State v. Evans
| Decision Date | 01 October 1981 |
| Docket Number | No. 47218-1,47218-1 |
| Citation | 96 Wn.2d 119,634 P.2d 845 |
| Court | Washington Supreme Court |
| Parties | The STATE of Washington, Petitioner, v. Donald M. EVANS and Ramona L. Evans, his wife; Albert T. Evans and Cynthia AnnEvans, his wife; Neil H. Evans and Glennette Evans, his wife; Ornia R. Evansand Lucille Evans, his wife; Robert C. Evans, Jr. and Virginia Evans, his wife;d/b/aEvans Bros., a partnership, d/b/a D&E Livestock Company, a partnershipa/k/a Evans Brothers, Respondents. |
Note: also see 649 P.2d 633.
Slade Gorton Atty. Gen., Joseph B. Loonam, Charles F. Secrest, Asst. Attys. Gen., Olympia, for petitioner.
Halverson, Applegate & McDonald, Bryan G. Evenson, Alan A. McDonald, Yakima, for respondents.
The State appeals from a jury award of $400,000 to respondent Evans and others for condemnation of 17.58 acres from the respondents' 746-acre ranch to be used for the construction of Interstate 82 in the vicinity of Prosser, Washington. The State's primary assignments of errors are that the court (1) failed to grant the State's motion in limine to exclude testimony as to the value of an adjacent feed mill, (2) erroneously ruled on the admissibility of certain testimony, and (3) erroneously refused one of the State's proposed instructions to the jury. We find prejudicial error, and reverse and remand for a new trial.
Prior to trial, the State successfully moved, through a motion in limine, to limit the damage issue as to the value of the property before the taking, minus the market value of the property remaining after the acquisition. The State's chief appraiser, Mellor, testified that the respondents' entire property had a market value of $492,250. According to Mellor, after the taking the respondents would be left with a farm having a market value of $307,786. He testified that Evans was entitled to a just compensation award of $138,750, broken down as follows:
(1) Market value of the 17.58 acres $ 39,786
(2) Improvements on the 17.58 acres $ 57,980
(3) Consequential damages $ 13,968
(4) Cure (water truck, 4000 gallon $ 27,000
truck to keep dust down on feedlot) --------
Total just compensation .............. $138,734
Total just compensation rounded
out .................................. $138,750
However, the court failed to enforce its valuation order as to respondents. Respondents' appraisers, McMinemee and Golob, were permitted to testify, over objection, as to the replacement value of the two feedlots on the remainder property and nothing else. McMinemee testified that the feedlots were presently worth $450,000 to $500,000 and that, after the taking, the freeway would be within 80 to 100 feet from the north feedlot causing such feedlots to have no value. During cross-examination, McMinemee admitted he was unaware that part of the north feedlot was on land not owned by Evans. Later, McMinemee gave his opinion of market value on the improvements only but not on the land underlying the improvements. McMinemee testified:
Q. Did you value the land under that? Under the pens and the feed mill?
A. No.
Q. You just value improvements?
A. The improvements is all.
A. Yes, I'm talking about strictly just the corrals and the scales and the mill.
(Italics ours.)
The State's motion to strike his testimony was denied.
The respondents' second witness on valuations was Golob, who testified:
Q. Well, in other words, did you value the whole? You didn't intend to express an opinion of value of the entire Evans' ownership, did you?
A. I was looking at the feedlot, corrals and the mill facility.
Q. That's what I thought, and the reason which you found to depreciate them was the proximity of the freeway to the north?
A. Right. Yes, this is what I've been following the conversation from, yes.
The trial judge should have stricken the testimony of both McMinemee and Golob. Both were in violation of the court's order that the valuations must be based on the market value of the property before the taking, minus the value of the remainder after the taking, and not on valuations of personal property.
All respondents' appraisal witnesses, McMinemee, Golob and Evans, were permitted to violate the court's order on evaluation, and to testify as to the value of the two feedlots, suggesting by inference that the jury could award the landowner the market value of the two feedlots even though they weren't being condemned. This was prejudicial error.
The Trial Court Erred in Admitting Market Value Testimony
Respondents owned a feed mill which had been used to serve their feedlots. However, they did not own the underlying property. Paragraph 8 of the State's motion in limine requested the court to exclude any evidence as to land not owned by the respondents in defining the single larger parcel for the purpose of determining just compensation. State counsel, in a supporting memorandum, cited State ex rel. Wirt v. Superior Court, 10 Wash.2d 362, 371, 116 P.2d 752 (1941), for the proposition that condemnees are not entitled to recover damages from any tract except the one over which a private way of necessity was condemned.
The damages for taking a right of way are based on ownership of land actually taken and are limited to lands held under the same title.
Other cases support this contention. State v. Corvallis Sand and Gravel Co., 69 Wash.2d 24, 30, 416 P.2d 675 (1966); Grays Harbor Boom Co. v. Lownsdale, 54 Wash. 83, 97-98, 102 P. 1041, 104 P. 267 (1909).
The trial judge took this issue under advisement and subsequently ruled that the value of the feed mill was admissible and that the State had no standing to raise the ownership issue. The court of appeals held that this was prejudicial error because the respondents failed to establish an enforceable interest in the property upon which the feed mill was located. However, it held that the State waived its right to assert an error because it failed to object to testimony concerning the value of the feed mill. This holding is not supported by the record. The testimony shows that the State argued from its initial motion in limine that the State only had to pay for what it was taking and, as they were not taking the feed mill, and as the condemnee had no interest in the land on which the feed mill was located, testimony as to the value of the feed mill was not admissible.
The reasons for the objection to the introduction of such evidence were clearly elucidated in the affidavit of Pitman and were amply argued in the memorandum brief. The purpose of a motion in limine is to dispose of legal matters so counsel will not be forced to make comments in the presence of the jury which might prejudice his presentation. Once the State had made its motion in limine, properly legally supported, and the court had taken under advisement an objection to any testimony arising afterwards, the State need not object further. In the absence of a request from the court that evidence, which was the subject matter of the motion in limine, should be objected to as it comes in, the State had a continuing objection to this testimony until the judge ruled on its motion. Fenimore v. Donald M. Drake Constr. Co., 87 Wash.2d 85, 92, 549 P.2d 483 (1976). The trial court erred in not granting the State's motion in limine in reference to the market value of the feed mill.
Moreover, even if the State had failed to make an objection, there was no waiver. No proper question was ever answered by a witness in reference to the market value of the feed mill. Opening statements of counsel are not evidence. Hypothetical questions posed, on cross-examination of Mellor, failed to elicit a favorable response, as reflected in the Verbatim Report of Proceedings at page 364:
Q. All right, so if we are talking about X plus a $250,000 mill before under your notion of Y plus the $250,000 mill after the construction, why, X is going to equal Y in any event, isn't it?
A. I think there would be some difference, but I don't follow the X and Y's but
It is clear that attorney McDonald mentioned the $250,000 in reference to a hypothetical question. Mellor didn't agree that the feed mill was worth $250,000; that testimony came exclusively from the lips of McDonald in posing a hypothetical question to which Mellor said, "but I don't follow the X and Y's but ..."
The second time the value of the feed mill was mentioned was on pages 365 and 366 of the transcript in Mellor's testimony:
Q. Well, let's take this example a moment further. The mill added a couple of hundred thousand dollars to the value of this operation and in the market for the cattle yard and the after situation was zilch because of the freeway, then, in addition to what he was losing because of that result presently he'd be also losing the utility of the mill, wouldn't he, unless he wanted to junk it for salvage?
A. Under your premise, but not what I would agree with.
Q. I'm perfectly comfortable. I've asked you to assume
A. Yes.
Q. the hypothesis that I'm asking you. Just so we're clear, then, that if you'd make that assumption, then, indeed, his damages are greater, are they not?
A. If you make that assumption.
(Italics ours.)
Again counsel refers to a valuation of $200,000 for the feed mill on a hypothetical question, and again Mellor responds he doesn't agree. Again the value comes in through the statement of the attorney which is not testimony. By no stretch of the imagination did Mellor ever testify, agree or infer that the feed mill was worth $200,000 or $250,000.
The testimony of landowner Evans on this subject came prior to the court giving the State a continuing objection as to any testimony concerning the market value of the mill. Evans stated:
Q. What else goes into setting up a cattle yard? We've heard testimony about a mill. What would it cost realizing that cost isn't the sole guide but what would it cost...
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