Kendle v. Village of Downers Grove
| Decision Date | 10 June 1987 |
| Docket Number | No. 2-86-0818,2-86-0818 |
| Parties | , 109 Ill.Dec. 62 James R. KENDLE and Lois M. Kendle, Plaintiffs-Appellants, v. VILLAGE OF DOWNERS GROVE, a municipal corporation, et al., Defendants-Appellees. |
| Court | United States Appellate Court of Illinois |
Rathje, Woodward, Dyer & Burt, S. Louis Rathje, John F. Garrow, Reese J. Peck, Wheaton, for plaintiffs-appellants.
Brady, McQueen, Martin, Collins & Jensen, Wiley W. Edmondson, Charles F. Haverty III, Elgin, Bowers, Carney, Wiedel & Slansky, Douglas A. Slansky, Barbara J. Gosselar, Downers Grove, Pitler & Mandell, Chicago (Barry A. Pitler, Chicago), for appellee, Philip I. Mappa.
Plaintiffs, James R. and Lois M. Kendle, appeal from the trial court's judgment denying their motion for voluntary dismissal pursuant to section 2-1009 of the Code of Civil Procedure (Ill.Rev.Stat.1985, ch. 110, par. 2-1009) and dismissing their cause of action with prejudice.
Plaintiffs raise the following issues on appeal: (1) whether the trial court erred in denying their motion because they had an absolute right to a voluntary dismissal under section 2-1009; (2) whether the trial court erred in ordering, on its own motion, an evidentiary hearing to determine if there would be any prejudice to defendants if plaintiffs' motion for voluntary dismissal was granted; and (3) whether the trial court erred in entering its written order nunc pro tunc to the date of the hearing, in including findings not supported by the record, and in denying their motion for reconsideration.
Plaintiffs filed their complaint on December 26, 1985, against the village of Downers Grove (village), Philip I. Mappa Interests, Inc. (Mappa), and the owners of property located in a residential development known as Butterfield Woods. Only the defendant Mappa and the village filed briefs in this appeal. The complaint alleged that Mappa, a developer, had proposed a business planned development which included plans for eight office buildings ranging from 5 to 15 stories and for an eight-story hotel. Plaintiffs also alleged that the proposed development site is a heavily wooded area consisting of 33 single-family residences situated on lots ranging from one to six acres, and that Mappa has executed options to purchase with the owners of 31 of the 33 individual properties.
Plaintiffs further alleged that the site is surrounded by residential properties and had been zoned residential by DuPage County, but was annexed by the village and the zoning changed to "Office/Research District, Planned Unit Development" on November 4, 1985. Plaintiffs alleged that the proposed development would entirely surround their property, would require them to rely on private driveways as their means of access to and from their property, and would increase the rate of storm water runoff and divert the flow of runoff onto their property causing a substantial loss of trees.
The complaint requested a declaration that the ordinances of the village annexing and changing the zoning of the site are invalid and void and requested an injunction restraining the village from enforcing the ordinances and restraining Mappa from proceeding with the development of the site.
On January 24, 1986, Mappa filed a motion for trial setting, alleging that no party defendant had been served with process by plaintiffs and that plaintiffs' suit had created a cloud on the title to the individual properties preventing their acquisition and forestalling construction of the proposed Highland Woods Development. The motion requested that, due to the substantial harm which may accrue to the individual property owners, the village, and Mappa, the court set a date for trial on the merits at the earliest convenient date. On January 28, 1986, the court ordered that the defendants had seven days to file their answer and appearance, that discovery cutoff was March 31, 1986, and that trial would be in April or May 1986.
Mappa and several of the individual defendants filed answers to the complaint. The village filed answers to plaintiffs' interrogatories on March 26, 1986, and plaintiffs filed answers to defendants' interrogatories on March 31, 1986. On April 3, 1986, defendants filed a motion for expedited trial alleging irreparable harm due to the continuation of the lawsuit. Attached to the motion was a copy of a pamphlet distributed by an organization known as "START, Inc." which included the statement:
A hearing was held on the motion on April 29, 1986. Plaintiffs' counsel stated that they would be conducting depositions of defendants' 12 expert witnesses after plaintiffs' experts were able to review the written discovery. He indicated that it was premature at that time to set an early trial date as they needed a reasonable amount of time to prepare adequately. The court then set trial to begin on June 4, 1986.
Mappa filed answers to plaintiffs' interrogatories on April 30, 1986. Plaintiffs filed a motion to continue on May 9, 1986. Plaintiffs alleged that interrogatories had not been answered by the individual defendants and that defendants had disclosed 15 expert witnesses prior to March 28, 1986, who were being scheduled for depositions. Plaintiffs stated that they were proceeding in all good faith with their discovery, that they were entitled to discovery, and requested that the trial dates be continued. The court, on May 13, 1986, set trial to begin on June 18, 1986. The individual defendants filed answers to plaintiffs' interrogatories between May 9, 1986, and June 12, 1986.
Plaintiffs filed another motion for a continuance and argued that they had received new information not previously disclosed to them regarding the drainage plan for the site during the deposition of one of defendants' experts. They also argued that several documents had just been made available to them by Mappa and that they had been unable to conduct depositions of several of defendants' expert witnesses. On June 10, 1986, the trial court reset trial to begin on June 30.
On June 23, 1986, plaintiffs again filed a motion to continue trial alleging that several depositions had not yet been taken, that deposition transcripts had not been received, and that documents of significant relevance and importance to plaintiffs' traffic expert had just been received. Mappa responded stating that any necessary depositions had been taken or were scheduled and that, as plaintiffs had already been given two continuances, they were not entitled to another. Following a hearing on June 24, 1986, where plaintiffs stated that they were only asking for 10 to 14 days, the court denied plaintiffs' motion.
Plaintiffs, on June 25, 1986, filed a motion for voluntary dismissal pursuant to section 2-1009 of the Code of Civil Procedure (Ill.Rev.Stat.1985, ch. 110, par. 2-1009), stating that the motion was being made prior to the beginning of trial, that no counterclaim had been filed, and that costs incurred by all defendants as shown by the official court file and clerk's records were being tendered. The individual defendants filed a response in opposition to plaintiffs' motion for voluntary dismissal, arguing that the lawsuit had had the effect of preventing the sale of their homes to Mappa and that delay in the prompt resolution of the controversy had caused real hardship, uncertainty, and irreparable harm. They alleged that, with their motion for voluntary dismissal, plaintiffs were attempting to gain the delay precluded by the trial court's order denying them another continuance.
A hearing was held on the motion June 27, 1986. The court, after hearing arguments of counsel and on its own motion, set the matter for a hearing to allow the defendants to present evidence and testimony to show how they might be prejudiced if plaintiffs were granted the voluntary dismissal without prejudice. Plaintiffs elected not to participate in the hearing held on June 30, 1986. Defendants presented the testimony of several of the individual property owners involved regarding hardships and stress they were undergoing because of the pending lawsuit.
Stephen Veitch, village manager of Downers Grove, testified that the village's consideration of petitions for development of similarly situated property and decisions concerning the financing of improvements have been inhibited by the pendency of this litigation. Arthur Fedder, office counsel of Chicago Title and Trust, testified that his company is not insuring against any losses which might arise out of the outcome of this litigation and would not issue a zoning endorsement insuring that the improvements located on the land comply with the zoning ordinances. Philip I. Mappa, Mappa's president, testified that because of the inability to receive a zoning endorsement from Chicago Title and Trust, he could not get the financing committed to the project because the commitment requires free and clear title in terms of the zoning required. He also testified that, under the current agreements with the property owners, the price he will be paying for the properties will increase by $840,000 per year.
Following this hearing, the trial judge determined that plaintiffs' motion would be granted with prejudice. A written order was prepared by defendants' counsel and was entered July 2, 1986, nunc pro tunc to June 30, 1986. The written order stated that plaintiffs' motion for voluntary dismissal was denied and that, plaintiffs having refused to proceed to trial on the date assigned, the case was dismissed with...
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