2015 IL App (1st) 133969 No. 1-13-3969 Opinion filed June 12, 2015
FIFTH DIVISION
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
SCOTT ARIENT, ) Appeal from the Circuit Court ) of Cook County. Plaintiff-Appellant, ) ) v. ) No. 2011 L 006026 ) NAZEER SHAIK, DR. SHAK'S AND ) SCOTT'S INC. and SCOTT'S PET ) SHOP INC., ) The Honorable ) Margaret Ann Brennan, Defendants-Appellees. ) Judge, presiding.
JUSTICE GORDON delivered the judgment of the court, with opinion. Presiding Justice Palmer and Justice Reyes concurred in the judgment and opinion.
OPINION
¶1 In the case at bar, defendant Nazeer Shaik purchased plaintiff Scott
Arient's pet shop, and plaintiff remained as an employee. There were three
agreements: an employee agreement whereby plaintiff continued to work at the No. 1-13-3969
shop; and a purchase agreement, as well as an asset purchase agreement,
whereby defendant purchased the shop. In 2011, defendant closed the pet shop
and plaintiff sued alleging breach of contract. On November 21, 2013, a jury
rendered a verdict against plaintiff on his claims and against defendant on his
counterclaims. As a result, the trial court issued an order stating that no
monetary award was entered against either party. 1
¶2 On this appeal, plaintiff seeks a new trial and raises one issue. He claims
that the trial court abused its discretion when it barred him from admitting
certain evidence. In response, defendant claims, among other things, that
plaintiff forfeited this issue by failing to file a posttrial motion. The jury verdict
and the trial court's order were both entered on November 21, 2013. Less than a
month later, plaintiff filed a notice of appeal on December 19, 2013, without
first filing a posttrial motion.
¶3 For the following reasons, we agree that this issue is forfeited for our
consideration.
1 The November 21, 2013, order stated: "it is so ordered that: The jury returning a verdict as follows: (1) In favor of Plaintiff and against Defendants; and (2) In favor of Defendants and against Plaintiff; (3) No money award entered versus any Party." Since neither party raised an issue as to whether this order constituted entry of judgment on the verdict, we will treat this order as entering judgment on the verdict. 2 No. 1-13-3969
¶4 BACKGROUND
¶5 Since we are presented with a purely legal question which requires us to
interpret the words of a statute and rule, we provide here only a summary of the
facts.
¶6 The facts established at trial are that defendant was a longstanding
customer of Scott's Pet Shop in Westchester, Illinois, which was owned by
plaintiff. On January 17, 2008, defendant purchased the shop. To facilitate the
purchase, the parties signed three documents: an employment agreement
whereby plaintiff remained as an employee after defendant's purchase; a
purchase agreement; and an asset purchase agreement. In June 2009, defendant
terminated plaintiff's employment for alleged breaches of the employment
agreement. In early 2011, defendant closed the shop and, on June 9, 2011,
plaintiff filed this lawsuit.
¶7 Plaintiff alleged a breach of both the employment agreement and the
purchase agreement, and sought an accounting and other relief. Defendant then
alleged two counterclaims for breach of contract and conversion.
¶8 On appeal, plaintiff raises only one issue, which is an alleged evidentiary
error by the trial court. Plaintiff alleges that the trial court erred by barring him
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from asking defendant whether Dr. Ghouse, 2 defendant's brother-in-law, took
$500 in cash out of the register every night.
¶9 The question arose during the following testimony concerning the store's
daily deposits:
"PLAINTIFF'S COUNSEL: And so [plaintiff] would provide ***
you [with] a copy of the deposit slip of how much money was deposited
that day, together with the printout from the cash register so that you
could keep track of the sales, right? You knew what the shop was doing?
Right? You have to say yes or right.
DEFENDANT: Yes.
PLAINTIFF'S COUNSEL: And sometimes [plaintiff] would deliver
this information to your brother-in-law, and that's Dr. [Ghouse], Dr.
[Ghouse]?
DEFENDANT: Dr. [Ghouse].
PLAINTIFF'S COUNSEL: And sometimes [plaintiff] would deliver
this information to your brother-in-law; is that right?
2 The transcript does not state a first name for Dr. Ghouse. In addition, although the transcript spells the last name as "Dr. Gaus," defendant in his appellate brief spells his brother-in-law's name as "Dr. Ghouse," so we use that spelling. 4 No. 1-13-3969
PLAINTIFF'S COUNSEL: Did your brother-in-law ever come to the
shop to collect any money?
DEFENDANT: He went to the shop on a daily basis?
PLAINTIFF'S COUNSEL: Dr. [Ghouse]?
PLAINTIFF'S COUNSEL: And when he went to the shop on a daily
basis, did he remove or take cash from the register?
DEFENDANT: Are you implying he steal[s] cash?
PLAINTIFF'S COUNSEL: Not at all. I'm asking you, did Dr.
[Ghouse] on a daily basis come in and take cash, remove cash from the
cash register?
DEFENDANT: The cash was removed from the register by [plaintiff]
and deposited into the bank, and Dr. [Ghouse] used to come and see over
[sic] if everything is done appropriately, if the sales are correct, if that
matches the register. So he was not taking money on his own.
PLAINTIFF'S COUNSEL: Well, in fact, Dr. [Ghouse] would come
to the shop and he would take $500 in cash on a daily basis; is that
correct?"
¶ 10 Defense counsel then requested a sidebar and objected. At the sidebar,
plaintiff's counsel stated: 5 No. 1-13-3969
"PLAINTIFF'S COUNSEL: Let me make an offer of proof.
[Plaintiff] is going to — he's going to testify as to three things. He's
going to say that he did the deposit slips and he made the deposits. He's
going to testify that he had access to the bank account online. Couldn't
write checks, but he had access to the bank account online. He will
testify that [Ghouse] came on a daily basis, took only $500 in cash. The
rest of the cash, whatever was left, [plaintiff] would deposit, and then
when he went to the bank[,] the bank deposit did not reflect the $500
cash on a daily basis. This is what [plaintiff] will testify to. Now, if that's
his testimony, then I should be allowed to inquire as to whether or not Dr.
[Ghouse] took $500 a day in cash and ask him did [he] in fact [know]
that $500, was that deposited. Let [defendant] say it was. But I should
be able to inquire on that."
¶ 11 The trial court ruled: "What you can't do is make it appear *** that there
was some sort of bag man or taking of this money because you're not going to
be able to tie it up because Dr. [Ghouse] is not going to testify here." Without
Dr. Ghouse, the question was more "prejudicial than probative." The trial court
clarified its ruling:
"THE COURT: Just so that we're clear: Can you go into who made
the deposit? Yes, you can go into who made the deposit. Was there a
6 No. 1-13-3969
register receipt indicating the sales of the day? Yes. You can go into
that. You can go into whether Dr. [Ghouse] was present when the till
was closed out each night. *** You can't go into whether or not
specifically $500 was removed every night by Dr. [Ghouse].
***
PLAINTIFF'S COUNSEL: If I am not allowed to ask whether or not
the total receipts match the total deposit of either [defendant] or
[plaintiff], I think that's improper.
THE COURT: And you've made your record. My ruling stands."
¶ 12 The appellate record does not indicate either that plaintiff subpoenaed Dr.
Ghouse to testify at trial or that there was some other reason for Dr. Ghouse's
absence, such as death or illness; and on appeal, plaintiff does not claim that
there was either a subpoena or a reason for Dr. Ghouse's absence.
¶ 13 Later during the trial, plaintiff testified as follows about the missing $500
per day:
"PLAINTIFF'S COUNSEL: And did you have any specific
instructions about how to make the [daily] deposit?
PLAINTIFF: I was told to deposit everything except for $500 a day.
PLAINTIFF'S COUNSEL: That was [defendant]?
PLAINTIFF: [Defendant] instructed me to do that, yes." 7 No. 1-13-3969
Defense counsel moved for a mistrial, which the trial court denied. The trial
court instructed plaintiff's counsel to "mov[e] along pretty quickly away from
this line of questioning," but the above testimony was not stricken.
¶ 14 On November 21, 2013, the jury rendered a verdict against plaintiff on
his claims and against defendant on his counterclaims, and the trial court issued
an order stating that no monetary award was entered against either party. On
December 19, 2013, plaintiff filed a notice of appeal, and this appeal followed.
¶ 15 ANALYSIS
¶ 16 Plaintiff claims that the trial court abused its discretion by barring him
from admitting certain testimony. Defendant claims that plaintiff forfeited this
issue by failing to file a posttrial motion. For the following reasons, we agree
that this issue is forfeited for our consideration.
¶ 17 I. Standard of Review.
¶ 18 The question before us is whether the Illinois Supreme Court Rules and
Code of Civil Procedure require the filing of a posttrial motion in civil jury
cases prior to filing an appeal. This is a question of statutory interpretation
which we consider de novo. Zurek v. Cook County Officers Electoral Board,
2014 IL App (1st) 140446, ¶ 11; Luss v. Village of Forest Park, 377 Ill. App. 3d
318, 322 (2007) (the proper construction of a statute is a question of law that we
review de novo). De novo consideration means that we perform the same
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analysis that a trial judge would perform. Zurek v. Franklin Park Officers
Electoral Board, 2014 IL App (1st) 142618 ¶ 63 (citing Khan v. BDO Seidman,
LLP, 408 Ill. App. 3d 564, 578 (2011).
¶ 19 "As we do in every case of statutory interpretation, we look first and
foremost to the language of the statute itself." People v. Wright, 2012 IL App
(1st) 073106, ¶ 78 (citing People v. Cardamone, 232 Ill. 2d 504, 512 (2009).
"The primary objective of statutory interpretation is to give effect to the intent
of the legislature" (Lacey v. Village of Palatine, 232 Ill. 2d 349, 361 (2009);
Cardamone, 232 Ill. 2d at 512) and " 'the plain language of the statute is the
best indicator of the legislature's intent.' " Zurek, 2014 IL App (1st) 142618,
¶ 64 (quoting Metzger v. DaRosa, 209 Ill. 2d 30, 34-35 (2004)). " 'When the
statute's language is clear, it will be given effect without resort to other aids of
statutory construction.' " Zurek, 2014 IL App (1st) 142618, ¶ 64 (quoting
Metzger, 209 Ill. 2d at 35).
¶ 20 We review the statute in its entirety, keeping in mind the subject it
addresses and the legislature's apparent objective in enacting it. Wright, 2012
IL App (1st) 073106, ¶ 78 (citing Cardamone, 232 Ill. 2d at 512). "Each word,
clause and sentence of the statute, if possible, must be given reasonable
meaning and not rendered superfluous." People ex rel. Sherman v. Cryns, 203
Ill. 2d 264, 280 (2003). In this endeavor, we consider both any stated purpose,
9 No. 1-13-3969
as well as what Illinois courts have previously determined. Zurek, 2014 IL App
(1st) 142618, ¶ 64 (citing Metzger, 209 Ill. 2d at 38).
¶ 21 II. Posttrial Motion in Civil Jury Trials
¶ 22 Defendant argues that both section 2-1202(e) of the Code of Civil
Procedure (Code) (735 ILCS 5/2-1202 (West 2012)) and Illinois Supreme Court
Rule 366 required plaintiff to raise issues in a posttrial motion before raising
those issues on appeal. Below, we quote and analyze the language from the
applicable statute and rule, and then set forth the relevant case law.
¶ 23 A. Code of Civil Procedure
¶ 24 Section 2-1202 governs "[p]ost-trial motions in jury cases," such as the
one at bar. 735 ILCS 5/2-1202 (West 2012) (unchanged since July 1, 1982).
Section 2-1202 states that posttrial motions in jury cases "must" be filed within
30 days after the entry of judgment, and that 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 2012).
¶ 25 Section 2-1202(e) specifies what happens if a party in a jury case fails to
file a posttrial motion. Subsection (e) states in full:
10 No. 1-13-3969
"(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 2012).
¶ 26 The Code treats nonjury cases very differently. In re Marriage of
Jerome, 255 Ill. App. 3d 374, 389 (1994); Malfeo v. Larson, 208 Ill. App. 3d
418, 422 (1990) (" 'In a non-jury civil case, the failure to include a point in a
post-trial motion does not preclude its being raised on appeal.' " (quoting City of
Chicago v. Mid-City Laundry, 8 Ill. App. 3d 88, 90 (1972))). Section 2-1203
governs the filing of posttrial motions in nonjury civil cases, and it states that a
party "may" file a posttrial motion within 30 days after the entry of judgment.
735 ILCS 5/2-1203(a) (West 2012). The permissive "may" in section 2-1203
stands in stark contrast to the "must" used in section 2-1202 (735 ILCS 5/2-
1202(c) (West 2012). The relevant portions of both sections are quoted below,
so that they are easy to compare:
"In all cases tried without a jury, any party may, within 30 days after
the entry of the judgment *** file a motion for rehearing, or a retrial, or
modification of the judgment or to vacate the judgment or for other
relief." (Emphasis added.) 735 ILCS 5/2-1203(a) (eff. Jan. 1, 2011).
11 No. 1-13-3969
"Post-trial motions must be filed [in jury cases] within 30 days after
the entry of judgment ***." (Emphasis added.) 735 ILCS 5/2-1202(c)
¶ 27 The two sections also differ in what they require in the motions. Section
2-1203, which governs "non-jury cases," does not specify at all what the motion
should contain. 735 ILCS 5/2-1203(a) (West 2012). By comparison, section 2-
1202, which governs "jury cases," requires that: "The post-trial 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." (Emphasis
added.) 735 ILCS 5/2-1202(b) (West 2012). See also In re Marriage of
Jerome, 255 Ill. App. 3d at 389 (section 2-1203 "does not mandate the detail as
required by section 2-1202 which applies to jury cases").
¶ 28 Similarly, section 2-1203 says nothing about waiver (735 ILCS 5/2-
1203 (West 2012)), while section 2-1202 expressly provides that a party in a
jury case, who fails to seek a new trial in a posttrial motion, "waives" the right
to seek a new trial later (735 ILCS 5/2-1202(e) (West 2012)). Thus, the plain
language of the Code and its separate sections for jury and nonjury cases
indicate that the legislature intended different requirements and results for jury
12 No. 1-13-3969
and nonjury cases, with the failure to file a posttrial motion resulting in waiver
in jury cases but not in nonjury cases.
¶ 29 There are two exceptions when a litigant in a jury case does not have
to file a posttrial motion, and neither exception applies in this case. First,
section 1202(e) provides that a posttrial motion is required in jury cases "except
in cases in which the jury has failed to reach a verdict." 735 ILCS 5/2-1202(e)
(West 2012). In the case at bar, the jury reached a verdict, so this statutory
exception does not apply. Second, interpreting this statutory exception,
appellate courts have also carved out an exception for directed verdicts, so that
it is also not necessary for a party to file a posttrial motion after the trial court
directs a verdict. 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 281-82 (1967))); Robbins v. Professional Construction Co., 72 Ill. 2d 215,
225 (1978) (observing that the Keen exception for directed verdicts is a "narrow
exception"). Since both these exceptions do not apply to the case at bar, the
plain language of the statute dictates that a party "waives" the right to seek "a
new trial" based on issues not raised in a posttrial motion. 735 ILCS 5/2-
1202(e) (West 2012).
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¶ 30 B. Supreme Court Rule 366
¶ 31 The same result is also dictated by Supreme Court Rule 366. Subsection
(b) of Rule 366 is entitled: "Scope of Review." Ill. S. Ct. R. 366(b) (eff. Feb.
1, 1994). This subsection is divided into three parts: (1) "General"; (2) "Scope
and Procedure on Review in Jury Cases"; and (3) "Scope and Procedure on
Review in Nonjury Cases." Ill. S. Ct. R. 366(b) (eff. Feb. 1, 1994). Like the
Code, the very structure of the rule indicates that jury and nonjury cases are to
be treated differently.
¶ 32 Subsection (b) states in relevant part:
(2) Scope and Procedure on Review in Jury Cases.
* * *
(iii) Post-Trial Motion. A party may not urge as error on review of
the ruling on the party's post-trial motion any point, ground, or relief
not specified in the motion.
(3) Scope and Procedure on Review in Nonjury Cases.
(ii) Post Judgment Motions. Neither the filing of nor the failure to
file a post judgment motion limits the scope of review." Ill. S. Ct. R.
366(b)(2)(iii), (3)(ii) (eff. Feb. 1, 1994). 14 No. 1-13-3969
As the above quote demonstrates, jury and nonjury cases are treated quite
differently by the rules. While the failure to file a posttrial motion in a nonjury
case does not limit the scope of the appellate court's review, the failure to file a
posttrial motion in a jury cases results in waiver, which we now call a
forfeiture. In contrast to a nonjury case, a party in a jury case may not argue to
the appellate court "any point, ground, or relief not specified" in his or her
posttrial motion. Ill. S. Ct. R. 366(b)(2)(iii), (3)(ii) (eff. Feb. 1, 1994).
¶ 33 C. Case Law
¶ 34 With the language of the statute and rule so clear, it is then no surprise
that the courts have consistently held for decades that the failure to file a
posttrial motion in a jury case results in forfeiture. E.g., Garcia, 2011 IL App
(1st) 103085, ¶ 32 ("Illinois Supreme Court Rule 366 required plaintiff to file a
posttrial motion in order to preserve issues for review [after a jury trial].
Plaintiff failed to do so, and he has therefore forfeited review of any alleged
errors."). See also Brown v. Decatur Memorial Hospital, 83 Ill. 2d 344, 348-
499 (1980) (plaintiff waived for review on appeal an issue with respect to jury
instructions, where his posttrial motion did not "specif[y] the ground upon
which it is based"); Nilsson v. NBD Bank of Illinois, 313 Ill. App. 3d 751, 767
(1999) (after a jury trial, "defendants failed to file a posttrial motion; therefore
they have failed to preserve the issue" for review); In re Parentage of Kimble,
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204 Ill. App. 3d 914, 916 (1990) ("Petitioner's failure to file a post-trial motion
following the jury trial amounted to failure to preserve any matters for
review."); Malott v. Hart, 167 Ill. App. 3d 209, 211 (1988) ("The plaintiffs'
failure to file a post-trial motion amounted to a failure to preserve any matters
for review."); Leslie H. Allott Plumbing & Heating, Inc. v. Owens-Corning
Fiberglas,3 112 Ill. App. 3d 136, 137 (1983) (appeal dismissed where the
plaintiff in a jury case failed to file a posttrial motion);
¶ 35 In Allott Plumbing, the appellate court explained the policy reasons
behind the requirement for a posttrial motion in a jury case:
"The plaintiff's failure to file a post-trial motion has resulted in a
waiver of the issue it now seeks to raise on appeal. Before we can be
asked to assess the propriety of the jury's verdict, the trial judge, who is
most familiar with the evidence and the witnesses, must be given an
opportunity to review his ruling and decide if a new trial or a judgment
notwithstanding the verdict is appropriate. [Citation.] The plaintiff's
failure to file a post-trial motion has denied the trial judge the opportunity
to reassess his decision." Allott Plumbing, 112 Ill. App. 3d at 137 ("For
the foregoing reasons, this appeal is dismissed."); accord In re Parentage
of Kimble, 204 Ill. App. 3d at 916-17 (1990) ("Before we can be asked to
3 In the caption of the case, the word "fiberglass" is spelled "fiberglas." 16 No. 1-13-3969
assess the correctness of the original rulings of the trial court, the trial
judge, who is most familiar with the events of the trial must be given an
opportunity to reassess his rulings.").
¶ 36 The plain language of the Code and Supreme Court Rule 366, as well as
our well-established case law, require the filing of a posttrial motion in a jury
case, which plaintiff failed to do.
¶ 37 There is case law permitting a reviewing court to consider a forfeiture
under the plain error doctrine in civil cases. Wilbourn v. Cavalenes, 398 Ill.
App. 3d 837, 855-56 (2010) (citing Palanti v. Dillon Enterprises, Ltd., 303 Ill.
App. 3d 58, 66 (1999) (citing Belfield v. Coop, 8 Ill. 2d 293, 313 (1956)));
Matthews v. Avalon Petroleum Co., 375 Ill. App. 3d 1, 8 (2007); In re Marriage
of Saheb, 377 Ill. App. 3d 615, 627 (2007). Although the doctrine may be
applied in civil cases, it finds much greater application in criminal cases.
Wilbourn, 398 Ill. App. 3d at 856 (citing Gillespie v. Chrysler Motors Corp.,
135 Ill. 2d 363, 375 (1990)). The plain error doctrine may be applied in civil
cases only where the act complained of was a prejudicial error so egregious that
it deprived the complaining party of a fair trial and substantially impaired the
integrity of the judicial process itself. Wilbourn, 398 Ill. App. 3d at 856;
Matthews, 375 Ill. App. 3d at 8; In re Marriage of Saheb, 377 Ill. App. 3d at
627. This court has observed that the application of the plain error doctrine to
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civil cases should be exceedingly rare. Wilbourn, 398 Ill. App. 3d at 856 (citing
Palanti v. Dillon Enterprises, Ltd., 303 Ill. App. 3d 58, 66 (1999)).
¶ 38 In the instant appeal, plaintiff argues that we should consider his case
under the plain error doctrine since "he did not file a written posttrial motion on
the issue to avoid a mistrial." Plaintiff argues that, when he kept raising the
issue (in front of the jury and in violation of the trial court's order), the trial
court warned him that if he did it again, the court would declare a mistrial.
Plaintiff's argument is not persuasive. First, the trial court's admonition was
directed toward plaintiff's conduct in front of the jury. Filing a written posttrial
motion would not violate the trial court's order, since the jury would not have
been made aware of the written motion and, in any event, the jury had already
been dismissed. Second, no rational trial judge would declare a mistrial on the
ground that plaintiff was filing a statutorily required motion. Thus, we do not
find plaintiff's argument persuasive.
¶ 39 In addition, plaintiff's alleged evidentiary error was not so egregious that
it makes us question the integrity of the judicial process itself. E.g., Wilbourn,
398 Ill. App. 3d at 856. In the case at bar, the trial court ruled: "What you can't
do is make it appear *** that there was some sort of bag man or taking of this
money because you're not going to be able to tie it up because Dr. [Ghouse] is
not going to testify here." Without Dr. Ghouse, the trial court found that the
18 No. 1-13-3969
question was more "prejudicial than probative." Ill. R. Evid. 403 (eff. Jan. 1,
2011) ("Although relevant, evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice."). The appellate
record does not indicate either that plaintiff subpoenaed Dr. Ghouse to testify at
trial or that there was some other reason for Dr. Ghouse's absence, such as death
or illness; and on appeal, plaintiff does not claim that there was either a
subpoena or a reason for Dr. Ghouse's absence. Thus, even if we considered the
issue and found error, it was not the type of egregious error required to trigger
the application of the plain error doctrine in civil cases. E.g., Wilbourn, 398 Ill.
App. 3d at 856.
¶ 40 CONCLUSION
¶ 41 For the foregoing reasons, the issue raised by plaintiff is forfeited for our
consideration on appeal.
¶ 42 Affirmed.