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Dep't of Transportation ex rel People v. 151 Interstate Road Corp.

April 15, 2004

THE DEPARTMENT OF TRANSPORTATION EX REL. THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT,
v.
151 INTERSTATE ROAD CORPORATION ET AL., APPELLEES.



The opinion of the court was delivered by: Justice Rarick

Docket No. 95042-Agenda 25-September 2003.

Opinion filed February 5, 2004. Modified on Denial of Rehearing April 15, 2004.

This condemnation action presents a question of law on which our appellate court is divided: May a condemning authority's good faith in negotiating with a property owner be challenged in an interlocutory appeal brought pursuant to section 7-104(b) of the Eminent Domain Act (735 ILCS 5/7-104(b) (West 2000))?

The Fifth District of the appellate court was the first to consider the question. It answered in the negative, holding that whether a condemning authority has negotiated in good faith is not among the issues that can be raised in an interlocutory appeal under the statute. See Southwestern Illinois Development Authority v. National City Environmental, L.L.C., 304 Ill. App. 3d 542 (1999), aff'd, 199 Ill. 2d 225 (2002). Although our court affirmed the Fifth District's judgment, we did so without addressing the question now at issue. The question was subsequently considered by the Second District of the appellate court in the case before us today. It rejected the Fifth District's view and concluded that the issue of good faith can be considered on interlocutory review pursuant to section 7-104(b). 333 Ill. App. 3d 821. The Third District of the appellate court is in agreement with the Second District's view. See Department of Transportation ex rel. People v. Hunziker, 342 Ill. App. 3d 588 (2003).

We granted the Illinois Department of Transportation (IDOT) leave to appeal from the Second District's judgment to resolve the conflict. 177 Ill. 2d R. 315. We also allowed the Forest Preserve District of Du Page County to file a brief as amicus curiae in support of IDOT. 155 Ill. 2d R. 345. For the reasons that follow, we now affirm in part, reverse in part and remand to the circuit court.

The pertinent facts are these. In May of 2001, IDOT filed a petition in the circuit court of Du Page County to acquire, through eminent domain, certain property owned by 151 Interstate Road Corporation (Interstate Road). The action was brought pursuant to the Eminent Domain Act (735 ILCS 5/7-101 et seq. (West 2000)). The subject property was located in the City of Addison and was needed by IDOT for a project to improve and repair a public highway known as U.S. Route 20. Five parcels were involved. In two of the parcels, IDOT sought to obtain a fee simple interest. In the remaining three, IDOT requested only a temporary easement.

IDOT filed a similar eminent domain action against Jane A. Green in her capacity as trustee of two revocable trusts which owned additional parcels of land near Interstate Road's property.*fn1 IDOT sought to acquire the trusts' property for the same highway project involved in the Interstate Road matter. Jane Green's family controls Interstate Road, and the two proceedings were consolidated by the circuit court on IDOT's motion. For purposes of this opinion, Interstate Road and Green will be referred to collectively as "the Owners."

The Owners filed a traverse and motion to dismiss in each proceeding asking the circuit court to dismiss IDOT's petitions and to award them their costs, expenses and reasonable attorney fees. As grounds for their motions, the Owners alleged that IDOT's petitions were fatally defective because they failed to plead compliance with section 7-102.1 of the Eminent Domain Act (735 ILCS 5/7-102.1 (West 2000)), which requires the state and its agencies to take certain action before initiating eminent domain proceedings in the circuit court. The Owners further alleged that IDOT's petitions should be dismissed because IDOT had not complied with the substantive provisions of section 7-102.1 and had not made a bona fide attempt to reach a negotiated agreement with them with respect to the compensation and damages to be paid for the subject property.

A two-day hearing on the foregoing motions was held in July of 2001. At the conclusion of that hearing, the circuit court denied the Owners' motions to dismiss and scheduled a hearing on a motion by IDOT for immediate vesting of title. See 735 ILCS 5/7-103 (West 2000). After hearing evidence and the arguments of counsel regarding that motion, the court made a determination pursuant to section 7-104(b) of the Eminent Domain Act (735 ILCS 5/7-104(b) (West 2000)) that IDOT had authority to exercise the right of eminent domain, that the property sought to be taken is subject to the exercise of such right and that such right was not being improperly exercised in this proceeding. The court's order, filed in August of 2001, then granted IDOT's motion for immediate vesting of title and made a preliminary finding regarding the amount constituting just compensation.

The Owners were dissatisfied with the circuit court's ruling and filed an immediate appeal under Supreme Court Rule 307(a)(7), which authorizes interlocutory appeals as of right from orders "determining issues raised in proceedings to exercise the right of eminent domain under section 7-104 of the Code of Civil Procedure [735 ILCS 5/7-104]." 188 Ill. 2d R. 307(a)(7). As grounds for their appeal, the Owners argued that the circuit court erred in determining that IDOT's right of eminent domain was not being improperly exercised in this case. According to the Owners, IDOT exercised its right of eminent domain improperly because it failed to make a good-faith attempt to negotiate with them before filing suit and did not comply with the prelitigation notice requirements set forth in section 7-102.1(d) of the Eminent Domain Act (735 ILCS 5/ 7-102.1(d) (West 2000)). As an alternative basis for challenging the circuit court's order, the Owners argued that IDOT's petitions were defective because they should have alleged that IDOT had complied with section 7-102.1(d)'s notice requirements, but did not.

The appellate court rejected the Owners' challenge to the adequacy of IDOT's petitions. It held that neither the terms of the Eminent Domain Act nor the applicable case law requires a condemnor to plead compliance with section 7-102.1(d)'s notice requirements. It further held that the Owners had suffered no prejudice as a result of the alleged defects in the pleadings and that to allow them to challenge the sufficiency of the petitions would violate "the spirit of the waiver rule." 333 Ill. App. 3d at 839.

Although the appellate court did not believe IDOT's petitions should have been dismissed on the pleadings, it found the Owners' substantive claims to be meritorious. Specifically, it held that the circuit court's determination that IDOT had negotiated in good faith before filing suit was contrary to the manifest weight of the evidence. It also held that IDOT had failed to properly comply with section 7-102.1(d)'s prelitigation notice requirements. Accordingly, it reversed the circuit court's order denying the Owners' traverse and motion to dismiss. It also remanded with directions to vacate the subsequent orders fixing preliminary just compensation and vesting title in IDOT and to address the Owners' claim for an award of their attorney fees and costs.

IDOT petitioned for rehearing. The appellate court denied that petition in a lengthy supplemental opinion, which reaffirmed the court's construction and application of the relevant statutory provisions. This appeal by IDOT followed.

As grounds for its appeal, IDOT contends that the issue of whether it had negotiated with the Owners in good faith was a matter that the Owners should not have been permitted to raise in an interlocutory appeal. Whether a condemning authority's good faith in negotiating with a property owner may be challenged in an interlocutory appeal is a question over which our appellate court is divided. The appellate court in the case before us held that a condemning authority's good faith may be challenged in an interlocutory appeal. Its view is shared by the Third District. See Department of Transportation ex rel. People v. Hunziker, 342 Ill. App. 3d 588 (2003). The Fifth District has taken a contrary view. See Southwestern Illinois Development Authority v. National City Environmental, L.L.C., 304 Ill. App. 3d 542 (1999), aff'd, 199 Ill. 2d 225 (2002). Because this question is jurisdictional in nature, we shall consider it first.

Article VI, section 6, of the 1970 Illinois Constitution (Ill. Const. 1970, art. VI, ยง6) provides that final judgments may be appealed as a matter of right from the circuit court to the appellate court. There is no corresponding constitutional right to appeal from interlocutory orders of the circuit court. Rather, article VI, section 6, vests this court with the authority to provide for such appeals, by rule, as it sees fit. Except as specifically provided by our rules, the appellate court is without jurisdiction to ...


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