Department of Transportation v. Anderson ( 2008 )

No. 3-07-0877
_________________________________________________________________
Filed July 8, 2008
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 2008
DEPARTMENT OF TRANSPORTATION, ) Appeal from the Circuit Court
STATE OF ILLINOIS ) of the 10th Judicial Circuit,
) Peoria County, Illinois,
Plaintiff-Appellee, )
)
v. )
)
LEROY W. ANDERSON, )
)
Defendant-Appellant, )
)
and ) No. 07-ED-2
)
SPEEDWAY SUPERAMERICA LLC, a )
Delaware limited liability )
company, as successor to Emro )
Marketing Company, a Delaware )
corporation; EDWARD T. )
O’CONNOR, III, Peoria County )
Treasurer; UNKNOWN OWNERS AND )
NONRECORD CLAIMANTS, ) Honorable
) Joe Vespa,
Defendants-Appellees. ) Judge, Presiding.
_________________________________________________________________
JUSTICE LYTTON delivered the opinion of the court:
_________________________________________________________________
Plaintiff Illinois Department of Transportation (Department)
filed a complaint for condemnation of a parcel of property owned by
defendant Speedway Superamerica LLC (Speedway). Speedway and
defendant Leroy Anderson, as an interested party, filed a traverse
and motion to dismiss, which the trial court denied. On appeal,
Anderson contends that the trial court’s quick-take order must be
reversed because the Department neglected to provide him with
statutory letters of notice and failed to negotiate in good faith
prior to filing its complaint. We affirm.
In 1971, Anderson owned a parcel of land along Illinois Route
40 which Marathon Oil Company (now known as Speedway) wanted to
purchase for use as a gas station. The parties entered into an
option to purchase, contingent upon Speedway securing an access
permit to Route 40 from the Department. The Department refused to
issue Speedway a permit unless Speedway agreed to sell the State a
52-foot strip off the east end of the property for future widening
of Route 40. As a result of Speedway’s negotiations with the
Department, Speedway and Anderson entered into an "Option to
Purchase Amendment." The amendment stated that Anderson agreed to
convey an additional 52 feet on the west side of the parcel in
consideration for which Speedway would pay to Anderson the price of
the 52-foot strip on the east side of the parcel when the
Department acquired the strip at a later date.
Anderson subsequently conveyed the entire parcel, including
the additional 52-foot strip at the west end, to Speedway by
warranty deed with no reservations. The option to purchase
amendment was not incorporated in or attached to the deed.
In 1993, the Department made plans to widen Route 40. At that
time, Anderson recorded an affidavit with the recorder of deeds
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office, which referenced the August 1971 option to purchase
amendment and indicated that it was being filed to provide notice
"of the interest claimed by [Anderson] in any proceeds."
One year later, the Department began developing preliminary
engineering plans for the project. The plans provided for the
Department to acquire the entire Speedway parcel, not just the
easterly 52-foot portion. In 1997, the Department appraised the
Speedway parcel and made an offer of $352,500. The offer included
acquisition of the store building. Speedway rejected the offer.
In March 2004, the Department engineers completed the "pre-
final" engineering plans for the project. The plans and plats
showed the Department needed to acquire the entire parcel from
Speedway. In April of 2004, the Department appraiser Randy Neff
viewed the parcel and submitted a written appraisal valuing the
property at $643,000. Searle contacted Speedway and advised the
company that the Department had completed its appraisal and would
soon make an offer. Speedway closed the station in June 2004.
Between April 2004 and May 2005, when the offer was finally
submitted, there were numerous conversations and negotiations
between the parties. Department acquisition specialist Rhonda
Searle testified that she negotiated with Speedway and kept a log
of all contacts. Although she discussed Anderson’s interest with
the Department’s title company, the Department was "not sure what
Anderson’s interest was." Searle said she was instructed to obtain
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a quit claim deed from Anderson once the offer was accepted.
The Department finally transmitted an offer to Speedway for
$643,000 on May 2, 2005. The offer provided for the acquisition of
the Speedway parcel by dedication rather than fee simple title and
showed the highest and best use as a convenience store/gas station.
The offer included a quit claim deed from Anderson to the State.
However, Searle did not transmit the offer or a quit claim deed to
Anderson.
In October of 2006, the Department reappraised the property.
The revised report appraised the property at $379,000. The
Department sent an offer to Speedway in the revised amount. The
new offer included acquisition of the station, but did not include
a quit claim deed from Anderson to the State. Unlike the 2005
offer, the offer and appraisal indicated that the highest and best
use of the land was as a vacant lot. Speedway refused the offer,
and the two parties failed to reach an agreement.
The Department sent a letter to Anderson in January of the
following year, requesting that Anderson sign an enclosed quit
claim deed to the State. The letter did not include a copy of the
appraisal or statement of the basis of compensation. Anderson
declined to execute the quit claim deed.
In April 2007, the Department filed its complaint for
condemnation along with a motion for immediate vesting of title
under the "quick-take" provisions of the Eminent Domain Act (Act)
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(735 ILCS 30/20-5-5, 25-7-103.1 (West 2006)). Anderson and
Speedway both filed traverses and motions to dismiss. Anderson’s
traverse was based on the Department’s failure to provide statutory
letters pursuant to sections 10-5-15(c) and 10-5-15(d) of the Act
(735 ILCS 30/10-5-15(c),(d) (West 2006)) and the Department’s
failure to negotiate in good faith prior to filing its condemnation
complaint.
At the hearing on the quick-take and traverse motions, the
trial court heard argument on Anderson’s motion and indicated that
he would deny the motion. At the close of the evidentiary hearing,
the court set the matter over for closing arguments without ruling
on either the traverse issue of good faith negotiations or the
issue of preliminary just compensation. On the date set for
argument, the Department and Speedway indicated that they had
reached an agreement as to preliminary just compensation in the
amount of $500,000. An order was entered, over Anderson’s
objection, denying both traverses and motions to dismiss and fixing
preliminary just compensation in the amount of $500,000. Anderson
filed an interlocutory appeal pursuant to Supreme Court Rule
307(a)(7). 166 Ill. 2d R. 307(a)(7).
ANALYSIS
I.
Anderson first argues that he is an "owner" within the meaning
of the Act and that the Department’s failure to provide him with
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the statutorily required letters is fatal to the Department’s
condemnation complaint.
Under section 10-5-15 of the Act, the condemnor must first
contact and advise the "property owner" of the proposed land
acquisition and then send a letter "to the owner of the property"
at least 60 days before filing a condemnation complaint informing
the owner of any appraisal and the basis of compensation. 735 ILCS
30/10-5-15(c),(d) (West 2006). The term "owner" is not defined in
the Act.
In general, ownership is described as "the collection of
rights allowing one to use and enjoy property, including the right
to convey it to others." Black’s Law Dictionary 1131 (7th ed.
1999). Under common law, ownership is not restricted to mere
title. However, there are certain minimum elements that must be
present for a person to be considered an owner of property. Mason
v. Rosewell, 107 Ill. App. 3d 943 (1982). An owner can include one
who has control or occupation of the land although not being the
record titleholder, but that person must possess the rights to
control and enjoy the property. Wheaton College v. Department of
Revenue, 155 Ill. App. 3d 945 (1987). The primary elements of
ownership are the rights of possession, use and enjoyment, the
right to change or improve the property, and the right to alienate
the property. Wheaton College, 155 Ill. App. 3d 945.
Anderson argues that he is an "owner" based on the 1971 option
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to purchase amendment and the affidavit he recorded in 1993.
Neither of these documents gives him an ownership interest in the
property.
First, the option to purchase amendment concerned an agreement
between Anderson and Speedway that, in the event the Department
acquired the eastern 52-foot portion of the property, Speedway
would remit the compensation it might receive from the State for
that portion of the property to Anderson. That agreement was not
recorded. Two months later, in October 1971, Anderson conveyed the
entire parcel of property to Speedway by warranty deed. The
warranty deed does not reference or incorporate the amendment to
the option. The deed does not contain a reservation of any
ownership or other interest in Anderson. Thus, Anderson cannot
assert ownership of the 52-foot section. In re Marriage of Kendra,
351 Ill. App. 3d 826 (2004) (execution of warranty deed, without
reservations, extinguishes all ownership rights in real property);
see also Brown v. Lober, 75 Ill. 2d 547 (1979).
Second, the affidavit filed in 1993 merely recited that
Anderson had an interest in the proceeds of the sale. It did not
state that Anderson held an ownership interest in the eastern
portion of the parcel. Thus, the affidavit does not give Anderson
an ownership interest in the property.
Moreover, Anderson is not an owner under common law.
Regardless of actual title, Anderson does not possess, use or
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otherwise control the property. See Wheaton College, 155 Ill. App.
3d 945. All that he possesses is a potential interest in any
condemnation proceeds that might be received by Speedway.
Anderson conveyed the entire parcel of real property,
including the eastern portion, to Speedway by warranty deed.
Consequently, he is not an owner of the property for purposes of
the Act, and the Department was not required to negotiate with him
prior to filing its complaint.
II.
Next, Anderson argues that even if he is not an owner, he
still has standing, as a "party interested" in the equity of the
property, to assert that the Department breached its common law
duty to negotiate in good faith. Anderson bases his argument on
section 10-5-10(a) of the Act, which provides that a condemnation
complaint may be filed when, among other things, the compensation
to be paid for the property "cannot be agreed upon by the parties
interested." 735 ILCS 30/10-5-10(a) (West 2006).
An interlocutory appeal from an order denying a traverse and
motion to dismiss is authorized by Supreme Court Rule 307(a)(7)
(166 Ill. 2d R. 307(a)(7)) and is limited to the three issues
delineated in subsection 20-5-10(b) of the Act. Department of
Transportation v. 151 Interstate Road Corp., 209 Ill. 2d 471
(2004); Southwestern Illinois Development Authority v. Vollman, 235
Ill. App. 3d 32 (1992). Those three issues are (1) whether the
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plaintiff has the authority to exercise the right of eminent
domain, (2) whether the property sought by plaintiff is subject to
exercise of the right of eminent domain, and (3) whether the right
of eminent domain is being properly exercised in the proceedings.
735 ILCS 30/20-5-10(b) (West 2006). Good faith negotiations are
part of the larger issue of the propriety of exercising eminent
domain power. Department of Transportation v. Hunziker, 342 Ill.
App. 3d 588 (2003). Thus, an attempt to reach an agreement with a
property owner is a condition precedent to the exercise of the
right of eminent domain. 151 Interstate Road Corp., 209 Ill. 2d
471.
For a party to have standing, the party must suffer some
injury in fact to a legally cognizable interest and must have
sustained, or be in immediate danger of sustaining, a direct injury
as a result of the complained-of conduct. Brockett ex rel.
Brockett v. Davis, 325 Ill. App. 3d 727 (2001). That a party may
suffer in some abstract way will not suffice; there must be a
direct injury to his property or rights. Brockett, 325 Ill. App.
3d at 730-31.
In this case, Anderson attempts to raise a challenge to the
third issue under section 20-5-10(b), claiming that the Department
failed to properly exercise its right of eminent domain because it
did not negotiate with Speedway in good faith. However, Anderson
lacks any basis to challenge the propriety of the negotiations
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between the Department and the land owner concerning the amount of
compensation for property in which he has no claim of ownership.
See 151 Interstate Road Corp., 209 Ill. 2d 471. According to the
statute, the State is only required to conduct good faith
negotiations with the "owner of the property." 735 ILCS 30/10-5-
15, 20-5-10(b) (West 2006). As we have previously determined,
Anderson does not have an ownership interest in any portion of the
real estate at issue. Thus, Speedway was the only party with whom
the Department was required to negotiate before filing an eminent
domain complaint. The Department did negotiate with Speedway, and
the parties were unable to reach an agreement.
In effect, Anderson is attempting to assert the arguments
raised by Speedway in its traverse and motion to dismiss. Speedway
has not appealed from the trial court’s ruling, and Anderson does
not have a legally cognizable right to pre-filing negotiations.
Accordingly, Anderson lacks standing to challenge or seek review of
the propriety of the negotiations between the Department and
Speedway prior to the eminent domain action.
III.
Anderson also claims that his status as an "interested party"
in the property precluded the trial court from entering an order
for preliminary just compensation based only on the agreement
between the Department and Speedway.
Quick-take is a proceeding within an eminent domain
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proceeding, whereby title and possession to property is placed in
the State prior to a final determination of just compensation.
Department of Public Works and Buildings v. Dust, 19 Ill. 2d 217
(1960). It is a means to prevent delays to public projects and to
protect the rights of a land owner, by allowing the issue of
compensation to be litigated at a later date. 151 Interstate Road
Corp., 209 Ill. 2d at 478-79. Before a trial court may enter an
order awarding title and preliminary compensation, there must be a
finding in a quick-take hearing that the plaintiff has the right to
take the subject property by eminent domain. Dust, 19 Ill. 2d at
219; 735 ILCS 30/20-5-10(b). Interlocutory appeals from quick-take
hearings are limited to the three issues listed in section 20-5-
10(b). Vollman, 235 Ill. App. 3d at 36. All other issues,
including compensation, are subject to appeal only at the
conclusion of the eminent domain proceeding. Vollman, 235 Ill.
App. 3d at 36.
Anderson’s interest is limited to a contractual percentage of
the amount of final compensation to be paid by the Department to
Speedway, the property owner. Based on the option to purchase
amendment, Anderson possesses an interest in the proceeds that
might be paid to Speedway and the potential value of the 52-foot
parcel of real estate described in the amendment. Where, as here,
an interested party merely has a stake in a portion of the
condemnation proceeds, that party’s rights to those proceeds
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attaches only after the amount of just compensation has been
determined by the court. See Vollman, 235 Ill. App. 3d 32. In
this case, the issue of just compensation has yet to be determined,
and Anderson may not seek review of the issue of the propriety of
the amount of the preliminary just compensation in an interlocutory
appeal.
CONCLUSION
The judgment of the circuit court of Peoria County is
affirmed.
Affirmed.
CARTER, J., and MCDADE, PJ., concurring.
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