Locasto v. The City of Chicago ( 2014 )


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    2014 IL App (1st) 113576
    Nos. 1-11-3576, 12-0608, 12-0705, cons.
    Opinion filed February 11, 2014
    Third Division
    ______________________________________________________________________________
    IN THE
    APPELLATE COURT OF ILLINOIS
    FIRST DISTRICT
    ______________________________________________________________________________
    JOSEPH W. LOCASTO                       )
    )
    Plaintiff-Appellant and                 )
    Cross-Appellee,                         )         Appeal from
    )         the Circuit Court
    v.                                      )         of Cook County
    )
    THE CITY OF CHICAGO, a Municipal        )         No. 09 L 5400
    Corporation, JOHN S. McKILLOP, Director )
    Of Training/EMS, ARF ABDELLATIF,        )         The Honorable
    MONICA PORTER, and ANTHONY              )         James D. Egan,
    LONGINI,                                )         Judge Presiding.
    )
    Defendants-Appellees and                )
    Cross-Appellants.                       )
    ______________________________________________________________________________
    PRESIDING JUSTICE HYMAN delivered the judgment of the court, with
    opinion.
    Justices Neville and Pucinski concurred in the judgment and opinion.
    OPINION
    ¶1      For years lawyers have complained about how rarely trial judges mete out sanctions for
    dilatory discovery practices. This reluctance, they say, has contributed to an environment in
    which some lawyers (and parties, too) flout court rules and court orders because the chances
    of unpleasant consequences tends to be so low. But that is not what happened here.
    Nos. 1-11-3576, 12-0608, 12-0705, cons.
    ¶2          Plaintiff Joseph Locasto asks us to award him an additional $1 million in damages for
    emotional suffering on top of the nearly $2 million judgment by default entered as a
    discovery sanction against the City of Chicago and four city employees. The sanction was
    sought after defendants failed to meet several discovery deadlines. Defendants cross-appeal,
    arguing the trial court abused its discretion by entering the default without considering the
    possibility of a less severe sanction.
    ¶3          The trial court took control of discovery early on. Defendants, however, dragged their
    feet on discovery, a relatively common transgression. After Locasto's efforts to obtain the
    discovery without court intervention went nowhere, he moved for a default against
    defendants as a sanction for failing to fulfill their discovery obligations. The trial court
    granted the default. Nothing in the record indicates that, before entering the default, the trial
    court considered a lenient alternative to coax cooperation or warned defendants of default as
    a possible sanction. We hold that the trial court must do both–weigh the efficacy of less
    drastic alternatives and warn–before entering the most damaging sanction available.
    Therefore, we vacate the judgment of default and remand for further proceedings in the trial
    court.
    ¶4                                           BACKGROUND
    ¶5          The City of Chicago hired Joseph Locasto as a paramedic candidate. On May 6 and 7,
    2008, the healthy 31-year-old attended the first two days of training at the fire academy. On
    both days, Locasto and his fellow candidates performed 10 to 12 hours of calisthenics,
    running, and other strenuous physical exercises.        According to Locasto, fire academy
    instructors verbally coerced, intimidated, and hazed the candidates, and refused to let anyone
    2
    Nos. 1-11-3576, 12-0608, 12-0705, cons.
    drink water or other fluids, except during a one-hour lunch break and a single one-minute
    water break toward the end of each day.
    ¶6          After both days of training, Locasto felt extreme soreness in his legs. On the evening of
    the second day, his legs began to swell. The next morning, Locasto noticed he had tea-
    colored urine, which, naturally, caused him alarm. He called his lead academy instructor
    who told him to go to the emergency room. At the hospital, a doctor informed Locasto he
    had rhabdomyolsis, a breakdown of muscle tissue which often leads to acute kidney damage,
    and compartment syndrome, a potentially life-threatening condition due to increased pressure
    within the muscles.     Locasto underwent emergency surgery and spent 30 days in the
    intensive care unit. Locasto's physicians blamed his health problems on the extensive
    workouts and deprivation of water or liquids at the fire academy.
    ¶7          On May 7, 2009, Locasto filed a six count complaint against the City of Chicago (the
    City), director of fire academy EMS training John McKillop, and fire academy instructors
    Arf Abdellatif, Monica Porter, and Anthony Longini. (Plaintiff named another instructor,
    Daryl Johnson, but voluntarily dismissed him.) The first four counts were against the City
    and the last two counts were against the individual defendants.
    ¶8                                    Default for Failure to Answer
    ¶9          On October 15, 2009, the City filed a motion to dismiss under section 2-615 of the
    Illinois Code of Civil Procedure (735 ILCS 5/2-615 (West 2010)), arguing Locasto's claims
    were precluded by the Illinois Pension Code (40 ILCS 5/1-101 et seq. (West 2010). The
    Pension Code prohibits employee suits against employers and fellow employees absent
    allegations of a specific intent to injure. The trial court denied the motion to dismiss, vacated
    all technical defaults, and ordered defendants to answer within 30 days. Defendants failed to
    3
    Nos. 1-11-3576, 12-0608, 12-0705, cons.
    answer the complaint, and Locasto moved for a default. Following a hearing on the motion,
    the trial court gave plaintiffs more time to plead to the complaint and ordered the parties to
    complete discovery within 90 days. Again, defendants failed to answer, and again Locasto
    moved for a default. Then, instead of answering, defendants filed a second motion to dismiss
    that was nearly identical to the first motion. This time, Locasto moved to strike the motion to
    dismiss and asked for an order of default as a sanction under Illinois Supreme Court Rule 137
    (eff. Feb. 1, 1994) on the ground that defendants' motion raised the same issues as their
    earlier motion to dismiss. The trial court agreed and granted the default and set the matter for
    prove-up. Thereafter, over Locasto's objection, the trial judge granted defendant's motion to
    vacate the default and ordered defendants to pay Locasto $3,500 in attorney fees and costs
    within 60 days. The next day, defendants answered and the case proceeded to the discovery
    phase.
    ¶ 10                                    Default for Discovery Delays
    ¶ 11          In March 2011, Locasto issued discovery requests. In April, a case management order
    fixed May 24 for completion of written discovery, and June 21 for completion of oral
    discovery, with treating physicians' depositions to be taken before the case management
    conference set for July 22.
    ¶ 12          On July 15, 2011, Locasto filed his first motion to compel and asked for sanctions under
    Illinois Supreme Court Rule 219(c)(v) (eff. July 1, 2002). Rule 219(c)(v) allows the entry of
    the most potent sanction–dismissal against a plaintiff or a judgment by default against a
    defendant–for unreasonably failing to comply with discovery rules or court orders. He
    attached to the motion a letter from his attorney to the City's attorney asking about the
    whereabouts of the money previously ordered to be paid and several e-mails from his
    4
    Nos. 1-11-3576, 12-0608, 12-0705, cons.
    attorney to the City's attorney from April, May, and July 2011, asking about the outstanding
    discovery.
    ¶ 13          On July 21, 2011, the day before the case management conference, Locasto requested the
    depositions of McKillop, Abdellatif, Porter, Longini, and Johnson on August 2, and 3, 2011.
    ¶ 14          On July 22, the trial judge granted Locasto's motion to compel and entered an order of
    default "against all defendants for repeated discovery violations." Although the individual
    defendants had answered the interrogatories the day before, the answers were incomplete.
    Defendants were given one week to complete all written discovery, and the matter was
    continued until August 3. On July 28, the City responded to Locasto's requests to admit.
    ¶ 15          By August 3, defendants still had not fully answered the interrogatories. Although
    Locasto asked for and was granted leave to amend the interrogatories, the trial court
    continued the default. On August 18, Locasto amended three interrogatories. A few days
    later, Locasto requested the deposition of fire department employee Janet Contursi, who had
    signed defendants' affidavit of completeness regarding document production. Ill. S. Ct. R.
    214 (eff. Jan. 1, 1996). Locasto also issued a second request for the depositions of McKillop,
    Longini, Porter, and Abdellatif, along with a rider for documents.       In late August, the
    individual defendants served amended answers to some, but not all, the open interrogatories.
    ¶ 16          On September 1, Locasto moved to transfer the case for default prove-up, alleging
    defendants had been defaulted three or more times for continued discovery violations and
    had yet to fully answer the interrogatories. Before the next hearing, on September 16, the
    individual defendants completed their responses to the interrogatories. But the trial judge
    found all defendants remained in default for continued discovery violations and ordered
    Contursi and Monica Porter be deposed within 30 days. The matter was continued until
    5
    Nos. 1-11-3576, 12-0608, 12-0705, cons.
    October 21 for case management, status of discovery, and the motion to transfer for default
    prove-up. On September 24, Locasto issued a second request for Contursi's deposition and a
    third request for Porter's deposition.
    ¶ 17            On October 21, the court again found defendants in default for continued discovery
    violations and transferred the case for prove-up. Defendants moved to vacate the default,
    claiming they had complied with all discovery requests, including the depositions, except for
    Contursi's deposition. As to Contursi, defendants claimed "Locasto has chosen not to proceed
    on any of the dates she has been made available," and his attorney never responded to e-mails
    and a letter offering to present Contursi on several dates in September and October.
    ¶ 18            Locasto countered that McKillop, Longini, and Abdellatif had testified about general
    orders used at the fire academy that had not been produced despite his request for them. He
    also noted that his attorney drove from Michigan to Chicago on two occasions to attend
    scheduled depositions of Contursi, only to be stood up on both dates. And, he offered to
    depose Contursi on October 21, before the entry of the "final" default and transfer for prove-
    up.
    ¶ 19            The prove-up hearing was held on November 3, before a judge other than the judge who
    entered the default. Defendants renewed their motion to vacate the default, which was
    denied, although the judge explained, "[he] would allow it to be filed before [the other
    judge], who has a better history of the case." Locasto received an award of almost $2 million
    in damages: $152,788 for medical bills paid by Locasto's insurance, $1,341,127 in lost
    wages and pension, $500,000 for pain and suffering, and $1,996 in court costs. The judge
    denied damages for emotional injuries.
    6
    Nos. 1-11-3576, 12-0608, 12-0705, cons.
    ¶ 20          Defendants filed a postjudgment motion to vacate the default judgment. On November
    19, that motion was continued and the parties ordered to schedule Contursi's deposition.
    ¶ 21          Locasto timely appealed the damages award, arguing the trial court erred in refusing to
    award $1 million for emotional damages based on the unrebutted testimony he presented at
    the prove-up hearing. Defendants moved to dismiss the appeal for lack of jurisdiction or, in
    the alternative, for an extension of time to file a notice of appeal. The trial court, meanwhile,
    stayed hearing the motion to vacate until the appellate court ruled on defendants' motion to
    dismiss the appeal.
    ¶ 22          The appellate court ruled for defendants and dismissed the appeal for want of jurisdiction.
    But, the Illinois Supreme Court entered a supervisory order directing the appellate court to
    vacate the dismissal and proceed with the appeal. Locasto v. City of Chicago, No. 114193
    (Sept. 26, 2012). Defendants requested an extension of time to file a notice of appeal, which
    was granted. The appellate court consolidated the appeals both sides had taken from various
    orders.
    ¶ 23                                             ANALYSIS
    ¶ 24          Locasto argues the trial court erred in refusing to award him an additional $1 million in
    damages for pain, suffering and emotional injury, because evidence supporting that award
    was not rebutted by defendants. Defendants argue the trial court erred by holding them in
    default as a discovery sanction without first exploring and applying a less onerous sanction.
    Alternatively, defendants assert if the default order is not vacated, the judgment for Locasto
    is precluded by the Illinois Pension Code and the damages award was not supported by the
    evidence. Because we find the trial court erred in entering default as a discovery sanction,
    we only address that issue.
    7
    Nos. 1-11-3576, 12-0608, 12-0705, cons.
    ¶ 25          For a party trying to obtain legitimate discovery, dealing with disruptive or manipulative
    conduct can be demoralizing and distracting, and, certainly, has the potential to increase
    expenses. Also, it often leads to increased tensions and a decay of civility between lawyers.
    Indeed, unless and until trial judges clamp down on discovery abuses–be it engaging in
    stonewalling, foot dragging, obfuscation, or any other shenanigans–little incentive exists for
    the already recalcitrant party to comply.
    ¶ 26          Illinois Supreme Court Rule 219 (eff. July 1, 2002) addresses the consequences of a
    party's refusing or failing to comply with rules or court orders regarding discovery. Rule 219
    affords a trial judge broad discretion in fashioning a sanction appropriate under the specific
    circumstances. Generally, a sanction will not be reversed absent an abuse of discretion.
    Cirrincione v. Westminster Gardens Ltd. Partnership, 
    352 Ill. App. 3d 755
    , 761 (2004). In
    determining whether the trial court abused its discretion, a reviewing court looks to the same
    factors that the trial court considers in deciding on a constructive sanction: (1) surprise to the
    adverse party; (2) the prejudicial effect of the proffered evidence; (3) the nature of evidence
    being sought; (4) diligence of the adverse party in seeking discovery; (5) timeliness of the
    adverse party's objection to the testimony or evidence; and (6) the good faith of the party
    offering the evidence. See Peal v. Lee, 
    403 Ill. App. 3d 197
    , 203 (2010). Of these factors,
    no single factor controls and each situation presents a unique factual scenario that bears on
    the propriety of a particular sanction. Smith v. P.A.C.E., 
    323 Ill. App. 3d 1067
    , 1076 (2001).
    ¶ 27      The trial court may enter an array of sanctions as are just against "any party who
    unreasonably refuses to comply with any provisions of [the] court's discovery rules or any
    order entered pursuant to these rules." Shimanovsky v. General Motors Corp., 
    181 Ill. 2d 112
    , 120 (1998). Sanctions have a dual purpose: to combat abuses of the discovery process
    8
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    and maintain the integrity of the court system. P.A.C.E., 323 Ill. App. 3d at 1075. A
    sanction should be tailored to promote discovery, not punish a dilatory party. Sander v. Dow
    Chemical Co., 
    166 Ill. 2d 48
    , 68 (1995).          To the maximum extent that is practicable,
    sanctions should be customized to address the nature and extent of the harm while
    prescribing a cure to the specific offense. One way for trial judges to put the brakes on this
    kind of nonsense and push compliance is to describe the sanction that may be imposed for
    noncompliance in a court order, and then follow through with the sanction should the
    conduct so warrant. Thereafter, an even more intrusive sanction should be imposed for
    continued noncompliance. How long this goes on depends on the situation, but, at least, the
    recalcitrant party knows the repercussions of his, her, or its conduct.
    ¶ 28          The most onerous of all sanctions is a judgment by default on "claims or defenses
    asserted in any pleading to which that issue is material" or dismissal of the offending party's
    action, with or without prejudice. Ill. S. Ct. R. 219(c)(v) (eff. July 1, 2002).
    ¶ 29          Defendants' delays in responding to Locasto's discovery requests apparently (and
    appropriately) earned the opprobrium of the trial court. Defendants treated the deadlines as if
    they were optional and not firm obligations.         Moreover, defendants' dilatory responses
    caused prejudice by preventing Locasto from pressing forward with his case.            Indeed,
    defendants appear to concede that their repeated discovery violations warrant some type of
    sanction. They contend, however, that the trial court abused its discretion by holding them in
    default before less drastic sanctions had been attempted and determined to be ineffective.
    ¶ 30          At Locasto's urging, the trial court granted default under Illinois Supreme Court Rule
    219(c)(v) (eff. July 1, 2002), as the sanction of choice for defendants' failure to provide
    discovery responses. Defendants argue the trial court should have leveled a less lethal
    9
    Nos. 1-11-3576, 12-0608, 12-0705, cons.
    sanction, especially since the issue had not been previously presented to the trial court.
    Defendants also contend that at the time of the prove-up, only Janet Contursi's deposition
    remained, and Locasto refused to depose her because he wanted to proceed with the prove-
    up. Defendants ask that we vacate the judgment of default as frustrating the primary goal of
    Rule 219 sanctions, namely, to facilitate adherence with court discovery rules and discovery
    orders, not punishment.
    ¶ 31          To refute defendants' arguments, Locasto maintains that after the trial court entered the
    July 22 order, the case was continued on four occasions to give defendants an opportunity to
    comply. Not until October 21, 2011, with discovery from defendants still incomplete, did the
    trial court transfer the case for prove-up. The multiple continuances of the July 22 order,
    according to Locasto, constitute a progressive application of the trial court's discovery
    powers to compel full compliance.
    ¶ 32          Locasto also considers relevant defendants' untimely filing of their answer to the
    complaint and the subsequent entry of a default as a sanction under Illinois Supreme Court
    Rule 137 (eff. Feb. 1, 1994) for bringing a second motion to dismiss virtually identical to the
    first. Although later vacated, Locasto contends this illustrates a pattern of delay and refusal
    to follow court orders. And, regarding Contursi's deposition, Locasto asserts Cortursi did not
    appear at scheduled times, and defendants got serious about a date for her deposition only
    after the trial court set the default for prove-up.
    ¶ 33          We disagree with Locasto's contention that a Rule 137 sanction should be considered by
    a trial court when ruling on a Rule 219 sanction. Although Supreme Court Rules 137 and
    219 have similarities in terms of remedies, they serve different purposes and embrace
    different dynamics and facets of litigation.          Rule 137 concerns the pleadings stage of
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    litigation and is intended to be punitive in nature, while Rule 219 specifies the consequences
    of a litigant's abuse or disregard of the discovery rules and discovery-related court orders,
    and is coercive in nature. Given these differences, it would be unfair to consider Rule 137
    sanctions in proceedings under Rule 219 as it would the reverse, to consider Rule 219
    sanctions in proceedings under Rule 137. See In re Marriage of Lai, 
    253 Ill. App. 3d 111
    ,
    118 (1993) (inappropriate to order sanctions for discovery violations based on willful
    disregard of court orders that are unrelated to discovery).
    ¶ 34          While we deplore all dilatory actions, we must respect the distinctions embodied in the
    rules themselves. Nothing in either rule or committee comments suggests that sanctions
    under one rule should be taken into account in determining sanctions under the other rule. In
    any event, at the time the trial court heard the Rule 219 motion for sanctions, it already had
    vacated the Rule 137 sanction, and, thus, the earlier default provided nothing of value.
    ¶ 35          Turning to the ultimate sanction, which is set out in Illinois Supreme Court Rule 219
    (c)(v) (eff. July 1, 2002), default or dismissal, we note both bring about a premature end
    without adjudication on the merits. Hence, a court should reserve an order of default or
    dismissal for the most recalcitrant and unyielding parties. Shimanovsky, 
    181 Ill. 2d at 123
    .
    For this reason, before deploying a Rule 219(c)(v) sanction, the trial court should already
    have considered the six factors listed above and concluded that sanctions against the
    noncomplying party are warranted. Then, the court should weigh four additional factors in
    deciding whether the time has come to impose default or dismissal: (1) the degree of the
    party's personal responsibility for the noncompliance, (2) the level of cooperation and
    compliance with previous discovery and sanction orders, (3) whether less coercive measures
    remain available or, based on the record, would be futile; and (4) whether the recalcitrant
    11
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    party had been warned, orally or in writing, about the possibility of entry of an order of
    default or dismissal. See Poulis v. State Farm Fire & Casualty Co., 
    747 F.2d 863
    , 868 (3d
    Cir. 1984) (relying on several of these factors in adopting a six-factor test for determining the
    propriety of a default judgment).
    ¶ 36          With regard to the party's personal responsibility, if the court determines that more of the
    responsibility for noncompliance lies with the lawyer, the court should assess the effect of
    upping the ante on the lawyer before lowering the boom on the client. On the other hand, if
    the imposition of various lesser sanctions, such as barring the use of documents or witnesses,
    have been tried and not worked, then default or dismissal might be called for. The next
    factor, the level of cooperation and compliance, indicates the amount of progress the
    recalcitrant party has made; the lack of any progress makes the ultimate sanction more likely.
    The third factor is the viability of additional, intermediate sanctions, and the likelihood an
    alternative would have an impact. In other words, is there something short of dismissal or
    default that can get results or has it come to the point that less onerous sanctions would be
    counter-productive. Finally, the trial judge must have alerted the recalcitrant party, orally or
    in writing, of the possibility that default or dismissal may be appropriate.
    ¶ 37          To allow a party to defy a discovery order without facing sanctions can be likened to a
    dog without teeth–all bark and no bite. A pattern of dilatoriness should not be tolerated, as it
    hurts the opposing party and is a burden on the court system. In entering a sanction for
    discovery abuses, a trial court wants to ensure compliance with discovery and advance the
    litigation, not punish the offending party. In addition, the trial court seeks to deter behavior
    that avoids, delays, evades, or otherwise impedes the efficient, cost-effective, timely and
    12
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    collaborative exchange of discovery. It would be a rare case in which the trial court could
    not formulate increasingly severe sanctions.
    ¶ 38          Looking solely at the discovery stage of the litigation, the record shows defendants
    slowly responded to Locasto's discovery requests but did not exhibit blatant disregard for the
    court's authority. In April 2011, the case management order required written discovery to be
    completed by May 24, and oral discovery to be completed by June 21. On July 21, 2011, the
    day before a scheduled case management conference, defendants filed answers to Locasto's
    interrogatories. Defendants also complied slowly with Locasto's request for depositions.
    Locasto initially asked to schedule them for August 2 and 3, 2011 (incidentally, after the
    deadline).   The record shows defendant McKillop deposed on September 6, 2011, and
    Abdellatif and Longini deposed the next day. Defendant Porter was deposed a month later.
    Thus, although defendants did not act expeditiously in responding to the trial court's case
    management order, they did not ignore it either.
    ¶ 39          The one discovery matter defendants never fulfilled was the deposition of Janet Contursi,
    a City employee, which Locasto cites as support for the trial court's default order. Locasto
    asserts Contursi failed to attend depositions scheduled for September 6, and October 7, 2011.
    Locasto further asserts he offered to depose Contursi on October 21, before the entry of the
    judgment of default. Although only the City was responsible for ensuring that Contursi be
    deposed, the default included the individual defendants. While Contursi did not appear on the
    dates Locasto requested, the record shows the City informed Locasto's attorney that Contursi
    could be deposed on September 21 or October 12, 18, 21, or 24. Therefore, Locasto shares
    fault for the inability to take Contursi's deposition.
    13
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    ¶ 40          More significant, though, is Locasto's response to defendants' delays in completing
    discovery and complying with the trial court's discovery orders. The record shows that
    Locasto filed a motion for default on July 15, 2011. One week later, on July 22, 2011, the
    trial court entered a default order "against all defendants for repeated discovery violations"
    and gave defendants one week to furnish all written discovery. The court then entered
    continuing default orders on August 11 and September 16, and finally on October 21, 2011,
    before transferring the case for prove-up.
    ¶ 41          While the trial court acted appropriately and responsibly in setting deadlines, Locasto
    went for the jugular, default, in the first instance rather than seek sanctions in proportion to
    the gravity of the violations. In seeking the sanction of default, Locasto went too far. The
    trial court should have considered and invoked a less onerous sanction.
    ¶ 42          Also, before the July 22 order, the trial court never warned defendants that their failure to
    comply could result in the sanction of "last resort," the sanction that should be reserved until
    "after all the court's other enforcement powers have failed to advance the litigation."
    Shimanovsky, 
    181 Ill. 2d at 123
    . Nor does the record indicate that on July 22, the trial court
    found the defendants' "actions show a deliberate, contumacious or unwarranted disregard of
    the court's authority." 
    Id.
    ¶ 43          A proper application of progressive discovery sanctions is illustrated by Koppel v.
    Michael, 
    374 Ill. App. 3d 998
     (2007). In Koppel, two months after filing their amended
    complaint, plaintiffs moved for discovery sanctions on the grounds that defendants had failed
    to respond to plaintiffs' request for production of documents, as well as answer plaintiff's'
    first set of interrogatories. Koppel, 374 Ill. App. 3d at 1000. In response, the trial court gave
    defendants one month to answer the interrogatories and produce the requested documents.
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    Id. When defendants failed to comply with that order or appear in court, the trial court
    ordered defendants to pay plaintiffs' attorney fees for the appearance as a sanction. Id. The
    court also " 'advised [defendants] that the nature of the sanctions imposed will become more
    severe as their non-compliance persists.' " Id. A month later, after plaintiffs filed a renewed
    motion for default judgment for defendants' continuing refusal to comply with the court's
    discovery orders, the trial court ordered defendants to pay $500 in connection with its
    previous order as well as the fees plaintiffs incurred in preparing the renewed motion and
    appearing in court. Id. at 1000-01. The court also again informed defendants " 'sanctions
    will increase with [your] continuing non-compliance with the court's orders.' " Id. at 1001.
    A month later, again, the trial court reminded defendants "sanctions [will] increase until
    compliance." Id. At the next status hearing, after finding that defendants had failed to
    comply with plaintiffs' discovery requests, the trial court ordered defendants to pay plaintiffs
    the monetary sanctions. The court also held " 'by virtue of defendants' continuing non-
    compliance with discovery, defendants are barred from calling any witnesses at trial.' " Id.
    The court informed defendants that the bar "would be vacated if there was compliance." Id.
    Three months later, the trial court entered default judgment in plaintiffs' favor as a sanction
    "for 'defendants' continuing noncompliance with this court's discovery orders.' "             Id.
    Defendants moved to vacate the default judgment, but when neither the defendants nor their
    attorney appeared at the hearing, the court denied the motion and awarded damages to
    plaintiffs. Id.
    ¶ 44          In affirming the trial court's default judgment, the appellate court noted "[t]he trial court
    issued several orders from January 2005 to July 2005, which entered increasing sanctions
    against defendants to compel discovery. Those orders culminated in the July 11, 2005, entry
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    Nos. 1-11-3576, 12-0608, 12-0705, cons.
    of a default judgment." Id. at 1005. The court further stated defendants " 'have shown that
    no sanction would encourage them to satisfy their obligations and respect the Court's
    authority.' " Id. at 1007.
    ¶ 45          Increasingly harsher sanctions were not employed here. One week after plaintiff filed his
    motion for default under Supreme Court Rule 219(c)(v), the court granted Locasto's request
    for a default. Further, unlike in Koppel, where the trial court warned that failing to comply
    with its orders would result in increasingly harsher sanctions and followed through on those
    warnings before entering a default judgment, the trial court here entered a default judgment
    without first having advised defendants that default was a possibility.
    ¶ 46          In the absence of any consideration of intermediate sanctions and an advance warning
    that continued dilatory responses could result in a default, we find the judgment of default
    unwarranted and remand to the trial court for further proceedings.
    ¶ 47                                           CONCLUSION
    ¶ 48          For the above reasons, we reverse the trial court's default judgment and remand for
    further proceedings consistent with this opinion.
    ¶ 49          Reversed and remanded.
    16
    

Document Info

Docket Number: 1-11-3576, 1-12-0608 1-12-0705 cons.

Filed Date: 2/11/2014

Precedential Status: Non-Precedential

Modified Date: 4/17/2021