No. 1-13-3969 Opinion filed June 12, 2015

FIFTH DIVISION

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

SCOTT ARIENT, ) Appeal from the Circuit Court ) of Cook County. Plaintiff-Appellant, ) ) v. ) No. 2011 L 006026 ) NAZEER SHAIK, DR. SHAK'S AND ) SCOTT'S INC. and SCOTT'S PET ) SHOP INC., ) The Honorable ) Margaret Ann Brennan, Defendants-Appellees. ) Judge, presiding.

JUSTICE GORDON delivered the judgment of the court, with opinion. Presiding Justice Palmer and Justice Reyes concurred in the judgment and opinion.

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 No. 1-13-3969

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. 1

¶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.

1 The November 21, 2013, order stated: "it is so ordered that: The jury returning a verdict as follows: (1) In favor of Plaintiff and against Defendants; and (2) In favor of Defendants and against Plaintiff; (3) No money award entered versus any Party." Since neither party raised an issue as to whether this order constituted entry of judgment on the verdict, we will treat this order as entering judgment on the verdict. 2 No. 1-13-3969

¶4 BACKGROUND

¶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

3 No. 1-13-3969

from asking defendant whether Dr. Ghouse, 2 defendant's brother-in-law, took

$500 in cash out of the register every night.

¶9 The question arose during the following testimony concerning the store's

daily deposits:

"PLAINTIFF'S COUNSEL: And so [plaintiff] would provide ***

you [with] a copy of the deposit slip of how much money was deposited

that day, together with the printout from the cash register so that you

could keep track of the sales, right? You knew what the shop was doing?

Right? You have to say yes or right.

DEFENDANT: Yes.

PLAINTIFF'S COUNSEL: And sometimes [plaintiff] would deliver

this information to your brother-in-law, and that's Dr. [Ghouse], Dr.

[Ghouse]?

DEFENDANT: Dr. [Ghouse].

PLAINTIFF'S COUNSEL: And sometimes [plaintiff] would deliver

this information to your brother-in-law; is that right?

DEFENDANT: Yes.

2 The transcript does not state a first name for Dr. Ghouse. In addition, although the transcript spells the last name as "Dr. Gaus," defendant in his appellate brief spells his brother-in-law's name as "Dr. Ghouse," so we use that spelling. 4 No. 1-13-3969

PLAINTIFF'S COUNSEL: Did your brother-in-law ever come to the

shop to collect any money?

DEFENDANT: He went to the shop on a daily basis?

PLAINTIFF'S COUNSEL: Dr. [Ghouse]?

DEFENDANT: Yes.

PLAINTIFF'S COUNSEL: And when he went to the shop on a daily

basis, did he remove or take cash from the register?

DEFENDANT: Are you implying he steal[s] cash?

PLAINTIFF'S COUNSEL: Not at all. I'm asking you, did Dr.

[Ghouse] on a daily basis come in and take cash, remove cash from the

cash register?

DEFENDANT: The cash was removed from the register by [plaintiff]

and deposited into the bank, and Dr. [Ghouse] used to come and see over

[sic] if everything is done appropriately, if the sales are correct, if that

matches the register. So he was not taking money on his own.

PLAINTIFF'S COUNSEL: Well, in fact, Dr. [Ghouse] would come

to the shop and he would take $500 in cash on a daily basis; is that

correct?"

¶ 10 Defense counsel then requested a sidebar and objected. At the sidebar,

plaintiff's counsel stated: 5 No. 1-13-3969

"PLAINTIFF'S COUNSEL: Let me make an offer of proof.

[Plaintiff] is going to — he's going to testify as to three things. He's

going to say that he did the deposit slips and he made the deposits. He's

going to testify that he had access to the bank account online. Couldn't

write checks, but he had access to the bank account online. He will

testify that [Ghouse] came on a daily basis, took only $500 in cash. The

rest of the cash, whatever was left, [plaintiff] would deposit, and then

when he went to the bank[,] the bank deposit did not reflect the $500

cash on a daily basis. This is what [plaintiff] will testify to. Now, if that's

his testimony, then I should be allowed to inquire as to whether or not Dr.

[Ghouse] took $500 a day in cash and ask him did [he] in fact [know]

that $500, was that deposited. Let [defendant] say it was. But I should

be able to inquire on that."

¶ 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:

"THE COURT: Just so that we're clear: Can you go into who made

the deposit? Yes, you can go into who made the deposit. Was there a

6 No. 1-13-3969

register receipt indicating the sales of the day? Yes. You can go into

that. You can go into whether Dr. [Ghouse] was present when the till

was closed out each night. *** You can't go into whether or not

specifically $500 was removed every night by Dr. [Ghouse].

***

PLAINTIFF'S COUNSEL: If I am not allowed to ask whether or not

the total receipts match the total deposit of either [defendant] or

[plaintiff], I think that's improper.

THE COURT: And you've made your record. My ruling stands."

¶ 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:

"PLAINTIFF'S COUNSEL: And did you have any specific

instructions about how to make the [daily] deposit?

PLAINTIFF: I was told to deposit everything except for $500 a day.

PLAINTIFF'S COUNSEL: That was [defendant]?

PLAINTIFF: [Defendant] instructed me to do that, yes." 7 No. 1-13-3969

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.

¶ 15 ANALYSIS

¶ 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.

¶ 17 I. Standard of Review.

¶ 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,

; Luss v. Village of Forest Park,

(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

8 No. 1-13-3969

analysis that a trial judge would perform. Zurek v. Franklin Park Officers

Electoral Board,

(citing Khan v. BDO Seidman,

LLP,

(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,

(citing People v. Cardamone,

(2009).

"The primary objective of statutory interpretation is to give effect to the intent

of the legislature" (Lacey v. Village of Palatine,

(2009);

Cardamone,

) and " 'the plain language of the statute is the

best indicator of the legislature's intent.' " Zurek,

(quoting Metzger v. DaRosa,

(2004)). " 'When the

statute's language is clear, it will be given effect without resort to other aids of

statutory construction.' " Zurek,

(quoting

Metzger,

).

¶ 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,

(citing Cardamone,

). "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,

(2003). In this endeavor, we consider both any stated purpose,

9 No. 1-13-3969

as well as what Illinois courts have previously determined. Zurek,

, ¶ 64 (citing Metzger,

).

¶ 21 II. Posttrial Motion in Civil Jury Trials

¶ 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.

¶ 23 A. Code of Civil Procedure

¶ 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:

10 No. 1-13-3969

"(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 2012).

¶ 26 The Code treats nonjury cases very differently. In re Marriage of

Jerome,

(1994); Malfeo v. Larson,

(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,

(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

stands in stark contrast to the "must" used in section 2-1202 (735 ILCS 5/2-

1202(c) (West 2012). The relevant portions of both sections are quoted below,

so that they are easy to compare:

"In all cases tried without a jury, any party may, within 30 days after

the entry of the judgment *** file a motion for rehearing, or a retrial, or

modification of the judgment or to vacate the judgment or for other

relief." (Emphasis added.) 735 ILCS 5/2-1203(a) (eff. Jan. 1, 2011).

11 No. 1-13-3969

"Post-trial motions must be filed [in jury cases] within 30 days after

the entry of judgment ***." (Emphasis added.) 735 ILCS 5/2-1202(c)

(West 2012).

¶ 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,

(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

12 No. 1-13-3969

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 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,

(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,

-82 (1967))); Robbins v. Professional Construction Co.,

(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).

13 No. 1-13-3969

¶ 30 B. Supreme Court Rule 366

¶ 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) "General"; (2) "Scope

and Procedure on Review in Jury Cases"; and (3) "Scope and Procedure on

Review in Nonjury Cases." Ill. S. Ct. R. 366(b) (eff. Feb. 1, 1994). Like the

Code, the very structure of the rule indicates that jury and nonjury cases are to

be treated differently.

¶ 32 Subsection (b) states in relevant part:

(2) Scope and Procedure on Review in Jury Cases.

* * *

(iii) Post-Trial Motion. A party may not urge as error on review of

the ruling on the party's post-trial motion any point, ground, or relief

not specified in the motion.

* * *

(3) Scope and Procedure on Review in Nonjury Cases.

* * *

(ii) Post Judgment Motions. Neither the filing of nor the failure to

file a post judgment motion limits the scope of review." Ill. S. Ct. R.

366(b)(2)(iii), (3)(ii) (eff. Feb. 1, 1994). 14 No. 1-13-3969

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).

¶ 33 C. Case Law

¶ 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,

("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,

, 348-

499 (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,

(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,

15 No. 1-13-3969

(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,

(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,3

(1983) (appeal dismissed where the

plaintiff in a jury case failed to file a posttrial motion);

¶ 35 In Allott Plumbing, the appellate court explained the policy reasons

behind the requirement for a posttrial motion in a jury case:

"The plaintiff's failure to file a post-trial motion has resulted in a

waiver of the issue it now seeks to raise on appeal. Before we can be

asked to assess the propriety of the jury's verdict, the trial judge, who is

most familiar with the evidence and the witnesses, must be given an

opportunity to review his ruling and decide if a new trial or a judgment

notwithstanding the verdict is appropriate. [Citation.] The plaintiff's

failure to file a post-trial motion has denied the trial judge the opportunity

to reassess his decision." Allott Plumbing,

("For

the foregoing reasons, this appeal is dismissed."); accord In re Parentage

of Kimble,

(1990) ("Before we can be asked to

3 In the caption of the case, the word "fiberglass" is spelled "fiberglas." 16 No. 1-13-3969

assess the correctness of the original rulings of the trial court, the trial

judge, who is most familiar with the events of the trial must be given an

opportunity to reassess his rulings.").

¶ 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,

(2010) (citing Palanti v. Dillon Enterprises, Ltd.,

(1999) (citing Belfield v. Coop,

(1956)));

Matthews v. Avalon Petroleum Co.,

(2007); In re Marriage

of Saheb,

(2007). Although the doctrine may be

applied in civil cases, it finds much greater application in criminal cases.

Wilbourn,

(citing Gillespie v. Chrysler Motors Corp.,

(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,

;

Matthews,

; In re Marriage of Saheb,

. This court has observed that the application of the plain error doctrine to

17 No. 1-13-3969

civil cases should be exceedingly rare. Wilbourn,

(citing

Palanti v. Dillon Enterprises, Ltd.,

(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 judicial process itself. E.g., Wilbourn,

. In the case at bar, 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 trial court found that the

18 No. 1-13-3969

question was more "prejudicial than probative." Ill. R. Evid. 403 (eff. Jan. 1,

2011) ("Although relevant, evidence may be excluded if its probative value is

substantially outweighed by the danger of unfair prejudice."). 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. Thus, even if we considered the

issue and found error, it was not the type of egregious error required to trigger

the application of the plain error doctrine in civil cases. E.g., Wilbourn,

.

¶ 40 CONCLUSION

¶ 41 For the foregoing reasons, the issue raised by plaintiff is forfeited for our

consideration on appeal.

¶ 42 Affirmed.

19