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Enbridge Energy (Illinois), L.L.C. v. Kuerth

Court of Appeals of Illinois, Fourth District

December 13, 2016

DEBRA S. KUERTH, as Trustee of the Debra S. Kuerth Trust, Under the Declaration of Trust Dated January 29, 2007; THE DEBRA S. KUERTH TRUST, Under Declaration of Trust Dated January 29, 2007; NON-RECORD CLAIMANTS; and UNKNOWN OWNERS, Defendants-Appellants. ENBRIDGE ENERGY (ILLINOIS), L.L.C., n/k/a ILLINOIS EXTENSION PIPELINE COMPANY, Plaintiff-Appellee,

         Appeal from Circuit Court of Livingston County Nos. 14ED12, 14ED13 Honorable Mark A. Fellheimer, Judge Presiding.

          JUSTICE STEIGMANN delivered the judgment of the court, with opinion. Justices Holder White and Pope concurred in the judgment and opinion.



         ¶ 1 In April 2014, the Illinois Commerce Commission (Commission) granted plain- tiff, Enbridge Energy (Illinois), L.L.C., now known as the Illinois Extension Pipeline Company (IEPC), eminent-domain authority to acquire easements over certain real estate for the planned construction of an approximately 170-mile liquid petroleum (oil) pipeline project known as the Southern Access Extension (SAX).

         ¶ 2 In July 2014, IEPC filed separate "complaints for condemnation of permanent and temporary easements for common carrier pipeline" against defendants (1) Debra S. Kuerth and the Debra S. Kuerth Trust (Debra Trust) (Livingston County case No. 14-ED-12; this court's case No. 4-15-0519) and (2) Kenneth L. Kuerth and Diane Kuerth (Kuerths) (Livingston County case No. 14-ED-13; this court's case No. 4-15-0520) (collectively, landowners) seeking to determine the just compensation for its easement interests in landowners' respective properties. Thereafter, landowners each filed a "traverse and motion to dismiss" (traverse motion), requesting dismissal of IEPC's complaints for condemnation. The trial court later denied landowners' traverse motion.

         ¶ 3 After IEPC presented evidence at a May 2015 jury trial and conducted a voir dire of landowners' damages valuation expert, the trial court granted IEPC's oral motion to exclude the expert's valuation testimony. IEPC then moved for directed verdicts on its condemnation suits and landowners' amended counterclaim for damages to the remainder. Following argument, the court (1) granted directed verdicts in IEPC's favor and (2) awarded compensation of $7000 in case No. 14-ED-12 and $6700 in case No. 14-ED-13 to landowners.

         ¶ 4 Landowners appeal, raising numerous claims that challenge the trial court's condemnation and traverse judgments. For the reasons that follow, we vacate the court's denial of landowners' traverse motion and remand with directions for further proceedings.

         ¶ 5 I. BACKGROUND

         ¶ 6 A. Procedural History

         ¶ 7 We provide the following brief synopsis of the pertinent litigation involving the SAX project to place landowners' appeals in context.

         ¶ 8 1. IEPC's Application for a Certificate in Good Standing and Eminent-Domain Authority

         ¶ 9 In August 2007, IEPC applied for a certificate in good standing and other relief pursuant to section 15-401 of the Common Carrier by Pipeline Law (Pipeline Law) (220 ILCS 5/15-401 (West 2006)). (The Pipeline Law appears under article XV of the Public Utilities Act (220 ILCS 5/1-101 to 20-120 (West 2006)).) IEPC sought the Commission's authorization to (1) construct, operate, and maintain the SAX pipeline; and (2) acquire, when necessary, private property under eminent-domain authority to install and maintain the SAX pipeline as permitted by section 8-509 of the Public Utilities Act (220 ILCS 5/8-509 (West 2006)). IEPC described the proposed SAX project as a 36-inch diameter underground oil pipeline originating from IEPC's Flanagan terminal located near Pontiac, Illinois, and terminating approximately 170 miles south, at IEPC's Patoka terminal located near Patoka, Illinois. The planned SAX project traversed 679 tracts of land located in the counties of Livingston, McLean, DeWitt, Macon, Shelby, Christian, Fayette, and Marion. IEPC sought (1) a 60-foot wide permanent easement right-of-way for the pipeline and (2) an additional 60-foot temporary easement to facilitate construction.

         ¶ 10 In July 2009, the Commission issued an order in docket No. 07-0446, granting IEPC a certificate in good standing but denying IEPC's request for eminent-domain authority. As to eminent domain, the Commission urged, instead, that IEPC continue negotiations with landowners who had declined the compensation IEPC had offered in exchange for the aforementioned easements on the landowners' respective properties. The Commission's order provided, however, that IEPC could renew its request for eminent-domain authority by "demonstrating that it has made reasonable attempts to obtain easements, through good-faith negotiations."

         ¶ 11 Some affected landowners (Intervenors) appealed the Commission's grant of a certificate in good standing, and this court affirmed. Pliura Intervenors v. Illinois Commerce Comm'n, 405 Ill.App.3d 199, 200, 942 N.E.2d 576, 578 (2010) (Intervenors I). Specifically, we rejected Intervenors' argument that the Commission erred by determining that (1) IEPC was fit, willing, and able to construct, operate, and maintain an oil pipeline; and (2) a public need existed for the pipeline. Intervenors I, 405 Ill.App.3d at 208-09, 942 N.E.2d at 584-85. The Supreme Court of Illinois later denied Intervenors' petition for leave to appeal. Pliura Intervenors v. Illinois Commerce Comm'n, 239 Ill.2d 589, 943 N.E.2d 1108 (2011) (table).

         ¶ 12 2. IEPC's Renewed Petition for Eminent-Domain Authority

         ¶ 13 In July 2013, IEPC renewed its request for eminent-domain authority, seeking to condemn 148 of the 679 tracts of land traversed by the planned SAX project route because the owners of those respective properties had either (1) refused to negotiate with IEPC or (2) declined IEPC's compensation offers despite extensive negotiations. (IEPC's continued negotiations reduced the number of "holdout" landowners from 148 to 127, meaning approximately 81% of landowners reached an agreement with IPEC.)

         ¶ 14 In December 2013, an administrative law judge (ALJ) conducted a hearing on IEPC's request for eminent-domain authority. A senior engineer employed by the Commission testified, in pertinent part, that approval to exercise eminent-domain authority required IEPC to show that (1) reasonable attempts were made to acquire the outstanding land rights through good-faith negotiations and (2) additional attempts to acquire the land rights at issue would have been unsuccessful. In evaluating those metrics, the engineer stated that the Commission considers numerous factors which include-but are not limited to-the following: (1) the number and extent of the petitioner's contacts with the landowner, (2) whether the petitioner explained its compensation offer to the landowner, (3) whether the compensation the petitioner offered was comparable to offers made to similarly situated landowners, (4) petitioner's efforts to address landowner concerns, and (5) the likelihood that further negotiations would be successful. After testifying to IEPC's efforts as to each of these five factors, the engineer recommended that the Commission approve IEPC's petition for eminent-domain authority. In April 2014, the ALJ recommended that the Commission grant IEPC eminent-domain authority.

         ¶ 15 Later that month, the Commission issued its written order, in which it (1) accept- ed the ALJ's recommendation and (2) granted IEPC eminent-domain authority. In so doing, the Commission explained that the grant of a request for eminent-domain authority under section 8-509 of the Public Utilities Act requires "a utility [to] show that it made a reasonable attempt to acquire the property at issue." In this regard, the Commission noted that the aforementioned five factors "should be considered, among others, in determining whether the use of eminent domain is necessary." The Commission then recognized that as to the aforementioned five factors, sufficient evidence was presented to show that (1) the number, nature, and extent of [IEPC's] contacts with the landowners had been adequate; (2) IEPC adequately explained its offer of compensation to landowners; (3) IEPC's offers were comparable to offers made to similarly situated landowners, noting that IEPC's offers for the easements were 125% of fee value; (4) IEPC made an effort to address landowner concerns by making adjustments to the pipeline route to avoid certain structures, land features, or wooded areas; and (5) "given the large numbers of holdouts and the length of time that has elapsed during the negotiation phase, the situation is unlikely to change on a large scale absent the Commission granting [IEPC] the right to exercise eminent domain."

         ¶ 16 Some Intervenors affected by the Commission's grant of eminent-domain authority appealed, and this court affirmed. Pliura Intervenors v. Illinois Commerce Comm'n, 2015 IL App (4th) 140592-U (Intervenors II). Specifically, we rejected Intervenors' argument that the Commission's grant of eminent-domain authority was not supported by substantial evidence that IEPC engaged in good-faith negotiations. Id.

         ¶ 17 3. IEPC's Motion To Reopen

         ¶ 18 In May 2014, IEPC filed a "Motion to Reopen and Amend Order Concerning Di- ameter of the [SAX] Pipeline, " requesting an amendment to the July 2009 certificate in good standing the Commission issued in docket No. 07-0446. IEPC's amendment sought only to reduce the SAX pipeline diameter from 36 to 24 inches.

         ¶ 19 In support of its motion, IEPC alleged that uncertain economic conditions and market demand for a different grade of crude oil caused IEPC to reevaluate the original parameters of the SAX project. Based on these changed factors, IEPC calculated that the capacity requirements of the SAX pipeline would be approximately 300, 000 barrels per day (bpd) of liquid petroleum, which "can be readily accommodated by a 24-inch outside diameter pipeline." (In their August 2007 application for a certificate in good standing, IEPC determined that the capacity of the 36-inch pipeline was approximately 400, 000 bpd.) With regard to its 300, 000 bpd approximation, IEPC had received long-term contractual commitments from Marathon Petroleum Company (Marathon) and another undisclosed oil shipper for a total volume of approximately 210, 000 bpd. IEPC pledged that the remaining 90, 000 bpd capacity would be available to other shippers of light and heavy crude.

         ¶ 20 In June 2014, the Commission reopened docket No. 07-0446, and at a later evidentiary hearing, an ALJ considered (1) written and oral direct testimony and (2) oral cross-examination testimony on IEPC's May 2014 motion to amend. Thereafter, the parties filed, in pertinent part, additional posthearing briefs. In its November 2014 posthearing reply brief, IEPC acknowledged that in July 2014, Enbridge Energy Company, Inc. (IEPC's parent company), agreed to sell to a 35% equity interest in the SAX project to Marathon.

         ¶ 21 In December 2014, the ALJ recommended that the Commission grant IEPC's motion to amend, subject to certain conditions. Later that month, the Commission determined that public convenience and necessity required issuance of the certificate as amended to authorize a 24-inch pipeline. Pertinent to this appeal, the Commission found that (1) a public need for the 24-inch pipeline existed; (2) no other substantial changes specified in the original certificate, such as pipeline route and easement width, were proposed or granted; and (3) the 24-inch pipeline would not impose additional burdens on landowners than the originally proposed 36-inch pipeline.

         ¶ 22 Intervenors appealed, arguing that the Commission erred by amending the July 2009 certification because (1) the Commission's findings were not supported by substantial evidence; (2) IEPC's certificate in good standing had expired; and (3) IEPC was no longer a common carrier by pipeline because of self-imposed limits that excluded the public. As to its last argument, Intervenors contended that (1) IEPC lost its certification by selling a 35% interest in the SAX project to Marathon; (2) Marathon's 35% interest converted the SAX project into a private pipeline; and (3) the amended 24-inch SAX pipeline discriminated against the general public by not making pipeline capacity available on an equal basis.

         ¶ 23 In March 2016, this court affirmed the Commission's order, rejecting Intervenors' (1) sufficiency-of-the-evidence, (2) expiration, and (3) private-pipeline claims. Pliura Intervenors v. Illinois Commerce Comm'n, 2016 IL App (4th) 150084-U (Intervenors III). The Supreme Court of Illinois later denied Intervenors' petition for leave to appeal. Pliura Intervenors v. Illinois Commerce Comm'n, No. 120757 (Ill. Sept. 28, 2016) (table).

         ¶ 24 B. The Issues on Appeal

         ¶ 25 The issues presented in this appeal concern primarily the trial court's rulings as to the following issues: (1) IEPC's condemnation suit, which includes claims regarding the underlying evidentiary rulings; and (2) landowners' traverse motion. We consider landowners' claims in that order.

         ¶ 26 1. The Parties' Pertinent Filings

         ¶ 27 a. IEPC's Final Offers and Condemnation Filings

         ¶ 28 In separate letters dated May 19, 2014, IEPC proffered a "final offer" of $41, 873 to the Debra Trust and $40, 305 to the Kuerths "for a [60-foot] permanent right of way and [60-foot] temporary work space to be used as [a] right of way for the [SAX]." IEPC's respective offers also reflected compensation for "any applicable crop damages." IEPC informed landowners that (1) the final offer would expire in 10 days; and (2) if landowners rejected the final offer, IEPC "will have no choice but to file suit against you to condemn the right-of-way property at issue."

         ¶ 29 In July 2014-after defendants failed to respond to the final offer-IEPC filed separate "complaints for condemnation of permanent and temporary easements for common carrier pipeline" against landowners, seeking to determine just compensation for its corresponding interest in landowners' respective properties. Appended to its motion was the Commission's April 2014 order, which granted IEPC eminent-domain authority in docket No. 13-0446.

         ¶ 30 b. Landowners' Traverse Motions and Discovery Filings

         ¶ 31 Later in July 2014, landowners each filed a traverse motion in their respective cases, alleging that the following circumstances required dismissal of IEPC's condemnation filing:

"1. [IEPC] is not properly vested with authority to acquire the property of [d]efendants by proceeding in eminent domain.
2.*** [T]he property sought to be acquired *** is not necessary or convenient for the purpose for which it is sought to be taken.
3.*** [T]he amount of property sought to be taken *** is in excess of [IEPC's] needs.
4.[IEPC] does not seek to use the property sought *** for a public use.
5.*** [T]here has been no bona fide attempt to agree with the [d]efendants as to the just compensation and damages to be paid for the property sought to be taken.
6.*** [T]he project for which [IEPC] seeks to acquire the lands of the [d]efendants does not constitute a public convenience or necessity.
7.*** [T]he project does not constitute a common carrier because of restrictions on access to the proposed pipeline.
8.[IEPC's] authority to acquire the property by eminent domain is limited to a project that [IEPC] is no longer pursuing and is not transferrable to a new and different project.
9.[IEPC] does not possess the legal authority to construct the pipeline *** because it has no certificate in good standing *** for the project it is pursuing and the certificate it previously obtained is expired and is not transferable to a different project."

         (In case No. 14-ED-12, Debra Trust's traverse motion listed only the first seven allegations.)

         ¶ 32 In October 2014, landowners filed a memorandum in support of their traverse motions that asserted, in part, that a traverse motion "is not the equivalent" of a motion to dismiss under section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 2014)). Specifically, landowners alleged that "[t]he filing of a traverse *** motion *** leads to a hearing ***; however, *** the hearing resembles a trial more than it does a conventional motion hearing." (Emphasis in original.) Landowners then asserted that "[e]ach point raised in the traverse [motion], to be fully addressed by [landowners] in the required final evidentiary hearing[, ] will require additional discovery not available to the [landowners] prior to filing."

         ¶ 33 Later that month, landowners filed a "consolidated memorandum on the need for discovery prior to the traverse hearing." Landowners contended that discovery was required to show that IEPC "abused its power" by (1) "attempting to pursue a project for which they have no authority, " (2) "proceeding in this condemnation action without negotiating in good faith, " (3) "attempting an unconstitutionally excessive taking, " (4) "authorizing an unconstitutional taking for private benefit, " and (5) "attempting an unconstitutional taking that is not for public use."

         ¶ 34 c. Landowners' Amended Counterclaim

         ¶ 35 In November 2014, landowners filed a "counterclaim for damages to the remainder, " which they later amended. Landowners' April 2015 amended counterclaim sought compensation from IEPC for the "substantial, irreparable, and unavoidable" damages to the remainder of their respective properties caused by the impending installation of the SAX pipeline.

         ¶ 36 d. IEPC's Motions in Limine

         ¶ 37 In March 2015, IEPC filed a series of motions in limine seeking to bar the testimony of certain witnesses landowners disclosed pursuant to Illinois Supreme Court Rule 213(f) (eff. Jan. 1, 2007). In so doing, IEPC noted the following:

"In this condemnation case involving a partial taking, the only question for the jury to decide is the just compensation to be paid to the owner of the property sought to be condemned. [Citation.] Just compensation is the fair market value of the subject property at its highest and best use on the date of the filing of the complaint to condemn. [Citation.] [Landowners] have brought a counterclaim for damages to the remainder, which is also measured by calculating the fair market value of landowners' properties, both immediately before and after the taking. [Citation.] Thus, the only specialized knowledge that would assist the trier of fact is expertise in calculating the fair market value of the property." (Internal quotation marks omitted.)

         ¶ 38 i. Carlisle Kelly and Daniel Summann

         ¶ 39 IEPC asked the trial court to bar the testimony of Carlisle Kelly and Daniel Summann, whom landowners disclosed as "independent expert witnesses" as defined by Rule 213(f)(2) (Ill. S.Ct. R. 213(f)(2) (eff. Jan. 1, 2007)). IEPC alleged that Kelly and Summann were not professional appraisers qualified to provide expert opinions on the fair-market value of real estate. Instead, Kelly and Summann were expected to testify about their personal experience with an IEPC-owned, above-ground pipeline located on their respective properties. IEPC argued that such testimony was "irrelevant, speculative, unfairly prejudicial, and an improper legal conclusion."

         ¶ 40 ii. Landowners

         ¶ 41 In January 2015, IEPC deposed landowners separately and asked each whether they could provide an estimate of the fair-market value of their respective properties. Landowners confirmed that they either had "no idea, " no opinion, or, in the case of Kenneth, that any valuation he provided would be based on "speculation."

         ¶ 42 In February 2015, landowners filed "Consolidated *** Supplemental Rule 213(f) Disclosures, " in which Debra, Diane, and Kenneth indicated their intent to provide an opinion as to (1) the fair-market value of their properties before and after installation of the SAX project pipeline and (2) the damages incurred to the value of their remaining property after installation of the SAX project pipeline. Each landowner averred to the following basis for their opinions:

"[E]xperience as an owner of the land, *** knowledge of the local land prices, research into local area land sales, discussions with local area land owners, discussions with [an] attorney, research into the environmental effects of pipelines and research onto the stigma and fear caused by pipelines."

         ¶ 43 In April 2015, landowners filed a document entitled "Consolidated *** Addition- al Supplemental Rule 213(f)(1) Disclosures, " in which Debra and Kenneth reconfirmed their intent to provide lay opinion testimony as to the fair-market value of their properties. Debra and Kenneth revised the basis for their respective opinions, as follows:

"[The] basis for these opinions is *** knowledge of the real estate market for Livingston County, further research into farm sales, conversations with farm real estate brokers, conversations with farm managers, *** experience as a landowner, *** under-standing of the risks associated with the construction of the pipeline through the use of the temporary and permanent easements, including: interference with the rest of the property's farming operations during the construction period and the damages that will occur to the land as a result of the construction process."

         Debra and Kenneth also stated that based on their review of the "Enbridge Contractor Safety Program Manual, 2013 edition, " mandatory hydrostatic testing would create an unsafe zone for 200 feet on either side of the proposed pipeline, which they opined would "likely create fear and stigma associated with the pipeline and negatively impact the remainder value of their property."

         ¶ 44 IEPC acknowledged that landowners are competent generally to render opinions concerning the value of their land but sought to bar landowners' valuation testimony because the admissions landowners made under oath at their January 2015 depositions that they had no opinion regarding the value of their land directly contradicted claims landowners made in their subsequent Rule 213(f) disclosures.

         ¶ 45 iii. Michael S. McCann

         ¶ 46 IEPC also sought to bar the testimony of Michael S. McCann, whom landowners disclosed as their "controlled expert witness" under Rule 213(f)(3). Landowners noted, in pertinent part, that McCann's expected testimony concerned the following topics:

"[McCann] will testify to the concept of and his opinions regarding the 'value of the whole, ' value of the temporary easement, value of the permanent easement, fair market value *** before the taking, [fair market value] after the taking, and the damages to the remainder property after the taking and how these concepts apply to these matters. *** McCann will testify to the fair cash market value of the property involved in the condemnation."

         ¶ 47 Based on discussions with landowners' counsel, IEPC learned that McCann planned to base his valuation, in pertinent part, on recent easement purchases IEPC transacted in Will County. Specifically, landowners' counsel asserted that "[i]t is our position these represent comparable sales, and will be used to determine the value of an easement." Based on these representations, IEPC sought to bar McCann's land valuation as "wildly speculative."

         ¶ 48 2. The Hearings on the Parties' Respective Filings

         ¶ 49 a. Landowners' Traverse Motions and Requests for Discovery

         ¶ 50 We note that at the time of the October 2014 hearing on landowners' traverse mo- tions and discovery filings, (1) this court had published Intervenors I, which affirmed the Commission's July 2009 grant of a certificate in good standing issued to IEPC in docket No. 07-0446; (2) Intervenors II-which challenged the Commission's grant of eminent-domain authority to IEPC in docket No. 13-0446-was pending before this court; and (3) the parties were aware that pending before the Commission was IEPC's motion to amend the certificate in good standing in docket No. 07-0466 to reflect the installation of a 24-inch diameter pipeline instead of a 36-inch diameter pipeline, which this court had yet to consider in Intervenors III.

         ¶ 51 To facilitate the reader's understanding of a traverse motion, we provide a brief synopsis of the motion's purpose, as follows:

"A traverse and motion to dismiss challenge plaintiff's right to condemn defendants' property. [Citations.] It is settled law in Illinois that when a traverse is filed, the burden is on the plaintiff to make a prima facie case of the disputed allegations. [Citations.] A prima facie case for the necessity of a condemnation is made by introducing a resolution or ordinance of the governing body which makes a finding that the condemnation is necessary. [Citations.] The agency that has been granted the power of eminent domain, rather than the court, has the authority to decide whether the exercise of the power is necessary to achieve an authorized purpose. Absent a clear abuse of this authority, the court will not inquire into the need or propriety of its exercise. [Citations.] Accordingly, where plaintiff establishes a prima facie case, it becomes the burden of defendant to show that there was an abuse of discretion by the governing board. [Citations.]" Lake County Forest Preserve District v. First National Bank of Waukegan, 154 Ill.App.3d 45, 51, 506 N.E.2d 424, 428 (1987).

         ¶ 52 At the hearing on landowners' traverse motions, the parties acknowledged initial- ly that trial courts in Kankakee, McLean, and Will Counties had considered and rejected requests for discovery prior to conducting traverse hearings from similarly situated landowners. Landowners also acknowledged that (1) courts in Will and Kankakee Counties had denied the associated traverse motions and (2) the McLean County court had yet to consider traverse motions.

          ¶ 53 Landowners argued that discovery was required before the traverse motion hear- ing to provide further inquiry into whether IEPC (1) was constructing a different pipeline than the SAX project the Commission approved in July 2009 under docket No. 07-0446; (2) provided "bona-fide, good-faith offers" and conveyed the bases for its offers to the affected landowners; and (3) was constructing a private pipeline by virtue of Marathon's ownership interest in the SAX project. Landowners also wanted to conduct discovery to obtain "a chance to question the individuals that have submitted affidavits" regarding their land-valuation methodology.

         ¶ 54 In response, IEPC argued that the Commission issued two relevant orders in docket Nos. 07-0446 (granting IEPC certification to build SAX) and 13-0446 (granting IEPC eminent-domain authority). IEPC posited that docket No. 07-0446 was a final order by virtue of this court's conclusion on appeal that the Commission correctly determined (1) IEPC "was fit, willing, and able to construct, operate, and maintain" the SAX project; and (2) the SAX project satisfied a public need. Intervenors I, 405 Ill.App.3d at 207-09, 942 N.E.2d at 583-85. As to docket No. 13-0446, IEPC noted that despite Intervenors' appeal to this court, the Commission's grant of eminent-domain authority remained a valid, enforceable order. Because landowners had appeared as Intervenors in those proceedings, IEPC posited that they are not entitled to challenge the Commission's determinations de novo in the trial court.

         ¶ 55 After considering further argument by the parties-which included landowners' claim that the IEPC's certificate in good standing had expired-the trial court took a short recess. Upon reconvening, the court acknowledged that it had reviewed portions of pertinent transcripts and associated orders in the Kankakee, McLean, and Will Counties cases, which had considered the same discovery and traverse arguments. The court explained that in so doing the court was "formulating [its] own opinions" and determining whether those cases "reconcile with [the court's] thoughts or not."

         ¶ 56 The trial court then denied landowners' request for discovery prior to the traverse hearing. Specifically, the court determined, as follows:

"[The court is] looking here just from a practical standpoint, putting it all together, that if discovery is not going to be permitted on those issues, then [the court] think[s] that would go hand in hand with denial of the motion to dismiss and traverse. *** [I]f it was going to be a de novo review and discovery was going to be permitted, then it would make it relevant and material to the motion to dismiss and motion to traverse."

         With regard to landowners' claim that IEPC failed to negotiate in good faith, the court found that IEPC's May 2014 final offer was sufficient to show adequate negotiation given landowners' failure to respond to IEPC's final offer.

         ¶ 57 b. IEPC's Motions in Limine

         ¶ 58 In May 2015, the trial court made the following rulings on ...

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