May 14, 2001

No. 2--00--0073

Defendants, Richard Yungen and Tammie Yungen, appeal theorder of the circuit court of Winnebago County entering a defaultjudgment in favor of plaintiff, Jeremy Buffington. We reverse andremand.

The record discloses the following. On September 25, 1998,plaintiff filed a four-count complaint against defendants torecover for personal injuries and property damage allegedlysustained by plaintiff when his car collided with a car driven byRichard and owned by Tammie. Counts I and II alleged property andbodily injury damages against Richard. Counts III and IV allegedproperty and bodily injury damages against Tammie.

On November 24, 1998, the trial court ordered defendants tofile a written answer and a Supreme Court Rule 222 (166 Ill. 2dR. 222) disclosure statement within 21 days. The matter was alsoset to March 25, 1999, for an arbitration hearing.

On January 11, 1999, plaintiff filed a notice compelling the appearance of witnesses, a notice of intent pursuant to SupremeCourt Rule 90 (145 Ill. 2d R. 90), a notice to produce, andinterrogatories to Richard and Tammie. On February 9, 1999, thetrial court entered a default judgment against defendants forfailing to file an answer. On February 25, 1999, the trial courtvacated the default conditioned upon defendants' paying $300 inattorney fees to plaintiff's attorney.

On March 5, 1999, Richard filed a motion to strike anddismiss count II "in lieu of answer" because another claim, countI of No. 98--AR--776 directed against Richard for the sameaccident and the same bodily injury claim as count II of thepresent complaint, was pending. Richard argued that it wouldexpose him to two judgments for the same alleged wrong and heshould not be made to answer twice for the same action. Plaintifffiled a motion to consolidate the two cases. On March 9, 1999,the court granted plaintiff's motion to consolidate and dismissedcount II of the present claim.

On March 17, 1999, plaintiff filed a motion to compeldiscovery. On March 18, 1999, the trial court granted defendants 21 days to complete discovery and set the arbitration hearing dateto April 19, 1999.

On April 2, 1999, defendants filed a Rule 222 disclosurestatement and an answer to the complaint. Defendants also filedan appearance and jury demand. On April 8, 1999, the courtgranted defendants leave to answer counts III and IV ofplaintiff's complaint. On April 13, 1999, defendants filed anamended answer to plaintiff's complaint and a motion for summaryjudgment as to counts III and IV directed against Tammie.

On April 22, 1999, plaintiff filed a motion for discoverysanctions against defendants for their failure to respond to thediscovery. The trial court granted the motion, sanctioningdefendants with $400 in attorney fees.

On May 27, 1999, the parties appeared before the trial courton defendants' motion for summary judgment. No other motions werepending. Without ruling on defendants' motion for summaryjudgment, the trial court struck the amended answer and entereda default judgment against defendants for failing to respond todiscovery as previously ordered.

On June 3, 1999, following a prove-up, the trial courtentered judgment for plaintiff against defendants, jointly andseverally, as to counts I and III for property damage toplaintiff's car in the amount of $4,325, plus costs, and againstTammie as to count IV for bodily injuries in the amount of $1,388,plus costs. Defendants filed a motion to vacate and attachedanswers to interrogatories. On July 1, 1999, the trial courtdenied the motion.

On July 1, 1999, the trial court vacated the default judgmentagainst Tammie as to count IV on plaintiff's motion. Thereafter,Tammie filed a motion for summary judgment. The trial courtgranted the motion, and count IV was dismissed.

On December 16, 1999, the trial court severed theconsolidated cases and entered a final judgment against defendantsas to counts I and III. Case No. 98--AR--776 remains pending. There are no reports of the proceedings included in the record onappeal.

On appeal, defendants contend that the trial court abused itsdiscretion in entering the default order and denying their motionto vacate. They claim that (1) their actions did not exhibit a deliberate, contumacious, or unwarranted disregard for the trialcourt's authority; (2) they had no notice that a motion to strikethe answers and to enter a default judgment would be presented tothe trial court when the court, sua sponte, entered judgmentagainst them; (3) they were improperly sanctioned twice for thesame conduct; and (4) the trial court failed to address Tammie'spending summary judgment motion before entering the defaultjudgment. For the reasons that follow, we reverse and remand.

Supreme Court Rule 219(c) (166 Ill. 2d R. 219(c)) providesthat where a party unreasonably refuses to comply with discoveryrules or orders, the trial court may enter "on motion" "suchorders as are just" to remedy the situation. The imposition ofsanctions is a matter largely within the discretion of the trialcourt and should not be disturbed on review unless the orderconstitutes an abuse of discretion, such as where the record showsthat the party's conduct was not unreasonable or where thesanction itself is not just. Hartnett v. Stack, 241 Ill. App. 3d157, 172 (1993). "Because the purpose of these sanctions is toeffect discovery, rather than to punish the dilatory party[citation], a 'just order' under Rule 219(c) is one which, to thedegree possible, ensures both the accomplishment of discovery anda trial on the merits." Martinez v. Pfizer Laboratories Division,216 Ill. App. 3d 360, 373 (1991).

In Vortanz v. Elmhurst Memorial Hospital, 179 Ill. App. 3d584 (1989), the plaintiff argued that the use of the phrase "onmotion" in Rule 219(c) implies that a party must present a writtenmotion before a sanction is imposed and that the trial court hadno authority to dismiss his complaint on its own motion. We foundthat the phrase "on motion" means that it can be made orally orin writing. Vortanz, 179 Ill. App. 3d at 589. Moreover, becausedefense counsel orally requested that the court impose sanctionswhen both parties were in court on another matter, we found itunnecessary to decide whether Rule 219(c) requires a writtennotice to be filed before sanctions may be imposed or whether atrial court has the authority to impose such sanctions sua sponte. Vortanz, 179 Ill. App. 3d at 589. However, we agreed with theplaintiff that the order was void because the plaintiff receivedno notice that a motion would be presented seeking the reliefgranted in the trial court's order. See Maras v. Bertholdt, 126Ill. App. 3d 876, 881 (1984)(before a trial court enters a neworder, a party must give notice to other parties that a motionwill be presented, and, without such notice, the order is void). We concluded that, because the order was void, the trial courtabused its discretion by denying the motion to vacate that order. Vortanz, 179 Ill. App. 3d at 590.

Similar to Vortanz, defendants argue that the failure to givethem notice that a motion would be presented seeking the reliefgranted in the trial court's order rendered the default judgmentorder void. We agree. Here, as in Vortanz, defendants were incourt for a hearing on their motion for summary judgment.Defendants received no notice that a motion seeking a defaultjudgment would be presented. Moreover, there is no record thatplaintiff made an oral application to the court for such a motion. Nor does plaintiff allege that an oral motion was in fact givenat the hearing on defendants' motion for summary judgment. Wetherefore conclude the trial court's default order was void.

Relying on In re Rehabilitation of American MutualReinsurance Co., 238 Ill. App. 3d 1, 11 (1992), where theAppellate Court, First District, concluded that the failure toserve a nonmoving party with notice renders a subsequent orderbased on that motion voidable rather than void, plaintiff claimsthat defendants have not been prejudiced by the failure to receivenotice because defendants were or should have been well aware thatthey had not responded to the discovery order within 21 days ofthe previous sanction. We disagree. Defendants had a right tomake their defense, and common justice dictates that in order toenjoy that right they must first be notified. See City of Chicagov. American National Bank & Trust Co., 171 Ill. App. 3d 680, 688(1988). The denial of that right was prejudicial. Accordingly,because the order entering a default judgment against defendantswas void, we hold that the trial court abused its discretion bydenying the motion to vacate that order.

Furthermore, Rule 219(c) contains a list of sanctions thatthe court may impose to insure compliance with discovery rules ororders, such as staying the proceedings, barring testimony,striking claims or defenses, awarding fees and costs, institutingcontempt proceedings, entering a default judgment, and dismissingthe action. 166 Ill. 2d R. 219(c). A default judgment and adismissal of the action, being the most drastic sanctions, areones that courts are reluctant to impose. Martinez, 216 Ill. App.3d at 373. A court should impose such sanctions only as a lastresort where the actions of the party demonstrate a deliberate,contumacious, and unwarranted disregard of the court's authority; only where all other enforcement powers at the court's disposalhave failed to advance the litigation should the court order sucha penalty. Martinez, 216 Ill. App. 3d at 373-74. The sanctionsmay be set aside where a trial on the merits could be had withouthardship or prejudice. Martinez, 216 Ill. App. 3d at 374. See,e.g., Hartnett, 241 Ill. App. 3d at 174 (defendant alleged he wasdeathly ill and could not attend a deposition but failed to filea physician's affidavit as proof as ordered by the trial court);Perimeter Exhibits, Ltd. v. Glenbard Molded Binder, Inc., 122 Ill.App. 3d 504, 513 (1984) (defendant deliberately left the stateknowing his deposition was required).

In the present case, the record contains an order of defaultentered against defendants for their failure to file an answer tothe complaint on February 2, 1999. The order was vacated onFebruary 25, 1999, and, in exchange for the court's vacating thedefault, defendants were sanctioned and ordered to pay $300 inattorney fees. By April 13, 1999, defendants had filed an amendedanswer and a Rule 222 disclosure statement. Subsequently, onApril 22, 1999, the trial court granted plaintiff's motion forsanctions for failing to respond to discovery, ordering defendantsto pay $400 in attorney fees. On May 27, 1999, the trial courtentered a second default judgment sua sponte against defendantsfor failing to answer the discovery as previously ordered. Whileit is clear that defendants failed to timely comply with the trialcourt's order to respond to discovery, there is nothing in therecord that exhibits a deliberate or contumacious disregard forthe court's authority. Thus, the reasons for and the basis of thetrial court's imposition of such an onerous sanction are unclear. Without evidence of the proscribed conduct, the entry of an orderof a default judgment against defendants was not a sanctionproportionate to defendants' violation of the discovery process. Under these circumstances, the trial court's denial of the motionto vacate the default judgment order was an abuse of discretion.

We note that by this ruling we are not condoning defendants'conduct. We are aware that arbitration is designed to expeditethe hearing process without prolonging discovery. However, thisdoes not mean that defendants must lose their right to their dayin court by such a drastic sanction when defendants had no noticeof any motion seeking the relief granted by the trial court andthere is no evidence of a deliberate, contumacious disregard ofthe court's discovery orders. Therefore, we conclude that thetrial court abused its discretion in entering a default judgmentagainst defendants and denying their motion to vacate. Accordingly, we need not address defendants' remainingcontentions.

The judgment of the circuit court of Winnebago County isreversed, and the cause is remanded.

Reversed and remanded.

HUTCHINSON, P.J., and GEIGER, J., concur.