ILLINOIS OFFICIAL REPORTS

Appellate Court

Williams v. BNSF Ry. Co., 2013 IL App (1st) 121901

Appellate Court

Caption

ANTHONY WILLIAMS, Plaintiff-Appellee, v. BNSF RAILWAY

COMPANY, f/k/a Burlington Northern Railroad Company, f/k/a The

Burlington Northern and Santa Fe Railway Company, d/b/a The

Burlington Norther Santa Fe Railway Company, Defendant-Appellant

(BNSF Railway Company, Third-Party Plaintiff-Appellant; Quality

Terminal Services, LLC, Third Party Defendant-Appellee).

 District & No. First District, Third Division

Docket No. 1-12-1901

Filed September 25, 2013

Held

(Note: This syllabus

constitutes no part of

the opinion of the court

but has been prepared

by the Reporter of

Decisions for the

convenience of the

reader.)

Defendant railroad’s appeal from an award of damages to plaintiff

pursuant to the Federal Employers’ LiabilityAct and a verdict against the

railroad on its contractual indemnity claim was dismissed for lack of

jurisdiction, where the railroad failed to file its appeal within 30 days of

the trial court’s oral orderruling on all posttrial motions, regardless of the

railroad’s contention that the circumstances of the trial court’s oral ruling

led to confusion, since the railroad should have sought clarification

within 30 days of that ruling.

Decision Under 

Review

Appeal from the Circuit Court of Cook County, No. 06-L-8509; the Hon.

Clare E. McWilliams, Judge, presiding.

Judgment Appeal dismissed.
Counsel on

Appeal

Daley Mohan Groble, PC, of Chicago (Raymond H. Groble III, Sean M.

Sullivan, and Jeffrey J. Scolaro, of counsel), for appellant.

Cochran, Cherry, Givens, Smith & Montgomery, LLC, ofChicago (James

D. Montgomery, Jr., and John K. Kennedy, of counsel), for appellee

Anthony Williams.

Fletcher & Sippel LLC, of Chicago (James A. Fletcher and Peter C.

McLeod, of counsel), for appellee Quality Terminal Services, LLC.

Panel JUSTICE MASON delivered the judgment of the court, with opinion.

Presiding Justice Hyman and Justice Neville concurred in the judgment

and opinion.

OPINION

¶ 1 Plaintiff-appellee Anthony Williams filed suit against defendant-appellant BNSF Railway

Company (BNSF) pursuant to the Federal Employers’ Liability Act (FELA) (45 U.S.C. § 51

(2006)), for an employment-related injury. BNSF filed a third-party complaint for

contribution and contractual indemnification against third-party defendant-appellee Quality

Terminal Services (QTS). The jury returned a verdict in favor of Williams and awarded total

damages in the amount of $2,676,960. The jury assessed 50% of the negligence involved in

the injury to Williams, 37.5% to BNSF and 12.5% to QTS. The jury also returned a verdict

in favor of QTS on BNSF’s contractual indemnity claim.

¶ 2 On appeal, BNSF contends that the circuit court erred in denying its motion for a directed

verdict on the contractual indemnity claim where the evidence established that BNSF gave

reasonable notice to QTS. BNSF further contends that the circuit court erred in refusing to

allow evidence related to Williams’ termination of employment with BNSF. Finally, BNSF

contends that the circuit court erred in allowing evidence of the loss of household services,

including unsupported opinion testimony regarding the value of those services.

¶ 3 Williams, joined by QTS, asserts that this court lacks jurisdiction because BNSF’s notice of

appeal was not timely filed. Williams and QTS also contend that BNSF has waived many of

the issues it raises and that, in any event, the jury’s verdict is supported by the evidence. For

the reasons that follow, we dismiss this appeal for lack of jurisdiction.

¶ 4 As an initial matter, both Williams and QTS argue that this court lacks jurisdiction to decide

this appeal because BNSF did not file its notice of appeal within 30 days of the trial court’s

oral ruling on all posttrial motions. Williams filed a motion to dismiss this appeal for lack

-2-
of jurisdiction and QTS joined in the motion. Another panel of this court denied the motion

on August 12, 2012.

¶ 5 BNSF first argues that the court should not address the jurisdictional arguments raised by

Williams and QTS given the denial of their earlier motion to dismiss. However, as discussed

below, the procedural posture of the case following trial is complicated and the record is

unclear in certain respects. Thus, without an in-depth examination of the record and the

issues raised by the motion to dismiss, it would have been difficult to discern the merits of

the parties’respective positions. Further, because the motion to dismiss concerns jurisdiction

over this appeal, it is appropriate for Williams and QTS to ask us to revisit the issue and,

indeed, we have a duty to do so. See Lebron v. Gottlieb Memorial Hospital, 237 Ill. 2d 217,

251-52 (2010) (noting that “a reviewing court has a duty to consider its jurisdiction and to

dismiss the appeal if it determines that jurisdiction is wanting” (internal quotation marks

omitted) (quoting Archer Daniels Midland Co. v. Barth, 103 Ill. 2d 536, 539 (1984))).

Therefore, we will address our jurisdiction over BNSF’s appeal.

¶ 6 The trial court issued an oral ruling denying all posttrial motions on April 18, 2012. No

written ruling reflecting the court’s ruling was ever entered. The only issue remaining after

the oral ruling was BNSF’s request for a setoff against the judgment in the amount of taxes

it would have to pay in the future on lost wages awarded by the jury. Williams, joined by

QTS, contends that because a setoff satisfies rather than modifies a judgment, it does not toll

the 30-day period for filing a notice of appeal and, therefore, BNSF’s notice of appeal filed

on June 29, 2012, 72 days after the denial of all posttrial motions, was untimely.

¶ 7 Following the jury’s verdict, BNSF filed its posttrial motion on January 26, 2012. The

motion sought a new trial or, alternatively, judgment notwithstanding the verdict on 45

different grounds, including claimed errors in evidentiary rulings and jury instructions, and

the court’s failure to conclude that BNSF’s demand for indemnification from QTS was

timely as a matter of law. A ruling in favor of BNSF on any of the foregoing issues would

have required the court to either grant a new trial or set aside the jury’s verdict in favor of

either or both Williams or QTS and vacate or modify the judgment accordingly.

¶ 8 In contrast, the forty-sixth issue raised in BNSF’s posttrial motion–its request for a setoff in

the amount of taxes payable as a result of lost wages awarded to Williams–if granted, would

not have required the trial court to modify or set aside the judgment entered on the jury’s

verdict. Instead, the requested setoff, if allowed, would have served as partial satisfaction of

the judgment.

¶ 9 The record reflects that at the conclusion of the hearing on posttrial motions on April 18,

2012, the trial court orally ruled that the posttrial motions were denied, with the exception

of the “taxation issue” raised by BNSF, which the court took under advisement. The trial

court stated that it would issue an order “on [the tax setoff issue] probably within the next

ten days or so” and the parties would be notified at that time. No written order was entered

on April 18.

¶ 10 On May 31, 2012, more than 30 days after the trial court’s April 18 ruling, BNSF filed an

-3-
“emergency” motion for leave to file supplemental authority. BNSF’s supplemental 1

authority, Crowther v. Consolidated R. Corp., 680 F.3d 95 (1st Cir. 2012), related to a claim

raised in its posttrial motion that it was entitled to a remittitur for the amount of disability

payments received by Williams. This issue had already been rejected by the trial court in its

April 18, 2012 oral ruling.

¶ 11 On June 1, 2012, at a hearing on BNSF’s motion, the trial court commented that BNSF’s

motion seemed to assume that BNSF’s entire posttrial motion was under advisement and

asked counsel for BNSF if he was unclear about the court’s prior ruling. BNSF’s counsel

responded that in advance of the final, appealable written ruling on all issues, he wanted to

submit new authority that he contended was on point with certain issues raised in BNSF’s

posttrial motion. The court reiterated that all posttrial relief sought by BNSF had already

been denied, the only issue remaining being BNSF’s claim for a setoff for future taxes. The

court stated that a written ruling would be issued on the only remaining issue, but informed

counsel that if a written ruling could not be issued shortly, the court would rule orally.

¶ 12 With respect to the new authority regarding its request for a remittitur, BNSF argued, as it

had in its original posttrial motion, that the jury had awarded lost wages, but Williams had

been receiving disability payments, so BNSF was entitled to a remittitur for the disability

payments received. The trial court agreed with Williams’ counsel that it had already denied

that portion of the posttrial motion, but stated that it was appropriate for BNSF to bring new

case law to the court’s attention.

¶ 13 The trial court then turned to the setoff issue. Following a discussion regarding whether the

trial court had jurisdiction to decide this issue, the court stated, “I’m going to ask you to

come back one last time. I’m going to give you a record that you can take up because I

assume you’re going to take up this case.”

¶ 14 Another hearing was held on June 6, 2012. During this hearing the court observed that the

issues presented related to BNSF’s request for a remittitur in an amount equal to the

disability payments Williams had received since the date of his injury, and a setoff for taxes.

The court distinguished Crowther and again denied that portion of BNSF’s posttrial motion.

The trial court then turned to the tax setoff issue and indicated its belief that BNSF was

seeking an advisory opinion on an issue not properly before the court. The court instructed

the parties to draft an order including the following language: “For all the reasons stated in

the record the post-trial motion is denied. Everyone is responsible for their own tax liability.”

¶ 15 Counsel for Williams sought clarification on the phrase “post-trial motion,” and specifically

whether the court was referring only to the tax setoff issue or whether it was again ruling on

other issues raised in BNSF’s posttrial motion. The court clarified that the ruling concerned

only the remittitur for disability payments and the tax setoff issue. The court also indicated

that the order should include language to the effect that the order was final and appealable.

¶ 16 The written order of June 6, 2012 states: “For all reasons stated by the Court, on record, on

June 6, 2012, post-trial motions relating to disability payments + taxes are denied.” The

phrase “relating to disability payments + taxes” was inserted after the original order was

The nature of the “emergency” prompting BNSF’s motion is unclear.

1

-4-
prepared. The order further stated that it was “final and appealable,” with the additional

phrase, “regarding the verdict in this matter” crossed out. The foregoing changes were made

by counsel for Williams.

¶ 17 After the order was drafted, the parties asked that the case be recalled. Counsel for BNSF

complained about the changes made to the order by opposing counsel and argued that

because this was the first written order regarding posttrial motions, it should reflect a denial

of all posttrial motions. Counsel for Williams argued that when he asked whether the court’s

June 6 order related only to disability payments and a setoff for future taxes, the court

answered affirmatively. Counsel for Williams furtherstated his belief that BNSF was trying

to make June 6, 2012, the operative date for purposes of filing a notice of appeal.

¶ 18 The trial court asked counsel for BNSF to articulate the basis for his objection to the order.

Counsel responded that he wanted to include the language that counsel for Williams had

crossed out, namely, that the order was final and appealable “regarding the verdict in this

matter.” The court found that that language was properly omitted. The court then stated that

the order was final and appealable in its entirety. The transcript reflects that counsel for

BNSF asked, “[i]n its entirety?” to which the trial court responded, “[t]he entire case for the

record is final and appealable.” The order was then entered, incorporating the changes

discussed above.

¶ 19 As noted, BNSF’s notice of appeal was filed on June 29, 2012, within 30 days of the entry

of the June 6, 2012 order, but 72 days after the trial court’s oral denial of BNSF’s posttrial

motion.

¶ 20 We believe that Williams’ and QTS’ jurisdictional arguments are well-taken. The trial court

expressly denied all issues raised in BNSF’s posttrial motion on April 18, 2012, specifically

reserving onlyBNSF’s setoff claim. There is nothing in the record to indicate that the parties

and, in particular, BNSF, anticipated the entry of any written order reflecting the court’s

ruling. We do not believe BNSF’s request for a setoff tolled the time for filing its notice of

appeal from the court’s oral ruling denying its posttrial motion.

¶ 21 As our supreme court has noted, a request for a setoff seeks to satisfy, not modify, the

judgment entered by the trial court. Star Charters v. Figueroa, 192 Ill. 2d 47, 48 (2000). In

Star Charters, defendant Star Charters filed a separate suit two months after a $200,000

judgment on a jury’s verdict was entered in favor of Figueroa. Id. Star Charters sought a

setoff of $70,000 against the judgment as a result of a settlement reached with another

defendant. Id. Figueroa argued that Star Charters was obligated to pursue its setoff request

within 30 days of entry of the judgment pursuant to section 2-1202 of the Code of Civil

Procedure (735 ILCS 5/2-1202 (West 1996)). Star Charters, 192 Ill. 2d at 48. Rejecting

Figueroa’s argument, the supreme court stated:

“[D]efendant’s request for setoff *** seeks not to modify, but rather to satisfy the

judgment entered by the trial court. [Citations.] Such a request does not arise as a result

of trial, but is instead in the nature of a supplementary or enforcement proceeding within

the inherent power of the judgment court. Because the request is not a motion directed

against the judgment, it is not subject to the 30-day time limit applicable to post-trial

motions.” (Emphases in original.) Star Charters, 192 Ill. 2d at 48-49.

-5-
The court thus found that Star Charters’ request for a setoff was not time-barred.

¶ 22 Here, because BNSF could have pursued its request for a setoff more than 30 days following

the denial of its posttrial motion seeking to vacate or modify the judgment, it logically

follows that the pendency of BNSF’s setoff request could not postpone BNSF’s obligation

to timely appeal from the denial of its posttrial motion. The setoff request raised by BNSF

is no different from any other credit sought by a judgment debtor, such as credit for pretrial

settlements with other defendants. The fact that BNSF’s posttrial motion commingled

requests for relief that sought to vacate or modify the judgment with a setoff request that

sought only to partially satisfy the judgment cannot change this result. Consequently, if the

only issue remaining after April 18, 2012, was BNSF’s request for a setoff, relief that does

not fall within the purview of section 2-1202, BNSF was required to file its notice of appeal

within 30 days after that date and its notice of appeal filed 72 days later was untimely.

¶ 23 BNSF also argues, however, that the trial court’s June 6, 2012, order ruled on the disability

annuity remittitur issue and, therefore, all issues directed to the judgment raised in BNSF’s

posttrial motion had not been resolved prior to that date. If BNSF is correct, its notice of

appeal was timely because it was filed within 30 days of June 6, 2012.

¶ 24 BNSF’s contention in this regard is belied by the record. BNSF’s request for a remittitur to

account for disability payments received by Williams was, like all of the other arguments

advanced by BNSF in its posttrial motion, rejected by the trial court as part of its oral ruling

on April 18, 2012. Specifically, the trial court stated, “The post-trial motions that have been

filed are respectfully denied, with the exception of the taxation issue which I will take under

advisement.” BNSF’s “emergency” motion regarding the remittitur issue was not filed until

May 31, 2012, more than 30 days after the denial of its posttrial motion. Therefore, the trial

court no longer had jurisdiction to reconsider its prior ruling on remittitur relating to the

disability annuity. Because the 30 days had already run, the trial court could not revest itself

with jurisdiction by stating at the June 1, 2012, hearing on BNSF’s motion that it was

appropriate for BNSF to bring new case law to the court’s attention.

¶ 25 Finally, the fact that the trial court did not issue a written order denying the posttrial motions

does not make the oral ruling of April 18 any less final. Illinois Supreme Court Rule 272

provides that if, at the time of announcing final judgment, the judge requires the submission

of a written order or if a circuit court rule requires the prevailing party to submit a draft order,

the judgment is not final until the signed judgment is filed. Ill. S. Ct. R. 272 (eff. Nov. 1,

1990). However, Rule 272 further provides that if no such signed judgment is to be filed, the

judgment is entered at the time it is entered of record.

¶ 26 On April 18, the trial court unequivocally ruled that the posttrial motions were denied, with

the exception of the tax setoff issue, and further stated that it would issue a written order on

the setoff issue only. The court made no reference to a written order regarding the posttrial

motions and did not ask the parties to prepare such an order. At the June 1 hearing, the trial

court again stated that it hoped to issue a written order on the setoff issue but if not, it would

issue an oral ruling on that issue.

¶ 27 At the close of the June 6, 2012, hearing, the trial court instructed the parties to prepare a

draft order, but the court made clear that the order related only to the remittitur for disability

-6-
payments and the setoff for future taxes. Moreover, when counsel for Williams brought to

the trial court’s attention his belief that BNSF was trying to make June 6 the operative date

for purposes of filing a notice of appeal, the court allowed the changes to the order limiting

the ruling to two issues to stand. Thus, the only written order in the record specifically limits

the ruling to the disability annuity issue (which, as noted, was no longer properly before the

court) and the setoff issue. Given that the trial court never required the submission of a

written order regarding the denial of BNSF’s posttrial motion, the oral ruling on that motion

was therefore final on April 18, 2012, the date it was entered into the record.

¶ 28 We agree with the assessment by Williams’ counsel that BNSF was attempting to create

uncertainty as to the finality of the April 18 ruling when it stated in its emergencymotion that

“[a]t the conclusion of oral argument, the Court reserved written ruling on all post-trial

motions.” This statement is not supported by the record. In the event that any uncertainty

remained after the April 18 ruling, despite the trial court’s unequivocal statement that

BNSF’s motion was denied with the exception of the setoff issue, it was incumbent on BNSF

to seek clarification within 30 days of the court’s ruling. See Hernandez v. Pritikin, 2012 IL

113054, ¶ 41 (noting that it is the movant’s responsibility to obtain a ruling on his motion

if he is to avoid forfeiture on appeal). Because BNSF did not file a notice of appeal within

30 days of the trial court’s denial of all posttrial motions seeking relief within the scope of

section 2-1202, this court lacks jurisdiction to hear this appeal.

¶ 29 For the reasons stated herein, this appeal is dismissed for lack of jurisdiction.

¶ 30 Appeal dismissed.

-7-