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Chicago v. Am. Nat'l Bank & Trust Co.

OPINION FILED AUGUST 19, 1986.

THE CITY OF CHICAGO, PLAINTIFF-APPELLEE,

v.

AMERICAN NATIONAL BANK & TRUST COMPANY OF CHICAGO, AS TRUSTEE, ET AL., DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Cook County; the Hon. Benjamin S. Mackoff, Judge, presiding.

JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:

Defendants, owners of an adult bookstore, are appealing from the circuit court's holding that they were estopped from filing a traverse or otherwise contesting the entry of a proposed judgment order that had been signed by their previous attorney. The result of the order was that plaintiff city of Chicago's suit for condemnation of defendants' commercial premises was successful.

In 1977, the city of Chicago enacted an Adult Use Ordinance that restricts the location of adult bookstores to areas of the city that are zoned C-2. The premises formerly occupied by defendant, 400 South State Street, was in an area zoned B6-7. Adam Bourgeois, who then represented the defendants, sought to establish that the adult bookstore at 400 South State was a nonconforming, pre-existing use and thus entitled to continued operation. He filed suit in Federal district court and won his case. Sheridan Books v. City of Chicago, No. 78 C 2368 (N.D. Ill.).

In the meantime, the city, as part of the South Loop Redevelopment Project, began condemnation proceedings and acquired title to the block that included 400 South State. Defendants obtained from Judge James C. Murray an order that authorized relocation of their business to 350 South State. After defendants bought the building at 350 South State, the city refused to issue permits for an adult bookstore at that location. The city also moved to vacate the court's earlier order allowing defendants to locate at 350 South State on the ground that the court lacked jurisdiction.

The parties then entered into a proposed judgment order, in which the city agreed to enter the necessary permits for defendants' new location. The city also agreed to a change in the Federal court order to show defendants' address as 350 South State. In return, defendants agreed to sell their building at 350 South State to the city for $235,000. This order was entered on February 25, 1983, and allowed defendants to operate at 350 South State until December 31, 1984.

On February 16, 1984, the city filed an action to condemn the property at 350 South State. Defendants' present counsel requested leave to file a traverse. Counsel argued, among other things, that defendants had entered into the proposed judgment order under economic duress.

Hearings were held on May 15 and June 11, 1984. When Judge Murray was appointed as presiding judge of the chancery division, the case was transferred to Judge Benjamin Mackoff. He ruled on August 27, 1985, that defendants were estopped from contesting the condemnation proceedings. Defendants' post-trial motions were denied, and they filed this appeal.

The proposed judgment order, which was incorporated into the trial court's ruling, provides in relevant part:

"To the owner or owners of and party or parties interested in the property legally described as follows: [description] as full compensation to the owner or owners of and party or parties interested in the aforesaid real estate, for the acquisition of fee simple title to said property, for the improvements thereof and all private interests in public roads, streets and alleys which abut said real property, the sum of TWO HUNDRED THIRTY FIVE THOUSAND and NO/100 ($235,000) DOLLARS.

IT IS FURTHER ORDERED AND ADJUDGED, pursuant to agreement of the parties that the award of just compensation for the acquisition of the property herein shall be paid to the County Treasurer of Cook County, Illinois for the use and benefit of the owner * * * on or before December 31, 1985 but in no event prior to December 31, 1984, without payment of statutory interest, said statutory interest being waived.

IT IS FURTHER ORDERED AND ADJUDGED, pursuant to agreement of the parties that Petitioner [the City] shall have the right to dismiss this proceeding without prejudice at its sole option at any time prior to deposit of the final award and, that in event of such abandonment, the parties waive any and all rights each against the other arising out of this proceeding including Defendant's rights to reimbursement under the Illinois Code of Civil Procedure, Section 7-123(a). * * *"

This agreement was signed by Adam Bourgeois, over the line "Attorney for Defendant," and Earl J. Neal for the city. It was not filed in court or signed by the judge.

• 1 Defendants argue that the condemnation proceeding is void because the city failed to make a prima facie case that public necessity required that it take defendant's property in an eminent domain proceeding. According to defendants, a showing of public purpose is necessary for the court to acquire jurisdiction of this case. It is true that in order to exercise the power of eminent domain, the property must be taken for a public use (17 Ill. L. & Prac. Eminent Domain sec. 4, at 183 (1956)), but jurisdiction, in the sense that it involves the power of a court to hear and adjudicate a proceeding, is not involved.

• 2 Defendants argue further that because they were not allowed to file a traverse, the city did not have to make a prima facie case that its taking was necessitated by the public interest. The government is required to present a prima facie showing of reasonable public necessity only in response to the property owner's traverse. (Department of Transportation v. Keller (1984), 127 Ill. App.3d 976, 978, 469 N.E.2d 262.) Here, ...


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