ENBRIDGE PIPELINE (ILLINOIS), LLC, n/k/a Illinois Extension Pipeline Company, LLC, Plaintiff-Appellee,
EDWARD HOKE, SONNA H. HOKE, NON-RECORD CLAIMANTS, and UNKNOWN OWNERS, Defendants-Appellants. ENBRIDGE PIPELINE (ILLINOIS), LLC, n/k/a Illinois Extension Pipeline Company, LLC, Plaintiff-Appellee,
PMC FARMS, LLC; CHARLES MURPHY, Tenant; NON-RECORD CLAIMANTS; and UNKNOWN OWNERS, Defendants-Appellants.
from Circuit Court of DeWitt County No. 14ED3 No. 14ED4,
Honorable William Hugh Finson, Judge Presiding.
STEIGMANN JUSTICE 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 plaintiff, Enbridge Pipeline (Illinois),
LLC, 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 known
as the Southern Access Extension (SAX project).
2 In July and August 2014, IEPC filed separate complaints for
"condemnation of permanent and temporary easements for
common-carrier pipeline" against defendants (1) Edward
Hoke and Sonna H. Hoke (Hokes) (DeWitt County case No.
14-ED-3; this court's case No. 4-15-0544) and (2) PMC
Farms, LLC, and its tenant, Charles Murphy, (PMC) (DeWitt
County case No. 14-ED-4 and this court's case No.
4-15-0545) (collectively, landowners). Through its
condemnation filing, IEPC sought to obtain right-of-way and
easement interests in landowners' respective properties
and determine just compensation for both interests.
Thereafter, landowners each filed a "traverse and motion
to dismiss" (traverse motions), requesting dismissal of
IEPC's condemnation complaints. In December 2014, the
trial court denied both traverse motions.
3 At a jury trial that began in May 2015, IEPC presented its
case-in-chief. Thereafter, the trial court permitted IEPC to
conduct a voir dire inquiry of Edward and Charles
out of the jury's presence. Immediately following
IEPC's inquiry, the court granted IEPC's motion to
bar the testimony of Edward and Charles regarding the (1)
fair-market value of their properties before and after
installation of the SAX project and (2) damages incurred to
the value of their remaining property after completion of the
SAX project. The court also granted IEPC's oral motion to
exclude landowners' expert's valuation testimony
pursuant to Illinois Supreme Court Rule 213(g) (eff. Jan. 1,
2007) because the expert failed to disclose the basis for his
valuation opinions as required by Illinois Supreme Court Rule
213(f)(3) (eff. Jan. 1, 2007). IEPC then moved for directed
verdicts on its condemnation suits. Following argument, the
court (1) granted directed verdicts in IEPC's favor and
(2) awarded landowners compensation of $8500 in case No.
14-ED-3 and $2000 in case No. 14-ED-4.
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
5 I. BACKGROUND
6 A. Procedural History
7 We provide the following synopsis of the pertinent
litigation involving the SAX project to place landowners'
appeal 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
project and (2) acquire, when necessary, private property
under eminent-domain authority to install and maintain the
SAX project 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.
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.
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 instead urged 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
11 Some affected landowners (intervenors) appealed the
Commission's grant of the 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. Id. 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
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 had reached an agreement with IEPC.)
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 two 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 about 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
15 Later that month, the Commission issued its written order,
in which it 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." 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 SAX
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
16 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.
17 3. IEPC's Motion To Reopen
18 In May 2014, IEPC filed a "Motion to Reopen and Amend
Order Concerning Diameter of the [SAX], " requesting an
amendment to the July 2009 certificate in good standing that
the Commission issued in docket No. 07-0446. Specifically,
IEPC's amendment sought only to reduce the pipeline's
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 project would be approximately 300, 000 barrels per
day (bpd) of oil, which "can be readily accommodated by
a 24-inch outside diameter pipeline." (In its 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 stated 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 to that litigation 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 an
amended certificate to authorize a 24-inch pipeline. In
particular, 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
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 the 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 24-inch amendment to the SAX project discriminated
against the general public by not making the SAX 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).
24 B. The Issues on Appeal
25 The issues presented in this appeal concern primarily the
trial court's rulings on the following two issues: (1)
landowners' traverse motions, including landowners'
requests for discovery prior to the traverse hearing, and (2)
IEPC's condemnation suit, which includes landowners'
challenges to the trial court's underlying evidentiary
rulings. The following chronological discussion is confined
to those two issues.
26 1. IEPC's Final Offers and Condemnation
27 In separate letters, both dated May 19, 2014, IEPC
proffered a final offer of $23, 354 to the Hokes and $4573 to
PMC 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. IEPC informed landowners that (1) the final
offer would expire in 10 days and (2) if landowners rejected
the final offer, IEPC would file suit against landowners to
enforce its interests.
28 In July and August 2014-after landowners failed to respond
to its offers-IEPC filed separate "complaints for
condemnation of permanent and temporary easements for common
carrier pipeline, " 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 April 2014 order in docket
No. 13-0446, which granted IEPC eminent-domain authority.
¶ 29 2. Landowners' Traverse Motions and
Requests for Discovery
30 In August and September 2014, the Hokes and PMC,
respectively, filed a traverse motions, alleging that the
following circumstances required dismissal of IEPC's
"1. [IEPC] is not properly vested with authority to
acquire the property of [landowners] by proceeding in eminent
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
5.*** [T]here has been no bona fide attempt to agree with
[landowners] 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
[landowners' property] 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
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."
31 In October 2014, landowners filed memoranda in support of
their traverse motions, asserting, in part, that because a
traverse motion concerns the protection of a property
owner's land rights, such a filing is not-as IEPC
claims-the equivalent of a motion to dismiss under section
2-619(a)(9) of the Code of Civil Procedure (Civil Code) (735
ILCS 5/2-619(a)(9) (West 2014) (a court can involuntarily
dismiss a cause of action on the grounds "[t]hat the
claim asserted against defendant is barred by other
affirmative matter avoiding the legal effect of or defeating
the claim")). Specifically, landowners alleged that a
traverse motion hearing involves an evidentiary proceeding,
which necessitates discovery and "resembles a trial more
than it does a conventional motion hearing." Landowners
asserted further that the "points initially raised by
[their] traverse [motions], will require additional discovery
not available to [landowners] prior to filing."
32 3. The Hearing on Landowners' Discovery
Requests and Traverse Motions
33 We note that at the time of the November 2014 hearing on
landowners' discovery requests and traverse motion
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
34 To facilitate the reader's understanding of a traverse
motion, we provide the following brief synopsis of the
" '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)).
35 At the November 2014 hearing, the trial court first
considered landowners' requests for discovery. Landowners
acknowledged that trial courts in Kankakee, Livingston,
McLean, and Will Counties had considered and rejected such
requests made by similarly situated landowners. Landowners
then argued that the reason discovery was necessary prior to
the court's consideration of their traverse motions was
to facilitate landowners' further inquiry into whether
IEPC (1) was constructing a different pipeline than the SAX
project the Commission approved in July 2009 in docket No.
07-0446, (2) provided a genuine good-faith offer and conveyed
the bases for its offers, and (3) was constructing a private
pipeline by virtue of Marathon's ownership interest in
the SAX project. Landowners also requested to depose
"individuals who have *** submitted *** affidavits"
regarding their land-valuation methodology.
36 In response, IEPC argued that landowners were essentially
attempting to relitigate issues that had been considered and
adjudicated by the Commission. In support of its argument,
IEPC noted the Commission's orders in docket Nos. 07-0446
(granting IEPC certification to build the SAX project) and
13-0446 (granting IEPC eminent-domain authority). IEPC
claimed that docket No. 07-0446 was a final order by virtue
of this court's conclusion 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 the Commission's
grant of eminent-domain authority remained a valid,
enforceable order despite intervenors' then-pending
appeal to this court in Intervenors II. IEPC argued
further that because landowners' discovery requests were
"improper collateral attacks" on the
Commission's determinations, no discovery was warranted.
37 After considering further argument by the parties, the
trial court denied landowners' request for discovery
prior to the traverse hearing. In so ruling, the court stated
that after considering the parties' filings in support of
and in opposition to landowners' discovery requests and
traverse motions, which included IEPC's July and August
2014 condemnation complaints, the court did not view
landowners' discovery requests "appropriate."
38 Prior to conducting a hearing on landowners' traverse
motions, the trial court recessed briefly to consider
City of Springfield v. West Koke Mill Development
Corp., 312 Ill.App.3d 900, 728 N.E.2d 781 (2000). The
court did so because IEPC had argued during the court's
consideration of landowners' request for discovery that
this court's decision in 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.
39 Upon resuming the hearing, IEPC again noted the
Commission's orders granting (1) a certificate in good
standing to IEPC in docket No. 07-0446 and (2) eminent-domain
authority to IEPC in docket No. 13-0446. IEPC acknowledged
that section 5-5-5(c) of the Eminent Domain Act (735 ILCS
30/5-5-5(c) (West 2014)) provided landowners the ability to
rebut the statutory presumptions established by the
aforementioned orders-specifically, that IEPC's interests
in landowners' respective properties were (1)
"primarily for the benefit, use, or enjoyment of the
public"; and (2) "necessary for a public
purpose." IEPC argued that landowners had not presented
the requisite clear and convincing evidence to rebut those
40 IEPC then attempted to explain that the offers made to
landowners for IEPC's interests were based on 125% of the
fee value of the landowners' respective properties.
Landowners' objected, arguing that IEPC's explanation
was improper because they were entitled to an evidentiary
hearing where they could cross-examine IEPC's appraiser.
The trial court overruled landowners' objections, stating
"As [the court] read from [Koke Mill], this
[traverse proceeding] is akin to a 2[-]619 motion [to
dismiss.] [L]ogically, that makes sense because *** the
traverse and motion to dismiss is attempting to do the same
thing a 2[-]619 motion would do. To rule on a 2[-] 619
motion, the court certainly doesn't need live body
testimony. Affidavits, exhibits, [and] things like that
suffice. [Landowners'] objection is overruled."
41 After IEPC concluded its argument, landowners attempted to
call their first witness. The trial court interrupted,
stating that "[the court has] already said [the traverse
hearing is] a 2[-] 619 type hearing." When landowners
requested to make an offer of proof regarding the content of
the expected testimony, the court responded, as follows:
"As [the court] said, this is in the nature of a hearing
in a motion under 2[-] 619 [of the Civil Code. The court is]
not aware of any authority for any testimony on that kind of
a motion, or even for an offer of proof. So, the request to
present an offer of proof is denied."
further argument, the court denied landowners' traverse
42 4. Landowners' Counterclaim
43 In December 2014, landowners filed a "counterclaim
for damages to the remainder, " in which they 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 project. Landowners claimed that such
damage included (1) "the inherent danger of
environmental damage, including the possibility of
catastrophic environmental damage consequent to a breach,
leak, or other failure of the pipeline"; (2) "the
inherent danger to life, limb, and property resultant from a
fire and/or explosion consequent to a breach, leak, or other
failure of the pipeline"; (3) "diminished resale
value"; (4) "necessary restrictions on current and
future use of the property"; (5) "diminished crop
yields"; (6) "diminished ground stability";
(7) "water drainage disruption and displacement";
and (8) "future costs associated with the removal of the
44 5. IEPC's Motions In Limine and the ...