People ex rel. Department of Transportation v. Greatbanc Trust Co. , 2018 IL App (1st) 171315 ( 2019 )

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People ex rel. Department of Transportation v. Greatbanc Trust Co.,
2018 IL App (1st) 171315
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS ex rel. THE
Caption DEPARTMENT OF TRANSPORTATION, Plaintiff-Appellee, v.
GREATBANC TRUST COMPANY, f/k/a First National Bank in
Chicago Heights, as Trustee Under Trust Agreement Dated October 8,
1973, and Known as Trust Number 996; BENEFICIARY OR
BENEFICIARIES OF A TRUST AGREEMENT DATED
OCTOBER 8, 1973, AND KNOWN AS TRUST NUMBER 996,
With Greatbanc Trust Company, f/k/a First National Bank in Chicago
Heights, as Trustee, Whose Names Are Unknown and Are Designated
Unknown Owners; GREATBANC TRUST COMPANY, f/k/a First
National Bank in Chicago Heights, as Trustee Under a Trust
Agreement Dated December 4, 1970, and Known as Trust Number
1447; BENEFICIARY OR BENEFICIARIES OF A TRUST
AGREEMENT DATED DECEMBER 4, 1970, AND KNOWN AS
TRUST NUMBER 1447, With Greatbanc Trust Company, f/k/a First
National Bank in Chicago Heights as Trustee, Whose Names are
Unknown and Are Designated Unknown Owners; PETER KATTOS;
MARQUETTE BANK a/k/a Marquette; and UNKNOWN OWNERS,
Defendants (Greatbanc Trust Company, f/k/a First National Bank in
Chicago Heights, as Trustee under Trust Agreement Dated October 8,
1973, and Known as Trust Number 996, Peter Kattos, and Marquette
Bank a/k/a Marquette, Defendants-Appellants).
District & No. First District, Second Division
Docket No. 1-17-1315
Filed December 4, 2018
Decision Under Appeal from the Circuit Court of Cook County, No. 06-L-050813; the
Review Hon. Alexander P. White, Judge, presiding.
Judgment Affirmed.
Counsel on Figliulo & Silverman, PC (Carl A. Gigante and Rebecca K. Fournier,
Appeal of counsel), and Kelly, Oldon, Michod, DeHaan & Richter, LLC
(Marc J. Chalfen, David S. Adduce, and Paul J. Richter, of counsel),
both of Chicago, for appellants.
Walker Wilcox Matousek, LLP, of Chicago (Amanda Ripp, of
counsel), for appellee.
Panel JUSTICE PUCINSKI delivered the judgment of the court, with
opinion.
Presiding Justice Mason and Justice Hyman concurred in the
judgment and opinion.
OPINION
¶1 In this eminent domain matter, defendants Greatbanc Trust Company, as trustee under
Trust Agreement dated October 8, 1973, and known as Trust Number 996 (Greatbanc 1973),
and Marquette Bank, a/k/a Marquette (Marquette), filed notices of appeal from the trial
court’s grant of plaintiff Department of Transportation of the State of Illinois (IDOT)’s
motions in limine with respect to defendant Peter Kattos’s valuation expert and the trial
court’s grant of summary judgment in favor of IDOT on the issue of just compensation. For
the reasons that follow, we affirm.
¶2 I. BACKGROUND
¶3 Before getting into the background of this appeal, we note that, on appeal, Kattos, not
Greatbanc 1973, filed an appellant’s brief. Marquette joined in the arguments raised in that
brief. Kattos, however, did not file a notice of appeal in the trial court. Rather, notices of
appeal were filed on behalf of only Greatbanc 1973 and Marquette. It appears that this
inconsistency arises out of the sloppy filing of attorney appearances in the trial court on
behalf of Kattos and Greatbanc 1973. Initially, an appearance by the firm of Neal & Leroy
was filed on behalf of Kattos. No appearance was filed on behalf of Greatbanc 1973. Later,
Neal & Leroy filed a motion to substitute counsel. In that motion, Neal & Leroy stated that
attorney Thomas Goedert, as a member of Neal & Leroy, had been representing Ashton
Drive, LLC, Petey’s Two Real Estate, LLC, and Kattos. (Ashton Drive, LLC, and Petey’s
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Two Real Estate, LLC, were not named parties to the present case, but apparently were the
beneficiaries of the two trusts for which Greatbanc Trust Company was named in its capacity
as trustee.) Because Goedert was leaving Neal & Leroy, the firm sought to withdraw its
representation of these parties and requested that Goedert be allowed to file his individual
appearance on behalf of those parties. That motion was granted. Thereafter, Goedert filed an
appearance on behalf of Ashton Drive, LLC, and Petey’s Two Real Estate, LLC. He did not
file an appearance on behalf of either Kattos or Greatbanc 1973, although he continued to file
documents on behalf of Kattos and signed the notice of appeal on behalf of Greatbanc 1973.
Appellate counsel (not Goedert) then filed an appellant’s brief on behalf of Kattos.
¶4 It appears, from what we can gather from this confusing record, that Goedert intended to
represent all of the named defendants except Marquette, which had separate counsel. Under
different circumstances, this lack of attention to detail could present serious issues regarding
who might be entitled to relief on appeal. However, because we affirm the trial court’s
decisions on a basis that applies equally to all named defendants, we need not sort out the
mess that is the representation of the defendants other than Marquette. In an attempt to
minimize confusion in this decision, we will use the term “appellants” to refer to Greatbanc
1973, Kattos, and Marquette, all of whom, in some fashion, claim an interest in this appeal.
¶5 Turning now to the facts of this case, in August 2006, IDOT filed a complaint to
condemn a portion of real property in which the named defendants had either an ownership
or beneficial interest1 (subject property) for use in a road improvement project. The subject
property was located at the intersection of U.S. Route 6 and U.S. Route 45 in Orland Park
and totaled approximately 40 acres. Although the majority of the subject property was
vacant, a portion of it was improved with a restaurant operated by Kattos. Initially, IDOT
sought to take fee simple title in a total of 5.258 acres of the subject property (3.238 acres of
which was already dedicated or used for highway purposes) and temporary easements over
an additional 0.322 acres of the subject property. One of the parcels in which IDOT sought
fee simple title included part of the existing restaurant, requiring the restaurant to be either
demolished or remodeled. In 2008, after Kattos refused to demolish the restaurant, IDOT
reduced the size of the property it sought to condemn, such that it no longer included any part
of the restaurant.
¶6 After what appears to be eight years of fact and expert discovery, in March 2016, IDOT
filed two motions in limine directed toward the opinions of Kattos’s valuation expert, Joseph
Thouvenell. In the first motion in limine, IDOT argued that Thouvenell should be barred
from testifying at trial because his opinions on the value of the subject property, the property
taken, and the remainder were based on improper appraisal methods. In the second motion
in limine, IDOT argued that certain comparable sales Thouvenell used in his valuation
opinions were inadmissible.
¶7 The trial court set a briefing schedule on the motions in limine and set a hearing date for
May 25, 2016. Appellants did not file a response. At the scheduled hearing, the trial court
1
Again, the record is not clear on the precise relationship of the named defendants to the subject
property. Although not specifically stated anywhere, it appears, based on information gathered in the
record and from statements in the parties’ appellate briefs, that the two trusts for which Greatbanc Trust
Company is the trustee were the record owners of the two parcels that comprised the subject property.
The beneficiaries of those trusts were two unnamed LLCs owned by Kattos.
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granted appellants an extension of time in which to respond to the motions in limine.
Thereafter, over the course of the next nine months, the trial court granted appellants another
five extensions of time in which to respond to IDOT’s motions in limine. In the final
extension order, entered February 28, 2017, the trial court granted appellants until March 13,
2017, to respond to the motions in limine and set a hearing on the motions for April 4, 2017.
On March 30, 2017, after appellants had again failed to file any response to IDOT’s motions
in limine, the trial court entered an order granting the motions. In that order, the trial court
recounted in detail IDOT’s arguments in its motions in limine. After noting that appellants
failed to file any response to the motions and that it would therefore consider the motions
unopposed, the trial court stated that it agreed with IDOT’s contentions in both motions
in limine. Therefore, the trial court granted both motions in their entirety.
¶8 On April 4, 2017, the date set for the hearing on the motions in limine, the trial court
entered an order, denying appellants’ motion for another extension of time to respond to the
motions in limine and to reset the trial date. The order also noted that IDOT would be filing a
motion for summary judgment the following day and ordered appellants to respond to that
motion for summary judgment by April 12, 2017. The trial court set a hearing on the motion
for summary judgment for April 18, 2017.
¶9 In the motion for summary judgment filed the following day, IDOT sought summary
judgment on the amount of final just compensation for the property taken. IDOT argued that
because the trial court had granted IDOT’s motions in limine regarding Thouvenell’s
opinions, the only valuation evidence was the opinions of IDOT’s appraisers, who opined
that the total just compensation for the taking fell somewhere in the range of $1.378 million
to $1.52 million. IDOT stated that it would stipulate, only for purposes of the motion for
summary judgment, that just compensation was $1.52 million.
¶ 10 By the time of the hearing on the motion for summary judgment, appellants had again
failed to file any response, and the trial court granted IDOT’s motion for summary judgment.
Thereafter, on April 27, 2017, the trial court entered its final judgment order, setting just
compensation for the taking at $1.52 million and confirming its previous orders granting
IDOT title and/or temporary easements in the taken property. In addition, the trial court
explicitly stated that there was no just reason to delay either enforcement or appeal of the
order. Thereafter, Greatbanc 1973 and Marquette filed their respective notices of appeal.
¶ 11 II. ANALYSIS
¶ 12 On appeal, appellants argue that the trial court erred in granting IDOT’s motions
in limine and, in turn, IDOT’s motion for summary judgment. More specifically, they argue
that any errors in Thouvenell’s appraisal methods went to the weight of his opinions, not
their admissibility, and that the comparable sales that Thouvenell utilized were proper. In
addition, they argued that even if the trial court properly granted IDOT’s motions in limine,
the motions in limine did not challenge Thouvenell’s opinion of the value of the part taken or
Thouvenell’s use of comparable sale 5A and, thus, that evidence should have been
considered in assessing whether summary judgment should be granted. In response, IDOT
argued, among other things, that appellants waived their contentions on appeal by failing to
raise any of them in the trial court. We agree.
¶ 13 It is a well-established principle of appellate practice that contentions not raised in the
trial court are waived and may not be raised for the first time on appeal. See, e.g., Haudrich
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v. Howmedica, Inc., 169 Ill. 2d 525, 536 (1996); Moore v. Board of Education of the City of
Chicago, 2016 IL App (1st) 133148, ¶ 35 (refusing to consider issue not raised at any point
in trial court). The purpose of this and other waiver rules is to preserve judicial resources by
requiring parties to bring issues to the trial court’s attention, thereby allowing the trial court
an opportunity to correct any errors. People v. McKay, 282 Ill. App. 3d 108, 111 (1996). In
other words, “[a] party cannot stand idly by and not object, and then appeal, arguing that the
trial court’s action was wrong.” Mohica v. Cvejin, 2013 IL App (1st) 111695, ¶ 85. A party’s
failure to first raise an issue or theory in the trial court “weaken[s] the adversarial process and
our system of appellate jurisdiction” and prejudices the opposing party by depriving that
party of the opportunity to respond to the issue or theory with its own evidence and
argument. Daniels v. Anderson, 162 Ill. 2d 47, 59 (1994).
¶ 14 Here, despite being granted six extensions of time and nearly a year in which to respond,
none of the appellants (or other named defendants) filed a written response to IDOT’s
motions in limine or a motion to reconsider the grant of the motions in limine. In addition,
appellants did not include in the record on appeal any reports of proceedings related to the
motions in limine. See Foutch v. O’Bryant, 99 Ill. 2d 389, 391-92 (1984) (“[A]n appellant has
the burden to present a sufficiently complete record of the proceedings at trial to support a
claim of error, and in the absence of such a record on appeal, it will be presumed that the
order entered by the trial court was in conformity with law and had a sufficient factual basis.
Any doubts which may arise from the incompleteness of the record will be resolved against
the appellant.”). Therefore, based on the record, appellants made no effort whatsoever to
respond or object to IDOT’s motions in limine, despite the fact that they were given many
opportunities to do so.
¶ 15 Likewise, despite having failed to take advantage of the trial court’s generosity in
granting numerous extensions on the motions in limine, Kattos and Marquette continued to
be derelict and made no attempt to respond to IDOT’s motion for summary judgment or to
seek an extension of time in which to respond. They also, again, did not include any report of
proceeding in the record, demonstrating that they registered any oral objections to IDOT’s
motion for summary judgment. Based on this complete and utter lack of effort to present
their arguments and objections in the trial court, application of the waiver rule to appellants’
contentions on appeal is clear.
¶ 16 Appellants attempt to avoid the application of the waiver rule in a couple of ways. First,
they argue that their failure to file a written response to the motions in limine did not waive
their opposition to the motions, per Cook County Circuit Court Rule 2.1(d) (Aug. 21, 2000).
Rule 2.1(d) outlines the procedure for filing motions in the Law Division of the Circuit Court
and sets a standard briefing schedule for motions. Id. It then provides in relevant part:
“Failure to file a supporting or answering memorandum shall not be deemed to be a waiver
of the motion, or a withdrawal of the opposition thereto, but shall be deemed to be a waiver
of the right to file the respective memorandum.” Id.
¶ 17 Appellants argue that because their failure to file a written response to the motions
in limine did not waive their objections to the motions, the trial court erred in granting the
motions in limine by default and in denying them the opportunity to orally object to the
motions at the scheduled hearing. We note that appellants’ argument in this respect focuses
primarily on the issue of whether they waived their contentions in the trial court and whether
the trial court erred in ruling on the motions in limine without input from appellants; it does
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not directly address whether they waived their contentions on appeal. Nevertheless, because
this argument implies that appellants were improperly deprived of the opportunity to raise
their contentions in the trial court, we address it to the extent that it affects waiver on appeal.
¶ 18 As an initial matter, we disagree that the trial court granted the motions in limine by
default. Although the trial court noted in its written decision that the motions in limine were
unopposed, it also affirmatively stated that it agreed with the merits of IDOT’s in the
motions. Thus, on our review, it appears that the trial court granted the motions in limine
based on their merits, not based on appellants’ failure to file written responses.
¶ 19 We also reject appellants’ contention that by ruling on the motions in limine prior to the
scheduled hearing date, the trial court denied them the opportunity to orally object. Not only
was the trial court not obligated to provide an opportunity for oral arguments on such
motions (Korbelik v. Staschke, 232 Ill. App. 3d 114, 118-19 (1992) (oral arguments in a case
tried without a jury are a privilege, not a right)), but also, as mentioned, appellants failed to
include in the record on appeal a report of proceeding for the scheduled hearing date of April
4, 2017. As a result, we have no way to ascertain whether appellants objected to the motions
in limine or the trial court’s issuance of a decision on the motions prior to the hearing. We are
also unable to ascertain whether the trial court indicated a willingness to revisit the merits of
the motions in limine or addressed its issuance of a written order prior to the scheduled
hearing. We also note that the order entered following the April 4, 2017, hearing indicated
that the only request made by defendants was that they be given another extension of time in
which to file a written response to the motions in limine. Given all of this, the fact that it was
appellants’ burden to present us with a sufficient record on which to review the claimed
errors, and that all inadequacies in the record must be construed against the appellants, we
see no basis to conclude that the trial court wrongfully deprived appellants of the opportunity
to orally object to the motions in limine.
¶ 20 Putting those initial matters aside, we conclude that Rule 2.1(d) has no effect on our
determination that appellants have waived their contentions on appeal. Rule 2.1(d) speaks to
the waiver effect of the failure to file a written response to a motion in the trial court. See
Cook County Cir. Ct. R. 2.1(d) (Aug. 21, 2000). We are not the trial court, nor is our
conclusion that appellants waived their contentions based merely on their failure to file
written responses to IDOT’s motions in limine and for summary judgment. Instead, we have
applied the well-known appellate rule that the failure to raise issues in the trial court results
in waiver of those issues on appeal to conclude that appellants’ complete and utter failure to
register any objections to IDOT’s motions—whether orally or in writing—waived their
contentions on appeal. Even if Rule 2.1(d) had some application in the appellate context, it
addresses only the failure to file a written response. Appellants do not explain how it has any
effect on the waiver that results from their failure to demonstrate that they registered oral
objections or their failure to file motions to reconsider the trial court’s alleged errors.
¶ 21 In support of their contention that Rule 2.1(d) is relevant to determining whether
contentions on appeal have been waived, appellants cite Parkway Bank & Trust Co. v.
Meseljevic, 406 Ill. App. 3d 435 (2010). In that case, the defendant filed an untimely
response to the plaintiff’s motion for judgment on the pleadings (it was filed one day late),
despite the trial court’s warning that the failure to file a timely written response would result
in waiver of oral argument on the motion. Id. at 438. The trial court struck the untimely
response and barred the defendant from presenting oral argument on the motion. Id. On
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 appeal, the plaintiff argued that the defendant waived any objection to the trial court’s grant
of judgment on the pleadings by failing to object in the trial court. Id. at 442-43. Noting that
Rule 2.1(d) provided that the failure to file a written response only waived the right to file the
response, not the party’s objection, the appellate court concluded that the defendant had not
failed to object, but only that its objection was stricken as untimely. Id. at 443. The court also
observed that, in addition to objecting in writing, albeit untimely, the defendant also appeared
at the hearing on the motion, ready to object, despite its oral objection having been barred. Id.
at 443-44. Thus, the court concluded that application of the waiver rule was inappropriate
because the defendant had clearly made every attempt to object. Id. at 444.
¶ 22 Parkway Bank is inapposite to the present case. The defendant in that case made every
effort to object to the motion for judgment on the pleadings, both in writing and orally, and
its only fault was failing to file its written response on time. In the present case, based on the
record before us, appellants made no effort whatsoever to object, in any manner, to IDOT’s
motions in limine and motion for summary judgment. Rather, they did exactly what the
waiver rule was designed to prevent—they sat idly by for nearly a year, filed nothing, argued
nothing, and now attempt to argue that the trial court erred.
¶ 23 Despite this, appellants argue that their intent to object was evidenced by their numerous
requests for extension of time to respond to IDOT’s motions. Whatever their intent might
have been, the fact remains that appellants never filed any written response to the motions
in limine, despite being given six extensions of time and nearly a year in which to do so. Nor
did they file a written response to the motion for summary judgment or even request an
extension of time in which to respond. There also is no evidence in the record of any attempt
to orally object at the hearings on the motions. Under these circumstances, what appellants
may or may not have intended to do is irrelevant. Waiver results from the failure to raise an
issue in the trial court, not the lack of intention to raise the issue in the trial court.
¶ 24 Appellants also argue that we should overlook waiver in the interests of justice. They
argue that because there exists a constitutional right to just compensation in eminent domain
cases and because the difference between Thouvenell’s valuation and what was awarded was
over $1.5 million, if IDOT’s expert undervalued the subject property, then the trial court’s
alleged errors prejudiced Kattos and Marquette and violated their constitutional rights.
¶ 25 Although it is true that “[i]n exceptional cases, we may refuse to apply waiver in the
interests of justice” (In re Marriage of Brackett, 309 Ill. App. 3d 329, 338 (1999)), we see
nothing exceptional about this case to warrant putting aside waiver, especially given
appellants’ blatant disregard of the trial court’s response deadlines. The fact that
constitutional rights are involved does not alter our opinion. It is well established that waiver
applies equally in cases involving constitutional rights and constitutional claims on appeal.
See, e.g., Cholipski v. Bovis Lend Lease, Inc., 2014 IL App (1st) 132842, ¶ 58; Hytel Group,
Inc. v. Butler, 405 Ill. App. 3d 113, 127 (2010). In addition, if we were to overlook waiver in
every case where the appealing party might be prejudiced, the waiver rule would essentially
disappear, as every appellant claims that it was prejudiced by the trial court’s decisions.
Moreover, appellants have not pointed to anything that would cause us to conclude that
application of the waiver rule would result in an exceptional injustice. The fact of the matter
is that, at the end of the day, the trial court did award compensation for the taking of the
property. Although the $1.52 million awarded is less than the compensation Thouvenell
suggested, the compensation awarded by the trial court was based on a valuation prepared by
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an expert whose credentials and methods appellants have not challenged. Accordingly, we
disagree that the present case is one of those exceptional cases in which waiver should be
overlooked in the interests of justice. As our supreme court has noted, “[W]hile our case law
is permeated with the proposition that waiver and forfeiture are limitations on the parties and
not on the court, that principle is not and should not be a catchall that confers upon reviewing
courts unfettered authority to consider forfeited issues at will.” Jackson v. Board of Election
Commissioners, 2012 IL 111928, ¶ 33.
¶ 26 We observe that the conclusion that an appellant has waived all of his or her contentions
on appeal may initially appear to be harsh. This is likely due to the fact that it is not a
common occurrence to see such a blatant example of waiver as is present in this case; it is not
often that a party repeatedly and completely fails to object to pivotal motions in the trial
court. It is also this blatant disregard, however, that warrants the application of the waiver
rule in this case. Despite being given every opportunity to respond to IDOT’s motions
in limine and motion for summary judgment, appellants repeatedly failed to take advantage
of those opportunities. Recall, the trial court granted appellants a total of six extensions of
time in which to file their written responses to the motions in limine, which gave appellants a
total of one year in which to respond. Moreover, despite having lost their opportunity to
respond to the motions in limine just a couple of weeks before, appellants completely
disregarded their opportunity to file a written response to IDOT’s motion for summary
judgment. Their failure to respond to the motion for summary judgment cannot be attributed
to a sense of futility following the trial court’s decision on the motions in limine because
appellants argue that the motion for summary judgment should have been denied even if the
motions in limine were properly granted. Further, appellants never filed any sort of motion to
reconsider either of those decisions, and they have pointed to nothing in the record
evidencing any attempt to register oral objections to these motions.
¶ 27 We can think of few circumstances that would better illustrate the purpose of and need
for the waiver rule than the circumstances of this case. IDOT and the trial court undoubtedly
spent a significant amount of time and effort on briefing, arguing, reading, researching, and
deciding the motions in limine and motion for summary judgment. It would be a great waste
of those judicial resources and supremely unfair for us to undo all of that work at appellants’
request after they literally did nothing to object to the motions for over a year. Although we
recognize that it is not a common occurrence that a party waives its entire case on appeal, we
think it appropriate, necessary, and in the interests of justice to strictly apply the rule in this
case.
¶ 28 III. CONCLUSION
¶ 29 For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.
¶ 30 Affirmed.
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