FOREST PRESERVE DIST. OF DU PAGE v. Miller

• Decision Date: 15 May 2003
• Docket Number: No. 2-02-0455.,2-02-0455.
• Citation: 273 Ill.Dec. 742,339 Ill. App.3d 244,789 N.E.2d 916
• Parties: FOREST PRESERVE DISTRICT OF DU PAGE COUNTY, Plaintiff-Appellant and Cross-Appellee, v. Jack C. MILLER and Unknown Owners, Defendants-Appellees and Cross-Appellants.
• Court: United States Appellate Court of Illinois

789 N.E.2d 916

339 Ill. App.3d 244

273 Ill.Dec. 742

FOREST PRESERVE DISTRICT OF DU PAGE COUNTY, Plaintiff-Appellant and Cross-Appellee, v. Jack C. MILLER and Unknown Owners, Defendants-Appellees and Cross-Appellants.

No. 2-02-0455.

Appellate Court of Illinois, Second District.

May 15, 2003.

Robert G. Black, Law Offices of Robert G. Black, Scott M. Day, Rachel K. Robert, Day & Robert, P.C., Naperville, for Forest Preserve District of Du Page County.

Michael C. Wiedel, Michael G. Philipp, Wiedell, Hudzik, Russ & Philipp, Downers Grove, for Jack C. Miller.

Justice GILLERAN JOHNSON delivered the opinion of the court:

The plaintiff, Forest Preserve District of Du Page County, appeals from the April 10, 2002, order of the circuit court of Du Page County dismissing its condemnation action. Originally, the trial court had found for the plaintiff and ordered that the condemnation of the subject parcel could proceed for $700,000. However, the trial court vacated that order and subsequently dismissed the condemnation action after finding that the plaintiff's enabling ordinance failed to reasonably describe the property to be condemned. The defendant, Jack Miller, cross-appeals from an order entered prior to the vacature and from several findings the trial court made during posttrial proceedings. We affirm.

On August 5, 1998, the plaintiff filed a complaint for condemnation, seeking to acquire a 35-acre parcel of property known as the Rodenburg Marsh, pursuant to the Downstate Forest Preserve District Act (70 ILCS 805/6 (West 1998)). The Rodenburg Marsh was owned entirely by the defendant. The plaintiff appended to its complaint Ordinance No. 98-322, which it had adopted on August 4, 1998. Ordinance No. 98-322 provided that the "Executive Director, his staff and the Forest Preserve District attorneys be, and hereby are, authorized to take the necessary steps, either by negotiation or condemnation, to acquire title to the real estate described in Exhibit A and depicted in Exhibit B attached hereto." Forest Preserve District of Du Page County, Ordinance No. 98-322 (eff. August 4, 1998). Exhibit A was a metes and bounds legal description. Exhibit B was a plat map. Exhibit B, the plat map, portrayed the entire 35 acres of the Rodenburg Marsh property. However, exhibit A, the metes and bounds legal description, left out a 2.3-acre portion of the Rodenburg Marsh property.

On October 1, 1998, upon discovery of the erroneous metes and bounds legal description, the plaintiff filed an amended complaint. The amended complaint mirrored the original complaint. Like the original complaint, attached to the amended complaint was Ordinance No. 98-322, which again provided that the "Executive Director, his staff and the Forest Preserve District attorneys be, and hereby are, authorized to take the necessary steps, either by negotiation or condemnation, to acquire title to the real estate described in Exhibit A and depicted in Exhibit B attached hereto." Forest Preserve District of Du Page County, Ordinance No. 98-322 (eff. August 4, 1998). Exhibit A was the same metes and bounds legal description that the plaintiff provided in its original complaint and exhibit B was the same plat map as provided in the original complaint. However, also appended to the amended complaint was an exhibit C. Exhibit C was a revised metes and bounds legal description which purportedly was consistent with the plat map and depicted the entire 35-acre parcel. The trial court accepted the amended complaint. The trial court ruled, however, that August 5, 1998, would remain the valuation date.

On December 9, 1998, the defendant filed his pro se appearance. On January 5, 1999, the plaintiff moved for a default judgment alleging that the defendant had failed to answer or otherwise plead to the amended complaint. The trial court subsequently ordered the defendant to file a traverse or counterclaim, should he so desire, by February 15, 1999. On February 16, 1999, the plaintiff filed a handwritten document. This document provided in full:

"I Jack Miller am filing [sic] this traverse/counterclaim formally objecting to the condemnation of my property at 7 N 601 Rodenburg Road Roselle Illinois by the Du Page County Forest Preserve."

The document was not accompanied by any notice of filing.

On March 24, 2000, the plaintiff filed a motion requesting the trial court to enter an order finding that the defendant had waived his ability to file a traverse due to his failure to timely file one. On May 30, 2000, the defendant filed a handwritten response to the plaintiff's motion. The defendant's response provided in relevant part:

"We just recently discovered, by reading the plaintiff's most recent filing that we still had not filed our traverse. We apologize to the court and to the plaintiff for any hardship this may have caused. * * * We respectfully ask to the court to accept our traverse, at this time, on this date May 30th, 2000.

TRAVERSE

I Jack Miller on this date May 30, 2000, formally object to the condemnation of my property at 7 N 601 Rodenburg Road by the Du Page County Forest Preserve."

On May 31, 2000, the trial court conducted a hearing. Following the hearing, the trial court found that the defendant had filed a general traverse, which challenged the condemnation action on two grounds: (1) a lack of good-faith negotiations and (2) the constitutionality of the enabling ordinance. However, the trial court denied the defendant's traverse on both grounds and set the matter for a March 19, 2001, trial on the underlying condemnation action.

The defendant failed to appear on March 19, 2001. However, the trial proceeded as scheduled. The plaintiff called David Phillips as its sole witness. Philips testified that he was a licensed appraiser. Philips performed an appraisal on the Rodenburg Marsh property. The Rodenburg Marsh property consisted of 35.5899 acres zoned for office research. The property had a wetlands area of 21.8338 acres and only 7 of the acres were buildable. The land was vacant, except for a single-family home on the southwest corner. The highest and best use for the buildable portion of the property would be single-family or multi-family residential units. In his opinion, the Rodenburg Marsh property was worth $700,000. After the plaintiff rested its case, the trial court ordered the appointment of a court expert, ordered that the expert be paid for by the plaintiff, and continued the matter.

On May 15, 2001, the trial court vacated its order appointing a court expert. It entered judgment for the plaintiff, setting just compensation for the Rodenburg Marsh property at $700,000. On June 11, 2001, the defendant, now represented by counsel, filed a posttrial motion. In that motion, the defendant argued, among other things, that (1) the plaintiff lacked the authority to acquire the Rodenburg Marsh property because the ordinance adopted by the district did not accurately describe the Rodenburg Marsh; and (2) the valuation date used at trial was incorrect.

On June 19, 2001, the plaintiff filed a motion to strike that portion of the defendant's posttrial motion challenging its enabling ordinance. In its motion to strike, the plaintiff argued that the defendant had waived this argument by not raising it earlier. Also on July 19, 2001, the plaintiff filed a response to the defendant's posttrial motion. In its response, the plaintiff argued that it was now authorized to condemn the Rodenburg Marsh property due to a recent ordinance that it had adopted on June 19, 2001. The plaintiff attached Ordinance No. 01-301 to its complaint. Ordinance No. 01-301 provided:

"[T]he legal description set forth in Exhibit C to the October 1, 1998 Amended Complaint is hereby ratified and reaffirmed as being the legal description that described the Rodenburg Marsh Parcel sought to be acquired from the inception by the District." Forest Preserve District of Du Page County, Ordinance No. 01-301 (eff. June 19, 2001).

On September 25, 2001, following a hearing, the trial court found that the valuation date used at trial was incorrect. It vacated its order of judgment for the plaintiff setting just compensation at $700,000. However, the trial court ruled that the incorrect valuation date in itself was not grounds to dismiss the condemnation suit. The trial court continued the matter for further hearings on the issue regarding the enabling ordinance.

On February 5, 2002, following a hearing, the trial court found that the ordinance did not authorize the condemnation of the entire 35-acre parcel. Specifically, the trial court ruled:

"The law is clear that the property to be condemned must be reasonably described in the enabling action of the condemnor, be it in an ordinance or resolution. * * *

* * *

In our case there was no enabling ordinance as to the property legally described in the amended complaint, and there is no showing of the Forest Preserve's right to condemn that parcel of property. * * *

* * *

I think that the Forest Preserve * * * filed an amended complaint to condemn a parcel of property which was different from and in excess of the parcel which the Forest Preserve passed an ordinance to condemn."

On April 10, 2002, the trial court entered an order dismissing the plaintiff's condemnation complaint. The plaintiff thereafter filed a timely notice of appeal. The defendant subsequently filed a timely notice of cross-appeal.

At the outset of the appeal, we note that the plaintiff has filed a motion requesting that we strike certain statements contained in the defendant's cross-reply brief for being inaccurate and unsupported by the record. See 177 Ill.2d Rs. 341(e)(6), (e)(7). Supreme Court Rule 341(e)(6) requires that the facts of the case should be stated accurately and fairly. 177 Ill.2d R. 341(e)(6). Supreme Court Rule 341(e)(7) requires that arguments should be supported by authority and appropriate references to the record. 177 Ill.2d R. 341(e)(7). After...