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10/18/94 SOUTHERN ILLINOIS AIRPORT AUTHORITY v.

October 18, 1994

SOUTHERN ILLINOIS AIRPORT AUTHORITY, A MUNICIPAL CORPORATION, PLAINTIFF-APPELLANT,
v.
PAUL E. SMITH, DEFENDANT-APPELLEE, AND MARILYN SUE SMITH, DAN VIGNIERI, PERRY SMITH, JAY WILSEY, PATRICK COWSERT, AND UNKNOWN OTHERS, DEFENDANTS.



Appeal from the Circuit Court of Jackson County. No. 91-ED-1. Honorable William G. Schwartz, Judge Presiding.

Petition for Leave to Appeal Denied February 1, 1995.

Lewis, Chapman, Goldenhersh

The opinion of the court was delivered by: Lewis

PRESIDING JUSTICE LEWIS delivered the opinion of the court:

Southern Illinois Airport Authority (SIAA) appeals from an order by the trial court setting aside a jury verdict and ordering a new trial for the failure of SIAA to disclose in discovery a comparable sale of property used by SIAA in cross-examination of an adverse valuation witness. We reverse.

SIAA is a municipal corporation that owns and operates the Southern Illinois Airport located in Jackson County. SIAA exercised its right to acquire through eminent domain 6.12 acres owned by Paul Smith. In the ensuing jury trial on October 14, 1992, the jury found that the fair cash market value of the Smith property was $95,000 and returned a verdict in this amount. On March 22, 1993, the trial court entered an order setting aside the jury's verdict, vacating the judgment, and ordering a new trial.

The pivotal issue at trial concerned the highest and best use of the property. SIAA called several witnesses to testify that the airport and the defendant's property were located five or six miles from Carbondale, on a back road that was several miles off the main highways, Routes 13 and 51; that there had been no commercial development since 1968; that four commercial airlines had ceased operation since 1984; that no commercial airline was operating on the date the complaint was filed, May 3, 1991; and that the surrounding land was primarily used for agricultural production.

SIAA's expert, Glenn Grosse, a real estate appraiser, testified that the highest and best use of the Smith property was residential, its existing use, and that it had a fair market value of $83,500. Paul Smith, the owner, testified that the highest and best use of the property was commercial and that the fair cash market value was $250,000. Smith's valuation witness, Aloise Schwegel, a real estate broker, testified that the highest and best use was commercial, with a fair market value of $150,000.

During the cross-examination of Smith, SIAA's counsel asked a few questions about a 1990 sale of land called the Crane property, a 40-acre tract located across the road from the Carbondale public golf course that was under construction and about a mile from the Smith property. Smith had testified during direct examination that he had used comparable sales in the vicinity in placing a value on his land. Smith admitted on cross-examination that the Crane property was similar to his property, because of the nearness to the airport and the golf course. SIAA had the deed and real-estate-tax-declaration forms marked as exhibits, but they were not shown to the jury. The court recessed for the day and reconvened the next morning.

Schwegel was then called to testify by Smith, and on cross-examination, Schwegel was questioned, over Smith's objection, regarding the 1990 sale of the Crane property. The sale price was $60,000, or $1,500 an acre. Schwegel had testified on direct that he reviewed sales of property from the courthouse records and that he used the records of deeds and tax-declaration sheets in his business. He further testified on direct examination that the proposed golf course was the "primary factor in [his] determination" and that it would have a "great deal of effects [sic]" on the Smith property. The Crane property is located on the frontage road right across the road from the golf course and is comprised of acreage with a residence.

Following the verdict, Smith filed a posttrial motion in which he alleged, among other things, that the court erred in allowing SIAA to use the Crane sale in cross-examination because this sale was not disclosed to Smith during discovery. Attached to Smith's posttrial motion was an affidavit of Barry Wesley which stated that Wesley's parents purchased the Crane property for the purpose of preventing a developer from acquiring it and with the intention of giving the Crane property to Barry Wesley in the future, because Wesley owned the adjoining tract. The affidavit concluded that the purchase was an assemblage sale, which combines adjoining lots into a single lot. After a hearing on Smith's posttrial motion, the trial court entered an order setting aside the jury's verdict, vacating the judgment, and ordering a new trial. The court stated:

"There's no doubt in this court's mind that the Crane to Wesley sale had the potential of having a significant impact upon the jury * * *.

A reviewing court will not reverse the order granting a new trial unless it is shown to be an abuse of discretion. ( Klatt v. Commonwealth Edison Co. (1965), 33 Ill. 2d 481, 494, 211 N.E.2d 720, 727.) Smith argues that the trial court's decision to grant a new trial was not an abuse of discretion because SIAA did not disclose the Crane sale to Smith prior to trial and the use of the deed and the transfer declaration sheet evidencing said sale in cross-examining the defendant's witnesses was prejudicial error. Smith contends that the Crane sale documents should have been produced during discovery because he filed (1) a request to produce documents, (2) a notice of deposition of Gary Shafer requesting documents, (3) a Supreme Court Rule 213(e) supplemental interrogatory (134 Ill. 2d R. 213(e)), and (4) a Supreme Court Rule 237 notice to appear and produce (134 Ill. 2d R. 237). SIAA disputes Crane's contention, arguing that disclosure of the Crane sale documents was not necessary because the documents did not fall within the parameters of Smith's discovery requests.

Smith argues that his June 6, 1991, request for production of documents, notice of deposition, supplemental interrogatory, and Rule 237 notice were sufficient to advise SIAA to produce the Crane sale documents. Because each of Smith's discovery requests refers to the materials requested in his initial request to produce, we will take a closer look at ...


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