Berg v. Allied Sec., Inc., Chicago

• Decision Date: 29 June 1998
• Docket Number: No. 1-96-4199,1-96-4199
• Citation: 697 N.E.2d 769,232 Ill.Dec. 27,297 Ill.App.3d 891
• Parties: , 232 Ill.Dec. 27 Joan BERG, Plaintiff-Appellant, v. ALLIED SECURITY, INC., CHICAGO, an Illinois corporation, and Podolsky and Associates, Inc., Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 769

697 N.E.2d 769

297 Ill.App.3d 891, 232 Ill.Dec. 27

Joan BERG, Plaintiff-Appellant, v. ALLIED SECURITY, INC., CHICAGO, an Illinois corporation, and Podolsky and Associates, Inc., Defendants-Appellees.

No. 1-96-4199.

Appellate Court of Illinois First District, First Division.

June 29, 1998.

Beerman, Swerdlove, Woloshin, Barezky, Becker, Genin & London, Chicago, and Harvey L. Walner & Associates, Ltd., Chicago (Alvin R. Becker, Annette E. Pinhasik, Christopher A. White, of counsel), for Plaintiff-Appellant.

Meachum & Little, Chicago (Robert L. Larsen, of counsel), for Defendant-Appellee Allied Sec., Inc.

Sweeney and Riman, Ltd., Chicago, and Stephen C. Debboli & Associates, Chicago (Mary Jo Connelly, David A. Weber, Stephen C. Debboli, of counsel), for Defendant-Appellee Podolsky & Associates, Inc.

Justice GALLAGHER delivered the opinion of the court:

Plaintiff, Joan Berg, brought a personal injury action against the defendants, Allied Security, Inc. (Allied), and Podolsky & Associates, Inc. (Podolsky). On September 4, 1996, the circuit court granted both defendants' motions for summary judgment. Plaintiff subsequently filed a motion to reconsider, which requested, in the alternative, leave to file a second amended complaint. On October 15, 1996, plaintiff's motion for reconsideration was denied and the court took plaintiff's request for leave to file a second amended complaint under advisement. The court ultimately denied the request on November 21, 1996. Plaintiff filed her notice of appeal on November 26, 1996.

Our initial inquiry concerns whether we have jurisdiction to hear this appeal. Defendants contend that plaintiff's notice of appeal was untimely since there was no legitimate postjudgment motion filed within 30 days of the September 4, 1996 order granting summary judgment, which was a final judgment. Defendants argue that plaintiff's motion for reconsideration was invalid because it did not include any specific grounds that would warrant the court's reversal of its decision, was nothing more than an attempt to stall for time and, therefore, did not extend the time in which to file a notice of appeal. After thoroughly reviewing the record, the briefs and the case law, we have determined that plaintiff's notice of appeal was timely and this court has jurisdiction of this appeal. We conclude that plaintiff's motion to reconsider met the requirements for postjudgment motions as set out by section 2-1203 of the Code of Civil Procedure (735 ILCS 5/2-1203 (West 1994)), thus triggering the extension of time in which to file a notice of appeal.

There are two separate statutes that address posttrial, or postjudgment, motions. Posttrial motions in jury cases are governed by section 2-1202 of the Code of Civil Procedure. 735 ILCS 5/2-1202 (West 1994) (formerly Ill.Rev.Stat.1981, ch. 110, par. 68.1). Posttrial motions in nonjury cases are governed by section 2-1203 of the Code of Civil Procedure. 735 ILCS 5/2-1203 (West 1994) (formerly Ill.Rev.Stat.1981, ch. 110, par. 68.3).

In both jury and nonjury cases, posttrial motions must be filed within 30 days after the entry of judgment. 735 ILCS 5/2-1202(c), 5/2-1203(a) (West 1994); 155 Ill.2d R. 303(a)(1). The parties do not dispute and the supreme court has held that a motion to reconsider a judgment falls within that category of post-judgment motions which must be filed within 30 days after the judgment is entered. See Archer Daniels Midland Co. v. Barth, 103 Ill.2d 536, 83 Ill.Dec. 332, 470 N.E.2d 290 (1984). A timely filed posttrial motion stays enforcement of the judgment. 735 ILCS 5/2-1202(d), 5/2-1203(b) (West 1994). In that instance, the time for appeal does not begin to run until the trial court rules on the postjudgment motion. 155 Ill.2d R. 303(a)(1). While these provisions are similar in both statutes, there are other critical distinctions between the two statutes with respect to the necessity of filing the motion in the first instance, as well as the required contents of the motion.

The statute dealing with posttrial motions in jury cases provides in pertinent part:

§ 2-1202. * * *

(b) Relief desired after trial in jury cases * * * must be sought in a single post-trial motion. * * * 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. Relief sought in post-trial motions may be in the alternative or may be conditioned upon the denial of other relief asked in preference thereto, as for example, a new trial may be requested in the event a request for judgment is denied." (Emphasis added.) 735 ILCS 5/2-1202 (West 1994).

On the other hand, the statute dealing with postjudgment motions in nonjury cases, provides in pertinent part:

§ 2-1203. * * * (a) In all cases tried without a jury, any party may, within 30 days after the entry of the judgment or within any further time the court may allow within the 30 days or any extensions thereof, file a motion for a 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 (West 1994).

Thus, the critical distinctions between the two statutes are that a posttrial motion is optional in a nonjury case, but mandatory in a jury case, and only the motion in a jury case must contain the specific grounds relied upon. See also In re Marriage of Jerome, 255 Ill.App.3d 374, 389, 193 Ill.Dec. 74, 85-86, 625 N.E.2d 1195, 1206-07 (1994) (section 2-1203 of the Code of Civil Procedure governs posttrial motions in nonjury cases and does not mandate the detail as required by section 2-1202 which applies to jury cases).

Section 2-1203 gives a litigant in a nonjury case the right to request that a judge reconsider his ruling; the statute does not impose the additional burden of requiring the litigant to specify the grounds. Had the legislature wanted to require such specificity in posttrial motions filed in nonjury cases, it would have included the language, as it did for the motions filed in jury cases.

This distinction between jury cases and nonjury cases is recognized by Supreme Court Rule 366(b). 155 Ill.2d R. 366(b). In jury cases, the rule states that "[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." 155 Ill.2d R. 366(b)(2)(iii). In nonjury cases, however, the rule merely states that "[n]either the filing of nor the failure to file a post-judgment motion limits the scope of review." 155 Ill.2d R. 366(b)(3)(ii); see also In re Marriage of Steadman, 283 Ill.App.3d 703, 712, 219 Ill.Dec. 258, 265, 670 N.E.2d 1146, 1153 (1996) (in a nonjury proceeding a litigant may forego filing a posttrial motion and may assert as error grounds raised for the first time on appeal). Supreme Court Rule 303, which governs appeals from final judgments, requires that postjudgment motions be timely filed, but is silent as to the contents of such motions. 155 Ill.2d R. 303.

While we realize that the language in Rule 366(b) deals with the court's "scope of review" rather than its "jurisdiction," we deem it incongruous to say that our scope of review is not limited by the existence of a posttrial motion or its contents in a nonjury case, but that, once a postjudgment motion is filed, our jurisdiction is dependent upon its contents. Thus, we conclude that, despite the fact that plaintiff's motion did not contain the specific grounds relied upon for its request for relief, it nonetheless met the requirements of section 2-1203 and was a valid postjudgment motion. Thus, plaintiff's notice of appeal was timely filed within 30 days of the trial court's ruling on the postjudgment motion.

In arriving at our conclusion, we are mindful of the language to the contrary contained in the supreme court cases of Andersen v. Resource Economics Corp., 133 Ill.2d 342, 140 Ill.Dec. 390, 549 N.E.2d 1262 (1990) and Beck v. Stepp, 144 Ill.2d 232, 162 Ill.Dec. 10, 579 N.E.2d 824 (1991). However, with all due respect and deference to the supreme court, we are not bound to follow the dicta of either Andersen or Beck.

We first note that the dicta contained in both Andersen and Beck were expressions of opinion upon points in the cases deliberately passed on by the court; thus, they are properly characterized as judicial dicta rather than mere obiter dicta. Wolf v. Meister-Neiberg, Inc., 194 Ill.App.3d 727, 730, 141 Ill.Dec. 360, 362, 551 N.E.2d 353, 355 (1990), aff'd, 143 Ill.2d 44, 155 Ill.Dec. 814, 570 N.E.2d 327 (1991). The distinction can be critical because obiter dicta, even of the supreme court, while persuasive are not binding, but judicial dicta generally establish binding precedent. See Ko v. Eljer Industries, Inc., 287 Ill.App.3d 35, 41, 222 Ill.Dec. 769, 678 N.E.2d 641 (1997). Therefore, we would normally have to follow the dicta in question because of the general rule that judicial dicta establish binding precedent. The supreme court, however, added a caveat to the general rule when it stated that judicial dicta should be followed "unless found to be erroneous." Cates v. Cates, 156 Ill.2d 76, 80, 189 Ill.Dec. 14, 16, 619 N.E.2d 715, 717 (1993). We, therefore, decline to follow the dicta of Andersen or Beck because we have determined that they are erroneous.

In Andersen, the supreme court stated that a postjudgment motion must (1) include a request for at least one of the forms of relief specified in section 2-1203 and (2) allege grounds that would warrant the granting of the relief requested. Andersen, 133 Ill.2d at 347, 140 Ill.Dec. 390, 549 N.E.2d 1262 (1990). Because the plaintiff's motion in Andersen, which was merely a motion for leave to amend, failed in the first instance to include a request for any of the forms of relief specified in section 2-1203, the...