Johnson v. Compost Products, Inc.

• Decision Date: 13 June 2000
• Docket Number: No. 2-99-0838, No. 2-99-1032.
• Citation: 314 Ill. App.3d 231,731 N.E.2d 948,247 Ill.Dec. 175
• Parties: Dolores JOHNSON, Mark Johnson, Larry Larson, Condon Farms, Inc., Russ Hinterlong, Steven Gravley, Dale Bowen, David Chelsen, and Lori Chelsen, Plaintiffs-Appellees, v. COMPOST PRODUCTS, INC., Defendant-Appellant (Elizabeth A. Bates, Contemnor-Appellant; Jim Whalen, Beverly Hook, Darien Hook, Patricia J. Komes, Milton E. Hook, Marina Abbott, David Elmore, Hugh McAuley, Frances Gravley, Kay Elmore, Earl Eike, Ralph Dannenburg, Michael Kerry, and David Verbarg, Plaintiffs; West Suburban Bank, as Trustee, under Trust No. 3344, Defendant). Dolores Johnson, Mark Johnson, Larry Larson, Condon Farms, Inc., Russ Hinterlong, Steven Gravley, Dale Bowen, David Chelsen, and Lori Chelsen, Plaintiffs-Appellees, v. Compost Products, Inc., Defendants-Appellants (Jim Whalen, Beverly Hook, Darien Hook, Patricia J. Komes, Milton E. Hook, Marina Abbott, David Elmore, Hugh McAuley, Frances Gravley, Kay Elmore, Earl Eike, Ralph Dannenburg, Michael Kerry, and David Verbarg, Plaintiffs; West Suburban Bank, as Trustee, under Trust No. 3344, Defendant).
• Court: United States Appellate Court of Illinois

731 N.E.2d 948

314 Ill. App.3d 231

247 Ill.Dec. 175

Dolores JOHNSON, Mark Johnson, Larry Larson, Condon Farms, Inc., Russ Hinterlong, Steven Gravley, Dale Bowen, David Chelsen, and Lori Chelsen, Plaintiffs-Appellees, v. COMPOST PRODUCTS, INC., Defendant-Appellant (Elizabeth A. Bates, Contemnor-Appellant; Jim Whalen, Beverly Hook, Darien Hook, Patricia J. Komes, Milton E. Hook, Marina Abbott, David Elmore, Hugh McAuley, Frances Gravley, Kay Elmore, Earl Eike, Ralph Dannenburg, Michael Kerry, and David Verbarg, Plaintiffs; West Suburban Bank, as Trustee, under Trust No. 3344, Defendant).

Dolores Johnson, Mark Johnson, Larry Larson, Condon Farms, Inc., Russ Hinterlong, Steven Gravley, Dale Bowen, David Chelsen, and Lori Chelsen, Plaintiffs-Appellees, v. Compost Products, Inc., Defendants-Appellants (Jim Whalen, Beverly Hook, Darien Hook, Patricia J. Komes, Milton E. Hook, Marina Abbott, David Elmore, Hugh McAuley, Frances Gravley, Kay Elmore, Earl Eike, Ralph Dannenburg, Michael Kerry, and David Verbarg, Plaintiffs; West Suburban Bank, as Trustee, under Trust No. 3344, Defendant).

Nos. 2-99-0838, 2-99-1032.

Appellate Court of Illinois, Second District.

June 13, 2000.

Paul J. Bargiel, Paul J. Bargiel, P.C., Chicago, Elizabeth A. Bates, Huck, Bouma, Martin, Charlton & Bradshaw, P.C., Wheaton, for Elizabeth A. Bates, Compost Products, Inc., West Suburban Bank.

Dallas C. Ingemunson, Law Offices of Dallas C. Ingemunson, P.C., Yorkville, for Dolores Johnson.

Elizabeth A. Bates, Huck, Bouma, Martin, Charlton & Bradshaw, P.C., Wheaton, Paul J. Bargiel, Paul J. Bargiel, P.C., Chicago, for Compost Products, Inc.

Justice HUTCHINSON delivered the opinion of the court:

In this consolidated appeal, contemnor, Elizabeth A. Bates, a licensed attorney representing defendant, Compost Products, Inc., appeals from an order of the circuit court of Kendall County finding her in direct criminal contempt of court and imposing a $50 fine. Defendant appeals from the trial court's finding that defendant's mushroom composting business constituted a private nuisance and its subsequent entry of an injunction. Plaintiffs to this appeal include Dolores Johnson, Mark Johnson, Larry Larson, Condon Farms, Inc., Russ Hinterlong, Steven Gravley, Dale Bowen, David Chelsen, and Lori Chelsen. We reverse and remand.

In April 1997 plaintiffs, Dolores Johnson, Mark Johnson, Larry Larson, Jim Whalen, Condon Farms, Inc., Beverly Hook, Darien Hook, Russ Hinterlong, Patricia J. Komes, Milton E. Hook, Marina Abbott, David Elmore, Hugh McAuley, Frances Gravley, Kay Elmore, Steven Gravley, Dale Bowen, Earl Eike, Ralph Dannenberg, Michael Kerry, David Verbarg, David Chelsen, and Lori Chelsen, filed a complaint in the circuit court of Kendall County. Plaintiffs also named West Suburban Bank as a defendant; however, it is not a party to this appeal. Plaintiffs' complaint alleged that the operation of defendant's business, a compost farm, "results in an emission of a strong offensive order which has a serious detrimental effect upon the life and enjoyment" of plaintiffs. In their complaint, plaintiffs sought a permanent injunction restraining defendant from "permitting the emission of noxious and offensive odors."

On June 20, 1997, defendant filed a motion to transfer venue, pursuant to section 2-104 of the Code of Civil Procedure (the Code) (735 ILCS 5/2-104 (West 1996)), and attached the affidavit of David Woldman, defendant's president. Defendant stated that, because it is a corporation with its registered office located in Du Page County and its compost business located in La Salle County, it is a resident of either Du Page or La Salle County but not Kendall County. Defendant also contended that the alleged "transaction" out of which plaintiffs' cause of action arose was located at the site of its compost operation in La Salle County. Defendant concluded that, because no defendant resided in Kendall County and no transaction, or some part thereof, occurred in Kendall County, venue in Kendall County was improper. Defendant requested that the matter be transferred to the circuit court of La Salle County or another appropriate venue. On June 27, 1997, the trial court denied defendant's motion to transfer venue.

Following the trial court's denial of defendant's motion to transfer venue, defendant moved to transfer venue based on the doctrine of forum non conveniens (735 ILCS 5/2-101 (West 1996)). The trial court denied defendant's motion. In January 1998 defendant moved to dismiss plaintiffs' complaint pursuant to section 2-619(a)(9) of the Code (735 ILCS 5/2-619(a)(9) (West 1998)), alleging that plaintiffs' cause of action was barred by the Farm Nuisance Suit Act (740 ILCS 70/0.01 et seq. (West 1998)). In May 1998 the trial court denied defendant's motion to dismiss.

Thereafter, defendant filed its answer, affirmative defenses, and counterclaim. Plaintiffs filed their answer, and the cause was set for trial. On June 21, 1999, the trial commenced. After plaintiffs' counsel completed the direct examination of their first witness, the trial court and counsel engaged in the following colloquy:

"MR. INGEMUNSON [Plaintiffs' attorney]: I have no further questions, Your Honor.

THE COURT: Cross?

* * *

Q. [Mr. Bargiel, defense attorney:] I want to show you what's been marked as Plaintiffs' Exhibit—may I approach the witness?

THE COURT: If your legs are working, yes. If you ask that question again, I'm going to hold you in contempt and fine you 50 bucks; all right?

MR. BARGIEL: Okay."

On June 22, 1999, during the next day's afternoon session, the trial court and defendant's counsel engaged in the following colloquy:

"THE COURT: * * * Do you have any other witnesses?

MR. BARGIEL: Yes, your Honor. The next witness is * * * outside.

MS. BATES [Defense attorney]: May I approach?

THE COURT: That will cost you 50 bucks because you were in court yesterday and heard the admonishment that I gave. You are in contempt.

MS. BATES: For the record, I object to it.

THE COURT: Okay, but pay the 50 bucks.

MS. BATES: For the record, also, your Honor, the statement about the contempt was about approaching the witness, not approaching your Honor.

THE COURT: It's still going to cost you $50. If you want to argue, it's going to cost you $100.

* * *

MS. BATES: I have nothing more, your Honor."

The June 22, 1999, order directed contemnor to pay the $50 fine within 10 days. At the conclusion of the trial, the parties submitted written closing arguments. On August 13, 1999, the trial court issued its letter opinion. The trial court found that a strong odor emanates from defendant's place of business, which interferes with the enjoyment of the properties owned by plaintiffs. The trial court further found that the odor constituted a nuisance and determined that an injunction would be entered. On September 3, 1999, the trial court entered an injunction, finding that defendant's business constituted a private nuisance and giving defendant six months to eliminate "the dissemination of obnoxious odors." Defendant timely appeals from the trial court's entry of the injunction, and contemnor timely appeals from the trial court's finding of contempt.

With respect to contemner's appeal, criminal contempt of court is defined as conduct calculated to embarrass, hinder, or obstruct a court in its administration of justice or to derogate from its authority or dignity, thereby bringing the administration of law into disrepute. People v. Willson, 302 Ill.App.3d 1004, 1005, 236 Ill.Dec. 201, 706 N.E.2d 1075 (1999), citing People v. Simac, 161 Ill.2d 297, 204 Ill.Dec. 192, 641 N.E.2d 416 (1994). Direct criminal contempt results when the contemptuous conduct occurs in the presence of the trial court. Willson, 302 Ill.App.3d at 1005,236 Ill.Dec. 201,706 N.E.2d 1075. Before citing an individual with contempt, the trial court must find that the conduct was willful. Willson, 302 Ill.App.3d at 1005,236 Ill.Dec. 201,706 N.E.2d 1075, citing People v. Ernest, 141 Ill.2d 412, 152 Ill.Dec. 544, 566 N.E.2d 231 (1990). The elements of criminal contempt, an intent and an act, must be proved beyond a reasonable doubt. In re Marriage of Bartlett, 305 Ill.App.3d 28, 31, 238 Ill.Dec. 357, 711 N.E.2d 460 (1999). The trial court's power to impose a finding of contempt is "`a delicate one, and care is needed to avoid arbitrary or oppressive conclusions.'" Simac, 161 Ill.2d at 306,204 Ill.Dec. 192,641 N.E.2d 416, quoting Cooke v. United States, 267 U.S. 517, 539, 45 S.Ct. 390, 396, 69 L.Ed. 767, 775 (1925). Our standard of review is whether sufficient evidence exists to support a finding of contempt and whether the trial court considered facts outside of its personal knowledge. Simac, 161 Ill.2d at 306,204 Ill.Dec. 192,641 N.E.2d 416. Our review may also consider provocation or legal error committed by the trial court. People v. Bell, 276 Ill. App.3d 939, 945, 213 Ill.Dec. 351, 658 N.E.2d 1372 (1995).

In light of the aforementioned principles, we conclude that the evidence is insufficient to support contemnor's conviction of direct criminal contempt. This court must look to the surrounding circumstances and the character of the action of the contemnor. People ex rel. Kunce v. Hogan, 67 Ill.2d 55, 61, 7 Ill.Dec. 63, 364 N.E.2d 50 (1977). In the present case, on the first day of trial, defense counsel Bargiel asked whether he could approach the witness. The trial court informed counsel that, if he asked that question again, he would be found in contempt and fined. The following day, a different attorney representing defendant asked whether she could approach the bench. At that time, the trial court found her in contempt based on the perceived violation of the previous day's warning. The record reflects contemnor's understanding that she was not to inquire again as to whether, she could approach a witness. However, on the second occasion, it was a request to approach the bench. The second request appears to be either, at...