Dep't of Transp. v. Jay Butmataji, LLC

• Decision Date: 07 August 2018
• Docket Number: No. COA17-689,COA17-689
• Citation: 260 N.C.App. 516,818 S.E.2d 171
• Court: North Carolina Court of Appeals
• Parties: DEPARTMENT OF TRANSPORTATION, Plaintiff, v. JAY BUTMATAJI, LLC; Byrd, Byrd, Ervin, McMahon & Denton, P.A., Trustee; Mukti, Inc., BB&T Collateral Service Corporation, Trustee, and Branch Banking and Trust Company, Defendants.

260 N.C.App. 516

818 S.E.2d 171

DEPARTMENT OF TRANSPORTATION, Plaintiff,

v.JAY BUTMATAJI, LLC; Byrd, Byrd, Ervin, McMahon & Denton, P.A., Trustee; Mukti, Inc., BB&T Collateral Service Corporation, Trustee, and Branch Banking and Trust Company, Defendants.

No. COA17-689

Court of Appeals of North Carolina.

Filed: August 7, 2018

Attorney General Joshua H. Stein, by Assistant Attorney General Kevin G. Mahoney, for the State.

Sigmon, Clark, Mackie, Hanvey & Ferrell, P.A., Hickory, by Forrest A. Ferrell, and Andrew J. Howell, for defendant-appellant Jay Butmataji LLC.

STROUD, Judge.

Defendant appeals the trial court's judgment awarding him $150,000 as just compensation for the taking of his property by the Department of Transportation. Because the trial court did not abuse its discretion in excluding portions of defendant's appraiser's testimony and appraisal report which valued the taking of a temporary construction easement assuming conditions during construction which did not exist, we affirm.

I. Background

On 10 May 2011, plaintiff Department of Transportation ("DOT") instituted this action against defendant landowner Jay Butmataji LLC, trustees, and Branch Banking and Trust Company.¹ DOT had condemned and appropriated a portion of defendant's property in Burke County upon which it operated a motel. DOT took 0.184 acres of defendant's 3.573 acres of property. DOT described the taking as a temporary construction easement ("TCE") to widen a highway.² Defendant Butmataji answered DOT's complaint and requested a jury trial to determine just compensation for the taking.

Before the trial, DOT made a motion in limine requesting the trial court

to instruct all parties, their counsel, and witnesses not to mention state, or intimate any of the matters listed below by statement, question, or argument in the presence of the jury or the jury panel without first approaching the Court of the hearing of the jury and securing a ruling regarding the same[.]

In its motion, DOT listed several matters subject to the motion in limine. Before trial began, on 9 August 2016, the trial court considered the motion in limine and the parties addressed at length their contentions about the appropriate evidence for the jury to consider.

Defendant owned and operated a motel on the property and contended ingress and egress to his business was limited by the TCE during the construction of the road. The State argued that the appraisal prepared by Mr. Damon Bidencope, defendant's expert witness, included valuation of loss of income to the motel and elements of damages not supported by the actual conditions of the property during construction. The State argued, "[C]ases are very clear, that you are not allowed loss of rent. It's only the rent of that particular piece of the easement, not loss of rent from your business, even though this is a motel, Your Honor. You're just not allowed. It's very, very clear." Defendant's attorney countered,

[W]e're entitled to present evidence through Mr. Bidencope and through our witnesses of the effect that this temporary construction easement had on the remainder of the property, because that's what the law says we can do.

....

So we contend we're wholly entitled to put on that evidence and that Mr. Bidencope's appraisal addresses that in a[n] accurate manner. Now, if they want to take Mr. Bidenquote—cope on voir dire and address it at that time, that's fine, Your Honor. But we wholly don't think you should exclude it at this time in any limited phase.

Mr. Bidencope then testified at length on voir dire.

The trial court granted the State's motion in limine in part and excluded the portion of Mr. Bidencope's appraisal entitled "Building Rent Lost During TCE[,]" approximately two to three pages of the 91 page appraisal.³ The trial court later clarified its ruling for defendant as follows: "He can testify as to the [a]ffect of the TCE on the remainder of the property, but not as to the taking of the entryway." The only question before the jury was the amount of just compensation defendant should receive. The jury determined damages of $150,000.00, and the trial court entered judgment accordingly. Defendant appeals.

II. Exclusion of Testimony

Defendant's only argument on appeal is that "the trial court erred in granting plaintiff DOT's motion in limine to exclude defendant landowner's expert appraiser Damon Bidencope's testimony concerning the effects of the temporary construction easement on the remainder of the defendant landowner's property." (Original in all caps.) "The standard of review for a trial court's ruling on a motion in limine is abuse of discretion." Kearney v. Bolling , 242 N.C. App. 67, 78, 774 S.E.2d 841, 849 (2015), disc. review denied , ––– N.C. ––––, 783 S.E.2d 497 (2016). "A trial court abuses its discretion where its ruling is manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision." City of Charlotte v. Combs , 216 N.C. App. 258, 262, 719 S.E.2d 59, 63 (2011) (citation and quotation marks omitted).

Defendant's argument focuses on Daubert v. Merrell Dow Pharmaceuticals , Inc. , 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed. 2d 469 (1993) and Rule 702 of the Rules of Evidence regarding an expert witness's qualification to testify; defendant argues "the trial court's ruling was, in effect, a determination that Mr. Bidencope's testimony on the TCE's effect on the remainder of the property was not admissible expert testimony." But defendant misconstrues the trial court's ruling. Mr. Bidencope was not excluded as an expert witness, and he actually testified at length to the jury about the portions of the appraisal not at issue here. Defendant's argument stresses Mr. Bidencope's qualifications and his methodology, but there was really no question as to his qualifications and no question that he used recognized methodologies in valuing the property generally. Defendant's argument assumes that once a witness has been properly qualified as an expert, he may testify to anything within his expertise, but that is simply not the case. Neither experts nor lay witnesses may testify unfettered by the rules of evidence and law applicable to the subject of their testimony. Furthermore, in condemnation cases, the trial court must also consider whether the appraiser's opinion is based upon the correct factual basis and whether the appraisal is based upon any element of damages not considered as a proper consideration for that type of case. See Department of Transp. v. M.M. Fowler, Inc. , 361 N.C. 1, 6, 637 S.E.2d 885, 890 (2006) ("An opinion concerning property's fair market value must not rely in material degree on factors that cannot legally be considered.").

From reviewing the transcript of the voir dire, arguments, and colloquy with the trial court, it appears the trial court's concern focused on two aspects of the appraisal. First, Mr. Bidencope valued the "Building Rent Lost During TCE" on the assumption that the actual physical access to the motel was cut off or may be cut off at any time during the 5.1 year period of the construction project. Second, Mr. Bidencope used the loss of income from rental of rooms during the TCE as a portion of his opinion of damages.

Defendant's argument conflates the measure of damages for the permanent partial taking—the portion of the property which was taken—with the damages for the temporary construction easement—damages arising from the actual construction period. For the permanent partial taking, just compensation is based upon the fair market value of the property just before the taking as compared to the value immediately after the taking, assuming the project has been completed as designed. See Barnes v. Highway Commission , 250 N.C. 378, 387, 109 S.E.2d 219, 227 (1959) ("When the property is appropriated by the State Highway Commission for highway purposes, the measure of damages is the difference between the fair market value of the entire tract of land immediately before the taking and the fair market value of what is left immediately after the taking."). In other words, damages are based upon a legal fiction that the project as planned has been completed immediately after the condemnor acquires the property. See generally id . The highest and best use and fair market value of the property in its condition immediately before the taking is compared to the highest and best use and fair market value of the remainder immediately after the taking as if the project were complete. See generally Barnes , 250 N.C. 378, 109 S.E.2d 219. This measure of damages skips over the construction period, if any, and any temporary interference with use of the remaining property during construction. The interference with the property during construction is compensable, but the method of valuation is a bit different. See generally Combs , 216 N.C. App. at 261-62, 719 S.E.2d at 62-63.

The only valuation issue in this case is for the temporary construction easement, so the law regarding valuation for a permanent partial taking does not apply. Damages for the temporary construction easement are based upon the same general principles of valuation as for the permanent taking, but the legal fiction of immediate completion of the project does not apply; this measure of damages considers interference with the property's use during the construction, but not the impact of the project as completed on the remaining property's value as a whole. See generally id. This Court summarized the law regarding the measure of damages for a temporary taking of a construction easement in Combs :

A temporary taking, which denies a landowner all use of his or her property for a finite period, is no different in kind from a permanent taking, and requires just compensation for the use of the land during the period of the taking.

Generally, the measure of damages for a temporary taking is the rental value of the land actually occupied by the condemnor.

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