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09/28/89 the Illinois State Toll v. Grand Mandarin Restaurant

September 28, 1989

THE ILLINOIS STATE TOLL HIGHWAY AUTHORITY, PLAINTIFF-APPELLANT

v.

GRAND MANDARIN RESTAURANT, INC., ET AL., DEFENDANTS-APPELLEES (BANK OF LISLE ET AL., DEFENDANTS)



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

544 N.E.2d 1145, 189 Ill. App. 3d 355, 136 Ill. Dec. 370 1989.IL.1557

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

APPELLATE Judges:

JUSTICE REINHARD delivered the opinion of the court. UNVERZAGT, P.J., and McLAREN, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE REINHARD

Plaintiff, the Illinois State Toll Highway Authority, filed a condemnation petition in the circuit court of Du Page County seeking to condemn a parcel of improved property containing a restaurant and banquet facility, naming as defendants Grand Mandarin Restaurant, Inc., Frank Lee, Bank of Lisle as trustee under trust No. 85--35, Bank of Lisle, Chicago Title and Trust Company as trustee under trust No. 52709, American National Bank and Trust Company of Chicago as trustee under trust No. 54883, and certain unknown owners. A default order against unknown owners, Bank of Lisle, Chicago Title and Trust Company as trustee under trust No. 52709, and American National Bank and Trust Company of Chicago as trustee under trust No. 54883 was entered, and those defendants are no longer parties to this action. A jury awarded the remaining defendants $875,000 for the taking of the subject property.

Plaintiff raises four issues on appeal: (1) whether the trial court abused its discretion in refusing to admit a video tape of the interior and exterior of defendants' restaurant and banquet facility; (2) whether the trial court abused its discretion in excluding evidence of the 1982 purchase price of the subject property paid by defendants; (3) whether it was an abuse of discretion to exclude evidence of a written 10-year lease agreement and an oral lease agreement between defendants and the prior owner of the subject property; and (4) whether the trial court abused its discretion in refusing to admit in rebuttal certified copies of a recorded deed and real estate transfer tax declaration regarding the 1987 sale of a piece of property when defendants' expert used the 1982 sale of the same property in valuing the subject property.

We set forth only those facts necessary to dispose of the issues raised on appeal. Plaintiff filed a complaint for condemnation, on August 19, 1987, seeking to condemn a parcel of property and the improvements thereon located at 400 Ogden Avenue in Du Page County. The subject property consists of approximately 61,300 square feet upon which is located a restaurant with a five-room apartment on the second floor and a second, detached building which houses a banquet facility. Plaintiff subsequently filed a motion under the quick-take provisions of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, pars. 7-103, 7-104, 7-105), and on September 9, 1987, the circuit court ordered just compensation, pursuant to the quick-take procedure, of $770,000. On September 16, 1987, the circuit court entered an order vesting title in the subject property in plaintiff and authorizing plaintiff's immediate possession of the property except for the two structures thereon. The court further ordered defendants to pay $192.50 per day rent for each day they remained in possession of the two buildings after October 1, 1987.

On September 23, 1987, defendants petitioned for withdrawal of preliminary compensation, and the circuit court entered an order withdrawing the preliminary award. A jury trial commenced on September 23, 1988.

Prior to trial, defendants made several motions in limine. The first sought to bar plaintiff from introducing evidence of written and oral lease agreements for the two buildings entered into by defendant Frank Lee in 1977, and the second sought to prohibit introduction into evidence of the 1982 purchase price of the property. Both motions were granted. Finally, defendants moved in limine to prohibit introduction of a video tape of the restaurant and banquet hall taken on October 5, 1987, a date after which various equipment had been removed from the premises and after the valuation date of August 19, 1987. The circuit court also granted that motion after reviewing the video.

At trial, both parties offered expert opinion evidence of the value of the subject property. Plaintiff's two experts valued the property at $370,000 and $395,000. Defendants' two experts valued the property at $900,000 and $950,000.

Defendants' expert, William Sullivan, relied in part on the 1982 sale of a comparable property known as the Track 29 Restaurant in valuing the subject property. On rebuttal, plaintiff sought to introduce certified copies of a deed and real estate transfer tax declaration which were filed as a result of the sale of the Track 29 property in 1987, both of which the trial court refused to admit.

Plaintiff first contends that the trial court abused its discretion in refusing to admit a 41-minute video tape which, in substantial part, is of the interior of defendants' restaurant and banquet hall taken after the valuation date and after defendants had removed personal property and fixtures from the restaurant. Plaintiff further argues that, because defendants' video, which was admitted, did not show the entire interior of the restaurant, it was an abuse of discretion to not admit its video, particularly where a jury view was no longer possible due to destruction of the property. Finally, plaintiff argues that it would have been proper for the jury to have viewed the property, had the buildings not been demolished prior to trial, and therefore it was also proper for the jury to have viewed the October 5, 1987, video tape.

Generally, the admission of photographic evidence is within the sound discretion of the trial court and will not be reversed absent an abuse of discretion. (Schaffner v. Chicago & North Western Transportation Co. (1989), 129 Ill. 2d 1, 18, 541 N.E.2d 643; Barreto v. City of Waukegan (1985), 133 Ill. App. 3d 119, 131-32, 478 N.E.2d 581.) The fact that photographic evidence portrays something under conditions not precisely the same as those at the time of the occurrence does not necessarily render it inadmissible, so long as the jury is not misled. (Saldana v. Wirtz Cartage Co. (1978), 74 Ill. 2d 379, 391, 385 N.E.2d 664.) Furthermore, in a condemnation case, the mere fact that a photograph was taken after the valuation date does not necessarily make it inadmissible. (Lake County Forest Preserve District v. Vernon Hills Development Corp. (1980), 85 Ill. App. 3d 241, 244-45, 406 N.E.2d 611.) The necessary inquiry is whether the photographs of the subject property accurately portray the conditions of the land prior to the valuation date. (Vernon Hills Development Corp., 85 Ill. App. 3d at 245, 406 N.E.2d at 614.) While photographs of the appearance and condition of land or other inanimate objects taken after a material change in appearance and condition are generally inadmissible, there is no requirement that the situation or condition must be precisely the same. (Vernon Hills ...


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