author: JUSTICE CAMPBELL

text:
    A.C. CANNON, Plaintiff-Appellant, v. ROSEMARY BRYANT et al., Defendants-Appellees.
    First District (1st Division)
    No. 1—88—3694
    Opinion filed April 9, 1990.

      Spector & Lenz, P.C., of Chicago (H. Thomas Lenz, of counsel), for appellant.
    Law Offices of James J. DesVeaux, of Chicago (J. Deborah Salvesen, of counsel), for appellees.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Plaintiff, A.C. Cannon, appeals from the entry of summary judgment in favor of defendants, Rose Marie Bryant and Antoine T. Edgar, in an action for damages for injuries sustained when plaintiff, defendants’ tenant, allegedly fell on the stairway of an apartment building owned by defendants. The trial court held that, pursuant to section 2 — 616 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2—616), plaintiff’s amended complaint, which corrected the street name of the apartment building’s address and was filed after the relevant statute of limitations period had expired, did not relate back to the original complaint and, thus, was time barred. For the following reasons, the judgment of the trial court is affirmed.

The record indicates that on November 12, 1987, plaintiff filed his complaint against Rosemary Bryant and Anton Edgar, alleging that they owned an apartment building located at 7127 E. 70th Place, Chicago (the Premises). Plaintiff further alleged that on November 13, 1985, while he was lawfully on the Premises, defendants carelessly and negligently allowed an unsafe condition to exist on the porch of the Premises which caused plaintiff to suffer injuries. On March 13, 1988, defendants filed a motion for summary judgment, alleging, inter alia, that on November 13, 1985, defendants did not own the building located at 7127 E. 70th Place, Chicago.

On April 14, 1988, in response to defendants’ motion for summary judgment, plaintiff filed a motion to amend the complaint so as to correct the names of the defendants and the address of the Premises, which had been “inadvertently written” as 7127 E. 70th Place, Chicago, instead of 7127 S. Wabash, Chicago. At the hearing on both motions, the trial court denied defendants’ motion for summary judgment and granted leave to plaintiff to file an amended complaint.

On April 29, 1988, plaintiff filed his amended complaint, which corrected the spelling of defendants’ names, changed the address of the Premises to 7127 S. Wabash, Chicago, and added more specific allegations as to defendants’ negligent acts, i.e., they had carelessly maintained the porch of the Premises by allowing “an unnatural accumulation of oil and grease, resulting from improper garbage removal, to remain on the porch.”

In their answer to the amended complaint, defendants admitted that they owned the building located at 7127 S. Wabash, but claimed, as an affirmative defense, that plaintiff had failed to keep a proper lookout of the surface for his own safety. Defendants then filed a motion for summary judgment, arguing that, based on Zeh v. Wheeler (1986), 111 Ill. 2d 266, 489 N.E.2d 1342, the change of address of the Premises in the amended complaint set forth a new occurrence and, thus, plaintiff’s amended complaint did not relate back to the original complaint and was time barred. The trial court granted defendants’ motion, and plaintiff’s appeal followed.

Initially, plaintiff contends that because defendants answered the amended complaint and filed an affirmative defense without including the statute of limitations defense, they waived their right to assert a statute of limitations defense in the summary judgment motion. Contrary to plaintiff’s assertion, an affirmative defense may be raised in a motion for summary judgment even though it had not been raised previously in the pleadings. Competitive Food Systems, Inc. v. Laser (1988), 170 Ill. App. 3d 606, 524 N.E.2d 207.

Plaintiff next contends that his amended complaint, filed subsequent to the expiration of the relevant statute of limitations, relates back to the original complaint, which was timely filed and, consequently, was not time barred. Section 2 — 616(b) of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2—616(b)), which governs amendments to pleadings and whether they relate back to the filing of the original pleadings, provides, in pertinent part:

“(b) The cause of action *** set up in any amended pleading shall not be barred by lapse of time under any statute or contract prescribing or limiting the time within which an action may be brought or right asserted, if the time prescribed or limited had not expired when the original pleading was filed, and if it shall appear from the original and amended pleadings that the cause of action asserted *** in the amended pleading grew out of the same transaction or occurrence set up in the original pleading, even though the original pleading was defective in that it failed to allege *** the existence of some fact or some other matter which is a necessary condition precedent to the right of recovery or defense asserted, if the condition precedent has in fact been performed, and for the purpose of preserving the cause of action *** set up in the amended pleading, and for that purpose only, an amendment to any pleading shall be held to relate back to the date of the filing of the original pleading so amended.”

In Illinois, pleadings are liberally construed, and they are not intended to present, define and narrow the issues or limit the proof needed at trial. (Swaw v. Ortell (1984), 137 Ill. App. 3d 60, 484 N.E.2d 780.) The purpose of section 2—616(b) is to prevent a person from losing a cause of action due to technicalities. (United Parcel Service v. Church’s Fried Chicken, Inc. (1988), 174 Ill. App. 3d 378, 528 N.E.2d 367.) In order for an amended pleading to relate back, the original pleading need not have technically stated a cause of action, nor need the cause of action set out in the amended pleading be substantially the same as that stated in the original pleading. (Krieger v. Village of Carpentersville (1972), 8 Ill. App. 3d 243, 289 N.E.2d 481.) Rather, the cause of action asserted in the amended pleading must have grown out of the same transaction or occurrence set up in the original pleading. (Zeh v. Wheeler (1986), 111 Ill. 2d 266, 489 N.E.2d 1342.) An amended pleading grows out of the original pleading if the latter provided defendant with all of the necessary information to prepare his defense to the subsequently asserted claim. (Weidner v. Carle Foundation Hospital (1987), 159 Ill. App. 3d 710, 512 N.E.2d 824.) If defendant shows that the amendment hindered his ability to present his case on the merits, the court will find that he has been prejudiced and the amendment will not relate back. However, if the original complaint directed defendant’s attention to the facts on which the amended claim is predicated, the court will find that he has not been prejudiced by the amendment. United Parcel Service v. Church’s Fried Chicken, Inc. (1988), 174 Ill. App. 3d 378, 528 N.E.2d 367.

In a situation such as the one at bar where the amended pleading corrects an erroneous address of the location where a negligent act allegedly occurred, the pivotal question in determining whether the amended pleading relates back to the original is whether the original and amended pleadings expressed two descriptions of the same location (Carlin v. City of Chicago (1914), 262 Ill. 564, 104 N.E. 905) or whether each pleading described two different locations. (Gillmore v. City of Chicago (1906), 224 Ill. 490, 79 N.E. 596; Zeh v. Wheeler (1986), 111 Ill. 2d 266, 489 N.E.2d 1342.) If the pleadings express two descriptions of the same location, the amended pleading relates back to the original. (Carlin, 262 Ill. 564, 104 N.E. 905.) If they describe two different locations, the amended complaint sets forth a new occurrence and does not relate back. Gillmore, 262 Ill. 564, 79 N.E. 596; Zeh, 111 Ill. 2d 266, 489 N.E.2d 1342.

In Carlin v. City of Chicago (1914), 262 Ill. 564, 104 N.E. 905, the original complaint alleged that the defendants had negligently failed to guard or to protect a large piece of boiler which had been placed on Fourteenth Street, near a plant or factory known as Thomas F. Pickham Boiler Works. After the limitations period had run, plaintiff amended her complaint by substituting the word “Place” for the word “Street” in the address. In response, the City filed a plea predicated on the statute of limitations and maintained that the cause of action asserted in the amended complaint was different from that alleged in the original complaint. The Carlin court found that “Fourteenth Street” and “Fourteenth Place” did not refer to different localities; they were merely two descriptions of the same locality. Therefore, the amendment did not state a new cause of action. The court further reasoned that the allegation in the original complaint that the incident had occurred at or near the plant of Thomas F. Pickham Boiler Works had put defendant on notice as to the actual location of the occurrence.

By contrast, in Gillmore v. City of Chicago (1906), 224 Ill. 490, 79 N.E. 596, the supreme court found that changing the street name from “Princeton” in the original complaint to “Stewart” in the amended complaint changed the location of the occurrence, which, in turn, changed the act of negligence. Thus, the amended complaint did not relate back to the original. In Gillmore, plaintiff allegedly sustained personal injury when she stepped into a hole in a public sidewalk in the City of Chicago. The original complaint alleged that the incident took place near the intersection of Thirty-eighth Street and Princeton Avenue. After the limitations period had run, plaintiff amended her complaint by changing the street name from “Princeton” to “Stewart.” Defendant then filed a plea predicated on the statute of limitations.

In holding that the negligence cause of action in the amended complaint was different from that alleged in the original pleading, the Gillmore court noted that the degree of care which a city was required to exercise to keep its sidewalks in a reasonably safe condition varied from location to location. Thus, the act of negligence charged as to one location is a different act of negligence as to another location.

Recently, in Zeh v. Wheeler (1986), 111 Ill. 2d 266, 489 N.E.2d 1342, the supreme court applied Gillmore to a slip-and-fall case against a private owner of a building. In Zeh, plaintiff was allegedly injured while descending a stairway in an apartment building. As a result, she filed a complaint against defendants, alleging that they had been negligent in their duties to operate, manage and control the apartment located at 4400 S. Wallace, resulting in plaintiffs injuries.

Following expiration of the relevant limitations period, plaintiff filed an amended complaint, changing the address of the location of the accident to 4400 S. Lowe. After several of the defendants were dismissed from the action for reasons unrelated to this analysis, the remaining defendant moved to dismiss on the grounds that the amended pleading did not relate back to the original complaint because it stated a new and different cause of action which did not arise out of the same transaction or occurrence set forth in the original complaint. The trial court granted the motion and dismissed the cause with prejudice.

On appeal, in reliance on Gillmore v. City of Chicago, the Zeh court held that the location of the act in a negligence action is a necessary and material element and to change the location is to change the occurrence. Therefore, the amended complaint did not relate back and was time barred.

The present case is factually analogous to Gillmore and to Zeh, where the original and amended pleadings described two different locations. In the original complaint, plaintiff alleged that the accident had occurred at a building owned by defendants, located at 7127 E. 70th Place. Knowing that they did not own a building at that address, defendants moved for summary judgment. Plaintiff then amended the complaint to set forth the correct address. Although defendants were aware that a mistake had been made in the original complaint, the summary judgment motion indicates that they believed the mistake had been made as to the ownership of the building, not as to the address of the building.

Plaintiff claims that the incorrect address in the original complaint was merely a technical mistake and that it is reasonable to assume that defendants recognized the first part of the address in the original complaint, i.e., 7127, as the first part of the address of a building they did own in which plaintiff was a tenant. Contrary to plaintiff’s assertion, the mistaken address was not merely a technical mistake. Not only did the original complaint fail to state the correct address, it also did not allege that plaintiff was a tenant in the building at which the accident had occurred. It merely stated that he had been “lawfully on the premises.” Thus, the original complaint failed to provide defendants with the necessary information to prepare their defense to the subsequent claim alleged in the amended complaint. (Weidner v. Carle Foundation Hospital (1987), 159 Ill. App. 3d 710, 512 N.E.2d 824.) The mere similarity of address numbers was not enough to direct defendants to the facts on which the claim was predicated. United Parcel Service v. Church’s Fried Chicken, Inc. (1988), 174 Ill. App. 3d 378, 528 N.E.2d 367.

The situation in the present case is distinguishable from that in Carlin v. City of Chicago (1914), 262 Ill. 564, 104 N.E. 905, where the word “Street” was replaced by the word “Place.” In Carlin, both the number and street name of the address were correct in the original complaint and the original complaint also referred to an identifiable landmark. For similar reasons, the present case is also distinguishable from the exception noted in Zeh v. Wheeler (1986), 111 Ill. 2d 266, 489 N.E.2d 1342, and relied upon by plaintiff. The Zeh court noted that if there had been “other means of conveying notice of the occurrence to defendant,” a clear mistake in the address set forth in the original complaint would have yielded a different result. As an example, the Zeh court cited to Harastej v. Reliable Car Rental, Inc. (D.P.R. 1972), 58 F.R.D. 197, in which the court found that an amendment correcting an address from 1020 Ashford Avenue to 1010 Ash-ford Avenue related back because defendant had been aware of an accident on its property located at 1010 Ashford Avenue.

In the present case, the pleadings fail to indicate any other means by which notice was conveyed to defendants of the underlying occurrence. Accordingly, because the facts alleged in the original complaint failed to put defendants on notice of the claim within the relevant statute of limitations period, we conclude that the trial court properly entered summary judgment in favor of defendants.

Finally, plaintiff contends that the trial court erred in reversing a previous trial court’s denial of defendants’ first summary judgment motion. Plaintiff bases this argument on the assertion that, at the hearing on defendants’ first motion for summary judgment, defendants argued orally that they did not own or do business at the address stated in the original complaint and that plaintiff’s request to file an amended complaint was barred by the statute of limitations. Plaintiff argues that the trial court’s decision to deny defendants’ first summary judgment motion and to allow plaintiff leave to file an amended complaint after the statute of limitations had run, “demonstrat[ed]” that the court had decided that the amended complaint related back to the original complaint. However, the record contradicts this contention. In the “Stipulated Report of Proceedings,” the parties expressly agree that they are in dispute “as to whether the statute of limitations was argued during the first hearing before Judge Hooton on April 25, 1988.” Therefore, plaintiff’s contention has no basis in fact to warrant this court’s review.

For the aforementioned reasons, the judgment of the trial court is affirmed.

Affirmed.

O’CONNOR and MANNING, JJ., concur.

      The names of the defendants were subsequently corrected to Rose Marie Bryant and Antoine T. Edgar.

      Although Carlin and Gillmore preceded the Civil Practice Act of 1933, the predecessor to the Code of Civil Procedure, the supreme court recently found that both cases are relevant to the question as to whether an amended pleading grew out of the same transaction or occurrence as the original pleading. Zeh v. Wheeler (1986), 111 Ill. 2d 266, 489 N.E.2d 1342.


source: Caselaw Access Project

author: JUSTICE O’CONNOR

license: Public Domain

text:
    LAURA DORY, Plaintiff-Appellant, v. PAUL KOVATCHIS et al., Defendants-Appellees.
    First District (1st Division)
    No. 1—89—0413
    Opinion filed April 9, 1990.

      Gary B. Friedman, Ltd., of Chicago (Jay R. Giusti, of counsel), for appellant.
    Moore & Maisel, and Orner & Wasserman, Ltd., both of Chicago (Thomas J. Branit, Travis G. Maisel, Esther Joy Schwartz, and Helen Wong Nehok, of counsel), for appellees.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Plaintiff Laura Dory was 84 years old when she slipped and fell on defendant Paul Kovatchis’ property injuring her left leg, hip, and arm. Dory sued Kovatchis and Farmers Pride Sausage Company (Farmers Pride), an unincorporated business owned by Kovatchis and his wife and located and conducting business on Kovatchis’ property at 6224 West Diversey in Chicago, for negligently removing snow, negligently designing the driveway, and negligently blocking the sidewalk. The trial court entered summary judgment for Kovatchis, concluding as a matter of law that Dory was a trespasser and that Kovatchis did not owe her any duty. Dory appeals, arguing that Kovatchis owed her a duty of reasonable care under the circumstances. For the reasons below, we reverse the summary judgment for Kovatchis and the case is remanded for further proceedings consistent with the views of this opinion.

On January 5, 1985, as Dory was walking on a public sidewalk parallel to Kovatchis’ property, she encountered a van owned either by Kovatchis or Farmers Pride blocking the sidewalk. We will refer to the van as being owned by Kovatchis since Farmers Pride was unincorporated at the time of Dory’s injury. It is uncontroverted that the van was used for both business and personal purposes by Kovatchis and his son Tony, who was also an employee of Farmers Pride. At the time of Dory’s injury, the van that blocked the sidewalk had been parked by Tony, who was using the van with Kovatchis’ permission.

When Dory encountered Kovatchis’ van blocking the sidewalk, she stopped and looked for an alternate route. The only other path she found was across Kovatchis’ icy and sloping driveway. As Dory stepped onto Kovatchis’ driveway, she slipped and fell on an accumulation of ice, which had been covered by a dusting of snow. The trial court had granted Kovatchis’ motion for summary judgment, finding that Dory was a trespasser and that Kovatchis, therefore, did not owe her a duty of care.

Dory argues that Kovatchis owed her a duty of reasonable care under the circumstances. We agree. The sidewalks belong to the public, and the public primarily has the right to the free and unobstructed use thereof. (Garibaldi & Cuneo v. O’Connor (1904), 210 Ill. 284, 287, 71 N.E. 379.) Kovatchis, therefore, had a duty to provide a safe, unobstructed passage over the public sidewalk, which was adjacent to his property. This duty is exemplified by the Municipal Code of Chicago, section 27 — 311(a)(10) (1984), which provides that it shall be unlawful for the operator of any vehicle to stop, stand or park such vehicle except when necessary to avoid other traffic or in compliance with directions of a police officer or official traffic sign or signal on any sidewalk. (See Chicago Municipal Code §27 — 311(a)(10) (1984).) It is overwhelmingly obvious that the purpose of the ordinance is to insure that pedestrians have a safe and unobstructed passage over public sidewalks which are adjacent to private property. In Garibaldi & Cuneo v. O’Connor (1904), 210 Ill. 284, 287, 71 N.E. 379, the court imposed liability on a landowner where the landowner had failed to provide such safe and unobstructed passage and a pedestrian was injured as a result on the obstructed sidewalk. Liability has also been imposed even where the injury did not occur on the sidewalk itself, but rather on the alternate route, which an obstruction required the pedestrian to use. (Sweat v. Aircraft & Diesel Equipment Corp. (1948), 335 Ill. App. 177, 81 N.E.2d 8.) Therefore, this court holds that Kovatchis owed Dory an affirmative duty to provide safe and unobstructed passage over the sidewalk adjacent to his property.

Kovatchis breached his duty. It is uncontroverted that Kovatchis’ sidewalk was blocked by Kovatchis’ (or Kovatchis’ unincorporated business entity’s) van, which was being used by Kovatchis’ son with Kovatchis’ permission. Kovatchis’ failure to provide safe and unobstructed passage over the sidewalk adjacent to his property constituted a breach of his duty to Dory. In reaching this conclusion, we distinguish the facts of this case from a situation in which the blockage of a sidewalk is caused by the unauthorized acts of third parties.

Kovatchis’ breach of his duty to provide safe and unobstructed passage over the sidewalk adjacent to his property was the proximate cause of Dory’s injury. It is uncontroverted that Dory was wrongfully forced off and excluded from the public sidewalk as a result of the van blocking the sidewalk. It is also uncontroverted that she had to seek an alternate route. While Kovatchis suggests that at least one other route may have been available to Dory, he does not argue that Dory acted unreasonably by entering Kovatchis’ driveway to go around the van. Furthermore, in this court’s opinion, as a matter of law, it was foreseeable that a reasonable person would walk around the van since the sidewalk was blocked. It is also uncontroverted that the driveway was sloped and icy, that the ice was hidden by a thin layer of snow drift, and that the slope and hidden ice caused Dory to slip and fall, which resulted in her injuries. Consequently, this court holds that Kovatchis’ breach of his duty to provide safe and unobstructed passage over the sidewalk adjacent to his property was the proximate cause of Dory’s injuries.

In conclusion, the trial court erroneously determined that, as a matter of law, Dory was not owed a duty and improperly granted Kovatchis summary judgment. The trial court should have found that Kovatchis owed Dory a duty to provide safe and unobstructed passage over the sidewalk adjacent to his property. It was foreseeable that a reasonable person would walk around a vehicle parked on a driveway in a manner which blocked the sidewalk. Kovatchis’ failure to satisfy this duty was the proximate cause of Dory’s injuries. The summary judgment for Kovatchis is reversed, and the case is remanded for further proceedings consistent with the views expressed in this opinion.

Reversed and remanded.

BUCKLEY, P.J., and MANNING, J., concur.


author: PRESIDING JUSTICE DiVITO

text:
    FIRST NATIONAL BANK OF CICERO, Plaintiff and Counterdefendant-Appellee, v. LOUIS J. SYLVESTER, Defendant and Counterplaintiff-Appellant.
    First District (2nd Division)
    No. 1—88—3494
    Opinion filed April 10, 1990.
    Rehearing denied May 16, 1990.

      Jenner & Block, of Chicago (Thomas R. Muir on, Jr., and Bradley P. Nelson, of counsel), for appellant.
    Schwartz, Cooper, Kolb & Gaynor, of Chicago (Martin W. Salzman and Eric S. Rein, of counsel), for appellee.
   PRESIDING JUSTICE DiVITO

delivered the opinion of the court:

The First National Bank of Cicero (the Bank) sued Allied Mechanical Industries, Inc. (Allied), and Louis J. Sylvester, Allied’s president and sole shareholder, to collect approximately $380,000 due on a promissory note executed by Allied and guaranteed by Sylvester. Sylvester filed a counterclaim seeking $3.5 million in damages under a theory of promissory estoppel or, alternatively, as a result of an alleged breach by the Bank of a line of credit agreement with Allied. The trial court granted the Bank’s motion for summary judgment on the amended complaint and on Sylvester’s counterclaim and Sylvester appealed.

The issues raised are (1) whether summary judgment in favor of the Bank on the amended complaint was improperly granted; (2) whether summary judgment in favor of the Bank on Sylvester’s counterclaim was improperly granted; (3) whether Sylvester waived certain claims by failing to raise them in the trial court; and (4) whether Sylvester had standing to bring the counterclaim against the Bank. We reverse and remand the cause to the trial court.

Before filing for bankruptcy in 1986, Allied was in the business of fabricating and installing heating, ventilating, and air-conditioning systems in commercial and industrial buildings. Sylvester started with Allied in 1945 and bought the company in 1972. Between 1972 and 1976, Sylvester was Allied’s president and sole shareholder.

For 20 years prior to 1980, Allied banked at the Pioneer Trust and Savings Bank (Pioneer). Allied had a line of credit at Pioneer between $400,000 and $500,000. In June 1980, William T. Giova and another representative of the First National Bank of Cicero visited Sylvester for the purpose of soliciting Allied’s banking business. Sylvester explained that he was looking for a line of credit at an established bank and described Allied’s business and long-term credit needs. Sylvester explained that Allied needed “a line of operating credit” on an ongoing basis, so that funds would be immediately available, if necessary, to purchase equipment or otherwise operate the business. Giova asked Sylvester how much money Allied needed for its line of credit, Sylvester suggested $600,000, and was told that would be “no problem.” Sylvester then agreed to move his accounts from Pioneer to the First National Bank of Cicero.

On June 20, 1980, the Bank’s loan committee approved a $650,000 line of credit for Allied. The Bank gave Sylvester a written memorandum verifying the $650,000 line of credit, setting forth the formula for calculating the interest charged, and describing the security and guaranty required to secure the line of credit. There was no agreement as to the length of time the line of credit would be extended. The parties agreed, however, that “Allied could draw on the line of credit as needed.” The line of credit was “asset-based,” meaning that the Bank loaned money to Allied in exchange for a security interest in Allied’s assets. The line of credit was originally secured by Allied’s existing and future accounts receivable and inventory and by Sylvester’s personal guaranty.

On several occasions from June 1980 through January 1986, Allied borrowed money under the line of credit. Allied borrowed a total of $1,040,000 on a revolving basis. Each time Allied borrowed money, Sylvester executed a promissory note on Allied’s behalf for the amount of the loan. The promissory notes provided that amounts borrowed were due in 90 days, but up until January 1986, the Bank regularly renewed Allied’s outstanding notes.

According to Sylvester, he communicated regularly with officers of the Bank concerning Allied’s business, its work in progress, and the construction industry in general. Allied regularly supplied the Bank with financial statements and tax returns, invited the Bank to review its records, and submitted to an outside audit at the Bank’s request. Allied regularly repaid the money it borrowed from the Bank, making regular payments on both principal and interest, and was “always current” on all of its loans. On April 13, 1981, Giova stated in a letter to Allied’s bonding agent that Allied “has both an unsecured and secured line of credit with us in a high 6 figure amount” and “is valued by us as an excellent account relationship and we are pleased to be of service.”

According to William Spoo, a senior vice-president at the Bank, Allied’s compliance with the Bank’s requests for information were “sporadic” and, since December 1983, Allied’s indebtedness “was in a work-out situation.”

After a series of meetings in the fall of 1982, the Bank agreed to increase Allied’s line of credit from $650,000 to $800,000. On October 4, 1982, Sylvester assigned to the Bank Allied’s beneficial interest in a certain land trust, executed a new financing statement and security agreement pledging all of Allied’s inventory, accounts receivable, and other property as security for both past and future advances to Allied, and agreed in writing to personally guarantee past and future loans to Allied up to the amount of $800,000. On November 18 or 19, 1982, the Bank consolidated Allied’s indebtedness into two 90-day notes, one for $159,268.53 and the other for $550,000.

The remaining facts are largely disputed. The Bank alleged in its answer to Sylvester’s counterclaim that Allied continued to draw on its line of credit through May 1983, but that after May 1983 the line of credit ceased to exist and was extended only “on 90-day payment terms.” In its reply brief in support of its motion for summary judgment, the Bank alleged that the line of credit had been terminated one year earlier, in May 1982. In any event, the Bank has never alleged that it informed Sylvester or Allied specifically that it had terminated the line of credit. Spoo stated in his affidavit, however, that “[sjince December, 1983, [he] advised Sylvester, on numerous occasions, that the Allied indebtedness was in a work-out situation and that refinancing should be sought through other financial institutions.” Sylvester denied in his affidavit that Spoo or any other representative of the Bank gave him such advice.

On this appeal, the Bank asserts that the termination of the line of credit agreement coincided with the loan consolidation on November 18 or 19, 1982. The $159,268.53 note was paid in full on December 6, 1983. The $550,000 note required Allied to make monthly payments of $3,000 and contained no provisions for the borrowing of additional money. The Bank asserts that there is evidence in Sylvester’s deposition testimony that he understood in August 1984 and again in February 1986 that his line of credit had been terminated. At his deposition, Sylvester testified that in August 1984 he sought additional funds to meet his payroll, went to the Bank, and requested a “separate line of credit.” He also testified that in February 1986, when he wanted to borrow $200,000, he “felt that the [consolidated] note should stand as it was” and so requested “another line of credit.”

Sylvester asserts that in the spring of 1984, in the midst of a recession in the construction industry, he spoke with Spoo, telling him that if his line of credit would continue to be available, he would personally invest additional mohey into Allied and would spend the money necessary to keep Allied’s key personnel on the payroll so that Allied would be ready to take advantage of improved business conditions when the industry turned around. According to Sylvester, Spoo agreed with the plan and never once said that the line of credit agreement had been terminated. On April 14, 1984, and October 24, 1984, Sylvester executed personal guarantees in consideration of the Bank’s agreement to continue the line of credit. Sylvester asserts that in reliance on Spoo’s representations, he invested $440,000 of his own money into Allied.

In its motion for summary judgment, the Bank admitted that the April 14, 1984, guaranty was executed by Sylvester “in consideration of advances made or thereafter to be afforded to Allied.” The Bank, however, asserts that Spoo specifically denied Sylvester’s request in 1984 for additional funding, never made any agreement at that time to lend Sylvester money in the future, and stated only that “[w]hen you need it, we’ll discuss it.”

In November 1985, Sylvester told the Bank that Allied was bidding on work to be performed at a Ramada Inn under construction in Naperville, Illinois. Although Allied was awarded a contract, the Bank denies that any Bank representative saw the contract or was aware of its terms. The Bank asserts that Sylvester made a general request for money to cover the Ramada Inn job, but was turned down and told that the matter would be discussed when Allied made a specific request.

In January 1986, Allied specifically requested a $200,000 line of credit for the Ramada Inn project. As noted above, Sylvester stated at his deposition that he requested “another line of credit” because he felt that the consolidated note evidencing his earlier indebtedness “should stand as it was.” Sylvester told the Bank that he expected to earn a profit of $100,000 on the project and that he believed the construction industry was turning around. Allied had already drawn about $400,000 from the line of credit and there is some dispute as to whether Allied was in default on any of its loans at that time.

Sylvester asserts that in February 1986, the Bank told him for the first time that it would not loan Allied the $200,000 for the Ramada Inn project because the Bank was no longer in the business of making construction loans. Sylvester offered to further collateralize the loan, but the Bank still refused to lend Allied the money.

Sylvester maintains that because the Bank refused to finance the Ramada Inn project without prior notice, Allied was unable to obtain alternative financing and was forced to default on its subcontract. Allied was subsequently unable to continue in business and eventually filed for bankruptcy. Sylvester claims he lost his entire investment of approximately $3 million.

The Bank refused to renew Allied’s note when it became due on April 3, 1986. On July 8, 1986, after Allied refused to pay the note, the Bank sued Allied and Sylvester, as guarantor, for the balance due on the note, plus interest, attorney fees, and costs. Sylvester counterclaimed, alleging that the Bank wrongfully refused to extend credit for the Ramada Inn project after inducing him to rely on representations that a line of credit was available. The trial court granted the Bank’s motion for summary judgment on its amended complaint and on Sylvester’s counterclaim and this appeal followed.

I

Sylvester maintains first that the trial court improperly granted summary judgment in favor of the Bank on the amended complaint. He argues that the Bank breached an enforceable line of credit agreement with Allied by refusing in bad faith to loan Allied the money for the Ramada Inn project in February 1986. The Bank’s conduct, he maintains, released him from his guaranty. Sylvester argues that, at a minimum, questions of fact were presented precluding summary judgment.

The Bank relies on a single “termination” theory as support for the trial court’s decision. The Bank argues that the trial court granted summary judgment in its favor, not because the line of credit agreement was unenforceable, but rather because the agreement had been terminated some time before February 1986. This conclusion, the Bank maintains, is amply supported by the record. Because there was no agreement in effect at the time the loan was refused, the Bank continues, the loan was properly denied and Sylvester was not released from his guaranty.

We believe, however, that whether the line of credit agreement had been terminated by the time of Allied’s February 1986 loan request was a question for the trier of fact. The Bank itself is seemingly unsure of the date of termination, arguing first that the agreement terminated in 1983 and then arguing that the agreement terminated in 1982 when Allied’s loans were consolidated. In any event, each contention is contradicted by evidence in the record that in 1984 Sylvester executed additional personal guarantees to keep the line of credit open and discussed the terms of the agreement with William Spoo.

Moreover, contrary to the Bank’s assertion, Sylvester’s deposition testimony that in February 1986 he sought “another line of credit” and evidence that Sylvester requested financing in 1984 and Spoo stated “[w]hen you need it, we’ll discuss it,” was not sufficient to support summary judgment in favor of the Bank. Sylvester has consistently maintained in this case that he believed up until February 1986 that Allied had an open line of credit with the Bank. He asserts that by requesting “another line of credit,” he simply meant that he should receive a separate promissory note. He argues that Spoo’s response to his 1984 request was consistent with the terms of the asset-based lending agreement under which the Bank determined whether Allied has pledged sufficient security before extending additional credit. We agree that the meaning of Sylvester’s statements is open to interpretation. It follows that the question of whether the line of credit agreement had terminated should have been left for the trier of fact.

We note that in addition to the Bank’s termination theory, the trial court’s decision may also be affirmed on the ground that the line of credit agreement was unenforceable, or on the ground that the Bank did not act in bad fact. As discussed below, however, we believe that each theory presents a material question of fact precluding summary judgment.

The material terms of a line of credit agreement include the intended duration of the agreement; the applicable rate of interest or the basis for ascertaining the rate of interest; the duration or date for maturity of the loans; and the mode or rate of repayment. (Carrico v. Delp (1986), 141 Ill. App. 3d 684, 688, 490 N.E.2d 972; McErlean v. Union National Bank (1980), 90 Ill. App. 3d 1141, 1146, 414 N.E.2d 128.) In this case, the trial court stated that the line of credit agreement “cannot be considered a contract since it lacks any indication as to duration.” Although it is not clear whether this conclusion was the basis for the trial court’s decision, for the reasons given below, the question of the agreement’s duration should have been left for the jury.

Ordinarily, where no definite time is fixed during which an ex-ecutory contract shall continue in force, it is terminable at the will of either party. (Gage v. Village of Wilmette (1924), 315 Ill. 328, 146 N.E. 325; Carrico v. Delp, 141 Ill. App. 3d at 688-89.) This rule does not apply where the contract is not fully executory. (See Carrico v. Delp, 141 Ill. App. 3d at 689.) Rather, when consideration for a promise requiring continuing performance has been partly executed, a court will be reluctant to hold that the promise is determinable at the promisor’s pleasure. (Carrico v. Delp, 141 Ill. App. 3d at 689; 1 S. Williston, Contracts §38, at 117 (3d ed. Jaeger 1957).) In such cases, the duration of the agreement is determined by the agreement as a whole, based on what is reasonable, and is a question for the trier of fact. See Carrico v. Delp, 141 Ill. App. 3d at 689; Ricke v. Ricke (1980), 83 Ill. App. 3d 1115, 405 N.E.2d 351.

In Carrico, for example, the plaintiffs maintained that the defendant bank wrongfully refused to provide financing under a line of credit agreement established to provide operating capital for the plaintiffs’ farm. The bank argued that the agreement was unenforceable because it lacked a durational term, and the trial court agreed, dismissing the complaint. On appeal, the court rejected the bank’s argument, however, because the plaintiffs had pledged collateral to secure existing and future obligations. The court stated: “Construing the contract to be terminable at will would mean that the plaintiffs obtained no benefit from pledging the additional security.” (Carrico v. Delp, 141 Ill. App. 3d at 689.) The court concluded that the duration of the agreement was a question for the trier of fact.

In this case, the record shows that, like the plaintiffs in Carrico, Allied pledged additional collateral as security in 1982 and again in 1984. In 1982, Allied assigned to the Bank Allied’s beneficial interest in a land trust. In April 1984, Sylvester executed additional personal guarantees to allow Allied to obtain credit from the Bank “from time to time.” The guarantees were to be applied to debts “now existing or hereinafter created or arising.” To hold that the line of credit agreement was terminable at will despite the additional collateral pledged by Allied would be contrary to Carrico and to settled principles of contract law. As in Carrico, the duration of the line of credit agreement was a question for the trier of fact.

Finally, a question of fact was presented regarding the Bank’s alleged breach of the line of credit agreement’s covenant of good faith and fair dealing. Every contract implies good faith and fair dealing between the parties. (Martindell v. Lake Shore National Bank (1958), 15 Ill. 2d 272, 286, 154 N.E.2d 683.) Good faith between the contracting parties requires the party vested with contractual discretion to exercise it reasonably, not arbitrarily, capriciously, or in a manner inconsistent with the reasonable expectations of the parties. Carrico v. Delp, 141 Ill. App. 3d at 690.

In this case, the question of the Bank’s good faith was not considered by the trial court. It is plain that the Bank has some degree of discretion in extending credit to Allied, because under the agreement, the Bank must be satisfied that Allied’s inventory, accounts receivable, and other assets are sufficient to secure the additional money loaned. Whether the Bank exercised its discretion reasonably, however, was a question for the trier of fact. See Osten v. Shah (1982), 104 Ill. App. 3d 784, 786, 433 N.E.2d 294.

In considering whether the Bank acted reasonably, the trier of fact should consider, at a minimum, the profitability of Allied’s business and any evidence that Allied was not in default at the time the credit was refused. (See, e.g., Champaign National Bank v. Landers Seed Co. (1988), 165 Ill. App. 3d 1090, 1098, 519 N.E.2d 957; Reid v. Key Bank of Southern Maine, Inc. (1st Cir. 1987), 821 F.2d 9.) Certainly, the reason given by the Bank in this case for refusing the February 1986 request, namely, that it “was not making construction loans,” is not sufficient to support summary judgment in favor of the Bank, given the evidence in the record that the Ramada Inn project would have been profitable and Allied was not in default at the time of the request.

II

Sylvester maintains next that the trial court improperly granted summary judgment in favor of the Bank on the counterclaim. He argues that he is entitled to recover damages either because the Bank breached an enforceable line of credit agreement or under the doctrine of promissory estoppel.

Initially, with respect to whether the Bank breached an enforceable line of credit agreement, for the same reasons discussed in part I, we believe there were questions of fact precluding summary judgment.

With respect to Sylvester’s promissory estoppel argument, we note that the elements of promissory estoppel are (1) a promise, (2) which the promisor should reasonably expect to induce action or forbearance of a definite and substantial character on the part of the promissee, (3) which induces such action or forbearance, and (4) which must be enforced in order to avoid injustice. (Lawrence v. Board of Education of School District 189 (1987), 152 Ill. App. 3d 187, 201, 503 N.E.2d 1201.) Each of these elements presents a question for the trier of fact. (Bank Computer Network Corp. v. Continental Illinois National Bank & Trust Co. (1982), 110 Ill. App. 3d 492, 500, 442 N.E.2d 586.) An express promise is not required. (Bank Computer Network Corp. v. Continental Illinois National Bank & Trust Co., 110 Ill. App. 3d at 497.) Rather, the promise may be inferred from conduct and words. See Lawrence v. Board of Education of School District 189, 152 Ill. App. 3d at 201.

In this case, the trial court concluded that “[t]he actions of the parties *** are inconsistent with any belief that the [Bank] had unambiguously agreed to further fund the lending obligation.” The trial court apparently based its conclusion on Spoo’s statements that the relationship between Allied and the Bank was in a “work-out situation,” Spoo’s statement “[w]hen you need it, we’ll discuss it” in response to Sylvester’s loan request, and Sylvester’s deposition testimony that he sought “another line of credit” for the Ramada Inn project. As noted in part I, however, this evidence was not sufficient to support summary judgment in favor of the Bank on the issue of the termination of the line of credit agreement. Certainly, if there was a question of fact precluding summary judgment on the issue of whether the line of credit agreement was in effect in February 1986, there was also a question of fact precluding summary judgment on the issue of whether the Bank merely promised to continue financing.

The trial court did not consider the other elements of promissory estoppel, but it is plain that there were questions of fact precluding summary judgment regarding these elements as well. There is uncontroverted evidence that Allied transferred its accounts to the Bank from the Pioneer Trust & Savings Bank in reliance on the line of credit agreement, that Sylvester invested money in Allied in 1984 following what he believed were reassurances from the Bank that the line of credit was open, and that Allied did not seek financing from other sources for the Ramada Inn project. A jury could reasonably infer the elements of promissory estoppel from this evidence.

Although we believe summary judgment on the counterclaim was improvidently granted, we express no opinion as to the extent of recoverable damages or whether any damages recovered should inure to the benefit of Allied’s creditors under the Bankruptcy Code.

III

The Bank maintains that Sylvester waived his breach of contract and promissory estoppel claims by failing to raise them in the trial court. The Bank argues that the only claim raised in the trial court was a claim for breach of a written contract, so that Sylvester cannot now raise issues based on any oral agreements or the doctrine of promissory estoppel. We disagree.

The record shows that Sylvester raised the breach of contract and equitable estoppel issues in the trial court. The Bank admitted as much in its response to Sylvester’s motion for reconsideration. The record also shows that the trial court considered both claims, finding that an agreement did not exist in February 1986 and that the elements of promissory estoppel had not been established. Finally, there is no support for the Bank’s contention that Sylvester’s position on this appeal is not based on a written contract. Sylvester argues on this appeal, as he did in the trial court, that the Bank breached the written line of credit agreement. Sylvester relies on custom, course of dealing, and partial performance only to establish that the contract is not unenforceable because it lacks a durational term.

IV

Finally, the Bank maintains that Sylvester lacked standing to bring a counterclaim based on breach of contract because he did not suffer a direct injury. The Bank also maintains that Sylvester’s affirmative defense to the amended complaint was not raised in a timely fashion.

We conclude, however, that the Bank waived the standing issue by failing to raise it in the trial court. (See Local Union 134, International Brotherhood of Electrical Workers v. Chicago Transit Authority (1979), 68 Ill. App. 3d 855, 386 N.E.2d 303.) In any event, guarantors who suffer “direct injury” have standing to “pursue their own remedies.” (See Mid-State Fertilizer Co. v. Exchange National Bank (7th Cir. 1989), 877 F.2d 1333.) Here, Sylvester alleges that he lost his investment in Allied as a result of the Bank’s breach of its duty of good faith and fair dealing. There is no contrary evidence in the record, no doubt because the issue was not raised below.

The Bank likewise waived its pleading objection to the defense raised by Sylvester to the amended complaint. Sylvester raised the defense of the Bank’s bad faith in response to the Bank’s motion for summary judgment. The Bank failed to object on the motion for summary judgment and cannot argue for the first time on appeal that the defense was untimely.

For the foregoing reasons, the judgment of the circuit court of Cook County is reversed and this cause is remanded to the trial court.

Reversed and remanded.

BILANDIC and SCARIANO, JJ., concur.


author: JUSTICE SCARIANO

text:
    GUENTHER LINDHOLM, Plaintiff-Appellant, v. LONNIE WILSON, Defendant-Appellee.
    First District (2nd Division)
    No. 1—89—0768
    Opinion filed April 10, 1990.

      Law Offices of Thomas P. McLaughlin, of Chicago (Michael H. Hamilton, of counsel), for appellant.
    Torshen, Schoenfield & Spreyer, Ltd., and Garretson & Santora, both of Chicago (Jerome H. Torshen, Abigail K. Spreyer, and William B. Kohn, of counsel), for appellee.
   JUSTICE SCARIANO

delivered the opinion of the court:

Plaintiff brought this action seeking compensation for property damage caused to his automobile by defendant’s allegedly negligent driving. The trial judge held that plaintiff had failed to disclose an expert witness in violation of Supreme Court Rule 220 (107 Ill. 2d R. 220) and barred him from introducing expert testimony regarding damages, thus entitling defendant to summary judgment. We affirm the judgment of the trial court.

Plaintiff filed a complaint on March 15, 1984, seeking $13,258.03 property damages from defendant for the complete destruction of his automobile in a collision which occurred on February 8, 1983. Defendant filed interrogatories and a notice to produce on June 22; the pertinent interrogatories are set forth below:

“3. State the full name and address of each person [not an occurrence witness] who was present or claims to have been present at the scene immediately before, at the time of, or immediately after said occurrence:
* * *
5. State any and all other [aside from repair costs] expenses or losses you claim as a result of said occurrence.
* * *
9. List the names and addresses of all other persons (other than yourself and persons heretofore listed or specifically excluded) who have knowledge of the facts of said occurrence or of the injuries and damages following therefrom.”

Furthermore, in his request to produce, defendant specifically asked for “[a] list of the names, addresses and specialties of all expert witnesses omitting all persons already mentioned above.”

In his answers, which were filed October 10, 1984, plaintiff’s response to interrogatory 3 was, “None, investigation continues”; his response to interrogatory 5 was, “Value of automobile and rental expenses of $53.03”; and plaintiff’s answer to interrogatory 9 did not mention an insurance adjuster or any other insurance company employees who had knowledge of the accident or damages, despite the fact that plaintiff had at least initiated a claim with his insurer at this time. Plaintiff similarly failed to produce the requested list of expert witnesses.

After a lengthy delay apparently due to plaintiff’s failure to appear for his deposition, and two dismissals for want of prosecution which were vacated, both sides answered ready for trial on February 24, 1989. On that date, defendant presented a motion for summary judgment on the ground that plaintiff had failed to identify a property damage expert pursuant to Illinois Supreme Court Rule 220 (107 Ill. 2d R. 220), and that the resulting bar to expert testimony prevented plaintiff from proving his damages. A stipulated statement of facts included in the record in lieu of a transcript of proceedings pursuant to Supreme Court Rule 323(d) (107 Ill. 2d R. 323(d)) indicates that plaintiff raised two arguments in defense at the hearing. First, plaintiff stated that he planned to use an adjuster from the Safeco Insurance Company, his insurer, to testify regarding the value of plaintiff’s vehicle, and acknowledged that he had not previously disclosed this to defendant; however, plaintiff insisted that the adjuster was not an expert witness within the meaning of Rule 220. Second, plaintiff contended that he should be permitted to introduce the adjuster’s report into evidence as a business record, and that the adjuster could properly testify for the purpose of establishing a foundation for the admission of the report. The trial judge rejected both arguments and granted defendant’s summary judgment motion.

I

Plaintiff contends the testimony of the insurance adjuster in this case is not subject to exclusion pursuant to Rule 220, which states in pertinent part:

“(b) Disclosure
(1) Expert Witness. Where the testimony of experts is reasonably contemplated, the parties will act in good faith to seasonably:
(i) ascertain the identity of such witness, and
(ii) obtain from them the opinions upon which they may be requested to testify.
In order to insure fair and equitable preparation for trial by all parties the 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. *** 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.)

He asserts that the insurance adjuster in this case was not retained to render an opinion at trial, as required by the explicit language of Rule 220. He further notes that the adjuster completed his report over a year before this suit was filed and that his evaluation was more closely linked with the processing of plaintiff’s insurance claim than with the instant litigation. The insurance adjuster is instead claimed to be more similar to a treating physician, who has been held not to be within the reach of Rule 220. Tzystuck v. Chicago Transit Authority (1988), 124 Ill. 2d 226, 529 N.E.2d 525.

While this interpretation of Rule 220 is not completely persuasive and may violate the spirit of the rule, it is not necessary to reach this question here. Even if Rule 220 does not apply, the insurance adjuster’s testimony may properly be excluded as a discovery sanction pursuant to Supreme Court Rule 219(c) (107 Ill. 2d R. 219(c)). We note that a judgment “may be sustained upon any ground warranted, regardless of whether it was relied on by the trial court and regardless of whether the reason given by the trial court was correct.” Material Service Corp. v. Department of Revenue (1983), 98 Ill. 2d 382, 387, 457 N.E.2d 9, 12.

Supreme Court Rule 219(c) provides for a broad range of sanctions for discovery violations and specifically mentions barring a witness’ testimony. (107 Ill. 2d R. 219(c)(iv).) There is a myriad of reported cases which have consistently recognized that failing to advise the opposing party of potential witnesses in response to interrogatories can lead to the exclusion of that witness’ testimony at trial. (Dempski v. Dempski (1963), 27 Ill. 2d 69, 187 N.E.2d 734; Ziekert v. Cox (1989), 182 Ill. App. 3d 926, 538 N.E.2d 751; Ferenbach v. DeSyllas (1977), 45 Ill. App. 3d 599, 359 N.E.2d 1214.) In deciding whether exclusion is proper, a court should consider “surprise to the opposing party; whether the omission was intentional or inadvertent; the nature of the witness’ testimony; timeliness of the objection; opportunity of the opposing party to interview or depose the witness prior to trial; and prejudice resulting to the opposing party by virtue of the testimony.” Jensen v. Chicago & Western Indiana R.R. Co. (1981), 94 Ill. App. 3d 915, 928, 419 N.E.2d 578, 590.

Consideration of these factors leads inescapably to the conclusion that the opinion testimony of the adjuster should be excluded pursuant to Rule 219(c). The accident in this case occurred on February 8, 1983. Plaintiff filed a response to defendant’s interrogatories on October 10, 1984, long after his insurance company completed its investigation and the processing of his claim. The response failed to give any information whatsoever regarding the name of plaintiff’s insurer or the identity of other persons who had “knowledge of the facts of said occurrence or of the injuries and damages following therefrom,” thus ignoring several direct questions soliciting this material. Such evasiveness can only be interpreted as an intentional attempt to disadvantage the opposing party. Full disclosure would have given defendant ample opportunity to depose the adjuster before trial, an important consideration since plaintiff’s car was completely destroyed and no tangible evidence of diminution of value such as a paid repair bill could have been produced.

This is not to say that the factors set out in Jensen are completely in defendant’s favor; defendant is hardly without fault in this matter. Although plaintiff responded to defendant’s interrogatories in October 1984, the record does not indicate that defendant raised any objections regarding the response until the hearing on February 24, 1989, over four years later. The fact that a simple letter or telephone call may have prompted a more complete response and greatly reduced litigation delays does not appreciably enhance defendant’s cause before this court. However, the Jensen factors on balance sufficiently favor defendant to offset this rather glaring deficiency.

Plaintiff’s blatant discovery violations should not be countenanced. We affirm the trial judge’s decision excluding the adjuster’s opinion testimony pursuant to Rule 219(c).

II

We next consider whether it necessarily follows that, since the adjuster cannot testify as an expert witness, his written report similarly cannot be .used in evidence to establish damages. Plaintiff contends the report is admissible as a business record pursuant to Supreme Court Rule 236 (107 Ill. 2d R. 236), despite the exclusion of the adjuster’s opinion testimony at trial. Rule 236 provides:

“Any writing or record, whether in the form of any entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence, or event shall be admissible as evidence of the act, transaction, occurrence, or event, if made in the regular course of any business, and if it was the regular course of the business to make such a memorandum or record at the time of such an act, transaction, occurrence, or event or within a reasonable time thereafter. All other circumstances of the making of the writing or record, including the lack of personal knowledge by the entrant or maker, may be shown to affect its weight, but shall not affect its admissibility.” (107 Ill. 2d R. 236.)

Defendant does not claim that the requirements of the rule have not been met in this case; rather, he asserts that allowing the adjuster’s report into evidence as proof of damages would permit plaintiff to avoid the effect of a valid discovery sanction.

We agree that plaintiff should not be permitted to extricate himself through a subversion of Rule 236. In James v. Yasunaga (1987), 157 Ill. App. 3d 450, 510 N.E.2d 531, appeal denied (1987), 116 Ill. 2d 559, 515 N.E.2d 109, plaintiff included in his response to defendant’s summary judgment motion a report prepared by an expert not revealed within the court-ordered time limit for the disclosure of expert witnesses. He argued that the trial judge erred in excluding the report because it was properly admissible as a counteraffidavit filed in opposition to the summary judgment motion. The appellate court was not persuaded:

“We have already determined the plaintiffs cannot use the witness in question at trial according to the court’s order of March 25, 1986, and the literal terms of Rule 220. It would then be inconsistent to permit that same witness’ opinion to be used to form the basis of a counteraffidavit in opposition to a motion for summary judgment.” 157 Ill. App. 3d at 459, 510 N.E.2d at 537.

This same reasoning leads us to conclude that the adjuster’s report in this case should not be admitted as a business record. The report was prepared by the same individual whose opinion testimony is barred by Rule 219(c) sanctions, and allowing use of the report would lead to a result fully as inconsistent as that which the appellate court wisely avoided in James.

Since the adjuster’s report was properly excluded, and plaintiff had no way of establishing damages at trial, we are required to affirm the trial judge’s grant of summary judgment in favor of defendant. (Ragan v. Protko (1978), 66 Ill. App. 3d 257, 383 N.E.2d 745 (unsubstantiated and uncertain opinion of owner as to value of damaged automobile not sufficient to establish amount of damages).) This case is indistinguishable from the many medical malpractice cases where discovery violations led to the exclusion of critical expert opinion testimony and ultimately the dismissal of the action for failure to establish the appropriate standard of care. See, e.g., Castro v. South Chicago Community Hospital (1988), 166 Ill. App. 3d 479, 519 N.E.2d 1069.

For the foregoing reasons, the judgment of the trial court is affirmed.

Affirmed.

DiVITO, P.J., and BILANDIC, J., concur.


author: JUSTICE WHITE

text:
    MARK WRIGHT et al., Plaintiffs-Appellants, v. CHICAGO TITLE INSURANCE COMPANY et al., Defendants-Appellees.
    First District (3rd Division)
    Nos. 1—88—3040, 1—89—0473 cons.
    Opinion filed April 11, 1990.

      Ronald J. Broida, of Goldstine & Broida, Ltd., .of. Summit, for appellants.
    Richard J. Hollander and Michael A. Klysh, both of Hollander & Hollander, of Chicago, for appellees.
   JUSTICE WHITE

delivered the opinion of the court:

Plaintiffs Mark and Rochelle Wright and defendants Daniel and Gail Shunk appeal from judgments entered by the circuit court. In case No. 1 — 88—3040, plaintiffs appeal orders granting defendants’ motion to dismiss two counts of plaintiffs’ complaint and entering summary judgment for Chicago Title Insurance Company on another count of the complaint. In No. 1 — 89—0473, plaintiffs and defendants have filed cross-appeals from the trial court’s order denying their section 2 — 611 petitions for sanctions. Ill. Rev. Stat. 1987, ch. 110, par. 2-611.

While the appeals were pending, plaintiffs entered into a settlement agreement with Chicago Title Insurance Company and plaintiffs’ appeal from the summary judgment was dismissed. The appeal from the order dismissing the action against defendants and the cross-appeals remain.

In March 1987, plaintiffs filed suit against defendants alleging breach of contract and fraud in connection with defendants’ sale of their home to plaintiffs.

The contract to purchase the house, located at 708 Gregford Road in Burr Ridge, Illinois, was entered into in August 1985. Paragraph 5 of the contract provided:

“Seller shall convey or cause to be conveyed to Buyer (in joint tenancy) or his nominee by a recordable stamped general warranty deed with release of homestead rights, good title to the premises subject only to the following ‘permitted exceptions’ if any *** (b) Special Assessments confirmed after this contract date ***.”

Paragraph 7 of the contract provided:

“Seller represents (a) that he has received no notice of any ordinance or building code violation or pending special assessment from any governmental body in connection with the premises ***.”

In their complaint, plaintiffs alleged that in 1984, one year prior to the sale, the Village of Burr Ridge designated the area in which defendants’ house was located a special service area and imposed a special service area tax on all property located in the area. Collection of the tax was to begin in 1985 and would continue for the following nine years. Plaintiffs alleged that at the time they entered into the contract to sell their house, defendants were aware of the special service area tax and, therefore, defendants’ representations that no special assessments existed were false and fraudulent.

Defendants filed a motion to dismiss plaintiffs’ fraud and breach of contract claims. Defendants pointed out that, by signing the contract, they represented only that they were unaware of any pending special assessments. Defendants argued that because a special service area tax is legally distinct from a special assessment, there was no basis for plaintiffs’ claim that defendants breached the contract and committed fraud when they represented that there were no special assessments pending in connection with the property.

The trial court granted defendants’ motion to dismiss. The court found as a matter of law that a special service area tax was not a special assessment and that, therefore, defendants did not breach their contract with plaintiffs.

Subsequently, defendants filed a petition, pursuant to section 2— 611 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2—611), seeking sanctions against plaintiffs. In their petition, defendants alleged that the allegations in plaintiffs’ complaint had no basis in the law and that plaintiffs’ purpose in filing the complaint was to harass, delay, and increase the costs of the litigation to defendants. In response, plaintiffs filed their own petition for sanctions against defendants, alleging that defendants’ petition for sanctions was frivolous and was filed solely to induce plaintiffs to abandon their appeal of the trial court’s order granting defendants’ motion to dismiss. Both plaintiffs’ and defendants’ petitions were denied without a hearing.

Plaintiffs and defendants appeal the trial court’s order denying their petitions for sanctions. Plaintiffs also appeal the dismissal of their fraud and breach of contract claims.

I

Plaintiffs contend that the fraud and breach of contract counts of their complaint were legally sufficient and that the trial court erred in granting defendants’ motion to dismiss those claims.

The grant or denial of a section 2 — 611 motion to dismiss is within the discretion of the trial court. (Spicer v. Coleman (1979), 72 Ill. App. 3d 631, 391 N.E.2d 46.) In ruling on a motion to dismiss in a breach of contract action, a trial court may determine whether the facts alleged constitute a breach of contract as a matter of law. (Kos v. Catholic Bishop (1942), 317 Ill. App. 248, 45 N.E.2d 1006.) Where the facts alleged demonstrate on their face that a plaintiff would not be entitled to recover, the complaint is properly dismissed. Winnett v. Winnett (1974), 57 Ill. 2d 7, 310 N.E.2d 1.

In the present case, the contract between plaintiffs and defendants indicates clearly and unambiguously that defendants represented only that no special assessments had been confirmed as of the date of the contract and that defendants had received no notice of any pending special assessments.

Where the language of a contract is unambiguous, the express provisions govern and there is no need for construction or inquiry as to the intention of the parties. (P.A. Bergner & Co. v. Lloyds Jewelers, Inc. (1986), 112 Ill. 2d 196, 492 N.E.2d 1288.) When contract terms are clear, they "will be given their clear and natural meaning. (McDonald’s Corp. v. Mazur (1984), 127 Ill. App. 3d 608, 469 N.E.2d 430.) We find that the clear and natural meaning of the contract terms used in the present case clearly supports the trial court's holding that defendants’ failure to disclose the existence of a special service area tax did not constitute a breach of contract as a matter of law.

Plaintiffs acknowledge that the language of the contract refers only to special assessments. However, plaintiffs argue that because the difference between special assessments (Ill. Rev. Stat. 1987, ch. 24, par. 9 — 2—43 et seq.) and special service area taxes (Ill. Rev. Stat. 1987, ch. 120, par. 1301 et seq.) is one of form, not substance, and because there are substantial similarities between the two, the use of the term “special assessment” in the contract should be construed as encompassing special service area taxes. We disagree.

The rights of parties to a contract are limited by the terms expressed in the contract; a court will not rewrite a contract to suit one of the parties, but will enforce the terms as written. (A.A. Conte, Inc. v. Campbell-Lowrie-Lautermilch Corp. (1985), 132 Ill. App. 3d 325, 477 N.E.2d 30.) There is a strong presumption against provisions that easily could have been included in the contract but were not. (Braeside Realty Trust v. Cimino (1985), 133 Ill. App. 3d 1009, 479 N.E.2d 1031; Ebrahim v. Checker Taxi Co. (1984), 128 Ill. App. 3d 906, 471 N.E.2d 632.) Thus, where a contract is clear and unambiguous, a court will not add terms simply to reach a more equitable agreement. National Tea Co. v. American National Bank & Trust Co. (1981), 100 Ill. App. 3d 1046, 427 N.E.2d 807.

In Illinois the use of a tax to finance special services provided to a particular area has been authorized since 1973, when the General Assembly enacted Public Act 78 — 901 and enacted sections 1 through 11 of “An Act to provide the manner of levying or imposing taxes ***” (Ill. Rev. Stat. 1973, ch. 120, pars. 1301 through 1311). Because the parties to a contract are presumed to have contracted with the knowledge of existing law (Schlosser v. Jursich (1980), 87 Ill. App. 3d 824, 410 N.E.2d 257), we must assume that plaintiffs were aware of the law authorizing the creation of special service area taxes when they entered into their contract with defendants. Accordingly, we will not add a provision to their contract requiring disclosure of such areas when the parties could have included such a requirement but did not.

Plaintiffs also argue that their complaint should not have been dismissed because it sufficiently alleged the elements of fraud by intentional misrepresentation or intentional concealment. Again we disagree.

To state a cause of action for fraud, a complaint must allege that: (1) the defendant made a representation of material fact; (2) the representation made was untrue; (3) the defendant knew or believed the representation to be untrue; (4) the plaintiff had a right to rely on the representation and in fact did so; (5) the representation was made for the purpose of inducing the plaintiff to act or refrain from acting; and (6) the representation led to the injury of the plaintiff. (Wolford v. Household Finance Corp. (1982), 105 Ill. App. 3d 1102, 435 N.E.2d 528.) In light of our finding that defendants’ representation that there were no special assessments was not untrue, it is clear that plaintiffs’ complaint fails to state a cause of action for fraud by misrepresentation.

It is also clear that plaintiffs’ complaint failed to allege facts sufficient to state a cause of action for fraud by concealment of a material fact. To state a cause of action for fraud arising from the concealment of an existing material fact, a complaint must allege that the concealment was done with an intent to deceive, under circumstances creating a duty to speak. Greene v. First National Bank (1987), 162 Ill. App. 3d 914, 516 N.E.2d 311.

Plaintiffs’ complaint alleges only that defendants made false representations that there were no special assessments; it contains no allegations that defendants had or breached any duty to disclose concealed facts. Therefore, we find that plaintiffs’ complaint fails to state a cause of action for fraud by concealment as well as for fraud by misrepresentation.

II

In their appeal, defendants contend that the trial court erred in dismissing their section 2 — 611 petition for sanctions and in failing to give a “detailed explanation” of its reasons for dismissing the petition. Plaintiffs argue that the court properly dismissed defendants’ petition for sanctions but erred when it dismissed their petition for sanctions. We affirm.

Under section 2 — 611, a person who signs a pleading represents that he has read the pleading and that to the best of his knowledge, information, and belief it is well grounded in fact and is warranted by existing law or a good-faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. If a person signs a pleading in violation of this motion, the court shall impose an appropriate sanction upon that person. Ill. Rev. Stat. 1987, ch. 110, par. 2—611.

The decision to impose sanctions pursuant to section 2— 611 is within the sound discretion of the trial court and the court’s determination will not be reversed on appeal absent an abuse of discretion. (Yassin v. Certified Grocers of Illinois, Inc. (1990), 133 Ill. 2d 458; Chabraja v. Avis Rent A Car System, Inc. (1989), 192 Ill. App. 3d 1074, 549 N.E.2d 872.) The purpose of section 2 — 611 is not to penalize unsuccessful litigants, and there is nothing in the statute that supports the imposition of sanctions simply because a particular argument or ground for relief is found to be unjustified. (See Koester v. Weber, Cohn & Riley, Inc. (1989), 193 Ill. App. 3d 1045; Chicago Title & Trust Co. v. Anderson (1988), 177 Ill. App. 3d 615, 532 N.E.2d 595.) The fact that plaintiffs did not prevail is not prima facie evidence that their complaint was entirely without foundation in the law. Chabraja, 192 Ill. App. 3d at 1081.

In Chabraja, this court affirmed the trial court’s dismissal of defendant’s petition for sanctions. Pointing out that the issue raised by plaintiff’s complaint was the legal effect of the express language of a contract and how that language should be interpreted, the court held that it could not be said that the complaint was not a good-faith argument for the extension, modification, or reversal of existing law. We find that a similar conclusion is required in the present case, where plaintiffs also sought interpretation of the language of a contract.

Although we find that the trial court properly dismissed defendants’ petition for sanctions, we do not find that the filing of the petition was so unwarranted that sanctions should be imposed against defendants. As we stated above, sanctions should not be imposed simply because a particular argument or ground for relief is found to be unjustified. (Anderson, 177 Ill. App. 3d at 622.) Accordingly, we find that the trial court did not err in dismissing plaintiffs’ petition for sanctions.

We also find no error in the trial court’s failure to give its reasons for denying the petitions. We have found that the trial court properly declined to impose sanctions against both plaintiffs and defendants and there is no basis for the argument that the court was required to give a detailed explanation of its actions.

For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

CERDA, P.J., and FREEMAN, J., concur.


author: JUSTICE FREEMAN

text:
    DAVID MYKYTIUK, a Minor, by his Father and Next Friend, Stephen Mykytiuk, Plaintiff-Appellee, v. RAYMOND D. STAMM et al., Defendants-Appellants.
    First District (3rd Division)
    No. 1—89—1088
    Opinion filed April 11, 1990.

      Roderick J. Bergin, of Chicago (John R. Fearon, of counsel), for appellants.
    Alfred D. Stavros, of Wheeling, for appellee.
   JUSTICE FREEMAN

delivered the opinion of the court:

Plaintiff David Mykytiuk, a minor, by his father and next friend, Stephen Mykytiuk, sued defendants, Raymond D. Stamm and Acco International, Inc. (Acco), for personal injuries sustained when plaintiff was struck by a car driven by Stamm and leased by Acco, Stamm’s employer. A jury trial resulted in a verdict for defendants. Plaintiff moved for and was granted a new trial by the trial court. Defendants appeal.

Plaintiff lived with his family in Wheeling, Illinois, on October 21, 1985, the day he was struck by defendants’ car. Hintz Road, a two-lane, east-west road ran past the Mykytiuk home, which was on the north side of the road. Plaintiff was five years old on October 21, 1985. His brother, Billy, was then 10 years old. Plaintiff’s theory of the case was that he was struck by defendants’ car while he and Billy were attempting to cross Hintz Road to await their school bus on the south side of the Road. Plaintiff further sought to prove that defendant Stamm had had a clear and unobstructed view as he travelled west down Hintz Road but failed to take any steps to avoid striking plaintiff, such as slowing down, applying his brakes, or moving into the eastbound traffic lane of Hintz Road. Plaintiff further sought to prove that he was struck in the right leg by the right front bumper of defendants’ car while attempting to return to the north side of Hintz Road after being warned by Billy of the approach of defendants’ car. Plaintiff attempted to prove the foregoing facts largely through Billy’s testimony. He also sought to corroborate Billy’s testimony as to the manner in which he was struck by defendants’ car through testimony of his treating physician.

Plaintiff called defendant Stamm as an adverse witness. During that examination, defendant Stamm testified that he noticed the Cook County sheriff’s police officer who investigated the accident at the scene take something from the right rear door of defendants’ car. He further testified that when he asked the officer what he was doing, the officer told him that he was taking hairs from where plaintiff had run into the side of the car. Finally, plaintiff testified that he did not see the hairs recovered by the officer.

Defendants, on the other hand, sought to prove that defendant Stamm had no reason to take any steps to avoid striking plaintiff because, when he first saw plaintiff and his brother, they were 8 to 10 feet from the side of Hintz Road. They further sought to prove that, as defendant Stamm approached the boys, he noticed plaintiff in a crouched position as if the boys were playing football and that plaintiff ran out onto Hintz Road as defendant Stamm came parallel to him and his brother after the latter gave plaintiff some kind of “hike” or “go” signal. Finally, defendants sought to prove that, upon running out onto the roadway, plaintiff struck the right rear passenger door of defendants’ car.

Defendants called Cook County sheriff’s police officer Norman Levin, who had investigated the accident at the scene. Levin testified that, upon examining defendants’ car, he found a clean spot on the right side of defendants’ otherwise dirty car. He also testified that he found hair fibers stuck to the car’s chrome moulding, about 30 inches from the ground. Levin further testified that he removed the fibers and put them in an envelope which he kept in a briefcase in his squad car. When asked by defense counsel where the envelope was, Levin stated that he had it in his pocket. When defense counsel then asked Levin to take the envelope from his pocket, plaintiff’s counsel objected.

In a sidebar conference, plaintiff’s counsel argued that defendants had not disclosed the hair fiber evidence prior to trial although plaintiff had filed a request to produce in April 1987. Defense counsel claimed that he did not learn of the existence of the evidence until August 1987 through the deposition testimony of defendant Stamm. Based on its belief in the existence of a continuing duty to disclose evidence sought in discovery, the trial court ruled the hair fiber evidence inadmissible and barred any further discussion about it. Although plaintiff’s counsel requested an instruction to the jury to disregard any reference to the hairs or the envelope, the trial court merely informed the jury that plaintiff’s objection to any discussion about the hairs was sustained. The next day, after an offer of proof by defendants as to Officer Levin’s testimony with regard to the hair fibers, the trial court stated that, had defendants been allowed to offer the envelope containing the hair fibers into evidence, it would have ruled it inadmissible for lack of foundation.

After the jury verdict for defendant, plaintiff moved for a new trial on two grounds. He first argued that defendants had committed prejudicial error in attempting to introduce, without proper foundation, the envelope containing the hairs which Officer Levin had allegedly removed from the right rear passenger door of defendants’ car. He also argued that defendants committed prejudicial error in asserting, in their opening statement, that they would adduce “rock-solid” evidence that plaintiff hit the side of defendants’ car rather than the front of it. Plaintiff asserted that defense counsel knew that that evidence, i.e., the hair fibers, would be inadmissible due to the lack of a proper foundation and due to the failure to disclose it during discovery.

Notwithstanding the grounds relied upon by plaintiff, the trial court granted plaintiff’s motion based, in part, on its finding that the jury “could not do otherwise” than believe the version of the accident testified to by Billy because he was incapable of lying. However, the trial court expressed greater concern with what it believed to be the jury’s disregard of the instruction on a driver’s statutory duty of car to avoid colliding with a pedestrian. In that regard, the trial court noted Stamm’s testimony that: the weather on October 21, 1985, was clear and dry; he had an unobstructed view of the roadway; he could not figure out what the boys were doing; he did not blow his horn; he made no eye contact with the boys; he did not apply his brakes; and he did not slow down. From that testimony, the trial court concluded that defendant Stamm, although having 100 yards of a perfectly clear view of plaintiff and his brother, did nothing to warn them of his presence. As a result, the trial court found that the verdict was against the manifest weight of the evidence and that the jury had not followed the law. Finally, the court also stated, “I am sure that the envelope dramatically produced by the officer was part of the basis for.[the jury’s] decision, but I am not making that the basis for my decision.”

Opinion

On appeal, defendants principally contend that, in granting plaintiff a new trial, the trial court improperly substituted its judgment on the credibility of the witnesses for that of the jury. By way of reverse inference, defendants also assert that the trial court’s erroneous rulings against them on several other issues during the trial reveal that defendants received an unfair trial and, ergo, that plaintiffs received a fair trial. However, we find no need to address these issues.

As a basis for the latter argument, defendants note that on appeal from an order granting a new trial, all other rulings of the trial court are subject to review. (Bergen v. Shah-Mirany (1980), 83 Ill. App. 3d 752, 404 N.E.2d 863; Turner v. Commonwealth Edison Co. (1978), 63 Ill. App. 3d 693, 380 N.E.2d 477.) What defendants ignore, however, is that in determining the propriety of a grant of a new trial, the reasons given by the trial court for its ruling are immaterial, a reviewing court is not limited by the trial court’s reasoning and the trial court’s ruling can be sustained on all the grounds urged in the lower court in support of the motion, even though the court did not state all of those grounds as a basis of its action. (DiMaso v. Wieboldt Stores, Inc. (1976), 37 Ill. App. 3d 966, 347 N.E.2d 466 (and cases cited therein).) In short, the impropriety of the trial court’s reasoning in granting a new trial is of no importance if the ruling itself is correct. Doerr v. Palm (1971), 1 Ill. App. 3d 902, 274 N.E.2d 889.

In view of the foregoing rules, we find fatal to their appeal defendants’ failure to address, to any material extent before this court, the limited grounds upon which plaintiff relied in moving for a new trial below and upon which he seeks to sustain that ruling on appeal. Defendants fail to cite any authority to support their assertion on appeal that the trial court improperly excluded the hair fiber evidence which they sought to introduce through the testimony of Officer Levin. On the basis of that failure alone, we could decline to address the issue. (See Nicholl v. Scaletta (1982), 104 Ill. App. 3d 642, 432 N.E.2d 1267.) Moreover, even if we were to consider the more extensive arguments defendants made below and the authority which they cited in support thereof in contesting the motion for new trial, we would ultimately find the hair fiber evidence inadmissible and that defendants’ attempt to introduce that evidence so prejudiced plaintiff that he was entitled to a new trial on that basis alone.

Initially, however, we cannot agree with plaintiff or the trial court that the hair fiber evidence was inadmissible because of defendants’ failure to disclose it during discovery.

Plaintiff asserts that his discovery requests, generally, and a request to produce all physical evidence propounded in April 1987, specifically, obligated defendants to reveal the hair fiber evidence. In contesting the exclusion of the hair fiber evidence at trial, defendants explained to the trial court that their failure to produce that evidence prior to trial resulted from the fact that their attorney did not learn that Officer Levin had the hair fibers until defendant Stamm’s deposition testimony in August 1987. Defendants thus noted that a party has no duty to supplement his answer to an interrogatory which was complete when made absent a timely supplemental interrogatory. Rogers v. Chicago & North Western Transportation Co. (1978), 59 Ill. App. 3d 911, 375 N.E.2d 952.

Defendants’ reliance on defense counsel’s lack of knowledge of the hair fiber evidence ignores the rule that discovery is not limited to matters within the knowledge of the attorney who represents a party but is addressed to the party himself, on whose behalf the attorney acts merely as agent in such matters. (See Drehle v. Fleming (1971), 49 Ill. 2d 293, 297, 274 N.E.2d 53.) As such, and since defendant Stamm knew of the hair fiber evidence from the date of the accident, defendants had a duty to disclose and/or to produce that evidence if its disclosure or production was sought in discovery. However, we conclude that it was not.

None of the written interrogatories to defendants included in the record on appeal can be reasonably construed as requesting the disclosure of such physical evidence. Moreover, while it is not part of the record on appeal, we conclude that plaintiff’s request to produce failed to request the production of the hair fibers. As quoted by the trial court, that request merely sought all demonstrative evidence, i.e., photographs, diagrams, etc., “of the occurrence, the scene of the occurrence, any vehicles, machinery or objects involved in the occurrence, or of the plaintiff’s injuries.” The foregoing language cannot be reasonably construed as requesting the production of the vehicle, machinery or objects themselves which were involved in the accident. The same conclusion applies to the further request quoted at trial for “[a]ll data as to the physical and mental condition of the plaintiff prior to the occurrence including intra-injuries [sic] sustained in the accident.”

In the absence of a discovery request which could reasonably be construed as calling for the disclosure of the existence or the production of the hair fiber evidence, the trial court erred in sustaining plaintiff’s objection on the ground of nondisclosure.

Defendants further contested the exclusion of the hair fiber evidence on the basis of defendant Stamm’s testimony as to its existence in August 1987. Defendants argued that, inasmuch as plaintiff knew of the identity of Officer Levin, by virtue of being in possession of the accident report he filed, the onus for failing to obtain that evidence should fall upon him. We agree.

At his deposition, defendant Stamm testified that Officer Levin pulled some blond hairs out of the chrome stripping from the back door of defendants’ car and placed them in an envelope. We find this testimony sufficient to have put plaintiff on notice of the existence or possible existence of the hair fiber evidence and, given that defendants had not theretofore produced it, of the likelihood of its possession by Officer Levin. The evidence was as accessible to plaintiff as it was to defendants. In this regard, we note that there is no obligation upon a party to produce evidence which is not in his custody, possession or control but in that of a third person. Wiebusch v. Taylor (1981), 97 Ill. App. 3d 210, 422 N.E.2d 875; City Savings Association v. Mensik (1970), 124 Ill. App. 2d 34, 260 N.E.2d 110.

Notwithstanding the foregoing, we do agree with plaintiff and the trial court that the hair fiber evidence was inadmissible due to a lack of proper foundation.

In moving for a new trial, plaintiff also argued that the evidence lacked a proper foundation. The foundation was lacking in that defense counsel had failed to have the fibers analyzed to determine whether they were, in fact, human hairs. If the collected fibers were human hairs, it was incumbent upon defense counsel to establish that they were plaintiff’s. Defendants made no response to this argument in their written response to the motion for new trial. At the hearing on the motion, they argued, as they did at trial when plaintiff objected to defendants’ attempt to introduce the evidence, that their failure to have tested the contents of the envelope, in Officer Levin’s possession, was a matter for cross-examination by plaintiff. We cannot agree.

We believe that before evidence, such as the purported hair fibers which defendants sought to introduce here, may be properly introduced before a jury, the party seeking its introduction must provide some basis from which it could properly be concluded that the evidence is more probably than not what it is purported to be. That is especially so where, as here, the opponent has established a possibility that the evidence is not what the offering party purports it to be. Defendant Stamm admitted under plaintiff’s questioning that he owned a dog. The possibility thus existed that the fibers collected by Officer Levin were not human hairs. Absent defendants’ elimination of that possibility to any extent, the hair fiber evidence was properly excluded. Its prejudicial effect would have far outweighed its probative value for any evidentiary inferences that could have been validly drawn therefrom. See Deerhake v. Du Quoin State Fair Association, Inc. (1989), 185 Ill. App. 3d 374, 541 N.E.2d 719; Chambers v. Rush-Presbyterian-St. Luke’s Medical Center (1987), 155 Ill. App. 3d 458, 508 N.E.2d 426; Hengels v. Gilski (1984), 127 Ill. App. 3d 894, 911, 469 N.E.2d 708.

In this regard, we disagree with defendants that the origin of the hair fibers collected from defendants’ car could have been properly left to the jury. Absent any evidentiary basis upon which to determine that the hair fibers were more probably human than not human, any such determination by the jury would have been the result of mere speculation and conjecture.

We also disagree with defendants that plaintiff opened the door to admission of the envelope containing the hair fibers by questioning defendant Stamm. At most, plaintiff opened the door to testimony by Officer Levin as to his collection of the purported hair fibers from defendants’ car. Absent a proper foundation, plaintiff did not open the door to the admission of the hair fibers themselves. In this respect, the trial court’s action in barring any further discussion of the hair fibers, rather than merely their admission, may have been too broad. However, it did not prejudice defendants. By the point at which plaintiff objected to the admission of the hair fibers, defendants’ theory of the case had been corroborated by defendant Stamm’s testimony and that of Officer Levin. Defendants did not, through their testimony, have the right to the admission of the physical hair fiber evidence itself, absent a proper foundation therefor.

Finally, the question remains whether defendants’ mere attempt to introduce this evidence warranted a new trial.

As a general rule, improper argument or misconduct of counsel is a sufficient basis for an award of a new trial. (Bisset v. Village of Lemont (1983), 119 Ill. App. 3d 863, 457 N.E.2d 138.) Where, as here, there is a sharp conflict in the evidence, it becomes all the more important to prevent misconduct by counsel. (See Clayton v. Bellatti (1966), 70 Ill. App. 2d 367, 375, 216 N.E.2d 686; Rudolph v. City of Chicago (1954), 2 Ill. App. 2d 370, 377, 119 N.E.2d 528.) The testimony of defendant Stamm and plaintiff’s brother made this a close case factually; therefore, there was a substantial likelihood that defendants’ improper attempt to introduce the physical hair fiber evidence would unduly influence the jury. This likelihood was significantly increased by the necessity which plaintiff found to object to that attempt by defendants. The exclusion of this evidence very likely created in the jurors’ minds the impression that plaintiff succeeded in keeping from them evidence which they should have heard. (See Morgan v. Rogers (1975), 30 Ill. App. 3d 346, 350-51, 332 N.E.2d 476.) The prejudice to plaintiff from the conduct of defendant’s counsel was manifest and irremediable. In this regard, our conclusion that defendant was entitled to elicit testimonial evidence regarding the hair fibers necessitates the further conclusion that plaintiff was not entitled to a jury instruction to disregard all references thereto, contrary to his assertion below and on appeal. However, we cannot conclude from that fact, alone, that any prejudice to plaintiff by defendants’ inchoate attempt to introduce the envelope was so de minimis that it does not entitle plaintiff to a new trial.

For all of the foregoing reasons, we affirm the order granting plaintiff a new trial.

Affirmed.

CERDA, P.J., and WHITE, J., concur.