Stoyanov v. Himont Law Group, Ltd.

2024 IL App (1st) 221434-U

• Court: Appellate Court of Illinois
• Decided: April 15, 2024
• Docket: 1-22-1434
• Status: Unpublished

Opinion

2024 IL App (1st) 221434-U FIRST DISTRICT, FIRST DIVISION April 15, 2024

No. 1-22-1434

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). _____________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT _____________________________________________________________________________

IAVOR STOYANOV, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County, Illinois. v. ) ) No. 19 L 1963 HIMONT LAW GROUP, LTD. and AL HAROON ) HUSAIN, ) Honorable ) Patrick J. Sherlock, Defendants-Appellants. ) Judge Presiding. _____________________________________________________________________________

JUSTICE COGHLAN delivered the judgment of the court. Justices Lavin and Pucinski concurred in the judgment.

ORDER

¶1 Held: Trial court acted within its discretion in sanctioning party for repeatedly fabricating expert witness disclosures.

¶2 Plaintiff Iavor Stoyanov filed a professional negligence action against his former counsel

Al-Haroon Husain and Husain’s law firm, Himont Law Group. Following discovery, the trial

court found that defendants, on three separate occasions, fabricated their expert witness

disclosures “from whole cloth.” Pursuant to Rule 219(c) (Ill. S. Ct. R. 219(c) (eff. July 1, 2002)), No. 1-22-1434

the trial court struck defendants’ answer to the complaint and entered a default judgment against

defendants on the issue of liability. For the reasons that follow, we affirm.

¶3 BACKGROUND

¶4 On February 22, 2019, plaintiff filed a professional negligence action against defendants.

Plaintiff alleged that he retained Husain in 2010 and “used defendants as his primary lawyer for

several years.” In 2012, Husain asked plaintiff to invest in a company known as Credit Union

Mortgage Utility Banc, Inc. (CUMU). Plaintiff sought Husain’s “assistance and counsel” in

structuring the transaction. Husain proposed that plaintiff deposit money into Husain’s attorney

trust account to be held in escrow for the purchase of CUMU shares, pending a valuation of the

company and drafting of corporate documentation. Husain explained that “by depositing the

money in his trust account, the money would be protected.” Plaintiff deposited $400,000 with

defendants, which defendants allegedly misappropriated. As of July 2021, plaintiff had not

received any shares in CUMU, and defendants refused to return his $400,000. Plaintiff filed an

action against defendants for professional negligence, breach of fiduciary duty, conversion, and

spoliation of evidence.

¶5 Defendants’ Rule 213(f)(3) Disclosures

¶6 On November 4, 2020, defendants disclosed Mary Robinson as an expert witness

pursuant to Rule 213(f)(3) (the Robinson Disclosure). Defendants stated that Robinson “will

testify that, based on Illinois Supreme Court Rules, and IARDC regulations, that Defendant did

not commit any legal malpractice.”

¶7 Discovery closed on September 30, 2021. On November 10, 2021, plaintiff moved to bar

Robinson from testifying, alleging that “[d]efendants did not actually retain Ms. Robinson or

even contact her about this case.” In support, plaintiff attached an email from his counsel to

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Robinson, dated September 23, 2021, stating: “Our office spoke with you a while ago regarding

Mr. Husain’s alleged retention of you as an expert witness in this matter. You informed us that

this was not true and that no one had contacted you. I am emailing to inquire whether this is still

the case.” Robinson replied: “It remains the case that I have not been retained as an expert

witness in Stoyanov v. Husain.”

¶8 On February 8, 2022, the trial court struck the Robinson Disclosure, finding that it was

“woefully inadequate” and that it was unclear whether defendants ever retained Robinson as an

expert. Defendants were given until February 21, 2022 to supplement their disclosures, which

was later extended to March 8, 2022.

¶9 On March 8, 2022, defendants disclosed Michael Favia as their new Rule 213(f)(3)

expert. In the Favia Disclosure, defendants attested that Favia had reviewed a lengthy list of

documents pertaining to the case, including the complaint, the answer, defendants’ exhibits and

document production, and plaintiffs’ interrogatory answers. Defendants further attested that

Favia had reached certain opinions and conclusions to a reasonable degree of legal certainty,

including that defendants did not breach their duty of professional care to plaintiff, as they were

not acting as plaintiff’s counsel “in the matter of CUMU,” and did not fail to properly preserve

records relating to the case.

¶ 10 On March 15, 2022, plaintiff filed an emergency motion to strike the Favia Disclosure. In

response to the issuance of a subpoena, Favia’s office had contacted plaintiff and told him that

Favia had not been retained or received any documents. Defendant had contacted Favia about

being retained as an expert, but “that was it.” Plaintiff alleged that defendants had sent him “on a

wild goose chase” for a second time “by lying on their disclosure and identifying an ‘expert’ that

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has not been retained.” Plaintiff requested that the court bar defendants from presenting any Rule

213(f)(3) witnesses and impose sanctions pursuant to Supreme Court Rules 137 and 219(c).

¶ 11 Defendants responded that Favia had initially agreed to be their expert witness but later

“excused himself from the matter.” Within 48 hours of learning of this, defendants retained a

new expert witness, Michael Raiz. On March 23, 2022, defendants filed a second amended Rule

213(f)(3) disclosure (the Raiz Disclosure) reflecting that Raiz had reviewed the same documents

and reached the same conclusions as Favia.

¶ 12 Evidentiary Hearing

¶ 13 At the March 22, 2022 evidentiary hearing on plaintiff’s motion for sanctions, the court

heard testimony from Robinson, Favia, Raiz, Husain’s co-counsel James Pittacora, and Husain.

Although the parties did not have a court reporter at the hearing, the testimony of the witnesses is

summarized in the court’s March 29, 2022 written order.

¶ 14 Robinson testified that “she never spoke with either defendants or their counsel about

offering expert testimony in the case, did not review any documents, has formed no opinions and

defendants never retained her to offer opinions in this case.”

¶ 15 Favia testified that he spoke with defendants about offering expert testimony, but he did

not review any documents or form any opinions or conclusions about the case. Favia first learned

that defendants had disclosed him as an expert witness upon receiving a subpoena from

plaintiff’s counsel requesting his file.

¶ 16 Raiz testified that he had spoken with defendants about being an expert in the case and “if

given time he would be able to offer opinion testimony.” Defendants’ disclosure stated that Raiz

had “reviewed a laundry list of pleadings” and reached “13 specific opinions and conclusions.”

Raiz clarified that he only “reviewed 5 documents and a string of emails, *** not defendants’

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entire document production,” and never formed any “opinions or conclusions in this case.” Raiz

also admitted that “the Raiz Disclosures were not his disclosures and he did not even see the

disclosures until shortly before his testimony.” Raiz emphasized that the opinions in the Raiz

Disclosure “are not my opinions.”

¶ 17 Pittacora, Husain’s co-counsel, signed the interrogatory answers disclosing Robinson as

defendants’ expert, but admitted that he “had never spoken with Robinson” and “relied upon

Husain’s prior work product” in answering the interrogatory. Husain was the primary “point of

contact” with Favia and Raiz, and it was Husain, not Pittacora, who signed the Favia and Raiz

Disclosures. Pittacora also admitted that he did not “check on *** Husain’s work.”

¶ 18 Husain testified that he spoke with Robinson and she agreed to give opinions in the case.

No corroborating evidence (e.g., emails, telephone call logs, notes, or draft reports) supported

Husain’s testimony, which was “flatly contradicted” by Robinson’s “credible testimony.” Husain

also testified that he spoke with Favia, who agreed to give opinions on the case. He initially

stated he hand-delivered case documents to Favia, but then “backed off” this assertion, claiming

instead he had emailed Favia the documents.

¶ 19 Husain’s testimony that Raiz agreed to give opinions in the case was impeached by other

evidence. On March 15, 2022, at 1:42 p.m., defendants emailed the Raiz Disclosure to plaintiff.

The Raiz Disclosure was signed by Husain and identified Raiz as defendants’ expert witness.

Later that day, at 2:33 p.m., Raiz sent Husain an email asking if he had sent the case documents

yet. Husain replied that he had not. On March 16, Raiz emailed Husain stating that he needed the

documents “before [he could] fully commit.” Shortly thereafter, Husain sent some unidentified

documents to Raiz. Husain ultimately “admitted that Raiz never stated that the Raiz Disclosures

were, in fact, his opinions.”

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¶ 20 On March 29, 2022, the trial court issued a written order finding that “Husain’s testimony

was, in a word, nonsense.” Concluding that defendants’ conduct was “an abuse of the discovery

process,” the court explained that “[t]his is not a situation where Husain simply misstated the

opinion of an expert who agreed to testify. Husain made up the disclosures from whole cloth—3

times!” The court found that Husain “ ‘does not have a firm grasp of his obligation to be truthful

with the Court’ ” (quoting In re Husain, 533 B.R. 658, 699 (Bankr. N.D. Ill. 2015)) and acted

“outrageous[ly]” in “fabricat[ing] evidence to support his case.” “Pursuant to Supreme Court

Rule 137 and Supreme Court Rule 219(c),” the court barred defendants’ Rule 213(f)(3)

witnesses, allowed plaintiff to file a petition for the attorney fees expended in “having to address

the repeated false disclosures of expert witnesses,” struck defendants’ answer, and entered

judgment on the issue of liability in favor of plaintiff and against defendants.

¶ 21 The trial court subsequently granted plaintiff’s motion for summary judgment on the

issue of damages in the amount of $400,000, plus $160,219.18 in prejudgment interest. Plaintiff

also filed a petition seeking $33,247.60 in attorney fees. The court awarded fees in the reduced

amount of $23,831.05.

¶ 22 ANALYSIS

¶ 23 On appeal, defendants argue that their conduct, which they characterize as an “error in

presentation,” does not “rise to the level of sanctionability.” In the alternative, they argue that the

sanctions imposed by the trial court were excessive.

¶ 24 As previously noted, the record contains no transcript of the hearing on plaintiff’s motion

for sanctions. It is well established that appellants have the burden of presenting a sufficiently

complete record to support their claims of error on appeal (Webster v. Hartman, 195 Ill. 2d 426,

432 (2001) (citing Foutch v. O’Bryant, 99 Ill. 2d 389, 391-92 (1984))), and “any doubt arising

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from an insufficiency in the record will be resolved in the appellee’s favor” (McGee v. State

Farm Fire & Casualty Co., 315 Ill. App. 3d 673, 679 (2000)). Because the trial court

summarized the hearing testimony in its written order, the record is sufficient to address

defendants’ claims on appeal. See Marx Transport, Inc. v. Air Express International Corp., 379

Ill. App. 3d 849, 853 (2008).

¶ 25 The trial court imposed sanctions “[p]ursuant to Supreme Court Rule 137 and Supreme

Court Rule 219(c).” However, defendants have forfeited any argument regarding the propriety of

Rule 137 sanctions by failing to raise the issue in their appellate brief. Ill. S. Ct. R. 341(h)(7)

(eff. Oct 1, 2020) (“Points not argued are forfeited and shall not be raised in the reply brief, in

oral argument, or on petition for rehearing.”).

¶ 26 Rule 219(c) provides that if any party “unreasonably fails to comply” with the court’s

discovery orders, the court may enter “such orders as are just,” including “[t]hat any portion of

the offending party’s pleadings relating to that issue be stricken and, if thereby made appropriate,

judgment be entered as to that issue.” Ill. S. Ct. R. 219(c) (eff. July 1, 2002). Reversal of a

decision to impose sanctions under Rule 219(c) “is only justified when the record establishes a

clear abuse of discretion.” Shimanovsky v. General Motors Corp., 181 Ill. 2d 112, 123 (1998). A

default judgment is “a drastic sanction to be invoked only in those cases where the party’s

actions show a deliberate, contumacious or unwarranted disregard of the court’s authority.” Id.

¶ 27 Defendants argue that sanctions were not warranted because they did not “unreasonably

fail[] to comply” (Ill. S. Ct. R. 219(c) (eff. July 1, 2002)) with any court order. They allege they

“rigorously complied” with the court’s order to disclose an expert witness and “did not intend to

make any incorrect claims,” but the trial court “misconstrued [their] draft[ing] errors as

intentional.”

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¶ 28 Rule 213(f)(3) (eff. Jan. 1, 2018) provides that, upon written interrogatory, a party must

identify their controlled expert witnesses and state “(i) the subject matter on which the witness

will testify; (ii) the conclusions and opinions of the witness and the bases therefor; (iii) the

qualifications of the witness; and (iv) any reports prepared by the witness about the case.” Our

supreme court has emphasized that “[w]here a party fails to comply with the provisions of Rule

213, a court should not hesitate [in] sanctioning the party, as Rule 213 demands strict

compliance.” (Internal quotation marks omitted.) Sullivan v. Edward Hospital, 209 Ill. 2d 100,

109 (2004).

¶ 29 The record amply supports the trial court’s finding that defendants violated Rule

213(f)(3) on three separate occasions by fabricating opinions from Robinson, Favia, and Raiz.

All three experts testified that the opinions attributed to them in the disclosures were not their

opinions. Robinson never even spoke with defendants about offering opinions in the case. Favia

was not retained or aware he had been disclosed as an expert until receiving a subpoena from

plaintiff’s counsel. Raiz testified that the opinions set forth in the Raiz Disclosure were “not [his]

opinions.”

¶ 30 The trial court rejected Husain’s testimony that the errors in defendants’ disclosures were

not intentional. Because the trial court “is in a superior position to observe witnesses, judge their

credibility, and determine the weight their testimony should receive,” we give “great deference”

to the trial court’s credibility determinations. Vician v. Vician, 2016 IL App (2d) 160022, ¶¶ 27,

29. In their appellate brief, defendants admit that their Rule 213(f)(3) disclosures contain “the

likely opinions of the expert[s].” At the time they submitted their Rule 213(f)(3) disclosures,

defendants were obviously aware that their experts had not reached the opinions disclosed

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therein. In the words of the trial court, “[t]his is not a situation where Husain simply misstated

the opinion of an expert who agreed to testify. Husain made up the disclosures *** 3 times!”

¶ 31 In determining an appropriate sanction to impose for a Rule 219 violation, the court must

consider: “(1) the surprise to the adverse party; (2) the prejudicial effect of the proffered

testimony or evidence; (3) the nature of the testimony or evidence; (4) the diligence of the

adverse party in seeking discovery; (5) the timeliness of the adverse party’s objection to the

testimony or evidence; and (6) the good faith of the party offering the testimony or evidence.”

Shimanovsky, 181 Ill. 2d at 124. A sanction that results in a default judgment is a drastic one “to

be invoked only in those cases where the party’s actions show a deliberate, contumacious or

unwarranted disregard of the court’s authority.” Id. at 123.

¶ 32 Applying these factors to the instant case, we find that they weigh against defendants.

First and foremost, defendants acted in bad faith in a manner that displayed “a deliberate,

contumacious or unwarranted disregard of the court’s authority.” Id. After their fabrication of

Robinson’s opinions was brought to the attention of the court, defendants blatantly fabricated

two more expert witness disclosures in identical fashion. As the trial court aptly observed,

Husain “ ‘does not have a firm grasp of his obligation to be truthful with the Court’ ” (quoting

Husain, 533 B.R. at 699) and acted “outrageous[ly]” in “fabricat[ing] evidence to support his

case.”

¶ 33 Regarding the nature of the testimony or evidence, “[e]xpert testimony is usually required

in a case of professional negligence” to establish the standard of care and the professional’s

deviation from that standard. Jones v. Chicago HMO Ltd. of Illinois, 191 Ill. 2d 278, 295 (2000).

As discussed in plaintiff’s brief, “[w]ith no expert, [d]efendants would have been unable to

contradict [p]laintiff’s expert witness’ opinions and conclusions and a motion for summary

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judgment would have been filed long ago.” Moreover, as reflected in the trial court’s order,

plaintiff expended considerable time and effort addressing “the repeated false disclosures of

expert witnesses.” See Olson v. Centers for Foot & Ankle Surgery, Ltd., 2024 IL App (2d)

220380-U, ¶ 25 (finding prejudice under Shimanovsky where “[p]laintiffs’ failure to abide by the

court orders caused delay and expense to defendants in having to file another motion to enforce

already existing orders”).

¶ 34 As to plaintiff’s diligence and the timeliness of his objection, it is unclear when he first

became aware that the Robinson Disclosure was fabricated. However, plaintiff’s motion to strike

the Favia Disclosure and sanction defendants pursuant to Rule 219(c) was filed on the same day

plaintiff learned the disclosure was fabricated. The only factor arguably weighing in defendants’

favor is surprise to the adverse party, as plaintiff would have been pleasantly surprised to learn

that defendants’ experts did not actually hold opinions unfavorable to plaintiff. However, this

factor does not outweigh the other Shimanovsky factors, particularly that of defendants’ bad

faith.

¶ 35 In Sander v. Dow Chemical Co., 166 Ill. 2d 48, 67-68 (1995), our supreme court affirmed

the trial court’s dismissal of plaintiffs’ action as a Rule 219(c) sanction after plaintiffs violated

four court orders setting deadlines for the filing of an amended complaint and continued to

replead matters that had been stricken by court order. Id. at 69. Our supreme court explained:

“In determining an appropriate sanction, the trial judge must weigh the competing

interests of the parties’ rights to maintain a lawsuit against the necessity to accomplish

the objectives of discovery and promote the unimpeded flow of litigation. *** Where it

becomes apparent that a party has willfully disregarded the authority of the court, and

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such disregard is likely to continue, the interests of that party in the lawsuit must bow to

the interests of the opposing party.” Id. at 68-69.

Likewise, the sanction imposed in the instant case was warranted based on defendants’

“deliberate and continuing disregard for the court’s authority” (id. at 67).

¶ 36 Defendants’ reliance on Shimanovsky, 181 Ill. 2d at 124-26, and H & H Sand & Gravel

Haulers Co. v. Coyne Cylinder Co., 260 Ill. App. 3d 235 (1994), is misplaced. In Shimanovsky,

our supreme court held that dismissal of plaintiffs’ action was an unreasonable sanction for

plaintiffs’ destructive testing of allegedly defective power-steering components prior to the

commencement of the lawsuit, because the testing was done in good faith to determine if

plaintiffs had a viable cause of action. Shimanovsky, 181 Ill. 2d at 125-26. Similarly, in H & H,

260 Ill. App. 3d at 248, “[t]he evidence does not establish that the plaintiffs deliberately

destroyed relevant evidence harmful to their case,” because the relevance of the evidence at issue

did not become apparent until years later. Thus, a major factor in both cases was the good faith

of the parties, unlike the present case, where defendants repeatedly displayed a deliberate lack of

candor with opposing counsel and the court.

¶ 37 CONCLUSION

¶ 38 For the foregoing reasons, the judgment of the trial court is affirmed.

¶ 39 Affirmed.

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