FIFTH DI VISI ON July 30, 2010 Nos. 1-09-2460 & 1-09-3000 (Cons.) RIC HAR D P EAL, ) Appeal from the ) Circuit Court of Plaintiff-Appellant and ) Co ok Co un ty. Cross-Appellee, ) ) v. ) No. 06 L 8871 ) CINDY L EE, KEN RIZZ O, and GLENVI EW ) PARK DISTRICT, ) ) Honorab le Defendants-Appellees and ) Jennifer Duncan-Brice, Cross-Ap pellants. ) Judge Presi ding.

JUSTICE LAVI N deliver ed the opi nion of the

court: Here we consider the appeal of an ice skating instructor who filed suit for defamation and other causes of action after being fired by his employ

er. During the course of discover y, plaintiff deliber ately deleted thousands

of files f rom his pe

rsonal c omputer, using mul tiple prog rams with names like File Shredder and Privacy Eraser Pro. This led the trial court to dismiss his lawsuit as a sanction for the profligacy of his electronic spoliation of evidence. We affirm this ruling. Defendants appeal the trial court’s ref usal to grant attorney

fees. We also affirm this ruling of the trial cou rt. This consolidated appeal arises from an action filed by Richard Peal against his former employer, Glenvie

w Park District (District), two former coworkers, Cindy Lee and Ken Rizzo, and Christ

opher Kr ueger . On appe al, Peal c ontends that: (1) the circu it court a bused its discreti on in dismiss ing his f irst amen ded compl aint; and

(2) the c ircuit co

urt abuse d its discreti on in deny

ing him le ave to fi le a sec ond amend ed compla

int. Defe ndants, in their ap peal,1-09-2460 & 1-09-3000 (Cons.)

1 The circuit court granted summary judgment in favor of Christopher Kruege r on Novembe r 9, 2007, which Pea

l does not a

ppeal fr om. 2 contend that the circuit court abused its discretion in deny ing their motion for attorney 's fees. For the rea sons discu ssed below, we af firm the c ircuit co

urt's ju dgment a s to both ap

peals. MOTION PRACTI CE ON THE PLEADI NGS On Augu st 21, 2006 , Peal file d a compla int aga inst the Di strict, Lee, Rizzo (c ollective ly "defendants") and Christopher Kr ueger. 1 The complaint stated that Peal was employ ed by the District as an ice skating instructor from March 2000 until Fe bruary 2006. The

complaint contained three counts, with count I a lleging defamation of chara cter, count II

alleging intentional infliction of emotional distress, and count II I alleging violations of the Minimum Wage Law ( 820 IL CS 105/1 et seq. (West 2006)) by the District. Counts I and II referenced events that allegedly

occurred in August and October 2005. D efendants subsequently filed various motions to dismiss arguing, inter alia , that Peal's defamation claim was barred by the statute of limitations. In support of the motion, the District submitted several ty pewritten and printed documents which were said to have been a uthored by Peal in 2004 (2004 Doc uments). Among the 2004 Documents were various letters c ontaining internal complaints submitted by Peal to the

District, containi

ng simila r alleg ations as

those in hi s complain

t, as well as a harassment log. Defendants arg ued that although Peal's complaint allege d that the underlying events occurred in 2005, the 2004 Documents indicated that the eve nts took place in 2004 and his complaint was therefore untimely . Peal responded by denying that he had created the 20041-09-2460 & 1-09-3000 (Cons.)

3

Documen ts. On July 17, 2007, the circuit court ruled on the motions to dismiss and for sanctions. The circuit court stated that Peal had created a que stion of fact by deny ing authoring the 2004 Documents and therefore held that there wa s no reason to impose sanctions at that point of the proceedings. The circuit court g ranted the motions to dismiss on other grounds and without prejudice. On July 24, 2007, defenda nts sent Peal's attorney

an electronic discovery

preservation letter requesting that Peal be instructed to "pre serve any and all computer drives *** as well as all electronically

stored files and documents contained on all computer hard drives ( including external drives, flash drives, etc.) and all other electr onic data that may be

discovered." Peal filed an amended complaint on August 14, 2007, which ag ain pleaded the defamation and wage alleg ations against the defendants, as well as a c ivil rights claim under section 1 983 of Titl e 42 of the United Sta

tes Code (

42 U.S.C. §1 983 (2000 )). Def endants answered and asserted affir mative defenses based upon Peal's alleg ations being time-barred. Discovery c ommenced in January 2008, and de fendants eventually filed a motion to compel on July 3 , 2008, be cause Pe al had not responde d to a numbe

r of disc overy

request s. Peal continually failed to comply and wa s granted several multi-week time extensions, up to and including January 9, 2009. During this time, d

efenda nts also a ttempted t

o obtain e lectron

ic docume

nts from Pe al in connection with his denial that he had authored the 2004 Documents. On October 31, 2008, defendants sent a request to Peal's attorney to obtain a duplicate copy of Peal's computer hard drive and other storage media owne d by him. Peal would later deny that he was ever informed1-09-2460 & 1-09-3000 (Cons.)

4

by his counsel of this or any other related electronic discovery request. Initially, Peal's attorney respo nded t o defen dants ' reques ts by offe ring to arrange dates to all ow ex amina tion of Pea l's computer, however, shortly thereafter Peal's attorney advised defendants that he could not agre e to their examination request due to privileged email discussions saved in the hard drive. The defendants submitted a proposed search "pr otocol" to address those concerns, also suggesting that Peal's attorney

be allowed to review any documents for privileged information before producing the documents. This request was also ref used by Peal' s attorney, this time asserting that examination of the computers would not lead to any r elevant information. MOTION FOR SANCTIONS On February

20, 2009, the defendants filed a motion to compel, requesting that Peal make his personal compu

ters and electro nic stora ge devices ava

ilable for examinat

ion. The c ircuit court granted the motion and ordered Pea l to make his computers available by March 13, 2009. Peal again failed to comply with the circuit court's order and defe ndants filed a motion for sanction s. The cir

cuit cour t denied t he motion b

ut enter ed anothe r order directin g Peal to produce his computer by

April 10, 2009, stating that Peal would have an opportunity to review any documents bef

ore their disclosure. After an examination of Peal's computer, defenda nts' computer forensics expert Wolfgang Wilke reported that Peal produced a hard drive that had be en manufactured in Taiwan on October 9, 2008, w

hich had a

n operat ing sy stem insta

lled on No vember 2 3, 2008. The compute r also indicated multiple external storage devices had been c onnected to the system, a lthough Peal had not p roduc ed any of th em. W ilke a lso s tated that P eal had used s even d iffere nt dat a "wipi ng"1-09-2460 & 1-09-3000 (Cons.)

5

programs to permanently delete data from the hard drive, four of w hich were used on April 9, 2009, just prior the circuit court's order deadline for production of the computer. The use of the programs made it impossible to recover or identify the deleted data or files, however Wilke determined that at least 20,000 files had been destroy ed. After discovering this information, defendants filed a motion to dismiss under Supreme Court Rule 219(c) (210 I ll. 2d R. 219(c)) or, in the alternative, to compel production of other computer data storage devices. Peal's response to the motion and an attached aff idavit stated that he replaced his hard drive in October 2008 due to a virus. Another virus required him to reinstall the oper ating system in November 2008. Due to his problems with computer viruses in the past, Peal claimed that he regularly

downloaded "cleaning prog rams" in an attempt to repair his infected computer. He claimed that he

download

ed vario us prog rams beli eving that they

were fr ee but did not use any that requir

ed him to pay a fe e. Peal also claimed that he used external storage de vices in the past for school pr ojects, b ut discar ded them a

fterwa rds. Fina lly, Peal adde d that his c omplaints to the managers of the District were ha ndwritten and not typed on his computer. Defend ants r eplie d and s ubmi tted a n addi tion al affi davit from W ilke t o addr ess P eal's response and aff idavit. Wilk

e prese nted a num

ber of f indings i n his aff idavit: 1. There was no evidence that Peal had to re install his operating system or tha t virus activity require d him to use data-wiping programs, although Wilke stated that the datawiping programs could have delete d such evidence if it had existed. 2. Peal's claim that he did not use data-wiping prog rams requiring pay

ment was contradicted by

a payment re ceipt found on the computer for one such prog ram1-09-2460 & 1-09-3000 (Cons.)

6

previous ly f

ound. Multi

ple prog rams wer e intentionally

installed and ran s everal

times, some shortly before

the computer was produced. 3. Peal's claim that he discarded external storag e devices after using them for school project s was also

contrad icted by informat ion on his c omputer. A number of docume

nts relat ed to t he und erlying act ion fo und on the ha rd dri ve pred ated t he hard drive 's manufacturing date and were copied from an external source. Evidence also showe d that at least one drive was connected in November 24, 2008, and then again on April 8, 2009, day s prior to t

he produ ction of the compute

r to defe ndants. 4. The pr ograms Peal used

to "cle an" his c omputer a re prima rily used to pe

rmanent ly delete data and files so that they cannot be recovered later, a nd are marketed as such. On July 24, 2009, the circuit court held an evide ntiary hear

ing on defendants' motion rega rding Peal's alleged misconduct. During the hearing, Peal was first asked if he e ver submitted any typewritten complaints to the District. Peal denie d doing so, although he responded that he had submitted a

"ty pewritte n documen

t, but not a

complain t, about a n inciden t. *** The

re was a typewritten document I

wrote complaining about being suspended ***." After being shown one of the 200 4 Docume

nts with his

signatu re, Peal stated tha

t it "looks similar to a

document

that I created and authored" a

nd that the signature on it could be his signature. Despite this, he continued to opine that all such documents were fraudulent. Peal testified that the c omputer he produce d was one

he owned

since 200 3 and that

the hard drive ins ide it was

bought f rom a Be st Buy with ca sh, although he did not have a receipt. Peal also testified he thr ew away all external hard drives he had used, although he could not explain the evidenc e indicating that various1-09-2460 & 1-09-3000 (Cons.)

7

external d rives ha d been c onnecte d to his com puter since Nove

mber 24, 2 008. Peal

also admitted, contrary

to his affidavit, that he did purchase a progra m to wipe data from his computer to keep it "free of viruses and unwante d junk." Wilke testified at the hearing as well, relating substantially the same information contained in his previous reports and affidavits. He further stated that certain information relating to various data-wiping prog rams, such as its installation and last use dates, was unavailable since it appeared the prog rams had been deleted somehow after be ing installed or used. Wilke commented on Peal's claims regarding virus activity on the computer, stating that there was no evidence of viruses, his computer a lready ha d two anti-virus programs installed, and that it would be "very

difficult" to rely

on data-wiping software as virus protection due to the nature of computer viruses. Finally, Wilke noted that a data wipe occurred at 11:28 p.m. on April 8, 2009, an external storage device was subseque ntly plugg ed into the computer at 11:51 p.m., another data wipe occurred at 12:20 a.m. on Apr il 9, 2009, and then the computer was turned off before being produc ed to defendants a day later. On August 18, 2009, the circuit court entered a w ritten order on the spoliation issue granti ng def endants' motion and

dismissing

Peal's c laims with p

rejudic e, which

Peal now t

imely appeals. The defendants subsequently filed a motion for clarification of the circuit court' s order because it had not addressed whether def endants were awarded attorne y's f ees. The circuit court ultimately entered a

n order deny

ing attorney's fees, which defendants timely appeal. The two appeals were c onsolidat

ed into this

curren t appeal

.1-09-2460 & 1-09-3000 (Cons.)

8 PEAL’S APPEAL Peal first contends that the trial court abused its discretion in dismissing his amended complaint. We disagree. The imposi

tion of sa nctions is w

ithin the di scretion

of the ci rcuit co urt, and t his court will not disturb a circuit court's decision on appeal absent a c lear abuse of that discretion. Nedzvekas v. Fung , 374 I ll. App. 3d

618, 620 ( 2007). Supreme Cour t Rule 219( c) provi des: "If a p ar ty, or an y pe rs on at th e i ns ta nc e o f o r i n c ol lu si on wi th a p ar ty,

unreasonably

fails to c omply

with any provision

of part E of artic le II

of the ru les of this court (D iscover

y, R equests f or Admissi on, and Pr

etrial Pr ocedure ) or fail s to comply with any order e ntered u nder the se rules , the cour t, on motion , may

enter, i n addition

to remedies elsewhere specifica lly provided, such order

s as are just, including, among other s, th e foll owing: * * * (iii) Tha t the offe nding pa rty be deba rred fr om maintai

ning an y pa rticular claim, counterclaim, third-party

complaint, or defense relating to that issue;

*** (v) That , as to cla

ims or def

enses as serted in

any pleading to which that issue is

materia l, a judgm ent by defa ult b e enter ed again st th e offen ding p arty or th at the offend ing par ty's action be dismissed with or without prejudice." 210 I ll. 2d R. 219(c).1-09-2460 & 1-09-3000 (Cons.)

9

An order of dismissal with prejudice is a sanction to be invoked only in cases where the noncomplying pa

rty's a ctions show a "deliberate, contumacious or unwar ranted disregard of the court's autho rity." Shimanovsky v. Genera l Motors Corp. , 181 Ill. 2d 112, 123 (1998). When this cour t review s whethe

r the cir cuit cour t abused i ts discre tion in app lyin

g a sanction, we

must look to the

same fa ctors tha t the circ uit court was requi

red to consider in

deciding an appro priate sanction. Smith v. P.A.C.E. , 323 Ill. App. 3d 1067, 1076 (2001). These fa ctors include: (1) the surprise to the adverse party ; (2) the prejudicial effect of the proff ered testimony or e

vidence; (3) the nature of the testimony or evidence; (4) the diligence of the a dverse party

in seeking discovery; (5)

the timeliness of the adverse party 's objection to the testimony or e vidence; and (6) the good faith of the party offering the testimony

or evidence. Adams v. B ath and B ody Works, Inc. , 358 Ill. App. 3d 387, 395 (2005). Of these fa ctors, no single one is determinative and each case presents a unique factual situation which must be taken into consider ation when reviewing the propriety of a

particular sanction. Nedzvekas , 374 Ill. App. 3d at 621. Peal first disagrees with the circuit court' s finding that, during the evidentiary hearing on defenda nts' motion to dismiss, Peal "ma de vario us stateme

nts that we

re incon sistent wit

h his affida vit." While

Peal's t estimony was somew

hat consi stent (bu

t not nece ssarily

truthful) as to virus activity

on his comp

uter, oth er sign

ificant d iscrepa ncies exist

betwee n Peal' s testimony

, his affidavit, and information within the record. For example, Peal's affidavit indicated he downloade d free "cleaning" programs but would not use them if they requir ed a fee. Despite this, a receipt dated F ebruary 3, 2009 (a few months after defendants attempted to arrang e a date to examine Peal's computer), for Privac y1-09-2460 & 1-09-3000 (Cons.)

10

Eraser Pro was di scovere d by

Wilke on Pea

l's comp uter. Tha t specifi c prog

ram was r un at lea st once on the day

before he produced his computer. After being confronted with this information, Peal cla imed that i

t was simply

an overs ight on hi s part. Peal also claims that he was unaware that his computer was subjec t to this litigation and therefore was unaware tha t he should not install and delete certain programs and files. The record indicates, however, that defe ndants instructed Peal through a electronic discover y preser vation letter in July

2007 to "p

reserv e any

and all c omputer d

rives *** as well a s all electronically

stored files and documents." I n October 31, 2008, Peal was served with discovery requests to examine his computer. An email regarding the examination of Peal's computer was sent to him from his attorney on November 17, 2008, which Peal admitted to receiving. The parties also engaged in discussions in an attempt to arr ange a date to examine Peal's computer from October 2008 until February 2009 when defendants filed a motion to compel, which was grante d. Subsequ

ent to this, multiple da

ta-wipin g prog rams with clever names like

File Shredder, Eraser, CCleaner, Privacy Eraser Pro, Registry

Easy, and Wise Registry Cleaner, we re still execu

ted. Peal then fai led to com

ply with the c ircuit co

urt's f irst orde r direc ting him to produce his computer. After the circuit court orde red him to produce his computer again, Peal made an unscheduled visit with defendant's expert Wilke on April 6, 2009, to discuss the producti on of his c omputer. After the visit, Pe al contin ued to run

multiple da

ta-wipin g prog rams up until the day before

he finally made his c omputer available for examination. Peal’s claim of ignorance here is completely disingenuous. Peal's claim that h e woul d onl y use ext ernal s torage devices for school projects and then discard the de vices afterwards was also contradicted by the1-09-2460 & 1-09-3000 (Cons.)

11

evidence. Wilke found evidence that multiple storage devic es were attached on November 24, 2008 (after the operating sy stem was installed on the new hard drive), and that at least one wa s reattac hed on Apr

il 8, 2009, j ust day

s before the compu

ter was produced . Multiple d ocuments related to the underly

ing action were also found on Peal's c omputer which predated the hard drive manufacture date. Wilke found no evidence tha t they were

received by

email and thus concluded they

were likely c opied from an external drive. This again leads us to conclude that Peal’s testimony and arg

ument are factually

baseless, legally

meritless and worthy of the sanction s imposed by the trial c ourt. Despite t he paten tly u ntruthfu l testimony

and arg ument allu

ded to above, we a

re bound to consider six discrete factors to determine whether an a buse of discretion occurred: surprise, prejudice, the type

of evidence at issue, diligence, timeliness of objection, and good faith. Peal argues that because he ha s denied authoring the 2004 Documents, defendants ca nnot claim sur prise tha t the docu ments soug

ht were n ot found on

his comput

er. Peal 's denia

l, however , is the ve

ry reason w hy h is hard dr ives wer e sough t. To arg ue that it i s no surpr

ise document s are not

found ba sed on mer

e denial , when the

y ma y ha ve in fact been de stroy

ed, boils down to no more than

a fallac ious arg

ument circulus in probando . More to t he point un

der thes e facts, the real surprise is that a litigant would have the a udacity to discard his old har d drive and delete tens of thousands of electronic files with sophisticated data-wiping programs and then cry foul that his opponents should not be surprised. This sounds like the story of the childre n who murdere d their pa

rents an d then ple d for sy

mpathy as orpha ns. Peal also sugge sts defe

ndants ca nnot clai m prejudic e becau se they had other avenue s to1-09-2460 & 1-09-3000 (Cons.)

12

establish that Peal authored the documents at issue. In othe r words, Peal suggests that there we re other wa ys t o prove that he lied

about wr iting an d destroy ed the doc

uments in q

uestion. T

his nervy ar gument is devoid of merit. If the 2004 D ocuments were authored by Peal, his underlying action would have been undisputedly time-barred. This could have been proven throug h an examination of his pr

evious ha rd drive , externa

l drives, or data he may

have tra nsferr ed to his new hard drive. Peal, however, not only discarded his old hard drive, he failed to produce the external storage devices used to transfer data to his new hard drive, and then data-wiped his new hard dri ve multiple

times bef ore prod ucing it . The pro of here

is abunda

nt that Pea

l sought t o

co ve r u p h is el ec tr on ic tr ac ks by s ub te rf ug e a nd hi s a rg um en t o n a pp ea l i s p ur e p et ti fo gge ry. Peal next argues defendants were not dilige nt in discovery. This is another hollow argument, since the record indica tes that Peal was sent a preservation letter on July 24, 2007. Shortly after discove

ry commence d in January 2008, defenda nts sought electronic versions of the 2004 Documents through documents requests and requests to admit. Peal fa iled to comply with a

nu mb er of

th es e d is co ve ry r eq ue st s f or ne ar ly a yea r. Wh il e w ai ti ng fo r P ea l t o c om pl y, defenda nts reque sted Peal 's compu ter and e xternal storage d

evices i n Octobe r 2008. Af

terwar ds, Peal cont inued to de lay

his complia

nce with a

ny d iscover y r equests or court orders di recting him to comply. Under these

facts and circumstances, it is apparent that the def endants' efforts were sufficiently dilige

nt while Peal was diligent only in his ef fort to destroy evide

nce that could have destroy ed his cla ims in cour

t. Peal's argument that defenda nts' objection was untimely is also unsupporte d by the record , since de fendant s filed the ir motion to dismiss only

a month af

ter Peal produce d his1-09-2460 & 1-09-3000 (Cons.)

13

computer and shortly a

fter learning that Peal appare ntly discarded his old hard dr ive, data-wiped his curr ent hard drive mult

iple times , and fai led to pro duce exte rnal stor age de vices connected

to his computer. Finally , Peal cla ims that he

did not act in bad fa

ith. As the

English m

ight say , this argument surely

takes the biscuit. As the circuit court noted in its written order, plaintiff was notified in an email on November 17, 2008, that his computer was subject to the litigation. On February 27, 2009, the circuit court ordered Peal to produce his computer by March 13, 2009. Peal did not comply. I

t was not until April 10, 2009, that Peal produced his computer. But before producin g the computer, it

is appar ent that h e was busy de stroy ing evid ence fr om it, including the nigh t before he turne d the comp

uter ove r to the de fendant s. He also appare ntly disposed of any and a

ll external drives he had ever used. This strikes the court as the personification of bad faith. Having carefully

reviewed the record before us, we find absolutely no evide nce that the trial cou rt abuse d its discr

etion her e. Peal in sists that the circu it court f ailed to c onsider t

he six factor test discu ssed above becau se it did no t directl y a ddress them in its or

der. We f ind this argume nt to be una

vailing . We have u

pheld san ctions und

er Rule 21 9(c) ev en wher e a circ uit court has failed to specifically set out any of its findings. See Glover v . Barbo sa , 344 Ill. App. 3d 58, 63 (20 03) ("[A ] court' s failure to set out the grou

nds for sa nctions is n

ot per se revers ible error"). The circuit court he re, while it did not specifically a ddress the six factors outlined above, nevertheless issu

ed a deta iled writt en order elucida ting the releva nt facts i n determ ining its sanction. A review of that order and the re cord shows that Peal's actions were a de liberate,1-09-2460 & 1-09-3000 (Cons.)

2 "Chester the Molester" was a comic strip a ppearing in the adult magazine Hustler, the premise of which was a man, Chester, that was intereste d in molesting women. 14 contumac ious and un

warran ted disre gard o f the cou

rt's au thority . In c onsidera

tion of the

six factors discussed above, we find that the sanction issued here was well within the discretion of the circ uit court. Peal next contends that the circuit court erred in deny ing his March 31, 2009, motion for leave to file a second amended complaint. We disagr ee. Illinois has a liberal policy of allowing the amendment of pleadings, but this right is not unlimited. Lee

v. Chicago Transit

Authority

, 152 Ill. 2d 432, 467 (1992). Whether to allow an amendment to pleadings is within the sound discretion of the trial court, whose determination will not be disturbed on appeal in the absence of an abuse of discretion. Village of Wadsworth v. Kerton , 311 I ll. App. 3d

829, 842 ( 2000). The factors in dec iding whether a trial cou rt abuse d its discretion on a motion to amend a pleading include: (1) whether the amendment would cure a defect in the pleading; (2) whether the proposed amendment was timely ; (3) whether the opposition would be prejudiced or surprised by the amendment; and (4) whether there we re earlier opportunities to amend the pleading. Lee , 152 Ill.2d at 467-68. Peal first argues that the trial court abused its discretion in deny ing Peal leave to add James Weide s, a mana

ger at the Distr ict, for a new def amation c ount. He a

rgues t hat the f irst time he dis covere d that Weide s alleg edly said in 200 5, "Her

e comes Chester," in refe

rence t o "Chester the Molester," 2 was in Janua ry 2009 when

Jeff Whela

n, a former colle ague o f Peal' s,1-09-2460 & 1-09-3000 (Cons.)

15

was deposed. The statute of limitations to file a defamation claim is one y ear. See 735 IL

CS 5/13-201 (West 2004). Peal argues that the "discovery rule" tolled the statute of limitations. Under the discovery rule , the limitations period would not begin to run until such time a person knows, or reasonably

should have known, of his or her injury and that such injury wa s wrongfully caused. See Tom Olesker's Exciting World of Fashion, I nc. v. Dun & Bradstreet, I nc. , 61 Ill. 2d 129, 136 (1975) ( apply

ing disc overy

rule to pla

intiff' s claim where def

aming information was fre ely available only to subscribe rs of defendant credit reporting a gency 's service). Although there exists a deg

ree of u ncerta inty as to whe

n the disc overy

rule shou ld apply in defamation ca ses, this court has acknowledged its use and stated that it should not be applied " unless the publication was hidden, inherently undis coverable, or i nherently unknowab le." Blair v. Nevada L anding Partnership , 369 Ill. App. 3d 318, 326 (2006). In the instant case, we f

ind that Peal's claim against Weides was properly dismissed as time-bar red. Pea l essentia lly a rgues t hat the lim

itations pe

riod shoul d be tolle d becau se he did not know the identity of eac h person who made a defamatory statement about him. This type of argument has already

been rejected by

this court. See Guehard v. Jabaay , 65 Ill. App. 3d 255, 258 (1978) (rejecting plaintiff's a rgument that discovery

rule applies when injury

was known but the identities of persons causing such injury were not known). The record shows that Peal wa s aware that people had made defa matory statements re garding him at least by 2005, including the reference to him as "Chester." Because of this, Peal knew he had an injury and a cause of action in 2005, a nd at that point the li

mitations p eriod be gan to r un and the

burden f ell upon Pe al to1-09-2460 & 1-09-3000 (Cons.)

16

inquire further. See Castello v . Kalis , 352 Ill. App. 3d 736, 745 (2004). Plaintiff's own neglig ence in f

ailing to comprehensively

investig ate his c ause of a ction, inc luding hi s failure to timely discuss th e matter

with Whela

n, whom Pea

l himself had often

spoken to a

nd relie d on to inves tigat e this matt er, was his o wn doi ng. Peal next argues that the trial court abused its discretion in deny ing Peal leave to add a claim ag ainst Cindy

Lee . He alle ged tha

t betwee n 2000 and

2003, L ee call ed Peal a

"child molester" and a "perver

t" in the presence of Andria Kelling and other employe es of the District. Peal claims he did not learn of this until he spoke to Kelling in August 2008 and theref ore the limitations period should be tolled. Peal's argument here is base less. In 2006, Peal claimed that L ee had made a number of defamatory

statements against him (which Peal listed non-exclusively ) and solicited children as "age nts" to de fame an

d harass him in 2005. His amend ed compla

int, filed in 2007, sp ecifica

lly claimed that Lee' s alleged statements that Peal was a "c hild molester or pedophile" were false. Other filings by

Peal and statements by others in the record alleged that L ee made a number of defamatory

statements about Peal. For example, a testimonial affidavit by Carol Burgeson provided in February

2008 stated that she had heard L ee refer to Peal as a "pe dophile" on several occasions. Under these circumstances, we find that Peal possessed "sufficient information concerning his injury " such that he was put on inquiry to determine whether actionable conduct was involved. See Castello , 352 Ill . App. 3d at 7 45, qu otin g Knox College v. Celotex Corp. , 88 Ill. 2d 407, 416(1981). Peal failed to timely investigate and file these claims aga inst Lee, and therefore the circuit court properly found that they wer

e time-barred.1-09-2460 & 1-09-3000 (Cons.)

17

Peal fina lly a rgues t hat the c ircuit co

urt erre d in deny

ing him le ave to fi le a cla im agai nst Dorie Cascio, his former supervisor. Peal allege d a violation of his civil rights under section 1983 of Title 42 of the United States Code. See 42 U.S.C. §1983 (2000). Peal alleged that afte r he was terminated from the District in February 2006, he was hired as a skating coac h at the Barrin gton I ce Are

na. Bet ween Ma rch 7 and 17, 2006, Pe al filed c laims with t he Cook Cou

nty Commission on Human Rights (CCCHR) and the Equal Employment Opportunity Commission (EEOC). Peal was then terminated by the Barrington I ce Arena on March 17, 2006. Peal now argues that Cascio caused his termination after speaking to Judy Br

ahin, the director of the arena, in retali ation for

the char ges he filed with

the CCCHR an

d EEOC. Sec

tion 1983 c laims in Illinois are subject to a two-y ear statute of limitations. North en v. C hicago , 126 F.2d 1024, 1026 (7th Cir. 1997). While federal law will determine when a cause of action accrues, I llinois law determines whether the statute of limitations has been tolled. McGee v. Snyde r , 326 Ill. App. 3d 343, 352 (2001). Peal's injury occurred in March 17, 2006, and theref ore he had until March 17, 2008, to timely file his claim. See Kelly v. C ity of Ch icago , 4 F.3d 509, 511 (7th Cir.1993). Peal did not file this claim until March 31, 2009. Peal claims that the limitations period should be tolled because he did not learn about the nature of Cascio's alleged r etaliation until Whelan's deposition in January 2009. Peal, howeve r, had alleged in both complaints that Cascio was "responsible for Plaintiff's termination by the Barrington Arena af

ter he had fil ed discrimi nation charges a gainst the Gl enview Park D istrict. " A review of both amended complaints indicates that the two are ne arly identical e xcept that the

secon d amen ded co mplai nt st ates t hat Bra hin "re ceived infor mati on" fro m Cas cio be fore P eal's1-09-2460 & 1-09-3000 (Cons.)

18

termination. In addition to this, the very deposition that Peal relies on in arguing that the limitations period was tolled indicates that Peal believed he was being reta liated against as soon as three weeks after his t

erminati on from th e Barr

ington I ce Are na. The s tatute of

limitations

in section 1 983 claim s accru es when one knows or should ha ve known t

hat his constitutiona

l rights have been violated. Lawshe v. Simpson , 16 F.3d 1475, 1478 (7th Cir.1994). The record makes it clear that Peal knew, or should have known, of any potential retaliation by Cascio long before he claims to have learned of it in January 2009. We see no reason why the statute of limitations should have been to lled her e and Pea l does not o ffer a

ny r easons a rguing otherwis e. Peal' s claim, therefore, was time-barred. DEFENDANTS’ APPEAL F OR FEES Next, defendants appeal the circuit court's orde r denying attorney' s fees. In their May 22, 2009, motion to dismiss, defenda nts reque sted that t

hey be awar ded attor ney's fee s pursuan

t to Illinois Supreme Court Rule 219(c) (210 Ill. 2d R. 219(c)). As already stated above, the imposition of sanctions is within the discretion of the circuit court, and this court will not disturb a circuit court's decision on appeal abse nt a clear abuse of that discretion. Nedzvekas , 374 I ll. App. 3d at 620. An abuse of discretion only occurs when "no reasonable pe rson would rule as the circuit court ruled. " Aguirr e v. Ci ty of Chi cago , 382 I ll. App. 3d 89, 98 (20 08). Generally speaking, the purpose of Rule 219 is to "coerc e compliance with discovery rules and orders, not to punish the dilato ry party." Shimanovsky , 181 Ill. 2d at 123. Defendants, in their brief, engage in a lengthy discussion of Peal's misconduct throughout the underlying

litigation. At no time, however, do defendants explain how monetary sanctions1-09-2460 & 1-09-3000 (Cons.)

19

would begin to fulfill the purpose of Rule 219(c). For his misconduct, Peal has a lready r eceived a severe sanction in having his complaint dismissed with prejudice. Having carefully reviewed the rec ord, it is a

pparent to us that the circu

it court be lieved th at dismissin g Peal' s claim wa s a sufficient sanction. To grant attorney 's fees under Rule 219(c) af ter doing so would be no more than a sanction in surplus, and serve only to punish Peal unnecessarily. See Nunez v. H orwitz , 205 Ill. App. 3d 976, 984-83 (affirming denial of attorney's fees under section 219(c) whe re sanctions already

imposed were "sufficiently severe"); see also King v. American Food Equipment Co. , 160 I ll. App. 3d 898, 913 ( 1987) (affirming denial of monetar y da mages b ecause dismissal of action was a "severe enoug h sanction"). A number of cases defendants cite to support their ar gument are United States District Court cases that do not involve Rule 219(c), and are theref ore inapplicable and unpersuasive. See Peopl e ex re l. Bir kett v . Cit y of Chica go , 292 I ll. App. 3d 745, 755 ( 1997). The two I llinois cases defendants do cite in support of attorney 's fees, Koppel v. Michael , 374 Ill. App. 3d 998 (2007), and Smith v. Gle ash , 325 Ill. App. 3d 79 (2001), are c ases where this court reviewed a grant of attorney

's fees as opposed to a denial, as was the c ase here. Those cases, howeve r, do

no t s ta nd fo r t he pr op os it io n t ha t a tt or ne y's fe es mu st be gr an te d, bu t o nl y th at th ey may be granted, a decision which we re view under the heightened abuse of disc retion standard. In other words, we are not finding here that this court would ha ve similarly denied sanc

tions or reversed a grant of attorney

's fees, but instead only

find that a reasonable person could have rule d as the circuit court did. Accordingly, we find that it was not an abuse of discretion for the circuit cour t to deny defe

ndants' request for attorney 's fees under Rule 219(c), in light of the sanctions that had1-09-2460 & 1-09-3000 (Cons.)

20

already been imposed. Defend ants also argue that the c ircuit co

urt should

have aw arded f

ees unde r Ill inois Supreme C ourt Rule 1 37 (155 I ll. 2d R. 137 ). Defe

ndants'May

22, 2009, motion did no t reques t fees pursuant to Rul e 137 and theref ore the c ircuit co

urt was not require d to and did not addre ss the argument. Arguments made f or the first time on appeal are deemed forf eited ( Marshall v. Burger King Corp. , 222 Ill. 2d 422, 430-31 (2006)), including r equests for Rule 137 sanctions (Brazas v. Property

Tax Appeal Board, 309 Ill. App. 3d 520, 531 (1999) ). Accordingly , we decline to addre ss defen

dants' a rgumen t. Fo r t he fo re go in g r ea so ns , w e a ff ir m t he ju dg me nt of

th e c ir cu it co ur t o f C oo k C ou nt y. Affirmed. TOOMIN, P.J., and FI TZGERALD SMI TH, J., concur.1-09-2460 & 1-09-3000 (Cons.)

21 REPORTER OF DECISIONS – IL LINOIS A PPELLATE COURT

(Front Sheet to be Attached to Each Case) RICHARD PE AL, Plaintiff -Appella nt, v. CINDY L EE, KEN RIZ

ZO, and GLENVIEW PARK DI STRICT, Defendants-Appellants.

No. 1-09-2460 & 1-09-3000 (Cons.) Appella te Cour t of I llinois First District, FI

FTH Division July 30, 2010 (Give month, day

and yea r) JUSTIC E LAVI

N deliv ered the opinio n of the

court: Toomin , P.J., and Fi

tzge rald Sm ith concur dissent[s] Lower Court and T rial Judge(s) in form indicated in t he margin: Th e H ono rable Jennifer Duncan-Brice , Judge Presiding.

Indi cate if

att orney repre sent s APPELLANTS or APPELLEE S and i nclu de att orney s of

couns el. Indi cate the word NONE if n ot re prese nted. Attor neys for Plaintiff

-Appell ant : Fol ey & Lar dne r, LLP Richard Peal Miki Vucic T esija Katherine E. Licup 321 N. Clar

k St. Suit e 2800 Chica go, I L 60654 312.832. 4500 Attorneys for Defe ndan ts-App ellees: Laner , Muchi n, Dombrow, Becker, Levi n, & Tominbe rg, Ltd. Ken Rizzo, Cindy Lee, Glenview Park Joseph Gagliardo, Grego ry James, Jr., Jeffrey Fowler, David M oore Distri ct 515 N. Sta te St ., Suit e 2800. Chica go, I L 60654 312.467. 9800 Of Counsel Edward Dut ton Park Distr ict Risk Management Agenc y P.O. Box 4320 Wheaton, IL 60189 Please U se Fol low ing Form: Co mple te TITLE of Case

Docket No. COURT

Opini on Filed

JUSTI CES

APPEAL f

rom the Circuit

Ct. of Coo k Co unt y, Criminal Div.

For APPELLA

NTS, John Doe, of Chicago. For APPELLEES, Smith and S mith of Chica go, Joseph Brow

n, (of Counse l) Also add attorney s for third-party appellants or appellees.