Enbridge Energy, LLC v. Kuerth

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Enbridge Energy (Illinois), L.L.C. v. Kuerth, 2016 IL App (4th) 150519Appellate 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; NON-RECORD
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; NON-RECORD
CLAIMANTS; and UNKNOWN OWNERS, Defendants-Appellants.
District & No. Fourth District
Docket Nos. 4-15-0519, 4-15-0520 cons.
Filed December 13, 2016
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 Vacated; cause remanded with directions.
Counsel on Thomas J. Pliura (argued), of LeRoy, for appellants.
Appeal
John Spesia (argued) and Jacob E. Gancarcyzk, of Spesia & Ayers, of
Joliet, and Christopher J. Spanos, of Hinshaw & Culbertson LLP, of
Peoria, and Gerald A. Ambrose, Steven J. Horowitz, Brian A.
McAleenan, and Dale E. Thomas, of Sidley Austin LLP, of Chicago,
for appellees.
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 Energy (Illinois), L.L.C., 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 project known as the
Southern Access Extension (SAX).
¶2 In July 2014, IEPC filed separate “complaints for condemnation of permanent and
temporary easements for common carrier pipeline” against defendants (1) Debra S. Kuerth and
the Debra S. Kuerth Trust (Debra Trust) (Livingston County case No. 14-ED-12; this court’s
case No. 4-15-0519) and (2) Kenneth L. Kuerth and Dianne Kuerth (Kuerths) (Livingston
County case No. 14-ED-13; this court’s case No. 4-15-0520) (collectively, landowners)
seeking to determine the just compensation for its easement interests in landowners’ respective
properties. Thereafter, landowners each filed a “traverse and motion to dismiss” (traverse
motion), requesting dismissal of IEPC’s complaints for condemnation. The trial court later
denied landowners’ traverse motion.
¶3 After IEPC presented evidence at a May 2015 jury trial and conducted a voir dire of
landowners’ damages valuation expert, the trial court granted IEPC’s oral motion to exclude
the expert’s valuation testimony. IEPC then moved for directed verdicts on its condemnation
suits and landowners’ amended counterclaim for damages to the remainder. Following
argument, the court (1) granted directed verdicts in IEPC’s favor and (2) awarded
compensation of $7000 in case No. 14-ED-12 and $6700 in case No. 14-ED-13 to landowners.
¶4 Landowners appeal, raising numerous claims that challenge the trial court’s condemnation
and traverse judgments. For the reasons that follow, we vacate the court’s denial of
landowners’ traverse motion and remand with directions for further proceedings.
¶5 I. BACKGROUND
¶6 A. Procedural History
¶7 We provide the following brief synopsis of the pertinent litigation involving the SAX
project to place landowners’ appeals 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 pipeline; and (2) acquire, when necessary, private
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property under eminent-domain authority to install and maintain the SAX pipeline as
permitted by section 8-509 of the Public Utilities Act (220 ILCS 5/8-509 (West 2006)). IEPC
described the proposed 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. 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 urged, instead, that IEPC continue negotiations with
landowners who had declined the compensation IEPC had offered in exchange for the
aforementioned easements on the landowners’ respective properties. The Commission’s order
provided, 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 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) (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) declined IEPC’s
compensation offers despite extensive negotiations. (IEPC’s continued negotiations reduced
the number of “holdout” landowners from 148 to 127, meaning approximately 81% of
landowners reached an agreement with IPEC.)
¶ 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 metrics, the engineer stated that the Commission
considers 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 to IEPC’s efforts as to each of these five factors, the engineer
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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 (1) accepted the
ALJ’s recommendation and (2) granted IEPC eminent-domain authority. In so doing, the
Commission 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 acquire the property at issue.” In this regard, the Commission noted that the aforementioned
five factors “should be considered, among others, in determining whether the use of eminent
domain is necessary.” 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
offer of compensation to landowners; (3) IEPC’s offers were comparable to offers made to
similarly 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
pipeline 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 unlikely to change on a large scale absent the Commission granting [IEPC] the
right to exercise eminent domain.”
¶ 16 Some 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 (Intervenors II). Specifically, we rejected Intervenors’ argument that the
Commission’s grant of eminent-domain authority was not supported by substantial evidence
that IEPC 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 Diameter of
the [SAX] Pipeline,” requesting an amendment to the July 2009 certificate in good standing the
Commission issued in docket No. 07-0446. IEPC’s amendment sought only to reduce the SAX
pipeline 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 parameters of
the SAX project. Based on these changed factors, IEPC calculated that the capacity
requirements of the SAX pipeline would be approximately 300,000 barrels per day (bpd) of
liquid petroleum, which “can be readily accommodated by a 24-inch outside diameter
pipeline.” (In their 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 pledged 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 evidentiary
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
filed, in pertinent part, additional posthearing briefs. In its November 2014 posthearing reply
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brief, IEPC acknowledged that in July 2014, Enbridge Energy Company, Inc. (IEPC’s parent
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 motion to
amend, subject to certain conditions. Later that month, the Commission determined that public
convenience and necessity required issuance of the certificate as amended to authorize a
24-inch pipeline. Pertinent to this appeal, 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 impose 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
evidence; (2) IEPC’s certificate in good standing had expired; and (3) IEPC was no longer a
common carrier by pipeline because of self-imposed limits that excluded the public. As to its
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 private pipeline; and (3) the amended 24-inch SAX pipeline discriminated
against the general public by not making pipeline 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).
¶ 24 B. The Issues on Appeal
¶ 25 The issues presented in this appeal concern primarily the trial court’s rulings as to the
following issues: (1) IEPC’s condemnation suit, which includes claims regarding the
underlying evidentiary rulings; and (2) landowners’ traverse motion. We consider landowners’
claims in that order.
¶ 26 1. The Parties’ Pertinent Filings
¶ 27 a. IEPC’s Final Offers and Condemnation Filings
¶ 28 In separate letters dated May 19, 2014, IEPC proffered a “final offer” of $41,873 to the
Debra Trust and $40,305 to the Kuerths “for a [60-foot] permanent right of way and [60-foot]
temporary work space to be used as [a] right of way for the [SAX].” IEPC’s respective offers
also reflected compensation for “any applicable crop damages.” IEPC informed landowners
that (1) the final offer would expire in 10 days; and (2) if landowners rejected the final offer,
IEPC “will have no choice but to file suit against you to condemn the right-of-way property at
issue.”
¶ 29 In July 2014—after defendants failed to respond to the final offer—IEPC filed separate
“complaints for condemnation of permanent and temporary easements for common carrier
pipeline” against landowners, seeking to determine just compensation for its corresponding
interest in landowners’ respective properties. Appended to its motion was the Commission’s
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April 2014 order, which granted IEPC eminent-domain authority in docket No. 13-0446.
¶ 30 b. Landowners’ Traverse Motions and Discovery Filings
¶ 31 Later in July 2014, landowners each filed a traverse motion in their respective cases,
alleging that the following circumstances required dismissal of IEPC’s condemnation filing:
“1. [IEPC] is not properly vested with authority to acquire the property of
[d]efendants by proceeding in eminent domain.
2. *** [T]he property sought to be acquired *** is not necessary or convenient 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 the [d]efendants 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 the lands of the [d]efendants
does not constitute a public convenience or necessity.
7. *** [T]he project does not constitute a common carrier because of restrictions 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 different project.”
(In case No. 14-ED-12, Debra Trust’s traverse motion listed only the first seven allegations.)
¶ 32 In October 2014, landowners filed a memorandum in support of their traverse motions that
asserted, in part, that a traverse motion “is not the equivalent” of a motion to dismiss under
section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 2014)). Specifically,
landowners alleged that “[t]he filing of a traverse *** motion *** leads to a hearing ***;
however, *** the hearing resembles a trial more than it does a conventional motion hearing.”
(Emphasis in original.) Landowners then asserted that “[e]ach point raised in the traverse
[motion], to be fully addressed by [landowners] in the required final evidentiary hearing[,] will
require additional discovery not available to the [landowners] prior to filing.”
¶ 33 Later that month, landowners filed a “consolidated memorandum on the need for discovery
prior to the traverse hearing.” Landowners contended that discovery was required to show that
IEPC “abused its power” by (1) “attempting to pursue a project for which they have no
authority,” (2) “proceeding in this condemnation action without negotiating in good faith,” (3)
“attempting an unconstitutionally excessive taking,” (4) “authorizing an unconstitutional
taking for private benefit,” and (5) “attempting an unconstitutional taking that is not for public
use.”
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¶ 34 c. Landowners’ Amended Counterclaim
¶ 35 In November 2014, landowners filed a “counterclaim for damages to the remainder,”
which they later amended. Landowners’ April 2015 amended counterclaim sought
compensation from IEPC for the “substantial, irreparable, and unavoidable” damages to the
remainder of their respective properties caused by the impending installation of the SAX
pipeline.
¶ 36 d. IEPC’s Motions in Limine
¶ 37 In March 2015, IEPC filed a series of motions in limine seeking to bar the testimony of
certain witnesses landowners disclosed pursuant to Illinois Supreme Court Rule 213(f) (eff.
Jan. 1, 2007). In so doing, IEPC noted the following:
“In this condemnation case involving a partial taking, the only question for the jury to
decide is the just compensation to be paid to the owner of the property sought to be
condemned. [Citation.] Just compensation is the fair market value of the subject
property at its highest and best use on the date of the filing of the complaint to
condemn. [Citation.] [Landowners] have brought a counterclaim for damages to the
remainder, which is also measured by calculating the fair market value of landowners’
properties, both immediately before and after the taking. [Citation.] Thus, the only
specialized knowledge that would assist the trier of fact is expertise in calculating the
fair market value of the property.” (Internal quotation marks omitted.)
¶ 38 i. Carlisle Kelly and Daniel Summann
¶ 39 IEPC asked the trial court to bar the testimony of Carlisle Kelly and Daniel Summann,
whom landowners disclosed as “independent expert witnesses” as defined by Rule 213(f)(2)
(Ill. S. Ct. R. 213(f)(2) (eff. Jan. 1, 2007)). IEPC alleged that Kelly and Summann were not
professional appraisers qualified to provide expert opinions on the fair-market value of real
estate. Instead, Kelly and Summann were expected to testify about their personal experience
with an IEPC-owned, above-ground pipeline located on their respective properties. IEPC
argued that such testimony was “irrelevant, speculative, unfairly prejudicial, and an improper
legal conclusion.”
¶ 40 ii. Landowners
¶ 41 In January 2015, IEPC deposed landowners separately and asked each whether they could
provide an estimate of the fair-market value of their respective properties. Landowners
confirmed that they either had “no idea,” no opinion, or, in the case of Kenneth, that any
valuation he provided would be based on “speculation.”
¶ 42 In February 2015, landowners filed “Consolidated *** Supplemental Rule 213(f)
Disclosures,” in which Debra, Dianne, and Kenneth indicated their intent to provide an opinion
as to (1) the fair-market value of their properties before and after installation of the SAX
project pipeline and (2) the damages incurred to the value of their remaining property after
installation of the SAX project pipeline. Each landowner averred to the following basis for
their opinions:
“[E]xperience as an owner of the land, *** knowledge of the local land prices, research
into local area land sales, discussions with local area land owners, discussions with [an]
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attorney, research into the environmental effects of pipelines and research onto the
stigma and fear caused by pipelines.”
¶ 43 In April 2015, landowners filed a document entitled “Consolidated *** Additional
Supplemental Rule 213(f)(1) Disclosures,” in which Debra and Kenneth reconfirmed their
intent to provide lay opinion testimony as to the fair-market value of their properties. Debra
and Kenneth revised the basis for their respective opinions, as follows:
“[The] basis for these opinions is *** knowledge of the real estate market for
Livingston County, further research into farm sales, conversations with farm real estate
brokers, conversations with farm managers, *** experience as a landowner, ***
understanding 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.”
Debra and Kenneth also stated that based on their review of the “Enbridge Contractor Safety
Program Manual, 2013 edition,” mandatory hydrostatic testing would create an unsafe zone
for 200 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
property.”
¶ 44 IEPC acknowledged that landowners are competent generally to render opinions
concerning the value of their land but sought to bar landowners’ valuation testimony because
the admissions landowners made under oath at their January 2015 depositions that they had no
opinion regarding the value of their land directly contradicted claims landowners made in their
subsequent Rule 213(f) disclosures.
¶ 45 iii. Michael S. McCann
¶ 46 IEPC also sought to bar the testimony of Michael S. McCann, whom landowners disclosed
as their “controlled expert witness” under Rule 213(f)(3). Landowners noted, in pertinent part,
that McCann’s expected testimony concerned the following topics:
“[McCann] will testify to the concept of and his opinions regarding the ‘value of the
whole,’ value of the temporary easement, value of the permanent easement, fair market
value *** before the taking, [fair market value] after the taking, and the damages to the
remainder property after the taking and how these concepts apply to these matters. ***
McCann will testify to the fair cash market value of the property involved in the
condemnation.”
¶ 47 Based on discussions with landowners’ counsel, IEPC learned that McCann planned to
base his valuation, in pertinent part, on recent easement purchases IEPC transacted in Will
County. Specifically, landowners’ counsel asserted that “[i]t is our position these represent
comparable sales, and will be used to determine the value of an easement.” Based on these
representations, IEPC sought to bar McCann’s land valuation as “wildly speculative.”
¶ 48 2. The Hearings on the Parties’ Respective Filings
¶ 49 a. Landowners’ Traverse Motions and Requests for Discovery
¶ 50 We note that at the time of the October 2014 hearing on landowners’ traverse motions and
discovery filings, (1) this court had published Intervenors I, which affirmed the Commission’s
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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 authority 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.
¶ 51 To facilitate the reader’s understanding of a traverse motion, we provide a brief synopsis of
the motion’s purpose, as follows:
“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
allegations. [Citations.] A prima facie case for the necessity of a condemnation is made
by introducing a resolution or ordinance of the governing body which 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 authority to decide whether the
exercise of the power is necessary to achieve an authorized 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.]” Lake County Forest Preserve District v. First National
Bank of Waukegan, 154 Ill. App. 3d 45, 51, 506 N.E.2d 424, 428 (1987).
¶ 52 At the hearing on landowners’ traverse motions, the parties acknowledged initially that
trial courts in Kankakee, McLean, and Will Counties had considered and rejected requests for
discovery prior to conducting traverse hearings from similarly situated landowners.
Landowners also acknowledged that (1) courts in Will and Kankakee Counties had denied the
associated traverse motions and (2) the McLean County court had yet to consider traverse
motions.
¶ 53 Landowners argued that discovery was required before the traverse motion hearing to
provide further inquiry into whether IEPC (1) was constructing a different pipeline than the
SAX project the Commission approved in July 2009 under docket No. 07-0446; (2) provided
“bona-fide, good-faith offers” and conveyed the bases for its offers to the affected landowners;
and (3) was constructing a private pipeline by virtue of Marathon’s ownership interest in the
SAX project. Landowners also wanted to conduct discovery to obtain “a chance to question the
individuals that have submitted affidavits” regarding their land-valuation methodology.
¶ 54 In response, IEPC argued that the Commission issued two relevant orders in docket Nos.
07-0446 (granting IEPC certification to build SAX) and 13-0446 (granting IEPC
eminent-domain authority). IEPC posited that docket No. 07-0446 was a final order by virtue
of this court’s conclusion on appeal 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 despite Intervenors’ appeal to this court, the
Commission’s grant of eminent-domain authority remained a valid, enforceable order.
Because landowners had appeared as Intervenors in those proceedings, IEPC posited that they
are not entitled to challenge the Commission’s determinations de novo in the trial court.
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¶ 55 After considering further argument by the parties—which included landowners’ claim that
the IEPC’s certificate in good standing had expired—the trial court took a short recess. Upon
reconvening, the court acknowledged that it had reviewed portions of pertinent transcripts and
associated orders in the Kankakee, McLean, and Will Counties cases, which had considered
the same discovery and traverse arguments. The court explained that in so doing the court was
“formulating [its] own opinions” and determining whether those cases “reconcile with [the
court’s] thoughts or not.”
¶ 56 The trial court then denied landowners’ request for discovery prior to the traverse hearing.
Specifically, the court determined, as follows:
“[The court is] looking here just from a practical standpoint, putting it all together,
that if discovery is not going to be permitted on those issues, then [the court] think[s]
that would go hand in hand with denial of the motion to dismiss and traverse. *** [I]f it
was going to be a de novo review and discovery was going to be permitted, then it
would make it relevant and material to the motion to dismiss and motion to traverse.”
With regard to landowners’ claim that IEPC failed to negotiate in good faith, the court found
that IEPC’s May 2014 final offer was sufficient to show adequate negotiation given
landowners’ failure to respond to IEPC’s final offer.
¶ 57 b. IEPC’s Motions in Limine
¶ 58 In May 2015, the trial court made the following rulings on IEPC’s motions in limine.
¶ 59 i. Kelly and Summann
¶ 60 The trial court granted IEPC’s motion to bar Kelly and Summann from testifying, finding
that their testimony concerned a different pipeline that traversed a different property. The court
explained that any testimony concerning “a possible safety issue in the future” was
“speculative and highly prejudicial” given that the fair-market value of the proposed
easements was the sole issue before the jury.
¶ 61 ii. Landowners
¶ 62 The trial court granted IEPC’s motion in limine as to landowners, noting that “it has been
quite clear *** that at least to [landowners], they had no opinion.” The court noted that
landowners subsequently provided opinions concerning values of their property, but the court
was not going to “allow someone to facially come up with a number and not be able to support
it under the law.” The following exchange then occurred between IEPC and the court:
“[IEPC]: *** [J]ust so I am clear, the court is saying that if *** a proper foundation
is laid, that [the court is] leaving open that that [landowners] may be able to testify, if
there is a proper foundation, as to the per acre value of the farms.
THE COURT: Correct.
[IEPC]: But that is it.
THE COURT: Correct.
[IEPC]: What [the court] is saying is the motion [in limine] is granted, so
[landowners] are barred from testifying about the value of the permanent easement, the
temporary easement, remainder damage, and total just compensation.
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THE COURT: That is correct.
[IEPC]: Okay.
THE COURT: *** [The court has] got numbers here that are just numbers ***, but
at some point, there was a computation for that. And looking at all the things that
[landowners’] opinion consists of, some proper, some improper. So *** other than just
mere ownership, getting up and saying, I own the land and it is worth $14,000 an acre,
[landowners] are going to have to obviously give some information as to how they
arrived at that *** value.”
¶ 63 iii. McCann
¶ 64 As to IEPC’s motion in limine to bar testimony from McCann regarding recent easement
purchases IEPC transacted, the trial court made the following determination:
“[McCann] can give his opinion as to however his formulations, assuming it is a proper
foundation, and he is qualified, because [the court has] not heard him testify[.] [B]ut if
[McCann] gets up on that stand and *** says I have reviewed *** ten different
transactions where [IEPC] or Ameren *** went out and bought easements and they
paid XYZ for that, so that is what this one is worth, no.”
¶ 65 c. IEPC’s Condemnation Suit and Landowners’ Amended
Counterclaim for Damages to the Remainder
¶ 66 i. IEPC’s Evidence
¶ 67 At the May 2015 jury trial on IEPC’s condemnation motion and landowners’ amended
counterclaim for damages to the remainder, IEPC offered, and the trial court admitted without
objection, IEPC’s evidentiary stipulation, which provided, in part, as follows:
“The property rights being acquired *** by *** IEPC include a pipeline right-of-way
and perpetual easement to lay, construct, operate, maintain, inspect (including by aerial
patrol), remove, alter, replace, relocate[,] and reconstruct a pipeline ***.”
IEPC’s evidentiary stipulation also stated that “[t]he temporary workspace easements will
terminate upon completion of construction but in no case more than two years from the date
IEPC is given possession of the property.”
¶ 68 Andrew Brorsen, an Illinois licensed certified general real estate appraiser, who has
worked in that capacity since 1972, testified that he authored an appraisal report on the Debra
Trust’s and Kuerths’ properties in which he utilized a “comparable sales approach” to
determine the valuation of the respective properties. Brorsen explained that the comparative
sales approach is the “primary method used throughout the country for appraising rural
property.” Brorsen added that comparable “[is] generally thought of as the properties that have
sold that would be selected for a direct comparison to the property being appraised.” Brorsen
agreed with the following basic description of that appraisal technique:
“So *** a comparable sales approach [is] where you’ve got a 54-acre farm, you
determine that the highest and best use is agricultural, *** you go out then in the
market and look for transactions of agricultural properties that are comparable to that
54 acres.”
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Brorsen acknowledged that under eminent domain the “fair market cash value” of a particular
property involves an exchange in which a buyer makes an offer that a seller is willing to accept
absent any compulsion from either the buyer or seller to enter into the financial transaction.
¶ 69 Brorsen used the same six comparable property sales to appraise both the Debra Trust’s
and Kuerths’ properties because landowners’ properties were (1) roughly the same size (79.14
acres and 79.10 acres, respectively), (2) located adjacent to one another, and (3) both classified
as agricultural for highest and best use purposes. Brorsen then testified in detail to the specifics
of the six comparable properties he used to base his appraisal.
¶ 70 With regard to the category of damage to the property, Brorsen explained that to determine
the damage caused solely by the easement (the “within the permanent easement” category in
the below appraisal summary) is a “difficult” calculation because no open market exists to buy
and sell a permanent easement, and as a consequence, a comparable sales analysis based on a
willing buyer and seller absent any compulsion does not exist. In this regard, Brorsen’s
appraisal report provided the following valuation of the permanent easement:
“The value of the proposed acquisition was based on the same comparable sales
data presented for the value of the whole; however, the permanent easement will
remain in effect forever, but allows the landowner to continue to use, farm, lease, and
cross. Just compensation to the property owner is only for the rights acquired by the
pipeline and is not equal to fee value. Based on interviews with market participants, a
property with an easement may yield the same unit value as a property with no
permanent easement, but may also range to a discount of 50%. The loss or crop damage
calculations, if any, are not part of this report and would be handled outside of the
aforementioned complaint. In brief, the Value of the Permanent Easement will be 25%
of the fee value.”
¶ 71 Brorsen added that he calculated the damage to the respective properties within the
temporary easement (the “within the temporary easement” category in the below appraisal
summary) by using a “cash rental rate of $400 an acre for the contribution of the use of the land
for a two-year period.” As to the “damages to the remainder” category, Brorsen explained that
the land considered in that calculation was the remainder of the property outside of the
permanent easement. Brorsen found “no evidence that there was any change in the highest and
best use due to the impressments of an easement for a subsurface pipeline.”
¶ 72 Based on his comparable sales approach analysis, Brorsen provided the following
appraisal summary (Where appropriate, calculations have been rounded to the nearest 100.):
Debra Trust Property
Whole Property Value (79.14 acres x $11,800) $934,000
Permanent Easement Value (1.861 acres)
Before Acquisition $22,000
(1.861 acres x $11,800)
After Acquisition $16,500
($22,000 - $5,500)
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Damage to the Property
Within Permanent Easement $5500
($11,800 x 1.861 x .25 discount)
Within Temporary Easement $1500
(1.86 acres x $400 x 2 years)
Damage to the Remainder $0
Kuerths’ Property
Whole Property Value (79.10 acres x $11,800) $934,000
Permanent Easement Value (1.791 acres)
Before Acquisition $21,100
After Acquisition $15,800
Damage to the Property
Within Permanent Easement $5300
Within Temporary Easement $1400
Damage to the Remainder $0
¶ 73 ii. Landowners’ Evidence
¶ 74 Kenneth testified that he was a self-employed farmer who grows corn and soybeans. After
testifying generally to his farming experience, his review of farming periodicals, and
discussions with his banker, the following exchange occurred:
“[LANDOWNERS’ COUNSEL]: [Kenneth], do you have an opinion then as to
what the per acre value is of the farm that *** you have owned since 1990 after
reviewing all of the periodicals and talking with your banker? Do you have an opinion
*** as to what the price per acre would be on [the Kuerths’] tract and [the Debra Trust]
tract that you actually farm as well? ***
[IEPC]: Objection *** with respect to comparable sales. Also, [Kenneth] is not ***
the landowner for [Debra Trust’s] tract. [Kenneth] can’t testify to that.
THE COURT: Any response.
[LANDOWNERS’ COUNSEL]: *** The law in Illinois is that generally anybody
who is familiar with the land can testify as to value. And [Kenneth] farms the tract. He
is familiar with the value. ***
[IEPC]: *** The law is the landowner can testify with respect to his value if they
have laid a proper foundation.
THE COURT: *** [The court] will sustain the objection on both grounds. So far,
[the court has] only heard generalities as to that he referenced. [The court has] no idea
what it is anchored toward.”
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(After asking one more question, landowners’ counsel ceased his direct examination of
Kenneth.)
¶ 75 Kenneth acknowledged during cross-examination and redirect that he (1) was not an
appraiser, (2) had never spoken to McCann, (3) did not know whether the SAX pipeline would
affect his ability to farm his property, (4) was aware that others farmed property with existing
underground pipelines, and (5) would not be able to build any foundational structure over
IEPC’s permanent easement.
¶ 76 iii. Voir Dire of McCann
¶ 77 After landowners stated their intent to solicit testimony from McCann, the trial court
granted IEPC’s oral motion to conduct a voir dire to determine whether McCann’s valuation
opinions met minimum standards of reliability. In this regard, IEPC clarified that they were
challenging landowners’ ability to proffer comparable sales data to (1) determine the overall
value of the Debra Trust’s and Kuerths’ properties and (2) establish remainder damages.
¶ 78 Outside of the jury’s presence, McCann testified that the Rule 213 disclosures on the Debra
Trust’s and Kuerths’ property did not disclose any “specific particular sales” of “individual
discreet properties” by highest and best use, location, and size. Instead, McCann provided an
oral report to landowners’ attorney regarding his “general disclosure” that he had based his
valuation opinion on his review of comparable sales. McCann admitted that the previous night,
he met with landowners’ attorney, and, together, they reviewed 200 sales that were contained
in McCann’s 7000-page work file that McCann provided to IEPC in January 2015. During
their review, McCann and landowners’ attorney agreed on “the paired sales examples that I
should be prepared to talk about today.”
¶ 79 McCann admitted that when he calculated the damages to the remainder of the Debra
Trust’s and Kuerths’ properties, he relied upon the activity that would have been occurring in
the temporary construction easement areas. IEPC then began the following exchange by
quoting McCann on factors he considered in appraising a property:
“[IEPC]: Quote, remainder valuation considers the added use of pipeline
development and use in the [permanent easement] and [temporary construction
easement] areas as well as all other easement grant terms contained in the complaints[.]
[McCANN]: Yes. I’ve just considered all the issues that go into the permanent
easement, the temporary easement, what’s going into the pipeline easement area itself,
how it’s going to be used. I’ve considered all those factors in the damages that I’ve
calculated based on those various components and allocations. ***
[IEPC]: When you say damages, you are including damages to the remainder.
Correct?
[McCANN]: I’m including any compensation that the property owner at least in my
opinion is entitled *** to make them whole so that the difference in value is
compensated for whether it’s from the temp[orary] easement, the permanent easement,
or any restrictions and impairments to the remainder property.
[IEPC]: That would also include damages to the remainder. Correct?
[McCANN]: Yes. It’s damages to the property that the owner will have left.”
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¶ 80 iv. The Trial Court’s Voir Dire and Directed Verdict Findings
¶ 81 Following argument, the trial court granted IEPC’s oral motion to bar McCann’s
testimony, finding, in pertinent part, that McCann was not qualified to give a valuation
opinion.
¶ 82 Landowners then informed the trial court that they had no other witnesses but moved for a
continuance, which the court denied following argument. Immediately thereafter, IEPC moved
for directed verdicts on its condemnation suits and landowners’ amended counterclaim for
damages to the remainder. Following argument, the court granted (1) a directed verdict in
IEPC’s favor and (2) compensation of $7000 in case No. 14-ED-12 and $6700 in case No.
14-ED-13 to landowners.
¶ 83 This appeal followed.
¶ 84 II. ANALYSIS
¶ 85 As previously mentioned, landowners present numerous arguments challenging the trial
court’s judgment. Our review of landowners’ claims reveals that they concern the following
two distinct overarching issues: (1) IEPC’s condemnation suit, which includes claims
regarding the underlying evidentiary rulings; and (2) landowners’ traverse motion. We
consider landowners’ claims in that order.
¶ 86 A. IEPC’s Condemnation Suit
¶ 87 1. The Trial Court’s Evidentiary Rulings at the May 2015
Hearing on IEPC’s Motion in Limine
¶ 88 Landowners argue that the trial court abused its discretion by barring (1) landowners’
testimony concerning just compensation, (2) the planned testimony of Kelly and Summann,
and (3) landowners’ testimony concerning other potential dangers associated with the SAX
pipeline. We consider landowners’ claims in turn.
¶ 89 a. The Standard of Review
¶ 90 Generally, evidentiary motions, such as motions in limine, are directed to the trial court’s
sound discretion, and reviewing courts will not disturb a trial court’s evidentiary rulings absent
an abuse of 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.” Id. “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.¶ 91 b. Landowners’ Just Compensation Testimony
¶ 92 Landowners argue that the trial court abused its discretion by barring their testimony
concerning just compensation. We disagree.
¶ 93 We note that landowners’ challenge does not encompass the trial court’s ruling that they
could testify generally to the value of their land provided a proper foundation was established.
See Department of Transportation v. White, 264 Ill. App. 3d 145, 151-52, 636 N.E.2d 1204,
1209 (1994) (landowner is generally qualified to express opinion as to value of their land, but
mere ownership is not enough unless landowner is familiar with facts which give the property
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value (citing Department of Transportation v. Harper, 64 Ill. App. 3d 732, 735, 381 N.E.2d
843, 846 (1978))).
¶ 94 Instead, landowners challenge the trial court’s ruling that barred them from providing
opinion testimony on the same factors addressed by Brorsen, IEPC’s expert appraiser.
Specifically, landowners contend that the court abused its discretion by barring their opinions
on (1) easement valuation, (2) fair-market value of their respective properties before and after
the taking, and (3) damages to the remainder, because the court incorrectly determined that
landowners failed to provide a sufficient basis for their proposed opinions. In other words,
landowners assert that the court barred the evidence because landowners could not prove that
their opinions were reliable—that is, that they had “some peculiar means of forming an
intelligent and correct judgment as to [the] value, or the effect upon it of a particular
improvement, beyond what is presumed to be possessed by men generally.” Trunkline Gas Co.
v. O’Bryan, 21 Ill. 2d 95, 99, 171 N.E.2d 45, 48 (1960).
¶ 95 Landowners’ contention in their consolidated brief to this court that they provided a
sufficient basis for their opinions in their (1) February 2015 supplemental Rule 213(f)
disclosures and (2) April 2015 additional supplemental Rule 213(f)(1) disclosures is not
persuasive. As the trial court correctly noted, in their supplemental and additional Rule 213(f)
disclosures, landowners stated that they based their valuation opinions, in part, on “fear” and
“stigmatism” associated with oil pipelines, which the court determined was subjective,
speculative, and improper evidence. We conclude that the court was well within its discretion
to view landowners’ testimony as incompetent and, as a result, to bar its admission. See
Department of Transportation 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.”).
¶ 96 In so concluding, we express some skepticism that in the 15 days that passed between
landowners’ January 22, 2015, discovery depositions—in which they testified that they had no
opinion whatsoever of the value of their respective properties—and February 6, 2015—when
landowners filed their consolidated supplemental Rule 213(f) disclosures, landowners had
acquired a sufficient basis of knowledge to provide credible testimony regarding the elaborate
and complex task of land valuation in condemnation proceedings.
¶ 97 c. Kelly and Summann
¶ 98 Landowners argue that the trial court abused its discretion by barring the testimony of
Kelly and Summann. We disagree.
¶ 99 In support of their argument, landowners cite section 10-5-50 of the Eminent Domain Act
(Act), as follows:
“Evidence is admissible as to: *** (2) any unsafe, unsanitary, substandard, or other
illegal condition, use, or occupancy of the property, including any violation of any
environmental law or regulation; (3) the effect of such condition on income from or the
fair market value of the property ***. Such evidence is admissible notwithstanding the
absence of any official action taken to require the correction or abatement of the illegal
condition, use, or occupancy.” 735 ILCS 30/10-5-50 (West 2014).
¶ 100 Landowners claim that section 10-5-50 of the Act allows the testimony of Kelly and
Summann concerning their experiences with other IEPC-owned above-ground pipelines
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located on their respective properties. Landowners’ reliance, however, is misplaced because
section 10-5-50 of the Act applies only “if there was evidence [landowners] used [their] own
property illegally before the [condemnation].” Illinois State Toll Highway Authority v. West
Suburban Bank, 208 Ill. App. 3d 923, 928, 567 N.E.2d 730, 734 (1991).
¶ 101 In this case, the trial court barred Kelly and Summann because the court determined that
testimony concerning “a possible safety issue in the future” regarding different pipelines that
traversed different properties was “speculative and highly prejudicial.” We conclude that the
court did not abuse its discretion in so concluding.
¶ 102 d. Landowners’ Testimony as to Other Potential Dangers
¶ 103 Landowners argue that the trial court abused its discretion by barring their testimony
concerning other potential dangers associated with the SAX pipeline. We disagree.
¶ 104 The record shows that during the May 2015 hearing on IEPC’s motion in limine, IEPC
sought to bar testimony from landowners regarding how (1) previous oil spills, (2) pipeline
strength and leak inspections known as hydrostatic testing, and (3) other IEPC pipelines pose
potential hazard risks that devalue the landowners’ property. Landowners responded to IEPC’s
argument by stating (1) “there will be [oil] leaks or there have been oil leaks [that] will place a
negative stigma onto the property,” (2) the “potential hazard devalues the property,” and (3)
hydrostatic testing will negatively impact land value. In each instance, the trial court barred the
testimony, accepting IEPC’s argument that testimony regarding those issues was
inappropriate, speculative, and overly prejudicial.
¶ 105 On appeal, we have reviewed landowners’ arguments asserting numerous grounds as to
how the trial court abused its discretion in barring this testimony, which we do not find
persuasive. Accordingly, we conclude that the court did not abuse its discretion by granting
IEPC’s motion in limine as to those issues.
¶ 106 2. May 2015 Jury Trial for Condemnation
¶ 107 As we have already noted, at the May 2015 hearing on IEPC’s complaints for
condemnation of permanent and temporary easements for common carrier pipeline, the sole
issue before the jury was the just compensation IEPC would have to pay landowners for its
interests in the Debra Trust’s and Kuerths’ properties. Accordingly, we confine our analysis to
two distinct issues, which we find dispositive—that is, (1) the trial court’s determination to bar
McCann’s expert testimony at that hearing and (2) the court’s directed verdict in IEPC’s favor.
We address each issue in turn.
¶ 108 a. The Trial Court’s Determination To Bar
McCann’s Expert Testimony
¶ 109 Landowners argue that the trial court abused its discretion by barring McCann’s appraisal
testimony. We disagree.
¶ 110 Prior to addressing the controversy at issue, we note that in their respective briefs to this
court, both parties agree that in Trunkline, 21 Ill. 2d at 101, 171 N.E.2d at 49, the supreme
court stated, as follows: “It has long been settled that temporary consequential interference
with the use of property occasioned by the construction of a public improvement is not a proper
element of damage.” The supreme court also stated that “where a witness has considered
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improper elements of damage, his testimony will be deemed incompetent *** even though in
part based upon proper elements.” Id. at 100, 171 N.E.2d at 48-49.
¶ 111 At the May 2015 jury trial on IEPC’s condemnation suit, the following exchange occurred
during McCann’s voir dire, which occurred outside the jury’s presence:
“[LANDOWNERS’ COUNSEL]: *** [A]fter these proceedings started, did you
subsequently come to learn that they had entered into a stipulation regarding the
temporary easement and clarified that they would allow individuals access across the
temporary easement that were landowners?
[McCANN]: Yes.
[LANDOWNERS’ COUNSEL]: *** [D]id that satisfy some of your concerns? Or
tell me what your concerns were about that and how that related to the value of the
temporary easement.
[McCANN]: Well, certainly. The temporary easement, the initial terms were
basically that the easement holder, meaning [IEPC] could keep anybody including the
property owner off that temporary easement for the whole duration of it which could
make some real issues for using the property beyond that easement.
And when I look at the easement valuations or valuations subject to easement
impacts, I interpret it as the full effect of the language of that easement. I don’t make
assumptions that they won’t do what they are saying they have a right to do. I think
that’s the appropriate way to do it. That’s the way I’ve learned it.
And, but then with that subsequent disclosure that no, we’ll allow access across the
temporary easement, we won’t, you know, completely interfere with their ability to get
to the other side of the easement, well, that did soften the effect of the temporary
easement.”
¶ 112 After argument on whether to exclude McCann’s testimony, the trial court stated, as
follows:
“I hope the record picks it up clearly here that it’s not even a close case in [the
court’s] mind ***.
So [McCann] told [the court] the foundation of his analysis here for both the
easement and the remainder is the issue of the temporary construction easement. That
he specifically said also that a buyer that comes in that sees this situation *** it’s going
to affect the price.
So under any set of circumstances based on what [McCann] said, and [landowner’s
counsel is] free to disagree with [the court] the record will speak for itself, but
[McCann’s] out. There is no question in [the court’s] mind. [The court] will get
reversed *** in a heartbeat if [McCann is] allowed to give an opinion based on
Truckline.”
¶ 113 Landowners contend that (1) “the [trial] court’s ruling was based on a misunderstanding of
what [McCann] stated [during] voir dire” and (2) the confusion created by IEPC’s
“increasingly hostile *** and misleading manner.” We disagree.
¶ 114 Based upon the aforementioned quoted text in response to landowners’ voir dire questions
coupled with McCann’s responses, we conclude that the trial court did not abuse its discretion
by barring McCann’s expert valuation testimony because that testimony contained improper
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elements of damage.
¶ 115 b. The Trial Court’s Directed Verdict
¶ 116 Landowners argue that the trial court’s directed verdict in IEPC’s favor was not supported
by sufficient evidence. Specifically, landowners contend that IEPC failed to present competent
evidence as to the fair-market value of the condemned properties because Brorsen’s valuation
of the permanent easements on their respective properties was based on “conjecture without
basis.” We disagree.
¶ 117 Section 10-5-5 of the Act provides that “[p]rivate property shall not be taken or damaged
for public use without just compensation.” 735 ILCS 30/10-5-5 (West 2014). The 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). Whether the facts and data relied upon by a given appraiser are
reasonably relied upon by experts in the field of real estate appraisals is a determination left to
the sound discretion of the trial court. Southwestern Illinois Development Authority v.
Al-Muhajirum, 348 Ill. App. 3d 398, 401, 809 N.E.2d 730, 732 (2004). The trial court must not
abdicate its independent responsibilities to determine whether the underlying bases for a
submitted appraisal satisfy the minimum standards of reliability as a condition of admissibility.
Id. at 401, 809 N.E.2d at 732-33. We review de novo the grant or denial of a motion for a
directed verdict. Jones v. DHR Cambridge Homes, Inc., 381 Ill. App. 3d 18, 28, 885 N.E.2d
330, 339-40 (2008).
¶ 118 At the May 2015 jury trial, landowners cross-examined Brorsen concerning his valuations
of the damages caused to the respective properties by the existence of the permanent easements
IEPC sought. Brorsen explained the methodology he employed, as follows:
“As I testified yesterday, the value of the permanent easement as part of the whole after
the taking is not based on market sales evidence because there is none. It’s based on
market evidence that we’ve extracted from landowners and brokers and farmers,
everyone says there’s a value loss of some type but they don’t know exactly what it is.”
¶ 119 Brorsen explained further that in his discussions with other landowners, brokers, and
farmers—which he documented in his work file—some opined that the damage to the property
caused by the condemned land was 100% of the land value prior to the condemnation, while
other opined that it was 0%. Brorsen did not rely on those extreme valuations, explaining, for
example, that although the Kuerths were losing some of the rights they enjoyed in the 1.791
acres of condemned land before IEPC’s condemnation (i.e., prohibited from excavating or
building a structure over the 1.791 acres), landowners did not relinquish all their rights (i.e.,
could still traverse, farm, or sell the 1.791 acres).
¶ 120 Brorsen noted that under such a scenario, “[i]t has to be logical that there is a value for that
permanent easement,” given the small portion of rights landowners cede to IEPC. After
assessing numerous personal opinions, as well as other market factors “to determine what the
market recognizes as the value of a permanent easement impressed with a pipeline easement,”
Brorsen determined that a 25% discount rate was appropriate. Brorsen then applied that
discount rate to the Kuerths’ property in the following manner: 1.791 acres (size of permanent
easement) x $11,800 (per-acre valuation pre-taking) x .25 (discount rate) = $5283.45 (rounded
to $5300). Brorsen also applied this methodology to the Debra Trust property.
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¶ 121 As we have already noted, landowners’ claims regarding the use of comparable sales of
other easements to determine the value of the damages to the property caused by the permanent
easements at issue in this case have no merit because no such marketplace exists. Through his
testimony and accompanying report, Brorsen detailed the extensive nature of his appraisal,
which included the methodology he employed to determine the damages to the respective
properties by the existence of the permanent easements.
¶ 122 When landowners rested their case in chief, the only competent evidence presented to the
jury on the sole issue before it was Brorsen’s expert opinion regarding the compensation
landowners were entitled to receive for IEPC’s interest in their respective properties.
Landowners failed to present any evidence to refute Brorsen’s opinion. We conclude that
given the absence of testimony the jury could have weighed against Brorsen’s opinion, the trial
court properly granted IEPC’s motion for a directed verdict. Accordingly, we reject
landowners’ claim to the contrary.
¶ 123 B. Landowners’ Traverse Motion
¶ 124 1. The Statute at Issue
¶ 125 In January 2007, the General Assembly enacted the Act. Pub. Act 94-1055 (eff. Jan. 1,
2007) (adding 735 ILCS 30/1-1-1 to 99-5-5). In so doing, the legislature repealed article VII of
the Code of Civil Procedure, which had governed eminent domain proceedings prior to
January 2007. See Pub. Act 94-1055, § 95-1-5 (eff. Jan. 1, 2007) (repealing 735 ILCS 5/7-101
to 7-129). The legislature passed the Act “in an attempt to limit the use of condemnation power
to assist private development.” Richard F. Friedman, Initial Procedures and Pleadings of the
State and Other Condemning Bodies, in Illinois Eminent Domain Practice § 2.1 (Ill. Inst. for
Cont. Legal Educ. 2013). As a result, a major revision from article VII was the codification of
the standards of proof for acquisitions when the ultimate user is not a governmental body but,
instead, a private entity. Id. The revisions included a new provision, section 5-5-5(c) of the
Act, which states, 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 authorized 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.” 735
ILCS 30/5-5-5(c) (West 2014).
¶ 126 2. The Operation of Presumptions and Rebuttable Presumptions
¶ 127 Because section 5-5-5(c) of the Act refers to a “rebuttable presumption,” we provide the
following discussion of that concept.
¶ 128 a. Presumptions in Civil Proceedings
¶ 129 Illinois Rule of Evidence 301 (eff. Jan. 1, 2011), entitled “Presumptions in General in Civil
Actions and Proceedings,” provides, as follows:
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“In all civil actions and proceedings not otherwise provided for by rule, statute[,] or
court decision, a presumption imposes on the party against whom it is directed the
burden of going forward with evidence to rebut or meet the presumption, but does not
shift to such party the burden of proof in the sense of the risk of nonpersuasion, which
remains throughout the trial upon the party on whom it was originally cast.”
¶ 130 b. Rebuttable Presumptions in Civil Proceedings
¶ 131 In Franciscan Sisters Health Care Corp. v. Dean, 95 Ill. 2d 452, 448 N.E.2d 872 (1983),
the supreme court provided the following guidance on rebuttable presumptions:
“ ‘With regard to the procedural effect of presumptions, most jurisdictions in this
country follow the rule that a rebuttable presumption may create a prima facie case as
to the particular issue in question and thus has the practical effect of requiring the party
against whom it operates to come forward with evidence to meet the presumption.
However, once evidence opposing the presumption comes into the case, the
presumption ceases to operate, and the issue is determined on the basis of the evidence
adduced at trial as if no presumption had ever existed. [Citation.] The burden of proof
thus does not shift but remains with the party who initially had the benefit of the
presumption. Consistent with this view, Dean Wigmore states in his treatise on
evidence that “the peculiar effect of a presumption ‘of law’ (that is, the real
presumption) is merely to invoke a rule of law compelling the jury to reach the
conclusion in the absence of evidence to the contrary from the opponent. If the
opponent does offer evidence to the contrary (sufficient to satisfy the judge’s
requirement of some evidence), the presumption disappears as a rule of law, and the
case is in the jury’s hands free from any rule ***.” (9 Wigmore, Evidence sec. 2491, at
289 (3d ed. 1940).)’ ” (Emphases in original.) Id. at 460-61, 448 N.E.2d at 875-76(quoting Diederich v. Walters, 65 Ill. 2d 95, 100-01, 357 N.E.2d 1128, 1130-31
(1976)).
¶ 132 The doctrine that Franciscan Sisters and Diederich describe is sometimes referred to as
Thayer’s bursting bubble theory. Id. at 466, 448 N.E.2d at 878; see also In re Estate of Walsh,
2012 IL App (2d) 110938, ¶ 59, 972 N.E.2d 248 (applying the bursting bubble theory). Under
this theory, once evidence had been presented to rebut the operative presumption, that
presumption bursts, and the trier of fact then considers the evidence presented in the case as if
the presumption had never existed. Franciscan Sisters, 95 Ill. 2d at 466, 448 N.E.2d at 878;
Walsh, 2012 IL App (2d) 110938, ¶ 59, 972 N.E.2d 248. The obvious question then is, “How
much evidence is required to rebut the presumption?”
¶ 133 The amount of evidence required from an adversary to rebut the presumption is not
determined by any fixed rule. Franciscan Sisters, 95 Ill. 2d at 463, 448 N.E.2d at 877. The
party contesting the presumption must present “sufficient evidence to support a finding of the
nonexistence of the presumed fact.” R.J. Management Co. v. SRLB Development Corp., 346
Ill. App. 3d 957, 965, 806 N.E.2d 1074, 1081 (2004). Occasionally, however, courts have
imposed a greater burden of production upon a party challenging a presumption than merely
presenting sufficient evidence to support a finding as to the nonexistence of the presumed fact.
Michael H. Graham, Graham’s Handbook of Illinois Evidence § 301.5, at 118 (10th ed. 2010).
Such a presumption is sometimes referred to as a “ ‘strong’ ” presumption. Id.
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¶ 134 Due to compelling policy considerations, a party challenging a strong presumption must
present clear and convincing evidence to rebut the presumption. R.J. Management Co., 346 Ill.
App. 3d at 965, 806 N.E.2d at 1081. The clear and convincing standard requires proof greater
than a preponderance but not quite approaching the criminal standard of proof beyond a
reasonable doubt. See Altenheim German Home v. Bank of America, N.A., 376 Ill. App. 3d 26,
37, 875 N.E.2d 1172, 1182 (2007) (applying the clear and convincing standard to the
presumption that an adopted child is a descendent of the adopting parent for inheritance
purposes). Although this strong presumption commonly arises in fiduciary relationships, it has
also been applied in other contexts.
¶ 135 For example, in Layton v. Layton, 5 Ill. 2d 506, 508, 126 N.E.2d 225, 226 (1955), the sole
question before the supreme court concerned whether the valid delivery of a land deed had
occurred. Testimony presented on that question showed that a husband and wife owned certain
real estate as joint tenants. Id. at 507, 126 N.E.2d at 225. The husband later executed a
quitclaim deed in which he conveyed his interest in the property to his wife. Id. When the
parties later separated, a dispute arose as to whether the husband delivered the quitclaim deed
to his wife. Id. at 507, 126 N.E.2d at 225-26. The husband claimed that although he had spoken
with his estranged wife about the deed before their separation, (1) the wife told him that she
had not seen the deed, (2) he surmised the deed was no longer valid, and (3) he thought the
deed was probably destroyed. Id. at 508-09, 126 N.E.2d at 226. The wife testified that after her
husband executed the deed, he presented it to her, which was a complete surprise. Id. at 509,
126 N.E.2d at 226. Thereafter, the deed remained in a desk drawer located in the living room of
the home they shared. Id. After their separation, the wife recorded the deed as her attorney
instructed. Id.¶ 136 Prior to answering the question at issue in that case, the supreme court noted that “the
possession of a deed by the grantee raises a presumption that the deed was delivered, and only
clear and convincing evidence can overcome that presumption.” Id. at 510, 126 N.E.2d at 227.
The supreme court then determined that the husband’s testimony was neither clear nor
convincing because (1) he had contradicted himself during cross-examination and (2) his
testimony at trial was inconsistent with previous evidentiary stipulations and his earlier
deposition testimony. Id. at 511, 126 N.E.2d at 227. The supreme court concluded that “[w]hen
the [husband’s] testimony is weighed against the evidence adduced on the [wife’s] behalf, it is
clear that he failed to sustain his burden of proving nondelivery of the deed.” Id. at 511-12, 126
N.E.2d at 227.
¶ 137 In Mitchell v. Tatum, 104 Ill. App. 3d 986, 988, 433 N.E.2d 978, 980 (1982), the clear and
convincing standard was applied to determine whether the sheriff’s return of service was prima
facie proof that service of process was successfully executed. In this regard, the appellate court
stated that “[t]his court is required to indulge every presumption in favor of the sheriff’s
return.” See also In re Application of the County Treasurer & ex officio County Collector, 301
Ill. App. 3d 672, 677, 704 N.E.2d 910, 913 (1998) (to overcome the presumption that
redemption of property after tax sale has been made on behalf of proper party, the burden is
substantial and not minimal); La Salle National Bank v. County of Du Page, 54 Ill. App. 3d
387, 393, 369 N.E.2d 505, 510 (1977) (presumption in favor of validity of zoning ordinance
must be rebutted by clear and convincing evidence).
¶ 138 The same compelling policy considerations that justify the strong presumptions in the
above cited cases justify the strong presumption in this case. Indeed, on direct appeal from a
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decision of the Commission, this court is supposed to be deferential to the expertise possessed
by that agency when reviewing its decisions. In People ex rel. Madigan v. Illinois Commerce
Comm’n, 2015 IL 116005, ¶¶ 22-23, 25 N.E.3d 587, the Supreme Court of Illinois considered
an appeal brought by the Attorney General and certain citizens groups from a decision of the
Commission regarding changes made for natural gas charges to the utility customers and, in
pertinent part, wrote the following:
“Section 10-201(d) of the [Public Utilities] Act states that any decision by the
Commission is ‘prima facie reasonable’ (220 ILCS 5/10-201(d) (West 2010)), so a
party challenging such a decision bears the burden of proof to show it is unreasonable.
Thus, in an appeal like this one, our authority is deferential by statute, but it is also by
nature. Simply put, we are judges, not utility regulators. Though we are free to disagree
with the Commission on what the [Public Utilities] Act means [citation], we remain
hesitant to disregard how the Commission applies it [citation]. The Commission’s
interpretation of the [Public Utilities] Act is accorded deference because
administrative agencies enjoy wide latitude in effectuating their statutory functions.
[Citations.]
Deference to the Commission is ‘especially appropriate in the area of fixing rates.’
[Citations.] As we recognized in [citation] ‘the determination of rates is not a matter of
formulas but one of sound business judgment,’ which the General Assembly has
entrusted to the Commission, and not to the courts. [Citations.] A rate is more than a
number; it is also a design. The Commission’s decision in a rate case does not involve
simply what utilities may charge their customers, but how they do so. [Citation.] And
that decision depends largely upon the Commission’s experience and expertise in its
field. [Citation.] (‘Because of its complexity and need to apply informed judgment, rate
design is uniquely a matter for the Commission’s discretion.’).” (Emphasis added.)
¶ 139 The aforementioned quoted passage is consistent with a case the supreme court considered
over 20 years ago, which affirmed this court’s judgment. In United Cities Gas Co. v. Illinois
Commerce Comm’n, 163 Ill. 2d 1, 11-12, 643 N.E.2d 719, 725 (1994), the supreme court wrote
the following:
“The Commission is the fact-finding body in the ratemaking process. On appeal from
an order of the Commission, its findings of fact are to be considered prima facie true;
its orders are considered prima facie reasonable; and the burden of proof on all issues
raised in an appeal is on the appellant. [Citations.]
An order of the Commission will be reversed only if it is outside the jurisdiction of
the Commission or is not supported by substantial evidence, or if the proceedings or
manner in which the order was arrived at violated the State or Federal Constitution or
relevant laws, to the prejudice of the appellant. [Citations.] It is well settled that a
decision of the Commission is entitled to great deference because it is the ‘judgment of
a tribunal appointed by law and informed by experience’ [citation].” (Emphasis
added.)
¶ 140 Of course, the appeal now before this court does not involve a review of Commission rate
setting. Nonetheless, the foregoing authority supports the proposition that the Commission,
having been vested with authority by the legislature to resolve the technical issues that come
before it, and presumably possessing the expertise to do so, should similarly be accorded
deference with regard to the issues concerning the construction of a pipeline in this state.
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Deeming the Commission’s findings worthy of a strong presumption is merely an
acknowledgement of that expertise and would serve as a caution to trial courts to not easily
disregard the findings of the Commission. Strong public policy favors that the landowners
should be required to present clear and convincing evidence before the applicable rebuttable
presumptions burst.
¶ 141 3. The Standard of Review
¶ 142 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 the trial court’s finding that a condemnor acted in
good faith.” Id. at 931-32, 877 N.E.2d at 21-22.
¶ 143 4. Landowners’ Claims of Error
¶ 144 Landowners argue that the trial court erred by denying their traverse motions because (1)
the court denied discovery on issues raised concerning the propriety of the Commission’s
certification process for the SAX project; (2) IEPC’s certificate in good standing had expired;
(3) the SAX project was not primarily for the benefit, use, or enjoyment of the public; and (4)
IEPC failed to make good-faith offers prior to filing its condemnation suit. For the reasons that
follow, we vacate the court’s denial of landowners’ traverse motion.
¶ 145 As we have previously noted, a landowner may challenge a condemnation action by filing
a traverse motion. City of Chicago v. Midland Smelting Co., 385 Ill. App. 3d 945, 965, 896
N.E.2d 364, 383 (2008). By definition, a traverse is a “formal denial of a factual allegation
made in the opposing party’s pleading.” Black’s Law Dictionary 1506 (7th ed. 1999). When
such a motion is filed, the authority condemning the property bears the burden of establishing a
prima facie case as to any disputed allegations. Midland Smelting Co., 385 Ill. App. 3d at 965,
896 N.E.2d at 383. “However, the introduction into evidence of a valid ordinance reciting the
necessity for taking private property for a public purpose establishes a prima facie case
authorizing the acquisition of the property in question, making it the burden of the party
challenging the condemnation to come forward with evidence that the condemnor abused its
discretion with respect to its decision concerning the necessity of the taking.” Id.¶ 146 Application of the plain language of section 5-5-5(c) of the Act to the facts of this case
shows that in July 2014—when IEPC filed its complaint for condemnation of landowners’
respective properties—the rebuttable presumptions of that section applied regarding IEPC’s
claim that its interest in those specific properties was (1) primarily for the benefit, use, or
enjoyment of the public; and (2) necessary for public purpose. Although section 5-5-5(c) of the
Act does not mention good-faith negotiations, “the question of whether a condemnor has
negotiated in good faith bears directly on whether the condemnor was exercising its right of
eminent domain improperly.” Department of Transportation ex rel. People v. 151 Interstate
Road Corp., 209 Ill. 2d 471, 480-81, 810 N.E.2d 1, 7 (2004). Indeed, a condition precedent to
condemnation proceedings is the requirement that the condemnor engaged in good-faith
negotiations with the landowner (Zappani, 376 Ill. App. 3d at 932, 877 N.E.2d at 22)—the
existence of which establishes a prima facie case that a landowner must rebut with relevant
evidence (Midland Smelting Co., 385 Ill. App. 3d at 965, 896 N.E.2d at 383).
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¶ 147 In this case, IEPC established a prima facie case that it had engaged in good-faith
negotiations with landowners based upon the Commission’s April 2014 ruling, which granted
IEPC eminent-domain authority to acquire the property interests at issue. The Commission’s
grant of eminent-domain authority to IEPC was based on testimony provided by three
witnesses at a December 2013 hearing regarding (1) the appraisal process IEPC used to
calculate the offers and (2) IEPC’s attempts to, thereafter, negotiate with landowners. See
Intervenors II, 2015 IL App (4th) 140592-U, ¶¶ 14-29 (summarizing the testimony IEPC
presented before the Commission in support of its renewed request for eminent-domain
authority). After considering that evidence, the Commission applied its experience and
expertise in such matters and granted IEPC eminent-domain authority to acquire the remaining
easements to complete the SAX project. The Commission’s conclusion could only come after
the Commission had first determined that IEPC had engaged in good-faith bargaining with
landowners. Given the (1) procedure the Commission employed before it granted
eminent-domain authority and (2) Commission’s applied expertise in such matters, we deem
that the Commission’s good-faith determination—although not identified specifically as a
rebuttable presumption under section 5-5-5(c) of the Act—should be afforded substantial
deference by the trial court.
¶ 148 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 enjoyment 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 and refute,
respectively, those three issues.
¶ 149 Although the General Assembly enacted section 5-5-5(c) of the Act to protect landowners’
property interests from condemnation proceedings in favor of private development, that
section also serves to reinforce what this court has long held. In Illinois Power Co. v. Lynn, 50
Ill. App. 3d 77, 78, 365 N.E.2d 264, 265 (1977), a utility brought an action to acquire certain
tracts of land by eminent domain pursuant to authority granted to it by the Commission in a
certificate of convenience and necessity and an enabling order. The landowners filed a motion
to dismiss and traverse, which the trial court denied. Id. Specifically, the court found that “the
question of public need for this tract had been resolved in the hearing before the ***
Commission, in which defendants actively participated as parties.” Id.¶ 150 On appeal, this court identified the question before it as whether the “Commission’s
finding that the needs and plans of the utility constitute a ‘public use,’ and that certain
properties need be acquired to develop those plans, preempt the courts from inquiring into
these same subject matters, where the property owners fully participated as a ‘party’ before the
Commission.” Id. In answering that question, this court determined that because trial courts
were not preempted from inquiring into the same subject matter as the Commission during
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certification proceedings, the court erred by dismissing the landowners’ traverse motion on
that ground. Id. at 82, 365 N.E.2d at 268. In so concluding, we stated, as follows:
“In essence then, the property owners there, as here, were not ‘parties to the
proceedings’ in the sense of parties to a litigation. The hearing was on the
reasonableness of the utility’s plans and could not confer property rights. Appeal of the
order of the *** Commission to the courts as provided by statute would only have been
a review of the proposed plan for development of the project and the extent of the
property to be sought. The appearance of the owners before the *** Commission to
give input into the plans, or object thereto, could not bar them from later exercising
their rights as owners of property being taken for a public use.” (Emphasis in original.)
Id. at 81-82, 365 N.E.2d at 267.
See also Adams County Property Owners & Tenant Farmers v. Illinois Commerce Comm’n,
2015 IL App (4th) 130907, ¶¶ 47-51, 36 N.E.3d 1019 (citing Lynn approvingly).
¶ 151 The Commission’s July 2009 grant of a certificate in good standing and April 2014 grant of
eminent-domain authority and the rebuttable presumptions those decisions generated in
IEPC’s favor were merely the first steps in this process. The trial court’s dismissal of
landowners’ traverse motions effectively deprived landowners 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. Accordingly, we vacate the court’s denial of landowners’
respective traverse motions and remand for limited proceedings, as we will further explain. We
are also retaining jurisdiction of this appeal.
¶ 152 C. The Procedural Posture of This Court’s Remand
¶ 153 Prior to providing the trial court specific directions, we first discuss the procedural posture
of this court’s remand.
¶ 154 Over 23 years ago, this court considered the propriety of a trial court’s determination,
which affirmed a decision by a regional board of school trustees to dissolve a school district
and transfer the responsibility of educating the students affected to a neighboring school
district. Board of Education of Wapella Community Unit School District No. 5 v. Regional
Board of School Trustees, 245 Ill. App. 3d 776, 778, 614 N.E.2d 1383, 1385 (1993) (Wapella
I). Objectors to the dissolution appealed, challenging the regional board’s (1) determination
that the petition for dissolution was legally sufficient with regard to the number of qualifying
signatures from registered voters and (2) denial of their request to be heard on their objections
during a November 2009 hearing before the regional board. Id. at 779, 614 N.E.2d at 1386.
¶ 155 Following oral arguments, this court concluded, as follows:
“We have heard this appeal on an expedited basis because of the need of the school
districts involved and their personnel to make immediate plans. We ordered an
accelerated briefing schedule and we now shape the procedural aspects of our decision
with the need for a speedy resolution of this dispute in mind. We conclude that the
request to withdraw signatures was ineffective and that the Regional Board’s
determination to have the entire territory of Wapella annexed to Clinton was not
contrary to the manifest weight of the evidence. However, although section 7-2a(b) of
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the [School] Code [(105 ILCS 5/7-2a(b) (West 1992))] makes no express provision for
a hearing upon objections to the petition, we hold that the Regional Board should have
permitted the objectors to be heard. Accordingly, we will remand to the Regional
Board to conduct such a hearing. Our ultimate decision will turn on that issue.” Id.¶ 156 In remanding to the regional board for further proceedings, this court provided the
following direction:
“We remand the cause to the Regional Board with directions to hold a hearing upon
the objections to the petition filed in this cause within 14 days from the issuance of this
opinion. The Regional Board is directed to certify its ruling on those objections to this
court together with a record of those proceedings within seven days following the
hearing. Upon receipt of the foregoing, we will make a decision in this case consistent
with this opinion but dependent upon the hearing on the objections and the ruling
thereon. No further briefing or arguments will occur unless we so request.” Id. at 785,
614 N.E.2d at 1390.
¶ 157 After the regional board complied with this court’s directions on remand by holding a
hearing on objectors’ challenges, the regional board certified its decision to this court, which
reaffirmed its dissolution determination. Board of Education of Wapella Community Unit
School District No. 5 v. Regional Board of School Trustees, 247 Ill. App. 3d 555, 557, 617
N.E.2d 442, 444 (1993) (Wapella II). Objectors argued to this court—as they did to the
regional board—that the regional board could not act without a mandate from this court. In
rejecting objectors’ argument, we noted the following concerning this court’s opinion in
Wapella I:
“[Wapella I] neither affirmed, reversed, nor modified the order on appeal. However,
the opinion indicated approval of all of the actions of the Regional Board except for its
ruling prohibiting the request of the objectors to be heard on the question of the
sufficiency of the petition to dissolve. Accordingly, we remanded to the Regional
Board with directions to hold an evidentiary hearing on those objections and to certify
its ruling to us on an expedited basis.
***
The objectors’ theory in regard to the Regional Board’s jurisdiction is based upon
the premise that it could not act without a mandate. However, as we have indicated, our
previous opinion in this case neither affirmed, reversed, nor modified any part of the
order on appeal. We remanded for an evidentiary hearing on a single point, but we did
not abdicate any part of our general jurisdiction of the matter. [Citation.] Thus we did
not enter a judgment and no mandate was appropriate. No new notice of appeal was
necessary for this court to obtain jurisdiction to rule on the case because this court
never lost jurisdiction of the appeal. We hold that our opinion was sufficient to vest the
Regional Board with authority to hold the July 6, 1993, hearing and that board properly
proceeded in the face of the objectors’ assertion of lack of jurisdiction.” Id. at 557-58,
617 N.E.2d at 443-44.
¶ 158 In the instant case—as in Wapella I—we have vacated the trial court’s denial of
landowners’ traverse motions and are remanding for the expedited and limited purpose of
permitting landowners to present relevant evidence to (1) rebut the presumptions of public use
and public necessity IEPC possesses and (2) refute the Commission’s finding that IEPC acted
in good faith when negotiating with landowners. Although we have also expressed our
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approval of the trial court’s evidentiary and valuation determinations in this case, we have not
yet affirmed, reversed, or modified the trial court’s judgment. Our ultimate determination in
this case will occur only after the trial court conducts a proper traverse hearing in accordance
with this court’s direction, certifies the record to this court, and the parties have an
opportunity to supplement their briefs to this court with regard to the trial court’s expedited
traverse ruling. Accordingly, as this court held in Wapella II, because no judgment has been
rendered by this court (1) no mandate need issue and (2) this court retains general jurisdiction.
More important, upon the filing of this opinion, the trial court is vested with the authority to
conduct an expedited hearing for this limited purpose in accordance with the following
directions we now provide.
¶ 159 D. Directions on Remand
¶ 160 As earlier mentioned, the parties’ dispute began in earnest when IEPC filed its August
2007 application for a certificate in good standing to construct the SAX project. During the
nine years that followed, the parties have engaged in extensive litigation, which included
landowners’ separate challenges to the Commission’s (1) certification that IEPC was a
common carrier by pipeline and thus, authorized to construct the SAX project; (2) grant of
eminent-domain authority in IEPC’s favor to acquire easements from recalcitrant landowners
to complete construction of the SAX project; and (3) approval for IEPC to amend the SAX
project. As this list suggests, the parties have already expended a great deal of time and judicial
resources litigating issues involving the SAX project.
¶ 161 At oral arguments in this case, IEPC accused landowners of engaging in a pattern of
obstructionist litigation by continually attacking the Commission’s certification and
eminent-domain determinations, which this court had since affirmed on appeal. Although
IEPC’s claims regarding landowners’ blunderbuss approach have some justification, we note
that at the October 2014 traverse hearing, IEPC complicated the trial court’s consideration by
not conceding the obvious—that is, as to landowners’ respective properties, Lynn and section
5-5-5(c) of the Act clearly permitted landowners to present relevant evidence to rebut the
public-use and public-necessity presumptions IEPC enjoyed by virtue of the Commission’s
certification and eminent-domain determinations. In addition, landowners were also entitled to
challenge the Commission’s determination that IEPC had engaged in good-faith negotiations
when the Commission granted IEPC eminent-domain authority. We sympathize with the trial
court as it attempted to wrestle with these complicated issues.
¶ 162 At the October 2014 hearing on landowners’ traverse motions, IEPC argued that the trial
court should not consider landowners’ claims because they had already been resolved by the
Commission and affirmed on appeal by this court. For the reasons this court has already
mentioned, IEPC’s position was not correct. Nonetheless, the question that remains is, what
sort of hearing would be appropriate under these circumstances? Given the length of time and
amount of resources already expended in litigating the construction of the SAX project, we
provide the following directions for remand in the interest of judicial economy and finality.
¶ 163 1. Limited Scope of the Traverse Hearing
¶ 164 As previously noted, in July 2014—when 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
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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. We note, however, that in their July 2014 traverse motions,
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.
¶ 165 Our determination as to the proper scope of a traverse hearing is not new or novel. In
Department of Transportation v. Keller, 127 Ill. App. 3d 976, 469 N.E.2d 262 (1984),
respondent landowners argued that the trial court erred by restricting testimony as to the issue
of necessity at a traverse hearing. In affirming the court’s judgment on appeal, the appellate
court stated, as follows:
“[T]he issue of whether the acquisitions are ‘necessary,’ [is] subject to two meanings,
one of which forms the basis of an inquiry which is properly before the court, and one
of which [does] not. This is another way of stating that the term ‘necessary,’ for
purposes of condemnation proceedings, is subject to a definition other than that to
which the term is subject in common discourse. This distinction was recognized
implicitly by the Supreme Court of Illinois in Department of Public Works & Buildings
v. Lewis[, 411 Ill. 242, 245-46, 103 N.E.2d 595, 597-98 (1952)]:
‘The word “necessary” in statutes such as the [Act] “should be construed to
mean ‘expedient,’ ‘reasonably convenient,’ or ‘useful to the public,’ and cannot be
limited to an absolute physical necessity.” [Citations.] Conversely, the word
“necessary” does not mean “indispensable” *** or “an absolute necessity.” The
general rule is that, where the right of eminent domain is granted, the necessity for
its exercise, within constitutional restrictions, is not a judicial question, and its
exercise is not a proper subject for judicial interference or control unless to prevent
a clear abuse of such power. [Citations.] This Court *** in Smith v. Claussen Park
and Levee Drainage District, 229 Ill. 155, 163[, 82 N.E. 278, 281 (1907)], stated,
“If the court finds that the use for which the property is to be taken is a public one,
then the court will not inquire into the extent to which the property is necessary for
such use unless it appears that the quantity of property taken is grossly in excess of
the amount necessary for the use.” ’
The question of whether a public taking is ‘necessary,’ then, may be an inquiry
directed to one of two fields of reference. It may, first, constitute an attempt to
determine the veracity of that proposition of which the petitioner is obliged to make
a prima facie showing in the first instance—i.e., that the purpose for which the land is
sought is one of public convenience, and the acquisition, reasonable in scope, is an
expedient means of accomplishing the purpose. It may, second, constitute an attempt to
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determine whether, given the legitimacy of the project, a given acquisition is
‘indispensable’—i.e., the only means of accomplishing a purpose, the public
convenience and reasonable scope of which are not at issue. According to the rule set
forth in Lewis, the first question would fall within the scope of judicial inquiry and the
second question would not.” Id. at 980-81, 469 N.E.2d at 266 (quoting Department of
Public Works & Buildings v. Lewis, 411 Ill. 242, 245-46, 103 N.E.2d 595, 597-98
(1952)).
See also City of Chicago v. St. John’s United Church of Christ, 404 Ill. App. 3d 505, 516, 935
N.E.2d 1158, 1170 (2010) (“A court’s inquiry into the existence of necessity in an eminent
domain case is limited but crucial.” (Internal quotations marks omitted.)).
¶ 166 Based on the aforementioned discussion of the proper scope of a traverse hearing, the trial
court on remand should consider only two matters, which are landowners’ claims challenging
(1) the rebuttable presumptions of public use and public necessity and (2) the Commission’s
determination as to good-faith, as generally set forth in paragraphs 2 through 6 of landowners’
July 2014 traverse motion.
¶ 167 2. Discovery and Proceedings on Remand
¶ 168 In City of Chicago, a church challenged the condemnation of its cemetery for the city’s
O’Hare airport expansion plans. Id. at 507, 935 N.E.2d at 1163. On appeal, the appellate court
considered the church’s argument “that the trial court erred [by] denying their motion to
compel discovery of additional documents regarding the issues of necessity and discretion.”
Id. at 516, 935 N.E.2d at 1170. The court based its denial of the motion to compel on its review
of “ ‘all of the documents, plans, and public records previously produced by the City in this
matter,’ ” and it determined that the church had “ ‘everything *** on the issue of necessity the
City is required to produce.’ ” Id. at 517, 935 N.E.2d at 1170. The court also determined that
the specific discovery the church sought regarding (1) the possibility of alternate plans for the
property and (2) the city’s availability to pay for such an expansion were not proper areas of
judicial inquiry. Id. at 517, 935 N.E.2d at 1170-71. The appellate court affirmed the trial
court’s judgment, concluding that no abuse of discretion had occurred. Id. at 517, 935 N.E.2d
at 1171.
¶ 169 We note that in their brief to this court, landowners rely on dicta in Department of
Transportation ex rel. People v. 151 Interstate Road Corp., 333 Ill. App. 3d 821, 833, 777
N.E.2d 369, 379 (2002), rev’d on other grounds, 209 Ill. 2d 471, 810 N.E.2d 1 (2004), for the
proposition that a traverse hearing “resembles a trial more than it does a conventional motion
hearing.” From that premise, landowners contend that they require discovery to properly
prepare, which they claim includes deposing Brorsen, IEPC’s valuation expert. We disagree
with the notion that a traverse hearing resembles a trial. As this case and City of Chicago
clearly illustrate, a traverse hearing is akin to a hybrid proceeding in which specific
presumptions must be rebutted by landowners challenging the condemnation filing at issue.
¶ 170 Another difference exists between a typical trial and a traverse hearing. In preparation for a
typical trial, discovery “includes not only what is admissible at trial, but also that which leads
to admissible evidence.” Ramos v. Kewanee Hospital, 2013 IL App (3d) 120001, ¶ 76, 992
N.E.2d 103. 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 (as
this case clearly shows).
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¶ 171 Consistent with the limited nature of a traverse motion, as well as our limited remand, 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.
¶ 172 Consistent with City of Chicago, the trial court should determine whether any discovery
sought is appropriate and should deny any request to depose or submit interrogatories which
seeks information the court deems irrelevant or that already exists in the record or is already 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.
¶ 173 Given the extensive litigation that has already occurred in this matter and our explicit
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 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 employed to identify, contact, educate, and negotiate good-faith offers IEPC extended to
recalcitrant 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 that IEPC’s condemnation suit was filed after good-faith
efforts to negotiate had failed should be met with skepticism by the trial court. That court
should permit IEPC to challenge landowners’ additional requests for discovery by
demonstrating 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.
¶ 174 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 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. If the court determines that landowners have done so, then the court should
proceed to the second stage, which would contemplate a further hearing where the parties
could present evidence in support of their respective positions. We direct the trial court to
schedule and otherwise supervise discovery and conduct 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 in IEPC’s favor 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 refute the
good-faith determination, the court should then conduct a further hearing as to those claims on
the traverse motion. 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
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order to that effect. Regardless of the decision rendered, if a traverse hearing is conducted, the
court should again certify the record in this matter to this court so that we may then resolve this
appeal.
¶ 175 If the trial court finds that landowners have overcome the first-stage hurdle, then further
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 Act, which is titled, “Compensation;
jury,” states that “[w]hen compensation is so made by the condemning authority, any party,
upon application, may have a trial by jury to ascertain the just compensation to be paid.” 735
ILCS 30/10-5-5 (West 2014). No such provision entitling landowners to a jury determination
in a traverse hearing appears in section 5-5-5 of the Act, which governs traverse hearings and
appears immediately preceding section 10-5-5 of the Act. See Hamilton v. Conley, 356 Ill.
App. 3d 1048, 1056, 827 N.E.2d 949, 957 (2005) (tenet of statutory construction provides that
if one section of a statute contains a specific provision, 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 had disclosed no case in which the issues presented in a traverse
motion were resolved by a jury.
¶ 176 3. The Timeline on Remand
¶ 177 We note that in other contexts, the appellate court has remanded a cause to conduct an
expedited hearing on a limited issue and imposed specific directions regarding when the trial
court was expected to accomplish 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:
“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
appropriate 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 trial court’s
ruling on remand).
¶ 178 Unlike Bohanan, we prefer to forego mandating that the trial court conduct the traverse
hearing within a specific time frame. Instead, we leave these timing issues to the trial court’s
discretion. However, given this court’s direction that the trial court should conduct an
expedited hearing limited to landowners’ traverse motion, we expect that the trial court will do
so at the earliest possible opportunity.
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¶ 179 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
directions. In so ordering, this court retains jurisdiction to review the trial court’s ruling
following remand. 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.”).
¶ 180 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 supplemental
brief addressing solely any issues related 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.
¶ 181 III. CONCLUSION
¶ 182 For the foregoing reasons, we vacate the trial court’s traverse judgment and remand with
directions for further proceedings consistent with the views expressed herein.
¶ 183 Vacated; cause remanded with directions.
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