Bell v. Hill

• Citation: 271 Ill.App.3d 224,207 Ill.Dec. 714,648 N.E.2d 170
• Decision Date: 24 February 1995
• Docket Number: No. 1-92-4123,1-92-4123
• Parties: , 207 Ill.Dec. 714 George BELL, Plaintiff-Appellant, v. Richard HILL, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 170

648 N.E.2d 170

271 Ill.App.3d 224, 207 Ill.Dec. 714

George BELL, Plaintiff-Appellant, v. Richard HILL, Defendant-Appellee.

No. 1-92-4123.

Appellate Court of Illinois,

First District, Sixth Division.

Feb. 24, 1995.

Roy P. Amatore, and Kash & Szewczyk, Chicago (Conrad Szewczyk, of counsel), for appellant.

Williams & Montgomery, Chicago (Barry L. Kroll, James K. Horstman, Thomas F. Cameli, Lloyd E. Williams, Jr., of counsel), for appellee.

Justice ZWICK delivered the opinion of the court: ¹

Plaintiff, George Bell, brought suit for damages against defendant, Richard Hill, and Hill's employee, Donald M. Harvey. Plaintiff alleged that Harvey was negligent in driving a tractor-trailer through a Chicago intersection by failing to keep a proper lookout and that the trailer portion of Hill's vehicle struck the car plaintiff was driving. While plaintiff sustained no immediate physical injuries, he claimed to have suffered a heart attack a week later as a result of the accident. A jury returned a verdict in favor of the defendant. Plaintiff appeals pursuant to Supreme Court Rule 301 (134 Ill.2d R. 301).

The following issues are presented for our review: (1) whether the appellate court has proper jurisdiction over the parties' dispute; (2) whether the trial court committed error in refusing to tender plaintiff's Illinois Pattern Jury Instruction on the statutorily imposed standard or care required of a driver in making a "right-turn-on-red"; (3) whether the trial court committed error in allowing defendant's attorney to cross-examine the plaintiff regarding his ownership of an airplane and horses; (4) whether the plaintiff was unfairly prejudiced by defendant's cross-examination regarding an unrelated altercation between the plaintiff and another driver; and, (5) whether defense counsel improperly impeached plaintiff's treating physician.

The traffic accident upon which this suit is based occurred on December 4, 1989. Both plaintiff and Donald Harvey were travelling north on Halsted Street as they approached the intersection at Canalport. Harvey drove a tractor-trailer combination. Harvey made a right turn onto Canalport and the trailer portion of the tractor-trailer struck the left front side of the car plaintiff was driving.

Initially, plaintiff brought suit along with the owner of the car, Cash Registers, Inc. Plaintiff alleged that he was so upset by the incident that he suffered a heart attack a week later. He claimed $27,000 in special damages. Cash Registers, Inc. claimed to have suffered $1,000 in property damage.

During trial plaintiff testified that he stopped at the light and a "semi" pulled up next to his car on the left side. He said that "nothing was transpiring." Then, "all of a sudden," the semi made a right turn from the left lane and struck his car. On cross-examination, plaintiff stated that he had been waiting at the intersection "30, 40 seconds, whatever it takes to change a light." He said that he could not see the color of the light once the truck began its turn.

Fred Cvetko, plaintiff's brother-in-law, testified he was sitting in the passenger side of the car at the time of the collision. According to Cvetko, the plaintiff pulled the car up to the intersection, about two to three feet from the curb, when a truck came up along the left side of the car, very close. Cvetko said that when the light changed, the truck made a right turn and during the turn the rear wheels of the truck collided with the left side of the car.

Donald Harvey, called as an adverse witness during plaintiff's case, testified that he was driving the truck north on Halsted. He stated that Halsted has only a single lane at Canalport, but that there is a bus stop area to the right of the intersection. South of this area is a lane for parked cars. He said he began his turn onto Canalport from as close as possible to the curb so that the trailer portion of the truck would not roll over the curb or strike a pole. He said that there were no vehicles to the right of his truck as he began his right turn. He said that when he began to proceed east on Canalport, he noticed that a compact car had pulled into the bus-stop lane and that the right rear wheels of the trailer and the left-front of the compact car had collided.

The jury returned a verdict in favor of the defendant and the court entered judgment on the verdict on January 23, 1992.

Defendant raises as an initial issue the question of whether the appellate court has proper jurisdiction over this appeal. Defendant claims the appellate court does not have proper jurisdiction because the trial court struck the plaintiff's post-trial motion and this order was never vacated. It is incumbent upon an appellate court to dismiss an appeal where jurisdiction is lacking. Ferguson v. Riverside Medical Center (1985), 111 Ill.2d 436, 440, 96 Ill.Dec. 47, 490 N.E.2d 1252; Hamilton v. Williams (1992), 237 Ill.App.3d 765, 772, 178 Ill.Dec. 214, 604 N.E.2d 470.

It is necessary at this juncture to review the post-trial proceedings. Plaintiff filed his post-trial motion directed against the judgment on February 24, 1992, within 30 days of the entry of judgment on January 23, 1992. The motion was continued from time to time until June 22, 1992, when, for reasons not appearing in the record, the motion was "stricken." The plaintiff, undeterred, set the motion for hearing on July 23, 1992. On this day the trial court continued the matter. The defendant filed a response to plaintiff's post-trial motion on August 5, 1992, and argued its merits before the trial court on September 9, 1992. Defendant, on September 28, 1992, filed a memorandum of law again addressing the merits of plaintiff's arguments. The case was again continued and both sides appeared for hearing on October 6, 1992. At that time the court denied plaintiff's request for post-trial relief. Plaintiff filed a notice of appeal within 30 days, on November 5, 1992.

An appeal from a final judgment is perfected when a timely notice of appeal is filed in the circuit court. (134 Ill.2d R. 301, 303.) No other step is jurisdictional. (People ex rel. Anders v. Burlington Northern, Inc. (1975), 31 Ill.App.3d 1001, 1003, 335 N.E.2d 102.) While a notice of appeal must ordinarily be filed within the 30 days that follow the entry of a final judgment, Supreme Court Rule 303(a)(1) extends the time for filing a notice of appeal by providing that a notice of appeal is timely if filed within 30 days after the entry of an order disposing of a post-trial motion directed against the judgment. (134 Ill.2d R. 303(a)(1).) Once a trial court rules on the merits of such a motion, the 30-day period for filing the notice of appeal commences to run. (Bell Federal Savings & Loan Association v. Bank of Ravenswood (1990), 203 Ill.App.3d 219, 224, 148 Ill.Dec. 559, 560 N.E.2d 1156.) The circuit court loses jurisdiction when 30 days pass from the time final judgment is entered without a post-trial motion directed against the judgment being filed (Fox v. Department of Revenue (1966), 34 Ill.2d 358, 215 N.E.2d 271), when 30 days pass from the time the court disposes of such a timely-filed post-trial motion (Sears v. Sears (1981), 85 Ill.2d 253, 259, 52 Ill.Dec. 608, 422 N.E.2d 610) or when a notice of appeal is timely filed (City of Chicago v. Myers (1967), 37 Ill.2d 470, 472, 227 N.E.2d 760), whichever comes first.

The case of Yazzin v. Meadox Surgimed, Inc. (1991), 224 Ill.App.3d 288, 166 Ill.Dec. 575, 586 N.E.2d 533, presents facts similar to those now at issue. In Yazzin, the plaintiff-appellant did not move to vacate the trial court's order "striking" her timely-filed post-trial motion. Instead, she filed, six days later but more than 30 days after the entry of final judgment, a "Re-Notice of Motion." A hearing was held on the re-noticed motion and the court entered an order denying relief. The plaintiff then filed a notice of appeal within 30 days. The appellate court determined that it did not have proper jurisdiction over the case because the notice of appeal was not brought within 30 days of the final judgment and because the extension of time for filing the notice of appeal provided by Rule 303(a)(1) did not apply to the stricken post-trial motion. See Yazzin, 224 Ill.App.3d at 291, 166 Ill.Dec. 575, 586 N.E.2d 533.

In both Yazzin and in this case the plaintiffs' timely motions seeking post-trial relief were stricken by the court more than 30 days after the court had entered a final order. An application of Yazzin to the present facts leads, therefore, to the same result.

Although we find the trial court lost jurisdiction 30 days after entry of final judgment, we note that jurisdiction may be revested by the parties' active participation in proceedings which are inconsistent with the circuit court's prior order. (People v. Kaeding (1983), 98 Ill.2d 237, 74 Ill.Dec. 509, 456 N.E.2d 11; Gentile v. Hansen (1984), 131 Ill.App.3d 250, 86 Ill.Dec. 515, 475 N.E.2d 894.) Unlike in Yazzin, the plaintiff in this case has raised the revestment doctrine and the record affirmatively supports its application. (See Yazzin, 224 Ill.App.3d at 291, 166 Ill.Dec. 575, 586 N.E.2d 533.) As we have indicated, the defendant filed a response to plaintiff's post-trial motion on August 5, 1992, and argued its merits before the trial court. Defendant further participated on September 28, 1992, by filing a memorandum of law again addressing the merits of plaintiff's post-trial arguments. Because the parties actively participated in the trial court proceedings after the circuit court's jurisdiction had ended, we find jurisdiction to have revested in the circuit court. Plaintiff subsequently filed a timely notice of appeal. We therefore reject defendant's jurisdictional challenge and turn to the merits of plaintiff's appeal.

Plaintiff argues that the trial court's refusal to tender to the jury an instruction based upon the language of Illinois Pattern Jury...