Opinion
5-21-0410
04-10-2023
In re MARRIAGE OF CAROL A. DAVIS, Petitioner-Appellee, and WILLIAM D. DAVIS, Respondent-Appellant.
This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Williamson County. No. 14-D-131 Honorable Carey C. Gill, Judge, presiding.
JUSTICE WELCH delivered the judgment of the court. Justice Moore concurred in the judgment. Justice Cates dissented.
ORDER
WELCH JUSTICE.
¶ 1 Held: The order of the circuit court of Williamson County imposing discovery sanctions on the respondent by dismissing the respondent's petition to modify or terminate maintenance is hereby affirmed where the court's order was not entered sua sponte as it was in response to the petitioner's motion for sanctions, where the court's order did not lack the specificity required by Illinois Supreme Court Rule 219(c) (eff. July 1, 2002), where the court's discovery sanctions were not an abuse of discretion, and where the court's finding that the respondent's discovery conduct was sanctionable was not an abuse of discretion.
¶ 2 This is an appeal from the order of the circuit court of Williamson County imposing sanctions on the respondent in dismissing his petition to modify or terminate maintenance filed on June 18, 2019. The court imposed this sanction in response to the respondent's continued discovery violations over the course of more than two years of prelitigation proceedings. For the reasons that follow, we affirm.
¶ 3 I. BACKGROUND
¶ 4 On March 30, 2017, a judgment of dissolution of marriage was entered by the trial court dissolving the marriage between the petitioner, Carol Davis, and the respondent, William Davis. The respondent was ordered to pay the petitioner $350 each week in maintenance and was required to maintain a life insurance policy for $100,000 naming the petitioner as the sole beneficiary.
¶ 5 On June 18, 2019, the respondent filed a petition for modification or termination of maintenance. The petition alleged that the respondent retired from his position of owner-employee of D&C Sheet Metal, Inc., (D&C) effective April 29, 2019. As a result of his retirement, the petition further alleged that the respondent's earning capacity was impaired in that: (1) prior to retirement, he performed physical labor on the shop floor of D&C; (2) as he was now 65 years old, his physical condition no longer allowed him to work as he once did due to arthritis in his hands and knees, as well as a generalized stress disorder; (3) though he owned an interest in D&C, the company was not profitable; and (4) his retirement caused the company to replace him on the floor.
¶ 6 On July 24, 2019, the petitioner filed her reply to the petition denying the respondent's allegations. Specifically, she claimed that the respondent failed to inform the court that, prior to his retirement, when he was still doing physical work, he was the owner of the corporation and controlled the types of labors and activities that he performed. Also, despite his age, she denied that his physical condition no longer allowed him to work; and she denied that he no longer owned an interest in the business, and, if he had relinquished his ownership interest, it was to intentionally and fraudulently avoid his financial obligations to pay maintenance.
¶ 7 On August 8, 2019, the petitioner served the first discovery requests on the respondent. On September 13, 2019, the respondent filed a motion to strike the petitioner's answer to his petition pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 2018)) where it contained an improperly pled counterclaim. On October 10, 2019, the petitioner filed a response to the respondent's motion to strike seeking to amend her answer. On October 15, 2019, via docket entry, the trial court ruled:
"ATTY THOMPSON, ATTY KIBLER PRESENT. ATTY THOMPSON'S REQUEST TO AMEND INTERLINEATION IS GRANTED AND THAT PORTION OF PARAGRAPH 13(c) SHALL BE STRICKEN FROM THE ANSWER. PARAGRAPH 13(c) OF THE [A]NSWER SHALL NOW STATE: PETITIONER DENIES RESPONDENT NO LONGER OWNS A BUSINESS INTEREST. SET STATUS IN 45 DAYS PER COURT SCHEDULE. SEND NOTICE."
¶ 8 On December 10, 2019, the petitioner filed a motion to compel discovery responses with the trial court. On December 17, 2019, the court entered an order to compel discovery. On January 28, 2020, the court held a hearing and entered the following via docket entry: "ATTY THOMPSON PRESENT, ATTY KIBLER PRESENT. ATTY KIBLER HAS NOT COMPLIED WITH [ORDER] TO COMPEL. SET FOR STATUS IN 30 DAYS PER COURT SCHEDULE. SEND NOTICE." That same day, the petitioner filed a motion for sanctions against the respondent. The motion sought dismissal of the respondent's petition and asked the court to order the respondent to pay the petitioner's costs and fees accruing from the petitioner's attempts to procure the respondent's discovery responses.
¶ 9 On February 5, 2020, the respondent filed his objection to the motion for sanctions. The objection substantially argued that the motion for sanctions should be dismissed where the delays in discovery were due to the respondent's counsel, and not the respondent personally. Specifically, the respondent contended that:
"Respondent's counsel requested discovery from Respondent and Respondent provided responses to Respondent's counsel forthwith. However, Respondent's Counsel did not finalize responses until on or about January 27th for Respondent's review. In the meantime, Petitioner had submitted a motion and order to compel to the Court in December and the Court entered it on December 17th. On 1/28/2020 the parties appeared for a status conference and the undersigned Respondent's Counsel asked about the Court then entering the order to compel stating that discovery would be completed shortly. At that time the Court pointed out that the order had been entered in December. Counsel thereafter reviewed emails from December and found that Attorney Schafer's paralegal had emailed the signed order to undersigned counsel on 12/20/2019 but that the email was marked unread. Through inadvertence, Respondent's Counsel-not Respondent-failed to respond to the Court's Order to Compel. Subsequent to the status hearing on 1/28/2020, Respondent's Counsel that day met with Respondent and Respondent verified the discovery answers/production and Respondent's Counsel drafted and presented a proposed protective order to Petitioner by email. On 2/3/2020 Petitioner presented Petitioner with a signed agreed protective order. On 2/4/2020 Respondent served his discovery answers upon Petitioner's counsel in hand."
¶ 10 On February 6, 2020, the respondent's counsel filed a certificate of service regarding discovery. On March 10, 2020, the petitioner and her counsel appeared before the trial court. Neither the respondent nor his counsel was present at this hearing. The court found that some discovery had been provided but reserved its ruling on the motion for sanctions and request for attorney fees filed by the petitioner. The case was set for a status conference on April 28, 2020.
¶ 11 On June 18, 2020, the petitioner's counsel filed a proof of service/certificate of service; three returned subpoenas; and three notice of records depositions to Kemper CPA Group, LLC (Kemper), First Southern Bank, and Southern Illinois Healthcare Medical Group. Due to the COVID-19 pandemic, the case's status conference was reset and eventually held via remote hearing on June 23, 2020. The trial court noted in its docket that discovery remained ongoing at that time and that the parties were working to resolve the subpoena related issues.
¶ 12 On July 16, 2020, Kemper filed a motion to quash the subpoena. On July 29, 2020, the petitioner filed a response to the motion to quash. On August 25, 2020, the trial court held a remote status conference where substitute counsel appeared on behalf of Kemper and indicated an intention to file a reply to the response to the motion to quash. On October 13, 2020, the court held a remote hearing at which only the petitioner appeared, and the court found that there had been a prior representation by alleged substitute counsel for Kemper that substitute counsel would file a motion for substitution, but failed to do so. Therefore, the court denied the motion to quash. The court further ordered a response to the subpoena, subject to any prior protective order, and noted that counsel for the respondent could request to file said protective order under seal. On October 19, 2020, an agreed motion for substitution of attorney was filed and substitute counsel filed an amended motion to quash the subpoena. On October 27, 2020, the court entered an order granting the agreed motion to substitute counsel.
¶ 13 On March 16, 2021, the trial court held a remote hearing. Counsel for the respondent, the petitioner, and Kemper all appeared. The court heard argument from counsel for Kemper and the petitioner, but the respondent indicated no position. The court entered the following via docket entry:
"COURT NOTES AMENDED MOTION TO QUASH SUBPOENA IS THE PENDING PLEADING NOTICED FOR THIS DATE BY ATTY WOLF.
* * *
FURTHER ARGUMENTS HEARING.
THE RE-NOTICED/AMENDED MOTION TO QUASH, APPEARS TO BE ADDRESSING THE RULING ON THE ORIGINAL MOTION TO QUASH, HAS ATTACHED THE ORIGINAL MOTION TO QUASH.
THE ORIGINAL MOTION TO QUASH WAS DENIED ON 10/13/21.
ATTY WOLF APPEARS TO BE STATING HIS PLEADING SHOULD BE CONSTRUED IN THE NATURE OF A MOTION TO VACATE, BUT NOT A MOTION TO RECONSIDER, AND CITES NO AUTHORITY.
THIS COURT NOTES THAT THE ENTIRETY OF THE RE-NOTICED/AMENDED MOTION TO QUASH MAKES NO REFERENCE TO ANY AUTHORITY REGARDING VACATING PRIOR ORDERS, AND DOES NOT USE THE WORD VACATE ANYWHERE IN THE ENTIRE CCG DOCUMENT.
IN FACT, THE PRAYER FOR RELIEF IS INCONSISTENT WITH THE 'REQUEST' FOR RELIEF IN PARAGRAPH 4 OF THE BODY OF THE RE-NOTICED/AMENDED MOTION TO QUASH.
RE-NOTICED/AMENDED MOTION TO QUASH DENIED.
KEMPER CPA GROUP, LLC ORDERED TO RESPOND TO THE SUBPOENA BY 4/5/2021. COURT SHALL SET A REMOTE STATUS HEARING ON A REMOTE HEARING DATE, ON A MONDAY OR TUESDAY AFTERNOON PER COURT SCHEDULE.
ANY ASSERTED PRIVILEGES OR OBJECTIONS TO SUBPOENA REQUESTS MAY BE ADDRESSED AT THAT TIME IF PROPERLY NOTICED."
¶ 14 On May 3, 2021, the trial court held a status conference. Counsel for the petitioner and the respondent were both present. The court noted in its docket that, "DISCOVERY AND PRIVILEGE LOG [WAS] ADDRESSED." On May 11, 2021, an agreed protective order was entered and filed. On July 27, 2021, the court held another status conference where counsel for the petitioner and the respondent were both present. The court noted that there were still outstanding discovery issues and that the parties intended on filing pleadings to address those issues. The court ordered that all pleadings related to the outstanding discovery issues be filed within 30 days.
¶ 15 On August 24, 2021, the petitioner filed another motion to compel discovery responses where the discovery responses received by the petitioner were deficient. On September 20, 2021, the respondent filed his objection to the motion to compel.
¶ 16 On September 21, 2021, the trial court heard argument and entered the following order via docket entry:
"PARTIES MAY HAVE REACHED COMPROMISE ON DISCOVERY ISSUES.
COURT ACCEPTS CONTINUANCE THIS TIME, BUT NOTES DISCOVERY ISSUES HAVE BEEN ONGOING SINCE THE FIRST MOTION TO [COMPEL] FILED ON 12/10/2019.
COURT NOTES INTEREST OF JUSTICE REQUIRES RESOLUTION OF DISCOVERY ISSUES (EITHER BY AGREEMENT, OR BY HEARING AND COURT RULING)
RESET MOTION TO COMPEL AND MOTION FOR SANCTIONS FOR 1 HOUR IN PERSON HEARING.
THIS COURT NOTES IT 'RESERVED RULING' ON 3/10/21, BUT THERE DOES NOT APPEAR TO BE A FINDING MADE AND THE MOTION MAY NOT
HAVE BEEN FULLY HEARD. THEREFORE, COURT SHALL ADDRESS THAT MOTION, AS WELL.
ANY FURTHER DISCOVERY ISSUE MAY BE MOTIONED AND HEARD ON SAME DATE, CCG IF TIMELY MOTIONED."
¶ 17 On September 24, 2021, the petitioner filed a subpoena duces tecum. On October 18, 2021, the third-party deponent, D&C, filed a motion to quash the subpoena duces tecum. On October 21, 2021, the petitioner filed a motion for ruling on the third-party deponents', David Powless's, a certified public accountant for Kemper, and Kemper's, objections and claims of privilege.
¶ 18 On October 26, 2021, the trial court reviewed the filed motions and noted that "SEVERAL MOTIONS REGARDING DISCOVERY AND OTHER ISSUES HAVE BEEN FILED RECENTLY. THE COURT SHALL ADDRESS ALL MOTIONS AT NEXT MOTION HEARING DATE, BUT MAY OR MAY NOT HEAR ALL MOTIONS AT THAT TIME."
¶ 19 On November 16, 2021, the trial court held a hearing on the discovery issues. Counsel for the petitioner, the respondent and his counsel, counsel for D&C, and counsel for Kemper and Powless were all present. The court noted that the currently pending issues were: (1) the motion for sanctions filed by the petitioner on January 28, 2020, which the court reserved ruling on March 10, 2020; (2) the motion to compel filed August 24, 2021, which pleading raised the initial discovery request from August 8, 2019, and the subsequent issues related to the subpoenaed nonparty deponents; (3) D&C's motion to quash filed October 18, 2021; and (4) the motion for ruling on Powless and Kemper's group objection and claims of privilege filed October 21, 2021.
¶ 20 At the hearing, the trial court began by reviewing the procedural history of this case, dating back to the first discovery on August 8, 2019. The court then heard argument from all counsel that was present. Relevant to this appeal, the court heard argument on the motion for sanctions; and the respondent's counsel admitted that he was dilatory, the court should deny the motion for sanctions, and any such order should be directed at him. Following extensive argument, the court clarified that the case was still in the discovery stage and that the appropriate standard at the current point in the proceedings was whether something was relevant or likely to lead to relevant information. The court went on to say:
"But also, at some point, the delay is a problem. Courts are supposed to start with lesser sanctions, I guess you could say-lesser things-until the point is that it's just too egregious. It's too dilatory. And I find in this matter it is.
The delay is unfortunate. I appreciate that [the respondent's counsel] was busy and explained that to the court. And I appreciate [his] candor. But I also heard that during that time when [he] was unable to respond to other discovery that [he] said in either March or May [he] sent discovery out."
¶ 21 The trial court determined that the discovery delay exceeded what was appropriate, and it was substantial, dilatory, and egregious. Therefore, it granted the petitioner's outstanding motion for sanctions. Finding "the need for a serious and a significant sanction," the court granted the petitioner's request to dismiss the respondent's petition to modify or terminate maintenance filed June 18, 2019. The court also granted one hour of attorney fees at the rate of $310 per hour.
¶ 22 The trial court then made the following notes and findings via docket entry:
"SUBSTANTIAL AND LEGNTHY ARGUMENTS HEARD. COURT FINDS DISCOVERY VIOLATIONS &DELAY OF RESPONDENT ARE SUBSTANTIAL, DILATORY, AND EGREGIOUS.
COURT GRANTS MOTION FOR SANCTIONS, AND FINDS NEED FOR SERIOUS AND SIGNIFICANT SANCTION.
COURT GRANTS REQUEST FOR SANCTIONS OF DISMISSAL OF RESPONDENT'S PETITION TO MODIFY OR TERMINATE MAINTENANCE 6/18/2019 IS GRANTED.
COURT GRANTS REQUEST FOR SANCTIONS OF 1 HOUR OF ATTY FEES OF ATTY SCHAFER, IN AMOUNT OF $310.00."
The court further found all other issues moot and that the prior order of judgment of dissolution dated March 30, 2017, and the maintenance provision would stand as entered. The respondent appeals.
¶23 II. ANALYSIS
¶ 24 The respondent raises four issues on appeal: (1) whether the trial court's order for discovery sanction was entered sua sponte, thereby depriving the respondent of his constitutional due process rights; (2) whether the court's order entering discovery sanction lacked the specificity required by Illinois Supreme Court Rule 219(c) (eff. July 1, 2002); (3) whether the fact that the discovery sanctions entered by the court as a result of the respondent's counsel's discovery conduct was an abuse of discretion; and (4) whether the court's finding that the respondent's discovery conduct was sanctionable was an abuse of discretion.
¶ 25 As to the first issue raised by the respondent, we find this argument lacking where the trial court's order was in response to a motion filed by the petitioner which specifically sought the relief provided by the court, i.e., the dismissal of the respondent's petition to modify or terminate maintenance. This finding is supported by the fact that the respondent's counsel specifically argued during the November 16, 2021, hearing that the petitioner's motion for sanctions be denied. Though the respondent now argues that the court ruled sua sponte, he cites no authority in support of this argument, and we therefore find said argument unpersuasive.
¶ 26 As to the second argument raised by the respondent, the record establishes that the trial court did not violate Rule 219(c) in making its finding. Ill. S.Ct. R. 219(c) (eff. July 1, 2002). Rule 219(c) requires that "[w]here a sanction is imposed under this paragraph (c), the judge shall set forth with specificity the reasons and basis of any sanction so imposed either in the judgment order itself or in a separate written order." Id. The record establishes that the court found the discovery violations of the respondent to be substantial, dilatory, and egregious; therefore, we likewise find this argument unconvincing.
¶ 27 The third issue raised by the respondent asserts that the trial court abused its discretion in entering its discovery sanctions. The decision to impose a particular sanction under Rule 219(c) is within the court's discretion, and, thus, only a clear abuse of discretion justifies reversal. Shimanovsky v. General Motors Corp., 181 Ill.2d 112, 120 (1998). The court abuses its discretion only when its decision is arbitrary, fanciful, or unreasonable or where no reasonable person would take the view adopted. Seymour v. Collins, 2015 IL 118432, ¶ 41. Here, the record establishes that the court did not abuse its discretion in ordering sanctions where, after two years of discovery proceedings, it determined that the conduct of the respondent warranted severe sanctions.
¶ 28 Lastly, the fourth argument raised by the respondent fails where the trial court's finding that the respondent's conduct during discovery was sanctionable was not an abuse of discretion where the respondent's counsel admitted to dilatory conduct, where privilege was not properly asserted, and where the respondent and his counsel failed to adequately comply with discovery.
¶ 29 III. CONCLUSION
¶ 30 Therefore, based on the foregoing, the order of the trial court of Williamson County imposing discovery sanctions on the respondent is hereby affirmed.
¶ 31 Affirmed.
¶ 32 JUSTICE CATES, dissenting:
¶ 33 In my view, the trial court abused its discretion when it imposed the most severe sanction available-the dismissal of the respondent's petition to modify or terminate maintenance filed June 18, 2019. The trial court is vested with the responsibility of insuring that all litigants receive a fair determination of the case on the merits. Here, there was no opportunity for the respondent to receive his day-in-court. This was a miscarriage of justice. Therefore, I respectfully dissent.
¶ 34 Supreme Court Rule 219(c) authorizes a trial court to impose sanctions, including the dismissal of a cause of action, when a party unreasonably refuses to comply with the rules of discovery or any order entered pursuant to those rules. Ill. S.Ct. R. 219(c) (eff. July 1, 2002); Shimanovsky v. General Motors Corp., 181 Ill.2d 112, 120 (1998). The purpose of sanctions is to coerce compliance with discovery rules and orders; it is not to punish a dilatory party. Shimanovsky, 181 Ill.2d at 123. Although pleadings may be stricken for a failure to abide by discovery rules, this sanction is one of "last resort," and it should only be employed "after all the court's other enforcement powers have failed to advance the litigation." Shimanovsky, 181 Ill.2d at 123. Such a drastic action should not be invoked unless the noncomplying party demonstrates "a deliberate and contumacious disregard" of the court's authority. Cedric Spring &Associates, Inc. v. N.E.I. Corp., 81 Ill.App.3d 1031, 1035 (1980). The rules of discovery provide tools for the full and fair exchange of relevant information so that neither party is unfairly surprised. It is axiomatic in Illinois that in matters of discovery, the power vested in the trial court requires a careful exercise of its discretion in order to balance the needs of seeking the truth against the needless harassment of a party litigant. Accordingly, a just order of sanctions is one that insures both discovery and a trial on the merits. Shimanovsky, 181 Ill.2d at 123; Cedric Spring &Associates, 81 Ill.App.3d at 1035.
¶ 35 This case began with a petition to modify maintenance filed by the respondent in June 2019. It was quickly bogged down by discovery disputes-initially between the petitioner and the respondent, and then between the petitioner and third parties. On December 10, 2019, the petitioner filed a motion to compel the respondent to answer interrogatories and produce financial records. On December 17, 2019, the court entered an order compelling the respondent to reply to the discovery requests. A status hearing was scheduled for January 28, 2020. On that date, the petitioner filed a motion for sanctions. In the motion, the petitioner claimed that her counsel submitted interrogatories and a request for production to respondent's counsel which had gone unanswered. Respondent's counsel acknowledged the mistake. He explained that the delay in responding occurred because he had not seen the email containing the trial court's order directing the respondent to comply with the petitioner's discovery requests. The trial court found that respondent's counsel had not complied with the order to compel. The court entered an order requiring compliance, but did not rule on the petitioner's motion for sanctions. On February 4, 2020, within a few days after the sanctions motion was filed, the respondent hand-delivered the discovery responses to petitioner. The respondent also filed an objection to the motion for sanctions. The next status conference occurred on March 10, 2020. In a docket entry following that hearing, the court noted that some discovery had been provided. The court reserved ruling on the petitioner's motion for sanctions, and scheduled a status conference for April 28, 2020.
¶ 36 Subsequently, the petitioner began issuing deposition notices and subpoenas to third parties for a wide range of documents pertaining to respondent. The petitioner sought respondent's medical records, income tax returns, and financial documents from Southern Bank. The Kemper Group, who maintained the majority of the financial information sought by the petitioner, filed objections to the numerous document requests set forth in the subpoena. The dispute over these documents began on June 18, 2020, and remained unresolved when the trial court dismissed the respondent's petition on November 16, 2021. While the petitioner was battling with Kemper over obtaining the financial information, the petitioner's dispute with the respondent waned. The respondent was not asked for additional discovery until November 13, 2020-nine months after the initial exchange of discovery. On that date, the petitioner requested updated information, all of which was financial in nature. Some of the petitioner's requests asked for documentation from D &C Sheet Metal, Inc. (D &C), respondent's employer. Most of the information related to D &C was also held by Kemper and was the subject of the dispute between Kemper and the petitioner.
Petitioner also issued a subpoena duces tecum to Bank of America on October 6, 2020, and to D & C Sheet Metal, Inc. on September 24, 2021.
¶ 37 On May 13, 2021, six months after the petitioner asked the respondent to update his discovery, the petitioner sent a letter to the respondent, enclosing a copy of Kemper's privilege log. The petitioner asked the respondent to provide the financial information which Kemper had claimed was objectionable. The respondent did not reply to this letter. On August 24, 2021, the petitioner filed a motion to compel. In that motion, the petitioner sought to compel the Kemper financial information and other information from the respondent. The petitioner claimed that "respondent's wife controls the records for D &C Sheet Metal, Inc. and can easily provide the information requested to the parties." Alternatively, the petitioner asserted that Kemper had indicated that it would gather the documents for a fee of $145 per hour, but that she was unwilling or unable to pay those fees. The petitioner also asserted that the respondent had not fully complied with her original interrogatories and document requests. In response, the respondent provided additional documents to the petitioner by letter dated September 7, 2021. Respondent's counsel claimed he had given the petitioner all of the information that was in his possession. Counsel objected to providing the D &C documents because they were not in his possession. He noted that the petitioner had issued a separate subpoena duces tecum to D &C.
¶ 38 The petitioner's motion to compel was set for hearing on September 21, 2021. During the hearing, the parties indicated that they may have reached a compromise on discovery issues. The court continued the matter, but noted that the discovery disputes had been ongoing, and that a resolution of those issues was required in the interests of justice. A hearing on all pending matters was scheduled for November 16, 2021.
¶ 39 On October 21, 2021, the petitioner filed a motion for a ruling on Kemper's objections and claims of privilege. The petitioner argued that she needed all of the financial documents to litigate the respondent's petition to modify maintenance. The petitioner's motion was set for hearing along with other pending motions for discovery.
¶ 40 On November 16, 2021, the trial court held a hearing on all pending matters, including the objections related to the mounds of financial information that the petitioner had sought from Kemper and D &C. Instead of deciding the discovery issues related to the financial information, the trial court focused on the motion for sanctions that had been filed almost two years earlier. In doing so, the trial court lost sight of the effective use of its powers to enforce compliance with the rules of discovery. All of the parties and third parties were present for the hearing. The trial court was in the perfect position to resolve all of the objections to the requested financial information and to enforce compliance so that the respondent's petition to modify could be heard on the merits.
On October 29, 2021, the president of D & C filed a certificate of compliance indicating production of documents pursuant to the subpoena duces tecum.
¶ 41 The purpose for imposing a sanction "is to compel cooperation rather than to dispose of litigation as a means of punishing the noncomplying party." Cedric Spring &Associates, 81 Ill.App.3d at 1035. Instead of using its authority to compel cooperation, the trial court dismissed the respondent's petition without ruling on the disputes over financial documents. In imposing the drastic sanction of dismissal, the trial court found that the respondent engaged in "substantial, dilatory, and egregious" delay in providing discovery. While it was within the trial court's discretion to impose a "serious and significant sanction" for the discovery violations, there is no indication that the court considered a lesser sanction. For example, the trial court could have issued orders requiring Kemper to collect and turn over the information requested by the petitioner, and the respondent to pay Kemper's fee at a rate of $145 per hour, or no fee at all. The court also could have ordered the offending parties and third parties to pay substantial attorney fees to petitioner's counsel.
¶ 42 A thorough review of the record reveals that the objections to producing the financial information caused headaches for the petitioner and the trial court. There were missed court dates, delays, and substantial objections brought by the third parties as a result of petitioner's subpoenas. The frustration of the trial court is apparent from the record. That said, the trial court missed a golden opportunity to quiet the "noise" and work through the objections to discovery. Instead, the trial court dismissed the respondent's petition, thus quieting the objections by the third parties and ending the case without a resolution on the merits. In my view, there were other options if the trial court determined that sanctions were required. As noted previously, sanctions are not used to impose punishment. It bears repeating that a just order is one that, "to the degree possible, insures both discovery and a trial on the merits." Shimanovsky, 181 Ill.2d at 123; Cedric Spring &Associates, 81 Ill.App.3d at 1035.
¶ 43 In this case, the dismissal of the respondent's petition was a drastic sanction. It was imposed without attempting lesser enforcement measures that were available to the court. It was ordered without the requisite showing that the respondent exhibited a deliberate and contumacious disregard for the court's authority. "The underlying spirit of our system of civil justice is that controversies should be determined according to the substantive rights of the parties." See 735 ILCS 5/1-106 (West 2020); Gonzalez v. Nissan North America, Inc., 369 Ill.App.3d 460, 471 (2006) (quoting Smith v. City of Chicago, 299 Ill.App.3d 1048, 1054-55 (1998)). That underlying spirit was not preserved. The dismissal was disproportionate to the respondent's failure to comply, and it came without fair warning. The trial court did not attempt to enforce compliance through less drastic measures. The court abused its discretion by dismissing the respondent's petition. For those reasons, I would reverse the order of dismissal and remand the case for further proceedings. Accordingly, I respectfully dissent.