Enbridge Energy, LLC v. Kuerth
2016 IL App (4th) 150519
| Ill. App. Ct. | 2017Background
- IEPC (now Illinois Extension Pipeline Co.) obtained Illinois Commerce Commission certificates authorizing construction of the 170‑mile Southern Access Extension (SAX) pipeline and, in April 2014, eminent‑domain authority to acquire permanent (60‑ft) and temporary (60‑ft) easements across many tracts after negotiations with holdouts.
- IEPC sent final offers in May 2014 to Debra S. Kuerth Trust and Kenneth/Dianne Kuerth; after no acceptances, IEPC filed separate condemnation complaints in July 2014 to determine just compensation.
- Landowners filed traverse motions seeking dismissal on multiple grounds (lack of authority, lack of public use/necessity, inadequate negotiations, scope of taking, etc.) and sought discovery prior to a traverse hearing; the trial court denied discovery and the traverse.
- At the May 2015 hearing, the court sustained IEPC motions in limine excluding (1) landowners’ lay valuation testimony (except with a proper foundation), (2) two lay witnesses about other pipelines, and (3) landowners’ expert McCann after a voir dire; IEPC’s appraiser Brorsen testified.
- With no admissible opposing valuation evidence, the court granted IEPC directed verdicts and awarded statutory compensation amounts; landowners appealed, challenging evidentiary rulings and the denial of their traverse/discovery.
Issues
| Issue | Plaintiff's Argument (IEPC) | Defendant's Argument (Landowners) | Held |
|---|---|---|---|
| 1. Exclusion of lay landowner valuation testimony | IEPC: landowners lacked foundation and earlier depositions showed no opinion; testimony would be speculative and include improper factors. | Landowners: competent to testify about value based on ownership, local knowledge, research, and experience. | Court: exclusion was within discretion because disclosures relied on subjective stigma/fear and contradicted earlier depositions. |
| 2. Exclusion of expert McCann and directed verdict | IEPC: McCann relied on improper elements (temporary construction effects/stigma) barred by Trunkline; Brorsen supplied competent valuation, justifying directed verdict. | Landowners: McCann’s methods were reliable; exclusion was error and left them without a valuation to oppose Brorsen. | Court: McCann’s opinions included improper, speculative elements; exclusion proper; without admissible contrary evidence, directed verdict for IEPC was proper. |
| 3. Exclusion of testimony from Kelly/Summann about other IEPC pipelines | IEPC: testimony about different above‑ground pipelines and speculative future safety risks was irrelevant and prejudicial. | Landowners: statutes permit evidence of unsafe conditions affecting value. | Court: exclusion proper—testimony related to other properties/pipelines was speculative and not admissible under cited Eminent Domain Act provision. |
| 4. Denial of traverse and discovery; scope of traverse | IEPC: Commission’s certificates and eminent‑domain order (and prior appellate affirmances) create prima facie case; trial should defer and limit re‑litigation. | Landowners: entitled to discovery and a de novo traverse to show expired/invalid certificate, private benefit, lack of necessity, and failure to negotiate in good faith. | Court: vacated denial of traverse; held that section 5‑5‑5(c) creates rebuttable presumptions (public use/necessity) and Commission’s good‑faith finding warrants deference but may be rebutted; remanded for expedited, limited two‑stage traverse with tightly supervised discovery. |
Key Cases Cited
- Trunkline Gas Co. v. O’Bryan, 21 Ill. 2d 95 (improper inclusion of temporary/consequential interference in damages renders testimony incompetent)
- Franciscan Sisters Health Care Corp. v. Dean, 95 Ill. 2d 452 (explains rebuttable presumptions and "bursting bubble" treatment)
- United Cities Gas Co. v. Illinois Commerce Comm’n, 163 Ill. 2d 1 (Commission findings accorded deference; orders prima facie reasonable)
- Department of Public Works & Buildings v. Lewis, 411 Ill. 242 (limits judicial inquiry into necessity of public takings; distinguishes meanings of "necessary")
- Lake County Forest Preserve District v. First National Bank of Waukegan, 154 Ill. App. 3d 45 (burden principles at traverse hearings; condemnor must make prima facie case)
- Illinois Power Co. v. Lynn, 50 Ill. App. 3d 77 (property owners who participated before Commission still may challenge condemnation in court; limits of preclusion)