Cardona v. Granado

FIRST DIVISION
November 19, 2007
Nos. 1-07-0942 and 1-07-0943, Consolidated
ROSA CARDONA, individually, and as a ) Appeal from the
mother and next friend of FILBERTO ) Circuit Court of
CARDONA, a minor, ) Cook County.
)
Plaintiff-Appellant-Cross- )
Appellee, )
)
v. )
)
DR. ALFONSO DEL GRANADO, )
) Honorable
Defendant-Appellee-Cross- ) James P. Flannery,
Appellant. ) Judge Presiding.
JUSTICE WOLFSON delivered the opinion of the court:
Following a trial on the plaintiff’s medical malpractice
complaint, the jury returned a verdict for the plaintiff,
awarding $300,000 for future medical expenses and no other
damages. The plaintiff filed a motion requesting a new trial on
damages only. The trial court sua sponte ordered a new trial on
all issues, including liability and damages. Neither side is
happy with that decision. Both appeal it.
Plaintiff contends the court lacked subject matter
jurisdiction to order a new trial where neither party requested
one. Defendant contends the court abused its discretion in
ordering a new trial and should have let the original verdict
stand. We affirm the trial court’s grant of a new trial on all
issues.
1-07-0942)
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FACTS
The plaintiff, Rosa Cardona, filed a medical malpractice
complaint against defendant Dr. Alfonso Del Granado, on behalf of
her disabled son Filiberto Cardona, Jr. Plaintiff alleged
defendant’s negligence during the birth of her son caused
Filiberto to sustain moderate to severe mental retardation. As
far as we can tell from the record, defendant’s experts testified
that Filiberto’s condition was not caused by any acts or
omissions of Dr. Del Granado. It is unclear from this record
what evidence was introduced by the plaintiff.
The jury reached a verdict in favor of plaintiff and against
defendant, awarding plaintiff $300,000 for the present cash value
of future medical expenses. The jury awarded no damages for loss
of a normal life, pain and suffering, or the value of future
earnings. The trial court entered judgment on the jury’s
verdict.
Plaintiff filed a post-trial motion seeking a new trial on
damages only. Plaintiff contended the jury’s failure to award
any damages for loss of a normal life in the face of undisputed
evidence to the contrary was against the manifest weight of the
evidence. Plaintiff did not contest the jury’s failure to award
damages for pain and suffering or loss of future earnings. In
defendant’s response, he argued the jury’s verdict should stand
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because the damage award was consistent with the evidence at
trial. As a fallback, he argued a new trial on damages alone
would be inappropriate because the issues of liability and
damages were inextricably intertwined.
The trial court denied plaintiff’s motion for a new trial on
damages only, vacated the judgment order against defendant, and
granted a new trial on all issues, including liability and
damages. The court said:
"The Court feels that the issues are
intertwined. The Court feels that the
verdict was a compromised verdict, and at
this time the order is that there be a new
trial on all issues."
Plaintiff moved to amend the court’s ruling nunc pro tunc to
have the order indicate plaintiff’s post-trial motion was denied.
Defendant filed a motion for reconsideration asking the court to
reconsider its order granting a new trial and affirm its order
entering judgment on the jury verdict. The court allowed
plaintiff’s motion and denied defendant’s motion. Following
argument on the motions, the court held:
"[A]t this time, based on the evidence and
the law that the Court heard during the
trial, this should have been a not guilty.
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It was not a not guilty. If the jury found
for the plaintiff, the jury absolutely should
have found for loss of a normal life. It did
not.
The Court believes, based on the verdict
of the jury and the evidence that was heard,
that this was a compromised verdict where the
issues of damage and liability are
incompliant [sic]."
In her appeal, plaintiff contends the court lacked subject
matter jurisdiction to order a new trial on all issues because
plaintiff never sought such relief in her post-trial motion and
defendant never filed a cross-post-trial motion.
In his appeal, the defendant contends the court abused its
discretion in ordering a new trial where the verdict was
consistent with the evidence.
DECISION
I. Subject Matter Jurisdiction--Plaintiff’s Appeal
The plaintiff contends a trial court does not have
jurisdiction to sua sponte order relief from a jury verdict or go
beyond the relief sought by the parties in a post-trial motion.
The trial court’s subject matter jurisdiction over the
proceedings is an issue of law which we review de novo. In re
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Estate of Ahern, 359 Ill. App. 3d 805, 809, 835 N.E.2d 95 (2005).
Plaintiff relies on section 2-1202 of the Code of Civil
Procedure, which provides that a post-trial motion for new trial
"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*** The Court must rule upon all
relief sought in all post-trial motions." 735 ILCS 5/2-1202(b),
(f) (West 2004).
We note section 2-1202(e) is directed at a party who fails
to seek a new trial in its post-trial motion. The section
provides that party “waives the right to apply for a new trial.”
(Emphasis added.) 735 ILCS 5/2-1202(e) (West 2004). It does not
say the trial court lacks authority to grant whatever relief it
believes appropriate. The defendant did not want a new trial; he
was satisfied with the jury’s verdict.
We do not agree that section 2-1202 limits the trial court’s
authority to order a new trial on all issues, whether or not a
party requests such relief.
In Freeman v. Chicago Transit Authority, 33 Ill. 2d 103, 210
N.E.2d 191 (1965), the trial court on its own motion set aside
the special finding of the jury on the ground that it was against
the manifest weight of the evidence. The court then entered
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judgment on the verdicts. The supreme court held it was within
the trial court’s authority to do so. Freeman, 33 Ill. 2d at
105-106. The court rejected the notion that section 68.1(2) of
the Civil Practice Act (the predecessor to section 2-1202) barred
a trial judge from considering any grounds not raised by a party
in its written post-trial motion:
"While the section thus confines a litigant,
upon appeal, to those matters specifically
raised in the trial court, it contains
nothing that suggests an intention to
interfere with the power of a trial court to
act upon its own motion.
The function of a trial judge in
determining whether the answer to a special
interrogatory is against the manifest weight
of the evidence is analogous to his function
in determining whether a general verdict is
against the weight of the evidence, and his
authority to act upon his own motion should
be the same in both instances. Orders
granting new trials were not appealable at
all until the Civil Practice Act became
effective in 1934, and apparently the
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authority of a trial court to grant a new
trial on its own motion has not been
considered by this court. But in those
jurisdictions that have considered the
question the power is firmly established.
[Citations.] These decisions are based upon
a recognition that the role of a trial judge
is not that of a presiding officer or an
umpire, and that he is responsible for the
justice of the judgment that he enters. The
defendant’s argument would take away that
responsibility and tend to reduce his role to
that of an automaton." Freeman, 33 Ill. 2d
at 105-106.
In Winters v. Kline, 344 Ill. App. 3d 919, 801 N.E.2d 984
(2003), the plaintiff had filed a post-trial motion seeking a new
trial on damages only. Winters, 344 Ill. App. 3d at 924. As in
this case, the defendants filed a response arguing the jury’s
verdict was consistent with the evidence. Alternatively,
defendants contended that if a new trial were ordered, it should
be of the entire case on all issues. The defendants did not file
a post-trial motion. The trial court granted plaintiff’s motion,
ordering a new trial on damages only. Defendants filed an
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emergency motion to reconsider, contending a new trial on damages
was inappropriate where the issues of liability and damages were
intertwined, liability was contested, and there was evidence of a
compromise verdict. Winters, 344 Ill. App. 3d at 924. The trial
court then ordered a new trial on liability and damages. We
affirmed that order. We held it was within the trial court’s
power to modify its interlocutory order, post-trial motion or
not. Winters, 344 Ill. App. 3d at 927-28. There was no abuse of
discretion. Winters, 344 Ill. App. 3d at 929. See Freeman, 33
Ill. 2d at 106.
The cases plaintiff cites have little or nothing to do with
the facts of this case and do not support her contention
regarding the trial court’s jurisdiction. See Maloney v. Bower,
113 Ill. 2d 473, 478, 498 N.E.2d 1102 (1986) (chief judge of
circuit court did not have authority to appoint office of public
defender to represent indigents in civil contempt proceedings);
J.H. v. Ada S. McKinley Community Services, 369 Ill. App. 3d 803,
808, 861 N.E.2d 320 (2006) (trial court could not sua sponte,
without a hearing or notice, appoint a guardian ad litem for
competent adult plaintiffs who were represented by counsel); In
re Custody of Ayala, 344 Ill. App. 3d 574, 585, 800 N.E.2d 524
(2003) (court exceeded its jurisdiction in awarding joint co-
custodial care of minor to third parties where no pleading
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requested this relief); In re General Order of March 15, 1993,
258 Ill. App. 3d 13, 17, 629 N.E.2d 673 (1994) (trial court may
not invoke its power to declare an attorney in contempt and,
consequently, disbar or suspend him or her from appearing before
it); In re Marriage of Fox, 191 Ill. App. 3d 514, 520, 548 N.E.2d
71 (1989) (a petition for contempt with respect to visitation in
a dissolution proceeding did not present to the trial court a
"justiciable matter" sufficient for the trial court to make a
child custody determination); Ottwell v. Ottwell, 167 Ill. App.
3d 901, 908-909, 522 N.E.2d 328 (1988) (court’s orders regarding
child support were void for lack of jurisdiction in action
brought by Department of Public Aid against husband, where no
petition to modify child support was filed).
The trial court in this case retained jurisdiction over
plaintiff’s lawsuit because plaintiff timely filed a post-trial
motion challenging the court’s judgment on the jury’s verdict.
The fact that plaintiff sought a new trial limited to the issue
of damages has nothing to do with the court’s jurisdiction over
the entire case. Nor can plaintiff say the trial court decided
an issue that was not before it. Plaintiff placed the issue of
the jury’s verdict before the court when she filed her post-trial
motion.
We reject plaintiff’s contention that the trial court lacked
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jurisdiction to order a new trial.
We next address plaintiff’s contention that the trial court
should have granted her motion for a new trial on damages only.
Although plaintiff addresses this argument in her response brief
to defendant’s appeal, she fails to include the argument in her
own appeal of the trial court’s order. We find plaintiff has
waived the argument.
The supreme court rules provide, "[p]oints not argued [in
the initial brief] are waived and shall not be raised in the
reply brief, in oral argument, or on petition for rehearing."
210 Ill. 2d R. 341(h)(7); People v. Pecor, 153 Ill. 2d 109, 116,
606 N.E.2d 1127 (1992). Plaintiff’s inclusion of the argument in
her response to defendant’s appeal is an inappropriate response
to defendant’s contention that the trial court abused its
discretion in granting a new trial.
Were we to address plaintiff’s contention, we would find the
court did not abuse its discretion in denying plaintiff’s motion.
The map for new trial territory is clearly drawn:
"A new trial limited to the question of
damages will be granted only where: (1) the
jury’s verdict on the question of liability
is amply supported by the evidence; (2) the
questions of liability and damages are
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sufficiently distinct such that a trial
limited to the question of damages would not
be unfair to the defendant; and (3) the
record suggests neither that the jury reached
a compromise verdict, nor that, in some
identifiable manner, the error which resulted
in the jury’s awarding inadequate damages
also affected its verdict on the question of
liability." Winters, 344 Ill. App. 3d at
925, citing Midland Hotel Corp. v. Reuben H.
Donnelly Corp., 118 Ill. 2d 306, 319-20, 515
N.E.2d 61 (1987).
The plaintiff bears the burden of showing the jury’s verdict
was not a compromise of liability against damages. Winters, 344
Ill. App. 3d at 926. Plaintiff cannot possibly sustain that
burden when she does not include in the record any liability
testimony given at trial by her expert witnesses. Without a more
complete record we cannot begin to address the compromise issue.
II. Abuse of Discretion--Defendant’s Appeal
Initially, plaintiff contends defendant lacks standing to
challenge the trial court’s order granting a new trial because he
did not file a post-trial motion seeking a new trial or a
judgment n.o.v. Plaintiff’s argument borders on the nonsensical.
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Defendant was not seeking relief from the judgment reached by the
jury. Rather, he sought relief from the trial court’s
interlocutory order vacating the judgment and granting a new
trial on all issues. Defendant was not required to file a motion
for new trial or a judgement n.o.v. in order to challenge the
court’s order. See Winters, 344 Ill. App. 3d at 928. We find
the defendant has standing to challenge the trial court’s order
on appeal.
Defendant contends the trial court abused its discretion by
discarding the jury’s verdict and ordering a new trial. We
disagree.
“A trial court’s ruling on a motion for a new trial will not
be reversed unless there is an affirmative showing that it
clearly abused its discretion.” Winters, 344 Ill. App. 3d at
925, citing Maple v. Gustafson, 151 Ill. 2d 445, 455, 603 N.E.2d
508 (1992). A court abuses its discretion only where its ruling
is "arbitrary, fanciful, or unreasonable, or where no reasonable
person would adopt the court’s view." Evitts v. DaimlerChrysler
Motors Corp., 359 Ill. App. 3d 504, 513, 834 N.E.2d 942 (2005).
A jury verdict that indicates compromises were made on
damages and liability cannot be allowed to stand. Winters, 344
Ill. App. 3d at 926; Svetanoff v. Kramer, 80 Ill. App. 3d 575,
578, 400 N.E.2d 1 (1979). “While a verdict of zero damages is
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proper if there is evidence no damages were suffered, an award of
damages that does not bear a reasonable relationship to the
evidence is an indication of a compromise verdict.” Winters, 344
Ill. App. 3d at 926. “The standard to test whether a verdict
resulted from a compromise is whether the verdict on the issue of
liability was amply supported by the evidence.” Vacala v.
Village of LaGrange Park, 260 Ill. App. 3d 599, 618, 636 N.E.2d
812 (1994).
For the same reasons we refuse to address plaintiff’s
contention that the jury’s verdict was not a compromise verdict,
we cannot address defendant’s claim that there should be no new
trial. That is, we are not given the testimony of plaintiff’s
experts on the issue of liability.
While we recognize a rough apportionment of damages between
the innocent cause and the negligent cause of an injury may be
appropriate in some cases (Glassman v. St. Joseph Hospital, 259
Ill. App. 3d 730, 631 N.E.2d 1186 (1994)), we find the record in
this case is inadequate for us to determine whether a reasonable
basis exists for the jury’s verdict.
Supreme Court Rule 306(g) provides that: “If leave to appeal
is allowed, any party to the appeal may request that additional
portions of the record on appeal be prepared ***.” 210 Ill. 2d
R. 306(g). Defendant, as the cross-appellant, bears the burden
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of providing a sufficiently complete record to support his claim
of error. Foutch v. O’Bryant, 99 Ill. 2d 389, 391-92, 459 N.E.2d
958 (1984). In the absence of an adequate record, we must
presume the trial court’s order was entered in conformity with
the law and had a sufficient factual basis. Foutch, 99 Ill. 2d
at 392.
The record in this case consists almost entirely of excerpts
from the trial testimony of defendant’s expert witnesses. All of
defendant’s witnesses uniformly testified that defendant was not
responsible for plaintiff’s injury. The jury, however,
determined defendant was liable and awarded $300,000 in damages
for medical costs. Nothing in the record before us indicates the
jury’s verdict was an attempt to apportion damages between an
innocent cause and a negligent cause of plaintiff’s injury. Any
evidence indicating defendant was even partially responsible for
plaintiff’s injury has not been included in the record.
Due to the inadequate nature of the record in this case,
meaningful review of the defendant’s contention is impossible.
Accordingly, we presume the trial court’s order was entered in
conformity with the law and had a sufficient factual basis. See
Foutch, 99 Ill. 2d at 392. The trial court’s grant of a new
trial on all issues is affirmed.
Affirmed.
GARCIA, and R. GORDON, JJ., concur.
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