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06/23/88 Bertl C. Dietrich, v. Alma V. Jones

June 23, 1988

BERTL C. DIETRICH, PLAINTIFF-APPELLEE

v.

ALMA

v.

JONES, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION

526 N.E.2d 450, 172 Ill. App. 3d 201, 122 Ill. Dec. 191 1988.IL.990

Appeal from the Circuit Court of Cook County; the Hon. Walter B. Bieschke, Judge, presiding.

APPELLATE Judges:

JUSTICE JOHNSON delivered the opinion of the court. JIGANTI, P.J., and LINN, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE JOHNSON

Following a jury trial in the circuit court of Cook County, plaintiff, Bertl C. Dietrich, was awarded compensatory damages in the amount of $75,000 and punitive damages of $1 for fraud and concealment in the sale of a condominium by defendant, Alma V. Jones. On post-trial motions of defendant, the trial court granted a remittitur of $17,470 and denied all other requested relief. Defendant appeals, raising the following issues: (1) whether the trial court erred by denying her motion in limine, which sought to exclude plaintiff's undisclosed expert; (2) whether the verdict rendered is against the manifest weight of the evidence; (3) whether the trial court erred by denying her pretrial motion for jury viewing of the premises; (4) whether the trial court erred in its rulings on certain evidentiary matters; and (5) whether the trial court erred by denying her motion in limine, which sought to limit plaintiff's damages to those relating to the condominium's value.

The record reveals that in July 1979 defendant sought to sell her condominium, unit LL101, located at 1440 Sheridan Road, Wilmette, Illinois, through an advertisement she placed in a weekly publication. Plaintiff responded to the advertisement and arranged to view the unit. During the initial appointment, plaintiff scheduled another viewing so that she could bring her daughter, Tanya, who is an attorney, with her to inspect the building.

During the second viewing, Tanya noticed what appeared to be large water stains on the carpet and asked defendant about them. The witnesses differ on what was said in response to this inquiry. Tanya testified that defendant told her that there had been a problem with the roof which allowed water to come in through the wall and on the floor. She further testified that defendant assured her that the roof had been fixed and that the unit was dry, with no more water-related problems. Defendant testified that she had explained the water-entry problems to plaintiff during the first inspection of the unit. She further stated that she reiterated that conversation to Tanya, explaining that since there had been major repairs done to the building, she felt confident there would be no more water-entry problems. After that Discussion, Tanya, representing plaintiff, made an offer to purchase the unit for the asking price of $150,000. Defendant accepted this offer and the parties entered into an agreement, using a standard form contract, later that same evening. The contract makes no specific reference to water-entry problems.

In late November 1979, the closing for the sale of the condominium unit took place and the plaintiff moved into it a day or two later. Shortly thereafter, plaintiff began to experience water entries. She repeatedly complained to the Wilshore Condominium Association Board (hereinafter Association), which she understood to be responsible for getting the repair work done to remedy the situation. In or about 1983, the Association undertook major repair work to the building which helped to alleviate the water-entry problems. Plaintiff brought this action to recover damages occasioned by the alleged fraud and concealment of defendant in the sale of the condominium on April 29, 1981. The jury found for plaintiff and awarded compensatory damages in the amount of $75,000 and $1 in punitive damages. On post-trial motions of defendant, the trial court granted a remittitur of $17,470 and denied all other requested relief. Defendant appeals.

We affirm.

Defendant contends that the trial court committed reversible error by denying her pretrial motion in limine, which sought to exclude the testimony of plaintiff's expert witness, John H. Fischer, a real estate appraiser. Fischer testified that, in his opinion, the unit purchased by plaintiff, in its actual condition, was worth $95,000, a price $55,000 less than the purchase price. Defendant moved to exclude this testimony alleging that plaintiff failed to identify Mr. Fischer as an expert witness pursuant to Supreme Court Rule 220 (107 Ill. 2d R. 220).

Rule 220, which requires the disclosure of the identities and opinions of expert witnesses whose testimony is "reasonably contemplated," became effective on October 1, 1984. Defendant served plaintiff with supplemental interrogatories requesting Rule 220 disclosures on December 4 of that year. Plaintiff's answer to the supplemental interrogatories, served on defendant September 10, 1985, stated that she had retained no experts whose identities and reports had not been previously disclosed.

The prior disclosure which plaintiff refers to pertains to her answer to the interrogatories defendant served December 10, 1981 (hereinafter referred to as the 1981 interrogatories). These interrogatories, served prior to the enactment of Rule 220, asked whether plaintiff had received an appraisal of the property. Plaintiff responded by attaching Fischer's appraisal report. Defendant argues that, although made aware of Fischer's existence, plaintiff's response did not apprise her of Fischer's opinion or plaintiff's intent to call him as an expert witness. Specifically, defendant contends that this was insufficient to satisfy Rule 220's disclosure requirements. Moreover, she points out that Fischer's name was omitted from the list of potential witnesses plaintiff submitted in response to a question in the 1981 interrogatories which sought identification of all persons having knowledge of facts relevant to the controversy. Defendant claims that this omission misled her into assuming that Fischer was a consulting ...


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