Opinion
1-22-1346
09-29-2023
SARFARAZ KHAN, Plaintiff-Appellant, v. FUR KEEPS ANIMAL RESCUE, INC., Defendant-Appellee.
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 Cook County. No. 2017 CH 17190 The Honorable Michael Tully Mullen, Judge Presiding.
PRESIDING JUSTICE FITZGERALD SMITH delivered the judgment of the court. Justices Lavin and Pucinski concurred in the judgment.
ORDER
FITZGERALD SMITH, PRESIDING JUSTICE
HELD: Judgment affirmed where there was no support in the record for any of pro se plaintiff's alleged points of error on the part of the trial court, including failure to postpone long-set trial date, curtailment of inappropriate cross-examination, failure to vacate protective order, and failure to issue arrest warrants.
¶ 1 Upon this Court's partial reversal of the trial court's dismissal of plaintiff-appellant Sarfaraz Khan's (plaintiff) third amended complaint, this matter was remanded for further proceedings. Following a hearing, the trial court entered judgment in favor of defendant- appellee Fur Keeps Animal Rescue, Inc. (defendant). Plaintiff, pro se, appeals anew, this time presenting six issues for review. Essentially, he contends that the trial court erred in failing to push back the trial date and/or allow a continuance, unfairly curtailed his ability to ask questions during cross-examination, inappropriately denied his motion to reconsider a motion to vacate a protective order, and that it should have issued warrants for the arrests of defendant's witnesses. Among the many unique remedies he seeks, including that he be permitted to conduct a "one-time visitation"/"well-being check" on the cat at the center of this cause, plaintiff asks that we allow him to subpoena records from various people and entities and vacate a protective order. For its part, defendant, in addition to contending that this cause should be affirmed, asks this Court to grant sanctions and attorney's fees and costs against plaintiff for filing a frivolous appeal. For the following reasons, we affirm.
¶ 2 BACKGROUND
¶ 3 As noted, this cause has appeared in our Court before. Because the underlying facts and procedural posture are not in dispute, we begin by summarizing them here.
¶ 4 However, before turning to the operative complaint, we wish to note one relevant matter that took place during discovery. That is, defendant filed a motion in the trial court for a protective order, asking for its intervention involving plaintiff's conduct in this cause. As can be gleaned from the record, during this time, the trial court, as well as defendant's counsel, repeatedly (to put it mildly) informed plaintiff during discussions at court appearances and in litigation materials that his various (and vexatious) discovery requests, subpoenas and other personal communications he was attempting to have with defense counsel and (potential) witnesses were procedurally and legally improper and bordering on harassment. This culminated in defendant filing the motion for protective order, citing that its volunteers were fearful for their safety should their personal contact information be released to plaintiff. The trial court granted defendant's motion and issued a protective order in June 2018, governing the disclosure of documents and information pertaining to proprietary and confidential material. Pursuant to this order, in part, any requests for discoverable materials were required to be submitted to the trial court for evaluation and all material deemed confidential by the court was to be kept as such by the parties, even after termination of this cause.
¶ 5 Operatively, plaintiff filed his third amended complaint in July 2018, alleging two counts against defendant: count I for breach of an oral contract and count II for promissory estoppel. The basis for his complaint was that in May 2016, he "helped rescue a cat that was found by his home," along with assistance from his neighbor. The neighbor brought the cat to a veterinary hospital which, according to plaintiff, then "transferred [it] to [d]efendant," a private, non-profit animal shelter. He stated that he "rescued the cat for [d]efendant and expected to have an opportunity to adopt the cat when he turned the cat over to [d]efendant." Other than spending money on cat food to feed the cat before taking it to the hospital, plaintiff has never alleged that he paid any money to the hospital or defendant for its care or custody, or that he in any way objected to its transfer to the hospital or to defendant.
Plaintiff s subsequent testimony in this cause confirmed that he knew his neighbor was taking, and giving, the cat to the hospital, as she, like plaintiff, did not want to assume care of it.
Plaintiff is not, nor ever has been, an employee or volunteer working for defendant. His rescuing of the cat was never done in any other capacity than that of a private citizen.
¶ 6 Plaintiff further alleged in his complaint that he "developed a strong emotional connection with the cat and expressed [a] strong interest in adopting the animal when the cat became available for adoption." He averred that he expressed this interest to several of defendant's volunteers, and he insisted that they, in return, "promise[d]" him that he would be notified when the cat became available for adoption "so that he could adopt" it. Plaintiff recounted that he "continually checked on the status of the cat." He alleged, for example, that on June 2, 2016, he spoke to defendant's volunteer Donna Leetz, who "stated that she would call [him] to let him know when the cat" would be available for adoption, and that, on July 9, 2016, he went to defendant's place of business where he spoke to volunteer Gloria Divierto, who "shook [his] hand in agreement" that she would call him and let him know when the cat could be adopted.
From this, as well as from the record, it is undisputed that plaintiff never had (nor ever alleged) an ownership interest in the cat but, rather, only expressed a desire to become its owner sometime in the future. Also, there is evidence in the record that he ever filled out or completed the adoption application or any of the forms required by defendant to adopt any animal, including the cat at issue.
¶ 7 Plaintiff next alleged that on July 16, 2016, he "went to check on the cat" at a local PetSmart store where he encountered Divietro, who "insisted [h]e leave" the store "without giving the reason." He averred that he spoke to her again on December 9, 2017, over a year later, whereupon she allegedly told him defendant "would not allow [him] to adopt or foster any of their animals including the cat he helped rescue."
¶ 8 In count I of his third amended complaint, entitled "Breach of Oral Contract," plaintiff insisted that "[defendant's employees made oral promises to [him] that he would be notified when the cat he helped rescue was available for adoption so that he could adopt the animal," but that "he did not receive the opportunity to adopt the cat as promised because [defendant's employees failed to contact [him] as promised." In count II, entitled "Detrimental Reliance/Promissory Estoppel," he insisted that in "reliance" on defendant's "promise," he "developed an[] increasing emotion[al] attachment to the cat and expected phone calls from [defendant's employees to let him know when the cat" was available for adoption, which never came. His prayer for relief under both counts was the same: he asked the trial court to grant him the ability to adopt the cat he had rescued or, in the alternative, to grant him the ability to adopt a different cat from defendant.
¶ 9 Defendant moved to dismiss pursuant to sections 2-615 and 2-619 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615, 2-619 (West 2018)). Pursuant to section 2-615, it argued that plaintiff failed to state a claim for breach of contract because he did not allege facts demonstrating the necessary legal elements of a contract (specifically, consideration), and that he failed to state a claim for promissory estoppel because he alleged a promise to perform future acts without showing a duty to perform. Pursuant to section 2-619, it argued that plaintiff lacked standing to sue as he failed to allege an ownership interest in the cat, and that he had sued an incorrect party. The trial court granted defendant's motion to dismiss count I (breach of contract) pursuant to section 2-615, but denied its motion to dismiss count II (promissory estoppel) under that section and held an evidentiary hearing pursuant to section 2-619. Defendant's volunteers Leetz and Divietro, as well as its corporate representative (founder and president) Dr. Debra Rykoff, testified; plaintiff, who appeared pro se, cross-examined all the witnesses and also testified. In November 2018, at the conclusion of the hearing, the trial court dismissed plaintiff's remaining count, finding, based on the evidence and testimony, that he never informed any representative of defendant that he had an interest in adopting the cat, he was never promised anything by defendant nor any of its representatives, and he never relied on any such promise as no promise was made.
Defendant claimed that volunteer Leetz had facilitated a private adoption of the cat in her individual capacity, with which defendant was not involved.
¶ 10 Plaintiff appealed. In June 2021, a panel in a different division of this Court affirmed the trial court's section 2-615 dismissal of count I, but reversed its section 2-619 dismissal of count II. See Khan v. Fur Real Animal Rescue, Inc., 2021 IL App (1st) 182694, ¶ 47. It concluded that the trial court inappropriately dismissed plaintiff's promissory estoppel claim on the ground that no promise was made, a determination it "c[ould] not make under the facts and claims in this case" because its findings were not "properly the subject of a section 2-619 motion in the first place." Khan, 2021 IL App (1st) 182694, ¶ 44 (citing Reynolds v. Jimmy John's Enterprises, LLC, 2013 IL App (4th) 120139, ¶¶ 34, 39, and stating dismissal under section 2-619 "is permitted only on limited grounds, and it is not allowed if the claimed affirmative matter is merely a refutation of plaintiff's ultimate allegations"). Accordingly, the Court remanded this portion of the cause for further proceedings.
¶ 11 No action was taken upon remand until defendant, in October 2021, filed a "Motion to Clarify or for Other Relief' in the trial court. Defendant argued again that plaintiff had no standing to sue and, thus, the trial court's dismissal with prejudice had been appropriate pursuant to section 2-619. In the alternative, it argued that dismissal would nonetheless be appropriate pursuant to section 2-1005 of the Code (735 ILCS 5/2-1005 (West 2018)) within the context of summary judgment. Several weeks later, the trial court, observing that "due notice [had] been provided," issued a written order noting that plaintiff had failed to appear. It entered and continued defendant's motion and set a date for the parties to appear on November 12, 2021. It further specified there that if plaintiff failed to appear on that date, the matter would be dismissed for want of prosecution.
¶ 12 On November 12, 2021, plaintiff failed to appear. The trial court, again observing that "due notice [had] been provided," issued another written order, this time dismissing the matter for want of prosecution, as it had said it would.
¶ 13 Later, plaintiff filed a motion to reinstate his case, insisting he was never properly served with defendant's motion because defendant "intentionally" used one of his email addresses rather than another of record as part of its "shady, deceptive corruption." Defendant responded, arguing that it did not act with wrongful intent as it used an email address to serve plaintiff that he, himself, had been using to communicate with defendant's counsel, and that, regardless, plaintiff had independently failed to prosecute his cause for the last five months (since remand). The trial court granted plaintiff's motion to reinstate the case, over defendant's objection, and set the matter for trial at 11 a.m. on March 2, 2022.
For the record, plaintiff filed a motion for sanctions in our Court, insisting that we compel defendant's counsel "to return all the money that [she] makes in this case back to the defendant" due to her persistent perjury, intimidation tactics and lack of ethics, and that she be disbarred. Our Court denied plaintiff s motion.
¶ 14 In February 2022, less than a month before trial, plaintiff filed an untitled motion in the trial court in which he asked that the trial date be "stricken and rescheduled for a later date" and that the court permit him "to serve all the subpoenas requested in this motion, since [he] believes that the Protective Order is still in effect," presumably referencing the protective order issued in June 2018. Plaintiff insisted that defendant "will likely bring its lying employees" to testify at trial and that they "combined to commit multiple felonies against [him]." Because of this, he wanted to issue several subpoenas for various records, including digital and hard copy records from the veterinary clinic involved herein, veterinary employee records, records associated with the microchip identification code of the cat, and call logs from AT&T for cellular telephone numbers belonging to defendant's volunteers; he also sought the issuance of subpoenas for the appearance of several witnesses at trial, including managers and assistant managers from PetSmart, as well as his mother, father, and neighbor. He requested at least a two-month delay, as well as a change in time to later in the afternoon, insisting he could not attend an 11 a.m. trial.
¶ 15 The trial court denied his motion. In its order, it made clear that while plaintiff was prohibited from subpoenaing records pursuant to the protective order still in place, he was not prohibited from issuing subpoenas for trial witnesses. The court specified that the trial would remain set, as previously indicated, for March 2, 2022, in person at 11 a.m.
¶ 16 Thereafter, on February 28, 2022, plaintiff issued several subpoenas for the same records he had just sought in his untitled motion, which the trial court had prohibited due to the protective order, all commanding that these records be submitted to him on days after the March 2 trial date (for example, on or before "March 30, 2022," "April 1, 2022," and "April 4, 2022"). In response, defendant filed an emergency motion to quash, noting that the subpoenas were contrary to the court's prior order, violated the June 2018 protective order, and inexplicably asked for deliverance after the set trial date.
¶ 17 On March 2, 2022, the trial court held the trial as planned with respect to the sole remaining count of plaintiff's third amended complaint, promissory estoppel (count II), and reserved ruling on the motion to quash. Plaintiff presented testimony from his mother and father, and he also testified on his own behalf. During his testimony, plaintiff spoke about the subpoenas he issued, telling the court that "there was just no way" for him to get the records before trial. The trial court responded by noting that the case has been before it "for many, many months now, subsequent to the mandate being issued by the Appellate Court and [plaintiff] did not engage in any discovery, nor request anything," even though, despite the protective order, it had given him "every right, every opportunity * * * to issue appropriate discovery" via offers to assist him. The court further noted that plaintiff "indicated [he was] ready for trial and here we are," and stated that, consequently, "if [he was] asking for a continuance, that is denied." Plaintiff concluded his testimony by describing his belief that defendant's volunteers made him "unambiguous offers" to contact him when the cat was ready for adoption, that he "relied on those offers to [his] detriment," and that his reliance was "expected and foreseeable by the defendant."
¶ 18 As at the 2018 hearing, defendant presented testimony from its president, Dr. Rykoff, and volunteers Leetz and Divierto. Briefly, Dr. Rykoff testified that defendant had no records that plaintiff either relinquished a cat or sought to adopt one, and she was not aware of any promises made to him about any adoption. Leetz testified she performed a private adoption of the cat at issue apart from any involvement by defendant, since she worked independently and directly with the veterinarian involved herein and not through her volunteer status with defendant. She also testified that she never promised anything to plaintiff about informing him of when the cat would be available for adoption, particularly since he never even filled out the required adoption application. Divierto similarly testified she never told plaintiff he could adopt the cat or that she would call him when it became available for adoption.
¶ 19 Plaintiff cross-examined each of defendant's witnesses at length, asking a multitude of questions. However, toward the end of these examinations, plaintiff began to stray from the issues at trial and, instead, to ask irrelevant and legally inappropriate questions, questions that had been asked and answered, and to argue with the witnesses. Each time, at these points, the court gave plaintiff one last opportunity to ask an appropriate question, and when he could not, ended his cross-examinations and excused the witnesses. Thereafter, it allowed plaintiff to testify in rebuttal, during which time he countered, at length and uninterrupted, the testimony of all three defense witnesses. The court also allowed him to make a closing argument and a rebuttal closing argument, which he did, again uninterrupted.
¶ 20 At the close of trial, the court issued a decision and, in addition, ruled on defendant's pending motion to quash the subpoenas. First, with respect to the remaining count of promissory estoppel, the trial court entered judgment in favor of defendant and against plaintiff. It held that there was no promise made to plaintiff by defendant or any of its volunteers or representatives, specifically finding Leetz and Diviertro's testimony "quite credible" and rejecting any contrary testimony provided by plaintiff. The court further concluded that, "[a]s there was no promise, there cannot be a satisfaction of all necessary elements to maintain the cause of action that [plaintiff] has before this Court." It explained that he could not have relied on a promise "as there was none; and he certainly couldn't have done that to his detriment." Finally, the court quashed the subpoenas, finding them to have been "untimely, as this matter had been set for trial for an extended period of time," and that the information sought was "inappropriately requested" by plaintiff for posttrial delivery.
¶ 21 ANALYSIS
¶ 22 As noted, in his brief on appeal, plaintiff divides his argument into six separate issues. However, some of these are very closely related and/or duplicative. Those that are, we deal with together; nevertheless, we address all his claims herein.
¶ 23 First, plaintiff asserts error upon the trial court for its failure to sua sponte push back the trial to a later date so that the record subpoenas he sent out two days before could be fulfilled. Relatedly, his second point of error is that the court should have granted him a continuance upon his motion for the same reason, as the records he sought would have, in his view, undoubtedly shown that defendant's witnesses were not credible. We disagree that there was any error on the part of the trial court for holding the trial as scheduled.
¶ 24 As a threshold matter, plaintiff insists that we are to review these issues pursuant to something he calls a "de novo 'plus'" standard of review. This is most certainly incorrect. It is well established that the decision to deny a motion for continuance lies within the sound discretion of the trial court. See Doe v. Parrillo, 2021 IL 126577, ¶ 65. Moreover, a litigant does not have an absolute right to a continuance. See Illinois State Toll Highway Authority v. Chicago Title Land Trust Co., 2021 IL App (1st) 200813, ¶ 48. Rather, and particularly once his case has reached trial, he must provide the court with an especially compelling reason for the continuance he seeks because of the inconvenience caused to the other parties, attorneys, witnesses, and the court itself. See Illinois State Toll, 2021 IL App (1st) 200813, ¶ 48. A reviewing court will not reverse a trial court's denial of a continuance unless it has resulted in a palpable injustice or constitutes a manifest abuse of discretion. See Doe, 2021 IL 126577, ¶ 65; Illinois State Toll, 2021 IL App (1st) 200813, ¶ 48.
¶ 25 The trial court did not abuse its discretion in either failing to sua sponte extend the trial date nor in denying plaintiff's request to issue a continuance until the records sought in his subpoenas were delivered. Instead, the record is replete with example after example of the leeway in time the court offered plaintiff to prosecute his case, and of plaintiff's recalcitrance in the face thereof. That is, our Court remanded this cause in June 2021 so that plaintiff could proceed against defendant on count II of his third amended complaint. Plaintiff, however, did nothing after that. It was defendant who, finally in October 2021, moved for dismissal of the cause; plaintiff, in fact, never appeared. The trial court, though noting that proper notice had been given to plaintiff, gave him another chance to appear. It cautioned him that if he failed to do so, his cause would be dismissed for want of prosecution. Yet, plaintiff again failed to appear.
¶ 26 Having twice ordered plaintiff to appear, and after twice failing to do so, the trial court could have easily effectuated the dismissal it ordered, and this Court would not have blamed it. However, the trial court gave plaintiff yet another chance a month later, when he finally made himself known by filing a motion to vacate the dismissal, arguing something about how he should be absolved from any tardiness as the fault lay squarely with defendant who, according to him, manipulatively used one of his email addresses for notification purposes as opposed to another he preferred more. Regardless, while the trial court could have easily passed over this excuse, it again gave plaintiff the benefit of the doubt and reinstated his cause, giving him more than two months (after more than seven months had already passed since remand) to prepare for trial.
¶ 27 Less than a month before trial, plaintiff filed his untitled motion for a continuance, asking for at least two more months and asserting he needed more time because he wanted to subpoena records to counter defendant's "lying employees" at trial. The records he sought included digital and hard copy records from a veterinary clinic, veterinary employee records, microchip identification code records, and personal cellular telephone call logs of defendant's volunteers. The court denied plaintiff's motion two weeks before trial. It noted the protective order that had been entered against him earlier in this litigation (due to his abusive discovery practices) was still in effect, and it specifically prohibited him from issuing these record subpoenas. Accordingly, the court reasoned, waiting for these subpoenas was not a valid reason to push the trial date and it reminded the parties trial would begin on March 2, 2022.
¶ 28 Yet, even though the court explained all this to him plainly and thoroughly, plaintiff went ahead and filed the exact record subpoenas the court specifically told him he could not. Not only did he do so just two days before the start of the trial, but he also set a delivery time for the records sought for dates well after the trial date, including the very end of March and going into April. Also, he then raised the issue of a continuance again at trial, in the midst of his case-in-chief, insisting that he be allowed to submit the records he inappropriately sought.
¶ 29 The record demonstrates that the trial court considered each of plaintiff's requests for a continuance and that it properly employed its discretion to deny them. Contrary to plaintiff's assertion, that its final decision was to deny his requests is not a basis to claim abuse of discretion, and there is simply nothing here that could support such a claim. As the court itself stated, this case had been before it "for many, many months," and it gave plaintiff "every right, every opportunity * * * to issue appropriate discovery" via offers to assist him; plaintiff never utilized this assistance. Furthermore, he answered ready for trial, knowing without a doubt the date on which it was to take place. Additionally, we understand plaintiff's status as a pro se. (Indeed, his repeated references to such make it hard for us to forget.) However, the record shows an obvious mindfulness on the part of the trial court regarding this, which it expressed throughout this litigation and which was evidenced by, as we have described in detail, both the assistance and the many opportunities it afforded plaintiff in pursuing his case. This was not a situation involving murky instructions couched in impossible-to-understand "legalese," nor did it involve an intense legal procedure that would overwhelm the average litigant. Instead, and contrary to any intimation by plaintiff now on appeal, what was happening was clear: plaintiff (who the record affirms is not a stranger to the legal system) long knew the set trial date and he knew he was prohibited from filing the record subpoenas. Yet, he filed the subpoenas anyway, in an obvious attempt to get the trial court to push the trial date back after it repeatedly said it would not, and when that did not work, he stopped his case-in-chief to request a continuance for the same reason--to obtain evidence he knew he was strictly prohibited from seeking.
¶ 30 At some point, this litigation needed to move forward and conclude, for the sake of finality. That point, as determined by the trial court, was on March 2, 2022, some six years after plaintiff filed his initial complaint. Given what occurred, and without more from plaintiff here, we cannot say that the trial court's denial of his request for a continuance or its decision not to sua sponte postpone the trial amounted to any abuse of discretion. See Illinois State Toll, 2021 IL App (1st) 200813, ¶ 48; In re Marriage of Ward, 282 Ill.App.3d 423, 430 (1996) (without providing an especially grave reason for requesting a continuance after case has reached trial stage, litigant, including one who is pro se, cannot claim error with respect to the denial of such).
¶ 31 Next, plaintiff's third and fourth points of error are closely related to each other. He claims that the trial court erred in curtailing his ability to ask questions of defendant's witnesses on cross-examination by overlooking "Illinois Rule of Evidence 611(c)" and by prohibiting him from impeaching them. He insists all his questions to the testifying witnesses were relevant because, though they may not have been about the facts of this cause, he asked them in an effort to, paraphrasing his words, show that, because they lied under oath about issues not directly related to those in his complaint, they were more likely to lie under oath about issues that are directly identified in the complaint.
¶ 32 The crux of plaintiff's claim is that the trial court erred in limiting the scope of his cross examination of defendant's witnesses. The extent of proper cross-examination lies within the broad discretion of the trial court and its determination as to what questions are appropriate will not be reverse absent an abuse of that discretion. See McDonnell v. McPartlin, 192 Ill.2d 505, 533 (2000); accord Bell v. Hill, 271 Ill.App.3d 224, 231 (1995). There was no abuse here.
¶ 33 The trial court allowed plaintiff to fully present his case-in-chief, permitting him to call all the witnesses he desired. His mother and father testified, and the court allowed plaintiff, himself, to testify, dispensing of many procedural formalities so he could present his entire version of events. When it was time for defendant to present its case-in-chief, it called the same three witnesses it had when the case was originally before the trial court: its president Dr. Rykoff and its volunteers Leetz and Divierto. These witnesses were not new and they testified to the same series of events they had in the past. The court allowed plaintiff to cross-examine each of them, again at length, during which time he asked a multitude of questions, particularly regarding all their interactions with him and what words they specifically exchanged, in an effort to prove his promissory estoppel claim. This was proper.
¶ 34 However, the record is undeniably clear that a pattern developed towards the end of each of plaintiff's cross-examinations of the defense witnesses. After posing many proper questions to them about the issues in his complaint, plaintiff's cross-examinations began to veer off-course and into extremely inappropriate territory. These included heated back-and-forth exchanges about whether the witnesses were paid employees or volunteers, as well as questions about whether they believe in God. At this point, with each of the three witnesses, the trial court stopped plaintiff, redirected his attention to the facts of the case, and gave him one last opportunity to pose an appropriate question. Only when he no longer did so did the court end his cross-examinations and excuse the witnesses. Additionally, the court provided him with a further opportunity at the end of trial to present any further comment he wished with respect to the testifying witnesses by allowing him to take the stand in rebuttal and allowing him to counter their testimony at length and uninterrupted, of which, as the record shows, plaintiff took full advantage.
¶ 35 While we acknowledge that one purpose of cross-examination is to test the credibility of witnesses (see McDonnell, 195 Ill.2d at 533), that is only true with respect to their credibility in relation to main issues of the cause of action. What plaintiff began to do here at the end of his cross-examinations of the defense witnesses was not that, as it far exceeded the scope of this case. Accordingly, we find no abuse of discretion on the part of the trial court in imposing the limits it did.
¶ 36 Plaintiff's fifth claim on appeal is that the trial court erred in denying his motion to vacate the protective order that had been imposed in June 2018. Though difficult to comprehend, we can surmise from his brief on appeal that his argument is, essentially, the trial court should have granted his motion and vacated the protective order because he "has never intentionally violated" it and the reason for it, namely, his harassment of the defendant's witnesses, "is not a legitimate purpose, because [he] has never sought to impose any expense to the defendant or its volunteers * * * and [he] has never harassed the defendant or its volunteers." (Emphasis in original.) He further insists that, because he "has never been charged with or convicted of the harassment or stalking of any entity," any alleged harassment during discovery here inherently never occurred and, as such, there was never any legitimate reason for the imposition of the protective order in the first place.
¶ 37 Plaintiff devotes much of his argument of this issue hiding behind his pro se status, claiming he made "one simple mistake" at the outset of this litigation when he sent a subpoena to defendant's former counsel that he should not have. But the record contradicts this, repeatedly, and we do not appreciate his attempted manipulation of the empathy we have toward pro se litigants. As the trial court here described, the protective order was issued against plaintiff because of his continuous discovery violations, which it came to characterize as amounting to harassment. For example, he demanded personal information from the defendant's witnesses that had nothing to do with the matter at hand; he attempted to have inappropriate communications with them; and he repeatedly filed and delivered subpoenas to them. Indeed, upon motion of defendant, these witnesses provided the court with affidavits expressing their fear of plaintiff and what he could, and would, do should he obtain their personal information. This led to the court imposing the protective order. That the court chose not to vacate it upon plaintiff's request as the cause proceeded to trial was not an abuse of discretion. See Selby v. O 'Dea, 2017 IL App (1st) 151572, ¶ 115 (whether to impose and when to lift protective order is within sole discretion of trial court, and as such, decisions depend on the facts presented and needs of the parties before it). Clearly, plaintiff did not stop his abusive conduct as this cause progressed. For example, he literally filed the same record subpoenas specifically prohibited by the protective order less than two weeks after the trial court held a hearing and explicitly told him he could not do so. The court's directions were abundantly clear; there was no room for any misunderstanding, even for the most inexperienced pro se litigant. Assuming, as plaintiff would have us, that he made "one simple mistake" early in the discovery process, the record before us shows he did not learn his lesson and continued to do what the protective order prohibited. Accordingly, we find no error on the part of the trial court in denying his request to lift it.
¶ 38 Plaintiff's final contention on appeal is that the trial court should have issued a warrant for the arrest of defendant's volunteers for perjury or, alternatively, that we do the same. We will not address this claim further. Suffice to say, a trial court, as finder of fact, sits in the best position to evaluate the conduct and demeanor of the testifying witnesses; we give it great deference in its credibility determinations and will not substitute our judgment therefor. See DeLong v. Cabinet Wholesalers, Inc., 196 Ill.App.3d 974, 978 (1990). None of defendant's witnesses have wavered in their accounts of what occurred in this cause since its inception. We find no indication of perjury in the record before us and certainly no basis to have them arrested for it.
¶ 39 As we close our decision here, there is one more issue we must address. Though not flushed out, defendant includes a request at the end of its brief that we enter an order for sanctions against plaintiff for filing a frivolous appeal. Having thoroughly reviewed this matter, we completely understand defendant's request. For the record, we note that both sides have repeatedly asked in both this matter and the prior appeal that sanctions against the other be ordered. The threat of sanctions has been used as the proverbial sword throughout this litigation, as has the call for disbarment of defendant's attorney (by plaintiff) and the request to curtail abusive litigation tactics and strike plaintiff's brief on appeal (by defendant). Plaintiff has even boasted in several documents in the record that, as he has been declared indigent for legal purposes, he will never be held responsible for court costs, while at the same time suggesting he has abundant access to his parents' wealth and resources, insinuating continued pursuit of this matter.
¶ 40 In our collective decades of experience on the bench, this panel of the Court must say it has never seen a case with underlying facts and requests for relief even remotely similar to those herein. And, as much as we would like to say that the cause before us was taken for an improper purpose and not in good faith, we will not impose sanctions-at this time. The trial court did not feel the need to do so, and we honor that decision. Moreover, it cannot be denied that a prior panel of this Court felt the need to issue a remand of this matter, in a published opinion no less, so it could be properly resolved, thereby giving at least a minimal amount of credence to plaintiff's cause of action.
¶ 41 Ultimately, however, we conclude in this regard. It has been seven years; it has long been time for this litigation to end and for these parties to go their separate ways. We, as the reviewing court, have discretion in issuing sanctions. See Parkway Trust &Bank Co. v. Korzen, 2013 IL App (1st) 130380, ¶ 87. Though we choose not to impose them now, this does not prevent us from doing so in the future, should further litigation be pursued in an improper manner in our Court and should their consideration become necessary.
¶ 42 CONCLUSION
¶ 43 For all the foregoing reasons, we affirm the judgment of the trial court.
¶ 44 Affirmed.