NOTICE 2020 IL App (4th) 180737-U This order was filed under Supreme FILED Court Rule 23 and may not be cited NO. 4-18-0737 April 13, 2020 as precedent by any party except in Carla Bender the limited circumstances allowed IN THE APPELLATE COURT 4th District Appellate under Rule 23(e)(1). Court, IL OF ILLINOIS
FOURTH DISTRICT
HOUSING AUTHORITY OF THE COUNTY OF CASS, ) Appeal from the ILLINOIS, ) Circuit Court of Plaintiff-Appellant, ) Cass County v. ) No. 11L8 ASSISTED HOUSING RISK MANAGEMENT ) ASSOCIATION (AHRMA), ) Honorable Defendant-Appellee. ) Bob Hardwick Jr., ) Judge Presiding.
JUSTICE DeARMOND delivered the judgment of the court. Presiding Justice Steigmann and Justice Holder White concurred in the judgment.
ORDER ¶1 Held: The appellate court affirmed, finding the trial court did not abuse its discretion in denying plaintiff’s motion to deem facts admitted, denying its motion to strike defendant’s affirmative defenses, denying its motion to bar an adverse witness, or denying its motion barring defendant from referencing the Federal Emergency Management Association (FEMA). Additionally, the trial court did not err in granting defendant’s motion for partial summary judgment on lost rental income.
¶2 After a windstorm in June 2010, plaintiff, Housing Authority of the County of
Cass, Illinois, the owner of an apartment building, filed insurance claims with defendant,
Assisted Housing Risk Management Association (AHRMA), its insurance provider. Plaintiff
claimed the windstorm caused structural damage to the apartment building covered under the
insurance contract. Plaintiff filed its complaint in December 2011, alleging it had suffered lost
rental income and other losses associated with either demolishing or rehabilitating the inhabitable structure. Plaintiff alleged the relevant insurance contract with defendant (spanning
January 1, 2010, to January 1, 2011) covered both claims.
¶3 In June 2018, after approximately seven years of litigation, a jury found in favor
of defendant. The jury’s verdict found coverage for structural damage caused by the windstorm
was provided by the insurance contract; however, defendant proved at least one affirmative
defense defeating coverage.
¶4 Plaintiff appeals, arguing the trial court erred in (1) denying its motion to deem
facts admitted, (2) incorrectly concluding defendant’s affirmative defenses were jury questions
(3) denying its motion to strike defendant’s third amended affirmative defenses, (4) denying
plaintiff’s motion to bar adverse witness Steve Horton from testifying, (5) denying plaintiff’s
motion to bar any mention of involvement of the Federal Emergency Management Association
(FEMA), and (6) granting defendant’s partial motion for summary judgment on the issue of loss
of rental income.
¶5 We affirm.
¶6 I. BACKGROUND
¶7 In June 2010, plaintiff owned an apartment complex with approximately 16 rental
units in Beardstown, Illinois. That month, a storm with high winds blew through the town,
causing structural damage to the apartment complex. After the storm, the building’s foundation
shifted, and the building eventually became uninhabitable. Plaintiff alleged the windstorm
caused or significantly contributed to the building’s damaged foundation and such damage was
covered under the insurance contract between plaintiff and defendant. Plaintiff further alleged
the foundation damage required the property to be vacated. Plaintiff filed a property claim with
defendant in June 2011. Following inspections by an architect and a structural engineer,
-2- defendant denied plaintiff’s insurance claim. Plaintiff filed its complaint in December 2011,
claiming it suffered lost rental income and other losses associated with either demolishing or
rehabilitating the structure. Plaintiff alleged the relevant insurance contract with defendant
(applicable from January 1, 2010, to January 1, 2011) covered both claims.
¶8 Defendant argued that under the applicable contract between the parties, there was
no coverage for these claims. Defendant asserted as affirmative defenses five specific exclusions
within the insurance contract exempting coverage.
¶9 This case plodded through approximately seven years of litigation before
culminating in a weeklong jury trial in June 2018. On appeal, plaintiff argues the trial court erred
in deciding numerous pretrial discovery issues as well as motions raised during both the pretrial
and trial phases of litigation. In addressing those issues raised by plaintiff’s brief and argument,
we provide only relevant background information as it relates to those particular claims.
¶ 10 In June 2018, the jury returned a verdict for defendant, finding coverage for
structural damage caused by the windstorm was provided by the insurance contract; however,
defendant proved at least one affirmative defense defeating coverage.
¶ 11 This appeal followed.
¶ 12 II. ANALYSIS
¶ 13 A. Plaintiff’s Motion to Deem Certain Facts Admitted
¶ 14 Under Illinois Supreme Court Rule 216(a) (eff. May 30, 2008), “[a] party may
serve on any other party a written request for the admission by the latter of the truth of any
specified relevant fact set forth in the request.” The facts contained in the request are admitted
within 28 days, unless the responding party denies the admissions, providing reasons why the
party cannot either admit or deny the request, or raises a written objection to the request. Ill. S.
-3- Ct. R. 216(c) (eff. May 30, 2008). A responding party must make a reasonable effort to respond
to an opposing party’s request to admit within the responding party’s reasonable control.
Szczeblewski v. Gossett, 342 Ill. App. 3d 344, 349, 795 N.E.2d 368, 372 (2003). “A request to
admit is proper if it relates to statements or opinions of fact or the application of law to fact.”
Troyan v. Reyes, 367 Ill. App. 3d 729, 739, 855 N.E.2d 967, 976 (2006) (citing P.R.S.
International, Inc. v. Shred Pax Corp., 184 Ill. 2d 224, 236, 703 N.E.2d 71, 77 (1998)).
However, a reviewing court will not disturb a trial court’s ruling on discovery matters unless the
trial court abused its discretion. Reda v. Advocate Health Care, 199 Ill. 2d 47, 54, 765 N.E.2d
1002, 1007 (2002). An abuse of discretion occurs when no reasonable person would take the
view adopted by the trial court. Kim v. Mercedes-Benz, U.S.A., Inc., 353 Ill. App. 3d 444, 452,
818 N.E.2d 713, 720 (2004). As noted by defendant, requests to admit may be contained within
the pretrial discovery section of the Illinois Supreme Court Rules (Part E.) and are considered a
part of the discovery process. However, their true purpose is not the discovery of facts but to
establish as fact certain material facts in a cause of action without the necessity of formal proof
at trial. Vision Point of Sale, Inc. v. Haas, 226 Ill. 2d 334, 346, 875 N.E.2d 1065, 1074 (2007)
(quoting P.R.S. International, 184 Ill. 2d at 237).
¶ 15 In January 2013, plaintiff served on defendant 24 requests to admit certain facts.
In February 2013, defendant responded to plaintiff’s requests. For each response, defendant
either objected to the request or indicated it could neither admit nor deny the fact and provided
reasons why it could not do so. Rather than seek a hearing on the objections to have them
addressed by the trial court, plaintiff filed a motion to deem the facts as admitted that same
month. Even plaintiff acknowledges in its brief that “striking unresponsive or evasive answers
and deeming requests admitted is the only sanction contemplated by Rule 216.” True as that may
-4- be, plaintiff skipped a step in the process—seeking a ruling on defendant’s objections, since only
the trial court, and not plaintiff unilaterally, would be invested with the authority to determine
whether a response was, in fact, “unresponsive” or “evasive” and determine the appropriate
sanction.
¶ 16 Although plaintiff does not cite the record to provide an example of its request
and defendant’s response, we were able to locate them within the record. However, it is not our
responsibility to search the record for the appellant to find reasons for reversal. See Farwell
Construction Co. v. Ticktin, 84 Ill. App. 3d, 791, 802, 405 N.E.2d 1051, 1060 (1980). By way of
example, plaintiff’s request to admit fact No. 7 states, “Admit that from June 1, 2008 through
December 31, 2011, Defendant insured the subject property against risks of direct physical loss.”
Defendant responded it could not admit or deny these requests as the address discrepancy in
plaintiff’s request could affect the alleged damages at issue in the case. Defendant argued
plaintiff’s requests contained inconsistent addresses when identifying the subject property. The
statement of values attached to plaintiff’s complaint indicated there were two buildings that
contain 16 apartment units for which defendant allegedly provided coverage, and the addresses
listed on the statement of values are different than the addresses listed in plaintiff’s request to
admit facts. Plaintiff, in its request to admit facts, provides the address of the subject property as
Eddie Garnier Apartments, Building B, 900 West 6th Street. The addresses listed on the
statement of values for the Garnier Apartments is 201 and 202 Garnier in Beardstown, Illinois.
¶ 17 Another example we found in the record illustrates one of defendant’s objections.
Plaintiff’s request to admit fact No. 17 states, “Admit damage caused by or resulting from wind
in a Covered Cause of Loss under the terms of any and all insurance contracts between Plaintiff
and Defendant which were in effect during the time period from January 1, 2010 to January 1,
-5- 2012.” Defendant objected to this request to the extent it was vague and ambiguous and called
for a legal conclusion. A request to admit that seeks the admission of a conclusion of law is
improper, and a failure to respond to such a question does not result in a judicial admission.
Robertson v. Sky Chefs, Inc., 344 Ill. App. 3d 196, 200, 799 N.E.2d 852, 856 (2003). Although
plaintiff claims defendant simply provided “boiler-plate responses,” within its own brief,
plaintiff provides no references from the record in support of its claim. Plaintiff fails to reference
the specific response to which it objects or specify what it believes about the response to be
improper.
¶ 18 At the first hearing on the issue in May 2013, the trial court took up plaintiff’s
motion to deem certain facts admitted during its case management conference. Noting the early
stages of discovery and plaintiff’s opportunity to renew the motion later, the court denied
plaintiff’s request, indicating plaintiff could raise it again after discovery had progressed.
¶ 19 From what we can tell from the record, there was no other hearing on this issue
until 2016. In August 2016, plaintiff filed a renewed motion to deem certain facts admitted, and
in September 2016, the trial court heard arguments on plaintiff’s renewed motion. The court
inquired if discovery had taken its course to warrant a reconsideration of plaintiff’s motion.
Plaintiff contended defendant had provided no further information clarifying its responses, a
position defendant disputed, contending it had provided appropriate responses to any requests for
information. Defendant also indicated plaintiff’s requests were not clear and that some required
an expert opinion to answer. After hearing arguments from both parties, the court denied
plaintiff’s motion, finding defendant’s responses were not inappropriate. Plaintiff denied any
further discovery was needed when asked by the court and reiterated its jury demand.
-6- ¶ 20 Plaintiff never sought a ruling from the court on defendant’s responses or
objections. The trial court had plaintiff’s request to admit and defendant’s response and
memorandum of law. As noted above, defendant provided the court with detailed reasons why it
could neither admit nor deny plaintiff’s requests. Instead of providing more specific or narrowly
tailored requests in response to defendant’s objections, or seeking a ruling from the court on the
objections or responses plaintiff considered inadequate, plaintiff waited over three years and
merely refiled a renewed motion to deem facts admitted. Having provided no references to the
record with regard to specific requests and the responses thereto, or legal argument in support of
plaintiff’s claimed error beyond the general principles of discovery law it provides, we have
nothing upon which to judge the trial court’s decision as unreasonable. It is plaintiff’s burden to
provide us with a sufficient record, along with cogent arguments, citing to the record where
necessary, to allow us to rule. Having failed to do so, we cannot scour the record on plaintiff’s
behalf. We are to presume the trial court knows the law and applied it properly to the issues
before it. People v. Phillips, 392 Ill. App. 3d 243, 265, 911 N.E.2d 462, 483 (2009). We cannot
find the trial court abused its discretion in denying plaintiff’s motion.
¶ 21 B. Motion to Strike Defendant’s Third Amended Affirmative Defenses
¶ 22 Plaintiff also alleges the trial court erred by denying plaintiff’s motion to strike
defendant’s third amended affirmative defenses, and consequently, the defenses were improperly
presented to the jury. Plaintiff’s argument is twofold: (1) the trial court should have granted
plaintiff’s motion to strike because the question of whether the affirmative defenses act as a
complete bar to recovery presents a legal question for the court, not the jury; and (2) the
affirmative defenses did not meet the necessary requirements.
-7- ¶ 23 A trial court has broad discretion in denying a motion to strike and the court’s
ruling will not be disturbed unless it abused its discretion. Knox College v. Celotex Corp., 88 Ill.
2d 407, 422, 430 N.E.2d 976, 983 (1981) (citing Gagne v. Village of La Grange, 36 Ill. App. 3d
864, 870, 345 N.E.2d 108, 113 (1976)).
¶ 24 In April 2017, defendant filed its third amended affirmative defenses. According
to the motion, a recently conducted deposition of plaintiff’s expert witness disclosed an
additional affirmative defense stating the building at issue was not built pursuant to the
applicable building code. Defendant’s motion outlined not only the seven affirmative defenses it
anticipated using at trial, most of which alleged plaintiff’s claims fell under policy exclusions for
the relevant contract period, but also provided a detailed explanation of why defendant believed
each defense would defeat plaintiff’s claim and indicated which subsection under the exclusions
provision was applicable. In June 2017, plaintiff filed a motion to strike defendant’s third
amended affirmative defenses. Plaintiff’s motion argued defendant’s affirmative defenses failed
to allege sufficient facts, failed to establish affirmative defenses as a matter of law, and
misinterpreted the insurance policy. Plaintiff’s motion also argued, in part, defendant provided
no evidence to support the facts for some of its affirmative defenses. In July 2017, the trial court
denied plaintiff’s motion to strike.
¶ 25 On appeal, plaintiff contends the determination of whether an affirmative defense
acts as a complete bar to recovery should have been a decision made by the trial court, as a
matter of law. Plaintiff cites no authority to support its argument, relying instead on general
assertions and conclusions.
¶ 26 An appellant’s brief must include an “[a]rgument [section], which shall contain
the contentions of the appellant and the reasons therefor, with citation of the authorities and the
-8- pages of the record relied on.” Ill. S. Ct. R. 341(h)(7) (eff. May 25, 2018). “The failure to
provide proper citations to the record is a violation of Rule 341(h)(7), the consequence of which
is the forfeiture of the argument.” (Internal quotation marks omitted.) Enbridge Pipeline
(Illinois), LLC v. Hoke, 2019 IL App (4th) 150544-B, ¶ 43, 123 N.E.3d 1271. Rule 341(h)(7)
requires citations to the record because “it is not our duty to search the record for material upon
which to base a reversal.” Ticktin, 84 Ill. App. 3d at 802.
¶ 27 There is no indication in the record plaintiff ever asked for these matters to be
ruled on as questions of law for the trial court to decide by way of summary judgment, motion,
or otherwise. Plaintiff fails to direct our attention to any portion of the record to support the
claim it now makes. Defendant contends plaintiff did not. This is particularly important in light
of the fact defendant contends these issues have either been waived or forfeited by plaintiff’s
failure to raise them before the trial court. As noted above, we do not consider Rule 341(h)(7) a
mere formality. Hall v. Naper Gold Hospitality LLC, 2012 IL App (2d) 111151, ¶ 12, 969
N.E.2d 930. The lack of compliance can hinder a reviewing court’s assessment of what
transpired in the trial court. In this matter, the record of proceedings exceeds 1300 pages and the
common law record and exhibits contain approximately 3500 pages. Plaintiff’s failure to cite to
the record to support its claims is more than a mere hindrance, as these proceedings lasted
approximately seven years and have produced a voluminous record. It is not our duty to search
the record to find material to support plaintiff’s claims upon which to base a reversal. Ticktin, 84
Ill. App. 3d at 802. Accordingly, plaintiff has forfeited the argument. Hoke, 2019 IL 150544-B,
¶ 43. From our view, there is no indication in the record plaintiff ever asserted the trial court
should decide whether affirmative defenses raised by defendant might act as a complete bar to
recovery as a matter of law during the seven years this litigation was pending.
-9- ¶ 28 The record reflects plaintiff agreed the affirmative defense language should be
submitted to the jury via jury instructions. In fact, while first proposing an alternative to
defendant’s proposed instruction, it acknowledged there was no substantive difference. The
record indicates both parties wanted to present affirmative defenses as part of the jury
instructions. During the instruction conference, plaintiff wanted the jury to decide the affirmative
defenses as an issue of fact.
¶ 29 Defendant references at least four occasions during the litigation where plaintiff
requested these matters be decided by the jury. Disregarding plaintiff’s failure to comply with
Rule 341(h)(7), plaintiff cannot pursue one course of action before the trial court and then claim
error for having done so once he appeals. “It is well settled that a party cannot acquiesce to the
manner in which the trial court proceeds and later claim on appeal that the trial court’s actions
constituted error.” People v. Hibbler, 2019 IL App (4th) 160897, ¶ 60, 129 N.E.3d 755. See also
People v. Hughes, 2015 IL 117242, ¶ 33, 69 N.E.3d 791 (“a party cannot complain of error that it
brought about or participated in”). “Active participation in the direction of proceedings *** goes
beyond mere waiver.” People v. Villarreal, 198 Ill. 2d 209, 227, 761 N.E.2d 1175, 1184 (2001).
¶ 30 Plaintiff’s acquiescence waived its claim regarding the trial court’s obligation to
rule on affirmative defense instructions, and we decline to consider it on appeal.
¶ 31 Next, plaintiff argues the trial court erred by denying its motion to strike
defendant’s third amended affirmative defenses because: (1) defendant’s defenses were
conclusions of law, (2) defendant failed to establish an affirmative defense as a matter of law,
and (3) the defenses contained a misrepresentation of the insurance policy.
¶ 32 “No pleading is bad in substance which contains such information as reasonably
informs the opposite party of the nature of the claim or defense which he or she is called upon to
- 10 - meet.” 735 ILCS 5/2-612(b) (West 2010). A pleading is sufficient if it reasonably informs the
other party of the nature of the claim or defenses it intends to pursue. Zeitz v. Village of
Glenview, 227 Ill. App. 3d 891, 894, 592 N.E.2d 384, 387 (1992). The test for determining
factual sufficiency of an affirmative defense is equivalent to a motion to dismiss. The facts must
be plainly set forth, and the court should disregard “any conclusions of law or fact not supported
by allegations of specific fact.” Farmers Automobile Insurance Ass’n v. Neumann, 2015 IL App
(3d) 140026 ¶ 16, 28 N.E.3d 830 (citing Richco Plastic Co. v. IMS Co., 288 Ill. App. 3d 782,
785, 681 N.E.2d 56, 58 (1997)). A motion to strike an affirmative defense takes as well-pleaded
all facts constituting the defense along with all reasonable inferences which may be drawn from
those facts. In re Estate of Davis, 225 Ill. App. 3d 998, 1000, 589 N.E.2d 154, 158 (1992). The
only question is the legal sufficiency of the pleading. Hartmann Realtors v. Biffar, 2014 IL App
(5th) 130543, ¶ 20, 13 N.E.3d 350.
¶ 33 In July 2017, the trial court heard plaintiff’s motion to strike. After arguments, the
court held the affirmative defenses reasonably informed plaintiff of the nature of the defenses
being raised and refused to strike them.
¶ 34 The affirmative defenses raised here properly acknowledged the existence of
plaintiff’s claim but asserted new matter which defendant contended defeated plaintiff’s right of
recovery. That is all that was required. See CitiMortgage, Inc. v. Bukowski, 2015 IL App (1st)
140780, ¶ 16, 26 N.E.3d 495. Defendant was not required to set forth detailed plans of its
defense and extensive evidence outlining its affirmative defenses. Mancou v. Mancou, 95 Ill.
App. 2d 142, 146, 237 N.E.2d 801, 803 (1968). It was defendant’s responsibility to allege facts
sufficient to satisfy each element of the claimed defense. The trial court was then invested with
the responsibility to determine the sufficiency of the affirmative defenses, disregarding any
- 11 - conclusions of fact or law that were not supported by the allegations of specific facts. Hartmann
Realtors, 2014 IL 130543, ¶ 20. More importantly, plaintiff fails to identify in what way each
defense was legally deficient, cite to the record, or provide legal authority in support of its
position on each defense. Once again, it asks us to scour the record to find a basis to rule in its
favor. This we will not, and should not, do. See Illinois Supreme Court Rule 341(h)(7) (eff. May
25, 2018)
¶ 35 Accordingly, we cannot find the trial court’s decision in denying plaintiff’s
motion to strike was so arbitrary, fanciful or such that no reasonable person would take the view
adopted by the trial court. People v. Hall, 195 Ill. 2d 1, 20, 743 N.E.2d 126, 138 (2000). We
therefore find no abuse of discretion.
¶ 36 C. Witness Steven Horton
¶ 37 Plaintiff next argues the trial court abused its discretion by allowing defendant to
call Steven Horton as an adverse witness, contending defendant’s failure to list him as a witness
under Illinois Supreme Court Rule 213 (eff. Jan. 1, 2007) prejudiced plaintiff. Horton was
disclosed by plaintiff as a potential witness. In response to written interrogatories, plaintiff said it
would present Horton to testify to:
“all matters related to the subject property and Plaintiff’s
complaint, including the maintenance of the subject property,
condition of the property at all times, rental income generated by
the subject property, insurance costs and payments, lack of
complaints, condition of the property following storm event, costs
of repairs and cleanup, condition of Building A at all times
relevant. Statements made to witness regarding causation.
- 12 - Statement made to witness by other AHRMA members regarding
concerns about adequacy of reserves of Defendant and reasons for
denial.”
¶ 38 Plaintiff further disclosed Horton as a witness to testify as follows:
“In addition to the subject matters previously disclosed [as
set forth above], Steven R. Horton is expected to testify as to the
general market costs of construction for multi-dwelling buildings
in the Beardstown and Cass County, Illinois area. Mr. Horton will
testify as to the number of construction projects he has been
involved in as executive director of Plaintiff, together with the
approximate cost per square foot of construction based on market
conditions. Steven R. Horton will testify that the cost of demolition
and construction will exceed the limits of insurance coverage
provided by Defendant.”
¶ 39 Horton was deposed three times during pretrial preparation with plaintiff’s
counsel present and participating each time. He was the representative of plaintiff and the sole
witness directly associated with plaintiff.
¶ 40 Under section 2-1102 of the Code of Civil Procedure (Code), a witness may be
called as an adverse party and examined as if on cross-examination if the witness is a party to the
action or is “any person for whose immediate benefit the action is prosecuted or defended, or the
officers, directors, managing agents or foreman of any party to the action.” 735 ILCS 5/2-1102
(West 2010). In order to qualify as an adverse party, “the witness must perform some function of
authority with the opponent to the side calling that witness.” Arians v. Larkin Bank, 253 Ill. App.
- 13 - 3d 1037, 1046, 625 N.E.2d 1101, 1107 (1993) (citing Mazanek v. Rockford Drop Forge Co., 98
Ill. App. 3d 956, 962, 424 N.E.2d 1271, 1277 (1981)).
¶ 41 The admission of evidence under Rule 213 is within the trial court’s discretion,
and the court’s decision will not be disturbed absent an abuse of that discretion. Thornhill v.
Midwest Physician Center of Orland Park, 337 Ill. App. 3d 1034, 1046, 787 N.E.2d 247, 257
(2003).
¶ 42 In order for us to determine whether a trial court abused its discretion in allowing
a previously undisclosed witness to testify, we must consider: (1) the surprise to the adverse
party, (2) the prejudicial effect of the testimony, (3) the nature of the testimony, (4) the diligence
of the adverse party, (5) the timeliness of any objection, and (6) the good faith of the party
calling the witness. Pancoe v. Singh, 376 Ill. App. 3d 900, 913, 876 N.E.2d 288, 299 (2007).
Even if the trial court improperly allows testimony of an adverse witness, a reversal is not
warranted unless the opposing party suffers prejudice. Arians, 253 Ill. App. 3d at 1046.
¶ 43 By failing to provide proper citations to the record, plaintiff has forfeited its
arguments, as “[m]ere contentions, without argument or citation to authority, do not merit
consideration on appeal.” Naper Gold Hospitality LLC, 2012 IL App (2d) 111151 ¶ 12, 969
N.E.2d 930 (citing Palm v. 2800 Lake Shore Drive Condominium Ass’n, 401 Ill. App. 3d 868,
881, 929 N.E.2d 641, 653 (2010)).
¶ 44 During cross-examination, Horton was confronted with previous discovery
responses defendant believed conflicted with his testimony on direct examination. Plaintiff
objected, claiming it was beyond the scope of his direct examination. Counsel for the defense
noted he would either continue questioning him on cross-examination or recall him as an adverse
witness later under section 2-1102 of the Code (735 ILCS 5/2-1102 (West 2010) (“officers,
- 14 - directors, managing agents or foreman of any party to the action, may be called and examined as
if under cross-examination at the instance of any adverse party. The party calling for the
examination *** may rebut the testimony *** and may impeach the witness by proof of prior
inconsistent statements.”)).
¶ 45 It is difficult to imagine how plaintiff could be surprised by the defense calling
Horton as an adverse witness. He is the executive director of the Cass County Housing
Authority. He was subjected to several rounds of discovery during the lengthy pretrial stage,
including responding to multiple interrogatories and participating in three depositions.
¶ 46 Although plaintiff objected to defendant’s questioning as being beyond the scope
of cross-examination, it fails to identify any place in the record where it indicates what and how
any testimony elicited by defendant was actually beyond the scope of direct examination.
Further, plaintiff fails to identify in what way it was prejudiced, quote the testimony it contends
should not have been permitted, or explain how it managed to catch plaintiff by surprise.
¶ 47 As the appellant, plaintiff bears the burden of providing a sufficient record on
appeal in order to support its claims, and in the absence of such record, we must presume the trial
court’s ruling on the admissibility of the evidence was in conformity with the law and had a
sufficient factual basis. Foutch v. O’Bryant, 99 Ill. 2d 389, 391-92, 459 N.E.2d 958, 959 (1984).
Furthermore, any doubt arising from the incompleteness of the record will be resolved against
the appellant. Foutch, 99 Ill. 2d at 392.
¶ 48 As a result, we cannot say the trial court’s decision to allow Horton to be called as
an adverse witness was an abuse of discretion.
¶ 49 D. FEMA Motion in Limine
- 15 - ¶ 50 In June 2017, plaintiff filed a motion in limine seeking to bar defendant from
referring to the presence or involvement of FEMA at any earlier time. Specifically, plaintiff
sought to bar evidence or reference to FEMA’s inspection of the property in 1993, FEMA’s
identification of any foundational or structural deficiency of the building during its inspections,
or any funding FEMA provided to correct any deficiencies. Plaintiff contends defendant’s
affirmative defenses referenced FEMA, but defendant never produced any evidence relating to
FEMA and could not overcome any hearsay objections.
¶ 51 “ ‘A trial judge has discretion in granting a motion in limine and a reviewing court
will not reverse a trial court’s order allowing or excluding evidence unless that discretion was
clearly abused.’ ” Gallina v. Watson, 354 Ill. App. 3d 515, 518, 821 N.E.2d 326, 329 (2004)
(quoting Swick v. Liautaud, 169 Ill. 2d 504, 521, 662 N.E.2d 1238, 1246 (1996)). In determining
if a trial court abused its discretion, a reviewing court should determine if the trial court’s
decision “ ‘exceeded bounds of reasons and ignored recognized principles of law so that
substantial prejudice resulted.’ ” Zurich Insurance Co. v. Raymark Industries, Inc., 213 Ill. App.
3d 591, 595, 572 N.E.2d 1119, 1122 (1991) (quoting In re Marriage of Aud, 142 Ill. App. 3d
320, 326, 491 N.E.2d 894, 898 (1986)).
¶ 52 In April 2018, the trial court heard arguments on the motion. During argument, it
was disclosed FEMA was mentioned in a report authored at the behest of plaintiff, not defendant.
The report indicated that, in approximately 1993, after a flood, FEMA inspected the building
which was the subject of this litigation along with others, and it recommended cross-bracing
support structures be placed at the foundation. One of defendant’s affirmative defenses claimed
plaintiff did not adequately implement this recommended cross-bracing to help support the
foundation of the building, and defendant was thus excluded from providing coverage.
- 16 - ¶ 53 The trial court concluded plaintiff could certainly raise any objections it saw fit at
trial regarding references to FEMA and the court would rule on those objections at that time.
There is no obligation on the part of a trial court to rule on an in limine motion prior to trial.
Compton v. Ubilluz, 353 Ill. App. 3d 863, 871, 819 N.E.2d 767, 776 (2004). A court is
disadvantaged by doing so “ ‘because it is considered in a vacuum, before the presentation of the
full evidence at trial that may justify admission or require exclusion.’ ” Davis v. City of Chicago,
2014 IL App (1st) 122427, ¶ 94, 8 N.E.3d 120 (quoting Compton, 353 Ill. App. 3d at 871). At
trial, plaintiff’s two expert witnesses testified without objection to their reliance on the report
referencing FEMA’s involvement after the earlier flood and their recommendations for cross-
bracing to support the foundation.
¶ 54 The dispute between the experts centered on whether the damage to the
foundation arose from the one storm event, as plaintiffs contended, or from progressive structural
failure, as defendant’s experts opined. Without objection by plaintiff’s counsel, defendant’s
experts discussed the FEMA report and the need and purpose for the cross-bracing they
recommended.
¶ 55 There was nothing unreasonable about the trial court denying plaintiff’s in limine
motion. The evidence of which plaintiff complained before trial was presented without objection
by plaintiff’s counsel. As noted above, plaintiff’s failure to cite the record with specific
references to testimony it believed inadmissible further hinders this court’s ability to conclude
otherwise and therefore, we cannot find the court abused its discretion.
¶ 56 Furthermore, as plaintiff did not voice an objection during any of the trial
testimony elicited from defendant’s experts regarding FEMA’s investigation and
recommendations, it has failed to preserve this issue on appeal and cannot now claim the trial
- 17 - court’s actions constituted error. See Zook v. Norfolk & Western Ry. Co., 268 Ill. App. 3d 157,
162, 642 N.E.2d 1348, 1352 (1994) (“denial of a motion in limine does not preserve an objection
to the disputed evidence later introduced at trial. The moving party must contemporaneously
object when the evidence is offered or it waives the objection”).
¶ 57 E. Summary Judgment on Lost Rental Income
¶ 58 Plaintiff contends the court erred in granting defendant’s motion for summary
judgment on the issue of lost rental income, claiming the plain language of the insurance contract
provided coverage for this loss. Following the storm in June 2010, plaintiff sought the full
amount of rental income allegedly lost due to the storm from April 1, 2011, to the date of trial.
¶ 59 A trial court’s ruling on a motion for summary judgment is subject to de novo
review. Wolinsky v. Kadison, 2013 IL App (1st) 111186, ¶ 100, 987 N.E.2d 971. It is proper to
grant a motion for summary judgment when the “pleadings, depositions, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any material fact and
that the moving party is entitled a judgment as a matter of law.” 735 ILCS 5/2-1005(c) (West
2010).
¶ 60 The question before the court related to the construction of the insurance policy.
Insurance policies are subject to the same rules of construction and interpretation as other types
of contracts. Nicor, Inc. v. Associated Electric & Gas Insurance Services, Ltd, 223 Ill. 2d 407,
416, 860 N.E.2d 280, 285 (2006). The words contained within an insurance policy should be
given their plain and ordinary meaning. Nicor, 223 Ill. 2d at 416. If the terms of a contract are
ambiguous, the interpretation of the meaning is a question of fact. Farm Credit Bank of St. Louis
v. Whitlock, 144 Ill. 2d 440, 447, 581 N.E.2d 664, 667 (1991).
- 18 - ¶ 61 Defendant’s motion included an affidavit from defendant’s chief executive officer
verifying the insurance policy in place during the times relevant to plaintiff’s claim and an
affidavit from the designer of defendant’s policy coverage forms. Between them, they certified
that “[t]there is no coverage for lost rental income in the Coverage Agreement issued to Housing
Authority of County of Cass for the period of January 1, 2010 to January 1, 2011.” Section 3 of
the 2010 coverage agreement stated defendant would not pay for loss or damage caused by or
resulting from “Delay, loss of use or loss of market.” According to the insurance contract and
both affidavits, no coverage for lost rental income was provided under any coverage agreement
between defendant and plaintiff before January 1, 2011, and thus no provision for coverage for
lost rental income was included in June 2010, when the storm allegedly damaged the building.
¶ 62 The trial court granted defendant’s motion for partial summary judgment, finding
“there [are] no genuine issues of material fact, and that the policy in effect for 2010, the year in
which the damage occurred, provides no coverage for lost income.”
¶ 63 We find that based on the pleadings and affidavits before it, the trial court’s
granting of partial summary judgment was proper. See 735 ILCS 5/2-1005(c) (West 2010).
¶ 64 III. CONCLUSION
¶ 65 For the reasons stated, we affirm the trial court’s judgment.
¶ 66 Affirmed.
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