Ota v. George Abdo Trust Dated 10-15-74, 100,185.
| Decision Date | 06 September 2005 |
| Docket Number | No. 100,185.,100,185. |
| Citation | 130 P.3d 751,2006 OK CIV APP 11 |
| Parties | OKLAHOMA TRANSPORTATION AUTHORITY, Formerly the Oklahoma Turnpike Authority, a Body Corporate and Politic, Plaintiff/Appellee, v. The GEORGE ABDO TRUST DATED 10-15-74; George Abdo and Nasib Abdo, Trustees of the George Abdo Trust Dated October 15, 1974; and John F. Hausam, Defendants/Appellants, and Elaine Koury Abdo, as Personal Representative of the Estate of Nezera Sader Koury, a/k/a Nezera Koury, Deceased; Dorothea Beatrice Rozen and Meyer Rozen, as Co-trustees of the Dorothea Beatrice Rozen Trust Under Indenture Dated April 22, 1980; Nasib G. Abdo; Paul Elic Chartouni; Mark A. Abdo; The State of Oklahoma, ex rel. Oklahoma Tax Commission; Ruth Ann Righter; The Board of County Commissioners of The County of Tulsa; The Treasurer of Tulsa County, Oklahoma; and Their Successors, Defendants. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma |
Appeal from the District Court of Tulsa County, Oklahoma; Honorable Doris L. Fransein, Trial Judge.
AFFIRMED.
Jot Hartley, The Hartley Law Firm, PLLC, Jay, OK, for Appellee.
Robert J. Nichols, Brian A. Curthoys, Tulsa, OK, for Appellants.
Opinion by JERRY L. GOODMAN, Presiding Judge.
¶ 1 Appellants George Abdo Trust and John Hausam (Landowners) appeal the trial court's November 25, 2003, order denying their motion for a new trial following the trial court's journal entry of judgment on a jury verdict filed March 25, 2003. Landowners contend the trial court erred in this condemnation action by failing to bifurcate the trial and in certain of its evidentiary rulings. Based upon our review of the facts and applicable law, we affirm.
FACTS
¶ 2 The Oklahoma Transportation Authority (OTA) attempted to purchase a 15.85 acre portion of Landowners' Tulsa County real property for $271,600.00 as part of a turnpike construction project. Landowners refused the offer and court-appointed commissioners determined the value of the taking to be $589,864.00. This figure included both the fair market value of the actual taking, plus the damage to the remainder of the land not taken. The date of taking was May 21, 1999. A jury trial was requested by both parties.
¶ 3 Prior to trial, both sides filed motions in limine. Landowners' September 10, 2002, motion sought to bifurcate the trial. The proposed first trial would be on the issue of damages stemming from the taking of the 15 acres. The second trial would address whether or not Landowners' remaining 62 acres would be benefitted by the taking, and thus receive a "special and direct benefit" to the property. Landowners alleged OTA intended to sponsor a witness who would testify that despite Landowners' loss as to the 15 acres taken, the benefit they would receive to the remainder was valued in excess of one million dollars. Landowners were concerned that a jury would be confused and prejudiced if evidence of both the damages and the benefits were introduced into the same trial, and might lead to Landowners receiving less than the full amount of the value of the taking. The trial court denied this motion.
¶ 4 OTA's motion in limine sought to prevent the introduction of Landowners' evidence of a comparable sale of certain real property in the same geographic area which took place after the date of the taking. The trial court granted this motion.
¶ 5 A jury trial was held February 3, 4, and 6, 2003. The jury returned a verdict awarding Landowners $280,000.00 for the value of the taking, and $55,000.00 for the value of the damage to the remainder, for a total award of $335,000.00. This was $250,000.00 less than the commissioners' award, but $63,400.00 more than OTA's initial offer. Landowners filed a motion for new trial on April 4, 2003, which was denied in an order filed November 25, 2003. Landowners appeal.
ISSUES
Bifurcation
Generally, it is within the discretion of the trial court to bifurcate a trial. The court may order a separate trial of any issue upon proper motion by a party and the exercise of discretion will be disturbed only for clear abuse. Faulkenberry v. Kansas City Southern Ry. Co., 1983 OK 26, 661 P.2d 510, (Cert.denied) 464 U.S. 850, 104 S.Ct. 159, 78 L.Ed.2d 146 (1983)....
Fisher v. Northland Ins. Co., 2001 OK CIV APP 47, ¶ 4, 23 P.3d 296, 298.
¶ 6 Landowners cite Art. 2, § 24 of the Oklahoma Constitution, which states in part:
Private property shall not be taken or damaged for public use without just compensation. Just compensation shall mean the value of the property taken, and in addition, any injury to any part of the property not taken. Any special and direct benefits to the part of the property not taken may be offset only against any injury to the property not taken.... (Emphasis added.)
Similar language is found in 27 O.S.2001, § 16(B) which defines "just compensation."
¶ 7 Landowners cite this provision as a reason for bifurcation. They argue that to present a jury with the issue of determining the value of the property taken and the issue of the value of the property not taken would, after evaluating both damage and benefit, confuse a jury; thus, bifurcation is required. Landowners cite no other Oklahoma authority in support of their position that they are entitled to a bifurcated trial on this issue.
¶ 8 OTA argues there is no showing by Landowners that the jury is incapable of distinguishing those issues. OTA contends Oklahoma Uniform Jury Instruction (OUJI) No. 25.3 instructs the jury to value not only the property taken, but that not taken. Further, OUJI No. 25.7 instructs the jury to return one lump sum award. Thus, OTA argues the OUJI instructions do not contemplate a bifurcated trial in condemnation actions. Finally, OTA argues that to bifurcate the trial would require testimony as to the value of the taking of the subject property and then require additional, duplicate testimony as to the value of the property not taken. This would require relitigation of the issues, such as comparable sales and expert qualifications. Thus, bifurcation would result in the inefficient use of court resources rather than promoting judicial efficiency.
¶ 9 After reviewing the record, we conclude the trial court did not abuse its discretion in denying Landowners' motion to bifurcate the trial. Landowners were awarded $55,000.00 for damages to the remaining 62 acres not taken. The trial court specifically instructed the jury as follows:
In determining the injury to the remaining property, you may subtract any increase in its value that will result from any features of the project that will benefit the remaining property; however, the increase in value to the remaining property can never exceed the damage to it. In other words, you may offset an increase in the value of the remaining property against any injury to the remaining property, but you may not offset an increase in the value of the remaining property against the value of the property that was taken.
¶ 10 This instruction tracks the language of Article 2, § 24 and 27 O.S.2001, § 16(B). We find no merit to this proposition of error.
Comparable Sale
We conclude that whether or not evidence of comparable sales should be submitted to the jury is a matter directed largely to the trial court's discretion and that the ruling of the trial court will not be grounds for reversal or disturbed unless there has been an abuse of discretion. Thus, finding no abuse of discretion in the instant case, we will not reverse. See Wichita Falls & N.W. Ry. Co. v. Holloman, 28 Okl. 419, 114 P. 700; City of Tulsa v. Horwitz, 131 Okl. 63, 267 P. 852; Kelly v. Oklahoma Turnpike Authority, 269 P.2d 359 (Okl.1954); Owens v. Oklahoma Turnpike Authority, [283 P.2d 827 (Okl.1954)], supra; State ex rel. Dept. of Highways v. Robb, 454 P.2d 313 (Okl.1969).
McAlester Urban Renewal Authority v. Lorince, 1973 OK 148, ¶ 16, 519 P.2d 1346, 1350.
¶ 11 Landowners contend the trial court erred when it refused to allow the jury to consider what the parties refer to as the "Neel sale." The Neel sale was the sale of real property immediately north of, and adjacent to, the subject property. The Neel property was the same size as the subject property, and they both fronted the same section line road. The Neel property was not involved in any taking, and cannot be seen from the turnpike. This property was sold at an arms-length transaction for $1,152,272.73. The seller executed the contract on August 18, 1999, but the contract was not closed until October 15, 1999, over six months after the May 21, 1999, date of taking of the subject property.
¶ 12 Landowners contend they should have been able to introduce the terms of the Neel sale as a comparable sale price to determine the value of their property. Citing the factors that the properties are similar in size, location, shape, and have common frontage and road access, Landowners sought to introduce the Neel sale as evidence of the value of their property. OTA objected, arguing that the Neel sale took place after the date of OTA's taking of the subject property. OTA contends the sale price was inflated because it was influenced by the turnpike project. OTA contends because the Neel property benefitted from its now close proximity to the turnpike, its sale price was not an accurate reflection of the comparable value of the subject property, and is thus inadmissible. The trial court agreed and excluded...
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...to the date of taking are admissible and are often used to aid a fact-finder in determining value. See Oklahoma Transp. Auth. v. George Abdo Trust, 2006 OK CIV APP 11, 130 P.3d 751. “[T]he value of land or interest in realty at a particular time may as a general rule be proved by evidence o......
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