Justice GORDON delivered the judgment of the court, with opinion.
¶ 1 In the case at bar, defendant Nazeer Shaik purchased plaintiff Scott Arient's pet shop, and plaintiff remained as an employee. There were three agreements: an employee agreement whereby plaintiff continued to work at the shop; and a purchase agreement, as well as an asset purchase agreement, whereby defendant purchased the shop. In 2011, defendant closed the pet shop and plaintiff sued alleging breach of contract. On November 21, 2013, a jury rendered a verdict against plaintiff on his claims and against defendant on his counterclaims. As a result, the trial court issued an order stating that no monetary award was entered against either party.
¶ 2 On this appeal, plaintiff seeks a new trial and raises one issue. He claims that the trial court abused its discretion when it barred him from admitting certain evidence. In response, defendant claims, among other things, that plaintiff forfeited this issue by failing to file a posttrial motion. The jury verdict and the trial court's order were both entered on November 21, 2013. Less than a month later, plaintiff filed a notice of appeal on December 19, 2013, without first filing a posttrial motion.
¶ 3 For the following reasons, we agree that this issue is forfeited for our consideration.
¶ 5 Since we are presented with a purely legal question which requires us to interpret the words of a statute and rule, we provide here only a summary of the facts.
¶ 6 The facts established at trial are that defendant was a longstanding customer of Scott's Pet Shop in Westchester, Illinois, which was owned by plaintiff. On January 17, 2008, defendant purchased the shop. To facilitate the purchase, the parties signed three documents: an employment agreement whereby plaintiff remained as an employee after defendant's purchase; a purchase agreement; and an asset purchase agreement. In June 2009, defendant terminated plaintiff's employment for alleged breaches of the employment agreement. In early 2011, defendant closed the shop and, on June 9, 2011, plaintiff filed this lawsuit.
¶ 7 Plaintiff alleged a breach of both the employment agreement and the purchase agreement, and sought an accounting and other relief. Defendant then alleged two counterclaims for breach of contract and conversion.
¶ 8 On appeal, plaintiff raises only one issue, which is an alleged evidentiary error by the trial court. Plaintiff alleges that the trial court erred by barring him from asking defendant whether Dr. Ghouse,
¶ 9 The question arose during the following testimony concerning the store's daily deposits:
¶ 10 Defense counsel then requested a sidebar and objected. At the sidebar, plaintiff's counsel stated:
¶ 11 The trial court ruled: "What you can't do is make it appear * * * that there was some sort of bag man or taking of this money because you're not going to be able to tie it up because Dr. [Ghouse] is not going to testify here." Without Dr. Ghouse, the question was more "prejudicial than probative." The trial court clarified its ruling:
¶ 12 The appellate record does not indicate either that plaintiff subpoenaed Dr. Ghouse to testify at trial or that there was some other reason for Dr. Ghouse's absence, such as death or illness; and on appeal, plaintiff does not claim that there was either a subpoena or a reason for Dr. Ghouse's absence.
¶ 13 Later during the trial, plaintiff testified as follows about the missing $500 per day:
Defense counsel moved for a mistrial, which the trial court denied. The trial court instructed plaintiff's counsel to "mov[e] along pretty quickly away from this line of questioning," but the above testimony was not stricken.
¶ 14 On November 21, 2013, the jury rendered a verdict against plaintiff on his claims and against defendant on his counterclaims, and the trial court issued an order stating that no monetary award was entered against either party. On December 19, 2013, plaintiff filed a notice of appeal, and this appeal followed.
¶ 16 Plaintiff claims that the trial court abused its discretion by barring him from admitting certain testimony. Defendant claims that plaintiff forfeited this issue by failing to file a posttrial motion. For the following reasons, we agree that this issue is forfeited for our consideration.
¶ 18 The question before us is whether the Illinois Supreme Court Rules and Code of Civil Procedure require the filing of a posttrial motion in civil jury cases prior to filing an appeal. This is a question of statutory interpretation which we consider de novo. Zurek v. Cook County Officers Electoral Board, 2014 IL App (1st) 140446, ¶ 11, 379 Ill.Dec. 823, 7 N.E.3d 249; Luss v. Village of Forest Park, 377 Ill.App.3d 318, 322, 316 Ill.Dec. 169, 878 N.E.2d 1193 (2007) (the proper construction of a statute is a question of law that we review de novo). De novo consideration means that we perform the same analysis that a trial judge would perform. Zurek v. Franklin Park Officers Electoral Board, 2014 IL App (1st) 142618 ¶ 63, 387 Ill.Dec. 208, 22 N.E.3d 90 (citing Khan v. BDO Seidman, LLP, 408 Ill.App.3d 564, 578, 350 Ill.Dec. 63, 948 N.E.2d 132 (2011)).
¶ 19 "As we do in every case of statutory interpretation, we look first and foremost to the language of the statute itself." People v. Wright, 2012 IL App (1st) 073106, ¶ 78, 361 Ill.Dec. 447, 971 N.E.2d 549 (citing People v. Cardamone, 232 Ill.2d 504, 512, 328 Ill.Dec. 917, 905 N.E.2d 806 (2009)). "The primary objective of statutory interpretation is to give effect to the
¶ 20 We review the statute in its entirety, keeping in mind the subject it addresses and the legislature's apparent objective in enacting it. Wright, 2012 IL App (1st) 073106, ¶ 78, 361 Ill.Dec. 447, 971 N.E.2d 549 (citing Cardamone, 232 Ill.2d at 512, 328 Ill.Dec. 917, 905 N.E.2d 806). "Each word, clause and sentence of the statute, if possible, must be given reasonable meaning and not rendered superfluous." People ex rel. Sherman v. Cryns, 203 Ill.2d 264, 280, 271 Ill.Dec. 881, 786 N.E.2d 139 (2003). In this endeavor, we consider both any stated purpose, as well as what Illinois courts have previously determined. Zurek, 2014 IL App (1st) 142618, ¶ 64, 387 Ill.Dec. 208, 22 N.E.3d 90 (citing Metzger, 209 Ill.2d at 38, 282 Ill.Dec. 148, 805 N.E.2d 1165).
¶ 22 Defendant argues that both section 2-1202(e) of the Code of Civil Procedure (Code) (735 ILCS 5/2-1202 (West 2012)) and Illinois Supreme Court Rule 366 required plaintiff to raise issues in a posttrial motion before raising those issues on appeal. Below, we quote and analyze the language from the applicable statute and rule, and then set forth the relevant case law.
¶ 24 Section 2-1202 governs "[p]ost-trial motions in jury cases," such as the one at bar. 735 ILCS 5/2-1202 (West 2012) (unchanged since July 1, 1982). Section 2-1202 states that posttrial motions in jury cases "must" be filed within 30 days after the entry of judgment, and that the 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." 735 ILCS 5/2-1202(c), (b) (West 2012).
¶ 25 Section 2-1202(e) specifies what happens if a party in a jury case fails to file a posttrial motion. Subsection (e) states in full:
¶ 26 The Code treats nonjury cases very differently. In re Marriage of Jerome, 255 Ill.App.3d 374, 389, 193 Ill.Dec. 74, 625 N.E.2d 1195 (1994); Malfeo v. Larson, 208 Ill.App.3d 418, 422, 153 Ill.Dec. 406, 567 N.E.2d 364 (1990) ("`In a non-jury civil case, the failure to include a point in a post-trial motion does not preclude its being raised on appeal.'" (quoting City of Chicago v. Mid-City Laundry, 8 Ill.App.3d 88, 90, 289 N.E.2d 233 (1972))). Section 2-1203 governs the filing of posttrial motions in nonjury civil cases, and it states that a party "may" file a posttrial motion within 30 days after the entry of judgment. 735 ILCS 5/2-1203(a) (West 2012). The permissive "may" in section 2-1203
¶ 27 The two sections also differ in what they require in the motions. Section 2-1203, which governs "non-jury cases," does not specify at all what the motion should contain. 735 ILCS 5/2-1203(a) (West 2012). By comparison, section 2-1202, which governs "jury cases," requires that: "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." (Emphasis added.) 735 ILCS 5/2-1202(b) (West 2012). See also In re Marriage of Jerome, 255 Ill.App.3d at 389, 193 Ill.Dec. 74, 625 N.E.2d 1195 (section 2-1203 "does not mandate the detail as required by section 2-1202 which applies to jury cases").
¶ 28 Similarly, section 2-1203 says nothing about waiver (735 ILCS 5/2-1203 (West 2012)), while section 2-1202 expressly provides that a party in a jury case, who fails to seek a new trial in a posttrial motion, "waives" the right to seek a new trial later (735 ILCS 5/2-1202(e) (West 2012)). Thus, the plain language of the Code and its separate sections for jury and nonjury cases indicate that the legislature intended different requirements and results for jury and nonjury cases, with the failure to file a posttrial motion resulting in waiver in jury cases but not in nonjury cases.
¶ 29 There are two exceptions when a litigant in a jury case does not have to file a posttrial motion, and neither exception applies in this case. First, section 2-1202(e) provides that a posttrial motion is required in jury cases "except in cases in which the jury has failed to reach a verdict." 735 ILCS 5/2-1202(e) (West 2012). In the case at bar, the jury reached a verdict, so this statutory exception does not apply. Second, interpreting this statutory exception, appellate courts have also carved out an exception for directed verdicts, so that it is also not necessary for a party to file a posttrial motion after the trial court directs a verdict. Garcia v. Seneca Nursing Home, 2011 IL App (1st) 103085, ¶ 21, 353 Ill.Dec. 877, 956 N.E.2d 1005 (it is not "necessary to file a posttrial motion following entry of a directed verdict in a jury case to preserve issues for appeal" (citing Keen v. Davis, 38 Ill.2d 280, 281-82, 230 N.E.2d 859 (1967))); Robbins v. Professional Construction Co., 72 Ill.2d 215, 225, 20 Ill.Dec. 577, 380 N.E.2d 786 (1978) (observing that the Keen exception for directed verdicts is a "narrow exception"). Since both these exceptions do not apply to the case at bar, the plain language of the statute dictates that a party "waives" the right to seek "a new trial" based on issues not raised in a posttrial motion. 735 ILCS 5/2-1202(e) (West 2012).
¶ 31 The same result is also dictated by Supreme Court Rule 366. Subsection (b) of Rule 366 is entitled: "Scope of Review." Ill. S.Ct. R. 366(b) (eff. Feb. 1, 1994). This subsection is divided into three parts: (1)
¶ 32 Subsection (b) states in relevant part:
As the above quote demonstrates, jury and nonjury cases are treated quite differently by the rules. While the failure to file a posttrial motion in a nonjury case does not limit the scope of the appellate court's review, the failure to file a posttrial motion in a jury cases results in waiver, which we now call a forfeiture. In contrast to a nonjury case, a party in a jury case may not argue to the appellate court "any point, ground, or relief not specified" in his or her posttrial motion. Ill. S.Ct. R. 366(b)(2)(iii), (3)(ii) (eff. Feb. 1, 1994).
¶ 34 With the language of the statute and rule so clear, it is then no surprise that the courts have consistently held for decades that the failure to file a posttrial motion in a jury case results in forfeiture. E.g., Garcia, 2011 IL App (1st) 103085, ¶ 32, 353 Ill.Dec. 877, 956 N.E.2d 1005 ("Illinois Supreme Court Rule 366 required plaintiff to file a posttrial motion in order to preserve issues for review [after a jury trial]. Plaintiff failed to do so, and he has therefore forfeited review of any alleged errors."). See also Brown v. Decatur Memorial Hospital, 83 Ill.2d 344, 348-49, 47 Ill.Dec. 332, 415 N.E.2d 337 (1980) (plaintiff waived for review on appeal an issue with respect to jury instructions, where his posttrial motion did not "specif[y] the ground upon which it is based"); Nilsson v. NBD Bank of Illinois, 313 Ill.App.3d 751, 767, 247 Ill.Dec. 1, 731 N.E.2d 774 (1999) (after a jury trial, "defendants failed to file a posttrial motion; therefore they have failed to preserve the issue" for review); In re Parentage of Kimble, 204 Ill.App.3d 914, 916, 150 Ill.Dec. 138, 562 N.E.2d 668 (1990) ("Petitioner's failure to file a post-trial motion following the jury trial amounted to failure to preserve any matters for review."); Malott v. Hart, 167 Ill.App.3d 209, 211, 118 Ill.Dec. 69, 521 N.E.2d 137 (1988) ("The plaintiffs' failure to file a post-trial motion amounted to a failure to preserve any matters for review."); Leslie H. Allott Plumbing & Heating, Inc. v. Owens-Corning Fiberglas,
¶ 35 In Allott Plumbing, the appellate court explained the policy reasons behind the requirement for a posttrial motion in a jury case:
¶ 36 The plain language of the Code and Supreme Court Rule 366, as well as our well-established case law, require the filing of a posttrial motion in a jury case, which plaintiff failed to do.
¶ 37 There is case law permitting a reviewing court to consider a forfeiture under the plain error doctrine in civil cases. Wilbourn v. Cavalenes, 398 Ill.App.3d 837, 855-56, 338 Ill.Dec. 77, 923 N.E.2d 937 (2010) (citing Palanti v. Dillon Enterprises, Ltd., 303 Ill.App.3d 58, 66, 236 Ill.Dec. 568, 707 N.E.2d 695 (1999) (citing Belfield v. Coop, 8 Ill.2d 293, 313, 134 N.E.2d 249 (1956))); Matthews v. Avalon Petroleum Co., 375 Ill.App.3d 1, 8, 313 Ill.Dec. 132, 871 N.E.2d 859 (2007); In re Marriage of Saheb, 377 Ill.App.3d 615, 627, 316 Ill.Dec. 801, 880 N.E.2d 537 (2007). Although the doctrine may be applied in civil cases, it finds much greater application in criminal cases. Wilbourn, 398 Ill.App.3d at 856, 338 Ill.Dec. 77, 923 N.E.2d 937 (citing Gillespie v. Chrysler Motors Corp., 135 Ill.2d 363, 375, 142 Ill.Dec. 777, 553 N.E.2d 291 (1990)). The plain error doctrine may be applied in civil cases only where the act complained of was a prejudicial error so egregious that it deprived the complaining party of a fair trial and substantially impaired the integrity of the judicial process itself. Wilbourn, 398 Ill.App.3d at 856, 338 Ill.Dec. 77, 923 N.E.2d 937; Matthews, 375 Ill.App.3d at 8, 313 Ill.Dec. 132, 871 N.E.2d 859; In re Marriage of Saheb, 377 Ill.App.3d at 627, 316 Ill.Dec. 801, 880 N.E.2d 537. This court has observed that the application of the plain error doctrine to civil cases should be exceedingly rare. Wilbourn, 398 Ill.App.3d at 856, 338 Ill.Dec. 77, 923 N.E.2d 937 (citing Palanti v. Dillon Enterprises, Ltd., 303 Ill.App.3d 58, 66, 236 Ill.Dec. 568, 707 N.E.2d 695 (1999)).
¶ 38 In the instant appeal, plaintiff argues that we should consider his case under the plain error doctrine since "he did not file a written posttrial motion on the issue to avoid a mistrial." Plaintiff argues that, when he kept raising the issue (in front of the jury and in violation of the trial court's order), the trial court warned him that if he did it again, the court would declare a mistrial. Plaintiff's argument is not persuasive. First, the trial court's admonition was directed toward plaintiff's conduct in front of the jury. Filing a written posttrial motion would not violate the trial court's order, since the jury would not have been made aware of the written motion and, in any event, the jury had already been dismissed. Second, no rational trial judge would declare a mistrial on the ground that plaintiff was filing a statutorily required motion. Thus, we do not find plaintiff's argument persuasive.
¶ 39 In addition, plaintiff's alleged evidentiary error was not so egregious that it makes us question the integrity of the
¶ 41 For the foregoing reasons, the issue raised by plaintiff is forfeited for our consideration on appeal.
¶ 42 Affirmed.
Presiding Justice PALMER and Justice REYES concurred in the judgment and opinion.
