COLLIN CRIM, a Minor, by His Parents and Next Friends, Kristopher Crim and Teri Crim, Appellees, v. GINA DIETRICH, Appellant.
Docket No. 124318
Supreme Court of Illinois
April 2, 2020
2020 IL 124318
JUSTICE KARMEIER delivered the judgment of the court, with opinion. Justices Garman, Theis, and Neville concurred in the judgment and opinion. Chief Justice Anne M. Burke specially concurred, with opinion. Justice Kilbride dissented, with opinion. Justice Michael J. Burke took no part in the decision.
Opinion filed April 2, 2020.
¶ 1 In this appeal, the circuit court of Adams County certified the following question for interlocutory appeal pursuant to
BACKGROUND
¶ 2 Because our resolution of this appeal concerns a narrow certified question, we summarize here only those facts pertinent
¶ 3 In August 2015, plaintiffs, Kristopher Crim and Teri Crim, acting on behalf of their biological son, Collin Crim (born June 17, 2005), filed a fourth amended medical malpractice claim against defendant, Gina Dietrich, D.O., alleging two claims: (1) Defendant failed to obtain Teri‘s informed consent to perform a natural birth despite possible risks associated with Collin‘s large size, and (2) defendant negligently delivered Collin, causing him injuries. The allegations supporting the informed consent claim are found in subparagraphs (a) thru (j) of plaintiffs’ fourth amended complaint, while subparagraphs (k) and (l) concern the allegations related to professional negligence during the delivery of the child.
¶ 4 As to the informed consent claim, plaintiffs alleged, among other things, that prior to birth, defendant failed to diagnose Collin with fetal macrosomia because she failed to recognize the significance of Teri‘s fundal heights, failed to assess the fetal weight, and failed to order an ultrasound prior to inducing labor. As a result, plaintiffs claim that defendant failed to inform Teri of the risks and benefits of vaginal birth as opposed to Caesarean section, failed to inform her of the high risk of shoulder dystocia and brachial plexus injury in the event of a vaginal birth, and failed to offer Teri the option of delivering Collin by Caesarean section, given Collin‘s large size.
¶ 5 The negligence claim, under subparagraphs (k)-(l), alleged negligent professional conduct during the birth of Collin. During Collin‘s June 17, 2005, natural delivery, Collin suffered shoulder dystocia, which is an obstructed labor whereby, after the delivery of the head, one or both shoulders of an infant cannot pass or requires significant manipulation. As a result, Collin suffered a broken clavicle and extensive nerve damage in his right shoulder, arm, and hand.
¶ 6 In September 2015, the matter proceeded to a jury trial. Following the presentation of the plaintiffs’ case, defendant moved for a partial directed verdict on the issue of informed consent, arguing that the appellate court‘s decision in St. Gemme v. Tomlin, 118 Ill. App. 3d 766 (4th Dist.1983), requires plaintiffs to present expert testimony that a reasonable patient would have pursued a different form of treatment. Defendant argued that plaintiffs failed to proffer an expert to satisfy St. Gemme‘s holding. The circuit court agreed, granting defendant‘s motion for a directed verdict on the issue of informed consent. Thereafter, following additional evidence and argument, the jury returned a verdict in defendant‘s favor and against plaintiffs on their remaining claim of professional negligence.
¶ 7 After the circuit court entered the judgment on the jury‘s verdict, the plaintiffs did not file any post-trial motions. Instead, on October 15, 2015, plaintiffs filed a timely notice of appeal.
¶ 8 Relevant to the appeal before this court, plaintiffs argued in Crim I that the circuit court erred by granting a directed verdict on the issue of informed consent. In the introductory paragraph of their opening brief, plaintiffs framed their appeal as a review only on whether the circuit court erred in issuing a directed verdict on the informed consent claim, expressly stating: “While this case was tried to verdict, this appeal is not based
¶ 9 Plaintiffs asserted that expert testimony was not required to show what a reasonable patient would have done. Instead, plaintiffs contended that they sufficiently presented a claim on informed consent by offering Teri‘s testimony that she would have had a Caesarean section, had she known about Collin‘s size and the risks associated with the natural birth of a macrosomic baby. Consistent with their introductory paragraph, plaintiffs presented no argument in either their opening brief or reply brief addressing the jury‘s verdict regarding professional negligence. Rather, plaintiffs asked the appellate court to “reverse each and every decision and order entered in the trial court which were further steps in the procedural progression of enforcing or otherwise remaining consistent with the Court‘s Order granting the Defendant‘s Motion for Directed Verdict.”
¶ 10 On November 7, 2016, the appellate court issued its opinion in Crim I, reversing the circuit‘s court‘s judgment and remanding the case to the circuit court. 2016 IL App (4th) 150843, ¶ 51. The appellate court limited its decision to an analysis of the partial directed verdict on the issue of informed consent, stating it need not address the subsequent proceedings following the directed verdict “because it is not pertinent to the resolution of this case.” Id. ¶ 29. The appellate court‘s mandate stated, “the order on appeal from the circuit court be REVERSED and the cause be remanded to the Circuit Court for the Eighth Judicial Circuit Adams County, for such other proceedings as required by order of this court.”
¶ 11 Upon remand, the parties disagreed on what issues and facts could be retried. Defendant filed a motion in limine to exclude the presentation of any evidence relating to plaintiffs’ negligent delivery claim, thereby requesting the new trial be conducted solely on the issue of informed consent. Defendant argued that the appellate court‘s opinion addressed only the informed consent claim and, therefore, the only issue and facts that should be retried are those related to plaintiffs’ informed consent claim. Defendant further noted that plaintiffs forfeited their right to have a new trial on their professional negligence claim because they failed to file a post-trial motion as required by section 2-1202 of the Code of Civil Procedure.
¶ 12 In response, plaintiffs claimed that a new trial on all issues was necessary because the appellate court issued a general mandate and the appellate court reversed the circuit court‘s judgment in its entirety and did not limit the issues the new trial could address. In regard to defendant‘s
¶ 13 Following a hearing on defendant‘s motion in limine, the circuit court denied the motion but invited the parties to propose a certified question pursuant to Rule 308. The circuit court certified the following question for immediate appeal: “Whether the ruling of the Appellate Court, 2016 IL App (4th) 150843, reversing the judgment and remanding this case for a new trial requires a trial de novo on all claims.”
¶ 14 The appellate court granted defendant‘s application for an interlocutory appeal and answered the certified question in the affirmative. 2018 IL App (4th) 170864-U, ¶ 54 (Crim II). Defendant filed her notice of appeal to this court, which we granted.
ANALYSIS
¶ 15 Based on the language of the certified question at issue, plaintiffs initially argue that defendant‘s appeal to this court is an impermissible attempt at relitigating the merits of Crim I by requesting this court to go beyond the specific question and determine whether a new trial de novo is proper. Plaintiffs argue that our review of the certified question should be limited to only the question certified by the circuit court, which, according to plaintiffs, asks the appellate court to provide “guidance as to the meaning of its ruling in Crim I.” In other words, plaintiffs consider the certified question to be a request for the appellate court to interpret its prior decision in order to clarify for the parties what Crim I “intended” or “meant” when it remanded the case. Based on their reading of the certified question, plaintiffs claim that this court has “no legal basis” to substitute its judgment for that of the appellate court.
¶ 16 Plaintiffs acknowledge, however, that the scope of our review is broad and not limited to determining how the circuit court‘s question should be decided. This is so because, when this court accepts an appeal involving a question of law identified under Rule 308, “the scope of our review is not limited to determining whether the appellate court answered the certified questions correctly.” Schrock v. Shoemaker, 159 Ill. 2d 533, 537 (1994). Moreover, under Rule 366, this court may “enter any judgment and make any order that ought to have been given or made, and make any other and further orders and grant any relief *** that the case may require.”
¶ 17 Bearing these principles in mind, we initially consider the question that the circuit court certified to the appellate court. A certified question under
¶ 18 The certified question asks whether the ruling of Crim I “requires a trial de novo on all claims” as a result of the appellate court reversing and remanding the matter “for such other proceedings as required by the order of [the] court.” The language of the certified question is purely legal in nature, as it presents a question that can only be answered by applying relevant legal principles and interpretation of the law to the legal effect of Crim I‘s holding. See Black‘s Law Dictionary 1366 (9th ed. 2009) (defining the term “question of law” as an issue “concerning the application or interpretation of the law” that the court must decide).
¶ 19 Unlike in cases involving improper certified questions, our answer to the certified question neither depends on the resolution of a host of factual predicates, nor does answering the certified question depend on an application of the law to the facts of a specific case, nor does addressing the certified question result in an answer that is advisory or provisional. See Rozsavolgyi, 2017 IL 121048, ¶ 21 (citing various cases). In fact, there is no dispute regarding the underlying facts of the case. Additionally, the certified question does not make an improper request for a new interpretation as to the meaning or intent of Crim I. If that were the situation, the certified question would indeed be improper given that, once Crim I issued its mandate, the appellate court was divested of jurisdiction to take any further action in that appeal. See PSL Realty Co. v. Granite Investment Co., 86 Ill. 2d 291, 304 (1981) (“The mandate of a court of review is the transmittal of the judgment of that court to the circuit court, and revests the circuit court with jurisdiction.“). It would be absurd to permit a certified question to revest the appellate court with jurisdiction to reexamine the merits of a case previously decided. Rather, the certified question seeks a legal analysis regarding whether Crim I‘s holding “requires a new trial de novo.” (Emphasis added.) The certified question is no different than a certified question involving statutory construction (see, e.g., Rosenbach v. Six Flags Entertainment Corp., 2019 IL 123186, ¶ 14; Rozsavolgyi, 2017 IL 121048, ¶ 6; Bowman v. Ottney, 2015 IL 119000, ¶ 8) and requests no more of this court, or the appellate court below, than what reviewing courts are regularly tasked to perform: Resolve legal questions regarding the effects a prior decision has on a pending case. See, e.g., Hampton v. Metropolitan Water Reclamation District of Greater Chicago, 2016 IL 119861, ¶ 6 (answering a certified question concerning the legal effects a recent United States Supreme Court decision has on Illinois law and the pending case). It is without doubt that answering the certified question will establish the necessary parameters of the new trial and, therefore, materially advance the termination of the litigation, resulting in a reduction of protracted litigation and unnecessary legal fees if the question goes unanswered. Accordingly, we conclude that the certified question is a question of law properly certified under Rule 308, and we will proceed to answer it.
¶ 20 Reviewing the ruling in Crim I, the appellate court in Crim II determined that, because Crim I issued a general remand without specific instructions, a new
“Our mandate [in Crim I] reversed the trial court‘s judgment, and our opinion ordered a new trial based on the first issue we considered: the directed verdict on informed consent. We did not limit the issue in the new trial, and we did not address relevant issues presented to us on appeal. Based on our review of the mandate and prior opinion, we conclude that a new trial on all issues was required.” Id. ¶ 52.
For these reasons, the appellate court answered the certified question in the affirmative. Id. ¶ 44.
¶ 21 In her appeal before this court, defendant takes issue with Crim II‘s answer to the certified question. According to defendant, Crim II‘s answer ignores the general rule that the failure to file a post-trial motion following a jury trial prevents review of the jury‘s verdict, and no new trial could be conducted as to the issue that went to a jury. Defendant notes that plaintiffs abandoned their statutory right to challenge the jury‘s verdict by failing to file a post-trial motion pursuant to
¶ 22 We find merit in defendant‘s argument that the ruling in Crim I could not require a new trial de novo on all claims due to plaintiffs’ failure to challenge the jury‘s verdict pursuant to the requirements of section 2-1202 of the Code of Civil Procedure (
¶ 23
“(e) Any party who fails to seek a new trial in his or her post-trial motion, either conditionally or unconditionally, as herein provided, waives the right to apply for a new trial, except in cases in which the jury has failed to reach a verdict.”
735 ILCS 5/2-1202(e) (West 2016).
¶ 25 The second exception to
” ‘When a judge directs a verdict at any stage of the trial, in effect, he has removed the case from the realm of the rules relating to jury cases and the rules applicable to bench trials should apply. It seems illogical to require a party to address the same arguments to the same judge on the identical questions before proceeding to review by an appellate tribunal.’ ” Id. at 281-82 (quoting Larson v. Harris, 77 Ill. App. 2d 430, 434 (1966)).
¶ 26 Citing Keen‘s exception, plaintiffs argue that, since the circuit court entered a directed verdict on their informed consent claim, “they were under no obligation to file a futile and ultimately meaningless post-trial motion” as to the jury‘s verdict on their remaining claim. Therefore, plaintiffs contend that the circuit court did not err in denying defendant‘s motion in limine based on Crim II‘s holding.
¶ 27 Plaintiffs misinterpret this court‘s holding in Keen. In Keen, the circuit court entered a directed verdict that resolved the entire case. A jury‘s verdict was not at issue. For this reason, we found that it was illogical for the circuit court to consider the same arguments it had heard prior to issuing its directed verdict. As stated above, when the circuit court removed the entire case from the jury, the rules governing jury cases ceased to control. Id. Here, unlike in Keen, after the circuit court entered a partial directed verdict, the trial on the remaining issue regarding professional negligence continued, resulting in a jury‘s verdict in favor of defendant. Thus, at no time did the circuit court remove the entire case from the jury and enter judgment on its own. Instead, the rules relating to jury cases continued to control after the circuit court‘s partial directed verdict.
¶ 28 Post-Keen decisions from this court in Robbins v. Professional Construction Co., 72 Ill. 2d 215, 224 (1978), and in Mohn v. Posegate, 184 Ill. 2d 540 (1998), provide further support for our interpretation of
¶ 29 In Robbins, this court dealt with a circuit court order that set aside in part a general verdict and granted the plaintiff a new trial on the question of damages. Robbins, 72 Ill. 2d at 219. In that case, the jury returned a verdict for the plaintiff in the amount of $25,000. Id. The defendants filed a post-trial motion requesting judgment notwithstanding the verdict but did not alternatively request a new trial if their motion for judgment notwithstanding the verdict were denied. Id. The plaintiff filed a motion for a new trial on damages only or, alternatively, for a new trial on all issues. Id. The circuit court granted the plaintiff‘s motion for a new trial on damages only and denied the defendants’ motion. Id. In the second trial for damages, the jury awarded plaintiff $120,000. Id. at 220. The circuit court entered judgment on the verdict. Id. The defendants then filed a post-trial motion requesting a new trial on all issues, including liability. Id. On appeal, the Robbins court found that Keen was inapposite in this situation, reasoning that,
“[w]here the jury already has reached a general verdict in favor of plaintiff, setting aside that verdict in favor of a new trial on the question of damages does not remove the question of liability from the province of the jury, because the first jury‘s verdict on that question remains intact.” Id. at 224.
As such, this court held that Keen‘s “narrow exception” to the post-trial motion rule was not available to the defendants who forfeited their right to request a new trial on the question of liability following the jury‘s verdict by failing to follow the statutory requirement of filing a post-trial motion. Id. at 223-25.
¶ 30 In Mohn, this court held that filing a post-trial motion following summary judgment is unnecessary to preserve an issue for appeal. Mohn, 184 Ill. 2d at 544. Comparing summary judgment to a directed verdict, this court stated:
“In the same way that the jury does not determine the verdict when it is directed, the jury makes no factual determination concerning the issue or issues disposed of by entry of summary judgment before trial of the case upon the remaining undetermined issues. Thus, we conclude that, as in a nonjury case in which a post-judgment motion need not be filed, a party need not raise in a post-trial motion any issue concerning the pretrial entry of summary judgment as to part of a cause of action in order to preserve the issue for review.” Id. at 546-47.
¶ 31 As Mohn demonstrates, the difference between the situations exemplified by Keen and Robbins, concerning whether a post-trial motion is required to preserve alleged error, turns on the question of whether the jury rendered a decision on an issue being challenged before a reviewing court. That is precisely the situation here, where plaintiffs request that the new trial should be conducted on an issue decided by a jury. Because the jury made a factual determination on the issue of professional negligence and the circuit court entered judgment based on that determination, plaintiffs’ reliance on cases that follow Keen and its progeny in support of their argument that no post-trial motion is required is misplaced. Therefore, without filing a post-trial motion as required by
¶ 32 There are sound policy reasons behind the requirement that a litigant file a post-trial motion following a jury case. First, and foremost, this court has long favored the correction of errors at the circuit court level. People v. Marker, 233 Ill. 2d 158, 171-72 (2009) (citing People v. Heil, 71 Ill. 2d 458, 461 (1978)). The statutory requirement meets our general rule by allowing circuit court judges—those most familiar with the evidence and the witnesses—an opportunity to review their ruling and decide if a new trial or a judgment notwithstanding the verdict is appropriate. Keen, 38 Ill. 2d at 281. Filing a post-trial motion following a jury‘s verdict also allows a reviewing court to ascertain from the record whether the circuit court was afforded an adequate opportunity to reassess any allegedly erroneous rulings that affected the case, including the jury‘s verdict. Id. Further, requiring the litigants to specify the grounds in support of their contentions in a
¶ 33 Based on all of the foregoing, we find that neither exception to
¶ 34 Plaintiffs attempt to circumvent
¶ 35 Even assuming the two claims were intertwined, the trouble with plaintiffs’ argument is the simple fact they never filed a post-trial motion pursuant to
¶ 36 Plaintiffs’ arguments before this court highlight exactly the reason why it is incumbent upon a party to raise their concerns of trial error at the trial level and allow the circuit court the opportunity to address those errors in the first instance. Had the circuit court been aware of the possibility that the directed verdict may have altered the jury‘s deliberation to such an extent that the jury‘s verdict should be set aside, the circuit court would have been in the best position to address those concerns. Instead, plaintiffs chose not to exercise their right to challenge the jury‘s verdict pursuant to
¶ 37 Next, we reject plaintiffs’ argument that their notice of appeal and initial appellate brief filed in Crim I preserved all issues of trial error for review. For the same reasons as stated above, plaintiffs’ contention lies in direct conflict with the statutory requirements of
¶ 38 Lastly, plaintiffs argue that, because the appellate court in Crim I issued a general remand, they were automatically entitled to a new trial on all issues. For support, plaintiffs cite multiple cases for the proposition that, “[w]hen a court of review does not determine the merits of a case but merely reverses and remands without specific directions, the judgment of the court below is entirely abrogated and the cause stands as if no trial had occurred.” People ex rel. Borelli v. Sain, 16 Ill. 2d 321, 326 (1959) (citing Kinney v. Lindgren, 373 Ill. 415 (1940)); see also Rigdon v. More, 242 Ill. 256 (1909); Ziolkowski v. Continental Casualty Co., 365 Ill. 594, 600 (1937). These cases however have no relevance or applicability to the situation here. That is so because, when the appellate court in Crim I found that the circuit court erred in granting defendant‘s motion for a directed verdict on the issue of informed consent, the appellate court ruled on the merits of the case before it. Therefore, the appellate court‘s mandate could not remand the matter for a new trial on an issue never raised and not considered.
¶ 39 Accordingly, the appellate court in Crim II erred by answering the certified question in the affirmative. Further, based on our finding, we hold that the circuit court erred in denying defendant‘s motion in limine, which sought to limit the new trial to a trial on plaintiffs’ informed consent claim.
CONCLUSION
¶ 40 For the foregoing reasons, we answer the certified question in the negative, and we reverse the judgment of the appellate court. We also reverse the circuit court‘s order denying defendant‘s motion in limine and remand the matter to the circuit court in order to conduct a new trial on the issue of informed consent.
¶ 41 Certified question answered.
¶ 42 Reversed and remanded.
¶ 43 CHIEF JUSTICE ANNE M. BURKE, specially concurring:
¶ 44 I agree with the majority that the judgment of the appellate court must be reversed. However, I reach that result for different reasons and, therefore, specially concur.
¶ 45 The plaintiff parents filed a medical malpractice action against the defendant
¶ 46 Plaintiffs filed a timely notice of appeal that referenced both the September 17 and September 23 orders. However, in the appellate court, plaintiffs expressly abandoned any objection to the September 23 order, stating in their opening brief that “this appeal is not based upon the verdict of the jury.” Instead, plaintiffs explained that the “appeal reviews the trial court‘s order granting a partial directed verdict in favor of the Defendant on the Plaintiffs’ theory of negligence based upon the doctrine of informed consent.”
¶ 47 The appellate court agreed with plaintiffs that the trial court had “erred by granting a partial directed verdict” on the claim of lack of informed consent. Crim v. Dietrich, 2016 IL App (4th) 150843, ¶ 48 (Crim I). The appellate court did not, in any respect, address the claim of negligent delivery. At the conclusion of its opinion, the appellate court stated that the “trial court‘s judgment” was “[r]eversed” and the “cause remanded.” Id. ¶ 51-52. The court‘s mandate stated that “the order on appeal from the circuit court be REVERSED and the cause be REMANDED to the Circuit Court for the Eighth Judicial Circuit Adams County, for such other proceedings as required by order of this court.”
¶ 48 On remand in the trial court, defendant filed a motion in limine to bar the presentation of any evidence relating to plaintiffs’ negligent delivery claim. Defendant maintained that, because the September 23, 2015, judgment had not been reversed by the appellate court, the remand proceedings should be limited solely to a new trial on the informed consent claim. Plaintiffs, in response, argued that the appellate court had, in fact, reversed the judgment order of September 23, 2015, and, therefore, they were entitled to a trial de novo on both claims. The trial court denied defendant‘s motion in limine but certified the following question under
¶ 49 At first glance, it would seem there should have been no question as to how the trial court should have proceeded on remand following the appellate court‘s decision in Crim I. After all, the only claim that was addressed by the appellate court in Crim I was the informed consent claim. The court did not address the negligent delivery claim, let alone find any error in the verdict or judgment rendered in defendant‘s favor on that claim.
¶ 50 A question arose, however, because plaintiffs contended that, under a long
¶ 51 The legal issue presented by the certified question in this case is whether a mistaken partial directed verdict is an error “prior to the entry of judgment” within the meaning of cases such as Roggenbuck. This is how the appellate court in Crim II approached the certified question. Crim II cited the rule relied upon by plaintiffs and, based on that rule, concluded the mandate in Crim I necessarily reversed the judgment entered by the trial court on September 23, 2015. See Crim II, 2018 IL App (4th) 170864-U, ¶ 38-44. I disagree.
¶ 52 Plaintiffs’ position in this case rests on a misunderstanding of the nature of directed verdicts. A judgment ” ‘is a court‘s official decision with respect to the rights and obligations of the parties to a lawsuit.’ ” People ex rel. Department of Public Aid v. Smith, 212 Ill. 2d 389, 398 (2004) (quoting In re Marriage of Logston, 103 Ill. 2d 266, 277 (1984));
¶ 53 When the trial court in this case granted defendant‘s motion for a directed verdict on the informed consent claim on
¶ 54 JUSTICE KILBRIDE, dissenting:
¶ 55 In my view, the majority errs in answering the certified question. I believe the petition for leave to appeal was improvidently granted and this is not a proper appeal under
I. The Petition for Leave to Appeal Was Improvidently Granted
¶ 56 This court should dismiss this appeal as improvidently granted.
“[T]he general importance of the question presented; the existence of a conflict between the decision sought to be reviewed and a decision of the Supreme Court, or of another division of the Appellate Court; the need for the exercise of the Supreme Court‘s supervisory authority; and the final or interlocutory character of the judgment sought to be reviewed.”
¶ 57 Here, the judgment sought to be reviewed was interlocutory. The appellate court‘s unpublished order did not create any conflict with this court or with another division of the appellate court, nor did it address a question of general importance. The trial court certified the following question: “Whether the ruling of the appellate court, 2016 IL App (4th) 150843, reversing the judgment and remanding this case for a new trial requires a trial de novo on all claims.” This is an entirely case-specific question. It is important to the parties in the case, but it is not of general importance. Finally, there is no need for the exercise of our supervisory authority. The certified question was directed to the very court that issued the mandate in question, and that court has provided an answer. This case is the quintessential example of the type of case this court will not review under
II. This Is Not a Proper Rule 308 Appeal
A. The Proper Analysis
¶ 58 If the court does not dismiss the appeal as improvidently granted, it should hold that this was an improper Rule 308 appeal, vacate the appellate court‘s order, and remand the case to the trial court. The trial court‘s certified question was not a proper use of Rule 308.
¶ 59 This court has been very clear about Rule 308‘s requirements for a proper
“[w]hen the trial court, in making an interlocutory order not otherwise appealable, finds that the order involves a question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, the court shall so state in writing, identifying the question of law involved.”
Ill. S. Ct. R. 308(a) (eff. July 1, 2017).
¶ 60 In Rozsavolgyi v. City of Aurora, 2017 IL 121048, ¶ 21, this court explained that certified questions are questions of law and they may not seek an application of law to the facts of a specific case. This court further explained that, if the answer to the question is dependent upon the underlying facts of a case, the certified question is improper. Rozsavolgyi, 2017 IL 121048, ¶ 21. This court also stated that Rule 308 should be reserved for exceptional circumstances. Rozsavolgyi, 2017 IL 121048, ¶ 21. Further, there must be substantial grounds for disagreement on the question of law. This court explained that
“[t]he substantial grounds for difference of opinion prong in Rule 308 has been satisfied in instances where the question of law had not been directly addressed by the appellate or supreme court (In re Estate of Kleine, 2015 IL App (2d) 150063, ¶ 14) or where there is a conflict between appellate districts or with the Illinois Supreme Court (Johannsen v. General Foods Corp., 146 Ill. App. 3d 296, 298-99 (1986)).” Rozsavolgyi, 2017 IL 121048, ¶ 32.
The court went on to explain that, if there was applicable appellate court case law on the issue, then it was “questionable at best” whether the certified question was proper. Rozsavolgyi, 2017 IL 121048, ¶ 32; see also Hampton v. Metropolitan Water Reclamation District, 2016 IL 119861, ¶ 39 (Burke, J., specially concurring, joined by Freeman and Kilbride, JJ.) (noting that a certified question is improper when there is “black letter law” on an issue).
¶ 61 It is obvious, then, that the certified question here is improper. The question asked what the mandate in the previous appeal meant for these parties. It is an entirely case-specific question that could not bear on factual situations other than the one before the court.
¶ 62 The question did not ask the court to resolve a pure question of law involving substantial grounds for disagreement. Defendant argued in the trial court that the dispositive fact was that plaintiffs had not filed a posttrial motion in Crim v. Dietrich, 2016 IL App (4th) 150843 (Crim I). Accordingly, defendant argued that the new trial should be limited to the informed consent count. Plaintiffs argued that the dispositive fact was that the appellate court had issued a general remand. Plaintiffs contended this meant that the new trial should be on both counts. Both parties cited cases in support of their positions. The parties asked the court to decide the case based on the cited law.
¶ 63 When the case went up to the appellate court, the parties made the same arguments they did in the trial court, and
B. The Majority‘s Analysis
¶ 64 The majority first claims that, if the certified question were asking the appellate court to clarify what it “intended” or “meant” when it issued its mandate, then the certified question would be improper. Supra ¶¶ 17-21. According to the majority, this would be an improper attempt to revest the appellate court with jurisdiction to reconsider the merits of a case previously decided. Supra ¶ 21. There is evidence in the record that this is exactly what the parties assumed was the purpose of the certified question. When agreeing to the
¶ 65 The majority claims that this is not what the certified question was asking. According to the majority, the certified question was proper because it sought to ascertain the legal effect of Crim I‘s holding, and this is a question that can be answered only by applying “relevant legal principles and interpretation of the law.” Supra ¶ 20. In Rozsavolgyi, however, this court held Rule 308 “should be reserved for exceptional circumstances.” Rozsavolgyi, 2017 IL 121048, ¶ 21. I cannot imagine that what we meant by “exceptional circumstances” was a court simply being asked to apply or interpret the law.
¶ 66 The majority further contends that the certified question is no different from one involving statutory construction and “requests no more of this court, or the appellate court below, than what reviewing courts are regularly tasked to perform: Resolve legal questions regarding the effects a prior decision has on a pending case.”5 Supra ¶ 21. The majority cites Hampton, 2016 IL 119861, ¶ 6, for this proposition. Several problems are evident. First, construing a mandate is nothing like construing a statute or an opinion. Opinions establish controlling precedent for future cases. Statutes have general applicability and may be construed without regard to the facts of a particular case. Indeed, they must be construed without regard to the facts of the underlying case for the certified question to be proper. In De Bouse v. Bayer AG, 235 Ill. 2d 544, 556-57 (2009)
¶ 67 A mandate is, by its very nature, specific to the case. It is relevant only to the parties in the case before the court. This question was asking what a specific mandate meant for the specific parties before the court. Additionally, the primary goal of statutory construction is to ascertain and give effect to the intent of the drafters. In re Michael D., 2015 IL 119178, ¶ 9. Here, the majority holds that any attempt to ascertain the intent of the court that issued the mandate would be improper. Supra ¶ 21.
¶ 68 Finally, this case is nothing like Hampton. Indeed, that case highlights the problem with the certified question in this case. In Hampton, the trial court certified the question ” ‘Does Arkansas Game and Fish Commission v. U.S.[,] 133 S. Ct. 511 (2012), overrule the Illinois Supreme Court‘s holding in People ex rel. Pratt v. Rosenfield, 399 Ill. 247 (1948)[,] that temporary flooding is not a taking?’ ” Hampton, 2016 IL 119861, ¶ 1. There, the trial court believed that, before it could proceed, it needed to know whether the relevant precedent from this court was still good law. The certified question was a pure question of law that could be answered without reference to the underlying case. Here, by contrast, the question was asking what the court‘s mandate in the previous appeal meant for the parties in this specific case. The trial court, however, had all the law it needed to resolve this question and to rule on the motion in limine. The majority‘s assertion that a proper use of Rule 308 is to determine the effects that previous decisions have on the pending case (supra ¶ 21) contradicts this court‘s prior case law on Rule 308 (see, e.g., Rozsavolgyi, 2017 IL 121048, ¶ 21).
¶ 69 In my view, the majority also ignores the “substantial grounds for disagreement” requirement. As noted above, this court has found substantial grounds for disagreement when there is a conflict between the appellate court districts or between the appellate court and this court or when the question has never been addressed by the appellate court or this court. In those scenarios, the appellate court clarifies the law for the trial court. Those criteria do not apply here, however. Of course, no court has ever addressed
¶ 70 Again, we said in Rozsavolgyi that, when there is applicable appellate case law, “it is questionable at best whether a substantial difference of opinion exists so as to support certification of this question.” Rozsavolgyi, 2017 IL 121048, ¶ 32; see also Hampton, 2016 IL 119861 (2016), ¶ 39 (Burke, J., specially concurring, joined by Freeman and Kilbride, JJ.) (noting that when there is “black letter law” on an issue, a certified question is improper). The appellate court relied on the rule that, when a case is remanded with directions to proceed in conformity with the opinion, then the trial court should examine the opinion to determine how to proceed. See Crim v. Dietrich, 2018 IL App (4th) 170864-U, ¶ 40 (Crim II) (citing Clemons v. Mechanical Devices Co., 202 Ill. 2d 344, 353 (2002)). This is a case-specific inquiry, and no general rule of law can be set forth. Accordingly, I would decline to answer the certified question.
III. Merits
¶ 71 For the reasons set forth above, I would not answer the certified question. Nevertheless, I will respond to the majority‘s analysis because I believe it rests upon a fundamental error, confusing a party‘s forfeiture of an argument with a reviewing court‘s power to grant relief.
¶ 72 The majority states that it finds “merit in defendant‘s argument that the ruling in Crim I could not require a new trial de novo on all claims due to plaintiffs’ failure to challenge the jury‘s verdict pursuant to the requirements of section 2-1202 of the Code of Civil Procedure (
“The foregoing constitutional provisions and the decisions of the supreme court in People ex rel. Stamos v. Jones (1968), 40 Ill. 2d 62, 237 N.E.2d 495, and People v. Taylor (1971), 50 Ill. 2d 136, 277 N.E.2d 878, make clear that the legislature no longer has power to determine the jurisdiction of the appellate court. In People ex rel. Stamos v. Jones, the court held invalid section 121-6(b) of the then existing Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1967, ch. 38, par. 121-6(b)), purporting to prohibit the stay of a sentence for the conviction of a forcible felony. The rationale of the decision was that the Judicial Article of 1962 ‘placed responsibility for rules governing appeal in the Supreme Court, and not in the General Assembly’ (40 Ill. 2d 62, 66, 237 N.E.2d 495, 498). In Taylor, the court reiterated that the legislature had no right to participate in determining the jurisdiction of the appellate court to entertain appeals from the circuit court. Taylor held invalid the then existing section 109-3(e) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1967, ch. 38, par. 109-3(e)) purporting to make unappealable an order suppressing evidence made at preliminary hearing.”
¶ 74 Defendant claims that forfeiture for failure to file a posttrial motion is an exception to the above rule and that a court cannot overlook a forfeiture where the General Assembly has barred litigants from obtaining relief in a court of review. Defendant goes so far as to say that no Illinois court has ever determined that it was authorized to order a new trial of a jury‘s verdict in the absence of a posttrial motion. In support, defendant cites American National Bank & Trust Co. of Chicago v. J&G Restaurant, Inc., 94 Ill. App. 3d 318, 319 (1981). In that case, the defendant failed to file a posttrial motion following a jury trial, and the appellate court stated that, because of the defendant‘s forfeiture, it was “legally unable to decide any of the substantive issues raised on appeal.” American National Bank, 94 Ill. App. 3d at 319.
¶ 75 Defendant is incorrect. In Schutzenhofer v. Granite City Steel Co., 93 Ill. 2d 208 (1982), this court awarded the defendant a new trial even though the defendant had not filed a posttrial motion seeking a new trial. The plaintiff had obtained a pretrial partial summary judgment on the issue of whether defendant was a common carrier engaged in interstate commerce. Schutzenhofer, 93 Ill. 2d at 210. Defendant had denied its interstate status and argued that the plaintiff‘s exclusive remedy was in the Workmen‘s Compensation Act (
“[T]he scope of our review is not confined merely to the issues preserved for appeal. (See Inolex Corp. v. Rosewell (1978), 72 Ill. 2d 198, 201. See also People ex rel. Peoria Civic Center Authority v. Vonachen (1975), 62 Ill. 2d 179.) This court has interpreted our own
Rule 341(e)(7) (73 Ill. 2d R. 341(e)(7)), which expresses the waiver doctrine, as ‘an admonition to the parties, not a limitation upon the jurisdiction of the reviewing court.’ (Hux v. Raben (1967), 38 Ill. 2d 223, 224.) Moreover, Rule 366, which has been held analogous to the plain error doctrine in criminal review (38 Ill. 2d 223, 224), provides: ‘(a) Powers. In all appeals the reviewing court may, inits discretion, and on such terms as it deems just *** (5) give any judgment and make any order *** and further orders and grant any relief *** that the case may require.’ ” Schutzenhofer, 93 Ill. 2d at 210-11.
The court then determined that the appropriate remedy was a new trial, even though the defendant had not sought that relief. Schutzenhofer, 93 Ill. 2d at 213.
¶ 76 Schutzenhofer establishes (1) that this court has indeed ordered a new trial in the absence of a posttrial motion, even when a party has acknowledged that it was not asking for a new trial and had forfeited the right to ask for one, and (2) that the same considerations allowing this court to ignore forfeitures for other reasons apply equally to forfeitures for failure to file a posttrial motion. See also Johnson v. Transport International Pool, Inc., 345 Ill. App. 3d 471, 474 (2003) (“Our supreme court has held that procedural default, including forfeiture by failure to file a posttrial motion, does not limit the jurisdiction of the reviewing court.“).
¶ 77 The appellate court unquestionably had jurisdiction to order a new trial on the negligent delivery claim. See
¶ 78 The majority claims that there is “no authority *** for the proposition that a notice of appeal or an appellate brief removes the statutory requirement of section 2-1202.” Supra ¶ 39. The majority further claims that, if the court were to adopt such an interpretation, it would render section 2-1202 meaningless. Supra ¶ 39. The majority has the balance of power backwards. The legislature cannot restrict the jurisdiction of the appellate court, nor can it undermine the powers of the reviewing court granted by this court in Rule 366(a). Recognizing this fact in no way renders section 2-1202 meaningless. Rather, it just acknowledges what this court has said for decades: forfeiture is a limitation on the parties and not on the jurisdiction of a reviewing court. Klaine, 2016 IL 118217, ¶ 41.
¶ 79 I emphasize that this dissent should not be read as questioning the significant policy justifications behind the posttrial motion requirement set forth in the majority opinion, nor should it be read as suggesting that forfeitures of this kind should be excused lightly. This discussion is only intended to point out that the majority errs in endorsing defendant‘s argument that a reviewing court does not have the authority to order a new trial in a jury case in the absence of a posttrial motion.
¶ 80 The problem with the majority‘s position can be identified by changing the facts of this case just slightly. Say that the plaintiffs failed to file a posttrial motion, but this was simply a result of a good faith,
¶ 81 The certified question, then, is not answered correctly by stating that the appellate court in Crim I could not have remanded for a trial de novo on both claims because plaintiffs failed to file a posttrial motion. Whether plaintiffs forfeited their right to ask for a new trial on the negligent delivery claim by failing to file a posttrial motion is solely a Crim I issue. It is too late to answer that question now. We may not revisit Crim I after that case became final. The only issue in Crim II was the legal effect of the general mandate that the appellate court issued in Crim I. By revisiting Crim I after that case became final, the majority has allowed defendant an impermissible collateral attack on Crim I.
IV. Conclusion
¶ 82 I would not answer the certified question. In my view, this court improvidently granted the petition for leave to appeal, and the certified question was not a proper use of Rule 308. I also disagree with the majority‘s decision on the merits. In answering the certified question, the majority uses an analysis at odds with this court‘s rules and case law and mistakenly affords the legislature the power to restrict the authority of reviewing courts to grant relief on forfeited claims. Accordingly, I respectfully dissent.
¶ 83 JUSTICE MICHAEL J. BURKE took no part in the consideration or decision of this case.