Calmat of Arizona v. State ex rel. Miller
| Decision Date | 14 April 1992 |
| Docket Number | No. 1,CA-CV,1 |
| Citation | 836 P.2d 1010,172 Ariz. 300 |
| Parties | CALMAT OF ARIZONA, an Arizona corporation, Plaintiff-Appellant, Cross Appellee, v. STATE of Arizona, ex rel., Charles L. MILLER, Director of Department of Transportation, Defendant-Appellee, Cross Appellant. 89-602. |
| Court | Arizona Court of Appeals |
Snell & Wilmer by Lonnie J. Williams, Jr., Jeffrey Messing, Phoenix, for plaintiff-appellant, cross appellee.
Grant Woods, Atty. Gen. by Joe Acosta, Jr., Asst. Atty. Gen., Phoenix, for defendant-appellee, cross appellant.
On February 13, 1992, this court filed an opinion in this matter which reversed and remanded the judgments and granted the cross-appeal. A review of both appellant's and appellee's motions for reconsideration and the responses thereto suggest we need to address the confusion about the remand due to the granting of the state's cross-appeal. The parties are correct in pointing out to the court that the state, in its cross-appeal, asks for a remand for a new trial on the riverbed issue only in CV 87-17569 and not in C-555355. We have amended the opinion accordingly by issuing this supplemental opinion and vacating the opinion filed on February 13, 1992. In all other respects both parties' motions for reconsideration are denied.
This appeal arises from condemnation proceedings. Calmat of Arizona ("Calmat") received jury verdicts awarding it damages from the State of Arizona in each of two condemnation proceedings that had been consolidated for trial. The jury awarded damages for the property taken in one case and awarded severance damages in the other. In the action for severance damages (C-555355), the trial court subsequently concluded that Calmat had failed to produce evidence to establish the proper measure of severance damages and, accordingly, entered judgment notwithstanding the verdict for the state. In the other action (CV 87-17965), the trial court granted the state a new trial because it concluded that the jury's verdict was based on an incorrect ruling by the court regarding the time of valuation of the property.
Calmat appeals, arguing that the trial court erred in granting judgment notwithstanding the verdict in the one case and a new trial in the other. On cross-appeal, the state argues that, even if this court reverses the trial court's rulings, the state should be allowed a new trial in CV 87-17569 in order to challenge ownership of the portions of the property located in the Salt River bed, which the trial court previously prevented it from doing.
The state needed property owned by Calmat for two separate construction projects related to its freeway system in Phoenix. One project was the construction of a drainage system for the inner loop of the freeway. The other project was the widening of the I-10 bridge that crosses the Salt River bed near 24th Street in Phoenix.
On September 13, 1985, the state filed its condemnation action in Maricopa County Superior Court Cause No. C-555355 to condemn a portion of a larger parcel of land Calmat owned in the vicinity of 20th Street and University Avenue in South Phoenix. This portion was needed for the inner loop drainage project. The state posted a bond and took immediate possession of the property in March of 1986, pursuant to court order as authorized in Ariz.Rev.Stat.Ann. ("A.R.S.") section 12-1116. The remaining portion of Calmat's property, which was not taken, was being used by Calmat to mine sand and gravel.
Prior to trial, the parties reached an agreement that the state would pay Calmat $2.75 per square foot for the property it took, amounting to a sum of $1,170,762. The settlement was made without prejudice to Calmat's right to seek recovery for severance damages to the remainder of its property. Eventually, the parties also agreed to settle certain aspects of the severance damage claim--i.e., the damages Calmat suffered in raising the banks of the drainage channel and in increased hauling costs--for a sum of $134,171. The issues remaining for trial on Calmat's severance damage claim, then, were whether the remaining portion of property had decreased in value because of the taking and, if so, in what amount.
In October of 1985, the state had also filed a condemnation action in Maricopa County Superior Court Cause No. C-557965 to acquire the portions of Calmat's property on either side of the I-10 bridge, which it needed for its widening project. In December of 1985, the state posted its bond and took immediate possession of the property pursuant to court order. It proceeded to use the property to widen the bridge and the freeway lanes going across the bridge. The state took no further action to bring the suit to trial, however, and the case was eventually dismissed for lack of prosecution on November 5, 1986.
Eight months later, after nothing more had been done to compensate Calmat for this property, Calmat filed an action in inverse condemnation in Maricopa County Superior Court Cause No. CV-87-17569. Only then did the state attempt to have its condemnation suit in C-557965 reinstated, but the court in that action denied the state's motion. Realizing that the state, in the inverse condemnation suit, might try to have the property valued as of the date when it filed the original condemnation action or as of the date when it took physical possession of the property, Calmat filed a motion in limine seeking to have the property valued as of the date the summons was issued in the inverse condemnation suit.
The trial court granted the motion in limine finding that A.R.S. section 12-1123, which mandates that the valuation date be the date of the issuance of the summons, was applicable to inverse condemnation actions as well as condemnation actions brought by the state. The trial court stated that any windfall Calmat might receive due to having a 1987 valuation date, rather than a 1985 date, was justified because the state could have avoided the situation by diligently prosecuting the original action.
Calmat also filed another motion in limine to prevent the state from claiming that it owned any portion of Calmat's property located in the Salt River bed. Calmat argued that the state waited too long to The state's suit to determine severance damages in C-555355 and Calmat's suit for inverse condemnation in CV-87-17569 were consolidated and proceeded to trial before a jury. In the severance damages action, the state filed a motion for directed verdict, claiming that Calmat had failed to produce any evidence from which a proper determination could be made as to whether the state caused any severance damage to the remaining portion of Calmat's property by the taking of the other portion of the parcel for the inner loop drainage project. The trial court denied this motion. The jury then returned a verdict for Calmat, assessing the state severance damages in the amount of $434,746.50.
[172 Ariz. 303] disclose what its experts would say to try to establish such a claim, and failed to timely supplement Calmat's request for interrogatory answers. Calmat also argued that the state was estopped from claiming ownership of the Salt River bed because of inconsistent positions it had taken in various prior lawsuits, including the original action the state had filed to condemn this same property. In that suit the state's complaint had alleged Calmat to be the owner of the property, and the state made no claim of ownership. The trial court granted this motion in limine "for any and all of the reasons raised in plaintiff's Motion and Reply including estoppel and belatedness of disclosure." The state has filed a cross-appeal from this ruling by the trial court
In the inverse condemnation action, the jury was instructed to value the property as of June 1987. The jury made an award of $6.71 per square foot for the 245,389 square foot parcel lying on one side of the freeway, for a total award of $1,646,560.10. The jury awarded $1.00 per square foot for the 55,625 square feet of property lying on the other side of the freeway in the river bottom, for a total award of $55,625. These sums were to be awarded in addition to the sum of $546,000 that the parties had agreed during trial would be paid to Calmat for its lost ability to lease two commercial billboard signs on its remaining property following the state's taking.
The trial court entered formal judgments for the sums the jury had awarded plus the additional sums upon which the parties had reached agreement. At the same time the trial court issued a lengthy minute entry order expressing its concern that the totality of the circumstances may have resulted in substantial injustice to the state. The court invited the filing of post-trial motions by the state. The court indicated that it was concerned with "1) the adequacy of representation afforded the State by its counsel in these cases, 2) the over-reaching by Calmat and its counsel in these cases, and 3) the correctness of the Court's ruling that the valuation date for the I-10 property was June 25, 1987." The court questioned whether the net effect of the jury verdicts on some issues, along with the settlement of other issues, had resulted in an overpayment by the state. The trial court also remarked that the extent of the apparent windfall to Calmat caused by the 1987 valuation date led it to question the propriety of its ruling on that issue.
Thereafter, the state filed a motion for judgment notwithstanding the verdict in the action for severance damages. The state's motion argued, inter alia, that Calmat had presented insufficient evidence to support a finding of severance damages by failing to present a before-and-after comparison of value. The state filed a motion for new trial in the inverse...
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