Find Legal Information

Opinion originally filed
July 18, 2002;
Motion to publish in its entirety granted
October 2, 2002.

JUSTICE GOLDENHERSH delivered the opinion of the court:

James W. Holland and John Storey and Rose Storey, doing business as StoreylandMobile Home Park (Storeyland) (collectively defendants), appeal from a judgment of thecircuit court of Madison County awarding damages to Jim L. Fortae (plaintiff) for personalinjuries. On appeal, defendants raise numerous issues. This court affirms.

Delbert Akers was driving a semitruck that was hauling part of a manufactured home. Acting as lead vehicle was a pickup truck driven by defendant Holland. The truck drivenby Akers collided with the rear end of the vehicle driven by Holland, forcing Holland'svehicle into a lane of oncoming traffic. The Holland vehicle then collided with a vehicle inwhich plaintiff was a passenger.

Plaintiff filed suit, originally naming Holland, John Storey and Rose Storey, doingbusiness as Storeyland Mobile Home Park, Akers, and Carousel Building Company(Carousel) as defendants. Subsequent to the trial court's finding of a good-faith settlement,Akers and Carousel were released. Plaintiff amended his complaint to allege in-concertliability against Holland and Storeyland. The court denied cross-motions for summaryjudgment on the claims of in-concert liability, and the case proceeded to a jury trial.

At the trial, both Holland and Akers described how the accident occurred. Hollandtestified that while he was driving southbound on Route 111, he noticed a couple of vehiclestwo to three blocks ahead of him slowing down. Holland had been driving approximately55 miles per hour and began slowing down. At this time, according to Holland, Akers wasapproximately a half mile behind him. As Holland approached the location he had seen thebrake lights, he saw a dog enter the roadway. At that point, the speed limit was 55 miles perhour, and Holland was traveling approximately 20 to 25 miles per hour. Holland testifiedthat he had been applying his brakes up until this time and that he did not apply them harderupon seeing the dog enter the road. Holland testified that, due to a temporary loss ofconsciousness he suffered from the accident, the last thing he remembers is looking in hisrearview mirror and seeing the Akers vehicle immediately behind him striking the rear ofhis vehicle. Holland was confronted with his deposition testimony that from the time he firstsaw the other vehicles until the time of the accident three to five minutes had passed, but hestated at the trial that it could have taken less time.

Holland testified that his responsibilities as a lead vehicle included maintaining adistance of between a quarter mile and a half mile away from the transport vehicle when thetraffic allowed and notifying the transport vehicle of dangers when possible, via CB radio. Holland testified that he had his hand on the CB radio at the time of the accident but hadbeen unable to use it to contact Akers.

Akers testified that both vehicles had come to a stop at a stop sign prior to theaccident and were gaining speed. Akers had reached the speed of 45 miles per hour, andHolland had reached the speed of 55 miles per hour, bringing the distance between the twovehicles to 250 feet. Akers stated that he was not trying to increase the distance between thetwo vehicles at that time because he was trying to build up speed with the trailer. Akerstestified that he then observed Holland slow down and come to a stop but that he was unableto avoid a collision. Akers pled guilty to a citation for the failure to reduce speed to avoidan accident.

Akers testified he believed that the load for his vehicle was too heavy and was unsafe. Akers testified that when making a transport, drivers should keep a distance of a quarter mileto a half mile between them and should stay in constant CB alert in order to give the driverof the transport additional time to brake. Both Akers and Holland testified that, as far asthey knew, the radios were working at the time of the accident.

Akers testified that in another incident earlier on the day of the accident, Holland hadmade an abrupt stop near a Blockbuster Video store. Akers stated that when this occurred,he yelled at Holland on the radio and told him that he should not make such stops becausethe transport was a heavy load. Akers testified that Holland did not respond. Hollandtestified that he had not heard Akers make any prior comments about sudden stopping.

The court denied defendants' motions for a directed verdict, made at the end ofplaintiff's case and at the close of the evidence. The jury returned a verdict awardingdamages to plaintiff. Defendants appeal.

Plaintiff argues that defendants' brief should be stricken because the statement offacts contains factual misstatements and mischaracterizations. See 155 Ill. 2d R. 341(e)(6);Ryan v. Katz, 234 Ill. App. 3d 536, 537, 600 N.E.2d 1206, 1207 (1992). We find thatdefendants' statement of facts does not warrant striking their brief.

Defendants make various allegations of improper conduct by plaintiff and his counselduring the trial. For some of these claims, such as the allegations that plaintiff used leadingquestions and made improper comments about Holland's reference to his health, defendantsfail to present an adequate record and citation. See 155 Ill. 2d R. 341(e). For all of theseclaims, defendants fail to show that they were denied a fair trial. A reversal is onlyappropriate when the challenged conduct is of such a character that it prevents a party fromreceiving a fair trial. Magna Trust Co. v. Illinois Central Ry. Co., 313 Ill. App. 3d 375, 396,728 N.E.2d 797, 814 (2000). This does not mean that the trial must be flawless and error-free. Perry v. Murtagh, 278 Ill. App. 3d 230, 240, 662 N.E.2d 587, 594 (1996). Forexample, defendants contend that an exhibit on lost wages should have been strickenbecause plaintiff's counsel stated in closing argument that the exhibit could be disregardedbecause it was not based on the evidence. Nonetheless, defendants fail to address the court'sruling that the statement was merely argument, and defendants fail to display any substantialprejudice. Similarly, defendants fail to identify how any emotional reaction by plaintiffsubstantially prejudiced the jury. See Nowakowski v. Hoppe Tire Co., 39 Ill. App. 3d 155,159, 349 N.E.2d 578, 582-83 (1976) (the trial court is in the best position to evaluate witnessconduct).

The most serious of defendants' contentions is the claim that plaintiff's counsel madedisparaging comments in closing argument. Plaintiff's counsel made several commentsabout defendants' counsel, the most critical of which were as follows:

"Because what did Delbert Akers say? And I will be the first to admit that histestimony was darned confusing. It got a little crazy[,] didn't it? Mr. Roth [defensecounsel] got a little crazy.

*** This is the first time I've ever heard an attorney call himself unreliable.*** Well, he just said he was an advocate just like I am for [plaintiff]. Does thatmean Mr. Roth was unreliable, too? Is that what he said?

*** I wrote down a series of statements that Mr. Roth made which show thatwhat he has tried to do is mislead you. ***

*** The reason Mr. Roth has attempted to mislead you-[a]nd you have everyright to be offended with that."

Although ad hominem arguments are discouraged, attorneys are given wide latitudein closing argument, and a judgment will not be disturbed unless the commentary is soprejudicial that it deprived the opponent of a fair trial. Decker v. St. Mary's Hospital, 249Ill. App. 3d 802, 821, 619 N.E.2d 537, 550 (1993). Every reasonable presumption must beindulged that the trial court performed its duty, and the trial court will not be reversed unlessthere has been a clear abuse of discretion. Lawing v. Chicago Transit Authority, 142 Ill.App. 3d 119, 125, 491 N.E.2d 145, 149 (1986). Considerable deference is given to the trialcourt in determining whether comments deprived a party of a fair trial, because the trial courtis in a superior position to assess the accuracy and prejudicial effect of counsel's commentson the jury. Magna Trust Co., 313 Ill. App. 3d at 394, 728 N.E.2d at 813. The trial courthad the opportunity to hear all of the testimony and arguments, and it was also able toobserve the parties and counsel throughout the trial and gauge their credibility and effect onthe jury. Lawing v. Chicago Transit Authority, 142 Ill. App. 3d 119, 125, 491 N.E.2d 145,149 (1986). Comments similar to those made by defendants' counsel have been found to notdeprive the other party of a fair trial. See Moore v. Centreville Township Hospital, 246 Ill.App. 3d 579, 588, 616 N.E.2d 1321, 1328 (1993), rev'd on other grounds, 158 Ill. 2d 543,634 N.E.2d 1102 (1994) (comments that counsel "fiddled with" the jury and put a lyingwitness on the stand); Lawing, 142 Ill. App. 3d at 125, 491 N.E.2d at 149 (personal attacksagainst the plaintiff's counsel and comments that counsel structured the testimony);Malatesta v. Leichter, 186 Ill. App. 3d 602, 625, 542 N.E.2d 768, 784 (1989) (numerouscomments, including the statement that the defendant "lied like a rug"). Similarly, in thiscase we do not find that the commentary was so inflammatory to warrant the reversal of thetrial court's determination that there was a fair trial.

Defendants contend that the court erred in barring the testimony of Mike Storeyregarding the condition of the brakes of Akers' vehicle. The court barred the testimony onthe ground of untimely disclosure. Defendants contend that the disclosure was not necessarybecause plaintiff never propounded to defendants any interrogatories requesting the subjectmatter of any witness testimony. The record is incomplete on the initial interrogatoriesserved upon defendants, and defendants failed to present a record of the interrogatories andanswers provided. See Buckholtz v. MacNeal Hospital, 313 Ill. App. 3d 521, 527, 729N.E.2d 949, 953 (2000). Despite the apparent incompleteness of the record, the materialbefore us indicates that exclusion was within the trial court's discretion because a casemanagement order required defendants to identify any opinion witness and make completeall discovery disclosures by a prior date.

Pursuant to Supreme Court Rule 218 (166 Ill. 2d R. 218), the trial court entered a casemanagement order, filling in dates on a standard form. The order read in part as follows:

"Discovery and depositions of the parties, fact witnesses[,] and the plaintiff'streating health care providers must be completed by April 1, 1999.

***

Defendant[s] will identify any examiner pursuant to Supreme Court Rule 215[(166 Ill. 2d R. 215)] or any other opinion witness by February 28, 1999[,] and makehim (or them) available for deposition by March 30, 1999."

On September 24, 1999, the court entered an order modifying the case management orderand allowing all defendants to supplement opinion witness disclosures up to October 1,1999. Prior to the deadlines, defendant Holland made the following disclosure of opinionwitnesses: "Mike Story [sic], John Story [sic], Rose Story [sic][,] and any other Storyland[sic] Mobile Home Sales or Carousel Building employees who may have relevantknowledge regarding the facts and circumstances concerning the accident of November 19,1999 [sic][,] may be called to testify to such facts and circumstances."

Although the parties disagree on the date that the supplemental disclosure was made,the parties agree that, within a week of the trial, defendants filed supplemental discoverynotifying plaintiff that Mike Storey had knowledge of Delbert Akers' failure to hook upelectronic brakes to the mobile home tote. Before any evidence was submitted to the jury,plaintiff moved to bar Mike Storey from testifying regarding the supplemental disclosure. In ruling on the motion, the judge stated: "We don't come up with material facts on the eveof a trial. No way. Both of you could have deposed him. He could testify as to what is inthe [r]ecord as to any statements made in the [r]ecord. He can certainly testify to that. Ifthere is any material change, I'm not going to allow it. Absolutely not."

The case management order required all parties to disclose all opinion witnesses andsupplement all discovery well in advance of the date the supplemental answer was filed. SeeLucht v. Stage 2, Inc., 239 Ill. App. 3d 679, 690, 606 N.E.2d 750, 758 (1992) (under formerSupreme Court Rule 220 (134 Ill. 2d R. 220), case management orders governed disclosureeven if no discovery requests were made); Department of Transportation v. Crull, 294 Ill.App. 3d 531, 538-39, 690 N.E.2d 143, 148 (1998) (revised rules support sanctions fordiscovery violations). Supreme Court Rule 218 provides that a conference will be heldshortly after the filing of a case to consider, among other issues, the "deadlines for thedisclosure of opinion witnesses and the completion of written discovery and depositions." 166 Ill. 2d R. 218(a)(5)(iii). The rule states: "The order controls the subsequent course ofthe action unless modified. All dates set for the disclosure of opinion witnesses and thecompletion of discovery shall be chosen to ensure that discovery will be completed not laterthan 60 days before the date on which the trial court reasonably anticipates the trial willcommence." 166 Ill. 2d R. 218(c). The parties were obligated to act in accordance with theplain language of the order, and the court had the authority to bar the witness due toHolland's failure to comply with the order. See 166 Ill. 2d R. 219(c)(iv).

The clear import of Rule 218, and the recent revisions to the discovery rules, is toavoid surprise. See Adami v. Belmonte, 302 Ill. App. 3d 17, 24, 704 N.E.2d 708, 713(1998). After the defendants presented an opinion witness disclosure in accordance with theorder but then submitted a supplemental discovery response at a date after the deadlines, thecourt could properly have seen defendants as violating the order and surprising plaintiff. The trial court was within its discretion in barring the testimony.

Defendants next contend that the court erred in excluding reference to depositiontestimony of plaintiff. Plaintiff's deposition contained the following exchange:

"Q. [Defense counsel:] Okay. What did Mr. Holland tell you at the emergencyroom?

A. My brother[-]in[-]law talked to him. As I recall, he said that he knew thewreck wasn't his fault. That it was the driver of the larger truck that caused theaccident.

Q. Did you-

A. I agreed; you know, I agree [sic] to that."

The trial court excluded reference to this statement on the grounds that it was hearsay anda legal conclusion. On appeal, defendants argue that the statement is an admission by wayof adoption and, therefore, should not be excluded as hearsay. See M. Graham, Cleary &Graham's Handbook of Illinois Evidence,