2017 IL App (4th) 150346
Ill. App. Ct.2017Background
- IEPC (Enbridge Pipeline) obtained Illinois Commerce Commission certificates authorizing construction of the SAX oil pipeline and, in April 2014, eminent-domain authority to acquire easements across specific parcels. IEPC filed condemnation complaints in June–July 2014 against multiple landowners seeking permanent and temporary easements and just compensation.
- Landowners filed traverse motions contesting IEPC’s right to condemn and sought discovery on issues including public use, necessity, and IEPC’s negotiations; the trial court denied discovery and later denied the traverses.
- IEPC moved for summary judgment on just compensation, appending affidavits/reports from its two certified appraisers. Landowners relied on disclosed but unsworn/unaffidavit materials (including a broker valuation report by Aupperle) and did not file counteraffidavits under Ill. S. Ct. R. 191(a).
- The trial court excluded Aupperle’s valuation, found no admissible competing valuation evidence, and granted IEPC summary judgment, awarding $45,000 total to the three landowners.
- On appeal the Fourth District (this opinion) vacated the trial court’s denial of the traverse motions and remanded for a limited, expedited traverse hearing focused only on (1) rebutting the statutory presumptions of public benefit/use and necessity and (2) refuting the Commission’s finding that IEPC negotiated in good faith. The court did not finally resolve the summary-judgment award pending the remand traverse proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Scope of traverse/discovery | IEPC: traverse is like a 2-619 motion; Commission and appellate rulings preclude relitigation; discovery unnecessary | Landowners: entitled to limited discovery to rebut presumptions and challenge good-faith negotiations | Denied trial court’s broad denial of discovery; remand for limited discovery and expedited two-stage traverse hearing focused only on rebutting presumptions and contesting good faith |
| Standard and burden to rebut Commission findings | IEPC: Commission’s findings control; landowners bear ordinary rebuttal burden | Landowners: may present evidence to challenge Commission determinations | Court adopts Kuerth view: Commission findings create rebuttable presumptions; due to agency expertise landowners must produce clear and convincing evidence to overcome (strong deference to Commission on good-faith finding) |
| Use of expert materials at summary-judgment stage (Rule 191) | IEPC: its appraisers complied with Rule 191(a); landowners filed no counteraffidavits so IEPC entitled to judgment | Landowners: Aupperle report (disclosed under Rule 213) should be considered; USPAP not controlling | Court: Rule 191(a) requires strict compliance; Rule 213 disclosures are not evidence for summary judgment; IEPC’s appraiser affidavits complied, landowners produced no admissible counteraffidavits, so summary judgment evidence would support IEPC — but final disposition deferred pending proper traverse hearing |
| Admissibility of Aupperle valuation | IEPC: Aupperle report is unreliable and was excluded in other counties; should be barred | Landowners: Aupperle’s opinions are admissible and material | Trial court excluded Aupperle; appellate court notes exclusion was proper for summary-judgment context but declines to decide ultimate valuation because remand on traverse is required first |
Key Cases Cited
- Robidoux v. Oliphant, 201 Ill. 2d 324 (2002) (explains strict compliance with Ill. S. Ct. R. 191(a) for affidavits in summary-judgment context)
- City of Springfield v. West Koke Mill Dev. Corp., 312 Ill. App. 3d 900 (2000) (discusses traverse procedure in municipal condemnation context)
- Lake County Forest Preserve District v. First National Bank of Waukegan, 154 Ill. App. 3d 45 (1987) (sets forth burden-shifting and prima facie showing for condemnation necessity)
- People v. Bohanan, 243 Ill. App. 3d 348 (1993) (illustrates appellate remand with retained jurisdiction and expedited remand directions)