Bruntjen v. Bethalto Pizza, LLC

• Decision Date: 15 September 2014
• Docket Number: No. 5–12–0245.,5–12–0245.
• Citation: 18 N.E.3d 215
• Parties: Matthew BRUNTJEN, Plaintiff–Appellee, v. BETHALTO PIZZA, LLC, d/b/a Imo's Pizza; and Imo's Franchising, Inc., Defendants–Appellants (Kenneth Lyerla; Lisa Lyerla ; Jeremiah Greene; Jason Yelton; Metro East Distributing, Inc. ; Leonard Cummings, Jr.; and Tresorella's, Inc., Defendants).
• Court: United States Appellate Court of Illinois

18 N.E.3d 215

Matthew BRUNTJEN, Plaintiff–Appellee

v.BETHALTO PIZZA, LLC, d/b/a Imo's Pizza; and Imo's Franchising, Inc., Defendants–Appellants (Kenneth Lyerla; Lisa Lyerla ; Jeremiah Greene; Jason Yelton; Metro East Distributing, Inc. ; Leonard Cummings, Jr.; and Tresorella's, Inc., Defendants).

No. 5–12–0245.

Appellate Court of Illinois, Fifth District.

Sept. 15, 2014.

Gordon R. Broom, Theodore J. MacDonald, Jr., Michael L. Young, HeplerBroom, LLC, Edwardsville, Roderick T. Dunne, Linda J. Carwile, Karbal, Cohen, Economou, Silk & Dunne, LLC, Chicago, for Imo's Pizza.

Russell K. Scott, Greensfelder, Hemker & Gale, P.C., Belleville, for Imo's Franchising, Inc.

Roy C. Dripps, Charles W. Armbruster III, Michael T. Blotevogel, Armbruster, Dripps, for Winterscheidt & Blotevogel, Alton, for Appellee.

OPINION

Justice CHAPMAN

delivered the judgment of the court, with opinion.

¶ 1 The defendants, Bethalto Pizza, LLC, doing business as Imo's Pizza (Bethalto), and Imo's Franchising, Inc. (Imo's), appeal the December 13, 2011, judgment entered by the circuit court of Madison County after a jury verdict in favor of the plaintiff, Matthew Bruntjen, in the amount of $2,284,500.68, for damages he sustained in an automobile accident. The defendants' posttrial motions were denied on May 18, 2012. The defendants raise a number of issues on appeal. We affirm.

¶ 2 I. FACTS

¶ 3 On March 31, 2011, Matthew Bruntjen filed an amended complaint against, inter alios, Kenneth Lyerla, Bethalto, and Imo's. According to the amended complaint, on August 17, 2009, Kenneth Lyerla was delivering a pizza when he crossed the center line and hit the van in which the plaintiff was a passenger, causing a severe brain injury

. The amended complaint alleged that Lyerla was an employee of Bethalto and that Imo's was the franchising corporation that established policies and procedures for all Imo's franchisees, including Bethalto. The amended complaint included a count alleging vicarious liability against Imo's as well as a count alleging direct negligence against Imo's. In the direct negligence count, the plaintiff alleged that Imo's created an environment with its franchisees that put timely delivery of food products ahead of public safety, and allowed Lyerla to operate a motor vehicle to deliver pizzas on its behalf without first ascertaining that he was capable of safely operating a motor vehicle.

¶ 4 Lyerla conceded that his negligence caused the automobile accident at issue, and Bethalto admitted that it was responsible for the acts of Lyerla as his employer. However, Imo's, as a franchisor, contested its duty to the plaintiff via a motion to dismiss, a motion for summary judgment, and a motion for a directed verdict, all of which were denied. Subsequently, defendants filed motions for a mistrial, judgment notwithstanding the verdict, remittitur or a new trial on the issue of damages, and a new trial on all issues. The court's denial of these motions forms the basis of many of the issues raised in this appeal. As defendants' claims of error are numerous, we will further develop the facts necessary for disposition as we address each issue on appeal.

¶ 5 Imo's and Bethalto shared the same counsel at trial, but are represented by separate counsel on appeal. Imo's has expressly adopted and incorporated all arguments and points of error raised by Bethalto in this appeal, in addition to the arguments and points raised in its own brief.

¶ 6 II. ANALYSIS

¶ 7 A. Peremptory Challenges

¶ 8 The plaintiff named several additional defendants in the amended complaint: (1) Lisa Lyerla, the owner of the vehicle Kenneth Lyerla was driving at the time of the accident; (2) Jeremiah Greene, the driver of the van in which the plaintiff was a passenger; (3) Jason Yelton, the owner of the van; and (4) Metro East Distributing, Inc. (Metro East), the plaintiff's employer. When jury selection commenced, four defense attorneys participated. Lisa and Kenneth Lyerla were represented by one attorney; Jeremiah Greene and Jason Yelton were represented by a second attorney; Metro East was represented by a third attorney; and Bethalto and Imo's were represented by a fourth attorney. The trial court awarded eight peremptory challenges to the plaintiff and distributed eight peremptory challenges among the defendants by awarding two challenges to each of the four attorneys representing the defendants.

¶ 9 Before jury selection began, counsel for defendant Metro East stated as follows:

“I do want to state for the record—this is John Wendler. I represent Metro East Distributing. My understanding is that Metro East has two strikes, and I'm going to use them to the best advantage to get my client out of this case, which may—it could or might end up me striking people that I normally wouldn't strike as defendant. And even if I, to get a dismissal for my case, I need to work in concord with the plaintiff if I had to. So, I want to put it out in the open so anyone can make an objection.”

¶ 10 Counsel for Bethalto and Imo's then stated:

“I'm going to object if any of the parties who are named as a defendant are dismissed immediately after jury selection. I think that that would demonstrate gamesmanship and it would influence the jury selection process. So, I just want to make that clear. I think that by now the plaintiff should know who they're going to leave in the case or take out of the case.”

¶ 11 During the empanelment of the first four members of the jury, counsel for Bethalto and Imo's objected and moved for a mistrial, stating that plaintiff's counsel had just instructed Metro East on how to exercise its challenge. Counsel then went on to state that he believed that there had been some kind of deal struck where some of the defendants were going to use their challenges for the benefit of plaintiff in order to gain dismissals. The court denied counsel's motion for mistrial. Shortly thereafter, the court empanelled the first four jurors. This panel was accepted by counsel for Bethalto and Imo's. At that point, counsel still had an additional peremptory challenge. Jury selection concluded without any further objections.

¶ 12 The next morning, Metro East, Yelton, and Greene filed a joint motion for a good-faith finding of settlement, informing the court that the plaintiff had agreed to their dismissal in exchange for $20,000. Counsel for Bethalto and Imo's then stated that he was renewing his motion for mistrial. He also stated that he was objecting to the settlement as not being made in good faith because of how the challenges were exercised. Counsel for plaintiff stated that the settlement was in good faith and that the settlement amount was all the insurance coverage available. Plaintiff's counsel went on to state that none of the remaining defendants (Bethalto, Imo's, or Kenneth Lyerla) had identified any juror who was objectionable or how their rights were violated. Counsel for Bethalto and Imo's was then asked by the judge, “Is it your position that they should be kept in this trial throughout the whole thing, even though they have settled?” Counsel answered, “I am objecting to the good[-]faith finding.”

¶ 13 Counsel for Metro East responded:

“Everything done here was for the purpose of defending our client. They can no more claim that we can't take any and every avenue to defend our clients, than we can claim they did. Everything has been in the open. They had every opportunity to object to any jurors that were on the panel; they didn't do it.”

The judge then asked Bethalto and Imo's counsel, “So what do you suggest?” Counsel responded, “I suggest keeping them in.” The judge approved the settlement. Lisa Lyerla was subsequently dismissed from the suit. The case proceeded to trial against Kenneth Lyerla, Bethalto, and Imo's. Kenneth Lyerla was dismissed sometime prior to verdict.

¶ 14 Bethalto and Imo's contend that a new trial is warranted because they were deprived of their statutory allocation of peremptory challenges when two of the codefendant groups used their peremptory challenges for the benefit of plaintiff. Plaintiff responds that defendants were not deprived of their statutory allocations, because each side agreed to the allocation of peremptory challenges among themselves in compliance with the plain language of the statute.

¶ 15 Defendants based their motion for new trial, in part, on the trial court's denial of their motion for a mistrial. “ ‘Generally, a mistrial should be granted where an error of such gravity has occurred that it has infected the fundamental fairness of the trial, such that continuation of the proceeding would defeat the ends of justice.’ ” Lovell v. Sarah Bush Lincoln Health Center, 397 Ill.App.3d 890, 899, 341 Ill.Dec. 638, 931 N.E.2d 246 (2010)

(quoting People v. Bishop, 218 Ill.2d 232, 251, 300 Ill.Dec. 107, 843 N.E.2d 365 (2006) ). A trial court's denial of a motion for a mistrial will not be disturbed unless there has been a clear abuse of discretion. Id.

¶ 16 Section 2–1106 of the Illinois Code of Civil Procedure

provides, in relevant part:

“Each side shall be entitled to 5 peremptory challenges. If there is more than one party on any side, the court may allow each side additional peremptory challenges, not to exceed 3, on account of each additional party on the side having the greatest number of parties. Each side shall be allowed an equal number of peremptory challenges. If the parties on a side are unable to agree upon the allocation of peremptory challenges among themselves, the allocation shall be determined by the court.” 735 ILCS 5/2–1106(a)

(West 2010).

While defendants couch their argument in terms of not receiving their statutory allocation, we agree with plaintiff that the plain language of the statute was adhered to because each side was given the same number of challenges and the defendants agreed to the allocation among themselves.

¶ 17 Defendants essentially concede this point when they state in their brief that “the trial court correctly allocated...