Ill. State Toll Highway Auth. v. Chi. Title Land Trust Co.
| Docket Number | 1-20-0813 |
| Decision Date | 14 December 2021 |
| Citation | 2021 IL App (1st) 200813,196 N.E.3d 557,458 Ill.Dec. 253 |
| Parties | The ILLINOIS STATE TOLL HIGHWAY AUTHORITY, Plaintiff-Appellee, v. CHICAGO TITLE LAND TRUST COMPANY, as Trustee Under Trust Agreement Dated September 30, 1996, Known as Trust No. 1103184; The Cook County Treasurer; Unknown Owners; and Nonrecord Claimants, Defendants (Chicago Title Land Trust Company, as Trustee Under Trust Agreement Dated September 30, 1996, Known as Trust No. 1103184, Defendant-Appellant). |
| Court | United States Appellate Court of Illinois |
Lenny D. Asaro and Ehren Fournier, of Faegre Drinker Biddle & Reath LLP, of Chicago, for appellant.
Kwame Raoul, Attorney General, of Chicago (Jane Elinor Notz, Solicitor General, and Christopher M.R. Turner, Assistant Attorney General, of counsel), for appellee.
¶ 1 Following a bench trial to determine final just compensation in an eminent domain proceeding, the defendant Chicago Title Land Trust Company, as trustee under a trust agreement dated September 30, 1996, known as trust No. 1103184 (defendant), appeals several rulings by the trial court pertaining to the operative date for valuing the property, along with its denial of the defendant's motion to continue the trial. We affirm the judgment of the trial court.
¶ 3 On August 25, 2015, the Illinois State Toll Highway Authority (Toll Highway Authority) filed a complaint for condemnation to acquire a 1.247-acre parcel of land at the corner of Elmhurst Road and Old Higgins Road in unincorporated Cook County, near Elk Grove Village, as part of its Elgin O'Hare Expressway Western Access Project. The defendant was the owner of the subject property. The Toll Highway Authority sought to acquire the subject property by use of the quick-take procedure of the Eminent Domain Act (735 ILCS 30/20-5-5 et seq. (West 2014)), which the trial court allowed and set the preliminary just compensation for the taking of the subject property at $800,000. After the Toll Highway Authority deposited that sum of preliminary just compensation with the county treasurer, the trial court entered an order on November 19, 2015, vesting the Toll Highway Authority with title to and right to immediate possession of the subject property.
¶ 4 The case proceeded to discovery for a final determination of just compensation for the taking. During discovery, three expert witnesses were disclosed to testify on issues of valuation and just compensation for the taking of the subject property. Two of these expert witnesses, Kenneth Polach and Nicholas Solano, were disclosed by the Toll Highway Authority. Although the full expert witness disclosures and reports are not included in the record on appeal, the defendant's brief indicates that it was disclosed in 2015 that Polach would testify that the value of the subject property was $800,000, and Solano was disclosed in 2019 to testify that its value was $870,000. The defendant disclosed in 2016 that Neil J. Renzi would testify that the value of the subject property was $2,715,000. All three expert witnesses used August 25, 2015, which was the date that the complaint had been filed, as the operative date for determining just compensation.
¶ 5 There are several court orders pertinent to the issues on appeal, specifically those setting deadlines for the filing of motions and those involving whether the case was set for jury trial on February 10, 2020. The first is an order entered on July 16, 2019, in which the trial court initially set the case for jury trial on January 13, 2020. The case was continued to July 31, 2019, on which date the trial court entered an order stating, "The trial date of January 13, 2020 is stricken and continued to February 10, 2020 at 9:30 AM in Room 2505." That order also set a pretrial date of February 6, 2020, "where parties will present their motions in limine. "
¶ 6 On September 17, 2019, the trial court entered an order allowing the two law firms that had been representing the defendant until this time to withdraw their appearances. On November 12, 2019, as no substitute appearance had been filed, the trial court entered an order of default against the defendant. On December 12, 2019, an appearance was filed on behalf of the defendant by the Law Office of Arnold H. Landis, P.C. A motion to vacate the default was also filed, which the trial court granted on December 26, 2019.
¶ 7 On January 9, 2020, which was a date previously set for hearing on a motion for summary judgment that had been filed while the defendant was in default, the trial court entered an order stating, "This matter is set for pretrial on 2/10/2020 9:30 am." On January 13, 2020, which would have been the originally set trial date, the trial court entered an order stating, "Matter stricken or withdrawn from call. 2/10/20 date to stand."
¶ 8 On January 17, 2020, the trial court entered an order that counsel for all parties were to appear on January 21, 2020, "to discuss deadlines for any pre-trial motions regarding the trial scheduled for February 10, 2020." Also on January 17, the Toll Highway Authority filed a motion to schedule a jury view of the subject property on February 14, 2020. On January 21, 2020, the trial court granted that motion and scheduled the jury viewing for February 14.
¶ 9 A second order was also entered on January 21, 2020, which set a deadline of January 24, 2020, for the filing of any motions in limine. It also required any responses and courtesy copies to be provided seven days thereafter. Finally, it provided that the hearing on any motions in limine and the pretrial conference was set for February 10, 2020.
¶ 10 On January 29, 2020, an order was entered in the case by the presiding judge of the law division, which stated that "the above case is scheduled to appear for trial setting in Courtroom 2005 on February 20, 2020." That order further stated, "All cases appearing for trial setting will be receiving trial dates and, as such, all parties should discuss trial dates to suggest to the court that are within six months."
¶ 11 On February 6, 2020, which was the date originally set for the presentation of motions in limine , the trial court entered an order stating, "Matter stricken or withdrawn from call; pretrial/trial date to stand on Feb. 10, 2020."
¶ 12 On February 7, 2020, an additional appearance on behalf of the defendant was filed by a second law firm, Neal & Leroy, LLC. Also on February 7, 2020, a motion was filed on behalf of the defendant seeking to bar the testimony of Pollock and Solano. The basis of the motion was that both of them had improperly used the date of filing the complaint (August 25, 2015) as the operative date for determining the amount of just compensation for the taking of the subject property. The defendant argued that it was constitutionally entitled to have compensation determined as of the date of "taking" and that in this case the date of taking was November 19, 2015, when the Toll Highway Authority had acquired title and the right to possession of the property after depositing the amount of preliminary just compensation awarded. The defendant argued that this result was required by Kirby Forest Industries, Inc. v. United States , 467 U.S. 1, 104 S.Ct. 2187, 81 L.Ed.2d 1 (1984), and Forest Preserve District of Du Page County v. First National Bank of Franklin Park , 2011 IL 110759, 356 Ill.Dec. 386, 961 N.E.2d 775, and that these cases had "invalidated" section 10-5-60 of the Eminent Domain Act (735 ILCS 30/10-5-60 (West 2020)), which establishes the valuation date as the date that a complaint to condemn is filed. It argued that an appraisal using a valuation date other than the date of taking is inadmissible and that, as a result of the Toll Highway Authority's failure to disclose an opinion using the constitutionally required valuation date, it had "no admissible evidence relating to the value of the subject property as of the constitutional date of taking."
¶ 13 On February 10, 2020, the parties appeared before the trial court, and the defendant's attorneys indicated their intention to present their motion to bar witnesses to the trial court. The attorney for the Toll Highway Authority objected to the court's consideration of the motion on the grounds that it was untimely, as the trial court's order of January 21, 2020, had required any motions in limine to be filed by January 24, 2020, and the defendant's motion had been filed after that date and without leave of court to do so. In response, the defendant's attorneys argued that the court should exercise its discretion to consider the motion based on the constitutional magnitude of the question involved. The trial court denied the defendant's motion based on the fact that it was untimely, had been filed without leave of court, and was first presented on the day of trial.
¶ 14 Thereafter, the defendant's attorneys indicated that the defendant may wish to seek certification of the question under Illinois Supreme Court Rule 308 (eff. Oct. 1, 2019). Further discussion then occurred about the fact that the motion that had been filed only sought to bar witness testimony based on the valuation date that the witnesses used and the fact that the basis for its denial was the untimeliness of its filing and presentment. The trial court clarified that the defendant's motion had not raised the substantive question of whether the subject property must be valued as of the date of "taking," as opposed to the date of filing the complaint. The court noted that section 10-5-60 provided a procedure by which a trial court could declare a valuation date that was different than the date of filing of the complaint but that no party had ever brought a motion under that statute requesting a valuation date different than the date of filing. The defendant's attorney responded that he was not asking the valuation date to be...
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