Oklahoma Transp. Authority v. Turner

• Decision Date: 31 October 2007
• Docket Number: No. 103,187. Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 2.,103,187. Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 2.
• Citation: 183 P.3d 168,2008 OK CIV APP 31
• Parties: OKLAHOMA TRANSPORTATION AUTHORITY, formerly the Oklahoma Turnpike Authority, a body corporate and politic, Plaintiff/Appellee, v. Richard Leon TURNER and Dorothy Frances Turner, trustees of the Turner Family Revocable Trust dated June 28, 1993; the Board Of County Commissioners of the County of Wagoner; the Treasurer of Wagoner County, Oklahoma; and their successors, Defendants/Appellants.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

183 P.3d 168

2008 OK CIV APP 31

OKLAHOMA TRANSPORTATION AUTHORITY, formerly the Oklahoma Turnpike Authority, a body corporate and politic, Plaintiff/Appellee, v. Richard Leon TURNER and Dorothy Frances Turner, trustees of the Turner Family Revocable Trust dated June 28, 1993; the Board Of County Commissioners of the County of Wagoner; the Treasurer of Wagoner County, Oklahoma; and their successors, Defendants/Appellants.

No. 103,187. Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 2.

Court of Civil Appeals of Oklahoma, Division No. 2.

October 31, 2007.

Rehearing Denied December 21, 2008.

Certiorari Denied February 25, 2008.

Appeal from the District Court of Wagoner County, Oklahoma; Honorable Bruce G. Sewell, Trial Judge.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION

Jot Hartley, The Hartley Law Firm, Vinita, OK, for Appellee.

Robert J. Nichols, Brian A. Curthoys, Tulsa, OK, for Appellants.

JOHN F. FISCHER, Presiding Judge.

¶ 1 Richard Leon Turner and Dorothy Frances Turner, trustees of the Turner Family Revocable Trust dated June 28, 1993, seek review of the Trial Court's order denying their Motion for New Trial. Based on our review of the record and applicable law, we affirm in part, reverse in part and remand the matter to the Trial Court for further proceedings consistent with this opinion.

BACKGROUND

¶ 2 The Oklahoma Transportation Authority (OTA) is a body corporate and politic, created pursuant to 69 O.S. Supp.2005 § 1703 and authorized to construct, maintain, repair and operate turnpike projects in Oklahoma. See 69 O.S. Supp.2005 § 1701.¹ Prior to 1999, the OTA determined that acquisition of 20.27 acres of real property owned by the Turner Family Revocable Trust located in Wagoner County, Oklahoma (the Property) was necessary for its Creek Turnpike project. Although not required to do so,² the OTA chose to follow the negotiation procedures set out in Title 27, specifically section 13,³ prior to filing a condemnation proceeding. An independent appraiser was selected who determined the value of the "just compensation" due the Turners to be $322,000.⁴ The OTA offered that amount pursuant to 27 O.S.2001 § 13.3. Nonetheless, the Turners rejected that amount, and the OTA's attempt to negotiate a resolution of the matter was unsuccessful.

¶ 3 The OTA then filed a petition to condemn the Property on March 16, 1999. Pursuant to 69 O.S. Supp.2005 § 1708, three commissioners were appointed and subsequently filed their written report finding $600,000 to be the fair market value of the property taken and net damages to the remainder after consideration of any enhancement.⁵ Pursuant to section 1708(b)(1), both parties requested a jury trial.

¶ 4 Prior to trial, the Turners filed a motion in limine seeking to exclude "the introduction of appraisal testimony from any appraiser regarding fair market value less than the actual independent appraisal of $332,000." In the alternative, the Turners' motion requested that, should any such testimony be admitted, they be permitted to introduce the independent appraisal as an admission against party interest. Although it is not clear from the record on appeal, it appears the Trial Court denied the Turners' motion in limine.

¶ 5 At trial, the OTA offered the testimony of two expert witnesses. Appraiser Rick Ellis testified that the fair market value of the land taken was $149,309, and appraiser John Story testified that the fair market value of that land was $78,000.

¶ 6 The Turners objected to the admission of Story's testimony and sought to introduce the independent appraisal, both without success. The jury ultimately returned a verdict for the Turners in the amount of $85,406.20. The Turners filed a timely motion for new trial, raising two issues: (1) whether the Trial Court erred by excluding the independent appraisal, and (2) whether Story's testimony was properly admissible. The Trial Court denied the Turners' motion, and they appeal.

STANDARD OF REVIEW

¶ 7 We review a trial court's denial of a motion for new trial for an abuse of discretion. SMS Fin. L.L.C. v. Ragland, 1995 OK CIV APP 160, ¶ 2, 918 P.2d 400, 402. Such an abuse will be found only where the Trial Court makes a "clearly erroneous conclusion and judgment, against reason and evidence." Bank of Oklahoma v. Portis, 1997 OK CIV APP 32, ¶ 8, 942 P.2d 249, 252. By contesting the Trial Court's admission and exclusion of evidence, the Turners have raised questions of law, which we review de novo. See Nat'l Diversified Bus. Servs., Inc. v. Corp. Fin. Opportunities, Inc., 1997 OK 36 n. 18, 946 P.2d 662, 666 n. 18. Thus, the Trial Court has abused its discretion only where its decision to exclude or include evidence constitutes clear legal error. Id.

DISCUSSION

I. Unfair Surprise

¶ 8 Title 12 O.S.2001 § 651(3) provides that a trial court shall grant a new trial where an "[a]ccident or surprise, which ordinary prudence could not have guarded against," affects the substantial rights of the parties. The Turners contend that the admission of Story's testimony constitutes such a surprise because Story had not finalized his opinion as to the value of the property until the morning of trial. Although neither party contests the truth of this assertion, such does not constitute unfair surprise because ordinary prudence could have guarded against any prejudicial effect of Story's testimony. See Marshall v. Marshall, 1898 OK 68, 54 P. 461 ("New trials on the ground of fraud and surprise are only granted in cases where parties are actually surprised-where fraud has been actually committed, and the party against whom it was practiced could not, with due diligence, have foreseen it, so as to meet it on the trial").

¶ 9 Our review of the record on appeal establishes that Story was listed as an appraisal witness in the pretrial order. The Turners neither filed a motion in limine seeking to exclude Story's testimony nor objected to the inclusion of Story as a witness on the pretrial order. Although the Turners never deposed Story prior to trial, the OTA offered the opportunity to depose him several times. Further, following the Turners' objection to admission of Story's testimony, the Trial Court permitted the Turners to depose Story outside the presence of the jury prior to proceeding. Any unfair surprise contained in Story's testimony could have been readily avoided by the exercise of ordinary prudence on the part of the Turners' attorneys. We hold, therefore, that the Trial Court did not abuse its discretion by permitting Story to testify at trial.

II. Admissibility of the Independent Appraisal

¶ 10 As their second allegation of error, the Turners argue that the independent appraisal was improperly excluded by the Trial Court. They argue it was admissible, either as an admission against party interest, 12 O.S. Supp.2002 § 2804(B)(3), or for impeachment as a prior inconsistent statement, 12 O.S. Supp.2002 § 2613(B). First, it is important to note that the independent appraisal authorized by 27 O.S.2001 § 13 is entirely different from the report of commissioners authorized by 69 O.S. Supp.2005 § 1708. The purpose of the independent appraisal is to establish a value at which to begin negotiations for the acquisition of property prior to any condemnation proceeding. The commissioners' report establishes the amount the condemning authority must pay the land owner before taking possession of the property.

¶ 11 Consequently, our analysis is not directed by those cases from the Oklahoma Supreme Court holding that the commissioners' report is not admissible at a jury trial on the value of the property taken. See, e.g. Oklahoma Turnpike Auth. v. Daniel, 1965 OK 7, 398 P.2d 515; Eberle v. State 1963 OK 224, 385 P.2d 868; Champlin Ref. Co. v. Donnell, 1935 OK 788, 49 P.2d 208. The evidentiary principle expressed in those cases is ultimately derived from St. Louis El Reno & Western Ry. Co. v. Oliver, 1906 OK 111, 87 P. 423. As relevant to this discussion, the issue in Oliver was whether the court could or the jury had to determine the amount of interest awarded to the landowner. In determining that the court could determine the interest amount if it is "but a matter of mathematical computation," the Oliver Court noted that the trial court had "out of commendable precaution refrained from informing the jury of the amount of the award." Id. at ¶ 20 and ¶ 26, 87 P. at 426, 427. The issue on appeal in Oliver was whether a landowner's right to interest depended on whether the jury verdict exceeded the value determined by the commissioners.

¶ 12 The cases excluding such evidence pursuant to syllabus 3 of the Oliver Opinion generally do so without analysis or elaboration. See, e.g. Wichita Falls & N.W. Ry. Co., v. Munsell, 1913 OK 373, ¶ 2, 132 P. 906 ("Over the objection of plaintiff, defendant was permitted to prove the amount of the award made by the [commissioners]. This was error....") (citation to Oliver, omitted). Further, all of these cases predate the enactment of the negotiation procedures established by 27 O.S.2001 § 13. And, there is no Oklahoma appellate decision holding that the independent appraisal authorized pursuant to section 13 is inadmissible. Consequently, we do not find Oliver, Munsell and similar cases dispositive of the issue in this appeal.

¶ 13 The trial in this case was conducted pursuant to section 1708. In addition to providing a right to trial for the parties, that section also provides that "the trial shall be conducted and judgment entered in the same manner as civil actions in the district court." 69 O.S. Supp.2005 § 1708(b)(3). The Oklahoma Evidence Code, 12 O.S.2001 §§ 2101-3009, "shall apply in ... civil proceedings, conducted by or under the supervision of a court, in which evidence is produced." 12 O.S.2001 § 2103. Pursuant to section 2402 of the Evidence Code, "All relevant evidence is...