                                               FIRST DIVISION
                                               November 19, 2007




Nos. 1-07-0942 and 1-07-0943, Consolidated

ROSA CARDONA, individually, and as a      )    Appeal from the
mother and next friend of FILBERTO        )    Circuit Court of
CARDONA, a minor,                         )    Cook County.
                                          )
       Plaintiff-Appellant-Cross-         )
       Appellee,                          )
                                          )
            v.                            )
                                          )
DR. ALFONSO DEL GRANADO,                  )
                                          )    Honorable
       Defendant-Appellee-Cross-          )    James P. Flannery,
       Appellant.                         )    Judge Presiding.


       JUSTICE WOLFSON delivered the opinion of the court:

       Following a trial on the plaintiff’s medical malpractice

complaint, the jury returned a verdict for the plaintiff,

awarding $300,000 for future medical expenses and no other

damages.    The plaintiff filed a motion requesting a new trial on

damages only.    The trial court sua sponte ordered a new trial on

all issues, including liability and damages.    Neither side is

happy with that decision.    Both appeal it.

       Plaintiff contends the court lacked subject matter

jurisdiction to order a new trial where neither party requested

one.    Defendant contends the court abused its discretion in

ordering a new trial and should have let the original verdict

stand.    We affirm the trial court’s grant of a new trial on all

issues.
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FACTS

     The plaintiff, Rosa Cardona, filed a medical malpractice

complaint against defendant Dr. Alfonso Del Granado, on behalf of

her disabled son Filiberto Cardona, Jr.   Plaintiff alleged

defendant’s negligence during the birth of her son caused

Filiberto to sustain moderate to severe mental retardation.    As

far as we can tell from the record, defendant’s experts testified

that Filiberto’s condition was not caused by any acts or

omissions of Dr. Del Granado.   It is unclear from this record

what evidence was introduced by the plaintiff.

     The jury reached a verdict in favor of plaintiff and against

defendant, awarding plaintiff $300,000 for the present cash value

of future medical expenses.   The jury awarded no damages for loss

of a normal life, pain and suffering, or the value of future

earnings.   The trial court entered judgment on the jury’s

verdict.

     Plaintiff filed a post-trial motion seeking a new trial on

damages only.   Plaintiff contended the jury’s failure to award

any damages for loss of a normal life in the face of undisputed

evidence to the contrary was against the manifest weight of the

evidence.   Plaintiff did not contest the jury’s failure to award

damages for pain and suffering or loss of future earnings.    In

defendant’s response, he argued the jury’s verdict should stand

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because the damage award was consistent with the evidence at

trial.   As a fallback, he argued a new trial on damages alone

would be inappropriate because the issues of liability and

damages were inextricably intertwined.

     The trial court denied plaintiff’s motion for a new trial on

damages only, vacated the judgment order against defendant, and

granted a new trial on all issues, including liability and

damages.   The court said:

           "The Court feels that the issues are

           intertwined.   The Court feels that the

           verdict was a compromised verdict, and at

           this time the order is that there be a new

           trial on all issues."

     Plaintiff moved to amend the court’s ruling nunc pro tunc to

have the order indicate plaintiff’s post-trial motion was denied.

Defendant filed a motion for reconsideration asking the court to

reconsider its order granting a new trial and affirm its order

entering judgment on the jury verdict.    The court allowed

plaintiff’s motion and denied defendant’s motion.    Following

argument on the motions, the court held:

           "[A]t this time, based on the evidence and

           the law that the Court heard during the

           trial, this should have been a not guilty.

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           It was not a not guilty.    If the jury found

           for the plaintiff, the jury absolutely should

           have found for loss of a normal life.    It did

           not.

                  The Court believes, based on the verdict

           of the jury and the evidence that was heard,

           that this was a compromised verdict where the

           issues of damage and liability are

           incompliant [sic]."

     In her appeal, plaintiff contends the court lacked subject

matter jurisdiction to order a new trial on all issues because

plaintiff never sought such relief in her post-trial motion and

defendant never filed a cross-post-trial motion.

     In his appeal, the defendant contends the court abused its

discretion in ordering a new trial where the verdict was

consistent with the evidence.

DECISION

I. Subject Matter Jurisdiction--Plaintiff’s Appeal

     The plaintiff contends a trial court does not have

jurisdiction to sua sponte order relief from a jury verdict or go

beyond the relief sought by the parties in a post-trial motion.

The trial court’s subject matter jurisdiction over the

proceedings is an issue of law which we review de novo.      In re

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Estate of Ahern, 359 Ill. App. 3d 805, 809, 835 N.E.2d 95 (2005).

     Plaintiff relies on section 2-1202 of the Code of Civil

Procedure, which provides that a post-trial motion for new trial

"must contain the points relied upon, particularly specifying the

grounds in support thereof, and must state the relief desired, as

for example, the entry of a judgment, the granting of a new trial

or other appropriate relief***   The Court must rule upon all

relief sought in all post-trial motions."   735 ILCS 5/2-1202(b),

(f) (West 2004).

     We note section 2-1202(e) is directed at a party who fails

to seek a new trial in its post-trial motion.   The section

provides that party “waives the right to apply for a new trial.”

(Emphasis added.)   735 ILCS 5/2-1202(e) (West 2004).   It does not

say the trial court lacks authority to grant whatever relief it

believes appropriate.   The defendant did not want a new trial; he

was satisfied with the jury’s verdict.

     We do not agree that section 2-1202 limits the trial court’s

authority to order a new trial on all issues, whether or not a

party requests such relief.

     In Freeman v. Chicago Transit Authority, 33 Ill. 2d 103, 210

N.E.2d 191 (1965), the trial court on its own motion set aside

the special finding of the jury on the ground that it was against

the manifest weight of the evidence.   The court then entered

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judgment on the verdicts.    The supreme court held it was within

the trial court’s authority to do so.     Freeman, 33 Ill. 2d at

105-106.   The court rejected the notion that section 68.1(2) of

the Civil Practice Act (the predecessor to section 2-1202) barred

a trial judge from considering any grounds not raised by a party

in its written post-trial motion:

           "While the section thus confines a litigant,

           upon appeal, to those matters specifically

           raised in the trial court, it contains

           nothing that suggests an intention to

           interfere with the power of a trial court to

           act upon its own motion.

                  The function of a trial judge in

           determining whether the answer to a special

           interrogatory is against the manifest weight

           of the evidence is analogous to his function

           in determining whether a general verdict is

           against the weight of the evidence, and his

           authority to act upon his own motion should

           be the same in both instances.   Orders

           granting new trials were not appealable at

           all until the Civil Practice Act became

           effective in 1934, and apparently the

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          authority of a trial court to grant a new

          trial on its own motion has not been

          considered by this court.      But in those

          jurisdictions that have considered the

          question the power is firmly established.

          [Citations.]   These decisions are based upon

          a recognition that the role of a trial judge

          is not that of a presiding officer or an

          umpire, and that he is responsible for the

          justice of the judgment that he enters.       The

          defendant’s argument would take away that

          responsibility and tend to reduce his role to

          that of an automaton."       Freeman, 33 Ill. 2d

          at 105-106.

     In Winters v. Kline, 344 Ill. App. 3d 919, 801 N.E.2d 984

(2003), the plaintiff had filed a post-trial motion seeking a new

trial on damages only.    Winters, 344 Ill. App. 3d at 924.      As in

this case, the defendants filed a response arguing the jury’s

verdict was consistent with the evidence.      Alternatively,

defendants contended that if a new trial were ordered, it should

be of the entire case on all issues.      The defendants did not file

a post-trial motion.    The trial court granted plaintiff’s motion,

ordering a new trial on damages only.      Defendants filed an

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emergency motion to reconsider, contending a new trial on damages

was inappropriate where the issues of liability and damages were

intertwined, liability was contested, and there was evidence of a

compromise verdict.    Winters, 344 Ill. App. 3d at 924.    The trial

court then ordered a new trial on liability and damages.     We

affirmed that order.    We held it was within the trial court’s

power to modify its interlocutory order, post-trial motion or

not.    Winters, 344 Ill. App. 3d at 927-28.    There was no abuse of

discretion.    Winters, 344 Ill. App. 3d at 929.    See Freeman, 33

Ill. 2d at 106.

       The cases plaintiff cites have little or nothing to do with

the facts of this case and do not support her contention

regarding the trial court’s jurisdiction.      See Maloney v. Bower,

113 Ill. 2d 473, 478, 498 N.E.2d 1102 (1986) (chief judge of

circuit court did not have authority to appoint office of public

defender to represent indigents in civil contempt proceedings);

J.H. v. Ada S. McKinley Community Services, 369 Ill. App. 3d 803,

808, 861 N.E.2d 320 (2006) (trial court could not sua sponte,

without a hearing or notice, appoint a guardian ad litem for

competent adult plaintiffs who were represented by counsel); In

re Custody of Ayala, 344 Ill. App. 3d 574, 585, 800 N.E.2d 524

(2003) (court exceeded its jurisdiction in awarding joint co-

custodial care of minor to third parties where no pleading

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requested this relief); In re General Order of March 15, 1993,

258 Ill. App. 3d 13, 17, 629 N.E.2d 673 (1994) (trial court may

not invoke its power to declare an attorney in contempt and,

consequently, disbar or suspend him or her from appearing before

it); In re Marriage of Fox, 191 Ill. App. 3d 514, 520, 548 N.E.2d

71 (1989) (a petition for contempt with respect to visitation in

a dissolution proceeding did not present to the trial court a

"justiciable matter" sufficient for the trial court to make a

child custody determination); Ottwell v. Ottwell, 167 Ill. App.

3d 901, 908-909, 522 N.E.2d 328 (1988) (court’s orders regarding

child support were void for lack of jurisdiction in action

brought by Department of Public Aid against husband, where no

petition to modify child support was filed).

     The trial court in this case retained jurisdiction over

plaintiff’s lawsuit because plaintiff timely filed a post-trial

motion challenging the court’s judgment on the jury’s verdict.

The fact that plaintiff sought a new trial limited to the issue

of damages has nothing to do with the court’s jurisdiction over

the entire case.   Nor can plaintiff say the trial court decided

an issue that was not before it.       Plaintiff placed the issue of

the jury’s verdict before the court when she filed her post-trial

motion.

     We reject plaintiff’s contention that the trial court lacked

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jurisdiction to order a new trial.

     We next address plaintiff’s contention that the trial court

should have granted her motion for a new trial on damages only.

Although plaintiff addresses this argument in her response brief

to defendant’s appeal, she fails to include the argument in her

own appeal of the trial court’s order.   We find plaintiff has

waived the argument.

     The supreme court rules provide, "[p]oints not argued [in

the initial brief] are waived and shall not be raised in the

reply brief, in oral argument, or on petition for rehearing."

210 Ill. 2d R. 341(h)(7); People v. Pecor, 153 Ill. 2d 109, 116,

606 N.E.2d 1127 (1992).   Plaintiff’s inclusion of the argument in

her response to defendant’s appeal is an inappropriate response

to defendant’s contention that the trial court abused its

discretion in granting a new trial.

     Were we to address plaintiff’s contention, we would find the

court did not abuse its discretion in denying plaintiff’s motion.

The map for new trial territory is clearly drawn:

          "A new trial limited to the question of

          damages will be granted only where: (1) the

          jury’s verdict on the question of liability

          is amply supported by the evidence; (2) the

          questions of liability and damages are

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          sufficiently distinct such that a trial

          limited to the question of damages would not

          be unfair to the defendant; and (3) the

          record suggests neither that the jury reached

          a compromise verdict, nor that, in some

          identifiable manner, the error which resulted

          in the jury’s awarding inadequate damages

          also affected its verdict on the question of

          liability."    Winters, 344 Ill. App. 3d at

          925, citing Midland Hotel Corp. v. Reuben H.

          Donnelly Corp., 118 Ill. 2d 306, 319-20, 515

          N.E.2d 61 (1987).

     The plaintiff bears the burden of showing the jury’s verdict

was not a compromise of liability against damages.      Winters, 344

Ill. App. 3d at 926.    Plaintiff cannot possibly sustain that

burden when she does not include in the record any liability

testimony given at trial by her expert witnesses.    Without a more

complete record we cannot begin to address the compromise issue.

II. Abuse of Discretion--Defendant’s Appeal

     Initially, plaintiff contends defendant lacks standing to

challenge the trial court’s order granting a new trial because he

did not file a post-trial motion seeking a new trial or a

judgment n.o.v.   Plaintiff’s argument borders on the nonsensical.

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Defendant was not seeking relief from the judgment reached by the

jury.   Rather, he sought relief from the trial court’s

interlocutory order vacating the judgment and granting a new

trial on all issues.    Defendant was not required to file a motion

for new trial or a judgement n.o.v. in order to challenge the

court’s order.    See Winters, 344 Ill. App. 3d at 928.   We find

the defendant has standing to challenge the trial court’s order

on appeal.

     Defendant contends the trial court abused its discretion by

discarding the jury’s verdict and ordering a new trial.    We

disagree.

     “A trial court’s ruling on a motion for a new trial will not

be reversed unless there is an affirmative showing that it

clearly abused its discretion.”    Winters, 344 Ill. App. 3d at

925, citing Maple v. Gustafson, 151 Ill. 2d 445, 455, 603 N.E.2d

508 (1992).   A court abuses its discretion only where its ruling

is "arbitrary, fanciful, or unreasonable, or where no reasonable

person would adopt the court’s view."    Evitts v. DaimlerChrysler

Motors Corp., 359 Ill. App. 3d 504, 513, 834 N.E.2d 942 (2005).

     A jury verdict that indicates compromises were made on

damages and liability cannot be allowed to stand.    Winters, 344

Ill. App. 3d at 926; Svetanoff v. Kramer, 80 Ill. App. 3d 575,

578, 400 N.E.2d 1 (1979).   “While a verdict of zero damages is

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proper if there is evidence no damages were suffered, an award of

damages that does not bear a reasonable relationship to the

evidence is an indication of a compromise verdict.”    Winters, 344

Ill. App. 3d at 926.   “The standard to test whether a verdict

resulted from a compromise is whether the verdict on the issue of

liability was amply supported by the evidence.”    Vacala v.

Village of LaGrange Park, 260 Ill. App. 3d 599, 618, 636 N.E.2d

812 (1994).

     For the same reasons we refuse to address plaintiff’s

contention that the jury’s verdict was not a compromise verdict,

we cannot address defendant’s claim that there should be no new

trial.   That is, we are not given the testimony of plaintiff’s

experts on the issue of liability.

     While we recognize a rough apportionment of damages between

the innocent cause and the negligent cause of an injury may be

appropriate in some cases (Glassman v. St. Joseph Hospital, 259

Ill. App. 3d 730, 631 N.E.2d 1186 (1994)), we find the record in

this case is inadequate for us to determine whether a reasonable

basis exists for the jury’s verdict.

     Supreme Court Rule 306(g) provides that: “If leave to appeal

is allowed, any party to the appeal may request that additional

portions of the record on appeal be prepared ***.”    210 Ill. 2d

R. 306(g).    Defendant, as the cross-appellant, bears the burden

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of providing a sufficiently complete record to support his claim

of error.   Foutch v. O’Bryant, 99 Ill. 2d 389, 391-92, 459 N.E.2d

958 (1984).   In the absence of an adequate record, we must

presume the trial court’s order was entered in conformity with

the law and had a sufficient factual basis.   Foutch, 99 Ill. 2d

at 392.

     The record in this case consists almost entirely of excerpts

from the trial testimony of defendant’s expert witnesses.     All of

defendant’s witnesses uniformly testified that defendant was not

responsible for plaintiff’s injury.   The jury, however,

determined defendant was liable and awarded $300,000 in damages

for medical costs.   Nothing in the record before us indicates the

jury’s verdict was an attempt to apportion damages between an

innocent cause and a negligent cause of plaintiff’s injury.     Any

evidence indicating defendant was even partially responsible for

plaintiff’s injury has not been included in the record.

     Due to the inadequate nature of the record in this case,

meaningful review of the defendant’s contention is impossible.

Accordingly, we presume the trial court’s order was entered in

conformity with the law and had a sufficient factual basis.     See

Foutch, 99 Ill. 2d at 392.   The trial court’s grant of a new

trial on all issues is affirmed.

     Affirmed.

     GARCIA, and R. GORDON, JJ., concur.

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