Doe v. Parrillo

• Decision Date: 28 September 2020
• Docket Number: No. 1-19-1286,1-19-1286
• Citation: 449 Ill.Dec. 72,178 N.E.3d 679,2020 IL App (1st) 191286
• Parties: Jane DOE, Plaintiff-Appellee, v. Beau PARRILLO Defendant-Appellant.
• Court: United States Appellate Court of Illinois

2020 IL App (1st) 191286

178 N.E.3d 679

449 Ill.Dec. 72

Jane DOE, Plaintiff-Appellee,

v.Beau PARRILLO Defendant-Appellant.

No. 1-19-1286

Appellate Court of Illinois, First District, First Division.

Opinion filed September 28, 2020

Ronald F. Neville, Terence J. Mahoney, and Jennifer Mann, of Neville & Mahoney, of Chicago, for appellant.

Daniel J. Voelker, of Voelker Litigation Group, of Chicago, for appellee.

JUSTICE HYMAN delivered the judgment of the court, with opinion.

¶ 1 In every matter an attorney makes a countless number of choices: some tactical and some inconsequential, some immediate and some prospective, some deliberative and well-informed and some hasty and ill-informed. Together the combination of choices drives the matter toward resolution. Counsel for defendant chose to let the jury trial proceed without their participation or a court reporter. Unfortunately for the defendant, these and other choices led to a multi-million-dollar verdict. Different choices might have led to a different result. In cases like this case, we do not serve as a safety net for bad choices.

¶ 2 Jane Doe sued Beau Parrillo for allegedly physically and sexually assaulting her. The evening before trial, one of Parrillo's counsel sought a 30-day to 60-day continuance, claiming her mother had a medical emergency and two unnamed witnesses were unavailable. The day of trial she added another basis—an affidavit from Parrillo stating that he had traveled to Florida to be with his ailing father. The trial judge refused to hear the motion under a local rule giving the presiding judge authority over continuances of that length. Although Parrillo's counsel had opportunities to appear before the presiding judge, counsel failed to do so. Trial proceeded without Parrillo and his counsel, though counsel could have appeared. The jury awarded Doe $1 million in compensatory damages and $8 million in punitive damages. After trial, Parrillo admitted that his affidavit contained falsehoods, including that he remained in Chicago during the trial. Nevertheless, he asked the trial court to vacate the judgment and grant him a new trial. The trial court declined.

¶ 3 Parrillo claims the trial court abused its discretion by (i) refusing to rule on his motion for a continuance or allowing him to obtain a ruling from the presiding judge and (ii) conducting a jury trial in Parrillo's absence and without a court reporter. He also asserts that the trial court committed reversible error by (i) conducting a jury instructions conference without his attorney present, (ii) tendering improper jury instructions, (iii) improperly admitting medical records, and (iv) denying his motion for a mistrial. Finally, Parrillo contends that the $9 million award is excessive. Parrillo asks us to vacate the judgment and remand for a new trial.

¶ 4 We find that the court did not abuse its discretion in declining to give Parrillo more time to seek a continuance. Also, the decision to hold the trial in absence of Parrillo and his counsel did not violate Parrillo's due process rights or present grounds for a mistrial because he and his attorneys could have participated but voluntarily declined. Because his attorneys did not participate, Parrillo waived alleged evidentiary errors and errors in the jury instructions. Finally, we reverse the $8 million punitive damages award as excessive and reduce it to $1 million.

¶ 5 BACKGROUND

¶ 6 It is difficult to discern exactly what occurred in this proceeding between January 13, when Parrillo first sought a continuance and January 15, when the jury entered its verdict. This is due in no small part to the absence of a trial transcript. We rely primarily on the transcript and documents from the posttrial hearing to piece together what transpired.

¶ 7 Doe's Complaint

¶ 8 Doe filed her initial five-count complaint on December 15, 2016, alleging that between October 5, 2015 and December 12, 2015, her former boyfriend, Parrillo, assaulted her four times by choking her, striking her with a closed fist in the face and mouth, and hitting her in the head with a glass carafe. She also alleged that on March 23, 2016, Parrillo forcibly restrained her while sexually assaulting her. Doe amended her complaint to request punitive damages in addition to compensatory damages. Parrillo denied all the allegations.

¶ 9 January 13

¶ 10 On January 7, 2019, after several years of discovery and delays, the trial court entered an order certifying the case as ready for trial on January 14. Parrillo's attorney, Allison Muth, was present in court and did not object. Then on the eve of trial, she sought to delay it by 30 to 60 days. On January 13 at about 10:50 p.m., Muth attempted to electronically file two motions. The first was the appearance by attorney Robert Holstein, who was retained the day before to assist at trial. The second was an emergency motion for a continuance, which stated in part that (i) Holstein needed additional time to prepare for trial, (ii) two "critical eyewitnesses" were unavailable during the week of January 14, and (iii) Muth's mother was in failing health, and Muth would be unable to adequately prepare for or attend the trial, which was expected to take at least three days. Muth planned to present the motion during the presiding judge's emergency call at 11:00 a.m. the next morning.

¶ 11 January 14

¶ 12 At 10:00 a.m. on January 14, the assignment judge sent the case to Judge James Varga for trial. Holstein was in the courtroom; Muth was not. Holstein did not step up or inform the assignment judge that Muth intended to ask for a continuance of several weeks. Holstein later said he did not know if his appearance was on file and was unsure of the parties' readiness for trial, though at the time he should have known of Muth's attempt to file the motions the night before.

¶ 13 About an hour later, Muth tried to present her motion for a continuance to the presiding judge. The presiding judge's clerk allegedly told Muth of the case's assignment to Judge Varga and advised her to present the motion to him.

¶ 14 Muth went to Judge Varga's courtroom. She tried to present him with her motion for a continuance; Judge Varga declined to hear it. Judge Varga told Muth that under Cook County Circuit Court General Administrative Order 16-2 (GAO 16-2), after a case has been set for a trial, motions for a continuance may only be heard by the presiding judge for the Law Division. Specifically, GAO 16-2 states, "All motions to continue trial on a case assigned to the Master Calendar Section must be presented to the Presiding Judge of the Law Division or his or her designee on the appropriate Courtroom 2005 motion call." Cook County Cir. Ct. Gen. Admin. Order 16-2 (Apr. 1, 2016). Judge Varga also informed Muth that her motion was not on file and recessed until 1:30 p.m. to allow her to determine the status of the motion.

¶ 15 Revised Motion for Continuance

¶ 16 Muth went to the clerk's office and learned that the motion for a continuance and Holstein's appearance, which she attempted to e-file the night before, had been rejected because she erroneously checked a "confidential" box. (The record, however, indicates Holstein's appearance was filed at 12:00 A.M. on January 14.) Muth refiled Holstein's appearance and filed a revised emergency motion for a continuance. The new motion again cited Muth's mother's health issues, the unavailability of two eyewitness, and Holstein's unpreparedness for trial. But the motion now included the "fact" Parrillo had flown to Florida that morning to be with his ill father and was unavailable for trial.

¶ 17 Muth attached two affidavits to the motion. Her own affidavit stated that her mother was in critically poor health, she and her brother were the primary caregivers, her brother was unavailable, and she would not be able to return full time to her law practice for a few weeks.

¶ 18 The second affidavit, from Parrillo and dated January 14, stated that (i) he received a call at about 10:30 p.m. on January 13, informing him that his father had been hospitalized in Florida, (ii) he took an 8:20 a.m. flight to Florida on January 14, (iii) he informed his attorney that morning and asked her to request a continuance, and (iv) he would return to Chicago as soon as possible to attend the trial. (Parrillo would later acknowledge he lied in his affidavit; he had not flown to Florida and was in Chicago all week.)

¶ 19 Muth tried to present her revised emergency motion to the presiding judge, but his courtroom was closed for lunch. So, she returned to Judge Varga's courtroom at 1:30 p.m., and asked him to rule on the motion. Judge Varga again declined, citing GAO 16-2.

¶ 20 Doe's attorney made an oral motion for default. Judge Varga denied the motion without prejudice. But rather than begin jury selection, Judge Varga continued the case until the following morning, telling the attorneys that he would start jury selection at 9:30 a.m. and break at 11:00 a.m., so Muth could present her motion for a continuance to the presiding judge. Muth agreed.

¶ 21 January 15

¶ 22 Judge Varga convened court at 9:30 a.m. on January 15. Holstein was in the courtroom; Muth was not. According to an affidavit from Muth's mother, which was filed with a posttrial motion for a new trial, Muth was with her mother that morning. Muth's mother stated that she was having shortness of breath, felt anxious, and could not sleep. Although she lived with her son, she said he worked nights and was sleeping. So, she texted Muth and asked her to come over. Muth helped her use her nebulizer and CPAP machine and verbally calmed her down. Muth stayed until 10:15 a.m., when her brother woke up and her mother was no longer in crisis. Muth says she tried to call Holstein, the trial court, and the Office of the Cook County Clerk to alert the court she would be late that morning, but no one answered.

¶ 23 Back in Judge Varga's courtroom, Holstein told the judge he had not spoken to Muth, but she would be...