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Dept. of Pub. Wrks. & Bldgs. v. Guerine

MAY 21, 1974.

THE DEPARTMENT OF PUBLIC WORKS AND BUILDINGS, PETITIONER-APPELLANT,

v.

MARGIE C. GUERINE ET AL., DEFENDANTS — (FRANK ALAMPRESE ET AL., DEFENDANTS-APPELLEES.)



APPEAL from the Circuit Court of Du Page County; the Hon. GEORGE W. UNVERZAGT, Judge, presiding.

MR. JUSTICE GUILD DELIVERED THE OPINION OF THE COURT:

Petitioner, Department of Public Works and Buildings, filed this condemnation proceeding to acquire certain property in an unincorporated area of Du Page County. The circuit court of Du Page County entered a judgment upon a jury verdict. Petitioner appeals from that judgment and from the trial judge's order denying the post trial motion to set aside the verdict and for a new trial.

Several issues have been presented for our determination. Firstly, whether it is proper for a condemning authority to call an expert appraisal witness to testify and to impart to the jury the fact that the witness had previously been employed by the property owners' attorney to appraise the subject property, and thereby implicitly reveal that the owners did not intend to call that appraisal witness as their witness. Secondly, whether a remark made by defendants' attorney during trial was prejudicial to the petitioner. And thirdly, whether the trial judge erred in refusing to instruct the jury with one of petitioner's tendered instructions.

Defendants' property is located along the south side of Lake Street (U.S. Route 20) and has a 260-foot frontage and a 150-foot depth. The easterly half of the property is improved with a brick industrial type building which was used for the sale and rental of heavy construction equipment. The westerly half of the property is vacant. For the purpose of widening Lake Street (U.S. Route 20), petitioner condemned a rectangular strip of defendants' property, designated as Parcel 23, consisting of a 260-foot frontage along Lake Street with a depth of 18 feet.

Petitioner's condemnation petition was filed on April 21, 1971, pursuant to section 4-501 of the Illinois Highway Code. (Ill. Rev. Stat. 1969, ch. 121, par. 4-501.) Upon petitioner's motion for immediate vesting of title under the quick-take provisions of the Eminent Domain Act (Ill. Rev. Stat. 1973, ch. 47, par. 2.1), an order was entered which preliminarily determined the just compensation for the acquisition of defendants' property to be $8,100. Thereafter defendants filed a cross petition wherein they sought damages for the alleged diminution in the value of the remainder of their property caused by the taking.

Prior to trial, defendants moved to divide and redesignate Parcel 23 into two parcels. Defendants argued that this was necessary because the evidence would illustrate that the highest and best use of the vacant westerly half of their property was for service station use, and that its value was greater than that of the easterly half. Accordingly, the court divided and redesignated the condemned 260-foot-by-18-foot strip as follows: Parcel 23 being the easterly 130 feet of the condemned strip, and Parcel 23 A being the westerly 130 feet of the strip.

The only issue at trial was the determination of the amount of just compensation due defendants for that portion of their property which was taken (Parcels 23 and 23A), and for the damage caused to the remainder of their property as a result of this taking. To establish these monetary amounts, defendants elicited testimony from three expert appraisers, in addition to two witnesses who testified as to comparable sales. Defendants' three appraisal witnesses valued Parcel 23 from a low of $5000 to a high of $5300; and they valued the damage caused to the remainder of defendants' property as a result of this taking from a low of $0 to a high of $8700. As to Parcel 23A, defendants' appraisal witnesses valued it from a low of $7600 to a high of $9100; and their testimony as to the damage caused to the remainder of defendants' property as a result of this taking ranged from a low of $14,100 to a high of $17,300.

Petitioner then introduced two expert appraisal witnesses who valued just compensation for Parcel 23 at $3500 and $4600; and they estimated the damage to the remainder of defendants' property as a result of this taking at $5500 and $0. These same appraisers value just compensation for the taking of Parcel 23A at $6400 and $3500. Both testified that there was no damage caused to the remainder of defendants' property as a result of this taking.

The jury found that the just compensation due defendants for the taking of Parcel 23 to be $4600, with $4500 due defendants for the damage caused to the remainder of their property as a result of petitioner's acquisition of Parcel 23. The jury also established just compensation for the taking of Parcel 23A to be $7600, and awarded $5000 to defendants for the damage caused to the remainder of their property as a result of petitioner's taking of Parcel 23A.

One of the expert appraisers called by petitioner was James Dunn who had previously been hired by defendants' attorney to appraise the subject property for the condemnation case. Prior to trial, however, defendants decided not to call Dunn in their behalf. Pursuant to defendants' motion in limine, the trial judge ruled that petitioner's attorney could not reveal to the jury that Dunn had previously been hired by defendants' attorney to appraise the property. The judge further ruled that petitioner's attorney could reveal, on direct examination of Dunn, that neither he nor the Department of Public Works and Buildings had ever hired Dunn to appraise the subject property, and could further reveal that the witness had been called to testify on behalf of the petitioner pursuant to a subpoena. Faced with this ruling, petitioner made an offer of proof, to which defendants' attorney stipulated, as to Dunn's previous employment relationship with defendants' attorney for the purposes of appraisal and consultation.

Petitioner contends that the trial judge erred in not allowing its trial counsel to reveal to the jury the fact that witness Dunn had previously been employed by defendant's attorney to appraise the subject property. Essentially petitioner argues that this fact is "both relevant and probative" in that it illustrates the "bias" of those expert appraisal witnesses actually utilized by defendants at trial.

Although this question has never before been directly presented to an Illinois court of review, this court has had an opportunity to briefly discuss this question, without deciding it. In Department of Business & Economic Development v. Schoppe (1971), 1 Ill. App.3d 313, 272 N.E.2d 696, we held that the fact that an expert appraisal witness had previously been employed by the landowners to appraise their property did not prevent the condemning authority from utilizing that expert appraiser as a witness in its behalf at trial. However, although not essential to its holding, this court stated that the condemning authority would not have been able to introduce the expert appraiser as a former appraiser of the land owners "because such would have no relevancy to the issues to be decided." 1 Ill. App.3d at 317, 272 N.E.2d at 699.

Since this question has now been directly presented we feel compelled to reconsider and expand upon what we said in Schoppe. The propriety of revealing to the jury the fact that a party to a condemnation case has not called one of the persons as a witness whom he had previously hired to appraise the subject property has been specifically decided by several jurisdictions, with a resulting split in authority.

In Arkansas State Highway Com. v. Phillips (1972), 252 Ark. 206, 478 S.W.2d 27, the majority of the Arkansas Supreme Court approved the trial judge's ruling which permitted the landowner to call as an appraisal witness a staff appraiser employed by the condemning authority; and to show through that witness's testimony that he had made an appraisal of the subject property for the condemning authority but was not being called as a witness in its behalf. In so holding, the Phillips court stated, "We can see no sound reason why the evidence as to failure of a party to produce an expert consulted by him cannot be shown by the witness rather than through the party himself or from other witness called by the party." (252 Ark. at 219, 478 S.W.2d at 33.) This holding of the Phillips ...


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