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THIRD DIVISION
SEPTEMBER 8, 2004

1-03-0659

Plaintiffs, Thomas and Cathy Cirrincione, brought an action for property damage againstdefendants Altounian Builders (Altounian), Broadacre McKinley, Inc., ( Broadacre) and WestminsterGardens Limited Partnership (Westminster) (sometimes collectively defendants). On the second dayof a jury trial, the circuit court granted defendants' motion to dismiss the case with prejudice, findingthat plaintiffs had submitted altered evidence in responses to discovery and as exhibits in support ofa response to a dispositive motion. Defendants' subsequently filed fee petitions which the courtgranted, after a hearing, in the requested amount of $91,580.16.

Plaintiffs appeal, asserting the circuit court abused its discretion (1) in dismissing the case asa discovery sanction; and (2) in awarding defendants all attorney's fees and costs as a discoverysanction.

In their verified complaint plaintiffs allege that on June 1, 1999, they purchased fromWestminster a condominium unit to be constructed in Westminster Gardens, Lake Forest, Illinois. Broadacre, the manager of Westminster Gardens and a general partner of Westminster, hiredAltounian as its general contractor to construct the building. Subsequent to closing on the unit,plaintiffs hired Elegant Concepts, Ltd. (Elegant) to install a Brazilian cherrywood floor in theircondominium unit at a cost of $47,000.

The verified complaint alleged further that, in or about February 2000, Elegant, whileinstalling the floor, noticed a water leak in one of the ceilings in the unit. After being notified of theleak, Broadacre arranged for Altounian to enter the unit and repair the leak. In the process ofrepairing the leak, an Altounian employee damaged a sprinkler head in the ceiling, causing water toflood the unit and irreversible damage to the floor.

Count I of the two-count complaint alleged breach of contract by Broadacre andWestminster. Count II alleged negligence on the part of Altounian. Plaintiffs claimed that thedamage to the floor caused by the sudden water leak was "in excess of $60,000." Plaintiffs alsoclaimed damages in the amount of $8,000 per month in lost rent beginning on April 1, 2000, because,they were unable to move out of their current home and lease the premises as planned, due to therepair work.

On January 2, 2001, Broadacre and Westminster requested production of documents pursuantto Supreme Court Rule 214 (166 Ill. 2d R. 214) including documentation relating to their claimeddamages. Requests numbers eight and nine sought:

"8. All documentation, including, but not limited to appraisals,insurance records, bills, receipts, invoices, contracts, proposals, etc.which purport to itemize and/or assess the extent of the claimeddamage and/or the cost of labor and materials to repair the claimeddamage to plaintiffs' condominium unit, located at 333 EastWestminster, Unit 1C, Lake Forest, Illinois, relative to the occurrencespecified in plaintiffs' Verified Complaint.

9. All documentation, including, but not limited to bills,receipts, invoices, contracts, proposals, etc. from any date whatsoeverwhich relates to repairs and/or improvements to the plaintiffs'condominium unit located at 333 East Westminster, Unit 1C, LakeForest, Illinois."

Plaintiffs responded to request number eight with photocopies of the fronts and backs of five personalchecks paid to Elegant, totaling $46,000. On each of the checks, the words "floor replacement" or"replacement floor" appeared handwritten on the memo line in the bottom left-hand corner. Plaintiffsobjected, however, to request number nine, which sought documentation evidencing the amounts paidto Elegant for all other work it performed at the condominium unit. None of the parties pursued aruling on this objection.

On October 25, 2001, plaintiffs filed an amended verified complaint in which they revised theirtheory of liability against Broadacre and Westminster, now asserting a negligence claim based uponthe conduct of Altounian, who they alleged was defendants' agent or apparent agent. The amendedverified complaint also stated that plaintiffs paid $47,000 for the original installation of the wood floorand revised their damage claim to $42,000 for floor replacement, as well as their claim for rental lossto $16,000.

On January 15, 2002, Boradacre and Westminster moved for summary judgment, claimingthat neither was liable for plaintiffs' damages pursuant to the contract and warranty. Broadacre andWestminster further argued that Altounian was neither an actual nor apparent agent of Broadacre orWestminster.

On February 6, 2002, plaintiffs responded to defendants' motion for summary judgment, whichwas signed by plaintiffs' counsel. Photocopies of the five personal checks with the handwrittennotations "floor replacement" or "replacement floor" on the memo line were attached as an exhibitas evidence of their payment to Elegant for the replacement of the floor.

On February 27, 2002, the circuit court denied defendants' motion for summary judgment.

Trial began on February 3, 2003. At the start of trial, defendants moved to compelproduction of any documentation with respect to payments made to Elegant for work performed inthe unit in addition to the floor replacement work at issue or, alternatively, to bar plaintiffs frommaintaining a claim for damages based upon their failure to produce supporting documentation. Insupport of the motion, defense counsel argued:

"Finally, with respect to testimony, Mr. Cirrincione himselfdoes not testify that he paid $46,000. I think the amount he testifiesto is $42,000. And then we were given canceled checks in the amountof $46,000 which are several different checks that add up to thatamount which we have no knowledge as to what those checks wereactually for because, as Your Honor knows now, a lot of work wasgoing on and being performed by Elegant at this condo during thisperiod of time."

In response, plaintiffs' counsel acknowledged that the documents relating to other work beingperformed by Elegant were requested in discovery, but asserted that defendants' failure to act uponplaintiffs' objections to their production waived their rights to this documentation.

After hearing argument, the circuit court denied defendants' motion to compel and defendants'motion to bar plaintiffs from maintaining a claim of damages. The court agreed with plaintiffs thatdefendants' motion to compel was untimely. Defendants were barred from raising plaintiffs' non-production of documents pertaining to any other contracting work performed by Elegant at trial.

Plaintiffs' first two witnesses at trial were Everett Schaubert, Altounian's foreman for the latterstages of the construction of the condominium building, and Larry Floria, who issued the "secondopinion" about the damage to the floor and made the $42,000 bid for the work to replace thedamaged floor.

After the first day of trial proceedings, counsel for defendant Altounian advised the circuitcourt that he had subpoenaed Harris Bank to produce at trial its microfilm copies of the five checksplaintiffs had produced as evidence of payment to Elegant for the floor replacement and that arepresentative of Harris Bank was in the courtroom with the documents. Plaintiffs' counsel objectedon the ground that no notice of the subpoena had been given plaintiffs, contrary to their SupremeCourt Rule 237 (166 Ill. 2d R. 237) pre-trial request. The court ordered that the records be broughtin. The court reviewed in camera Harris Bank's microfilm copies of the five checks, on which it foundthat the memo line on each check was blank.

The following day, the circuit court raised the issue of plaintiffs' prior submission ofphotocopies of the five checks with the handwritten notations on the memo line as evidence ofpayment for repairs to their floors. The court then turned over to all counsel the copies of the checksthat had been delivered by Harris Bank pursuant to the trial subpoena for their review. Immediatelyafter counsels' review of the documents, defendants moved to dismiss the case with prejudice and forcosts and fees. Plaintiffs' counsel objected and stated that if asked, plaintiff Thomas Cirrincionewould "testify that when he received the checks back from the bank, he wrote for his own records,floor replacement in the memo line."

The circuit court made the following comments, among others, concerning the five checks: "I have evidence that has been altered, submitted to the Court by anattorney without distinguishing the fact that it has been altered in anyway. It was submitted to the Court as the original documents. It hasbeen tendered in response to discovery as the original documents. Itgoes to the major issue in this case which is how much it was for. Ihave no idea. There is nothing else that would support the allegationof a payment of $46,000 other than the testimony that now wouldeasily be called into question because of the altering of evidence thathad been submitted to this Court. If you can think of a sanction thatis less than what defendants have requested, I can't really come upwith one.

***

If there has been an alteration on a document that you'vesubmitted and filed with the Court, you have to let the Court knowabout it. You have filed a response to the motion for summaryjudgment in front of this Court. You have done that. And you haveattached to it those checks which have been altered. You did notpoint out to Judge McNamara that they had been altered. Nowherein your pleadings have you disclosed these alterations. Now, inresponse to the discovery, the altered checks were tendered to thedefendants. You just cannot say well then fine we'll go ahead with theunaltered checks if Counsel had not subpoenaed them. You wouldhave been presenting to the jury altered checks."

After argument by the parties, the court conducted a voir dire examination of plaintiff ThomasCirrincione at which he testified that after he received the checks back from the bank, he reviewedthem and made notes on the memo line of the checks to remind himself of the purposes for which thechecks were written. He customarily makes notes on checks after they are returned from the bankand has done so on many other occasions. In explaining why he never told anyone during the courseof the case that he had placed the notations on the memo lines after the checks were cashed, hestated: "Nobody asked the question, and they [the checks] were for floor replacement. So I didn'tthink of saying anything further."

The circuit court granted defendants' motion to dismiss, stating, in pertinent part:

"I have given this - these two motions quite a bit of consideration. Ialso considered the testimony of the plaintiff in his responses duringthe voir dire, and I find that his testimony defies logic; that the checksgo over several months, they come back in different packets, theycome back at different times.

The proper way - not the proper way, but the way that you -the plaintiff states that he did it so that he knew what he was payingfor, but that is what you do when you write the check, not when itcomes back after it's been cleared.

I find it - his testimony incredible, unreliable, and his testimonytoo convenient for the purposes of trial.

I also considered all alternatives and what sanctions could beimposed. These alterations to - or tampering with the evidence wasdone, it appears, to buttress the plaintiffs' case and mislead both thejury and the Court. In considering the alternatives, I have to considerwhat is fair to both the plaintiffs and the defendants, and I havereviewed all different types of possibilities of sanctions.

However, I find that the tampering with this evidence is socentral to the case and so undermines any additional evidence thatwould be submitted to this Court. It undermines prior evidence thatwas submitted. It undermines previous rulings on evidence during thecourse of the trial with witnesses that have already testified and left. And it undermines my rulings on motions in limine.

Therefore, I do not see any other sanction that can be enteredother than dismissing this case with prejudice, and I will award costsand fees to the defendants."

The court then dismissed the case with prejudice and granted defendants leave to file a petition forfees and costs.

At the subsequent hearing on defendants' fee petitions, plaintiffs' counsel orally objected tothe imposition of fees, but did not file a written motion to reconsider the order granting defendants'leave to petition for fees. Plaintiffs' counsel also waived the right to have an evidentiary hearing onthe fee petitions. The circuit court then awarded the fees as requested in the petitions and enteredjudgment thereon.

Plaintiffs argue that the circuit court's decision to dismiss the case with prejudice and awarddefendants all attorney fees and costs was far too severe a sanction and an abuse of the court'sdiscretion. Plaintiffs assert that the court erred in unilaterally determining Thomas Cirrincione'scredibility and in concluding that plaintiffs were attempting to mislead the parties and the court as tothe content of the evidence.

A court of review must give considerable deference to the circuit court's decision to imposesanctions; its decision will not be reversed absent an abuse of discretion. Burrows v. Pick, 306 Ill.App. 3d 1048, 715 N.E.2d 792 (1999). A court abuses its discretion if no reasonable person wouldtake its view (McClaughry v. Village of Antioch, 296 Ill. App. 3d 636, 695 N.E.2d 492 (1998)), orwhere it improperly applies recognized principles of law, or applies the wrong legal standards, orreaches conclusions unsupported by law. Boatmen's National Bank of Belleville v. Martin, 155 Ill.2d 305, 614 N.E.2d 1194 (1993); People ex rel. Graf v. Village of Lake Bluff, 206 Ill. 2d 541, 795N.E.2d 281 (2003); Save the Prairie Society v. Greene Development Group, Inc., 338 Ill. App. 3d800, 789 N.E.2d 389 (2003). The predicate to such deference is that the sanction decision is factuallyand legally informed and reasoned. See In re Estate of Smith, 201 Ill. App. 3d 1005, 559 N.E.2d 571(1990) (Smith).

In the present case, the record demonstrates that the circuit court relied upon factual errorsand misapplied established rules and legal principles, requiring outright reversal and remandment fora new trial.

It is difficult to ascertain whether the circuit court's sanction of dismissal was imposed underSupreme Court Rule 219(c) (Official Reports Advance Sheet No. 8 (April 17, 2002), R. 219(c), eff.July 1, 2002) (Rule 219(c)) or Rule 137 (155 Ill. 2d R. 137) (Rule 137). Defendants themselves areunsure, as evidenced by their argument claiming either a Rule 219(c) sanction or a Rule 137 violation. A sanction order, at the minimum, should specifically identify the rule under which the order wasentered, which the court here did not do, as well as the specific reasons for entry of the sanctionorder. See Smith, 201 Ill. App. 3d at 1008. The record here demonstrates the need for reversal andremandment whether either rule is applied.

The circuit court's factual justification for the dismissal was incorrect. The court stated thatthe "tampering" on the five checks "undermine[d] prior evidence that was submitted"; however,neither the checks nor any other evidence regarding plaintiffs' damages had been placed before thejury as of the time photocopies of the original Harris Bank checks were presented to the court. Next,the court claimed that the writing on the checks by Thomas Cirrincione "undermine[d] previousrulings during the course of the trial"; however, there had been no rulings pertaining to the checksthemselves. The only ruling made by the court regarding plaintiffs' payment for repairs was onewhich prohibited defendants from raising a claim that plaintiffs had not produced evidence ofpayments to Elegant for other work it performed in the condominium unit. The reason for this rulingwas that defendants previously had waived this issue during discovery; it had nothing to do with thefive checks. The court also believed that the writing on the five checks related to "witnesses that havealready testified and left," another factual assertion unsupported by the record. As of the time thephotocopies of the five Harris Bank checks came to light, only two witnesses had testified, EverettSchaubert, a former Altounian employee, and Larry Floria, a general contractor and consultant whoinvestigated the damage to the floor; neither testified in regard to plaintiffs' monetary damages,although Floria testified to the amount he bid to complete the work.

The circuit court's decision also misapprehends the applicable law. The court continuallyapplied the words "alter," and "alteration," to the facts of this case. Clearly, these terms are usederroneously in connection with notations made upon five checks by Thomas Cirrincione, payable toElegant Concepts, Ltd., which was neither a party nor related to defendants here. The checks werenegotiated by Elegant, not defendants here, and were paid by plaintiffs' bank to Elegant, notdefendants here. The checks, instead, were submitted by plaintiffs as some evidence of payment forrepairs to a floor allegedly damaged through defendants' negligence. Defendants were neveridentified as, nor claimed to be, holders in due course of the five checks.

Checks are negotiable instruments and are subject to the provisions of the UniformCommercial Code - Negotiable Instruments (the Code) (810 ILCS 5/3-101 et seq. (West 2000)). Under the Code, there cannot be an alteration on a check, leading to the conclusion of fraud, wherethe party claiming alteration or fraud is not a party to the subject instrument, as is the case here. See810 ILCS 5/3-407 (West 2000). As the supreme court noted, in a case in which material alterationof notes after execution was claimed,

"[t]he Illinois code comment to this section discusses what wouldconstitute a fraudulent alteration of a note:

'This paragraph avoids only an alteration by the holder which is "bothfraudulent and material." The term "fraudulent" probably requires afinding that the alteration has attempted to impose an obligation orobligations upon the maker or other party against whom enforcementis sought additional to his obligation on the instrument at the time hesigned it. *** Where, however, the alteration either does not changeor lessen the obligation of the maker or other party, it is notfraudulent.' " (Emphasis added.) Kramer v. Exchange National Bankof Chicago, 118 Ill. 2d 277, 283, 515 N.E.2d 57 (1987) citing Ill.Ann. Stat., ch. 26, par. 3-407, Illinois Code Comment, at 250-51(Smith-Hurd 1963).

In the present case, as earlier noted, defendants were neither parties to the five checks on whichThomas Cirrincione made his post-payment notes, nor holders in due course. They never saw thechecks until litigation over their failure to pay for damages ensued. As to defendants, then, and thislitigation, there was no alteration or fraud under the statute governing these matters. See alsoHutcheson v. Herron, 131 Ill. App. 2d 409, 266 N.E.2d 449 (1970); Northwestern National InsuranceCo. of Milwaukee, Wisconsin v. Lutz, 71 F.3d 671 (7th Cir. 1995).

With respect to the notations made by Thomas Cirrincione on the checks cancelled byplaintiffs' bank after payment to the payees, photographic copies of the originals subpoenaed fromthe bank, together with the checks returned by the bank to Thomas Cirrincione upon which he latermade his notations, posed questions of credibility to be considered by the jury as factfinders, not thejudge; what weight, if any, should have been given to these documents with respect to plaintiffs' claimfor damages, was within the jury's province. Amann v. Frederick, 257 N.W.2d 436 (N.D. 1977).

Lastly, the entry of a "death sentence" sanction, dismissal, was grossly inappropriate underthe factual law, and the rules. No affirmatively "damaging evidence" to plaintiffs' case was concealedby plaintiffs. At worst, the two sets of checks raised some question as to plaintiffs' credibility in theirrepresentation that they paid Elegant $46,000 for a replacement floor. Defendants here possessedno evidence that plaintiffs did not pay Elegant for a replacement floor. The fact that the subpoenaedphotocopied checks raised a question as to Thomas Cirrincione's conduct and motivation in makingthe notations on the checks after they were paid and he received them back from the bank does not,without more, demonstrate that this was a baseless lawsuit. Although not formally admitted byAltounian, liability was certainly not disputed, for its employee, Angel Lador, admitted that henegligently, if accidentally, activated the sprinkler head on the ceiling of plaintiffs' living room whichdamaged plaintiffs' Brazilian cherrywood floor. Arguably, Altounian caused some damage toplaintiffs for which plaintiffs were entitled to compensation. Plaintiffs had a good faith lawsuit againstdefendants based upon defendants' negligent conduct.

Significantly, there were two plaintiffs involved in this lawsuit, Thomas Cirrincione, and hiswife Cathy Cirrincione, co-owner of the subject property. Nothing in the record reveals any act byCathy which would justify her deprivation of whatever damages were caused by defendants to herinterests in the property.

Here, the circuit court had many options available to it to allow the trial to go forward evenin the face of issues involving Thomas Cirrincione's conduct in the five check production. First, thecourt could have ordered a redaction of the memo line on each cancelled check before theirsubmission to the jury. Alternatively, the court could have denied admission into evidence of thechecks entirely, and required proof of damages by some other form of evidence. Further, the courtcould have precluded testimony by Thomas Cirrincione. Plaintiffs' counsel assertedly advised thecourt that Joseph Faraone, Elegant's president, who was on the witness list, would have testified thathe received the payments for the replacement floor he installed. Faraone's name was included on alist of witnesses to be read to potential jurors and his testimony was referenced during arguments onmotions in limine. Therefore, from an evidentiary perspective, the checks took on a lesser role, forhad the jury heard all the testimony, there would have been direct evidence both of the payment byplaintiffs and of the receipt of payment for the work performed by Faraone, which would have beensufficient to establish plaintiffs' damages. See Saunders v. Wilson, 114 Ill. App. 2d 380, 382, 253N.E.2d 89 (1969) ("it is not the bill which in itself provides the proof. It is the uncontrovertedtestimony of the plaintiff under oath that the repairs were necessitated by the accident, that therepairman was in the business of making such repairs, and that he paid the bill. Such a transactionis not suspect. *** Testimony as to the fact of payment is *** admissible."); Ross v. Cortes, 95 Ill.App. 3d 772, 420 N.E.2d 846 (1981).

The circuit court's decision here to take the determination of the credibility of ThomasCirrincione, the most important witness in the case, out of the hands of the jury and to simply findthat (1) he was not credible; and (2) he had no right to take his and Cathy Cirrincione's case to trialat all, far exceeded the considerable authority afforded to trial courts. Wakefield v. Sears, Roebuckand Co., 228 Ill. App. 3d 220, 592 N.E.2d 539 (1992) (Wakefield). The court's decision here restedsquarely on her disbelief of Thomas Cirrincione's explanation as to his practice in writing on thechecks after he received them back from the bank for purposes of his own record keeping. Nothingwas mentioned as to Cathy Cirrincione's right to trial. As in Wakefield, there was no "showing ofwrongdoing" that plaintiffs were "guilty of a 'deliberate, contumacious or unwarranted disregard ofthe court's authority.'" Wakefield, 228 Ill. App. 3d at 227, citing White v. Henrotin Hospital Corp.,78 Ill. App. 3d 1025, 1028, 398 N.E.2d 24 (1979). It was merely the court's belief that ThomasCirrincione was being untruthful as to why he made postpayment notations on the five checks. Asin Wakefield, this decision was one which belonged to the jury. After evidence that plaintiffs weredamaged by defendants' conduct and Thomas Cirrincione explained his own conduct, the controversybecame exclusively an issue of credibility, which the court should not have usurped.

Sanction orders are not authorized to punish the wrongdoer. A "just order under Rule 219(c)is one which, to the degree possible, ensures both discovery and trial on the merits." Wakefield, 228Ill. App. 3d at 226. Dismissal with prejudice is "not encouraged." Cedric Spring & Associates, Inc.v. N.E.I. Corp., 81 Ill. App. 3d 1031, 1035, 402 N.E.2d 352 (1980). There is a "strong policy whichfavors an adequate hearing of a litigant's claim on the merits." Jeffrey M. Goldberg & Associates,Ltd. v. Collins Tuttle & Co., Inc., 264 Ill. App. 3d 878, 885, 637 N.E.2d 1103 (1994). The circuitcourt abused its discretion in dismissing the case as a discovery sanction. The issue of attorney's feesmust be reassessed at the conclusion of the trial, if still appropriate.

Accordingly, the circuit court of Cook County's order in its entirety is reversed and the causeremanded for trial.

Reversed and remanded.

THEIS, J., concurs.

QUINN, J., dissents.

 

JUSTICE QUINN, dissenting:

I respectfully dissent. I believe a review of the record shows that the circuit court imposedsanctions pursuant to Rule 137. Rule 137 may be the basis for sanctions despite the lack of the Rule'sspecific mention in the order. Duignan v. Lincoln Towers Insurance Agency, Inc., 282 Ill. App. 3d262 (1996). Here, although the circuit court did not set out its reasons for the sanctions in the writtenorder, it did make its reasons for the sanction of dismissal and for attorney fees and costs more thanclear on the record. The court made specific reference to the pleadings that contained the alteredevidence, signed by counsel and filed in court. The court also specifically referenced Supreme CourtRule 137 (115 Ill. 2d R. 137) (Rule 137) on the record. The court's findings were expresslyincorporated into the judgment order by reference.

"The decision to impose sanctions under Rule 137 is committed to the sound discretion of thecircuit judge, and that decision will not be overturned unless it represents an abuse of discretion.[Citations.]" Dowd & Dowd, Ltd. V. Gleason, 181 Ill. 2d 460, 487 (1998). "[W]e must primarilydetermine whether the trial court's decision was informed, based on valid reasons, and whether thedecision followed logically from the application of the reasons stated." Thomas Hake Enterprises,Inc. v. Betke, 301 Ill. App. 3d 176, 182 (1998).

Defendants Broadacre and Westminster argue that the "signing of pleadings" requirementunder Rule 137 occurred when plaintiffs filed a response to defendants' motion for summary judgmenton February 6, 2002, signed by plaintiffs' counsel. Copies of the five checks were attached as anexhibit to this pleading. Plaintiffs asserted in the response that the fronts and backs of the checks toElegant were evidence of their payment for the replacement of the floor.

The majority correctly point out that the trial court was in error when she made a finding thatsubmission of the altered checks "undermine[d] previous rulings on evidence during the course of thetrial with witnesses that have already testified and left." However, tendering the altered checkscertainly had an impact on the denial of defendants' motions for summary judgment and for morespecific discovery, and on the circuit court's rulings on motions in limine.

Relying on section 3-407 of the Uniform Commercial Code (810 ILCS 5/3-407 (West 2000)),the majority assert "there was no alteration or fraud under the statute governing these matters." During the discussion in chambers which took place shortly after the circuit court tendered copies ofthe five checks in question which did not contain the language "payment for the floor," the circuitcourt pointed out that plaintiff had not disclosed to it or any prior court the fact that the checks hadbeen altered. Plaintiff's counsel responded:

"[PLAINTIFF'S ATTORNEY]: I understand everythingyou've said, Your Honor. My only response in that regard is that thefact that these checks were altered in the manner they were, the factsare the facts. We can't change that they were altered. But at no pointwas a representation made...

THE COURT: Counsel, was there a clarification made eitherto the court or to counsel?

[PLAINTIFF'S ATTORNEY]: No, there was not."

The Court subsequently continued:

"THE COURT: Counsel, I would like to also put on therecord that when you and your client were in my chambers and wewere talking and when all counsel were in chambers prior to juryselection and during discussions on this case, these checks weretendered to me. And they were shown to me. And they were referredto as, "see, it says here on the checks, payment for the floor." And,"see, here, judge, the dates correspond with the floor, and it says herenoted his payment for the floor."

During that same discussion, plaintiff's counsel stated:

"[PLAINTIFF'S ATTORNEY]: I can't say any more than Ihave already said about the checks. It's a terrible thing. I wish that Ihad some knowledge of it because we wouldn't be here today talkingabout it like this if I had some knowledge of it. But I didn't."

I do not believe that the majority's reliance on the UCC and the holding in Kramer v.Exchange National Bank, 118 Ill. 2d 277 (1987) provide bases for reversing the circuit court in theinstant case. Neither party asserted at trial, or before this court, that the UCC had anything to dowith this case. Further, Kramer addressed what effect an alteration made by the holder of a note hadon the validity of the note. This is clearly the type of transaction over which the UCC would control. In the instant case, plaintiff's counsel conceded that the checks had been altered and the circuit courtcorrectly found that both she and the previously assigned circuit court judge had made rulingsregarding summary judgment, discovery and motions in limine based on plaintiffs' counsel'sarguments which were themselves based on the alterations made to the checks. While plaintiff'sactions arguably were not violative of the UCC, this fact has no bearing on the issue of whethertendering the altered checks was violative of Supreme Court Rule 137.

Finally, it is important to note that the copies of the five checks were the only documentaryevidence in this case that purported to establish with any sort of clarity plaintiff's damages. Here, the original complaint sought damages "in excess of $60,000," the plaintiff testified at his depositionthat he paid $42,000 to replace the floor, the amended verified complaint sought $42,000, the fivealtered checks totaled $46,000. Plaintiffs' successive counsels had fought defendants' discoveryrequests for more documents relating to the amount paid for the repairs to the floor. As the circuitcourt's decision was informed, based largely on valid reasons and the decision followed logically theapplication of the reasons stated, I would affirm the circuit 's dismissal of plaintiffs' case.

The majority raise an excellent point regarding Mrs. Cirrincione's interest in this lawsuit asproviding another basis to reverse the circuit court's dismissal. However, plaintiffs never raised thisissue in the circuit court proceedings, nor did they raise this issue on appeal. As an argument notraised in the trial court, and presented for the first time on appeal is waived, I would find thatplaintiffs waived this issue by failing to raise it at all. See Johnson Press of America, Inc. v. NorthernInsurance, 339 Ill. App. 3d 864, 791 N.E.2d 1291 (2003).

The majority make some excellent suggestions as to alternative remedial actions which thecircuit court could have taken rather than dismissal with prejudice. Similarly, plaintiffs' trial counsel'ssuggestion of instructing the jury pursuant to Illinois Pattern Jury Instruction, Civil No. 5.01 (Failureto Produce Evidence or a Witness)(2000 ed. Supp. 2003) was also creative. To these suggestionsI would add that the trial court could have granted a mistrial, with plaintiffs ordered to pay the costsand attorney fees incurred by defendants during the truncated trial. I am aware that trial courts areextremely reluctant to grant mistrials as they are perceived as resulting in a waste of effort andresources. However, as shown again in this case, courts of review are similarly reluctant to affirmthe dismissal of lawsuits with prejudice as a sanction, except in the most extreme circumstances. Thesituation faced by the circuit court in the instant case is, unfortunately, an extremely common one. When a party violates the Supreme Court Rules, the circuit court has discretion to formulate aremedy which should reflect the underlying purpose of the Rule. Boland v. Kawasaki MotorsManufacturing Corp., USA, 309 Ill. App. 3d 645, 652-53, 722 N.E.2d 1234 (2000). The partiesshould assist the circuit court in this determination by suggesting workable solutions rather thanmerely asking for dismissal on the one hand, or arguing that no remedial action is needed on theother. To accomplish this, judges and attorneys should acquaint themselves with the variousalternative remedies available. Of course, the best way to avoid this type of situation is for the partiesto engage in full and timely discovery.

As I agree with the majority that this was a good faith lawsuit, I would reverse the circuitcourt's order granting defendants all of their attorney fees and I would remand this case for anevidentiary hearing as to this issue. Of course, this is yet another remedy which the plaintiffs did notrequest.