Crim v. Dietrich , 2020 IL 124318 ( 2020 )

2020 IL 124318IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 124318)
COLLIN CRIM, a Minor, by His Parents and Next Friends, Kristopher Crim
and Teri Crim, Appellees, v. GINA DIETRICH, Appellant.
Opinion filed April 2, 2020.
JUSTICE KARMEIER delivered the judgment of the court, with opinion.
Justices Garman, Theis, and Neville concurred in the judgment and opinion.
Chief Justice Anne M. Burke specially concurred, with opinion.
Justice Kilbride dissented, with opinion.
Justice Michael J. Burke took no part in the decision.
OPINION
¶1 In this appeal, the circuit court of Adams County certified the following
question for interlocutory appeal pursuant to Illinois Supreme Court Rule 308 (Ill.
S. Ct. R. 308 (eff. July 1, 2017)): “Whether the ruling of the appellate court, 2016
IL App (4th) 150843, reversing the judgment and remanding this case for a new
trial requires a trial de novo on all claims.” The appellate court answered this
question in the affirmative. 2018 IL App (4th) 170864-U. We granted defendant’s
petition for leave to appeal. Ill. S. Ct. R. 315 (eff. July 1, 2018). We also granted
motions by the Illinois Association of Defense Trial Counsel to file an
amicus curiae brief in support of defendant and the Illinois Trial Lawyers’
Association (ITLA) to file an amicus curiae brief in support of plaintiffs. Ill. S. Ct.
R. 345 (eff. Sept. 20, 2010). For the reasons that follow, we reverse the judgments
of the appellate court and circuit court and remand the matter to the circuit court
for further proceedings consistent with this opinion.
¶2 BACKGROUND
¶3 Because our resolution of this appeal concerns a narrow certified question, we
summarize here only those facts pertinent to our disposition. The underlying
litigation is more fully set forth in the appellate court’s initial opinion, Crim v.
Dietrich, 2016 IL App (4th) 150843 (Crim I).
¶4 In August 2015, plaintiffs, Kristopher Crim and Teri Crim, acting on behalf of
their biological son, Collin Crim (born June 17, 2005), filed a fourth amended
medical malpractice claim against defendant, Gina Dietrich, D.O., alleging two
claims: (1) Defendant failed to obtain Teri’s informed consent to perform a natural
birth despite possible risks associated with Collin’s large size, and (2) defendant
negligently delivered Collin, causing him injuries. The allegations supporting the
informed consent claim are found in subparagraphs (a) thru (j) of plaintiffs’ fourth
amended complaint, while subparagraphs (k) and (l) concern the allegations related
to professional negligence during the delivery of the child.
¶5 As to the informed consent claim, plaintiffs alleged, among other things, that
prior to birth, defendant failed to diagnose Collin with fetal macrosomia because
she failed to recognize the significance of Teri’s fundal heights, failed to assess the
fetal weight, and failed to order an ultrasound prior to inducing labor. As a result,
plaintiffs claim that defendant failed to inform Teri of the risks and benefits of
vaginal birth as opposed to Caesarean section, failed to inform her of the high risk
of shoulder dystocia and brachial plexus injury in the event of a vaginal birth, and
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failed to offer Teri the option of delivering Collin by Caesarean section, given
Collin’s large size.
¶6 The negligence claim, under subparagraphs (k)-(l), alleged negligent
professional conduct during the birth of Collin. During Collin’s June 17, 2005,
natural delivery, Collin suffered shoulder dystocia, which is an obstructed labor
whereby, after the delivery of the head, one or both shoulders of an infant cannot
pass or requires significant manipulation. As a result, Collin suffered a broken
clavicle and extensive nerve damage in his right shoulder, arm, and hand.
¶7 In September 2015, the matter proceeded to a jury trial. Following the
presentation of the plaintiffs’ case, defendant moved for a partial directed verdict
on the issue of informed consent, arguing that the appellate court’s decision in
St. Gemme v. Tomlin, 118 Ill. App. 3d 766 (4th Dist.1983), requires plaintiffs to
present expert testimony that a reasonable patient would have pursued a different
form of treatment. Defendant argued that plaintiffs failed to proffer an expert to
satisfy St. Gemme’s holding. The circuit court agreed, granting defendant’s motion
for a directed verdict on the issue of informed consent. Thereafter, following
additional evidence and argument, the jury returned a verdict in defendant’s favor
and against plaintiffs on their remaining claim of professional negligence.
¶8 After the circuit court entered the judgment on the jury’s verdict, the plaintiffs
did not file any post-trial motions. Instead, on October 15, 2015, plaintiffs filed a
timely notice of appeal.
¶9 Relevant to the appeal before this court, plaintiffs argued in Crim I that the
circuit court erred by granting a directed verdict on the issue of informed consent.
In the introductory paragraph of their opening brief, plaintiffs framed their appeal
as a review only on whether the circuit court erred in issuing a directed verdict on
the informed consent claim, expressly stating: “While this case was tried to verdict,
this appeal is not based upon the verdict of a jury. This appeal reviews the trial
court’s order granting a partial directed verdict in favor of the Defendant on the
Plaintiffs’ theory of negligence based upon the doctrine of informed consent.”
¶ 10 Plaintiffs asserted that expert testimony was not required to show what a
reasonable patient would have done. Instead, plaintiffs contended that they
sufficiently presented a claim on informed consent by offering Teri’s testimony that
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she would have had a Caesarean section, had she known about Collin’s size and the
risks associated with the natural birth of a macrosomic baby. Consistent with their
introductory paragraph, plaintiffs presented no argument in either their opening
brief or reply brief addressing the jury’s verdict regarding professional negligence.
Rather, plaintiffs asked the appellate court to “reverse each and every decision and
order entered in the trial court which were further steps in the procedural
progression of enforcing or otherwise remaining consistent with the Court’s Order
granting the Defendant’s Motion for Directed Verdict.”
¶ 11 On November 7, 2016, the appellate court issued its opinion in Crim I, reversing
the circuit’s court’s judgment and remanding the case to the circuit court. 2016 IL
App (4th) 150843, ¶ 51. The appellate court limited its decision to an analysis of
the partial directed verdict on the issue of informed consent, stating it need not
address the subsequent proceedings following the directed verdict “because it is not
pertinent to the resolution of this case.” Id. ¶ 29. The appellate court’s mandate
stated, “the order on appeal from the circuit court be REVERSED and the cause be
remanded to the Circuit Court for the Eighth Judicial Circuit Adams County, for
such other proceedings as required by order of this court.”
¶ 12 Upon remand, the parties disagreed on what issues and facts could be retried.
Defendant filed a motion in limine to exclude the presentation of any evidence
relating to plaintiffs’ negligent delivery claim, thereby requesting the new trial be
conducted solely on the issue of informed consent. Defendant argued that the
appellate court’s opinion addressed only the informed consent claim and, therefore,
the only issue and facts that should be retried are those related to plaintiffs’
informed consent claim. Defendant further noted that plaintiffs forfeited their right
to have a new trial on their professional negligence claim because they failed to file
a post-trial motion as required by section 2-1202 of the Code of Civil Procedure.
735 ILCS 5/2-1202 (West 2016). 1 Therefore, according to defendant, the circuit
court was barred from relitigating the jury’s verdict.
1
Section 2-1202(e) uses the term “waiver” to describe the relinquishment of the right to apply
for a new trial when the party fails to file a posttrial motion. 735 ILCS 5/2-1202 (West 2016). For
purposes of this opinion, we use the term “forfeiture” instead of “waiver” because, by failing to file
a posttrial motion in contravention of section 2-1202(e), plaintiffs failed to timely comply with
procedural requirements, which we consider to be a forfeiture of a claim. See People v. Hughes,
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¶ 13 In response, plaintiffs claimed that a new trial on all issues was necessary
because the appellate court issued a general mandate and the appellate court
reversed the circuit court’s judgment in its entirety and did not limit the issues the
new trial could address. In regard to defendant’s claim of forfeiture, plaintiffs
asserted they preserved all issues for review by including in their notice of appeal
and appellate brief a general request for a new trial. Plaintiffs additionally argued
for the first time that they were not required to file a post-trial motion challenging
a directed verdict, given the directed verdict changed the “tenor” of the remaining
trial, thus making a new trial on all issues appropriate.
¶ 14 Following a hearing on defendant’s motion in limine, the circuit court denied
the motion but invited the parties to propose a certified question pursuant to Rule
308. The circuit court certified the following question for immediate appeal:
“Whether the ruling of the Appellate Court, 2016 IL App (4th) 150843, reversing
the judgment and remanding this case for a new trial requires a trial de novo on all
claims.”
¶ 15 The appellate court granted defendant’s application for an interlocutory appeal
and answered the certified question in the affirmative. 2018 IL App (4th) 170864-
U, ¶ 54 (Crim II). Defendant filed her notice of appeal to this court, which we
granted.
¶ 16 ANALYSIS
¶ 17 Based on the language of the certified question at issue, plaintiffs initially argue
that defendant’s appeal to this court is an impermissible attempt at relitigating the
merits of Crim I by requesting this court to go beyond the specific question and
determine whether a new trial de novo is proper. Plaintiffs argue that our review of
the certified question should be limited to only the question certified by the circuit
court, which, according to plaintiffs, asks the appellate court to provide “guidance
as to the meaning of its ruling in Crim I.” In other words, plaintiffs consider the
certified question to be a request for the appellate court to interpret its prior decision
in order to clarify for the parties what Crim I “intended” or “meant” when it
2015 IL 117242, ¶ 37 (“While waiver is the voluntary relinquishment of a known right, forfeiture is
the failure to timely comply with procedural requirements.”).
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remanded the case. Based on their reading of the certified question, plaintiffs claim
that this court has “no legal basis” to substitute its judgment for that of the appellate
court.
¶ 18 Plaintiffs acknowledge, however, that the scope of our review is broad and not
limited to determining how the circuit court’s question should be decided. This is
so because, when this court accepts an appeal involving a question of law identified
under Rule 308, “the scope of our review is not limited to determining whether the
appellate court answered the certified questions correctly.” Schrock v. Shoemaker,
159 Ill. 2d 533, 537 (1994). Moreover, under Rule 366, this court may “enter any
judgment and make any order that ought to have been given or made, and make any
other and further orders and grant any relief *** that the case may require.” Ill. S.
Ct. R. 366 (eff. Feb. 1, 1994).
¶ 19 Bearing these principles in mind, we initially consider the question that the
circuit court certified to the appellate court. A certified question under Rule 308
permits the discretionary appeal of an otherwise unappealable interlocutory order
of the circuit court where the court “finds that the order involves a question of law
as to which there is a substantial ground for difference of opinion and that an
immediate appeal from the order may materially advance the ultimate termination
of the litigation.” Ill. S. Ct. R. 308(a) (eff. July 1, 2017). Our review of a certified
question under Rule 308 is de novo. Rozsavolgyi v. City of Aurora, 2017 IL 121048,
¶ 21.
¶ 20 The certified question asks whether the ruling of Crim I “requires a trial de novo
on all claims” as a result of the appellate court reversing and remanding the matter
“for such other proceedings as required by the order of [the] court.” The language
of the certified question is purely legal in nature, as it presents a question that can
only be answered by applying relevant legal principles and interpretation of the law
to the legal effect of Crim I’s holding. See Black’s Law Dictionary 1366 (9th ed.
2009) (defining the term “question of law” as an issue “concerning the application
or interpretation of the law” that the court must decide).
¶ 21 Unlike in cases involving improper certified questions, our answer to the
certified question neither depends on the resolution of a host of factual predicates,
nor does answering the certified question depend on an application of the law to the
facts of a specific case, nor does addressing the certified question result in an
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answer that is advisory or provisional. See Rozsavolgyi, 2017 IL 121048, ¶ 21
(citing various cases). In fact, there is no dispute regarding the underlying facts of
the case. Additionally, the certified question does not make an improper request for
a new interpretation as to the meaning or intent of Crim I. If that were the situation,
the certified question would indeed be improper given that, once Crim I issued its
mandate, the appellate court was divested of jurisdiction to take any further action
in that appeal. See PSL Realty Co. v. Granite Investment Co., 86 Ill. 2d 291, 304
(1981) (“The mandate of a court of review is the transmittal of the judgment of that
court to the circuit court, and revests the circuit court with jurisdiction.”). It would
be absurd to permit a certified question to revest the appellate court with jurisdiction
to reexamine the merits of a case previously decided. Rather, the certified question
seeks a legal analysis regarding whether Crim I’s holding “requires a new trial
de novo.” (Emphasis added.) The certified question is no different than a certified
question involving statutory construction (see, e.g., Rosenbach v. Six Flags
Entertainment Corp., 2019 IL 123186, ¶ 14; Rozsavolgyi, 2017 IL 121048, ¶ 6;
Bowman v. Ottney, 2015 IL 119000, ¶ 8) and requests no more of this court, or the
appellate court below, than what reviewing courts are regularly tasked to perform:
Resolve legal questions regarding the effects a prior decision has on a pending case.
See, e.g., Hampton v. Metropolitan Water Reclamation District of Greater
Chicago, 2016 IL 119861, ¶ 6 (answering a certified question concerning the legal
effects a recent United States Supreme Court decision has on Illinois law and the
pending case). It is without doubt that answering the certified question will establish
the necessary parameters of the new trial and, therefore, materially advance the
termination of the litigation, resulting in a reduction of protracted litigation and
unnecessary legal fees if the question goes unanswered. Accordingly, we conclude
that the certified question is a question of law properly certified under Rule 308,
and we will proceed to answer it.
¶ 22 Reviewing the ruling in Crim I, the appellate court in Crim II determined that,
because Crim I issued a general remand without specific instructions, a new trial
should be held on all issues, including the issue of professional negligence. Crim
II, 2018 IL App (4th) 170864-U, ¶ 43. The Crim II court found that the “decisive”
wording of Crim I’s opinion and mandate implied that the entire judgment was
abrogated and the circuit court was to proceed de novo. Id. The appellate court
explained:
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“Our mandate [in Crim I] reversed the trial court’s judgment, and our opinion
ordered a new trial based on the first issue we considered: the directed verdict
on informed consent. We did not limit the issue in the new trial, and we did not
address relevant issues presented to us on appeal. Based on our review of the
mandate and prior opinion, we conclude that a new trial on all issues was
required.” Id. ¶ 52.
For these reasons, the appellate court answered the certified question in the
affirmative. Id. ¶ 44.
¶ 23 In her appeal before this court, defendant takes issue with Crim II’s answer to
the certified question. According to defendant, Crim II’s answer ignores the general
rule that the failure to file a post-trial motion following a jury trial prevents review
of the jury’s verdict, and no new trial could be conducted as to the issue that went
to a jury. Defendant notes that plaintiffs abandoned their statutory right to challenge
the jury’s verdict by failing to file a post-trial motion pursuant to section 2-1202(e),
which requires a party to raise issues in a post-trial motion before raising those
issues on appeal when requesting a new trial. As a result, defendant argues that the
holding in Crim I, which reversed and remanded “for such other proceedings as
required” by the appellate court, could not have encompassed the jury’s verdict
because the only issue before the appellate court was the partial directed verdict on
plaintiffs’ informed consent claim. Therefore, defendant contends that Crim I could
not have revived the professional negligence claim after the 30-day deadline for
filing post-trial motions passed. As such, defendant requests that this court consider
whether the appellate court in Crim II erred in determining that Crim I required a
new trial de novo on all claims.
¶ 24 We find merit in defendant’s argument that the ruling in Crim I could not
require a new trial de novo on all claims due to plaintiffs’ failure to challenge the
jury’s verdict pursuant to the requirements of section 2-1202 of the Code of Civil
Procedure (735 ILCS 5/2-1202 (West 2016)).
¶ 25 Section 2-1202 governs “[p]ost-trial motions in jury cases” and sets out strict
rules for filing such motions in jury trials, stating that “[r]elief desired after trial in
jury cases, *** must be brought in a single post-trial motion.” (Emphasis added.)
735 ILCS 5/2-1202(b) (West 2016). Section 2-1202 further requires that post-trial
motions in jury cases be filed within 30 days after the entry of judgment, and the
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motion “must contain the points relied upon, particularly specifying the grounds in
support thereof, and must state the relief desired, as for example, the entry of a
judgment, the granting of a new trial or other appropriate relief.” 735 ILCS 5/2-
1202(c), (b) (West 2016). Section 2-1202(e) specifies what happens if a party in a
jury case fails to file a post-trial motion:
“(e) Any party who fails to seek a new trial in his or her post-trial motion,
either conditionally or unconditionally, as herein provided, waives the right to
apply for a new trial, except in cases in which the jury has failed to reach a
verdict.” 735 ILCS 5/2-1202(e) (West 2016).
¶ 26 There are two exceptions where a litigant need not file a post-trial motion to
preserve his or her appeal following a jury trial. First, under section 2-1202(e),
forfeiture does not occur where the jury has failed to reach a verdict. In this case,
the jury reached a verdict, so this statutory exception does not apply. Second,
interpreting this statutory exception, appellate courts have also carved out a
“narrow exception” for directed verdicts, so that it is also not necessary for a party
to file a post-trial motion after the circuit court directs a verdict on all issues. See,
e.g., Arient v. Shaik, 2015 IL App (1st) 133969, ¶ 29; Garcia v. Seneca Nursing
Home, 2011 IL App (1st) 103085, ¶ 21 (it is not “necessary to file a posttrial motion
following entry of a directed verdict in a jury case to preserve issues for appeal”
(citing Keen v. Davis, 38 Ill. 2d 280, 281-82 (1967)).
¶ 27 The second exception to section 2-1202(e) originated in Keen, 38 Ill. 2d at 281,
where this court resolved a dispute among the appellate districts regarding whether
it is necessary to file a post-trial motion and preserve issues for appeal following
an entry of a directed verdict in a jury case. The Keen court held that a post-trial
motion need not be filed following a directed verdict as a prerequisite to appeal. Id.
at 282. The Keen court reasoned:
“ ‘When a judge directs a verdict at any stage of the trial, in effect, he has
removed the case from the realm of the rules relating to jury cases and the rules
applicable to bench trials should apply. It seems illogical to require a party to
address the same arguments to the same judge on the identical questions before
proceeding to review by an appellate tribunal.’ ” Id. at 281-82 (quoting Larson
v. Harris, 77 Ill. App. 2d 430, 434 (1966)).
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¶ 28 Citing Keen’s exception, plaintiffs argue that, since the circuit court entered a
directed verdict on their informed consent claim, “they were under no obligation to
file a futile and ultimately meaningless post-trial motion” as to the jury’s verdict on
their remaining claim. Therefore, plaintiffs contend that the circuit court did not err
in denying defendant’s motion in limine based on Crim II’s holding.
¶ 29 Plaintiffs misinterpret this court’s holding in Keen. In Keen, the circuit court
entered a directed verdict that resolved the entire case. A jury’s verdict was not at
issue. For this reason, we found that it was illogical for the circuit court to consider
the same arguments it had heard prior to issuing its directed verdict. As stated
above, when the circuit court removed the entire case from the jury, the rules
governing jury cases ceased to control. Id. Here, unlike in Keen, after the circuit
court entered a partial directed verdict, the trial on the remaining issue regarding
professional negligence continued, resulting in a jury’s verdict in favor of
defendant. Thus, at no time did the circuit court remove the entire case from the
jury and enter judgment on its own. Instead, the rules relating to jury cases
continued to control after the circuit court’s partial directed verdict.
¶ 30 Post-Keen decisions from this court in Robbins v. Professional Construction
Co., 72 Ill. 2d 215, 224 (1978), and in Mohn v. Posegate, 184 Ill. 2d 540 (1998),
provide further support for our interpretation of section 2-1202 that, when a case
proceeds to a jury’s verdict, a litigant must file a post-trial motion pursuant to
section 2-1202 in order to challenge the jury’s verdict on appeal.
¶ 31 In Robbins, this court dealt with a circuit court order that set aside in part a
general verdict and granted the plaintiff a new trial on the question of damages.
Robbins, 72 Ill. 2d at 219. In that case, the jury returned a verdict for the plaintiff
in the amount of $25,000. Id. The defendants filed a post-trial motion requesting
judgment notwithstanding the verdict but did not alternatively request a new trial if
their motion for judgment notwithstanding the verdict were denied. Id. The plaintiff
filed a motion for a new trial on damages only or, alternatively, for a new trial on
all issues. Id. The circuit court granted the plaintiff’s motion for a new trial on
damages only and denied the defendants’ motion. Id. In the second trial for
damages, the jury awarded plaintiff $120,000. Id. at 220. The circuit court entered
judgment on the verdict. Id. The defendants then filed a post-trial motion requesting
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a new trial on all issues, including liability. Id. On appeal, the Robbins court found
that Keen was inapposite in this situation, reasoning that,
“[w]here the jury already has reached a general verdict in favor of plaintiff,
setting aside that verdict in favor of a new trial on the question of damages does
not remove the question of liability from the province of the jury, because the
first jury’s verdict on that question remains intact.” Id. at 224.
As such, this court held that Keen’s “narrow exception” to the post-trial motion rule
was not available to the defendants who forfeited their right to request a new trial
on the question of liability following the jury’s verdict by failing to follow the
statutory requirement of filing a post-trial motion. Id. at 223-25.
¶ 32 In Mohn, this court held that filing a post-trial motion following summary
judgment is unnecessary to preserve an issue for appeal. Mohn, 184 Ill. 2d at 544.
Comparing summary judgment to a directed verdict, this court stated:
“In the same way that the jury does not determine the verdict when it is directed,
the jury makes no factual determination concerning the issue or issues disposed
of by entry of summary judgment before trial of the case upon the remaining
undetermined issues. Thus, we conclude that, as in a nonjury case in which a
post-judgment motion need not be filed, a party need not raise in a post-trial
motion any issue concerning the pretrial entry of summary judgment as to part
of a cause of action in order to preserve the issue for review.” Id. at 546-47.
¶ 33 As Mohn demonstrates, the difference between the situations exemplified by
Keen and Robbins, concerning whether a post-trial motion is required to preserve
alleged error, turns on the question of whether the jury rendered a decision on an
issue being challenged before a reviewing court. That is precisely the situation here,
where plaintiffs request that the new trial should be conducted on an issue decided
by a jury. Because the jury made a factual determination on the issue of professional
negligence and the circuit court entered judgment based on that determination,
plaintiffs’ reliance on cases that follow Keen and its progeny in support of their
argument that no post-trial motion is required is misplaced. Therefore, without
filing a post-trial motion as required by section 2-1202, plaintiffs forfeited their
right to request a new trial on the issue of professional negligence.
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¶ 34 There are sound policy reasons behind the requirement that a litigant file a post-
trial motion following a jury case. First, and foremost, this court has long favored
the correction of errors at the circuit court level. People v. Marker, 233 Ill. 2d 158,
171-72 (2009) (citing People v. Heil, 71 Ill. 2d 458, 461 (1978)). The statutory
requirement meets our general rule by allowing circuit court judges—those most
familiar with the evidence and the witnesses—an opportunity to review their ruling
and decide if a new trial or a judgment notwithstanding the verdict is appropriate.
Keen, 38 Ill. 2d at 281. Filing a post-trial motion following a jury’s verdict also
allows a reviewing court to ascertain from the record whether the circuit court was
afforded an adequate opportunity to reassess any allegedly erroneous rulings that
affected the case, including the jury’s verdict. Id. Further, requiring the litigants to
specify the grounds in support of their contentions in a section 2-1202 motion
prevents the litigant from stating mere general objections or, as in this case,
subsequently raising on appeal arguments, which the circuit court judge was never
given an opportunity to consider, i.e., whether a partial directed verdict materially
altered the tenor of the remaining trial. Brown v. Decatur Memorial Hospital, 83
Ill. 2d 344, 349-50 (1980). Additionally, a post-trial motion eliminates uncertainty
on appeal as to whether the jury’s verdict is at dispute and allows an opposing party
the opportunity to respond. 1010 Lake Shore Ass’n v. Deutsche Bank National Trust
Co., 2015 IL 118372, ¶ 14.
¶ 35 Based on all of the foregoing, we find that neither exception to section 2-1202
applies. The plain language of the statute and case law interpreting section 2-1202,
requires a litigant to file a post-trial motion in order to challenge the jury’s verdict
even when the circuit court enters a partial directed verdict as to other issues in the
case. The failure by plaintiffs to file a post-trial motion challenging the jury’s
verdict deprived the circuit court of an opportunity to correct any trial errors
involving the jury’s verdict and undermined any notion of fairness to defendant on
appeal. Moreover, as a result, plaintiffs failed to preserve any challenge to the jury’s
verdict for appellate review. Therefore, it is no surprise that the appellate court in
Crim I never discussed forfeiture rules in its opinion. The procedural methods
required for preserving questions for review were clearly not complied with by the
failure to file a proper post-trial motion challenging the jury’s verdict.
¶ 36 Plaintiffs attempt to circumvent section 2-1202’s requirement by arguing that
the directed verdict on their informed consent claim materially “altered the tenor”
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of the remaining case and affected the jury’s verdict. Plaintiffs also argued in both
their brief to this court and at oral argument that “they were under no obligation to
file a futile and ultimately meaningless post-trial motion.” Plaintiffs point to the
circuit court’s instruction to the jury to disregard all evidence pertaining to
negligence prior to delivery, which, according to plaintiffs, tainted the remaining
portion of their case because some of the evidence regarding the informed consent
claim was relevant to the issue of professional negligence during the delivery of
Collin. Plaintiffs further assert that they presented evidence that defendant was
surprised by Collin’s size and was unprepared for delivering a macrosomic infant
and that her failure to recognize his size before delivery led to complications during
delivery. In support of their argument, plaintiffs cite a single case, Keiser-Long v.
Owens, 2015 IL App (4th) 140612, ¶ 26. However, Keiser-Long merely followed
this court’s decision in Keen and did not involve a situation where the appellate
court found that a partially directed verdict “tainted” the jury’s verdict. 2 We find
no other authority that supports plaintiffs’ argument.
¶ 37 Even assuming the two claims were intertwined, the trouble with plaintiffs’
argument is the simple fact they never filed a post-trial motion pursuant to section
2-1202. Plaintiffs are essentially arguing that the circuit court erred by allowing the
jury trial to continue after it entered the partial directed verdict. However, the record
is devoid of plaintiffs making any argument before the circuit court that the
informed consent claim was closely intertwined with the professional negligence
claim. It was not until the case was transmitted back to circuit court on remand did
plaintiffs argue that the jury’s verdict should be set aside.
¶ 38 Plaintiffs’ arguments before this court highlight exactly the reason why it is
incumbent upon a party to raise their concerns of trial error at the trial level and
allow the circuit court the opportunity to address those errors in the first instance.
Had the circuit court been aware of the possibility that the directed verdict may
have altered the jury’s deliberation to such an extent that the jury’s verdict should
be set aside, the circuit court would have been in the best position to address those
concerns. Instead, plaintiffs chose not to exercise their right to challenge the jury’s
verdict pursuant to section 2-1202. As a result, plaintiffs deprived the circuit court
2
We note that ITLA’s amicus brief in support of plaintiffs urges this court to “ignore” Keiser-
Long.
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of the opportunity to address and correct any perceived trial errors. Simply put, to
the extent plaintiffs believed the evidence was intertwined and the directed verdict
materially altered the remainder of the jury trial, plaintiffs had the obligation to
make that argument before the circuit court in order to preserve any possible trial
error for review.
¶ 39 Next, we reject plaintiffs’ argument that their notice of appeal and initial
appellate brief filed in Crim I preserved all issues of trial error for review. For the
same reasons as stated above, plaintiffs’ contention lies in direct conflict with the
statutory requirements of section 2-1202. Despite citing the general principle that
courts should liberally construe notices of appeal, plaintiffs provide no authority,
and we find none, for the proposition that a notice of appeal or an appellate brief
removes the statutory requirement of section 2-1202. If we were to adopt plaintiffs’
argument, the statutory requirements in section 2-1202 would become
meaningless—an outcome we are compelled to avoid. Van Dyke v. White, 2019 IL
121452, ¶ 46 (“No part of a statute should be rendered meaningless or
superfluous.”). Moreover, we find little support that plaintiffs raised any challenge
to the jury’s verdict in the initial appeal. In fact, as noted above, plaintiffs’
introductory paragraph to their initial brief explicitly states that “this appeal is not
based upon the verdict of a jury.” Even if plaintiffs’ notice of appeal and initial
brief challenged the jury’s verdict, which is not the situation, nowhere do plaintiffs
make a clear and well-defined argument that the jury’s verdict was contrary to the
manifest weight of the evidence. Snelson v. Kamm, 204 Ill. 2d 1, 35 (2003) (“[A]
reviewing court may reverse a jury verdict only if it is against the manifest weight
of the evidence.”). Plaintiffs’ reliance on any vague notion that they challenged the
jury’s verdict fails to comply with Illinois Supreme Court Rule 341(h) (eff. May
25, 2018)). See, e.g., Vancura v. Katris, 238 Ill. 2d 352, 370 (2010) (“Both
argument and citation to relevant authority are required. An issue that is merely
listed or included in a vague allegation of error is not ‘argued’ and will not satisfy
the requirements of the rule.”).
¶ 40 Lastly, plaintiffs argue that, because the appellate court in Crim I issued a
general remand, they were automatically entitled to a new trial on all issues. For
support, plaintiffs cite multiple cases for the proposition that, “[w]hen a court of
review does not determine the merits of a case but merely reverses and remands
without specific directions, the judgment of the court below is entirely abrogated
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and the cause stands as if no trial had occurred.” People ex rel. Borelli v. Sain, 16
Ill. 2d 321, 326 (1959) (citing Kinney v. Lindgren, 373 Ill. 415 (1940)); see also
Rigdon v. More, 242 Ill. 256 (1909); Ziolkowski v. Continental Casualty Co., 365
Ill. 594, 600 (1937). These cases however have no relevance or applicability to the
situation here. That is so because, when the appellate court in Crim I found that the
circuit court erred in granting defendant’s motion for a directed verdict on the issue
of informed consent, the appellate court ruled on the merits of the case before it.
Therefore, the appellate court’s mandate could not remand the matter for a new trial
on an issue never raised and not considered.
¶ 41 Accordingly, the appellate court in Crim II erred by answering the certified
question in the affirmative. Further, based on our finding, we hold that the circuit
court erred in denying defendant’s motion in limine, which sought to limit the new
trial to a trial on plaintiffs’ informed consent claim.
¶ 42 CONCLUSION
¶ 43 For the foregoing reasons, we answer the certified question in the negative, and
we reverse the judgment of the appellate court. We also reverse the circuit court’s
order denying defendant’s motion in limine and remand the matter to the circuit
court in order to conduct a new trial on the issue of informed consent.
¶ 44 Certified question answered.
¶ 45 Reversed and remanded.
¶ 46 CHIEF JUSTICE ANNE M. BURKE, specially concurring:
¶ 47 I agree with the majority that the judgment of the appellate court must be
reversed. However, I reach that result for different reasons and, therefore, specially
concur.
¶ 48 The plaintiff parents filed a medical malpractice action against the defendant
doctor to recover for injuries relating to the birth of their child. At a jury trial,
plaintiffs pursued two claims: (1) prior to delivery, defendant did not obtain the
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mother’s informed consent to perform a natural birth when the baby’s size
presented risks associated with such a delivery and, (2) during the delivery itself,
defendant’s actions were negligent and, as a result, the child was injured. At the
close of plaintiffs’ case-in-chief, on September 17, 2015, the trial court granted
defendant’s motion for a directed verdict on the informed consent claim but
permitted the negligent delivery claim to go forward. At the close of trial, the jury
returned a verdict in favor of defendant, and judgment was rendered on that verdict
on September 23, 2015.
¶ 49 Plaintiffs filed a timely notice of appeal that referenced both the September 17
and September 23 orders. However, in the appellate court, plaintiffs expressly
abandoned any objection to the September 23 order, stating in their opening brief
that “this appeal is not based upon the verdict of the jury.” Instead, plaintiffs
explained that the “appeal reviews the trial court’s order granting a partial directed
verdict in favor of the Defendant on the Plaintiffs’ theory of negligence based upon
the doctrine of informed consent.”
¶ 50 The appellate court agreed with plaintiffs that the trial court had “erred by
granting a partial directed verdict” on the claim of lack of informed consent. Crim
v. Dietrich, 2016 IL App (4th) 150843, ¶ 48 (Crim I). The appellate court did not,
in any respect, address the claim of negligent delivery. At the conclusion of its
opinion, the appellate court stated that the “trial court’s judgment” was “[r]eversed”
and the “cause remanded.” Id. ¶¶ 51-52. The court’s mandate stated that “the order
on appeal from the circuit court be REVERSED and the cause be REMANDED to
the Circuit Court for the Eighth Judicial Circuit Adams County, for such other
proceedings as required by order of this court.”
¶ 51 On remand in the trial court, defendant filed a motion in limine to bar the
presentation of any evidence relating to plaintiffs’ negligent delivery claim.
Defendant maintained that, because the September 23, 2015, judgment had not been
reversed by the appellate court, the remand proceedings should be limited solely to
a new trial on the informed consent claim. Plaintiffs, in response, argued that the
appellate court had, in fact, reversed the judgment order of September 23, 2015,
and, therefore, they were entitled to a trial de novo on both claims. The trial court
denied defendant’s motion in limine but certified the following question under
Illinois Supreme Court Rule 308 (eff. July 1, 2017): “Whether the ruling of the
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Appellate Court, 2016 IL App (4th) 150843, reversing the judgment and remanding
this case for a new trial requires a trial de novo on all claims.” The appellate court
answered this question “yes.” 2018 IL App (4th) 170864-U (Crim II). This appeal
followed.
¶ 52 At first glance, it would seem there should have been no question as to how the
trial court should have proceeded on remand following the appellate court’s
decision in Crim I. After all, the only claim that was addressed by the appellate
court in Crim I was the informed consent claim. The court did not address the
negligent delivery claim, let alone find any error in the verdict or judgment rendered
in defendant’s favor on that claim.
¶ 53 A question arose, however, because plaintiffs contended that, under a long-
standing common-law rule, the appellate court’s decision in Crim I had to be read
as reversing the September 23, 2015, order. This rule, which appears in a number
of decisions, states that, “[i]f a judgment in an ordinary suit at law in which the
parties are entitled to a jury trial is reversed for errors intervening prior to the entry
of the judgment and the cause is remanded generally, the parties are entitled to a
trial de novo.” Roggenbuck v. Breuhaus, 330 Ill. 294, 300 (1928); see also, e.g.,
Ziolkowski v. Continental Casualty Co., 365 Ill. 594, 599 (1937); Rigdon v. More,
242 Ill. 256, 259 (1909). Applying this rule, plaintiffs maintained that when the trial
court granted the directed verdict on September 17, 2015, it committed a trial error
that occurred “prior to the entry of the judgment” on September 23, 2015, and
further, that the appellate court in Crim I had reversed the September 23 order on
the basis of that error. Although plaintiffs acknowledged they could not find a
“specific case with a directed verdict” that had applied the common-law rule in this
way, they nevertheless maintained the rule should be applied in these
circumstances. Plaintiffs also noted that the appellate court’s reversal and
remandment to the trial court was a general one, with no special limiting
instructions. Accordingly, plaintiffs argued they were entitled to a trial de novo on
both the informed consent and negligent delivery claims.
¶ 54 The legal issue presented by the certified question in this case is whether a
mistaken partial directed verdict is an error “prior to the entry of judgment” within
the meaning of cases such as Roggenbuck. This is how the appellate court in Crim
II approached the certified question. Crim II cited the rule relied upon by plaintiffs
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and, based on that rule, concluded the mandate in Crim I necessarily reversed the
judgment entered by the trial court on September 23, 2015. See Crim II, 2018 IL
App (4th) 170864-U, ¶¶ 38-44. I disagree.
¶ 55 Plaintiffs’ position in this case rests on a misunderstanding of the nature of
directed verdicts. A judgment “ ‘is a court’s official decision with respect to the
rights and obligations of the parties to a lawsuit.’ ” People ex rel. Department of
Public Aid v. Smith, 212 Ill. 2d 389, 398 (2004) (quoting In re Marriage of Logston,
103 Ill. 2d 266, 277 (1984)); 735 ILCS 5/2-1301(a) (West 2018). When a trial court
grants a motion for directed verdict on a claim, it removes the claim completely
from the “province of the jury” (Mohn v. Posegate, 184 Ill. 2d 540, 546 (1998)) and
determines the rights and obligations of the parties with respect to that claim. In
other words, a directed verdict is a judgment rendered by the trial court as a matter
of law. An erroneous directed verdict is not a trial error or “an error prior to the
entry of judgment.” Rather, a directed verdict is itself a judgment. 3
¶ 56 When the trial court in this case granted defendant’s motion for a directed
verdict on the informed consent claim on September 17, 2015, it rendered a
judgment on that claim as a matter of law. A second judgment was rendered on the
jury’s verdict on September 23, 2015. See 735 ILCS 5/2-1301(a) (West 2018)
(“More than one judgment may be rendered in the same cause.”). When the
appellate court in Crim I stated that it was reversing the “judgment” of the trial
court, it was necessarily referring to the directed verdict since the only matter the
appellate court addressed was the informed consent claim. There is no basis for
reading the appellate court’s mandate as going beyond that. Accordingly, I would
answer the certified question “no.” For these reasons, I specially concur.
3
The Federal Rules of Civil Procedure make this point explicitly. Federal Rule of Civil
Procedure 50(a) has replaced the “misleading” and “anachronis[tic]” term “directed verdict” with
the term “ ‘judgment as a matter of law.’ ” Fed. R. Civ. P. 50(a) (Advisory Committee Notes—1991
Amendment). Notably, although Illinois retains the “directed verdict” terminology, our practice is
modeled after the federal rules. See Ill. S. Ct. R. 240, Committee Comments; see also, generally,
Renée Lettow Lerner, The Rise of Directed Verdict: Jury Power in Civil Cases Before the Federal
Rules of 1938, 81 Geo. Wash. L. Rev. 448, 456 (2013).
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¶ 57 JUSTICE KILBRIDE, dissenting:
¶ 58 In my view, the majority errs in answering the certified question. I believe the
petition for leave to appeal was improvidently granted and this is not a proper
appeal under Illinois Supreme Court Rule 308 (eff. July 1, 2017). I also disagree
with the majority’s decision on the merits because it is inconsistent with this court’s
rules and case law and mistakenly allows the legislature to restrict the authority of
reviewing courts to grant relief on forfeited claims. Accordingly, I respectfully
dissent.
¶ 59 I. The Petition for Leave to Appeal Was Improvidently Granted
¶ 60 This court should dismiss this appeal as improvidently granted. Illinois
Supreme Court Rule 315(a) (eff. Apr. 1, 2018) sets forth the following “character
of reasons” that will be considered in deciding whether to allow a petition for leave
to appeal:
“[T]he general importance of the question presented; the existence of a conflict
between the decision sought to be reviewed and a decision of the Supreme
Court, or of another division of the Appellate Court; the need for the exercise
of the Supreme Court’s supervisory authority; and the final or interlocutory
character of the judgment sought to be reviewed.”
¶ 61 Here, the judgment sought to be reviewed was interlocutory. The appellate
court’s unpublished order did not create any conflict with this court or with another
division of the appellate court, nor did it address a question of general importance.
The trial court certified the following question: “Whether the ruling of the appellate
court, 2016 IL App (4th) 150843, reversing the judgment and remanding this case
for a new trial requires a trial de novo on all claims.” This is an entirely case-
specific question. It is important to the parties in the case, but it is not of general
importance. Finally, there is no need for the exercise of our supervisory authority.
The certified question was directed to the very court that issued the mandate in
question, and that court has provided an answer. This case is the quintessential
example of the type of case this court will not review under Rule 315. Accordingly,
I would dismiss the appeal as improvidently granted.
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¶ 62 II. This Is Not a Proper Rule 308 Appeal
¶ 63 A. The Proper Analysis
¶ 64 If the court does not dismiss the appeal as improvidently granted, it should hold
that this was an improper Rule 308 appeal, vacate the appellate court’s order, and
remand the case to the trial court. The trial court’s certified question was not a
proper use of Rule 308.
¶ 65 This court has been very clear about Rule 308’s requirements for a proper
certified question. Rule 308(a) provides, inter alia, that,
“[w]hen the trial court, in making an interlocutory order not otherwise
appealable, finds that the order involves a question of law as to which there is
substantial ground for difference of opinion and that an immediate appeal from
the order may materially advance the ultimate termination of the litigation, the
court shall so state in writing, identifying the question of law involved.” Ill. S.
Ct. R. 308(a) (eff. July 1, 2017).
¶ 66 In Rozsavolgyi v. City of Aurora, 2017 IL 121048, ¶ 21, this court explained
that certified questions are questions of law and they may not seek an application
of law to the facts of a specific case. This court further explained that, if the answer
to the question is dependent upon the underlying facts of a case, the certified
question is improper. Rozsavolgyi, 2017 IL 121048, ¶ 21. This court also stated that
Rule 308 should be reserved for exceptional circumstances. Rozsavolgyi, 2017 IL
121048, ¶ 21. Further, there must be substantial grounds for disagreement on the
question of law. This court explained that
“[t]he substantial grounds for difference of opinion prong in Rule 308 has
been satisfied in instances where the question of law had not been directly
addressed by the appellate or supreme court (In re Estate of Kleine, 2015 IL
App (2d) 150063, ¶ 14) or where there is a conflict between appellate districts
or with the Illinois Supreme Court (Johannsen v. General Foods Corp., 146 Ill.
App. 3d 296, 298-99 (1986)).” Rozsavolgyi, 2017 IL 121048, ¶ 32.
The court went on to explain that, if there was applicable appellate court case law
on the issue, then it was “questionable at best” whether the certified question was
proper. Rozsavolgyi, 2017 IL 121048, ¶ 32; see also Hampton v. Metropolitan
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Water Reclamation District, 2016 IL 119861, ¶ 39 (Burke, J., specially concurring,
joined by Freeman and Kilbride, JJ.) (noting that a certified question is improper
when there is “black letter law” on an issue).
¶ 67 It is obvious, then, that the certified question here is improper. The question
asked what the mandate in the previous appeal meant for these parties. It is an
entirely case-specific question that could not bear on factual situations other than
the one before the court.
¶ 68 The question did not ask the court to resolve a pure question of law involving
substantial grounds for disagreement. Defendant argued in the trial court that the
dispositive fact was that plaintiffs had not filed a posttrial motion in Crim v.
Dietrich, 2016 IL App (4th) 150843 (Crim I). Accordingly, defendant argued that
the new trial should be limited to the informed consent count. Plaintiffs argued that
the dispositive fact was that the appellate court had issued a general remand.
Plaintiffs contended this meant that the new trial should be on both counts. Both
parties cited cases in support of their positions. The parties asked the court to decide
the case based on the cited law.
¶ 69 When the case went up to the appellate court, the parties made the same
arguments they did in the trial court, and the appellate court agreed with plaintiffs.
In other words, the appellate court did not answer a pure question of law that would
allow the case to move forward. Rather, it simply applied the law for the trial court.
Defendant then appealed to this court, the parties made the same arguments, and a
majority of this court has ruled that defendant’s position is correct. But, again, no
pure question of law has been answered. At all three levels, the parties presented
their arguments and case law in support, and the courts decided how to apply that
law to this case. This is what courts do in every case. If this is a proper use of Rule
308, it is hard to see how Rule 308 would be limited to “exceptional
circumstances.”
¶ 70 B. The Majority’s Analysis
¶ 71 The majority first claims that, if the certified question were asking the appellate
court to clarify what it “intended” or “meant” when it issued its mandate, then the
certified question would be improper. Supra ¶¶ 17-21. According to the majority,
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this would be an improper attempt to revest the appellate court with jurisdiction to
reconsider the merits of a case previously decided. Supra ¶ 21. There is evidence
in the record that this is exactly what the parties assumed was the purpose of the
certified question. When agreeing to the Rule 308 appeal, plaintiffs’ counsel stated
that, “I think that there’s going to need to be a 308 appeal, an interlocutory appeal
so that the Appellate Court can tell us what it wanted when it issued its order.” 4
¶ 72 The majority claims that this is not what the certified question was asking.
According to the majority, the certified question was proper because it sought to
ascertain the legal effect of Crim I’s holding, and this is a question that can be
answered only by applying “relevant legal principles and interpretation of the law.”
Supra ¶ 20. In Rozsavolgyi, however, this court held Rule 308 “should be reserved
for exceptional circumstances.” Rozsavolgyi, 2017 IL 121048, ¶ 21. I cannot
imagine that what we meant by “exceptional circumstances” was a court simply
being asked to apply or interpret the law.
¶ 73 The majority further contends that the certified question is no different from
one involving statutory construction and “requests no more of this court, or the
appellate court below, than what reviewing courts are regularly tasked to perform:
Resolve legal questions regarding the effects a prior decision has on a pending
case.” 5 Supra ¶ 21. The majority cites Hampton, 2016 IL 119861, ¶ 6, for this
proposition. Several problems are evident. First, construing a mandate is nothing
like construing a statute or an opinion. Opinions establish controlling precedent for
4
It also seems logical to assume that this was the whole point of the certified question. The
appellate court was in no better position than the trial court to apply the black letter law that both
sides relied on. The only thing the appellate court could do that the trial court could not was to
explain what it intended when it remanded the case. Nevertheless, the appellate court did not give
any such insight and just applied the rules for interpreting mandates.
5
The majority insists that answering the certified question does not require this court to apply
the law to the facts of this case. Supra ¶ 21. It does not take long for this assertion to crumble, as the
majority’s entire analysis involves applying law to the facts of this case. See, e.g., supra ¶ 33
(“Because the jury made a factual determination on the issue of professional negligence and the
circuit court entered judgment based on that determination, plaintiffs’ reliance on cases that follow
Keen and its progeny in support of their argument that no posttrial motion is required is misplaced.”);
supra ¶ 37 (“the record is devoid of plaintiffs making any argument before the circuit court that the
informed consent claim was closely intertwined with the professional negligence claim”); supra
¶ 39 (“we find little support that plaintiffs raised any challenge to the jury’s verdict in the initial
appeal”).
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future cases. Statutes have general applicability and may be construed without
regard to the facts of a particular case. Indeed, they must be construed without
regard to the facts of the underlying case for the certified question to be proper. In
De Bouse v. Bayer AG, 235 Ill. 2d 544, 556-57 (2009), this court considered a
certified question arising under the Consumer Fraud and Deceptive Business
Practices Act (815 ILCS 505/1 et seq. (West 2004)). There was some confusion as
to whether the certified question was asking about the conduct of defendants in
general, or about the defendants in the specific case before the court. De Bouse, 235
Ill. 2d at 557. This court explained that, if the question was referring to the
defendants in the case before the court, the question was improper. However, this
court determined that the question was asking about the conduct of defendants in
general and therefore chose to answer the question. De Bouse, 235 Ill. 2d at 557.
¶ 74 A mandate is, by its very nature, specific to the case. It is relevant only to the
parties in the case before the court. This question was asking what a specific
mandate meant for the specific parties before the court. Additionally, the primary
goal of statutory construction is to ascertain and give effect to the intent of the
drafters. In re Michael D., 2015 IL 119178, ¶ 9. Here, the majority holds that any
attempt to ascertain the intent of the court that issued the mandate would be
improper. Supra ¶ 21.
¶ 75 Finally, this case is nothing like Hampton. Indeed, that case highlights the
problem with the certified question in this case. In Hampton, the trial court certified
the question “ ‘Does Arkansas Game and Fish Commission v. U.S.[,] 133 S. Ct. 511(2012), overrule the Illinois Supreme Court’s holding in People ex rel. Pratt v.
Rosenfield, 399 Ill. 247 (1948)[,] that temporary flooding is not a taking?’ ”
Hampton, 2016 IL 119861, ¶ 1. There, the trial court believed that, before it could
proceed, it needed to know whether the relevant precedent from this court was still
good law. The certified question was a pure question of law that could be answered
without reference to the underlying case. Here, by contrast, the question was asking
what the court’s mandate in the previous appeal meant for the parties in this specific
case. The trial court, however, had all the law it needed to resolve this question and
to rule on the motion in limine. The majority’s assertion that a proper use of Rule
308 is to determine the effects that previous decisions have on the pending case
(supra ¶ 21) contradicts this court’s prior case law on Rule 308 (see, e.g.,
Rozsavolgyi, 2017 IL 121048, ¶ 21).
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¶ 76 In my view, the majority also ignores the “substantial grounds for
disagreement” requirement. As noted above, this court has found substantial
grounds for disagreement when there is a conflict between the appellate court
districts or between the appellate court and this court or when the question has never
been addressed by the appellate court or this court. In those scenarios, the appellate
court clarifies the law for the trial court. Those criteria do not apply here, however.
Of course, no court has ever addressed what the mandate in Crim I means, nor will
any court ever address that question again. The question is entirely case-specific.
The appellate court did not clarify a point of contested law, and neither does the
majority. Both the appellate court and the majority simply apply established law to
this case.
¶ 77 Again, we said in Rozsavolgyi that, when there is applicable appellate case law,
“it is questionable at best whether a substantial difference of opinion exists so as to
support certification of this question.” Rozsavolgyi, 2017 IL 121048, ¶ 32; see also
Hampton, 2016 IL 119861 (2016), ¶ 39 (Burke, J., specially concurring, joined by
Freeman and Kilbride, JJ.) (noting that when there is “black letter law” on an issue,
a certified question is improper). The appellate court relied on the rule that, when a
case is remanded with directions to proceed in conformity with the opinion, then
the trial court should examine the opinion to determine how to proceed. See Crim
v. Dietrich, 2018 IL App (4th) 170864-U, ¶ 40 (Crim II) (citing Clemons v.
Mechanical Devices Co., 202 Ill. 2d 344, 353 (2002)). This is a case-specific
inquiry, and no general rule of law can be set forth. Accordingly, I would decline
to answer the certified question.
¶ 78 III. Merits
¶ 79 For the reasons set forth above, I would not answer the certified question.
Nevertheless, I will respond to the majority’s analysis because I believe it rests
upon a fundamental error, confusing a party’s forfeiture of an argument with a
reviewing court’s power to grant relief.
¶ 80 The majority states that it finds “merit in defendant’s argument that the ruling
in Crim I could not require a new trial de novo on all claims due to plaintiffs’ failure
to challenge the jury’s verdict pursuant to the requirements of section 2-1202 of the
Code of Civil Procedure (735 ILCS 5/2-1202 (West 2016)).” (Emphasis added.).
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Supra ¶ 24. The majority acknowledges, however, that section 2-1202 is merely a
forfeiture statute. Supra ¶ 12 n.1. The statute does not purport to limit the appellate
court’s jurisdiction, nor could it. As the appellate court observed in In re Marriage
of Lentz, 73 Ill. App. 3d 93, 95-96 (1979):
“The foregoing constitutional provisions and the decisions of the supreme
court in People ex rel. Stamos v. Jones (1968), 40 Ill. 2d 62, 237 N.E.2d 495,
and People v. Taylor (1971), 50 Ill. 2d 136, 277 N.E.2d 878, make clear that
the legislature no longer has power to determine the jurisdiction of the appellate
court. In People ex rel. Stamos v. Jones, the court held invalid section 121-6(b)
of the then existing Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1967,
ch. 38, par. 121-6(b)), purporting to prohibit the stay of a sentence for the
conviction of a forcible felony. The rationale of the decision was that the
Judicial Article of 1962 ‘placed responsibility for rules governing appeal in the
Supreme Court, and not in the General Assembly’ (40 Ill. 2d 62, 66, 237 N.E.2d
495, 498). In Taylor, the court reiterated that the legislature had no right to
participate in determining the jurisdiction of the appellate court to entertain
appeals from the circuit court. Taylor held invalid the then existing section 109-
3(e) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1967, ch. 38,
par. 109-3(e)) purporting to make unappealable an order suppressing evidence
made at preliminary hearing.”
¶ 81 Section 2-1202 is merely a forfeiture statute, and it does not restrict the
appellate court’s power to grant relief. As this court has observed many times,
forfeiture is a limitation on the parties and not upon the jurisdiction of a reviewing
court. See, e.g., Klaine v. Southern Illinois Hospital Services, 2016 IL 118217, ¶ 41
(noting that forfeiture is a limitation on the parties and not on the court and
explaining that we may “overlook any forfeiture in the interest of maintaining a
sound and uniform body of precedent”).
¶ 82 Defendant claims that forfeiture for failure to file a posttrial motion is an
exception to the above rule and that a court cannot overlook a forfeiture where the
General Assembly has barred litigants from obtaining relief in a court of review.
Defendant goes so far as to say that no Illinois court has ever determined that it was
authorized to order a new trial of a jury’s verdict in the absence of a posttrial
motion. In support, defendant cites American National Bank & Trust Co. of
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Chicago v. J&G Restaurant, Inc., 94 Ill. App. 3d 318, 319 (1981). In that case, the
defendant failed to file a posttrial motion following a jury trial, and the appellate
court stated that, because of the defendant’s forfeiture, it was “legally unable to
decide any of the substantive issues raised on appeal.” American National Bank, 94
Ill. App. 3d at 319.
¶ 83 Defendant is incorrect. In Schutzenhofer v. Granite City Steel Co., 93 Ill. 2d 208(1982), this court awarded the defendant a new trial even though the defendant had
not filed a posttrial motion seeking a new trial. The plaintiff had obtained a pretrial
partial summary judgment on the issue of whether defendant was a common carrier
engaged in interstate commerce. Schutzenhofer, 93 Ill. 2d at 210. Defendant had
denied its interstate status and argued that the plaintiff’s exclusive remedy was in
the Workmen’s Compensation Act (Ill. Rev. Stat. 1975, ch 48, ¶ 138 et seq.).
Defendant raised this issue at several points in the pretrial process and during the
trial and later raised the issue in a motion for judgment notwithstanding the verdict.
Schutzenhofer, 93 Ill. 2d at 210. The defendant did not file a motion for a new trial,
and it conceded in its appellate court brief that it had waived any right to a
remandment or a new trial on any issue. See Schutzenhofer v. Granite City Steel
Co., 101 Ill. App. 3d 683, 686-87 (1981). This court acknowledged that the
defendant was seeking only a judgment as a matter of law that it was not engaged
in interstate commerce. Schutzenhofer, 93 Ill. 2d at 213. This court explained,
nevertheless:
“[T]he scope of our review is not confined merely to the issues preserved for
appeal. (See Inolex Corp. v. Rosewell (1978), 72 Ill. 2d 198, 201. See also
People ex rel. Peoria Civic Center Authority v. Vonachen (1975), 62 Ill. 2d
179.) This court has interpreted our own Rule 341(e)(7) (73 Ill. 2d R. 341(e)(7)),
which expresses the waiver doctrine, as ‘an admonition to the parties, not a
limitation upon the jurisdiction of the reviewing court.’ (Hux v. Raben (1967),
38 Ill. 2d 223, 224.) Moreover, Rule 366, which has been held analogous to the
plain error doctrine in criminal review (38 Ill. 2d 223, 224), provides: ‘(a)
Powers. In all appeals the reviewing court may, in its discretion, and on such
terms as it deems just *** (5) give any judgment and make any order *** and
further orders and grant any relief *** that the case may require.’ ”
Schutzenhofer, 93 Ill. 2d at 210-11.
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The court then determined that the appropriate remedy was a new trial, even though
the defendant had not sought that relief. Schutzenhofer, 93 Ill. 2d at 213.
¶ 84 Schutzenhofer establishes (1) that this court has indeed ordered a new trial in
the absence of a posttrial motion, even when a party has acknowledged that it was
not asking for a new trial and had forfeited the right to ask for one, and (2) that the
same considerations allowing this court to ignore forfeitures for other reasons apply
equally to forfeitures for failure to file a posttrial motion. See also Johnson v.
Transport International Pool, Inc., 345 Ill. App. 3d 471, 474 (2003) (“Our supreme
court has held that procedural default, including forfeiture by failure to file a
posttrial motion, does not limit the jurisdiction of the reviewing court.”).
¶ 85 The appellate court unquestionably had jurisdiction to order a new trial on the
negligent delivery claim. See Illinois Supreme Court Rule 301 (eff. Feb. 1, 1994)
(“The appeal is initiated by filing a notice of appeal. No other step is
jurisdictional.”). The majority claims that the plaintiffs did not challenge the jury’s
verdict in their notice of appeal and in their initial appellate brief. Supra ¶ 39. While
this may be a fair description of plaintiffs’ brief, it is beyond question that the
plaintiffs stated in their notice of appeal that they were appealing the judgment
entered on the jury’s verdict. As we explained in Schutzenhofer, the court clearly
had the power to order the new trial. Illinois Supreme Court Rule 366(a)(5) (eff.
Feb. 1, 1994) gives the reviewing court the power, in all appeals, to grant any relief
that the case may require.
¶ 86 The majority claims that there is “no authority *** for the proposition that a
notice of appeal or an appellate brief removes the statutory requirement of section
2-1202.” Supra ¶ 39. The majority further claims that, if the court were to adopt
such an interpretation, it would render section 2-1202 meaningless. Supra ¶ 39. The
majority has the balance of power backwards. The legislature cannot restrict the
jurisdiction of the appellate court, nor can it undermine the powers of the reviewing
court granted by this court in Rule 366(a). Recognizing this fact in no way renders
section 2-1202 meaningless. Rather, it just acknowledges what this court has said
for decades: forfeiture is a limitation on the parties and not on the jurisdiction of a
reviewing court. Klaine, 2016 IL 118217, ¶ 41.
¶ 87 I emphasize that this dissent should not be read as questioning the significant
policy justifications behind the posttrial motion requirement set forth in the
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majority opinion, nor should it be read as suggesting that forfeitures of this kind
should be excused lightly. This discussion is only intended to point out that the
majority errs in endorsing defendant’s argument that a reviewing court does not
have the authority to order a new trial in a jury case in the absence of a posttrial
motion.
¶ 88 The problem with the majority’s position can be identified by changing the facts
of this case just slightly. Say that the plaintiffs failed to file a posttrial motion, but
this was simply a result of a good faith, but mistaken, reliance on cases holding that
no posttrial motion is required when there has been a directed verdict. And then say
that plaintiffs argued extensively in their appellate brief that they were entitled to a
trial de novo because the erroneous directed verdict had tainted everything that
happened after it. Defendant responds in her response brief, and plaintiffs respond
to those arguments in their reply brief. The appellate court in Crim I agrees with
plaintiffs that the erroneous directed verdict tainted everything that came after it
and that plaintiffs accordingly did not receive a fair trial on the negligent delivery
claim. The court thus determines that the interests of justice require a new trial on
both issues. According to defendant and the majority, the appellate court would be
powerless to grant relief in that situation. Any such notion, however, is
categorically rejected by our supreme court rules and our case law.
¶ 89 The certified question, then, is not answered correctly by stating that the
appellate court in Crim I could not have remanded for a trial de novo on both claims
because plaintiffs failed to file a posttrial motion. Whether plaintiffs forfeited their
right to ask for a new trial on the negligent delivery claim by failing to file a posttrial
motion is solely a Crim I issue. It is too late to answer that question now. We may
not revisit Crim I after that case became final. The only issue in Crim II was the
legal effect of the general mandate that the appellate court issued in Crim I. By
revisiting Crim I after that case became final, the majority has allowed defendant
an impermissible collateral attack on Crim I.
¶ 90 IV. Conclusion
¶ 91 I would not answer the certified question. In my view, this court improvidently
granted the petition for leave to appeal, and the certified question was not a proper
use of Rule 308. I also disagree with the majority’s decision on the merits. In
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answering the certified question, the majority uses an analysis at odds with this
court’s rules and case law and mistakenly affords the legislature the power to
restrict the authority of reviewing courts to grant relief on forfeited claims.
Accordingly, I respectfully dissent.
¶ 92 JUSTICE MICHAEL J. BURKE took no part in the consideration or decision
of this case.
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