Enbridge Pipeline (Illinois), LLC v. Kiefer

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