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Hazdra Homes, Inc. v. County of Du Page

APRIL 16, 1975.

HAZDRA HOMES, INC., PLAINTIFF-APPELLEE,

v.

THE COUNTY OF DU PAGE, DEFENDANT-APPELLANT. — (EDWARD S. BISHOP, JR., ET AL., INTERVENORS-APPELLANTS.)



APPEAL from the Circuit Court of Du Page County; the Hon. PHILIP F. LOCKE, Judge, presiding.

MR. JUSTICE GUILD DELIVERED THE OPINION OF THE COURT:

On April 5, 1972, the plaintiff, Hazdra Homes, Inc., filed a complaint for declaratory judgment asking the trial court to declare the Du Page County Zoning Ordinance void and unconstitutional as applied to the property therein described. By leave of court the property owners adjacent to, or in the nearby vicinity of, the proposed planned-unit development were permitted to intervene. The trial court, sitting without a jury, held that the zoning, as it applied to the property in question, was unconstitutional and that a special-use permit should be issued by the County of Du Page authorizing the planned-unit development on the property in question and enjoined the County of Du Page and the intervenors herein from interfering with the plaintiff's use of the property as a planned-unit development. Both the County of Du Page and the intervenors have appealed.

The issues presented are: (1) whether the trial court erred in the admission of a certain document or documents into evidence; (2) whether the plaintiff had standing to maintain the action; and (3) whether condemnation of approximately two-thirds of the subject property during the pendency of this appeal renders this appeal moot. We find, as will be hereinafter detailed, that (1) the trial court committed reversible error in admitting a certain exhibit into evidence; (2) that the plaintiff failed to show by the proofs adduced at trial that it had an interest in the subject property sufficient to entitle it to maintain this action; and (3) that the subsequent condemnation of a substantial portion of the subject property renders issues concerning the judgment of the trial court as it relates to that portion of the property moot.

The complaint alleged "[t]hat the plaintiff, Hazdra Homes, Inc., at all times mentioned herein, was the owner of or the purchaser under a valid enforceable contract * * *" of the therein described property consisting of approximately 140 acres. While the acreages involved herein are not entirely clear from the instant record, plaintiff offered evidence at trial that it held title to, a contract to purchase, or had a possessory interest in 47 or less of the total acres involved. As to the remainder, the record indicates that plaintiff was an optionee under an option contract with the Egermanns, the owners of that portion of the property covered by the option. By its terms, the option had expired on June 1, 1970, almost 2 years prior to the filing of this lawsuit. While no evidence of its extension or execution was introduced at trial, it appears, as noted below, that the option had in fact been extended and executed prior to trial.

• 1 During oral argument it was brought to this court's attention that two other suits involving the subject property, or a portion thereof, had taken place since the filing of the appeal herein. One of these suits was brought by Hazdra Homes, Inc., against the optioners, the Egermanns, for specific performance of the option agreement noted above. We are urged not to take judicial notice of this suit and the decree therein awarding specific performance. We feel somewhat like the ostrich with its head in the sand in that we know what happened but can't consider it. It so happens that, in view of the opinion expressed herein, the specific performance suit and the resulting decree have no bearing upon our decision one way or the other. The second suit was brought by the Forest Preserve District of Du Page County seeking the condemnation of 91.515 acres of the subject property. A decree by stipulation was entered into by the Forest Preserve District, as petitioner, and Hazdra Homes, Inc., and the Egermanns, the owners and optionors under the above option agreement, among others, as defendants, whereby the Forest Preserve District paid the sum of $1,235,452.50 for the 91.515 acres. With regard to judicial notice of this condemnation proceeding, we do not find that we may not take judicial notice thereof. As the court stated in Carnes v. Carnes (1948), 333 Ill. App. 316, 320, 77 N.E.2d 341, 343:

"The rule that we cannot admit evidence in this court (Atkins v. Atkins, 393 Ill. 202) should not be applied to produce absurd results or injustice."

Were we to ignore the condemnation proceeding, and were we to affirm the trial court, we would be approving the inapplicability of the Du Page County zoning as applied to two-thirds of the property no longer owned by the plaintiff but now a part of the Du Page County Forest Preserve District.

We now return to the lawsuit involved in this appeal. Prior to trial the intervenors had served notice on the plaintiff to produce "all deeds, contracts or other documents which evidence any right, title or any interest in the plaintiff to the real property which is the subject of this cause." Pursuant thereto, certain documents were produced and admitted into evidence. However, the above-mentioned contract to purchase and/or the option agreement were not produced or shown to the defendant or the intervenors. After the admission of certain documents, the intervenors remonstrated that the plaintiff had not furnished the contracts plaintiff might possess regarding the purchase of the property which was referred to by counsel for the plaintiff as "Plaintiff's Rebuttal Exhibit" and also marked "Defendant Objector's Exhibit No. 7." At this point, counsel for the plaintiff handed the trial court a document or documents which he described as a "duplicate executed contract" and moved the court to substitute a Xerox copy in lieu thereof. The court then stated that counsel for the plaintiff had handed him two different "exhibits." Counsel then withdrew one and made a motion to impound the document, which he referred to as a "contract." Oddly enough, at this point, the trial court refused to allow counsel for the defendant or the intervenors to see the document in question, despite defense counsel's five requests that he be allowed to examine and question the witness, George Hazdra, about the same. At the close of all proofs and after the parties had rested, the following bizarre colloquy took place between counsel for Hazdra Homes, Inc., and the court:

"MR. GORDON: Your Honor, I would like to offer into evidence a document which is marked Defendant Objector's Exhibit No. 7 which is the original Xerox copy thereof of the Hazdra contract and again ask that it be impounded.

THE COURT: Well, do you wish counsel to see it?

MR. GORDON: I would rather not, but I presume that is the proper way to do it.

THE COURT: That's right."

We therefore have the unusual situation of a document marked as "Defendant Objector's Exhibit No. 7" being offered into evidence by plaintiff and being admitted into evidence without affording defense counsel a prior opportunity to examine it or question the witness regarding the same.

The report of proceedings was apparently presented to the trial court for certification on or about December 1, 1972. The intervenors objected to the certification of the report of proceedings because it did not include "Defendant Objector's Exhibit No. 7." "Defendant Objector's Exhibit No. 7" was then forwarded to the attorney for the intervenors by the secretary to the trial judge. Upon examination of the same, the attorney for the intervenors found that this exhibit included not only a real estate sales contract but also a second document entitled "Real Estate Option Contract." The latter document covered the option to purchase the 90 odd acres comprising the remainder of the property not included in the real estate sales contract or owned by George and Joseph Hazdra. The attorney for the intervenors telephoned the attorney for the plaintiff and advised him that both documents had been included in the exhibit. The attorney for the plaintiff requested the attorney for the intervenors to return the option agreement to him, which was done by mail the ...


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