THE PEOPLE ex rel. THE DEPARTMENT OF TRANSPORTATION, Plaintiff-Appellant, v. FIRSTAR ILLINOIS, as Trustee, et al., Defendants-Appellees, 365 Ill. App. 3d 936

PRESIDING JUSTICE GROMETER delivered the opinion of the court: This appeal concerns proceedings had on a previous remand in this condemnation case. In the initial appeal to this court, the owners of the property (Goebel) claimed that the trial court erred when it (1) admitted into evidence a map that the Illinois Department of Transportation (IDOT) introduced; and (2) allowed IDOT’s sole expert to give valuation testimony based on that map. See People ex rel. Department of Transportation v. Firstar Illinois, No. 2—03—0987 (2004) (unpublished order under Supreme Court Rule 23) (IDOT I).

We agreed with Goebel, and, thus, we vacated the judgment and remanded the cause for further proceedings. On remand, Goebel stipulated to the value of the property taken and the damage to the remainder at the lowest amount to which Goebel’s experts had testified, and, subsequently, Goebel moved for

summary judgment (see 735 ILCS 5/2 — 1005(c) (West 2002)). IDOT advised the trial court that its expert had died, and it sought to name a new expert to testify at a new trial. The trial court granted

summary judgment, and IDOT timely appeals. The issues raised on appeal are (1) whether, on remand, the trial court violated this court’s mandate when it refused to reopen discovery and allow IDOT to proceed to a new trial with a new expert; (2) alternatively, whether the trial court abused its discretion in doing so; and (3) whether

summary judgment was properly granted. For the reasons that follow, we affirm. In 2002, IDOT initiated condemnation proceedings against Goebel for land located in Lombard, Illinois. Goebel counterclaimed for damage to the remainder of the property as a result of the taking, the trial court granted IDOT’s motion for immediate vestment of title, and the trial court set preliminary just compensation at $139,909. Subsequently, a jury trial was set to determine the fair market value of the property taken and the damage to the remainder.

Before trial, Goebel moved in limine to bar a map (the Eddy map) that IDOT’s expert, Fred Tadrowski, used to estimate the value of the property taken and the damage to the remainder. The trial court reserved ruling on the motion until trial. At trial, Goebel timely objected to the admission of the Eddy map and Tadrowski’s testimony. The trial court denied the motion, and the jury subsequently awarded Goebel $96,000, which was greater than the amount to which Tadrowski testified but far less than those to which Goebel’s two experts attested.

Goebel appealed to this court, contending, among other things, that the trial court erred when it admitted the Eddy map and Tadrowski’s testimony. This court agreed, concluding that the Eddy map lacked a proper foundation, and, thus, that the map and Tadrowski’s valuation testimony based on that map were unreliable.

Our mandate indicated that “in accordance with the views expressed in [our] *** Decision[,] the judgment of the trial court is Vacated and Remanded.” On remand, Goebel stipulated to just compensation of $235,000, which was the lowest value that Goebel’s experts gave for the property taken and the damage to the remainder. Goebel then moved for

summary judgment, contending that, because Tadrowski’s valuation testimony could not be considered, no issue of material fact remained. IDOT informed the trial court that Tadrowski had died since the jury trial, and it sought to introduce a new expert to give appraisal testimony at a new trial. The trial court granted Goebel’s motion for

summary judgment. In so doing, the trial court first found that this court’s mandate did not direct it to reopen discovery and proceed with an actual trial. Rather, the trial court determined that this court reversed the judgment and remanded the cause based on the grounds for Tadrowski’s testimony, not the disclosure of Tadrowski’s opinions. Because this court did not require the trial court to proceed in any particular manner, the trial court concluded that it had discretion as to whether to allow further discovery, and it refused to exercise that discretion to reopen discovery, for three reasons.

First, it believed that this court would have awarded Goebel just compensation but for the fact that, at trial, Goebel’s two experts, whose testimony comprised the only competent valuation evidence, presented a wide range of values for the property taken and the damage to the remainder. Second, it concluded that Goebel would be prejudiced if the trial court reopened discovery, because IDOT easily could have disclosed and presented more, than one expert at the first trial.

Third, the trial court determined that reopening discovery would prejudice Goebel because, given the extended history of the case, Goebel would have to wait too long to receive just compensation. Because our mandate did not dictate how the trial court should proceed and the trial court refused to reopen discovery, the court found that

summary judgment was proper, because once Goebel stipulated to the lowest competent value of the property taken and the damage to the remainder, no issue as to just compensation remained. This appeal followed. The first issue we address is whether the trial court violated this court’s mandate, which is a question of law that we review de novo. Clemons v. Mechanical Devices Co., 202 Ill. 2d 344, 351-52 (2002). The basic rules on how a trial court should proceed when a cause is remanded are well settled. Clemons, 202 111. 2d at 352.

After a judgment is reversed and the cause is remanded, the trial court can conduct only such further proceedings as conform to the appellate court’s judgment. Roggenbuck v. Breuhaus, 330 Ill. 294, 297 (1928). For example, when the appellate court gives specific directions on how the cause should proceed, the trial court can do nothing except carry out those explicit instructions. Roggenbuck, 330 Ill. at 297. However, if the appellate court’s decision fails to give specific instructions, the trial court’s judgment is entirely abrogated and the cause, on remand, stands as if no trial had taken place. Kinney v.

Lindgren, 373 Ill. 415, 420 (1940). At that point, the trial court has the same control over the record that it had before entering its judgment, and, as such, it may allow the introduction of further evidence as long as such a step is not inconsistent with the appellate court’s decision. Kinney, 373 Ill. at 420. Of course, when specific directions are not given, “it is then the duty of the court to which the cause is remanded to examine the reviewing court’s opinion and to proceed in conformity with the views expressed in it.” Clemons, 202 Ill. 2d at 353.

In this court’s mandate, we reversed the judgment and remanded the cause. Our mandate did not provide the trial court with specific instructions on how the cause should proceed. As such, the trial court had to examine our decision and could proceed in any manner not inconsistent with it. IDOT observes that our decision stated that we were remanding “for a new trial.” IDOT I, slip order at 5. However, contrary to IDOT’s suggestion, that direction did not require the trial court to conduct an actual trial. When a new trial is ordered, that includes all phases of a trial, including all pretrial matters. Jones v.

Petrolane-Cirgas, Inc., 186 Ill. App. 3d 1030, 1033 (1989). Accordingly, if, on remand for a new trial, the trial court finds that no issue of material fact exists, the trial court may enter

summary judgment. Jones, 186 Ill. App. 3d at 1033. Thus, we determine that we did not explicitly require the trial court to reopen discovery and allow IDOT to proceed to a new trial with a new expert. That said, we acknowledge that in some cases the trial court is required to permit the introduction of additional evidence even when the reviewing court has not explicitly so ordered.

See Clemons, 202 Ill. 2d at 353. “When a judgment is reversed and the cause remanded with directions to proceed in conformity to the opinion then filed, and it appears from the opinion that the grounds of reversal are of a character to be obviated by subsequent amendment of the pleadings or the introduction of additional evidence, it is the duty of the trial court to permit the cause to be re-docketed and then to permit amendments to be made and evidence to be introduced on the hearing just as if the cause was then being heard for the first time.” Roggenbuck, 330 Ill. at 298.

Here, IDOT sets out this rule, emphasizing the portion stating that the trial court has a duty to permit evidence to be introduced. However, until oral argument, IDOT did not address the condition that must be satisfied to invoke that duty, i.e., that “the grounds of reversal are of a character to be obviated by *** the introduction of additional evidence.” Roggenbuck, 330 Ill. at 298; see Clemons, 202 Ill. 2d at 353-54 (stating the rule, but emphasizing the condition that must be satisfied). Because IDOT failed to timely provide an argument as to why the rule applies, it has waived its reliance on the rule.

See Official Reports Advance Sheet No. 21 (October 17, 2001), R. 341(e)(7), eff. October 1, 2001. Although that waiver relieves us of any need to resolve the issue definitively, we note that we have grave doubts about the applicability of Roggenbuck At oral argument, IDOT acknowledged that the grounds of reversal in IDOT I were that the Eddy map and Tadrowski’s testimony lacked foundation. Further, IDOT conceded that it would be virtually unable to introduce additional evidence to provide such foundation.

Thus, it seems to us that IDOT essentially concedes that the grounds of reversal could not be obviated by the introduction of additional evidence, and thus the trial court had no duty to permit such evidence. At oral argument, IDOT asserted that it could obviate the grounds of reversal in IDOT I by presenting a wholly new expert who would have relied on a wholly new map and would provide wholly new valuation testimony. Although again we decline to say so definitively, we tend to think that Roggenbuck does not function that way.

In Clemons, for example, the grounds of reversal in the first appeal were “the incorrect admission of evidence and corresponding jury instruction regarding the [Illinois Wage Payment and Collection Act (Wage Act) (820 ILCS 115/1 et seq. (West 1994))].” Clemons, 202 Ill. 2d at 354. On remand, the trial court denied the plaintiff’s motion to amend his complaint to add a claim under the Wage Act, and the plaintiff appealed. The supreme court noted that, had the plaintiff originally alleged a violation of the Wage Act, the evidence and the instruction would not have been erroneous.

Thus, under Roggenbuck, the trial court had the duty to allow the plaintiff to amend his complaint to add a claim under the Wage Act, and it retained discretion as to any other matters on remand. Clemons, 202 Ill. 2d at 354-55. Here, again, the grounds of reversal in IDOT I were the erroneous admission of the Eddy map and Tadrowski’s testimony. Had IDOT introduced evidence to establish foundation, the admission of the map and the testimony would not have been erroneous; thus, the trial court would have had the duty to permit the introduction of such evidence.

However, IDOT basically concedes that it has no such evidence. Instead, it seeks to introduce wholly new evidence, independent of the Eddy map and Tadrowski’s testimony. The problem is that even if it had originally introduced such new evidence, the admission of the Eddy map and Tadrowski’s testimony still would have been erroneous. Thus, the trial court had no duty to permit IDOT to introduce its new evidence. Rather, such permission was within the court’s discretion. We thus consider whether the trial court abused its discretion in refusing to reopen discovery and allow IDOT to name a new expert.

See Clemons, 202 Ill. 2d at 352. The trial court has power over the conduct of discovery, and its decision will not be disturbed on appeal absent an abuse of discretion. Ragan v. Columbia Mutual Insurance Co., 183 Ill. 2d 342, 352 (1998). Here, after reviewing the grounds for the trial court’s ruling, we cannot conclude that the trial court abused its discretion when it refused to reopen discovery. First, the trial court noted that new expert testimony was unnecessary because Goebel presented two experts who testified about the property’s fair market value.

Under these circumstances, we agree that no other valuation testimony was needed, as the trial court already had competent evidence upon which to draw in fashioning an appropriate amount of damages. To be sure, the fact that none of the remaining evidence was IDOT’s worked some prejudice to IDOT. However, as a second basis for refusing to reopen discovery, the trial court determined that reopening discovery would work a prejudice to Goebel, and we agree. When the suit began, IDOT easily could have named more than one expert, but it chose not to do so.

Thus, IDOT took the chance that, if Tadrowski were discredited, it would be left with nothing. As it was IDOT that took that risk, the trial court could have reasonably determined that Goebel should not be made to pay for it. Lastly, the trial court concluded that reopening discovery would violate Goebel’s right to receive just compensation in a relatively expeditious manner. Again, we agree. As Goebel notes, when a condemnation suit continues for several years, the right to just compensation is infringed, even when the owner receives interest on the property’s fair market value.

See Kirby Forest Industries, Inc. v. United States, 467 U.S. 1, 81 L. Ed. 2d 1, 104 S. Ct. 2187 (1984). Because the trial court did not abuse its discretion when it refused to reopen discovery and allow IDOT to present new expert testimony, the next issue we address is whether

summary judgment was proper.

Summary judgment is appropriate where “the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” 735 ILCS 5/2— 1005(c) (West 2002). A triable issue precluding

summary judgment exists where material facts are disputed or where the material facts are undisputed but reasonable people might draw different inferences from the undisputed facts. Adams v. Northern Illinois Gas Co., 211 Ill. 2d 32, 43 (2004). We review de novo the entry of

summary judgment. Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 102 (1992). Here, after this court deemed Tadrowski’s testimony incompetent, the only competent valuation evidence presented was that of Goebel’s two experts. When only one party presents competent evidence on a property’s value, a trial court may enter judgment for just compensation at an amount within the range offered by the party submitting competent evidence. See generally Southwestern Illinois Development Authority v. Al-Muhajirum, 348 Ill. App. 3d 398 (2004).

On remand, Goebel stipulated to just compensation at the lowest value to which their experts testified. As the trial court noted, but for that stipulation, Goebel would have insisted that just compensation was the highest amount assigned by their experts, and, in contrast, IDOT would have argued that just compensation was the lowest such value. Thus, once the trial court refused to reopen discovery and Goebel stipulated to the value on which IDOT would have insisted, no issue as to just compensation remained, and

summary judgment was proper. For these reasons, the judgment of the circuit court of Du Page County is affirmed. Affirmed. CALLUM, J., concurs. At oral argument, Goebel asserted that Roggenbuck itself is of dubious viability in light of the subsequent enactment of Supreme Court Rule 213 (210 Ill. 2d R. 213). Although the supreme court recently validated Roggenbuck in a general sense (Clemons, 202 Ill. 2d at 354), we nevertheless see some merit in Goebel’s assertion. In any event, we may save that assertion for another day.