DEPARTMENT OF TRANSP. EX REL. PEOPLE v. Hunziker
| Decision Date | 30 July 2003 |
| Docket Number | No. 3-02-0525, No. 3-02-0553. |
| Citation | 796 N.E.2d 122,277 Ill.Dec. 407,342 Ill. App.3d 588 |
| Parties | The DEPARTMENT OF TRANSPORTATION, for and in behalf of The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Dale K. HUNZIKER, as Trustee of the Barbara J. Hunziker Family Trust Dated October 10, 1999, Defendant-Appellant (Melinda Woskow Mayani, as Trustee of the Melinda Mayani Trust, established under the Last Will and Testament of Ann Woskow dated April 9, 2001; Burger King Corporation, a Florida Corporation; John Drury; Charles R. McLochlin; Norbert J. Lukas; Richard O. Deignan; Robert Deignan; Fredrick W. Kaufman; Robert S. Cohen; First American Bank, f/k/a Commercial National Bank as Trustee of Trust No. XXX-XXXXXXXX, as Trustee of Trust No. 66-7792-0 and as Trustee of Trust No. 66-8033, n/k/a National City, a Banking Corporation; TPC-CHI, Inc., f/k/a Chart House, Inc., a Delaware Corporation; Talman Home Federal Savings and Loan Association of Illinois, n/k/a LaSalle Bank, N.A., a National Banking Association; Edward T. O'Connor, Peoria County Treasurer; and Unknown Owners and Non-Record Claimants, Defendants). The Department of Transportation, for and in behalf of The People of the State of Illinois, Plaintiff-Appellee, v. Dale K. Hunziker, as Trustee of the Barbara J. Hunziker Family Trust Dated October 10, 1999, Defendant-Appellant (A.A. Green, Trustee under Trust No. 66-7792-0; Denny's, Inc., a California Corporation; Central Dining, Inc., an Illinois Corporation; Melinda Woskow Mayani, as Trustee of the Melinda Mayani Trust, established under the Last Will and Testament of Ann Woskow dated April 9, 2001; Burger King Corporation, a Florida Corporation; John Drury; Charles R. McLochlin; Norbert J. Lukas; Richard O. Deignan; Robert Deignan; Fredrick W. Kaufman; Robert S. Cohen; First American Bank, f/k/a Commercial National Bank as Trustee of Trust No. XXX-XXXXXXXX, as Trustee of Trust No. 66-7792-0 and as Trustee of Trust No. 66-8033, n/k/a National City, a Banking Corporation; TPC-CHI, Inc., f/k/a Chart House, Inc., a Delaware Corporation; Talman Home Federal Savings and Loan Association of Illinois, n/k/a Lasalle Bank, N.A., a National Banking Association; Edward T. O'Connor, Peoria County Treasurer; Professional Realty Services, Ltd.; South Side Trust & Savings Bank of Peoria, a Banking Corporation; and Unknown Owners and Non-Record Claimants, Defendants). |
| Court | United States Appellate Court of Illinois |
Supplemental Opinion Upon Denial of Rehearing filed September 10, 2003.
Mark D. Walton (argued), Gregory A. Hunziker, Hunziker & Walton, L.L.C., Peoria, for Dale K. Hunziker.
James Ryan, Attorney General, Chicago, Gary E. Barnhart, Special Assistant Attorney
General (argued), Canton, Michael J. Luke, Senior Assistant Attorney General, Springfield, for IDOT.
Kevin W. Lyons, State's Attorney, Peoria, for Peoria County Treasurer.
Bagley & Miller, Pekin, for Central Dining, Inc.
Joseph B. VanFleet, Law Office of Joseph B. VanFleet, L.L.C., Peoria, for Melina Woscow Mayani, Trustee.
Roy G. Davis, Davis & Campbell, Peoria, for Drury Management, Inc.
Plaintiff Department of Transportation (the Department) filed complaints for condemnation of two contiguous parcels of property (the property) owned by defendant Dale Hunziker. The other defendants also have an ownership or other interest in the property. Hunziker filed a traverse and motion to dismiss each complaint which the trial courts denied. On appeal Hunziker contends that the Department was required to disclose the appraisal reports which it used to determine the amount of compensation offered for the property. We agree.
In February of 2002 the Department notified Hunziker that its plans to widen Interstate 74 made it necessary to acquire his property. A separate letter was sent for each parcel. The letters set forth the amount of compensation that had been established by the Department and included a document entitled "Basis for Computing Total Approved Compensation and Offer to Purchase" (the basis document). Because the information contained in the basis document is critical to our resolution of this case, the relevant parts of one of those documents is set forth below In response to the Department's offers, Hunziker requested copies of the appraisal reports on which the offers had been based. The department refused, stating that it was its policy not to release appraisals except in response to an appropriate discovery request. On May 9, 2002, the Department filed its complaints for condemnation, along with motions for immediate vesting of title under the "quick-take" provisions of the Eminent Domain Act (the Act). See 735 ILCS 5/7-103 (West 2002). Hunziker filed a traverse and motion to dismiss each case, along with a motion for expedited discovery. The discovery motion was granted and plaintiff thereafter furnished Hunziker with the appraisal reports for the property. Following a hearing on June 12, 2002, Hunziker's traverses and motions to dismiss were denied. In each case the trial judge found that plaintiff was not required to furnish Hunziker with copies of its appraisals during negotiations, although one judge noted his belief that plaintiff's actions "smack[ed] of arrogance" and were contrary to the spirit of sections 7-102 and 7-102.1 of the Act. 735 ILCS 5/7-102, 7-102.1 (West 2002). Hunziker now appeals, and we reverse.
The Department has raised the issue of this court's jurisdiction over this appeal in light of Southwestern Illinois Development Authority v. National City Environmental, L.L.C., 304 Ill.App.3d 542, 238 Ill.Dec. 99, 710 N.E.2d 896 (1999), aff'd, 199 Ill.2d 225, 263 Ill.Dec. 241, 768 N.E.2d 1 (2002). In Southwestern the fifth district appellate court held that the issue of whether the condemning authority had made a good faith attempt to negotiate could not be considered in an interlocutory appeal brought pursuant to Supreme Court Rule 307(a)(7) (166 Ill.2d R. 307(a)(7)) and section 7-104(b) of the Act (735 ILCS 5/7-104(b) (West 2002)). Southwestern relied on Southwestern Illinois Development Authority v. Vollman, 235 Ill.App.3d 32, 175 Ill.Dec. 683, 600 N.E.2d 926 (1992), which held that an interlocutory appeal pursuant to section 7-104 of the Act was limited to the three issues delineated in subsection 7-104(b), which states in part:
735 ILCS 5/7-104(b) (West 2002).
We believe that the Southwestern court construed subsection 7-104(b) too narrowly. One of the findings that is expressly appealable is whether the right of eminent domain is "being improperly exercised in the particular proceeding." 735 ILCS 5/7-104(b) (West 2002). Since good faith negotiation by the condemnor is a condition precedent to exercising that right (see Department of Transportation v. 151 Interstate Road Corp., 333 Ill. App.3d 821, 267 Ill.Dec. 566, 777 N.E.2d 369 (2002),appeal allowed, 202 Ill.2d 669, 272 Ill.Dec. 357, 787 N.E.2d 172 (2003) and cases cited therein), review of the good faith issue is proper as part of the larger issue of the propriety of exercising the power of eminent domain. 151 Interstate,333 Ill.App.3d 821,267 Ill.Dec. 566,777 N.E.2d 369. In the same manner, the question of whether the Department must...
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