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Department of Transportation v. Chicago Title and Trust Co.

February 05, 1999

THE DEPARTMENT OF TRANSPORTATION, PLAINTIFF-APPELLANT,
v.
CHICAGO TITLE AND TRUST COMPANY, AS TRUSTEE UNDER TRUST AGREEMENT DATED AUGUST 28, 1975, AND KNOWN AS TRUST NO. 1066693, BY VIRTUE OF ITS STATUS AS RECORD OWNER, BOULEVARD NATIONAL BANK ASSOCIATION, AS TRUSTEE UNDER TRUST AGREEMENT DATED AUGUST 15, 1988 AND KNOWN AS TRUST NO. 8767, BY VIRTUE OF ITS STATUS AS CONTRACT PURCHASER DATED AUGUST 15, 1988, AS DOCUMENT 88449358, THE STARVIEW DRIVE-IN THEATER, BY VIRTUE OF ITS STATUS AS TAXPAYER AND POSSESSOR OF LAND, AND UNKNOWN OWNERS, DEFENDANTS-APPELLEES.



The opinion of the court was delivered by: Justice Quinn

Appeal from the Circuit Court of Cook County

Law Division

No. 89 L 51015

Honorable Alexander P. White, Judge Presiding.

The Department of Transportation of the State of Illinois (IDOT) appeals from a denial of its motion for judicial declaration of whole property and its motion for reconsideration. IDOT also appeals from a jury verdict awarding Chicago Title and Trust Company (Chicago Title), as trustee under trust No. 1066693, damages for a certain parcel of property it held in trust which was condemned.

By its motion, IDOT sought a declaration that three other parcels of property, all contiguous with the parcel at issue in this case, constituted a single piece of property for purposes of determining remainder damages. However, during the pendency of this action, IDOT condemned portions of two of these other parcels of property and obtained final judgment in those separate cases.

The issue in this case is whether evidence of valuation and remainder damages submitted to the jury in the instant case was correctly confined to the parcel in this case, or should the jury have been given evidence that the other contiguous parcels were part of a larger tract of property that allowed access, thereby reducing remainder damages?

Statement of Facts

Beginning in 1988, IDOT acquired several lots of property in northwestern Cook County at the intersection of Route 59 and Route 20. IDOT condemned three parcels of property at that location for the purpose of improving the flow of traffic on an entrance/exit ramp. For purposes of this appeal, these parcels will be designated as the "East Parcel," the "Starview Parcel," and "West Parcel 1." Prior to the condemnation of portions of these parcels, Route 20 had four lanes of traffic each 10 feet wide with no shoulders on the side of the road. Route 59 had two lanes, each 11 feet wide. After the take, Route 59 still went under Route 20, but the connecting ramps were modernized and traffic signals were placed on Route 59. Route 20 remained a four-lane thoroughfare, but the lanes were widened to 12 feet, and a median dividing traffic was installed. Route 59 was widened to four lanes.

The first parcel that was the subject of condemnation proceedings filed by IDOT, the East Parcel, was located immediately north of Route 20 and immediately west of Route 59. On September 7, 1988, IDOT filed a petition to condemn part of the East Parcel, pursuant to the "quick-take" provision of the Illinois Eminent Domain Act (Eminent Domain Act) (735 ILCS 5/7-103 (West 1994)). The East Parcel was comprised of a 10.197-acre lot immediately west of Route 59, immediately north of Route 20, and contiguous to the Starview Parcel on the East Parcel's west and north boundaries. Department of Transportation v. Alex, No. 88 L 51075. Pursuant to a "quick-take" proceeding, IDOT was vested with fee simple title to two strips of land, parcels 07U0004A and 07U0004B, on the East Parcel comprised of 3.229 acres, as well as a 0.801-acre temporary easement, parcel 07U0004TE, over the East Parcel. See 735 ILCS 5/7-103 (West 1994). Parcel 07U0004A was adjacent to Route 59, and parcel 07U0004B was on the corner of Route 20 and Route 59.

As of the date of the petition, the East Parcel was not improved with sewer and water lines, but had a private well and septic system. The East Parcel is located in unincorporated Cook County and was zoned as commercial property. At the time the petition was filed, the East Parcel was vacant, except for a small diner located in the southeast corner of the property. Ten acres of the East Parcel were used as a restaurant/truck stop called "Connie's," the Starview Parcel at the time was used as a drive-in movie theater, and West Parcel 1 was used as an auto salvage company.

Prior to April 19, 1988, title to the East Parcel was held by Marco J. Muscarello, as trustee of a land trust under trust number 1. On April 19, 1988, Muscarello and the Boulevard National Bank Association (Boulevard Bank) trust entered into articles of agreement for a trustee's deed to sell the East Parcel to the Boulevard Bank trust. The terms of the agreement were that possession was to be delivered within 90 days of the "initial closing," on or about November 15, 1988. The court entered an order vesting title in IDOT to the condemned portion of the property on February 9, 1989. On February 28, 1989, the court entered an order finding that Muscarello, as trustee, was the owner of the East Parcel, and ordering the State Treasurer to pay Muscarello $615,700 for preliminary just compensation. On January 23, 1991, Muscarello and the Boulevard Bank trust completed the "Final Closing" under the articles of agreement for trustee's deed.

The Starview Parcel is the subject of the underlying condemnation proceeding, which was filed on August 18, 1989, pursuant to the "quick-take" provision (735 ILCS 5/7-103(West 1994)). Department of Transportation v. Chicago Title & Trust Company, No. 89 L 51015. The Starview Parcel was owned by Chicago Title, as trustee of a land trust under trust number 1066693. The Starview Parcel is contiguous to the East Parcel on the East Parcel's west and north sides. The Starview Parcel is immediately north of Route 20, and the majority of the property is 715 feet west of Route 59, but a small northeast portion extends eastward along the northern boundary of the East Parcel to Route 59. At the time of the condemnation petition, the Starview Parcel consisted of 26.324 acres located in unincorporated Cook County near the villages of Bartlett and Streamwood. The Starview Parcel was also zoned as commercial property by Cook County. At the time of the petition, the Starview Parcel was vacant, improved only with a drive-in movie theater, the Starview Drive-in Theater, that was no longer in operation. The Starview Parcel had no sewer or water lines, but had a private well and septic system.

Pursuant to a "quick-take" proceeding, IDOT was vested with fee simple title to a 0.315 acre-strip of frontage property along Route 20, parcel 07U0003A, and a 0.126 acre-strip of frontage property along Route 59, parcel 07U0003B. See 735 ILCS 5/7-103 (West 1994). IDOT also acquired all access rights to Route 20 from the Starview Parcel.

Frank Marsico was the sole benficiary of the land trust of the Starview Parcel. On March 1, 1988, Marsico entered into an agreement with Highland Development Company (Highland Development), an Illinois corporation, pursuant to a trustee's deed to allow Highland Development to purchase the Starview Parcel. The shares of Highland Development were held entirely by three people: Gregory Matic, John Wilson, and Francis Wilson. Matic testified at his deposition that Highland Development had obtained numerous engineering site plans, reports, and a plat of survey depicting all four parcels, for planning the development of the East Parcel, Starview Parcel, and West Parcel 1 as a single, unified commercial retail shopping center.

On August 15, 1988, Chicago Title entered into an agreement with Boulevard Bank, as trustee under a land trust under trust number 8767, and executed a "Memorandum of Articles of Agreement for Deed" (articles of agreement), which was intended to evidence the Boulevard Bank Trust's interest and right to purchase the Starview Parcel in accordance with the March 1, 1988, trustee's deed. The Articles of Agreement document was recorded with the Cook County recorder of deeds. Under the Articles of Agreement, possession of the Starview Parcel was to be delivered to the Boulevard Bank Trust at the time of the "Initial Closing," or about August 3, 1988. Subsequently, on January 23, 1991, Chicago Title and the Boulevard Bank Trust completed the "Final Closing" under the Articles of Agreement, at which time legal title to the Starview Parcel was transferred to the Boulevard Bank Trust.

On October 24, 1989, the court entered an order vesting title to the parts taken of the Starview Parcel, the frontage along Route 20 and Route 59 and the access rights to Route 20, in IDOT. On December 5, 1989, the court entered an order finding Chicago Title to be the owner of the Starview Parcel, as trustee, and ordering payment of preliminary just compensation to Chicago Title.

Also at issue in the present appeal are two additional parcels. The first of these additional parcels, West Parcel 1, consists of approximately nine acres located north of Route 20 and immdiately west of Parcel 1. IDOT filed a complaint to condemn a portion of West Parcel 1 on August 10, 1989. Department of Transportation v. LaSalle National Bank, No. 89 L 50967. West Parcel 1 was zoned as commercial property and consisted of vacant land, with a barn at the southern boundary of the property. On October 13, 1989, title to the part taken vested in IDOT. The court entered a final judgment order on May 22, 1990, for a preliminary and final just compensation award to Gershon Hammer, as sole beneficiary of LaSalle National Bank land trust 10-027764-90. Hammer withdrew the award, and the award was then made payable to LaSalle National Bank.

Prior to this final judgment order, Hammer had contracted to sell West Parcel 1 in a purchase agreement dated May 19, 1988, to the Boulevard Bank Trust. The purchase agreement provided as a condition precedent to closing that the sellers of the Starview Parcel and the East Parcel must be ready, willing, and able to convey those properties at the time of the closing of West Parcel 1. The closing was held on February 1, 1991, at which time legal title to West Parcel 1 passed to the Boulevard Bank Trust.

The second of these additional parcels, West Parcel 2, was not subject to a condemnation proceeding. West Parcel 2 is a 9.3-acre plot of undeveloped property, also zoned as commercial property, located north of Route 20 and immediately west of West Parcel 1. Thus, on the plat of survey, the lots are contiguous, from east to west, with the East Parcel being the easternmost parcel, then the Starview Parcel, West Parcel 1, and West Parcel 2 being the westernmost parcel. West Parcel 2 was sold on September 19, 1989. The seller was the Jel Sert Company, an Illinois corporation, and the buyers were the Boulevard Bank Trust ...


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