Lanny Darr of Alton, who in two and a half years found no evidence that mold damaged personal property of client Kesha Manning, at last offered evidence – 81 days after Madison County Circuit Judge Andy Matoesian threw out Manning's suit.
Darr, seeking to reopen a suit against Manning's landlord, submitted a Jan. 31 report from Patrick Harter of Garrett McKenzie Environmental Group, in Lake Forest.
Harter wrote that on Jan. 22, he "performed surface dust and surface swab samples to determine the presence of fungi" at Manning's apartment in Venice.
When Harter conducted the test, nearly three months had passed since Matoesian granted summary judgment to owners and managers of Bissell Apartments.
Defendants protested the tardy test in a Feb. 20 brief, two days before a scheduled hearing on a motion Darr filed to vacate summary judgment.
"Manning is attempting to submit evidence which would have been readily available to her since before the lawsuit began," wrote Troy Bozarth of Edwardsville.
"Controlling case law is crystal clear that Manning's belated submissions should not be allowed," he wrote.
The hearing did not happen, however, due to inclement weather.
Manning sued the owner of the apartments, BA-2003 Limited Partnership, in 2005, along with property manager Independent Management Services.
Darr proposed to certify a class action on behalf of all Bissell residents.
He claimed physical injuries and property damage, but later dropped the injury claim.
When defendants asked for a description of damage, Darr answered, "None at this time. Investigation continues."
Darr later submitted a list of every item of personal property Manning owned, including a mop and a fish tank.
Darr also submitted an affidavit in which Harter stated that he observed mold.
In Matoesian's court on Nov. 2, Darr said water permeated the apartments and mold infested every unit.
Defense attorney Michael Jacobson of Southfield, Mich., said Manning testified in a deposition that she didn't know if anything was contaminated or tested.
Matoesian said, "You've got a hard way to go, Mr. Darr."
Darr said, "I don't think so, your honor. Mr. Jacobson is not qualified to opine on the science of mold."
He said every unit Harter went into was contaminated.
Matoesian said, "But when she is asked what was damaged – I don't know?"
Darr said, "She has mold on her window sills. She has mold on the walls."
He said if Jacobson wanted to argue that Harter's methodology was wrong, he needed to challenge it with science.
Jacobson said, "Nowhere in his report does he test her personal property."
Darr read Harter's affidavit: "As a result of the conditions inside Kesha Manning's apartment, her personal property has been damaged by mold contamination."
Jacobson said, "We are the defendants in this case and we have the right to know what property has been damaged."
Matoesian said he would grant summary judgment.
Darr asked, "Can we have a basis of what we failed to prove?"
Matoesian said, "There is no question of fact and she does not have any damage."
Darr moved to vacate, arguing that the amount of damages was irrelevant because discovery was continuing.
"Defendants failed to grasp that the time for plaintiff to disclose her and her witnesses' opinions had yet to elapse," he wrote in a Feb. 5 brief.
"Discovery was and still is in its early stages," he wrote.
Matoesian has not rescheduled the hearing.