Ideal Tool & Manufacturing v. One Three Six, Inc.

                                                            Second Division












1-96-1471

IDEAL TOOL & MANUFACTURING CO.,         )  Appeal from the
                                        )  Circuit Court of
     Plaintiff-Appellee,                )  Cook County.
                                        )
     v.                                 )  
                                        )
ONE THREE SIX, INC., formerly           ) 
known as SHRED PAX CORP.,               )  Honorable
                                        )  Kenneth L. Gillis,
     Defendant-Appellant.               )  Judge Presiding.


     JUSTICE RAKOWSKI delivered the opinion of the court:

     Plaintiff, Ideal Tool & Manufacturing Company, filed suit
against defendant, Shred Pax Corporation, now known as One Three
Six, Inc., for breach of contract.  The trial court granted
plaintiff's motion for summary judgment pursuant to section 2-
1005 of the Code of Civil Procedure (735 ILCS 5/2-1005 (West
1994)), plaintiff's motion to suppress depositions, and denied
defendant's motion to reconsider (735 ILCS 5/2-1203 (West 1994)). 
Judgment was rendered against defendant in the amount of
$397,475.  Defendant appeals, contending that the trial court:
(1) erred in suppressing depositions; (2) erred in granting
plaintiff summary judgment; and (3) erred in awarding plaintiff
damages on the full contract price.  We reverse and remand.
                                   FACTS
     Defendant manufactures and sells industrial shredding
equipment.  Plaintiff manufactured component parts for defendant. 
In a typical situation, defendant would request a quotation for
specific goods.  Plaintiff would issue a quotation including the
quantity, type, specifications, and price.  If defendant accepted
the quotation, it would issue a purchase order confirming the
quantity, type, specifications, and price.  Upon receipt of
defendant's purchase order plaintiff would issue an internal job
order and commence manufacturing.  Between August 2, 1993, and
October 27, 1993, defendant issued seven purchase orders to
plaintiff for the manufacture and delivery of component parts. 
Relations broke down between the parties, and ultimately, since
defendant refused to pay, plaintiff filed suit seeking the full
contract price for each of the seven purchase orders.
     During the hearing on summary judgment, the parties and the
court referred to certain deposition testimony.  The depositions
are those of Al Kaczmarek, defendant's founder and engineer,
Carol Nolan, defendant's purchasing manager, and Eric Sund,
plaintiff's president.  Defendant referred to portions of these
depositions in its response to the motion for summary judgment
but had not filed them with the court.  Plaintiff referred to two
of the three depositions in its motion for summary judgment but
had not filed the depositions with the court either.  Plaintiff
additionally relied on the affidavit of its president, Eric Sund,
in support of its motion for summary judgment.
     In reply to defendant's response to motion for summary
judgment, plaintiff raised the issue that the transcripts were
not filed with the court.  At the summary judgment hearing,
plaintiff immediately mentioned to the court that defendant had
not filed the transcripts.  It then continued to argue the merits
of its motion.  When defense counsel first addressed the court,
he stated: "[A]s an initial starting point, I guess the correct
place to start is I do have copies of all of the completed
original depositions, the copies with me.  If your Honor wishes,
we will file them with the court.  Signature has either been
waived or the depositions have been reviewed by all of the
parties."  The court did not respond to this offer, nor did
plaintiff object.  Defendant then argued in opposition to the
motion, citing the depositions on numerous occasions.  During
argument, the court cited to and quoted from one of the
depositions.  After the trial court granted plaintiff's motion
for summary judgment, defendant moved to file the transcripts. 
Plaintiff objected, arguing this was an attempt to supplement the
record.  The trial court agreed and denied defendant's request to
file the transcripts.  The next day, defendant filed the
transcripts with the clerk of the court.
     Defendant then filed a motion for reconsideration. 
Plaintiff responded by filing a motion to suppress deposition
testimony.  Both motions were heard at the same time.  At the
hearing, plaintiff again stated that defendant failed to file the
transcripts.  Defendant argued that the court had discretion to
allow filing even at this phase of the proceedings.  The trial
court granted plaintiff's motion to suppress and denied
defendant's motion for reconsideration.
                                 ANALYSIS
                 A.  SUPPRESSION OF DEPOSITION TRANSCRIPTS

     Section 2-1005 addresses motions for summary judgment and
provides:
          "The opposite party may prior to or at the
          time of the hearing on the motion file
          counteraffidavits.  The judgment sought shall
          be rendered without delay if 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 to
          judgment as a matter of law."  (Emphasis
          added.)  725 ILCS 5/2-1005(c) (West 1994).
     Supreme Court Rule 207 addresses the filing of depositions
and states:
          "(1) ***.  At the request of any party, the
          officer shall then securely seal the
          deposition, together with all exhibits, or
          copies thereof, in an envelope bearing the
          title and number of the action and marked
          'Deposition(s) of (here insert name(s) of
          deponent(s))' and promptly file it or send it
          by registered or certified mail to the clerk
          of the court for filing.
          (2) The party causing a deposition to be
          filed shall promptly serve notice thereof on
          the other parties."  Rule 207(b) (134 Ill. 2d
          R. 207(b)).
     To be sure, "the rule allowing the use of deposition
testimony in support of a motion for summary judgment
contemplates that the deposition relied upon is one which has
properly been made a part of the court record," (Urban v.
Iverness, 176 Ill. App. 3d 1, 6 (1988)), e.g., filed with the
court pursuant to Rule 207(b).  725 ILCS 5/2-1005(c) (West 1994);
McCullough v. Gallaher & Speck, 254 Ill. App. 3d 941, 947 (1993);
Ciochan v. Bellino, 184 Ill. App. 3d 993, 999 (1989); Benzin v.
Ginsburg, 59 Ill. App. 3d 429, 436 (1978).  If a deposition is
not on file, the trial court may, on motion of a party, suppress
the deposition and prohibit use of it in support of or in
opposition to a motion for summary judgment.  Urban, 176 Ill.
App. 3d at 6-7; Wilson v. Wilson, 159 Ill. App. 3d 1091, 1096
(1987).
     Notwithstanding the general rule, courts have permitted
exceptions and allowed parties to rely on a deposition that was
not filed at the time of the summary judgment hearing.  One
example is where a party fails to object to the violation at the
trial court level and raises it for the first time on appeal. 
See Urban, 176 Ill. App. 3d at 6-7; Wilson, 159 Ill. App. 3d at
1096.  Also, where plaintiff's counsel was present at the
depositions, the transcripts were available to him, the
transcripts were presented to the trial court, and the trial
court considered them in its decision on defendant's motion for
summary judgment, the trial court's reliance on the unfiled
depositions has been found proper.  Schumann v. IPCO Hospital
Corp., 93 Ill. App. 3d 1053, 1055-56 (1981); Cibis v. Hunt, 48
Ill. App. 2d 487, 492-93 (1964).  Likewise, where both parties
had relied on unfiled depositions and requested the trial court
to consider them in rendering its decision, no reversible error
in the trial court's consideration of the depositions was found. 
Fedco Electric Co. v. Stunkel, 77 Ill. App. 3d 38, 51 (1979). 
Accord Adler Business Machines, Inc. v. Babbey Office Machines,
Inc., 24 Ill. App. 3d 38 (1974) (mere fact that depositions
referred to in affidavit in support of motion for summary
judgment were not on file with clerk of court at time of hearing
did not mandate reversal) (abstract of op.).
     In all of the above situations, albeit a violation of the
rule, reversal was not mandated pursuant to principles of waiver
and/or lack of prejudice.
     In the instant case, at the time of the summary judgment
hearing, plaintiff's reply clearly reflected that the deposition
transcripts had not been filed with the court.  The trial court,
however, did not question the parties about the status of the
transcripts.  Plaintiff also raised the issue when it addressed
the court.  The record does not reflect any response by the trial
court.  After plaintiff argued the merits of its case, defendant
presented its argument.  The first statement defendant made to
the court was: "[i]f your Honor wishes, we will file them
[original depositions] with the Court."  Contrary to plaintiff's
argument, this undoubtedly can be construed as an offer to file
the depositions.  Again, the record does not reflect a response
from the court or any objection from plaintiff.  In its argument,
defendant repeatedly referred to the depositions without comment
from the court or objection from plaintiff's counsel.  One could
presume from the court's silence and plaintiff's failure to
object when defendant initially offered to file the transcripts,
that defendant would be allowed to file the transcripts at the
conclusion of the hearing as a ministerial matter.  This
presumption would not be unreasonable particularly in light of
the fact counsel was permitted to repeatedly rely on the
depositions and the trial court itself relied on the depositions
during argument and while rendering its decision.
     We see no prejudice to plaintiff by permitting defendant to
file the transcripts.  As in Schumann and Stunkel, plaintiff's
counsel was present at the depositions, the transcripts were
available to him, he relied upon the depositions, and he sought
the trial court's reliance on the depositions in determining the
motion for summary judgment. 
     This is not to say that the trial court did not have other
options.  The trial court could also have stated immediately that
it was refusing to consider the deposition testimony on behalf of
either party.  This would be in accord with section 2-1005 and
Rule 207.  In that event, both sides could re-evaluate their
respective positions.  If it deemed appropriate, plaintiff could
request time to file the deposition transcripts.  If the request
was denied, plaintiff could withdraw its motion for summary
judgment or elect to proceed based on Sund's affidavit alone. 
Defendant could have made a record on its request to file the
transcripts.
     At a summary judgment proceeding, the court and the parties
should know at the outset what evidence will be considered.  The
parties are then aware of the court's focus and can limit their
arguments accordingly.  More importantly, on review, the record
will clearly reflect the basis for the trial court's decision and
the propriety of summary judgment can be readily determined.
     In the instant case, this was not done.  The parties relied
upon and argued deposition testimony that was subsequently
suppressed.  In its decision, the trial court too referred to
suppressed testimony.  Moreover, after a careful review of the
record, we are not confident that summary judgment in the amount
of $397,475 can be based solely upon the affidavit of Sund,
particularly with respect to whether defendant's rejection of
certain goods was legally and factually effective.
                                CONCLUSION
     Based on the foregoing, we reverse the trial court's entry
of summary judgment and remand for proceedings not inconsistent
with this opinion.
     In doing so, we wish to emphasize that we in no way condone
the practice of filing motions for summary judgment or responses
thereto that rely on unfiled deposition transcripts.  Nor do we
suggest that when such conduct occurs the trial court should in
all instances either continue the matter or allow filing of the
transcripts.  This is particularly true where, unlike the instant
case, one side has complied with the rules.  Rather, the focus of
this opinion is that whatever course the trial court elects, the
decision should be made at the outset so that the parties are
aware what evidence will be considered and the record clearly
reflects the basis for entry of summary judgment.
     Reversed and remanded.
     DiVITO, P.J., and TULLY, J., concur.