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Morgan v. Richardson
State: Illinois
Court: 5th District Appellate
Docket No: 5-01-0199 Rel
Case Date: 10/23/2003

NOTICE
Decision filed 10/23/03.  The text of this decision may be changed or corrected prior to the filing of a Petition for Rehearing or the disposition of the same.

NO. 5-01-0199

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT

___________________________________________________________________________

KEVIN WAYNE MORGAN, SR., 

          Plaintiff-Appellee,

and 

CHRISTINA L. MORGAN,

          Plaintiff and Counterdefendant-Appellee,

v.

WANDA RICHARDSON,

          Defendant and Counterplaintiff-Appellant.

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Appeal from the
Circuit Court of
Madison County.

 


No. 98-L-258


Honorable
George J. Moran,
Judge, presiding.

____________________________________________________________________________

PRESIDING JUSTICE HOPKINS delivered the opinion of the court:

The defendant, Wanda Richardson, appeals from jury verdicts after a jury trial ondamages only in the personal-injury action filed by the plaintiffs, Kevin and ChristinaMorgan. The cause of action arose as a result of an automobile accident on Route 159 inCollinsville, Illinois, on the evening of January 7, 1998. The plaintiffs were traveling southon Route 159, with Christina driving the car and Kevin riding in the front passenger seat. Route 159, at the point of the accident, was a three-lane highway, with a northbound lane,a southbound lane, and a middle, turn lane. As the plaintiffs neared the parking lot of theShop 'N Save on Route 159, Christina saw the defendant's car stopped at the exit, apparentlyin readiness to exit the parking lot and turn onto Route 159. Christina stated that she was notdriving fast because it was drizzling and the pavement was wet that evening. As Christinadrove past the defendant's vehicle, which Christina said was stopped "inches" from Route159, "out of the corner of [her] eye" she saw the defendant pull out of the exit. Thedefendant collided with the rear passenger side of Christina's car, forcing Christina's car outof the lane in which she had been driving.

After the accident, Christina and one of her two sons, who had been in the back seatof her car, went to the emergency room at Anderson Hospital. At the hospital, Christina wastreated for a knee injury and was released. Kevin did not go to the hospital at that time. However, the following day, Kevin woke up with pain in his lower back and with problemsambulating and urinating. Kevin went to the emergency room at Anderson Hospital at thattime. Kevin was subsequently treated by other medical providers, including Dr. Riaz Naseer,a neurologist, for his lower back pain. The plaintiffs filed their complaint for personalinjuries against the defendant on April 22, 1998.

The defendant answered the plaintiffs' complaint on August 3, 1998, and included acounterclaim against Christina for contribution. The defendant also raised the affirmativedefense of contributory negligence. In both the counterclaim and the affirmative defense,the defendant claimed that Christina had failed to decrease the speed of her vehicle and totake evasive action to avoid the collision, had driven her vehicle at a speed greater than wasreasonable for traffic conditions and the use of the roadway, had failed to keep her vehicleunder control, and had failed to keep a proper lookout for other vehicles on the roadway.

On August 7, 1998, the defendant served the plaintiffs with written interrogatories. In the interrogatories, the defendant asked that the plaintiffs supply, pursuant to SupremeCourt Rule 213(g) (177 Ill. 2d R. 213(g)), the name and address of each opinion witness theplaintiffs would be calling to testify, the subject matter of the opinion witness's testimony,and the opinion witness's conclusions and opinions and the basis therefor, including theopinion witness's reports, the opinion witness's qualifications, and the "identity of anywritten reports of the opinion witness regarding this occurrence." In response to this specificinterrogatory, the plaintiffs stated, "Unknown at present other than treating medicalpersonnel."

A letter sent from the plaintiffs' attorney to the defendant's attorney on April 23, 1999,reflected Kevin's medical bills incurred until that time; however, the plaintiffs' counsel statedthat Kevin was still undergoing treatment. Counsel's letter included a reference to a bill fromDr. Naseer. In Kevin's discovery deposition, taken on June 11, 1999, Kevin testified that hewas still treating with Dr. Naseer. On June 23, 1999, the defendant filed a subpoena ducestecum in which the defendant sought all of Kevin's medical records from Dr. Naseer. Thedefendant admitted that she received all of Dr. Naseer's records in July 1999.

On November 24, 1999, the plaintiffs' attorney sent another letter to defense counsel. The letter listed more bills relating to Kevin's treatment by Dr. Naseer. Dr. Naseer's evidencedeposition was taken on August 30, 2000. In the evidence deposition, the defendant madeobjections to several opinions given by Dr. Naseer. The defendant claimed that the opinionshad not been disclosed pursuant to Rule 213(g). The defendant moved in limine on thesecond day of the trial, December 12, 2000, for the exclusion of Dr. Naseer's opiniontestimony as presented in his evidence deposition. In her motion, the defendant alleged aSupreme Court Rule 213(g) violation. The motion was presented to the trial court threemonths after the disclosure of Dr. Naseer's opinions in his evidence deposition. Theevidence deposition of the defendant's opinion witness, Dr. Kenneth Rybicki, had been takenon October 3, 2000, after Dr. Naseer's deposition and more than two months prior to the trial.

On February 22, 2000, Christina moved for a summary judgment on liability on bothher complaint and the defendant's counterclaim. The trial court granted Christina's motionfor a summary judgment and ruled that the plaintiffs' claims would go to the jury on the issueof damages only.

At the jury trial on damages, Christina and Kevin testified. Dr. Naseer's evidencedeposition and Dr. Rybicki's evidence deposition were read to the jury. Dr. Naseer'stestimony established that Kevin's injuries from the January 1998 accident were alumbosacral strain and a bulging disc. Dr. Rybicki's testimony established that Kevin's injuryfrom the January 1998 accident was the lumbosacral strain only. Dr. Rybicki refused toconnect Kevin's bulging disc to the accident because Kevin had no magnetic resonanceimaging test (MRI) done prior to the accident to compare to the postaccident MRI. On thisbasis, Dr. Rybicki said that he could neither prove nor disprove whether Kevin's bulging discwas a preexisting condition or whether it was an injury resulting from the accident.

Following the trial, the jury returned a verdict for Kevin and awarded him $67,000in damages. The jury also returned a verdict in favor of Christina and awarded her $5,000in damages: $3,000 for the injury to her knee and $2,000 for property damage to her car. The defendant appeals.

ANALYSIS

The defendant first contends that the trial court abused its discretion in allowing Dr.Naseer to testify at the trial to opinions not previously disclosed pursuant to Rule 213(g). Thedefendant claims that Dr. Naseer's testimony regarding the causal relationship of Kevin'sinjuries to the accident, the need for certain medical tests for Kevin that were attributed tohis injuries from the accident, the effect of Kevin's injuries on his physical activities andemployment abilities, the permanency of the injury, Kevin's present and future pain andsuffering, and his need for future medical treatment was not disclosed by the plaintiffs inwritten interrogatories or supplemental answers, a violation of Rule 213(g). The defendantclaims that the testimony resulted in unfair surprise and prejudice to her.

Addressing the defendant's argument requires a two-part analysis: whether theplaintiffs complied with Rule 213(g) and, if not, whether a sanction was required. SeeWarrender v. Millsop, 304 Ill. App. 3d 260 (1999). Discovery rules are mandatory rules forthe parties to follow. Warrender, 304 Ill. App. 3d at 265. Rule 213(g) requires that, uponwritten interrogatory, a party must disclose the subject matter, conclusions, opinions,qualifications, and reports of an opinion witness. Warrender, 304 Ill. App. 3d at 265. Supreme Court Rule 213(i) (177 Ill. 2d R. 213(i)) provides that a party has a continuing dutyto supplement discovery responses. Warrender, 304 Ill. App. 3d at 265. However, at therelevant times Rule 213(i) also provided in part:

"If a deposition of an opinion witness is taken, the witness'[s] testimony at trialwill be limited to the opinion expressed therein, in addition to those opinionsidentified in answers to Rule 213(g) interrogatories." (Emphasis added.) 177 Ill. 2dR. 213(i).

A court's decision to impose sanctions for a discovery violation is within the sound discretionof the court. Warrender, 304 Ill. App. 3d at 268.

Here, the plaintiffs' opinion witness, Dr. Naseer, who is also Kevin's treatingphysician, disclosed in his evidence deposition the subject matter of his opinions, hisconclusions, and his qualifications. Dr. Naseer's deposition testimony was not expanded atthe trial. The plaintiffs' answers to the defendant's Rule 213(g) interrogatories stated thatKevin's treating physicians were the only opinion witnesses that he intended to call. Thedefendant learned that Dr. Naseer was a treating physician of Kevin's as early as April 1999. We find that Kevin seasonably supplemented his answer to the defendant's Rule 213(g)written interrogatories through Dr. Naseer's testimony in his evidence deposition and that noviolation of Rule 213(g) occurred. The trial court did not abuse its discretion in allowing Dr.Naseer's testimony at the trial.

The defendant next claims that the trial court erred when it granted the plaintiffs'motion for a summary judgment on liability. The defendant argues that the factualallegations asserted in her counterclaim and her affirmative defense raise genuine issues ofmaterial fact that should have been left for a determination by a jury. The plaintiffs, inaddition to asserting that the summary judgment had been properly entered by the court,claim that because the summary judgment on liability contained Supreme Court Rule 304(a)(155 Ill. 2d R. 304(a)) language, i.e., that there was no just reason for delaying theenforcement or appeal of the order, and because the defendant failed to file a notice of appealwithin 30 days of the entry of the summary judgment, the defendant has waived this issue.

While the plaintiffs have asserted the waiver rule for the failure to file a notice ofappeal, we note that the proper claim should be that this court has no jurisdiction because thenotice of appeal was not timely filed pursuant to Supreme Court Rule 303(a)(1) (155 Ill. 2dR. 303(a)(1)). The timely filing of a notice of appeal from a final judgment is jurisdictional. Gibson v. Belvidere National Bank & Trust Co., 326 Ill. App. 3d 45 (2001). Even when aparty does not challenge this court's jurisdiction, this court has an independent duty toconsider its jurisdiction before considering the merits of the case. Gibson, 326 Ill. App. 3dat 47-48. Because the plaintiffs have asserted the failure of the defendant to file a notice ofappeal within 30 days of the summary judgment, we first consider whether this court hasjurisdiction to consider this issue.

Section 2-1005 of the Civil Practice Law (735 ILCS 5/2-1005 (West 2000)) governssummary judgments. Subsection (c) states in pertinent part as follows:

"(c) *** A summary judgment, interlocutory in character, may be renderedon the issue of liability alone although there is a genuine issue as to the amount ofdamages." 735 ILCS 5/2-1005(c) (West 2000).

From the language of the statute, it is clear that a summary judgment on liability is a partialsummary judgment, interlocutory in nature, and not a final judgment. Lindsey v. ChicagoPark District, 134 Ill. App. 3d 744 (1985). Since the court's grant of the summary judgmenton liability was interlocutory, the summary judgment was not appealable without furtherleave of the appellate court even if the defendant had filed a notice of appeal under SupremeCourt Rule 303(a) (155 Ill. 2d R. 303(a)). While Rule 304(a) makes it possible to appealfrom an order that does not resolve an entire proceeding, if an express finding that there isno just reason to delay enforcement or appeal appears in the order, the mere inclusion of thislanguage does not make a nonfinal order final and appealable. Department of Public Aid exrel. K.W. v. Lekberg, 295 Ill. App. 3d 1067 (1998). Thus, because the summary judgmenton liability was not final and appealable until the judgment on damages was entered, thiscourt has jurisdiction to consider this issue.

A summary judgment can be properly entered only when the pleadings, depositions,admissions, and affidavits show that there is no genuine issue of any material fact and themovant is entitled to a judgment as a matter of law. Cozza v. Culinary Foods, Inc., 311 Ill.App. 3d 615 (2000). "Summary judgment is a drastic remedy to be granted only where themovant's right to it is clear and free from doubt." Cozza, 311 Ill. App. 3d at 619. Inreviewing a court's grant of a summary judgment, this court must construe the pleadings,admissions, depositions, and affidavits strictly against the movant and liberally in favor ofthe opponent of the motion. Cozza, 311 Ill. App. 3d at 619. Reasonable inferences drawnfrom the facts must be resolved in favor of the opponent of the motion. Cozza, 311 Ill. App.3d at 619. The standard of review for the propriety of a summary judgment is de novo. Cozza, 311 Ill. App. 3d at 620.

In the case sub judice, the defendant asserted conclusions that were unsubstantiatedby facts in her counterclaim or in her affirmative defense. She claimed that Christina hadfailed to keep a proper lookout, had failed to observe due care in approaching an intersection,and had failed to drive as a prudent person would to avoid a collision when, by the exerciseof reasonable care, Christina could have discovered danger. The defendant also argues thatthere was a genuine issue of material fact on the question of whether Christina could havetaken an evasive maneuver to avoid colliding with the defendant.

The defendant is correct that even though Christina was a driver on a preferential roadwith the right-of-way, such a driver may not proceed into obvious danger. Johnson v. May,223 Ill. App. 3d 477 (1992). However, our review of the documents filed with the motionfor a summary judgment, i.e., portions of Christina's, Kevin's, and the defendant's discoverydepositions, establishes that Christina could have taken no action to avoid the collision withthe defendant. Christina was already driving past the defendant when the defendant droveinto the side of Christina's car. Because of weather conditions, Christina was driving slowerthan the speed limit. There is no evidence provided that Christina could have kept a betterlookout. The defendant admitted in her discovery deposition that there was nothing Christinacould have done to avoid the accident. When all the evidence is considered in the light mostfavorable to the defendant, there is no genuine issue of material fact regarding the defendant'sliability. Further, no reasonable inferences could be construed in the defendant's favor. Thetrial court's grant of a partial summary judgment on liability in the plaintiffs' cause of actionand on the defendant's counterclaim and affirmative defense was proper.

The defendant's third issue is that the trial court abused its discretion when it deniedher motion for a mistrial, following allegedly improper remarks by the plaintiffs' counsel inopening statements. The remarks concerned settlement negotiations. The defendant claimsthat she was prejudiced by the remarks made by counsel.

Ordinarily, remarks regarding settlement negotiations are not admissible. Sawicki v.Kim, 112 Ill. App. 3d 641 (1983). Remarks concerning settlement are discouraged becausethey might be construed as admissions of liability and because public policy favorscompromise. In re Marriage of Passiales, 144 Ill. App. 3d 629 (1986). Whether remarksin opening statements were prejudicial is a matter of discretion left to the trial court, and acourt's ruling will not be overturned on review unless it is an abuse of discretion. Sawicki,112 Ill. App. 3d at 645. However, if an error did not affect the outcome of a trial or if a courtcan see from the entire record that no injury has been done, a court will not disturb ajudgment entered at the trial level. Niehuss v. Merrill Lynch, Pierce, Fenner, & Smith, Inc.,143 Ill. App. 3d 444 (1986).

The specific remarks in the plaintiffs' opening statement to which the defendant takesexception are as follows:

"I want to say first of all we're not here because we want to be. We're herebecause it's a last resort. All the-all the attempts of resolving-"

At this point, the defendant objected. The trial court sustained the objection, and no furtherstatements were made regarding settlement negotiations. The defendant moved for a mistrialimmediately after the court had sustained her objection, but the trial court denied thedefendant's motion.

We find that there was no abuse of discretion by the trial court. The plaintiffs'statements, while conceivably statements of settlement negotiations, were vague, becausefacts concerning who offered to settle and for what amount were not before the jury. Further, the trial court immediately sustained the defendant's objections, ostensibly curingthe error. Additionally, the jury already knew that the defendant was liable, because the juryhad been instructed that the trial was for damages only. Under these circumstances, wecannot determine that the outcome of the trial would have been different, and we canperceive no injury to the defendant. Therefore, if there was error, it was harmless.

The defendant's last issue is stated as follows:

"The trial court committed reversible error in failing to enforce its own order grantingDefendant's motion in limine regarding the financial condition of Plaintiffs,effectively allowing Plaintiffs to give repeated improper and inflammatory testimonyconcerning their alleged impoverished condition."

The defendant's statement of this issue appears to be that the plaintiffs violated the court'sorder granting the defendant's motion in limine concerning evidence of the plaintiffs'financial condition. However, the defendant's argument does not follow this issue. Thedefendant argues that the admission of the evidence of the plaintiffs' financial condition wasreversible error, not that the introduction of the evidence violated a motion in limine. Thedefendant's citation to authorities coincides with her argument that the evidence wasinadmissible. The defendant fails to cite any relevant authority concerning evidenceadmitted in violation of a motion in limine; thus, the defendant has violated Supreme CourtRule 341(e)(7) (Official Reports Advance Sheet No. 21 (October 17, 2001), R. 341(e)(7),effective October 1, 2001). The failure to cite relevant authority results in a waiver of theissue. Hills v. Bridgeview Little League Ass'n, 195 Ill. 2d 210 (2000).

The defendant has also waived this issue for another reason. The defendant raisedthis matter in her motion in limine; however, from the court's discussion of this issue at thetrial, it appears that the trial court agreed to allow certain testimony of the plaintiffs' financialcondition but not all. The record is unclear on what the plaintiffs could and could not testifyto concerning their financial condition. Because of the lack of clarity on this issue, it wasincumbent for the defendant to object to the evidence of the plaintiffs' financial condition asit was presented at the trial. The defendant did not object to any of the evidence presentedduring the testimony. Further, the defendant did not raise this issue, either regarding thealleged motion in limine violation or regarding the admission of the evidence generally, inher posttrial motion. The failure to object at the trial and to raise the issue in a posttrialmotion waives the issue. Limanowski v. Ashland Oil Co., 275 Ill. App. 3d 115 (1995).

CONCLUSION

For the foregoing reasons, the judgment of the circuit court of Madison County isaffirmed.

Affirmed.

MAAG and CHAPMAN, JJ., concur.

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