Fabian v. Norman

Plaintiffs, Lewis F. Fabian and Judith Fabian, appeal from an order of the circuit court which vacated a judgment, entered against defendants, Michael A. Norman and Anita Norman, as a sanction for nonattendance at a discovery deposition, and which also denied plaintiffs' motion for judgment on the pleadings. Plaintiffs contend that defendants were not entitled to a vacatur of the judgment for lack of due diligence and a meritorious defense, and that judgment should be entered for plaintiffs on their motion for judgment on the pleadings. On November 1, 1983, plaintiffs filed a complaint for breach of contract and conversion, alleging that the defendants had conditionally agreed to sell plaintiffs a fast food trailer and thereafter refused to execute a written agreement and repossessed the trailer; plaintiffs sought actual and punitive damages. On March 15, 1984, and on April 4, 1984, notice was served on M. Steven Krupnick, defendants' attorney, for the discovery depositions of the defendants on March 28, 1984, and April 27, 1984, respectively. On both occasions, Krupnick advised plaintiffs' attorney that he would not be available for the depositions due to emergency hearings in Chicago. Plaintiffs scheduled another discovery deposition for May 16, 1984, at 2 p.m. and served notice thereof on defendants' attorney. At 10 a.m. on May 16, plaintiffs' attorney telephoned attorney Krupnick's office and was informed by his secretary that she would attempt to contact attorney Krupnick and verify that the depositions would proceed as scheduled; however, attorney Krupnick never responded, and when defendants failed to appear for the deposition, plaintiffs moved the trial court to impose sanctions.