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Enbridge Pipeline (Illinois), LLC v. Temple

Court of Appeals of Illinois, Fourth District

July 6, 2017

ENBRIDGE PIPELINE (ILLINOIS), LLC, n/k/a Illinois Extension Pipeline Company, LLC, Plaintiff-Appellee,
v.
CARLA S. TEMPLE, as Trustee of the Carla S. Temple Family Trust; NONRECORD CLAIMANTS; and UNKNOWN OWNERS, Defendants-Appellants. ENBRIDGE PIPELINE (ILLINOIS), LLC, n/k/a Illinois Extension Pipeline Company, LLC, Plaintiff-Appellee,
v.
TERRY ADREON, as Trustee of the Residuary Trust Under the Last Will and Testament of Robert H. Davis; NONRECORD CLAIMANTS; and UNKNOWN OWNERS, Defendants-Appellants. ENBRIDGE PIPELINE (ILLINOIS), LLC, n/k/a Illinois Extension Pipeline Company, LLC, Plaintiff-Appellee,
v.
JPR FAMILY PARTNERSHIP LP, NONRECORD CLAIMANTS, and UNKNOWN OWNERS, Defendants-Appellants.

         Appeal from Circuit Court of McLean County No. 14ED5 Nos. 14ED8, 14ED28 Honorable Paul G. Lawrence, Judge Presiding.

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

          OPINION

          STEIGMANN JUSTICE.

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

         ¶ 2 During June and July 2014, IEPC filed separate complaints for "condemnation of permanent and temporary easements for common-carrier pipeline" (condemnation complaints) against defendants (1) Carla S. Temple (Temple) (McLean County case No. 14-ED-5 and this court's case No. 4-15-0346); (2) Terry Adreon (Adreon) (McLean County case No. 14-ED-8 and this court's case No. 4-15-0349); and (3) JPR Family Partnership LP (JPR) (McLean County case No. 14-ED-28 and this court's case No. 4-15-0360) (collectively, landowners). IEPC sought to obtain right-of-way and easement interests in landowners' respective properties and to determine just compensation for its interests. Thereafter, landowners each filed a "traverse and motion to dismiss" (traverse motion), requesting dismissal of IEPC's condemnation complaints. In November 2014, the trial court denied landowners' traverse motions.

         ¶ 3 In February 2015, IEPC filed a motion for summary judgment under section 2- 1005 of the Code of Civil Procedure (Civil Code) (735 ILCS 5/2-1005 (West 2014)), arguing that no genuine issue of material fact existed regarding the just compensation IEPC should pay to landowners for its right-of-way and easement interests. After landowners responded to the summary judgment motion, IEPC essentially contended that because (1) landowners had failed to file counteraffidavits in opposition to IEPC's motion for summary judgment as required by Illinois Supreme Court Rule 191(a) (eff. Jan. 4, 2013) and (2) IEPC properly complied with Rule 191(a) by filing affidavits in support of its motion, IEPC was entitled to judgment as a matter of law on the issue of just compensation. Following a March 2015 hearing, the trial court granted IEPC's summary judgment motion and awarded just compensation totaling $45, 000 (Temple $1000; Adreon $21, 000; and JPR $23, 000).

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

         ¶ 5 I. BACKGROUND

         ¶ 6 The issues presented in this appeal concern the trial court's rulings on the following issues: (1) landowners' traverse motions, which include landowners' request for discovery prior to the traverse hearing and (2) IEPC's motion for summary judgment on its condemnation complaints. The following chronological discussion is confined to matters pertinent to those two issues.

         ¶ 7 A. Procedural History

         ¶ 8 In Enbridge Energy (Illinois), L.L.C. v. Kuerth, 2016 IL App (4th) 150519, ¶¶ 6- 23, 69 N.E.3d 287, and Enbridge Pipeline (Illinois), LLC v. Hoke, 2016 IL App (4th) 150544, ¶¶ 6-23, this court chronicled the extensive procedural history regarding IEPC's intent to (1) construct, operate, and maintain the SAX project under section 15-401 of the Common Carrier by Pipeline Law (Pipeline Law) (220 ILCS 5/15-401 (West 2006)) and (2) acquire, when necessary, private property under eminent-domain authority to install the SAX project as permitted by section 8-509 of the Public Utilities Act (220 ILCS 5/8-509 (West 2006)). In the interest of brevity, we provide only a truncated synopsis to place landowners' appeals in context.

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

         ¶ 10 In August 2007, IEPC applied for a certificate in good standing, seeking the Commission's authorization to (1) construct, operate, and maintain the SAX project and (2) acquire, when necessary, private property under eminent-domain authority. Specifically, 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.

         ¶ 11 In July 2009, the Commission granted IEPC a certificate in good standing, which authorized construction of the SAX project. The Commission, however, denied IEPC's request for eminent-domain authority, urging, instead, that IEPC continue negotiations with recalcitrant landowners who had declined IEPC's compensation offers. The Commission advised IEPC that it could renew its request for eminent-domain authority by "demonstrating that it has made reasonable attempts to obtain easements, through good-faith negotiations."

         ¶ 12 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.

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

         ¶ 14 In July 2013, IEPC renewed its request for eminent-domain authority, seeking to condemn specific 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. Following a December 2013 administrative hearing, an administrative law judge (ALJ) recommended that the Commission grant IEPC eminent-domain authority. In April 2014, the Commission accepted the ALJ's recommendation and 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." 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). Pertinent to this appeal, we rejected intervenors' argument that the Commission's grant of eminent-domain authority was not supported by substantial evidence that IEPC had engaged in good-faith negotiations. Id.

         ¶ 15 3. IEPC's Motion To Reopen

         ¶ 16 In May 2014, IEPC filed a "Motion to Reopen and Amend Order Concerning Diameter of the [SAX project], " requesting an amendment to the July 2009 certificate in good standing that the Commission issued. Specifically, IEPC sought to reduce the diameter of the SAX project from 36 to 24 inches, explaining that uncertain economic conditions and market demand for a different grade of crude oil caused IEPC to reevaluate the initial parameters of the SAX project. In December 2014, the ALJ recommended that the Commission grant IEPC's amendment, subject to certain conditions. The Commission later determined that public convenience and necessity required issuance of an amended certificate to authorize a 24-inch pipeline. Intervenors appealed, and this court affirmed the Commission's order. Pliura Intervenors v. Illinois Commerce Comm'n, 2016 IL App (4th) 150084-U (Intervenors III).

         ¶ 17 B. IEPC's Final Offers to Landowners and Condemnation Complaints

         ¶ 18 In separate letters dated May 19, 2014, IEPC proffered final offers of (1) $1035 to Temple, (2) $84, 795 to Adreon, and (3) $85, 200 to JPR for a 60-foot permanent right-of-way and a 60-foot temporary work-space area to be used during construction of the SAX project. In total, IEPC sought (1) permanent easements traversing approximately 7.371 acres of landowners' parcels and (2) temporary easements traversing approximately 8.062 acres landowners' parcels. In exchange for its aggregate land interests, IEPC offered landowners $171, 030 in total compensation. IEPC conveyed that (1) its offer would expire in 10 days and (2) if landowners rejected the offer, IEPC would file suit against landowners to enforce its interests.

         ¶ 19 Beginning in June 2014-after landowners failed to respond to its offers-IEPC filed separate condemnation complaints, seeking to determine the just compensation for its right-of-way and easement interests in landowners' respective properties. Appended to IEPC's motion was the Commission's (1) July 2009 order, which granted IEPC authorization to construct the SAX project and (2) April 2014 order, which granted IEPC eminent-domain authority.

         ¶ 20 C. Landowners' Discovery Requests and Traverse Motions

         ¶ 211. The Parties' Filings

         ¶ 22 In August 2014, landowners filed a "request to produce documents" pertaining to the SAX project on the following general topics: (1) project planning and specifications, (2) safety plans, (3) oil spill projections, (4) shipping commitments, (5) ownership interests, and (6) regulatory and governmental reporting not involving the Commission. In September 2014, landowners filed a traverse motion, challenging IEPC's right to condemn a portion of their respective parcels to install and maintain the SAX project. In particular, landowners alleged that the following circumstances required dismissal of IEPC's condemnation complaints:

"12. The property sought to be acquired in this proceeding is not necessary or convenient for the purpose for which it is sought to be taken. ***
13.The amount of property sought to be taken by [IEPC] is in excess of [IEPC's] needs.
14.[IEPC] does not seek to use the property sought to be acquired by this proceeding for a public purpose. ***
15. There has been no bona fide pre-petition attempt to offer *** landowner[s] just compensation and damages to be paid for the property sought to be taken, based on the condemnation concept of fair market value."

         In their prayer for relief, landowners requested that the trial court dismiss IEPC's condemnation complaints or, in the alternative, set a discovery schedule and, thereafter, conduct an evidentiary hearing on the aforementioned issues raised.

         ¶ 23 In response to landowners, IEPC filed an objection to landowners' discovery requests in which IEPC acknowledged that landowners' discovery requests pertained to the issues of "just compensation 'and issues related to the [traverse] motion.' " IEPC based its objection, in part, on its assertion that landowners "are collaterally estopped from re-litigating the issues of whether [IEPC] is 'fit, willing, and able' to operate the pipeline, 'public need'[, ] and 'public convenience and necessity' already decided by [this court] in [Intervenors I]."

         ¶ 24 2. The Hearing on IEPC's Objection to Landowners' Discovery Request

         ¶ 25 We note that at the time of the October 2014 hearing on IEPC's objections to landowners' discovery request, (1) this court had published Intervenors I, which confirmed 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. 07-0446 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.

         ¶ 26 At the October 2014 hearing, IEPC characterized landowners' August 2014 request to produce documents, as follows:

"[Landowners] *** are asking the [trial] court *** for a de novo review and a de novo proceeding of all the evidence that was presented to the *** Commission. [Landowners] want to start over with what is about five years of discovery at the *** Commission. [Landowners] suggest to this court that they need discovery even though all of these issues are contained in the public records at the *** Commission and even though *** most, if not all, [of] the parties had intervened at the Commission."

         ¶ 27 IEPC contended that landowners' discovery request was an attempt to get the trial court to "second guess" the appellate court "on the issues of public purpose [and] public need, " which IEPC asserted were already decided by the Commission and later affirmed by this court. IEPC also argued that this court's decision in City of Springfield v. West Koke Mill Development Corp., 312 Ill.App.3d 900, 728 N.E.2d 781 (2000), stood for the proposition that a traverse motion is essentially a motion to dismiss under section 2-619(a)(9) of the Civil Code (735 ILCS 5/2-619(a)(9) (West 2014)) and, thus, the court was not required to conduct an evidentiary hearing, which would necessitate discovery.

         ¶ 28 Landowners responded by citing this court's case in Illinois Power Co. v. Lynn, 50 Ill.App.3d 77, 365 N.E.2d 264 (1977), for the proposition that trial courts were not preempted from inquiring into the same subject matter that the Commission considered during certification proceedings. Landowners also disputed IEPC's interpretation that Koke Mill stood for the proposition that a traverse motion is essentially a motion to dismiss under section 2-619(a)(9) of the Civil Code. In particular, landowners distinguished Koke Mill by noting that, in that case, the defendant did not request discovery. In the instant case, landowners averred, "That is absolutely contrary to what is happening here. [Landowners] have filed requests for discovery challenging pretty much the public use, the public benefit, [and] the good[-]faith negotiations."

         ¶ 29 In granting IEPC's objection and denying landowners' discovery request, the trial court ruled, as follows:

"The [trial] court agrees with [IEPC] and *** the substantial case law that [IEPC] has tendered *** and cited to the court in that the decision of the [Commission] cannot be collaterally attacked and, also the decision of the Fourth District in [Intervenors I] and that a de novo hearing will not occur. *** [B]ecause of what's been pled in the traverse motion, all of those discovery requests relating to the [Commission's] decision that's already been made *** the court is going to sustain the objection."

         As to landowners' claim that IEPC failed to negotiate in good faith prior to filing its condemnation complaints, the court ruled that sufficient evidence was provided showing that IEPC's final offers were 125% of the fee value for landowners' respective properties, to which landowners failed to respond within the 10-day period provided.

         ¶ 30 3. The Hearing on Landowners' Traverse Motion

         ¶ 31 To facilitate the reader's understanding of a traverse motion, we provide the following brief synopsis of the motion's purpose:

" '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.]' " Enbridge Energy (Illinois), L.L.C. v. Kuerth, 2016 IL App (4th) 150519, ¶ 51, 69 N.E.3d 287 (quoting Lake County Forest Preserve District v. First National Bank of Waukegan, 154 Ill.App.3d 45, 51, 506 N.E.2d 424, 428 (1987)).

         ¶ 32 At the November 2014 hearing, landowners informed the trial court that their "principal defense" was the relationship between IEPC and Marathon Petroleum Company-a co-owner of and expected oil transporter on the SAX project. Landowners explained that because the court had denied their ...


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