{ "id": 3184712, "name": "HUMBOLDT-ARMITAGE CORPORATION et al., Plaintiffs-Appellants, v. ILLINOIS FAIR PLAN ASSOCIATION, Defendant-Appellee", "name_abbreviation": "Humboldt-Armitage Corp. v. Illinois Fair Plan Ass'n", "decision_date": "1980-07-16", "docket_number": "No. 79-1992", "first_page": "888", "last_page": "892", "citations": [ { "type": "official", "cite": "86 Ill. App. 3d 888" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "400 N.E.2d 515", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "80 Ill. App. 3d 540", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3232963 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/80/0540-01" ] }, { "cite": "398 N.E.2d 264", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "79 Ill. App. 3d 63", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5608174 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/79/0063-01" ] }, { "cite": "273 N.E.2d 703", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "1 Ill. App. 3d 984", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5312432 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/1/0984-01" ] }, { "cite": "243 N.E.2d 27", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "103 Ill. App. 2d 449", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 1599835 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/ill-app-2d/103/0449-01" ] }, { "cite": "226 N.E.2d 6", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "37 Ill. 2d 180", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2864902 ], "opinion_index": 0, "case_paths": [ "/ill-2d/37/0180-01" ] }, { "cite": "323 N.E.2d 435", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "25 Ill. App. 3d 864", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2700742 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/25/0864-01" ] }, { "cite": "277 N.E.2d 529", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "3 Ill. App. 3d 596", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2842756 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-app-3d/3/0596-01" ] }, { "cite": "357 N.E.2d 195", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "43 Ill. App. 3d 759", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2723326 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/43/0759-01" ] } ], "analysis": { "cardinality": 548, "char_count": 10899, "ocr_confidence": 0.9, "pagerank": { "raw": 2.8518942808783786e-07, "percentile": 0.8407312549882252 }, "sha256": "c1c66f89924373676e3a05c5d79c6df330daaa67084bd751eca54507f76da5f6", "simhash": "1:a9e3abaf73ce0db5", "word_count": 1760 }, "last_updated": "2023-07-14T21:36:08.867369+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "HUMBOLDT-ARMITAGE CORPORATION et al., Plaintiffs-Appellants, v. ILLINOIS FAIR PLAN ASSOCIATION, Defendant-Appellee." ], "opinions": [ { "text": "Mr. JUSTICE McNAMARA\ndelivered the opinion of the court:\nThe trial court dismissed the complaint of plaintiffs, HumboldtArmitage Corporation et al. against defendant, Illinois Fair Plan Association, for Humboldt\u2019s failure to answer interrogatories. The court also denied Humboldt\u2019s motion to vacate the order of dismissal and Humboldt\u2019s subsequent motion for reconsideration. (Other defendants had been named in the complaint but were dismissed in an unrelated order which is not involved in this appeal.)\nHumboldt brought this action against defendant, alleging failure to pay a property damage claim pursuant to an insurance policy. The suit, seeking $132,500, charged that Humboldt\u2019s property had been vandalized but that defendant refused to pay under its policy. Defendant filed an answer to the complaint and, on September 1, 1978, served written interrogatories on Humboldt.\nOn April 23, 1979, in response to defendant\u2019s request for sanctions against Humboldt for its failure to answer interrogatories, the trial court ordered Humboldt to answer within 14 days. On June 25, 1979, defendant again sought sanctions for Humboldt\u2019s failure to answer the interrogatories. Defendant\u2019s motion recited that on December 19, 1978, and February 28, 1979, it had requested Humboldt to answer the interrogatories; and that, despite the court order of April 23, Humboldt had not answered the interrogatories, resulting in prejudice to defendant. Defendant requested dismissal of Humboldt\u2019s complaint and entry of judgment for itself. On June 25,1979, defendant\u2019s motion was continued by agreement of the parties to July 9,1979. On July 9,1979, the trial court dismissed the complaint because of Humboldt\u2019s failure to answer the interrogatories.\nOn July 26,1979, Humboldt presented an unverified motion to vacate the order of July 9, 1979. In support of the motion, Humboldt\u2019s counsel stated that on July 9 an ex parte order was entered dismissing the complaint, that a clerical error in his law office resulted in counsel\u2019s absence from court on July 9, and that Humboldt was diligently attempting to compile the information requested by defendant. The trial court denied Humboldt\u2019s motion to vacate the order of dismissal.\nThereafter, on August 6, 1979, without leave of court, Humboldt filed the answers to the interrogatories with the clerk of the court. The answers were signed by Harold Rider, an officer of Humboldt; his signature was notarized on July 6, 1979. On August 8, 1979, Humboldt filed another unverified motion asking the court to reconsider its rulings and requesting that it be allowed to file the answer to the interrogatories instanter. Humboldt\u2019s counsel stated that on April 23, 1979, he had informed defendant\u2019s counsel that a copy of a sworn statement made by Harold Rider was required to answer the interrogatories properly, and that defendant\u2019s counsel promised to provide a copy of the statement. The motion further recited that on May 25 defense counsel informed Humboldt\u2019s attorney that a copy of Rider\u2019s statement had not been ordered, but that Humboldt\u2019s attorney was given the name of the reporting service. The reporting service promised to furnish a copy of the statement, and the parties agreed to continue the motion for sanctions until July 9. Prior to July 9, the reporting service advised Humboldt\u2019s counsel that the statement would not be furnished until an old reporting bill was paid. The bill was paid, but the reporting service did not provide Humboldt\u2019s counsel with the statement until July 29, 1979. The motion stated that thereafter, Humboldt\u2019s counsel prepared the answer to the interrogatories. Defendant did not file a responsive pleading. The trial court denied Humboldt\u2019s motion to reconsider its earlier rulings.\nWithout discussion, we hold that the trial court acted well within its discretion in dismissing the complaint on July 9, 1979, for Humboldt\u2019s failure to answer interrogatories. (Supreme Court Rule 219(c), Ill. Rev. Stat. 1979, ch. 110A, par. 219.) On July 9, Humboldt had not answered the interrogatories and was not present in court to explain its failure to do so. The order of July 9 dismissing the complaint was proper.\nWe find, however, that the trial court erred in denying Humboldt\u2019s timely motion for reconsideration of the order of dismissal. In our view, the trial court was justified in imposing sanctions against Humboldt, but the sanction of dismissal of the complaint was too severe.\nThe imposition of sanctions for noncompliance with discovery rules and orders rests largely within the discretion of the trial court and will not be disturbed on review unless there is an abuse of that discretion. (In re Estate of Fado (1976), 43 Ill. App. 3d 759, 357 N.E.2d 195.) While courts are reluctant to impose the sanction of dismissal for noncompliance with discovery rules and orders, such drastic action is not an abuse of discretion where the offending party shows a deliberate, contumacious, or unwarranted disregard for the court\u2019s authority. (Schwartz v. Moats (1971), 3 Ill. App. 3d 596, 277 N.E.2d 529.) The offending party has the burden of establishing by affidavit or otherwise that its failure to comply with rules or court orders was warranted by extenuating circumstances. (Savitch v. Allman (1975), 25 Ill. App. 3d 864, 323 N.E.2d 435.) Sanctions, however, should be imposed to promote discovery, not to punish the noncomplying party. (See People ex rel. General Motors Corp. v. Bua (1967), 37 Ill. 2d 180, 226 N.E.2d 6.) Thus the entry of a default or dismissal under Rule 219(c) should be employed as a last resort in order to enforce the rules of discovery, and should be set aside when a trial on the merits may be had without hardship or prejudice. Gillespie v. Norfolk & Western Ry. Co. (1968), 103 Ill. App. 2d 449, 243 N.E.2d 27; see Gray v. Yellow Cab Co. (1971), 1 Ill. App. 3d 984, 273 N.E.2d 703.\nThe record demonstrates that Humboldt was dilatory in complying with the discovery request as well as careless in its failure to keep the trial court advised as to why it had not complied. The record does not, however, disclose a deliberate, contumacious or unwarranted disregard for the court\u2019s authority justifying a dismissal of the complaint. In the motion for reconsideration, Humboldt\u2019s attorney stated that on April 23 he had informed defendant he needed a copy of Rider\u2019s sworn statement. On May 25, Humboldt\u2019s attorney was informed that defendant did not have a copy of the statement. Humboldt\u2019s attorney thereupon ordered a copy of the statement and, apparently in some recognition of Humboldt\u2019s need, defendant agreed to continue its motion for sanctions until July 9. When Humboldt did not appear, the complaint was dismissed. Within 30 days, Humboldt filed the answers to the interrogatories and sought to vacate the dismissal. In view of all the circumstances, we believe the order of dismissal should have been vacated. Dismissal of a complaint for failure to comply with discovery is drastic and should be employed only as a last resort. Schwartz v. Moats (1971), 3 Ill. App. 3d 596, 277 N.E.2d 529.\nDefendant argues, however, that the answers to the interrogatories on their face were notarized on July 6. Defendant urges that this fact demonstrates Humboldt\u2019s explanation to the trial court for not answering the interrogatories sooner was untrue and thereby reveals Humboldt\u2019s disregard for the court\u2019s authority. Humboldt insists that the notarization date was an innocent mistake made by the notary and maintains that the mistake was never noticed nor urged in the trial court. Defendant correctly points out, however, that since Humboldt has not furnished us with a report of proceedings of the trial court hearing on August 8, the notarization must be accepted as it appears. Even accepting the fact that Rider signed the answers on July 6, a contumacious and deliberate disregard of the court\u2019s authority is not demonstrated. The answers to the interrogatories were not crucial to the litigation, and it is clear that if Humboldt had the answers to the interrogatories in its possession on July 6, its counsel\u2019s failure to file them could be only inadvertent or inept rather than an attempt to conceal facts or flout the court\u2019s authority.\nDefendant places strong stress on a decision of this court, Big Three Food & Liquor, Inc. v. State Farm Fire & Casualty Co. (1979), 79 Ill. App. 3d 63, 398 N.E.2d 264, in arguing that Humboldt\u2019s dilatory conduct exhibited a deliberate and contumacious disregard of the court\u2019s authority, warranting the dismissal of the complaint. We believe that case to be inapplicable to the circumstances before us. In that case, plaintiff not only deliberately did not answer interrogatories, but it failed to proceed diligently with any part of the lawsuit despite admonitions by the trial court.\nCiting a decision of this court, Drafz v. Parke, Davis & Co. (1980), 80 Ill. App. 3d 540, 400 N.E.2d 515, defendant also contends that Humboldt\u2019s motion to reconsider, filed and disposed of within 30 days of the order of dismissal, was improper because the trial court already had denied its motion to vacate the order of dismissal. In Drafz, this court held that a trial court does not have jurisdiction to vacate an order of dismissal on motion filed more than 30 days after the entry of dismissal. The court did not find that the trial court could not hear a second post-judgment motion filed and heard within 30 days from the entry of the final order.\nIn sum, we do not believe the circumstances warranted the drastic action of dismissal of the complaint. The trial court abused its discretion in imposing such a sanction.\nSupreme Court Rule 219(c) authorizes that in lieu of or in addition to the various sanctions, the court may order the offending party or his attorney to pay reasonable expenses incurred by any party as a result of the misconduct. We direct the trial court to conduct a hearing in order to determine whether it should impose reasonable costs and fees. If the court so determines, the allowance should be restricted to expenses incurred in the trial court in securing the answers and such allowance should be compensatory, not punitive.\nAccordingly, the judgment of the circuit court of Cook County is reversed and the cause is remanded for further proceedings consistent with the holdings of this opinion.\nReversed and remanded.\nMcGILLICUDDY, P. J., and SIMON, J., concur.", "type": "majority", "author": "Mr. JUSTICE McNAMARA" } ], "attorneys": [ "Scott & Fulkerson and Sexner & Wolfe, Ltd., both of Chicago (Alan L. Fulkerson and Edward A. Scott, III, of counsel), for appellants.", "Epton, Mullin, Segal & Druth, Ltd., of Chicago (Gerald B. Mullin, Abraham W. Brussell, and Mary F. Stafford, of counsel), for appellee." ], "corrections": "", "head_matter": "HUMBOLDT-ARMITAGE CORPORATION et al., Plaintiffs-Appellants, v. ILLINOIS FAIR PLAN ASSOCIATION, Defendant-Appellee.\nFirst District (3rd Division)\nNo. 79-1992\nOpinion filed July 16, 1980.\nScott & Fulkerson and Sexner & Wolfe, Ltd., both of Chicago (Alan L. Fulkerson and Edward A. Scott, III, of counsel), for appellants.\nEpton, Mullin, Segal & Druth, Ltd., of Chicago (Gerald B. Mullin, Abraham W. Brussell, and Mary F. Stafford, of counsel), for appellee." }, "file_name": "0888-01", "first_page_order": 910, "last_page_order": 914 }