Wear v. State, Dept. of Roads

• Decision Date: 05 August 1983
• Docket Number: No. 81-927,81-927
• Citation: 215 Neb. 69,337 N.W.2d 708
• Parties: Frank J. WEAR et al., Appellees, v. STATE of Nebraska, DEPARTMENT OF ROADS, Appellant.
• Court: Nebraska Supreme Court

Page 708

337 N.W.2d 708

215 Neb. 69

Frank J. WEAR et al., Appellees, v. STATE of Nebraska, DEPARTMENT OF ROADS, Appellant.

No. 81-927.

Supreme Court of Nebraska.

Aug. 5, 1983.

Syllabus by the Court

1. Eminent Domain: Evidence. Generally, evidence as to the sale of comparable property is admissible as evidence of market value, provided there is adequate foundation to show the evidence is material and relevant. The foundation evidence should show the time of the sale, the similarity or dissimilarity of market conditions, the circumstances surrounding the sale, and other relevant factors affecting the market conditions at the time.

2. Eminent Domain: Appeal and Error. Whether properties, the subject of other sales, are sufficiently similar to the property condemned to have some bearing on the value under consideration, and to be of aid to the jury, must necessarily rest largely in the sound discretion of the trial court. The trial court's determination will not be interfered with in the absence of an abuse of discretion. The exact limits, either of similarity or difference, or of nearness or remoteness in point of time, depend upon the location and character of the properties and the circumstances of the case.

3. Eminent Domain: Evidence. The weight and credibility of valuation testimony in a condemnation action are for the jury, and in testing such evidence the condemnee is entitled to have all conflicts resolved in a light most favorable to him.

4. Eminent Domain: Damages: Appeal and Error. The amount of damages sustained in a condemnation action is peculiarly a question of a local nature and ordinarily is to be determined by a jury. Where the evidence is conflicting, this court will not ordinarily interfere with the verdict of the jury unless it is clearly wrong.

5. Attorney Fees. In the determination of a reasonable attorney fee, the court should consider the importance of and the result of the case, the difficulties thereof, the degree of professional skill demonstrated, the diligence and ability required and exercised, the experience and professional training of the attorney, the difficulty of the questions of fact and law that are raised, and the time and labor necessarily required in the performance of those duties.

6. Attorney Fees. The court, in awarding a reasonable attorney fee, may consider the actual agreement existing between a litigant and his attorney, including an obligation to pay a contingent fee. While the actual agreement is neither the sole factor nor a factor to be given any greater weight than any of the other factors, it may nevertheless be considered.

Paul L. Douglas, Atty. Gen., Warren D. Lichty, Jr., and Gary R. Welch, Lincoln, for appellant.

J. Thomas Rowen of Miller & Rowen, P.C., Omaha, for appellees.

KRIVOSHA, C.J., BOSLAUGH, McCOWN, WHITE, HASTINGS, and CAPORALE, JJ., and COLWELL, D.J., Retired.

McCOWN, Justice.

This is a condemnation proceeding instituted by the Nebraska Department of Roads to acquire the land necessary for highway reconstruction in Sarpy County, Nebraska. The jury verdict was for $677,480 and the State has appealed.

The State sought to acquire 18.12 acres of land on the outskirts of Omaha located on the west side of Highway 50 near its intersection with Interstate 80 in Sarpy County, Nebraska. The land taken in fee title was a roughly rectangular tract approximately 1,535 feet north and south by 535 feet east and west, and was located in the southeast corner of a 75-acre tract of land owned by the individual condemnees, who are plaintiffs in this action.

The 75-acre tract was also rectangular, approximately 2,600 feet north and south by 1,250 feet east and west. The State had acquired control of access from the 75-acre tract to Highway 50 in 1962, and had restricted access use to two field entrances to be used for normal farming operations. No other access existed to Highway 50. Twenty-six acres of the 75-acre tract were zoned as general business and the remaining acres were zoned for multifamily dwellings. Of the 18.12 acres actually taken by the State, 13.8 acres were zoned general business and 4.32 acres were zoned for multifamily dwellings.

Prior to the filing of the condemnation action here the plaintiff landowners had prepared and drawn plans for the development of the 75-acre tract for use as a shopping center and condominium apartment complex.

In June 1980 the Nebraska Department of Roads filed a condemnation proceeding in Sarpy County, and on July 10, 1980, the board of appraisers in the county court awarded the property owners $480,942 as damages by reason of the taking. Both the property owners and the State appealed the award to the District Court, and the property owners were designated plaintiffs.

At the trial in District Court the plaintiffs presented Fred Krambeck, a licensed real estate appraiser, as their first witness. Krambeck testified and gave his opinion as to the amount of damages sustained by the plaintiffs, including the value of the 18.12 acres actually taken and the damages to the remainder of the 75-acre tract. Krambeck testified that his opinion was based upon computations, figures, and plans prepared by Bill Dorner, a registered land surveyor.

Dorner testified that he prepared some of the figures and computations for the plaintiffs' planned development of the 75-acre tract. Dorner admitted that when he prepared the plats he presupposed access to Highway 50. On motion of the State the District Court then struck the testimony of Dorner on the basis that he was not a registered civil engineer and therefore not qualified to prepare the figures and plats offered in his testimony. The court also struck the testimony of Krambeck because his valuations were based on the Dorner figures and the assumption that there was access to Highway 50.

Later in the trial plaintiffs produced the testimony of Robert E. Dreesen, a certified civil engineer who was a partner with Dorner in a 30-person engineering and surveying firm. Dreesen testified that all figures and materials prepared by members of his firm were prepared under the supervision of a licensed engineer and were reviewed and checked for authenticity and accuracy. He testified that he personally reviewed the exhibits and figures prepared by Dorner and that in his opinion the figures and computations were true and accurate. Dreesen also testified that the absence of access to Highway 50 would not affect the feasibility of the Dorner plans, nor the figures reviewed and testified to by Dreesen, even though Dorner had incorrectly presumed access when the plans were prepared.

Paul Merker, a licensed real estate appraiser, also testified on behalf of the plaintiffs. He testified that the commercial and residential zoning of the 75-acre tract represented the highest and best use of the property. He used a market data approach for his valuations and selected a series of sales of similar properties in the area which he adjusted for differences between them and the subject tract.

In Merker's opinion the fair market value of the entire tract before the taking was $1,044,569, the fair market value of the remainder after the taking was $184,426, and the total damages were $860,143.

Merker testified that the value of the 18.12 acres actually taken was $336,316 and the balance was for damage to the remainder of the tract.

Robert E. Wear, a real estate developer and one of the owners of the land, testified that the development plan for the 75-acre tract had been drawn up prior to the condemnation and that, in his opinion, the plaintiffs sustained approximately $1 million in damages as a result of the taking.

The State's evidence outlined its plan to expand the intersection of Highway 50 and Interstate 80, and also established that the only access from plaintiffs' land to Highway 50 was two field entrances restricted to use for farming purposes.

Attilio Rindone, a licensed real estate appraiser, testified on behalf of the State. In his opinion, using a market data approach and comparative sales, the value of the entire property before the taking was $380,000, the value of the remainder after the taking was $279,000, and the total damages were $101,000.

The jury viewed the premises at ground level and by air, and returned a verdict for the plaintiffs in the sum of $677,480.

At a separate hearing thereafter the District Court granted the plaintiffs attorney fees of $80,000, plus expert witness fees of $1,680, and this appeal followed.

The basic contention of the State on appeal is that the testimony of the expert real estate witness Merker was improper and should have been excluded because his valuations were partially based upon computations prepared by William Dorner, whose testimony had been stricken upon the ground that he was not a licensed civil engineer. Dorner had also testified that his computations assumed access to Highway 50. The State also contends that Merker's testimony should have been excluded because the evidence did not establish that the comparative sales used by Merker were arm's length transactions between willing buyers and sellers.

The State's position is that because of the admission of the evidence, which the State asserts was improper, the verdict was excessive. Essentially, the State's position is that because Dorner presumed access to Highway 50 when he prepared his computations, a real estate expert witness, such as Merker, who used Dorner's computations and plans, also necessarily assumed there was access to Highway 50 as a basis for all valuation testimony. Therefore, the State argues, Merker's testimony as to the valuation of the land taken or damaged must be excluded. The record does not support the State's position.

Without passing upon the issue of whether Dorner's testimony was properly stricken as incompetent, the testimony of Robert Dreesen, a licensed civil engineer, is in the record to reestablish Dorner's facts and figures...