The opinion of the court was delivered by: Heiple
JUSTICE HEIPLE delivered the opinion of the court:
Resolution of this case requires this court to determine (1) whether trial courts have discretion in fashioning a sanction for a technical violation of Rule 220, and (2) whether defendants can be considered prevailing parties under the Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1991, ch. 121 1/2, par. 261 et seq.) and thereby receive attorney fees.
As the full details of this case are thoroughly set forth in the opinion below (240 Ill. App. 3d 266), we review only those facts necessary for the resolution of this appeal.
Dr. Manutchehr Sohaey and Dr. Mehdi Behinfar, in searching for a broker in income-producing properties, became acquainted with Frank Kotnaur, a real estate broker with the Coldwell Banker Commercial Group, Inc. After a failed bid on one shopping mall, Kotnaur proposed another shopping center, Market Square, to plaintiffs.
Having initially arranged for the plaintiffs to tour Market Square in late April 1986, Kotnaur subsequently provided plaintiffs with pro formas prepared by Coldwell Banker. The pro formas consisted of two pages and set forth: (1) information as to the status of the mortgage plaintiffs would assume; (2) a list of Market Square tenants and annual rent projections; (3) an estimate of expenses; (4) a pro rata breakdown by tenant of rental income; and (5) an income summary for each of the years 1986 through 1995. In essence the information tended to indicate that Market Square should produce sufficient income to meet expenses in each year, with the surplus cash flow increasing each year.
After the negotiations which ensued, the real estate closing proceeded on August 5, 1986. The property, however, never lived up to the plaintiffs' expectations.
On March 17, 1987, plaintiffs brought an action in Du Page County circuit court to recover for economic damages incurred as a result of their purchase of the shopping center. Essentially, plaintiffs claimed that several of their agents acted alone and in concert to cause them to suffer these economic losses.
Of relevance to the instant appeal, plaintiffs claimed that they were damaged by the conduct of Kotnaur and his employer, Coldwell Banker. Plaintiffs alleged that they believed Kotnaur was acting as their real estate broker in the Market Square sale. Plaintiff claimed Kotnaur and Coldwell Banker negligently failed to conform to the standard of care required of real estate brokers and therefore breached their fiduciary duties to plaintiffs. Plaintiffs also charged Coldwell Banker with breach of contract, and Kotnaur and Coldwell Banker with intentional tort sounding in civil conspiracy, and violation of the Consumer Fraud Act.
The trial court established a cutoff date of January 14, 1991, for disclosure of expert witnesses. In 1990, plaintiffs timely named Richard Guerard as an expert witness with respect to the standard of care for real estate brokers. Defendants deposed Guerard on October 15, 1990.
Defendants then filed a motion to bar the testimony of Guerard. On January 4, 1991, Judge Ronald B. Mehling found that Guerard was competent to testify and denied the defendants' motion.
On May 2, 1991, however, four days prior to the then-scheduled May 6, 1991, trial date, Judge Mehling's successor, Judge Edward R. Duncan, granted defendants' motion in limine, barring Guerard's testimony. Judge Duncan noted that Guerard's answers to discovery interrogatories were based on his interpretations of case law and statutes, and thus, his testimony could convey an incorrect statement of the law to the jury with respect to the issue of standard of care.
Thereafter, plaintiffs located and disclosed Harold Carlson as a substitute expert on July 3, 1991. At that time, the trial date ...