Chand v. Schlimme

• Decision Date: 26 September 1990
• Docket Number: No. 69139,69139
• Citation: 138 Ill.2d 469,563 N.E.2d 441,150 Ill.Dec. 554
• Parties: , 150 Ill.Dec. 554 Manju M. CHAND, Special Adm'r for the Estate of Parvez Chand, Appellee, v. Ronald H. SCHLIMME et al., Appellants.
• Court: Illinois Supreme Court

Page 441

563 N.E.2d 441

138 Ill.2d 469, 150 Ill.Dec. 554

Manju M. CHAND, Special Adm'r for the Estate of Parvez Chand, Appellee, v. Ronald H. SCHLIMME et al., Appellants.

No. 69139.

Supreme Court of Illinois.

Sept. 26, 1990.

As Modified on Denial of Rehearing

Nov. 30, 1990.

Tressler, Soderstrom, Maloney & Priess, Wheaton (Robert S. Soderstrom, Francis A. Spina and David W. Groundwater, of counsel), for appellants.

Kujawski, Rosen & Faerber, P.C., Belleville (Fritz G. Faerber, of counsel), for appellee.

Justice RYAN delivered the opinion of the court:

We allowed defendants' petition for leave to appeal from the ruling of the appellate court which, in an unpublished Rule 23 order (107 Ill.2d R. 23), reversed the trial court and vacated its order granting defendants' motion for judgment notwithstanding the verdict. (184 Ill.App.3d 1112 (unpublished order under Supreme Court Rule 23).) The jury, following trial of plaintiff's wrongful death action brought in the circuit court of St. Clair County, awarded plaintiff $322,000 in damages. Because we conclude that the appellate court did not have jurisdiction to disturb the circuit court's order, we must reverse the appellate court, which has the effect of reinstating the lower court's original post-judgment order.

This lawsuit arose out of a fatal accident that occurred on June 15, 1984. On that day, Parvez Chand, plaintiff's decedent, was travelling alone in an automobile, heading eastbound on Illinois Route 13 in St. Clair County. Defendant Schlimme was proceeding westbound along the same highway in a 60-foot-long, 70,000-pound tractor/trailer. Stewart Koesterer was travelling behind Schlimme in a similar vehicle at the time of the accident. Schlimme and Koesterer were the only eyewitnesses to the accident apart from the decedent, who died shortly after the collision.

Schlimme testified that, while travelling 40 miles per hour in the westbound lane, he noticed Chand's car in the eastbound lane, about 1,500 feet away, begin to unexplainably drift into the westbound lane. Schlimme stated that, perceiving a potential problem, he began to slow down, by taking his foot off of the accelerator, and started to move his truck to the right, eventually entering the shoulder of the westbound lane. Schlimme estimated that at the time he entered the shoulder, Chand's car was 300 feet away. Chand's car and Schlimme's truck continued to converge toward a point on the shoulder of the westbound lane until they ultimately collided there.

Schlimme further testified that, at the time the vehicles were 300 feet apart, he was travelling 40 miles per hour, but he could not estimate the speed of the car. Schlimme estimated that he could have stopped his truck within 200 feet, although he was not sure about this. He also stated that there were no other vehicles in the oncoming eastbound lane, but he did not attempt to move his truck into that lane to avoid the collision. Finally, Schlimme testified that he did not flash his lights or sound his horn, and he did not apply his brakes until immediately before impact.

Koesterer testified that he was travelling in the same direction as Schlimme. Koesterer stated that his rate of speed was between 50 and 60 miles per hour, and he was between 120 and 160 feet behind Schlimme. Koesterer stated that he thought Chand's car was in the westbound lane for between 5 and 10 seconds before impact, that he saw Schlimme's truck move toward the shoulder before impact and, at the time of the collision, Schlimme's truck was almost entirely on the shoulder of the westbound lane, beside which is a ditch and embankment that could have caused the truck to turn over if it would have entered it.

Koesterer further testified that Schlimme did not attempt to maneuver his truck into the eastbound lane, and he did not see Schlimme's brake lights go on, or hear Schlimme's horn sound, and Koesterer did not sound his own. Koesterer stated that Schlimme could have turned his truck into the eastbound lane, but he also stated that such a maneuver would be unusual, and that Koesterer would not have himself done so in that situation. He also stated that sudden turns create a risk that a truck will turn over or jackknife.

Michael Kovak testified that he followed Koesterer in the westbound lane. Kovak did not see the collision, but he encountered the scene shortly thereafter. Kovak testified that as he approached the accident scene, he saw Chand's car coming toward him, travelling backward, and that he saw Koesterer's truck turn into the eastbound lane to avoid hitting Chand, who lay in the road after having been ejected from his vehicle as a result of the collision.

Several other witnesses testified as to the condition of the accident scene. Particularly, Illinois State Trooper James Hall testified that road and weather conditions at the time of the accident were good. He further stated that the "point of maximum engagement," determined from marks on the roadway, was not entirely, but was substantially, on the right-hand shoulder. Trooper Hall also estimated that Schlimme's truck could have stopped within between 88 and 126 feet.

After hearing this and other evidence, the jury returned a verdict in favor of plaintiff in the amount of $1.61 million. The jury, however, reduced this amount by 80%, representing its determination of plaintiff's decedent's comparative negligence. The trial court then entered judgment on the jury's verdict in the amount of $322,000 on November 2, 1987.

On February 10, 1988, having been granted an extension of time, defendants filed a timely post-trial motion in which they asked the circuit court to set aside the jury's verdict, vacate the previously entered judgment and enter judgment in favor of defendants notwithstanding the jury's verdict. In an eight-page order, entered March 18, 1988, the circuit court granted defendants' motion for judgment notwithstanding the verdict. The court concluded that defendant was not negligent and, even if there was a breach of duty, that breach of duty could not have been a proximate cause of Chand's death.

Plaintiff then filed what is labelled a "Motion to Reconsider" on April 4, 1988. On April 15, 1988, plaintiff filed both a "Notice of Appeal" and "Plaintiff's Post-Trial Motion." The circuit court denied plaintiff's April 15, 1988, post-trial motion on May 5, 1988. Plaintiff tried soon thereafter to amend her "Notice of Appeal" in the appellate court to include the circuit court's denial of plaintiff's post-trial motion. The appellate court entered an order on June 7, 1988, denying plaintiff's motion to amend her notice of appeal, stating that "the filing of the notice of appeal from a final judgment completely divests the trial court of jurisdiction." Plaintiff never filed a notice of appeal with the circuit court after the notice of appeal that had been filed on April 15, 1988.

Defendants filed a motion to dismiss plaintiff's appeal, alleging that it was filed prematurely. The appellate court denied this motion in a per curiam order filed August 2, 1988. Defendants also raised this issue during briefing in the appellate court, but that court did not address the issue of jurisdiction in its Rule 23 order, entered July 20, 1989, in which it reversed the circuit court and reinstated the jury's verdict. Defendants again raise the jurisdictional issue in this court. Having reviewed the record in this case, we conclude that appellate jurisdiction is in fact wanting.

Following the circuit court's order granting defendants' motion for judgment notwithstanding the verdict, plaintiff was left with the guidance of the Code of Civil Procedure and supreme court rules to chart her desired course of action in challenging that judgment. Section 2-1202(c) of the Code of Civil Procedure states as follows:

"Post-trial motions must be filed within 30 days after the entry of judgment or 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. A party against whom judgment is entered pursuant to post-trial motion shall have like time after the entry of the judgment within which to file a post-trial motion." (Emphasis added.) (Ill.Rev.Stat.1985, ch. 110, par. 2-1202(c).)

In the present case, defendants filed a timely post-trial motion, that being their motion for judgment notwithstanding the verdict. The circuit court entered judgment on that post-trial motion in favor of defendants. Under section 2-1202(c), plaintiff was then permitted to, and did, on April 15, 1987, file such a post-trial motion. Plaintiff's post-trial motion attacking the circuit court's order granting judgment notwithstanding the verdict was, therefore, timely, and the circuit court properly exercised the jurisdiction it retained over the matter.

The supreme court rules govern the timeliness of plaintiff's appeal. Rule 303 states, in pertinent part, as follows:

"(a) Time; Filing; Transmission of Copy.

(1) Except as provided in paragraph (b) below, the notice of appeal must be filed with the clerk of the circuit court within 30 days after the entry of the final judgment appealed from, or, if a timely post-trial motion directed against the judgment is filed, whether in a jury or a nonjury case, within 30 days after the entry of the order disposing of the last pending post-trial motion.

(2) When a timely post-trial motion has been filed by any party, whether in a jury case or a nonjury case, a notice of appeal filed before the entry of the order disposing of the last pending post-trial motion shall have no effect and shall be withdrawn by the party who filed it, by moving for dismissal pursuant to Rule 309. This is so whether the timely post-trial motion was filed before or after the date on which the notice of appeal was filed. A new notice of appeal must be filed within the prescribed time measured from the entry of the order disposing of the ...