Enbridge Pipeline (Illinois), LLC v. Kiefer
2017 IL App (4th) 150342
| Ill. App. Ct. | 2017Background
- IEPC (Enbridge Pipeline (Illinois), LLC) obtained Illinois Commerce Commission authorization to build the Southern Access Extension (SAX) oil pipeline and filed condemnation complaints in 2014 to acquire permanent and temporary easements over 18 landowners' parcels.
- IEPC made final offers, some landowners rejected; IEPC filed consolidated condemnation cases seeking just compensation for easements and damages to remainders.
- IEPC moved for summary judgment (Feb 2015) on just compensation, attaching sworn appraisal affidavits and reports from its two certified appraisers (Batis and Park) complying with USPAP and Rule 191(a).
- Landowners disclosed three retained experts (Aupperle, Crouch, Deaver) under Rule 213 but did not file counteraffidavits opposing summary judgment; they submitted the Aupperle valuation report and an unsworn 173-page supplement but no sworn expert affidavits under Rule 191(a).
- At the summary-judgment hearing the trial court excluded Aupperle's opinion (citing similar exclusion in DeWitt County), found no admissible competing valuation testimony, and granted IEPC summary judgment awarding $332,000.
- On appeal, the Fourth District affirmed, holding IEPC complied with Rule 191(a), landowners did not, and therefore no genuine issue of material fact existed to defeat summary judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether IEPC was entitled to summary judgment on just compensation when landowners failed to file counteraffidavits under Rule 191(a) | IEPC: Its appraisers submitted Rule 191(a)-compliant affidavits and reports; landowners filed no counteraffidavits, so IEPC's facts stand admitted and judgment is proper | Landowners: Their Rule 213 disclosures (and Aupperle report) suffice to raise a factual dispute; USPAP not adopted so IEPC’s reliance is improper | Held for IEPC: IEPC's affidavits complied with Rule 191(a); landowners submitted no admissible counteraffidavits or sworn expert affidavits, so no genuine factual dispute remained; summary judgment affirmed |
| Admissibility of Aupperle valuation report at summary judgment | IEPC: Aupperle's report is unreliable and inadmissible; IEPC even appended it only to attack it | Landowners: Aupperle was a disclosed controlled expert and his valuation should create a triable issue | Held: Aupperle's report (and other Rule 213 disclosures) are not competent summary judgment evidence absent Rule 191(a) affidavits; trial court excluded the opinion and exclusion supported summary judgment |
Key Cases Cited
- Robidoux v. Oliphant, 775 N.E.2d 987 (Ill. 2002) (interpreting strict compliance with Ill. S. Ct. R. 191(a) for affidavits at summary judgment)
- Essig v. Advocate BroMenn Medical Ctr., 33 N.E.3d 288 (Ill. App. Ct. 2015) (Rule 213 disclosures are not summary-judgment evidence; parties must provide admissible affidavits)
- Bartonville v. Lopez, N.E.3d (Ill. 2017) (summary judgment standard and de novo review)