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06/23/95 ESTATE THORNTON R.L. SEWART v. VIRGINIA

June 23, 1995

IN RE THE ESTATE OF THORNTON R.L. SEWART, DECEASED. IRENE B. POPHAM, INDIVIDUALLY AND AS INDEPENDENT ADMINISTRATOR OF THE ESTATE OF EDWARD J. POPHAM, DECEASED, PLAINTIFF-APPELLANT,
v.
VIRGINIA TAFF, INDIVIDUALLY AND AS INDEPENDENT ADMINISTRATOR WITH THE WILL ANNEXED OF THE ESTATE OF THORNTON R.L. SEWART, DECEASED; DOUGLAS SEWART, JR., DONALD SEWART; THOMAS SEWART; KATHRYN GRUDEK; THOMAS H. SEWART; JAMES W. SEWART; DEFENDANTS-APPELLEES, AND THE SALVATION ARMY; THE ST. PETER'S UNITED CHURCH OF CHRIST AND THE HADLEY SCHOOL FOR THE BLIND, DEFENDANTS.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE ARTHUR PERIVOLIDIS, JUDGE PRESIDING.

Rehearing Denied July 21, 1995. Petition for Leave to Appeal Denied December 6, 1995.

The Honorable Justice Gordon delivered the opinion of the court: Cousins, Jr., P.j., and T. O'brien, J., concur.

The opinion of the court was delivered by: Gordon

JUSTICE GORDON delivered the opinion of the court:

This is the second appeal taken by the plaintiff, Irene Popham, individually and as administrator of the estate of her late husband, Edward J. Popham, concerning her two-count complaint for declaratory relief, naming as defendants, Virginia Taff, individually and as the administrator of the estate of Thornton R.L. Sewart; the beneficiaries under Sewart's will; and several other relatives of Sewart. In the earlier appeal, this court reversed the grant of summary judgment to the defendants on count I which alleged the existence of an oral contract to make a will between the plaintiff, her husband and Sewart and remanded the case for further proceedings on that count. ( In re Estate of Sewart (1991), 236 Ill. App. 3d 1, 602 N.E.2d 1277, 177 Ill. Dec. 105.) There we held that, notwithstanding plaintiff's admissions in her deposition testimony, which precluded consideration of an express contract, an issue of fact remained as to whether those admissions precluded recovery under a theory of implied in fact contract for which purpose the matter was remanded for trial. The instant appeal is taken from the judgment entered in favor of the defendants after a bench trial pursuant to our remand.

In the instant appeal, the plaintiff contends that the trial court erred by denying plaintiff's motion to empanel a jury or, alternatively, for a change of venue; that the trial court erred in excluding certain evidence under the Dead-Man's Act (735 ILCS 5/8-201 (West 1992)); and that the trial court erred by entering judgment in favor of the defendants.

Before we review the testimony at trial, we first address plaintiff's argument that the trial court erroneously denied plaintiff's motion to empanel a jury or, alternatively, for a change of venue. *fn1 That motion was filed on April 27, 1993, sixteen days after defendant Taff filed a waiverof her right to jury trial. In her motion, plaintiff argued that the case had proceeded and was prepared in anticipation of a jury trial and that the plaintiff was prejudiced by the defendant's "last-minute tactic" to waive a jury. Particular prejudice was alleged to have occurred because during pretrial conference, an ex parte communication occurred between one of the defendants' attorneys and the trial judge regarding Sewart's testamentary plan. The plaintiff contended that the communication was "potentially quite prejudicial (the Court has made reference to the discussion, though not its content, on at least two occasions)." On this basis, the plaintiff requested that theCourt, in its discretion, order a jury trial or, in the alternative, to grant plaintiff a change of venue.

In response, the defendants moved to strike and dismiss the plaintiff's motion. While the trial court granted defendants' motion, the rationale for its ruling is not apparent from the record.

Initially, we note that the plaintiff has not supported her argument with case citation and is thus in violation of Supreme Court Rule 341(e)(7) (134 Ill. 2d R. 341(e)(7)). (See Bank of Illinois v. Thweatt (1994), 258 Ill. App. 3d 349, 630 N.E.2d 121, 196 Ill. Dec. 424 (issue waived when failure to argue or cite to authority).) In addition to this procedural shortcoming, plaintiff's argument also fails on its merits. As provided in section 2-1105 of the Code of Civil Procedure (735 ILCS 5/2-1105 (West 1992)), the plaintiff must file a jury demand at the time the action is commenced, and the defendant must file a jury demand at the time of filing an answer. The statute further provides that if the plaintiff subsequently waives the jury demand, the defendant can promptly demand a jury after being advised of the waiver. There is no provision that if a defendant files a jury demand and then waives it that the plaintiff shall be given the right to file a jury demand. Schwartz v. Lake View Tool & Manufacturing Co. (1955), 4 Ill. App. 2d 565, 124 N.E.2d 570.

As stated in Stephens v. Kasten (1943), 383 Ill. 127, 133, 48 N.E.2d 508, 511, "the need for a systematic order of procedure requires that there be regulation of the time when the right to a jury trial be requested." An untimely jury demand is not necessarily foreclosed, however, if good cause can be shown for the failure to comply with the statute. ( Greene v. City of Chicago (1978), 73 Ill. 2d 100, 382 N.E.2d 1205, 22 Ill. Dec. 507; see 134 Ill. 2d R. 183; 735 ILCS 5/2-1007 (West 1992).) The determination of whether a party has shown good cause is discretionary with the trial court (see Trapani v. Trapani (1969), 109 Ill. App. 2d 202, 248 N.E.2d 294); and that determination will not be overturned absent an abuse of discretion. (Greene v. City of Chicago.) The test is not whether we, sitting as trial judges, would have allowed the motion, but whether the action of the trial court in denying the motion was a reasonable exercise of sound discretion. Johnson v. Sabben (1972), 7 Ill. App. 3d 238, 282 N.E.2d 476.

As stated above, the plaintiff's late jury demand, made in her motion to empanel a jury, argued that the plaintiff had been prejudiced by the defendant's late waiver because the plaintiff had prepared her case as a jury-trial matter based on the defendants' jury demand. The plaintiff further argued that the trial court had been privy to information discussed during pre-trial ex parte conferences and at hearings on pre-trial motions.

The fact that a defendant waives his jury demand when the case is called for trial is not in and of itself sufficient to support a good cause showing by the plaintiff. (Schwartz v. Lake View Tool & Manufacturing Co.) Similarly, allegations of prejudice resulting from pre-trial conference discussions based on a belief that the case would be heard by a jury do not meet the good cause showing requirement. ( Gray v. Schottmiller (1974), 18 Ill. App. 3d 812, 310 N.E.2d 750.) In Gray, a jury demand was originally filed by the defendant and the defendant withdrew that demand immediately prior to trial. As the court stated:

"Beyond the fact that the plaintiff has not alleged actual prejudice, but merely the possibility of prejudice, it has been held that the systematic order of procedure provided for jury demands *** will be applied unless the trial court, in its discretion and for good cause shown, allows the plaintiff additional time to file a jury demand ***. [Citation.] Plaintiff cites no cases to support her position and we feel the allegation that the plaintiff was somehow 'possibly' prejudiced when she participated in settlement negotiations in the belief that the case would be tried by a jury does not make the required showing of 'good cause' ***. [Citation.]"

In accordance with Schwartz and Gray, the plaintiff in the instant case did not make the requisite showing of good cause. The plaintiff did not allege actual prejudice but "potential" prejudice based on speculative information that the trial judge may have been privy to during ex parte pre-trial conferences. The trial judge reviewed the plaintiff's motion and allegations therein and granted defendants' motion to strike and dismiss that motion. This ruling was not an abuse of discretion.

For similar reasons, we reject plaintiff's argument that the trial court erred in denying her alternate request for change of venue. As with her jury demand issue, the plaintiff has not cited to any authority in support of her change of venue argument and thus has waived this issue on appeal. (Bank of Illinois v. Thweatt; see 134 Ill. 2d R. 341(e)(7).) Furthermore, the plaintiff has not alleged nor shown a personal bias by the judge which she was required to do since the judge had previously ruled on substantial issues in the case. ( Estate of Roselli (1979), 70 Ill. App. 3d 116, 388 N.E.2d 87, 26 Ill. Dec. 463; Board of Trustees v. Cook County College Teachers Union (1976), 42 Ill. App. 3d 1056, 356 N.E.2d 1089, 1 Ill. Dec. 807.) The purpose behind requiring a party to file its change of venue before the judge has rendered any decisions on substantial issues is to prevent counsel from ascertaining whether a court is in agreement with its theory and if it is not, to assert prejudice and seek a change in venue. ...


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