Arient v. Shaik

• Decision Date: 12 June 2015
• Docket Number: No. 1–13–3969.,1–13–3969.
• Parties: Scott ARIENT, Plaintiff–Appellant, v. Nazeer SHAIK, Dr. Shak's and Scott's Inc. and Scott's Pet Shop Inc., Defendants–Appellees.
• Court: United States Appellate Court of Illinois

35 N.E.3d 117

Scott ARIENT, Plaintiff–Appellant

v.Nazeer SHAIK, Dr. Shak's and Scott's Inc. and Scott's Pet Shop Inc., Defendants–Appellees.

No. 1–13–3969.

Appellate Court of Illinois, First District, Fifth Division.

June 12, 2015.

Zane D. Smith, of Zane D. Smith & Associates, Chicago, and S.A. Genson, of Law Office of Sheila A. Genson, Ltd., Schaumburg, for appellant.

Thomas E. Patterson and Michael D. Haeberle, both of Patterson Law Firm, LLC, Chicago, for appellees.

OPINION

Justice GORDON

delivered the judgment of the court, with 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 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.

¶ 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 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?

DEFENDANT: Yes.

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]?

DEFENDANT: Yes.

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:

“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 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.”

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, 379 Ill.Dec. 823, 7 N.E.3d 249

; Luss v. Village of Forest Park, 377 Ill.App.3d 318, 322, 316 Ill.Dec. 169, 878 N.E.2d 1193 (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 analysis that a trial judge would perform. Zurek v. Franklin Park Officers Electoral Board, 2014 IL App (1st) 142618 ¶ 63, 387 Ill.Dec. 208, 22 N.E.3d 90 (citing Khan v. BDO Seidman, LLP, 408 Ill.App.3d 564, 578, 350 Ill.Dec. 63, 948 N.E.2d 132 (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, 361 Ill.Dec. 447, 971 N.E.2d 549

(citing People v. Cardamone, 232 Ill.2d 504, 512, 328 Ill.Dec. 917, 905 N.E.2d 806 (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, 328 Ill.Dec. 256, 904 N.E.2d 18 (2009)

; Cardamone, 232 Ill.2d at 512, 328 Ill.Dec. 917, 905 N.E.2d 806 ) and “ ‘the plain language of the statute is the best indicator of the legislature's intent.’ ” Zurek, 2014 IL App (1st) 142618, ¶ 64, 387 Ill.Dec. 208, 22 N.E.3d 90 (quoting Metzger v. DaRosa, 209 Ill.2d 30, 34–35, 282 Ill.Dec. 148, 805 N.E.2d 1165 (2004) ). “ ‘When the statute's language is clear, it will be given effect without resort to other aids of statutory...