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06/30/97 IDEAL TOOL AND MANUFACTURING COMPANY v.

June 30, 1997

IDEAL TOOL AND MANUFACTURING COMPANY, PLAINTIFF-APPELLEE,
v.
ONE THREE SIX, INC., FORMERLY KNOWN AS SHRED PAX CORPORATION, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. Honorable Kenneth L. Gillis, Judge Presiding.

Rehearing Denied July 25, 1997. Released for Publication August 5, 1997.

The Honorable Justice Rakowski delivered the opinion of the court. DiVITO, P.j., and Tully, J., concur.

The opinion of the court was delivered by: Rakowski

JUSTICE RAKOWSKI delivered the opinion of the court:

Plaintiff, Ideal Tool & Manufacturing Company, filed suit against defendant, Shred Pax Corporation, now known as One Three Six, Inc., for breach of contract. The trial court granted plaintiff's motion for summary judgment pursuant to section 2-1005 of the Code of Civil Procedure (735 ILCS 5/2-1005 (West 1994)) and its motion to suppress depositions and denied defendant's motion to reconsider (735 ILCS 5/2-1203 (West 1994)). Judgment was rendered against defendant in the amount of $397,475. Defendant appeals, contending that the trial court: (1) erred in suppressing depositions; (2) erred in granting plaintiff summary judgment; and (3) erred in awarding plaintiff damages on the full contract price. We reverse and remand.

FACTS

Defendant manufactures and sells industrial shredding equipment. Plaintiff manufactured component parts for defendant. In a typical situation, defendant would request a quotation for specific goods. Plaintiff would issue a quotation, including the quantity, type, specifications, and price. If defendant accepted the quotation, it would issue a purchase order confirming the quantity, type, specifications, and price. Upon receipt of defendant's purchase order, plaintiff would issue an internal job order and commence manufacturing. Between August 2, 1993, and October 27, 1993, defendant issued seven purchase orders to plaintiff for the manufacture and delivery of component parts. Relations broke down between the parties, and, ultimately, since defendant refused to pay, plaintiff filed suit seeking the full contract price for each of the seven purchase orders.

During the hearing on summary judgment, the parties and the court referred to certain deposition testimony. The depositions are those of Al Kaczmarek, defendant's founder and engineer, Carol Nolan, defendant's purchasing manager, and Eric Sund, plaintiff's president. Defendant referred to portions of these depositions in its response to the motion for summary judgment but had not filed them with the court. Plaintiff referred to two of the three depositions in its motion for summary judgment but had not filed the depositions with the court either. Plaintiff additionally relied on the affidavit of its president, Eric Sund, in support of its motion for summary judgment.

In reply to defendant's response to motion for summary judgment, plaintiff raised the issue that the transcripts were not filed with the court. At the summary judgment hearing, plaintiff immediately mentioned to the court that defendant had not filed the transcripts. It then continued to argue the merits of its motion. When defense counsel first addressed the court, he stated: "As an initial starting point, I guess the correct place to start is I do have copies of all of the completed original depositions, the copies with me. If your Honor wishes, we will file them with the court. Signature has either been waived or the depositions have been reviewed by all of the parties." The court did not respond to this offer, nor did plaintiff object. Defendant then argued in opposition to the motion, citing the depositions on numerous occasions. During argument, the court cited to and quoted from one of the depositions. After the trial court granted plaintiff's motion for summary judgment, defendant moved to file the transcripts. Plaintiff objected, arguing this was an attempt to supplement the record. The trial court agreed and denied defendant's request to file the transcripts. The next day, defendant filed the transcripts with the clerk of the court.

Defendant then filed a motion for reconsideration. Plaintiff responded by filing a motion to suppress deposition testimony. Both motions were heard at the same time. At the hearing, plaintiff again stated that defendant failed to file the transcripts. Defendant argued that the court had discretion to allow filing even at this phase of the proceedings. The trial court granted plaintiff's motion to suppress and denied defendant's motion for reconsideration.

ANALYSIS

A. SUPPRESSION OF DEPOSITION TRANSCRIPTS

Section 2-1005 addresses motions for summary judgment and provides:

"The opposite party may prior to or at the time of the hearing on the motion file counteraffidavits. The judgment sought shall be rendered without delay if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled ...


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