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06/29/94 BERNARD VOGT AND JAMES VOGT v. FRED V.

June 29, 1994

BERNARD VOGT AND JAMES VOGT, PETITIONERS-APPELLEES,
v.
FRED V. BARTELSMEYER AND THE DEPARTMENT OF PUBLIC WORKS AND PUBLIC BUILDINGS OF THE STATE OF ILLINOIS, RESPONDENTS-APPELLANTS.



Appeal from the Circuit Court of St. Clair County. No. 91-CH-210. Hon. James M. Radcliffe, Judge Presiding.

Petition for Leave to Appeal Denied October 6, 1994.

Goldenhersh, Rarick, Lewis

The opinion of the court was delivered by: Goldenhersh

JUSTICE GOLDENHERSH delivered the opinion of the court:

Respondents, Fred V. Bartelsmeyer (Bartelsmeyer) and the Department of Public Works and Public Buildings of the State of Illinois (the Department), appeal from an order of the circuit court of St. Clair County in favor of petitioners, Bernard Vogt and James Vogt, ordering respondents to construct an overpass over Interstate 255 in the exact location shown on petitioners' exhibits 1 through 4, pursuant to the terms of a 1977 settlement agreement between the parties. The principal issue raised by respondents is one of jurisdiction. Respondents contend that under the doctrine of sovereign immunity, the court of claims has exclusive jurisdiction over petitioners' cause of action, and the circuit court erred in refusing to dismiss petitioners' case. Assuming, arguendo, that the circuit court had jurisdiction, respondents additionally contend that the circuit court erred in deciding the case in favor of petitioners because (1) the circuit court's determination that an agreement existed to build an overpass was against the manifest weight of the evidence, (2) petitioners' cause of action was barred by the five-year statute of limitations applicable to oral contracts (Ill. Rev. Stat. 1991, ch. 110, par. 13-205 (now 735 ILCS 5/13-205 (West 1992)), (3) the statute of frauds was applicable, and (4) the Department cannot build the overpass without Federal approval or sufficient funds. We affirm.

I

While the facts are not in dispute, the history of this case is important to its resolution. On August 25, 1971, the Department filed a petition to acquire land owned by petitioners and Sharon Vogt under the authority of articles III and IV of the Illinois Highway Code (Ill. Rev. Stat. 1971, ch. 121, pars. 3-101 through 4-508 (now 605 ILCS 5/3-101 through 4-508 (West 1992))). Sharon Vogt takes no part in this appeal. The purpose for the taking was construction of a bridge across the Mississippi River. A cross-petition was filed, alleging that certain land would be damaged as a result of the taking and requesting damages for such loss. On November 16, 1971, the Department filed a motion for immediate vesting of title in accordance with the Eminent Domain Act "quick take" provisions. (Ill. Rev. Stat. 1971, ch. 47, pars. 2.1 through 2.10 (modified effective July 1, 1982: see Ill. Rev. Stat. 1983, ch. 110, par. 7-101 et seq. (now 735 ILCS 5/7-101 et seq. (West 1992))).) On November 30, 1971, the circuit court entered an order finding authority for the "quick take" and setting preliminary and just compensation. Three years after this order was entered, the plans for the highway remained incomplete and final compensation remained undetermined. As aresult, the circuit court vacated its original order, dismissed the Department's petition, and entered an order revesting title to petitioners herein and Sharon Vogt.

The Department appealed the circuit court's decision, and on March 10, 1977, this court affirmed the circuit court's determination. ( Department of Public Works & Buildings v. Vogt (1977), 51 Ill. App. 3d 770, 366 N.E.2d 310, 9 Ill. Dec. 53.) Our supreme court granted leave to appeal but, after reviewing the matter, dismissed the appeal as moot. ( Department of Transportation v. Schien (1978), 72 Ill. 2d 287, 381 N.E.2d 241, 21 Ill. Dec. 163.) The parties worked out a settlement as evidenced by:

"copies of documents executed by respondents on March 30, 1977, designated as dedications of right-of-way for a freeway, a release for freeway, temporary construction easements and a special agreement, in return for which they were paid sums greatly in excess of the amounts fixed by the court as preliminary just compensation for the taking of the property." ( Schien, 72 Ill. 2d at 291, 381 N.E.2d at 243.)

Accordingly, our supreme court determined:

"There is no issue here of right to possession, nor is there any issue of the just compensation to be paid. * * * It is obvious that the issues presented in the original proceeding are moot and the appeal is therefore dismissed." Schien, 72 Ill. 2d at 292, 381 N.E.2d at 243.

On June 3, 1991, petitioners filed the instant action against respondents, alleging that respondents breached the settlement agreement. On July 29, 1991, petitioners filed their second and final amended petition. Petitioners alleged that in March 1977, Bartelsmeyer entered into a series of agreements in which petitioners agreed to sell to the Department certain parcels of land to be used for construction of Interstate 255. The Department orally agreed to build an overpass over Interstate 255 in order to connect two parcels of petitioners' land which would be divided by the highway. The highway was completed in November 1990 but did not include the overpass agreed to by the parties. Count I of the petition requested enforcement of the settlement agreement, while Count II requested a mandatory injunction (specific performance). Respondents filed several motions to dismiss. Attached to the first motion was the affidavit of Jerry Rank, a design-squad leader at the Department of Transportation. Rank stated in the affidavit that on December 28, 1982, he informed petitioners that the overpass would not be built on their property. Attached to a motion for summary judgment filed by respondents was a Department memorandum of Jerry Rank, dated December 28, 1982, summarizing his conversation with petitioners. Also attached were newspaper articles published in February 1981, in the St. Louis Globe-Democrat and the Belleville News-Democrat which noted the location of the overpass. Respondents also submitted the Department's written policy explaining that the Bureau of Land Acquisitions could only acquire land to obtain right-of-way rights for highways. In response, petitioners filed their own affidavits denying that they had such a conversation with Rank in 1982. Ultimately, the circuit court denied respondents' motions.

On November 5, 1992, an evidentiary hearing was held in which several witnesses testified concerning the agreement in question. Fred V. Bartelsmeyer, who negotiated with petitioners on behalf of the Department, testified that the parties initially agreed to a price of $160,000 as compensation for the taking of petitioners' land, but that petitioners would not agree to sign the deeds or complete the execution of the documents until additional matters were agreed upon, including the building of the overpass to connect petitioners' property. On March 30, 1977, a meeting took place between the parties at which time petitioners were shown the plans for the highway. On these plans, an "X" was marked in the location where the overpass was to be built to connect petitioners' property.

Bernard Vogt testified that he was orally assured by Bartelsmeyer and engineers for the Department that the overpass would be built as described in the plans. Vogt specifically stated that the overpass was one of the things he "held out for so he could get from one side to the other, to the fields, or to the farm." He further claimed he would not have sold the land unless the overpass was built. He believed Bartelsmeyer had the authority to enter into such an agreement. Bartelsmeyer signed the plans as "true and correct" copies and initialed them. Bartelsmeyer testified that the plans were subject to ...


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