NO. 4-01-0328

	IN THE APPELLATE COURT

	OF ILLINOIS

	FOURTH DISTRICT

THE CITY OF QUINCY, ILLINOIS, an 		)	Appeal from

Illinois Municipal Corporation,		)	Circuit Court of

	Plaintiff-Appellee,     		)	Adams County

	v.			 			)	No. 00ED1

DIAMOND CONSTRUCTION COMPANY, an		)	

Illinois Corporation,             		)	Honorable

	Defendant-Appellant.		)	Mark A. Schuering,

							)	Judge Presiding.

_______________________________________________________________

	JUSTICE KNECHT delivered the opinion of the court:

	The plaintiff, City of Quincy (City), initiated an eminent domain action to acquire a portion of defendant, Diamond

Construction Company's (Diamond), property to complete a street-

extension project.  The City, during a five-month period, pro

cured two strikingly different appraisals of Diamond's property. 

The first appraisal was obtained before Diamond, in reliance on

the City's definite plan to acquire its property, began to

relocate its asphalt plant to ensure it would be operational for

the next year's construction season.  The City's second appraisal

was obtained on the date the condemnation complaint was filed and

after Diamond had traded in and moved certain components of its

plant.  The first appraisal listed the property's highest best

use as an asphalt plant and the second appraisal listed it as

vacant industrial.  Prior to the jury trial to determine just

compensation for the taking, the trial court granted Diamond's

motion in limine to exclude evidence of the City's second ap praisal and limit the evidence of highest and best use to an asphalt plant.  The jury awarded Diamond $1,558,640 as compensa

tion for the taking.  The City appeals, contending the trial

court abused its discretion in granting Diamond's motion in limine.  We affirm.

I. BACKGROUND

	In September 1997, Charles Scholz, Quincy's mayor,

contacted Charles Miller, Diamond's president, to discuss the

City's plan to extend 18th Street through Diamond's asphalt

plant.  Over the next two years, Miller communicated with various

City officials concerning the City's acquisition of his property

and his concerns with the timing of the taking.  Miller was

concerned because he would be required to move the asphalt plant

during the winter months in order for Diamond to honor its

contractual obligations during the regular construction season,

which usually begins in early spring. 

	On October 21, 1999, Miller wrote to the City's Sspecial

Aassistant Ccorporation Ccounsel, Hubert Staff, with the following

concerns and requests: (1) Miller had not heard from the City in

several months concerning the acquisition of his property; (2) if

the City planned to go forward with the taking, Diamond would be

unable to continue operations at that location; (3) Diamond was

financially committed to making capital improvements in its

business in order for it to honor its contractual obligations for

the next spring's construction season; (4) Miller requested the

City's official position regarding the acquisition of his prop

erty; and (5) time was of the essence and Diamond would begin

capital improvements at the existing plant if the City did not

respond by November 20, 1999.

	In an October 25, 1999, response, Staff told Miller the

City intended to go forward with the acquisition of his property

sometime prior to the 2000 construction season.  Further, Staff

told Miller he expected the city council to adopt a resolution

within two weeks authorizing him to enter into negotiations with

Diamond for the acquisition of its property.

	On November 5, 1999, Staff again wrote to Miller,

advising him the City expected to adopt a resolution on Monday,

November 8, 1999, authorizing him to make an offer on the Diamond

property.  The city council passed the resolution and on November

9, Scholz forwarded a letter to Miller acknowledging the City

planned to acquire a portion of the Diamond property through

eminent domain.

	On December 13, 1999, Miller received a letter from

Staff offering Diamond $462,000 for fee title to 1.88 acres of

the 10-acre tract, damages to the remainder of the property, and

compensation for construction easements.  Miller was advised the

amount was based on an appraisal prepared by Wayne Briggs on

November 9, 1999.  The appraisal concluded the value of the

entire tract of property before the taking was $1,300,000. 

Briggs' appraisal described the property as special use improved

with an asphalt plant, which was a fixture and, thus, part of the

realty and could not be moved.  Briggs stated the property's

current use as an asphalt operation was consistent with the

highest and best use of the property.  Finally, Briggs stated due

to the nature of the taking, which would divide the Diamond

property into two separate parcels, the remainder of the property

after the taking would be unsuitable for use as an asphalt plant.

	Prior to and immediately after receiving this letter,

Miller took initial steps to relocate Diamond in an effort to

ensure Diamond would be able to honor its future contractual

obligations.  Part of Miller's relocation plans included trading

in and selling some of the components from the old asphalt plant

for a new asphalt plant to be constructed at a new location. 

Miller talked to asphalt plant manufacturers and learned it would

take approximately one year for the delivery and set up of a new

plant.  Accordingly, Miller began the process of ordering the

component parts of a new plant in May 1999.  

	After the City's December 13, 1999, offer, Miller

communicated for several months with City officials concerning

whether the City could reimburse Diamond for various costs, such

as moving expenses, and whether the City could provide a low-

interest loan to Diamond.  The City offered virtually no assis

tance to Diamond, other than the compensation in its original

offer, so Miller officially informed the City on April 5, 2000,

Diamond would not accept the offer of $462,000.

	On April 6, 2000, the City filed a condemnation action

to acquire 1.886 acres and a construction easement on 1.04 acres

of Diamond's 10-acre tract.  On August 1, 2000, the City filed a

motion for immediate vesting of title and for temporary ease

ments.  The dispute resulting in this appeal began when the

City's appraiser, Wayne Briggs, sent Diamond a second appraisal

report, in which he opined the highest and best use of Diamond's

property was not as an asphalt plant, as Briggs stated in his first appraisal.  Rather, Briggs' second appraisal listed the

highest and best value as vacant industrial, which greatly reduced the property's value.  Briggs' estimated value of the

entire tract as of April 6, 2000, the date the City filed its

petition for condemnation, was $220,000, and the value of the

taking was $111,000.  

	The record shows as of the date of Briggs' second

appraisal, the following parts of Diamond's asphalt plant re

mained on the property: oil tanks, large scales, buildings,

heating systems, a bag house, shuttle buggy, concrete footings

for the plant, specialized electric and gas utility services, a

masonry building, a crushed stone base, laboratory trailers,

concrete ramps, loading docks, and various stockpiles of aggre

gate and stone used in the production of asphalt.  Briggs admit

ted for the second appraisal, he merely drove by the property and

did not physically inspect the premises.  He further stated he

did not talk to Miller to ascertain whether Diamond was using the

plant for any aspects of its asphalt production.  Finally, Briggs

admitted he was not an expert on asphalt plants, he had never

appraised an asphalt plant before his November 9, 1999, appraisal

of the Diamond plant, and he did not consult with any leaders in

the industry to aid in his appraisal and determination that an

asphalt plant no longer existed on the property.

	After Diamond received Brigg's' second appraisal, it

filed a traverse and motion to dismiss, citing the strikingly

different appraisal values and alleging, in pertinent part, the

City was prohibited from acquiring the property by eminent domain

as it had acted in bad faith.  The trial court stopped short of

finding the City acted in bad faith, but it did state its disap

proval of the City's use of the second appraisal in the condemna tion proceedings.  The trial court did not make a final ruling on

the issue at that time, but it stated fundamental fairness

dictated the highest and best use of Diamond's property would

likely be limited to that of an asphalt plant as in the City's

first appraisal and before Diamond began its relocation process.

	On November 9, 2000, prior to the jury trial to deter

mine just compensation for the taking, Diamond presented a motion

in limine seeking to strike Briggs' second appraisal and limit appraisal valuation testimony to the valuation of the property as

an asphalt plant facility.  The trial court, stating its concerns

for the preservation of fundamental fairness and due process,

granted Diamond's motion and stated:

		"The mere fact that there have been

items removed, whether it is 15 of 20 or 5 of

20 does not eliminate it from being desig

nated as an asphalt plant.  That definition

in and of itself, if you remove tires from a

car or an engine from a car doesn't make it,

fail to make it a car any longer.

	***

		***  [T]his [c]ourt stands by its previ

ous opinion that to permit Mr. Briggs to go

out there on April the 6th and indicate be

fore a jury, who is to determine not only the

highest and best use, but first and foremost

an eminent domain action what is just compen

sation, and to permit that in this [c]ourt's

mind would not go with what I would deem to be fundamental fairness and due process.

	***

		I do not find that the City lured the

[d]efendant, but I also don't think that they

can benefit in terms of having this property

defined as something other than an asphalt

plant ***."

	On November 13, 2000, the case proceeded to trial. In

addition to the valuation evidence of the City's second ap

praisal, Diamond's appraiser, Dale Kleszynski, testified the

value of the entire tract of property before the taking was

$1,985,000.  He stated as of April 6, 2000, the highest and best

use of the property was as an asphalt plant, and the damages to

the property after the taking would be $1,847,200.  Kleszynski

valued the temporary construction easement at $7,800 and arrived

at a total compensation for the taking of $1,892,800.  The jury

rendered a verdict in favor of Diamond, in the amount of

$1,558,640.  

	The City filed a posttrial motion, alleging the trial

court improperly granted Diamond's motion in limine.  The trial court denied the City's posttrial motion on March 19, 2001, and

the City appeals, contending the trial court abused its discre

tion in granting Diamond's motion in limine precluding the admission of Briggs' second appraisal report.  

II. ANALYSIS

	The City contends the trial court abused its discretion

in granting Diamond's motion in limine for four reasons: (1) the value of the land taken and damages to the remainder must be determined as of the date the condemnation complaint is filed;

(2) highest and best use of the property is a question of fact to

be determined by the jury; (3) fundamental fairness cannot change

highest and best use from a matter of fact to a matter of law;

and (4) even if fundamental fairness trumps the date of valuation

and highest and best use being a matter of fact, there was no

lack of fundamental fairness in this case.  

	A trial court has broad discretion to grant or deny a

motion in limine as part of its inherent power to admit or exclude evidence.  As such, we will not reverse the trial court's

decision to grant or deny a motion in limine absent a clear abuse of discretion.  People v. Williams, 188 Ill. 2d 365, 369, 721 N.E.2d 539, 542 (1999).

	The United States and Illinois cConstitutions provide

private property shall not be taken without payment of just

compensation.  U.S. Const., amend. V; Ill. Const. 1970, art. I,

§15.  In eminent domain cases, the only question for the jury to

decide is the just compensation owed to the owner of the property

to be condemned.  City of Chicago v. Anthony, 136 Ill. 2d 169, 174, 554 N.E.2d 1381, 1383 (1990), citing Sanitary District of Rockford v. Johnson, 343 Ill. 11, 16, 174 N.E. 862, 864 (1931).  "Just compensation" is defined as the fair cash market value of prop

erty at its highest as best use on the date of filing the com

plaint to condemn.  735 ILCS 5/7-121 (West 2000).  The highest

and best use may be the property's current use or any capacity

for future use which may be anticipated with reasonable cer

tainty.  Anthony, 136 Ill. 2d at 174-75, 554 N.E.2d at 1383-84.    	When there is a difference of opinion as to highest and best use, the issue is generally a question of fact left to the

jury.  Forest Preserve District. of Cook County v. Lehmann Estate, Inc., 388 Ill. 416, 426-27, 58 N.E.2d 538, 543 (1944).  However, the supreme

court in Forest Preserve leaves open the possibility a witness' testimony as to highest and best use may be so improbable it should be excluded from the jury.  Forest Preserve, 388 Ill. at 426-27, 58 N.E.2d at 543.  In Forest Preserve, the parties presented conflicting evidence as to whether the property's

highest and best use was residential or industrial.  The property

owner argued to exclude the condemnor's valuation testimony which

categorized the property's highest and best use as residential. 

The court examined the qualifications of the expert witnesses and

their testimony and determined there was "no merit to the conten

tion that [the condemnor's] evidence that the highest and best

use of the property was for residential purposes was so inher

ently improbable that it should have been excluded from the

jury."  Forest Preserve, 388 Ill. at 426, 58 N.E.2d at 543. 

	The City urges us to find Briggs' second appraisal, as

of the date of the filing of the complaint on April 6, 2000, is

the proper valuation of the property and, therefore, should have

been presented to the jury.  Diamond does not contest the date of

the filing of the condemnation complaint controls the valuation

of its property.  Diamond's argument rests on the premise that

Briggs' second appraisal, which categorizes the highest and best

use of the property as vacant industrial on April 6, 2000, lacked

a proper evidentiary foundation and, given the unique facts of

this case, the trial court properly barred its introduction as

evidence under principles of fundamental fairness.  We agree with Diamond.

	The basis of the trial court's evidentiary ruling to

exclude Brigg's testimony of the property's highest and best use

as anything other than an asphalt plant on April 6, 2000, was concern for fundamental fairness to Diamond and the rationale of

the second appraisal.  In arriving at its decision, the trial

court considered the testimony of both parties' appraisers and

heard evidence as to the specific components of the asphalt plant

that were present on April 6 and those that were traded or sold

prior to April 6 as a result of Diamond's forced relocation.  The

trial judge also heard evidence Briggs was not an expert in

asphalt plants and he had never appraised an asphalt plant before

his November 9, 1999, appraisal of the Diamond plant.  Further,

prior to his second appraisal, Briggs did not talk to Miller to

determine the extent of Diamond's operations at the plant as of

April 6, nor did he contact experts in the asphalt industry to

determine whether the property was viable as an asphalt plant if

only a few of the components were missing.  The trial court also

stated Miller had detrimentally relied on the City's proposed

taking of his property when he took steps to relocate his asphalt

plant, and the City could not later attempt to take advantage of

Miller's relocation by presenting evidence to the jury the

highest and best value of the property was vacant industrial due

to the removal of a few components of the plant. 

	The court further noted the unique facts of the case: 

the City and Miller had been discussing the condemnation for a

few years and Miller was in a business position where, after the

City informed him of its definite plans to acquire his property prior to the 2000 construction season, Miller was required to act within a certain time frame to move and establish a new plant to

ensure his business' survival.  Based on the appraisal testimony

and the unique facts of the case, the court determined the jury should hear only evidence of the property's highest and best use

as an asphalt plant.  

	On appeal, the City argues "[d]efendant has cited no

case law in any of its motions, memorandums[,] or arguments to

support the position that fundamental fairness requires the

property be valued as an asphalt plant."  The City further argues

the question of highest and best use is always a question of fact

for the jury and fundamental fairness cannot change the issue to

a matter of law.  We need not address the doctrine of fundamental fairness as applied to the specific factual scenario in this

case.  As expressed above in our discussion of the Forest Pre serve case, we conclude the issue of highest and best value may be a question of law for the trial judge when the evidence is so

inherently improbable it should be excluded from the jury.  

	Whether the issue in this case is fundamental fairness

to Diamond or the inherent improbability of the evidence of

highest and best use as stated in Briggs' second appraisal, the

trial judge correctly ruled to exclude the evidence of Briggs'

second appraisal.  We note each eminent domain case is unique and

there is no "blanket rule" of eminent domain law to apply in

every situation.  Anthony, 136 Ill. 2d at 187, 554 N.E.2d at 1389.  Further, in each case, the "'limits of the evidence

necessarily rest largely in the discretion of the trial judge.'"  

Anthony, 136 Ill. 2d at 187, 554 N.E.2d at 1389 ciquoting Forest Preserve Dist. of Cod County v. WChicago & Western Indiana R.R. Co. v. Heindenreiching, 30254 Ill. 194231, 196238, 98137 N.E. 567139, 570140 (19212).  

	Given the unique facts of this case, we find the trial

judge's concerns were well-founded and he acted well within his

discretion to exclude evidence of the City's second appraisal. 

Further, we find his decision did not contradict the well-settled

rules of eminent domain law, i.e., (1) the date of valuation is to be determined on the date the condemnation complaint is filed

(Department of Transportation v. Chicago Title & Trust Co., 303 Ill. App. 3d 484, 496, 707 N.E.2d 637, 645-46 (1999)) and (2)

differences in opinion as to highest and best use are generally

questions of fact for the jury (see Central Illinois Public Service Co. v. Westervelt, 67 Ill. 2d 207, 212, 367 N.E.2d 661, 663 (1977)).  Under the facts of this case, we conclude on April

6, 2000, there was no legitimate question whether the highest and best use of Diamond's property was anything other than an asphalt

plant.  Therefore, using the parties' varying opinions as to

property's highest and best value as an asphalt plant on April 6,

2000, just compensation was properly determined as of the date

the complaint was filed and there was no question of fact on that

issue to present to the jury.

III. CONCLUSION

	We affirm the trial court's granting of Diamond's

motion in limine precluding the admission of Briggs' second appraisal report.  

	Affirmed.

	McCULLOUGH, P.J., and STEIGMANN, J., concur.