Voss v. Lincoln Mall Management Co., 87-1687

CourtUnited States Appellate Court of Illinois
Citation166 Ill.App.3d 442,116 Ill.Dec. 841,519 N.E.2d 1056
Docket NumberNo. 87-1687,87-1687
Parties, 116 Ill.Dec. 841 Gerald VOSS, Plaintiff-Appellant, v. LINCOLN MALL MANAGEMENT COMPANY; J.C. Penney Company, Inc.; J.C. Penney Properties, Inc.; Pennmatt Associates; and Lincoln Mall Company, Defendants- Appellees.
Decision Date09 February 1988

Pretzel & Stouffer, Chtd., Chicago (Robert Marc Chemers, Martin A. Kanofsky, of counsel), for defendants-appellees.

Justice STAMOS delivered the opinion of the court:

This is a permissive interlocutory appeal under Supreme Court Rule 308 (107 Ill.2d R. 308) from an order of the circuit court of Cook County entered on May 19, 1987, denying plaintiff's motion to allow the testimony of an expert witness at the trial of plaintiff's personal-injury action. Disclosure of the expert's identity had not been made until after the date specified in an earlier pretrial order for identification of experts and after a second pretrial order entered under Supreme Court Rules 218 and 220 (107 Ill.2d Rules 218, 220) had barred plaintiff from offering any such expert testimony.

Application for leave to appeal was filed on May 29, 1987, and allowed on July 9, 1987. For the reasons hereinafter set forth, we vacate our order allowing leave to appeal as having been improvidently entered and dismiss this appeal.

In connection with reconsidering our allowance of plaintiff's application for leave to appeal, we have addressed the question whether allowance of the application might have materially advanced the ultimate termination of the litigation. We have concluded that it would not have done so.

FACTS

The trial court has certified the following question for appeal:

"Whether the disclosure of experts by plaintiff was within the requirements of Supreme Court [R]ule 220, notwithstanding the June 28, 1985[,] pre[ ]trial order limiting the testimony of expert witnesses."

At the time the order of May 19, 1987, was entered that denied plaintiff's motion to permit the trial testimony of his expert witness, the case was on the court's trial calendar for July 6, 1987, after having been restored to the trial call on or about February 6, 1987. Defendants contend that plaintiff's efforts to secure permission for his expert to testify came at the "eleventh hour."

The underlying lawsuit is for personal injuries allegedly sustained in December 1981 in a fall from a retaining wall. The first amended complaint to that effect was filed on May 7, 1986. Essentially, the complaint alleged negligent maintenance, negligent In certifying the question for appeal, the trial court found that an immediate appeal may materially advance the ultimate termination of the litigation. The record on appeal does not elaborate on this finding.

[116 Ill.Dec. 843] construction, and negligent failure to warn.

In his application for leave to appeal, filed on May 29, 1987, plaintiff argued that an immediate appeal will advance the ultimate termination of the litigation, because (1) "[a]n interlocutory appeal avoids the necessity of raising the issue after trial," at which time a retrial might be the remedy and would "cause the unnecessary expenditure of judicial resources," and (2) "[t]he availability of expert testimony affects the litigation plan of all the parties," in particular materially affecting the type of proof and the evidentiary issues before the trial court.

In their answer to plaintiff's application for leave to appeal, filed on June 11, 1987, defendants argued that the order of May 19, 1987, "on the record as made, does not warrant review by this court, hence the application for leave to appeal should be denied." Stated otherwise, defendants argued that "[t]his is not a case which warrants this Court's attention under the interlocutory appeal provisions of Supreme Court Rule 308" and that "the trial Court's ruling of May 19, 1987 was eminently correct, in accord with the applicable law and does not warrant review by this Court." Except for the generalized assertions just quoted, defendants' answer to plaintiff's application argued the merits of the appeal itself, and--notwithstanding such assertions as that plaintiff's efforts came at the eleventh hour; that plaintiff's position as applicant was "ludicrous, if not insincere"; that the contentions in his application "smack of trickery"; that his conduct in the case was "evasive"; and that "[t]his conduct should not be condoned"--defendants did not substantially address the question whether an immediate appeal would or might materially advance the litigation's ultimate termination. Indeed, defendants argued simply that "[t]his Court should not entertain this Application * * * because it is the Applicant's total disregard of [trial-court orders] which brings him to this Court, not any 'substantial ground for difference of opinion', as required by our Supreme Court's Rule 308." (Emphasis added.)

Our allowance of plaintiff's application for leave to appeal occurred without oral argument, but subsequent oral argument of the appeal's merits was heard on November 3, 1987.

OPINION

Supreme Court Rule 308, originally adopted in 1967, authorizes this court to allow appeal of interlocutory orders not otherwise appealable if an appropriate application is filed and the trial court has found (1) that the order involves a question of law as to which there is substantial ground for difference of opinion and (2) that an immediate appeal may materially advance the ultimate termination of the litigation. (107 Ill.2d R. 308(a), (b).) The application for leave to appeal is required to state why an immediate appeal may materially advance termination of the litigation. (107 Ill.2d R. 308(c).) However, even after the trial court has made the required finding and the application has stated why an immediate appeal is justified, allowance of the appeal is discretionary and depends on the concurrence of this court. 107 Ill.2d R. 308(a); Camp v. Chicago Transit Authority (1980), 82 Ill.App.3d 1107, 1111, 38 Ill.Dec. 473, 476, 403 N.E.2d 704, 707; see Petruchius v. Don Roth Restaurants, Inc. (1979), 79 Ill.App.3d 1071, 1076, 35 Ill.Dec. 278, 282, 398 N.E.2d 1228, 1232.

We have power to ensure that the authority to pursue interlocutory appeals is not abused, just as Federal courts have such power with regard to their equivalent jurisdictional statute. (107 Ill.2d R. 308, Committee Comments, at 415; Camp, 82 Ill.App.3d at 1111, 38 Ill.Dec. at 476, 403 N.E.2d at 707.) The adoption of Rule 308 did not eliminate "the approach of restricting interlocutory appeals by permission to the very exceptional situation in which the resolution of an important question at an interlocutory stage will clearly advance the administration of justice." (Ill.Ann.Stat., ch. 110A, par. 308, Historical & Practice Notes, at 291 (Smith-Hurd 1985).) Appeals under Rule 308 should be limited to certain "exceptional" circumstances; the rule should be strictly construed and sparingly exercised. (People v. Pollution Control Board (1984), 129 Ill.App.3d 958, 965, 85 Ill.Dec. 84, 88, 473 N.E.2d 452, 456; Getto v. City of Chicago (1981), 92 Ill.App.3d 1045, 1048, 48 Ill.Dec. 588, 590-91, 416 N.E.2d 1110, 1112-13, citing People ex rel. Mosley v. Carey (1979), 74 Ill.2d 527, 538, 25 Ill.Dec. 669, 387 N.E.2d 325, 330, cert. denied, 444 U.S. 940, 100 S.Ct. 292, 62 L.Ed.2d 306.) The rule "was not intended to open the floodgates to a vast number of appeals from interlocutory orders in ordinary litigation." Camp, 82 Ill.App.3d at 1110, 38 Ill.Dec. at 476, 403 N.E.2d at 707.

Although Illinois decisions have provided comparatively little guidance for determining whether an immediate appeal may materially advance the ultimate termination of litigation, the leading case of Renshaw v. General Telephone Co. (1983), 112 Ill.App.3d 58, 67 Ill.Dec. 778, 445 N.E.2d 70, reflects standards that are apt in the present case. In Renshaw, the plaintiff had filed a two-count complaint against a telephone company and the city of Carmi, charging willful and wanton misconduct. The city then filed a third-party complaint, charging that the negligence of certain others had contributed to the plaintiff's injury and seeking contribution to any recovery by the plaintiff. The third-party defendants' motion to dismiss was denied, and they sought to appeal as to whether the third-party complaint might be based on mere negligence when the primary complaint charged willful and wanton misconduct. The appellate court denied leave to appeal, noting that the suit was one for personal-injury damages, with few parties and with issues "no more complicated than those of an ordinary personal injury case," and adding: "Trial of the case should be of comparatively short duration, probably no more than two to three days, and the presence of the subject third-party complaint in the case will neither unduly complicate nor unduly delay the final termination of the case." Renshaw, 112 Ill.App.3d at 64, 67 Ill.Dec. at 783, 445 N.E.2d at 75.

By contrast, where two prior appeals had already occurred in a case and the third count of plaintiff's complaint was now before the appellate court on an application under Rule 308 to review the trial court's denial of a motion to dismiss, the appellate court allowed the application and reversed the trial court's order in Ewing v. Liberty Mutual Insurance Co. (1985), 130 Ill.App.3d 716, 86 Ill.Dec. 35, 474 N.E.2d 949. Ewing was a personal-injury case, and the complaint's third count involved a bad-faith claim against an insurance company. By holding that the count did not state a cause of action, the appellate court averted the need for a trial that might examine at length the insurance company's continuing relationship with the plaintiff's employer and with the insurance company's examining physician as well as the insurance company's alleged combination...

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