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Appelgren v. Walsh

OPINION FILED SEPTEMBER 23, 1985.

ROBERT APPELGREN, PLAINTIFF AND COUNTERDEFENDANT-APPELLANT,

v.

RICHARD WALSH, DEFENDANT AND COUNTERPLAINTIFF-APPELLEE.



Appeal from the Circuit Court of Winnebago County; the Hon. John C. Layng, Judge, presiding.

JUSTICE UNVERZAGT DELIVERED THE OPINION OF THE COURT:

Plaintiff-counterdefendant, Robert Appelgren, appeals from the jury verdicts and judgment entered against him for malicious prosecution, assault and false imprisonment and for the damages awarded him for breach of a lease. Specifically, plaintiff contends that it was error for the court to refuse to allow the testimony of plaintiff's expert witness and to enter judgment on allegedly inconsistent verdicts.

The plaintiff brought this action to recover damages occasioned when defendant-counterplaintiff, Richard Walsh, allegedly converted plaintiff's standing dead timber and breached a farm lease. Defendant counterclaimed to recover damages occasioned by the alleged malicious prosecution and assault of defendant by plaintiff.

The situs of this case is a farm owned by plaintiff and leased to defendant in three-year intervals from 1974 to 1980. Waterways had been installed on the farm between 1974-77 to limit soil erosion. The waterways were installed by Douglas McAllister, an excavator. Pursuant to the terms of the second lease from 1977 to 1980, defendant was to mow and maintain the waterways. According to plaintiff, defendant did not fulfill these duties, and as a result the waterways were in need of repair by the end of 1980. Defendant denied having the duty to cut the waterways and contended that the lease had been altered.

During the last week of August 1980, plaintiff met with defendant to pick up a rent check and explained that he would be going to Sweden for three weeks. Plaintiff stated he also told defendant that he would not be renewing his lease due to failure to mow the waterways but defendant denied this conversation.

Upon plaintiff's return from Sweden he received a phone call and in response took his shotgun and shells and went to the wooded area of the farm leased by defendant. When he arrived plaintiff heard chain saws operating. He then sent his son, who had accompanied him to the farm, to get the sheriff while he remained behind. They arranged a signal whereby plaintiff would shoot into the air to indicate his location.

Plaintiff then saw three men and one woman cutting down and removing lumber. Loaders and log trucks were also observed at the scene. One of the men was defendant Walsh. The plaintiff put the shotgun to the defendant's head and asked what he was doing. He then lowered the gun and pointed it at Walsh's back while he walked behind him. The plaintiff told the group that the police had been called and that no one could leave. While they were waiting, the plaintiff stated that he held the gun under his arm and pointed to the ground but the defendant claimed that he kept the gun pointed at the group. When the defendant told his son, one of the group, to start up the tractor and take it home, he testified that the plaintiff pointed the gun at the boy's face and told him not to move or he would shoot.

When the police arrived, the plaintiff asked to have the people arrested but the deputy did not do so because he felt the need for further investigation.

The next day, the plaintiff told the sheriff's department that the damage done was in excess of $35,000. Two days later the plaintiff signed a complaint against the defendant alleging theft, attempted theft and criminal damage to property.

Upon further investigation, it was discovered that the 12 trees cut had been dead and that the value of the standing timber was $52.

The defendant was arrested and released on bond. Later, defendant received a letter from the assistant State's Attorney saying that the case against him had been dismissed.

At the time of trial, plaintiff intended to call Douglas McAllister as an expert witness but discovered three days before trial that McAllister had disappeared. A continuance was granted and the case was reset for February 27, 1984. After the jury was excused the first day, plaintiff's counsel informed the court and defendant's counsel that he would be attempting to obtain an expert witness not previously disclosed who would testify in the same fashion as McAllister. The trial court ruled, however, that the witness would not be allowed to testify before the jury. Plaintiff presented an offer of proof from the witness. Thereafter, the case proceeded to verdict and judgment.

Count I of the complaint claimed damages for breach of the lease alleging defendant had a duty to mow and maintain the waterways. The jury returned a verdict for the plaintiff and found damage in the amount of $200. Count II of the complaint claimed defendant Walsh converted plaintiff Appelgren's trees. The jury found for the plaintiff and awarded damages of $52. Count III claimed damages from the defendant for trespass. The jury found for the plaintiff but awarded no damages.

The counterclaim was in three counts. Count I claimed damages for malicious prosecution because plaintiff instituted a criminal action against the defendant. The jury found for the defendant and awarded damages of $1,200 and $1,500 punitive damages. Count II claimed damages for assault when plaintiff Appelgren pointed the shotgun at defendant Walsh. The jury found for the defendant and awarded $1,500 damages and $10,000 punitive damages. Count III claimed damages for false ...


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