{
  "id": 3448114,
  "name": "TED MIKAROVSKI, Special Adm'r of the Estate of Christine Mikarovski, a Deceased Minor, Plaintiff-Appellant, v. GARY WESSON, Defendant-Appellee",
  "name_abbreviation": "Mikarovski v. Wesson",
  "decision_date": "1986-04-03",
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  "last_updated": "2023-07-14T17:12:38.085084+00:00",
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  "casebody": {
    "judges": [],
    "parties": [
      "TED MIKAROVSKI, Special Adm\u2019r of the Estate of Christine Mikarovski, a Deceased Minor, Plaintiff-Appellant, v. GARY WESSON, Defendant-Appellee."
    ],
    "opinions": [
      {
        "text": "JUSTICE UNVERZAGT\ndelivered the opinion of the court:\nPlaintiff, special administrator for the estate of Christine Mikarovski, his deceased daughter, filed a wrongful death action in which he alleged that wrongful acts by defendant, Gary Wesson, were the cause of the fire which took Christine Mikarovski\u2019s life. The trial court granted a directed verdict in favor of defendant, and plaintiff appeals. He raises the issues of whether the trial court erred in denying plaintiff a continuance for the purpose of securing the presence of an expert witness, and whether the trial court erred in denying plaintiff\u2019s motion for a new trial which was based on plaintiff\u2019s argument that the trial court must grant a new trial in order to afford plaintiff the opportunity to present the testimony of the proposed expert witness.\nThis cause proceeded to a jury trial at which plaintiff introduced evidence that Christine Mikarovski died as a result of a fire in the house where she and her father were living. Defendant owned that house, but rented it to Mr. Mikarovski. Plaintiff presented the testimony of three witnesses, and then the court recessed since plaintiff\u2019s final witness, Peter L. Dakuras, had not appeared. The record indicates that Mr. Dakuras, who was to be called as an expert for plaintiff, had been due at court at approximately 9 a.m. on that Friday morning. The court recessed at approximately 11:45 a.m. and resumed at approximately 1:30 p.m. The expert still was not present, and plaintiff\u2019s attorney represented that Dakuras\u2019 secretary had told him that Dakuras had experienced car trouble that morning. Plaintiff\u2019s counsel orally requested a continuance until Monday morning in order to secure Dakuras\u2019 presence. Plaintiff\u2019s counsel indicated that he was unable to make an offer of proof as to the substance of the proposed testimony.\nDefense counsel objected to the continuance, arguing that since it was unknown why Dakuras failed to show up, and whether Dakuras would even be available on Monday, the court should not grant the motion. The trial court denied the motion for continuance, indicating that there was no method of determining the nature of the expert\u2019s proposed testimony. The trial court then granted defendant\u2019s motion for a directed verdict.\nIn plaintiff\u2019s motion for a new trial, plaintiff argued that had a continuance been granted, the expert\u2019s testimony would have completed a prima facie case for plaintiff. Attached to plaintiff\u2019s motion for a new trial was an affidavit by Mr. Dakuras. In the affidavit, Dakuras indicated that he had been unable to appear at court because he was notified that same day that he was needed to testify in another court case. He further indicated that if allowed to testify, he would testify that in his opinion the fire which resulted in Christine Mikarovski\u2019s death was the result of faulty wiring in defendant\u2019s home.\nOn appeal, plaintiff first contends that the trial court erred in denying the motion for continuance. We do not agree. Plaintiff failed to support the request for continuance with an affidavit as required by Supreme Court Rule 231(a) (87 Ill. 2d R. 231(a)). A denial of a motion for continuance cannot be regarded as an abuse of discretion where the requirements of Supreme Court Rule 231(a) (87 Ill. 2d R. 231(a)) have not been met. (Mann v. People (1981), 98 Ill. App. 3d 448, 452; Feder v. Hiera (1980), 85 Ill. App. 3d 1001, 1003.) We note that defendant did not object to the continuance on this ground in the trial court, but while a failure to object to a lack of affidavit may waive the formal requirement that an affidavit be submitted, the substantive requirements for the content of the affidavit are not waived. (Westlake v. Moffitt (1975), 30 Ill. App. 3d 597, 599.) Supreme Court Rule 231(a) (87 Ill. 2d R. 231 (a)) requires, among other things, that the nature of the proposed testimony be set forth. Here, plaintiff specifically admitted that an offer of proof as to the nature of the proposed testimony could not be made at that time.\nUnder the circumstances of this case, where the trial court was not apprised of the nature of the proposed testimony, we conclude that the trial court did not abuse its discretion in denying the motion for continuance.\nNext, plaintiff argues that the trial court erred in denying the motion for a new trial. Attached to that motion was an affidavit by Mr. Dakuras, plaintiff\u2019s proposed expert. While submission of this affidavit at the time plaintiff moved for a continuance might have required the trial court to grant the continuance, we cannot say that the trial court erred in denying plaintiff a new trial for the purpose of presenting this additional witness. Where a party offers evidence for the first time in a post-trial motion, which could have been produced at an earlier time, it is not an abuse of discretion for the trial court to deny its introduction into evidence. (Weiner v. Exchange National Bank (1980), 87 Ill. App. 3d 1012, 1016.) Other than plaintiff\u2019s attorney\u2019s own lack of diligence in determining the substance of the testimony to be offered by his own expert witness, there is no reason that an affidavit setting forth the proposed testimony could not have been submitted at the time the continuance was requested. In light of counsel\u2019s failure to timely offer an affidavit of the proposed testimony, we conclude that the trial court did not err in denying plaintiff\u2019s motion for a new trial based upon this affidavit.\nAccordingly, the judgment of the circuit court of DeKalb County is affirmed.\nAffirmed.\nHOPF and STROUSE, JJ., concur.",
        "type": "majority",
        "author": "JUSTICE UNVERZAGT"
      }
    ],
    "attorneys": [
      "James R Minnihan and Charles W. Roddick, both of Minnihan Law- Offices, of Sycamore, for appellant.",
      "Donald L. Puckett and Bernard K. Weiler, both of Puckett, Barnett, Larson, Mickey, Wilson & Ochsenschlager, of Aurora, for appellee."
    ],
    "corrections": "",
    "head_matter": "TED MIKAROVSKI, Special Adm\u2019r of the Estate of Christine Mikarovski, a Deceased Minor, Plaintiff-Appellant, v. GARY WESSON, Defendant-Appellee.\nSecond District\nNo. 2\u201485\u20140113\nOpinion filed April 3, 1986.\nJames R Minnihan and Charles W. Roddick, both of Minnihan Law- Offices, of Sycamore, for appellant.\nDonald L. Puckett and Bernard K. Weiler, both of Puckett, Barnett, Larson, Mickey, Wilson & Ochsenschlager, of Aurora, for appellee."
  },
  "file_name": "0193-01",
  "first_page_order": 215,
  "last_page_order": 218
}