Illinois Official Reports
Appellate Court
Benford v. Everett Commons, LLC, 2014 IL App (1st) 130314
Appellate Court PAMELA BENFORD, Plaintiff-Appellant, v. EVERETT
Caption COMMONS, LLC, Defendant-Appellee.
District & No. First District, Fifth Division
Docket No. 1-13-0314
Filed May 2, 2014
Held In an action alleging that plaintiff’s landlord failed to maintain
(Note: This syllabus plaintiff’s apartment in compliance with the Chicago Residential
constitutes no part of the Landlord and Tenant Ordinance and the implied warranty of
opinion of the court but habitability, the trial court properly barred plaintiff from using the
has been prepared by the receipts for the items she purchased to replace her damaged property
Reporter of Decisions to establish the fair market value of the items she lost, the appellate
for the convenience of court rejected her contention that the verdict for plaintiff with an
the reader.)
award of zero damages was against the manifest weight of the
evidence, and plaintiff’s motion to assess defendant with the costs of
supplementing the record with certain transcripts was denied, since
those transcripts were necessary to support issues plaintiff raised.
Decision Under Appeal from the Circuit Court of Cook County, No. 11-M1-17472; the
Review Hon. Sidney A. Jones III, Judge, presiding.
Judgment Affirmed and remanded.
Counsel on John O. Noland, Jr., of Chicago, for appellant.
Appeal
Scarpelli & Brady, LLC, of Park Ridge (Nicholas J. Scarpelli, of
counsel), for appellee.
Panel JUSTICE PALMER delivered the judgment of the court, with
opinion.
Presiding Justice Gordon and Justice McBride concurred in the
judgment and opinion.
OPINION
¶1 Plaintiff Pamela Benford filed an action against her landlord, defendant Everett Commons,
LLC, seeking damages for defendant’s failure to maintain her rental apartment in compliance
with the Chicago Residential Landlord and Tenant Ordinance (RLTO) (Chicago Municipal
Code § 5-12-150 (amended Nov. 6, 1991)) and the implied warranty of habitability. The court
granted defendant’s motion for a directed verdict on property damage. A jury entered a verdict
“for the plaintiff and against the defendant,” found that plaintiff suffered “$0” damages as a
result of the occurrence and assessed her recoverable damages as “$0.” The trial court entered
judgment on the jury verdict “in favor of defendant” and denied plaintiff’s motion to
reconsider its grant of a directed verdict. Plaintiff appeals the court’s order denying her motion
to reconsider, its grant of a directed verdict to defendant and the jury verdict. She argues that
(1) the court erred in barring jury consideration of her lay testimony regarding her property
damage, (2) the jury’s verdict was against the manifest weight of the evidence and (3) the
jury’s verdict was legally inconsistent. We affirm and remand for correction of the court order
entering judgment in favor of defendant. We deny plaintiff’s motion taken with the case.
¶2 BACKGROUND
¶3 In May 2011, plaintiff executed a written lease agreement with defendant for a rental
apartment at 5525 South Everett Street in Chicago. Plaintiff had lived in the apartment for five
or six years and the lease was an extension of her previous lease. The lease term ran from June
1, 2011, to May 31, 2012. Rent was set at $800 per month.
¶4 In November 2011, plaintiff filed a complaint against defendant seeking damages for
defendant’s alleged failure to maintain the apartment in compliance with the Chicago
Municipal Code and the RLTO. She asserted that, on May 14, 2011, rust-colored water began
pouring into her apartment through her bedroom ceiling and walls, soaking and causing rust
stains on “the vast majority” of her clothing as well as other items. Plaintiff believed that the
rusty water came from a radiator pipe that defendant had disconnected and failed to reconnect
in the apartment above hers. Plaintiff claimed that she immediately informed defendant in
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writing of the water problem and requested immediate repair. She stated that, “to date,”
defendant had not repaired plaintiff’s walls and ceiling. Plaintiff claimed that mold began to
accumulate on her walls and ceilings shortly after the initial May 2011 occurrence and it
exacerbated her existing bronchitis. She stated that she had been forced to discard much of her
clothing as the items had been destroyed by indelible rust stains. Plaintiff also claimed that,
despite her numerous requests, defendant failed to remediate the “hazardous mold” or the
source of the water problem.
¶5 In count I, plaintiff charged that defendant violated the RLTO by failing to maintain her
apartment in material compliance with the Chicago Municipal Code and causing the value of
her tenancy to be diminished. She requested an injunction ordering defendant to immediately
repair the premises, damages under RLTO section 5-12-110(e) for the replacement cost of her
destroyed items, setoff against any unpaid rent, and an award for attorney fees and court costs
under the RLTO. In count II, she charged defendant with breach of the implied warranty of
habitability by failing to maintain her apartment in material compliance with the Chicago
Municipal Code. She requested damages for the replacement cost of her destroyed clothing,
setoff against unpaid rent and costs under the Code of Civil Procedure (the Code) (735 ILCS
5/1-101 et seq. (West 2010)).
¶6 Defendant answered and filed two affirmative defenses: (1) plaintiff was barred from
pursuing her claims because her repeated and continuous failure to provide access to her
apartment violated the requirements of the RLTO; and (2) she failed to mitigate her damages.
¶7 Following discovery, the case went to mandatory arbitration. The arbitrator found for
plaintiff and awarded her $26,454 in damages on July 11, 2012. Defendant rejected the award
and the case continued in the trial court.
¶8 In September 2012, plaintiff filed the two-count amended complaint underlying this
appeal, asserting the same allegations and claims as in the original complaint. Defendant
amended its affirmative defenses, adding a third affirmative defense asserting that plaintiff
failed to pay rent for the apartment and, therefore, any judgment for plaintiff should be offset
by the amount of past-due rent. The case was set for jury trial.
¶9 The court held a hearing on the parties’ motions in limine and proposed jury instructions.
The court denied defendant’s motion in limine to bar plaintiff from testifying regarding the fair
market value of her destroyed personal property. It granted defendant’s motion in limine to bar
plaintiff from testifying regarding the purchase price of items she purchased after the leak,
allegedly to replace her property destroyed by the leak. It also denied defendant’s motion to bar
plaintiff from testifying that she saw mold in her apartment, holding that plaintiff could not
testify regarding her medical diagnosis but could testify regarding the presence of mold, her
respiratory issues and that she went to the doctor.
¶ 10 The jury trial commenced on October 19, 2012. The record does not contain a report of
proceedings of the multiday trial. Assorted witnesses testified during trial but the record
contains only transcripts of the direct and cross-examination of plaintiff. Looking to plaintiff’s
testimony, she testified that, after the leak, she noticed mold started forming on her walls. By
the time she moved out of the apartment some nine months later, the mold was on the crown
molding in the living room and dining room and in the closet next to the bedroom. Plaintiff
testified that she contacted defendant numerous times regarding the leak and mold but
defendant never remedied the problems. She estimated that she was unable to use 80% of her
apartment as a result of the mold. Plaintiff presented a slide show of photographs “of the
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damage in the apartment” to the jury. She also showed photographs of clothing she asserted
was destroyed by the leak, but had no photos showing the clothing items in their damaged
condition.
¶ 11 Plaintiff testified that the water leaked onto and destroyed “everything” in her bedroom
closet, her chest of drawers and her hall closet. She stated that clothing, shoes, electronics,
boxes of books, her mother’s fur coat and “stuff you keep in closets” were destroyed by the
rust-colored water and she threw most of the items away because the rust stains could not be
cleaned. Plaintiff testified that, except for her mother’s fur coat, she had purchased the items
over the six years she lived in the apartment.
¶ 12 Plaintiff tendered receipts for the purchase price of assorted designer clothing items. She
testified that other clothing by the same designer was also destroyed but she did not know what
she paid for those items. She did not know the value of her mother’s fur coat. Plaintiff tendered
an Excel spreadsheet that she had prepared in May 2011 when her property was destroyed. She
explained that the spreadsheet showed items destroyed by the leak that she threw away because
they were “ruined” by rust stains and could not be cleaned. The spreadsheet lists 56 items and
shows the price plaintiff allegedly paid for the items. She submitted no receipts for any of the
items and the list did not state when the items were purchased. Plaintiff testified regarding the
purchase price of some of the items on the list and when she purchased them.
¶ 13 Asked regarding other damages she suffered as a result of the leak, plaintiff testified that
she began to develop respiratory problems. She noticed the breathing difficulties in June 2011,
had not experienced the symptoms prior to the mold and described the severity of her
symptoms as “an eight” on a scale of 1 to 10. Plaintiff testified that she went to see a physician
for the symptoms and was prescribed medication, incurring expenses for doctor visits and
medication. She submitted receipts for those expenses.
¶ 14 On cross-examination, plaintiff testified that she did not know the fair market value of any
of her destroyed items at the time of the incident/leak. Questioned extensively regarding the
fair market value of the destroyed items at the time of the leak, she testified that she did not
know how to determine fair market value, had no receipts for the items on the spreadsheet and
had no evidence of fair market value of her items because she did not know how to produce or
deduce the fair market value.
¶ 15 Plaintiff testified that, within one month of the leak, defendant had offered to move her into
two other units in the building but that she declined the offer because the proffered apartments
were not to her satisfaction. She also testified that she stopped paying her rent in June 2011,
vacated the apartment in February 2012 and did not notify defendant that she had moved. She
stated that, when she vacated the apartment, she left behind damaged items that she could no
longer use due to the water damage.
¶ 16 At the close of plaintiff’s case, defendant moved for a directed verdict on the basis that
plaintiff failed to prove any damages. It argued plaintiff failed to prove the presence of mold or
injuries resulting from that mold and requested that the court strike plaintiff’s claims regarding
mold. It also argued that plaintiff failed to prove property damage, as shown by her trial
testimony that she did not know the fair market value immediately before the leaks of the items
she claimed were damaged by the leaks.1 It requested that the court bar recovery for (1)
1
When personal property is destroyed or rendered useless, the ordinary measure of damages for the
property is the fair market value at the time of the loss, at the time immediately prior to its destruction.
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$38,040 in property damage for which plaintiff’s only evidence was her testimony and (2)
$8,011.97 in property damage for which plaintiff’s evidence consisted of receipts for
replacement purchases made 10 months after the alleged leaks and after plaintiff had moved to
a new address. Defendant argued that, as a result of plaintiff’s failure to prove any damages or
provide any evidence as to fair market value, the court should grant a directed verdict in favor
of defendant.
¶ 17 Following argument on the motion, the court orally denied defendant’s motion for a
directed verdict on personal injury damages, finding that plaintiff could testify regarding her
symptoms and the mold she saw in her home. The court then granted defendant’s motion for a
directed verdict on property damages. It stated that, after two days of testimony, although
plaintiff had testified generally concerning the purchase price of most of the items and
specifically on some others, she had “declined to make any kind of attempt at what fair market
value might be.” Noting that it was plaintiff’s burden to prove damages, the court stated:
“[Plaintiff is] articulate and intelligent, but she didn’t even make an attempt to opine,
‘Well, I paid $200 for it. It was two months old, I think it is worth $200.’ Now, that’s
very subjective testimony, but even probate law tells us that an individual is competent
to at least make a proffer of what the value of their own property is.
***
I can’t allow the jury to speculate on matters that might have affected the fair
market value *** those matters could have been gone into and they weren’t, and the
jury would have to speculate on the value of every single item remaining unchanged
*** from its original date of purchase.”
¶ 18 Plaintiff’s counsel suggested that he be allowed time to brief the issue and asked the court
to reserve ruling on the motion for a directed verdict given that counsel had just received it that
morning. The court denied the request and again stated it was granting defendant’s motion for
a directed verdict with regard to property damage, stating that “all the damage testimony
regarding clothing and furniture” was “out.”
¶ 19 On October 22, 2012, the jury came to its verdict. All 12 jurors executed “VERDICT
FORM B,” which provides as follows:
“We, the jury, find for the plaintiff and against the defendant, and further find the
following:
First: Without taking into consideration the question of reduction of damages due
to any affirmative defense, we find that the total amount of damages suffered by the
plaintiff as a proximate result of the occurrence in question is $0, itemized as follows:
The reasonable expense of necessary medical care, treatment and services
received: $0
Second: Considering the first and third affirmative defenses, we find that the
reduction attributable solely to the plaintiff’s conduct is $5,850.
Third: After reducing the total damages sustained by the plaintiff by the reduction
attributable solely to the plaintiff’s conduct, we assess the plaintiff’s recoverable
damages in the sum of $0.”
Harris v. Peters, 274 Ill. App. 3d 206, 207 (1995); Jankoski v. Preiser Animal Hospital, Ltd., 157 Ill.
App. 3d 818, 820 (1987).
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¶ 20 The court entered judgment on the jury verdict on the same day, October 22, 2012. It
entered the following order:
“The jury having returned a unanimous verdict in favor of defendant and against
plaintiff Benford.
IT IS HEREBY ORDERED:
1) Judgment is hereby entered on the verdict in favor of defendant and against
plaintiff.
2) Defendant’s costs to be reimbursed by plaintiff.”
¶ 21 On November 20, 2012, plaintiff filed a motion to reconsider “the Court’s October 22,
2012, trial ruling precluding the jury from considering any evidence concerning the damage to
[plaintiff’s] destroyed personal property based on the Court’s conclusion that [plaintiff] did not
present sufficient evidence of the fair market value of those items.” She asserted the court
should reconsider its ruling for the following four reasons. First, the court erred in denying her
counsel’s request for an opportunity to brief defendant’s motion for directed verdict. Second,
she was fully competent to testify as to the value of her ruined property because, where
property is of a usual and ordinary nature, such as household goods, the value is a matter of
common knowledge and anyone, including a housewife, is competent to testify regarding that
value. Third, “the market value of [her] destroyed items is equal to the items’ retail price for
which [plaintiff] testified to paying, where, as here, there is no contrary evidence
demonstrating otherwise.” Lastly, with regard to her ruined custom-made clothing, “the law
specifically allows the jury to consider evidence concerning the purchase price and age” of
unique items. Plaintiff requested that the court vacate its October 22, 2012, ruling and order a
new trial on damages only.
¶ 22 The court denied the motion to reconsider on December 20, 2013. Plaintiff filed a timely
notice of appeal on January 18, 2013. She subsequently filed an amended notice of appeal by
leave of court on August 15, 2013.
¶ 23 ANALYSIS
¶ 24 Plaintiff argues that the court erred in denying her motion to reconsider because (1) the
court erred in barring jury consideration of her lay testimony regarding her property damage,
(2) the jury’s verdict was against the manifest weight of the evidence and (3) the jury’s verdict
was legally inconsistent.
¶ 25 A. Barring of Plaintiff’s Testimony Regarding Property Damage
¶ 26 Plaintiff first argues that we should reverse the trial court’s order denying her motion to
reconsider because the court erred in granting defendant’s motion for a directed verdict on
property damage on the basis of plaintiff’s failure to prove the fair market value of her clothing
and damaged personal items. Plaintiff sought personal property damages for her used clothing,
furniture and electronics allegedly destroyed by the water leak. On defendant’s motion in
limine, the court barred plaintiff from testifying regarding and presenting receipts for the
purchase price of items she purchased after the leak, allegedly to replace her property
destroyed by the leak. It denied defendant’s motion in limine to bar plaintiff from testifying
regarding the fair market value of her destroyed personal property. At the close of plaintiff’s
case, having heard plaintiff’s testimony, the court granted defendant’s motion for a directed
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verdict on property damages, finding plaintiff failed to present evidence of the fair market
value of her clothing and property at the time of the loss. It denied plaintiff’s motion to
reconsider these findings.
¶ 27 Plaintiff asserts that her testimony and evidence were sufficient to prove the value of her
clothing and damaged personal property and the court, therefore, erred in (1) barring her trial
testimony and purchase receipts as to the value of her personal property and (2) directing the
verdict regarding property damage. She argues variously that the value of common household
goods is common knowledge to which anyone can testify, the market value of her damaged
items is the same as the retail price she paid and no contrary evidence shows otherwise, and her
lay opinion testimony is adequate to show the value of her clothing and personal items.
¶ 28 We review de novo the trial court’s grant of a motion for directed verdict. Buckholtz v.
MacNeal Hospital, 337 Ill. App. 3d 163, 167 (2003). If a plaintiff fails to produce a required
element of proof, i.e., there is a total failure or lack of evidence to prove a necessary element of
the plaintiff’s case, then entry of a directed verdict for the defendant is proper. Sullivan v.
Edward Hospital, 209 Ill. 2d 100, 123 (2004). Verdicts should be directed “ ‘only in those
cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so
overwhelmingly favors movant that no contrary verdict based on that evidence could ever
stand.’ ” Buckholtz, 337 Ill. App. 3d at 167 (quoting Pedrick v. Peoria & Eastern R.R. Co., 37
Ill. 2d 494, 510 (1967)).
¶ 29 We review a trial court’s decision on motions in limine for an abuse of discretion. Maggi v.
RAS Development, Inc., 2011 IL App (1st) 091955, ¶ 61. The trial court abuses its discretion
only if its ruling is arbitrary, unreasonable, or ignores recognized principles of law, or if no
other reasonable person would take the position adopted by the court. Id.
¶ 30 As plaintiff acknowledges in her brief, when personal property is destroyed or rendered
useless, the ordinary measure of damages for the property is the fair market value at the time of
the loss, the time immediately prior to its destruction. Harris v. Peters, 274 Ill. App. 3d 206,
207 (1995); Jankoski v. Preiser Animal Hospital, Ltd., 157 Ill. App. 3d 818, 820 (1987). The
plaintiff must prove damages “to a reasonable degree of certainty.” Beasley v. Pelmore, 259 Ill.
App. 3d 513, 523 (1994). Although the plaintiff need not prove the exact amount of her loss,
she must present evidence providing a basis for assessing damages with a fair degree of
probability. Id. “[L]ack of testimony concerning the condition and fair market value of the
property” at the time of loss is fatal to any action to recover for its loss. First National Bank of
Elgin v. Dusold, 180 Ill. App. 3d 714, 719 (1989).
¶ 31 The only evidence plaintiff offered to meet her burden to prove the fair market value of her
destroyed items was (a) the replacement value of the items, which the court barred her from
presenting via testimony or receipt to the jury pursuant to defendant’s motion in limine and (b)
the original cost of the items, to which plaintiff testified at trial. Neither of these is sufficient to
establish the fair market value of plaintiff’s damaged property at the time of loss.
¶ 32 First, notwithstanding plaintiff’s assertion to the contrary, the replacement cost of an item
is not equivalent to the fair market value of the item at the time of loss. For most common
household goods, values depreciate over time. “To award plaintiff[ ] the cost of new items as
replacement cost is to award plaintiff[ ] a windfall and make [her] more than whole.” First
National Bank of Elgin, 180 Ill. App. 3d at 719. The court did not err in granting defendant’s
motion in limine seeking to bar plaintiff from presenting evidence of replacement value to the
jury.
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¶ 33 Second, plaintiff’s trial testimony and exhibits were not sufficient to show the fair market
value of her personal property at the time of the leak. It is unquestioned that plaintiff submitted
evidence through testimony, receipts and a spread sheet of the original cost of assorted items of
clothing and other personal property. But she presented no evidence regarding the fair market
value of the items immediately before they were “ruined” by the rusty water. Indeed, plaintiff
testified that she did not know the fair market value because she did not know how to
determine it. Plaintiff presented evidence regarding what she paid for her items, but this is
evidence of the fair market value at the time she purchased them. She made no attempt to show
the fair market value of the items at the time of loss. In most instances, the loss of her personal
items came after she had owned and used the items for some undetermined time and the items
necessarily would have suffered wear and tear, reducing their original value.
¶ 34 Plaintiff states in her reply brief that the evidence she presented “could reasonably be used
to extrapolate the fair market value.” In essence, plaintiff admits that the evidence, standing
alone, was insufficient to show fair market value. Further, it is not the jury’s role to extrapolate
the fair market value. A jury verdict must be supported by the evidence and cannot be based on
conjecture or speculation. Lagestee v. Days Inn Management Co., 303 Ill. App. 3d 935, 946
(1999). As the trial court noted in directing the verdict for defendant on property damages, to
allow the jury to speculate regarding the fair market value of plaintiff’s items at the time of loss
would be improper.
¶ 35 It is plaintiff’s burden to prove the fair market value of her personal property items at the
time of their destruction and the jury cannot be allowed to speculate as to that value. “A jury
cannot be allowed to predicate a verdict on mere conjecture or surmise.” Publication Corp. v.
Chicago River & Indiana R.R. Co., 49 Ill. App. 3d 508, 513 (1977). To that end, the trial court
has the “discretion to reject evidence which is of little probative value because of its
remoteness, uncertainty, or conjectural nature.” Illinois State Toll Highway Authority v. West
Suburban Bank, 208 Ill. App. 3d 923, 929 (1991). After hearing plaintiff’s trial testimony, the
court correctly found that plaintiff’s testimony regarding the original purchase price of her
items and her failure to state any opinion regarding the fair market value of her items would
invite the jury to impermissibly speculate regarding the fair market value of plaintiff’s personal
property at the time of loss. Any jury determination regarding fair market value would be
unsupported by the record and the court did not err in granting defendant’s motion for a
directed verdict on property damage on this basis. Plaintiff’s lack of testimony concerning the
condition and fair market value of her personal property at the time of loss is fatal to her action
to recover for the loss of that property.
¶ 36 Plaintiff cannot claim surprise from defendant’s motion for a directed verdict or prejudice
from the court’s denial of her counsel’s request for time to draft a response to the motion.
When the court denied defendant’s motion in limine to bar plaintiff from testifying regarding
the fair market value of her destroyed personal property, defense counsel informed the court
the same issue would be raised again in a motion for a directed verdict. Further, at the jury
instruction conference, the court asked plaintiff’s counsel whether he objected to including
“damage to personal property determined by the fair market value of the property immediately
before the occurrence” (see Illinois Pattern Jury Instructions, Civil, No. 30.15 (2011)) in the
jury instructions. Counsel responded that he had no objection. Accordingly, plaintiff was
aware that she had to prove the fair market value of her items at the time of the leak and that her
failure to do so at trial would be raised in a motion for a directed verdict on property damages
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by defendant. She was not prejudiced by the court’s denial of her counsel’s request for time to
brief the motion for a directed verdict to that effect that defendant subsequently brought.
¶ 37 The court did not err in granting defendant’s motion in limine to bar plaintiff from
presenting receipts for the replacement items and defendant’s motion for a directed verdict on
property damages. Consequently, it did not err in denying plaintiff’s motion to reconsider.
¶ 38 B. Manifest Weight of Evidence
¶ 39 Plaintiff next argues the jury’s verdict should be reversed as it was against the manifest
weight of the evidence and that judgment notwithstanding the verdict should be entered for
plaintiff. The jury had found for plaintiff but awarded her zero damages, finding that “the total
amount of damages suffered by the plaintiff as a proximate result of the occurrence in question
is $0, itemized as follows: The reasonable expense of necessary medical care, treatment and
services received: $0.” Plaintiff asserts the jury’s verdict was against the manifest weight of the
evidence because plaintiff’s lay testimony and the medical bills admitted into evidence showed
plaintiff incurred personal injuries and medical bills as a result of the mold, her photographic
and video exhibits showed the presence of mold, defendant presented no contrary evidence and
the court had denied defendant’s motion for a directed verdict as to mold damages.
¶ 40 Plaintiff did not raise any of these arguments in her posttrial motion. As plaintiff stated in
the opening paragraph of her posttrial motion, the purpose of the motion was to request
reconsideration of
“the Court’s October 22, 2012 trial ruling, precluding the jury from considering any
evidence concerning the damage to [plaintiff’s] destroyed personal property based on
the Court’s conclusion that [plaintiff] did not present sufficient evidence of the fair
market value of those items *** for four separate reasons.”
She asserted the following “four reasons”: (1) the court should have granted plaintiff’s counsel
leave to brief defendant’s motion for a directed verdict, (2) laypersons may testify to the value
of household goods, (3) plaintiff’s testimony regarding the retail value of items was sufficient
to establish the fair market value of her ruined items, and (4) the law allows the jury to hear
evidence regarding the purchase price and age of unique items such as plaintiff’s custom-made
clothing.
¶ 41 All of the arguments in plaintiff’s posttrial motion were directed to challenging the court’s
decision to grant defendant a directed verdict on the basis that plaintiff could not prove the fair
market value of her “ruined” household goods and clothing. None of the arguments pertained
to the jury’s verdict, let alone challenged the verdict as being against the manifest weight of the
evidence.
¶ 42 Illinois Supreme Court Rule 366(b)(2)(iii) provides that, in a jury case, “[a] party may not
urge as error on review of the ruling on a party’s post-trial motion any point, ground, or relief
not specified in the motion.” Ill. S. Ct. R. 366(b)(2)(iii) (eff. Feb. 1, 1994). Section 2-1202(b)
of the Code further dictates that a posttrial motion “must contain the points relied upon,
particularly specifying the grounds in support thereof, and must state the relief desired.” 735
ILCS 5/2-1202(b) (West 2012). Plaintiff did not raise her argument that the jury verdict was
against the manifest weight of the evidence in her posttrial motion. Accordingly, this argument
is forfeited. Bakes v. St. Alexius Medical Center, 2011 IL App (1st) 101646, ¶ 34.
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¶ 43 C. Legally Inconsistency of Verdict
¶ 44 Plaintiff lastly argues that “[t]he jury verdict in favor of liability for Plaintiff was legally
inconsistent with the finding for zero damages and should be reversed.” We exercise all
reasonable presumptions in favor of the jury verdict, and the verdict is not legally inconsistent
unless it is absolutely irreconcilable. Balough v. Northeast Illinois Regional Commuter R.R.
Corp., 409 Ill. App. 3d 750, 774 (2011). The determination of whether the verdict is absolutely
irreconcilable is best made in a posttrial motion. Balough, 409 Ill. App. 3d at 775. Plaintiff did
not raise this in her posttrial motion.
¶ 45 As our discussion in section B makes clear, all of the arguments in plaintiff’s posttrial
motion were directed to challenging the court’s decision to grant defendant a directed verdict
on the basis that plaintiff could not prove the fair market value of her “ruined” household
goods and clothing. None of the arguments in the posttrial motion pertained to the jury verdict,
let alone asserted that the verdict should be reversed because the jury’s finding in favor of
plaintiff was legally inconsistent with its assessment of zero damages. Plaintiff did not raise
this argument in her posttrial motion and the argument is, therefore, forfeited on appeal. Bakes,
2011 IL App (1st) 101646, ¶ 34.
¶ 46 On a related point, defendant asserts that plaintiff’s argument on appeal incorrectly
supposes that the jury found in plaintiff’s favor on issues of liability. The jury delivered its
verdict on verdict form B, as follows:
“We, the jury, find for the plaintiff and against the defendant, and further find the
following:
First: Without taking into consideration the question of reduction of damages due
to any affirmative defense, we find that the total amount of damages suffered by the
plaintiff as a proximate result of the occurrence in question is $0, itemized as follows:
The reasonable expense of necessary medical care, treatment and services
received: $0.
Second: Considering the first and third affirmative defenses, we find that the
reduction attributable solely to the plaintiff’s conduct is $5,850.
Third: After reducing the total damages sustained by the plaintiff by the reduction
attributable solely to the plaintiff’s conduct, we assess the plaintiff’s recoverable
damages in the sum of $0.” (Emphasis added.)
Defendant argues that the jury’s verdict was “an inadvertent error of form” and that the jury
actually returned a unanimous verdict in favor of defendant and against plaintiff.
¶ 47 The verdict form shows that the jury found plaintiff suffered $0 damages “as a proximate
result of the occurrence” and found her conduct warranted a $5,850 “reduction.” Subtracting
the “reduction” from the total damages sustained, the jury then assessed plaintiff $0 in
recoverable damages. Defendant claims that this shows that the jury intended to not only return
a unanimous verdict for defendant and against plaintiff on liability, but also award defendant
$5,850 in damages against plaintiff for her violations of the RLTO. It asserts that the jury’s use
of verdict form B without modifying the prepared language concerning liability was an error of
form, not substance, and that the trial court’s judgment order reflects the jury’s unanimous
verdict for defendant.
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¶ 48 The court’s order was as follows:
“The jury having returned a unanimous verdict in favor of defendant and against
plaintiff Benford.
IT IS HEREBY ORDERED:
1) Judgment is hereby entered on the verdict in favor of defendant and against
plaintiff.
2) Defendant’s costs to be reimbursed by plaintiff.” (Emphases added.)
¶ 49 Plaintiff responds that the jury did not complete the form in error and that the jury clearly
found in her favor on liability. We agree. Defendant points us to nothing in the record to
substantiate its assertion that the jury did not intend to find for plaintiff and against defendant.
The fact that the jury awarded plaintiff zero damages does not mean that it found in
defendant’s favor as to liability. It merely means that, although the jury found defendant liable
for damages, it found plaintiff did not prove those damages. Similarly, the jury’s finding that a
$5,850 “reduction” was due does not mean it awarded defendant $5,850 in damages from
plaintiff. Instead, the finding means that, if there had been a damage award to plaintiff, her
damages would be reduced by $5,850. Given that plaintiff did not prove her damages to the
jury’s satisfaction, the reduction necessarily did not apply. We note that the record contains no
copies of the verdict forms or jury instructions given, but we also note that, given that
defendant did not proceed on a counterclaim, an award of damages for defendant would not be
possible. Accordingly, we presume that the jury had a reason for using Verdict Form B and
intended to find for plaintiff.
¶ 50 With regard to the trial court’s order entering judgment “on the verdict in favor of
defendant and against plaintiff,” the court erred by changing the verdict from one in favor of
plaintiff on the issue of liability to a finding in favor of defendant. The trial court has the
discretion to amend the jury’s verdict but abuses that discretion if it ignores recognized legal
principles. Theofanis v. Sarrafi, 339 Ill. App. 3d 460, 473 (2003).
“Under established legal principles, the court may amend the jury verdict ‘only when
the defect is one of form, rather than substance. [Citation.] A trial court should not
amend a verdict in order to reach a determination that the court believes the jury ought
to have made, and an amendment must reflect only what the jury clearly intended the
verdict to be.’ ” Id. (quoting Crowell v. Parrish, 159 Ill. App. 3d 604, 608-09 (1987)).
¶ 51 Here, the only evidence regarding what the jury intended is the verdict form on which it
stated its finding for plaintiff. Defendant neither provides an explanation for why the court
entered the order contrary to the jury verdict nor points us to the record to substantiate that the
jury verdict was, indeed, an error. The record contains nothing to show that the court polled the
jury to inquire regarding what the jury intended the verdict to be. There is also nothing to show
that the court’s order was the result of finding a judgment notwithstanding the verdict. Absent
an inquiry by the court regarding the jury verdict and an opportunity for the jury to correct the
verdict, the court had no authority to enter an order contrary to the jury verdict. In this regard,
we must presume that, had the jury indicated that it had used the wrong form, the trial court
would have given the jury the opportunity to correct its mistake by signing the correct form.
Accordingly, on this record, the court had no basis to enter an order contrary to the jury verdict.
Pursuant to that verdict, plaintiff was the prevailing party below. We remand and order the
court to correct its order to reflect the jury verdict in favor of plaintiff.
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¶ 52 D. Motion Taken With the Case
¶ 53 As a final matter, we address the motion taken with the case.
¶ 54 On August 7, 2013, we granted in part plaintiff-appellant’s “motion to reconsider
combined motion to supplement the record and appeal and for other relief” by allowing
plaintiff to supplement the record with court reporter transcripts of (a) plaintiff’s trial
testimony during direct and cross-examinations, (b) a motion in limine conference, and (c) the
hearing on defendant’s motion for a directed verdict. Plaintiff’s motion also requested that
defendant be ordered to pay the costs associated with including the transcripts in the record
given that defendant had requested that the transcripts be included. Defendant objected and we
ordered that “the question of who shall pay the cost of these transcripts” be taken with the case.
¶ 55 Upon review, we find that, as defendant states in its response to plaintiff’s motion, the three
transcripts were “obvious omissions” from the record on appeal. The transcripts relate directly
to the issues raised by plaintiff on appeal and are necessary for our consideration of those
issues. It is plaintiff’s burden as the appellant to present this court with a sufficiently complete
record on appeal to support her claims of error. Foutch v. O’Bryant, 99 Ill. 2d 389, 391-92
(1984). To that end, Illinois Supreme Court Rule 323(a) provides that “[t]he report of
proceedings shall include all the evidence pertinent to the issues on appeal.” Ill. S. Ct. R.
323(a) (eff. Dec. 13, 2005). Illinois Supreme Court Rule 329 provides that “[m]aterial
omissions” may be corrected either before or after the record is transmitted to the reviewing
court and “[i]f the record is insufficient to present fully and fairly the questions involved, the
requisite portions may be supplied at the cost of the appellant.” Ill. S. Ct. R. 329 (eff. Jan. 1,
2006). Given that the transcripts were necessary to fully present the issues plaintiff raised, the
cost of supplying the transcripts should be borne by plaintiff. Accordingly, we deny plaintiff’s
motion seeking to impose on defendant the costs associated with supplementing the record
with the transcripts.
¶ 56 CONCLUSION
¶ 57 For the reasons stated above, we affirm the decision of the trial court and remand for
correction of the court’s order as set forth above. We deny plaintiff’s motion seeking to impose
on defendant the costs associated with supplementing the record with the transcripts.
¶ 58 Affirmed and remanded.
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