author: JUSTICE GREEN

text:
      In re ESTATE OF JOHN A. CUNNINGHAM, a Disabled Person (John A. Cunningham, a Disabled Person, Plaintiff-Appellee and Cross-Appellant, v. Reba F. Watson et al., Defendants-Appellants and Cross-Appellees).
    Fourth District
    No. 4 — 90—0203
    Opinion filed December 28, 1990.

      Eric S. Pistorius, of Jerseyville, for appellants.
    Lee W. Barron, of Jerseyville, for appellee.
   JUSTICE GREEN

delivered the opinion of the court:

Plaintiff, John A. Cunningham, a disabled adult acting through his guardian and daughter, Clara R. Heflin, sued defendants, Reba E Watson (Reba) (plaintiff’s sister) and Reba’s son, Charles Watson, Jr. (Charles), seeking a court order requiring Reba to reconvey to plaintiff a 77-acre Jersey County farm which plaintiff deeded to Reba on February 11, 1986. Charles Watson was made a defendant because he may have received income from the farm during the time that Reba possessed it. The suit also sought an accounting from Reba and Charles as to all income received from the farm since plaintiff deeded it to Reba. The circuit court ordered reconveyance of the farm on the bases that (1) plaintiff suffered from a “ ‘real mental weakness’ ” when he conveyed the property to Reba and (2) defendants did not overcome the resulting presumption that the transaction was not valid. Defendants appeal this order. Plaintiff cross-appeals portions of the same order which require plaintiff to repay $35,000 which Reba paid to plaintiff for conveyance of the farm, require payment to Reba of the interest which she would have earned on that amount during the intervening period, and which deny plaintiff compensation for waste of the farm which allegedly occurred during the time Reba possessed it.

Defendants contend the circuit court order requiring reconveyance of the farm should be reversed because plaintiff did not meet his burden of establishing his mental incapacity at the time of the conveyance. Defendants assert that the circuit court applied the wrong standard in determining whether plaintiff had sufficient mental capacity to deed the farm to Reba and, even if the circuit court utilized the correct standard, the evidence is nevertheless insufficient under that standard to establish lack of mental capacity on the part of plaintiff at the time of the conveyance.

Plaintiff contends that regardless of what standard is used to judge his actions, he lacked sufficient mental capacity to convey the farm to Reba. He points out that the farm was the only property of significant value which he possessed, and that he rejected his attorney’s advice to retain a life estate in it. Plaintiff also observes that several persons who had known him for many years testified that at the relevant times, he lacked the ability to attend to his normal business affairs or to protect his interests. Plaintiff maintains that this is a “fact sensitive” case, in which the decision of the trial court judge, who had an opportunity to observe the demeanor and evaluate the credibility of the witnesses, should be affirmed.

We reverse the circuit court’s decision and remand this cause for further proceedings on the basis that the circuit court applied the wrong standard in determining whether plaintiff had sufficient mental capacity to convey the farm to Reba.

The events which culminated in this litigation were precipitated by a December 1984 circuit court order dissolving the marriage of plaintiff and his wife, Doris, who had been married since 1937. As a part of the marital property distribution, the circuit court ordered that the 77-acre farm be sold, so that plaintiff’s former wife could be paid for her interest in it. Plaintiff desperately wanted to keep the farm and contacted attorney Lee Plummer to see what could be done to retain possession of it.

The evidence as to the mental capacity of plaintiff during the time period between the dissolution of his marriage and his conveyance of the farm to Reba is in dispute. Plaintiff presented the testimony of seven witnesses, most of whom had known him for at least several years. Most of these witnesses opined that around the time of the February 11, 1986, conveyance of the farm to Reba, plaintiff was incapable of conducting business or protecting his interests. All of these witnesses also described specific instances of eccentric conduct on the part of plaintiff.

Plaintiff’s daughter (and guardian), Clara Heflin, who was born in 1938, stated that until the summer of 1984, she and plaintiff had a good relationship. Heflin stated that during that summer, plaintiff “started talking suicidal, *** was saying all sorts of things about suicide” and “was crying all the time.”

Raymond H. Myers, who had known plaintiff and been his neighbor for 48 years, stated that in 1982, plaintiff was unable to properly repair a hay baler, although he had been able to do that kind of work before, and that in 1984, plaintiff stated that he got lost while driving from Jerseyville back to his farm. Another neighbor, Douglas Hunt, testified that he had known plaintiff, and plaintiff had been a family friend for most of Hunt’s life. Hunt stated that in 1985, plaintiff planted one of his fields with a planting machine on which one of four planters was not working, thus resulting in 25% of the field not being planted. According to Hunt, plaintiff could not be made to understand why that occurred.

Also testifying on plaintiff’s behalf were Iris and Robert Gerber. Robert had been a friend of plaintiff for 25 to 30 years, and Iris became acquainted with plaintiff shortly after her marriage to Robert. She had known plaintiff for about eight or nine years prior to the July 1989 evidentiary hearing in this cause. Both Iris and Robert Gerber testified concerning an incident in February 1986, in which plaintiff went to the Gerbers’ home when only Iris and a child were at home, rattled a doorknob, attempted to open a door to the house, and called for Robert Gerber’s ex-wife (whose first name is Betty). Also, Robert Gerber testified that in 1986, plaintiff made statements which suggested that he (Robert) may have stolen some property which plaintiff stored on the Gerbers’ premises. Robert Gerber further stated that during the same time period, plaintiff went to the Gerbers’ home with a box full of old coins, which Robert considered to be collector’s items, and despite Robert’s advice to the contrary, said he was going to take them to the bank and “cash them in.”

Also, four witnesses, including Robert Gerber, stated that during the relevant time period, plaintiff said that Clara Heflin was not his daughter. One of these witnesses, Isabelle Myers, who had been a neighbor of plaintiff and had known him for 50 years, stated that after telling her Heflin was not his daughter, plaintiff said that he wanted Heflin to take a blood test, but that she did not do that.

Testifying on behalf of defendants, attorney Lee Plummer stated that prior to a judicial sale of the farm which plaintiff formerly owned (in the course of plaintiff’s dissolution of marriage proceeding), he and plaintiff discussed the possibility of plaintiff buying out his former wife’s interest in it. However, plaintiff apparently did not have sufficient funds to do this. On December 14, 1985, the farm, which had been appraised at $99,500 in December 1984, was sold at a judicial auction. The high bidder at this auction was Raymond H. Myers, who bid $66,000. After the sale, Plummer received word from plaintiff that he had reached an agreement with his sister, defendant Reba Watson, under which she would provide the necessary monies to enable plaintiff to purchase the farm. Plummer, acting on plaintiff’s request, then contacted Myers to see if he wanted to sell the farm. . Myers was unwilling to do so. Therefore, Plummer requested that the circuit court not approve the sale of the farm. At a hearing on this request, the circuit court accepted a bid by plaintiff in the amount of $70,000, with the provision that Myers could make additional bids. Myers failed to do so, and the farm was sold to plaintiff.

Plummer testified that under the arrangement to which plaintiff and Reba agreed, Reba was to pay plaintiff the $35,000 needed to buy out his ex-wife’s interest in the farm. In exchange for this, plaintiff wanted the farm to eventually go to Reba. Plummer stated that he understood that plaintiff and Reba agreed plaintiff could remain on the property and continue to farm it for as long as he wished. Plummer testified that although he suggested plaintiff retain a life estate in the farm, plaintiff did not follow this advice.

According to Plummer, the transaction between plaintiff and Reba involving the 77-acre farm took place on February 11, 1986. Plaintiff exchanged a quitclaim deed to the farm (which stated that the transaction was tax exempt and thus did not bear any tax stamps) for a $35,000 cashier’s check. The check was payable to Plummer’s escrow account.

Plummer further testified that he talked with plaintiff regarding the preparation of a will after the transaction involving the farm. Plummer stated that although plaintiff was hard of hearing, he believed plaintiff understood the information Plummer conveyed to him and that he (Plummer) was able to understand the information which plaintiff provided to him. Based on his numerous conversations with plaintiff and opportunities to observe him, Plummer felt that plaintiff had sufficient mind and memory to comprehend the nature of his acts when he conveyed his farm to Reba, and that he was capable of exercising his own free will at that time. Plummer stated that, in his relationship with plaintiff, it was not a matter of his telling a client what to do and the client doing it. Rather, plaintiff was absolutely certain as to what he wanted, which was to do whatever was necessary to keep his farm.

Also testifying on defendants’ behalf was defendant Charles Watson, Jr., who is the son of defendant Reba Watson and plaintiff’s nephew. Charles testified that he saw and conversed with plaintiff several times during the year preceding plaintiff’s conveyance of the farm to Reba. Charles stated that during these conversations, he never had any difficulty understanding what plaintiff attempted to convey to him, and (apparently at the time plaintiff deeded the farm to Reba) plaintiff was able to transact business and take care of his own interests.

. Charles provided the following description of the terms of the agreement pursuant to which plaintiff conveyed the farm to Reba:

“A. [Charles:] [Reba] was going to provide 35,000 so [plaintiff] could buy out his wife’s part and then he would deed the property to her. [Plaintiff] could live there as long as he wanted to live there.
A. *** I mean, it would be his own farm. Everything would remain the same except the deed was in her [Reba’s] name.”

Charles indicated that he understood that after plaintiff ceased living on the farm, he and Reba would be entitled to the income from it. He stated that after plaintiff left the farm (plaintiff resided in a nursing home at the time of the trial of this cause), plaintiff did not receive any income from it.

The circuit court found that when plaintiff conveyed the farm to Reba, he suffered from a “ ‘real mental weakness.’ ” The circuit court held this fact rendered operative a presumption that the transaction was not valid and shifted to defendants the burden of proving the “perfect fairness” of the transaction and plaintiff’s adequate mental capacity when he conveyed the farm to Reba. The court concluded:

“While the defendants presented some evidence as to [plaintiff’s] mental capacity and ability to protect his own interest on or about the date in question, the court finds that it was insufficient to overcome the contrary evidence and presumption that he lacked such capacity and ability.”

The circuit court’s holding apparently is premised on the following statement in the early case of Hinkley v. Wynkoop (1922), 305 Ill. 115, 122, 137 N.E. 154, 158:

“A presumption arises against the validity of the transaction in a case where real mental weakness of one of the parties is shown, and the burden of proof in such case rests upon the party claiming the benefit of the conveyance or of the contract to show its perfect fairness and the capacity of the other party.” (Emphasis added.)

Later decisions of the supreme court establish that Hinkley is no longer an accurate statement of the principles applicable to determining whether a grantor had sufficient mental capacity to execute a deed. First of all, it is generally presumed that the grantor of a deed was of sound mind, and the party seeking to have the deed set aside has the burden of establishing otherwise. A person capable of transacting ordinary business also has sufficient mental capacity to execute a deed. (Greathouse v. Vosburgh (1960), 19 Ill. 2d 555, 169 N.E.2d 97.) Decisions subsequent to Hinkley generally hold that an individual who (1) is capable of understanding the nature and effect of his acts, and of comprehending his own interests, and (2) is exercising his own will is capable of executing a valid deed. E.g., Moneta v. Hoinacki (1946), 394 Ill. 47, 67 N.E.2d 204; Redmon v. Borah (1943), 382 Ill. 610, 48 N.E.2d 355.

Some decisions prior to Greathouse, but subsequent to Hinkley, suggest that one who is incapable of transacting ordinary business nevertheless may be capable of executing a valid deed. In Sehnoor v. Terlep (1948), 399 Ill. 101, 77 N.E.2d 140, for instance, the court suggested that even though one may not be mentally capable of entering into a contractual obligation with an adversary, he nevertheless may be capable of disposing of his property by deed or will, if he can comprehend the nature and effect of his acts. Contrary to the Sehnoor decision, however, the Moneta court stated that in order to sustain a deed, it must be established that when the grantor executed the deed, he had the “mental ability to cope with an antagonist and to understand and protect his own interests.” Moneta, 394 Ill. at 58, 67 N.E.2d at 210.

As long as the evidence is otherwise sufficient to establish that the grantor possessed mental capacity to execute a deed, eccentric actions on his part generally are not a sufficient basis for setting aside the deed. (Redmon, 382 Ill. 610, 48 N.E.2d 355.) Also, unreasonable caprice or prejudice in executing a deed is of no relevance to its validity, unless the deed’s execution is explainable on no grounds other than insane delusion or undue influence. McGlaughlin v. Pickerel (1943), 381 Ill. 574, 46 N.E.2d 368; Kimball v. Cuddy (1886), 117 Ill. 213, 7N.E. 589.

The evidence here presented a question of fact as to whether the conveyance from plaintiff to Reba should be set aside. The evidence supported the decision of the circuit court in that respect, but Reba was entitled to have the trier of fact apply the proper rules of law. As we have indicated, the circuit court’s reliance upon the Hinkley decision was incorrect and requires granting defendants a new hearing. On remand, the predominant factors which the court should consider in determining whether plaintiff had sufficient mental capacity to deed the farm to Reba are whether he understood the nature and effect of his action in executing the deed, whether he was able to comprehend his own interests at that time, and whether he exercised his own free will in executing the deed. Since the transaction between plaintiff and Reba Watson was not a wholly gratuitous conveyance and had at least some characteristics of a business transaction, the circuit court should also consider whether plaintiff was capable of transacting ordinary business and protecting his own interests while dealing with an antagonistic party when he executed the deed.

The validity of the deed by which plaintiff conveyed the farm to Reba Watson is to be reconsidered under standards different from those which the circuit court utilized and somewhat different from those which counsel assumed were applicable in the prior circuit court proceedings in this cause. Therefore, on remand, the circuit court should afford the parties an opportunity to present additional evidence if they so desire. See Lamb v. Lamb (1984), 124 Ill. App. 3d 687, 464 N.E.2d 873.

Because we reverse the circuit court’s order, we need not consider defendants’ alternative contention that the circuit court abused its discretion in allowing plaintiff to reopen his case in chief. Nor need we now consider plaintiff’s contentions on cross-appeal that (1) the circuit court erred in ordering plaintiff to repay to Reba the $35,000 which she paid for the farm, plus interest, and (2) plaintiff is entitled to compensation for waste which occurred during the time that Reba possessed the farm.

The circuit court order which requires defendant Reba Watson to reconvey to plaintiff the 77-acre farm which he formerly owned is reversed, and this cause is remanded to the circuit court for further proceedings consistent with this opinion.

Reversed and remanded.

LUND, P.J., and SPITZ, J., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE LUND

license: Public Domain

text:
    THE PEOPLE ex rel. GARY J. SKOIEN, Executive Director, Capital Development Board, State of Illinois, Plaintiff-Appellant, v. UTILITY MECHANICAL CONTRACTORS, INC., et al., Defendants-Appellees.
    Fourth District
    No. 4 — 90—0426
    Opinion filed December 20, 1990.

      Neil F. Hartigan, Attorney General, and Feldman & Wasser, both of Springfield (Howard W. Feldman and Carl R. Draper, Special Assistant Attorneys General, of counsel), for appellant.
    William T. Cahill, Bruce R. Meckler, and Michael J. Lyle, all of Phelan, Pope & John, Ltd., of Chicago, for appellee Utility Mechanical Contractors, Inc.
    Douglas M. Reimer and Richard L. Sandler, both of McDermott, Will & Emery, of Chicago, for appellee United States Fidelity & Guaranty Co.
   PRESIDING JUSTICE LUND

delivered the opinion of the court:

Plaintiff Capital Development Board filed a complaint in the circuit court of Champaign County against defendants Utility Mechanical Contractors (Utility) and United States Fidelity & Guaranty Co. (USF&G). On May 25, 1990, the court granted defendants’ motion to transfer venue, which was based on forum non conveniens principles, and ordered the case transferred to the circuit court of Cook County. Plaintiff now appeals.

The genesis of this dispute is June 30, 1985. On that date, plaintiff awarded a construction contract to Utility to work on the Abbott Power Plant coal conversion project at the University of Illinois. USF&G was surety for Utility on this contract. Subsequently, plaintiff determined that Utility breached the contract in various ways and, on July 1, 1986, the contract with Utility was terminated. Plaintiff then contacted USF&G to complete the work, and USF&G declined.

In August 1986, Utility filed an action in Cook County, seeking an injunction against plaintiff’s director and alleging Utility was wrongfully terminated. On August 11, 1986, the venue of this action was ordered transferred to Champaign County. Subsequently, this action was dismissed on the grounds that the Illinois Court of Claims had exclusive jurisdiction. On November 5, 1986, Utility filed an action against plaintiff in the Court of Claims which is still pending. Plaintiff ultimately retained another contractor to complete the project.

On March 9, 1990, plaintiff filed the present complaint in the circuit court of Champaign County. This complaint alleged a breach of the construction contract on the part of Utility and the breach of the surety contract on the part of USF&G.

On April 19, 1990, defendants filed a motion to change venue based on forum non conveniens principles, seeking to have the case transferred to Cook County To this motion, defendants attached affidavits of the president and the general counsel of Utility. In these affidavits, it is alleged that at the time of filing an answer, defendants will name the architecture-engineering firm, CT&A, as third-party defendant, that their counsel is from Chicago, and that to litigate in Champaign County will require retention of local counsel and increase their costs. The affidavits further alleged that virtually all the discovery and witnesses necessary for trial are located in Cook County or the Chicago metropolitan area. Specifically, they alleged: (1) all documents of plaintiff, as well as three witnesses from plaintiff, are located either in Chicago or Springfield; (2) plaintiff’s former counsel is in Chicago; (3) CT&A’s offices and all its documents are in Chicago, as are four employees who would be witnesses; (4) USF&G’s offices • are in the Chicago metropolitan area, as is one employee who would be a witness; (5) the offices of the completing contractor, as well as the documents and two of its employees who would be witnesses, are in Chicago; and (6) two of Utility’s subcontractors have their related documents, as well as employee witnesses, in their Chicago offices. It was further alleged that the Court of Claims case involving the same controversy was pending in Chicago. Finally, it was alleged in the affidavits that no witnesses the defendants expected to call resided in Champaign County.

Plaintiff objected to the motion and attached the affidavits of its general legal counsel and its trial counsel. In these affidavits, it is alleged that (1) one of plaintiff’s employees listed as a witness by defendants actually lives in Sangamon County, while another has retired and lives part time in Florida and part time in Sangamon County; (2) an employee who had responsibility for supervising work on the project by plaintiff’s employees lives in Sangamon County; (3) one of CT&A’s employees listed by defendant now lives in Pennsylvania; (4) an employee of the completing contractor whom defendants listed now lives in Florida; (5) the original records are in plaintiff’s Springfield office and other documents, including shop drawing submittals of Utility and other working papers, are at the Abbott Power Plant in Champaign; (6) virtually none of the documents relating to the project are in Cook County other than copies; (7) an employee of English Brothers Construction, as well as employees of R.H. Bishop, both located in Champaign County, have knowledge of the facts concerning the progress of the construction; (8) one particular employee, who resides in Champaign, and other employees of the University of Illinois have knowledge of the delays caused by Utility and the effect those had on the university; and (9) employees of Monitrol, located in Farmington Hills, Michigan, a supplier of control equipment integral to the dispute, also have knowledge of the progress of the construction.

On May 25, 1990, the court entered a docket order which provided:

“Motion of defendants to transfer venue; considering memoranda with affidavits filed in support and opposition and the factors held relevant by Bland v. Norfolk & Western Railway Company (1987), 116 Ill. 2d 217, the motion is granted.”

Plaintiff now appeals this decision.

Forum non conveniens is a doctrine founded in considerations of fundamental fairness and sensible and effective administration. (Adkins v. Chicago, Rock Island & Pacific R.R. Co. (1973), 54 Ill. 2d 511, 514, 301 N.E.2d 729, 730.) In application of these basic considerations, a court may decline jurisdiction of a case whenever it appears there is a forum that can better serve the convenience of the parties and the ends of justice. (Adkins, 54 Ill. 2d at 514, 301 N.E.2d at 730.) This analysis applies to intrastate transfers as well as to interstate transfers. See Torres v. Walsh (1983), 98 Ill. 2d 338, 350-51, 456 N.E.2d 601, 606-07.

In resolving forum non conveniens questions, a court must balance private interest factors affecting the convenience of the litigants and public interest factors affecting the administration of the courts. (Bland v. Norfolk & Western Ry. Co. (1987), 116 Ill. 2d 217, 223-24, 506 N.E.2d 1291, 1294.) Private interest factors to be considered are the convenience of the parties, the relative ease of access to sources of proof, the accessibility of witnesses, the possibility of a view of the premises or the site, and all other practical problems that make the trial of a case easy, expeditious, and inexpensive. (Griffith v. Mitsubishi Aircraft International, Inc. (1990), 136 Ill. 2d 101, 105-06, 554 N.E.2d 209, 211; Bland, 116 Ill. 2d at 224, 506 N.E.2d at 1294.) Relevant public factors include the administrative difficulties caused when litigation is handled in congested venues, the unfairness of imposing jury duty upon residents of a county with no connection to the litigation, and an interest in having localized controversies decided locally. Griffith, 136 Ill. 2d at 106, 554 N.E.2d at 211; McClain v. Illinois Central Gulf R.R. Co. (1988), 121 Ill. 2d 278, 289, 520 N.E.2d 368, 372.

Another important consideration under the forum non conveniens doctrine is the deference given to plaintiff’s choice of forum. (Griffith, 136 Ill. 2d at 106, 554 N.E.2d at 211.) If the chosen forum is the plaintiff’s home forum, that choice will be given substantial deference; otherwise, the deference to plaintiff’s choice is considerably lessened. (McClain, 121 Ill. 2d at 289, 520 N.E.2d at 372-73.) The current balancing test is an uneven one which requires that in order to justify a change of venue, the relevant factors, viewed in their totality, must strongly favor transfer to the forum suggested by defendant. (Griffith, 136 Ill. 2d at 107, 554 N.E.2d at 212.) The trial court is vested with broad discretion in making this determination, and its decision will be reversed only if it is shown that the court abused its discretion in weighing the relevant factors. Meyers v. Bridgeport Machines Division of Textron, Inc. (1986), 113 Ill. 2d 112, 117-18, 497 N.E.2d 745, 747.

Initially, defendants maintain that this court must give great deference to the trial court’s determination. It is correct that it is not our role to substitute our judgment for that of the trial court or to decide whether we would have weighed the factors differently. (Griffith, 136 Ill. 2d at 115, 554 N.E.2d at 215.) Unfortunately, in the instant case, the court did not indicate specifically how it weighed the factors and which ones it found controlling. Therefore, it is necessary for us to review the factors ourselves. In doing so, we conclude that the balance of the factors does not strongly favor defendants and that the court’s decision is therefore erroneous.

In analyzing the public factors, we first note that all the parties agree that the Cook County courts are more congested. In fact, the records indicate that cases in Champaign County are resolved, on the average, eight months sooner than those in Cook County, and that the backlog in Champaign County is also significantly less than in Cook County.

We also view this case as one of local interest to Champaign County. Defendants insist otherwise. They acknowledge that the dispute arose out of the construction contract involving the Abbott Power Plant. However, they observe the project is now completed and, therefore, the interest to the residents of Champaign County is lessened. They argue that the dispute is really a contract dispute between themselves, located in Cook County, and plaintiff, located in Cook and Sangamon Counties. Therefore, they believe since the parties affected by the contract have their connections with Cook County, it is Cook County which has the local interest in the case.

However, defendants are misfocusing on the fact the power plant construction project is now complete. To carry this argument to its logical conclusion, defendants would have us hold that once the underlying conduct of a suit is completed, the forums in which the parties reside or have other contacts would have more of an interest in the outcome of the dispute than the forum in which the underlying conduct occurred. This makes little sense, and no court has been found to so hold. In fact, in Griffith, the supreme court found the forum in which an airplane took off had as much of a local interest in a suit as the forum in which the plane crashed.

In the present case, it is clear the dispute arose over construction of the Abbott Power Plant and is centered on whether defendant was complying with the contractual requirements during the construction. This facility is a major source of energy to the University of Illinois and the community. Whether the project was being constructed along the lines of the contract would be of significant local interest. The fact that construction has been subsequently completed by a third party has no impact on that conclusion.

In view of the above conclusion, we similarly find there is no unfair burden in imposing the responsibilities and costs of jury duty on the Champaign County residents.

In turning to the relevant private interest factors, we first address the relative ease of the parties’ access to the sources of proof. Defendants point primarily to the location of various documents and witnesses. They maintain all the documents are located in Cook County. They also observe all the witnesses they refer to, which need to be deposed, are in Cook County. However, plaintiff has asserted in its affidavits that necessary witnesses are also located in Champaign and Sangamon Counties, as well as out of State. Plaintiff further argues that many of the necessary documents are located at the Abbott Power Plant in Champaign, as well as its office in Springfield.

The production of documents being a relatively simple, inexpensive task would not place an undue burden on either party. Further, many of the necessary documents may already be kept in Champaign County.. Similarly, the fact that many of defendants’ witnesses who need to be deposed are located in Cook County does not seem significant. Plaintiff has established other witnesses needing to be deposed are located elsewhere. The taking of a deposition is generally a routine task. Here, the counsel of all the parties are from Chicago. Thus, the taking of depositions in Cook County would be a relatively simple task for all involved. We further observe that regardless of the forum of the trial, these depositions would most likely be taken. Accordingly, it is difficult to see how the location of the trial would have a very significant impact on the access of the parties to this proof. Regardless, we conclude that no undue burden is placed on the parties in getting to the proof by having the trial located in Champaign County.

The only factors which could possibly be construed to favor defendants are the availability of witnesses and the convenience of the parties. Defendants argue that all their witnesses are located in Cook County. Therefore, they maintain that to ease the burden on these witnesses, a forum in Cook County would be more appropriate. However, plaintiff established that some of the witnesses defendants rely on actually are located in Springfield and out of State, and plaintiffs have presented other witnesses located in Champaign County and out of State. Thus, since Springfield is closer to Champaign than Chicago, it would seem that moving the trial to Cook County would inconvenience these witnesses. It appears, then, that this factor, favoring neither party, is properly considered as neutral.

Defendants also argue that their offices and attorneys are located in or near Cook County. They maintain that to defend in Champaign County would increase their costs and make the trial more inconvenient. They also point out that plaintiff’s counsel is in Chicago, as is one of plaintiff’s offices. They further observe that the Court of Claims case involving the same parties and based on the same controversy is located in Chicago. Therefore, they maintain it would be more efficient and economical to move this case to Cook County. However, it is unclear why this would be so efficient, since there is no indication that these cases would be consolidated and there is no other specific indication of how this savings would be made. We also observe the residence of counsel is not relevant to a forum non conveniens determination. DeVries v. Bankers Life Co. (1984), 128 Ill. App. 3d 647, 653, 471 N.E.2d 230, 235.

Thus, in balancing these factors, we find the convenience of the parties marginally on the side of the defendants. On plaintiff’s side we find the local interest in the controversy, the relatively uncongested state of the Champaign County courts, and the deference due plaintiff’s choice. All other factors appear neutral. As our supreme court has repeatedly stated, “[UJnless the balance strongly favors the defendant, then the plaintiff should be able to exercise his statutory right to choose his forum.” (Torres, 98 Ill. 2d at 351, 456 N.E.2d at 607.) Here, that balance does not so favor defendants. Accordingly, we find the court’s determination to be an abuse of discretion.

Reversed.

SPITZ and KNECHT, JJ., concur.


text:
    RICHARD L. HANNAH, Plaintiff, v. WILBUR GILBERT, Defendant-Appellee (Gilbert Brothers, Inc., Plaintiff-Appellant).
    Fourth District
    No. 4 — 90—0350
    Opinion filed December 28, 1990.

      Lawrence E. Johnson, of Lawrence E. Johnson & Associates, P.C., of Champaign, for appellant.
    L. Keith Hays, of Monticello, for appellee.
   PRESIDING JUSTICE LUND

delivered the opinion of the court:

Plaintiff Gilbert Brothers, Inc., appeals from the order of the circuit court of Piatt County entering a judgment n.o.v. in favor of defendant Wilbur “Nick” Gilbert and against the plaintiffs Richard L. Hannah and Gilbert Brothers, Inc. Plaintiff Hannah has not appealed. We reverse.

The facts of this case are undisputed. On April 6, 1981, Richard L. Hannah filed a cause of action against Wilbur “Nick” Gilbert and Steven Gilbert. The complaint alleged that Nick had breached a non-competition clause in a contract for the sale of Gilbert Brothers, Inc. (a trucking business), and that Steven had tortiously induced the breach. The cause proceeded to a jury trial.

On March 8, 1982, Hannah filed a petition for guardianship, alleging that Nick was incompetent due to Alzheimer’s disease. The court allowed the petition and appointed Helen Gilbert, Nick’s wife, guardian of the person and estate of Nick.

The jury returned a verdict awarding Hannah $150,000, allocating $75,000 each against Nick and Steven. Steven Gilbert appealed and, on January 21, 1985, this court reversed, holding that Gilbert Brothers, Inc., rather than Richard L. Hannah, was the proper party to bring the cause of action. Hannah v. Gilbert (1985), 129 Ill. App. 3d 1161 (unpublished order under Supreme Court Rule 23).

The complaint was refiled, naming Gilbert Brothers, Inc., and Richard L. Hannah as plaintiffs and Wilbur “Nick” Gilbert and Steven Gilbert as defendants. The cause again proceeded to a jury trial. On March 30, 1987, a final report in the guardianship estate was approved and the guardian was discharged. Nick died approximately eight months later, on November 26,1986.

On May 11, 1987, one of the attorneys for Nick filed a “Suggestion of Death of Party,” informing the trial court and Gilbert Brothers and Hannah that Nick died intestate on November 26, 1986, that Nick left no estate which passed by probate, that all real estate and bank deposits passed to his surviving joint tenant by operation of law, and that no probate of Nick’s estate was contemplated by his heirs.

Plaintiffs filed a motion to appoint a special administrator pursuant to section 2 — 1008(b) of the Civil Practice Law (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1008(b)) on March 23, 1988. A hearing was held and, over the objection of Helen Gilbert, she was appointed special administrator in an order signed on June 21, 1988. We dismissed Helen’s appeal contesting the appointment. Gilbert Brothers, Ine. v. Gilbert (4th Dist. Nov. 15, 1988), No. 4 — 88—0544, (order of dismissal).

On February 2, 1990, the jury returned a verdict in favor of Steven and against plaintiffs and in favor of plaintiffs against Nick, awarding plaintiffs $107,300 in damages. Judgment was entered on the verdicts.

The special administrator filed a post-trial motion requesting that the trial court enter a judgment n.o.v. in favor of Nick or, alternatively, order a new trial. The motion alleged, in relevant part, that “no Letters of Administration have issued from this or any other court and as a matter of law judgment herein is absolutely barred by the provisions of section 18 — 12(b) of the Probate [Act] in that more than three years have elapsed since the death of the defendant.” See Ill. Rev. Stat. 1987, ch. 111½, par. 18 — 12(b).

On April 27, 1990, the court granted the special administrator’s post-trial motion for judgment n.o.v. and vacated the judgment against Nick. In its memorandum order, the trial court reasoned that, “no letters of office were issued within 3 years after Nick’s death as required by section 18 — 12(b). ‘Simply put, no estate was opened upon which a claim could effectively have been made.’ McCue v. Colantoni [(1980), 80 Ill. App. 3d 731, 736, 400 N.E.2d 683, 687].” On appeal, plaintiff Gilbert Brothers, Inc., contends that the trial court erred in vacating the judgment against Nick. We agree.

Although this action was filed within Nick’s lifetime, he died during the pendency of the litigation. A special administrator was appointed to defend the action against Nick pursuant to section 2— 1008(b) of the Civil Practice Law. However, plaintiffs never petitioned the court to issue letters of administration upon Nick’s estate pursuant to section 9 — 4 of the Probate Act of 1975 (Probate Act) (Ill. Rev. Stat. 1987, ch. llOVa, par. 9 — 4). Consequently, an administrator was never appointed. The jury returned its verdict against Nick approximately three years and two months after his death.

Before addressing the issue raised on appeal in this case, we note that a special administrator appointed pursuant to the Civil Practice Law for the purpose of defending an action is not the equivalent of an administrator appointed pursuant to the Probate Act. The appointment of a special administrator does not trigger the issuance of letters of office or empower anyone to distribute the assets of the decedent’s estate in order to satisfy a judgment against the decedent. When a special administrator is appointed for the purpose of defending an action against the decedent, her statutory power is limited to defense of the action. Such an appointment within three years of the decedent’s death does not satisfy the letter or the spirit of section 18 — 12(b), which requires that letters of office must issue within the statutory time frame. Section 18 — 12(b) provides as follows:

“Unless sooner barred under subsection (a) of this Section, all claims barrable under this Section are, in any event, barred unless letters of office are issued upon the estate of the decedent within 3 years after decedent’s death.” Ill. Rev. Stat. 1987, ch. 111½, par. 18 — 12(b).

At issue in this case is whether the trial court erred in concluding that the time bar of section 18 — 12(b) renders the civil judgment returned against Nick more than three years after his death a nullity. The special administrator argues that the trial court correctly held that the claim represented by the lawsuit against Nick was barred upon the expiration of the three-year period. Plaintiff concedes that section 18 — 12(b) may affect its ability to collect a judgment against Nick, but contends that the statute.has no effect upon the validity of the judgment.

Although we have never ruled upon the effect of section 18 — 12 on the validity of a judgment, we have addressed the statute’s effect upon a plaintiff’s ability to pursue a civil cause of action against a decedent.

In Schloegl v. Nardi (1968), 92 Ill. App. 2d 302, 234 N.E.2d 558, the decedent, Perrine, was involved in an auto accident on July 13, 1963, with a vehicle driven by the plaintiff, Schloegl. The other plaintiffs were passengers in Schloegl’s automobile. On January 31, 1964, Perrine died testate of causes unrelated to the accident. Perrine’s estate was opened on February 5, 1964. A claim date was duly published on three separate dates in February 1964. The estate was inventoried, administered, and closed. The final report of the executors was filed on November 13, 1964. On July 9, 1965, the plaintiffs filed an action in tort against the decedent for injuries and damages suffered as a result of the accident of July 13, 1963. Schloegl also filed a petition in the probate division of the court, praying that the estate be reopened and the defendants be reinstated as executors. Service of summons was had on defendants.

The defendants subsequently filed a special appearance, moving to quash the service of summons and any order entered in connection •with the law and the probate proceedings. The trial court entered orders quashing service of summons against the defendants in both the negligence action and in the probate division. The order in the probate division also vacated the court’s prior order which had reopened the estate and reinstated the executors. The trial court reasoned that the plaintiffs’ claim for injuries was barred by a prior codification of section 18 — 12.

On appeal, this court reversed both orders, reasoning that the period of administration set forth in the Probate Act is not a period of limitation for filing an action for injuries against the decedent. (Schloegl, 92 Ill. App. 2d at 305, 234 N.E.2d at 561.) We explained that the Probate Act’s limitation on the payment of claims may affect the future collectibility of any judgment rendered against the decedent, but did not bar the plaintiffs’ action:

“The general statute of limitations is the sole governing statute which operates as an absolute bar to the filing of the action for the personal injuries. The administration of the decedent’s estate here bars the plaintiffs from collecting on any judgment that may be obtained from the property of the decedent which was inventoried and distributed. [Citations.] If the causes of action asserted in the counts of the complaint filed by the plaintiffs are ever reduced to judgment, any satisfaction of those judgments must be obtained from assets of the decedent not inventoried and properly administered. [Citation.] However, the prior administration of this estate is no bar to reopening the estate so closed to assert an action for damages otherwise properly brought within the ordinary statute of limitations applicable to the cause of action sought to be asserted.” Sehloegl, 92 Ill. App. 2d at 306, 234 N.E.2d at 561.

Other courts have recognized that section 18 — 12 of the Probate Act is incorporated by reference into section 13 — 209 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1989, ch. 110, par. 13 — 209) and may bar the pursuit of a civil cause of action against decedent. (Bricker v. Borah (1984), 127 Ill. App. 3d 722, 469 N.E.2d 241; McCue v. Colantoni (1980), 80 Ill. App. 3d 731, 400 N.E.2d 683.) Section 13 — 209 of the Code is the applicable statute of limitations for actions brought against the personal representative of a person who has died before the action was commenced.

In McCue, the First District Appellate Court interpreted a prior codification of section 13 — 209 of the Code and noted that section 18— 12 of the Probate Act was incorporated by reference into its provisions. McCue, the plaintiff, sustained injuries when he tripped and fell on a sidewalk. The property on which plaintiff fell had been owned in joint tenancy by Walter and Bernice Schultz until Walter’s death on March 14, 1968. Bernice thereafter owned the property as surviving tenant until her death on January 23, 1974. Oh March 17, 1975, plaintiff filed an action for negligence naming Walter and Bernice Schultz as defendants and seeking to recover for personal injuries sustained in the fall. A special and limited appearance and motion to quash service of summons on behalf of the defendants was heard and granted on July 15, 1975. At that time, death certificates for both Walter and Bernice were presented to the court and served upon plaintiff’s attorney. Plaintiff subsequently filed an amended complaint.

On February 8, 1977, plaintiff petitioned the court to open an estate for Bernice Schultz, and letters of administration were issued appointing defendant Anthony Colantoni administrator of her estate. On February 25, 1977, Colantoni was substituted for Bernice Schultz as a defendant and a second-amended complaint was filed naming only Colantoni, in his capacity as administrator, as defendant. Colantoni filed a motion to dismiss the action based on section 19 of the Limitations Act (Ill. Rev. Stat. 1973, ch. 83, par. 20) and section 204 of the Probate Act (a prior codification of section 18 — 12) (Ill. Rev. Stat. 1973, ch. 3, par. 204). The trial court granted defendant’s motion to dismiss and entered an order striking the plaintiff’s complaint and dismissing the lawsuit.

The appellate court affirmed the trial court’s order, reasoning that the plaintiff’s action was barred by section 19 of the Limitations Act, which incorporated section 204 of the Probate Act into its provisions:

“Section 14 of the Limitations Act provides that a personal injury action must be commenced within 2 years after the cause of action arose [citation]. Where, however, the person against whom the action is to be brought dies before the 2-year period expires, section 19 of the Limitations Act governs the period within which an action may be brought against an administrator after the expiration of the time provided by section 14. In pertinent part, section 19 states:
‘If a person against whom an action may be brought dies before the expiration of the time limited for the commencement thereof, and the cause of action survives, and is not otherwise barred, an action may be commenced against his executors or administrators after the expiration of the time limited for the commencement of the action, and within 6 months after the issuing of letters testamentary or of administration.’ (Emphasis added.) Ill. Rev. Stat. 1973, ch. 83, par. 20.
The phrase ‘and is not otherwise barred’ in section 19 has been construed to refer to the companion provision in section 204 of the Probate Act (Ill. Rev. Stat. 1973, ch. 3, par. 204, now Ill. Rev. Stat. 1977, ch. 110x/2, par. 18 — 12), rather than the other sections of the Limitations Act. [Citations.] Section 204 states: - * * *
‘All claims barrable under this section are in any event barred 3 years after the death of the decedent unless letters are issued upon the estate of the decedent within 3 years after his death.’ (Emphasis added.) [Citation.] * * *
Here, plaintiff’s injuries were sustained on March 29, 1973. Bernice Schultz died on January 23, 1974. The letters of administration appointing defendant as the administrator of the estate of Bernice Schultz were not issued until February 8, 1977, 2 weeks after the expiration of the 3-year claim period. A complaint naming the administrator as a defendant was not filed until February 25, 1977. Clearly, plaintiff failed to compel the issuance of letters of administration during the 3-year period and, thus, failed to pursue his claim against the estate of Bernice Schultz within the applicable period of limitations.” McCue, 80 Ill. App. 3d at 733-35, 400 N.E.2d at 685-86.

The McCue court then reconciled its holding with our decision in Schloegl:

“The decision in Schloegl v. Nardi [citation] does not mandate a different result. There, the court concluded that the administration of the estate of the alleged tortfeasor, including an inventoried liability insurance policy, did not bar the reopening of the estate to assert an action for damages, when brought before the statute of limitations ordinarily applicable to the cause of action had run. The holding in Schloegl pertained to a claim .which was properly and timely brought within the general statute of limitations. The instant case is distinguishable because plaintiff failed to bring his action against the. administrator before the ordinary 2-year period of limitations had run and, furthermore, failed to administer upon the estate of the . decedent within 3 years of her death.” McCue, 80 Ill. App. 3d at 736, 400 N.E.2d at 687.

Schloegl and McCue indicate that section 18 — 12 of the Probate Act operates as a time bar only when the action brought against the decedent falls within the purview of section 13 — 209 of the Code. Section 13 — 209 does not govern the action brought by the plaintiffs in this case. The instant suit was commenced during the lifetime of the decedent and well within the 10-year statute of limitations for actions on written contracts. (Ill. Rev. Stat. 1985, ch. 110, par. 13— 206.) Further, the statute' of limitations was never invoked at trial as a- bar to the plaintiffs’ action. If section 18 — 12(b) of the Probate Act provides no bar to the plaintiffs’ pursuit of this action, it certainly provides no basis for vacating a judgment in the plaintiffs’ favor.

In re Estate of Worrell (1982), 92 Ill. 2d 412, 442 N.E.2d 211, lends further support to the foregoing conclusion. In Worrell, the plaintiff filed a dramshop action against tavern owner Mary Worrell. After the action was filed but before it was tried, Worrell died intestate on July 19, 1978. On August 22, 1978, letters of administration were issued and publication for claims of creditors was made in accordance with the Probate Act. The initial inventory of Worrell’s property, including her tavern and a motel she owned, was filed in the probate proceeding. The statutory period for claims against the estate as originally inventoried provided for in section 18 — 12(a) of the Probate Act expired. Plaintiff, then aware of Worrell’s death, sent notice of his claim to the administrator on April 30, 1979. More than one month later, plaintiff filed notice of his claim in the probate proceedings.

In November 1979, judgment was entered in favor of plaintiff in the amount of $15,000. Of that amount, $5,000 was paid by the tavern’s insurance carrier. Plaintiff looked to the estate in order to satisfy the remaining balance. The circuit court rejected plaintiff’s claim for payment of the balance of his judgment out of the estate assets, ruling that his claim was presented to the administrator too late to be satisfied from inventoried assets.

The Illinois Supreme Court affirmed the ruling of the circuit court, observing that the fact that a suit is pending against the decedent at the time of death does not amount to an exhibition of the claim or demand made against the estate. Worrell, 92 Ill. 2d at 418, 442 N.E.2d at 214.

The special administrator argues that Worrell demonstrates that the bar of section 18 — 12 is absolute. However, in Worrell, section 18 — 12 only operated as a bar to the plaintiff’s claim for collection against the decedent’s estate. The Worrell court did not question the validity of the judgment in plaintiff’s dramshop action which the circuit court entered long after the claim period set forth in section 18— 12(a) had expired.

We conclude that section 18 — 12(b) of the Probate Act has no effect upon the validity of the jury verdict against Nick. The trial court erred in vacating the judgment in favor of the plaintiffs. Accordingly; we reverse the trial court’s entry of judgment n.o.v. and remand the cause with instructions to reinstate the jury verdict in favor of the plaintiff-appellant, Gilbert Brothers, Inc.; the trial court’s judgment stands as to plaintiff Hannah, who took no appeal therefrom.

Reversed and remanded with directions.

SPITZ and McCULLOUGH, JJ., concur.


text:
    DONALD COLEMAN, Plaintiff-Appellant, v. CENTRAL ILLINOIS PUBLIC SERVICE COMPANY, Defendant and Third-Party Plaintiff-Appellee (McCartin and McAuliffe Mechanical Contractors, Inc., Third-Party Defendant-Appellee).
    Fourth District
    No. 4 — 90—0225
    Opinion filed December 20, 1990.

      Floyd D. Peterson, Jr., of Law Offices of William W. Schooley, of Granite City, for appellant.
    Lee Humphrey, of Hinshaw, Culbertson, Moelmann, Hoban & Fuller, and Della Nelson, of Sorling, Northrup, Hanna, Cullen & Cochran, Ltd., both of Springfield, for appellee Central Illinois Public Service Company.
    Robert D. Francis and Edward L. Adelman, both of Dunham, Roman & Leskera, of East St. Louis, for appellee McCartin & McAuliffe Mechanical Contractors, Inc.
   JUSTICE GREEN

delivered the opinion of the court:

Plaintiff Donald Coleman brought suit against defendant Central Illinois Public Service Company (CIPS) following an accident at its Coffeen, Illinois, power plant. At the time of his accident, plaintiff was employed as an ironworker by third-party defendant McCartin & McAuliffe Mechanical Contractors, Inc. (McCartin & McAuliffe). Mc-Cartin & McAuliffe was a subcontractor of CIPS, retained to perform coal silo repairs. Plaintiff alleged that, after being on the repair job at CIPS for five weeks, he was injured when he slipped in a substance (later identified as Nalco), which had leaked from CIPS’ barrels onto the floor. Plaintiff alleged CIPS failed to provide a safe place to work.

On August 25, 1989, following a jury trial in the circuit court of Sangamon County, the court entered judgment on the verdict in favor of CIPS and against plaintiff. On appeal, plaintiff maintains (1) the jury’s verdict was against the manifest weight of the evidence; and (2) the trial court erred in refusing to allow plaintiff to call Lynn Keep-per, an employee of CIPS, as a witness. We hold the verdict was supported by the evidence, and the court acted within its discretion in refusing to allow Keepper to testify. We affirm.

The evidence presented at trial contained some conflict on the question of causation. Plaintiff testified (1) prior to injury, he had worked at the site for five weeks; (2) at the time of injury, April 24, 1984, the project had been finished and he and others were removing tools and materials; (3) he was in the process of lifting a tool box which had been lowered to a landing area when he slipped, fell to his knees, and injured his back when he caught the weight of the box; (4) a substance called Nalco had leaked from barrels which were in the area and had accumulated on the grating and concrete where he worked; and (5) he had seen the substance on his feet after he fell. On cross-examination plaintiff admitted (1) he knew the substance was there; (2) he had stepped around the substance on previous occasions; (3) he knew spilled substances could be hazardous; (4) he did not clean the substance up himself nor did he request his foreman or anyone from CIPS clean it up; and (5) he did not notify anyone from CIPS or McCartin & McAuliffe that the substance was there. Plaintiff described the substance on the floor as “thick grease” which was “very bright.”

Plaintiff’s testimony was corroborated by that of his brother Clyde Coleman, his nephew Kurt F. Coleman, and James L. Kimbro, all of whom testified they were present at the time plaintiff said he slipped and fell. Clyde and Kurt both testified plaintiff slipped and fell to one knee while carrying the tool box. Kimbro stated he did not see whether plaintiff slipped, but the corner of the heavy box which plaintiff was carrying “went down and that’s it.” Clyde described the substance on the floor as “anti-grease type stuff” which was “oily and base.” Kimbro described it as “gooey like ink.”

Most of the conflict in the evidence arose from testimony or exhibits purporting to show that plaintiff had made statements in regard to how he became injured which conflicted with his testimony at trial and indicated the presence of a slippery substance on the floor had not been a cause of his injury. Mary Lou Patterson, an employee of McCartin & McAuliffe, testified that plaintiff completed an accident report which indicated he injured his back while lifting a tool box. The report asked “[wjhat hazardous conditions” contributed to the accident, and the response was “none.” A deposition of Dr. Roger McFarland, whom plaintiff saw on the day of his accident, indicated the history given by plaintiff indicated “he was lifting a tool box on the morning of the 24th and developed pain in his lumbar spine.” Dr. George Shoedinger, his treating orthopedist, who testified by videotaped evidence deposition, said that plaintiff told him that the accident happened while he was lifting a tool box with another worker. He said the “mechanism” of the injury was that he slipped on a welding rod which had been lying on the floor and twisted his back.

Because of the evidence of the conflicting statements of plaintiff, the jury could properly have concluded plaintiff failed to prove his injury arose because the deck was slippery. Thus the jury’s verdict was not contrary to the manifest weight of the evidence.

On August 21, 1989, the first day of trial, CIPS presented a list of witnesses it planned to call during trial, including its employee, Lynn Keepper. Plaintiff’s counsel was informed during an in-chambers conference held immediately prior to trial that Keepper was a chemist who would not be asked to render any expert opinions but would testify as to what chemical was contained in the barrels located near where plaintiff was injured. Plaintiff objected to CIPS’ use of Keep-per at trial, because he had not been disclosed as a witness. CIPS noted that plaintiff had not filed supplemental discovery requests since 1986, and that Keepper’s identity was learned only three weeks prior to trial. The trial court indicated it would allow Keepper to testify and allowed plaintiff to interview him prior to trial. The interview was not recorded.

On the third day of trial, following plaintiff’s interview of Keep-per, plaintiff served notice to CIPS to produce Keepper as a witness pursuant to Supreme Court Rule 237 (107 Ill. 2d R. 237). CIPS objected, indicating plaintiff intended to call Keepper as an expert witness, who had not previously been disclosed pursuant to Supreme Court Rule 220 (107 Ill. 2d R. 220). CIPS noted it had intended to call Keepper only to lay a foundation for the introduction of a sample of the Nalco substance into evidence. Plaintiff then suggested that if CIPS did not intend to introduce a sample of the substance into evidence, he would have no reason to call Keepper in rebuttal. CIPS agreed not to call Keepper as a witness and agreed not to introduce into evidence a sample of the substance.

CIPS then recalled, without objection, its employee Barry Webster. Webster testified he had recently viewed the substance in these barrels and believed it to be the same substance contained in the barrels at the time of plaintiff’s accident. He described the substance as (1) a dark red liquid; (2) looking more like water than heavy antifreeze; and (3) which was not “globby” or “clumpy.” He said that when the water evaporates, it does not leave a residue. This testimony was contrary to plaintiff’s occurrence witnesses, including plaintiff, who had described the consistency of the substance variously as “thick grease,” “anti-grease type stuff” which was “oily and base,” and “gooey like ink.”

Following Webster’s testimony, and CIPS resting, plaintiff again requested to call Keepper as a rebuttal witness. CIPS objected, maintaining that the calling of Keepper was untimely because plaintiff had presented evidence of the degree of slipperiness of the Nalco on the floor of the deck in its case in chief, and defendant had responded with evidence on that subject. CIPS then contended that Keepper had not been disclosed to CIPS as required by Supreme Court Rule 220. As an offer of proof, plaintiff’s counsel indicated, if called to testify, Keepper would state:

“[TJhis is a water base stuff; it has two pounds of a solid substance which remains after the water evaporates if it spills. He did say it leaks — that it goes through stages just like water and dirt, through like slop, slush, mud, and it is slick.”

The court denied the plaintiff’s request to call Keepper without comment as to its reason for ruling.

CIPS maintains the exclusion of Keepper’s testimony was proper because (1) no proper offer of proof was made; (2) the testimony would not have been rebuttal but a corroboration of plaintiff’s evidence in chief; and (3) the testimony was inadmissible under Supreme Court Rule 220. Plaintiff asserts the offer was sufficient, the testimony rebutted that of Webster, and Rule 220 was not applicable. Plaintiff also contends Keepper’s testimony was admissible as “an admission against interest. ’ ’

We answer plaintiff’s last contention first. The phrase “admission against interest” is often used in a manner to include the admission by a party opponent exception to the hearsay rule. Plaintiff points out that statements by certain agents of a party, made in the course of the agent’s employment, may be introduced into evidence against the principal. (Sohigro Service Co. v. Industrial Comm’n (1988), 172 Ill. App. 3d 47, 526 N.E.2d 683; Donart v. Board of Governors, Western Illinois University (1976), 39 Ill. App. 3d 484, 349 N.E.2d 486.) However, plaintiff never offered to introduce into evidence any past statement of Keepper. Plaintiff requested leave to call Keepper as a witness. The issue of the admissibility of past statements by Keepper was never raised.

While the best method of making an offer of proof is to actually ask the proposed question to the -witness on the witness stand and out of the presence of any jury involved, the offer made here was adequate to preserve the ruling for appeal. The substance of the expected answer of the witness was made clear. Belfield v. Coop (1956), 8 Ill. 2d 293, 134 N.E.2d 249; M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §103.7, at 21 (5th ed. 1990).

We agree with CIPS the circuit court could properly deny plaintiff’s tender of Keepper as a rebuttal witness. Plaintiff’s witnesses in his case in chief had given their opinion of the slippery nature of the substance on the floor of the deck. This was countered by Webster. Keepper’s testimony would merely corroborate that of the plaintiff’s earlier witnesses. The admission of such testimony in rebuttal is within the sound discretion of the trial court. (People v. Daugherty (1969), 43 Ill. 2d 251, 253 N.E.2d 389; M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §611.3, at 400 (5th ed. 1990).) That discretion was not abused here. No error resulted from the exclusion of the testimony.

We need not pass upon the issue concerning Supreme Court Rule 220 as applied to the offer of Keepper’s testimony in order to affirm. However, we conclude we should address this interesting question so that the case need not be remanded to us to decide the issue if our reason for affirming is rejected on appeal. That rule requires pretrial disclosure by a party seeking to call an expert witness:

“[W]ho, because of education, training or experience, possesses knowledge of a specialized nature beyond that of the average person on a factual matter material to a claim or defense in pending litigation and who may be expected to render an opinion within his expertise at trial. He may'be an employee of a party, a party, or an independent contractor.” (107 Ill. 2d R. 220(a)(1).)

The rule indicates that “[i]n order to insure fair and equitable preparation for trial by all parties” the parties are required to act in good faith in disclosing the identity of an expert “who is retained to render an opinion at trial” and to allow the substance of his opinion to be discovered. (107 Ill. 2d R. 220(b).) The failure to make the disclosure as required by Rule 220 “will result in disqualification of the expert as a witness.” 107 Ill. 2d R. 220(b).

In the consolidated cases of Tzystuck v. Chicago Transit Authority (1988), 124 Ill. 2d 226, 529 N.E.2d 525, the supreme court stated that Rule 220 does not require the disclosure of a treating physician as an expert witness. The court noted the rule which is substantially similar to its Federal counterpart, Federal Rule 26(b)(4), does not apply to “ ‘the expert whose information was not acquired in preparation for trial but rather because he was an actor or viewer with respect to transactions or occurrences that are part of the subject matter of the lawsuit.’ ” Tzystuck, 124 Ill. 2d at 235, 529 N.E.2d at 529, quoting Fed. R. Civ. R 26(b)(4)(A)(i).

This court subsequently held that an engineer, employed by defendant, was not required to be disclosed under Supreme Court Rule 220(b)(1), where that employee was “intimately involved in the subject matter of the litigation.” (Smith v. Central Illinois Public Service Co. (1988), 176 Ill. App. 3d 482, 495, 531 N.E.2d 51, 59.) This court noted that plaintiff had previously taken the witness’ deposition, and his status as an expert was fully disclosed then. In addition, the deposition made clear that the witness’ role was as project manager for the power plant when the plaintiff was injured. This court indicated the fact that an employee of a party, who was also an occurrence witness and intimately involved in the subject of litigation, would testify was not a surprise to the plaintiff. Rather, the only surprise was that he gave an expert opinion.

Under the circumstances shown here, plaintiff maintains Keepper was not a witness “retained” by him to render an opinion at trial, as required by Rule 220. Plaintiff notes he did not hire Keepper and would not have paid him for his testimony. He claims Keepper was more similar to a treating physician, whose disclosure was found in Tzystuck not to be required under Rule 220. Plaintiff argues that Keepper’s opinions as to the consistency and properties of Nalco were not developed in anticipation of litigation but as a result of his experience as a chemist. t

CIPS points out that Keepper does fit the portion of the description in Supreme Court Rule 220 of an “expert witness” as “a person who, because of education, training or experience, possesses knowledge of a specialized nature beyond that of the average person on a factual matter material to a claim or defense in pending litigation.” (107 Ill. 2d R. 220.) He does not fit the definition of an occurrence witness as set forth in Tzystuck. Although he did not acquire his opinions in anticipation of litigation, neither did he acquire them by observation of the accident or, as far as the record shows, by personal observation of the substance itself. Nor is this witness like that in this court's opinion of Smith. Keepper was not an employee “intimately involved in the subject matter of the litigation.” (Smith, 176 Ill. App. 3d at 495, 531 N.E.2d at 59.) In Smith, the witness had designed the project and was allowed to testify concerning the safety of the design. There is no evidence here of Keepper’s involvement with this chemical substance except as far as his expertise as a chemist.

Nevertheless, the purpose of Supreme Court Rule 220 is to require advance disclosure of an expert in order to allow opposing counsel to prepare for the case with particular reference to countering the testimony of the expert. Here, as in Smith, the fact that Keepper was called as a witness was no surprise to the opposing party, CIPS. It had intended to call him. The only surprise was that he was asked to give an expert opinion as to the possible slipperiness of Nalco, the product CIPS was going to have him identify. Plaintiff points out that CIPS most likely knew what Keepper’s opinion was in regard to the slipperiness of Nalco. We agree.

This case differs from Meyer v. Caterpillar Tractor Co. (1988), 179 Ill. App. 3d 268, 533 N.E.2d 386, rev’d on other grounds (1990), 135 Ill. 2d 1, 552 N.E.2d 719. There, the appellate court held the circuit court erred in allowing a party to call, as expert witnesses, employees of the opponent without compliance with Rule 220. Unlike here, the record there did not show the opponent had intended to call those same employees on a subject very closely related to that for which they were called to testify. We recognize the circuit court here could reasonably have concluded Rule 220 required it to prohibit Keepper from testifying for plaintiff. However, we conclude the unusual circumstances here create an additional exception to the notice requirements of Supreme Court Rule 220. Fairness requires that under the very unusual situation here, notice pursuant to Rule 220 should not be a condition precedent to calling a witness such as Keep-per.

However, as we have indicated, the fact Keepper’s testimony was offered in rebuttal and for the purpose of merely corroborating plaintiff’s evidence in chief justified the circuit court’s refusal to hear the evidence.

The judgment on appeal is affirmed.

Affirmed.

STEIGMANN and KNECHT, JJ., concur.