants have failed to demonstrate deliberate, wilful and contumacious disregard of the court\u2019s authority sufficient to justify a dismissal. See White, 78 Ill. App. 3d 1025, 398 N.E.2d 24; Williams, 54 Ill. App. 3d 974, 370 N.E.2d 119.\nAccordingly, the judgment of the circuit court of Cook County dismissing plaintiff\u2019s cause of action against defendant Time is reversed and this case is remanded for further proceedings consistent with the views expressed herein.\nReversed and remanded.\nHARTMAN and SCARIANO, JJ., concur.", "type": "majority", "author": "PRESIDING JUSTICE BILANDIC" } ], "attorneys": [ "Andrew J. Horwitz, Marc A. Perper, and John M. Kovac, all of Horwitz, Horwitz & Associates, Ltd., of Chicago, for appellant.", "Patrick J. Reynolds and Gregory G. Lawton, both of Modesto, Reynolds & McDermott, of Chicago, for appellee Time Chemical, Inc.", "John M. Barnes, of Law Offices of John M. Barnes, of Chicago, for appellee Murphy Carpet Supplies, Inc.", "Barry G. Collins, of Tuttle, Vedral & Collins, of Des Plaines, and Arthur S. Bresnahan and Douglas A. Miller, both of Bresnahan & Garvey, and Richard C. Robin and Edward A. Cohen, both of Vedder, Price, Kaufman & Kammholz, both of Chicago, for other appellees." ], "corrections": "", "head_matter": "LLOYD WYRICK, Plaintiff-Appellant, v. TIME CHEMICAL, INC., et al., Defendants-Appellees.\nFirst District (2nd Division)\nNo. 1\u201488\u20140665\nOpinion filed December 5, 1989.\nRehearing denied January 9, 1990.\nAndrew J. Horwitz, Marc A. Perper, and John M. Kovac, all of Horwitz, Horwitz & Associates, Ltd., of Chicago, for appellant.\nPatrick J. Reynolds and Gregory G. Lawton, both of Modesto, Reynolds & McDermott, of Chicago, for appellee Time Chemical, Inc.\nJohn M. Barnes, of Law Offices of John M. Barnes, of Chicago, for appellee Murphy Carpet Supplies, Inc.\nBarry G. Collins, of Tuttle, Vedral & Collins, of Des Plaines, and Arthur S. Bresnahan and Douglas A. Miller, both of Bresnahan & Garvey, and Richard C. Robin and Edward A. Cohen, both of Vedder, Price, Kaufman & Kammholz, both of Chicago, for other appellees." }, "file_name": "1041-01", "first_page_order": 1063, "last_page_order": 1068 }