                                  Illinois Official Reports

                                          Appellate Court



               Department of Transportation v. Raphael, 2014 IL App (2d) 130029



Appellate Court              THE DEPARTMENT OF TRANSPORTATION, for and on Behalf of
Caption                      the People of the State of Illinois, Plaintiff-Appellee, v. CONCETTA
                             L. RAPHAEL, Defendant-Appellant (Washington Mutual Bank, F.A.,
                             n/k/a JPMorgan Chase Bank, N.A.; and Unknown Owners and
                             Nonrecord Claimants, Defendants).

District & No.               Second District
                             Docket No. 2-13-0029

Filed                        February 19, 2014
Rehearing denied             June 10, 2014

Held                         In the condemnation of a 10-foot strip of land off a residential parcel
(Note: This syllabus         next to a highway, the trial court properly granted plaintiff’s motion to
constitutes no part of the   bar the testimony of the owner’s appraiser on the ground that he
opinion of the court but     valued the remainder and taken parts the same without any basis, since
has been prepared by the     a single-family residence was on the remainder and the strip taken
Reporter of Decisions        contained a driveway, a turn-around area and some lawn, but the trial
for the convenience of       court erred in denying defendant’s motion to bar the testimony of
the reader.)                 plaintiff’s appraiser, because she did not consider the contributory
                             value of the improvements on the remainder when giving a value to
                             the part taken; therefore, the trial court’s award of total just
                             compensation was vacated and the cause was remanded for further
                             proceedings.



Decision Under               Appeal from the Circuit Court of Du Page County, No. 10-ED-47; the
Review                       Hon. Patrick J. Leston, Judge, presiding.



Judgment                     Affirmed in part and reversed in part; judgment vacated; cause
                             remanded.
     Counsel on               Patrick J. Kelly, of Helm & Wagner, of Naperville, for appellant.
     Appeal
                              Lisa Madigan, Attorney General, of Chicago (Michael A. Scodro,
                              Solicitor General, and Paul Racette, Assistant Attorney General, of
                              counsel), for appellee.




     Panel                    JUSTICE McLAREN delivered the judgment of the court, with
                              opinion.
                              Justices Hutchinson and Spence concurred in the judgment and
                              opinion.




                                               OPINION

¶1        In this condemnation case, defendant, Concetta L. Raphael (the owner), appeals the trial
       court’s order granting the motion in limine of plaintiff, the Illinois Department of
       Transportation (IDOT), to bar the testimony of the owner’s appraiser and denying the owner’s
       motion in limine to bar the testimony of IDOT’s appraiser. The owner also appeals the trial
       court’s order entering judgment of total just compensation in the amount of $18,000 for the
       property at issue. We affirm in part, reverse in part, vacate the judgment of total just
       compensation, and remand for further proceedings.

¶2                                           I. BACKGROUND
¶3          On September 1, 2010, IDOT filed a complaint for condemnation of the subject property
       owned by the owner. On October 12, 2010, IDOT filed a motion for immediate vesting of title
       pursuant to the “quick-take” procedure of section 5-5 of the eminent domain act (735 ILCS
       30/20-5-5 (West 2010)). On December 6, 2010, the trial court entered an agreed order stating
       that the parties agreed to preliminary just compensation of $20,000 ($13,800 for the part taken
       of the subject property and $6,200 for damages to the remainder); IDOT would be vested with
       fee simple title to the part taken of the subject property; and final just compensation would be
       litigated at a later date. On February 17, 2011, IDOT was vested with title to the part taken of
       the subject property. On April 7, the owner filed a counterclaim for damages to the remainder.
¶4          The subject property consisted of a parcel of land located on Route 53, also known as
       Rowling Road, and 132 feet from I-355 in unincorporated Du Page County. The subject
       property was improved with a 3,322-square-foot, 2-story single-family home, built in 2000.
       The home had a full basement, an attached three-car garage, a triple-wide asphalt-paved
       driveway off Rowling Road, and an asphalt-paved turn-around area. The condemnation
       proceeding involved the taking of an approximately 871-square-foot strip that consisted of
       portions of the front lawn, the driveway, and the turn-around area.

                                                  -2-
¶5       Prior to the scheduled jury trial, the owner filed a motion in limine seeking to bar IDOT’s
     appraiser, Sharon Metz-Gohla, from testifying, arguing that she failed to consider the
     contributory value of the improvements located on the remainder when she valued the part
     taken and that she used different comparable sales to value the whole property and the part
     taken. IDOT filed a motion in limine seeking to bar the owner’s appraiser, Kevin Vaught, from
     testifying, arguing that Vaught’s opinions were based on: (1) an improper valuation technique;
     (2) a valuation technique that did not result in a compensation amount that was fair to both the
     State and the owner; and (3) an improper and speculative factor. Attached to the parties’
     motions were their respective appraisers’ depositions and appraisal reports.
¶6       Metz-Gohla’s appraisal report provided a “VALUATION ANALYSIS OF THE
     PROPERTY,” stating:
             “In the valuation analysis, the appraiser has estimated the value of the land as vacant
             and available for development at the Highest and Best Use. This analysis provides a
             basis for estimating the value of any rights to be acquired.”
     Based on five comparable vacant-land sales, Metz-Gohla opined “a value for the land as vacant
     at $12.50 per square foot.” Further, she provided a “VALUATIONS OF THE ANALYSIS OF
     WHOLE PROPERTY.” Metz-Gohla valued the whole property at $420,000, using
     comparable sales of three properties improved with single-family homes. The three properties
     sold for $605,500, $510,000, and $420,000. She stated that “[i]mprovements within the Take
     area include a lawn area, and a portion of an asphalt-paved driveway and a portion of an
     asphalt parking area.” She concluded that, “[u]tilizing the value conclusion indicated by the
     comparable vacant residential land sales 1, 2, 3, 4, and 5, the appraiser has concluded that a
     valuation of the Taking, including the contributory value of the improvements in the Take area
     (871 square feet), at $12,300.” Metz-Gohla then stated that “[t]he highest and best use of the
     property is for the existing single-family style residence to continue.” Further, she opined that
     the damage to the remainder was $5,700 because: (1) the site will be 871 square feet smaller;
     (2) the new street pavement and curb will be closer to the front yard; and (3) the residence,
     driveway, access, and garage will not change. Metz-Gohla concluded that total compensation
     due to the owner was $18,000.
¶7       During Metz-Gohla’s deposition she testified that when she valued the part taken, she did
     not consider the contributory value of the single-family home, because it was “not part of the
     acquisition.”
¶8       Vaught’s appraisal report indicated that he valued the whole property at $475,000, using
     the sales comparison approach. Vaught based that figure on three comparable sales of
     properties improved with single-family homes that sold for $449,000, $502,000, and
     $510,000. The chart attached to Vaught’s appraisal showed that the $510,000 comparable
     property had a similar lot size (13,930 square feet) to the property at issue (13,175), similar
     living area space (3,737 square feet) to the property at issue (3,322), similar age (3 years) to the
     property at issue (10 years at time of condemnation), and similar exposure or view (backed to
     expressway) to the property at issue (132 feet from I-355, and on Route 53). In valuing the part
     taken, Vaught wrote: “The value of the take lies in its contribution to the whole property,
     functioning as an integral part of the whole.” He valued the part taken at $31,000 as follows:
             “In calculating the value of the part taken, the whole property value of $475,000
             divided by the whole land area of 13,175 square feet=36.05 per square foot of land
                                                   -3-
                improved. Applying the unit value to the part taken is calculated as 871 square feet x
                $36.05=$31,402, rounded to $31,000.”
       Vaught then considered the value of the remainder. He opined that the “road-widening project
       will have a significant impact on the subject property’s remainder.” Vaught explained that
       Route 53 will be closer to the residence and that the paved parking and turnaround area will be
       restricted to a one-car parking area or a turnaround area, but not both. Vaught wrote: “This loss
       results in a diminution in the value of the remaining property.” He valued that loss at $34,000,
       based on comparable sales. Vaught concluded that the compensation due was $65,000.
¶9         During Vaught’s deposition, he testified as follows. He had never testified as an expert
       appraiser at a trial in an eminent domain case, but had testified as an expert appraiser in two
       divorce proceedings. His appraisal was in compliance with the Uniform Standards of
       Professional Appraisal Practice and he is a State of Illinois certified general real estate
       appraiser.
¶ 10       After reviewing the parties’ briefs and hearing oral argument on the motions, but without
       hearing testimony from any witnesses, the trial court denied the owner’s motion in limine and
       granted IDOT’s motion in limine. The trial court stated that it relied on Department of Public
       Works & Buildings v. Foreman State Trust & Savings Bank, 363 Ill. 13 (1936), and City of
       Springfield v. West Koke Mill Development Corp., 312 Ill. App. 3d 900 (2000), in granting
       IDOT’s motion.
¶ 11       IDOT requested the trial court to enter an order setting the amount of total just
       compensation at $18,000, consistent with Metz-Gohla’s opinion. The owner requested that
       discovery be reopened so that an amended appraisal could be prepared consistent with the trial
       court’s ruling. The trial court stated that it “would only reopen discovery if the other side
       agrees,” and IDOT did not agree to reopen discovery. On August 16, 2012, the trial court
       granted IDOT’s motion for entry of a final judgment consistent with Metz-Gohla’s valuation.
       On August 21, 2012, the trial court filed a “Final Judgment Order, Satisfaction and Release,”
       finding that full and just compensation to the owner for the taking and the damage to the
       remainder was $18,000, consistent with Metz-Gohla’s opinion, and that IDOT was due $2,000
       from the original $20,000 deposit.
¶ 12       On September 20, 2012, the owner filed a motion to vacate. The owner also requested that
       the trial court reconsider its ruling regarding the reopening of discovery and attached to the
       motion an amended appraisal report prepared by Vaught. On December 13, 2012, after hearing
       argument, the trial court denied the motion, citing Illinois, Iowa & Minnesota Ry. Co. v.
       Humiston, 208 Ill. 100 (1904), West Koke Mill, 312 Ill. App. 3d 900, and Department of Public
       Works & Buildings v. Butler, 5 Ill. App. 3d 134 (1972). The owner filed her notice of appeal on
       January 9, 2013.


¶ 13                                        II. ANALYSIS
¶ 14       The owner argues that the trial court erred by granting IDOT’s motion in limine to bar
       Vaught from testifying. The owner argues that Vaught used the proper method to value the part
       taken: the uniform unit method. IDOT argues that the trial court properly granted its motion in
       limine because Vaught’s method was not consistent with Illinois law. IDOT further argues that

                                                   -4-
       Vaught improperly assigned an equal value to every square foot of the property, regardless of
       whether it had been improved by a structure or not.
¶ 15       Before discussing the merits of the case, we must address the standard of review. The
       parties argue that we must review de novo the trial court’s decision to grant IDOT’s motion in
       limine to bar Vaught’s testimony, because the issue on appeal is a matter of law. We disagree
       with the parties.
¶ 16       Whether the facts and data relied upon by a given appraiser are of a type reasonably relied
       upon by experts in the field of real estate appraisals is a determination left to the sound
       discretion of the trial court. City of Chicago v. Anthony, 136 Ill. 2d 169, 186 (1990). Thus, we
       will not disturb a trial court’s decision to bar an appraiser’s testimony absent a clear abuse of
       discretion. City of Quincy v. Diamond Construction Co., 327 Ill. App. 3d 338, 343 (2002).
       Further, a trial court’s ruling on a motion in limine regarding the admission or exclusion of
       evidence is reviewed under the abuse-of-discretion standard. Maggi v. RAS Development, Inc.,
       2011 IL App (1st) 091955, ¶ 61.
¶ 17       The owner cites Forest Preserve District v. First National Bank of Franklin Park, 2011 IL
       110759, to support her argument that we should review de novo the trial court’s decision to
       grant IDOT’s motion in limine. However, in First National Bank of Franklin Park, the
       supreme court did not review a decision to grant a motion in limine. Thus, First National Bank
       of Franklin Park is not applicable to this case. We now turn to the merits of this appeal.
¶ 18       The unit rule provides that, in partial takings, the part taken must be valued as part of the
       whole, considering its best use. Department of Transportation v. Kelley, 352 Ill. App. 3d 278,
       281 (2004). However, not every part of a tract will be as valuable as other parts. Foreman State
       Trust, 363 Ill. at 21-22. Thus, the unit rule does not require the whole property to be valued on
       a single proportionate per-square-foot basis, ignoring the difference between the values of the
       part taken and the remainder. See Department of Transportation v. HP/Meachum Land Ltd.
       Partnership, 245 Ill. App. 3d 252, 255-56 (1993).
¶ 19       The parties have not directed our attention to any case comparable to the case at bar.
       However, in Meachum, we addressed a situation similar to this case, except in Meachum the
       land at issue was vacant. Id. at 253. Further, in Meachum, the land consisted partly of buildable
       nonwetland and partly of nonbuildable wetland. Id. IDOT condemned a portion consisting
       almost entirely of buildable nonwetland and argued that an appraiser must offer only one value
       for the whole property and apply that value proportionately to the part taken. Id. at 255. We
       held the following:
                    “Here, the State seeks to take a portion of the full tract that includes a larger
                percentage of buildable, nonwetland property than does the tract as a whole.
                Consequently, the application here of the State’s proposed rule, that an appraiser must
                offer only one valuation considering the total value of the entire parcel, would
                misrepresent the value of the specific land portion to be taken. We find that that rule
                does not follow the law of this State ***.” Id. at 256-57.
       Similarly, in City of Springfield v. West Koke Mill Development Corp., 312 Ill. App. 3d 900,
       905 (2000), an appraiser valued the remainder of the property higher than the part taken,
       because part of the part taken was encumbered by a permanent easement and the rest of it was
       suitable for use only as a drainage area. On appeal, the owner argued that it was “ ‘entitled to

                                                   -5-
       have the entire property valued on a unit basis, i.e., by value per square foot, taking into
       consideration the good and the bad and arriving at a homogenous unit value for the entire
       property.’ ” Id. The appellate court disagreed with the owner, stating that no authority stood for
       the proposition that “a landowner is entitled to have his property evaluated on a strict
       per-square-foot basis.” Id. at 906. The appellate court further stated that “ ‘the whole does not
       necessarily equal the sum of the parts.’ ” Id. at 905 (quoting Department of Public Works &
       Buildings v. Lotta, 27 Ill. 2d 455, 456 (1963)).
¶ 20        In this case, Vaught’s valuation method was improper. To determine the value of the part
       taken, Vaught assigned a uniform square-foot value to the entire property. Vaught assumed
       that every part of the property was as valuable as every other part, despite the fact that the
       remainder contained a single-family home and the part taken was a 10-foot-strip containing
       only parts of a lawn, an asphalt-paved driveway, and an asphalt-paved turnaround area.
       Because the part taken could not be used for any other purpose, i.e., it was nonbuildable,
       Vaught’s valuation method misrepresented the value of the “specific land portion to be taken.”
       Meachum, 245 Ill. App. 3d at 257. Vaught assumed, without basis, that the part taken was as
       valuable as the remainder. Therefore, Vaught’s opinion testimony would have been improper.
       The owner’s claim that the unit rule requires a determination based upon a uniform square-foot
       valuation misapplies the unit rule in this case. Such a calculation would be appropriate were
       the entire property, the part taken and the remainder, homogeneous.
¶ 21        Our analysis here comports with our supreme court’s decision in Foreman State Trust, 363
       Ill. 13. In Foreman State Trust, the Department’s witnesses testified that they did not consider
       the part taken to be as valuable as one of the remaining tracts, because the part taken was
       farther away from a country club than that remaining tract. Id. at 16. Relying on Humiston, 208
       Ill. 100, the owner argued on appeal that the witnesses’ testimony was improper because they
       valued the part taken as a separate piece of property rather than as a part of the entire property.
       Foreman State Trust, 363 Ill. at 21. The owner further argued that “one part of his land was as
       valuable as the other.” Id. The supreme court disagreed with the owner’s interpretation of
       Humiston, stating:
                “Because improvements on one part of a tract add to the value of the vacant land, when
                used in connection with the improvements, it does not follow that the vacant land is as
                valuable as the land which has the improvements on it, nor does it mean that every part
                of the vacant land is as valuable as every other part.” Id. at 22.
¶ 22        In this case, there was no basis for Vaught’s appraisal valuing every part of the property the
       same, where the remainder had a single-family home on it and the part taken, a 10-foot-strip,
       consisted of parts of a lawn, an asphalt-paved driveway, and an asphalt-paved turnaround area.
       Although the land in this case was not vacant, we see no reason to depart from the reasoning
       above. The purpose of a condemnation proceeding is to place the landowner, or condemnee, in
       the same economic position as if no condemnation occurred, not to improve the condemnee’s
       financial status. Kelley, 352 Ill. App. 3d at 280-81. Therefore, the trial court did not abuse its
       discretion by barring Vaught’s testimony.
¶ 23        Next, the owner argues that the trial court erred by denying her motion in limine to bar
       Metz-Gohla from testifying. The owner argues that Metz-Gohla’s method violated Illinois law
       because she failed to consider the contributory value of the improvements within the remainder
       when valuing the part taken.
                                                     -6-
¶ 24       In valuing the part taken, appraisers must consider the contributory value of improvements
       that are contained in the remainder. Department of Transportation v. Zabel, 47 Ill. App. 3d
       1049, 1053 (1977). In Zabel, the appellate court held that the trial court properly struck IDOT’s
       valuation witness, because in valuing the part taken he did not include the contributory value of
       the buildings present on the remainder. Id.
¶ 25       Similarly, in this case, Metz-Gohla failed to consider the contributory value of the
       improvements within the remainder when valuing the part taken. Contrary to her own opinion
       that the highest and best use of the whole property was residential, Metz-Gohla estimated the
       value of the part taken as vacant. She then valued the part taken on a per-acre basis, based only
       on comparable vacant-land sales. Metz-Gohla added $1.50 per acre for the contributory value
       of the improvements contained only on the part taken: asphalt and grass. She testified that,
       when she valued the part taken, she did not consider the contributory value of the single-family
       home, because it was “not part of the acquisition.” Thus, Metz-Gohla’s valuation method was
       improper and the trial court abused its discretion by denying the owner’s motion in limine to
       bar her testimony.

¶ 26                                      III. CONCLUSION
¶ 27      For the reasons stated, we affirm in part, reverse in part, vacate the judgment of total just
       compensation, and remand for further proceedings consistent with this opinion.

¶ 28      Affirmed in part and reversed in part; judgment vacated; cause remanded.




                                                   -7-
