Enbridge Energy, Ltd. P'ship v. Fry
Decision Date | 06 April 2017 |
Docket Number | No. 3-15-0765,3-15-0765 |
Citation | 79 N.E.3d 246,2017 IL App (3d) 150765 |
Parties | ENBRIDGE ENERGY, LIMITED PARTNERSHIP, Plaintiff-Appellee, v. Rochelle M. FRY, Doug Riecke, John Riecke, Non-Record Claimants and Unknown Owners, Defendants-Appellants, and Bernadette A. Lamore, Anya M. Bauer, Non-Record Claimants and Unknown Owners, Defendants-Appellants. |
Court | United States Appellate Court of Illinois |
Thomas J. Pliura and Kathleen Chmielewski, of Law Office of Thomas J. Pliura, of LeRoy, for appellants.
John M. Spesia and Jacob E. Gancarczyk, of Spesia & Ayers, of Joliet, and Gerald A. Ambrose, of Sidley Austin LLP, of Chicago, for appellee.
¶ 1 Plaintiff, Enbridge Energy, Limited Partnership (Enbridge), filed a condemnation suit to obtain easement rights over certain farmland in Kankakee County so that it could build and operate a new underground pipeline. The landowner defendants opposed the suit for condemnation and filed a traverse and motion to dismiss (traverse motion), which the trial court denied. A jury trial was later held on the condemnation complaint, and a directed verdict was entered for Enbridge as to the amount of just compensation it was required to pay to the landowners. The landowners appeal, raising numerous issues. We affirm the trial court's judgment.
¶ 3 In April 2014, the Illinois Commerce Commission (ICC) granted Enbridge a certificate of public convenience and necessity to build and operate a new underground liquid petroleum pipeline from Pontiac, Illinois, to Griffith, Indiana. The new pipeline was to be known as "Line 78" and was to run across several properties in Livingston, Grundy, Kankakee, Will, and Cook Counties. For the most part, the path of Line 78 was to run parallel to and in close proximity with an existing Enbridge pipeline—Line 62. To obtain the necessary easement rights for Line 78, Enbridge was granted eminent domain authority by the ICC.
¶ 4 Prior to filing the instant lawsuit, Enbridge negotiated settlements with many of the landowners involved. As to those landowners with whom Enbridge could not reach an agreement on just compensation, Enbridge filed condemnation complaints in the trial court. The complaints (collectively referred to hereinafter as the complaint) were later consolidated. A copy of the ICC order was attached to the complaint. Three of the landowners who did not settle with Enbridge were named as defendants in the instant case. The dispute involved two pieces of farmland in Kankakee County—the Fry property, owned by Rochelle Fry, and the Bauer-Lamore property, owned by Anya Bauer and Bernadette Lamore. In the trial court, Fry, Bauer, and Lamore were represented by the same attorney, who now represents all three of them in this appeal.
¶ 5 In response to the condemnation complaint, Fry filed a traverse motion, alleging, among other things, that Enbridge lacked proper eminent domain authority, that there was no public use or necessity for the pipeline, and that Enbridge had failed to negotiate with the landowners in good faith prior to filing the condemnation suit. A similar traverse motion was later filed on behalf of Bauer and Lamore. Enbridge responded to Fry's traverse motion and attached to its response sworn testimony, affidavits, and business records. Those supporting documents established that Enbridge had made numerous attempts to communicate with the landowners about the easements and the pipeline project. Written offers for easement rights were made to Fry in August 2013 and April 2014 and to Bauer and Lamore in April 2013 and October 2013. The supporting documents also showed that in making its offers to the landowners, Enbridge had been advised by a licensed real estate appraiser who had conducted a land market study in the counties that were going to be impacted by the pipeline.
¶ 6 Unable to reach an agreement with the three landowners, Enbridge sent a final offer letter to Fry in May 2014 and to Bauer and Lamore in June 2014. The final offer letter was also sent to the landowners' attorney. In that final offer letter, Enbridge offered to pay Fry approximately $51,000 as just compensation and to pay Bauer and Lamore approximately $57,000. A receipt detailing the basis for the offer was provided to all three landowners and their attorney. The final offer was set to expire approximately 11 days from the date of the letter. In addition, Enbridge stated in the letter that it would file an eminent domain action if the final offer was not accepted. None of the three landowners or their attorney responded to those final offers.
¶ 7 A status hearing was held in September 2014, and Fry's traverse motion was set for hearing. When the landowners' attorney told the trial court that he would need some time for discovery, the trial judge responded that as a general matter, she did not postpone hearings on a motion to dismiss pending discovery but that if the issue arose, she "certainly [could] recess the hearing and give—allow time for discovery." In the 90 days between the filing of Fry's traverse motion and the date of the hearing on the motion, the landowners did not notice or subpoena any depositions, attempt to compel the appearance of any witnesses or the production of any documents at the hearing, or attempt to obtain any rulings from the trial court on any discovery matter related to the traverse motion.
¶ 8 In October 2014, a hearing was held on Fry's traverse motion. At the outset of the hearing, the trial judge acknowledged that a motion had been faxed to the court by the landowners' attorney requesting additional time to conduct discovery. The landowners' attorney indicated in court that he had filed a memorandum on the matter. Despite the request for more time, the trial court went forward with the hearing. The landowners' attorney stated that he was ready to call witnesses but did not seek to do so and did not disclose to the court who those witnesses were or what their testimony would be. Ultimately, although the trial court did not preclude either party from calling witnesses, no witnesses were presented by either side, and the trial court made its ruling on Fry's traverse motion based solely upon the pleadings and supporting documents. After considering those documents, researching the matter, and listening to the arguments of the attorneys, the trial court denied Fry's traverse motion, finding that there was nothing presented to challenge the rebuttable presumption of public use and necessity created by the ICC's order or any evidence presented to refute Enbridge's showing that its offer was made in good faith. Because Bauer and Lamore's traverse motion was essentially identical to that of Fry, the same ruling by the trial court was later applied to that motion as well.
¶ 9 With the traverse motion (collective reference to both motions) decided, the case proceeded toward a jury trial on the condemnation complaint and the issue of just compensation. In November 2014, the trial court entered a case management order, which required that all written discovery be completed by December 22, 2014, that all lay witness depositions be completed by January 20, 2015, that all controlled expert witness disclosures be completed by February 2, 2015, and that all controlled expert depositions be completed by February 20, 2015. The landowners subsequently filed a counterclaim for the damage that the pipeline would allegedly cause to the remainder property (the property outside of the easement area).
¶ 10 On January 7, 2015, the landowners' attorney tendered on a flash drive the work file of his proposed valuation expert, appraiser Michael McCann. The file contained approximately 7000 pages. Later that same month, landowner Bauer was deposed and testified that she did not have knowledge of the fair market value of the subject property and that she was not qualified to determine a diminution in value caused by the pipeline. Similarly, landowner Fry testified in her deposition that she had no opinions, numbers, or anything related to the fair market value of her property.
¶ 11 On February 2, 2015, within the timeframe set by the case management order, Enbridge disclosed their expert valuation witnesses, Joseph Batis and Andrew Brorsen. Brorsen had completed two written appraisal reports, one for each of the properties involved. Brorsen's reports contained his comparable-sales data and an explanation of his opinions as to valuation. Although depositions were taken of Enbridge's valuation experts, the landowners' attorney did not appear for those depositions.
¶ 12 The landowners disclosed their expert valuation witness, appraiser McCann, and tendered a brief summary of his appraisal opinions. McCann did not prepare a written appraisal report, and Enbridge did not take McCann's deposition. After the discovery deadline had passed, the landowners submitted supplemental opinions wherein they disclosed that the defendant landowners had belatedly developed opinions of value based on discussions with their attorney and research into environmental effects, stigma, and fear caused by pipelines.
¶ 13 In a letter dated February 2015, Enbridge's attorneys warned the landowners' attorney in a letter that the controlled expert witness disclosures and the work file of McCann failed to provide any explanation, analysis, or specificity regarding comparable sales. Attached to the letter were previously-served discovery requests to the landowners asking for the comparable-sales sheets. A second letter from Enbridge's attorneys, dated March 2015, requested that the complete work file of McCann be tendered in relation to the subject properties.
¶ 14 In April 2015, about 60 days after the discovery deadline had passed and without obtaining leave of court, the landowners issued a notice of discovery deposition for their controlled expert witness, appraiser McCann. The landowners' attorney, in a later proceeding,...
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