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No. 2--01--0870

Supplemental Opinion Upon Denial of Rehearing

Defendants, 151 Interstate Road Corporation and Jane A. Green as trustee and Edward H. Green, Jr., as successor trustee of tworevocable trusts, previously appealed an order of the circuit courtof Du Page County denying their traverse and motion to dismiss,which they filed in response to an eminent domain proceedinginitiated by plaintiff, the Illinois Department of Transportation(IDOT). We reversed and remanded with directions. See IllinoisDepartment of Transportation v. 151 Interstate Road Corp., No. 2--01--0870 (May 30, 2002). IDOT subsequently filed a petition forrehearing. On our own motion, we requested defendants to respondto the petition. Defendants have done so, and IDOT has filed areply brief. IDOT takes issue with two portions of our earlieropinion. First, IDOT contests our conclusion that it failed to actin good faith prior to initiating the present litigation. Second,IDOT contends that our construction of section 7--102.1 of theEminent Domain Act (Act) (735 ILCS 5/7--102.1 (West 2000)) iserroneous. After careful consideration, we deny IDOT's petitionfor rehearing. Our original opinion issued in this matter containsan extensive discussion of the facts, which we will not repeathere.

Before addressing these issues, we acknowledge defendants'understandable and legitimate complaint that they are being forcedto relitigate issues on rehearing that should have been addressedin IDOT's initial brief. IDOT's initial brief was nearly devoid ofauthority. In its petition for rehearing, IDOT acknowledges thisomission as well as the prohibition against using a petition forrehearing as a vehicle for rearguing a case (see 155 Ill. 2d R.367(b)). Generally, points not argued are waived and may not beurged on rehearing. Official Reports Advance Sheet No. 21 (October17, 2001), R. 341(e)(7), eff. October 1, 2001. This rule is notjurisdictional and may be relaxed as the need for a just result anda uniform body of precedent mandates. Catalano v. Pechous, 69 Ill.App. 3d 797, 814 (1978). IDOT urges that this exception applies inthe present case. We agree to an extent. In its petition, IDOTraises several important points that warrant this court'sattention. However, as the Greens have already been put to theeffort and expense of litigating this matter in the trial court andonce on appeal, we will not apply the waiver rule to theirprejudice.

In fact, the expense of litigation to which the Greens werethus far exposed brings us to the central issue underlying IDOT'sfirst contention: Who should bear the cost of a deficientappraisal? IDOT argues that, in determining whether it acted ingood faith, a condition precedent to filing suit (Department ofTransportation ex rel. People v. Brownfield, 221 Ill. App. 3d 565,567 (1991)), it should be judged in light of what information wasavailable to it at each step in the negotiation and condemnationprocess. While this argument has some appeal, it completelyremoves from IDOT any responsibility to police its appraisers orverify that an appraisal upon which it is relying is valid. Ofcourse, removing this responsibility from IDOT places it upon theowner of a parcel that IDOT seeks to acquire.

Requiring property owners to bear the burden of identifyingdefective appraisals places them between the Scylla of accepting aninadequate offer and Charybdis of incurring the expense ofcontesting the offer. One provision of the Act, however, allows aproperty owner to escape this dilemma. If a condemnation action isdismissed, a property owner may recoup attorney fees and costsincurred in defending the action. See Libertyville v. Bank ofWaukegan, 152 Ill. App. 3d 1066, 1072-73 (1987). Because the goodfaith of the condemnor in seeking an agreement is a conditionprecedent to the filing of a condemnation action, the lack of goodfaith on the part of the condemnor requires the dismissal of theaction. See City of Springfield v. West Koke Mill DevelopmentCorp., 312 Ill. App. 3d 900, 907-08 (2000). This refuge would beillusory in cases involving flawed appraisals if a condemnor werepermitted to rely blindly on any appraisal it received. If goodfaith does not subsume some responsibility to insure that acondemnor is proceeding based upon a reasonable appraisal, aproperty owner could never secure a dismissal in a case like thepresent one, and, as a result, the cost of policing the condemnor'sappraisers would fall solely on the property owner.

IDOT charges that we have created a netherworld between goodfaith and bad faith. For IDOT, good faith, in the context of acondemnation, is simply the absence of bad faith. Given this view,IDOT's position that it acted in good faith simply because it wasignorant of certain defects in the appraisal on which it wasrelying becomes understandable. If good faith is merely theabsence of bad faith, IDOT's ignorance would defeat any claim thatit was acting with some untoward mental state.

We recognize that the term "good faith" is used in manycontexts in the law and that it does not have one universallyaccepted meaning. Black's Law Dictionary, for example, providesseveral not-entirely-overlapping definitions. Black's LawDictionary 701 (7th ed. 1999) (defining "good faith" as "A state ofmind consisting in (1) honesty in belief or purpose, (2)faithfulness to one's duty or obligation, (3) observance ofreasonable commercial standards, or (4) absence of intent todefraud or to seek unconscionable advantage"). One widely acceptedmeaning, which occurs in a variety of contexts, interprets "goodfaith" to mean something more than the absence of bad faith.

For example, in Glass v. Peitchel, 42 Ill. App. 3d 240 (1976),the court considered whether a parent had demonstrated good faithin not seeking employment such that it was appropriate to abatechild-support payments. The Glass court made the followingobservation:

"[I]t appears to us that child support payments may properlybe abated or reduced where an inability to pay results frominvoluntary loss of employment, but we think that such reliefshould be temporary in nature in the sense that thepetitioning party should be required within a reasonable timeto establish that continued unemployment was in good faith;i.e., was the result of mental or physical disability orunsuccessful attempts to obtain other employment." Glass, 42Ill. App. 3d at 243.

Thus, the Glass court required a parent, in the absence of mentalor physical disability, to make actual efforts to obtain employmentin order to remain in good-faith compliance with his or herobligations. Sitting by idly, ignorant of potential jobopportunities, is insufficient to show good faith. While ignoranceof the availability of employment would tend to negate an inferencethat the parent was deliberately avoiding working, the Glass courtmade clear that such a course of action would be incompatible withgood faith.

In fact, many courts in many situations have refused to equate"good faith" with the simple lack of bad faith. See Cayuga IndianNation v. Pataki, 165 F. Supp. 2d 266, 299 (N.D.N.Y. 2001) ("Inlight of the foregoing, in demonstrating its good faith the Statemust show more than simply the absence of bad faith"); Garrett v.St. Elizabeth Health Center, 142 Ohio App. 3d 610, 613, 756 N.E.2d698, 700 (2001) ("A lack of a good faith effort to settle is notsynonymous with bad faith"); Hoots v. Pennsylvania, 118 F. Supp. 2d577, 612 (W.D. Pa. 2000) ("Good faith, though, requires more thansimply an absence of bad faith"); Freeman v. Pitts, 503 U.S. 467,499, 118 L. Ed. 2d 108, 139-49, 112 S. Ct. 1430, 1450 (1992) ("Withrespect to those areas where compliance had not been achieved, theDistrict Court did not find that DCSS had acted in bad faith orengaged in further acts of discrimination since the desegregationplan went into effect. This, though, may not be the equivalent ofa finding that the school district has an affirmative commitment tocomply in good faith with the entirety of a desegregation plan, andfurther proceedings are appropriate for this purpose as well");Port Susan Chapel of the Woods v. Port Susan Camping Club, 50 Wash.App. 176, 185-86, 746 P.2d 816, 821 (1987) ("Counsel mustappreciate that good faith in advancing an argument consists ofsomething more substantial than merely an absence of bad faith");Penney v. Superior Court, 28 Cal. App. 3d 941, 953-54, 105 Cal.Rptr. 162, 171 (1972) ("Clearly, a good faith decision not toprosecute on the basis of insufficient evidence should beclassified as something more than an absence of bad faith indetermining whether a defendant can receive a fair trial"). Inshort, we have created no netherworld. We have ascribed to "goodfaith" a meaning that many courts have given it. While "goodfaith" may mean different things in different contexts, we areconvinced that, in the context of a condemnation, it meanssomething more than the lack of bad faith.

What that "something more" is may be difficult to define. Atthe very least, however, it entails that a condemning authoritytake some responsibility to ensure that property owners are treatedfairly. Given the facts of this case (see Illinois Department ofTransportation v. 151 Interstate Road Corp., No. 2--01--0870 (May30, 2002)), it is clear that IDOT did not live up to thisresponsibility in its treatment of the Greens. IDOT, by relying ona deficient appraisal, placed them in the position of having tolitigate. Their only possible recourse was to demonstrate thatIDOT lacked good faith in its treatment of them. We conclude that,by demonstrating that IDOT relied on a completely deficientappraisal, they successfully showed a lack of good faith, which, inturn, mandated the dismissal of the instant action.

Except for two points, we will not revisit our conclusion thatthe appraisal IDOT relied on was completely deficient. IDOTworries that we have imposed on it a duty to monitor "hundreds andthousands of sales that are recorded in the public records eachyear to ferret out sales which may have occurred after it receivedits appraisals and which may be relevant" to an appraisal. We haveimposed no such duty. We criticized Armstrong's explanation of whyhe failed to include a certain sale as a comparable in hisappraisals. The sale occurred after Armstrong's initial appraisalsbut prior to his final one. Armstrong explained that the propertywas not a valid comparable because of the principle of"substitution," by which he meant that a potential buyer of theGreens' property would not be interested in this parcel due to itssmall size. Armstrong later admitted that he used a property one-sixth the size of the Greens' as a comparable. We included thiscriticism not to impose any duty on condemnors to monitor the realestate market in the months following an appraisal; rather, weincluded it because Armstrong's explanation defied credulity.

IDOT also questions our reliance on the potential forfinancial bias present in its relationship with Armstrong. Overthe two years preceding the trial, IDOT paid Armstrong's employerover $161,000 based on his work. This accounts for about half hiswork and makes IDOT Armstrong's largest account. Armstrong is paida commission based on revenue generated from clients. IDOT arguesthat these facts reflect the fact that it must, of necessity, usea limited number of appraisers familiar with eminent domainappraisal work. IDOT's plight is not unique. All parties who musthire expert witnesses must defend them from similar charges. InSears v. Rutishauser, 102 Ill. 2d 402, 407 (1984), our supremecourt observed that "[g]enerally, opposing counsel may probe bias,partisanship or financial interest of an expert witness on cross-examination." Recognizing the importance of potential financialbias, the court went on to hold that counsel may cross-examine anexpert witness as to "the number and frequency of referrals from anattorney." Sears, 102 Ill. 2d at 411. We see no principled way ofdistinguishing Sears from the situation IDOT faces.

IDOT also complains that it has neither the expertise nor theresources to question appraisals made by outside appraisers. Regarding the resources, we note that IDOT likely has betterresources than the average property owner. Further, the claimedlack of expertise does not appear to be an insurmountable problem. For example, a second independent appraisal by an outside appraiserconfirming the first would go a long way toward demonstrating goodfaith. In fact, IDOT argues for the first time before this courtin its petition for rehearing that such a second appraisal wasperformed. Defendants dispute the validity of this appraisal. Wewill not address this argument. Because IDOT did not raise ituntil its petition for rehearing, we deem it waived. OfficialReports Advance Sheet No. 21 (October 17, 2001), R. 341(e)(7), eff.October 1, 2001; Catalano v. Pechous, 69 Ill. App. 3d at 814.

We are cognizant that requiring condemnors to take someresponsibility for policing their own appraisers will increase thecosts to the condemnor for effectuating a condemnation. However,the alternative, requiring property owners to shoulder this burden,is unacceptable. Both the Illinois and United States Constitutionsrequire just compensation when the government takes privateproperty for a public use. U.S. Const., amend. V; Ill. Const.1970, art. I,