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06/10/87 James R. Kendle Et Al., v. the Village of Downers

June 10, 1987

JAMES R. KENDLE ET AL., PLAINTIFFS-APPELLANTS

v.

THE VILLAGE OF DOWNERS GROVE ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

509 N.E.2d 723, 156 Ill. App. 3d 545, 109 Ill. Dec. 62 1987.IL.793

Appeal from the Circuit Court of Du Page County; the Hon. John S. Teschner, Judge, presiding.

APPELLATE Judges:

JUSTICE REINHARD delivered the opinion of the court. UNVERZAGT and NASH, JJ. concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE REINHARD

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 Du Page 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:

"START has pledged it's financial support to JIM and LOIS KENDLE, who are property owners in Highland Woods refusing to sell their home to Mappa, and are suing Mappa and the Village of Downers Grove. Their lawsuit is our lawsuit and by supporting the Kendles we are actively preventing Mappa from carrying out his intentions to develop the property. With luck, this lawsuit could go on for years."

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 ...


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