author: MARY EILEEN KILBANE, P.J.:

text:
    Barbara RIEGER, Plaintiff-Appellee v. GIANT EAGLE, INC., Defendant-Appellant
    No. 105714
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: May 10, 2018
    Roger H. Williams, Christina N. Williams, Williams, Moliterno & Scully Co., L.P.A., 2 Summit Park Drive-Suite 235, Cleveland, Ohio 44131, Scott D. Livingston, Marcus & Shapira, L.L.P., One Oxford Centre, 301 Grant Street-35th Floor, Pittsburgh, Pennsylvania 15219-6401, ATTORNEYS FOR APPELLANT.
    John J. Wargo, Jr., Thomas M. Wilson, Wargo and Wargo Co., L.P.A., 30 Park Drive, Berea, Ohio 44017, ATTORNEYS FOR APPELLEE.
    BEFORE: Kilbane, P.J., Celebrezze, J., and Jones, J.
    JOURNAL ENTRY AND OPINION
   MARY EILEEN KILBANE, P.J.:

{¶ 1} Defendant-appellant, Giant Eagle, Inc. ("Giant Eagle"), appeals from the trial court's order entering the jury verdict in favor of plaintiff-appellee, Barbara Rieger ("Rieger"), and awarding Rieger $121,000 in compensatory damages and $1,198,000 in punitive damages. For the reasons set forth below, we affirm the compensatory damages award and modify the $1,198,000 punitive damages award by remanding to the trial court to enter an order setting the total amount of punitive damages awarded to $242,000.

{¶ 2} This appeal arises from injuries Rieger sustained as a result of a December 2012 accident in a Giant Eagle store with Ruth Kurka ("Kurka"). Both Rieger and Kurka were shopping at Giant Eagle at the time. Rieger was standing in front of the bakery counter with her shopping cart when her shopping cart was hit by a Giant Eagle motorized cart driven by Kurka. This collision caused Rieger's shopping cart to hit Rieger who then was knocked to the ground.

{¶ 3} In February 2014, Rieger filed a negligence action against Giant Eagle and John Doe. Rieger amended her complaint in May 2014. In her amended complaint, she alleges causes of action for negligence and negligent entrustment against Giant Eagle. She also alleges a negligence cause of action against Kurka, who passed away during the litigation. In June 2015, a suggestion of death was filed, and the Kurka Estate settled with Rieger for $8,500. Rieger dismissed Kurka from the lawsuit in April 2016.

{¶ 4} The matter then proceeded to a jury trial against Giant Eagle. The following evidence was adduced at trial.

{¶ 5} On the date of the accident, Rieger and Kurka and her husband, George Kurka ("George"), went grocery shopping at Giant Eagle. George helped his wife into a motorized cart and then parked his car. When he arrived at the bakery section, he observed his wife on the motorized cart and Rieger on the floor. He asked Kurka what happened, but she said she did not know. Rieger testified that she was standing in front of the bakery counter with her shopping cart when she was knocked to the ground. She was hit by her shopping cart, which was hit by a Giant Eagle motorized cart driven by Kurka. Rieger was not able to stand after the accident, and was taken to the hospital by ambulance.

{¶ 6} According to George, Kurka had never been trained on how to operate the Giant Eagle motorized cart and Kurka had been diagnosed with dementia prior to the December 2012 accident. A Giant Eagle corporate representative testified that the safety warnings placed on Giant Eagle motorized carts were for the safety of the driver.

{¶ 7} Rieger presented evidence of 179 incidents involving motorized shopping carts at Giant Eagle stores. These incidents occurred between February 2004 and November 2015 (which was three years after Rieger's incident). Of the 179 incidents, 117 of them occurred prior to the December 2012 incident involving Rieger.

{¶ 8} At the close of Rieger's case, Giant Eagle moved for directed verdict on the issues of negligence, negligent entrustment, and punitive damages, which the trial court denied.

{¶ 9} After the conclusion of the trial, the jury awarded Rieger $121,000 in compensatory damages and $1,198,000 in punitive damages. Rieger then filed a combined brief in support of her proposed journal entry on the jury verdict and a brief in support of her motion to determine R.C. 2315.21 unconstitutional as applied. Rieger noted the parties stipulated that any compensatory judgment awarded to Rieger would be offset by the prior Kurka settlement of $8,500. As a result, Rieger was entitled to $112,500 in compensatory damages from Giant Eagle. Rieger further noted that under R.C. 2315.21, her punitive damages award was limited to two times the compensatory damages award, which is $242,000. However, Rieger argued that R.C. 2315.21 is unconstitutional as applied to her case and the punitive damages of $1,198,000, as awarded by the jury to Rieger, should not be reduced. The trial court conducted a hearing on the pending motions.

{¶ 10} Following the hearing, the trial court granted Rieger's motion to find R.C. 2315.21 unconstitutional as applied. The court found that "the [j]ury's punitive damage award of $1,198,000.00 is within a constitutionally acceptable range and is not excessive; and, is within the confines of the legislative purpose of punitive damages which is to deter and punish." The trial court then entered a judgment awarding Rieger $112,500 in compensatory damages and $1,198,000 in punitive damages.

{¶ 11} Giant Eagle now appeals, raising the following five assignments of error, which shall be discussed together where appropriate:

Assignment of Error One
The trial court erred by failing to grant [Giant Eagle's] motion for directed verdict on [Rieger's] claim for punitive damages.
Assignment of Error Two
The trial court erred by finding that R.C. 2315.21, which limits punitive damages to twice the award for compensatory damages, was unconstitutional as applied in this case.
Assignment of Error Three
The trial court erred by failing to grant Giant Eagle's motion for a directed verdict on [Rieger's] claim alleging that Giant Eagle negligently provided motorized shopping carts to its customers.
Assignment of Error Four
The trial court erred by failing to grant Giant Eagle's motion for a directed verdict on [Rieger's] claim alleging that Giant Eagle negligently entrusted [Kurka], a customer, with one of its motorized carts.
Assignment of Error Five
The trial court erred by admitting 179 incidents involving a motorized shopping cart at a Giant Eagle store between 2004 and 2015 without any showing of similarity or other indicia of relevancy between these incidents and the accident in this case.

Directed Verdict

{¶ 12} In the first, third, and fourth assignments of error, Giant Eagle challenges the trial court's denial of its motion for directed verdict regarding Rieger's claims for punitive damages, negligence, and negligent entrustment.

{¶ 13} Civ.R. 50(A) governs motions for directed verdict and reads as follows:

When a motion for a directed verdict has been properly made, and the trial court, after construing the evidence most strongly in favor of the party against whom the motion is directed, finds that upon any determinative issue reasonable minds could come to but one conclusion upon the evidence submitted and that conclusion is adverse to such party, the court shall sustain the motion and direct a verdict for the moving party as to that issue.

Id. at (A)(4).

{¶ 14} A trial court's decision on a motion for directed verdict presents a question of law, which an appellate court reviews de novo. C4 Polymers, Inc. v. Huntington Natl. Bank , 2015-Ohio-3475, 41 N.E.3d 788, ¶ 28 (8th Dist.), citing Groob v. KeyBank , 108 Ohio St.3d 348, 2006-Ohio-1189, 843 N.E.2d 1170, ¶ 14. A directed verdict is appropriate where a plaintiff fails to present evidence from which reasonable minds could find in the plaintiff's favor. Id. , citing Hargrove v. Tanner , 66 Ohio App.3d 693, 695, 586 N.E.2d 141 (9th Dist.1990). It is the duty of the trial court to submit an essential issue to the jury when there is sufficient evidence relating to that issue to permit reasonable minds to reach different conclusions on that issue. O'Day v. Webb , 29 Ohio St.2d 215, 220, 280 N.E.2d 896 (1972).

{¶ 15} With regard to punitive damages, when a plaintiff fails to present sufficient evidence of malice on the part of a defendant, the court may properly direct a verdict in favor of that defendant on the issue of punitive damages. McCullough v. Spitzer Motor Ctr. , 108 Ohio App.3d 530, 536, 671 N.E.2d 306 (8th Dist.1996).

{¶ 16} Relevant to the instant case, "punitive * * * damages are not recoverable from a defendant * * * in a tort action unless * * * [t]he actions or omissions of that defendant demonstrate malice[.]" R.C. 2315.21(C)(1). The Ohio Supreme Court has defined malice as "a conscious disregard for the rights and safety of other persons that has a great probability of causing substantial harm." Preston v. Murty , 32 Ohio St.3d 334, 512 N.E.2d 1174 (1987), syllabus. The "conscious disregard" concept "requires the party to possess knowledge of the harm that might be caused by his behavior." Id. at 335, 512 N.E.2d 1174. Inherent in the award of punitive damages is that something more than mere negligence is required. Id. , citing Leichtamer v. Am. Motors Corp. , 67 Ohio St.2d 456, 472, 424 N.E.2d 568 (1981) ; Detling v. Chockley , 70 Ohio St.2d 134, 436 N.E.2d 208 (1982).

This concept is reflected in the use of such terms as "outrageous," "flagrant," and "criminal." The concept requires a finding that the probability of harm occurring is great and that the harm will be substantial. A possibility or even probability is not enough as that requirement would place the act in the realm of negligence. A requirement of substantial harm would also better reflect the element of outrage required to find actual malice.

Id. at 335-336, 512 N.E.2d 1174.

{¶ 17} Giant Eagle argues that permitting customers to use motorized shopping carts is not conduct that has a great probability of causing substantial harm. The issue in this case, however, is not whether Giant Eagle is obligated to provide motorized carts to disabled customers. Rather, it is Giant Eagle's obligation to protect its customers. Giant Eagle had actual knowledge of a nine-year history of 117 prior motorized cart accidents.

{¶ 18} Rieger presented evidence that, even though Giant Eagle had the corporate knowledge of these accidents, the injuries sustained by its customers, and the mechanism in which its customers were injured, Giant Eagle did not train its customers on the use of its motorized carts, had no policy on training its customers on how to drive its motorized carts, and did not have any policy to determine the criteria required for a customer to operate a motorized cart.

{¶ 19} The purpose of punitive damages " 'is not to compensate a plaintiff but to punish the guilty, deter future misconduct, and to demonstrate society's disapproval.' " Sivit v. Village Green of Beachwood, L.P. , 2016-Ohio-2940, 65 N.E.3d 163, ¶ 53 (8th Dist.), quoting Dardinger v. Anthem Blue Cross & Blue Shield , 98 Ohio St.3d 77, 2002-Ohio-7113, 781 N.E.2d 121, ¶ 187. " 'At the punitive-damages level, it is the societal element that is most important. The plaintiff remains a party, but the de facto party is our society, and the jury is determining to what extent we, as a society, should punish the defendant." Id.

{¶ 20} Based on the foregoing, we cannot say that Rieger failed to present evidence from which reasonable minds could find in her favor.

{¶ 21} With regard to Rieger's negligence claim, Giant Eagle argues she failed to establish that it breached its duty of care owed to her and that such breach caused Rieger's injuries. Giant Eagle claims that any danger posed by the motorized shopping carts was open and obvious and she failed to present evidence on causation. Even if it was required to provide additional safety instructions and training, Giant Eagle contends that these safety fixes would not have made a difference unless the accident occurred because Kurka either did not know how to drive the motorized cart or she suffered from some infirmity that prevented her from being able to drive safely.

{¶ 22} In order to prevail on her negligence claim, Rieger had to present evidence demonstrating the existence of a duty, a breach of that duty by Giant Eagle, and that Rieger's injuries were proximately caused by Giant Eagle's breach of duty to Rieger as a business invitee. Menifee v. Ohio Welding Prods., Inc. , 15 Ohio St.3d 75, 77, 472 N.E.2d 707 (1984), citing Di Gildo v. Caponi , 18 Ohio St.2d 125, 247 N.E.2d 732 (1969) ; Feldman v. Howard , 10 Ohio St.2d 189, 226 N.E.2d 564 (1967). The Menifee Court stated that

[t]he existence of a duty depends on the foreseeability of the injury. Ford Motor Co. v. Tomlinson (C.A. 6, 1956), 229 F.2d 873 ; Gedeon v. East Ohio Gas Co. (1934), 128 Ohio St. 335 [190 N.E. 924].
The test for foreseeability is whether a reasonably prudent person would have anticipated that an injury was likely to result from the performance or nonperformance of an act. Freeman v. United States (C.A. 6, 1975), 509 F.2d 626 ; Thompson v. Ohio Fuel Gas Co. (1967), 9 Ohio St.2d 116 [224 N.E.2d 131] ; Mudrich v. Standard Oil Co. (1950), 153 Ohio St. 31 [90 N.E.2d 859]. The foreseeability of harm usually depends on the defendant's knowledge. Thompson , supra.

Id. at 77, 472 N.E.2d 707.

{¶ 23} We note that an occupier of premises for business purposes may be subject to liability for harm caused to such a business invitee by the conduct of third persons that endangers the safety of such invitee, just as such occupier may be subject to liability for harm caused to such invitee by any dangerous condition of those premises. Holdshoe v. Whinery , 14 Ohio St.2d 134, 138, 237 N.E.2d 127 (1968) ; Restatement of the Law, Torts 2d, Section 344. However, an occupier of premises for business is not liable when the occupier does not, and could not in the exercise of ordinary care, know of a danger that causes injury to its business invitee. Id.

{¶ 24} Here, Rieger demonstrated that prior to her incident in December 2012, Giant Eagle had knowledge concerning the injuries sustained by Giant Eagle customers from motorized carts driven by other Giant Eagle customers. This prior knowledge is reasonably sufficient to establish the duty owed by Giant Eagle to its customers. This evidence is sufficient evidence from which reasonable minds could find that Giant Eagle was negligent.

{¶ 25} With regard to negligent entrustment, Giant Eagle argues Rieger failed to establish that Kurka was "an incompetent motorized cart driver."

{¶ 26} A negligent entrustment claim arises when the owner of a motor vehicle knowingly, either through actual knowledge or through knowledge implied from known facts and circumstances, entrusts its operation to an inexperienced or incompetent driver. Gulla v. Straus , 154 Ohio St. 193, 93 N.E.2d 662 (1950), paragraph three of the syllabus.

{¶ 27} In the instant case, Giant Eagle stipulated that it was the owner of the motorized cart and that Kurka operated the cart. George testified that his wife was diagnosed with dementia before December 2012. He further testified that she never received any training on how to drive the Giant Eagle motorized cart. Giant Eagle representatives testified that it does not provide any instructions or training to customers for the motorized carts. In light of the foregoing, Rieger presented sufficient evidence to permit reasonable minds to reach different conclusions on that issue.

{¶ 28} Upon consideration of the foregoing, we find that the trial court did not err by denying Giant Eagle's motion for a directed verdict. Rieger presented evidence from which reasonable minds could find in her favor.

{¶ 29} Thus, the first, third, and fourth assignments of error are overruled.

Punitive Damages Award

{¶ 30} In the second assignment of error, Giant Eagle argues the trial court erred by finding R.C. 2315.21 unconstitutional, as applied, and awarding Rieger $1,198,000, which is more than twice the statutory limit of the compensatory damages award. We agree.

{¶ 31} In Arbino v. Johnson & Johnson , 116 Ohio St.3d 468, 2007-Ohio-6948, 880 N.E.2d 420, the Ohio Supreme Court left open "as applied" challenges to the constitutionality of R.C. 2315.21.

{¶ 32} R.C. 2315.21(D) provides in relevant part:

(1) In a tort action, the trier of fact shall determine the liability of any defendant for punitive or exemplary damages and the amount of those damages.
(2) Except as provided in division (D)(6) of this section, all of the following apply regarding any award of punitive or exemplary damages in a tort action:
(a) The court shall not enter judgment for punitive or exemplary damages in excess of two times the amount of the compensatory damages awarded to the plaintiff from that defendant, as determined pursuant to division (B)(2) or (3) of this section.

(Emphasis added.)

{¶ 33} The Arbino Court noted that "[a] party raising an as-applied constitutional challenge must prove by clear and convincing evidence that the statute is unconstitutional when applied to an existing set of facts. Groch v. Gen. Motors Corp. , 117 Ohio St.3d 192, 2008-Ohio-546, 883 N.E.2d 377, ¶ 181." Simpkins v. Grace Brethren Church of Delaware , 149 Ohio St.3d 307, 2016-Ohio-8118, 75 N.E.3d 122, ¶ 22.

{¶ 34} In the instant case, Rieger argued that R.C. 2315.21 is unconstitutional, as applied, and the punitive damages of $1,198,000, as awarded by the jury, should not be reduced. The trial court agreed, finding R.C. 2315.21 unconstitutional as applied. The court stated that "the [j]ury's punitive damage award of $1,198,000.00 is within a constitutionally acceptable range and is not excessive; and, is within the confines of the legislative purpose of punitive damages which is to deter and punish."

{¶ 35} We note that the limits on the punitive damages set forth in R.C. 2315.21(D)(2) were based on guidance provided by the United States Supreme Court in State Farm Mut. Auto. Ins. Co. v. Campbell , 538 U.S. 408, 123 S.Ct. 1513, 155 L.Ed.2d 585 (2003). See Section 3(A)(4)(c) of the legislative history of R.C. 2315.21. In State Farm , the United States Supreme Court determined whether a $145,000,000 award of punitive damages was appropriate. In doing so, the Court referred to the three guideposts for punitive damages articulated in BMW of N.Am. v. Gore , 517 U.S. 559, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996) :

(1) the degree of reprehensibility of the defendant's misconduct; (2) the disparity between the actual or potential harm suffered by the plaintiff and the punitive damages award; and (3) the difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases.

State Farm at 418, 123 S.Ct. 1513, citing Gore. "According to the United States Supreme Court, 'few awards exceeding a single digit ratio between punitive damages and compensatory damages * * * will satisfy due process.' " Section 3(A)(4)(c) of Legislative history of R.C. 2315.21, quoting State Farm at 605-606, 123 S.Ct. 1513.

{¶ 36} In Barnes v. Univ. Hosps. of Cleveland , 119 Ohio St.3d 173, 2008-Ohio-3344, 893 N.E.2d 142, ¶ 40, the Ohio Supreme Court instructed lower courts to apply the Gore principles when reviewing punitive damage awards alleged to be unconstitutionally excessive. The Barnes Court stated:

The first guidepost, the degree of reprehensibility of the defendant's conduct, is "the most important indicium of the reasonableness of a punitive damages award." Id. A review of reprehensibility includes consideration of whether (1) "the harm caused was physical as opposed to economic," (2) "the tortious conduct evinced an indifference to or a reckless disregard of the health or safety of others," (3) "the target of the conduct had financial vulnerability," (4) "the conduct involved repeated actions or was an isolated incident," and (5) "the harm was the result of intentional malice, trickery, or deceit, or mere accident." State Farm , 538 U.S. at 419, 123 S.Ct. 1513, 155 L.Ed.2d 585.
* * *
The second guidepost and the "most commonly cited indicium of an unreasonable or excessive punitive damages award is its ratio to the actual harm inflicted on the plaintiff." Gore , 517 U.S. at 580, 116 S.Ct. 1589, 134 L.Ed.2d 809. But the United States Supreme Court, like this court, has consistently rejected the notion of a bright-line mathematical formula for assessing the reasonableness of punitive damage awards. The court recognized that "low awards of compensatory damages may properly support a higher ratio than high compensatory awards, if, for example, a particularly egregious act has resulted in only a small amount of economic damages." Id. at 582, 116 S.Ct. 1589, 134 L.Ed.2d 809. This court _has allowed a 6,250-to-one damages ratio to stand, but we have also invalidated a 20-to-one ratio. See Wightman v. Consol. Rail Corp. (1999), 86 Ohio St.3d 431, 1999-Ohio-119, 715 N.E.2d 546 ; Dardinger v. Anthem Blue Cross & Blue Shield , 98 Ohio St.3d 77, 2002-Ohio-7113, 781 N.E.2d 121 (invalidating the award under Ohio's Due Process Clause). The court in Gore referred to the 500-to-one ratio in that case as "breathtaking." 517 U.S. at 583, 116 S.Ct. 1589, 134 L.Ed.2d 809._
* * *
The third indicium of excessiveness set forth in Gore involves "[c]omparing the punitive damages award and the civil or criminal penalties that could be imposed for comparable misconduct." 517 U.S. at 583, 116 S.Ct. 1589, 134 L.Ed.2d 809. In announcing this guidepost, the court stated that a "reviewing _court engaged in determining whether an award of punitive damages is excessive should 'accord_ "substantial deference" to legislative judgment concerning appropriate sanctions for the conduct at issue.' " Id. at 575, 116 S.Ct. 1589, 134 L.Ed.2d 809, quoting Browning-Ferris Industries of Vermont, Inc. v. Kelco Disposal, Inc. (1989), 492 U.S. 257, 301, 109 S.Ct. 2909, 106 L.Ed.2d 219 (O'Connor, J., concurring in part and dissenting in part).

Id. at ¶ 33-34, 36.

{¶ 37} The Barnes Court cautioned that the Gore principles "must be implemented with care to ensure both reasonableness and proportionality" and that the court reviewing an award of punitive damages for excessiveness "must independently analyze" the Gore factors. Id. at ¶ 40, citing State Farm .

{¶ 38} We begin by reviewing the degree of reprehensibility of Giant Eagle's conduct. Here, Rieger was physically injured when a Giant Eagle motorized shopping cart driven by Kurka struck into her shopping cart. Rieger sustained physical injuries as a result of this accident. While Giant Eagle knew of the history of motorized cart accidents at its grocery stores, Giant Eagle does provide the benefit of the use of motorized shopping carts to its disabled customers, and Rieger did not make any reference as to what Giant Eagle could have done differently to prevent future incidents. Therefore, we do not find Rieger proved by clear and convincing evidence that Giant Eagle's conduct was so reprehensible that the application of the punitive damages cap to the instant case is unconstitutional.

{¶ 39} Having found that Rieger did not satisfy the first Gore factor, we need not address the remaining factors.

{¶ 40} We are mindful that there is no magic formula for determining the proper amount of punitive damages. Rather, the amount that should be awarded is the amount that best accomplishes

the twin aims of punishment and deterrence as to that defendant. We do not require, or invite, financial ruination of a defendant that is liable for punitive damages. While certainly a higher award will always yield a greater punishment and greater deterrent, the punitive damages award should not go beyond what is necessary to achieve its goals. The law requires an effective punishment, not a draconian one.

Dardinger , 2002-Ohio-7113, 98 Ohio St.3d 77, 781 N.E.2d 121, at ¶ 178.

{¶ 41} In light of the foregoing, we find that the $1,198,000 punitive damages award is unconstitutionally excessive. As a result, the punitive damages cap of R.C. 2315.21 is constitutional as applied to the instant case.

{¶ 42} Accordingly, the second assignment of error is sustained.

Prior Incidents Evidence

{¶ 43} In the fifth assignment of error, Giant Eagle argues the trial court erred by admitting the 179 incidents involving a motorized shopping cart at Giant Eagle stores. Giant Eagle contends the jury was tainted when the trial court admitted all 179 incidents "en masse" without any showing of substantial similarity to the accident in this case.

{¶ 44} Here, Giant Eagle objected to the introduction of all the 179 incident reports, renewing its arguments previously set out in its motion in limine. Giant Eagle also argued in the alternative that if the court chooses to admit the reports, the reports should be limited to the 117 prior incidents and the 62 post-2012 incidents should be excluded.

{¶ 45} We note that a "trial court has broad discretion in determining whether to admit or exclude evidence. Absent an abuse of discretion that materially prejudices a party, the trial court's decision will stand." Krischbaum v. Dillon , 58 Ohio St.3d 58, 66, 567 N.E.2d 1291 (1991), citing State v. Withers , 44 Ohio St.2d 53, 337 N.E.2d 780 (1975), citing State v. Hymore , 9 Ohio St.2d 122, 224 N.E.2d 126 (1967). To constitute a reversible abuse of discretion, the trial court's ruling "must be so palpably and grossly violative of fact or logic that it evidences not the exercise of will but the perversity of will, not the exercise of judgment but the defiance of judgment, not the exercise of reason but instead passion or bias." Nakoff v. Fairview Gen. Hosp. , 75 Ohio St.3d 254, 256, 662 N.E.2d 1 (1996), citing State v. Jenkins , 15 Ohio St.3d 164, 222, 473 N.E.2d 264 (1984).

{¶ 46} Relevant evidence is defined in Evid.R. 401 as "[e]vidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Relevant evidence "may be excluded if its probative value is substantially outweighed by considerations of undue delay, or needless presentation of cumulative evidence." Evid.R. 403(B).

{¶ 47} Rieger's negligence theory at trial was that Giant Eagle was liable for the injuries she sustained while shopping, when Kurka, who was driving the Giant Eagle motorized cart, ran into Rieger's shopping cart and pushed Rieger onto the floor. Rieger theorized that the existence of a duty owed by Giant Eagle is linked to Giant Eagle's foreseeability of the injury. The existence of 117 prior incidents involving incidents where a Giant Eagle customer was struck by a motorized cart at a Giant Eagle store demonstrates Giant Eagle's knowledge of these types of incidents.

{¶ 48} The standard utilized to determine the admissibility of prior incidents was enunciated by the Ohio Supreme Court in Renfro v. Black , 52 Ohio St.3d 27, 556 N.E.2d 150 (1990), where the court stated:

The law in the area of admissibility of "prior accidents" or occurrence evidence was succinctly stated in McKinnon v. Skil Corp. (C.A.1, 1981), 638 F.2d 270. There, the court considered admissibility of prior accident evidence in a products liability action concerning an alleged defective Skil saw. The plaintiff attempted to introduce answers to interrogatories regarding prior personal injury accidents involving the Skil saw. The answers did not indicate how the injuries occurred or whether they resulted from defective lower blade guards. Plaintiff contended that the interrogatory answers were admissible on Skil's knowledge of prior accidents relevant to the duty to warn, to establish evidence of the existence of defect, causation, and negligent design, and to attack the credibility of the defendant's expert witness. The court held that "[evidence] of prior accidents is admissible on the first four issues only if the proponent of the evidence shows that the accidents occurred under circumstances substantially similar to those at issue in the case at bar. * * *" Id. at 277.

(Internal citations omitted.) Id. at 31, 556 N.E.2d 150.

{¶ 49} In reviewing the record, we find no abuse by the trial court in admitting evidence regarding the prior 117 incidents. The 117 prior incident reports all document similar accidents that occurred to a Giant Eagle customer who was injured after being struck by a Giant Eagle motorized cart while shopping. We find, however, that the admission of the 62 post-2012 incidents was harmless error that did not materially prejudice Giant Eagle.

{¶ 50} At trial, the deposition testimony of a Giant Eagle corporate representative was presented to the jury without objection by Giant Eagle. In his testimony, the corporate representative testified about the 179 electronic files related to incidents involving motorized carts at Giant Eagle grocery stores. Other than this testimony, Rieger did not reference the 179 total motorized cart incidents. Her argument referenced the 117 incidents involving motorized carts that occurred prior to Rieger's December 2012 accident. Whereas, Giant Eagle discussed the 179 motorized cart incidents during its closing argument. As a result, we find the admission of the post-2012 incidents harmless.

{¶ 51} Therefore, the fifth assignment of error is overruled.

{¶ 52} Accordingly, judgment is affirmed in part, modified in part, and remanded. The compensatory damages award is affirmed, the $1,198,000 punitive damages award is modified, and the matter is remand for the trial court to enter an order setting the total amount of punitive damages awarded to $242,000.

FRANK D. CELEBREZZE, JR., J., and LARRY A. JONES, SR., J., CONCUR

      A review of the record reflects the parties stipulated that Rieger was an invitee of Giant Eagle.


source: Caselaw Access Project

license: Public Domain

text:
    The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Jerry H. BUNNING, Defendant-Appellant.
    NO. 5-15-0114
    Appellate Court of Illinois, Fifth District.
    May 17, 2018
    Michael J. Pelletier, Ellen J. Curry, and Elizabeth M. Crotty, of State Appellate Defender's Office, of Mt. Vernon, for appellant.
    Michael M. Havera, State's Attorney, of Taylorville (Patrick Delfino, David J. Robinson, and Erin Wilson Laegeler, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
   JUSTICE GOLDENHERSH delivered the judgment of the court, with opinion.

¶ 1 After a jury trial in the circuit court of Christian County, defendant, Jerry H. Bunning, was convicted of aggravated criminal sexual abuse ( 720 ILCS 5/11-1.60(c)(1)(i) (West 2012) ) and was sentenced to five years in the Department of Corrections to be followed by two years of mandatory supervised release. Defendant appeals the denial of his motion to reconsider his sentence. The issue raised in this direct appeal is whether the trial court erred by considering in aggravation the psychological harm or threat thereof suffered by the minor victim in sentencing defendant. We affirm.

¶ 2 FACTS

¶ 3 Defendant was charged by information with a single count of aggravated criminal sexual abuse for having the victim, M.B., who was under 13 years of age, "touch his penis over his clothing." Id. M.B. is defendant's step-granddaughter. At trial, M.B., age nine, testified that approximately two years earlier defendant showed her pornography on a computer and made her touch him on "his bad spot" over his clothes. She pointed to the bad spot on a diagram. M.B. said it happened in the computer room at her grandparents' house. M.B. estimated that it happened approximately four times, usually at night while her grandmother was asleep.

¶ 4 After hearing all the evidence, the jury found defendant guilty. The trial court ordered a sex offender evaluation and presentence investigation (PSI) prior to sentencing. The sex offender evaluation showed that defendant is at a low risk for recidivism. The evaluator recommended defendant undergo "[s]ex offender-specific treatment utilizing group-centered, cognitive-behavioral techniques as recommended by the Illinois Sex Offender Management Board" and "[s]ex offender-specific guidelines/requirements and specialized monitoring if [defendant] is at some point placed/released under community supervision via probation or parole."

¶ 5 The presentence investigation showed defendant has one 1977 conviction for disorderly conduct. It also showed that defendant was gainfully employed as a truck driver by the same employer for 18 years. With regard to a proposed plan of supervision, the report concluded:

"Due to the severity of the current offense and the defendant's failure to take full responsibility for the offense, it appears the defendant lacks empathy for others. In addition, the defendant lacks involvement in an organized group or activity. If the court were to sentence the defendant to a term of probation, the targeted interventions and supervision strategies listed above as well as maximum level of supervision, would be priorities in a supervision case plan."

A revised level of service inventory suggested that defendant receive a "medium level of supervision/service" and placed defendant's probability of recidivism at 23%.

¶ 6 M.B.'s mother submitted a victim impact statement in which she set forth the ways in which she, M.B., and her family had been impacted by defendant's abuse of M.B. In her letter, she discussed how, over the course of the previous two years, her family members' lives have "been turned upside down." She explained how the family has "had to rearrange our lives to keep all of the counseling appointments, court dates, and advocate meetings." She said she and her husband missed more than 30 days of work because of such appointments, causing them to lose money because neither has a job that gives them paid time off for such matters. She also noted that the victim "has had to miss many days of school and some fun activities with her friends." She believes M.B. "is not the same girl she used to be" and defendant "took her childhood away."

¶ 7 A sentencing hearing was conducted on July 31, 2014. The State did not offer any additional evidence in aggravation. The defense called defendant's wife and defendant to testify. Both testified about the hardships it would cause their family if defendant were incarcerated.

¶ 8 In sentencing defendant, the trial court said it considered the PSI; the history, character, and attitude of the defendant; and the evidence and arguments that were presented by the parties. The court noted mitigating factors, including no prior history of delinquency, albeit one conviction years earlier, the sex offender report which indicated a low risk of recidivism, and the excessive hardship on defendant's dependents which would be caused by defendant's incarceration. The trial court also pointed out that even though defendant indicated in the PSI and in court that he was willing to comply with sex offender treatment, such treatment is not usually successful unless a defendant is willing to admit guilt.

¶ 9 As to factors in aggravation, the trial court noted that one of the factors to be considered is whether the offense caused or threatened serious harm. The court noted that this does not mean only physical harm, specifically stating as follows:

"[I]n cases like this, physical harm is often not the issue. The issue is, emotional psychological harm that may, obviously has occurred at least in some respects because the child has apparently been in treatment for some time. I think the evidence I heard in this case in a pretrial hearing was that she was. I think that is one of the first things that was done even before the police were involved is that the mother took her to some type of counseling. Uh, and unfortunately for us, we're not going to know the nature and extent of the harm caused by this act, these acts probably for quite some time. There is a real danger that [M.B.] is going to have a lot of issues in the future dealing with trust, dealing with relationships with other men, whether it is, you know, paramours or otherwise. Uh, it is just part of what happens in these kinds of unfortunate situations."

The trial court further found in aggravation that defendant held a position of supervision and trust with regard to M.B. by virtue of the fact that he was the only grandfather she ever knew.

¶ 10 The trial court pointed out that the abuse happened more than once and was well orchestrated by defendant in that defendant waited until his wife was asleep before abusing M.B. The trial court also pointed out that even though defendant denied committing any acts of abuse, he was caught in repeated lies about the incidents:

"And what I have seen in the past with sexual offenders is what I have seen with [defendant]. And that is, it starts out like this. This is what happened in this case. They find, they accuse him of having pornography on the computer. He says, no, I don't; no, I didn't, I didn't have. He didn't know anything about computers. His wife found the porn on the computer relatively quickly. I don't know how it got there. I didn't put it there. Lie number two. Uh, well we don't believe that. There has got to be a way that that got there. Well, maybe I accidentally got it there. And then it was, okay, fine; and then give up just a little bit more every time, but falling short of actually coming clean and admitting what he did. Then he would say, well, okay, yeah, I was watching pornography and I didn't know [M.B.] was there. When I found out that she was there, I told her that this is what adults do, it wasn't appropriate for her, and I shut it down. Uh, of course, we don't want to tell anybody though, which is another hallmark of sexual-We can't tell anybody because, I think the words were, grandma would kill me. And then it is, well, the accusation is that she touched your penis. Well, that didn't happen. Well, wait, let me think about that. Well, there was this time that I got out of the shower, and she came running into the bathroom and smacked me in the penis; and I told her, you know, that is not appropriate, don't do that. But again, I won't tell, if you won't tell. Concealment. So it is just give you just enough each time, but the lies just compound and compound. And so if you are asking what differentiates a probationable case from a nonprobationable case, I think these facts and circumstances certainly do."

The trial court went on to state that probation would not only "deprecate the seriousness of this particular crime" but also "would be inconsistent with the ends of justice." The trial court then sentenced defendant to five years in prison to be followed by two years of mandatory supervised release.

¶ 11 Defendant filed a pro se motion to reduce sentence, arguing that the State failed to present any evidence of physical or emotional harm to M.B. Appointed counsel later filed an amended petition to reduce sentence in which he incorporated the allegations in defendant's pro se motion "by reference" and added some additional arguments. The motion to reduce sentence alleged that the trial court failed to give proper weight to the factors in mitigation, failed to give appropriate weight to defendant's sex offender evaluation, and gave improper weight to the seriousness of harm to the victim when there was "no indication in the record from counselors or otherwise that there was serious harm done to the victim."

¶ 12 After a hearing, the trial court denied the motion to reduce sentence. The trial court said it considered both the factors in aggravation and in mitigation in sentencing defendant and noted that one of the factors it considered in aggravation was whether there was actual or threatened serious harm. The trial court found that any time a child is sexually abused by someone that is close to them, "there is a possibility that could threaten serious harm." The trial court believed there was harm to M.B. "because she was in treatment for it. There was no question about that." The trial court also pointed to the factors in aggravation in this case, which include (1) defendant's position of trust relative to the victim, (2) lack of remorse on the part of defendant, and (3) multiplicity of incidents of abuse. The trial judge said nothing new had been presented that would cause him to change his mind and reduce defendant's sentence. Defendant now appeals.

¶ 13 ANALYSIS

¶ 14 The issue raised in this appeal is whether the trial court erred by considering in aggravation the psychological harm or threat thereof suffered by M.B. in sentencing defendant. Defendant argues that the trial court improperly considered in aggravation that defendant's conduct caused or threatened serious psychological harm because the record fails to show either evidence of actual harm caused or circumstances that would be expected to cause harm beyond that inherent in the charge of aggravated criminal sexual abuse. The State replies that the trial court did not rely on an improper sentencing factor because the record sufficiently demonstrates that M.B. suffered psychological harm or, at the very least, the threat thereof, as a result of defendant's abuse. We agree with the State.

¶ 15 We are aware of the general rule that a factor inherent in the offense for which a defendant has been convicted cannot also be used as an aggravating factor in determining his sentence. People v. Phelps , 211 Ill. 2d 1, 11, 284 Ill.Dec. 268, 809 N.E.2d 1214 (2004). The rationale for this prohibition against "double enhancement" is premised on the assumption that our General Assembly considered the factors inherent in the offense in designating the range of punishment. Id. at 12, 284 Ill.Dec. 268, 809 N.E.2d 1214. However, the rule that a court may not consider a factor inherent in the offense should not be applied rigidly because sound public policy demands that a sentence be varied according to the circumstances of the offense. People v. Spicer , 379 Ill. App. 3d 441, 468, 318 Ill.Dec. 707, 884 N.E.2d 675 (2007). In determining whether the trial court based its sentence on proper aggravating and mitigating factors, a reviewing court should consider the record as a whole rather than focusing on a few words or statements by the trial court. People v. Dowding , 388 Ill. App. 3d 936, 943, 328 Ill.Dec. 512, 904 N.E.2d 1022 (2009).

¶ 16 If a sentence falls within the statutory limits, it will not be overturned on appeal absent an abuse of discretion. People v. Perruquet , 68 Ill. 2d 149, 153, 11 Ill.Dec. 274, 368 N.E.2d 882 (1977) ; People v. Stroup , 397 Ill. App. 3d 271, 274, 337 Ill.Dec. 80, 921 N.E.2d 1218 (2010). An abuse of discretion occurs only if a sentence greatly varies from the spirit and purpose of the law or where it is manifestly disproportionate to the nature of the offense. People v. Stacey , 193 Ill. 2d 203, 210, 250 Ill.Dec. 4, 737 N.E.2d 626 (2000). A trial court is granted deference because it is generally in a superior position to weigh such factors as defendant's credibility, demeanor, general moral character, mentality, social environment, habits, and age. People v. Streit , 142 Ill. 2d 13, 19, 153 Ill.Dec. 245, 566 N.E.2d 1351 (1991).

¶ 17 We first note that defendant's conviction for aggravated criminal sexual abuse is a Class 2 felony. See 720 ILCS 5/11-1.60(g) (West 2012). A Class 2 felony carries a statutory limit of not less than three years and not more than seven years. See 730 ILCS 5/5-4.5-35(a) (West 2012). Consequently, the sentence imposed upon defendant by the trial court was within the statutory limits.

¶ 18 Contrary to defendant's argument, many cases have held that the psychological harm inflicted upon a child victim of a sex crime is a proper factor to consider in aggravation. For example, in People v. Kerwin , 241 Ill. App. 3d 632, 636, 182 Ill.Dec. 757, 610 N.E.2d 181 (1993), this court rejected the defendant's argument that harm is inherent in the offense of aggravated criminal sexual assault and found it proper that the trial court considered the emotional harm to the nine-year-old victim as an aggravating factor. In People v. Fisher , 135 Ill. App. 3d 502, 506, 90 Ill.Dec. 322, 481 N.E.2d 1233 (1985), our colleagues in the Third District specifically stated, "Proof of medically diagnosed psychological harm is unnecessary." In that case, the defendant, who was charged with inter alia two counts of indecent liberties with a child, argued that psychological harm could not be considered where it was not proven. The court rejected that argument, finding that the defendant's acts "created a strong probability of permanent psychological harm" and was therefore properly considered. Id.

¶ 19 In People v. Huddleston , 212 Ill. 2d 107, 134, 287 Ill.Dec. 560, 816 N.E.2d 322 (2004), our supreme court reviewed "[t]he vulnerability of children to sexual predation" and "the psychological damage that results to the developing psyches of these young victims." The court found that long-term follow-up studies of child sexual abuse victims show the sexual abuse is "grossly intrusive" in their lives "and is harmful to their normal psychological, emotional and sexual development." (Internal quotation marks omitted.) Id. at 135, 287 Ill.Dec. 560, 816 N.E.2d 322 (quoting Yale Glazer, Child Rapists Beware! The Death Penalty and Louisiana's Amended Aggravated Rape Statute , 25 Am. J. Crim. L. 79, 87 (1997), quoting Christopher Bagley & Kathleen King, Child Sexual Abuse: The Search for Healing 2 (1990) ).

¶ 20 Nevertheless, defendant contends that without specific evidence to show that a child victim suffered psychological harm, any psychological harm must be limited to that implicit in the offense itself. In support of its argument, defendant relies on People v. Calva , 256 Ill. App. 3d 865, 195 Ill.Dec. 392, 628 N.E.2d 856 (1993). In Calva , the defendant pled guilty to six counts of aggravated criminal sexual assault committed against A.G., a six-year-old girl. Id. at 867, 195 Ill.Dec. 392, 628 N.E.2d 856. At sentencing, the trial court told the defendant his actions "psychologically injured and scarred A.G. for life." Id. at 869, 195 Ill.Dec. 392, 628 N.E.2d 856. On appeal, the court found it was improper for the trial court to consider any psychological harm to A.G. because "no evidence was offered to show any psychological harm to A.G." Id. at 875, 195 Ill.Dec. 392, 628 N.E.2d 856.

¶ 21 Calva is distinguishable from the instant case for at least three reasons. First, in Calva the defendant pled guilty, whereas this case went to trial. The trial court was able to observe M.B. firsthand as she testified. M.B. specifically testified that she was abused by defendant on four different occasions. Second, unlike Calva , the trial court set forth, both at sentencing and in denying defendant's motion to reconsider sentence, that there was evidence of M.B. having been "in treatment." Third, M.B.'s mother submitted a victim impact statement in which she outlined the upheaval caused by defendant's abuse and specifically referred to "counseling appointments." She noted that "[e]ven with the tools the counselors" have given M.B., she is still concerned M.B. will be a victim again. She concluded that M.B. "is not the same girl she used to be."

¶ 22 After careful consideration, we find the record before us supports a finding of psychological harm to M.B. or at least a reasonable inference that M.B. suffered psychological harm. Therefore, the trial court did not err in considering psychological harm as an aggravating factor. The record also shows that the trial court properly considered the factors in aggravation and mitigation.

¶ 23 In addition to psychological harm to M.B., the trial court found other factors in aggravation. The trial court specifically found in aggravation: (1) the position of supervision and trust defendant held over M.B., (2) the fact the abuse happened more than once, (3) defendant's concealment of the abuse, and (4) defendant's refusal to take full responsibility for the repeated acts of abuse. And, as previously set forth, the trial court's sentence falls within the statutory limits prescribed by the legislature. Under these circumstances, we cannot say the trial court erred in sentencing defendant.

¶ 24 CONCLUSION

¶ 25 For the foregoing reasons, we affirm the judgment of the circuit court of Christian County.

¶ 26 Affirmed.

Justices Moore and Overstreet concurred in the judgment and opinion.


text:
    BOARD OF MANAGERS OF NORTHBROOK COUNTRY CONDOMINIUM ASSOCIATION, Plaintiff-Appellee, v. June SPIEZER, as Trustee of the June Spiezer Revocable Trust Dated 12/16/99, and Unknown Occupants, Defendants
    (Joseph Spiezer, Intervenor-Appellant).
    No. 1-17-0868
    Appellate Court of Illinois, First District, Second Division.
    Opinion filed February 20, 2018 Supplemental Opinion Filed April 10, 2018
    K.O. Johnson, of Sycamore, for intervenor-appellant.
    Sandra T. Kahn and James A. Slowikowski, of Dickler, Kahn, Slowikowski & Zavell, Ltd., of Arlington Heights, for appellee.
   JUSTICE HYMAN delivered the judgment of the court, with opinion.

¶ 1 The Board of Managers of the Northbrook Country Condominium Association sued June Spiezer, trustee of the June Spiezer Revocable Trust, to recover common expenses owed on her condominium unit. After the trial court entered a default judgment and order of possession, her son, Joseph Spiezer, moved that the default judgment and order of possession be vacated, which the trial court granted. Joseph then moved to quash service, which the trial court denied, finding Joseph submitted to the court's jurisdiction by filing the motion to vacate. The trial court entered another order of possession in favor of the Board.

¶ 2 Joseph timely appealed the order of possession, but the appeal was dismissed for want of prosecution. Board of Managers of Northbrook Country Condominium Ass'n v. Spiezer , No. 1-13-0573 (Aug. 28, 2013) (unpublished summary order under Illinois Supreme Court Rule 23(c) ). Almost three years later, Joseph filed a motion in the trial court to vacate the order of possession and for an accounting and judgment in his favor. The trial court found it no longer had jurisdiction and dismissed his motion, as well as a motion to reconsider.

¶ 3 Joseph appeals arguing (i) the trial court had jurisdiction to rule on his motions and (ii) the order of possession was void and the complaint should be dismissed. Having let his appeal on these issues lapse, Joseph cannot exhume his case by motion, and we must dismiss.

¶ 4 Further, in his brief, Joseph's attorney, K.O. Johnson, disparages opposing counsel and makes a number of statements that call into question the trial and appellate court's integrity. Because of the acerbity of his statements and his past behavior (a panel of this court previously warned Johnson regarding improper conduct), we order that he show cause within 30 days why sanctions should not be imposed under Illinois Supreme Court Rule 375 (eff. Feb. 1, 1994).

¶ 5 Background

¶ 6 On August 31, 2012, the Board of the Northbrook Country Condominium Association filed a forcible entry and detainer complaint against June Spiezer, as trustee of the June Spiezer Revocable Trust and unknown occupants, seeking possession and common expenses. June died some nine months earlier, and, in addition to serving the summons and complaint on unknown occupants, the Board served Joseph Spiezer, June's son. After the trial court entered a default order of possession in the Board's favor, Joseph successfully moved to vacate the order of possession. Joseph also moved to quash service, but the trial court denied the motion, finding that by filing the motion to vacate, he submitted to the court's jurisdiction.

¶ 7 On January 4, 2013, Joseph, as trustee of June Spiezer Trust, quitclaimed the condominium unit to himself. On January 16, 2013, the trial court once again entered an order of possession in the Board's favor. Joseph filed a timely notice of appeal, which the appellate court dismissed for want of prosecution. Spiezer , No. 1-13-0573.

¶ 8 Nearly three years later, on May 20, 2016, Joseph filed a petition to vacate the January 16, 2013, order of possession under section 2-1401(f) of the Code of Civil Procedure ( 735 ILCS 5/2-1401(f) (West 2014) ), arguing the order of possession was void because June was deceased when the complaint was filed and her beneficiaries were not named as a party. Joseph voluntarily withdrew the section 2-1401 petition on June 21, 2016. On August 2, 2016, Joseph filed a motion to intervene in the forcible entry and detainer case, rearguing that June predeceased the filing of the case and her beneficiaries had not been properly served with a summons and complaint. Joseph asserted he should be allowed to intervene to vacate the January 16, 2013, judgment, to present a motion for an accounting, and to obtain judgment in his favor for rental income the Board received on the property after entry of the order of possession.

¶ 9 By agreed order, the trial court continued the motion several times while the parties engaged in settlement talks. On November 10, 2016, Joseph's attorney withdrew and his new attorney filed an appearance. The trial court continued the case to allow both parties to respond to Joseph's motion to intervene. On November 16, 2016, Joseph's new attorney filed another motion, seeking an accounting and asking the trial court to vacate the January 16, 2013, judgment and enter judgment in Joseph's favor. After the Board responded, the trial court entered an order on December 23, 2016, dismissing Joseph's motions for lack of jurisdiction finding that the "revestment doctrine," as explained in People v. Bailey , 2014 IL 115459, 378 Ill.Dec. 591, 4 N.E.3d 474, did not permit the court to exercise jurisdiction. Joseph filed a motion to reconsider, which the trial court denied on March 9, 2017. On April 5, 2017, Joseph filed a notice of appeal from the December 23, 2016, order dismissing his motions and the March 9, 2017, order denying his motion to reconsider.

¶ 10 Analysis

¶ 11 In his initial brief, Joseph asserts this court has jurisdiction under Illinois Supreme Court Rule 306 (eff. Jan. 1, 2016) and Rule 303 (eff. Jan. 1, 2015). In his reply, however, Joseph abandons his argument that Rule 306 provides a basis for appellate jurisdiction, and relies solely on Rule 303. Because Rule 303 precludes us from exercising jurisdiction, we must dismiss this appeal.

¶ 12 Rule 303(a)(1) states that "The notice of appeal must be filed with the clerk of the circuit court within 30 days after the entry of the final judgment appealed from, or, if a timely posttrial motion directed against the judgment is filed, whether in a jury or a nonjury case, within 30 days after the entry of the order disposing of the last pending postjudgment motion directed against that judgment or order * * *." Ill. S. Ct. R. 303(a)(1) (eff. Jan. 1, 2015).

¶ 13 Joseph argues that the trial court had jurisdiction to address the merits of his motion to vacate the January 16, 2013, order of possession because "a void order may be attacked at any time or in any court, either directly or collaterally." Joseph asserts the order of possession was void because the Board failed to properly serve the trust, trustees, or beneficiaries. But in 2012, the trial court denied Joseph's motion to quash service, finding that he submitted to the court's jurisdiction by filing the motion to vacate its first order of possession. The trial court entered a second order of possession, and Joseph timely appealed. This court then dismissed the appeal for want of prosecution. Spiezer , No. 1-13-0573.

¶ 14 Some three years later, Joseph sought to make an end-run around his long abandoned appeal by filing a motion in the trial court to vacate the order of possession. His motion, however, does not create a right to appeal under Rule 303 nor does he provide us with any other rule that permits him to relitigate issues already decided in 2013 and already timely appealed, albeit dismissed for want of prosecution. Cf. In re K.A. , 335 Ill. App. 3d 1095, 270 Ill.Dec. 378, 782 N.E.2d 937 (2003) (holding that where appeal is dismissed, party may not file section 2-1401 in trial court to circumvent the requirements of Rule 303 ); see also In re Estate of Kunsch , 342 Ill. App. 3d 552, 553, 276 Ill.Dec. 809, 794 N.E.2d 1059 (2003) (dismissing appeal of disinherited son who sought to have will declared void after he failed to file a timely posttrial motion directed against the judgment).

¶ 15 In some limited circumstances, a court may be "revested" with jurisdiction. For the revestment doctrine to apply both parties must (1) actively participate in the proceedings, (2) fail to object to the untimeliness of the late filing, and (3) assert positions that make the proceedings inconsistent with the merits of the prior judgment and support the setting aside of at least part of that judgment. Bailey , 2014 IL 115459, ¶ 25, 378 Ill.Dec. 591, 4 N.E.3d 474 (citing People v. Kaeding , 98 Ill. 2d 237, 241, 74 Ill.Dec. 509, 456 N.E.2d 11 (1983) ). When, as here, those requirements are not met, the court has no authority to address issues raised in an untimely motion.

¶ 16 We do not have jurisdiction and must dismiss.

¶ 17 Rule to Show Cause

¶ 18 Throughout his opening and reply briefs, Joseph's attorney, K.O. Johnson, makes a series of remarks to disparage the performance of opposing counsel, calling her arguments "incoherent," "bizarre," "nauseating," "nonsensical," and a "word salad." His remarks serve no purpose other than to demean or insult the other side. We expect all attorneys to behave with respect and civility in their written as well as oral interactions with opposing counsel and with the court.

¶ 19 Johnson then aims a few poisonous darts at this court. For instance, he suggests that a panel of this court intentionally withheld a Rule 23 order entered in a related case ( Citibank, N.A. v. Unknown Heirs & Devisees of Spiezer , 2017 IL App (1st) 161291-U, 2017 WL 1238427 ) by failing to mail him a copy and that his representation of his client was hindered as a result. Johnson should know that the appellate court clerk notifies attorneys when issuing a Rule 23 order but does not mail a copy to the attorneys. Instead of making reckless remarks about the court, it was incumbent on Johnson to follow the progress of his client's case.

¶ 20 Johnson does not stop there. He goes further and condemns the entire appellate court's integrity, suggesting that "the chance that this case will be decided on the up [and up] is a stretch given the history of these cases but this party generally attributes to ignorance that which can also be attributed to malice." He further alleges, the Board "can literally say anything and prevail in this court." Johnson closes his opening brief with a derisive slap at both the trial court and this court by asserting that when the judiciary "is too lazy, too stupid or too corrupt to administer justice, the foundations of democracy come apart." Johnson attempts to justify these ad hominem attacks on his client's failure to prevail in the trial court or in either the trial or appellate court in the related case. Inflammatory and intemperate statements like Johnson's are highly improper, offensive, and have no place in legal briefs. We justices are thick-skinned; nevertheless, we are tasked to uphold the public's trust and confidence in the legal system, especially on those rare occasions when a member of the bar intentionally and unnecessarily seeks to undermine that confidence.

¶ 21 We note that this is not Johnson's first warning regarding inappropriate conduct before this court. In a 2011 case, In re Marriage of Myers , No. 2-10-1091, 2011 WL 10457438 (Mar. 21, 2011) (unpublished order under Illinois Supreme Court Rule 23 ), the appellate court noted Johnson's "utter disregard * * * for appellate procedure" and described his multiple failures to meet deadlines "appalling and inexcusable." The court admonished Johnson that similar conduct would not be tolerated.

¶ 22 Johnson's statements flout the norms of proper discourse before the appellate court. Thus, we order that Johnson show cause within 30 days why sanctions should not be imposed under Illinois Supreme Court Rule 375 (eff. Feb. 1, 1994) (reviewing court may impose a sanction on party or attorney for party on reviewing court's own initiative where court deems it appropriate; if reviewing court initiates the sanction, it shall require the party or attorney, or both, to show cause why a sanction should not be imposed before imposing the sanction).

¶ 23 Appeal dismissed; order to show cause entered.

¶ 24 SUPPLEMENT TO OPINION

¶ 25 This court granted defendant's attorney, KO Johnson, 30 days to show cause why we should not impose sanctions on him under Illinois Supreme Court Rule 375 (eff. Feb. 1, 1994), for his unprofessional conduct before this court. As noted in the opinion, Johnson's briefs make numerous disparaging remarks about opposing counsel and questioned the integrity of the trial court and the competency and integrity of the appellate court. Id. , ¶¶ 18-20. Johnson had been warned about inappropriate conduct. In re Marriage of Myers , No. 2-10-1091, 2011 WL 10457438 (Mar. 21, 2011) (unpublished order under Illinois Supreme Court Rule 23 ) (showed "utter disregard * * * for appellate procedure," including deadlines).

¶ 26 We are not dealing with a self-represented litigant here, but a licensed and experienced attorney who should know what constitutes the limits of proper argument. The statements addressed in the show cause order are not argument, but accusations and wild and unsubstantiated accusations at that. To let them pass without admonishment would be perceived as condoning Johnson's accusations, and serve to undermine the judiciary's legitimacy, authority, and persuasiveness in the minds of the public and his client. In the words of U.S. Supreme Court Chief Justice Warren Burger, "[L]awyers who know how to think but have not learned how to behave are a menace and a liability, not an asset, to the administration of justice." Warren E. Burger, The Necessity For Civility , 52 F.R.D. 211, 215 (1971).

¶ 27 More than 30 days has elapsed and we have not heard from Johnson. His client, however, filed a motion to intervene and asked for leave to file a pro se petition for rehearing as Johnson has failed to respond to his request. Having waived his right to respond, by operation of law, we enter sanctions against Johnson. We order that K O Johnson: (i) pay a fine of $750 to the Clerk of the First Appellate District by May 11, 2018, and (ii) attend a minimum of six hours of civility and professionalism courses by September 30, 2018, which have been approved by the Illinois Supreme Court Commission on Professionalism (www.2civility.org/programs/cle/) or the Minimum Continuing Legal Education Board of the Supreme Court of Illinois (www.mcleboard.org), and file with this court by October 10, 2018, a verification listing for each course, its name, provider, number of hours, and date taken.

¶ 28 A copy of this opinion shall be sent to the Attorney Registration and Disciplinary Commission by the clerk of court.

Presiding Justice Neville and Justice Pucinski concurred in the judgment and opinion.