text:
    DONALD MICHALEK et al., Plaintiffs-Appellants, v. THE VILLAGE OF MIDLOTHIAN et al., Defendants-Appellees.
    First District (5th Division)
    No. 82—2263
    Opinion filed July 22, 1983.

      Vincent J. Getzendanner, Jr., and David A. Upah, both of Madigan, Stanner, Kahn, Bonifacic & Getzendanner, of Chicago, for appellants.
    John R. Sullivan, of Midlothian, for appellees.
   JUSTICE SULLIVAN

delivered the opinion of the court:

This appeal is from a judgment for defendants in an action to declare a zoning classification of the village of Midlothian (Village) unreasonable and invalid as applied to plaintiffs’ property. Plaintiffs contend that (1) the findings of the trial court are against the manifest weight of the evidence; and (2) the trial court erred in admitting evidence of the Village building code, fire code, and subdivisions ordinances.

Plaintiffs own a vacant four-acre tract of land, currently zoned for single-family use, northwest of the intersection of 147th Street and Cicero Avenue in the Village. It is bounded on the east by Lamon Avenue, on the south by 145th Street, on the west by the Midlothian Country Club (Club) and on the north by a gravel driveway leading to a home situated opposite the northwest corner of the subject property. There are no streets north or west of the property, although there is a 33-foot right-of-way dedicated for Lavergne Avenue along its western boundary with the Club. Lamon Avenue is a fully developed street on a 66-foot- right-of-way from 147th to 145th Street, but narrows to 16 to 18 feet of pavement on a 33-foot dedication abutting the eastern boundary of the subject property. Similarly, 145th Street is a fully improved roadway for one block between Cicero and Lamon, but narrows to 15 feet of pavement on a 33-foot right-of-way along the south line of plaintiffs’ property. All of the property between Lamon Avenue and the Club, and from 147th to 143rd Streets, is zoned for single-family use. Property on the east side of Lamon Avenue, from 147th to 144th Streets, is zoned for multiple-family use and abuts property along Cicero Avenue zoned for commercial use. A triangular, 17-acre portion of the Club is zoned for multiple-family use, and the southeast portion of that area adjoins plaintiffs’ property on the west.

On May 3, 1980, plaintiffs petitioned the Village for rezoning of their property for multiple-family use. After a hearing, the Village zoning board recommended that rezoning be denied, and the Village board adopted that recommendation. Plaintiffs then filed this action seeking a declaration that the present zoning is arbitrary and unreasonable in that it bears no reasonable relation to public health, safety, or welfare.

At trial, Donald Michalek testified that his parents purchased the subject property in 1954. Three years later, his mother built a home on the southeast corner of the property which is currently owned and occupied by his brother and is not part of the subject property. In 1973, he and his brother inherited the property, which has always been zoned for single-family use. He purchased his brother’s interest in 1979 with the intention of developing the property for multiple-family use. The land was never offered or advertised for sale or listed with a broker, and no offers were received to develop it. At the time he filed for rezoning, the property to the east and west was vacant but zoned for multiple-family use. There are several six- and 12-unit apartment buildings southeast of the property on the east side of Lamon Avenue, bordered by the commercial property along Cicero. He acknowledged that the development plan attached to his complaint was not submitted to the Village when rezoning was requested. The streets east and south of the subject property are half-streets, but his proposed plan has no dedication to allow completion of Lamon or 145th Street or to construct a road north of the property. A number of new homes have been built in recent years south of 145th Street between Lavergne and Lamon. All of the land surrounding the subject property is currently vacant or developed for single-family use.

Rolf Campbell, an expert in land planning and zoning, testified that he examined the area in early 1981 at plaintiffs’ request to determine the suitability of the subject property for multiple-family development. The existing streets south and east of the property and the dedication for the right-of-way on the west are half-dedications; only the west dedication was taken from the subject property. The portion of the Club adjacent to the plaintiffs’ property is zoned for multiple-family use, as is the property to the east. The area south of the subject property is developed for single-family use, but the majority of the property to the north, although zoned for residential use, is vacant, and an area northeast of the subject property was recently rezoned from single-family to multiple-family use. The subject property as well as the property to the north should be rezoned, forming a corridor of multiple-family zoning from Cicero to the Club parcel. The character of the area is a mixture of commercial, multiple-family, and single-family use, with the site in question most closely related in proximity and condition to the multiple-family trend of development. Although the property is suitable for single-family development, it would be underutilized, since such development would result in only 12 to 16 living units. The major trend in the area is multiple-family in both zoning and use, as evidenced by the fact that more multiple-family than single-family units have been constructed recently, and the demand for multiple-family housing in the general area is currently stronger than that for single-family. Plaintiffs plan to construct seven four-story buildings with parking underneath. The buildings would face inward to a central landscaped area, and open parking would be provided on the perimeter of the buildings in order to put additional space between the apartments and the existing single-family residences to the south. Each building would have 16 units for a total of 112, or 27 units per acre, which is much less than the 48 per acre allowed by multiple-family zoning but is still considered medium to high density. Access to the buildings would be at the northeast corner from Lamon and the southwest corner from Lavergne. To protect the character of the homes on the south, 145th Street should remain a half-street, and the subject property bermed and landscaped along its southern boundary. The other streets in the area are adequate as they exist to handle the traffic generated by the proposed plan. Under this plan, 55% of the property will consist of green areas, while 25% will be covered by buildings and 20% by open parking and drives. A tax and school impact study indicates that the proposed development will generate $15,000 in tax revenues for the Village and $143,000 for the area schools, which exceeds the cost of educating children expected to reside in the development. The highest and best use of the subject property would be development for multiple-family use substantially in accord with the proposed plan.

Campbell admitted that he did not know whether the plan was in compliance with the Village building code, or if the water and sewer systems were adequate for the development proposed. Unless roads in the area are further developed, the only feasible access to the property is at the northeast corner. In determining the trend of development, he did not examine building permits recently issued by the Village, but based his opinion on the apparent age of buildings in the area. The multiple-family zoning on the east side of Lamon forms a buffer between the commercial use on Cicero and the single-family area, which is a standard zoning pattern. The parking areas of the proposed development will have lights, and headlights from cars traveling north through the parking lot will shine on the existing home situated on the northwest boundary of the subject property. Single-family zoning for the property is not unreasonable, but that is not its highest and best use. In fact, single-family zoning is reasonable in all ways, but rezoning would be more profitable for the owner and generate more taxes for the Village and schools. Campbell admitted that there is a need for single-family residences in the area, and existing residences might be more marketable if no rezoning occurs. In the proposed plan, one building will be five feet from the lot line of the single-family residence owned by plaintiff’s brother. The property is most influenced by the land to the east and west, even though its north and south boundaries are longer.

Joseph Zgonina, a traffic engineer, testified for plaintiffs that the street system adjacent to the subject property is classified as minor residential, and is adequate for the type of development planned without any improvements. There is direct access to the property from Lamon, 145th Street, and Laport Avenue, and further access could be provided by removing a barricade currently blocking Lavergne Avenue at 145th Street. There is presently very little traffic along these streets, and the proposed plan would generate 56 additional traffic movements during peak morning hours and 67 during peak periods in the evening. Most of the traffic would use Cicero Avenue, and could enter the subject property by traveling west on 145th Street from Cicero, then north on Lamon. This traffic pattern would not adversely affect properties along the route. If the property were developed for single-family use, the existing roadways would be adequate, and the volume of traffic would be less. He admitted that Lamon Avenue and 145th Street would have to be widened to 30 feet of pavement to comply with the Village Code; and that, in studying the area, he was concerned only with what is currently available for access and did not ascertain whether any roads he observed were on public rights-of-way or private property.

William McCann, a real estate appraiser and consultant, testified that he examined the subject property and surrounding area on a number of occasions at plaintiffs’ request. The area around the intersection of Cicero Avenue and 147th Street is devoted to commercial uses, and to the west of this commercial area, principally along the east side of Lamon, the trend of development is multiple-family use. These uses are consistent with current zoning. The character of the area is mixed, with no one use predominating, although the most recent construction has been multiple-family units. The current trend of development in the area is multiple-family, but there are several new single-family homes in the area to the south, including one directly across 145th Street from the subject property. There are presently 102 multiple-family units on the east side of Lamon on just over three acres of land. Those buildings appear to have only two vacancies. The demand for condominium units in the area is good, whereas the demand for single-family homes is substantially down, principally because of high interest rates. If the units in the proposed plan are sold as condominiums, they would probably sell for $75,000 to $90,000. There is a wide range of homes in the area; the fair market value of some would be $250,000 to $300,000, while others are in the $60,000 to $90,000 range. Under current zoning, the fair market value of the subject property is $84,000, based on a reasonable density of 14 lots at a value of $6,000 to $7,000 per lot. If the property is rezoned, it would have a fair market value of $224,000. The highest and best use of the land would be multiple-family development in close conformity with the proposed plan. Such use would be consistent with the land use and zoning patterns that have developed throughout the area, and would not be depreciatory to surrounding property trends or values. The impact on surrounding uses, if any, would be consistent with the impact already experienced in the area by virtue of pre-existing multiple-family use and zoning. There would be no monetary depreciation in the value of homes in close proximity to the subject property. The existing zoning is unreasonable because development of single-family homes would be an unwarranted risk for plaintiffs, given the lack of demand for single-family homes, and the diminution in the value of the property is not warranted by the nature of the surrounding zoning and uses. Conversely, the proposed use is reasonable because the property takes its character from the most recent trend of development in the area, and would generate the highest return for the owners without any adverse or depreciatory effects on nearby residences. McCann acknowledged that in making his determination of the most recent trend of construction, he did not look at building permits issued by the Village, and determined occupancy of existing apartments by visual evidence; i.e., visible furniture or window coverings and the absence of “for rent” signs. He did not check with realtors in the area to ascertain the demand for condominiums or apartments, but relied on his own experience in the general area of the Village and surrounding communities. In determining the value of the land as zoned, he compiled statistics on 30 lots in Crestwood and Oak Forest; he did not attempt to ascertain the price of lots immediately adjacent to the subject property which were recently sold for single-family development. The zoning of land along the east side of Lamon is similar to buffer-type zoning which occurs in many zoning patterns. The Club parcel which is zoned for multiple-family development is unique in that it is a larger area adjacent to the Club facilities, but it does not have good access.

Paul Box, a traffic engineering consultant, testified for defendants that single-family development of the subject property would generate 15 additional traffic movements in the morning and 18 in the evening; whereas, multiple-family development would generate 67 movements in the morning and 78 in the evening — four times as much traffic as single-family development. The road south of the subject property along the Club is not located on the dedicated right-of-way for Lavergne Avenue, but is on private property belonging to the Club. Even if there were access to this road, its use would not be feasible because of the sharp angle of the intersection. Furthermore, its development as an access would channel traffic through an area of single-family homes, and this would have a detrimental impact on that area. The only other access to the subject property shown on the proposed plan is from Lamon at the northeast corner of the property. This is not a desirable access point, and plaintiffs’ plan will add to noise vibration, air pollution, and, potentially, increase the number of accidents, including those involving children. Access could not be planned from 145th Street as it is currently developed, because the pavement is only 15 feet wide and it is almost impossible for moving vehicles to pass each other. The proposed plan is not properly designed or appropriate to the area from a traffic standpoint, since the only feasible routes of traffic are along streets abutted by single-family homes, and the plan does not contain any dedications to improve the inadequate design. Box admitted that street dedications would also be necessary if the property were developed for single-family use. He did not know whether the Village has an official plan concerning land use and zoning, but he had seen zoning and subdivision regulations.

William Metz, a real estate appraiser and consultant retained by defendants, testified that a number of new homes have been built recently in the area south of the subject property, and the demand for single-family homes in the area is high because of its proximity to the golf course and the style and price-range of existing homes, estimated at $70,000 to $150,000. The demand for multiple-family units in the area is somewhat limited. The proposed plan of 27 units per acre is considered high density and, if the proper street dedications are made, the density will be 35 units per acre, which is within zoning limits. The land as currently zoned has a fair market value of $200,000 if developed into 10 lots for single-family homes. He based his figures on a study of four recent sales of developed lots in the area around the Club. The selling prices for these lots ranged from $28,000 to $45,000. Lots on the subject property would sell for $35,000 if improved and $20,000 if unimproved. Lots in older sections of the Village not in proximity to the Club sell for $5,500 to $8,000. If the land were rezoned for multiple-family use, it would have a fair market value of $225,000. The highest and best use of the property is single-family residential development considering land use patterns in the area, existing zoning, and the style and price range of existing homes. The proposed plan would have a minimum 10 to 15% depreciatory effect on the surrounding homes because of the congestion in the area and the style and placement of the proposed buildings. Development for single-family use would not be an unwarranted risk for the owners because of the demand for homes in this high-class area; whereas, multiple-family development would constitute an economic risk. Metz acknowledged that the property east of Lamon has been rezoned from single-family to multiple-family since some of the homes in the area were built. He gave the multiple-family zoning of the 17 acres west of the subject property very little weight in reaching his conclusions because, in his opinion, that property will never be developed in accordance with that zoning since it is counter to the current trend in developing such properties. In determining that the demand for multiple-family units was low, he considered the occupancy that appeared to exist, the slow sales of condominium units, and conversations with local brokers, builders, and developers.

John Reimer, a consulting engineer for the Village, testified that he was instrumental in designing and supervising the construction of water and sewer lines in the area. The lines which would serve the subject property are along its southern border, but they are not deep enough for the proposed use. There are existing lines east of the property, but they are located in a private easement and are not within the right-of-way for Lamon. There are water and sewer lines within the Lavergne Avenue right-of-way, but the subject property cannot be served by that sewer line because its elevation is too high. The existing system is presently overloaded downstream from the subject property and surcharges during heavy rain, causing an overflow of sewage into ditches and basements. Preliminary calculations indicate that the proposed development would generate 820% more sewage than single-family development, which would be detrimental to the entire area. The existing road south of the subject property is on Club grounds, at least five feet west of the dedicated right-of-way for Lavergne. The estimated cost of developing Lavergne is $71,000 to $84,000. The steep grade of the subject property makes it more suitable for single-family development. Reimer admitted that the surcharging problem has existed for three to four years, but the Village has not imposed a moratorium on building permits. It is feasible to change the grade of the subject property, but extensive cutting and filling would be needed and would be more destructive of the trees than single-family development. The Village has a master plan which contains requirements for streets and zoning; it also maintains the street located on Club property adjacent to the Lavergne right-of-way.

Lorraine Alies testified that she lives in a home immediately south of the subject property. She and her husband purchased two lots for $45,000 in 1978 and built their home at a cost of $200,000. Before purchasing, they checked the zoning in the area and were informed that it was zoned for single-family use. Two bedrooms and the family room of her home overlook the subject property. When she inquired about zoning, she learned that the property east of Lamon was zoned for multiple-family use, but did not ascertain the zoning on the north side of the Club.

Edward Cebulski testified that he is a realtor and lives in the area south of the subject property. The demand for single-family homes in the area is fair to good because of the large, wooded lots and the proximity to the Club. There are currently two homes in the area listed for sale with realtors. He was recently involved in a condominium conversion in the area and, during the 12 weeks that he handled the property, no units were sold. There are 10 vacant apartments and four vacant condominiums in the units east of Lamon. He owns a vacant lot in the area south of the subject property and currently has it listed for sale for $35,000.

Joseph DePeulo testified that he lives south of the subject property in a home he built on one of 10 lots he purchased in the area. Before buying, he went to the Village and asked what the zoning was and what the long-range plans were for the area. He was shown a map and was told that the area was zoned for single-family development, and the multiple-family zoning along Lamon was a buffer zone established to provide a transition from the commercial zoning along Cicero Avenue. He has built five homes on his other lots, mostly on speculation, and has sold each for $65,000 to $110,000 either while under construction or within three to four months after completion. Development for single-family use does not represent an economic risk because of the area, and he currently has a building permit to begin construction of another home. The proposed plan would have a depreciatory effect on his home, which faces the subject property.

Richard Michalek, plaintiff’s brother, testified that he lives in a home at 145th and Lamon located on land which was originally part of the subject property. The proposed plan will have a serious depreciatory effect on his property, which was appraised at $115,000 but is currently listed for sale at $89,000. He acknowledged that when he sold his interest in the subject property to plaintiffs, he included a clause in their contract prohibiting the construction of apartments for three years, explaining that he hoped to be able to sell his home and move in the interim. He did not oppose construction of the 12-unit apartment building across Lamon from his home, because the land was already zoned for multiple-family use and such opposition would have been futile.

Wilton Battles, a land planning and zoning consultant, testified for defendants that nine new homes and two new apartment buildings have been constructed in the area near the subject property since 1979, based on a study of building permits issued by the Village. The area around the subject property is predominantly single-family, and he did a land-use survey to determine the character of property immediately adjacent to the subject property. According to his land-use frontage survey, 38.27% of the subject property is adjacent to existing single-family homes, and the rest of the land is vacant; there is no frontage on any land currently developed for multiple-family use. A zoning survey indicates that 75.51% of the subject property's frontage is on land zoned for single-family use, while only 24.41% thereof is contiguous to multiple-family zoning. The trend of development in the area is clearly in the direction of single-family use, based on the new construction in the area. This trend is consistent with the character of the area, which is unique because of the rolling ground, heavy woods, scenic views, and narrow streets. These characteristics, as well as the substantial construction activity, distinguishes the area from other sections of the Village. The apartments east of Lamon constitute a buffer zone that effectively screens the lights and noise from commercial development along Cicero; such buffer zoning has been utilized not only in this area but in other parts of the Village. Approximately one month before plaintiffs’ request for rezoning was denied, the owners of the property immediately north of the subject property also requested rezoning from single-family to multiple-family use. The Village did rezone property along Cicero Avenue for commercial use, and other property east of Lamon for multiple-family use; however, the request was denied with regard to property between Lamon and the Club. The subject property is different from the 17 acres of the Club zoned for multiple-family use in that the latter is a larger area with its longest side oriented toward the golf course, there are major clearings on the property, and the zoned area also contains the clubhouse facility and parking lot. Multiple-family zoning on golf course property is a standard concept used by land planners, and its development would not impact on the single-family residential area. The proposed plan of development is not good because there is too much density, it provides insufficient parking, setbacks, buffering and transition, and it has poor access for an intensive development generating a lot of traffic, all of which would have to utilize one 20-foot-wide curved street. The proposed use would have a severe impact on the surrounding area because the apartments face away from the single-family homes, which would overlook parking lots with their inevitable lights and noise. The subject property is suitable for single-family development, and careful planning could maximize the green areas which would be consistent with the character of the area. Such development would generate only a slight increase in traffic, and while 45 trees would have to be cut down, this is less than the 59 trees which would be lost if the property is developed as proposed. The proposed plan is completely out of character with the surrounding area, and because of the higher elevation of homes to the south, it would be impossible to build a bérm high enough to screen out the adverse impact. The plan does not allow for dedications of streets which are necessary; if those are included, the buildings on the property will face each other at a distance of only 15 feet. The present zoning is reasonable, and the highest and best use for the subject property is development for single-family use, considering both the economic return to the owner and the impact on the surrounding area. Battles acknowledged that the nine new homes in the area have been built since the apartments were constructed on the east side of Lamon; however, the Village was relying on a buffer-zone concept in allowing construction of those apartments. The Village has an official comprehensive plan adopted pursuant to State planning statutes, but the official map which is a part thereof has not been updated since 1962.

The trial court found that despite the mixture of uses and zoning classifications, the area near the subject property is predominately single-family, and the multiple-family zoning east of Lamon is a properly created buffer between the commercial uses along Cicero Avenue and the single-family residential area west of Lamon Avenue. Although a 17-acre tract west of the subject property is zoned for multiple-family development, the court found that this area is uniquely suited to such zoning and does not adversely affect the subject property. The trial court acknowledged that the value of the property is diminished to some extent, but found that the hardship to plaintiffs was outweighed by the extent to which present zoning promotes the public health, safety, and welfare. In reaching this determination, the court noted that the expert witnesses differed in their opinions with regard to the weight to be given the adverse impact and the hardship to plaintiffs; it was therefore persuaded that this question was fairly debatable, and the opinions on both sides were reasonable. Under these circumstances, it was compelled to defer to the legislative judgment of the Village on this point. Finally, the trial court found that all experts agreed that the subject property is suitable for single-family residences, and that such development would be consistent with the development of land in the area surrounding the subject property. Based on these findings, the trial court held that plaintiffs had failed to overcome the presumptive validity of the ordinance by clear and convincing evidence and entered judgment for defendants. This appeal followed.

Opinion

Plaintiffs first contend that the findings of the trial court are against the manifest weight of the evidence. All parties agree that in determining the validity of a zoning ordinance, the trial court must consider “(1) [t]he existing uses and zoning of nearby property [citations], (2) the extent to which property values are diminished by the particular zoning restrictions [citations], (3) the extent to which the destruction of property values of plaintiff promotes the health, safety, morals or general welfare of the public [citations], (4) the relative gain to the public as compared to the hardship imposed upon the individual property owner [citations], (5) the suitability of the subject property for the zoned purposes ***, and (6) the length of time the property has been vacant as zoned considered in the context of land development in the area in the vicinity of the subject property. [Citations.]” (La Salle National Bank v. County of Cook (1957), 12 Ill. 2d 40, 46-47, 145 N.E.2d 65, 69.) Plaintiffs further assert that the court should also consider “the care with which the community has undertaken to plan its land use development, and the evidence or lack of evidence of community need for the use proposed” (Sinclair Pipe Line Co. v. Vil lage of Richton Park (I960), 19 Ill. 2d 370, 378, 167 N.E.2d 406, 411), while defendants maintain that plaintiffs must also prove not only that the existing zoning is unreasonable, but that the proposed use is reasonable (Drogos v. Village of Bensenville (1981), 100 Ill. App. 3d 48, 53, 426 N.E.2d 1276, 1280). It is plaintiffs’ position that when the evidence is considered in the light of all of the above factors, it is clear that the trial court’s ruling is against the manifest weight of the evidence.

A rebuttable presumption exists that a zoning ordinance is valid (La Salle National Bank v. County of Cook (1957), 12 Ill. 2d 40, 145 N.E.2d 65), and the challenging party must establish by clear and convincing evidence that the ordinance, as applied to their property, is arbitrary and unreasonable and bears no substantial relation to the public health, safety, or welfare (Tomasek v. City of Des Plaines (1976), 64 Ill. 2d 172, 354 N.E.2d 899). Where opinions may differ with regard to the reasonableness of the existing zoning classifications, the legislative judgment becomes conclusive. (La Salle National Bank v. City of Evanston (1974), 57 Ill. 2d 415, 312 N.E.2d 625.) Of course, the mere existence of conflicting opinions on the record does not necessarily mean that the plaintiffs have failed to meet their burden of proof (Duggan v. County of Cook (1975), 60 Ill. 2d 107, 324 N.E.2d 406); rather, the court must determine from all the evidence whether the different opinions are reasonable and justifiable (Aurora National Bank v. City of Aurora (1976), 41 Ill. App. 3d 239, 353 N.E.2d 61). Any conflicts in testimony are a matter for the trier of fact, and its determination will not be disturbed unless contrary to the manifest weight of the evidence (Aurora National Bank v. City of Aurora); that is, unless it appears that the opposite conclusion is clearly evident (Drogos v. Village of Bensenville (1981), 100 Ill. App. 3d 48, 426 N.E.2d 1276).

Plaintiffs first argue that the existing uses and zoning of the surrounding property, as well as the current trend in development, support a finding that current zoning is unreasonable, correctly noting that some courts have stated that this factor is of paramount importance. (See, e.g., Fay v. City of Chicago (1979), 71 Ill. App. 3d 603, 390 N.E.2d 125.) They rely in particular on the fact that land to the east and west of the subject property is zoned for multiple-family uses, and that two experts testified that the current trend in development has been toward multiple-family use, based on recent rezoning of property east of Lamon and construction of a greater number of multiple-family units than single-family units.

We note, however that other experts testified that over 75% of the subject property is contiguous to land zoned for single-family use, and that based on recent construction and zoning decisions, the trend of development is toward single-family use. Plaintiffs’ argument that the trial court gave undue weight to the survey in question, thereby unduly narrowing its consideration of surrounding uses, has little merit. We believe that the survey was properly persuasive on the issue of what surrounding uses most influenced the character of the subject property. Plaintiffs’ experts maintained that the property was most influenced by existing zoning on contiguous parcels to the east and west. The survey in question refuted that testimony, and the trial court apparently found it more persuasive than plaintiffs’ unsupported assertions to the contrary. Such questions are uniquely suited to resolution by the trial court, and we will not substitute our judgment thereon.

It is further apparent from the evidence that the trends of development are in accord with current zoning; that is, commercial establishments are developing in the area along Cicero zoned for such use, apartments and condominiums are being constructed in areas zoned therefor, and single-family homes are being built in appropriate areas. The trial court found, and the evidence supports, that the development and uses are in accord with the design of the Village to create a buffer-zone between the commercial area and the residential area. Plaintiffs would have us ignore this obvious pattern and find that the uses are mixed in a haphazard manner, and that because they can count more new multiple-family units than single-family units built in recent times, that the use and trend is “clearly” toward multiple-family. The trial court found otherwise, and its decision is supported by ample evidence, despite plaintiffs’ contention that the creation, of a buffer zone was not a plan or policy of the Village. The undisputed testimony is to the contrary. The trial court further found that the multiple-family zoning of the 17-acre tract west of plaintiffs’ property is reasonable because of the unique character of that parcel of land, and its determination is supported by the testimony of a number of witnesses.

With regard to the second factor to be considered, the impact of present zoning on the value of plaintiffs’ property, the trial court found that the present zoning diminishes that value, but made no finding on the exact extent thereof. Plaintiffs argue that the testimony of their witness clearly established that the value as zoned was $84,000, while the testimony of the Village’s witness that the current value is $200,000 was based on only two comparable sales and is therefore somehow suspect. We do not necessarily agree with plaintiffs’ assessment of the evidence, since their witness based his estimated value on a comparison of lots not even within the Village, with no explanation of how he found these lots to be comparable, whereas defendants’ witness relied on four recent sales within the Village and in the area adjacent to the Club. However, it is not our function to make findings of fact, only to consider those made by the trial court. If plaintiffs wished a ruling thereon, they should have made some objection at trial, or requested a factual determination on that point. Furthermore, the court, after finding that there was some diminution in value, went on to note that this factor is not determinative of the issue. (American National Bank & Trust Co. v. Village of Oak Lawn (1979), 81 Ill. App. 3d 952, 401 N.E.2d 963.) Rather, it must be considered in the light of the extent to which the existing zoning promotes the general health, safety and welfare of the public. It is only by comparing these two factors that the trial court can determine whether the relative gain to the public outweighs any hardship imposed on plaintiffs. The trial court found that the experts differed on the question of whether the proposed use would adversely affect surrounding properties, and whether the hardship to plaintiffs was outweighed by the gain in retaining the present zoning. It found these differences of opinion were reasonable, that is, based upon sound factual basés and expertise in the area, and that the issues involved were fairly debatable; it therefore concluded that it was bound to defer to the legislative judgment of the Village on this question.

We have considered the evidence on this point to determine whether the different opinions were reasonable. One witness for plaintiff opined that the proposed plan of development would, by the positioning of the buildings, minimize any adverse impact on adjacent property owners, explaining that the perimeter parking would place sufficient distance between the apartments and homes to the south. He further stated that rezoning would generate additional tax revenues for the Village and schools. A witness for defendants differed with this assessment, testifying that the elevation of the homes to the south prevented effective isolation of that property from the adverse impact of overlooking a parking lot. Furthermore, he testified that the proposed plan places buildings five feet from the lot line of a home located on the corner of 145th and Lamon, and no screening is provided for the land north of the subject property which is zoned for single-family residences and contains an existing home. Experts similarly disagreed on whether the existing street system was adequate for the proposed use, and whether the increased traffic which was bound to develop would have any adverse impact on surrounding homes. Real estate appraisers differed on the extent to which the proposed development would adversely affect the surrounding land, with one stating that there would be no depreciatory effect not already caused by pre-existing multiple-family development, while the other testified that there would be a minimum 10-15% monetary depreciation in surrounding property values if the proposed plan were adopted. Another witness for plaintiffs agreed that homes in the area would be more marketable if no rezoning were permitted. While their opinions differed, each expert had before it the same evidence, was qualified to render an opinion, and made his determination based on personal experience. We also note that a number of residents testified that, in their opinion, the proposed rezoning would adversely affect their property, while others stated that they purchased their homes in reliance on the existing zoning. Plaintiffs suggest that we ignore this testimony because property owners “ha[ve] no absolute right in the continuation of a zoning classification.” (Thompson v. Cook County Zoning Board of Appeals (1981), 96 Ill. App. 3d 561, 577, 421 N.E.2d 285, 298.) While it is true that rezoning will not be denied solely because neighboring property owners object, their opinions are not to be ignored, for “[ojther persons living in the *** district involved have a right to rely upon the precept that the classification will not be changed within the district unless the change is required for the public good.” (Urann v. Village of Hinsdale (1964), 30 Ill. 2d 170, 176, 195 N.E.2d 643, 647.) Based on the foregoing evidence, as well as other testimony of record, we concur with the trial court’s finding that the question whether public gain in retaining existing zoning outweighs the hardship to plaintiffs was, at best, debatable, and the legislative judgment on this point therefore must stand.

With regard to the fifth and sixth factors set forth in La Salle, the trial court found, and plaintiffs concede, that the subject property is suitable for single-family development. However, plaintiffs point out that the subject property has been vacant for 30 years and no offers have been received to develop it. They assert that the evidence therefore clearly supports a finding for them on this factor. However, we note that plaintiffs testified that they have made no attempts to sell the property or develop it for single-family use because it has been their goal since inheriting it to develop the property for multiple-family use. As we recently noted:

“One relying on the length of time the property has remained vacant must establish that the property is unsaleable, vacant or undeveloped because of the zoning classification. Absent such proof, we would have no more reason to hold the vacancy of the property was occasioned by improper zoning than we would to hold that the vacancy occurred because no attempts were made to use or develop the property, or because other difficulties totally unrelated to zoning had been encountered.” Amalgamated Trust & Savings Bank v. County of Cook (1980), 82 Ill. App. 3d 370, 384, 402 N.E.2d 719, 731.

Plaintiffs further maintain that two additional factors must be considered, that is, the comprehensiveness of the Village’s plan for the use and development of the land and the need for the proposed use in the area. These factors were not recited in the trial court’s order, and apparently no findings were made thereon. We note that plaintiffs did not object to omission of the consideration of these factors, nor did they request findings thereon. Nevertheless, the parties have briefed and argued these points, and we find that neither factor supports plaintiffs’ contention that the present zoning is unreasonable. Plaintiffs argue that the lack of a comprehensive plan “weakens” the presumed validity of the zoning ordinance, citing Forestview Homeowners Association, Inc. v. County of Cook (1974), 18 Ill. App. 3d 230, 309 N.E.2d 763. They assert that the evidence shows that the Village had no such plan, supporting their argument by quoting the trial court’s remark that “[t]he big problem with your community from a zoning standpoint *** is that you don’t have a master plan for your village.” We have read the above quotation in context, and believe that the court was referring, not to the total lack of a zoning plan, but to the apparent lack of a plan for street development. We further note that this remark occurred during presentation of plaintiffs’ case-in-chief, before the Village had any opportunity to place its zoning plans in evidence. Later, uncontroverted testimony established that the Village does, in fact, have a comprehensive plan consisting of an official map, specifications for street construction and paving, zoning ordinances, and subdivision control ordinances. Plaintiffs maintain that, because the official map has not been updated since 1962, we must assume that no comprehensive plan exists. However, there is no testimony that other parts of the plan have not been updated, and plaintiffs cite no authority for the proposition that subsequent changes in zoning must be presumed arbitrary simply because no one thought to recolor the map.

Plaintiffs’ contention that the proposed use is needed in the area was subject to conflicting evidence. Their experts asserted that there was a demand for multiple-family units, whereas the market for single-family homes was depressed. They further testified that there were only two vacancies in the immediate area, based on visible evidence of occupancy. This testimony is totally contradicted by witnesses testifying for defendants, who stated that in this particular area there is little need for multiple-family units, there is a demand for single-family homes, and there are 13 vacancies in multiple-family units in the immediate area, again based on personal observation. One expert called by plaintiffs testified that there was a need for both types of housing in the area. On this point, then, the opinions of the experts differ, and we cannot say that the basis for any opinion is unreasonable, since all purported to speak from personal experience, and presented resumes clearly establishing their expertise in their respective areas. Such evidence does not constitute the clear and convincing proof needed to overcome the presumed validity of the zoning ordinance.

Defendants maintain that plaintiffs have also failed to prove that the proposed development of their property constitutes a reasonable use thereof. The trial court did not reach this question, and no findings were made thereon. In the light of our determination that the trial court’s findings on the issue of the reasonableness of present zoning is not against the manifest weight of the evidence, we need not reach this issue. Plaintiffs must prove both the unreasonableness • of current zoning and, according to some courts, the reasonableness of the proposed use. Since plaintiffs have failed to meet their burden with regard to the first issue, it is immaterial whether they could or did prove the latter.

Finally, the plaintiffs contend that the trial court erred in admitting evidence of the Village building code, fire code, and subdivision ordinances. They concede that the trial court admitted this evidence only as it related to zoning, and that it struck other testimony on these points as irrelevant to a determination of the reasonableness of existing zoning. They also concede that, because of the trial court’s restrictions on the use of this evidence, the error in receiving it, if any (and plaintiffs do not cite a single authority supporting their contention that such evidence is not proper), is rendered harmless by the trial court’s limitation on its use and striking of portions thereof. Nevertheless, they ask that we find that admission of this evidence was so fundamental an error that we must disbelieve the trial court’s express statements that the evidence in question would be considered only in relation to zoning, and that it did not consider the stricken testimony in reaching its final determination, and grant them a new trial. This argument is frivolous, and made without any citation to relevant authority, in contravention of Supreme Court Rule 341(e)(7) (73 Ill. 2d R. 341(e)(7)). For this reason alone, we would be justified in deeming the question waived. (See Williamson v. Opsahl (1981), 92 Ill. App. 3d 1087, 416 N.E.2d 783.) Furthermore, having read the trial court’s findings, both oral and written, we find absolutely no basis for believing that it did not limit its consideration of the evidence as stated, or that its decision was not otherwise based on proper evidence and arrived at in a thoughtful, well-reasoned manner.

For the foregoing reasons, the judgment of the trial court is affirmed.

Affirmed.

WILSON, P.J., and LORENZ, J., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE STOUDER

license: Public Domain

text:
    MARILYN MAIN, Plaintiff-Appellant, v. BALLYMORE COMPANY, Defendant-Appellee.
    Third District
    No. 82—453
    Opinion filed April 29, 1983.
    Rehearing denied June 14, 1983.
    S. David Simpson, of McLaughlin, Battery, Simpson & Sullivan, of Gales-burg, for appellant.
    Rex K. Linder and John Lesaganich, both of Heyl, Royster, Voelker & Allen, of Peoria, for appellee.
   PRESIDING JUSTICE STOUDER

delivered the opinion of the court:

Plaintiff Marilyn Main filed a complaint for damages stemming from personal injuries allegedly occasioned by the strict liability in tort of defendant Ballymore Company. After a jury trial, the circuit court of Knox County entered judgment in defendant’s favor.

Plaintiff received her injuries on March 9, 1977, when she fell from a ladder at her place of employment. The ladder was manufactured by defendant and was termed a “multiple ladder stand.” It is constructed of tubular metal and has four nearly vertical legs with rubber tips on the bottom. Four wheels with spring mechanisms allow the ladder to roll when there is little or no weight on it.

Plaintiff’s expert, Dr. Harold Weinstock, testified that he tested the ladder at the scene of the fall. Using barbell-type weights, he found that when 116.2 pounds was placed on the middle of the top step, on which plaintiff had been standing when the ladder moved, one leg made no contact with the floor and another made “just bare contact.” When the weight was moved left of center, neither of the right legs made contact with the floor and another leg made “point like contact.” When 120 pounds was placed on the top step, the various legs were supporting 86.5, 18.5, 12.4 and 2.6 pounds. Weinstock testified that a user of the ladder who moves exerts a horizontal force which is resisted by the frictional force between the ladder and the floor, and when the horizontal force exceeds the frictional force, the ladder will move or slide. Based on the foregoing, he concluded the ladder was unstable, the instability was the result of using springs which were “too stiff,” and the ladder was unreasonably dangerous for a person under 200 pounds.

Defendant’s expert, Professor Thomas Dolan, testified that he also tested the ladder at the scene of the fall. He found the floor had a very low coefficient of friction, .22 or about three times less than a concrete pavement, and that the surface under the ladder would affect the ability of the rubber-tipped legs to grip. In response to a hypothetical question, Dolan testified that the ladder would not move, that it would be physically impossible for it to roll or slide when the user is standing at the center of the top step and not moving, that the ladder had a great deal of stability, and that one could rock it considerable distances without it toppling over.

After listening to the experts and other testimony, the jury retired at 11:52 a.m. of the fourth day of trial. At 12:05 p.m., it requested the ladder. Over various objections by both parties, the court allowed the ladder in the jury room. At 1:50 p.m., the jury requested a pad with a surface similar to the floor at the scene of the fall and an object or objects weighing approximately 120 pounds. This request was denied.

The sole issue presented for our review is whether the trial court abused its discretion in allowing the ladder to be taken to the jury room. It is well established that the court has considerable discretion as to the exhibits which may be there taken. Lamphere v. Old Second National Bank (1976), 39 Ill. App. 3d 610, 350 N.E.2d 272, appeal denied (1976), 63 Ill. 2d 557; Nowakowski v. Hoppe Tire Co. (1976), 39 Ill. App. 3d 155, 349 N.E.2d 578; Raspar v. Clinton-Jackson Corp. (1969), 118 Ill. App. 2d 364, 254 N.E.2d 826, appeal denied (1970), 43 Ill. 2d 397.

There is little question as to the reason the jury requested the ladder. As noted by the trial court:

“This ladder had been drug [sic] through this courthouse for four days and it is apparent to me that the jury wants this ladder to walk on it. They want to use it. ***
*** This is what they want it for. They want to test the ladder.” (Emphasis added.)

The difficulty with this situation has been addressed:

“The major problem stemming from relatively free jury access to tangible exhibits other than writings is that of controlling jury use of them for purposes of experimentation. The general limitations upon the introduction of evidence of experiments obviously become largely meaningless if the jury is allowed to conduct experiments of its own devising in the jury room.” (McCormick, Evidence sec. 217, at 541 (2d ed. 1972).)

Because of the fundamental rule that the jury may not receive evidence out of court, it has been held that insofar as tests or experiments carried out by the jury during deliberations have the effect of introducing new evidence out of the presence of the court and parties, such are improper; and, if the new evidence in question has a substantial effect on the verdict, prejudicial. (See Annot., 95 A.L.R.2d 351 (1964).) This is reflected in the Illinois rule, in criminal causes, that it is improper to conduct experiments or private investigations which have the effect of producing evidence which was not introduced at trial. People v. Gilbert (1977), 68 Ill. 2d 252, 369 N.E.2d 849.

In the cause at bar, the jury had the benefit of the testimony of, inter alios, expert witnesses who had conducted tests at the scene of plaintiff’s fall. When the jury requested the ladder, it was apparent to all an independent investigation of its properties was contemplated, and this was confirmed by the later request for the pad and weights. The jury’s testing did not take place before the court nor was it subject to evidentiary constraints or cross-examination. The investigation was prejudicial as it was neither conducted at the scene of the fall nor under similar conditions. Most critically, it constituted the introduction of new evidence in the jury room. Were our system of justice to sanction such a practice, the testimony of experts and even a trial itself would be rendered hollow formalities. We therefore hold the trial court’s permitting the ladder to be taken into the jury room to be an abuse of its discretion.

As we have not considered the affidavit of the jury’s foreman, we do not reach the additional question concerning the use of that instrument.

Accordingly, the circuit court of Knox County is reversed and this cause remanded for a new trial.

Reversed and remanded.

BARRY and SCOTT, JJ., concur.


author: JUSTICE SULLIVAN

text:
    SKOKIE GOLD STANDARD LIQUORS, INC., et al., Plaintiffs-Appellants, v. JOSEPH E. SEAGRAM & SONS, INC., et al., Defendants-Appellees.
    First District (5th Division)
    No. 82—2335
    Opinion filed August 5, 1983.

      Jay L. Schultz, of Chicago (Schultz & Schultz, of counsel), for appellants.
    Stanley D. Robinson, of Kaye, Scholer, Fierman, Hays & Handler, of New York, New York, and Louis L. Biro, of Louis L. Biro, P.C., and Patrick W. O’Brien and P. Terrence Buehler, both of Mayer, Brown & Platt, both of Chicago, for appellee Joseph E. Seagram & Sons, Inc.
    Harvey M. Silets and Shelly B. Kulwin, both of Silets and Martin, Ltd., of Chicago, for appellee Federated Distributors, Inc.
   JUSTICE SULLIVAN

delivered the opinion of the court:

This appeal is from an order of the trial court disqualifying plaintiffs’ counsel in an action to enjoin violations of section 104a of the Business Corporation Act (Ill. Rev. Stat. 1981, ch. 32, par. 157.104a), section 220 of “An Act to revise the law in relation to criminal jurisprudence” (Ill. Rev. Stat. 1981, ch. 32, par. 211.1), section 4 of “An Act in relation to the use of an assumed name ***” (Ill. Rev. Stat. 1981, ch. 96, par. 7), and section 2 of the Uniform Deceptive Trade Practices Act (Ill. Rev. Stat. 1981, ch. 121½, par. 312). The sole issue on review is the propriety of that disqualification.

Joseph E. Seagram & Sons, Inc. (Seagram), is an Indiana corporation authorized to transact business in Illinois. Operating through six divisions, it is engaged in the manufacture and sale of distilled spirits and wines. Federated Distributors, Inc. (Federated), an Illinois corporation, purchases and sells alcoholic beverages at wholesale through four divisions. On October 16, 1981, plaintiffs filed a complaint alleging in separate counts that Seagram and Federated were operating in violation of several statutes relating to the use of assumed corporate names. Seagram moved to disqualify plaintiffs’ attorney, Allen H. Schultz (Schultz) and the law firm of Schultz & Schultz for violations of Canons 4 and 9 of the Illinois Code of Professional Responsibility. (79 Ill. 2d Canons 4, 9.) It alleged that the firm of Schultz, Biro & Karmel, predecessor of Schultz & Schultz, was retained by Seagram in 1969 to perform work with respect to the reorganization of its corporate structure in Illinois. As a part of that work, Seagram maintained, Schultz, Biro & Karmel completed and filed in its behalf applications to do business under various assumed names.

In support of its motion, Seagram presented the affidavit of M. Jacqueline McCurdy, a vice-president of Seagram, attesting that a search of Seagram’s corporate records showed that it retained Schultz, Biro & Karmel in 1969. Four letters from this period relating to the legal work performed were also filed as exhibits. Each is signed:

“Schultz, Biro & Karmel
(Signature)
Louis L. Biro.”

One letter is on letterhead stationery with the legend “Law Offices of Schultz, Biro & Karmel” at the top, and in the upper left comer the names Allen H. Schultz, Louis L. Biro, Robert Karmel, and Neal D. Rosenfeld. That letter is written in the singular and refers to “my client.” The other three letters are carbon copies which do not show any letterhead, but they refer to “our client” and are written in the plural, including one directed to an officer of Seagram which states in pertinent part:

“On September 8, 1969 we filed with the Illinois Liquor Control Commission the new territory registrations at both the Chicago office and by mail to the Springfield office. *** Enclosed is a copy of our covering letter *** regarding the registrations that were mailed to the Springfield office. *** We are also enclosing our statement for professional services rendered. If I can be of any further assistance to you in this matter, please do not hesitate to contact me.”

An affidavit of Louis L. Biro states that he was associated with Schultz in the practice of law from 1954 to 1970 under the various firm names Schultz & Biro, Schultz, Lippman & Biro, and Schultz, Biro & Karmel. During the relevant years, the firm of Schultz, Biro & Karmel was listed in Sullivan’s Law Directory, Martindale-Hubbell Law Directory, and the Chicago Telephone Directory. The three attorneys referred to each other as partners in their relationships with clients and other members of the legal profession, and the name Schultz, Biro & Karmel appeared on stationery and billing invoices sent to clients. When he first joined Schultz in 1954, it was agreed that he (Biro) would receive at least $6,500 annually. In return for office space and a secretary, Schultz was to receive the first $5,000 of fees generated by clients brought in by him (Biro) as well as a percentage of all fees over $5,000. Billings sent to clients contained the legend “Schultz, Biro & Karmel,” and clients made their payments to Schultz, Biro & Karmel. Schultz received all fee payments and deposited them in either his or the firm’s account; the share of the fees Biro generated was computed at least annually. Seagram retained the firm in 1969 and was billed in accordance with the above procedure. He and Schultz shared the fee for this work. While they were associated, he and Schultz worked closely together on a variety of legal matters for their respective clients, and Schultz was aware of his (Biro’s) clients and the work he was doing because they shared the fees generated.

In a supplemental affidavit, Biro stated that:

“1. In 1969, Joseph E. Seagram & Sons, Inc. retained Schultz, Biro & Karmel to assist the Corporation with various corporate reorganization matters, including but not limited to: discussions regarding the territorial and label registrations required in the State of Illinois pursuant to the corporate reorganization, the requirements for licensing or not licensing the Corporation in its various divisions and complete compliance with the Illinois corporation statutes, including the Assumed Name statutes. The professional services rendered by the Firm of Schultz, Biro & Karmel included conferences which I had with the General Counsel of Joseph E. Seagram & Sons, Inc., the exchange of written materials and numerous telephone conversations.
2. During the period from 1954 to 1970, while I was associated with the law firm of Schultz, Biro & Karmel, it was my regular practice to discuss with Mr. Schultz all client matters which I was handling and that he was handling. It was the normal practice in our three person office to discuss all new clients and matters. Because the work performed by [s-ic] Seagram, which is the subject of this controversy, was completed approximately 12 years ago, I cannot recall a specific conversation about Seagram matters with Mr. Allen H. Schultz, but do unequivocally state that it was our normal practice to discuss client matters during the entire 16 year period when Mr. Allen H. Schultz and I practiced law together.”

Seagram also presented a letter dated November 12, 1970, written on behalf of a client other than Seagram, which is signed:

“Schultz, Biro, Karmel & Rosenfeld
(Signature)
Allen H. Schultz.”

The letter is on stationery bearing the name Schultz, Biro, Karmel & Rosenfeld and is written in the plural, i.e., “[w]e are writing you,” “[pjlease advise us,” “please forward them to us,” and “[w]e are enclosing.”

An affidavit of Robert Karmel states in part that, in 1969 and for several years prior and subsequent thereto, he practiced law in association with Schultz and Biro under the name Schultz, Biro & Karmel, and that they held themselves out to the public as a partnership. During that time he performed services under that name for his own clients as well as for Schultz’ clients, and the name Schultz, Biro & Karmel appeared on all stationery and billing invoices sent to clients.

Plaintiffs’ verified answer denied the above allegations, and in an affidavit in support thereof Schultz states that Schultz, Biro & Karmel was not an actual law firm nor a legal partnership; the firm did not have a partnership agreement, file an income tax return, or possess an employer’s taxpayers account number. Each attorney was a sole proprietor, retained all fees generated by him, and filed his own income tax return. Biro and Karmel did perform selective legal services for him in return for office space, secretarial services, stationery (letterheads and billheads), access to a law library, and various peripheral services. Biro also received a monthly salary, but he (Schultz) was never privy to the legal problems of any of Biro’s or Karmel’s clients. Seagram retained Biro in 1969, not the law firm of Schultz, Biro & Karmel, and he (Schultz) never spoke with any representatives of Seagram, never performed any professional services for it, and never received any part of the fee paid by it. Biro did not share any confidential information with him which he (Biro) may have received from any client, including Seagram. He employed Biro and Karmel from 1954 to 1970 to assist him in the practice of law. In order to enhance their standing in the legal community, he agreed, at their request, to use the assumed name of Schultz, Biro & Karmel to identify the relationship. However, he never referred to them as his partners, there was no partnership, and he made it clear to others that Biro and Karmel were employees. Only Biro was involved with Seagram, and the only service provided by him was the filing of public documents with the Cook County Clerk and the Illinois Liquor Control Commission; these filings involved nothing legal or confidential. Biro received $5,000 a year in monthly installments as an advance against his fees. He repaid this advance at the end of each year and retained the balance of the fees he generated. To facilitate bookkeeping, Biro’s fees were recorded by a secretary and deposited in a special bank account, but Biro could draw on that account at any time. Schultz denied receiving any percentage of Biro’s fees, including fees received from Seagram, or knowing that Biro ever represented Seagram.

A hearing on the motion to disqualify was held on March 3, 1982. No witnesses were presented by either side, but Schultz, in arguing the motion, repeated his assertions that there was no partnership, that he had no knowledge of Biro’s prior representation of Seagram, and that the only work performed in 1969 was the filing of public documents. During that hearing, the trial court expressed its desire to have a “complete hearing” on the motion to disqualify, to which Schultz responded “What do you mean by a ‘complete hearing’? I understand this to be a complete hearing.” Without further hearings, the trial court issued a memorandum opinion on March 15, 1982, which states in relevant part:

“During such time as Allen H. Schultz, attorney for plaintiffs herein, was associated with Louis L. Biro, Biro represented SEAGRAM. In fact, Louis Biro, during the course of his association with Schultz, Biro & Karmel, performed the very work which is now being attacked by the plaintiffs as illegal. Mr. Biro indicated in an Affidavit, *** that he and Mr. Schultz worked closely together on a variety of legal matters, and that Mr. Schultz was aware that SEAGRAM was represented by Mr. Biro. Mr. Biro further indicated that all billing for legal services rendered was done under the firm name of Schultz, Biro & Karmel.
Allen Schultz stated in open court that the law firm of Schultz, Biro & Karmel was not a partnership; rather the arrangement between he [sic] and Mr. Biro was that of employer/ employee. Mr. Schultz further stated that there were only three members of the firm and that they worked independently of each other. He did not deny that clients were billed under the firm name.
It is the opinion of this Court that the statements made by Mr. Schultz, both in open court and in the memorandum submitted by him, are not sufficient to rebut the presumption that he was privy to certain confidential and secret information involving SEAGRAM.
It is the opinion of this Court that certain ‘confidential and secret information’ could have been imparted to Mr. Allen H. Schultz, and that by virtue of his association with Louis L. Biro, who performed the legal services complained of herein while associated with Mr. Schultz, he is bound by Canon 4.
* * *
It is abundantly clear from the facts heretofore presented that to permit Allen H. Schultz and the law firm of Schultz and Schultz to continue their representation of the plaintiffs in their Complaint against SEAGRAM, would result in more than just the ‘appearance’ of impropriety. It is this Court’s opinion that in the interest of public trust, it is crucial that such an appearance of impropriety be avoided. •
Further, this Court finds that because of Mr. Schultz’ relationship with Mr. Biro, during such time as Mr. Biro was representing SEAGRAM, that to permit Mr. Schultz or his law firm to continue in their representation of the Plaintiffs herein would result in unfairness to the Defendant, SEAGRAM.”

The trial court ordered that Schultz and the firm of Schultz & Schultz was disqualified from any further representation of plaintiffs in pursuing any claim against Seagram which sought to attack any legal work performed by Biro during the time that Biro was associated with Schultz.

On March 17, 1982, plaintiffs moved to vacate the above order, and Seagram and Federated requested time to respond to that motion. Plaintiffs objected to any participation by Federated, asserting that it had presented no motion to disqualify and was not protected by the March 15 order. Federated maintained, and the trial court agreed, that it had orally joined in Seagram’s motion. All parties were granted leave to present memoranda with regard to the motion to vacate, but no further evidence was presented. On August 30, 1982, the trial court stated orally that the motion to disqualify applied to Federated, and it would so order. In a written order of that date it denied without prejudice plaintiffs’ motion to sever their actions against Seagram and Federated, filed May 7,1982, and further stated:

“This cause coming on for hearing on plaintiffs’ Motion to Vacate the Order of March 15, 1982 disqualifying Allen H. Schultz and the law firm of Schultz & Schultz from further representation of the plaintiffs against all defendants:
It is hereby ordered that the motion is denied, and this Court’s Order of March 15,1982 is sustained.”

The trial court found that there was no just reason to delay enforcement or appeal. Plaintiffs’ motion to vacate the August 30 order was denied on September 17,1982, and this appeal followed.

Opinion

Preliminarily we note that there are few Illinois cases relevant to the issue of attorney disqualification. We have held that Canon 4 (“A lawyer should preserve the confidences and secrets of a client”) and Canon 9 (“A lawyer should avoid even the appearance of professional impropriety”) of the Illinois Code of Professional Responsibility may provide a basis for such disqualification, and that “[t]he relevant test *** is 'where any substantial relationship can be shown between the subject matter of a former representation and that of a subsequent adverse representation, the latter will be prohibited.’ [Citations.]” (La Salle National Bank v. Triumvera Homeowners Association (1982), 109 Ill. App. 3d 654, 664, 440 N.E.2d 1073, 1080.) Here, however, plaintiffs do not contest the applicability of Canons 4 and 9, nor do they contend that there is no substantial relationship between the former representation by Biro and the present action. Instead, they ask us to go beyond La Salle and consider three related issues not previously decided by this court. First, they maintain that the party seeking disqualification must show that confidences or secrets were imparted by it to the attorney representing it in the prior matter. Second, since it is undisputed that Biro performed the actual legal services in question, they maintain that Schultz, a former associate, may rebut, and has rebutted, any presumption that he was privy to Seagram’s confidences or secrets. Third, plaintiffs ask us to consider whether an attorney also must be disqualified from representing another party against the codefendant of a former client where there has been no showing that an attorney-client relationship ever existed between the codefendant and the attorney or one with whom he was associated in the practice of law.

Before reaching these three important issues, however, we must address two peripheral matters raised by plaintiffs: whether the trial court erred in denying disqualification on the grounds of laches and waiver; and the standard to be employed by us in reviewing the trial court’s decision.

With regard to the first of these questions, plaintiffs maintain that Schultz represented Seagram’s adversaries in two prior actions, J.W.T., Inc. v. Joseph E. Seagram & Sons, Inc. (N.D. Ill. 1972), 347 F. Supp. 965, and Calvert Distillers Co. v. Vesolowski (1973), 14 Ill. App. 3d 634, 303 N.E.2d 170, and that issues were raised in each case regarding Seagram’s use of assumed names. They argue that Seagram failed to present a motion to disqualify Schultz in those actions and therefore is barred from doing so in the instant action.

Plaintiff’s contention that the trial court refused to deny disqualification on these grounds is not supported by the record; to the contrary, the trial court was never asked to rule on the issue of laches or waiver, since the question was not raised below. Issues and arguments which were not presented to or considered by the trial court cannot be raised for the first time on review. (Klubeck v. Division Medical X-Ray, Inc. (1982), 108 Ill. App. 3d 630, 439 N.E.2d 506.) The rationale for this rule is clearly evident in the case before us. Plaintiffs assert that the same issues were raised in the prior cases as are raised here, yet there is nothing in this record which supports that statement, nor has Seagram had an opportunity to present evidence which might contradict it. Similarly, we have no way of knowing, other than plaintiffs’ unsupported statement, whether a motion to disqualify was presented in those cases, or whether it might have been presented and denied for some reason inapplicable to the case at bar. Seagram has had no opportunity to offer proof to refute or overcome this argument.

Furthermore, several courts have held that, where disqualification is predicated upon a violation of Canon 9, which involves considerations of the public interest, the doctrines of waiver and laches are inapplicable. For example, in In re Corrugated Container Antitrust Litigation (5th Cir. 1981), 659 F.2d 1341, 1348-49, the court noted:

“Our cases indicate that disqualification is a matter of ethical, not legal, considerations [citation], and that, particularly in cases involving Canon 9, the interest of the client is not the only consideration. Indeed, part of our test for disqualification under Canon 9 calls for a weighing of the likelihood of public suspicion. [Citations.] While in some circumstances the client may be able to consent to or waive his objection regarding a violation of Canon 4 or Canon 5, the client may not, by delay or any other action, remove from the court the responsibility of weighing the likelihood of public suspicion of the legal profession when Canon 9 is involved.”

A similar response to an argument that the issue was waived by the movant’s failure to raise it in other litigation is contained in MPL, Inc. v. Cook (N.D. Ill. 1980), 498 F. Supp. 148, 151, wherein the court stated that “no claim of laches or waiver can bar this Court from applying a prophylactic rule intended to protect the integrity of lawyer-client relationships and with it the ethics of the profession.” Since the present action similarly involves questions of the appearance of impropriety and concerns for the public interest in maintaining the attorney-client relationship, it is our view that the issue of laches and waiver, even if they had been properly before the trial court, would not have warranted denial of disqualification under the circumstances of this case.

Our decision herein should not be interpreted to mean that the question may never be waived. We note that the third district recently applied the doctrine of waiver in affirming the trial court’s denial of a motion to disqualify the defendant’s attorney in Roth v. Roth (1980), 84 Ill. App. 3d 240, 405 N.E.2d 851. We believe that case is distinguishable from the instant action. In Roth, the plaintiffs knew of the potential impropriety from the outset of the action, but allowed the litigation to proceed for two years before presenting their motion to disqualify the defendant’s, counsel. During that time the attorney in question had prepared a complex defense, and plaintiffs conceded that he had no actual knowledge of his former firm’s representation of them in a prior, related matter. It is possible that, under similar circumstances, we would find application of the waiver doctrine appropriate. Here, however, there was no delay in presenting the motion to disqualify, and Seagram does not concede that Schultz has no knowledge gained during the prior representation.

With regard to the appropriate standard of review, this court held in La Salle National Bank v. Triumvera Homeowners Association (1982), 109 Ill. App. 3d 654, 440 N.E.2d 1073, that a motion to disqualify is addressed to the sound discretion of the trial court, and its determination -will not be disturbed absent a showing of abuse of that discretion. Nevertheless, plaintiffs maintain that, where all evidence was presented through affidavits and no evidentiary hearing was conducted, our review is not limited by the restrictive “abuse of discretion” standard; rather, they contend, we must consider the evidence presented and make our own determination whether any violation of ethical norms has occurred. In support thereof, they cite Freeman v. Chicago Musical Instrument Co. (7th Cir. 1982), 689 F.2d 715, 721, wherein the court stated:

“Preliminarily, it is important to note the limits of the scope of review by which we are guided. All evidence in the case at bar comes via affidavits. The district court neither held an evidentiary hearing on the disqualification motion nor did it make findings of fact to which we must defer. Under similar circumstances, we have stated and we now reaffirm that district courts enjoy no particular advantage over appellate courts in their formulation of ethical norms. [Citations.] It is thus appropriate for us, in this case, to determine whether the district court’s disqualification order was predicated upon a proper understanding of applicable ethical principles. [Citations.]”

The above-quoted language, when read in the context of the entire case, does not stand for the proposition which plaintiffs assert, namely, that the standard of review is different because the evidence was presented by way of affidavit. In Freeman, the district court employed a standard under which the presumption that members of a firm share confidences was irrebuttable; the circuit court held that this standard was erroneous, that such a presumption was rebuttable, and remanded to the district court for further consideration of that issue. It is apparent from a subsequent case that, where the proper legal principles have been employed, the Seventh Circuit has not abandoned the “abuse of discretion” standard of review where all evidence was presented through affidavits. See La Salle National Bank v. County of Lake (7th Cir. 1983), 703 F.2d 252.

Viewed in this light, it appears that Freeman states no more than what has always been the standard of review in Illinois courts. Where the issue involves solely a question of law, it will be determined by this court independent of the trial court’s judgment (Illinois Valley Asphalt, Inc. v. La Salle National Bank (1977), 54 Ill. App. 3d 317, 369 N.E.2d 525), but where the question involves resolution of a factual question, the trial court’s determination will not be disturbed unless unsupported by the evidence (see LaSalle National Bank v. Triumvera Homeowners Association (1982), 109 Ill. App. 3d 654, 440 N.E.2d 1073). We are mindful of the difference between questions of law and questions of fact, and will employ the appropriate standard of review where applicable.

We turn now to the three main issues raised by plaintiffs and consider first their contention that the trial court erred in extending the scope of Canons 4 and 9 to information allegedly imparted by a client for the purpose of filing it as a matter of public record. Their argument assumes that Seagram imparted no information to Biro beyond what is contained in the public filings. However the cases cited by plaintiffs in support of their argument involve not Canons 4 and 9 but the evidentiary privilege prohibiting disclosure of confidential information imparted to an attorney during the course of his representation. (See Dickerson v. Dickerson (1926), 322 Ill. 492, 153 N.E. 740; Monier v. Chamberlain (1966), 66 Ill. App. 2d 472, 213 N.E .2d 425, aff’d (1966), 35 Ill. 2d 351, 221 N.E.2d 410.) They assert that all information received by Biro was disclosed as a matter of public record when he filed documents on Seagram’s behalf with the clerk of Cook County, and it is these documents which they are relying upon in pursuing this action rather than any information possibly received during the course of the prior representation.

Initially, we note that we are not concerned here merely with attorney-client privilege. As one court has noted, the ethical obligation of a lawyer to guard the confidences and secrets of his clients is broader than the attorney-client privilege. (NCR Organization Ltd. v. Bregman (2d Cir. 1976), 542 E2d 128.) “[T]he client’s privilege in confidential information disclosed to his attorney ‘is not nullified by the fact that the circumstances to be disclosed are part of a public record, or that there are other available sources for such information, or by the fact that the lawyer received the same information from other sources.’ [Citation.]” Emle Industries, Inc. v. Patentex, Inc. (2d Cir. 1973), 478 F.2d 562, 572-73.

Furthermore, plaintiffs’ argument places the burden on Seagram to prove that something more than that which is contained in the public record was revealed to its attorney. However, in order to preserve the confidentiality of the attorney-client relationship, the Federal courts have uniformly held that, once it is shown that the prior representation is substantially related to the action in question, it is irrebuttably presumed that confidential information was disclosed. (Duncan v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (5th Cir. 1981), 646 F.2d 1020, cert. denied (1981), 454 U.S. 895, 70 L. Ed. 2d 211, 102 S. Ct. 394; Cheng v. GAF Corp. (2d Cir. 1980), 631 F.2d 1052, vacated on other grounds (1981), 450 U.S. 903, 67 L. Ed. 2d 327, 101 S. Ct. 1338; Schloetter v. Railoc of Indiana, Inc. (7th Cir. 1976), 546 F.2d 706.) The rationale for this rule is best explained in In re Corrugated Container Antitrust Litigation (5th Cir. 1981), 659 F.2d 1341, 1347, wherein the court stated:

“*** it is evident that the presumption arising under the substantial relationship test is not the ordinary type of presumption that is intended to obviate the need for proof where proof would be difficult. Instead, this presumption is intended to prevent proof that would be improper to make. The presumption avoids compelling the former client to prove the very things that he seeks to keep confidential. If the presumption were rebuttable, that is, if the attorney could attempt to prove that he did not recall any disclosure of confidential information, or that no confidential information was in fact disclosed, this could also defeat the purpose of keeping the client’s secrets confidential. The confidences would be disclosed during the course of rebutting the presumption by the attorney, or if the presumption was considered rebutted, the client might again be put into the anomalous position of having to show what confidences he entrusted to his attorney in order to prevent those confidences from being revealed. We conclude the presumption of disclosure is not susceptible of rebuttal by proof.”

We find this reasoning persuasive. Therefore, since Seagram has established that there is a substantial relationship between the matters involved in the work previously performed and the instant litigation, we will presume that confidential matters were disclosed during the course of that representation, and this presumption is not susceptible to proof to the contrary.

Plaintiffs next contend that the trial court erred in ruling that Schultz had not clearly and effectively rebutted the presumption that he shared in confidential information disclosed to Biro by Seagram. Initially, they argue that the trial court, and presumably this court, are bound to follow Federal precedents in the absence of Illinois case law. In support thereof, they cite the Committee Commentary to Canon 4 of the Illinois Code of Professional Responsibility (79 Ill. 2d Canon 4, Committee Commentary), which states in pertinent part:

“Resolution of [the extent to which a lawyer may properly represent interests adverse to those of a former client] is less a question of drafting than of case-by-case application of the relatively straightforward principle, embodied in Rule 4—101(b)(2), that a lawyer may not ‘use a confidence or secret of his client to the disadvantage of the client.’ A developing body of case law exists in this area. (See, e.g., Novo Terapeutisk Laboratorium A/S v. Baxter Travenol Laboratories, Inc. (7th Cir. 1979), 607 F.2d 186 and the series of Second Circuit cases culminating in Silver Chrysler Plymouth, Inc. v. Chrysler Motors Corp. (2d Cir. 1975), 518 F.2d 751.) These cases suggested the advisability of retaining the ABA language in order that ongoing interpretation of that language may be directly relevant to Illinois courts.”

They maintain that Novo, cited in the Committee Commentary, requires denial of disqualification under the facts of the instant case, argoing that the trial court, and again presumably this court, are bound by the rule established therein that the presumption that members of a firm share client confidences is rebuttable, and by the type of proof recognized in Novo as clearly and effectively rebutting that presumption.

Nothing in the above-quoted language appears to change the general rule that the decisions of the United States district courts and circuit courts are not binding on Illinois courts. (City of Chicago v. Groffman (1977), 68 Ill. 2d 112, 368 N.E.2d 891.) Of course, such decisions will be given respectful consideration (People ex rel. Swiderski v. Brierton (1978), 65 Ill. App. 3d 153, 382 N.E.2d 628), but will be adopted only to the extent that we find the rationale and reasoning thereof persuasive (Sorenson v. Fio Rito (1980), 90 Ill. App. 3d 368, 413 N.E.2d 47). Since the question raised by plaintiffs constitutes a matter of first impression before this court, it is appropriate under the circumstances that we consider the rule established by the Federal courts with regard to disqualification of an attorney who did not personally perform the actual legal services involved in the prior representation but was associated during the relevant time period with the attorney who did perform those services. The Seventh Circuit has refined the standard to be applied in a series of recent cases. It begins with the presumption that members of a law firm share their client’s confidences with one another; this presumption “recognizes not only the realities of law practice but also the ethical considerations of Canon 9: ‘A lawyer should avoid even the appearance of impropriety.’ ” (Novo Terapeutisk Laboratorium A/S v. Baxter Travenol Laboratories, Inc. (7th Cir. 1979), 607 F.2d 186, 196-97.) This standard was explained more fully in Freeman v. Chicago Musical Instrument Co. (7th Cir. 1982), 689 F.2d 715, 723:

“Accordingly, if an attorney can clearly and effectively show that he had no knowledge of the confidences and secrets of the client, disqualification is unnecessary and a court order of such might reasonably be regarded as an abuse of discretion. A district court, in resolving this issue, may of course rely on any of a number of factors, among them being the size of the law firm, the area of specialization of the attorney, the attorney’s position in the law firm, and the demeanor and credibility of witnesses at the evidentiary hearing.”

Furthermore, because these Canons are aimed not only at protecting the attorney-client relationship but also at maintaining public trust in the integrity of the Bar by avoiding even the appearance of impropriety, a very strict standard of proof must be applied, and any doubts as to the existence of a conflict resolved in favor of disqualification. (La Salle National Bank v. County of Lake (7th Cir. 1983), 703 F.2d 252.) Finally, where the present litigation seeks to attack the validity of the work performed during the prior representation, Canon 9 may require disqualification where there is even the slightest possibility that confidential information may be used to a former client’s disadvantage. See Schloetter v. Railoc of Indiana, Inc. (7 th Cir. 1976), 546 F.2d 706.

We find the above reasoning persuasive, since it strikes a balance between the former client’s right to protection of its confidences and secrets and the present client’s right to counsel of its own choosing, while also bearing in mind the need to prevent the appearance of impropriety. It is clear that the trial court also found these cases persuasive, since it adopted the very rule which plaintiffs now assert that it failed to follow. It appears from their argument that plaintiffs’ real concern is not the rule of law applied by the trial court, but its failure to find Novo factually dispositive. In Novo, defendant’s attorney represented it while a partner in the law firm representing the plaintiff in the action before the court. While a member of that firm, he had performed approximately hours of work on a matter substantially related to the pending suit, but left that firm prior to the commencement of the action. The motion was to disqualify plaintiff’s counsel, but defendant’s attorney did not allege in his affidavit that he shared any confidences with other members of the firm, and the remaining members stated that no information was received. The court found this evidence sufficient to clearly and effectively rebut the presumption that confidences were shared with other members of the firm.

Plaintiffs assert that the evidence in the instant action is identical and similarly undisputed. However, we are not persuaded that the evidence before the trial court was not in conflict. Here, contrary to plaintiffs’ assertion, Biro did allege in general terms that the information received from Seagram was shared. He stated that it was common practice during the 16 years in which he and Schultz were associated to discuss all client matters. Schultz, on the other hand, denied the existence of any such practice and stated categorically that Biro never shared any client confidences with him. In Freeman v. Chicago Musical Instrument Co. (7th Cir. 1982), 689 F.2d 715, the court found such general allegations and denials sufficient to create a question of fact. There, the plaintiff sought disqualification of the firm representing the defendant, alleging that an associate in that firm was formerly associated with its counsel. Plaintiff’s counsel alleged that it was a firm policy to distribute various legal opinions and memoranda to all lawyers in the firm and that members of the firm often discussed cases with each other. The associate in question averred byway of affidavit that he had no knowledge of anything related to his former firm’s representation of plaintiff and had not read the circulated memoranda and opinions. The court found that these affidavits created a factual question, thus distinguishing the case from Novo where the affidavits were “uncontradicted,” and remanded to the trial court for consideration of the factual question not previously considered by it, i.e., whether the presumption of shared confidences had been clearly and effectively rebutted.

It appears, then, that the conflicting affidavits here raised a question of fact, not a question of law as plaintiffs assert. Moreover, here, unlike Freeman, the trial court did consider the question and ruled thereon. Therefore, this court’s task on review is to determine whether the evidence supports the trial court’s finding. In this regard, plaintiffs argue that the trial court’s finding must be reversed because it failed to make detailed findings of fact. However, under Supreme Court Rule 366(b)(3)(i) (87 Ill. 2d R. 366(b)(3)(i)) such findings are not necessary to support the judgment or as a basis for review, and we presume that the trial court found all issues and controverted facts in favor of the prevailing party (National Acceptance Co. of America v. Pintura Corp. (1981), 94 Ill. App. 3d 703, 418 N.E.2d 1114).

Here, in addition to the affidavits in question, the trial court had before it evidence with regard to the size of the law firm, Schultz' position therein, and his experience in representing firms such as Seagram, all relevant factors in determining whether the presumption has been rebutted. (See La Salle National Bank v. County of Lake (7th Cir. 1983), 703 F.2d 252.) The trial court was aware that, during the relevant time period, Schultz, Biro & Karmel was a four-member firm. Schultz admits that at the very least Biro was an employee, although it does appear that the firm held itself out to the public, including Seagram, as a partnership; however, the exact relationship is immaterial, so long as they were in some way associated in the practice of law. (See Silver Chrysler Plymouth, Inc. v. Chrysler Motors Corp. (2d Cir. 1975), 518 F.2d 751.) Although Schultz attempts to refute the existence of a relationship, the trial court could well have found otherwise, given the fact that letters were sent to clients under the firm name, including by Schultz, that in writing to clients the attorneys, including Schultz, used the plural “we” in referring to services performed, and that clients were billed by the firm. Therefore, given the size of the firm, Schultz’ position therein as employer/senior partner, and his experience in the type of work undertaken on Seagram’s behalf, the trial court could well have found Biro’s assertion that confidences were regularly shared more credible than Schultz’ categorical denial. At best, the evidence created some doubt and, given the strict burden of proof plaintiffs bear, we cannot say that the trial court abused its discretion in this matter.

Moreover, any doubts raised should be resolved in favor of disqualification, particularly in a case such as this where the work performed during the prior representation is being attacked. In Schloetter v. Railoc of Indiana, Inc. (7th Cir. 1976), 546 F.2d 706, the plaintiff in a patent infringement action moved to disqualify defendant’s counsel. A former member of that law firm had represented plaintiff in connection with his patent application, but had since left the firm. There, the court found that the inference that other members of the firm shared in confidential information had not been sufficiently rebutted; it then went on to note:

“Moreover, we think the district court’s strict enforcement of Canon 9 was particularly appropriate in a case such as this where the subject matters involved in the former and present representations are so closely related. The validity and scope of the very patent Mr. Jeffrey, while a Donnelly partner, helped to procure is at issue in the pending infringement action. In these circumstances, all doubt should be resolved in favor of disqualification in order to ‘prevent any possibility, however slight, that confidential information acquired from *** [Schloetter] during a previous relationship may *** be used to *** [Schloetter’s] disadvantage’ in this case. [Citation.]” (546 F.2d 706, 712.)

Similarly, here, the trial court found, and plaintiffs do not dispute, that the instant action challenges the very work performed during the prior representation. Under the circumstances, if even the slightest possibility exists that confidential information may have been communicated to Schultz, Canon 9 requires disqualification.

Nevertheless, plaintiffs further argue that, in the light of the conflicting evidence presented by the affidavits, the trial court erred in disqualifying Schultz without first conducting an evidentiary hearing, citing Freeman v. Chicago Musical Instrument Co. (7th Cir. 1982), 689 F.2d 715. They maintain that the record here contains no more facts than were before the court in Freeman, wherein the appeals court remanded with directions that the trial court hold an evidentiary hearing and make findings of fact with regard to the question whether the presumption had been rebutted.

As noted above, we believe that there is sufficient evidence to support the trial court’s determination; furthermore, unlike the situation in Freeman, the trial court here did consider the issue and make a finding that the evidence was insufficient to rebut the presumption. Plaintiffs had ample opportunity below to present whatever evidence they desired with regard to the motion, and, despite indications from the trial court that it was willing to receive additional evidence, plaintiffs did not even request an evidentiary hearing until after the trial court had ruled and they were seeking to have it vacate that order. The trial court apparently concluded, and we agree, that it had sufficient information upon which to base its determination. However, if there was additional evidence which plaintiffs could have presented, they were aware from the time the motion was filed that the burden was on them to produce it; they will not be heard to complain now that they did not produce enough in the absence of any indication that the court would not have received it had it been offered. It is axiomatic that there can be no error in failing to receive evidence that was never offered. See In re Marriage of Lee (1979), 78 Ill. App. 3d 1123, 398 N.E.2d 126; Liberty Mutual Insurance Co. v. Williams Machine & Tool Co. (1974), 21 Ill. App. 3d 510, 316 N.E.2d 255.

Finally, plaintiffs contend that the trial court erred in disqualifying Schultz from representing them in this action against Federated. It is undisputed that Federated has never been represented by Schultz, Biro, or any other attorney ever associated with Schultz and that Seagram and Federated are entirely separate and unrelated corporations. Nevertheless, Federated argues in conclusory terms that “[tjhis ethical principal [sic] must also be applied to Federated, since Schultz was privy to Federated’s business secrets through his former representation of Seagram. It is only reasonable to assume that in undertaking changes in its corporate structure, Seagram had to disclose some of the secrets of its main distributor, Federated.”

Even if we were to make the unsupported assumption urged upon us by Federated, it is clear by their very terms that Canons 4 and 9 protect only clients and former clients. We see no basis in logic or precedent for extending their coverage to anyone who might have done business with a client or former client, and conclude that Federated is not protected in the instant case by Canons 4 and 9 of the Illinois Code of Professional Responsibility. Accordingly, that portion of the order which disqualifies Schultz and the law firm of Schultz & Schultz from representing plaintiffs in this action against Federated is reversed. We note also Seagram’s argument that Schultz should be disqualified from representing plaintiffs against any defendant in this action because there is a danger that information acquired as a result of the prior representation will be disclosed, even inadvertently, in the course of Schultz’ work with co-counsel, and we believe that if Schultz continues in his representation of plaintiffs in their action against Federated that the court should grant a severance on motion of any party.

For the foregoing reasons, the trial court’s order disqualifying Schultz and his law firm from representing plaintiffs is affirmed as to defendant Seagram but reversed as to defendant Federated and the cause is remanded for further proceedings.

Affirmed in part, reversed in part, and remanded for further proceedings.

WILSON, P.J., and MEJDA, J., concur.

      Biro is co-counsel for Seagram in the present action.

      Plaintiffs’ motion to sever was denied without prejudice because it was made by Schultz after entry of the order disqualifying him.