{ "id": 2434566, "name": "PATRICIA HARTNETT, Plaintiff-Appellee, v. JAMES STACK, Defendant-Appellant (Robert E. Cleveland, Appellant)", "name_abbreviation": "Hartnett v. Stack", "decision_date": "1993-02-02", "docket_number": "No. 2\u201492\u20140208", "first_page": "157", "last_page": "177", "citations": [ { "type": "official", "cite": "241 Ill. App. 3d 157" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "196 Ill. App. 3d 815", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2491826 ], "pin_cites": [ { "page": "823" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/196/0815-01" ] }, { "cite": "216 Ill. App. 3d 360", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5287349 ], "pin_cites": [ { "page": "373-74" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/216/0360-01" ] }, { "cite": "153 Ill. App. 3d 317", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3609318 ], "weight": 2, "pin_cites": [ { "page": "325" }, { "page": "323" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/153/0317-01" ] }, { "cite": "223 Ill. App. 3d 624", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5255766 ], "pin_cites": [ { "page": "627" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/223/0624-01" ] }, { "cite": "193 Ill. App. 3d 968", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2499920 ], "weight": 2, "pin_cites": [ { "page": "974" }, { "page": "975" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/193/0968-01" ] }, { "cite": "178 Ill. App. 3d 191", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2433590 ], "weight": 3, "pin_cites": [ { "page": "196" }, { "page": "196" }, { "page": "197" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/178/0191-01" ] }, { "cite": "37 Ill. 2d 473", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2866031 ], "pin_cites": [ { "page": "475" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/37/0473-01" ] }, { "cite": "222 Ill. App. 3d 566", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5263527 ], "year": 1967, "pin_cites": [ { "page": "569" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/222/0566-01" ] }, { "cite": "200 Ill. App. 3d 601", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2462467 ], "pin_cites": [ { "page": "604" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/200/0601-01" ] }, { "cite": "166 Ill. App. 3d 253", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5073546 ], "pin_cites": [ { "page": "259" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/166/0253-01" ] }, { "cite": "120 Ill. App. 3d 435", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3593867 ], "pin_cites": [ { "page": "440" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/120/0435-01" ] }, { "cite": "30 Ill. 2d 194", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2827480 ], "pin_cites": [ { "page": "198" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/30/0194-01" ] }, { "cite": "225 Ill. App. 3d 930", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5245030 ], "pin_cites": [ { "page": "936" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/225/0930-01" ] }, { "cite": "24 Ill. 2d 148", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2800717 ], "pin_cites": [ { "page": "150" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/24/0148-01" ] }, { "cite": "145 Ill. 2d 311", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5595837 ], "pin_cites": [ { "page": "319" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/145/0311-01" ] }, { "cite": "101 Ill. 2d 526", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3160632 ], "year": 1991, "pin_cites": [ { "page": "530" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/101/0526-01" ] }, { "cite": "63 Ill. 2d 128", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5426498 ], "weight": 2, "pin_cites": [ { "page": "130" }, { "page": "133" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/63/0128-01" ] }, { "cite": "197 Ill. App. 3d 785", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2482764 ], "pin_cites": [ { "page": "788" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/197/0785-01" ] } ], "analysis": { "cardinality": 1254, "char_count": 45805, "ocr_confidence": 0.766, "pagerank": { "raw": 4.4103486609142556e-07, "percentile": 0.9201860803467693 }, "sha256": "5f7f28edb0ea30dd0b0abc6e9e26581031ac99225f02e05027bb35d4712e3c97", "simhash": "1:a57bd5ee84081ec7", "word_count": 7293 }, "last_updated": "2023-07-14T17:49:44.998173+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "PATRICIA HARTNETT, Plaintiff-Appellee, v. JAMES STACK, Defendant-Appellant (Robert E. Cleveland, Appellant)." ], "opinions": [ { "text": "JUSTICE UNVERZAGT\ndelivered the opinion of the court:\nDefendant, James Stack, appeals from a Du Page County circuit court order striking defendant\u2019s answer and affirmative defense and entering judgment against defendant and in favor of plaintiff, Patricia Hartnett. Defendant and defendant\u2019s attorney, Robert E. Cleveland, also appeal from the circuit court\u2019s entry of a judgment against them jointly and severally for plaintiff\u2019s attorney fees and costs relating to discovery. The appeal presents us with four issues: (1) whether the trial court erred when it denied defendant\u2019s petition for a change of venue; (2) whether the circuit court\u2019s presiding judge of the law division erred when he assigned defendant\u2019s case for a hearing on defendant\u2019s motion for change of venue for cause; (3) whether the circuit court erred when it denied defendant\u2019s motion for change of venue for cause; and (4) whether the trial court erred when it imposed sanctions and entered judgments based on the sanctions against defendant and defendant\u2019s attorney for discovery violations.\nAfter filing the appeal, defendant\u2019s attorney, Robert E. Cleveland, received a copy of a letter from plaintiff dated June 26, 1992. The letter indicated that plaintiff would not file an appeal brief. Based on the letter, on July 13, 1992, attorney Cleveland filed a motion with this court for sanctions and other relief. The court ordered the motion to be taken with the case. We turn first to this preliminary question.\nIn their motion, defendant and his attorney, Cleveland, charge that plaintiff and her attorneys violated Supreme Court Rule 375 (134 Ill. 2d R. 375) and should therefore be sanctioned. Defendant and attorney Cleveland contend that plaintiff\u2019s June 26, 1992, letter indicating that plaintiff would not file a brief shows that plaintiff \u201cand her attorneys have further aided and abetted their game plan to embarrass, harass and wrongfully collect money from appellants herein *** wherein they state that they are not going to file a Breief [sic] herein.\u201d The motion asserts that plaintiff\u2019s filing of an appearance for the appeal without also filing a brief and \u201ctheir actions in this cause are clearly frivolous and sanctionable.\u201d In an attached affidavit, Cleveland, as defendant\u2019s attorney and as attorney pro se, argues that plaintiff\u2019s failure to file a brief in the appeal shows that plaintiff never intended to resist the appeal but filed an appearance only to delay reversal of the trial court judgment. The affidavit concludes that plaintiff\u2019s action in not filing an appeal brief warrants sanctions under Rule 375.\nSupreme Court Rule 375 provides, in relevant part:\n\u201cIf, after consideration of an appeal, it is determined that the appeal itself is frivolous, or that an appeal was not taken in good faith, for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation, or the manner of prosecuting the appeal is for such purpose, an appropriate sanction may be imposed upon any party or the attorney or attorneys of the party or parties. An appeal will be deemed frivolous where it is not reasonably well grounded in fact and not warranted by existing law or a good-faith argument for the extension, modification, or reversal of existing law. An appeal will be deemed to have been taken or prosecuted for an improper purpose where the primary purpose of the appeal is to delay, harass, or cause needless expense.\u201d 134 Ill. 2d R. 375(b).\nIt is clear from the plain language of Rule 375 that the rule applies to frivolous appeals or appeals deemed to have been taken or prosecuted in bad faith or for an improper purpose. The primary thrust of Rule 375, then, is aimed at appellants who file a frivolous appeal, file an appeal in bad faith, or file an appeal for an improper purpose. (See Kennedy v. Miller (1990), 197 Ill. App. 3d 785, 788.) The question before us is whether an appellee\u2019s failure to file an appeal brief can constitute a violation of Rule 375 and subject such an appellee to sanctions under Rule 375.\nOur supreme court indirectly answered this question when it stated that the only provision in the supreme court rules imposing a sanction for failure to file an appeal brief limits the sanction to prohibiting the nonfiling party from presenting an oral argument. First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128,130.\nHere, defendant charges that plaintiff-appellee\u2019s failure to file a brief is sufficient reason to impose sanctions under Rule 375. We disagree. Based on the plain language of the rule and our supreme court\u2019s decision limiting sanctions for not filing briefs, we conclude that Rule 375 sanctions are not warranted where an appellee merely does not file a brief. Accordingly, the motion by defendant and attorney Cleveland for sanctions and other relief is denied.\nThe record on appeal discloses the following. On April 29, 1991, plaintiff brought an action in Du Page County circuit court against defendant to recover the principal and interest accrued on two allegedly overdue promissory notes signed by defendant with plaintiff as payee. Each note was for a period of one year. The first note was dated March 24, 1987, and was in the amount of $15,000 with interest at 10% per annum after that date until paid. The second note was dated April 19, 1989, in the amount of $5,000 with interest at 10% per annum after that date until paid. Plaintiff\u2019s complaint claimed the total amount owed by defendant on the notes through May 1, 1991, was $26,393.49. The complaint claimed that defendant owed plaintiff $20,000 total principal plus $6,393.49 total interest on the notes. The complaint also sought $5.48-per-day additional interest after May 1, 1991.\nOn May 16, 1991, a process server in New York personally served defendant with a summons and a copy of the complaint. The service was performed at the address in Oneida, New York, where defendant was believed to reside.\nOn June 25, 1991, defendant filed a motion to strike the complaint on the ground that the complaint showed a discrepancy of almost $3,000 in favor of plaintiff between the amount defendant allegedly owed as of February 25, 1991, and as of April 29, 1991. Defendant\u2019s motion noted that plaintiff\u2019s February 25, 1991, written demand to defendant for payment of the notes calculated that the total amount due as of February 22, 1991, was $23,896.86, nearly $3,000 less than the total amount claimed due in the complaint as of May 1, 1991.\nOn July 8, 1991, the court held a hearing on plaintiff\u2019s motion for default and defendant\u2019s motion to strike the complaint. The court agreed with defendant in terms of the discrepancy and ordered plaintiff\u2019s complaint amended to reflect the amount shown in the written demand for a total of $23,896.86, plus $5.48 per day in interest after February 22, 1991. The court also ordered defendant to answer or otherwise respond to the amended complaint on or before July 29, 1991, and set a status date of October 7,1991.\nOn August 2, 1991, defendant filed a motion to extend time to respond. The motion indicated that defendant\u2019s attorney attempted to contact defendant to prepare a response, but that defendant\u2019s wife had informed defendant\u2019s attorney that on the advice of defendant\u2019s doctor defendant could not talk on the phone because defendant was terminally ill. The motion also indicated that defendant\u2019s attorney would be unavailable from August 4, 1991, through August 22, 1991, because he would be out of town.\nOn August 13, 1991, plaintiff filed a motion for default. The motion for default alleged that defendant failed to answer or otherwise respond to the complaint within the time permitted by law. On the same date, plaintiff filed a request for production of documents. The request asked for production by defendant of all documents relating to the promissory notes, copies of checks or other records of any payments by or for defendant on the notes, and relevant correspondence between plaintiff and defendant.\nOn September 3, 1991, the court entered an order continuing plaintiff\u2019s motion for default. The order also required defendant to file responsive pleadings by September 17, 1991, and let the previously set status date of October 7,1991, stand.\nOn September 27, 1991, defendant filed a purported answer to plaintiff\u2019s complaint. The answer noted that defendant \u201cis terminally ill, as evidenced by the attached letter from Dr. Robert W. Burdick,\u201d and that the answer was therefore based on the belief and information of defendant\u2019s attorney. The answer denied that defendant failed to make payments required by the notes and denied the paragraph in the complaint showing the amount in question. Attached to defendant\u2019s answer was a document labeled \u201caffirmative defense\u201d which claimed that defendant had quadruple bypass surgery and a lung removed in December 1989; that just before the surgery defendant sold the business to two named persons who agreed to assume all of defendant\u2019s liabilities, including the notes; that those persons now had defendant\u2019s business records including all documents relating to the notes; and that defendant recalls having made a substantial, perhaps complete, payment on the notes, but cannot recollect dates or amounts paid. Based on this affirmative defense, defendant sought dismissal of the complaint. Also attached to defendant\u2019s answer was a letter dated July 10, 1991, signed by Robert W. Burdick, M.D., and stating \u201cMy patient, James Stack, has terminal endstage heart and lung disease. He is unable to travel anywhere by any means of transportation and should be excused from any court ordered requirements. Mr. Stack is presently under the care of a Hospice.\u201d\nOn October 2, 1991, plaintiff filed another motion for default. The motion alleged that defendant had failed to answer or otherwise respond to the complaint within the time permitted by law. In reviewing the chronology of the suit, plaintiff\u2019s motion did not mention defendant\u2019s answer and affirmative defense filed September 27,1991.\nOn October 7, 1991, the court, noting plaintiff\u2019s motion for default, entered an order granting defendant leave to file an answer instanter. The order also granted plaintiff leave to file a motion attacking defendant\u2019s answer on or before October 21, 1991, granted defendant leave to answer the motion on or before November 4, 1991, and set a status hearing date of November 13, 1991.\nOn October 22, 1991, after a hearing on plaintiff\u2019s motion to expedite discovery, the court ordered defendant to file on or before October 29, 1991, a physician\u2019s affidavit as to defendant\u2019s health and ability to participate in a deposition. The court set the next hearing date for October 27, 1991, for a hearing on plaintiff\u2019s motion to expedite discovery. The court \u201cfurther ORDERED that failure to file a physician\u2019s affidavit may subject defendant\u2019s counsel, Mr. Cleveland, to sanction.\u201d\nOn October 28, 1991, defendant\u2019s attorney, Robert E. Cleveland, filed an affidavit in which he recounted essentially the same things previously presented in the answer and affirmative defense. For example, the affidavit stated that defendant had bypass surgery and a lung removed, that defendant was terminally ill, and that defendant sold his business. Attorney Cleveland again attached a copy of the July 10, 1991, letter, signed by Dr. Burdick (still not notarized) and two other letters supporting defendant\u2019s assertion that he sold his business. On the same date, attorney Cleveland filed a petition for change of venue alleging that the trial judge was prejudiced against defendant and that attorney Cleveland had become aware of this on October 22, 1991.\nOn October 29, 1991, after hearings on plaintiff\u2019s motion to expedite discovery and defendant\u2019s petition for change of venue, the trial court entered an order which denied defendant\u2019s petition for a change of venue. The court also ordered defendant to answer plaintiff\u2019s interrogatories and comply with plaintiff\u2019s request for documents on or before November 15, 1991. In addition, the court ordered defendant to submit to a discovery and evidence deposition \u201cin the city or town of his residence\u201d on November 19,1991.\nOn November 14, 1991, plaintiff filed a motion for participation of foreign attorney. The court entered an order permitting two named persons, Mark Grobosky and Eric Alderman, to participate in this cause for the purpose of taking depositions in the State of New York and assisting in other discovery related matters.\nOn November 21, 1991, plaintiff filed affidavits signed by Mark Grobosky and Eric Alderman verifying that they were licensed New York attorneys available to take defendant\u2019s discovery and evidence deposition on November 19, 1991. On the same date, plaintiff also filed a notice of deposition indicating plaintiff intended to depose the defendant on November 19, 1991, in New York. The notice contained a certification that a copy was sent to defendant\u2019s attorney on November 15, 1991. On November 21, 1991, plaintiff also filed an entry of appearance as additional counsel for Mark Grobosky and Eric Alderman.\nOn November 27, 1991, plaintiff filed a request for production of documents and interrogatories. The attached certificate of service indicates that the request for production of documents and interrogatories were mailed October 16,1991.\nOn December 12, 1991, plaintiff filed a motion for sanctions. The motion alleged that defendant failed to comply with requests for production and failed to answer the interrogatories as ordered by the court on October 29, 1991. The motion also alleged: that on November 7, 1991, plaintiff\u2019s counsel sent defendant\u2019s attorney, Robert E. Cleveland, a reminder that the court had set defendant\u2019s deposition for November 19, 1991, and asked defendant\u2019s attorney to contact plaintiff\u2019s attorney prior to November 15, 1991, to make arrangements for the exact time and place of the depositions; that attorney Cleveland did not respond to the November 7 letter; that on November 15, 1991, plaintiff\u2019s attorney sent attorney Cleveland notice of the deposition; that on November 18, 1991, plaintiff\u2019s attorney left two messages on attorney Cleveland\u2019s office telephone answering machine confirming the deposition would proceed on November 19, 1991; that on November 19, 1991, before regular business hours, attorney Cleveland, apparently responding to the message left on his answering machine, left a message on plaintiff\u2019s attorney\u2019s telephone answering machine stating, \u201cI don\u2019t know what you\u2019re talking about,\u201d and adding that he would not be in his office in the early morning that day; that plaintiff\u2019s attorney received attorney Cleveland\u2019s message shortly after 9 a.m., C.S.T., which is after 10 a.m., E.S.T., when plaintiff\u2019s attorneys were already at the location for the deposition with the court reporter; that defendant failed to appear for the deposition; that on December 6, 1991, plaintiff\u2019s attorney sent to defendant\u2019s attorney a letter indicating that defendant failed to appear for the deposition and that defendant\u2019s attorney should immediately contact plaintiff\u2019s attorney to reschedule the deposition; that defendant\u2019s attorney did not respond to the December 6 letter; and that plaintiff incurred significant expenses in court costs and attorney fees related to the failed deposition. The motion sought reimbursement for costs and fees in the total amount of $2,949, and entry of judgment on plaintiff\u2019s complaint.\nOn December 12, 1991, plaintiff also filed a motion to strike defendant\u2019s answer and affirmative defense for \u201cinsufficiency at law.\u201d The motion sought a default judgment against defendant for failure to answer and the entry of judgment in favor of plaintiff on the basis of her verified complaint.\nOn December 18, 1991, the court entered an order granting defendant leave to file and serve his responses to plaintiff\u2019s motions by December 31, 1991. The order also granted plaintiff leave to file replies on or before January 14, 1992, and set a hearing date for January 22, 1992.\nOn January 13, 1992, defendant filed a motion for change of venue for cause. The motion alleged that the trial court\u2019s entry of its order of December 18, 1991, entertaining plaintiff\u2019s motion for sanctions when the trial judge was aware of defendant\u2019s terminally ill condition, indicated a \u201csadistic prejudice\u201d on the part of the judge toward defendant.\nOn January 13, 1992, plaintiff filed a reply in support of its motion to strike answer and a reply in support of its motion for sanctions.\nOn January 22, 1992, upon reading defendant\u2019s motion for change of venue for cause, the trial judge transferred the case to the presiding judge of the circuit court\u2019s law division, Judge Black, for reassignment. Judge Black reassigned the case to another judge in the same circuit, Judge Jorgensen, who held a lengthy hearing on defendant\u2019s motion for change of venue for cause and then denied defendant\u2019s motion. The case was transferred back to Judge Black, who reassigned it back to the original trial judge, Judge Byrne. Judge Byrne then granted plaintiff\u2019s motion for sanctions, granted plaintiff\u2019s motions to strike defendant\u2019s answer, entered an order striking defendant\u2019s answer and affirmative defense, entered judgment in favor of plaintiff and against defendant in the amount of $27,851.17 ($26,393.49 plus $1,457.68 in interest at $5.48 per day from May 1, 1991, through January 22, 1992), plus costs, and entered judgment in favor of plaintiff and against defendant and attorney Cleveland, jointly and severally, in the amount of $2,949 \u201cas and for the plaintiff\u2019s reasonable attorney\u2019s fees and costs relating to discovery.\u201d Defendant and defendant\u2019s attorney made a timely appeal from the orders and judgments entered by the circuit court on January 22,1992.\nSince plaintiff has not supplied us with a brief, we will decide the merits of the appeal pursuant to the standards set forth in First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128,133.\nThe first issue on appeal is whether the trial court erred when it denied defendant\u2019s motion for a change of venue. Defendant contends that he had an absolute right to a change of venue because his petition for a change of venue was based on the alleged prejudice of the judge and his petition was timely filed. Defendant asserts that his petition was timely filed because the trial court made no substantive rulings before the petition was filed.\nThe Illinois Code of Civil Procedure provides that the right of a civil litigant to a change of venue is absolute where a petition alleging judicial prejudice is filed before trial or hearing and before the trial judge has made any substantive ruling in the case. (Ill. Rev. Stat. 1991, ch. 110, pars. 2 \u2014 1001(a)(2), (c); In re Marriage of Kozloff (1984), 101 Ill. 2d 526, 530.) If timely made, the right to a change of venue is mandatory so that a trial judge has no discretion to deny a timely and proper petition for a change of venue. In re Dominique F. (1991) , 145 Ill. 2d 311, 319.\nHowever, to be timely, a petition for a change of venue must be offered at the earliest practical moment, and a petition is too late if it is presented after the trial judge has ruled on a substantive issue in the case. (City of Chicago in Trust for the Use of Schools v. Hamlin (1962), 24 Ill. 2d 148, 150.) A petition for a change of venue \u201cmust be brought at the earliest practical moment in order to prohibit a litigant from seeking a change of venue only after he has formed an opinion that the judge may be unfavorably disposed toward his or her cause.\u201d Paschen Contractors, Inc. v. Illinois State Toll Highway Authority (1992) , 225 Ill. App. 3d 930, 936.\nHere, defendant presented his motion for a change of venue after the trial court ruled on defendant\u2019s motion to strike plaintiff\u2019s complaint, ordered plaintiff to amend her complaint, and ordered defendant to answer or otherwise respond to the complaint. In addition, before defendant filed his motion plaintiff filed a motion for default, the court continued plaintiff\u2019s motion for default after defendant filed a motion to extend time to respond, defendant filed a purported answer and affirmative defense seeking dismissal of the complaint, plaintiff filed another motion for default on the ground that defendant had failed to answer or otherwise respond by the date set by the court, and the trial court ordered defendant to file a physician\u2019s affidavit in support of defendant\u2019s purported affirmative defense and notified defendant that failure to file the affidavit could subject defendant\u2019s attorney to sanctions. The question before us is whether these actions by the trial court were substantive rulings.\nOur supreme court has concluded that a trial court\u2019s action on a defendant\u2019s motion to strike and a trial court order for a defendant to answer a complaint were substantive rulings and the defendant\u2019s petition for a change of venue after those rulings was properly denied as untimely. (Swanson v. Randall (1964), 30 Ill. 2d 194, 198.) We follow the supreme court and find that the trial court\u2019s actions in this case to partially grant defendant\u2019s motion to strike plaintiff\u2019s complaint and the trial court\u2019s order requiring defendant to answer the complaint were substantive rulings. It is therefore unnecessary for us to consider whether the other trial court actions were substantive rulings. Accordingly, we conclude that defendant\u2019s motion for a change of venue was not timely and that the trial court properly denied defendant\u2019s motion for a change of venue.\nThe next issue on appeal is whether the chief judge of the law division, Judge Black, erred when he reassigned the case for a hearing on defendant\u2019s motion for change of venue for cause. Judge Black assigned the case to an associate judge within the same circuit, Judge Jorgensen.\nIn his brief, defendant maintains that Judge Black\u2019s reassignment of the case to an associate judge \u201cwhose reappointment to continue in that position would be subject to the power and discretion of judges Black and Byrne, who were full Circuit Judges,\u201d created a situation of conflict for Judge Jorgensen. Defendant further asserts that \u201c[wjhether or not Judge Jorgenson [sic] received instructions or suggestions as to how to rule on this matter, while incapable of positive determination, is quite certainly suspect under the circumstances, especially in view of neither counsel apparently having an opportunity to object to Judge Black concerning such assignement [sic] and the relative status of the Judges involved.\u201d Defendant adds that \u201cin view of what subsequently occurred herein, it is quite likely that Judge Jorgenson [sic] received and followed her \u2018marching orders.\u2019 \u201d Defendant ends his argument on this issue by concluding that \u201cthe unfairness to the defendant created by this assignment to Judge Jorgenson [sic] is patently prejudicial to the defendant and cries for the reversal of tha [sic] order and a remanding of this whole matter to a proper, unprejudiced Tribunal.\u201d\nThis argument must be rejected. By its own admission, it is based on mere conjecture. The suggestion, without proof, that a judge would disregard the duties and obligations of her office in order to please others who might have a say in her retention is patently untenable. See American International Hospital v. Chicago Tribune Co. (1983), 120 Ill. App. 3d 435, 440.\nThe next issue is whether the circuit court erred when it denied defendant\u2019s motion for change of venue for cause. After a court has made substantive rulings, such as in this case, the court may grant a petition for change of venue grounded in judicial prejudice only if the petitioner demonstrates good reason to fear prejudice by the court. (Harvey v. Brewer (1987), 166 Ill. App. 3d 253, 259.) The petitioner must set forth specific allegations to support the alleged prejudice, and the petition will be granted only in the sound discretion of the court. (Meyer v. Continental Illinois National Bank & Trust Co. (1990), 200 Ill. App. 3d 601, 604.) A trial judge is presumed to be impartial, and the burden of overcoming this presumption rests with the petitioner, who must show actual prejudice in the form of personal bias stemming from an extrajudicial source and prejudicial trial conduct. (In re Marriage of Hartian (1991), 222 Ill. App. 3d 566, 569.) An appellate court will not disturb a grant or denial of a petition for change of venue absent an abuse of discretion. Gouker v. Winnebago County Board of Supervisors (1967), 37 Ill. 2d 473, 475.\nAt the hearing on defendant\u2019s motion for change of venue for cause, defendant\u2019s attorney, Robert E. Cleveland, made it clear that defendant\u2019s argument centered on defendant\u2019s alleged terminal illness. Attorney Cleveland first stated that \u201c[p]art of the thrust of our motion is the fact that in this particular case, the Defendant is terminally ill and has been for some time.\u201d Attorney Cleveland next referred to the July 10, 1991, letter signed by Dr. Burdick and read the contents of the letter into evidence. Attorney Cleveland then attempted to introduce documents into evidence which he stated he had obtained from the Hospice of Du Page \u201cso the court will understand, if it doesn\u2019t already, what hospice care is.\u201d The court did not allow the documents into evidence primarily on the grounds of relevance and foundation. Attorney Cleveland then referred to a second letter purportedly signed by Dr. Burdick.\nAttorney Cleveland next requested that he and plaintiff\u2019s attorney both be sworn to testify. The judge allowed this for the limited purpose of the hearing \u2014 to determine whether the trial judge was prejudiced against defendant.\nDuring his direct examination of plaintiff\u2019s attorney, defendant attempted to elicit testimony as to whether one of the principals in plaintiff\u2019s attorney\u2019s law firm had made a recent contribution of money to Judge Byrne. Judge Jorgensen did not allow this testimony, finding it \u201cwell beyond the four corners of [the] motion,\u201d not raised in the pleadings, and therefore not properly before the court.\nAttorney Cleveland then made an offer of proof. The offer of proof stated that if plaintiff\u2019s attorney were allowed to testify further on this question, he would testify that Judge Byrne attended a fund-raising event in October 1991 where plaintiff\u2019s attorney\u2019s law firm was a substantial contributor of funds for Judge Byrne\u2019s reelection. The offer of proof continued by claiming that a principal of plaintiff\u2019s attorney\u2019s law firm was seen talking to Judge Byrne at the fund-raising event, that remarks were overheard showing that Judge Byrne was favorably inclined toward the principal, and that this favorable inclination was apparent when remarks made by Judge Byrne at a hearing in this case showed that Judge Byrne had prejudged the matter against defendant and defendant\u2019s attorney and in favor of plaintiff. Plaintiff objected to the offer of proof on the ground that his testimony would not be what defendant\u2019s attorney portrayed it to be. Noting that the offer of proof contained at least double hearsay, Judge Jorgensen allowed it to stand.\nAttorney Cleveland then resumed his examination of plaintiff\u2019s attorney. The questioning attempted to determine whether one of the New York attorneys who was supposed to take defendant\u2019s deposition had filed an appearance. The court found this line of questioning not related to the alleged prejudice of Judge Byrne.\nAttorney Robert E. Cleveland then called himself as a witness for the defense. His testimony essentially recounted defendant\u2019s previous arguments. For example, attorney Cleveland again stated that he had given the trial court two letters signed by Dr. Burdick which indicated that defendant was terminally ill, was in a hospice, should not be subject to depositions, and could not communicate.\nAttorney Cleveland also testified that the trial court\u2019s very entertainment of plaintiff\u2019s motions to compel discovery and for sanctions for defendant\u2019s failure to appear for a deposition when Judge Byrne knew defendant\u2019s condition \u201cshowed that Judge Byrne was prejudiced in a very sadistic manner.\u201d Attorney Cleveland further testified that Judge Byrne\u2019s response to his representation of defendant\u2019s illness was \u201cfile your answer to the motion.\u201d Attorney Cleveland concluded that Judge Byrne\u2019s response \u201cindicates a predisposition to judge this case because of prejudice against terminally ill patients.\u201d\nAttorney Cleveland then testified that Judge Byrne had made a remark in court that showed he had prejudged the matter against defendant. Attorney Cleveland testified that Judge Byrne made the remark when Judge Byrne ruled on plaintiff\u2019s motion to compel discovery. Attorney Cleveland stated that the remark was \u201cthere will be a sanctions hearing against the Defendant in my opinion.\u201d Attorney Cleveland charged that the remark showed that the judge was either personally prejudiced or had been prejudiced by others. Plaintiff\u2019s attorney disputed the characterization of the judge\u2019s remark.\nDuring the hearing on defendant\u2019s motion for change of venue for cause, Judge Jorgensen summarized her findings. The findings included: that defendant failed to comply with the October 22, 1991, order requiring verification of defendant\u2019s condition and therefore defendant\u2019s contention that he was terminally ill was supported only by two unverified letters; that there is conflicting testimony about the content of the allegedly prejudicial remark by Judge Byrne; that Judge Byrne granted a number of continuances to defendant before requiring an affidavit on defendant\u2019s letters; and that the rulings , made by Judge Byrne are insufficient to show that Judge Byrne was , prejudiced against defendant.\nOn appeal, defendant essentially again contends that defendant was in a hospice and therefore must have been terminally ill and unable to comply with plaintiff\u2019s discovery requests. Defendant reiterates his argument that Judge Bryne\u2019s entertainment of a motion to compel compliance with discovery in such circumstances \u201cclearly demonstrates a prejudicial, if not actually sick, attitude and state of mind.\u201d\nWe find that defendant has not shown that Judge Byrne was prejudiced against him and that Judge Jorgensen did not err in denying defendant\u2019s motion for a change of venue for cause. Defendant did not establish specific allegations supporting the alleged prejudice. Attorney Cleveland\u2019s offer of proof with respect to alleged contributions to Judge Byrne was beyond the scope of the motion and was unsubstantiated. The disputed remark allegedly made by Judge Byrne, even if accurate, does not necessarily show he was prejudiced against defendant. Defendant\u2019s arguments relying on Judge Byrne\u2019s alleged failure to take defendant\u2019s condition into account are conclusory at best. The record shows that attorney Cleveland was ordered to provide verification of defendant\u2019s health condition which defendant had raised as an issue, but that attorney Cleveland simply did not provide the required verification. For all these reasons, defendant has failed to overcome the presumption that the trial judge is impartial. Accordingly, we will not disturb Judge Jorgensen\u2019s denial of defendant\u2019s motion for change of venue for cause.\nThe next issue on appeal is whether the trial court erred in imposing sanctions on defendant and his attorney, Cleveland, for discovery rule violations. The trial court imposed two distinct sanctions. First, the court imposed monetary sanctions on defendant and attorney Cleveland for plaintiff\u2019s costs and attorney fees. Second, the court imposed sanctions against defendant by striking defendant\u2019s answer and affirmative defense and entering a default judgment against defendant on the basis of plaintiff\u2019s complaint. We will first consider whether any sanctions for noncompliance with discovery rules were warranted. We will then determine whether each of the particular sanctions was proper in this case.\nUnder supreme court rules, a trial court has extensive authority to supervise discovery and to impose sanctions for discovery rule violations. Supreme Court Rule 219(c) provides:\n\u201cIf a party *** unreasonably refuses to comply with any provision of part E of article II of the rules of this court *** 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, as to claims or defenses asserted in any pleading to which that issue is material, a judgment by default be entered against the offending party or that his action be dismissed with or without prejudice; or\n(vi) that any portion of his pleadings relating to that issue be stricken and, if thereby made appropriate, judgment be entered as to that issue.\nIn lieu of or in addition to the foregoing, the court may order that the offending party or his attorney pay the reasonable expenses, including attorney\u2019s fees incurred by any party as a result of the misconduct ***.\u201d 134 Ill. 2d R. 219(c).\nUnder Rule 219(c), the imposition of sanctions is largely a matter within the discretion of the trial court and will not be disturbed on review unless the sanctions constitute an abuse of discretion such as where the sanctioned party\u2019s conduct was not unreasonable or where the sanction itself is not just. (Kubian v. Labinsky (1988), 178 Ill. App. 3d 191, 196.) The purpose of discovery violation sanctions is to effect discovery and not to inflict punishment. (Kubian, 178 Ill. App. 3d at 196.) Once the trial court has imposed the sanction for noncompliance with a discovery rule or order, the sanctioned party has the burden of establishing that the noncompliance was reasonable or justified by extenuating circumstances or events. Kubian, 178 Ill. App. 3d at 197.\nTo determine whether noncompliance with discovery rules or orders was unreasonable, the trial court should consider whether the offending party\u2019s conduct was characterized by a deliberate and pronounced disregard for the discovery rules or order. (Beiermann v. Edwards (1990), 193 Ill. App. 3d 968, 974.) A court may also consider the importance of the information a party is seeking to have produced. (American Family Insurance Co. v. Village Pontiac-G M C, Inc. (1992), 223 Ill. App. 3d 624, 627.) To determine whether a sanction order was just, a court must look to the conduct that gave rise to the sanction order and to the effect of that conduct on the parties. Beiermann, 193 Ill. App. 3d at 975.\nHere, defendant failed to comply with court-ordered discovery in three ways. First, the trial court ordered defendant to file a physician\u2019s affidavit regarding defendant\u2019s health and ability to participate in a deposition. Defendant did not file such an affidavit. Second, after defendant failed to file the physician\u2019s affidavit and plaintiff filed a motion to expedite discovery, the trial court ordered defendant to answer plaintiff\u2019s interrogatories and comply with plaintiff\u2019s request for documents. Defendant did not answer the interrogatories or supply the requested documents. Finally, on October 29, 1991, the trial court ordered defendant to submit to a deposition on November 19, 1991. Defendant failed to appear for the deposition and defendant\u2019s attorney, Robert E. Cleveland, did not respond to plaintiff\u2019s efforts to reschedule the deposition.\nDefendant did not offer any explanation for these failures to comply with the court\u2019s discovery orders. Instead, defendant essentially chose to argue that the very entry of the orders showed that the trial judge was prejudiced against him.\nOn appeal, defendant argues that plaintiff\u2019s motion for sanctions was flawed because plaintiff did not make a reasonable attempt to resolve differences about discovery pursuant to Supreme Court Rule 201(k) (134 Ill. 2d R. 201(k)). Defendant also maintains that his failure to appear for his deposition was the result of plaintiff\u2019s failure to provide reasonable notice of the deposition pursuant to Supreme Court Rule 206(a) (134 Ill. 2d R. 206(a)). Finally, defendant continues to assert on appeal that the trial judge was prejudiced against defendant and his attorney, Cleveland, and that this alleged prejudice \u201cwas never more apparent\u201d than in the judge\u2019s \u201cabuses of discretion\u201d in ordering sanctions.\nWe find defendant\u2019s arguments unpersuasive. Supreme Court Rule 201(k) requires that \u201c[ejvery motion with respect to discovery shall incorporate a statement that after personal consultation and reasonable attempts to resolve differences the parties have been unable to reach an accord.\u201d (134 Ill. 2d R. 201(k).) However, technical compliance with Rule 201(k) is not required where the record reflects that the parties were unable to reach an accord after reasonable attempts to resolve differences. (Lavaja v. Carter (1987), 153 Ill. App. 3d 317, 325.) Here, attorney Cleveland showed an adamant refusal to budge from his position that the unverified doctor\u2019s letters were sufficient to establish defendant\u2019s terminal illness; defendant simply did not respond to plaintiff\u2019s interrogatories and request for documents; and defendant showed an unwillingness to cooperate in scheduling defendant\u2019s deposition. In the face of such a demonstrated attitude of noncooperation, technical compliance with Rule 201(k) was not required in this case.\nDefendant\u2019s Rule 206(a) arguments are also unpersuasive. Supreme Court Rule 206(a) requires that \u201c[a] party desiring to take the deposition of any person upon oral examination shall serve notice in writing a reasonable time in advance on the other parties.\u201d (134 Ill. 2d R. 206(a).) Defendant argues that plaintiff\u2019s November 15, 1991, mailing of a written notice to depose defendant on November 19, 1991, did not comply with Rule 206(a) because it was not received by attorney Cleveland until the day of the scheduled deposition. However, defendant was previously notified of the deposition by the October 29, 1991, court order directing that defendant\u2019s deposition occur in the city or town of his residence on November 19, 1991. The record indicates that plaintiff\u2019s attorney had previously attempted to arrange with attorney Cleveland the specific time and place of the deposition, but that attorney Cleveland failed to respond. After defendant failed to appear for the court-ordered deposition, plaintiff\u2019s attorney attempted to contact attorney Cleveland to reschedule the deposition, but attorney Cleveland again did not respond. Accordingly, we find that plaintiff substantially complied with Rule 206(a).\nAs seen above, defendant\u2019s arguments attempting to show that the trial judge was prejudiced against him and his attorney failed to establish prejudice. Defendant\u2019s argument that the trial judge\u2019s order of sanctions for discovery violations shows the judge was prejudiced against defendant also fails.\nBased on the foregoing, we conclude that the trial court did not err when it ordered sanctions against defendant for defendant\u2019s violations of the trial court\u2019s discovery orders. We will next consider whether the specific sanctions were proper.\nThe first sanction to be considered is the monetary sanction imposed on defendant and attorney Cleveland. The trial court ordered sanctions in the amount of $2,949 against defendant and attorney Cleveland, jointly and severally, for plaintiff\u2019s costs and attorney fees related to discovery. Plaintiff\u2019s itemized list of fees and costs attached to her motion for sanctions indicates that most of the fees and costs were related to defendant\u2019s deposition. Rule 219(c) clearly requires that a sanction of expenses, including attorney fees, must be related to and be the result of the specific conduct involved in the discovery violation. Dyduch v. Crystal Green Corp. (1991), 221 Illl. App. 3d 474, 480.\nHere, plaintiff\u2019s expenses and fees were the result of defendant\u2019s misconduct in not complying with the discovery orders. If defendant had provided the physician\u2019s affidavit regarding defendant\u2019s health, then plaintiff quite likely would not have incurred these expenses. If defendant had verified that he was unable to be deposed, then plaintiff would not have made the costly arrangements with out-of-State attorneys to take defendant\u2019s deposition. Because the expenses incurred by plaintiff were the result of defendant\u2019s misconduct, the trial court did not err when it sanctioned defendant and attorney Cleveland by ordering them to pay plaintiff\u2019s expenses and attorney fees.\nThe next sanction we consider is whether the trial court erred when it struck defendant\u2019s answer and affirmative defense and entered judgment in favor of plaintiff for the amount shown in plaintiff\u2019s complaint. After granting plaintiff\u2019s motion to strike defendant\u2019s answer and plaintiff\u2019s motion for sanctions, the trial court struck defendant\u2019s answer and affirmative defense and ordered judgment entered in the amount of $26,393.49, plus interest, for a total judgment of $27,851.17 plus costs.\nAlthough defendant has not, per se, contested the imposition of a sanction in the form of striking his answer and entering judgment, we will address the matter. A sanction causing a default judgment, such as striking defendant\u2019s answer, is the most severe Rule 219(c) sanction a court can impose on a defendant and is only proper in cases where the sanctioned party\u2019s conduct showed deliberate, contumacious, or unwarranted disregard of a court\u2019s authority. (Lavaja, 153 Ill. App. 3d at 323.) Courts should impose default orders only as a last resort where all other enforcement powers at the court\u2019s disposal have failed to advance the litigation. (Martinez v. Pfizer Laboratories Division (1991), 216 Ill. App. 3d 360, 373-74.) However, before a default judgment will be set aside, the sanctioned party has the burden of establishing that his failure to comply with discovery orders was justified by extenuating circumstances and must show a willingness to comply with discovery orders in the future. Harris v. Harris (1990), 196 Ill. App. 3d 815, 823.\nHere, defendant\u2019s conduct was deliberate, contumacious, and an unwarranted disregard of the court\u2019s authority. Defendant raised the issue of his health, made the health claim the linchpin of his defense and his noncompliance with discovery orders, and then in the face of a direct order by the court to verify his health status did not provide a physician\u2019s affidavit which could prove his health claim. Defendant did not show any extenuating circumstance which could justify his failure to verify his health status. Nor did defendant show a willingness to comply with future discovery orders. On appeal, defendant\u2019s attorney continues to assert that the unverified doctor\u2019s letters should have been sufficient to establish defendant\u2019s health condition and has continued to defy the court\u2019s authority to order that defendant\u2019s health condition be verified. In view of such recalcitrance, the court had no other effective powers to advance the litigation than to enter a default judgment. For these reasons, we conclude that the trial court did not err when it struck defendant\u2019s answer and affirmative defense and entered judgment in favor of plaintiff.\nThe final matter before us is whether the trial court erred in the amount of the judgment it entered against defendant. Defendant contends that the court improperly entered judgment for an amount shown to be in error when plaintiff\u2019s complaint was amended.\nThe trial court order of January 22, 1991, clearly shows that judgment was entered for the amount of the unamended figure. The order entered judgment for $26,393.49, the amount shown to be due in the original complaint as of May 1, 1991, plus $5.48 per day thereafter. The total amount of the judgment was for $27,851.17 ($26,393.49 plus 266 days from May 1, 1991, through January 21, 1992, at $5.48 per day). The question is whether the trial court properly used the $26,393.49 figure it had previously ruled was in error.\nThe trial court apparently reasoned that, since defendant\u2019s answer was stricken and the complaint had been amended on the basis of the now-stricken answer, the original complaint amount should be used. We believe that this was improper because it would have the effect of punishing defendant for his discovery violations and is therefore contrary to the purpose of Rule 219(c) sanctions.\nThe record shows that the correct amount due on the promissory notes as of February 22, 1991, was $23,896.86 plus $5.48 per day interest thereafter. There are 334 days from February 22, 1991, until January 21, 1992. Three hundred thirty-four days at $5.48 interest per day equals $1,830.32, thus the total amount defendant owes on the notes through the date of judgment should be $25,725.18 ($23,896.86 through February 22, 1991, plus $1,830.32 interest thereafter through January 21, 1992). Pursuant to our power under Supreme Court Rule 366(aX5) (134 Ill. 2d R. 366(a)(5)), we order that the judgment entered by the trial court in favor of plaintiff be changed from $27,851.17 to $25,725.18.\nBased on the foregoing, the judgments of the circuit court of Du Page County are affirmed, with the judgment against defendant in the reduced amount shown above.\nAffirmed as modified.\nGEIGER and DOYLE, JJ., concur.", "type": "majority", "author": "JUSTICE UNVERZAGT" } ], "attorneys": [ "Robert E. Cleveland, of Chicago, pro se, for appellants.", "Manetti & Griffith, Ltd., of Oak Brook, for appellee." ], "corrections": "", "head_matter": "PATRICIA HARTNETT, Plaintiff-Appellee, v. JAMES STACK, Defendant-Appellant (Robert E. Cleveland, Appellant).\nSecond District\nNo. 2\u201492\u20140208\nOpinion filed February 2,1993.\nRehearing denied February 26,1993.\nRobert E. Cleveland, of Chicago, pro se, for appellants.\nManetti & Griffith, Ltd., of Oak Brook, for appellee." }, "file_name": "0157-01", "first_page_order": 177, "last_page_order": 197 }