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Hengels v. Gilski

OPINION FILED SEPTEMBER 27, 1984.

WILBERT HENGELS, PLAINTIFF-APPELLANT,

v.

ANTHONY GILSKI ET AL., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County; the Hon. John M. Breen, Jr., Judge, presiding.

JUSTICE JIGANTI DELIVERED THE OPINION OF THE COURT:

Following an automobile accident, the plaintiff, Wilbert Hengels, filed this personal injury action against the defendants, Anthony Gilski, and Gilski's employer, the Harold M. Pitman Company. Summary judgment was granted in favor of the employer. A jury returned a verdict in favor of the defendant Gilski. The plaintiff now appeals and raises several allegations of trial error for this court's review.

The plaintiff initially maintains that the trial judge abused his discretion in refusing to grant a change of venue to the plaintiff. The record discloses that during a pretrial discovery deposition of one of the plaintiff's witnesses, defense counsel called the trial judge's home to secure a ruling. Defense counsel asked, "Is this Pat?" or something to that effect, to the person who answered the telephone. After the call was completed, defense counsel stated for the record that he had met Pat Breen, the judge's wife, in the past and that she was the sister of a ward committeeman.

At the close of opening arguments and after the trial judge had ruled upon pretrial motions, plaintiff's counsel appeared dissatisfied with certain rulings made by the trial court. Plaintiff's counsel stated, "Judge, with all due respect, you are interrupting, you are being argumentative, you are forming conclusions; and I think perhaps we should take a change of venue." The court then responded, "First of all, you have already taken one *fn1; and also, I have already ruled on substantive matters. Mr. Trinley, there is nothing wrong with my making comments while you are arguing, if it assists me to arrive at what I believe to be a correct conclusion." During this interchange, no mention was made by plaintiff's counsel of any alleged acquaintance between defense counsel and the trial judge or his wife. In fact, the transcript of the trial court proceedings discloses no reference to defense counsel's acquaintance with Mrs. Breen until the plaintiff filed a petition for a change of venue following entry of the jury's verdict. *fn2 This petition was apparently filed because the plaintiff did not believe he would receive a fair hearing at the post-trial stage and he wished to have a different judge hear his post-trial motions. On the same date the petition was filed, the plaintiff also propounded interrogatories to the trial judge, asking him to describe in detail any relationship he or his family had with defense counsel. The petition for a change of venue was denied and the trial judge never responded to the interrogatories.

Approximately three months following the jury's verdict, the plaintiff presented a second written petition for a change of venue. In this petition, the plaintiff requested the trial judge to recuse himself from the trial which had already occurred and which resulted in a jury verdict against the plaintiff. The petition was denied and the trial judge stated in his order concerning the plaintiff's post-trial motions that he and defense counsel were acquainted, but not friends; that he and defense counsel did not socialize with one another; that he had never known where defense counsel lived other than that they lived in the same parish before the judge moved 17 years previously; and that "this matter has been inflated beyond all reason * * *."

The plaintiff now raises a number of related arguments on appeal, alleging that the trial judge was prejudiced in favor of the defense and therefore abused his discretion when he refused to grant a change of venue. In essence, the plaintiff maintains that the trial judge possessed a legal duty to inform the plaintiff that he knew defense counsel; that the trial judge refused to permit inquiry into the alleged relationship and interfered with the plaintiff's efforts to make a record in that regard; and that the plaintiff had an absolute right to a change of venue once he set forth specific allegations of prejudice. The plaintiff further argues that the trial judge's alleged prejudice was demonstrated by the manner in which he denied the plaintiff's petition for a change of venue and by the nature of certain rulings made throughout the course of the trial.

• 1 As a procedural matter, we do not believe that the plaintiff's oral comments following opening arguments or his two post-trial petitions constituted legally sufficient petitions for a change of venue under the Illinois Civil Practice Act, the law in effect during the relevant time periods in this case. In regard to the oral comments, the Act provides that every application for a change of venue shall be set forth in a petition verified by the affidavit of the applicant. (Ill. Rev. Stat. 1981, ch. 110, par. 503, presently codified at Ill. Rev. Stat. 1983, ch. 110, par. 2-1001(c); M. Loeb Corp. v. Brychek (1981), 98 Ill. App.3d 1122, 424 N.E.2d 1193.) An unsupported oral request for a change of venue will not suffice to fulfill the Act's requirements. (Board of Trustees v. Cook County College Teachers' Union (1976), 42 Ill. App.3d 1056, 356 N.E.2d 1089; Peck v. Rockford Life Insurance Co. (1973), 9 Ill. App.3d 568, 292 N.E.2d 528.) Because this procedure was not followed in the case at bar, we believe that the plaintiff's comments were without legal effect and did not constitute a petition for a change of venue under the Act.

• 2 While the plaintiff argues that this "oral petition" was later "formalized" approximately four months later, he cites no authority, and indeed we have found none, that a party need only comply with the terms of the Act after an entire trial has been conducted and an adverse jury verdict has been entered against him. *fn3 Furthermore, while the plaintiff stated orally that the judge was interrupting, being argumentative and forming conclusions, it was only at the post-trial stage that the plaintiff set forth his allegation that the trial judge was prejudiced because of an alleged relationship with defense counsel. Where the oral comments and the post-trial petitions did not even concern the same subject matter, we do not see how the post-trial petitions could "formalize" the oral comments. The plaintiff was statutorily bound to submit a verified petition for a change of venue when presenting a motion in that regard *fn4 and his attempt to have a petition, filed nearly four months after his oral comments, relate back to "formalize" his oral comments is legally insufficient under the Act. *fn5

• 3 We also do not believe that either of the plaintiff's two written petitions were timely filed under the Act. Section 503 of the Act provides that:

"A petition for change of venue shall not be granted unless it is presented before trial or hearing begins and before the judge to whom it is presented has ruled on any substantial issue in the case, provided that if any grounds for such change of venue occurs thereafter, a petition for change of venue may be presented based upon such grounds." (Emphasis added.) (Ill. Rev. Stat. 1981, ch. 110, par. 503, presently codified at Ill. Rev. Stat. 1983, ch. 110, par. 2-1001(c).)

• 4 In the case at bar, it is conceded that all of the plaintiff's alleged petitions for a change of venue were presented after substantial issues in the case had been ruled upon. Therefore, the above underscored section of the statute must be satisfied in order for the plaintiff to prevail on a petition for change of venue. If a petition for a change of venue is presented after a substantial issue in the case has been ruled upon, the petition should be granted only in the sound discretion of the trial court. (Robinson v. Robinson (1981), 100 Ill. App.3d 437, 429 N.E.2d 183; Templeton v. First National Bank (1977), 47 Ill. App.3d 443, 362 N.E.2d 33.) A party does not possess an absolute right to a change in venue after substantial issues in the case have been ruled upon. (See Templeton v. First National Bank (1977), 47 Ill. App.3d 443, 362 N.E.2d 33; In re Marriage of Pruitt (1981), 101 Ill. App.3d 755, 428 N.E.2d 732.) Furthermore, a petition for change of venue must be offered at the earliest practicable moment. (Fennema v. Joyce (1972), 6 Ill. App.3d 108, 285 N.E.2d 156.) The existence of specific allegations as grounds for prejudice does not extend the time for filing a petition for a change of venue indefinitely. (M. Loeb Corp. v. Brychek (1981), 98 Ill. App.3d 1122, 424 N.E.2d 1193.) In other words, the Venue Act "does not contemplate that a litigant be permitted first to form an opinion that the trial court might be unfavorably disposed towards his cause, and then charge the court with prejudice as a basis for a change of venue." Templeton v. First National Bank (1977), 47 Ill. App.3d 443, 446, 362 N.E.2d 33; see also In re Marriage of Kozloff (1984), 101 Ill.2d 526, 463 N.E.2d 719.

In the case at bar, the sole allegation of prejudice cited to this court by the plaintiff is defense counsel's alleged acquaintance with the trial judge and his wife. The plaintiff first became aware of the alleged relationship at least two days prior to trial. However, he did not file a formal petition for a change of venue until nearly four months later, by which time a trial on the merits had been conducted and the plaintiff had suffered an adverse jury verdict. The alleged relationship was not mentioned by plaintiff's attorney in his oral request for a change of venue during the trial and came to the court's attention for the first time in the plaintiff's post-trial petitions. Under these facts, we do not believe that the plaintiff filed his petitions within a reasonable length of time, and we therefore find that the trial court properly exercised its discretion in denying the plaintiff's post-trial petitions for a change of venue.

Furthermore, even if we were to assume that the plaintiff's petitions for a change of venue were properly and timely filed, we still believe that the trial judge acted well within his discretion in denying them. The plaintiff was required to set forth specific allegations of prejudice in his petitions because his requests for a change of venue occurred after substantial issues in the case had been ruled upon. (See Templeton v. First National Bank (1977), 47 Ill. App.3d 443, 362 N.E.2d 33.) In his oral statements following opening arguments, the plaintiff only stated that the judge was interrupting, being argumentative and forming conclusions. These were not specific allegations of prejudice. (See Robinson v. Robinson (1981), 100 Ill. App.3d 437, 429 N.E.2d 183.) In his post-trial petitions, the only evidence of prejudice supporting the plaintiff's allegations was that defense counsel knew the name of the judge's wife. We do not believe that this is a specific allegation of prejudice capable of supporting a petition for a change of venue. In a large legal community with its various bar associations and professional organizations, it appears inevitable that judges, attorneys and their respective spouses would become acquainted with one another over a period of years. When the trial judge in the case at bar stated for the record that he and defense counsel were acquainted but not friends, that he and defense counsel did not socialize with one another, and that he had never known where defense counsel lived other than that they had lived in the same parish before the judge moved 17 years previously, that should have been the end of the matter. Unfortunately, it was not. We agree with the trial judge's observation that "this matter has been inflated beyond all reason," and we do not think that the fact that defense counsel knew the judge's wife's name can lead this court to infer as a matter of law that the trial judge was prejudiced against the plaintiff and his counsel. Consequently, we believe that the trial court properly exercised its discretion to deny the plaintiff's petitions for a change of venue.

• 5 Having found that the plaintiff's alleged petitions were not properly and timely filed and that they could not have prevailed in any event, we shall summarily address certain arguments raised on appeal by the plaintiff. The plaintiff maintains that the trial judge interfered with the plaintiff's efforts to make a record on the issue of prejudice by failing to answer interrogatories and by denying plaintiff's counsel an opportunity to make statements for the record at the post-trial stage. The plaintiff has cited no authority that a trial judge must answer interrogatories propounded by the attorneys arguing before him and we cannot find any support in the law for the plaintiff's contention. As we have already stated, the trial judge's explanation of his acquaintance with defense counsel should have put the matter to rest. Furthermore, the record reveals that plaintiff's counsel was not allowed to make statements at the post-trial stage because the parties had waived oral arguments and agreed that the matter would proceed upon the written post-trial motions filed by the parties. Accordingly, we find no merit in the plaintiff's argument.

• 6 The plaintiff further contends that the trial judge's alleged prejudice was demonstrated by the manner in which he denied the plaintiff's petitions for a change of venue and by the nature of certain rulings made throughout the course of the trial. We disagree. "Wide latitude must be allowed a trial judge in conducting a trial, and only where his conduct or remarks are of the sort that would ordinarily create prejudice in the minds of the jurors is reversible error present." (Vinke v. Artim Transportation System, Inc. (1980), 87 Ill. App.3d 400, 412, 408 N.E.2d 1112, 1122.) All of the stages of the instant litigation were marked by acrimonious and contentious interchanges between the attorneys. In its attempt to keep these heated exchanges to a minimum, the trial court dealt with the attorneys' comments firmly and reasonably. We find no support in the record that the judge's remarks were of the sort that would create prejudice in the minds of the jurors and we cannot state that any instance of reversible error was present.

• 7 The plaintiff next argues on appeal that the trial judge abused his discretion and committed reversible error when he failed to enter discovery sanctions against the defendant under Illinois Supreme Court Rule 219 (87 Ill.2d R. 219). The plaintiff cites three discovery violations perpetrated by the defendant, alleging that the defendant falsely answered two interrogatories and testified falsely at one point during his discovery deposition. The plaintiff's brief is somewhat unclear as to what remedy he asks this court to impose, but it was alleged during oral arguments that he seeks either an outright reversal of the jury's verdict or a new trial.

We shall first examine the discovery violations cited by the plaintiff. The defendant was given an interrogatory which inquired whether any photographs had been taken of the vehicles in question. The defendant answered in the negative. It later came to light that photographs had been taken of the plaintiff's vehicle but that they were totally illegible after they had been developed. A copy of the sheet of paper with the "photographs" attached is part of the record on appeal, and absolutely no objects or persons are discernible on this seemingly blank sheet of paper. The sheet of paper was tendered to the plaintiff approximately seven months before trial and was in the plaintiff's possession at the time of the hearing on his ...


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