*1 certainly are in determin- circumstances should consider statement, facts, ing weight given to be to the these either but individually collectively, hardly supporting constitute evidence reasonable inference that the statement was fabricated. reasons, I find no in the given by
For these error instruction trial this case. INC., STORES, al., JOHNSON, Plaintiff-Appellee,
MELISSA v. TARGET et Defendants-Appellants. (4th Division) 02—1368, District 1—02—1369 cons.
First Nos. 1— July Opinion Rehearing filed denied 2003. June 2003. *3 HARTMAN, J., dissenting. (David Sullivan, EC., Radelet, Scott, Chicago Sally
Franczek E J. Boyer, counsel), appellants. Shelli L.
Lonny Ogus, Chicago, appellee. Ben opinion JUSTICE GREIMAN delivered the of the court: Johnson, Plaintiff Melissa employee Target former of a store in Evanston, was arrested for retail theft from the store and was terminated from employment. her Ruben a former security guard, signed complaint against the criminal the plaintiff that proceedings against commenced criminal her. After the charges were dismissed on the State’s motion to strike the case off the call with reinstate, plaintiff brought against Target leave to suit and Garcia prosecution. for false arrest and malicious trial, five-day jury
After a tendered a verdict in favor of Target and against Target the false arrest claims and Garcia for the malicious The trial court denied prosecution claims. Target’s posttrial judgment notwithstanding verdict, motion for trial, remittitur, new or a and later denied and Garcia’s motion to enter a nunc tunc order to correct the court’s order and (1) appeal argue: dismiss Garcia as defendant. Defendants now entry that the trial court erred in motion for denying defendants’ *4 (2) defendant; of a dismissing nunc tunc order Garcia as a the trial court erred in not motion for notwith- granting Target’s (3) trial; jury’s against or for a standing new verdict (4) evidence; Target weight is the manifest the trial (5) instructing jury; punitive compensa- court erred in and tory damages supported by awarded were not the evidence. find that the intentionally we dismissed Garcia as a
Because requisite probable defendant and that had the to arrest cause her, reverse, prosecution against and commence we whereas the dissent would have us reverse and remand. Notwithstand- however, ing relating judgment, the errors to the verdict and we find the cited in plethora also evidence both our decision and in the dissent does not reveal a of evidence that a scintilla would allow finder of fact determine that Target acted with malice—another essential prosecution. element to a cause of action for malicious By way background, Target operates a chain of retail stores and security maintains a function at each store that it to as refers “assets protection.” expected, protection department As to be the assets is responsible preventing, investigating, processing incidents of employee protection customer and theft. Positions within the assets department protection include the district team leader assets (DAPTL), (APTL), protection the assets team leader the senior assets (Senior APS), and the assets protection specialist protection specialist (APS). The DAPTL responsible protection is for assets at several stores district, or her APTL responsible protec- within his for assets store, particular hourly tion at a and the Senior APS and APS are security employees. general policy requires separately has its cashiers presented purchase, each item even if a
scan bar code of items, purchases place customer several of the same and then the item scanned, code and bag. the customer’s When an item is the bar price by computer printed receipt. are recorded and are then on a therefore, protection personnel assets According policy, when hand-keying merchandise information into the observe a cashier flag that computer scanning bagging, that raises a red instead something being improperly. done 16, 1998, Target’s in- January supervisor
On was a cafeteria, Avenue, and her included food responsibilities store Food service, register. preparation, operating Apparently food cash entity Target, “she did separate because Food Avenue was within date, had a verbal Target policy.” not know all Prior to that she APS, regarding a Senior her fiancé. exchange with who was Victor, engaged testified at trial that she was Victor Specifically,she Alice, family dating did not like Victor stepmother has a named Alice’s Alice, the plaintiff and Garcia told plaintiff, Garcia is friends with dating. that she and Victor should shopping the store Following day, plaintiff her shift that *5 Curtis, get to off Gwen waiting Target employee, for another while in ended, joined plaintiff shopping she Curtis’s shift work. When them, to using shopping the same cart. Unbeknownst began store and what Corey Claybon because of by under surveillance APS they were merchandise. When selection of “suspicious” was described as their entered the checkout plaintiff Curtis and the they shopping, finished According to working as a cashier. Campos line where Ronna was “barely Campos. knew” plaintiff, she line, APS Campos’s and entered checkout
When Curtis began viewing and them Claybon protection to the assets office went a a monitor. He also used recording and their transaction on video POSSI, protection personnel system called which allows assets monitor as receipt of the of a transaction on a video image watch rung up by protection the items are a cashier. This allows assets work- receipt of the compare they ers to observe with actual what long began, Claybon Not after the transaction APS sum- transaction. protection moned Garcia to the assets office. following Campos/ and the in the videotape receipts reveal the
Curtis transaction: Curtis was first in line and had her merchandise rung by Campos. Campos system hand-keyed overrode the and three $2.56, $1.24, $1.24, binders for and and made no attempt scan binders; shirt hand-keyed $1.52, a Campos price though for even “2,” prices attempt do not end in the number and did not shirt; scan the Campos charged different amounts for two identical pink fleece and pants, passed pair bag then a third into Curtis’s small, without scanning keying price; Campos picked up Curtis, item scanning unidentifiable without it and handed it to who placed bag; keyed it in her and shopping Campos sweatshirt $10.40, transaction, voided the placed and then sweatshirt into bag charging Curtis’s without her for it. transaction, Campos began ring
After concluded the Curtis she plaintiff’s conveyor The first on the items. items belt were six designs styles. rung, binders of different and Before the binders were Curtis, plaintiff Campos indicating and had a discussion while toward tag pointed register on one of the binders. Plaintiff then to the saying something hand-keyed price while Campos, Campos and $1.24, “quantity” key register, of one binder at hit the on the and charged plaintiff eight Campos engaged additional binders. $1.24 despite tags this behavior the fact that the binders had with item that, according Target policy, numbers visible should have been Moreover, individually scanned. some binders were black with velcro closures, spine, some had the word “Bulls” in red letters down the blue, leading and some were to the conclusion that the items would they have had different item if price. numbers even were the same Plaintiff her during Campos, *6 him, standing, briefly bon was talked with and then entered the refund line, waiting line. in had a While she conversation with who approached her and stated that he to talk her im- wanted with mediately. got obtaining She off line a refund and without went with to an office. Garcia transaction,
Following requested Campos Garcia also and protection Curtis come into the assets office for Accord- questioning. ing in Target policy, Target employee one other sat as a witness during prepared report each interview and a written of the interviews. Ruth Campos presence employee was interviewed witness binders, undercharge Campos When asked about the for the Walker. plaintiff “gave price informed Garcia that her the of the binders.” her, and an plaintiff assigned After entered the office Garcia witness, Ifelowo, employee plaintiff Sherrice entered. Garcia told bag paid had merchandise in her for which she had not she [binders] “selected several price. correct Plaintiff stated she that it was price, [plaintiff] replied [sic] herself. Ask about the she That is she told the cashier. So price. discounted below stickered what price.” marked rang up cashier below interviews, receipts, and the Garcia videotape,
Based on reviewing the police. decided to call the Evanston After Claybon and documents, plaintiff, to the videotape police spoke and the officers Curtis, arrest, and took them to the Campos, placed and them under police called to the station to police evening, station. That Garcia was all three sign complaints prepared by police criminal arrest, Ap- felt “horrible.” individuals. As a result of the complaints, Garcia proximately days signed two or three after he inquired and whether police department contacted the Evanston answered Garcia’s sergeant who assigned. had been date to the case. assigned date had been that no court allegedly call stated Target’s January the Evanston the last week of During Fiala, analyst position a field outside APTL, promoted Brad time, at the same Robert Lawson Approximately store. Evanston and Barb to the APTL Evanston store position was transferred after, February Gar- long Silnes the DAPTL. became Not Target ended. Claybon’s employment cia’s and store, working A he at the Evanston Law- began after few weeks appear Claybon subpoena son for either received Curtis, against plaintiff, proceedings pending court on the criminal and Silnes subpoena, and After Lawson Campos. receiving investiga- files, separate case Silnes conducted a all three reviewed Silnes, According to she tion the actual of the binders. price to confirm on Curtis’s and ran and item number codes department the two class computer found that plaintiffs’ through Target’s receipts $20.99, and had never been on binders had retail values of $16.99 priced binders clearance. Silnes also testified that she knew that $1.24, between not be marked down $20.99 would $13.99 once marked of its sends it price, an item is down to 90% retail company. to a salvage them, on their review the information Law-
Based available knowingly under-rung son and Silnes concluded that received Specifically, “everything merchandise. Silnes testified that combined *** gives picture happened. [that] me a clear It was these what people stealing.” they claim that Accordingly, were Lawson and Silnes Claybon to in court on the attempted appear to contact Garcia and Claybon, matter. Lawson and Silnes unable to reach but Lawson were spoke claimed that he with Garcia. Lawson asserted Garcia was “on he for the court appear the fence” about whether would date. *7 however, testified that no one ever told him about court that, dates, dates criminal if he told of the for the case and had been he “definitely” would have been there. they brief went to appeal,
In defendants’ on state that Lawson trial, 6, 1998, court on the and then Target day first March again 9, fact, Target ap- 1998. that when Lawson April on In claims ready testify peared videotape corresponding documents and that he April 9, Attorney on the assistant him would State’s advised he in the permitted testify present be because was not Evan- day ston then continued the store on the the incident. court May However, Target’s plaintiffs 13. in inter- matter until answer 13, rogatories, May 1998. only it states Lawson went to court Target incorrect. now asserts date is
Lawson stated that appearing after 9, court on April 1998, he told the assistant State’s Attorney that because both Claybon and longer Garcia no worked for Target, Target had no one available to testify who witnessed the theft May 13, 1998, firsthand. On Silnes also spoke to the assistant State’s Attorney and Target informed her that had the videotape of the incident supporting and documentation, but that she could not compel testify. Garcia to Lawson testified in his deposition that, day, later that he told the assistant Attorney State’s that Target wanted dismissed, to have the case upon instructions from Silnes. Accordingly, the State struck the case from the docket with (motion SOL). leave to reinstate January 4, 1999,
On plaintiff brought against this action alleging defendants two counts of false arrest and two counts of mali- cious prosecution. During prior verdict, deliberations and jury asked the trial court whether it could permitted to read a statement into'the record. After a agreement consultation and between parties, gave jury permission to read its statement. end, 4, 2001, on December the jury found in favor of Garcia on the false arrest claims and Target and Garcia for prosecution malicious However, claims. the verdict form did not distinguish between the defendants or between malicious commence- ment and malicious prosecution. such, continuation of jury As distinguish unable to between Garcia and in recording its verdict for the prosecution malicious claim.
Nevertheless, immediately after the verdict form was read and prior jury to the being discharged, foreman read a unani- mously signed statement into the record that found Garcia “not guilty” of prosecution. malicious attorney Plaintiffs prepared then order, stating that “the jury finding in favor of as to Johnson III counts prosecution only, IV malicious plaintiff $75,000 awards in compensatory damages.” sentence, At the conclusion of the a caret was added with the “against words both defendants.”
After being granted an extension of time in post- which to file a motion, 4, 2002, trial on February Target timely moved for notwithstanding verdict, trial, for a seeking new for remittitur a reduction in damages. join Target’s states that he did not posttrial motion because “the liability.” exonerated him of all 4, 2002, April On the trial Target’s court denied On April motion. 2002, Target requesting Garcia filed a motion the trial court to enter a nunc tunc order correcting the December order by dismissing Garcia a defendant. Specifically, sought motion first, correct two clerical sought errors: to correct the reference in III, the order to count because count III was a malicious
65 from action another who dismissed brought by plaintiff claim second, motion order’s stated summary judgment; on damages against “both defendants” being awarded reference to 6,May 2002, trial court denied jury’s verdict. On did not reflect the Target and Garcia’s motion. 2002, judgment entered 6, appealed from the May
Also on 4, 2001, April order of of the court’s jury on the verdict December verdict, notwithstanding the 4, 2002, judgment denying motion for remittitur. the court’s trial, appealed a for a also new order, requesting the May 6, 2002, which denied defendants’ motion as a defendant. dismissing court to a nunc tunc order Garcia enter “jointed] 2002, in a of May 6, separate appeal, On notice 4, appeal judgment on the verdict of December of the entered 2002, 2001, 4, denying Target’s motion April and the court’s order of 4, judgment 2001, of for a notwithstanding the verdict December 6, remittitur,” May order of new trial or for a as well the court’s alone, “judgment 2002. also from the entered on the appealed 2001, 4, 4, April of December and the court’s order of 2002, denying Target’s judgment notwithstanding motion for 4, 2001, verdict of December for a new trial or for a remittitur.” On 5, 2002, granted June defendants’ to consolidate the this motion appeals. 22, 2002, May
On filed motion with this court plaintiff appellant jurisdiction, dismiss of Garcia as for lack this court notes, took plaintiff Supreme the motion with case. As Court Rule 303(a)(1) appeal that a of must be filed “within 30 provides notice from, or, final if days entry judgment timely after the of the appealed *** judgment filed, post-trial motion directed within 30 days entry pending post- of the last disposing after the the order 303(a)(1). judgment 155 2—1202 of the motion.” Ill. 2d R. Section Procedure, timing posttrial Code mo governs of Civil which tions, days motions be filed requires also such within (West 2000). case, In entry judgment. this ILCS 5/2 —1202 date to file therefore, post- asserts that the last for Garcia January 3, or, failing that, appeal, trial 2002. motion notice of was on addition, notes, timely files a party “the fact that one posttrial obligation to file its party’s motion does excuse another entry posttrial statutory 30-day judg- after period motion within the 576, 579, ment. Burnidge Corp. 309 Ill. 3d N.E.2d Stelford, App. (2001). (2000).” Ac- Alvey, Inc., Kim v. 665-66 alone, filed cordingly, Target, the fact that a motion extension then, alone, time to December posttrial file a motion on verdict, for filed a a new notwithstanding motion for trial, or for remittitur February 4, 2002, on does not extend the time appeal to Garcia. And since Garcia joint filed his posttrial motion April 15, 2002, joint and his notice appeal on May 6, 2002, plaintiff concludes that jurisdiction this court has no any over appeal as to him and that he must be dismissed appellant. as an respect
With to Target, plaintiff argues that April 15, 2002, *9 motion a posttrial was successive and, therefore, motion is impermis sible because was filed more days than 30 judgment after the any or extension of time allowed for filing of the postjudgment motion. Sears, See Sears v. 253, 85 Ill. 2d (1981); 259 In Marriage Stone, re (1987). 708, 158 Ill. App. 3d 713 respond Defendants that Garcia timely appealed from the trial court’s joint denial of his motion for a nunc pro tunc order. As defendants relate: “ [Notwithstanding general rule that the circuit court retains
jurisdiction only for
days
30
after entry
order,
of a final
a court
may modify judgment
its
pro
nunc
any
tunc at
Stepp],
Beck[
time.
v.
[232,] 238,
[(1991)].
144 Ill. 2d
[824,]
579 N.E.2d
pro
827
Nunc
tunc
employed by
orders are
courts to correct clerical
errors
written orders and thereby make final orders entered in a case
conform to
judgment
Beck,
the actual
of the court.
144 Ill. 2d at
(a
238,
Defendants also ap because his judgment entered on the verdict from the appeal cia’s 303(a)(3) (155 Ill. 2d timely under Court Rule peal Supreme filed 303(a)(3) 303(a)(3)). provides: R. Rule any by party, timely appeal
“If a notice of is filed and served her, upon him or or within party, days other within after service days entry being appealed, or order from the pend- last entry disposing of the order of the days within 30 later, motion, may ap- in the ing post-judgment join whichever cross-appeal by filing appeal, peal, appeal separately, or notice type being taken.” 155 Ill. R. indicating appeal which 303(a)(3). section, days from
Under this defendants assert that Garcia timely appeal appeal date of notice of to file an from the Target’s Accordingly, joined Target’s jury’s appeal verdict. where Garcia day Target appeal, filed Gar- separate appeal filed the same timely. appeal cia’s from the verdict was also *10 jurisdiction undisputed Since it the trial at all court time times to hear defendants’ motion to correct and because the motion, appeal denying the of the trial order as dictated court’s rules, entry the by supreme the court ran from time of of the court’s order, find from of appeal disposition we that Garcia’s the court’s the trial court denied day motion to correct—which was filed the same Breslow, to 306 Ill. 3d 51 timely. App. the motion correct—was See (and therein). jurisdiction Garcia Accordingly, cases cited we have over enter respect of the trial court’s a challenge to his refusal tunc pro nunc order. 303(a)(3) addition, notes, Rule allows Supreme as Garcia Court appeal filed join timely
him to where “a notice of and appeal *** him.” by any days upon other 10 after service party, served within 303(a)(3). Target’s timely on 155 Ill. 2d R. Where the trial court ruled verdict, trial, notwithstanding for a new judgment motion for 4, appeal on 2002, remittitur filed its notice of April on and 2002, mandated 6, appeal 30-day period fell May Target’s within 303(a)(1) 2d and, thus, timely. Ill. R. by Supreme Rule was Court 155 (1981) 303(a)(1). 1020, 96 3d 1025 Malloy, App. See In re Estate Ill. (held appeal filing rule of notice of requiring that under the timely days entry judgment, appeal 30 a notice of was within final filing days where occurred after written court’s order and days two immediately preceding filing Sunday holiday). were and a joined Because Garcia both appeal appealed in and separately day Target appealed jury’s same May 2002—we verdict — find both joint separate Garcia’s from appeals the trial court’s 4, 2002, therefore, April timely and, order were jurisdiction we have them over as well. Plaintiffs citation to section 2—1202 of the Code of only Civil Procedure is as it inapposite, governs timing posttrial to preserve appellate reasons, motions issues for For review. these we deny plaintiffs motion to dismiss. refusing
We must then decide whether the trial court in erred order grant pro dismissing nunc tunc which is reviewable (2001). City Chicago, App. de novo. Gounaris v. 3d of where suggests that, Plaintiff judgment signed by the court held, reflected what the form jury change verdict the verdict would newly judgment be to using post reasoning. construe the ex As facto Breslow, defendants, cited by pro noted a case nunc tunc can orders only utilized courts correct clerical error so that record judgment; to the judgment. conforms court’s not to alter the court’s Breslow, 306 Ill. at 50. App. Accordingly, 3d where the verdict liable, Garcia attempt was that was defendants’ that to change guilty” error, a “not is not an of clerical one issue but reasoning and determination. And because a clerical cannot error (First reasoning Rezek, involve and determination Bank Oak Park v. (1989)), impossible Ill. it that a was nunc could sought. tunc afford the relief that defendants said, jury That we note that while the was instructed that it could against Target find for plaintiffs malicious claim, prosecution provided it was a means to render such a verdict did not distinguish because verdict form between the defendants claims. words, jury In other plaintiffs unable to discern entering between Garcia and verdict for the malicious its Furthermore, claim. the trial court instructed the upon that it was not to write or mark form. verdict, however,
Prior to returning asked the permitted whether would be read a statement into the record. objections, Counsel from both had no sides defense counsel *11 the the court to ensure that statement would telephoned reporter Accordingly,immediately the record. after the verdict form was part of jury discharged, the state- prior being following read and the to the ment was read before the court: you of guilty of the fact found not
“Mr. in lieu that we by interpretation given our of the law malicious
69 fill out you responsibly more jury of the is that will us—the intent thorough investigative work do more your paperwork/reports responsible appearing and be court.” unanimously, given was light of fact that this statement the the intention in jury’s that there no doubt as to argue defendants malicious Garcia is not liable for rendering namely, its verdict— granted have their mo- Accordingly,the trial court should prosecution. conform to have its final order entry pro a nunc tunc order tion for judgment. jury’s the actual (1884), Larned, 432 v. 111 Ill. According to the venerable Griffin are the control the form the substance of verdict within both may vary correct that jury jury and the or discharge, of the until its therefore, case, we think discharge. present before In the verdict such under restrictions only thing it could do did placed changed through a substan upon it: it the form verdict reading findings conclusions. tive of its may is correct that defendants have waived the
While failing it in a issue of whether the verdict form was error for to raise (West (735 1202(c) 2002)), “the timely posttrial motion ILCS 5/2 — jurisdiction rule is limitation parties waiver Co., L.P., this court.” AIDA v. Time Entertainment 332 Ill. Warner (2002). chose, 154, if App. Accordingly, 3d 159 we so we could decide However, error. the issue whether verdict form was in issue court’s with the is irrelevant to whether trial conformed verdict, 2001, jury’s 4, as the court’s December order constrained was form, intent. by verbiage by verdict but correctly notes, impermissible
As the it is chal dissent jury’s discharge by lenge jury’s following explaining verdict (Chalmers Ill. jury’s findings City Chicago, for the v. 88 basis “ (1982)). 532, ‘Hence, jurors, either no statements or unanimously individually explaining chang be resorted to for or can (8 2356, at 723 ing meaning legal Wigmore, effect.’ Evidence sec. omitted.) (rev. 1961).)” Chalmers, 2d at (Emphasis ed. 88 Ill. 539-40. However, out, in a verdict to point correcting as defendants error See apparent impeachment make the true is not the verdict. (1950); 253, Schwamb Lumber Co. Pierce, Loucks v. App. v. Schaar, (1901), quoting Dalrymple Wil Ill. (the (1875) upon trial liams, 63 court ordered new N.Y. wrong verdict jurors they signed unanimous affidavits from all doing so parties, form as a of a mistake as to the where result “ room, in the but to attempt ‘not an to reverse their action ”). it’ establish As Gounaris noted: “ may supply tunc not be used omitted ‘[A] nunc order *12 70 action,
judicial jurisdictional defect, to cure a or judicial to correct errors that are the result judicial of deliberate but erroneous Moreover, reasoning. pro [Citations.] “[n]imc tunc orders must based upon precise definite and [Citation.] evidence in the record. The of certainty upon evidence must be assured without reliance memory judge any the the person, pro or other and a nunc tunc parte order upon testimony.” cannot be based ex affidavits or [Cita- clearly tion.] This must being evidence show “that the order modi- fied actually failed to conform to the decree the rendered ’ [agency].” Gounaris, [Citations.]” 321 App. Ill. at 493. case, In present record, the after the a careful review of find we the jury’s that statement that was read into the record indicating that Garcia was not liable for sufficiently malicious “definite precise a support and evidence” to the conclusion that trial court a pro making should have entered nunc tunc order judgment its statement, conform to the jury’s signed by verdict. The unanimous every jury member of and into the read the record with both the par assent, represents jury’s ties’ the court’s disposi better the true ‘“ “note, tion the cause it than commonplace before the memoran or upon dum memorial in the paper remaining files or records ’ supreme the court” that has already our found to be sufficient support pro nunc tunc order. Beck v. 144 Ill. 2d 238 Stepp, (1991), v. quoting Department Revenue, Fox Ill. 2d (1966).” Gounaris, Ill. App. Accordingly, 3d at 493.1 we reverse 6, 2002, May denying entry trial court’s order motion defendants’ Quite of a nunc order tunc and dismiss Garcia from this case. it li simply, is clear that the intended to exonerate him of all ability. holding
Despite suggestion today the dissent’s that our “overrules (341 Chalmers, App. or at least stands that decision on its head” Ill. 88), 3d at we note that the would also the trial dissent reverse court’s 1Ironically, rebuttal, plaintiff points ancillary in also to two documents allegedly 4, 2001, that the that show court’s December order was correct. first, jury asking judge specify a note from the particular whether it could defendants, punitive damages against amount was never read into record, signed by jurors, or shown to counsel. Because is not known stage created, impossible which the deliberations that note was it would be jurors monetary impose damages against from deduce it that intended light Target, especially punitive both Garcia and of the fact no dam form,” second, ages against were correction awarded Garcia. The an “error originally that the clerk of the circuit court entered verdict without shows says awarding plaintiff monetary damages. nothing any Because this about entered, disregard parties against whom the also it. which we for a new trial. then remand but entry judgment was inconsistent jury’s statement finding likewise court’s failure the trial verdict, castigates the dissent written the verdict inconsistencies vacate “straighten patent out the 88). (341 agree While we Ill. 3d at a new trial” grant has to un in this case led and verdict clarify failure confusion, grant we think that to vacate the verdict necessary over both ignore exclusive control trial would be new the substance verdict, precept of its as well as form See discharge. before jury may vary or correct its verdict Griffin Larned, (1884). exactly happened what Because that find no discharge here —the corrected its verdict before —we what it once *13 jury the can reiterate reason to remand case so the only to unanimously statement served already signed held. true not reverse the determination jury’s establish the verdict and did nunc entry Therefore, only in not the of a it made the room. is tunc order not Chalmers or proscribed by anything progeny, its actually preferred it is the course of action. deny the
Target’s2 argument first is that trial court erred ing judgment notwithstanding (judgment verdict its motion the n.o.v.) However, principal or for a new trial. the it seeks relief throughout appellate jury’s brief is the reversal of the verdict against Target. judgment For that reason and we find the because n.o.v. issue dispositive, argu not to be we need address the additional recently raises on appeal. ments defendant on We summarized the law this issue:
“A granted judgment notwithstanding the verdict should be evidence, light in the to the unless the when viewed most favorable contrary opponent, overwhelmingly that no so favored movant A possibly [Citation.] could verdict stand. notwithstand- ‘ ing inappropriate in situations where “reasonable verdict or drawn might differ as to inferences conclusions to be minds ’ presented.” [Citations.] from the facts The trial should just set because the reweigh the evidence and aside verdict or inferences from could have drawn different conclusions have evidence or the court feels that another result would because appellate court Similarly, [Citations.] been more far reasonable. usurp jury’s questions of fact that were should not role li joint appeals contesting Target’s separate defendants filed 2While Accord ability, this stated above. Garcia is dismissed from case for reasons defendant, remaining would have been ingly, Target only as is the what once ” arguments properly referred to as “defendants’ will now referred “Target’s.”
fairly submitted, tried, and determined from the evidence which overwhelmingly did not position. favor either apply [Citations.] We a de novo standard to judgments determinations on motions for notwithstanding Kamp Preis, [Citations.]” verdict. v. 332 Ill. (2002). App. 3d a claim prosecution,
To state
for malicious
a plaintiff must
“(1)
prove five elements:
the commencement or continuation of an
(2)
original
judicial
criminal
civil
proceeding by
defendant;
(3)
termination of the proceeding in favor of the
plaintiff;
absence
(4)
of probable
for such proceeding;
cause
of
presence
malice on
(5)
part
defendant;
damages
of
resulting
plaintiff.
to the
Turner
(1980).”
City
v.
Chicago, 91 Ill.
App.
(Emphasis
3d
omit
ted.) Illinois
Ass’n
Nurses
v. Board
Trustees
the University
Il
(2000).
linois,
App.
case,
318 Ill.
3d
533-34
the present
argues that judgment notwithstanding the
should
have been
(1)
granted for three reasons:
was probable
there
cause to continue
(2)
the prosecution against
the plaintiff;
there
no evidence
(3)
malice;
are
verdicts
inconsistent.
cause,
probable
With
regard
this court has commented:
“Probable cause has been defined in a malicious
case
involving
proceedings
criminal
as a state of
facts
would lead
person
ordinary
believe,
prudence
caution and
or to entertain
and strong suspicion,
honest
that the person arrested commit-
ted
charged.
County
Co.,
the offense
v.
Coal
Knox
Midland
265 Ill.
782, 787,
App.
(1994);
Burghardt Remiyac,
3d
640 N.E.2d
(1991).
402, 405,
App.
Ill.
It
Moreover, negligent or is grossly a mistake error that will not af- fect the of question probable prosecu- an action for malicious cause by tion when is an complainant there honest belief the ac- guilty Turner, cused of probably App. is the offense. 91 Ill. 3d at 935. ground guilt may “A reasonable an accused be belief of on persons personal on information from other as well as knowl- (1875), 40; edge. 32, (Harpham Whitney Mangus 77 Ill. v. Cock [(1977)].) Co., 110,] App. Robin 3d It [52 Ice Cream Ill. 117 is not necessary verify to the correctness each item information so obtained; prudence is sufficient to act with reasonable and cau- Co., Cream proceeding. Mangus [52 tion in so v. CockRobin Ice Ill. 117; Mays (1887), 286, App. App. 3d] at Gardiner v. 24 Ill. 289.” Turner, App. Ill. 91 3d at 935. a claim is fatal to cause prove probable a lack of
Finally, the failure prosecution: for malicious is the instituting proceedings probable cause
“The want and been [citations] it has action prosecution a malicious basis for (Freides v. of action indispensable element of the cause held an 295, (1965), 2d Manufacturing 33 Ill. Sani-Mode Co. Cream,Co., App. 3d] 286; Mangus [52 Ice Ill. v. CockRobin that there N.E.2d 116). cause to institute appears probable at If it an ac bar to proceedings, such fact alone constitutes an absolute Robin Ice Cream Mangus v. Cock prosecution. tion for malicious (1918), 116; App. Ill. Co., v. Tucker App. [52 3d] Ill. at Brown Turner, 91 3d App. 162.” Ill. at 934-35. argues probable it had case, Target first present that the this, Target points For fact plaintiff.
cause to arrest the false claims. plaintiffs arrest jury found in favor it and Garcia or arrest, restraint prove for false must To sustain an action defendant, having his reason procured by arrest without caused or plaintiff. committed grounds able to believe that offense was (and (1990) Co., Ill. Meerbrey v. Marshall Field & 2d therein). Accordingly, argues finding against that in Target cases cited claim, jury necessarily on her false arrest found offense Target grounds reasonable believe that an Garcia by the cause in the plaintiff. probable was committed And where criminal setting person “a state of facts that would lead a is defined as ordinary believe, or honest prudence caution and to entertain an strong offense suspicion, person that the arrested committed the 348), charged” (Rodgers, Target argues that it and at had, least, probable plaintiff. cause to arrest the Next, for the Target argues probable cause existed commence- plaintiffs prosecution ment of as Under instruction No. well. parties agreed, to which both was advised: agent respect are sued principal “The defendants plaintiffs malicious plaintiffs prosecution false arrest claim and upon prosecution. claimbased the commencement Defendant agent. you is its If principal is the defendant Garcia maliciously find is arrest that defendant Garcia liable false commencing you then must find that defendant prosecution, However, find you also if that defendant Garcia liable. mahciously commencing prosecu- not tion, for false arrest or liable Target is not hable. you then must find that defendant * * [*] continua- plaintiffs prosecution As mahcious claim based on Target, only plaintiff, tion of the may held liable.” *15 held, As defendants and note we have the found Garcia not li- able maliciously commencing prosecution, as is evident in its statement, you “we found guilty prosecution.” of malicious Ac- cording instruction, the jury therefore, Target was also not liable the commencement of the and prosecution, against Target upon can be based only prosecu- the continuation of way, jury necessarily tion. Put another because the found that neither Target nor Garcia liable for the events that occurred on January (the arrest), night plaintiffs plaintiff where was arrested and prosecution of her was commenced signing with Garcia’s complaint, Target’s the criminal liability only upon can be based of prosecution, namely, continuation the three court dates that oc- curred and April between March of 1998. argument
Defendant’s last on this is that Target issue also had probable cause end, to continue the prosecution. *16 Target’s reason- to no as how reply, explanation offers plaintiff dissipated the plaintiff committed belief that an offense was
able acting on behalf and when the time she was arrested between such, find As we against her. Target, complaint the criminal signed of the malicious not liable for principal of Garcia—was that —as only the and, consequently, that prosecution commencement of prosecu- malicious continuation could have found liable the tion. list of factual inconsisten plaintiff 3x/2-page
In that offers a regard, Target’s that, by demonstrating argues, supports cies she the verdict example, For probable prosecution. lack of to continue the cause tell one plaintiff Claybon anyone notes: Garcia and failed to that clearance; missing on there was a plaintiffs purportedly binders was transaction; regarding the videotape there were inconsistencies of the APTL, Fiala; his Brad frequency of conversations Target’s incident timing price there were and inconsistencies between verify to the complaint; and the criminal Silnes was unable report Anderson, the price evening; all that Donna purchased the binders Williams, duty, cashier and Keena the leader on were supervisor, transaction; did not present videotape during plaintiffs on the Silnes to videotape 1998; Target allegedly the failed view until November Garcia; the dates and and were communicate to Silnes Lawson get a for three binders for plaintiff attempted aware that to refund charged which she was and did not receive. $1.24 however, anything so allegations, suggest None of those substantial Target’s to make committed a crime unreason- plaintiff as belief that to probable necessary able and to remove the cause continue they fact are plaintiff, especially light of the that Accordingly, Target supported by any not references to record. notes, are to and Silnes’s those assertions either irrelevant Lawson’s they arrest and not her simply plaintiffs state of mind or address prosecution. Claybon anyone nor told example:
For the fact that neither Garcia allegedly nothing on plaintiffs that one of binders clearance does was there impression, or where reasonableness Silnes’s Lawson’s or of Garcia’s and no evidence that either Lawson Silnes knew was the al- Claybon’s knowledge; there is no evidence of what existed on that or was aware what was legedly missing tape, or Lawson Silnes Fiala could tape; spoke number of times Garcia and on actual in the minds of possibly operate exculpate plaintiff Lawson Silnes, such appears irrelevant; where information timing to be monetary discrepancies the arrest report Target’s between report incident do not the plaintiff exonerate from purchasing under- rung each, binders at verify $1.24 where Silnes was able to prices of those receipt; binders defendant’s neither Donna Anderson nor Keena Williams was present up, when binders at were rung issue and there is no evidence that either Anderson Williams authorized the price Campos charged that plaintiff binders; assuming for the even (after did videotape Silnes not view the until November call), criminal case the plaintiff had been stricken off the tape failure view that impact would issue of whether probable cause existed where investigated Silnes also the correct prices binders, statements, read witness and reviewed the other case; evidence in this even if believed testimony Garcia’s give dates, did not him the proper court such fact a would be irrelevant to Lawson’s and Silnes’ belief committed theft3; finally, fact trying obtain refund for the three binders did appear she not receive does not establish lack of probable attempting get cause where she was refund *17 returning thereby without anything, causing monetary Target. loss to evidence,
The even viewed in the light most favorable to the plaintiff, high plaintiff probability purchased establishes the that bind ers at price unreasonably price. a than actual lower their retail Ac cordingly, evidence, Target through based on that it also appears that — Lawson a plaintiff and Silnes —at least had reasonable belief that participated illegal in this under-ringing. plaintiff And because has very record, presented evidence, little substantiated that refutes belief, that reasonable we hold that for Target’s judgment motion granted. Quite verdict, n.o.v. should simply, have been based evidence, on this cannot stand.
However, to even were we assume that no probable cause prosecution against plaintiff, existed to continue the must she still prove Target perfect existence of malice on behalf of or its to agents intent, her claim prosecution. ‘[t]he of malicious “Malice defined excuse, justification wrongful without or to commit a Black’s Law act.’ (7th 1999).” Ass’n, Ill. 3d Dictionary App. ed. Illinois Nurses malice, 534. that “in you was instructed order to find proceedings must find that the were commenced or continued with the purpose injuring [plaintiff] purpose or some other than 3Moreover, plaintiffs Target Claybon is assertion that never contacted merit, telephone messages that without where Lawson testified he left with Claybon the date. about It is by [plaintiff].” offense a commission of a criminal
establish plaintiff prior never met undisputed that Lawson and Silnes no pending, and there was proceedings the criminal were time that bore plaintiff that Lawson Silnes suggested presented evidence establish any other reason than to acting ill will or was from fact theft. This much evident committed plaintiff man- in the same employees all three former Target proceeded plaintiff. out the single ner and did could notes, presented that only plaintiff
As evidence Target do of malice has to argument the existence possibly support an stated, plaintiff testi- previously not Lawson or Silnes. As with Victor, a had engaged fied to a man named and Victor that she was dating plaintiff. Alice did like stepmother named who Victor friends, feelings, they Because are Alice told Garcia her and Garcia This, we together. told the that she and Victor should not be plaintiff think, finding a acted with support does not that Lawson Silnes prosecution of the continuing plaintiff. malice in may be Moreover, this is not a situation in which malice only may probable Malice be inferred from lack of cause inferred. where there is no other credible evidence which refutes that inference. (1990). Kamberos, 206 In the present Salmen v. Ill. case, there is sufficient that both Lawson and Silnes acted evidence in theft. Accord good-faith engaged belief that ingly, even if we that evidence does not rise to were assume plaintiff, probable level cause continue the of the Whitney, Ill. Harpham the inference of malice. See still refutes (1875) (“[I]f justify by proof prob 38-39 the defendant can not cause, by showing he may presumption able still rebut malice time, facts at the on the mind produce and circumstances calculated to man, prudent well-grounded suspicion of a belief or reasonable 515”). Torts,] party’s guilt. [1 Hilliard on And because present any through failed other evidence that Lawson — find continuing prosecution, again Silnes —acted with malice in we failing enter n.o.v. for trial court erred in prove failure to that element of her cause. *18 plaintiffs based Alternatively, Target also asserts that the verdicts and, therefore, should be set irreconcilably this case are inconsistent Bock, Inc. Agency, aside as a matter of law. Wottowa Insurance v. See (1984). 311, case, argues, 104 Ill. In because 2d 316 this reject claim probable plaintiffs of cause to equivalent found arrest, to continue the probable of false found lacked cause but that, although Target argues prosecution, verdicts are inconsistent. issue, other this decisions from precise no Illinois court has ruled on 78
jurisdictions have held that probable cause to arrest will defeat a mali-
cious prosecution
plaintiff
claim
unless
demonstrates
that ad-
light
ditional facts came to
after the arrest
negate probable
that would
cause. “It is well settled that in the
of an
absence
Illinois determina-
tion
point
law,
on a
of
jurisdic-
courts of this state
look
will
to other
(1957).”
persuasive
Hinrichs,
tions as
authority. Cooper v.
defendant who has
‘probable
cause’
ato
‘reason-
able
complete
detention’ has a
defense to
a cause
action for false ar-
rest or
imprisonment
that
the existence of such ‘probable cause’
will
to bar an
prosecution
serve
action for malicious
as well [cita-
Feinberg,
953,
tion].”
at
A.D.2d
N.Y.S.2d at 27.
court
then
added,
course,
“[o]f
should some
fact
intervening
become known to
defendant
time
prosecution
between the
of detention and the time of
which
plaintiff, any
prosecution
would serve to exonerate the
further
at that
point
wanting
probable
would
cause. Under
such
circumstances,
action
malicious
lie even
would
though
falsely imprisoned
[citation].”
was
detained
953,
Feinberg,
Ultimately,
83 A.D.2d at
at
N.Y.S.2d
27.
Fein-
berg court found that because
intervening
no
circumstances occurred
appellants’ probable
“would vitiate
cause
detain
subse-
quently prosecute
plaintiff”
(Feinberg,
79 precluded for the arrest jury’s finding probable cause The verdict as a matter of law. plaintiff for malicious irrational, dismissed complaint set aside as should have been at Brown, at 459 592. 92 A.D.2d N.Y.S.2d as a matter of law.” does not neces- by noting that false arrest plaintiff responds The police (Lopez by been arrested sarily require that an individual has may it House, (1984)), and that App. 3d v. Winchell’sDonut (Marcus Liebman, App. Ill. 3d by words alone be effected (1978)). jury “[t]he could Here, therefore, plaintiff suggests that that room willingly into the back plaintiff found that went have and/or given arrest was reasonable the initial detention and even *** that there was jury obviously determined circumstances. point Target should that some some reason for the detention but at Accordingly, to end.” because proceedings have caused the criminal plaintiff never detained the jury is that the found that Garcia possible grounds to finding that he had reasonable against her will—instead necessarily are inconsistent. Put another detain her—the verdicts entirely possible jury is that the never even entertained way,because it grounds to the issue of whether Garcia had reasonable detain necessarily that verdicts were plaintiff, it does not follow inconsistent. arguments, plaintiff her have appellate brief and oral would willingness accompany of her Gar-
this believe that the issue least, was, jury and that cia to interview room at before voluntarily found consented to Gar- suggest evidence to that she request. complaint, 10 and 11 her amended Paragraphs cia’s however, upon that her focus the voluntariness demonstrate restraint, relied grounds upon of her but the which Garcia to effectuate that restraint: belief probable
“10. Neither had cause or reasonable defendant plaintiff any that criminal offense. either committed of, signed upon criminal 11. As direct result based plaintiffs and arrested each of the complaints police liberty.” custody, into of their deprived took them them version of Accordingly, plaintiff because the offered no testimonial the contention support events and because no other evidence exists room, we to the interview plaintiff willingly that the went with Garcia considered, less impossible find it could even much have decided, her false arrest claim on perfect could not ground. by effectuated
Moreover, agree may while that false arrest we through “restraint,” key to either scenario either “an arrest” or having grounds alleged that the offender acted reasonable “without believe committed plaintiff.” Meerbrey, offense was noted, Ill. 2d probable at 474. As cause setting criminal defined as “a state person ordinary of facts that would lead a cau- prudence tion believe, entertain an and strong honest suspicion, that the person arrested committed the charged” offense 348). (Rodgers, 315 Ill. As suggest cannot anything to distinguish (i.e., grounds” those two standards that “reasonable believe an offense has been committed is a weaker standard than an strong suspicion” “honest and that an committed), offense has been are, that they we think for all purposes, equal. *20 therefore,
Because of equality, that it stands to reason that our sister in that, barring courts New York are correct any intervening events, a finding grounds a defendant had to reasonable arrest a plaintiff also to the satisfy probable requirement sufficient cause for instituting proceedings criminal the plaintiff. Accordingly, in such circumstances, that the of finding equivalent “probable of cause” should serve to bar action prosecution. present for malicious In the case, neither the plaintiff any example nor the record offers of an intervening cause would Target’s grounds invalidate reasonable to prosecute plaintiff. any and then the Without interven- detain/arrest ing cause, the jury’s finding of grounds plaintiffs reasonable arrest a necessarily prosecution forecloses for malicious as a of find Therefore, matter law. also we on alterna- ground tive trial failing judgment court erred in to enter n.o.v. for on the inconsistency jury’s based of verdicts. our issue dispositive, Because decision as to this we need not ad- arguments. of any Target’s remaining Accordingly, reject dress we plaintiffs jurisdiction. motion to dismiss Garcia’s for a lack claims addition, we failing grant hold that the trial court erred in to motion tune dismissing defendants’ for nunc order Garcia as a party. Finally, refusing grant we find the trial court erred to Target judgment Target had probable n.o.v. because cause continue plaintiff, its of the no evidence of provided malice, and the verdicts are inconsistent.
Reversed.
KARNEZIS, J., concurs. HARTMAN,dissenting:
JUSTICE
supreme
explicated
Our
court has often
the relative functions and
juries,
appellate
Among
courts.
the most
authorities
trial courts and
subject
venerable
opinions
cited and
on this
is the
frequently
followed
(1992)
“An issue initial court, court, and their appellate authority jury, trial province it is the Unquestionably, relationship to one another. evidence, pass the cred- upon in the jury resolve conflicts witnesses, weight given should be ibility of and to decide what reweigh court testimony. A trial cannot [Citation.] to the witnesses’ jury could merely because the the evidence and set aside a verdict conclusions, or because the inferences or have different drawn [Citations.] other are more reasonable. court feels that results Likewise, usurp the appellate should not function submit- questions fairly jury judgment and substitute of fact ted, tried, greatly which did not and determined evidence from added.) Maple, Ill. 2d at way.” (Emphasis preponderate either 452-53. be to fact finders in our great temptation may
As as the emulate functions, review, prius nisi as usurping this court must avoid such later, was confused with settled law directs. As will be seen finder, remedy to its as fact for which the respect appropriate role should be reversal and trial rather than as new facts application facts this court and those strained law justice. the detriment of law majority opinion, approach
In the to the instant trial appropriate majority up obliterates boundaries and the itself sets *21 and, having findings, fact finder made to them. Re- proceeds review during the presented countal evidence to the trial this prespective following case from a different the and demon- reveals a why appropriate. strates and trial would be reversal new Plaintiff, Johnson, food avenue team leader supervisor Melissa and female, years old and the Target for was an African-American by boys. disciplined Target prior mother of two She never been to had 16, incident, the to January January the date of 1998. Prior signed who the protection employee, Ruben a senior asset Target, on behalf had original complaint against criminal Johnson disapproval dating being with Johnson of her and discussed his Target. to a close to engaged employee Mexican Garcia was the family. January 16, planned employee’s Mexican On Johnson get leader, Curtis, her a ride home from another team Gwen when ended, shared shopping, shift so waited. She and Curtis did some she binders, cart, items, including shopping same selected various register designated employee purchases. then for specific went a on The more than one was trained evidence reveals that video registers. checkout One videotape purportedly the checkout showed Anderson, a supervisor, Donna cashier standing behind Ronna Cam- pos, employee’s register, subject cashier at during transac- She talking tion. later was seen a Campos with at different location. The purportedly Williams, video also Keena showed the store leader duty, one of at keying register. in items purchased
Johnson for sons, ages binders the use of her two Target nine and six. The employee display the binder had location her clearance, told that the binders were on which meant pos- the best price. sible did regular price Johnson not know the or sale of the bind- She ers. also some bought boys’ clothing. paid items of She the cashier and, Curtis, for her items employee $30.75 went to the exit. Corey Claybon, store alarm sounded. protection another asset employee, see asked to of her then bag, contents examined the receipt, binders, nine, noted that she had six charged but she was for and told her get three more binders. She not find could more bind- Anderson, ers and went to her supervisor, Donna cashier who told get was, Claybon refund. She went back to where then to refund line where Ruben said he to talk im- Garcia wanted to her mediately. got She out of the without any line refund and went with to an When office. Garcia told her that had she merchandise bag for, her been paid receipt had not she asked him look at and tell her They what had not been for. paid later discussed whether underrung, knowledge. the binders were of which she any denied entered, police placed Evanston her escorted handcuffs and her to left, squadrol. When she retained the merchandise that she purchased, as as the money paid well she for that merchandise. Fiala,
Brad protection the assets team at the leader Evanston 16, 1998, on January present occurrence, store but during was not investigated occurred his report superiors. what and made Fia- report la’s showed was full retail value of the items $155.79 evening. involved stated no merchandise was recovered that merchandise, According report, “passed”4 to Fiala’s Johnson received although Target passed later admitted Johnson received no merchan- dise. allowed Johnson to return three of the binders that she bought that night ready was to refund her for each. There $1.24 purportedly showing returning is a service desk video three Johnson contradiction, binders. also report stated $155.79 he report accuracy recovered. Fiala reviewed the before sent it supervisor. paid The merchandise Johnson had been his *22 Target selling again. Parenthetically, returned to the floor for to sell 4Unpaidfor. $30.75 to Johnson of separate award that the made significant by Target. paid items for but confiscated
for the criminal sign that Garcia was authorized Fiala admitted complaint signed the criminal and Garcia his absence complaints swore Target. complaint, In the Garcia against Johnson on behalf of Fiala did goods $9.44. at Johnson had received valued $99.44 that Target No one from comprised those numbers. not know what items referred to. complaint the numbers the criminal knew what overcharged for three Fiala that Johnson was either admitted Fiala that she wrong. was stated binders or the number she received three, leaving six, through nine, line with and she returned went likely alleged she stole nine. Johnson most reports but all that she in the interview placed those binders before was returned three why a “thief’ was to return room. Fiala did not understand allowed not what some, all, goods. not He did remember but “stolen” this; any report. it is Garcia said about not signed complaints all criminal Ruben Garcia testified that he three allegations at He the correctness of the police station. swore to manager, although security that he was a admitted swore manager that security that Garcia was not at time. Garcia read signing the criminal them. Garcia had been called complaints before security Corey Claybon, watching room and met with who was Campos’s register. speak Johnson and check Curtis out He did He supervisor night. employee the cashier did see some other register during come to the transaction. Garcia admitted if told cashier hypothetically supervisor the cashier binders $1.24, only were be at supervisor then cashier cashier would machines taping transaction, There fault. were two different video angles. from two different After Garcia talked with Fiala first time, Claybon price and came went determine binders back and told him it was $13.99. deposition admitted that in his he testified Johnson and clearly
Curtis each one on clearance that “had binder was was priced deposition he clearance.” Garcia also admitted that at his testi- clearly fied that he those binders were marked as on clearance knew day binders, he at the his because earlier that looked which children use, might purchase price. them at that He had taken wanted clearance, them in his and was of which were on because hands aware deposi- his they tag. exhibited red sticker Garcia also testified that in clearly marked tion he stated that one of Johnson’s binders anything wrong. continually doing clearance. Johnson denied Fiala, report he that Johnson spoke When next Garcia did report a clearance sticker on it. No and Curtis each had binder with or document stated that at least *23 one binder each on woman was trial, At clearance. reversed Garcia himself testified he did that not the any binder, see clearance sticker on although Garcia admitted thought he he had he previously actually testified that had the seen not police clearance sticker. He did tell the that some on binders were clearance.
Garcia was never asked about the or videotape by second Fiala Target other tape officials. was unable to the produce second (The trial, though entity it was the last that possessed it. circuit court gave Instruction, Civil, the Jury (1995), Illinois Pattern No. 5.01 the missing as to Garcia tape.) taping testified that the on was done video stopped two monitors. He the taping one so that he could taped. review what had been tape goes end, One from beginning the opposite one from the side the one that he stopped was review.
Garcia he testified that swore to the truth of the criminal Johnson, against but that no complaint he had idea of what $99.44 the which charged represented. with she was with stealing knew Garcia that Johnson did nine that if get reports say not binders and the she they are wrong. thought did Garcia the was for bind- $99.44 five or six ers, for which paid receipt, buy- she The which shows $9.44. Johnson $1.24, $11.16, ing nine binders at for a total of also is Garcia wrong. from, although did not know where the came he $9.44 swore that was complaint. number true and correct on the criminal He believed got Johnson was nine charged only binders but five or He six. never told that to anyone. activity por- Garcia testified the case *24 II, arrest, no. Count III as Count I and false IV, prosecution, yes.
and malicious damages against compensatory We award the $75,000.” pain suffering experienced, For as follows: defendants added.) (Emphasis began court then polling process, follows: you, Bloch, your “Beginning with Ms. verdict you signed your time that it and is now? and, yes,
JUROR It was it is. BLOCH: THE COURT: Ms. Reed?
JUROR REED: Yes.
UNIDENTIFIED JUROR: Yes.
UNIDENTIFIED JUROR: Yes.
UNIDENTIFIED JUROR: Yes.
UNIDENTIFIED JUROR: Yes.
UNIDENTIFIED JUROR: Yes.
UNIDENTIFIED JUROR: Yes.
UNIDENTIFIED JUROR: Yes. JUROR:
UNIDENTIFIED Yes. JUROR:
UNIDENTIFIED Yes.
UNIDENTIFIED JUROR: Yes. affirmative, jurors having
THE All answered in the I COURT: form, punitive read next find that the verdict A-l: We Garcia, damages Against no. should be awarded as follows: Ruben defendant, Against Target, yes. Garcia, damages in the of zero punitive
For Ruben sum one, Target, $125,030.75, [sic] as two checks $125 be written and one $30.75. And, again, purports this signature to bear the of all twelve
jurors. Again, starting you Bloch, with Ms. your was that verdict as to punitive damages at the you signed time that this verdict form your and is it verdict now? Yes,
JUROR BLOCH: yes, it was and it is. THE Again, COURT: jurors all having twelve answered in the af- firmative.” having
After polled above, as noted the circuit court then remarked:
“Counsel is prepare directed to judgment order consistent with jury’s verdict and purpose directed to enter the verdict.”
After directing counsel to draft an order reflecting verdict, the court stated:
“I don’t think I want to read I prefer you this. do this. I have been handed a statement of some bearing signatures kind jurors, of the and I’ll foreperson allow the to read that if she wishes. JUROR BLOCH: Mr. in lieu of the fact that you we found guilty malicious by our interpretation of the law given us, jury gives intent the to be more responsibly fill out your paperwork or to thorough do more investigative work and be responsible appearing in court.”
After the statement record, was read into the no clarify motion to the record or question jurors or to correct the record or to amend the record or to enter any objection kind of was made by Gar- cia or Target.
The court then observed: Bloch,
“THE COURT: Ms. gentlemen ladies and jury, I you want to thank your did, fact, service. You pay careful at- throughout tention I trial. know that ap- counsel and the court *** preciate the you provided. service I discharge you, and you at this time are free to discuss this case anybody you may *25 that with, choose to speak including the at- torneys.
}¡s * If any questions there’s that I can permitted answer that I’m to within the ethical prescribe conduct, boundaries my then I glad try you can’t, will be to talk to about those as well. And if I your I’ll Okay? Again, my let know that. heartfelt I ap- thanks. preciate it.” objection
No record was made any questions by nor asked any of the parties, any jurors their counsel or following these remarks.
To reach the conclusion jury’s the extra-verdict statement here, majority controls the only partial cites from excerpt Chalmers
87 (1982) 539-40, 361 532, 431 N.E.2d 88 Ill. 2d City Chicago, v. of (Chalmers). by procedure authorized unique the In consideration of law, development the and in fairness to majority the decision applies it to this issue must as opinion the of the Chalmers balance set forth. us seeks to us under the facts before apparent
“It is in recorda- a ‘clerical’ mistake impeach the verdict not because of the instructions or misapprehension the jury’s tion but because clearly type impeachment findings. their This the effect of impermissible. testimony the or are in accord that The authorities affidavits of jurors the misunderstood the cannot be used to show (rev. (see 2349 Wigmore, the law sec. ed. instructions or Evidence 1961) therein), finding or particular and cases cited the effect of 169(n) (see (1950); Trial sec. 76 Am. their verdict 66 C.J.S. New (1975)). the meaning Trial sec. 1220 Jur. 2d effect of ‘Hence, the judged by its terms alone. no statements must be from jurors, be resorted unanimously individually either or can to for (8 meaning Wigmore, explaining changing legal or effect.’ (rev. 1961).) Wigmore ed. As Dean Evidence sec. at 723 explains: general principle legal be so that a by
‘This must
virtue of
by
and not
act is to be construed
the words used in it
meaning
person uttering
[Cita-
or intention of the
them.
private
motives,
intentions
jurors’
tion.] To resort
beliefs or
would
***
general principle
Wigmore,
Evidence
[8
be to violate
sec.
(rev.
1961)]
[that]
ed.
the verdict as uttered
the sole
the jury’s act and must stand as such without
embodiment up
which
to its
regard
[8
motives or
have led
act
beliefs
1961)].’
(rev.
ed.
Wigmore, Evidence sec.
***
error,
prior
discovered
there was
should have been
If
discharge,
could have taken
point
judge
at which
trial
might
appropriate.
right
such action
have been
Plaintiff
jurors
poll
jurors.
She cannot now substitute the affidavits of
purpose
following
parte
her ex
with them
communication
their
impeaching
verdict.
inconsistency
jury’s special finding
In view of
between the
verdict,
correctly
general
and the
the trial
disallowed the
(See
110, par.
Ill.
ch.
punitive damages.
Rev. Stat.
award
241.)
(1981),
65; Albaugh
Cooley
Ill. 2d
For the reasons stated
jurors
post-trial
predicated upon
relief
affidavits of
added.) Chalmers,
Following
appellate court
Couch v.
(1996)
(Couch),
Co.,
ance
Ill.
88 “It is well settled that the meaning a verdict must be effectof
judged its terms alone. City Chicago, Chalmers v. 88 Ill. 2d from 532, (1982). 539, 361, 431 N.E.2d 365 Consequently,no statements by jurors, either individually or unanimously, may be resorted explaining changing or meaning verdict’s legal or for effect. Chalmers, 539-40, 88 365; Ill. 2d at 431 N.E.2d at Sale v. Allstate Co., 905, Insurance 126 App. 925, Ill. 3d 1023, 467 N.E.2d (1984).Only evidence jury that the considered extraneous informa- tion can be impeach used to a verdict. See v. Macias Cincinnati Forte, (1996).” 947, 950, Ill. App. 472, 3d 661 N.E.2d added.) (Emphasis Couch, App. 279 Ill. at3d 1056-57. And, in Sale v. Co., Allstate Insurance App. 126 Ill. 467 N.E.2d (1984) (Sale), appellate court noted:
“Testimony or jurors affidavits of cannot be used to show that the jury misunderstood law, or instructions the effect of a particular finding, or of their The meaning verdict. and effect of judged Hence, verdict must be from its terms alone. no state- by jurors, ments either unanimously individually, or can be resorted to explaining or changing meaning its legal or effect. (Chalmers City Chicago (1982), 539-40, 88 Ill. 2d 365.) N.E.2d We hold that the trial court properly denied plaintiffs motion predicated for a new trial upon the affidavit of added.) juror.” (Emphasis Sale, 3d at 925. It cannot be said that the circuit court properly should have entered a nunc tunc order in judice the case sub exonerating Gar- circumstances, cia under these majority Instead, as the rules. court should clarify have endeavored to findings verdict and there, then and when the note was handed to the by court and read juror Clearly, into the record. jury confused; its statement was inconsistent with Chalmers, its verdict. Under the court was obligated to take appropriate ameliorative action by questioning the jurors they while were still in court before it straighten out the patent inconsistencies or vacate the verdict and grant a new trial. As above, set forth there is ample upon evidence which action for malicious prosecution proceed. can hold, do,
To now majority as the would that the statement prevails verdict, Chalmers, over its as verified poll, its overrules at least stands that I decision its head. would follow Chalmers and progeny, grant judgment reverse and remand for a new trial. To Garcia and as a matter law miscarries the rule of law and failing rewards their indolence in to take remedial action until almost four months after the had been discharged dispersed. For above, the reasons stated I and remand would reverse new trial. notes transaction with Donna Williams, duty, present Anderson Keena leader on were approved charged However, the price for the binders. neither Anderson present nor rung. Williams was when the binders were transaction, observing plaintiff’s As Garcia continued APS Claybon allegedly went onto the sales floor to determine the retail price reported binders at issue and to Garcia that the binder he price checked had a retail After paid $13.99. for her $30.75 items, she and through employee Curtis went to leave the store exit, and an alarm Allegedly, Claybon plaintiffs sounded. checked the receipt bag, charged found that she had six binders nine, get finding and told her to three more binders. After no ad- binders, Anderson, supervi- ditional she was told Donna the cashier sor, get that she refund. Clay- should She then went back to where
Notes
To that notes only Lawson and Silnes were Target representatives involved in continuing the proceedings against plaintiff January after 1998. Consequently, the main and inquiry whether Lawson Silnes probable cause plaintiff. to continue the of the As case, noted in the this facts of Lawson and determination Silnes’ proceed employees upon case all three was based file, their videotape review the and witness statements on their checking price question. of the items in videotape Campos A passed review reveals that several them, items to Curtis her for charging hand-keying without while transaction, several plaintiff other items. After made Curtis’s then (which gesture Campos hand Lawson and Silnes believed was “knowledgeable causing under-ringing”) Campos then charged each normally anywhere for 6 binders that $1.24 cost from Campos’s This corroborated statement $13.99 $20.99. plaintiff “gave price her plaintiffs of the binders” and statement price, [binders] Ask[ed] that she “selected herself. several about replied she it price. was discounted below sticker That what she rang up price.” [the] told the cashier. So cashier below marked videotape Campos reveals Silnes determined to be also what hand-keying undercharging some of other items and her for plaintiffs shirts, purchase two as plaintiff presenting untagged well as items for Target policy. violation of This is bolstered further provided by Claybon independent documentation review Silnes’s stated, prices previously the merchandise. As binders priced been of- originally $13.99 between would have $20.99 And, price. fered for a clearance than 90% of their retail price less admitted, refused to of her version of prepare she statement Silnes for Lawson and very little reason events, there was appears so it or their observations veracity the witness statements to doubt videotape. on the
notes tion of the report discount, incident stated that was the total $70.60 he but that did not know how that report was calculated. Another $70.42, being signed listed discounted items as and Garcia also paper, but he did not know where that number came from. In report, signed, another he did which Garcia admitted that Johnson specifically, any not tell cashier that binders were $1.24 specific price. According Garcia, Campos the video phone during shows transaction, the checkout but Garcia did ask her The not about that. woman, Campos, shows a in the hand-keying video cashier price items, speak for certain but Garcia did to that woman did not know who she was. Garcia that the video testified showed light, have as- turning cashier on her which could been a call for which supervisor. missing sistance from her The video would show light primary was on. Garcia admitted that the stated that the report merchandise, passing reason Johnson’s arrest was but any any did not or receive pass passed Johnson merchandise tell Johnson report no that he heard merchandise. Garcia wrote binders, he was although charge for the what price the cashier observations. important to document trained read, was majority although verdict The asserts that the juror and affirmed juror, polled and each signed by each verdict, a state- nevertheless of them was their signed verdict each signed vitiated the judge to the somehow ment thereafter handed finding Ruben and, specifically in verdict verdict contradiction the statement prosecution, as to malicious guilty disposition true representing jurors’ prevail must better before it. cause following to the respect report proceedings reflects question: event purporting forms of “THE COURT: I have been handed signature jurors. of all to bear twelve The first reads as of which follows: We favor find defendants, Ruben plaintiff, Melissa Johnson and