2024 IL App (1st) 220960-U
SIXTH DIVISION June 21, 2024
No. 1-22-0960
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT
PETEY’S TWO REAL ESTATE, et al., ) Appeal from the ) Circuit Court of Plaintiffs-Appellants, ) Cook County ) v. ) No. 2019 L 000983 ) THOMAS GOEDERT, ) The Honorable ) Jerry A. Esrig, Defendant-Appellee. ) Judge Presiding.
JUSTICE TAILOR delivered the judgment of the court. Presiding Justice Oden Johnson and Justice C.A. Walker concurred in the judgment.
ORDER
¶1 Held: The circuit court did not err in dismissing as factually and legally insufficient the third amended complaint for legal malpractice.
¶2 This legal malpractice action arises out of a condemnation action. Critical to an
understanding of why the plaintiffs-condemnees’ malpractice action against their attorney fails is
that their appraisal expert, in determining the value of their condemned property, violated the “unit
rule” by adding the value of the land to the value of the improvements. Our supreme court has
explained: No. 1-22-0960
“[T]he fair market value of improved property is not the sum of the value of the building
and the value of the land computed separately. For this purpose, the whole does not
necessarily equal the sum of the parts. The value of unimproved land, adaptable for any
use, may diminish, as land, when improved by the construction of a building and so
committed to a particular use. For similar reasons, the construction of a building may not
produce an increment in value equal to its cost, since the improvement may not be desirably
situated. To avoid misleading and confusing the jury, the evidence may properly be
confined to the value directly at issue, that is, the value of the improved land as a whole.”
Department of Public Works & Bldgs. v. Lotta, 27 Ill. 2d 455, 456-57 (1963).
The defendant attorneys could not have rescued the plaintiffs-condemnees from the consequences
of that fatal defect in their appraiser’s opinion of value, a value the plaintiffs-condemnees refused
to abandon in the condemnation proceeding. For this and other reasons, we affirm the decision of
the circuit court.
I. BACKGROUND
¶3 The plaintiffs-condemnees, who we refer to collectively as the Plaintiffs, are: (a) two
limited liability companies, Petey’s Two Real Estate LLC and Ashton Drive, LLC; (b) two land
trusts, Chicago Title Land Trust No. 996, and Chicago Title Land Trust No. 1147; and (c) Peter
Kattos. Peter Kattos and his wife are members of the limited liability companies, which in turn are
beneficiaries under the land trusts, which in turn hold title to real property located at the
intersection of U.S. Route 6 and U.S. Route 45 in Orland Park, Illinois. Kattos operates a business
on a portion of the property known as Petey’s II Restaurant and Lounge.
¶4 In 2006, the Illinois Department of Transportation (IDOT) brought a condemnation action
for a portion of the property owned by the Plaintiffs for a road improvement project. After a decade
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of litigation, the underlying court determined that the preliminary compensation paid by IDOT to
the Plaintiffs to acquire their property at the commencement of the case was far in excess of its
actual fair market value and, therefore, entered a judgment against the Plaintiffs in the amount of
the excess compensation plus interest. In the instant legal malpractice action, the Plaintiffs alleged
that their attorney Thomas Goedert (Goedert), and the firm he was employed by, Dommermuth,
Cobine, West, Gensler, Philipchuck, Corrigan & Bernhard, Ltd. (Dommermuth), were negligent
in their representation and that, as a proximate result, the Plaintiffs were damaged in the amount
of the excess compensation judgment against them. We summarize the condemnation proceedings
and allegations in the legal malpractice complaint below.
¶5 A. The IDOT Condemnation Action
¶6 On November 14, 2006, IDOT invoked its “quick-take” eminent domain power to acquire
fee simple title to approximately 2 acres of real property owned by Plaintiffs. One of the parcels
IDOT sought to acquire was improved with the restaurant, and would have required the restaurant
to be demolished or at least remodeled to reduce its footprint. Goedert, who at the time was
employed by the law firm Neal & Leroy, LLC, appeared on behalf of the Plaintiffs. On December
27, 2006, IDOT deposited $3,202,000 in preliminary compensation with the Cook County
Treasurer, which vested IDOT with title to the property. On January 18, 2007, the circuit court
entered an order allowing Marquette Bank, Neal & Leroy, LLC, Ashton Drive, LLC, and Petey’s
Two Real Estate, LLC to withdraw $3,102,000, leaving $100,000 on deposit with the Cook County
Treasurer. On April 4, 2008, after Kattos refused to demolish the restaurant, IDOT amended its
complaint to reduce the size of the taking, and on May 7, 2008, IDOT obtained an order vesting
title in accordance with the reduced taking.
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¶7 1. The Parties Disclose Property Valuation Experts
¶8 In September 2015, IDOT disclosed its appraisal expert Frank Lorenz, who valued the
taking at $1,520,000, with no damages to the remainder. Plaintiffs were still represented by
Goedert, who by that time was employed by Crane, Heyman, Simon, Welch & Clar (Crane).
Goedert, on behalf of the Plaintiffs, disclosed an expert appraiser, Joseph Thouvenell
(Thouvenell), who prepared a written appraisal of the subject property.
¶9 On November 18, 2015, the Honorable Alexander White, the judge hearing the
condemnation action, closed discovery except for expert depositions. After Thouvenell’s
deposition, the court allowed him to issue a final appraisal report. Thouvenell’s final appraisal
report, which was issued on December 15, 2015, concluded that the value of the taking exceeded
the $3.2 million in preliminary compensation paid by IDOT in 2006.
¶ 10 2. The Circuit Court Bars Plaintiffs’ Valuation Expert
¶ 11 On March 21, 2016, IDOT filed two motions in limine to bar Thouvenell’s testimony and
opinions. In its first motion, IDOT argued that Thouvenell’s valuation contained several flaws that
made his opinion inadmissible as a matter of law. IDOT’s second motion challenged six of the
seven comparable properties that Thouvenell relied on for his opinion of the value of the subject
property. IDOT did not challenge Thouvenell’s reliance on “comparable 5A”. On May 25, 2016,
Goedert, who was still employed by Crane, requested an extension of time to respond to both
motions. Goedert then requested four successive extensions of time to respond, on June 24, 2016,
August 25, 2016, October 17, 2016, and December 19, 2016. The first four requests were made by
Goedert while he was still employed by Crane. Only the last request for an extension, which was
filed on December 19, 2016, was made by Goedert after he became employed by Dommermuth.
Despite seeking five extensions of time, Goedert never filed a response to IDOT’s motions in
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limine. On March 30, 2017, Judge White granted IDOT’s motions in limine and barred
Thouvenell’s testimony.
¶ 12 On April 4, 2017, IDOT filed a motion for summary judgment on the basis that Plaintiffs
did not have a valuation expert. No written response was filed by the Plaintiffs.
¶ 13 3. Final Just Compensation
¶ 14 On April 27, 2017, Judge White granted IDOT’s motion for summary judgment,
determining that the value of IDOT’s taking was $1,520,000. He also ordered each party that took
a share of the initial compensation to repay IDOT their proportionate share of $1,582,000, which
represented the difference between the preliminary compensation disbursed by the Cook County
Treasurer ($3,102,000) and the final compensation determined by the court ($1,520,000).
Dommermuth filed a notice of appeal on behalf of the Plaintiffs from the judgment entered on
April 27, 2017, and then withdrew as the Plaintiffs’ attorney.
¶ 15 B. Underlying Appeals
¶ 16 Plaintiffs retained successor counsel, Figliulo & Silverman, P.C. (successor counsel), to
represent them in the appeal of the judgment entered on April 27, 2017. On appeal, Plaintiffs
argued that Judge White erred in granting IDOT’s motions in limine because errors in Thouvenell’s
appraisal went to the weight rather than the admissibility of his opinion, and because the sales
comparables that Thouvenell relied on were proper. Consequently, they argued that Judge White
also erred in granting summary judgment in favor of IDOT. In Dep’t of Transp. v. GreatBanc,
2018 IL App (1st) 171315, we affirmed Judge White’s decisions, finding that Plaintiffs had waived
any argument challenging the circuit court’s ruling granting IDOT’s motions in limine and motion
for summary judgment by failing to respond to them.
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¶ 17 During the pendency of the appeal, on IDOT’s motion, the circuit court confirmed the final
award of just compensation of $1,520,000, and also entered judgment in favor of IDOT and against
the Plaintiffs and Neal & Leroy in the amount of excess compensation plus both pre-judgment and
post-judgment interest.
¶ 18 Neal & Leroy then filed a petition to vacate the judgment against it on the basis it was not
a party and therefore should not be required to repay any of the initial compensation it received as
attorney’s fees. Judge White agreed and vacated the judgment against Neal & Leroy. IDOT
appealed. During the pendency of this appeal, IDOT filed in the circuit court a motion for entry of
judgment quantifying the amount of excess compensation that each of the Plaintiffs was required
to repay. Along with its motion, IDOT filed its “Submission Concerning Judgment Amounts and
Interest,” which stated:
“The Final Award of just compensation (the “Final Award”) was set at $1,520,000.00.
Because Marquette Bank held a note and mortgage on the property, it held a priority
position. Accordingly, Marquette is entitled to $319,054.26 of the Final Award,
Subtracting that amount from the Award leaves a balance of $1,200,945.74, which sum is
that portion of the Final Award to which Kattos is entitled. However, Kattos received
$2,498,877.79 from the preliminary award, which is $1,297,932.05 more than the Final
Award. Thus, the total amount of the refund Kattos owes to [IDOT] is $1,297,932.05.”
The circuit court granted IDOT’s motion and ordered the parties to submit additional briefing so
it could determine the amount of interest Plaintiffs owed IDOT. On October 24, 2018, after an
evidentiary hearing, the circuit court ruled that IDOT was entitled to pre-judgment and post-
judgment interest and entered judgment against the Plaintiffs and in favor of IDOT for
$1,297,932.05, the pro rata share of the excess compensation attributed to the Plaintiffs, pre-
6 No. 1-22-0960
judgment interest on the pro-rata share of the excess compensation in the amount of $174,127.41,
and the right to post-judgment interest from the date of entry of the order.
¶ 19 On appeal, we found that Neal & Leroy was not required to return any of the proceeds from
the preliminary compensation because the amount it received was on account of attorney’s fees
incurred during its representation of Plaintiffs. Dept. of Trans. v. GreatBanc, 2018 IL App (1st)
171393, ¶¶ 37-40. We also held that Judge White did not err in awarding pre-judgment interest on
the April 2017 judgment amount but did err in awarding interest on the additional judgment
amount entered on October 24, 2018. Dept. of Trans. v. GreatBanc, 2018 IL App (1st) 171393,
¶¶ 67-69.
¶ 20 C. The Legal Malpractice Claim
¶ 21 On January 29, 2019, Plaintiffs filed their complaint alleging legal malpractice against
Goedert and Dommermuth. Dommermuth moved to dismiss the complaint on April 2, 2019. On
May 23, 2019, Plaintiffs filed an amended complaint alleging Dommermuth and Goedert were
negligent in failing to respond to IDOT’s motions in limine and motion for summary judgment in
the condemnation action, failing to correct the errors in Thouvenell’s reports, and/or failing to
designate a different appraisal expert to testify. On February 28, 2020, the court granted
Dommermuth’s motion to dismiss the complaint only as to the claim brought by Peter Kattos,
individually.
¶ 22 On April 3, 2020, Dommermuth filed a third-party complaint for contribution against
Crane, alleging in part that because Dommermuth did not file its appearance in the condemnation
action until after the deadline to disclose a new expert or correct the errors in Thouvenell’s reports,
Dommermuth was unable to correct the errors in Thouvenell’s report and was left without any
viable bases to defend against IDOT’s motions in limine and motion for summary judgment.
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¶ 23 On August 17, 2020, Crane filed a motion for summary judgment on Dommermuth’s third-
party complaint arguing that the viability doctrine, also known as the successor counsel doctrine,
precluded liability. Under this doctrine, the “duty of care shifts from the original attorney to the
successor *** provided that the successor had the opportunity to undo or avert the harm
precipitated by the actions or omissions of the original attorney.” See Lopez v. Clifford Law
Offices, P.C., 262 Ill. App. 3d 969, 980 (2005). The circuit court granted Plaintiffs leave to file a
brief in connection with Crane’s motion for summary judgment to provide its position on the
viability doctrine because of the likelihood that the court’s ruling could affect the legal sufficiency
of the Plaintiffs’ complaint also. However, Plaintiffs did not file a brief. The circuit court also
ordered supplemental briefing to address whether there existed any argument that, if made, would
have defeated IDOT’s motions in limine and motion for summary judgment in the condemnation
action.
¶ 24 On April 23, 2021, the circuit court denied Crane’s motion for summary judgment on
Dommermuth’s third-party complaint for contribution, explaining:
“[I]t’s also clear to me from reading [Judge White’s] opinion, which I did, that he read the
briefs that were filed in support of the motion [in limine] critically, that it didn’t just simply
cut and paste. So, you know, those are – I start with those three things as established.
***
[N]othing has been presented to me that in any way remotely suggests that there was an
argument that could have been made that would have changed Judge White’s mind or that
convinces me that he was in any way wrong in what he did. I find that *** Thouvenell
clearly explained how he arrived at the opinion. And based on his own description, those
opinions were inadmissible as a matter of law. The failure to file a response to the motion
in limine, in my mind, was of no significance because no such filing could have changed
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the result. Thouvenell’s testimony clearly violated the unit rule. He did not value the parcel
as a whole. He determined that the highest and best use of the property was for commercial
development with the restaurant intact. But he formulated his opinion by valuing all of the
land as if it were vacant. Then he separately valued the restaurant. Then he added the value
of the restaurant to the value of the vacant land. Then he subtracted the underlying value
of the land as vacant on which the restaurant sits. This type of analysis is precisely what
the unit rule forbids. He never valued and conceded that he never valued the entire tract as
a whole with the restaurant on it. He also admitted that he did not conduct an appraisal of
the remainder after to determine its value. And I find that that also clearly violates Illinois
law.
Nothing that I’ve read suggests that a response to the motion in limine would have
convinced Judge White that there was an adequate foundation for [Thouvenell’s] opinions
even if the first two problems were not fatal, but they were. So for all of those reasons, I
find that the failure to file a response to the motion in limine had absolutely no bearing on
the ultimate outcome in this case.”
¶ 25 Plaintiffs then filed an amended complaint on June 1, 2021. Their Second Amended
Complaint (SAC) alleged that Dommermuth and Goedert were negligent:
“(a) by failing to understand Thouvenell’s Report;
(b) by failing to present an alternative Report disclosing the ‘value of the part
Taken’ theory;
(c) by failing to present any argument that the ‘value of the part taken’ was not addressed
in the motions in limine;
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(d) by failing to negotiate a settlement with IDOT before the adverse orders;
(f) by failing to respond to the Motion for Summary Judgment;
(e) by failing to respond to the Motions in Limine to Bar Thouvenell;
(g) by failing to warn plaintiffs of the likely adverse outcome, thereby allowing plaintiffs
to mitigate their damages.”
¶ 26 Dommermuth moved to dismiss the SAC. The court dismissed the SAC with leave to
replead the complaint but without leave to replead allegations relating to the admissibility of
Thouvenell’s testimony. The circuit court noted that Plaintiffs were given an opportunity to state
their position on the viability doctrine raised by Crane’s motion for summary judgment on
Dommermuth’s third party complaint, but failed to do so. The court explained:
“In my mind a party cannot sit idly by while another side moves for summary judgment
where they have an interest in that motion and fail to raise an argument. So I’m not going
to let you now sit and listen to the summary judgment arguments that were made before
me six months ago and now come back and tell me that there’s either evidence or an
argument that would undermine the ruling that I made before. (emphasis added).
What I want to do is lay this out for the Appellate Court so the Appellate Court understands
my ruling because my ruling is, No. 1, either this argument was made in front of me before
and I decided it, or it’s waived because I’ll come back to my first position, which is that an
interested party may not sit by while a motion for summary judgment is argued that affects
that party and fails to introduce evidence, which it has, which would refute the motion or
fail to argue an argument that would refute the motion. You just can’t do that. That’s No.
1.
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No. 2, I specifically gave this party an opportunity to raise any issues it wanted to raise,
and it didn’t do that. So even if there was a general principle that you can’t do this, there is
a specific part of this case that I gave you an opportunity to do it and you didn’t have the
opportunity. So that’s the first basis for my ruling.
The second basis for my ruling is I agree that this opinion was inadmissible for all of the
reasons I said originally, and I don’t believe that even if this argument had been made that
Judge White would have changed his mind. So in the alternative I reject the argument in
any event.”
¶ 27 Plaintiffs filed a Third Amended Complaint (TAC) on January 18, 2022. Count I of the
TAC included the allegations in the SAC related to the pre-trial motions. In Count II, Plaintiffs
alleged that Goedert and Dommermuth were negligent in that they:
“(a) Failed to advise Plaintiffs that Motions in Limine had been filed by IDOT that
reasonably challenged the admissibility of Plaintiffs’ expert Thouven[e]ll;
(b) Failed to advise Plaintiffs that IDOT’s two Motion in Limine had been granted;
(c) Failed to advise Plaintiffs that IDOT’s Motion for Summary Judgment setting just
compensation at $1,520,000 was unopposed and unopposable, and would result in an
overpayment of $1,582,000 in preliminary just compensation;
(d) Failed to advise Plaintiffs to refund IDOT $1,582,000 at anytime prior to April 27,
2017, after which point interest began to accrue; and
(e) Failed to provide Plaintiffs with sufficient advice about the status of the IDOT case so
that Plaintiffs could make informed decisions regarding its handling prior to January of
2018.”
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¶ 28 Dommermuth filed a motion to dismiss the TAC. At a hearing on the motion, the circuit
court had the following exchange with Plaintiffs’ attorney regarding Plaintiffs’ claim that they
would have acted differently had Dommermuth advised them adequately in the underlying case:
“THE COURT: So again, your clients after these lawyers were out of the picture they still
didn’t repay the money and stopped the interest from running. They still chose to hang onto
the money and allow the interest to continue to run long after these lawyers were out of the
picture.
[PLAINTIFFS’ COUNSEL]: That’s true. We are not seeking that interest from when they
took over.
THE COURT: It’s not a question of which interest you are seeking. It’s a question of
whether there’s any credibility to your claim that he would have acted differently.
[PLAINTIFFS’ COUNSEL]: Well, the point is, Judge, is based on the ruling of this court,
right, when you said that the [Thouvenell] report was never going to, you know, save the
day so to speak because it was fatally flawed, of course – it’s not a credibility issue, Judge.
It’s an issue of Mr. Kattos never had that information based on your ruling.
THE COURT: But they had new lawyers who could have done the same thing you claim
these lawyers should have done and put an end to it.
[F]irst of all, even on a 2-615 motion I am entitled to take into account matters of which I
can take judicial notice. And I can take judicial notice of what happened in this case from
the beginning until the end. And so I’ve got a pleading where you say we would have
acted differently had we known X, Y, Z. But you get new lawyers who come in and you
don’t act differently. You continue down the same path that you were on with these prior
12 No. 1-22-0960
lawyers. So there’s A, the last clear chance doctrine. These lawyers never cut off these
damages. Now I understand you’re claiming them from a limited time period. But even
so, even so, the evidence – the supposition that your clients would have done something
different is completely undermined by what they in fact did.
*** I don’t think that you have adequately pled that your clients would have done something
different. It’s plead in conclusory fashion. There’s no facts to support that conclusion. And
maybe that would or wouldn’t be adequate under other circumstances but it’s clearly not
adequate where we have a subsequent record of which the court can take judicial notice
that indicates that these people were bent on pursuing this appeal no matter what. And they
hired subsequent counsel who had the opportunity to tell them no or take a different course.
And they didn’t do it. They took the same course. So there’s nothing here that would
suggest other than a conclusion that you have pled without supporting facts that they would
have done anything differently.”
The circuit court granted Dommermuth’s motion and dismissed Plaintiffs’ TAC with prejudice.
Specifically, the order stated:
“1. Defendant Dommermuth’s Motion to Dismiss Plaintiffs’ Third Amended Complaint
is granted for the reasons stated on the record.
2. Plaintiffs’ Third Amended Complaint is dismissed, with prejudice.
3. This is a final order, it disposes of the case in its entirety and this matter is taken
off of the call.”
Plaintiffs timely filed this appeal.
13 No. 1-22-0960
¶ 29 II. ANALYSIS
¶ 30 Before turning to the merits, we must first determine if we have jurisdiction to consider
this appeal as a final order where the circuit court did not specifically dispose of the claim against
Goedert, who never appeared in the case. Although jurisdiction is not contested, we have an
independent duty to ascertain our jurisdiction and do so de novo. Mayle v. Urban Realty Works,
LLC, 2020 IL App. (1st) 191018, ¶ 36. We examine the language of a dismissal order to determine
whether the circuit court intended to dismiss the complaint in its entirety. Byer Clinic &
Chiropractic, LTD v. State Farm Fire & Gas. Co., 2013 IL App (1st) 113038 ¶ 14 (“The trial
court’s decisive word choice, ‘this case is dismissed,” *** is an all-encompassing order confirming
the court’s intention to dismiss the complaint in its entirety as to all named defendants[.]”) Here,
the circuit court made two conclusive statements showing an intent to dismiss the complaint as to
both Dommermuth and Goedert. First, the circuit court ordered that “Plaintiffs’ Third Amended
Complaint is dismissed, with prejudice.” Second, the circuit court stated that “This is a final order,
it disposes of the case in its entirety and this matter is taken off of the call.” When the circuit court
makes clear that it is dismissing a complaint in its entirety, the fact that some defendants were
unserved or otherwise did not participate in the proceedings does not preclude our jurisdiction. See
Merritt v. Randall Painting Co., 314 Ill. App. 3d 556, 559-60 (2000). In Merritt, we found that
because the plaintiff’s case against each of the defendants was under the theory of respondeat
superior the claims against each of the defendants—moving and unserved—were “one and the
same” and therefore the dismissal applied to all defendants as “unified tort-feasor[s].” Id. Here,
the claims against Goedert and Dommermuth are “one and the same” because they are predicated
on Goedert’s actions as an employee of Dommermuth, making them unified tort-feasors.
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Therefore, we conclude that the order dismissing the TAC is a final order and that we have
jurisdiction over this appeal under Illinois Supreme Court Rules 301 and 303. Id.
¶ 31 Our review of a dismissal pursuant to section 2-615 of the Civil Practice Law (735 ILCS
5/2-615 (West 2022)) is de novo. Fox v. Seiden, 382 Ill. App. 3d 288, 294 (2008). A section 2-615
motion challenges the legal sufficiency of the complaint. Id. A circuit court will only dismiss a
complaint pursuant to section 2-615 if it is clear that no set of facts can be proven that would entitle
the plaintiff to recovery. Id. On appeal we must determine whether the allegations in the complaint,
when construed liberally, taken as true, and viewed in the light most favorable to the plaintiff, are
sufficient to state a cause of action. Id.
¶ 32 To state a cause of action for legal malpractice, the complaint must allege facts to establish:
(1) the defendant owed the plaintiff a duty of due care arising from an attorney-client relationship;
(2) the defendant breached the duty; (3) the plaintiff suffered an injury in the form of actual
damages; and (4) the breach proximately caused the actual damages. Id. To satisfy the proximate
cause element of legal malpractice, the plaintiff must plead sufficient facts to establish that “but
for” the negligence of the attorney, the plaintiff would have successfully defended the underlying
suit. Id. at 299.
¶ 33 A. The Circuit Court Did not Err In Dismissing Count I Because Thouvenell’s Opinion
Was Inadmissible and Therefore Properly Barred
¶ 34 Plaintiffs first argue that circuit court erred in dismissing Count I of the TAC because had
Goedert filed a response to IDOT’s motions in limine and motion for summary judgment, Judge
White would have permitted Thouvenell to testify as to the “part taken” and “comparable 5A”
property, or at the very least allowed Plaintiffs to cross-examine the State’s valuation expert
witness.
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¶ 35 Before reaching the merits, we first address Dommermuth’s contention that Plaintiffs
waived by these arguments by failing to raise them before the circuit court. Forfeiture is the failure
to make the timely assertion of a right and waiver is the intentional relinquishment or abandonment
of a known right or privilege. See People v. Sophanavong, 2020 IL 124337 ¶ 20. Because there is
nothing in the record to suggest that Plaintiffs intentionally relinquished or abandoned the issue,
Dommermuth’s argument is actually one of forfeiture, not waiver. In undertaking a forfeiture
analysis, we take note that Plaintiffs did not advance any position when the court gave them an
opportunity to file a brief in response to Crane’s motion for summary judgment on Dommermuth’s
third-party complaint, which raised arguments about the part taken and “comparable 5A” that, if
successful, would have also defeated Plaintiffs’ claims against Goedert and Dommermuth. Nor
did Plaintiffs adopt Crane’s arguments. Nevertheless, having examined the record, we find that
Plaintiffs did not forfeit their argument pertaining to the value of the part taken. The allegations
appear in the SAC and are re-alleged for purposes of appeal in the TAC. We also find that Plaintiffs
did not forfeit their argument about comparable 5A. Although there are no allegations in any of
Plaintiffs’ complaints about comparable 5A specifically or about how it could have been utilized
to challenge the State’s expert’s valuation of the property, there are allegations about
Dommermuth failing to respond to the motions in limine generally, and the circuit court considered
the parties’ arguments about comparable 5A’s use during the hearing on the motion to dismiss the
SAC. See Dep’t of Transp. v. GreatBanc, 2018 IL App (1st) 171315, ¶ 15 (noting that the argument
was waived because there no written or oral objection). Thus, we do not consider the comparable
5A argument forfeited by Plaintiffs.
¶ 36 Turning to the merits, Plaintiffs argue that the circuit court failed to appreciate that IDOT
did not challenge Thouvenell’s opinion as to the part taken and the admissibility of comparable
16 No. 1-22-0960
5A. Thus, had Goedert responded to IDOT’s motions in limine or motion for summary judgment,
Plaintiffs could have presented evidence about the value of the part taken and comparable 5A to
challenge IDOT’s expert’s opinion of value. In other words, despite Judge White’s determination
that Thouvenell violated the unit rule and that his value of the whole was incorrect, Thouvenell
could still have opined about the value of the part taken. Moreover, Plaintiffs contend that
comparable 5A, which the State did not challenge, could have been used to defeat IDOT’s motion
for summary judgment.
¶ 37 Dommermuth advances several arguments in response. First, it argues that Plaintiffs are
mistaken that IDOT did not challenge Thouvenell’s opinion as to value of the part taken in its
motions in limine. Second, he argues that Plaintiffs incorrectly presume that merely challenging
the motions in limine would have resulted in Thouvenell’s opinion about the value of the part taken
being allowed into evidence. Specifically, he notes that Plaintiffs ignored that Thouvenell admitted
in his deposition that: “(1) he reached his Part Taken opinion by multiplying his opinion of $22
per square foot by the area of the taking; and (2) that his measurement of the area of the taking
was ‘a little higher’ than what it should have been.” Dommermuth relies on Soto v. Gayton, 313
Ill. App. 3d 137 (2000), for the proposition that Thouvenell’s latter admission alone would bar his
opinion of value of the part taken because it lacks proper foundation, and on IDOT v. Kelley, 352
Ill. App. 3d 278 (2004), for the proposition that it is improper to multiply the per square foot value
of the whole by the area of the part taken. Third, Dommermuth argues that Plaintiffs can only
speculate that Thouvenell’s opinion would not have been barred in its entirety. Finally, he notes
that Plaintiffs themselves generally acknowledge that nothing could have defeated IDOT’s
meritorious motions in limine.
17 No. 1-22-0960
¶ 38 In reply, Plaintiffs assert for the first time that proximate cause is an issue for the trier of
fact and may not be resolved as a matter of law.
¶ 39 We agree with Dommermuth that the circuit court properly dismissed count I of the TAC.
To prevail Goedert would have first had to overcome the inherent flaws in Thouvenell’s opinion
of value. However, Plaintiffs offer no argument that could have been advanced with respect to the
value of the part taken when it was based on the flawed value of the whole. It is undisputed that
Thouvenell violated the unit rule, which requires the property to be valued as a whole and not as
the sum of its parts. Dep’t of Pub. Works v. Lotta, 27 Ill. 2d 455, 456-57 (1963). An appraiser may
not value the whole property by determining the value of the land and then simply add the
contributory value of the building (Lotta, 27 Ill. 2d at 456-57), but Thouvenell did just that when
he added the value of the whole, $35,475,418, to the value of the restaurant building, $1,232,280.
Because his opinion of the value of the part taken was based entirely on the value of the whole,
and value of the whole admittedly violated the unit rule, Thouvenell’s opinion would not have
been admitted into evidence. To be sure, admitting Thouvenell’s opinion would “constitute
palpable and reversible error” because a “jury could be misled and confused.” Dept. of Transp. v.
White, 264 Ill. App. 3d 145, 150 (1994).
¶ 40 We also reject Plaintiffs’ argument that because IDOT’s motions in limine challenged only
Thouvenell’s opinion of the value of the property, he would have been able to testify as to his
opinion of the value of the part taken. But IDOT’s motions in limine sought to bar Thouvenell’s
opinions in their entirety: “Any one of these failures [asserted in IDOT’s motions in limine] would
render Thouvenell’s opinions void and inadmissible, but here Thouvenell violated every principle
of how to value property in an eminent domain case. This Court should bar his testimony in all
respects.” (emphasis added). And although IDOT did not necessarily argue that the value of the
18 No. 1-22-0960
part taken was incorrect, its argument about the value of the whole applied with equal force to the
value of the part taken. If the value of the part taken is based on the value of the whole, then the
value of the part taken is improperly valued where the whole is improperly valued. See Tri State
Park Dist. v. First Nat. Bank of Cicero, 33 Ill. App. 3d 348, 351 (1975) (Citing Sec. 300.44 of the
Illinois Pattern Jury Instructions: “In arriving at the fair cash market value of the property taken,
you should determine its value considered as a part of the whole tract before the taking and not its
value as a piece of property separate and disconnected from the rest of the tract.”).
¶ 41 Turning to “comparable 5A”, Plaintiffs argue that Goedert “could have raised this
unchallenged comparable and preserved Plaintiffs’ ability to cross-examine IDOT’s expert,”
thereby defeating IDOT’s summary judgment motion. In response, Dommermuth argues, inter
alia, that Plaintiffs cite no authority for the proposition that the sole “unchallenged” comparable
would be sufficient to raise a question of fact defeating summary judgment, Thouvenell’s
comparables that IDOT did challenge would have also resulted in “comparable 5A” being barred,
and finally if an appraiser relies on only one comparable property, then it must be a sale of the
subject property.
¶ 42 Judge White concluded that Thouvenell’s appraisal was “unreliable” in part because six
out of the seven comparables relied on by Thouvenell were 95% smaller in area than the subject
property, and critically, Thouvenell did not consider land sales in the area that were “clearly more
comparable” to the subject property. Moreover, Judge White noted that the appraisal was
significantly higher than previous offers for the subject property.
¶ 43 We agree with Dommermuth that no argument could have been raised response to IDOT’s
motions in limine that would have resulted in Judge White allowing comparable 5A into evidence.
Thouvenell could not have relied solely on comparable 5A as the basis for his opinion of value,
19 No. 1-22-0960
because the only instance in which an appraiser can rely on a single comparable sale is where that
sale is of the subject property. See Dep’t of Pub. Works v. Klehm, 6 Ill. App. 3d 752, 758 (1972).
“Comparable 5A” is not the subject property. Therefore, we find that the circuit court did not err
in dismissing with prejudice Plaintiffs’ allegations of legal malpractice in Count I pertaining to
Thouvenell’s opinion of value, either based on the value of the part taken or “comparable 5A.”
¶ 44 B. The Circuit Court Did Not Err in Rejecting Plaintiffs’ Allegations in Count II that They
Would Have Pursued a Different Course of Action Had Goedert Advised Them of the Circuit
Court’s Adverse Rulings and the Consequences Thereof.
¶ 45 Plaintiffs next argue that the circuit court erred in: 1) concluding as a matter of law that
their allegation in Count II, that they would have repaid IDOT the amount by which they were
overpaid before interest started to accrue had Goedert advised them about the merits of the case
and their potential liability for interest, was conclusory and belied by their own conduct; and 2)
rejecting their claim that they lost an opportunity to negotiate more favorable compensation and
reduce the amount of interest damages. Plaintiffs specifically take issue with the circuit court: 1)
taking judicial notice of the record in the underlying condemnation case, including court filings,
to conclude that Plaintiffs would not have acted differently because Plaintiffs appealed adverse
judgments even with successor counsel; and 2) reasoning that Plaintiffs’ allegations in that regard
were incredible. As for judicial notice, Plaintiffs assert that intent of a party is not a fact subject to
judicial notice nor is a credibility determination proper at the motion to dismiss stage of the
proceedings. In response, Dommermuth argues that Plaintiffs take the circuit court’s use of the
word “credibility” out of context and that the circuit court properly took judicial notice of
Plaintiffs’ court filings and appeals in the underlying case to find that Plaintiffs’ allegations were
conclusory.
20 No. 1-22-0960
¶ 46 Plaintiffs’ arguments fail for two reasons. First, Plaintiffs did not allege that IDOT would
have accepted repayment of $1.58 million or a lesser amount in settlement to resolve the matter
prior to the motion for summary judgment. Plaintiffs do not dispute this.
¶ 47 Second, in our review of the transcript of the hearing on the motion to dismiss the TAC in
full, we find the circuit court did not make a credibility determination but instead found that the
allegations in the TAC were conclusory when juxtaposed against the record of Plaintiffs’ course
of conduct in the condemnation case. The circuit court properly took judicial notice of Plaintiffs’
positions expressed in their court filings and appeals in the underlying action. See Cushing v.
Greyhound Lines, Inc., 2012 IL App (1st) 100768, ¶ 5 (taking judicial notice of appeals and record
of underlying case, including orders and pleadings). Pursuant to Illinois Rule of Evidence 201, a
fact is “not subject to reasonable dispute in that it is either (1) generally known within the territorial
jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources
whose accuracy cannot reasonably be questioned.” Ill. Evid. R 201 (b) (eff. January 1, 2011). It is
undisputed that Plaintiffs did in fact challenge the judgments against them on appeal, including
the amount of their pro rata share of the judgment that the circuit court imposed on it, as well as
in a subsequent appeal the amount of interest they owed. Count II of the TAC alleged that had
Goedert advised Plaintiffs to satisfy the judgment before it started to accrue interest, they would
have paid that amount and would not have pursued the matter further. Yet, as the circuit court
keenly observed, these allegations plainly conflict with what Plaintiffs actually did after retaining
successor counsel. While we agree with Plaintiffs that the circuit court must take the allegations
in the complaint in the light most favorable to them on a motion to dismiss, here the complaint
fails to allege any non-conclusory facts to support their contention that they would have pursued a
different course and strategy. Moreover, the conclusory facts that they do allege are undercut
21 No. 1-22-0960
entirely by the record, which demonstrates that Plaintiffs pursued a contrary course and strategy
once they engaged successor counsel. Thus, we find that Plaintiffs failed to state a claim for legal
malpractice in Count II of the TAC.
¶ 48 III. CONCLUSION
¶ 49 We agree with Dommermuth that this case admits of only one conclusion. Despite being
aware that the 2006 preliminary compensation was always going to be subject to proceedings to
determine final compensation, Plaintiffs litigated against IDOT for over a decade, never relenting
on their position that they were entitled to keep the entirety of the preliminary compensation even
after the size of the taking was reduced. Plaintiffs’ retained expert, Thouvenell, tried to match his
opinions with Plaintiffs’ desire to keep the entirety of the preliminary compensation. In so doing,
he rendered opinions and testimony that were without foundation. Without any opportunity to
correct Thouvenell’s errors, Goedert and Dommermuth could not have prevented the ultimate
outcome. Even after retaining successor counsel, Plaintiffs kept fighting in this Court and the
circuit court. During post-judgment proceedings, Plaintiffs made their position clear: IDOT’s
excess compensation judgment against them was too high and Plaintiffs should not be liable for
any pre- or post-judgment interest. When the circuit court rejected those positions, Plaintiffs turned
around and tried to argue that they never would have pursued that course of action had Goedert
and Dommermuth simply told them of the judgment earlier. However, in the face of Plaintiffs
undisputed course of conduct to the contrary, the circuit court properly rejected their claim.
¶ 50 For the foregoing reasons, the judgment of the circuit court is affirmed.
¶ 51 Affirmed.