Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Kotara, LLC v. Schneider

Court of Appeals of Illinois, Third District

January 18, 2018

KOTARA, LLC, an Illinois Limited Liability Company, and BRAIDKOT, LTD., an Illinois Corporation, Plaintiffs-Appellants and Cross-Appellees,
v.
ANN L. SCHNEIDER, in Her Official Capacity as Secretary of Transportation, Defendant-Appellee and Cross-Appellant.

          Appeal from the Circuit Court of Will County, No. 12-MR-978; the Hon. Roger D. Rickmon, Judge, presiding.

          Langdon D. Neal, Lenny D. Asaro, and Charlotte M. Huffman, of Neal & Leroy, LLC, of Chicago, for appellants.

          Lisa Madigan, Attorney General, of Springfield (Amanda Ripp, Special Assistant Attorney General, of Walker Wilcox Matousek, LLP, of Chicago, of counsel), for appellee.

          PRESIDING JUSTICE CARTER delivered the judgment of the court, with opinion. Justices Lytton and O'Brien concurred in the judgment and opinion.

          OPINION

          CARTER PRESIDING JUSTICE

         ¶ 1 Plaintiffs, Kotara, LLC, and Braidkot, Ltd., filed a complaint in the trial court for mandamus relief, seeking to compel defendant, Ann L. Schneider, in her official capacity as Secretary of Transportation, to file an eminent domain action as to certain real property that was allegedly owned by plaintiffs and taken by defendant for a road-widening project. After a bench trial on the mandamus complaint, the trial court ruled in favor of defendant, denied plaintiffs' claim for mandamus relief, and awarded defendant costs of suit. Defendant filed a posttrial motion seeking to impose Illinois Supreme Court Rule 137 (eff. July 1, 2013) sanctions (frivolous litigation) against plaintiffs and to set the amount of costs awarded. The trial court denied defendant's request for sanctions and set the award of costs at a much lower amount than defendant had requested. Both sides appeal. Plaintiffs challenge the trial court's bench-trial ruling (appeal), and defendant challenges the trial court's denial of its request for sanctions and the amount of costs that the trial court awarded (cross-appeal). We affirm the trial court's judgment.

         ¶ 2 FACTS

         ¶ 3 Plaintiffs owned certain real property (the whole property or the property) at the northwest corner of the intersection of Routes 53 and 113 in Braidwood, Will County, Illinois, upon which they operated a grocery store. Plaintiffs had purchased the property and the grocery store in November 2005. The property ran in a northeasterly direction from Route 113 and along the line of, and adjacent to, Route 53. The property had previously consisted of two separate adjoining parcels: parcel one and parcel two. Parcel two abutted the intersection, and parcel one was located behind parcel two. At the back of, or behind, parcel one was a portion of Oak Street, which had been vacated in that area, and behind that was what has been referred to in this case as the "Polk-a-Dot" property. When plaintiffs purchased the whole property in 2005, they received a deed for each parcel; a survey of the whole property, which had been prepared by Joseph Gentile, a licensed Illinois surveyor; and a title commitment. The pertinent deed provided that the rear boundary of the property (the northeast property line) was at the centerline of vacated Oak Street. In addition, the title commitment provided a survey endorsement, which allowed plaintiffs to have another survey prepared at the title company's expense if any problems arose.

         ¶ 4 In March 2007, defendant brought eminent domain proceedings against plaintiffs, seeking to take a portion of the property for a road-widening project. During the course of the eminent domain proceedings, a dispute arose between plaintiffs and defendant. Defendant had performed some additional construction work on a small area of land that was located in the rear, northeast corner of what plaintiffs believed to be their property. That area was outside the area of original taking and has been referred to in this case as the area of additional taking. In that area, defendant performed excavation and trenching work and installed a storm sewer, curb, gutter, and asphalt. When plaintiffs found out about the work, they requested that defendant either amend the complaint in the eminent domain proceedings or initiate separate eminent domain proceedings to ascertain and pay just compensation for the area of additional taking.

         ¶ 5 Defendant refused. Although defendant had previously offered plaintiffs compensation for the original taking based upon the whole property, including the area of additional taking, defendant took the position that there was a gap area or a disputed area in the rear of the property that plaintiffs either did not own or to which plaintiffs could not show ownership. Defendant's position was based upon a plat of highways that had been prepared by defendant's surveyor, Ronald Hodgen, an Illinois licensed surveyor, in about 2005. Hodgen had located the centerline of vacated Oak Street in the field by taking the dimensions that were provided in an older plat for the distance between the section line (a surveying point of reference) and the centerline of vacated Oak Street and by verifying those dimensions with the dimensions provided from the section line in the Polk-a-Dot deed. Based upon his research and his work in the field, Hodgen determined that the rear property line of plaintiffs' property was actually 25 feet further southwest in relation to Route 113 than the rear property line that had been drawn in the Gentile survey. In short, Hodgen determined that the abutting property line of the Polk-a-Dot property was at the northerly right-of-way line of vacated Oak Street and the rear property line of plaintiffs' property was at the centerline of vacated Oak Street. Thus, according to Hodgen, there was a gap area or disputed area about 25 feet wide that was not covered by either property's deed, although plaintiffs were occupying and maintaining the gap area and plaintiffs and their predecessor in title had paid the property taxes on that area. The gap area ran from the centerline of vacated Oak Street (the rear boundary line of plaintiffs' property) to the northerly right-of-way line of vacated Oak Street (the abutting property line of the Polk-a-Dot property). Gentile had not had the deed for the Polk-a-Dot property when he had prepared his survey.

         ¶ 6 Plaintiffs and defendant were unable to resolve their dispute, and in May 2012, plaintiffs filed the instant mandamus action against defendant, seeking to have the trial court order defendant to initiate separate eminent domain proceedings for the area of additional taking. In August 2015, the case proceeded to a bench trial, which took multiple days to complete. During the course of the trial, the parties presented the testimony of several witnesses and numerous exhibits were admitted into evidence, including the deeds for the two parcels, Gentile's survey, Hodgen's plat of highways, some of the prior plats, and defendant's procedure manual, among other things. In addition to establishing the information set forth above, the evidence presented at the trial established that Gentile, Hodgen, some of the workers involved in the construction project, and certain others all observed a concrete right-of-way marker in or near the area of additional taking where the construction work was performed (the construction work was performed between the right-of-way marker and the pavement of Route 53). The right of way was shown on both Gentile's survey and Hodgen's plat, although the actual marker had disappeared from the location prior to the trial.

         ¶ 7 As could be expected, the main thrust of plaintiffs' case was the testimony and survey of Gentile. Gentile testified in great detail as to the methods he had used in completing the survey, the conclusions he had reached, and the reasons for those conclusions. In sum, Gentile opined that his survey correctly showed the rear property line of plaintiffs' property and that plaintiffs owned the whole property, including the disputed area and the area of additional taking. Gentile acknowledged, however, that he did not have the deed to the Polk-a-Dot property when he completed his survey and stated that when he learned there was a possible dispute over the rear boundary line of the property, he contacted the title company to ask if they would revise the legal description of the property to eliminate the references to the centerline of vacated Oak Street (to essentially comply with the amount of property that plaintiffs were actually occupying). A title company employee confirmed that plaintiffs' attorney had made a similar call or e-mail to the title company to request that the legal description be revised. Unbeknownst to Gentile, the title company refused that request. Gentile also acknowledged during his testimony that his survey showed a right of way for Route 53 in or near the area of additional taking.

         ¶ 8 The thrust of defendant's case, on the other hand, was the testimony of Hodgen and the plat of highways he had prepared. Like Gentile, Hodgen testified at length as to the methods he had used in completing his plat of highways, the conclusions he had reached, and the reasons for those conclusions. In short, Hodgen opined that his plat of highways correctly showed the rear property line of plaintiffs' property, that the pertinent deed did not include the disputed area or the area of additional taking, that Gentile's survey was incorrect, and that there was a right of way for Route 53 in or near the area of additional taking.

         ¶ 9 After the evidence in the case had been concluded, the parties submitted written closing arguments, and the trial court took the case under advisement. In August 2016, the trial court issued its written ruling finding for defendant and rejecting plaintiffs' claim for mandamus relief. In reaching that decision, the trial court found that Hodgen's methodology was more reliable and accurate than Gentile's and concluded, therefore, that plaintiffs had not established a clear right to mandamus relief because a substantial issue existed with regard to plaintiffs' ownership of the disputed area (and, presumably, the area of additional taking). The trial court also found that the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.