State, Dep't of Nat'l Res. v. Ebbing

• Decision Date: 09 February 2015
• Docket Number: No. 10–13–24.,10–13–24.
• Citation: 28 N.E.3d 682
• Parties: State of Ohio, DEPARTMENT OF NATURAL RESOURCES, Plaintiff–Appellant, v. Stanley EBBING, et al., Defendants–Appellees.
• Court: Ohio Court of Appeals

28 N.E.3d 682

State of Ohio, DEPARTMENT OF NATURAL RESOURCES, Plaintiff–Appellant
v.
Stanley EBBING, et al., Defendants–Appellees.

No. 10–13–24.

Court of Appeals of Ohio, Third District, Mercer County.

Feb. 9, 2015.

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Scott D. Phillips, West Chester, and Frank J. Reed, Jr., Columbus, for appellant.

Bruce L. Ingram and Thomas H. Fusonie, Columbus, for appellees.

OPINION

ROGERS, P.J.

{¶ 1} Plaintiff–Appellant, the State of Ohio, Department of Natural Resources (“ODNR”), appeals the judgment of the Court of Common Pleas of Mercer County entering a jury verdict in favor of Defendants–Appellees, Stanley (“Stanley”) and

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Vicki (“Vicki”) Ebbing (collectively “the Ebbings”) in an amount of $764,518 in compensation for ODNR taking a permanent flowage easement on the Ebbings' property. On appeal, ODNR argues that the trial court erred by: (1) denying its request for a jury view; (2) admitting certain exhibits and testimony proffered by the Ebbings while excluding certain evidence proffered by ODNR; and (3) providing prejudicial jury instructions. For the reasons that follow, we reverse the trial court's judgment.

{¶ 2} This matter concerns Grand Lake Saint Marys (“GLSM”), a manmade lake located in Mercer and Auglaize Counties. Sometime in 1978, an inspection revealed “that the western spillway at GLSM could not pass a probable maximum flood¹ without overtopping for 48 hours, which would result in the eventual failure of the dam and catastrophic flooding.” State ex rel. Doner v. Zody, 130 Ohio St.3d 446, 2011-Ohio-6117, 958 N.E.2d 1235, ¶ 5. As a result, in 1990, ODNR decided to replace GLSM's 39.4–foot spillway with a 500–foot spillway in order to pass the probable-maximum-flood test. Id. at ¶ 6. The construction of the new spillway began in 1996 and was completed in 1997. Id. Both public officials and private citizens expressed concerns to ODNR about the new spillway and the possibility of greater flooding downstream along Beaver Creek. Id. at ¶ 8.

{¶ 3} By July of 2009, relators, a group of 87 landowners, filed an action for a writ of mandamus in the Supreme Court of Ohio to compel ODNR “to initiate appropriation proceedings for the taking of their property.” Id. at ¶ 86. The Ebbings were one of these landowners. The relators alleged that ODNR's 1997 replacement spillway flooded their properties resulting in damage to their land and crops. Id. at ¶ 17. The Court determined that the “flooding that occurred on [the relators'] property was the direct, natural, or probable result” of the 1997 spillway. Id. at ¶ 79. Further, the Court found that the relators “established by the requisite clear and convincing evidence that the flooding of their property, while intermittent, is inevitably recurring.” Id. at ¶ 82. The Court compelled ODNR to initiate appropriation proceedings to determine the amount and extent of the taking of the property. Id. at ¶ 86.

{¶ 4} On August 9, 2012, ODNR initiated appropriation proceedings for a flowage easement on the Ebbings' properties. ODNR filed a petition to appropriate a flowage easement and to fix compensation wherein it argued that the fair market value of the Ebbings' property was $492,000. ODNR listed the Ebbings as defendants, as well the Mercer County Auditor and Treasurer. On August 17, 2012, the Mercer County Auditor and Treasurer filed their Answer, stating that they had the first and best lien. On September 10, 2012, the Ebbings filed their Answer.

{¶ 5} While this matter implicates over a year's worth of discovery, and numerous motions and depositions, we will only discuss the evidence that is relevant to this appeal. Accordingly, for purposes of this appeal, this matter has four relevant stages: (1) ODNR's request for a jury view; (2) the Ebbings' motion to exclude ODNR's witnesses and photographs; (3) ODNR's motions to exclude the testimony, report, and photographs of the Ebbings' expert; and (4) the jury trial. We address each stage in sequence below.

Request for a Jury View

{¶ 6} On June 27, 2013, ODNR filed a request for a jury view. In its request,

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ODNR argued that “the jury should be provided an opportunity to observe the [Ebbings'] property in light of the evidence [the Ebbings] intend to introduce. Moreover, the jury should be permitted to view the property relative to its location and distance from the spillway, Beaver Creek, and the Wabash River.” (Docket No. 86, p. 2).

{¶ 7} The Ebbings filed a memorandum in opposition to ODNR's request for a jury view on July 11, 2013. In its memorandum, the Ebbings argued that ODNR's request for a jury view was “calculated merely to prejudice the Ebbings.” (Docket No. 89, p. 2). Further, the Ebbings argued that because they were “limited to presenting evidence of the property when it is flooded through testimony, pictures and videos, ODNR should be under the same limitation * * * so as to prevent ODNR from showing ‘the property in an unfair light.’ ” (Id. at 3), quoting Proctor v. Wolber, 3d Dist. Hancock No. 5–01–38, 2002-Ohio-2593, 2002 WL 1275431, ¶ 57. They also asserted that there would be no complex or unclear evidence at trial, making a jury view unnecessary.

{¶ 8} On August 26, 2013, the trial court denied ODNR's request for a jury view. In its ruling,² the trial court stated that it was “not mandated to grant a party's request for a jury view prior to the commencement of a jury trial.” (Docket No. 125). Further, the trial court stated that it believed that the jury would have difficulty separating what they saw in a jury view and the evidence that would be admitted at trial. (Id. ).

Motion to Exclude ODNR's Witnesses & Photographs

{¶ 9} On August 9, 2013, the Ebbings filed a motion in limine to exclude Bryon Frank and Bryan Smith as witnesses for ODNR and also to exclude evidence of the January 2013 flood. In their motion, the Ebbings asserted that ODNR was attempting to re-litigate the issue of causation of the flooding on the Ebbings' farms through the “misleading, confusing, and incompetent testimony of ODNR employees, Bryon Frank and Bryan Smith.” (Docket No. 96, p. 1). While ODNR claimed that Frank would only be called to authenticate photographs of a flood event in January of 2013, the Ebbings believed that Frank would also attempt to testify that flooding on the Ebbings' farms in 2013 was not caused the spillway. The Ebbings similarly anticipated that Smith, a surveyor for ODNR, would testify that that the 2013 flooding on the Ebbings' farms was not caused by the spillway.

{¶ 10} That same day, the Ebbings filed a separate motion to exclude Glen Cobb as a witness for ODNR. According to the Ebbings, ODNR wanted to use Cobb in order to present testimony on GLSM's practices on lake-level management. The Ebbings argued that ODNR was simply trying to re-litigate the issue of causation, which was settled by the Court's decision in Doner.

{¶ 11} On August 16, 2013, ODNR filed a memorandum in opposition to the Ebbings' motion to exclude the testimony of Cobb and other evidence of the resumption of lake level management by ODNR. ODNR argued that the fact that ODNR

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resumed its lake-level management practices at GLSM was relevant to determine the “extent” of the take. Further, ODNR maintained that it was relevant as to the issue of future flooding. In a separate memorandum in opposition, filed that same day, ODNR also argued that the trial court should deny the Ebbings' motion to exclude Frank's and Smith's testimony and evidence of the January 2013 flood. In its motion, ODNR reiterated many of the same arguments made in its memorandum in opposition to exclude Cobb's testimony. It also stated that the Ebbings would seek to introduce multiple photographs taken in January, April, and May of 2013. Thus, “[f]airness dictates that ODNR should also be able to introduce evidence from the flood event that occurred in January, 2013.” (Docket No. 104, p. 5–6).

{¶ 12} On August 26, 2013, the trial court granted the Ebbings' motion to exclude evidence from Frank and Smith³ . The trial court stated that any evidence regarding the flooding in January of 2013 is “irrelevant and inadmissible, unless it is established to be relevant to the valuation of plaintiff's permanent flowage easement taken over Ebbings [sic] properties.” (Docket No. 127, p. 1). That same day, the trial court also granted the Ebbings' second motion to exclude Cobb's testimony as to the ODNR's lake level management practices at GLSM. The trial court stated that what ODNR has done “or will do in the future to minimize its use of the permanent flowage easement is not relevant to the valuation of the permanent flowage easement * * *.” (Docket No. 135, p. 1).

Motion to Exclude Vannatta's Expert Testimony, Report, & Photographs

{¶ 13} On August 14, 2013, ODNR filed a motion to exclude the testimony and report of the Ebbings' expert witness, Richard Vannatta. Generally, ODNR argued that Vannatta “clearly manipulates certain variables to arrive at artificially inflated pre-appropriation values, and artificially deflates post-appropriation values...