Enbridge Energy LLC. v. Kuerth , 2018 IL App (4th) 150519-B ( 2018 )

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Enbridge Energy (Illinois), L.L.C. v. Kuerth, 2018 IL App (4th) 150519-BAppellate Court ENBRIDGE ENERGY (ILLINOIS), L.L.C., n/k/a Illinois Extension
Caption Pipeline Company, Plaintiff-Appellee, v. DEBRA S. KUERTH, as
Trustee of the Debra S. Kuerth Trust, Under the Declaration of Trust
Dated January 29, 2007; THE DEBRA S. KUERTH TRUST, Under
Declaration of Trust Dated January 29, 2007; NONRECORD
CLAIMANTS; and UNKNOWN OWNERS, Defendants-
Appellants.–ENBRIDGE ENERGY (ILLINOIS), L.L.C., n/k/a
Illinois Extension Pipeline Company, Plaintiff-Appellee, v.
KENNETH L. KUERTH; DIANNE KUERTH; NONRECORD
CLAIMANTS; and UNKNOWN OWNERS, Defendants-Appellants.
District & No. Fourth District
Docket Nos. 4-15-0519, 4-15-0520 cons.
Filed February 27, 2018
Decision Under Appeal from the Circuit Court of Livingston County, Nos. 14-ED-12,
Review 14-ED-13; the Hon. Mark A. Fellheimer, Judge, presiding.
Judgment Affirmed.
Counsel on Thomas J. Pliura, of LeRoy, for appellants.
Appeal
Gerald A. Ambrose, Steven J. Horowitz, Brian A. McAleenan, and
Dale E. Thomas, of Sidley Austin LLP, of Chicago, John M. Spesia
and Jacob E. Gancarczyk, of Spesia & Taylor, of Joliet, and
Christopher J. Spanos, of Hinshaw & Culbertson LLP, of Peoria, for
appellee.
Panel JUSTICE STEIGMANN delivered the judgment of the court, with
opinion.
Justices Holder White and DeArmond concurred in the judgment and
opinion.
OPINION
¶1 This case, which is an appeal from a condemnation proceeding under the Eminent Domain
Act (Act) (735 ILCS 30/5-5-5(c) (West 2014)), is before this court for the second time. The
first time resulted in Enbridge Energy (Illinois), L.L.C. v. Kuerth, 2016 IL App (4th) 150519,
69 N.E.3d 287 (hereinafter Kuerth I). In Kuerth I, we resolved some of the issues that case
presented but remanded the case to the trial court with specific directions regarding further
proceedings. Id. ¶¶ 173-83. The trial court has conducted those further proceedings and has
returned the case to this court so that we may now resolve all of the issues this appeal presents.
¶2 I. Procedural History
¶3 In April 2014, the Illinois Commerce Commission (Commission) granted plaintiff,
Enbridge Energy (Illinois), L.L.C., now known as the Illinois Extension Pipeline Company
(IEPC), eminent-domain authority to acquire easements for the construction of an oil pipeline
project known as the Southern Access Extension (SAX). Marathon Petroleum Company
(Marathon) contributed to the cost of the pipeline and has the contractual right to
approximately two-thirds of the pipeline’s capacity.
¶4 In July 2014, IEPC filed for condemnation proceedings for an easement against defendants
Debra S. Kuerth and the Debra S. Kuerth Trust (Livingston County case No. 14-ED-12; this
court’s case No. 4-15-0519) and Kenneth L. Kuerth and Dianne Kuerth (Livingston County
case No. 14-ED-13; this court’s case No. 4-15-0520) (collectively, landowners).
¶5 In July 2014, landowners filed a traverse motion seeking to block construction of the
pipeline. In October 2014, landowners filed a motion for discovery and a memorandum in
support of their traverse motions. The trial court denied landowners’ request for discovery and
denied their traverse motions. The court then granted a directed verdict in IEPC’s favor,
granting it permission to build the pipeline and determining the value of compensation to be
paid to the landowners.
¶6 In Kuerth I, landowners appealed and argued that the trial court erred by (1) denying their
motion for discovery, (2) denying their traverse motions, (3) barring landowners’ testimony
concerning just compensation, and (4) barring the testimony of two potential expert witnesses.
We agreed in part, holding that the denial of the traverse motions effectively deprived
landowners of the opportunity to present relevant evidence to (1) rebut the presumptions of
public use and public necessity and (2) refute the Commission’s determination that IEPC had
engaged in good-faith negotiations when the Commission granted IEPC eminent-domain
authority. Id. ¶ 151. We otherwise affirmed the trial court. We then remanded this case to the
trial court with explicit instructions to conduct a traverse hearing. Id. ¶ 179.
¶7 On remand, landowners filed a discovery request seeking “[t]he identity of any and all, past
or present, shippers who have shipped on the SAX pipeline, the amount of product each entity
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has shipped or is shipping on the SAX pipeline and terms under which each individual entity
has shipped or is shipping on the SAX pipeline.” In February 2017, the court denied
landowners’ request for discovery.
¶8 In April 2017, the trial court conducted the traverse hearing in which the court was required
to determine “whether landowners can present (1) clear and convincing evidence to rebut the
presumptions of public use and public necessity and (2) sufficient evidence to refute the
substantial deference afforded the Commission’s good-faith determination.” Id. ¶ 174. The
court concluded that landowners did not present “clear and convincing evidence” to rebut the
presumptions of public use and public necessity or sufficient evidence to rebut “the substantial
deference afforded [to] the Commission’s good-faith determination.” Accordingly, the court
denied the traverse motion. The court also denied IEPC’s motion for sanctions against
landowners’ attorney under Illinois Supreme Court Rule 137 (eff. July 1, 2013).
¶9 This second appeal followed, and landowners now argue that (1) they presented sufficient
evidence to rebut IEPC’s presumptions by clear and convincing evidence and (2) the trial court
erred by denying their request for discovery. IEPC argues that the trial court erred by denying
their motion for sanctions. IEPC is also asking this court to impose sanctions pursuant to
Illinois Supreme Court Rule 375(b) (eff. Feb. 1, 1994).
¶ 10 We conclude that (1) the trial court’s holding that landowners failed to rebut the
presumptions of public use and public necessity was not against the manifest weight of the
evidence, (2) the trial court did not err by denying their request for discovery, and (3) the court
did not abuse its discretion in declining to award sanctions against landowners’ attorney. We
likewise decline to impose sanctions pursuant to Rule 375(b).
¶ 11 II. Background
¶ 12 A. The Condemnation Proceedings and the First Trial
¶ 13 In April 2014, the Commission granted IEPC eminent-domain authority to acquire
easements for the construction of the SAX pipeline project. Marathon contributed to the cost of
the pipeline and has the contractual right to approximately two-thirds of the pipeline’s
capacity.
¶ 14 In July 2014, IEPC filed for condemnation proceedings for an easement against
landowners. IEPC sought to acquire a route for the SAX pipeline and to determine the just
compensation to be paid to landowners.
¶ 15 In July 2014, landowners filed a traverse motion, arguing that (1) IEPC was not vested with
the authority to acquire defendant’s property, (2) the property sought to be acquired was not
necessary or convenient for the purpose for which it was sought, (3) the amount of property
taken was excessive of IEPC’s needs, (4) IEPC does not seek the property for a public use, (5)
there had been no bona fide attempt to agree with the landowners as to the just compensation
and damages to be paid, (6) the pipeline project did not constitute a public convenience or
necessity, (7) the pipeline was not a common carrier because of the restrictions on access to the
pipeline, (8) IEPC’s authority to acquire the property by eminent domain is limited to a project
that IEPC was no longer pursuing, and (9) IEPC did not have the legal authority to construct
the pipeline because it had no certificate in good standing for the project it was pursuing.
¶ 16 In October 2014, landowners filed a motion for discovery, arguing that they were entitled
to additional discovery. Later that month, the trial court denied landowners’ request for
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discovery and denied their traverse motions. The court also barred landowners from testifying
about the value of their property and barred landowners’ supposed expert witness from
testifying about the value of the property. The court, after a trial regarding the value of
landowners’ properties, directed a judgment in IEPC’s favor. The court then granted IEPC
permission to build the pipeline and determined the compensation to be paid to the landowners.
¶ 17 B. The First Appeal and Remand Instructions
¶ 18 Landowners appealed, arguing that the trial court erred by (1) denying their motion for
discovery, (2) denying their traverse motions, (3) barring landowners’ testimony concerning
just compensation, and (4) barring the testimony of two potential expert witnesses. We agreed
in part, holding that the denial of the traverse motions effectively deprived landowners of the
opportunity to present relevant evidence to (1) rebut the presumptions of public use and public
necessity and (2) refute the Commission’s determination that IEPC had engaged in good-faith
negotiations when the Commission granted IEPC eminent-domain authority. Kuerth I, 2016 IL
App (4th) 150519, ¶ 151. We otherwise affirmed the trial court. Id. ¶ 114. We then remanded
this case to the trial court with explicit instructions to conduct a traverse hearing, and we
retained jurisdiction of this appeal. Id. ¶¶ 173-80. We provided the following instructions on
remand:
“[W]hen IEPC filed its complaints for condemnation 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 presumptions, 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 [at the traverse hearing].” Id. ¶ 164.
¶ 19 C. The New Traverse Hearing
¶ 20 1. Discovery
¶ 21 Following our instructions on remand, landowners filed a discovery request seeking “[t]he
identity of any and all, past or present, shippers who have shipped on the SAX pipeline, the
amount of product each entity has shipped or is shipping on the SAX pipeline and terms under
which each individual entity has shipped or is shipping on the SAX pipeline.” Landowners
argued that this information was necessary to determine whether the project was “primarily for
the benefit, use, or enjoyment of the public.”
¶ 22 In February 2017, the trial court denied landowners’ request for discovery. The court found
the requested information to be irrelevant to the limited scope of a traverse hearing.
¶ 23 Landowners then filed a motion to reconsider and a motion for clarification regarding the
trial court’s order. In April 2017, the court denied those motions. The court concluded that
“given the limited purpose of a traverse hearing, such broad discovery is a wasteful use of
resources that would serve only to complicate, confuse, and delay the proceedings.”
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¶ 24 2. The Traverse Hearing
¶ 25 Immediately following the denial of landowners’ motion to reconsider and motion for
clarification, the trial court conducted the traverse hearing. At that hearing, the court was
required to determine “whether landowners can present (1) clear and convincing evidence to
rebut the presumptions of public use and public necessity and (2) sufficient evidence to refute
the substantial deference afforded the Commission’s good-faith determination.” Id. ¶ 174.
¶ 26 a. Public Use and Necessity
¶ 27 Landowners argued that they rebutted the presumptions of public use and public necessity
by clear and convincing evidence. Landowners noted that IEPC is a private company and that
Marathon owns a majority of the pipeline’s capacity. Based thereon, landowners contended
that this proposed pipeline “is nothing more than a private project. And it is a private project
funded and controlled by Marathon. And so if the public can’t use that [pipeline], it wouldn’t
comply with the Eminent Domain Act[,] and it wouldn’t qualify for eminent domain.”
¶ 28 The trial court rejected this argument, stating that “Marathon’s involvement in this
[pipeline] is not relevant *** to the public use and public necessity presumptions.” Thus, the
court concluded “there is not clear and convincing evidence” to rebut the presumption of
public use and public necessity.
¶ 29 b. Good-Faith Determination
¶ 30 In July 2017, the trial court resumed the traverse hearing to determine whether landowners
presented sufficient evidence to refute the substantial deference afforded to the Commission’s
determination that IEPC negotiated in good faith with the landowners. Landowners argued
they rebutted the presumption of good faith because IEPC (1) did not get an appraisal for the
value of their property, (2) only gave the landowners 10 days to respond to the original offer,
and (3) did not inform landowners of a market study they conducted.
¶ 31 The trial court held that “the evidence here is not sufficient to refute the substantial
deference afforded [to] the Commission’s good faith determination.” The court based its
decision on the lengthy history of information shared with the landowners, the offers made, the
length of time involved, and the fact that IEPC increased its original offer to purchase the
easement. In this appeal, landowners do not challenge this ruling.
¶ 32 D. Attorney Sanctions
¶ 33 The trial court then considered IEPC’s motion for sanctions against landowners’ attorney.
IEPC argued that the landowners’ attorney filed motions containing frivolous arguments that
had already been rejected by the appellate court and the Commission. Landowners’ attorney
countered that his argument was in response to the remand instructions this court gave. The
trial court agreed with landowners’ attorney, concluding that any perceived errors “don’t rise
to the level of sanctions being imposed, especially when the Appellate Court [let] them submit
what evidence they believe [is] in accordance with the remand instructions.”
¶ 34 This appeal followed.
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¶ 35 III. Analysis
¶ 36 On appeal, landowners argue that (1) they presented sufficient evidence to rebut IEPC’s
presumptions by clear and convincing evidence and (2) the trial court erred by denying their
request for discovery. IEPC argues that the trial court erred in denying their motion for
sanctions. IEPC has also asked this court to impose sanctions pursuant to Rule 375(b). We
address these issues in turn.
¶ 37 A. Rebutting the Presumptions at the Traverse Hearing
¶ 38 On appeal regarding this issue, landowners argue that (1) the trial court’s finding was based
upon a mistaken interpretation of section 5-5-5(c) of the Act; (2) Marathon’s involvement in
the pipeline is relevant to whether the pipeline is primarily for the benefit, use, or enjoyment of
the public; and (3) they presented sufficient evidence to rebut the presumptions of public use
and public necessity. 735 ILCS 30/5-5-5(c) (West 2014). We disagree.
¶ 39 1. The Applicable Statute
¶ 40 At the traverse hearing, landowners asserted that the proposed pipeline was not primarily
for the benefit, use, or enjoyment of the public within the meaning of section 5-5-5(c) of the
Act because Marathon controls two-thirds of the shipping capacity of the proposed pipeline.
Id. On appeal, landowners argue that “primarily” should be defined by a percentage of use,
concluding that “[b]ecause Marathon [owns] more than fifty percent of the pipeline’s capacity,
the primary ‘benefit, use, or enjoyment’ of the pipeline is going solely to Marathon, and the
public is thus not the primary beneficiary.”
¶ 41 “Primarily” is not defined in section 5-5-5(c) of the Act. See id. The pertinent portions of
section 5-5-5(c) read as follows:
“[I]f the exercise of eminent domain authority is to acquire property for private
ownership or control, or both, then the condemning authority must prove by clear and
convincing evidence that the acquisition of the property for private ownership or
control is (i) primarily for the benefit, use, or enjoyment of the public and (ii) necessary
for a public purpose.
***
Evidence that the Illinois Commerce Commission has granted a certificate or
otherwise made a finding of public convenience and necessity for an acquisition of
property *** for private ownership or control *** to be used for utility purposes creates
a rebuttable presumption that such acquisition of that property *** is (i) primarily for
the benefit, use, or enjoyment of the public and (ii) necessary for a public purpose.” Id.¶ 42 2. Statutory Construction
¶ 43 The primary goal of statutory construction is to determine and execute the intent of the
legislature. Sinkus v. BTE Consulting, 2017 IL App (1st) 152135, ¶ 14, 72 N.E.3d 1251. We
construe the statute as a whole and afford the language of the statute its plain and ordinary
meaning. Id. When a term is not defined in a statute, we assume that the legislature intended
the term to have its ordinary and popularly understood meaning. People v. Hill, 409 Ill. App.
3d 451, 454, 949 N.E.2d 1180, 1183 (2011). Further, when a term is undefined in a statute,
consulting a dictionary is appropriate to ascertain the plain and ordinary meaning of the term.
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Shared Imaging, LLC v. Hamer, 2017 IL App (1st) 152817, ¶ 32, 84 N.E.3d 398. A question of
statutory interpretation is reviewed de novo. Id. ¶ 14.
¶ 44 3. Analysis
¶ 45 The fundamental flaw of landowners’ argument is that they focus entirely upon who uses
the pipeline rather than who benefits from it. The Act, however, is disjunctive in nature and
allows a trier of fact to consider whether the primary benefit, use, or enjoyment of a proposed
project inures to the public. 735 ILCS 30/5-5-5(c) (West 2014).
¶ 46 Within the meaning of section 5-5-5(c) of the Act, the public will often benefit from a
pipeline. Oil, natural gas, and other energy sources are essential to modern American life and
must be transported from production facilities to refineries and ultimately to consumers.
Pipelines are necessary for this transportation and are often safer and more efficient than
transportation by train or truck. Further, we note that this court had previously rejected
landowners’ argument that the Commission erred by determining a public need existed for this
pipeline. See Pliura Intervenors v. Illinois Commerce Comm’n, 405 Ill. App. 3d 199, 208-09,
942 N.E.2d 576, 584-85 (2010).
¶ 47 As noted earlier, the legislature, in enacting section 5-5-5(c) of the Act, left the word
“primarily” undefined, so we assume the legislature intended this term to have its ordinary and
popularly understood meaning. See, e.g., Hill, 409 Ill. App. 3d at 454. “Primarily” is defined as
“[a]t first; originally,” and also “[c]hiefly; principally.” American Heritage Dictionary 983 (2d
coll. ed. 1985); see also Gaudina v. State Farm Mutual Automobile Insurance Co., 2014 IL
App (1st) 131264, ¶ 22, 8 N.E.3d 588. Thus, we define “primarily” as used in section 5-5-5(c)
of the Act as “chiefly or principally” rather than as meaning a specific percentage of use or
some other mathematical formula.
¶ 48 Therefore, landowners’ claim that the proposed pipeline was not primarily for the benefit,
use, or enjoyment of the public because Marathon controls two-thirds of the shipping capacity
of the proposed pipeline fails because it does not comport with the plain and ordinary meaning
of the term “primarily.” We will not depart from the plain meaning of the word “primarily” by
reading into that term exceptions, limitations, or conditions that conflict with the legislature’s
intent. See, e.g., Hill, 409 Ill. App. 3d at 454. Accordingly, the trial court did not err in
interpreting section 5-5-5(c) of the Act.
¶ 49 4. The Relevancy of Marathon’s Involvement
¶ 50 Landowners argue that to “determine whether the SAX pipeline is ‘primarily for the
benefit, use, or enjoyment of the public’ the trial court should have examined who was using
the capacity of the pipeline, and whether those entities who were using the pipeline were part
of the public or not.” We disagree.
¶ 51 a. Applicable Law
¶ 52 The State has the right to acquire private property by eminent domain as long as (1) the
taking is for a public use and (2) just compensation is paid to the landowner. Ill. Const. 1970,
art. I, § 15. The public use requirement can still be satisfied even if the State transfers the
property to a private entity. Southwestern Illinois Development Authority v. National City
Environmental, L.L.C., 199 Ill. 2d 225, 235, 768 N.E.2d 1, 7 (2002). Likewise, the public use
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requirement can still be met even if the public does not have the right to enter or use the
condemned property. City of Chicago v. Eychaner, 2015 IL App (1st) 131833, ¶ 52, 26 N.E.3d
501.
¶ 53 The State may also delegate the power of eminent domain to railroads, pipeline companies,
and other entities as long as the public is the primary intended beneficiary. Illinois Power Co.
v. Lynn, 50 Ill. App. 3d 77, 78, 365 N.E.2d 264, 265 (1977). Section 5-5-5(c) of the Act
provides that to acquire private property for a pipeline, the condemning authority must prove
by clear and convincing evidence that the acquisition of property is (1) primarily for the
benefit, use, or enjoyment of the public and (2) necessary for a public purpose. 735 ILCS
30/5-5-5(c) (West 2014). When the Commission grants a certificate or makes a finding of
public convenience and necessity for the acquisition of property for private ownership or
control, a rebuttable presumption arises that such acquisition is (1) primarily for the benefit,
use, or enjoyment of the public and (2) is necessary for a public purpose. Id. In a traverse
hearing, a property owner can challenge the presumptions of public use and necessity. City of
Chicago v. Midland Smelting Co., 385 Ill. App. 3d 945, 965, 896 N.E.2d 364, 383 (2008). The
burden is on the property owner to rebut these presumptions by clear and convincing evidence.
Kuerth I, 2016 IL App (4th) 150519, ¶ 140. To rebut these presumptions, a landowner must
introduce relevant evidence demonstrating that (1) the current supply of applicable energy
already exceeds the capacity of refineries, (2) the proposed pipeline would not lower the price
of energy, or (3) other compelling economic or policy considerations showing that the public,
in the aggregate, would not be the primary beneficiary of the proposed pipeline. See Lakehead
Pipeline Co. v. Illinois Commerce Comm’n, 296 Ill. App. 3d 942, 947, 957-58, 696 N.E.2d
345, 348, 355-56 (1998).
¶ 54 No bright-line test exists to determine whether the public is the primary beneficiary of a
taking. Southwestern Illinois Development Authority, 199 Ill. 2d at 240. Rather, to determine
whether the public is the primary beneficiary of a taking, courts look to (1) the actual motives
behind the taking and (2) whether the taking was an independent and legitimate decision to
further a planned public use. Id. at 240-41; Midland Smelting Co., 385 Ill. App. 3d at 971-72. A
reviewing court will likely find a taking to be constitutional when the taking is done in
furtherance of a sound economic development plan. Eychaner, 2015 IL App (1st) 131833,
¶ 71. An incidental benefit to private interests is not relevant as long as the primary benefit
inures to the public. People ex rel. City of Urbana v. Paley, 68 Ill. 2d 62, 76, 368 N.E.2d 915,
921 (1977).
¶ 55 b. Analysis
¶ 56 In this case, despite landowners’ arguments to the contrary, the trial court was not required
to examine who would be using the pipeline, the extent of any particular company’s use of the
pipeline, whether those companies were part of the public, or who would financially benefit
from the proposed pipeline. See Eychaner, 2015 IL App (1st) 131833, ¶ 52; Paley, 68 Ill. 2d at
75-76. This is because the legislature has determined that pipelines are in the public interest
and that it is efficient for private companies, rather than the government, to construct and
maintain these pipelines. See 735 ILCS 30/5-5-5(c) (West 2014). Moreover, the decision to
grant private companies the power of eminent domain to construct pipelines is well supported
by historical custom. See Alexandra B. Klass & Danielle Meinhardt, Transporting Oil and
Gas: U.S. Infrastructure Challenges, 100 Iowa L. Rev 947, 953-980 (2015). Once the
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legislature has determined, as it did by enacting section 5-5-5(c) of the Act, to let private
companies build pipelines, it is no longer relevant which company benefits or the extent to
which any particular company benefits. Instead, the trial court was required only to determine
whether the landowners presented clear and convincing evidence to rebut the presumptions of
public use and public necessity. Kuerth I, 2016 IL App (4th) 150519, ¶ 140.
¶ 57 Thus, despite landowners’ claims, Marathon’s involvement—or the extent of that
involvement—was not relevant in determining whether the pipeline is primarily for the
benefit, use, or enjoyment of the public. Thus, landowners’ argument about Marathon’s
involvement is without merit.
¶ 58 Because we conclude that Marathon’s involvement was not relevant to landowners’ efforts
to rebut the public use and necessity presumptions, we also conclude that the trial court did not
err by denying landowners’ discovery request seeking information on who would be using the
pipeline.
¶ 59 5. The Decision Was Not Against the Manifest Weight of the Evidence
¶ 60 Landowners further assert that the trial court erred because they presented “clear and
convincing evidence” at the traverse hearing to overcome the presumptions of public use and
necessity. We disagree.
¶ 61 a. Standard of Review
¶ 62 A trial court’s finding that the evidence was insufficient to overcome a presumption will
not be reversed on appeal unless the decision is contrary to the manifest weight of the evidence.
In re Marriage of Solomon, 2015 IL App (1st) 133048, ¶ 19, 29 N.E.3d 560. A decision is
contrary to the manifest weight of the evidence when the opposite conclusion is apparent or
when the decision is unreasonable, arbitrary, or not based on the evidence. Vaughn v. City of
Carbondale, 2016 IL 119181, ¶ 23, 50 N.E.3d 643.
¶ 63 b. Analysis
¶ 64 As noted earlier, section 5-5-5(c) of the Act provides that to acquire private property for
private benefit or control via eminent domain, the condemning authority must prove by clear
and convincing evidence that the acquisition of the property is (1) primarily for the benefit,
use, or enjoyment of the public and (2) necessary for a public purpose. 735 ILCS 30/5-5-5(c)
(West 2014). When the Commission grants a certificate or makes a finding of public
convenience and necessity for an acquisition of property for private ownership or control, a
rebuttable presumption arises that such acquisition is (1) primarily for the benefit, use, or
enjoyment of the public and (2) is necessary for a public purpose. Id. In a traverse hearing, a
property owner must present clear and convincing evidence to rebut the presumptions of public
use and public necessity. Kuerth I, 2016 IL App (4th) 150519, ¶ 140.
¶ 65 Here, landowners presented no relevant evidence to rebut those presumptions. Instead, the
only evidence landowners presented was evidence showing that private companies would own
and benefit from a proposed pipeline. However, as we emphasize again, who owns or benefits
from a proposed pipeline is not relevant evidence to rebut the applicable presumptions.
Because landowners did not introduce any relevant evidence to show that the public, in the
aggregate, would not be the primary beneficiary of the pipeline, they utterly failed to meet their
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burden to rebut the presumptions of public use and necessity. Accordingly, the trial court’s
decision was not contrary to the manifest weight of the evidence.
¶ 66 B. Trial Court’s Denial of Sanctions
¶ 67 IEPC argues that the trial court erred in denying its motions for sanctions against
landowners’ attorney. We disagree.
¶ 68 The decision whether to award sanctions is within the sound discretion of the trial court and
will not be reversed absent an abuse of discretion. Olsen v. Staniak, 260 Ill. App. 3d 856, 863,
632 N.E.2d 168, 175 (1994). The trial court is in the best position to determine whether
sanctions are warranted and abuses its discretion only if no reasonable person would adopt the
court’s decision. Villaverde v. IP Acquisition VIII, LLC, 2015 IL App (1st) 143187, ¶ 69, 39
N.E.3d 144.
¶ 69 In this case, the trial court denied sanctions because it believed that landowners’ attorney
was complying with our remand instructions. Considering the complexity of this area of law
and our lengthy remand instructions, we conclude that the trial court’s decision was not an
abuse of discretion. Olsen, 260 Ill. App. 3d at 863.
¶ 70 C. Rule 375(b) Sanctions
¶ 71 Finally, IEPC moved for sanctions pursuant to Rule 375(b), which we ordered taken with
the case. IEPC argues that landowners’ attorney filed a frivolous appeal because they have
raised similar “private pipeline” arguments in other cases. We disagree.
¶ 72 A reviewing court may impose sanctions against a party for an appeal that is either
frivolous or taken for an improper purpose. Ill. S. Ct. R. 375(b) (eff. Feb. 1, 1994). An appeal is
frivolous when (1) it is not reasonably well-grounded in fact; (2) not warranted by existing law;
(3) is not a good-faith argument for the extension, modification, or reversal of existing law; or
(4) a reasonable attorney would not have brought the appeal. Goldberg v. Michael, 328 Ill.
App. 3d 593, 600, 766 N.E.2d 246, 252 (2002). An appeal is for an improper purpose when the
primary purpose of the appeal is to delay, harass, or cause needless expense. Id. at 600-01.
Rule 375(b) sanctions are penal in nature and should only be applied to cases falling strictly
within the language of the rule. Belfour v. Schaumburg Auto, 306 Ill. App. 3d 234, 244, 713
N.E.2d 1233, 1240 (1999).
¶ 73 Although landowners ultimately lost at trial and on appeal, we conclude that a reasonable
attorney could have brought this appeal because this area of law was unsettled until this
opinion. For those reasons, we also conclude that the appeal was not brought for the primary
purpose of delaying, harassing, or causing needless expense.
¶ 74 In so concluding, we note that this opinion answers questions that were left unanswered in
Kuerth I. Given that these same lawyers are involved in other pending cases concerning the
SAX pipeline, any lawyer who hereafter makes arguments that we have rejected in this opinion
would be exposing himself or herself to possible sanctions pursuant to Rule 137 or Rule 375 or
both.
¶ 75 IV. Conclusion
¶ 76 For the reasons stated, we affirm the trial court’s judgment and decline IEPC’s request for
sanctions. As a final matter, we thank the trial court for its patience and diligence in this
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complicated matter.
¶ 77 Affirmed.
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