Appeal from the Circuit Court of Cook County, Second District. Honorable Jerome Orbach, Judge Presiding.
Released for Publication April 24, 1997.
The Honorable Justice South delivered the opinion of the court. Hartman, P.j., and Hourihane, J., concur.
The opinion of the court was delivered by: South
JUSTICE SOUTH delivered the opinion of the court:
Plaintiffs, Thomas A. Ruane and Kathleen P. Ruane, filed a four-count second amended complaint against defendants, Denise Amore, Annette S. Smith, Susan E. Price (sellers), Baird & Warner, Inc. (Baird & Warner), Richard G. Larsen and Curtis Edlund (Larsen & Edlund), alleging fraudulent misrepresentation. Plaintiffs appeal the denial of their motions to reopen discovery and to disclose an expert witness, and the granting of defendants' motions for summary judgment.
On March 28, 1990, David A. Mohar (Mohar), entered into a real estate sales contract for the purchase of the residence from the sellers. The listing broker for this transaction was Baird & Warner. Attorneys, Larsen and Edlund represented the sellers in the Mohar transaction.
In a letter dated June 12, 1990, to Larsen & Edlund from Mohar's attorney, Mohar claimed that a latent defect existed in the southwestern rear portion of the foundation at the residence and declined to complete the purchase. Larsen & Edlund filed a complaint against Mohar and Baird & Warner on behalf of the sellers for forfeiture of $14,200 earnest money deposited by Mohar with Baird & Warner.
The sellers ordered an inspection of the south basement wall and obtained a report dated July 16, 1990, from consulting structural engineers, Rittweger & Tokay, Inc. The report concluded that "the south wall of the building is structurally sound." Thereafter, the residence was placed back on the market for sale.
On or about October 1, 1990, plaintiffs examined the residence as prospective purchasers and noticed that there were two different colors of brick on the outside of the residence. In response to their questions regarding the brick, plaintiffs were given a copy of the Rittweger & Tokay, Inc. report by Baird & Warner. After receiving the report and having their questions regarding the brick answered to their satisfaction, plaintiffs took no further action to investigate the condition of the south basement wall. Plaintiffs were not informed of the Mohar letter of June 12, 1990, or the pending Mohar litigation.
On November 7, 1990, Mohar filed his answer to the complaint filed by the sellers for forfeiture of the $14,200 earnest money. Mohar's answer included two affirmative defenses. The first affirmative defense alleged a mutual mistake of fact regarding the existence of an alleged latent defect in the southwestern rear portion of the residence. The second affirmative defense alleged fraud and misrepresentation with respect to statements made by the sellers, i.e., that the foundation cracking in the southwestern rear portion of the residence had been completely remedied and appropriately repaired.
On November 13, 1990, the closing took place transferring the title to and possession of the residence from sellers to plaintiffs. At the closing, the sellers submitted an affidavit of title to plaintiffs that was notarized by Larsen & Edlund.
On November 19, 1991, the circuit court entered an order in the Mohar action. The circuit court denied Mohar's second affirmative defense alleging fraud and misrepresentation. The circuit court granted Mohar's first affirmative defense alleging a mutual mistake of fact and entered judgment in favor of Mohar and against the sellers.
Plaintiffs learned of the Mohar litigation when Thomas Ruane was called as a witness in that lawsuit. Thereafter, plaintiffs instituted this action.
Through the course of discovery, plaintiffs were served with interrogatories requesting disclosure of expert witnesses pursuant to Supreme Court Rule 220 (134 Ill. 2d. R. 220 (Repealed eff. January 1, 1996)). Plaintiffs responded by stating that they had not retained an expert to testify on their behalf.
On September 22, 1994, the circuit court entered an order providing that discovery would cut off on December 15, 1994, that a pretrial was set for December 22, 1994, and that the case was set for trial on January 25, 1995.
During the pretrial, after discovery closed, plaintiffs motioned to reopen discovery and to disclose an expert witness. The circuit court denied plaintiffs' motions. Defendants filed summary judgment motions to dismiss plaintiffs' second amended complaint under section 2-1005(b) of the Code of Civil Procedure (735 ILCS 5/2-1005 (West 1994)). Following a hearing on the motions, the circuit court of Cook County granted defendants' motions for summary judgment and dismissed plaintiffs' second amended complaint. Plaintiffs appeal the ...