{ "id": 5798464, "name": "FRANK DYDUCH, Plaintiff-Appellant, v. CRYSTAL GREEN CORPORATION, Defendant-Appellee", "name_abbreviation": "Dyduch v. Crystal Green Corp.", "decision_date": "1991-11-22", "docket_number": "No. 2\u201491\u20140118", "first_page": "474", "last_page": "481", "citations": [ { "type": "official", "cite": "221 Ill. App. 3d 474" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "164 Ill. App. 3d 945", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3582295 ], "weight": 2, "pin_cites": [ { "page": "951" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/164/0945-01" ] }, { "cite": "143 Ill. App. 3d 791", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5666347 ], "pin_cites": [ { "page": "803" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/143/0791-01" ] }, { "cite": "205 Ill. App. 3d 976", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2566495 ], "year": 1986, "pin_cites": [ { "page": "983" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/205/0976-01" ] }, { "cite": "37 Ill. 2d 180", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2864902 ], "pin_cites": [ { "page": "196" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/37/0180-01" ] }, { "cite": "178 Ill. App. 3d 191", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2433590 ], "pin_cites": [ { "page": "196" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/178/0191-01" ] }, { "cite": "140 Ill. App. 3d 127", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3531575 ], "pin_cites": [ { "page": "134" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/140/0127-01" ] }, { "cite": "204 Ill. App. 3d 179", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2577553 ], "pin_cites": [ { "page": "186" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/204/0179-01" ] }, { "cite": "189 Ill. App. 3d 163", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2678120 ], "pin_cites": [ { "page": "169" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/189/0163-01" ] }, { "cite": "159 Ill. App. 3d 237", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3612843 ], "year": 1989, "pin_cites": [ { "page": "246" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/159/0237-01" ] }, { "cite": "81 Ill. 2d 151", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5480949 ], "weight": 3, "pin_cites": [ { "page": "154-55" }, { "page": "154-55" }, { "page": "155" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/81/0151-01" ] } ], "analysis": { "cardinality": 795, "char_count": 18688, "ocr_confidence": 0.764, "pagerank": { "raw": 1.4214749190386189e-07, "percentile": 0.6490917038020363 }, "sha256": "5746d4106de0d0710841df204fb31bef715add2e8955802f20dde240d21eef6f", "simhash": "1:39a2f03a12db1d79", "word_count": 2975 }, "last_updated": "2023-07-14T20:24:34.404944+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "FRANK DYDUCH, Plaintiff-Appellant, v. CRYSTAL GREEN CORPORATION, Defendant-Appellee." ], "opinions": [ { "text": "JUSTICE NICKELS\ndelivered the opinion of the court:\nPlaintiff, Frank Dyduch, appeals the directed findings entered in favor of defendant, Crystal Green Corporation, on both counts of plaintiff\u2019s complaint for negligence and breach of contract and from an order requiring plaintiff to pay defendant\u2019s costs and attorney fees as a sanction for a discovery violation. Plaintiff contends that the directed findings were against the manifest weight of the evidence and the award of costs and fees was an abuse of discretion.\nDefendant is a lawn-care business, and, in 1981, plaintiff hired defendant to provide certain lawn-care services at plaintiff\u2019s home in Algonquin. In his complaint, plaintiff alleged that he had retained defendant to \u201cexamine, diagnose, treat, fertilize, and provide insect and weed control as recommended by [defendant for [plaintiffs lawn\u201d and that defendant had appeared periodically each year to do so. In 1988 and 1989, plaintiff\u2019s lawn was allegedly damaged by chinch bugs, sod worms and grubs. In count I, plaintiff alleged that defendant had a duty to inspect properly, diagnose and treat the lawn and that, in disregard of that duty, defendant negligently failed to conduct regular and thorough inspections, diagnose and treat insect infestations and apply insecticides as necessary. In count II, plaintiff alleged that defendant had breached its agreement to provide proper lawn maintenance.\nThere is no verbatim transcript of the trial, and the evidence is presented on appeal by means of a certified bystander\u2019s report. Plaintiff testified at trial that in May 1981 defendant, through a representative, inspected and analyzed plaintiff\u2019s lawn and quoted a price for service. At that initial inspection, defendant noted possible fusarium blight and sod webworm in the lawn. Plaintiff and defendant orally agreed that defendant would apply fertilizer and weed control four times per year, which occurred and for which service defendant paid until 1989. However, plaintiff declined disease and insect-control treatments available at an additional cost, with the exception of a single application of fungicide to treat the fusarium blight in June 1981. In 1982 and 1983, at plaintiff\u2019s request, defendant applied additional weed-control treatment at no charge. Plaintiff testified that he \u201cbelieved\u201d that defendant was to maintain the lawn in an excellent condition.\nIn the summer of 1988, the City of Algonquin instituted a partial ban on lawn watering, and such watering was restricted to four hours per day on each of three designated days per week. Plaintiff observed that part of his lawn had become white and brown. He pointed this out to defendant during the late summer application of fertilizer and weed-control treatment. Defendant\u2019s representative responded that many lawns were similarly affected due to the severe drought.\nIn May 1989, plaintiff again pointed out the condition of the lawn during the application of fertilizer and weed-control treatment. Defendant\u2019s president, John Eckhardt, came out and inspected the lawn and opined that drought and fusarium blight had probably caused the damage. However, plaintiff had done some dethatching, laid new topsoil and reseeded part of the lawn prior to such inspection. In June, Steve Eckhardt again inspected plaintiff\u2019s lawn, in response to plaintiff\u2019s threat to cancel the service if defendant did not correct the problem, and again told plaintiff the problem was drought and fusarium blight. Plaintiff cancelled defendant\u2019s service and contacted Paul Dones of Chemlawn, who in June 1989 did an analysis of the lawn and advised plaintiff that the lawn had been damaged by chinch bugs the previous year. The cost to repair the damage to plaintiff\u2019s lawn was estimated to be $2,646, which included new topsoil, reseeding and resodding.\nChinch bugs are very difficult to identify, but Dones\u2019 opinion was based on the pattern of damage and discoloration. However, he did not see any chinch bugs when he examined the lawn because chinch bugs are destroyed by heavy watering, and the area had experienced heavy rainfall in the spring of 1989.\nLawn service representatives, who apply fertilizer and other treatments, are required to take certain courses, pass a test, and be certified by the State, and such training should enable a certified applicator to recognize lawn problems. However, because applicators only see a customer\u2019s lawn four times a year, the customer\u2019s prompt notification of any problems or changes in his lawn is essential.\nDefendant moved for directed findings as to both counts of plaintiff\u2019s claim at the close of plaintiff\u2019s case. Because the agreement between the parties was only for the application of fertilizer and weed-control and insect-control services were never requested by plaintiff, defendant asserted that plaintiff\u2019s contract claim failed. Plaintiff similarly failed to establish negligence because defendant owed no duty to plaintiff, which duty was defined by the contract, and, therefore, plaintiff\u2019s negligence claim failed. Plaintiff, on the other hand, argued that defendant had agreed to maintain, protect, and preserve plaintiff\u2019s lawn and such agreement included identifying any insect problems. Plaintiff relied on defendant to keep him informed of problems with the lawn, and defendant breached its duty to detect insect damage, which breach proximately caused the damage to plaintiff\u2019s lawn.\nThe trial court found that the only agreement that plaintiff had established was for fertilizer and weed-control services and not for insect control. Defendant did not have a duty to inspect the lawn for insect damage. The court granted the motion for directed findings as to both counts of the complaint. Plaintiff\u2019s subsequent motion to reconsider was denied, and plaintiff filed his notice of appeal. Plaintiff contends that the court erred in entering directed findings because he presented a prima facie case for breach of contract and for negligence. We disagree.\nPursuant to section 2 \u2014 1110 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 \u2014 1110) in all cases tried without a jury, a defendant may, at the close of plaintiff\u2019s case, move for a directed finding or judgment in its favor. In ruling on a motion for a directed finding, the court must apply a two-part analysis, first determining as a matter of law whether a plaintiff has presented a prima facie case and entering judgment for the defendant if a plaintiff has failed to so do. (Ill. Rev. Stat. 1989, ch. 110, par. 2 \u2014 1110; Kokinis v. Kotrich (1980), 81 Ill. 2d 151, 154-55.) However, if a plaintiff has presented a prima facie case, the court must weigh the evidence, including any favorable to the defendant, pass on the credibility of the witnesses, draw reasonable inferences and generally consider the weight and quality of the evidence. (Ill. Rev. Stat. 1989, ch. 110, par. 2\u2014 1110; (Kokinis, 81 Ill. 2d at 154-55.) This weighing process may result in the negation of some of the plaintiff\u2019s evidence, but if sufficient evidence remains to establish the plaintiff\u2019s prima facie case, the court must deny the motion and proceed with the trial. (Kokinis, 81 Ill. 2d at 155; Buechin v. Ogden Chrysler-Plymouth, Inc. (1987), 159 Ill. App. 3d 237, 246.) The decision of the trial court to grant a defendant\u2019s motion for a directed finding will not be reversed on review unless it is against the manifest weight of the evidence. Coryell v. Lombard Lincoln-Mercury Merkur, Inc. (1989), 189 Ill. App. 3d 163, 169.\nIn order to meet his burden of proof on the breach of contract count, plaintiff was required to establish offer, acceptance, consideration, the definite and certain terms of the contract, plaintiff\u2019s performance, defendant\u2019s breach of the terms of the contract, and damage resulting from that breach. (See Mannion v. Stallings & Co. (1990), 204 Ill. App. 3d 179, 186.) As to the terms of the contract, on appeal plaintiff argues that he and defendant had contracted \u201cfor Defendant to maintain and preserve Plaintiffs healthy lawn,\u201d and this would include regular inspections, diagnosis, and treatment of problems that arose in the lawn. Plaintiff contends that he knew that insect control and other services were available from defendant \u201cand that they would be provided if necessary for the health and well-being of his lawn.\u201d Plaintiff\u2019s contentions, however, are not supported by the record.\nAccording to the bystander\u2019s report, plaintiff testified that in 1981 he and defendant orally agreed \u201cto begin a lawn program consisting of four applications of fertilizer and weed and feed per year.\u201d However, plaintiff \u201cdeclined application of disease control and insect control which were available for additional fees.\u201d Finally, although plaintiff \u201cbelieved that [defendant] was to maintain his lawn in excellent condition,\u201d plaintiff \u201cnever entered into a written agreement with [defendant] to provide insect control.\u201d\nWe agree with the trial court that plaintiff\u2019s evidence established an agreement for fertilization and weed control only. Although plaintiff may have \u201cbelieved\u201d it to be the case, he did not present any evidence that defendant agreed to maintain the lawn in any condition, to inspect the lawn, to diagnose problems in the lawn, or to recommend or provide additional services if necessary. Rather, plaintiff initiated additional services when necessary, although only to control weeds. Plaintiff\u2019s own expert testified that the customer normally was responsible to notify a lawn-care provider of any changes in a serviced lawn. Although the evidence indicated that the damage to the lawn was caused by bugs and/or drought, there was no evidence of improper fertilization or weed control, which was the extent of defendant\u2019s contractual obligations to plaintiff.\nPlaintiff\u2019s reliance in part on defendant\u2019s 1990 brochure wherein defendant made certain representations concerning the quality of its service and employees does not alter this result. The brochure refers to lawn care \u201cfor the 90\u2019s\u201d and bears the handwritten date \u201c3-24-90.\u201d Representations made in 1990 are not relevant to the terms of an agreement entered into in 1981 and terminated in 1989.\nPlaintiff also contends that the trial court erred in entering a directed finding on the negligence count. We again disagree. Where a defendant is charged with negligence because of his failure to perform an act allegedly required by a contract, the question of whether the defendant actually had a duty to perform the act usually must be determined from the terms of the contract, and the defendant\u2019s duty will not be extended beyond the duties described in the contract. (Perkaus v. Chicago Catholic High School Athletic League (1986), 140 Ill. App. 3d 127, 134.) As set forth above, there was no evidence that the parties\u2019 agreement imposed a duty on defendant to provide insect control, to inspect and treat the lawn for this type problem, or generally to maintain the lawn in a healthy condition. Under the circumstances, since defendant had no contractual duty to perform these acts, it cannot be held liable in tort for damage resulting from its failure to perform them. We conclude that the trial court did not err in entering directed findings on both counts of the complaint.\nFinally, plaintiff contends that the court erred in granting defendant\u2019s motion for costs and attorney fees as a sanction for a discovery violation. After the court granted the motion for directed findings, defendant made an oral motion for sanctions. Defendant alleged that plaintiff had willfully withheld the name of a witness, Bruce Spangenberg, who had inspected plaintiff\u2019s lawn. Unaware of that fact, defendant retained Mr. Spangenberg as its own expert witness shortly before trial. Prior to trial, defense counsel had only presented Spangenberg with a hypothetical set of facts, and Spangenberg was not aware of plaintiff\u2019s identity. However, when Spangenberg appeared in court on the first day of trial and became aware of plaintiff\u2019s identity, Spangenberg recalled that he had personally examined plaintiff\u2019s lawn in June 1989 and that he had written to plaintiff regarding the examination. In his report, Spangenberg said that the lawn problem was \u201cdrought injury, possibly combined with insect damage,\u201d and the insects mentioned were chinch bugs and sod webworms. Spangenberg informed defense counsel of these facts, and defendant sought sanctions against plaintiff for failure to disclose either Spangenberg\u2019s identity or report, despite specific discovery requests, to which plaintiff responded without objection.\nDefendant had requested production of \u201c[a]ll contracts, proposals, invoices, repair bills, or any other indicia of inspection, repair, or other work performed *** on the lawn,\u201d to which plaintiff had failed to produce Spangenberg\u2019s report. Another production request sought \u201c[a] list giving the names, addresses and specialties of all expert witnesses,\u201d in response to which plaintiff had also omitted Spangenberg\u2019s name. Plaintiff had similarly failed to disclose Spangenberg\u2019s identity or report in response to interrogatories seeking \u201cthe name and address of [anyone] who repaired or estimated the damage\u201d to plaintiff\u2019s lawn, and \u201cstatements of any witness, *** the name and address of each such witness, the date of statement and *** whether such statement was written or oral.\u201d\nPlaintiff\u2019s counsel argued that the failure to disclose was inadvertent and not prejudicial. However, plaintiff told the court that he \u201cwas aware of Spangenberg\u2019s report but did not want to produce it.\u201d The trial court found that plaintiff had willfully withheld Spangenberg\u2019s name and report, and it granted the motion for sanctions. The court awarded defendant all of its costs in the litigation and one-half of its attorney fees for a total of $5,036.81. On appeal, plaintiff contends that the award of all of defendant\u2019s costs and one-half of its attorney fees was an abuse of the trial court\u2019s discretion because the costs and fees were not incurred by defendant as a result of the misconduct, and because defendant was not prejudiced by the failure to disclose Spangenberg.\nPursuant to Supreme Court Rule 219(c) (134 Ill. 2d R. 219(c)), if a party unreasonably refuses to comply with the rules of discovery, the court, on motion, may order sanctions against the offending party, and the sanctions may include the payment of \u201cthe reasonable expenses, including attorney\u2019s fees incurred by any party as a result of the misconduct\u201d (emphasis added) (134 Ill. 2d R. 219(c)). The imposition of sanctions is a matter largely within the discretion of the trial court and should not be disturbed on review unless the order constitutes an abuse of discretion. Kubian v. Labinsky (1988), 178 Ill. App. 3d 191, 196.\nAlthough the trial court is not limited to the sanctions enumerated in Rule 219 for discovery violations and may enter \u201csuch orders as are just,\u201d our courts have repeatedly stated that the purpose of sanctions for discovery violations is to accomplish discovery rather than to inflict punishment. (People ex rel. General Motors Corp. v. Bua (1967), 37 Ill. 2d 180, 196 (discussing Rule 19 \u2014 12(3) of the Civil Practice Act, the predecessor to Rule 219(c)); Nunez v. Horwitz (1990), 205 Ill. App. 3d 976, 983; Nehring v. First National Bank (1986), 143 Ill. App. 3d 791, 803.) The language of the rule is specific and very clear that an award of expenses as a Rule 219(c) sanction must be related to and the result of the specific misconduct. For example, the offending party may be debarred from filing any pleading \u201crelating to any issue to which the [misconduct] relates\u201d (134 Ill. 2d R. 219(c)(ii)), or debarred from maintaining any claim or defense \u201crelating to that issue\u201d (134 Ill. 2d R. 219(c)(iii)), or a witness may be barred from testifying \u201cconcerning that issue\u201d (134 Ill. 2d R. 219(c)(iv)). In that section of the rule relating to the payment of expenses, the rule specifically refers to those expenses incurred \u201cas a result of the misconduct.\u201d 134 Ill. 2d R. 219(c).\nIn this case, the misconduct, which plaintiff does not deny, was the failure to reveal the name and report of Bruce Spangenberg in plaintiff\u2019s answers to defendant\u2019s interrogatories. We fail to see how the costs and fees awarded relate to the misconduct that occurred. We conclude that the trial court imposed this sanction strictly as a punishment for the discovery violation and that this was an abuse of discretion. Thus, the award of defendant\u2019s costs and attorney fees is vacated, and the cause is remanded to determine what costs and fees, if any, were directly related to and incurred as a direct result of plaintiff\u2019s misconduct.\nIn determining that it was an abuse of discretion to impose a monetary penalty in excess of the expenses incurred as a result of the discovery misconduct, we have declined to follow the reasoning of the Appellate Court, First District, in Transamerica Insurance Group v. Lee (1987), 164 Ill. App. 3d 945, relied on by defendant. In Transamerica, the defendant filed false answers to interrogatories, and, as a result of the false answers, plaintiff incurred $2,500 in attorney fees. As a sanction for the discovery misconduct, however, the trial court awarded plaintiff $5,000, twice the amount claimed. The Appellate Court, First District, affirmed the trial court\u2019s reasoning that such a penalty was appropriate because \u201c[i]f the only sanction imposed upon discovery of the violation is the payment of attorney fees and costs, [false answers] may prove a cost-effective measure to be tried in future cases.\u201d In a vigorous dissent, Justice McMorrow argued that Rule 219(c) did not authorize such punitive sanctions. (164 Ill. App. 3d at 951.) We agree with Justice McMorrow and her conclusion that monetary sanctions pursuant to Rule 219(c) are limited to the reasonable expenses incurred by the innocent party as a result of the misconduct.\nThe directed findings entered in favor of defendant are affirmed, the award of costs and attorney fees is vacated, and the cause is remanded for further proceedings consistent with this opinion.\nAffirmed in part; vacated in part and remanded.\nUNVERZAGT and McLAREN, JJ., concur.", "type": "majority", "author": "JUSTICE NICKELS" } ], "attorneys": [ "Brett E. Anderson, of Ariano, Anderson, Hardy & Castillo, P.C., of Elgin, for appellant.", "Jay Orlowski, of McKenna, Storer, Rowe, White & Farrug, of Waukegan, and Christine L. Olson and James P. DeNardo, both of McKenna, Storer, Rowe, White & Farrug, of Chicago, for appellee." ], "corrections": "", "head_matter": "FRANK DYDUCH, Plaintiff-Appellant, v. CRYSTAL GREEN CORPORATION, Defendant-Appellee.\nSecond District\nNo. 2 \u2014 91\u20140118\nOpinion filed November 22, 1991.\nBrett E. Anderson, of Ariano, Anderson, Hardy & Castillo, P.C., of Elgin, for appellant.\nJay Orlowski, of McKenna, Storer, Rowe, White & Farrug, of Waukegan, and Christine L. Olson and James P. DeNardo, both of McKenna, Storer, Rowe, White & Farrug, of Chicago, for appellee." }, "file_name": "0474-01", "first_page_order": 496, "last_page_order": 503 }