2015 IL App (1st) 131863 No. 1-13-1863 Opinion Filed June 12, 2015 Sixth Division
______________________________________________________________________________ IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
__________________________________________________________________________
KEVIN L. BURKHAMER, ) Appeal from the Circuit Court of ) Cook County. Plaintiff-Appellant, ) ) No. 09 L 12116 v. ) ) MEL RICHARD KRUMSKE, ) ) Honorable Defendant-Appellee. ) Arnette R. Hubbard, ) Judge Presiding.
______________________________________________________________________________
JUSTICE HALL delivered the judgment of the court, with opinion. Presiding Justice Hoffman and Justice Rochford concurred in the judgment and opinion.
OPINION
No. 1-13-1863 ¶1 Pursuant to Illinois Supreme Court Rule 306(a)(1) (eff. July 1, 2014), the plaintiff, Kevin
Burkhamer, filed a petition for leave to appeal from an order of the circuit court of Cook
County granting a new trial to the defendant, Mel Richard Krumske. We allowed the
petition. On appeal, the plaintiff contends that the trial court erred in ordering a new trial and
that the trial court abused its discretion when it granted the defendant a mistrial. ¶2 On September 9, 2008, the plaintiff was injured when he was struck by a car driven by
the defendant. At the time of the accident, the plaintiff was 33 years old and married with
three minor children. His employment included jobs as an ironworker and an excavator. He
also did farming and repaired welding equipment. All of his jobs required the use of his
hands. ¶3 The plaintiff filed a personal injury complaint against the defendant. The defendant
admitted negligence, and the parties agreed to excuse the defendant from attending the trial
due to his poor health condition. The case proceeded to a jury trial on damages. ¶4 The plaintiff testified that following the accident, he suffered bruising on his hip, elbow
and shoulder on his left side. His left hand was numb, and he could not grab anything with it.
His neck and back were very sore. The plaintiff began to suffer dizziness as the result of his
head striking the windshield of the defendant's car and the pavement. ¶5 By the time of trial, the plaintiff's neck and back were better, and his symptoms were
reduced to a nagging and annoying pain. His left hand injury was finally resolved by
surgery, and his hand was close to normal. The plaintiff still suffered from dizziness
preventing him from doing ironwork and tossing his kids in the air while he was playing with
them. The dizziness also prevented him from participating in sports. The plaintiff's total
medical bills were just under $45,000.
No. 1-13-1863 ¶6 Each party presented expert medical testimony. In her evidence deposition, Dr. Julie
Wehner, the plaintiff's expert and a board-certified orthopedic surgeon, testified that in the
accident, the plaintiff sustained injuries, including contusions and sprains, a closed head
injury, aggravation of his preexisting degenerative spine condition, and a fracture of a carpel
bone in his left hand. The doctor opined that the accident caused the plaintiff's injuries and
resulted from the collision with the defendant's car. While his hand injury was resolved
through surgery and his other injuries would resolve over time, the doctor could not rule out
the need for further surgery to treat his degenerative spine condition. In her evidence
deposition, Dr. Elizabeth Kessler, the defendant's expert and a board-certified neurologist,
opined that the accident did not aggravate the plaintiff's preexisting degenerative spine
condition or cause his hand injury, based on his inconsistent descriptions of the accident to
the various medical providers who treated him, and the timing of his complaints of pain. ¶7 On direct examination, the plaintiff was asked if he ever had a conversation with the
defendant. After the plaintiff responded no, defense counsel objected. The trial court
sustained the objection on the basis of relevance. The plaintiff was then asked if he was
aware that the defendant had admitted negligence just before trial. When the plaintiff
answered yes, the trial court sustained defendant's objection and ordered the jury to
"disregard the mention of the timeline." The plaintiff was then asked if the defendant called
him to apologize. Defense counsel objected on the basis of relevance, and the trial court
granted his request for a sidebar. ¶8 During the sidebar, defense counsel argued that the plaintiff's line of questioning was
designed to inflame the jury and moved for a mistrial. The plaintiff's counsel denied that his
line of questioning was improper. He explained that the questioning was designed to show
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the effect the defendant's refusal to admit liability until the day of trial had on the plaintiff's
pain and suffering. Defense counsel pointed out that the plaintiff had denied suffering
emotional injuries from the accident and that the questions were an attempt to "smear my
client and make him look bad" to the jury and "to prejudice the jury emotionally against" the
defendant. ¶9 The trial court agreed that the line of questioning was improper and sustained the
objection. The court then expressed concern that the line of questioning might continue and
questioned whether an objection would be curative at this point in the trial. After the
plaintiff's counsel assured the court that he was at the very end of his direct examination of
the plaintiff, the trial court stated as follows:
"I'm going to take this motion [for mistrial] under advisement. I'm going to let us
proceed and then we will – I'll be able to determine this, of course the point is cited is
at the present. However, it may be possible that future conduct will be an appropriate
consideration of my ruling on this motion. All right?
[Defense counsel]: Okay." ¶ 10 In closing argument, the plaintiff requested that the jury award him damages in the
amount of $324,000, which included $44,000 for medical treatment. The defense counsel
argued that the evidence supported an award of $24,536, which included medical expenses,
and compensation for pain and suffering and loss of a normal life. The jury returned a
verdict for the plaintiff in the amount of $175,000: $50,000 for loss of a normal life, $50,000
for pain and suffering, $31,000 for future pain and suffering and $44, 000 for past medical
expenses. The trial court asked if there were any matters to address before it discharged the
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jury. When the plaintiff's counsel answered no, the court thanked the jurors for their service
and discharged them. ¶ 11 Defense counsel then reminded the trial court that his motion for mistrial was pending.
In arguing for a mistrial, defense counsel maintained that the plaintiff's line of questioning
and the fact that the defendant was not present for the trial prejudiced the jury against the
defendant. The excessive damage award to the plaintiff reflected that the jury sought to
punish the defendant rather than compensate the plaintiff for his injuries. The plaintiff's
counsel responded that since the defendant had admitted negligence, his questioning of the
plaintiff did not prejudice the defendant and that the jury's award was supported by the
evidence. The trial court then stated as follows:
"Looking at the overall facts together with the Jury's verdict and with the remarks
concerning defendant's actions more than once, and with those comments continuing
after the Court's sustaining the objections and the Court not being convinced that
there was a basis to justify those questions and, certainly, they did not – those
questions did not go to the defendant – the plaintiff's emotional state is that there was
no claim for emotional impact or damages based on any claim of emotional factor.
The Court (inaudible) is not persuaded that the impact of that kind of argument is
unknown to the person's [sic] before the Court.
The question is whether those circumstances were such that the Jury then made a
determination of an award substantially greater – I don't know if that should be
substantially, but in this case, perhaps substantially greater than it would have had not
that line of questioning been pursued.
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In the (inaudible) of negligence and argued as to sums that in defendant's mind,
reasonably compensated plaintiff, and plaintiff argued as to sums that would
reasonably compensate plaintiff, both are proper, but I'm looking at the amount in this
case, and in light of the testimony, and I am not persuaded that the jury did not return
[a] verdict inflated by passion. For this reason, the motion for a new trial is granted." ¶ 12 The plaintiff filed a motion to vacate the trial court's oral order granting a mistrial and a
new trial. The plaintiff also filed a motion to enter judgment on the verdict. ¶ 13 On May 17, 2013, the parties appeared before the trial court. Although the court had
requested that the defendant draft an order memorializing the terms of the court's May 16,
2013, oral ruling, the court declined to sign the proposed order, stating that the terms had
already been set forth on the record. In its May 23, 2013, order, the trial court denied the
plaintiff's motions to enter judgment on the verdict and to vacate the court's oral ruling
granting the motion for a mistrial. The trial court found that the defendant had not waived
his right to a mistrial because the court had not entered judgment on the verdict prior to
ruling on the motion for a mistrial. ¶ 14 Pursuant to Rule 306(a), the plaintiff filed for leave to appeal from the trial court's order
granting the defendant a new trial, which we allowed. ¶ 15 ANALYSIS ¶ 16 Rule 306 provides that "[a] party may petition for leave to appeal to the Appellate Court
from the following orders of the trial court: (1) from an order of the circuit court granting a
new trial." Ill. S. Ct. R. 306(a)(1) (eff. July 1, 2014). Prior to the enactment of the Civil
Practice Act in 1933 (the Act) (Ill. Rev. Stat. 1935, ch. 110, ¶¶ 125-218), parties had no right
to appeal a trial court's order granting a new trial. Stephans v. Chicago Transit Authority, 28
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Ill. App. 2d 229, 232 (1960). Section 77(2) of the Act provided that a party may appeal from
an order granting a new trial on leave of the reviewing court. Stephans, 28 Ill. App. 2d at
232; Ill. Rev. Stat. 1959, ch. 110, ¶ 77(2). Section 72(2), the precursor to Rule 306(a)(1),
was designed to prevent a proper verdict from being lost to the party who was clearly entitled
to it. Stephans, 28 Ill. App. 2d at 232; see Ill. S. Ct. R. 306, Committee Comments (revised
Sept. 1983) (Rule 306 replaced former Rule 30 which in turn was derived from former
section 77(2) of the Act) . ¶ 17 Appeals pursuant to Rule 306 are permissive. Ill. S. Ct. R. 306 (eff. Jan. 1, 2014). We
will grant leave to appeal if "[the petition] presents grounds which are reasonably debatable
and fairly challenge the propriety of the order [citation], or if it clearly demonstrates that the
circuit court abused its discretion by ordering the new trial." Allied American Insurance Co.
v. Culp, 243 Ill. App. 3d 490, 492 (1993). ¶ 18 A mistrial is defined as "either a trial 'that the judge brings to an end, without a
determination on the merits, because of a procedural error or serious misconduct occurring
during the proceedings,' or a trial that 'ends inconclusively because the jury cannot agree on a
verdict.' " Redmond v. Socha, 216 Ill. 2d 622, 640 (2005) (quoting Black's Law Dictionary
1023 (8th ed. 2004)). "A motion for a mistrial is a procedural tool designed to cut short a
trial for legal reasons which preclude a verdict and judgment." McGrath v. Chicago & North
Western Transportation Co., 190 Ill. App. 3d 276, 279 (1989). "This motion prevents parties
from getting two chances at a verdict." McGrath, 190 Ill. App. 3d at 279. A motion for a
mistrial must be made before a verdict is rendered; it is untimely if it is made either after the
verdict is rendered or a judgment is entered on the verdict. Joe & Dan International Corp. v.
United States Fidelity & Guaranty Co., 178 Ill. App. 3d 741, 745-46 (1988). "When the
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jury returns a unanimous verdict, a motion for mistrial is untimely and inappropriate."
Redmond, 216 Ill. 2d at 640. ¶ 19 The plaintiff contends that the motion for mistrial was untimely because the defendant
waited until after the jury returned its verdict to obtain a ruling on the motion. The defendant
maintains that his motion for mistrial was timely in that it was made during the questioning
of the plaintiff, and the trial court had not entered judgment on the verdict at the time he
requested a ruling on the motion. ¶ 20 In McGrath, the plaintiffs moved for a default judgment during the questioning of a
witness. The trial court considered the motion as one for mistrial and reserved its ruling.
The plaintiffs waited until the jury returned a verdict to seek a ruling on their motion for
mistrial. Although the trial court stated it would rule on the motion for mistrial prior to
entering judgment, the judgment was entered on the jury verdict without a ruling on the
mistrial motion. The plaintiffs filed a posttrial motion seeking a new trial contending, inter
alia, that the trial court should have granted the motion for mistrial. McGrath, 190 Ill. App.
3d at 279-80. This court ruled that the plaintiffs had waived their request for a mistrial as a
basis for a new trial by failing to ask for a ruling at the time the trial court determined their
request was one for a mistrial, and then by failing to renew the motion before the jury
returned its verdict. McGrath, 190 Ill. App. 3d at 280. ¶ 21 The record in the present case reflects that the defendant did not request an immediate
ruling at the time he moved for a mistrial and agreed to the trial court's reservation of the
ruling on the motion. At no time prior to the return of the verdict did the defendant seek a
ruling on the motion for mistrial. A movant has the responsibility to obtain a ruling on his
motion if he is to avoid forfeiture on appeal. Hernandez v. Pritikin, 2012 IL 113054, ¶ 41.
No. 1-13-1863 ¶ 22 The defendant finds support in Redmond, where the supreme court held that McGrath
"does not stand for the proposition that a verdict can never be set aside and a new trial
ordered once the jury in a civil case has reached a verdict. Rather, it stands for the
proposition that an error at trial that would be a sufficient basis for declaring a mistrial must
be asserted in a timely manner." Redmond, 216 Ill. 2d at 640. Redmond did not address a
motion for mistrial. Rather the court noted that "even when a jury has rendered a unanimous
verdict, making a motion for mistrial improper," a party may still seek a new trial based on
grounds which arise after the verdict is returned, such as inconsistent verdicts or that the
verdict is against the manifest weight of the evidence. Redmond, 216 Ill. 2d at 640-41.
Therefore, Redmond does not support the defendant's argument. ¶ 23 The defendant maintains that he was not required to file a posttrial motion to preserve his
right to seek a new trial, because the trial court declared a mistrial and, unlike the courts in
McGrath and Williams v. Deasel, 19 Ill. App. 3d 353 (1974), the court never entered
judgment on the verdict. See 735 ILCS 5/2-1202(c) (West 2012) (posttrial motions must be
filed within 30 days of the entry of judgment or the discharge of the jury if no verdict was
reached). ¶ 24 "Unless the verdict failed to express the intent of the jury and could not be understood by
the court," a trial court errs when it fails to enter a judgment on a jury verdict. Marotta v.
General Motors Corp., 108 Ill. 2d 168, 176-77 (1985); see 735 ILCS 5/2-1201(b) (West
2012) (prompt rendition of judgment on the verdict is mandatory). Our supreme court
explained the reason for the provision as follows:
"The provision for prompt entry of judgment appears to have been intended to make
uniform the commencement of the running of the time within which posttrial motions
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must be filed. Section 2-1202 *** provided that such motions must be filed within 30
days after the entry of judgment." Marotta, 108 Ill. 2d at 176. ¶ 25 No issue was raised in this case as to whether the verdict expressed the jury's intention or
whether the trial court understood the verdict. Therefore, the trial court erred when it failed
to enter judgment on the jury verdict in this case. The defendant's reliance on section 2-
1202(c) of the Code of Civil Procedure (735 ILCS 5/2-1202(c) (West 2012)) is misplaced.
Section 2-1202(c) did not prevent the defendant from filing a posttrial motion requesting a
new trial. It only provides a time limit for filing a posttrial motion. ¶ 26 The report of proceedings in this case reveals a failure to comply with the well-settled
rules of procedure. The court in Williams faced a similar situation, and its analysis is
instructive. ¶ 27 In Williams, the trial court entered judgment on a jury verdict for the plaintiff and
discharged the jury. The plaintiff then sought a ruling on his motion for mistrial based on the
defendant's argument concerning excluded medical evidence. The next day, the court
allowed the motion for mistrial, vacated the judgment and ordered a new trial. The defendant
appealed, and the appellate court granted leave to appeal from the order granting the new
trial. Williams, 19 Ill. App. 3d at 354. ¶ 28 On review, the appellate court observed that "no written motion of any kind was filed
before the trial judge after verdict and judgment. Instead plaintiff orally renewed his motion
to declare a mistrial." Williams, 19 Ill. App. 3d at 354. In his brief the plaintiff
acknowledged that the renewal of his motion was the only motion made after trial that could
be called a posttrial motion within the meaning of Rule 306. The court observed that there
were differences between a new trial and a mistrial, explaining as follows:
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" 'A mistrial and a new trial are not the same thing in name or effect. There is a
marked difference between a court's granting a motion for a new trial and declaring a
mistrial; the former contemplates that a case has been tried, a judgment rendered, and
on motion therefor said judgment set aside and a new trial granted, while the latter
results where, before a trial is completed and judgment rendered, the trial court
concludes that there is some error or irregularity that prevents a proper judgment
being rendered in which event a mistrial may be declared. A mistrial is a matter of
law, while a new trial results from the exercise of discretion; a mistrial is a nugatory
trial, while a new trial recognizes a completed trial which for sufficient reasons has
been set aside so that the issues may be tried or litigated de novo.' " Williams, 19 Ill.
App. 3d at 354-55 (quoting 66 C. J. S. New Trials §1(c) (19__).
The court further explained that the "mechanical and *** legal performance [of a mistrial
are] impossible after verdict, judgment, and discharge of the jury" and "can therefore be
utilized only as a pre-verdict motion and not a post-verdict or post-trial motion." Williams,
19 Ill. App. 3d at 355. ¶ 29 The court in Williams recognized that while a litigant must seek a new trial in his posttrial
motion or it is waived, the trial court may act on its own motion. Williams, 19 Ill. App. 3d at
355. However, the record in the case before it "negate[d] any thought that the trial court was
acting on its own motion, but affirmatively show[ed] that it was acting in specific response"
to the "motion to declare a mistrial. There was no authority for the trial court to entertain or
consider such a motion after verdict and judgment." Williams, 19 Ill. App. 3d at 355. The
court concluded as follows:
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"Orderly practice procedures are prescribed for the proper and expeditious disposition
of issues on review. Such procedures were not followed here. It was error on this
record for the trial court to set aside the verdict of the jury and grant a new trial and in
so doing, it followed no recognized or proper course of procedure. A mistrial after
verdict is unauthorized. No motion for new trial was ever filed. It is crystal clear
from this record that the trial judge did not grant a new trial on his own motion.
Under such circumstances, this court must reverse and remand to the circuit court
with directions to reinstate the verdict in favor of the plaintiff and against the
defendant." Williams, 19 Ill. App. 3d at 355-56. ¶ 30 As in Williams, the proper procedure for preserving issues for review was not followed in
this case. The defendant waived his motion for a mistrial by failing to seek a ruling on it
prior to the return of the jury's verdict and then failed to file a posttrial motion requesting a
new trial. See 735 ILCS 5/2-1202(e) (West 2012) (a party's failure to seek a new trial in his
posttrial motion waives the right to apply for a new trial). The trial court was not acting sua
sponte in ordering a new trial for the defendant but was responding to his request for a ruling
on his motion for mistrial. Therefore, the trial court had no authority to grant the defendant a
new trial. ¶ 31 We reject the defendant's argument that his request for a ruling on his motion for mistrial
was timely because it was made prior to the entry of the judgment. To accept the defendant's
argument would allow parties to wait until a verdict was reached and then decide whether to
accept a favorable verdict or assert a previous request for a mistrial, allowing them "two bites
of the apple" and defeating the purpose for the waiver rule. See McGrath, 190 Ill. App. 3d at
279.
No. 1-13-1863 ¶ 32 We conclude that the defendant waived his right to a mistrial by waiting until after the
jury returned its verdict to seek a ruling on his motion for mistrial. We further conclude that
the defendant waived his right to a new trial by failing to file a posttrial motion. Therefore,
the trial court erred when it ordered a new trial in this case. ¶ 33 We reverse the order for a new trial. This case is remanded to the circuit court with
directions to reinstate the verdict in favor of the plaintiff and against the defendant and enter
judgment thereon. ¶ 34 Reversed and remanded with directions.