Department of Public Works v. Sun Oil Co. (66 Ill. App. 3d 64, 1978)

Mr. JUSTICE KUNCE

delivered the opinion of the court:

Kenneth J. Johnson, Mary Johnson, Clayton Johnson and Maxine Johnson appeal from a judgment entered on a jury verdict for *28,500 in compensation for the taking of 1.07 acres and zero damages to the remainder, 1.93 acres.

The defendants contend that they were denied a fair trial: (1) by the State’s violation of the court’s order in limine to refrain from referring to Kenneth Johnson’s letter of negotiation sent to the State until further order of the court; (2) by the State commenting in closing argument that the jurors, as taxpayers, would ultimately pay the judgment; and (3) by the court giving Illinois Pattern Instructions, Civil, No. 300.70 (2d ed. 1971) (hereinafter IPI), “Instruction on Verdict Forms and Forms of Verdict— Just Compensation — Facts of Damages to Remainder — Single Tract.” In the alternative, defendants argue that if any one of the foregoing errors is not sufficient, in and of itself, then the cumulative effect of the errors deprived defendants of a fair trial.

The singular aspect of this case is that, not only are Kenneth Johnson and Clayton Johnson owners of the property, but they are recognized as, and were qualified at trial as, experts in the evaluation of property located in the vicinity of interchanges on the Interstate Highway System in Southern Illinois, and particularly in St. Clair County. Defendants, as beneficiaries of an Illinois land trust, were the owners of three acres at the junction of the Illinois Route 161 and Interstate 64 in St. Clair County, Illinois. At that point, Illinois Route 161 runs in an east-west direction and 1-64 runs in a northwesterly direction. On January 8,1971, the State filed a condemnation petition for 1.07 acres of defendants’ three acres, and on January 20, 1971, the court granted petitioner’s motion for immediate vesting of title filed pursuant to the “quick take” provisions of the Eminent Domain Act (Ill. Rev. Stat. 1969, ch. 47, par. 1 et seq). The defendants filed a cross-petition for damages to the remaining 1.93 acres. Prior to the filing of the State’s petition for condemnation, Kenneth and Clayton Johnson, by letter, rejected the State’s offer of *11,770 for the 1.07-acre tract. In the same letter, the Johnsons made a counteroffer to sell said tract to the State for *32,000. The counteroffer was made with the provision that the counteroffer would not preclude the Johnsons from seeking a higher value for their land if condemnation proceedings were instituted. This letter will be hereinafter referred to as the letter of negotiations.

Prior to trial, defendants filed a written motion in limine requesting an order limiting petitioner in its opening statement and the introduction of “evidence from any direct, or indirect, reference to any oral or written offers, counter-offers or aspects of negotiations between the parties.” Prior to the introduction of evidence, a hearing was held on the motion in limine. Defendants contended that the letter was an offer of negotiation and, therefore, inadmissible. Petitioner contended that the letter could be used as impeachment as a prior inconsistent statement if Kenneth and/or Clayton Johnson testified to a higher evaluation for the property, i.e., at trial the property was worth a certain amount of money in excess of *32,000. However, if the Johnsons stated that they would accept a certain amount of money for the property, that was a subject of negotiation and, hence, inadmissible. The court ruled that before petitioner attempted to offer any evidence of prior negotiations, an offer of proof would be made outside the presence of the jury. The court would then make a ruling on the admissibility of the evidence.

Kenneth Johnson testified that the highest and best use for the entire tract before taking was highway commercial, which includes gas stations, motels, and fast-food businesses. Mr. Johnson was of the opinion that the value of the entire tract before taking was *110,000 and that the value of the 1.07 acres taken by the State was *40,000. He was also of the opinion that the value of the remaining 1.93 acres prior to taking was *70,000 and that after the taking, due to the loss of direct accessibility to Illinois Route 161 the value was only *25,000; therefore, the damage to the remainder was *45,000. On cross-examination, Mr. Johnson was asked whether he had ever placed a different value on the entire property, and he responded that the entire tract was bought by the defendant for *32,500. The State then asked whether he ever placed a value of *32,000 on the property which was taken and *33,000 on the whole tract. After a prompt objection by defense counsel, an offer of proof was held in chambers. The State argues that its questions were for purposes of establishing a foundation and that the order in limine was not violated as no attempt had been made to introduce the letter. After hearing a lengthy argument by counsel, the court ruled that the negotiation letter was inadmissible for impeachment purposes as it would be opening the door to the negotiations between the parties. After returning to the courtroom, the court ordered the last question and answer stricken and admonished the jury to disregard same. The court was asked to order the record to reflect that when petitioner’s counsel cross-examined Kenneth Johnson, counsel held the letter high enough in his hand that the letter was visible to all members of the jury. The issue was again raised in defendant’s post-trial motion. The court denied the post-trial motions and stated in his written opinion that the court was satisfied that no evidence was presented to the jury that there had been any prior negotiations between the parties and that because Clayton and Kenneth Johnson took the stand as experts as well as property owners, it was not improper to challenge the basis of their expert evaluation.

A motion in limine is a pretrial motion which seeks an order excluding certain evidence, on the ground that its admission would violate some ordinary rule of evidence. In this case as in other condemnation cases, after efforts to agree have failed, all previous negotiations or offers were at an end and their character and extent are not admissible. (City of Chicago v. Harrison-Halsted Building Corp. (1957), 11 Ill. 2d 431,143 N.E.2d 40.) The advantage of a motion in limine is that it allows a party to obtain an order excluding inadmissible evidence without having to object to, and thereby emphasize, the evidence before the jury. Use of such a motion thus enables a party to prevent his opponent beforehand from attempting to prejudice the jury by offering evidence which the opponent knows should be excluded or stricken upon objections. (Department of Public Works & Buildings v. Roehrig (5th Dist. 1976), 45 Ill. App. 3d 189, 359 N.E.2d 752.) In the case at bar, defendant contends that he was merely establishing a foundation for impeachment and did not violate the order in limine. After Kenneth Johnson testified that the property was bought for *32,500, the State should have requested an in chambers conference on whether the letter of negotiation could be introduced into evidence if a foundation was established and on what questions, if any, could be asked to establish that foundation. During conference in chambers, defendant’s counsel asked the court to have the record indicate that at the time Mr. Johnson was asked if he had ever valued the property at *32,000, the State’s counsel was holding the letter aloft in plain view of the jurors, inferring that he had documentation in his hand about which he was questioning the witness. Although the court did not have the record so reflect, he allowed the letter to become part of the record. Counsel for the State did not deny at trial and did not deny at oral argument that his actions, as described by the defense counsel, were incorrect. We also find important that in the settlement letter, Mr. Johnson made a counteroffer of *32,000 for the 1.07 acres actually taken while the State’s counsel’s question and action implied that an evaluation of the whole three-acre tract for *33,000 had been made by Mr. Johnson.

The foregoing issue was preserved in defendants’ post-trial motion. In the court’s denial of said post-trial motion, he ruled that no evidence of the prior negotiations had been presented to the jury and that no error occurred. We give great weight to the findings of the trial court as he was in a superior position to observe the progress of trial and observe the reaction of the jury. However, we find that the State’s violation of the order was not cured and the prejudice removed by the trial court’s ruling and admonition to the jury to disregard the question and response made by the witness. Such settlement offers in condemnation proceedings are inadmissible at trial. (City of Waukegan v. Stanczak (1955), 6 Ill. 2d 594, 129 N.E.2d 751; City of Chicago v. Hamlin (1962), 24 Ill. 2d 148, 18 N.E.2d 473.) It is most difficult to determine what effect such conduct and error had on the minds of the jurors. On ruling on the post-trial motion, the trial court considered only the effect of each error and not their cumulative effect. When we consider this error together with those subsequently set out, the harm can be rectified only by a new trial.

During closing argument, the State stated: “[I] agree that they [defendants] ought to make a profit, but should it really be at the taxpayers’ expense to give them a big profit; after all, really, you know who pays for this stuff? You and I.” A prompt objection to that remark was sustained by the trial court. On appeal, counsel concedes that his comment was error but contends that the error was harmless. Counsel reasons that jurors are chosen from jury lists and if these people are interested enough in the political process to become eligible to vote, then the jurors are sophisticated enough to know that the jury’s award of damages would be paid by taxpayers’ money without having to be told. We find counsel’s argument without authority. While subconsciously the jurors may have had such an undisclosed prejudice, the argument of counsel had the effect of making them conscious of their personal interest in the determination of the amount of compensation and rendering their passive prejudice active. (Denver Joint Stock Land Bank v. Board of County Commissioners (1940), 105 Colo. 366, 98 P.2d 283.) The primary objective of condemnation proceedings is to satisfy the constitutional guaranty of just compensation and damages to the owner of private property taken for public use. (Ill. Const. 1970, art. 1, §15.) Although we have found no Illinois cases squarely on point, Department of Public Works & Buildings v. Keck (1928), 330 Ill. 39, 161 N.E. 55, and St Clair Housing Authority v. Quirin (1942), 379 Ill. 52, 39 N.E.2d 363, would indicate that prejudicial error occurred due to the State’s comment. In Department of Public Works