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FOURTH DIVISION
November 14, 2002

PRESIDING JUSTICE THEIS delivered the opinion of the court:

Plaintiffs Arlanda King and Tamika Duprey brought this negligence action to recoverdamages from injuries allegedly sustained in an automobile accident in which they werepassengers in a vehicle operated by defendant Dianna McGruder Greene⁽¹⁾ that collided with avehicle operated by defendant Kevin Clay. After plaintiffs won the arbitration, Clay filed anotice of rejection of the arbitration award and a motion for summary judgment. The trial courtgranted his summary judgment motion. On appeal, plaintiffs assert that the trial court abused itsdiscretion in imposing sanctions against them and erred in granting Clay's motion for summaryjudgment. Additionally, plaintiffs argue that the trial court violated one of its local rules bygranting Clay's motion to compel discovery after the discovery closure date. We agree thatsummary judgment was improperly granted in this case and reverse and remand for furtherproceedings.

Plaintiffs filed their complaint on March 8, 2000. On May 12, 2000, Clay propoundedinterrogatories, a notice of deposition for July 11, 2000, a request for production of documentsand a notice to produce plaintiffs at arbitration and at trial. On May 18, 2000, plaintiffs servedClay with interrogatories, a notice of deposition for July 11, 2000, and a request for production ofdocuments. On October 31, 2000, Clay served plaintiffs with a notice of deposition forNovember 30, 2000. On December 19, 2000, Duprey filed her answer to Clay's interrogatories. The trial court ordered that discovery be completed by January 26, 2001, and assigned the causeto mandatory arbitration.

On January 22, 2001, Clay filed his answers to plaintiffs' interrogatories and filed amotion to compel plaintiffs to answer outstanding written discovery and/or to appear for adiscovery deposition. Clay did not request sanctions. The trial court entered an order on January30, 2001, compelling plaintiffs to answer all written discovery by February 13, 2001, and toappear for a deposition within 21 days. The trial court's January 30 order also contained thefollowing boilerplate language:

"Failure to comply with the specific terms of this order will result in theplaintiff being barred from testifying and presenting any evidence at thearbitration and/or trial of this matter.

The above stated sanction shall remain in effect until removed by order ofcourt upon motion by the party against whom the sanction applies." (Emphasis inoriginal).

King filed his answers to Clay's interrogatories on February 16, 2001.

On March 30, 2001, an arbitration hearing was held with plaintiffs and Clay present. Although the record is silent on the matter, plaintiffs represent in their brief that they testified,were cross-examined and presented evidence at the arbitration and Clay concedes thisrepresentation. The arbitration award states that the hearing lasted about 90 minutes. Thearbitrators found in favor of King in the amount of $4,272.88 and in favor of Duprey in theamount of $4,757.88. After determining that "no evidence" was presented against McGruderGreene, the arbitrator found in her favor. Clay filed a timely notice of rejection of the arbitrationaward on April 6, 2001.

On April 27, 2001, Clay filed a motion for summary judgment. He stated in his motionthat "[p]laintiffs did not comply with the specific terms of the January 30, 2001 order" because"[p]laintiffs were not presented for deposition before February 20, 2001." Consequently,"[p]laintiffs are barred from testifying and presenting any evidence at trial, therefore no issue ofmaterial facts exists, and judgment should be entered for the [d]efendant as a matter of law."

Plaintiffs responded and requested that the trial court deny Clay's motion, vacate the orderof January 30, 2001, and set a date for plaintiffs' depositions. Plaintiffs stated that they were"ready to proceed for deposition but require[d] defense counsel's law firm to give [them] a date toappear." Attached to plaintiffs' response was the sworn affidavit of the deposition clerk forplaintiffs' attorney. She attested that "defense counsel never gave [her] another date [after theNovember 30, 2000, notice] for the plaintiffs to come in for deposition despite the entry of theJanuary 30, 2001 order."

In his reply, Clay stated that "[p]laintiffs' counsel made no effort to present [p]laintiffs fordeposition" after the trial court entered the January 30, 2001 order and attached the affidavit ofhis attorney's deposition clerk, who corroborated that statement. The trial court granted Clay'smotion for summary judgment and entered judgment in favor of Clay and against plaintiffs. Therecord does not contain a transcript of this hearing and the written order is silent as to the court'sreasoning. Additionally, the court did not create a separate order explaining in detail the reasonsand basis for the sanctions imposed against plaintiffs.

Plaintiffs filed a motion to reconsider and asserted that "discovery closed in this case onJanuary 26, 2001, and at the time of entry of the January 30, 2001, order, discovery was alreadyclosed." Plaintiffs stated that while the January 30, 2001 order required plaintiffs to appear fordepositions within 21 days, Clay never gave them a date to appear for their depositions duringthat time. Plaintiffs attached King's affidavit that said they "appeared at the arbitration hearingand [were] willing to appear for deposition if [the trial court] deem[ed] it appropriate." The trialcourt denied plaintiffs' motion. Plaintiffs then filed this timely appeal.

In granting Clay's motion for summary judgment, the trial court apparently made tworulings. First, it imposed sanctions against plaintiffs, presumably under Supreme Court Rule219(c), for failing to give their depositions before the date specified in the January 30, 2001order. 166 Ill. 2d R. 219(c). We note that neither party questions the trial court's authority toimpose sanctions on its own motion and, thus, decline to address that issue. Second, based on itssanction barring plaintiffs from testifying or presenting evidence at trial, the trial court grantedsummary judgment to Clay because no genuine issue of material fact remained. We will addresseach ruling separately.

While plaintiffs contend that the trial court abused its discretion by barring them fromtestifying and presenting evidence at trial as a sanction for their alleged failure to give theirdepositions, they do not address the issue of whether they violated the court's order. Accordingly, without addressing the issue of whether plaintiffs violated the court's order, we willdetermine what, if any, sanction was appropriate for an assumed violation of the rules ofdiscovery.

Rule 219(c) authorizes the trial court, "on motion," to impose a sanction upon any partywho unreasonably refuses to comply with any provisions of the discovery rules or any orderentered pursuant to these rules. 166 Ill. 2d R. 219(c); Shimanovsky v. General Motors Corp.,181 Ill. 2d 112, 120, 692 N.E.2d 286, 289 (1998). The decision to impose a sanction is withinthe discretion of the trial court, and thus, only a clear abuse of that discretion justifies reversal. Shimanovsky, 181 Ill. 2d at 120, 692 N.E.2d at 289. Because the purpose of these sanctions is toeffect discovery rather than punish a party, a "just order" of sanctions under Rule 219(c) is onethat, to the degree possible, insures both discovery and a trial on the merits. Buffington v.Yungen, 322 Ill. App. 3d 152, 154, 748 N.E.2d 844, 847 (2001). A trial court should use thefollowing factors in determining what sanction, if any, to impose: (1) the surprise to the adverseparty; (2) the prejudicial effect of the proffered testimony or evidence; (3) the nature of thetestimony or evidence; (4) the diligence of the adverse party in seeking discovery; (5) thetimeliness of the adverse party's objection to the testimony or evidence; and (6) the good faith ofthe party offering the testimony or evidence. Shimanovsky, 181 Ill. 2d at 124, 692 N.E.2d at291. No single factor is determinative. Shimanovsky, 181 Ill. 2d at 124, 692 N.E.2d at 291.

Applying these factors to the present case, we find that the trial court abused its discretionin preventing plaintiffs from testifying and presenting any evidence at trial. First, Clay cannotclaim surprise due to plaintiffs' failure to give their depositions. Once plaintiffs testified at thearbitration hearing and were cross-examined by Clay, Clay knew plaintiffs' version of events andtheir proposed trial testimony and had an opportunity to develop additional information. Thus,there was no need to take plaintiffs' depositions. Next, the prejudicial effect and nature of theevidence the trial court refused to allow were great. Plaintiffs were prevented from presentingany evidence or testifying in support of their negligence action at trial. After imposing thissanction, the trial court granted summary judgment to Clay, which essentially dismissed theirclaims with prejudice. Such a drastic sanction is to be invoked only in those cases where theparty's actions show a deliberate, contumacious or unwarranted disregard of the court's authority. Shimanovsky, 181 Ill. 2d at 123, 692 N.E.2d at 291. Plaintiffs did not exhibit such behavior inthis case.

Moreover, Clay did not show sufficient diligence in seeking plaintiffs' depositions. Supreme Court Rule 206(a) provides that "[a] party desiring to take the deposition of any personupon oral examination shall serve notice in writing a reasonable time in advance on the otherparties. The notice shall state the time and place for taking the deposition." 188 Ill. 2d R. 206(a). As Clay was the party desiring to take plaintiffs' depositions, he was required to schedule thedepositions and provide plaintiffs with notice. After the entry of the January 30 order, Claynever served plaintiffs with notices for their depositions. Contrary to Clay's assertion, plaintiffshad no obligation to present themselves for depositions absent Clay's request.

Next, we find that Clay's objection to plaintiffs' presentation of testimony and evidencewas not timely. The January 30, 2001 order required plaintiffs to give their depositions beforeFebruary 20, 2001. Two months after the entry of the January 30 order and five weeks after theFebruary 20 deadline, plaintiffs attended and participated by testifying and presenting evidence atthe arbitration hearing. During this hearing, Clay apparently never objected to plaintiffs'participation or raised the alleged discovery violation. Moreover, he did not bring this allegedviolation to the trial court's attention until nearly one month after the arbitration hearing. Clay'sselective use of the January 30 order only after he lost the arbitration demonstrates that hisdelayed objection was not timely.

Lastly, we conclude that plaintiffs fairly demonstrated that they acted in good faith. Therecord reveals that Clay scheduled plaintiffs' depositions only twice, once on July 11, 2000, andagain on November 30, 2000. Plaintiffs' attorney's deposition clerk averred that defense counselnever submitted another notice for plaintiffs' depositions even after the entry of the January 30,2001 order. In their response and motion to reconsider, plaintiffs repeatedly stated that they werewilling and available to give their depositions and had not done so only because they neverreceived another notice for the depositions from Clay. Thus, plaintiffs acted in good faith.

We hold that the trial court's sanction of prohibiting plaintiffs from presenting anyevidence or testimony at trial was unreasonable and an abuse of the court's discretion. Next, wemust address whether the trial court correctly granted Clay's motion for summary judgment basedon this sanction.

We apply de novo review to the trial court's granting of a motion for summary judgment. Jones v. Chicago HMO Ltd. of Illinois, 191 Ill. 2d 278, 291, 730 N.E.2d 1119, 1127 (2000). Summary judgment is properly granted when the pleadings, depositions, admissions andaffidavits show that there is no genuine issue of material fact and that the movant is entitled tojudgment as a matter of law. Jones, 191 Ill. 2d at 291, 730 N.E.2d at 1127. Summary judgmentis a drastic measure and should only be permitted when the right of the movant is clear and freefrom doubt. Jones, 191 Ill. 2d at 291, 730 N.E.2d at 1127.

In his motion for summary judgment, Clay relied exclusively on plaintiffs' discoveryviolation and the trial court's imposition of sanctions preventing plaintiffs from testifying orpresenting evidence at trial. Because plaintiffs could not present any evidence, Clay argued, noissues of material fact existed and Clay was entitled to summary judgment. By granting themotion without a written explanation, the trial court apparently agreed. However, as discussedabove, the trial court's sanction was an abuse of discretion, and thus, genuine issues of materialfact remain. Accordingly, we find that the trial court erred in granting Clay's motion forsummary judgment.

Due to our determination of this issue, it is not necessary for us to consider plaintiffs'claim that the trial court violated its local rule regarding the discovery cutoff date.

For all the foregoing reasons, the judgment of the circuit court is reversed and this causeis remanded for further proceedings.

Reversed and remanded for further proceedings.

HARTMAN and GREIMAN, J.J., concurring.

1. McGruder Greene was served by substitute service, but never filed an appearance. While she did not appear at the arbitration hearing, the arbitrator found in her favor because noevidence was presented against her. Additionally, McGruder Greene did not bring either themotion to compel discovery or the motion for summary judgment, which are the subject of thisappeal. Thus, McGruder Greene is not involved in this appeal.