Palanti v. Dillon Enterprises, Ltd., 1-97-4531

• Decision Date: 16 February 1999
• Docket Number: No. 1-97-4531,1-97-4531
• Citation: 707 N.E.2d 695,303 Ill.App.3d 58,236 Ill.Dec. 568
• Parties: , 236 Ill.Dec. 568 Angelo PALANTI, Plaintiff-Appellant, v. DILLON ENTERPRISES, LTD., Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 695

707 N.E.2d 695

303 Ill.App.3d 58, 236 Ill.Dec. 568

Angelo PALANTI, Plaintiff-Appellant, v. DILLON ENTERPRISES, LTD., Defendant-Appellee.

No. 1-97-4531.

Appellate Court of Illinois First District, Second Division.

Feb. 16, 1999.

Collins & Bastounes, Chicago; Dean N. Bastounes, James Gandros, for Appellant.

O'Donnell, Murtauag & Coghland, Chicago; Peter D. Tarpey, for Appellee.

Justice GORDON delivered the opinion of the Court:

Plaintiff brings this appeal from the trial court's entry of judgment on a jury verdict for defendant in his personal injury action. He contends that the jury verdict was tainted because (1) the court improperly instructed the jury during its deliberations, and (2) a note that the jury sent out during its deliberations revealed that physical coercion had occurred in the jury room in arriving at the verdict. For the reasons explained below, we find the errors have been waived and, further, are without merit. Accordingly, we affirm.

FACTS

In May 1992 plaintiff Angelo Palanti filed suit against defendant Dillon Enterprises, Ltd. Plaintiff's complaint alleged that plaintiff was injured when he slipped and fell in a parking lot near which defendant was doing remodeling work. The case went to trial in July 1997, and the jury returned a verdict in favor of defendant. The record contains neither a transcript nor a bystander's report of the trial, any pre-trial proceedings, or of any proceedings which occurred during the jury deliberations. Because of this state of the record, the only indications of what transpired before the jury reached its verdict are plaintiff's post-trial motion, the argument at the hearing on that motion (which was transcribed), the common-law record (including the notes which the jury sent out during its deliberations), and the court's written order denying the motion.

Plaintiff's post-trial motion contended that the verdict was against the manifest weight of the evidence and that plaintiff was entitled to a new trial because of error committed by the trial court in certain actions it took during jury deliberations. Specifically, plaintiff contended that the court committed reversible error "by allowing these proceedings to continue subsequent to receipt of notation from Jury foreman, on August 1, 1997, at or about the hour of 5:00 p.m." Plaintiff attached the jury note to which he referred as an exhibit to his motion; it read in full as follows:

"We have one juror who has stated emphatically he will not change his mind and basically refuses to deliberate in good faith. At this point, the remaining eleven are of the firm belief that there will never be any unanimous decision. This is not through lack of effort. One person refuses to consider the FACTS and several people are becoming agitated to the point of possible physical confrontations.

"If you have any suggestions that will resolve this problem we need to hear them now.

"I'm not sure what you are able to legally do to offer myself or other jurors advice or solving this stalemate.

"We simply cannot deliberate with a single juror if he refuses to do so." (Emphasis in original.)

The note was signed by the jury foreman. Plaintiff contended in his post-trial motion that the court erred when it proceeded to poll the jury without a court reporter present and to give the Prim instruction "as per I.P.I. 1.05," ¹ even though counsel for both plaintiff and defendant "expressed opinion that mistrial should be declared."

Plaintiff further alleged in the post-trial motion that at or about 6:30 p.m., the jury sent out another note; the court again conferred with counsel for plaintiff and defendant; and the court again instructed the jury "as per I.P.I. 1.05." In addition, plaintiff contended in his motion that "it was agreed that mistrial would be granted should jury not return by 8:00 p.m." Nevertheless, plaintiff stated, the court "held [the] jury beyond the agreed time and at approximately 10:15 p.m. verdict was returned." Plaintiff argued that by giving the jury Illinois Pattern Jury Instruction 1.05 twice, orally, without a court reporter present, "no evidence exists as to the propriety of instruction and accuracy of same." Plaintiff stated that the court "did hasten the action of the jury, irrespective of its worthy motive and * * * by so doing its conduct was improper."

At the hearing on plaintiff's motion, in addition to repeating a number of factual assertions from the motion, plaintiff also asserted that the jury foreman was a police officer and was in possession of a weapon in the jury room. He also contended that the jury had deliberated from approximately 1:00 to 6:30 p.m. on Thursday, July 31, and from approximately 9:30 a.m. to 10:15 p.m. on Friday, August 1, before returning a verdict. In his reply argument in support of the motion, plaintiff further stated as follows:

"And I would like to bring to the Court's attention that IPI 1.05, as read by the Court, uses the term violence. Not physical, but violence. That is reflected in 1.05. In the note that we got back from the juror [sic ], they're close to physical confrontation."

The common-law record contains the actual notes the jury sent out, including the note sent out at 5:00 p.m. on August 1 (the second day of deliberations), the text of which has been set out above. It also contains the text of another jury note which states on its face that it was sent out at 6:00 p.m. on August 1 (and is most likely the note to which plaintiff referred in his post-trial motion as having been sent out [303 Ill.App.3d 62] at 6:30, as the record contains no other notes sent out at or near that time). This note requested an answer to the following question:

"Are we allowed to consider at all the contract between Dillon + Russ Brun? It is an essential element in our group decision making process. In other words, is that contract part of the evidence we are supposed to consider?"

Written on the bottom of the note in a different handwriting is as follows:

"You have heard the testimony and have been presented with the evidence in court. You are to rely on your recollection of that evidence. The court has also instructed you on the law in this case. You are to decide this case based upon the evidence and the law."

The common-law record also contains a third jury note, which stated on its face that it had been sent earlier on August 1, at 2:17 p.m. (No mention was made of this note in plaintiff's written post-trial motion or in the argument thereon.) It read as follows:

"We are all in agreement except for one of us. It is 11-1. However, we have been at 11-1 for a very long time now, dating back to last night. We have reviewed all the evidence and we are still at 11-1. If you could please meet with us to clarify the law or something of that nature, maybe that would help. Thank you."

The trial court denied plaintiff's post-trial motion in its entirety, and issued a memorandum order detailing its reasoning and making a number of factual findings. The court stated that trial had commenced on July 21, 1997, and the case went to the jury in the afternoon of July 31. After adjourning in the "early evening" of July 31, the jury reconvened on Friday, August 1, 1997, at approximately 10:00 a.m.

The court stated in its memorandum that during Friday afternoon, "the court received a note from the jury regarding their difficulties in reaching a verdict." After reviewing the note with the attorneys for both parties, court and counsel all "agreed that the jury be instructed under I.P.I. 1.05 (the 'Prim' instruction) * * * and agreed with the reading of the instruction to the jury," after which the jury resumed deliberations.

The memorandum recounted that subsequently, at approximately 5:00 p.m., the jury submitted another note regarding their deliberations. After reviewing the note with counsel, the court "proposed a response, which was agreed to by counsel. * * * Both counsel complimented the court on the manner in which the inquiry by the jury was addressed." Later, at approximately 8:00 p.m., after the jury had requested dinner in order to continue deliberating, "pursuant to agreement with counsel, the court brought the jury into the courtroom, with both counsel present. The foreperson informed the court that the jury wished to continue deliberating." Thereafter, at 9:05 p.m., the jury returned a unanimous verdict in favor of defendant. The court polled each juror on its own initiative and subsequently, neither counsel requesting any further action, the jury was discharged.

The court noted that during Friday afternoon the court had inquired of counsel for both parties if a court reporter would be present, but neither party arranged for one. The court also specifically stated that plaintiff did not object to proceeding without a court reporter, did not request an opportunity to secure a reporter's services, and raised no question regarding the lack of a reporter before filing his post-trial motion. Further, the court stated that although the numerical division of the jury was revealed in the first and second notes, that information was unsolicited by the court, in that it did not at any time request the jury to disclose its numerical division. The court also stated that plaintiff's representation that plaintiff, defendant, and the court had agreed that a mistrial would be declared if the jury had not reached a verdict by 8:00 p.m. was "unfounded and clearly not accurate." Finally, the court found that the verdict was not against the manifest weight of the evidence.

Plaintiff appeals, contending that the cause must be remanded for a new trial because consideration of the entirety of the circumstances reveals that the jury was coerced into reaching a verdict. Plaintiff contends that the mere fact that the Prim instruction was given twice constituted reversible error in that doing so coerced the jury into reaching a verdict. Plaintiff argues that the...