Longstreet v. Cottrell, Inc.

SUPREME COURT CASES

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State: Illinois

Court: 5th District Appellate

Docket No: 5-06-0316 Rel

Case Date: 05/17/2007

Preview:NO. 5-06-0316
NOTICE Decision filed 05/17/07. The text of this decision may be changed or corrected prior to the filing of a Peti tion for Rehearing or th e

IN THE APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT ________________________________________________________________________ JEAN LONGSTREET, Individually and Special Administrator of the Estate of James Longstreet, Plaintiff-Appellant, v. COTTRELL, INC., LISA SHASHEK, CASSENS & SONS, INC., CASSENS CORPORATION, GENERAL MOTORS) CORPORATION, and Unknown Defendants, ) ) ) ) ) ) ) ) ) ) Appeal from the Circuit Court of Madison County.

disposition of the same.

No. 03-L-35

) ) Honorable ) A. A. Matoesian, Defendants-Appellees. ) Judge, presiding. ________________________________________________________________________ JUSTICE CHAPMAN delivered the opinion of the court: We granted the plaintiff's Supreme Court Rule 308 (155 Ill. 2d R. 308) application for leave to appeal on July 28, 2006. The basis of that application was the trial court's June 16, 2006, order granting Cottrell, Inc.'s motion to bar the use of James Longstreet's discovery deposition as evidence at a trial. All the defendants joined in this motion. We affirm. James Longstreet was employed as a truck driver hauling cars for a Missouri-based employer. At the time of his alleged injuries, he was operating a rig1 believed to have been manufactured by Cottrell, Inc. (Cottrell). James Longstreet alleged that on several dates extending from 2001 through 2003, he had sustained bodily injuries as a result of incidents
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We use the term "rig," which is used by the plaintiff in her complaint. The plaintiff

does not seem to distinguish it from a tractor or a trailer, but she uses the term "rig" in place of any combination of the individual terms, tractor and/or trailer. 1

with the rig's ratchet system in which chains broke. He also claimed that during the same time frame, he slipped on the rigs while performing his job duties, sustaining alleged injuries. According to the Longstreets' complaint, all the defendants maintained some relationship to the rigs in question on the dates of the alleged accidents. Jean Longstreet filed claims against all the defendants for a loss of consortium. Discovery in this case began. On October 27, 2004, James Longstreet gave his discovery deposition. James Longstreet developed cancer. The date on which he and his attorneys became aware of the cancer is not indicated in the record. On May 26, 2005, James Longstreet succumbed to the cancer and died. Thereafter, his attorneys filed a suggestion of death and sought to have Jean Longstreet substituted as the plaintiff in her capacity as the administrator of her deceased husband's estate. Approximately one year later, Cottrell filed its motion to bar the use of James Longstreet's discovery deposition. In the motion Cottrell's attorney stated that it was "believed that Plaintiff will attempt to use the discovery deposition of Mr. Longstreet as an evidence deposition in this litigation." After a lengthy hearing on this motion, the trial court concluded on June 16, 2006, that the motion should be granted. At the request of counsel for Jean Longstreet, the trial court certified the question pursuant to Supreme Court Rule 308 as involving a question of law about which there is a substantial basis for a difference of opinion. Upon application to this court, on July 28, 2006, we granted Jean Longstreet's request for leave to appeal pursuant to Supreme Court Rule 308. The certified question is as follows: "Whether the Estate of a deceased party can introduce the discovery deposition of the deceased party as evidence at trial as an exception to the hearsay rule under Illinois S. Ct. Rule 212(a)(3) in light of the language in Illinois Supreme Court Rule 212(a)(5)."

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We are asked to review and interpret a supreme court rule, and thus our review is de novo (In re Estate of Rennick , 181 Ill. 2d 395, 401, 692 N.E.2d 1150, 1154 (1998)). On appeal, the goal of the court is to interpret the rule by ascertaining and giving effect to the drafter's intentions. In re Estate of Rennick , 181 Ill. 2d at 404-05, 692 N.E.2d at 1155. Although a supreme court rule is not a statute enacted by the Illinois legislature, the interpretation of a rule should follow the same guidelines as statutory interpretation (In re Estate of Rennick, 181 Ill. 2d at 404, 692 N.E.2d at 1155), in that each section must be construed consistently with the other sections and subsections ( Bonaguro v. County Officers Electoral Board , 158 Ill. 2d 391, 397, 634 N.E.2d 712, 714 (1994)). Furthermore, the words utilized by the Illinois Supreme Court should be given their plain, ordinary, and popularly understood meanings, as are the words utilized in statutory sections. See Nix v. Whitehead, 368 Ill. App. 3d 1, 5, 856 N.E.2d 1111, 1115 (2006). Supreme Court Rule 212(a)(5) provides: "(a) *** Discovery depositions taken under the provision of this rule may be used only: *** (5) upon reasonable notice to all parties, as evidence at trial or hearing against a party who appeared at the deposition or was given proper notice thereof, if the court finds that the deponent is neither a controlled expert witness nor a party, the deponent's evidence deposition has not been taken, and the deponent is unable to attend or testify because of death or infirmity, and if the court, based on its sound discretion, further finds such evidence at trial or hearing will do substantial justice between or among the parties." 210 Ill. 2d R. 212(a)(5). Neither side disputes that this portion of Supreme Court Rule 212 would absolutely bar the

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use of James Longstreet's discovery deposition, because he was a party to the case. Jean Longstreet contends that each subparagraph of Supreme Court Rule 212(a) can be read in isolation, and not conjunctively. Utilizing this theory, Jean argues that Supreme Court Rule 212(a)(3) (210 Ill. 2d R. 212(a)(3)) would allow the use of her husband's discovery deposition testimony. Rule 212(a)(3) states as follows: "(a) *** Discovery depositions taken under the provision of this rule may be used only: *** (3) if otherwise admissible as an exception to the hearsay rule[.]" 210 Ill. 2d R. 212(a)(3). The grammatical conjunction connecting the five subparagraphs of Supreme Court Rule 212(a) is the word "or," and the use of that word could theoretically support Jean Longstreet's contention that each subparagraph operates independently so that if the deposition was admissible under subparagraph (3), the prohibition of subparagraph (5) would be irrelevant. Jean Longstreet specifically contends that her husband's discovery deposition would qualify as former testimony. She correctly states that Illinois has adopted the formertestimony exception to the hearsay rule. See Wilkerson v. Pittsburgh Corning Corp. , 276 Ill. App. 3d 1023, 659 N.E.2d 979 (1995). Generally speaking, under this hearsay exception, earlier testimony can be admitted into evidence if the proponent of that testimony can show that the witness is unavailable and the witness was the subject of competent crossexamination in that prior testimony. See Wilkerson, 276 Ill. App. 3d at 1035, 659 N.E.2d at 987. Arguing that her husband's death naturally establishes his unavailability and that, in taking his deposition, the defendants competently cross-examined him, she contends that the use of his discovery deposition at the trial would meet the exception's requirements.

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Jean Longstreet further contends that the supreme court prohibition against the use of a deceased party's discovery deposition in Rule 212(a)(5) would not be rendered pointless by an application of the former-testimony hearsay exception in this case. She argues that the former-testimony exception mandates a finding that the cross-examination of the decedent was competent. She essentially claims that the former-testimony exception to the hearsay rule is not independent of Rule 212(a)(5). In other words, Jean contends that Rule 212(a)(5) only prohibits the use of a deceased party's discovery deposition if it can be shown that the opponents did not have the opportunity to competently cross-examine the decedent during that deposition. Although this language is not expressly contained within Rule 212(a)(5), Jean urges us to conclude that so long as the defendants satisfied this unwritten "competent cross-examination" rule, the prohibition as stated in the rule would not operate to bar this deposition testimony. While we follow this argument, we remain unconvinced that the Illinois Supreme Court contemplated this exception to the prohibition of the use of a deceased party's discovery deposition. As said previously, the most reliable indicator of the intent of the court is found in the wording used in the rule with its ordinary meaning. Nix , 368 Ill. App. 3d at 5, 856 N.E.2d at 1115. Supreme Court Rule 212(a)(5) very clearly, and without

qualification, excludes the use of a deceased party's discovery deposition. We find further support for the prohibition of Rule 212(a)(5) in Supreme Court Rule 212(b)(1) (210 Ill. 2d R. 212(b)(1)), which provides a means by which a deceased party's evidence deposition can be introduced into evidence. That rule states, "All or any part of *** evidence depositions may be used for any purpose for which a discovery deposition may be used, and may be used by any party for any purpose if the court finds that at the time of the trial *** the deponent is dead ***." 210 Ill. 2d R. 212(b)(1). An inference raised by this rule is that only the evidence deposition of a party is allowable in the situation arising from

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the party's death. In dicta , the Fourth District of the Illinois Appellate Court concluded that this was correct, declining to recognize any possibility that Supreme Court Rule 212(a)(3) would sanction the use of a deceased party's discovery deposition. Overcast v. Bodart , 266 Ill. App. 3d 428, 433, 639 N.E.2d 984, 987 (1994). 2 In support of her position, Jean Longstreet cites numerous cases. None of these cases are on point for the theory she advances. See People v. Hansen , 352 Ill. App. 3d 40, 815 N.E.2d 848 (2004) (involving former testimony given at an evidentiary hearing on the defendant's postconviction petition

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