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Harris Trust & Savings Bank v. Otis Elevator Co.

May 22, 1998

HARRIS TRUST & SAVINGS BANK, GUARDIAN OF THE ESTATE OF MICHAEL CLARK, AND MARY CLARK AND DEBBIE DUNN, ON BEHALF OF MICHAEL CLARK, A DISABLED PERSON, AS CO-GUARDIANS OF THE PERSON OF MICHAEL CLARK, A DISABLED PERSON, PLAINTIFFS-APPELLANTS AND CROSS-APPELLEES,
v.
OTIS ELEVATOR COMPANY, A FOREIGN CORPORATION, DEFENDANT-APPELLEE AND CROSS-APPELLANT.



The opinion of the court was delivered by: Presiding Justice Hoffman

The plaintiffs, Harris Trust & Savings Bank, as guardian of the estate of Michael Clark, a disabled person, and Mary Clark and Debbie Dunn, as co-guardians of the person of Michael Clark, appeal from a directed verdict entered in favor of the defendant, Otis Elevator Company (Otis). The plaintiffs maintained this negligence action on behalf of Clark to recover damages for injuries he sustained in an elevator serviced by Otis. The plaintiffs also appeal from the trial court's denial of their petition for sanctions against Otis and its attorneys for violation of Supreme Court Rule 137 (134 Ill. 2d R. 137). Otis has cross-appealed from the trial court's denial of its petition for sanctions against the plaintiffs and their attorneys for violation of Supreme Court Rules 137 and 219 (134 Ill. 2d R. 137, 219).

An understanding of the issues presented by this appeal requires that we first recount the procedural history of the case. This action was commenced by Michael Clark on February 19, 1987, with the filing of his complaint against Otis, D.S. Associates, and others, seeking recovery for injuries he sustained on December 4, 1986. On January 7, 1993, Clark was declared a disabled person, and Mary Clark and Debbie Dunn were appointed co-guardians of his estate and person. Thereafter, the co-guardians were substituted as the plaintiffs in this action and filed an amended complaint on Clark's behalf. As a consequence of Clark having been adjudicated a disabled person, the co-guardians filed a motion asserting the applicability of the Dead Man's Act (735 ILCS 5/8- 201 (West 1992)). When that motion was heard, the parties argued the issue of whether Clark was competent to testify at trial. Relying solely upon transcripts of the testimony given at Clark's adjudication hearing and the affidavits and reports filed in that proceeding, the court ruled that Clark was incompetent to testify. Thereafter, the case was tried before a jury resulting in a verdict in Clark's favor. The jury awarded Clark $978,600 in damages after deducting 16% for his contributory fault. In response to Otis's post-trial motion, the trial Judge: granted a remittitur of $16,278, reducing the verdict to $962,322; applied a $500,000 set-off resulting from Clark's settlement with D.S. Associates; and entered a net judgment in favor of Clark and against Otis in the sum of $462,322. Otis appealed. "Because the trial judge failed to independently consider whether the plaintiff [Clark] was competent to testify," we reversed the judgment entered against Otis and remanded the case "for a new trial." Clark v. Otis Elevator Co. (hereinafter "Clark I"), 274 Ill. App. 3d 253, 258, 653 N.E.2d 771 (1995). The co-guardians filed a petition for rehearing, asserting, among other things, that this court should have addressed the other points raised by Otis on appeal because, if the verdict could be otherwise sustained and if, upon remand, Clark was again found to be incompetent to testify, there would be no need for a new trial. We denied the petition for rehearing on August 15, 1995. Thereafter, the co-guardians filed a petition for leave to appeal to the Supreme Court which was denied on December 6, 1995 (164 Ill. 2d 559, 660 N.E.2d 1266).

On remand, the plaintiffs filed a sixth amended complaint on Clark's behalf against Otis, and contemporaneously moved the court to declare Clark incompetent to testify at trial. The court conducted a hearing to determine Clark's competency and determined that he was incompetent to testify. The plaintiffs thereupon moved the court to reinstate the prior jury verdict. The trial Judge denied the motion, and the retrial of the cause commenced before a jury. At the close of the plaintiffs' case, the trial Judge directed a verdict in favor of Otis. Following the entry of the directed verdict, Otis moved for sanctions against the plaintiffs and their attorneys for violation of Supreme Court Rules 137 and 219, and the plaintiffs moved for sanctions against Otis and its attorneys alleging violations of Supreme Court Rule 137. The court denied both motions, and this appeal followed.

We will first address the plaintiffs' argument that the trial court erred in denying their motion to reinstate the original judgment entered in favor of Clark when, on remand, Clark was again found incompetent to testify.

When a judgment of the circuit court is reversed and the cause is remanded by this court with specific directions as to the action to be taken, it is the duty of the trial court to follow those directions. People v. National Builders Bank, 12 Ill. 2d 473, 476-77, 147 N.E.2d 42 (1957). Generally, the correctness of a trial court's action on remand is to be determined from our mandate, as opposed to our opinion. PSL Realty Co. v. Granite Investment Co., 86 Ill. 2d 291, 308, 427 N.E.2d 563 (1981). This proposition, however, is based upon the assumption that the direction contained in our mandate is precise and unambiguous. Muhlke v. Muhlke, 285 Ill. 325, 330, 120 N.E. 770 (1918). The mandate which issued after our opinion in Clark I merely states that the cause was "Reversed and Remanded." Such language is imprecise and ambiguous in its direction to the trial court, a failing for which we must ultimately accept responsibility. The trial court, faced with the general wording of our mandate, had no choice but to examine our in Clark I to determine the purpose of the remand order. A reading of that opinion reveals that our judgment was clear and unambiguous; we reversed the previous judgment in favor of Clark and remanded the matter "for a new trial." Clark I, 274 Ill. App. 3d at 258. Based upon the direction contained in our opinion in Clark I, the trial court had little choice but to deny the plaintiffs' motion to reinstate the original judgment in this case. To the extent that the plaintiffs' arguments on this issue could be construed as a request that we review and reconsider that portion of our opinion in Clark I which ordered a new trial, we decline the invitation.

A party seeking review of a decision of this court has two avenues for relief. The party may file a petition with this court seeking a rehearing and may petition for leave to appeal to the supreme court. Foster v. Kanuri, 288 Ill. App. 3d 796, 799, 681 N.E.2d 111 (1997). When, as in this case, a party exercises both such options and both petitions are denied, our decision becomes the law of the case, and binds the parties and the trial court in any subsequent proceeding on remand. PSL Realty, 86 Ill. 2d at 312; Hamilton v. Williams, 237 Ill. App. 3d 765, 774, 604 N.E.2d 470 (1992). The doctrine of the law of the case also provides that a reviewing court, once having decided an issue, will generally refuse to revisit the matter in any subsequent appeal in the same case. This rule of practice is not a limitation on our power to revisit an issue in circumstances where facts have changed or where we determine that our initial decision was clearly erroneous and would work a manifest inJustice. People v. Patterson, 154 Ill. 2d 414, 468- 69, 610 N.E.2d 16 (1992); Anest v. Bailey, 265 Ill. App. 3d 58, 65, 637 N.E.2d 1209 (1994).

In this case, the plaintiffs argue that no useful purpose was served by conducting a retrial when, on remand, Clark was again adJudged incompetent to testify and the plaintiffs stood ready to establish that he was also incompetent at the time of the first trial. Yet, the plaintiffs fail to point out why our prior decision ordering a new trial was clearly erroneous under the circumstances of this case.

In Clark I, we fashioned an appropriate remedy for the trial court's failure to conduct a proper competency hearing prior to ruling that Clark was incompetent to testify at a trial which took place in March 1993. See People v. Cox, 87 Ill. App. 2d 243, 230 N.E.2d 900 (1967). On remand, the plaintiffs filed a motion seeking an order declaring Clark "incompetent for purposes of his testimony in the case herein." The motion was heard on May 2, 1996. The plaintiffs presented Clark as their sole a witness, and he was examined by counsel for the plaintiffs, counsel for Otis, and the court. The plaintiffs' counsel also tendered reports from a Dr. Markos and a Dr. Lahmeyer and asked the court to "consider those reports in conjunction with the examination of the witness in respect to the question of the witness' competence." Counsel for Otis objected to the court's consideration of Dr. Lahmeyer's report, claiming both that the report was hearsay and that Dr. Lahmeyer's opinions had not been previously disclosed in violation of Supreme Court Rule 213 (166 Ill. 2d R. 213). The trial court found that Dr. Lahmeyer's report was not necessary to a determination of Clark's competency. Relying upon the reports of Dr. Marcos and the guardian ad litem submitted in Clark's 1993 adjudication proceeding, as well as the court's own observation of Clark and his responses to the questions posed during his examination, the court found Clark incompetent to testify. After the court made its ruling, counsel for the plaintiffs made an oral motion seeking a reinstatement of the original verdict against Otis and informed the court that, if permitted, he could produce Drs. Markos and Lahmeyer to testify that Clark was also incompetent to testify at the original trial in March 1993.

The competency of a witness is fixed as of the date of the witness' testimony. Knab v. Alden's Irving Park, Inc., 49 Ill. App. 2d 371, 199 N.E.2d 815 (1964). The question of whether a witness is competent to testify is a matter to be determined by the court through preliminary inquiry or by observing the witness' demeanor during trial. People v. Williams, 147 Ill. 2d 173, 212, 588 N.E.2d 983 (1991). A court may consider the opinions of psychiatric experts in determining the competency of a witness; but if, after conducting a preliminary inquiry or observing the demeanor of the witness while testifying, the court is of the opinion that the witness is competent, then the court is not bound by expert opinions to the contrary. See People v. Spencer, 119 Ill. App. 3d 971, 457 N.E.2d 473 (1983).

When we decided Clark I, there was nothing in the record to reflect that Clark was so brain damaged that he was incapable of communicating or responding to inquiry. We issued our opinion in Clark I and remanded the case for a new trial in April 1995, some two years after the original trial. We know from the record before us in this appeal that Clark was able to communicate and respond to questions at his May 1996 competency hearing on remand. Other than by relying solely upon the opinions of experts, we are at a loss to determine how the trial judge on remand could ever determine whether Clark was or was not competent to testify some three years earlier, as no preliminary inquiry was ever conducted prior to his being declared incompetent to testify at the original trial in March 1993. No doubt we could have ordered a retrospective competency hearing in Clark I (see People v. Makiel, 263 Ill. App. 3d 54, 635 N.E.2d 941 (1994)), but there are "inherent difficulties" in attempting retrospective determinations of mental competency even "under the most favorable circumstances" (Drope v. Missouri, 420 U.S. 162, 183, 43 L. Ed. 2d 103, 119-20, 95 S. Ct. 896, 909 (1975)), particularly when the delay in conducting the hearing would exceed one year (see People v. Neal, 179 Ill. 2d 541, 553, 689 N.E.2d 1040 (1997)). Under the circumstances of this case, we find nothing clearly erroneous in our having ordered a new trial in Clark I (see Cox, 87 Ill. App. 2d 243), and we will, therefore, not revisit the issue. For these reasons, we find no error in the trial court's refusal to reinstate the verdict rendered in favor of Clark at the original trial.

We next address the plaintiffs' argument that the trial court erred in directing a verdict in favor of Otis.

The plaintiffs' claim against Otis was grounded in allegations of negligence and also invoked the doctrine of res ipsa loquitur. The plaintiffs' attorney, however, represented to the court during the trial of the cause that the case against Otis was predicated upon the assertion that a safety device on the elevator known as a gate switch had been removed by an Otis employee prior to Clark's accident.

In their case in chief, the plaintiffs presented evidence that Clark was injured on December 4, 1986, when his left leg was crushed while he was riding in an elevator located in the building at 808 W. 76th Street in Chicago (the building). Maurice Alexander testified that he and Lee Dunn were visiting a friend who resided on the fourth floor of the building when they were summoned to the elevator. When he got to the elevator, Alexander saw that the outer door of the elevator was open and the interior scissors gate was partially open. He observed Clark sitting on the floor of the elevator with his leg caught in the space between the floor of the elevator car and the building's fourth floor landing. The floor of the elevator car was not level with the landing. Dunn pushed the elevator button and the elevator went down. As the elevator descended, Alexander was holding the outer door open and he could see that the interior scissors gate was partially open. According to Alexander, the elevator came back up to the fourth floor on its own, and when it did, Clark's leg was back in the elevator car. Dunn placed a tourniquet on Clark's leg, pushed the elevator button, and took Clark to paramedics waiting on the first floor.

Elmer Atkinson, a Chicago police officer, testified that he responded to an assignment to assist the fire department at the building on the night Clark was injured. When he arrived, Atkinson observed fire fighters and paramedics attempting to free Clark's leg which was pinned between the wall of the elevator shaft and the floor of the elevator car at the lobby level. Atkinson stated that the floor of the elevator car was approximately four inches below the lobby level. According to Atkinson, Clark told him that the floor of the elevator car was below the lobby level when he entered the elevator. Clark also told Atkinson that he fell as he was attempting to enter the elevator and it began moving. Atkinson testified that, when he examined the elevator on the evening of Clark's ...


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