Dep't of Transp. v. Dalzell

• Decision Date: 31 January 2018
• Docket Number: No. 2–16–0911,2–16–0911
• Citation: 94 N.E.3d 1231,2018 IL App (2d) 160911
• Parties: The DEPARTMENT OF TRANSPORTATION, Plaintiff and Counterdefendant–Appellant, v. Darlene M. DALZELL, as Trustee Under Declaration of Trust Dated December 12, 1990; Ronald L. Dalzell, as Trustee Under Declaration of Trust Dated December 12, 1990; Unknown Owners; and Nonrecord Claimants, Defendants (Ronald L. Dalzell, as Trustee Under Declaration of Trust Dated December 12, 1990, Defendant and Counterplaintiff–Appellee).
• Court: United States Appellate Court of Illinois

2018 IL App (2d) 160911

94 N.E.3d 1231

The DEPARTMENT OF TRANSPORTATION, Plaintiff and Counterdefendant–Appellant,

v.Darlene M. DALZELL, as Trustee Under Declaration of Trust Dated December 12, 1990; Ronald L. Dalzell, as Trustee Under Declaration of Trust Dated December 12, 1990; Unknown Owners; and Nonrecord Claimants, Defendants

(Ronald L. Dalzell, as Trustee Under Declaration of Trust Dated December 12, 1990, Defendant and Counterplaintiff–Appellee).

No. 2–16–0911

Appellate Court of Illinois, Second District.

Opinion filed January 31, 2018

Lisa Madigan, Attorney General (Nadine J. Wichern, Assistant Attorney General, of counsel), and Todd L. Lindquist, Special Assistant Attorney General, both of Chicago, for appellant.

Bryan P. Lynch, of Law Office of Bryan P. Lynch, P.C., of Chicago, for appellees.

JUSTICE JORGENSEN delivered the judgment of the court, with opinion.

¶ 1 Plaintiff, the Illinois Department of Transportation (IDOT), brought a condemnation action under the Eminent Domain Act (Act) ( 735 ILCS 30/1–1–1 et seq. (West 2008) ) and the Illinois Highway Code ( 605 ILCS 5/4–501 et seq. (West 2008) ) to acquire property owned by defendants, Darlene M. and Ronald L. Dalzell, as trustees under a declaration of trust dated December 12, 1990.¹ Dalzell filed a counterclaim seeking compensation for damage to the remainder (i.e. , the part of his property not taken). After trial, the jury found that the just compensation due to Dalzell totaled $247,000, comprised of (1) $23,000 for the taking of parcel No. 1EA0014, (2) $220,000 for damage to the remainder, and (3) $4000 for damage to the property within and outside of a temporary-easement strip on parcel No. 1EA0014TE. The trial court denied IDOT's motion for a new trial.

¶ 2 IDOT appeals, first raising issues concerning the court's jurisdiction over certain claims for damages. Next, IDOT challenges numerous court rulings concerning the parties' motions in limine as well as its decisions to permit or restrict certain testimony, limit cross-examination of a witness, and refuse certain jury instructions. Finally, IDOT asserts that Dalzell's counsel's opening and closing statements constituted plain error. IDOT requests a new trial. For the following reasons, we affirm.

¶ 3 I. BACKGROUND

¶ 4 Dalzell owns property on the northeast corner of North Avenue (also known as Route 64) and Powis Road in West Chicago. Since 1985, Dalzell has operated thereon a business, On Site Storage, for public rental of parking areas and storage of steel containers (ranging approximately 20 to 40 feet in length). Drivers could originally access Dalzell's property via two driveways, one off North Avenue, which runs east-west, and the other off Powis Road, which runs north-south.

¶ 5 On December 14, 2010, to complete its public-works project of widening and resurfacing North Avenue, IDOT filed a complaint for condemnation of portions of Dalzell's land. Specifically, IDOT wished to acquire two things:

1. Fee-simple title to parcel No. 1EA0014. The parcel is roughly an L-shape, with the short arm near the southwest corner of the property (running parallel to North Avenue). The long arm extends along the west border of the property, on Powis Road. The area connecting the short arm to the long arm encompasses a triangular section of grass lawn. Included within the parcel taken, on the west border (or long arm), is a portion of the property's Powis Road driveway.

2. A temporary easement (for a period up to five years) on parcel No. 1EA0014TE. This easement is located directly east of the long arm of parcel No. 1EA0014, although it is shorter, and it includes a section of, and spans the width of, the Powis Road driveway.

¶ 6 Although slightly out of sequence chronologically, we note two additional aspects of the overall project to provide context for the issues and arguments. First, the project's expansion of North Avenue elevated the stretch of highway directly in front of the property's North Avenue driveway, and IDOT placed a concrete barrier there that closed that driveway. Second, a concrete median was ultimately placed in the middle of Powis Road such that the property's Powis Road driveway became only a right-turn-in, right-turn-out access point. Collectively, the closure of the North Avenue driveway and the median barrier on Powis Road prevent drivers from exiting the property onto North Avenue; rather, drivers must exit onto Powis Road and drive 3.5 miles to return to North Avenue.

¶ 7 A. Quick–Take Hearing

¶ 8 Shortly after filing its complaint, in January 2011, IDOT moved for immediate possession and use of the two parcels, i.e. , a "quick-take" motion under section 25–7–103.1 of the Act (735 ILCS 30/25–7–103.1 (West 2010) ), alleging that delay in acquiring the two parcels would set back the North Avenue improvement project. In response, Dalzell filed a "traverse and motion to dismiss," arguing, in part, that IDOT did not have the requisite authority to acquire the property, the taking was not necessary, and the taking exceeded IDOT's needs. An October 12, 2011, order reflects, however, that, "in consideration of the parties' agreement and the modification of the construction plans for Route 64, [Dalzell] withdraw[s] [his] Traverse and Motion to Dismiss." Thereafter, on November 4, 2011, the parties entered into a stipulation that acknowledged both IDOT's eminent-domain authority and the existence of reasonable necessity to take the property through "quick-take" proceedings. However, the parties agreed that their stipulation regarding the value of the two parcels would be "irrelevant to, separate from, independent of, and shall have no effect on, the issue of damages to the remainder due to the take."

¶ 9 Therefore, at the quick-take hearing, testimony was received concerning the value of the remainder. Various appraisers testified and, notably, all acknowledged that the project would result in the closure of the North Avenue driveway. IDOT's appraiser, Frances Lorenz, did not believe that the North Avenue driveway added value to the property and, thus, did not assess any reduction in value to the property from the driveway's closure. Lorenz explained:

"Q: You didn't give any compensation for the North Avenue driveway; correct?

A: That's correct.

Q: And why did you make reference to it in your report if you weren't giving any compensation to Mr. Dalzell?

A: I didn't think it was appropriate to ignore it. It was a part of the taking, part of the improvement , and I thought that it was important to disclose in my report what's going on." (Emphasis added.)

Dalzell's appraiser, Michael MaRous, did attribute the loss of the North Avenue driveway as an element of damages. He explained that the property would go from "two main driveways to one driveway that's far inferior." MaRous testified that, in the "before" state, both driveways were "absolutely" important to the property and that losing one driveway would be a material change to the site. MaRous testified that he knew of no appraisal practice that would ignore the closing of a driveway in a condemnation project. He explained that it is customary for any appraisal report to include the number of driveways or access points to the subject property. When asked why, in an appraisal concerning condemnation powers, he considers damages associated with closing a driveway, MaRous explained, "[b]ecause a driveway for most properties is a very important fact. It's kind of like the main artery into a property, and it's very critical and properties that have limited access generally have a direct reflection of a lower value."

¶ 10 A few years later, on July 28, 2014, the parties entered into a three-part stipulation. First, they agreed that, as of the date of valuation in this case (i.e. , December 14, 2010, when IDOT filed its condemnation complaint), the property had a right of access directly onto North Avenue. Second, they agreed that, as of the date of valuation, the "North Avenue driveway existed from North Avenue directly north to the subject property." Third, and most relevant, they agreed that "[b]oth parties may present evidence at trial as to the subject property's North Avenue driveway's value based upon any issue of fact except as to the legality or illegality of the driveway." (Emphases added.)

¶ 11 On December 3, 2014, Dalzell filed his counterclaim for damage to the remainder. The counterclaim noted that "the Remainder parcel is owned and used in common with the Part Taken and Easement Area" that IDOT acquired. It did not mention or specifically request damages for the closure of the North Avenue driveway.

¶ 12 B. IDOT's Motion in Limine No. 1: North Avenue Driveway

¶ 13 On March 4, 2016 (more than five years after the condemnation complaint was filed), IDOT filed numerous motions in limine , with motion No. 1 requesting that Dalzell's appraisers be barred from considering the closure of the North Avenue driveway as an element of damage to the remainder. IDOT argued that such testimony would be improper because the closure was not a direct and proximate result of the taking and, therefore, any claim for damages based on that closure must be brought in the Illinois Court of Claims, which has exclusive jurisdiction over all claims against the State for damages in any case sounding in tort, if such a case would lie against a private person in a civil suit. 705 ILCS 505/8(d) (West 2008). IDOT noted that the taking itself did not physically touch the North Avenue driveway and that the property's North Avenue access was instead altered by the overall construction project. IDOT argued that, "in order to claim damage to the remainder here as a result of the closure of the North Avenue access point in this circuit court action, the damage must be a direct and proximate result of the taking of parcel Nos. 1EA0014 and 1EA0014TE and not merely as a result of [IDOT's] total construction plan and construction of North Avenue or of construction in [the] general...