Cardona v. Del Granado

• Decision Date: 19 November 2007
• Docket Number: Nos. 1-07-0942, 1-07-0943.,s. 1-07-0942, 1-07-0943.
• Citation: 316 Ill.Dec. 601,879 N.E.2d 989,377 Ill. App.3d 379
• Parties: Rosa CARDONA, individually, and as a mother and next friend of Filiberto Cardona, a minor, Plaintiff-Appellant-Cross-Appellee, v. Dr. Alfonso DEL GRANADO, Defendant-Appellee-Cross-Appellant.
• Court: United States Appellate Court of Illinois

879 N.E.2d 989

377 Ill. App.3d 379

316 Ill.Dec. 601

Rosa CARDONA, individually, and as a mother and next friend of Filiberto Cardona, a minor, Plaintiff-Appellant-Cross-Appellee, v. Dr. Alfonso DEL GRANADO, Defendant-Appellee-Cross-Appellant.

Nos. 1-07-0942, 1-07-0943.

Appellate Court of Illinois, First District, First Division.

November 19, 2007.

David A. Novoselsky and Leslie J. Rosen, Novoselsky Law Offices, Chicago, for Appellant-Cross-Appellee.

Robert Marc Chemers, Brian C. Rocca, Scott L. Howie, and John J. Beribak, Pretzel & Stouffer Chartered, Chicago (Robert Marc Chemers and Scott L. Howie, of counsel), for Appellee-Cross-Appellant.

Justice WOLFSON delivered the opinion of the court:

Following a trial on the plaintiff's medical malpractice complaint, the jury returned a verdict for the plaintiff, awarding $300,000 for future medical expenses and no other damages. The plaintiff filed a motion requesting a new trial on damages only. The trial court sua sponte ordered a new trial on all issues, including liability and damages. Neither side is happy with that decision. Both appeal it.

Plaintiff contends the court lacked subject matter jurisdiction to order a new trial where neither party requested one. Defendant contends the court abused its discretion in ordering a new trial and should have let the original verdict stand. We affirm the trial court's grant of a new trial on all issues.

FACTS

The plaintiff, Rosa Cardona, filed a medical malpractice complaint against defendant Dr. Alfonso Del Granado, on behalf of her disabled son Filiberto Cardona, Jr. Plaintiff alleged defendant's negligence during the birth of her son caused Filiberto to sustain moderate to severe mental retardation. As far as we can tell from the record, defendant's experts testified that Filiberto's condition was not caused by any acts or omissions of Dr. Del Granado. It is unclear from this record what evidence was introduced by the plaintiff.

The jury reached a verdict in favor of plaintiff and against defendant, awarding plaintiff $300,000 for the present cash value of future medical expenses. The jury awarded no damages for loss of a normal life, pain and suffering, or the value of future earnings. The trial court entered judgment on the jury's verdict.

Plaintiff filed a post-trial motion seeking a new trial on damages only. Plaintiff contended the jury's failure to award any damages for loss of a normal life in the face of undisputed evidence to the contrary was against the manifest weight of the evidence. Plaintiff did not contest the jury's failure to award damages for pain and suffering or loss of future earnings. In defendant's response, he argued the jury's verdict should stand because the damage award was consistent with the evidence at trial. As a fallback, he argued a new trial on damages alone would be inappropriate because the issues of liability and damages were inextricably intertwined.

The trial court denied plaintiff's motion for a new trial on damages only, vacated the judgment order against defendant, and granted a new trial on all issues, including liability and damages. The court said:

"The Court feels that the issues are intertwined. The Court feels that the verdict was a compromised verdict, and at this time the order is that there be a new trial on all issues."

Plaintiff moved to amend the court's ruling nunc pro tunc to have the order indicate plaintiff's post-trial motion was denied. Defendant filed a motion for reconsideration asking the court to reconsider its order granting a new trial and affirm its order entering judgment on the jury verdict. The court allowed plaintiff's motion and denied defendant's motion. Following argument on the motions, the court held:

"[A]t this time, based on the evidence and the law that the Court heard during the trial, this should have been a not guilty. It was not a not guilty. If the jury found for the plaintiff, the jury absolutely should have found for loss of a normal life. It did not.

The Court believes, based on the verdict of the jury and the evidence that was heard, that this was a compromised verdict where the issues of damage and liability are incompliant [sic]."

In her appeal, plaintiff contends the court lacked subject matter jurisdiction to order a new trial on all issues because plaintiff never sought such relief in her post-trial motion and defendant never filed a cross-post-trial motion.

In his appeal, the defendant contends the court abused its discretion in ordering a new trial where the verdict was consistent with the evidence.

DECISION

I. Subject Matter Jurisdiction—Plaintiff's Appeal

The plaintiff contends a trial court does not have jurisdiction to sua sponte order relief from a jury verdict or go beyond the relief sought by the parties in a post-trial motion. The trial court's subject matter jurisdiction over the proceedings is an issue of law which we review de novo. In re Estate of Ahern, 359 Ill.App.3d 805, 809, 296 Ill.Dec. 240, 835 N.E.2d 95 (2005).

Plaintiff relies on section 2-1202 of the Code of Civil Procedure, which provides that a post-trial motion for new trial "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* * * The Court must rule upon all relief sought in all post-trial motions." 735 ILCS 5/2-1202(b), (f) (West 2004).

We note section 2-1202(e) is directed at a party who fails to seek a new trial in its post-trial motion. The section provides that party "waives the right to apply for a new trial." (Emphasis added.) 735 ILCS 5/2-1202(e) (West 2004). It does not say the trial court lacks authority to grant whatever relief it believes appropriate. The defendant did not want a new trial; he was satisfied with the jury's verdict.

We do not agree that section 2-1202 limits the trial court's authority to order a new trial on all issues, whether or not a party requests such relief.

In Freeman v. Chicago Transit Authority, 33 Ill.2d 103, 210 N.E.2d 191 (1965), the trial court on its own motion set aside the special finding of the jury on the ground that it was against the manifest weight of the evidence. The court then entered judgment on the verdicts. The supreme court held it was within the trial court's authority to do so. Freeman, 33 Ill.2d at 105-106, 210 N.E.2d 191. The court rejected the notion that section 68.1(2) of the Civil Practice Act (the predecessor to section 2-1202) barred a trial judge from considering any grounds not raised by a party in its written post-trial motion:

"While the section thus confines a litigant, upon appeal, to those matters specifically raised in the trial court, it contains nothing that suggests an intention to interfere with the power of a trial court to act upon its own motion.

The function of a trial judge in determining whether the answer to a special interrogatory is against the manifest weight of the evidence is analogous to his function in determining whether a general verdict is against the weight of the evidence, and his authority to act upon his own motion should be the same in both instances. Orders granting new trials were not appealable at all until the Civil Practice Act became effective in 1934, and apparently the authority of a trial court to grant a new trial on its own motion has not been considered by this court. But in those jurisdictions that have considered the question the power is firmly established. [Citations.] These decisions are based upon a recognition that the role of a trial judge is not that of a presiding officer or an umpire, and that he is responsible for the justice of the judgment that he enters. The defendant's argument would take away that responsibility and tend to reduce his role to that of an automaton." Freeman, 33 Ill.2d at 105-106, 210 N.E.2d 191.

In Winters v. Kline, 344 Ill.App.3d 919, 280 Ill.Dec. 39, 801 N.E.2d 984 (2003), the plaintiff had filed a post-trial motion seeking a new trial on damages only. Winters, 344 Ill.App.3d at 924, 280 Ill.Dec. 39, 801 N.E.2d 984. As in this case, the defendants filed a response arguing the jury's verdict was consistent with the evidence. Alternatively, defendants contended that if a new trial were ordered, it should be of the entire case on all issues. The defendants did not file a post-trial motion. The trial court granted plaintiff's motion, ordering a new trial on damages only. Defendants filed an emergency motion to reconsider, contending a new trial on damages was inappropriate where the issues of liability and damages were intertwined, liability was contested, and there was evidence of a compromise verdict. Winters, 344 Ill.App.3d at 924, 280 Ill.Dec. 39, 801 N.E.2d 984. The trial court then ordered a new trial on liability and damages. We affirmed that order. We held it was within the trial court's power to modify its interlocutory order, post-trial motion or not. Winters, 344 Ill.App.3d at 927-28, 280 Ill.Dec. 39, 801 N.E.2d 984. There was no abuse of discretion. Winters, 344 Ill.App.3d at 929, 280 Ill.Dec. 39, 801 N.E.2d 984. See Freeman, 33 Ill.2d at 106, 210 N.E.2d 191.

The cases plaintiff cites have little or nothing to do with the facts of this case and do not support her contention regarding the trial court's jurisdiction. See Maloney v. Bower, 113 Ill.2d 473, 478, 101 Ill.Dec. 594, 498 N.E.2d 1102 (1986) (chief judge of circuit court did not have authority to appoint office of public defender to represent indigents in civil contempt proceedings); J.H. v. Ada S. McKinley Community Services, 369 Ill.App.3d 803, 808, 308 Ill.Dec. 255, 861 N.E.2d 320 (2006) (trial court could not sua sponte, without a hearing or notice, appoint a guardian ad litem for competent adult plaintiffs who were represented by counsel); In re Custody of Ayala, 344 Ill.App.3d 574, 585, 279 Ill.Dec. 456, 800 N.E.2d 524 (2003) (cour...