we represent the applebee's the defendants in this matter ok we have read your briefs i would suggest you stick to what points you think are his strongest and we will question around what we think it's  it please the court my name is kelly dudley and i represent the homeowners in this case this case is about honoring an agreement the homeowners who are the plaintiffs in this case and the defendant a developer planning to construct a defendant's development would violate the agreement which the homeowner seek to enforce the plaintiffs in defendant's own property within the same subdivision properties within that subdivision are subject to an agreement in this case  cases they are separated by public alleyways the cabinet also requires that buildings are residential properties be set back at least twenty feet from the property line with certain exceptions for bay window private matter of a restrictive covenant so they did the new class which was a faith in the public in some of the clients did go to public hearings your honor there were depositions at which they were asked if they went to public hearings they did some of them go to public hearings and talk about having to put their name on a sheet to talk and things like that and in addition mr brewer who is someone who lives near the subdivision and knows many of the homeowners twenties so to look back to what they knew at the one nine hundred ten some twenty's we would have to look back to what they considered to be a porch or a bay window in those days the burden i under here never did that they never showed us how or why these up alleged projections were not were not within the definition of they windows and and things like that and in addition your honor we were not required to show exactly what was in the mind of the defendant no person can ever show what's in the mind of another person and the court often ha to make tough calls there fortunately the court has already done that for us in a second just for a case from one nine hundred eighty five which i state which we cite extensively in our brief and the c about halfway through the litigation the builder said ok we changed our minds will make those buildings strictly residential we put in the white house and they moved to dismiss the case on the basis that it had been  because it would not only not have a set back but over the sidewalk significantly so there was a less than zero setback and then again addition there were going to be commercial uses even though we did put relying on covenants from a long time ago don't have that kind of committee but you say this is a classic chicago neighborhood and that's one of the points these are classic chicago style bungalows in one of the most look at communities that are subject to certain covenants and we choose not to move into them i myself i'm a little bit as you indicated a free spirit and but want to live in a gated community but that's why property  been throughout history for concerned people like mr brewer we wouldn't have done things like set aside babbar strict covenants that were based on things like race we would have private parties like fair housing housing and things like that so we do have in our society private individuals who get out and talk to people and tell them about their rights mr brewer seems to be one of those types of activists however in this case it is not brewer versus a d m we have approximately ten homeowners who came into the case that indicated an interest in the court for relief that happens that there's an allegation that mr brewer is the one who brought to their attention that they have legal rights what he believes were their legal rights only the court can decide if they have those legal right applied to the court for time to take a step a solution and there are plenty of cases where that has happened trials have even been continued so depositions could be taken and to aggravate the situation here we were working at all times architectural plans and say this set of architectural plans means this it would have done up all to do that kind of testimony instead he was able to as a kind of building he was unable to do that and instead where we did want his testimony in what would be a belt we have to go through something of a rigamarole where he would say i'm looking at a piece of paper and there's a dotted line and the dotted line the thinking that we had mr brewer's testimony as we had it and again on a very expedited schedule your honour's we were not aware until the last minute that mr brewer would not be testified so at that point we would have been disclosing a whole new witness because everyone knew that we were operating under an accelerated schedule we didn't have the typical time to prepare our case and it was a very complex case we were coerced by having him excluded at the last minute when you're under an accelerated schedule you get the people on that you need to and you to punish the people that you need to and the kind of trial tactic that you're suggesting is an excellent one but our court system is not just open to people who can afford to bring in an expert witness and we since ted went through considerable hoops to get our testimony in and through someone who was characterized as a light witness and i think another important thing here when we talk about gamesmanship that was unique in this case is that there was never any close of discovery i'm in this case so the rules say you have to disclose someone before the close of discovery i'll acknowledge i'm fairly new lawyer and fairly naive and fairly idealistic that concerned about knowing that discovery was done and that it was sad and these were the documents we were going to have and these were the witnesses they could have moved the court for the close of discovery and they didn't do that if you do not have surveys here that have their plans we did your honor and we use the terms but we only got we only sponsored them with lay witness testimony we didn't have someone who came in and  we were able to get that information into the record please the court i just need to correct one thing just to begin with the record will show that there were no surveys no plans put into evidence by the plaintiffs in this particular matter that was not done on page eleven of their brief in this case it is uncontroverted that the restrictive come in existed and that the property was subject to it instead of finding that the company did not exist with the defendants did not have notice of the covenant the trial court based its findings on a mistake of law any because they can come back and do can do it again so those cases don't stand for the proposition that they don't have to show a violation they have to show a violation my read of the amoco case to in it's fact shows that in addition to operating a business from their home the motto banos constructed for stone square lycos which were measured with feet high and two feet wide so they had constructed these alleged violations and they were in existence at the time disk fail at summary judgment and trial to present any documents which show the size of the site where the building would be located and where specific uses would be take place for these reasons alone the trial court properly property yes judge i do have to emphasize that they did not as far as witnesses are concerned they didn't call anyone from the city they didn't call any other people who would possibly identify a document showing they were claiming that there was a that was a case in which the move the battles case was there was an accounting issue and summary judgment and there was a breach of producer sherry issue with regard to the trial so it has nothing to do with the kind of case that we're dealing with the cases we cite show in fact there's definitely more than you the only thing that they they presented was these are answers to harvest twenty two or twenty three of the complaint with regard to those answers in both of those they made allegations that the plant there's commercial space and rockwell no other space on rockwell that has a commercial space other than a parking lot has thirty single family condominiums parking for two hundred fifteen cars that's all true now the question is yes that's exactly right and that's why that's that and no this was put into evidence with regard to the motion for summary judgment and with regard to the fact issues and i just want to just  trial and the child quite properly held a trial that in fact they have not proved their case that in fact they had put on a have any evidence to show and that's why the trial which stated in its decision with regard to the motion for directed finding i'll be honest i'm surprised i didn't dissipated that either through stipulation with through some witnesses someone would testify that what the defendant is with posing to be built would violate these covenants and i don't have that in all honesty i don't have that and that's the ruling and it's a proper role now with regard to there are some other issues with regard to like you said they brought up i do believe that there were certain items brought up in the in the reply brief that were waived they were by for the first witness he was not identified at all and it either as an expert or a late witness and how's that you depose we depose him because you've been so involved in this matter from the very beginning that we felt in order to prepare our case we would take his deposition on any fact issues that he had we didn't then then after that on april twenty to two thousand and eight the court ruled that all deaths would have to be completed by made the thirteenth they were took a final depositions by may twenty seventh that's the first time after this discretion for the court then to exclude it but on the basis that it may have been quite of the thousands of documents that were delivered during the course of discovery the follow that argument would put the rule on exhibits exhibit this would make it useless place would always just  misspoke when i referred to mr brewer testifying about surveys he spoke about plans so i simply used careless language when i was lumping together surveys implants and things like that certainly as people who are attorneys and to get around certain objections we sometimes had implemented a line and say this was a building line and things like that we did that with mr brewer with ms lohman i with mr loman who is also an architect and with ms whitley who is a party who is also an architect none of them were doing expert testimony we got their knowledge again through a rather clever line of questioning that enabled them to look at a publicly posted document and testify about what they saw and they used their five senses not their opinions formulated inside their brains as a result of knowing architecture school and i think they had on a shoestring and at the last minute i have to say i think that we did an unusually good job of getting that ian and that we were able to show the violations which is one of the things that this case comes down to us by the defendants during discovery and they objected and the court agreed with them that that wasn't sufficient disclosure of course i returned to my point that these things could have been dealt with prior to tr we could have had a close of discovery but we were on an expedited discovery schedule at defendants urging at all times so i think we did a good job with the papers we ended up having in court and the witnesses in court which all of our witnesses got to testify it was just the difference of whether mr brewer got to testify as an e