Powers v. Rosine ( 2011 )

ILLINOIS OFFICIAL REPORTS
Appellate Court
Powers v. Rosine, 2011 IL App (3d) 100070Appellate Court DENNIS E. POWERS and BRENDA J. STORY-PHILLIPS,
Caption Individually, Plaintiffs-Appellees, v. EUGENE M. ROSINE, Defendant
(Scott E. Umland, Defendant’s Attorney, Contemnor-Appellant).
District & No. Third District
Docket No. 3-10-0070
Filed August 23, 2011
Held In an action for personal injuries arising from an automobile accident
(Note: This syllabus involving a drunk driver where plaintiffs sought punitive damages, the
constitutes no part of trial court properly granted plaintiffs’ motion for supplemental discovery
the opinion of the court concerning defendant’s financial status.
but has been prepared
by the Reporter of
Decisions for the
convenience of the
reader.)
Decision Under Appeal from the Circuit Court of Tazewell County, No. 08-L-120; the
Review Hon. Scott A. Shore, Judge, presiding.
Judgment Affirmed.
Counsel on Scott E. Umland, of Fleming & Umland, of Peoria, for appellant.
Appeal
Edward R. Durree and Christopher H. Sokn, both of Kingery, Durree,
Wakeman & Ryan, of Peoria, for appellees.
Panel JUSTICE McDADE delivered the judgment of the court, with opinion.
Presiding Justice Carter and Justice Holdridge concurred in the judgment
and opinion.
OPINION
¶1 The plaintiffs, Dennis E. Powers and Brenda J. Story-Phillips, brought suit against the
defendant, Eugene M. Rosine, after sustaining injuries in an automobile accident caused by
Rosine. The court granted the plaintiffs’ motion for leave to propound supplemental
discovery to obtain information of Rosine’s financial status pursuant to their request for
punitive damages. Rosine and his attorney, Scott E. Umland, objected to this request and
refused to disclose Rosine’s financial information. Umland subsequently filed a “Request for
Contempt Order” seeking “to test the correctness of the trial court’s discovery order.” The
trial court thus found Umland in contempt. On appeal, Rosine and Umland contend that: (1)
in a case where the plaintiffs seek punitive damages, evidence of a defendant’s financial
status is not relevant, discoverable or admissible; and (2) the due process analysis in the
cases of International Union of Operating Engineers, Local 150 v. Lowe Excavating Co.,
225 Ill. 2d 456 (2006), BMW of North America, Inc. v. Gore, 517 U.S. 559 (1996), and State
Farm Mutual Automobile Insurance Co. v. Campbell, 538 U.S. 408 (2003), “unintentionally
creates a violation of state and federal equal protection clauses by irrationally protecting
wealthy defendants and prejudicing less wealthy defendants.” We affirm.
¶2 FACTS
¶3 The record indicates that on September 17, 2008, the plaintiffs filed a complaint against
Rosine for injuries they sustained during an automobile accident where Rosine drove under
the influence and collided with Powers’ vehicle and the vehicle in which Story-Phillips was
a passenger. Both Powers and Story-Phillips suffered injuries, and Rosine subsequently pled
guilty to a charge of driving under the influence.
¶4 On January 28, 2009, the plaintiffs filed an amended complaint seeking to include a
request for punitive damages. Pursuant to the filing of their amended complaint, the plaintiffs
also filed a motion for leave to propound supplemental discovery of Rosine’s financial status.
The plaintiffs specifically contended that since they now sought punitive damages from
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Rosine, his financial status was relevant and discoverable. Rosine filed a motion objecting
to the plaintiffs’ request. After a July 31, 2009, hearing, the trial court granted the plaintiffs’
motion to propound supplemental discovery of Rosine’s financial status.
¶5 The plaintiffs subsequently served Rosine with a request for supplemental discovery
regarding his financial status. In turn, Rosine filed a motion objecting to plaintiffs’ discovery
request, contending that if the jury or court considered his wealth in fashioning an award of
punitive damages, it would violate the equal protection clauses of the United States and
Illinois Constitutions. Rosine thus did not answer the plaintiffs’ request for discovery of his
financial status. The plaintiffs then filed a motion to compel discovery, and on November 24,
2009, the trial court entered an order directing Rosine to respond to the discovery requests
regarding his financial status.
¶6 On December 22, 2009, Umland filed a motion requesting a finding of contempt for
failing to respond to the plaintiffs’ request for supplemental discovery on Rosine’s financial
status. The trial court granted Umland’s motion and found him in contempt of court. Umland
appealed.
¶7 ANALYSIS
¶8 On appeal, Umland first contends that “in cases where plaintiffs seek punitive damages,
a defendant’s financial worth is [not] relevant, discoverable and/or admissible in light of the
due process analysis expressed in Lowe Excavating, 225 Ill. 2d 456, Gore, 517 U.S. 559, and
Campbell, 538 U.S. 408, regarding the constitutionality of punitive damages awards.”
(Emphasis in original). Based on our review of the record, however, we believe the issue
should be framed differently. Specifically, the question presented to this court is whether the
trial court abused its discretion when it compelled Rosine to answer discovery regarding his
financial status, and when it subsequently found Umland in contempt for failing to do so.
¶9 Our analysis begins with an examination of the law of punitive damages. There are two
separate challenges available to a defendant who seeks to contest an award of punitive
damages against him–one is a constitutional challenge, and the other arises pursuant to
Illinois common law. See Franz v. Calaco Development Corp., 352 Ill. App. 3d 1129 (2004).
Illinois courts have long recognized that “[t]he Illinois common law punitive damages
inquiry is distinct from the constitutional challenge.” Blount v. Stroud, 395 Ill. App. 3d 8, 22
(2009); see also Dubey v. Public Storage, Inc., 395 Ill. App. 3d 342 (2009); Lawlor v. North
American Corp of Illinois, 409 Ill. App. 3d 149 (2011).
¶ 10 Punitive damages awards are intended to serve two purposes; first, to punish the
wrongdoer, and second, to deter that party and others from committing similar wrongs in the
future. Deal v. Byford, 127 Ill. 2d 192 (1989). Thus, the assessment of punitive damages is
a “ ‘fact-sensitive’ undertaking.” Franz, 352 Ill. App. 3d at 1142 (citing Cooper Industries,
Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424, 437 n.11 (2001)). In assessing whether
an award of punitive damages is excessive in a particular case, Illinois courts consider a fact-
specific set of relevant circumstances, including: (1) the nature and enormity of the wrong;
(2) the financial status of the defendant; and (3) the potential liability of the defendant.
Franz, 352 Ill. App. 3d 1129; see also Deal, 127 Ill. 2d 192.
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¶ 11 The financial status of the defendant is important because an amount sufficient to deter
one individual may be trivial to another. Black v. Iovino, 219 Ill. App. 3d 378 (1991); see
also Fopay v. Noveroske, 31 Ill. App. 3d 182, 200 (1975) (court noted that “the law in Illinois
clearly allows evidence of the defendant’s net worth and pecuniary position in cases in which
punitive damages are proper”). Essentially, the amount of the punitive damages award should
send a clear message loud enough to be heard, but not so loud as to deafen the listener.
Ciampi v. Ogden Chrysler Plymouth, Inc., 262 Ill. App. 3d 94 (1994).
¶ 12 Illinois Supreme Court Rule 201(b)(1) (eff. July 1, 2002) provides for broad discovery
and warrants “full disclosure regarding any matter relevant to the subject matter involved in
the pending action.” A trial court is “afforded great latitude in determining the scope of
pretrial discovery, as the concept of relevance for discovery purposes encompasses not only
what is admissible at trial, but also that which may lead to the discovery of admissible
evidence.” Tomczak v. Ingalls Memorial Hospital, 359 Ill. App. 3d 448, 456 (2005). A trial
court’s ruling on a motion to compel discovery will not be reversed absent an affirmative and
clear showing of an abuse of discretion. Tomczak, 359 Ill. App. 3d 448.
¶ 13 We conclude that in this case, Rosine’s financial status is relevant and therefore properly
discoverable. Here, the trial court permitted the plaintiffs to file an amended complaint to
include a request for punitive damages. On appeal, Umland does not challenge the propriety
of this ruling. Pursuant to well-established Illinois common law jurisprudence, the financial
status of a defendant is relevant in a case where a judge or jury may properly assess an award
of punitive damages, as the intent of a punitive damage award is to punish the wrongdoer and
deter that person, and others, from committing similar acts in the future. Consequently,
information regarding Rosine’s financial status would need to be admitted to accomplish
these purposes in this case.
¶ 14 Additionally, we note that a defendant may seek to challenge an award of punitive
damages on appeal under the Illinois common law, the constitution, or both. Accordingly,
in order to furnish a complete record for review, evidence of the defendant’s financial status
is necessary for an appellate court to properly review a challenge to an award of punitive
damages under the Illinois common law. Thus, it follows that in order to make a complete
record for review, this information must be relevant, discoverable, and admissible at trial.
¶ 15 Essentially, we agree with the plaintiffs’ contention that Umland has offered an argument
on appeal that only acknowledges case law centered on a constitutional review of an award
of punitive damages. However, a defendant may request a court to review whether an award
of punitive damages is excessive under the constitution, Illinois common law, or both. We
make no comment on whether the financial status of a defendant is a relevant consideration
under the constitutional inquiry, as that question is not before us today. Moreover, our review
of the cases cited by Umland indicates that these courts considered only the constitutional
side of the inquiry.
¶ 16 Specifically, the Lowe court noted “that neither party [was] raising a common law
challenge to the award of punitive damages.” Lowe, 225 Ill. 2d at 466. Nothing in the
language of Lowe indicates that our supreme court intended to extend its analysis of the
constitutional claim to the common law challenge to punitive damages. Additionally, we note
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that the Supreme Court in Gore and Campbell concluded that the respective punitive
damages awards were excessive in violation of the fourteenth amendment due process clause.
Gore, 517 U.S. 559; Campbell, 538 U.S. 408. Neither Court commented on the propriety of
an award of punitive damages under an alternate standard, nor did they extend the federal
constitutional analysis to the common law of any state.
¶ 17 Furthermore, we have not found, and defense counsel has not cited, a case or statute
providing either that the financial status of a defendant is no longer a relevant inquiry under
the Illinois common law, or that the financial status is wholly inadmissible in a trial
involving punitive damages. Therefore, we conclude that the trial court did not abuse its
discretion when it permitted the plaintiffs to propound supplemental discovery on Rosine
regarding his financial status. Accordingly, the court did not err when it found Umland in
contempt. However, because the plaintiffs do not object, we will grant Umland his requested
relief of vacating the contempt order.
¶ 18 Umland also contends that the due process analysis in Lowe Excavating, Gore and
Campbell unintentionally creates a violation of the equal protection clauses of the state and
federal constitutions by irrationally protecting wealthy defendants and prejudicing less
wealthy defendants. This case, however, is still in the pretrial stages; thus, neither the jury
nor the court has imposed an award of punitive damages against Rosine. Consequently, in
the absence of an actual award of punitive damages, we do not have sufficient information
to determine whether an award of punitive damages has violated Rosine’s right to equal
protection under the constitution. Therefore, this question is not ripe for our consideration,
and we may not now consider it. See Smart Growth Sugar Grove, LLC v. Village of Sugar
Grove, 375 Ill. App. 3d 780 (2007) (court noted that if the harm claimed by a plaintiff is
speculative, the claim is unripe and the court should not rule on it).
¶ 19 CONCLUSION
¶ 20 For the foregoing reasons, the judgment of the trial court of Tazewell County is affirmed.
¶ 21 Affirmed.
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