APPEAL from the Circuit Court of Du Page County; the Hon.
BRUCE R. FAWELL, Judge, presiding.
MR. JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT:
Rehearing denied July 20, 1977.
An Association of Franciscan Fathers of the State of Illinois (hereinafter Franciscans) appeals from a judgment denying its petition for relief under section 72 of the Civil Practice Act (Ill. Rev. Stat. 1973, ch. 110, par. 72) (No. 76-19), and from a judgment dismissing its complaint for equitable relief from an alleged excessive taking (No. 76-20). We have consolidated the appeals for opinion.
The dispute involves eminent domain proceedings filed in 1968 to acquire a parcel of property in the northern part of the Franciscans' 400-acre tract for the use of Hinsdale Township High School District No. 86 as a prospective additional high school site; the decision of the board of District 86 in 1974 to sell the same parcel; and the acquisition by Community Unit District 201, formed after 1968 of a parcel for use as a high school site in the southern portion of the Franciscans' property.
The original condemnation suit was filed on May 14, 1967. The Franciscans' traverse and motion to dismiss were denied on September 19, 1968, and the defendant filed an answer and cross-petition. Thereafter, the Franciscans filed supplemental interrogatories. In particular issue are Interrogatories 7, 8 and 9:
"INTERROGATORY NO. 7. Has Dr. Robert Ireland, during his tenure as superintendent of School District No. 86, petitioner herein, expressed in writing any opinion as to the necessity or want of necessity of taking this particular property.
INTERROGATORY NO. 8. If there has been any such expression by the said Dr. Robert Ireland, set forth:
(a) When it was made and where it was made and attach the statement itself if it be in a letter or the minutes of any School Board meeting embracing it.
INTERROGATORY NO. 9. If the said Dr. Robert Ireland made such an expression concerning the foregoing, state in whose possession the document is at the present time giving the name and present address of that person."
The petitioner objected to Interrogatory 7 on the ground that Dr. Ireland's opinion as to the necessity or want of necessity of taking had already been disposed of in the court's ruling on the traverse and motion to dismiss. On the Franciscans' motion an order directing the petitioner to answer Interrogatories 7, 8 and 9 was entered on September 8, 1969. Petitioner on September 19, 1969, answered Interrogatory 7 "No." (Dr. Ireland had resigned on June 30, 1969, and the answer was made by the assistant superintendent of schools.)
There was a trial on the merits of the petition to condemn, the jury failed to agree, and a mistrial was declared on November 4, 1969.
On March 12, 1970, the Franciscans filed a motion seeking the production of "Hinsdale High School District No. 86 report entitled `School Plant Planning' which was prepared by Superintendent Robert Ireland and the administrative staff of the School District and was presented to the Board at a public meeting in March 1969." The motion to produce was continued to March 16, 1970. On March 24, 1970, a judgment order in the nature of a consent judgment was entered in the condemnation action which included a waiver of the right of appeal and a provision for installment payments. The site purchased was approved in a District 86 referendum on April 10, 1971. It appears from the record that the motion to produce the 1969 "School Plant Planning"; report (hereinafter the "Ireland Report") was never ruled on by the trial court in the condemnation suit.
The Franciscans received and accepted final payment on July 15, 1971, and a final order vesting "fee simple title" in the County Board of School Trustees was entered on July 16, 1971.
On January 19, 1973, Community Unit District 201 filed a condemnation suit for the acquisition of a parcel of property in the southern part of the Franciscans' tract for a high school site. The condemnation petition was dismissed on April 6, 1973, and the Franciscans by agreement conveyed title of that tract to District 201. On July 16, 1974, the Board of District 86 passed a resolution to sell the northern site, but postponed the sale pending the disposition of this litigation.
The trial court entered judgment in favor of the County Board of School Trustees of Du Page County and against the Franciscans on November 3, 1975, denying the section 72 relief. On the same day the court ordered the chancery action dismissed for want of equity.
The Section 72 Proceedings (No. 76-19)
The section 72 petition proceeds on three general theories: (1) In the original condemnation action the condemnors fraudulently concealed evidence which would have supported the allegations in defendant's traverse and motion to dismiss that the property sought to be acquired was not necessary or convenient for the purposes for which it was sought to be taken and also that there was an excessive amount of property to be taken; *fn1 (2) prior to the making of the final payment pursuant to the judgment order in the condemnation suit, the condemnors were aware of plans to form Community Unit District 201, could be charged with knowledge that those forming 201 discussed with the Franciscans the possibility of trading the site already condemned by District 86 for a site in the southern portion of the Franciscans' property which would be more suitable for the purposes of District 201, knew that if District 201 were formed it would eliminate the need for a new high school building in the northern portion of District 86, but proceeded to make the final payment and obtain the final judgment order for the purpose of avoiding liability for Franciscans' sizable attorneys' fees; and (3) that the County Board of School Trustees of Du Page County, aware of the prior events and of the lack of necessity for two high school sites in the northern portion of District 86's former boundaries, while presiding over a contested hearing on division of assets between District 86 and District 201 failed to award the high school site acquired by District 86 to District 201 so that District 201 could exchange it for the site they desired in the southern portion of the Franciscans' property. In addition, in this court the Franciscans argue that an order vacating the condemnation decree under section 72 would have been proper because the District 86 Board's failure to adopt the resolution to acquire the site in an open session deprived the court of jurisdiction to hear the condemnation petition.
The section 72 petition was supported by affidavits and various documents. In addition, a hearing was had at which evidence was presented by both parties. At the hearing, Father Hegener testified for the Franciscans that they settled the original condemnation case a day or two before the second trial because they felt at the time that there was not a great deal of chance of winning the case. He also testified that when the Franciscans were first contacted by representatives of District 86, they had suggested property in their tract south of 35th Street as suitable for a high school site. Father Hegener said he was contacted in 1971 by persons who were members of both the Board of Elementary District 57 (which had substantially the same boundaries as the subsequently formed Community Unit District 201) and the "Committee of Ten" which was studying the formation of District 201. In April or May of 1971, they discussed the potential use of some of the Franciscan property as a school site for District 201. On July 14, 1971, Father Hegener met with several persons including the two board members he had spoken to earlier; James Manning, the Superintendent of District 57 and later Superintendent of District 201; and Donald Metta, who was a member of the boards of Districts 57 and 86. At this meeting the Franciscans' amenability to exchanging the northern site for a slightly smaller site south of 35th Street if 201 were formed and able to obtain the northern site in a division of assets between the district, was discussed. Father Hegener testified that he indicated that the Franciscans would be amendable to such an exchange.
Father Hegener also testified that he was not aware of the contents of Dr. Ireland's 1969 report prior to July 16, 1971. He said he first learned that it would be unlikely that District 201 would be able to obtain the northern site and exchange it for the southern site on September 28, 1972. Between the meeting in July 1971 and September 1972, he had no further formal discussions with representatives of District 57, the Committee of Ten, or District 201 concerning the proposed swap although there may have been some informal discussions in June 1972. He also testified that he had no communication with anyone from District 86 concerning the proposed swap prior to the final payment in 1971, nor prior to the settlement of the condemnation suit brought by District 201 in 1973, excepting with Mr. Metta, whom he had met in July 1971. Father Hegener said he did have communications, however, with representatives of District 201 prior to the settlement of the condemnation suit brought by that district. The Franciscans wrote to District 86 asking for the northern site back and offering to pay the amount of the condemnation judgment on December 6, 1972, and made similar offers in March and May of 1974.
The deposition of James Manning, the former Superintendent of District 57 and present Superintendent of District 201, was incorporated into the record of the hearing. At the hearing he identified a letter to the citizens of District 57 from the Committee of Ten dated July 13, 1971, and a press release dated July 16, 1971, which both indicated that a recent District 86 referendum demonstrated that the District could not build a high school on the northern site for some time. It appeared that the Committee of Ten had decided to defer filing of its unit petition until immediately after the sale by District 86 of the bonds necessary to purchase the northern site. Manning's deposition basically substantiated the testimony of Father Hegener. However, he stated that he did not tell the Franciscans in the summer of 1972 that the representatives of District 201 had begun to feel that it would not be possible or feasible to obtain the northern site in the division of assets. Manning refused to state that the mere filing of the petition to form a unit district on July 1, 1971, or even the formation of District 201 on June 6, 1972, would destroy the need for a high school of any size on the northern site. He seemed to believe that only the formation of the proposed Oak Brook Unit District would completely destroy the need for the northern site. He also indicated that he had never discussed the possible exchange of sites with anyone from District 86 and that Mr. Metta had never told him that he had had such a discussion.
Testimony was also adduced from the following persons associated with District 86: George R. Frederick, member of the board from April 1967 to April 1973 and president of the board from April 1971 to April 1973; George A. Jones, member of the board since September 1971 and its president since April 1973; Margaret O. Coffin, member of the board since April 1973, and member of a committee to study the feasibility of retaining and building on the northern site; ...