A ROADMAP TO THE

JURISDICTIONAL TWILIGHT ZONE:

Illinois Civil Procedure
Between Trial and Appeal
Parts I through IV

Timothy J. Storm

Timothy J. Storm
Storm Law Office
Suite 200
777 Lake Zurich Road
Barrington, Illinois 60010
847-526-6300
tjstorm@illapp.com

Disclaimers
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contained 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 contained
in this publication without seeking counsel from a licensed attorney.
The information presented in this publication may not reflect the most current legal
developments. The author makes no warranties, representations, or claims of any kind
concerning the information presented in this publication. The information may be
withdrawn, changed, improved, or updated at any time without notice. The author is not
liable 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

B.

Motions for Reduction in the Amount of the Recovery

IV.

[735 ILCS 5/2-1206]

[735 ILCS 5/2-1205]

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 posttrial 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 decisionmaker 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 partys
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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ILLINOIS CIVIL PROCEDURE BETWEEN TRIAL AND APPEAL

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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ILLINOIS CIVIL PROCEDURE BETWEEN TRIAL AND APPEAL

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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ILLINOIS CIVIL PROCEDURE BETWEEN TRIAL AND APPEAL

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 submitted
to the jury, any party moves for a directed verdict the court may
(1) grant the motion or (2) deny the motion or reserve its ruling
thereon and submit the case to the jury. If the court denies the
motion or reserves its ruling thereon, the motion is waived
unless the request is renewed in the post-trial motion.
735 ILCS 5/2-1202(b):
Relief desired after trial in jury cases, heretofore sought by
reserved motions for directed verdict or motions for judgment
notwithstanding the verdict, in arrest of judgment or for new
trial, must be sought in a single post-trial motion. Relief after
trial may include the entry of judgment if under the evidence in
the case it would have been the duty of the court to direct a
verdict without submitting the case to the jury, even though no
motion for directed verdict was made or if made was denied or
ruling thereon reserved. The post-trial motion 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. Relief sought in post-trial motions may
be in the alternative or may be conditioned upon the denial of
other relief asked in preference thereto, as for example, a new
trial may be requested in the event a request for judgment is
denied.

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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ILLINOIS CIVIL PROCEDURE BETWEEN TRIAL AND APPEAL

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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ILLINOIS CIVIL PROCEDURE BETWEEN TRIAL AND APPEAL

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-movants 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 courts ruling on a motion for directed verdict

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

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ILLINOIS CIVIL PROCEDURE BETWEEN TRIAL AND APPEAL

B.

Motion for Judgment Notwithstanding the Verdict (JNOV)

1.

Statutory/ rule authority

735 ILCS 5/2-1202(b):
Relief desired after trial in jury cases, heretofore sought by
reserved motions for directed verdict or motions for judgment
notwithstanding the verdict, in arrest of judgment or for new
trial, must be sought in a single post-trial motion. Relief after
trial may include the entry of judgment if under the evidence in
the case it would have been the duty of the court to direct a
verdict without submitting the case to the jury, even though no
motion for directed verdict was made or if made was denied or
ruling thereon reserved. The post-trial motion 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. Relief sought in post-trial motions may
be in the alternative or may be conditioned upon the denial of
other relief asked in preference thereto, as for example, a new
trial may be requested in the event a request for judgment is
denied.

2.

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

jurys 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 jurys verdict and a judgment on that verdict. Smith v.
Marvin, 377 Ill. App. 3d 562, 568 (3rd Dist. 2007).

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ILLINOIS CIVIL PROCEDURE BETWEEN TRIAL AND APPEAL

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).

5.

Standard of decision
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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ILLINOIS CIVIL PROCEDURE BETWEEN TRIAL AND APPEAL

6.

Standard of review
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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ILLINOIS CIVIL PROCEDURE BETWEEN TRIAL AND APPEAL

C.

Motion for New Trial

1.

Statutory/ rule authority

735 ILCS 5/2-1202(b)1:
Relief desired after trial in jury cases, heretofore sought by
reserved motions for directed verdict or motions for judgment
notwithstanding the verdict, in arrest of judgment or for new
trial, must be sought in a single post-trial motion. Relief after
trial may include the entry of judgment if under the evidence in
the case it would have been the duty of the court to direct a
verdict without submitting the case to the jury, even though no
motion for directed verdict was made or if made was denied or
ruling thereon reserved. The post-trial motion 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. Relief sought in post-trial motions may
be in the alternative or may be conditioned upon the denial of
other relief asked in preference thereto, as for example, a new
trial may be requested in the event a request for judgment is
denied.

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

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

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ILLINOIS CIVIL PROCEDURE BETWEEN TRIAL AND APPEAL

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.

5.

Standard of decision
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 jurys 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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ILLINOIS CIVIL PROCEDURE BETWEEN TRIAL AND APPEAL

different conclusion or because the court believes that a different result is more reasonable.
Redmond v. Socha, 216 Ill. 2d 622, 652 (2005).

6.

Standard of review
The trial courts 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 partys 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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ILLINOIS CIVIL PROCEDURE BETWEEN TRIAL AND APPEAL

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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ILLINOIS CIVIL PROCEDURE BETWEEN TRIAL AND APPEAL

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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ILLINOIS CIVIL PROCEDURE BETWEEN TRIAL AND APPEAL

D.

Motion in Arrest of Judgment

1.

Statutory/ rule authority

735 ILCS 5/2-1202(b):
Relief desired after trial in jury cases, heretofore sought by
reserved motions for directed verdict or motions for judgment
notwithstanding the verdict, in arrest of judgment or for new
trial, must be sought in a single post-trial motion. Relief after
trial may include the entry of judgment if under the evidence in
the case it would have been the duty of the court to direct a
verdict without submitting the case to the jury, even though no
motion for directed verdict was made or if made was denied or
ruling thereon reserved. The post-trial motion 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. Relief sought in post-trial motions may
be in the alternative or may be conditioned upon the denial of
other relief asked in preference thereto, as for example, a new
trial may be requested in the event a request for judgment is
denied.
735 ILCS 5/2-1204:
If judgment is arrested pursuant to post-trial motion for any
defect in the record, the plaintiff need not commence his or her
action anew. If appropriate, the court shall order new
pleadings.

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
plaintiffs complaint after the entry of a judgment in a plaintiffs favor. Rhodes v. Uniroyal,
Inc., 101 Ill. App. 3d 328, 331 (3d Dist. 1981).
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ILLINOIS CIVIL PROCEDURE BETWEEN TRIAL AND APPEAL

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.

5.

Standard of decision
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).

6.

Standard of review
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 CIVIL PROCEDURE BETWEEN TRIAL AND APPEAL

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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ILLINOIS CIVIL PROCEDURE BETWEEN TRIAL AND APPEAL

E.

Motion for Remittitur or Apportionment of Punitive Damages

1.

Statutory/ rule authority

735 ILCS 5/2-1207:
The trial court may, in its discretion, with respect to punitive
damages, determine whether a jury award for punitive damages
is excessive, and if so, enter a remittitur and a conditional new
trial.
The trial court may also in its discretion, apportion the punitive
damage award among the plaintiff, the plaintiff's attorney and
the State of Illinois Department of Human Services. The
amount of the award paid from the punitive damages to the
plaintiff's attorney shall be reasonable and without regard to
any contingent fee contract, except that such amount shall not
exceed 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 the
plaintiff.

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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ILLINOIS CIVIL PROCEDURE BETWEEN TRIAL AND APPEAL

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 plaintiffs consent before ordering a

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

5.

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

deference to a jurys 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 jurys 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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6.

Standard of review
A trial courts 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 courts
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

1.

Statutory/ rule authority

735 ILCS 5/2-1203:
(a) In all cases tried without a jury, any party may, within 30
days after the entry of the judgment or within any further time
the court may allow within the 30 days or any extensions
thereof, file a motion for a rehearing, or a retrial, or
modification of the judgment or to vacate the judgment or for
other relief.
(b) Except as provided in subsection (a) of Section 413 of the
Illinois Marriage and Dissolution of Marriage Act, a motion
filed in apt time stays enforcement of the judgment except that
a judgment granting injunctive or declaratory relief shall be
stayed only by a court order that follows a separate application
that sets forth just cause for staying the enforcement.

2.

Purpose
The purpose of a motion to reconsider is to bring to the courts attention newly

discovered evidence, changes in the law, or errors in the courts 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 courts attention: (1) newly discovered
evidence; (2) changes in the law; or (3) errors in the courts previous application of existing
law, but it does not properly raise a new legal theory or factual argument. River Plaza
Homeowners Assn 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.

5.

Standard of decision
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 courts

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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).

6.

Standard of review
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

1.

Statutory/ rule authority

735 ILCS 5/2-12032:
(a) In all cases tried without a jury, any party may, within 30
days after the entry of the judgment or within any further time
the court may allow within the 30 days or any extensions
thereof, file a motion for a rehearing, or a retrial, or
modification of the judgment or to vacate the judgment or for
other relief.
(b) Except as provided in subsection (a) of Section 413 of the
Illinois Marriage and Dissolution of Marriage Act, a motion
filed in apt time stays enforcement of the judgment except that
a judgment granting injunctive or declaratory relief shall be
stayed only by a court order that follows a separate application
that sets forth just cause for staying the enforcement.

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).

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.

5.

Standard of decision
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.

6.

Standard of review
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 courts 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

1.

Statutory/ rule authority

735 ILCS 5/2-1203:
(a) In all cases tried without a jury, any party may, within 30
days after the entry of the judgment or within any further time
the court may allow within the 30 days or any extensions
thereof, file a motion for a rehearing, or a retrial, or
modification of the judgment or to vacate the judgment or for
other relief.
(b) Except as provided in subsection (a) of Section 413 of the
Illinois Marriage and Dissolution of Marriage Act, a motion
filed in apt time stays enforcement of the judgment except that
a judgment granting injunctive or declaratory relief shall be
stayed only by a court order that follows a separate application
that sets forth just cause for staying the enforcement.

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.

5.

Standard of decision
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).

6.

Standard of review
On review of a trial courts 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

1.

Statutory/ rule authority

735 ILCS 5/2-1203:
(a) In all cases tried without a jury, any party may, within 30
days after the entry of the judgment or within any further time
the court may allow within the 30 days or any extensions
thereof, file a motion for a rehearing, or a retrial, or
modification of the judgment or to vacate the judgment or for
other relief.
(b) Except as provided in subsection (a) of Section 413 of the
Illinois Marriage and Dissolution of Marriage Act, a motion
filed in apt time stays enforcement of the judgment except that
a judgment granting injunctive or declaratory relief shall be
stayed only by a court order that follows a separate application
that sets forth just cause for staying the enforcement.

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.

5.

Standard of decision
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).

6.

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

the reviewing court will not disturb the courts 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

1.

Statutory/ rule authority

735 ILCS 5/2-1206:
(a) Upon default, when the damages are to be assessed, the
court may hear the evidence and assess the damages without a
jury for that purpose. If interlocutory judgment is entered in an
action brought upon a penal bond, or upon any instrument in
writing, for the payment of money only, and the damages rest
in computation, the court may refer the matter to the clerk, to
assess and report the damages, and may enter judgment
therefor. However, either party may have the damages assessed
by a jury.
(b) Unless a jury has been waived, the trial court shall empanel
a jury to assess damages: (1) if the ruling on a post-trial motion
is in favor of a party entitled to recover damages and there is no
verdict assessing his or her damages; or (2) the reviewing court
remands 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 courts

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actions in accordance with the appellate courts 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 partys 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.

5.

Standard of decision
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.

6.

Standard of review
A jurys 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

1.

Statutory/ rule authority

735 ILCS 5/2-1205:
An amount equal to the sum of (i) 50% of the benefits provided
for lost wages or private or governmental disability income
programs, which have been paid, or which have become
payable 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 have
been paid, or which have become payable to the injured person
by any other person, corporation, insurance company or fund
in relation to a particular injury, shall be deducted from any
judgment in an action to recover for that injury based on an
allegation of negligence or other wrongful act, not including
intentional 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 a
right of recoupment through subrogation, trust agreement,
lien, or otherwise;
(3) The reduction shall not reduce the judgment by more than
50% of the total amount of the judgment entered on the
verdict;
(4) The damages awarded shall be increased by the amount of
any insurance premiums or the direct costs paid by the plaintiff
for such benefits in the 2 years prior to plaintiff's injury or
death or to be paid by the plaintiff in the future for such
benefits; and
(5) There shall be no reduction for charges paid for medical
expenses which were directly attributable to the adjudged
negligent 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 posttrial 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.

5.

Standard of decision
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 plaintiffs 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), affd, 222 Ill. 2d 147 (2006).

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ILLINOIS CIVIL PROCEDURE BETWEEN TRIAL AND APPEAL

6.

Standard of review
The trial courts 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.
A.

Motion for Stay

1.

Statutory/ rule authority

Motions for Stay

735 ILCS 5/2-1305:

A party intending to move to set aside any judgment, bond or
other proceeding may apply to the court or to the judge in
chamber for a certificate (which the judge may, in his or her
discretion, grant) that there is probable cause for staying
further proceedings until the order of the court on the motion.
Service of a copy of the certificate at the time of or after the
service of the notice of the motion stays all further proceedings
accordingly. In no case shall the judge grant the certificate if
the error complained of may, by the direction of the judge to
the clerk issuing the process, be corrected, but the judge shall
order and the clerk shall make the correction in the process,
nor unless the applicant has given notice of the motion to the
opposite party, or his or her attorney of record, if they or either
of them can be found in the county where the judgment was
entered.
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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ILLINOIS CIVIL PROCEDURE BETWEEN TRIAL AND APPEAL

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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ILLINOIS CIVIL PROCEDURE BETWEEN TRIAL AND APPEAL

5.

Standard of decision
Whether to issue a certificate for stay is within the trial courts discretion. 735 ILCS

5/2-1305.

6.

Standard of review
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

1.

Statutory/ rule authority

Illinois Supreme Court Rule 305:
(a) Stay of Enforcement of Money Judgments. The enforcement
of a judgment for money only, or any portion of a judgment
which is for money, shall be stayed if a timely notice of appeal
is filed and an appeal bond or other form of security, including,
but not limited to, letters of credit, escrow agreements, and
certificates of deposit, is presented to, approved by, and filed
with the court within the time for filing the notice of appeal or
within any extension of time granted under paragraph (c) of
this rule. Notice of the presentment of the bond or other form
of security shall be given by the judgment debtor to all parties.
The bond or other form of security ordinarily shall be in an
amount sufficient to cover the amount of the judgment and
costs plus interest reasonably anticipated to accrue during the
pendency of the appeal. If a form of security other than an
appeal bond is presented, the appellant shall have the burden
of demonstrating the adequacy of such other security. If the
court, after weighing all the relevant circumstances, including
the amount of the judgment, anticipated interest and costs, the
availability and cost of a bond or other form of security, the
assets of the judgment debtor and of the judgment debtors
insurers and indemnitors, if any, and any other factors the
court may deem relevant, determines that a bond or other form
of security in the amount of the judgment plus anticipated
interest and costs is not reasonably available to the judgment
debtor, the court may approve a bond or other form of security
in the maximum amount reasonably available to the judgment
debtor. In the event that the court approves a bond or other
form of security in an amount less than the amount of the
judgment plus anticipated interest and costs, the court shall
impose additional conditions on the judgment debtor to
prevent dissipation or diversion of the judgment debtors assets
during the appeal.
(b) Stays of Enforcements of Nonmoney Judgments and Other
Appealable Orders. Except in cases provided for in paragraph
(e) of this rule, on notice and motion, and an opportunity for
opposing parties to be heard, the court may also stay the
enforcement of any judgment, other than a judgment, or
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portion of a judgment, for money, or the enforcement, force

and effect of appealable interlocutory orders or any other
appealable judicial or administrative order. The stay shall be
conditioned upon such terms as are just. A bond or other form
of security may be required in any case, and shall be required
to protect an appellees interest in property.
(c) Extensions of Time. On motion made within the time for
filing the notice of appeal or within any extension granted
pursuant to this paragraph, the time for the filing and approval
of the bond or other form of security may be extended by the
circuit court or by the reviewing court or a judge thereof, but
the extensions of time granted by the circuit court may not
aggregate more than 45 days unless the parties stipulate
otherwise. A motion in the reviewing court for any extension of
time for the filing and approval of the bond or other form of
security in the circuit court must be supported by affidavit and
accompanied by a supporting record (Rule 328), if the record
on appeal has not been filed.
(d) Stays by the Reviewing Court. Except in cases provided for
in paragraph (e) of this rule, application for a stay ordinarily
must be made in the first instance to the circuit court. A motion
for a stay may be made to the reviewing court, or to a judge
thereof, but such a motion must show that application to the
circuit court is not practical, or that the circuit court has denied
an application or has failed to afford the relief that the
applicant has requested, and must be accompanied by
suggestions in support of the motion and a supporting record
(Rule 328), if the record on appeal has not been filed. If a stay
is granted by the reviewing court or a judge thereof, the clerk
shall notify the parties and transmit to the clerk of the circuit
court or administrative agency a certified copy of the order
granting the stay.
(e) Automatic Stay Pending Appeal of Termination of Parental
Rights.
(1) An order terminating the parental rights of any
person that is entered in a proceeding initiated under
the Juvenile Court Act of 1987 shall be automatically
stayed for 60 days after entry of the order of
termination. If notice of appeal is filed with respect to
the termination order within the 60 days, the automatic
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stay shall continue until the appeal is complete or the

stay is lifted by the reviewing court. If notice of appeal is
not filed within the 60 days, the automatic stay shall
expire.
(2) The automatic stay under this rule shall stay the
termination order to the extent that it would permit
entry of an order of adoption without the parents
consent or surrender, and shall also operate to stay the
termination order with respect to any power granted to
a person or agency to consent to an adoption. In all
other respects the termination order shall be unaffected.
For the purposes of proceedings under the Adoption
Act, a person appealing the termination of his or her
rights shall be treated as a person whose parental rights
have been terminated, except as provided in the first
sentence of this paragraph. Neither the appeal nor the
automatic stay of the termination order shall affect the
trial court's continuing jurisdiction over the care,
custody, visitation and support of the child, and a
guardian of the child may take any authorized action
other than consenting to the childs adoption.
(3) No bond shall be required with respect to a stay of
adoption pending appeal of termination of parental
rights.
(4)(A) A party to the Juvenile Court Act proceeding in
which a termination order was entered or a party to an
adoption proceeding delayed by the effect of this rule
may file a motion with the reviewing court to lift the
automatic stay of a termination order. The stay of an
order terminating parental rights may be lifted when it
is clearly in the best interests of the child on motion or
by the court sua sponte.
(B) Motions to lift an automatic stay must be
accompanied by suggestions in support of the motion
and shall be served on all parties to the Juvenile Court
Act proceeding and the parties to any related Adoption
Act proceeding, if known. If the movant is a party to an
adoption proceeding, the motion must include the
caption and case number of the adoption proceeding
and identify the court in which the action is pending.
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(C) Motions to lift an automatic stay must be

accompanied by a supporting record as provided in Rule
328. If the movant was not a party to the Juvenile Court
Act proceeding and is unable to provide the supporting
record, a decision on the motion shall be deferred until
after the record on appeal is filed.
(D) If a stay is lifted by the reviewing court or a judge
thereof, the clerk shall notify the parties and transmit to
the clerk of the trial court a certified copy of the order
lifting the stay. In the case of a motion filed by a party to
an adoption proceeding, the clerk shall also send a
certified copy of the order lifting the stay to the trial
judge in the adoption proceeding.
(f) When Notice of Appeal Is Amended. If a notice of appeal is
amended to specify parts of the judgment not specified in the
original notice of appeal, the stay of the judgment described in
the original notice of appeal does not extend to any added part
of the judgment, but a stay of the added part may be obtained
under the same conditions and by the same procedure set forth
above.
(g) Condition of the Bond. If an appeal is from a judgment for
money, the condition of the bond or other form of security shall
be for the prosecution of the appeal and the payment of the
judgment, interest, and costs in case the judgment is affirmed
or the appeal dismissed unless other terms are approved by the
court as provided in paragraph (a) above, except that the bond
of an executor or administrator shall be conditioned upon
payment in due course of administration and that the bond of
a guardian for a minor or a person under legal disability shall
be conditioned on payment as the guardian has funds therefor.
In all other cases, the condition shall be fixed with reference to
the character of the judgment.
(h) Changing the Amount, Terms, and Security of the Bond or
Other Form of Security After the Appeal is Docketed. After the
case is docketed in the reviewing court, that court or a judge
thereof upon motion may, consistent with the provisions of
paragraph (a) above, change the amount, terms or security of
the bond or other form of security, whether fixed by it or by the
circuit court, and failure to comply with the order of the
reviewing court or judge shall terminate the stay.
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(i) Appeals by Public Agencies. If an appeal is prosecuted by a

public, municipal, governmental, or quasi-municipal
corporation, or by a public officer in that persons official
capacity for the benefit of the public, the circuit court, or the
reviewing court or a judge thereof, may stay the judgment
pending appeal without requiring that any bond or other form
of security be given.
(j) Insurance Policy as Bond. The filing of an insurance policy
pursuant to section 392.1 of the Illinois Insurance Code (215
ILCS 5/392.1) shall be considered the filing of a bond for
purposes of this rule.
(k) Failure to Obtain Stay; Effect on Interests in Property. If a
stay is not perfected within the time for filing the notice of
appeal, or within any extension of time granted under
subparagraph (c) of this rule, the reversal or modification of the
judgment does not affect the right, title, or interest of any
person who is not a party to the action in or to any real or
personal property that is acquired after the judgment becomes
final and before the judgment is stayed; nor shall the reversal
or modification affect any right of any person who is not a party
to the action under or by virtue of any certificate of sale issued
pursuant to a sale based on the judgment and before the
judgment is stayed. This paragraph applies even if the appellant
is a minor or a person under legal disability or under duress at
the time the judgment becomes final.
(l) Land Trust Bond. The filing of a bond or other form of
security by a beneficiary under a land trust where the land trust
is a party shall be considered filing of a bond for purposes of
this rule.
(m) Filing with the Circuit Court Clerk. All original appeal
bonds or other forms of security, whether approved by the
circuit court or the reviewing court, shall be filed with the clerk
of 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).

5.

Standard of decision
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 courts discretion. Fick
v. Weedon, 244 Ill. App. 3d 413, 418 (4th Dist. 1993).

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6.

Standard of review
A circuit courts 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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