                              No. 2--05--0392               filed 5/18/06
______________________________________________________________________
________

                                               IN THE

                               APPELLATE COURT OF ILLINOIS

                           SECOND DISTRICT
______________________________________________________________________
________

THE PEOPLE ex rel. THE DEPARTMENT ) Appeal from the Circuit Court
OF TRANSPORTATION,                       ) of Du Page County.
                                         )
       Plaintiff-Appellant,              )
                                         )
v.                                       ) No. 02--ED--26
                                         )
FIRSTAR ILLINOIS, as Trustee             )
under a Trust Agreement dated the 1st    )
of April 1975, and known as Trust        )
Number 410, formerly known as York State )
Bank and Trust Company, and              )
LOUIS A. GOEBEL,                         ) Honorable
                                         ) Terence M. Sheen,
       Defendants-Appellees.             ) Judge, Presiding.
_________________________________________________________________________
_____

        PRESIDING JUSTICE GROMETER delivered the opinion of the court:

        This appeal concerns proceedings had on a previous remand in this condemnation case. In

the initial appeal to this court, the owners of the property (Goebel) claimed that the trial court erred

when it (1) admitted into evidence a map that the Illinois Department of Transportation (IDOT)

introduced; and (2) allowed IDOT's sole expert to give valuation testimony based on that map. See

People ex rel. Department of Transportation v. Firstar Illinois, No. 2--03--0987 (2004) (unpublished

order under Supreme Court Rule 23) (IDOT I). We agreed with Goebel, and, thus, we vacated the

judgment and remanded the cause for further proceedings. On remand, Goebel stipulated to the
No. 2--05--0392


value of the property taken and the damage to the remainder at the lowest amount to which Goebel's

experts had testified, and, subsequently, Goebel moved for summary judgment (see 735 ILCS 5/2--

1005(c) (West 2002)). IDOT advised the trial court that its expert had died, and it sought to name a

new expert to testify at a new trial. The trial court granted summary judgment, and IDOT timely

appeals. The issues raised on appeal are (1) whether, on remand, the trial court violated this court's

mandate when it refused to reopen discovery and allow IDOT to proceed to a new trial with a new

expert; (2) alternatively, whether the trial court abused its discretion in doing so; and (3) whether

summary judgment was properly granted. For the reasons that follow, we affirm.

       In 2002, IDOT initiated condemnation proceedings against Goebel for land located in

Lombard, Illinois. Goebel counterclaimed for damage to the remainder of the property as a result of

the taking, the trial court granted IDOT's motion for immediate vestment of title, and the trial court

set preliminary just compensation at $139,909. Subsequently, a jury trial was set to determine the

fair market value of the property taken and the damage to the remainder.

       Before trial, Goebel moved in limine to bar a map (the Eddy map) that IDOT's expert, Fred

Tadrowski, used to estimate the value of the property taken and the damage to the remainder. The

trial court reserved ruling on the motion until trial. At trial, Goebel timely objected to the admission

of the Eddy map and Tadrowski's testimony. The trial court denied the motion, and the jury

subsequently awarded Goebel $96,000, which was greater than the amount to which Tadrowski

testified but far less than those to which Goebel's two experts attested. Goebel appealed to this

court, contending, among other things, that the trial court erred when it admitted the Eddy map and

Tadrowski's testimony.      This court agreed, concluding that the Eddy map lacked a proper

foundation, and, thus, that the map and Tadrowski's valuation testimony based on that map were




                                                  -2-
No. 2--05--0392


unreliable. Our mandate indicated that "in accordance with the views expressed in [our] ***

Decision[,] the judgment of the trial court is Vacated and Remanded."

         On remand, Goebel stipulated to just compensation of $235,000, which was the lowest value

that Goebel's experts gave for the property taken and the damage to the remainder. Goebel then

moved for summary judgment, contending that, because Tadrowski's valuation testimony could not

be considered, no issue of material fact remained. IDOT informed the trial court that Tadrowski had

died since the jury trial, and it sought to introduce a new expert to give appraisal testimony at a new

trial.

         The trial court granted Goebel's motion for summary judgment. In so doing, the trial court

first found that this court's mandate did not direct it to reopen discovery and proceed with an actual

trial. Rather, the trial court determined that this court reversed the judgment and remanded the cause

based on the grounds for Tadrowski's testimony, not the disclosure of Tadrowski's opinions.

Because this court did not require the trial court to proceed in any particular manner, the trial court

concluded that it had discretion as to whether to allow further discovery, and it refused to exercise

that discretion to reopen discovery, for three reasons.

         First, it believed that this court would have awarded Goebel just compensation but for the

fact that, at trial, Goebel's two experts, whose testimony comprised the only competent valuation

evidence, presented a wide range of values for the property taken and the damage to the remainder.

Second, it concluded that Goebel would be prejudiced if the trial court reopened discovery, because

IDOT easily could have disclosed and presented more than one expert at the first trial. Third, the

trial court determined that reopening discovery would prejudice Goebel because, given the extended

history of the case, Goebel would have to wait too long to receive just compensation. Because our

mandate did not dictate how the trial court should proceed and the trial court refused to reopen

                                                 -3-
No. 2--05--0392


discovery, the court found that summary judgment was proper, because once Goebel stipulated to

the lowest competent value of the property taken and the damage to the remainder, no issue as to just

compensation remained. This appeal followed.

       The first issue we address is whether the trial court violated this court's mandate, which is a

question of law that we review de novo. Clemons v. Mechanical Devices Co., 202 Ill. 2d 344, 351-

52 (2002). The basic rules on how a trial court should proceed when a cause is remanded are well

settled. Clemons, 202 Ill. 2d at 352. After a judgment is reversed and the cause is remanded, the

trial court can conduct only such further proceedings as conform to the appellate court's judgment.

Roggenbuck v. Breuhaus, 330 Ill. 294, 297 (1928). For example, when the appellate court gives

specific directions on how the cause should proceed, the trial court can do nothing except carry out

those explicit instructions. Roggenbuck, 330 Ill. at 297. However, if the appellate court's decision

fails to give specific instructions, the trial court's judgment is entirely abrogated and the cause, on

remand, stands as if no trial had taken place. Kinney v. Lindgren, 373 Ill. 415, 420 (1940). At that

point, the trial court has the same control over the record that it had before entering its judgment,

and, as such, it may allow the introduction of further evidence as long as such a step is not

inconsistent with the appellate court's decision. Kinney, 373 Ill. at 420. Of course, when specific

directions are not given, "it is then the duty of the court to which the cause is remanded to examine

the reviewing court's opinion and to proceed in conformity with the views expressed in it."

Clemons, 202 Ill. 2d at 353.

       In this court's mandate, we reversed the judgment and remanded the cause. Our mandate did

not provide the trial court with specific instructions on how the cause should proceed. As such, the

trial court had to examine our decision and could proceed in any manner not inconsistent with it.

IDOT observes that our decision stated that we were remanding "for a new trial." IDOT I, slip order

                                                 -4-
No. 2--05--0392


at 5. However, contrary to IDOT's suggestion, that direction did not require the trial court to

conduct an actual trial. When a new trial is ordered, that includes all phases of a trial, including all

pretrial matters. Jones v. Petrolane-Cirgas, Inc., 186 Ill. App. 3d 1030, 1033 (1989). Accordingly,

if, on remand for a new trial, the trial court finds that no issue of material fact exists, the trial court

may enter summary judgment. Jones, 186 Ill. App. 3d at 1033. Thus, we determine that we did not

explicitly require the trial court to reopen discovery and allow IDOT to proceed to a new trial with a

new expert.

        That said, we acknowledge that in some cases the trial court is required to permit the

introduction of additional evidence even when the reviewing court has not explicitly so ordered. See

Clemons, 202 Ill. 2d at 353.

        "When a judgment is reversed and the cause remanded with directions to proceed in

        conformity to the opinion then filed, and it appears from the opinion that the grounds of

        reversal are of a character to be obviated by subsequent amendment of the pleadings or the

        introduction of additional evidence, it is the duty of the trial court to permit the cause to be

        re-docketed and then to permit amendments to be made and evidence to be introduced on the

        hearing just as if the cause was then being heard for the first time." Roggenbuck, 330 Ill. at

        298.

Here, IDOT sets out this rule, emphasizing the portion stating that the trial court has a duty to permit

evidence to be introduced. However, until oral argument, IDOT did not address the condition that

must be satisfied to invoke that duty, i.e., that "the grounds of reversal are of a character to be

obviated by *** the introduction of additional evidence." Roggenbuck, 330 Ill. at 298; see Clemons,

202 Ill. 2d at 353-54 (stating the rule, but emphasizing the condition that must be satisfied). Because

IDOT failed to timely provide an argument as to why the rule applies, it has waived its reliance on

                                                   -5-
No. 2--05--0392


the rule. See Official Reports Advance Sheet No. 21 (October 17, 2001), R. 341(e)(7), eff. October

1, 2001.

       Although that waiver relieves us of any need to resolve the issue definitively, we note that we

have grave doubts about the applicability of Roggenbuck. 1 At oral argument, IDOT acknowledged

that the grounds of reversal in IDOT I were that the Eddy map and Tadrowski's testimony lacked

foundation. Further, IDOT conceded that it would be virtually unable to introduce additional


       1
           At oral argument, Goebel asserted that Roggenbuck itself is of dubious viability in light of

the subsequent enactment of Supreme Court Rule 213 (Official Reports Advance Sheet No. 8 (April

17, 2002), R. 213, eff. July 1, 2002). Although the supreme court recently validated Roggenbuck in

a general sense (Clemons, 202 Ill. 2d at 354), we nevertheless see some merit in Goebel's assertion.

In any event, we may save that assertion for another day.




                                                  -6-
No. 2--05--0392


evidence to provide such foundation. Thus, it seems to us that IDOT essentially concedes that the

grounds of reversal could not be obviated by the introduction of additional evidence, and thus the

trial court had no duty to permit such evidence.

       At oral argument, IDOT asserted that it could obviate the grounds of reversal in IDOT I by

presenting a wholly new expert who would have relied on a wholly new map and would provide

wholly new valuation testimony. Although again we decline to say so definitively, we tend to think

that Roggenbuck does not function that way. In Clemons, for example, the grounds of reversal in

the first appeal were "the incorrect admission of evidence and corresponding jury instruction

regarding the [Illinois Wage Payment and Collection Act (Wage Act) (820 ILCS 115/1 et seq. (West

1994))]." Clemons, 202 Ill. 2d at 354. On remand, the trial court denied the plaintiff's motion to

amend his complaint to add a claim under the Wage Act, and the plaintiff appealed. The supreme

court noted that, had the plaintiff originally alleged a violation of the Wage Act, the evidence and the

instruction would not have been erroneous. Thus, under Roggenbuck, the trial court had the duty to

allow the plaintiff to amend his complaint to add a claim under the Wage Act, and it retained

discretion as to any other matters on remand. Clemons, 202 Ill. 2d at 354-55.

       Here, again, the grounds of reversal in IDOT I were the erroneous admission of the Eddy

map and Tadrowski's testimony. Had IDOT introduced evidence to establish foundation, the

admission of the map and the testimony would not have been erroneous; thus, the trial court would

have had the duty to permit the introduction of such evidence. However, IDOT basically concedes

that it has no such evidence. Instead, it seeks to introduce wholly new evidence, independent of the

Eddy map and Tadrowski's testimony. The problem is that even if it had originally introduced such

new evidence, the admission of the Eddy map and Tadrowski's testimony still would have been




                                                  -7-
No. 2--05--0392


erroneous. Thus, the trial court had no duty to permit IDOT to introduce its new evidence. Rather,

such permission was within the court's discretion.

       We thus consider whether the trial court abused its discretion in refusing to reopen discovery

and allow IDOT to name a new expert. See Clemons, 202 Ill. 2d at 352. The trial court has power

over the conduct of discovery, and its decision will not be disturbed on appeal absent an abuse of

discretion. Ragan v. Columbia Mutual Insurance Co., 183 Ill. 2d 342, 352 (1998).

       Here, after reviewing the grounds for the trial court's ruling, we cannot conclude that the trial

court abused its discretion when it refused to reopen discovery. First, the trial court noted that new

expert testimony was unnecessary because Goebel presented two experts who testified about the

property's fair market value. Under these circumstances, we agree that no other valuation testimony

was needed, as the trial court already had competent evidence upon which to draw in fashioning an

appropriate amount of damages. To be sure, the fact that none of the remaining evidence was

IDOT's worked some prejudice to IDOT. However, as a second basis for refusing to reopen

discovery, the trial court determined that reopening discovery would work a prejudice to Goebel,

and we agree. When the suit began, IDOT easily could have named more than one expert, but it

chose not to do so. Thus, IDOT took the chance that, if Tadrowski were discredited, it would be left

with nothing. As it was IDOT that took that risk, the trial court could have reasonably determined

that Goebel should not be made to pay for it. Lastly, the trial court concluded that reopening

discovery would violate Goebel's right to receive just compensation in a relatively expeditious

manner. Again, we agree. As Goebel notes, when a condemnation suit continues for several years,

the right to just compensation is infringed, even when the owner receives interest on the property's

fair market value. See Kirby Forest Industries, Inc. v. United States, 467 U.S. 1, 81 L. Ed. 2d 1, 104

S. Ct. 2187 (1984).

                                                 -8-
No. 2--05--0392


       Because the trial court did not abuse its discretion when it refused to reopen discovery and

allow IDOT to present new expert testimony, the next issue we address is whether summary

judgment was proper. Summary judgment is appropriate where "the pleadings, depositions, and

admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment as a matter of law." 735 ILCS 5/2--

1005(c) (West 2002). A triable issue precluding summary judgment exists where material facts are

disputed or where the material facts are undisputed but reasonable people might draw different

inferences from the undisputed facts. Adams v. Northern Illinois Gas Co., 211 Ill. 2d 32, 43 (2004).

We review de novo the entry of summary judgment. Outboard Marine Corp. v. Liberty Mutual

Insurance Co., 154 Ill. 2d 90, 102 (1992).

       Here, after this court deemed Tadrowski's testimony incompetent, the only competent

valuation evidence presented was that of Goebel's two experts. When only one party presents

competent evidence on a property's value, a trial court may enter judgment for just compensation at

an amount within the range offered by the party submitting competent evidence. See generally

Southwestern Illinois Development Authority v. Al-Muhajirum, 348 Ill. App. 3d 398 (2004). On

remand, Goebel stipulated to just compensation at the lowest value to which their experts testified.

As the trial court noted, but for that stipulation, Goebel would have insisted that just compensation

was the highest amount assigned by their experts, and, in contrast, IDOT would have argued that just

compensation was the lowest such value. Thus, once the trial court refused to reopen discovery and

Goebel stipulated to the value on which IDOT would have insisted, no issue as to just compensation

remained, and summary judgment was proper.

       For these reasons, the judgment of the circuit court of Du Page County is affirmed.

       Affirmed.

                                                 -9-
No. 2--05--0392


       CALLUM, J., concurs.

       JUSTICE O'MALLEY, dissenting:

       Unfortunately, this case, which we are reviewing for the second time on appeal,

seems to have been rightly decided by the trial court in the first place. As the trial court

originally aptly noted, the problems with the Eddy map cast doubt on the credibility of the

map and were proper topics for cross-examination but did not affect the admissibility of the

map. However, without even a mention of that point or of the highly deferential abuse of

discretion standard of review that should be applied to the trial court's decision to deny the

motion in limine, this court vacated the trial court's decision and remanded the cause for a

new trial. We are now bound by that decision and cannot revisit it. Bailey v. Robison, 244

Ill. 16, 22 (1910) ("although the [appellate] court was of opinion [the issue] had been

decided wrong[ly] on the first appeal, it was bound to follow its first opinion").

       The majority here states that, under its reading of Roggenbuck, the trial court on

remand would have been without discretion to deny the admission of evidence that would

have cured the supposed lack of foundation for the Eddy map and Tadrowski's testimony.

However, the majority concludes that the trial court nonetheless was not duty-bound to

allow IDOT's evidence, because IDOT sought to introduce wholly new evidence,

independent of the Eddy map and Tadrowski's testimony. Slip op. at 6. I disagree with the

majority, and, to the extent IDOT concedes this point (slip op. at 6), I disagree with its

concession. 2 As the majority sees it, IDOT improperly sought to replace the Eddy map



       2
           I say I disagree with IDOT's concession because I think the problems with the Eddy

map might very easily be cured with additional evidence. For example, one of the problems


                                             -10-
No. 2--05--0392


rather than remedy or cure the problem of the lack of foundation for the Eddy map and the

expert testimony based on the Eddy map. In other words, the majority sees the problem as

the Eddy map, and replacing the Eddy map does not cure the Eddy map. To me the

problem is a lack of foundation for the expert opinion, and that can be cured by coming up

with a whole new map that does not suffer from the problems identified with the Eddy map. 3

Indeed, it appears that the majority creates an insurmountable problem by framing the

issue as it does. Suppose an appellate court remanded a case because it felt that certain

photographs admitted into evidence were too blurry or unclear to give an accurate depiction

of a particular subject matter. In such a situation, the majority would not allow the parties to

admit different, clearer photographs of the exact same subject matter because the different

photographs would not cure the original photographs. The majority would hold that on

remand, the trial court would have to allow into evidence the same photographs if they

could be made clearer but not allow different photographs that portrayed clear images.


this court identified was that the person who made the field notes used to create the map

did not testify, thus creating a hearsay problem. That problem could be easily cured by

calling that person as a witness. Thus, even if I agreed with the majority's definition of the

problem, which, as discussed just below, I do not, I would disagree with its conclusion that

the parties are incapable of curing that problem on remand.

        3
            To be sure, that is how IDOT sees the issue. I doubt IDOT ever considered trying

to cure the Eddy map itself until it was asked at oral argument whether it was possible to

cure the map. Hence, the oral argument concession to which the majority refers. Slip op.

at 6.


                                             -11-
No. 2--05--0392


       Contrary to the majority's approach, I see the problem identified on appeal as being

that the Eddy map was ruled inadmissible and thus IDOT had no foundation for its expert

testimony. This problem could be cured by IDOT's introducing new foundation, such as a

new map for an expert's testimony, by IDOT's introducing further foundation to establish the

admissibility of the Eddy map, or by IDOT's introducing new expert testimony with proper

foundation. Therefore, I believe we must address Roggenbuck. 4


       4
           I disagree with the majority's statement that IDOT has waived its reliance on

Roggenbuck. Slip op. at 5-6. Though IDOT does not use the specific phrase the majority

quotes from Roggenbuck (slip op. at 5-6), it argues for several pages in its briefs that

Roggenbuck applies and that the trial court was bound to hear evidence on the value of the

property because that was the only issue remaining on remand.




                                           -12-
No. 2--05--0392


       In Roggenbuck, the appellate court reversed a trial court ruling in favor of the

defendants in a breach of contract claim. Roggenbuck, 330 Ill. at 295-96. However, it held

that it was "unable to fix the damages and enter judgment in the Appellate Court" because

"it was impossible to determine the amount of the damages from the evidence in the

record." Roggenbuck, 330 Ill. at 296. Therefore, the appellate court remanded the cause

for further proceedings not inconsistent with the views set forth in the opinion.

Roggenbuck, 330 Ill. at 296. On remand, the trial court heard new evidence concerning the

damages suffered by the plaintiff. Roggenbuck, 330 Ill. at 297. On subsequent appeal, the

supreme court ruled that, by virtue of the appellate court opinion, the trial court was duty-

bound to consider the plaintiff's new evidence of damages. Roggenbuck, 330 Ill. at 297-

300. The supreme court first noted that, when no specific directions are given on remand,

"it must be determined from the nature of the case what further proceedings will be proper

and not inconsistent with the [appellate court] opinion." Roggenbuck, 330 Ill. at 297-98. It

then examined the full context of the appellate court opinion to determine what it directed

the trial court to do on remand:

       "The court expressly determined that it was impossible to enter judgment [on

       appeal] because the amount of the damages was not sufficiently shown by the

       evidence. How, then, could the [trial] court enter a judgment on its record containing

       only the same evidence? It could not do so and did not try to do so but recognized

       that the introduction of evidence was necessary to enable it to render judgment [as

       instructed]." Roggenbuck, 330 Ill. at 299.

In Roggenbuck, the appellate court reversed the cause and directed the trial court to

conduct further proceedings in order to remedy the problem that caused reversal. The only


                                            -13-
No. 2--05--0392


way for the trial court to comply with that order was to allow new evidence of damages.

Thus, the appellate court impliedly directed the trial court to allow new evidence, or, put

another way, "it appear[ed] from the opinion that the grounds of reversal [were] of a

character to be obviated by *** the introduction of additional evidence." Roggenbuck, 330

Ill. at 298.

       As the majority notes (slip op. at 5), Roggenbuck holds that: "[w]hen a judgment is

reversed and the cause remanded with directions to proceed in conformity to the opinion

then filed, and it appears from the opinion that the grounds of reversal are of a character to

be obviated by *** the introduction of additional evidence, it is the duty of the trial court *** to

permit amendments to be made and evidence to be introduced on the hearing just as if the

cause was then being heard for the first time." Roggenbuck, 330 Ill. at 298. However, the

majority interprets this rule as requiring the trial court to allow new evidence when it appears

from the opinion that the grounds of reversal are of a character "that could be obviated" by

new evidence, as opposed to the grounds for reversal being of a character "to be obviated"

by new evidence. The difference is crucial. Under the majority's interpretation, a trial court

must allow a litigant on remand to introduce any evidence that might cure a problem

identified on appeal. Under my interpretation, a trial court must allow new evidence only

when it appears that the court of review impliedly directed that the trial court hear the new

evidence in order to remedy the problem, or, put another way, the problem is "to be

obviated" by new evidence.

       If I were to follow the holding of Roggenbuck as I see it, I would hold that this court's

original order vacated the original judgment because it found the Eddy map and Tadrowski's

testimony improperly admitted. It ordered further proceedings, but it did not explicitly direct


                                               -14-
No. 2--05--0392


the trial court to admit new evidence to cure the problem that caused reversal. Further, the

introduction of new evidence is not required, as it was in Roggenbuck, to comply with the

directives of this court's previous opinion; while the trial court in Roggenbuck had no way of

determining damages as ordered without considering new evidence, the trial court here

could conduct a new trial without considering IDOT's additional evidence. Therefore I do not

believe that the previous opinion of this court impliedly directed new evidence to be

considered on remand. In my view, then, the Roggenbuck rule does not apply, and the trial

court had discretion as to whether to allow IDOT to present new evidence.

       However, as the majority notes, our supreme court revisited the Roggenbuck rule in

Clemons, 202 Ill. 2d at 354 (Clemons II). In Clemons, the plaintiff presented evidence and

argument supporting, and the trial court tendered jury instructions regarding, a Wage Act

claim, despite the fact that the plaintiff did not include a Wage Act claim in his complaint.

Clemons v. Mechanical Devices Co., 184 Ill. 2d 328, 333-34 (1998) (Clemons I). The jury

found in favor of the plaintiff, and the defendant appealed. Clemons I, 184 Ill. 2d at 334.

The defendant's appeal reached the supreme court, which reversed and remanded for a

new trial. Clemons I, 184 Ill. 2d at 338. The supreme court observed that the plaintiff's

amended complaint, which was filed after the close of evidence, did not refer in any way to

the Wage Act. Clemons I, 184 Ill. 2d at 335. It noted that "the alleged violation of the Wage

Act was not relevant to [the] plaintiff's cause of action, which was based on an entirely

different theory." Clemons I, 184 Ill. 2d at 337. The supreme court concluded that the

"plaintiff could not attempt to put forth what was in essence a new and separate cause of

action" (Clemons I, 184 Ill. 2d at 337-38), and it held as follows:




                                            -15-
No. 2--05--0392


              "For these reasons, we believe that the trial court erred in allowing [the]

       plaintiff to submit evidence of [the] defendant's alleged violation of the Wage Act and

       instructing the jury on that matter. Moreover, the introduction of this evidence and

       the use of the instructions were clearly prejudicial to [the] defendant, and we agree

       with the appellate court that a new trial is necessary in this case."

       On remand, the plaintiff filed a motion to amend his complaint to add a count under

the Wage Act, the trial court denied that motion, the plaintiff appealed, and the case again

reached the supreme court. Clemons II, 202 Ill. 2d at 348. The supreme court cited the rule

from Roggenbuck and held that "it was the duty of the trial court to allow [the] plaintiff to

amend his complaint to add a count under the Wage Act." Clemons II, 202 Ill. 2d at 354.

The majority reasoned that "the grounds for reversal in Clemons I were the incorrect

admission of evidence and corresponding jury instruction regarding the Wage Act."

Clemons II, 202 Ill. 2d at 354. It noted that those grounds "only constituted prejudicial error

because plaintiff did not allege a violation of the Wage Act" (emphasis in original) and thus

that the " 'grounds of reversal are of a character to be obviated by subsequent amendment

of the pleadings.' " Clemons II, 202 Ill. 2d at 354, quoting Roggenbuck, 330 Ill. at 298.

       Describing what the majority had done, the dissent in Clemons II said that the

majority found that Clemons I required the trial court to allow an amendment despite the fact

that Clemons I did not "order or even suggest that [the plaintiff] be allowed to amend his

complaint." Clemons II, 202 Ill. 2d at 360 (Thomas, J., dissenting, joined by Fitzgerald and

Garman, JJ.).     The Clemons II majority responded to the dissent's observation by

acknowledging that Clemons I did not explicitly require that the trial court allow amendment

but did not respond to the dissent's observation that the Clemons I court did not even


                                            -16-
No. 2--05--0392


suggest allowing amendment. Clemons II, 202 Ill. 2d at 353-55. The majority in Clemons II

seemed to interpret the rule from Roggenbuck in the same way the majority here reads it.

See Clemons II, 202 Ill. 2d at 354 ("[h]ad plaintiff alleged a Wage Act violation, the

admission of evidence regarding the Wage Act[,which formed the basis of reversal on

appeal,] *** would not have been erroneous"). In fact, the majority in Clemons II even

acknowledged the expansiveness of the rule it applied by noting that, under its rule, where a

reviewing court orders a new trial without limitation or further specific direction, a party's

ability to amend its pleadings or offer new evidence to correct any problems identified on

appeal is unfettered so long as the statute of limitations for a new complaint has not expired.

See Clemons II, 202 Ill. 2d at 355 (rejecting argument that its holding would lead to an

unfair, open-ended exposure to liability, because a new cause of action filed after the

expiration of a limitations period must meet the requirements for relating back to the time of

the original complaint).

       My personal view is that, when a mistake is identified on appeal and the cause

remanded, the proceedings in the trial court are rewound to the point when the mistake was

made, and the cause moves forward again under the new instructions from the court of

review. Consistent with what would be my interpretation of Roggenbuck, the trial court must

abide any direction, explicit or implicit, from the reviewing court as to how further to conduct

those proceedings, but, aside from such direction, the trial court retains discretion over

evidentiary and pleading matters to the same extent as when the cause was originally

before it. If Clemons II had not dictated otherwise, I would hold that a party does not enjoy

unfettered ability to remedy errors identified on appeal except to the extent the reviewing

court so ordered in remanding the cause.


                                             -17-
No. 2--05--0392


       Applying my interpretation of Roggenbuck, the trial court here received no direction

regarding new evidence from this court's previous ruling and was therefore left to its

discretion to grant or deny IDOT's request to present new evidence.                   Under this

interpretation, I would agree with the majority, albeit for different reasons, that the trial court

did not abuse its discretion in refusing to reopen discovery and allow IDOT to name a new

expert. The majority relies on the fact that "new expert testimony was unnecessary because

Goebel presented two experts" (slip op. at 7-8) and thus "the trial court already had

competent evidence" (slip op. at 8). I disagree with this approach. It is true that the trial

court had competent evidence upon which to base its damages finding, but that evidence

was solely in the form of Goebel's witnesses. "Competent" evidence does not displace our

adversarial system, which holds as one of its most basic tenets that both sides of a dispute

are allowed to present evidence to support their positions. While there are valid reasons for

the trial court to have excluded IDOT's proposed evidence, the fact that Goebel presented

competent evidence on the same subject is not one of those valid reasons. The majority

seems to acknowledge as much in its monumental understatement that "the fact that none

of the remaining evidence was IDOT's worked some prejudice to IDOT." Slip op. at 8. I

agree with the other two bases the majority offers to support its holding that the trial court

did not abuse its discretion in refusing to reopen discovery.

       All of that said, however, my personal view is not what binds this court, and, pursuant

to Clemons II, it is not the law. Under the majority decision in Clemons II, the rule from

Roggenbuck has been expanded so that a trial court is duty-bound to consider new

evidence when such evidence would remedy the cause for reversal, regardless of whether

the reviewing court suggested that such evidence was to be considered. Therefore, I would


                                              -18-
No. 2--05--0392


reverse and remand the cause with instructions that the trial court allow IDOT to present any

evidence, including additional expert testimony and additional foundation for that testimony,

that might cure the problem that caused vacation in the first place.

       In closing, I note that, under both the majority's and my interpretation of Roggenbuck,

and under the supreme court's decision in Clemons II, the rule discussed herein is triggered

only if the appellate court provides insufficiently specific direction to the trial court on

remand. Therefore, in order to avoid problems such as those we see here, we would be

well-advised to give more specific direction to the trial court in future cases in which remand

is required.




                                            -19-
