Flavell v. Ripley, 2-92-0732

• Decision Date: 09 August 1993
• Docket Number: No. 2-92-0732,2-92-0732
• Citation: 247 Ill.App.3d 842,617 N.E.2d 1342,187 Ill.Dec. 621
• Parties: , 187 Ill.Dec. 621 Patricia FLAVELL, Court-Appointed Guardian of the Estate and Person of Shelly Tonkovich, a Disabled Person, and Patricia Flavell, Indiv., Plaintiff-Appellee, v. Donald RIPLEY, Defendant-Appellant (Arthur Voss, Defendant).
• Court: United States Appellate Court of Illinois

Page 1342

617 N.E.2d 1342

247 Ill.App.3d 842, 187 Ill.Dec. 621

Patricia FLAVELL, Court-Appointed Guardian of the Estate and Person of Shelly Tonkovich, a Disabled Person, and Patricia Flavell, Indiv., Plaintiff-Appellee, v. Donald RIPLEY, Defendant-Appellant (Arthur Voss, Defendant).

No. 2-92-0732.

Appellate Court of Illinois Second District.

Aug. 9, 1993.

Eugene G. Doherty, Holmstrom & Kennedy, P.C., Gregory P. Guth, Holmstrom & Green, Rockford, for Donald Ripley, Arthur Voss.

Frank A. Perrecone, Lawrence J. Ferolie & Associates, Ltd., Hinshaw & Culbertson, John A. Sandberg, Thomas & Hinshaw, Culbertson, Rockford, for Patricia Flavell.

Justice BOWMAN delivered the opinion of the court:

Defendant, Donald Ripley (Ripley), appeals from an order of the circuit court of Winnebago County denying his motion to reduce a judgment secured against him by plaintiff, Patricia Flavell (Flavell). It appears from the record that the trial court denied the motion because it was not timely filed.

Defendant brought his motion pursuant to section 2-1205.1 of the Code of Civil Procedure (Code) (Ill.Rev.Stat.1991, ch. 110, par. 2-1205.1). Section 2-1205.1 provides, in part, as follows:

"In all cases on account of bodily injury or death or physical damage to property, based on negligence, or product liability based on strict tort liability, to which Section 2-1205 does not apply, the amount in excess of $25,000 of the benefits provided for medical charges, hospital charges, or nursing or caretaking charges, which have been paid, or which have become payable by the date of judgment to the injured person by any other insurance company or fund in relation to a particular injury, shall be deducted from any judgment. Provided, however, that:

(1) Application is made within 30 days to reduce judgment." Ill.Rev.Stat.1991, ch. 110, par. 2-1205.1.

The relevant facts indicate that plaintiff's ward was a passenger in an automobile driven by defendant, Arthur Voss (Voss), westbound on Rockton Road in Winnebago County, Illinois. Defendant Ripley was driving his vehicle westbound on Rockton Road some distance ahead of the Voss vehicle. Karyn S. Rossi (Rossi) and Michael P. Storms (Storms) were bicyclists riding on the north side of Rockton Road in the vicinity of the occurrence. As the Ripley and Voss vehicles approached an intersection, Ripley's vehicle either stopped or substantially reduced its speed. Voss lost control of his vehicle as it neared the Ripley vehicle and thereafter struck a utility pole at the side of the road. The ward was seriously injured as a result of the Voss vehicle striking the utility pole.

Flavell brought suit on behalf of the ward and individually under the family expense act (Ill.Rev.Stat.1987, ch. 40, par. 1015). Voss, Ripley, Rossi, and Storms were named as defendants. Voss and Ripley filed cross-claims against each other for contribution. The court granted summary judgment motions dismissing Rossi and Storms from the lawsuit.

The cause proceeded to trial against Ripley and Voss on December 11, 1990. On December 19, 1990, the jury returned verdicts finding in favor of plaintiff and against defendant Ripley and fixing damages at $500,000 in favor of the ward, and $67,974.40 in favor of Flavell under the family expense act. The jury returned a verdict in favor of defendant Voss and against plaintiff. On January 10, 1991, the court entered judgment on the verdicts.

On January 17, 1991, plaintiff filed a post-trial motion against Voss for judgment notwithstanding the verdict, alternatively for a new trial on damages only, alternatively for a new trial on liability only or on all issues. On January 18, 1991, defendant Ripley filed a post-trial motion requesting a directed finding in his favor, judgment notwithstanding the verdict, a new trial on liability only, or a new trial on all issues.

In ruling on all post-trial motions, the court left standing the amount of damages fixed by the jury in favor of plaintiff but found that the verdict as to liability was against the manifest weight of the evidence. The court thereupon vacated the judgments previously entered on the verdicts finding liability against Ripley and no liability against Voss. The court ordered a new trial on the issue of liability only, encompassing plaintiff's claims against Ripley and Voss as well as the cross-claims between Voss and Ripley.

The second jury trial commenced February 6, 1992. On February 11, 1992, the jury returned verdicts in favor of plaintiff and against both defendants, allocating 75% fault to Voss and 25% fault to Ripley. On February 18, 1992, plaintiff for the first time filed a motion pursuant to section 2-1303 of the Code of Civil Procedure (Ill.Rev.Stat.1989, ch. 110, par. 2-1203) seeking to assess interest retroactive to the original verdict returned on December 19, 1990, as to damages. On February 27, 1992, the court entered judgments on the verdicts returned February 11, 1992, and assessed interest on the verdicts retroactive to February 11, 1992.

On March 17, 1992, defendant Ripley filed a motion for a new trial and, for the first time, a motion for reduction of the judgment entered in favor of Patricia Flavell, pursuant to section 2-1205.1. The court denied all post-trial motions by order entered May 26, 1992, and defendant timely appealed.

Plaintiff asserts on appeal, as she did in the trial court, that Ripley's motion for reduction of her judgment was time barred, not having been filed within the time for filing post-trial motions following the judgment entered on damages after the first trial. The record shows that the section 2-1205.1 motion was filed approximately 15 months after the various other post-trial motions filed by Ripley following the first trial. Plaintiff characterizes the section 2-1205.1 motion as a supplement or amendment to these prior motions. Accordingly, plaintiff urges that the standard of review is whether the trial court abused its discretion in denying Ripley's motion as time barred.

While it is true that a trial court has discretionary power to allow a party to amend or supplement his post-trial motion with additional issues (Frank v. Village of Barrington Hills (1982), 106 Ill.App.3d 747, 751, 62 Ill.Dec. 526, 436 N.E.2d 276), where the facts are basically uncontroverted and the real issue is the trial court's application of the law to the facts, a question of law is presented, and the rule that a court of review may not set aside the trial court's findings unless contrary to the manifest weight of the evidence is inapplicable. (South Suburban Safeway Lines, Inc. v. Regional Transportation Authority (1988), 166 Ill.App.3d 361, 365, 116 Ill.Dec. 790, 519 N.E.2d 1005.) Because the facts before us are uncontroverted and the trial court's ruling was based on application of the meaning of section 2-1205.1 to the facts, we review the issues presented as a matter of law.

Section 2-1205.1 was added to the Code of Civil Procedure by omnibus legislation entitled "An act in relation to the insurance crisis" (Pub. Act 84-1431, art. 6, eff. November 25, 1986). (See Ill.Ann.Stat.,...