Arents v. ANR Pipeline Co.

• Citation: 281 Wis.2d 173,2005 WI App 61,696 N.W.2d 194
• Decision Date: 31 March 2005
• Docket Number: No. 03-1488.,03-1488.
• Parties: Douglas L. ARENTS, Marcia A. Arents, Thomas J. DiCristo, Mary Jo DiCristo, Lidia Dubinski, Marc T. Erickson, Nancy E. Erickson, Lee A. Lycan, Ellen L. Lycan, James A. Mathes, Gail A. Mathes, Mary Jo McGavock, Robert McGavock, Donna McGavock, Mary Mueller, Robert W. Roth, Barbara L. Roth, Jacque R. Sommers and Corinne M. Sommers, Plaintiffs-Appellants-Cross-Respondents, v. ANR PIPELINE COMPANY, Defendant-Respondent-Cross-Appellant.
• Court: Wisconsin Court of Appeals

281 Wis.2d 173

2005 WI App 61

696 N.W.2d 194

Douglas L. ARENTS, Marcia A. Arents, Thomas J. DiCristo, Mary Jo DiCristo, Lidia Dubinski, Marc T. Erickson, Nancy E. Erickson, Lee A. Lycan, Ellen L. Lycan, James A. Mathes, Gail A. Mathes, Mary Jo McGavock, Robert McGavock, Donna McGavock, Mary Mueller, Robert W. Roth, Barbara L. Roth, Jacque R. Sommers and Corinne M. Sommers,¹ Plaintiffs-Appellants-Cross-Respondents, v. ANR PIPELINE COMPANY, Defendant-Respondent-Cross-Appellant.²

No. 03-1488.

Court of Appeals of Wisconsin.

Submitted on briefs May 6, 2004.

Decided March 31, 2005.

On behalf of the plaintiffs-appellants-cross-respondents, the cause was submitted on the briefs of Robert W. Roth of Davis & Kuelthau, Brookfield, and Kevin J. Lyons, William L. Shenkenberg, and Tyson A. Ciepluch of Davis & Kuelthau, Milwaukee.

On behalf of the defendant-respondent-cross-appellant, the cause was submitted on the briefs of Thomas M. Pyper and Cynthia L. Buchko of Whyte Hirschboeck Dudek S.C., Madison.

Before Dykman, Vergeront and Higginbotham, JJ.

¶ 1. HIGGINBOTHAM, J.

Douglas L. Arents, Marcia A. Arents, Thomas J. DiCristo, Mary Jo DiCristo, Lidia Dubinski, Marc T. Erickson, Nancy E. Erickson, Lee A. Lycan, Ellen L. Lycan, James A. Mathes, Gail A. Mathes, Mary Jo McGavock, Robert McGavock, Donna McGavock, Mary Mueller, Robert W. Roth, Barbara L. Roth, Jacque R. Sommers and Corinne M. Sommers (collectively, the Landowners) appeal judgments resulting from jury awards of just compensation. In this condemnation proceeding ANR Pipeline Company condemned parts of the Landowners' properties for the purpose of installing a natural gas transmission pipeline.

¶ 2. The Landowners contend the judgments should be reversed and the case remanded for a new trial on several grounds: (1) the trial court erroneously excluded expert testimony regarding the price prospective buyers would pay for property containing a natural gas transmission pipeline; (2) the trial court unreasonably excluded evidence related to their duty to disclose real estate defects and improvements pursuant to WIS. STAT. ch. 709 (2003-04);³ (3) the trial court failed to properly instruct the jury regarding the disclosure requirements of ch. 709; (4) the trial court erroneously excluded expert testimony regarding safety issues and evidence of "fear and stigma" of the gas pipeline as it affects the hypothetical sale used to measure loss of value in a condemnation action; (5) the trial court erred by allowing ANR Pipeline Company to present expert evidence that did not constitute a "whole property" evaluation and analysis of severance damages under WIS. STAT. § 32.09; (6) the trial court deprived them of numerous constitutional guarantees, including just compensation and both procedural and substantive due process; and (7) they are entitled to a new trial in the interest of justice.

¶ 3. ANR Pipeline Company cross-appeals, arguing WIS. STAT. § 806.07(1)(a) and (h) do not authorize a trial court to vacate and reenter a judgment solely to extend the time for filing an appeal where, as here, there was no mistake in the entry of the judgments by the trial court and the Landowners should have discovered the date of entry prior to the expiration of the appeal deadline. Furthermore, ANR argues that a § 806.07 motion to vacate is untimely where, again as here, the Landowners waited two months after learning a judgment had been entered before filing the motion to vacate.

¶ 4. We conclude the trial court properly exercised its discretion by excluding the aforementioned evidence and by refusing to submit the jury instruction on disclosure requirements under WIS. STAT. ch. 709. We therefore affirm. We further conclude the Landowners waived their objection to the appraisal methodology employed by ANR's appraisers by failing to preserve the issue for appeal. We reject the Landowners' constitutional claims and deny the Landowners' request for a new trial. Finally, we affirm on the cross-appeal and conclude the trial court, in its exercise of discretion, had sufficient evidence to sustain its findings.

FACTS⁴

¶ 5. This appeal arises from a condemnation action pursuant to WIS. STAT. ch. 32, Wisconsin's general eminent domain chapter. The Landowners consist of ten families whose homesteads and other land were condemned in 1997 when ANR decided to construct a natural gas transmission pipeline through approximately eleven miles of suburban Waukesha County near the Landowners' homes.

¶ 6. The pipeline, which is now completely constructed, is generally contained within a corridor also containing high voltage electric transmission lines. The electric lines predated the pipeline by many years. This utility corridor runs across the Landowners' properties and contains both the electric lines above ground and the natural gas pipeline below ground.⁵

¶ 7. The pipeline is a major transmission line, a thirty-inch diameter steel pipe that transports large volumes of natural gas, is buried about four feet underground and is under 900 pounds of pressure per square inch. The pipeline is not visible other than certain aboveground stakes noting the presence of the pipeline. Natural gas transported through this pipeline is highly explosive and does not contain any odorant, unlike, for example, natural gas contained in pipes directly delivering gas to residences for home use. As proposed and built, the pipeline came within 100 feet or so of some Landowners' residences. The Landowners' understanding of the current law, pursuant to WIS. STAT. ch. 709, is if any of them were to place their property for sale, in addition to disclosing the presence of the pipeline, they would have to disclose the conditions the pipeline brings to their property, which, according to the Landowners, is that an odorless, dangerous gas passes through their properties and that a breach of the pipeline could result in catastrophe.

¶ 8. ANR initiated the condemnation proceeding of the properties for the purpose of taking both temporary and permanent easements to install and maintain the pipeline. On March 4, 1999 and September 8, 2002, ANR filed a lis pendens taking legal possession of easement rights on the Landowners' properties. The Waukesha County Condemnation Commission heard the case and awarded compensation to the Landowners.

¶ 9. Nine of ten Landowners and ANR appealed the Commission's decision, pursuant to WIS. STAT. § 32.06(10). The only issue litigated was just compensation for the Landowners.

¶ 10. ANR filed numerous motions in limine seeking to prohibit the introduction of certain evidence by the Landowners, particularly evidence concerning the alleged dangers brought to the land by the pipeline. Shortly before the trial, some of these motions were granted and others denied. A jury trial was held and judgment was entered in ANR's favor on eight of the ten claims.⁶ The Landowners appeal those judgments.

DISCUSSION

The Appeal

¶ 11. The sole issues to be tried in an eminent domain case are questions of title and just compensation. WIS. STAT. § 32.05(11); also Rademann v. DOT, 2002 WI App 59, ¶ 13, 252 Wis. 2d 191, 642 N.W.2d 600

. Here we address only the issue of just compensation. The rules governing determination of just compensation are provided in WIS. STAT. § 32.09:

In all matters involving the determination of just compensation in eminent domain proceedings, the following rules shall be followed:

(1) The compensation so determined ... for the purpose of determining whether severance damages exist shall be as of the date of evaluation as fixed by s. 32.05(7)(c) or 32.06(7).

(1m) As a basis for determining value, ... a court may consider the price and other terms and circumstances of any good faith sale or contract to sell and purchase comparable property ....

....

(6g) In the case of the taking of an easement, the compensation to be paid by the condemnor shall be determined by deducting from the fair market value of the whole property immediately before the date of evaluation, the fair market value of the remainder immediately after the date of evaluation, assuming the completion of the public improvement and giving effect, without allowance of offset for general benefits, and without restriction because of enumeration but without duplication, to the items of loss or damage to the property enumerated in sub. (6)(a) to (g) where shown to exist.

¶ 12. The admission or exclusion of evidence regarding fair market value in condemnation cases is left to the trial court's discretion. Rademann, 252 Wis. 2d 191, ¶ 15. The trial court has broad discretion in making evidentiary rulings. Martindale v. Ripp, 2001 WI 113, ¶ 28, 246 Wis. 2d 67, 629 N.W.2d 698. We will sustain the trial court's evidentiary rulings if the trial court "examined the relevant facts, applied a proper legal standard, and, using a demonstrated rational process, reached a reasonable conclusion." Id. ¶ 13. We first address whether the trial court reasonably excluded the introduction of certain expert testimony proffered by the Landowners. We assess whether the trial court properly exercised its discretion in excluding this expert testimony under WIS. STAT. § 907.02. Expert testimony is admissible if the witness is qualified as an expert and has specialized knowledge that is relevant because it will assist the trier of fact in understanding the evidence or determining a fact at issue. See State v. Davis, 2002 WI 75, ¶ 17, 254 Wis. 2d 1, 645 N.W.2d 913

. The admissibility of expert evidence is left to the sound discretion of the trial court. State v. Brewer, 195 Wis. 2d 295, 305, 536 N.W.2d 406 (Ct. App. 1995). However, "[a]ny relevant conclusions which are supported by a qualified witness should be received unless there are other reasons for exclusion." State v. Donner, 192 Wis. 2d 305, 316, 531 N.W.2d 369 (Ct. App. 1995) (citation omitted). Expert testimony will be excluded only if the testimony is superfluous or a waste of time. Id.

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