{ "id": 3203168, "name": "WILLIAM F. BALLARD et al., Plaintiffs-Appellees and Cross-Appellants, v. ROBERT E. BIRD, SR., et al., Defendants-Appellants and Cross-Appellees", "name_abbreviation": "Ballard v. Bird", "decision_date": "1980-02-07", "docket_number": "No. 78-474", "first_page": "157", "last_page": "161", "citations": [ { "type": "official", "cite": "84 Ill. App. 3d 157" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "20 N.E.2d 893", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "895" } ], "opinion_index": 0 }, { "cite": "299 Ill. App. 524", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5592153 ], "opinion_index": 0, "case_paths": [ "/ill-app/299/0524-01" ] }, { "cite": "89 A.L.R. 356", "category": "reporters:specialty", "reporter": "A.L.R.", "year": 1934, "opinion_index": 0 }, { "cite": "330 N.E.2d 509", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "512" }, { "page": "512" } ], "opinion_index": 0 }, { "cite": "61 Ill. 2d 31", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2965355 ], "weight": 2, "pin_cites": [ { "page": "36" }, { "page": "36" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/61/0031-01" ] }, { "cite": "229 N.E.2d 504", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "37 Ill. 2d 494", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2866138 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/ill-2d/37/0494-01" ] }, { "cite": "345 N.E.2d 493", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "63 Ill. 2d 128", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5426498 ], "opinion_index": 0, "case_paths": [ "/ill-2d/63/0128-01" ] }, { "cite": "256 N.E.2d 71", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "120 Ill. App. 2d 68", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 1583504, 1583482 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/120/0068-02", "/ill-app-2d/120/0068-01" ] }, { "cite": "377 N.E.2d 102", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "60 Ill. App. 3d 504", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3352372 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/60/0504-01" ] } ], "analysis": { "cardinality": 534, "char_count": 9083, "ocr_confidence": 0.764, "pagerank": { "raw": 6.23283465871561e-08, "percentile": 0.38538559583975746 }, "sha256": "2e056e05ebaa6c7ba006810a04334d8ffb8a541dfd35a6d6beb41a9018f784f5", "simhash": "1:1f8539419a8f6c64", "word_count": 1453 }, "last_updated": "2023-07-14T15:36:38.181565+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "WILLIAM F. BALLARD et al., Plaintiffs-Appellees and Cross-Appellants, v. ROBERT E. BIRD, SR., et al., Defendants-Appellants and Cross-Appellees." ], "opinions": [ { "text": "Mr. PRESIDING JUSTICE STOUDER\ndelivered the opinion of the court:\nPlaintiffs William Ballard and Marilyn Ballard initiated this action by filing a three-count complaint in the circuit court of Bureau County alleging fraudulent representations on the part of defendants Robert Bird, Jr., and Aleta Bird, as sellers of a parcel of real estate, and defendants Robert Bird, Sr., and Margaret Stanfield, as broker and salesperson of the parcel. After a jury trial, verdicts awarding compensatory and exemplary damages were rendered against all defendants. Judgment notwithstanding the verdict was granted as to the exemplary damages against the sellers. Defendants appeal their adverse judgments, and plaintiffs cross-appeal the judgment notwithstanding the verdict.\nGiving rise to this action is a fairly complex set of factual circumstances, many facets of which were controverted at trial. Early in 1972, defendants Robert Bird, Jr., and Aleta Bird purchased the subject parcel of this cause, the \u201cLog Cabin\u201d premises, in contemplation of relocation from St. Louis to Princeton. Shortly thereafter, the Birds offered the property for sale through the offices of Bird Real Estate, which is owned and operated by Robert Bird, Jr.\u2019s father, defendant Robert Bird, Sr., and which employs his sister, defendant Margaret Stanfield. On or about May 1,1972, plaintiffs came to Bird Real Estate and explained to defendant Stanfield that they sought a home in the country where Mr. Ballard could operate a \u201cspeed shop\u201d and sell high performance and racing automobile accessories. As a consequence, a sale of the \u201cLog Cabin\u201d premises took place and the buyers went into possession.\nThe major thrust of the complaint and the issues arising from the evidence involve a controversy about whether or not the defendants misrepresented both the right of the buyers to use a well on adjacent property and whether the premises were zoned for the use intended by the buyers. The jury resolved these issues in favor of the plaintiffs and entered judgment for compensatory damages of $4,000 against each of the defendants and also exemplary damages. Pursuant to the defendants\u2019 motion the trial court set aside the motion for exemplary damages against Robert Bird, Jr., and Aleta Bird, but declined any other post-trial relief requested by defendants.\nOn this appeal the defendants have made several assignments of error but the threshold issue regarding the appellants\u2019 failure to follow the rules must first be considered. On appeal, defendants-appellants failed to timely file an abstract of or designation of excerpts from the record as required by Supreme Court Rule 342 (Ill. Rev. Stat. 1977, ch. 110A, par. 342). Appellants filed their brief on July 23,1979, without filing an abstract of or designation of excerpts from the record. On September 5, 1979, plaintiffs-appellees filed their response brief which also contained their cross-appeal. Appellants filed no reply brief except that on September 24, 1979, they filed a motion to file abstract instanter, which appellees objected to. We took the motion under advisement with the case.\nWe believe the appellants\u2019 motion should be denied. Appellants failed to follow the rules of appellate procedure and plead no excuse other than the crush of other cases. Appellees relied on this failure and pled waiver on several issues, failing to address these issues on the merits. In their brief, they moved that appellants\u2019 appeal be dismissed for failure to file an abstract of or designation of excerpt from the record. In the absence of a legal reason for the delay, we see no reason to prejudice appellees by permitting appellant to file at this late date.\nThus, appellants have failed to file an abstract of, designation of excerpts or excerpts from the record as required. The abstract or excerpts have been considered in legal effect to be the appellants\u2019 pleadings. (King v. City of Chicago (1978), 60 Ill. App. 3d 504, 377 N.E.2d 102.) The unexcused failure to file either abstract of, designations of excerpts, or excerpts from the record warrants dismissal. (Denenberg v. Prudence Mutual Casualty Co. (1970), 120 Ill. App. 2d 68, 256 N.E.2d 71.) The failure to file an abstract or excerpts is a serious omission, and the appeal is dismissed.\nOn cross-appeal, plaintiffs contend that the trial court erred in allowing defendants\u2019 motion for judgment notwithstanding the verdict with respect to the award of exemplary damages against defendant sellers Robert Bird, Jr., and Aleta Bird. Defendants failed to file any brief at all in response to the cross-appeal. While we have dismissed defendants\u2019 appeal for failing to file an abstract, designation of excerpts or excerpts of record, this is different from reversing the judgment of the trial court pro forma as to the cross-appeal for exemplary damages. (See First Capital Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 345 N.E.2d 493.) The judgment of a trial court should not be reversed pro forma for the appellee\u2019s failure to file its brief as required by the rule. A considered judgment of the trial court should not be set aside without some consideration of the merits of the appeal. First Capital Mortgage Corp. v. Talandis Construction Corp.\nOn cross-appeal, plaintiffs contend that the trial court erred in allowing defendants\u2019 motion for judgment notwithstanding the verdict with respect to the award of exemplary damages against defendant sellers Robert Bird, Jr., and Aleta Bird. As the trial court offered no rationale for this decision in its order of September 20, 1978, we shall presume the court found all of the evidence, viewed in its aspect most favorable to plaintiffs, so overwhelmingly favored the above defendants on this issue that no contrary verdict based on that evidence could ever stand. (Pedrick v. Peoria ir Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504.) Plaintiffs raise no question as to the exemplary damage instruction submitted to the jury but contend the appropriate standard is set forth in Mattyasovszky v. West Towns Bus Co. (1975), 61 Ill. 2d 31,36,330 N.E.2d 509, 512, where the court stated:\n006 With respect to this problem, section 217C of the Restatement (Second) of Agency states:\n\u2018Punitive damages can properly be awarded against a master or other principal because of an act by an agent if, but only if:\n# # *\n(c) the agent was employed in a managerial capacity and was acting in the scope of employment, or\n(d) the principal or a managerial agent of the principal ratified or approved the act.\u2019 \u201d\nThe difficulty with plaintiffs\u2019 assertion is that the Restatement provisions set out two guidelines. Some courts take the position a principal is liable for exemplary damages only if he has authorized or ratified the act of his agent while others take the view he is so liable regardless of such authorization or ratification. (See 22 Am. Jur. 2d Damages \u00a7257 (1965); Annot., 89 A.L.R. 356 (1934).) Plaintiffs have cited no Illinois decision adopting either view and our research has revealed none. While the difference of opinion expressed in the two views is reflected in decisions dealing with corporate liability for exemplary damages (see 22 Am. Jnr. 2d Damages \u00a7261 (1965)), we do not find the apparent adoption of the second view in this corporate setting (see State Bank v. Potosi Tie & Lumber Co. (1939), 299 Ill. App. 524, 20 N.E.2d 893, 895) dispositive in the case at bar. In the corporate setting, no reasonable distinction can be made between the guilt of the employee and the guilt of the corporation. In the case at bar, there was no evidence that the principals participated in or were aware of any of the alleged fraudulent acts. Therefore any reckless and malicious conduct giving rise to exemplary damages would necessarily be neither authorized nor ratified.\nExemplary damages are awarded primarily to punish the offender and discourage similar offenses, and these punitive and admonitary justifications are sharply diminished where liability is imposed vicariously. (See Mattyasovszky v. West Towns Bus Co. (1975), 61 Ill. 2d 31,36, 330 N.E.2d 509, 512.) We therefore find no error in the granting of the motion for judgment notwithstanding the verdict with respect to those defendants not participating in the alleged representations.\nFor the foregoing reasons the appeal of defendants is dismissed. With respect to the cross-appeal by the plaintiffs the judgment of the Circuit Court of Bureau County setting aside the judgment against Robert Bird, Jr., and Aleta, his wife, is affirmed.\nAppeal dismissed; judgment on cross-appeal affirmed.\nALLOY and BARRY, JJ., concur.", "type": "majority", "author": "Mr. PRESIDING JUSTICE STOUDER" } ], "attorneys": [ "Watts C. Johnson, of Johnson, Martin & Russell, P. C., and Donald R. Bird, both of Princeton, for appellants.", "Mathew A. Maloney, of Pierson and Maloney, of Princeton, for appellees." ], "corrections": "", "head_matter": "WILLIAM F. BALLARD et al., Plaintiffs-Appellees and Cross-Appellants, v. ROBERT E. BIRD, SR., et al., Defendants-Appellants and Cross-Appellees.\nThird District\nNo. 78-474\nOpinion filed February 7, 1980.\nRehearing denied June 18, 1980.\nWatts C. Johnson, of Johnson, Martin & Russell, P. C., and Donald R. Bird, both of Princeton, for appellants.\nMathew A. Maloney, of Pierson and Maloney, of Princeton, for appellees." }, "file_name": "0157-01", "first_page_order": 179, "last_page_order": 183 }