Department of Transportation v. Crull

NO. 4-97-0430

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE DEPARTMENT OF TRANSPORTATION, ) Appeal from
STATE OF ILLINOIS, ) Circuit Court of
Plaintiff-Appellant, ) Peoria County
v. ) 96ED11
HARRY E. CRULL, MARIAN E. CRULL, )
LESTER'S TASTY DONUTS, INC., an )
Illinois corporation, )
Defendants-Appellees, )
and )
COMMERCE BANK, NA, THE CITY OF )
CHILLICOTHE, and THE PEORIA COUNTY ) Honorable
TREASURER, ) Bruce W. Black,
Defendants. ) Judge Presiding.
_________________________________________________________________

JUSTICE STEIGMANN delivered the opinion of the court:
In April 1996, plaintiff, the Illinois Department of
Transportation (Department), filed a complaint for condemnation
against defendants, Harry and Marian Crull, who owned some
property the Department needed for the purpose of widening Route
29 in Chillicothe, Illinois. In January 1997, the jury returned
a verdict for damage to the remainder in the amount of $112,000,
and the trial court entered an order reflecting that verdict.
(The only issue at trial was the amount of damage to the remain-
der.)
The Department appeals, arguing that the trial court
erred by allowing defendants' opinion witness to (1) testify at
trial regarding previously undisclosed opinions, and (2) calcu-
late fair market values using improper methods. Because we agree
with the Department's first argument, we reverse and remand for a
new trial.
I. BACKGROUND
In April 1996, the Department filed a complaint for
condemnation against defendants Harry and Marian Crull (as well
as some others who are not parties to this appeal) to acquire
property defendants owned for the purpose of widening Route 29 in
Chillicothe, Illinois.
Defendants' property is located at the intersection of
Beech Street and Route 29. It is improved with an L-shaped
commercial building containing three businesses owned by defen-
dants and one business that rented space from defendants. The
property had 10 parking spaces in front of the building (adjacent
to Route 29) and 22 parking spaces on the side of the building.
The Department sought a piece of this property approximately 10
feet wide bordering Route 29 and a triangular piece across the
corner at the intersection. The taking eliminated the 10 parking
spaces in front of the building.
In October 1996, the trial court entered an order
vesting the Department with title to the premises. Prior to
trial on the issue of final just compensation, the parties stipu-
lated to the amount of damages for the fee simple and temporary
easement acquisitions and further stipulated that damage to the
remainder would occur. Accordingly, the only issue at trial was
the amount of damage to the remainder.
During a pretrial deposition, Gregory Stone,
defendants' opinion witness, stated that he calculated the fair
market value of the property before the taking using the cost
method, income method, and sales comparison method. He settled
on a fair market value of $240,000, based on the income method.
He also stated that he would testify that the damage to the
remainder totaled $125,011.64 as of June 24, 1996, based on the
cost-to-cure method. The cost to cure was the cost of tearing
down a portion of defendants' building along Route 29 (to provide
parking spaces) and constructing an addition with the same square
footage at the rear of the building.
James Klopfenstein, a professional appraiser and the
Department's opinion witness, testified that the fair market
value of the whole property before the taking was $216,000, based
on sales of comparable properties. (The parties stipulated that
the value of the fee simple acquisition was $10,000.) The taking
damaged the property by eliminating parking spaces and moving the
road closer to the building. Klopfenstein appraised the
property's fair market value after the taking at $171,000, based
on his judgment, knowledge, and 30 years' experience with the
real estate market. Thus, the damage to the remainder as a
result of the fee simple taking--the difference in value between
the property before and after the taking--was $35,000.
Klopfenstein also testified that the damage as a result of the
easement totaled $8,800, resulting in a total damage amount of
$43,800. These appraisals were based on values as of the date of
filing, April 25, 1996.
At trial, Stone repeated his deposition testimony that
the damage to the remainder totaled $125,011.64, based on the
cost-to-cure method. He also opined that the value of the
property before the taking was $240,000, and the value after the
taking was $50,000; therefore, the difference--the damage to the
remainder--was $190,000, as of April 25, 1996. Taking into
account the value of the fee simple and easement acquisition,
Stone arrived at a total damage figure of $179,000.
At trial, the Department objected to Stone's use of the
cost-to-cure method to calculate values. The trial court agreed
that the cost-to-cure method was improper, struck the testimony,
and instructed the jury to disregard that portion of Stone's
opinion that valued the damage to the remainder at $125,011.64,
based on the cost to cure.
The Department objected to Stone's remaining testimony
on the basis that it had not been disclosed prior to trial; thus,
it violated Supreme Court Rule 213 (166 Ill. 2d R. 213). The
Department's counsel stated:
"Nowhere in [Stone's deposition or report] is
there an opinion disclosed to me as to what
his opinion is of the fair market value of
the remainder after the taking as affected by
the taking."
However, the trial court overruled the Department's objection and
allowed Stone's remaining testimony to stand, stating that it was
in the best interest of justice to allow the testimony. The
court also stated that "the rest of [Stone's] testimony will be
something the jury may consider, including the portions that were
not disclosed before today."
In January 1997, the jury entered a verdict for damage
to the remainder in the amount of $112,000, and the trial court
subsequently entered a judgment on that verdict.
II. THE RULE 213 VIOLATION
The Department first argues that the trial court erred
by permitting defendants to present previously undisclosed opin-
ions to the jury in violation of Supreme Court Rule 213 (166 Ill.
2d R. 213). The Department specifically contends that the court
should have excluded Stone's trial testimony to the extent it had
not been previously disclosed or was inconsistent with Stone's
discovery disclosures. In response, defendants contend that
Stone presented no new opinions at trial; rather, (1) he was
merely explaining the basis for his opinions that the damage to
the remainder equalled $125,011.64; and (2) the Department's
counsel never asked Stone to explain the basis for his opinion
during his deposition. We agree with the Department.
The record showed that Stone--in both his deposition
and written report--appraised the property before the taking at
$240,000, a figure derived from the income method. He opined
that the damage totalled $125,011.64 and he described in detail
how he calculated that figure using the cost-to-cure method. His
report and deposition both stated that the taking caused "func-
tional obsolescence" because all the parking would have to be at
the back of the property.
Regarding the fair market value of the whole property
before the taking, Stone testified at trial that (1) the fair
market value of the whole property before the taking was
$240,000; (2) he had relied primarily on the comparable sales (or
market data) method to determine that amount; and (3) the income
method "was supportive of that value."
Stone also testified at trial that several methods may
be used to determine damage to the remainder, as follows:
"[Y]ou can assume that there could have been
a total taking, that the property was so
damaged that it couldn't be used again, and
thus you would have to take the building off
and you would be left with the land. And
from that land value, you would subtract the
cost of demolition, which would indicate that
the property's worth about $40,000. So your
damages are approximately $200,000.
Then you can look at it from a change of
use [but] [t]hat's kind of speculative ***.
*** The cost to [change the use] ***
would be substantial, exceeding probably
$150-160,000 ***.
The third possibility was *** to remove
the Lester's Donut building and move it
around and rebuild it on the back ***. And
that rehabilitation or reconstruction was the
sum of the cost of demolition, the cost to
put in the new front and to rebuild the small
Lester's Donuts on the other end of the prop-
erty."
He testified that the fair market value of the remainder without
any proposed reconstruction would be $50,000; thus, the damage to
the remainder would be $190,000. He then stated that he selected
the figure for damage to the remainder derived from the cost-to-
cure method because that method resulted in the lowest amount--
namely, $125,011.64.
After Stone testified at trial, the Department objected
to Stone's use of the cost-to-cure method to calculate values in
an eminent domain case, contending that while an appraiser may
consider the cost to cure, he or she must determine the value
before and after the taking and may not present evidence to the
jury on the cost to cure. See Department of Transportation v.
Quincy Coach House, Inc., 64 Ill. 2d 350, 356 N.E.2d 13 (1976);
City of Freeport v. Fullerton Lumber Co., 98 Ill. App. 3d 218,
423 N.E.2d 924 (1981). The trial court sustained the Depart-
ment's objection, struck the testimony, and instructed the jury
to disregard that part of Stone's opinion valuing the damage to
the remainder at $125,011.64. (We note that defendants do not
challenge the court's ruling on the propriety of using the cost-
to-cure method.) Nevertheless, the court expressly admitted por-
tions of Stone's testimony that it acknowledged had not been
previously disclosed--specifically his estimate that the fair
market value after the taking without considering reconstruction
was $50,000.
Supreme Court Rule 213 requires that, upon written
interrogatory, a party must disclose the subject matter, conclu-
sions, opinions, qualifications and all reports of a witness who
will offer any opinion testimony. Iser v. Copley Memorial Hospi-
tal, 288 Ill. App. 3d 408, 411, 680 N.E.2d 747, 749 (1997).
Subsections (g) and (i) provide as follows:
"(g) Opinion Witness. An opinion witness is
a person who will offer any opinion testimo-
ny. Upon written interrogatory, the party
must state:
(i) the subject matter on
which the opinion witness is ex-
pected to testify;
(ii) the conclusions and
opinions of the opinion witness and
the bases therefor; and
(iii) the qualifications of
the opinion witness;
and provide all reports of the opinion wit-
ness.
***
(i) Duty to Supplement. A party has a duty
to seasonably supplement or amend any prior
answer or response whenever new or additional
information subsequently becomes known to
that party." (Emphasis added.) 166 Ill. 2d
Rs. 213 (g), (i).
The express language of Rule 213 plainly provides that each party
is required to disclose an opinion witness' proposed testimony,
including conclusions and the basis of those conclusions.
Further, subsection (i) of Rule 213 gives each party a continuing
duty to inform the opponent of new or additional information
whenever such information becomes known to the party. The
committee comments to subsection (g) of Supreme Court Rule 213
further emphasize these points, stating as follows:
"It is the Committee's belief that in
order to avoid surprise, the subject matter
of all opinions must be disclosed pursuant to
this rule and Supreme Court Rule 218, and
that no new or additional opinions will be
allowed unless the interests of justice re-
quire otherwise. *** Further, upon written
interrogatories, a party must state the sub-
ject matter to be testified to, the conclu-
sions, opinions[,] and qualifications of
opinion witnesses, and provide all reports of
opinion witnesses." (Emphasis added.) 166
Ill. 2d R. 213(g), Committee Comments, at
lxxviii.
In reviewing a criminal case involving counsel's
failure to comply with one of the supreme court rules governing
criminal procedure, the supreme court stated that those rules
"are in fact rules of procedure and not suggestions" and it is
incumbent upon counsel and courts alike to follow them. People
v. Wilk, 124 Ill. 2d 93, 103, 529 N.E.2d 218, 221 (1988) (con-
struing Rule 604(d) (107 Ill. 2d R. 604(d))).
The supreme court rules on discovery are also mandatory
rules of procedure that courts and counsel must follow. See
Chicago & Illinois Midland Ry. Co. v. Crystal Lake Industrial
Park, Inc., 225 Ill. App. 3d 653, 658, 588 N.E.2d 337, 341
(1992); Wilkerson v. Pittsburgh Corning Corp., 276 Ill. App. 3d
1023, 1034-35, 659 N.E.2d 979, 987 (1995). Discovery rules
permit litigants to ascertain and rely upon the opinions of
experts retained by their adversaries. Crystal Lake, 225 Ill.
App. 3d at 658, 588 N.E.2d at 341. The supreme court rules
represent the court's best efforts to manage the complex and
important process of discovery. The committee comments to Rule
213 plainly state that one of the purposes of Rule 213 is to
avoid surprise. 166 Ill. 2d R. 213(g), Committee Comments. To
allow either side to ignore Rule 213's plain language defeats its
purpose and encourages tactical gamesmanship. See Crystal Lake,
225 Ill. App. 3d at 658, 588 N.E.2d at 341 (the trial court's
admission of an expert witness' testimony that was inconsistent
with his deposition testimony (under Rule 220, which formerly
governed expert witnesses (134 Ill. 2d R. 220(d))) constituted an
"egregious violation" of discovery rules).
Decisions regarding admission of evidence in a condem-
nation case lie within the trial court's discretion and will not
be reversed absent an abuse of that discretion. Crystal Lake,
225 Ill. App. 3d at 658, 588 N.E.2d at 341. In this case, the
trial court abused its discretion by allowing Stone to testify
regarding his previously undisclosed opinions, including the fair
market value of the remainder without reconstruction. The court
knew that Stone had not previously disclosed this testimony and
apparently recognized that Rule 213 barred it because the court
stated that "the interests of justice" required admitting that
testimony. We disagree. This is precisely the situation that
the rule was intended to address, and no extenuating circum-
stances exist here that justify an exception to the rule.
Further, in response to defendants' contention that
Stone only sought to explain the basis of his conclusions and was
not providing new or additional information in violation of Rule
213, we note that Rule 213 expressly requires a party to disclose
all opinions and "the bases therefor." (Emphasis added.) 166
Ill. 2d 213(g)(ii).
In so holding, we reject the trial court's implication
that the Department's counsel acted in bad faith by not moving to
strike this evidence prior to trial. In permitting Stone to
testify regarding his undisclosed opinions on the fair market
value of the property, the trial court stated as follows:
"The discovery rules are an attempt to
avoid surprises in the courtroom and to avoid
what we might commonly call sandbagging the
opposition.
From your argument, [counsel], it's
clear that you intended to isolate this opin-
ion, or this witness's opinions, so that at
this point in the trial you could make the
motion to strike all of his testimony.
I think what you should have done is
file a motion prior to trial to bar him as a
witness because of the fact that his opinions
are not legally proper."
The Department's counsel admitted that she knew before
trial that the cost-to-cure method was generally inadmissible as
a basis for determining fair market value of a condemned proper-
ty. At trial, she stated as follows:
"The only reason I haven't moved to
strike [the cost-to-cure method] at this
point was because I felt that technically
[defendants' counsel] had the opportunity to
tie things together. And when he did try to
tie them together, it was in an improper
fashion because he attempted to introduce an
opinion that wasn't previously disclosed."
We decline to impose upon counsel any legal, moral, or profes-
sional obligation of any kind to inform her opponent of weakness-
es in the opponent's case, witnesses, or proposed evidence.
Neither Illinois law nor professional ethics require an attorney
to advise his or her opponent of such deficiencies or how best to
present his or her case.
The Department argues that this court should strike
Stone's previously undisclosed testimony on the value of damage
to the remainder and remand with directions that the trial court
enter judgment consistent with the only evidence remaining before
the jury--the testimony of the Department's opinion witness,
James Klopfenstein. In response, defendants assert that if we
conclude that the court erred, then we should remand for a new
trial.
Normally, we would grant the Department's request and
reject defendants' response. However, we choose not to do so in
this case--in part because it appears to us that Rule 213 estab-
lishes more exacting standards regarding disclosure than did
Supreme Court Rule 220 (134 Ill. 2d R. 220), repealed by order of
June 1, 1995, which formerly governed expert witnesses. Trial
courts should be more relucant under Rule 213 than they were
under former Rule 220 (1) to permit the parties to deviate from
the strict disclosure requirements, or (2) not to impose severe
sanctions when such deviations occur. Indeed, we believe one of
the reasons for new Rule 213 was the need to require stricter
adherence to disclosure requirements. Nevertheless, because this
case constitutes one of the first to construe new Rule 213 and to
point out this higher standard of compliance, we decline the
Department's request to remand with directions to enter judgment.
Instead, we reverse the trial court and remand for a new trial.
III. CONCLUSION
For the reasons stated, we reverse the trial court's
judgment and remand for a new trial.
Reversed and remanded for a new trial.
GARMAN P.J., and KNECHT, J., concur.