Senses v. Climatemp, Inc.

June 25, 1997

SADIE MARY SENESE, as Ex'x             )    APPEAL FROM
of the Estate of Dominic J. Senese,    )    THE CIRCUIT COURT
Deceased,                                   )    COOK COUNTY.
                                            )
         Plaintiff-Appellant,               )    
                                            )
                                            )
         v.                                 )    No. 89 CH 08412
                                            )                
CLIMATEMP, INC.,                            )    
JOHN W. COMFORTE,                      )    THE HONORABLE, 
THOMAS E. COMFORTE, and                )    ALBERT GREEN,  
VICTOR COMFORTE,                       )    JUDGE PRESIDING.
                                            )    
         Defendants-Appellees.              )    
                                                                     
         
         PRESIDING JUSTICE COUSINS delivered the opinion of the
court:
         Plaintiff, Dominic J. Senese, brought suit against
defendants Climatemp, Inc. (Climatemp), John W. Comforte, Thomas
E. Comforte and Victor Comforte.  Plaintiff alleged that he owned
stock in Broadway Sheet Metal Works, which later became
Climatemp, and agreed to sell his stock in the company but never
consummated that agreement.  Specifically, plaintiff alleged
breach of contract and violations under the Uniform Commercial
Code-Investment Securities Act (810 ILCS 5/8-101 et seq. (West
1992)) and the Illinois Consumer Fraud and Deceptive Business
Practices Act (815 ILCS 505/1 et seq. (West 1992)).  In addition,
plaintiff sought a constructive trust, mandamus and an
accounting. 
         Plaintiff appeals from the trial court s decision granting
defendants  motion to dismiss based on sections 2-615 and 2-619
of the Code of Civil Procedure (735 ILCS 5/2-615, 2-619 (West
1992)), and from earlier orders in which the trial court denied
plaintiff's motion to compel production of documents and to
require defendants to answer deposition questions.  Plaintiff
also appeals from the trial court's award of sanctions under
Supreme Court Rule 137 (134 Ill. 2d R. 137).  
         On appeal, plaintiff contends that: (1) the trial court's
denial of plaintiff's discovery requests concerning the "bona
fides" of the alleged stock transaction was reversible error; (2)
the trial court erred in granting defendants' motion to dismiss
pursuant to section 2-619 of the Code of Civil Procedure (735
ILCS 5/2-619 (West 1992)) based upon standing, laches, statute of
limitations and the Uniform Stock Transfer Act (Ill. Rev. Stat.
1959, ch. 32, par. 416 et. seq ); (3) the trial court's dismissal
of the second amended complaint pursuant to section 2-615 of the
Code of Civil Procedure (735 ILCS 5/2-615 (West 1992)) was
reversible error; and (4) the trial court abused its discretion
in granting defendants' motion for sanctions under Supreme Court
Rule 137 (134 Ill. 2d R. 137).
         Defendants cross-appeal and contend that: (1) the trial
court abused its discretion by granting plaintiff's motion to
substitute the executrix and failing to dismiss the action for
plaintiff's failure to comply with statutory time limits; (2) the
trial court abused its discretion by denying the defendants'
motion to strike plaintiff's answer to defendants' first set of
interrogatories and dismiss plaintiff's complaint with prejudice
as a sanction; and (3) the trial court abused its discretion by
reducing the amount of attorney fees awarded to defendants.  
BACKGROUND
         On September 20, 1989, plaintiff, claiming shareholder
status, filed a complaint for mandamus to compel production of
the corporate minute books and shareholder records of Climatemp
and for other relief. Plaintiff alleged that he was a stockholder
of Climatemp. 
         Climatemp, an Illinois corporation engaged in the heating
and ventilating business, was originally known as Broadway Sheet
Metal Works, Inc. (Broadway), and was incorporated as an Illinois
corporation on May 1, 1958.  The name of the corporation was
changed to Climatemp, Inc., on February 2, 1960.  The original
incorporators and shareholders of the company were L. Anton
Moody, Victor Comforte and Dominic Senese.
         In his first amended complaint, plaintiff alleged that, in
1960, Victor Comforte and Dominic Senese contemplated
transferring their respective shares in the corporation to
Expressway Terminals (Expressway) in order to obtain borrowing
ability and business credibility.  Anthony Sicilia, the president
of Expressway, was a good friend of both Victor and Dominic. 
Plaintiff alleged that he, Victor and Anthony signed a letter of
intent to proceed with the sale.  The letter of intent provided
that Expressway would pay an initial payment and then 10 equal
installments, with the purchase to be completed in 10 years.  The
letter of intent also provided that a formal complaint relating
to the purchase, with arrangements for holding the shares of
stock in escrow, would be drawn up and executed no later than May
1, 1960.  Plaintiff alleged that he still owned his stock in
Climatemp because no formal contract or escrow agreement was ever
created and that he was never paid for his stock.  
         Defendants maintained that plaintiff was an original
shareholder of the company but sold his shares in the company to
Expressway.  Defendants argued that plaintiff was not a
shareholder of record and, therefore, had no right to inspect the
corporation's books and records.  Along with motions to dismiss,
defendants filed an affidavit by corporate treasurer Thomas E.
Comforte denying plaintiff's stock ownership.  With subsequent
motions, defendants presented several exhibits that purported to
establish that Dominic Senese had sold his stock to Expressway on
January 4, 1960.  Defendants' exhibits included: the letter of
intent signed by Victor Comforte, Dominic Senese and Anthony
Sicilia; Dominic Senese's unsigned stock certificate number 3 for
stock in Broadway that was issued to Senese on May 3, 1958, and
had the word "cancelled" handwritten on its face; a corporate
ledger memorializing a transfer of 50 shares from Dominic Senese
to Expressway that contained three names that were crossed out;
and an undated but signed assignment separate from the
certificate assigning Dominic Senese's shares in Broadway to
Expressway.  The trial court dismissed plaintiff's amended
complaint and plaintiff appealed.  
         In Senese v. Climatemp, Inc., 222 Ill. App. 3d 302, 582 N.E.2d 1180 (1991), the appellate court reached several
conclusions.  The appellate court concluded, inter alia, that no
exhibit established whether the parties actually completed the
sale of Dominic Senese's shares in Climatemp as no exhibit
demonstrated that the conditions precedent set forth in the
letter of intent (i.e., to pay an initial payment of $1,000 and
the balance over 10 years; to draw up a formal contract by May 1,
1960; and to have the stock held in escrow until the sale was
complete) were satisfied.  222 Ill. App. 3d at 312.  The
appellate court therefore held that the trial court erred by
relying on the exhibits in plaintiff's complaint and finding them
dispositive of the issue of plaintiff's shareholder status.  222
Ill. App. 3d at 312.  
         The appellate court also concluded that the trial court
properly dismissed plaintiff's claim for a constructive trust but
remanded the case so plaintiff could be allowed to amend
following what the appellate court referred to as "limited
discovery."  222 Ill. App. 3d at 315.  The court stated in
pertinent part:
         "Plaintiff has alleged a fraud occurred in which defendants
         participated, and has alleged that the corporate officers
         and directors breached their fiduciary duty and participated
         in a fraud perpetrated on plaintiff. ***
              ***[P]laintiff has not alleged he notified the
         corporation directors and officers at any time to put them
         on notice that Expressway Terminals, Inc., was improperly
         claiming shareholder rights nor has he alleged any facts to
         support his allegation that corporate officers and directors
         some how participated in his lack of stockholder status. ***
              ***Plaintiff alleged merely that he owned stock and
         Victor Comforte now contends he does not.  Fraud must be
         proven; it cannot be presumed. [Citation.] Plaintiff has not
         alleged sufficient facts in support of a fraud which would
         merit imposition of a constructive trust but should be
         permitted discovery and the opportunity then to amend his
         complaint to correct his deficiencies." 222 Ill. App. 3d at
         315-16.
         The appellate court also responded to defendants' argument
that laches barred plaintiff's complaint.  Citing People ex rel.
Casey v. Health & Hospitals & Governing Comm'n, 69 Ill. 2d 108,
370 N.E.2d 499 (1977), the court concluded that plaintiff should
be given an opportunity to amend his complaint to set forth a
valid excuse to explain the obvious delay in pursuing his claim. 
The appellate court also held that the trial court erroneously
barred plaintiff from engaging in discovery as to the documents
presented by defendants.  The appellate court stated in pertinent
part:
              "We find the trial judge committed such an error here. 
         Plaintiff alleged he was a stockholder and defendants denied
         the stock ownership.  Exhibits attached to both plaintiff's
         amended complaint and defendants' answer included altered
         stock certificates, changed corporate records, strike marks
         over several official documents and other inconsistencies
         which beg for a clearer explanation.  The purpose of
         discovery is to enable counsel to better prepare and
         evaluate their case. [Citation.]  We believe limited
         discovery will cast light on unclear portions of the
         complaint and on the circumstances surrounding the creation
         of the challenged exhibits." 222 Ill. App. 3d at 320.
         Dominic Senese died on January 29, 1992.  On March 9, 1993,
the trial court granted Sadie Mary Senese's motion for
substitution as plaintiff.  Thereafter, following the appellate
court's directive in Senese, the parties commenced discovery. A
number of documents were produced.  Several parties were deposed,
including: Victor Comforte, defendant and chairman of Climatemp;
John Comforte, defendant and president of Climatemp; Thomas
Comforte, defendant and corporate secretary of Climatemp; Harold
Tsukuno, Dominic Senese's personal accountant; and Thomas Roche,
former corporate counsel to Climatemp and Dominic Senese's estate
planning counsel.  In addition, several of Dominic Senese's
personal friends and his personal attorney were deposed. Of
particular relevance to the issues presented were the depositions
of Victor Comforte and Thomas Roche.
         Victor Comforte is the only surviving witness to the
meetings in 1960 that allegedly resulted in the transfer of
Dominic Senese's stock.  In his deposition, Victor testified
that, in 1959, the corporation lost business as the result of
negative publicity surrounding an investigation of the
corporation by the United States Department of Defense.  Victor
and Dominic transferred their shares of Climatemp to Expressway
in order to raise an infusion of capital for the corporation. 
Victor also testified that, initially, he and Dominic considered
selling their shares to L. Anton Moody, the president of Broadway
at the time, C.R. James, an employee at Broadway at the time, and
R. Konicheck, the corporation's bookkeeper at the time.  However,
the proposed sale was halted as it was determined that the sale
of the shares to these three would not remedy the corporation's
financial crisis.  Thus, Victor and Dominic turned to their
mutual friend, Anthony Sicilia, who, at that time, was the
president of Expressway.  Victor testified that both he and
Dominic sold their shares in Broadway to Expressway and were paid
in full in 2« years with corporate checks from Expressway. Victor
had no further affiliation with Climatemp until he returned to
the corporation as an employee in 1963.
         Thomas Roche was an associate attorney with the law firm of
Halfpenny & Hahn in the 1960s, and he worked under Harold
Halfpenny as corporate counsel for Climatemp through 1975. 
Thereafter, Roche no longer represented Climatemp but was Dominic
Senese's estate planning counsel.  Roche testified in his
deposition that he destroyed all of Halfpenny & Hahn's files
regarding Climatemp sometime in the 1980s even though he knew at
the time that Dominic Senese claimed an ownership interest in
Climatemp.  Roche also testified that, in the 1960s, he followed
a typical procedure to cancel and transfer ownership of a stock. 
He would cancel the certificate, keep track of the stock's
history sheet and issue a new certificate when requested.  He
would also write "cancelled" across the face of the certificate. 
Regarding Dominic Senese's share of stock in Climatemp, Roche
identified his handwriting of the word "cancelled" across the
face of Dominic Senese's stock certificate number 3 and testified
that he would not have cancelled the shares if he had believed
the transfer was invalid.  Roche also testified that he was not
aware of any fraud connected to the transfer of Senese's stock.  
          In addition to the depositions, defendants also produced:
an assignment separate from certificate that transferred Victor
Comforte's shares to Expressway; resignations of Victor Comforte
and Dominic Senese from the board of directors of Broadway;
corporate ledgers indicating the transfer of Dominic Senese's
stock to Expressway; and various board meeting minutes and annual
reports that indicated that Dominic Senese was never an officer
or director of Climatemp after 1960.
         During discovery, plaintiff filed various motions to compel
production of documents and defendants filed various motions
attacking plaintiff's discovery responses.  As a result, the
trial court barred discovery of information unrelated to the
January 4, 1960, transaction or Dominic Senese's alleged
ownership in Climatemp. 
         Plaintiff filed her second amended complaint on January 13,
1995.  Defendants filed motions to dismiss the complaint pursuant
to sections 2-619 and 2-615 of the Code of Civil Procedure (735
ILCS 5/2-615, 2-619 (West 1992)).  In their section 2-619 motion
to dismiss, defendants argued that the evidence elicited in
discovery conclusively showed that Dominic Senese was no longer a
shareholder of Climatemp and that the claims asserted in the
second amended complaint were barred by laches and the applicable
statutes of limitations.  Defendants' section 2-615 motion to
dismiss pointed out the legal deficiencies in each of the
plaintiff's claims.  The trial court granted defendants' motions
to dismiss on all grounds and dismissed plaintiff's second
amended complaint with prejudice.  Thereafter, defendants moved
for sanctions against plaintiff under Supreme Court Rule 137. 134
Ill. 2d R. 137. The trial court granted defendants' request for
sanctions and directed defendants to file their petition for
fees.  Following an evidentiary hearing, the trial court awarded
attorney fees to defendants in the amount of $30,000 and costs of
$1,421.50. 
         We affirm in part and reverse in part.

ANALYSIS
                                     I
         Plaintiff first contends that the trial court erroneously
denied plaintiff's discovery requests. On December 29, 1993,
plaintiff filed a motion to compel production of documents.  The
motion asserted that defendants willfully failed to provide
conclusive documentation of Dominic Senese's sale of stock. 
Plaintiff sought evidence such as payment records or directions
to an escrow agent regarding the delivery of stock to Expressway.
In an agreed order, defendants agreed to produce all documents
and answer all deposition questions relating to Victor Comforte's
transfer of shares in Climatemp.  However, in two separate
orders, the trial court denied plaintiff's motion in all other
respects and ruled that the parties could not engage in discovery
or ask deposition questions about information unrelated to the
January 4, 1960, transaction or Dominic Senese's alleged
ownership in Climatemp.  
         Without citation to authority, plaintiff now argues that the
trial court erred in prohibiting discovery of events that
occurred after January 4, 1960.  Plaintiff argues that such
information was relevant in that payouts to Dominic Senese for
his stock were to have been executed in installment payments over
a 10-year period and Victor Comforte testified that he received
his payments over a 2«-year period.  Plaintiff contends that
defendants refused to explain what happened with Victor
Comforte's stock after January 4, 1960, and refused to state what
happened after Dominic Senese's stock was purportedly transferred
to Expressway. 
         Defendants respond that they produced all relevant and
existing information concerning Expressway's purchase of stock
from Dominic Senese and Victor Comforte in 1960.  Defendants also
contend that information such as purchasers of Climatemp's shares
after 1960 are outside the scope of the "limited discovery"
directed by the appellate court in Senese and that the trial
court properly restricted discovery to matters related to the
January 4, 1960, transaction.
         Supreme Court Rule 214 confers wide discretion on the trial
judge in control of pretrial discovery. 134 Ill. 2d R. 214;
Elmore v. Blume, 31 Ill. App. 3d 643, 648, 334 N.E.2d 431 (1975).
Our review of the record shows that, despite the court's order,
plaintiff received a substantial amount of information about
events that occurred years after 1960.  In particular, both
Victor Comforte and Thomas Roche were questioned extensively in
their depositions about a variety of issues spanning from 1958 to
the mid 1980s.  Thus, we cannot see how plaintiff was prejudiced
by the trial court's order denying her motion to compel. See
Elmore, 31 Ill. App. 3d at 648.  We therefore affirm the orders
of the trial court denying plaintiff's motion to compel.
                                    II

         We will next address the issue of laches as it is
dispositive of plaintiff's appeal.  Plaintiff contends that the
trial court erroneously dismissed the second amended complaint
based on laches.  Laches is an equitable principle that bars an
action where, because of delay in bringing suit, a party has been
misled or prejudiced or has taken a course of action different
from what the party otherwise would have taken.  Nancy s Home Of
the Stuffed Pizza, Inc. v. Cirrincione, 144 Ill. App. 3d 934,
940, 494 N.E.2d 795 (1986); Patrick Media Group, Inc. v. City of
Chicago, 255 Ill. App. 3d 1, 7, 626 N.E.2d 1066 (1993).  A
defendant must show prejudice or hardship, rather than mere
passage of time, and must demonstrate that the delay induced the
party to adversely change its position.  Patrick, 255 Ill. App.
3d at 7.  Furthermore, to raise the defense of laches the party
must plead that the opposing party had prior knowledge of the
facts giving rise to the claim (Patrick, 255 Ill. App. 3d at 7;
Zegers v. Zegers, Inc., 38 Ill. App. 3d 546, 551, 348 N.E.2d 210
(1976)), yet failed to proceed in a timely manner. Senese, 222
Ill. App. 3d at 318.
         In Senese, defendants argued that plaintiff had failed to
set forth a reasonable excuse in his complaint for the delay in
bringing suit.  222 Ill. App. 3d at 318.  Citing People ex rel.
Casey v. Health & Hospitals & Governing Comm'n, 69 Ill. 2d 108,
370 N.E.2d 499 (1977), the appellate court held that, where an
unreasonable delay appears on the face of a complaint, a
plaintiff has an affirmative duty to set forth a valid excuse to
explain the delay.  Senese, 222 Ill. App. 3d at 319.  The
appellate court concluded that plaintiff had failed to set forth
such an excuse but held that plaintiff should be allowed to amend
his complaint to allege facts that would explain the delay. 222
Ill. App. 3d at 319.  Plaintiff now asserts that well-pled facts
in the second amended complaint allege that Dominic Senese was
not aware that he was not a shareholder of Climatemp until Victor
Comforte informed him so at a meeting in the late 1980s. 
Defendants respond that plaintiff s excuse is inadequate.  We
agree.
         Defendants cite Zegers v. Zegers, Inc., 38 Ill. App. 3d 546,
348 N.E.2d 210 (1976), which we believe is instructive. In
Zegers, plaintiff was issued shares of stock in the defendant
corporation in 1934.  In 1938, plaintiff's shares were
transferred to a third party on the book and records of the
corporation and a new certificate was issued to the new
shareholder.  38 Ill. App. 3d at 549.  More than 30 years later
after his initial purchase of the stock in the corporation, the
plaintiff brought suit against Zegers, Inc., to determine his
shareholder rights and to recover dividends and other funds to
which he was allegedly entitled.
         The appellate court held that plaintiff's claim was barred
by laches.  The court rejected plaintiff's contention that he did
not learn of the dispute over his shares until he confronted the
corporation's president in 1971. 38 Ill. App. 3d at 551.  The
appellate court noted that, even though plaintiff may not have
known specific facts regarding his status as a shareholder, the
circumstances were such that a reasonable person would be
expected to make inquiry regarding the circumstances. 38 Ill.
App. 3d at 551.  The court concluded that the plaintiff made no
attempt to assert his right to shareholder status even though he
was working for the corporation in a position of authority. The
court stated in pertinent part:
         "Though the plaintiff may have been justified in not
         inquiring concerning dividends prior to 1938, while the
         corporation was apparently struggling, his failure to
         inquire concerning the lack of dividends and the absence of
         other communications despite his firsthand observations of
         the phenomenal growth of the company and the changes in its
         officers and directors in the next 32 years is inconsistent
         with his claim that he was an owner." 38 Ill. App. 3d at
         552-53.
The appellate court also held that the defendants would be
prejudiced by plaintiff's failure to assert his claim in that,
during the time that had elapsed since plaintiff first purchased
his stock, Zegers, Inc., had grown substantially.  38 Ill. App.
3d at 555.  The corporation had borrowed several million dollars
to finance its expansion.  The defendants labored, took risks and
incurred obligations to insure the success of the company. 38
Ill. App. 3d at 555.   Furthermore, plaintiff's father and
brother, who had been involved in the original issuance and
subsequent transfer of the stock, were deceased.  The court
concluded that the plaintiff's 32-year delay in asserting his
shareholder rights and obvious detriment to the defendant caused
by the delay barred his claims on the ground of laches. 38 Ill.
App. 3d at 556.
         The facts in Zegers are similar to the facts in the instant
case.  There is no evidence in the record that plaintiff
exercised due diligence to assert his shareholder rights prior to
the filing of this lawsuit in 1989. Plaintiff offers no
reasonable excuse for not pursuing his claim earlier.  
Furthermore, we agree with defendants that they would be
prejudiced if plaintiff was allowed to pursue his claim.  Many
records have been destroyed.  Plaintiff's estate was unable to
locate any documents relating to Climatemp.  Roche testified that
he destroyed Halfpenny & Hahn's remaining records of Climatemp. 
More importantly, many of the witnesses who had firsthand
knowledge of the transfer of Dominic Senese's stock are deceased. 
Dominic Senese, Anthony Sicilia, the president of Expressway
Terminals and the transferee of Dominic's stock, and Harold
Halfpenny, corporate counsel to Broadway Sheet Metal Works in
1960, are all deceased.  Because of the death of these witnesses,
we cannot say that defendants would not be prejudiced. See
Zegers, 38 Ill. App. 3d at 555; Hull v. Illinois State Bank, 129
Ill. App. 2d 203, 262 N.E.2d 603 (1970) (abstract of op.). In
addition,   For these reasons, we hold that plaintiff's claim is
barred by laches. 
                                    III
         Plaintiff also contends that the trial court erred in
dismissing plaintiff's complaint under sections 2-615 and 2-619
of the Code of Civil Procedure (735 ILCS 5/2-615, 2-619 (West
1992)).  Plaintiff argues that her complaint provides well-pled
allegations that support the various remedies sought in her
complaint.  We disagree.  In our view, plaintiff has not set
forth sufficient evidence to support her allegations. Rather,
deposition testimony and the documents produced by defendants
indicate that Dominic Senese transferred his stock to Expressway
Terminals.
                                    IV
         Plaintiff also argues that the trial court abused its
discretion in granting defendants motion for sanctions under
Supreme Court Rule 137 (134 Ill. 2d R. 137).
         In their motion for sanctions against plaintiff, defendants
asserted that plaintiff's second amended complaint and motion for
summary judgment was frivolous and that plaintiff should have
chosen not to proceed with the second amended complaint. The
trial court granted defendants' motion.  The court agreed with
defendants and noted that there was no explanation in plaintiff's
second amended complaint for the 30-year delay in plaintiff's
initiation of litigation, that the evidence compiled during
discovery indicated that Dominic Senese transferred his shares in
1960, and that any claims that Dominic did not learn about the
transfer until the mid 1980s were proven false by discovery.  The
trial court also stated that plaintiff failed to join Expressway
Terminals as an indispensable party, as requested by the
appellate court, and failed to explain the absence of Expressway
Terminals as a party to the suit. The trial court also stated
that no facts supported any of the plaintiff's allegations of
fraud and that identical fraud allegations had previously been
dismissed. The court concluded that sanctions were appropriate
under Supreme Court Rule 137 in that the filing of the second
amended complaint caused unnecessary delays and increased the
cost of litigation.
         Supreme Court Rule 137 allows a court to impose sanctions
against a party or counsel who files a pleading or motion that is
not well grounded in fact, is not warranted by existing law or a
good-faith argument for the extension, modification, or reversal
of existing law, or is interposed for any improper purpose. 134
Ill. 2d R. 137.  The purpose of the rule is to prevent abuse of
the judicial process by penalizing claimants who bring vexatious
and harassing actions based upon unsupported allegations of fact
or law.  Fremarek v. John Hancock Mutual Life Insurance Co., 272
Ill. App. 3d 1067, 1074, 651 N.E.2d 601 (1995).  The rule is not
intended to penalize litigants for their lack of success; rather,
its aim is to restrict litigants who plead frivolous or false
matters without any basis in the law.  Fremarek, 272 Ill. App. 3d
at 1074; Fischer v. Brombolich, 246 Ill. App. 3d 660, 664, 616 N.E.2d 743 (1993).  The determination of whether to impose
sanctions rests within the sound discretion of the trial court
and that decision is entitled to great weight and will not be
disturbed on review absent an abuse of discretion. Bennet &
Kahnweiler, Inc. v. American National Bank & Trust Co., 256 Ill.
App. 3d 1002, 1007, 628 N.E.2d 426 (1993).  A trial court is said
to exceed its discretion regarding the imposition of sanctions
under Rule 137 only where no reasonable person would take the
view adopted by it; if reasonable people would differ as to the
propriety of the court's action, a reviewing court cannot say
that the trial court exceeded its discretion.  Board of Library
Trustees v. Cinco Construction, Inc., 276 Ill. App. 3d 417, 426,
658 N.E.2d 473 (1995); Lewy v. Koeckritz International, Inc., 211
Ill. App. 3d 330, 334, 570 N.E.2d 361 (1991).  
         In our view, the trial court abused its discretion in
granting defendants' motion for sanctions against the plaintiff. 
We agree with the trial court that plaintiff did not provide an
adequate excuse to defendants' defense of laches.  However, we
cannot say that plaintiff should not have filed her second
amended complaint.  It is possible that plaintiff filed the 
complaint pursuant to a good-faith belief that subsequent
information would lead to a success on the merits.  Plaintiff
should not be sanctioned for such a belief.  Accordingly, we
reverse the trial court's orders granting defendants' motion for
sanctions. 
                                     V
         Our final consideration for review is defendants' cross-
appeal in which defendants argue that the trial court abused its
discretion by: (1) granting plaintiff's motion to substitute the
executrix; (2) denying the defendants' motion to strike
plaintiff's answers to defendants' interrogatories and for
failing to dismiss plaintiff's complaint accordingly; and (3) by
reducing the amount of attorney fees awarded to defendants.  
         Regarding plaintiff's motion to substitute an executrix,
defendants contend that Dominic Senese's death was suggested of
record and incorporated by agreement in an order entered by the
trial court on May 22, 1992, and that the motion for
substitution, although due to be filed within 90 days by August
20, 1992, was not filed until December 8, 1992, which was 200
days after the suggestion of death on the record.
         Under section 2-1008(b) of the Illinois Code of Civil
Procedure (735 ILCS 5/2-1008(b) (West 1992)), if a party to an
action dies and the action is one that survives, the proper party
or parties may be substituted by order of the court upon motion. 
If a motion to substitute is not filed within 90 days after the
death is suggested of record, the statute provides that the
action may be dismissed as to the deceased party. 735 ILCS 5/2-
1008(b) (West 1992).  The language of this section uses the
permissive "may" rather than the mandatory "shall"; therefore,
the court has discretion as to whether to dismiss the action.
McGill v. Lazzaro, 62 Ill. App. 3d 151, 152-53, 279 N.E.2d 16
(1978).  
         The Illinois Supreme Court has held that, when determining
whether there was error in permitting a party substitution under
section 2-1008(b), the overriding consideration on appeal is
whether substantial justice is being done between the litigants
and whether it was reasonable, under the circumstances, to compel
the other party to proceed on the merits. Sickler v. National
Diary Products Corp., 67 Ill. 2d 229, 234, 367 N.E.2d 674 (1977). 
Thus, the ultimate question on review is whether the trial court
properly exercised its discretion in an attempt to serve justice.
Baltz v. McCormack, 66 Ill. App. 3d 76, 77, 383 N.E.2d 643
(1978).  In Sickler, the supreme court reversed an order of
dismissal relative to an untimely filed substitution motion.  The
court analyzed whether "substantial justice" had been done and
concluded that, even though the motion to substitute was not
timely, the record showed no prejudice to the opposing party
because of the delay.  Sickler, 67 Ill. 2d  at 234.
         Similarly, in the case sub judice, there is no indication in
the record, nor did defendants argue, that they were prejudiced
by plaintiff's delay in filing the motion to substitute. We
cannot conclude that justice was not served by the trial court's
decision or that the trial court abused its discretion in
allowing the substitution.
         Relative to defendants' motion to strike plaintiff's answer
to defendants' interrogatories, defendants argue that plaintiff
ignored court orders and was allowed to be dilatory and
uncooperative in conducting discovery, in violation of Supreme
Court Rule 219(c), which allows a trial court to enter a just
order where a party unreasonably refuses to comply with discovery
or a discovery order (134 Ill. 2d R. 219(c)).  Defendants argue
that the trial court abused its discretion in denying their
request to dismiss plaintiff's complaint with prejudice for
plaintiff's conduct during discovery. Specifically, defendants
argue that plaintiff failed to comply with Supreme Court Rule
213(d) (134 Ill. 2d R. 213(d)), which requires a party to serve a
sworn answer or an objection to an interrogatory. Defendants
point to plaintiff's filing of an unverified response to
defendants' first request for production of documents and an
unsigned answer to defendants' first set of interrogatories.  The
trial court characterized the plaintiff's answers as
nonresponsive and ordered the plaintiff to answer interrogatories
and complete discovery within 21 days.  Thereafter, plaintiff
filed a verified answer to the interrogatories that defendants
contend was evasive and nonresponsive.  Defendants moved to
strike these answers and requested sanctions.  Their motion was
denied. 
         The imposition of sanctions for noncompliance with discovery
is a matter generally left to the sound discretion of the trial
court, and its decision will not be reversed absent an abuse of
discretion.  Donner v. Deere & Co., 255 Ill. App. 3d 837, 841,
628 N.E.2d 1171 (1994).  However, the dismissal of an action as a
sanction is a drastic remedy that should only be used as a last
resort when all other enforcement powers at the court's disposal
have failed to advance the litigation.  Donner, 255 Ill. App. 3d
at 841; see also Gallo v. Henke, 107 Ill. App. 3d 21, 27, 436 N.E.2d 1068 (1982)(dismissal with prejudice was too drastic after
the plaintiff failed to appear for her deposition only once).  
         Defendants cite Cruz v. Columbus-Cuneo-Cabrini Medical
Center, 264 Ill. App. 3d 633, 636 N.E.2d 908 (1994), to support
their position that dismissal with prejudice would have been an
appropriate sanction for plaintiffs' failure to comply with
discovery orders. In Cruz, the plaintiffs failed to appear at two
hearings, failed to comply with four discovery orders, failed to
file a timely motion to vacate and then failed to pursue that
motion within a reasonable time.  The appellate court
characterized plaintiffs' conduct as a pattern of neglect and
disregard for the court's authority and upheld the trial court's
dismissal of the plaintiffs' complaint as a sanction for the
plaintiffs' noncompliance.  The appellate court noted that,
although dismissal with prejudice can be a drastic sanction in
some cases, it will be appropriate when a party demonstrates
unwarranted disregard for a court's authority or when a party
exhibits "deliberate and contumacious disregard for discovery
orders."  264 Ill. App 3d at 645.  
         Cruz is inapposite to the instant case.  Here, we cannot say
that plaintiff's alleged conduct demonstrated a deliberate
disregard for the court.  Moreover, the trial court had
sufficient means at its disposal by which to advance the
litigation as was evidenced by the court's order to plaintiff to
answer defendants' interrogatories and complete discovery within
21 days. We cannot see how this order did not remedy the
situation. Therefore, we affirm the trial court's order denying
defendants' motion to strike plaintiff's answers to
interrogatories and requesting sanctions. 
         Finally, we see no need to address defendants' contention
that the trial court abused it discretion in its award to
defendants of attorney fees for Supreme Court Rule 137 sanctions. 
We have reversed the trial court's order of sanctions against the
plaintiff.  Accordingly, we reverse that part of the trial
court's order granting attorney fees to defendants in the amount
of $31,421.59.  
         For the foregoing reasons, we affirm in part and reverse in
part.
         GORDON and LEAVITT, JJ., concur.