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Docket No. 95042-Agenda 25-September 2003.

THE DEPARTMENT OF TRANSPORTATION ex rel. THE PEOPLE
OF THE STATE OF ILLINOIS, Appellant, v. 151
INTERSTATE ROAD CORPORATION et al.,Appellees.

Opinion filed February 5, 2004.-Modified on Denial of Rehearing April15, 2004.
 

JUSTICE RARICK delivered the opinion of the court:

This condemnation action presents a question of law on which ourappellate court is divided: May a condemning authority's good faith innegotiating with a property owner be challenged in an interlocutory appealbrought pursuant to section 7-104(b) of the Eminent Domain Act (735ILCS 5/7-104(b) (West 2000))?

The Fifth District of the appellate court was the first to consider thequestion. It answered in the negative, holding that whether a condemningauthority has negotiated in good faith is not among the issues that can beraised in an interlocutory appeal under the statute. See SouthwesternIllinois Development Authority v. National City Environmental,L.L.C., 304 Ill. App. 3d 542 (1999), aff'd, 199 Ill. 2d 225 (2002).Although our court affirmed the Fifth District's judgment, we did sowithout addressing the question now at issue. The question wassubsequently considered by the Second District of the appellate court inthe case before us today. It rejected the Fifth District's view andconcluded that the issue of good faith can be considered on interlocutoryreview pursuant to section 7-104(b). 333 Ill. App. 3d 821. The ThirdDistrict of the appellate court is in agreement with the Second District'sview. See Department of Transportation ex rel. People v. Hunziker,342 Ill. App. 3d 588 (2003).

We granted the Illinois Department of Transportation (IDOT) leaveto appeal from the Second District's judgment to resolve the conflict. 177Ill. 2d R. 315. We also allowed the Forest Preserve District of Du PageCounty to file a brief as amicus curiae in support of IDOT. 155 Ill. 2d R.345. For the reasons that follow, we now affirm in part, reverse in partand remand to the circuit court.

The pertinent facts are these. In May of 2001, IDOT filed a petitionin the circuit court of Du Page County to acquire, through eminent domain,certain property owned by 151 Interstate Road Corporation (InterstateRoad). The action was brought pursuant to the Eminent Domain Act (735ILCS 5/7-101 et seq. (West 2000)). The subject property was locatedin the City of Addison and was needed by IDOT for a project to improveand repair a public highway known as U.S. Route 20. Five parcels wereinvolved. In two of the parcels, IDOT sought to obtain a fee simpleinterest. In the remaining three, IDOT requested only a temporaryeasement.

IDOT filed a similar eminent domain action against Jane A. Green inher capacity as trustee of two revocable trusts which owned additionalparcels of land near Interstate Road's property.⁽¹⁾ IDOT sought to acquirethe trusts' property for the same highway project involved in the InterstateRoad matter. Jane Green's family controls Interstate Road, and the twoproceedings were consolidated by the circuit court on IDOT's motion.For purposes of this opinion, Interstate Road and Green will be referredto collectively as "the Owners."

The Owners filed a traverse and motion to dismiss in eachproceeding asking the circuit court to dismiss IDOT's petitions and toaward them their costs, expenses and reasonable attorney fees. Asgrounds for their motions, the Owners alleged that IDOT's petitions werefatally defective because they failed to plead compliance with section7-102.1 of the Eminent Domain Act (735 ILCS 5/7-102.1 (West2000)), which requires the state and its agencies to take certain actionbefore initiating eminent domain proceedings in the circuit court. TheOwners further alleged that IDOT's petitions should be dismissed becauseIDOT had not complied with the substantive provisions of section7-102.1 and had not made a bona fide attempt to reach a negotiatedagreement with them with respect to the compensation and damages to bepaid for the subject property.

A two-day hearing on the foregoing motions was held in July of2001. At the conclusion of that hearing, the circuit court denied theOwners' motions to dismiss and scheduled a hearing on a motion byIDOT for immediate vesting of title. See 735 ILCS 5/7-103 (West2000). After hearing evidence and the arguments of counsel regarding thatmotion, the court made a determination pursuant to section 7-104(b) ofthe Eminent Domain Act (735 ILCS 5/7-104(b) (West 2000)) that IDOThad authority to exercise the right of eminent domain, that the propertysought to be taken is subject to the exercise of such right and that suchright was not being improperly exercised in this proceeding. The court'sorder, filed in August of 2001, then granted IDOT's motion for immediatevesting of title and made a preliminary finding regarding the amountconstituting just compensation.

The Owners were dissatisfied with the circuit court's ruling and filedan immediate appeal under Supreme Court Rule 307(a)(7), whichauthorizes interlocutory appeals as of right from orders "determining issuesraised in proceedings to exercise the right of eminent domain under section7-104 of the Code of Civil Procedure [735 ILCS 5/7-104]." 188 Ill. 2dR. 307(a)(7). As grounds for their appeal, the Owners argued that thecircuit court erred in determining that IDOT's right of eminent domain wasnot being improperly exercised in this case. According to the Owners,IDOT exercised its right of eminent domain improperly because it failedto make a good-faith attempt to negotiate with them before filing suit anddid not comply with the prelitigation notice requirements set forth insection 7-102.1(d) of the Eminent Domain Act (735 ILCS 5/7-102.1(d)(West 2000)). As an alternative basis for challenging the circuit court'sorder, the Owners argued that IDOT's petitions were defective becausethey should have alleged that IDOT had complied with section7-102.1(d)'s notice requirements, but did not.

The appellate court rejected the Owners' challenge to the adequacyof IDOT's petitions. It held that neither the terms of the Eminent DomainAct nor the applicable case law requires a condemnor to pleadcompliance with section 7-102.1(d)'s notice requirements. It further heldthat the Owners had suffered no prejudice as a result of the allegeddefects in the pleadings and that to allow them to challenge the sufficiencyof the petitions would violate "the spirit of the waiver rule." 333 Ill. App.3d at 839.

Although the appellate court did not believe IDOT's petitions shouldhave been dismissed on the pleadings, it found the Owners' substantiveclaims to be meritorious. Specifically, it held that the circuit court'sdetermination that IDOT had negotiated in good faith before filing suit wascontrary to the manifest weight of the evidence. It also held that IDOT hadfailed to properly comply with section 7-102.1(d)'s prelitigation noticerequirements. Accordingly, it reversed the circuit court's order denying theOwners' traverse and motion to dismiss. It also remanded with directionsto vacate the subsequent orders fixing preliminary just compensation andvesting title in IDOT and to address the Owners' claim for an award oftheir attorney fees and costs.

IDOT petitioned for rehearing. The appellate court denied thatpetition in a lengthy supplemental opinion, which reaffirmed the court'sconstruction and application of the relevant statutory provisions. Thisappeal by IDOT followed.

As grounds for its appeal, IDOT contends that the issue of whetherit had negotiated with the Owners in good faith was a matter that theOwners should not have been permitted to raise in an interlocutory appeal.Whether a condemning authority's good faith in negotiating with aproperty owner may be challenged in an interlocutory appeal is a questionover which our appellate court is divided. The appellate court in the casebefore us held that a condemning authority's good faith may be challengedin an interlocutory appeal. Its view is shared by the Third District. SeeDepartment of Transportation ex rel. People v. Hunziker, 342 Ill.App. 3d 588 (2003). The Fifth District has taken a contrary view. SeeSouthwestern Illinois Development Authority v. National CityEnvironmental, L.L.C., 304 Ill. App. 3d 542 (1999), aff'd, 199 Ill. 2d225 (2002). Because this question is jurisdictional in nature, we shallconsider it first.

Article VI, section 6, of the 1970 Illinois Constitution (Ill. Const.1970, art. VI,