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Bazzell-phillips & Assoc. v. Cole Hospital

OPINION FILED OCTOBER 31, 1977.

BAZZELL-PHILLIPS AND ASSOCIATES, INC., ET AL., PLAINTIFFS-APPELLEES,

v.

COLE HOSPITAL, INC., DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Champaign County; the Hon. ROBERT J. STEIGMANN, Judge, presiding.

MR. JUSTICE MILLS DELIVERED THE OPINION OF THE COURT:

The trial judge and defense counsel here were obviously locked in a combat of personalities.

• 1 Even the cold black and white record before us communicates an underlying and mutual antagonism between the two. The acerbic, nettled and rasping nature of the trial judge's remarks reflect the basic tenor of the exchanges — and they are neither admirable nor to be overlooked or condoned. Further, the presiding judge here came within a hair of injecting himself in an adversarial role in his relation to defense counsel.

Having said this, however — and on the merits — this case does not disclose any prejudicial error and we affirm.

Bazzell-Phillips and Phillips and Associates (a joint venture) entered into a contract with Cole Hospital, Inc., to provide architectural services, and Brown, Davis, Mullins and Associates, Inc. (Brown) is a subcontractor who was hired by the joint venture to do mechanical engineering work on the project. On January 3, 1975, the hospital sent the architects a letter asking them to stop services on the contract except for certain specified work to be finished. The architects then sent numerous bills to Cole Hospital who responded by promising payment but never followed through with tender of the fees.

Upon failure to collect, the plaintiffs brought suit seeking to foreclose mechanic's liens on the hospital. A bench trial was held and the court found for the plaintiffs, entering judgment in favor of Bazzell-Phillips and Phillips jointly for $60,125.81 and in favor of Brown for $12,800. The hospital raises five issues on appeal, all of which concern alleged errors in the trial court's handling of the case.

I

• 2 First, Cole contends the trial court erred in denying its motion to amend its answer to plaintiffs' complaint in order to add an affirmative defense and counterclaim revolving around the alleged illegality of the contract. Such amendments should be liberally allowed. (Ill. Rev. Stat. 1975, ch. 110, par. 46; Halberstadt v. Harris Trust & Savings Bank (1973), 55 Ill.2d 121, 302 N.E.2d 64.) However, an examination of the facts here do not show that the spirit of section 46 is violated by the trial court's denial of the proposed amendments. The trial in this case was originally set for January 28, 1977, but due to weather conditions was postponed to March 1, thus allowing Cole Hospital ample time to prepare its defense. In spite of this, the hospital did not offer the amendment until at a pretrial conference on February 23. The trial judge denied the motion and supported his refusal with the following reasons: (1) the matters set forth in the motion were collateral and extraneous to the issues before the court; (2) the defendant had not pursued discovery; (3) the defense sought to be raised by the amendment could have been easily ascertained at an earlier time; and (4) the amendment would result in a substantial hardship to the plaintiffs since the trial was to commence in five days.

It is well within the sound discretion of the court to refuse such an amendment when it seeks to interpose a defense not before pleaded. (Goldstein v. Chicago City Ry. Co. (1919), 286 Ill. 297, 121 N.E. 726; Nitrin, Inc. v. American Motorists Insurance Co. (1968), 94 Ill. App.2d 197, 236 N.E.2d 737.) With the antecedent facts of this litigation in mind, it was not an abuse of the trial court's discretion to deny the amendment.

II

Cole's second argument is predicated on its belief that its right of cross-examination was unduly limited. Specifically, the hospital contends that it was not allowed to cross-examine plaintiffs' Exhibit #4 which contained files showing the internal office file work on the contract in question. We cannot agree and find that the record clearly shows that the witness had been tendered to defense counsel solely for the limited purpose of cross-examining on the foundation of the exhibit at that time. The court specifically advised defense counsel that he could conduct a general cross-examination later:

"You may proceed along that line of inquiry, Mr. Ermentrout, at a later point. This is a tender of a witness to you solely and only with regard to the offer of the exhibits, to cross examination (sic) at this time concerning these exhibits to which you might object. When the exhibits have been ruled upon and the witness has been tendered for general cross examination you may proceed along this line of inquiry."

Thus, defendant was not precluded from conducting a general cross-examination and his failure to do so is not ...


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