By: Kimberly Glasford
In Crim v. Dietrich, 2020 IL 124318, the Illinois Supreme Court held that when the trial court enters a partial directed verdict, a litigant must file a post-trial motion to preserve any challenge to the jury’s subsequent verdict on a remaining claim. Equally interesting, however, are the justices’ varying applications of Illinois Supreme Court Rule 308 (eff. July 1, 2017), and different interpretations of an appellate court mandate.
The Crims filed a medical malpractice action against Gina Dietrich, D.O., alleging that she failed to obtain informed consent for a natural birth and was negligent during delivery. At trial, the court granted Dietrich’s motion for a partial directed verdict as to the informed consent claim. The jury then found in her favor on the remaining negligent delivery claim but the Crims did not file a post-trial motion challenging that finding.
On appeal in Crim I, the appellate court found the directed verdict was improper, reversed the judgment and remanded for a new trial. According to the mandate, the appellate court held that “the order on appeal from the circuit court be REVERSED and the cause be remanded . . . for such other proceedings as required by order of this court.” On remand, the parties disputed whether retrial was limited to the informed consent claim or whether the Crims could present evidence regarding the negligent delivery claim.
According to Dietrich, retrial was limited to the informed consent claim because the Crims did not file a post-trial motion attacking the jury’s verdict on the negligent delivery claim and the reviewing court did not address it. The Crims argued, however, that the mandate in Crim I was general, requiring a new trial on all issues.
The trial court sided with the Crims but certified, pursuant to Rule 308, the question of “[w]hether the ruling of the appellate court, [in Crim I], reversing the judgment and remanding this case for a new trial requires a trial de novo on all claims.” The appellate court found in Crim II that the new trial should encompass all claims. The supreme court disagreed.
The majority opinion, authored by Justice Karmeier and joined by Justices Garman, Theis and Neville, noted that “[a] certified question under Rule 308 permits the discretionary appeal of an otherwise unappealable interlocutory order of the circuit court where the court ‘finds that the order involves a question of law as to which there is a substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation.” Crim, 2020 IL 124318, ¶ 19 (quoting Ill. S. Ct. R. 308(a) (July 1, 2017)). The majority found that the certified question met that standard because it involved a pure question of law and did not invite an advisory opinion. Additionally, answering the question would materially advance the termination of the litigation.
The majority acknowledged it would be improper for a certified question to seek a new interpretation of Crim I. Indeed, a certified question could not revest the appellate court with jurisdiction to revisit a previously decided case. The certified question at issue, however, did not reflect an improper purpose. Instead, it merely asked whether Crim I required an entirely new trial, which “is no different than a certified question involving statutory construction.” Crim, 2020 IL 124318, ¶ 21. In support, the majority cited a case involving the impact of a United States Supreme Court decision on an Illinois case, rather than the impact of an Illinois decision on the same Illinois case. Id. (citing Hampton v. Metropolitan Water Reclamation District of Greater Chicago, 2016 IL 119861, ¶ 6).
As to the merits, the majority concluded that the Crim I mandate did not require a new trial on all claims because the Crims failed to file a post-trial motion under 735 ILCS 5/2-1202. Furthermore, the “mandate could not remand the matter for a new trial on an issue never raised and not considered.” Crim, 2020 IL 124318, ¶ 40. Finally, the majority recognized 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.” (Internal quotation marks omitted.) Id. ¶ 40 (quoting People ex rel. Borelli v. Sain, 16 Ill. 2d 321, 326 (1959)). But it concluded that the appellate court ruled on the merits by finding that the trial court improperly entered a directed verdict, notwithstanding that the appellate court had not made a determination as to liability.
Chief Justice Burke specially concurred, finding that a new trial on all claims was not necessary because the opening brief in Crim I expressly abandoned the Crims’ objection to the jury’s verdict. Additionally, the appellate court did not review the jury’s verdict.
Chief Justice Burke recognized that, “[i]f a judgment in an ordinary suit at law in which the parties are entitled to a jury trial is reversed for errors intervening prior to the entry of the judgment and the cause is remanded generally, the parties are entitled to a trial de novo.” (Internal quotation marks omitted.) Id. ¶ 53 (quoting Roggenbuck v. Breuhaus, 330 Ill. 294, 300 (1928)). But she disagreed that the erroneous partial directed verdict in Crim I constituted an error “prior to the entry of judgment” within the meaning of that rule because “a directed verdict is itself a judgment.” Crim, 2020 IL 124318, ¶ 55 (Burke, C.J., specially concurring). When “Crim I stated that it was reversing the ‘judgment’ of the trial court, it was necessarily referring to the directed verdict since the only matter the appellate court addressed was the informed consent claim.” Id. ¶ 56.
Justice Kilbride dissented, stating that the certified question did not satisfy Rule 308 because it was case-specific. Crim, 2020 IL 124318, ¶ 67 (Kilbride J., dissenting). Additionally, Justice Kilbride believed that the parties asked the certified question to clarify what the mandate in Crim I meant, which the majority acknowledged would be improper. Specifically, the Crims’ attorney stated on remand, “I think that there’s going to need to be a 308 appeal, an interlocutory appeal so that the Appellate Court can tell us what it wanted when it issued its order.” Furthermore, there was no substantial ground for disagreement: “no court has ever addressed what the mandate in Crim I means, nor will any court ever address that question again.” Id. ¶ 76.
Justice Kilbride also disagreed that construing a mandate was akin to statutory construction, noting that while statutes have general applicability, mandates by nature are case-specific. He added that by finding that Crim I could not have required a new trial on all claims due to the Crims’ failure to file a section 2-1202 motion, the majority confused a party’s forfeiture with the appellate court’s power to grant relief.
The supreme court’s decision indicates that in interpreting a mandate, the court will adopt a reading that renders the mandate legally correct. The decision also suggests that justices will differ as to whether a procedural issue presents a purely legal issue. With that in mind, litigants should ensure that mandates and certified questions are crystal clear while the court has jurisdiction to clarify any ambiguity.