{ "id": 3180425, "name": "ALVANO VALDIVIA, Plaintiff-Appellant, v. THE CHICAGO AND NORTH WESTERN TRANSPORTATION COMPANY et al., Defendants-Appellees", "name_abbreviation": "Valdivia v. Chicago & North Western Transportation Co.", "decision_date": "1980-08-25", "docket_number": "No. 79-2066", "first_page": "1123", "last_page": "1127", "citations": [ { "type": "official", "cite": "87 Ill. App. 3d 1123" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "330 N.E.2d 878", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1968, "pin_cites": [ { "page": "880" } ], "opinion_index": 0 }, { "cite": "29 Ill. App. 3d 407", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2498649 ], "year": 1968, "pin_cites": [ { "page": "410" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/29/0407-01" ] }, { "cite": "369 N.E.2d 267", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "54 Ill. App. 3d 1", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3405245 ], "pin_cites": [ { "page": "3" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/54/0001-01" ] }, { "cite": "293 N.E.2d 742", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "10 Ill. App. 3d 1", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5392877 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/10/0001-01" ] }, { "cite": "357 N.E.2d 195", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "198" } ], "opinion_index": 0 }, { "cite": "43 Ill. App. 3d 759", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2723326 ], "weight": 2, "pin_cites": [ { "page": "763" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/43/0759-01" ] }, { "cite": "243 N.E.2d 27", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "103 Ill. App. 2d 449", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 1599835 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/103/0449-01" ] }, { "cite": "264 N.E.2d 266", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "year": 1968, "pin_cites": [ { "page": "268" }, { "page": "269" } ], "opinion_index": 0 }, { "cite": "130 Ill. App. 2d 835", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2824421 ], "weight": 4, "year": 1968, "pin_cites": [ { "page": "837" }, { "page": "838" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/130/0835-01" ] }, { "cite": "241 N.E.2d 488", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "100 Ill. App. 2d 410", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2820083 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-app-2d/100/0410-01" ] }, { "cite": "226 N.E.2d 6", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1968, "opinion_index": 0 }, { "cite": "37 Ill. 2d 180", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2864902 ], "weight": 3, "year": 1968, "opinion_index": 0, "case_paths": [ "/ill-2d/37/0180-01" ] }, { "cite": "323 N.E.2d 435", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "25 Ill. App. 3d 864", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2700742 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-app-3d/25/0864-01" ] }, { "cite": "377 N.E.2d 1164", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "61 Ill. App. 3d 125", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3345314 ], "weight": 2, "pin_cites": [ { "page": "128" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/61/0125-01" ] } ], "analysis": { "cardinality": 570, "char_count": 11306, "ocr_confidence": 0.883, "pagerank": { "raw": 2.0115012480645882e-07, "percentile": 0.7443069074683505 }, "sha256": "95b877bb1ae4e72f5a05537c13f08a574368003badf74a987655a95fd73e18a0", "simhash": "1:33b67eeee265db64", "word_count": 1856 }, "last_updated": "2023-07-14T21:56:36.886143+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "ALVANO VALDIVIA, Plaintiff-Appellant, v. THE CHICAGO AND NORTH WESTERN TRANSPORTATION COMPANY et al., Defendants-Appellees." ], "opinions": [ { "text": "Mr. JUSTICE O\u2019CONNOR\ndelivered the opinion of the court:\nPlaintiff, Alvano Valdivia was injured in a fall while sandblasting a railroad overpass structure. On July 28, 1977, he filed a multicount complaint against numerous corporations including The Baltimore and Ohio Railroad Company and The Baltimore and Ohio Chicago Terminal Railroad Company (B&O), Portable Tool Sale and Service, Inc. and Portable Equipment Company, Inc. (Portable), City of Chicago and Albin Carlson and Company.\nOn August 25, 1977, Portable filed interrogatories and noticed plaintiff\u2019s deposition for June 16, 1978. Subsequently on September 6, 1977, B&O noticed plaintiff\u2019s deposition and filed interrogatories. Plaintiff, on May 15, 1978, after Portable\u2019s motion to dismiss for failure to answer interrogatories had been filed, answered Portable\u2019s interrogatories. Plaintiff failed to answer B&O\u2019s interrogatories which did not duplicate Portable\u2019s.\nOn April 30,1979, Portable moved to dismiss plaintiff\u2019s complaint for his wilful failure to appear at discovery depositions on six different occasions in June, August, October and December, 1978 and February and April, 1979. At the hearing on the motion on that date, the court gave plaintiff\u2019s counsel the option either to dismiss plaintiff\u2019s complaint and refile it within one year or to produce plaintiff on or before a date picked by plaintiff\u2019s counsel. Counsel selected the second option and picked July 1,1979, as the cut-off date for the deposition. The trial court stated that if plaintiff did not appear by the cut-off date, he would, on motion, dismiss plaintiff\u2019s complaint with prejudice.\nBy agreement, plaintiff\u2019s deposition was scheduled for June 20,1979. On that date counsel for B&O and other defendants, a court reporter and a translator appeared at the office of Portable\u2019s counsel for the deposition. Neither plaintiff nor his counsel appeared. Plaintiff\u2019s counsel was called at his office. He stated that plaintiff did not appear for the deposition and that he, counsel, would not come to Portable\u2019s office. Plaintiff did not appear for a deposition at any time on or before July 1, 1979.\nOn July 16, 1979, B&O, City of Chicago and Albin Carlson and Company moved to dismiss plaintiff\u2019s complaint with prejudice. Plaintiff filed no written response or an affidavit, nor did he offer sworn oral testimony with reference to his failure to appear for his deposition. An attorney who appeared on behalf of plaintiff\u2019s attorney (who was on active military duty) stated that plaintiff, who spoke no English, was confused as to the June 20 date and asked for another date for his deposition. The trial court dismissed plaintiff\u2019s complaint with prejudice. On August 2,1979, plaintiff filed a motion to vacate the order of dismissal and submitted his affidavit entirely in Spanish. Defendants did not file anything in opposition to the motion to vacate. No certified translation of plaintiff\u2019s affidavit was furnished either to the trial court or to defendants. At this court\u2019s request a translation was furnished to this court.\nAt the hearing on the motion to vacate, August 23, 1979, plaintiff\u2019s counsel stated he could not read the affidavit. He understood that in it plaintiff said that he misunderstood the date. The attorney added that plaintiff speaks no English and all communications are through his oldest daughter, 14 years old. Plaintiff misunderstood the date as June 22 and had asked for that day off from work. Plaintiff\u2019s counsel also stated that some of the defendants agreed on a new date; some did not.\nThe court considered possible alternative sanctions, but concluded that a fine would not insure compliance; further, the court could not read the affidavit in Spanish; the only effective sanction was dismissal. The motion to vacate was denied. In the same order, the court granted Portable\u2019s motion to dismiss. This dismissal resulted in eliminating all the defendants.\nPlaintiff appeals contending that the dismissal with prejudice was inappropriate.\nSupreme Court Rule 219(c) gives a trial court broad powers to impose sanctions for failure to comply with discovery orders, according to the circumstances of each case. (Ill. Rev. Stat. 1979, ch. 110A, par. 219.) The courts have many times stated the extent and limitations of the Rule.\nIn Treadwell v. Chiakmakis (1978), 61 Ill. App. 3d 125, 377 N.E.2d 1164, the court said at pages 127-28:\n\u201cRule 219 of the Illinois Supreme Court Rules, governing pretrial procedures, provides:\n\u2018If a party * * * unreasonably refuses to comply with any provision of Rules 201 through 218, or fails to comply with any order entered under these rules, the court * \u00b0 * may enter, in addition to remedies elsewhere specifically provided, such orders as are just e e V (Ill. Rev. Stat. 1975, ch. 110A, par. 219(c).)\nUnder this rule the trial court has broad discretion in the conduct of pretrial discovery procedures and such discretion includes the imposition of reasonable sanctions against parties guilty of dilatory practice. (Savitch v. Allman (1975), 25 Ill. App. 3d 864,323 N.E.2d 435.) The Illinois Supreme Court has recognized that such breadth of power requires careful exercise of discretion in order to balance the needs of truth and the imposition of an excessive burden to litigants. (People ex rel. General Motors Corp. v. Bua (1967), 37 Ill. 2d 180, 226 N.E.2d 6.) However, a reviewing court will not interfere with the exercise of such discretion unless the discretion has been clearly abused. Booth v. Sutton (1968), 100 Ill. App. 2d 410, 241 N.E.2d 488.\nDespite this allowance for broad judicial discretion, courts have been understandingly lenient with and sympathetic to plaintiffs who have been deprived of their day in court, absent some showing of a deliberate and contumacious disregard of the rules or of the court\u2019s order. (Savitch v. Allman (1975), 25 Ill. App. 3d 864, 323 N.E.2d 435.) It has been held that in those situations where a party has not exhibited such a disregard, it is an abuse of discretion to deny the plaintiff a hearing on the merits of his claim. Bergin v. Ashford (1970), 130 Ill. App. 2d 835, 264 N.E.2d 266; Gillespie v. Norfolk & Western Ry. Co. (1968), 103 Ill. App. 2d 449, 243 N.E.2d 27.\u201d\nWhile Rule 219 vests the trial court with discretion to impose an appropriate sanction for noncompliance, an abuse of that discretion may constitute reversible error. (See In re Estate of Fado (1976), 43 Ill. App. 3d 759, 357 N.E.2d 195.) It is fundamental, moreover, that the purpose of the imposition of sanctions should be to promote the goal of discovery, not to punish the offending party. (People ex rel. General Motors Corp. v. Bua (1967), 37 Ill. 2d 180, 226 N.E.2d 6.) In determining whether the noncompliance is unreasonable, the standard is whether the offending party\u2019s conduct is characterized by a deliberate and pronounced disregard for the rules and the court. Serpe v. Yellow Cab Co. (1973), 10 Ill. App. 3d 1, 293 N.E.2d 742.\nIn Hansen v. Skul (1977), 54 Ill. App. 3d 1, 3, 369 N.E.2d 267, the court said:\n\u201cDismissal of a party\u2019s cause of action \u2018is a drastic sanction and should be employed only as a last resort, when the uncooperative party shows \u201ca deliberate, contumacious or unwarranted disregard of the court\u2019s authority\u201d [Citations.].\u2019 (Department of Transportation v. Zabel (1975), 29 Ill. App. 3d 407, 410, 330 N.E.2d 878, 880, accord, Booth v. Sutton (1968), 100 Ill. App. 2d 410, 241 N.E.2d 488.) In any event, the sanction order entered must be just. As stated in In re Estate of Fado (1976), 43 Ill. App. 3d 759, 763, 357 N.E.2d 195, 198, a just order is one which, to the degree possible, assures both discovery and trial on the merits.\u201d\nIn Treadwell, the court further stated (61 Ill. App. 3d 125, 128):\n\u201cIn Bergin v. Ashford (1970), 130 Ill. App. 2d 835, 264 N.E.2d 266, it was held that the trial court abused its discretion where it had dismissed the plaintiff\u2019s personal injury suit for failure to comply with discovery procedures. There, the plaintiff had failed to appear at two depositions that had been arranged by defendant\u2019s counsel. Citing People ex rel. General Motors Corp. v. Bua (1967), 37 Ill. 2d 180, 226 N.E.2d 6, the court ruled that although Rule 219 provides for sanctions to be imposed when a party unreasonably refuses to comply with discovery procedures, \u2018 \u201cthe court may not impose sanctions which are designed not to accomplish the objects of the discovery but to impose punishment.\u201d \u2019 130 Ill. App. 2d 835, 837, 264 N.E.2d 266, 268.\nThe plaintiff\u2019s failure to comply with the discovery procedures in Bergin was held not to demonstrate \u2018a persistent failure or unreasonable refusal to comply with discovery rules or any order of the trial court.\u2019 (130 Ill. App. 2d 835, 838, 264 N.E.2d 266, 269.) Therefore, the court concluded that the plaintiff\u2019s conduct did not constitute such a disregard of the rules as to require a dismissal of his suit.\u201d\nSimilarly here, under the circumstances, plaintiff\u2019s failure to appear for his deposition on June 20 did not constitute such a deliberate or contumacious act as to warrant the dismissal of his suit. Because of the language barrier created by plaintiff\u2019s inability to speak English, he misunderstood by 2 days the date of the deposition. He thought it was June 22 and not June 20. His counsel\u2019s request for another date was agreed to by some defendants, but not by others. We were informed on oral argument in answer to a question from the bench that counsel for defendants were notified in advance that plaintiff\u2019s deposition would not go ahead on each of the earlier six dates. We find that plaintiff\u2019s failure to appear on June 20 was not a deliberate act. Dismissal of his suit with prejudice was an abuse of discretion as was the failure to vacate the order of dismissal.\nParenthetically, we note that his affidavit in Spanish overlooked section 1 of \u201cAn Act establishing English as the official language of the State of Illinois\u201d (Ill. Rev. Stat. 1979, ch. 1, par. 3005): \u201cThe official language of the State of Illinois is English.\u201d A certified translation should have been supplied at the time the affidavit was filed.\nBecause of the language problem, plaintiff\u2019s counsel should have verified, before June 20, that plaintiff would be present. Because he did not and because, when plaintiff did not appear at his office in time for the deposition on June 20, he failed to communicate that fact to those waiting at the deposition site until called from there, he will be required to make reimbursement for the cost of the reporter and translator who were present, but not for the time of the attorneys there.\nThe orders of July 16,1979, and August 23,. 1979, are reversed and the cause remanded for further proceedings including the fixing of the costs of the reporter and translator to be reimbursed by plaintiff\u2019s counsel.\nOrders reversed and cause remanded with directions.\nMcGLOON and CAMPBELL, JJ., concur.", "type": "majority", "author": "Mr. JUSTICE O\u2019CONNOR" } ], "attorneys": [ "John J. Lowery, of Chicago, for appellant.", "Leonard S. Goslawski and Paul V. Esposito, both of Lewis, Overbeck & Furman, of Chicago, for appellees." ], "corrections": "", "head_matter": "ALVANO VALDIVIA, Plaintiff-Appellant, v. THE CHICAGO AND NORTH WESTERN TRANSPORTATION COMPANY et al., Defendants-Appellees.\nFirst District (1st Division)\nNo. 79-2066\nOpinion filed August 25, 1980.\nJohn J. Lowery, of Chicago, for appellant.\nLeonard S. Goslawski and Paul V. Esposito, both of Lewis, Overbeck & Furman, of Chicago, for appellees." }, "file_name": "1123-01", "first_page_order": 1145, "last_page_order": 1149 }