Fullerton v. Knox County Com'rs, 7574

• Decision Date: 08 March 1996
• Docket Number: No. 7574,Docket No. KNO,7574
• Citation: 672 A.2d 592
• Parties: Dennis M. FULLERTON et al. v. KNOX COUNTY COMMISSIONERS. DecisionLaw95 162.
• Court: Maine Supreme Court

Page 592

672 A.2d 592

Dennis M. FULLERTON et al. v. KNOX COUNTY COMMISSIONERS.

Decision No. 7574.

Law Docket No. KNO 95 162.

Supreme Judicial Court of Maine.

Submitted on Briefs Dec. 20, 1995.

Decided March 8, 1996.

Jessica M. Jensen, Crandall, Hanscom, Pease & Collins, Rockland, for Plaintiffs.

Peter T. Dawson, Augusta, for Defendants.

Before WATHEN, C.J., and ROBERTS, GLASSMAN, CLIFFORD, RUDMAN, DANA, and LIPEZ, JJ.

ROBERTS, Justice.

Dennis M. and Kelli E. Fullerton appeal from the judgment entered in the Superior Court (Knox County, Mills, J.) awarding them $130,000 as compensation for the taking of their property and $3,203.26 for costs. The Fullertons argue that the court erred in failing to award the proper interest on the judgment, in failing to award appropriate travel expenses for their expert witness, and in declining to award attorney fees. Because we agree with one of the Fullertons' contentions, we modify and affirm the judgment.

The Fullertons own a house on a one-acre parcel of land in South Thomaston. In December 1992, following a hearing, the Knox County Commissioners filed a return of doings and order in which they took an avigation and hazard easement over the Fullertons' property to allow for the expansion of the Knox County Regional Airport.

Pursuant to 23 M.R.S.A. §§ 2055 and 2058 (1992) and M.R.Civ.P. 80B, the Fullertons appealed the Commissioners' determination of $35,000 damages to the Superior Court. In November 1994 the court, after a jury-waived trial, determined that the taking of the easements amounted to a direct and immediate interference with the Fullertons' enjoyment and use of the their property. The court awarded the Fullertons the fair market value of the property, $165,000, less the amount already paid for the easements, $35,000, for net compensation of $130,000, plus interest and costs. The Fullertons were directed to convey title to the property to the Commissioners within 90 days of the court's order. The court denied the Fullertons' request for attorney fees and granted only part of their bill of costs. This appeal followed.

We must first address what appears to be a procedural anomaly in the trial court proceedings. The Fullertons' complaint appears to claim both a judicial review of the administrative action of the Knox County Commissioners in taking an avigation easement instead of a taking in fee, as well as a judicial determination of just compensation. The Commissioners' answer explicitly objected to "a review of governmental action under M.R.Civ.P. 80B" and challenged, pursuant to M.R.Civ.P. 12(b)(6), the action against the Commissioners as opposed to the County of Knox. Despite the fact that the court could not require that the Commissioners take full title rather than an easement over the plaintiffs' property and the fact that Knox County is the condemnor, no ruling on either of these issues appears in the record. The trial court nevertheless has ordered the Fullertons to convey their property in fee to the Commissioners upon the Commissioners' payment of the judgment entered for the full value of the Fullerton property. That judgment has not been challenged by the Commissioners. While we express no approval of such a procedure, we will assume, for the purpose of this appeal, that the parties have agreed to the process followed by the trial court.

The Fullertons first contend that they were improperly denied both prejudgment and postjudgment interest pursuant to 14 M.R.S.A. §§ 1602 and 1602-A (Supp.1995). In determining damages, the court applied 6 M.R.S.A. § 122 (1989), the airport property acquisition statute:

All proceedings including the assessment of damages and appeal therefrom shall be the same as is provided by law for laying out, altering and discontinuing town ways.

Following the directive of the airport property acquisition statute, the court then applied 23 M.R.S.A. § 2057 (1992), the relevant highway statute:

[The] Commissioners shall not order such damages to be paid, nor shall any right thereto accrue to [the Fullertons], until the land over which the highway or alteration is located has been entered upon and possession taken for the purpose of construction or use.

The court held that "[a]lthough the taking by the [Commissioners] occurred on 12/30/92, the land has not yet been entered nor has possession been taken for the purpose of construction or use, as required by § 2057 for the accrual of damages. The County will take possession on the dates, pursuant to the judgment, on which the [Fullertons] will convey title to the [Commissioners]." The court determined that interest would not...