Filed:  January 16, 2002

JUSTICE KNECHT delivered the opinion of the court:

The plaintiff, City of Quincy (City), initiated aneminent domain action to acquire a portion of defendant, DiamondConstruction Company's (Diamond), property to complete a street-extension project. The City, during a five-month period, procured two strikingly different appraisals of Diamond's property. The first appraisal was obtained before Diamond, in reliance onthe City's definite plan to acquire its property, began torelocate its asphalt plant to ensure it would be operational forthe next year's construction season. The City's second appraisalwas obtained on the date the condemnation complaint was filed andafter Diamond had traded in and moved certain components of itsplant. The first appraisal listed the property's highest bestuse as an asphalt plant and the second appraisal listed it asvacant industrial. Prior to the jury trial to determine justcompensation for the taking, the trial court granted Diamond'smotion in limine to exclude evidence of the City's second appraisal and limit the evidence of highest and best use to anasphalt plant. The jury awarded Diamond $1,558,640 as compensation for the taking. The City appeals, contending the trialcourt abused its discretion in granting Diamond's motion inlimine. We affirm.

I. BACKGROUND

In September 1997, Charles Scholz, Quincy's mayor,contacted Charles Miller, Diamond's president, to discuss theCity's plan to extend 18th Street through Diamond's asphaltplant. Over the next two years, Miller communicated with variousCity officials concerning the City's acquisition of his propertyand his concerns with the timing of the taking. Miller wasconcerned because he would be required to move the asphalt plantduring the winter months in order for Diamond to honor itscontractual obligations during the regular construction season,which usually begins in early spring.

On October 21, 1999, Miller wrote to the City's specialassistant corporation counsel, Hubert Staff, with the followingconcerns and requests: (1) Miller had not heard from the City inseveral months concerning the acquisition of his property; (2) ifthe City planned to go forward with the taking, Diamond would beunable to continue operations at that location; (3) Diamond wasfinancially committed to making capital improvements in itsbusiness in order for it to honor its contractual obligations forthe next spring's construction season; (4) Miller requested theCity's official position regarding the acquisition of his property; and (5) time was of the essence and Diamond would begincapital improvements at the existing plant if the City did notrespond by November 20, 1999.

In an October 25, 1999, response, Staff told Miller theCity intended to go forward with the acquisition of his propertysometime prior to the 2000 construction season. Further, Stafftold Miller he expected the city council to adopt a resolutionwithin two weeks authorizing him to enter into negotiations withDiamond for the acquisition of its property.

On November 5, 1999, Staff again wrote to Miller,advising him the City expected to adopt a resolution on Monday,November 8, 1999, authorizing him to make an offer on the Diamondproperty. The city council passed the resolution and on November9, Scholz forwarded a letter to Miller acknowledging the Cityplanned to acquire a portion of the Diamond property througheminent domain.

On December 13, 1999, Miller received a letter fromStaff offering Diamond $462,000 for fee title to 1.88 acres ofthe 10-acre tract, damages to the remainder of the property, andcompensation for construction easements. Miller was advised theamount was based on an appraisal prepared by Wayne Briggs onNovember 9, 1999. The appraisal concluded the value of theentire tract of property before the taking was $1,300,000. Briggs' appraisal described the property as special use improvedwith an asphalt plant, which was a fixture and, thus, part of therealty and could not be moved. Briggs stated the property'scurrent use as an asphalt operation was consistent with thehighest and best use of the property. Finally, Briggs stated dueto the nature of the taking, which would divide the Diamondproperty into two separate parcels, the remainder of the propertyafter the taking would be unsuitable for use as an asphalt plant.

Prior to and immediately after receiving this letter,Miller took initial steps to relocate Diamond in an effort toensure Diamond would be able to honor its future contractualobligations. Part of Miller's relocation plans included tradingin and selling some of the components from the old asphalt plantfor a new asphalt plant to be constructed at a new location. Miller talked to asphalt plant manufacturers and learned it wouldtake approximately one year for the delivery and set up of a newplant. Accordingly, Miller began the process of ordering thecomponent parts of a new plant in May 1999.

After the City's December 13, 1999, offer, Millercommunicated for several months with City officials concerningwhether the City could reimburse Diamond for various costs, suchas moving expenses, and whether the City could provide a low-interest loan to Diamond. The City offered virtually no assistance to Diamond, other than the compensation in its originaloffer, so Miller officially informed the City on April 5, 2000,Diamond would not accept the offer of $462,000.

On April 6, 2000, the City filed a condemnation actionto acquire 1.886 acres and a construction easement on 1.04 acresof Diamond's 10-acre tract. On August 1, 2000, the City filed amotion for immediate vesting of title and for temporary easements. The dispute resulting in this appeal began when theCity's appraiser, Wayne Briggs, sent Diamond a second appraisalreport, in which he opined the highest and best use of Diamond'sproperty was not as an asphalt plant, as Briggs stated in hisfirst appraisal. Rather, Briggs' second appraisal listed thehighest and best value as vacant industrial, which greatlyreduced the property's value. Briggs' estimated value of theentire tract as of April 6, 2000, the date the City filed itspetition for condemnation, was $220,000, and the value of thetaking was $111,000.

The record shows as of the date of Briggs' secondappraisal, the following parts of Diamond's asphalt plant remained on the property: oil tanks, large scales, buildings,heating systems, a bag house, shuttle buggy, concrete footingsfor the plant, specialized electric and gas utility services, amasonry building, a crushed stone base, laboratory trailers,concrete ramps, loading docks, and various stockpiles of aggregate and stone used in the production of asphalt. Briggs admitted for the second appraisal he merely drove by the property anddid not physically inspect the premises. He further stated hedid not talk to Miller to ascertain whether Diamond was using theplant for any aspects of its asphalt production. Finally, Briggsadmitted he was not an expert on asphalt plants, he had neverappraised an asphalt plant before his November 9, 1999, appraisalof the Diamond plant, and he did not consult with any leaders inthe industry to aid in his appraisal and determination that anasphalt plant no longer existed on the property.

After Diamond received Briggs' second appraisal, itfiled a traverse and motion to dismiss, citing the strikinglydifferent appraisal values and alleging, in pertinent part, theCity was prohibited from acquiring the property by eminent domainas it had acted in bad faith. The trial court stopped short offinding the City acted in bad faith, but it did state its disapproval of the City's use of the second appraisal in the condemnation proceedings. The trial court did not make a final ruling onthe issue at that time, but it stated fundamental fairnessdictated the highest and best use of Diamond's property wouldlikely be limited to that of an asphalt plant as in the City'sfirst appraisal and before Diamond began its relocation process.

On November 9, 2000, prior to the jury trial to determine just compensation for the taking, Diamond presented a motionin limine seeking to strike Briggs' second appraisal and limitappraisal valuation testimony to the valuation of the property asan asphalt plant facility. The trial court, stating its concernsfor the preservation of fundamental fairness and due process,granted Diamond's motion and stated:

"The mere fact that there have beenitems removed, whether it is 15 of 20 or 5 of20 does not eliminate it from being designated as an asphalt plant. That definitionin and of itself, if you remove tires from acar or an engine from a car doesn't make it,fail to make it a car any longer.

***

*** [T]his [c]ourt stands by its previous opinion that to permit Mr. Briggs to goout there on April the 6th and indicate before a jury, who is to determine not only thehighest and best use, but first and foremostan eminent domain action what is just compensation, and to permit that in this [c]ourt'smind would not go with what I would deem tobe fundamental fairness and due process.

***

I do not find that the City lured the[d]efendant, but I also don't think that theycan benefit in terms of having this propertydefined as something other than an asphaltplant ***."

On November 13, 2000, the case proceeded to trial. Inaddition to the valuation evidence of the City's second appraisal, Diamond's appraiser, Dale Kleszynski, testified thevalue of the entire tract of property before the taking was$1,985,000. He stated as of April 6, 2000, the highest and bestuse of the property was as an asphalt plant, and the damages tothe property after the taking would be $1,847,200. Kleszynskivalued the temporary construction easement at $7,800 and arrivedat a total compensation for the taking of $1,892,800. The juryrendered a verdict in favor of Diamond, in the amount of$1,558,640.

The City filed a posttrial motion, alleging the trialcourt improperly granted Diamond's motion in limine. The trialcourt denied the City's posttrial motion on March 19, 2001, andthe City appeals, contending the trial court abused its discretion in granting Diamond's motion in limine precluding theadmission of Briggs' second appraisal report.

II. ANALYSIS

The City contends the trial court abused its discretionin granting Diamond's motion in limine for four reasons: (1) thevalue of the land taken and damages to the remainder must bedetermined as of the date the condemnation complaint is filed;(2) highest and best use of the property is a question of fact tobe determined by the jury; (3) fundamental fairness cannot changehighest and best use from a matter of fact to a matter of law;and (4) even if fundamental fairness trumps the date of valuationand highest and best use being a matter of fact, there was nolack of fundamental fairness in this case.

A trial court has broad discretion to grant or deny amotion in limine as part of its inherent power to admit orexclude evidence. As such, we will not reverse the trial court'sdecision to grant or deny a motion in limine absent a clear abuseof discretion. People v. Williams, 188 Ill. 2d 365, 369, 721N.E.2d 539, 542 (1999).

The United States and Illinois Constitutions provideprivate property shall not be taken without payment of justcompensation. U.S. Const., amend. V; Ill. Const. 1970, art. I,