Berg v. Allied Security, Inc.
Case Date: 06/29/1998
Court: 1st District Appellate
Docket No: 1-96-4199
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June 29, 1998 No. 1-96-4199 IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT JOAN BERG, Plaintiff-Appellant, v. ALLIED SECURITY, INC., CHICAGO, an Illinois corporation, and PODOLSKY AND ASSOCIATES, INC., Defendants-Appellees. ) ) ) ) ) ) ) ) ) ) Appeal from the Circuit Court of Cook County No. 92 L 10202 Honorable Arthur A. Sullivan, Jr., Judge Presiding. JUSTICE GALLAGHER delivered the opinion of the court: Plaintiff, Joan Berg, brought a personal injury action against the defendants, Allied Security, Inc. (Allied), and Podolsky & Associates, Inc. (Podolsky). On September 4, 1996, the circuit court granted both defendants' motions for summary judgment. Plaintiff subsequently filed a motion to reconsider, which requested, in the alternative, leave to file a second amended complaint. On October 15, 1996, plaintiff's motion for reconsideration was denied and the court took plaintiff's request for leave to file a second amended complaint under advisement. The court ultimately denied the request on November 21, 1996. Plaintiff filed her notice of appeal on November 26, 1996. Our initial inquiry concerns whether we have jurisdiction to hear this appeal. Defendants contend that plaintiff's notice of appeal was untimely since there was no legitimate postjudgment motion filed within 30 days of the September 4, 1996 order granting summary judgment, which was a final judgment. Defendants argue that plaintiff's motion for reconsideration was invalid because it did not include any specific grounds that would warrant the court's reversal of its decision, was nothing more than an attempt to stall for time and, therefore, did not extend the time in which to file a notice of appeal. After thoroughly reviewing the record, the briefs and the case law, we have determined that plaintiff's notice of appeal was timely and this court has jurisdiction of this appeal. We conclude that plaintiff's motion to reconsider met the requirements for postjudgment motions as set out by section 2-1203 of the Code of Civil Procedure (735 ILCS 5/2-1203 (West 1994)), thus triggering the extension of time in which to file a notice of appeal. There are two separate statutes that address posttrial, or postjudgment, motions. Posttrial motions in jury cases are governed by section 2-1202 of the Code of Civil Procedure. 735 ILCS 5/2-1202 (West 1994)(formerly Ill. Rev. Stat. 1981, ch. 110, par. 68.1). Posttrial motions in nonjury cases are governed by section 2-1203 of the Code of Civil Procedure. 735 ILCS 5/2-1203 (West 1994)(formerly Ill. Rev. Stat. 1981, ch. 110, par. 68.3). In both jury and nonjury cases, posttrial motions must be filed within 30 days after the entry of judgment. 735 ILCS 5/2- 1202(c), 5/2-1203(a) (West 1994); 155 Ill. 2d R. 303(a)(1). The parties do not dispute and the supreme court has held that a motion to reconsider a judgment falls within that category of post-judgment motions which must be filed within 30 days after the judgment is entered. See Archer Daniels Midland Co. v. Barth, 103 Ill. 2d 536, 470 N.E.2d 290 (1984). A timely filed posttrial motion stays enforcement of the judgment. 735 ILCS 5/2-1202(d), 5/2-1203(b) (West 1994). In that instance, the time for appeal does not begin to run until the trial court rules on the postjudgment motion. 155 Ill. 2d R. 303(a)(1). While these provisions are similar in both statutes, there are other critical distinctions between the two statutes with respect to the necessity of filing the motion in the first instance, as well as the required contents of the motion. The statute dealing with posttrial motions in jury cases provides in pertinent part: " 2-1202. *** (b) Relief desired after trial in jury cases *** must be sought in a single post-trial motion. *** The post-trial motion 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. Relief sought in post-trial motions may be in the alternative or may be conditioned upon the denial of other relief asked in preference thereto, as for example, a new trial may be requested in the event a request for judgment is denied." (Emphasis added.) 735 ILCS 5/2-1202 (West 1994). On the other hand, the statute dealing with postjudgment motions in nonjury cases, provides in pertinent part: "2-1203. *** (a) In all cases tried without a jury, any party may, within 30 days after the entry of the judgment or within any further time the court may allow within the 30 days or any extensions thereof, file a motion for a rehearing, or a retrial, or modification of the judgment or to vacate the judgment or for other relief." (Emphasis added.) 735 ILCS 5/2-1203 (West 1994). Thus, the critical distinctions between the two statutes are that a posttrial motion is optional in a nonjury case, but mandatory in a jury case, and only the motion in a jury case must contain the specific grounds relied upon. See also In re Marriage of Jerome, 255 Ill. App. 3d 374, 389, 625 N.E.2d 1195, 1206-07 (1994)(section 2-1203 of the Code of Civil Procedure governs posttrial motions in nonjury cases and does not mandate the detail as required by section 2-1202 which applies to jury cases). Section 2-1203 gives a litigant in a nonjury case the right to request that a judge reconsider his ruling; the statute does not impose the additional burden of requiring the litigant to specify the grounds. Had the legislature wanted to require such specificity in posttrial motions filed in nonjury cases, it would have included the language, as it did for the motions filed in jury cases. This distinction between jury cases and nonjury cases is recognized by Supreme Court Rule 366(b). 155 Ill. 2d R. 366(b). In jury cases, the rule states that "[a] party may not urge as error on review of the ruling on the party's post-trial motion any point, ground, or relief not specified in the motion." 155 Ill. 2d R. 366(b)(2)(iii). In nonjury cases, however, the rule merely states that "[n]either the filing of nor the failure to file a post-judgment motion limits the scope of review." 155 Ill. 2d R. 366(b)(3)(ii); see also In re Marriage of Steadman, 283 Ill. App. 3d 703, 712, 670 N.E.2d 1146, 1153 (1996)(in a nonjury proceeding a litigant may forego filing a posttrial motion and may assert as error grounds raised for the first time on appeal). Supreme Court Rule 303, which governs appeals from final judgments, requires that postjudgment motions be timely filed, but is silent as to the contents of such motions. 155 Ill. 2d R. 303. While we realize that the language in Rule 366(b) deals with the court's "scope of review" rather than its "jurisdiction," we deem it incongruous to say that our scope of review is not limited by the existence of a posttrial motion or its contents in a nonjury case, but that, once a postjudgment motion is filed, our jurisdiction is dependent upon its contents. Thus, we conclude that, despite the fact that plaintiff's motion did not contain the specific grounds relied upon for its request for relief, it nonetheless met the requirements of section 2-1203 and was a valid postjudgment motion. Thus, plaintiff's notice of appeal was timely filed within 30 days of the trial court's ruling on the postjudgment motion. In arriving at our conclusion, we are mindful of the language to the contrary contained in the supreme court cases of Andersen v. Resource Economics Corp., 133 Ill. 2d 342, 549 N.E.2d 1262 (1990) and Beck v. Stepp, 144 Ill. 2d 232, 579 N.E.2d 824 (1991). However, with all due respect and deference to the supreme court, we are not bound to follow the dicta of either Andersen or Beck. We first note that the dicta contained in both Andersen and Beck were expressions of opinion upon points in the cases deliberately passed on by the court; thus, they are properly characterized as judicial dicta rather than mere obiter dicta. Wolf v. Meister-Neiberg, Inc., 194 Ill. App. 3d 727, 730, 551 N.E.2d 353, 355 (1990), aff'd, 143 Ill. 2d 44, 570 N.E.2d 327 (1991). The distinction can be critical because obiter dicta, even of the supreme court, while persuasive are not binding, but judicial dicta generally establish binding precedent. See Ko v. Eljer Industries, Inc., 287 Ill. App. 3d 35, 41, 678 N.E.2d 641 (1997). Therefore, we would normally have to follow the dicta in question because of the general rule that judicial dicta establish binding precedent. The supreme court, however, added a caveat to the general rule when it stated that judicial dicta should be followed "unless found to be erroneous." Cates v. Cates, 156 Ill. 2d 76, 80, 619 N.E.2d 715, 717 (1993). We, therefore, decline to follow the dicta of Andersen or Beck because we have determined that they are erroneous. In Andersen, the supreme court stated that a postjudgment motion must (1) include a request for at least one of the forms of relief specified in section 2-1203 and (2) allege grounds that would warrant the granting of the relief requested. Andersen, 133 Ill. 2d at 347 (1990). Because the plaintiff's motion in Andersen, which was merely a motion for leave to amend, failed in the first instance to include a request for any of the forms of relief specified in section 2-1203, the court did not address the merits of the second criterion. Andersen, 133 Ill. 2d at 347-48, 549 N.E.2d at 1264. Unlike the plaintiff in Andersen, plaintiff here filed a proper motion to reconsider. Nevertheless, in dictum, because it was not essential to the disposition of the case, the Andersen court noted that the posttrial motion at issue lacked specificity and was "nothing more than a title and an ambiguous prayer for relief with absolutely no substance in between." Andersen, 133 Ill. 2d at 347, 549 N.E.2d at 1264. In discussing the specificity requirement, the Andersen court relied upon the case of Brown v. Decatur Memorial Hospital, 83 Ill. 2d 344, 415 N.E.2d 337 (1980). The Andersen court, however, failed to note that Brown was a jury case decided under the statute dealing with jury cases. The posttrial motion in question in Brown was determined to be inadequate under section 68.1(2) of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 68.1(2)) and Supreme Court Rule 366(b)(2)(iii) (73 Ill. 2d R. 366(b)(2)(iii)), both of which applied to jury cases. Thus, we conclude that the judicial dictum in Andersen was erroneous and did not engraft a specificity requirement onto posttrial motions filed in nonjury cases. While the specificity requirement was again pronounced in Beck v. Stepp, 144 Ill. 2d 232, 579 N.E.2d 824 (1991), there the court decided that a letter which plaintiff had contended was in substance a "post-trial motion" did not meet the statutory requirements in that it failed to include a request for at least one of the forms of relief specified in section 2-1203. Beck, 144 Ill. 2d at 240, 579 N.E.2d at 828. Thus, similar to the plaintiff in Andersen, the document in issue did not qualify as a postjudgment motion in the first instance, regardless of its lack of specificity. Since the Beck court's subsequent reference to the specificity requirement of posttrial motions, which was based entirely upon the erroneous dictum of Andersen, was not essential to the disposition of the case, it too was a judicial dictum - an erroneous judicial dictum we need not follow. This court has previously acknowledged that section 2-1203 contains no language requiring specificity, but stated that the supreme court in both Andersen and Beck "clearly grafted such a requirement onto section 2-1203." Mendelson v. Ben A. Borenstein & Co., 240 Ill. App. 3d 605, 615, 608 N.E.2d 187, 193 (1992). An analysis of the correctness of Andersen's dictum was not necessary, however, since the plaintiff's postjudgment motion in Mendelson included a request for leave to file a supporting memorandum which the court determined satisfied the specificity requirement. Moreover, Mendelson was decided before Cates, the supreme court case that first announced that "erroneous" judicial dicta need not be followed. Nevertheless, even after Cates, cases from both this district and others have cited with approval the judicial dicta of Andersen and Beck that specificity is required in a postjudgment motion in a nonjury case. See, e.g., J.D. Marshall International, Inc. v. First National Bank, 272 Ill. App. 3d 883, 888, 651 N.E.2d 518, 521 (1st Dist. 1995); Droen v. Wechsler, 271 Ill. App. 3d 332, 334, 648 N.E.2d 981, 983 (1st Dist. 1995); Sho-Deen, Inc. v. Michel, 263 Ill. App. 3d 288, 291-93, 635 N.E.2d 1068, 1071-73 (2nd Dist. 1994); In re Marriage of Sisk, 258 Ill. App. 3d 388, 391, 630 N.E.2d 1289, 1292 (4th Dist. 1994). In view of our analysis of the judicial dicta of Andersen and Beck and our determination that they were erroneous, we respectfully disagree with any endorsement of the dicta contained in these cases. Having determined that we have jurisdiction of this appeal, we now address the merits. Plaintiff appeals from the trial court's order granting summary judgment in favor of both defendants. A trial court may render summary judgment if the record shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 1992). A reviewing court conducts de novo review in an appeal from a trial court's grant of summary judgment. In re Estate of Hoover, 155 Ill. 2d 402, 615 N.E.2d 736 (1993). An order granting summary judgment should be reversed if the evidence shows that a genuine issue of material fact exists or if the judgment was incorrect as a matter of law. Clausen v. Carroll, 291 Ill. App. 3d 530, 536, 684 N.E.2d 167, 171 (1997). To survive a motion for summary judgment, the nonmoving party must present a factual basis that would arguably entitle him to a judgment, but plaintiffs are not required to prove their case at the summary judgment stage. Allegro Services, Ltd. v. Metropolitan Pier & Exposition Authority, 172 Ill. 2d 243, 256, 665 N.E.2d 1246, 1254 (1996). Summary judgment is a drastic means of disposing of litigation, and it must be clear that the moving party is truly entitled to such a remedy. Jackson Jordan, Inc. v. Leydig, Voit & Mayer, 158 Ill. 2d 240, 249, 633 N.E.2d 627 (1994). When considering a summary judgment motion, a court must construe the evidence strictly against the movant and liberally in favor of the nonmoving party. Guerino v. Depot Place Partnership, 273 Ill. App. 3d 27, 30, 652 N.E.2d 410 (1995). A motion for summary judgment should be granted only if the movant's right to judgment is clear and free from doubt. Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 102, 607 N.E.2d 1204 (1992). With these principles in mind, we conclude that summary judgment in favor of both Podolsky and Allied was incorrect as a matter of law. Both defendants had a duty towards plaintiff and genuine issues of material fact exist as to whether either defendant was negligent and whether either defendant's negligence proximately caused plaintiff's injuries. Plaintiff should be permitted to present the evidence in her case to a trier of fact. On March 27, 1992, plaintiff Joan Berg was attacked in a parking lot by an unknown assailant. The parking lot was part of an office complex. Plaintiff's employer, along with various other commercial tenants, was located in one of the buildings in the office complex, which was owned by Podolsky. At the time of plaintiff's attack, plaintiff was returning to work after having picked up pizzas for her coworkers on the 2 p.m. to 12 a.m. shift. As plaintiff began to step out of her car, she was hit in the back of the head. When she turned to look, she saw a man standing over her with a solid metal bar. He pushed her into the car across the front seat, continuing to strike her repeatedly. When plaintiff sounded the horn, the attacker fled. During the previous 6 |