Ruane v. Amore

• Decision Date: 14 March 1997
• Docket Number: No. 1-95-1353,1-95-1353
• Citation: 677 N.E.2d 1369,222 Ill.Dec. 570,287 Ill.App.3d 465
• Parties: , 222 Ill.Dec. 570 Thomas A. RUANE and Kathleen P. Ruane, formerly Kathleen P. Daley, Plaintiffs-Appellants, v. Denise AMORE, Annette S. Smith, Susan E. Price, Baird & Warner, Inc., Richard G. Larsen and Curtis Edlund, doing business as Larsen & Edlund, Attorneys at Law, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 1369

677 N.E.2d 1369

287 Ill.App.3d 465, 222 Ill.Dec. 570

Thomas A. RUANE and Kathleen P. Ruane, formerly Kathleen P.

Daley, Plaintiffs-Appellants, v. Denise AMORE, Annette S. Smith, Susan E. Price, Baird &

Warner, Inc., Richard G. Larsen and Curtis Edlund,

doing business as Larsen & Edlund,

Attorneys at Law, Defendants-Appellees.

No. 1-95-1353.

Appellate Court of Illinois,

First District,

Fifth Division.

March 14, 1997.

[222 Ill.Dec. 573] [287 Ill.App.3d 467] James McClure, Elmhurst, for Plaintiffs-Appellants.

Fiore DiNovi & Associates, West Chicago, for Amore, Smith and Price.

Douglas C. Crone, John W. Carver, Tribler & Orpett, Chicago, for Baird & Warner, Inc.

Ronald A. Bredemann, Flood & Bredemann, Des Plaines, for Larsen and Edlund.

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.

[222 Ill.Dec. 574] 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 denial of their motions to reopen discovery and to disclose an expert witness, and the granting of defendants' motions for summary judgment.

OPINION

Plaintiffs have moved to supplement the record on appeal with a copy of the motion for disclosure of an expert witness. It is requested that this court permit the copy of the written disclosure to supplement the record in accordance with Supreme Court Rule 329 (134 Ill.2d R. 329). This motion includes an exhibit of a proposal prepared by the plaintiffs' proffered expert witness, E.L. Knight, Mason Contractor (Knight).

Rule 329 authorizes supplementation of the record only with documents that were actually before the circuit court, and exhibits that were never filed in the circuit court or considered by the trial judge will not be considered on appeal. Palmros v. Barcelona, 284 Ill.App.3d 642, 220 Ill.Dec. 233, 672 N.E.2d 1245 (1996), citing Prochnow v. El Paso Golf Club, Inc., 253 Ill.App.3d 387, 192 Ill.Dec. 614, 625 N.E.2d 769 (1993). A copy of plaintiffs' motion to disclose an expert witness is already in the record. In this respect, the motion is moot. The attached exhibit of the proposal prepared by plaintiffs' proffered expert witness, Knight, was not before the circuit court. Since our review is limited to matters of record, the motion to supplement the record with this exhibit is denied.

Plaintiffs contend that the circuit court's denial of their December 22, 1994, motions to reopen discovery and to disclose an expert witness resulted in a manifest injustice and, therefore, was an abuse of discretion. Baird & Warner and Larsen & Edlund contend that plaintiffs have waived this issue because contrary to Supreme Court Rule 303 (134 Ill.2d R. 303), plaintiffs did not make reference to or include these orders in their notice of appeal.

Illinois Supreme Court Rule 303 provides that the notice of appeal "shall specify the judgment or part thereof appealed therefrom and the relief sought from the reviewing court." 134 Ill.2d R. 303(b)(2). However, the notice of appeal is to be liberally construed as a whole. Glassberg v. Warshawsky, 266 Ill.App.3d 585, 202 Ill.Dec. 881, 638 N.E.2d 749 (1994). The purpose of a notice of appeal is to inform the party prevailing in the trial court that the opposing party seeks review of the judgment; to this end, where the notice sufficiently sets forth the judgment complained of and the relief sought, mere formal defects will not deprive this court of jurisdiction. Taylor v. Peoples Gas Light & Coke Co., 275 Ill.App.3d 655, 211 Ill.Dec. 942, 656 N.E.2d 134 (1995). An appeal from a final judgment draws into issue all prior non-final orders which produced the final judgment. Burtell v. First Charter Service Corp., 76 Ill.2d 427, 433, 31 Ill.Dec. 178, 180, 394 N.E.2d 380, 382 (1979). Thus, an unspecified judgment is reviewable if it is a "step in the procedural progression leading to the judgment specified in the notice of appeal." Taylor, 275 Ill.App.3d 655, 211 Ill.Dec. 942, 656 N.E.2d 134, citing Burtell, 76 Ill.2d at 435, 31 Ill.Dec. at 181, 394 N.E.2d at 383.

In the present case, plaintiffs specifically appealed from the order of March 15, 1995, granting motions for summary judgment as to all defendants. The December 22, 1994, orders denying plaintiffs' motions to reopen discovery and to disclose an expert witness was a step in the procedural progression culminating in the granting of the motions for summary judgment. Accordingly, the notice of appeal fairly apprised defendants of the March 15, 1995, order appealed and was sufficient to confer jurisdiction over the December 22, 1994, orders.

In support of plaintiffs' contention that the denial of the December 22, 1994, motions was an abuse of the circuit court's discretion, plaintiffs argue that in answering interrogatories propounded by defendants and during the deposition testimony of Thomas Ruane, Knight was disclosed by plaintiffs; that the prejudicial effect of the lack of expert testimony is great; that plaintiffs did not act in bad faith and that since Knight had not been retained as an expert witness, his disclosure was not required to be divulged 60 days prior to the trial date.

Rule 220(b)(1) provides:

"Where the testimony of experts is reasonably contemplated, the parties will act in good faith to seasonably: (i) Ascertain the identity of such witnesses, and (ii) obtain from them the opinions upon which they may be requested to testify. [A]s to all expert witnesses not previously disclosed, the trial court, on its own motion, or on the motion of any party after the first pretrial conference, shall enter an order scheduling the dates upon which all...