## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

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

Appellate Court Caption ANTHO NY WI L L IAMS, Plaintiff-Appellee
, v. BN SF RAI L W AY COMPANY, f/k/a Burlington Norther n Railroad C o m p any , f/k/a The Bur lington Norther

n and Santa Fe Railway Company
, d/b/a The Bur lington Norther Santa Fe Railway Company
, Def endant- Appellant (B NSF Railway Company
, T h ird-Party Plaintiff-Appellant; Quality Terminal Ser

vices, L L C, Third Party

Def endant- Appellee ).

District & N o. First District, Third Division Docke t No. 1-12-1901

Filed September 25, 2013

Held (N ote : This syl lab us

con st it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed by t h e Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) Def endant railroa d’s appea l from an awa rd of damag es to p l ai n t i ff pursuant to the Fe dera l Employ ers’ L iability Act and a verdic t ag ainst the railroa d on its contra ctual indemnity claim was dismiss ed for lack of jurisdiction, whe re the railroa d failed to f ile its appea l within 30 day s of the trial court’s oral order ruling on all posttrial motions, reg ardle ss of the railroa d’s contention that the circ umstances of the trial court’s oral ruling led to conf

u s ion, since the railroa d should have soug ht clarification within 30 day s of that ruling

.

Dec ision Under
Review Appea l from the Circuit Court of Cook County
, No. 06-L -8509; the Hon. Clare E. Mc Wil liams, J udg e, pre siding.

J udg ment Appea l dismi ssed.Counsel on

Appea l Daley Mohan Groble, PC, of Chicag o (Ray mond H. Groble I I I
, Sean M. Sulli van, and Jeffr ey

J . Scolaro, of c ounsel), for appellant.

Co c hran, Cherry
, Givens, Smit h & Montgome ry , L L C, o f Ch ic a g o ( Ja me s D. Montgome ry , J r., and J ohn K. Kenne dy
, of counsel), for appellee Anthony Wil liams.

Fl et cher & Sippel L L C, of Chicag o (James A. Fletc her and Peter C. McL eod, of c ounsel), for

appellee Quality

Terminal Ser

vices, L L C.

Panel J USTI CE MASON delivere d the judg ment of the c ourt, with opinion. Presiding Justice Hy

man and Just ice Ne ville concur red in the judgment and opinion.

OP INION

¶ 1 Plaintiff-appe llee Anthony Wil liams filed sui t ag ainst defe ndant- ap pellant BNSF Railway Company (B NSF) pursuant to the Fe dera l Employ ers’ L iability Act (F ELA) (45 U.S.C. § 51 (2006))
, for an em ploy ment-re lated injury

. BN SF filed a third-par ty complaint for contribution and contra ctual indemnification ag ainst third-par ty defe ndant-a

ppellee Quality Terminal Service s (QTS). The jury returne d a verdic t in favor of Wil liams and awa rded total damag es in the amount of $2,676,960. The jury assessed 50% of the neg lige nce involved in the injury to Wil liams, 37.5% to BN SF and 12.5% to QTS. The jury also returne d a verdic t in favor of

QTS on BNSF ’s contra ctual indemnity claim. ¶ 2 On appeal, BNSF contends that the circuit court erre d in denying its motion for a d i re ct ed verdic t on the contra ctual indemnity claim wher e the evidenc e established that BN SF g ave

rea sonable notice to QTS. B NSF further contends that the circ uit court err ed in re fusingto allow evidenc e related to Wil liams’ termination of employ ment with BN SF. Finally
, BN SF contends that the circ uit court err ed in allowing evidenc e of the loss of household service s, including unsuppor

ted opinion testimony

reg ardingthe value of

those servic es. ¶ 3 Wil liams, joined by QTS, asser ts that this court lacks jurisdiction beca use BN SF’s notice of
appea l was not timely filed. Wil liams and QTS also contend that BN SF has waived many of the issues it raises and that, in any event, the jury ’s verdic t is supported by the evidenc e. For the re asons that follow, we dismiss this appeal for lack of jurisdiction. ¶ 4 As an initial matter, both Wil liams and QTS argue that this court lacks jurisdiction to decide this appea l beca

use BN SF did not file its notice of appea l within 30 day s of the trial court’s oral ruling on all posttrial motions . Wil liams filed a mot ion to dismiss this appea l for lack

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

on August 12, 2012. ¶ 5 BN SF fi rs t ar gu es that the court should not addre ss the jurisdictional arguments raised by Wil liams and QTS g iven the denial of their ear lier motion to dismiss

. Howeve r, as discussed below, the proce dural posture of the case following trial is complicated and the rec ord is unclea r i n certain respe cts. Thus, without an in-depth examination of the rec ord and the issues raised by

the motion to dismiss, it would have been difficult to disc ern the merits of the parties’ respe ctive positions. Fur ther, beca use the motion to dism is s conce rns jurisdiction

over this appea l, it is appropr iate for Wil liams and QTS to ask us to revisit t h e issue and, indeed, we have a duty to do so. See Lebron v. Gottlieb Mem orial Hospital
, 237 I ll. 2d 217, 251-52 (2010) (notingthat “a r eviewingcourt ha s a duty to consider its jurisdiction and to dism i s s the appea l if it deter mines that jurisdiction is wanting ” (interna l quotation marks omitted) (quoting Archer Daniels Midland Co. v. Barth
, 103 I l l

. 2 d 536, 539 (1984)) ). There fore , we will addr ess our jurisdiction over B NSF’s a ppeal. ¶ 6 The trial court issued an o ra l ru l i n g d enying all posttrial motions on April 18, 2012. No written ruling ref

lecting the court’s ruling was ever enter ed. The only issue rema ining afte r the oral ruling was BN SF’s reque st for a setoff ag ainst the judgme nt in the amount of taxes it would have to pay in the future on lost wag es awa rded by the jury

. Wil liams, joined b y QTS, contends that beca

use a setoff satisfies rathe r than modifies a judgme nt, it does not toll the 30-day period for filing a notice of appea l and, there fore
, BN SF’s notice of appea l filed on J une 29, 2012, 72 day s after the denial of

all posttrial motions , was untimely

. ¶ 7 Following the j u ry ’s v er d i ct , BN SF filed its posttrial motion on J anuar y 26, 2012. The

m o t i o n s oug ht a new trial or, alternatively
, judgme nt notwithstanding the verdic t on 4 5 differ ent g rounds, including claimed err ors in evidentiar y ruling s and jury instructions, and the court’s fail u re t o conclude that BN SF’s demand for indemnification from QTS was timely as a matter of law . A ruli ng in favor of BNSF on any of the foreg oing issues would have require d the court to either gr ant a new trial or set aside the jury ’s ve rd i ct in favor of either or both Wi lliams or QTS and vac ate or modify the judg ment acc ording ly

. ¶ 8 In contra st, the forty -six th issue raised in BN SF’s posttrial motion–it s reque st for a setoff in the amount of taxes payable as a result of lost wag es awa rded to Wil liams–if g rante d, would
not have require d the trial court to modif y o r s et aside the judgme nt enter ed on the jury ’s verdic t. Instead, the reque sted setoff, if allowed, would have serve d as partial satisfac tion of the judg ment. ¶ 9 The rec ord ref

lects that at the conclusion of the hearing on p o s t t ri al m o t ions on April 18, 2012, the t rial court orally ruled that the posttrial motions weredenied, with the ex ception of the “taxation issue” raised by BN S F, wh i ch the court took under advisement. The trial court stated that it would issue an orde r “on [t he tax setoff issue] probably within the nex t ten day s or so” and the parties would be notified at that time. N o written order was enter ed on April 18. ¶ 10 On M ay 3 1
, 2 0 1 2, more than 30 day s afte r t he trial court’s April 18 ruling
, BN SF fil ed an

-3-“eme rg ency” motion for leave to file supplemental author i t y

. BNSF’s supplemental 1 authority
, Crowther v. Consolidat ed R. Corp.
, 680 F.3d 95 (1st Cir. 2012), related to a claim raised i n i t s p osttrial motion that it was entitl ed to a remitti tur for the amount of di sability
pay ments rec eived by Wil liams. This issue had alre ady been reje cted by the trial court in its April 18, 2012 oral r

uling. ¶ 11 On J une 1, 2012
, at a hear ing on BN SF’s motion, the trial court commented that BN SF’s motion seeme d to assume that BN SF’s entire posttrial motio n wa s under advisement and asked cou n s el for BN SF if he was unclea r about the court’s prior ruling

. BN SF’s counsel responde d that in advanc e of the final, appea lable written ruling on all issues, he wanted to submit new authority that he conte nded was on point with cer tain issues raised in BN SF’s posttrial motion. The court reiter ated that all posttrial relief sou gh t by BN SF had alre ady been denied, the only issue rema ining being BN SF’s claim for a setoff for future taxes. The
court stated that a written ruling would be issued on the only rema ining issue, but informed counsel that if a

written rulingcould not be issued shortly , the cour t would rule ora lly

. ¶ 12 Wit h respe ct t o the new a uthority reg ardingits request for a remitti tur, BN SF argued, as it had in its origina l posttrial moti on, that the jury had awa rded lost wa g es, but Williams had been rec eiving disability pay ments, so BN SF was entitled to a remittitur for the disability
pay ments rec eived. The trial court agree d with Wil liams’ counsel that it had alre ady denied that portion of the posttrial motion, but stated that it was appropr iate for BN SF to bring new

case law to the cour

t’s attention. ¶ 13 The trial court then turned to the setoff issue. Following a discussion reg arding whether the trial court had jurisdiction to decide this issue, t h e co urt s t ated, “I ’m g oing to ask you to

come back one last time. I ’m g oing to g ive you a re co rd that you can take up beca use I
assume you’re g oing to take up this case.” ¶ 14 Another he aring

was he ld on J une 6, 2012. During this hearing the court obser ved that the issues prese nted related to BN SF’s reque st for a re m i t t itur in an amount equal to the disability pay

ments Wil liams had rec eived since the date of his injury
, and a setoff for taxes. The court distinguished Crowther and ag ain denied that portion of BN SF’s posttrial motion. The trial court then turned to the tax seto ff issue and indicated its belief that BN SF was seeking an advisory opinion on an issue not pr operly befor e the court. The c ourt instructed the parties to dr aft an order including the following languag e: “F or all the rea sons sta ted in the rec ord the post-trial motion is denied. Everyone is responsible for their own tax liability .” ¶ 15 Counsel for Wil liams soug ht clar ification on the phrase “post-trial motion,” and specific ally whether the court was ref err ing only to the tax setoff issue or whether it was ag ain ruling on other issues raised in BN SF’s posttrial motion. The court clar ified that the ruling conce rned only the remittitur f

or disability pay

ments and the tax setoff issue. The court also indicated that the order should inc lude languag e to the eff ect that the order was final and appea lable. ¶ 16 The written order of J une 6, 2012 states: “F or all rea sons stated by the Court, on rec ord, on J une 6, 2012, post-trial motions relating to disability pay ments + taxes are den i ed

. ” T h e phrase “re lating to disability pay ment s + taxes” was inserted afte r the orig inal order was

T he n ature of

th e “ emergency” pr om

pti ng BNSF’s m oti on i s un cl ear

. 1

-4-prepa red. The order further stated that it was “fina l and appea lab le,” with the additional phrase
, “re g arding the verdic t in this matter” crosse d out. The fore g oing chang es wer e made by counsel for

Wil liams. ¶ 17 After the order was draf ted, the p ar t i es asked that the case be rec alled. Counsel for B NSF complained about the chang es made to the o rd er by opposing counsel and argued that beca use this was the first written order reg arding posttrial motions, it should ref lect a denial of all posttrial motions. Counsel for Wil liams argued that when he asked whether the court’s J une 6 order related only to disability pay ments and a setoff for future taxes, the court

answe red aff

irmatively

. Counsel for Wil liams further stated his belief that BN SF was trying to make June 6, 2012, the operative date f or purpose s of filinga notice of appea l. ¶ 18 The trial court asked counsel for BN SF to a rticulate the basis for his objection to the order

. Counsel responded t h at he wanted to include the languag e that counsel for Wil liams had

crosse d out, namely
, that the order was final and appeal ab le “re g arding the verdic t in this matter.” The court found that that languag e was proper ly omitted. The court then stated that the order was final and appea lable in its entirety

. The transcript ref lects that counsel for BN SF asked, “[i] n its entirety ? ” to which the trial court responde d, “[t] he entire case for the

rec ord is final and appea lable.” The order was then enter ed, incorporating the chang es discussed above

. ¶ 19 As noted, B NSF’s notice of appea l w as filed on J une 29, 2012, within 30 day s of the entr y of the June 6, 2012 orde r, but 72 day s after the trial cour

t’s oral denial of BN SF’s posttrial motion. ¶ 20 We believe that Wil liams’ and QTS’ jurisdictional arguments are well-take n. The trial court expressly denied all issues raised in BN SF’s posttrial motion on April 18, 2012, specific ally

rese rving only BN SF’s setoff claim. There is nothing in the rec ord to indicate that the parties and, in particula

r, BN SF, anticipated the entry of any written o rd er re flec ting the court’s ruling

. We do not be lieve BN SF’s reque st f or a setoff tolled the time f or filing its notice of
appea l from the cour

t’s oral ruling

denying its posttrial motion. ¶ 21 As our supreme court has noted, a reque st for a setoff seek s t o s at i sfy
, not modify , the judgme nt enter ed by the trial court. Star Charters v. Figueroa
, 192 I ll. 2d 47, 48 (2000). In Star Charters
, defe ndant Star Charter s filed a separ ate suit two months afte r a $200,000 j u d gm en t on a jury ’s verdic t was enter ed in favor of Figueroa

. Id. Star Charter s soug ht a setoff of $70,000 ag ainst the judgme nt as a result of a settlem en t re ache d with another defe ndant. Id. Figueroa arg ued that Star Charter s was oblig ated to pursue its setoff re quest within 30 day s of entry of the judgme n t p u rs u an t t o section 2-1202 of the Code of Civil Procedur e (735 I L CS 5/2-1202 (West 1996)). Star C h a rters , 192 I ll. 2d at 48. Rejecting Figueroa ’s ar gument, the supreme court stated: “[D]efendant’s reque st for setoff *** seeks not to modify
, but rathe r to satisfy the judgme nt enter ed by the trial court. [C itations.] Such a reque st does not arise as a result of trial, but is instead in the nature of a supplementary or enfor ceme nt proce eding within the inhere nt power of

the judg ment court. Bec ause the reque st is not a motion di rec ted
ag ainst the judgme nt , i t i s n o t subject to the 30-day time limit applicable to post-trial motions.” (Emphases in orig inal.) Star Chart ers , 192 I ll. 2d at 48-49.

-5-The c ourt thus found that Star Charter s’ re quest for a setoff w as not time-bar

red. ¶ 22 Her e, beca

use BN SF could have pursued its reque st for a setoff more than 30 day s following the denial of its posttrial motion seeking to vacate or modify the judgme n t , i t l o g ically follows that the pende ncy of BN SF’s setoff reque st c ould not postpone BN SF’s oblig ation to timely appea l from the denial of i ts posttrial motion. The setoff r equest ra ised by BN SF is no differ ent from any other cre dit soug ht by a judgme nt debtor, such as cre dit for pretria l
set t l ements with other defe ndants. The fac t that BN SF’s posttrial motion commingle d
reque sts for relief that soug ht to vacate or modify the judgme nt with a setoff re qu es t that
soug ht only to partially satisfy the judgme nt cannot chang e this result. Consequently
, if the only issue rema ining afte r April 18, 2012, was BN SF’s reque st for a setoff, relief that does
not fall within the purview of section 2-1202, BN SF was require d to file its notice of appea l within 30 day s after

that date a

nd its noti ce of

appea l filed 72 day s later wa s untimely

. ¶ 23 BN SF also argues, howeve r, that the trial court’s J une 6, 2012, order ruled on the disability annuity remittitur issue and, there fore
, all issues direc ted to the judgme nt raised in BN SF’s posttrial motion had not been resolved prior to that date. I f BN SF is correc t , i t s notice of
appea l was timely

beca use it was filed w ithin 30 day s of J une 6, 2012. ¶ 24 BN SF’s contention in this reg ard is belied by the rec ord. BN SF’s reque st f or a remittitur to

acc ount for disability p ay ments rec eived by Wil liams was, like all of the other arguments advanc ed by BN SF in its posttrial motion, reje cted by the trial court as part of its oral ruling

on April 18, 2012. Specifica lly
, the trial court stated, “The post-trial motions that have been filed are respe ctfully denied, with the exception of the taxation issue which I will take under advisement.” BN SF’s “eme rg ency” motion reg arding the remittitur issue was not filed until May 31, 2012, more than 30 day s afte r the denial of its posttrial motion. There fore
, the trial
court no l o n g er had jurisdiction to rec onsider its prior ruling on remittitur relating to the disability annuity

. Be cause the 30 day s had alre ady run, the trial court could not reve st itself with jurisdiction by stating at the J une 1, 2012, hearing o n BNSF’s motion that it was appropr iate for

BN SF to bringnew c ase la w to the cour

t’s attention. ¶ 25 Finally
, the fac t that the trial court did not issue a written order denying the posttrial motions does not m ak e t h e o ra l ruling of April 18 any less final. I llinois Supreme Court Rule 272 provides that if, at the time of announcing final judgme nt, the judge require s the submissi on of a written order or if a circ uit court rule require s the preva iling party to submit a draf t order
, the judgme nt is not final until the signe d judgme nt is filed. I ll. S. Ct. R. 272 (ef f. Nov. 1, 1990). Howeve r, Rule 272 further provides that if no such signe d judgme nt is to be filed, the judgme nt is entered at the time it is enter ed of r ecord. ¶ 26 On April 18, the trial court unequivoca lly ruled that the posttrial motions wer e 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 ref ere nce to a written order reg arding the posttrial motions and did not ask the parties to prepa re such an order

. At the J une 1 hearing, the trial
court ag ain stated that it hoped to issue a written order on the setoff issue but if not, it would issue an ora l ruling on that issue. ¶ 27 At the close of the J une 6, 2012, hearing, the trial court instructed the p ar t i es t o p re pare a draf t order
, but the court made clea r that the order related only to the remittitur for disability

-6-pay ments and the se toff for

future tax es. More over, when counsel for W illiams brought to the trial court’s attention his belief that BN SF was trying to make J une 6 the opera tive date for purposes of filing a notice of appea l, the court allowed the chang es to the order limit ing the ruling to two issues to stand. Thus, the only written order in the rec ord specific ally limit s the ruling to the disability annuity issue (which, as noted, was no longe r proper ly befor e the court) and the setoff iss u e. Gi v en t h at the trial court never require d the submissi on of a written order reg arding the denial of BN SF’s posttrial motion, the oral ruling on that motion was ther efor e fina l on April 18, 2012, the date it wa s entere d into the rec ord. ¶ 28 We agree with the assessment by Wil liams’ counsel t h at BN SF was attempting to cre ate

uncer tainty as to the finality of the April 18 ruling when it stated in its emer g ency motion that “[a]t th e co n cl u s i on of oral argument, the Court rese rved written ruling on all post-trial motions.” This statement is not supp o rt ed b y t h e rec ord. In the event that any uncer tainty

rema ined afte r the April 18 ruling
, despit e t h e trial court’s unequivoca l statement that BN SF’s motion was denied with the exception of the setoff issue, it was incumbent on BN SF
to seek clar ification within 30 day s of the court’s ruling

. See Hernande z v. Pritikin
, 2012 I L 113054, ¶ 41 (noting that it is the m ovant’s responsibili ty to obtain a ruli n g o n his motion if he is to avoid forfeiture on appea l). Be cause BN SF did not file a notice of appe al within 30 day s of the trial c ourt’s denia l of all posttrial motions seekingrelief within the scope of section 2-1202, this court lac ks jurisdiction to hear this appea l. ¶ 29 For

the re asons stated he rein, this appea l is dism issed for lac k of jurisdiction.

¶ 30 Appea l dismi ssed.

-7-