Crim v. Dietrich , 2020 IL 124318 ( 2021 )

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Crim v. Dietrich, 2020 IL 124318Caption in Supreme COLLIN CRIM, a Minor, by His Parents and Next Friends, Kristopher
Court: Crim and Teri Crim, Appellees, v. GINA DIETRICH, Appellant.
Docket No. 124318
Filed April 2, 2020
Decision Under Appeal from the Appellate Court for the Fourth District; heard in that
Review court on appeal from the Circuit Court of Adams County, the Hon.
Mark Drummond, Judge, presiding.
Judgment Certified question answered.
Reversed and remanded.
Counsel on Craig L. Unrath, of Heyl, Royster, Voelker & Allen, of Peoria, and
Appeal Adrian E. Harless and Tyler J. Robinson, of Heyl, Royster, Voelker &
Allen, of Springfield, for appellant.
David A. Axelrod and Matthew R. Axelrod, of David A. Axelrod &
Associates, P.C., of Chicago, and Jonathan T. Nessler, of Nessler &
Associates, Ltd., of Springfield, for appellees.
Richard M. Burgland and Donald P. Eckler, of Pretzel & Stouffer
Chtrd., of Chicago, for amicus curiae Illinois Association of Defense
Trial Counsel.
Lawrence R. Kream, of Law Office of Lawrence R. Kream, LLC, of
Chicago, for amicus curiae Illinois Trial Lawyers Association.
Justices 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
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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 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 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
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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.
¶ 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
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, 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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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 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 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
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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:
“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
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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 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)).
¶ 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
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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 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
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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.
¶ 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 require 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” 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
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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 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.”).
2
We note that ITLA’s amicus brief in support of plaintiffs urges this court to “ignore” Keiser-Long.
- 10 -
¶ 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 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 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.”
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¶ 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 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.
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Crim II cited the rule relied upon by plaintiffs 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.
¶ 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:
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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“[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.
¶ 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
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IL 121048, ¶ 32; see also Hampton v. Metropolitan 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, 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
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.
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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
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
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”).
- 16 -
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).
¶ 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.). 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
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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 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
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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.
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 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
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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 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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