Find Legal Information

FIRST DIVISION
December 22, 2003

No. 1-02-1695

 

JUSTICE McNULTY delivered the opinion of the court:

In this case we must interpret Supreme Court Rules 366(b)(155 Ill. 2d R. 366(b)) and 361 (b) (Official Reports AdvanceSheet No. 12 (June 13, 2001), R. 361(b), eff. May 25, 2001). Wefind that a party who fails to file a posttrial motion followingentry of judgment on a jury verdict forfeits appellate review ofall waivable issues, but this forfeiture does not preclude thiscourt from considering the appeal. Rule 361(b), which governsmotions in the appellate court, prohibits parties from usingappellate briefs to argue the motions, unless this court hasexpressly permitted the parties to address the appellate motionin their briefs.

Carl Johnson delivered a computer to Kindercare LearningCenters in 1998. As he left, he fell on temporary stairs andbroke bones in his leg and foot. He sued Kindercare and severalother parties, including Transport International Pool (TIP),which set up the temporary stairs. Johnson settled his claimsagainst all parties other than Kindercare and TIP. A jury foundin favor of Kindercare and TIP, and the trial court enteredjudgment on the jury verdict. Johnson filed no posttrial motion. Instead, he appealed to this court. On appeal he contestsseveral evidentiary rulings, and he claims that the trial courtcommitted reversible error in rulings on jury instructionsconcerning missing witnesses and sole proximate cause.

Kindercare made a motion in this court for summaryaffirmance of the judgment due to Johnson's failure to file aposttrial motion. Johnson filed a timely response to the motion,and this court decided to take the motion with the case.Kindercare used several pages at the beginning of its brief onappeal to reply to Johnson's response to the motion for summaryaffirmance. Johnson moved to strike these pages fromKindercare's brief.

Although Johnson did not cite to the rule, he apparentlyintended to invoke Rule 361(b). The rule specifies: "Except byorder of court, replies to responses will not be allowed." Official Reports Advance Sheet No. 12 (June 13, 2001), R.361(b)(2), eff. May 25, 2001. No order of this court mentionsreplies to responses or any further briefing of the issue raisedby Kindercare's motion. Kindercare never sought leave of thiscourt to file a reply to Johnson's response to the motion. Whena party files papers without leave of court, and rules requireleave of court for the filings, the court may strike the papersfiled. See Ganci v. Blauvelt, 294 Ill. App. 3d 508, 519 (1998). We hold that the inclusion in the appellate brief of a reply toJohnson's response to the motion, without order of this courtpermitting such a reply, violated Rule 361(b). See Bramson v.Bramson, 4 Ill. App. 2d 249, 253 (1955). Accordingly, we strikefrom Kindercare's brief all material from the top of the firstpage to the beginning of the statement of facts on page six. Wewill not consider those pages for this appeal.

Kindercare based the motion for summary affirmance on Rule366(b)(2)(iii). That rule provides that in cases tried to ajury, "[a] party may not urge as error on review of the ruling onthe party's post-trial motion any point, ground, or relief notspecified in the motion." 155 Ill. 2d R. 366(b)(2)(iii). Bycontrast, Supreme Court Rule 366(b)(3)(ii) provides that innonjury cases, "[n]either the filing of nor the failure to file apost-judgment motion limits the scope of review." 155 Ill. 2d R.366(b)(3)(ii). Courts have construed Rule 366(b)(2)(iii) to meanthat if the trial court has entered judgment on a jury verdict,and a party fails to file a posttrial motion, that party hasforfeited appellate review of all waivable issues. AmericanNational Bank & Trust Co. of Chicago v. J&G Restaurant, Inc., 94 Ill. App. 3d 318, 319 (1981).

Johnson responds that our supreme court, in Chand v.Schlimme, 138 Ill. 2d 469 (1990), established a contraryinterpretation of the rule. In that case the plaintiff won ajury verdict at trial, but the trial court granted the defendant's motion for judgment notwithstanding the verdict. Oursupreme court held that section 2-1202(c) of the Code of CivilProcedure permitted the plaintiff to file a posttrial motion,because the plaintiff was "[a] party against whom judgment isentered pursuant to post-trial motion." Ill. Rev. Stat. 1985,ch. 110, par. 2-1202(c). The court expressly found that "it wasnot essential that plaintiff file such a post-trial motion topreserve her appeal." Chand, 138 Ill. 2d at 477. Johnson claimsthe statement applies equally to him.

We disagree. In Chand the plaintiff did not appeal from ajudgment entered on a jury verdict; instead the trial court hadexplicitly rejected the jury's verdict and entered a judgmentnotwithstanding the verdict. When the trial court, after a jurytrial, enters a judgment that does not follow the jury verdict,Rule 366 does not require a posttrial motion. Keen v. Davis, 38Ill. 2d 280, 281-82 (1967); E.M. Melahn Construction Co. v.Village of Carpentersville, 100 Ill. App. 3d 544, 547 (1981). After Chand Illinois courts have continued to find issues waivedif not raised in a posttrial motion. Nilsson v. NBD Bank ofIllinois, 313 Ill. App. 3d 751, 767 (1999). Johnson forfeitedreview of all issues he raises on appeal by failing to file aposttrial motion.

Johnson points out that Supreme Court Rules 301 and 303 givethis court jurisdiction to consider the appeal even without aposttrial motion. 155 Ill. 2d Rs. 301, 303. We agree. Oursupreme court has held that procedural default, includingforfeiture by failure to file a posttrial motion, does not limitthe jurisdiction of the reviewing court. Schutzenhofer v.Granite City Steel Co., 93 Ill. 2d 208, 210-11 (1982). When theinterests of justice so require, this court has authority toaddress issues for which the parties have forfeited appellatereview. In re Marriage of Brackett, 309 Ill. App. 3d 329, 338(1999).

Here Johnson recovered a substantial sum in settlements, andthe evidence at trial amply supports the verdict. Even if wegrant the requested relief of a new trial, a new jury may wellreturn the same verdict. The alleged errors in rulings onevidence and instructions do not implicate concerns for potentialdeterioration of the integrity and reputation of the judicialprocess. See Muscarello v. Peterson, 20 Ill. 2d 548, 555 (1960);People v. Vargas, 174 Ill. 2d 355, 363 (1996). The interests ofjustice do not demand full analysis of the procedurally defaultedissues.

Because Johnson filed no posttrial motion following entry ofjudgment on the jury's verdict, we summarily affirm the judgmentof the trial court. See American National, 94 Ill. App. 3d at320.

Affirmed.

GORDON and McBRIDE, JJ., concur.