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Dept. of Transportation v. Bryant

OPINION FILED AUGUST 22, 1978.

THE DEPARTMENT OF TRANSPORTATION, PETITIONER-APPELLANT,

v.

CRYER E. BRYANT ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Grundy County; the Hon. ROBERT W. MALMQUIST, Judge, presiding.

MR. PRESIDING JUSTICE STOUDER DELIVERED THE OPINION OF THE COURT:

Rehearing denied September 28, 1978.

This is an eminent domain proceeding filed by the Department of Transportation of the State of Illinois to condemn a certain parcel of land owned by Cryer Bryant and Lorraine Bryant, his wife. After a jury trial judgment was entered for $29,500. The Department has appealed.

The property which is the subject of this action is a parcel located on Division Street in Morris, Illinois. It has a 60.41-foot frontage on Division Street, is 123 feet deep, and was improved with two cement house trailer pads.

On this appeal the Department argues, one, the court erred in denying petitioner's motion to limit valuation witnesses and prior pretrial disclosure of similar sales to be relied on; two, the trial court erred in denying petitioner's motion in limine to exclude any mention of an offer to purchase received by defendants; three, the trial court erred in granting defendants' motion in limine to exclude mention of the length of time the subject property had been zoned commercial; four, the court erred in giving defendants' special interrogatory and in modifying the award of the jury by virtue of the jury's answer to the special interrogatory.

With respect to the Department's first claim of error, it appears that on April 19, 1977, the Department moved to require all parties to complete their discovery before April 26, 1977. This motion was made after this case and several others had been placed on the May call. In particular, the motion requested that valuation witnesses be limited to those disclosed to the opposite party, together with their written appraisals, prior to April 26. The motion also requested that the use of similar sales which the parties or their appraisers intended to rely on be limited to those which had been disclosed and approved prior to such date. The court denied the motion.

• 1, 2 Although the Department urges the court's ruling was erroneous, nevertheless, it has not directed to our attention how the order of the court was unfairly prejudicial to the Department or how the presentation of the case was prejudiced by the order. As pointed out in the Illinois Institute of Continuing Legal Education Handbook on Illinois Eminent Domain Practice (1975), section 419:

"Fourteen days prior to trial, it is advisable to move to limit value opinion witnesses and similar sales to those which have been disclosed to date. The purpose is to avoid last minute `surprises,' and such motions are generally allowed. Thereafter, only the value witnesses whose names have been disclosed, and the similar sales which have been described, may be offered in evidence at the trial. The court still has discretion to admit additional evidence, but a positive and adequate showing of (1) good faith, (2) materiality, and (3) diligence would be required.

This is a valuable technique to bring discovery up to date. It is also useful to prevent abuse of the discovery process by withholding disclosure of material evidence until just before trial.

We believe the foregoing observations describe a practice which should be followed and that such a motion should be granted unless some reason for a contrary ruling is affirmatively shown. (Department of Transportation v. Prombo, 63 Ill. App.3d 407.) However, in the absence of any prejudice the error is harmless.

Next, the Department argues the court erred in permitting evidence of an offer to purchase the subject property made seven or eight years prior to the filing of the petition in this case.

Shortly before trial, the Department filed its motion in limine requesting that evidence of offers to purchase the subject property be excluded. During discovery it was revealed that an offer of purchase had been made to the present owners seven or eight years earlier, but had been refused. The court ruled that offers of purchase made within five years should be excluded because there were no such offers, but reserved its ruling on the offer made seven or eight years earlier.

During the presentation of the appellee's case, James Peacock, an attorney, and Cryer Bryant, one of the owners, testified that in 1968 or 1969 Peacock had offered to purchase the property in behalf of his client. Peacock's offer of $15,000 was declined. According to Peacock, the offer was made in behalf of an adjacent property owner who conducted a business on the abutting lot and who intended to use the subject property as a parking lot for his business. The Department objected to the evidence of this offer of purchase both because it was remote in point of time and because the "special value" to the offeror prevented such offer from having any relevance to fair cash value. The court overruled the Department's objections to this testimony.

• 3 The rule is well settled that sales of other property may be appropriately considered in determining the fair cash market value of property taken in an eminent domain proceeding. Consideration of other sales of property is one of the primary factors considered by an appraiser in arriving at values of other property. What effect sales of other property should have on establishing the value of a particular piece of property is a question of relevance. For another sale to be relevant, the sale should be bona fide, voluntary, within a reasonable period of time, and the property sold should have sufficient similarity in location and physical features that extrapolation is practical. (Metropolitan Sanitary District v. Industrial Land Development Corp., 121 Ill. App.2d 393, 257 N.E.2d 532.) While an offer to purchase a subject property is not a comparative sale, such an offer may be relevant if it meets, to the extent ...


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