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12/11/97 SCOTT HEFNER v. OWENS-CORNING FIBERGLAS

December 11, 1997

SCOTT HEFNER, SPECIAL ADMINISTRATOR OF THE ESTATE OF CLARENCE HEFNER, DECEASED, PLAINTIFF-APPELLEE,
v.
OWENS-CORNING FIBERGLAS CORP., DEFENDANT-APPELLANT, AND M. H. DETRICK, INC., DEFENDANT.



Appeal from the Circuit Court of Madison County. No. 94-L-957. Honorable Nicholas G. Byron, Judge, presiding.

Honorable Thomas M. Welch, P.j., Honorable Terrence J. Hopkins, J., and Honorable Richard P. Goldenhersh, J., Concur.

The opinion of the court was delivered by: Welch

PRESIDING JUSTICE WELCH delivered the opinion of the court:

Plaintiff Clarence Hefner brought suit against defendants Owens-Corning Fiberglas Corporation (OCF) and M. H. Detrick, Inc., to recover damages for personal injury resulting from plaintiff's occupational exposure to asbestos-containing products. Following trial, the jury returned verdicts in favor of plaintiff and against OCF and against plaintiff and in favor of defendant M. H. Detrick, Inc., who is not a party to this appeal. After Clarence Hefner's death, Scott Hefner was substituted as plaintiff. OCF appeals from the entry of judgment and award of prejudgment interest.

OCF raises the following issues: (1) whether the trial court erred as a matter of law in failing to grant a mistrial based on its loss of jurisdiction, (2) whether the trial court erred as a matter of law in denying OCF's motion for a directed verdict and for judgment n.o.v. on plaintiff's willful-and-wanton/punitive-damages claim, (3) whether the trial court abused its discretion in denying OCF's motions for a new trial, (4) whether the trial court abused its discretion in denying OCF's motion for remittitur, and (5) whether the trial court's award of prejudgment interest violated principles of equity and fairness and must be vacated. OCF also raises numerous related arguments within these five primary issues, which we will address in turn. We will discuss only those facts relevant to the issues raised on appeal.

Plaintiff filed suit against defendants on September 23, 1994. On November 14, 1994, plaintiff moved for an immediate trial setting because of his declining health. Thereafter, on November 16, 1994, OCF filed a motion to dismiss on the grounds of forum non conveniens. On December 9, 1994, the trial court denied OCF's motion to dismiss on the basis of forum non conveniens and granted plaintiff's motion for immediate trial, setting January 23, 1995, as the trial date. On January 10, 1995, OCF moved for reconsideration of the forum non conveniens motion. The trial court heard this motion on January 20, 1995, and denied it.

Also on January 20, 1995, OCF filed a motion to stay the trial proceedings pending a determination on its Supreme Court Rule 306 (155 Ill. 2d R. 306) petition for leave to appeal the trial court's order denying OCF's motion to reconsider. The trial court denied the motion for stay, OCF filed its petition for leave to appeal pursuant to Rule 306 on January 23, 1995, and the case proceeded to trial beginning on January 23, 1995.

On February 3, 1995, this court entered an order staying the trial proceedings. The record is not clear precisely when on February 3 the stay order was issued. Regardless, the trial court was not aware of the stay order when it was entered by this court. On that day, the jury began deliberations at 2:18 p.m. At approximately 5:30 p.m., the jury returned its verdicts. On February 6, 1995, a copy of this court's stay order was filed in the trial court.

On March 14, 1995, this court granted OCF's Rule 306 petition for leave to appeal, and on December 27, 1995, we affirmed the trial court's order. This court's mandate issued on May 16, 1996, and on May 20, 1996, the trial court entered judgment on the verdicts and awarded $1,571,174.72 in prejudgment interest.

OCF first argues that the circuit court lost jurisdiction when this court entered a stay at 1:23 p.m. on February 3, 1995, and that when jurisdiction revested in the trial court, the trial court erred in failing to grant defendant's motion for a mistrial. The decision of whether or not to declare a mistrial rests within the sound discretion of the trial court, and the trial court will not be reversed on appeal unless that decision is a clear abuse of discretion. Bianchi v. Mikhail, 266 Ill. App. 3d 767, 777, 204 Ill. Dec. 21, 640 N.E.2d 1370 (1994).

Initially, we note that while OCF argues that this court entered its stay at a certain time on February 3, 1995, it does not support this claim by citation to the record. OCF's only citation indicating that the stay was entered at 1:23 p.m. is to its own counsel's argument at the hearing on posttrial motions. Even assuming that this court entered its stay at 1:23 p.m. on February 3, 1995, OCF's jurisdictional argument is not meritorious.

At issue is whether the stay issued by this court immediately deprived the trial court of jurisdiction before the jury rendered its verdict, causing a mistrial.

The parties contest whether the stay was granted pursuant to Supreme Court Rule 305 (155 Ill. 2d R. 305) or Rule 306. OCF contends that because the stay was issued pursuant to Rule 306, it automatically and instantaneously deprived the trial court of jurisdiction when it was entered.

Plaintiff counters that the stay could only have been granted under Rule 305 and that a stay is not intended to be effective until notice of it ...


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