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08/01/89 Harry Jones, Indiv. and As v. Petrolane-Cirgas

August 1, 1989

HARRY JONES, INDI

v.

AND AS EX'R OF THE ESTATE OF CLARA JONES, DECEASED, PLAINTIFF-APPELLANT,

v.

PETROLANE-CIRGAS, INC., DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

542 N.E.2d 1186, 186 Ill. App. 3d 1030, 134 Ill. Dec. 679 1989.IL.1184

Appeal from the Circuit Court of Marion County; the Hon. William R. Todd, Judge, presiding.

APPELLATE Judges:

JUSTICE GOLDENHERSH delivered the opinion of the court. RARICK and CHAPMAN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE GOLDENHERSH

Plaintiff, Harry Jones, who brought this action individually and as executor of the estate of his deceased wife, Clara Jones, appeals from an order of the circuit court of Marion County entering summary judgment against plaintiff and for defendant, Petrolane-Cirgas, Inc. In this cause, plaintiff raises the following issues: (1) whether the trial court erred in granting summary judgment on a remand for a new trial; (2) whether the trial court properly struck plaintiff's amended answers to defendant's Rule 220 (107 Ill. 2d R. 220) interrogatories; and (3) whether the trial court committed reversible error when it denied plaintiff's motion to reconsider. We reverse and remand for a new trial.

This case was previously tried before a jury with judgment in favor of plaintiff and against defendant in the sum of $274,550.68 entered on the jury's verdict by the circuit court. Defendant appealed that judgment and this court in Jones v. Petrolane-Cirgas, Inc. (1986), 146 Ill. App. 3d 153, 496 N.E.2d 509 (hereinafter Jones I), reversed and remanded for a new trial. The facts of the occurrence giving rise to plaintiff's cause of action are set out in Jones I and need not be repeated here. Following the remand, the clerk sent notice to the parties that trial was set for April 13, 1987. Defendant filed interrogatories pursuant to Supreme Court Rule 220 (107 Ill. 2d R. 220) on December 12, 1986. These interrogatories were served on plaintiff's counsel on December 10, 1986. On February 2, 1987, defendant requested compliance with this request pursuant to Supreme Court Rule 201(k) (107 Ill. 2d R. 201(k)). In response, plaintiff disclosed the name of his expert, H. Douglas Brown, but gave no further information regarding this expert. On February 17, 1987, plaintiff propounded his Rule 220 interrogatories.

On March 3, 1987, defendant moved to continue the trial date or, in the alternative, to disqualify plaintiff's expert as a witness based upon plaintiff's failure to comply with the Rule 220 discovery request. On March 25, 1987, plaintiff tendered a copy of his answers to interrogatories without a copy of his expert's report to defendant's attorney. Also on March 25, 1987, the trial court ordered, inter alia, that the trial was reset for August 3, 1987, and that defendant depose plaintiff's expert within 60 days. Brown's deposition took place on May 19 and 20, 1987. Following Brown's deposition, defendant moved for summary judgment. This motion was argued on July 2, 1987, and the trial court granted defendant's motion entering summary judgment against plaintiff, finding that plaintiff's expert, Brown, did not have a basis for an opinion as to causation that would present any more evidence as to defendant's liability than was presented at the first trial.

On August 3, 1987, plaintiff filed a motion to reconsider. On August 31, 1987, without leave of the court, plaintiff filed amended answers to defendant's Rule 220 interrogatories, identifying David Smith as an expert witness. On September 23, 1987, defendant filed a motion to strike plaintiff's amended answers to defendant's interrogatories and affidavit of David Smith. Oral argument was heard on both motions on September 25, 1987. The trial court granted defendant's motion to strike plaintiff's amended interrogatories based on untimely filing and further denied plaintiff's motion to reconsider.

Plaintiff's first issue on appeal is whether the trial court committed error in entering summary judgment in favor of defendant on remand for a new trial in light of Jones I. Plaintiff argues, first, that because this court previously held that the evidence adduced by plaintiff in his first trial was sufficient to avoid summary judgment, directed verdict, and judgment notwithstanding the verdict, and because this court directed the trial court to conduct a "new trial" on remand, it was error for the trial court not to follow the directions of this court. Plaintiff argues that the trial court did not follow the law of the case as prescribed in Jones I.

In Jones I, we found the verdict to be against the manifest weight of the evidence as to proximate cause of the explosion. We could not say, however, "that no verdict in plaintiff's favor on either count could ever stand." (Jones (1986), 146 Ill. App. 3d at 163, 496 N.E.2d at 515.) On remand, we were anticipating that plaintiff would introduce further evidence, if any, as to proximate cause.

Questions of law decided in a previous appeal are binding on the trial court. (Zokoych v. Spalding (1980), 84 Ill. App. 3d 661, 667, 405 N.E.2d 1220, 1225.) However, the rule that a trial court is bound by the law of the case, as found by a court on appeal, is not applicable to "issues of fact, and matters concerning the merits of the controversy between the parties which were presented to but not decided on by the appellate court." (Callier v. Callier (1986), 142 Ill. App. 3d 407, 414, 491 N.E.2d 505, 510.) The only issue we decided in the prior case was that the evidence presented to the trial court was insufficient to support the jury's verdict finding defendant liable for the propane explosion. We then remanded for a "new trial." Plaintiff argued in his brief that the trial Judge had an undisguised rebellion against our findings in Jones I and refused to abide by our decision. We find, however, after a review of statements by the trial court, that even though the trial court did not agree with us, the trial court did in fact follow the guidelines previously set out in Jones I.

There is no statutory or common law rule which would force a matter to full trial upon remand. We find that when a new trial is ordered, that includes all phases of a trial including all pretrial matters. If the trial court determines that no issue of material fact exists, then it may dispose of the case through a summary judgment. (Lopez v. Winchell's Donut House (1984), 126 Ill. App. 3d 46, 466 N.E.2d 1309.) A defendant may at any time move for a summary judgment in his favor for all or any part of relief sought against him. Ill. Rev. Stat. 1985, ch. 110, par. 2-1005(b).

In the instant case, the trial court found that no additional evidence had been introduced, and therefore, a verdict in favor of plaintiff would still be against the manifest weight of the evidence. We find that the trial court had the power to grant a summary judgment. However, because summary judgment is a drastic method of disposing of litigation, it should only be granted when the right of the movant is clear and free from doubt. (Lopez v. Winchell's Donut House (1984), 126 Ill. App. 3d at 49, 466 N.E.2d at 1311.) We now must decide whether, as ...


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