Pizza Hut counters Maag with motion for sanctions

Steve Korris Nov. 28, 2008, 5:38am


Pizza Hut of America attorney Andrew Miller of Hinsdale has countered a motion for sanctions from Thomas Maag of Edwardsville with a motion for sanctions against Maag.

Miller wrote that Maag "seemingly seeks to mislead the court by misstating the law."

Miller's Nov. 21 motion also opposed Maag's bid to compel testimony from pizza delivery driver Chris Carnes about conversations with Miller associate Jennifer Kunze.

Maag sought on Nov. 6 to impose sanctions and compel testimony, after Kunze advised Carnes not to answer questions in a deposition about their conversations.

Maag deposed Carnes on Nov. 3, in a suit he filed for Amanda Verett last year.

Verett, herself an attorney, blames Pizza Hut of America for injuries she suffered while opening a door at a Pizza Hut in Troy.

She also seeks damages from Troy policeman Clarence Jackson, claiming he pulled one way on the door while she pulled the other way.

Maag's motion to compel argued that attorney client privilege did not protect Carnes and Kunze because Carnes was not in the control group of Pizza Hut.

"It is unthinkable that an attorney practicing law in Illinois today would be unaware of this basic tenet of Illinois law," he wrote.

He requested another deposition and proposed to sanction Pizza Hut by assessing all costs of a second deposition against it, plus a fee for drafting and filing the motion.

Miller responded that the "control group doctrine" did not apply.

In an identical case from 1995, he wrote, an Illinois appeals court denied a motion to produce notes from a hospital's attorney about conversations with a nurse.

"The court found the fact that the attorney represented the nurse during her deposition to be sufficient to establish an attorney client relationship," he wrote.

Miller wrote that Maag offered no case law or other legal support for his argument.

He wrote that Maag failed to attach a transcript of the deposition.

"Instead, he is essentially testifying as to facts and events and asking the court to accept his testimony as credible," Miller wrote.

Madison County Circuit Judge Nicholas Byron presided over the case but since he is retiring, Chief Judge Ann Callis will assign someone else.

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