Appeal from the Circuit Court of Du Page County. No. 1--ED--28 Parcel ICU--0004A, ICU--0004B, ICU--0004 TE1, ICU--0004 TE2, ICU--0004 TE3 No. 1--ED--29 Parcel ICU--0003, ICU--0003 TE (Consolidated) Honorable Kenneth L. Popejoy, Judge, Presiding.
Supplemental Opinion Upon Denial of Rehearing
Defendants, 151 Interstate Road Corporation and Jane A. Green as trustee and Edward H. Green, Jr., as successor trustee of two revocable trusts, previously appealed an order of the circuit court of Du Page County denying their traverse and motion to dismiss, which they filed in response to an eminent domain proceeding initiated by plaintiff, the Illinois Department of Transportation (IDOT). We reversed and remanded with directions. See Illinois Department of Transportation v. 151 Interstate Road Corp., No. 2--01--0870 (May 30, 2002). IDOT subsequently filed a petition for rehearing. On our own motion, we requested defendants to respond to the petition. Defendants have done so, and IDOT has filed a reply brief. IDOT takes issue with two portions of our earlier opinion. First, IDOT contests our conclusion that it failed to act in good faith prior to initiating the present litigation. Second, IDOT contends that our construction of section 7--102.1 of the Eminent Domain Act (Act) (735 ILCS 5/7--102.1 (West 2000)) is erroneous. After careful consideration, we deny IDOT's petition for rehearing. Our original opinion issued in this matter contains an extensive discussion of the facts, which we will not repeat here.
Before addressing these issues, we acknowledge defendants' understandable and legitimate complaint that they are being forced to relitigate issues on rehearing that should have been addressed in IDOT's initial brief. IDOT's initial brief was nearly devoid of authority. In its petition for rehearing, IDOT acknowledges this omission as well as the prohibition against using a petition for rehearing as a vehicle for rearguing a case (see 155 Ill. 2d R. 367(b)). Generally, points not argued are waived and may not be urged on rehearing. Official Reports Advance Sheet No. 21 (October 17, 2001), R. 341(e)(7), eff. October 1, 2001. This rule is not jurisdictional and may be relaxed as the need for a just result and a uniform body of precedent mandates. Catalano v. Pechous, 69 Ill. App. 3d 797, 814 (1978). IDOT urges that this exception applies in the present case. We agree to an extent. In its petition, IDOT raises several important points that warrant this court's attention. However, as the Greens have already been put to the effort and expense of litigating this matter in the trial court and once on appeal, we will not apply the waiver rule to their prejudice.
In fact, the expense of litigation to which the Greens were thus far exposed brings us to the central issue underlying IDOT's first contention: Who should bear the cost of a deficient appraisal? IDOT argues that, in determining whether it acted in good faith, a condition precedent to filing suit (Department of Transportation ex rel. People v. Brownfield, 221 Ill. App. 3d 565, 567 (1991)), it should be judged in light of what information was available to it at each step in the negotiation and condemnation process. While this argument has some appeal, it completely removes from IDOT any responsibility to police its appraisers or verify that an appraisal upon which it is relying is valid. Of course, removing this responsibility from IDOT places it upon the owner of a parcel that IDOT seeks to acquire.
Requiring property owners to bear the burden of identifying defective appraisals places them between the Scylla of accepting an inadequate offer and Charybdis of incurring the expense of contesting the offer. One provision of the Act, however, allows a property owner to escape this dilemma. If a condemnation action is dismissed, a property owner may recoup attorney fees and costs incurred in defending the action. See Libertyville v. Bank of Waukegan, 152 Ill. App. 3d 1066, 1072-73 (1987). Because the good faith of the condemnor in seeking an agreement is a condition precedent to the filing of a condemnation action, the lack of good faith on the part of the condemnor requires the dismissal of the action. See City of Springfield v. West Koke Mill Development Corp., 312 Ill. App. 3d 900, 907-08 (2000). This refuge would be illusory in cases involving flawed appraisals if a condemnor were permitted to rely blindly on any appraisal it received. If good faith does not subsume some responsibility to insure that a condemnor is proceeding based upon a reasonable appraisal, a property owner could never secure a dismissal in a case like the present one, and, as a result, the cost of policing the condemnor's appraisers would fall solely on the property owner.
IDOT charges that we have created a netherworld between good faith and bad faith. For IDOT, good faith, in the context of a condemnation, is simply the absence of bad faith. Given this view, IDOT's position that it acted in good faith simply because it was ignorant of certain defects in the appraisal on which it was relying becomes understandable. If good faith is merely the absence of bad faith, IDOT's ignorance would defeat any claim that it was acting with some untoward mental state.
We recognize that the term "good faith" is used in many contexts in the law and that it does not have one universally accepted meaning. Black's Law Dictionary, for example, provides several not-entirely-overlapping definitions. Black's Law Dictionary 701 (7th ed. 1999) (defining "good faith" as "A state of mind consisting in (1) honesty in belief or purpose, (2) faithfulness to one's duty or obligation, (3) observance of reasonable commercial standards, or (4) absence of intent to defraud or to seek unconscionable advantage"). One widely accepted meaning, which occurs in a variety of contexts, interprets "good faith" to mean something more than the absence of bad faith.
For example, in Glass v. Peitchel, 42 Ill. App. 3d 240 (1976), the court considered whether a parent had demonstrated good faith in not seeking employment such that it was appropriate to abate child-support payments. The Glass court made the following observation:
"[I]t appears to us that child support payments may properly be abated or reduced where an inability to pay results from involuntary loss of employment, but we think that such relief should be temporary in nature in the sense that the petitioning party should be required within a reasonable time to establish that continued unemployment was in good faith; i.e., was the result of mental or physical disability or unsuccessful attempts to obtain other employment." Glass, 42 Ill. App. 3d at 243.
Thus, the Glass court required a parent, in the absence of mental or physical disability, to make actual efforts to obtain employment in order to remain in good-faith compliance with his or her obligations. Sitting by idly, ignorant of potential job opportunities, is insufficient to show good faith. While ignorance of the availability of employment would tend to negate an inference that the parent was deliberately avoiding working, the Glass court made clear that such a course of action would be incompatible with good faith.
In fact, many courts in many situations have refused to equate "good faith" with the simple lack of bad faith. See Cayuga Indian Nation v. Pataki, 165 F. Supp. 2d 266, 299 (N.D.N.Y. 2001) ("In light of the foregoing, in demonstrating its good faith the State must show more than simply the absence of bad faith"); Garrett v. St. Elizabeth Health Center, 142 Ohio App. 3d 610, 613, 756 N.E.2d 698, 700 (2001) ("A lack of a good faith effort to settle is not synonymous with bad faith"); Hoots v. Pennsylvania, 118 F. Supp. 2d 577, 612 (W.D. Pa. 2000) ("Good faith, though, requires more than simply an absence of bad faith"); Freeman v. Pitts, 503 U.S. 467, 499, 118 L. Ed. 2d 108, 139-49, 112 S. Ct. 1430, 1450 (1992) ("With respect to those areas where compliance had not been achieved, the District Court did not find that DCSS had acted in bad faith or engaged in further acts of discrimination since the desegregation plan went into effect. This, though, may not be the equivalent of a finding that the school district has an affirmative commitment to comply in good faith with the entirety of a desegregation plan, and further proceedings are appropriate for this purpose as well"); Port Susan Chapel of the Woods v. Port Susan Camping Club, 50 Wash. App. 176, 185-86, 746 P.2d 816, 821 (1987) ("Counsel must appreciate that good faith in advancing an argument consists of something more substantial than merely an absence of bad faith"); Penney v. Superior Court, 28 Cal. App. 3d 941, 953-54, 105 Cal. Rptr. 162, 171 (1972) ("Clearly, a good faith decision not to prosecute on the basis of insufficient evidence should be classified as something more than an absence of bad faith in determining whether a defendant can receive a fair trial"). In short, we have created no netherworld. We have ascribed to "good faith" a meaning that many courts have given it. While "good faith" may mean different things in different contexts, we are convinced that, in the context of a condemnation, it means something more than the lack of bad faith.
What that "something more" is may be difficult to define. At the very least, however, it entails that a condemning authority take some responsibility to ensure that property owners are treated fairly. Given the facts of this case (see Illinois Department of Transportation v. 151 Interstate Road Corp., No. 2--01--0870 (May 30, 2002)), it is clear that IDOT did not live up to this responsibility in its treatment of the Greens. IDOT, by relying on a deficient appraisal, placed them in the position of having to litigate. Their only possible recourse was to demonstrate that IDOT lacked good faith in its treatment of them. We conclude that, by demonstrating that IDOT relied on a completely deficient appraisal, they successfully showed a lack of good faith, which, in turn, mandated the dismissal of the instant action.
Except for two points, we will not revisit our conclusion that the appraisal IDOT relied on was completely deficient. IDOT worries that we have imposed on it a duty to monitor "hundreds and thousands of sales that are recorded in the public records each year to ferret out sales which may have occurred after it received its appraisals and which may be relevant" to an appraisal. We have imposed no such duty. We criticized Armstrong's explanation of why he failed to include a certain sale as a comparable in his appraisals. The sale occurred after Armstrong's initial appraisals but prior to his final one. Armstrong explained that the property was not a valid comparable because of the principle of "substitution," by which he meant that a potential buyer of the Greens' property would not be interested in this parcel due to its small size. Armstrong later admitted that he used a property one-sixth the size of the Greens' as a comparable. We included this criticism not to impose any duty on condemnors to monitor the real estate market in the months following an appraisal; rather, we included it because Armstrong's explanation defied credulity.
IDOT also questions our reliance on the potential for financial bias present in its relationship with Armstrong. Over the two years preceding the trial, IDOT paid Armstrong's employer over $161,000 based on his work. This accounts for about half his work and makes IDOT Armstrong's largest account. Armstrong is paid a commission based on revenue generated from clients. IDOT argues that these facts reflect the fact that it must, of necessity, use a limited number of appraisers familiar with eminent domain appraisal work. IDOT's plight is not unique. All parties who must hire expert witnesses must defend them from similar charges. In Sears v. Rutishauser, 102 Ill. 2d 402, 407 (1984), our supreme court observed that "[g]enerally, opposing counsel may probe bias, partisanship or financial interest of an expert witness on cross-examination." Recognizing the importance of potential financial bias, the court went ...