Wray v. Wessell
| Decision Date | 19 December 2016 |
| Docket Number | Case No. 15CA3724,Case No. 15CA3725 |
| Parties | JERRY WRAY, DIRECTOR, OHIO DEPARTMENT OF TRANSPORTATION Plaintiff-Appellant, v. LINDA JEAN CORIELL WESSELL, et al., Defendants-Appellees. |
| Court | Ohio Court of Appeals |
2016 Ohio 8584
JERRY WRAY, DIRECTOR, OHIO
DEPARTMENT OF TRANSPORTATION Plaintiff-Appellant,
v.
LINDA JEAN CORIELL WESSELL, et al., Defendants-Appellees.
Case No. 15CA3724
Case No. 15CA3725
COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT SCIOTO COUNTY
December 19, 2016
DECISION AND JUDGMENT ENTRY
APPEARANCES:
Michael DeWine, Ohio Attorney General, William J. Cole, Assistant Attorney General, and Nicholas S. Bobb, Assistant Attorney General, for appellant
Michael Braunstein, Clinton P. Stahler, and Matthew L. Strayer, Columbus, Ohio, for appellees
CIVIL CASE FROM COMMON PLEAS COURT
ABELE, J.
{¶ 1} This is a consolidated appeal from Scioto County Common Pleas Court judgments that appropriated two parcels of property (409-WL and 412-WL) and fixed compensation.1 A jury awarded Linda Jean Coriell Wessell and Lynn R. Wessell,2 the property owners of both parcels and the defendants below and appellees herein (1) for one of the parcels $22,800 as compensation for the land taken; $14,000 as damages to the 26.971-acre right residue (and the
Page 2
sole basis for this appeal); and $14,000 to the 7.537-acre landlocked left residue, and (2) for the other parcel not the subject of this appeal $46,330 as compensation for the land taken; and $189,355 as damages to the residue.
{¶ 2} Jerry Wray, the director of the Ohio Department of Transportation (ODOT), plaintiff below and appellant herein, assigns the following errors for review:
FIRST ASSIGNMENT OF ERROR:
"THE TRIAL COURT ERRED IN ALLOWING THE LANDOWNERS' APPRAISER TO TESTIFY TO CONSEQUENTIAL DAMAGES."
SECOND ASSIGNMENT OF ERROR:
"THE TRIAL COURT ERRONEOUSLY INSTRUCTED THE JURY REGARDING CONSEQUENTIAL DAMAGES."
{¶ 3} This case arises out of an eminent domain proceeding to appropriate property to build a new highway in Scioto County. In order to build the highway, appellant filed separate petitions to partially appropriate two parcels of appellees' property and to fix compensation. Parcel 409-WL is 122.658 acres, and parcel 412-WL is 44 acres. Appellant appropriated 9.492 acres in fee simple from parcel 412-WL, leaving a 7.537-acre landlocked left residue, and a 26.971-acre right residue. The issue in this appeal concerns parcel 412-WL's 26.971-acre right residue.
{¶ 4} Before trial, appellant objected to parts of appellees' appraiser's report concerning parcel 412-WL. Appellant requested the trial court to prohibit appellees from introducing into evidence the appraiser's statements that the 26.971-acre right residue sustained proximity
Page 3
damages as a result of the appropriation and highway construction. Appellant particularly objected to the appraiser's statements that the appropriation and resulting highway construction diminished the market value of appellees' residual property by creating increased safety hazards, increased noise, diminished views, the loss of recreational uses, fear of recurrent catastrophic events, and "cuts and fills." In support of this objection, appellant asserted that the appraiser's opinion that the appropriation damaged appellees' right residual property is based upon elements of damage that are not compensable in an appropriation action, and hence, his opinion regarding these noncompensable attributes should be deemed to be inadmissible. In particular, appellant argued that the elements of damage the appraiser cites constitute consequential injuries that flow from the highway construction that are shared in common with the public, and thus, are noncompensable as a matter of law.
{¶ 5} Appellees asserted that their appraiser's report properly considers elements of value that an ordinarily prudent businessperson would consider and that none of the report is inadmissible. Appellees argued that when a jury ascertains the fair market value of residual property, it should consider every element a buyer would consider before making a purchase. Appellees claimed that diminished view, increased noise, increased safety hazards, and fear of recurrent catastrophic events are all elements a buyer would consider before purchasing property. Appellees thus contended that these elements are compensable elements that a jury may consider when ascertaining damages to the residue.
{¶ 6} Before the trial court allowed appellees' appraiser, Richard M. Vannatta, to testify, the court permitted appellant to question him outside of the jury's presence. Vannatta explained that in valuing the right residue, he considered the increased safety hazards created by
Page 4
cars veering off the highway. He further stated that the highway created a fear of catastrophic events and increased noise. Vannatta also explained that the highway construction changed the elevations so as to diminish the view. Vannatta admitted, however, that other properties in the area suffered similar damages to varying degrees. After hearing Vannatta's statements and the parties' arguments relating to the admissibility of his opinion regarding the damages to appellees' residue, the court permitted Vannatta to testify.
{¶ 7} During his trial testimony, Vannatta explained that before the appropriation, appellees' property was most suitable for recreational purposes, such as hunting, snowmobiling, and driving all-terrain vehicles. He stated that pre-appropriation, the property was secluded and remote. Vannatta testified that before the highway construction, the view from the property consisted of a tree line, but after the highway construction the view consists of a highway. Vannatta stated that in evaluating the post-appropriation value of the right residue, he considered the loss of recreational use, increased noise, fear of safety hazards, and the diminished view. In his opinion, the highway construction re-contoured the land and "drastically affect[ed] the view" from appellees' right residue. Vannatta testified that because the pre-appropriation value of the right residue was $2,400 per acre and the post-appropriation value is $1,100 per acre, the right residue's per acre value decreased by $1,300.
{¶ 8} Appellant's appraiser, C. Eric Kirk, testified that before the appropriation, the highest and best use of parcel 412-WL was recreational. He valued parcel 412-WL before appropriation at $1,000 per acre. Kirk opined that the post-appropriation value of the landlocked left residue was $500 per acre. He further testified that parcel 412-WL's right residue did not sustain any damages.
Page 5
{¶ 9} Before the trial court submitted the case to the jury, the court, over appellant's objection, gave the jury the following instruction:
"Damages to the residue resulting from the exercise of eminent domain may be recovered only for damages not common to the public and considering whether or not the residue of the property has sustained any damages as a result of ODOT's appropriation, elements of inconvenience, danger, noise, diminished view, and interference with the enjoyment and use of the Wessell's property particularly affecting it's [sic] market value may be considered in determining the fair market value of the residue [un]less suffered by the owner in common with the public."
{¶ 10} On October 28, 2015, the jury returned a verdict, along with interrogatories. The interrogatories asked the jury to answer whether they assigned damages to the right residue for "increased safety hazards," "fear of recurrent catastrophic events," "cuts and fills," "increased noise," and "diminished view." The jury answered that it did not assign damages for "increased safety hazards," "cuts and fills," or "fear of recurrent catastrophic events," but that it did assign damages "for increased noise" and for "diminished view." The jury awarded (1) $22,800 as compensation for the land appropriated; (2) $14,000 for the landlocked left residue; and (3) $14,000 for damages to the right residue. This appeal followed.
{¶ 11} In its first assignment of error, appellant asserts that the trial court erred by allowing appellees to present Vannatta's testimony that the appropriation damaged appellees' right residual property by causing increased noise, diminished views, increased safety hazards, fear of recurrent catastrophic events, and "cuts and fills."3 Appellant claims that these elements
Page 6
of damage constitute "consequential damages" that are shared in common with the public and, therefore, are not compensable elements of damage to the residue. Appellant contends that because appellees' consequential damages are noncompensable, the trial court erred as a matter of law by permitting the jury to hear Vannatta's testimony pertaining to these damages.
{¶ 12} Appellees, on the other hand, assert that the trial court did not abuse its discretion by allowing Vannatta to testify that the appropriation damaged appellees' property by causing increased noise, diminished views, increased safety hazards, fear of recurrent catastrophic events, and cuts and fills. Appellees argue that when the jury assesses damages to the residue, the jury must consider "every element a buyer would consider before making a purchase." Appellees contend that increased danger, increased noise, diminished views, and loss of enjoyment are among the elements that a buyer would consider before making a purchase. Appellees recognize, however, that for these types of damages to be compensable, they must be particular to the residual property and not simply suffered in common with the public. Appellees thus argue that whether certain elements of damage are suffered in common with the public is a question for the jury to decide, and not a question of law for the court to decide as a prerequisite to admissibility. Appellees thus posit that a trial court has discretion to decide whether to admit evidence regarding damages to residual property.
{¶ 13} The first disputed issue that we must resolve concerns the applicable standard of
Page 7
review. We agree with appellees that a discretionary standard of review ordinarily applies to trial court decisions...
To continue reading
Request your trial