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Johnson v. Compost Porducts

June 13, 2000

DOLORES JOHNSON, MARK JOHNSON, LARRY LARSON, CONDON FARMS, INC., RUSS HINTERLONG, STEVEN GRAVLEY, DALE BOWEN, DAVID CHELSEN, AND LORI CHELSEN, PLAINTIFFS-APPELLEES,
v.
COMPOST PRODUCTS, INC., DEFENDANT-APPELLANT ELIZABETH A. BATES, CONTEMNOR-APPELLANT; JIM WHALEN, BEVERLY HOOK, DARIEN HOOK, PATRICIA J. KOMES, MILTON E. HOOK, MARINA ABBOTT, DAVID ELMORE, HUGH MCAULEY, FRANCES GRAVLEY, KAY ELMORE, EARL EIKE, RALPH DANNENBURG, MICHAEL KERRY, AND DAVID VERBARG, PLAINTIFFS; WEST SUBURBAN BANK, AS TRUSTEE, UNDER TRUST NO. 3344, DEFENDANT).
DOLORES JOHNSON, MARK JOHNSON, LARRY LARSON, CONDON FARMS, INC., RUSS HINTERLONG, STEVEN GRAVLEY, DALE BOWEN, DAVID CHELSEN, AND LORI CHELSEN, PLAINTIFFS-APPELLEES,
v.
COMPOST PRODUCTS, INC., DEFENDANTS-APPELLANTS (JIM WHALEN, BEVERLY HOOK, DARIEN HOOK, PATRICIA J. KOMES, MILTON E. HOOK, MARINA ABBOTT, DAVID ELMORE, HUGH MCAULEY, FRANCES GRAVLEY, KAY ELMORE, EARL EIKE, RALPH DANNENBURG, MICHAEL KERRY, AND DAVID VERBARG, PLAINTIFFS; WEST SUBURBAN BANK, AS TRUSTEE, UNDER TRUST NO. 3344, DEFENDANT).



Appeal from the Circuit Court of Kendall County. No. 97--CH--32

Honorable Thomas E. Hogan, Judge, Presiding.

JUSTICE HUTCHINSON delivered the opinion of the court:

In this consolidated appeal, contemnor, Elizabeth A. Bates, a licensed attorney representing defendant, Compost Products, Inc., appeals from an order of the circuit court of Kendall County finding her in direct criminal contempt of court and imposing a $50 fine. Defendant appeals from the trial court's finding that defendant's mushroom composting business constituted a private nuisance and its subsequent entry of an injunction. Plaintiffs to this appeal include Dolores Johnson, Mark Johnson, Larry Larson, Condon Farms, Inc., Russ Hinterlong, Steven Gravley, Dale Bowen, David Chelsen, and Lori Chelsen. We reverse and remand.

In April 1997 plaintiffs, Dolores Johnson, Mark Johnson, Larry Larson, Jim Whalen, Condon Farms, Inc., Beverly Hook, Darien Hook, Russ Hinterlong, Patricia J. Komes, Milton E. Hook, Marina Abbott, David Elmore, Hugh McAuley, Frances Gravley, Kay Elmore, Steven Gravley, Dale Bowen, Earl Eike, Ralph Dannenberg, Michael Kerry, David Verbarg, David Chelsen, and Lori Chelsen, filed a complaint in the circuit court of Kendall County. Plaintiffs also named West Suburban Bank as a defendant; however, it is not a party to this appeal. Plaintiffs' complaint alleged that the operation of defendant's business, a compost farm, "results in an emission of a strong offensive order which has a serious detrimental effect upon the life and enjoyment" of plaintiffs. In their complaint, plaintiffs sought a permanent injunction restraining defendant from "permitting the emission of noxious and offensive odors."

On June 20, 1997, defendant filed a motion to transfer venue, pursuant to section 2--104 of the Code of Civil Procedure (the Code) (735 ILCS 5/2--104 (West 1996)), and attached the affidavit of David Woldman, defendant's president. Defendant stated that, because it is a corporation with its registered office located in Du Page County and its compost business located in La Salle County, it is a resident of either Du Page or La Salle County but not Kendall County. Defendant also contended that the alleged "transaction" out of which plaintiffs' cause of action arose was located at the site of its compost operation in La Salle County. Defendant concluded that, because no defendant resided in Kendall County and no transaction, or some part thereof, occurred in Kendall County, venue in Kendall County was improper. Defendant requested that the matter be transferred to the circuit court of La Salle County or another appropriate venue. On June 27, 1997, the trial court denied defendant's motion to transfer venue.

Following the trial court's denial of defendant's motion to transfer venue, defendant moved to transfer venue based on the doctrine of forum non conveniens (735 ILCS 5/2--101 (West 1996)). The trial court denied defendant's motion. In January 1998 defendant moved to dismiss plaintiffs' complaint pursuant to section 2--619(a)(9) of the Code (735 ILCS 5/2--619(a)(9) (West 1998)), alleging that plaintiffs' cause of action was barred by the Farm Nuisance Suit Act (740 ILCS 70/0.01 et seq. (West 1998)). In May 1998 the trial court denied defendant's motion to dismiss.

Thereafter, defendant filed its answer, affirmative defenses, and counterclaim. Plaintiffs filed their answer, and the cause was set for trial. On June 21, 1999, the trial commenced. After plaintiffs' counsel completed the direct examination of their first witness, the trial court and counsel engaged in the following colloquy:

"MR. INGEMUNSON [Plaintiffs' attorney]: I have no further questions, Your Honor.

THE COURT: Cross?

Q. [Mr. Bargiel, defense attorney:] I want to show you what's been marked as Plaintiffs' Exhibit--may I approach the witness?

THE COURT: If your legs are working, yes. If you ask that question again, I'm going to hold you in contempt and fine you 50 bucks; all right?

MR. BARGIEL: Okay."

On June 22, 1999, during the next day's afternoon session, the trial court and defendant's counsel ...


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