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11/09/89 Gayle A. Freeman Et Al., v. James M. Myers

November 9, 1989

GAYLE A. FREEMAN ET AL., PLAINTIFFS-APPELLEES

v.

JAMES M. MYERS, ADM'R OF THE ESTATE OF MERRITT L. MYERS, DECEASED, DEFENDANT (ROBERT E. GILLESPIE, DEFENDANT-APPELLANT)



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

547 N.E.2d 586, 191 Ill. App. 3d 223, 138 Ill. Dec. 419 1989.IL.1764

Appeal from the Circuit Court of Logan County; the Hon. Gerald G. Dehner, Judge, presiding.

APPELLATE Judges:

JUSTICE KNECHT delivered the opinion of the court. LUND and SPITZ, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE KNECHT

This appeal involves an award of attorney fees to counsel because opposing counsel intentionally violated the trial court's ruling in limine and thereby caused a mistrial. We agree with the trial court's findings, but conclude the award of attorney fees is impermissible and reverse.

Plaintiffs, Gayle Freeman and Daniel Williams, were passengers in an automobile driven by Jeffrey Williams on September 27, 1981. At the intersection of business Route 66 and Nicholson Road in Logan County, Illinois, the Williams vehicle collided with an automobile driven by Merritt L. Myers. Myers and his wife were killed in the accident. Plaintiffs sustained personal injuries. Plaintiffs' separately filed complaints were consolidated for trial.

Prior to trial, plaintiffs filed a motion in limine requesting defendant be prohibited from introducing evidence, arguing or insinuating, in the presence of the jury:

"3. That Jeffrey Williams was participating in a drag race or other speed competition with another automobile.

7. That Jeffrey Williams had installed an aluminum intake manifold on his vehicle earlier on the day of the occurrence.

8. That Jeffrey Williams passed another vehicle approximately one mile from the scene of the occurrence.

9. Any testimony by Robert E. Mulvaney, Michael Leake or anyone else concerning reconstruction of the accident or the speeds of the vehicles therein because there is eyewitness testimony concerning the accident, the computations of Robert E. Mulvaney are not available for examination or cross-examination, Robert E. Mulvaney is not competent to testify on this case, and supporting data is not available."

Over the objection of defendant, the court granted these provisions of plaintiffs' motion in limine.

The trial commenced on January 12, 1987. Defendant Myers was represented at trial by attorney Robert Gillespie. Plaintiff Freeman was represented by attorney David Dorris, and plaintiff Williams was represented by attorney Jay Janssen. Plaintiffs called witnesses Docia Barrick, Michael Leake, Gayle Freeman, Dennis Freeman, Sandra Freeman, Pauline Williams, and Daniel Williams. Defendant called ...


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