Lavaja v. Carter

505 N.E.2d 694, 153 Ill. App. 3d 317, 106 Ill. Dec. 147, 1987 Ill. App. LEXIS 2168
CourtAppellate Court of Illinois
DecidedMarch 10, 1987
Docket85-1037
StatusPublished
Cited by33 cases

This text of 505 N.E.2d 694 (Lavaja v. Carter) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lavaja v. Carter, 505 N.E.2d 694, 153 Ill. App. 3d 317, 106 Ill. Dec. 147, 1987 Ill. App. LEXIS 2168 (Ill. Ct. App. 1987).

Opinions

JUSTICE INGLIS

delivered the opinion of the court:

The defendant, Stephen House (defendant), appeals from the circuit court’s order striking his pleadings, both answer and counterclaim, and entering a default judgment against him because of his failure to comply with discovery rules and court orders. The underlying action was plaintiffs' suit to recover payments on a promissory note owed by defendant and Robert Carter (a codefendant not a party to this appeal).

On May 14, 1984, Anthony and Eleanor Lavaja (plaintiffs) filed a complaint alleging that “On December 15, 1982, for value received, Robert Carter and Stephen C. House, made, executed and delivered a Promissory Note dated December 15, 1982, promising therein to pay Plaintiffs the principal sum of $65,000.00 plus interest, as set forth therein, with a final payment of the unpaid principal and accrued interest on January 15, 1984.” They further alleged that after repeated demands, the defendants failed to make the final payment and are in default on the note. In a sworn affidavit, Anthony Lavaja stated that he negotiated the transaction in the office of Michael B. Wojnowski (Wojnowski), 880 North York Road, Elmhurst, Illinois. Wojnowski, in a sworn statement, stated that he witnessed the execution of the note on December 15, 1982, and that he had negotiated the note with the defendants and plaintiffs in his office.

On September 11, 1984, the plaintiffs were granted a substitution of attorneys. Dan Walker, Jr. (Walker), thereafter represented the plaintiffs. On May 31, 1985, Walker filed a notice to produce seeking, inter alia, statements, checks, checking accounts, corporate records, correspondence, promissory notes, and income tax records from defendant.

On June 14, 1985, defendant House was granted leave to file a third-party complaint against Wojnowski, alleging that Wojnowski fraudulently induced defendant to sign various promissory notes in blank in connection with a scheme that purportedly was directed toward purchasing a number of businesses, including the outstanding stock of Gallagher Textile Mills, Inc. Wojnowski was served with process and appeared before the court represented by Walker.

On October 29, 1985, defendant filed a motion to substitute his attorney which the court granted. His new attorney filed a memorandum in support of a motion to disqualify plaintiff’s counsel based on his contention that Walker was in conflict of interest in representing both the plaintiffs and the third-party defendant in the same action. At the hearing of October 31, 1985, plaintiffs’ counsel informed the trial court that defendant’s counsel was refusing to continue discovery. The following colloquy ensued:

“THE COURT: What kind of discovery is outstanding?
MR. WALKER: There have been interrogatories, two checking accounts. I have been to Mr. Kane’s office twice, and Mr. Marcham’s office one time to look at the documents. As I said, I have been there. I said, ‘This is not here. We will come back.’
MR. KANE: You have looked at all of the documents.
MR. WALKER: I have not. The answer to interrogatories indicates there are two other checking accounts which I have never seen, and I have pointed that out to you.
MR. KANE: We have produced all documents called for.
MR. WALKER: The last time I said I was going to come back to get all of the documents, he said, ‘We are going to file this motion to disqualify you, and we aren’t turning the documents over to you.’ ”

After an extended discussion by counsel as to what was and was not produced for the plaintiffs, the trial court ordered the defendant to produce all documents to the plaintiffs within the next seven days.

On November 7, 1985, the trial court heard arguments on the motion to disqualify Walker. Plaintiffs defended by arguing that “[s]ince the conflict of interest raised by defendant House does not involve the defendant ***, he has no standing to bring this motion.” They also argued that they were fully apprised of the situation and that they agreed to allow Walker to continue as their counsel as well as Wojnowski’s counsel. The trial court indicated it would disqualify Walker from representing both of the parties, but reserved entering the order to disqualify until the discovery had been completed. The basis of the disqualification was the trial court’s feeling that “such an unusual lack of financial sophistication [existed between the parties] that I would have to struggle pretty hard to be sure that [plaintiffs] fully understood the very basic and serious conflict of the interest in this situation.” The trial court granted plaintiffs 21 days to have substitute attorneys.

On November 27, 1985, plaintiffs, by their attorney Walker, petitioned the court to compel defendant to produce documents. Plaintiffs related that they had properly served notice to produce documents in May 1985; that their counsel had various discussions relative to the production of the documents listed therein; that the defendant agreed to produce all of the documents requested therein with the exception of certain documents pertaining to an investment held by defendant in Milwaukee; that plaintiffs made repeated attempts to have defendant produce these documents and, at the end of August, the documents were to be produced (as a result of an order by a judge sitting on a companion case); that when plaintiffs’ counsel went to review the documents, only part of them were made available; that plaintiffs’ counsel made two separate trips to Chicago to review the documents, and on each occasion the defendant did not produce all of the documents; that on October 31, 1985, the court entered an order requiring the defendant to produce the documents within seven days; these documents were still not forthcoming from the defendant; on November 7, 1985, the court again told defendant that he was to produce the documents, and defendant’s counsel advised this court that it would do so within a couple of days; on November 18, 1985, plaintiffs’ counsel advised the court that documents still had not been produced, and he sent a letter to defendant’s attorney; that the sum of these actions demonstrates that the defendant has violated the court’s orders, has broken oral promises made to the court, and has delayed these proceedings. Plaintiffs therefore requested the trial court to strike the pleadings of the defendant, hold him in default, and enter judgment accordingly.

On December 4, 1985, the trial court held a hearing on the status of the discovery of this case. Plaintiffs stated that as of that date, the defendant had still not produced all of the requisite documents. Defendant’s counsel stated that his client was in good-faith compliance with the spirit of discovery, and he complained that most of the documents which plaintiffs wanted had already been shown. He reassured the court he would make anything else available if needed. The trial court ruled that the defendant had violated its discovery orders and that discovery was still incomplete. Therefore, it struck the defendant’s pleadings and the counterclaim and entered a default judgment for the plaintiff.

On December 17, 1985, the trial court heard defendant’s motion to vacate the default judgment.

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Cite This Page — Counsel Stack

Bluebook (online)
505 N.E.2d 694, 153 Ill. App. 3d 317, 106 Ill. Dec. 147, 1987 Ill. App. LEXIS 2168, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lavaja-v-carter-illappct-1987.