Appeal from the Circuit Court of Cook County; the Hon. James
E. Sullivan, Judge, presiding.
JUSTICE WHITE DELIVERED THE OPINION OF THE COURT:
Rehearing denied August 20, 1984.
Defendant, William H. Malone, appeals pursuant to Supreme Court Rule 306 (87 Ill.2d R. 306) from the order of the circuit court of Cook County which set aside a jury verdict for plaintiff, Richard Grunsten, doing business as Gane, in the amount of $12,000 and ordered a new trial on the question of damages only. The issues presented for review are: (1) whether the circuit court clearly abused its discretion in granting a new trial based on its conclusion that plaintiff was denied a fair trial, and (2) whether the circuit court erred in granting a new trial on the issue of compensatory damages only.
Plaintiff brought this action against defendant, seeking damages for the loss of personal property and for the destruction of his business. Plaintiff's fourth amended complaint contained four counts; however, only counts II and III are relevant to this appeal. Count II set forth a theory of trespass to land, in that defendant, as landlord, trespassed upon plaintiff's business premises, destroying his personal property and damaging his business. This count prayed for compensatory damages in the sum of $225,000 and punitive damages in the sum of $225,000. Count III asserted a theory of liability based upon wilful and wanton negligence, and the prayer for relief of this count was identical to the prayer for relief contained in count II.
At the close of evidence, the circuit court determined that the evidence would not support an award of punitive damages and refused to allow that issue to go to the jury. The circuit court also granted plaintiff's motion for a directed verdict on the issue of liability, finding that the evidence of liability was overwhelming. Thus, the only issue decided by the jury was the amount of damages.
The jury determined that plaintiff incurred damages in the amount of $12,000. Subsequently, plaintiff filed his motion for new trial alleging that plaintiff did not receive a fair trial. In its order granting plaintiff a new trial, the circuit court found that plaintiff did not receive a fair trial in the following respects:
"(a) counsel did not have sufficient time following the jury instruction conference to prepare for final argument;
(b) counsel did not have the opportunity to consider the instruction on the measure of damages as modified by the Court prior to argument; and
(c) based upon the evidence, the jury instructions did not sufficiently instruct the jury on compensatory damages."
The circuit court's order specifically found, however, that the award of the jury was not against the manifest weight of the evidence.
The circuit court's order granting a new trial was based upon events which occurred after all the evidence was heard in the court below; however, certain events prior to that time are relevant. The case was assigned for trial on November 12, 1982. On that date, the trial judge stated to counsel for both parties that he wanted the trial in the instant case to be completed on or before November 24, 1982 (the day before Thanksgiving Day), because the court had already scheduled a trial for the following Monday. On Monday, November 15, 1982, the jury was selected. From Wednesday, November 17, 1982, until shortly after 12 o'clock noon on Wednesday, November 24, 1982, the parties presented evidence to the jury. During the afternoon of Wednesday, November 24, 1982, the circuit court held the jury instruction conference, and shortly thereafter, closing argument began.
The transcript of proceedings shows that on November 24, 1982, immediately following a noon recess, but before the jury instruction conference, plaintiff moved for a directed verdict on the issue of liability. Plaintiff's motion was granted. At the instruction conference which followed immediately thereafter, defendant tendered the following instruction on the question of damages:
"You must fix the amount of money which will reasonably and fairly compensate the plaintiff for any of the following elements of damage proved by the evidence to have resulted from the conduct of the defendant.
If you find that all or some of plaintiff's personal property was totally destroyed, the measure of damages is the reasonable value of such property at the time of destruction. If you find that all or some of plaintiff's personal property was not totally destroyed but the damage was not capable of being repaired, the measure of damages is the difference between the fair market value of such property immediately before and the scrap value immediately after the damage. If you find that all or some of plaintiff's personal property was not totally destroyed and was capable of being repaired, the measure of damages is the lesser of the reasonable expense of necessary repairs to the property ...