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12/27/95 SCOTT HEFNER v. OWENS-CORNING FIBERGLAS

December 27, 1995

SCOTT HEFNER, SPECIAL ADMINISTRATOR OF THE ESTATE OF CLARENCE HEFNER, DECEASED, PLAINTIFF-APPELLEE,
v.
OWENS-CORNING FIBERGLAS CORP., DEFENDANT-APPELLANT, AND M. H. DETRICK, INC., DEFENDANT.



Appeal from the Circuit Court of Madison County. No. 94-L-957. Honorable Nicholas G. Byron, Judge, presiding.

Petition for Leave to Appeal Denied April 3, 1996.

The Honorable Justice Kuehn *fn1 delivered the opinion of the court: Welch and Hopkins, JJ., concur.

The opinion of the court was delivered by: Kuehn

contd

[EDITOR'S NOTE: The page numbers of this document may appear to be out of sequence; however, this pagination accurately reflects the pagination of the original published documents.]

ORDER

This cause has been considered on appellee's motion for leave to file additional supporting record, appellant's objections to said motion and motion to strike portions of appellee's brief referring to the additional supporting record, appellee's motion for leave to reply to appellant's objections to his motion, M.H. Detrick Company's motion to lift stay order as applied to M.H. Detrick and mandate entry of judgment on the verdict instanter, appellant's response to M.H. Detrick's motion, M.H. Detrick's motion for leave to file a reply to appellant's objections, appellee's motion to supplement the record on appeal with Clarence Hefner's complete discovery deposition, and appellant's objections to said motion. The court having examined the record on appeal, considering the matter on rehearing, and being fully advised in the premises finds as follows:

That on September 13, 1995, the court filed its Rule 23 Order (Official Reports Advance Sheet No. 15 (July 20, 1994), R. 23, effective July 1, 1994);

That on October 5, 1995, appellant filed its petition for rehearing; and

That on October 19, 1995, the court granted appellant's petition for rehearing.

The court now desires to vacate its previous decision and substitute a new decision.

Motions filed by both parties, some of which were previously decided within the Rule 23 Order, are now considered in this order.

On April 11, 1995, appellee filed a motion seeking leave to file additional supporting record.

On April 21, 1995, appellant filed a motion to strike portions of appellee's brief referring to the additional supporting record.

On April 24, 1995, appellee filed a motion seeking leave to reply to appellant's objections to his motion seeking leave to file additional supporting record.

On April 27, 1995, this court entered an order that these three motions were to be taken with the case.

An appellate court's review on a motion is limited to matters considered by the trial court in ruling on the motion. ( Wieser v. Missouri Pacific R.R. Co. (1983), 98 Ill. 2d 359, 363-64, 456 N.E.2d 98, 100, 74 Ill. Dec. 596; Logan v. Old Enterprise Farms, Ltd. (1990), 139 Ill. 2d 229, 237, 564 N.E.2d 778, 782, 151 Ill. Dec. 323.) We are constrained to consider only the evidence before the court when it ruled upon appellant's motion for reconsideration of its motion for transfer.

On November 13, 1995, appellee filed a motion to supplement the record on appeal with the complete discovery deposition of Clarence Hefner. Appellant included excerpts of this discovery deposition in its supporting record. Appellant objects to appellee's motion to supplement the record on appeal with the balance of Clarence Hefner's discovery deposition on the basis that supplementation is improper because the deposition was never filed in circuit court.

As previously stated, the record on interlocutory appeal is confined to matters presented to and considered by the trial court. ( Logan, 139 Ill. 2d at 237, 564 N.E.2d at 782; Wieser, 98 Ill. 2d at 363-64, 456 N.E.2d at 100.) Clarence Hefner's discovery deposition, while taken before the trial court ruled upon appellant's motion for reconsideration, bears no Madison County Circuit Court Clerk's Office file stamp.

IT IS THEREFORE ORDERED that appellee's motion for leave to reply is granted, appellee's motion to supplement the record is denied, and appellant's motion to strike those portions of appellee's brief ...


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