Find Legal Information

23 May 2000

IN THE

JUSTICE HOLDRIDGE delivered the Opinion of the Court:

This appeal involves a claim for eminent domain filed by the Illinois Department ofTransportation (IDOT) against James and Jeri Bolis in order to acquire title to 1.036 acres oftheir property. IDOT sought to acquire title to the land as well as a temporary easement on anadditional .122 acres. The land was needed by the state for a road improvement project. Aftertrial, the jury awarded the Bolis $41,468; $5,768.45 for the taken property, $33,000 for damagesto the remaining property, and $2,700 compensation for the temporary easement. IDOT appeals.

Plaintiff-Appellant, Illinois Department of Transportation (IDOT), filed a Complaint forCondemnation and a Motion for Immediate Vesting of Title seeking title to 1.036 acres owned byJames and Jeri Bolis (Bolis). The Bolis own a 58.6 acre farm which includes an 18.747 acre appleorchard. Of the acreage sought by IDOT, 0.728 of the area is existing public right-of-way road. The state sought the land for IDOT's Illinois Highway 192 improvement project. Improvementplans include widening the highway, expanding the shoulders, resurfacing, drainageimprovements, and the addition of turn lanes. The project required the state to take a twelve toseventeen foot strip of ground along the front of the Bolis' property. Once complete, the projectwould move the existing right-of-way, which is currently thirty-seven feet from the apple shed, totwenty feet in front of the Bolis' 684 square foot apple shed. The Bolis' property is zonedagricultural and also includes a machine shed, two grain bins, a barn, and a garage. The appleorchard contains 1000 apple trees. IDOT also requires a temporary easement on the Bolis' landfor the duration of the project. A jury trial to determine the amount of compensation owed to theBolis began on December 2, 1998.

IDOT's appraisal witness, Robert Hutchinson, a licensed real estate broker and appraiser,testified regarding the value of the property in terms of the whole property and the portion thatthe state would take as well as the damages to the remaining property. Hutchinson testified thatthe Bolis' property had a fair market value of $328,160, or $5,600 per acre. Hutchinson alsotestified that the value of the taken 1.036 acre is $2,800, based on the fact that of the total 1.036acres taken, .72 acres was located in the existing right-of-way. IDOT would take an additional.308 acres of land on one side of the existing right-of-way. To complete the project, the statemust also temporarily construct an easement of 0.122 of an acre to reconstruct entrances to theproperty. Hutchinson valued the temporary easement at $265. Hutchinson also testified that theproject would damage the remaining property in the amount of $8,758. Hutchinson appraised the57.564 acres remaining after the project at $316,602. The proposed total compensation to theBolis for the road improvement project was $11,823.

Hutchinson's damage evaluation was based, in part, on the following factors: 1) the loss ofparking area in the semi-circular drive in front of the apple shed; 2) the loss of eleven apple trees;3) the loss of one elm tree, two poplar trees, and a fence on the west side of the property; 3) thecost of moving a utility pole, security light, and electrical service; and, 4) the cost of moving threeapple signs and a portable center sign located within the semi-circular drive. Hutchinson alsonoted that the points of access to the property would remain the same and that the front porch ofthe apple shed would remain as a functional loading dock. The Bolis dispute that point and assertthat the porch could no longer be used as a loading dock. The Bolis moved to strike Hutchinson'sappraisal testimony, arguing that his opinions were based on a new appraisal which was preparedshortly before the trial and not tendered to Bolis counsel until trial. The trial court denied themotion and ruled that it would allow Bolis' counsel latitude to discuss the significance of the unitrule on cross-examination.

Jacqueline Goodman, a licensed real estate broker and appraiser, offered appraisaltestimony for the Bolis. Goodman valued the property as a whole at $324,400, or $5,536 peracre. She determined the value of the taking, with its' existing land improvements, to be$6,379.30, and concluded that the project damaged the remaining property by an additional$61,337.16, leaving the property worth $256,648.84 after the project. Goodman's evaluation wasbased on the loss of two rows of apple trees, the cost of building a new loading dock, parking lotand fence, relocating signs and a light pole, and removing trees. Goodman testified that, based onthe access it provided to the land, the easement was worth $6,300.

After trial, a jury awarded Bolis $41,468; $5,768.45 for the taken property, $33,000 fordamages to the remaining property, and $2,700 for the easement. IDOT filed a motion for a newtrial, which was denied by the court. IDOT now appeals the trial court's decision.

IDOT first argues that the trial court erred when it allowed expert witness land appraiser,Goodman, to opine as to the damages to the remainder based on a dollar-for-dollar reduction inproperty value equal to the cost-to-cure bids. IDOT asserts that the damages to the remaindershould only have been considered in terms of its' diminishment of whole fair market value, not thecost-to-cure expenses as individual items. IDOT contends that "the unit rule" requires that thevalue of the property must be considered as a whole. When Goodman testified at trial, IDOTobjected to her use of the cost-to-cure method to calculate the value of the remainder of theproperty, contending that while an appraiser may consider the cost-to-cure, she must determinethe value before and after the taking and may not present evidence to the jury on the cost to cure. See Department of Transportation v. Quincy Coach House, Inc., 64 Ill. 2d 350, 356 (1976); Cityof Freeport v. Fullerton Lumber Co., 98 Ill. App. 3d 218 (1981). Moreover, IDOT contends,while a testifying witness may consider the costs of rehabilitation, the witness may not offerspecific figures for the costs. IDOT argues that Goodman's testimony includes specific dollar-for-dollar costs of rehabilitation as the exact measurement of damages and the diminishment of thefair market value of the property.

The Bolis, conversely, argue that cost-to-cure evidence is admissible as the basis of anexpert witness' opinion regarding the diminution of the value of the remainder. See Departmentof Public Works & Buildings v. Bloomer, 28 Ill. 2d 267 (1963). The Bolis contend that theinformation assists the jury to understand the expert's analysis and that the jury can then make amore accurate assessment as to the damage to the remainder. The Bolis further assert thatwithout such expert witness testimony, the jury would have no basis for the expert's opinionswhich could lead to speculative awarding of damages. Additionally, the Bolis point out that thestate's own manual regarding appraisal requirements provides for consideration of cost-to-cureitems including estimates of costs provided by companies or persons involved in the relatedbusiness (bids).

The standard of review applicable to eminent domain proceedings is whether the trialcourt abused its discretion, acted arbitrarily, exceeded the bound of reason, and ignored theapplicable law. Forest Preserve Dist. Of Will County. v. Marquette, 208 Ill. App. 3d 823, 826(1991). The only question for a jury to determine in an eminent domain proceeding is the justcompensation to be paid to the owner of the property sought to be condemned. Department ofTransportation v. White, 264 Ill. App. 3d 145, 149 (1994). Where an award is made by a jury inan eminent domain proceeding in which the evidence is conflicting and the jury views the propertyand fixes the amount of compensation within the range of evidence, the jury's verdict will not bedisturbed unless there has been a clear and palpable mistake or a showing that the verdict was theresult of passion or prejudice. Department of Transportation v. Chicago Title & Trust Co., 303Ill. App. 3d 484, 499-500 (1999); Illinois State Toll Highway Authority v. Heritage StandardBank & Trust Co., 250 Ill. App. 3d 665, 686 (1993). A condemnation award will be set aside onreview and a new trial directed if the trial court made an erroneous ruling which might havemisled the jury and which amounts to prejudicial error. Illinois State Toll Hwy. Auth. v.American Nat'l., 162 Ill. 2d 181, 195 (1994); Department of Public Works & Buildings v.Oberlaender, 42 Ill. 2d 410, 418 (1969).

The law in Illinois is well established that the improper admission or exclusion of valueevidence in condemnation cases does not constitute reversible error when there are otherwitnesses and evidence as to value on both sides, and the jury had the opportunity to view theproperty and weigh the conflicting evidence. Chicago Title, 303 Ill. App. 3d at 500-501; IllinoisState Toll Highway Authority v. Heritage Standard Bank & Trust Co., 163 Ill. 2d 498 (1994). Inthe present case, the trial court allowed both sides to present evidence as to the value of theremainder, the jury had the opportunity to view the property, and the award is within the range ofevidence. The jury awarded the Bolis $33,000 in damages to the remainder. Goodman's estimateof damage to the remainder was $61,377 while Hutchinson's estimate was $8,758. It seemsunlikely that the jury awarded damages to the remainder based on a dollar-to-dollar cost-to-curebasis since their figure is nearly one-half of Goodman's appraisal. The trial court specificallystruck any reference to specific amounts from the record. The jury was not to consider thesespecific cost-to-cure amounts in awarding damages for the remainder. Therefore, the trial courtdid not abuse its discretion in admitting Goodman's testimony and the jury's verdict should stand. IDOT also argues that because the 1.036 acres of land taken already included .728 acresof public right of way land, the Bolis were already unable to use that portion of the land for anyother purpose. IDOT contends, therefore, that no compensation other than nominal damagesshould be allowed for this property which was already burdened with an easement, specifically inthe nature of a public road. IDOT proffered a jury instruction (no. 15) to this effect based onDepartment of Transportation v. Lawler, 113 Ill. App. 3d 105 (1983), however, the court rejectedthe instruction. IDOT points out that their expert appraisal witness, Hutchinson, valued the areaat $2,800 due to its' restricted use. Hutchinson evaluated the existing public road area to be of"nominal" value but refused to place an exact dollar figure on the roadway. Under cross-examination, Hutchinson would not put a dollar figure on "nominal" even though the Bolis'attorney tried to elicit more exact information. IDOT asserts that the attempt to makeHutchinson come up with a specific dollar figure was improper and likely mislead the jury intothinking of the property as separate parts instead of a whole. The Bolis' expert witness,Goodman, evaluated the area with the existing right of way at full value and made no adjustmentsto reduce the value of the property to compensate for burden of the public road. The juryawarded $5,768.55 for the land, almost the full value suggested by Goodman. IDOT contendsthat the jury improperly failed to make adjustments to the value based on the already existingright-of-way public access road. IDOT argues that the jury should have been instructed, pursuantto Lawler, that only a nominal value should be placed on the existing right-of-way roadway. When the trial court refused to give this instruction, IDOT asserts, it was denied a fair trial on theissue of valuation of the existing right-of-way property.

The Bolis argue that IDOT's proposed jury instruction was argumentative and anoverstatement of the law. Bolis contend that IDOT had the opportunity, and indeed took theopportunity, to argue for the jury its' position on the "nominal value" issue. The Bolis furtherpoint out that this is the only issue IDOT has with the jury instructions given at trial. They arguethat IDOT was not prejudiced by the court's refusal to give the instruction.

The Bolis have provided the correct standard: the determination of proper juryinstructions lies within the sound discretion of the trial court; a reviewing court will not disturbthe determination of the trial court absent a clear abuse of that discretion. Linn v. Damilano, 303Ill. App. 3d 600, 606-07 (1999); Rowe v. State Bank of Lombard, 247 Ill. App. 3d 686, 690(1993). A new trial will be granted based on a trial court's refusal to give a tendered instructiononly when the refusal amounts to a serious prejudice to a party's right to a fair trial. Linn, 303 Ill.App. 3d at 607; Poelker v. Warrensburg-Latham Community Unit School District No. 11, 251 Ill.App. 3d 270, 278 (1993). Proposed jury instruction number 15 read:

"You are to consider land taken which lies in an existing right-of-way as havingnominal value. No compensation other than nominal damages is given to an owneralready burdened with an easement in the nature of a public road."

In Lawler, the court addressed a situation where IDOT refused to make any payment tolandowners for land already encumbered by a right of way access road. The court held that thereshould be payment made for the value of the land encumbered by the easement but acknowledgedthat the common law allowed only nominal damages for this land. The court declined to reversethe "nominal damages" common law rule. Indeed, the court specifically affirmed the "nominaldamages" rule for property with existing right-of-way access roads, and IDOT is correct inasserting that the instruction could have been given. It was an accurate statement of the currentlaw. Therefore, this court should reverse if, as a result of the court failing to provide theinstruction, IDOT suffered prejudice. Here, IDOT could not have suffered prejudice as a result ofthe court refusing the instruction.

IDOT argues that the portion of the property encumbered by the easement is only worth a"nominal" amount. IDOT's witness, Hutchinson, testified that the Bolis' property was worth$5,600 per acre. He evaluated the 1.036 acres that IDOT sought to condemn to be worth $2,800. At $5,600 per acre, the unencumbered property to be taken, .308 acres, would be worth$1,724.20. That leaves $1075.80 of the estimated $2,800 for the remaining .72 acres ofencumbered acreage. When questioned as to what "nominal value" meant, Hutchinson refused tostate a specific dollar figure but said that nominal "mean[t] very little" and "very little value". Black's Law Dictionary defines nominal damages as: "A trifling sum awarded when a legal injuryis suffered but when there is no substantial loss or injury to be compensated." Further, Black'scites Charles T, McCormick's Handbook on the Law of Damages: "Nominal damages aredamages awarded for the infraction of a legal right, where the extent of the loss is not shown, orwhere the right is one not dependent upon loss or damage, as in the case of rights of bodilyimmunity or rights to have one's material property undisturbed by direct invasion." This courtholds that $1,075.80 cannot be said to be of very little value nor is it a trifling sum. Therefore,IDOT's own witness did not evaluate or testify that the .72 acres was of "nominal" value. IDOT,accordingly, could not have been prejudiced by the court refusing to instruct to the jury toevaluate the acreage "nominally." Finally, the judge cannot instruct the jury on an issue for whichno evidence has been provided. See Kemnitz v. Semrad, 206 Ill. App. 3d 668 (1990) (when thereis no evidence to support an issue, a trial court's refusal to instruct on that issue is proper).

For the forgoing reasons, the jury's award of condemnation damages to the Bolis isaffirmed.

Affirmed.

SLATER, P.J., and BRESLIN, J., concurring.