Yamnitz v. William J. Diestelhorst Co., Inc.

• Decision Date: 07 October 1993
• Docket Number: No. 4-92-0285,4-92-0285
• Citation: 621 N.E.2d 1046,251 Ill.App.3d 244,190 Ill.Dec. 593
• Parties: , 190 Ill.Dec. 593 William YAMNITZ, d/b/a Yamnitz & Associates, Plaintiff-Appellee, v. WILLIAM J. DIESTELHORST COMPANY, INC., a Corporation, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1046

621 N.E.2d 1046

251 Ill.App.3d 244, 190 Ill.Dec. 593

William YAMNITZ, d/b/a Yamnitz & Associates, Plaintiff-Appellee, v. WILLIAM J. DIESTELHORST COMPANY, INC., a Corporation Defendant-Appellant.

No. 4-92-0285.

Appellate Court of Illinois Fourth District.

Argued Aug. 18, 1993.

Decided Oct. 7, 1993.

Denis A. McGrady, Jr. (argued), McGrady & McGrady, Gillespie, for defendant-appellant.

Larry D. Kuster (argued), Rammelkamp, Bradney, Dahman, Kuster, Keaton, Fritsche & Lindsay, P.C., Jacksonville, for plaintiff-appellee.

Justice McCULLOUGH delivered the opinion of the court:

Plaintiff William Yamnitz, d/b/a Yamnitz & Associates, sued defendant William J. Diestelhorst Company, Inc., in the circuit court of Macoupin County in an action to enforce a mechanics' lien pursuant to section 23 of the Mechanics' Lien Act (Act) (Ill.Rev.Stat.1985, ch. 82, par. 23). Defendant, a general contractor, had a contract with the State of Illinois Department of Transportation (IDOT) and Macoupin County for a street improvement project in Girard, Illinois. Plaintiff and defendant entered into a subcontract, and this action concerns the parties' disputes over how much money plaintiff was due under the subcontract. Following a jury trial, a verdict was entered in favor of plaintiff and against defendant in the total amount of $40,948.92. The jury found defendant owed plaintiff $18,000 as the balance due under the subcontract and $22,948.92 as interest due on the unpaid balance. Judgment was entered on the verdict.

The issues raised on appeal are whether (1) the trial court erred by barring the opinion testimony of Joseph Schoppet, defendant's certified public accountant (CPA), because the witness was not disclosed as an expert pursuant to Illinois Supreme Court Rule 220 (134 Ill.2d R. 220); (2) the trial court erred by barring the opinion testimony of Walter J. Diestelhorst, owner and chief operating officer of defendant, for the failure of defendant to disclose that witness pursuant to Supreme Court Rule 220; (3) the trial court erred by allowing into evidence testimony concerning defendant's contract with the State of Illinois and Macoupin County because any relevance it might have had was outweighed by its prejudicial impact on defendant; (4) the trial court improperly refused to give the jury the following instruction: "Contract language is to be given its clear meaning if clarity is present, but ambiguities or uncertainties are to be resolved against the party creating them"; (5) plaintiff was not entitled to any interest under the subcontract between the parties because plaintiff prevented defendant from getting paid for the job by filing a mechanics' lien; and (6) whether the evidence so overwhelmingly favored defendant that the trial court should not have allowed the verdict to stand or, in the alternative, whether the jury's verdict was against the manifest weight of the evidence. We affirm.

The first issue is whether the trial court erred by barring the opinion testimony of Joseph Schoppet, defendant's CPA, because the witness was not disclosed as an expert pursuant to Rule 220. Under the written subcontract between the parties, plaintiff was to control and oversee construction of a portion of the overall project. Defendant provided the manpower for most of the work and bankrolled the job for plaintiff. The contract between the parties provided that defendant would furnish at the expense of plaintiff "weekly payroll payments to the [plaintiff's] labor force, the actual cost to be deducted from" the amount due to plaintiff under the subcontract. In charging plaintiff for labor costs, defendant included a 10% charge "for overhead." That was one of the items in dispute in this case.

Schoppet was disclosed as a witness in discovery, but not as an expert witness pursuant to Rule 220. Defendant does not argue that Schoppet is not an expert. Indeed, defendant wants Schoppet's opinions that contractors commonly assign overhead costs as a percentage of labor when calculating actual costs and that, if a contractor fails to do this, the contractor would go out of business.

Schoppet was not disclosed as an expert, and, pursuant to Rule 220, the trial court ruled that Schoppet could not testify as an expert on the question of charges for overhead. As an offer of proof, defendant submitted a deposition of Schoppet in another case (William Yamnitz, d/b/a Yamnitz & Associates v. William J. Diestelhorst Company, Inc., Greene County case No. 85-L-80), which the trial court considered. Defendant was also allowed to have Schoppet testify as an additional offer of proof.

Defendant was Schoppet's client in 1984. He had been auditing construction clients since 1975 and was familiar with chargeable labor rates in the construction industry. Schoppet testified there are three items to consider in calculating actual labor costs: the actual base pay, fringe benefits, and a percentage of direct labor to cover overhead costs. The percentage for overhead varies from contractor to contractor and depends on experience. A company has to take a percentage to recover overhead costs or it would not make a profit. Overhead includes several types of expenses, but the charge is applied to labor because it is the most common denominator. Schoppet would take the payroll of a particular contractor and compare that to the company's whole amount of payroll to arrive at the percentage to allocate to the particular job. This was done for defendant in 1984. Schoppet explained how he calculated the percentage to be applied. Schoppet stated his deposition testimony was essentially the same as his testimony in court. A review of the transcript of Schoppet's deposition discloses that he never opined that the charge was a custom of the construction industry and, although the same parties and law firms were involved, there is no disclosure in the deposition that Schoppet would be called as an expert witness in either case. The offer of proof was denied.

It is defendant's argument that Schoppet need not be disclosed as an expert pursuant to Rule 220 simply because he was defendant's accountant in 1984. According to defendant, Schoppet is an "occurrence witness." Defendant cites Smith v. Central Illinois Public Service Co. (1988), 176 Ill.App.3d 482, 493-95, 125 Ill.Dec. 872, 879-80, 531 N.E.2d 51, 58-59, in which this court held that an employee engineer was not a retained expert who had to be disclosed pursuant to Rule 220 because (1) he was deposed and his status as expert was fully disclosed in the deposition and (2) he was intimately involved in the project long before any litigation was ever contemplated. Relying on Tzystuck v. Chicago Transit Authority (1988), 124 Ill.2d 226, 124 Ill.Dec. 544, 529 N.E.2d 525, this court noted that the surprise was that the employee testified as an expert, not that he testified at all, and yet determined that Rule 220 disclosure was not needed.

In Wakeford v. Rodehouse Restaurants of Missouri, Inc. (1992), 154 Ill.2d 543, 182 Ill.Dec. 653, 610 N.E.2d 77, the Illinois Supreme Court reconsidered Tzystuck and referred to this court's opinion in Smith. The appropriate test for determining if an expert witness has been "retained" as such has been restated thusly:

"[T]he question of whether a witness must be disclosed as an expert under Rule 220 depends on the expert's relationship to the case. If the expert is intimately involved in the underlying facts giving rise to the litigation and he would reasonably be expected to form an opinion through that involvement, then disclosure is not required. In such a case, the opposing party is unlikely to be surprised by the testimony. On the other hand, where the expert's contact with the case is slight, or where the opinion rendered is unrelated to the expert's involvement in the case, then disclosure is required." (Wakeford, 154 Ill.2d at 549, 182 Ill.Dec. at 656, 610 N.E.2d at 80.)

In the absence of an abuse of discretion, the trial court's sanction for noncompliance with Rule 220 will not be overturned. Betts v. Manville Personal Injury Settlement Trust (1992), 225 Ill.App.3d 882, 913, 167 Ill.Dec. 1063, 1083, 588 N.E.2d 1193, 1213.

In this case, there was no abuse of discretion since the opinions held by Schoppet were not formulated exclusively as a result of his working for defendant on this project, but as a result of his working with a number of clients in the construction industry over a period of several years. Defendant also alludes to the fact that the trial court did not order a schedule of discovery and disclosure of experts. In Barth v. Reagan (1990), 139 Ill.2d 399, 418, 151 Ill.Dec. 534, 543, 564 N.E.2d 1196, 1205, the Illinois Supreme Court rejected the argument that there cannot be a Rule 220 violation without court-ordered discovery. Cases involving treating physicians are inapposite and are not precedent for this case. Moreover, if Rule 220 has any significance at all, it is important for the courts to discontinue the erosive process. See Chapman, Jaws XVI: The Exceptions That Ate Rule 220, 26 J. Marshall L.Rev. 189 (1992).

The next issue is whether the trial court erred by barring the opinion testimony of Walter J. Diestelhorst, owner and chief operating officer of defendant, for the failure of defendant to disclose that witness pursuant to Rule 220. Defendant did not include in its post-trial motion any allegation regarding the trial court's rulings on plaintiff's objection to Diestelhorst's testimony. The failure to specify an objection to a trial court's ruling in a post-trial motion waives that issue for purposes of appeal. (Brown v. Decatur Memorial Hospital (1980), 83 Ill.2d 344, 349-50, 47 Ill.Dec. 332, 334-35, 415 N.E.2d 337, 339-40.) In addition, defendant has only a three-sentence argument with regard to this issue and cites no legal authority in violation of Illinois Supreme Court Rule 341(e)(7) (134 Ill.2d R. 341(e)(7)). Finally, de...