text:
    ROBERT E. BYRNES, Plaintiff-Appellant, v. PAUL FISCELLA et al., Defendants-Appellees.
    First District (6th Division)
    No. 1 — 90—1341
    Opinion filed August 2, 1991.

      O’Shea & Quan, of Forest Park (John J. Quan, of counsel), for appellant.
    Wildman, Harrold, Allen & Dixon, of Chicago (Helaine Wachs Heydemann and Ruth E. VanDemark, of counsel), for appellees.
   PRESIDING JUSTICE RAKOWSKI

delivered the opinion of the court:

Plaintiff-appellant Robert E. Byrnes appeals from both the entry of summary judgment against him and in favor of defendants-appellees Dr. Paul Fiscella and Dr. E. J. McLeod and the imposition and failure to vacate a discovery sanction limiting plaintiff to one named expert witness. Plaintiff’s complaint alleged medical negligence on the part of defendants. We affirm both the granting of summary judgment and the imposition of and refusal to vacate the discovery sanction. As the disposition of this appeal turns on the particular facts, a somewhat lengthy recitation is necessary.

Plaintiff filed suit against defendants, as well as against Dr. Eugene Dolehide (individually and doing business as Medicine and Surgery S.C.) and the Sisters of St. Mary as the owner of St. Francis Hospital. In count I of his complaint, plaintiff alleged that he suffered from diabetes-mellitus, which Dr. Dolehide had treated since prior to 1981. In 1983, Dolehide treated a sore on plaintiff’s left foot. In January of 1984, plaintiff was referred to defendant McLeod, a podiatrist. According to the complaint, defendant was treated by an agent of McLeod, defendant Fiscella, on January 12, 1984, and January 21, 1984. Plaintiff alleged that Fiscella was negligent in that Fiscella “treated plaintiff’s left foot *** leaving the contaminated foot open and using the same instrument as used on the contaminated left foot opened [on] plaintiff’s right toe.” Resultingly, according to plaintiff, his right big toe became infected and ultimately had to be amputated.

Count II of plaintiff’s original complaint against defendants was based on a theory of res ipsa loquitur. Counts III and IV were against codefendants Dolehide and the hospital. In January of 1986, Judge Odas Nicholson dismissed count II of the original complaint, the res ipsa loquitur count. Plaintiff was given leave to file an amended complaint by February 26, 1986. At a motion for sanctions hearing on March 31, 1988, plaintiff sought and obtained leave to file an amended complaint, which plaintiff did, essentially realleging counts I, III and IV of the original complaint. Additionally, the amended complaint alleged:

“[T]he plaintiff has received and in the future will continue to receive medical and hospital care and treatment furnished by the United States of America. The plaintiff, for the sole use and benefit of the United States of America under provisions of 42 United States Code 2651 — 2653, and with its express consent, asserts a claim for the reasonable value of said past and future care and treatment.”

After defendant Fiscella appeared and answered, he served plaintiff with interrogatories and a Rule 214 (107 Ill. 2d R. 214) notice. On December 6, 1985, the case appeared at the progress call. Judge Thomas E. Hoffman entered an order directing plaintiff to respond to all written discovery within 28 days. According to defendants, Fiscella’s interrogatories were never answered. (Plaintiff has, however, supplemented the record with a file-stamped, though unsigned, copy of answers to Fiscella’s interrogatories.) In response to a like interrogatory from a codefendant, plaintiff answered on January 17, 1986 (42 days after the entry of the order by Judge Hoffman), that at the present, plaintiff did not have a medical expert, but that at the time investigation continued. (The unsigned answer to Fiscella’s interrogatories contains the same answer.)

On January 30, 1987, plaintiff appeared for his deposition. The most pertinent information from the deposition for the purposes of resolving the issues confronting this court is that plaintiff testified, consistent with his theory of negligence, that Fiscella scraped his right toe with the same instrument that Fiscella had used to treat plaintiff’s left foot. Plaintiff also indicated that Dr. Dolehide, when plaintiff subsequently spoke with Dolehide, thought that the left foot had been infected at the time Fiscella treated plaintiff’s feet.

On June 10, 1987, Judge John T. Keleher entered a discovery supervision order setting a final pretrial date for June 9, 1988. Judge Keleher at this time ordered that all written discovery be completed by August 31, 1987, and that the depositions of the parties experts and nonexperts was to be completed by October 15, 1987. Plaintiff was ordered to identify his “testifying expert witnesses” by November 30, 1987, and the deposition of plaintiff’s testifying expert was to take place by January 31, 1988. Defendants were to disclose their testifying experts by March 15, 1988. Discovery was to be completed by May 31,1988.

Defendant Fiscella served plaintiff’s attorney with Rule 220 interrogatories on December 3, 1987. A pretrial was held on December 2, 1988, at which time Judge Keleher entered another discovery order. This order (1) required plaintiff to identify his “expert witness within 90 days and [to] produce same before the next pretrial,” (2) suspended defendants’ discovery schedule “in regard to expert testimony,” (3) entered and continued a motion to dismiss until the next pretrial, (4) continued the pretrial until June 9, 1989, and (5) granted defendants leave to present the motion to dismiss on an emergency basis at any time “if plaintiff fails to comply with this order.”

On March 13, 1989, the hospital noticed a motion to dismiss for March 28, 1989, before Judge Myron T. Gomberg. The motion reiterated the terms of the December 2, 1988, discovery order, alleging plaintiff’s noncompliance with same. At the hearing on March 28, 1989, plaintiff was given leave to file responses to the motions instanter, and in response to the motions, plaintiff stated that plaintiff’s counsel had been in communication with the Veterans Administration CVA) attorneys with regards to procuring an expert. Plaintiff advised the court of the quid pro quo regarding the government’s claim between plaintiff and the government, namely that plaintiff’s counsel would provide legal representation and that the YA would provide an expert witness. Plaintiff told the court that an expert’s deposition could be scheduled within two weeks, and Judge Gomberg ordered the matter continued to April 11, 1989, ordering the parties, as well as a YA attorney to whom plaintiff’s counsel had spoken to appear.

The hearing on the 11th of April occurred before Judge Michael Zissman. There, a YA attorney, Christopher Ingram, told the court that plaintiff had been provided with the name of a doctor plaintiff could contact, and that within 30 to 45 days experts could be provided plaintiff. Plaintiff’s counsel advised the court that he had been supplied the name of one doctor and that he expected to be provided the names of other experts, whom plaintiff would contact, within the week. Judge Zissman then entered the following order:

“Plaintiff is given a FINAL EXTENSION of time to disclose all experts and Answer Rule 220 Interrogatories as to all experts, to 56 days, to and including June 6, 1989. It is further ordered that defendants^] motions are continued for compliance hearing to June 9, 1989 at 2:30 p.m. without further notice.” (Emphasis in original.)

Next, on June 9, 1989, Judge Gomberg presided at the hearing on the continued motions, as well as on a motion for summary judgment the hospital had filed. Plaintiff had not complied with the April 11, 1989, order to disclose his expert. Plaintiff’s counsel advised the court that he had spoken to one expert the YA had provided, and a meeting was set with that expert the next week. The other YA doctors had not been produced. Plaintiff’s counsel also noted that he was trying to withdraw from the case for health reasons (although plaintiffs counsel never did and in fact continues to represent plaintiff on appeal), that plaintiff was going to employ a private expert, and that plaintiff was requesting “as much time as humanly possible.”

Judge Gomberg ruled that he would give the plaintiff “one more time,” but that sanctions would be appropriate. Under Rules 219 (c)(ii), (cXiii), (c)(iv) (107 Ill. 2d Rules 219 (c)(ii), (c)(iii), (c)(iv)), Judge Gomberg ordered that plaintiff be barred from filing any pleading, maintaining any claim, or presenting a witness relating to the issue to which his failure to name an expert related. The matter was again continued to June 16, 1989, “to determine whether plaintiff is in a position to name an expert.”

On June 16, 1989, plaintiffs counsel stated that he had met with Dr. Rubinstein at the YA Hospital and had tendered Dr. Rubinstein’s name to defendants. Plaintiff’s counsel promised that Rule 220 (107 Ill. 2d R. 220) interrogatories would be answered and Rubinstein’s deposition would be taken within three weeks. Once again, an order was entered continuing the matter. Plaintiff was given until June 30, 1989, to file answers to the Rule 220s and comply with other outstanding production requests. At the close of the hearing, the hospital’s attorney requested that plaintiff be limited to Dr. Rubinstein as an expert witness, and the court indicated that this should be so and that this should be included in the order. Plaintiff’s counsel did not object to this ruling. The order, which was prepared by Dr. Fiscella’s counsel, did not, however, include this limiting directive. The matter was put over until July 7 for the purpose of further monitoring plaintiff’s compliance.

On July 7, 1989, plaintiff filed his answers to the hospital’s supplemental interrogatories. In response to the interrogatory pertaining to the expert retained to render an opinion at trial, plaintiff averred that none had been retained at the time. The answer indicated that Dr. David Rubinstein from the "VA had orally agreed to render an opinion at trial. In response to the interrogatory asking for plaintiff’s expert’s opinions and conclusions, plaintiff averred:

“Plaintiff does not have a written report from Dr. Rubinstein. The undersigned [plaintiff’s attorney] on information and belief states that based on Dr. Rubinstein’s training and experience and Dr. Rubinstein’s review of the Plaintiff’s deposition, that the treatment afforded Plaintiff by Dr. Fiscella might have or could have caused the condition that resulted in the amputation of the toe.”

Plaintiff further stated in answer to interrogatory that he learned of the substance of Dr. Rubinstein’s opinion on June 13, 1989.

Judge Thomas Quinn presided at the compliance hearing on July 7, 1989. Plaintiff’s attorney argued that Dr. Rubinstein was not a retained expert and therefore not subject to Rule 220 requirements. Plaintiff’s attorney further indicated that he had not spoken to Dr. Rubinstein since June 13 and had not obtained a written report from him. Judge Quinn struck the answer to interrogatory which stated Dr. Rubinstein’s opinion and told plaintiff “I can still require you to submit proper answers to 220 interrogatories, and if [Dr. Rubinstein] is not going to cooperate in that regard, you’ve got to get another expert.” Plaintiff was then given an additional 25 days to file an amended answer to interrogatory and the matter was continued until August 4, 1989.

Plaintiff answered the interrogatory of the hospital relating to Rubinstein’s opinions and conclusions with respect to whether the standard of care had been deviated from. The answer, signed and attested to by Dr. Rubinstein, read as follows:

“I have reviewed the Deposition of the Plaintiff Robert E. Byrnes. According to Mr. Byrnes following treatment on the great right toe by Dr. Fiscella, suffered pain, bleeding, discharge, swelling and discoloration of his great right toe. The Plaintiff’s toe had been bandaged by Dr. Fiscella on January 21, 1984, following the scraping and buffing of a callous under his toe. These symptoms indicate that the circulation of blood to said toe may have been cut off which could lead to gangrene.
It is my opinion that assuming the truth of the foregoing facts by Mr. Byrnes that Dr. Fiscella’s bandaging of the right great toe may have been excessively tight causing the loss of circulation to that area and resulting in the subsequent infection/gangrene in the great right toe.”

Next, Judge Angelo D. Mistretta presided at the August 4, 1989, compliance hearing. The history of the discovery-taking in the case was recounted for Judge Mistretta. Plaintiff’s counsel recounted his difficulty with the “great bureaucracy” of the Veterans Administration and requested more time to get a different expert. Judge Mistretta, however, ordered that plaintiff be limited to Dr. Rubinstein as his expert and ordered that plaintiff produce Dr. Rubinstein for deposition before August 25, 1989. While plaintiff’s counsel asked for more time early in the hearing, he did not object to the entry of the order limiting plaintiff to the use of Dr. Rubinstein. Status was set for September 15, 1989.

Rubinstein’s deposition was taken on August 29, 1989. He testified that he was first contacted with respect to the instant case in April or May of 1989. After reviewing the file, Rubinstein was told that he might be called to testify in the lawsuit. Rubinstein also reviewed St. Francis hospital records pertaining to plaintiff’s case. Rubinstein was not given the records of the defendant-doctors to review, however. Rubinstein confirmed that the supplemental interrogatory answer contained his opinions in the case, based solely on plaintiff’s deposition. Dr. Rubinstein further testified that it was “possible”— and not “more probably true than not” — that Dr. Fiscella’s bandaging of plaintiff’s toe may have cut off the circulation to the toe and led to gangrene. Plaintiff’s gangrene could have been caused by diabetes that was out of control or possibly poor foot hygiene. Observing that it was “too speculative,” Rubinstein specifically denied that it was his opinion to a reasonable degree of medical and podiatric certainty that circulation or circulatory problems caused or contributed to plaintiff’s gangrene.

On September 15, 1989, Judge Thomas Quinn entered and continued the still-pending motion of the hospital to dismiss and Dr. Fiscella’s motion for sanctions. Judge Quinn observed that, “If plaintiff seeks to utilize another expert, plaintiff must vacate the order of August 4, 1989[,] limiting plaintiff to one expert, Dr. Rubinstein[,] by October 25, 1989.”

On September 21, 1989, Dr. Rubinstein’s deposition was resumed. At this time, Rubinstein testified that he did not believe that the buffing of plaintiff’s toe could lead to infection. Rubinstein further stated that he would not consider using the same instrument on the left foot and then right foot a deviation from the standard of care. Rubinstein also indicated that it was too speculative to say that using the same instrument on both feet caused the infection of the right toe. Rubinstein further testified that he could not state to a reasonable degree of podiatric certainty that the big toe was too tightly wrapped. Rubinstein further stated about Dr. Fiscella’s care of plaintiff, “In my opinion, I cannot say that Dr. Fiscella was negligent in his care of [plaintiff”

Dr. Fiscella filed a motion for summary judgment on October 25, 1989. Plaintiff’s attorney acknowledged that he had not had the order of Judge Mistretta limiting plaintiff to Dr. Rubinstein as an expert vacated. Judge Quinn granted the hospital’s summary judgment motion. Also, Dr. McLeod was allowed to join in Dr. Fiscella’s motion for summary judgment, and the motions were briefed. During the briefing time, on November 13, 1989, plaintiff was granted leave to take Dr. Fiscella’s deposition within 30 days.

Defendant Fiscella’s deposition was taken on December 18, 1989. The pertinent testimony from that deposition is that while Fiscella would consider it a deviation from the standard of care to use the same instrument on a different foot as had been used on an infected foot, Fiscella denied that plaintiff’s left foot was infected when plaintiff was treated. Fiscella did acknowledge that he had used the same instrument on both feet.

The hearing on defendants’ motion for summary judgment was initially scheduled for March 6, 1990. At that time, plaintiff’s counsel informed Judge Quinn that he had attempted to see Judge Mistretta about having the limiting order vacated, but that Judge Mistretta would not be able to hear the motion until March 26, 1990. Plaintiff’s counsel also indicated that he had spoken to a doctor who was willing to testify that plaintiff’s foot was infected. Plaintiff’s counsel indicated that the question was whether the infection was within the realm of common knowledge or not. Judge Quinn continued the matter until April 9, 1990.

On March 9, 1990, plaintiff served the parties with a motion to vacate the limiting order. In the motion, plaintiff stated that Dr. William F. Walsh, a doctor unconnected with the VA, had “orally advised [plaintiff’s counsel] that plaintiff, according to the medical records had an infected left toe and that utilizing a scalpel on the infected toe and another area would be medical malpractice.” On March 26, Judge Mistretta denied plaintiff’s motion to vacate. The next day, plaintiff filed a motion to reconsider the denial of the motion to vacate. This time, plaintiff supported the motion with an affidavit of Dr. Walsh. The Walsh affidavit averred that Dr. Fiscella’s debriding of the infected left foot and the noninfected right foot caused the infection of plaintiff’s right great toe, which resulted in the subsequent amputation of the toe. On April 2, 1990, Judge Mistretta entered an order denying plaintiff’s motion to reconsider the denial of plaintiff’s motion to vacate.

On April 9, 1990, Judge Quinn, refused to vacate, according to him, “an order Judge Mistretta refused to vacate on two occasions.” Likewise, he refused to consider the Walsh affidavit, as plaintiff had been limited to Dr. Rubinstein as an expert. Judge Quinn then granted defendants’ motion for summary judgment, noting that the statements of Dr. Dolehide suggesting infection were hearsay, and that even if such statements were considered, plaintiff had failed to establish that Dr. Fiscella’s alleged use of the scalpel caused plaintiff injury and the resultant amputation of the toe.

The first issue we address is whether the trial court abused its discretion in imposing the Rule 220 sanction limiting plaintiff to Dr. Rubinstein as an expert witness.

Supreme Court Rule 220(b)(1) provides in relevant part:

“[T]he identity of an expert who is retained to render an opinion at trial on behalf of a party must be disclosed by that party either within 90 days after the substance of the expert’s opinion first becomes known to that party or his counsel or, if the substance of the expert’s opinion is then known, at the first pretrial conference in the case, whichever is later. In any event, as to all expert witnesses not previously disclosed, the trial court, on its own motion, or on the motion of any party after the first pretrial conference, shall enter an order scheduling the dates upon which all expert witnesses, including rebuttal experts, shall be disclosed. *** All dates set by the trial court shall be chosen to ensure that discovery regarding such expert witnesses will be completed not later than 60 days before the trial will commence. *** Failure to make the disclosure required by this rule or to comply with the discovery contemplated herein will result in disqualification of the expert as a witness.” 107 Ill. 2d R. 220(b).

The court in Mitchell v. Wayne Corp. (1989), 180 Ill. App. 3d 796, 800-01, 523 N.E.2d 241, observed:

“The purpose of Rule 220 is to facilitate trial preparation by eliminating last-minute disclosure of expert witnesses. [Citation.] The reason for Rule 220 is that adequate trial preparation requires timely disclosure of expert witnesses. Time is needed prior to trial to investigate and discuss the substance of the testimony of an opponent’s expert with one’s own experts in order to prepare for cross-examination. [Citation.] Rule 220 was therefore adopted in an attempt to establish a uniform, but not inflexible, framework for the timely revelation of the identity of expert witnesses and the subject matter of their testimony. [Citation.] The rule authorizes the establishment of deadlines and requires that the parties act in good faith to ascertain the identity of expert witnesses they reasonably anticipate using. [Citations.]”

The use of discovery sanctions as a general deterrent “provides a strong incentive for all litigants to fully and accurately comply with discovery rules.” (Mitchell, 180 Ill. App. 3d at 802.) The decision to impose sanctions under Rule 220 is within the sound discretion of the trial judge and will not be interfered with absent a clear showing of abuse. Castro v. South Chicago Community Hospital (1988), 166 Ill. App. 3d 479, 482, 519 N.E.2d 1069.

In this case, Judge Angelo Mistretta entered the order which limited plaintiff to Dr. Rubinstein as an expert witness after Rubinstein had been disclosed to defendants. Judge Gomberg had previously indicated, on June 16, 1989, that plaintiff should be limited to Dr. Rubinstein due to plaintiff’s repeated violation of discovery orders, although this had not been included in the written order at that time. Plaintiff argues that both the imposition of the sanction in the first instance and Judge Mistretta’s refusal to vacate or modify the imposition of the sanction were abuses of discretion. Plaintiff argues that his previous noncompliance with court directives to disclose her expert witness was “not unreasonable.” Specifically, plaintiff argues that his failure to comply with court orders was understandable, and justifiable, due to plaintiff’s reliance on the YA that the YA would supply an adequate expert(s). Plaintiff emphasizes that he had no control over the VA’s procurement of experts, and notes that the case was not particularly close to going to trial.

In support of his claim that he had a legitimate reason for his noncompliance, plaintiff cites Vortanz v. Elmhurst Memorial Hospital (1989), 179 Ill. App. 3d 584, 534 N.E.2d 625. In Vortanz, a case involving Supreme Court Rule 219(c), the trial court dismissed plaintiff’s case for plaintiff’s failure to comply with discovery orders. Here, of course, the sanction only limited plaintiff to his disclosed expert. The sanction here was less drastic than the sanction imposed in Vortanz, and in this case the substance of Dr. Rubinstein’s testimony was not known when the limiting sanction was imposed, as Rubinstein’s deposition had not been taken. The most severe nature of the sanction was noted in Vortanz. (179 Ill. App. 3d at 590 (“[S]ince the striking of pleadings and entry of judgment against a party as a result of the violation of a discovery rule or order is the most severe sanction that a court can impose pursuant to Rule 219(c), it is only appropriate in those instances where the conduct of the offending party shows a deliberate, contumacious, or unwarranted disregard for the court’s authority”).) Moreover, in Vortanz, the court held that the dismissal order was void for lack of notice to plaintiff (179 Ill. App. 3d at 589), and the court held that plaintiff established the existence of a legitimate excuse for the violation of the order, which in Vortanz was the nonappearance at a single deposition. (179 Ill. App. 3d at 591.) Here, plaintiff had violated numerous orders requiring disclosure of his expert at the time the sanction was imposed, and under the circumstances (as will be discussed), plaintiff did not establish a legitimate excuse.

Plaintiff also implies that he lacked the ability to comply with the order, citing Applegate v. Seaborn (1985), 132 Ill. App. 3d 473, 477 N.E.2d 74, for the proposition that Judge Mistretta’s order was unwarranted. In Applegate, however, a nonparty had disposed of evidence in the case, and plaintiff’s counsel never had control over the disposed-of evidence. Thus, the trial court’s sanction under Rule 219 was unwarranted. (132 Ill. App. 3d at 474-75.) In this case, while plaintiff may not have “controlled” the 'VA, clearly plaintiff had the ability to retain his own expert, which plaintiff had been warned to do prior to the imposition of the limiting sanction, and plaintiff in fact subsequently did.

More persuasive to resolution of the issues before us are the cases cited by defendants. In Castro, for instance, the court affirmed the sanction of barring the testimony of an expert witness. There the plaintiff had repeatedly failed to disclose the identity of her expert. Plaintiff was given leave to identify her expert, and when plaintiff did so, it turned out that the expert was uncritical of defendants. The court, detailing plaintiff’s noncompliance with numerous discovery requests and orders, affirmed the sanction of refusal to allow additional expert testimony, and affirmed the granting of summary judgment in defendant’s favor. Castro, 166 Ill. App. 3d at 485. Accord James v. Yasunga (1987), 157 Ill. App. 3d 450, 456-57, 510 N.E.2d 531.

In short, in this case, by the time Judge Mistretta entered the sanction limiting plaintiff to Dr. Rubinstein as a witness, several explicit directives that plaintiff identify his expert had been made. Interrogatory requests had been served and unanswered and insufficiently answered. Plaintiff had been warned that sanctions were imminent and that he might need to retain a private expert. In fact, some two months before the entry of the order, plaintiff’s counsel indicated that he intended to retain a private expert. Some 6V2 weeks prior to Judge Mistretta’s limiting order, Judge Gomberg had indicated the appropriateness of the limiting sanction. On that occasion, while the limiting sanction was not included in the written order, plaintiff’s counsel did not object to the limiting sanction. The period of plaintiff’s noncompliance with the discovery schedule ranged from Judge Keleher’s initial order in June of 1987 that plaintiff’s expert be disclosed in November of 1987, to the entry of the limiting order in August of 1989. Plaintiff’s attempt to obtain a free expert witness, while understandable, is not a sufficient excuse for plaintiff’s repeated failure to comply with several different judges’ discovery orders over the above period. The record reveals further that plaintiff was given numerous extensions and accommodations. It is apparent that were the courts to sanction repeated noncompliance with discovery orders such as occurred in this case, the purpose of Rule 220 would be eviscerated. Under the circumstances, Judge Mistretta’s sanction limiting plaintiff to Dr. Rubinstein was just, given plaintiff’s lack of reasonableness in effectuating compliance with the discovery schedule. Therefore, we hold that the entry of the sanction not an abuse of discretion.

We next address whether it was error for the trial court to refuse to vacate the sanction which limited plaintiff to Dr. Rubinstein. Plaintiff has cited Cometo v. Foster McGaw Hospital (1988), 167 Ill. App. 3d 1023, 522 N.E.2d 117, in support of his argument that Judge Mistretta should have granted plaintiff’s motion to vacate or reconsider the denial of the motion to reconsider. Cometo, however, is factually distinguishable. There, the plaintiff had in fact complied with a second discovery order in identifying plaintiff’s expert — only the expert initially refused to testify. Then, within a month after the sanctions were imposed (which barred plaintiff from calling an expert), the previously disclosed expert did testify. In response to a motion for summary judgment, plaintiff proffered the expert’s affidavit, and the Cometo court held that this change in circumstances as well as a continuation of the trial date constituted a “sufficient change in circumstances from those that existed when the Rule 220 sanctions were imposed to require the trial court, in the interests of justice, to reopen discovery and reject the harsh penalty of summary judgment.” (Cometo, 167 Ill. App. 3d at 1029.) Here, there was no initial noncompliance of a disclosed expert; rather, there is reflected willingness on the part of Dr. Rubinstein to testify — only Dr. Rubinstein did not criticize defendants.

Moreover, when the discovery was sought to be reopened in Cometo, the plaintiff tendered the affidavit testimony. Here, when plaintiff attempted to vacate the limiting order, no affidavit or other testimony was supplied Judge Mistretta. It was only upon the filing of a motion to reconsider that plaintiff’s subsequent expert’s affidavit was offered. In considering the issue of the propriety of vacating a judgment upon a motion to reconsider in a related context, our supreme court has observed that “[t]he submission of new matter on such a motion *** lies in the discretion of the trial court [citation], but it should not be allowed in the absence of a reasonable explanation of why it was not available at the time of the original hearing [citations]. In the absence of any such valid explanation, there was no reason to change the ruling.” (Delgatto v. Brandon Associates, Ltd. (1989), 131 Ill. 2d 183, 195, 545 N.E.2d 649.) Here, the affidavit testimony of the subsequent expert which was tendered with the motion to reconsider was, according to the motion to vacate, known to plaintiff at the time of the hearing on the motion to vacate. Plaintiff offered no reasonable explanation for its prior absence. Thus, even if it would have been proper for the trial judge to vacate the sanction order if the original motion had been supported by affidavit, it was not improper for the court to deny the subsequent motion to reconsider.

In sum, the circumstances in this case were not sufficient to require the trial court to vacate the sanction imposed, and Judge Mistretta’s failure to do so was not an abuse of discretion.

Finally, we address whether Judge Quinn erred in granting defendants’ motion for summary judgment. Plaintiff requests that we reverse the granting of summary judgment in defendants’ favor, so that the affidavit of plaintiff’s subsequent expert, Dr. Walsh may be considered. Plaintiff, however, concedes that he needed an expert witness in order to defeat the summary judgment motion. Plaintiff makes no argument that it was error for Judge Quinn to fail to review the order of Judge Mistretta. Nor does plaintiff argue that a question of fact existed at the hearing on defendants’ motion. Since it is undisputed that plaintiff was unable to prove, absent further expert testimony, the essential elements of his case, we hold that the granting of summary judgment was proper.

Accordingly, the judgment of the circuit court is affirmed.

Affirmed.

MeNAMARA and EGAN, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE CERDA

license: Public Domain

text:
    JOHN G. WILSON, Plaintiff and Counterdefendant-Appellee, v. FRANCIS S. WILSON III et al., Defendants (Thomas S. Wilson, Intervenor Plaintiff; Francis S. Wilson III et al., Counterplaintiffs and Third-Party Plaintiffs; JGT Company, Counterplaintiff and Third-Party Plaintiff-Appellant; Thomas S. Wilson et al., Third-Party Defendants; Evanston Partners, Ltd., et al., Third-Party Defendants-Appellees).
    First District (3rd Division)
    No. 1 — 90—1812
    Opinion filed August 7, 1991.

      Bell, Boyd & Lloyd, of Chicago, for appellant.
    Burke, Wilson & Mcllvaine, of Chicago, for appellees.
   PRESIDING JUSTICE CERDA

delivered the opinion of the court:

Plaintiff, John Wilson, brought an action seeking equitable remedies arising out of a business break-up. Defendants, Francis Wilson, Gregory Matic, and Highland Company, n/k/a JGT Company (Highland/JGT), filed a counterclaim, third-party complaints, and a motion for a temporary restraining order and a preliminary injunction to enjoin John Wilson and Evanston Partners from developing a medical office building without them. After a hearing, the trial court denied the motion for a preliminary injunction. On appeal, Highland/JGT argues that (1) the trial court erred in denying its motion for a preliminary injunction; and (2) the trial court erred in ruling that the 90-day termination notice of the consulting agreement effectively terminated the subsequent development agreement.

On July 8, 1985, John Wilson and Gregory Matic entered into a development consulting agreement (Consulting Agreement) for the purpose of working together on the proposed development of an Evanston, Illinois, medical office building and other projects. In September 1985, John Wilson, his brother, Francis Wilson, and Gregory Matic formed Highland Development Company (Highland), an Illinois corporation, for the management and development of several real estate properties. On October 24, 1985, the three men organized Evanston Partners, Ltd., an Illinois limited partnership, and Evanston Partners, Inc., an Illinois corporation, which was to act as the general partner of Evanston Partners, Ltd., to organize the ownership of the proposed medical center. They initially proposed to sell limited partnership interests in Evanston Partners, Ltd., to obtain the equity capitalization needed to construct and develop the center. However, they were unable to sell any interests in the project.

On October 31, 1985, John Wilson assigned all of his rights and obligations under the July 1985 Consulting Agreement to Evanston Partners, Ltd., and Gregory Matic assigned all of his rights and obligations in the Consulting Agreement to Highland. On December 1, 1986, Evanston Partners, Ltd., and Highland entered into an agreement entitled “Amended and Restated Development Agreement” (Development Agreement), which was to be effective retroactive to July 8, 1985, the date of the Consulting Agreement. The 1986 agreement detailed Highland’s expanded responsibilities and corresponding remuneration. By that time, Highland had located the property, negotiated terms of its purchase and of an architectural agreement, and assisted in obtaining financing for the medical center. Completion of the medical center was projected for December 31,1988.

In the summer of 1988, the relationship between the three men had deteriorated and they decided to formally separate their interests in the project. On August 19, 1988, John Wilson and Francis Wilson entered into a written separation agreement in which John Wilson acquired all of Francis Wilson’s interest in Evanston Partners, Ltd., and in Evanston Partners, Inc. In return, John Wilson conveyed to Francis Wilson all of his interests in various corporations where they held joint interests. At the same time, John Wilson entered into a similar separation agreement with Gregory Matic. Matic conveyed all of his interest in Evanston Partners, Ltd., and in Evanston Partners, Inc., in exchange for a $300,000 payment. John Wilson remained an officer of Highland until November 1988 and continues to be a director.

On July 3, 1989, John Wilson, as president of Evanston Partners, Ltd., sent Highland a 90-day notice, pursuant to the 1985 Consulting Agreement, terminating the 1986 Development Agreement. On July 7, 1989, Highland’s name was changed to the JGT Company. On August 1, 1989, John Wilson filed suit against Gregory Matic, Francis Wilson, and Highland/JGT seeking an accounting and other equitable relief. Subsequently, Francis Wilson, Gregory Matic, and Highland/ JGT filed a counterclaim and a motion for a temporary restraining order and a preliminary injunction, in which they challenged John Wilson’s right to develop the medical center without them. The motion sought to enjoin John Wilson, Evanston Partners, Inc., and Evanston Partners, Ltd., from: (1) attempting to develop, finance, or lease the medical center to the exclusion of Highland/JGT; (2) entering into development contracts, financing agreements, loans, leases, or any other development, financing documents, or leasing documents with respect to the medical center, without providing for and paying to Highland/ JGT the fees and commissions to which it is entitled; and (3) representing to other persons that Highland/JGT is not the development, financing, or leasing agent for the medical center.

After a hearing, the trial court denied the motion for a temporary restraining order, finding that Highland/JGT did not prove that it had an ascertainable claim for relief to which it was likely to succeed on the merits, nor did it demonstrate irreparable harm or a lack of an adequate remedy at law. The trial court further ruled that the Consulting Agreement was incorporated by reference through the Development Agreement’s recitals and preamble, or “therefore” clause, and that the “term” provisions in both agreements were not inconsistent. In addition, the trial court found that Highland/JGT’s claims of harm to its goodwill did not state sufficient, specific, factual evidence to show irreparable harm and damage. There was no specific evidence of what Highland/JGT had done since October 1988 to garner goodwill, the trial court indicated. Furthermore, the trial court ruled, the conclusory statements that John Wilson was unable to sell interests in the medical center were not enough to support its argument. In fact, prior to October 1988, Highland/JGT was unable to sell any interests in the medical center project to outside investors.

The trial court also ruled that Highland/JGT did not show that money damages for breach of contract would not be an adequate remedy. Finally, the trial court balanced the equities, concluding that there would be more harm done by entering the restraining order, thus preventing the medical center project from continuing, than would be done by not entering the order.

Subsequently, based on the evidence from the temporary restraining order hearing, the trial court denied the motion for a preliminary injunction. The trial judge stated that based on the Development Agreement, there was not a fair chance of succeeding on the merits and no irreparable harm or damage was demonstrated. Highland/JGT filed an interlocutory appeal pursuant to Supreme Court Rule 307(a)(1) (134 Ill. 2d R. 307(a)(1)).

On appeal, Highland/JGT asserts that the trial court erred in denying its motion for a preliminary injunction. The purpose of a preliminary injunction is to prevent a threatened wrong or a continuing injury pending a full hearing on the merits of the case. (H.K.H. Development Corp. v. Metropolitan Sanitary District of Greater Chicago (1964), 47 Ill. App. 2d 46, 53.) Because a preliminary injunction is an extraordinary remedy (Baal v. McDonald’s Corp. (1981), 97 Ill. App. 3d 495, 501), the status quo, which is the last, actual, peaceable, uncontested status preceding the controversy (Baal, 97 Ill. App. 3d at 502), is to be preserved with the least injury to the parties. Grillo v. Sidney Warner & Sons, Inc. (1975), 26 Ill. App. 3d 1007, 1011.

For a preliminary injunction to be granted, Highland/JGT must establish a protectable interest, a likelihood of success on the merits, an irreparable injury in the absence of injunctive relief, and no adequate remedy at law. (American National Bank & Trust Co. v. Chicago Title & Trust Co. (1985), 134 Ill. App. 3d 772, 776.) Generally, the grant of the temporary relief should outweigh any possible injury which the defendant might suffer by its issuance. Greenspan v. Mesirow (1985), 138 Ill. App. 3d 294, 300.

Highland/JGT claims a protectable interest based on the Development Agreement between Highland and Evanston Partners. In reliance on that agreement, Highland/JGT asserts, Highland/JGT, Francis Wilson, and Greg Matic invested considerable time and substantial amounts of money, which they expected to recoup by earning fees and commissions under the agreement. Highland/JGT also asserts a legitimate interest in protecting its corporate goodwill arising from the medical center project’s close identification with Highland/JGT, its reputation, and its future competitive position. Finally, Highland/JGT contends, it has a legitimate interest in preventing John Wilson, a director of Highland/JGT, from violating his fiduciary duties to Highland/JGT.

John Wilson and Evanston Partners respond that the Consulting Agreement was incorporated by reference into the Development Agreement. Once that agreement was terminated in July 1989, John Wilson and Evanston Partners claim, Highland/JGT no longer had an ascertainable right which must be protected.

Whether Highland/JGT has a protectable interest and would likely succeed on the merits of the case depends on whether the Development Agreement replaced and superseded the Consulting Agreement or whether the Consulting Agreement was incorporated by reference into the Development Agreement through the preamble, or “therefore” clause. If the Development Agreement replaced and superseded the Consulting Agreement, the 90-day termination notice would be ineffective. If, however, the Consulting Agreement was incorporated by reference, the 90-day notice effectively terminated the Development Agreement and any interests Highland/JGT previously had.

Highland/JGT argues that various provisions of the Development Agreement establish that it superseded the Consulting Agreement: its title and retroactive effective date; paragraph 11A (extent of agreement); recitals and preamble; and inconsistencies in the functions, terms and compensation provisions. A court must consider the contract in the context of the entire agreement. (Martindell v. Lake Shore National Bank (1958), 15 Ill. 2d 272, 283.) The determinative factor is the intention of the parties, which can best be determined by considering the contract as a whole, reviewing each part in light of the others. Boatmen’s National Bank v. Smith (7th Cir. 1987), 835 F.2d 1200, 1203.

There is no merit to Highland/JGT’s arguments that the Development Agreement’s title and its retroactive effect to the Consulting Agreement’s date are evidence that it superseded the Consulting Agreement. The title of the Development Agreement, “Amended and Restated Development Agreement,” is ambiguous since “amended” and “restated” are contradictory terms. Neither the title nor the retroactive effective date demonstrates that the parties intended to start over again, instead of merely altering the Consulting Agreement.

Highland/JGT also asserts that the Development Agreement’s paragraph 11.A established that the parties intended for the Development Agreement to totally replace the Consulting Agreement. Paragraph ll.A provides:

“11. Extent of Agreement.
A. Entire Agreement. This Agreement represents the entire agreement between the Owner and Highland with respect to the subject matter hereof, and supersedes all prior negotiations, representations or agreements, either written or oral. This Agreement may be amended only by written instrument signed by both the Owner and Highland.”

Relying on Courtois v. Millard (1988), 174 Ill. App. 3d 716, Highland/JGT contends that this provision makes the Development Agreement a complete, valid, written contract, which merges and supersedes all prior agreements dealing with the same subject matter, including the Consulting Agreement. In Courtois, the parties entered into two separate real estate installment contracts involving the same

property. (174 Ill. App. 3d at 720.) The second contract was drafted more specifically and contained several provisions that were inconsistent with the first contract, suggesting that the parties intended for the second contract to control and to supersede the first contract. (Courtois, 174 Ill. App. 3d at 720-21.) Because the two contracts were distinguishable from each other and contained inconsistent terms, only one of the contracts was valid. (Courtois, 174 Ill. App. 3d at 721.) Therefore, the execution of the second contract terminated the legal effect of the first contract. Courtois, 174 Ill. App. 3d at 721.

The Courtois decision, however, is distinguishable because its first real estate contract was not incorporated by reference into its second contract. Furthermore, the court found that several provisions of the second contract were inconsistent with the first contract. Courtois, 174 Ill. App. 3d at 720.

Paragraph 11A must be interpreted in conjunction with the recitals and preamble. Paragraph 11A is a general provision where the recitals and preamble are specific provisions. When a contract contains both general and specific provisions relating to the same subject, the specific provision controls. Boatmen’s National Bank, 835 F.2d at 1203.

Highland/JGT argues that the incorporation of the Consulting Agreement into the Development Agreement’s recitals did not make it a binding obligation because it was not referred to in the operative portion of the agreement. Highland/JGT interprets recital A as merely giving the historical circumstances preceding the execution of the Development Agreement. While the preamble to the terms of the Development Agreement identifies the recitals as part of the prior general consideration for the agreement, Highland/JGT maintains they are distinguished from the operative provisions of the Development Agreement, which follow in the body of the agreement. Those operative provisions, Highland argues, contain no reference to the provisions of the Consulting Agreement and indicate no intent to incorporate any substantive provision of the Consulting Agreement into the Development Agreement.

John Wilson and Evanston Partners look exclusively to the Development Agreement’s recitals and preamble to establish that the Consulting Agreement was expressly incorporated into the later agreement. By considering the preamble as an operative portion of the agreement, they argue that the terms of the Consulting Agreement became as much a part of the Development Agreement as if they were expressly written in it. They rely on cases that establish that preliminary recitals of an agreement become binding obligations when referred to in the operative portion of the instrument in such a way that it was the contract’s design that they should form a part of it.

The essence of the contract in Wall v. Chicago Park District (1941), 378 Ill. 81, 90-91, was the conveyance of the plaintiff’s riparian rights in Lake Michigan to the Lincoln Park commissioners for the enlargement of Lincoln Park. The contract included recitals which described the park’s plan in certain areas of Lake Michigan for the purposes of enlarging the park. (Wall, 378 Ill. at 84-85.) The preamble provided that, in consideration for those recitals and the mutual agreements of the parties and in consideration of the performance by the commissioners of the “agreements and conditions herein contained,” the plaintiffs promised to convey their riparian rights. Wall, 378 Ill. at 91.

Later, the park district failed to carry out its original plan and adopted a substantially different plan for the same area. (Wall, 378 Ill. at 88.) Because the new plan would diminish the plaintiff’s property value, it filed a suit for rescission of the contract. (Wall, 378 Ill. at 90.) The court concluded that, even though the provision for the construction of the park did not appear as an express covenant, it was the controlling condition upon which the contract to convey riparian rights was based. (Wall, 378 Ill. at 91-92.) Therefore, the recitals became part of the terms of the contract. Wall, 378 Ill. at 92.

The court in American National Bank (134 Ill. App. 3d at 776-77) ruled that the parties intended that the contract’s recitals be an operative part of the agreement through its language that the contract was entered into “[flor and in consideration of the premises set forth in the foregoing recitals.” (American National Bank, 134 Ill. App. 3d at 776-77.) The recitals stated that the two parties wanted the real estate parcels developed and operated principally for their businesses, which sold and serviced home and other furnishings and fixtures. (American National Bank, 134 Ill. App. 3d at 774-75.) In connection with that desire, they granted reciprocal rights for the ingress, egress, and use of each of their parcels by the other, and to restrict certain of their respective commercial activities. American National Bank, 134 Ill. App. 3d at 773.

Highland/JGT attempts to distinguish both Wall and American National Bank because the recitals in both cases expressed the essence of the consideration for the entire agreements where the Development Agreement does not show a design of which the continuing effectiveness of the Consulting Agreement is a necessary part. Instead, Highland/JGT contends, the Development Agreement’s design and purpose is for the financing, construction, leasing, and operation of the medical center by Highland/JGT to continue, absent default, until substantial completion. Even though Highland/JGT argues that the recitals are not binding, it contends that the last of the six recitals could be considered a controlling condition upon which the agreement is based. That recital states:

“F. Owner wishes to retain Highland to perform certain services in connection with the development, financing, design, construction, management, leasing and marketing of the Property, and Highland is willing to perform such services, all in accordance with the terms and conditions of this Agreement.”

A preliminary recital, which is an explanation of the circumstances surrounding the execution of the contract, does not become a binding obligation unless so referred to in the operative portion of the instrument. (Illinois Housing Development Authority v. M-Z Construction Corp. (1982), 110 Ill. App. 3d 129, 145.) For a contract to incorporate all or part of another document by reference, the reference must show an intention to incorporate the document and make it part of the contract. (Turner Construction Co. v. Midwest Curtainwalls, Inc. (1989), 187 Ill. App. 3d 417, 421.) If so incorporated, those additional provisions become as much a part of the contract as if they were expressly written in it. Turner Construction Co., 187 Ill. App. 3d at 421.

The Development Agreement’s recitals provide:

“A. On or about July 8, 1985, John G. Wilson (‘Wilson’) and Gregory P. Matic (‘Matic’) entered into that certain Development Consulting Agreement (the ‘Development Agreement’), a copy of which is attached hereto as Exhibit ‘A’ and incorporated herein by this reference, for the management, financing and development of the ‘Property’ (as hereinafter defined).”

The preamble expressly incorporates the recitals:

“NOW, THEREFORE, in consideration of the foregoing Recitals, the provisions of which are hereby incorporated herein, and the mutual promises set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: ***.”

The recitals and preamble expressly incorporate the Consulting Agreement by reference. That reference indicates an intention of the parties to incorporate the Consulting Agreement and to make it part of the Development Agreement.

Next, Highland/JGT argues that the inconsistencies between the two agreements establish that they are distinctly different contracts and cannot be read together. Highland/JGT maintains that the description in the Consulting Agreement of John Wilson’s functions as project construction manager and his compensation are inconsistent with the development and management functions of Highland in the Development Agreement. Similarly, Highland/JGT claims, the Consulting Agreement’s compensation for Greg Matic of $4,000 a month was inconsistent with the Development Agreement’s provision for paying Highland a development fee of $325,000.

In contrast, John Wilson and Evanston Partners maintain that the two agreements are consistent and that the contract language is plain. In viewing the Development Agreement as a personal service contract, they state that it would make no sense for either party to enter into a contract which could be terminated, without penalty, only after the entire project had been completed. John Wilson and Evanston Partners claim that the differences between designating John Wilson as the project construction manager in the Consulting Agreement and Highland as such in the Development Agreement are irrelevant because the Development Agreement expressly provides that the duties of the parties may change and that the agreement was not intended to restrict those changes.

Highland/JGT also asserts that the term provisions are inconsistent. While the Consulting Agreement expressly provided:

“Term. The term of this Agreement shall be for one year from date and shall be automatically extended for successive periods of one year unless terminated by written notice from a party delivered or mailed to the other party at the address set forth above (or substitute address) within 90 days’ prior to the anniversary of this Agreement,”

the Development Agreement provided:

“3. Term: Subject to earlier termination, the term of this Agreement shall end upon ‘Substantial Completion’ (as defined in the Architectural Agreement) of the ‘Improvements’ (as hereinafter defined).” (Emphasis added.)

Highland/JGT contends that a strong presumption arises against reading the termination provision of the Consulting Agreement into the comprehensive and detailed language of the Development Agreement because the parties could easily have included such a provision in the language of the Development Agreement, but did not. (McWhorter v. Realty World-Star, Inc. (1988), 171 Ill. App. 3d 588, 594.) Because the parties included specific and exhaustive language concerning the relationship between the parties but not concerning the term of the agreement, they assumed that the parties did not intend the “term” provision of the Consulting Agreement to be operative along with the “term” provision of the Development Agreement.

Highland/JGT’s argument is without merit. The “term” paragraphs of the Consulting Agreement and Development Agreement are not inconsistent. The Consulting Agreement provides for a yearly term to be automatically extended unless terminated on 90 days’ prior written notice. By incorporating that provision, as evidenced in the language, “Subject to earlier termination,” the Development Agreement provides that unless previously terminated by a 90-day written notice or default, the agreement terminates on substantial completion of the project.

Next, Highland/JGT asserts that it will suffer irreparable harm in the absence of a preliminary injunction. An injury is irreparable when it is of a nature that the injured party cannot be adequately compensated or when damages cannot be measured by any certain pecuniary standard. (Falcon, Ltd. v. Corn’s Natural Beverages, Inc. (1987), 165 Ill. App. 3d 815, 821.) Highland/JGT need not show injury that is beyond repair or beyond compensation in damages, but rather, that there are transgressions of a continuing nature, of such constant and frequent recurrence that no redress can be had at law. Greenspan, 138 Ill. App. 3d at 300; Sports Unlimited, Inc. v. Scotch & Sirloin ofWoodfield, Inc. (1978), 58 Ill. App. 3d 579, 583.

Highland/JGT argues that it will suffer an injury that cannot be adequately and completely remedied because there is no adequate method to determine money damages and damage to its goodwill. Furthermore, Highland/JGT states, its exclusion from the project, John Wilson’s operation of a competing business, and the harm to Highland/JGT’s goodwill are of a continuing nature. Therefore, Highland/JGT maintains, it will suffer irreparable harm to its professional reputation, business contacts, good-will, and competitive ability if John Wilson is not enjoined from developing the medical center to the exclusion of Highland/JGT. Highland/JGT considers the medical center project as a one-of-a-kind, special use real estate project for which it has expended a substantial amount of money and time to develop, construct, finance, lease, and manage. Highland/JGT states that its ability to perform and its reputation became its principal goodwill and the foundation to compete for similar development business in the future.

Highland/JGT’s argument fails because it did not present any facts to show that it would suffer irreparable harm. Its conclusory statements regarding damage to its purported goodwill were not enough. Injunctive relief is so extraordinary that allegations of mere opinion, conclusion, or belief are not sufficient. (Allstate Amusement Co. v. Pasinato (1981), 96 Ill. App. 3d 306, 308.) Facts which clearly establish that the remedy is necessary must be pleaded. Maas v. Cohen Associates, Inc. (1983), 112 Ill. App. 3d 191, 195.

The next issue is whether Highland/JGT has an adequate remedy at law. An adequate remedy at law is one which is clear, complete, and as practical and efficient to the ends of justice and its prompt administration as the equitable remedy. (Agrimerica, Inc. v. Mathes (1988), 170 Ill. App. 3d 1025, 1035.) A preliminary injunction will not be granted where the plaintiff can be adequately compensated by an award of money damages. La Salle National Bank v. Refrigerated Transport Co. (1987), 165 Ill. App. 3d 899, 901.

Highland/JGT maintains that it lacks an adequate remedy at law because money damages will not adequately compensate it for the loss and unrealized value of its professional reputation, business contacts, and goodwill. Furthermore, Highland/JGT anticipates losing future fees and commissions because the loss would be difficult, if not impossible, to calculate with any degree of certainty. Highland/JGT notes that if the project is not successful because of the lack of Highland/ JGT’s participation, there will be no commissions and fees. Finally, Highland/JGT claims that it would be difficult to establish a standard for damages because the leases are unique.

Highland/JGT cites cases where there was no adequate remedy at law. The court in Falcon, Ltd. (165 Ill. App. 3d at 820-21) ruled that there was no adequate remedy at law because the injury to plaintiffs reputation and goodwill, and the resulting loss of existing and future business, was incalculable even though immediate damages in loss of commissions may be calculable. The court reasoned that the plaintiff had spent substantial time and effort in developing the distribution network through which the defendants could sell their beverages. (Falcon, Ltd., 165 Ill. App. 3d at 821.) By directly billing the plaintiffs’ subdistributors and receiving and filling orders without plaintiffs’ consent, the defendant interfered with plaintiffs’ contractual and prospective relationships with their subdistributors to the extent that damages could not be ascertained with any certainty. Falcon, Ltd., 165 Ill. App. 3d at 821.

In Agrimerica, Inc. (170 Ill. App. 3d at 1035), the court ruled that even though lost profits are often calculable, they would not compensate for the loss of competitive position sustained during the several weeks before Agrimerica discovered the ex-employee was attempting to lure its customers away. Furthermore, the court stated, any continued contracts by the ex-employee could result in damage extending far beyond the time restriction enunciated in the covenant because the evidence showed that two years was needed to solidify initial customer relationships. Agrimerica, Inc., 170 Ill. App. 3d at 1035.

In U-Haul Co. v. Hindahl (1980), 90 Ill. App. 3d 572, 577, the court distinguished between immediate damages and loss of sales, which may be calculable, and injury to the plaintiffs reputation and goodwill and the resulting potential loss of future business, which are incapable of adequate computation.

In affirming the preliminary injunction in Eagle Books, Inc. v. Jones (1985), 130 Ill. App. 3d 407, 411, the court ruled that there was no adequate remedy at law because the potential loss of future customers and revenues was incapable of adequate computation of damages even though immediate damages in loss of sales may be calculable.

Evanston Partners correctly points out that Highland/JGT’s allegations that John Wilson or Evanston Partners may not properly develop the medical center or that Evanston Partners may not have adequate assets to pay the commissions or fees are without factual support in the record and should be disregarded. A reviewing court considers only those documents and arguments which pertain to the appellate court record and disregards all extemporaneous documents and comments by either party that are not supported by the record. McCutcheon v. Chicago Principals Association (1987), 159 Ill. App. 3d 955, 958.

John Wilson and Evanston Partners assert that Highland/JGT’s action is one for money damages arising out of an alleged breach of the Development Agreement. Therefore, an award of money damages could fairly and adequately compensate Highland/JGT. They argue that Highland/JGT calculated its alleged damages in its verified motion for a preliminary injunction. Even though these calculations did not include any fees or commissions for future work, Evanston contends that the Development Agreement sets forth exactly how the fees and commissions are to be calculated. Therefore, they argue that the damages are capable of being measured and corrected by an award of money damages.

John Wilson and Evanston Partners cite numerous cases that ruled an adequate remedy at law existed. In La Salle National Bank (165 Ill. App. 3d at 901), the landlord was not entitled to injunctive relief to enforce the lease agreement because the lease agreement provided for money damages and the complaint showed that there was an adequate remedy at law in the form of monetary recovery. La Salle National Bank, 165 Ill. App. 3d at 901.

In Best Coin-Op, Inc. v. Old Willow Falls Condominium Association (1983), 120 Ill. App. 3d 830, 835, the court refused to issue a preliminary injunction because any monetary loss which the plaintiff suffered could be calculated with a great deal of certainty. The court was not concerned with future losses that would occur if it was determined that the defendant had breached the agreement. (Best Coin-Op, 120 Ill. App. 3d at 835.) Instead, it was concerned with any possible loss until a final determination on the merits. (Best Coin-Op, 120 Ill. App. 3d at 835.) Because the laundry facilities were being operated by another party, damages could be calculated on any gross receipts during that period. Best Coin-Op, 120 Ill. App. 3d at 835.

The court reversed the preliminary injunctions in Handy Andy Home Improvement Centers, Inc. v. American National Bank & Trust Co. (1988), 177 Ill. App. 3d 647. After the bank entered into a written 30-year lease agreement that gave Handy Andy the exclusive right to operate a home improvement center at the shopping center, the landlord rented space in the shopping center to Cabinet Wholesalers, which would sell kitchen cabinets and bathroom fixtures. (Handy Andy, 177 Ill. App. 3d at 649-50.) Handy Andy contacted the bank, which padlocked the Cabinet Wholesalers store and terminated the lease. (Handy Andy, 177 Ill. App. 3d at 650.) Cabinet Wholesalers was granted a preliminary injunction prohibiting the bank from interfering with its access and use of the store. (Handy Andy, 177 Ill. App. 3d at 650.) Subsequently, Handy Andy was denied a preliminary injunction to enjoin the bank from interfering with its exclusive right to sell home improvement items at the shopping center. Handy Andy, 177 Ill. App. 3d at 651.

The court reversed Cabinet Wholesalers’ injunction, ruling that Cabinet Wholesalers had an adequate remedy at law. (Handy Andy, 177 Ill. App. 3d at 653.) If they ultimately were granted specific performance under the lease and were allowed to take possession, evidence of lost profits could be used to establish damages. (Handy Andy, 177 Ill. App. 3d at 653.) If they prevailed at trial, but were not granted specific performance, they could establish damages through evidence of expenditures in preparing the store for operation and any lost profits suffered as a result of being denied possession pending trial. Handy Andy, 177 Ill. App. 3d at 653.

The court also reversed the denial of Handy Andy’s request for preliminary injunction because there was no adequate remedy at law. (Handy Andy, 177 Ill. App. 3d at 655.) Not only would it be difficult to ascertain a loss of sales attributable to the competitor’s operation, but it would also be very difficult to determine the negative effect the lost sales of kitchen and bathroom products would have on other items sold in the store. Handy Andy, 177 Ill. App. 3d at 654.

Although it may be complicated to ascertain the amount of damages that may exist, Highland/JGT did not demonstrate that it would be impossible. Its anticipated fees and commissions would be calculated based on a percentage of Highland/JGT’s performance of specialized development work, financing, management, and sale of individual leases. Therefore, the trial court did not err in finding that Highland/JGT had an adequate remedy at law.

Finally, in balancing the equities, the court must weigh the inconveniences to the parties and the public to determine whether granting the injunction would cause less disturbance to the defendant’s position than the denial would to the plaintiff’s position. (Sports Unlimited, 58 Ill. App. 3d at 583.) The trial court concluded that there would be more harm done by entering the preliminary injunction, thus preventing the medical center project from continuing, than would be done by not entering the order. We agree. Maintaining the status quo is more important in this case.

It is in the discretion of a trial court to grant or deny a preliminary injunction, and a reviewing court cannot reverse that ruling unless the lower court abuses its discretion by being against the manifest weight of the evidence. (American National Bank, 134 Ill. App. 3d at 777.) It is not the purpose of a preliminary injunction to decide controverted facts or the merits of the case. (Baal, 97 Ill. App. 3d at 500.) A reviewing court may consider substantive issues only as necessary to determine whether the trial court acted within its authority. (American National Bank, 134 Ill. App. 3d at 777.) Because the denial of the preliminary injunction was not against the manifest weight of the evidence, the trial court did not abuse its discretion.

Based on the foregoing, the judgment of the circuit court should be affirmed.

Affirmed.

WHITE and GREIMAN, JJ., concur.

       Justice White concurred with this opinion prior to his retirement.
      Justice Freeman heard the oral argument in this case prior to his election to the Illinois Supreme Court. Justice Greiman was substituted, and he reviewed the briefs and the record and agreed with the decision.


text:
    MARY LEWIS BROWN, as Adm’r of the Estates of James Thomas, Deceased, Earldean Thomas, Deceased, and Michael Tyrone Hampton, Deceased, and as Mother and Next Friend of Earl Ray Thomas, a Minor, Plaintiff-Appellant, v. ELIZABETH KIDD et al., Defendants-Appellees (James Kirkwood et al., Plaintiffs-Appellants).
    First District (3rd Division)
    Nos. 1 — 90—2408, 1 — 90—2416 cons.
    Opinion filed August 7, 1991.

      Stein & Cherny, Ltd., of Chicago, for appellants James Kirkwood and Lottie Kirkwood.
    John E. Marszalek, of Chicago, for appellant Mary Lewis Brown.
    Malek & Wein, P.C., of Chicago (Edward J. Malek, of counsel), for appellees.
   PRESIDING JUSTICE CERDA

delivered the opinion of the court:

This appeal arises from the trial court’s entry of summary judgment in favor of defendants. Plaintiff Mary Brown argues that the trial court erred (1) in entering summary judgment in favor of defendants; (2) in striking the reports of experts John A. Kennedy and Associates, Inc., and J. Mazzone & Associates, Ltd; (3) in holding that plaintiffs could not prove the cause of the fire; (4) in dismissing her second amended complaint; and (5) in refusing her leave of court to file her fourth amended complaint. Plaintiffs James and Lottie Kirk-wood argue on appeal that the trial court erred (1) in entering summary judgment in favor of defendants; (2) in striking the reports of experts John A. Kennedy and Associates, Inc., and J. Mazzone & Associates Ltd; and (3) in holding that plaintiffs could not prove the cause of the fire.

Plaintiffs Mary Brown, James Kirkwood, and Lottie Kirkwood brought actions for the recovery of damages resulting from a January 9, 1982, fire in a three-story building. Defendants were all owners of the building: Mary Henderson, a/k/a Elizabeth Kidd, Charlie Henderson, Tommie Levell, Maceo Levell, Mabel Lewis, and Roberta Haynes. Roberta Haynes, however, died prior to the fire, and the lawsuit was dismissed against her. Tommie Levell, Mabel Lewis, and Mary Henderson were sisters.

All the owners lived on the first and second floors of the building. Defendants Mary and Charlie Henderson, who are still alive, lived on the first floor. Defendant Mabel Lewis, now deceased, lived on the second floor with her daughter, plaintiff Mary Brown, and her four grandchildren, James Thomas, 13 years old, Michael Tyrone Hampton, 11 years old, Earldean Thomas, three years old, and Earl Ray Thomas, three years old. The only child who survived the fire was Earl Ray Thomas. Michael Tyrone Hampton lived for 88 days after the fire, during which time he incurred approximately $250,000 in medical bills. In the rear of the second floor lived defendants Tommie and Maceo Levell, who are now deceased. Plaintiffs Lottie and James Kirkwood rented the third floor and lived there with their daughter.

Plaintiff Brown filed a five-count complaint for recovery of damages for the wrongful deaths of her deceased daughter and two deceased sons, and for the personal injuries of her surviving son. The complaint also sought $250,000 in medical and funeral expenses for the deceased children, and the pain and suffering of the deceased children and the surviving child. The initial complaint was based on the theory of negligent maintenance of the building’s electrical system and failure to provide smoke detectors. Plaintiffs James and Lottie Kirkwood filed a complaint for recovery of property damage based on the same theory of liability as that of plaintiff Brown. The Kirkwoods’ action was consolidated into Brown’s action.

Plaintiff Brown requested and was granted leave of court to file a second amended complaint, to which defendants filed a motion to dismiss pursuant to the Illinois Code of Civil Procedure, section 2 — 615 (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 615). Plaintiff Brown filed a brief, supporting her cause of action for defendants’ willful and wanton misconduct in violation of the child-endangerment statute. (Ill. Rev. Stat. 1981, ch. 23, par. 2354.) Defendants replied, stating that plaintiff Brown, in relying on the statute, improperly pled a cause of action for willful and wanton misconduct.

After argument, the court dismissed the second amended complaint with leave to file a third amended complaint on a theory other than the statutory theory based on the child-endangerment statute. (Ill. Rev. Stat. 1981, ch. 23, par. 2354.) Plaintiffs James and Lottie Kirkwood did not bring an action based on the statutory theory, and did not participate in the motion to dismiss.

Plaintiff Brown filed a third amended complaint, alleging that defendants had a duty to refrain from any conduct which would affect the safety and well-being of the children, willfully and wantonly violated said duty by allowing the children to come into contact with smoking materials, failed to confiscate the smoking materials, left the children unattended in the presence of smoking materials, and left the children unattended in the building so that when the fire broke out, it was allowed to go out of control and entrap the children. Plaintiffs James and Lottie Kirkwood requested and were granted leave of court to file their first amended complaint, which had the same allegations as plaintiff Brown’s third amended complaint.

Instead of answering those amended complaints, defendants filed a motion for summary judgment, stating that plaintiffs would not be able to present any competent evidence regarding who started the fire. Defendants’ motion cited plaintiff Brown’s deposition, in which she testified that on the night of the fire, she left the building for approximately two to three minutes. Before leaving, she told Mabel Lewis, Tommie Levell, Mary Henderson, and her son Michael that she was leaving. James was in his bedroom, Earldean was in the front room, and Mabel Lewis and Michael were in the center room. Charlie and Mary Henderson were on the first floor. Plaintiff Brown told Mary Henderson about the cigarettes that had been left in the front room.

Previously, two of her children, James and Earldean, had played with smoking materials and set two fires in the house in 1973 and 1979. Mary Henderson, Mabel Lewis, Tommie Levell, Charlie Henderson, and Maceo Levell were all aware of those previous fires. All the adults had cautioned the children about playing with matches or lighters. Between 1979 and 1982, there had been no problems with any of the children playing with smoking materials.

In 1982, Tommie Levell, who lived on the second floor, smoked and was in the habit of leaving her smoking materials in the open. Plaintiff Brown stated that Tommie Levell’s matches were in the front room prior to the fire. When plaintiff Brown left the building, she did not remove the smoking materials from the front room because she thought the children would not touch them.

Plaintiff Brown further testified that she did not know how the fire started. The only people who possibly knew were Mabel Lewis or Tommie Levell, who were both deceased. Brown stated that Mabel Lewis, before her death, had only a vague remembrance that the fire started in the front room, and Mary Henderson thought that defective electrical wiring caused the fire. No one gave plaintiff Brown any information that the cause of the fire was from smoking materials. Brown stated that she heard from a friend in the fire department that the fire started in a stuffed chair between the front and center rooms. Plaintiff Brown also testified that she did not know whether the children were playing with smoking materials on the night of the fire.

According to representations made to the trial court, the depositions of the Hendersons indicated that Maceo Levell was also on the second floor at the time of the fire. There was no testimony, affidavits, or sworn statements regarding who remained or left the second floor after plaintiff Brown left.

Plaintiffs filed motions for partial summary judgment on the issue of liability. Plaintiff Brown then filed a motion for leave of court to file her fourth amended complaint and her response to defendants’ motion for summary judgment. She also filed a Supreme Court Rule 191(b) affidavit (87 Ill. 2d R. 191(b)), attaching the experts’ opinion letters because she was unable to obtain affidavits or depositions of the experts due to their hostility. Defendants filed their reply to plaintiff’s responses to the summary judgment motions as well as motions to strike plaintiff Brown’s Rule 191(b) affidavit. 87 Ill. 2d R. 191(b).

The opinion letter of J. Mazzone & Associates Ltd. concluded that, according to the information they had, the fire started in a stuffed chair in the open doorway between the front and center rooms, and that the fire was started by careless use of smoking materials by someone in the apartment. The letter also stated that electrical and gas causes were eliminated, and that the fire was caused by children who were left unattended. Further, the letter stated that there was conflicting information from witnesses and firefighters.

The expert opinion of John A. Kennedy and Associates, Inc., stated in their summary report, was that the fire started in a stuffed chair in the doorway between the front and center rooms. They concluded that the cause of the fire was most probably children playing with fire or careless disposal or use of smoking materials.

The deposition of Ward Cook, who was an Evanston fire investigator at the time of the fire, stated that he did not determine the origin of the fire, but speculated that the fire was caused by possible carelessness, possibly by a child playing with matches. Although he was unable to determine the exact cause of the fire, Cook eliminated electrical or gas causes. He determined that the origin was in the doorway one to two feet above the floor. Based on information that the children were left unattended and had set previous fires, Cook stated that his opinion was that the fire was started by a child playing with matches or a lighter.

After arguments, the trial court judge granted the motion to strike the experts’ reports because they were not supported by affidavits. Further, without evidence of who started the fire, the trial court stated, establishment of relative duties to plaintiffs would be based on pure speculation and conjecture, which could not sustain a finding in favor of plaintiffs. Although there was a fire and people were injured, the trial court found, everything else was pure speculation. Since a case could not stand on speculation, the trial court granted the summary judgment in favor of defendants. Plaintiffs then appealed.

Plaintiff Brown asserts on appeal that the lower court improperly dismissed her second amended complaint because it stated a cause of action for alleged statutory violations based on the child endangerment statute. As defendants correctly contend, plaintiff Brown waived the right to attack on appeal the dismissal of her second amended complaint. (Henkhaus v. Barton (1977), 56 Ill. App. 3d 767, 769.) Where the plaintiff elects to plead over rather than stand on the dismissed complaint, the plaintiff is bound by the election and cannot later appeal the dismissal of the original complaint. Coffey v. MacKay (1972), 2 Ill. App. 3d 802, 810.

All plaintiffs assert that the trial court improperly struck the reports of defendants’ experts, which were attached to plaintiff Brown’s Supreme Court Rule 191(b) affidavit in opposition to the motion for summary judgment. In her affidavit, plaintiff Brown stated that she was not able to obtain affidavits from the defendants’ experts by reason of their hostility, but that she believed that if sworn, they would testify consistent with their written reports, which stated that their opinions were that the fire started on the second floor and was caused by careless use of smoking materials.

We reject defendants’ argument that the reports lacked relevance in determining the motion for summary judgment. Defendants contend that the sole basis for the use of the documents would be for the opinions regarding the cause or origin of the fire, which is not raised in the third amended complaint or the defendants’ motion for summary judgment. Defendants state that the crucial issue is who started the fire and whether defendants properly supervised the children, not where the fire started or whether it was caused by carelessness, arson, or other mechanical means.

The trial court erred in striking the experts’ reports. Although the experts’ reports were not party admissions, as plaintiffs contend, affidavits which assert an expert’s opinion can be considered during a summary judgment proceeding, even though they consist of conclusions. (Protective Insurance Co. v. Coleman (1986), 144 Ill. App. 3d 682, 687-88.) Experts’ opinions can be relevant to the cause and origin of the fire.

Furthermore, plaintiff Brown’s Rule 191(b) affidavit was properly-submitted because it conformed to the requirements of Supreme Court Rule 191(b), which provides for circumstances where affidavits are not obtainable. (87 Ill. 2d R. 191(b).) Therefore, the trial court erred in striking the reports, which were in the form of answers to interrogatories. The error was harmless, however, because consideration of the experts’ opinion reports would not have changed the outcome.

Further, plaintiffs contend that the trial court erred in not considering Ward Cook’s deposition testimony, which stated that his opinion was that the fire was started by a child playing with matches or a lighter. There is nothing in the record, however, to indicate that the trial court did not consider Ward Cook’s deposition.

In arguing that the trial court erred in granting summary judgment in favor of defendants, plaintiffs rely on plaintiff Brown’s deposition testimony, Ward Cook’s deposition testimony, and the experts’ opinion letters. Asserting that it was undisputed that the cause of the fire was careless use of smoking materials, plaintiffs state that defendants were responsible for the fire either because they started the fire or failed to exercise control over the children. Plaintiffs argue that defendants failed to maintain control over the children even though they had the ability and knowledge of the need to prevent them from playing with smoking materials, and failed to remove the smoking materials from the children’s reach. Since children participate jointly in activities and cause more mischief in groups than as individuals, plaintiffs contend, the duty to supervise all the children and remove smoking materials arose even though only two of the four children had previously started fires. Consequently, plaintiffs assert, they do not have to prove which specific child or defendant started the fire.

Plaintiffs rely on Basler v. Webb (1989), 188 Ill. App. 3d 178, where the court upheld a cause of action for negligence against defendant grandparents of a six-year-old bicyclist who injured a pedestrian because of the bicycle’s lack of brakes. The Basler court applied section 316 of the Restatement (Second) of Torts, which states:

“A parent is under a duty to exercise reasonable care so to control his minor child as to prevent it from intentionally harming others or from so conducting itself as to create an unreasonable risk of bodily harm to them, if the parent
a. knows or has reason to know that he has the ability to control his child, and
b. knows or should know of the necessity and opportunity for exercising such control.” Restatement (Second) of Torts §316 (1965).

The crucial issue, however, is that plaintiffs are unable to establish who started the fire because anyone who may have that knowledge is either dead or was too young to have any memory of the fire. The plaintiffs have no evidence that an adult was negligent in caring for a child. The trial court stated in its ruling:

“We all know what the results were. We all know that there was a fire. We know that people were hurt. But that’s all we know, and that’s all anybody is ever going to be able to prove. Everything else is pure speculation. This kind of case cannot be based on pure speculation.
Therefore, I see no alternative but to sustain the motion for summary judgment.”

According to plaintiff Brown’s deposition testimony, there were six people present on the second floor when she left the building: Mabel Lewis, Tommie Levell, and the children, Michael Tyrone Hampton, James Thomas, Earldean Thomas, and Earl Ray Thomas. There is no evidence who entered, remained or left after plaintiff Brown left the building. There is also no evidence regarding who started the fire. Plaintiff Brown specifically states that she has no knowledge as to who started the fire. Although there is speculation that one of the children may have started the fire, there is no evidence which child may have been responsible, if any. Furthermore, there is no evidence that eliminates any of the occupants, including the adults on the second floor, as the person or persons who started the fire. There is also no evidence of negligence on the part of the children or adults.

The purpose of summary judgment is to determine whether a triable issue of fact exists. (Haberer v. Village of Sauget (1987), 158 Ill. App. 3d 313, 316.) It may be granted if the pleadings, admissions, affidavits and depositions on file establish that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (Gatlin v. Ruder (1990), 137 Ill. 2d 284, 293; Ill. Rev. Stat. 1981, ch. 110, par. 2 — -1005(c).) Although the plaintiffs do not have to try their case, they must provide a factual basis which would have arguably entitled them to judgment. Handy v. Sears, Roebuck & Co. (1989), 182 Ill. App. 3d 969, 972.

The issue of the existence of a duty is one of law to be determined by the court. (Curtis v. County of Cook (1983), 98 Ill. 2d 158, 163.) If no duty exists, no recovery is possible as a matter of law and summary judgment in favor of the defendant is proper. (Breeze v. Payne (1989), 181 Ill. App. 3d 720, 727.) The determination that summary judgment is appropriate will not be reversed absent an abuse of the trial court’s discretion such that the plaintiffs’ right to fundamental justice is violated. Breeze, 181 Ill. App. 3d at 727.

Summary judgment was proper since plaintiffs did not provide a factual basis which would have arguably entitled them to judgment. The cause and origin of the fire were pure speculation. Although the experts’ opinions speculated that the origin of the fire was in the doorway between the front and center rooms, the cause of the fire was even more speculative. At best, the evidence shows that electrical and gas causes were eliminated, two of the children had started fires three and nine years previously, one of the adults smoked and habitually left her smoking materials in the open, the fire was probably started in a stuffed chair between the front and center rooms, and the children were left in the care of some of the adults present in the apartment. There is no evidence determining the cause of the fire.

There can be no judicial determination of the rights or liabilities of the parties because it cannot be determined who started the fire. A verdict cannot be based on guess, speculation, or conjecture. Since plaintiffs did not provide any evidence that would entitle them to recover or create an issue of fact necessitating a trial, summary judgment was proper.

The relative duties owed to each plaintiff must be established to determine whether defendants breached any duties owed. To do so, there must be competent evidence regarding who or what started the fire. Without such proof, plaintiffs would be unable to prevail. Since the issue of who started the fire is crucial to this case, the trial court did not abuse its discretion in granting the summary judgment in favor of defendants.

Finally, plaintiffs assert that the trial court erred in denying plaintiff leave of court to file her fourth amended complaint, adding the allegations that defendants could have started the fire. In her reply brief, plaintiff argues that even though she can show that the children started the fire, she can also show that Tommie Levell started the fire if the children did not. Tommie Levell was the only smoker who lived on the first two floors, and she was on the second floor at the time of the fire. Therefore, plaintiff contends, there was a sufficient showing that all defendants were liable for failing to supervise the children and take flammables away from them, or in the alternative, defendant Tommie Levell started the fire.

Defendants respond that plaintiff Brown waived the issue because there is no record of it being presented to the lower court. Although the record contains plaintiff Brown’s motion to file a fourth amended complaint, and her response to defendant’s motion for summary judgment including mention of her request to file a fourth amended complaint, there is no notice of motion or court order indicating that the motion for leave to file was ever argued or heard by the trial court. The July 13, 1990, and July 20, 1990, transcripts of proceedings make no reference to the motion.

Although there is a record of plaintiff Brown’s fourth amended complaint being presented to the trial court, the record does not contain a proposed amendment. The failure to offer a proposed amendment is generally fatal for review of the trial court’s ruling. (Moss v. Gibbons (1989), 180 Ill. App. 3d 632, 639.) Furthermore, there is nothing in the record to indicate that the motion to amend was ever denied. Consequently, the issue is not properly before this court.

Even if it were, however, plaintiff’s argument would fail. She relies on cases where an amendment would cure the complaint’s defects. (See Ruff v. Northwestern Memorial Hospital (1987), 159 Ill. App. 3d 811; Trent v. Brasch Manufacturing Co. (1985), 132 Ill. App. 3d 586; Village of Pawnee v. Knostman (1983), 115 Ill. App. 3d 842.) Such an amendment would be proper either before or after entry of a summary judgment. Siebert v. Continental Oil Co. (1987), 161 Ill. App. 3d 891, 895.

Contrary to these cases, plaintiff Brown’s proposed fourth amended complaint, as presented in her reply brief, would not have cured the deficiency. The amendment did not allege any new evidence which would have been helpful in determining who started the fire. It merely alleged that it did not matter who started the fire.

In their reply brief, plaintiffs raise a res ipsa loquitur argument for the first time. The issue is waived and cannot be argued for the first time on appeal because it was not raised in the lower court. In re Marriage of Rodriguez (1989), 131 Ill. 2d 273, 279.

In conclusion, the trial court did not err in granting the summary judgment in favor of defendants. Although the experts’ reports were improperly stricken, their consideration would not have changed the outcome. Without being able to ascertain who started the fire, there can be no judicial determination regarding what relative duties were owed to plaintiffs.

Although plaintiff Brown testified in her deposition regarding who was present when she left the building prior to the fire, there was no evidence whatsoever regarding who was present in the apartment after she left. The only persons who possibly had that information are deceased or were too young at the time to testify competently. Therefore, summary judgment in favor of defendants was proper. Furthermore, even if plaintiff Brown’s motion for leave of court to file her fourth amended complaint would have been granted, it would not have cured the inherent deficiencies that existed.

For the reasons stated, the circuit court judgment is affirmed.

Affirmed.

WHITE and GREIMAN, JJ., concur.

       Justice White concurred with this opinion prior to his retirement.