LeFortv.Century 21-Maitland Realty Co.

Supreme Court of OhioAug 19, 1987
32 Ohio St. 3d 121 (Ohio 1987)
32 Ohio St. 3d 121512 N.E.2d 640

No. 86-959

Decided August 19, 1987.

Civil procedure — Failure to discharge alternate juror at time jury retires for deliberations — Substitution for incapacitated regular juror after deliberations begin — Violation of Civ. R. 47(C) does not require reversal, when.

O.Jur 3d Jury §§ 183, 189.

Where a juror is incapacitated and replaced during the course of jury deliberations, a violation of Civ. R. 47(C) does not require reversal, where counsel knows of the substitution, raises no objections thereto, and participates in the rule-violating procedures.

APPEAL and CROSS-APPEAL from the Court of Appeals for Cuyahoga County.

Appellants, Century 21-Maitland Realty Co. ("Maitland"), Century 21-Active Realty Co. ("Active"), Cardinal Federal Savings Loan Assn. ("Cardinal"), and Nationwide Mutual Insurance Co. ("Nationwide"), challenge the court of appeals' reversal of jury verdicts in their favor on the fraudulent misrepresentation claims of appellees. We reverse the court of appeals and reinstate the judgment of the trial court.

In March 1979, Anna and David LeFort purchased a home at 3229 West 52 Street in Cleveland, Ohio. The LeForts received title to the home on April 30, 1979. Cardinal, Maitland, and Active informed the LeForts they would need to purchase fire insurance for the home. In June 1979, a State Farm Insurance Co. agent inspected the home but refused to insure it because of electrical defects. Anna then spoke to a Maitland agent, Carol Sadowski, who informed her that Nationwide would insure the home. In June 1979, Nationwide did issue a fire insurance policy on the property.

The LeForts moved into their home in June 1979. Shortly after moving in, Anna noticed that when she plugged a lamp or a vacuum cleaner into wall sockets in the living room or dining room, sparking would result. On September 5, 1979, at 3:15 a.m., sparks from the living room wall socket started a fire in the home. Anna's two children, Shawn and Sherry, ages six and eight respectively, died as a result of the fire. David was seriously injured.

On September 4, 1981, Anna and David, individually and in Anna's capacity as administratrix of the estates of her two children, filed suit against, inter alia, Maitland, Active, Cardinal, and Nationwide. Specifically, the LeForts alleged in their complaint that Maitland, Active, and Cardinal had procured fire insurance from Nationwide and, upon obtaining such insurance, induced the LeForts to purchase the home upon the representation that the home was free from any and all electrical defects. The complaint further alleged essentially that Nationwide had conspired with the other defendants to defraud the LeForts. The various defendants denied the allegations of the complaint and alleged that the LeForts were negligent and that their negligence had proximately caused their injuries.

A jury trial on the LeForts'complaint commenced on Tuesday, January 22, 1985. The jury consisted of eight jurors and two alternates. Following the presentation of plaintiffs' case, Nationwide's motion for a directed verdict was denied. At the close of the trial on Friday, February 8, 1985, the trial court charged the jury and instructed them to answer the fifty-three interrogatories before completing the four general verdicts. The court, then, instructed the two alternate jurors that they would not be excused until the jury reached a verdict. The court cautioned the two alternates to remain available should a substitution be necessary. Counsel entered no objections to this instruction. The jury then retired at about 4:00 p.m. on Friday evening and deliberated until 8:15 p.m. During this time the jury answered seven of the eight interrogatories relating to David's claims against the four defendants.

On Monday morning, February 11, 1985, the trial court substituted alternate juror, Robert Wilber, for juror number two, Janine Boehm, who had broken her back in an automobile accident over the weekend. The jury, with Wilber as a member, continued to deliberate on the remaining interrogatories and general verdicts until about 1:00 p.m., Monday afternoon, at which time they returned to the courtroom. All counsel were aware of the substitution before the jury had reached a verdict. None objected.

The court then proceeded to read each of thirty-seven interrogatories to which the jury had responded. Boehm's name appeared on the answers to seven interrogatories while Wilber's name appeared on the remaining thirty as well as the four general verdicts in favor of Maitland, Active, Cardinal, and Nationwide. The court then inquired of the parties as to any reason why they should not accept the jury's answers to the interrogatories or the general verdicts. The LeForts entered no objections but asked the court to poll the jury as to the general verdicts. The court specifically asked whether they desired to poll the jury on its answers to the interrogatories. The LeForts declined. At the conclusion of the poll, the court again asked for objections. After the parties entered no objection, the court discharged the jury. The trial court subsequently denied the LeForts' motion for a new trial.

Upon appeal, the LeForts argued, inter alia, that the trial court erred in substituting the alternate juror for the incapacitated regular juror after deliberations had begun. The appellate court found that the trial court had erred and reversed the jury verdicts in favor of the defendants and remanded for a new trial.

The cause is now before this court pursuant to the allowance of a motion and cross-motion to certify the record.

Donald E. Caravona and Mark J. Obral, for appellees and cross-appellants.

Frank S. Hurd and Maureen Murphy; James T. Millican II; George W. Lutjen; Hugh M. Stanley, Jr. and Irene C. Keyse-Walker, for appellants and cross-appellees.


The first issue presented for our consideration is whether a trial court commits reversible error when it violates the express mandate of Civ. R. 47(C) by failing to discharge an alternate juror at the time the jury retires for deliberations and when it then substitutes an alternate juror for an incapacitated regular juror after deliberations have begun.

Maitland, Active, Cardinal, and Nationwide concede that the trial court violated Civ. R. 47(C), which provides in part that "[a]n alternate juror who does not replace a regular juror shall be discharged after the jury retires to consider its verdict." They contend, however, that such violation does not constitute reversible error. For support, they rely on United States v. Hillard (C.A. 2, 1983), 701 F.2d 1052, certiorari denied (1983), 461 U.S. 958. In Hillard, the Second Circuit Court of Appeals ruled at 1058 that "a violation of Rule 24(c) [which is essentially equivalent to Ohio Civ. R. 47(C)] does not require reversal per se, absent a showing of prejudice." In so holding, the Second Circuit reasoned: "The trial below had lasted over three weeks, involved nine defendants, and filled over two thousand pages of transcript. The district judge made painstaking efforts to minimize the potential prejudice to the defendants, and determined after the verdict that no prejudice had been sustained." Hillard, supra, at 1061.

The "painstaking efforts" to which the Hillard court referred included the alternate's reaffirmation that he could deliberate fully and fairly with the original jurors and the trial court's instruction to the "reconstituted" jury to begin deliberations anew. Id. at 1057. The Second Circuit additionally found that the defendants had sustained no actual prejudice as demonstrated by the "reconstituted" jury's having deliberated for more than two days and having asked for numerous exhibits, excerpts of testimony, and further instructions. Id.

We agree with the court of appeals that this case does not fall squarely within the facts of Hillard. The trial in this case, similar to the trial in Hillard, lasted eighteen days, involved twenty-eight witnesses, and over twenty-three hundred pages of transcript. However, the record does not reveal that the trial court in this case made any "painstaking efforts" to ensure that the defendants would suffer no prejudice. Specifically, the record does not indicate that the trial court instructed the jury to deliberate anew following the substitution or that the alternate reaffirmed his ability to deliberate fully and fairly with the regular jurors. Further, the parties agree, following the substitution, the jury deliberated for only several hours whereas the jury in Hillard convened for two days after the substitution.

Regardless, it is not necessary for us to determine at this time the applicability of the Hillard rule to Ohio cases because we find that the jury verdicts must be sustained as the LeForts waived any objections they might have had to the substitution. An appellate court will not consider any error which a party complaining of a trial court's judgment could have called but did not call to the trial court's attention at a time when such error could have been avoided or corrected by the trial court. Stores Realty Co. v. Cleveland (1975), 41 Ohio St.2d 41, 70 O.O. 2d 123, 322 N.E.2d 629. See, also, State v. Williams (1977), 51 Ohio St.2d 112, 5 O.O. 3d 98, 364 N.E.2d 1364. The record discloses that the LeForts had the opportunity to object to the substitution but failed to do so. It further shows that all parties knew of the substitution prior to the time the jury reached its verdicts. Likewise, the record further reveals that the LeForts requested that the trial court poll the jurors as to the general verdicts but specifically declined a poll as to the interrogatories. The trial court, additionally, prior to acceptance of the answers to interrogatories and general verdicts, inquired as to any reason why it should not accept them. The LeForts, again, remained silent. As the LeForts failed to object to the trial court's substitution, we hold that the error was waived.

The LeForts, moreover, may not rely upon the "plain error" exception to the waiver rule. The plain error doctrine provides for the correction of errors clearly apparent on their face and prejudicial to the complaining party even though the complaining party failed to object to the error at trial. Reichert v. Ingersoll (1985), 18 Ohio St.3d 220, 223, 18 OBR 281, 284, 480 N.E.2d 802, 805; Schade v. Carnegie Body Co. (1982), 70 Ohio St.2d 207, 209, 24 O.O. 3d 316, 317, 436 N.E.2d 1001, 1003. The plain error doctrine may be utilized in civil cases only with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice. Cleveland Elec. Illum. Co. v. Astorhurst Land Co. (1985), 18 Ohio St.3d 268, 275, 18 OBR 322, 327-328, 480 N.E.2d 794, 800.

The LeForts have failed to demonstrate to this court's satisfaction that a manifest miscarriage of justice did result from the trial court's violation of Civ. R. 47(C) and subsequent substitution of an alternate juror for an incapacitated juror after deliberations had begun. Arguably, a suggestion of prejudice arises when an alternate is substituted without any precautionary instructions by the trial judge. However, in this case, there is no suggestion in the record of any coercive effect upon the alternate or of any other prejudicial effect. Further, the interrogatories clearly indicate that even without the signatures of the alternate or incapacitated juror, a three-fourth's majority found no misconduct on the part of Nationwide or Cardinal as to the claims of any of the four plaintiffs. The interrogatories additionally indicate that even absent the alternate's signature, a three-fourth's majority found Anna to be the sole proximate cause of her own injuries. The record further shows that no prejudice resulted to the claims of Sherry or Shawn as the jury deliberated those claims on Monday, after the alternate had been impanelled.

However, the interrogatories finding that Maitland and Active committed no misconduct as to David's claim were both signed on Friday by six of the jurors, including Boehm. Yet, seven of the eight jurors, including Boehm, found that David's negligence was a proximate cause of his own injuries while only six of the eight, including Boehm, found David's negligence to be the sole proximate cause of his injuries. We note that the trial court instructed the jury to consider each applicable interrogatory before reaching its general verdicts. The alternate then, on Monday, affixed his name to a general verdict finding in favor of each defendant on David's claims. It may be presumed that the alternate followed the court's instruction and considered the interrogatories relating to David's claims before signing his name to the general verdict form. See Cleveland, Cincinnati, Chicago St. Louis Ry. Co. v. Grambo (1921), 103 Ohio St. 471, 478, 134 N.E. 648, 650; State v. Dunkins (1983), 10 Ohio App.3d 72, 73, 10 OBR 82, 84, 460 N.E.2d 688, 690.

This presumption is bolstered by the fact that when the court, at the LeForts' request, polled the jurors as to their general verdicts, the alternate stated in open court that it was his verdict (it being understood it was arrived at after consultation with the other jurors) to find in favor of the defendants and against David. There is no suggestion in the record that the alternate was coerced or in any way unduly influenced in reaching his decision. In conclusion, we find that the prejudice, if any, resulting from Boehm's signatures, which constituted parts of the three-fourth's majority on some interrogatories, does not rise to such a level as would constitute a manifest miscarriage of justice. Accordingly, there being no "plain error," we hold that the plaintiffs waived the error regarding juror substitution by not objecting to and participating in the rule-violating procedures.


The next question presented for our consideration is whether the trial court violated Civ. R. 47(B) by granting three peremptory challenges to each of the four defendants as well as Maitland's and Active's agents in this case. Civ. R. 47(B) provides in pertinent part: "In addition to challenges for cause provided by law, each party peremptorily may challenge three jurors. If the interests of multiple litigants are essentially the same, `each party' shall mean `each side.'"

Chakeres v. Merchants Mechanics Federal S. L. Assn. (1962), 117 Ohio App. 351, 24 O.O. 2d 131, 192 N.E.2d 323, summarizes the current status of the law with respect to peremptory challenges in civil cases. Chakeres provides at 355, 24 O.O. 2d at 133, 192 N.E.2d at 326:

"Under statutes which allow a specific number of challenges to `each party,' the majority view is that those who have identical interests or defenses are to be considered as one party and therefore only collectively entitled to the number of challenges allowed to one party by the statute. * * * However, if the interests of the parties defendant are essentially different or antagonistic, each litigant is ordinarily deemed a party within the contemplation of the statute and entitled to the full number of peremptory challenges. * * *"

This court, in Nieves v. Kietlinski (1970), 22 Ohio St.2d 139, 51 O.O. 2d 216, 258 N.E.2d 454, adopted the Chakeres rule and found that multiple plaintiffs who filed a common complaint, relied upon a singular statement of facts, and employed the same attorney to represent them could properly be considered a single party for the purposes of determining the proper number of peremptory challenges.

By contrast, the record in this case indicates that each defendant filed separate replies and defenses. Each, as well, was represented by its own counsel. Nationwide and its agent, moreover, the record indicates, filed a separate motion for partial summary judgment wherein they alleged that they owed the LeForts no duty to inspect the home or warn of hazardous conditions. Each defendant, additionally, could attempt to prove that its conduct did not constitute negligent misrepresentation. Each defendant asserted allegations which, if proved, would absolve it from liability to the detriment of the others. In sum, the defenses asserted did not necessarily stand or fall together. See Chakeres, supra, at 356, 24 O.O. 2d at 133, 192 N.E.2d at 326. Each defendant, therefore, pursuant to Civ. R. 47(B), was entitled to three peremptory challenges.

The record further indicates that no prejudice resulted from the trial court's having granted three peremptory challenges to Active's agent and three together to both of Maitland's agents, as no corporate defendant together with its agent or agents actually exercised more than three peremptory challenges.


The final issue presented for our consideration is whether the trial court erred in denying Nationwide's motion for directed verdict, as the evidence failed to establish that Nationwide conspired with Active, Maitland, and Cardinal to defraud the LeForts.

Conspiracy has been defined as a malicious combination of two or more persons to injure another in person or property, in a way not competent for one alone, resulting in actual damages. Minarjk v. Nagy (1963), 8 Ohio App.2d 194, 196, 93 Ohio Law Abs. 166, 168, 26 O.O. 2d 359, 360, 193 N.E.2d 280, 281. The ultimate fact of conspiracy is solely a question for the jury, unless the court can say, as a matter of law, that there is no proof tending to establish a conspiracy. Liston v. Statler (1917), 9 Ohio App. 398, 401.

In the present case, there was evidence tending to establish that Nationwide had conspired with Cardinal, Active, and Maitland to induce the LeForts to purchase an electrically defective home. Anna testified at trial that her State Farm agent had inspected the home but refused to insure it because of defective electrical wiring. Anna further testified that she spoke to real estate agents from Maitland and Active about her inability to procure fire insurance. The agents, according to Anna, told her that the house had been inspected. The Maitland agent then told her that a friend of hers from Nationwide would insure it. Anna added that the Nationwide agent told her that he would insure it, that the house had been inspected, and that there was "no problem" with the house. Anna stated that the Nationwide agent had relied on the real estate agents for this information. The insurance policy additionally indicates that Nationwide back-dated the insurance binder two months so that it would coincide close to the date title to the house was transferred to the LeForts. Therefore, the trial court properly denied Nationwide's motion for a directed verdict.

Accordingly, the judgment of the court of appeals is reversed, and the trial court's judgment is hereby reinstated.

Judgment accordingly.


MAHONEY, J., of the Ninth Appellate District, sitting for SWEENEY, J.

GEORGE, J., of the Ninth Appellate District, sitting for LOCHER, J.