dissenting:
I am in agreement with all portions of the majority opinion, save the last, which holds it to have been harmless error when the landowner was permitted to open and close and go forward with the evidence. In my opinion this error was manifestly unfair and prejudicial and cannot be viewed as harmless. Furthermore, the premise that serves as the basis for the conclusion of the majority that the error regarding the right to open and close is without foundation in the record; in fact, it is contraindicated. I therefore respectfully dissent.
The supreme court case which controls the case under consideration is Department of Business and Economic Development v. Brummel, 52 Ill. 2d 538, 288 N.E.2d 392. It is cited, but not followed, by the majority. In Brummel the court stated:
“There is no reason why the rule announced in McReynolds and South Park [McReynolds v. Burlington & Ohio River Ry. Co., 106 Ill. 152; South Park Commissioners v. Trustees of Schools, 107 Ill. 489, cases establishing the rule in Illinois that the condemnor has the burden of going forward with the evidence and the right to open and close argument] should not continue in condemnation cases where there has been no vesting of title in the condemnor under the quick-take statute and where there has been no cross-petition for damages to property not taken.
In these situations the condemnor should open and close at all stages.” (Emphasis added.) 52 Ill. 2d at 542, 288 N.E.2d at 394-95.
Any practicing trial lawyer knows that the technique employed in prosecuting a lawsuit differs vastly from that employed in defending one. Metaphorically stated, it is a matter of either thrust or parry. The purpose, direction and force of the contrasting actions are diametrically opposed.
In the Brummel case it was the landowner who was required to switch roles and assume an offensive position when he had prepared his case on the assumption he would be defending. Brummel pointed out the prejudice resulting from a role-switch in the following language:
“On the day of the trial he learned that he must assume the burden of going forward with evidence as to the value of the land. It is this unexpected switch in the role which the landowner was required to play, from one who could assume a defensive position to one who is compelled to go forward with evidence of value, which we must consider prejudicial. This is especially so since he had prepared his case for the former role.” (Emphasis added.) 52 Ill. 2d at 541, 288 N.E.2d at 394.
The court found that the error was not simply “a single erroneous ruling of the trial court the effect of which is readily discernible, but was of such magnitude as to reverse the entire presentation of the case.” (52 Ill. 2d at 541, 288 N.E.2d at 394.) I am unable to see any reason why the Department would be any less prejudiced by being required to switch roles than would a landowner in the same situation. They appeared for trial, prepared to carry their burden of proof by proceeding with the evidence, making opening and closing arguments and being the party expected to go forward with the trial. Instead, as the case was about to go to trial, they were told they would not have the right to open and close and go forward with the evidence. They were thus thrust into a defensive posture from which they had to carry the burden of proof in the case; a crippling and highly prejudicial shift.
I can find no Illinois case which has held that the denial to the party litigant to whom it belongs of the right to open and close can never be so prejudicial as to require a new trial. On the contrary, it has been held that the right to open and close is a substantial right which does not rest merely in the discretion of the trial judge. “In a trial before a jury, where the pivotal fact is in sharp dispute, the advantage of opening and closing the evidence and arguments becomes one controlled by rules of law defining rights and is not left to the discretion of the judge.” Liptak v. Security Benefit Association, 350 Ill. 614, 619, 183 N.E. 564.
I am in sharp disagreement with that view the majority takes of the evidence in the case that leads them to discount and reject the testimony of the Department’s witnesses that the highest and best use of the 13.78 acres in question was agricultural. That testimony they term “clearly erroneous.” They state that the 13.78 acres condemned in this proceeding mostly bordered the interchange, and, therefore, must have been a large part of the potentially commercial land to which the Department’s witnesses referred.
The latter reference is, of course, true. The frontage property is the commercial property — virtually all of the 13.78 acres taken. What the majority overlooks is that after the taking the Roehrigs still own the same amount of frontage property. Although the commercial (frontage) property has been relocated somewhat by this second taking, the commercial property remains intact as such — it is 13.78 acres of the farmland remaining that has been shuffled from the scene. The theory of the Department that the highest and best use of the land taken was for farming is not, in my view, “clearly erroneous” and cannot be so easily discounted as in the majority opinion. There was a distinct conflict between two equally tenable theories, and the allocation of the advantage of opening and closing the evidence and the arguments may well have been a deciding factor in the case. Therefore, I would reverse for a new trial.