delivered the opinion of the court:
Plаintiff, Frank Dyduch, appeals the directed findings entered in favor of defendant, Crystal Green Corporation, on both counts of plaintiff’s complaint for negligence and breach of contract and from an order requiring plaintiff to pay defendant’s costs and attorney fees as a sanction for a discovery violation. Plaintiff contends that the directеd findings were against the manifest weight of the evidence and the award of costs and fees was an abuse of discretion.
Defendant is a lawn-care business, and, in 1981, plaintiff hired defendant to provide certain lawn-care services at plaintiff’s home in Algonquin. In his complaint, plaintiff alleged that he had retained defendant to “examine, diagnose, treat, fertilize, and provide insect and weed control as recommended by [defendant for [plaintiffs lawn” and that defendant had appeared periodically each year to do so. In 1988 and 1989, plaintiff’s lawn was allegedly damaged by chinch bugs, sod worms and grubs. In count I, plaintiff alleged that defendant had a duty to inspect properly, diagnose and treat the lawn and thаt, in disregard of that duty, defendant negligently failed to conduct regular and thorough inspections, diagnose and treat insect infestations and apply insecticides as necessary. In count II, plaintiff alleged that defendant had breached its agreement to provide proper lawn maintenance.
There is no verbatim transcript of the trial, and the evidеnce is presented on appeal by means of a certified bystander’s report. Plaintiff testified at trial that in May 1981 defendant, through a representative
In the summer of 1988, the City of Algonquin instituted a partial ban on lawn watering, and such watering was restricted to four hours per day on each of three designated days per week. Plaintiff obsеrved that part of his lawn had become white and brown. He pointed this out to defendant during the late summer application of fertilizer and weed-control treatment. Defendant’s representative responded that many lawns were similarly affected due to the severe drought.
In May 1989, plaintiff again pointed out the condition of the lawn during the applicаtion of fertilizer and weed-control treatment. Defendant’s president, John Eckhardt, came out and inspected the lawn and opined that drought and fusarium blight had probably caused the damage. However, plaintiff had done some dethatching, laid new topsoil and reseeded part of the lawn prior to such inspection. In June, Steve Eckhardt again inspected plaintiff’s lawn, in response to plaintiff’s threat to cancel the service if defendant did not correct the problem, and again told plaintiff the problem was drought and fusarium blight. Plaintiff cancelled defendant’s service and contacted Paul Dones of Chemlawn, who in June 1989 did an analysis of the lawn and advised plaintiff that the lawn had been damaged by chinсh bugs the previous year. The cost to repair the damage to plaintiff’s lawn was estimated to be $2,646, which included new topsoil, reseeding and resodding.
Chinch bugs are very difficult to identify, but Dones’ opinion was based on the pattern of damage and discoloration. However, he did not see any chinch bugs when he examined the lawn because chinch bugs are destroyed by heavy watering, and the area had experienced heavy rainfall in the spring of 1989.
Lawn service representatives, who apply fertilizer and other treatments, are required to take certain courses, pass a test, and be certified by the State, and such training should enable a certified applicator to recognize lawn problеms. However, because applicators only see a customer’s lawn four times a year, the customer’s prompt notification of any problems or changes in his lawn is essential.
Defendant moved for directed findings as to both counts of plaintiff’s claim at the close of plaintiff’s case. Because the agreement between the parties wаs only for the application of fertilizer and weed-control and insect-control services were never requested by plaintiff, defendant asserted that plaintiff’s contract claim failed. Plaintiff similarly failed to establish negligence because defendant owed no duty to plaintiff, which duty was defined by the contract, and, therefore, plaintiff’s negligencе claim failed. Plaintiff, on the other hand, argued that defendant had agreed to maintain, protect, and preserve plaintiff’s lawn and such agreement included identifying any insect problems. Plaintiff relied on defendant to keep him informed of problems with the lawn, and defendant breached its duty to detect insect damage, which breach proximately causеd the damage to plaintiff’s lawn.
The trial court found that the only agreement that plaintiff had established was for fertilizer and weed-control services and not for insect control. Defendant did not have a duty to inspect the lawn for insect damage. The court granted the motion for directed findings as to both counts of the complaint. Plaintiff’s subsequent motion to rеconsider was denied, and plaintiff filed
Pursuant to section 2 — 1110 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1110) in all cases tried without а jury, a defendant may, at the close of plaintiff’s case, move for a directed finding or judgment in its favor. In ruling on a motion for a directed finding, the court must apply a two-part analysis, first determining as a matter of law whether a plaintiff has presented a prima facie case and entering judgment for the defendant if a plaintiff has failed to so do. (Ill. Rev. Stat. 1989, ch. 110, рar. 2 — 1110; Kokinis v. Kotrich (1980),
In order to meet his burden of proof on the breach of contract count, plaintiff was required to establish offer, acceptance, consideration, the definite and certain terms of the contract, plaintiff’s performance, defendant’s breach of the terms of the contract, and damage resulting from that breаch. (See Mannion v. Stallings & Co. (1990),
According to the bystander’s report, plaintiff testified that in 1981 he and defendant orally agreed “to begin a lawn program consisting of four applications of fertilizer and weed and feed per year.” However, plaintiff “declined application of disease control and insect control which were available for additional fees.” Finally, although plaintiff “believed that [defendant] was to maintain his lawn in excellent condition,” plaintiff “never entered into a written agreement with [defendant] to provide insect control.”
We agree with the trial court that plaintiff’s evidence established an agreement for fertilization and weed control only. Although plaintiff may have “believed” it to be the case, he did not present any evidence that defendant agreed to maintain the lawn in any condition, to inspect the lawn, to diagnose problems in the lawn, or to recоmmend or provide additional services if necessary. Rather, plaintiff initiated additional services when necessary, although only to control weeds. Plaintiff’s own expert testified that the customer normally was responsible to notify a lawn-care provider of any changes in a serviced lawn. Although the evidence indicated that the damage to the lаwn was caused by bugs and/or drought, there was no evidence of improper fertilization or weed control, which was the extent of defendant’s contractual obligations to plaintiff.
Plaintiff’s reliance in part on defendant’s 1990 brochure wherein defendant
Plaintiff also contends that the trial court erred in entering a directed finding on the negligence count. We again disagree. Where a defendant is chаrged with negligence because of his failure to perform an act allegedly required by a contract, the question of whether the defendant actually had a duty to perform the act usually must be determined from the terms of the contract, and the defendant’s duty will not be extended beyond the duties described in the contract. (Perkaus v. Chicago Catholic High Schоol Athletic League (1986),
Finally, plaintiff contends that the court erred in granting defendant’s motion for costs and attorney fees as a sanction for a discovery violation. After the cоurt granted the motion for directed findings, defendant made an oral motion for sanctions. Defendant alleged that plaintiff had willfully withheld the name of a witness, Bruce Spangenberg, who had inspected plaintiff’s lawn. Unaware of that fact, defendant retained Mr. Spangenberg as its own expert witness shortly before trial. Prior to trial, defense counsel had only presеnted Spangenberg with a hypothetical set of facts, and Spangenberg was not aware of plaintiff’s identity. However, when Spangenberg appeared in court on the first day of trial and became aware of plaintiff’s identity, Spangenberg recalled that he had personally examined plaintiff’s lawn in June 1989 and that he had written to plaintiff regarding the examination. In his report, Spangenberg said that the lawn problem was “drought injury, possibly combined with insect damage,” and the insects mentioned were chinch bugs and sod webworms. Spangenberg informed defense counsel of these facts, and defendant sought sanctions against plaintiff for failure to disclose either Spangenberg’s identity or report, despite specifiс discovery requests, to which plaintiff responded without objection.
Defendant had requested production of “[a]ll contracts, proposals, invoices, repair bills, or any other indicia of inspection, repair, or other work performed *** on the lawn,” to which plaintiff had failed to produce Spangenberg’s report. Another production request sought “[a] list giving the names, addresses and specialties of all expert witnesses,” in response to which plaintiff had also omitted Spangenberg’s name. Plaintiff had similarly failed to disclose Spangenberg’s identity or report in response to interrogatories seeking “the name and address of [anyone] who repaired or estimated the damage” to plaintiff’s lawn, and “statements of any witness, *** the name and address of each such witness, the date of statement and *** whether such statement was written or oral.”
Plaintiff’s counsel argued that the failure to disclose was inadvertent and not prejudicial. However, plaintiff told the court that he “was aware of Spangenberg’s report but did not want to produce it.” The trial cоurt found that plaintiff had willfully withheld Spangenberg’s name and report, and it granted the motion for sanctions. The court awarded defendant all of its costs in the litigation and one-half of its attorney fees for a total of $5,036.81. On appeal, plaintiff contends that the award of all of defendant’s costs and one-half of its attorney fees was an abuse of the trial court’s discretion because the costs and fees were not incurred by defendant as a result of the misconduct, and because defendant
Pursuant to Supreme Court Rule 219(c) (134 Ill. 2d R. 219(c)), if a party unreasonably refuses to comply with the rules of discovery, the court, on motion, may order sanctions against the offending party, and the sanctions may include the paymеnt of “the reasonable expenses, including attorney’s fees incurred by any party as a result of the misconduct” (emphasis added) (134 Ill. 2d R. 219(c)). The imposition of sanctions is a matter largely within the discretion of the trial court and should not be disturbed on review unless the order constitutes an abuse of discretion. Kubian v. Labinsky (1988),
Although the trial court is not limited to the sanctions enumerated in Rule 219 for discovery violations and may enter “such orders as are just,” our courts have repeatedly stated that the purpose of sanctions for discovery violations is to accomplish discovery rather than to inflict punishment. (People ex rel. General Motors Corp. v. Bua (1967),
In this case, the misconduct, which plaintiff does not deny, was the failure to reveal the name аnd report of Bruce Spangenberg in plaintiff’s answers to defendant’s interrogatories. We fail to see how the costs and fees awarded relate to the misconduct that occurred. We conclude that the trial court imposed this sanction strictly as a punishment for the discovery violation and that this was an abuse of discretion. Thus, the award of defendant’s costs and attorney fees is vacated, and the cause is remanded to determine what costs and fees, if any, were directly related to and incurred as a direct result of plaintiff’s misconduct.
In determining that it was an abuse of discretion to impose a monetary penalty in excess of the expenses incurred as a result of the discovery misconduct, we have declined to follow the reasoning of the Appellate Court, First District, in Transamerica Insurance Group v. Lee (1987),
The directed findings entered in favor of defendant are affirmed, the award of costs and attorney fees is vacated, and the cause is remanded for further proceedings consistent with this opinion.
UNVERZAGT and McLAREN, JJ., concur.