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

2017 IL App (4th) 150544
NOS. 4-15-0544, 4-15-0545 cons. FILED
July 6, 2017
IN THE APPELLATE COURT Carla Bender
4th District Appellate
OF ILLINOIS Court, IL
FOURTH DISTRICT
ENBRIDGE PIPELINE (ILLINOIS), LLC, ) Appeal from
n/k/a Illinois Extension Pipeline Company, LLC, ) Circuit Court of
Plaintiff-Appellee, ) DeWitt County
v. (No. 4-15-0544) ) No. 14ED3
EDWARD HOKE, SONNA H. HOKE, NON- )
RECORD CLAIMANTS, and UNKNOWN OWN- )
ERS, )
Defendants-Appellants. )
____________________________________________ )
ENBRIDGE PIPELINE (ILLINOIS), LLC, ) No. 14ED4
n/k/a Illinois Extension Pipeline Company, LLC, )
Plaintiff-Appellee, )
v. (No. 4-15-0545) )
PMC FARMS, LLC; CHARLES MURPHY, Tenant; )
NON-RECORD CLAIMANTS; and UNKNOWN ) Honorable
OWNERS, ) William Hugh Finson,
Defendants-Appellants. ) Judge Presiding.
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 plain-
tiff, Enbridge Pipeline (Illinois), LLC, now known as the Illinois Extension Pipeline Company
(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 In July and August 2014, IEPC filed separate complaints for “condemnation of
permanent and temporary easements for common-carrier pipeline” against defendants (1) Ed-
ward Hoke and Sonna H. Hoke (Hokes) (DeWitt County case No. 14-ED-3; this court’s case No.
4-15-0544) and (2) PMC Farms, LLC, and its tenant, Charles Murphy, (PMC) (DeWitt County
case No. 14-ED-4 and this court’s case No. 4-15-0545) (collectively, landowners). Through its
condemnation filing, IEPC sought to obtain right-of-way and easement interests in landowners’
respective properties and determine just compensation for both interests. Thereafter, landowners
each filed a “traverse and motion to dismiss” (traverse motions), requesting dismissal of IEPC’s
condemnation complaints. In December 2014, the trial court denied both traverse motions.
¶3 At a jury trial that began in May 2015, IEPC presented its case-in-chief. Thereaf-
ter, the trial court permitted IEPC to conduct a voir dire inquiry of Edward and Charles out of the
jury’s presence. Immediately following IEPC’s inquiry, the court granted IEPC’s motion to bar
the testimony of Edward and Charles regarding the (1) fair-market value of their properties be-
fore and after installation of the SAX project and (2) damages incurred to the value of their re-
maining property after completion of the SAX project. The court also granted IEPC’s oral mo-
tion to exclude landowners’ expert’s valuation testimony pursuant to Illinois Supreme Court
Rule 213(g) (eff. Jan. 1, 2007) because the expert failed to disclose the basis for his valuation
opinions as required by Illinois Supreme Court Rule 213(f)(3) (eff. Jan. 1, 2007). IEPC then
moved for directed verdicts on its condemnation suits. Following argument, the court (1) granted
directed verdicts in IEPC’s favor and (2) awarded landowners compensation of $8500 in case
No. 14-ED-3 and $2000 in case No. 14-ED-4.
¶4 Landowners appeal, raising numerous claims that challenge the trial court’s rul-
ings. For the reasons that follow, we vacate the trial court’s denial of landowners’ traverse mo-
tions and remand with directions for further proceedings.
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¶5 I. BACKGROUND
¶6 A. Procedural History
¶7 We provide the following synopsis of the pertinent litigation involving the SAX
project to place landowners’ appeal in context.
¶8 1. IEPC’s Application for a Certificate in Good Standing
and Eminent-Domain Authority
¶9 In August 2007, IEPC applied for a certificate in good standing and other relief
pursuant to section 15-401 of the Common Carrier by Pipeline Law (Pipeline Law) (220 ILCS
5/15-401 (West 2006)). (The Pipeline Law appears under article XV of the Public Utilities Act
(220 ILCS 5/1-101 to 20-120 (West 2006)).) IEPC sought the Commission’s authorization to (1)
construct, operate, and maintain the SAX project and (2) acquire, when necessary, private prop-
erty under eminent-domain authority to install and maintain the SAX project as permitted by sec-
tion 8-509 of the Public Utilities Act (220 ILCS 5/8-509 (West 2006)). IEPC described the pro-
posed SAX project as a 36-inch diameter underground oil pipeline, originating from IEPC’s
Flanagan terminal located near Pontiac, Illinois, and terminating approximately 170 miles south,
at IEPC’s Patoka terminal located near Patoka, Illinois. The planned SAX project traversed 679
tracts of land located in the counties of Livingston, McLean, DeWitt, Macon, Shelby, Christian,
Fayette, and Marion. Specifically, IEPC sought (1) a 60-foot wide permanent easement right-of-
way for the pipeline and (2) an additional 60-foot temporary easement to facilitate construction.
¶ 10 In July 2009, the Commission issued an order in docket No. 07-0446, granting
IEPC a certificate in good standing but denying IEPC’s request for eminent-domain authority. As
to eminent domain, the Commission instead urged that IEPC continue negotiations with land-
owners who had declined the compensation IEPC had offered in exchange for the aforemen-
tioned easements on the landowners’ respective properties. The Commission’s order provided,
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however, that IEPC could renew its request for eminent-domain authority by “demonstrating that
it has made reasonable attempts to obtain easements, through good-faith negotiations.”
¶ 11 Some affected landowners (intervenors) appealed the Commission’s grant of the
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) (Intervenors I). Specifically, we
rejected intervenors’ argument that the Commission erred by determining that (1) IEPC was fit,
willing, and able to construct, operate, and maintain an oil pipeline and (2) a public need existed
for the pipeline. Id. at 208-09, 942 N.E.2d at 584-85. The Supreme Court of Illinois later denied
intervenors’ petition for leave to appeal. Pliura Intervenors v. Illinois Commerce Comm’n, 239
Ill. 2d 589, 943 N.E.2d 1108 (2011) (table).
¶ 12 2. IEPC’s Renewed Petition for Eminent-Domain Authority
¶ 13 In July 2013, IEPC renewed its request for eminent-domain authority, seeking to
condemn 148 of the 679 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) de-
clined IEPC’s compensation offers despite extensive negotiations. (IEPC’s continued negotia-
tions reduced the number of “holdout” landowners from 148 to 127, meaning approximately
81% of landowners had reached an agreement with IEPC.)
¶ 14 In December 2013, an administrative law judge (ALJ) conducted a hearing on
IEPC’s request for eminent-domain authority. A senior engineer employed by the Commission
testified, in pertinent part, that approval to exercise eminent-domain authority required IEPC to
show that (1) reasonable attempts were made to acquire the outstanding land rights through
good-faith negotiations and (2) additional attempts to acquire the land rights at issue would have
been unsuccessful. In evaluating those two metrics, the engineer stated that the Commission con-
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siders numerous factors, which include—but are not limited to—the following: (1) the number
and extent of the petitioner’s contacts with the landowner, (2) whether the petitioner explained
its compensation offer to the landowner, (3) whether the compensation the petitioner offered was
comparable to offers made to similarly situated landowners, (4) petitioner’s efforts to address
landowner concerns, and (5) the likelihood that further negotiations would be successful. After
testifying about IEPC’s efforts as to each of these five factors, the engineer recommended that
the Commission approve IEPC’s petition for eminent-domain authority. In April 2014, the ALJ
recommended that the Commission grant IEPC eminent-domain authority.
¶ 15 Later that month, the Commission issued its written order, in which it accepted
the ALJ’s recommendation and granted IEPC eminent-domain authority. In so doing, the Com-
mission explained that the grant of a request for eminent-domain authority under section 8-509
of the Public Utilities Act requires “a utility [to] show that it made a reasonable attempt to ac-
quire the property at issue.” The Commission then recognized that as to the aforementioned five
factors, sufficient evidence was presented to show that (1) the number, nature, and extent of
[IEPC’s] contacts with the landowners had been adequate; (2) IEPC adequately explained its of-
fer of compensation to landowners; (3) IEPC’s offers were comparable to offers made to similar-
ly situated landowners, noting that IEPC’s offers for the easements were 125% of fee value; (4)
IEPC made an effort to address landowner concerns by making adjustments to the SAX route to
avoid certain structures, land features, or wooded areas; and (5) “given the large numbers of
holdouts and the length of time that has elapsed during the negotiation phase, the situation is un-
likely to change on a large scale absent the Commission granting [IEPC] the right to exercise
eminent domain.”
¶ 16 Intervenors affected by the Commission’s grant of eminent-domain authority ap-
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pealed, and this court affirmed. Pliura Intervenors v. Illinois Commerce Comm’n, 2015 IL App
(4th) 140592-U (Intervenors II). Pertinent to this appeal, we rejected intervenors’ argument that
the Commission’s grant of eminent-domain authority was not supported by substantial evidence
that IEPC had engaged in good-faith negotiations. Id.
¶ 17 3. IEPC’s Motion To Reopen
¶ 18 In May 2014, IEPC filed a “Motion to Reopen and Amend Order Concerning Di-
ameter of the [SAX],” requesting an amendment to the July 2009 certificate in good standing that
the Commission issued in docket No. 07-0446. Specifically, IEPC’s amendment sought only to
reduce the pipeline’s diameter from 36 to 24 inches.
¶ 19 In support of its motion, IEPC alleged that uncertain economic conditions and
market demand for a different grade of crude oil caused IEPC to reevaluate the original parame-
ters of the SAX project. Based on these changed factors, IEPC calculated that the capacity re-
quirements of the SAX project would be approximately 300,000 barrels per day (bpd) of oil,
which “can be readily accommodated by a 24-inch outside diameter pipeline.” (In its August
2007 application for a certificate in good standing, IEPC determined that the capacity of the 36-
inch pipeline was approximately 400,000 bpd.) With regard to its 300,000 bpd approximation,
IEPC had received long-term contractual commitments from Marathon Petroleum Company
(Marathon) and another undisclosed oil shipper for a total volume of approximately 210,000 bpd.
IEPC stated that the remaining 90,000 bpd capacity would be available to other shippers of light
and heavy crude.
¶ 20 In June 2014, the Commission reopened docket No. 07-0446, and at a later evi-
dentiary hearing, an ALJ considered (1) written and oral direct testimony and (2) oral cross-
examination testimony on IEPC’s May 2014 motion to amend. Thereafter, the parties to that liti-
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gation filed, in pertinent part, additional posthearing briefs. In its November 2014 posthearing
reply brief, IEPC acknowledged that in July 2014, Enbridge Energy Company, Inc. (IEPC’s par-
ent company) agreed to sell to a 35% equity interest in the SAX project to Marathon.
¶ 21 In December 2014, the ALJ recommended that the Commission grant IEPC’s mo-
tion to amend, subject to certain conditions. Later that month, the Commission determined that
public convenience and necessity required issuance of an amended certificate to authorize a 24-
inch pipeline. In particular, the Commission found that (1) a public need for the 24-inch pipeline
existed; (2) no other substantial changes specified in the original certificate, such as pipeline
route and easement width, were proposed or granted; and (3) the 24-inch pipeline would not im-
pose additional burdens on landowners than the originally proposed 36-inch pipeline.
¶ 22 Intervenors appealed, arguing that the Commission erred by amending the July
2009 certification because (1) the Commission’s findings were not supported by substantial evi-
dence, (2) IEPC’s certificate in good standing had expired, and (3) IEPC was no longer a com-
mon carrier by pipeline because of self-imposed limits that excluded the public. As to the last
argument, intervenors contended that (1) IEPC lost its certification by selling a 35% interest in
the SAX project to Marathon, (2) Marathon’s 35% interest converted the SAX project into a pri-
vate pipeline, and (3) the 24-inch amendment to the SAX project discriminated against the gen-
eral public by not making the SAX capacity available on an equal basis.
¶ 23 In March 2016, this court affirmed the Commission’s order, rejecting intervenors’
(1) sufficiency-of-the-evidence, (2) expiration, and (3) private-pipeline claims. Pliura
Intervenors v. Illinois Commerce Comm’n, 2016 IL App (4th) 150084-U (Intervenors III). The
Supreme Court of Illinois later denied intervenors’ petition for leave to appeal. Pliura
Intervenors v. Illinois Commerce Comm’n, No. 120757 (Ill. Sept. 28, 2016).
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¶ 24 B. The Issues on Appeal
¶ 25 The issues presented in this appeal concern primarily the trial court’s rulings on
the following two issues: (1) landowners’ traverse motions, including landowners’ requests for
discovery prior to the traverse hearing, and (2) IEPC’s condemnation suit, which includes land-
owners’ challenges to the trial court’s underlying evidentiary rulings. The following chronologi-
cal discussion is confined to those two issues.
¶ 26 1. IEPC’s Final Offers and Condemnation Filings
¶ 27 In separate letters, both dated May 19, 2014, IEPC proffered a final offer of
$23,354 to the Hokes and $4573 to PMC for a 60-foot permanent right-of-way and a 60-foot
temporary work-space area to be used during construction of the SAX project. IEPC informed
landowners that (1) the final offer would expire in 10 days and (2) if landowners rejected the fi-
nal offer, IEPC would file suit against landowners to enforce its interests.
¶ 28 In July and August 2014—after landowners failed to respond to its offers—IEPC
filed separate “complaints for condemnation of permanent and temporary easements for common
carrier pipeline,” seeking to determine the just compensation for its right-of-way and easement
interests in landowners’ respective properties. Appended to IEPC’s motion was the Commis-
sion’s April 2014 order in docket No. 13-0446, which granted IEPC eminent-domain authority.
¶ 29 2. Landowners’ Traverse Motions and Requests for Discovery
¶ 30 In August and September 2014, the Hokes and PMC, respectively, filed a traverse
motions, alleging that the following circumstances required dismissal of IEPC’s condemnation
suit:
“1. [IEPC] is not properly vested with authority to acquire the property of
[landowners] by proceeding in eminent domain.
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2. *** [T]he property sought to be acquired *** is not necessary or con-
venient for the purpose for which it is sought to be taken.
3. *** [T]he amount of property sought to be taken *** is in excess of
[IEPC’s] needs.
4. [IEPC] does not seek to use the property sought *** for a public use.
5. *** [T]here has been no bona fide attempt to agree with [landowners]
as to the just compensation and damages to be paid for the property sought to be
taken.
6. *** [T]he project for which [IEPC] seeks to acquire [landowners’ prop-
erty] does not constitute a public convenience or necessity.
7. *** [T]he project does not constitute a common carrier because of re-
strictions on access to the proposed pipeline.
8. [IEPC’s] authority to acquire the property by eminent domain is limited
to a project that [IEPC] is no longer pursuing and is not transferrable to a new and
different project.
9. [IEPC] does not possess the legal authority to construct the pipeline ***
because it has no certificate in good standing *** for the project it is pursuing and
the certificate it previously obtained is expired and is not transferable to a differ-
ent project.”
¶ 31 In October 2014, landowners filed memoranda in support of their traverse mo-
tions, asserting, in part, that because a traverse motion concerns the protection of a property
owner’s land rights, such a filing is not—as IEPC claims—the equivalent of a motion to dismiss
under section 2-619(a)(9) of the Code of Civil Procedure (Civil Code) (735 ILCS 5/2-619(a)(9)
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(West 2014) (a court can involuntarily dismiss a cause of action on the grounds “[t]hat the claim
asserted against defendant is barred by other affirmative matter avoiding the legal effect of or
defeating the claim”)). Specifically, landowners alleged that a traverse motion hearing involves
an evidentiary proceeding, which necessitates discovery and “resembles a trial more than it does
a conventional motion hearing.” Landowners asserted further that the “points initially raised by
[their] traverse [motions], will require additional discovery not available to [landowners] prior to
filing.”
¶ 32 3. The Hearing on Landowners’ Discovery Requests
and Traverse Motions
¶ 33 We note that at the time of the November 2014 hearing on landowners’ discovery
requests and traverse motion filings, (1) this court had published Intervenors I, which affirmed
the Commission’s July 2009 grant of a certificate in good standing issued to IEPC in docket No.
07-0446; (2) Intervenors II—which challenged the Commission’s grant of eminent-domain au-
thority to IEPC in docket No. 13-0446—was pending before this court; and (3) the parties were
aware that pending before the Commission was IEPC’s motion to amend the certificate in good
standing in docket No. 07-0466 to reflect the installation of a 24-inch diameter pipeline instead
of a 36-inch diameter pipeline, which this court had yet to consider in Intervenors III.
¶ 34 To facilitate the reader’s understanding of a traverse motion, we provide the fol-
lowing brief synopsis of the motion’s purpose:
“ ‘A traverse and motion to dismiss challenge plaintiff’s right to condemn
defendants’ property. [Citations.] It is settled law in Illinois that when a traverse is
filed, the burden is on the plaintiff to make a prima facie case of the disputed al-
legations. [Citations.] A prima facie case for the necessity of a condemnation is
made by introducing a resolution or ordinance of the governing body which
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makes a finding that the condemnation is necessary. [Citations.] The agency that
has been granted the power of eminent domain, rather than the court, has the au-
thority to decide whether the exercise of the power is necessary to achieve an au-
thorized purpose. Absent a clear abuse of this authority, the court will not inquire
into the need or propriety of its exercise. [Citations.] Accordingly, where plaintiff
establishes a prima facie case, it becomes the burden of defendant to show that
there was an abuse of discretion by the governing board. [Citations.]’ ” 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)).
¶ 35 At the November 2014 hearing, the trial court first considered landowners’ re-
quests for discovery. Landowners acknowledged that trial courts in Kankakee, Livingston,
McLean, and Will Counties had considered and rejected such requests made by similarly situated
landowners. Landowners then argued that the reason discovery was necessary prior to the court’s
consideration of their traverse motions was to facilitate landowners’ further inquiry into whether
IEPC (1) was constructing a different pipeline than the SAX project the Commission approved in
July 2009 in docket No. 07-0446, (2) provided a genuine good-faith offer and conveyed the ba-
ses for its offers, and (3) was constructing a private pipeline by virtue of Marathon’s ownership
interest in the SAX project. Landowners also requested to depose “individuals who have ***
submitted *** affidavits” regarding their land-valuation methodology.
¶ 36 In response, IEPC argued that landowners were essentially attempting to re-
litigate issues that had been considered and adjudicated by the Commission. In support of its ar-
gument, IEPC noted the Commission’s orders in docket Nos. 07-0446 (granting IEPC certifica-
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tion to build the SAX project) and 13-0446 (granting IEPC eminent-domain authority). IEPC
claimed that docket No. 07-0446 was a final order by virtue of this court’s conclusion that the
Commission correctly determined (1) IEPC “was fit, willing, and able to construct, operate, and
maintain” the SAX project and (2) the SAX project satisfied a public need. Intervenors I, 405 Ill.
App. 3d at 207-09, 942 N.E.2d at 583-85. As to docket No. 13-0446, IEPC noted that the Com-
mission’s grant of eminent-domain authority remained a valid, enforceable order despite
intervenors’ then-pending appeal to this court in Intervenors II. IEPC argued further that because
landowners’ discovery requests were “improper collateral attacks” on the Commission’s deter-
minations, no discovery was warranted.
¶ 37 After considering further argument by the parties, the trial court denied landown-
ers’ request for discovery prior to the traverse hearing. In so ruling, the court stated that after
considering the parties’ filings in support of and in opposition to landowners’ discovery requests
and traverse motions, which included IEPC’s July and August 2014 condemnation complaints,
the court did not view landowners’ discovery requests “appropriate.”
¶ 38 Prior to conducting a hearing on landowners’ traverse motions, the trial court re-
cessed briefly to consider City of Springfield v. West Koke Mill Development Corp., 312 Ill. App.
3d 900, 728 N.E.2d 781 (2000). The court did so because IEPC had argued during the court’s
consideration of landowners’ request for discovery that this court’s decision in Koke Mill stood
for the proposition that a traverse motion is essentially a motion to dismiss under section 2-
619(a)(9) of the Civil Code.
¶ 39 Upon resuming the hearing, IEPC again noted the Commission’s orders granting
(1) a certificate in good standing to IEPC in docket No. 07-0446 and (2) eminent-domain au-
thority to IEPC in docket No. 13-0446. IEPC acknowledged that section 5-5-5(c) of the Eminent
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Domain Act (735 ILCS 30/5-5-5(c) (West 2014)) provided landowners the ability to rebut the
statutory presumptions established by the aforementioned orders—specifically, that IEPC’s in-
terests in landowners’ respective properties were (1) “primarily for the benefit, use, or enjoyment
of the public”; and (2) “necessary for a public purpose.” IEPC argued that landowners had not
presented the requisite clear and convincing evidence to rebut those presumptions.
¶ 40 IEPC then attempted to explain that the offers made to landowners for IEPC’s in-
terests were based on 125% of the fee value of the landowners’ respective properties. Landown-
ers’ objected, arguing that IEPC’s explanation was improper because they were entitled to an
evidentiary hearing where they could cross-examine IEPC’s appraiser. The trial court overruled
landowners’ objections, stating as follows:
“As [the court] read from [Koke Mill], this [traverse proceeding] is akin to a 2[-
]619 motion [to dismiss.] [L]ogically, that makes sense because *** the traverse
and motion to dismiss is attempting to do the same thing a 2[-]619 motion would
do. To rule on a 2[-] 619 motion, the court certainly doesn’t need live body testi-
mony. Affidavits, exhibits, [and] things like that suffice. [Landowners’] objection
is overruled.”
¶ 41 After IEPC concluded its argument, landowners attempted to call their first wit-
ness. The trial court interrupted, stating that “[the court has] already said [the traverse hearing is]
a 2[-] 619 type hearing.” When landowners requested to make an offer of proof regarding the
content of the expected testimony, the court responded, as follows:
“As [the court] said, this is in the nature of a hearing in a motion under 2[-] 619
[of the Civil Code. The court is] not aware of any authority for any testimony on
that kind of a motion, or even for an offer of proof. So, the request to present an
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offer of proof is denied.”
After further argument, the court denied landowners’ traverse motions.
¶ 42 4. Landowners’ Counterclaim
¶ 43 In December 2014, landowners filed a “counterclaim for damages to the remain-
der,” in which they sought compensation from IEPC for the “substantial, irreparable, and una-
voidable” damages to the remainder of their respective properties caused by the impending in-
stallation of the SAX project. Landowners claimed that such damage included (1) “the inherent
danger of environmental damage, including the possibility of catastrophic environmental damage
consequent to a breach, leak, or other failure of the pipeline”; (2) “the inherent danger to life,
limb, and property resultant from a fire and/or explosion consequent to a breach, leak, or other
failure of the pipeline”; (3) “diminished resale value”; (4) “necessary restrictions on current and
future use of the property”; (5) “diminished crop yields”; (6) “diminished ground stability”; (7)
“water drainage disruption and displacement”; and (8) “future costs associated with the removal
of the abandoned pipeline.”
¶ 44 5. IEPC’s Motions In Limine and the Trial Court’s Judgment
¶ 45 Thereafter, IEPC filed a series of motions in limine, seeking to bar testimony from
witnesses landowners disclosed as “controlled expert witnesses” pursuant to Illinois Supreme
Court Rule 213(f)(3) (eff. Jan. 1, 2007). We confine our factual discussion, however, to IEPC’s
motion in limine as to landowners’ expected valuation testimony.
¶ 46 On December 11, 2014, IEPC deposed landowners separately. During Edward’s
testimony, he opined that the Hokes’ 80-acre parcel of farmland was worth $15,000 per acre for
an overall valuation of $1.2 million. Edward estimated that the value of the Hoke farmland
would be reduced by 30% following installation of the SAX project (from $15,000 per acre to
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$10,500 per acre for a reduced valuation of $840,000). Edward acknowledged that the easement
IEPC was requesting for the SAX project represented 0.578 acres of the Hokes’ 80-acre parcel.
¶ 47 Charles opined that PMC’s approximately 66-acre parcel was worth $15,000 per
acre for an overall valuation of $990,000. Charles estimated that the value of the property would
be reduced by 30% following installation of the SAX project (from $15,000 per acre to $10,500
per acre for a reduced valuation of $693,000).
¶ 48 On December 18, 2014, landowners filed a document titled “Consolidated ***
Rule 213(f)(3) Disclosures,” in which Edward and Charles stated their intent to provide expert
opinions as to (1) the fair-market value of their respective properties before and after installation
of the SAX project and (2) the damages incurred to the value of their remaining property after
installation of the SAX project. Landowners’ disclosure filing continued, as follows:
“The bases of [landowners] opinions are *** personal knowledge of the property
values, knowledge of the property[,] and the unique aspects of the geography.
[Landowners are] qualified to speak to these issues based upon [their] personal
knowledge and observation and extensive experience as an owner, manager[,] and
farmer of the land. [Landowners] may additionally testify as to any opinions ex-
pressed in [their respective] discovery depositions.”
¶ 49 In January 2015, IEPC filed a motion in limine, seeking to bar the testimony of
Edward and Charles as controlled expert witnesses, arguing that neither landowner was qualified
to testify as a land-valuation expert under Rule 213(f)(3). IEPC also argued that although land-
owners were permitted to provide lay witness opinion testimony regarding the market value of
their land, such testimony could be deemed inadmissible if landowners (1) were unfamiliar with
the land or (2) had no reliable basis for their valuation estimate.
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¶ 50 In March 2015, landowners filed a document titled “Additional Supplemental
Rule 213(f) Disclosure,” in which Edward and Charles reconfirmed their intent to provide con-
trolled expert opinion testimony as to the fair-market value of their properties. Edward and
Charles revised the basis for their respective opinions, as follows:
“[The] basis for these opinions is *** knowledge of the real estate market for
farmland in DeWitt County, further research into farm sales, conversations with
farm real estate brokers, conversations with farm managers, *** experience as a
farmer ***, *** prior experience with easements on [the] property, *** under-
standing of the risks associated with the construction of the pipeline through the
use of the temporary and permanent easements, including: interference with the
rest of the property’s farming operations during the construction period and the
damages that will occur to the land as a result of the construction process.”
Edward and Charles also noted that based on their review of the Enbridge Contractor Safety Pro-
gram Manual, 2013 edition, mandatory hydrostatic testing would create an unsafe zone for 100
feet on either side of the proposed pipeline, which they opined would “likely create fear and
stigma associated with the pipeline” and negatively impact the remainder value of their land.
¶ 51 Following an April 2015 hearing, the trial court barred Edward and Charles from
testifying about the value of their respective properties as controlled expert witnesses. The court,
however, granted Edward and Charles the opportunity to provide lay witness opinion testimony
as to the overall market value of their land, provided their testimony was “competent and other-
wise admissible.” The court then agreed with IEPC that if landowners intended to present lay
witness opinion testimony, IEPC could voir dire Edward and Charles outside of the jury’s pres-
ence to challenge the admissibility of their valuations.
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¶ 52 C. The Hearing on IEPC’s Condemnation Suit and Landowners’
Counterclaim for Damages to the Remainder
¶ 53 We note that the jury trial on IEPC’s condemnation suit and landowners’ counter-
claim occurred over a four-day period (May 27 to 29, 2015, and June 1, 2015). We provide only
a brief summary of the evidence we deem appropriate to resolve the parties’ dispute.
¶ 54 1. IEPC’s Evidence
¶ 55 Robert Cox, a licensed professional land surveyor, testified about certified plats
he created, depicting the permanent and temporary easements IEPC sought on the properties
owned by the Hokes and PMC. As to the Hokes’ 80-acre parcel, Cox opined that (1) the perma-
nent easement was 0.5785 acres and (2) the temporary easement, which included a second tem-
porary work-space easement, was 2.5797 acres. As to PMC’s 66 1/2-acre parcel, Cox opined that
the permanent easement was 0.3073 acres and (2) the temporary easement was 0.1171 acres.
¶ 56 Lance Lunte, an Illinois licensed real estate appraiser since 1991, testified that his
goal in this case was to calculate the fair-market value of IEPC’s interest in landowners’ proper-
ties. Lunte defined market value as “what a willing buyer would pay and a willing seller would
accept in cash when the buyer is not forced or compelled to buy and the seller is not compelled
to sell.” In July and August 2014, Lunte completed appraisal reports on the Hoke and PMC
properties, respectively, utilizing a “sales comparison approach,” which involved calculating a
“highest and best use estimate” based on the size and characteristics of the respective properties.
The highest and best use of a property is “[t]he use which would give the property its highest
cash market value as of the effective date of value.” The sales comparison approach is one of
three generally accepted methods to estimate value, and as Lunte explained, it operates in the
following manner:
“[T]he sales comparison approach is a comparison of the property that you’re ap-
- 17 -
praising with properties that are comparable to it that have sold, thereby indicat-
ing a most probable sale price of the property that you’re appraising, based on the
*** comparable data. So the *** principle of substitution between properties
leads to an indication of value.”
¶ 57 Based on zoning, physical characteristics, and the feasibility of supporting a po-
tential use, Lunte determined that the highest and best use of the PMC property was a combina-
tion of “agricultural, timber recreation, and pasture.” Lunte reiterated that when using the compa-
rable sales approach, “[y]ou’re illustrating that these properties have similar characteristics, and
you’re selecting those and explaining those so you can arrive at your opinion of value.” Lunte
then testified in detail about the specifics of the seven comparable properties on which he based
his appraisal. Lunte valued PMC’s property at $9500 per acre for a total value of $632,000.
¶ 58 After determining the overall value of PMC’s parcel, Lunte calculated the change
in “contributory value” of the permanent easement portion IEPC was acquiring from PMC,
which he explained, as follows:
“[T]he fee estate of the property, which includes all the rights of the property, and
that would be the rights included before the easement is impressed, *** which we
refer to *** as the bundle of rights, [in] that [a landowner has] the right to use the
property unencumbered, you’ve got the right to rent the property, you’ve got the
right to market and sell it, you can give it away, or you can do nothing with it. ***
[The property is] not encumbered by any particular easement or any encumbranc-
es whatsoever. The value of the easement strip after the easement is impressed has
reduced rights. There were rights that were acquired from that strip, and so there
is an estimate, based on market evidence, what the level or the bundle of rights
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that are remaining to the property owner, what can the property owner do with
that piece of property, based on the loss of rights, and that can lead to the estimate
of the value of the area after the easement [has] been impressed.”
¶ 59 Lunte valued the permanent easement area before installation of the SAX pro-
ject—that is, “what does that particular part of the property contribute to the whole property”—at
$4000. Lunte estimated a $1500 diminution caused by PMC losing a portion of its bundle of
property rights to IEPC. Lunte explained that after installation of the SAX project on PMC’s
property, the original $4000 value of the permanent easement portion would be reduced to
$2500. Lunte clarified that the $1500 diminution represented that portion of PMC’s property that
“is not a fee simple ownership any more [because] that part of the property is encumbered.”
¶ 60 With regard to the temporary easement, Lunte stated that because PMC would
only be giving up a portion of its rights for a two-year period, PMC should be reimbursed for the
value of the temporary easement for that time period. Lunte utilized a “fair return to value”
methodology, which he described as determining the market value of the temporary easement
and then applying a fair rate of return for the two-year term. In his analysis, Lunte used a
$13,000 per acre valuation and what he characterized as a generous 8% return on investment. (It
is unclear from the record the precise calculations underpinning the $13,000 per acre valuation.)
Lunte noted that the temporary easement calculation would result in an approximately $244 val-
uation ($13,000 per acre x 0.1171 acres x 0.08 rate of return x 2-year term = $243.57). Lunte de-
cided to “round up” the valuation to $500.
¶ 61 Lunte explained the “damages to the remainder” calculation placed a value on the
remaining land that was located outside of the permanent easement. Lunte assigned no value to
that category because there was “no change in the highest and best use of the remainder property
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compared to conditions before the easement.”
¶ 62 As to the Hoke property, Lunte “followed the same appraisal process and meth-
odology through the entire development of the appraisal and reporting” as he had accomplished
with the PMC valuation. Lunte opined that the highest and best use of the Hoke property was
“agricultural crop production with a residential homestead.” Lunte identified 10 comparable
properties used for his sales comparison valuation. Lunte then testified in detail to the specifics
of the 10 properties on which he based his appraisal. Lunte valued PMC’s property at $16,625
per acre for a total value of $1.33 million.
¶ 63 Lunte opined further that the value of the permanent easement area before instal-
lation of the SAX project on the Hoke property was $8500. The damage or diminution due to the
Hokes’ losing a portion of their bundle of rights to IEPC was $2500. Lunte explained that after
installation of the SAX project on PMC’s property, the original $8500 value of the permanent
easement portion would be reduced to $6000. Lunte then detailed his calculation of the market
value of the temporary easement by applying a $14,375 per acre valuation and an 8% return on
investment. (It is unclear from the record the precise calculation underpinning the $14,375 per
acre valuation.) Lunte’s calculation resulted in a valuation that he rounded up to $6000 ($14,375
per acre x 2.5797 acres x 0.08 rate of return x 2-year term = $5933.31). Lunte also found no
change in the fair-market value of the remainder of the Hoke property before or after installation
of the SAX project.
¶ 64 Based on his comparable sales approach analysis, Lunte provided the following
appraisal summaries:
“PMC Property
Fair Cash Value of the Property $632,000
(66.5 acres x $9500)
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Fair Cash Value of the Permanent Easement $1500
(.3073 acres)
Fair Cash Market Value of the Property $630,500
Remainder as Part of the Whole Before
the Taking
Fair Cash Market Value of the Property $630,500
Remainder After the Taking
Damage to the Property $0
Fair Market Value of the Temporary Easement $500
(.1171 acres)
Just Compensation $2000
The Hoke Property
Fair Cash Value of the Property $1,333,000
(66.5 acres x $9,500)
Fair Cash Value of the Permanent Easement $2500
(.5785 acres)
Fair Cash Market Value of the Property $1,327,500
Remainder as Part of the Whole Before
the Taking
Fair Cash Market Value of the Property $1,327,500
Remainder After the Taking
Damage to the Property $0
Fair Market Value of the Temporary Easement $6000
(2.5797 acres)
Just Compensation $8500.”
Thereafter, IEPC rested its case-in-chief.
¶ 65 2. Voir Dire of Landowners
¶ 66 In accordance with its April 2015 ruling, the trial court permitted the parties to
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voir dire Edward and Charles—outside of the jury’s presence—to challenge the competency of
their lay witness opinions regarding the value of their respective properties.
¶ 67 Edward, who was 69 years old and had been farming for 51 years, testified that he
bought the 80-acre parcel of land at issue in 1984. Edward was generally familiar with farm land
values in DeWitt County based on his attendance at farm sales and periodic information received
from his son, who is a farm manager. Edward’s knowledge of soil type and drainage also in-
formed his opinions. Edward provided the following land valuations: (1) his 80-acre parcel was
worth $15,000 per acre, (2) the fair-market value of IEPC’s permanent easement was $8700, (3)
the fair-market value of IEPC’s temporary easement was $19,350, (4) the fair-market value of
the remainder portion of his parcel before installation of the SAX project was $1,191,300, and
(5) the overall fair-market value of the remainder of his parcel following installation of the SAX
project would decrease by 30% to $833,910 (a depreciation of $357,390). Edward opined that
the total just compensation for IEPC’s interest in his property was $350,000.
¶ 68 Edward acknowledged that (1) he had no land-valuation training; (2) his land-
valuation opinions were based on comparable sales that he had received from his son during the
previous week, but which he had yet to disclose; (3) his opinion that his land was worth $15,000
per acre did not account for improvements to the land, such as his home or grain facilities; (4) he
had not conducted any verification analysis on the real estate sales he relied upon to determine
the specific nature of the property sold or the circumstances underlying those transactions; and
(5) his opinion that the remainder value of his land would depreciate by 30% was based on a
stream of payments for a windmill lease that was not finalized. Edward confirmed that he based
a portion of his remainder valuation on the fear and stigma associated with an oil pipeline and
the “risks inherently created by the presence of an oil pipeline.”
- 22 -
¶ 69 Charles, who was 59 years old and had been farming since he was a “young
child,” testified that he has farmed the 66 1/2-acre PMC property since 2003. After his mother’s
death in 2011, Charles and his two sisters owned PMC. Based on his experience farming,
Charles provided the following land valuations: (1) PMC’s parcel was worth $15,000 per acre,
(2) the fair-market value of IEPC’s permanent easement was $4609, (3) the fair-market value of
IEPC’s temporary easement was $878, (4) the fair-market value of the remainder portion of
PMC’s parcel before installation of the SAX project was $992,850, and (5) the overall fair-
market value of the remainder of PMC’s parcel following installation of the SAX project would
decrease by 30% to $694,995 (a depreciation of $297,855). Edward opined that the total just
compensation for IEPC’s interest in PMC’s land was $303,342. Charles acknowledged that he
did not use a sales comparison approach to calculate his aforementioned land value opinions.
¶ 70 Charles based his opinion that the remainder value of PMC’s land would depreci-
ate by 30% on the following factors: (1) the risks associated with the construction of the SAX
project, (2) interference with his farming operation during construction, (3) the risks inherently
created by the existence and presence of an oil pipeline, (4) the fear and stigma associated with
an oil pipeline, and (5) safety concerns associated with hydrostatic testing of the pipeline.
Charles admitted further that he had no training in land valuation and he did not know what oc-
curs during hydrostatic testing. Charles could not identify a property that sold for $15,000 per
acre that was comparable to PMC’s property.
¶ 71 Thereafter, the trial court considered arguments regarding the competency of the
lay opinion testimony provided by Charles and Edward. Afterward, the court barred Edward and
Charles from testifying, finding, in pertinent part, that their lay opinions were based on numerous
improper factors that should not have been considered, such as the fear and stigma associated
- 23 -
with oil pipelines. The court also noted that Edward and Charles both acknowledged that they
were unfamiliar with the technical land-valuation concepts upon which they based their opinions,
such as hydrostatic testing and contributory value. In addition, the court noted that many of their
respective opinions, such as the 30% depreciation estimate of the remainder of their respective
parcels, were not supported by competent facts.
¶ 72 3. IEPC’s Oral Motion To Bar Landowners’ Valuation Expert
and the Trial Court’s Ruling
¶ 73 Immediately thereafter, IEPC moved to bar landowners’ controlled expert wit-
ness, Michael S. McCann, because landowners had not complied with Illinois Supreme Court
Rule 213(g) (eff. Jan. 1, 2007), in that McCann failed to disclose to IEPC the comparable sales
he relied upon for his valuation opinions. In support of its oral motion, IEPC tendered to the trial
court landowners’ December 2014 “Consolidated *** Rule 213(f)(3) Disclosures,” which pro-
vided, in pertinent part, the following:
“The subject matter on which [McCann] will testify; the conclusions and opinions
*** and the bases therefor[e] are set forth in the attached ‘Exhibit F’. [McCann]
may additionally testify as to any opinions expressed in his discovery deposition.
The qualifications of [McCann] are set forth in the attached professional biog-
raphy. [McCann] has not prepared any written reports.”
(The record reveals that IEPC did not depose McCann.) “Exhibit F” contained a two-page, sin-
gle-spaced document that provided, in pertinent part, the following:
“The bases for *** McCann’s opinions include: His +30 years of professional ex-
perience in matters such as these, his review of the compliant and associated ma-
terials, his review of the counterclaim, his knowledge and experience of the ap-
praisal business including accepted practices in the industry, his application of the
- 24 -
[Uniform Standards of Professional Appraisal Practice] methods, [his considera-
tion of the facts related to the taking, his consideration of the facts related to the
taking], his consideration of lands and easement sales in the Illinois market, asso-
ciated and/or similar easement transactions, comparable sales, his research and
prior experience in appraising utility infrastructure easements, pertinent and rele-
vant market data, his experience as a condemnation commissioner on a pipeline
project, consideration of the physical, legal[,] and economic impact of the taking
on the remainder property and his other related business experience.”
¶ 74 IEPC also tendered to the trial court landowners’ January 2015 “Supplemental
213(f)(3) disclosures of *** McCann work file,” which provided, in pertinent part, the following:
“[Landowners] hereby disclose *** McCann’s work file including his research
and analysis of comparable market data, land sales and easement transactions, his-
torical property value trends, file notes and phone conference with Stenzel proper-
ty (Livingston) showing a 27.33% pipeline discount, paired sales and other data.
The Sales Comparison Approach and an Income Approach was used to analyze
[and] cross check the data.”
McCann’s “work file” was located on a compact disc that held numerous electronic files involv-
ing multiple properties in different counties in no discernible order. IEPC represented to the
court that the disc contained 7,000 pages of information.
¶ 75 IEPC also provided the trial court a document titled, “Plaintiff’s Exhibit 532,”
which IEPC described to the court, as follows:
“[T]his is what [IEPC] could extract from the 7,000 pages. This is sales data in
many, many counties, hundreds of sales[.] *** [I]n DeWitt County alone there are
- 25 -
178 sales.”
¶ 76 After considering further argument, the trial court ruled as follows:
“The purpose of pretrial discovery, including Rule 213(f)(3), is to provide *** in-
formation *** to the other side and to avoid surprise. *** [I]t’s been represented
that back on *** January [2015, landowners] delivered to [IEPC’s] office 7,000
pages. Well, that would be no help at all. Is there some indication of what ***
pages [McCann was] using for the DeWitt County comparables. From what the
[court has] heard, it didn’t appear there was. [IEPC] presents *** exhibit 532, ***
which includes *** 178 sales. There’s no foundation of which [sales McCann
was] relying on ***, and that’s no help either.”
The court barred McCann from testifying, finding that landowners had failed to timely disclose
the specific comparable sales McCann used to formulate his valuation opinions.
¶ 77 4. The Trial Court’s Directed Verdict Findings
¶ 78 Following a recess, landowners rested their case-in-chief. Immediately thereafter,
IEPC moved for directed verdicts on its condemnation suits. Following argument, the court
granted (1) a directed verdict in IEPC’s favor and (2) compensation of $8500 in case No. 14-ED-
3 and $2000 in case No. 14-ED-4 to landowners.
¶ 79 This appeal followed.
¶ 80 II. ANALYSIS
¶ 81 Landowners’ claims concern the following two distinct issues: (1) IEPC’s con-
demnation suit, which includes the trial court’s evidentiary rulings at the May 2015 condemna-
tion hearing, and (2) the court’s denial of landowners’ traverse motions. Prior to addressing the
merits of those claims, we first explain the unusual procedural posture of this appeal.
- 26 -
¶ 82 A. The Procedural Posture
¶ 83 As we earlier noted, the planned SAX project traversed 679 tracts of land located
in the counties of Livingston, McLean, DeWitt, Macon, Shelby, Christian, Fayette, and Marion.
While the parties’ appeal in the instant case was pending before this court, we decided Kuerth,
2016 IL App (4th) 150519, 69 N.E.3d 287. In Kuerth, Livingston County landowners challenged
IEPC’s authority to condemn a portion of their respective properties for the SAX project. In De-
cember 2016, this court sua sponte directed the parties in the instant case to file supplemental
briefs consistent with the views we expressed in Kuerth. The parties have done so. In the interest
of brevity, we briefly summarize Kuerth to provide context.
¶ 84 B. This Court’s Decision in Kuerth
¶ 85 In Kuerth, we considered the propriety of the trial court’s rulings regarding (1)
evidentiary matters prior to the condemnation proceeding and (2) the denial of the landowners’
traverse motions, in which the landowners sought to challenge IEPC’s interest in condemning a
portion of their property to install the SAX project. Id. ¶ 85.
¶ 86 As to the trial court’s evidentiary ruling, we rejected the landowners’ specific ar-
gument (among many presented) that the court abused its discretion by barring the landowners’
testimony concerning just compensation (id. ¶ 95).
¶ 87 Prior to reaching the merits of the trial court’s rulings on the landowners’ traverse
motions, we briefly discussed the rationale underpinning the legislature’s January 2007 repeal of
article VII of the Code of Civil Procedure (Pub. Act 94-1055, § 95-1-5 (eff. Jan. 1, 2007) (repeal-
ing 735 ILCS 5/7-101 to 7-129)), which had previously governed eminent-domain proceedings,
and its replacement, the Eminent Domain Act (735 ILCS 30/1-1-1 to 99-5-5 (West 2014)).
Kuerth, 2016 IL App (4th) 150519, ¶ 125, 69 N.E.3d 287. We noted that the Eminent Domain
- 27 -
Act added a new provision, section 5-5-5(c), which stated, in pertinent part, the following:
“ ‘Evidence that the [Commission] has granted a certificate or otherwise
made a finding of public convenience and necessity for an acquisition of property
(or any right or interest in property) for private ownership or control (including,
without limitation, an acquisition for which the use of eminent domain is author-
ized under the Public Utilities Act ***) to be used for utility purposes creates a
rebuttable presumption that such acquisition of that property (or right or interest
in property) is (i) primarily for the benefit, use, or enjoyment of the public and (ii)
necessary for a public purpose.’ ” Id. (quoting 735 ILCS 30/5-5-5(c) (West
2014)).
¶ 88 This court then discussed the operation of rebuttable presumptions in civil pro-
ceedings and the amount of evidence required to rebut a presumption. Id. ¶¶ 131-33. We noted
that in addition to typical presumptions, which require “sufficient” evidence to rebut, trial courts
have occasionally imposed a greater burden of production upon a party challenging a presump-
tion, which is sometimes referred to as a strong presumption. Id. ¶ 133. “Due to compelling poli-
cy considerations, a party challenging a strong presumption must present clear and convincing
evidence to rebut the presumption.” Id. ¶ 134. From that premise, we then outlined the rationale
underlying this court’s holding that the Commission’s determinations were entitled to strong def-
erence, which could be rebutted only with clear and convincing evidence to the contrary. Id.
¶ 138. Specifically, we held, as follows:
“[T]he Commission, having been vested with authority by the legislature to re-
solve the technical issues that come before it, and presumably possessing the ex-
pertise to do so, should similarly be accorded deference with regard to the issues
- 28 -
concerning the construction of a pipeline in this state. Deeming the Commission’s
findings worthy of a strong presumption is merely an acknowledgment of that ex-
pertise and would serve as a caution to trial courts to not easily disregard the find-
ings of the Commission. Strong public policy favors that the landowners should
be required to present clear and convincing evidence before the applicable rebut-
table presumptions burst.” Id. ¶ 140.
¶ 89 Although not statutorily mandated, we held further that the Commission’s deter-
mination that IEPC had negotiated in good faith with landowners, which was also based on the
Commission’s presumed expertise in determining whether to grant an entity eminent-domain au-
thority, warranted “substantial deference.” Id. ¶ 148.
¶ 90 In Kuerth, we concluded that the court’s denial of the landowners’ traverse mo-
tions effectively deprived them of the ability to (1) rebut the aforementioned statutory presump-
tions and (2) refute the Commission’s determination that IEPC had negotiated in good faith. Id.
In so concluding, we vacated the trial court’s denial of the landowners’ traverse motions and re-
manded the matter back to the trial court for the limited purpose of conducting a proper traverse
hearing. Id. ¶ 151. We then provided authority for our decision to retain jurisdiction of the mat-
ters presented despite our remand. Id. ¶¶ 154-58.
¶ 91 We reaffirm our holding in Kuerth, and because we find the facts presented in the
instant case strikingly similar to the traverse proceedings that occurred in Kuerth, we deem
Kuerth applicable to the claims raised in this appeal.
¶ 92 C. IEPC’s Condemnation Suit
¶ 93 In their original brief to this court, landowners argued that the trial court abused
its discretion by barring (1) landowners’ testimony regarding just compensation, (2) evidence
- 29 -
about other potential dangers associated with the SAX project, (3) certain witnesses from testify-
ing, and (4) McCann’s valuation opinions. Landowners also argued that the court’s directed ver-
dict in IEPC’s favor was not supported by sufficient evidence. As noted previously, in December
2016, we essentially asked landowners to revisit their initial arguments in light of Kuerth.
¶ 94 In their supplemental brief, landowners assert that, with the exception of their ar-
guments concerning their respective just compensation testimony and McCann’s valuation opin-
ions, the remaining issues they initially raised challenging the May 2015 condemnation proceed-
ing “in subject and trial court reasoning, have little to distinguish themselves from the virtually
identical issues addressed by the [appellate] court in Kuerth. Thus, landowners will not address
those issues therein.” Instead, landowners posit that the court’s barring of their just compensation
testimony and McCann’s valuation opinions “are distinct enough in facts and what rulings were
made at the trial court level that landowners believe the analysis in Kuerth is not particularly ap-
plicable here.” Accordingly, we confine our analysis to those two evidentiary issues.
¶ 95 1. The Trial Court’s Determination To Bar Landowners’
Just Compensation Testimony
¶ 96 a. The Standard of Review
¶ 97 “ ‘Generally speaking, evidentiary motions, such as motions in limine, are di-
rected to the trial court’s discretion. A trial court’s ruling on such motions will not be disturbed
on review absent an abuse of that discretion.’ ” In re Leona W., 228 Ill. 2d 439, 460, 888 N.E.2d
72, 83 (2008). “The threshold for finding an abuse of discretion is high. A trial court will not be
found to have abused its discretion with respect to an evidentiary ruling unless it can be said that
that no reasonable [person] would take the view adopted by the court.” Id.
¶ 98 b. Landowners’ Just Compensation Testimony
¶ 99 Landowners argue that the trial court abused its discretion by barring their testi-
- 30 -
mony concerning just compensation. We disagree.
¶ 100 Landowners note correctly that a property owner is permitted to testify generally
to the value of their property, provided a proper foundation is established. See Department of
Transportation v. White, 264 Ill. App. 3d 145, 151-52, 636 N.E.2d 1204, 1209 (1994) (citing
Department of Transportation v. Harper, 64 Ill. App. 3d 732, 735, 381 N.E.2d 843, 846 (1978)
(a landowner is generally qualified to express an opinion as to value of their land, but mere own-
ership is not enough unless the landowner is familiar with facts which give the property value)).
In their supplemental brief to this court, however, landowners contend—without citation to any
binding or even persuasive authority—that “if the factors considered improper are determined to
be inappropriate topics for testimony in front of a jury, discussion of such topics can be barred
without being used to bar *** landowners from stating their valuation opinions entirely.” We
reject landowners’ assertion because, simply put, it is inconsistent with long-established judicial
precedent directly addressing this issue.
¶ 101 Over five decades ago, the supreme court held that “where a witness has consid-
ered improper elements of damage, his testimony will be deemed incompetent *** even though
in part based upon proper elements.” Trunkline Gas Co. v. O’Bryan, 21 Ill. 2d 95, 100, 171
N.E.2d 45, 48-49 (1960). This proposition of law remains valid. See Department of Transporta-
tion v. Rasmussen, 108 Ill. App. 3d 615, 625, 439 N.E.2d 48, 56 (1982) (“Where a witness has
considered improper elements of damage, his testimony will be deemed incompetent, even
though in part based upon proper elements.”); see also Enbridge Energy, Ltd. Partnership v. Fry,
2017 IL App (3d) 150765, ¶ 56 (citing Trunkline approvingly for the proposition that “the [valu-
ation] testimony of a witness, who had considered an improper element of damage, would be
deemed incompetent”).
- 31 -
¶ 102 We agree with the trial court that Edward and Charles based their valuations on
numerous improper factors. These inappropriate factors included the fear and stigma associated
with oil pipelines and the unfounded speculation that hydrostatic testing—a technical process
with which landowners admitted during voir dire they were not familiar—would pose unspeci-
fied safety concerns. Accordingly, we conclude that the trial court was well within its discretion
to view landowners’ testimony as incompetent and, thus, to bar its admission.
¶ 103 2. The Trial Court’s Determination To Bar
McCann’s Expert Testimony
¶ 104 Landowners argue that the trial court abused its discretion by barring McCann’s
valuation testimony. We disagree.
¶ 105 “ ‘A trial court’s decision regarding whether an opinion has been adequately dis-
closed such that it may be admitted into evidence is reviewed applying the abuse-of-discretion
standard.’ ” Fakes v. Eloy, 2014 IL App (4th) 121100, ¶ 65, 8 N.E.3d 93 (quoting Prairie v.
Snow Valley Health Resources, Inc., 324 Ill. App. 3d 568, 576, 755 N.E.2d 1021, 1029 (2001)).
¶ 106 In this case, landowners sought to solicit testimony from McCann as a controlled
expert witness under Rule 213(f)(3), which provides, in pertinent part, as follows:
“For each controlled expert witness, the party must identify: (i) the subject matter
on which the witness will testify; (ii) the conclusions and opinions of the witness
and the bases therefor; (iii) the qualifications of the witness; and (iv) any reports
prepared by the witness about the case.” Ill. S. Ct. R. 213(f)(3) (eff. Jan. 1, 2007).
¶ 107 Rules of the Illinois Supreme Court are not mere suggestions, but, instead, have
the force of law and should be considered in the same manner as statutes. In re Danzel W., 237
Ill. 2d 285, 294, 930 N.E.2d 974, 980 (2010). “The supreme court’s underlying policy in crafting
Rule 213 concerned not only its efforts to ‘manage the complex and important process of discov-
- 32 -
ery,’ but also its efforts to ‘avoid surprise’ and ‘tactical gamesmanship.’ ” Fakes, 2014 IL App
(4th) 121100, ¶ 65, 8 N.E.3d 93 (quoting Sullivan v. Edward Hospital, 209 Ill. 2d 100, 109-10,
806 N.E.2d 645, 652 (2004)). “The importance of a party’s compliance with Rule 213(f)(3) is
shown by Rule 213(g), which provides, in pertinent part, as follows: ‘The information disclosed
in [an] answer to a Rule 213(f) interrogatory *** limits the testimony that can be given by a wit-
ness on direct examination.’ ” White v. Garlock Sealing Technologies, LLC, 373 Ill. App. 3d 309,
323, 869 N.E.2d 244, 255 (2007) (quoting Ill. S. Ct. R. 213(g) (eff. July 1, 2002)).
¶ 108 In July and August 2014—after landowners failed to respond to its offers—IEPC
filed the condemnation suits at issue, seeking to obtain right-of-way and easement interests in
landowners’ respective properties and to determine just compensation for both interests. Indeed,
the only 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 condemna-
tion as before.” Koke Mill, 312 Ill. App. 3d at 904, 728 N.E.2d at 785. Given the technical and
particularized process employed to calculate the just compensation that a condemnor should pro-
vide for its interest in a condemnee’s property, a condemnation proceeding essentially becomes a
contest on the credibility of the parties’ experts.
¶ 109 In December 2015, when landowners filed their consolidated Rule 213 disclo-
sures, they included two “calculation forms” outlining McCann’s just compensation figures.
McCann estimated that just compensation for the Hoke property was $269,473, with the follow-
ing notation: “Excluding house on the tract at this time. Will seasonably supplement.” For
PMC’s property, McCann calculated just compensation at $140,513. Landowners also disclosed
a two-page document, in which McCann affirmed that his just compensation valuations were
based, in part, on comparable sales. However, McCann did not provide any comparable sales da-
- 33 -
ta.
¶ 110 In January 2015, a few months before trial, landowners supplemented the initial
Rule 213 disclosures with McCann’s “work file,” stating that the file included McCann’s “re-
search and analysis of comparable market data, land sales[,] and easement transactions.” Our re-
view of that file shows no reasonable way to identify or even deduce the specific sales compari-
son data McCann used to calculate the fair-market values for landowners’ respective properties.
¶ 111 Landowners argue that if IEPC was not satisfied with their Rule 213 disclosures,
it had several options to obtain the specific information it sought. In this regard, landowners con-
tend that IEPC’s lack of diligence in (1) deposing McCann, (2) requesting additional discovery,
or (3) filing additional pretrial motions “is against the spirit of the discovery rules.” In support of
their claim, landowners direct our attention to the Fifth District Appellate Court’s decision in
Brdar v. Cottrell, Inc., 372 Ill. App. 3d 690, 867 N.E.2d 1085 (2007). For the reasons that fol-
low, we do not find Brdar persuasive.
¶ 112 In Brdar, the defendant sought to bar testimony from the plaintiff’s expert, chal-
lenging the adequacy of the plaintiff’s disclosures pertaining to the expert’s expected testimony.
Id. at 700, 867 N.E.2d at 1095. In rejecting defendant’s claim and affirming the trial court’s rul-
ing permitting the expert to testify, the Fifth District provided the following rationale:
“Even assuming the disclosures were untimely or inadequate, there was ample
time for [defendant] to object promptly and seek fuller disclosure in time to pre-
pare to respond to [the expert’s] testimony at trial. [Defendant] made no attempts
to do so prior to the original trial setting in this matter ***.” Id. at 701, 867
N.E.2d at 1096.
The court continued, as follows:
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“[Defendant] never sought an order to compel a more detailed disclosure, waiting
instead until after the original trial setting had been continued *** to seek to ex-
clude [the expert’s] testimony instead. This is the very type of tactical gamesman-
ship the discovery rules are meant to discourage.” Id.
¶ 113 In Department of Transportation v. Crull, 294 Ill. App. 3d 531, 690 N.E.2d 143
(1998)—a case involving the trial court’s ruling to permit the jury to consider a previously un-
disclosed opinion—this court concluded, as follows:
“[W]e reject the trial court’s implication that the Department’s counsel acted in
bad faith by not moving to strike this evidence prior to trial. ***
***
The Department’s counsel admitted that she knew before trial that the
cost-to-cure method was generally inadmissible as a basis for determining fair
market value of a condemned property. ***
***
We decline to impose upon counsel any legal, moral, or professional obligation of
any kind to inform her opponent of weaknesses in the opponent’s case, witness, or
proposed evidence. Neither Illinois law nor professional ethics require an attorney
to advise his or her opponent of such deficiencies or how to present his or her
case.” Id. at 538, 690 N.E.2d at 147-48 (1998).
¶ 114 Nine years later, in Garlock, 373 Ill. App. 3d at 324, 869 N.E.2d at 256, this court
reaffirmed Crull, stating as follows:
“In *** Crull, [294 Ill. App. 3d at 538-39, 690 N.E.2d at 148], this court
addressed the then-newly revised version of Rule 213 and wrote the following:
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‘Rule 213 establishes more exacting standards regarding disclosure than
did Supreme Court Rule 220 [citation], *** which formerly governed ex-
pert witnesses. Trial courts should be more reluctant under Rule 213 than
they were under former Rule 220 (1) to permit the parties to deviate from
the strict disclosure requirements, or (2) not to impose severe sanctions
when such deviations occur. Indeed, we believe one of the reasons for new
Rule 213 was the need to require stricter adherence to disclosure require-
ments.’
In Sullivan, the supreme court quoted this portion of our decision in Crull and
wrote, ‘We agree.’ Sullivan, 209 Ill. 2d at 110, 806 N.E.2d at 652.”
¶ 115 We adhere to our decisions in Crull and Garlock and reject landowners’ argument
that IEPC was under some obligation to ensure landowners’ compliance with the clear require-
ments established by Rule 213 to disclose the conclusions, opinions, and more important, the ba-
ses for McCann’s valuations. To hold otherwise would provide a perverse incentive to disregard
the strict disclosure requirements of Rule 213 and encourage the type of tactical gamesmanship
that occurred in this case. Accordingly, we reject landowners’ arguments that the trial court
abused its discretion by barring McCann’s valuation testimony. See Maggi v. RAS Development,
Inc., 2011 IL App (1st) 091955, ¶ 61, 949 N.E.2d 731 (a trial court abuses its discretion if (1) it
acts arbitrarily without the employment of conscientious judgment, (2) it exceeds the bounds
of reason and ignores recognized principles of law, or (3) no reasonable person would take the
position adopted by the court).
¶ 116 To the extent that Brdar holds otherwise, we decline to follow it. We also note
that Brdar involved a situation in which the appellate court affirmed the exercise of the trial
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court’s discretion regarding the appropriateness of an expert witness’ disclosure under Rule 213,
the same action we are taking with regard to the trial court’s ruling in this case.
¶ 117 D. Landowners’ Traverse Motion
¶ 118 We previously provided a summary of our decision in Kuerth, which we deemed
applicable to landowners’ claims regarding the November 2014 traverse hearing at issue in this
case. In the interest of brevity, we need not revisit (1) the legislature’s rationale for enacting a
new statutory section to govern eminent-domain issues, (2) the history and operation of rebutta-
ble presumptions, (3) the amount of evidence necessary to rebut the type of presumption at issue,
or (4) that the Commission’s good-faith finding—which is a prerequisite for granting an entity
eminent-domain authority—was entitled to substantial deference from the trial court. For our
purposes, it is sufficient to reiterate our overarching holding in Kuerth, as follows:
“Accordingly, based on the aforementioned recitation of the purpose of a traverse
hearing and the plain language of section 5-5-5(c) of the Act, we hold that when
the Commission granted IEPC a certificate in good standing to construct the SAX
project and, later, granted IEPC eminent-domain authority to complete the SAX
project, IEPC enjoyed two rebuttable presumptions—that is, that IEPC’s interest
in landowners’ respective properties was (1) primarily for the benefit, use, or en-
joyment of the public; and (2) necessary for a public purpose. For reasons that we
have already mentioned, in addition to those two rebuttable presumptions, the
Commission’s determination that IEPC engaged in good-faith negotiations, which
was a necessary finding to its grant of eminent-domain authority in IEPC’s favor,
warrants substantial deference by the trial court. Thus, after filing their respective
traverse motions, landowners were entitled to present relevant evidence to rebut
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and refute, respectively, those three issues.” Kuerth, 2016 IL App (4th) 150519,
¶ 148, 69 N.E.3d 287.
¶ 119 1. The Standard of Review
¶ 120 When reviewing the denial of a traverse motion, this court considers whether the
trial court’s determination was against the manifest weight of the evidence. City of Chicago v.
Zappani, 376 Ill. App. 3d 927, 931, 877 N.E.2d 17, 21 (2007). “Specifically, the manifest weight
of the evidence standard is applied to a trial court’s finding that a condemnor acted in good
faith.” Id. at 931-32, 877 N.E.2d at 21-22.
¶ 121 2. Landowners’ Claims of Error
¶ 122 In their supplemental brief to this court, landowners contend that the trial court
erroneously considered the traverse hearing as a motion to dismiss under section 2-619(a)(9) of
the Civil Code and consequently denied them the ability to conduct discovery, which, in turn,
effectively prohibited their ability to rebut the statutory presumptions and refute the Commis-
sion’s good-faith determination. In this regard, landowners posit that “the trial court’s discovery
ruling was reliant on and is inseparable from the question of what [a] proper Traverse procedure
is.” We agree.
¶ 123 In this case, the trial court denied landowners’ request for discovery prior to the
traverse hearing, finding that landowners’ request was not appropriate. During that hearing,
IEPC argued to the court that this court’s decision in Koke Mill stood for the proposition that a
traverse motion is essentially a motion to dismiss under section 2-619(a)(9) of the Civil Code. In
Koke Mill, this court affirmed the trial court’s denial of Koke Mill’s traverse and motion to dis-
miss because “Koke Mill did not support its [traverse motion] with any evidence of the [City of
Springfield’s] lack of [a] good faith [offer].” Koke Mill, 312 Ill. App. 3d at 908, 728 N.E.2d at
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787.
¶ 124 We reject the notion that Koke Mill stands for the broad proposition that all trav-
erse hearings are akin to a motion to dismiss under section 2-619(a)(9) of the Civil Code. We
note that Koke Mill, which was decided 7 years before the legislature’s January 2007 enactment
of the Eminent Domain Act and 15 years before our aforementioned overarching holdings in
Kuerth, involved the exercise of municipal condemnation powers under article VII of the Civil
Code, which has since been repealed. Specifically, Koke Mill involved a landowner’s challenge
to the City of Springfield’s power to condemn private property for the public purpose of widen-
ing a city road. Id. at 902, 728 N.E.2d at 783.
¶ 125 Here, the Commission, with the presumed expertise that it possesses as an agency,
exercised its condemnation powers for the purpose of acquiring private property for private own-
ership and control, which is governed by section 5-5-5(c) of the Eminent Domain Act. See 735
ILCS 30/5-5-5(b), (c) (West 2014) (promulgating different standards when a condemning author-
ity seeks to acquire property for public use versus private use, respectively). We reject IEPC’s
interpretation of Koke Mill and reiterate and reaffirm our holding that a traverse hearing is a lim-
ited proceeding that affords a landowner the first and only opportunity to challenge a
condemnor’s authority and, thus, “is akin to a hybrid proceeding in which specific presumptions
must be rebutted by landowners challenging the condemnation filing at issue.” Kuerth, 2016 IL
App (4th) 150519, ¶ 169, 69 N.E.3d 287.
¶ 126 In its supplemental brief to this court, IEPC does not address landowners’ specific
section 2-619(a)(9) claim, despite its representations to the trial court during the November 2014
hearing. Instead, IEPC responds that (1) the trial court correctly conducted the traverse proceed-
ings in accordance with Kuerth, (2) landowners failed to rebut the statutory presumptions of pub-
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lic use and public necessity, (3) landowners “presented nothing” to refute the Commission’s de-
termination that IEPC had negotiated with landowners in good faith, and (4) remand is not war-
ranted because landowners are attempting to litigate issues that this court noted in Kuerth were
“not the proper subjects of a traverse hearing” (id. ¶ 164). IEPC misconstrues the narrow issue
before us.
¶ 127 Our narrow scope of review concerns whether the trial court afforded landowners
their only opportunity to challenge the Commission’s condemnation powers—specifically, (1)
the statutory presumption of public use and public necessity and (2) the substantial deference af-
forded the Commission’s determination that IEPC made good-faith offers to landowners. Thus,
the strength of the Commission’s presumption or landowners’ likelihood of success is of no mo-
ment. At the November 2014 hearing, the court denied landowners (1) the opportunity to conduct
discovery because it was not appropriate and (2) the ability to call witnesses because it consid-
ered the hearing akin to a section 2-619(a)(9) motion to dismiss. Indeed, the court even refused
landowners’ offer of proof, which merely would have disclosed to the trial court and the oppos-
ing party the nature of the offered evidence and would have allowed this court to determine on
appeal whether the exclusion of the evidence was proper. Kim v. Mercedes-Benz, U.S.A., Inc.,
353 Ill. App. 3d 444, 452, 818 N.E.2d 713, 720 (2004). In so doing, the court effectively de-
prived landowners of the opportunity to challenge the condemnation of their respective parcels
of land afforded them under section 5-5-5(c) of the Eminent Domain Act.
¶ 128 The following passage from our decision in Kuerth fully applies to the instant
case:
“The Commission’s July 2009 grant of a certificate in good
standing and April 2014 grant of eminent-domain authority and the
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rebuttable presumptions those decisions generated in IEPC’s favor
were merely the first steps in this process. The trial court’s dismis-
sal of landowners’ traverse motions effectively deprived landown-
ers of exercising the option of presenting relevant evidence to (1)
rebut the presumptions of public use and public necessity that
IEPC possessed when it filed its condemnation suit and (2) refute
the Commission’s determination that IEPC had engaged in good-
faith negotiations when the Commission granted IEPC eminent-
domain authority.” Kuerth, 2016 IL App (4th) 150519, ¶ 151, 69
N.E.3d 287.
¶ 129 Accordingly, we vacate the trial court’s denial of landowners’ respective traverse
motions and remand for limited proceedings. As we explained in Kuerth, despite vacating the
trial court’s judgment and remanding for further proceedings, we retain jurisdiction of this ap-
peal. See id. ¶¶ 152-58 (“[B]ecause no judgment has been rendered by this court (1) no mandate
need issue and (2) this court retains general jurisdiction.”).
¶ 130 E. Directions on Remand
¶ 131 As previously noted, the issues presented in the instant case are similar to those
we addressed in Kuerth. After this court vacated the trial court’s denial of landowners’ traverse
motions in Kuerth, we provided the court comprehensive guidance regarding the appropriate
procedure to employ on remand. Id. ¶¶ 164-80. Given the length of time and amount of resources
already expended in litigating the construction of the SAX project and in the interest of judicial
economy and finality, we provide the following directions for remand.
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¶ 132 1. Limited Scope of the Traverse Hearing
¶ 133 As previously noted, in July 2014—when IEPC filed its complaints for condem-
nation against landowners’ respective properties—IEPC enjoyed the rebuttable presumptions
that its interests in landowners’ respective tracts of land were (1) primarily for the benefit, use, or
enjoyment of the public and (2) necessary for a public purpose. In addition to those presump-
tions, the Commission determined that eminent-domain authority in IEPC’s favor was warranted
because good-faith negotiations between IEPC and landowners had failed. Thus, landowners
were entitled to present relevant evidence to rebut these specific presumptions and to refute the
good-faith finding. We note, however, that in their respective July and August 2014 traverse mo-
tions, landowners disregarded the limited scope of the traverse hearing by attempting to litigate
anew the Commission’s certification and eminent-domain decisions, which this court affirmed
on appeal. In this regard, landowners claim that (1) IEPC is “not properly vested with authority
to acquire” their tracts of land, (2) the SAX project did not “constitute a common carrier because
of restrictions on access to the proposed pipeline,” (3) the Commission’s grant of eminent-
domain authority did not apply to the current SAX pipeline project, and (4) IEPC did not possess
the legal authority to construct the SAX pipeline project. Such issues are not the proper subjects
of a traverse hearing, and on remand, the trial court should decline to consider them.
¶ 134 Based on the aforementioned discussion of the proper scope of a traverse hearing,
the trial court should consider only two matters on remand, which are landowners’ claims chal-
lenging (1) the rebuttable presumptions of public use and public necessity and (2) the Commis-
sion’s determination as to good-faith negotiations, as generally set forth in paragraphs 2 through
6 of landowners’ July 2014 traverse motion.
¶ 135 2. Discovery and Proceedings on Remand
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¶ 136 Consistent with the limited nature of a traverse motion as well as our limited re-
mand, we direct the trial court to assume control of the discovery proceedings in the instant case
by requiring any discovery request to set forth with specificity (1) the information the party
seeks, (2) the alleged source of that information, and (3) the relevance of the information sought,
given the limited remand in this case. The aforementioned listing, however, does not preclude
the court from imposing further discovery requirements.
¶ 137 The trial court should determine whether any discovery sought is appropriate and
should deny any request to depose or submit interrogatories that seek information the court
deems irrelevant or that already exists in the record or in the possession of the party making the
discovery request. If the court determines that discovery—strictly limited to the aforementioned
issues—is warranted, it shall actively supervise to ensure discovery occurs in an efficient and
expeditious manner.
¶ 138 Given the extensive litigation that has already occurred in this matter and our ex-
plicit direction that the trial court conduct an expedited traverse hearing limited to the claims at
issue, the court should inquire whether any information sought by landowners through discovery
already exists in the public record in this matter. For instance, in Intervenors II, in which this
court affirmed the Commission’s grant of eminent-domain authority to IEPC, John McKay,
IEPC’s manager of land services, provided detailed testimony about the procedures IEPC em-
ployed to identify, contact, educate, and negotiate in good faith the offers IEPC extended to re-
calcitrant landowners. See Intervenors II, 2015 IL App (4th) 140592-U, ¶¶ 23-26 (summarizing
McKay’s testimony before the ALJ). Landowners, who participated in these proceedings, were
permitted to cross-examine McKay. Thus, any claim by landowners that they need to depose
McKay to refute the presumption of good faith should be met with skepticism by the court. The
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court should permit IEPC to challenge landowners’ additional requests for discovery by demon-
strating that the information sought is either irrelevant to the traverse proceedings or cumulative
because the additional discovery sought already appears in the record or is in the possession of
landowners or their counsel.
¶ 139 On remand, the trial court should conduct a two-stage traverse hearing. At the
first stage, the court should focus solely on whether landowners can present (1) clear and con-
vincing evidence to rebut the presumptions of public use and public necessity and (2) sufficient
evidence to refute the substantial deference afforded to the Commission’s good-faith determina-
tion. If the court determines that landowners have done so, then the court should proceed to the
second stage, which would contemplate a further hearing in which the parties could present evi-
dence in support of their respective positions.
¶ 140 We direct the trial court to schedule and otherwise supervise discovery and con-
duct further proceedings regarding a traverse hearing in an expedited fashion. If, in the court’s
judgment, landowners fail to (1) rebut the presumptions of public use and public necessity or (2)
successfully refute the Commission’s good-faith determination, the court should so rule as to
those specific issues, deny landowners’ traverse motion, certify the record, and return the matter
back to this court. If landowners present sufficient evidence to rebut the presumptions or to re-
fute the good-faith determination, the court should then conduct a further hearing as to those
claims on the traverse motion.
¶ 141 If the court finds in favor of one or more landowners, then it should enter an order
denying IEPC’s condemnation motion as to that landowner or those landowners. Conversely, if
the court rules in IEPC’s favor following the traverse hearing, it should enter an order to that ef-
fect. Regardless of the decision rendered, if a traverse hearing is conducted, the court should
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again certify the record and return this matter to this court so that we may then resolve this ap-
peal.
¶ 142 If the trial court finds that landowners have overcome the first-stage hurdle, then
second-stage proceedings regarding the traverse hearing shall be tried by the court instead of a
jury. In this regard, we note that section 10-5-5 of the Eminent Domain Act, which is entitled
“Compensation; Jury,” states that “[w]hen compensation is so made by the condemning authori-
ty, any party, upon application, may have a trial by jury to ascertain the just compensation to be
paid.” 735 ILCS 30/10-5-5(a) (West 2014). No such provision entitling landowners to a jury de-
termination in a traverse hearing appears in section 5-5-5 of the Eminent Domain Act, which
governs traverse hearings and appears immediately preceding section 10-5-5 of the Eminent
Domain Act. See Hamilton v. Conley, 356 Ill. App. 3d 1048, 1056, 827 N.E.2d 949, 957 (2005)
(a tenet of statutory construction provides that if one section of a statute contains a specific pro-
vision, the absence of that same provision from a similar section is significant to show a different
legislative intent for the statutory sections at issue). Further, our research has disclosed no case in
which the issues presented in a traverse motion were resolved by a jury.
¶ 143 3. The Timeline on Remand
¶ 144 As we noted in Kuerth, 2016 IL App (4th) 150519, ¶ 177, 69 N.E.3d 287, the ap-
pellate court, in other contexts, has remanded a cause to conduct an expedited hearing on a lim-
ited issue and imposed specific directions regarding when the trial court was expected to accom-
plish the appellate court’s direction. For example, in People v. Bohanan, 243 Ill. App. 3d 348,
612 N.E.2d 45 (1993), this court remanded the matter to the trial court for the limited purpose of
conducting an expedited hearing in accordance with Batson v. Kentucky, 476 U.S. 79 (1986). In
so doing, the appellate court provided the following directions on remand:
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“Upon completion of the preceding steps, the trial court must make both
credibility and factual determinations based on the proffered evidence. These
findings, including the record, shall be filed with the clerk of this court within 60
days of the filing of this opinion. This court retains jurisdiction for the purpose of
reviewing the trial court’s determinations pursuant to Batson. Both defendant and
the State will be permitted to submit supplemental briefs relative to this issue in
this court.” Bohanan, 243 Ill. App. 3d at 352, 612 N.E.2d at 48;
see also People v. Fellers, 2016 IL App (4th) 140486, ¶ 36 (while retaining jurisdiction over the
case, the appellate court remanded to the trial court for the limited purpose of conducting an ap-
propriate hearing on the defendant’s ineffective-assistance-of-counsel claim); Fleming v.
Moswin, 2012 IL App (1st) 103475-U, ¶¶ 45-46 (while retaining jurisdiction over the case, the
appellate court remanded to the trial court for the limited purpose of conducting a Batson hearing
within 60 days and requiring the parties to file responses within 14 days of the trial court’s ruling
on remand).
¶ 145 Unlike Bohanan, we prefer to forgo mandating that the trial court conduct the
traverse hearing within a specific time frame. Instead, we leave these timing issues to the court’s
discretion. However, given this court’s direction that the trial court should conduct an expedited
hearing limited to landowners’ traverse motions, we expect that the court will do so at the earli-
est possible opportunity.
¶ 146 Because we have concluded that the trial court failed to conduct a proper traverse
hearing, we vacate the court’s traverse order and remand this cause for the limited purpose of
conducting an expedited traverse hearing in compliance with this court’s aforementioned direc-
tions. In so ordering, this court retains jurisdiction to review the trial court’s ruling following re-
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mand. See People v. Garrett, 139 Ill. 2d 189, 195, 564 N.E.2d 784, 787 (1990) (“The appellate
court is empowered under Rule 615(b) to remand a cause for a hearing on a particular matter
while retaining jurisdiction.”).
¶ 147 Within 21 days following the trial court’s certification of the record to this court,
any party who is aggrieved by the trial court’s rulings on remand may submit to this court a sup-
plemental brief addressing any issues related solely to those rulings. Thereafter, the opposing
party or parties shall have 21 days to file any response. This court will not grant any request for
an extension of time to file supplemental briefs. Arguments on issues not directly related to the
traverse hearing on remand may not be raised without this court’s permission. In due course, this
court will issue its decision on all issues raised in this appeal.
¶ 148 III. CONCLUSION
¶ 149 For the foregoing reasons, we vacate the trial court’s traverse judgment and re-
mand with directions for further proceedings consistent with the views expressed herein.
¶ 150 Vacated; cause remanded with directions.
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