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                                  Appellate Court                          Date: 2019.07.10
                                                                           12:21:09 -05'00'



          People ex rel. Department of Transportation v. Greatbanc Trust Co.,
                               2018 IL App (1st) 171315



Appellate Court       THE PEOPLE OF THE STATE OF ILLINOIS ex rel. THE
Caption               DEPARTMENT OF TRANSPORTATION, Plaintiff-Appellee, v.
                      GREATBANC TRUST COMPANY, f/k/a First National Bank in
                      Chicago Heights, as Trustee Under Trust Agreement Dated October 8,
                      1973, and Known as Trust Number 996; BENEFICIARY OR
                      BENEFICIARIES OF A TRUST AGREEMENT DATED
                      OCTOBER 8, 1973, AND KNOWN AS TRUST NUMBER 996,
                      With Greatbanc Trust Company, f/k/a First National Bank in Chicago
                      Heights, as Trustee, Whose Names Are Unknown and Are Designated
                      Unknown Owners; GREATBANC TRUST COMPANY, f/k/a First
                      National Bank in Chicago Heights, as Trustee Under a Trust
                      Agreement Dated December 4, 1970, and Known as Trust Number
                      1447; BENEFICIARY OR BENEFICIARIES OF A TRUST
                      AGREEMENT DATED DECEMBER 4, 1970, AND KNOWN AS
                      TRUST NUMBER 1447, With Greatbanc Trust Company, f/k/a First
                      National Bank in Chicago Heights as Trustee, Whose Names are
                      Unknown and Are Designated Unknown Owners; PETER KATTOS;
                      MARQUETTE BANK a/k/a Marquette; and UNKNOWN OWNERS,
                      Defendants (Greatbanc Trust Company, f/k/a First National Bank in
                      Chicago Heights, as Trustee under Trust Agreement Dated October 8,
                      1973, and Known as Trust Number 996, Peter Kattos, and Marquette
                      Bank a/k/a Marquette, Defendants-Appellants).



District & No.        First District, Second Division
                      Docket No. 1-17-1315



Filed                 December 4, 2018
     Decision Under          Appeal from the Circuit Court of Cook County, No. 06-L-050813; the
     Review                  Hon. Alexander P. White, Judge, presiding.



     Judgment                Affirmed.


     Counsel on              Figliulo & Silverman, PC (Carl A. Gigante and Rebecca K. Fournier,
     Appeal                  of counsel), and Kelly, Oldon, Michod, DeHaan & Richter, LLC
                             (Marc J. Chalfen, David S. Adduce, and Paul J. Richter, of counsel),
                             both of Chicago, for appellants.

                             Walker Wilcox Matousek, LLP, of Chicago (Amanda Ripp, of
                             counsel), for appellee.



     Panel                   JUSTICE PUCINSKI delivered the judgment of the court, with
                             opinion.
                             Presiding Justice Mason and Justice Hyman concurred in the
                             judgment and opinion.


                                              OPINION

¶1         In this eminent domain matter, defendants Greatbanc Trust Company, as trustee under
       Trust Agreement dated October 8, 1973, and known as Trust Number 996 (Greatbanc 1973),
       and Marquette Bank, a/k/a Marquette (Marquette), filed notices of appeal from the trial
       court’s grant of plaintiff Department of Transportation of the State of Illinois (IDOT)’s
       motions in limine with respect to defendant Peter Kattos’s valuation expert and the trial
       court’s grant of summary judgment in favor of IDOT on the issue of just compensation. For
       the reasons that follow, we affirm.

¶2                                        I. BACKGROUND
¶3         Before getting into the background of this appeal, we note that, on appeal, Kattos, not
       Greatbanc 1973, filed an appellant’s brief. Marquette joined in the arguments raised in that
       brief. Kattos, however, did not file a notice of appeal in the trial court. Rather, notices of
       appeal were filed on behalf of only Greatbanc 1973 and Marquette. It appears that this
       inconsistency arises out of the sloppy filing of attorney appearances in the trial court on
       behalf of Kattos and Greatbanc 1973. Initially, an appearance by the firm of Neal & Leroy
       was filed on behalf of Kattos. No appearance was filed on behalf of Greatbanc 1973. Later,
       Neal & Leroy filed a motion to substitute counsel. In that motion, Neal & Leroy stated that
       attorney Thomas Goedert, as a member of Neal & Leroy, had been representing Ashton
       Drive, LLC, Petey’s Two Real Estate, LLC, and Kattos. (Ashton Drive, LLC, and Petey’s

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     Two Real Estate, LLC, were not named parties to the present case, but apparently were the
     beneficiaries of the two trusts for which Greatbanc Trust Company was named in its capacity
     as trustee.) Because Goedert was leaving Neal & Leroy, the firm sought to withdraw its
     representation of these parties and requested that Goedert be allowed to file his individual
     appearance on behalf of those parties. That motion was granted. Thereafter, Goedert filed an
     appearance on behalf of Ashton Drive, LLC, and Petey’s Two Real Estate, LLC. He did not
     file an appearance on behalf of either Kattos or Greatbanc 1973, although he continued to file
     documents on behalf of Kattos and signed the notice of appeal on behalf of Greatbanc 1973.
     Appellate counsel (not Goedert) then filed an appellant’s brief on behalf of Kattos.
¶4        It appears, from what we can gather from this confusing record, that Goedert intended to
     represent all of the named defendants except Marquette, which had separate counsel. Under
     different circumstances, this lack of attention to detail could present serious issues regarding
     who might be entitled to relief on appeal. However, because we affirm the trial court’s
     decisions on a basis that applies equally to all named defendants, we need not sort out the
     mess that is the representation of the defendants other than Marquette. In an attempt to
     minimize confusion in this decision, we will use the term “appellants” to refer to Greatbanc
     1973, Kattos, and Marquette, all of whom, in some fashion, claim an interest in this appeal.
¶5        Turning now to the facts of this case, in August 2006, IDOT filed a complaint to
     condemn a portion of real property in which the named defendants had either an ownership
     or beneficial interest1 (subject property) for use in a road improvement project. The subject
     property was located at the intersection of U.S. Route 6 and U.S. Route 45 in Orland Park
     and totaled approximately 40 acres. Although the majority of the subject property was
     vacant, a portion of it was improved with a restaurant operated by Kattos. Initially, IDOT
     sought to take fee simple title in a total of 5.258 acres of the subject property (3.238 acres of
     which was already dedicated or used for highway purposes) and temporary easements over
     an additional 0.322 acres of the subject property. One of the parcels in which IDOT sought
     fee simple title included part of the existing restaurant, requiring the restaurant to be either
     demolished or remodeled. In 2008, after Kattos refused to demolish the restaurant, IDOT
     reduced the size of the property it sought to condemn, such that it no longer included any part
     of the restaurant.
¶6        After what appears to be eight years of fact and expert discovery, in March 2016, IDOT
     filed two motions in limine directed toward the opinions of Kattos’s valuation expert, Joseph
     Thouvenell. In the first motion in limine, IDOT argued that Thouvenell should be barred
     from testifying at trial because his opinions on the value of the subject property, the property
     taken, and the remainder were based on improper appraisal methods. In the second motion
     in limine, IDOT argued that certain comparable sales Thouvenell used in his valuation
     opinions were inadmissible.
¶7        The trial court set a briefing schedule on the motions in limine and set a hearing date for
     May 25, 2016. Appellants did not file a response. At the scheduled hearing, the trial court

         1
          Again, the record is not clear on the precise relationship of the named defendants to the subject
     property. Although not specifically stated anywhere, it appears, based on information gathered in the
     record and from statements in the parties’ appellate briefs, that the two trusts for which Greatbanc Trust
     Company is the trustee were the record owners of the two parcels that comprised the subject property.
     The beneficiaries of those trusts were two unnamed LLCs owned by Kattos.

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       granted appellants an extension of time in which to respond to the motions in limine.
       Thereafter, over the course of the next nine months, the trial court granted appellants another
       five extensions of time in which to respond to IDOT’s motions in limine. In the final
       extension order, entered February 28, 2017, the trial court granted appellants until March 13,
       2017, to respond to the motions in limine and set a hearing on the motions for April 4, 2017.
       On March 30, 2017, after appellants had again failed to file any response to IDOT’s motions
       in limine, the trial court entered an order granting the motions. In that order, the trial court
       recounted in detail IDOT’s arguments in its motions in limine. After noting that appellants
       failed to file any response to the motions and that it would therefore consider the motions
       unopposed, the trial court stated that it agreed with IDOT’s contentions in both motions
       in limine. Therefore, the trial court granted both motions in their entirety.
¶8          On April 4, 2017, the date set for the hearing on the motions in limine, the trial court
       entered an order, denying appellants’ motion for another extension of time to respond to the
       motions in limine and to reset the trial date. The order also noted that IDOT would be filing a
       motion for summary judgment the following day and ordered appellants to respond to that
       motion for summary judgment by April 12, 2017. The trial court set a hearing on the motion
       for summary judgment for April 18, 2017.
¶9          In the motion for summary judgment filed the following day, IDOT sought summary
       judgment on the amount of final just compensation for the property taken. IDOT argued that
       because the trial court had granted IDOT’s motions in limine regarding Thouvenell’s
       opinions, the only valuation evidence was the opinions of IDOT’s appraisers, who opined
       that the total just compensation for the taking fell somewhere in the range of $1.378 million
       to $1.52 million. IDOT stated that it would stipulate, only for purposes of the motion for
       summary judgment, that just compensation was $1.52 million.
¶ 10        By the time of the hearing on the motion for summary judgment, appellants had again
       failed to file any response, and the trial court granted IDOT’s motion for summary judgment.
       Thereafter, on April 27, 2017, the trial court entered its final judgment order, setting just
       compensation for the taking at $1.52 million and confirming its previous orders granting
       IDOT title and/or temporary easements in the taken property. In addition, the trial court
       explicitly stated that there was no just reason to delay either enforcement or appeal of the
       order. Thereafter, Greatbanc 1973 and Marquette filed their respective notices of appeal.

¶ 11                                           II. ANALYSIS
¶ 12        On appeal, appellants argue that the trial court erred in granting IDOT’s motions
       in limine and, in turn, IDOT’s motion for summary judgment. More specifically, they argue
       that any errors in Thouvenell’s appraisal methods went to the weight of his opinions, not
       their admissibility, and that the comparable sales that Thouvenell utilized were proper. In
       addition, they argued that even if the trial court properly granted IDOT’s motions in limine,
       the motions in limine did not challenge Thouvenell’s opinion of the value of the part taken or
       Thouvenell’s use of comparable sale 5A and, thus, that evidence should have been
       considered in assessing whether summary judgment should be granted. In response, IDOT
       argued, among other things, that appellants waived their contentions on appeal by failing to
       raise any of them in the trial court. We agree.
¶ 13        It is a well-established principle of appellate practice that contentions not raised in the
       trial court are waived and may not be raised for the first time on appeal. See, e.g., Haudrich

                                                  -4-
       v. Howmedica, Inc., 169 Ill. 2d 525, 536 (1996); Moore v. Board of Education of the City of
       Chicago, 2016 IL App (1st) 133148, ¶ 35 (refusing to consider issue not raised at any point
       in trial court). The purpose of this and other waiver rules is to preserve judicial resources by
       requiring parties to bring issues to the trial court’s attention, thereby allowing the trial court
       an opportunity to correct any errors. People v. McKay, 282 Ill. App. 3d 108, 111 (1996). In
       other words, “[a] party cannot stand idly by and not object, and then appeal, arguing that the
       trial court’s action was wrong.” Mohica v. Cvejin, 2013 IL App (1st) 111695, ¶ 85. A party’s
       failure to first raise an issue or theory in the trial court “weaken[s] the adversarial process and
       our system of appellate jurisdiction” and prejudices the opposing party by depriving that
       party of the opportunity to respond to the issue or theory with its own evidence and
       argument. Daniels v. Anderson, 162 Ill. 2d 47, 59 (1994).
¶ 14        Here, despite being granted six extensions of time and nearly a year in which to respond,
       none of the appellants (or other named defendants) filed a written response to IDOT’s
       motions in limine or a motion to reconsider the grant of the motions in limine. In addition,
       appellants did not include in the record on appeal any reports of proceedings related to the
       motions in limine. See Foutch v. O’Bryant, 99 Ill. 2d 389, 391-92 (1984) (“[A]n appellant has
       the burden to present a sufficiently complete record of the proceedings at trial to support a
       claim of error, and in the absence of such a record on appeal, it will be presumed that the
       order entered by the trial court was in conformity with law and had a sufficient factual basis.
       Any doubts which may arise from the incompleteness of the record will be resolved against
       the appellant.”). Therefore, based on the record, appellants made no effort whatsoever to
       respond or object to IDOT’s motions in limine, despite the fact that they were given many
       opportunities to do so.
¶ 15        Likewise, despite having failed to take advantage of the trial court’s generosity in
       granting numerous extensions on the motions in limine, Kattos and Marquette continued to
       be derelict and made no attempt to respond to IDOT’s motion for summary judgment or to
       seek an extension of time in which to respond. They also, again, did not include any report of
       proceeding in the record, demonstrating that they registered any oral objections to IDOT’s
       motion for summary judgment. Based on this complete and utter lack of effort to present
       their arguments and objections in the trial court, application of the waiver rule to appellants’
       contentions on appeal is clear.
¶ 16        Appellants attempt to avoid the application of the waiver rule in a couple of ways. First,
       they argue that their failure to file a written response to the motions in limine did not waive
       their opposition to the motions, per Cook County Circuit Court Rule 2.1(d) (Aug. 21, 2000).
       Rule 2.1(d) outlines the procedure for filing motions in the Law Division of the Circuit Court
       and sets a standard briefing schedule for motions. Id. It then provides in relevant part:
       “Failure to file a supporting or answering memorandum shall not be deemed to be a waiver
       of the motion, or a withdrawal of the opposition thereto, but shall be deemed to be a waiver
       of the right to file the respective memorandum.” Id.
¶ 17        Appellants argue that because their failure to file a written response to the motions
       in limine did not waive their objections to the motions, the trial court erred in granting the
       motions in limine by default and in denying them the opportunity to orally object to the
       motions at the scheduled hearing. We note that appellants’ argument in this respect focuses
       primarily on the issue of whether they waived their contentions in the trial court and whether
       the trial court erred in ruling on the motions in limine without input from appellants; it does

                                                    -5-
       not directly address whether they waived their contentions on appeal. Nevertheless, because
       this argument implies that appellants were improperly deprived of the opportunity to raise
       their contentions in the trial court, we address it to the extent that it affects waiver on appeal.
¶ 18        As an initial matter, we disagree that the trial court granted the motions in limine by
       default. Although the trial court noted in its written decision that the motions in limine were
       unopposed, it also affirmatively stated that it agreed with the merits of IDOT’s in the
       motions. Thus, on our review, it appears that the trial court granted the motions in limine
       based on their merits, not based on appellants’ failure to file written responses.
¶ 19        We also reject appellants’ contention that by ruling on the motions in limine prior to the
       scheduled hearing date, the trial court denied them the opportunity to orally object. Not only
       was the trial court not obligated to provide an opportunity for oral arguments on such
       motions (Korbelik v. Staschke, 232 Ill. App. 3d 114, 118-19 (1992) (oral arguments in a case
       tried without a jury are a privilege, not a right)), but also, as mentioned, appellants failed to
       include in the record on appeal a report of proceeding for the scheduled hearing date of April
       4, 2017. As a result, we have no way to ascertain whether appellants objected to the motions
       in limine or the trial court’s issuance of a decision on the motions prior to the hearing. We are
       also unable to ascertain whether the trial court indicated a willingness to revisit the merits of
       the motions in limine or addressed its issuance of a written order prior to the scheduled
       hearing. We also note that the order entered following the April 4, 2017, hearing indicated
       that the only request made by defendants was that they be given another extension of time in
       which to file a written response to the motions in limine. Given all of this, the fact that it was
       appellants’ burden to present us with a sufficient record on which to review the claimed
       errors, and that all inadequacies in the record must be construed against the appellants, we
       see no basis to conclude that the trial court wrongfully deprived appellants of the opportunity
       to orally object to the motions in limine.
¶ 20        Putting those initial matters aside, we conclude that Rule 2.1(d) has no effect on our
       determination that appellants have waived their contentions on appeal. Rule 2.1(d) speaks to
       the waiver effect of the failure to file a written response to a motion in the trial court. See
       Cook County Cir. Ct. R. 2.1(d) (Aug. 21, 2000). We are not the trial court, nor is our
       conclusion that appellants waived their contentions based merely on their failure to file
       written responses to IDOT’s motions in limine and for summary judgment. Instead, we have
       applied the well-known appellate rule that the failure to raise issues in the trial court results
       in waiver of those issues on appeal to conclude that appellants’ complete and utter failure to
       register any objections to IDOT’s motions—whether orally or in writing—waived their
       contentions on appeal. Even if Rule 2.1(d) had some application in the appellate context, it
       addresses only the failure to file a written response. Appellants do not explain how it has any
       effect on the waiver that results from their failure to demonstrate that they registered oral
       objections or their failure to file motions to reconsider the trial court’s alleged errors.
¶ 21        In support of their contention that Rule 2.1(d) is relevant to determining whether
       contentions on appeal have been waived, appellants cite Parkway Bank & Trust Co. v.
       Meseljevic, 406 Ill. App. 3d 435 (2010). In that case, the defendant filed an untimely
       response to the plaintiff’s motion for judgment on the pleadings (it was filed one day late),
       despite the trial court’s warning that the failure to file a timely written response would result
       in waiver of oral argument on the motion. Id. at 438. The trial court struck the untimely
       response and barred the defendant from presenting oral argument on the motion. Id. On

                                                    -6-
       appeal, the plaintiff argued that the defendant waived any objection to the trial court’s grant
       of judgment on the pleadings by failing to object in the trial court. Id. at 442-43. Noting that
       Rule 2.1(d) provided that the failure to file a written response only waived the right to file the
       response, not the party’s objection, the appellate court concluded that the defendant had not
       failed to object, but only that its objection was stricken as untimely. Id. at 443. The court also
       observed that, in addition to objecting in writing, albeit untimely, the defendant also appeared
       at the hearing on the motion, ready to object, despite its oral objection having been barred. Id.
       at 443-44. Thus, the court concluded that application of the waiver rule was inappropriate
       because the defendant had clearly made every attempt to object. Id. at 444.
¶ 22        Parkway Bank is inapposite to the present case. The defendant in that case made every
       effort to object to the motion for judgment on the pleadings, both in writing and orally, and
       its only fault was failing to file its written response on time. In the present case, based on the
       record before us, appellants made no effort whatsoever to object, in any manner, to IDOT’s
       motions in limine and motion for summary judgment. Rather, they did exactly what the
       waiver rule was designed to prevent—they sat idly by for nearly a year, filed nothing, argued
       nothing, and now attempt to argue that the trial court erred.
¶ 23        Despite this, appellants argue that their intent to object was evidenced by their numerous
       requests for extension of time to respond to IDOT’s motions. Whatever their intent might
       have been, the fact remains that appellants never filed any written response to the motions
       in limine, despite being given six extensions of time and nearly a year in which to do so. Nor
       did they file a written response to the motion for summary judgment or even request an
       extension of time in which to respond. There also is no evidence in the record of any attempt
       to orally object at the hearings on the motions. Under these circumstances, what appellants
       may or may not have intended to do is irrelevant. Waiver results from the failure to raise an
       issue in the trial court, not the lack of intention to raise the issue in the trial court.
¶ 24        Appellants also argue that we should overlook waiver in the interests of justice. They
       argue that because there exists a constitutional right to just compensation in eminent domain
       cases and because the difference between Thouvenell’s valuation and what was awarded was
       over $1.5 million, if IDOT’s expert undervalued the subject property, then the trial court’s
       alleged errors prejudiced Kattos and Marquette and violated their constitutional rights.
¶ 25        Although it is true that “[i]n exceptional cases, we may refuse to apply waiver in the
       interests of justice” (In re Marriage of Brackett, 309 Ill. App. 3d 329, 338 (1999)), we see
       nothing exceptional about this case to warrant putting aside waiver, especially given
       appellants’ blatant disregard of the trial court’s response deadlines. The fact that
       constitutional rights are involved does not alter our opinion. It is well established that waiver
       applies equally in cases involving constitutional rights and constitutional claims on appeal.
       See, e.g., Cholipski v. Bovis Lend Lease, Inc., 2014 IL App (1st) 132842, ¶ 58; Hytel Group,
       Inc. v. Butler, 405 Ill. App. 3d 113, 127 (2010). In addition, if we were to overlook waiver in
       every case where the appealing party might be prejudiced, the waiver rule would essentially
       disappear, as every appellant claims that it was prejudiced by the trial court’s decisions.
       Moreover, appellants have not pointed to anything that would cause us to conclude that
       application of the waiver rule would result in an exceptional injustice. The fact of the matter
       is that, at the end of the day, the trial court did award compensation for the taking of the
       property. Although the $1.52 million awarded is less than the compensation Thouvenell
       suggested, the compensation awarded by the trial court was based on a valuation prepared by

                                                   -7-
       an expert whose credentials and methods appellants have not challenged. Accordingly, we
       disagree that the present case is one of those exceptional cases in which waiver should be
       overlooked in the interests of justice. As our supreme court has noted, “[W]hile our case law
       is permeated with the proposition that waiver and forfeiture are limitations on the parties and
       not on the court, that principle is not and should not be a catchall that confers upon reviewing
       courts unfettered authority to consider forfeited issues at will.” Jackson v. Board of Election
       Commissioners, 2012 IL 111928, ¶ 33.
¶ 26        We observe that the conclusion that an appellant has waived all of his or her contentions
       on appeal may initially appear to be harsh. This is likely due to the fact that it is not a
       common occurrence to see such a blatant example of waiver as is present in this case; it is not
       often that a party repeatedly and completely fails to object to pivotal motions in the trial
       court. It is also this blatant disregard, however, that warrants the application of the waiver
       rule in this case. Despite being given every opportunity to respond to IDOT’s motions
       in limine and motion for summary judgment, appellants repeatedly failed to take advantage
       of those opportunities. Recall, the trial court granted appellants a total of six extensions of
       time in which to file their written responses to the motions in limine, which gave appellants a
       total of one year in which to respond. Moreover, despite having lost their opportunity to
       respond to the motions in limine just a couple of weeks before, appellants completely
       disregarded their opportunity to file a written response to IDOT’s motion for summary
       judgment. Their failure to respond to the motion for summary judgment cannot be attributed
       to a sense of futility following the trial court’s decision on the motions in limine because
       appellants argue that the motion for summary judgment should have been denied even if the
       motions in limine were properly granted. Further, appellants never filed any sort of motion to
       reconsider either of those decisions, and they have pointed to nothing in the record
       evidencing any attempt to register oral objections to these motions.
¶ 27        We can think of few circumstances that would better illustrate the purpose of and need
       for the waiver rule than the circumstances of this case. IDOT and the trial court undoubtedly
       spent a significant amount of time and effort on briefing, arguing, reading, researching, and
       deciding the motions in limine and motion for summary judgment. It would be a great waste
       of those judicial resources and supremely unfair for us to undo all of that work at appellants’
       request after they literally did nothing to object to the motions for over a year. Although we
       recognize that it is not a common occurrence that a party waives its entire case on appeal, we
       think it appropriate, necessary, and in the interests of justice to strictly apply the rule in this
       case.

¶ 28                                      III. CONCLUSION
¶ 29      For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.

¶ 30      Affirmed.




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