Enbridge Energy v. Fry
2017 IL App (3d) 150765
| Ill. App. Ct. | 2017Background
- Enbridge obtained an ICC certificate authorizing construction of underground pipeline Line 78 and filed consolidated condemnation actions to acquire easements across several properties in multiple counties, including two Kankakee County tracts owned by Fry and Bauer/Lamore.
- Enbridge made written offers (including final offers with receipts) and conducted market studies via retained appraisers; landowners did not accept and filed traverse motions contesting authority, necessity, and good-faith negotiations.
- The trial court denied the traverse motions after considering the ICC order (creating a rebuttable presumption of public use/necessity) and Enbridge’s negotiation evidence; no meaningful discovery or evidence was presented by landowners at that stage.
- At trial Enbridge presented appraiser Andrew Brorsen, who testified to just compensation amounts; landowners’ disclosed expert (McCann) failed to produce county-specific comparable/paired-sales data timely and was excluded after voir dire as a discovery sanction under Rule 219; farm tenants and landowners were also barred from offering valuation testimony for failure of disclosure or prior deposition statements.
- The trial court directed a verdict for Enbridge on valuation (no admissible contrary valuation evidence) and dismissed the landowners’ counterclaim; landowners’ posttrial motions (including juror-discharge/bias allegations) were denied. Appeal followed.
Issues
| Issue | Plaintiff's Argument (Enbridge) | Defendant's Argument (Landowners) | Held |
|---|---|---|---|
| Whether traverse hearing procedure and good-faith negotiation finding were proper | ICC order creates rebuttable presumption; Enbridge satisfied good-faith negotiating requirement through offers and appraiser advice; no discovery or evidence by defendants to rebut | Trial court wrongly resolved traverse without further discovery/evidentiary hearing; Enbridge failed to provide appraisal basis during negotiations | Court affirmed: no abuse of discretion; presumption from ICC sufficient and landowners offered no evidence to rebut; Enbridge not required to tender market study to satisfy good-faith negotiation |
| Admissibility of cross-examining Enbridge’s expert on specific easement rights (access, mortgage) | Questions irrelevant or speculative; Enbridge stipulation addressed access; mortgage concerns speculative without evidence | Cross-examination on specific easement rights was material to credibility and impact on remainder value | Court affirmed exclusion: evidence irrelevant or speculative; stipulations and law limited probative value |
| Exclusion of landowners’ valuation evidence (McCann, tenants, owners) as discovery sanction and Rule 213 failures | Landowners repeatedly failed to produce Kankakee-specific comparables and bases despite requests; belated disclosure and attempted late deposition; sanction appropriate | Sanctions disproportionate, punitive, and procedurally unfair; Enbridge engaged in gamesmanship; lesser sanctions should have been used | Court affirmed: trial court acted within discretion under Rule 219; discovery violations (withheld bases) justified barring testimony and dismissing counterclaim as no admissible proof of remainder damage remained |
| Alleged premature discharge of jury and appearance of judicial bias | Jurors were not technically discharged; judge managed juror schedule to minimize inconvenience; landowners produced only hearsay juror statements | Jury was led to believe case was finished; that created appearance of impropriety and tainted subsequent rulings | Court affirmed: factual finding that jury was not discharged not against manifest weight; no loss of control or demonstrated prejudice; bias claim fails |
| Directed verdict awarding just compensation to plaintiff | With only Enbridge’s qualified appraiser admissible, evidence overwhelmingly favored Enbridge | Directed verdict improper because landowners were denied chance to present valuation | Court affirmed: no admissible contrary valuation evidence; directed verdict proper under governing standard |
Key Cases Cited
- Department of Transportation ex rel. People v. 151 Interstate Road Corp., 209 Ill. 2d 471 (2004) (condemnor must negotiate in good faith before filing; ICC finding creates rebuttable presumption)
- Forest Preserve District v. First Nat’l Bank of Franklin Park, 2011 IL 110759 (2011) (reliance on appraisal consultant generally suffices to show good-faith offer; condemnor need not tender its appraisal)
- Shimanovsky v. Gen. Motors Corp., 181 Ill. 2d 112 (1998) (standards and discretion for imposing Rule 219 discovery sanctions)
- Trunkline Gas Co. v. O’Bryan, 21 Ill. 2d 95 (1960) (temporary interference from construction is not an element of permanent remainder damages)
- Maple v. Gustafson, 151 Ill. 2d 445 (1992) (standard for directed verdict: when evidence so overwhelmingly favors movant that no contrary verdict could stand)