MADISON - ST. CLAIR RECORD

After attorney Lanny Darr told Madison County Circuit Judge Andy Matoesian that mold damaged everything in an apartment and attorney Troy Bozarth said mold damaged nothing, Matoesian decided to stop their bickering and start gathering facts.

At a July 7 hearing, Matoesian denied a motion to dismiss a suit that Kesha Manning filed last year against owners of the Bissell Apartments in Venice.

Darr proposes to certify Manning as representative of all Bissell residents in a class action claim over mold.

In a case with a history of friction, Bozarth turned up the heat for the hearing by calling not only a motion to dismiss, but also a motion for sanctions against Darr.

"This suit revolves around a low income housing complex in Venice, Illinois," said Bozarth.

"The buildings were run into the ground and in disrepair. They had a lot of problems, including mold infestation. My client purchased the apartments and has refurbished them."

Darr responded, "He is making allegations of sanctions for failure of discovery. What he is really wanting to do is try to argue my guys are good guys and, you know, let him argue the sanction motion."

Bickering begins

Bozarth: "What I really want to do is get my point out and argue my motion and this is attached to my motion."

Darr: "And it's irrelevant."

Bozarth: "It's absolutely not irrelevant."

Matoesian said, "Let's see."

Bozarth said Matoesian should impose sanctions because Darr did not comply with his orders.

Bozarth: "You told him, that's it. Last chance. Don't do it again. Fine. So we didn't have a record that day. Lanny is going to shake his head and disagree, but that's what was said."

Bozarth said he sent interrogatories to plaintiffs asking what property was damaged.

Bozarth: "You know what they said? None at this time."

Darr: "That's not true."

Bozarth: "It is."

Bozarth held up paper and said, "Sworn affidavit from both plaintiffs saying they have no property that has been damaged at this time."

Darr also showed papers to Matoesian. He said, "They have just pounded us with discovery."

Matoesian: "What is all that?"

Darr: "That's all my experts' reports."

Matoesian: "Did you list what items were damaged?"

Darr: "It's our contention everything in the apartment is affected by mold and everything has to be cleaned. That's what our expert says."

"We made the apartment available to them. They have a video tape of every bit of the contents in that apartment."

Matoesian asked Bozarth if he had a videotape. Bozarth said yes.

Darr: "You then say, give them a list of the property, and if you have any receipts for them, give them the receipts. We don't have any receipts for shoes and socks."

Darr said they had a contentious hearing May 20, 2005.

Darr: "Judge Mendelsohn almost threw Mr. Jacobson in jail."

Matoesian: "Who is Jacobson?"

Darr: "He's the guy that won't-"

Bozarth: "That's absolutely ridiculous. He is co-counsel. He's in Michigan."

"Get the transcript. Let's not just hear your version. Get the transcript. That has nothing to do with what's going on today."

Darr: "There's never been a scheduling conference. There's never been a discovery cut-off."

"They haven't taken my client's deposition or expert's deposition." Darr called it scorched earth and said, "The reason it's scorched earth, and this is why I bring it back to the time Mr. Jacobson almost got thrown into jail -"

Bozarth: "That's absolutely untrue."

Matoesian: "It's argument. I've heard it."

Darr: "They are getting Troy to do their bidding. I like Troy and he is a good lawyer, but this is nonsense to sit here and say this is sanctionable conduct when basically it's just typical discovery."

Matoesian said to Bozarth, "One last shot."

Bozarth: "This is the second time you ordered something and
Lanny blew it off. That's not typical for my office and it shouldn't be typical for him or anybody in front of this Judge."

"Why do I need to take her deposition when she swears under oath she doesn't have any property damage?"

Darr: "All she said is she doesn't have an itemized list."

Bozarth: "That's not what she answered."

Matoesian: "I'll deny both motions, the motion for sanctions and the motion to dismiss. Where does the case stand?"

Darr: "They know all of the evidence. They know all the property. They can take our people's deposition. It's a pretty simple case."

Matoesian said to Bozarth, "Why don't you take the depositions. It might help."