Enbridge Energy, LLC v. Kuerth

2016 IL App (4th) 150519

• Court: Appellate Court of Illinois
• Decided: December 14, 2016
• Docket: 4-15-0519 4-15-0520 cons.
• Status: Unpublished

Opinion

FILED 2016 IL App (4th) 150519 December 13, 2016 Carla Bender NOS. 4-15-0519, 4-15-0520 cons. 4th District Appellate Court, IL IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

) Appeal from ENBRIDGE ENERGY (ILLINOIS), L.L.C., ) Circuit Court of n/k/a ILLINOIS EXTENSION PIPELINE ) Livingston County COMPANY, ) No. 14ED12 Plaintiff-Appellee, ) v. (No. 4-15-0519) ) 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., ) No. 14ED13 n/k/a ILLINOIS EXTENSION PIPELINE ) COMPANY, ) Plaintiff-Appellee, ) v. (No. 4-15-0520) ) Honorable KENNETH L. KUERTH; DIANNE KUERTH; NON- ) Mark A. Fellheimer, RECORD CLAIMANTS; and UNKNOWN ) Judge Presiding. OWNERS, ) Defendants-Appellants. )

JUSTICE STEIGMANN delivered the judgment of the court, with opinion. Justices Holder White and Pope concurred in the judgment and opinion.

OPINION

¶1 In April 2014, the Illinois Commerce Commission (Commission) granted plain-

tiff, Enbridge 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 Diane Kuerth (Kuerths) (Livingston County

case No. 14-ED-13; this court’s case No. 4-15-0520) (collectively, landowners) seeking to de-

termine the just compensation for its easement interests in landowners’ respective properties.

Thereafter, landowners each filed a “traverse and motion to dismiss” (traverse motion), request-

ing 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 con-

demnation 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.

-2- ¶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

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 land-

owners who had declined the compensation IEPC had offered in exchange for the aforemen-

tioned easements on the landowners’ respective properties. The Commission’s order provided,

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

-3- 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. Intervenors I, 405 Ill. App. 3d 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. Illi-

nois Commerce Comm’n, 239 Ill. 2d 589, 943 N.E.2d 1108 (2011) (table).

¶ 12 2. IEPC’s Renewed Petition for Eminent-Domain Authority

¶ 13 In July 2013, IEPC renewed its request for eminent-domain authority, seeking to

condemn 148 of the 679 tracts of land traversed by the planned SAX project route because the

owners of those respective properties had either (1) refused to negotiate with IEPC or (2) de-

clined IEPC’s compensation offers despite extensive negotiations. (IEPC’s continued negotia-

tions reduced the number of “holdout” landowners from 148 to 127, meaning approximately

81% of landowners 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 consid-

ers 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

-4- 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 recommended that the

Commission approve IEPC’s petition for eminent-domain authority. In April 2014, the ALJ rec-

ommended that the Commission grant IEPC eminent-domain authority.

¶ 15 Later that month, the Commission issued its written order, in which it (1) accept-

ed 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, suffi-

cient evidence was presented to show that (1) the number, nature, and extent of [IEPC’s] con-

tacts with the landowners had been adequate; (2) IEPC adequately explained its offer of compen-

sation 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 authori-

ty 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

-5- 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 Di-

ameter 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 re-

duce 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 parame-

ters of the SAX project. Based on these changed factors, IEPC calculated that the capacity re-

quirements 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 capaci-

ty of the 36-inch pipeline was approximately 400,000 bpd.) With regard to its 300,000 bpd ap-

proximation, 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 evi-

dentiary hearing, an ALJ considered (1) written and oral direct testimony and (2) oral cross-

examination testimony on IEPC’s May 2014 motion to amend. Thereafter, the parties filed, in

pertinent part, additional posthearing briefs. In its November 2014 posthearing reply brief, IEPC

acknowledged that in July 2014, Enbridge Energy Company, Inc. (IEPC’s parent company),

-6- agreed to sell to a 35% equity interest in the SAX project to Marathon.

¶ 21 In December 2014, the ALJ recommended that the Commission grant IEPC’s mo-

tion to amend, subject to certain conditions. Later that month, the Commission determined that

public convenience and necessity required issuance of 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 pipe-

line 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 evi-

dence; (2) IEPC’s certificate in good standing had expired; and (3) IEPC was no longer a com-

mon carrier by pipeline because of self-imposed limits that excluded the public. As to its last ar-

gument, 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) (table).

¶ 24 B. The Issues on Appeal

-7- ¶ 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 under-

lying 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 of-

fers 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 car-

rier pipeline” against landowners, seeking to determine just compensation for its corresponding

interest in landowners’ respective properties. Appended to its motion was the Commission’s

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 fil-

ing:

“1. [IEPC] is not properly vested with authority to acquire

-8- the property of [d]efendants by proceeding in eminent domain.

2. *** [T]he property sought to be acquired *** is not nec-

essary 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 ob-

tained is expired and is not transferable to a different project.”

-9- (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 mo-

tions 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)). Specifical-

ly, 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 [mo-

tion], to be fully addressed by [landowners] in the required final evidentiary hearing[,] will re-

quire 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.”

¶ 34 c. Landowners’ Amended Counterclaim

¶ 35 In November 2014, landowners filed a “counterclaim for damages to the remain-

der,” which they later amended. Landowners’ April 2015 amended counterclaim sought compen-

sation 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 testi-

mony of certain witnesses landowners disclosed pursuant to Illinois Supreme Court Rule 213(f)

- 10 - (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 calculat-

ing the fair market value of landowners’ properties, both immedi-

ately before and after the taking. [Citation.] Thus, the only special-

ized knowledge that would assist the trier of fact is expertise in

calculating the fair market value of the property.” (Internal quota-

tion 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 conclu-

sion.”

- 11 - ¶ 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. Landown-

ers confirmed that they either had “no idea,” no opinion, or, in the case of Kenneth, that any val-

uation he provided would be based on “speculation.”

¶ 42 In February 2015, landowners filed “Consolidated *** Supplemental Rule 213(f)

Disclosures,” in which Debra, Diane, 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 lo-

cal area land owners, discussions with [an] 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 *** Addition-

al Supplemental Rule 213(f)(1) Disclosures,” in which Debra and Kenneth reconfirmed their in-

tent 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, *** under-

- 12 - standing of the risks associated with the construction of the pipe-

line through the use of the temporary and permanent easements,

including: interference with the rest of the property’s farming op-

erations 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 opin-

ion regarding the value of their land directly contradicted claims landowners made in their sub-

sequent 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 perti-

nent 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 remain-

der property after the taking and how these concepts apply to these

- 13 - 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 repre-

sentations, 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 mo-

tions and discovery filings, (1) this court had published Intervenors I, which affirmed the Com-

mission’s July 2009 grant of a certificate in good standing issued to IEPC in docket No. 07-0446;

(2) Intervenors II—which challenged the Commission’s grant of eminent-domain 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.]

- 14 - 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, ra-

ther 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 Dis-

trict 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 initial-

ly 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. Land-

owners also acknowledged that (1) courts in Will and Kankakee Counties had denied the associ-

ated 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 hear-

ing 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

- 15 - 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.

¶ 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 stand-

point, putting it all together, that if discovery is not going to be

- 16 - 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 “specu-

lative 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:

- 17 - “[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 foun-

dation, as to the per acre value of the farms.

THE COURT: Correct.

[IEPC]: But that is it.

[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, remain-

der damage, and total just compensation.

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 obvious-

ly 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:

- 18 - “[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 transac-

tions 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, op-

erate, 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 termi-

nate 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 de-

termine 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.”

- 19 - 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 agricul-

tural, *** you go out then in the market and look for transactions

of agricultural properties that are comparable to that 54 acres.”

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 clas-

sified as agricultural for highest and best use purposes. Brorsen then testified in detail to the spe-

cifics 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” cate-

gory 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 ap-

praisal 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;

- 20 - 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 ac-

quired by the pipeline and is not equal to fee value. Based on inter-

views with market participants, a property with an easement may

yield the same unit value as a property with no permanent ease-

ment, 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 perma-

nent 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)

- 21 - After Acquisition $16,500 ($22,000 - $5,500)

Damage to the Property

Within Permanent Easement $5,500 ($11,800 x 1.861 x .25 discount)

Within Temporary Easement $1,500 (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

Within Permanent Easement $5,300

Within Temporary Easement $1,400

¶ 73 ii. Landowners’ Evidence

¶ 74 Kenneth testified that he was a self-employed farmer who grows corn and soy-

beans. 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

- 22 - 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 re-

spect 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 to-

ward.”

(After asking one more question, landowners’ counsel ceased his direct examination of Ken-

neth.)

¶ 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 ex-

isting underground pipelines, and (5) would not be able to build any foundational structure over

- 23 - 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 valua-

tion 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 val-

ue 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 “indi-

vidual 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 occur-

ring 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

- 24 - 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 go-

ing 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 damag-

es 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.”

¶ 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 counter-

- 25 - claim 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 fol-

lowing two distinct overarching issues: (1) IEPC’s condemnation suit, which includes claims re-

garding 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) land-

owners’ 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.

- 26 - ¶ 91 b. Landowners’ Just Compensation Testimony

¶ 92 Landowners argue that the trial court abused its discretion by barring their testi-

mony 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 es-

tablished. 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 proper-

ty 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 land-

owners failed to provide a sufficient basis for their proposed opinions. In other words, landown-

ers assert that the court barred the evidence because landowners could not prove that their opin-

ions were reliable—that is, that they had “some peculiar means of forming an intelligent and cor-

rect 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) disclo-

- 27 - sures 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, land-

owners stated that they based their valuation opinions, in part, on “fear” and “stigmatism” asso-

ciated 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’ testimo-

ny 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 consid-

ered 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 be-

tween 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 testimo-

ny 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, sub-

standard, or other illegal condition, use, or occupancy of the prop-

erty, including any violation of any environmental law or regula-

- 28 - tion; (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 occu-

pancy.” 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 lo-

cated on their respective properties. Landowners’ reliance, however, is misplaced because sec-

tion 10-5-50 of the Act applies only “if there was evidence [landowners] used [their] own prop-

erty 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 deter-

mined that testimony concerning “a possible safety issue in the future” regarding different pipe-

lines 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 testi-

mony 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

- 29 - negative stigma onto the property,” (2) the “potential hazard devalues the property,” and (3) hy-

drostatic testing will negatively impact land value. In each instance, the trial court barred the tes-

timony, 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 per-

suasive. 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 ele-

- 30 - ment of damage.” The supreme court also stated that “where a witness has considered 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 pro-

ceedings 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 tem-

porary 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

- 31 - 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 ease-

ment.”

¶ 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 misunder-

standing of what [McCann] stated [during] voir dire” and (2) the confusion created by IEPC’s

- 32 - “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 im-

proper 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 be-

fore.” 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 reason-

ably 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 in-

dependent 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

- 33 - 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 ease-

ment 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 prop-

erty 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 build-

ing 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 val-

ue for that permanent easement,” given the small portion of rights landowners cede to IEPC. Af-

ter 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

- 34 - 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) = $5,283.45 (rounded to $5,300).

Brorsen also applied this methodology to the Debra Trust property.

¶ 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 respec-

tive properties by the existence of the permanent easements.

¶ 122 When landowners rested their case in chief, the only competent evidence present-

ed to the jury on the sole issue before it was Brorsen’s expert opinion regarding the compensa-

tion landowners were entitled to receive for IEPC’s interest in their respective properties. Land-

owners 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

- 35 - 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. Le-

gal Educ. 2013). As a result, a major revision from article VII was the codification of the stand-

ards 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 un-

der the Public Utilities Act ***) to be used for utility purposes cre-

ates 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 pro-

vide 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 Gen-

eral in Civil Actions and Proceedings,” provides, as follows:

“In all civil actions and proceedings not otherwise provided

- 36 - 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 ju-

risdictions in this country follow the rule that a rebuttable pre-

sumption 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 presump-

tion 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

- 37 - 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 disap-

pears 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. Id. The obvious question then is, “How much evidence is re-

quired 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 suf-

ficient 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 pre-

- 38 - sumption is sometimes referred to as a “ ‘strong’ ” presumption. Id.

¶ 134 Due to compelling policy considerations, a party challenging a strong presump-

tion 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 presump-

tion that an adopted child is a descendent of the adopting parent for inheritance purposes). Alt-

hough this strong presumption commonly arises in fiduciary relationships, it has also been ap-

plied 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 cer-

tain real estate as joint tenants. Id. at 507, 126 N.E.2d at 225. The husband later executed a quit-

claim deed in which he conveyed his interest in the property to his wife. Id. When the parties lat-

er 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 es-

tranged 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.

- 39 - ¶ 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 con-

vincing 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 testimo-

ny. Id. at 511, 126 N.E.2d at 227. The supreme court concluded that “[w]hen the [husband’s] tes-

timony 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 appel-

late court stated that “[t]his court is required to indulge every presumption in favor of the sher-

iff’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 re-

demption of property after tax sale has been made on behalf of proper party, the burden is sub-

stantial 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

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

- 40 - 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 Com-

mission 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 de-

cision 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 regula-

tors. 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 Commis-

sion’s interpretation of the [Public Utilities] Act is accorded def-

erence because administrative agencies enjoy wide latitude in ef-

fectuating 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 en-

trusted to the Commission, and not to the courts. [Citations.] A rate

is more than a number; it is also a design. The Commission’s deci-

sion in a rate case does not involve simply what utilities may

- 41 - 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 pro-

cess. 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 Commis-

- 42 - sion rate setting. Nonetheless, the foregoing authority supports the proposition that the Commis-

sion, 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. Deem-

ing 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 be-

cause (1) the court denied discovery on issues raised concerning the propriety of the Commis-

sion’s certification process for the SAX project; (2) IEPC’s certificate in good standing had ex-

pired; (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,

- 43 - 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 neces-

sity 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 con-

demnation 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 enjoy-

ment 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 do-

main 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 estab-

lishes 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).

¶ 147 In this case, IEPC established a prima facie case that it had engaged in good-faith

- 44 - 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 Commis-

sion in support of its renewed request for eminent-domain authority). After considering that evi-

dence, 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 presump-

tions—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

- 45 - 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 cer-

tificate 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 ques-

tion 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 “Commis-

sion’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 Com-

mission.” 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 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 litiga-

tion. The hearing was on the reasonableness of the utility’s plans

- 46 - 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 gener-

ated 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 pre-

senting 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 determina-

tion that IEPC had engaged in good-faith negotiations when the Commission granted IEPC emi-

nent-domain authority. Accordingly, we vacate the court’s denial of landowners’ respective trav-

erse motions and remand for limited proceedings, as we will further explain. We are also retain-

ing 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 procedur-

al posture of this court’s remand.

- 47 - ¶ 154 Over 23 years ago, this court considered the propriety of a trial court’s determina-

tion, 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 of McLean-De Witt Counties, 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 sched-

ule and we now shape the procedural aspects of our decision with

the need for a speedy resolution of this dispute in mind. We con-

clude 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 the

[School] Code [(105 ILCS 5/7-2a(b) (West 1992))] makes no ex-

press provision for a hearing upon objections to the petition, we

hold that the Regional Board should have permitted the objectors

- 48 - to be heard. Accordingly, we will remand to the Regional Board to

conduct such a hearing. Our ultimate decision will turn on that is-

sue.” 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 direc-

tions 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 hold-

ing 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 of McLean-De Witt Counties, 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:

- 49 - “[Wapella I] neither affirmed, reversed, nor modified the order on

appeal. However, the opinion indicated approval of all of the ac-

tions of the Regional Board except for its ruling prohibiting the re-

quest of the objectors to be heard on the question of the sufficiency

of the petition to dissolve. Accordingly, we remanded to the Re-

gional Board with directions to hold an evidentiary hearing on

those objections and to certify its ruling to us on an expedited ba-

sis.

***

The objectors’ theory in regard to the Regional Board’s ju-

risdiction 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 sin-

gle point, but we did not abdicate any part of our general jurisdic-

tion of the matter. [Citation.] Thus we did not enter a judgment and

no mandate was appropriate. No new notice of appeal was neces-

sary 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.

- 50 - ¶ 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 per-

mitting 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 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 oc-

cur 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 had 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 man-

date 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 litigat-

- 51 - ing 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 ob-

vious—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 Commis-

sion’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 men-

tioned, 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 fol-

lowing 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 condem-

nation against landowners’ respective properties—IEPC enjoyed the rebuttable presumptions

- 52 - that its interests in landowners’ respective tracts of land were (1) primarily for the benefit, use, or

enjoyment of the public; and (2) necessary for a public purpose. In addition to those presump-

tions, the Commission determined that eminent-domain authority in IEPC’s favor was warranted

because good-faith negotiations between IEPC and landowners had failed. Thus, landowners

were entitled to present relevant evidence to rebut these specific presumptions and to refute the

good-faith finding. We note, however, that in their July 2014 traverse motions, landowners dis-

regarded the limited scope of the traverse hearing by attempting to litigate anew the Commis-

sion’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), re-

spondent 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] sub-

ject 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 pur-

- 53 - poses 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 Illi-

nois 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 neces-

sity.” [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

- 54 - 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 fa-

cie showing in the first instance—i.e., that the purpose for which

the land is sought is one of public convenience, and the acquisi-

tion, reasonable in scope, is an expedient means of accomplishing

the purpose. It may, second, constitute an attempt to 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 ques-

tion 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 do-

main case is limited but crucial.” (Internal quotations marks omitted.)).

¶ 166 Based on the aforementioned discussion of the proper scope of a traverse hearing,

- 55 - the trial court on remand should consider only two matters, which are landowners’ claims chal-

lenging (1) the rebuttable presumptions of public use and public necessity and (2) the Commis-

sion’s determination as to good-faith, as generally set forth in paragraphs 2 through 6 of land-

owners’ 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 mat-

ter,’ ” 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 spe-

cific 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 in-

quiry. 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 no-

- 56 - tion 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 prepa-

ration 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 proceed-

ings (as this case clearly shows).

¶ 171 Consistent with the limited nature of a traverse motion, as well as our limited re-

mand, we direct the trial court to assume control of the discovery proceedings in the instant case

by requiring any discovery request to set forth with specificity (1) the information the party

seeks, (2) the alleged source of that information, and (3) the relevance of the information sought,

given the limited remand in this case. The aforementioned listing, however, does not preclude

the court from imposing further discovery requirements.

¶ 172 Consistent with City of Chicago, the trial court should determine whether any dis-

covery 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 al-

ready 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 ex-

plicit direction that the trial court conduct an expedited traverse hearing limited to the claims at

- 57 - 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 af-

firmed 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 land-

owners. See Intervenors II, 2015 IL App (4th) 140592-U, ¶¶ 23-26 (summarizing McKay’s tes-

timony 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 ap-

pears 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 con-

vincing 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 se-

cond 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 super-

vise discovery and conduct further proceedings regarding a traverse hearing in an expedited fash-

ion. 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 determi-

- 58 - nation, 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 evi-

dence 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 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 trav-

erse 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

- 59 - ¶ 177 We note that in other contexts, the appellate court has remanded a cause to con-

duct 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 rela-

tive to this issue in this court.” Bohanan, 243 Ill. App. 3d at 352,

612 N.E.2d at 48.

See also People v. Fellers, 2016 IL App (4th) 140486, ¶ 36 (while retaining jurisdiction over the

case, the appellate court remanded to the trial court for the limited purpose of conducting an ap-

propriate hearing on the defendant’s ineffective-assistance-of-counsel claim); Fleming v.

Moswin, 2012 IL App (1st) 103475-U, ¶¶ 45-46 (while retaining jurisdiction over the case, the

appellate court remanded to the trial court for the limited purpose of conducting a Batson hearing

within 60 days and requiring the parties to file responses within 14 days of trial court’s ruling on

remand).

- 60 - ¶ 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.

¶ 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 direc-

tions. In so ordering, this court retains jurisdiction to review the trial court’s ruling following re-

mand. See People v. Garrett, 139 Ill. 2d 189, 195, 564 N.E.2d 784, 787 (1990) (“The appellate

court is empowered under Rule 615(b) to remand a cause for a hearing on a particular matter

while retaining jurisdiction.”).

¶ 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 sup-

plemental 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 re-

mand with directions for further proceedings consistent with the views expressed herein.

¶ 183 Vacated; cause remanded with directions.

- 61 -