Han v. Holloway

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Han v. Holloway

State: Illinois

Court: 1st District Appellate

Docket No: 1-10-0568 NRel

Case Date: 03/01/2011

Preview:SECOND DIVISION March 1, 2011

No. 1-10-0568 HYE RA HAN, Plaintiff-Appellant, v. WILLIAM HOLLOWAY, Defendant-Appellee. ) ) ) ) ) ) ) ) ) Appeal from the Circuit Court of Cook County No. 04 L 7997 Honorable Richard J. Elrod, Judge Presiding.

JUSTICE HARRIS delivered the judgment of the court, with opinion. Presiding Justice Cunningham and Justice Karnezis concurred in the judgment.

OPINION Plaintiff Hye Ra Han sued defendant William Holloway for negligence, alleging personal injuries arising from a 2002 motor vehicle accident in Chicago. In 2009, following a jury trial, the circuit court of Cook County entered judgment in favor of defendant, in accordance with the jury's verdict. Plaintiff filed a posttrial motion for a new trial, which the court denied. For the reasons set forth below, we affirm. JURISDICTION The trial court denied plaintiff's motion for a new trial on January 29, 2010, and plaintiff timely filed her notice of appeal on February 24, 2010. Accordingly, this court has jurisdiction pursuant to Illinois Supreme Court Rule 303 (eff. May 30, 2008).

1-10-0568 BACKGROUND At trial, 1 defendant testified that on July 22, 2002, immediately prior to the accident, plaintiff was the driver of a vehicle stopped behind approximately five other cars for a red light westbound on North Avenue at Halsted. Defendant's vehicle was stopped behind plaintiff's vehicle at the red light. When the light turned green, the cars in front of plaintiff's vehicle proceeded to cross through the intersection of Halsted, and plaintiff's vehicle also began to move forward toward the intersection. Defendant likewise began slowly moving forward, but then saw plaintiff's brake lights come on, and she stopped suddenly in front of him, about a car length before the intersection. Defendant applied his brakes and honked his horn. He saw no pedestrian or anything else in front of her vehicle. Defendant estimated he was traveling about one or two miles per hour when the front of his car made contact with the rear of plaintiff's vehicle. Defendant stated he thought his license plate scratched plaintiff's rear bumper. Beyond the scratch on plaintiff's bumper, there was no other noticeable damage to either vehicle. Both vehicles were driveable, and the parties agreed to drive to the nearest police station to file a police report. According to defendant, both he and plaintiff spoke to the officer at the desk. The police asked plaintiff if she was okay, and she answered "yes." After speaking to the police, defendant and plaintiff left the station, got in their respective vehicles and left.2 The evidence presented at trial also included testimony, by evidence deposition, of two of

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Plaintiff's testimony at trial is not included in the record in this case.

The police report prepared for this accident, which is included in the record, shows a check mark in the box labeled "No Injury/Drive Away." 2

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1-10-0568 plaintiff's treating physicians, Dr. Roberto Diaz and Dr. James Robert Diesfeld, and Dr. Russell Glantz, one of defendant's retained expert witnesses. Dr. Diaz opined, to a reasonable degree of medical certainty, that plaintiff suffered a lumbar spine sprain/strain, a bulging disk, and an annular tear in her spine as a result of the accident. Similarly, Dr. Diesfeld opined, to a reasonable degree of medical certainty, that plaintiff suffered a diffuse disk bulge and annular tear caused by the accident. Defendant's expert, Dr. Glantz, agreed that plaintiff suffered "a soft tissue injury, which is also known as a sprain or strain to the lower lumbar area," caused by the accident. However, he added that, consistent with Dr. Diaz's report of his examination of plaintiff on September 13, 2002, any lumbar sprain/strain plaintiff might have sustained in the July 22 accident was basically completely resolved as of September 13. With regard to the annular tear, Dr. Glantz opined, to a reasonable degree of medical certainty, that even if there was an annular tear, it was "unlikely that that occurred at the time of the motor vehicle accident."3 On October 16, 2009, the jury returned a verdict in favor of defendant and against plaintiff, and the trial court entered judgment for defendant. The court subsequently denied plaintiff's posttrial motion for a new trial. Additional relevant details of Dr. Glantz's trial testimony will be discussed in the context of individual issues raised on appeal. ANALYSIS Plaintiff argues the trial court erred in denying her posttrial motion for a new trial.

According to Dr. Glantz's report, which is included in defendant's Illinois Supreme Court Rule 213(f) (eff. Jan. 1, 2007) disclosures, plaintiff's first medical treatment following the accident was eight days later, when she saw a chiropractor. 3

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1-10-0568 According to plaintiff, the jury's verdict in favor of defendant and against plaintiff was "clearly contrary to the manifest weight of the evidence." The standard for determining whether a trial court erred in denying a motion for a new trial is whether the jury's verdict was against the manifest weight of the evidence. Maple v. Gustafson, 151 Ill. 2d 445, 455 (1992). A verdict is against the manifest weight of the evidence where the opposite conclusion is clearly evident or where the findings of the jury are unreasonable, arbitrary, and not based upon any of the evidence. Id. at 454. A trial court's ruling on a motion for a new trial will not be reversed except in those instances where it is affirmatively shown that it clearly abused its discretion. Id. at 455. The appellant has the burden to present a sufficiently complete record to support a claim of error on appeal. Webster v. Hartman, 195 Ill. 2d 426, 432 (2001) (citing Foutch v. O'Bryant, 99 Ill. 2d 389, 391-92 (1984)). Indeed, "[f]rom the very nature of an appeal it is evident that the court of review must have before it the record to review in order to determine whether there was the error claimed by the appellant." Foutch, 99 Ill. 2d at 391. Where the issue on appeal relates to the conduct of a hearing or proceeding, this issue is not subject to review absent a report or record of the proceeding. Webster, 195 Ill. 2d at 432. Without such a record, it is presumed that the order entered by the trial court is in conformity with the law and has a sufficient factual basis. Foutch, 99 Ill. 2d at 392; Webster, 195 Ill. 2d at 432. "Any doubts which may arise from the incompleteness of the record will be resolved against the appellant." Foutch, 99 Ill. 2d at 392. In Foutch, the defendants' motion to vacate judgment was denied by the trial court. Defendants failed to present a complete record of the hearing on review. The appellate court

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1-10-0568 affirmed the decision of the trial court, and our supreme court affirmed. The supreme court stated: "As there is no transcript of the hearing on the motion to vacate here, there is no basis for holding that the trial court abused discretion in denying the motion." Foutch, 99 Ill. 2d at 392. Here, as noted, plaintiff's testimony at trial is not included in the record on appeal. The importance of this testimony is underscored by plaintiff's repeated references to it in her brief, but without proper citation to the record.4 Plaintiff thus argues the jury's verdict was against the manifest weight of the evidence, but she fails to include in the record all of the relevant evidence that was actually presented to the jury. Without a transcript of plaintiff's trial testimony, there is no adequate basis for concluding the trial court abused its discretion in denying plaintiff's motion for a new trial. See Foutch, 99 Ill. 2d at 392. In this situation, we presume the order entered by the trial court was in conformity with the law and had a sufficient factual basis. Id. Any doubts arising from the incompleteness of the record are resolved against plaintiff, the appellant in this case. Id. Plaintiff next argues the trial court erred in denying her motion for a directed verdict. As plaintiff correctly notes, 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. Pedrick v. Peoria & Eastern R.R. Co. , 37 Ill. 2d 494, 510 (1967). Plaintiff emphasizes that, when faced with this issue, a reviewing court

Plaintiff also failed to include in the record any of what defendant describes as "the court reported transcripts from the hearing on plaintiff's motion for a new trial," which, according to defendant, "would have contained [the judge's] detailed explanations for all of his rulings in this case." 5

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1-10-0568 "must consider all of the evidence." The difficulty here is that, without a transcript of plaintiff's trial testimony, we are prevented from considering "all the evidence." We do not know, for example, if plaintiff testified as to how the accident occurred, or whether, as plaintiff contends in her brief, her version differed from defendant's; nor do we know in what ways the two versions might have differed.5 "Where the issue on appeal relates to the conduct of a hearing or proceeding, this issue is not subject to review absent a report or record of the proceeding." Webster, 195 Ill. 2d at 432. Here again, absent a transcript of plaintiff's trial testimony, we presume the order entered by the trial court denying the motion for directed verdict was in conformity with the law and had a sufficient factual basis. See Foutch, 99 Ill. 2d at 392. Any doubts arising from the incompleteness of the record are resolved against plaintiff. Id. Plaintiff next advances a series of arguments regarding "errors in certain rulings" of the trial court. Plaintiff first argues the trial court erred in allowing Dr. Glantz to rely, in his testimony, on a portion of the police report in this case. The police report, which was prepared shortly after the accident, shows a check mark in the box labeled "No Injury/Drive Away." Dr. Glantz relied, in part, on this portion of the police report in formulating his opinions regarding plaintiff's alleged injuries. At trial, the following colloquy occurred between defense counsel and Dr. Glantz:

Plaintiff also failed to include in the record what defendant describes as "the court reported transcript of the proceedings wherein the arguments for and against the motion for a directed verdict were made and the bases upon which [the judge] properly denied the motion for a directed verdict [were presented]." 6

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1-10-0568 "Q. Doctor, *** in terms of rendering your expert opinions in this case as well as others in terms of what injuries, if any, were sustained in a car accident, is it part of your custom and practice to review information that would be contained in a police report from the traumatic event, the motor vehicle accident? A. Yes. Q. And you reviewed the police report in this particular case, correct? A. Yes. Q. And you're using that as one piece of the puzzle, so to speak, one part in basing your opinions of what injuries, if any, Ms. Han sustained in this accident, correct? A. Yes, just one part. Q. And from reviewing the police report, did you note if any injuries were reported by Ms. Han in this case? A. There were none. *** Q. And what's the significance *** if any, of the fact that no injury was reported at the scene of the accident to the police by Ms. Han, what's the significance of that in terms of rendering your opinions about what injuries she suffered in this case?

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1-10-0568 MR. BASILE (plaintiff's counsel): Same objection, ask that the testimony be stricken.[6] BY THE WITNESS: A. Well, the significance is

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