author: PRESIDING JUSTICE EGAN

text:
    ELSA BENSON, INC., Plaintiff-Appellant, v. KALMAN FLOOR COMPANY, INC., Defendant-Appellee.
    First District (6th Division)
    No. 1—88—2177
    Opinion filed December 1, 1989.

      Epton, Mullin & Druth, Ltd., of Chicago (Robert J. Peters and LeAnn Pedersen Pope, of counsel), for appellant.
    Baker & McKenzie, of Chicago (Francis D. Morrissey, Charles B. Lewis, John C. Filosa, and Kathleen F. MacLennan, of counsel), for appellee.
   PRESIDING JUSTICE EGAN

delivered the opinion of the court:

The plaintiff, Elsa Benson, Inc. (Benson), a general contractor, brought this action against the defendant, Kalman Floor Company, Inc. (Kalman), a subcontractor, to recover damages caused by the defendant’s allegedly defective work on a warehouse and manufacturing facility in Chicago, Illinois. The trial judge granted the defendant’s motion for summary judgment on the ground that the complaint had not been filed within the statutory limitation period. (Ill. Rev. Stat. 1985, ch. 110, par. 13—214.) The judge also ruled in favor of the defendant on its motion for judgment on the pleadings, although the judge characterized the motion as one brought under section 2—619 of the Code of Civil Procedure. (Ill. Rev. Stat. 1987, ch. 110, par. 2—619.) The plaintiff contends that the court erred in granting summary-judgment because whether the limitation period had expired was a question of fact; that in granting summary judgment the court improperly considered the “facts” as recited in an appellate court opinion and in transcripts from the trial upon which the appellate court opinion was based; and that the court erred in granting judgment on the pleadings.

In 1972, Playskool, Inc. (Playskool), the owner of a warehouse facility located at 4501 West Augusta in Chicago, entered into a contract with Benson whereby Benson agreed to act as general contractor and provide design and construction services with respect to an addition to the existing warehouse.

Benson entered into a contract with Concrete Steel and Timber Erection Company (CST) under which CST agreed to design, furnish and erect all precast concrete components necessary for the construction of the second floor of the warehouse facility. CST, in turn, entered into contracts with two subcontractors to design and fabricate the precast concrete components of the second-floor system, i.e., the columns, ledger beams and double-tee panels. Midwest Concrete Products (Midwest) agreed to design and fabricate the columns and ledger beams, and Blakeslee-Midwest Prestress Concrete Company (Blakeslee) agreed to design and fabricate the double-tee panels. The proposed placement of the columns, the ledger beams and the double-tee panels is shown in a schematic drawing attached to this opinion as Appendix I.

Playskool instructed Benson to enter into a subcontract with Kalman, because Playskool wanted a special Kalman MONOROCK floor installed. Pursuant to Playskool’s direction, Benson and Kalman entered into a contract on March 5, 1973, for the installation of a Kalman MONOROCK floor which was to be placed over a precast concrete deck on the second floor. The contract required that the MONOROCK floor be bonded to the precast concrete deck and that welded wire mesh reinforcement be used.

After the facility was completed in December 1973, various problems began to surface. In 1974 cracks began to develop in the second floor over the joints of the double-tee panels; and Kalman was contacted to repair the cracks.

Apparently the cracks were repaired, but the problems did not end. In February 1976 Playskool informed Benson that a piece of concrete had broken off the ledge of the beam where a double-tee panel was resting, a phenomenon commonly referred to as “spalling.”

Meetings were held between Benson, CST, Blakeslee and Midwest in an effort to identify the cause of the spalling. CST hired an independent structural engineer, Erich Mees, to investigate the problem and to assist CST, Blakeslee and Midwest. Mees made a report to CST which set forth his opinion as to the cause of the spalling. CST, Blakeslee and Midwest, in consultation with Mees, developed a repair procedure with the approval of Benson and Playskool.

In January 1977 Playskool notified Benson that more spalling had occurred when a “couple of five-pound pieces of precast concrete came crashing down” inside the employees’ entrance on the west side of the building. Benson in turn notified CST that Benson’s immediate inspection revealed a repetition of the spalling which had occurred approximately one year before. Benson asked CST to correct the situation. The parties were unable to reach an agreement regarding responsibility for the cost of repairs. As a result, Playskool filed a complaint against Benson in April 1977 alleging fraud, breach of contract and breach of implied warranty of fitness. Benson filed a third-party complaint against CST for contractual indemnity and common law indemnity and against Blakeslee and Midwest for common law indemnity.

After filing its complaint, Playskool retained an engineering firm to develop a repair program for the facility. Ian Chin, a structural engineer, was primarily responsible for developing the repair program. Chin came to certain conclusions and made certain recommendations to Playskool which were followed in the spring of 1979 for the purposes of repair.

However, in the summer of 1981, Chin was contacted by Playskool and told that the problem had recurred. Under Chin’s direction, the cracks that had developed after 1979 were repaired during the winter of 1981. During the repair process Chin discovered that there were serious structural defects within the topping slab which he determined had to be removed. During the removal of the topping slab, Chin noticed that the slab was not bonded to the tops of the double-tee panels and that the mesh reinforcement in the topping slab was misplaced. This indicated to Chin that there was no composite action between the topping slab and the double-tee panels. Composite action occurs when the bond between those panels and the topping slab permits the floor system to act structurally as a single unit. It was his opinion that since there was no composite action between the topping slab and the double-tee panels, the double-tee panels were not capable of supporting the 175-pound design live load requirement of the contract. It was also his opinion that the cracks in the double-tee panels occurred because of the lack of composite action between the topping slab and the double-tee panels. He advised certain persons from Playskool that since there was no composite action between the topping slab and the double-tee panels, the second floor would not meet the design live load requirement and that a thorough analysis of the floor should be conducted. Without composite action, he said, the floor was capable of carrying only 45 pounds per square foot.

The original complaint filed by Playskool in 1977 alleged that “extensive cracking and separation has occurred between the walls and second floor of the manufacturing facility.” Playskool later filed an amended complaint in July 1979, which added, “Concrete beams and columns have cracked and failed resulting in a condition of spalling concrete.” After receiving Chin’s opinion in 1981, Playskool filed its second amended complaint in September 1982 which provided in part as follows:

“Ragnar Benson materially breached the construction contract by failing and refusing to properly design, construct and install the manufacturing facility in that:
* * *
(e) Concrete columns, ledger beams, double-tee beams and floor slabs, were improperly designed, constructed and installed.”

In October 1983 the plaintiff took Chin’s deposition again. (It had first taken his deposition in 1980. That 1980 deposition will be referred to later.) In the 1983 deposition Chin testified to his observations in 1981 during the repair work with respect to the topping slabs installed by the defendant. It was at that deposition he testified to what he had found in 1981 and gave his opinion that the work on the floor itself was defective.

We pause in the recitation of the facts and procedural history to identify the deposition of Chin in 1983 as the point at which the plaintiff contends the limitation period began to run. The plaintiff claims that until it heard in 1983 the observations made by Chin in 1981 and the opinion that he formed at that time, it had no reason to believe that the cause of the problems'in the Playskool facility was defective work by Kalman.

In November 1983 the plaintiff sought leave to amend its third-party complaint in the Playskool case and add Kalman as an additional third-party defendant. The trial judge denied the plaintiff’s motion because of the possible delay of the trial which was scheduled to begin within a few weeks.

In early 1984, Playskool’s action and the plaintiff’s third-party claims were tried before a jury. At the conclusion of the cases in chief of Playskool and the plaintiff (defendant and third-party plaintiff in that suit), the court granted all the third-party defendants’ motions for directed verdicts. The jury found Benson guilty of both breach of contract and warranty as well as the count alleging fraud and returned a verdict in favor of Playskool of $5,756,475 in compensatory damages and $2,590,414 in punitive damages. Benson settled with Playskool but appealed the judgments in favor of the third-party defendants.

On April 11, 1984, the plaintiff Benson filed this complaint against the defendant Kalman alleging breach of contract, breach of express warranty and the right to contractual and common law indemnity. Benson alleged that Kalman had failed to properly install the reinforcing wire mesh and to insure a proper bond between the filled slab and the precast concrete deck; and that the plaintiff had been found liable to Playskool in an amount in excess of $2,500,000 in damages, some of which was “attributable to defects in [Kalman’s] second floor concrete filled slab.”

On August 25, 1986, while this complaint was pending, this court affirmed the judgments against Benson and in favor of the third-party defendants. Playskool, Inc. v. Elsa Benson, Inc. (1886), 147 Ill. App. 3d 292, 497 N.E.2d 1199.

The judge granted summary judgment and judgment on the pleadings on all counts of this complaint. The plaintiff does not appeal from the orders dismissing its claim for common law indemnity.

We will address first the plaintiff’s contention that the court erred in granting summary judgment and holding, as a matter of law, that the statutory limitation period had expired. The rule governing summary judgment has been set out succinctly in Fooden v. Board of Governors (1971), 48 Ill. 2d 580, 587, 272 N.E.2d 497, 500:

“It may be stated generally that if what is contained in the pleadings and affidavits would have constituted all of the evidence before the court and upon such evidence there would be nothing left to go to a jury, and the court would be required to direct a verdict, then a summary judgment should be entered.”

The rule governing directed verdicts, the Pedrick rule, has been repeated so often that citation is not required: A verdict should not be directed unless all the evidence, when viewed in its aspect most favorable to the party opposing the motion, so overwhelmingly favors the movant that no contrary verdict based on that evidence could stand.

Two preliminary questions must be resolved before we may discuss the underlying question of whether the evidence shows the existence of a material fact which could be resolved only by a jury. The first question is what is the appropriate rule governing time limitations in construction contract actions? The defendant says that under the appropriate rule the time for bringing a third-party action begins when the underlying complaint against the third-party plaintiff is filed. It also contends that this rule is different from the “discovery rule.” In support of its position the defendant cites Hartford Fire Insurance Co. v. Architectural Management, Inc. (1987), 158 Ill. App. 3d 515, 511 N.E.2d 706, and La Salle National Bank v. Edward M. Cohon & Associates, Ltd. (1988), 177 Ill. App. 3d 464, 532 N.E.2d 314. At issue in both those cases was whether a third-party action involving a construction contract was subject to section 13 — 204 (Ill. Rev. Stat. 1983, ch. 110, par. 13—204), which provides that in actions for contribution among joint tortfeasors, the limitation period begins when the party seeking contribution has made payment to discharge his own liability, or to section 13—214 (Ill. Rev. Stat. 1983, ch. 110, par. 13—214), which provides that in all actions on construction contracts the limitation period begins when “the person bringing the action knew or should reasonably have known of the fact or omission” upon which he bases his claim. Both cases held that section 13—214 applied. We do not read those cases as pronouncements of so broad a rule that the time for filing a third-party action is automatically triggered by the filing of the underlying complaint.

We believe the appropriate rule applicable to all construction contracts has been set out by the supreme court in Knox College v. Celotex Corp. (1981), 88 Ill. 2d 407, 430 N.E.2d 976. In exposition of the rule, the court adopted the rationale of a medical malpractice case, Witherell v. Weimer (1981), 85 Ill. 2d 146, 421 N.E.2d 869, and a product liability case, Nolan v. Johns-Manville Asbestos (1981), 85 Ill. 2d 161, 421 N.E.2d 864. Based on the reasoning of those cases the supreme court held as follows:

“At some point the injured person becomes possessed of sufficient information concerning his injury and its cause to put a reasonable person on inquiry to determine whether actionable conduct is involved. At that point, under the discovery rule, the running of the limitations period commences.” (Emphasis added.) Knox College, 88 Ill. 2d at 416.

With that “discovery rule” as our guideline, we posit the question before us thus: When should Benson reasonably have known facts that would require Benson to take steps to determine whether Kalman had in fact been negligent?

The next question that we must address is what may properly be considered by the court on a motion for summary judgment.

In support of the motion for summary judgment, the defendant adopted portions of the appellate court opinion in Playskool as findings of fact. The plaintiff’s response contended that it was improper for the defendant to rely on the appellate court opinion to establish the existence of “certain facts.” In its reply the defendant referred to specific testimony heard in the Playskool trial and attached as exhibits portions of the report of proceedings containing that testimony. The record does not disclose that the plaintiff made any motion to strike those exhibits. Under the circumstances, the plaintiff may not now complain of the consideration of those exhibits by the trial judge in passing on the motion for summary judgment or their consideration by this court. (Santschi v. Gorter (1978), 63 Ill. App. 3d 394, 379 N.E.2d 1383.) Moreover, those exhibits would have properly withstood a motion to strike. We fail to see how a transcript of testimony of a witness at a trial in which Benson participated is entitled to less evidentiary deference than the deposition of that same witness.

The plaintiff has argued at great length here that the trial judge improperly considered the appellate court opinion in Playskool. In fact, it says that “whether Kalman had any right to try the issues presented in its dispositive motions by the wholesale use of excerpts from the Playskool trial transcript and the Playskool opinion of this court” is “the primary legal issue present on this appeal.”

We disagree that the Playskool opinion itself is an issue at all, because we are unable to determine what precisely in the Playskool opinion the judge allegedly considered that was not also in the excerpts of trial testimony; and the plaintiff has not pinpointed any “fact” in its brief that the trial judge accepted from the opinion. The colloquy between the judge and counsel before he made his findings and later when he denied the motion to reconsider are of little assistance to us in determining what “facts” the judge allegedly improperly considered. We note that the judge said he was not basing his ruling on the Playskool opinion alone. It is the burden of the appellant to show error; and it has not done so. (See Thanopoulos v. Pickens (1980), 87 Ill. App. 3d 906, 409 N.E.2d 477.) Before leaving this point, we wish to make two observations: First, a court may take judicial notice of adjudications of ultimate fact made in a court of review (see Walsh v. Union Oil Co. (1972), 53 Ill. 2d 295, 291 N.E.2d 644); and, second, there is no “fact” recited in the Playskool opinion that is germane to this case that is not properly before us from other sources.

Finally, insofar as summary judgment is concerned, we may address what we deem to be the primary issue: May it be said, as a matter of law, that Benson should have been alerted, at least two years before filing this action, to the fact that Kalman’s work might have been defective? We conclude that it may and should be said, as a matter of law, and that summary judgment was properly granted.

At this point we must address what we perceive to be the principal thrust of the defendant’s argument: Benson was responsible for the overall construction and “was responsible to insure that composite action was achieved at the connection of the second floor slab and the double-tee flanges.” Therefore, it knew or should have known of the defective work of Kalman, and, consequently, the statute began to run at that point. We believe that the defendant has misconstrued the application of the rule which places ultimate responsibility on a general contractor to the owner of property in determining liability for things done by a subcontractor which the contractor knew or should have known. The defendant’s main argument is that since the plaintiff failed to detect the defective work done by Kalman at the time the mesh was placed in the concrete and the slab was placed over the concrete form, it negligently permitted the work to be done improperly or negligently failed to detect that the work was done improperly. That interpretation would mean that, since the general contractor is charged by law with ultimate responsibility, the time for filing an action he might have against a subcontractor begins when the defective work is done because the general contractor should detect it. We must reject this interpretation of the defendant. To accept it would render the discovery rule meaningless in actions by the general contractor against its subcontractors.

In short, the knowledge, actual or imputed, creating liability of the contractor for the acts of its subcontractor, is not necessarily the same knowledge of the contractor governing the limitation period. We hasten to make clear, however, that we are not saying that what knowledge a general contractor had, or should have had, at the time the work was done is never probative; we are saying that it may not necessarily be conclusive. In this case, Benson acknowledges that it was responsible for the day-to-day supervision of the work; that Benson’s superintendent would have been “on the job” when Kalman placed the topping on the second floor; and that, if Kalman failed to properly pom- the floor, Benson’s superintendent should have said something at that time.

Before beginning a discussion of the sufficiency of the evidence, we wish to observe that the plaintiffs briefs have been so heavily involved in the extraneous question of the Playskool opinion that we have had to search the record ourselves for an adequate understanding of the facts. Those facts are as follows:

When Benson was first contacted by Playskool about the cracks and spalling, after examination, Benson came to the opinion that the cracking was the result of heavy loads on a forklift truck rolling over the floor; and its opinion of the cause of the spalling from the ledger beams was the “inadequate length of the bearing, the rough surface of the ledger beam, and the lack of a [resilient] pad.”

Midwest, which had the responsibility for the design and fabrication of the columns and ledger beams, came to the opinion in April 1975 that the cracks were due to shrinkage in the concrete topping.

In April 1974 Kalman saw cracks “over almost every joint in the pre-cast tee panels.” Its “guess” at the cause of the cracks was that “perhaps this piece of floor was used too soon.” Kalman expressed the belief that the “concrete should not shrink that much.” It noticed another badly cracked area in front of the truck docks, and it was Kalman’s opinion that the cracking was caused by settlement.

Kalman, Playskool and Benson met on April 12, 1974, and it was determined that the separation between the wall and the slab on the second floor had to do with the structure. At that time Kalman agreed with Playskool that Kalman would attempt to fill the cracks with epoxy.

On February 26, 1976, Benson demanded that CST repair the damages which resulted from “deficiencies of [GST’s] installation.” CST examined the facility and acknowledged that it was Benson’s opinion that CST was responsible; but CST did not agree and decided to hire an independent structural engineer, Erich Mees.

Mees examined the site in March 1976 and found that “a serious structural distress condition existed.” He listed four causes of the cracking:

(a) The building did not allow for expansion joints on the second floor.
(b) There were no bearings between the double-tee and the concrete.
(c) The bearing elevation of the double-tees was too short.
(d) The alignment between the double-tees and the concrete bearing ledges was very poor.

Joseph Pfendt, vice-president and general manager of Benson, told Playskool in 1976 that the spalling was caused by a forklift truck; but a week later he told CST that there were different causes for the problem.

James Ratzer, Benson’s head of the structural department, examined a hole in the concrete on the second floor in March 1975. Most significantly, he thought that the hole could have been caused by a lack of composite action. He could not recall anything being done to further investigate the problem but he recognized that “if the composite action between the two was not attained, this could contribute to a weaker condition.” When asked whether Benson did anything to determine whether the surface of the tees was roughened, which would improve bonding, which, in turn, would improve composite action, Ratzer replied, “I did not do anything.” He believed he looked at the broken pieces of the double-tee flange in 1975 but he did not ask anyone to examine it. When asked if he inquired about the condition of the surface of the broken piece, Ratzer stated, “I do not remember making any inquires, no.” He said that nothing was done to determine if the problem was caused by failure of the composite action.

Although the double-tees began fracturing in early 1975, Benson took no steps to determine whether the double-tees which had broken were capable of carrying the required 175 pound per square foot design live-load. Lewis Townsend, vice-president of engineering at Benson, testified that he “did nothing” in 1975. He did not even ask Ratzer his opinion regarding the cause of the failure. Townsend knew the slab and double-tees needed composite action, but he failed to examine the broken flanges or broken floor to see whether the mesh was properly located or the bonding agent was present or whether composite action had been obtained. Townsend testified, “I did not instruct anyone how to proceed.” He did not ask anyone to look at the composite action because he “could not determine that that was the cause of the hole.” He was asked whether Benson had the obligation to find out why there was a hole in the floor. He answered, “No.” When asked why Benson believed it had no obligation to inquire further, Townsend replied, “There is no answer to that.” Benson filled the hole with cement.

When the problem first arose in 1974, Benson, as we have previously noted, raised the lack of a resilient bearing pad as a possible cause of the spalling; and yet, Pfendt testified, even when Benson discovered that bearing pads had been omitted, and Pfendt admitted that Benson’s superintendent should have seen that, Benson did not report that fact to Playskool. Benson would not do corrective work because Playskool would not pay for it.

At his deposition in 1980, Ian Chin, who had been retained by Playskool in 1979, testified that a vertical crack at the ends of a precast, pre-stress member was a very serious indication of a “probable failure.” The spalled end of a pre-stress, pre-cast member indicates a weak area within the concrete. The situation was potentially very dangerous, and he became alarmed. He was told by Playskool that some of the cracking at the ends of the double-tee members was “pretty severe” and that something should be done as soon as possible. He conducted core sample tests of the ledger beams. He fabricated a test beam similar in make-up to the beams at the Playskool facility. The condition of the ledger beams when he examined them was “really appalling.” He made it clear that he had been hired by Playskool to do something as quickly as possible for safety reasons. He had not been hired to determine the cause of the cracking and spalling on the ledger beams. However, he said that he had received sufficient information to permit him to make a “cause-and-effect evaluation” except in one area: reinforcement of the concrete. He was asked how he would go about obtaining the information he would need regarding reinforcement and he made this answer:

“In a non-critical area of the ledger beam, the way I would do it would be to remove the concrete to actually examine the reinforcing steel within the member rather than depending on the contract documents.”

We recognize that Chin was talking about ledger beams and not the floor. But his deposition testimony was probative to establish, first, the gravity of the problem, which included danger to life; second, that he was not retained to solve the overall problem but rather to correct the dangerous condition; and third, that if there was any suspicion of the stability of concrete, the concrete should be removed. Therefore, the more dangerous the situation, the more compelling would be activity on the part of the general contractor to solve and alleviate the problem. The fact that Chin was not hired to attempt to solve the problem should have alerted Benson to the fact that it should hire an expert for that purpose. In this regard, it should be pointed out that Mees also made it clear that he was hired for a limited purpose. He said that his report was “prepared only in reference to the bearing distress condition” and that he had “not checked the individual members nor the overall stability of the structure.” He had been hired by CST, which understandably was concerned only with its own liability. Finally, the removal of the concrete as suggested by Chin in his 1980 deposition could have been done by Benson in 1980, just as it was later done by Chin in 1981.

Although Benson knew or should have known that Chin was doing more work for Playskool in 1981, it took no steps to keep abreast of the results of his work. If it had, it would have learned precisely what he did. He testified in 1983 regarding the proper way to test the floor: If he wanted to know whether the second floor could sustain 175 pounds per square foot, he would expose the tops of the tees. If he did not find deliberately roughened top surfaces of the tees to engage the topping slab and let it achieve composite action, then he would analyze the tees as if they were non-composite members and calculate the actual load capacity. He emphasized that, based on observations made in 1981, he knew the composite action and mesh reinforcement were improper.

We wish to make our position clear on this aspect of the evidence given in 1983: It was germane to show that no insurmountable burden was placed on the shoulders of Benson if it sought to determine the cause of the cracking and spalling. We repeat, it could have done precisely what Chin did.

Benson finally did retain an expert, Eugene Holland, after the Playskool trial. Holland had testified as an expert for Playskool at that trial in which he said that the cracks had structural significance because it meant that there was no composite action because there was no bonding:

“Well, the first indication, the first structural significance is that when the slab is cracked, that means it slipped, that means it has slipped off the flange and there is absolutely no resistance to this kind of movement *** to the sliding, no composite action whatsoever when the slab is cracked.”

The inescapable conclusion is that Benson could have received that opinion in 1977.

The lack of composite action was the principal cause of the problem since lack of composite action permitted movement of the floor. A fair question would be: Did Benson have any reason to believe that composite action was lacking? The answer is that it did. In 1974 Kalman reported that “something appears to be moving, and we believe it is either the wall or the structure.” On February 26, 1976, Midwest reported to CST that a cause of the cracking “was possibly due to build-up of lateral forces from movement in the double-tee floor system.” And we repeat that Ratzer, Benson's head of the structural department, examined the hole in the second floor in March 1975, and thought the hole could have been caused by a lack of composite action.

There is one final illustration of the casual attitude adopted by Benson. The original complaint filed by Playskool against Benson made no allegations of negligence insofar as any of the components of the second floor were concerned. In spite of that lack of specificity, Benson was diligent enough to name CST, Midwest and Blakeslee in a third-party complaint. Playskool’s first amended complaint added that “concrete beams and columns have cracked and failed resulting in a condition of spalling concrete.” The concrete beams and columns, Benson could argue, were the responsibility of CST, Midwest and Blakeslee, and not Kalman. But Playskool filed its second amended complaint in September 1982 and alleged defects in the “concrete columns, ledger beams, double-tee beams and floor slabs.” (Emphasis added.) Benson had to know that that allegation was directed at work done by Kalman; and yet, Benson took no steps to determine why Playskool had so amended its complaint until 13 months later when it resumed the deposition of Chin.

The entire record displays a pattern of finger-pointing, an overriding concern for economy and inertia on the part of Benson, particularly inertia. It first blamed Playskool, then it blamed CST, then it added Blakeslee and Midwest. Opinions as to the cause of the cracking and spalling abounded, but Benson was content to let Playskool and Midwest bear the cost of hiring experts in an attempt to solve the problem, despite the fact that as general contractor it had the ultimate responsibility for the construction of the building. The answer of Townsend, Benson’s vice-president, sums up the attitude taken throughout by Benson: He denied that Benson had any obligation to find out why there was a hole in the floor.

Determining at what point a party becomes possessed of sufficient information to be under an obligation to inquire further may be a question of law. (See, e.g., Tramutola v. Rott (1987), 156 Ill. App. 3d 151, 509 N.E.2d 657; Conley v. Springfield Clinic (1985), 130 Ill. App. 3d 369, 474 N.E.2d 421.) While Kalman has the burden of establishing a statute of limitations defense (Calumet Country Club v. Roberts Environmental Control Corp. (1985), 136 Ill. App. 3d 610, 483 N.E.2d 613), Benson has the general burden of proof under the discovery rule. Once Kalman introduced sufficient evidence which, if uncontradicted, would entitle it to judgment as a matter of law (Motz v. Central National Bank (1983), 119 Ill. App. 3d 601, 456 N.E.2d 958), Benson then had the burden of proving that the date of discovery came within the “discovery” exception to the statute of limitations. (See Blair v. Blondis (1987), 160 Ill. App. 3d 184, 513 N.E.2d 157.) It is our judgment that Benson failed to meet that burden here, as a matter of law, and that the court properly granted summary judgment. In view of our holding, it is not necessary that we consider whether the court properly entered judgment on the pleadings.

Before this opinion is concluded, there is one other matter to be discussed. The .1980 deposition of Chin was not mentioned in any of the briefs. It was first called to our attention by the attorney for Kalman during oral argument. We questioned the attorney for Benson about the effect of Chin’s 1980 deposition. After oral argument, we granted Benson’s attorney permission to listen to the tape of the argument. Subsequently, we granted leave to Benson’s attorney to file a reply to the oral argument and leave to Kalman’s attorney to respond. After listening to the tape ourselves and considering the reply and response, we wish to make it clear that no misrepresentations were made to us. In addition, we cannot accept the argument of Benson’s attorney that we should not consider the 1980 Chin deposition. One reason is that it was Benson’s attorney who made Chin’s 1980 deposition part of its motion for summary judgment, and it was he who filed Chin’s deposition as a supplemental record in this court. Another reason is that the deposition was probative for reasons we have already explained. It is true that the deposition should have been called to our attention in the briefs, but, to paraphrase Justice Frankfurter, knowledge, like wisdom, should not be rejected because it comes late. Henslee v. Union Planters National Bank & Trust Co. (1949), 335 U.S. 595, 600, 93 L. Ed. 2d 259, 264, 69 S. Ct. 290, 293 (Frankfurter, J., dissenting).

For these reasons, the judgment of the circuit court is affirmed.

Judgment affirmed.

McNAMARA, J., and LaPORTA, J., concur.

       Justice LaPorta participated in this opinion after the resignation of Justice Quinlan, who had participated in the oral argument. Justice LaPorta has read the briefs and listened to a tape of the oral argument.


source: Caselaw Access Project

author: JUSTICE RIZZI

license: Public Domain

text:
    ROBERT KUCHARSKI, Plaintiff-Appellant, v. RODRIGO B. FLORO, Defendant-Appellee (Englewood Hospital, Defendant).
    First District (3rd Division)
    No. 1—89—0162
    Opinion filed December 1, 1989.
    James L. Farina, of J. Dillon Hoey, P.C., of Chicago, for appellant.
    John J. Mustes and John R. Ostojic, both of Chadwell & Kayser, Ltd., of Chicago, for appellee.
   JUSTICE RIZZI

delivered the opinion of the court:

Plaintiff-appellant, Robert Kucharski (Kucharski), appeals from an order of the circuit court of Cook County entered on December 16, 1988, which denied his motion to amend a dismissal order entered on November 3, 1986. On appeal, Kucharski argues that the trial court erred when it denied his motion and ruled that the November 3 order was final and appealable pursuant to Illinois Supreme Court Rule 304(a) (107 Ill. 2d R. 304(a)). We affirm.

On April 1, 1986, Kucharski filed a medical malpractice action against Dr. Rodrigo B. Floro (Floro) and Englewood Hospital (the hospital). The hospital is not involved in this appeal. On April 28, 1988, the hospital spread of record its bankruptcy. Because Kucharski failed to file any affidavit of merit or written medical report pursuant to section 2—622 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2—622), defendants filed separate motions to dismiss based upon Kucharski’s failure to comply with section 2—622.

On November 3, 1986, the court entered an order granting Floro’s motion to dismiss. The order further provided as follows:

“This matter is final and appealable as to [the defendant physician] only pursuant to Rule 304(a).”

The supplemental record discloses that Kucharski’s attorney had incorrectly diaried the hearing and therefore failed to appear in court on November 3. Later that month, the circuit court entered and continued the hospital’s motion to dismiss for 60 days in order to allow Kucharski time to file an affidavit and medical report pursuant to section 2—622.

On January 26, 1987, Kucharski filed an amended complaint against both the hospital and Floro, together with an affidavit and written medical report. The hospital subsequently filed an answer to the amended complaint.

On October 12, 1988, Kucharski filed a motion to amend the November 3, 1986, dismissal order, contending that the court erroneously had assumed that dismissal based upon noncompliance with section 2—622 was necessarily with prejudice. (See McCastle v. Sheinkop, M.D., Ltd. (1987), 121 Ill. 2d 188, 194, 520 N.E.2d 293 (trial court has discretion to grant dismissal under section. 2—622 with or without prejudice).) Kucharski further contended that fairness dictated that he be permitted to amend the November 3 order to allow him to file his amended complaint. In response, Floro contended that the circuit court lacked jurisdiction because Kucharski’s motion was untimely.

On December 16, 1988, the court entered an order finding that the November 3, 1986, order was final and appealable and denying Kucharski’s motion to amend that order.

On appeal, Kucharski contends that the circuit court retained jurisdiction to grant the motion to amend the November 3 order because the November 3 order failed to state that there was “no just reason to delay enforcement or appeal” in accordance with Supreme Court Rule 304(a) and consequently was not appealable. According to Kucharski, the “no just reason to delay enforcement or appeal” language is mandatory pursuant to Hamer v. Lentz (1987), 155 Ill. App. 3d 692, 695, 508 N.E.2d 324. Kucharski asserts that in the absence of such language, the November 3 order remains subject to revision prior to the entry of a judgment resolving all of the claims of all of the parties.

Floro contends that the circuit court lacked jurisdiction because the November 3 order specifically referred to Rule 304(a) and consequently was final and appealable, and the time to appeal from the November 3 order had expired. According to Floro, the November 3 order is not open to revision.

In our view, the language of the November 3 order was clear. The order was made “final and appealable *** pursuant to Rule 304(a).” We believe that Kucharski’s contrary interpretation of the order is a triumph of form over substance. Our conclusion that the November 3 order was appealable under Rule 304(a), and therefore no longer subject to revision, is not inconsistent with Hamer v. Lentz.

Accordingly, the judgment of the circuit court is affirmed.

Affirmed.

WHITE and CERDA, JJ., concur.


author: JUSTICE CAMPBELL

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. WILFRED DECATUR, Defendant-Appellee.
    First District (1st Division)
    No. 1—88—0992
    Opinion filed December 4, 1989.

      Richard M. Daley, State’s Attorney, of Chicago (Gael M. O’Brien, Special Assistant State’s Attorney, and Inge Fryklund, Assistant State’s Attorney, of counsel), for the People.
    Randolph N. Stone, Public Defender, of Chicago (Timothy J. Deeming and James H. Reedy, Assistant Public Defenders, of counsel), for appellee.
   JUSTICE CAMPBELL

delivered the opinion of the court:

The State appeals from the circuit court’s order dismissing defendant’s indictment for delivery of a controlled substance (Ill. Rev. Stat. 1985, ch. 56½, par. 1401(c)), arguing that the circuit court erred when it determined that defendant’s statutory right to a speedy trial had been denied.

On January 20, 1987, defendant was arrested for possession of a controlled substance. At the preliminary hearing on February 9, 1987, defendant was in custody and demanded trial. The State advised the court that the laboratory analysis of the substance recovered from defendant had not yet been completed. Since defendant refused to enter a stipulation regarding the substance, the State requested a continuance to obtain the results. The court denied the request, and for this reason the State chose to nol-pros the charge. Defendant was released from custody.

Eleven days later, on February 20, 1987, the State obtained the laboratory analysis of the substance that had been recovered from defendant. Despite the fact that all of the evidence was within the State’s control as of that date, defendant was not reindicted and rearraigned on the same charge until October 13, 1987, nearly eight months later. On January 28, 1988, defendant filed a motion requesting that this new indictment against him be discharged based upon the State’s failure to comply with the statutory provision that guarantees a speedy trial. (Ill. Rev. Stat. 1985, ch. 38, par. 103—5.) On March 1, 1988, the circuit court granted defendant’s motion, ruling that defendant’s right to a speedy trial had been “usurped” by the State’s actions. The circuit court found that the delay in bringing defendant to trial had been occasioned by the State’s lack of due diligence in prosecuting the case and that the State’s decision to nol-pros the case at the time of the preliminary hearing was clearly a measure calculated and designed to circumvent the statutory provisions that guarantee a defendant a speedy trial once he has been charged with a crime. We must disagree.

Sections 103—5(a) and (b) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1987, ch. 38, pars. 103—5(a), (b)), known as the speedy-trial statute, provide, in general, that a person who is incarcerated must be tried within 120 days from the date he was taken into custody and that a person who is released on bail or recognizance must be tried within 160 days of his demand for trial. The speedy-trial statute is not operative unless charges are pending against the defendant. The 120-day period may be invoked only when the defendant is “in custody,” and the 160-day period may be invoked only when the defendant is out on bail or recognizance and has demanded trial. People v. Freedman (1987), 155 Ill. App. 3d 469, 474, 508 N.E.2d 326.

In People v. Sanders (1980), 86 Ill. App. 3d 457, 466, 407 N.E.2d 951, the court recognized that cases involving the application of the speedy-trial provisions when charges have been dismissed and reinstated typically fall into one of three categories: (1) those cases where the charges are dismissed upon a judicial determination at the preliminary hearing that no probable causes exists and the State subsequently refiles the charges; (2) those cases where the charges are dismissed upon the State’s request that they be stricken with leave to reinstate (SOL) and the State later reinstates the charges; and (3) those cases where the State chooses to nol-pros the charges that have been filed and then later refiles the same charges. Whether the statutory term under the speedy-trial statute continues to run, whether it is tolled or whether it begins to nm anew with the subsequent filing has usually turned on a determination of which of the three above-described dispositions is involved. As will be discussed below, there is clearly a rationale for distinguishing between the treatment of the cases based on the type of disposition obtained or requested by the State.

When charges against a defendant are dismissed by the court for a lack of probable cause, a judicial determination has been made in favor of the defendant. It is not a voluntary act by the State. The State may begin to prosecute the defendant again only by refiling the charges after obtaining additional evidence. Because a defendant would no longer be in custody or on bail or recognizance after a dismissal for lack of probable cause, the speedy-trial statute no longer is applicable. Furthermore, in this type of dismissal, the State clearly has little opportunity to manipulate the proceeding or purposely evade the operation of the statutory term. (People v. Toney (1978), 58 Ill. App. 3d 364, 368, 374 N.E.2d 695; see also People v. Gimza (1977), 56 Ill. App. 3d 477, 371 N.E.2d 1135.) For these reasons the statutory period has been held to begin anew with the new filing.

When charges have been SOL, it has been said that “the charges continue to lie against the accused, albeit in a dormant state, and they may be resurrected upon the State’s motion at any time.” (People v. Griffin (1978), 58 Ill. App. 3d 644, 646, 374 N.E.2d 1031.) Because charges that are SOL are still pending against the defendant and the prosecution is not effectively terminated, but merely suspended for a time, the statutory speedy-trial term will be deemed to continue to run, assuming of course that defendant is in custody or has demanded trial. People v. Griffin, 58 Ill. App. 3d at 646.

In the third situation, where the State requests a nolle prosequi on charges that have been brought against a defendant, the effect is to terminate the proceedings with respect to those charges. As a result, defendant is free to go and to do as he pleases and is not required to post bond or to enter into a recognizance to appear at another time. Furthermore, if the charges are nol-prossed before jeopardy attaches, subsequent prosecution of the identical charges is permitted. People v. Watson (1946), 394 Ill. 177, 68 N.E.2d 265.

Because charges that have been nol-prossed are not pending and because defendant is neither in custody, nor on bail or recognizance, the situation is akin to an involuntary dismissal for lack of probable cause. By the same token, because the decision to nol-pros lies within the “unfettered discretion” of the State’s Attorney and could be used to manipulate the proceedings, charges that have been nol-prossed are treated somewhat differently. (People v. Sanders, 86 Ill. App. 3d at 467.) In these instances the speedy-trial term is tolled during the period of time that the charges are no longer pending and defendant is neither in custody nor on bail or recognizance. The clock will continue to run once again with the refiling of the charges that were previously nol-prossed. People v. Sanders (1980), 86 Ill. App. 3d 457.

Notwithstanding the fact that the statutory term will generally be deemed tolled by a nolle prosequi, the State’s absolute power to request this type of disposition requires an additional inquiry to determine whether the State is abusing this power and whether the refiling was vexatious, repetitious or employed to manipulate the proceedings in order to evade or frustrate the purpose of the speedy-trial statute. (People v. Freedman, 155 Ill. App. 3d at 474; People v. Olson (1984), 128 Ill. App. 3d 560, 470 N.E.2d 1176; People v. Verstat (1983) , 112 Ill. App. 3d 90, 444 N.E.2d 1374.) If it is determined that the State engaged in technical maneuvering or that the State procured the nolle prosequi to cause delay or avoid statutory limitations, the speedy-trial term will not be deemed tolled. Rather, in those instances the statutory term will continue to run as of the date of the first filing or the first demand for trial. See People v. Christensen (1984) , 102 Ill. 2d 321, 329, 465 N.E.2d 93; People v. Fosdick (1967), 36 Ill. 2d 524, 528, 224 N.E.2d 242.

In the present case, the trial court held that the State engaged in technical maneuvering and purposeful evasion of the speedy-trial statute as evidenced by the State’s failure to resume prosecution of defendant until October 1987. Because the State nol-prossed the charges brought against defendant on February 9, 1987, due to the unavailability of the chemical analysis of the substance allegedly possessed by defendant and believed to be a controlled substance, and because the State subsequently received the completed laboratory report on February 20, 1987, within 11 days of the nolle prosequi, the trial court held that the State had “usurped” defendant’s rights and refused to toll the statutory term after the nolle prosequi had been obtained. Instead, the court held that the statutory term had continued to run from the time of defendant’s first speedy-trial demand and, thus, discharged him.

We agree that the State’s motivation for requesting a nolle prosequi is relevant, material and sometimes crucial to the inquiry when determining whether there has been a violation of defendant’s statutory right to a speedy trial. A mechanical application of the rules should not be employed based upon the language used or the type of disposition requested by the State. By the same token, we fail to see how the State’s decision to nol-pros charges brought against defendant, which was necessitated by the lack of sufficient competent evidence against him at the time of the preliminary hearing, may be equated to a purposeful evasion or tactical maneuvering employed by the State to avoid the restrictions of the speedy-trial statute.

When a defendant is arrested for the alleged commission of a crime, a timetable is automatically set into motion. This timetable requires that certain events take place in order to assure that the accused is not being held without cause and is afforded his due process rights under the laws of this State as well as under the United States Constitution. If the State is admittedly unable to meet this timetable and to go forward, it has an obligation to release defendant. At the same time, the State has an obligation to the community at large to prosecute violations of the law so as to protect its citizenry. We believe that in order for the State to be able to meet these dual obligations, there must be a higher standard or greater showing to indicate that the dismissal of charges lodged against an accused was occasioned by the State for the sole purpose of delay, harassment of the defendant or to deliberately avoid the statutory restrictions. The mere fact that the State was unable to go forward at the time of the preliminary hearing because of the unavailability of certain proofs does not, in our view, equate with a deliberate stall tactic or purposeful evasion. Furthermore, once the State possesses all the evidence that is necessary to obtain a conviction, the State need not commence prosecution immediately, the only limitations being the statutory ones applicable to the type of offense being charged.

In short, we find that when the prosecutor requests a nolle prosequi on charges filed against a defendant and this request is granted by the court and the defendant is released from custody, bail or recognizance, the statutory speedy-trial term is tolled until such time as the identical charges are refiled and defendant is once again taken into custody or otherwise held within the jurisdiction of the court. In order for this tolling of the statute to be inoperative, there must be a clear showing that the State sought the nolle prosequi to gain some tactical advantage over defendant that would place him in a more disadvantageous position, or to otherwise harass or to prejudice defendant so as to avoid or frustrate his interests which the speedy-trial right was designed to protect. These interests are: (1) to prevent oppressive pretrial incarceration; (2) to minimize the accused’s anxiety and concern; and (3) to limit the possibility that the defense may be impaired. Barker v. Wingo (1972), 407 U.S. 514, 532, 33 L. Ed. 2d 101, 118, 92 S. Ct. 2182, 2193; People v. Sanders (1980), 86 Ill. App. 3d 457, 472, 407 N.E.2d 951.

Clearly, in this ease no such showing was made. There is no evidence that the State’s delay in refiling the charges against defendant was motivated by anything other than time restraints occasioned by a high volume of cases. In addition, there is no showing that the purposes of the speedy-trial right were frustrated- by the nolle prosequi requested in this case. Defendant did not suffer the oppression of extensive pretrial incarceration, nor was he made to live under a constant threat or anxiety of prosecution, as he would have been had the charges been still pending. Even though the accused was probably aware that the State intended to pursue the matter at a later date, the fact remains that the State was required to obtain another indictment or otherwise to commence the proceedings anew. In the meantime, defendant was in no better or worse position than he was before the original charges were brought. Furthermore, the fact that the State could have commenced prosecution sooner but did not do so does not necessarily mean that the State was derelict in its duty, nor does it imply that some sinister motivation was at play. We note that our decision on this matter is in agreement with the recent opinion issued by the sixth division of this court in People v. Daniels (1989), 190 Ill. App. 3d 224.

For similar reasons defendant has not shown an infringement of his State constitutional right to a speedy trial. Relying on Barker v. Wingo (1972), 407 U.S. 514, 33 L. Ed. 2d 101, 92 S. Ct. 2182, and People v. Henry (1970), 47 Ill. 2d 312, 265 N.E.2d 876, the court in Sanders held that ‘‘[determination of whether [a] defendant’s constitutional right to a speedy trial has been violated requires consideration of four factors: (1) the length of the delay; (2) the reason for the delay; (3) defendant’s assertion of his right; and (4) prejudice to defendant.” (Sanders, 86 Ill. App. 3d at 471.) The delay of approximately eight months is not presumptively prejudicial, and defendant has not demonstrated how his case was prejudiced by the delay.

The order of the circuit court is reversed and the cause remanded for further proceedings.

Reversed and remanded.

O’CONNOR and BUCKLEY, JJ., concur.


author: PRESIDING JUSTICE BILANDIC

text:
    LLOYD WYRICK, Plaintiff-Appellant, v. TIME CHEMICAL, INC., et al., Defendants-Appellees.
    First District (2nd Division)
    No. 1—88—0665
    Opinion filed December 5, 1989.
    Rehearing denied January 9, 1990.

      Andrew J. Horwitz, Marc A. Perper, and John M. Kovac, all of Horwitz, Horwitz & Associates, Ltd., of Chicago, for appellant.
    Patrick J. Reynolds and Gregory G. Lawton, both of Modesto, Reynolds & McDermott, of Chicago, for appellee Time Chemical, Inc.
    John M. Barnes, of Law Offices of John M. Barnes, of Chicago, for appellee Murphy Carpet Supplies, Inc.
    Barry G. Collins, of Tuttle, Vedral & Collins, of Des Plaines, and Arthur S. Bresnahan and Douglas A. Miller, both of Bresnahan & Garvey, and Richard C. Robin and Edward A. Cohen, both of Vedder, Price, Kaufman & Kammholz, both of Chicago, for other appellees.
   PRESIDING JUSTICE BILANDIC

delivered the opinion of the court:

Plaintiff, Lloyd Wyrick, brought this action for personal injuries against defendant, Time Chemical, Inc. (hereinafter defendant Time), and others. On August 20, 1987, pursuant to the motion of defendant Time, plaintiffs cause of action was dismissed “for his failure to appear for a discovery deposition.” Plaintiff’s motions to vacate and reconsider the dismissal were denied. Plaintiff appeals.

Defendant Time’s motion to dismiss plaintiff’s cause of action alleged that plaintiff’s deposition was “continued on eleven occasions” and that plaintiff “failed to appear” at a scheduled deposition on April 30, 1987. The motion was not supported by any affidavits.

On August 20, 1987, plaintiff’s counsel appeared before Judge Nicholson to oppose defendant Time's motion. He asked the clerk to hold the motion while he attended to another hearing in a different courtroom. Counsel for defendant Time appeared shortly thereafter. The motion was passed and recalled later, prior to the time that counsel for plaintiff returned. Essentially, counsel for Time advised the court of the contents of his motion that “[t]he deposition has been set eleven times” and the deposition was set for April 30, 1987, and plaintiff “didn’t show up.”

“THE COURT: I’ll grant your motion, counsel.
MR. REYNOLDS: Thank you.
THE COURT: Maybe now we will hear from them.
MR. REYNOLDS: Thank you.”

The court then entered the order dismissing plaintiff’s cause of action “for his failure to appear at a discovery deposition.”

Shortly thereafter, counsel for plaintiff returned and discovered that his case against defendant Time was dismissed. The court asked the clerk whether in fact a hold had been placed on the motion. The clerk replied, “[Y]es, we did. On the third time other counsel stepped up ** and wanted to proceed.” Judge Nicholson understood the problems of busy lawyers, crowded calendars, and the operations of specialized contested motion and pretrial calendars. The court said:

“I don’t know why they came here with it. Usually if it’s a question, if the question arises someone will come up with an order which says it still says all contested motions would go to the motions Court. In my thinking it’s not a contested motion, but why don’t you — you could do either one of two things, you could file your motion to vacate or you could simply call the opposing counsel and offer your client within the time between now and the 31st.
I’m a firm believer that lawyers ought to talk to each other. You could save yourself and your opponent and this Court some time. If you have an order for the, where the time is extended to August 31st, offer to present him prior to that time. That should solve the whole thing.
MR. KOVAC: Yes, it should, your Honor, but at present there is an existing order which has dismissed plaintiff’s cause of action.
THE COURT: Based on that, all right. You offer to present your client, if he agrees come in with an agreed order to vacate this order.
MR. KOVAC: Okay, your Honor.
THE COURT: Is there any reason — [?]
MR. KOVAC: I’m not sure that we are going to be able — .
THE COURT: The two of you are reasonable people.”

Following the hearing, plaintiff’s counsel called counsel for defendant Time to schedule the deposition prior to the August 31, 1987, date set in the pretrial order for taking the depositions of “all parties.” Counsel for defendant Time and all other counsel for defendants, except counsel for defendant Murphy Carpet, agreed. This refusal precluded the rescheduling of the deposition. Plaintiff then proceeded with his timely motion to vacate the dismissal order.

Counsel for defendant Murphy Carpet refused to agree to the deposition of plaintiff on the assumption that plaintiff’s cause of action was dismissed as to all of the defendants, including his client.

I

The record reveals that only defendant Time moved to dismiss plaintiff’s cause of action. The August 20, 1987, dismissal order granted the motion of defendant Time. The other defendants did not make similar motions, did not join in defendant Time’s motion, and were not present when defendant Time’s motion was presented and the dismissal order entered. “An order must be interpreted within the context of the motion or motions which accompany it.” Comet Casualty Co. v. Schneider (1981), 98 Ill. App. 3d 786, 793, 424. N.E.2d 911.

We therefore conclude that plaintiff’s cause of action was dismissed only as to defendant Time.

II

Supreme Court Rule 219(c) provides in pertinent part:

“If a party *** unreasonably refuses to comply with [the provisions of Rules 201 through 218,] or fails to comply with any order entered under these rules, the court, on motion, may enter, in addition to remedies elsewhere specifically provided, such orders as are just, including, among others, the following:
* * *
(v) *** that his [suit] be dismissed with or without prejudice; ***.” (107 Ill. 2d R. 219(c).)

Imposition of sanctions under Rule 219 is a matter within the discretion of the trial court; the reviewing court will uphold the decision absent an abuse of discretion. Amoco Oil Co. v. Segall (1983), 118 Ill. App. 3d 1002, 1013, 455 N.E.2d 876.

Dismissal is a drastic sanction which should not be invoked unless a party’s actions demonstrate deliberate, wilful or contumacious disregard of the court’s authority. (White v. Henrotin Hospital Corp. (1979), 78 Ill. App. 3d 1025, 398 N.E.2d 24; Williams v. City of Chicago (1977), 54 Ill. App. 3d 974, 370 N.E.2d 119, appeal denied (1978), 71 Ill. 2d 601; Hansen v. Skul (1977), 54 Ill. App. 3d 1, 369 N.E.2d 267; In re Estate of Fado (1976), 43 Ill. App. 3d 759, 357 N.E.2d 195; Department of Transportation v. Zabel (1975), 29 Ill. App. 3d 407, 330 N.E.2d 878; Schwartz v. Moats (1972), 3 Ill. App. 3d 596, 277 N.E.2d 529.) While a court may impose sanctions necessary to accomplish the object of discovery, it may not impose sanctions intended primarily as punishment. (Gallo v. Henke (1982), 107 Ill. App. 3d 21, 27, 436 N.E.2d 1068; Williams, 54 Ill. App. 3d at 978.) No sanction should be imposed unless the noncompliance is unreasonable, and any order entered as a result thereof must be just. (White, 78 Ill. App. 3d at 1028.) A “just” order within the meaning of Rule 219 is one which, to the degree possible, ensures both discovery and a trial on the merits. White, 78 Ill. App. 3d at 1028.

Because dismissal is such a radical sanction, it should be employed only as a last resort, when all other enforcement powers at the court’s disposal fail to advance the litigation. (White, 78 Ill. App. 3d at 1028; United Excavating & Wrecking, Inc. v. J.L. Wroan & Sons, Inc. (1976), 43 Ill. App. 3d 101, 356 N.E.2d 1160.) Where noncompliance with a discovery order is not “contumacious,” it is an abuse of discretion to dismiss the complaint and to refuse to vacate the dismissal. White, 78 Ill. App. 3d at 1030.

In the case at bar, defendant Time’s motion to dismiss mistakenly alleged that plaintiff’s deposition had “been continued eleven times.” However, 10 of the 11 continuances were by agreement of the parties. The court also was not informed of the fact that plaintiff had noticed the depositions of defendants and that those depositions were also continued from time to time by agreement.

On August 20, 1987, defendant Time and the other defendants had not been deposed, even though the pretrial deadline for “depositions of all parties” was August 31, 1987 (11 days later). The court also was not informed that plaintiff complied with all written discovery.

Plaintiff made an effort to be deposed prior to the August 31, 1987, deadline set in the pretrial order. This effort failed because of the erroneous assumption of defendant Murphy Carpet that plaintiff’s action against it was dismissed.

The trial court’s dismissal order is based on the erroneous allegations in defendant Time’s motion and inaccurate representations, unsupported by affidavit or testimony, that plaintiff “did not show” for a deposition on “at least eleven occasions.” The court’s misapprehension in this regard is confirmed by the court’s own stated findings to the effect that “there were eleven times or 22 times” that plaintiff “did not show” for his deposition; that the defendants “came in and [obtained] many orders”; that plaintiff “did not obey those orders”; and that “someone is disobeying orders with reckless abandonment.”

While it is true that a date was set for plaintiff’s deposition, which plaintiff did not attend, there is nothing in the record, nor did defendants ever claim, that his absence on that one occasion was deliberate, wilful or contumacious.

Since the trial court based its dismissal on the erroneous assumption that plaintiff missed “eleven or 22 depositions,” the dismissal should be vacated. As a matter of law, defendants have failed to demonstrate deliberate, wilful and contumacious disregard of the court’s authority sufficient to justify a dismissal. See White, 78 Ill. App. 3d 1025, 398 N.E.2d 24; Williams, 54 Ill. App. 3d 974, 370 N.E.2d 119.

Accordingly, the judgment of the circuit court of Cook County dismissing plaintiff’s cause of action against defendant Time is reversed and this case is remanded for further proceedings consistent with the views expressed herein.

Reversed and remanded.

HARTMAN and SCARIANO, JJ., concur.


author: JUSTICE DiVITO

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Respondent-Appellant, v. EDWARD ROSS, Petitioner-Appellee.
    First District (2nd Division)
    No. 1—88—1902
    Opinion filed December 5, 1989.
    Rehearing denied January 16, 1990.

      Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, Marie Quinlivan Czech, and Peter D. Fischer, Assistant State’s Attorneys, of counsel), for the People.
    Jenner & Block and Howard Reich, both of Chicago (Thomas P. Sullivan and Robert W. Kent, Jr., of counsel), for appellee.
   JUSTICE DiVITO

delivered the opinion of the court:

Following a bench trial in 1983, petitioner-appellee Edward Ross was convicted of murder and sentenced to a term of 30 years’ imprisonment. This court affirmed Ross’ conviction (People v. Ross (1985), 132 Ill. App. 3d 498, 477 N.E.2d 1258); the Illinois Supreme Court denied leave to appeal; and the United States Supreme Court denied certiorari. In October 1987, Ross filed a nine-count petition in the trial court for post-conviction relief. Following an evidentiary hearing, the trial court dismissed all but two counts and granted a new trial on count IV pursuant to section 2—1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2—1401), based on newly discovered evidence. Because of its ruling on count IV, the trial court indicated that it was not necessary to consider count VI, which sought a new trial under the Post-Conviction Hearing Act (Ill. Rev. Stat. 1987, ch. 38, par. 122—1 et seq.), based on “extraordinary circumstances.”

The State raises as issues on this appeal (1) whether, because the petition was filed four years after trial and Ross presented no evidence of fraudulent concealment by the State, the petition for relief under section 2—1401 of the Code of Civil Procedure is barred by the two-year limitations period in the statute, even though the State failed to raise this defense in writing before bringing this appeal; and (2) whether a new trial was properly granted pursuant to section 2—1401 based on “newly discovered” evidence that blood was found inside the barrel of the gun with which Mrs. Ross was shot. We reverse, holding that the petition was not barred by the two-year limitations period, but that the trial court abused its discretion in granting a new trial based on newly discovered evidence.

On November 4, 1981, four shots from Ross’ gun were fired in Ross’ bedroom. Ross was shot once in the right leg and Betty Ross, Ross’ ex-wife, was killed by a single contact gunshot to the left temple. At trial, on direct appeal, and in post-conviction proceedings, Ross maintained that Mrs. Ross first shot him in the leg and then committed suicide. The State maintained that Ross shot Mrs. Ross and then shot himself in the leg to inflict a “cover wound.” The trial court concluded, and the appellate court agreed, that the circumstantial evidence presented at trial established that Ross was guilty of murder and was inconsistent with Ross’ suicide theory. Briefly, that evidence included Ross’ experience with guns; the inconsistency between the location of the spent bullets and Ross’ contention that Mrs. Ross fired “hesitation shots”; the wound on the left side of Mrs. Ross’ head and Mrs. Ross’ right-handedness and disabled left hand; Mrs. Ross’ fear of guns; incriminating statements Ross made to Mrs. Ross’ former husband; the lack of fingerprints on the gun; and characteristics of Ross’ leg wound consistent with self-infliction. Details are recounted in this court’s decision affirming defendant’s conviction and will not be repeated here. See People v. Ross (1985), 132 Ill. App. 3d 498, 477 N.E.2d 1258.

The evidence adduced at trial particularly relevant to this appeal consists of People’s exhibit 36, containing a cotton swab used to test Ross’ gun for the presence of blood, and the testimony of Daniel Quealy and Michael Podlecki, who examined the gun for traces of blood. Quealy, an evidence technician, testified that Ross’ .32 caliber revolver was found on the floor of Ross’ bedroom near Mrs. Ross. Quealy examined the gun at the scene and found blood on both sides of the gun’s “frame,” but none on the barrel. He also examined the interior of the barrel and did not see any blood.

Quealy examined the gun a second time on the same date at the crime lab in Maywood. Regarding that examination, Quealy testified:

“Q. And what procedure did you follow with regard to the barrel of the gun when you were at the criminalistic lab?
A. After a second visual examination, I swabbed the length of the barrel.
Q. What did you use to swab the length of the barrel, Mr. Quealy?
A. I used a cotton swab.
Q. After using the swab, did you inspect that swab?
A. Yes.
Q. And upon inspecting that swab, did you notice any type of stain or discoloration upon the swab?
A. Yes.
Q. Now, Officer Quealy, I will ask you to look at what I will mark as People’s Exhibit No. 36 for identification[.]
* * *
Officer, would you examine People’s Exhibit 36 and its contents, please? Are you able to identify People’s Exhibit 36 and its contents?
A. Yes. This is the swab that was taken from the weapon found in the bedroom.”

On redirect examination Quealy testified:

“Q. In the course of the time in which you had custody of this weapon on November 4, 1981, did you ever observe any red or blood-like substance on the exterior barrel, on the interior of the barrel?
A. No.
Q. When you swabbed the barrel of that gun and you testified that there was a result, what did you recover from the inside of the gun?
A. It was soot on that swab.
Q. And what type of residue did that leave on your swab, what color?
A. It was blackened soot.”

Michael Podlecki, a forensic serologist with the Illinois State Police, then testified that People’s exhibit 36 contained a cotton swab that tested positive for the presence of human blood. There was no other testimony at trial regarding the cotton swab. The only other reference to the swab occurred during closing arguments, when the prosecutor argued that no blood was found inside the barrel of the gun. That comment elicited no response from either defense counsel or the trial court.

In post-conviction proceedings, Ross maintained that People’s exhibit 36 contained a cotton swab that Quealy used to swab the interior of the barrel and examined only visually, without performing any chemical tests for the presence of blood, and that the same cotton swab was chemically tested by Podlecki with positive results for blood.

Contrary to these assertions, Quealy testified at the post-conviction hearing that People’s exhibit 36 contained a dry cotton swab used to collect a blood sample from the exterior of the gun at the scene of the crime. Quealy stated that he visually inspected the inside of the barrel of the gun, saw neither hair, bone, tissue, nor blood, and then swabbed the interior of the barrel with a moistened cotton swab. Quealy saw soot on the swab and then applied a drop of Kastle-Meyer solution, followed by a drop of hydrogen peroxide, to screen the swab chemically for blood. The swab tested negative and was discarded. Quealy documented the procedure in his evidence report with the notation: “R/ETs also swabbed the length of the barrel with negative results for blood and tissue.”

On cross-examination, Ross attempted to impeach Quealy’s testimony by eliciting admissions that evidence technicians are responsible for collecting and preserving evidence, but as a general procedure, take suspect blood to the State crime lab for testing by serologists, and that the Kastle-Meyer test destroys the sample of fluid for purposes of additional testing, so that the test should not be performed if doing so would destroy the entire sample. Quealy maintained, however, that he was allowed to conduct screening tests for the presence of blood; that he had performed 100 Kastle-Meyer tests; that he learned how to perform the test from State serologist Mohammed Tahir; that he was never told that he should cut the swab and perform the Kastle-Meyer test on only part of the swab if necessary to preserve the sample for further testing; that he did not always refer explicitly to his tests in his evidence reports; and that the notation in his evidence report in this case indicated a negative result for blood based on the Kastle-Meyer test and a negative result for tissue based only on a visual examination. Quealy stated that he could not recall whether he told the trial prosecutors that he had performed a KastleMeyer test, but he stated that he told his partner, Steven Frances, that he performed the test with a negative result.

Steven Frances, Quealy’s partner assigned to investigate Mrs. Ross’ shooting, also testified at the post-conviction hearing. According to Frances, Quealy told him in the crime lab that he was going to do a blood-screen test on some evidence. Frances did not see Quealy perform the test, but saw the cotton swab after the test. Frances asserted the swab was white, indicating a negative result, and that generally it takes 10 to 15 minutes for a negative swab to turn the same color pink as a positive swab. On this appeal, Ross points out that before the post-conviction hearing, Frances told defense counsel that Quealy did not perform a Kastle-Meyer test; two days before Frances testified, he discussed Ross’ case on the telephone with Quealy; and the following day, Frances told defense counsel that Quealy did perform a Kastle-Meyer test and that he lied before when he stated that Quealy did not perform the test.

Donald DesRemaux, Quealy’s supervisor, testified that evidence technicians were prohibited by official policy from testing suspect blood samples and had no discretion regarding the performance of such tests. DesRemaux stated that, to the best of his knowledge, no evidence technician had ever performed a chemical test on suspect blood evidence and no evidence report had ever stated that an evidence technician had conducted such a test on suspect blood. DesRemaux reviewed Quealy’s report while on the witness stand and interpreted Quealy’s notation to refer only to a visual examination of the cotton swab for both blood and tissue.

Mohammed Tahir, a forensic serologist, testified that he had instructed Quealy personally on how to perform the Kastle-Meyer test and gave him a bottle of the necessary chemical. Tahir explained to Quealy that in cases where the entire fluid sample is on one swab, the proper procedure is to cut the swab and perform the Kastle-Meyer test on only part of the swab. Tahir testified that the Kastle-Meyer reagent turns the swab pink instantaneously if blood is present and, contrary to Frances’ testimony, turns the swab the same color pink in about one minute if no blood is present.

Michael Podlecki testified that he was the forensic serologist who performed the blood tests on the evidence recovered at the scene of Mrs. Ross’ shooting. He found blood on the swab contained in People’s exhibit 36, but nothing in his reports or in the envelope containing the swab enabled him to determine the portion of the gun from which the swab was taken. Podlecki received the gun from ballistics after it had been test fired four times and performed additional tests. He took two swabs from the gun, one from the exterior of the gun and the other from the interior of the barrel, and subjected both swabs to a Kastle-Meyer test. One swab tested positive and the other tested negative. Podlecki could not recall which swab tested positive, but because the gun had been test fired, concluded that the positive swab must have come from the exterior of the gun.

Finally, Herbert MacDonell and Dr. Irving C. Stone both gave expert testimony regarding the significance of blood inside the barrel of the gun. MacDonell concluded that only the contact shot to Mrs. Ross’ head could have caused blood to be present inside the barrel of the gun. This is known as the “draw back” effect. MacDonell also concluded that the shot to Mrs. Ross’ head must have been the last shot fired because any subsequent shot would have cleaned out the barrel. Dr. Stone testified that, because he had often been asked to testify on the subject and previously could only base his answers on “general knowledge and guessing,” he had been collecting data on the presence of blood inside and outside the barrels of suicide weapons since 1985. Dr. Stone tested twelve .32 caliber handguns used to inflict contact wounds to the head. Five of those guns had no blood either inside or outside the barrel, six had blood both inside and outside the barrel, and one had blood on the outside but not inside the barrel. Dr. Stone stated that these results were consistent with his findings for all handguns.

Based on the foregoing evidence, the trial court found that (1) People’s exhibit 36 contained the cotton swab that was used to swab the interior of the barrel and was tested by Podlecki with positive results for blood; (2) Quealy’s testimony to the contrary was significantly impeached; (3) there was no expert testimony presented at trial regarding the significance of blood inside the barrel of the gun; (4) Dr. Stone gave credible testimony regarding the incidence of blood inside the barrel of suicide weapons, finding the percentage of positive results to be 40% to 45% generally, and 40% to 42% for .32 caliber handguns; (5) the gun in this case was submitted to serologists for blood testing only after it was test fired four times; and (6) the serologist determined that the gun tested positive for blood.

The trial court reviewed these findings in the context of the circumstantial nature of the State’s case, Ross’ claim that Mrs. Ross committed suicide, and the State’s failure to collect and preserve gunshot residue samples from the hands of Ross and Mrs. Ross. The court stated that Ross “demonstrated by a clear preponderance of the evidence” the necessity for expert testimony regarding the significance of the presence or absence of blood in or on the gun and did not waive any issue regarding such testimony, because “the scientific evidence thereto is a relatively recent development” and “is in the nature of newly discovered evidence.” The court concluded:

“The cumulative effect of all of the above mentioned factors raises Petitioner’s allegations, and the referred-to evidence in support thereof, to the level of extraordinary circumstances, and this Court is able to say without reservation, that had such expert testimony and the evidence heard at the post-conviction hearing been presented at trial, there is reasonable likelihood that the outcome of the trial would have been affected.”

The court then granted Ross’ request for a new trial pursuant to section 2—1401 of the Code of Civil Procedure and the State brought this appeal.

I

The State maintains that the petition, filed four years after Ross was convicted, was barred by the two-year limitations period in section 2 — 1401. The State argues that the two-year limitations period is jurisdictional, may not be waived, and must be adhered to absent a clear showing that the grounds for relief were fraudulently concealed. We disagree.

Generally, if a statute codifies a remedy which existed at common law, a limitations period in the statute is procedural and may be waived. (See, e.g., Anderson v. Marquette National Bank (1987), 164 Ill. App. 3d 626, 632-35, 518 N.E.2d 196.) If, on the other hand, the statute creates a new cause of action, the limitations period is jurisdictional and cannot be waived. See, e.g., Fredman Brothers Furniture Co. v. Department of Revenue (1985), 109 Ill. 2d 202, 209-11, 486 N.E.2d 893.

Section 2—1401 codifies the common law remedies of writs of error coram nobis, bills of review, and bills in the nature of bills of review, and contains a two-year limitations period for the filing of a petition absent a showing of legal disability, duress, or fraudulent concealment of the ground for relief. (Ill. Rev. Stat. 1987, ch. 110, par. 2—1401.) Under the general principles set forth above, the two-year limitations period may be waived. This conclusion is supported by Rizzo v. Board of Fire & Police Commissioners (1973), 11 Ill. App. 3d 460, 297 N.E.2d 247, where the court held that the respondents waived the statute of limitations defense by failing to argue the defense on appeal. We have found no cases compelling a contrary result. Some cases refer to the two-year limitations period as “jurisdictional” or state that the two-year limitations period “must” be complied with, but these cases do not address the issue of waiver. (See Crowell v. Bilandic (1980), 81 Ill. 2d 422, 427, 411 N.E.2d 16.) Accordingly, we hold that the two-year limitations period in section 2—1401 may be waived.

During the post-conviction hearing in this case, the State raised the statute of limitations defense with respect to count IV orally at the hearing on the motion to dismiss the petition. Nevertheless, because the State did not plead the defense in its answer to the petition or raise the defense in its motion to dismiss, as required by the Code of Civil Procedure (see Ill. Rev. Stat. 1987, ch. 110, par. 2—613(d)), we conclude that the defense has been waived in this case. See Dick v. Gursoy (1984), 124 Ill. App. 3d 185, 471 N.E.2d 195 (statute of limitations defense was waived where it was not raised in pleadings, even though the defense was raised orally during a hearing on a motion to amend the pleadings).

II

The State maintains that the trial court committed manifest error in vacating Ross’ conviction because there was no evidence that blood was found inside the barrel of the gun. The State argues that People’s exhibit 36 contained a cotton swab used to test the outside of the gun and that there was no evidence presented at trial or at the post-conviction hearing showing that People’s exhibit 36 contained a swab used to test the inside of the barrel. We agree.

The trial judge may grant relief under section 2—1401 if the petitioner proves that (1) if the ground for relief had been known at trial it would have prevented the entry of judgment against him; and (2) failure to discover and present the ground for relief was not the result of his own lack of diligence. (Ostendorf v. International Harvester Co. (1982), 89 Ill. 2d 273, 283, 443 N.E.2d 253.) Newly discovered evidence is a proper basis for relief under section 2—1401. (Ostendorf v. International Harvester Co., 89 Ill. 2d at 283.) At a hearing on a section 2—1401 petition, the determination of the credibility of the witnesses rests with the trier of fact, and the reviewing court will not substitute its judgment for that of the trier of fact unless it is against the manifest weight of the evidence. (Uptown Federal Savings & Loan Association v. Kotsiopoulos (1982), 105 Ill. App. 3d 444, 451, 434 N.E.2d 476.) Whether relief should be granted under section 2—1401 is within the trial court’s discretion, and the reviewing court will not reverse the trial court’s ruling absent an abuse of that discretion. Galligan v. Washington (1987), 163 Ill. App. 3d 701, 707, 516 N.E.2d 894.

In this case, Ross’ entire theory rests on Quealy’s testimony at trial that he swabbed the interior of the gun; Quealy’s testimony that he submitted the swab contained in People’s exhibit 36 to the State crime lab for testing; Podlecki’s testimony that the swab contained in People’s exhibit 36 tested positive for blood; and the impeachment of Quealy’s testimony at the post-conviction hearing that he personally performed a Kastle-Meyer test on the swab from the interior of the gun’s barrel.

There is no evidence, however, that the cotton swab contained in People’s exhibit 36 was the same cotton swab used by Quealy to swab the inside of the barrel. At trial, Quealy identified the swab contained in People’s exhibit 36 as “the swab that was taken from the weapon found in the bedroom” only after ambiguous testimony regarding the procedure he used to swab the gun. At the post-conviction hearing, Quealy insisted that he discarded the swab taken from the inside of the barrel and that People’s exhibit 36 contained the swab taken from the exterior of the gun. At trial and at the post-conviction hearing, Podlecki testified that he received and tested the cotton swab contained in People’s exhibit 36 and that he could not determine the portion of the gun from which the swab was taken.

The only evidence indicating the portion of the gun from which the swab was taken is Quealy’s testimony that the swab was taken from the exterior of the gun. Significantly, it is undisputed that Quealy observed blood on the exterior of the gun and submitted only one swab for testing. It is reasonable to conclude that the swab Quealy submitted for testing was the swab which he anticipated would yield positive results for blood, namely, the swab he used on the exterior of the gun. It is also significant that Quealy found “blackened soot” on the swab he took from the inside of the gun’s barrel, but there is no evidence in either the trial or post-trial record that Podlecki found any soot on the swab contained in People’s exhibit 36 submitted by Quealy for testing.

The testimony at the post-conviction hearing that evidence technicians are not permitted to perform chemical tests, but are required to send suspect blood samples to serologists for such testing; the evidence of the absence of references to chemical tests or the KastleMeyer procedure in Quealy’s evidence reports; and the testimony of Donald DesRemaux, Quealy’s supervisor, that he interpreted Quealy’s evidence report in this case to refer only to a visual examination of the cotton swab, might support Ross’ contention that Quealy did not perform a Kastle-Meyer test, but that evidence does not lead to the conclusion that Podlecki tested the same cotton swab that Quealy used to swab “the length of the barrel.” The record reflects that the trial court itself was uncertain as to whether there was sufficient proof that blood was found inside the barrel of the gun, and ruled in favor of Ross because it believed the State’s proof of guilt at trial was not strong and the State failed to preserve gunshot residue samples from the hands of Ross and Mrs. Ross, even though the sufficiency of the proof at trial and the State’s failure to collect residue samples were issues raised on appeal and rejected by this court.

Because there was no evidence that Podlecki tested the same cotton swab Quealy used to swab the inside of the gun’s barrel, because the tests Podlecki performed after receiving the gun from ballistics did not establish that blood was present inside the barrel of the gun, and because it is reasonable to conclude from all the evidence that the one swab Quealy submitted for testing was the swab he used on the exterior of the gun, we conclude that the trial court’s finding, that blood was found inside the barrel of the gun, is against the manifest weight of the evidence. Because of the lack of evidence supporting the trial court’s finding, and because the record reflects that the trial court itself was uncertain as to whether blood was found inside the barrel of the gun, we conclude that the trial court abused its discretion in granting Ross a new trial.

Because of our conclusion above, we need not decide whether blood inside the barrel of the gun and scientific studies regarding the significance of that evidence, would have been properly relied upon in granting relief under section 2—1401.

For the foregoing reasons, the judgment of the circuit court of Cook County is reversed and Ross’ conviction and sentence are reinstated.

Reversed.

HARTMAN and SCARIANO, JJ., concur.