KAPNER WOLFBERG ASSOCIATES v. THE STATE OF ILLINOIS (2002)

ORDER

This claim is back before the court on the Respondent's motion for a $15,980.95 award of attorney's fees as a sanction for the Claimant's egregious and continuing discovery abuse, which prompted this court to dismiss this long-pending case (see, order of March 8, 2001). This motion is cognizable under Illinois Supreme Court Rule 219, which this court has adopted, Rule 20 (74 Ill.Admin.Code 790.20); Claimant also cites Williams v. City of Chicago, 54 Ill.App.3d974, 370 N.E.2d 119 (1st Dist. 1977) in support of an award in this case.

There is little question that the Claimant's conduct of this litigation in this court was far more than merely non-cooperative in the discovery process, as our earlier order details (order of March 8, 2001). Essentially, the Claimant's chief executive officer (and principal), Mr. Sylvan Kapner, whose parol testimony was crucial to the Claimant's proposed interpretation of the underlying contract claim, refused to be deposed, and dragged out this case through several years of extensive documentary discovery and pretrial motions before finally communicating his flat refusal to participate in his own case in this State and, finally, to appear anywhere (when this court proposed a compromise to accommodate his purported health problems). Thus the corporate Claimant's key witness and principal refused to testify in his company's case after years of litigation efforts spawned by his claim, and without his supporting testimony (assuming arguendo that his testimony would have supported the contract construction on which the claim was based), claimant's contract theory lacked any support. The Claimant's conduct was vexatious and contumacious and smacks of worse.

This court awarded $11,258.20 to the Claimant on one count of its complaint, which had been adjudicated here by summary judgment. We refused to vacate the partial judgment with our dismissal of the remainder of this $1,222,733 contract claim because we found that the earlier partial judgment had not been affected by the later dilatory and vexatious conduct of the Claimant. (See, orders of August 4, 1998, March 8, 2001.)

The Claimant's belated motion to dismiss the remainder of this claim voluntarily, which arrived at this court not only after the Claimant's motion to dismiss as a sanction for discovery noncompliance, but after the time to respond to the motion had long elapsed and after this court had written its order of dismissal, does not mitigate the Claimant's misconduct in this case. Even if we took that motion (hyperliberally) to suggest a tardy recognition that the claimant had gone too far, that gesture was far too little and far too late.

The respondent now requests a sanctions award of $8,630.95 in costs and expenses (including $7,270 in copying charges for copying claimant's extensive work files that were directly involved with the contract-performance issues in this case) and $7,350 in attorney's fees (49.0 hours at $150 hourly rate), covering its efforts to secure and prepare for the disputed deposition and then to prepare the several motions seeking dismissal and sanctions, but not including the instant motion before us. These demands are supported, finally, by the claimant's counsel's amended affidavits, which we grant leave to file, which cure some omissions in counsel's original affidavits.

Our review finds that the requested hourly rate is quite reasonable for the work performed in the late 1990s for the State university, and the fees and costs overall are amply justified with the sole exception of the attorney time requested for preparation of the 1999 motion for a rule to show cause and the August, 2000 motion to dismiss, which we find excessive, particularly the time allotted to reviewing the case history by counsel, who is not only highly competent but was Respondent's counsel throughout this case and familiar with its history. We find that attorney fees of $5,500 are appropriate as an award. Upon scrutiny of the expenses, we approve $7,500 of the request.

That would bring the total sanctions award to $13,000 on our analysis of the Respondent's showing of fees and expenses. However, after extensive consideration, we have concluded that it is not appropriate to make a sanctions award in excess of the amount of the existing, but stayed, award to the Claimant. To make an award only nominally in excess of that amount against this foreign corporation would likely be fruitless in light of the status of the claimant company, its California domicile and apparent lack of Illinois assets and ongoing Illinois business; if the Claimant is not judgment-proof, a nominally excess award would only provoke further litigation to collect the excess that could not plausibly be cost-effective and would serve little purpose. We therefore find that an appropriate monetary sanction under all of the circumstances is $11,258.20, to fully offset the partial summary judgment award to the Claimant.

Wherefore, it is hereby ORDERED:

1. The Respondent is awarded the sum of $11,258.20 as a discovery abuse sanction against the Claimant: and is offset against the award granted herein;

2. The award of $11,258.20 for the Claimant is vacated; and

3. This claim is closed.

EPSTEIN, J.