No. 2--00--0073			     

_________________________________________________________________

	IN THE

	APPELLATE COURT OF ILLINOIS

	SECOND DISTRICT

_________________________________________________________________

JEREMY BUFFINGTON,	)	Appeal from the Circuit Court

	)	of Winnebago County. 

	Plaintiff-Appellee,	)	

	)	

v.	)	No. 98--AR--674

	)

RICHARD YUNGEN and TAMMIE	)

YUNGEN,  	)	Honorable		)	

	)	Timothy R. Gill,

	Defendants-Appellants.	)	Judge, Presiding.

_______________________________________________________________

__

 	JUSTICE BYRNE delivered the opinion of the court:

	Defendants, Richard Yungen and Tammie Yungen, appeal the

order of the circuit court of Winnebago County entering a default

judgment in favor of plaintiff, Jeremy Buffington.  We reverse and

remand.

	The record discloses the following.  On September 25, 1998,

plaintiff filed a four-count complaint against defendants to

recover for personal injuries and property damage allegedly

sustained by plaintiff when his car collided with a car driven by

Richard and owned by Tammie.  Counts I and II alleged property and

bodily injury damages against Richard.  Counts III and IV alleged

property and bodily injury damages against Tammie.  

	On November 24, 1998, the trial court ordered defendants to file a written answer and a Supreme Court Rule 222 (166 Ill. 2d

R. 222) disclosure statement within 21 days.  The matter was also

set to March 25, 1999, for an arbitration hearing.

	On January 11, 1999, plaintiff filed a notice compelling the 

appearance of witnesses, a notice of intent pursuant to Supreme

Court Rule 90 (145 Ill. 2d R. 90), a notice to produce, and

interrogatories to Richard and Tammie.  On February 9, 1999, the

trial court entered a default judgment against defendants for

failing to file an answer.  On February 25, 1999, the trial court

vacated the default conditioned upon defendants' paying $300 in

attorney fees to plaintiff’s attorney.

	On March 5, 1999, Richard filed a motion to strike and

dismiss count II "in lieu of answer" because another claim, count

I of No. 98--AR--776 directed against Richard for the same

accident and the same bodily injury claim as count II of the

present complaint, was pending.  Richard argued that it would

expose him to two judgments for the same alleged wrong and he

should not be made to answer twice for the same action.  Plaintiff

filed a motion to consolidate the two cases.  On March 9, 1999,

the court granted plaintiff’s motion to consolidate and dismissed

count II of the present claim.

	On March 17, 1999, plaintiff filed a motion to compel

discovery.  On March 18, 1999, the trial court granted defendants 

21 days to complete discovery and set the arbitration hearing date to April 19, 1999.  

	On April 2, 1999, defendants filed a Rule 222 disclosure

statement and an answer to the complaint.  Defendants also filed

an appearance and jury demand.  On April 8, 1999, the court

granted defendants leave to answer counts III and IV of

plaintiff’s complaint.  On April 13, 1999, defendants filed an

amended answer to plaintiff’s complaint and a motion for summary

judgment as to counts III and IV directed against Tammie.  

	On April 22, 1999, plaintiff filed a motion for discovery

sanctions against defendants for their failure to respond to the

discovery.  The trial court granted the motion, sanctioning

defendants with $400 in attorney fees. 

	On May 27, 1999, the parties appeared before the trial court

on defendants’ motion for summary judgment.  No other motions were

pending.  Without ruling on defendants’ motion for summary

judgment, the trial court struck the amended answer and entered

a default judgment against defendants for failing to respond to

discovery as previously ordered.  

	On June 3, 1999, following a prove-up, the trial court

entered judgment for plaintiff against defendants, jointly and

severally, as to counts I and III for property damage to

plaintiff’s car in the amount of $4,325, plus costs, and against

Tammie as to count IV for bodily injuries in the amount of $1,388,

plus costs.  Defendants filed a motion to vacate and attached answers to interrogatories.  On July 1, 1999, the trial court

denied the motion. 

	On July 1, 1999, the trial court vacated the default judgment

against Tammie as to count IV on plaintiff’s motion.  Thereafter,

Tammie filed a motion for summary judgment.  The trial court

granted the motion, and count IV was dismissed.

	On December 16, 1999, the trial court severed the

consolidated cases and entered a final judgment against defendants

as to counts I and III.  Case No. 98--AR--776 remains pending. 

There are no reports of the proceedings included in the record on

appeal. 

	On appeal, defendants contend that the trial court abused its

discretion in entering the default order and denying their motion

to vacate.  They claim that (1) their actions did not exhibit a 

deliberate, contumacious, or unwarranted disregard for the trial

court’s authority; (2) they had no notice that a motion to strike

the answers and to enter a default judgment would be presented to

the trial court when the court, sua sponte, entered judgment against them; (3) they were improperly sanctioned twice for the same conduct; and (4) the trial court failed to address Tammie’s

pending summary judgment motion before entering the default

judgment.  For the reasons that follow, we reverse and remand.

	Supreme Court Rule 219(c) (166 Ill. 2d R. 219(c)) provides

that where a party unreasonably refuses to comply with discovery rules or orders, the trial court may enter "on motion" "such

orders as are just" to remedy the situation.  The imposition of

sanctions is a matter largely within the discretion of the trial

court and should not be disturbed on review unless the order

constitutes an abuse of discretion, such as where the record shows

that the party’s conduct was not unreasonable or where the

sanction itself is not just.  Hartnett v. Stack, 241 Ill. App. 3d 157, 172 (1993).  "Because the purpose of these sanctions is to

effect discovery, rather than to punish the dilatory party

[citation], a 'just order' under Rule 219(c) is one which, to the

degree possible, ensures both the accomplishment of discovery and

a trial on the merits."  Martinez v. Pfizer Laboratories Division, 216 Ill. App. 3d 360, 373 (1991).

	In Vortanz v. Elmhurst Memorial Hospital, 179 Ill. App. 3d 584 (1989), the plaintiff argued that the use of the phrase "on motion" in Rule 219(c) implies that a party must present a written

motion before a sanction is imposed and that the trial court had

no authority to dismiss his complaint on its own motion.  We found

that the phrase "on motion" means that it can be made orally or

in writing.  Vortanz, 179 Ill. App. 3d at 589.  Moreover, because defense counsel orally requested that the court impose sanctions

when both parties were in court on another matter, we found it

unnecessary to decide whether Rule 219(c) requires a written

notice to be filed before sanctions may be imposed or whether a trial court has the authority to impose such sanctions sua sponte.  Vortanz, 179 Ill. App. 3d at 589.  However, we agreed with the plaintiff that the order was void because the plaintiff received

no notice that a motion would be presented seeking the relief

granted in the trial court’s order.  See Maras v. Bertholdt, 126 Ill. App. 3d 876, 881 (1984)(before a trial court enters a new

order, a party must give notice to other parties that a motion

will be presented, and, without such notice, the order is void). 

We concluded that, because the order was void, the trial court

abused its discretion by denying the motion to vacate that order. 

Vortanz, 179 Ill. App. 3d at 590. 	

	Similar to Vortanz, defendants argue that the failure to give them notice that a motion would be presented seeking the relief

granted in the trial court’s order rendered the default judgment

order void.  We agree.  Here, as in Vortanz, defendants were in court for a hearing on their motion for summary judgment.

Defendants received no notice that a motion seeking a default

judgment would be presented.  Moreover, there is no record that

plaintiff made an oral application to the court for such a motion. 

Nor does plaintiff allege that an oral motion was in fact given

at the hearing on defendants’ motion for summary judgment.  We

therefore conclude the trial court’s default order was void. 

	Relying on In re Rehabilitation of American Mutual Reinsurance Co., 238 Ill. App. 3d 1, 11 (1992), where the Appellate Court, First District, concluded that the failure to

serve a nonmoving party with notice renders a subsequent order

based on that motion voidable rather than void, plaintiff claims

that defendants have not been prejudiced by the failure to receive

notice because defendants were or should have been well aware that

they had not responded to the discovery order within 21 days of

the previous sanction.  We disagree.  Defendants had a right to

make their defense, and common justice dictates that in order to

enjoy that right they must first be notified.  See City of Chicago v. American National Bank & Trust Co., 171 Ill. App. 3d 680, 688 (1988).  The denial of that right was prejudicial.  Accordingly, because the order entering a default judgment against defendants

was void, we hold that the trial court abused its discretion by

denying the motion to vacate that order.

	Furthermore, Rule 219(c) contains a list of sanctions that

the court may impose to insure compliance with discovery rules or

orders, such as staying the proceedings, barring testimony,

striking claims or defenses, awarding fees and costs, instituting

contempt proceedings, entering a default judgment, and dismissing

the action.  166 Ill. 2d R. 219(c).  A default judgment and a

dismissal of the action, being the most drastic sanctions, are

ones that courts are reluctant to impose.  Martinez, 216 Ill. App. 3d at 373-74.  A court should impose such sanctions only as a last

resort where the actions of the party demonstrate a deliberate, contumacious, and unwarranted disregard of the court’s authority; 

only whenre all other enforcement powers at the court’s disposal

have failed to advance the litigation should the court order such

a penalty.  Martinez, 216 Ill. App. 3d at 373-743-74.  The sanctions may be set aside where a trial on the merits could be had without

hardship or prejudice.  Martinez, 216 Ill. App. 3d at 373-74.  See, e.g., Hartnett, 241 Ill. App. 3d at 174 (defendant alleged he was deathly ill and could not attend a deposition but failed to file

a physician’s affidavit as proof as ordered by the trial court); Perimeter Exhibits, Ltd. v. Glenbard Molded Binder, Inc., 122 Ill. App. 3d 504, 513 (1984) (defendant deliberately left the state

knowing his deposition was required).

	In the present case, the record contains an order of default

entered against defendants for their failure to file an answer to

the complaint on February 2, 1999.  The order was vacated on

February 25, 1999, and, in exchange for the court's vacating the

default, defendants were sanctioned and ordered to pay $300 in

attorney fees.  By April 13, 1999, defendants had filed an amended

answer and a Rule 222 disclosure statement.  Subsequently, on

April 22, 1999, the trial court granted plaintiff’s motion for

sanctions for failing to respond to discovery, ordering defendants

to pay $400 in attorney fees.  On May 27, 1999, the trial court

entered a second default judgment sua sponte against defendants for failing to answer the discovery as previously ordered.  While it is clear that defendants failed to timely comply with the trial

court’s order to respond to discovery, there is nothing in the

record that exhibits a deliberate or contumacious disregard for

the court’s authority.  Thus, the reasons for and the basis of the trial court’s imposition of such an onerous sanction are unclear. 

Without evidence of the proscribed conduct, the entry of an order

of a default judgment against defendants was not a sanction

proportionate to defendants’ violation of the discovery process.  Under these circumstances, the trial court’s denial of the motion

to vacate the default judgment order was an abuse of discretion.

	We note that by this ruling we are not condoning defendants’

conduct.  We are aware that arbitration is designed to expedite

the hearing process without prolonging discovery.  However, this

does not mean that defendants must lose their right to their day

in court by such a drastic sanction when defendants had no notice

of any motion seeking the relief granted by the trial court and

there is no evidence of a deliberate, contumacious disregard of

the court’s discovery orders.  Therefore, we conclude that the

trial court abused its discretion in entering a default judgment

against defendants and denying their motion to vacate. 

Accordingly, we need not address defendants’ remaining

contentions. 

	The judgment of the circuit court of Winnebago County is

reversed, and the cause is remanded.

	Reversed and remanded. 

	HUTCHINSON, P.J., and GEIGER, J., concur.