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05/03/88 Samuel L. Young, v. the City of Centreville Et

May 3, 1988

SAMUEL L. YOUNG, PLAINTIFF-APPELLEE

v.

THE CITY OF CENTREVILLE ET AL., DEFENDANTS-APPELLANTS



Before addressing the merits of defendants' appeal, we feel constrained to observe that their brief does not comply with the requirements of Supreme Court Rule 341 (107 Ill. 2d R. 341). In particular, defendants have failed to include the introductory paragraph required by Rule 341(e)(2) and the statement of issues presented for review required by Rule 341(e)(3). We can find no justification for these omissions. Defendants' attorneys have appeared before this court on many occasions. They are expected to know and observe appellate procedure.

APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

523 N.E.2d 621, 169 Ill. App. 3d 166, 119 Ill. Dec. 865 1988.IL.657

Appeal from the Circuit Court of St. Clair County; the Hon. Robert Craig, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE HARRISON delivered the opinion of the court. LEWIS and CALVO, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HARRISON

Plaintiff, Samuel L. Young, brought an action in the circuit court of St. Clair County to recover damages for injuries he sustained when he was shot in the back by Sylvester McWherter, assistant chief of the Centreville police department. Named as defendants were McWherter, the City of Centreville (City), and Theodore Shamalian, who was sued solely in his official capacity as Centreville's chief of police. Plaintiff sought recovery against each of these defendants pursuant to 42 U.S.C.A. section 1983 (West 1981). He also claimed that McWherter and the City of Centreville should be held liable under Illinois law for the tort of willful and wanton conduct.

Following a four-day trial, the jury entered verdicts in favor of plaintiff and against each of the defendants. On plaintiff's State law claim against McWherter and the City of Centreville, it awarded him no damages of any kind. On his section 1983 claims, it awarded him $5,000 in actual damages against Centreville, as well as $25,000 for the value of his lost constitutional rights. At the same time, it awarded no compensatory damages against either McWherter or Shamalian, but held that each of them was liable for $300 in punitive damages.

The circuit court entered judgment for plaintiff on these verdicts, and defendants promptly filed their post-trial motion. That motion was denied. At the same time, the circuit court awarded plaintiff attorney fees of $21,487.50 plus costs of $3,067.24. Defendants each now appeal. For the reasons which follow, we affirm the judgment as to liability, but reverse and remand for a new trial on the issue of damages.

Adherence to Supreme Court Rule 341(e) (107 Ill. 2d R. 341) is not an inconsequential matter. The purpose of the rule is to require parties to proceedings before a reviewing court to present clear and orderly arguments so that the court may properly ascertain and dispose of the issues involved. (47th & State Currency Exchange, Inc. v. B. Coleman Corp. (1977), 56 Ill. App. 3d 229, 232, 371 N.E.2d 294, 297.) Where an appellant's brief fails to comply with the rule, the appeal may be dismissed. (Wilson v. Illinois Benedictine College (1983), 112 Ill. App. 3d 932, 936, 445 N.E.2d 901, 909.) We do not believe that so severe a sanction is warranted here. Despite its deficiencies, defendants' brief is sufficient to enable us to discern defendants' arguments and to pass on the merits of their appeal. Nevertheless, we admonish counsel that future lapses in compliance will not be greeted so charitably.

The trial of this case commenced on February 18, 1986, but plaintiff was not present. Weeks earlier, defendants McWherter and Shamalian had learned that there were outstanding bench warrants against plaintiff for failure to pay fines in two traffic-related matters dating back to 1984. In an attempt to derail the proceedings, they kept this information to themselves until the eve of trial, when they called the St. Clair County sheriff's department and advised authorities there that plaintiff was scheduled to be in court the following morning. On his arrival at the courthouse that morning for the start of trial, plaintiff was met by a sheriff's deputy, who arrested him and took him into custody. The arrest was observed by Shamalian and McWherter, but they told no one about it, and plaintiff's whereabouts remained unknown until later in the day, when plaintiff was finally able to contact his attorney by telephone. Plaintiff was released from jail and was able to attend the proceedings the following day. At that time the trial Judge advised the jury of defendants' aborted ploy, after which the parties presented their evidence.

That evidence, viewed in the light most favorable to plaintiff, the prevailing party (see Renfro v. Allied Industrial Equipment Corp. (1987), 155 Ill. App. 3d 140, 156, 507 N.E.2d 1213, 1227), showed that on Saturday morning, January 10, 1981, plaintiff was at the home of his mother, Neola Roddy, in Centreville, Illinois. Plaintiff had been out all night and had gone to his mother's to take a shower and change clothes. Shortly after 10 a.m., plaintiff decided that he might like a drink, but he did not want his mother to see him, so he stepped outside. While standing there, he observed an older-model Buick pull up to his mother's house. Five men got out. They had braided hair and wore cowboy hats. At least some of them were armed and had pistols drawn as they approached the house.

These were the "Donaby Brothers," a local gang. Fearful, plaintiff tried to flee on foot. He ran toward "Ridge Avenue," an unused railroad bed which divides Centreville from the City of East St. Louis, made a left turn onto 61st Street, then began "dodging" between houses. At first he thought he would try to make it back to his mother's house, which is on 60th Street, but he decided instead to run down an alley toward State Street.

As plaintiff fled down the alley, his shoes became tangled in a discarded mattress which blocked the path. This was about three houses, or half of a block, from his mother's. As plaintiff attempted to extricate himself, he heard several bullets fly past his head and ankle. He then felt a round strike him in the back. The shot knocked him to the ground.

The person who wounded plaintiff was not one of the "Donaby Brothers," but defendant McWherter, assistant chief of the Centreville police. Unknown to plaintiff was that McWherter and defendant Shamalian, Centreville's chief of police, had driven up to his mother's house in an unmarked police car at the same time the Donabys had arrived. With McWherter and Shamalian in the car was David Brown, a suspect who had been arrested the previous day in connection with a burglary. While in jail, Brown allegedly implicated plaintiff in a series of burglaries, and Shamalian claimed that he and McWherter had gone to plaintiff's mother's house to arrest him for those burglaries.

Neither McWherter nor Shamalian was wearing a uniform, and McWherter did not identify himself as a police officer before opening fire on plaintiff. As plaintiff lay on the ground after being shot, he observed McWherter "creeping" toward him. He heard McWherter cock his pistol, apparently to shoot him again. Bernadette McCoy, who had just finished shopping at a nearby grocery store and rushed to the scene after hearing the shots, testified that she saw a person (McWherter) stand over plaintiff and that the person said to him, "I ought of [ sic ] killed you," or, "I ought to shoot you," or something to that effect. According to plaintiff, a friend of his saw what McWherter was about to do and told him, "Don't do that." A group of onlookers gathered. No further shots were fired.

When plaintiff was gunned down, he was actually in East St. Louis, not Centreville. Before medical help arrived, McWherter dragged plaintiff back to Ridge Avenue and the Centreville city limits. McWherter placed plaintiff face down on the ground, and David Brown, the burglary suspect, was brought over from the unmarked police car. According to plaintiff, McWherter asked Brown about a black and white television set, and Brown responded, "No, I didn't tell you that he had no T.V." Brown was then taken back, but instead of being placed in the unmarked police car, he was handed over to the Donaby Brothers. Plaintiff ...


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