## I L L I N O I S 

## O F F I C I A L 

## R E P O R T S Suprem e Court

Forest Preserve

District v. First

National B ank of Fran klin Park , 2011 IL 110759

Caption in S upreme Court: THE FOREST PRES ERVE DI STRI CT OF Du PAGE CO UNTY, Appellant, v. FI RST NATI ONAL BA NK OF FRANK

L I N PARK et al.
, Appellee s (The State of I llinois ex rel. L isa Madi gan, I nterve norAppellant).

Docke t Nos. 110759, 110760 cons.

Filed Rehea ring denied Dec ember 1, 2011
J anuar y 23, 2012

Held ( Note : Thi s syl lab us

con st it ute s no par t o

f the opi nio n of the cour t but has bee n pre

par ed by the Repo rt e r of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) A condemnation action which, pursuant to statute, evaluated the proper ty in 2007 as of the complaint’s 1999 filing date was rema nded to deter

mine if there had been a value incr ease , and if so, for a jury trial as to current fair ma rket va lue–fifth ame ndment.

Dec ision Under Review Appeal from the Appellate Court for the Second District; hear d in that
court on appea l from the Circu i t C o u rt of Du Pag e County
, the Hon. Stephen J . Culli ton, J udg e, pre siding.

J udg ment Appellate c ourt judg ment aff irmed; ca use re manded.Counsel on

Appea l Scott M. Day and Rache l K. Robert, of Day & Robert, of Na p er v i lle (Robert G. B lack, of

counsel), f

or appe llant.

L i s a Madig an, Attorney Gene ral, of Springf ield (Jane Elinor Notz, Deputy Solicitor Gene ral, and Richard S. Huszag h, Assistant Attorney Gene ral, of Chica g o, of counse l), for inter venor- appellant.

J ames M. Wagne r, Mary Eliz abeth Damitio and Patrick J

. Kelly
, of Helm & Wag ner, of

Nape rville, for a

ppellees.

J ustices J USTI CE THOMAS delivere d the judg ment of the c ourt, with opinion.
Chief J ustice Kilbride and J ustices Fr eema n, Gar man, Kar meier, Bur

ke, and The is concurr ed in the judg ment and opinion.

OP INION

¶ 1 Plaintiff, the Fo re s t P re s er v e Di s t ri ct o f Du P age County (the District), filed a condemnation action ag ainst defe ndants on Dec ember 21, 1999. At that time, section 7-121 of the Eminent Domain Act provided that the date of filing th e compl aint was to be considere d the valuation date for purposes of deter mining just compensa

tion. See 735 I L CS 5/7-121 (West 1998). At a trial held Dec ember 12, 2007, near ly eig ht y ear s afte r the case was filed, a jury deter

mined that the fair marke t value of the proper ty on Dec ember 21, 1999, was $10.725 milli on. The circ uit court enter ed judgme nt on the jury ’s awa rd for that amount. The appellate court aff

irmed in part, but vaca

ted the jury ’s verdic t as to the value of the proper ty and rema nded for further proce eding s to deter mine if the cu rr en t value of the proper ty is materia ll y differ ent from the amount of the jury ’s verdic t so that it could be said that the verdic t does not ref

lect just compen sation as of the actua l date of taking

. 401 I ll. App. 3d 966, 1005-06. ¶ 2 Be fo re t h i s court, the parties raise the following questions: (1) whether t h e d at e o f “taking ” is considere d the date of valuation listed by statute or instead the date that a plaintiff is g iven title and the rig ht to possess the proper t y ; (2) whether the fifth amendment as interpre ted by t h e Un ited States Supreme Court in Kirby Forest Industries, Inc. v. United States
, 467 U.S. 1 (1984), require s a rema nd under the circ umstances of the prese nt case to deter mine if the value of the proper ty has materia lly chang ed despite the traditional date- offiling rule of valuation applied in I llinois ; (3) whether defe ndants forf eited their rig ht to argue that they wer e denied just c ompensation wher e they did not file a “spe edy trial demand” at the outset of the litigation and a signific ant delay subsequently ensued betwee n the time of the filing of the complaint and the condemnation trial; (4) whether defe ndants forf eited their rig ht to claim a lack of just compensation in relianc e upon Kirby by failing to argue prior to

-2-trial that the jury should be instructed to base its assessment on a more curr ent d at e of

valuation; (5) whether the appellate court err ed in ruling that the District could abandon the condemnation case on rema nd if it chose; and (6) whether the District failed to neg otiate in
g ood faith prior to filing its condemnation complaint.

¶ 3 BA CKGROUND ¶ 4 The fac ts in this case wer e thoroug hly set forth by the appellate court i n i t s o p i n i o n below. We summar ize only those fac ts nece ssary

for the r esolution of the issues befor e us. I n 1978, Nape r Venture
, in which defe ndant Robert Krilich held a dominant interest, applied for the annex ation into Nape rville of a 456-ac re planned unit development (PUD) to be called Country L akes. The PUD was approve d as a specia l u s e i n co n nection with the annexation ag ree ment. The PUD contained an exis ting 150-ac re public g olf course

. Around the g olf course wer e s even are as that wer e to be develope d as residential are as of vary ing density

. Are a 1 was alre ady develope d at the time of the annexation ag ree ment. By Dec ember 1999, are as 2 throug h 5 had been develope d or wer e in the proce ss of being develope d. Are as 6 and 7, which consisted of approx imately 54 total acr es, had not been developed, a nd the Summi t Deve lopment Corporati o n h ad a contra ct pending to purcha se these are as (the Summi t parc el) for

development. ¶ 5 I n November 1999, the District decide d to acquir e the 204 acr es compr i s i n g t h e go l f

course and the Su

mm it parc el. On November 23, 1999, the District’s board of commissioners
approve d an ordinanc e authorizing the District to neg otiate acquisition of the proper ty

. The District then sent letters to the two trusts it deter mined owned the prop er t y , o ff er ing the
trustees a total of $9.27 milli on and g iving them 10 business day s to respond befor e pursuing condemnation proce ed ings. After a meeting betwee n the two sides, the owner s, including Krilich, who was the majority benef iciary under both trusts, reje cted the District’s offe r, but did not make a c ounteroff er. ¶ 6 The District’s boa rd of commissi oners then met on Dec ember 7, 1999, and conside red the neg otiations for the proper ty

. Not i n g t hat neither side had made any further offe rs or counter offe rs since the offer l et ters on November 23, 1999, the board of commissioners adopted an ordinanc e finding an inability to ag ree , revoking authority to n egoti ate further, and authorizing condemnation of the proper ty

. The District sent letters to the two trustees and Summi t Development Corpor ation, enclosing a copy of the De cembe r 7 ordinanc e. ¶ 7 On December 21, 1999, the Di s t ri ct filed a complaint to condemn the proper ty

. At the time the complaint was filed, there was a dispute over owner ship of the proper ty and separ ate litigation was being conducte d to deter mine owner ship. Procee dings in this case wer e stay ed until October 2001 when the owner ship suit was resolved. A further delay ensued when Krilich and Edwar d Whit e disputed among themselves about who had a rig ht to control the defe nse in the conde mnation action. That dispute was finally resolved in K rilich’s favor

in November

2004. ¶ 8 Once the issues of owner ship and control of the litigation wer e settled, defe ndants filed

a second amende d trave rse and a motion to dismiss on Marc h 28, 2005, arguing that the trial
court lacke d jurisdiction and that the condemnation co m p l aint should be dismiss ed for

-3-sever al rea sons. The parties conducte d discovery on the issues raised in the travers e. I n

September 2006, the District filed sever al motions for partial summary judgme nt relative to the second amende d trave rse. One of those motions conce rned whether the District had
eng ag ed in g o od-fa ith neg otiations prior to the filing of the condemnation complaint. On Dec ember 4, 2006, the trial court g rante d the Distr i ct ’s m otions for partial summary judgme nt, and on J anuar

y 9
, 2 007, the court denied defe ndant’s second amende d trave rse and motion to di smiss. ¶ 9 The case then proce eded throug h case manag ement and discovery

. Severa l months prior
to trial, on Au gu s t 3, 2007, defe ndants filed a motion asking the trial court to schedule a posttrial evidentiary

hear ing unde r Kirby Forest Industries, Inc. v . United States , 467 U.S. 1 (1984). The motion alleg ed that the are a in which the proper ty is located had substantially incre ased in value in the period that had elapse d from the date the condemnation complaint

was filed in 1999. In order to aff ord defe ndant s t h ei r constitutional rig ht to just
compensation, a posttrial hear ing under Kirby would be require d, they argued, to deter mine whether the value of t he subj ect property had materially chang ed from 1999 until the t ime that t h e amount of t he condemnation awa rd i s eventua lly place d on deposit by the Dis trict sometime after

trial. ¶ 10 T h e t ri al co urt hear d oral argument on the Kirby motion on November 13, 2 0 0 7

. Def endants’ counsel arg ued that I llinois has a “ sy stem in place tha t does not allow for just
compensation.” Counsel explained that the statute require s valuation as of the date of filing, but the constitution provides that just compensation be measure d as of the date of the taking
, which is the date that the g overnme nt chooses to deposit the amount of the jur y aw ar d. Counsel arg

ued that Kirby provides a reme dy for the problem by allowing for a posttrial hear ing to modify

the value a

war ded if a subst antial delay has caused a materia l chang e in the value of

the land. ¶ 11 At t h e conclusion of the hear ing, the trial court denied the motion for a Kirby hear ing without taking it under advisement. Fr om the court’s comments and questioning of counsel, it is clea r that the court believed that Kirby should not be applied to I llinois law wher e there

was no wr ong ful delay

cause d by

the g overnme ntal entity

seekingcondemnation. ¶ 12 The case was there afte r tried by a jury on Dec ember 12, 2007. The jury deter mined that the fair marke t value of the proper ty on December 21, 1999 (the date the condemnation complaint was filed), was $10.725 milli on. On December 19, 2007, th e t ri al court entered judgme nt on the j ury awa rd. However, t h e t ri al court did not g rant the District the right to take title and possession of the prope rty . Instead, it only allowed the D istrict to deposit the
amount o f the jury awa

rd with the Du Pag e County trea surer in order to toll the statutory interest due on the awa

rd t hat would acc rue from the date of t he jury awa rd t o the date the
pay ment was place d on deposit. See 735 I L CS 5/7-108 (West 1998). Noting that “def endants intend to file var ious post-trial and appe llate court pleading s, inclusive of a motion to stay the judgme nt pending appea l,” it found that the District could not take immediate possession of the prope rty

and that the ve sting of title would have to awa it a future order of the court. On December 20, 200 7
, the di strict paid t he judgment and interest to the county trea surer , and those funds ha

ve re mained on deposit ea rninginterest to def

endants since that date.

-4-¶ 13 Def endants subseque ntly

filed a posttrial motion, which ag ain ra ised the constitutional
argument that the j ust compensation clause of t he fifth amendment as interpre ted i n Kirby require d the trial court to hold a hear ing to deter mine the appropr iate adjustment to the jury verdic t to accommodate for the incre ase in value from the valuation date of Dec ember 19, 1999, to the date of the deposit of the condemnation awa rd on Dec ember 20, 2007. I n support of their motion, def

endants attache d as an exhibi t a n appra isal stating that, as of Dec ember 20, 2007, the proper

ty was worth a minimum of $25.5 milli on. T he trial court denied defe ndants’ posttrial motion on May 22, 2008. Howeve r, nothing in the rec ord indicates that the trial court ever ruled that the District could take title and possession to the proper ty , nor did the court resc ind its previous order stating that transfe r of title and possession would have to wait for a

future or der of

the cour t. ¶ 14 Def

endants timely appea led to the ap p el l at e co u rt , arguing that the trial court err ed in denying their posttrial motion for a Kirby hear ing. They also argued, inter alia
, that the trial

cou rt err ed in g ranting the Dis trict summary judgme nt on the i ssue of whether the Dis trict
eng ag ed in g ood-fa ith neg otiations prior to filing the c ondemnation complaint. ¶ 15 The appellate court noted that defe ndants’ appea l of the Kirby issue raised the following additional issues:
“F irst, wh at m ea s ure of compensation for the taking of proper ty constitutes ‘just
compensation’ under the fifth amendment? Second, wer e the defe ndants denied just
compensation in this c ase? Third, if the defe ndants wer e denied just c ompensation,

was this the result of their own choice s or actions such that the denial does not offe nd the constitution? I n addition, we asked the parties to submit supplemental briefs on two other issues: ar e the r ece nt amendments to the Ac t applicable in this case , and, if they are not, is the old version of the statute constitutional as ap p l i ed ? ” 401 I ll. App. 3d at 980-81.
After the appellate court o rd er ed supplemental briefing
, defe ndants serve d notice on the Attorney Gene ral that they wer e challeng ing the constitutionalit y of section 7-121 of the Act

as applied. The Attorney Gene ral was then g rante d leave to i n t er v en e i n the appea l and there afte r filed a

brief a ddressingthe supplemental issues. ¶ 16 The appellate court’s decision first addre ssed the issue of g ood-fa ith neg otiatio n s and conclude d that the trial court did not err in g ranting summary judgme nt in the District’s favor

on that issue. 401 I ll. App. 3d at 976. With respect to t he Kirby issue, the court held t hat a hear ing was require d to deter mine whether “application of section 7-121 did not provide just
compensation in this case .” See 401 I ll. App. 3d at 1004. The appellate court vacated th e jury ’s verdic t a s to the value of the proper ty , subject to a possible reinstateme nt by the trial
court following a hear ing on just compensation on rema nd. 401 I ll. App. 3d at 1006. I t found that the District rema ined fre e to abandon t h e condemnation proce eding and withdraw its deposit beca

use the date of takinghad not y et occurre d. 401 I ll. App. 3d at 1005. I t further found that in setti n g t h e valuation date to be used in deter mining just compensation on

rema nd, the date of

any new tria l, rather

than the Decembe r 20, 2007, date of deposit, will

more c losely

approximate the date of

taking . 401 I ll. App. 3d at 1005. ¶ 17 I n resolving the Kirby issue and those related to it, the appellate court beg an its analy sis

-5-by discussing the development of the I llinois rule that the date o f t h e filing of the

condemnation complaint be used for measuring just compensation. The origins of the rule

can b e trac ed to South Park Commissioners v. Dunlevy
, 91 I ll. 49, 53 (1878), and it was “firmly established” by the time of this court’s 1907 decision in Sanitary District of Chicago

v. Chapin
, 226 I ll. 499, 503 (1907). This court last addre ssed the rule in Trustees of Schools of Townshi

p No. 37 v. First National Bank of Blue Isl and
, 49 I ll. 2d 408, 411 (1971), one y ear befor e the r

ule was c odified in 1972 (I ll. Rev. St at. 1973, ch. 47, ¶ 9.7). ¶ 18 The appellate court then noted that Blue Isl a n d re l i ed upon Chapin and W inkelman v

. City of Chicago
, 213 I ll. 360, 364 (1904), as support for the rule that the proper ty taken must be valued as of the date of filing unless t h e go v er nment is at fault in causing substantial delay
, during which time the value of the land rises substantially

. I t is only when the
g overnme nt is wholly at fault that the landowner could obtain relief by either s eeking damag es or moving to dismiss the suit so that the g overnme nt would have to ref ile if it still wanted the proper

ty , there by establishing a new valuation date. See 401 I ll. App. 3d at 984- 8 5 (citing Blue Island
, 49 I ll. 2d at 411). The appellate court also noted that Blue Is l a n d
sug g ested that the landowner might have been able to obtain just compensation that included
t h e four y ear s of delay in the case if he had made a reque st for a “spee dy trial.” But t h e appellate court noted that it was unclea r what the phrase “spee dy trial” reque st ref err ed to in the context of a conde mnation case . 401 I ll. App. 3d at 996. ¶ 19 The appellate court then found that the fifth amendment, as interpre ted in Kirby
, require d modification of the “fa

ult-based exception” set forth in Blue Island

. See 401 I ll. App. 3d at 987. I n addre ssing when a taking occur s, Kirby held t hat “because the fe d eral g overnme nt reta ins its rig ht to decide not to acquir e land even af t er a trial setting the amount of just
compensation, the ‘date of taking ’ is the dat e on which the g overnme nt actua lly pay s the

owner and takes t i t l e t o t h e land.” 401 I ll. App. 3d at 986 (citing Kirby
, 467 U.S. at 12). Kirby further held that “ ‘ [h] oweve r reasonable it may be to designate the date of trial as the date ofvaluation, if the result of that approach is to provide the owner substantial ly less than the fair marke t value of his property on the date the [governme nt] tenders payme nt, it violates the Fifth Amendm ent .’ ” (Emphasis added.) 401 I ll. App. 3d at 987 (quoting Kirby
, 467 U.S. at 17). ¶ 20 The a

ppellate c ourt conc luded that under I llinois law a taking a lso does not occur until the date the condemning authority tender s pay m en t fo r t h e land and gains the rig ht to title and possession. See 401 I ll. App. 3d at 990. I t then reje cted the claim t h at K i r b y d o es not apply to I llinois condemna tion law. I t found t hat t he fifth amendment t o t h e United S tates Constitution applies to the states throug h the due proce ss clause of the fourtee nth amendment and require s not only that the proce ss for setting just compensation aff ord the landowner due
proce ss, but also that the result of the proce ss actua lly y ield just compensation. 401 I ll. App. 3d at 988-89 (citing Chicago, Burlington & Quincy R.R. Co. v. Chicago
, 166 U.S. 226, 241 (1897))

. ¶ 21 The appellate court then found that the reme dies provided by Blue Island for corr ecting for long delay s wer e “not sufficie ntly ‘[reasona ble,] cer tain and adequa

te’ ” under the United States Supreme Court’s decision in W illiamson C ounty Regional Planning Comm’n v. Hamilton Bank of Johnson C ity
, 473 U.S. 172, 194 (1985), to serve as a viable alternative

-6-method for seeking just compensation. 401 I ll. App. 3d at 997. Finally
, it noted that equitable

considerations may play a part in setting just compensa tion. 401 I ll. App. 3d at 997. But beca use there was no indication that defe ndants eng ag ed in any intentional or deliberate dilatory conduct or frivolous leg al tactics, the delay in this case due to defe ndants mounting

a vigor ous defe nse could not be a basis to d en y them just compensa tion, espec ially wher e such “a ‘sanc tion’ *** in this case , might be equal to more than half of the curr ent value of their prope rty .” 401 I ll. App. 3d at 998. ¶ 22 Both the District and the Attorney Gene ral filed petitions for leave to appea l to this c ourt, raising sever al issues. This court allowe d both petitions and consolidated them for r eview. Additionally , defe ndants raise two arguments in their cross-a ppeal.

¶ 23 ANAL YSI S ¶ 24 T h e i s s u es p re s en ted in this appea l raise purely leg al questions without any fac tual disputes. We will there fore conduct de novo revie w of the issues prese nted. See, e.g. , People v. Brown , 225 I ll. 2d 188, 198 (2007).

¶ 25 I . No For feiture or I nvited Error ¶ 26 We first addre ss the Attorney Gene ral’s arg ument that defe ndants forf eited their rig ht to have just compensation valued using any point in time other than the date of the filing of the condemnation action. I n particula r, the Attorney Gene ral argues that defe ndants invited err or by (1) asser

ting to the circ uit court that the valuation date should be the date of the filing of the condemnation action in acc ordanc e with section 7-121 of the Act and (2) ag ree ing to jury instructions based on that section, and (3) only arg uing f or the fir st tim e on appe al that the
statute was unc onstitut ional as applied. ¶ 27 I n support of her argum en t , t h e At t o rn ey Ge n er al re lies on the following g ener al principles. A par t y m ay n ot urg e a trial court to follow a course of action, and then, on appea l, be hear d to argue that doing so constituted reve rsible err or. In re Detention of Swope
, 213 I ll. 2d 210, 217-18 (2004). A party cannot seek reve rsal of a judgme nt enter ed on a jury verdic t based on an argument that the instruction was improper wher e that party tender ed or ag ree d to the i nstruction. J.L. Simmons Co. ex rel. Hartford Insurance Group v. Firestone T i r e & Rubber Co.
, 108 I ll. 2d 106, 116 (1985). A party ’s failure to challen ge t h e constitutionalit y of a statute in the circ uit court normally forf eits that challeng e on appea l in

a civil case

. See In re Liquidat ions of Reserv e Insurance Co.
, 122 I ll. 2d 555, 567-68 (1988). ¶ 28 The Attorney Gene ral acknow ledg es, howeve r, that we may overlook g ener al forf eiture principles in a civil case and consider an issue not raised below if the issue is one of law, is fully briefe d and arg ued by the parties, and the public interest favors consider ing the issue

now. See Unzicke r v. Kraft Food Ingredients Corp.
, 203 I ll. 2d 64, 73 (2002). Additionally
, we may also consider an issue of law that was not decide d by the trial court if it was decide d b y t h e ap pellate court. In re Marriage of Rodriguez
, 131 I ll. 2d 273, 279 (1989). The doctrines of forf

eiture and waiver
, howeve r, should not be ignor ed if it is clea r that the party claiming forf

eiture would have been able to ref ute or overc ome the arguments if it had been
g iven the opportunity

to do so in the trial court. Id. at 279.

-7-¶ 29 Apply ing the above- mentioned prec epts to the ci rc u m s t an ce s h er e, we fi n d t h at

defe ndants did not forf

eit their argument, but that even if they did, this court would

never theless choose to consider it. First, it does not appea r that any err or was actua lly caused by defe ndants’ actions. Def endants corr ectly identified the constitutional rig ht at stake some four months befor e the jury trial on valuation in their motion seeking a Kirby hear ing. As the appellate court pointed out, defe ndants argued in that motion that the just-compensation
g uara ntee of the fifth amendment applied to I llinois condemnation cases, a nd under Kirby
, just compensation r equire d that the owner rec eive what the proper ty was worth on the date the g overnme nt tender ed pay ment. Def

endants asser

ted that the value of thei r land had incre ased since the date of valuation in this case , Dec ember 19, 1999. The motion analy zed Kirby in detail, noted that I llinois law (espe cially
, section 7-121) require d that the date of filing be considere d the valuation date, and reque sted a posttrial hear ing to deter mine if the value of t he proper

ty had “mater ially chang ed” afte r such a long delay

. I n support of their
reque st, defe ndants also cited rec ent amendments to the Act, which allow for a differ ent date of valuation for case s filed afte r its eff ective date of J anuar

y 1, 2007. See 735 I L CS 30/10-5- 60 (West 2008) (“[I ]f t h e t ri al commence s more than 2 y ear s afte r the date of filing the complaint to condemn, the court may , in the interest of justice and equity
, decla

re a valuation date no sooner than the date of filing the complaint to condemn and no later than the date of

commence ment of the trial ***.”); 735 I L CS 30/90-5-5 (West 2008) (“This Act applies only
to complaints to condemn that are filed on or afte r its eff ective date.” ); 735 I L CS 30/99-5-5 (West 2008) (ef

fec tive date of

new a ct is J anuar

y 1, 2007). ¶ 30 At the hear ing on the Kirby motion conducte d a month prior to trial, defe ndants arguably raised the constitutionalit y of t h e s tatute as applied when they argued that the I llinois statutory sch em e i n ef

fe ct at the time of the filing of this condemnation action “does not allow for just compensation” beca u s e i t require s valuation as of the date of filing, but the Constit ution r equire s that just compensation be measure d as of the date of taking
, which is the date the amount of the jury awa rd is deposited. To reme dy the situation
, defe ndants looked to the re lief applied in Kirby and asked for a posttrial he aring to de termine whether there had been an incre ase in the value of the land since 1999, and if so, set just
compensation based on the date of the taking

. The one snag in the reme dy reque sted by defe ndants is that I llinois allows for the rig ht to a jury trial in c ondemnation case s. Thus, it would not have been as simple as having the trial court modify the jury ’s awa rd to ref lect just
compensation as of the date of deposit. ¶ 31 We can understand why one might be “a p p al l ed at t h e waste of judicial resour ces inhere nt in the defe ndants’ reque st that the jury be asked to deter mine the 1999 value of the [p] roper ty but that the deter

mination s h o u ld then be set aside and the curr ent value of the [p] roper ty be deter

mined” by the court, and if the value had materia lly incre ased, to order a second jury trial using a curr ent valuation date. 401 I ll. App. 3d at 993. Howeve r, it appea rs from the rec ord t hat defendants’ failure to reque st a differe nt valuation date for the jury to consider or to more prec isely argue the unconstitutionalit y of the statute as applied would not h av e u ltimately kept the trial court from proce eding to a jury trial based on the 19 9 9 valuation date in this ca se. ¶ 32 At the hear ing on defe ndants’ Kirby motion
, t h e District strenuously argued both that

-8-Kirby did not apply in I llinois beca

use it was limited to feder al proc edura l rules g overning eminent domain and that, in any event, Kirby could not be applied to I llinois law wher e there

was no indication that there was any wrong ful delay on the part of the g overnme nt in bring ing the case to trial. The trial court was persua ded by the argument that Kirby could not be applied in any applicatio n wh ere there was no g overnme ntal delay

. I t is elementa ry there fore that even if defe ndants had argued for a jury instruction using a 2007 valuation date based on Kirby or specific ally argued that the statute was unconstitutional as applied in the absenc e of using a 2007 valuation date, it would have made no ultimate differ ence here

. The
court would have denied any such reque st based on its belief that Kirby could not be applied
at all wher e there was no alleg ation that any of the eig ht-y ear delay was cause d by the actions of the District. Under all of the above noted circ umstances–including the fac t that defe ndant raised in the trial court the g ener al constitutional qu es t i o n i n volved here –we find no forf eiture or waiver that would prec lude our consideration of the merits of the Kirby issue, which wa s fully

briefe d and ar g ued in the appe llate cour t and then re solved by

that court.

¶ 33 I I . Application of Kirby ¶ 34 Finding no forf eiture, w e turn now to the issue of whe ther the a ppellate c ourt corr ectly applied Kirby to order a hear ing on rema nd to deter

mine if the proper

ty has materia lly incre ased in value, and if so, to hold another jury trial on valuation. In Kirby
, the g overnme nt filed a condemna

tion complaint on Aug ust 21, 1978, to take timber company land for a fore st prese rve. Trial beg an befor e a commission on Marc h 6, 1979, which was al s o t h e d at e of valuation used for assessing just co m p en s at ion. The commission enter ed a repor t

rec ommending compensation of roug hly $2.3 milli on. Both parties filed objec ti o n s in fede ral district c ourt, and that court enter ed judgme nt on the commission’s repor t. Howeve r, a period of three y ear s and three wee ks elapse d betwee n the date of the trial (the valuation date) and the date of the taking (the date the g overnme nt made pay ment for the land and acquir ed title). ¶ 35 The United States Supreme Court g rante d certiorari in the case to deter mine the date on which a taking occur s and to c onsider whether there was any obliga tion of the g overnme nt to pay interest from the date of t rial to the date of deposit. Kirby , 467 U.S. at 9. The Court beg an by noting that the fifth amendment does not prec lude the g overnme nt from taking land and pay ing for it later. But t he fifth amen d m en t require s that if disbursement of the award is de lay ed, the owner is “ entitled to inter est there on sufficie nt to ensure that he is pla ced in

as g ood a position pecunia rily as he would have occupie d if the pay ment had coincided with the appropr iation.” Kirby
, 467 U.S. at 10-11. Thus, the court found identification of the time of the takingof a tra ct of land c rucia l to the amount of compensa tion to which an owne r is constitutionally

entitled. Id. at 11. ¶ 36 Kirby then noted that Danforth v. United States
, 308 U.S. 271, 284 (1939), had held that unless a taking has occur

red “pre viously in actua lity or by a statutory provision,” a taking in a conde mnation suit t akes pla ce upon the pay ment of t he money awa

rd by the condemnor. Kirby noted that justification for the rule was based on the understanding that the “owne r is protec ted by the rule that title does not p as s u n til compensation has been asce rtained and paid.” (I nterna l quotation marks omitted.) Kirby
, 467 U.S. at 12 (quoting Danforth
, 308 U.S.

-9-at 284-85). Kirby further cited a fede ral rule that permits the g overnme nt “to dismiss a

condemnation suit at any time befor e ‘compe nsation has been deter mined and paid,’ unless the [g]overnment previously has ‘ac quired the t i t le or a lesser interest

... or taken possession.’ ” Kirby
, 467 U.S. at 12 (quoting Fe d. R. Civ. P. 71A(i))

. The Court o b s erve d that the g overnme nt’s ability to abandon the proce eding in this fashion would be difficult to understand if a taking wer e eff ectuated any time prior to tender ing pay ment. See Kirby
, 467 U.S. at 12. Kirby also looked to a fede ral p ro v i s i o n equivalent to our state quick-take
proce dure (see 735 I L CS 5/7-103 (West 1998)) as support for its holding that a taking could not ha ve occ urre d prior to pa

y ment and the g overnme nt’s acquir ing of title a nd the rig ht to
possess the land. The Court observe d that “the option of pere mptorily appropr iating land prior to final judgme nt , t h er eby permitting immediate occupa ncy and improvement of the
proper ty [,] *** would have been superf luous i f, as p eti tioner contends, a taking occur red
upon the filing of the complaint in a [st raig ht-conde mnation] suit.” Kirby
, 467 U.S. at 12-13. Acc ording ly
, Kirby conclude d that the taking of the petitioner’s land occur red on Marc h 26, 1982, the date the awa

rd wa s paid, and ther efor e, petitioner w as not due a ny interest. ¶ 37 Kirby further found that its conclusion did not dispose of the case beca use it still had to deter mine whether the awa

rd itself satisfied the require ments of the fifth amendment. Kirby
, 467 U.S. at 16. The Court ag ree d with the landowner ’s argument that, to the extent that the $2.3 milli on awa

rded by the j ury is less than the value of the land on Ma rch, 26, 1982, the date of the taking
, it has been denied just compensa tion. The g overnme nt had argued in
response that a gene ral rule setting a date of valuation in all case s (like t he rule setting the time of trial as the date of valuation) was nece ssary so the trier of fac t would know the date

on which the value of the land should be assessed. The Court, howeve r, was insistent that the
g overnme nt’s argument did not neg ate the la ndowner ’s constitutional claim:
“The Gover

nment’s argument provides a plausible explanation for the valuation
proce dure used in this case and other case s, but it does not meet [ the l andowne r’ s ] constitutional claim. Howeve r re asonable it may be to desig nate the date of trial a s the date of valuation, if the result of that ap p ro ac h is to provide the owner substantia lly less than the fair marke t value of his proper ty on the date the [gover nment] tender s pay

ment, it violates the Fifth Amendment.” Kirby
, 467 U.S. at 17. ¶ 38 K

i r b y ’s s o l u t i o n to the problem was to allow the landowner on rema nd “to pre sent evidenc e perta ining to chang e in the marke t value of the trac t during the p er iod betwee n those two dates.” Kirby
, 467 U.S. at 19. Finally
, the Court opined that beca use a landowner would be oblige d to bear some litigation cost s in bring ing a claim that there had been a chang e in value, it would have the healthy eff ect of d i ssuading landowner s from lightly deciding to undertake such cla ims. Kirby , 467 U.S. at 19 n.29. ¶ 39 I n apply

ing Kirby to the prese nt case (or even deciding in t h e fi rst instance whether it should be applied to I llinois law), it is nece ssary to know t he point in time a taking occur s in I llinois

. Be cause if a taking in I llinois occur s on the date the condemnation action is filed, then the valuation date would corr espond with the taking date and there would there fore be

no Kirby problem to speak of

.

-10-¶ 40 We find that a taking in I llinois for the purposes of applying Kirby occur s on the date that

the g overnme nt (1) deposits the am o unt of compensa tion that has been asce rtained and

awa rded, and (2) acquir es title an d t h e rig ht to possess the proper ty

. The District relies
p rimarily upon Dunlevy
, Blue Island
, and City of Chicago v. Farw ell
, 286 I ll. 41 5 (1 9 1 8 ),
to support its argument that a “taking ” occur s upon the mere filin g o f the condemnation complaint. We find that the District’s relianc e upon Dunlevy and Blue Island is misplace d, and to the extent that Farwell can be used to support the District’s argument, we find that it

was wr ong ly

decide d and must be over ruled. ¶ 41 Dunlevy mere ly held that the value of land in a condemnation case should be measure d

as of the date of the filing of the petition to condemn. Dunlevy
, 91 I ll. at 53. I t did not hold that a “ t ak i n g ” occurre d upon the fil ing of the petit ion to condemn. I nstead it held j ust the opposite:
“The filing of a petition to condemn proper ty is not a taking of th e s ame. I f the [gover nment] took possession of defe ndant’s proper ty befo re t h e damag es wer e assessed and paid, they wer e trespasse rs ***. *** The defe ndants had the rig ht to the possession a

nd use of their proper

ty afte r the petition wa s filed, the same as befor e, and we perc eive no r eason w hy they should ha ve the use of the proper

ty , and at the

same time be allowed interest upon its value, befor e it was actua lly taken.” Dunlevy
, 91 I ll. at 54. ¶ 42 The more rec ent decision of this cour t i n B l u e Is l a n d d id not purport to addre ss the question of when a taking occur s. Rather, the court simply repe ated the established rule that the value of proper

ty to be taken in a condemnation proce eding is deter mined using the date the petition for conde mnation was filed. See Blue Island , 49 I ll. 2d at 411. ¶ 43 T hus, neither Dunlevy nor Blue Island supports the District’s arg ument , an d Du n l ev

y actua lly supports the landowne rs’ a rg ument. That leaves the District to rely upon Farwell

. But we do n o t fi n d t hat case persua sive here

. I n particula r, the District relies upon the following lang uag e fr om Farwell : “The constitution provides that private proper ty shall not be taken or damag ed for public use without just compensation, and it is alway s held that compensa tion is to b e d et er m ined as of the time of the taking

. There is a diversity of rule in dif fe re n t jurisdictions as to the time when a taking for public use occur s, but in this State that question has passed bey ond the stag e of discussion and has bec o m e a fi x ed rule, which is, that the compensat i o n is to be deter mined as of the date of filing the petition and not at the time of the trial.” Farwell , 286 I ll. at 417.
Fa rwe ll seems to have confuse d the date of valuation with the date of taking and equate d the
two as nece ssarily being the same thing. I n support of the above- quoted para g raph, Farwell cited Dunlevy

. But as we have noted, Dunlevy clea rly held that the filing of a condemnation compl ai n t i s not a taking

. Rather, a taking does not occur in I llinois until the condemning authorit y has paid the condemnation awa rd and acquir ed the rig ht to possess the p ro p er t y

. Dunlevy , 91 I ll. at 54. ¶ 44 Dunlevy is consistent with this court’s most rec ent decision g rappling with the question of t he point in time when a taking occur s under I llinois law. I n Forest Preserv e Dist rict v.

-11-W

est Suburban Bank , 161 I ll. 2d 448, 455 (1994), this court noted that the issue of whe n a taking occur s in a condemna tion proce eding “is a somewhat amorphous question.” I n one sense, “ as a matter of leg al fiction,” it has be en held that a taking occur s upon the filing of

a complaint beca

use the title acquir ed upon pay ment of just compensation relates back to the time of t he fili ng of t he complaint. See W est Suburban
, 161 I ll. 2 d at 455 (discussing City of Chicago v. McCausland , 379 I ll. 602 (1942)). B ut in a more “ corpor eal se nse,” a taking does not take p l ac e u n t i l compensation has been asce rtained and paid, beca use until that point, the owner s “continue to enjoy title and the rig h t s as s o ci at ed with possession of the
proper ty .” W est Suburban , 161 I ll. 2d at 455-56. ¶ 45 The appellate court here corr ectly noted that W est Suburban ’s discussion of case s finding

a taking dating back to the filing of the complaint conce rned whether landowner s wer e liable for property taxes assessed after th e co n d em n at ion complaints had been fil ed. S ee 401 I ll. App. 3d at 989. A party is liable for taxes on the proper ty until compensation is paid and the landowner relinquish es title, but he may be reimburse d by the county for the taxes paid dating back to the filing of the complaint. Yet, the condemning authority could abandon the taking at any time be fore acquir ing title, lea ving the landowne r liable for the taxes w ithout
any hope of reimburse ment. We ag ree with the appellate court that the disc u s sion in W est Suburban of case s like McCausland does not inform our decision here reg arding the time of a taking for pur

poses of the holding in Kirby

. ¶ 46 Given that the c o n d e mn in g a uth o r it y in an I llinois condemnation proce eding can a bandon the proce eding at any time prior to making pay ment and acquir ing title and the rig ht to possession, we too find it difficult to fathom how a taking could occur any sooner. See Kirby
, 467 U.S. at 12 (the g overnme nt’s “ca pacity to withdraw from the proce eding *** would be difficult to explain if a taking wer e eff ectuated prior to tender ing of pay ment ”) ; see also Dan f o r t h
, 3 0 8 U.S. at 284 (“U ntil taking
, the condemnor may discontinue or abandon his eff ort[;] [t ]he deter

mination of the awa

rd is an offe r subject to acc eptanc e by the condemnor and thus g ives to the user of the s o v er eign power of eminent domain an opportunity to deter mine whe t h er the valuations leave the cost of completion within his resour ces.” ). Moreove r, the fac t that I llinois has a quick-take statute is further support for our conclusion that a taking did not occ u r upon the filing of the action. The option to file a quick-take
proce eding g iving the c ondemnor immediate r ight of possession would be superf luous if a taking had alr eady

occur red upon the filing of

the complaint. ¶ 47 The District cites the United States Supreme Court’s decision in Danforth to argue that the Supreme Cou rt would rec og nize an exception to the “time of taking is the time of
pay ment rule” in state condemnation proce eding s wher e a state statute d ef i n es a differ ent time of taking

. We disag ree that the exception noted i n Da n f o rth is applicable here

. I n Danforth
, the Court held that the date of taking is the date the g overnme nt pay s for the land and acquir es title. Danforth
, 308 U.S. at 284. I t found an exception to that holding exis ts for jurisdictions in which the taking occur s “by a statu t o ry provision, which fix es the time of taking by an eve nt such as the f

iling of a n action.” Danforth
, 308 U.S. at 284. The District
argues that I ll i n o i s h as s uch a rule fix ing the date of taking as the date the condemnation action is f iled. But we note that section 7-121 of the I llinois Eminent Domain Act does not mention when a taking occur s. Rather, it addre sses only the date of

valuation for purposes

-12-of deter mining just compensation at the condemnation proce eding s. Thus, I llinois does not have a statute setting the date of taking ear lier than the date of pay ment of the compensation

awa rd. Fur thermore
, to the extent that the District is arguing that I llinois has a state judicial rule setting the date of taking as the date of filing, we have alre ady reje cted that notion based

on our re ading s of Dunlevy and W est Suburban

. ¶ 48 The District cites Brown v. United States
, 263 U.S. 78 (1923), as an example of the kind of state statue that Danforth believed would qualify for the exception to the g ener al rule that

a taking does not oc cur prior to pa y ment. But the I daho statutory scheme at issue in Brown is clea rly distinguishable from section 7-121 of our act. Among other differ ence s, the scheme in Brown require d the pay ment of interest to the defe ndant from the date of summons. Our statutory provisions do not r equire the pay ment of interest betwee n the date of the filing of the conde mnation action and the date of the judg ment. ¶ 49 I f a “taking ” truly occur s un d er I l linois law upon filing, such would rende r our taking provisions unconstitutional in the absenc e of a statutory provision requiring the pay ment of interest to the landowner from the date of filing to the date of judgme nt. See Kirby
, 467 U.S.
at 11 & n.16 (citing United States v. 329.73 Acres of Land
, Situated in Grenada & Y alobusha Counties
, 704 F.2d 800, 812 & n.18 (5th Cir. 1983) (en banc) (the fifth amendment mandates
not only that a landowner be awa rded just compensation, repr esente d by the fair marke t value of the proper

ty on the date taken, but also that just compensation in the constitutional sense is the fair marke t value of the property at t he date of t aking
, plus interest from t h at d ate to the date of pay

ment)). W e ca

n easily avoid that re sult, however, be cause we find no doubt that a taking does not occur for our purposes until, at the very ear liest, the date the
g overn m en t deposits the condemna tion awa rd and is g iven the rig ht to take title and possession.

¶ 50 I I I . Fa ilure to Dema nd Speedy

Trial ¶ 51 Both the District and the Attorney Gene ral argue that the appellate court failed to a pply the holding of Blue Island
, wh i ch
, they contend, provides that a condemnation defe ndant who wishes to corr ect a situation wher e a case linge rs for a long time and the proper ty ’s value incre ases should either (1) m o v e t o d i s m iss the condemnation case or (2) file a “dema nd for a speedy trial.” Fa ilure to do so, they argue, results in forf eiture of any claim to

con s t i t u t i o n al injury resulting from the delay

. The Attorney Gene ral adds that the fifth amendment does not prohibit states from requiring landowner s t o follow particula r proce dures (such as those set forth in Blue Island ) to perf ect their rig ht to just compensation; all it demands is that the State’s proce dures be “re asonable
, cer tain and adequat e” ( W il li amson County Regional Planning Comm’n v. Hamilton Bank of Johnson City
, 47 3 U

. S. 172, 194 (1985)) and compor t with due proce ss. ¶ 52 We disag ree that Blue Island controls the outcome here

. First, the case is disti ng uishable

on i t s fa cts. I n Blue Island
, the landowner maintained that a four- y ear delay in the condemnation procee ding had deprived him of just compensation beca use the va lue of the l and had incre ased from the date the complaint was filed to the date the judgme nt wa s enter ed. This court no t ed t h at the defe ndant was repr esente d by an experience d

-13-condemnation attorney during the four-y ear period that the c ase was pending, who did not make a demand for a hear ing, but instead ag ree d to 20 continuance s that wer e reque sted by the condemning authority

. Blue Island limit ed its holding to the fac ts, finding that “[u] nder these fac ts and the law as stated in Chapin and W inkelman we cannot say that the trial court

err ed in denying the defe ndant’s trave rse as to the constitutional issues involved in the delay .” Blue Island , 49 I ll. 2d at 412. ¶ 53 We note that Blue Island seeme d to assume that there was no constitutional problem with a long delay wher e the landowner share d complicity in the delay . Her e, in contra st to Blue Island
, it does not appea

r that defe ndants ac q u i es ced to any unnece ssary delay

. Rather, it
appea rs that both sides in the proce eding s below vigor ously litigated the issues as they arose

. The District p o ints to the delay incurre d as a result of defe ndants’ eff orts to resolve

owner ship of the prope rty and to g ain control of the rig ht to direc t the litigation, but we do
not believe that these eff orts wer e unnece ssary or that they wr o n gfully prolong ed the litigation so that they could be said to result in holding defe ndants char g eable for delay and denying the m their constitutional right to just compensation. ¶ 54 Second, we note that Blue Island looked at the case throug h the lens of W inkelman and Chapin and saw the issue more in the nature of a tort-like action for damag es to compensate for the g overnme nt’s wrong ful delay
, rathe r t han as a s i mple constitutional question. Blue Island
, of course , did not ha ve the be nefit of the Kirby decision, as it wa s decide d 13 y ear s befor e Kirby

. I n looking to W inkelman and Chapin
, Blue Island beg an its analy sis by noting that the rule requiring valuation as of the date of filing “could be productive of injury to the land owner.” Blue Island
, 49 I ll. 2d at 411. I t then cited W inkelman for t h e n o t i o n that the condemning authority “should prosec ute the suit with diligenc e and that it is liable to the land

owner for d am ages occa sioned by a wrong ful delay .” Blue Island
, 49 I ll. 2d at 411; W inkelman , 213 I ll. 360. I t also cited Chapin for the proposition that a court may proper ly dismiss a condemna

tion suit for failure of the plaintiff to prosec ute it with diligenc e, “ ‘whe re

no sufficie nt excuse is presented.’ ” Blue Island
, 49 I ll. 2d at 411 (quoting Chapin
, 226 I ll.
at 501). Blue Island then observe d that the rig ht to rec over damag es for the delay is not based simply upon the fac t that there is a delay
, but on the theory that there is a “wr ong ful” delay

. Blue Island
, 49 I ll. 2d at 411. I t also implied that a landowner confr onted with the possibili ty of delay s cause d by the g overnme nt had a duty to reque st a speedy trial based on the following lang uag e fr om W inkelman : “ ‘The defe ndant who stands by and makes no eff ort to bring his cause to tria l should be considere d as waiving damag es ca used by the delay . I f he desire s a spee dy

trial, it is his duty

to advise the c ourt of that fa ct.’ ” Blue Island
, 49 I ll. 2d at 411 (quoting W

inkelman , 213 I ll. at 364). ¶ 55 We find that the discussion in Blue Island with respe ct to wrong ful delay and the ne ed for a speedy -trial reque st, which relies upon W inkelman and Chapin
, is not applicable here

. Def endants are not seekingdamag es, but rathe r just compensation. We do not believe that the holding of Kirby can only be applied wher e there is wrong ful conduct on the part of the
g overnme nt. Nor do we believe that defe ndants wer e require d to demand a speedy trial under
t h e ci rc umstances of the present case

. A defendants’ need to push for a timely trial m ak es sense in the context of a situation where a landowner is encounte ring problems wit h delay in the g overnme nt’s prosec ution of the case , as was the case in W inkelman
, Chapin and Blue

-14-Island

. But if neither party is doing any thing other than vigor ously litigating the issues that leg itimately

come up in the proce eding
, we see no valid rea son why a spee dy -trial dema

nd would be require d to prese rve a landowner ’s rig ht to just compensation, nor can we envision what prac tical g ood it would do to make such a demand. As the appellate court presc iently noted, “Would such a reque st require the parties to cut short discovery ? Would it require a defe ndant to forg o its rig ht to file a trave rse opposing the condemna tion, or preve nt the plaintiff from bring ing motions for summary judgme nt on the issues raised in the
trave rse, as the pl ainti ff did here ? Would the t rial court be required to g rant such a reque st for a speedy trial? I f it did not, would that res t o re t h e defe ndant’s rig ht to seek a more curr ent valuation for the proper ty that the plaintiff seeks to take? What about case s wher e, as h er e, the owner ship of the proper ty was the subject of a pending leg al dispute when the condemnation complaint was filed?
I llinois law provides no answe rs t o these questions. I ndeed, we have not found
any case in w hich a speedy condemnation tria l w as reque sted. Be cause it is unclea r what is meant by the ‘spee dy tri al ’ remedy that [t he District] and [t he Attorney Gene ral] argue the defen d an t s should have soug ht, that reme dy is not sufficie ntly ‘ce rtain and adequate’ under W illiamson County to serve as a viable alterna te method for se eking just compensation.” 401 I ll. App. 3d at 997.
We ag ree with the appellate court’s ass es s m en t

. Acc ording ly
, we do not believe that defe ndants’ fa ilure to follow the stricture s of Blue Island constituted a for feiture of its just
compensation claim.

¶ 56 I V. Option to Abandon the Condemnation Proceeding ¶ 57 We next consider two issues raised by defe ndants in their cross-a ppeal befor e this court. Def endants first argue that the appellate court err ed in holding that on rema nd the Di s t ri ct may choose to abandon this condemnation case , eve n t houg h the District has alre ady deposited fu n d s p ursuant to the trial court judgme nt but has not taken possession. 401 I ll. App. 3d at 1005. Def

endant points out that ear lier in its opinion, the appellate court held that, “for the purposes of the fifth amendment, we believe that for I llinois taking s just as for fede ral taking s, the date of the taking is the date on which the g overnme nt actua lly acquir es the proper ty by pay ing for it.” 401 I ll. App. 3d at 990. The District deposited the jury ’s awa rd of just compensation on Dec ember 20, 2007. Def endants argue that title to the proper ty passed to the District on that date, and the Distr i ct cannot now abandon that which it has alre ady taken. Moreove r, defe ndants contend that the date of valuation for any new trial must be De cembe r 20, 2007, and not, a s the appe llate cour t found, the date of any

new tria l. ¶ 58 The problem with de fenda nts’ argument is that it ignor es that the trial court in entering judgme nt on the jury ’s awa rd and allowing the District t o m ak e the deposit, specific ally order ed that the Dis trict’s right t o acq uire ti tle to the property and possession had to awa it

a future order from the court. The court did this to allow the District to perf orm due diligenc e with respe ct to some environmenta l conce rns with the proper ty and also beca

use defe ndants

wer e ra ising the Kirby issue and challeng ing the awa rd as denying just compensation. The

-15-rec ord does not ref lect that th e t ri al court ever resc inded its order defe rring the rig ht to acquir e title and possession. Moreove r, the appellate court has now vacated the jury ’s awa rd of compensation (subject to reinstateme nt), and we there fore do not y et know if the amount deposited ref

lects pay ment of just compensation, which would eff ectuate a taking

. We note that normally a taking does occur upon deposit of the judgme nt amount awa rded by the jury

. But under the specia l circ umstances here that is not the case

. The rea son for the rule that the taking occur s upon pay

ment is beca

u s e t h at is normally when the condemning authority acquir es title and the rig ht t o possession. See, e.g. , W est Suburban
, 161 I ll. 2d at 455-56; Dunlevy , 91 I ll. at 54. But because of the t rial court’s order defe rring the rig hts to ti tle and possession, which normally occur as a matter of la w upon pay

ment, we can only conclude that the “taking ” has not y et been consummated. Fo r t h at rea son, the appellate court was

corr ect to ho l d t h at “t h e d ate of any new trial, rathe r than the Dec ember 2007 time of the [Dist rict’s] deposit, will more closely approximate the ‘date of taking .’ ” 401 I ll. App. 3d at 1005. ¶ 59 W e al s o b el i eve that it follows logic ally that if a taking has not y et occur red, then the District is fre e to ab an d o n t he proce eding if it chooses. See W est Suburban
, 161 I ll. 2d at 456. We also ag ree with the following statement of the appellate court setting forth equitable
g rounds for its finding t h at t h e Di strict still had the option to abandon the condemnation
proce eding if it wishes to choose that cour se: “Althoug h the [Dist rict] here proper ly deposited the amo u n t o f the jury verdic t following the trial, it has not taken possession of the [p] roper ty , due to the pendenc y of this appea l. Our ruling in this case *** would cause prejudice to the [District] if the [Dist rict] wer e not g iven the opportunity to abandon the taking now that the cost of acquir ing the [p] roper

ty might be substantially highe r. Thus, in this case we hold that the [Dist rict] may abandon the taking if it wishes and withdraw its deposit of the amount of the jury ’s ver dict.” 401 I ll. App. 3d at 1005.

¶ 60 V. Good-F aith Neg otiation ¶ 61 Def

endants nex t argue that the appe l l at e court erre d in aff irming the trial court’s g rant of summary

judgme nt, finding that the District eng ag ed in g ood-fa ith neg otiations prior to filing suit. Specifica lly
, defe n d an t s argue that the District’s offe r was not supported by

rea sonable e vidence of value, and its neg otiations wer e there fore not conducte d in g ood faith. ¶ 62 Summary judgme nt is proper when the pleading s , d ep o s i t i o n s an d affidavits on file demonstrate that no g enuine issue of materia l fac t exis ts, and that the moving party is entitled
to jud gm en t as a matter of l aw. 735 I L CS 5/2-1005(c) (West 1998). This court conducts a de novo revie w of an order g ranting summary judgme nt. Millennium Park Jo i n t V enture, LLC v. Houlihan , 241 I ll. 2d 281, 309 (2010). ¶ 63 The Eminent Domain Act provided at the time o f t h e n ego t i at ions at issue here that a
g overnme ntal body may exercise the power of eminent domain throug h a condemnation
proce eding only

wher e, amongother things, “the compensation to be pa id for or in re spect

o f the proper

ty soug ht to be appropr iated *** cannot be ag ree d upon by the parties interested.” 735 I L CS 5/7-102 (West 1998). This provision has been interpre ted by this court

-16-as requiring the condemnor to neg otiate wit h the landowne r in g ood faith over the amount

of compensation to be paid as a “condition prec edent” befor e it initiates proce eding s to take the landowner ’s proper

ty throug h eminent domai n

. De p artment of Transport ation ex rel. People v. 151 Int er

s t a t e R o a d Corp.
, 209 I ll. 2d 471, 480 (2004). An offe r made by a g overnme ntal body

based on the advice of an experience d appra isal consultant is normally sufficie nt to establish a g ood-fa ith attempt to ag ree

. See 151 Interstate
, 209 I ll. 2d at 489-90; Blue Island , 49 I ll. 2d at 413-14. ¶ 64 I n the p re s en t ca s e, the pleading s, depositions and aff idavits on file indicate that the District neg otiated in g ood faith as a matter of law. When the District decide d to acquir e the
proper ty in November 1999, it obtained a preliminary eng ineer ing repor t and, based on that,

a preliminary estimate of value. The Polach App ra i s al Group (Polach) provided a verba l estimate on November 23, 1999, that the proper ty had a value of $10.3 milli on. The District’s board of commissioners authorized the District to neg otiate for t he proper ty

. The District subsequently sent letters offe ring $9.27 milli on and g ave the owner s 10 business day s to respond before t he matter would proce ed to condemnation. The District’s chief neg otiator testified in his deposition that it was the District’s policy to make its initial offe r 10% below the appra ised value. I f the landowner made a counter offe r, the neg otiator could immediately offe r the full appra ised value, and could g o as high as 10% more t han the appra ised value befor e havingto seek fur

ther a pproval fr om the board. ¶ 65 On Dec ember 3, 1999, the District rec eived an updated verba l appra isal from Polach of $11.2 milli on. But on Dec ember 6, 1999, David W

. P hillips
, a second appra iser that the District had hired, came back with his estimate stating that he believed the Polach appra isal

was too high, and it was his opinion that the proper ty h ad a value of $8.995 milli on. The

owner s rejec ted the District’s initial offe r of $9.27 milli on, but did not bother to make any
counter offe rs. ¶ 66 As the appellate court noted, the District’s decision to offe r defe ndants slightly less than the first appra isal it rec eived as a starting offe r–but more than that the second appra isal it

rec eived prior to its decision to commence the condemnation proce eding s–is not compar able
to the eg reg ious behavior prese nt in the two case s relied upon by defe ndants to support their position. See 401 I ll. App. 3d at 974 (discussing City of Chi cago v. Zappani , 376 I ll. App. 3d 927 (2007) ( wher e the city offe red be tween 45% and 60% of the appr aised va lue of the
parc els it so u gh t ), and City of Naperville v. Old Second National Bank of Aurora
, 327 I ll. App. 3d 734 (2002) (whe re the city offe red less than half of its own appra ised value for the
proper ty)). I n contra st, the District’s offe r here canno t “b e viewed in the light of a ridiculously low offe r without foundation on a take- it or leave -it basis.” Blue Island
, 49 I ll. 2d at 414. Un d er these circ umstances, then, we find that the District’s neg otiations wer e clea rly conducte d in g ood faith and that there w as an ina bility of the pa rties t o ag ree on an

acc eptable purcha se price

. Thus, the District’s filing of the condemnation action in this case

was a llowable. ¶ 67 Def

endants also argue that the District’s appra isal failed to take into acc ount the Summit
parc el’s contra ct price and that t h i s v i o l ated acc epted appra isal industry standards. Def endants, howe ver, ha

ve forfeited the arg

ument by failing to present it to the trial cour t, and we will there fore not consider it here

. See In re Application of the County Treasurer &

-17-ex officio County Collector , 373 I ll. App. 3d 679, 702 (2007).

¶ 68 Def

endan t s m ak e two additional arguments related to g ood faith. They arg ue that the District’s l ack of g ood faith i s shown by its failure to attach an appr aisal to its offer letters and by setting a limit of 10 day s for nego t i at i ons. The appellate court corr ectly found that neither of these actions violated any constraints place d on condemning bodies. See 401 I ll. App. 3d at 975. Under section 7-102.1 of the Act, the condemning authority ’s offe r letter to the landowner must include “[t] he amount of compensation for the t ak ing of the proper ty proposed b y t h e ag ency , and the basis for computing it.” 735 I L CS 5/7-102.1(d)( 1) (West 1998). No I llinois court has ever held that including “the ba sis for computing ” the amount of compensation means that the condemning authority must actua lly tender its own appra isal
to the landowner

. Be cause plaintiff was not require d by law to attach an appra isal to its offe r letter, we decline to f

ind that the failure to do so constitutes a lack of g ood faith. Simi larly
, we conclude that a condemning body is not leg ally constraine d to provide more than 10 day s for neg otiations in order to satisfy the g ood-fa ith require ment. See Blue Island
, 49 I ll. 2d at 410, 414; County Board of School Trust ees v . Batchelde r , 7 I ll. 2d 178, 180-82 (1955).

¶ 69 CONCL USI ON ¶ 70 Fo r t h e fore g oing rea sons, we affirm the judgme nt of t he appellate court. We find that the appe llate cour

t corre ctly

aff irmed the c ircuit court’s order gr antingsummary judgme nt in the District ’s fa v o r on the issue of g ood-fa ith neg otiations. The appellate court also

corr ectly vaca

ted the jury ’s verdic t as to th e v al u e of the proper ty , subject to a possible reinstateme nt by

the trial cour

t following a hear ing on just compensation using the c urre nt value of the proper

ty

. T h e cause is rema

nded to the circ uit court of Du Pag e County for further proce eding s consistent with this opi nion.

¶ 71 Appellate c ourt judg ment aff irmed; ¶ 72 cause rema

nded.

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