FILED July 30, 2015 Carla Bender NO. 4-14-0612 4th District Appellate Court, IL IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

CAROL KEISER-LONG, ) Appeal from Plaintiff-Appellant, ) Circuit Court of v. ) Champaign County KIRK OWENS, ) No. 10L19 Defendant-Appellee. ) ) Honorable ) Jeffrey B. Ford, ) Judge Presiding.

JUSTICE HOLDER WHITE delivered the judgment of the court, with opinion. Justices Knecht and Steigmann concurred in the judgment and opinion.

OPINION ¶1 In November 2013, plaintiff, Carol Keiser-Long, filed her third amended

complaint against defendant, Kirk Owens, alleging defendant, through his negligent and willful

and wanton conduct, caused her to suffer damages. In her complaint, plaintiff sought, in part,

damages for her "lost earning capacity and lost earning potential."

¶2 In March 2014, the cause proceeded to trial. At the close of the evidence,

defendant moved for a directed finding on the issue of damages for lost earning capacity and

potential. The next day, the trial court granted defendant's motion for a directed finding.

Thereafter, the matter was submitted to the jury, which returned a verdict in favor of plaintiff and

awarded damages. Later that month, plaintiff filed a motion to reconsider the court's directed

finding. In June 2014, the court entered a written order denying plaintiff's motion to reconsider. ¶3 Plaintiff appeals, arguing the trial court erred by granting defendant's motion for a

directed verdict where (1) Illinois law allows for the recovery of all damages which flow from a

negligent act, and (2) the court misapplied the law regarding her claim for lost earning capacity.

We reverse and remand for further proceedings.

¶4 I. BACKGROUND

¶5 In August 2008, plaintiff and defendant were involved in an automobile accident

in rural Tolono Township in Champaign County, Illinois. Defendant's vehicle collided with

plaintiff's when he disobeyed a stop sign and entered an intersection without yielding to

plaintiff's right of way. Plaintiff later discovered defendant was intoxicated when his vehicle

collided with hers and had pleaded guilty to driving under the influence of alcohol.

¶6 In November 2013, plaintiff filed her two-count third amended complaint. In

count I, plaintiff alleged defendant's conduct was negligent. In count II, she alleged his conduct

was willful and wanton. The complaint sought, in part, damages for plaintiff's "lost earning

capacity and lost earning potential."

¶7 In February 2014, prior to the commencement of the jury trial, defendant admitted

liability on count I (negligence). Accordingly, in March 2014, the matter proceeded to trial on

count II, as well as the issue of damages.

¶8 At trial, plaintiff testified she was self-employed and always had been. She is the

sole shareholder of two corporations, C-Bar Cattle Company, Inc. (C-Bar), and C-Arc

Enterprises, Inc. (C-Arc). C-Arc is a consulting business. C-Bar is a cattle-brokering business,

which buys and sells cattle for profit. All of plaintiff's cattle business runs through C-Bar and

any revenue received from the sale of cattle is deposited into C-Bar's bank accounts. Plaintiff

never received a formal salary or bonus from C-Bar or C-Arc; however, she was able to freely

-2- transfer money from their accounts. Additionally, plaintiff routinely provided substantial

shareholder loans to C-Bar. Since 2006, neither C-Bar nor C-Arc has had an employee other

than plaintiff. Both C-Bar and C-Arc are C corporations as opposed to subchapter-S

corporations.

¶9 Plaintiff testified the accident negatively affected her cattle business. She was

unable to make any decisions regarding the business because she was in severe pain. Further,

her cattle business required her to drive all over the Midwest, visiting feedlots and auctions. The

accident had caused her to experience anxiety when she was in a car to the point she could not

drive to feedlots and auctions as she had before. In the years following the accident, plaintiff did

not go to the feedlots as she had in the past because she had not purchased any cattle. Further,

plaintiff was unable to maintain her relationships with the feedlots she had used despite their

importance in running a profitable cattle operation. According to plaintiff, she missed the

opportunity to earn money in the cattle business following the accident.

¶ 10 Larry Joe O'Hern testified on behalf of plaintiff. O'Hern and plaintiff were

business partners between 2000 and 2008. Plaintiff would buy a 50% interest in his "commercial

cow-calf calves" and arrange to have them fed in Nebraska or Kansas. Contacts and

relationships are instrumental in getting cattle into the right feedlots to maximize earnings.

Additionally, it is important for those in the business to visit the feedlots to ensure the cattle are

being taken care of properly.

¶ 11 According to O'Hern, plaintiff owned between 3,000 and 5,000 head of cattle

each year. O'Hern testified, in 2008, he and plaintiff stopped doing business together. Plaintiff

did not purchase any cattle with him from 2008 to 2012. O'Hern testified the accident had a

-3- substantial impact on plaintiff's ability to participate in the cattle business but was unable to state

what effect the accident had on her personal earnings.

¶ 12 According to O'Hern, 2009 and 2010 were great years to be in the cattle business:

"we had some [$200 per] head profits." Using plaintiff's typical inventory of 3,000 or 4,000

head and a conservative profit estimate of $50 per head, O'Hern opined plaintiff lost the

opportunity to make approximately $200,000 per year in the years following the accident.

However, at his deposition, O'Hern did not have an opinion as to any specific amount of income

plaintiff lost as a result of the accident.

¶ 13 Plaintiff's husband, Ewell "Woody" Long, testified about her participation in the

cattle business following the accident. Before the accident occurred, plaintiff was on the phone

for "two or three hours [per day], three or four times a week." Additionally, she would visit the

feedlots seven or eight times per year. Since the accident, plaintiff stopped buying and selling

cattle as frequently as she had before. She had only visited a feedlot once. Further, she seemed

to have lost interest and motivation to participate in the business. According to Long, this

resulted from plaintiff's fear of driving, which was caused by the accident.

¶ 14 Roger Colmark testified he had been plaintiff's accountant for at least 10 years.

During that time, he prepared plaintiff's personal tax return, as well as the return for C-Bar and

C-Arc, which file jointly. Additionally, after plaintiff married Long, Colmark prepared the

couple's joint tax return.

¶ 15 Colmark testified respondent does not take a salary out of C-Bar because it would

deplete C-Bar's retained earnings. In the case of C-Bar, retained earnings are the profit from the

sale of cattle which has been left in the corporation instead of being paid out as salary to

plaintiff. Because plaintiff is the sole shareholder of C-Bar, its retained earnings belonged only

-4- to her. According to Colmark, plaintiff treats C-Bar's retained earnings as a 401(k), and he

would "assume after she retires she will take the—start to take the income out of this."

¶ 16 Colmark also testified as to the significance of C-Bar and C-Arc's corporate form.

According to Colmark, a C corporation "is normally called a regular corporation," and any

income is taxed at the corporate level. In a subchapter-S corporation, on the other hand, the

corporation's profit or loss flows through the owner's personal income tax return.

¶ 17 At the close of the evidence, defendant moved for a directed verdict as to the issue

of plaintiff's claim for lost earning capacity. Defendant asserted plaintiff had presented evidence

only of the possible losses sustained by C-Bar and C-Arc, and not plaintiff personally.

Defendant relied on the fact plaintiff never drew a salary from her corporations to support his

claim plaintiff had not shown she had personally suffered loss. Defendant also noted C-Bar and

C-Arc were not subchapter-S corporations, and therefore, any profit or loss did not flow through

plaintiff individually.

¶ 18 The next day, after giving plaintiff an opportunity to respond, the trial court

granted defendant's motion for a directed verdict. The case was thereafter submitted to the jury,

who returned a verdict in favor of plaintiff on count II and awarded damages on both counts.

¶ 19 In April 2014, plaintiff filed a motion to reconsider the trial court's finding with

regard to defendant's motion for a directed verdict. Plaintiff's motion did not request a new trial

on the issue of damages or attack the judgment entered on the jury's verdict. In June 2014, the

court denied plaintiff's motion.

¶ 20 This appeal followed.

¶ 21 II. ANALYSIS

-5- ¶ 22 On appeal, plaintiff argues the trial court erred by granting defendant's motion for

a directed verdict where (1) Illinois law allows for the recovery of all damages which flow from

a negligent act, and (2) the court misapplied the law regarding her claim for lost earning

capacity. Before addressing the merits, however, we must first address our jurisdiction to

consider plaintiff's appeal.

¶ 23 A. Jurisdiction

¶ 24 Defendant contends this court lacks jurisdiction because plaintiff's motion to

reconsider was an "improper" posttrial motion due to its failure to request a new trial or attack

the judgment on the verdict. Consequently, defendant argues, the posttrial motion did not toll the

time for filing a notice of appeal and, therefore, plaintiff's appeal was untimely.

¶ 25 Whether a court has jurisdiction is a question of law we review de novo. Yunker

v. Farmers Automobile Management Corp.,

,

(2010). In Keen v. Davis,

,

(1967), the supreme court

held no posttrial motion is necessary when the trial court directs a verdict. This is so because

"[w]hen 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." Larson v. Harris,

,

(1966).

¶ 26 In this case, the trial court directed a verdict in defendant's favor as to the issue of

plaintiff's lost earning potential and capacity. Under Keen, therefore, plaintiff was not required

to file a "proper" posttrial motion—i.e., one requesting a new trial—to preserve her issue for

appeal, and her motion to reconsider's failure to request a new trial is not fatal. In any event, we

-6- find plaintiff's motion to reconsider necessarily requests a new trial given the fact a favorable

ruling on the motion would have required the trial court to put the issue of plaintiff's lost earning

capacity back before the jury.

¶ 27 Here, the trial court entered judgment on March 14, 2014. On April 14, 2014,

plaintiff timely filed her motion to reconsider the trial court's directed finding, which tolled the

time for appeal until 30 days following the order disposing of her motion to reconsider. Ill. S.

Ct. R. 303(a)(1) (eff. May 30, 2008). On June 4, 2014, the trial court entered its written order

denying plaintiff's motion to reconsider. On July 2, 2014, 28 days later, plaintiff filed her notice

of appeal. Accordingly, we have jurisdiction over plaintiff's appeal.

¶ 28 B. The Trial Court Improperly Granted Defendant's Motion for a Directed Verdict

¶ 29 Plaintiff argues the trial court erred by granting defendant's motion for a directed

verdict, removing the issue of her lost earning capacity from the province of the jury.

Specifically, plaintiff asserts Illinois law allows for the recovery of all damages which flow from

a negligent act. Further, plaintiff contends, the court misapplied the law when it distinguished

plaintiff's corporations "from those in cases where lost shareholder corporate earnings were

allowed as damages."

¶ 30 1. Standard of Review

¶ 31 A motion for a directed verdict should be granted "only in those cases in which all

of the evidence, when viewed in its aspect most favorable to the [nonmoving party], so

overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand."

Pedrick v. Peoria & Eastern R.R. Co.,

,

(1967). The

plaintiff must present some evidence on every essential element of the cause of action;

otherwise, the defendant is entitled to a judgment in his favor as a matter of law. Sullivan v.

-7- Edward Hospital,

,

(2004). We review de novo the

ruling on a motion for a directed verdict, meaning we perform the same analysis as did the trial

court. Harris v. Thompson,

,

.

¶ 32 2. The Sezonov Case

¶ 33 The parties both cite to Sezonov v. Wagner,

,

(1995), to support their contentions on appeal. In Sezonov, the plaintiffs, a husband and wife,

were the sole shareholders and officers of their corporation, Sparrow, Inc. (Sparrow), which

owned and operated one pet store and was about to open another one when the husband was

involved in a car accident with the defendant.

,

. The plaintiffs filed

a complaint, seeking, in part, damages for the loss of sales and earnings caused by a delay in

opening the second store, which resulted from the husband's inability to work.

,

. The plaintiffs presented evidence the second store lost net profits of $21,000

because of the delay in opening.

,

. The defendant filed a motion for

summary judgment, asserting the plaintiffs were not entitled to relief because the pet store was

owned and operated by Sparrow as opposed to the plaintiffs.

,

. The

trial court granted the defendant's motion and certified the following question for appeal pursuant

to Illinois Supreme Court Rule 308(a) (eff. Feb. 1, 1994): "whether plaintiffs [were] barred from

presenting evidence for a claim of the lost profits or expenses incurred because of a 43-day delay

in opening a new pet store, when the delay was caused by [the husband's] inability to work and

the pet store was owned by an Illinois corporation of which [the plaintiffs were] the sole

shareholders and officers." Sezonov,

,

.

¶ 34 On appeal, the Second District answered the certified question in the negative,

defining the scope of the plaintiffs' recovery as follows:

-8- "Plaintiffs are not seeking to recover for all losses Sparrow

incurred because of [the husband's] incapacity, only those which

are the direct result of [the husband's] inability to work. If

plaintiffs can prove that the [second] store was unable to open

timely because [the husband] was unable to supervise the

installation of the fish department and to hire temporary help, then

they can recover damages from the late opening. However,

plaintiffs can recover only that money which they personally would

have received from the corporation, i.e., the earnings or wages

lost." (Emphasis added.)

,

.

In other words, the Sezonov court held a corporation's lost profits may be relevant to its

shareholder's claim for lost earnings but only to the extent the owner would have personally

received income from the corporation.

¶ 35 Here, defendant places significance in the fact plaintiff never received a salary or

bonus from C-Bar, citing to the Sezonov court's limitation on damages to the money plaintiff

would have received from the corporation, i.e., the earnings or wages lost. However, Sezonov

involved a claim for lost earnings and sales as opposed to, as we have here, a claim for lost

earning capacity and is therefore inapposite. See Buckler v. Sinclair Refining Co.,

,

(1966) (Damages for lost earning capacity are distinct from those

for lost earnings or wages.). Therefore, we find the fact plaintiff never received a salary or wage

from C-Bar did not bar the jury from considering her claim for lost earning capacity.

¶ 36 3. Lost Earning Capacity

-9- ¶ 37 In Illinois, "[a] plaintiff is entitled to recover all damages which naturally flow

from the commission of the tort." Kritzen v. Flender Corp.,

,

(1992). A plaintiff's impaired earning capacity is a proper element of damages

to be considered by the trier of fact. Robinson v. Greeley & Hansen,

,

(1983). "Recovery, however, must be limited to such loss as is reasonably

certain to occur."

Generally, these damages are measured by the difference between the

amount the plaintiff was capable of earning before his or her injury and that which he or she is

capable of earning after the injury.

"Damages should be estimated on the injured person's

ability to earn money, rather than what he actually earned before the injury, and the difference in

the actual earnings of plaintiff before and after the injury does not constitute the measure."

This is not to say the plaintiff's actual pre- and post-injury earnings are irrelevant to the measure

of damages but, rather, they "may be helpful to a jury in its determination of the impairment of

ability to earn."

¶ 38 The determination of lost earning capacity becomes more complicated where, as

here, the plaintiff is self-employed.

In Robinson, the appellate court explained the loss of

earning capacity in this context as follows:

"Generally, earnings which are derived from the combination of

capital and labor should not be considered in determining the

diminution of earning capacity. [Citation.] However, it has also

been held that a jury may properly consider the profits which have

been derived from [the] plaintiff's management of or activity in a

business, as distinguished from profits derived from invested

capital."

,

.

- 10 - The Robinson court determined the trial court properly excluded evidence of the plaintiff's

wrecking company's income where "the predominating factor of plaintiff's wrecking company is

the investment of significant capital, as well as the use of the labor of others in performing

critical functions."

,

.

¶ 39 Comment c to section 924 of the Restatement (Second) of Torts lends support to

the Robinson court's statement of the law regarding the loss of earning capacity to a self-

employed plaintiff, stating as follows:

"When the injured person was not receiving a salary, but

owned and was operating a business that was deprived of his

services by the injury, his damages are the value of his services in

the business during the period. If his services, rather than the

capital invested or the services of others, were the predominant

factor in producing the profits, evidence of the diminution of

profits from the business will be received as bearing on his loss of

earning capacity." Restatement (Second) of Torts § 924 cmt. c

(1979).

¶ 40 In this case, plaintiff presented evidence C-Bar's profits were derived solely from

her management of and activity in the business. Plaintiff presented evidence she was the sole

employee of C-Bar. To maximize C-Bar's earnings, plaintiff had to be personally involved in the

cattle-buying process by visiting cattle auctions to determine which cattle she should buy.

Further, plaintiff had to form and maintain relationships with feedlots. Once she purchased

cattle, she had to visit the feedlots to ensure they were being taken care of properly.

- 11 - ¶ 41 Plaintiff also presented evidence her business would not be as profitable if she

could not perform all these duties. To perform these duties, plaintiff was required to drive to

various locations all over the Midwest. As a result of the accident, however, plaintiff

experienced great anxiety while driving, to the extent she would not drive at night or in new

areas.

¶ 42 Plaintiff also presented evidence she missed the opportunity to earn money in the

cattle business following the accident. O'Hern testified plaintiff lost the opportunity to earn

profits in the amount of $200,000 per year following the accident based on plaintiff's previous

annual inventory of 3,000 to 5,000 head of cattle and a conservative profit estimate of $50 per

head.

¶ 43 Finally, plaintiff presented evidence C-Bar's profit from the sale of cattle was

placed in the corporation's retained earnings. She treats C-Bar's retained earnings as her

retirement plan. No one had access to the retained earnings other than plaintiff, as she was the

sole shareholder of C-Bar. Additionally, plaintiff freely transferred money out of the corporate

accounts and provided substantial shareholder loans to the corporation on several occasions.

¶ 44 Given the evidence C-Bar's profits were derived solely from plaintiff's

management and activity in the business, we conclude the diminution in C-Bar's profits was

relevant to the jury's determination of plaintiff's lost earning capacity. The fact plaintiff failed to

present evidence she personally lost income in the form of a salary or bonus from her cattle-

feeding operation is of no consequence. See Robinson,

,

; Restatement (Second) of Torts § 924 cmt. c (1979). To the extent Sezonov holds

otherwise, we decline to follow the holding of that case. See O'Casek v. Children's Home & Aid

Society of Illinois,

,

(2008) (appellate court is not

- 12 - bound by the decisions of equal or inferior courts). Rather, it is apparent plaintiff is akin to C-

Bar's alter ego. Further, based on the evidence presented, a jury could have reasonably returned

a verdict in favor of plaintiff for her lost earning capacity.

¶ 45 Defendant contends the trial court's decision must be affirmed where plaintiff

failed to offer evidence she personally suffered a loss of earning potential. In this case,

defendant argues, plaintiff showed only C-Bar suffered a loss as a result of her inability to work.

He notes C-Bar and C-Arc are C corporations, as opposed to subchapter-S corporations, meaning

the profits and losses do not flow through the individual shareholder, plaintiff. Under the

circumstances presented in this case, we find little significance in the fact C-Bar and C-Arc were

incorporated as C corporations as opposed to subchapter-S corporations. The only significant

difference between the two corporate forms is how each corporation's income is taxed—the

income derived by a C corporation is taxed at the corporate level, and any distribution of that

income to shareholders is taxed to the shareholder individually, whereas in a subchapter-S

corporation, the corporation's income is taxed to the shareholder individually. C-Bar's corporate

form does not change the fact plaintiff was so involved in C-Bar's operation she was akin to its

alter ego and any loss to C-Bar was, essentially, a loss to plaintiff.

¶ 46 Moreover, the parties agree there is no potential for a double recovery because C-

Bar cannot file suit for the injury to its sole shareholder. See Castle v. Williams,

,

(2003) (finding the "common-law right of a master to recover for

loss of services due to a servant's injury by a negligent third party" was no longer a viable cause

of action in Illinois). Given the fact C-Bar cannot recover for loss of services or profits due to

defendant's negligence, if we were to bar plaintiff from recovering her lost earning capacity,

defendant would receive a windfall, as no person or entity would be able to recover for the

- 13 - quantifiable damages incurred that were the direct result of defendant's negligence. Such a result

would be contrary to the long-standing public policy in favor of compensating tort victims for all

damages which naturally flow from the commission of the tort. See Kritzen,

,

.

¶ 47 Accordingly, we reject defendant's argument. We therefore reverse the trial

court's decision to direct a verdict and remand for a new trial solely on the issue of plaintiff's lost

earning capacity.

¶ 48 In conclusion, we hold evidence of the lost profits of a corporate entity are

relevant to the determination of an individual's lost earning capacity regardless of whether the (1)

corporation is a C corporation or subchapter-S corporation, and (2) plaintiff receives a salary or

wages from the corporation, when, as here, (1) the corporation is closely held by the individual,

(2) the individual's intellectual and physical labor is the predominant factor in earning its profits,

and (3) no risk of double recovery exists.

¶ 49 III. CONCLUSION

¶ 50 For the reasons stated, we reverse the trial court's judgment and remand for

further proceedings.

¶ 51 Reversed and remanded.

- 14 -