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Fischer v. G & S Builders





Appeal from the Circuit Court of La Salle County; the Hon. Thomas R. Flood, Judge, presiding.


Rehearing denied October 16, 1986.

Plaintiffs, Richard and Marissa Fischer, entered into an installment contract to purchase a home located at 703 Seventh Street, Peru, from defendants G & S Builders, a partnership, on May 1, 1981. The purchase price of the home was $50,000. The terms of the contract required plaintiffs to make a down payment of $5,000; monthly payments of $490.66 from June 1, 1981, through April 1, 1984; and a balloon payment of $44,589.56 on May 1, 1984. On April 9, 1984, three weeks before their contract obligations were to have been fully discharged, plaintiffs filed a complaint in the circuit court of La Salle County in 10 counts, complaining of breach of implied warranty of habitability, fraud, and deceptive trade practices on the parts of the seller partnership, its individual partners and the real estate agency that brokered the parties' 1981 transaction.

Defendants G & S Builders and its partners, Gerald Gingerich and William Schmollinger, answered the complaint and counterclaimed for breach-of-contract damages in the amount of $45,030.22, representing the unpaid installment due for April 1984 and the balloon payment. Plaintiffs subsequently amended their complaint to add an 11th count. Defendant real estate agency, Trompeter, Huber and Guttilla, then answered the two counts of the amended complaint directed to it. Ultimately, on September 9, 1985, the matter proceeded to a jury trial.

At the close of plaintiffs' case in chief, all defendants moved for directed verdicts in their favor. After hearing arguments of counsel, the court allowed defendants' motions, entered judgment for all defendants, and discharged the jury accordingly. Plaintiffs filed a post-trial motion and a motion to amend pleadings pursuant to section 2-616(c) of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-616(c)). The motions were denied, and plaintiffs have appealed.

In this appeal, plaintiffs present numerous "issues" which, in essence, boil down to these three questions: (1) whether the trial court abused its discretion in allowing defendants' motion in limine to preclude expert testimony by plaintiffs' witness, J. Emerson Miller, an Illinois plumbing inspector; (2) whether the trial court abused its discretion in denying plaintiffs' post-trial motion to amend their complaint to add counts based on alleged statutory violations; and (3) whether the trial court erred in granting defendants' motions for a directed verdict at the close of plaintiffs' case in chief.

Initially, we will consider the plaintiffs' challenge to the court's ruling on defendants' motion in limine. J. Emerson Miller is a licensed plumbing inspector for the Illinois Department of Public Health. From the evidence of record, it appears that plaintiffs enlisted his services for the purpose of inspecting the plumbing at the real estate in question around August of 1983. Miller did so, and prepared a report of his findings on August 25, 1983. Miller's report describes seven separate violations of the Illinois State plumbing code throughout the house. It appears that at some unspecified later date, but prior to the trial of this cause, Miller conferred with defendant Gingerich about the inspection he had conducted at the Fischers' behest.

Supreme Court Rule 220(b)(1) requires the disclosure of an expert witness at the later of either the first pretrial conference or 90 days after the substance of his expert opinion is known to the party that intends to introduce such witness. (103 Ill.2d R. 220(b)(1).) It appears that the first pretrial conference in this case was held on July 13, 1984. An order of that date was entered by the trial court allowing "discovery * * * to each party as they deem advisable." The record contains an order of the court dated September 28, 1984, resetting the cause for a status hearing on December 5, a final settlement conference on January 25, 1985, with the trial to commence three days later. Other pretrial matters, including defendants' motions to dismiss the complaint, were heard in the interim; and on May 7, 1985, the court entered another order resetting the final settlement conference for September 6, 1985, with the trial to begin on September 9, 1985, when it did in fact commence.

It was not until the last settlement conference on September 6, 1985, that plaintiffs disclosed their intent to introduce Miller's expert testimony at trial. Defendants moved in limine to exclude the expert opinion of Miller for violation of discovery Rule 220(b); and, in oral argument on the motion, defense counsel requested that a continuance of the trial be granted in the alternative. Plaintiffs' counsel resisted a continuance. The trial court granted defendants' motion to exclude Miller's opinion testimony as an expert, but specifically allowed him to be called for the purpose of testifying to what he did and what he observed in response to the plaintiffs' request that he inspect the plumbing at the property in question.

In this appeal, plaintiffs do not deny that their last-minute disclosure of Miller as an expert witness violated Supreme Court Rule 220. They suggest, however, that the rule is "flexible" and that because defendants "knew of Mr. Miller's presence in the controversy," and because they knew of his report before the suit was filed, defendants could not claim surprise or prejudice by plaintiffs' untimely disclosure. Ergo, plaintiffs reason, the court's ruling on the motion in limine was error.

In advancing this argument, plaintiff cite no authority. Indeed, our independent research indicates that there has been little written on the sanction provision of Rule 220 by the Illinois courts of review.

• 1 The rule provides: "Failure to make the disclosure required by this rule or to comply with the discovery contemplated herein will result in disqualification of the expert as a witness." (Emphasis added.) (103 Ill.2d R. 200(b)(1)). Generally, the imposition of sanctions for a party's noncompliance with discovery rules is within the discretion of the trial judge. (See Ferenbach v. DeSyllas (1977), 45 Ill. App.3d 599, 359 N.E.2d 1214 (decided under Supreme Court Rule 219 (87 Ill.2d R. 219) on grounds of failure to make disclosures in answer to interrogatories and in response to motion to produce); Beasley v. Huffman Manufacturing Co. (1981), 97 Ill. App.3d 1, 422 N.E.2d 241 (decided under former section 58(3) of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 58(3), now par. 2-1003(c)), prior to adoption of Supreme Court Rule 220).) In our opinion, the general proposition holds true with respect to sanctions under Rule 220 as well. The trial court may impose the sanction at its discretion, and the court's decision should not be interfered with on review absent a clear showing of abuse.

• 2 The trial court's ruling here resulted in disqualifying the witness (Miller) as an expert, but not as witness to what he had personally observed. Because of plaintiffs' failure to give reasonable notice to defendants that Miller would be called to testify as an expert, there was no opportunity for defendants to depose Miller or to attempt to rebut his opinions with their own experts. That Miller's inspection of the premises was a fact known to one or more of the defendants is not an appropriate substitute for the type of disclosure contemplated by Rule 220(b). Indeed, until September 6, 1985, Miller could just as well have been considered a "consulting expert" for plaintiffs, in which case no disclosure would have been required. (See 103 Ill.2d R. 220(b)(2).) So as not to prejudice defendants, it was only fair for the court, on defendants' motion, to continue the trial to a later date or to restrict Miller's testimony. The court's choice, it appears, was influenced by plaintiffs' resistance to a continuance. Since either option would have been an acceptable response (see Beasley v. Huffman Manufacturing Co. (1981), 97 Ill. App.3d 1, 442 N.E.2d 241), we find no abuse of the court's discretion in restricting Miller's testimony, thereby selecting the option which apparently was perceived by plaintiffs' counsel at the time as less burdensome to the plaintiffs.

• 3 We turn next to plaintiffs' argument that the trial court erred in granting a directed verdict for defendants. The "Pedrick rule" (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill.2d 494, 229 N.E.2d 504) applies in determining whether a verdict should be directed at the close of plaintiffs' case — whether all the evidence, viewed most favorably to the plaintiffs, so overwhelmingly favors defendants that no ...

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