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01/22/98 DEPARTMENT TRANSPORTATION v. HARRY E.

January 22, 1998

THE DEPARTMENT OF TRANSPORTATION, STATE OF ILLINOIS, PLAINTIFF-APPELLANT,
v.
HARRY E. CRULL, MARIAN E. CRULL, LESTER'S TASTY DONUTS, INC., AN ILLINOIS CORPORATION, DEFENDANTS-APPELLEES, AND COMMERCE BANK, NA, THE CITY OF CHILLICOTHE, AND THE PEORIA COUNTY TREASURER, DEFENDANTS.



Appeal from Circuit Court of Peoria County. 96ED11. Honorable Bruce W. Black, Judge Presiding.

Honorable Robert J. Steigmann, J., Honorable Rita B. Garman, J. - Concur, Honorable James A. Knecht, J. - Concur. Justice Steigmann delivered the opinion of the court.

The opinion of the court was delivered by: Steigmann

The Honorable Justice STEIGMANN delivered the opinion of the court:

In April 1996, plaintiff, the Illinois Department of Transportation (Department), filed a complaint for condemnation against defendants, Harry and Marian Crull, who owned some property the Department needed for the purpose of widening Route 29 in Chillicothe, Illinois. In January 1997, the jury returned a verdict for damage to the remainder in the amount of $112,000, and the trial court entered an order reflecting that verdict. (The only issue at trial was the amount of damage to the remainder.)

The Department appeals, arguing that the trial court erred by allowing defendants' opinion witness to (1) testify at trial regarding previously undisclosed opinions, and (2) calculate fair market values using improper methods. Because we agree with the Department's first argument, we reverse and remand for a new trial.

I. BACKGROUND

In April 1996, the Department filed a complaint for condemnation against defendants Harry and Marian Crull (as well as some others who are not parties to this appeal) to acquire property defendants owned for the purpose of widening Route 29 in Chillicothe, Illinois.

Defendants' property is located at the intersection of Beech Street and Route 29. It is improved with an L-shaped commercial building containing three businesses owned by defendants and one business that rented space from defendants. The property had 10 parking spaces in front of the building (adjacent to Route 29) and 22 parking spaces on the side of the building. The Department sought a piece of this property approximately 10 feet wide bordering Route 29 and a triangular piece across the corner at the intersection. The taking eliminated the 10 parking spaces in front of the building.

In October 1996, the trial court entered an order vesting the Department with title to the premises. Prior to trial on the issue of final just compensation, the parties stipulated to the amount of damages for the fee simple and temporary easement acquisitions and further stipulated that damage to the remainder would occur. Accordingly, the only issue at trial was the amount of damage to the remainder.

During a pretrial deposition, Gregory Stone, defendants' opinion witness, stated that he calculated the fair market value of the property before the taking using the cost method, income method, and sales-comparison method. He settled on a fair market value of $240,000, based on the income method. He also stated that he would testify that the damage to the remainder totaled $125,011.64 as of June 24, 1996, based on the cost-to-cure method. The cost to cure was the cost of tearing down a portion of defendants' building along Route 29 (to provide parking spaces) and constructing an addition with the same square footage at the rear of the building.

James Klopfenstein, a professional appraiser and the Department's opinion witness, testified that the fair market value of the whole property before the taking was $216,000, based on sales of comparable properties. (The parties stipulated that the value of the fee simple acquisition was $10,000.) The taking damaged the property by eliminating parking spaces and moving the road closer to the building. Klopfenstein appraised the property's fair market value after the taking at $171,000, based on his judgment, knowledge, and 30 years' experience with the real estate market. Thus, the damage to the remainder as a result of the fee simple taking--the difference in value between the property before and after the taking--was $35,000. Klopfenstein also testified that the damage as a result of the easement totaled $8,800, resulting in a total damage amount of $43,800. These appraisals were based on values as of the date of filing, April 25, 1996.

At trial, Stone repeated his deposition testimony that the damage to the remainder totaled $125,011.64, based on the cost-to-cure method. He also opined that the value of the property before the taking was $240,000, and the value after the taking was $50,000; therefore, the difference--the damage to the remainder--was $190,000, as of April 25, 1996. Taking into account the value of the fee simple and easement acquisition, Stone arrived at a total damage figure of $179,000.

At trial, the Department objected to Stone's use of the cost-to-cure method to calculate values. The trial court agreed that the cost-to-cure method was improper, struck the testimony, and instructed the jury to disregard that portion of Stone's opinion that valued the damage to the remainder at $125,011.64, based on the cost to cure.

The Department objected to Stone's remaining testimony on the basis that it had not been disclosed prior to trial; thus, it violated Supreme Court Rule 213 (166 Ill. 2d R. 213). The Department's counsel stated:

"Nowhere in [Stone's deposition or report] is there an opinion disclosed to me as to what his opinion is of the fair market value of the remainder after the taking as affected by the taking."

However, the trial court overruled the Department's objection and allowed Stone's remaining testimony to stand, stating that it was in the best interest of justice to allow the testimony. The court also stated that "the rest of [Stone's] testimony will be something the jury may ...


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