Board of County Commissioners of Putnam County v. Weis, 091619 OHCA3, 12-19-01

Docket Nº:12-19-01, 12-19-02
Opinion Judge:SHAW, J.
Party Name:BOARD OF COUNTY COMMISSIONERS OF PUTNAM COUNTY, OH, PLAINTIFF-APPELLEE, v. WILLIAM R. WEIS, ET AL., DEFENDANTS-APPELLANTS. BOARD OF COUNTY COMMISSIONERS OF PUTNAM COUNTY, OH, PLAINTIFF-APPELLEE, v. MARK G. MAAG, ET AL., DEFENDANTS-APPELLANTS.
Attorney:Linde Hurst Webb for Appellants. Frank J. Reed, Jr. and Stephen E. Chappelear for Appellee.
Judge Panel:ZIMMERMAN, P.J. and WILLAMOWSKI, J., concur.
Case Date:September 16, 2019
Court:Court of Appeals of Ohio
 
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2019-Ohio-3720

BOARD OF COUNTY COMMISSIONERS OF PUTNAM COUNTY, OH, PLAINTIFF-APPELLEE,

v.

WILLIAM R. WEIS, ET AL., DEFENDANTS-APPELLANTS.

BOARD OF COUNTY COMMISSIONERS OF PUTNAM COUNTY, OH, PLAINTIFF-APPELLEE,

v.

MARK G. MAAG, ET AL., DEFENDANTS-APPELLANTS.

Nos. 12-19-01, 12-19-02

Court of Appeals of Ohio, Third District, Putnam

September 16, 2019

Appeals from Putnam County Common Pleas Court Trial Court Nos. 2018-CV-23 and 2018-CV-26

Judgments Affirmed

Linde Hurst Webb for Appellants.

Frank J. Reed, Jr. and Stephen E. Chappelear for Appellee.

OPINION

SHAW, J.

{¶1} Landowners-appellants, Mark Maag, Patricia Maag, William Weis, and Mary K. Weis (collectively, the "landowners"), bring these appeals from the January 28, 2019, and February 6, 2019, judgments of the Putnam County Common Pleas Court awarding landowners compensation for land that had been appropriated by the Board of Putnam County Commissioners (the "commissioners") to widen County Road 5 ("Road 5"). On appeal, landowners contend that the trial court erred by refusing to dismiss the commissioners' applications for appropriation for failure to meet the requisite statutory requirements, that the trial court erred by determining the "date of the take," that the trial court erred by consolidating all of the jury trials, that the trial court erred when it "conditioned a new trial date on the landowners waiving their constitutional right to separate trials," and that the trial court erred by excluding the testimony of a rebuttal witness at trial.

Background

{¶2} In 2012, commissioners filed appropriation petitions seeking to widen Road 5 in part to accommodate truck traffic to an industrial park. While litigation was ongoing in both the trial court and this Court, the widening of the road was completed in October of 2012.1

{¶3} In 2014, this Court determined that the commissioners did not follow the proper procedures for the road-widening project. See State ex rel. Patrick Bros., A Gen. Partnership v. Putnam Cty. Bd. of Commrs., 3d Dist. Putnam No. 12-13-05, 2014-Ohio-2717, appeal not accepted 141 Ohio St.3d 1422, 2014-Ohio-5567. Subsequently, after further proceedings occurred at the trial court level, this Court directed the commissioners to dismiss the appropriation cases that had been previously filed and to refile them once the proper procedures had been followed. See Putnam Cty. Bd. Of Commrs. V. Patrick Bros., et al, 3d Dist. Putnam No. 12-15-06, (Dec. 21, 2015).2

{¶4} In 2018, commissioners filed thirteen appropriation cases against the Road 5 landowners. The refiled cases were done after a unanimous vote of the commissioners pursuant to a freeholders petition submitted under R.C. 5555.06.3 The commissioners also determined that the appropriation was necessary, which was stated in the applications for appropriation. Attached to the individual petitions for appropriation were the 2011 appraisals with offers to pay the assigned value of the property.

{¶5} Only two of the thirteen appropriation cases proceeded to a jury verdict and those two cases are the subjects of this appeal. One of the properties, the Weis property, had .0298 net acres appropriated for a perpetual, permanent easement.4The second property, owned by the Maags, had .6681 acres of property appropriated.[5]

{¶6} The trial court set the matters for trial on October 9-12, 2018, using an abbreviated scheduling due to R.C. 163.22, which requires appropriation proceedings to "be advanced as a matter of immediate public interest and concern and shall be heard by the court at the earliest practicable moment." All of the cases were consolidated for purposes of trial under Civ.R. 42(A), with the trial court finding that they presented common questions of law and fact. Landowners challenged the consolidation, requesting separate individual trials, but this was denied by the trial court.

{¶7} On August 3, 2018, a pretrial hearing was held wherein landowners filed a motion to continue the October trial date. Landowners contended that they needed additional time to get their own appraisals of the appropriated property completed. The trial court inquired as to why the landowners were only just now, so many years after the actual physical appropriation, and over six months into the current action, attempting to get their own appraisals. Unsatisfied with landowners' response, the trial court denied the motion to continue the trial date. Landowners then again attempted to sever the trials. The commissioners argued that this was just another attempt at delaying the matter. Although the trial court again refused to sever the trials, in order to prevent confusion on valuing the properties an entry was issued that one jury would hear the evidence on each property, make a finding as to compensation for that property, and then proceed to value the appropriation of the next property.

{¶8} A jury trial was held on October 9-11, 2018.[6] The jury heard testimony from the landowners as to what they felt they were owed in compensation, and then the jury heard from the commissioners' appraiser. Ultimately the jury awarded the Weis family $10, 000, consistent with the commissioners' appraisal, and the jury awarded the Maag family $6, 755 consistent with the commissioners' appraisal.7 Judgment entries finalizing the verdicts were filed January 28, 2019, and February 6, 2019, respectively. It is from these judgments that landowners appeal, asserting the following assignments of error for our review.

Assignment of Error No. 1 The trial court erred by refusing to dismiss the commissioners' applications for appropriation for failure to meet the requirements of R.C. 163.04 and R.C. 163.041.

Assignment of Error No. 2 The trial court erred by determining the "date of take" was May 31, 2012.

Assignment of Error No. 3 The trial court erred by ordering all of the landowners' jury trials be consolidated.

Assignment of Error No. 4 The trial court erred when it conditioned a new trial date on the landowners waiving their constitutional right to separate trials and challenging the consolidation of jury trials.

Assignment of Error No. 5 The trial court erred when it excluded the landowners' witness Robert Hunt in rebuttal.

{¶9} For ease of discussion we elect to address some of the assignments of error out of the order in which they were raised.

Second Assignment of Error

{¶10} In landowners' second assignment of error, they argue that the trial court erred by determining that the "date of the take" was May 31, 2012, approximately when construction to widen Road 5 began. Specifically, landowners contend that while the Road 5 construction began on May 31, 2012, having their land valued as of the date of an "illegal take"8 is unjust, and the date of the take should have been set later, particularly when "valid" applications for appropriation had been filed by the commissioners.

Standard of Review

{¶11} The determination of the "date of the take" in an appropriation action is an issue of law that we review de novo. Ohio Dept. of Nat Resources v. Thomas, 3d Dist. Mercer No. 10-16-05, 2016-Ohio-8406, ¶ 68.

Analysis

{¶12} The Supreme Court of Ohio has specifically set guidelines for determining the "date of take" for valuation purposes in appropriation actions. "It is recognized in this state that property taken for public use shall be valued as of the date of trial, that being the date of take, unless the appropriator has taken possession

prior thereto, in which event compensation is determined as of the time of the taking." (Emphasis added.) Director of Highways v. Olrich, 5 Ohio St.2d 70, 72, (1966) citing In re Appropriation for Highway Purposes, 167 Ohio St. 463 (1958); Nichols v. City of Cleveland, 104 Ohio St. 19 (1922); Board of Education of Cleveland City School Dist. V. Hecht, 102 Ohio App. 521 (8th Dist.1955); In re Appropriation of Easement for Highway Purposes, 90 Ohio App. 471 (2d Dist.1951).9

{¶13} Based on the explicit language of the Supreme Court of Ohio in Olrich, where an appropriating authority has taken possession of land prior to trial, the appropriated land should be valued at the time of the taking. Here it is essentially undisputed that the Road 5 project commenced May 31, 2012, and was finished in October of 2012. The trial court determined that 2012 was the proper time for the take because it was when the commissioners "came upon [landowners'] property to complete the widening of County Road 5." (Doc. No. 191). The trial court's determination is in clear compliance with the Olrich holding.

{¶14} Nevertheless, landowners contend that the commissioners essentially unlawfully occupied the land for Road 5 from May 31, 2012, until the time of trial, and...

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