tz-i to iv.pdf

A ROADMAP TO THEJURISDICTIONAL TWILIGHT ZONE:

Illinois Civil ProcedureBetween Trial and Appeal

Parts I through IV

Timothy J. Storm

Timothy J. StormStorm Law OfficeSuite 200777 Lake Zurich RoadBarrington, Illinois [email protected]

mailto:[email protected]

Disclaimers

This publication is for informational purposes only and is not legal advice. The informationcontained in this publication is not intended to create, and receipt of it does not constitute,an attorney-client relationship. Recipients should not act upon any information containedin this publication without seeking counsel from a licensed attorney.

The information presented in this publication may not reflect the most current legaldevelopments. The author makes no warranties, representations, or claims of any kindconcerning the information presented in this publication. The information may bewithdrawn, changed, improved, or updated at any time without notice. The author is notliable for damages arising from use of this publication under any circumstances.

© 2014 - Timothy J. Storm

A ROADMAP TO THE JURISDICTIONAL TWILIGHT ZONE:Illinois Civil Procedure Between Trial and Appeal

Timothy J. Storm

I. Motions in Jury Cases

A. Post-Trial (Renewed) Motion for Directed Verdict [735 ILCS 5/2-1202(a) and (b)]

B. Motion for Judgment Notwithstanding the Verdict (JNOV) [735 ILCS 5/2-1202(b)]

C. Motion for New Trial [735 ILCS 5/2-1202(b)]

D. Motion in Arrest of Judgment [735 ILCS 5/2-1202(b)]

E. Motion for Remittitur or Apportionment of Punitive Damages [735 ILCS 5/2-1207]

II. Motions in Non-Jury Cases

A. Motion for Rehearing [735 ILCS 5/2-1203]

B. Motion for New Trial [735 ILCS 5/2-1203]

C. Motion to Modify Judgment [735 ILCS 5/2-1203]

D. Motion to Vacate Judgment [735 ILCS 5/2-1203]

III. Motions in Jury or Non-Jury Cases

A. Motion for Jury to Assess Damages [735 ILCS 5/2-1206]

B. Motions for Reduction in the Amount of the Recovery [735 ILCS 5/2-1205]

IV. Motions for Stay

A. Motion for Stay [735 ILCS 5/2-1305]

B. Motion for Stay Pending Appeal [Illinois Supreme Court Rule 305]

A ROADMAP TO THE JURISDICTIONAL TWILIGHT ZONE:Illinois Civil Procedure Between Trial and Appeal

I. Motions in Jury Cases

A post-trial motion attacks the outcome of the trial and is filed after the return of the

verdict and before an appeal. Such motions may be, and often are, filed in cases tried to a

jury as well as those tried to the bench. The role of the post-trial motion in jury cases is

particularly significant because a ground of objection must usually be included in a post-

trial motion as a prerequisite to raising that ground as a basis for reversal or other relief on

appeal.

A post-trial motion serves three purposes: (1) it allows the trial judge, the decision-

maker who is most familiar with the events of the trial, to review his or her decisions

without the pressure of an ongoing trial; (2) by requiring a statement of the specific grounds

supporting the claim of error, the reviewing court can ascertain from the record whether

the trial court was afforded an adequate opportunity to reassess the allegedly erroneous

ruling(s); and (3) by requiring the litigants to state the specific grounds in support of their

contentions, it prevents them from stating mere general objections and subsequently

raising on appeal arguments that the trial judge never had an opportunity to consider.

Garcia v. Seneca Nursing Home, 2011 IL App (1st) 103085 ¶25.

Under 735 ILCS 5/2-1202, a “post-trial motion must contain the points relied upon,

particularly specifying the grounds in support thereof, and must state the relief desired.”

To satisfy that requirement, the party moving for a post-trial remedy in a jury case must

state the grounds upon which relief is requested with sufficient particularity to allow the

trial court to identify the error. Lyon Metal Products, LLC v. Protection Mutual Ins. Co.,

321 Ill. App. 3d 330, 339-340 (2nd Dist. 2001).

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ILLINOIS CIVIL PROCEDURE BETWEEN TRIAL AND APPEAL

Issues that are not raised at trial may not be raised for the first time in the post-trial

motion. Thornton v. Garcini, 237 Ill. 2d 100, 112 (2010). Further, issues that are not

included in a post-trial motion after a jury trial are forfeited on appeal. Ill. Sup. Ct. R.

366(b)(2)(iii) (“A party may not urge as error on review of the ruling on the party’s

post-trial motion any point, ground, or relief not specified in the motion.”).

A party must incorporate all of its post-trial requests for relief into a single post-trial

motion. 735 ILCS 5/2-1202(b). The moving party may ask for relief in the alternative, or for

relief conditioned upon the denial of other relief requested. 735 ILCS 5/2-1202(b). If a party

seeks relief on multiple grounds in a post-trial motion, the court must rule on all of the

relief sought. 735 ILCS 5/2-1202(f). Even if the ruling on a portion of the post-trial motion

renders any further decisions unnecessary, the trial court must nonetheless enter a

conditional ruling on all of the remaining relief sought for purposes of facilitating appellate

review. 735 ILCS 5/2-1202(f).

Successive post-trial motions are generally prohibited, as provided in Illinois

Supreme Court Rule 274, which states in pertinent part: “A party may make only one

postjudgment motion directed at a judgment order that is otherwise final. If a final

judgment order is modified pursuant to a postjudgment motion, or if a different final

judgment or order is subsequently entered, any party affected by the order may make one

postjudgment motion directed at the superseding judgment or order. Until disposed, each

timely postjudgment motion shall toll the finality and appealability of the judgment or

order at which it is directed.” See also DLJ Mortgage Capital, Inc. v. Mason, 2012 IL App

(1st) 103794-U ¶¶31-33.

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There are two narrow exceptions to the rule against successive post-trial motions.

First, when new or additional relief is granted against a party for the first time in an order

disposing of a timely-filed post-trial motion, the party affected may file its own post-trial

motion. Ill. Sup. Ct. R. 274; 735 ILCS 5/2-1202(c). See also In re Marriage of Viehman, 91

Ill. App. 3d 315, 318 (5th Dist. 1980). Such motions must be filed within 30 days after

judgment on the post-trial motion is entered, or within a timely extension allowed by the

court. 735 ILCS 5/2-1202(c).

In addition, some courts have recognized that when new matter is presented that

renders the judgment improper and such new matter could not have been included as a

basis for the first post-trial motion, a successive post-trial motion will be allowed. See

Slavick v. Michael Reese Hospital and Medical Center, 92 Ill. App. 3d 161, 165 (1st Dist.

1980). However, the continuing viability of the “new matter” exception is questionable in

light of the flat prohibition on successive post-trial motions set forth in Rule 274, which

become effective on January 1, 2006.

The trial court has no jurisdiction to entertain a post-trial motion that is not timely

filed. Lowenthal v. McDonald, 367 Ill. App. 3d 919, 922 (2d Dist. 2006). If a party does not

obtain an extension and 30 days are allowed to pass after the judgment is entered, then the

trial court no longer has jurisdiction to allow an extension of time. 735 ILCS 5/2-1202(c)

(“Post-trial motions must be filed within 30 days after the entry of judgment or the

discharge of the jury, if no verdict is reached, or within any further time the court

may allow within the 30 days or any extensions thereof.” (emphasis added)). See

also Manning v. City of Chicago, 407 Ill. App. 3d 849, 854 (1st Dist. 2011).

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A timely post-trial motion stays the judgment and tolls the time to appeal. Ill. Sup.

Ct. R. 303(a)(1). Any party has 30 days after the resolution of the last timely-filed post-trial

motion within which to file an appeal. Ill. Sup Ct. R. 303(a)(1). Failure to file a notice of

appeal within 30 days after the final judgment or within 30 days after the entry of an order

disposing of the last timely-filed post-trial motion deprives the appellate court of

jurisdiction over the appeal. Coleman v. Akpakpan, 402 Ill. App. 3d 822, 824 (1st Dist.

2010).

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A. Post-Trial (Renewed) Motion for Directed Verdict

1. Statutory/ rule authority

735 ILCS 5/2-1202(a):

If at the close of the evidence, and before the case is submittedto the jury, any party moves for a directed verdict the court may(1) grant the motion or (2) deny the motion or reserve its rulingthereon and submit the case to the jury. If the court denies themotion or reserves its ruling thereon, the motion is waivedunless the request is renewed in the post-trial motion.

735 ILCS 5/2-1202(b):

Relief desired after trial in jury cases, heretofore sought byreserved motions for directed verdict or motions for judgmentnotwithstanding the verdict, in arrest of judgment or for newtrial, must be sought in a single post-trial motion. Relief aftertrial may include the entry of judgment if under the evidence inthe case it would have been the duty of the court to direct averdict without submitting the case to the jury, even though nomotion for directed verdict was made or if made was denied orruling thereon reserved. The post-trial motion must contain thepoints relied upon, particularly specifying the grounds insupport thereof, and must state the relief desired, as forexample, the entry of a judgment, the granting of a new trial orother appropriate relief. Relief sought in post-trial motions maybe in the alternative or may be conditioned upon the denial ofother relief asked in preference thereto, as for example, a newtrial may be requested in the event a request for judgment isdenied.

2. Purpose

The court should grant a directed verdict for the defendant when the plaintiff fails

to establish a prima facie case. Grunstad v. Cooper, 2012 IL App (3d) 120524 ¶25. A

directed verdict is also appropriate where some evidence exists on every essential element

of the cause of action, but that evidence loses its significance when viewed in the context of

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all of the evidence. Caruso v. M & O Insulation Co., 345 Ill. App. 3d 345, 348 (4th Dist.

2003).

3. Time for filing

The motion must be filed within 30 days after the entry of judgment or the discharge

of the jury if no verdict is reached, or within any extension of time granted by the trial court

within the original 30-day period. McDonald v. Health Care Service Corp., 2012 IL App

(2d) 110779 ¶21.

4. Prerequisites

Any error in denying a motion for directed verdict at the close of the plaintiff's case

is waived by the subsequent introduction of evidence, unless the motion is renewed after

all of the evidence is heard. 735 ILCS 5/2-1202(a); Moller v. Lipov, 368 Ill. App. 3d 333,

346 (1st Dist. 2006). A renewed motion for a directed verdict must be in writing and an oral

motion is not sufficient to preserve the issues for review. Stackhouse v. Royce Realty &

Management Corp., 2012 IL App (2d) 110602 ¶15.

5. Standard of decision

A motion for a directed verdict is properly granted only where all of the evidence,

viewed in the light most favorable to the nonmoving party, so overwhelmingly favors the

movant that no contrary verdict could ever stand. Hye Ra Han v. Holloway, 408 Ill. App.

3d 387, 390-91 (1st Dist. 2011). A court requires more conclusive evidence to justify a

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directed verdict than to grant a new trial. Cummings v. Jha, 394 Ill. App. 3d 439, 451 (5th

Dist. 2009). If reasonable minds could draw different inferences from the circumstances,

then the court should deny a motion for directed verdict. Northern Trust Co. v. Burandt

& Armbrust, LLP, 403 Ill. App. 3d 260, 281 (2d Dist. 2010).

Illinois courts do not follow the “scintilla of evidence” rule, which holds that a case

must go to the jury if there is even a scintilla of evidence to support the non-movant’s case.

Williams v. Chicago Osteopathic Health Systems, 274 Ill. App. 3d 1039, 1047 n. 3 (1st Dist.

1995). On the contrary, only a scintilla of evidence is not sufficient to defeat a motion for

directed verdict. Thornhill v. Midwest Physician Center of Orland Park, 337 Ill. App. 3d

1034, 1042 (1st Dist. 2003).

6. Standard of review

The appellate court reviews the trial court’s ruling on a motion for directed verdict

de novo. Solis v. BASF Corp., 2012 IL App (1st) 110875 ¶26.

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B. Motion for Judgment Notwithstanding the Verdict (JNOV)


735 ILCS 5/2-1202(b):


2. Purpose

A motion for judgment notwithstanding the verdict asks the court to set aside the

jury’s verdict and enter judgment in favor of the movant. Pempek v. Silliker Laboratories,

Inc., 309 Ill. App. 3d 972, 982 (1st Dist. 1999). The motion asserts that the evidence is

legally insufficient to support the jury’s verdict and a judgment on that verdict. Smith v.

Marvin, 377 Ill. App. 3d 562, 568 (3rd Dist. 2007).

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3. Time for filing

The motion must be filed within 30 days after the entry of judgment or within any

extension of time that the trial court timely grants. 735 ILCS 5/2-1202(c).

4. Prerequisites

A motion for judgment notwithstanding the verdict must be in writing; an oral

motion is not sufficient to preserve the issues for review. Stackhouse v. Royce Realty &

Management Corp., 2012 IL App (2d) 110602 ¶15. A motion for judgment notwithstanding

the verdict is appropriate even when the moving party did not seek a directed verdict during

trial. Townshend v. Fassbinder, 372 Ill. App. 3d 890, 900 (2d Dist. 2007).


The standard for entry of a judgment notwithstanding the verdict is high. Barber v.

G. J. Partners, Inc., 2012 IL App (4th) 110992 ¶16. A motion for JNOV should be granted

only when all of the evidence, when viewed in its aspect most favorable to the opponent, so

overwhelmingly favors the movant that no contrary verdict based on that evidence could

ever stand. Choate v. Indiana Harbor Belt R. Co., 2012 IL 112948 ¶21. A judgment

notwithstanding the verdict is inappropriate where there is a substantial factual dispute or

where credibility may be decisive. DiCosolo v. Janssen Pharmaceuticals, Inc., 2011 IL App

(1st) 093562 ¶14.

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The ruling on a JNOV motion is reviewed de novo. Lawlor v. North American Corp.

of Illinois, 2012 IL 112530 ¶37.

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C. Motion for New Trial


735 ILCS 5/2-1202(b)1:


2. Purpose

A motion for a new trial allows the trial judge an opportunity to correct errors that

the judge or jury made during trial. Chicago Motor Club v. Robinson, 316 Ill. App. 3d 1163,

1169-70 (1st Dist. 2000).

3. Time for filing

The motion must be filed within 30 days after the entry of judgment or within any

extension of time granted by the trial court within the original or extended period. 735 ILCS

1 Motions for a new trial in non-jury cases are governed by 735 ILCS 5/2-1203.

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5/2-1202(c). The 30-day period begins running upon the entry of a final and appealable

judgment. McDonald v. Health Care Service Corp., 2012 IL App (2d) 110779 ¶21. But see

Pempek v. Silliker Laboratories, Inc., 309 Ill. App. 3d 972, 981 (1st Dist. 1999) (A

postjudgment motion directed against an unappealable final judgment must be filed within

30 days of that judgment.).

4. Prerequisites

A motion for a new trial must be in writing; an oral motion is not sufficient to

preserve issues for review. Stackhouse v. Royce Realty & Management Corp., 2012 IL App

(2d) 110602 ¶15.


Substantial deference must be given to the jury, which has weighed the testimony

and credibility of witnesses. Anderson v. Anderson, 2011 IL App (1st) 110034 ¶52. The court

should grant a new trial only when the verdict is contrary to the manifest weight of the

evidence, a standard that is met only when a conclusion opposite of the verdict is clearly

evident or when the jury’s findings prove to be unreasonable, arbitrary, and not based upon

any of the evidence. Balough v. Northeast Illinois Regional Commuter R.R. Corp., 409 Ill.

App. 3d 750, 774 (1st Dist. 2011).

In determining whether to grant a new trial, the court may not re-weigh the

evidence. Ford v. Grizzle, 398 Ill. App. 3d 639, 650 (5th Dist. 2010). A verdict will not be

set aside merely because the jury could have drawn different inferences and reached a

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different conclusion or because the court believes that a different result is more reasonable.

Redmond v. Socha, 216 Ill. 2d 622, 652 (2005).


The trial court’s ruling on a motion for a new trial will be reversed only when the

court has abused its discretion. Klingelhoets v. Charlton-Perrin, 2013 IL App (1st) 112412

¶26. The grant of a new trial following a post-trial motion is not a final judgment that can

be immediately appealed as of right (Winters v. Kline, 344 Ill. App. 3d 919, 928 (1st Dist.

2003)), but such an order is appealable by petition to the appellate court pursuant to

Illinois Supreme Court Rule 306(a)(1).

7. Discussion

Illinois law does not guarantee a right to a perfect trial. Downey v. Dunnington, 384

Ill. App. 3d 350, 389 (4th Dist. 2008). Parties are, however, entitled to a fair trial. Wilbourn

v. Cavalenes, 398 Ill. App. 3d 837, 855 (1st Dist. 2010). Thus, the trial court should grant

a new trial only as a result of an occurrence of such character and magnitude that it

seriously prejudices a party’s right to a fair trial. Williams v. Sebert Landscape Co., 407 Ill.

App. 3d 753, 756 (1st Dist. 2011).

A party who fails to timely move for a new trial waives the right to apply later for a

new trial. 735 ILCS 5/2-1202(e). Failure to raise claims of error before the trial court denies

the court the opportunity to correct the error immediately and grant a new trial if one is

warranted. People v. Whalum, 2012 IL App (1st) 110959 ¶21. Questions not presented to

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the court during the course of the trial may not be raised for the first time in a post-trial

motion for a new trial. Angelini v. Snow, 58 Ill. App. 3d 116, 118 (1st Dist. 1978).

Motions for a new trial based on newly-discovered evidence are allowed but are not

looked upon favorably and should be subject to the closest scrutiny. People v. Ortiz, 385 Ill.

App. 3d 1, 10 (1st Dist. 2008). To justify granting a new trial based on newly-discovered

evidence, the party seeking the new trial must establish that: (1) the evidence was

discovered after the trial; (2) the evidence could not have been discovered before trial

despite the exercise of due diligence; (3) the newly discovered evidence is material to the

issues and is not merely cumulative of evidence offered at trial; and (4) the newly

discovered evidence is of such conclusive character that it will probably change the result

of a new trial if granted. People v. Patterson, 192 Ill. 2d 93, 124 (2000).

The court may grant a new trial limited to the issue of damages if it determines that

the verdict on the question of liability was proper, but that the damage award was either

inadequate or excessive. Gaylor v. Campion, Curran, Rausch, Gummerson and Dunlop,

P.C., 2012 IL App (2d) 110718 ¶60. A new trial limited to the issue of damages is

appropriate only if certain conditions are satisfied: (1) the jury verdict on liability must be

amply supported by the evidence; (2) the questions of damages and liability must be

sufficiently distinct that limiting a new trial to damages is not unfair to one of the parties;

(3) the damages must not appear to be the result of a compromise on the question of

liability. Gaylor v. Campion, Curran, Rausch, Gummerson and Dunlop, P.C., 2012 IL App

(2d) 110718 ¶60.

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As an alternative to granting a new trial when damages are inadequate, the court may

grant an additur. Dobyns v. Chung, 399 Ill. App. 3d 272, 286 (5th Dist. 2010). Courts order

additur sparingly and only in clear cases. J. I. Case Co. v. McCartin-McAuliffe Plumbing

& Heating, Inc., 118 Ill. 2d 447, 456 (1987). Illinois courts typically limit additur to

correcting the omission of liquidated or easily calculated items of damages. Poliszczuk v.

Winkler, 387 Ill. App. 3d 474, 497 (1st Dist. 2008). The court may enter an additur only

when the defendant consents as an alternative to a new trial. Dobyns v. Chung, 399 Ill. App.

3d 272, 286 (5th Dist. 2010).

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D. Motion in Arrest of Judgment


735 ILCS 5/2-1202(b):


735 ILCS 5/2-1204:

If judgment is arrested pursuant to post-trial motion for anydefect in the record, the plaintiff need not commence his or heraction anew. If appropriate, the court shall order newpleadings.

2. Purpose

The trial court should grant a motion in arrest of judgment when the common law

record is inadequate to support the judgment. In re Munzer, 28 Ill. App. 3d 792, 795 (1st

Dist. 1975). An arrest of judgment is proper when a court rules upon the sufficiency of a

plaintiff’s complaint after the entry of a judgment in a plaintiff’s favor. Rhodes v. Uniroyal,

Inc., 101 Ill. App. 3d 328, 331 (3d Dist. 1981).

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3. Time for filing

A motion in arrest of judgment must be filed within 30 days after the entry of

judgment. In re Munzer, 28 Ill. App. 3d 792, 795 (1st Dist. 1975).

4. Prerequisites

A motion in arrest of judgment must be in writing and an oral motion is insufficient

to preserve issues for review. Stackhouse v. Royce Realty & Management Corp., 2012 IL

App (2d) 110602 ¶15.


A motion to arrest judgment should be granted where an error or defect is apparent

on the face of the record or in some matter which properly should have appeared of record

but did not. Bartlett Bank & Trust Co. v. McJunkins, 147 Ill. App. 3d 52, 60 (1st Dist. 1986).

If, at the conclusion of a trial, it becomes apparent that the complaint, on its face, fails to

state a cause of action, then arrest of judgment should be granted. Smithers v. Henriquez,

368 Ill. 588, 598 (1938).


Case law suggests that the standard of review for an order granting an arrest of

judgment is de novo. See Rhodes v. Uniroyal, Inc., 101 Ill. App. 3d 328, 331 (3d Dist. 1981)

(“It is our opinion that the standard of review for either an arrest of judgment or a judgment

notwithstanding the verdict would not differ[.]”); Lawlor v. North American Corp. of

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Illinois, 2012 IL 112530 ¶37 (The ruling on a motion for judgment notwithstanding the

verdict is reviewed de novo.).

7. Discussion

A motion in arrest of judgment is limited to errors that appear on the face of the

record; a court may not consider the evidence or instructions when ruling on the motion.

Scott v. Freeport Motor Cas. Co. of Freeport, 392 Ill. 332, 339 (1945).

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E. Motion for Remittitur or Apportionment of Punitive Damages


735 ILCS 5/2-1207:

The trial court may, in its discretion, with respect to punitivedamages, determine whether a jury award for punitive damagesis excessive, and if so, enter a remittitur and a conditional newtrial.

The trial court may also in its discretion, apportion the punitivedamage award among the plaintiff, the plaintiff's attorney andthe State of Illinois Department of Human Services. Theamount of the award paid from the punitive damages to theplaintiff's attorney shall be reasonable and without regard toany contingent fee contract, except that such amount shall notexceed the amount authorized by the contingent fee contract.In apportioning punitive damages as provided in this Section,the court shall consider, among other factors it deems relevant,whether any special duty was owed by the defendant to theplaintiff.

2. Purpose

The purpose of a remittitur is to correct an excessive jury verdict in limited and

appropriate circumstances. Estate of Oglesby v. Berg, 408 Ill. App. 3d 655, 661 (1st Dist.

2011). Under that procedure, the plaintiff agrees to relinquish the portion of the award

deemed to be excessive and accept a reasonable sum, determined by the court, so as to avoid

a new trial. Haid v. Tingle, 219 Ill. App. 3d 406, 410 (1st Dist. 1991).

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3. Time for filing

A post-trial request for remittitur is an alternative to a motion for new trial and must

be filed within 30 days after entry of judgment, while the circuit court retains jurisdiction

to entertain it. Matich v. Gerdes, 193 Ill. App. 3d 859, 870-71 (4th Dist. 1990).

4. Prerequisites

After a jury trial, the court must obtain the plaintiff’s consent before ordering a

remittitur. Carter v. Kirk, 256 Ill. App. 3d 938, 948 (1st Dist. 1993). The plaintiff’s refusal

to accept the remittitur will result in an order for a new trial. Bauer ex rel. Bauer v.

Memorial Hosp., 377 Ill. App. 3d 895, 924 (5th Dist. 2007).


The trier of fact determines the amount of damages and the court will give great

deference to a jury’s damage award. Clarke v. Medley Moving & Storage, Inc., 381 Ill. App.

3d 82, 96 (1st Dist. 2008). A court will not interfere with a jury verdict unless it is so

excessive that it indicates that the jury was moved by passion or prejudice or the verdict

exceeds the necessarily flexible limits of fair and reasonable compensation or it is so large

that it shocks the judicial conscience. Diaz v. Legat Architects, Inc., 397 Ill. App. 3d 13, 47

(1st Dist. 2009). Where the jury’s verdict falls within the flexible range of conclusions

reasonably supported by the evidence, the court will not grant a remittitur. Estate of

Oglesby v. Berg, 408 Ill. App. 3d 655, 661 (1st Dist. 2011).

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A trial court’s ruling on remittitur is reviewed for abuse of discretion. Slovinski v.

Elliot, 237 Ill. 2d 51, 58 (2010).

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II. Motions in Non-Jury Cases

In a non-jury civil trial, if alleged errors are properly brought to the trial court’s

attention, a post-trial motion is not necessary to preserve the alleged errors for review. In

re E.M., 262 Ill. App. 3d 302, 306 (2d Dist. 1994). If a party chooses to file such a motion,

neither the Code of Civil Procedure nor the supreme court rules demand any particular level

of specificity in cases decided without a jury. Post-judgment motions in non-jury cases

differ in this regard from their counterparts after jury trials, which must specify grounds

for relief set forth in 735 ILCS 5/2-1202(b). However, for a motion in a non-jury case to

qualify as a post-trial motion that will toll the period within which to file the notice of

appeal, one or more of the types of relief specified in the statute must be specifically

requested. Shutkas Elec., Inc. v. Ford Motor Co., 366 Ill. App. 3d 76, 83-83 (1st Dist. 2006).

Successive post-trial motions generally are prohibited in non-jury cases. Sears v.

Sears, 85 Ill. 2d 253, 259 (1981). A narrow exception to this rule has been recognized,

however, when new or additional relief is granted against a party for the first time in an

order disposing of a timely filed post-judgment motion. In re Marriage of Viehman, 91 Ill.

App. 3d 315, 318 (5th Dist. 1980). Otherwise, a successive post-judgment motion must

satisfy the requirements of 735 ILCS 5/2-1401 by presenting new matter that would render

the judgment improper and that could not have been included as a basis for the first

post-judgment motion. Slavick v. Michael Reese Hospital and Medical Center, 92 Ill. App.

3d 161, 165 (1st Dist. 1980).

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A. Motion for Rehearing


735 ILCS 5/2-1203:

(a) In all cases tried without a jury, any party may, within 30days after the entry of the judgment or within any further timethe court may allow within the 30 days or any extensionsthereof, file a motion for a rehearing, or a retrial, ormodification of the judgment or to vacate the judgment or forother relief.

(b) Except as provided in subsection (a) of Section 413 of theIllinois Marriage and Dissolution of Marriage Act, a motionfiled in apt time stays enforcement of the judgment except thata judgment granting injunctive or declaratory relief shall bestayed only by a court order that follows a separate applicationthat sets forth just cause for staying the enforcement.

2. Purpose

The purpose of a motion to reconsider is to bring to the court’s attention newly

discovered evidence, changes in the law, or errors in the court’s previous application of the

existing law. Direct Auto Ins. Co. v. Beltran, 2013 IL App (1st) 121128 ¶71.

3. Time for filing

A motion for rehearing must be filed within 30 days after the entry of judgment or

within any further time the trial court may allow within the 30 days or extensions of that

period. 735 ILCS 5/2-1203. A proper and timely-filed post-judgment motion stays

enforcement of the judgment. 735 ILCS 5/2-1203(b). The requirement that a motion to

reconsider be filed within 30 days after entry of judgment does not also require that a

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hearing date be set or that the judge rule on a motion within 30 days of entry of judgment

for court to retain jurisdiction. Yang v. Chen, 283 Ill. App. 3d 80, 84 (1st Dist. 1996).

4. Prerequisites

A motion for rehearing may be brought with respect to any final orders as well as

judgments. Cable America, Inc. v. Pace Electronics, Inc., 396 Ill. App. 3d 15, 24 (1st Dist.

2009).

A reconsideration motion may bring to a court’s attention: (1) newly discovered

evidence; (2) changes in the law; or (3) errors in the court’s previous application of existing

law, but it does not properly raise a new legal theory or factual argument. River Plaza

Homeowner’s Ass’n v. Healey, 389 Ill. App. 3d 268, 280 (1st Dist. 2009). “Newly

discovered evidence” is evidence that was not available prior to the hearing. Direct Auto Ins.

Co. v. Beltran, 2013 IL App (1st) 121128 ¶71. In the absence of a reasonable explanation

regarding why the evidence was not available at the time of the original hearing, the circuit

court is under no obligation to consider it. Emrikson v. Morfin, 2012 IL App (1st) 111687

¶ 30.


Rehearing is warranted when newly discovered evidence is sufficiently conclusive or

decisive in character to make it probable that the trial court would have reached a different

result. Hart v. Valspar Corp., 252 Ill. App. 3d 1005, 1009 (1st Dist. 1993). The court’s

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misapprehension of law is clearly a sufficient ground to support a motion for rehearing.

People ex rel., Valle v. Valle, 113 Ill. App. 3d 682, 685 (1st Dist. 1983).


The standard of review for a motion filed under 735 ILCS 5/2-1203 is whether the

trial court abused its discretion and whether substantial justice between the parties was

done. In re Application of the County Treasurer, 292 Ill. App. 3d 310, 313 (2d Dist. 1997).

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B. Motion for New Trial


735 ILCS 5/2-12032:



2. Purpose

A motion for a new trial allows the trial judge an opportunity to correct errors that

he or she made during trial. Chicago Motor Club v. Robinson, 316 Ill. App. 3d 1163, 1169-70

(1st Dist. 2000).

3. Time for filing

A motion for retrial must be filed within 30 days after the entry of judgment or

within any further time the trial court may allow within the 30 days or extensions of that

period. 735 ILCS 5/2-1203. A proper and timely-filed motion stays enforcement of the

judgment and the time to appeal. 735 ILCS 5/2-1203(b).

2 Motions for a new trial in jury cases are governed by 735 ILCS 5/2-1202(b).

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4. Prerequisites

Neither the Code of Civil Procedure nor the supreme court rules demand any

specificity in postjudgment motions in cases decided without a jury, except that the motion

must specifically request a new trial when the party seeks a retrial.


A new trial should be granted after a bench trial if the trial judge commits legal error

that is not harmless. In re Jovan A., 2013 IL App (1st) 103835 ¶43.


The grant of a new trial following the filing of a post-trial motion is not a final

judgment (Winters v. Kline, 344 Ill. App. 3d 919, 928 (1st Dist. 2003)) and therefore it is

not immediately appealable as of right. However, an order granting a new trial may be

appealed by permission pursuant to Illinois Supreme Court Rule 306(a)(1). The appellate

court applies an abuse of discretion standard of review in considering a trial court’s ruling

on a motion for a new trial. Unitrin Preferred Insurance Co. v. Dobra, 2013 IL App (1st)

121364 ¶17.

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C. Motion to Modify Judgment


735 ILCS 5/2-1203:



2. Purpose

A motion for modification under §2-1203 allows the court to modify a judgment

within 30 days after the judgment is entered, but that section does not govern motions filed

after a decision has been made but before judgment has been filed. Melrose Park National

Bank v. Carr, 249 Ill. App. 3d 9, 19 (1st Dist. 1993).

3. Time for filing

A motion to modify judgment must be filed within 30 days after the entry of

judgment or within any further time the trial court may allow within the 30 days or

extensions of that period. 735 ILCS 5/2-1203. A proper and timely-filed postjudgment

motion stays enforcement of the judgment. 735 ILCS 5/2-1203(b).

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4. Prerequisites

Neither the Code of Civil Procedure nor the supreme court rules demand any

specificity in postjudgment motions in cases decided without a jury, except that a motion

to modify the judgment must specifically request that the court modify the judgment.


The trial court may reconsider a decision and modify its judgment on the same basis

on which it could have originally entered a judgment as long as a party brings a motion

under §2-1203 within the 30-day period when the court retains jurisdiction after it enters

judgment. See Burnidge Corp. v. Stelford, 309 Ill. App. 3d 576, 579 (2d Dist. 2000).


On review of a trial court’s order modifying a final judgment, the appellate court

determines whether the trial court abused its discretion and whether, regarding that order,

substantial justice is being done between the parties. In re Marriage of Sutherland, 251 Ill.

App. 3d 411, 414 (2d Dist. 1993).

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D. Motion to Vacate Judgment


735 ILCS 5/2-1203:



2. Purpose

The purpose of a motion to vacate a judgment under §2-1203 is to alert the trial court

to errors it has committed and to afford it an opportunity to correct those errors. Steiner

v. Eckert, 2013 IL App (2d) 121290 ¶16.

3. Time for filing

A motion to vacate judgment must be filed within 30 days after the entry of

judgment or within any further time the trial court may allow within the original 30 days

or extensions of that period. 735 ILCS 5/2-1203. A proper and timely filed postjudgment

motion stays enforcement of the judgment. 735 ILCS 5/2-1203(b).

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4. Prerequisites

The party seeking to have the judgment vacated bears the burden of proving any

necessary supporting facts. Gotham Lofts Condominium Association v. Kaider, 2013 IL

App (1st) 120400 ¶14.


The trial court may act to correct any error which it perceives must be remedied in

order to do justice between the parties. In re Marriage of Stuart, 141 Ill. App. 3d 314, 317

(5th Dist. 1986). Newly discovered evidence is one basis, but not the only basis, upon which

a court may vacate a judgment pursuant to §2-1203. In re Marriage of Stuart, 141 Ill. App.

3d 314, 317 (5th Dist. 1986).


A motion to vacate under §2-1203 invokes the sound discretion of the trial court and

the reviewing court will not disturb the court’s ruling absent an abuse of that discretion.

Higgens v. House, 288 Ill. App. 3d 543, 546 (4th Dist. 1997).

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III. Motions in Jury or Non-Jury Cases

A. Motion for Jury to Assess Damages


735 ILCS 5/2-1206:

(a) Upon default, when the damages are to be assessed, thecourt may hear the evidence and assess the damages without ajury for that purpose. If interlocutory judgment is entered in anaction brought upon a penal bond, or upon any instrument inwriting, for the payment of money only, and the damages restin computation, the court may refer the matter to the clerk, toassess and report the damages, and may enter judgmenttherefor. However, either party may have the damages assessedby a jury.

(b) Unless a jury has been waived, the trial court shall empanela jury to assess damages: (1) if the ruling on a post-trial motionis in favor of a party entitled to recover damages and there is noverdict assessing his or her damages; or (2) the reviewing courtremands solely for the purpose of assessing damages.

2. Purpose

A default judgment includes two factors: (1) a finding of the issues for the plaintiff;

and (2) an assessment of damages. Wilson v. TelOptic Cable Construction Co., 314 Ill. App.

3d 107, 112 (1st Dist. 2000). An order granting a default is not final and appealable until the

court assesses damages. Tavros Technology Services, Inc. v. Hamilton Williams LLC, 2011

WL 10069503 at *6 (1st Dist. 2011) (Rule 23 order). Under §1206(a), even a party held in

default has a right to have the issue of damages tried by a jury because a judgment for

unliquidated damages cannot be entered without establishing the fair amount of those

damages. Bickel v. Subway Development of Chicagoland, Inc., 354 Ill. App. 3d 1090, 1100

(5th Dist. 2004).

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Section 1206(b) also preserves the right to have a jury assess damages where: (1) the

ruling on a post-trial motion changes the outcome of the trial and thereby entitles a party

to an award of damages; or (2) a case is remanded to the trial court from a reviewing court

for the purpose of assessing damages. 735 ILCS 5/2-1206(b).

3. Time for filing

Under 1206(a), because an order granting a default is not final and appealable until

the court assesses damages, there is no 30-day clock running after entry of a default order.

See Tavros Technology Services, Inc. v. Hamilton Williams LLC, 2011 WL 10069503 at *6

(1st Dist. 2011) (Rule 23 order).

Under §1206(b)(1), in a claim involving a prayer for money damages and where a

post-trial motion results in an order that entitles a party to assessment of damages, the

circuit court retains jurisdiction because there is no final and appealable order until the

court enters an order that includes a judgment as to both liability and damages. See Smith

v. Smith, 240 Ill. App. 3d 776, 778-79 (1st Dist. 1992) (“Even where the finding in favor of

one party provides for a sum as damages and costs, the finding is not final and appealable

unless such finding was entered as a judgment against the opposing party.”).

Under §1206(b)(2), on remand from a reviewing court, the circuit court reacquires

jurisdiction of the case when the reviewing court issues its mandate. Ertl v. City of De Kalb,

2013 IL App (2d) 110199 ¶21. Therefore, any motion seeking to empanel a jury to assess

damages must await issuance of the mandate. See W.E. Erickson Const., Inc. v.

Congress-Kenilworth Corp., 132 Ill. App. 3d 260, 272 (1st Dist. 1985) (a circuit court’s

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actions in accordance with the appellate court’s judgment but before issuance of the

mandate is premature).

4. Prerequisites

Under §2-1206(a), “either party may have the damages assessed by a jury,”

suggesting that the party’s right to demand a jury is absolute, just as it is at the

commencement of a case in which a jury is available. See 735 ILCS 5/2-1105 and Bowman

v. American River Transp. Co., 217 Ill. 2d 75, 94-95 (2005). Likewise, §1206(b) provides

that the “trial court shall empanel a jury to assess damages” if the conditions set forth in

that section are satisfied.


Because the right to a jury provided under §2-1206 is absolute, the court has no

discretion to deny a timely jury demand under the statute in an appropriate case.


A jury’s award of damages will be reversed if it is against the manifest weight of the

evidence. N.W.I. Intern., Inc. v. Edgewood Bank, 291 Ill. App. 3d 247, 259 (1st Dist. 1997).

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B. Motions for Reduction in the Amount of the Recovery


735 ILCS 5/2-1205:

An amount equal to the sum of (i) 50% of the benefits providedfor lost wages or private or governmental disability incomeprograms, which have been paid, or which have becomepayable to the injured person by any other person, corporation,insurance company or fund in relation to a particular injury,and (ii) 100% of the benefits provided for medical charges,hospital charges, or nursing or caretaking charges, which havebeen paid, or which have become payable to the injured personby any other person, corporation, insurance company or fundin relation to a particular injury, shall be deducted from anyjudgment in an action to recover for that injury based on anallegation of negligence or other wrongful act, not includingintentional torts, on the part of a licensed hospital or physician;provided, however, that:

(1) Application is made within 30 days to reduce the judgment;

(2) Such reduction shall not apply to the extent that there is aright of recoupment through subrogation, trust agreement,lien, or otherwise;

(3) The reduction shall not reduce the judgment by more than50% of the total amount of the judgment entered on theverdict;

(4) The damages awarded shall be increased by the amount ofany insurance premiums or the direct costs paid by the plaintifffor such benefits in the 2 years prior to plaintiff's injury ordeath or to be paid by the plaintiff in the future for suchbenefits; and

(5) There shall be no reduction for charges paid for medicalexpenses which were directly attributable to the adjudgednegligent acts or omissions of the defendants found liable.

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2. Purpose

Section 2-1205 modifies the collateral source rule and eliminates certain duplicative

recoveries in the context of medical malpractice cases. See Burnier v. Burris, 113 Ill. 2d 219,

242 (1986). Under §2-1205, sums received from collateral sources may be considered to

reduce a judgment against a tortfeasor. See Burnier v. Burris, 113 Ill. 2d 219, 242 (1986).

3. Time for filing

A motion for reduction in the amount of recovery pursuant to §2-1205 must be filed

within 30 days after the judgment is entered. 735 ILCS 5/2-1205(1). In cases in which post-

trial motions are filed, a motion to reduce the judgment must be filed within 30 days after

judgment is entered, not 30 days after the court rules on the post-trial motions. Richter v.

Northwestern Memorial Hospital, 177 Ill. App. 3d 247, 258 (1st Dist. 1988).

4. Prerequisites

A deduction as provided by §2-1205 shall be made when the prerequisites listed in

that section are satisfied: (1) application is made within 30 days to reduce the judgment; (2)

there is no right of recoupment through subrogation, trust agreement, lien, or otherwise;

(3) the reduction does not reduce the judgment by more than 50% of the total; (4) damages

awarded are increased by the amount of any insurance premiums or the direct costs paid

by the plaintiff for such benefits in the 2 years before the incident or to be paid by the

plaintiff in the future for such benefits; and (5) there is no reduction for charges paid for

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medical expenses which were directly attributable to the adjudged negligent acts or

omissions of the defendants found liable.


The burden of moving for a reduction in damages lies with the defendant. DeCastris

v. Gutta, 237 Ill. App. 3d 168, 173 (2d Dist. 1992). The defendant also bears the burden of

establishing the amount of benefits that were paid or had become payable to the plaintiff

by collateral sources and which were not subject to recoupment through subrogation, trust

agreement, lien, or otherwise. DeCastris v. Gutta, 237 Ill. App. 3d 168, 173 (2d Dist. 1992).

However, §2-1205 does not require that the defendant prove that an unitemized, general

verdict included an award of medical bills and lost wages. DeCastris v. Gutta, 237 Ill. App.

3d 168, 173 (2d Dist. 1992). To the contrary, the plaintiff must request an itemized verdict

reflecting distribution of economic loss by specific category to avoid reduction of judgment

on the grounds that medical expenses and wages were not clearly shown. DeCastris v.

Gutta, 237 Ill. App. 3d 168, 173 (2d Dist. 1992). To receive a setoff pursuant to §2-1205, the

burden is on a defendant to prove that a plaintiff’s insurer does not have a right of

recoupment against the benefits it has paid. York v. El-Ganzouri, 353 Ill. App. 3d 1, 22 (1st

Dist. 2004), aff’d, 222 Ill. 2d 147 (2006).

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The trial court’s ruling under §2-1205, at least where the determination amounts to

an interpretation of the statute, is reviewed de novo. Perkey v. Portes-Jarol, 2013 IL App

(2d) 120470 ¶92.

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IV. Motions for Stay

A. Motion for Stay


735 ILCS 5/2-1305:

A party intending to move to set aside any judgment, bond orother proceeding may apply to the court or to the judge inchamber for a certificate (which the judge may, in his or herdiscretion, grant) that there is probable cause for stayingfurther proceedings until the order of the court on the motion.Service of a copy of the certificate at the time of or after theservice of the notice of the motion stays all further proceedingsaccordingly. In no case shall the judge grant the certificate ifthe error complained of may, by the direction of the judge tothe clerk issuing the process, be corrected, but the judge shallorder and the clerk shall make the correction in the process,nor unless the applicant has given notice of the motion to theopposite party, or his or her attorney of record, if they or eitherof them can be found in the county where the judgment wasentered.

2. Purpose

Section 2-1305 provides authority for the trial court to stay proceedings between the

time the action is taken and the time the court rules on a motion attacking the action. In

that sense, it is the functional equivalent of an “appeal bond” for proceedings before the

circuit court. It is noteworthy that the section does not explicitly provide that a certificate

of stay will stay the enforcement of the judgment, if there is one. However, one might

interpret the term “all further proceedings” to include enforcement. Further, a timely-filed

motion under 735 ILCS 5/2-1203 will stay enforcement of the judgment (except judgments

for injunctive or declaratory relief) until the motion is decided. An application under this

section may be particularly useful in conjunction with a motion to vacate a default

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judgment of which the party was unaware until enforcement action began. Stays of

enforcement of a judgment pending appeal are addressed by Illinois Supreme Court Rule

305.

3. Time for filing

Although there is no specific time limit set forth in the statute, if a party intends to

move to set aside a judgment that is final and appealable, the trial court will lose

jurisdiction to modify the judgment once 30 days after entry of the judgment have passed.

Accordingly, any application under §2-1305, as well as a motion attacking the judgment,

must be filed within that time.

4. Prerequisites

The statute lists four prerequisites for relief under §2-1305 are that: (1) the party

bringing such a motion intends to move to set aside a judgment, bond, or “other

proceeding;” (2) there is probable cause for staying further proceedings; (3) the error

complained of may not be corrected by order to the clerk who issued the process; and (4)

the applicant has given notice of the motion to the opposite party or opposing counsel. In

addition, after the court grants the motion and issues a “certificate that there is probable

cause for staying further proceedings until the order of the court on the motion,” the party

who obtained the relief must serve a copy of the certificate at the time of, or after, the

service of the notice of the motion to obtain the benefit of the stay.

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Whether to issue a certificate for stay is within the trial court’s discretion. 735 ILCS

5/2-1305.


The standard of review, as set forth in the statute, is abuse of discretion. Stacke v.

Bates, 138 Ill. 2d 295, 302 (1990). A stay of judgment is collateral to the judgment and does

not affect the issues on appeal. General Motors Corp. v. Pappas, 242 Ill. 2d 163, 174 (2011).

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B. Motion for Stay Pending Appeal


Illinois Supreme Court Rule 305:

(a) Stay of Enforcement of Money Judgments. The enforcementof a judgment for money only, or any portion of a judgmentwhich is for money, shall be stayed if a timely notice of appealis filed and an appeal bond or other form of security, including,but not limited to, letters of credit, escrow agreements, andcertificates of deposit, is presented to, approved by, and filedwith the court within the time for filing the notice of appeal orwithin any extension of time granted under paragraph (c) ofthis rule. Notice of the presentment of the bond or other formof security shall be given by the judgment debtor to all parties.The bond or other form of security ordinarily shall be in anamount sufficient to cover the amount of the judgment andcosts plus interest reasonably anticipated to accrue during thependency of the appeal. If a form of security other than anappeal bond is presented, the appellant shall have the burdenof demonstrating the adequacy of such other security. If thecourt, after weighing all the relevant circumstances, includingthe amount of the judgment, anticipated interest and costs, theavailability and cost of a bond or other form of security, theassets of the judgment debtor and of the judgment debtor’sinsurers and indemnitors, if any, and any other factors thecourt may deem relevant, determines that a bond or other formof security in the amount of the judgment plus anticipatedinterest and costs is not reasonably available to the judgmentdebtor, the court may approve a bond or other form of securityin the maximum amount reasonably available to the judgmentdebtor. In the event that the court approves a bond or otherform of security in an amount less than the amount of thejudgment plus anticipated interest and costs, the court shallimpose additional conditions on the judgment debtor toprevent dissipation or diversion of the judgment debtor’s assetsduring the appeal.

(b) Stays of Enforcements of Nonmoney Judgments and OtherAppealable Orders. Except in cases provided for in paragraph(e) of this rule, on notice and motion, and an opportunity foropposing parties to be heard, the court may also stay theenforcement of any judgment, other than a judgment, or

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portion of a judgment, for money, or the enforcement, forceand effect of appealable interlocutory orders or any otherappealable judicial or administrative order. The stay shall beconditioned upon such terms as are just. A bond or other formof security may be required in any case, and shall be requiredto protect an appellee’s interest in property.

(c) Extensions of Time. On motion made within the time forfiling the notice of appeal or within any extension grantedpursuant to this paragraph, the time for the filing and approvalof the bond or other form of security may be extended by thecircuit court or by the reviewing court or a judge thereof, butthe extensions of time granted by the circuit court may notaggregate more than 45 days unless the parties stipulateotherwise. A motion in the reviewing court for any extension oftime for the filing and approval of the bond or other form ofsecurity in the circuit court must be supported by affidavit andaccompanied by a supporting record (Rule 328), if the recordon appeal has not been filed.

(d) Stays by the Reviewing Court. Except in cases provided forin paragraph (e) of this rule, application for a stay ordinarilymust be made in the first instance to the circuit court. A motionfor a stay may be made to the reviewing court, or to a judgethereof, but such a motion must show that application to thecircuit court is not practical, or that the circuit court has deniedan application or has failed to afford the relief that theapplicant has requested, and must be accompanied bysuggestions in support of the motion and a supporting record(Rule 328), if the record on appeal has not been filed. If a stayis granted by the reviewing court or a judge thereof, the clerkshall notify the parties and transmit to the clerk of the circuitcourt or administrative agency a certified copy of the ordergranting the stay.

(e) Automatic Stay Pending Appeal of Termination of ParentalRights.

(1) An order terminating the parental rights of anyperson that is entered in a proceeding initiated underthe Juvenile Court Act of 1987 shall be automaticallystayed for 60 days after entry of the order oftermination. If notice of appeal is filed with respect tothe termination order within the 60 days, the automatic

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stay shall continue until the appeal is complete or thestay is lifted by the reviewing court. If notice of appeal isnot filed within the 60 days, the automatic stay shallexpire.

(2) The automatic stay under this rule shall stay thetermination order to the extent that it would permitentry of an order of adoption without the parent’sconsent or surrender, and shall also operate to stay thetermination order with respect to any power granted toa person or agency to consent to an adoption. In allother respects the termination order shall be unaffected.For the purposes of proceedings under the AdoptionAct, a person appealing the termination of his or herrights shall be treated as a person whose parental rightshave been terminated, except as provided in the firstsentence of this paragraph. Neither the appeal nor theautomatic stay of the termination order shall affect thetrial court's continuing jurisdiction over the care,custody, visitation and support of the child, and aguardian of the child may take any authorized actionother than consenting to the child’s adoption.

(3) No bond shall be required with respect to a stay ofadoption pending appeal of termination of parentalrights.

(4)(A) A party to the Juvenile Court Act proceeding inwhich a termination order was entered or a party to anadoption proceeding delayed by the effect of this rulemay file a motion with the reviewing court to lift theautomatic stay of a termination order. The stay of anorder terminating parental rights may be lifted when itis clearly in the best interests of the child on motion orby the court sua sponte.

(B) Motions to lift an automatic stay must beaccompanied by suggestions in support of the motionand shall be served on all parties to the Juvenile CourtAct proceeding and the parties to any related AdoptionAct proceeding, if known. If the movant is a party to anadoption proceeding, the motion must include thecaption and case number of the adoption proceedingand identify the court in which the action is pending.

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(C) Motions to lift an automatic stay must beaccompanied by a supporting record as provided in Rule328. If the movant was not a party to the Juvenile CourtAct proceeding and is unable to provide the supportingrecord, a decision on the motion shall be deferred untilafter the record on appeal is filed.

(D) If a stay is lifted by the reviewing court or a judgethereof, the clerk shall notify the parties and transmit tothe clerk of the trial court a certified copy of the orderlifting the stay. In the case of a motion filed by a party toan adoption proceeding, the clerk shall also send acertified copy of the order lifting the stay to the trialjudge in the adoption proceeding.

(f) When Notice of Appeal Is Amended. If a notice of appeal isamended to specify parts of the judgment not specified in theoriginal notice of appeal, the stay of the judgment described inthe original notice of appeal does not extend to any added partof the judgment, but a stay of the added part may be obtainedunder the same conditions and by the same procedure set forthabove.

(g) Condition of the Bond. If an appeal is from a judgment formoney, the condition of the bond or other form of security shallbe for the prosecution of the appeal and the payment of thejudgment, interest, and costs in case the judgment is affirmedor the appeal dismissed unless other terms are approved by thecourt as provided in paragraph (a) above, except that the bondof an executor or administrator shall be conditioned uponpayment in due course of administration and that the bond ofa guardian for a minor or a person under legal disability shallbe conditioned on payment as the guardian has funds therefor.In all other cases, the condition shall be fixed with reference tothe character of the judgment.

(h) Changing the Amount, Terms, and Security of the Bond orOther Form of Security After the Appeal is Docketed. After thecase is docketed in the reviewing court, that court or a judgethereof upon motion may, consistent with the provisions ofparagraph (a) above, change the amount, terms or security ofthe bond or other form of security, whether fixed by it or by thecircuit court, and failure to comply with the order of thereviewing court or judge shall terminate the stay.

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(i) Appeals by Public Agencies. If an appeal is prosecuted by apublic, municipal, governmental, or quasi-municipalcorporation, or by a public officer in that person’s officialcapacity for the benefit of the public, the circuit court, or thereviewing court or a judge thereof, may stay the judgmentpending appeal without requiring that any bond or other formof security be given.

(j) Insurance Policy as Bond. The filing of an insurance policypursuant to section 392.1 of the Illinois Insurance Code (215ILCS 5/392.1) shall be considered the filing of a bond forpurposes of this rule.

(k) Failure to Obtain Stay; Effect on Interests in Property. If astay is not perfected within the time for filing the notice ofappeal, or within any extension of time granted undersubparagraph (c) of this rule, the reversal or modification of thejudgment does not affect the right, title, or interest of anyperson who is not a party to the action in or to any real orpersonal property that is acquired after the judgment becomesfinal and before the judgment is stayed; nor shall the reversalor modification affect any right of any person who is not a partyto the action under or by virtue of any certificate of sale issuedpursuant to a sale based on the judgment and before thejudgment is stayed. This paragraph applies even if the appellantis a minor or a person under legal disability or under duress atthe time the judgment becomes final.

(l) Land Trust Bond. The filing of a bond or other form ofsecurity by a beneficiary under a land trust where the land trustis a party shall be considered filing of a bond for purposes ofthis rule.

(m) Filing with the Circuit Court Clerk. All original appealbonds or other forms of security, whether approved by thecircuit court or the reviewing court, shall be filed with the clerkof the circuit court in which the case was filed.

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2. Purpose

Rule 305 provides a comprehensive framework for obtaining a stay of a judgment

pending appeal, formerly referred to as a supersedeas. The stay is collateral to the judgment

and does not affect either the validity of the judgment itself or the issues on appeal.

Steinbrecher v. Steinbrecher, 197 Ill. 2d 514, 517 (2001). The stay operates to prohibit

enforcement of the judgment pending the outcome of the appeal while providing security

for collection to the appellee in the event of an affirmance. Stacke v. Bates, 138 Ill. 2d 295,

302 (1990). A party need not obtain a stay to appeal to proceed with an appeal and the

absence of a stay order or a bond does not affect the validity of an appeal. Jack Spring, Inc.

v. Little, 50 Ill. 2d 351, 356 (1972).

3. Time for filing

In those classes of cases in which a bond is required to obtain a stay pending appeal,

an acceptable bond ordinarily must be presented to, approved by, and filed with the circuit

court within the time for filing the notice of appeal. Ill. Sup. Ct. R. 305(a). The party seeking

a stay may move in the circuit court for an extension of the time to present a bond or other

security within the time for filing the notice of appeal. Ill. Sup Ct. R. 305(c). However, the

circuit court may not grant extensions totaling more than 45 days without the parties’

agreement. Ill. Sup. Ct. R. 305(c).

Applications for stay must first be made in the circuit court in most instances. A

party may apply to the appellate court if it establishes that an application to the circuit court

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was not practical or that the circuit court denied a stay or refused to grant the relief

requested. Ill. Sup. Ct. R. 305(d).

4. Prerequisites

Besides timely filing, the key prerequisite to obtaining a stay is presenting to the

court an appeal bond or other form of security to assure that the judgment will be satisfied

if it is affirmed. In the case of a money judgment, the rule provides that amount of the

security “ordinarily” shall be “sufficient to cover the amount of the judgment and costs plus

interest reasonably anticipated to accrue during the pendency of the appeal.” Ill. Sup Ct. R.

305(a). Where a non-money judgment is involved, a bond or other form of security “may

be required” and such security “shall be required” to protect an interest in property. Ill. Sup

Ct. R. 305(b).


Rule 305(a) states that a stay “shall be stayed” if the prerequisites set forth in the rule

and satisfied. Ill. Sup. Ct. R. 305(a). However, because the rule leaves to the circuit court

a great deal of discretion as to whether those prerequisites have been satisfied, it has been

held that whether to grant a stay pending appeal is within the trial court’s discretion. Fick

v. Weedon, 244 Ill. App. 3d 413, 418 (4th Dist. 1993).

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A circuit court’s decision regarding a stay pending appeal will be reversed only if it

is an abuse of discretion. Stacke v. Bates, 138 Ill. 2d 295, 302 (1990).

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