2021 IL App (1st) 200813 No. 1-20-0813 Opinion filed December 14, 2021 SECOND DIVISION ______________________________________________________________________________
IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________
THE ILLINOIS STATE TOLL HIGHWAY ) AUTHORITY, ) ) Plaintiff-Appellee, ) ) Appeal from the v. ) Circuit Court of ) Cook County CHICAGO TITLE LAND TRUST COMPANY, as ) Trustee Under Trust Agreement Dated September 30, ) No. 15 L 50611 1996, Known as Trust No. 1103184; THE COOK ) COUNTY TREASURER; UNKNOWN OWNERS; and ) The Honorable NONRECORD CLAIMANTS ) Mary Colleen Roberts, ) Judge Presiding. Defendants ) ) (Chicago Title Land Trust Company, as Trustee Under ) Trust Agreement Dated September 30, 1996, Known as ) Trust No. 1103184, Defendant-Appellant).
PRESIDING JUSTICE FITZGERALD SMITH delivered the judgment of the court, with opinion. Justices Howse and Lavin concurred in the judgment and opinion.
OPINION
¶1 Following a bench trial to determine final just compensation in an eminent domain
proceeding, the defendant Chicago Title Land Trust Company, as trustee under a trust agreement
dated September 30, 1996, known as trust No. 1103184 (defendant), appeals several rulings by the No. 1-20-0813
trial court pertaining to the operative date for valuing the property, along with its denial of the
defendant’s motion to continue the trial. We affirm the judgment of the trial court.
¶2 I. BACKGROUND
¶3 On August 25, 2015, the Illinois State Toll Highway Authority (Toll Highway Authority)
filed a complaint for condemnation to acquire a 1.247-acre parcel of land at the corner of Elmhurst
Road and Old Higgins Road in unincorporated Cook County, near Elk Grove Village, as part of
its Elgin O’Hare Expressway Western Access Project. The defendant was the owner of the subject
property. The Toll Highway Authority sought to acquire the subject property by use of the quick-
take procedure of the Eminent Domain Act (735 ILCS 30/20-5-5 et seq. (West 2014)), which the
trial court allowed and set the preliminary just compensation for the taking of the subject property
at $800,000. After the Toll Highway Authority deposited that sum of preliminary just
compensation with the county treasurer, the trial court entered an order on November 19, 2015,
vesting the Toll Highway Authority with title to and right to immediate possession of the subject
property.
¶4 The case proceeded to discovery for a final determination of just compensation for the taking.
During discovery, three expert witnesses were disclosed to testify on issues of valuation and just
compensation for the taking of the subject property. Two of these expert witnesses, Kenneth
Polach and Nicholas Solano, were disclosed by the Toll Highway Authority. Although the full
expert witness disclosures and reports are not included in the record on appeal, the defendant’s
brief indicates that it was disclosed in 2015 that Polach would testify that the value of the subject
property was $800,000, and Solano was disclosed in 2019 to testify that its value was $870,000.
The defendant disclosed in 2016 that Neil J. Renzi would testify that the value of the subject
property was $2,715,000. All three expert witnesses used August 25, 2015, which was the date
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that the complaint had been filed, as the operative date for determining just compensation.
¶5 There are several court orders pertinent to the issues on appeal, specifically those setting
deadlines for the filing of motions and those involving whether the case was set for jury trial on
February 10, 2020. The first is an order entered on July 16, 2019, in which the trial court initially
set the case for jury trial on January 13, 2020. The case was continued to July 31, 2019, on which
date the trial court entered an order stating, “The trial date of January 13, 2020 is stricken and
continued to February 10, 2020 at 9:30 AM in Room 2505.” That order also set a pretrial date of
February 6, 2020, “where parties will present their motions in limine.”
¶6 On September 17, 2019, the trial court entered an order allowing the two law firms that had
been representing the defendant until this time to withdraw their appearances. On November 12,
2019, as no substitute appearance had been filed, the trial court entered an order of default against
the defendant. On December 12, 2019, an appearance was filed on behalf of the defendant by the
Law Office of Arnold H. Landis, P.C. A motion to vacate the default was also filed, which the trial
court granted on December 26, 2019.
¶7 On January 9, 2020, which was a date previously set for hearing on a motion for summary
judgment that had been filed while the defendant was in default, the trial court entered an order
stating, “This matter is set for pretrial on 2/10/2020 9:30 am.” On January 13, 2020, which would
have been the originally set trial date, the trial court entered an order stating, “Matter stricken or
withdrawn from call. 2/10/20 date to stand.”
¶8 On January 17, 2020, the trial court entered an order that counsel for all parties were to appear
on January 21, 2020, “to discuss deadlines for any pre-trial motions regarding the trial scheduled
for February 10, 2020.” Also on January 17, the Toll Highway Authority filed a motion to schedule
a jury view of the subject property on February 14, 2020. On January 21, 2020, the trial court
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granted that motion and scheduled the jury viewing for February 14.
¶9 A second order was also entered on January 21, 2020, which set a deadline of January 24,
2020, for the filing of any motions in limine. It also required any responses and courtesy copies to
be provided seven days thereafter. Finally, it provided that the hearing on any motions in limine
and the pretrial conference was set for February 10, 2020.
¶ 10 On January 29, 2020, an order was entered in the case by the presiding judge of the law
division, which stated that “the above case is scheduled to appear for trial setting in Courtroom
2005 on February 20, 2020.” That order further stated, “All cases appearing for trial setting will
be receiving trial dates and, as such, all parties should discuss trial dates to suggest to the court
that are within six months.”
¶ 11 On February 6, 2020, which was the date originally set for the presentation of motions
in limine, the trial court entered an order stating, “Matter stricken or withdrawn from call; pre-
trial/trial date to stand on Feb. 10, 2020.”
¶ 12 On February 7, 2020, an additional appearance on behalf of the defendant was filed by a
second law firm, Neal & Leroy, LLC. Also on February 7, 2020, a motion was filed on behalf of
the defendant seeking to bar the testimony of Pollock and Solano. The basis of the motion was that
both of them had improperly used the date of filing the complaint (August 25, 2015) as the
operative date for determining the amount of just compensation for the taking of the subject
property. The defendant argued that it was constitutionally entitled to have compensation
determined as of the date of “taking” and that in this case the date of taking was November 19,
2015, when the Toll Highway Authority had acquired title and the right to possession of the
property after depositing the amount of preliminary just compensation awarded. The defendant
argued that this result was required by Kirby Forest Industries, Inc. v. United States, 467 U.S. 1
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(1984), and Forest Preserve District of Du Page County v. First National Bank of Franklin Park,
2011 IL 110759, and that these cases had “invalidated” section 10-5-60 of the Eminent Domain
Act (735 ILCS 30/10-5-60 (West 2020)), which establishes the valuation date as the date that a
complaint to condemn is filed. It argued that an appraisal using a valuation date other than the date
of taking is inadmissible and that, as a result of the Toll Highway Authority’s failure to disclose
an opinion using the constitutionally required valuation date, it had “no admissible evidence
relating to the value of the subject property as of the constitutional date of taking.”
¶ 13 On February 10, 2020, the parties appeared before the trial court, and the defendant’s
attorneys indicated their intention to present their motion to bar witnesses to the trial court. The
attorney for the Toll Highway Authority objected to the court’s consideration of the motion on the
grounds that it was untimely, as the trial court’s order of January 21, 2020, had required any
motions in limine to be filed by January 24, 2020, and the defendant’s motion had been filed after
that date and without leave of court to do so. In response, the defendant’s attorneys argued that the
court should exercise its discretion to consider the motion based on the constitutional magnitude
of the question involved. The trial court denied the defendant’s motion based on the fact that it
was untimely, had been filed without leave of court, and was first presented on the day of trial.
¶ 14 Thereafter, the defendant’s attorneys indicated that the defendant may wish to seek
certification of the question under Illinois Supreme Court Rule 308 (eff. Oct. 1, 2019). Further
discussion then occurred about the fact that the motion that had been filed only sought to bar
witness testimony based on the valuation date that the witnesses used and the fact that the basis
for its denial was the untimeliness of its filing and presentment. The trial court clarified that the
defendant’s motion had not raised the substantive question of whether the subject property must
be valued as of the date of “taking,” as opposed to the date of filing the complaint. The court noted
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that section 10-5-60 provided a procedure by which a trial court could declare a valuation date that
was different than the date of filing of the complaint but that no party had ever brought a motion
under that statute requesting a valuation date different than the date of filing. The defendant’s
attorney responded that he was not asking the valuation date to be changed, but rather his argument
was that the requirement of section 10-5-60 that valuation be determined as the date of filing the
complaint was unconstitutional. The trial court replied that this issue had not been properly
presented to it. It stated also that there had been no evidence presented that the subject property
had undergone any change in value in the three months between August 25, 2015, and November
19, 2015. The trial court therefore denied the defendant’s motion for certified question.
¶ 15 The trial court then asked all the attorneys whether they were ready to proceed to trial. The
defendant’s attorneys stated that they were unaware of any court order setting the case for trial that
day. They asserted there was confusion about whether the case was set for trial, caused particularly
by the order of January 21 setting the case for pretrial conference on February 10 and the order
entered by the presiding judge of the law division that the case was scheduled for trial-setting on
February 20. A lengthy colloquy then occurred, during which the trial court and the attorneys
discussed the various orders, set forth above, that referenced the fact that the case was set for jury
trial on February 10. The trial judge stated that she could “distinctly remember” that, at the court
appearance on January 21, she had said to one of the defendant’s attorneys, Arnold Landis, that
the case was going to jury trial on February 10 and that it would begin with motions in limine and
a pretrial conference. The court also stated later in the hearing that the court’s clerk had also
recently had a discussion with a different attorney from Landis’s law firm about the fact that,
notwithstanding the presiding judge’s order that the case had been put on the trial-setting call for
February 20, the case was still set for jury trial on February 10. The trial judge stated that it should
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be “no surprise” to the defendant’s attorneys that the case was set for trial that day.
¶ 16 The defendant’s attorneys next informed the court that the defendant’s expert witness, Neil
Renzi, was out of town that day and requested that the trial therefore be continued to a date when
Renzi was available. The trial court denied the defendant’s request for a continuance. The court
clarified with the defendant’s attorney that the reason Renzi was out of town was not because of a
situation such as a family emergency or trip for which he had purchased nonrefundable tickets.
The trial court stated that it did not understand why the defendant’s attorneys had not anticipated
having Renzi present, as they should have known the case was set for trial that day.
¶ 17 Thereafter both parties agreed to waive a jury, and the case proceeded immediately to a bench
trial. Solano testified as the only witness. Prior to Solano’s testimony, the defendant’s attorney
objected and moved that his testimony be disallowed because of his use of the date of filing the
complaint, not the date of taking, as the valuation date. The trial court overruled the objection,
reiterating that it had never had before it a properly supported motion under section 10-5-60 to
declare a valuation date different than the date of the filing of the complaint.
¶ 18 Solano proceeded to testify that he had valued the subject property as of August 25, 2015. He
testified that he physically inspected it in August 2016 and that its highest and best use was as a
commercial property. He reviewed six property sales that he considered to be comparable sales of
commercial property in the area. Based on his analysis of the subject property and of the six
comparable sales, he expressed the conclusion that the subject property’s value was $870,000. The
defendant’s attorney cross-examined Solano regarding additional sales that he did not include as
part of his analysis into the valuation of the subject property. There was no testimony or cross-
examination concerning any change in the subject property’s value between August 25, 2015, and
November 19, 2015.
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¶ 19 On February 25, 2020, the trial court entered a final judgment order that, among other things,
determined that $870,000 was the full and final just compensation for fee simple acquisition of the
subject property as of August 25, 2015.
¶ 20 On March 26, 2020, the defendant filed a posttrial motion. That motion asserted that the trial
court had erred by denying the motion to bar testimony of the Toll Highway Authority’s expert
valuation witnesses, based upon Solano’s use of the date of filing and not the date of taking as the
valuation date. The motion also argued that the trial court had abused its discretion by refusing
continue the trial date, due to the ambiguity of the orders setting the case for trial that day and the
prejudice to the defendant of having to proceed to trial without its expert witness.
¶ 21 On June 12, 2020, the trial court entered a written order denying the defendant’s posttrial
motion. The court reiterated that the reason the motion to bar witnesses had been denied was
because it was untimely and had been filed without leave. The court noted that the defendant had
nevertheless raised an objection to Solano’s testimony during trial, based on his use of the date of
filing and not the date of taking. The trial court stated that it was not persuaded that it had erred in
overruling the objection and that the defendant was merely rehashing the same arguments it had
made previously. As to the denial of a continuance, the trial court found that, regardless of any
new evidence presented about why Renzi was out of town on the day of trial, the defendant had
failed to provide the court with any information as to any diligence that had been exercised to
ensure that the defendant’s sole witness was present at the trial. Finally, the trial court found that
the record was “replete with references and orders related to the February 10, 2020 trial date” and
that thus there should have been no confusion about whether the case was set for trial that day.
¶ 22 II. ANALYSIS
¶ 23 A. Valuation Date
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¶ 24 The defendant’s first argument on appeal is that the proper date that should have been used
for determining just compensation for the taking of the subject property was the date of taking, not
the date of filing the complaint for condemnation. The defendant asserts that the trial court erred
by not applying this rule when it refused to consider the defendant’s motion to bar witnesses whose
testimony was predicated on an improper valuation date, determined just compensation based on
the date of filing, and denied the defendant’s posttrial motion.
¶ 25 The Toll Highway Authority argues that we should affirm the trial court’s orders and
judgment on the basis that the defendant failed to raise this issue before the trial court in a timely
manner. It is clear from the trial court’s statements on the record that the reason it denied the
defendant’s motion to bar witnesses was the fact that the motion was not filed until two weeks
after the deadline that the trial court had set for the filing of motions in limine. The trial court also
stated that it was denying the motion because the defendant had filed it without first seeking leave
to file it late and because it was first presented on the day of trial.
¶ 26 Although the defendant’s motion was not titled as a motion in limine, a motion to exclude
allegedly improper opinion testimony by a witness is a classic example of a motion in limine. A
ruling on a motion in limine is within the discretion of the trial court, and a reviewing court will
not reverse it absent a clear abuse of that discretion. Popko v. Continental Casualty Co., 355 Ill.
App. 3d 257, 266 (2005) (citing People v. Owen, 299 Ill. App. 3d 818, 823 (1998)). A trial court’s
denial of a motion in limine on the basis that it was filed in an untimely manner after the deadline
set by court order is not an abuse of discretion, particularly when the motion is made on the day
of trial. Owen, 299 Ill. App. 3d at 824.
¶ 27 In this case, the order entered on January 21, 2020, stated that any motions in limine were to
be filed by January 24 and that any responses were to be filed and courtesy copies e-mailed to the
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court by January 31. The defendant’s motion to bar witnesses was not filed until February 7 or
presented until the day of trial on February 10. It was therefore untimely filed, and there was no
time for the Toll Highway Authority to file a written response. The defendant also filed the motion
without requesting leave to make an untimely filing. Based on these facts, the trial court was within
its discretion to deny the defendant’s motion to bar witnesses.
¶ 28 The defendant contends that, despite the trial court’s order denying the motion to bar
witnesses on grounds of timeliness, it nevertheless preserved review of the substantive issue of the
proper valuation date by objecting to Solano’s testimony at trial. The objection itself was necessary
to preserve review of the motion in limine that had been denied. Career Concepts, Inc. v. Synergy,
Inc., 372 Ill. App. 3d 395, 402 (2007) (because a trial court’s ruling on a motion in limine is subject
to reconsideration throughout a trial, the movant must object to the evidence when it is introduced
at trial to preserve the issue for appeal). However, we agree with the Toll Highway Authority that
the defendant’s raising of this objection during trial did not require the trial court to excuse the
defendant’s previous failure to comply with the deadline for filing motions in limine or its failure
to request leave to file its motion after the deadline. We find no error in the trial court’s overruling
of the objection.
¶ 29 Even if we considered the defendant’s arguments on the merits, though, we find no error
under the facts of this case in the trial court’s use of the date of filing the complaint as the valuation
date or its allowing of expert testimony premised on the use of this date. The defendant argues that
the holdings of Kirby, 467 U.S. 1, and Forest Preserve District, 2011 IL 110759, require that
property being taken in eminent domain proceedings be valued as of the date of taking, not the
date of filing. The defendant argues that the holding of Forest Preserve District “implicitly” or
“sub silentio invalidated” the requirement of section 10-5-60 of the Eminent Domain Act setting
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the valuation date as the date of filing a complaint for condemnation. 735 ILCS 30/10-5-60 (West
2020).
¶ 30 In eminent domain law, the “date of valuation” and the “date of taking” of a property are not
identical concepts. See Forest Preserve District, 2011 IL 110759, ¶¶ 39, 43. In Illinois, the date of
valuation is set by a statute, section 10-5-60 of the Eminent Domain Act, which provides that the
fair cash market value of a property in an eminent domain proceeding “shall be determined and
ascertained as of the date of filing the complaint to condemn.” 735 ILCS 30/10-5-60 (West 2020).
That statute also allows for exceptions to this rule in certain situations, by permitting a trial court
to declare a different valuation date. The range of permissible dates that may be declared depends
on whether or not the property is being acquired by use of the quick-take procedure of the Eminent
Domain Act (see id. § 20-5-5). Where (as in this case) property is being acquired by use of the
quick-take procedure and the trial commences more than two years after the date of the filing of
the complaint to condemn, “the court may, in the interest of justice and equity, declare a valuation
date no sooner than the date of filing the complaint to condemn and no later than the date on which
the condemning authority took title to the property.” Id. § 10-5-60(ii).
¶ 31 The importance of the “date of taking” in this context stems from the fifth amendment to the
United States Constitution, which prohibits private property from being “taken for public use,
without just compensation.” U.S. Const., amend. V. 1 The United States Supreme Court recognized
in Kirby that the owner of private property being taken “is constitutionally entitled to the fair
market value of its property on the date of the taking.” Kirby, 467 U.S. at 16. However, the Kirby
1 This clause is made applicable to the states through the fourteenth amendment. Murr v. Wisconsin, 582 U.S. ___, ___, 137 S. Ct. 1933, 1942 (2017); U.S. Const., amend. XIV. The Illinois Constitution likewise provides that private property shall not be taken or damaged for public use without just compensation as provided by law. Ill. Const. 1970, art. I, § 15.
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Court did not hold that determining a property’s value as of a date other than the date of taking is
unconstitutional. Instead, it held that “if the result” of the procedure used to determine a property’s
value “is to provide the owner substantially less than the fair market value of his property on the
date the [condemning authority] tenders payment, it violates the Fifth Amendment.” Id. at 17.
¶ 32 In Kirby, the federal government filed a condemnation action in 1978 to acquire land from a
manufacturer of forest products. Id. at 6-7. The procedure used in that case was a “straight[ ]
condemnation,” in which the value of the land being taken was determined by the trier of fact prior
to the time of the government’s final decision about whether to actually tender payment; only if
the government decided to tender payment did title and right to possession vest in it. Id. at 3-4.
The district court referred the matter to a special commission to ascertain the compensation due,
and a trial occurred before that commission in 1979. Id. at 7. After the commission entered a report
on its recommendation as to just compensation, both parties filed objections to it in district court,
and those objections were not resolved until 1981. Id. at 8. In 1982, the United States deposited
the amount of the judgment into the registry of the district court, at which time it acquired title to
the land. Id.
¶ 33 The Supreme Court took the case to resolve the issue of “the date on which the taking, in a
‘straight-condemnation’ proceeding, should be deemed to occur” and whether the government was
obligated to pay interest. Id. at 9. The Court recognized its earlier holding that, “ ‘[u]nless a taking
has occurred previously in actuality or by a statutory provision …, we are of the view that the
taking in a condemnation suit under this statute takes place upon the payment of the money award
by the condemnor.’ ” Id. at 11 (quoting Danforth v. United States, 308 U.S. 271, 284 (1939)). It
recognized the rule that title does not pass until compensation has been ascertained and paid. Id.
at 12. Thus, the Court held that the date of “taking” in the case before it was in 1982, when the
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government tendered payment and acquired title to the property. Id. at 16.
¶ 34 The Court went on to address whether the award itself satisfied the requirements of the fifth
amendment, recognizing in doing so that the owner of land taken is “constitutionally entitled to
the fair market value of its property on the date of taking.” Id. The landowner’s argument was that
it was being denied its right to just compensation to the extent that it was only receiving the value
of the land as of the time of trial in 1979, not the value as of the date of taking in 1982. Id. The
government argued that it was imperative that the trier of fact be given a fixed date of valuation in
a condemnation case and that, as of the time of trial, the date upon which the government will
ultimately pay for the property is unknown and cannot feasibly be used as the date of valuation.
Id. at 16-17. The Court went on to hold, though, that “[h]owever reasonable it may be to designate
the date of trial as the date of valuation, if the result of that approach is to provide the owner
substantially less than the fair market value of his property on the date the United States tenders
payment, it violates the Fifth Amendment.” Id. at 17.
¶ 35 Notably, the Court stated nothing that would indicate that the valuation procedure in the case
before it, which had valued the property as of the time of trial, was constitutionally infirm. Rather,
it identified that the solution to the problem was having “a procedure for modifying a
condemnation award when there is a substantial delay between the date of valuation and the date
the judgment is paid, during which time the value of the land changes materially.” Id. at 17-18.
The Court recognized that a posttrial motion for relief from the judgment under Federal Rule of
Civil Procedure 60(b) would be such a procedure and that the parties would be limited to presenting
“evidence and arguments on the issue of how the market value of the property altered between [the
date of valuation] and the date on which the judgment was paid by the Government.” Id. at 18.
¶ 36 In Forest Preserve District, 2011 IL 110759, ¶ 2, the Illinois Supreme Court considered
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whether the date of taking under Illinois law was the statutory date of valuation (i.e., the date of
filing the complaint) or the date that the condemning authority was given title and the right to
possess the property, and whether the fifth amendment as interpreted by Kirby required a hearing
to determine if the property’s value had materially changed since the date of the complaint’s filing.
The case involved a situation in which a complaint for condemnation had been filed in 1999, the
quick-take procedure was not employed, and the case did not go to trial until 2007. Id. ¶ 1. At the
time of the complaint’s filing, section 7-121 of the Eminent Domain Act set the date of filing the
complaint as the valuation date for purposes of determining just compensation, and it provided no
authorization for modifying that valuation date. Id. (citing 735 ILCS 5/7-121 (West 1998)).
¶ 37 Four months prior to the trial, the defendant landowners filed a motion asking the trial court
to schedule a posttrial evidentiary hearing as contemplated by Kirby. Id. ¶ 9. They alleged that the
value of the land at issue had substantially increased in value since 1999 and that, to be afforded
their constitutional right to just compensation, a posttrial hearing was necessary to determine
whether the value of the subject property had materially changed between 1999 and whatever date
that the amount of the condemnation award was eventually placed into deposit following the trial.
Id. They argued that, while then-section 7-121 mandated valuation as of the date of filing, the
constitution requires that just compensation be measured as of the date of taking, which is the date
that the government deposits the amount of the jury award. Id. ¶ 10. They argued that Kirby
provided “a remedy for the problem by allowing for a posttrial hearing to modify the value awarded
if a substantial delay has caused a material change in the value of the land.” Id. The trial court
denied the defendants’ motion. Id. ¶ 11.
¶ 38 The case proceeded to trial, and the jury entered a verdict determining the fair market value
of the property as of 1999. Id. ¶ 12. The defendants then filed a posttrial motion, which again raised
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the constitutional argument that the just compensation clause of the fifth amendment as interpreted
in Kirby “required the trial court to hold a hearing to determine the appropriate adjustment to the
jury verdict to accommodate for the increase in value” between 1999 and 2007. Id. ¶ 13. They
attached to their motion an appraisal showing that the property’s value as of 2007, when the Forest
Preserve District deposited the amount of the jury verdict, was almost $15 million more than the
jury’s determination of its 1999 valuation. Id. The trial court denied the posttrial motion. Id.
¶ 39 The defendants appealed, and the appellate court held that a posttrial evidentiary hearing was
required to determine whether “ ‘application of section 7-121 did not provide just compensation
in this case.’ ” Id. ¶ 16 (quoting Forest Preserve District of Du Page County v. First National Bank
of Franklin Park, 401 Ill. App. 3d 966, 1004 (2010)). The appellate court vacated the verdict
valuing the property, subject to possible reinstatement following the hearing on just compensation
on remand. Id. ¶ 16 (citing Forest Preserve District, 401 Ill. App. 3d at 1006). The supreme court
allowed the petition for leave to appeal, and it addressed “whether the appellate court correctly
applied Kirby to order a hearing on remand to determine if the property has materially increased
in value, and if so, to hold another jury trial on valuation.” Id. ¶ 34. After discussing the facts and
analysis of Kirby, the supreme court turned to the question of whether, under Illinois law, the date
of taking was a date different than the date of filing the complaint, since no “Kirby problem” would
arise if the dates were the same. Id. ¶ 39. However, the court held they were not the same date. It
held that “a taking in Illinois for the purposes of applying Kirby occurs on the date that the
government (1) deposits the amount of compensation that has been ascertained and awarded, and
(2) acquires title and the right to possess the property.” (Emphasis in original.) Id. ¶ 40.
¶ 40 Notably, however, the supreme court in Forest Preserve District did not hold that then-
section 7-121, which mandated that the valuation date was the date of filing the complaint, was
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unconstitutional. Rather, the supreme court affirmed the appellate court’s vacating of the jury’s
verdict as to the value of the property, subject to a possible reinstatement “following a hearing on
just compensation using the current value of the property.” Id. ¶ 70.
¶ 41 We find no support for the defendant’s argument that Forest Preserve District implicitly or
“sub silentio” invalidated section 10-5-60 of the Eminent Domain Act (735 ILCS 30/10-5-60
(West 2020)). As stated above, neither Kirby nor Forest Preserve District held that the procedures
used in those cases for valuing the property taken were unconstitutional, even though the
procedures in both cases valued property at a time other than the date of taking. Rather, those cases
recognized that there must be some process or procedure to address the situation in which the value
of land changes materially between the date of valuation and the date of taking, to protect a
landowner’s constitutional right to receive the fair market value as of the date of taking. Kirby,
467 U.S. at 16-18 (solution to the problem is a “procedure for modifying a condemnation award
when there is a substantial delay between the date of valuation and the date the judgment is paid,
during which time the value of the land changes materially”); Forest Preserve District, 2011 IL
110759, ¶¶ 16, 70 (remanding for posttrial evidentiary hearing on whether valuation as of date of
filing complaint did not provide just compensation).
¶ 42 Here, we believe that section 10-5-60 of the Eminent Domain Act provides a procedure for
addressing these constitutional concerns. 735 ILCS 30/10-5-60 (West 2020). This statute became
effective in 2007 and replaced section 7-121 of the Eminent Domain Act (735 ILCS 5/7-121 (West
1998)), which was the operative valuation statute in Forest Preserve District. See Pub. Act 94-
1055, §§ 10-5-60, 95-1-5 (eff. Jan. 1, 2007) (repealing 735 ILCS 5/art. VII and recodifying
Eminent Domain Act, as amended, as art. X). As discussed above, section 10-5-60 retains the rule
that the date of valuation of property being taken is “the date of filing the complaint to condemn,”
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but it allows the trial court to declare a different valuation date “in the interest of justice and
equity.” 735 ILCS 30/10-5-60 (West 2020). In the case of property being acquired under quick-
take provisions, if the trial commences more than two years after filing the complaint, then the
statute allows the trial court to declare a valuation date as late as “the date on which the
condemning authority took title to the property.” Id. § 10-5-60(ii). Because title to a property does
not vest in a condemning authority until the trial court makes a preliminary finding as to just
compensation and that amount is deposited with the county treasurer (id. § 20-5-15(a)), section
10-5-60(ii) effectively contemplates that a trial court may declare the date of taking to be the date
of valuation in circumstances where justice and equity warrant this result. See Forest Preserve
District, 2011 IL 110759, ¶ 40 (date of taking is when condemning authority (1) deposits the
amount of compensation that has been ascertained and awarded and (2) acquires title and the right
to possess the property). Thus, section 10-5-60 allows the necessary flexibility to protect a
landowner’s constitutional rights in a situation where valuing property as of the date of filing the
complaint might not reflect just compensation as of the date of taking.
¶ 43 However, as the trial court noted several times during the argument on this matter, no party
ever brought a motion under section 10-5-60(ii) seeking to have the trial court declare a date of
valuation that was different than the date of filing the complaint for condemnation. The court also
noted that there had been no evidence put before it that the value of the subject property had
materially changed in the three months between August 25, 2015, and November 19, 2015. Our
review of the record confirms that there was never any evidence presented prior to trial, at the trial
itself, or in a posttrial motion that would suggest that the value of the subject property was different
as of these two dates. We believe that such evidence is necessary, either to show why declaring a
valuation date other than the date of filing was in “the interest of justice and equity” (735 ILCS
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30/10-5-60(ii) (West 2020)) or why determining value as of the date of filing deprived the
defendant of its constitutional right to just compensation. Because the defendant never sought to
make use of the statutory provision that would have permitted the trial court to declare a valuation
date different than the date of filing and because there was no evidence of any change in the value
of the subject property in the three months between the date of filing and the date of taking, we
find no error on the part of the trial court in using the date of filing the complaint as the date of
valuation in this case.
¶ 44 Furthermore, we reject the defendant’s assertion that multiple courts have recognized that
“the ‘date of filing’ rule has been overruled by the ‘date of taking’ rule.” The defendant cites one
of these cases, BNSF Ry. Co. v. Grohne, 2019 IL App (3d) 180063, ¶ 84, for its statement that an
owner of land taken is “entitled to just compensation valued on the day of the taking.” However,
this is not the same thing as stating the operative date for determining a property’s value in a
condemnation proceeding must be the date of taking, a distinction that we have discussed above.
Moreover, the court made this statement in the context of analyzing whether the evidence showed
that the subject property’s value had “substantially and materially” changed in the three years
between the filing of the complaint and the trial date, so as to justify the trial court’s granting of
the landowner’s motion to declare a valuation date shortly prior to the trial. Id. ¶¶ 78-84. The
appellate court noted that the evidence was that the value of one parcel of the subject property had
increased by 39% between the time of filing and trial and that the value of other parcels had
increased by 25%. Id. ¶ 84. Thus, after recognizing that the defendant landowner was entitled to
just compensation on the date of taking, the court held that the trial court had not abused its
discretion in granting a new valuation date closer to the trial. Id. In this case, by contrast, there was
no evidence of any change in the subject property’s value during the three months between the
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date of filing and the date of taking. For these reasons, we conclude that Grohne provides no
support for the defendant’s arguments.
¶ 45 The defendant also cites an unpublished federal case, City of Joliet v. Mid-City National Bank
of Chicago, No. 05 C 6746, 2012 WL 5463792, *1-2 (N.D. Ill. Nov. 5, 2012), in which the federal
district court granted an unopposed motion in limine by the defendants to establish a valuation date
of 2012 in a case where the complaint had been filed in 2005. The court noted that 2012 would be
the earliest possible year in which the City of Joliet could take possession of and pay for the
property at issue. Id. at *1. In granting this unopposed motion, the district court engaged in no
detailed analysis of this issue. It stated, however, that in Forest Preserve District, the Illinois
Supreme Court had relied on Kirby and “struck down the ‘date of filing rule’ ” and in its place
“adopted a ‘date of taking rule,’ holding that ‘a taking in Illinois for the purposes of applying Kirby
occurs on the date that the government (1) deposits the amount of compensation that has been
ascertained and awarded, and (2) acquires title and the right to possess the property.’ ” (Emphasis
in original.) Id. (quoting Forest Preserve District, 2011 IL 110759, ¶ 40, and citing Kirby, 467
U.S. 1). The district court’s statement is not an accurate summary of the holding of Forest Preserve
District. As explained in detail above, the supreme court did not strike down the date-of-filing rule
or adopt a date-of-taking rule in its place. As a federal district court decision, especially an
unpublished one, City of Joliet is not precedential or binding authority on this court. Joseph T.
Ryerson & Son, Inc. v. Travelers Indemnity Co. of America, 2020 IL App (1st) 182491, ¶ 57. We
reject the argument that City of Joliet requires the conclusion that the trial court erred by using the
date of filing the complaint as the date of valuation in this case or by allowing expert testimony
premised on this valuation date.
¶ 46 B. Continuance of Trial
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¶ 47 The defendant’s second argument on appeal is that the trial court abused its discretion when
it denied the defendant’s request to continue the jury trial to allow the defendant’s expert witness
on valuation, who was out of state, to return to Illinois to testify. According to the defendant, there
was confusion about the date on which the trial was set to begin, stemming from the fact that the
orders setting the case for trial on February 10, 2020, were “superseded” by two later orders: (1) the
January 21, 2020, order setting the hearing on any motions in limine and pretrial conference for
February 10, 2020, and (2) the January 29, 2020, order by the presiding judge of the law division
scheduling the case for trial-setting on February 20, 2020. Apparently as a result of this confusion
about the trial date, the defendant’s attorneys had not secured Renzi’s availability for trial starting
that day. The defendant argues that it was prejudiced by the refusal of a short continuance because
it was unable to present any evidence as to just compensation. It asserts there would have been no
prejudice to the Toll Highway Authority from the granting of a short continuance, as it had already
obtained title to and possession of the subject property and there was no indication that its own
witnesses would be unavailable in the future.
¶ 48 A litigant does not have an absolute right to a continuance, and the decision to grant or deny
a motion for continuance is vested in the sound discretion of the trial court. Grauer v. Clare Oaks,
2019 IL App (1st) 180835, ¶ 55. A party seeking a continuance once the case has reached the trial
stage must provide the court with an especially compelling reason for a continuance because of
the inconvenience caused to the other parties, attorneys, witnesses, and the court. Id. A reviewing
court will not reverse a trial court’s denial of a continuance unless it has resulted in a palpable
injustice or constitutes a manifest abuse of discretion. Id.
¶ 49 The trial court did not abuse its discretion in denying the defendant’s request to continue the
trial. Although we recognize that the defendant’s attorneys came into the case late, the appearance
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for attorney Landis’s law firm was nevertheless filed on December 12, 2019, nearly two months
prior to the trial date of February 10, 2020. Thus, it appears mostly to be the defendant’s attorneys’
own failure during that time to resolve any confusion they had about whether trial was set to
commence on February 10, which led to Renzi not being available for trial or his testimony
otherwise not being secured through an evidence deposition. As noted by the trial judge, the case
had been scheduled for trial that day since the previous July, and multiple court orders reference
the fact that trial was set for that day. On January 21, 2020, the court had granted a motion for a
jury view of the subject premises set for February 14, 2020, which should have signaled that the
case would be going to trial that week. In fact, the trial judge stated that she personally recalled
saying to attorney Landis on January 21 that the case was going to jury trial on February 10. The
judge further noted that, the week prior to February 10, the court’s clerk had spoken to an attorney
from Landis’s law firm about the presiding judge’s order scheduling the case for trial-setting on
February 20, and the court’s clerk had clarified that the case was going to jury trial on February
10. Also, the trial court had blocked all other matters from its calendar in order to conduct a jury
trial starting that day, and the Toll Highway Authority had its valuation witness available. Given
these reasons, we cannot say that the trial court’s denial of the defendant’s request for a
continuance of the trial was a manifest abuse of discretion.
¶ 50 III. CONCLUSION
¶ 51 For the reasons set forth above, the judgment of the trial court is affirmed.
¶ 52 Affirmed.
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No. 1-20-0813
Decision Under Review: Appeal from the Circuit Court of Cook County, No. 15-L- 50611; the Hon. Mary Colleen Roberts, Judge, presiding.
Attorneys Lenny D. Asaro and Ehren Fournier, of Faegre Drinker Biddle for & Reath LLP, of Chicago, for appellant. Appellant:
Attorneys Kwame Raoul, Attorney General, of Chicago (Jane Elinor Notz, for Solicitor General, and Christopher M.R. Turner, Assistant Appellee: Attorney General, of counsel), for appellee.
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