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Dept. of Transportation v. Drobnick

OPINION FILED NOVEMBER 21, 1977.

THE DEPARTMENT OF TRANSPORTATION, PLAINTIFF-APPELLEE,

v.

JEROME P. DROBNICK ET AL., DEFENDANTS-APPELLANTS. — (THE FIRST NATIONAL BANK OF WAUKEGAN, TRUSTEE, DEFENDANT.)



APPEAL from the Circuit Court of Lake County; the Hon. FRED H. GEIGER, the Hon. JOHN HUGHES, and the Hon. HARRY STROUSE, Judges, presiding.

MR. JUSTICE BOYLE DELIVERED THE OPINION OF THE COURT:

Rehearing denied December 29, 1977.

This appeal was taken from a condemnation proceeding by which the plaintiff-appellee, Department of Transportation, hereinafter referred to as the "plaintiff," took the entirety of two lots and a portion of a third. All three lots, located in an unincorporated portion of Lake County near Waukegan, Illinois, were owned by defendants-appellants, Jerome P. Drobnick, Kathleen A. Drobnick, Joseph J. Drobnick, Jr., Richard L. Drobnick, Eleanor A. Drobnick, Joseph J. Drobnick, Sr., hereinafter collectively referred to as the "defendants," and the First National Bank of Waukegan as trustee under Trust No. 616. A jury trial was held to determine the issue of just compensation. The defendants were awarded $6,500 and $4,750 for the two lots that were entirely taken and $3,850 for that portion of the third lot which was taken. The remainder of the third lot was found to have suffered no damages.

The defendants have appealed, alleging that the trial court committed reversible error by: (1) conducting two portions of the proceedings without a court reporter; (2) striking the documents offered by defense counsel as bystanders' reports; (3) refusing to permit the defendant to offer more than five comparable sales; (4) denying defendants' motion for a mistrial after an out-of-court conversation between a juror and a witness; (5) precluding a defense appraisal witness from testifying as to the reasonable probability of rezoning; and (6) permitting a map on which witnesses had marked the prices of comparables to go to the jury room. The defendants also claim that the judges of the 19th Judicial Circuit improperly sat en banc. We find the defendants' positions to be without merit and accordingly affirm the judgment of the circuit court of Lake County.

On April 15, 1975, the plaintiff filed a petition to condemn three lots owned by the defendants. The lots were known as tract 1 of parcel 7, tract 2 of parcel 7, and parcel 18. All of tracts 1 and 2 of parcel 7 were to be taken, but only a portion of parcel 18 was to be taken.

After various pretrial motions were disposed of by different judges, a trial to determine just compensation began on July 28, 1975. In the presentation of the defense case, defense counsel offered the testimony of three appraisal witnesses. Their appraisals ranged from $24,000 to $85,000 for the various lots and estimated the damage to the remainder of parcel 18 from $0.00 to $9,000. Only one of the defendants' appraisal witnesses testified that he considered the probability of rezoning in arriving at his appraisal, but defense counsel did not question that appraisal witness on the topic of the probability of rezoning.

During the course of the trial, there was a conference in the judge's chambers on comparables. This conference was not transcribed, and no objections to the lack of a court reporter were raised. After this conference, Joseph J. Drobnick, Sr., took the stand and testified as to one comparable. He also tried to testify as to two others, but the plaintiff objected on the grounds that they had not been approved by the trial court as comparables. The trial court sustained the objection. As to the one comparable Mr. Drobnick did testify to, on cross-examination he was asked if in fact it was comparable. He replied that it was not. That comparable was then stricken. The defendants did not introduce into evidence any other comparables nor did they make an offer of proof of any other comparables.

The plaintiff offered the testimony of three appraisal witnesses. They placed a value on the lots to be taken that ranged from $4,100 to $9,820. In reference to parcel 18, the values they assigned to the part to be taken ranged from $3,000 to $3,375, and all three appraisers agreed that there were no damages to the remainder. Two of the plaintiff's appraisal witnesses testified that they considered the probability of rezoning in arriving at their estimates of the worth of the properties involved. Those two appraisal witnesses were allowed to testify as to the probability of rezoning.

At the close of plaintiff's case, a conference was held outside the presence of the jury. At that time the defendants complained that they had not been permitted to introduce all their comparables. The trial court noted that the defendants were permitted to introduce evidence on six comparables, but offered evidence on only one. Again, the defendants did not offer any further comparables, nor did they attempt to make an offer of proof.

After the above conference the court was informed that there had been a discussion between a juror and a witness outside the courtroom. The court questioned the juror, who informed the court that he and the witness had had a brief, silly conversation concerning Chinese restaurants and the use of chopsticks. The juror said his conversation would not prejudice him in his consideration of the case. Thereupon the trial court denied the defendants' motion for a mistrial.

The final arguments were not recorded. However, there is no record of any objections to this failure. The jury returned a verdict that found just compensation to be $4,750 for tract 1 of parcel 7, $6,500 for tract 2 of parcel 7, and $3,850 for that portion of parcel 18 which was taken, with no damages to the remainder.

On August 13, 1975, Judge Harry Strouse granted plaintiff leave to file with the court the proposed final judgment order and to fix a date for a hearing to be held before Judge John Hughes, who had presided at the trial. Judge Hughes entered the final judgment order on August 25, 1975.

In the interval between the rendering of the verdict and the entry of the final judgment order, the defendants filed with the clerk two documents entitled "Mark's Report of the Proceedings" and "Mark's Additional Report of the Proceedings." Evidently these documents were intended to be bystander's reports of those portions of the proceedings that took place outside the ...


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