State, Dep't of Nat'l Res. v. Mark L. Knapke Revocable Living Trust
| Decision Date | 09 February 2015 |
| Docket Number | No. 10–13–25.,10–13–25. |
| Citation | 28 N.E.3d 667 |
| Parties | State of Ohio, DEPARTMENT OF NATURAL RESOURCES, Plaintiff–Appellant, v. Mark L. KNAPKE Revocable Living TRUST, et al., Defendants–Appellees. |
| Court | Ohio Court of Appeals |
Scott D. Phillips, West Chester, and Frank J. Reed, Jr., Columbus, for appellant.
Bruce L. Ingram and Thomas H. Fusonie, Columbus, for appellees.
SHAW
, J.
{¶ 1} Plaintiff-appellant State of Ohio, Department of Natural Resources (“ODNR”) appeals the November 21, 2013 judgment of the Mercer County Common Pleas Court entering a jury's award of $293,250 to the defendants-appellees Mark L. Knapke Revocable Trust, et. al.1 for ODNR's appropriation of a permanent flowage easement on the Knapke farm.
{¶ 2} The facts relevant to this appeal are as follows. Mark Knapke purchased 34.5 acres of farmland in Mercer County, Ohio, from his nephew Chad Knapke in 2003. Mark subsequently transferred the Knapke farm into the Mark L. Knapke Revocable Trust.
{¶ 3} Due to a spillway modification to Grand Lake Saint Marys (“GLSM”) flooding increased on the Knapke farm shortly after it was purchased by Mark. In 2009, the Knapkes and other landowners who were impacted by the increased flooding that resulted from the GLSM spillway modification filed a complaint for a writ of mandamus with the Ohio Supreme Court seeking an order to compel ODNR and its Director to initiate appropriation proceedings for the taking of their property. Ultimately the Ohio Supreme Court determined a taking had occurred and ordered ODNR to commence appropriation proceedings for a permanent flowage easement. See State ex rel. Doner v. Zody, 130 Ohio St.3d 446, 2011-Ohio-6117, 958 N.E.2d 1235
.
{¶ 4} Following the Ohio Supreme Court's decision, with respect to this case, on November 27, 2012, ODNR filed a Petition to Appropriate Flowage Easement and to Fix Compensation for the Knapke farm. (Doc. No. 3). On December 19, 2012, the Knapkes filed their answer contending that ODNR had not made a good faith offer for the permanent flowage easement, and therefore demanded a jury trial. (Doc. No. 9).
{¶ 5} Since the parties ultimately disagreed as to the value of the flowage easement the case was set for a jury trial for a jury to determine the value of the appropriation. The extent of the take was not to be determined by the jury. The only determination to be made by the jury at trial was the compensation to the Knapkes for the flowage easement. The Knapkes were to be compensated for the difference between the value of the Knapke farm before and after the flowage easement. Pursuant to R.C. 163.09
neither party had a burden of proof when determining the value of the appropriation. The jury was simply required to evaluate the evidence and reach a consensus as to the value.
{¶ 6} The jury trial was held October 2, 2013, through October 4, 2013. At trial Mark Knapke testified that he bought the 34.5 acre farm as a retirement investment from his nephew, Chad Knapke, in 2003 for $110,500. When he purchased the land, Mark also agreed to allow his nephew Chad to continue farming the land.
{¶ 7} Mark testified that to his knowledge, there was little flooding on the farm prior to his purchasing it in 2003. (Tr. at 130–131). However, Mark testified that after he had purchased the property the farm had experienced flooding in seven of the ten years he had owned it. (Tr. at 133).
{¶ 8} Specifically, Mark testified that in 2003, the first year he owned the land, all 34.5 acres were flooded to the extent that the land was covered in water at least 5 to 6 feet deep, and that he could not access the farm because the surrounding roads were shut down due to high water. (Tr. at 136). The flooding also killed the crops that had been planted that year.
{¶ 9} Mark testified that the entire farm was again flooded in the Winter of 2005 with several feet of water on the farm for a week to ten days. (Tr. at 136). Mark testified that the property also flooded in the Spring of 2007, Fall of 2008, Spring of 2009, in 2010, and in late Winter/early Spring of 2011. (Tr. at 137–138). According to Mark the flooding in 2011 covered all of the land for multiple weeks. (Tr. at 140). Mark also testified that the land flooded in the Spring of 2013. (Id. at 141). Mark testified that the flooding carried debris onto the Knapke farm and that he received no assistance for the cleanup resulting from GLSM flooding. (Tr. at 146–47, 153).
{¶ 10} Chad Knapke also testified at trial. Chad testified that he and his wife received what is now the Knapke farm in 2000 from Chad's wife's family. (Tr. at 176). Chad testified that he started farming the land in 2000 and did not observe any flooding prior to 2003. (Tr. at 177). Chad testified that he sold the Knapke farm to Mark in 2003 for less than market value in part because he wanted to keep farming it. (Tr. at 179).
{¶ 11} Chad testified that in 2003 they got no crops off of the flooded portion of the land. (Tr. at 183). He also testified that as a result of the flooding he had to use a boat to get on and off the Knapke farm. (Tr. at 182). Chad testified to extensive floods in 2005 and 2011 where the water became eight to ten feet deep and was on the property from 14 to 21 days. (Tr. at 185, 189). He also testified that in the Spring of 2013 the land flooded for 7–10 days at four to six feet deep, and that there was flooding in other years, specifically 2008, 2009, and 2010. (Tr. at 186, 190).
{¶ 12} In addition, Chad testified that as a result of the flooding the Knapke farm at times reeked of sewage, that there were fish, ducks, and geese on the property, including fish and other animal carcasses that would get trapped on the farmland as the water receded. (Tr. at 185). Chad further testified that trash and debris were carried onto the land by the flood water, including car tires, corn stalks, pop cans, plastic pieces, and large branches. (Tr. at 185–189). Chad testified that he has had three-foot piles of debris that he has had to dispose of, which required him to burn, or break the debris apart after getting a loader to pick the trash up or haul it off to a landfill. (Tr. at 193). Chad also testified that as a result of the flooding there was a greater risk of tile blowouts, and lower yields on the crops. (Tr. at 194–195). Chad testified that due to soil compaction resulting from the flooding he had to perform extra work to “chisel” the soil and “break it back up.” (Tr. at 192).
{¶ 13} The Knapkes' expert, Richard Vannatta, then testified at trial as to his appraisal of the Knapke farm. Vannatta testified as to his qualifications as an appraiser and how he formed his opinions as to the value of the Knapke farm. Ultimately Vannatta testified that the value of the Knapke farm prior to the flooding/flowage easement was approximately $505,800, and that the current value of the Knapke farm with the permanent flowage easement was $50,600. Thus Vannatta testified that the Knapkes' were owed the difference between those two amounts—$455,200—for ODNR's appropriation of a permanent flowage easement. (Tr. at 283). Vannatta's report containing his findings was introduced into evidence.
{¶ 14} After Vannatta's testimony was concluded, the Knapkes rested their case. ODNR objected to the inclusion of some of the photographs in Vannatta's report, including photographs of the GLSM spillway, neighboring roads/properties, and photographs of a news clipping detailing a girl who nearly drowned as a result of GLSM flooding. ODNR's objections were overruled.
{¶ 15} In ODNR's case-in-chief, ODNR called its own expert, Thomas Horner, who testified as to his qualifications and how he formed his opinions on the value of the Knapke farm. Ultimately Horner testified that the Knapke farm prior to the flooding and appropriation was worth $345,600, and after the appropriation was worth $261,100. (Tr. at 378, 396). So according to ODNR's expert, the Knapkes were owed $84,500. Horner's report was also introduced into evidence.
{¶ 16} Before ODNR rested its case, ODNR stated that it wished to call another witness who would testify to changes in lake-level management since 2011. The court excluded the testimony of this witness, partly on the basis that the witness's testimony would go to the extent of the take, which was not an issue for the jury, rather than the value of the flowage easement, which was the sole issue for the jury's determination. ODNR summarily proffered the proposed witness's testimony and then rested its case. (Tr. at 462–463).
{¶ 17} Following closing arguments and jury instructions, the case was submitted to the jury. The jury returned a verdict for the Knapkes to receive $293,250 for the flowage easement.
{¶ 18} A final judgment entry was entered in this case on November 21, 2013. It is from this judgment that ODNR appeals, asserting the following assignments of error for our review.
{¶ 19} As ODNR contends that that errors committed by the trial court cumulatively constituted prejudicial error and thus deprived ODNR of a fair trial, we will address the assignments of error together.
{¶ 20} In ODNR's first assignment of error, ODNR contends that the trial court erred by refusing to grant its request for the jury to view the Knapke farm. In ODNR's second assignment of error, it contends that the trial court erred by permitting “prejudicial exhibits and testimony” while also erroneously excluding testimony of a proffered witness of ODNR. In ODNR's third assignment of error, ODNR contends that the trial court erred by providing prejudicial...
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