1 IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT
2 CHAMPAIGN COUNTY, ILLINOIS
3 _________________________________________________________
JAMES F. OSTERBUR, )
4 )
Plaintiff, )
5 )
v. ) No. 02-L-126
6 )
J. BARRY HOWELL, D.D.S., )
7 )
Defendant. )
8 __________________________________________________________
9
10 REPORT OF PROCEEDINGS had in the above-entitled
11 cause on September 3, 2002, before the HONORABLE JOHN R.
12 DELAMAR, Judge Presiding.
13
14 APPEARANCES:
15 Mr. James F. Osterbur
Plaintiff
16
Mr. Carl Webber
17 Attorney at Law
for the Defendant
18
19
20
21 __________________________________________________________
22 Melissa Clagg, RDR
License No. 84-2876
23 Official Court Reporter
Champaign County Courthouse
24 Urbana, Illinois 61801
1
1 SEPTEMBER 3, 2002
2 (The following proceedings were transcribed from a
3 tape recording.)
4 THE COURT: 2002-L-126, James Osterbur v. J. Barry
5 Howell. Plaintiff appears personally. Mr. Webber appears
6 on behalf of the Defendant.
7 Cause called for hearing on Defendant's motion to
8 dismiss.
9 Mr. Webber?
10 MR. WEBBER: Your Honor, I wonder if I would have
11 permission to ask Doug Pyle to sit with me, one of our law
12 clerks, who's worked on this.
13 THE COURT: That's fine. Would you --
14 MR. WEBBER: Thank you.
15 THE COURT: -- please spell his last name for the
16 record.
17 MR. WEBBER: P-y-l-e.
18 THE COURT: Okay.
19 MR. WEBBER: Thank you.
20 THE COURT: Certainly.
21 MR. WEBBER: Our materials in response have been,
22 I think, sufficient to spell out the concerns we have. I
23 don't want to recite the issues there, because I know from
24 your history, you've read them.
2
1 We've been placed in the position of having to
2 carefully respond to materials or risk proceeding to trial
3 on this complaint. We have not been able to tell exactly
4 what it is. If it's a contract action, then it should
5 certainly just be pled as a contract and plead to breach.
6 We would suggest that the harassment should be
7 deleted and the extended assays should be deleted and just
8 have a complaint that indicates what the complaint is
9 about.
10 As the Court might consider, it's so improperly
11 done that it's to a very great degree more difficult to
12 respond to this kind of a complaint than one that would be
13 well drafted.
14 We would appreciate the Court's consideration of
15 the defense position that the motion to dismiss be granted
16 based upon the fact that the complaint is insufficient in
17 law and in fact, for that matter, and that as indicated
18 and shown in the response which was provided on Friday and
19 which Mr. Osterbur said that he got on Saturday, it shows
20 that this has been done before. He's been suggested by
21 the Appellate Court that this is not the appropriate way
22 to do it; wasn't even allowed to be appealed. And we
23 believe that he's under very substantial notice that this
24 kind of an action is not proper and, therefore, request
3
1 attorney's fees.
2 We would believe that it's appropriate and request
3 that a separate hearing be set for those amounts.
4 Thank you.
5 THE COURT: Thank you. Mr. Osterbur?
6 MR. OSTERBUR: I said enough, sir.
7 THE COURT: This 92-S-1561, I take it this arose
8 out of something other than the matter that's currently
9 before me?
10 MR. WEBBER: Yes, sir.
11 THE COURT: Okay. Well, the motion to dismiss is
12 well-taken. Most certainly, I understand and at times
13 share frustration with some of the procedural requirements
14 that seem to handcuff us on occasion in civil proceedings.
15 Those that upon which the Defendant relies in this motion
16 to dismiss are well-taken. They've got a basis and
17 practical necessity. And I don't believe a defendant can
18 fairly be called upon to respond to this complaint and
19 that it is not a plain and concise statement of a cause of
20 action, at least as the common law or statute recognizes
21 in Illinois at this time.
22 I think the complaint is very defective.
23 The motion to dismiss is allowed.
24 However, the request for sanctions at this time is
4
1 denied, given the fact that this is apparently a
2 proceeding separate and apart from that which was the
3 subject of the earlier Appellate Court opinion. So, I
4 don't believe sanctions would be appropriate.
5 However, the motion to dismiss is allowed. No
6 written order is necessary.
7 Anything further on behalf of the Defendant this
8 morning?
9 MR. WEBBER: No. Thank you.
10 THE COURT: Anything further on your behalf,
11 Mr. Osterbur?
12 MR. OSTEBUR: Does that mean I pay him the 87
13 dollars that he requested or no?
14 THE COURT: No, I've simply dismissed the case. I
15 have not imposed any sanctions at this point.
16 MR. OSTERBUR: Thank you.
17 THE COURT: All right. Okay. Thank you.
18 (PROCEEDINGS ADJOURNED.)
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1 IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT
2 CHAMPAIGN COUNTY, ILLINOIS
3
4 I, Melissa Clagg, an Official Court Reporter for
5 the Circuit Court of Champaign County, Sixth Judicial
6 Circuit of Illinois, do hereby certify that I caused the
7 foregoing to be transcribed into typewriting, which I
8 hereby certify to be a true and accurate Report of
9 Proceedings had before the Honorable John R. DeLaMar,
10 Judge Presiding.
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12
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17
18 ____________________________
19 Official Court Reporter
20
21
22
23 Dated this 25th
24 day of September, 2002
6