LeFort v. Century 21-Maitland Realty Co.

512 N.E.2d 640, 32 Ohio St. 3d 121, 1987 Ohio LEXIS 354
CourtOhio Supreme Court
DecidedAugust 19, 1987
DocketNo. 86-959
StatusPublished
Cited by250 cases

This text of 512 N.E.2d 640 (LeFort v. Century 21-Maitland Realty Co.) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
LeFort v. Century 21-Maitland Realty Co., 512 N.E.2d 640, 32 Ohio St. 3d 121, 1987 Ohio LEXIS 354 (Ohio 1987).

Opinion

Mahoney, J.

I

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 [123]*123an 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 [124]*124as 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. Ilium. 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.

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Cite This Page — Counsel Stack

Bluebook (online)
512 N.E.2d 640, 32 Ohio St. 3d 121, 1987 Ohio LEXIS 354, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lefort-v-century-21-maitland-realty-co-ohio-1987.