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Board of Trustees of the University of Illinois v. Shapiro

September 30, 2003

THE BOARD OF TRUSTEES OF THE UNIVERSITY OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
WILLIAM SHAPIRO, DEFENDANT-APPELLANT.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE JOANNE L. LANIGAN, JUDGE PRESIDING.

The opinion of the court was delivered by: Presiding Justice Campbell

UNPUBLISHED

Defendant, William Shapiro (Shapiro), appeals from an order of the circuit court of Cook County directing a verdict in favor of plaintiff, the Board of Trustees of the University of Illinois (the Board), after a trial in an eminent domain action. On appeal, Shapiro contends that: (1) the judgment of the trial court is void as in excess of its statutory authority regarding eminent domain proceedings; (2) the trial court abused its discretion in excluding evidence of comparable sales properties on the grounds that the acquisition of such properties was "under threat of condemnation"; (3) the trial court abused its discretion in excluding evidence of comparable sales properties with improvements to the land on the grounds that the properties were dissimilar to the subject property; (4) the trial court erred in barring Shapiro's expert appraiser's testimony on the grounds that a property used as an example of a comparable sale is zoned differently from the subject property; and (5) the trial court erred in granting the Board's motion to strike Shapiro's expert's testimony after both parties had rested on their evidence. For the following reasons, we affirm the judgment of the trial court.

BACKGROUND

The record reveals the following relevant facts. Shapiro is the owner of record of a parcel of property located at 728 W. Liberty Street, Chicago, with a property index number (PIN) of 17-21-111-017 (Liberty property). The Liberty property consists of 1,825 square feet, is vacant and unimproved, and is zoned for industrial use only.

Section 7 of the University of Illinois Act (University Act) (110 ILCS 305/1 et seq. (West 2000)) grants the Board has the following power of eminent domain:

"The Trustees shall have power (a) to purchase real property and easements, and (b) to acquire real property and easements in the manner provided by law for the exercise of the right of eminent domain, and in the event negotiations for the acquisition of real property or easements for making any improvement which the Trustees are authorized to make shall have proven unsuccessful and the Trustees shall have by resolution adopted a schedule or plan or operation for the execution of the project and therein made a finding that it is necessary to take such property or easements immediately or at some specified later date in order to comply with the schedule, the Trustees may acquire such property or easements in the same manner provided in Sections 7-103 through 7-112 of the Code of Civil Procedure."
110 ILCS 305/7(a) (West 2000). In accordance with the University Act, the Board passed a resolution on March 12, 1998, to acquire the Liberty property. On June 23, 2000, the Board exercised its authority under the University Act to obtain Shapiro's property for use in its South Campus Development Project by filing a complaint for condemnation.

On September 20, 2000, the trial court entered a case management order setting forth deadlines for the parties' filings. The trial court set forth the date of November 29, 2000, as a deadline for Shapiro to file "Responses, if any, to the Complaint for Condemnation, including Motions to Dismiss, Traverses, and Cross Claims." *fn1 The record shows that Shapiro did not file any motion to dismiss the Board's action. On March 30, 2001, Shapiro answered the Board's interrogatories stating that he would rely on two real estate appraisal experts, Michael Grimes and Larry Starkman.

On June 22, 2001, the Board filed a motion in limine to bar the testimony of Starkman, on the grounds that he had not been made available for deposition. The trial court granted this motion by an order entered on June 27, 2001. The trial court further ordered that "Defendant William Shapiro is barred from supplementing the appraisal of Michael Grimes," and ordered that discovery be closed on July 16, 2001.

Prior to trial, Grimes submitted an appraisal report on the Liberty property. Grimes' appraisal report provided the sale price of four properties he considered "comparable" to the Liberty property. The report revealed that three out of the four property sales were made under threat of condemnation and two of those three properties were zoned for commercial use. Properties Nos. 1, 2 and 3 were all within the area that the Board had, by resolution dated September 10, 1992, specifically designated for acquisition as part of its South Campus Development Project. Grimes' appraisal report identified properties 1 and 2 as having been acquired by the Board in May and June 2000.

Grimes' appraisal report contained comparable sales of the following properties described as follows:

Property No. 1: A vacant property located at 701 W. Maxwell Street, sold to the Board in June 2000, under threat of condemnation;
Property No. 2: An improved property located at 1232-34 S. Halsted Street sold to the Board in May 2000, (a) under threat of condemnation; and (b) commercially improved with a brick building;
Property No. 3: An improved property located at 1308 S. Halsted Street sold to the Board in October 1997, (a) under threat of condemnation; (b) commercially zoned and improved with a brick building used for retail purposes at the time of the sale; and (c) in which the owner invested $64,000 in improvements and which the owner continued to use as a retail store until the time the Board acquired the property in 2000.
During his deposition, Grimes acknowledged that it was improper to rely on sales made under threat of condemnation and conceded that such sales are "normally not considered" when appraising a condemned property. Grimes also testified that he attached no value to the improvements on the four comparable properties in his report, but that these four properties were superior to the Liberty property in location and accessibility.

On August 22, 2001, the Board filed a motion in limine to prohibit Grimes from using valuation data of the above three described "comparable" property sales as improper since they were sales made "under threat of condemnation." The Board submitted the affidavit of Ellen M. Hamilton, a University employee, who testified that these three properties were acquired by the University pursuant to a resolution of the Board dated September 10, 1992. Ms. Hamilton testified that the properties at 701 Maxwell Street and 1304 Halsted Street were acquired by the University in June 2000 and May 2000, respectively, and that the property located at 1308 Halsted Street was acquired by the University in August 2000. The Board also asserted that the three properties were not comparable to the Liberty property because they were zoned differently. On November 8, 2001, the trial court excluded evidence of these three "comparable" sales.

At the jury instruction conference prior to trial, Shapiro tendered Illinois Pattern Jury Instruction Civil, No. 300.85 (3d ed. 1995), pertaining to the reasonable probability of rezoning the Liberty property. The Board objected to the instruction because there had been no preliminary showing that it was reasonably probable that the property could or would be rezoned, as required under Illinois law. The trial court rejected Shapiro's proposed instruction. Thereafter, the Board questioned whether Grimes ...


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