2017 IL App (3d) 150765
Opinion filed April 6, 2017
_____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
2017
ENBRIDGE ENERGY, LIMITED ) Appeal from the Circuit Court
PARTNERSHIP, ) of the 21st Judicial Circuit,
) Kankakee County, Illinois.
Plaintiff-Appellee, )
)
v. )
)
ROCHELLE M. FRY, DOUG RIECKE, )
JOHN RIECKE, NON-RECORD )
CLAIMANTS AND UNKNOWN ) Appeal No. 3-15-0765
OWNERS, ) Circuit Nos. 14-ED-4, 14-ED-8
)
Defendants-Appellants, )
)
and )
)
BERNADETTE A. LAMORE, ANYA M. )
BAUER, NON-RECORD CLAIMANTS )
AND UNKNOWN OWNERS, ) The Honorable
) Adrienne W. Albrecht and Ronald J. Gerts,
Defendants-Appellants. ) Judges, presiding.
____________________________________________________________________________
JUSTICE CARTER delivered the judgment of the court, with opinion.
Presiding Justice Holdridge and Justice Lytton concurred in the judgment and opinion.
_____________________________________________________________________________
OPINION
¶1 Plaintiff, Enbridge Energy, Limited Partnership (Enbridge), filed a condemnation suit to
obtain easement rights over certain farmland in Kankakee County so that it could build and
operate a new underground pipeline. The landowner defendants opposed the suit for
condemnation and filed a traverse and motion to dismiss (traverse motion), which the trial court
denied. A jury trial was later held on the condemnation complaint, and a directed verdict was
entered for Enbridge as to the amount of just compensation it was required to pay to the
landowners. The landowners appeal, raising numerous issues. We affirm the trial court’s
judgment.
¶2 FACTS
¶3 In April 2014, the Illinois Commerce Commission (ICC) granted Enbridge a certificate of
public convenience and necessity to build and operate a new underground liquid petroleum
pipeline from Pontiac, Illinois, to Griffith, Indiana. The new pipeline was to be known as “Line
78” and was to run across several properties in Livingston, Grundy, Kankakee, Will, and Cook
Counties. For the most part, the path of Line 78 was to run parallel to and in close proximity with
an existing Enbridge pipeline—Line 62. To obtain the necessary easement rights for Line 78,
Enbridge was granted eminent domain authority by the ICC.
¶4 Prior to filing the instant lawsuit, Enbridge negotiated settlements with many of the
landowners involved. As to those landowners with whom Enbridge could not reach an agreement
on just compensation, Enbridge filed condemnation complaints in the trial court. The complaints
(collectively referred to hereinafter as the complaint) were later consolidated. A copy of the ICC
order was attached to the complaint. Three of the landowners who did not settle with Enbridge
were named as defendants in the instant case. The dispute involved two pieces of farmland in
Kankakee County—the Fry property, owned by Rochelle Fry, and the Bauer-Lamore property,
owned by Anya Bauer and Bernadette Lamore. In the trial court, Fry, Bauer, and Lamore were
represented by the same attorney, who now represents all three of them in this appeal.
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¶5 In response to the condemnation complaint, Fry filed a traverse motion, alleging, among
other things, that Enbridge lacked proper eminent domain authority, that there was no public use
or necessity for the pipeline, and that Enbridge had failed to negotiate with the landowners in
good faith prior to filing the condemnation suit. A similar traverse motion was later filed on
behalf of Bauer and Lamore. Enbridge responded to Fry’s traverse motion and attached to its
response sworn testimony, affidavits, and business records. Those supporting documents
established that Enbridge had made numerous attempts to communicate with the landowners
about the easements and the pipeline project. Written offers for easement rights were made to
Fry in August 2013 and April 2014 and to Bauer and Lamore in April 2013 and October 2013.
The supporting documents also showed that in making its offers to the landowners, Enbridge had
been advised by a licensed real estate appraiser who had conducted a land market study in the
counties that were going to be impacted by the pipeline.
¶6 Unable to reach an agreement with the three landowners, Enbridge sent a final offer letter
to Fry in May 2014 and to Bauer and Lamore in June 2014. The final offer letter was also sent to
the landowners’ attorney. In that final offer letter, Enbridge offered to pay Fry approximately
$51,000 as just compensation and to pay Bauer and Lamore approximately $57,000. A receipt
detailing the basis for the offer was provided to all three landowners and their attorney. The final
offer was set to expire approximately 11 days from the date of the letter. In addition, Enbridge
stated in the letter that it would file an eminent domain action if the final offer was not accepted.
None of the three landowners or their attorney responded to those final offers.
¶7 A status hearing was held in September 2014, and Fry’s traverse motion was set for
hearing. When the landowners’ attorney told the trial court that he would need some time for
discovery, the trial judge responded that as a general matter, she did not postpone hearings on a
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motion to dismiss pending discovery but that if the issue arose, she “certainly [could] recess the
hearing and give—allow time for discovery.” In the 90 days between the filing of Fry’s traverse
motion and the date of the hearing on the motion, the landowners did not notice or subpoena any
depositions, attempt to compel the appearance of any witnesses or the production of any
documents at the hearing, or attempt to obtain any rulings from the trial court on any discovery
matter related to the traverse motion.
¶8 In October 2014, a hearing was held on Fry’s traverse motion. At the outset of the
hearing, the trial judge acknowledged that a motion had been faxed to the court by the
landowners’ attorney requesting additional time to conduct discovery. The landowners’ attorney
indicated in court that he had filed a memorandum on the matter. Despite the request for more
time, the trial court went forward with the hearing. The landowners’ attorney stated that he was
ready to call witnesses but did not seek to do so and did not disclose to the court who those
witnesses were or what their testimony would be. Ultimately, although the trial court did not
preclude either party from calling witnesses, no witnesses were presented by either side, and the
trial court made its ruling on Fry’s traverse motion based solely upon the pleadings and
supporting documents. After considering those documents, researching the matter, and listening
to the arguments of the attorneys, the trial court denied Fry’s traverse motion, finding that there
was nothing presented to challenge the rebuttable presumption of public use and necessity
created by the ICC’s order or any evidence presented to refute Enbridge’s showing that its offer
was made in good faith. Because Bauer and Lamore’s traverse motion was essentially identical
to that of Fry, the same ruling by the trial court was later applied to that motion as well.
¶9 With the traverse motion (collective reference to both motions) decided, the case
proceeded toward a jury trial on the condemnation complaint and the issue of just compensation.
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In November 2014, the trial court entered a case management order, which required that all
written discovery be completed by December 22, 2014, that all lay witness depositions be
completed by January 20, 2015, that all controlled expert witness disclosures be completed by
February 2, 2015, and that all controlled expert depositions be completed by February 20, 2015.
The landowners subsequently filed a counterclaim for the damage that the pipeline would
allegedly cause to the remainder property (the property outside of the easement area).
¶ 10 On January 7, 2015, the landowners’ attorney tendered on a flash drive the work file of
his proposed valuation expert, appraiser Michael McCann. The file contained approximately
7000 pages. Later that same month, landowner Bauer was deposed and testified that she did not
have knowledge of the fair market value of the subject property and that she was not qualified to
determine a diminution in value caused by the pipeline. Similarly, landowner Fry testified in her
deposition that she had no opinions, numbers, or anything related to the fair market value of her
property.
¶ 11 On February 2, 2015, within the timeframe set by the case management order, Enbridge
disclosed their expert valuation witnesses, Joseph Batis and Andrew Brorsen. Brorsen had
completed two written appraisal reports, one for each of the properties involved. Brorsen’s
reports contained his comparable-sales data and an explanation of his opinions as to valuation.
Although depositions were taken of Enbridge’s valuation experts, the landowners’ attorney did
not appear for those depositions.
¶ 12 The landowners disclosed their expert valuation witness, appraiser McCann, and tendered
a brief summary of his appraisal opinions. McCann did not prepare a written appraisal report,
and Enbridge did not take McCann’s deposition. After the discovery deadline had passed, the
landowners submitted supplemental opinions wherein they disclosed that the defendant
5
landowners had belatedly developed opinions of value based on discussions with their attorney
and research into environmental effects, stigma, and fear caused by pipelines.
¶ 13 In a letter dated February 2015, Enbridge’s attorneys warned the landowners’ attorney in
a letter that the controlled expert witness disclosures and the work file of McCann failed to
provide any explanation, analysis, or specificity regarding comparable sales. Attached to the
letter were previously-served discovery requests to the landowners asking for the comparable-
sales sheets. A second letter from Enbridge’s attorneys, dated March 2015, requested that the
complete work file of McCann be tendered in relation to the subject properties.
¶ 14 In April 2015, about 60 days after the discovery deadline had passed and without
obtaining leave of court, the landowners issued a notice of discovery deposition for their
controlled expert witness, appraiser McCann. The landowners’ attorney, in a later proceeding,
acknowledged that the purpose of the deposition was to disclose McCann’s new opinions and
pointed out that Enbridge had not deposed McCann. On Enbridge’s motion, the trial court
quashed the notice of deposition.
¶ 15 Prior to trial on the condemnation case, Enbridge filed a number of motions in limine. As
a result of one such motion, which the trial court granted, the landowners were barred from
cross-examining Enbridge’s witnesses regarding the specific rights that Enbridge sought to
acquire—primarily, that Enbridge sought to acquire the right to mortgage the easement. In
another ruling, the trial court barred landowners Fry, Bauer, and Lamore, each of whom had
inherited the properties, from testifying as to the value of the properties. The trial court’s ruling
in that regard was largely based upon the fact that both Fry and Bauer had testified in their prior
depositions that they had no idea as to the value of the property. The trial court also ruled that a
generic disclosure of “individual [d]efendants” that had been filed by the landowners in February
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2015 pursuant to Illinois Supreme Court Rule 213(f)(3) (eff. Jan. 1, 2007) did not allow the
landowners to call a witness to testify at trial that had not been specifically identified.
¶ 16 The jury trial on the condemnation case and the issue of just compensation began on
Monday, June 8, 2015. After the case was called for trial, the landowners’ attorney offered to
voir dire his own controlled expert witness, appraiser McCann, as a time-saving mechanism
because, according to the landowners’ attorney, if the trial court ruled that it was not going to
allow McCann to testify, the landowners would not have any expert opinion testimony to present
as to valuation and the case would result in a directed verdict. A voir dire of McCann, however,
was not conducted at that time. In addition, the landowners’ attorney told the trial court that if
neither the landowners nor McCann were allowed to testify, a directed verdict would result as
well.
¶ 17 In its case-in-chief, Enbridge introduced an evidentiary stipulation in which it agreed to
pay for damage to crops and improvements, to provide the landowners with reasonable access to
the properties during construction, and to restore the properties following the completion of
construction. One of the main witnesses who was called to testify for Enbridge was licensed real
estate appraiser, Andrew Brorsen. After describing his background and experience for the jury,
Brorsen testified at length on the issue of just compensation. In sum, Brorsen determined and
opined that the total just compensation due for the Fry property was $6200 ($3800 for the
permanent easement across the property, $2400 for the temporary construction easement, and $0
for the damage to the remainder property because, according to Brorsen, there would be no
damage to the remainder property) and that the total due for the Bauer-Lamore property was
$6500 ($3400 for the permanent easement, $3100 for the temporary construction easement, and
$0 for the damage to the remainder property). Brorsen explained to the jury in great detail how
7
he had reached those conclusions. Of relevance to this appeal, Brorsen stated that he had used a
compared-sales approach to determine the fair market value of the whole properties and that he
had used a paired-sales approach, in part, to determine that there was no damage to the remainder
properties as a result of the pipeline easement. Brorsen’s written appraisal reports on the two
properties were admitted into evidence, as were exhibits depicting the comparable and paired
sales selected by Brorsen in conducting his appraisals. Brorsen acknowledged during his
testimony that he had made some mistakes in his appraisal reports; that he had never in his career
as an appraiser found that there was damage to a remainder property as the result of a pipeline
easement; that in every single appraisal report he prepared for Enbridge, he determined that the
diminution in value in the permanent easement area was 25%, regardless of in which county the
property was located; and that his firm had been paid over $300,000 for its work on the pipeline
project.
¶ 18 During the afternoon of Thursday, June 11, 2015, after Enbridge had rested or was
preparing to rest its case, the landowners’ attorney indicated that he planned to call multiple
witnesses, including his controlled expert witness on valuation, appraiser McCann. Enbridge was
given leave by the trial court to voir dire McCann prior to his testimony. The voir dire, however,
could not be conducted until the following morning. Outside the presence of the jury, the trial
court and the attorneys discussed when the further proceedings in this case would take place. The
following conversation ensued:
“THE COURT: Okay. What I’m trying to figure out is what to tell the
jury. My inclination is to tell them to call to see whether or not they need to come
back on Monday because I’m unavailable tomorrow afternoon and it doesn’t
sound like we’re gonna get anywhere close to them until tomorrow.
8
[AN ENBRIDGE ATTORNEY]: I think that’s accurate. I think that if
we—that tomorrow we could accomplish the voir dire of Mr. McCann. That’s—
that’s what I think we’ll get finished so that would be my—I think that’s
reasonable.
THE COURT: Okay. I need to go check—do—I need to go check on the
logistics of it but we’re—have reorganized the entire jury system in an effort to
save money.
(Whereupon, there was a recess so taken.)
So they’re gonna call tomorrow afternoon to see if they need to come in
on Monday.
[AN ENBRIDGE ATTORNEY]: Judge we do have one housekeeping
matter before we break for the day so I don’t know if you want to release the jury.
THE COURT: I want to release the jury because I’m trying to cause the
least inconvenience to them.”
¶ 19 After the jury was brought back into the courtroom, the following was stated:
“THE COURT: Okay. Do you all still have pieces of paper on your
tablets? Okay.
THE BAILIFF: Well, I told them to leave their tablets in there. Are they
gonna need ’em?
THE COURT: Well they’re gonna need this phone number, which I’m
gonna give you, and they’re gonna copy down when they go to leave. Okay. Be
seated. I told you when we started we [sic] that this is a legally technical case and
there would be lots of interruptions, and I would keep them to a minimum. Well
9
I’m trying to figure out how to cause you the least amount of inconvenience.
There are some matters that have to be—come up tomorrow that—and I—I also
have to tell you that I have a mandatory Judge’s meeting—quarterly Judge’s
meeting tomorrow afternoon.
There are some matters that are gonna happen tomorrow morning that
could possibly result in the case not—in us not needing you. I don’t know that,
and I won’t know that, until tomorrow afternoon. So you’re definitely not gonna
be needed tomorrow, and what I need you to do is call the jury commissioner,
whose number I have right here, tomorrow afternoon to find out whether or not
you need to come back on Monday. Okay? Any questions about that? Okay.
UNIDENTIFIED JUROR: Any certain time to call? 2:00? 3:00?
THE COURT: I will know by noon so after 1:30 and the courthouse closes
at 4:30. Yes?
***
THE BAILIFF: But when they call this number it will tell them when to
report back?
THE COURT: You’re gonna be talking to Diane, the jury commissioner
directly. You’re not gonna get a message. It’s not a voice mail. You’ll be talking
directly to a human person.
UNIDENTIFIED JUROR: Do we identify the case then or she’ll know?
THE COURT: You—you call and say does Judge Albrecht need to [sic]
me to come on Monday.
10
UNIDENTIFIED JUROR: But then we may be needed on Tuesday if we
don’t come on Monday, correct?
THE COURT: No. She—you’ll here [sic] need to be here on Monday and
possibly Tuesday or you won’t be needed at all. Okay.”
¶ 20 On the following morning, Friday, June 12, 2015, Enbridge’s attorneys conducted their
voir dire of McCann. The purpose of the voir dire was to allow the trial court to determine
whether McCann had any admissible expert opinions as to valuation. At the time of the voir dire,
the trial court had before it numerous exhibits, including the pertinent discovery disclosures and
responses.
¶ 21 During his voir dire testimony, McCann acknowledged that the disclosures that had been
tendered in this case regarding his expert opinions did not detail the procedures and
methodologies he had used in forming his opinions as to valuation. Rather, the disclosures
merely stated that McCann would testify as to the various procedures and methodologies that he
had used. In addition, although the disclosures listed comparable sales as one of the things that
McCann had considered in forming his opinions, they did not identify a single specific
comparable sale that McCann had used for either the Fry property or the Bauer-Lamore property.
McCann agreed during his voir dire testimony that a person looking at the initial disclosure
would not have any idea what particular comparable sales McCann had used in this case without
taking McCann’s deposition. Furthermore, nowhere in the disclosure was the term “paired sales”
mentioned.
¶ 22 When asked about the supplemental disclosure, McCann agreed that: (1) at the time of
the supplemental disclosure, he had not disclosed any opinions as to the two subject properties;
(2) not a single comparable sale was identified that McCann had used to value the whole
11
property for the Fry tract or the Bauer-Lamore Tract; and (3) not a single Kankakee County sale
was identified. According to McCann, at some time prior to February 2 or February 3, 2015 (the
date when his opinions on the subject properties were disclosed), he identified in his Kankakee
file specific comparable sales in Kankakee County that he believed were comparable to the Fry
property and the Bauer-Lamore property. When asked if he had provided that information to the
attorney for the landowners, McCann responded that he did not think he had provided his
Kankakee file to anyone because no one had asked for it.
¶ 23 McCann stated further during his voir dire testimony that on January 7, 2015, he
personally turned over a flash drive containing his work file to Enbridge’s attorneys. According
to McCann, that drive contained his work file for all of the counties that were requested in the
email that was forwarded to him—Will, Livingston, McClain, and DeWitt Counties. The email
did not mention Kankakee County at all. The work file that McCann turned over did not contain
McCann’s separate Kankakee file that contained the information on the specific subject
properties in this case. McCann commented, however, that there was much information on the
flash drive that he tendered in January 2015 that applied to all of the counties, including
Kankakee, such as the paired-sales data. In addition, McCann acknowledged that there were
hundreds of sales on the drive—it was the properties or interests that had sold in the last number
of years in each of the counties, which he had used as a starting point in his analysis.
¶ 24 During the voir dire, McCann was shown a letter that Enbridge’s attorneys had sent to the
landowners’ attorney requesting McCann’s comparable sales information for the Kankakee
County properties. McCann testified that he did not recall ever receiving or seeing that letter.
McCann was also shown various requests for documents that had been made by Enbridge’s
attorneys. Certain paragraphs in those documents requested that all appraisals, memoranda, and
12
comparable-sales sheets relative to McCann’s expert opinions be turned over. McCann agreed
that since prior to February 2 or 3, 2015 (the date his opinions were disclosed), he had
comparable sales from Kankakee County in his Kankakee file that he used in connection with his
value opinions on the Fry property and the Bauer-Lamore property. McCann also agreed that in
the sales data that was provided in his work file that was tendered on January 7, 2015, there was
not a single sale transaction from Kankakee County.
¶ 25 When McCann was specifically asked by the trial court during the voir dire whether in
the 7000 pages of documents that were tendered in his work file there was a piece of paper that
identified the sales he used for both comparable sales and paired sales, he responded that there
was not a “single document that identifie[d] which sales [he] specifically used.” Later on during
the hearing, the trial court took a recess to allow McCann and the landowners’ attorney time to
try to determine whether certain documents were contained in the work file that had been
tendered to Enbridge’s attorneys in January 2015. None of those documents could be located in
the file that had been tendered. Unable to locate the documents in court, McCann testified that
they were all contained in his Kankakee file, which had not been tendered.
¶ 26 At about that point in the voir dire, Enbridge’s attorneys moved to bar McCann’s
testimony based upon a violation of discovery rules because McCann had never tendered his
Kankakee file, even though Enbridge’s attorneys had requested it twice. According to Enbridge’s
attorneys, because that information had not been tendered, McCann did not have a single
comparable sale to rely on in connection with the two properties in the instant case. Enbridge’s
attorneys stated further that the basis for McCann’s opinions had been omitted or withheld from
the disclosures that were tendered to Enbridge.
13
¶ 27 The trial court ultimately granted Enbridge’s motion to bar McCann’s testimony. In
doing so, the trial court pointed out that in February 2015, Enbridge’s attorneys had specifically
requested that the landowners’ attorney produce all appraisals, memoranda, and all documents
relating to comparable-sales data, but the landowners’ attorney had failed to do so. During the
trial court’s ruling on the issue, the following conversation ensued:
“THE COURT: Based on that—based on you having failed to provide any
documentation whatsoever that was requested—comparable sales data is a
linchpin of Eminent Domain cases and based on your—and it seems almost
deliberate—
[THE LANDOWNERS’ ATTORNEY]: Your Honor.
THE COURT: Your—stop. I’m talking. I’m barring Mr. McCann from
testifying based on [Rules] 213 and 214 and actually this is a [Rule] 219 bar.
[THE LANDOWNERS’ ATTORNEY]: Okay. I’d like to make my record,
Your Honor, if I may?
THE COURT: No. You can submit whatever—I—I—
[THE LANDOWNERS’ ATTORNEY]: I—
THE COURT: I mean you can—you can respond with exhibits, but I don’t
see—unless you can produce to me something that shows that you’ve complied
with this specific request for comparable sales data, I’m—
[THE LANDOWNERS’ ATTORNEY]: Well, Your Honor, we do have
that.
THE COURT: Where?
[THE LANDOWNERS’ ATTORNEY]: There’s—there’s 7,000 pages.
14
THE COURT: Mr. McCann just testified that his Kankakee comparables
and that his—his Kankakee comparables and that his—the—the specific paired
sales are not contained in those 7,000 pages.
[THE LANDOWNERS’ ATTORNEY]: That’s—Your Honor, there are—
THE COURT: And the paired sales are not contained in there.
[THE LANDOWNERS’ ATTORNEY]: There are paired sales from—in
those files, and we’ll provide them on Monday.
THE COURT: No, you may not provide them on Monday. Mr. McCann
just testified that he did not produce—that those documents are not contained in
those 7,000 pages. I even took a recess for you to be able to produce the
documents.
[THE LANDOWNERS’ ATTORNEY]: Your Honor, the—the
information is in there, and when we started this trial we—
THE COURT: Where is the comparable sales data? I have heard nothing
about that. If you have a document that says these are the comparable sales that
Mr. McCann is relying upon, these are the paired sales—I mean you chose not to
do a written appraisal report. That was your choice. That required you—that made
it incumbent upon you to supply the requisite information for your expert’s
opinion. You didn’t do that.
[THE LANDOWNERS’ ATTORNEY]: Your Honor—
THE COURT: Under the rules of—under Rule 219 I think the appropriate
remedy is to bar Mr. McCann.
15
[THE LANDOWNERS’ ATTORNEY]: Your Honor, I would like to—
if—first—well how—how would you like me to finish up my objection on this?
THE COURT: In writing. See you at 10:00 o’clock Monday morning.
[THE LANDOWNERS’ ATTORNEY]: Okay. Alrighty, Your Honor.
Again, I’d like to make a—at least a statement but if the Court’s not gonna allow
that then I’ll take my que on that. Thank you. We’ll see you at 10:00.
THE COURT: Okay.”
¶ 28 When the trial resumed on the morning of Monday, June 15, 2015, the jury was not
present. The landowners’ attorney submitted a written offer of proof as to McCann’s testimony.
The offer of proof stated that McCann would testify as to the comparable market data and paired
sales contained in his work file. Attached to the offer of proof was a copy on compact disc of
McCann’s 7000 page work file that had been tendered to Enbridge’s attorneys in January 2015.
Also attached to the offer of proof was an email that the landowners’ attorney had received from
Enbridge’s attorneys in December 2014, requesting information for Livingston, McLean,
DeWitt, and Will Counties. Based upon McCann’s testimony during voir dire that his Kankakee
file was never disclosed and the other information before the court, the trial court maintained its
ruling barring McCann’s testimony.
¶ 29 The trial court then asked the landowners’ attorney whether it was correct that the
landowners were left without any valuation witnesses. The landowners’ attorney responded that
he had his witnesses present and that he was ready to start his case. The landowners’ attorney
indicated that, although the landowners had been barred from giving testimony as to valuation,
he intended to have each of the landowners testify that they owned the subject properties. The
16
trial court pointed out that the ownership information had already been presented by Enbridge in
its case-in-chief.
¶ 30 The landowners’ attorney indicated that he also intended to call to testify the two farm
tenants on the properties—John Riecke, the farm tenant on the Fry tract, and Dennis Mathena,
the farm tenant on the Bauer-Lamore tract. When asked, the landowners’ attorney told the trial
court that he had disclosed the two farm tenants, who were also named as defendants in this case,
as valuation witnesses. When Enbridge’s attorneys disagreed, the landowners’ attorney pointed
to his generic disclosure from February 2015, which stated that the defendants were expected to
offer opinions as well as facts with respect to the pre- and post-taking value of the property
involved, as well as the unique aspects of the real estate in all respects. The disclosure indicated
that the defendants based their opinions on the personal knowledge and observation of the real
estate in question, their knowledge of the geographic area, discussions with individuals who had
opined value of the property, their familiarity with the property taken, the unique aspects of the
real estate involved, and their general knowledge of the land values in the area. The trial court
found that the disclosure was not sufficient for the two farm tenants to provide expert opinion
testimony as to valuation.
¶ 31 The trial court pointed out that the farm tenants were not the owners of the subject
properties and asked the landowners’ attorney what qualifications the farm tenants had that
would allow them to render expert opinions as to valuation. The landowners’ attorney responded
that Riecke: (1) had farmed the Fry property for the past 27 years; (2) had farmed about 2500
acres in the Kankakee area and surrounding counties, including tracts of property that had
pipelines; (3) owned five to six different farm tracts with pipelines; (4) had knowledge and
experience of real estate; and (5) was knowledgeable as a farmer about farm values in the area.
17
According to the landowners’ attorney, Riecke would opine that the value of the Fry property
was $10,000 per acre for a total of $800,000 for the entire tract. Riecke believed that there would
be a 20 to 25% diminution in value after the pipeline was installed and that the total devaluation
to the Fry property caused by the pipeline would be about $180,000.
¶ 32 The landowners’ attorney stated further that Mathena would testify that he: (1) had been
farming for over 30 years; (2) had farmed the Bauer-Lamore property for the past several years;
and (3) was familiar with farm values in the area. According to the landowners’ attorney,
Mathena would opine that the value of the Bauer-Lamore property was approximately $10,000
per acre and that the property would suffer a diminution in value after the pipeline was installed
of about $180,000.
¶ 33 As the landowners’ attorney was making his argument on the admissibility of the farm
tenants’ testimony, he inquired of the trial court whether the jury had been discharged from the
case. The following conversation ensued:
“THE COURT: The Court—you—you were here for the record. The jury
has not been discharged.
[THE LANDOWNERS’ ATTORNEY]: Okay. I—I was just—I have the
transcript and it appears that the Court said that they were to call in and if they—if
they called in on Friday—and I have the transcript here—that they were either
gonna—
THE COURT: That may cause some difficulty but I did not technically
discharge them.
18
[THE LANDOWNERS’ ATTORNEY]: And then—then my question will
be what will happen, Your Honor, if in fact any of the jurors had the
misunderstanding that they were not—
THE COURT: I’m not—we’re not gonna prejudge that, Mr. [landowners’
attorney].
[THE LANDOWNERS’ ATTORNEY]: Sure. Sure. Well, I just—I want
to go down on the record that—
THE COURT: Well, stop.
[THE LANDOWNERS’ ATTORNEY]: Okay.
THE COURT: We’re doing one thing at a time. We’re dealing with
whether or not the tenants are gonna be allowed to testify***.”
¶ 34 After the attorneys had finished making their arguments on that issue, the trial court ruled
that the proposed testimony of the farm tenants was barred. The trial court found that the
disclosure that was provided did not give the basis for an expert opinion for which the farm
tenants were qualified. The trial court commented that she had never seen an eminent domain
case that put a farm tenant in the same position as a landowner with regard to the ability to testify
to value. The landowners’ attorney was later allowed to file written offers of proof as to the
testimony of the landowners and the farm tenants.
¶ 35 During the proceedings, Enbridge’s attorneys asked that the landowners’ counterclaim be
dismissed as an Illinois Supreme Court Rule 219 (eff. July 1, 2002) discovery sanction. The trial
court ruled that:
“considering the deception that [had] occurred in this case—particularly the
disclosure saying that the basis for the expert’s opinion was disclosed and the
19
contradiction by the testimony of the expert, also considering the fact that the
expert’s file—underlying documentation was specifically requested and the expert
testified that no one asked him for the contents of the Kankakee file, the Court
finds that an appropriate 219 sanction is to dismiss the counterclaim.”
¶ 36 When the landowners’ attorney asked if he should just file the written offers of proof
(those of the landowners and the farm tenants) by the close of business the following day, the
trial court responded that it had “a jury pending out there.” A recess was taken until the afternoon
for the landowners’ attorney to file his offers of proof. After the landowners’ attorney did so, the
trial court reviewed the offers of proof and maintained its ruling that the testimony of the
landowners and the farm tenants was barred.
¶ 37 The landowners’ attorney rested his case, and Enbridge’s attorney moved for a directed
verdict. Enbridge’s attorney asked that, since the only competent evidence as to valuation was
the testimony of Brorsen, a directed verdict be entered in Enbridge’s favor, setting the amount of
just compensation for the permanent and temporary easements in the amount specified in
Brorsen’s testimony. The landowners’ attorney opposed the motion. After listening to the
arguments of the attorneys, the trial court granted Enbridge’s motion for directed verdict. In
doing so, the trial court stated:
“The Court’s previously ruled on Mr. Brorsen’s testimony and his
qualifications and has refused to strike it. And the Court is frustrated and
disappointed that the landowners are being denied their day in court because the
Court was forced by the conduct of counsel in failing to supply any of the
supporting documentation from the Kankakee files to their opponent to strike the
20
testimony of their expert witness. Therefore, the Court is left with the regrettable
decision to allow the motion for directed verdict.”
¶ 38 The trial court entered judgment orders for just compensation to be paid to the
landowners in the amounts that Enbridge had requested. After doing so, the trial court stated to
the clerk, “Dee, you’re gonna have to make sure that the Jury Commissioner knows to inform the
jurors that they need not come back tomorrow morning.”
¶ 39 The landowners later filed a motion for recusal or substitution of judge, alleging that the
judge who had heard the trial had prematurely and improperly discharged the jury on June 12,
2015, and had thus created an appearance of bias and impropriety. The landowners also filed a
posttrial motion that made the same claims of bias and impropriety and that alleged that the
premature discharge of the jury tainted not only the rulings that were made after the jury was
improperly discharged but the rulings that were made before that time as well. In addition, the
landowners raised numerous allegations of trial error in the posttrial motion. Attached to the
posttrial motion were affidavits from two of the jurors who had sat on the jury for the trial. The
affidavits indicated that those two jurors had called the jury commissioner on June 12, 2015, as
they had been directed to do by the trial court, and were told by “a female” or an “individual”
that the case had finished and that their service as jurors would no longer be needed.
¶ 40 Without ruling on the posttrial motion, the trial judge who had heard the trial recused
herself from the case because of a family emergency. The case was assigned to another judge,
who ultimately heard and denied the landowners’ posttrial motion. In doing so, the posttrial
motion judge found, among other things, that Enbridge’s appraiser, Andrew Brorsen, provided
competent opinions as to valuation; that the jury had not been prematurely discharged; that the
landowners made no attempt to trace the source of the information given to their affiants and
21
never obtained an affidavit from the jury commissioner who was available in the courthouse
every day; that the landowners failed to show any appearance of bias or impropriety; that the
farm tenants were not disclosed witnesses as required by the trial court discovery order; that
there was no evidence that the landowners had the requisite knowledge to testify as to value; that
the trial court’s finding that the landowners were engaged in deception and the trial court’s
decision to bar appraiser McCann from testifying were firmly based in the facts of the case; and
that the landowners’ counterclaim was properly dismissed because the landowners had no
valuation witnesses. The landowners appealed.
¶ 41 ANALYSIS
¶ 42 I. Issues Related to the Traverse Motion
¶ 43 As their first point of contention on appeal, the landowners argue that the trial court erred
in the manner in which it conducted the proceedings on the traverse motion and in finding that
Enbridge had negotiated with the landowners in good faith. More specifically, the landowners
assert that the trial court erred in: (1) treating the traverse motion as a section 2-619 (735 ILCS
5/2-619 (West 2014)) motion to dismiss; (2) ruling upon the traverse motion without allowing
the landowners to conduct any pre-hearing discovery and without holding an evidentiary hearing,
contrary to the procedures established by case law; and (3) finding that prior to the filing of the
condemnation complaint, Enbridge had made a good faith offer of just compensation to the
landowners for the easement rights (had negotiated in good faith), despite the fact that Enbridge
had not provided to the landowners any basis, such as an appraisal, upon which the landowners
could determine whether Enbridge’s offer of just compensation was fair. Based upon those
alleged errors, the landowners ask that we vacate the trial court’s ruling on the traverse motion
22
and that we remand this case for the trial court to conduct new proceedings on that motion in
which the proper procedures will be followed.
¶ 44 Enbridge argues that the proceedings in the trial court on the traverse motion were proper
and that the trial court’s ruling on the motion should be upheld, including the trial court’s finding
that Enbridge had negotiated in good faith. As to the landowners’ specific claims, Enbridge
asserts that: (1) there is no indication in the record that the trial court treated the traverse motion
as a section 2-619 motion to dismiss; (2) the trial court did not deny the landowners’ request for
discovery as the landowners made no specific discovery requests and obtained no specific
rulings from the trial court on discovery matters related to the traverse motion; (3) although the
landowners’ attorney claimed at the hearing on the motion that he had witnesses ready to testify,
no witnesses were ever indentified, called to testify, or barred from testifying, and no offers of
proof were ever made as to what the testimony of those alleged witnesses would have been; (4)
an evidentiary hearing on a traverse motion is not required under the case law and was not
required in this case because the landowners presented no evidence to rebut the presumption of
public interest and necessity created by the ICC order or to refute Enbridge’s evidence; and (5)
the trial court’s finding of a good faith offer of just compensation by Enbridge (good faith
negotiation) was well supported by the evidence. For all of the reasons set forth, Enbridge asks
that we affirm the trial court’s ruling, denying the landowners’ traverse motion.
¶ 45 A trial court's ruling on a traverse motion will not be reversed on appeal unless it is
against the manifest weight of the evidence. Department of Transportation ex rel. People v.
Hunziker, 342 Ill. App. 3d 588, 593-94 (2003). That same standard of review applies to a trial
court’s finding of good-faith negotiation in a traverse proceeding. Department of Transportation
ex rel. People v. 151 Interstate Road Corp., 209 Ill. 2d 471, 488 (2004). With respect to
23
discovery, the appellate court will not reverse a trial court’s ruling on a discovery issue, absent
an abuse of discretion. City of Chicago v. St. John’s United Church of Christ, 404 Ill. App. 3d
505, 516 (2010).
¶ 46 The United States Constitution, the Illinois Constitution, and Illinois statutes all prohibit
the government from taking private property for public use without paying just compensation.
See U.S. Const., amend. V.; Ill. Const. 1970, art. I, § 15; 735 ILCS 30/10-5-5 (West 2014); City
of Chicago v. Midland Smelting Co., 385 Ill. App. 3d 945, 964 (2008). When faced with an
eminent domain or condemnation action, a landowner may file a traverse and motion to dismiss
(traverse motion) to challenge the condemning authority’s right to take the property. Village of
Cary v. Trout Valley Ass'n, 282 Ill. App. 3d 165, 169 (1996); Midland Smelting Co., 385 Ill.
App. 3d at 965. A proceeding on a traverse motion is a preliminary proceeding and should be
decided by the trial court without a jury prior to a trial on the issue of just compensation. See
Chicago Land Clearance Comm'n v. White, 411 Ill. 310, 314 (1952); City of Naperville v. Old
Second National Bank of Aurora, 327 Ill. App. 3d 734, 739 (2002).
¶ 47 In a traverse proceeding, the condemning authority bears the burden of establishing a
prima facie case on any disputed allegation. Midland Smelting Co., 385 Ill. App. 3d at 965.
Where eminent domain authority is being exercised to acquire property or a property right that
will be under private ownership or control, such as in the present case, the condemning authority
must prove by clear and convincing evidence that that the acquisition of the property or property
right meets the following two requirements: (1) that it is primarily for the benefit, use, or
enjoyment of the public and (2) that it is necessary for a public purpose. 735 ILCS 30/5-5-5(c)
(West 2014). Evidence that the ICC has granted a certificate or otherwise made a finding of
public convenience and necessity in relation to such an acquisition gives rise to a rebuttable
24
presumption that the acquisition satisfies the above two requirements. See 735 ILCS 30/5-5-5(c)
(West 2014).
¶ 48 In addition to those two requirements, prior to filing a condemnation action, the
condemning authority must make a good faith effort to reach an agreement with the property
owner as to just compensation. See 735 ILCS 30/10-5-10(a) (West 2014); 151 Interstate Road
Corp., 209 Ill. 2d at 480. The lack of such an effort on the part of the condemning authority
requires that the action for condemnation be dismissed. See 151 Interstate Road Corp., 209 Ill.
2d at 480-81. Evidence that an offer was made by the condemning authority based upon the
advice of an experienced appraisal consultant is generally sufficient to establish a good-faith
attempt to agree. Forest Preserve District v. First National Bank of Franklin Park, 2011 IL
110759, ¶ 63. To satisfy the good-faith negotiation prerequisite, however, the condemning
authority is not required to tender its own appraisals to the landowner. Id. ¶ 68. In addition, the
condemning authority is not required to provide more than 10 days for negotiations in order to
satisfy the good-faith requirement. Id.
¶ 49 Having reviewed the record in the present case, we find that it does not support the
landowners’ assertions on this issue. There is no indication in the record that the trial court
considered the traverse motion to be a section 2-619 motion to dismiss; nor is there any
indication that the trial court denied any request by the landowners for discovery. Rather, the
record shows that the landowners did not attempt to obtain any rulings from the trial court on
discovery issues related to the traverse motion. In addition, although the landowners have cited
cases where evidentiary hearings were held on traverse motions, those cases do not stand for the
proposition that an evidentiary hearing is always required in such a proceeding.
25
¶ 50 In this case, the ICC order gave rise to a rebuttable presumption that was sufficient to
establish Enbridge’s prima facie case for condemnation. See 735 ILCS 30/5-5-5(c) (West 2014).
The burden then shifted to the landowners to rebut that presumption. The landowners presented
no evidence to do so. Similarly, although faced with an abundance of evidence showing that
Enbridge had made a good faith offer of just compensation, the landowners presented no
evidence to dispute or counter the showing that Enbridge had made. As noted above, and
contrary to the landowners’ assertion here, Enbridge was not required to tender its land market
survey to the landowners during negotiations to satisfy the good-faith requirement. See Forest
Preserve District, 2011 IL 110759, ¶ 68. Under the circumstances of the present case, the trial
court did not err in the manner in which it conducted the proceedings on the traverse motion, in
finding that Enbridge had made a good faith offer of just compensation, or in ultimately denying
the traverse motion. See 151 Interstate Road Corp., 209 Ill. 2d at 488; St. John’s United Church
of Christ, 404 Ill. App. 3d at 516; Hunziker, 342 Ill. App. 3d at 593-94.
¶ 51 II. Issues Pertaining to the Trial Court’s
Rulings on the Admissibility of Evidence at Trial
¶ 52 As their next point of contention on appeal, the landowners argue that the trial court erred
in certain rulings that it made on the admissibility of the evidence at trial. In support of that
argument, the landowners make three primary assertions. First, the landowners contend that the
trial court erred in barring them from cross-examining Enbridge’s expert witness on two of the
specific rights that Enbridge sought in connection with the easement—the right to prohibit access
to the temporary easement area during construction and the right to mortgage the easement. The
landowners claim that the rights being sought by Enbridge were discussed by the expert in his
direct testimony and that the landowners should have been allowed to question the expert about
those rights further in cross-examination to probe the credibility of the expert’s opinion that the
26
pipeline would not cause any damage to the remainder property. Second, the landowners contend
that the trial court erred when it barred them from testifying as to the value of their property and
the amount of remainder damage. The landowners claim that the trial court’s ruling in that regard
was contrary to the established law and ignored the landowners’ supplemental disclosure
(tendering their opinions as to value), which amended their prior deposition testimony (stating
that they had no opinions as to value). Third, the landowners contend that the trial court also
erred in barring the farm tenants from testifying as to the value of the property and the remainder
damage as well. The landowners claim that the farm tenants were properly disclosed and that the
trial court’s ruling barring their testimony was contrary to established law. According to the
landowners, any potential criticism that could be made of that testimony because of the farm
tenants’ level of experience or their possible consideration of improper factors in their valuation
went to the weight to be given to the testimony and not to the overall question of admissibility.
The landowners claim further that they were severely prejudiced by the trial court’s erroneous
evidentiary rulings in this case, especially those on the admissibility of the valuation testimony.
The landowners ask, therefore, that we reverse the trial court’s judgment and that we remand this
case for a new trial.
¶ 53 Enbridge specifically disagrees with all of the landowners’ assertions on this issue and
argues that the trial court’s evidentiary rulings were proper and should be upheld. As to each of
the three primary allegations of error listed of above, Enbridge claims that the evidence was
properly excluded by the trial court because the evidence was irrelevant, was improper, or had
not been properly disclosed. Enbridge asks, therefore, that we reject the landowners’ argument
on this issue and that we affirm the trial court’s judgment.
27
¶ 54 A trial court's ruling on the admissibility of evidence will not be reversed on appeal
absent an abuse of discretion. In re Leona W., 228 Ill. 2d 439, 460 (2008). The threshold for
finding an abuse of discretion is a high one and will not be overcome unless it can be said that
the trial court's ruling was arbitrary, fanciful, or unreasonable or that no reasonable person would
have taken the view adopted by the trial court. See Blum v. Koster, 235 Ill. 2d 21, 36 (2009);
Leona W., 228 Ill. 2d at 460. If the trial court commits an abuse of discretion, a new trial should
be ordered only if the trial court's ruling appears to have affected the outcome of the trial. See
Leona W., 228 Ill. 2d at 460; Troyan v. Reyes, 367 Ill. App. 3d 729, 732-33 (2006).
¶ 55 After reviewing the record in the instant case, we find that the trial court’s evidentiary
rulings at trial on the condemnation complaint did not constitute an abuse of discretion. In
making its rulings, the trial court considered the relevance and propriety of the evidence that the
landowners sought to present and ultimately determined, in its discretion, that the evidence was
not admissible. First, regarding the denial of the landowners’ ability to cross-examine Enbridge’s
valuation witness as to the specific rights Enbridge sought to acquire, the trial court correctly
found that the information that the landowners sought to elicit in that regard was not relevant to
the matters at issue. Enbridge had already agreed in the evidentiary stipulation to provide
reasonable access to the landowners. Therefore, any question about whether Enbridge had the
right, under the terms of the easement, to restrict access to the easement area would not have
made the existence or non-existence of any material fact in the case more or less probable. See
Ill. Rs. Evid. 401, 402 (eff. Jan. 1, 2011); Voykin v. Estate of DeBoer, 192 Ill. 2d 49, 57 (2000)
(relevant evidence is evidence that has any tendency to make the existence of any material fact
more or less probable than it would be without the evidence). In addition, as Enbridge correctly
notes, any temporary interference with access to the easement area could not, under the law,
28
cause damage to the remainder property. See Trunkline Gas Co. v. O'Bryan, 21 Ill. 2d 95, 100-01
(1960) (recognizing the settled law that the temporary consequential interference with the use of
farm property caused by the construction of a public improvement was not a proper element of
damage to the land not taken). It would also not have been proper under the law to allow the
landowners to suggest to the jury in cross-examination that there were potential negative
consequences that could result if Enbridge obtained an easement on the mortgage when the
landowners had no evidence whatsoever to suggest that those negative consequences could or
would occur. See Department of Public Works & Buildings v. Mitchell, 9 Ill. App. 3d 120, 123-
24 (1973) (finding that it was improper for the condemnor’s attorney to inject into the case
during cross-examination highly speculative evidence, which was contrary to the pleadings and
all of the other basic evidence, that the value of the remainder property would possibly be
increased by the condemnation).
¶ 56 Second, regarding the landowners’ attempt to present their own testimony as to the value
of the property, that testimony would have been directly contrary to the landowners’ prior
statements at the deposition that they had no idea as to the value of their property and to the
landowners’ attorney’s statement that the landowners had no opinions of value initially. It was
clear that the proposed testimony was nothing more than an impermissible attempt to get around
the trial court’s ruling barring the landowners’ expert appraiser from testifying by having the
landowners testify to new opinions that they had formed after consulting with their attorney. In
addition, a review of the offers of proof indicates that the landowners considered improper
factors in forming their opinions of value, such as possible stigma of having a pipeline on the
property and the potential for a pipeline spill. The landowners’ opinions were properly barred for
that reason as well. See Trunkline, 21 Ill. 2d at 100 (recognizing that the speculative possibility
29
of a remote injury that could result from having a pipeline on a property was not a proper
element to be considered in determining whether there would be damage to the remainder
property and that the testimony of a witness, who had considered an improper element of
damage, would be deemed incompetent); City of Mt. Olive v. Braje, 366 Ill. 132, 137 (1937)
(finding that it was improper for the condemnor’s attorney to elicit during the cross-examination
of one of the landowners’ valuation witnesses evidence as to the sale price of that witness’s own
farm, which was directly across the street from the subject property, when the sale of that
witness’s farm was not a voluntary sale and the testimony was not, therefore, competent
evidence of value).
¶ 57 Third, as for the testimony of the farm tenants, even if the farm tenants were sufficiently
qualified to give an opinion as to the value of the property, the farm tenants had not been
specifically identified as potential trial witnesses on valuation in the discovery materials that had
been tendered by the landowners. Thus, we cannot say that it was error for the trial court to bar
the farm tenants from testifying. Under the circumstances of the present case, we conclude that
the trial court’s evidentiary rulings were proper. See Leona W., 228 Ill. 2d at 460; Blum, 235 Ill.
2d at 36.
¶ 58 III. Issues Regarding the Trial Court’s Imposition
of Discovery Sanctions against the Landowners at Trial
¶ 59 As their third point of contention on appeal, the landowners argue that the trial court
erred by barring the landowners’ expert witness, McCann, from testifying and by dismissing the
landowners’ counterclaim as discovery sanctions at trial. The landowners assert that the
sanctions were inappropriate for several reasons. As for the barring of McCann, the landowners
contend first that the sanction was inconsistent with the purpose of Supreme Court Rule 219,
which is to coerce compliance with discovery, rather than to punish the dilatory party. Second,
30
the landowners contend that the sanction was far too harsh in nature, especially in light of the
fact that the landowners had not been sanctioned previously by the trial court in this case. In
making that contention, the landowners point out that Enbridge did not file a motion to compel
disclosure of the information that it sought (the comparable-sales and paired-sales data) and that
Enbridge actively opposed the landowners’ attempt to ensure that all of the information relevant
to McCann’s testimony had been disclosed when Enbridge sought to quash the notice of
McCann’s deposition. According to the landowners, Enbridge purposefully waited until it had
finished its case at trial and then sought to bar the testimony of McCann. Thus, the landowners
claim that Enbridge’s actions regarding this discovery matter were nothing more than the type of
tactical gamesmanship the discovery rules were designed to prevent. Third, the landowners
contend that the trial court failed to consider the factors it was required to consider under the law
to determine whether such a sanction was appropriate. As for the dismissal of the counterclaim,
the landowners make many of the same contentions—that the sanction did not serve the purpose
of Rule 219, that it was far too harsh in nature, and that the sole purpose of the sanction was to
punish the landowners for the alleged discovery violation. Because of the alleged error in
imposing sanctions, the landowners ask that we reverse the trial court’s judgment and that we
remand this case for a new trial on the condemnation complaint.
¶ 60 Enbridge argues that the discovery sanctions imposed by the trial court were proper and
should be upheld. Regarding the barring of McCann’s testimony, Enbridge asserts that the
sanction was appropriate because the landowners’ attorney and their expert had failed to comply
with their disclosure obligations in that they had failed to produce crucial evidence—the
comparable- and paired-sales data—until during the trial. In making that assertion, Enbridge
points out that the trial judge found, and the posttrial motion judge later confirmed, that the
31
discovery violation was almost deliberate in nature. As for the landowners’ claim that Enbridge
was engaging in tactical gamesmanship, Enbridge responds that it was the landowners’ burden
under Rule 213(f)(3) to disclose their controlled expert witness’s opinions and the bases for those
opinions. Enbridge responds further that it had no obligation under the law to inform the
landowners of possible defects in the evidence the landowners’ planned to present, although
Enbridge did do so by making discovery requests for the bases of McCann’s opinion and by
warning the landowners that there were significant flaws in McCann’s opinions and disclosures.
Furthermore, according to Enbridge, the landowners’ attempt to take McCann’s deposition 60
days after the discovery cutoff date and without leave of court was an impermissible effort to
disclose new opinions and was properly denied by the trial court. Regarding the propriety of the
dismissal of the landowners’ counterclaim, Enbridge does not specifically address that
contention in its brief, other than to state that the landowners had an obligation to prove their
counterclaim. For all of the reasons stated, Enbridge asks that we affirm the trial court’s
judgment.
¶ 61 Illinois Supreme Court Rule 219(c) authorizes the trial court to impose a sanction,
including the dismissal of the cause of action, upon any party who unreasonably refuses to
comply with any provision of the supreme court’s discovery rules or any order entered pursuant
to those rules. See Ill. S. Ct. R. 219(c) (eff. July 1, 2002); Shimanovsky v. General Motors Corp.,
181 Ill. 2d 112, 120 (1998). The determination of whether to impose a sanction under Rule
219(c) and the particular sanction to impose rests within the sound discretion of the trial court
and will not be reversed on appeal absent an abuse of discretion. See Shimanovsky, 181 Ill. 2d at
120.
32
¶ 62 When imposing a sanction under Rule 219(c), the trial court's purpose is to coerce
compliance with discovery rules and orders and not to punish the non-complying party. Id. at
123. An order of dismissal with prejudice is a drastic sanction and should be invoked only in
those cases where the party's actions show a deliberate, contumacious, or unwarranted disregard
of the trial court's authority. Id. Because dismissal with prejudice is such a drastic sanction, it
should be used only as a last resort and only after all the court's other enforcement powers have
failed to advance the litigation. Id. In determining whether to impose a sanction upon a party
under Rule 219(c) and the appropriate sanction to impose, the trial court should consider the
following factors: (1) the surprise to the adverse party (the party moving for sanctions); (2) the
prejudicial effect of the proffered testimony or evidence; (3) the nature of the testimony or
evidence; (4) the diligence of the adverse party in seeking discovery; (5) the timeliness of the
adverse party's objection to the testimony or evidence; and (6) the good faith of the party
offering the testimony or evidence. Id. at 124. No single factor, however, is determinative in the
analysis. Id.
¶ 63 Having reviewed the record in the present case, we find that the trial court did not err in
the discovery sanctions it imposed upon the landowners. The record in this case shows that
Enbridge had made repeated requests for the underlying bases of McCann’s expert opinion as to
valuation. Despite those repeated requests, the landowners never tendered that information.
Instead, the landowners tendered 7000 pages of documents and repeatedly asserted, despite
McCann’s voir dire testimony to the contrary, that the bases information had been tendered. In
barring McCann’s testimony, the trial judge found essentially that the landowners had engaged in
deceptive behavior, a finding that was later upheld by the posttrial motion judge. As for the
counterclaim, whether dismissal was an appropriate discovery sanction is a moot point. Without
33
any evidence to establish that the pipeline would cause damage to the remainder property, the
landowners’ counterclaim could not stand and was properly dismissed. We find, therefore, that
under the circumstances of the present case, the trial court did not commit an abuse of discretion
in imposing the discovery sanctions upon the landowners. See Shimanovsky, 181 Ill. 2d at 120;
Leona W., 228 Ill. 2d at 460; Blum, 235 Ill. 2d at 36.
¶ 64 IV. Issues Relating to the Trial Court’s
Alleged Premature Discharge of the Jury
¶ 65 As their fourth point of contention on appeal, the landowners argue that the trial judge
erred and created the appearance of impropriety by prematurely discharging the jury during the
jury trial on the condemnation complaint. More specifically, the landowners assert that the
circumstantial evidence contained in the record indicates that the trial judge in this case either
prematurely discharged the jury or gave the jury the impression that it had been discharged, and
that by doing so, the trial judge created an appearance of impropriety, bias, and prejudice that, by
itself, requires that a new trial be granted. In addition, according to the landowners, when the
premature discharge of the jury is viewed in connection with the trial judge’s rulings in this
case—especially the subsequent rulings barring the landowners’ last witnesses, imposing
sanctions on the landowners, and granting a directed verdict for Enbridge—the appearance of
impropriety is made even stronger. The landowners assert further that the posttrial motion
judge’s finding—that the trial judge’s statements prove that the jury had not been discharged—is
directly contrary to the case law on this issue. Therefore, because of the alleged error and the
alleged appearance of impropriety it created, the landowners ask that we reverse the trial court’s
judgment and that we remand this case for a new trial.
¶ 66 Enbridge argues that the posttrial motion judge’s decision on this issue—that the
landowners had not shown that the jury was prematurely discharged or that there was an
34
appearance of bias or impropriety—was not against the manifest weight of the evidence and
should be upheld on appeal. According to Enbridge, the landowners’ allegations of bias and
impropriety have no good faith basis in law or fact and were nothing more than an impermissible
attempt by the landowners at “judge-shopping” after the landowners had received a series of
adverse rulings from the trial judge. In support of that assertion, Enbridge points out that the only
evidence presented by the landowners in the trial court to support their claim that the jury had
been prematurely discharged was the hearsay statements of two of the jurors and the landowners’
attorney that the jurors had been told by some unnamed individual that the case was over.
Enbridge maintains, therefore, that the landowners have failed to show actual prejudice in this
case, which Enbridge asserts is the required standard, rather than the appearance-of-impropriety
standard that was suggested by the landowners. For all of the reasons stated, Enbridge asks that
we reject the landowners’ assertions on this issue and that we affirm the judgment of the trial
court.
¶ 67 Under the Code of Judicial Conduct, a trial judge must: (1) avoid both impropriety and
the appearance of impropriety; (2) perform his duties impartially and without bias or prejudice;
and (3) disqualify himself or herself in any proceeding where his impartiality might reasonably
be questioned. See Ill. S. Ct. R. 62 (eff. Oct. 15, 1993); R. 63 (eff. July 1, 2013). A trial judge is
presumed to be both fair and impartial, and a party claiming judicial bias has the burden of
overcoming that presumption of impartiality. See Eychaner v. Gross, 202 Ill. 2d 228, 280 (2002);
Calabrese v. Benitez, 2015 IL App (3d) 130827, ¶ 25; Lesher v. Trent, 407 Ill. App. 3d 1170,
1176 (2011). Adverse rulings alone are almost never sufficient to support a claim of judicial bias,
even if those rulings are alleged to be erroneous. Eychaner, 202 Ill. 2d at 280. Rather, the party
claiming judicial bias must show that the judge in question had: (1) a personal bias stemming
35
from some source other than the litigation; or (2) made comments in the course of the
proceedings that revealed such a high degree of favoritism or antagonism on the part of the judge
as to make fair judgment impossible. See Eychaner, 202 Ill. 2d at 280-81; Lesher, 407 Ill. App.
3d at 1176.
¶ 68 In this particular case, the landowners’ claim of judicial bias or the appearance of judicial
bias stems from the landowners’ assertion that the trial judge prematurely discharged the jury
during the jury trial on the condemnation complaint. It cannot be disputed that the integrity of a
jury’s verdict must be above question. See People v. DeStefano, 64 Ill. App. 2d 389, 407 (1965).
After a jury is discharged, its control over a case comes to an end, and the jury generally cannot
be recalled to alter or amend a verdict. See Bond v. Wood, 69 Ill. 282, 284 (1873). The crucial
question in addressing whether a jury has been irrevocably discharged is whether the trial court
has lost control of the jury such that the shield that protects the jury from outside contacts and
influence has been removed. See People v. Gale, 132 Ill. App. 2d 986, 993-94 (1971); People v.
McNeeley, 216 Ill. App. 3d 647, 652 (1991). The posttrial motion judge here considered that
question and made a factual finding that the jury had not been prematurely discharged. A factual
finding by the trial court will generally not be reversed on appeal unless it is against the manifest
weight of the evidence—that is, unless it is clearly apparent from the record that the trial court
should have reached the opposite conclusion or if the finding itself is unreasonable, arbitrary, or
not based on the evidence presented. See Best v. Best, 223 Ill. 2d 342, 350-51 (2006).
¶ 69 Upon a thorough review of the record in the light of the issue raised, we find that the
posttrial motion judge’s ruling was well supported by the evidence. It is clear from the record
that the trial judge was scheduling the jury’s presence in the courtroom in such a manner so as to
minimize any inconvenience to the jurors and was allowing the jurors to phone the court house to
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determine if their appearance was required, rather than merely having the jurors physically be
present at the court house. When the trial judge was specifically asked by the landowners’
attorney whether the jury had been discharged, she responded that she had not technically
discharged the jury. In addition, when the landowners’ attorney asked if he could tender his
offers of proof by the close of business the following day, the trial judge rebuked his request,
stating that she still had the pending jury out there. Furthermore, after the jury trial proceedings
had concluded, the trial judge directed her clerk to let the jury commissioner know that the jurors
would no longer be needed so that the jurors could be properly informed—a step which would
not have been necessary if the jury had already been discharged. The only evidence presented by
the landowners to contradict what was contained in the record was the hearsay statements of two
of the jurors and the landowners attorney that the jurors had called the jury commissioner and
were told by an unnamed individual that the case was over and that they were no longer needed.
As the posttrial motion judge noted, however, the landowners did not obtain an affidavit from the
jury commissioner as to what had occurred, despite the fact that the jury commissioner was
present at the court house every day. Moreover, there is simply no indication in this case that the
trial judge lost control of the jury or that the protective shield that must surround the jury had
been removed. See Gale, 132 Ill. App. 2d at 993-94; McNeeley, 216 Ill. App. 3d at 652.
Therefore, under the circumstances of the present case, we find that the posttrial motion judge’s
ruling—that the jury had not been prematurely discharged—was not against the manifest weight
of the evidence and must be upheld. See Best, 223 Ill. 2d at 350-51; Gale, 132 Ill. App. 2d at
993-94; McNeeley, 216 Ill. App. 3d at 652.
¶ 70 By reaching that conclusion, we have rejected the underlying factual premise upon which
the landowners’ claim of judicial bias was based. We need not, therefore, address any further the
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landowners’ claim of judicial bias or resolve the question of whether the appearance-of-
impropriety standard or the actual-prejudice standard should be applied under the factual
circumstances of the present case.
¶ 71 V. Issues Pertaining to the Trial Court’s
Grant of a Directed Verdict for Enbridge
¶ 72 As their final contention on appeal, the landowners argue that the trial court erred in
granting Enbridge’s motion for a directed verdict at the conclusion of the landowners’ case-in-
chief. However, as the landowners’ own attorney noted more than once during the trial
proceedings, a directed verdict was properly granted for Enbridge because the landowners had no
evidence of valuation to present. See Maple v. Gustafson, 151 Ill. 2d 445, 453 (1992)
(recognizing that a motion for a directed verdict in a jury trial is properly granted in those limited
cases where all of the evidence, viewed in the light most favorable to the opponent, so
overwhelmingly favors the movant that no contrary verdict based on that evidence could ever
stand). We, therefore, affirm the trial court’s grant of a directed verdict for Enbridge.
¶ 73 CONCLUSION
¶ 74 For the foregoing reasons, we affirm the judgment of the circuit court of Kankakee
County.
¶ 75 Affirmed.
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Enbridge Energy v. Fry
Court: Appellate Court of Illinois
Date filed: 2017-04-10
Citations: 2017 IL App (3d) 150765
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