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Schumann v. Ipco Hospital Supply Corp.





APPEAL from the Circuit Court of Cook County; the Hon. WARREN WOLFSON, Judge, presiding.


Rehearing denied April 6, 1981.

This action for alleged misappropriation of a trade secret was terminated by entry of a summary judgment in favor of IPCO Hospital Supply Corporation, Nobilium Processing Company of Chicago, Inc., and Nobilium Products, Inc., (defendants). Allan H. Schumann (plaintiff) has appealed.

A threshold question results from the motion by defendants for leave to file in this court a two-volume supplement to the record. Supplemental volume I contains pages C-663 to C-1209 and volume II, pages 1210 to and including 1679. This supplemental record includes matters and documents not previously transmitted to this court. In the true litigious spirit, defendants filed a motion for leave to file this supplemental record; plaintiff filed objections to the motion; defendants filed a reply to the objection of plaintiff; and plaintiff filed an answer to the reply. We have taken the motion with the case.

On November 25, 1980, after hearing argument of counsel, the trial judge entered an order directing the clerk of the circuit court to certify this supplemental material to this court. This order specified the depositions of Robert Gallagher, Earl Gough (two depositions), John Hammerle, and Joe J. Simmons. The order also included a copy of the deposition of plaintiff and a post-hearing memorandum and affidavit served by plaintiff on February 25, 1980. The trial court added the following to the order:

"This Order does not reach the question of whether the transcripts were properly filed."

It is the theory of defendants that these additional matters were tendered to the trial judge in open court, were before him, and were considered by the court and by both counsel when the motion for summary judgment was heard. It is plaintiff's theory these items were not physically filed with the clerk of the circuit court at the time of the entry of the final order for summary judgment and, therefore, could not be considered by this court. Before entering this order, the trial judge stated he relied on these matters, which were filed with him, and also stated, "Maybe somebody neglected to put a stamp on it."

The trial court considered the entire matter as a motion under Supreme Court Rule 329 which permits a record to be supplemented "to present fully and fairly the questions involved * * *." Omissions from the record may be corrected "by the trial court, either before or after the record is transmitted to the reviewing court, or by the reviewing court." Ill. Rev. Stat. 1979, ch. 110A, par. 329.

The disputed depositions in the contested supplemental record were all available to plaintiff. All were eventually filed with and certified by the clerk of the circuit court. In addition, the depositions show affirmatively that counsel for plaintiff was present at the taking thereof. In our opinion, these portions of the record are squarely within the permissive intent of Rule 329. We have thus concluded these matters above detailed were all tendered to the trial judge and considered by him in passing upon the motion for summary judgment. For example, volume I of this supplemental record contains the original motion of defendants for summary judgment and a discovery deposition of plaintiff taken by defendants. The record shows that this motion was lodged with the trial court on January 3, 1980. It had previously been served upon counsel for defendant. However, the filing mark of the clerk of the circuit court was not placed thereon until November 25, 1980. As a part of said motion, there is a memorandum containing 36 pages which refers to the materials and depositions in support of the motion for summary judgment.

Plaintiff urges Bezin v. Ginsburg (1978), 59 Ill. App.3d 429, 375 N.E.2d 468, appeal denied (1978), 71 Ill.2d 607, is "controlling" here. We disagree. The "Leadingham" deposition there involved was taken in a different piece of litigation involving other parties. It was never filed in that other case. The court, therefore, pointed out the deposition was "improperly acquired" and "totally improper." (59 Ill. App.3d 429, 435-36.) The depositions in the instant case were all properly taken and signed, were presented to the trial judge in open court, and were considered by him in passing on the motion for summary judgment. The filing of these matters was completed when they were tendered to the trial judge in open court. The application of the filing marks by the clerk of the trial court was a ministerial matter.

• 1 We, therefore, hold the various materials described in the order of the trial judge are properly before this court under the authority of Rule 329 above quoted. Accordingly, defendants are granted leave to file their tendered second supplemental record in two volumes.

We are constrained to add that we agree with the point made by plaintiff that counsel for defendants were guilty of delay in taking the necessary steps to properly present the entire record. However, this delay should not be charged against the defendants.

The merits of the situation before us revolve about a device to be used with the anchoring of artificial teeth. The product is described as a dental hinge post or simply a dental post. The trial judge referred to the alleged trade secret as involving "the post used in the latch and hinge mechanisms of a dental appliance."

In plaintiff's amended complaint he alleged he had developed a secret and confidential design for dental hinge posts upon which to form a removable partial denture. This design was described as "secret and confidential." It is alleged that in the spring of 1970, plaintiff was contacted by an agent of the defendants who expressed interest in the device. At that time an oral agreement was made between plaintiff and persons acting for the defendants whereby plaintiff would disclose to defendants the confidential design and techinque for ...

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