{ "id": 2873742, "name": "Dieter Urmoneit et al., Plaintiffs-Appellants, v. Giselle S. Purves, Defendant-Appellee", "name_abbreviation": "Urmoneit v. Purves", "decision_date": "1975-12-03", "docket_number": "No. 74-412", "first_page": "939", "last_page": "942", "citations": [ { "type": "official", "cite": "33 Ill. App. 3d 939" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "24 Ill.App.3d 967", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5308408 ], "year": 1975, "pin_cites": [ { "page": "969" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/24/0967-01" ] }, { "cite": "97 Ill.App.2d 311", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2477145 ], "year": 1968, "pin_cites": [ { "page": "321" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/97/0311-01" ] }, { "cite": "9 Ill.App.3d 1085", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2844344 ], "year": 1973, "pin_cites": [ { "page": "1088-1089" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/9/1085-01" ] }, { "cite": "3 Ill.App.3d 596", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2842756 ], "year": 1971, "pin_cites": [ { "page": "599" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/3/0596-01" ] }, { "cite": "15 Ill.App.3d 695", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2460944 ], "year": 1973, "pin_cites": [ { "page": "698" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/15/0695-01" ] }, { "cite": "60 Ill.2d 246", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5414169 ], "year": 1975, "pin_cites": [ { "page": "252, 253" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/60/0246-01" ] } ], "analysis": { "cardinality": 396, "char_count": 6576, "ocr_confidence": 0.745, "pagerank": { "raw": 1.2160799672544708e-07, "percentile": 0.5971224577185774 }, "sha256": "326f3ed4367e3f36e7d2cbf7b79b895994b9f4a89dec05f73aa358d175366b33", "simhash": "1:baab6db935468461", "word_count": 1078 }, "last_updated": "2023-07-14T15:25:47.184380+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Dieter Urmoneit et al., Plaintiffs-Appellants, v. Giselle S. Purves, Defendant-Appellee." ], "opinions": [ { "text": "Mr. PRESIDING JUSTICE SEIDENFELD\ndelivered the opinion of the court:\nThe plaintiffs sued to rescind a contract for the purchase of a beauty salon. As a result of the failure of the plaintiff Hannelore Frensch to appear for the taking of her deposition pursuant to an order of court th\u00e9 defendant\u2019s motion to dismiss the suit under Supreme Court Rule 219(c) was granted. (Ill. Rev. Stat. 1973, ch. 110A, par. 219(c).) Plaintiffs appeal, contending that the dismissal was an abuse of discretion, that defendant\u2019s motion to dismiss was procedurally defective and that the court erred in refusing to certify a \u201cbystander\u2019s\u201d report of proceedings.\nOn the common law record before us it appears that defendant served notice that he would take the discovery deposition of the plaintiffs on May 23, 1974. On June 11, 1974, defendant moved for an order requiring that plaintiffs appear on a date certain, alleging that the plaintiffs \u201crefused to appeal- for a deposition as requested on May 23, 1974.\" Also on June 11, 1974, the plaintiffs through their attorney filed a petition reciting that they were no longer business associates and that Dieter Urmoneit had assigned his interest to Hannelore Frensch and sought to be dismissed as a party plaintiff. The court by order of June 11, 1974, continued the petition but ordered that the deposition of Hannelore Frensch be taken on September 16, 1974.\nThe next order of record is dated July 29, 1974, and recites that counsel for the plaintiffs has advised defendant\u2019s counsel that Urmoneit was out of the country and may not return. Plaintiffs\u2019 counsel was ordered to file a verified petition within seven days stating Urmoneit\u2019s -whereabouts and his availability for deposition. The motion to set a deposition date was continued to August 8, 1974.\nOn August 8, 1974, the deposition of Urmoneit was ordered for August 20, and counsel for the plaintiffs was granted ten days to file an affidavit stating the whereabouts of Hannelore Frensch.\nOn August 14, 1974, plaintiffs\u2019 attorney filed an' affidavit giving the whereabouts of Hannelore Frensch at an address in Germany, stating that to the best of counsel\u2019s knowledge she would reside at that address until on or about September 10, 1974, when she would return and be available for her deposition.\n.\u25a0 On September 25,' 1974, defendant filed a motion to dismiss alleging that the deposition of Hannelore Frensch had been set for September-16 by court order and continued to September 17 at the request of her counsel but that on September 17 her counsel called defendant\u2019s counsel and stated that Hannelore Frensch would not appear that afternoon, could not be reached, and thus that it was uncertain when she would be- available for her deposition.\nThe order entered September 27, 1974, from which the appeal is taken recited that it was on defendant\u2019s motion to dismiss, \u201c[f]or plaintiffs continued refusal to comply with orders of discovery\u201d and further recites that the court .\"heard arguments of counsel.\u201d\nFollowing the entry of the order both plaintiffs\u2019 attorney and defendants attorney presented a proposed report of proceedings pursuant to Supreme Court Rule 323(c) (Ill. Rev. Stat. 1973, ch. 110A, par. 323(c)), both of which were refused certification by the court on the basis that no evidence had been heard on the September 25th motion to dismiss.\nThe plaintiffs\u2019 proposed report is merely the substance of the arguments heard. The purpose of providing alternative methods of reporting the events at trial is to provide a record upon which a party\u2019s contentions arise. (See People v. Hopping, 60 Ill.2d 246, 252, 253 (1975).) We fail to see how counsel\u2019s arguments and representations without the offer of proof of any kind would be relevant to the issues on this appeal. Moreover, the remedy for failure to certify the report of proceedings would have been mandamus. See Silverstein v. Grellner, 15 Ill.App.3d 695, 698 (1973).\nThe trial judge\u2019s order of dismissal must therefore be reviewed upon the basis of the common law record. The plaintiffs did not respond to the allegations contained in the motion to dismiss and they stand admitted. The burden of proof was on the plaintiff Hannelore Frensch to establish by affidavit or otherwise that her failure to comply with tire court rules and the court\u2019s order was warranted by extenuating circumstances or events. (Schwartz v. Moats, 3 Ill.App.3d 596, 599 (1971).) Sanctions for failure to comply with court orders for pretrial discovery rest within the broad discretion of the trial court, and its exercise will not be interfered with unless it appears that it has been abused. (Hearst v. City of Chicago, 9 Ill.App.3d 1085, 1088-1089 (1973); In re Estate of Atwood, 97 Ill.App.2d 311, 321 (1968).) Upon tire record before us we conclude that the trial court did not abuse its discretion in dismissing the case for failure to comply with Supreme Court Rule 219(c) (Ill. Rev. Stat. 1973, ch. 110A, par. 219(c)) and with the order of the trial court.\nPlaintiffs\u2019 remaining contention that the court erred in granting defendant\u2019s motion to dismiss since it did not incorporate a statement that after personal consultation and reasonable attempts to resolve differences opposing counsel were unable to reach an accord (Ill. Rev. Stat. 1973, ch. 110A, par. 201(k)) is without merit. No objection was made in the trial court to the alleged deficiency of the defendant\u2019s motion to dismiss and it may not be challenged for the first time on appeal. (See Schilson v. Weinberg, 24 Ill.App.3d 967, 969 (1975).) Supreme Court Rule 201 (k) added in 1974 was \u201cdesigned to curtail undue delay in the administration of justice and to discourage motions of a routine nature.\u201d (See Ill. Ann. Stat. ch. 110A, \u00a7 201, Committee Comments, at 49 (Smith-Hurd 1975-1976 pocket part).) However, the motion was not routine. Moreover, the motion to dismiss does contain a statement of personal consultation and defendant was not obliged to wait indefinitely when plaintiffs\u2019 counsel noted that it was uncertain when the deposition could be taken.\nWe therefore affirm the judgment of the trial court.\nAffirmed.\nGUILD and HALLETT, JJ., concur.\nAlthough it does not appear in the record, defendant\u2019s counsel concedes that, this deposition was taken on August 20, 1974.", "type": "majority", "author": "Mr. PRESIDING JUSTICE SEIDENFELD" } ], "attorneys": [ "James J. Regan, of Northbrook, for appellants.", "C. William Bockelman, Jr., of Behanna & Pasquesi, of Highland Park, for appellee." ], "corrections": "", "head_matter": "Dieter Urmoneit et al., Plaintiffs-Appellants, v. Giselle S. Purves, Defendant-Appellee.\n(No. 74-412;\nSecond District (1st Division)\nDecember 3, 1975.\nJames J. Regan, of Northbrook, for appellants.\nC. William Bockelman, Jr., of Behanna & Pasquesi, of Highland Park, for appellee." }, "file_name": "0939-01", "first_page_order": 967, "last_page_order": 970 }