text:
    JOHN SCHOONOVER, Plaintiff-Appellee, v. AMERICAN FAMILY INSURANCE COMPANY, Defendant-Appellant.
    Fourth District
    No. 4—90—0860
    Opinion filed May 30, 1991.
    Rehearing denied June 28, 1991.

      Heyl, Royster, Voelker & Allen, of Peoria (Karen L. Kendall, Duncan B. Cooper, and David A. Perkins, of counsel), for appellant.
    R. John Alvarez, of Grosboll, Becker, Tice, Alvarez & Smith, of Peters-burg, for appellee.
   JUSTICE GREEN

delivered the opinion of the court:

On November 16, 1987, plaintiff John Schoonover purchased a homeowner’s insurance policy from defendant American Family Insurance Company to insure a house he had purchased in Jacksonville, lilinois. The insured building was destroyed by fire on November 20, 1987. Plaintiff filed a claim for his loss on March 10, 1988, and defendant denied the claim on May 9, 1988.

On April 4, 1989, plaintiff filed a complaint in the circuit court of Morgan County against defendant, seeking to recover $37,000 for the house, which had been insured for $30,000, plus punitive damages, attorney fees, and the cost charged for the demolition of the building. Defendant filed a motion for summary judgment on the basis that the suit was filed beyond the one-year contractual limitations period for filing suit. Defendant alleged in the motion that plaintiff failed to request a copy of the policy and that plaintiff was at all times represented by counsel. Plaintiff contended in response that the defendant should be estopped from raising the policy’s contractual limitations provision as a bar to his action, because plaintiff had never received a copy of the insurance policy and that it was irrelevant that he was represented by counsel.

The trial court entered an order on October 5, 1990, denying defendant’s motion for summary judgment. The court held:

“Plaintiff’s negligence in failing to inquire about policy limitations does not preclude a finding that the Defendant is estopped to assert the limitation defense where its agent [Harry Coop] failed to make reasonable efforts to locate Plaintiff and deliver to him a copy of the policy.”

Supreme Court Rule 308(a), at all times pertinent, has stated:

“When the trial court, in making an interlocutory order not otherwise appealable, finds that the order involves a question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, the court shall so state in writing, identifying the question of law involved. Such a statement may be made at the time of the entry of the order or thereafter on the court’s own motion or on motion of any party. The Appellate Court may thereupon in its discretion allow an appeal from the order.” 134 Ill. 2d R. 308(a).

Subsequent to the order denying defendant’s motion for summary judgment, the circuit court made the findings required by Supreme Court Rule 308(a) and “identified] the question^] of law involved” (134 Ill. 2d R. 308(a)), in these words:

“(1) Whether there is an implied covenant in a policy of insurance that requires the insurer or its agent to make all reasonable efforts to deliver a copy of the policy of insurance to the insured?
(2) Whether the insurer is estopped from asserting at summary judgment stage the defense of a one year contractual limitation period for filing suit on the policy where the insured did not request or receive a copy of the policy nor inquire about the policy terms with the agent or the insurer, and there is a question of fact whether the agent acted reasonably in failing to provide a copy of the policy to the insured where the insured’s residence covered by the policy was destroyed by fire within days after its effective date and the agent was aware of insured’s place of employment, prior residences, name and address of his mortgagee, and made no attempt to locate the insured.”

Upon defendant’s petition, we granted leave to appeal from the order denying defendant’s motion for summary judgment. We reverse.

We consider first the scope of the review applicable to the order on appeal. The supreme court has never passed upon the question. In Getto v. City of Chicago (1981), 92 Ill. App. 3d 1045, 416 N.E.2d 1110, a class action was brought against certain municipalities and cities to recover certain charges which the utilities had collected from their customers for the municipalities pursuant to legislation requiring the utilities to do so. The utilities and cities joined in a motion to dismiss for lack of venue, and the circuit court denied the motion. A Supreme Court Rule 308 appeal was taken, but the question identifying the point of law involved referred only to the proper venue in regard to the municipalities. The First District Appellate Court held that the scope of review was limited by the identifying question, and thus, the question of proper venue as to the utilities was not reached. Concluding that the utilities which could object to the venue had indicated an interest in the appeal only if the utilities were granted leave to appeal, the appellate court dismissed the appeal.

The Getto court reasoned that a Rule 308 appeal should be limited by the identifying question, because the rule applies to appeals from interlocutory orders which are not otherwise appealable. Recognizing that any jurisdiction for an appellate court to entertain the appeal arose from Supreme Court Rule 308, the Getto court decided that the identifying question limited the jurisdiction. The First District Appellate Court rendered a similar decision in Potter v. Chicago Heights Motor Freight, Inc. (1979), 78 Ill. App. 3d 676, 396 N.E.2d 1366.

In Kondourajian v. Millers National Insurance Co. (1987), 151 Ill. App. 3d 870, 503 N.E.2d 775, in a suit on an insurance policy, a Rule 308 appeal was taken by an insurer which had been denied a motion for summary judgment based on a lapse of the limitation period set forth in the policy. The identifying question did not control the propriety of the denial of the summary judgment. The Third District Appellate Court pointed out that the suit on the policy was not timely filed. The appellate court did not dismiss the appeal, as was done in Getto; nor did it affirm the order denying summary judgment. Rather, the appellate court vacated the order denying summary judgment and remanded. Judicial efficiency resulted as the circuit court was then in a position to grant the summary judgment to the insurer pursuant to the explanation in the opinion.

The Fifth District Appellate Court was most recently faced with the operation of identifying question aspects of Supreme Court Rule 308 in Koch v. Spalding (1988), 174 Ill. App. 3d 692, 529 N.E.2d 19. There a flagman at an auto racing event sued the track operator for injuries resulting from a collision during a race. Negligence was charged. The defendant pleaded a written exculpatory release agreement which the plaintiff had signed just prior to assuming his duties. The circuit court denied a defense motion for summary judgment but subsequently supplemented that order with findings pursuant to Supreme Court Rule 308 and the appellate court granted leave to appeal. A long identifying question submitted by the circuit court concerned whether various circumstances surrounding the hasty execution of the release agreement vitiated it.

The entire Koch panel agreed an exculpatory agreement of the nature involved could be entered into validly, and the circumstances of the execution of the agreement involved did not render it invalid. However, the plaintiff also maintained the defendant had given no consideration for the agreement. As that issue was not encompassed in the defining question, a majority of the court held that question could not be considered even though that question was raised by the motion for summary judgment. The cases of Kondourajian and State of Illinois ex rel. Skinner v. Lombard Co. (1982), 106 Ill. App. 3d 307, 436 N.E.2d 566, were cited for the rule that on a Supreme Court Rule 308 appeal, the appellate court cannot consider matters not set forth by the trial court in the identifying question. Because the identifying question was answered favorably by the court, the majority elected to vacate the order denying the summary judgment and remanded for further proceedings. The further proceedings would, presumably, begin with a further consideration by the circuit court of the question of whether defendant had conclusively shown that adequate consideration was given for the release.

Justice Harrison dissented in Koch. (Koch, 174 Ill. App. 3d at 699, 529 N.E.2d at 24 (Harrison, P.J., dissenting).) He agreed the exculpatory release agreement was not inconsistent with public policy, nor was it executed under conditions which made it invalid. He also concluded the record conclusively showed that defendant had given consideration for the agreement. Justice Harrison, therefore, reasoned that the appellate court should reverse and remand with directions to enter summary judgment for defendant. He reasoned that the requirement of Supreme Court Rule 308 for an identifying question was not meant to limit the scope of review, but merely to indicate whether the appeal from the interlocutory order involved a sufficiently important question to warrant such unusual review at such an early stage. He noted that the Fifth District Appellate Court had permitted Rule 308 review in Cooper v. Bi-State Development Agency (1987), 158 Ill. App. 3d 19, 22, 510 N.E.2d 1288, 1290, when no identifying question had been provided by the circuit court.

Justice Harrison further stated:

“That the trial court’s formulation of the relevant legal questions is not controlling becomes evident when one considers that the basic purpose of a Rule 308 appeal is not to review the trial court’s reasoning, but to test the propriety of the trial court’s decision in granting or refusing the requested interlocutory relief (cf. Kellerman v. MCI Telecommunications Corp. (1985), 134 Ill. App. 3d 71, 73-74, 479 N.E.2d 1057, 1059, aff'd (1986), 112 Ill. 2d 428, 493 N.E.2d 1045, cert. denied (1986), 479 U.S. 949, 93 L. Ed. 2d 384, 107 S. Ct. 434), where immediate resolution of that issue may materially advance the ultimate termination of the litigation. If the trial court’s formulation were binding, a situation might result where the trial court’s order would have to be reversed on interlocutory appeal simply because its analysis of the case was defective even though the result it reached would ultimately have to be sustained as correct on appeal following entry of final judgment. In such a situation, the interlocutory appeal, rather than speeding resolution of the case, would have operated simply to protract it, and to have protracted it unnecessarily.
The approach adopted by the majority here exemplifies this problem. By focusing on the issues as framed by the circuit court, rather than examining the correctness of the order itself, the majority leaves unresolved the question of the adequacy of the consideration supporting the agreement signed by plaintiff. If, on remand, the circuit court were to find in favor of plaintiff on this question, then the majority’s opinion as to the validity and effect of the agreement would be rendered meaningless. Meaningless opinions scarcely serve to ‘materially advance the ultimate termination of the litigation’ as required by Rule 308 (107 Ill. 2d R. 308).” Koch, 174 Ill. App. 3d at 699, 529 N.E.2d at 24 (Harrison, P.J., dissenting).

The dissent by Justice Harrison further pointed out that Supreme Court Rule 308 is derived from a Federal statute. (28 U.S.C. §1292(b) (1988); see 134 Ill. 2d R. 308, Committee Comments, at 264.) He then noted that Federal courts have not interpreted that legislation as limiting the appeal to the identifying question but, rather, have stated that the reviewing court is able to consider “ ‘such questions as are basic to and underlie the order supporting the appeal.’ (In re Oil Spill by Amoco Cadiz (7th Cir. 1981), 659 F.2d 789, 793 n.5; see also Merican, Inc. v. Caterpillar Tractor Co. (3d Cir. 1983), 713 F.2d 958, 962 n.7 (‘[o]n a §1292(b) appeal we consider all grounds which might require a reversal ***.’” Koch, 174 Ill. App. 3d at 699-700, 529 N.E.2d at 24 (Harrison, P.J., dissenting).

We agree with the dissent of Justice Harrison in Koch. Supreme Court Rule 308(a) speaks of the appeal being from “the order” which is “an interlocutory order not otherwise appealable” (134 Ill. 2d R. 308(a)). The rule says nothing about limiting the scope of the appeal. Rather, the rule states that the appeal must “involve^ a question of law as to which there is a substantial ground for a difference of opinion.” (Emphasis added.) (134 Ill. 2d R. 308(a).) When the purpose of a supreme court rule is to have that court answer a question of law certified to it by the United States Supreme Court or the United States Circuit Court of Appeals for the Seventh Circuit, the supreme court has provided that the “certification order shall contain: (1) the questions of law to be answered.” (Emphasis added.) (134 Ill. 2d R. 20(b).) If the Illinois Supreme Court had intended for Supreme Court Rule 308 to have merely involved the certification of a question to be answered by the appellate court, Supreme Court Rule 308(a) would have spoken of a question being certified for answer rather than permitting an appeal from the order which implies that the propriety of the order appealed is to be determined.

We recognize that appeal from interlocutory orders under Supreme Court Rule 308 is not favored and should be sparingly used. The purpose of requiring an identifying question is to enable the reviewing court to ascertain whether the extraordinary appeal is appropriate. Once appeal is granted, no judicial economy results from limiting consideration to the questions identified when the propriety of the order on appeal can be determined once and for all by considering all issues properly raised below. We conclude that here, we are to determine whether the circuit court erred in denying defendant’s motion for summary judgment.

In reviewing an order for summary judgment, this court must consider all of the facts revealed in the record and all of the grounds alleged by the parties in order to determine whether a genuine issue as to a material fact does still exist. Summary judgment is proper when the matters properly before the court show that if the case were to go to trial, there would be no question for the trier of fact to decide and the movant would be entitled to judgment as a matter of law. Seefeldt v. Millikin National Bank (1987), 154 Ill. App. 3d 715, 718, 506 N.E.2d 1052, 1055; Ill. Rev. Stat. 1989, ch. 110, par. 2—1005.

In support of the motion for summary judgment, defendant presented (1) discovery depositions of plaintiff and of defendant’s sales agent, Harry Coop; (2) copies of plaintiff’s application for homeowner’s insurance and the policy issued; (3) a letter to plaintiff from defendant dated January 26, 1988, advising plaintiff of the policy requirement that he file a “proof of loss” claim within 60 days of the loss and extending this requirement an additional 60 days; (4) plaintiff’s sworn statement in proof of loss dated March 10, 1988; (5) defendant’s letter of May 9, 1988, denying the claim; and (6) plaintiff’s complaint filed April 4, 1989. Plaintiff does not contest the form in which the above matters were presented.

Coop indicated in his deposition that (1) he was an insurance sales agent for defendant; (2) when plaintiff applied for homeowner’s insurance, he told Coop he was going to do some remodeling and would be residing in the insured house within 30 days; (3) the current address Coop had for plaintiff was the dwelling which was destroyed by fire; (4) although defendant sent Coop a copy of the policy approximately two weeks after the fire, Coop was unable to mail a copy to plaintiff, because he did not know where plaintiff lived; (5) the application for insurance listed plaintiff’s “previous” address in Beardstown; (6) Coop did not know whether defendant had sent a copy of the policy to plaintiff; (7) the original of the policy would have been mailed to Jacksonville Savings and Loan, the holder of the mortgage on the property; and (8) he knew the fire department considered the fire to be “of suspicious origin,” but he did not know a claim had been filed.

Plaintiff testified in his deposition that (1) he never received a copy of the insurance policy; (2) the first time he saw a copy of the policy was after the lawsuit was filed in April 1989; (3) Coop did not tell him after the fire that he could pick the policy up, and plaintiff never asked to see a copy of the policy; (4) he did not know the policy contained a one-year limitation period on suits against defendant; and (5) he has been represented by counsel at all times since approximately March 1988, when he filed his claim.

The application for insurance listed (1) the property destroyed by fire as plaintiff’s current address; (2) plaintiff’s occupation and the name of his employer; (3) plaintiff’s “previous address” in Beards-town; (4) Jacksonville Savings and Loan as mortgagee; and (5) the type of policy as being for a dwelling occupied by the insured.

Defendant argues first that the trial court erred in precluding defendant from asserting the bar of the one-year contractual limitations provision. Defendant notes that only plaintiff knew he had not received a copy of the policy: plaintiff never requested a copy; the sales agent was unable to mail a copy to plaintiff because the fire had destroyed what the agent thought was plaintiff’s current address almost immediately after the inception of the policy; the agent did not know whether the company had mailed a copy of the policy to plaintiff; and plaintiff’s attorney never requested a copy of the policy before filing the complaint. Defendant further notes it mailed the original of the policy to the mortgagee and a copy to Harry Coop.

Defendant claims that although it is undisputed that plaintiff did not receive a copy of the policy prior to the fire, delivery of the policy was not essential to the completion of the contract, and there is no basis for failing to charge plaintiff with knowledge of the contents of the policy such as to require a timely action disputing the denial of coverage. Defendant maintains it had no duty to “track” plaintiff down after his residence was destroyed.

There have been no cases cited from Illinois or other jurisdictions with the exact factual situation involved here, i.e., where plaintiff allegedly had never received a copy of the policy or any information about the contents and had not requested such information.

It is clear that actual or manual delivery of a policy is not essential to the completion of an insurance contract, unless the contract expressly indicates delivery is a requirement as a condition of the consummation of the contract. (1 Couch on Insurance 2d §10.4, at 683 (rev. 1984).) Here, the question is not whether the insurance policy was in effect because it was not delivered or whether the insurance company was bound by the policy. Rather, the question is whether the plaintiff can be bound by the terms of a policy which he claims he has never seen and of which he was never informed. Defendant does not argue that it would not be bound to defend a timely filed complaint.

An insured is charged with notice of the contents of an insurance policy, despite the fact that he had not received the policy, especially if the policy was available and he was not prevented from reading it. (Florsheim v. Travelers Indemnity Co. (1979), 75 Ill. App. 3d 298, 307, 393 N.E.2d 1223, 1231.) The insured cannot blame the insurance company for his failure to read the policy to discover the requirements for bringing suit. It is not the duty of the insurer to inform the insured of his duties. Further, in Dobosz v. State Farm Fire & Casualty Co. (1983), 120 Ill. App. 3d 674, 458 N.E.2d 611, the court found that although the insured did not receive a copy of his policy, a transmittal sheet sent by the company indicating the policy was enclosed, when it was not, was sufficient to put the insured on notice that he should have received a copy of the policy.

Here, plaintiff received a letter approximately two months after the fire loss, in which defendant specifically referred to sections of the policy and quoted a requirement that proof of loss must be filed within 60 days of the loss. This letter put plaintiff on notice that a policy was issued and that he should have received a copy of the policy.

Other jurisdictions have reached similar results. In Reliance Insurance Co. v. D'Amico (Fla. Dist. Ct. App. 1988), 528 So. 2d 533, the court noted that the fact that the insured had never received a copy of an insurance policy because his insurance agent kept it on file was irrelevant to the question of whether the insurance company should have advised him of a certain requirement in the policy. The court noted he had a duty to learn and know the contents of the policy before he signed it. The court said since the insured did not allege he was prevented from reading the policy or induced not to read it, he was bound by its terms. Reliance, 528 So. 2d at 535.

Plaintiff argues he cannot be charged with knowledge of the policy provision regarding the time limitation, because he did not have knowledge that the policy actually existed. This contention is contrary to the facts, however. Plaintiff admitted having received a letter from defendant in which defendant extended the 60-day period for filing a claim for loss. In this certified letter dated January 26, 1988, defendant specifically quoted “pages 6 & 7 of the policy under Conditions— Section 1 *** paragraph 3 ‘What You Must Do In Case of Loss.’ ” As stated in Dobosz, this letter was sufficient to put the plaintiff on notice of the existence of the policy and that he should have received a copy.

Compliance with the contractual limitations provision is a condition precedent to recovery under a policy of insurance. (McMahon v. Millers National Insurance Co. (1971), 131 Ill. App. 2d 339, 341, 266 N.E.2d 714, 716.) A breach of the one-year limitation provision precludes the insured’s recovery under the policy and renders his suit subject to dismissal. Numerous Illinois cases have recognized the validity of a one-year limitation in insurance cases. The Illinois Supreme Court noted there are “strong reasons” to impose such a condition because of the greater difficulty in investigating and preparing a defense for losses following a greater lapse of time. Peoria Marine & Fire Insurance Co. v. Whitehall (1861), 25 Ill. 466, 474.

The Illinois Department of Insurance requires “uniform insurance contracts, including contractual limitations on the time within which suits may be brought against the insurer by the insured.” (Illinois Insurance Department Official Regulations & Credit Bulletins, art. XXIII, Rule 23.01 (National Insurance Law Service, 1983).) The provision in the policy conformed to the standard fire policy language. (Wabash Power Equipment Co. v. International Insurance Co. (1989), 184 Ill. App. 3d 838, 540 N.E.2d 960.) It is inconceivable that plaintiff’s attorney was unaware of the existence of the policy or unaware that the policy should be consulted when he was contemplating filing suit to enforce its provisions.

Plaintiff next contends defendant is estopped from raising the bar of the one-year limitation period because of defendant’s failure to deliver the policy.

The only case cited by plaintiff is Union Fire Insurance Co. v. Stone (1930), 41 Ga. 49, 152 S.E. 146. There, a fire insurance policy was delivered by the insured to an agent of the company for the purpose of having attached a “loss payable clause.” However, before the policy was returned to the insured, a fire destroyed the insured property. Afterward, the insurer refused the insured’s request to redeliver the policy. The court held that the conduct of the insurance company in refusing to return the policy, thereby keeping the insured in ignorance of a provision requiring suit to be brought within one year of the loss, operated to estop the company from relying on that provision.

The plaintiff here argues that although defendant did not refuse to deliver the policy, the failure to deliver was in essence a tacit refusal to deliver. He maintains since he did not have the policy and was not aware of the provision requiring suit against the company be brought within one year of the loss, the company should be estopped from asserting that provision.

We disagree. The plaintiff here, unlike in Stone, never requested a copy of the policy, and the defendant never refused to give the policy. Defendant’s failure to deliver the policy did not amount to a “tacit refusal” to deliver.

Estoppel implies that the insured relied upon some act, conduct, or nonaction of the insurer to his detriment. “[T]o establish an estoppel the insured must show that it was in some manner misled by the acts or statements of the insurer or its agents [citations]; that the insured relied on this conduct or representation ***, and that the insured was prejudiced thereby.” Florsheim v. Travelers Indemnity Co. (1979), 75 Ill. App. 3d 298, 304-05, 393 N.E.2d 1223, 1229-30.

In First Federal Savings & Loan Association v. Nationwide Mutual Fire Insurance Co. (Del. 1983), 460 A.2d 543, the court discussed the doctrine of estoppel as it applied to actions of an insurer. The court noted that “the [principle] of estoppel prevents the assertion of a contractual condition by a party who, through words or conduct, has fostered the impression that the condition will not be asserted as a legal defense.” (First Federal, 460 A.2d at 545.) The court further noted that if an insured intends to rely on estoppel to avoid the consequence of failing to comply with a policy’s one-year limitation period, he will have to prove the company misled him and that he relied on that misleading conduct to his detriment. First Federal, 460 A.2d at 546.

Cases in which an insurer’s conduct is found to amount to estoppel typically involve a concession of liability by the insurer, advance payments made by the insurer to the plaintiff in contemplation of eventual settlement, and statements by the insurer which encourage the plaintiff to delay filing his action. (Myers v. Centralia Cartage Co. (1981), 94 Ill. App. 3d 1139, 1143, 419 N.E.2d 465, 468.) In Zieba v. Middlesex Mutual Assurance Co. (D. Conn. 1982), 549 F. Supp. 1318, the court indicated the estoppel doctrine contains two criteria: (1) one party must do or say something which is intended or calculated to induce another to believe in the existence of certain facts and to act on that belief; and the other party, influenced thereby, must change his position or do some act to his injury which he would not otherwise have done; and (2) a party relying on estoppel must demonstrate that due diligence was exercised to know the truth, that the truth was not known, and that the party lacked reasonable means to ascertain the truth. Zieba, 549 F. Supp. at 1322.

Here, defendant denied coverage of plaintiff’s loss in May 1988. Plaintiff took no further action until filing his complaint in April 1989. There is no evidence that defendant communicated with plaintiff during that time, entered into settlement negotiations, or refused to supply plaintiff with a copy of the policy. Plaintiff never requested a copy of the policy, nor did his attorney, although plaintiff obviously contemplated filing suit.

Numerous courts have determined that representation by an attorney precludes an insured from alleging that he was misled by the terms of a policy or was ignorant of certain provisions in the policy. In Advanced Methods, Inc. v. Grain Dealers Mutual Insurance Co. (7th Cir. 1960), 274 F.2d 634, plaintiff filed suit more than two years following a fire loss. Defendant denied liability, inter alia, on the ground that the suit was not filed within the 12-month limitation period for filing suit. Plaintiff alleged defendant was estopped from asserting the limitation period because the written binder was never delivered to plaintiff. The court noted that at no time did Advanced Methods or its attorneys request that defendant furnish a copy of the policy. The court found that where Advanced Methods had retained attorneys who threatened suit, Grain Dealers was not under a duty, upon its own initiative, to forward a copy of the agreed forfeiture conditions. Advanced Methods, 274 F.2d at 637.

In Peters v. St. Paul Fire & Marine Insurance Co. (S.D. N.Y. 1963), 213 F. Supp. 441, the insured brought an action for the loss of personal property more than one year after the loss occurred. The insured claimed the defendant was estopped from asserting the defense of the one-year limitation period, because she had never received a policy from the company. The court noted that the policy was sent directly to the mortgagee, and plaintiff received only a six-page document entitled “Homeowner’s Policy — Memorandum of Insurance.” The memorandum did not contain or disclose the existence of a one-year period of limitation. The court found that although the memorandum may have been sufficiently misleading to a layman insured to raise the possibility of estopping the company from asserting the limitation period, since plaintiff had engaged counsel to act on her behalf within four months after the alleged loss, the contractual limitation period was binding on plaintiff.

Taking the evidence shown here most favorably to plaintiff, where plaintiff had the aid of counsel well before the expiration of the time limits of the policy for bringing suit thereon, clearly defendant was neither (1) under a duty to make efforts greater than those made to deliver a copy of the policy to plaintiff, nor (2) estopped to raise the defense of the policy limitations. Plaintiff objects to our consideration of the legal representation which plaintiff had during the times mentioned because the existence of that representation was not in-eluded in the identifying questions. Because of our determination that the identifying questions do not limit the scope of review, we do not deem lack of inclusion of that factor in those questions is significant.

Here, we have chosen to consider, as a factor supporting defendant’s right to a summary judgment, the fact that plaintiff had benefit of counsel during a significant portion of the limitation period provided by the insurance policy. We do not suggest that defendant may not have been entitled to a summary judgment absent that factor. The rights of an unrepresented insured under otherwise similar circumstances need not be decided at this time.

Accordingly, we reverse the decision of the circuit court denying summary judgment and remand the cause to the circuit court of Morgan County with directions to enter summary judgment in bar of action in favor of defendant and against plaintiff.

Reversed and remanded with directions.

STEIGMANN and McCULLOUGH, JJ., concur.


source: Caselaw Access Project

author: JUSTICE SPITZ

license: Public Domain

text:
    PAMELA McQUEEN BAIRD, Plaintiff-Appellant, v. MEHDI ADELI, Defendant-Appellee (William Bennett et al., Defendants).
    Fourth District
    No. 4—90—0503
    Opinion filed May 30, 1991.

      Michael D. Clary, of Danville, for appellant.
    Richard F. Record, Jr., and Richard C. Hayden, both of Craig & Craig, of Mattoon, for appellee.
   JUSTICE SPITZ

delivered the opinion of the court:

This is an appeal by the plaintiff Pamela McQueen Baird from a judgment entered in favor of defendant Mehdi Adeli following a jury trial in the circuit court of Vermilion County. Plaintiff sought to recover damages for the alleged negligence of the defendant in providing medical treatment to plaintiff for injuries to her right hand after she cut herself with a knife. Plaintiff also sued William Bennett and Lakeview Medical Center. Prior to trial, Lakeview Medical Center was dismissed as a defendant, and after Bennett was cross-examined as an adverse witness, he was also dismissed as a defendant.

On appeal, plaintiff raises four issues. These issues are: (1) whether the trial court erred by denying plaintiff’s motion for voluntary dismissal; (2) whether the trial court erred by granting defendant’s motion in limine excluding certain opinions of plaintiff’s expert; (3) whether the trial court erred in admitting opinions of defendant’s expert because the opinions were too speculative, were not disclosed in pretrial discovery, and violated an order in limine; and (4) whether the trial court erred by admitting the testimony of a physician with whom plaintiff consulted. The facts relevant to each issue will be presented as each issue is analyzed.

The first issue to be considered is whether the trial court erred by denying plaintiff’s motion for voluntary dismissal. The trial court convened for a hearing on this matter on November 27, 1989. Initially the judge and the attorneys conferred regarding the number of peremptory challenges and the need for alternate jurors. However, before conducting voir dire, motions in limine were presented and considered by the trial court. Regarding what occurred following the consideration of these motions, the report of proceedings contains the following parenthetical entry:

“(The parties adjourned to open court for the voir dire, which was conducted; those proceedings not being contained herein at the request of counsel. The following proceedings were held immediately pursuant to the lunch recess, and prior to the commencement of the afternoon session of voir dire.)”

The next event recorded in the report of proceedings was plaintiff’s tendering of a motion for voluntary dismissal. (Ill. Rev. Stat. 1989, ch. 110, par. 2—1009.) The docket entry of the trial court for November 27, 1989, states that during voir dire, no jurors were selected. However, the trial court excused seven jurors for cause and plaintiff used two peremptory challenges. Following lunch recess, plaintiff moved for a voluntary dismissal. Over objections, the motion was allowed pending reimbursement of costs to the defendants then in the case. The jury was excused, but was to return at 1:30 p.m. on November 28, because there was no agreement as to the costs.

On November 28, the trial court indicated that, after considering the opinion of this court in Cummings v. Simmons (1988), 167 Ill. App. 3d 544, 521 N.E.2d 634, the trial court was inclined to reverse the earlier ruling on the motion for voluntary dismissal. After hearing further arguments of counsel, the trial judge did reverse the earlier ruling and the cause proceeded to jury selection.

On appeal, plaintiff’s argument is, essentially, that while she does not disagree with the rules of law announced in Cummings and in Kahle v. John Deere Co. (1984), 104 Ill. 2d 302, 472 N.E.2d 787, as the law is applied to the facts of this case, plaintiff’s motion for voluntary dismissal should have been granted. Plaintiff argues no trial started here because no jurors were examined and sworn. The rules of law set forth in Cummings are these:

“The sole issue presented for review is whether trial had begun for purposes of section 2—1009. Plaintiff essentially argues trial begins when evidence is presented. Defendants contend jury selection is part of trial.
Voluntary dismissal is governed by section 2 — 1009 of the Code, which states:
‘Voluntary dismissal, (a) The plaintiff may, at any time before trial or hearing begins, upon notice to each party who has appeared or each such party’s attorney, and upon payment of costs, dismiss his or her action or any part thereof as to any defendant, without prejudice, by order filed in the cause. Thereafter the plaintiff may dismiss, only on terms fixed by the court (1) upon filing a stipulation to that effect signed by the defendant, or (2) on motion specifying the ground for dismissal, which shall be supported by affidavit or other proof. After a counterclaim has been pleaded by a defendant no dismissal may be had as to the defendant except by the defendant’s consent.
■(b) Counterclaimants and third-party plaintiffs may dismiss upon the same terms and conditions as plaintiffs.’ Ill. Rev. Stat. 1985, ch. 110, par. 2—1009.
This statute and its former version, section 52 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 52), were designed to correct abuses possible under a predecessor statute, which allowed a plaintiff who feared an unfavorable result to voluntarily dismiss the proceedings at any time before the jury retired or, in a bench trial, before the case was submitted for decision. (Ill. Rev. Stat. 1931, ch. 110, par. 70; see In re Marriage of Wright (1980), 92 Ill. App. 3d 708, 711, 415 N.E.2d 1196, 1199.) The legislative history of section 52 of the Civil Practice Act indicates the section, as originally drafted, permitted plaintiff to dismiss his action as of right no later than the time of defendant’s answer or motion attacking the complaint. (See Comment, The Vanishing Right of a Plaintiff to Voluntarily Dismiss His Action, 9 J. Marshall J. Prac. & Proc. 853, 855 n.8 (1976).) Although the Senate approved this version, the House amended the section to require that the motion be made before trial or hearing begins. (58th Ill. Gen. Assem., House Journal, 1933 Sess., at 1010.) The resulting statute reflected a compromise between two views: the view that a plaintiff has an unfettered ability to dismiss his case, and the view that the inconvenience and expense suffered by a defendant can thwart a plaintiff’s right of dismissal. In re Marriage of Wright (1980), 92 Ill. App. 3d 708, 711, 415 N.E.2d 1196, 1199.
The right of a plaintiff to voluntarily dismiss his case is absolute once he complies with section 2—1009. (Kern v. Peabody Coal Co. (1987), 151 Ill. App. 3d 807, 502 N.E.2d 1322.) Whether a trial or hearing has begun is not a matter of discretion but a substantial legal question which determines whether the court erred by not deciding if any conditions should have been imposed on the dismissal. Kahle v. John Deere Co. (1984), 104 Ill. 2d 302, 472 N.E.2d 787.
The Code does not define the term ‘trial.’ In determining whether trial has begun for purposes of section 2—1009, Illinois courts have looked to certain factors. In Gilbert v. Langbein (1951), 343 Ill. App. 132, 98 N.E.2d 140, voluntary dismissal
was ruled inappropriate where jury selection and an opening statement had been made. Voluntary dismissal was ruled inappropriate after the jury had been examined and sworn in Wilhite v. Agbayani (1954), 2 Ill. App. 2d 29, 118 N.E.2d 440.
In Cosmopolitan National Bank v. Goldberg (1959), 22 Ill. App. 2d 4, 159 N.E.2d 1, the court combined the Gilbert and Wilhite rationales. In Cosmopolitan, the parties appeared ready for trial on the scheduled date. While jurors were being summoned, counsel and the judge discussed the litigation in chambers. As a result of this discussion, the court gave the defendant 10 days in which to file an amended affidavit, and plaintiff was given 10 additional days in which to reply. Within this period, plaintiff appeared in court with a motion to voluntarily dismiss without prejudice. The court granted the motion. In determining that trial had not begun, the court stated the mere summoning of the jury did not constitute a trial. However, if jurors were examined and sworn, and plaintiff’s counsel had made an opening statement, trial had begun. Since none of these events had occurred, dismissal was proper. See also Jost v. Hill (1964), 51 Ill. App. 2d 430, 201 N.E.2d 468 (since dismissal was requested prior to jury selection, voluntary dismissal of two counts of the complaint was proper).
The supreme court adopted the Cosmopolitan reasoning in Kahle v. John Deere Co. (1984), 104 Ill. 2d 302, 472 N.E.2d 787. On the trial date, motions were heard during the morning session. After a noon recess, and before the jury had been selected, plaintiff moved for voluntary dismissal under section 2— 1009. In rejecting the defendant’s argument that trial had begun when the preliminary motions were heard, the supreme court looked to the fact that no jury had been selected, no prospective jurors had been examined or sworn, and counsel had made no opening statement in determining trial had not begun. See also Lighthart v. Pevsner (1987), 157 Ill. App. 3d 66, 510 N.E.2d 84 (granting of motion for voluntary dismissal was proper when made before voir dire).
While no case addresses whether a panel of four jurors constitutes a jury for purposes of section 2 — 1009 analysis, we need not determine whether a jury existed, since Kahle states that the examination of prospective jurors is an indicator trial has begun. It is clear from the record that the proceedings on July 27, 1987, concerned the examination and swearing in of jurors. Under the rationale of Kahle, trial had begun when plaintiff moved to dismiss her case July 28.
As a practical matter, jury selection can take days, weeks, or months. To allow plaintiff to dismiss her cause of action after voir dire has begun and before all 12 jurors are sworn in can result in abuse analogous to that designed to be corrected by section 2 — 1009. Under plaintiffs theory, a plaintiff who had expended all his peremptory challenges could move for voluntary dismissal in the later stages of jury selection if the remaining jurors were not to his liking. This would result in a waste of judicial resources as well as the resources of the parties. While inconvenience may occur in our adversary system (Kahle, 104 Ill. 2d at 305, 472 N.E.2d at 789), we are not persuaded the legislature intended that section 2 — 1009 should cause this kind of result.
Plaintiff cites in support of her position a number of cases outside this jurisdiction. We need not consider those cases, as they arise under statutory provisions different from that in effect in this State. Our legislature may wish to consider amending section 2—1009 to provide guidance in future cases.” Cummings, 167 Ill. App. 3d at 546-48, 521 N.E.2d at 635-37.

In Cummings, this court relied on the waste of judicial resources as the rationale for denying the motion for voluntary dismissal. This reasoning is no less persuasive where the jury selection process has begun, even though no jurors have actively been sworn. Therefore, it is logical that trial is deemed to begin when the jury selection process begins. Plaintiff’s interpretation of Kahle as holding trial commences only when jurors are sworn is not supported by a reading of Kahle. In Kahle, the court relied on the fact no jurors had been examined “or” sworn. In the case at bar, the trial court did not err by denying plaintiff’s motion for voluntary dismissal.

The next issue to consider is whether the trial court erred by granting defendant’s motion in limine excluding certain opinions of plaintiff’s expert. Prior to trial, defendant filed a motion in limine which requested, in part, that plaintiff’s expert, Marshall Patullo, an orthopedic surgeon, be barred from rendering any opinions contrary to those previously expressed in his discovery deposition or written report. As defendant’s counsel argued, he was particularly concerned with any change in the expert’s opinion regarding treatment of the fourth and fifth fingers of plaintiff’s right hand.

At trial, the plaintiff made the following offer of proof:

“Q. [Plaintiff’s attorney]: Doctor, do you have an opinion based upon a reasonable degree of medical and surgical certainty as to whether Dr. Adeli’s failure to institute physical therapy at a time prior to March 25, 1983, was a breach of the standard of care of orthopedic surgeons?
* * *
A. I do have an opinion.
Q. What is that opinion?
A. My opinion is that Dr. Adeli’s failure to institute any kind of motion, physical therapy or any other kind of motion that I can find, was a breach of a standard, since it is well known that flexor tendon injuries are prone to scarring; and the earlier the motion can be instituted the less likely it is for those adhesions to form.
Q. Doctor, do you have an opinion based upon a reasonable degree of medical and surgical certainty as to whether Dr. Adeli’s failure to institute physical therapy for the little finger of Pam’s right hand prior to March 25, 1983 was a breach of the standard of care of an orthopedic surgeon?
A. I believe that the failure to get those fingers moving-now you use the specific phrase physical therapy, that implies another party working those hands. The important thing is motion, and that motion is something that the patient herself should have been instructed to do. Physical therapy is also important, and I think that that should have been instituted longer. I believe that there is some latitude as to the period of time, and that’s primarily dependent upon the patient, upon a surgeon’s judgment as to the integrity of the repair that he has made.
Q. All right. Doctor, do you have an opinion based upon a reasonable degree of medical and surgical certainty as to whether Dr. Adeli’s failure to institute a passive range of motion therapy for the little finger of Pam’s right hand prior to March 25, 1983 was a breach of the standard of care required of orthopedic surgeons?
A. I do have an opinion.
Q. And what is that opinion?
A. The opinion is that that was a breach of the standard, for the reasons I have said in the answer to the previous question.
Q. The question with respect to the ring finger.
A. Correct.
Q. Do you have an opinion based upon a reasonable degree of medical and surgical certainty as to whether the failure to institute a passive range of motion therapy to Pamela McQueen’s ring finger prior to March 25, 1983 caused injury or damage to her ring finger?
A. I think that I do have an opinion.
Q. What is that opinion?
.A. And the opinion is that that failure contributed to the severe stiffness of the finger that necessitated additional surgery.
Q. And Doctor, do you have an opinion based upon a reasonable degree of medical and surgical certainty as to whether the failure to institute a passive range of motion therapy on Pamela McQueen Baird’s right little finger prior to March 25, 1983, caused injury or damage to her right little finger?
A. I do have an opinion.
Q. And what is that?
A. The opinion is the same as it was for the fourth finger.
Q. And what do you base those opinions on?
A. Flexor tendon, especially in the finger itself, is in an area in which scar tissue can very quickly inhibit the motion of the tendon. In order for that tendon to perform its function efficiently it must glide through a tunnel. When there has been injury to that tendon, if the tendon — if the finger is allowed to be completely egressed, the tendon is not made to move in any way. The ingrowth of cells between the tendon and the sheath that immediately surrounds it acts as a binder, preventing effective motion in the future.”

Attached to plaintiff’s written response to the motion in limine were several exhibits. Exhibit A was a copy of a letter to Patullo from plaintiff’s attorney dated November 14, 1989. The letter indicates Patullo was being sent transcripts of his deposition and those of Drs. Bennett, Zook, Adeli, Schrodt, and Madden. Patullo was asked to review those transcripts and the following medical records: (1) physical therapy notes from Lakeview Medical Center for May 25, 1983, through January 2, 1984; (2) Zook’s office notes from August 29, 1983, through February 2, 1984, and a letter to plaintiff’s attorney dated June 26, 1984; (3) Lakeview Medical Center records from March 2 to March 4, 1983; (4) Adeli’s office notes from March 7 through April 4, 1983; (5) office notes of Dr. Bavishi from May 12 through September 20, 1983; and (6) Memorial Medical Center records for hospitalizations on October 12, 1983, February 8, 1984, and May 17,1984.

Exhibits B, C, and D were photocopies of portions of the July 28, 1987, discovery deposition of Patullo, which included the following testimony:

“Q. With regard to any follow-up care and treatment rendered by Dr. Adeli to the small finger, was there any deviation from acceptable medical practice?
A. I am trying to find, and maybe one of you could help me, the physical therapy notes to indicate when physical therapy was started.
Q. They are right here, here is the physical therapy, May 13,1 think. You may need Adeli’s too.
A. That is what I was looking for. May we go off the record? (Brief discussion off the record)
A. Mr. Hayden, I think that I felt that Dr. Adeli failed to institute physical therapy as early as it would seem reasonable to do. Now, I hesitate, I. am hesitating slightly in saying that, because there is certainly some judgment to be used, depending on the physician’s assessment of how secure a repair has been made, but it is well recognized by all ***. [The remainder of
Patullo’s answer is not included in the exhibit.]
* * *
Q. Can you state within a reasonable degree of medical certainty that the failure to institute physical therapy prior to March 25 caused injury or damage to Pamela McQueen’s fifth finger?
A. I can’t say that with certainty.
Q. These are only possibilities to you, as I understand your prior testimony, they are not probabilities?
A. I think they are deviations from the average that would be followed in such cases. I don’t think that these are overt negligence.
Q. Okay, and concerning still the fourth finger, was there any act or omission to act on the part of Dr. Adeli that caused injury or damage to Pamela McQueen’s fourth finger?
A. The same answers as were given in the care of the fifth finger, and that is, the failure to institute physical therapy in what I believe to be an appropriate time interval.”

Exhibit E was an affidavit of plaintiff’s counsel, which stated as follows:

“2. Dr. Marshall Patullo Grand Rapids, Michigan has been retained by the Plaintiff as an expert witness in this case.
3. Dr. Patullo’s discovery deposition was taken on July 28, 1987 with all parties participating. After that, counsel for Plaintiff did not have occasion to discuss Dr. Patullo’s opinions with him until preparation for the start of this trial.
4. On November 14, 1989 I sent Dr. Patullo a copy of the documents of importance in this case for him to review.
5. Because of our schedules and the Thanksgiving holiday, I was not able to confer specifically again with Dr. Patullo regarding his opinions until November 26, 1989 at approximately 10:00 a.m.
6. At that time Dr. Patullo informed me that he no longer believed the failure of Dr. Adeli to institute physical therapy Was just a deviation from the average but that after a review of those documents he could state that in his opinion it was a breach of standard of care.
7. I did not know he was going to express that change of opinion until he so informed me at that time.”

Bennett’s deposition was scheduled for September 18, 1987, Adeli’s deposition on June 10, 1986, Madden’s on September 9, 1988, and Schrodt’s on September 29, 1988. While plaintiff’s attorney wrote to Patullo on July 24 and October 13, 1989, plaintiff’s attorney did not submit transcripts of those depositions to Patullo at that time. Moreover, a letter dated June 11, 1986, establishes the experts’ involvement in this case over 2xk years before trial. Defendant submitted interrogatories to plaintiff pursuant to Illinois Supreme Court Rule 220 (134 Ill. 2d R. 220) on March 29, 1985, and supplemental interrogatories pursuant to Rule 220 on August 14, 1986. In arguing the motion in limine, defendant’s attorney stated additional Rule 220 interrogatories were sent in July 1989 and on February 29, 1988. According to plaintiff’s attorney, in answering interrogatories concerning Patullo’s opinion, plaintiff merely referred to Patullo’s deposition. However, neither the interrogatories nor the answers thereto are included in the record on appeal.

In granting the motion in limine, the trial court noted the purpose of the rule was to provide for timely and appropriate disclosure of opinions so as to allow the opposing party an opportunity to fully explore those opinions. The trial court concluded the eve of trial was too late for plaintiff to disclose a change in Patullo’s opinion.

Rule 220 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 witnesses, 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. In any event, as to all expert witnesses not previously disclosed, the trial court, on its own motion, or on the motion of any party after the first pretrial conference, shall enter an order scheduling the dates upon which all expert witnesses, including rebuttal experts, shall be disclosed. The schedule established by the trial court will sequence the disclosure of expert witnesses in accordance with the complexities of the issues involved and the burdens of proof of the respective parties as to those issues. All dates set by the trial court shall be chosen to insure that discovery regarding such expert witnesses will be completed not later than 60 days before the date on which the trial court reasonably anticipates the trial will commence. Upon disclosure, the expert’s opinion may be the subject of discovery as provided in paragraph (c) hereof. 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.
* * *
(c) Discovery.
(1) Upon interrogatory propounded for that purpose, the party retaining or employing an expert witness shall be required to state:
(i) the subject matter on which the expert is expected to testify;
(ii) his conclusions and opinions and the bases therefor; and
(iii) his qualifications.
* * *
(3) A party shall be required to seasonably supplement his answers to interrogatories propounded under this rule as additional information becomes known to the party or his counsel.
***
(d) Scope of Testimony. To the extent that the facts known or opinions held by an expert have been developed in discovery proceedings through interrogatories, depositions or requests to produce, his direct testimony at trial may not be inconsistent with [n]or go beyond the fair scope of the facts known or opinions disclosed in such discovery proceedings. However, he shall not be prevented from testifying as to facts or opinions on matters regarding which inquiry was not made in the discovery proceedings.” 134 Ill. 2d Rules 220(b), (c), (d).

The purpose of Rule 220, generally, is to promote the timely and good-faith pretrial disclosure of expert witnesses to prevent surprise and to facilitate pretrial investigation of credentials of the expert and preparation of cross-examination as well as the substance of the testimony of the opposing party’s own expert. (Dixson v. University of Chicago Hospitals & Clinics (1989), 190 Ill. App. 3d 369, 546 N.E.2d 774; Phelps v. O'Malley (1987), 159 Ill. App. 3d 214, 511 N.E.2d 974; McDonald’s Corp. v. Butler Co. (1987), 158 Ill. App. 3d 902, 511 N.E.2d 912.) When the trial court has imposed sanctions for noncompliance with Rule 220, the trial court’s ruling will not be upset in the absence of a showing that the ruling resulted from an abuse of discretion. Dixson, 190 Ill. App. 3d 369, 546 N.E.2d 774.

However, each subsection of the rule has a different function. Whereas Rule 220(b) allows a trial court to establish a disclosure schedule so as to disqualify an expert who is not properly disclosed, Rules 220(c) and (d) require timely notification of shifts in an expert’s theory or belief and the limiting of the expert’s testimony accordingly.

A clear example of how Rules 220(c) and (d) work can be seen by comparing Singh v. Air Illinois, Inc. (1988), 165 Ill. App. 3d 923, 520 N.E.2d 852, and Stringham v. United Parcel Service, Inc. (1989), 181 Ill. App. 3d 312, 536 N.E.2d 1292. In Singh, the court held that merely because the expert updated his original report on the present-value calculation of decedent’s earning capacity in a wrongful death action did not prevent the expert testifying to same since the expert’s revisions did not involve a shift in theory or belief and the same methodology and tables were used to update the original report. In Stringham, however, the trial court properly barred the expert from testifying as to the present value of decedent’s future earnings in a wrongful death action where it was earlier disclosed that the expert’s testimony was to relate to the present value of future cost of support.

In this case, plaintiff’s attorney withheld from plaintiff’s witness, until shortly before trial, medical evidence and testimony. Based on the review of those documents, Patullo changed his opinion. Some of the withheld evidence and testimony was available when the expert was deposed, and the remaining evidence and testimony was available for review at a time considerably in advance of plaintiff’s attorney’s request for such review by plaintiff’s expert. The trial court could reasonably determine that the plaintiff’s attorney utilized a procedure to avoid the Rule 220(c) requirement of ongoing disclosure of shifts in the expert’s opinion testimony. The trial court barred the expert from testifying in a manner inconsistent with his deposition testimony. No abuse of discretion has been demonstrated.

The four cases cited to this court by plaintiff are clearly distinguishable. Illini Aviation, Inc. v. Walden (1987), 161 Ill. App. 3d 345, 514 N.E.2d 551, involves not a change in the expert’s testimony, but instead the nondisclosure of an expert witness. Therefore, it is Rule 220(b) and not Rules 220(c) and (d) which are applied in Illini Aviation. McGuckin v. Chicago Union Station (1989), 191 Ill. App. 3d 982, 548 N.E.2d 461, also involves the question of nondisclosure of experts, and more specifically whether the witnesses were “retained to render an opinion at trial.” As a result, the reasoning in McGuckin has no application to the present case. In Crawford County State Bank v. Grady (1987), 161 Ill. App. 3d 332, 514 N.E.2d 532, this court considered the question of whether sufficient prejudice requiring reversal had been demonstrated where the trial court allowed an expert to testify in spite of a discrepancy between the testimony at trial and the expert’s written report. This court found no prejudice was demonstrated since the testimony was merely cumulative to other competent testimony. Merely because no prejudice was demonstrated in Crawford County State Bank does not necessarily require a finding in the case at bar that the trial court erred by refusing to allow in the objectionable testimony. Nor does the cited case of Mazur v. Lutheran General Hospital (1986), 143 Ill. App. 3d 528, 493 N.E.2d 62, support plaintiff’s position. In Mazur, a defense expert was allowed to answer a hypothetical question at trial inconsistent with testimony given in a deposition because the expert was not previously aware of an addendum to the initial pathological report and because plaintiff did not inquire with respect to such evidence at the deposition. Mazur is somewhat troubling for these reasons: (1) the addendum to the pathology report was prepared on November 2, 1983; and (2) a copy of the addendum was sent to the expert by defendants’ attorneys only two days before trial started. However, there is no indication in the opinion of when the addendum came into the possession of the defense attorney. The court noted that defendants’ counsel had only become aware of the witness’ prepared answer to the hypothetical question the night before the witness was to testify, and suggested there would have been a different result had defendants elicited the pathologist’s testimony such that it might be argued the addendum was deliberately withheld to plaintiff’s prejudice. Furthermore, the argument that the answer to the hypothetical question was inconsistent with the deposition testimony was deemed waived because plaintiff’s counsel objected to the withdrawal of the question and answer and cross-examined on it. Therefore, the cases cited by plaintiff do not require this court to find an abuse of discretion in the instant case.

The third issue under consideration is whether the trial court erred in admitting opinions of defendant’s expert because the opinions were too speculative, were not disclosed in pretrial discovery, and violated an order in limine. Joseph Schrodt, an orthopedic surgeon, testified on behalf of defendant. During the direct examination of Schrodt, the following exchange occurred:

“Q. [Defense Counsel] Doctor, do you have an opinion -within a reasonable degree of medical certainty as to whether or not on March 25, 1983 when Dr. Adeli last saw this patient, there was a profundus tendon function in the right middle finger?
A. I do have.
Q. What is your opinion?
A. There was.
Q. Doctor, have you subsequently learned in your review of records that there was a repair of the profundus tendon in the middle finger?
A. Yes.
Q. Doctor, do you have an opinion based upon your review of medical records in this case as to whether or not there was any event or events which occurred in Pamela McQueen’s treatment that would explain the severance of the tendon?
A. I’m not aware of any events of treatment that would be related to that.
Q. Were there any events that would not constitute treatment that in your opinion might or could have severed the tendon in the middle finger?”

To this question, plaintiff’s counsel interposed an objection on the ground that the question asked the witness to speculate. Initially, the objection was sustained, but after a side-bar conference, the trial judge stated she would allow defense counsel to inquire about the witness’ opinion as to causation to a reasonable degree of medical certainty. Thereafter, the direct examination of Schrodt continued as follows:

“Q. Doctor, do you have an opinion based upon a reasonable degree of medical certainty that would explain, sir, how the tendon could have been severed and repaired subsequently, and not be present during the examination by Doctors Adeli and Bennett? Do you have an opinion, sir?
A. I do have.
Q. What is your opinion?
[Plaintiff's counsel]: Your Honor, please register my objection again to that question.
THE COURT: I will overrule the objection.
Q. What is your opinion, sir?
A. There is a possibility.
Q. What is that, sir?
A. There was in the physical therapy notes record of an altercation in which the Plaintiff sustained injuries, including facial injuries, rib fractures, and could have possibly injured the tendon in that event.
Q. Was there function in the middle finger prior to that incident you’ve just described?
A. There was in the records of the hospital record that I have previously talked about.
Q. And was there function in the middle finger, profundus function to the DIP joint following that incident you’ve described?
A. No.
Q. Do you know the date of that incident, sir?
A. It was the last part of May, I believe, but I would have to look at those records again. I’m not sure.
Q. And that would be 1983?
A. Yes, sir.”

Plaintiff neither objected to nor moved to strike the witness’ testimony. Instead, plaintiff attempted to challenge that testimony through cross-examination of the witness:

“[Plaintiff’s attorney]: Dr. Schrodt, the incident that you referred to in the end of May, 1983, from your review of the record, there was no statement of any kind in the record anywhere which indicated the long finger of Pam’s right hand had been cut at that time, is there?
A. No, sir, that’s correct.
***
Q. Dr. Bavishi made a physical examination of the Plaintiff, Pam McQueen Baird, on May 12,1983 didn’t he?
A. Yes, he did.
Q. With respect to his examination of her middle finger or long finger at that time he stated or found that there was no active flexion at the distel interphalangeal joint at that time, didn’t he?
A. Yes, he did.
Q. That would be the end joint of her right long finger?
A. That’s correct.
Q. That meant he found no ability in her to move that finger at that joint on her own?
A. That’s correct.
Q. You also indicated that you reviewed the physical therapy notes from Pam’s treatment?
A. That’s correct.
Q. Did you examine the physical therapy record from May 13, 1983?
A. I examined all those. Some of those are not very good copies, but I did examine all of those records, yes, sir.
Q. On May 13, 1983, when the physical therapist performed an evaluation of the motion of the end joint of Pam’s long finger, and that there was no active flexion at that joint, didn’t she?
A. Yes.”

Plaintiff raises three contentions concerning the testimony. First, plaintiff argues the testimony is speculative and should not have been allowed. Second, she argues this testimony violates Rule 220, because Schrodt testified in his discovery deposition as follows: “It was discovered later that the tendon was not intact, but there’s no actual time that one can say that the complete severance actually occurred.” Plaintiff’s third argument is that the testimony violates an order in limine precluding testimony regarding injuries to plaintiff suffered to parts of her body other than her right hand on dates other than March 2,1983.

The third contention can be most easily disposed of because there was no order in limine. Instead, the trial judge made the following statement:

“So what I will do is, after the plaintiff has testified, when you wish to get into a line of inquiry along this line about these prior events, then if you approach the bench and tell me when you are about ready to do it, and at that point we can, I think, more accurately determine whether or not it’s appropriate.”

There was a side bar prior to the testimony in question and it was obvious from the arguments of counsel that defendant was going to inquire into some cause of injury other than treatment.

Furthermore, plaintiff has waived this contention for purposes of review. In order to save a contention for review, a proper objection must be made. To be effective, the objection must specifically state the grounds for exclusion unless the ground is obvious from the context. Where a specific objection is made, all grounds not specified are waived. M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §103.2 (5th ed. 1990).

In the case at bar, plaintiff objected on the specific grounds that speculation was required of the witness. No objections having been made on the grounds that the testimony violated Rule 220 or violated an order in limine, these contentions are waived. The defendant also argues that plaintiff’s contention regarding speculation by the witness is also waived because, after the objection was overruled, plaintiff proceeded to cross-examine the witness. Defendant relies on Mazur. However, in Mazur there was an election by counsel to proceed to cross-examine after opposing counsel offered to withdraw the objected to testimony. No election being present here, once the court has overruled an objection, the objecting party may cross-examine the witnesses. However, after cross-examining the witness, which cross-examination, according to plaintiff, further demonstrated the witness was speculating, plaintiff did not renew her objection, move to strike the offensive testimony, and request the court to direct the jury to disregard it.

On the merits, it is permissible for an expert to testify concerning the expert’s opinion in terms of possibilities or probabilities (Nicholas v. City of Alton (1982), 107 Ill. App. 3d 404, 437 N.E.2d 757; Presswood v. Morris (1979), 70 Ill. App. 3d 513, 388 N.E.2d 844), but the opinion of a medical expert must be based on a reasonable degree of medical certainty. (Collins v. Straka (1987), 164 Ill. App. 3d 355, 517 N.E.2d 1147.) Nevertheless, an expert may not guess, surmise, or conjecture as to a possible cause for the injury based on matters which could not be shown to have existed. For example, in Kanne v. Metropolitan Life Insurance Co. (1941), 310 Ill. App. 524, 34 N.E.2d 732, a physician was not allowed to testify that death might have resulted from chronic myocarditis instead of drowning where there was no evidence the decedent suffered from any such illness and the inference was based on the fact the body was floating only partially submerged. In Gariti v. Karlin (1970), 127 Ill. App. 2d 166, 262 N.E.2d 179, the doctor’s opinion that a diabetic could lose control of an automobile was considered speculative because there was no evidence the motorist in question was a diabetic before the accident, the diabetic condition was severe enough to cause loss of coordination, or the motorist’s vehicle in fact crossed the centerline before the collision. In Coffey v. Brodsky (1987), 165 Ill. App. 3d 14, 518 N.E.2d 638, a physician could not speculate, in a medical malpractice action, that there was thickening of the peritonium and a resultant lack of pliability which would have contributed to injury in absence of negligence where there was no medical evidence that such thickening of the peritonium and lack of pliability was observed during surgery.

In the case at bar, the facts upon which the expert’s opinion was based did exist. There was a fight in which plaintiff became injured. However, the record does not disclose any medical reports or testimony which conclusively established that the fight caused a second injury to plaintiff’s hand. The expert should, therefore, not have been allowed to opine that this fight could have caused an injury to plaintiff’s hand which defendant did not observe previously. In any event, plaintiff’s cross-examination of Schrodt clearly brought to the jury’s attention the fact that the medical records do not disclose a subsequent injury. Furthermore, the jury could infer and defendant’s counsel could argue that the finger was injured in the fight because, otherwise, defendant would have observed the lack of motion. Such an argument and inference are available by resort to common experience and need not require an expert to opine that a second injury occurred during the fight. For these reasons, we find that no reversible error occurred as a result of Schrodt’s testimony.

The final contention to consider on the merits is whether Schrodt’s testimony violated Rule 220(d). As has already been discussed, Rule 220(d) prohibits an expert from testifying inconsistent with or going beyond facts or opinions discussed in discovery unless inquiry had not been made in discovery regarding the subject matter of the trial testimony. For this reason, in Bart v. Union Oil Co. (1989), 185 Ill. App. 3d 64, 540 N.E.2d 770, a pathologist was not allowed to testify that decedent might have survived the initial explosion and suffered pain prior to death where the pathologist previously stated during discovery that he could not opine, based upon a reasonable degree of medical certainty, whether decedent suffered any conscious pain and suffering.

Defendant suggests there is a distinction between saying at deposition, “there’s no actual time that one can say that the complete severance actually occurred” and the trial testimony concerning the “possibility” another incident caused the severance of the tendon. Technically, defendant is correct. And, certainly, plaintiff could have explored the possibilities and probabilities of other causes for the complete severance of the tendon.

Defendant’s cited cases demonstrate little, if any, support for defendant’s position. In Caruso v. Pine Manor Nursing Center (1989), 182 Ill. App. 3d 879, 538 N.E.2d 722, the court held that an expert’s testimony could not be entirely barred where only a portion of the expert’s testimony exceeded the scope of matters developed in the deposition. Therefore, to suggest, as does defendant, that had the trial court barred Schrodt’s testimony on this line of questioning, reversible error would have occurred based on the reasoning in Caruso is incorrect. In Georgacopoulous v. University of Chicago Hospitals & Clinics (1987), 152 Ill. App. 3d 596, 504 N.E.2d 830, the objectionable portion of the expert’s testimony was admitted only to explain earlier testimony and did not form the basis of the witness’ expert opinion. As a result, Rule 220 was not violated. In Northern Trust Co. v. St. Francis Hospital (1988), 168 Ill. App. 3d 270, 522 N.E.2d 699, the court compared the deposition and trial testimonies of the witness and found no inconsistency existed. Defendant does not argue there is no inconsistency in the case at bar, but that plaintiff failed to inquire at the deposition concerning matters later disclosed at trial. Defendant cites Northern Trust, as an example of the type of question plaintiff could have asked at the deposition in order to avoid surprise at trial. In Northern Trust, the expert was asked about the decedent’s chances for survival had he been admitted to the hospital at his first visit at 1:30 a.m. and at the time of his admission to the hospital, at 6:30 a.m. The expert couched his answers in terms of percentages. Nevertheless, had the issues not been waived in the instant case, no reversible error occurred.

The final issue to be considered is whether the trial court erred by admitting the testimony of a physician with whom plaintiff consulted. Plaintiff objected to the testimony of Dr. John William Madden, of Tucson, Arizona, on the grounds that Madden’s testimony could only relate to the “aftercare” of plaintiff’s ring and little fingers since he saw plaintiff after Dr. Elvin G. Zook surgically set the dip joint of plaintiff’s middle finger so there would be no range of motion therein. Plaintiff argues if the only issue in this trial pertained to plaintiff’s middle finger, and not the other fingers, then Madden’s testimony would be irrelevant.

Madden described his examination of plaintiff’s right hand, including the thumb and index finger, both of which he found to have normal motion and feeling. He then went on to discuss his findings concerning the remaining three fingers. Plaintiff complained to him of an inability to use her hand in the way she wanted. However, she was vague about this, and when patients are vague regarding the types of functions which cannot be performed, it is critical to specifically define these functions. Therefore, plaintiff was to take very specific notes of her daily activities for two weeks and return to the therapist. In line with this recommendation, Madden made an appointment for her at the Hand Therapy Group in Tucson. However, plaintiff did not follow through with the recommended program.

Plaintiff complains that this testimony is prejudicial to her by creating an inference that the failure to follow up on Madden’s program contributed in some way to her condition. As that may be, the trial court properly allowed the- evidence deposition to be presented over plaintiff’s objection. Defendant agreed at trial that, if the only issue concerns the dip joint of plaintiff’s middle finger and the remainder of the middle finger is normal as to sensation and motion, the deposition was unnecessary. Obviously, plaintiff did not concede that point. And while it is true that some of Madden’s testimony concerns his examination of injured fingers for which injuries no issue at trial related, plaintiff cannot have the entire deposition withheld from evidence merely because a portion of it is irrelevant. Nor do we agree with plaintiff’s assumption that Madden must have been concerned only with the functioning of the ring and little finger. His concern was the use of the entire hand, including the middle finger.

Evidence may be admitted if it is relevant to a disputed issue and its prejudicial effect does not substantially outweigh its probative value. Evidence is relevant if it tends to make more or less probable the existence of any fact which is of consequence to the determination of the action. It is the trial court’s function to weigh the probative value and prejudicial effect of the evidence in determining whether the evidence should be admitted. Once the trial court has made an evidentiary ruling, that ruling will not be overturned on appeal unless it is clearly shown to have resulted from an abuse of discretion. (People v. Gonzalez (1991), 142 Ill. 2d 481, 568 N.E.2d 864.) Clearly, the failure of plaintiff to follow up Madden’s program is relevant to whether any alleged failure of plaintiff’s hand to properly function, including her middle finger, is due to plaintiff’s failure to follow up on a recommended program of care as opposed to any negligence by defendant.

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

Affirmed.

LUND, P.J., and McCULLOUGH, J., concur.


author: JUSTICE McCULLOUGH

text:
    EDITH CAMERON, Plaintiff-Appellee, v. DAVID BARTELS, Defendant-Appellant.
    Fourth District
    No. 4—90—0854
    Opinion filed May 30, 1991.

      Phillip M. Kirby, of Mason City, for appellant.
    Scott J. Butler, of Rushville, for appellee.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

The trial court entered a temporary restraining order (TRO) and a preliminary injunction against defendant, David Bartels, enjoining him from taking any further action regarding the removal of timber from land owned by plaintiff, Edith Cameron. Defendant appeals the injunction, and raises the following issues for our consideration: (1) whether the trial court abused its discretion in granting the preliminary injunction where the parties are cotenants in the “timber estate” and an adequate remedy of an accounting is available; (2) whether the trial court erred in granting the TRO without all of the necessary parties to the lawsuit being joined; (3) whether the order for injunctive relief must be reversed because it fails to comply with section 11—101 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1989, ch. 110, par. 11—101); and (4) whether the TRO is supported by the evidence. We affirm the entry of the preliminary injunction.

We note at the outset that the defendant refers to the TRO and preliminary injunction in his arguments. Defendant appealed from the preliminary injunction entered on November 13, 1990. We will consider the arguments raised in relation to the preliminary injunction.

Before his death in October 1990, plaintiff’s brother, Wayne Cameron, and plaintiff were coowners of real estate in Schuyler County, Illinois. Before his death, Wayne executed a “timber deed” with defendant whereby Wayne sold to defendant “all marketable timber logs” standing and growing on Wayne’s Schuyler County real estate, together with the right, for a specified period of time, to enter upon said real estate for the purpose of cutting and removing said timber. Wayne died on October 25,1990.

On October 31, 1990, plaintiff filed a petition for declaratory and injunctive relief, seeking (1) a judgment that the timber deed from Wayne to defendant was void and unenforceable, and (2) an order enjoining defendant from going onto plaintiff’s property. In her petition, plaintiff alleged (1) her brother was under duress or mistake of fact when the timber deed was signed; (2) she did not sign the timber deed as cotenant; (3) defendant had entered her property to remove timber; and (4) such actions by defendant would cause irreparable damage to the real estate and constituted an illegal taking of plaintiff’s property. A TRO was entered on November 1, 1990, without notice to defendant, and the court set November 13, 1990, as the date for a hearing on the request for a preliminary injunction. The TRO stated it would expire immediately following the hearing on November 13, 1990.

At the hearing on November 13, defendant testified he and Wayne entered into a timber deed contract on February 13, 1990, whereby defendant, for $10,000, was given all marketable timber logs on Wayne’s property. Defendant testified he was sure plaintiff was aware he was cutting timber on her property before Wayne’s death in October 1990. At the time of the hearing, defendant stated he had removed 18,000 board feet of timber pursuant to the timber deed and he estimated there were 150,000 to 200,000 board feet left on the whole property.

During closing arguments, defendant’s counsel asked that the TRO be extended for a period of 10 days in lieu of a preliminary injunction. The court granted a preliminary injunction, entered the order on November 13, 1990, and set the matter for bench trial, November 29, 1990. In the transcript of the November 13 hearing, the court indicated it was also granting a TRO.

The parties do not dispute that plaintiff and Wayne were coowners of the property in question at the time the timber deed was signed. Each owned six-thirtieths of the property as joint tenants and an undivided nine-thirtieths interest as tenants in common. At Wayne’s death, plaintiff inherited his nine-thirtieths interest by will and succeeded to his six-thirtieths interest as surviving joint tenant.

A preliminary injunction is a provisional remedy granted to preserve the status quo pending a hearing on the merits of the cause. (Bryant v. Village of Sherman (1990), 204 Ill. App. 3d 583, 561 N.E.2d 1320; Lee/O'Keefe Insurance Agency, Inc. v. Ferega (1987), 163 Ill. App. 3d 997, 516 N.E.2d 1313.) In order for a preliminary injunction to issue, the plaintiff must establish, by a preponderance of the evidence, that (1) he possesses a clearly ascertained right in need of protection; (2) he will suffer irreparable harm without the injunction; (3) there is no adequate remedy at law; and (4) he is likely to be successful on the merits of his cause. (Buzz Barton & Associates, Inc. v. Giannone (1985), 108 Ill. 2d 373, 387, 483 N.E.2d 1271, 1278.) An applicant for a preliminary injunction need not make out a case which will entitle him to the ultimate relief he seeks, but need only raise a fair question as to the existence of the right claimed, making it appear advisable that the positions of the parties should remain the same until the court has an opportunity to consider the case on its merits. (Hoover v. Crippen (1987), 151 Ill. App. 3d 864, 867, 503 N.E.2d 848, 851.) Once a protectable interest is established, irreparable injury is presumed if that interest is not protected. (Donald McElroy, Inc. v. Delaney (1979), 72 Ill. App. 3d 285, 389 N.E.2d 1300.) In addition to consideration of the above criteria, the trial court must conclude that the benefits of granting the injunction outweigh the possible injury which a defendant might suffer as a result thereof. Lee/O'Keefe, 163 Ill. App. 3d at 1003, 516 N.E.2d at 1317.

The decision to grant or deny a preliminary injunction rests within the sound discretion of the trial court and will not be disturbed absent a showing of abuse. (Kolstad v. Rankin (1989), 179 Ill. App. 3d 1022, 534 N.E.2d 1373.) The reviewing court’s role is limited to determining whether the court’s findings are against the manifest weight of the evidence. Bryant, 204 Ill. App. 3d at 587, 561 N.E.2d at 1323; Kolstad, 179 Ill. App. 3d at 1031, 534 N.E.2d at 1379.

Initially, defendant contends the trial court erred in granting the injunction because he is a cotenant with plaintiff in the surface “estate” in the land, which includes the timber. Since cotenants are free to use and dispose of their interest in the property as long as the other cotenant is not excluded, injunctive relief is improper. Further, he argues plaintiff has an adequate remedy at law in an action for an accounting.

Plaintiff responds that standing timber is a part of the real estate, that inappropriate removal of timber is waste and the commission of waste by a party may be enjoined. Plaintiff contends defendant’s actions amount to exclusive ownership over the timber, which can be enjoined.

The parties’ arguments address the merits of their controversy by focusing on the legal effect of the so-called timber deed signed by defendant. We note that although designated a timber deed, the document was a written agreement. It was not a deed and was not acknowledged by the seller, Wayne Cameron.

An interlocutory appeal from an order granting a preliminary injunction does not bring the merits of the controversy before the reviewing court. (Scholz v. Barbee (1951), 344 Ill. App. 630, 101 N.E.2d 845, citing McDougall Co. v. Woods (1928), 247 Ill. App. 170.) As stated in McDougall:

“The primary purpose of the statute [governing interlocutory appeals] is to permit a review of the exercise of the discretion lodged in the chancellor with the purpose of determining whether the interlocutory order probably was necessary to maintain the status quo and preserve the equitable rights of the parties.” McDougall, 247 Ill. App. at 174.

An injunction may lie to protect a landowner or a person in possession of real estate. (Stoffel v. Kilian (1946), 329 Ill. App. 498, 69 N.E.2d 352; 43A C.J.S. Injunctions §73, at 77 (1978).) Specifically, an injunction will lie to restrain acts of trespass to real property, which are continuous or constantly recurring, where irreparable injury will result unless they are restrained. (43A C.J.S. Injunctions §78, at 84-85 (1978); see also McRaven v. Culley (1927), 324 Ill. 451, 155 N.E. 282.) Further, the continuous cutting of timber may be a trespass of such character as will be enjoined. (43A C.J.S. Injunctions §79, at 87 (1978).) The basis of the jurisdiction to enjoin the continuous cutting of timber is that irreparable injury results from the destruction of the property right incident to an unauthorized cutting of timber so that pecuniary compensation in damages is not an adequate remedy at law. 43A C.J.S. Injunctions §79, at 88 (1978).

We find the trial court acted within its discretion in enjoining defendant from continuing to cut timber on plaintiff’s property. It is undisputed plaintiff is now the sole owner of the whole property and that plaintiff did not join with her brother in granting defendant any rights to the standing timber on the subject property. Plaintiff has clearly established a right needing protection, possible irreparable harm, and the inadequacy of her legal remedies. Further, plaintiff is likely to be successful on the merits, given that (1) she did not sign the timber deed, and (2) her brother’s actions without her consent cannot bind or prejudicially affect her interest in her real property. In re Marriage of Nicks (1979), 80 Ill. App. 3d 838, 839, 400 N.E.2d 431, 432.

Defendant next argues the trial court erred in entering the order on November 13, 1990, when a necessary party to the lawsuit, the estate of Wayne Cameron (Estate), was not joined in the suit. Defendant contends the Estate is a necessary party because of plaintiff’s allegations in the petition that her brother was under duress and mistake of fact when the timber deed was signed. Plaintiff contends defendant waived this issue because he did not raise it in the court below. Alternatively, plaintiff argues the Estate is not a necessary party to the suit which involves the rights of plaintiff and defendant in the timber estate. Plaintiff maintains the allegations of duress and mistake of fact in the petition were alternative arguments in support of injunctive relief, which plaintiff abandoned at the hearing. Further, plaintiff urges the Estate is not a necessary party because she shares the same interest as the Estate and is capable of protecting its interests. As stated, we will consider this argument as to the injunction.

Generally, all persons should be made parties who are legally or beneficially interested in the subject matter and result in a suit so that a complete decree may be made between them. (Georgeoff v. Spencer (1948), 400 Ill. 300, 302, 79 N.E.2d 596, 597.) It has been said that a “necessary party” is an individual or entity having a present, substantial interest in the matter being litigated, and in whose absence a complete resolution of a matter in controversy cannot be achieved without affecting that interest. (Village of Schaumburg v. Metropolitan Sanitary District (1989), 186 Ill. App. 3d 69, 542 N.E.2d 119.) Objection to the omission of a necessary party may be made for the first time on appeal. (National Bank v. S.N.H., Inc. (1975), 32 Ill. App. 3d 110, 121, 336 N.E.2d 115, 124.) Joinder of necessary parties is required by section 2—406(a) of the Code (Ill. Rev. Stat. 1989, ch. 110, par. 2—406(a)) except where those who have not been joined share the same interest as some party appearing before the court and the party appearing before the court is able to protect the interests of those absent. Borrowman v. Howland (1983), 119 Ill. App. 3d 493, 500, 457 N.E.2d 103, 107.

The Estate was not a necessary party in the proceedings below. The essence of this action is the cutting of timber by defendant on plaintiff’s property. While at the time the timber deed was executed, plaintiff's brother, Wayne, was a coowner of the property, plaintiff inherited Wayne’s interest and is now the sole owner of the property on which the timber stands. As to the six-thirtieths interest held in joint tenancy, the estate of Wayne Cameron has no interest. As to the nine-thirtieths interest held as tenants in common, there is an identity of interest between plaintiff and the Estate since plaintiff is the sole beneficiary under her brother’s will. Thus, any findings or decree against defendant regarding the validity of the timber deed and defendant’s subsequent actions and reliance on the deed will inure to the benefit of the plaintiff. There was no error in not joining the Estate as a party.

Defendant next argues the order for preliminary injunction must be reversed because it fails to comply with section 11 — 101 of the Code. Specifically, defendant contends the order does not set forth the reasons for its issuance and provides broader relief than was requested by plaintiff in her petition. Plaintiff maintains defendant waived this issue by not objecting to the form and substance of the order in the court below. Plaintiff also contends there is no merit to defendant’s argument as to the scope of the order since the injunctive relief granted is actually narrower than that requested.

The preliminary injunction order entered is as follows:

“This matter comes before the Court on Plaintiff’s Motion for Preliminary Injunction. The Court having heard evidence, and the parties appearing with counsel *** for Defendant and through counsel *** for Plaintiff, IT IS ORDERED THAT
(1) Defendant is enjoined and prohibited from taking any further action in regards to the removal of timber and is prohibited from entering upon any property in which Wayne Cameron had an interest during his lifetime located in Sections 16 and 21 in North part of Bainbridge Twp., Schuyler County, Illinois[,] and more fully described in the Court’s Order of November 1, 1990 ***.”

Section 11 — 101 of the Code provides in pertinent part:

“Every order granting an injunction and every restraining order shall set forth the reasons for its entry, shall be specific in terms; shall describe in reasonable detail, and not by reference to the complaint or other document, the act or acts sought to be restrained ***.” (Ill. Rev. Stat. 1989, ch. 110, par. 11—101.)

It has been held that the provisions in section 11—101 regarding specificity of acts enjoined are not mere technicalities which the courts may waive where the circumstances may indicate the equity of some other result. (Streif v. Bovinette (1980), 88 Ill. App. 3d 1079, 1084, 411 N.E.2d 341, 346.) Regarding the requirement that an injunction order set forth the reasons for its issuance, two courts have held the issue was waived in the reviewing court where no objection to the form of the order was raised in the trial court. (Kobrand Corp. v. Foremost Sales Promotions, Inc. (1972), 8 Ill. App. 3d 418, 421-22, 291 N.E.2d 61, 64; Somerset Importers, Ltd. v. Gold Standard Liquors, Inc. (1974), 18 Ill. App. 3d 39, 42, 309 N.E.2d 286, 289.) The Somerset court also noted the record there showed the defendants specifically indicated in the trial court they had no objection to the entry of the order. Another court held the failure to include the reasons for the issuance of the injunction in the order was reversible error. (Hoda v. Hoda (1970), 122 Ill. App. 2d 283, 289, 258 N.E.2d 386, 389.) Still, two other courts have held that failure to specify in the order the reasons for issuing an injunction was not fatal where the issues in the case were clear enough to apprise the opponent of the trial court’s reasoning. In re Marriage of Grauer (1985), 133 Ill. App. 3d 1019, 479 N.E.2d 982; Brooks v. La Salle National Bank (1973), 11 Ill. App. 3d 791, 298 N.E.2d 262.

In the present case, plaintiff alleges defendant did not object in the trial court to the entry of the order. The order entered November 13, 1990, shows defendant’s attorney approved the form of the order. The issues in this case were made clear at the hearing on November 13, 1990. We find the failure to include the reasons in the order does not constitute reversible error. Grauer, 133 Ill. App. 3d 1019, 479 N.E.2d 982; Brooks, 11 Ill. App. 3d 791, 298 N.E.2d 262.

As to defendant’s claim that the order is broader than the relief sought, we find no merit to this issue. The scope of a temporary injunction will depend on the nature of the case, the evidence presented in the hearing, and the relief sought. (Eads Coal Co. v. United Mine Workers, District No. 12 (1971), 131 Ill. App. 2d 1082, 269 N.E.2d 359.) In her petition, plaintiff asked that defendant be enjoined “from taking any further action in regards to the property.” (Emphasis added.) In the order, the defendant was enjoined “from taking any further action in regards to the removal of timber and is prohibited from entering upon any property in which Wayne Cameron had an interest during his lifetime located in *** Schuyler County, Illinois.” (Emphasis added.) It is clear the order prohibits two activities, while the request was for the prohibition of any activity regarding the plaintiff’s property.

Finally, defendant argues plaintiff’s pleadings were insufficient to support a claim for injunctive relief. Specifically, defendant argues plaintiff’s allegations that Wayne was under duress or a mistake of fact when the deed was signed are not facts but conclusions which do not meet the Illinois requirement for fact pleading. Further, defendant contends plaintiff’s petition alleges facts based on information and belief, which cannot support a preliminary injunction. Moreover, plaintiff failed to specifically allege irreparable damage if defendant is allowed to continue to take timber from her property.

Plaintiff maintains defendant has waived any issue on the sufficiency of the pleadings (1) by failing to raise any issues in the proceedings below, and (2) in his actions in asking the court below to extend the TRO in lieu of granting a preliminary injunction, so the parties could have more time to look into the matters raised.

We find defendant waived this issue. Section 2—612(c) of the Code provides: “All defects in pleadings, either in form or substance, not objected to in the trial court are waived.” (Ill. Rev. Stat. 1989, ch. 110, par. 2—612(c).) Objections to pleadings may be waived by failure to urge the objection at the proper time and in the proper manner or by any act which, in legal contemplation, implies an intention to overlook it. (Chimerofsky v. School District No. 63 (1970), 121 Ill. App. 2d 371, 257 N.E.2d 480.) No pleading is bad in substance if it reasonably informs the opposing party of the nature of the claim and any defects, in form or substance, are waived if not made in the trial court. (Kravis v. Smith Marine Inc. (1975), 60 Ill. 2d 141, 324 N.E.2d 417; Christensen v. Wick Building Systems, Inc. (1978), 64 Ill. App. 3d 908, 911, 381 N.E.2d 1189, 1191.) Only where a complaint, with all the intendments in its favor, wholly and absolutely fails to state a cause of action at all can an objection be made to it for the first time on appeal. Pathman Construction Co. v. Hi-Way Electric Co. (1978), 65 Ill. App. 3d 480, 382 N.E.2d 453.

Defendant does not allege plaintiff’s petition wholly failed to state a cause of action for preliminary injunctive relief but merely points to defects in pleading. Defendant’s failure to object below and his actions at the hearing constitute waiver of this issue.

For the foregoing reasons, the order for preliminary injunctive relief is affirmed.

Affirmed.

GREEN and STEIGMANN, JJ., concur.