NO. 5-95-0594
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
_________________________________________________________________
JANET SPURGEON, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Madison County.
)
v. ) No. 89-L-929
)
ALTON MEMORIAL HOSPITAL and ALTON )
MEMORIAL HEALTH SYSTEMS, INC., ) Honorable
) George J. Moran,
Defendants-Appellants. ) Judge, presiding.
_________________________________________________________________
JUSTICE GOLDENHERSH delivered the opinion of the court:
Defendants, Alton Memorial Hospital (hereinafter the hospital)
and Alton Memorial Health Systems, Inc. (hereinafter Health
Systems), appeal from an order of the circuit court of Madison
County granting plaintiff, Janet Spurgeon, a new trial. On appeal,
defendants raise four issues, specifically: (1) whether the trial
court exceeded its jurisdiction in granting plaintiff a new trial;
(2) whether the trial court erred in granting plaintiff's motion
for a new trial based upon the record and the evidence adduced at
trial; (3) whether the trial court erred in allowing plaintiff to
add the hospital as a defendant; and (4) whether the trial court
erred by not entering a judgment in favor of defendants for costs
but rather ordering each party to pay its own costs. We affirm.
FACTS
Plaintiff originally filed her complaint on September 8, 1989,
against Health Systems for injuries she sustained in a slip and
fall on a parking lot at Health Systems' place of business. Health
Systems filed a timely answer denying plaintiff's allegations of
negligence and damages and later filed an amended answer in which
it asserted the affirmative defense of contributory fault.
Discovery ensued. In answers to plaintiff's interrogatories,
Health Systems identified the owner of the premises in issue as
Alton Memorial Hospital, Inc. Health Systems freely admits that
its answer was incorrect to the extent that "Inc." should not have
been included, as the hospital is not incorporated. In any event,
Health Systems continued to produce hospital records and hospital
employees for depositions as requested by plaintiff.
On December 2, 1991, the cause came for trial. On that date,
plaintiff learned that Health Systems did not, in fact, own the
premises where the alleged injury occurred, but that the hospital
owned the premises. On that date, plaintiff added the hospital as
a defendant, and the cause was continued to May 1992. On January
30, 1992, the hospital filed a motion to dismiss on the basis that
plaintiff failed to name it as a defendant within the applicable
statutory limitation period. The hospital's motion to dismiss was
denied.
The cause was tried in April 1994. The jury returned a
verdict in favor of both defendants, and the trial court entered
judgment on the verdict on April 21, 1994. On May 5, 1994,
plaintiff filed a motion for extension of time to file a posttrial
motion. On May 19, 1994, defendants moved for an extension of time
to file their response to plaintiff's posttrial motion and motion
for sanctions should the trial court grant plaintiff the additional
time she requested. Also on May 19, 1994, defendants filed a
motion for reconsideration regarding the trial court's award of
costs. The motion for extension of time was not ruled on in
writing by the trial court until May 31, 1994, at which time the
trial court granted the motion.
On June 30, 1994, plaintiff filed a motion for judgment
notwithstanding the verdict or for a new trial and for sanctions.
On July 28, 1994, defendants filed a motion to strike plaintiff's
posttrial motions on the basis that they were not timely.
Defendants also filed an alternative memorandum in opposition to
plaintiff's motion for judgment notwithstanding the verdict or for
a new trial. On December 7, 1994, the trial court denied
defendants' motion to strike and reset plaintiff's posttrial
motion. Thereafter, on June 30, 1995, the trial court heard oral
arguments on said motion. On July 14, 1995, the trial court
entered an order granting plaintiff's motion for a new trial,
denying plaintiff's motion for judgment notwithstanding the
verdict, and denying all parties' motions for sanctions and costs.
Defendants now appeal.
ISSUES
I
The first issue we are asked to address is whether the trial
court exceeded its jurisdiction in granting plaintiff a new trial.
Defendants assert that the trial court erred in considering and
then granting plaintiff's motion for a new trial because the trial
court was without jurisdiction, as plaintiff failed to file a
motion for a new trial within 30 days after the entry of such
judgment and because no extension of time was granted within 30
days following the entry of judgment. Plaintiff responds that the
trial court had jurisdiction at the time it granted plaintiff's
motion for extension of time to file her posttrial motion because
defendants filed a timely posttrial motion for reconsideration on
the issue of costs, which stayed enforcement of the judgment,
thereby leaving jurisdiction with the trial court until 30 days
after being ruled upon. The motion for reconsideration of costs
was ruled upon on July 14, 1995, well within the time in which
plaintiff was granted an extension. We agree with plaintiff.
Section 2-1202(c) of the Code of Civil Procedure (the Code)
provides, in pertinent part:
"(c) Post-trial motions must be filed within 30 days
after the entry of judgment or the discharge of the jury, if
no verdict is reached, or within any further time the court
may allow within the 30 days or any extensions thereof." 735
ILCS 5/2-1202(c) (West 1994).
In Kwak v. St. Anthony De Padua Hospital, 54 Ill. App. 3d 719,
369 N.E.2d 1346 (1977), our colleagues on the First District
Appellate Court, relying on the above language, held that a
posttrial motion was not timely filed even though a motion for
extension of time was timely filed in the case, because the motion
for extension of time was not granted until after 30 days from the
entry of final judgment. Kwak was a medical malpractice case in
which the trial court entered summary judgment in favor of the
defendant hospital on January 26, 1976, and thereafter directed a
verdict in favor of a second defendant, a doctor, on January 29,
1976. Kwak, 54 Ill. App. 3d at 723, 369 N.E.2d at 1349. Both
judgments became final on those days. The Kwak court specifically
stated:
"As the judgments of January 26 and 29 were at all times
final, the jurisdiction of the trial court could be extended
beyond February 25 and 28 only if prior to these dates a post-
trial motion had been filed or the trial court had allowed an
extension of time within which to file such motion. Plaintiff
having accomplished neither prior to February 25 or 28, the
trial court was without jurisdiction to entertain her motion
on March 10." Kwak, 54 Ill. App. 3d at 724, 369 N.E.2d at
1350.
In our estimation, we need not go so far as to either agree or
disagree with our colleagues in the First District because the
instant case is distinguishable from Kwak.
Here, defendants filed their own posttrial motion for
reconsideration on the issue of costs. Verdict was entered on
April 21, 1994. Plaintiff filed a motion for extension of time to
file a posttrial motion on May 5, 1994. On May 19, 1994, defen-
dants filed a motion for reconsideration regarding the trial
court's award of costs. The trial court, in a written order,
granted plaintiff's motion for extension of time on May 31, 1994,
but did not rule upon the motion for costs until July 14, 1995.
We agree that it is generally true that an appellant is
limited to filing either a posttrial motion or a notice of appeal
within 30 days of the entry of judgment. In re Marriage of Uphoff,
99 Ill. 2d 90, 94, 457 N.E.2d 426, 428 (1983). Notwithstanding
this general rule, as long as any party's posttrial motion remains
undisposed, the underlying judgment is not final, notice of appeal
is premature, and complete jurisdiction remains with the circuit
court. Uphoff, 99 Ill. 2d at 95, 457 N.E.2d at 428 (citing City of
DeKalb v. Anderson, 22 Ill. App. 3d 40, 43-44, 316 N.E.2d 653, 656
(1974)). Therefore, under the circumstances presented here, where
defendants filed a motion to reconsider the issue of costs, we find
that the facts are distinguishable from Kwak and that the trial
court retained jurisdiction to grant plaintiff an extension of time
to file her posttrial motion and to ultimately grant plaintiff a
new trial.
Defendant cites Putz v. Schulte, 104 Ill. App. 3d 128, 432
N.E.2d 1070 (1982), in which we determined that the statute
providing time limits for posttrial motions in nonjury cases (Ill.
Rev. Stat. 1979, ch. 110, par. 68.3(1) (now 735 ILCS 5/2-1203(a)
(West 1994))) requires that a party seeking postjudgment relief
must file a posttrial motion within 30 days after entry of the
judgment, and time for the filing the posttrial motion is not
extended by the timely filing of a posttrial motion by another
party. We specifically rejected any "stacking" of time by stating,
in pertinent part:
"The effect of permitting the late filing of defendants'
post-trial motion would be a stacking of 30-day periods for
permissible filing. Such measures would lead to a host of
problems and wreak havoc with post-trial procedure and the
appellate process." Putz, 104 Ill. App. 3d at 132, 432 N.E.2d
at 1073.
While we still agree with our decision in Putz, the instant case
offers a new twist. In Putz, the defendants filed their posttrial
motion 43 days following entry of judgment (Putz, 104 Ill. App. 3d
at 129, 432 N.E.2d at 1071), whereas in the instant case, plaintiff
filed a motion for extension of time 14 days following entry of
judgment, and, through no fault of her own, such motion was not
ruled upon until after the expiration of 30 days from the entry of
judgment. Plaintiff even contends that the trial court orally
granted an extension of time, and defendants did not deny this
allegation. It is clear that plaintiff made every effort to comply
with section 2-1202(c) of the Code. Furthermore, the trial court
retained jurisdiction at the time it granted plaintiff an extension
by virtue of the fact that judgment was not final since the issue
of costs was still open.
II
The second issue we are asked to consider is whether the trial
court erred in granting a new trial based upon the record and
evidence adduced at trial. Defendants contend that granting
plaintiff's motion for a new trial was an abuse of discretion and
contrary to the law and the facts as established by the record. We
disagree.
Here, the trial court granted plaintiff a new trial after
concluding it erred (1) by not allowing the testimony of plain-
tiff's investigator, Darrell Cooper, (2) by allowing defense
counsel during his closing statement to misstate Illinois law as it
applies to the case at bar, and (3) because the testimony of Ron
McMullen, a registered agent for both defendants, was highly
questionable, and plaintiff might be able to obtain further
evidence from McMullen in support of her claim if a new trial were
granted. Additionally, the trial court noted that substantial
evidence was presented that could lead a jury to render a verdict
for plaintiff and that the exclusion of the testimony of Darrell
Cooper, who would have testified that defendants were aware prior
to plaintiff's fall that the area in which plaintiff fell was a
problem area in terms of forming ice, substantially prejudiced
plaintiff.
It is well settled that the allowance of a motion for a new
trial is within the trial court's discretion, and its decision to
grant a new trial will not be disturbed absent a clear abuse of
that discretion. Klatt v. Commonwealth Edison Co., 33 Ill. 2d 481,
211 N.E.2d 720 (1965); Lewis v. Cotton Belt Route--St. Louis
Southwestern Ry., 217 Ill. App. 3d 94, 119, 576 N.E.2d 918, 937
(1991); Ervin v. Sears, Roebuck & Co., 65 Ill. 2d 140, 357 N.E.2d
500 (1976). Here, after reviewing the record and the trial court's
order granting plaintiff a new trial, we cannot say that the trial
court abused its discretion.
First, as to the exclusion of Darrell Cooper's testimony, the
record supports the trial court's determination that Cooper's
testimony might lead a jury to conclude that defendants were aware
that the area in which plaintiff fell was a problem in terms of
formation of ice. Accordingly, plaintiff was prejudiced by the
exclusion of Cooper's testimony.
Second, a review of defense counsel's closing argument shows
defense counsel misstated the law during closing argument. Defense
counsel stated, inter alia, "unnatural, artificial, the point is if
in making their efforts to clear off snow they left some snow
behind and she fell on that, there's no liability to the hospital."
After an objection by plaintiff's counsel, which was overruled,
defense counsel went on to state, "if in plowing the lot we left
some snow or ice behind, there's no liability as to the hospital
***." While it is true that attorneys are allowed broad latitude
in drawing reasonable inferences and conclusions from the evidence
during closing argument (Tonerelli v. Gibbons, 121 Ill. App. 3d
1042, 1049, 460 N.E.2d 464, 469 (1984)), we, nevertheless, agree
with the trial court that the above statements are a misstatement
of the law in Illinois and severely prejudiced plaintiff.
Defendants freely admitted that they removed snow and ice from the
parking lot in issue. In doing so, they had a duty to correctly
remove the snow. DeMario v. Sears, Roebuck & Co., 6 Ill. App. 3d
46, 284 N.E.2d 330 (1972). Defense counsel's generalized statement
that it is perfectly acceptable to leave behind snow or ice after
a removal attempt is made is an incorrect statement of the law, as
the issue involved in this case was whether the ice where plaintiff
fell should or could have been removed or was created by
defendants' negligent removal.
Defendants cite to Stiles v. Panorama Lanes, Inc., 107 Ill.
App. 3d 896, 438 N.E.2d 241 (1982), in support of their contention
that the aforementioned statements were correct and not prejudi-
cial. However, Stiles is distinguishable from the case at bar. In
Stiles, this court found that defendant did not create any
unnatural accumulation of snow and ice by allowing motor vehicles
to come on the parking lot, and the resulting icy ruts caused by
automobile tires were found to be a natural ice formation. Stiles,
107 Ill. App. 3d at 900, 438 N.E.2d at 243-44. Tire ruts, however,
are no part of the factual scenario of the instant action. The
question here remains whether the snow was improperly removed,
causing the formation of ice on which plaintiff fell.
Finally, on this issue, defendants complain that the credibil-
ity or believability of their employee, Ronald McMullen, was a
determination to be made by the jury and not a basis for granting
plaintiff a new trial. However, our review of the trial court's
order indicates that plaintiff was not granted a new trial on this
basis. The trial court noted that one of the benefits in granting
plaintiff a new trial on other issues would be for plaintiff to
have another chance to obtain additional information from McMullen,
information which was previously and somewhat questionably not
disclosed.
The trial court stated:
"C. The Court finds the testimony of Ron McMullen, regis-
tered agent for both Defendants, highly questionable. It is
difficult for the Court to understand how a registered agent
for a corporation would not know who the president of the
corporation is when he himself was the prior president and
director coupled with the fact that his office is located on
the premises of the corporations for which he claims no such
knowledge. However, Plaintiff fails to show how this testimo-
ny prejudices him except to say he may not have received some
information that he would have obtained but for Ron McMullen's
testimony. Plaintiff may yet obtain further evidence in
support of her claim through discovery if a new trial is
granted."
Defendants are correct that the credibility of witnesses is a
determination to be made by the trier of fact, the jury herein.
Rodgers v. Withers, 229 Ill. App. 3d 246, 249, 593 N.E.2d 669, 672
(1992). Nevertheless, we do not believe that the above language
requires us to reverse the trial court's determination to grant
plaintiff a new trial because we are certain that the trial court
granted plaintiff a new trial on grounds other than McMullen's
testimony.
III
The third issue, raised specifically by the hospital, is
whether the trial court erred in allowing plaintiff to add the
hospital as a defendant. The hospital contends that the trial
court erred in allowing plaintiff to file an amended petition
naming it as a defendant and in denying its motion to dismiss,
first, because plaintiff's claim against the hospital was barred by
the two-year statute of limitations, and second, because no
exception to the statute of limitations defense existed because
plaintiff had actual notice of the hospital's ownership of the
parking lot. The hospital contends that because of Health Systems'
answer to plaintiff's complaint, along with several of Health
Systems' answers to plaintiff's interrogatories, plaintiff was
advised 1½ years prior to the expiration of the statute of
limitations that the hospital, or at least some party other than
Health Systems, owned and maintained the lot and, therefore, the
trial court's decision to grant plaintiff's oral motion to add the
hospital as a defendant was a clear abuse of discretion. Plaintiff
replies that the trial court was acting within reasonable bounds of
discretion in allowing her to amend her complaint to add the
hospital because Health Systems improperly stated the name of the
corporation in answers to interrogatories. In addition, plaintiff
asserts that Health Systems, in a number of pleadings and letters,
identified itself as Alton Memorial Hospital, produced all
employees of the hospital, and provided plaintiff's records from
the hospital. Plaintiff insists that, based upon these facts, its
failure to join the hospital was inadvertent and the trial court
acted properly in allowing plaintiff to add the hospital as a
party. We agree with plaintiff.
The parties agree that section 2-616(d) of the Code governs
this issue:
"(d) A cause of action against a person not originally
named a defendant is not barred by lapse of time under any
statute or contract prescribing or limiting the time within
which an action may be brought or right asserted, if all the
following terms and conditions are met: (1) the time pre-
scribed or limited had not expired when the original action
was commenced; (2) failure to join the person as a defendant
was inadvertent; (3) service of summons was in fact had upon
the person, his or her agent or partner, as the nature of the
defendant made appropriate, even though he or she was served
in the wrong capacity ***; (4) the person, within the time
that the action might have been brought or the right asserted
against him or her, knew that the original action was pending
and that it grew out of a transaction or occurrence involving
or concerning him or her; and (5) it appears from the original
and amended pleadings that the cause of action asserted in the
amended pleading grew out of the same transaction or occur-
rence set up in the original pleading ***." 735 ILCS 5/2-
616(d) (West 1994).
The decision to allow amendments to pleadings to allow a new
defendant rests within the sound discretion of the trial court.
Newey v. Newey, 215 Ill. App. 3d 993, 1005, 576 N.E.2d 137, 145
(1991); Behr v. Club Med, Inc., 190 Ill. App. 3d 396, 406, 546
N.E.2d 751, 759 (1989). Inadvertence, in the context of section 2-
616(d)(2) means excusable ignorance, not excusable failure to act
after the facts are discovered. Zincoris v. Hobart Brothers Co.,
243 Ill. App. 3d 609, 614, 611 N.E.2d 1327, 1331 (1993). Ignorance
connotes a lack of knowledge of the identity or existence of a
defendant. Zincoris, 243 Ill. App. 3d at 614, 611 N.E.2d at 1331.
In the instant case, we cannot say that the trial court's
finding that plaintiff's failure to add the hospital was inadver-
tent was incorrect. First, Health Systems admits that in its
answers to interrogatories it incorrectly identified the owner of
the premises as Alton Memorial Hospital, Inc., when the hospital
was not incorporated. Attempts by plaintiff to obtain the name of
the registered agent through the Secretary of State's Office were
futile, as there was no hospital by that name. Second, Health
Systems' answers to not only the complaint, but also interroga-
tories, were written in such a way as to lead plaintiff to believe
that Health Systems was the only proper defendant. For example, in
interrogatory number 27 plaintiff asked Health Systems the
following: "When was the date and time of the last inspection by
the defendant, its agents or employees, of the physical site where
this accident occurred?" Health Systems answered that
"[i]nspections were made on a regular basis at the roadways and
sidewalks during inclement weather." In our estimation, this
answer indicates that Health Systems routinely made such inspec-
tions. Third, the fact that Health Systems produced hospital
documents and employees for depositions without objection was
highly misleading to plaintiff. An objection by Health Systems to
any such request would surely have alerted plaintiff that there was
indeed another defendant.
Finally, we would be remiss not to point out that the hospital
appears not to have been prejudiced by its late addition as a
party. Prejudice and surprise are factors to be considered in
determining whether or not a motion to amend pleadings should be
allowed. Shiner v. Friedman, 161 Ill. App. 3d 73, 80, 513 N.E.2d
862, 865 (1987). The hospital used the same attorneys as Health
Systems and even joined Health Systems in submitting a brief in
this appeal. Under these circumstances, we cannot say that the
trial court's determination to allow plaintiff to join the hospital
as a defendant was an abuse of its discretion.
The final issue we are asked to consider is whether the trial
court erred by not entering a judgment in favor of defendants for
costs but rather ordering each party to pay its own costs. Because
of our determination on the previous issues raised by defendants
and the fact that a new trial must be conducted, we need not
consider this issue.
For the foregoing reasons, the judgment of the circuit court
of Madison County is affirmed.
Affirmed.
KUEHN, P.J., and RARICK, J., concur.
NO. 5-95-0594
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
___________________________________________________________________________
JANET SPURGEON, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Madison County.
)
v. ) No. 89-L-929
)
ALTON MEMORIAL HOSPITAL and ALTON )
MEMORIAL HEALTH SYSTEMS, INC., ) Honorable
) George J. Moran,
Defendants-Appellants. ) Judge, presiding.
___________________________________________________________________________
Opinion Filed: December 30, 1996
___________________________________________________________________________
Justices: Honorable Richard P. Goldenhersh, J.
Honorable Clyde L. Kuehn, P.J.
Honorable Philip J. Rarick, J.
Concur
___________________________________________________________________________
Attorneys Sandberg, Phoenix & von Gontard, P.C., Ronald E. Fox,
for Stephen P. Niemira, One City Centre, 15th Floor, St.
Appellants Louis, MO 63101
___________________________________________________________________________
Attorneys Hoefert & Perica, P.C., 1600 Washington Avenue, Alton,
for IL 62002
Appellee
___________________________________________________________________________