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Forest Preserve District v. Miller
State: Illinois
Court: 2nd District Appellate
Docket No: 2-02-0455 Rel
Case Date: 05/15/2003

No. 2--02--0455



IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT


FOREST PRESERVE DISTRICT OF
DU PAGE COUNTY,

           Plaintiff-Appellant and
           Cross-Appellee,

v.

JACK C. MILLER and UNKNOWN
OWNERS,

            Defendants-Appellees and
            Cross-Appellants.

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Appeal from the Circuit Court
of Du Page County.




No. 98--ED--027


Honorable
Robert K. Kilander and
Patrick J. Leston,
Judges, Presiding.

 

JUSTICE GILLERAN JOHNSON delivered the opinion of the court:

The plaintiff, Forest Preserve District of Du Page County,appeals from the April 10, 2002, order of the circuit court of DuPage County dismissing its condemnation action. Originally, thetrial court had found for the plaintiff and ordered that thecondemnation of the subject parcel could proceed for $700,000. However, the trial court vacated that order and subsequentlydismissed the condemnation action after finding that theplaintiff's enabling ordinance failed to reasonably describe theproperty to be condemned. The defendant, Jack Miller, cross-appeals from an order entered prior to the vacature and fromseveral findings the trial court made during posttrial proceedings. We affirm.

On August 5, 1998, the plaintiff filed a complaint forcondemnation, seeking to acquire a 35-acre parcel of property knownas the Rodenburg Marsh, pursuant to the Downstate Forest PreserveDistrict Act (70 ILCS 805/6 (West 1998)). The Rodenburg Marsh wasowned entirely by the defendant. The plaintiff appended to itscomplaint Ordinance No. 98--322, which it had adopted on August 4,1998. Ordinance No. 98--322 provided that the "Executive Director,his staff and the Forest Preserve District attorneys be, and herebyare, authorized to take the necessary steps, either by negotiationor condemnation, to acquire title to the real estate described inExhibit A and depicted in Exhibit B attached hereto." ForestPreserve District of Du Page County, Ordinance No. 98--322 (eff.August 4, 1998). Exhibit A was a metes and bounds legaldescription. Exhibit B was a plat map. Exhibit B, the plat map,portrayed the entire 35 acres of the Rodenburg Marsh property. However, exhibit A, the metes and bounds legal description, leftout a 2.3-acre portion of the Rodenburg Marsh property.

On October 1, 1998, upon discovery of the erroneous metes andbounds legal description, the plaintiff filed an amended complaint. The amended complaint mirrored the original complaint. Like theoriginal complaint, attached to the amended complaint was OrdinanceNo. 98--322, which again provided that the "Executive Director, hisstaff and the Forest Preserve District attorneys be, and herebyare, authorized to take the necessary steps, either by negotiationor condemnation, to acquire title to the real estate described inExhibit A and depicted in Exhibit B attached hereto." ForestPreserve District of Du Page County, Ordinance No. 98--322 (eff.August 4, 1998). Exhibit A was the same metes and bounds legaldescription that the plaintiff provided in its original complaintand exhibit B was the same plat map as provided in the originalcomplaint. However, also appended to the amended complaint was anexhibit C. Exhibit C was a revised metes and bounds legaldescription which purportedly was consistent with the plat map anddepicted the entire 35-acre parcel. The trial court accepted theamended complaint. The trial court ruled, however, that August 5,1998, would remain the valuation date.

On December 9, 1998, the defendant filed his pro seappearance. On January 5, 1999, the plaintiff moved for a defaultjudgment alleging that the defendant had failed to answer orotherwise plead to the amended complaint. The trial courtsubsequently ordered the defendant to file a traverse orcounterclaim, should he so desire, by February 15, 1999. OnFebruary 16, 1999, the plaintiff filed a handwritten document. This document provided in full:

"I Jack Miller am filing [sic] this traverse/counterclaimformally objecting to the condemnation of my property at 7 N601 Rodenburg Road Roselle Illinois by the Du Page CountyForest Preserve."

The document was not accompanied by any notice of filing.

On March 24, 2000, the plaintiff filed a motion requesting thetrial court to enter an order finding that the defendant had waivedhis ability to file a traverse due to his failure to timely fileone. On May 30, 2000, the defendant filed a handwritten responseto the plaintiff's motion. The defendant's response provided inrelevant part:

"We just recently discovered, by reading the plaintiff'smost recent filing that we still had not filed our traverse. We apologize to the court and to the plaintiff for anyhardship this may have caused. *** We respectfully ask to thecourt to accept our traverse, at this time, on this date May30th, 2000.

TRAVERSE

I Jack Miller on this date May 30, 2000, formally objectto the condemnation of my property at 7 N 601 Rodenburg Roadby the Du Page County Forest Preserve."

On May 31, 2000, the trial court conducted a hearing. Following the hearing, the trial court found that the defendant hadfiled a general traverse, which challenged the condemnation actionon two grounds: (1) a lack of good-faith negotiations and (2) theconstitutionality of the enabling ordinance. However, the trialcourt denied the defendant's traverse on both grounds and set thematter for a March 19, 2001, trial on the underlying condemnationaction.

The defendant failed to appear on March 19, 2001. However,the trial proceeded as scheduled. The plaintiff called DavidPhillips as its sole witness. Philips testified that he was alicensed appraiser. Philips performed an appraisal on theRodenburg Marsh property. The Rodenburg Marsh property consistedof 35.5899 acres zoned for office research. The property had awetlands area of 21.8338 acres and only 7 of the acres werebuildable. The land was vacant, except for a single-family home onthe southwest corner. The highest and best use for the buildableportion of the property would be single-family or multi-familyresidential units. In his opinion, the Rodenburg Marsh propertywas worth $700,000. After the plaintiff rested its case, the trialcourt ordered the appointment of a court expert, ordered that theexpert be paid for by the plaintiff, and continued the matter.

On May 15, 2001, the trial court vacated its order appointinga court expert. It entered judgment for the plaintiff, settingjust compensation for the Rodenburg Marsh property at $700,000. OnJune 11, 2001, the defendant, now represented by counsel, filed a posttrial motion. In that motion, the defendant argued, amongother things, that (1) the plaintiff lacked the authority toacquire the Rodenburg Marsh property because the ordinance adoptedby the district did not accurately describe the Rodenburg Marsh;and (2) the valuation date used at trial was incorrect.

On June 19, 2001, the plaintiff filed a motion to strike thatportion of the defendant's posttrial motion challenging itsenabling ordinance. In its motion to strike, the plaintiff arguedthat the defendant had waived this argument by not raising itearlier. Also on July 19, 2001, the plaintiff filed a response tothe defendant's posttrial motion. In its response, the plaintiffargued that it was now authorized to condemn the Rodenburg Marshproperty due to a recent ordinance that it had adopted on June 19,2001. The plaintiff attached Ordinance No. 01--301 to itscomplaint. Ordinance No. 01--301 provided:

"[T]he legal description set forth in Exhibit C to the October1, 1998 Amended Complaint is hereby ratified and reaffirmed asbeing the legal description that described the Rodenburg MarshParcel sought to be acquired from the inception by theDistrict." Forest Preserve District of Du Page County,Ordinance No. 01--301 (eff. June 19, 2001).

On September 25, 2001, following a hearing, the trial courtfound that the valuation date used at trial was incorrect. Itvacated its order of judgment for the plaintiff setting justcompensation at $700,000. However, the trial court ruled that theincorrect valuation date in itself was not grounds to dismiss thecondemnation suit. The trial court continued the matter forfurther hearings on the issue regarding the enabling ordinance.

On February 5, 2002, following a hearing, the trial courtfound that the ordinance did not authorize the condemnation of theentire 35-acre parcel. Specifically, the trial court ruled:

"The law is clear that the property to be condemned mustbe reasonably described in the enabling action of thecondemnor, be it in an ordinance or resolution. ***

* * *

In our case there was no enabling ordinance as to theproperty legally described in the amended complaint, and thereis no showing of the Forest Preserve's right to condemn thatparcel of property. ***

* * *

I think that the Forest Preserve *** filed an amendedcomplaint to condemn a parcel of property which was differentfrom and in excess of the parcel which the Forest Preservepassed an ordinance to condemn."

On April 10, 2002, the trial court entered an order dismissing theplaintiff's condemnation complaint. The plaintiff thereafter fileda timely notice of appeal. The defendant subsequently filed atimely notice of cross-appeal.

At the outset of the appeal, we note that the plaintiff hasfiled a motion requesting that we strike certain statementscontained in the defendant's cross-reply brief for being inaccurateand unsupported by the record. See 177 Ill. 2d Rs. 341(e)(6), (e)(7). Supreme Court Rule 341(e)(6) requires that the facts ofthe case should be stated accurately and fairly. 177 Ill. 2d R.341(e)(6). Supreme Court Rule 341(e)(7) requires that argumentsshould be supported by authority and appropriate references to therecord. 177 Ill. 2d R. 341(e)(7). After reviewing the defendant'scross-reply brief, we believe that it substantially complies withRules 341(e)(6) and 341(e)(7). Although we decline to strike anyportion of the brief, we will nonetheless disregard any inaccuratestatements. See Brazas v. Ramsey, 291 Ill. App. 3d 104, 108(1997).

That said, the plaintiff's main contention on appeal is thatthe trial court erred in dismissing its condemnation action. Morespecifically, the plaintiff argues that (1) the defendant waivedhis right to challenge its authority to condemn the Rodenburg Marshproperty for not timely raising the issue in the trial court; (2)the trial court erred in construing the defendant's pro se documentfiled February 16, 1999, as a general traverse; (3) the trial courterred in shifting the burden to it to prove that its attorneys hadbeen given the authority to file the amended complaint; (4) thetrial court erred in finding that its enabling ordinance did notadequately describe the Rodenburg Marsh; and (5) the trial courterred in finding that the ordinance it passed during posttrialproceedings did not adequately describe the Rodenburg Marsh. Ourstandard for reviewing a trial court's dismissal of a condemnationpetition is whether the order is against the manifest weight of theevidence presented. Village of Round Lake v. Amann, 311 Ill. App.3d 705, 712 (2000).

Turning to the first of the plaintiff's specific contentionsregarding the propriety of the trial court's dismissal, theplaintiff argues that a property owner must challenge a condemningentity's authority to condemn prior to proceeding to trial on themerits of a condemnation action, lest the issue be waived. ChicagoHousing Authority v. Berkson, 415 Ill. 159, 161-62 (1953);Lieberman v. Chicago & South Side Rapid Transit R.R. Co., 141 Ill.140, 145 (1892). The plaintiff argues that the defendant failedto voice his challenge prior to proceeding to trial.

It is well settled that a traverse is a proper method by whichto object to a condemning entity's authority to condemn. See Cityof Evanston v. Piotrowicz, 20 Ill. 2d 512, 517 (1960); Village ofSkokie v. Gianoulis, 260 Ill. App. 3d 287, 297 (1994). Additionally, it is also well settled that a property owner mayelect to challenge a condemnation proceeding with a generaltraverse. See Forest Preserve District of Cook County v. Kean, 298Ill. 37, 45 (1921); People ex rel. Samuel v. Cooper, 139 Ill. 461,473 (1891). A traverse, by definition, is a denial of a materialallegation of fact. Black's Law Dictionary 1500 (6th ed. 1990). A general traverse is a blanket denial of all the factualallegations contained in a complaint. Black's Law Dictionary 1500(6th ed. 1990).

When a complaint to condemn is traversed, the trial court maydetermine all questions raised regarding the condemnor's right tocondemn the property. Towne v. Town of Libertyville, 190 Ill. App.3d 563, 567 (1989). Notably, the burden of proof shifts to thecondemnor to prove the disputed allegations when a condemnationaction is traversed. Village of Cary v. Trout Valley Ass'n, 282Ill. App. 3d 165, 169 (1996). If the condemnor fails to sustainits burden, the condemnation action is properly dismissed. Department of Transportation ex rel. People v. 151 Interstate RoadCorp., 333 Ill. App. 3d 821, 833 (2002).

In the instant case, we do not believe that the defendantwaived his right to challenge the authority of the plaintiff tocondemn the Rodenburg Marsh property. Rather, we believe that thedefendant timely presented a challenge to the plaintiff's authorityto condemn the Rodenburg Marsh property by the filing of atraverse. The defendant filed his traverse on February 16, 1999. The defendant's traverse was filed one day after the court-imposeddeadline, unaccompanied by any notice of filing. However, on May31, 2001, following a hearing, the trial court in its discretionaccepted the document. The trial court construed the defendant'straverse to be in the nature of a general traverse or a traversethat denied all the material allegations contained in theplaintiff's condemnation complaint. This traverse was sufficientto preserve the defendant's challenge to the plaintiff's authorityto condemn.

The plaintiff's reliance on Lieberman and Berkson in assertingits contention of waiver is misplaced. Those cases involveinstances where the defendants failed to file a traverse or voiceany kind of objection prior to trial. See Berkson, 415 Ill. at161-62, Lieberman, 141 Ill. at 145. The case at bar is inappositeto those the plaintiff cites, as the defendant here filed atraverse. The instant case is more analogous to Village of Skokiev. Gianoulis, 260 Ill. App. 3d 287 (1994).

In Gianoulis, the defendants moved for and the trial courtgranted a directed finding that the condemning entity was notauthorized to acquire the subject property because the entity hadfailed to establish necessity with respect to a portion of theproperty. Gianoulis, 260 Ill. App. 3d at 297. The trial courtsubsequently dismissed the condemnation action. Gianoulis, 260Ill. App. 3d at 297. On appeal, the condemning entity argued thatthe defendants had waived the issue of necessity because thedefendants had failed to raise that specific contention prior toproceeding to trial. Gianoulis, 260 Ill. App. 3d at 297. TheGianoulis court noted that, although the defendants had notarticulated that specific contention prior to trial, they had fileda traverse. Gianoulis, 260 Ill. App. 3d at 297. The Gianouliscourt, relying on the well-settled proposition that a defendant maychallenge a condemning entity's authority to condemn with atraverse, then held that the defendants had raised their specificcontention regarding necessity through the filing of theirtraverse. Gianoulis, 260 Ill. App. 3d at 297. The Gianoulis courtfound, therefore, that there had been no waiver. We find thereasoning in Gianoulis persuasive and, here too, find that therewas no waiver.

In so ruling, we reject the plaintiff's next contention thatthe trial court erred in construing the defendant's pro se documentfiled February 16, 1999, as a general traverse. The plaintiffargues that the defendant's document cannot be considered atraverse because it was not plain and concise as required bysection 2--603 of the Code of Civil Procedure (the Code) (735 ILCS5/2--603(a) (West 1998)). The plaintiff further argues that thedefendant's traverse did not comply with sections 2--610 and 2--612of the Code (735 ILCS 5/2--610, 2--612 (West 1998)).

Section 2--603 requires that "[a]ll pleadings shall contain aplain and concise statement of the pleader's cause of action,counterclaim, defense, or reply." 735 ILCS 5/2--603(a) (West1998). In addition to requiring pleadings to be concise, section2--603 of the Code also provides that pleadings should be liberallyconstrued with a view to doing substantial justice between theparties. 735 ILCS 5/2--603(c) (West 1998). Although thedefendant's pro se traverse was a bit simplistic, we believe thatit was very clear, concise, and to the point in stating that he wasobjecting to the condemnation of his property. Moreover, taking aliberal construction of the defendant's traverse, we cannot saythat it violated section 2--603 of the Code.

Additionally, we find that the defendant's traverse did notviolate section 2--610 of the Code. The traverse is a common lawinstrument that has been around since long before the adoption ofthe Code; not every section of the Code is applicable to atraverse. Section 2--610 is one of those sections that isinapplicable. Section 2--610 of the Code requires that "everyanswer or subsequent pleading shall contain an explicit denial ofeach allegation of the pleading to which it relates." 735 ILCS5/2--610 (West 1998). It is apparent that section 2--610 governsanswers to complaints and other subsequent pleadings such asreplies. A traverse is not an answer, reply, or any other suchpleading within the meaning of section 2--610. In fact, in aneminent domain proceeding a defendant need not even file an answer. See 151 Interstate Road Corp., 333 Ill. App. 3d at 839; Towne, 190Ill. App. 3d at 567. Instead, the defendant need only file atraverse, which the defendant herein did. See 151 Interstate RoadCorp., 333 Ill. App. 3d at 839; Towne, 190 Ill. App. 3d at 567. Finally, we find that the defendant's traverse complied withsection 2--612 of the Code, which provides that "[n]o pleading isbad in substance which contains such information so as reasonablyinforms the opposite party of the nature of the claim or defensewhich he or she is called upon to meet." 735 ILCS 5/2--612 (West1998). The defendant's traverse, even though just one sentence,was sufficient to put the plaintiff on notice that the defendantwas challenging its authority to condemn the Rodenburg Marshproperty.

We note that no Illinois courts have specifically addressedwhat constitutes a sufficient traverse. However, the requirementsof pleading a traverse appear to be quite minimal. See City ofChicago v. Riley, 16 Ill. 2d 257, 259-61 (1959). In Riley, the defendant had filed a verified petition praying for dismissal of thecondemnation suit against her. Riley, 16 Ill. 2d at 259-60. Apparently, nowhere in the petition did it state that it was atraverse. Riley, 16 Ill. 2d at 259-60. However, on appeal, thesupreme court treated the defendant's verified petition to dismissthe condemnation action as a traverse. Riley, 16 Ill. 2d at 261. Additionally, turning back to Gianoulis, we note that thedefendant's traverse in that case did not specify the exact groundsupon which the condemning entity's authority was being challenged. See Gianoulis, 260 Ill. App. 3d at 297. Nevertheless, the Gianouliscourt did not question the sufficiency of the defendant's traverse. See Gianoulis, 260 Ill. App. 3d at 297. Accordingly, in line withthese cases, we find that the defendant's traverse was sufficientin substance and that the trial court construed the documentproperly.

We next consider the plaintiff's contentions that the trialcourt erred in finding that its enabling ordinance and ordinancepassed during posttrial proceedings did not adequately describe theRodenburg Marsh property. The plaintiff concedes that there werediscrepancies in its original complaint regarding the descriptionof the property to be condemned. However, the plaintiff argues thatits amended complaint and accompanying enabling Ordinance No. 98--322 correctly described the property. Alternatively, the plaintiffargues that the ordinance that it passed during posttrialproceedings, Ordinance No. 01--301, corrected any discrepancies inthe description contained in Ordinance No. 98--322.

As a sovereign, the State has the inherent power to condemnproperty for public use. Other corporations or departments of thegovernment, as distinguished from the State or sovereignty, canexercise the power of eminent domain only when such grant isspecifically conferred by legislative enactment, and then only inthe manner and by the agency so authorized. Department of PublicWorks & Buildings v. Ryan, 357 Ill. 150, 154 (1934); MCI WorldComCommunications, Inc. v. METRA Commuter Rail Division of the RegionalTransportation Authority, No. 2--01--1438, slip op. at 4 (March 10,2003). Section 6 of the Downstate Forest Preserve District Act (70ILCS 805/6 (West 1998)) grants forest preserve districts, like the plaintiff herein, the power to acquire land by purchase orcondemnation. 70 ILCS 805/6 (West 1998).

However, even when conferred the power to condemn, a publicbody such as the plaintiff may not exercise its eminent domain powerunless it has manifested its determination to exercise that powerby some official action of record. City of Kankakee v. Dunn, 337Ill. 391, 394 (1929). A condemning entity generally manifests itsdetermination to exercise its power in an enabling ordinance orresolution. The supreme court has referred to the enablingordinance as the foundation of an eminent domain action. SeeVillage of De Pue v. Banschbach, 273 Ill. 574, 581 (1916). Theenabling ordinance must reasonably describe the property to betaken; the failure of the plaintiff to adequately describe theproperty is fatal to the petition to condemn. Kankakee, 337 Ill.at 394 (1929); Amann, 311 Ill. App. 3d at 713.

The appropriation of private property against an owner's willis harsh and against the common right. Chicago & Northwestern Ry.Co. v. Chicago Mechanics' Institute, 239 Ill. 197, 200 (1909). Being in derogation of the common law, conferring statutes andenabling ordinances must be strictly construed in order to protectthe right of property owners. Department of Transportation v. FirstGalesburg National Bank & Trust Co., 141 Ill. 2d 462, 468-69 (1990). In construing statutes and ordinances, the cardinal rule is toascertain and give effect to the true intent and meaning of thelegislature. In re Application for Judgment & Sale of DelinquentProperties for the Tax Year 1989, 167 Ill. 2d 161, 168 (1995).

The best evidence of legislative intent is the languageemployed in the statute itself, which must be given its plain andordinary meaning. People v. Lewis, 158 Ill. 2d 386, 389 (1994). The statute should be construed as a whole, with each section readin conjunction with every other section. Bonaguro v. CountyOfficers Electoral Board, 158 Ill. 2d 391, 397 (1994). When thestatutory language is clear, courts should give effect to thestatute as enacted without considering extrinsic aids forconstruction. Bogseth v. Emanuel, 166 Ill. 2d 507, 513 (1995). In the present case, the plaintiff had been conferred the powerto condemn property through the Downstate Forest Preserve DistrictAct. However, the plaintiff did not properly manifest itsdetermination to exercise this authority. The plain language ofOrdinance No. 98--322 stated that "the Executive Director, his staffand the Forest Preserve District attorneys be, and hereby are,authorized to take the necessary steps, either by negotiation orcondemnation, to acquire title to the real estate described inExhibit A and depicted in Exhibit B attached hereto." ForestPreserve District of Du Page County, Ordinance No. 98--322 (eff.August 4, 1998). Exhibit A, the legal description, described oneparcel of land, while exhibit B, the plat map, depicted a different,larger parcel of land.

We note that the plaintiff did attach an exhibit C to itsamended complaint, which was a legal description that purportedlydescribed a parcel of land consistent with the plat map. However,Ordinance No. 98--322 did not authorize the condemnation of land asdepicted in exhibit C. Rather, Ordinance No. 98--322 authorized thecondemnation of property as described in exhibits A and B, exhibitsA and B being two inconsistent descriptions of the property to betaken. We believe that the trial court's construction of theplaintiff's enabling ordinance was correct. The enabling ordinancegave two inconsistent descriptions, and, therefore, the ordinancefailed to reasonably describe the property to be taken.

Furthermore, we do not believe that the plaintiff's subsequentpassage of Ordinance No. 01--301 almost two years after the filingof the amended complaint cured the first ordinance's inconsistentdescriptions of property. Two Illinois Supreme Court cases havepreviously addressed similar situations where an ordinance waspassed subsequent to the filing of the condemnation action in an attempt to correct deficiencies in the enabling ordinance upon whichthe complaint was founded. See Goldman V. Moore, 35 Ill. 2d 450(1966); City of Rockford v. Rockford Life Insurance Co., 16 Ill. 2d287 (1959). City of Rockford in particular suggests that stringentstandards should be applied to the requirement of an enablingordinance that describes the property to be condemned. See City ofRockford, 16 Ill. 2d at 288-89.

In City of Rockford, the condemning entity's enabling ordinancefailed to describe the land to be condemned. City of Rockford, 16Ill. 2d at 288-89. Some five months after the action was commenced,the condemning entity passed an ordinance describing the land to betaken. City of Rockford, 16 Ill. 2d at 288-89. On appeal, thesupreme court reversed the trial court's judgment for the condemningentity, reasoning:

"The record does not show that prior to the filing of theeminent domain petition the city council had determined,either by resolution or ordinance what land was to be taken.***

Because the record fails to show an exercise of the powerof eminent domain by the corporate authority of the city, thepetition should have been dismissed." City of Rockford, 16Ill. 2d at 289-90.

The Goldman court took a similar approach. In Goldman, thecondemning entity filed a petition to condemn before even passingan enabling ordinance. Goldman, 35 Ill. 2d at 451-52. The enablingordinance was finally adopted nine months after the filing of thesuit. Goldman, 35 Ill. 2d at 452. On appeal, the supreme courtaffirmed the trial court's dismissal of the action, stating that thenew resolution was not an effective exercise of the power of eminentdomain. Goldman, 35 Ill. 2d at 454. We follow the stringentstandards of Goldman and City of Chicago and find here that thesubsequent ordinance passed by the plaintiff did not cure theinsufficiencies of the first ordinance upon which the complaint wasfounded.

The plaintiff's last contention on appeal is that the trialcourt improperly shifted the burden to it by requiring it to provethat its enabling ordinances adequately described the property tobe condemned. The plaintiff argues that the defendant's challengeto its enabling ordinance was in a sense an assertion that itsattorneys acted "ultra vires," or without the plaintiff's authority,in filing the amended complaint. The plaintiff, relying on City ofWinchester v. Ring, 312 Ill. 544 (1924), argues that absent proofto the contrary, the attorneys who represent the condemning entityare presumed to have the authority to file a condemnation action onthe condemning entity's behalf. Ring, 312 Ill. at 555.

We believe that Ring is inapplicable to the present case. First, the defendant in Ring never filed a traverse. When thedefendant in this case filed his traverse challenging theplaintiff's authority, the burden of proof was rightfully placedupon the plaintiff to prove the prima facie case of its condemnationaction. See Village of Cary, 282 Ill. App. 3d at 169. Theplaintiff failed to sustain this burden due to the inaccuratedescriptions contained in its enabling ordinance.

Second, contrary to the plaintiff's contentions, it was neverrequired to prove that its attorneys were authorized to file theamended complaint. The issue in this case did not concern theplaintiff's attorneys' authority. Rather, the issue was whether theplaintiff itself possessed the requisite authority to condemn andwhether it manifested its intent to exercise this authorityproperly. The plaintiff has taken portions of the record on appealout of context in asserting that the issue was otherwise. Inparticular, the plaintiff cites to a portion of the record in whichthe trial court stated:

"[Y]ou have used the word ultra vires and I like that word. I think we are-- in describing what the government corporationhas done, the government authority has done, it's not beyondtheir power but it was not exercised in the appropriatemanner."

Out of context, it is possible that the trial court's statementcould be construed as finding that the attorneys acted without theauthority of the plaintiff. However, following that statement, thetrial court went on to rule:

"However, I don't think any of the cases use that word. So Idon't want to get stuck on using the word ultra vires ***.

* * *

Since it's the government acting, I have used and no one seems interested in the term due process. And I think thegovernment must strictly comply, in this case, the ForestPreserve must strictly comply with the grant of authoritygiven to them by the legislature. And in failing to do that,they have denied the property owner due process of law."

It is clear that, taking the trial court's statement in context, thetrial court found that the plaintiff, not the attorneys, actedimproperly. The challenge was, and has been all along, to theplaintiff's authority and its improper exercise of it. A traversewas the appropriate instrument for the defendant to voice thischallenge. See Piotrowicz, 20 Ill. 2d at 517; Gianoulis, 260 Ill.App. 3d at 297.

On a final note, we point out that the plaintiff devotes thelatter portion of its brief to urging this court to classify thefiling of the amended complaint as a voidable or void act. "Void"is defined as "[n]ull; ineffectual; nugatory; having no legal forceor binding effect; unable, in law, to support the purpose for whichit was intended." Black's Law Dictionary 1573 (6th ed. 1990). "Voidable," however, is defined as "[t]hat which may be avoided, ordeclared void; not absolutely void, or void in itself. It importsa valid act which may be avoided rather than an invalid act whichmay be ratified." Black's Law Dictionary 1574 (6th ed. 1990). Wedo not believe that the plaintiff's filing of the amended complaintfalls under the void or voidable category. Rather, the filing ofthe amended complaint appears to be a valid act. Nevertheless, beit a void, voidable, or even a valid act, the plaintiff'scondemnation action was still properly dismissed because theenabling ordinance attached to the complaint failed to reasonablydescribe the property to be taken. See Kankakee, 337 Ill. at 394;Amann, 311 Ill. App. 3d at 713.

Based on our resolution of the plaintiff's appeal, the issuesthat the defendant raises in his cross-appeal are moot, and wedecline to address them.

For the foregoing reasons, the judgment of the circuit courtof Du Page County is affirmed.

Affirmed.

GROMETER and BYRNE, JJ., concur.

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