Catalano v. Pechous

SUPPLEMENTAL OPINION ON DENIAL OF REHEARING

Mr. JUSTICE DOWNING delivered the opinion of the court:

Petitions for rehearing were filed by plaintiffs and defendant Pechous. All parties filed responses pursuant to court order. Defendant Pechous also, on January 9, 1979, filed a motion for leave to file an affidavit of Thomas P. Hardy and a certain ordinance of the City of Berwyn.

Based on our review of the petitions, the responses, and the said motion, we deem it necessary to make the following comments in denying each petition for rehearing as well as the motion of defendant Pechous for additional filings.

Our opinion was issued on December 19, 1978. On December 29, 1978, plaintiffs filed a petition for rehearing. On January 9, 1979, defendant Pechous filed both the petition for rehearing and the aforesaid motion.

For the first time defendant Pechous specifically challenges the accuracy of the following quote appearing in defendants Fineman and Field’s article which was the basis of plaintiffs’ suit:

“I said at the council meeting when the contract was first awarded that' I think 240 pieces of silver changed hands — 30 for each alderman.”

The complaint charged that Pechous said on December 29, 1975: “Two hundred forty pieces of silver changed hands — thirty for each alderman,” to which defendant answered with a general denial.

Although it is undisputed that the contract was awarded to Clearing at the December 29, 1975, council meeting, defendant Pechous now, for the first time in the record, contends that he did not make this statement until the January 12,1976, council meeting, and that he did not say “30 for each alderman.”

In support of this argument, defendant Pechous filed the post-opinion motion in this court seeking leave to file the affidavit of Thomas P. Hardy, a reporter for the Berwyn Life newspaper who attended the council meeting and wrote an article concerning the January 12, 1976, council meeting. Hardy’s affidavit states that defendant Pechous did not say “240 pieces of silver changed hands — 30 for each alderman” at the January 12 meeting. Rather, Hardy’s article, submitted in support of his affidavit, quotes defendant Pechous as follows:

“He went on to say that ‘240 pieces of silver’ cemented the relationship between Clearing and the aldermen, ‘destroying the tap roots of democracy.’ ”

Although Supreme Court Rule 366(a)(3) (Ill. Rev. Stat. 1977, ch. 110A, par. 366(a) (3)) permits this court to amend the record by correcting errors or by adding matters that should have been included, it is axiomatic that new evidence not offered during the trial of a cause cannot be introduced for the first time on appeal (H. J. Tobler Trucking Co. v. Industrial Com. (1967), 37 Ill. 2d 341, 344 , 226 N.E.2d 601 ; Kohler v. Central & Southern Truck Lines, Inc. (5th Dist. 1977), 45 Ill. App. 3d 621, 626 , 360 N.E.2d 89 ). Morever, “[n]o application for amendment of pleadings or process will be considered if made after the cause has been submitted for decision.” (Ill. Rev. Stat. 1977, ch. 110A, par. 362.) Defendant Pechous did not submit the Hardy affidavit or article to this court until long after the case had been submitted for our decision. In fact, they were not submitted until after the opinion had been issued. It is obvious that the material could have been available to defendant Pechous during the course of the trial, during the preparation of the appeal, and prior to oral argument in this court.

Nor do we believe that this new evidence falls within the rule permitting rehearing only on “points claimed to have been overlooked or misapprehended by [this] court” in its original opinion. (Ill. Rev. Stat. 1977, ch. 110A, par. 367(b).) This evidence was overlooked by defendant Pechous, not the court.

As noted in our opinion, the parties’ cross-motions for summary judgment invited the trial court to decide the issues by reference to its file. It was the parties’ position that all material facts were before the trial court, the issues were defined, and it was agreed that only a question of law was involved. (Allen v. Meyer (1958), 14 Ill. 2d 284, 292 , 152 N.E.2d 576 .) Referring to its file, the trial court found (1) the defendant’s pro se answer generally denying all of the plaintiffs allegations; (2) Fineman’s answers to the plaintiffs’ interrogatories stating that Pechous had told him, “I said at the council meeting when the contract was first awarded that 240 pieces of silver changed hands — 30 for each alderman”; (3) defendant Fineman’s uncontradicted affidavit attesting to the accuracy of the quoted statement; and (4) defendant Pechous’ own motion for summary judgment and supporting memoranda in which he incorporated the “240 pieces of silver — 30 for each alderman” statement. At no time did defendant Pechous argue to the trial court that he had made the statement on January 12, 1976, and that he had not said “30 for each alderman.”

Moreover, defendant Pechous’ briefs submitted to this court contain numerous references to the statement as quoted by defendants Fineman and Field, i.e., “240 pieces of silver — 30 for each alderman.” Furthermore, although the plaintiffs’ statement of facts asserted that defendant Pechous made the statement on December 29, 1975 as quoted in the article, defendant Pechous’ nine-page restatement of the facts in his brief never questioned this assertion. During oral argument before this court defendant Pechous did not question the accuracy of the quote, nor was the date challenged.

Supreme Court Rule 341(e)(7) provides in part that “points not argued are waived and shall not be raised in the reply brief, in oral argument, or on petition for rehearing.” (Ill. Rev. Stat. 1977, ch. 110A, par. 341(e) (7).) Although this rule is not jurisdictional and may be overridden by the need for a just result and uniform body of precedent, as stated by our supreme court in Hux v. Raben (1967), 38 Ill. 2d 223, 225 , 230 N.E.2d 831 :

“There are limitations. ‘[A]n appellate court should not, and will not, consider different theories or new questions, if proof might have been offered to refute or overcome them had they been presented at the trial.’ [Citations.]”

Obviously, the matters in defendant Pechous’ post-opinion motion could have, yes, should have, been presented in the trial court or at the very latest before oral argument in this court.

Although defendant Pechous’ pro se answer generally denying all of the plaintiffs’ allegations put the date and content of the quoted statement in issue, his subsequent pleadings not only failed to challenge its accuracy as it appeared throughout the parties’ pleadings, memoranda, and briefs, but also, reiterated these alleged inaccuracies. It is our opinion that any alleged misapprehension of the date and content of the quoted statement can only be attributed to the defendant’s course of conduct throughout this litigation and his failure to raise this issue prior to the submission of the case for our decision. Because we believe that the defendant’s efforts to correct these alleged inaccuracies have come too late, we must consider the statement as quoted in the article to be accurate. See People ex rel. Scoon v. Chicago & Alton R.R. Co. (1911), 253 Ill. 191, 196-98 , 97 N.E. 310 .

In this same post-opinion motion, defendant Pechous also sought to amend the record to include those portions of the Berwyn City Code which create and define the duties of the Board of Health of that city. His petition for rehearing argues that as a member of the Board of Health at the time he made the statement, his statement was “legitimately related to matters committed to his responsibility” and therefore was privileged under Blair v. Walker (1976), 64 Ill. 2d 1 , 349 N.E.2d 385 .

The defendant’s motion to file these ordinances at this point in the litigation suffers from the same infirmities noted previously with respect to the Hardy affidavit and article. Moreover, even if we were to take judicial notice of these ordinances, we note that the defendant advances this new theory for the first time in his petition for rehearing. Under these circumstances, we think that it can hardly be said that the defendant’s argument is grounded on a point which we misapprehended or overlooked. Furthermore, we find nothing in this theory which would aid defendant Pechous.

Petitions for rehearing denied; defendant Pechous’ motion denied.

STAMOS, P. J., and PERLIN, J., concur.