Enbridge Pipeline (Illinois), LLC v. Kiefer ( 2017 )

2017 IL App (4th) 150342
NOS. 4-15-0342, 4-15-0344, 4-15-0345, 4-15-0348, 4-15-0351, 4-15-0353, 4-15-0354,
4-15-0355, 4-15-0356, 4-15-0357, 4-15-0358, 4-15-0359, 4-15-0361,
4-15-0363, 4-15-0364, 4-15-0366, 4-15-0368, 4-15-0369 cons.
IN THE APPELLATE COURT FILED
July 6, 2017
OF ILLINOIS Carla Bender
4th District Appellate
FOURTH DISTRICT Court, IL
ENBRIDGE PIPELINE (ILLINOIS), LLC, ) Appeal from
n/k/a Illinois Extension Pipeline Company, LLC, ) Circuit Court of
Plaintiff-Appellee, ) McLean County
v. (No. 4-15-0342) ) No. 14ED2
LARRY KIEFER, ALL OTHER FARM OWNERS, )
NONRECORD CLAIMANTS, and UNKNOWN )
OWNERS, )
Defendants-Appellants. )
____________________________________________ )
ENBRIDGE PIPELINE (ILLINOIS), LLC, ) No. 14ED3
n/k/a Illinois Extension Pipeline Company, LLC, )
Plaintiff-Appellee, )
v. (No. 4-15-0344) )
JAMES ONDECK, NONRECORD CLAIMANTS, )
and UNKNOWN OWNERS, )
Defendants-Appellants. )
____________________________________________ )
ENBRIDGE PIPELINE (ILLINOIS), LLC, ) No. 14ED4
n/k/a Illinois Extension Pipeline Company, LLC, )
Plaintiff-Appellee, )
v. (No. 4-15-0345) )
BARBARA KIEFER, NONRECORD CLAIMANTS, )
and UNKNOWN OWNERS, )
Defendants-Appellants. )
____________________________________________ )
ENBRIDGE PIPELINE (ILLINOIS), LLC, ) No. 14ED6
n/k/a Illinois Extension Pipeline Company, LLC, )
Plaintiff-Appellee, )
v. (No. 4-15-0348) )
DUANE GUTH, Now Succeeded by Alice J. Guth, as )
Trustee of the Guth Family Trust; NONRECORD )
CLAIMANTS; and UNKNOWN OWNERS, )
Defendants-Appellants. )
)
)
ENBRIDGE PIPELINE (ILLINOIS), LLC, ) No. 14ED10
n/k/a Illinois Extension Pipeline Company, LLC, )
Plaintiff-Appellee, )
v. (No. 4-15-0351) )
LAND TRUST NO. 163, Dated February 16, 2006; )
DOUGLAS NELSON; BEVERLY NELSON; )
NONRECORD CLAIMANTS; and UNKNOWN )
OWNERS, )
Defendants-Appellants. )
____________________________________________ )
ENBRIDGE PIPELINE (ILLINOIS), LLC, ) No. 14ED11
n/k/a Illinois Extension Pipeline Company, LLC, )
Plaintiff-Appellee, )
v. (No. 4-15-0353) )
FREED AGRICULTURAL SERVICE, INC.; )
NONRECORD CLAIMANTS; and UNKNOWN )
OWNERS, )
Defendants-Appellants. )
____________________________________________ )
ENBRIDGE PIPELINE (ILLINOIS), LLC, ) No. 14ED13
n/k/a Illinois Extension Pipeline Company, LLC, )
Plaintiff-Appellee, )
v. (No. 4-15-0354) )
BLAKE LEARNED and DIANE YOUNT, as Co- )
executors of the Estates of Wendell Learned and )
Louise Learned; NONRECORD CLAIMANTS; and )
UNKNOWN OWNERS, )
Defendants-Appellants. )
____________________________________________ )
ENBRIDGE PIPELINE (ILLINOIS), LLC, ) No. 14ED14
n/k/a Illinois Extension Pipeline Company, LLC, )
Plaintiff-Appellee, )
v. (No. 4-15-0355) )
OSWEGO COMMUNITY BANK, as Trustee Under )
the Provisions of a Certain Trust Agreement, Dated )
December 17, 1999, known as the Trust Number 187; )
WILLIAM HACKER; LORRAINE HACKER; )
NONRECORD CLAIMANTS; and UNKNOWN )
OWNERS, )
Defendants-Appellants. )
)
)
)
)
)
)
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ENBRIDGE PIPELINE (ILLINOIS), LLC, ) No. 14ED15
n/k/a Illinois Extension Pipeline Company, LLC, )
Plaintiff-Appellee, )
v. (No. 4-15-0356) )
HINTHORN FAMILY LTD PARTNERSHIP, )
NONRECORD CLAIMANTS, and UNKNOWN )
OWNERS, )
Defendants-Appellants. )
____________________________________________ )
ENBRIDGE PIPELINE (ILLINOIS), LLC, ) No. 14ED16
n/k/a Illinois Extension Pipeline Company, LLC, )
Plaintiff-Appellee, )
v. (No. 4-15-0357) )
AMB HOLDINGS LLC, NONRECORD )
CLAIMANTS, and UNKNOWN OWNERS, )
Defendants-Appellants. )
____________________________________________ )
ENBRIDGE PIPELINE (ILLINOIS), LLC, ) No. 14ED18
n/k/a Illinois Extension Pipeline Company, LLC, )
Plaintiff-Appellee, )
v. (No. 4-15-0358) )
CRAIG ARMSTRONG, as Successor Trustee to Nina )
S. Armstrong Under the Provisions of a Trust )
Agreement dated December 17, 1999, and Known as )
The Nina S. Armstrong Trust; NONRECORD )
CLAIMANTS; and UNKNOWN OWNERS, )
Defendants-Appellants. )
____________________________________________ )
ENBRIDGE PIPELINE (ILLINOIS), LLC, ) No. 14ED20
n/k/a Illinois Extension Pipeline Company, LLC, )
Plaintiff-Appellee, )
v. (No. 4-15-0359) )
CAROL K. HOLSTINE, NONRECORD )
CLAIMANTS, and UNKNOWN OWNERS, )
Defendants-Appellants. )
____________________________________________ )
ENBRIDGE PIPELINE (ILLINOIS), LLC, ) No. 14ED30
n/k/a Illinois Extension Pipeline Company, LLC, )
Plaintiff-Appellee, )
v. (No. 4-15-0361) )
JEAN SNYDER, Trustee of the Jean Snyder )
Revocable Trust Dated December 6, 2006; )
NONRECORD CLAIMANTS; and UNKNOWN )
OWNERS, )
Defendants-Appellants. )
)
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ENBRIDGE PIPELINE (ILLINOIS), LLC, ) No. 14ED32
n/k/a Illinois Extension Pipeline Company, LLC, )
Plaintiff-Appellee, )
v. (No. 4-15-0363) )
MARK S. HINES and JANA HINES, NONRECORD )
CLAIMANTS, and UNKNOWN OWNERS, )
Defendants-Appellants. )
____________________________________________ )
ENBRIDGE PIPELINE (ILLINOIS), LLC, ) No. 14ED34
n/k/a Illinois Extension Pipeline Company, LLC, )
Plaintiff-Appellee, )
v. (No. 4-15-0364) )
FRANK ROOP; HEIDI ROOP; WILLIAM ROOP, )
JR.; BETTY LIVINGSTON; LISA JONES; )
NONRECORD CLAIMANTS; and UNKNOWN )
OWNERS, )
Defendants-Appellants. )
____________________________________________ )
ENBRIDGE PIPELINE (ILLINOIS), LLC, ) No. 14ED35
n/k/a Illinois Extension Pipeline Company, LLC, )
Plaintiff-Appellee, )
v. (No. 4-15-0366) )
DANIEL F. LAY, NONRECORD CLAIMANTS, and )
UNKNOWN OWNERS, )
Defendants-Appellants. )
____________________________________________ )
ENBRIDGE PIPELINE (ILLINOIS), LLC, ) No. 14ED50
n/k/a Illinois Extension Pipeline Company, LLC, )
Plaintiff-Appellee, )
v. (No. 4-15-0368) )
MARK IRVING ANDREWS, Trustee of the Virgil L. )
Andrews Trust Dated May 3, 1995; NONRECORD )
CLAIMANTS; and UNKNOWN OWNERS, )
Defendants-Appellants. )
____________________________________________ )
ENBRIDGE PIPELINE (ILLINOIS), LLC, ) No. 14ED51
n/k/a Illinois Extension Pipeline Company, LLC, )
Plaintiff-Appellee, )
v. (No. 4-15-0369) )
TIMOTHY C. KRAFT, NONRECORD )
CLAIMANTS, and UNKNOWN OWNERS, ) Honorable
Defendants-Appellants. ) Paul G. Lawrence,
) Judge Presiding.
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JUSTICE STEIGMANN delivered the judgment of the court, with opinion.
Justices Holder White and Pope concurred in the judgment and opinion.
OPINION
¶1 In April 2014, the Illinois Commerce Commission (Commission) granted
plaintiff, Enbridge Pipeline (Illinois), LLC, now known as the Illinois Extension Pipeline
Company, LLC (IEPC), eminent-domain authority to acquire easements over certain real estate
for the planned construction of an approximately 170-mile liquid petroleum (oil) pipeline known
as the Southern Access Extension (SAX project).
¶2 During the months of June and July 2014, IEPC filed separate “complaints for
condemnation of permanent and temporary easements for common-carrier pipeline”
(condemnation complaints) against the following defendants: (1) Larry Kiefer (McLean County
case No. 14-ED-2 and this court’s case No. 4-15-0342); (2) James Ondeck (McLean County case
No. 14-ED-3 and this court’s case No. 4-15-0344); (3) Barbara Kiefer (McLean County case No.
14-ED-4 and this court’s case No. 4-15-0345); (4) Duane Guth (McLean County case No. 14-
ED-6 and this court’s case No. 4-15-0348); (5) Land Trust No. 163, Douglas Nelson, and
Beverly Nelson (McLean County case No. 14-ED-10 and this court’s case No. 4-15-0351);
(6) Freed Agricultural Service, Inc. (McLean County case No. 14-ED-11 and this court’s case
No. 4-15-0353); (7) Blake Learned and Diane Yount (McLean County case No. 14-ED-13 and
this court’s case No. 4-15-0354); (8) Oswego Community Bank, William Hacker, and Lorraine
Hacker (McLean County case No. 14-ED-14 and this court’s case No. 4-15-0355); (9) Hinthorn
Family Limited Partnership (McLean County case No. 14-ED-15 and this court’s case No. 4-15-
0356); (10) AMB Holdings, LLC (McLean County case No. 14-ED-16 and this court’s case No.
4-15-0357); (11) Craig Armstrong (McLean County case No. 14-ED-18 and this court’s case No.
4-15-0358); (12) Carol K. Holstine (McLean County case No. 14-ED-20 and this court’s case
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No. 4-15-0359); (13) Jean Snyder (McLean County case No. 14-ED-30 and this court’s case No.
4-15-0361); (14) Mark S. Hines and Jana Hines (McLean County case No. 14-ED-32 and this
court’s case No. 4-15-0363); (15) Frank Roop, Heidi Roop, William Roop, Jr., Betty Livingston,
and Lisa Jones (McLean County case No. 14-ED-34 and this court’s case No. 4-15-0364);
(16) Daniel F. Lay (McLean County case No. 14-ED-35 and this court’s case No. 4-15-0366);
(17) Mark Irving Andrews (McLean County case No. 14-ED-50 and this court’s case No. 4-15-
0368); and (18) Timothy C. Kraft (McLean County case No. 14-ED-51 and this court’s case No.
4-15-0369) (collectively, landowners). IEPC’s condemnation complaints sought to obtain right-
of-way and easement interests in landowners’ respective properties and determine just
compensation for its interests.
¶3 In February 2015, IEPC filed a motion for summary judgment under section 2-
1005 of the Code of Civil Procedure (Civil Code) (735 ILCS 5/2-1005 (West 2014)), arguing
that no genuine issue of material fact existed regarding the just compensation IEPC should pay to
landowners for its right-of-way and easement interests. After landowners responded to IEPC’s
summary judgment motion, IEPC essentially contended that because (1) landowners had failed
to file counteraffidavits opposing IEPC’s motion for summary judgment as required by Illinois
Supreme Court Rule 191(a) (eff. Jan. 4, 2013) and (2) IEPC properly complied with Rule 191(a)
by filing affidavits in support of its motion, IEPC was entitled to judgment as a matter of law on
the issue of just compensation. Following a March 2015 hearing, the trial court granted IEPC’s
summary judgment motion and awarded landowners just compensation totaling $332,000.
¶4 Landowners appeal, raising numerous claims that challenge the trial court’s grant
of summary judgment in IEPC’s favor. We affirm.
¶5 I. BACKGROUND
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¶6 A. Procedural History
¶7 In Enbridge Energy (Illinois), L.L.C. v. Kuerth, 2016 IL App (4th) 150519, ¶¶ 6-
23, 69 N.E.3d 287, and Enbridge Pipeline (Illinois), LLC v. Hoke, 2017 IL App (4th) 150544, ¶¶
6-23, this court chronicled the extensive procedural history regarding IEPC’s intent to (1)
construct, operate, and maintain the SAX project under section 15-401 of the Common Carrier
by Pipeline Law (Pipeline Law) (220 ILCS 5/15-401 (West 2006)) and (2) acquire, when
necessary, private property under eminent-domain authority to install the SAX project as
permitted by section 8-509 of the Public Utilities Act (220 ILCS 5/8-509 (West 2006)). Because
the issues presented in the instant case do not require a comprehensive historical review to place
landowners’ appeals in context, we provide the following brief synopsis.
¶8 In July 2009, the Commission granted IEPC a certificate in good standing, which
authorized construction of the SAX project. The Commission, however, denied IEPC’s request
for eminent-domain authority, urging, instead, that IEPC continue negotiations with recalcitrant
landowners who had declined IEPC’s compensation offers. The Commission advised IEPC that
it could renew its request for eminent-domain authority by demonstrating that it had made
reasonable attempts to obtain easements from landowners through good-faith negotiations. Some
affected landowners (intervenors) appealed the Commission’s grant of a certificate in good
standing, and this court affirmed. Pliura Intervenors v. Illinois Commerce Comm’n, 405 Ill. App.
3d 199, 200, 942 N.E.2d 576, 578 (2010).
¶9 In July 2013, IEPC renewed its request for eminent-domain authority, seeking to
condemn specific tracts of land traversed by the planned SAX project route because the owners
of those respective properties had either (1) refused to negotiate with IEPC or (2) declined
IEPC’s compensation offers despite extensive negotiations. Following a December 2013
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administrative hearing, an administrative law judge (ALJ) recommended that the Commission
grant IEPC eminent-domain authority. The Commission later accepted the ALJ’s
recommendation. Intervenors affected by the Commission’s grant of eminent-domain authority
appealed, and this court affirmed. Pliura Intervenors v. Illinois Commerce Comm’n, 2015 IL
App (4th) 140592-U.
¶ 10 In May 2014, IEPC filed a “Motion to Reopen and Amend Order Concerning
Diameter of the [SAX project],” requesting an amendment to the July 2009 certificate in good
standing the Commission had issued. Specifically, IEPC sought to reduce the diameter of the
SAX project from 36 to 24 inches. In December 2014, the ALJ recommended that the
Commission grant IEPC’s amendment, subject to certain conditions. The Commission later
determined that public convenience and necessity required issuance of an amended certificate to
authorize a 24-inch pipeline. Intervenors appealed, and this court affirmed the Commission’s
order. Pliura Intervenors v. Illinois Commerce Comm’n, 2016 IL App (4th) 150084-U.
¶ 11 B. The Pertinent Events and the Parties’ Filings Preceding
IEPC’S Motion for Summary Judgment
¶ 12 Beginning in May 2014, IEPC made final offers to each landowner in exchange
for a permanent easement and a separate temporary work-space area to be used during
construction of the SAX project. In total, IEPC sought (1) permanent easements traversing
approximately 55.17 acres of landowners’ parcels and (2) temporary easements traversing
approximately 66.04 acres landowners’ parcels. In exchange for its aggregate land interests,
IEPC offered landowners total compensation of approximately $1,347,813.
¶ 13 During June and July 2014—after landowners had either rejected or did not
respond to IEPC’s final offers—IEPC filed separate condemnation complaints, seeking to obtain
right-of-way and easement interests in landowners’ respective properties and to determine just
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compensation for both interests. (Per the parties’ August 2014 agreement the trial court
consolidated landowners’ cases.)
¶ 14 In October 2014, landowners disclosed their controlled expert witnesses: (1) Dale
Aupperle, a licensed real estate broker; (2) Jeremy Crouch, a licensed real estate appraiser; and
(3) Royce Don Deaver, a registered professional mechanical engineer. See Ill. S. Ct. R. 213(f)(3)
(eff. Jan. 1, 2007) (defining a controlled expert witness as a “party’s retained expert” and
outlining the mandatory disclosure requirements that the party calling the expert must satisfy).
¶ 15 In December 2014, landowners filed a counterclaim, seeking compensation for
the damage to the remainder of their respective parcels caused by the impending installation of
the SAX project. That month, landowners also filed “The McLean County SAX Pipeline Farm
Valuation Report,” written by Aupperle and Crouch. The substance of that report provided
opinions as to the fair-market value of IEPC’s interests in landowners’ respective properties. The
report divided the valuation into the following three categories: (1) permanent easements,
(2) temporary easements, and (3) damages to the remainder of the respective properties
following the installation of the SAX project. Despite mentioning that the report was a
“collaborative effort” between Aupperle and Crouch, the report confirmed that the valuation
opinions and conclusions expressed therein were made solely by Aupperle. (Hereinafter, we refer
to the McLean County SAX pipeline farm valuation report as the “Aupperle report” and attribute
the valuation opinions and conclusions contained therein to Aupperle.)
¶ 16 In February 2015, landowners filed a report written by Deaver in which he
provided expert opinions regarding the risks landowners would assume after installation of the
SAX project. Deaver noted such risks included (1) the consequences that arise after an oil spill,
(2) the potential for an oil company to prioritize profits over public safety, (3) the lack of
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effective deterrents for an oil company’s safety violations, and (4) a landowner’s inability to
protect their interests by, for instance, obtaining insurance against such risks. (Deaver’s report is
not at issue in this appeal because neither party relied on that report during the March 2015
hearing on IEPC’s motion for summary judgment.)
¶ 17 In March 2015, landowners entered into a settlement agreement with IEPC in
which they granted IEPC early access to their respective properties. The pertinent provisions of
that agreement are as follows:
“2. In exchange for a payment to [landowners] in the amount(s) contained
in Exhibit 1 ***, *** IEPC shall have access to the Subject Property for the
purpose of constructing, maintaining, and operating the SAX [project]
immediately after the execution of this Agreement and payment of consideration
described herein;
***
6. The consideration paid pursuant to this Agreement shall be credited and
shall be a set-off to any jury award for just compensation and/or damages in the
pending condemnation cases ***, except the amount identified as crop loss;
***
8. Nothing herein shall impair the right of [landowners] to appeal any
decision relating to just compensation ***; however, each [of the landowners]
waives [his or her] right to raise any issue that could have been presented in a
Traverse and Motion to Dismiss, including a waiver of any challenge to IEPC’s
right to construct, operate, and maintain the SAX [project] and to exercise
eminent domain authority[.]”
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¶ 18 “ ‘A traverse and motion to dismiss challenge plaintiff’s right to condemn
defendants’ property.’ ” Enbridge Energy (Illinois), L.L.C. v. Kuerth, 2016 IL App (4th) 150519,
¶ 51, 69 N.E.3d 287 (quoting Lake County Forest Preserve District v. First National Bank of
Waukegan, 154 Ill. App. 3d 45, 51, 506 N.E.2d 424, 428 (1987)). The total compensation IEPC
paid to landowners in exchange for the early access was $2,174,916.
¶ 19 C. The Issue on Appeal
¶ 20 1. IEPC’s Motion for Summary Judgment
¶ 21 In February 2015, IEPC filed a motion for summary judgment on the issues of
just compensation and damages to the remainder. Appended to IEPC’s summary judgment
motion were the following three documents.
¶ 22 IEPC appended a “Real Estate Appraisal Project Summary” report by Edward J.
Batis, an Illinois certified general real estate appraiser, in which Batis summarized the “essential
components of the appraisal process” applicable to each of the individual properties he
appraised. Batis included 18 supplemental reports detailing the just compensation and remainder
damage valuations he computed for each landowners’ respective properties. Also included was a
February 2015 affidavit in which Batis affirmed that his appraisals complied with the Uniform
Standards of Professional Appraisal Practice (USPAP) and the Code of Professional Ethics of the
Appraisal Institute. Batis also affirmed that he had personal knowledge of the land valuation
appraisals and, if required, he would testify competently to the content of his summary and
supplemental reports.
¶ 23 IEPC also attached a “Real Estate Appraisal Report Project Summary” by W.
Bradley Park, an Illinois certified general real estate appraiser, in which Park provided his
opinions regarding the appropriate just compensation for the 18 parcels at issue. Park appended
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separate supplemental report summaries, which provided detailed descriptions of landowners’
properties, a highest and best use analysis, and an examination of the “impact of the taking on
the market values of the remainder properties.” Park added that his intent was to “provide
sufficient detail and information to understand the opinions set forth in each of the separate
reports.” Park signed a February 2015 affidavit, affirming that his appraisals complied with the
USPAP and the Code of Professional Ethics of the Appraisal Institute. Park also affirmed that he
had personal knowledge of the aforementioned reports and, if required, he would testify
competently to the content contained therein.
¶ 24 IEPC also appended to its summary judgment motion the Aupperle report. In its
memorandum in support of its summary judgment motion, IEPC challenged the admissibility of
the Aupperle report by characterizing it as “nothing short of an outrageous set of unqualified,
baseless, purely speculative, and highly prejudicial statements that fail to meet any standard for
admissibility under Illinois law.”
¶ 25 2. Landowners’ Response to IEPC’s Summary Judgment Motion
and IEPC’s Reply
¶ 26 On March 25, 2015, landowners filed a response to IEPC’s motion for summary
judgment. Landowners argued generally that (1) the valuation opinions in the Aupperle report
were credible and admissible and (2) the USPAP standard had not been adopted by Illinois. The
sole attachment to landowners’ response was an October 2014 article from Illinois Realtor
Magazine (Elizabeth A. Urbance, BPOs and CMAs to Become Licensed Activities Under the
Illinois Real Estate License Act of 2000, Illinois Realtor, Oct. 2014, at 22,
http://www.illinoisrealtor.org/node/3662 (last visited May 25, 2017) (“BPO” is an acronym for
“broker price opinions,” and “CMA” is an acronym for “comparative market analyses”)).
Landowners did not file any counteraffidavits with their response.
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¶ 27 Later that month, landowners filed a “Supplement of Facts Supporting
[Landowners’] Response to [IEPC’s] Motion for Summary Judgment.” Landowners’ filing—
which was not signed or sworn—contained 173 pages of information segregated as follows: (1)
an excerpt taken from IEPC’s website listing “reportable spills” for 2010; (2) Marathon
Petroleum Company’s ownership, shipping commitment, and proposed use of the SAX project;
(3) IEPC’s original request for a certificate in good standing; (4) IEPC’s established route for the
SAX project; (5) excerpts from a McLean County zoning ordinance; (6) two September 2009
letters from IEPC, conveying offers to specific landowners; (7) Deaver’s curriculum vitae; (8) a
printout purporting to show that Aupperle is a licensed real estate broker; and (9) various maps
showing different IEPC pipeline routes.
¶ 28 Shortly thereafter, IEPC filed a reply to landowners’ response, renewing its
assertions that it was entitled to judgment as a matter of law. Specifically, IEPC noted that in
their response, landowners “proffer no affidavits, no reports, no exhibits, and no judicial analyses
to the court.” IEPC’s reply also noted that in condemnation proceedings involving landowners
from De Witt County, the trial court there had barred Aupperle’s valuation opinions.
¶ 29 3. The Hearing on IEPC’s Motion for Summary Judgment
¶ 30 At the March 2015 hearing on IEPC’s motion for summary judgment, the parties’
arguments focused on the admissibility of the Aupperle report. IEPC characterized the Aupperle
report as fatally flawed. Landowners challenged (1) the applicability of the case law IEPC relied
upon, (2) the claims IEPC raised concerning the credibility of the Aupperle report, and (3) the
threshold for admission of valuation testimony, which landowners claimed was “very low.”
During IEPC’s rebuttal argument, the following exchange occurred:
“THE COURT: What did the judge down in De[ ]Witt [County] do? He
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excluded Aupperle’s opinion[?] [The court] remember[s] you mentioned it last
time, but [the court does not]—
[IEPC’S COUNSEL]: I think we provided the Court with the order form,
from De Witt County. Yes, *** Aupperle has been barred, and *** Crouch has
been barred, and *** Deaver, who was mentioned here but not mentioned in the
Aupperle report, was also barred.
THE COURT: For similar reasons that you raised?
[IEPC’S COUNSEL]: For, I believe, exactly the reasons that we have
raised here.
THE COURT: But that was not a motion for summary judgment? That
was just a bar?
[IEPC’S COUNSEL]: That was a motion in limine to bar.
THE COURT: Is there *** other evidence in that case[;] other appraisals
that haven’t gotten to that issue yet?
[IEPC’S COUNSEL]: There are in those pending cases where Aupperle,
Crouch, and Deaver were barred, the only remaining evidence is the evidence of
[IEPC’s] appraisers.
THE COURT: *** All right.”
¶ 31 Thereafter, the trial court ruled as follows:
“[T]he court [will] exclude [Aupperle’s] entire opinion that was filed here with
the Court in similar fashion as was done in De[ ]Witt County, and because of the
fact that the Court would then be excluding the opinion evidence of *** Aupperle,
that does mean [landowners] wouldn’t have any admissible value testimony at
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this point in time to value the permanent [and] temporary easements and any
remainder damage, and so therefore, the only opinions that are available then
would be the opinions filed by [IEPC], and so there would be no issue of material
fact, and the Court would therefore grant the motion for summary judgment.”
In its later written order, the court awarded landowners compensation totaling $332,000.
¶ 32 This appeal followed.
¶ 33 II. ANALYSIS
¶ 34 A. Summary Judgment and This Court’s Standard of Review
¶ 35 “The purpose of a summary-judgment proceeding is not to try an issue of fact but,
instead, to determine whether a genuine issue of material fact exists.” Evans v. Brown, 399 Ill.
App. 3d 238, 243, 925 N.E.2d 1265, 1270 (2010). “Summary judgment is properly granted when
the pleadings, depositions, admissions, and affidavits on file, viewed in the light most favorable
to the nonmoving party, show that there is no genuine issue of material fact and that the moving
party is entitled to judgment as a matter of law.” Village of Bartonville v. Lopez, 2017 IL
120643, ¶ 34. “In order to survive a motion for summary judgment, a [respondent] need not
prove her case, but she must present a factual basis that would arguably entitle her to a
judgment.” Bruns v. City of Centralia, 2014 IL 116998, ¶ 12, 21 N.E.3d 684. We review de novo
a trial court’s ruling on a summary-judgment motion. Bartonville, 2017 IL 120643, ¶ 34.
¶ 36 B. The Purpose of Rule 191(a) in a
Summary Judgment Proceeding
¶ 37 The sole overarching issue throughout this litigation concerns IEPC’s intent to
acquire right-of-way and easement interests over certain real estate for the planned construction
of the SAX project. To achieve that objective, IEPC attempted to negotiate with holdout
landowners regarding the fair-market value of its interest in their respective properties. As
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previously noted, in June 2014—after settlement negotiations with landowners failed—IEPC
executed the eminent-domain authorization the Commission granted by filing condemnation
complaints, which sought a jury’s determination as to the just compensation for its interests in
landowners’ parcels. Although landowners filed a counterclaim on the issue of damages to the
remainder of their respective properties following installation of the SAX project, that damage
claim was merely a subcategory of the just compensation that a jury had yet to determine.
¶ 38 Thus, when IEPC filed its condemnation complaints in June 2014, the only issue
to be decided concerned the fair-market value of IEPC interests in landowners’ properties—that
is, the just compensation that IEPC owed to landowners for its interest in their respective parcels.
Indeed, the primary goal, in a partial condemnation—such as this one—“is to provide
compensation that is ‘just’ in the sense that it places the landowner in the same economic
position after the condemnation as before.” City of Springfield v. West Koke Mill Development
Corp., 312 Ill. App. 3d 900, 904, 728 N.E.2d 781, 785 (2000). “Given the technical and
particularized process employed to calculate the just compensation that a condemnor should
provide for its interest in a condemnee’s property, a condemnation proceeding essentially
becomes a contest on the credibility of the parties’ experts.” Hoke, 2017 IL App (4th) 150544, ¶
108.
¶ 39 By filing its February 2015 motion for summary judgment on the issues of just
compensation and damages to the remainder, however, IEPC requested that the trial court
circumvent the usual fact-finding a jury performs, claiming that because no genuine issue of
material fact existed, IEPC was entitled to judgment as a matter of law. In support of its
summary judgment motion, IEPC appended affidavits filed by its expert appraisers, Batis and
Park. In its later reply to landowners’ response, IEPC also noted that landowners failed to file
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any counteraffidavits.
¶ 40 When a party offers expert opinions in written form at the summary judgment
stage, the writings in support or in opposition to the motion, such as affidavits, must not only be
sworn but must also comply with Rule 191(a), which provides, in part, the following guidance:
“Affidavits in support of and in opposition to a motion for summary judgment
under section 2-1005 of the Code of Civil Procedure *** shall be made on the
personal knowledge of the affiants; shall set forth with particularity the facts upon
which the claim, counterclaim, or defense is based; shall have attached thereto
sworn or certified copies of all documents upon which the affiant relies; shall not
consist of conclusions but of facts admissible in evidence; and shall affirmatively
show that the affiant, if sworn as a witness, can testify competently thereto.” Ill.
S. Ct. R. 191(a) (eff. Jan. 4, 2013).
¶ 41 In Robidoux v. Oliphant, 201 Ill. 2d 324, 775 N.E.2d 987 (2002), the seminal case
interpreting the scope of Rule 191(a), the supreme court provided two main points applicable to
the instant case. The first point is that because an affidavit “serves as a substitute” for trial
testimony, “it is necessary that there be strict compliance with Rule 191(a) ‘to insure that trial
judges are presented with valid evidentiary facts upon which to base a decision.’ ” Id. at 335-36,
775 N.E.2d at 994 (quoting Solon v. Godbole, 163 Ill. App. 3d 845, 851, 516 N.E.2d 1045, 1049
(1987)). The second point is that the affidavit filed in support of a motion for summary judgment
must have attached thereto sworn or certified copies of all papers upon which the affiant relied.
Id. at 343-44, 775 N.E.2d at 998. Because this second requirement “is inextricably linked to the
provisions requiring specific factual support in the affidavit itself,” “[i]t is not a mere technical
requirement.” Id. at 344, 775 N.E.2d at 998.
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¶ 42 In Essig v. Advocate BroMenn Medical Center, 2015 IL App (4th) 140546, ¶ 46,
33 N.E.3d 288, this court summarized the rationale underpinning the supreme court’s guidance
in Robidoux as follows:
“At trial, an expert may give an opinion without first disclosing the facts
underlying that opinion [citation] because the opposing party has the opportunity
to cross-examine the expert as to the basis of his opinion. [Citation.] However,
because the opportunity to cross-examine is not present when a party submits
written opinions in the summary judgment context, Rule 191(a) essentially
requires the affiant to provide his own cross-examination regarding the factual
bases for his opinions.”
¶ 43 “Given that cross-examination is unavailable as a means to test an affidavit, it is
not surprising that the standard for admission of an affidavit in a summary judgment context
would be higher than for the admission of an expert’s opinion at trial.” Robidoux, 201 Ill. 2d at
338, 775 N.E.2d at 995. Thus, “[a]n affidavit satisfies the requirements of Rule 191(a) if from
the document as a whole it appears the affidavit is based on the personal knowledge of the affiant
and there is a reasonable inference that the affiant could competently testify to its contents.”
(Internal quotation marks omitted.) Madden v. F.H. Paschen/S.N. Nielson, Inc., 395 Ill. App. 3d
362, 386, 916 N.E.2d 1203, 1223-23 (2009). “[A]n expert’s affidavit in support of or in
opposition to a motion for summary judgment must adhere to the requirements set forth in the
plain language of Rule 191(a).” (Emphasis added.) Robidoux, 201 Ill. 2d at 339, 775 N.E.2d at
995.
¶ 44 It is from this well-established foundation that we address landowners’ claim that
the trial court erred by granting summary judgment in IEPC’s favor.
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¶ 45 C. The Trial Court’s Grant of Summary Judgment
¶ 46 In its February 2015 motion for summary judgment, IEPC included separate
affidavits from its two experts, Batis and Park, who were experienced certified general real estate
appraisers. In their respective affidavits, Batis and Park explained that they had performed an
appraisal of the 18 parcels at issue that complied with the USPAP and Code of Professional
Ethics of the Appraisal Institute. Attached as an exhibit to their affidavits was a detailed report
listing the components of the appraisal process common to all of landowners’ parcels. Each
expert then prepared 18 supplemental reports that identified appraisal components tailored to the
unique characteristics of each property. Thereafter, Batis and Park estimated the fair-market
value for the permanent easement, temporary easement, and damage to the remainder to arrive at
a just compensation calculation for each parcel. Batis and Park averred in their affidavits that
they were competent to testify to any aspect of the appraisal process as documented in their
general and supplemental reports. For reasons we later explain, IEPC’s inclusion of the Aupperle
report in its motion for summary judgment was neither necessary nor prudent.
¶ 47 In their March 2015 response, landowners argued generally that (1) the valuation
opinions in the Aupperle report were credible and, thus, admissible and (2) the USPAP standard
had not been adopted by Illinois. The sole attachment to landowners’ response was the
aforementioned October 2014 article written by Urbance. Landowners did not include the
Aupperle report or any counteraffidavits with their response. Landowners later supplemented
their response with 173 pages of information, as earlier noted, but did not include any
counteraffidavits.
¶ 48 This comprises the “evidence” that was before the trial court on the issue of just
compensation and damages to the remainder at the March 2015 hearing on IEPC’s motion for
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summary judgment.
¶ 49 “ ‘When a party moving for summary judgment files supporting affidavits
containing well-pleaded facts, and the party opposing the motion files no counteraffidavits, the
material facts set forth in the movant’s affidavits stand as admitted. [Citation.] The opposing
party may not stand on his or her pleadings in order to create a genuine issue of material fact.
[Citation.]’ ” E.O.R. Energy, LLC v. Pollution Control Board, 2015 IL App (4th) 130443, ¶ 97,
29 N.E.3d 691 (quoting Parkway Bank & Trust Co. v. Korzen, 2013 IL App (1st) 130380, ¶ 49, 2
N.E.3d 1052). We reiterate that because an affidavit submitted in a summary judgment
proceeding serves as a substitute for trial testimony, strict compliance with Rule 191(a) is
necessary to ensure that trial courts are presented with valid evidentiary facts upon which to base
a decision. Lucasey v. Plattner, 2015 IL App (4th) 140512, ¶ 19, 28 N.E.3d 1046.
¶ 50 With the exception of Aupperle’s report, which IEPC included only to attack, we
conclude that IEPC fully complied with Rule 191(a) by filing supporting affidavits from its two
experts, which contained well-pleaded facts regarding the just compensation IEPC was required
to pay landowners in exchange for its property interests as well as sworn or certified copies of all
documents upon which Batis and Park relied.
¶ 51 We conclude further that landowners’ response, which they later supplemented,
failed entirely to comply with the requirements of Rule 191(a). Indeed, even Aupperle’s report,
which landowners (1) disclosed pursuant to Illinois Supreme Court Rule 213(f)(3) (eff. Jan. 1,
2007) and (2) argued was admissible in their response to IEPC’s motion for summary judgment,
was not properly before the trial court at the March 2015 hearing on IEPC’s summary judgment
motion. As we noted in Essig, 2015 IL App (4th) 140546, ¶ 51, 33 N.E.3d 288, “the contents of
Rule 213(f) disclosures are not evidence for purposes of summary judgment because Rule 213(f)
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disclosures are not pleadings, depositions, admissions, or affidavits.” (Emphasis in original.)
“Notably, Rule 213(f) requires the party—not the expert himself—to disclose the substance of
the expert’s anticipated testimony.” (Emphasis in original.) Id. ¶ 52.
¶ 52 Accordingly, we reject landowners’ claim of error and affirm the trial court’s
grant of summary judgment in IEPC’s favor. In so concluding, we note that the instant case
continues the unfortunate trend of imprecision associated with summary judgment motions and
responses thereto.
¶ 53 In Essig, the plaintiffs sued the defendant medical center claiming institutional
negligence. Id. ¶ 19. In compliance with section 2-622(a)(1) of the Code of Civil Procedure (735
ILCS 5/2-622(a)(1) (West 2008)), the plaintiffs attached to their complaint a physician’s written
report attesting to the merits of their claim. Essig, 2015 IL App (4th) 140546, ¶ 20, 33 N.E.3d
288. After the defendant moved for summary judgment, the plaintiffs attached the physician’s
section 2-622 report to their response and, thereafter, relied heavily upon that report in opposing
the defendant’s motion for summary judgment. Id. ¶ 41.
¶ 54 On appeal from the trial court’s grant of summary judgment in the defendant’s
favor, the plaintiffs based their arguments to this court on (1) an unsworn and unsigned 22-page
document and (2) purported conclusions and opinions contained in the plaintiffs’ discovery
disclosures filed pursuant to Rule 213(f)(3). Id. ¶¶ 50-51. This court noted that throughout the
proceedings in the trial court and on appeal, the defendant “ha[d] at no point *** objected—or
even drawn the court’s attention to—[the] plaintiffs’ improper reliance upon [the] section 2-622
report, the Rule 213(f) disclosures, or any other inadmissible evidence for purposes of the
summary judgment determination.” Id. ¶ 53.
¶ 55 To prevent the aforementioned evidentiary situation from reoccurring, we
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provided the following guidance:
“[T]he trial court *** would have been better served had the attorneys on both
sides appropriately addressed and resolved the glaring evidentiary deficiencies
present during summary judgment proceedings. *** In response to plaintiffs’
reliance upon improper evidence, [the defendant] should have moved to strike the
improper evidence for purposes of summary judgment. Had [the defendant] done
so, the record on appeal would have reflected (much to this court’s benefit) which
specific pieces of evidence the court either relied upon or chose to disregard for
purposes of its summary judgment ruling.” Id. ¶ 86.
Our guidance in Essig, however, was not the first time we addressed this evidentiary deficiency
in summary judgment proceedings.
¶ 56 In Evans, which was decided five years prior to our decision in Essig, this court
explained the proper procedure to be used when a party seeks to bar the trial court from
considering certain evidence for purposes of summary judgment, as follows:
“[T]he better practice would be for the matter to be litigated in a separate, formal
hearing prior to the summary-judgment hearing itself. Alternatively, if the court
believes the evidentiary matter at issue is not complicated, then the court in its
discretion may address that matter immediately prior to the summary-judgment
hearing or during that hearing itself, provided, of course, that the opposing party
has received sufficient notice of the motion. Further, the moving party should
seek—and the trial court should provide—a definitive ruling on the evidentiary
matter at issue. Following this procedure would not only make for a better record
at the trial level, it would also provide courts of review with a clear picture of
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(1) the parties’ positions at trial and (2) the trial court’s ruling.
If the evidentiary matter at issue is more involved, then the party seeking
to bar the trial court’s consideration of the evidence should make a motion to
strike or bar the evidence and set the matter for a hearing prior to the hearing on
the motion for summary judgment. This would be the preferred course, for
instance, if a party wished to challenge expert testimony proffered by the other
side in a summary-judgment context.” Evans, 399 Ill. App. 3d at 251-52, 925
N.E.2d at 1277.
¶ 57 In this case, IEPC characterized Aupperle’s report as “nothing short of an
outrageous set of unqualified, baseless, purely speculative, and highly prejudicial statements that
fail to meet any standard for admissibility under Illinois law.” Thus, IEPC should have moved to
strike or bar Aupperle’s report prior to filing its motion for summary judgment for the reasons
we have already explained. However, IEPC’s decision to append the Aupperle report to its
motion for summary judgment and then argue that it was not admissible was arguably worse than
the situation that occurred in Essig because IEPC unnecessarily complicated what should have
been a straightforward summary judgment analysis, given landowners’ complete failure to
comply with the mandatory provisions of Rule 191(a).
¶ 58 We note that based on the above-quoted exchange that occurred between IEPC’s
counsel and the trial court at the March 2015 hearing on IEPC’s summary judgment motion, the
court seemed to momentarily shift its focus away from determining whether the pleadings,
depositions, admissions, and affidavits on file showed that there was no genuine issue of material
fact and, instead, weighed the merits of the Aupperle report, which is not the proper focus of a
summary judgment proceeding. See Kleiss v. Bozdech, 349 Ill. App. 3d 336, 351, 811 N.E.2d
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330, 341 (2004) (in which this court reversed the trial court’s grant of summary judgment
because the court impermissibly weighed the evidence proffered by the parties’ respective
experts instead of determining solely whether a genuine issue of material fact existed).
¶ 59 However, we need not concern ourselves with whether the trial court improperly
weighed the Aupperle report because we may affirm a grant of summary judgment on any basis
appearing in the record, regardless of whether the court relied upon that ground. Bartonville,
2017 IL 120643, ¶ 34. We adhere to our conclusion that the trial court properly granted summary
judgment by finding that because IEPC properly complied with Rule 191(a) and landowners did
not, no genuine issue of material fact existed with regard to the just compensation IEPC owed to
landowners for its right-of-way and easement interests in their respective parcels.
¶ 60 III. CONCLUSION
¶ 61 For the foregoing reasons, we affirm the trial court’s judgment.
¶ 62 Affirmed.
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