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Thompson v. Gordon

May 21, 2004

[5] CORINNE THOMPSON, INDIV. AND AS INDEPENDENT ADMINISTRATOR OF THE ESTATE OF TREVOR THOMPSON, DECEASED, AND AS INDEPENDENT ADMINISTRATOR OF THE ESTATE OF AMBER THOMPSON, DECEASED, PLAINTIFF-APPELLANT,
v.
CHRISTIE GORDON; GRAND AVENUE PROPERTIES, INC.; GURNEE MILLS (MLP) LIMITED PARTNERSHIP, F/K/A GURNEE MILLS LIMITED PARTNERSHIP; GURNEE PROPERTIES ASSOCIATED LIMITED PARTNERSHIP; WESTERN DEVELOPMENT CORPORATION; THE MILLS CORPORATION; THE MILLS LIMITED PARTNERSHIP; GURNEE MILLS II LLC; AND GURNEE MILLS LLC, DEFENDANTS (JACK E. LEISCH AND ASSOCIATES, INC.; AND CH2M HILL, INC., DEFENDANTS-APPELLEES).



[6] Appeal from the Circuit Court of Lake County. No. 98-L-945 The Honorable Stephen E. Walter, Judge, Presiding.

[7] The opinion of the court was delivered by: Justice Hutchinson

[8]  This matter comes before the court as an interlocutory appeal brought pursuant to Supreme Court Rule 308 (155 Ill. 2d R. 308). Plaintiff, Corinne Thompson, individually and as independent administrator of the estates of Trevor Thompson and Amber Thompson, both deceased, appeals the trial court's order striking the affidavit of her retained opinion witness, Andrew Ramisch, an engineer not licensed in the State of Illinois. For the reasons that follow, we decline to answer the first certified question, we answer the second certified question, and we reverse and remand.

[9]  Following a fatal motor vehicle collision in Gurnee that occurred in November 1998, plaintiff initiated a cause of action against defendants, Christie Gordon, Grand Avenue Properties, Inc., Gurnee Mills (MLP) Limited Partnership, f/k/a Gurnee Mills Limited Partnership, Gurnee Properties Associated Limited Partnership, Western Development Corporation, Jack E. Leisch & Associates, Inc. (Leisch), CH2M Hill, Inc. (CH2M), The Mills Corporation, The Mills Limited Partnership, Gurnee Mills II LLC, and Gurnee Mills LLC. As amended, plaintiff's complaint included allegations of improper roadwork at or near the accident site. Plaintiff alleged that defendants, specifically Leisch and CH2M, had a duty to exercise reasonable care in designing the roadway near the accident site and that their failure to do so proximately caused plaintiff's injuries and the deaths of Trevor and Amber Thompson.

[10]   In November 2002, defendants Leisch and CH2M moved for summary judgment (see 735 ILCS 5/2--1005 (West 2002)). In response to their motion, plaintiff submitted the affidavit of Andrew Ramisch, plaintiff's expert opinion witness retained pursuant to Supreme Court Rule 213 (177 Ill. 2d R. 213). According to his curriculum vitae, Ramisch is a civil engineer, licensed in the District of Columbia, with approximately 30 years' experience in the analysis, design, and construction of roadways.

[11]   In his affidavit, Ramisch opined that CH2M failed to meet the standard of care in designing the roadway that was at or near the site of the accident. Thereafter, in January 2003, defendants Leisch and CH2M moved the trial court to strike Ramisch's affidavit, arguing that Ramisch was not qualified to render a professional opinion because he was not licensed as a professional engineer in Illinois pursuant to the Illinois Professional Engineering Practice Act of 1989 (the Engineering Act) (225 ILCS 325/1 et seq. (West 2002)). Defendants relied on this court's opinion in Van Breemen v. Department of Professional Regulation, 296 Ill. App. 3d 363 (1998), in support of their motion to strike.

[12]   The trial court conducted a hearing and, following the arguments of the parties, granted defendants' motion to strike. In September 2003, plaintiff moved to reconsider the trial court's decision to strike Ramisch's affidavit. The trial court denied plaintiff's motion to reconsider but granted plaintiff's subsequent motion for interlocutory appeal pursuant to Supreme Court Rule 308 (155 Ill. 2d R. 308), and certified the following questions:

[13]   "Whether the work of an engineer, unlicensed in the State of Illinois, as an Illinois Supreme Court Rule 213(f) retained opinion witness in a litigated matter in the State of Illinois, constitutes the unlicensed practice of professional engineering under the Illinois Professional Engineering Act (225 ILCS 325/1 (1992))"; and

[14]   "Whether Van Breemen v. Department of Regulation, 296 Ill. App. 3d 363 *** (2nd Dist. 1998) controls the issue of whether a trial court strikes, on motion, the affidavit of an Illinois Supreme Court Rule 213(f) retained opinion witness, retained in a litigated matter in the State of Illinois, where the opinion witness is not licensed in the State of Illinois."

[15]   Plaintiff timely filed an application for leave to appeal, and this court granted the application. We now address the certified questions presented, reverse the trial court's order, and remand.

[16]   This court's examination in an interlocutory appeal is strictly limited to the questions certified by the trial court and, as with all questions of law, is a de novo review. In re Consolidated Objections to Tax Levies of School District No. 205, 306 Ill. App. 3d 1104, 1107 (1999), citing Lanxon v. Magnus, 296 Ill. App. 3d 377, 379 (1998). Thus, our task is to answer the certified questions rather than to rule on the propriety of any underlying order. P.J.'s Concrete Pumping Service, Inc. v. Nextel West Corp., 345 Ill. App. 3d 992, 998 (2004), citing Danner v. Norfolk & Western Ry. Co., 271 Ill. App. 3d 598, 601 (1995). In the interests of judicial economy and reaching an equitable result, however, a reviewing court may go beyond the certified questions and consider the appropriateness of the order giving rise to the appeal. P.J.'s Concrete Pumping Service, 345 Ill. App. 3d at 998-99, citing Bright v. Dicke, 166 Ill. 2d 204, 208 (1995).

[17]   In the present case, the first question we are called upon to consider is whether the work of an engineer who is retained as a Rule 213(f) opinion witness constitutes the unlicensed practice of professional engineering under the Engineering Act when the engineer is unlicensed in Illinois. We are unable to answer this first question for a number of reasons. First, the parties do not attempt to explain how the first question involves a question of law that is governed by conflicting authority, and second, they do not explain how entertaining an immediate appeal of this question will materially advance the ultimate termination of the litigation. See 155 Ill.2d R. 308(a). These insufficiencies render the first question unsuitable for our review.

[18]   Third, and perhaps most important, the initial determination of what constitutes the unlicensed practice of engineering in Illinois is relegated, not to the appellate court, but to the Department of Professional Regulation. See 20 ILCS 2105/2105--1 et seq. (West 2002); 225 ILCS 325/1 et seq. (West 2002). In section 5--15 of the Civil Administrative Code of Illinois (20 ILCS 5/5--15 (West 2002)), the legislature created the Department of Professional Regulation (the Department) as a department of state government. In article 2105 of the Civil Administrative Code of Illinois (the Department of Professional Regulation Law) (20 ILCS 2105/2105--1 et seq. (West 2002)), the legislature set out the powers and duties of the Department. In section 2105--10 of the Department of Professional Regulation Law, the legislature declared:

[19]   "The practice of the regulated professions *** is hereby declared to affect the public health, safety, and welfare of the People of this State and in the public interest is subject to regulation and control by the Department of Professional Regulation.

[20]   It is further declared to be a matter of public interest and concern that standards of competency and stringent penalties for those who violate the public trust be established to protect the public from unauthorized or unqualified persons representing one ...


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