                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




                  Cronin v. Kottke Associates, LLC, 2012 IL App (1st) 111632




Appellate Court            WALTER S. CRONIN and RONALD L. ANDERSON, Plaintiffs-
Caption                    Appellants, v. KOTTKE ASSOCIATES, LLC, an Illinois Limited
                           Liability Company, and JOSEPH VANDEPUTTE, Defendants-
                           Appellees.


District & No.             First District, First Division
                           Docket No. 1-11-1632


Filed                      July 23, 2012


Held                       In a complex action arising from a dispute over an alleged partnership to
(Note: This syllabus       invest in commodities, the trial court had authority to enter a sanction of
constitutes no part of     dismissal with prejudice based on plaintiffs’ claimed disregard of the trial
the opinion of the court   court’s orders for scheduling, but even though plaintiffs’ counsel may
but has been prepared      have acted without full respect for the trial court’s procedures, the
by the Reporter of         dismissal of plaintiffs’ action with prejudice was a clear abuse of
Decisions for the          discretion where the conduct of plaintiffs’ counsel was not “deliberate,
convenience of the         contumacious, or unwarranted disregard” of the court’s authority, there
reader.)
                           was not a pattern of misconduct, and the dismissal with prejudice was the
                           first sanction imposed on plaintiffs, contrary to case law requiring
                           progressively harsher sanctions.


Decision Under             Appeal from the Circuit Court of Cook County, No. 06-CH-12756; the
Review                     Hon. Rita M. Novak, Judge, presiding.



Judgment                   Reversed; cause remanded.
Counsel on                  SNR Denton US LLP, of Chicago (William M. Gantz, of counsel), for
Appeal                      appellants.

                            Vanasco Genelly & Miller, of Chicago (Daniel A. Genelly and Matthew
                            M. Showel, of counsel), for appellees.


Panel                       JUSTICE ROCHFORD delivered the judgment of the court, with
                            opinion.
                            Presiding Justice Hoffman and Justice Karnezis concurred in the
                            judgment and opinion.


                                              OPINION

¶1          Plaintiffs appeal from the dismissal of their suit with prejudice, pursuant to Illinois
        Supreme Court Rule 219(c)(v) (Ill. S. Ct. R. 219(c)(v) (eff. July 1, 2002)), as a sanction for
        their failure to comply with a scheduling order regarding final trial preparation procedures
        as set forth in a standing order of the trial court. For the reasons that follow, we reverse.

¶2                                         I. BACKGROUND
¶3          In the 1990s, plaintiffs Walter S. Cronin and Ronald L. Anderson, commodity brokers,
        became associated with defendant Kottke Associates, LLC (Kottke), a commodity trading
        firm founded by Neal Kottke. In a two-count complaint, filed on December 11, 2006,
        plaintiffs claimed they formed a partnership with defendant Kottke and defendant Joseph
        Vandeputte, a commodities analyst, for the purpose of investing in agricultural commodities.
        According to the complaint, plaintiffs together were to receive one-third of the partnership’s
        profits. Plaintiffs asserted that defendants wrongfully reduced their interest in the profits and
        caused a dissolution of the partnership. Plaintiffs claimed defendants breached their fiduciary
        and loyalty duties and “unjustly enriched” themselves. Plaintiffs sought recovery of lost fees
        of $2,536,000, plus interest, for the period ending May 2006, and an accounting for monies
        owed plaintiffs after June 1, 2006. The complaint included a jury demand. In their answers,
        defendants denied that they had formed a partnership with plaintiffs.
¶4          Plaintiffs were represented by John J. McHugh III, an Ohio lawyer admitted pro hac vice,
        and local attorney, Christopher Berghoff of Berghoff & Berghoff, Ltd. Defendants were
        represented by the law firm of Vanasco, Genelly & Miller.
¶5          The parties engaged in extensive written and oral discovery. While defendants did not
        bring a discovery compliance motion against plaintiffs, nor was a sanction order entered
        against plaintiffs for any type of discovery violation, defendants later claimed there were
        some missteps during discovery which supported their request for the sanction of dismissal
        with prejudice. For example, and without factual proof in the record, defendants maintained

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       plaintiffs had produced documents during discovery in a manner which violated procedural
       rules. Further, while plaintiffs initially provided defendants with unexecuted responses to
       requests to admit within an agreed time period, they were later granted leave to serve signed
       responses. Additionally, plaintiffs complied with expert discovery after having been granted
       extensions of time to do so. Finally, defendants moved to quash subpoenas for documents
       which plaintiffs issued and served upon 25 individuals or entities, including current or former
       Kottke customers. While the trial court granted the motion, it also allowed plaintiffs leave
       to reissue subpoenas with certain limitations.
¶6         The parties filed cross-motions for summary judgment. Each motion was separately and
       fully briefed. The parties presented a significant amount of written material as to the cross-
       motions, which spans six of the nine volumes contained in the original record on appeal. This
       material includes depositions, pleadings, answers to written discovery, and other exhibits.
       Plaintiffs argued that there was no dispute that they had formed a partnership or joint venture
       with defendants and sought a judgment for lost profits in the amount of $2,599,258, plus
       interest, for defendants’ claimed breaches of fiduciary duties and a “full and complete
       accounting.” Defendants argued that the undisputed facts established a partnership had not
       been formed and, even if there had been a partnership, the partnership had ended and
       plaintiffs were owed no additional compensation. The trial court, after a hearing, denied the
       motions.
¶7         A September 21, 2010, order set the case for a settlement conference to be held on
       October 29, 2010. This order did not refer to a standing order. However, the parties agree that
       the trial court had a standing order which, as set forth in that order, “establish[ed] general
       pretrial and trial rules and procedures intended to aid attorneys and litigants.” The provisions
       of the standing order relating to settlement conferences required parties to serve a
       memorandum “[n]o later than three days before the initial pretrial settlement conference” that
       was to include:
           “(1) a statement of the case; (2) an outline of the causes of action, defenses and
           counterclaims; (3) a statement of the legal and factual issues presented; (4) the relief
           sought, including damages, and the basis therefor; and (5) the status of settlement
           negotiations.”
       The standing order also required that counsel verify whether a jury demand had been made
       as to any claim.
¶8         On the day the settlement conference was scheduled, October 29, 2010, plaintiffs filed
       an agreed motion to continue the conference because Mr. McHugh was involved in a
       mediation in Ohio on the date set. The court reset the settlement conference for December
       17, 2010.
¶9         Plaintiffs presented a four-page memorandum on the day of the rescheduled settlement
       conference. However, there is nothing in the record to show that defendants objected or that
       the settlement conference was impeded in any way because of the untimeliness of the
       memorandum.
¶ 10       In their memorandum, plaintiffs stated that: “Most of the material facts are not disputed.

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       The seminal legal question is the definition or description of the legal relationship between
       the parties.” Plaintiffs generally outlined their position as to the existence of a partnership
       or joint venture with defendants, but explained that: “The legal contentions advanced by the
       parties have been extensively briefed [on the cross-motions for summary judgment], and are
       not further recited here.” Plaintiffs contended they were entitled to damages in lost
       compensation of $2,599,258 and, under the “principles of unjust enrichment,” an additional
       recovery of $3 million based on monies earned by defendants on the wrongfully withheld
       funds. Plaintiffs’ memorandum was silent as to whether they continued in their jury demand.
       Defendants submitted a pretrial settlement memorandum, which included 10 pages of
       detailed discussion relating to the nature of the case, issues, and relief sought.
¶ 11        After the suit was not resolved at the December 17, 2010, settlement conference, the trial
       court set the case for trial–for the first time–in an order entered the same day. That order
       stated:
            “Trial is scheduled for May 16-23, 2011 at 1:30 p.m.; Final pre-trial conference on May
            9 at 1:30 p.m.; Documents and demonstrative evidence will be exchanged by May 2;
            Evidentiary objections due on May 9; Pre-trial memoranda due on May 6; Motions in
            limine due at final Pre-trial.”
¶ 12        Although this order did not refer to the standing order, the standing order contained
       procedures applicable to a final pretrial conference and trial, including the following
       provisions:
                “A final pretrial conference will be scheduled at the same time a date is set for trial.
            Once set trial dates are firm and will not be rescheduled absent compelling
            circumstances. ***
                At the time the Court sets the date for the final pretrial conference, it will also order
            the preparation of a final pretrial memorandum by each party. The purposes of [these]
            memoranda [are] to limit the issues to be decided at trial, to ensure that essential trial
            preparation is done in a timely fashion, and to eliminate unnecessary delays during the
            course of a trial.” (Emphasis in original.)
       The standing order warned: “Failure to comply with the Court’s orders regarding final
       pretrial memoranda may result in the imposition of sanctions pursuant to Supreme Court
       Rule 218 and/or 219.”
¶ 13        According to the standing order, the final pretrial memorandum (trial memorandum) was
       to be served on each party and on the court five days before the final pretrial conference (trial
       conference). The court’s scheduling order, however, provided that the trial memorandum in
       this case should be filed by May 6, only three days before the May 9 trial conference. The
       standing order stated that the trial memorandum was to include, inter alia, the estimated
       length of trial, short statement of the case, fact stipulations, an affidavit of compliance with
       Illinois Supreme Court Rule 237 (Ill. S. Ct. R. 237 (eff. July 1, 2005)), certifications
       regarding jury demands, lists of witnesses who will or may be called to testify, and numbered
       exhibits with any agreement regarding admissibility. The standing order also required that
       all counsel should confer concerning objections to exhibits prior to the final pretrial

                                                  -4-
       conference, with copies of exhibits to be served on the court five “court days” before trial,
       i.e., May 9. However, the scheduling order required the exhibit exchange by May 2.
¶ 14        Defendants sought to comply with the court’s trial preparation requirements by sending
       a letter to Mr. McHugh, dated April 15, 2011, proposing 84 stipulations of fact. Additionally,
       by letter dated April 21, 2011, and again addressed to Mr. McHugh, defendants requested the
       originals of two e-mails pursuant to Rule 237. It appears Mr. McHugh did not respond to
       these letters.
¶ 15        During this period before trial, defendants also supplemented their discovery responses,
       producing an additional 419 documents on March 28, 2011, and 39 documents on April 1,
       2011. Plaintiffs, in reviewing this supplemental discovery, believed additional documents,
       in particular e-mails, had still not been produced. Plaintiffs also concluded that this new
       discovery production included e-mails which defendants had previously asserted did not
       exist. Counsel for both sides exchanged letters, from April 1 through April 11, in an attempt
       to resolve the dispute. In his letters to defense counsel, Mr. McHugh said he was prepared
       to pursue a forensic review of defendants’ computers and seek a hearing before the trial
       judge, but he believed the trial judge “would expect us to address the matter ourselves, in
       good faith, and in consideration of our professional and our clients’ legal responsibilities.”
       He also expressed a wish to promptly reach an agreement with defense counsel so this issue
       did not “jeopardize our trial date” or “consume most of our discussion” at the trial
       conference. In his April 8 letter, Mr. McHugh stated:
            “Like you, and perhaps your clients, we are anxious to try this matter to its proper
            conclusion. We do not, however, concede to anything less than a level playing field. We
            were told there were no documents. That is no longer true. Vandeputte testified that he
            never discussed a a, a, a sharing arrangement with Neal Kottke. His recent production
            belies that statement as well.”
       Mr. McHugh stated he would ask the trial court for a hearing date as to the dispute. In the last
       letter exchanged by counsel as to this issue, dated April 11, defense counsel stated he did not
       want to “create a war of letters.” Defense counsel further stated that if Mr. McHugh wished
       to file a motion regarding these discovery issues, “I cannot stop you from doing so. We will
       strenuously oppose any [such] motion.”
¶ 16        On May 2, 2011, the date set for the parties to exchange exhibits, defense counsel served
       a list of 254 proposed trial exhibits on plaintiffs. On that date, Mr. McHugh sent defense
       counsel an e-mail containing a list of 11 categories or groups of exhibits that plaintiffs
       intended to offer at trial. Plaintiffs’ exhibit groups, for the most part, covered documents that
       had been previously produced through discovery or were exhibits used at depositions or in
       briefing the motions for summary judgment. Plaintiffs’ exhibits did include a damages
       calculation spreadsheet that had not been previously produced but was prepared by plaintiff
       Cronin and was intended to be used as a demonstrative exhibit at trial. Additionally, Mr.
       McHugh notified defendants that plaintiffs continued to believe that additional relevant
       documents needed to be produced, and he reserved the right to supplement the exhibit list
       should plaintiffs be successful on an anticipated motion to compel relating to defendants’


                                                 -5-
       supplemental document productions.
¶ 17        In the e-mail, plaintiffs’ counsel stated that he did not foresee any objection as to the
       authenticity of defendants’ proposed 254 trial exhibits. Mr. McHugh suggested that because
       many of plaintiffs’ trial exhibits were duplicative of defendants’ exhibits, the parties should
       agree to a procedure that would expedite the use of exhibits at trial. Counsel further
       suggested, “[f]or ease of exhibit management, it may make the most sense to have one or
       more books of trial exhibits, since the case is initially to be tried to the court.” Mr. McHugh
       ended the e-mail by stating that he intended to send defense counsel a list of stipulated
       exhibits “within the next two days” and that he intended “to arrange the documents
       chronologically in logically sequenced categories.” He indicated that he “[l]ooked forward
       to discussing” the matters set forth in his e-mail with defense counsel.
¶ 18        In a May 3, 2011, letter, defendants’ counsel objected to plaintiffs’ failure to exchange
       exhibits as required by the order of December 17, 2010, and asserted that plaintiffs’ “broad
       identification of categories of documents [made] it virtually impossible to review and
       determine whether there are any evidentiary objections.” Nonetheless, defense counsel set
       forth objections to some of the categories of exhibits while also indicating that there were
       no objections as to other categories. In the letter, defense counsel did not respond to
       plaintiffs’ counsel’s suggestions as to the coordination of trial exhibits.
¶ 19        On May 6, 2011, plaintiffs filed a motion to compel discovery, just as they had
       forewarned in their April letters and May 2 e-mail to defendants. That motion included a
       request for a forensic examination of Kottke’s computers based upon defendants’
       supplemental production of documents. On May 9, 2011, at the time set for the trial
       conference, the trial court struck defendants’ motion to compel as “untimely and in violation
       of the orders of this court.”1 In opposing the motion to compel, defendants had apparently
       raised the fact that the trial judge who had first presided over the case had entered an order
       on November 14, 2007, stating: “The parties are granted leave to file motions to compel on
       or before November 30, 2007.”
¶ 20        On May 9, the court also allowed defendants leave to file a motion for sanctions pursuant
       to Illinois Supreme Court Rule 219 (Ill. S. Ct. R. 219 (eff. July 1, 2002)), having found
       plaintiffs failed to file a trial memorandum, and set a hearing date of May 11, 2011.
¶ 21        Accordingly, on May 10 defendants filed a motion for sanctions seeking only one
       possible sanction–dismissal with prejudice pursuant to Supreme Court Rule 219(c)(v). Ill.
       S. Ct. R. 219(c)(v) (eff. July 1, 2002) (which provides that a party’s claims may be dismissed
       with or without prejudice as a sanction for unreasonably failing to comply with discovery
       rules or orders). Defendants argued that plaintiffs had acted in bad faith by failing to file a
       trial memorandum by May 6, identify and exchange exhibits by May 2, participate in a
       process to stipulate to facts as proposed in defendants’ April 15 letter, name an expert to


               1
               The motion to compel is not included in the record on appeal. There is no transcript of the
       proceedings held on May 9, 2011. Our discussion of the motion to compel is guided by other
       pleadings, exhibits and transcripts that are in the record.

                                                  -6-
       support the damage calculations set forth in plaintiffs’ exhibit produced on May 2, and by
       filing a “spurious” and untimely motion to compel. Defendants argued that these failures and
       actions had prejudiced them in that they would “be required to try this case based on
       speculation and surmise.” The motion included defendants’ May 3 response, but did not
       attach plaintiffs’ May 2 e-mail as an exhibit.
¶ 22        Plaintiffs did not file a written response to the motion. Instead, on the same day, May 10,
       2011, at 4:26 p.m., Mr. McHugh sent defense counsel an e-mail attaching plaintiffs’ trial
       memorandum, which included, as required by the standing order, the estimated length of the
       trial, a short statement of the case, a list of potential witnesses, a statement of stipulated facts,
       a statement that plaintiffs did not intend to offer responses to Rule 216 requests for
       admission, an exhibit list, an affidavit of Rule 237 compliance, Rule 213(f) (Ill. S. Ct. R.
       213(f) (eff. Jan. 1, 2007)) disclosures and deposition transcript as to their expert, Howard
       Schneider, and a statement of applicable legal principles. As to a jury, plaintiffs stated they
       “have demanded trial by jury, since the remedy they seek is ultimately monetary damages
       [and] *** restitution for what was withheld from them.” Plaintiffs’ list of nine potential
       witnesses included plaintiffs’ disclosed expert, Mr. Schneider, plaintiffs Cronin and
       Anderson, Neal Kottke, defendant Vandeputte, and employees of Kottke. With the exception
       of the expert Mr. Schneider, plaintiffs’ witnesses were also listed as potential witnesses in
       defendants’ final trial memorandum. All of plaintiffs’ witnesses had been deposed.
¶ 23        The trial memorandum’s exhibit list delineated 41 trial exhibits, including business
       records of defendants, documents that had been exhibits to the summary judgment motions,
       and exhibits that also were listed as defendants’ trial exhibits. Plaintiffs’ trial exhibit 38 was
       the damages calculation document that had been served on defendants along with the May
       2, 2011, e-mail. Mr. McHugh stated that duplicates of the exhibits would be sent
       “immediately,” and hard copies would be delivered to defendants by the end of the business
       day.
¶ 24        At the hearing on May 11, 2011, defendants presented arguments as set forth in their
       written motion for sanctions and further argued that plaintiffs’ “last minute” trial
       memorandum raised a new damages claim based on unjust enrichment; indicated a jury was
       requested; wrongfully stated there were no Rule 237 issues when defendants, by letter, had
       requested plaintiffs produce the originals of two e-mails; and offered confusing stipulations
       of facts. They claimed prejudice in their trial preparation and that plaintiffs had an unfair
       advantage because “defendants did everything they were supposed to do.” Defendants
       described plaintiffs’ conduct as “contumacious.”
¶ 25        Mr. McHugh, in turn, apologized both to the court and to defense counsel and addressed
       his failure to abide by the court’s order. He explained:
                 “My judgment was clouded because of the discovery dispute. I accept responsibility
            for that. It was not meant to be contumacious with the Court.
                 It went to what we believe was the heart of our case ***.”
       Mr. McHugh requested that any sanctions “be visited upon me. Not my clients.” Mr.
       McHugh denied he filed the motion to compel as a tactical matter, or as a form of

                                                   -7-
       “gamesmanship.” He said he felt bound to resolve this discovery dispute for his clients.
¶ 26        Mr. McHugh stated further that he had driven back to Toledo, Ohio, after the May 9
       hearing on plaintiffs’ motion to compel, and “remembered the words the Court told me. That
       this was scandalous in her view.” Having been admonished by the court, he “immediately
       went back to the office,” worked through the night,”gathered all the exhibits,” prepared a
       trial memorandum and sent it to defendants’ counsel the next day. Mr. McHugh hoped that,
       in this way, “any prejudice I might have caused by failing to abide by the pre-trial
       memorandum order could be mitigated.”
¶ 27        Although arguments were presented at the hearing, the record does not include any
       review or consideration of plaintiffs’ exhibit list, trial memorandum, witness list, or May 2
       e-mail. There were no determinations or factual findings on such issues as, whether
       plaintiffs’ exhibits were previously disclosed or duplicative, whether there were objections
       to defendants’ exhibits, or whether plaintiffs were raising a new claim of damages based on
       unjust enrichment. The exact nature and extent of the prejudice to defendants, other than
       delay, was not defined with particularity by the court.
¶ 28        After hearing arguments, the trial judge explained the significance of her trial procedures:
                “I can’t imagine a more vital time for the Court or counsel. It’s expensive. In this
            Court trials are conducted in the afternoon. I would have to open the court on weekends
            given the trial schedule that I have to reschedule matters for this year.”
       The judge explained, given the court’s scheduling limitations and the need for litigants to
       prepare for trial, that the procedures set forth in the standing order and court-ordered
       deadlines required strict compliance, saying:
                “To emphasize that and make sure that the trial date is one that’s going to be
            observed, I have relatively exacting requirements of what needs to be in a pre-trial order,
            what the schedule is in advance of the final pre-trial conference, which is all designed to
            have the parties pretty much ready for trial, as well as the Court.
                So, this is where we are. When we look at what the deadlines were on the December
            17 order, which was entered almost five months ago now, there were very specific
            deadlines for purposes of exchanging documents, presenting objections, telling the Court
            what those objections were, also so that the Court could be prepared to rule, and the
            parties would have thereafter one week to prepare for their trial.
                None of this was complied with on the part of the Plaintiffs.”
¶ 29        As to whether dismissal with prejudice would be an appropriate sanction, the judge
       stated:
                “I recognize that sanctions under the Supreme Court Rule are designed to be
            remedial. In this case, I really have struggled with whether or not there is some other
            possibility other than to dismiss plaintiffs’ claims, bar the evidence, it seems to me to get
            back to the same place.
                I don’t think an extension of time is justified by any stretch of the imagination.
                                                  ***

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                In my view, if ever there was a case that warrants the sanction of barring these causes
           of action, I’m having a hard time determining what it would be.
                                                  ***
                I don’t know how to remedy this situation, because at this point I don’t have another
           week to conduct a trial. ***
                I think in this case, their request for sanctions, barring these causes of action is
           appropriate.”
       The trial court entered an order granting defendants’ motion for sanctions pursuant to Rule
       219(c)(v), striking plaintiffs’ pleadings, and dismissing the suit with prejudice based on the
       reasons it expressed orally at the hearing.
¶ 30       Plaintiffs retained new counsel and moved to vacate the dismissal order. Plaintiffs argued
       that: (1) defendants had not demonstrated prejudice resulting from any noncompliance with
       the final trial procedures, (2) plaintiffs were unaware of their counsel’s actions and should
       not be punished, and (3) lesser sanctions were available. Plaintiffs, in affidavits, stated they
       had no knowledge of Mr. McHugh’s failure to timely exchange trial exhibits and file a trial
       memorandum, and had not been part of any decision to file the motion to compel. After
       hearing arguments, the court on September 15, 2011, entered an order which denied the
       motion “for the reasons stated by the court on the record.”
¶ 31       At the hearing, the trial court stated that she had “reviewed the sanctions or the factors
       that I’m required to consider.” The court went on to state:
                “One of the factors that I considered is the chance of plaintiffs’ future compliance.
           *** [h]aving seen no real efforts at getting the case prepared for trial for a trial date that
           had been set five months earlier, I did not consider that there was a great deal of promise
           that any of the Court’s orders in the future were going to be complied with. ***
                                                  ***
                *** I considered matters like shall I exclude proof, shall I bar certain claims, et
           cetera, et cetera. I couldn’t see the difference between that and dismissal of the action.
           Barring evidence of a material nature or barring claims seems to me would have
           ultimately resulted in the same action. In my view, the actions and the factors that were
           presented to the Court, as I saw them, not necessarily as they’ve been described here
           were significant, egregious violations that resulted in prejudice to the defendants, and
           that certainly resulted in a disruption of the Court’s docket, and there was no excuse
           offered whatsoever. I don’t see a basis to vacate my earlier order.”
       Plaintiffs timely appealed.

¶ 32                                       II. ANALYSIS
¶ 33       On appeal, plaintiffs argue the trial court failed to: (1) apply the applicable factors or
       standards for the imposition of a sanction of dismissal with prejudice, (2) make the required
       findings with specificity as required under Illinois Supreme Court Rule 219(c) (Ill. S. Ct. R.
       219(c) (eff. July 1, 2002)) (providing that when a sanction is imposed under the rule, “the

                                                  -9-
       judge shall set forth with specificity the reasons and basis of any sanction so imposed either
       in the judgment order itself or in a separate written order”), and (3) consider lesser sanctions
       which would have addressed any prejudice. Before addressing such concerns, we first
       consider whether the trial court had authority, under Rule 219 or otherwise, to enter a
       dismissal with prejudice based upon the conduct at issue.

¶ 34                                  A. Trial Court’s Authority
¶ 35       Rule 219(c) “authorizes a trial court to impose a sanction *** upon any party who
       unreasonably refuses to comply with any provisions of this court’s discovery rules or any
       order entered pursuant to these rules.” Shimanovsky v. General Motors Corp., 181 Ill. 2d
       112, 120 (1998). The rule “outlines a nonexclusive list of sanctions” that may be imposed,
       including the dismissal of the offending party’s suit with prejudice. Donner v. Deere & Co.,
       255 Ill. App. 3d 837, 841 (1993). “The sanctions authorized under Rule 219 are intended to
       combat abuses of the discovery system and to maintain the integrity of our court system.”
       Smith v. P.A.C.E., 323 Ill. App. 3d 1067, 1075 (2001). Under Rule 219, the trial court must
       choose a sanction that will promote discovery, not impose punishment on a litigant. Wilkins
       v. T. Enterprises, Inc., 177 Ill. App. 3d 514, 517 (1988). “A just order of sanctions under
       Rule 219(c) is one which, to the degree possible, insures both discovery and a trial on the
       merits.” Shimanovsky, 181 Ill. 2d at 123.
¶ 36       We believe there is at least a question whether Rule 219(c) squarely applies to the
       specific conduct–plaintiffs’ failure to file a trial memorandum–which gave rise to the motion
       for sanctions. In seeking dismissal with prejudice, defendants did argue that plaintiffs’
       conduct–i.e., the prior conduct during the discovery process discussed above–filing a motion
       to compel on the eve of trial and presentation of a damages calculation exhibit which had not
       been previously disclosed–should be considered in determining the seriousness of plaintiffs’
       conduct, the resulting prejudice to defendants, and the need for a severe sanction. However,
       the thrust of the motion was that the dismissal was warranted because plaintiffs failed to
       comply with the court’s procedures as to trial preparation, as reflected in the court’s standing
       order and the scheduling order entered in this case.
¶ 37       In Sander v. Dow Chemical Co., 166 Ill. 2d 48 (1995), our supreme court cautioned
       against a narrow interpretation of Rule 219. In that case, the trial court had dismissed a cause
       of action with prejudice based in large part on plaintiffs’ repeated violations as to pleading
       orders. Id. at 60. The appellate court found that Rule 219 did not apply to “repleading matters
       that have previously been stricken.” Id. at 60-61. The supreme court found that “the scope
       and procession of discovery may depend on the court’s orders regarding the pleadings.” Id.
       at 64. The court rejected the limited interpretation given the rule by the appellate court and
       concluded that the plaintiffs’ violations of pretrial pleading orders fell within the purview of
       Rule 219. Id. at 63; compare with Gonzalez v. Nissan North America, Inc., 369 Ill. App. 3d
       460, 469 (2006) (“Rule 219 is not a basis for sanctioning conduct that occurs at trial.”).
¶ 38       Plaintiffs here were charged with violations of the trial court’s standing order, which
       included procedures for the expeditious adjudication of cases and the efficient and


                                                -10-
       streamlined presentation of evidence at trial. Implicit in the requirements set forth in the trial
       court’s standing order as to the exchange of exhibits, the preparation of trial memoranda, and
       other final trial provisions are determinations that the parties had been compliant with
       discovery requests and orders and that there would be no unwarranted surprises at trial. We
       conclude that plaintiffs’ claimed disregard of the trial court’s scheduling order and its
       standing order for trial preparation falls within the purview of Rule 219.
¶ 39        Even if Rule 219 were inapplicable, however, the trial court possessed the power to enter
       sanctions, including a dismissal with prejudice, under these circumstances. In Sander, 166
       Ill. 2d at 65, our supreme court found that apart from and independent of any authority
       granted by Rule 219(c), a trial court has the inherent authority to control its docket and
       impose sanctions for the failure to comply with court orders. “The recognition of the court’s
       inherent authority is necessary to prevent undue delays in the disposition of cases caused by
       abuses of procedural rules, and also to empower courts to control their dockets.” Id. at 66;
       J.S.A. v. M.H., 224 Ill. 2d 182, 196 (2007) (inherent authority allows a court to “prevent
       undue delays in the disposition of cases caused by abuses of the litigation process”). Pursuant
       to this inherent power, a court may dismiss a cause of action with prejudice where a party has
       deliberately and contumaciously disregarded the court’s authority. Sander, 166 Ill. 2d at 68.
¶ 40        We conclude that the trial court had authority–premised upon both Rule 219 and its
       inherent power–to enter a sanction of dismissal with prejudice and, therefore, we must now
       consider whether such a sanction was appropriate.

¶ 41                                 B. Trial Court’s Sanction Order
¶ 42       A sanction imposed under Rule 219 (Shimanovsky, 181 Ill. 2d at 123) or a court’s
       inherent power (Sander, 166 Ill. 2d at 67) is reviewed under an abuse of discretion standard
       and will be reversed “when the record establishes a clear abuse of discretion” (id.).
¶ 43       We begin our analysis with the following observations. The trial judge in this case
       presides over a calendar of complex civil suits from filing to resolution and carefully set forth
       procedures in her standing order to assure the fair and efficient adjudication of the cases on
       her docket. When this case was ripe for trial, the judge and counsel determined trial dates
       which were convenient for all. Based on these trial dates, the judge then set a schedule for
       the exchange of exhibits and the filing of trial memoranda and a trial conference date.
¶ 44       Plaintiffs’ counsel frustrated the provisions of the standing order and the court’s
       scheduling order. In the end, the trial did not go ahead, leaving a gap in the court’s calendar
       and defendants having prepared for a trial which did not then proceed. We do not approve
       of the fact that plaintiffs’ counsel did not fully respect the procedures of a conscientious trial
       judge. However, the issue is not whether plaintiffs’ counsel was “without fault,” but whether
       a dismissal with prejudice was warranted under all the circumstances of this case. White v.
       Henrotin Hospital Corp., 78 Ill. App. 3d 1025, 1027 (1979).
¶ 45       An order of dismissal with prejudice is a “drastic sanction” to be entered only “where the
       party’s actions show a deliberate, contumacious or unwarranted disregard of the court’s
       authority.” Shimanovsky, 181 Ill. 2d at 123 (and cases cited therein); Adams v. Bath & Body

                                                 -11-
       Works, Inc., 358 Ill. App. 3d 387, 395 (2005) (referring to dismissal with prejudice as the
       “ ‘death penalty’ of sanctions”). Further, dismissal with prejudice is a sanction to be
       “employed only ‘as a last resort and after all the court’s other enforcement powers have
       failed to advance the litigation.’ ” Id. at 394 (quoting Shimanovsky, 181 Ill. 2d at 123).
       Because of the severity, “courts are reluctant to impose the sanctions of dismissal.” White,
       78 Ill. App. 3d at 1028; Donner, 255 Ill. App. 3d at 841 (sanction of dismissal “should be
       imposed reluctantly and only as a last resort when all other enforcement powers at the court’s
       disposal have failed to advance the litigation”); Gonzalez, 369 Ill. App. 3d at 471 (sanction
       of dismissal with prejudice runs contrary to public policy of this state and the “ ‘underlying
       spirit of our system of civil justice’ ” that suits should be decided on their merits (quoting
       Smith v. City of Chicago, 299 Ill. App. 3d 1048, 1054-55 (1998))). Notably, these concerns
       and requirements have been found to be applicable where dismissal is imposed as a sanction
       pursuant to either Rule 219 or the trial court’s inherent authority. Sander, 166 Ill. 2d at 67-
       68; Fair Automotive Repair, Inc. v. Car-X Service Systems, Inc., 128 Ill. App. 3d 763, 772-73
       (1984).
¶ 46       A dismissal with prejudice will be reversed “if it will not cause a hardship for the parties
       to proceed to trial on the merits.” White, 78 Ill. App. 3d at 1029.

¶ 47                                   1. Contumacious Action
¶ 48        In determining whether plaintiffs’ counsel was guilty of contumacious actions, we
       consider that he did not fully comply with the trial court’s scheduling order and standing
       order as to trial procedures and, in particular, the requirements as to the exchange of exhibits
       and preparation of a trial memorandum. There was not, however, a blatant and complete
       disregard of the court’s authority on the part of plaintiffs’ counsel. As to the exhibits, on May
       2, the ordered deadline for exchanging exhibits, plaintiffs’ counsel sent defendants an e-mail
       relating to proposed trial exhibits. This e-mail lacked detail as to plaintiffs’ exhibits and did
       not actually include the exhibits, but did identify groups of exhibits. Defendants’ motion for
       sanctions did not include or attach plaintiffs’ counsel’s May 2 e-mail. The May 2 e-mail was
       presented as an exhibit to plaintiffs’ motion to vacate the dismissal. We cannot overlook that
       in this e-mail, plaintiffs’ counsel stated that plaintiff’ trial exhibits were largely duplicative
       of defendants’ trial exhibits and, for the most part, had been previously disclosed.
       Additionally, plaintiffs’ counsel made suggestions as to the parties’ presentation of the
       exhibits at trial, indicated he had no anticipated objection as to the authentication of
       defendants’ exhibits, volunteered to organize the trial exhibits, and suggested further
       discussions as to the exhibits. Plaintiffs’ counsel did not fully comply with the provisions as
       to the identification and exchange of documents by May 2, but his conduct as to the exhibits
       procedures cannot be characterized as contumacious.
¶ 49        Plaintiffs’ counsel also failed to file a trial memorandum on May 6, instead presenting
       a motion to compel further discovery which he believed was crucial to his clients’ case. The
       motion was brought after defendants produced a large amount of documents in the months
       just before trial and after efforts to resolve the resulting dispute failed. Plaintiffs’ counsel


                                                 -12-
       appeared at the scheduled trial conference seeking the court’s determination of this discovery
       issue. The motion was stricken as untimely and, therefore, no further discovery was ordered.
       Plaintiffs were then left without a trial memorandum. Plaintiffs’ counsel, albeit after being
       orally admonished by the trial court and in the face of a motion for sanctions, served a
       lengthy trial memorandum–with exhibits–in a form which sought to comply with the
       standing order on May 10, six days before the trial date. Plaintiffs’ counsel’s decision to
       concentrate his efforts on gaining additional discovery, which he viewed as crucial, may have
       been misguided and his trial preparation may have been inadequate, but we cannot conclude
       that he acted contumaciously or deliberately refused to comply with the court’s procedures.
¶ 50        In their brief before this court, defendants cite to cases where dismissals with prejudice
       were upheld in light of egregious misconduct. See Big Three Food & Liquor, Inc. v. State
       Farm Fire & Casualty Co., 79 Ill. App. 3d 63 (1979); Gayton v. Levi, 146 Ill. App. 3d 142
       (1986); Higgens v. House, 288 Ill. App. 3d 543 (1997).
¶ 51        In Big Three, 79 Ill. App. 3d at 68, the plaintiffs’ suit was dismissed with prejudice where
       they showed “a deliberate, unwarranted, contumacious disregard of the rules and the court’s
       orders since the inception of [the] cause of action.” Specifically, the plaintiffs failed to
       comply with orders for filing amended pleadings and answering interrogatories, their counsel
       failed to appear on a court date and file responses to motions, and the case had been
       previously dismissed for failure to file an amended complaint as directed. Id. at 67-68.
¶ 52        In Gayton, 146 Ill. App. 3d at 151, the plaintiffs failed to respond to discovery requests
       in violation of court orders and been subject to a prior motion for sanctions. On a subsequent
       motion for sanctions, filed more than three months after the plaintiffs’ discovery was due,
       the plaintiffs failed to attend a hearing on the motion. Id. at 146. The court entered an order
       of dismissal with prejudice which provided that the case would be reinstated should the
       plaintiffs tender discovery or provide a reasonable excuse for their noncompliance. Id.
       Almost 60 days later, the plaintiffs finally moved to vacate the dismissal and filed with the
       motion answers to interrogatories that were, in some ways, defective. Id. at 147. The motion
       to vacate was denied. Id. at 148.
¶ 53        In Higgens, 288 Ill. App. 3d at 545, a medical malpractice suit, the plaintiffs, “[o]n
       numerous occasions,” failed to comply with defendants’ requests to name an opinion witness
       and an order entered requiring the plaintiffs to name and present experts for depositions.
       Defendants then moved for summary judgment arguing that the plaintiffs, without expert
       opinions, could not meet their burden of proof. The plaintiffs did not respond to the motion
       or appear for the hearing. The trial court granted the motion for summary judgment and
       denied the plaintiffs’ motion to vacate that judgment. Id. The appellate court affirmed the
       trial court’s decision as to the summary judgment, but did not consider whether the motion
       for summary judgment could have been properly granted as a sanction for the plaintiffs’
       persistent violations of discovery procedures. Id. at 547. However, the appellate court
       affirmed the denial of the motion to vacate the summary judgment order “in light of the lack
       of diligence in the prosecution of this case.” Id. at 548.
¶ 54        In each case cited by defendants, the plaintiffs exhibited a pattern of indifference over a


                                                 -13-
       course of the litigation which defied the court’s authority and, in Big Three and Gayton, there
       also had been prior sanction orders entered against the plaintiffs. See also Koppel v. Michael,
       374 Ill. App. 3d 998, 1004 (2007) (in this case, cited by defendants here, a sanction of default
       was upheld against the defendants who “had been subject to 12 orders regarding their
       discovery noncompliance”); Sander, 166 Ill. 2d at 69 (dismissal with prejudice upheld where
       “during the final five months of this litigation, plaintiffs violated four separate court orders
       setting the deadlines for the filing of their amended complaint, failed to reply to [the
       defendant’s] motion for protective order and continued to replead matters in the amended
       complaints that had been previously stricken by court order”) R.M. Lucas Co. v. Peoples Gas
       Light & Coke Co., 2011 IL App (1st) 102955, ¶ 28 (case dismissed one year after discovery
       disclosure date where the plaintiffs failed to comply with numerous discovery requests and
       court orders setting discovery deadlines including dismissal order which gave 30 days to
       comply and dismissal would be vacated). Such deliberate, contumacious, and repeated
       disregard is not present here. Although defendants contend a sanction of dismissal may be
       imposed even where there has not been repeated misconduct, the above cases cited by
       defendants are factually inapposite and do not support the dismissal with prejudice entered
       against plaintiffs.
¶ 55       In seeking dismissal, defendants argued there had been repeated misconduct and listed
       a series of transgressions on the part of plaintiffs. Defendants maintained that plaintiffs
       conducted discovery in violation of the rules, were late with the settlement conference
       memorandum, brought a motion to compel beyond a set deadline, and had violated the
       court’s procedures for trial preparation. We disagree that there was a pattern of misconduct
       throughout the course of this litigation which justified dismissal with prejudice.
¶ 56       Plaintiffs’ conduct during the discovery stage of litigation and, as to the settlement
       conference, did not exhibit wilful defiance of judicial authority in the manner of the cases
       cited above. At the hearing on plaintiffs’ motion to vacate the dismissal, the trial court
       indicated there had been some “foot dragging,” but also acknowledged plaintiffs had not
       been “contumacious” and had not violated any court orders during the discovery process. We
       have carefully searched the record and found no indication that plaintiffs’ manner of
       conducting discovery or pursuing the case was subject to any prior form of reprimand from
       the court, or even an expression of frustration. Plaintiffs’ requests for extensions as to expert
       discovery were granted with no warnings as to future delay and no findings that the
       extensions were made in bad faith or without basis.
¶ 57       Further, plaintiffs’ motion to compel may have been ill-timed, but on this record we
       cannot conclude it violated any deadline set by the court. Defendants rely on an order that
       stated the parties were “granted leave” to file motions to compel by a certain date, but this
       order did not set forth a strict deadline or cutoff for such motions. Plaintiffs were not barred
       by any rule or order–that we are aware of–to file a motion to compel based on defendants’
       supplemental discovery production during the period before trial. Although the trial court–at
       the hearing on plaintiffs’ motion to vacate the dismissal order–expressed the view that
       plaintiffs’ motion to compel “was a manufactured excuse not to go to trial” and was “not
       made in good faith,” the factual basis for this belief was not developed in the record. In fact,

                                                 -14-
       plaintiffs’ counsel had stated in his letters to defense counsel that he did not want the dispute
       to result in a delay of the trial conference or the trial. During the hearing on the sanction
       motion, plaintiffs’ counsel stated that the motion to compel was not brought for tactical
       reasons. Plaintiffs’ counsel explained that the motion was not brought earlier because, until
       defendants produced these supplemental documents, he believed that the documents did not
       exist based on defendants’ assertions.
¶ 58       Finally, we are not willing to find that every alleged individual violation of the
       scheduling order and standing order, as to final trial procedures raised by defendants, created
       a “pattern” of misconduct on the part of plaintiffs which could subject them to dismissal with
       prejudice. See generally Mieszkowski v. Norville, 61 Ill. App. 2d 289, 297 (1965) (“While
       we recognize that the rules of court must be observed if dockets are to be kept current, yet
       courts must, in a proper case, yield the procedural exactitudes to the more basic rules of
       fundamental fairness.”).

¶ 59                                2. Dismissal as “Last Resort”
¶ 60        The sanction of dismissal with prejudice was the first sanction imposed against plaintiffs.
       The parties had completed fact and opinion discovery, pursued dispositive cross-motions for
       summary judgment, and engaged in settlement negotiations with the court. The case was
       dismissed five days before the first day set for trial and at the first scheduled trial. The
       sanction imposed did not coerce plaintiffs’ counsel to comply with the standing order and
       the scheduling order as is the purpose for entering sanctions. Instead, the dismissal with
       prejudice deprived plaintiffs of an opportunity to pursue the merits of their claims which, up
       to the point at issue here, had been actively pursued. The dismissal order is thus contrary to
       the case law, which “requires that such a sanction should only be used as a last resort, the
       implication being that progressively harsher sanctions should be employed to achieve
       compliance.” Donner, 255 Ill. App. 3d at 842.
¶ 61        Nor was it evident that any defiance of the court’s final trial procedures, on the part of
       plaintiffs’ counsel, would continue. After plaintiffs’ motion to compel was denied and the
       trial court granted leave for plaintiffs to file a motion for sanctions, plaintiffs’ counsel
       immediately returned to his Ohio office and prepared and served a trial memorandum and
       exhibit list by the next day.

¶ 62                                    3. Other Factors
¶ 63       Our review could perhaps end here, as we have determined that plaintiffs’ counsel had
       not shown a “deliberate, contumacious, or unwarranted disregard” for the authority of the
       trial court (R.M. Lucas Co., 2011 IL App (1st) 102955, ¶ 27), and the dismissal was not
       imposed as a “last resort” (Donner, 255 Ill. App. 3d at 842). However, case law shows that
       to determine whether there has been an abuse of discretion in the imposition of a sanction
       due to a discovery violation, “we must look to the factors that the trial court should have
       considered in deciding whether such a sanction was appropriate.” Smith, 323 Ill. App. 3d at
       1076. These factors, as modified to fit the case at hand, generally include whether the

                                                 -15-
       offending party’s conduct resulted in surprise to the adverse party; the extent of any prejudice
       that was caused to the adverse party; the diligence of the adverse party; and the good faith
       of the offending party. In re Marriage of Booher, 313 Ill. App. 3d 356, 359-60 (2000). No
       one factor is determinative. Adams, 358 Ill. App. 3d at 395. The decision as to whether a
       sanction was proper is “ ‘circumstance specific.’ ” Gonzalez, 369 Ill. App. 3d at 465 (quoting
       Smith, 299 Ill. App. 3d at 1052).2 We conclude that the above-referenced factors do not
       weigh in favor of the dismissal with prejudice entered here.
¶ 64       At the hearing on the motion to reconsider, the trial court stated it had applied the
       relevant factors in determining that the sanction of dismissal was warranted. As to the factors
       of surprise and prejudice, however, the record is not fully developed. There was no review
       of the May 2 e-mail, either as to plaintiffs’ attempt to meet the exhibit requirements or as to
       the statements therein that the parties’ exhibits were largely duplicative and had been
       previously disclosed. There was no review or evaluation of plaintiffs’ tardy trial
       memorandum to determine whether it met the requirements of the trial court’s standing
       order. There was no testing of defendants’ assertions that: (1) it was a “mystery” why
       plaintiffs presented a motion to compel instead of a trial memorandum at the trial conference;
       (2) they were surprised by the damages exhibit because it had not been disclosed through
       Rule 213 discovery; (3) plaintiffs’ trial memorandum raised a new claim for unjust
       enrichment; and (4) plaintiffs were “demanding a jury trial for the first time.”
¶ 65       The record does not support a conclusion that defendants were so surprised as to these
       matters that dismissal with prejudice was merited. As to plaintiffs’ pursuit of the motion to
       compel, defendants were made aware of the existence of the discovery disputes arising from
       the supplemental responses through the exchange of letters and that, if not resolved, these
       disputes would be subject to a motion. Defendants were told by plaintiffs in the May 2 e-mail
       both that a motion to compel would be filed and that plaintiffs would supplement their
       exhibit list if successful on the motion to compel. Although there was confusion as to
       whether plaintiffs wished to pursue a jury trial, defendants were put on early notice as to the
       issue as the jury demand was made in the complaint. The extent of any surprise as to the
       unjust enrichment claim was not determined, but plaintiffs did refer to an unjust enrichment
       claim in their complaint and settlement conference memorandum. The damages exhibit at
       issue was prepared by plaintiff Cronin and not a retained expert and was to be a
       demonstrative exhibit only. We are without a factual basis to determine whether the exhibit
       should have been disclosed pursuant to Rule 213, or whether the foundation for the
       calculations had been revealed through other discovery.
¶ 66       As to prejudice, plaintiffs’ failure to adequately meet the standing order’s requirements
       as to the exchange of exhibits and their failure to prepare timely a trial memorandum and
       consider stipulations of fact may have harmed or hampered defendants’ final preparation for


               2
                While these factors are typically applied in the context of a sanction imposed for discovery
       violations (see Booher, 313 Ill. App. 3d at 359-60), we see no reason why they are not equally
       applicable to a sanction imposed pursuant to the trial court’s inherent authority.

                                                  -16-
       trial. However, we do not believe defendants suffered such a degree of injury or surprise that
       dismissal with prejudice was justified.
¶ 67        Defendants had considerable knowledge and awareness of the basis of plaintiffs’ suit.
       The case and plaintiffs’ claims had been the subject of fact and expert discovery,
       aggressively litigated cross-motions for summary judgment, and a court-supervised
       settlement conference. Plaintiffs’ witnesses had all been deposed and, significantly, the
       parties’ fact witnesses were identical. Defendants’ knowledge of the case allowed them to
       pursue summary judgment, respond to plaintiffs’ motion for summary judgment, and prepare
       their own detailed settlement conference and trial memoranda. For these reasons, we cannot
       accept defendants’ contention before the trial court that they would be forced to try the case
       “based on speculation and surmise,” or their current argument that they would have been left
       to “shadowbox” at trial due to the various ways that plaintiffs’ pretrial performance is
       claimed to have been deficient.
¶ 68        The record reflects defendants were generally diligent and timely throughout the
       litigation and, in particular, as to the trial court’s requirements for trial preparation and in
       bringing the motion for sanctions. However, we do note that their supplemental production
       of a large number of documents shortly before trial triggered a discovery dispute
       which–when it was not resolved by the attorneys–led to the eventual filing of plaintiffs’
       motion to compel. At the hearing on the motion for sanctions, Mr. McHugh revealed he had
       been overly distracted by this discovery issue and thought he had an obligation to his clients
       to uncover whether further relevant discovery existed. We do not believe defendants’ late
       production of documents absolved Mr. McHugh’s failure to abide by the trial court’s trial
       preparation procedures, but we do consider the fact of the supplemental discovery production
       prior to trial in assessing whether imposition of so drastic a sanction was appropriate.
¶ 69        As set forth above, we have concluded that plaintiffs’ counsel did not exhibit deliberate
       and contumacious disregard of the court’s authority. Similarly, based on this record, we
       cannot say plaintiffs’ counsel acted in bad faith. The focus of the bad-faith factor has been
       a lack of an excuse. Defendants, and even plaintiffs themselves, through new counsel,
       suggest that Mr. McHugh should have had an “excuse” for his inadequate preparation for
       trial. The trial court stated that Mr. McHugh had not offered a “good excuse.” Mr. McHugh,
       at the hearing on the motion for sanctions, said he could not “offer any excuse” for his
       failures, but confessed to getting caught up with the discovery dispute surrounding the
       supplemental discovery. The record showed he believed other documents–in particular,
       crucial e-mails that he had sought throughout the suit–had still not been produced. He further
       believed that the e-mails had relevance and importance to plaintiffs’ claims. It was not an
       “excuse” in the nature of illness, emergency, or conflicts with other cases, but he confessed
       and the record supports that he was intent on resolving the discovery dispute instead of
       preparing a trial memorandum. Nonetheless, as no one factor should be determinative as to
       the proper imposition of a sanction, the lack of an acceptable “excuse” alone, under all the
       circumstances, would not justify the entry of dismissal with prejudice in this case.



                                                -17-
¶ 70                                C. Proceedings Upon Remand
¶ 71       Defendants’ motion for sanctions sought only one possible result; the dismissal of
       plaintiffs’ suit with prejudice. For the reasons stated above, we have found that granting such
       drastic relief in this case was an abuse of discretion.
¶ 72       We further conclude that “it will not cause a hardship for the parties to proceed to trial
       on the merits.” White, 78 Ill. App. 3d at 1029. Any issues as to plaintiffs’ proposed trial
       exhibits, claims for damages, stipulations of facts, the jury demand, or objections to exhibits
       may be resolved in due course pursuant to the applicable rules of discovery, evidence, and
       procedure, as well as the trial court’s standing order and any scheduling order which might
       be entered by the trial court upon remand.

¶ 73                                   III. CONCLUSION
¶ 74      For the foregoing reasons, the order striking plaintiffs’ pleadings and dismissing the case
       with prejudice is reversed. This matter is remanded to the circuit court for further
       proceedings consistent with this opinion.

¶ 75      Reversed; cause remanded.




                                                -18-
