Tokar v. Crestwood Imports, Inc.

532 N.E.2d 382, 177 Ill. App. 3d 422, 126 Ill. Dec. 697, 8 U.C.C. Rep. Serv. 2d (West) 682, 1988 Ill. App. LEXIS 1722
CourtAppellate Court of Illinois
DecidedDecember 14, 1988
Docket88-1096
StatusPublished
Cited by18 cases

This text of 532 N.E.2d 382 (Tokar v. Crestwood Imports, Inc.) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Tokar v. Crestwood Imports, Inc., 532 N.E.2d 382, 177 Ill. App. 3d 422, 126 Ill. Dec. 697, 8 U.C.C. Rep. Serv. 2d (West) 682, 1988 Ill. App. LEXIS 1722 (Ill. Ct. App. 1988).

Opinion

JUSTICE FREEMAN

delivered the opinion of the court:

On April 15, 1985, plaintiff, Charles E. Tokar, filed suit against defendants, Crestwood Imports, Inc. (Crestwood), and Subaru of America, Inc. (Subaru), for breach of express and implied warranties on a Subaru vehicle under the Magnuson-Moss Warranty Act (15 U.S.C. §2301 et seq. (1976)) and the Uniform Commercial Code (the Code) (Ill. Rev. Stat. 1985, ch. 26, par. 1—101 et seq.). At the close of plaintiff’s case in chief, the trial court granted Subaru’s motion for a directed verdict. Thereafter, the jury returned a verdict for Crestwood. Plaintiff appeals the directed verdict for Subaru and the judgment on the verdict for Crestwood.

Plaintiff’s third amended complaint, on which this cause went to trial, alleged plaintiff’s purchase of a 1982 Subaru GL station wagon from defendants on June 1, 1982. The express warranty from Subaru which accompanied the vehicle covered the repair or replacement of “defects in material or workmanship *** for a period of twelve (12) months” after its delivery to the first retail purchaser. Subaru limited “[a]ny implied warranty of merchantability or fitness for a particular purpose applicable to the car” to the 12-month period of the express warranty. Plaintiff alleged that the auto had the following defects which were discovered within the warranty period: defective driver side door; defective gear shaft; defective rear quarter panel; defective cruise control; defective actuator; defective heater fan; oil leaks; grinding during acceleration; engine surge; defective oil pump; and a defective radiator.

Plaintiff filed a motion in limine to bar the testimony of John Byrne as an expert witness for Subaru. Subaru identified Byrne as such on October 14, 1987, just two weeks before the trial began on October 27, 1987. The trial court denied the motion in view of defendants’ difficulties in scheduling an inspection of plaintiff’s auto and plaintiff's deposition.

Subaru also filed two motions in limine. Paragraph four of the first motion sought to exclude any evidence relating to damages other than the cost of repairing the alleged defects which occurred within the first year of plaintiff’s ownership of the auto. Paragraph five of the same motion sought to exclude all references to engine damage or repairs. The second motion sought to exclude all evidence of defects in plaintiff’s auto occurring after 12,000 miles on the ground that Subaru’s warranties were limited to that mileage. 1 The trial court granted paragraph four of Subaru’s first motion in limine and granted the second motion. The court reserved ruling on paragraph five of Subaru’s first motion until the next day. This ruling was based on the fact that Byrne was to inspect plaintiff’s auto on the evening of the first day of trial. The record does not reflect that the court ever ruled on paragraph five of Subaru’s first motion.

Before proceeding to the specifics of plaintiff’s appeal, we affirm the directed verdict for Subaru on count II of the third amended complaint, alleging a breach of Subaru’s implied warranty of merchantability under section 2—314 of the Code (Ill. Rev. Stat. 1985, ch. 26, par. 2—314). We base that affirmance on the lack of contractual privity between plaintiff and Subaru. (Rothe v. Maloney Cadillac, Inc. (1988), 119 Ill. 2d 288, 518 N.E.2d 1028; Szajna v. General Motors Corp. (1986), 115 Ill. 2d 294, 503 N.E.2d 760.) While Subaru does not rely upon the lack of privity, we may sustain the trial court’s decision on any ground called for by the record, whether or not the trial court made its decision on the proper ground. (Estate of Johnson v. Condell Memorial Hospital (1988), 119 Ill. 2d 496, 502, 520 N.E.2d 37.) Our discussion of plaintiffs claim against Subaru for breach of implied warranty will thus be limited to the claim brought under the Magnuson-Moss Warranty Act. Rothe, 119 Ill. 2d 188, 518 N.E.2d 1028; Szajna, 115 Ill. 2d 294, 503 N.E.2d 760.

On appeal, plaintiff first contends the trial court should have barred the testimony of John Byrne, whom Subaru identified as its expert witness. Plaintiff raises the following grounds for such an order: (1) Subaru did not disclose Byrne’s identity as an expert witness until two weeks before trial, in violation of Supreme Court Rule 220 (107 Ill. 2d R. 220; McDonald’s Corp. v. Butler Co. (1987), 158 Ill. App. 3d 902, 910-12, 511 N.E.2d 912); (2) Byrne’s testimony affected the trial result; and (3) Byrne lacked the requisite expertise to testify. First National Bank v. Sousanes (1981), 96 Ill. App. 3d 1047, 1054, 422 N.E.2d 188; Community Consolidated School District v. Meneley Construction (1980), 86 Ill. App. 3d 1101, 1104, 409 N.E.2d 66.

We find that plaintiff has waived any error in Byrne’s testimony by calling him as a witness in his case in chief rather than waiting for Subaru or Crestwood to call Byrne in their cases and then objecting at that time to the admission of his testimony. See Romanek-Golub & Co. v. Anvan Hotel Corp. (1988), 168 Ill. App. 3d 1031, 1039-40, 522 N.E.2d 1341.

Plaintiff called Byrne as an adverse witness under section 2—1102 of the Civil Practice Law (Ill. Rev. Stat. 1987, ch. 110, par. 2—1102). Under section 2—1102, any party to an action, any person for whose immediate benefit an action is prosecuted or defended, or the officers, directors, managing agents, or a foreman of any party may be called and cross-examined by any adverse party. Moreover, the party calling the witness may rebut the testimony by countertestimony and may impeach the witness with prior inconsistent statements. Section 2—1102 does not allow a party to call an opponent’s expert witness as an adverse witness in his case in chief unless the witness also occupies one of the roles specifically mentioned. The trial court recognized this when, after having allowed plaintiff to call Byrne as an adverse witness, it sustained Subaru’s objection to a line of questioning by plaintiff on the grounds that Bryne was not one of the individuals listed in section 2—1102.

As plaintiff improperly called Byrne as an adverse witness under section 2—1102, he, a fortiori, must have called Byrne as his own witness. In so doing, plaintiff foreclosed his right to complain that Byrne could not testify for defendants. A party cannot complain of evidence which he himself has introduced or brought out. (Romanek-Golub & Co., 168 Ill. App.

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Bluebook (online)
532 N.E.2d 382, 177 Ill. App. 3d 422, 126 Ill. Dec. 697, 8 U.C.C. Rep. Serv. 2d (West) 682, 1988 Ill. App. LEXIS 1722, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tokar-v-crestwood-imports-inc-illappct-1988.