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06/30/94 DEPARTMENT TRANSPORTATION STATE ILLINOIS

June 30, 1994

THE DEPARTMENT OF TRANSPORTATION OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT,
v.
G. A. WHITE, AS TRUSTEE UNDER A TRUST AGREEMENT DATED THE 7TH DAY OF APRIL, 1981, KNOWN AS THE DOUBLE CHERRY LAND TRUST; BOWMAN TIRE MART; BANK OF MARION, AN ILLINOIS BANKING CORPORATION; PEOPLE'S BANK OF MARION, AN ILLINOIS BANKING CORPORATION; BRUCE A. TROUTMAN, TREASURER OF WILLIAMSON COUNTY, ILLINOIS; AND UNKNOWN OWNERS, DEFENDANTS, AND TOM PARKS; NELDA THOMPSON; NELDA THOMPSON, AS SUCCESSOR TRUSTEE TO G. A. WHITE, AS TRUSTEE UNDER TRUST AGREEMENT DATED THE 7TH DAY OF APRIL, 1991, KNOWN AS THE DOUBLE CHERRY LAND TRUST; JAMES W. REED; SONYA R. REED; DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Williamson County. No. 88-ED-2. Honorable C. David Nelson, Judge Presiding.

Maag, Chapman, Welch

The opinion of the court was delivered by: Maag

JUSTICE MAAG delivered the opinion of the court:

The plaintiff-appellant, the Department of Transportation of the State of Illinois (the Department), filed a complaint for condemnation against the defendants on May 2, 1988, to condemn 4.32 acres of Parcel No. 270. Its purpose was to acquire land belonging to the defendants in order to relocate and reconstruct F.A.P. Route 111 which is commonly known as Illinois Route 13 (hereinafter "Route 13"), which is located in Williamson County, Illinois. Of the various parcels condemned, only those of Nelda Thompson as trustee, Nelda Thompson, individually, Tom Parks, James W. Reed, and Sonya R. Reed are here considered. James and Sonya Reed did not file a brief in this appeal.

This case concerns the proper determination of just compensation for real property that was taken by the Department and the decrease in the value of the contiguous portion that was not taken. Also at issue is the just compensation to be paid to the Reeds for their leasehold interest in the property that was taken and the value of their mobile home that was located on the same property. The jury determined that the just compensation to be paid to the defendants Nelda Thompson as trustee, Nelda Thompson, individually, and Tom Parks for the taking of their property was $112,500 and the damages to the remainder to be paid to the same defendants was $15,000. The jury did not award anything to James and Sonya Reed for the taking of their property. The final judgment order was entered on October 9, 1991. The plaintiff's posttrial motion was denied. The plaintiff appeals.

The plaintiff-appellant cites several errors in the conduct of the trial which include (1) the trial court's refusal to admit evidence of the value of the separate interests of the individual defendants; (2) the trial court's refusal to give certain instructions and verdict forms and its allowance of other instructions and verdict forms; (3) the trial court's allowance of valuation testimony by Tom Parks; and (4) the trial court's exclusion of the valuation testimony by plaintiff's experts, J. David Thompson and Glen Grosse.

In response to the complaint for condemnation, the defendants, James and Sonya Reed, filed a motion on June 1, 1988, requesting that a separate determination be made by the jury to determine the value of the leasehold interest in the premises and the value of their mobile home with improvements.

Pursuant to the quick-take provisions of the Code of Civil Procedure (see 735 ILCS 5/7-103 (West 1992)), the Department filed a motion for immediate vesting of title. After the quick-take hearing on February 28, 1989, the trial court entered an order of immediate vesting of title and for setting value. The court determined that the amount constituting just compensation for the taking of fee-simple title to Parcel No. 270 was as follows: (1) the value of the property taken was $75,000; (2) the value of the Reeds' leasehold interest and the contract for sale of their mobile home was $22,900; and (3) the value of the damage to the remainder was $14,000.

On March 14, 1989, the Reeds filed a petition for withdrawal requesting that they be allowed to withdraw the $22,900 that they were awarded in the order that disposed of the quick-take proceeding. Nelda Thompson entered her appearance in this suit by filing a petition alleging that she was the seller of the mobile home under a contract for sale to the Reeds. She claimed that the Reeds owed her a balance of $2,250 and requested that the court direct the Treasurer of Williamson County to pay her $2,250 from that part of the compensation that was awarded to the Reeds. On March 17, 1989, the court entered an order for withdrawal that allowed the Reeds to withdraw the sum of $20,650. Nelda Thompson was allowed to withdraw $2,250 in satisfaction of her interest in the mobile home.

The plaintiff filed six motions in limine to exclude the valuation testimony of Tom Parks, Earl Parks, and Arlie Keene. Each motion in limine was denied. At trial, the plaintiff renewed its motions in limine to exclude Earl Parks' and Arlie Keene's valuation testimony. The court granted the motions in limine and excluded the valuation testimony of Earl Parks and Arlie Keene.

On August 23, 1991, the defendant, Tom Parks, filed a motion requesting that the jury return a separate verdict as to the leasehold interest of the Reeds.

At trial, Tom Parks testified that the highest and best use of the property that was taken was commercial. He admitted that he had considered the mobile home in his valuation. He stated that the fair market value of the 13.3 acres as a whole was $250,000. He believed that the fair market value of the 4.3 acres that was taken was $135,000. He further testified that the fair market value of the remainder as part of the whole was $115,000, the fair market value after the taking was $100,000, and the damage to the remainder by reason of the taking was $15,000. The plaintiff made a motion to strike Tom Parks' valuation testimony because he had allegedly considered improper elements in reaching his opinions of value. The court denied this motion.

After the voir dire of J. David Thompson, one of the plaintiff's expert valuation witnesses, the defense moved to exclude his testimony. The defendants' attorney, Paul Austin, stated that he had requested that comparables be furnished to him, and that he had never been furnished with any information or a deed relating to the Perry property, which was one of the comparable properties testified to by Mr. Thompson during the voir dire. The defendants' motion was granted, and the court excluded the testimony of J. David Thompson on the basis that the plaintiff had not complied with Supreme Court Rule 220 (134 Ill. 2d R. 220).

After the voir dire of Glen Grosse, another expert valuation witness for the plaintiff, the defense moved to exclude his testimony. The defense claimed that Mr. Grosse had considered other property that had been sold and comparable sales about which he had not been informed. The defendants' motion was granted, and the testimony of Glen Grosse was excluded for failure to comply with Supreme Court Rule 220.

The plaintiff's only remaining valuation witness, Harold Miller, testified that the fair market value of the whole property was $108,600. He stated that the value of the property taken was $83,000, and that the value of the remainder before the taking was $25,500. The value of the remainder after the taking was $15,300; hence, the remainder was damaged in the amount of $10,200.

After deliberation, the jury found that the total just compensation to be paid to all of the defendants for the taking was $112,500; the just compensation to be paid to the defendants Nelda Thompson as trustee, Nelda Thompson, individually, and Tom Parks for the taking of their property was $112,500; the damages to the remainder to be paid to the defendants Nelda Thompson as trustee, Nelda Thompson, individually, and Tom Parks was $15,000; and the just compensation to be paid to the defendants James and Sonya Reed, for the taking of their property, was $0. On October 9, 1991, the final judgment order was filed. The plaintiff filed a posttrial motion on November 8, 1991. On June 12, 1992, the posttrial motion was denied. The plaintiff filed a notice of appeal on July 9, 1992.

The United States Constitution provides that private property shall not be "taken for public use without just compensation." (U.S. Const., amend. V.) Similarly, the Illinois Constitution provides that this State is prohibited from taking or causing damage to private property without just compensation. (See Ill. Const. 1970, art. I, sec. 15.) The purpose of these provisions is to make the owner whole, not to place him in a better position than he was before his land was taken. People ex rel. Director of Finance v. Young Women's Christian Association (1979), 74 Ill. 2d 561, 572, 387 N.E.2d 305, 311, 25 Ill. Dec. 649.

The only question for a jury to determine in an eminent domain proceeding is the just compensation to be paid to the owner of the property sought to be condemned. ( City of Chicago v. Anthony (1990), 136 Ill. 2d 169, 174, 554 N.E.2d 1381, 1383, 144 Ill. Dec. 93.) Just compensation is defined as the "market value" of the property concerned adapted to its highest and best use ( Housing Authority of East St. Louis v. Kosydor (1959), 17 Ill. 2d 602, 606, 162 N.E.2d 357, 359) on the date of the filing of the complaint to condemn. ( Department of Public Works & Buildings v. Association of Franciscan Fathers (1977), 69 Ill. 2d 308, 314, 371 N.E.2d 616, 618, 13 Ill. Dec. 681.) Market value is "what the owner, if desirous of selling, would sell the property for; and what reasonable persons, desirous of purchasing, would have paid for it." Ligare v. Chicago, Madison & Northern R.R. Co. (1897), 166 Ill. 249, 261-62, 46 N.E. 803, 808 (now codified in 735 ILCS 5/7-121 (West 1992)).

In the instant case, the plaintiff contends that the court erred in not admitting evidence of the individual defendants' separate interests when it allowed the jury to determine the just compensation to be paid to the defendants. More specifically, the plaintiff claims that it should have been allowed to introduce testimony on the fair market value of the Reeds' leasehold interest and mobile home apart from the Parks' property.

The Illinois courts have consistently held, however, that the fair market value of improved property is not the sum of the value of the building and the value of the land computed separately. ( Department of Public Works & Buildings v. Lotta (1963), 27 Ill. 2d 455, 456, 189 N.E.2d 238, 240.) The rationale behind this rule is that the whole does not necessarily equal the sum of its parts ( Lotta, 27 Ill. 2d at 456, 189 N.E.2d at 240). If the court allowed testimony which applied separate dollar values to specific improvements, the jury could potentially be misled or confused. ( Department of Transportation v. Schlechte (1981), 94 Ill. App. 3d 187, 190, 418 N.E.2d 1000, 1002, 50 Ill. Dec. 6.) Hence, the courts in Illinois have repeatedly held this type of testimony to be improper. (See Schlechte, 94 Ill. App. 3d at 190, 418 N.E.2d at 1002.) Accordingly, it is improper for a court to allow the cross-examination of a witness on the separate values of land and buildings ( Schlechte, 94 Ill. App. 3d at 191, 418 N.E.2d at 1002) in a condemnation proceeding. "There can be no genuine confusion on this point. The admission of specific figures constitutes palpable and reversible error." Schlechte, 94 Ill. App. 3d at 191, 418 N.E.2d at 1002.

The condemnor has the burden of proving the fair market value of the property being taken. ( Cook County v. Holland (1954), 3 Ill. 2d 36, 40, 119 N.E.2d 760, 762.) This places the condemnor in an awkward position when multiple interests are involved because "the amount of just compensation shall be distributed among all persons having an interest in the property according to the fair value of their legal or equitable interests. (Emphasis added.) (See 735 ILCS 5/7-127 (West 1992).) Therefore, the courts have provided that the division and apportionment of a condemnation award should be determined subsequent to the ascertainment of the value of the tract taken. (See City of Rockford v. Robert Hallen, Inc. (1977), 51 Ill. App. 3d 22, 26, 366 N.E.2d 977, 979, 9 Ill. Dec. 466; Department of Public Works & Buildings v. Schmauss (1972), 6 Ill. App. 3d 470, 473, 285 N.E.2d 628, 631; City of Vandalia v. Tate (1966), 66 Ill.App.2d 488, 492, 213 N.E.2d 787, 789.) In fact, the Illinois Supreme Court has stated that if "it becomes necessary for the jury to assess damages for separate interests in condemnation proceedings, it is the duty of the jury to first fix the fair cash market value of the entire property as between the petitioner and all the defendants, and then to divide the same according to the respective rights of the defendants." Lambert v. Giffin (1912), 257 Ill. 152, 158, 100 N.E. 496, 499.

Because we have no guidelines on the manner in which the jury is to apportion its valuation of the whole, we believe that a bifurcated proceeding would be appropriate in cases where multiple interests are involved. In the first part, the condemnation proceeding, the trier of fact should determine the value of the whole that was taken. Subsequent to the condemnation proceeding, another hearing should be held solely to apportion the condemnation award. In the apportionment hearing, testimony should be elicited regarding the fair market value of the separate interests of the multiple defendants. We believe that by proceeding in this fashion, the jury will not be in a position to be misled and, in turn, inflate the value of the whole since it has already been determined in the condemnation proceeding. Hence, we believe that the circuit court erred in not allowing a bifurcated proceeding so testimony could be elicited in the apportionment hearing regarding the value of each of the defendants' separate interests.

Furthermore, we believe that any errors regarding the jury instructions and verdict forms would only affect the amount of the jury's award. Therefore, because we believe that the jury's valuation of the whole and the damage to the remainder were within the range of the testimony given at trial, we do not believe that it is necessary to rule on the plaintiff's remaining contentions of error regarding the jury instructions and verdict forms. In any event, any error which may have occurred was harmless at best.

Additionally, the plaintiff contends that the court erred in allowing Tom Parks' valuation testimony because he relied on improper factors. More specifically, the plaintiff claims that the court should not have allowed Parks' testimony because he considered the irregular shape of the remainder in determining the fair market value of the part that was taken and in determining the damages to the remainder. We disagree.

Generally, the owner of land is qualified to express an opinion of its value merely by virtue of his ownership. ( Department of Transportation v. Harper (1978), 64 Ill. App. 3d 732, 735, 381 N.E.2d 843, 846, 21 Ill. Dec. 516.) This rule, however, is not absolute. ( Harper, 64 Ill. App. 3d at 735, 381 N.E.2d at 846.) "Mere ownership does not render a person competent to render an opinion as to value, unless he is in fact familiar with facts which give the property value." ( Harper, 64 Ill. App. 3d at 735, 381 N.E.2d at 846 (quoting 5 Nichols, The Law of Eminent Domain, sec. 18.4(2) (rev. 3d ed. 1969)).) This court has previously interpreted this exception to the general rule to be limited to "special circumstances where, for example, a person has inherited the property or has no realistic idea of its value." ( Harper, 64 Ill. App. 3d at 735, 381 N.E.2d at 846; see American National Bank & Trust Co. v. City of North Chicago (1987), 155 Ill. App. 3d 970, 973, 508 N.E.2d 1111, 1113-14, 108 Ill. Dec. 534.) The burden is on the party objecting to the landowner's testimony to show that it has no probative value and falls within this exception. ( Harper, 64 Ill. App. 3d at 735, 381 N.E.2d at 846.) The tool of cross-examination can be utilized to expose the absence of probative value in the landowner's testimony. See Harper, 64 Ill. App. 3d at 735, 381 N.E.2d at 846.

The colloquy between Mr. Broom and Mr. Parks regarding the irregular shape of the remainder is, in relevant part, as follows:

"Q. Do you have an opinion as to the fair market value of the part taken as of May 2nd, 1988?

A. I would think around $135,000.

Q. And what is the basis of that opinion?

A. Well, the way they have left the irregular shape, and so on and so forth it's just not what I had to start with, and --

Q. All right. Now, these questions are kind of tricky, so be sure you understand them. Do you have an opinion as to the fair cash market value of the remainder ...


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