Craigmiles v. Egan, 4-92-0926

• Decision Date: 03 September 1993
• Docket Number: No. 4-92-0926,4-92-0926
• Parties: , 188 Ill.Dec. 672 Vicki CRAIGMILES, Plaintiff-Appellee, v. Gertrude EGAN, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1242

618 N.E.2d 1242

248 Ill.App.3d 911, 188 Ill.Dec. 672

Vicki CRAIGMILES, Plaintiff-Appellee, v. Gertrude EGAN, Defendant-Appellant.

No. 4-92-0926.

Appellate Court of Illinois Fourth District.

Argued May 24, 1993.

Decided Aug. 5, 1993.

Rehearing Denied Sept. 3, 1993.

Karen L. Kendall, Brad A. Elward (argued), Heyl, Royster, Voelker & Allen, Peoria, Scott D. Spooner, Heyl, Royster, Voelker & Allen, Springfield, for defendant-appellant.

Florence L. Bain (argued), Kanoski & Associates, Springfield, for plaintiff-appellee.

Justice GREEN delivered the opinion of the court:

On February 10, 1989, plaintiff Vicki Craigmiles filed a complaint in the circuit court of Sangamon County against defendant Gertrude Egan seeking damages for injuries allegedly resulting from defendant's negligence which caused a collision between automobiles driven by the two parties on February 25, 1987. At the conclusion of the evidence in a jury trial, the court directed a verdict for plaintiff finding defendant 100% liable for plaintiff's injuries. On June 26, 1991, judgment was entered on a verdict for plaintiff for $9,150. The trial court then granted plaintiff a new trial on the issue of damages only, with defendant to be 100% responsible for any damages. After that trial was held, the court entered a judgment on a verdict for plaintiff in the sum of $50,158.37.

On appeal, defendant maintains that the court erred (1) in the first trial in directing a verdict, fixing defendant's negligence as 100% of the cause of plaintiff's injuries, and in granting plaintiff a new trial under the term decreed; and (2) in denying her post-trial motion after the second trial. Plaintiff responds maintaining defendant cannot now contest the grant of the new trial because defendant did not file a timely petition for leave to appeal that order and, if that petition was timely, our denial of the petition foreclosed further consideration of that issue. Plaintiff further asserts that even if the question of the grant of the new trial is before us, the evidence at the first trial supported the direction of the verdict on the question of liability, the determination of 100% fault on defendant, and the grant of a new trial on damages. Plaintiff further maintains that evidentiary errors justified the grant of the new trial and the evidence supported the judgment entered after the second trial.

We determine that the evidence at the first trial supported a directed verdict for the plaintiff with the fault attributed 100% to defendant. However, we conclude that the issue of the propriety of the grant of a new trial on damages only is properly before us and the circuit court erred in granting a new trial to plaintiff. Accordingly, we reverse and remand to the circuit court with directions to reinstate the judgment for plaintiff entered after the first trial. Because of this ruling, we are not required to rule upon the claims of error which concern the retrial. Nevertheless, so that remand to us need not be made if we are wrong on the question of the grant of the new trial, we state that we find no reversible error arising from the second trial.

The most difficult questions in the case arise from plaintiff's assertion that any error in the grant of a new trial is not before us. Accordingly, we consider this issue first. In Ford v. Narup (1962), 38 Ill.App.2d 245, 187 N.E.2d 10, the then Fourth District Appellate Court held that in order to preserve the question of the propriety of the grant of a new trial in a civil case, a party objecting to it must seek leave to appeal the order granting the new trial. Plaintiff maintains defendant did not timely do so here. Plaintiff further points out that even if defendant's request was timely, we denied the request. (Craigmiles v. Egan (Feb. 5, 1992, 4th Dist. Gen. No. 4-91-0735) (order).) In Robbins v. Professional Construction Co. (1978), 72 Ill.2d 215, 20 Ill.Dec. 577, 380 N.E.2d 786, the supreme court held that a party seeking to attack the grant of a new trial after the appellate court had denied leave to appeal from that order and after the new trial had taken place was barred from raising that issue.

At all times pertinent, Supreme Court Rule 306(a)(1) has provided that appeal from an order in a civil case granting a new trial may be taken to the appellate court upon leave granted by that court upon a petition filed in that court "in accordance with the requirements for briefs within 30 days after the entry of the order." (Emphasis added.) (134 Ill.2d R. 306(a)(1).) Supreme Court Rule 306(e) then states that time limit "may be extended upon notice and motion, accompanied by an affidavit showing good cause, filed before expiration of the original or extended time." (134 Ill.2d R. 306(e).) Plaintiff asserts that the following sequence of events indicates that defendant's petition for leave to appeal from the grant of the new trial on damages only was untimely: On June 26, 1991, a judgment was entered on the verdict in the first trial; on July 23, 1991, plaintiff's motion for a new trial as to damages was on file; on July 24, 1991, defendant's motion for new trial was on file; on August 20, 1991, a docket entry shows plaintiff's motion was allowed; and on September 10, 1991, a docket entry was made stating as follows:

"Docket entry of August 20, 1991 consolidated with docket entry of this date. Plaintiff's motion for a new trial is allowed as to damages only and denied in all other respects. Plaintiff's motion for punitive damages included in motion for new trial denied. Defendant's claim for setoff allowed as to the amount paid to plaintiff by defendant prior to trial. Defendant's post-trial motion denied in all respects."

To continue this sequence of events, on October 10, 1991, the petition was filed in the appellate court seeking an extension of time to file petition for leave to appeal; on October 10, 1991, the appellate court granted defendant an extension of time to file a petition for leave to appeal until January 15, 1992; on January 15, 1992, a petition for leave to appeal was filed in the appellate court; and on February 5, 1992, the appellate court denied defendant leave to appeal. Craigmiles v. Egan (Feb. 5, 1992, 4th Dist. Gen. No. 4-91-0735) (order).

Plaintiff correctly points out that under Supreme Court Rule 306, petitions for leave to appeal from an order granting a new trial or requests in the appellate court for extension of the time for filing must be filed within 30 days of the entry of the order granting a new trial. (Odom v. Bowman (1987), 159 Ill.App.3d 568, 110 Ill.Dec. 945, 511 N.E.2d 1265; Buckland v. Lazar (1986), 145 Ill.App.3d 436, 99 Ill.Dec. 519, 495 N.E.2d 1254.) Plaintiff contends that the purported allowance of plaintiff's motion for a new trial on August 20, 1991, started the running of the 30-day period of Rule 306(a)(1), and that period had expired long before defendant filed a motion in this court for an extension.

Plaintiff's theory of the expiration of the 30-day period requires careful consideration. On August 20, 1991, when the docket entry indicating allowance of plaintiff's motion was entered, defendant's motion for a new trial was pending. The court made no reference to any ruling on it until the docket entry of September 10, 1991. Had the court allowed defendant's motion for a new trial, the trial would have included the question of liability. Thus, the court's ruling upon whether a new trial should be granted and, if so, the issue to be tried was incomplete at the time of the August 20, 1991, docket entry. In recognition of this problem, the circuit court phrased its August 20 order in such a way as to make a complete ruling. We hold that the 30-day period of Rule 306(e) began to run on September 10, 1991, and defendant's petition for extension of time was filed within that period. Accordingly, a valid petition for leave to appeal was ultimately filed. We need not decide whether Ford is still the law or whether a failure to seek leave to appeal would have waived any error in the grant of the new trial.

We next consider whether our prior refusal to grant defendant leave to appeal from the order granting a new trial on the question of damages only is to be given res judicata effect, thus prohibiting us from considering that question now. In Robbins, a plaintiff in a wrongful death case received a verdict for what was apparently a small amount for damages. The circuit court granted that plaintiff a new trial on the question of damages. The appellate court denied leave to appeal, and a much larger sum was awarded at the second trial. On appeal to the appellate court, in split decision, that court held that its prior refusal to grant appeal from the order granting the new trial on damages precluded raising that issue on appeal after the second trial. Robbins v. Professional Construction Co. (1977), 45 Ill.App.3d 524, 529, 4 Ill.Dec. 169, 173, 359 N.E.2d 1121, 1125.

After granting leave to appeal in Robbins, the supreme court upheld the holding that the denial of leave to appeal the grant of the new trial barred further consideration of that issue. The supreme court pointed out that the defendant, in seeking leave to appeal to the appellate court the order granting a new trial, had failed to follow the requirements of Supreme Court Rule 306 and that the appellate court had "dismissed the appeal." (Robbins, 72 Ill.2d at 219, 20 Ill.Dec. at 578, 380 N.E.2d at 787.) The appellate court opinion had indicated that it denied the petition for leave to appeal. (Robbins, 45 Ill.App.3d at 529, 4 Ill.Dec. at 173, 359 N.E.2d at 1125.) In any event, the supreme court upheld the appellate court's refusal to consider the propriety of the grant of the new trial. The court reasoned that if further consideration of the grant of a new trial were permitted, Supreme Court Rule 306(a)(2) (58 Ill.2d R. 306(a)(2)) would bring up all of the rulings of the trial court...