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12/14/88 Charles E. Tokar, v. Crestwood Imports

December 14, 1988




Before proceeding to the specifics of plaintiff's appeal, we affirm the directed verdict for Subaru on count II of the third amended complaint, alleging a breach of Subaru's implied warranty of merchantability under section 2-314 of the Code (Ill. Rev. Stat. 1985, ch. 26, par. 2-314). We base that affirmance on the lack of contractual privity between plaintiff and Subaru. (Rothe v. Maloney Cadillac, Inc. (1988), 119 Ill. 2d 288, 518 N.E.2d 1028; Szajna v. General Motors Corp. (1986), 115 Ill. 2d 294, 503 N.E.2d 760.) While Subaru does not rely upon the lack of privity, we may sustain the trial court's decision on any ground called for by the record, whether or not the trial court made its decision on the proper ground. (Estate of Johnson v. Condell Memorial Hospital (1988), 119 Ill. 2d 496, 502, 520 N.E.2d 37.) Our Discussion of plaintiff's claim against Subaru for breach of implied warranty will thus be limited to the claim brought under the Magnuson-Moss Warranty Act. Rothe, 119 Ill. 2d 188, 518 N.E.2d 1028; Szajna, 115 Ill. 2d 294, 503 N.E.2d 760.


532 N.E.2d 382, 177 Ill. App. 3d 422, 126 Ill. Dec. 697 1988.IL.1787

Appeal from the Circuit Court of Cook County; the Hon. Cyril J. Watson, Judge, presiding.


JUSTICE FREEMAN delivered the opinion of the court. WHITE, P.J., and McNAMARA, J., concur.


On April 15, 1985, plaintiff, Charles E. Tokar, filed suit against defendants, Crestwood Imports, Inc. (Crestwood), and Subaru of America, Inc. (Subaru), for breach of express and implied warranties on a Subaru vehicle under the Magnuson-Moss Warranty Act (15 U.S.C. § 2301 et seq. (1976)) and the Uniform Commercial Code (the Code) (Ill. Rev. Stat. 1985, ch. 26, par. 1-101 et seq.). At the close of plaintiff's case in chief, the trial court granted Subaru's motion for a directed verdict. Thereafter, the jury returned a verdict for Crestwood. Plaintiff appeals the directed verdict for Subaru and the judgment on the verdict for Crestwood.

Plaintiff's third amended complaint, on which this cause went to trial, alleged plaintiff's purchase of a 1982 Subaru GL station wagon from defendants on June 1, 1982. The express warranty from Subaru which accompanied the vehicle covered the repair or replacement of "defects in material or workmanship . . . for a period of twelve (12) months" after its delivery to the first retail purchaser. Subaru limited "[any] implied warranty of merchantability or fitness for a particular purpose applicable to the car" to the 12-month period of the express warranty. Plaintiff alleged that the auto had the following defects which were discovered within the warranty period: defective driver side door; defective gear shaft; defective rear quarter panel; defective cruise control; defective actuator; defective heater fan; oil leaks; grinding during acceleration; engine surge; defective oil pump; and a defective radiator.

Plaintiff filed a motion in limine to bar the testimony of John Byrne as an expert witness for Subaru. Subaru identified Byrne as such on October 14, 1987, just two weeks before the trial began on October 27, 1987. The trial court denied the motion in view of defendants' difficulties in scheduling an inspection of plaintiff's auto and plaintiff's deposition.

Subaru also filed two motions in limine. Paragraph four of the first motion sought to exclude any evidence relating to damages other than the cost of repairing the alleged defects which occurred within the first year of plaintiff's ownership of the auto. Paragraph five of the same motion sought to exclude all references to engine damage or repairs. The second motion sought to exclude all evidence of defects in plaintiff's auto occurring after 12,000 miles on the ground that Subaru's warranties were limited to that mileage. *fn1 The trial court granted paragraph four of Subaru's first motion in limine and granted the second motion. The court reserved ruling on paragraph five of Subaru's first motion until the next day. This ruling was based on the fact that Byrne was to inspect plaintiff's auto on the evening of the first day of trial. The record does not reflect that the court ever ruled on paragraph five of Subaru's first motion.

On appeal, plaintiff first contends the trial court should have barred the testimony of John Byrne, whom Subaru identified as its expert witness. Plaintiff raises the following grounds for such an order: (1) Subaru did not disclose Byrne's identity as an expert witness until two weeks before trial, in violation of Supreme Court Rule 220 (107 Ill. 2d R. 220; McDonald's Corp. v. Butler Co. (1987), 158 Ill. App. 3d 902, 910-12, 511 N.E.2d 912); (2) Byrne's testimony affected the trial result; and (3) Byrne lacked the requisite expertise to testify. First National Bank v. Sousanes (1981), 96 Ill. App. 3d 1047, 1054, 422 N.E.2d 188; Community Consolidated School District v. Meneley Construction (1980), 86 Ill. App. 3d 1101, 1104, 409 N.E.2d 66.

We find that plaintiff has waived any error in Byrne's testimony by calling him as a witness in his case in chief rather than waiting for Subaru or Crestwood to call Byrne in their cases and then objecting at that time to the admission of his testimony. See Romanek-Golub & Co. v. Anvan Hotel Corp. (1988), 168 Ill. App. 3d 1031, 1039-40, 522 N.E.2d 1341.

Plaintiff called Byrne as an adverse witness under section 2-1102 of the Civil Practice Law (Ill. Rev. Stat. 1987, ch. 110, par. 2-1102). Under section 2-1102, any party to an action, any person for whose immediate benefit an action is prosecuted or defended, or the officers, directors, managing agents, or a foreman of any party may be called and cross-examined by any adverse party. Moreover, the party calling the witness may rebut the testimony by countertestimony and may impeach the witness with prior inconsistent statements. Section 2-1102 does not allow a party to call an opponent's expert witness as an adverse witness in his case in chief unless the witness also occupies one of the roles specifically mentioned. The trial court recognized this when, after having allowed plaintiff to call Byrne as an adverse witness, it sustained Subaru's objection to a line of questioning by plaintiff on the grounds that Bryne was not one of the individuals listed in section 2-1102.

As plaintiff improperly called Byrne as an adverse witness under section 2 -- 1102, he, a fortiori, must have called Byrne as his own witness. In so doing, plaintiff foreclosed his right to complain that Byrne could not testify for defendants. A party cannot complain of evidence which he himself has introduced or brought out. (Romanek-Golub & Co., 168 Ill. App. 3d at 1040.) Once plaintiff elicited testimony from Byrne as an expert in the field of automotive mechanics, Crestwood, the only defendant remaining after plaintiff's case in chief, was entitled to elicit expert testimony from Byrne in its own case in chief. (Cf. Romanek-Golub & Co., 168 Ill. App. 3d at 1039-40 (once defendants elicited direct testimony regarding a letter agreement, evidence of which they had sought to bar by motion in limine, plaintiffs were entitled to refer to the agreement in rebuttal).) Thus, the grounds asserted by plaintiff as justifying the exclusion of Byrne's testimony are unavailing.

Plaintiff also contends that the trial court erred in limiting his attempt to discredit Byrne because defendants did not object when plaintiff first called Byrne as an adverse witness. Plaintiff also asserts that defendants waived any right to object by violating Rule 220, citing McDonald's and First National Bank v. Sousanes (1981), 96 Ill. App. 3d 1047, 1054, 422 N.E.2d 188. As plaintiff cites no authority for his contention that defendants waived their right to object to his attempt to discredit Byrne by not objecting when he first called him as an adverse witness, we must reject that argument as waived on appeal. (107 Ill. 2d R. 341(e)(7); Pauly v. Werries (1984), 122 Ill. App. 3d 263, 265, 461 N.E.2d 54.) Moreover, McDonald's and Sousanes do not support the contention that defendants' violation of Rule 220 precluded them from objecting to plaintiff's examination of Byrne as an adverse witness.

We cannot otherwise agree with plaintiff that the trial court improperly limited his attempt to discredit Byrne. At the point in plaintiff's examination of Byrne at which Subaru objected, plaintiff was inquiring of Byrne as to whether he had inspected four 1,800-cc. overhead valve engines used in 1982 Subaru vehicles, including plaintiff's auto. Subaru's objection to this line of questioning on relevance grounds ultimately resulted in the trial court's belated realization that Byrne was not a proper section 2 -- 1102 witness. Based on that realization, the trial court curtailed plaintiff's cross-examination of Byrne with regard to his expertise until such time as defendants offered him as an expert witness. This ruling was not erroneous.

The colloquy between the court and Subaru's counsel at the hearing on the motions in limine reveals Subaru's concern that the engine of plaintiff's auto was no longer available for inspection, the auto having been involved in an accident in July 1987. Based on this concern, the trial court reserved a ruling, until after Byrne inspected the auto, on Subaru's motion to bar evidence of engine defects in the auto. Byrne's inspection was scheduled for the evening of the first day of trial. Thus, the trial court did not abuse its discretion in limiting plaintiff's attempt to discredit Byrne in view of: (1) the possibility that the trial court would bar evidence of defects in the engine of plaintiff's auto if it was not available for inspection by defendants; and (2) the trial court's ruling that it would allow plaintiff to cross-examine Byrne regarding his expertise in Subaru engines if defendants offered him as an expert witness on that subject.

Plaintiff next contends the trial court should have excluded or suppressed photographs of the sunroof of his auto installed by Crestwood which Byrne took during his inspection of the vehicle. Plaintiff raises several grounds ...

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