State Highway Commission v. Jones
| Decision Date | 07 June 1977 |
| Docket Number | No. 2--675A143,2--675A143 |
| Citation | 173 Ind.App. 243,363 N.E.2d 1018 |
| Parties | STATE of Indiana, Indiana State HIGHWAY COMMISSION, Appellant (Plaintiff below), v. William C. JONES et al., Appellees (Defendants below). |
| Court | Indiana Appellate Court |
Frank E. Tolbert, Miller, Tolbert, Hirschauer & Wildman, Logansport, Joseph T. Ives, Jr., Ives & Ives, Delphi, for appellees.
This case was transferred to this office from the Second District in order to help eliminate the disparity in caseloads among the Districts.
Plaintiff-appellant State of Indiana appeals from a judgment in which $469,850 was awarded to defendants-appellees Jones, et al. based on a condemnation proceeding brought by the State through its power of eminent domain in order to appropriate certain quarry lands owned by the defendants to construct a limited access highway.
We affirm.
William C. Jones, et al. were the owners of a 285 acre tract of land in Cass County, Indiana of which 131 acres were leased to Engineering Aggregates Corporation. Of that leased land approximately 74 acres were shown by scientific drilling and testing to have contained approximately 18 million tons of Class A limestone. Such limestone was also shown to have extended to an average depth of 70 feet. A quarrying operation had been carried on at the leased site since 1965. In 1968 a survey was made by the state in preparation for the construction of an improved highway along the east side of the quarry. At that time Engineering Aggregates was told by the State not to work the quarry any further to the east. The quarry operators complied with the State's request.
In 1972 the State filed a complaint, thereby seeking condemnation of 26.416 acres of yet to be used quarry land for the purpose of building a limited access highway. The State's appropriation of the 26.416 acre tract also isolated another 12.234 acres of yet to be used quarry land from the main Appraisers were appointed by the court. These appraisers valued defendants' loss at $281,859, $99,624 to the owners-lessors and $182,235 to the lessees. The State tendered the amount said to be due by the appraisers, but took exception to the appraisers' report saying that the award to the defendants was excessive. The defendants took exception to the appraisers' report, alleging that it was insufficient. Trial ensued with the only issue being that of the amount of damages and the method by which they were to be computed.
quarry operations, thereby rendering that isolated tract unsuitable for quarrying purposes.
Various economic, scientific, and real estate experts testified for both sides. The experts were of little help in giving the jury sufficient guidelines from which damages could be assessed. The estimates of defendants' damages ranged from a low of $36,325 to a high of $750,000. The bulk of the witnesses of Jones, et al. estimated the damages to be between $400,000 and $700,000. The bulk of the State's witnesses estimated the damages to be about $38,000.
Most of the experts in the case at bar utilized a capitalization method in computing the damages. Capitalization is a method of computation which gives value to the land in relation to the income it produces. Some of the experts capitalized only the rents from the lease, others capitalized the net income. Some included the lessee's interest in the land, others said the lessee's interest should not have been considered because it wasn't affected by appropriation. Some considered the isolated 12.234 acres in their computations, others did not. In short, there was no consensus among the experts as to how the damages should have been computed.
However, the evidence appears to be without dispute that the quarrying operation had achieved an average net profit of $80,000 per year immediately prior to the taking, that it had an annual growth rate of 3.8%, and that the skill of the operator and efficiency of the operation was determinative of the successful production of income. Other economic factors which were considered were the quantity and quality of the stone, whether there was a low overburden 1 and whether the quarry lands were close to a place of market. It was found that all of these factors were present in the land condemned by the State. Most of the experts agreed that the best use of the condemned land would have been for stone quarrying, rather than for farming or industrial use. Several experts indicated that when they are sold, quarries are bought and sold upon the income they produce.
This case presents the following issues for review:
1. Whether the court erred in refusing to give to the jury plaintiff's Motion for Order Compelling Discovery.
2. Whether the court erred in admitting, over the plaintiff's objection, defendants' Exhibit Number Four (4).
3. Whether the damages awarded by the jury were grossly excessive.
4. Whether the court erred in refusing to give to the jury plaintiff's tendered Instruction No. 1.
5. Whether the court erred in refusing to give to the jury plaintiff's tendered Instruction No. 3.
The court denied the State's request for the production of documents under Ind. Rules of Procedure, Trial Rule 34, wherein the State sought copies of the written data compiled and the opinions formulated by the experts hired by Jones, et al. The State then made a motion to compel discovery under Ind. Rules of Procedure, Trial Rule 37, which was also overruled. The State We find no error. In order for the State to utilize the discovery mechanism provided for within TR.34, it must make its request in compliance with Ind. Rules of Procedure, Trial Rule 26(B), more specifically TR. 26(B)(3) when the data and opinions of experts are sought to be obtained.
alleges that the trial court erred in not granting its motion to compel discovery.
TR.26(B)(3)(a) requires that good cause be shown by the party seeking discovery before the facts and opinions, which were compiled and formulated in anticipation of litigation by the opposing party's experts, can be discovered. Where, however, an expert is retained not merely for the purpose of assisting in preparing for litigation, but where he will actually be called as a witness at trial, TR.26(B)(3)(b), which does not require a showing of good cause, controls.
TR.26(B)(3)(b) provides:
'(b) As an alternative or in addition to obtaining discovery under subdivision (B)(3)(a) of this rule, a party by means of interrogatories may require any other party
(i) to identify each person whom the other party expects to call as an expert witness at trial, and
(ii) to state the subject-matter upon which the expert is expected to testify.
Thereafter, any party may discover from the expert or the other party facts known or opinions held by the expert which are relevant to the stated subject-matter. Discovery of the expert's opinions and the grounds therefor is restricted to those previously given or those to be given on direct examination at trial.'
The State alleges that its motion for the production of the documents was within the scope of TR.26(B)(3)(b) for the reason that it sought written data, facts, and opinions only from experts who were to be called as witnesses at trial. The State admits that it did not obtain the names of the expert witnesses and the subject-matter upon which they were to testify through interrogatories as provided in TR.26(B)(3)(b), but rather that such knowledge was obtained through information voluntarily supplied by the counsel of Jones, et al. and from a list of witnesses included in the pre-trial order.
The language in TR.26(B)(3)(b) is very clear in that it provides that interrogatories are the means by which a party may require another party to identify its expert witnesses and the subject matter upon which they shall testify. The use of interrogatories in this situation allows the parties to narrow the subject matter of all future discovery so that such future discovery will be limited to the facts and opinions that the expert witness will give on direct examination at trial, as provided in TR.26(B)(3)(b). In answering interrogatories a party first has the time and opportunity to examine the data compiled and the opinions formulated by an expert, and he has the opportunity to determine the value of the expert's prospective testimony to his case, before he limits the subject matter upon which that expert will testify. Any other method would lend itself to generalities and would not allow the subject matter to be sufficiently limited before proceeding with further discovery.
Therefore, we hold that the State's failure to obtain by interrogatories the identity of the expert witnesses of Jones, et al. and the subject matter upon which they were to testify precluded it from seeking further discovery of those expert witnesses. The motion to compel discovery was properly overruled.
The State has waived this issue for the reason that it failed to include Defendants' Exhibit No. Four in the record. From statements made by the State and from the foundation testimony for Defendants' Exhibit No. Four which does appear in the record, it seems that the exhibit was a cash flow data chart. According to Ind.Rules of Procedure, Appellate Rule 7.2(A)(2), copies of all papers filed with the clerk of the court are to be included in the record. This court cannot consider the propriety of the admission of a written document unless such document is included in the record.
The State contends that the damages awarded to Jones, et al. were grossly excessive. It alleges that the jury improperly disregarded the evidence presented by the State and that the jury must have relied upon the...
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