County of St. Clair v. Wilson
State: Illinois
Court: 5th District Appellate
Docket No: 5-95-0540
Case Date: 10/09/1996
No. 5-95-0540
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
_________________________________________________________________
THE COUNTY OF ST. CLAIR, A Municipal ) Appeal from the
Corporation, ) Circuit Court of
) St. Clair County.
Plaintiff-Appellee, )
)
v. ) No. 93-ED-15
)
NANCY WILSON, ELEANOR GOETTE, )
EDGAR ENSLIN, PAUL HAAS, )
St. Clair County Treasurer, and )
UNKNOWN OWNERS, ) Honorable
) James M. Radcliffe,
Defendants-Appellants. ) Judge, presiding.
_________________________________________________________________
JUSTICE CHAPMAN delivered the opinion of the court:
On September 29, 1993, plaintiff, St. Clair County (the
County), filed an eminent domain action to acquire 65.11 acres of
land from defendants Nancy Wilson, Eleanor Goette, and Edgar
Enslin, Jr. (owners). The land borders Scott Air Force Base (the
base) in St. Clair County, Illinois, and the owners' property is
one of about 100 properties the County has sought to condemn for
the development of a joint-use airport which is to be located on
the base. The central issue at trial was the fair market value of
the owners' 65.11 acres. After hearing the testimony from the six
appraisal experts, who espoused values ranging from $210,000 to
$600,000, the jury returned a verdict of $250,000.
The owners raise six arguments: (1) the court erred in barring
the testimony of a bank manager concerning offers to purchase a
parcel of land near the land at issue; (2) the court erred in
denying the owners' motion in limine which sought to prevent the
jury from learning that the County's appraiser had previously been
retained by the owners in the same matter; (3) the court erred in
denying the owners' motion to strike the testimony of one of the
County's appraisers because he improperly reached his conclusion;
(4) the court erred in barring the testimony of one of the owners'
witnesses on alleged admissions made by the county board chairman
before the St. Clair County Farm Bureau; (5) the court erred in
permitting the County's attorney to inquire about the possible
postfiling closing of the nearby Air Force base; and (6) the owners
are entitled to a new trial because the County violated its own
order in limine when one of its witnesses testified to the source
of funding for the property at issue.
Barring Testimony of Offers to Purchase
The owners first argue that the court erred in barring the
testimony of Dan Davis, the vice president and farm manager for
Magna Trust Company. Magna Trust was the guardian of the Boettcher
estate, which owned 82.25 acres of vacant land immediately west of
the property at issue. At the May 1, 1995, pretrial conference,
the County's attorney moved to bar Davis's testimony concerning
offers Davis received from third parties to purchase some or all of
the 82.25 acres from the Boettcher estate. The County argued that,
in eminent domain cases, data of comparable sales, rather than mere
offers to purchase, must be used by courts to determine the value
of property. The County concedes that in some cases evidence of
offers to purchase has been admitted, but, the County points out,
those offers to purchase concerned the subject property only, and
the County urges this court not to extend that narrow exception.
The owners argued that evidence of offers to purchase adjacent
property, which is similar in size and location and uses the same
utilities and fronts on the same roads as the subject property,
should have been presented to the jury. The trial court agreed
with the County and barred Davis's testimony. We reverse the trial
court's grant of the County's oral motion in limine regarding the
introduction of evidence of offers to purchase made on the
Boettcher estate property.
In an eminent domain proceeding the only question for a jury
to determine is the just compensation to be paid to the owner of
the property sought to be condemned. Department of Transportation
v. White, 264 Ill. App. 3d 145, 149, 636 N.E.2d 1204, 1208 (1994).
Just compensation is defined as the fair market value of the
property at its highest and best use on the date the complaint was
filed. Department of Transportation ex rel. People v. Central
Stone Co., 200 Ill. App. 3d 841, 843, 558 N.E.2d 742, 744 (1990).
Fair market value is the amount of money which a willing buyer
under ordinary circumstances would pay to a willing owner in a
voluntary sale, where neither party is under any obligation to buy
or sell. People ex rel. Department of Transportation v. Birger,
155 Ill. App. 3d 130, 134, 507 N.E.2d 1321, 1324 (1987).
In Department of Public Works & Buildings v. Lambert, 411 Ill.
183, 191, 103 N.E.2d 356, 360 (1952), the Illinois Supreme Court
stated:
"The rule is established in this State that, in the
absence of evidence of actual sales, bona fide offers to
purchase for cash by persons able to buy are some
evidence of what the property would sell for." (Emphasis
added.)
The County relies upon the emphasized language and argues that
because the County offered evidence of actual sales of similar
property, evidence of offers made on similar property was not
admissible. In addition, the County argues that even if evidence
of bona fide offers to purchase the Boettcher property were
admissible, the offers the owners wanted to introduce were not bona
fide.
The owners argue that Rule 703 of the Federal Rules of
Evidence, as adopted by the Illinois Supreme Court in Wilson v.
Clark, 84 Ill. 2d 186, 417 N.E.2d 1322 (1981), makes evidence of
bona fide offers to purchase admissible. Rule 703 states:
"The facts or data in the particular case upon which an
expert bases an opinion or inference may be those
perceived by or made known to him at or before the
hearing. If of a type reasonably relied upon by experts
in the particular field in forming opinions or inferences
upon a subject, the facts or data need not be admissible
in evidence." Fed. R. Evid. 703.
Both parties rely on City of Chicago v. Anthony, 136 Ill. 2d
169, 554 N.E.2d 1381 (1990), for their respective positions. The
owners focus on a single sentence in Anthony:
"Rule 703 was intended to `bring the judicial practice
into line with the practice of the experts themselves
when not in court.'" Anthony, 136 Ill. 2d at 184, 554
N.E.2d at 1388 (quoting Fed. R. Evid. 703, Advisory
Committee's Note).
The owners argue that to prohibit the jury from hearing
evidence of the offers to purchase, when the appraisers testified
they would have considered them in forming their valuation of the
subject property had they known about them, was not "in line with
the practice of the experts themselves when not in court."
The County relies on another portion of Anthony:
"If another rule of law applicable to the case excludes
the information sought to be relied upon by the expert,
the information may not be permitted to come before the
jury under the guise of a basis for the opinion of the
expert.
* * *
In this case, it is eminent domain law which
controls the admissibility of evidence for its truth as
well as for the limited purpose of explaining the basis
for an expert's opinion pursuant to Rule 703." Anthony,
136 Ill. 2d at 186-87, 554 N.E.2d at 1389.
The justification for Rules 703 and 705 (Fed. R. Evid. 705) is
discussed in McCormick on Evidence:
"[U]nder Rule 703 (and Rule 705) an expert may give a
direct opinion upon facts and data, including reports,
which are inadmissible or not introduced into evidence,
provided the reports or other data are `of a type reason-
ably relied upon by experts in the particular field in
forming opinions or inferences upon the subject.' This
view is justified on the ground that an expert in a
science is competent to judge the reliability of state-
ments made to him by other investigators or technicians.
He is just as competent indeed to do this as a judge and
jury are to pass upon the credibility of an ordinary
witness on the stand. If the statements, then, are
attested by the expert as the basis for a judgment upon
which he would act in the practice of his profession, it
seems that they should ordinarily be a sufficient basis
even standing alone for his direct expression of profes-
sional opinion on the stand, and this argument is
reinforced when the opinion is founded not only upon
reports but also in part upon the expert's firsthand
observation. The data of observation will usually enable
the expert to evaluate the reliability of the statement."
1 J. Strong, McCormick on Evidence 15, at 64-65 (4th ed.
1992).
In Anthony, an eminent domain case, the supreme court held
that it was for the trial court, in its discretion, to determine
whether the underlying facts upon which an expert based an opinion
were of a type reasonably relied upon by experts in their field.
In this case, all of the experts on both sides indicated that bona
fide offers to purchase property such as the Boettcher estate tract
would be relied upon by them in evaluating the property at issue.
No one indicated that such offers were not reliable. Under these
circumstances we conclude that the trial court abused its discre-
tion in excluding all the offers.
The admission of testimony about offers to purchase is not
dependent upon the presence or absence of evidence of comparable
sales figures. Evidence of comparable sales data may be of
superior quality in some cases, but its mere presence does not
automatically exclude evidence of offers to purchase. The question
to be addressed is not whether comparable sales data were avail-
able; it is whether the offers to purchase were such that they
would meet the requirements of Rules 703 and 705. If they were,
they should be allowed. See Department of Transportation v.
Beeson, 137 Ill. App. 3d 908, 485 N.E.2d 511 (1985).
The County contends that, even if the offers to purchase met
the requirements of Rules 703 and 705, they were properly excluded
because the owners did not prove that they were bona fide offers to
purchase. An offer is bona fide when it is made in good faith, by
a person of good judgment, who is acquainted with the value of real
estate and possesses a sufficient ability to pay. Anthony, 136
Ill. 2d at 188, 554 N.E.2d at 1390. The offer must be for cash,
rather than for credit or in exchange, and it must be made with
reference to the property's fair market value. Anthony, 136 Ill.
2d at 188, 554 N.E.2d at 1390 (quoting City of Chicago v. Harrison-
Halsted Building Corp., 11 Ill. 2d 431, 438, 143 N.E.2d 40, 45
(1957)).
At the time the court granted the County's motion in limine,
the only evidence of the bona fide nature of the offers to purchase
was Davis's affidavit stating that the offers were bona fide. To
the extent that the court's ruling was based upon a finding that
the offers to purchase were not bona fide, that finding was against
the manifest weight of the evidence.
Expert Previously Retained by Owners
The owners' second argument is that the court erred in denying
their motion in limine which sought to prevent the jury from
learning that Albert Seppi, an appraiser called by the County at
trial, had previously been retained by the owners in the same
matter. The County argued that appraisers are expert witnesses and
are subject to the same rules as any other expert. Furthermore,
according to the County, the issue of which side retained an expert
goes to the expert's credibility and should therefore be admissi-
ble.
The eminent domain cases that have previously dealt with this
issue have held that it is proper to exclude the fact that an
appraiser was originally retained by the opposing party who decided
not to call the appraiser as a witness. See Department of Business
& Economic Development v. Schoppe, 1 Ill. App. 3d 313, 272 N.E.2d
696 (2d Dist. 1971); Department of Public Works & Buildings v.
Guerine, 19 Ill. App. 3d 509, 311 N.E.2d 722 (2d Dist. 1974);
Department of Public Works & Buildings v. Exchange National Bank,
40 Ill. App. 3d 623, 356 N.E.2d 376 (2d Dist., 2d Div. 1976);
Department of Public Works & Buildings v. Hall, 30 Ill. App. 3d
831, 333 N.E.2d 701 (2d Dist., 2d Div. 1975); Department of
Transportation v. Gonterman, 41 Ill. App. 3d 62, 354 N.E.2d 76 (5th
Dist. 1976).
Department of Public Works & Buildings v. Guerine, 19 Ill.
App. 3d 509, 311 N.E.2d 722 (1974), was the first case to discuss
this issue in depth. Guerine provided two reasons why a court did
not err in granting a motion in limine when the opposing party
originally hired the appraiser. Guerine, 19 Ill. App. 3d at 513-
14, 311 N.E.2d at 725-26. First, introduction of the appraiser's
prior employment relationship could arouse the jury's emotions of
prejudice, and second, it could create a collateral issue that
would distract the jury from the main issue of determining just
compensation. Guerine, 19 Ill. App. 3d at 513-14, 311 N.E.2d at
725-26. Guerine acknowledged that there is arguably some probative
value in the admission of an expert appraisal witness's prior
employment relationship with one of the parties, but the court
stated that any probative value was outweighed by the prejudice and
the creation of collateral issues caused by the testimony.
Guerine, 19 Ill. App. 3d at 513-14, 311 N.E.2d at 725-26.
Guerine and the line of cases which follow it were all decided
before the Illinois Supreme Court adopted Supreme Court Rule 220
(103 Ill. 2d R. 220). Rule 220 was repealed by an order entered
June 1, 1995, to be effective on January 1, 1996, but the amended
rules do not differ in their demand that experts be disclosed.
Compare 134 Ill. 2d R. 220 with Official Reports Advance Sheet No.
20 (September 27, 1995), R. 220, effective January 1, 1996. Rule
220 and its successor provisions of the supreme court's rules on
the discovery of experts do not distinguish between types of cases
on the issue of expert identification and disclosure. The rules
apply equally to all types of cases. We therefore decline to
follow Guerine and the line of cases which follow it, all of which
create a different rule for appraisal experts in eminent domain
cases. We see no reason to treat them differently from other
experts. See Beeson, 137 Ill. App. 3d 908, 485 N.E.2d 511.
What is the general rule when one party retains an expert and
decides not to call the expert, who is then called by an adverse
party? Can the employment by the original party be disclosed to
the jury? We believe that such a disclosure is appropriate as a
general rule. In Taylor v. Kohli, 162 Ill. 2d 91, 642 N.E.2d 467
(1994), the supreme court addressed both the agency status of
experts and the appropriateness of giving the missing-witness
instruction (see Illinois Pattern Jury Instructions, Civil, No.
5.01 (1995)) if the retaining party fails to call the expert.
On the first point, the court ruled that experts are not the
agents of those who employ them and therefore experts' statements
are not admissions by those who retain them. On the second point,
the court acknowledged that the instruction may be proper (Scha-
ffner v. Chicago & North Western Transportation Co., 129 Ill. 2d 1,
541 N.E.2d 643 (1989)), but the court held that, if the original
employer of the expert abandons the expert sufficiently in advance
of trial that the opposing party is made aware of it and can act on
the abandonment, then the instruction can be refused.
We acknowledge that Taylor does not specifically address the
issue before us, but we conclude that the supreme court would
reason that allowing the disclosure of the identity of an expert's
original employer would not be considered an abuse of discretion
under the circumstances of this case except for one factor, and
that factor is the line of cases, including a case from this
district (Department of Transportation v. Gonterman, 41 Ill. App.
3d 62, 354 N.E.2d 76 (1976)), in the owners' favor at the time this
case was tried. Counsel for the owners contends, without any
challenge, that he could have avoided the disclosure of Seppi's
retention by naming him a "consultant" instead of an "expert" under
Rule 220 or an "opinion witness" under Rule 220's successor
provision. 134 Ill. 2d R. 213; Official Reports Advance Sheet No.
20 (September 27, 1995), R. 213, effective January 1, 1996.
Counsel also contends, again without challenge, that he would not
have disclosed Seppi but for his reliance upon the cases, including
Gonterman, that we have refused to follow. Under these circum-
stances, we conclude that it was not appropriate for the trial
court to allow the original retention of the expert Seppi by the
owners to be disclosed to the jury, and on remand that should not
be allowed.
Strike Expert Testimony
The owners next argue that the court erred in denying their
motion to strike the testimony of Albert Seppi, an appraiser called
by the County, because Seppi improperly reached his conclusion by
adding together a separate appraised value for the land and for the
improvements on the land. The County responds that the appraiser
valued the unit as a whole and therefore the court did not err in
denying the owners' motion to strike Seppi's testimony.
In eminent domain cases, the measure of recovery for damage to
private property caused by a public improvement is the loss of
value to the property as a whole (Department of Public Works &
Buildings v. Lotta, 27 Ill. 2d 455, 456, 189 N.E.2d 238, 240 (1963)
(citing County Board of School Trustees of Ogle County v. Elliott,
14 Ill. 2d 440, 152 N.E.2d 873 (1958)) and is not the sum of the
value of the building and the value of the land computed separate-
ly. Lotta, 27 Ill. 2d at 456, 189 N.E.2d at 240; Department of
Transportation v. White, 264 Ill. App. 3d 145, 150, 636 N.E.2d
1204, 1208 (1994). This rule is based on the principle that "`the
fair cash market value of improved real estate is not necessarily
a total of the separate land and building appraisals.'" Lotta, 27
Ill. 2d at 457, 189 N.E.2d at 240 (quoting City of Chicago v.
Giedraitis, 14 Ill. 2d 45, 51, 150 N.E.2d 577, 580 (1958)). For
example, the value of unimproved land adaptable to a multitude of
uses may diminish when a building is erected and commits the land
to a particular use. Lotta, 27 Ill. 2d at 456-57, 189 N.E.2d at
240. Similarly, a building may not be worth the cost to build it
if the location is not a desirable location. Lotta, 27 Ill. 2d at
457, 189 N.E.2d at 240. Illinois courts have repeatedly held that
it is improper to present appraisal testimony which applies
separate dollar values to the land and the improvements on the
land, because of concern that such testimony could mislead or
confuse the jury. See Department of Transportation v. Schlechte,
94 Ill. App. 3d 187, 190, 418 N.E.2d 1000, 1002 (1981).
In this case, the record supports the County's argument that
appraiser Seppi did not first assign separate values to the
improvements on the owners' property and to the land and then
merely add these values together to reach the total appraisal
value. On cross-examination, Seppi vehemently and consistently
denied such behavior.
In making its ruling to deny the striking of Seppi's testimo-
ny, the trial court said:
"The Court is satisfied that, unequivocally, Mr. Seppe
[sic] has responded to your questions, and has been
steadfast in his position that he valued this property as
a whole, that his methodology was valuation as a whole."
We find nothing in the record to suggest that the court abused
its discretion on this point.
Baricevic's Testimony
The owners next argue that the court erred in barring the
testimony of John Baricevic, St. Clair County Board Chairman and
former State's Attorney, concerning alleged statements he made
before the St. Clair County Farm Bureau. The court granted the
County's motion in limine seeking to preclude statements made by
John Baricevic to the farm bureau concerning the joint-use airport.
The owners argue that the statement was inconsistent with the
County's position at trial because the County's appraisers had all
concluded that the highest and best use of the property was
agricultural. The owners argue that the statements attributed to
Baricevic should have been admissible as an admission.
The statement was not an admission by a party opponent because
the alleged statement does not specifically relate to the owners'
property. "As a general rule any statement, written or not, made
by a party or in his behalf which was inconsistent with his present
position may be introduced into evidence against him." Nelson v.
Union Wire Rope Corp., 31 Ill. 2d 69, 115, 199 N.E.2d 769, 794
(1964). However, the statement does not specifically relate to the
owners' property. Baricevic's alleged statements were reported in
the "Farm Bureau Notes of St. Clair County", a newsletter published
in March 1991, bearing a subscription price of 75 cents. An
article entitled "Current Issues" reported on issues discussed at
a meeting between local farm bureau leaders and County Board
Chairman Baricevic. The article did not quote Baricevic but merely
summarized what the reporter recollected. The article stated in
relevant part:
"The group questioned Baricevic on the County's
plans to use eminent domain for airport land acquisition.
Baricevic said that the County has budgeted for land
acquisition at its highest and best use rather than at
its agricultural value. He said realtors indicate that
land in the area, depending on its location relative to
major roads, is now bringing a price of between $6,500
and $10,000 an acre."
This statement is not inconsistent with the County's position
at trial. The evidence in this case shows that there were over 100
parcels of land to be acquired for the joint-use project. As
Baricevic's alleged statement suggests, all parcels were valued
according to their own merits. The statement does not indicate
which parcels Baricevic was discussing. Accordingly, we cannot say
that the trial court erred in refusing to admit this testimony.
In view of the fact that the matter is being reversed and
remanded on the first two issues, the last two issues, numbers five
and six, require little discussion.
Post-Filing Activities
As to issue five, the parties agree that property is to be
valued as of the date of filing the complaint to condemn.
Therefore, inquiry into postfiling activity should be avoided
during the retrial of this matter.
Source of Funding
Finally, as to issue number six, the parties agree that the
statements made by Mr. Lunte about the source of funding for the
property were inappropriate, and they should not recur on retrial.
In summary, we reverse on issues one and two and remand for a
new trial.
Reversed and remanded.
WELCH, J., and GOLDENHERSH, J., concur. NO. 5-95-0540
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
___________________________________________________________________________
THE COUNTY OF ST. CLAIR, A Municipal ) Appeal from the
Corporation, ) Circuit Court of
) St. Clair County.
Plaintiff-Appellee, )
)
v. ) No. 93-ED-15
)
NANCY WILSON, ELEANOR GOETTE, )
EDGAR ENSLIN, PAUL HAAS, )
St. Clair County Treasurer, and )
UNKNOWN OWNERS, ) Honorable
) James M. Radcliffe,
Defendants-Appellants. ) Judge, presiding.
___________________________________________________________________________
Opinion Filed: October 9, 1996
___________________________________________________________________________
Justices: Honorable Charles W. Chapman, J.
Honorable Thomas M. Welch, J., and
Honorable Richard P. Goldenhersh, J.,
Concur
___________________________________________________________________________
Attorney Harry J. Sterling, Harry J. Sterling, P.C., #6 Canty
for Lane, Fairview Heights, IL 62208
Appellant
___________________________________________________________________________
Attorneys Bernard J. Ysursa, Cook, Shevlin, Ysursa, Brauer &
for Bartholomew, Ltd., 12 West Lincoln Street, Belleville, IL
Appellee 62220-2085
___________________________________________________________________________
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