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filed:  February 7, 2002

On April 23, 1999, Naperville filed a complaint seeking tocondemn the property located at 420-436 Washington Street (theWashington Street property) in Naperville. This property isapproximately one-third of an acre and is adjacent to the Du PageRiver in Naperville. In its complaint, Naperville alleged that itwas necessary to acquire the property in order to construct certainimprovements to the Naperville River Walk.

The legal owner of the property is defendant Old SecondNational Bank of Aurora, as trustee under a trust agreement datedJuly 21, 1967, and known as trust No. 1046. The beneficiaries ofthe land trust include defendants Delight Michael Ahasic, LeoAhasic, Sr., Jerome Ahasic, and Casper Ahasic (the Ahasics). OnJanuary 11, 2000, the defendants filed a traverse and a motion todismiss. As subsequently amended, the motion alleged variousdefenses, including that Naperville failed to make a bona fideattempt to agree on compensation prior to filing suit.

From August 18, 2000, through August 23, 2000, the trial courtconducted an evidentiary hearing on the defendants' traverse andmotion to dismiss. The following evidence was introduced at thehearing. Beginning in 1997, the Ahasics were involved inlitigation in the circuit court of Kane County to wind up apartnership that they had formed (the partnership litigation). Apparently, this litigation was acrimonious, and there were manydisagreements among the Ahasics concerning the disposition ofcertain partnership property. As part of this litigation, thecircuit court of Kane County entered an order directing that theWashington Street property be sold. Any sale of the property wassubject to the court's approval. Additionally, any partner had theright of first refusal. Steve Stephens was retained as the realestate agent to list and sell the property. Accountant MichaelBeilman was appointed by the circuit court to oversee thedisposition of all the partnership assets.

Stephens subsequently listed the Washington Street Property for $634,000. Stephens arrived at the listing price as a result ofa market analysis he had prepared. In valuing the property,Stephens used three different methods: the cost approach, themarket approach, and the income approach. Stephens determined thatthe value of the property under the cost approach was $532,000; thevalue of the property under the market approach was $572,000; andthe value of the property under the income approach was $634,000. Stephens testified that he decided to utilize the income approachin setting the listing price.

Stephens acknowledged that he was not a licensed real estateappraiser. Stephens also acknowledged that, at the time heperformed the market analysis for the property, he did not have asurvey, a title report, or any environmental survey for theproperty. Stephens testified that his analysis assumed that theproperty was clean and did not have any environmental problems. Stephens acknowledged that the property previously had been used asan automobile dealership. There was also evidence that a drycleaning service had been operated on the property.

In September 1998, Stephens contacted Peter Crawford and toldhim that the property was for sale. Crawford was the architect ofthe Naperville River Walk project. Crawford became interested inthe property and contacted Craig Bloomquist, the assistant citymanager for Naperville. Naperville subsequently obtained anappraisal that valued the property at $500,000. This appraisalassumed that there were no environmental problems associated withthe property. In executive session, Naperville's city councilauthorized a payment of between $250,000 and $300,000 as its shareof the cost of acquiring the property. The Du Page County ForestPreserve District also committed $250,000 as its share of theacquisition cost.

On November 6, 1998, Naperville made its first offer topurchase the property. The offer was for $200,000, and wasconveyed to Beilman and Stephens. In presenting Naperville'soffer, Bloomquist indicated that the offering price of $200,000 wasbased upon potential environmental concerns and the expense thatwould be incurred in demolishing the building on the property. Theoffer contained a due diligence contingency, which allowedNaperville 90 days to investigate the property's environmentalcondition as well as other aspects of the property. The offerprovided that Naperville could terminate the agreement at itsdiscretion after performing these investigations if it determinedthe property was not suited for its intended purpose. The Ahasicsrejected the offer.

After the rejection of this offer, the Naperville city councilauthorized condemnation proceedings to obtain the property. However, the city council instructed Bloomquist to continue tonegotiate with the Ahasics. On February 1, 1999, Bloomquistconveyed an offer to purchase the property for $325,000. Thisoffer contained the same contingencies as the previous offerconcerning the condition of the property. In his lettercommunicating the offer, Bloomquist indicated that the city councilhad authorized condemnation proceedings to obtain the property.This offer was rejected by the Ahasics on February 8, 1999. OnMarch 25, 1999, Bloomquist submitted a third offer in the amount of$425,000, with the same contingencies. The Ahasics also rejectedthis offer.

Other than Naperville's offers, the Ahasics received only oneother written offer to purchase the property. This offer was madeon December 12, 1998, by Valencia, Inc., in the amount of $550,000. However, the offer contained a number of contingencies, including(1) that the Ahasics pay for a Phase I environmental assessment;(2) that the Ahasics remedy any environmental contamination; (3)that the property be rezoned for Valencia's intended and ancillaryuses; and (4) that Valencia could terminate the contract for anyreason whatsoever if it determined the property was not suitablefor its use. The Ahasics made a counteroffer to Valencia to sellthe property for $614,000, on the condition that it withdraw all ofthe contingencies in their offer. Valencia rejected thiscounteroffer, but increased the price of its original offer to$590,000 with the same contingencies detailed above.

On February 3, 1999, Valencia's offer of $590,000 waspresented for approval to the circuit court presiding over thepartnership litigation. The court refused to approve the offerafter Leo Ahasic, Jr., Jerome Ahasic, and Casper Ahasic exercisedtheir right of first refusal and agreed to purchase the property onthe same terms as the offer. After Naperville filed itscondemnation action on April 23, 1999, the circuit court in thepartnership litigation granted leave to Leo Ahasic, Jr., JeromeAhasic, and Casper Ahasic to withdraw their right of first refusal.

After considering all of this evidence and the arguments ofcounsel, the trial court in the instant case granted the traverseand dismissed the condemnation action. Specifically, the trialcourt found that Naperville did not make a reasonable attempt toagree with the Ahasics as to the appropriate compensation for theproperty prior to filing their suit. The trial court explained:

"And I simply believe that the case law strongly suggests thatif there is only one appraisal here, the City knowing thatthere was a lawsuit pending in Kane County, knowing that therewas a difficulty among the owners of this property to evenagree among themselves, certainly had an obligation to atleast meet their appraised value of the property before theyproceeded to condemnation."

Following the denial of its motion to reconsider, Naperville fileda timely notice of appeal.

Prior to addressing the merits, we must first consider amotion that has been taken with the case. The defendants arguethat this appeal should be dismissed on jurisdictional grounds forlack of a final order. After the trial court entered its orderdismissing the complaint, the defendants filed a petition forattorney fees, costs, and expenses pursuant to section 7--123(a) ofthe Code (735 ILCS 5/7--123(a) (West 1998)). Section 7--123(a)permits landowners who successfully defend against a condemnationaction to recover their costs, expenses, and attorney fees. 735ILCS 5/7--123(a) (West 1998)). Because this petition remainedpending at the time this appeal was filed, the defendants arguethat the trial court's ruling on the motion to dismiss was not afinal order. The defendants assert that the order is therefore notappealable absent a finding pursuant to Supreme Court Rule 304(a)(155 Ill. 2d R. 304(a)).

Contrary to the defendant's assertions, however, petitions forattorney fees pursuant to section 7--123(a) of the Code have beenfound to be collateral and incidental to the final judgmentdisposing of a condemnation action. See Town of Libertyville v.Bank of Waukegan, 152 Ill. App. 3d 1066, 1072-73 (1987). Suchpetitions do not attack the trial court's judgment in thecondemnation action and therefore are not considered posttrialmotions for purposes of section 2--1203 of the Code (735 ILCS 5/2--1203 (West 1998)). Bank of Waukegan, 152 Ill. App. 3d at 1072. Assuch petitions do not affect the finality of the trial court'sorder disposing of the condemnation action, they do not nullify theeffect of a notice of appeal filed within 30 days of the trialcourt's final order. Bank of Waukegan, 152 Ill. App. 3d at 1072-73. We therefore conclude that the trial court's order dismissingNaperville's condemnation action was a final order and hold that wehave jurisdiction to hear the appeal.

Naperville's first contention on appeal is that the trialcourt erred in finding that it did not make a reasonable attempt toagree with the Ahasics as to the amount of compensation for theirproperty prior to filing suit. Naperville argues that itnegotiated in good faith and that its offers were reasonableconsidering the possible environmental contamination on theproperty. Naperville argues that the Ahasics never presented itwith a counteroffer during the bargaining process and that it wasnot required to negotiate unilaterally. See County Board of SchoolTrustees v. Batchelder, 7 Ill. 2d 178, 182 (1955); City of OakbrookTerrace v. La Salle National Bank, 186 Ill. App. 3d 343, 351(1989).

Section 7--101 of the Code provides that "[p]rivate propertyshall not be taken or damaged for public use without justcompensation." 735 ILCS 5/7--101 (West 1998). A conditionprecedent to the exercise of the power of eminent domain is anattempt to reach an agreement with the property owner on the amountof compensation. 735 ILCS 5/7--102 (West 1998); Department ofTransportation ex rel. People v. Brownfield, 221 Ill. App. 3d 565,567 (1991). In this regard, the acquiring authority must make abona fide attempt to agree, and the attempt must be made in goodfaith. Brownfield, 221 Ill. App. 3d at 567. Where a grossdisparity exists between the value placed on the property by theacquiring authority and the property owner and where thecircumstances show that no practical solution can be reached, nofurther negotiations are necessary. Oakbrook Terrace, 186 Ill.App. 3d at 351.

The issues raised on the traverse and motion to dismiss werepreliminary questions to be determined by the trial court withouta jury. Brownfield, 221 Ill. App. 3d at 567. The standard ofreview for a ruling on a traverse is whether the trial court'sorder was against the manifest weight of the evidence. Village ofRound Lake v. Amann, 311 Ill. App. 3d 705, 712 (2000). A trialcourt's judgment is against the manifest weight of the evidenceonly if the opposite conclusion is clearly evident. Ikari v. MasonProperties, 314 Ill. App. 3d 222, 228 (2000). During the hearingon a traverse and a motion to dismiss, the credibility of thewitnesses and the weight to be given to their testimony are to bedetermined by the trial court. Brownfield, 221 Ill. App. 3d at567.

After a careful review of the record, we cannot say that thetrial court's finding that Naperville failed to make a bona fideattempt to reach agreement with the Ahasics was against themanifest weight of the evidence. In September 1998, whenNaperville became interested in the property, it obtained anappraisal indicating that the fair market value of the property was$500,000. The city council thereafter authorized the expenditureof $300,000 as its share of the purchase price, and the Du PageCounty forest preserve district committed $250,000 as its share. However, despite the availability of these funds, Napervilleinitially offered $200,000, which was only 40% of the property'sappraised value. The written minutes from Naperville's citycouncil meetings indicate that, although the council was aware ofthe property's appraised value of $500,000, the council was onlywilling to offer up to 50% of the property's purchase price.

After the Ahasics' rejection of this initial offer,Naperville's city council enacted an ordinance authorizing theinitiation of condemnation proceedings on the property. Naperville's remaining negotiations with the Ahasics were thenprefaced with the threat that the city would initiate condemnationproceedings against the property. Naperville's subsequent offersof $325,000 and $425,000 were also lower than the property'sappraised fair market value.

Naperville posits two different reasons why it did not offerthe property's appraised market value. First, Naperville contendsthat the environmental condition of the property was unknown andthat the city might have incurred significant expense to clean anycontamination. Naperville notes that the $500,000 appraisalassumed that there was no environmental contamination on theproperty. However, such an argument is unpersuasive in light ofthe fact that Naperville's offer to purchase the property wascontingent upon the performance of environmental testing. Thecontract allowed Naperville to terminate the agreement at itsdiscretion based upon the results from such testing. As thecontract protected Naperville from going through with the sale inthe event of environmental contamination, we fail to understand whyany discounting of the purchase price was necessary.

The second reason advanced by Naperville for why it did notoffer the appraised value was that it that it had an obligation toits taxpayers to acquire the property for the lowest pricepossible. Although we would certainly not dispute that cost-efficiency is generally a legitimate government interest, it mustbe balanced against the right of a property owner to get faircompensation for property that is being taking by the condemningauthority. See 735 ILCS 5/7--101 (West 1998) ("Private propertyshall not be taken or damaged for public use without justcompensation ***"). The negotiations that precede a condemnationproceeding cannot be viewed in the same manner as negotiationsbetween a private buyer and seller. In a private negotiation,either party can walk away from the negotiation if the price is notright. However, in a condemnation proceeding, the property ownerdoes not have the same luxury. If the property owner cannot agreeto compensation with the condemning authority, he will incur thecost and expense of defending against a condemnation proceeding inorder to secure the payment of the fair market value of theproperty. It is for this reason that the condemning authority mustmake a good-faith effort to negotiate prior to filing suit.

A review of Illinois case law also refutes Naperville'sassertion that it may seek to acquire the property for a bargainprice. In cases where Illinois courts have found that thecondemning authority had satisfied its statutory obligation to makea bona fide attempt to agree, the condemning authorities offered topurchase the properties for their appraised value. See Peoples GasLight & Coke Company v. Buckles, 24 Ill. 2d 520, 526-28 (1962);Brownfield, 221 Ill. App. 3d at 566-69; City of Oak Brook Terracev. La Salle National Bank, 186 Ill. App. 3d 343, 351 (1989);Waukegan Port District v. Booras, 55 Ill. App. 3d 790, 792-94(1977). Indeed, our research has uncovered only one case in whichthe condemning authority failed to offer the appraised value, andin that case the court found that the condemning authority hadfailed to negotiate in good faith. See Forest Preserve District v.Marquette National Bank, 208 Ill. App. 3d 823, 827 (1991). Although we are aware of no legal requirement that the condemningauthority must offer the appraised value of the property in orderto satisfy the negotiation requirements of section 7--102, wenonetheless believe that good faith requires that the condemningauthority offer a price that correlates to the fair market value ofthe property as determined by the condemning authority.

Here, Naperville's appraiser valued the property at $500,000. This valuation does not appear excessive in light of the fact thata third party offered $590,000 for the property. AlthoughNaperville asserts that the property was worth less than thisbecause of potential environmental problems, it has failed tosubstantiate this claim with anything other than speculation. Wenote that the burden of proof to show good-faith negotiation fallsupon the condemning authority. See Oak Brook Terrace, 186 Ill.App. 3d at 348. Naperville failed to offer any evidence at thehearing that the value of the property was less than the $500,000appraised value. As its offers for the property were substantiallyless than this amount, we do not believe that Naperville satisfiedits statutory obligation to negotiate in good faith.

Naperville also maintains that it was excused from attemptingfurther negotiation because the Ahasics never presented anycounteroffers to sell the property. Naperville argues that the lawdoes not require it to negotiate unilaterally. See Oak BrookTerrace, 186 Ill. App. 3d at 351. Although we agree that the lawdoes not require the condemning authority to unilaterally continuenegotiations when it has already offered the fair market value ofthe property, there is no evidence appearing in the record thatNaperville ever offered to purchase the property for its fairmarket value. It would be unreasonable to expect that the Ahasicswould be willing to negotiate when Naperville repeatedly madeoffers that were well below the market value of the property. Accordingly, for all the reasons discussed above, we do not believethat Naperville fulfilled its statutory obligation to make a good-faith attempt to agree on compensation prior to filing suit.

Naperville's second contention on appeal is that it was notrequired to negotiate because the Ahasics were incapable ofconsenting to the sale of the property. Section 7--102 of the Codeprovides that the condemning authority may file a condemnationaction without first attempting to negotiate with the propertyowner in instances where "the owner of the property is incapable ofconsenting." 735 ILCS 5/7--102 (West 1998). Naperville arguesthat, in light of the contentious partnership litigation betweenthe Ahasics, it was apparent that the Ahasics would be unable toagree on the sale of the property and were therefore incapable ofconsenting for purposes of the statute. Naperville also arguesthat the Ahasics were incapable of consenting to the sale of theproperty because the circuit court in the partnership litigationhad to approve any sale of the property.

This argument is without merit. That portion of section 7--102 that excuses negotiation in instances where "the owner of theproperty is incapable of consenting" applies only where there is alegal impediment that prevents the property owner from consenting. See Davis v. Northwestern Elevated Ry. Co., 170 Ill. 595, 600(1897). For example, the condemning authority need not negotiatewith a minor, as a minor is without legal capacity to enter intocontracts. Davis, 170 Ill. at 600. However, we do not believethat the Ahasics were legally incapable of consenting to the saleof the property merely because there were disagreements among them. Nor do we believe that they were incapable of consenting becausethe circuit court in the partnership litigation had to approve anysale of the property. The Ahasics retained the legal authority toentertain offers on the property and to bring such offers to thecircuit court for approval. Accordingly, we decline to apply thestatutory exception and conclude that Naperville was obligated tomake a good-faith attempt to agree prior to filing suit.

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

Affirmed.

HUTCHINSON, P.J., and CALLUM, J., concur.