from the Circuit Court of the 21st Judicial Circuit, Kankakee
County, Illinois. Appeal No. 3-15-0765 Circuit Nos. 14-ED-4,
14-ED-8 The Honorable Adrienne W. Albrecht and Ronald J.
Gerts, Judges, presiding.
JUSTICE delivered the judgment of the court, with opinion.
Presiding Justice Holdridge and Justice Lytton concurred in
the judgment and opinion.
1 Plaintiff, Enbridge Energy, Limited Partnership (Enbridge),
filed a condemnation suit to obtain easement rights over
certain farmland in Kankakee County so that it could build
and operate a new underground pipeline. The landowner
defendants opposed the suit for condemnation and filed a
traverse and motion to dismiss (traverse motion), which the
trial court denied. A jury trial was later held on the
condemnation complaint, and a directed verdict was entered
for Enbridge as to the amount of just compensation it was
required to pay to the landowners. The landowners appeal,
raising numerous issues. We affirm the trial court's
3 In April 2014, the Illinois Commerce Commission (ICC)
granted Enbridge a certificate of public convenience and
necessity to build and operate a new underground liquid
petroleum pipeline from Pontiac, Illinois, to Griffith,
Indiana. The new pipeline was to be known as "Line
78" and was to run across several properties in
Livingston, Grundy, Kankakee, Will, and Cook Counties. For
the most part, the path of Line 78 was to run parallel to and
in close proximity with an existing Enbridge pipeline-Line
62. To obtain the necessary easement rights for Line 78,
Enbridge was granted eminent domain authority by the ICC.
4 Prior to filing the instant lawsuit, Enbridge negotiated
settlements with many of the landowners involved. As to those
landowners with whom Enbridge could not reach an agreement on
just compensation, Enbridge filed condemnation complaints in
the trial court. The complaints (collectively referred to
hereinafter as the complaint) were later consolidated. A copy
of the ICC order was attached to the complaint. Three of the
landowners who did not settle with Enbridge were named as
defendants in the instant case. The dispute involved two
pieces of farmland in Kankakee County-the Fry property, owned
by Rochelle Fry, and the Bauer-Lamore property, owned by Anya
Bauer and Bernadette Lamore. In the trial court, Fry, Bauer,
and Lamore were represented by the same attorney, who now
represents all three of them in this appeal.
5 In response to the condemnation complaint, Fry filed a
traverse motion, alleging, among other things, that Enbridge
lacked proper eminent domain authority, that there was no
public use or necessity for the pipeline, and that Enbridge
had failed to negotiate with the landowners in good faith
prior to filing the condemnation suit. A similar traverse
motion was later filed on behalf of Bauer and Lamore.
Enbridge responded to Fry's traverse motion and attached
to its response sworn testimony, affidavits, and business
records. Those supporting documents established that Enbridge
had made numerous attempts to communicate with the landowners
about the easements and the pipeline project. Written offers
for easement rights were made to Fry in August 2013 and April
2014 and to Bauer and Lamore in April 2013 and October 2013.
The supporting documents also showed that in making its
offers to the landowners, Enbridge had been advised by a
licensed real estate appraiser who had conducted a land
market study in the counties that were going to be impacted
by the pipeline.
6 Unable to reach an agreement with the three landowners,
Enbridge sent a final offer letter to Fry in May 2014 and to
Bauer and Lamore in June 2014. The final offer letter was
also sent to the landowners' attorney. In that final
offer letter, Enbridge offered to pay Fry approximately $51,
000 as just compensation and to pay Bauer and Lamore
approximately $57, 000. A receipt detailing the basis for the
offer was provided to all three landowners and their
attorney. The final offer was set to expire approximately 11
days from the date of the letter. In addition, Enbridge
stated in the letter that it would file an eminent domain
action if the final offer was not accepted. None of the three
landowners or their attorney responded to those final offers.
7 A status hearing was held in September 2014, and Fry's
traverse motion was set for hearing. When the landowners'
attorney told the trial court that he would need some time
for discovery, the trial judge responded that as a general
matter, she did not postpone hearings on a motion to dismiss
pending discovery but that if the issue arose, she
"certainly [could] recess the hearing and give-allow
time for discovery." In the 90 days between the filing
of Fry's traverse motion and the date of the hearing on
the motion, the landowners did not notice or subpoena any
depositions, attempt to compel the appearance of any
witnesses or the production of any documents at the hearing,
or attempt to obtain any rulings from the trial court on any
discovery matter related to the traverse motion.
8 In October 2014, a hearing was held on Fry's traverse
motion. At the outset of the hearing, the trial judge
acknowledged that a motion had been faxed to the court by the
landowners' attorney requesting additional time to
conduct discovery. The landowners' attorney indicated in
court that he had filed a memorandum on the matter. Despite
the request for more time, the trial court went forward with
the hearing. The landowners' attorney stated that he was
ready to call witnesses but did not seek to do so and did not
disclose to the court who those witnesses were or what their
testimony would be. Ultimately, although the trial court did
not preclude either party from calling witnesses, no
witnesses were presented by either side, and the trial court
made its ruling on Fry's traverse motion based solely
upon the pleadings and supporting documents. After
considering those documents, researching the matter, and
listening to the arguments of the attorneys, the trial court
denied Fry's traverse motion, finding that there was
nothing presented to challenge the rebuttable presumption of
public use and necessity created by the ICC's order or
any evidence presented to refute Enbridge's showing that
its offer was made in good faith. Because Bauer and
Lamore's traverse motion was essentially identical to
that of Fry, the same ruling by the trial court was later
applied to that motion as well.
9 With the traverse motion (collective reference to both
motions) decided, the case proceeded toward a jury trial on
the condemnation complaint and the issue of just
compensation. In November 2014, the trial court entered a
case management order, which required that all written
discovery be completed by December 22, 2014, that all lay
witness depositions be completed by January 20, 2015, that
all controlled expert witness disclosures be completed by
February 2, 2015, and that all controlled expert depositions
be completed by February 20, 2015. The landowners
subsequently filed a counterclaim for the damage that the
pipeline would allegedly cause to the remainder property (the
property outside of the easement area).
10 On January 7, 2015, the landowners' attorney tendered
on a flash drive the work file of his proposed valuation
expert, appraiser Michael McCann. The file contained
approximately 7000 pages. Later that same month, landowner
Bauer was deposed and testified that she did not have
knowledge of the fair market value of the subject property
and that she was not qualified to determine a diminution in
value caused by the pipeline. Similarly, landowner Fry
testified in her deposition that she had no opinions,
numbers, or anything related to the fair market value of her
11 On February 2, 2015, within the timeframe set by the case
management order, Enbridge disclosed their expert valuation
witnesses, Joseph Batis and Andrew Brorsen. Brorsen had
completed two written appraisal reports, one for each of the
properties involved. Brorsen's reports contained his
comparable-sales data and an explanation of his opinions as
to valuation. Although depositions were taken of
Enbridge's valuation experts, the landowners'
attorney did not appear for those depositions.
12 The landowners disclosed their expert valuation witness,
appraiser McCann, and tendered a brief summary of his
appraisal opinions. McCann did not prepare a written
appraisal report, and Enbridge did not take McCann's
deposition. After the discovery deadline had passed, the
landowners submitted supplemental opinions wherein they
disclosed that the defendant landowners had belatedly
developed opinions of value based on discussions with their
attorney and research into environmental effects, stigma, and
fear caused by pipelines.
13 In a letter dated February 2015, Enbridge's attorneys
warned the landowners' attorney in a letter that the
controlled expert witness disclosures and the work file of
McCann failed to provide any explanation, analysis, or
specificity regarding comparable sales. Attached to the
letter were previously-served discovery requests to the
landowners asking for the comparable-sales sheets. A second
letter from Enbridge's attorneys, dated March 2015,
requested that the complete work file of McCann be tendered
in relation to the subject properties.
14 In April 2015, about 60 days after the discovery deadline
had passed and without obtaining leave of court, the
landowners issued a notice of discovery deposition for their
controlled expert witness, appraiser McCann. The
landowners' attorney, in a later proceeding, acknowledged
that the purpose of the deposition was to disclose
McCann's new opinions and pointed out that Enbridge had
not deposed McCann. On Enbridge's motion, the trial court
quashed the notice of deposition.
15 Prior to trial on the condemnation case, Enbridge filed a
number of motions in limine. As a result of one such
motion, which the trial court granted, the landowners were
barred from cross-examining Enbridge's witnesses
regarding the specific rights that Enbridge sought to
acquire-primarily, that Enbridge sought to acquire the right
to mortgage the easement. In another ruling, the trial court
barred landowners Fry, Bauer, and Lamore, each of whom had
inherited the properties, from testifying as to the value of
the properties. The trial court's ruling in that regard
was largely based upon the fact that both Fry and Bauer had
testified in their prior depositions that they had no idea as
to the value of the property. The trial court also ruled that
a generic disclosure of "individual [d]efendants"
that had been filed by the landowners in February 2015
pursuant to Illinois Supreme Court Rule 213(f)(3) (eff. Jan.
1, 2007) did not allow the landowners to call a witness to
testify at trial that had not been specifically identified.
16 The jury trial on the condemnation case and the issue of
just compensation began on Monday, June 8, 2015. After the
case was called for trial, the landowners' attorney
offered to voir dire his own controlled expert
witness, appraiser McCann, as a time-saving mechanism
because, according to the landowners' attorney, if the
trial court ruled that it was not going to allow McCann to
testify, the landowners would not have any expert opinion
testimony to present as to valuation and the case would
result in a directed verdict. A voir dire of McCann,
however, was not conducted at that time. In addition, the
landowners' attorney told the trial court that if neither
the landowners nor McCann were allowed to testify, a directed
verdict would result as well.
17 In its case-in-chief, Enbridge introduced an evidentiary
stipulation in which it agreed to pay for damage to crops and
improvements, to provide the landowners with reasonable
access to the properties during construction, and to restore
the properties following the completion of construction. One
of the main witnesses who was called to testify for Enbridge
was licensed real estate appraiser, Andrew Brorsen. After
describing his background and experience for the jury,
Brorsen testified at length on the issue of just
compensation. In sum, Brorsen determined and opined that the
total just compensation due for the Fry property was $6200
($3800 for the permanent easement across the property, $2400
for the temporary construction easement, and $0 for the
damage to the remainder property because, according to
Brorsen, there would be no damage to the remainder property)
and that the total due for the Bauer-Lamore property was
$6500 ($3400 for the permanent easement, $3100 for the
temporary construction easement, and $0 for the damage to the
remainder property). Brorsen explained to the jury in great
detail how he had reached those conclusions. Of relevance to
this appeal, Brorsen stated that he had used a compared-sales
approach to determine the fair market value of the whole
properties and that he had used a paired-sales approach, in
part, to determine that there was no damage to the remainder
properties as a result of the pipeline easement.
Brorsen's written appraisal reports on the two properties
were admitted into evidence, as were exhibits depicting the
comparable and paired sales selected by Brorsen in conducting
his appraisals. Brorsen acknowledged during his testimony
that he had made some mistakes in his appraisal reports; that
he had never in his career as an appraiser found that there
was damage to a remainder property as the result of a
pipeline easement; that in every single appraisal report he
prepared for Enbridge, he determined that the diminution in
value in the permanent easement area was 25%, regardless of
in which county the property was located; and that his firm
had been paid over $300, 000 for its work on the pipeline
18 During the afternoon of Thursday, June 11, 2015, after
Enbridge had rested or was preparing to rest its case, the
landowners' attorney indicated that he planned to call
multiple witnesses, including his controlled expert witness
on valuation, appraiser McCann. Enbridge was given leave by
the trial court to voir dire McCann prior to his
testimony. The voir dire, however, could not be
conducted until the following morning. Outside the presence
of the jury, the trial court and the attorneys discussed when
the further proceedings in this case would take place. The
following conversation ensued:
"THE COURT: Okay. What I'm trying to figure out is
what to tell the jury. My inclination is to tell them to call
to see whether or not they need to come back on Monday
because I'm unavailable tomorrow afternoon and it
doesn't sound like we're gonna get anywhere close to
them until tomorrow.
[AN ENBRIDGE ATTORNEY]: I think that's accurate. I think
that if we-that tomorrow we could accomplish the voir dire of
Mr. McCann. That's- that's what I think we'll get
finished so that would be my-I think that's reasonable.
THE COURT: Okay. I need to go check-do-I need to go check on
the logistics of it but we're-have reorganized the entire
jury system in an effort to save money.
(Whereupon, there was a recess so taken.)
So they're gonna call tomorrow afternoon to see if they
need to come in on Monday.
[AN ENBRIDGE ATTORNEY]: Judge we do have one housekeeping
matter before we break for the day so I don't know if you
want to release the jury.
THE COURT: I want to release the jury because I'm trying
to cause the least inconvenience to them." ¶ 19
After the jury was brought back into the courtroom, the
following was stated:
"THE COURT: Okay. Do you all still have pieces of paper
on your tablets? Okay.
THE BAILIFF: Well, I told them to leave their tablets in
there. Are they gonna need 'em?
THE COURT: Well they're gonna need this phone number,
which I'm gonna give you, and they're gonna copy down
when they go to leave. Okay. Be seated. I told you when we
started we [sic] that this is a legally technical
case and there would be lots of interruptions, and I would
keep them to a minimum. Well I'm trying to figure out how
to cause you the least amount of inconvenience. There are
some matters that have to be-come up tomorrow that-and I-I
also have to tell you that I have a mandatory Judge's
meeting-quarterly Judge's meeting tomorrow afternoon.
There are some matters that are gonna happen tomorrow morning
that could possibly result in the case not-in us not needing
you. I don't know that, and I won't know that, until
tomorrow afternoon. So you're definitely not gonna be
needed tomorrow, and what I need you to do is call the jury
commissioner, whose number I have right here, tomorrow
afternoon to find out whether or not you need to come back on
Monday. Okay? Any questions about that? Okay.
UNIDENTIFIED JUROR: Any certain time to call? 2:00? 3:00?
THE COURT: I will know by noon so after 1:30 and the
courthouse closes at 4:30. Yes?
THE BAILIFF: But when they call this number it will tell them
when to report back?
THE COURT: You're gonna be talking to Diane, the jury
commissioner directly. You're not gonna get a message.
It's not a voice mail. You'll be talking directly to
a human person.
UNIDENTIFIED JUROR: Do we identify the case then or
THE COURT: You-you call and say does Judge Albrecht need to
[sic] me ...