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Heins v. Bolton

Illinois Appellate Court

December 04, 1998


Appeal from Circuit Court of Champaign County No. 94L1512

The opinion of the court was delivered by: Green, Justice


Honorable John G. Townsend, Judge Presiding.

This case arises from a fire on November 25, 1991, in a home owned by plaintiff Michael Heins. On October 31, 1994, plaintiff filed a complaint in the circuit court of Champaign County against Richard Bolton, Jr., d/b/a/ Bolton Chambana Heating and Cooling, contending defendant was negligent in making repairs to the furnace in that house and that negligence was a proximate cause of the fire. After a jury trial on October 23, 1996, the court entered judgment on a verdict in favor of plaintiff in the sum of $45,942.

Plaintiff filed a motion for a new trial as to damages or, in the alternative, to enter a judgment n.o.v. to raise the amount of the damages to $66,627.44. This motion was mailed to the circuit clerk on November 20, 1996, but was not placed on file until November 25, 1996. On December 2, 1996, the court entered such a judgment n.o.v. On Decem- ber 11, 1996, defendant filed a motion to vacate the judgment n.o.v. On December 31, 1996, defendant filed a posttrial motion seeking a new trial. The court heard and denied defendant's motions on January 8, 1997. Defendant has appealed. We affirm.

Defendant maintains the circuit court erred (1) in allowing a judgment n.o.v. for an amount greater than the jury awarded at a time when defense counsel was not present, and (2) in refusing to grant a new trial when the jury verdict was a compromise and when crucial parts of the furnace repaired by defendant were destroyed and unavailable for inspection by defendant's expert. We conclude defendant was not sufficiently injured by any error to require reversal.

The most serious question in this case arises from a motion by plaintiff to strike any request for relief by defendant in its posttrial motions. The motion to strike is based upon a theory, presented by plaintiff, that the circuit court had lost jurisdiction to entertain any request for relief by defendant which was filed more than 30 days after judgment was entered on the jury verdict on October 23, 1996. For reasons we explain, we find that motion without merit. However, that motion calls our attention to the fact that judgment was entered on the jury verdict on October 23, 1996, and plaintiff's successful motion for judgment n.o.v. was not filed in the circuit clerk's office until November 25, 1996, more than 30 days after judgment on the verdict.

We address sua sponte the problem of the timeliness of plaintiff's posttrial motion, because if it was untimely, the circuit court had no jurisdiction to hear the motion. We answer the question by invoking a theory that the Supreme Court of Illinois has expressly declined to pass upon, but which has been approved by the Second and Fifth Districts of the Appellate Court of this state. We hold that when, as here, a posttrial motion is placed in the United States mail and directed to the circuit clerk not more than 30 days after the judgment it attacks, the motion is timely even if actually filed by the clerk of the court at a date more than 30 days after the judgment attacked. Such a rule is known as a "mail-box" rule.

Before further Discussion of the "mail-box" rule, we explain why plaintiff's theory that defendant's posttrial motion was not timely is wrong if plaintiff's motion for judgment n.o.v. was timely. Plaintiff disregards section 2-1202(c) of the Code of Civil Procedure (Code), which provides that a party has 30 days after the entry of judgment to file a posttrial motion and "[a] party against whom [such a motion is granted] shall have like time after the entry of [that] judgment within which to file a post-trial motion." 735 ILCS 5/2-1202(c) (West 1996).

Judgment was entered against defendant on plaintiff's posttrial motion on December 24, 1996. Thus, defendant's posttrial motion of December 31, 1996, clearly met the deadline of section 2-1202(c). Plaintiff's motion to strike is denied.

Neither the Code nor supreme court rules give us a ready answer as to whether the "mail-box" rule applies to filing of posttrial motions. Supreme Court Rule 12(c) states "[s]ervice by mail is complete four days after mailing." 145 Ill. 2d R. 12(c). Rule 12(c) appears to be directed to the service of notice upon parties and not the filing dates for pleadings. See Bernier v. Schaefer, 11 Ill. 2d 525, 144 N.E.2d 577 (1957). Supreme Court Rule 373 states that, in the reviewing courts, papers filed after the due date will be deemed filed upon date of mailing. 155 Ill. 2d R. 373.

In Harrisburg-Raleigh Airport Authority v. Department of Revenue, 126 Ill. 2d 326, 533 N.E.2d 1072 (1989), the Supreme Court of Illinois held that a notice of appeal filed with the circuit court after the due date but mailed before the due date was timely. That court drew analogy to the pro-mailing rule of Supreme Court Rule 373, but that opinion expressed an unwillingness to give an opinion as to whether the rule should be applied to other documents such as posttrial motions.

The Harrisburg-Raleigh opinion explained:

"Since a notice of appeal is filed with the circuit court rather than the 'reviewing court,' Rule 373 is not directly applicable. But it evinces a general policy of equating mailing and filing dates, particularly with respect to appellate practice. The reason for this is that Rule 373 'was designed to make it unnecessary for counsel to make sure that briefs and other papers mailed before the filing date actually reach the reviewing court within the time limit.' (107 Ill. 2d R. 373, Committee Comments, at 476.) A notice of appeal, unlike many other papers filed in the circuit court, is closely related to the appellate process; when timely filed it divests the trial court of jurisdiction and confers jurisdiction upon the appellate court. (Lombard v. Elmore (1986), 112 Ill. 2d 467, 471-72[, 493 N.E.2d 1063, 1065].) It is therefore appropriate that the pro-mailing policy of Rule 373 should be applied to the filing of a notice of appeal under Rule 303(a). Moreover, a liberal pro-mailing policy is more equitable, since it places smaller firms which may lack telefax machines and messenger services on an equal footing with their larger competitors. We express no opinion as to whether the same policy would apply to other papers filed in the circuit court, such as post-trial motions." Harrisburg- Raleigh, 126 Ill. 2d at 341-42, 533 N.E.2d at 1078.

In Harrisburg-Raleigh, the court noted without criticism that in A.S. Schulman Electric Co. v. Village of Fox Lake, 115 Ill. App. 3d 746, 749, 450 N.E.2d 1356, 1358-59 (1983), mailing of a posttrial motion to the clerk of the circuit court within the 30-day period was held to be timely filing. The Harrisburg-Raleigh opinion further stated that while the older practice had deemed papers not properly filed until in the hands of the clerk of the court, "more recent authority suggests that this rule should be modified to take into account the widespread practice of filing documents by mail." Harrisburg-Raleigh, 126 Ill. 2d at 340, 533 N.E.2d at 1078.

The Harrisburg-Raleigh opinion also stressed that, under Supreme Court Rule 373, filing deadlines for filing in the appellate court were met by placing the documents to be filed in the mail and that notices of appeal, although filed in the trial court, did involve appeal. Nevertheless, we do not deem the Harrisburg-Raleigh opinion to be intended to discourage appellate courts from permitting a posttrial motion to be timely if placed in the United States mail in an envelope directed to the circuit clerk within the 30-day period.

In addition to the action of the second district in Schulman, the fifth district in In re Marriage of Morse, 143 Ill. App. 3d 849, 852, 493 N.E.2d 1088, 1090 (1986), has also held that a posttrial motion shown to have been mailed to the circuit clerk on the last day for filing was timely even though the mailing contained a postmark of one day later than the deadline.

In Pakrovsky v. Village of Lakemoor, 274 Ill. App. 3d 515, 517, 654 N.E.2d 1081, 1082 (1995), the second district applied the precedent of Schulman and Morse to determine that a rejection by a party of an arbitration award was timely when mailed to the clerk before the expira- tion of the statutory time for filing even if the document was not received by the clerk until after the period had elapsed. The Pakrovsky opinion explained the situation there was different than in Wilkins v. Dellenback, 149 Ill. App. 3d 549, 500 N.E.2d 692 (1986), where the court ruled that a petition for relief under section 2-1401 of the Code (735 ILCS 5/2-1401 (West 1996)) was not timely filed when mailed prior to the expiration of the time limit but not received by the circuit clerk within that timespan.

Even though nine years ago the Supreme Court of Illinois opted not to take a position as to whether the "mail-box" rule is applicable to the filing of posttrial motions, we find nothing in that court's opinion that would make our following of the second and fifth districts inappropriate. Accordingly, because of the logic of the "mail-box" filing theory in regard to posttrial motions, we hold that plaintiff's posttrial motion here was timely filed.

We consider next the procedure giving rise to plaintiff receiving a larger judgment than was awarded by the jury. On October 23, 1996, after entering judgment on the jury verdict, the court entered an order that stated, "cause allotted for any posttrial motion for December 2, 1996." On November 25, 1996, plaintiff filed his motion seeking a new trial as to damages or entry of a judgment n.o.v. in the larger sum. Plaintiff failed to give defendant properly addressed notice of his filing of his posttrial motion.

The order of the court fixing a day certain for the hearing of any posttrial motions was desirable procedure. However, Supreme Court Rule 104(b) provides that "written notice" filed with the circuit clerk shall contain "a certificate of counsel or other proof that copies have been served on all parties who have appeared" and not defaulted. 134 Ill. 2d R. 104(b). Here, where no counsel appeared for defendant, a better practice would have been for the court to have checked to see if the defense had proper notice of the filing of the posttrial motion. As it turned out here, no such notice had been given to a proper address. However, under the particular facts of this case, we find no substantial prejudice to defendant occurred.

At the January 8, 1997, hearing, the court gave the defense an opportunity to argue the propriety of the judgment n.o.v. The record indicates various confessions by the defense that the evidence was fairly conclusive that if entitled to recover, plaintiff was entitled to damages of approximately the amount of the judgment n.o.v. Indeed, the fact was an argument used by the defense to indicate the verdict was a compromise verdict entitling defendant to a new trial on all issues. The other argument for a finding of a compromise verdict was a note sent by the jury to the court indicating its deadlock. However, the note also indicated the jurors had decided on liability and were at odds on damages.

The foregoing record shows the circuit court properly entered a judgment n.o.v. enlarging the damage award to $66,627.44. The record also indicates the court did not abuse its discretion in ruling that the original verdict was not shown to be a compromise verdict.

Prior to trial, defense counsel filed a motion in limine to bar plaintiff's evidence concerning the condition of the furnace after the fire. Counsel noted Ronald Lobodzinski, an expert hired by plaintiff, had formed the opinion defendant had negligently wired the fan limit switch of the furnace, causing the furnace to overheat and that major portions of the furnace had been discarded. The defense claimed the only information available was a chart made by that witness and that the defense would be unable to fully counter his testimony because of the discarding of parts of the furnace necessary to determine the cause of the fire. However, defendant's expert, James Finneran, did have an opportunity to view all the pictures and diagrams used by Lobodzinski.

The significant factor in this case is that the blame for the destruction of the evidence here cannot be placed upon a party. Rather, personnel from the Urbana fire department removed the blower cage from the furnace, and although Lobodzinski apparently had possession of all the pertinent parts, he testified some were given to people connected with defendant. Accordingly, this case differs from the cases cited by defendant where parties responsible for destruction of evidence were sanctioned by a barring of their witnesses. Graves v. Daley, 172 Ill. App. 3d 35, 526 N.E.2d 679 (1988); Shelbyville Mutual Insurance Co. v. Sunbeam Leisure Products Co., 262 Ill. App. 3d 636, 634 N.E.2d 1319 (1994); American Family Insurance Co. v. Village Pontiac-GMC, Inc., 223 Ill. App. 3d 624, 585 N.E.2d 1115 (1992).

Under these circumstances, the circuit court did not abuse its discretion in refusing to prohibit plaintiff's witness from giving opinions as to the cause of the fire.

For the reasons stated, we affirm.


KNECHT, P.J., concurs.

COOK, J., Dissents.

JUSTICE COOK, Dissenting:

Plaintiff filed a posttrial motion for a new trial solely on the issue of damages or, in the alternative, for judgment n.o.v. The trial court granted the judgment n.o.v., entering judgment for plaintiff in the amount of $66,627.44. The jury's verdict had been in the amount of $45,942.57.

I question whether the damages in this case were "liquidated," even if defendant did not attempt to dispute the amount. There was damage to this vacant house before the fire. Even though plaintiff's insurer paid $67,937.24 as cost of repairs, the jury was not obligated to agree with that amount. See Branum v. Slezak Construction Co., 289 Ill. App. 3d 948, 952-53, 682 N.E.2d 1165, 1168 (1997). For purposes of Discussion, however, I will assume that the damages were "liquidated."

A judgment n.o.v. is an exceptional thing. A trial court may enter a judgment n.o.v. only when it could have directed a verdict, "only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand." Pedrick v. Peoria & Eastern R.R. Co., 37 Ill. 2d 494, 510, 229 N.E.2d 504, 513-14 (1967).

The trial court could not have directed a verdict in this case. The trial court recognized in its order that there was a factual dispute on the question of liability, and that factual dispute would have prevented any directed verdict. If the court could not have directed a verdict, how could it have entered a judgment n.o.v.? Defendant's answer is that the question of liability was separated from the question of damages when the jury sent the trial court a note advising that it had reached a decision on liability and asking whether the award for damages would have to be in the full amount requested by plaintiff. The trial court, in the absence of the parties, asked who the verdict was for, and the jury replied "plaintiff."

Defendant argues that the jury, therefore, decided the question of liability before it took up the question of damages and could not have compromised liability and damages. It would appear, however, that some jurors voted for liability with the understanding that the amount of damages would be reduced, if that were possible. At the time the jury reached a verdict on liability it was questioning whether it had to award the full amount of damages. Well before that the jury had indicated that it could not reach a verdict, and in response the trial court gave the deadlocked jury instruction.

The amount of a verdict is generally within the discretion of the jury. However, a court may order a new trial if the damages are manifestly inadequate or if it is clear that proved elements of damages have been ignored or if the amount awarded bears no reasonable relationship to the loss suffered by the plaintiff. Hollis v. R. Latoria Construction, Inc., 108 Ill. 2d 401, 407, 485 N.E.2d 4, 6 (1985). The new trial may be solely on the issue of damages, but only if the questions of damages and liability are so separate and distinct that a new trial solely on damages is not unfair to the defendant, and there is no suggestion that the error that resulted in the jury's awarding inadequate damages also affected its verdict on the question of liability, such as by the jury entering a verdict that compromised on liability and damages. Hollis, 108 Ill. 2d at 408, 485 N.E.2d at 7; Balestri v. Terminal Freight Cooperative Ass'n, 76 Ill. 2d 451, 456, 394 N.E.2d 391, 393 (1979); Tindell v. McCurley, 272 Ill. App. 3d 826, 830, 651 N.E.2d 713, 717 (1995). At least a "suggestion" of compromise exists here.

If a court cannot grant a new trial solely on damages in a particular case, it certainly cannot grant a judgment n.o.v. increasing the damage award, as the trial court did here. See Svetanoff v. Kramer, 80 Ill. App. 3d 575, 579, 400 N.E.2d 1, 3 (1979). I would offer plaintiff the following options: (1) accept judgment in the amount of the jury verdict, $45,942.57, or (2) accept a new trial on both liability and damages. See J.I. Case Co. v. McCartin-McAuliffe Plumbing & Heating, Inc., 118 Ill. 2d 447, 456-57, 516 N.E.2d 260, 264 (1987) (discussing additur).I disagree with the majority that the trial court cured any error in notice by giving "the defense an opportunity to argue the propriety of the judgment n.o.v." during the argument on defendant's motion to vacate. Slip op. at 8. Defendant expected to argue the motion to vacate on January 8, 1997, not the merits of the motion for judgment n.o.v. Defendant never had an opportunity to respond in writing to the motion for judgment n.o.v. The trial court should have granted the motion to vacate and allowed the parties to proceed from that point.

Finally, it was improper for the trial court to ask the jury for whom it had ruled on liability. It was also improper for the trial court to ask the jury for its vote breakdown, even though it did not inform the attorneys what that breakdown was. See Illinois Pattern Jury Instruction, Civil No. 1.05, Notes on Use, at 17 (3d ed. 1995) ("after cautioning them not to reveal the numerical division in the voting or which side has the preponderance"). When the court knows which way the jury is leaning, the court's decision to grant or not grant a mistrial becomes open to criticism. Further, a trial court generally should not communicate with the jury unless counsel are present. Gale v. Hoekstra, 59 Ill. App. 3d 400, 407, 375 N.E.2d 456, 462 (1978).


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