First Division December 4, 2006
1-05-3539
ELVIN GONZALEZ and ANA GONZALEZ, ) ) Appeal from Plaintiffs-Appellants, ) the Circuit Court ) of Cook County v. ) ) 03 M1 142997 NISSAN NORTH AMERICA, INC., and HAWKINSON NISSAN, ) L.L.C., ) Honorable ) Raymond Funderburk, Defendants-Appellees. ) Judge Presiding
PRESIDING JUSTICE McBRIDE delivered the opinion of the court:
Plaintiffs appeal from an order of the circuit court of Cook County dismissing their action
with prejudice as a sanction pursuant to Supreme Court Rules 137 and 219. 155 Ill. 2d. R. 137;
166 Ill. 2d R. 219. Plaintiffs contend their attempt to refresh a trial witness’ recollection with a
document which plaintiffs did not disclose to defendants during discovery was not a violation of
the discovery rules or an order in limine barring use of undisclosed documents at trial and that,
even if plaintiffs’ conduct was improper, it did not warrant such an extreme sanction.
Before addressing the arguments on appeal, we note numerous omissions in plaintiffs’
opening brief and the record on appeal. For instance, introductory sections of plaintiffs’ brief,
which are mandated by Supreme Court Rule 341(e)(1) and entitled “Points and Authorities” and
“Issues Presented for Review,” indicate that plaintiffs addressed only the Rule 137 grounds for
the dismissal, thus conceding the propriety of the dismissal pursuant to the other rule cited by the
trial judge, Rule 219. 188 Ill. 2d R. 341(e); 155 Ill. 2d R. 137; 166 Ill. 2d R. 219. Further review
of the brief discloses plaintiffs actually addressed both bases for dismissal and that the 1-05-3539 introductory sections of the brief are simply incomplete. Nevertheless, the additional review also
reveals plaintiffs copied entire passages from the trial transcripts and that the quotations take up
10 full pages of the brief. This briefing style is cumbersome and violates the provision in
Supreme Court Rule 341(e) that an appellant is to state only “the facts necessary to an
understanding of the case *** with appropriate references to the pages on appeal,” and that
“[e]vidence shall not be copied at length, but reference shall be made to the pages of the record
on appeal *** where evidence may be found.” 188 Ill. 2d R. 341(e)(6), (e)(7). Moreover, the
brief relies heavily on a fact that is not supported by citation to the record, specifically that the
document which plaintiffs failed to disclose to defendants was authored by defendants and
therefore always in defendants’ possession. Along those same lines, but even more egregious, is
that plaintiffs never cite the page or pages of the record containing the sanction order on appeal
and we were unable to locate the order in the record or in the appendix to plaintiffs’ brief.
Supreme Court Rule 321 obligated plaintiffs to provide the order appealed from (155 Ill. 2d R.
321), Supreme Court Rule 329 authorized plaintiffs to subsequently correct “[m]aterial
omissions” from the record transmitted to the appellate court (134 Ill. 2d R. 329), Supreme Court
Rule 342 obligated plaintiffs to compile an appendix of “any pleadings or other materials from
the record which are the basis of the appeal or pertinent to it” (155 Ill. 2d R. 342), and Supreme
Court Rule 341(e)(7) obligated plaintiffs to cite “the pages of the record relied upon” for their
arguments (188 Ill. 2d R. 341(e)(7)). Plaintiffs state in their opening brief that the written
sanction order lacked specificity and defendants do not disagree with this characterization of the
order. A lack of detail, however, does not justify plaintiffs’ failure to provide a complete record,
2 1-05-3539 a complete brief, or basic supporting citation for their arguments. The brief writer’s failure to
follow the appellate rules makes it difficult to conduct our review. Given the deficient brief and
record, it would be within our discretion to affirm the sanction order without further comment.
Even so, we have read the transcripts of the three-day trial, determined they adequately convey
the conduct at issue, and decided to rule on the merits of the sanction.
Rule 137 provides that an attorney’s signature on a pleading, motion, or other paper is the
attorney’s certification that he or she has read the motion and
“that to the best of his knowledge, information, and belief formed
after reasonable inquiry it is well ground in fact and is warranted
by existing law or a good-fath argument for the extension,
modification, or reversal of existing law, and that it is not
interposed for any improper purpose, such as to harass or to cause
unnecessary delay or needless increase in the cost of litigation.”
155 Ill. 2d R. 137.
The rule authorizes the court, upon motion or upon its own initiative, to impose on a represented
party, an attorney, or both, “an appropriate sanction.” 134 Ill. 2d R. 137. The decision to impose
sanctions under Rule 137 is entrusted to the sound discretion of the trial court, is “afforded
considerable deference” on appeal, and will be overturned only where the appellate record
discloses an abuse of discretion. Technology Innovation Center, Inc. v. Advanced Multiuser
Technologies Corp., 315 Ill. App. 3d 238, 244, 732 N.E.2d 1129, 1134 (2000). An abuse of
discretion occurs where the trial court’s finding is against the manifest weight of the evidence or
3 1-05-3539 where no reasonable person would adopt the same view. Technology Innovation Center, 315 Ill.
App. 3d at 244, 732 N.E.2d at 1134. Accordingly, a reviewing court considers whether the
imposition of sanctions was informed, based on valid reasoning, and follows logically from the
facts. Technology Innovation Center, 315 Ill. App. 3d at 244, 732 N.E.2d at 1134.
Rule 219 addresses the consequences of refusing or failing to comply with discovery rules
or orders. Subsection c of the rule specifies that if a party:
“unreasonably fails to comply with [the discovery rules] or
fails to comply with any order entered under these rules, the court,
on motion, may enter, in addition to remedies elsewhere provided,
such orders as are just, including, among others, the following:
***
(iii) That the offending party be debarred from
maintaining any particular claim, counterclaim, third-party
complaint, or defense relating to that issue;
(iv) That a witness be barred from testifying
concerning that issue;
(v) That, as to claims or defenses asserted in any
pleading to which that issue is material, a judgment by default be
entered against the offending party or that the offending party’s
action be dismissed with or without prejudice[.]” 166 Ill. 2d R.
219(c).
4 1-05-3539 Further, “[i]n lieu of or in addition to the foregoing, the court, upon motion or upon its own
initiative, may impose upon the offending party or his or her attorney, or both, an appropriate
sanction, which may include *** a reasonable attorney fee, and when the misconduct is wilful, a
monetary penalty.” 166 Ill. 2d R. 219.
A sanction may be imposed regardless of whether omissions in discovery are intentional
or inadvertent. Boettcher v. Fournie Farms, Inc., 243 Ill. App. 3d 940, 948, 612 N.E.2d 969, 974
(1993).
“A trial court is vested with wide discretionary powers in pretrial discovery matters.”
Nehring v. First National Bank in DeKalb , 143 Ill. App. 3d 791, 796-97, 493 N.E.2d 1119, 1124
(1986). Nonetheless, even if a court has determined that a party has not reasonably complied
with discovery, and some sanctions are appropriate, the sanctions imposed must be just and
proportionate to the offense. Nehring, 143 Ill. App. 3d at 803, 493 N.E.2d at 1128.
“[A] just order imposing sanctions for failure to comply with
discovery is one which, to a degree possible, insures both discovery
and trial on the merits. [Citation.] The purpose of providing
sanctions for failure to comply with discovery rules is to promote
the flow of discovery and not to punish a dilatory or noncomplying
party. [Citation.]” Nehring, 143 Ill. App. 3d at 803, 493 N.E.2d at
1128.
“The Illinois courts have determined that dismissal with prejudice is: (1) a drastic punishment
which the courts are reluctant to impose [citation]; (2) to be employed only as a last resort in
5 1-05-3539 order to enforce the rule of discovery [citation]; [and] (3) an inappropriate sanction where a trial
*** can be had without hardship or prejudice [citations].” Nehring, 143 Ill. App. 3d at 803, 493
N.E.2d at 1128. A dismissal with prejudice is so drastic a sanction that it should be employed
only when a party has shown a “deliberate and contumacious disregard for the court’s authority”
(Sander v. Dow Chemical Co., 168 Ill. 2d 48, 68, 651 N.E.2d 1071, 1081 (1995)) and all other
enforcement measures have failed. Sander, 166 Ill. 2d at 67, 651 N.E.2d at 1081.
“The purpose of imposing sanctions under Supreme Court Rule
219(c) is to compel cooperation rather than to dispose of litigation
as a means of punishing the noncomplying party. [Citation.] The
court may not invoke sanctions which are designed to impose
punishment rather than to achieve or effect the objects of
discovery. [Citations.] *** [A] sanction for noncompliance with
discovery rules or orders under Rule 219(c) should be set aside
when a trial on the merits may be held without visiting hardship or
prejudice on the parties. [Citation.]” Cedric Spring & Associates,
Inc. v. N.E.I. Corp., 81 Ill. App. 3d 1031, 1035, 402 N.E.2d 352,
356 (1980).
“The determination of an appropriate sanction is circumstance specific.” Smith v. City of
Chicago, 299 Ill. App. 3d 1048, 1052, 702 N.E.2d 274, 277 (1998) . “Consequently, the review
of such an order must necessarily focus upon the particular behavior of the offending party that
gave rise to the sanction and the effects that behavior had upon the adverse party.” Smith, 299 Ill.
App. 3d at 1052, 702 N.E.2d at 278. Thus, the general principle that a reviewing court may
6 1-05-3539 affirm an order on any basis apparent from the record does not apply to a Rule 219 sanction
order. Smith, 299 Ill. App. 3d at 1052, 702 N.E.2d at 277.
The record on appeal consists primarily of the parties’ pleadings and trial transcripts,
which disclose the following relevant facts. On July 2, 2003, Elvin and Ana Gonzalez filed suit
against vehicle manufacturer Nissan North America, Inc., and vehicle dealer Hawkinson Nissan,
L.L.C. of Matteson, Illinois, regarding a 2002 Nissan Xterra sport utility vehicle that plaintiffs
purchased on June 17, 2002. Plaintiffs alleged the sport utility vehicle had an unremediated
defect that caused it to pull to the right during driving or braking. The complaint included claims
of breach of express and implied warranties, under the federal Magnuson-Moss Warranty --
Federal Trade Commission Improvement Act (15 U.S.C. §2301 et seq. (2000)) and consumer
revocation of acceptance of nonconforming goods, under the state codification of section 2-608
of the Uniform Commercial Code (810 ILCS 5/2-608 (West 2002)). Plaintiffs’ suit proceeded to
trial by jury on September 6, 2005. Before the presentation of evidence, the trial judge granted
defendants’ motion in limine “to bar plaintiffs from calling any witness not timely and properly
disclosed and barring plaintiffs from utilizing documents not properly disclosed.” Although
plaintiffs’ written motion in limine and the trial judge’s written order in limine were not included
in the record on appeal, various transcripts that were tendered for our review substantiate that the
trial judge made this ruling in limine.
On September 7, 2005, the second day of the trial, plaintiffs called their automotive
expert, Phillip J. Grismer, to the witness stand. The substance and scope of Grismer’s testimony
had been previously disclosed to defendants pursuant to Supreme Court Rule 213(f)(3). 177 Ill.
2d R. 213(f)(3). In relevant part, the rule requires a proponent to identify its controlled expert
7 1-05-3539 witnesses and to disclose “(i) the subject matter on which the witness will testify; (ii) the
conclusions and opinions of the witness and bases therefor, (iii) the qualifications of the witness;
and (iv) any reports prepared by the witness about the case.” Official Reports Advance Sheet
No. 8 (April 17, 2002), R. 213(g), eff. July, 1, 2002. Also relevant here is Supreme Court Rule
222 which, stated broadly, requires parties to disclose and produce the factual basis of their claim
or defense. 166 Ill. 2d R. 222. The rule expressly provides: “(g) Exclusion of Undisclosed
Evidence. In addition to any other sanction the court may impose, the court shall exclude at trial
any evidence offered by a party that was not timely disclosed as required by this rule, except by
leave of court for good cause shown.” 166 Ill. 2d R. 222(g).
Under plaintiffs’ direct examination, Grismer testified that in March 2004, he “visually
inspected” plaintiffs’ vehicle in a parking lot, measured the tread depth, condition, and air
pressure of the tires, and then took a test drive. After this “non-invasive inspection [where]
nothing was taken apart, [and] the vehicle was not hoisted,” Grismer concluded the Xterra had
“defective suspension geometry” which could be attributable to a bent or loose component or
“simply something that’s out of adjustment” and that this defect diminished the value of the
vehicle by 30% of the suggested retail price.
On cross-examination, Grismer was asked about the report about plaintiffs’ vehicle which
he prepared and plaintiffs tendered to defendants as part of plaintiffs’ supplemental Rule 222
disclosures. 166 Ill. 2d R. 222. In particular, Gismer was asked about the reference in his
narrative report to a “technical service bulletin” about Nissan vehicles. Technical service
bulletin “00-037B” consisted of a one-page exhibit attached to Grismer’s report. This document
indicated most United States roads are built with a “‘crown’” or higher elevation in the center to
8 1-05-3539 “help rain water drain from the road surface,” “vehicles have a natural tendency to drift to the
low side of the crown,” and vehicles are designed with “a small amount of counteracting left
pull.” Grismer testified that he obtained technical service bulletin 00-037B from an Internet site,
www.alldatapro.com; however, three or four additional pages of the bulletin were missing from
the exhibit in defense counsel’s hands. Defendants objected and a sidebar conference was had
outside the presence of the jury.
During the sidebar, defendants informed the court that the technical service bulletin
attached to Grismer’s report which plaintiffs produced during discovery consisted of only one
page. Defendants reminded the court of its order in limine barring any witness from utilizing or
referencing any document not seasonably produced, and asked the court to strike Grismer’s last
comment and admonish him outside the jury’s presence that documents which were subject to
the order in limine should not be utilized or referenced. Plaintiffs admitted they disclosed to
defendants only one page of the technical service bulletin Grismer was relying on, that “[t]he
following three pages were not [disclosed],” and that plaintiffs and Grismer realized the omission
the day before when they were going over Grismer’s testimony. Plaintiffs emphasized, however,
that the bulletin was brought up only during cross-examination by defendants, and plaintiffs
argued that they were not in violation of the order in limine because they had not asked Grismer
about the undisclosed document during direct examination and did not try to admit the multiple
pages into evidence. The trial judge responded that plaintiffs were under a duty to seasonably
supplement discovery, and although it would not have been timely, plaintiffs should have
nevertheless disclosed the missing pages immediately upon learning of their omission or at least
“this morning prior to the start of the [second day of] trial.” Further, “to simply not say anything
9 1-05-3539 about it and not seasonably supplement is a violation [of the discovery rules].” The judge asked
defendants to suggest a resolution to the problem and defendants proposed plaintiffs stipulate
only one page had been produced during discovery and the jury be instructed to disregard any
testimony indicating there were additional pages to the technical service bulletin. Plaintiffs
agreed and so stipulated, and when the judge and lawyers returned to the courtroom, the jury was
informed the technical service bulletin “contained only one page” and that Grismer’s reference to
multiple pages should be disregarded. When cross-examination resumed, Grismer testified
without further incident.
The next morning, September 7, 2005, plaintiffs resumed their case-in-chief with the
testimony of David J. Schend. Schend was employed as a “dealer technical specialist” by
defendant vehicle manufacturer Nissan North America, Inc., and his position required him to
travel to Nissan dealers in 12 or 13 midwestern states to assist technicians who were having
difficulty with certain repairs. Schend spent several hours inspecting plaintiffs’ Xterra for
defects. During direct examination, plaintiffs asked Schend if he was aware of any
technical service bulletins regarding plaintiffs’ vehicle and Schend responded that there were
numerous bulletins that “cover all sorts of systems and subsystems on the Nissan Xterra over a
number of different [model] years” and that he could not recall the details of any particular
bulletin. Plaintiffs asked if Schend was aware of a bulletin regarding any steering or pulling
condition and Schend responded that he was but could not recall the details of any particular
bulletin. In an attempt to refresh Schend’s recollection about the technical service bulletin
regarding Nissan vehicles’ steering, plaintiffs began showing Schend the documents that the
previous witness, Grismer, obtained from www.alldatapro.com, including the missing pages that
10 1-05-3539 plaintiffs were previously barred from “utilizing” at trial because those pages were not
seasonably disclosed during discovery. Before counsel could hand the exhibit to Schend,
defendants objected, and a sidebar conference was convened.
During the sidebar, plaintiffs argued that because Schend was “well aware of the
technical bulletin,” plaintiffs’ use of the document at trial could not cause “prejudice or surprise
whatsoever to any defendant in this case” and was not improper. The trial judge found, however,
that plaintiffs’ attempt to refresh Schend’s recollection with documents previously barred due to
their nondisclosure was “a very, very serious violation of discovery rules, [and] a very serious
violation of the Court’s prior ruling.” The trial judge reiterated that plaintiffs had an opportunity
before Grismer testified to tender the pages that had been omitted from previous disclosures, but
plaintiffs had not acted on that opportunity and had instead committed a discovery violation. In
addition, the trial judge found that plaintiffs’ subsequent attempt to use or actual use of the
stricken pages was a purposeful, wilful, and wanton violation of the court’s previous order. The
trial judge then dismissed plaintiffs’ complaint with prejudice as a sanction pursuant to Supreme
Court Rules 137 and 219. 155 Ill. 2d R. 137; 166 Ill. 2d R. 219. The judge and attorneys
returned to the courtroom, where the judge announced the disposition of the case and released the
jury.
This recitation of facts demonstrates that the dismissal order was improper. Rule 137,
quoted in relevant part above, concerns the filing of false and frivolous lawsuits (Sanchez v. City
of Chicago, 352 Ill. App. 3d 1015, 1020, 817 N.E.2d 1068, 1073 (2004)) or motions or other
paper (155 Ill. 2d R. 137), and is not applicable to this case. Rule 219, also quoted in relevant
part above, concerns “refusal” or “unreasonable fail[ure]” to comply with discovery or pretrial
11 1-05-3539 procedures (166 Ill. 2d R. 219), and is only indirectly applicable because the sanction at issue
was imposed primarily because of counsel’s misconduct on the third day of trial rather than
during the discovery phase of this litigation. In Day v. Schoreck, 31 Ill. App. 3d 851, 852, 334
N.E.2d 864, 865 (1975), this court indicated that Rule 219 is not a basis for sanctioning conduct
that occurs at trial. Even if counsel’s violation of the order in limine was a discovery violation
sanctionable under Rule 219(c), the sanction imposed was too harsh and was an abuse of
discretion. We reach this conclusion because the record does not indicate a lesser sanction was
ineffective, that the dismissal was entered only as a last resort, and that a trial on the merits was
no longer possible.
A Rule 219(c) penalty is expected to be proportionate to the gravity of the discovery
violation. Boettcher, 243 Ill. App. 3d at 947, 612 N.E.2d at 974. Here, plaintiffs gained little
benefit, if any, from their use of the multi-page exhibit. The transcripts show plaintiffs did not
rely on the offensive exhibit while examining their expert witness, Grismer. Instead, the
technical service bulletin was first mentioned during cross-examination by the defense. When
plaintiffs subsequently attempted to use the exhibit with Nissan’s employee, Schend, an
objection was made before the jury heard or saw anything about the exhibit. We do not mean to
suggest that plaintiffs’ counsel was adhering to the order in limine or that we condone his
courtroom conduct. We do, however, point out that plaintiffs’ use of the barred exhibit had
minimal impact on the jury members and that a lesser sanction was still possible. Dismissing the
action with prejudice not only negated Grismer’s and Schend’s testimony regarding the disclosed
page of the technical service bulletin, but also negated their unrelated testimony and the entire
testimony of the two plaintiffs. The dismissal precluded a resolution on the merits of plaintiffs’
12 1-05-3539 allegations and the properly disclosed evidence. It is our opinion that a proportionate, effective
sanction in this instance could have included barring and striking all witness testimony regarding
the technical service bulletin (see, e.g., Betts v. Manville Personal Injury Settlement Trust, 225
Ill. App. 3d 882, 920, 588 N.E.2d 1193, 1278 (1992) (indicating expert witness should have been
precluded from testifying where his opinion was not timely disclosed)), and/or imposing a
monetary penalty on plaintiffs’ counsel. This type of sanction would have ensured that
defendants were not prejudiced by counsel’s conduct and emphasized to plaintiffs that discovery
is “a serious phase of litigation” worthy of counsel’s “careful attention.” Fine Art Distributors
v. Hilton Hotel Corp., 89 Ill. App. 3d 881, 884, 412 N.E.2d 608, 610 (1980).
Walton v. Throgmorton, 273 Ill. App. 3d 353, 652 N.E.2d 803 (1995), was a will contest
which the trial dismissed with prejudice as a discovery sanction when the plaintiff’s counsel
failed to appear at a hearing. The appellate court reversed the sanction in part because there was
“nothing in the record to indicate that the court notified [counsel] *** that such a strong sanction
would be imposed by his failure to appear.” Walton, 273 Ill. App. 3d at 359, 652 N.E.2d at 807.
The court emphasized, “Dismissal with prejudice for abuse of the discovery process is the most
severe sanction available to the court and is to be employed only as a last resort, and only in
those cases where the actions of a party show a deliberate, contumacious, or unwarranted
disregard of the court’s authority.” Walton, 273 Ill. App. 3d at 359, 652 N.E.2d at 807. The
court reasoned that “without some notice to [counsel] that a dismissal was imminent, we cannot
find that the dismissal was used only as a last resort.” Walton, 273 Ill. App. 3d at 359, 652
N.E.2d at 807. Similarly, here, there is no indication that counsel was warned that certain
conduct could result in the imposition of the most severe sanction possible to his clients. In fact,
13 1-05-3539 the trial transcripts suggest that plaintiffs’ counsel was caught off guard. The transcripts disclose
that when plaintiffs’ counsel started to show the multipage technical service bulletin to the
Nissan witness, the defense objected and the judge and attorneys convened in chambers, outside
the jury’s hearing for a sidebar conference. There was apparently a slight lag between the
objection and the beginning of the sidebar conference, because when the conference started,
defense counsel stated: “As we were headed back to chambers, plaintiffs’ counsel indicated to
me he was just going to withdraw [the exhibit] and not go any further with this. So if that’s the
case, then I don’t think we need to go *** any further.” However, plaintiffs’ attorney responded,
“Well, your Honor, we’re here now,” and proceeded to argue that his use of the complete
technical service bulletin was not improper. The conference concluded with the dismissal of
plaintiffs’ lawsuit. We do not believe plaintiffs’ counsel would have proceeded to argument if he
had known a potential outcome was the dismissal of his entire case. Again, we do not mean to
suggest that counsel’s conduct was proper or condoned by this court. We do, however, find that
the transcript suggests counsel was surprised by the dismissal. Absent some indication in the
record that counsel was on notice that dismissal was imminent, we cannot find that the ultimate
sanction was imposed as a last resort.
Finally, this court stated the following regarding Illinois’ public policy of resolving
complaints on their merits and the extreme nature of dismissing an action with prejudice, in
Smith v. City of Chicago, 299 Ill. App. 3d 1048, 702 N.E.2d 274 (1998):
"The underlying spirit of our system of civil justice is that
controversies should be determined according to the substantive
rights of the parties. This notion is not only intuitive -- it is the
14 1-05-3539 articulated public policy of the state. See 735 ILCS 5/1-106 (West
1996). Dismissal of an action or the entry of an order of default
may be an appropriate sanction for a party's refusal to obey a valid
court order. However, such a drastic sanction, being the antithesis
of a determination of a cause on its merits, should be employed
only as a last resort after all other enforcement powers at the court's
disposal fail. When, as in this case, sanctions are visited upon a
party as vicarious punishment for the acts of her counsel, care must
be taken in fashioning a sanction that both adequately addresses the
offending conduct and, to the extent possible, preserves the right of
the party to be heard on the merits of her case." Smith, 299 Ill.
App. 3d at 1054-55, 702 N.E.2d at 279.
The dismissal in this case is inconsistent with the public policy of this jurisdiction.
Because the dismissal was disproportionate to plaintiffs’ misconduct and came without
warning, it was an unjust sanction. A lesser sanction would have been effective and yet adhered
to Illinois’ policy of resolving disputes on their merits. Accordingly, we reverse the dismissal
order and remand the cause for further proceedings with a different circuit court judge, which
may include a trial on the merits. Because discovery has closed, any further proceedings are to
be conducted without the use of the entire multipage exhibit. Plaintiffs disclosed only the first
page of the technical service bulletin and are limited to using that single page on remand.
Reversed and remanded.
GARCIA and GORDON, R., JJ., concur.