A Chicago appeals panel has affirmed a lower court's ruling litigants
can’t rely on their attorney to keep them abreast of their case, but must
instead keep tabs themselves or face the consequences – potentially including
costly default judgments.
The Aug. 9 ruling was authored by Justice Michael Hyman of the Illinois
First District Appellate Court, with concurrence from justices Daniel Pierce
and P. Scott Neville. The ruling upheld a decision by Cook County Circuit Judge
In 2008, David James sued his former employer, Building
Maintenance Systems, of northwest suburban Barrington, alleging the company
committed wage violations and converted property. Building Maintenance Systems
countered with a suit against James, his wife and two of his companies,
alleging he left BMS, formed competing companies that took business from BMS
and misused BMS employees and property for his own use.
Discovery proceedings began, with James and his co-defendants repeatedly
missing deadlines to turn over material to BMS. When James did respond, the
court found he and the other defendants fell short for several reasons,
including that they failed to provide "substantive" information and
materials were wrongly labeled.
The court ordered the defendants to try again within three
weeks. Several days after the new deadline, defendants again furnished
inadequate materials, according to the suit. BMS then asked the court to
sanction defendants by tossing their suit against BMS and commanding defendants
to pay BMS' legal costs. At this point, defendants’ attorney withdrew and new
counsel came aboard.
The court gave defendants more time to satisfy the discovery
request, but also ordered defendants to cover BMS' costs, warning that further
delays would result in full sanctions. However, defendants again failed to
comply, prompting BMS to again ask for the dismissal of defendants' case and
for defendants to cover BMS' additional legal bills.
The court gave defendants one last chance to comply with
discovery, but to no avail. Circuit Judge Kathleen Pantle then found defendants
in default, because they did not exercise due diligence, and told them to pick
up the rest of BMS' legal tab. A hearing was held in April 2012, at which BMS
argued for damages, with neither defendants nor their counsel showing. Pantle
directed defendants to cough up $1.2 million in damages and BMS began
proceedings to determine defendants’ assets.
Defendants reacted a month later by filing a motion to vacate
the default judgment, but without following proper procedure. As a consequence,
the motion was not heard. Defendants did not return to court to proceed
properly until April 2014. They blamed their attorneys for their problems,
saying despite their effort to monitor the case, they allegedly had not been
kept informed of discovery proceedings and later, did not know they were found
BMS objected, and Judge Pantle dismissed the motion. Defendants
Appellate Justice Hyman had no sympathy for defendants, noting
they repeatedly failed to fulfill discovery requirements, then, after learning
of the default judgment, waited almost two more years before taking action.
"According to an ancient maxim, the law helps those who are
watchful and not those that are sleepy, negligent, or (we add) derelict in
regard to discovery," Hyman observed.
"Even if, as defendants contend, their attorney kept them
uninformed, it was incumbent on them to be aware of what was happening in their
case and they cannot rely on any neglect by their attorney as an excuse for
failing to exercise due diligence,” Hyman pointed out. “Generally, litigants
are bound by the mistakes or negligence of their counsel.”