2011 Ohio 3066
Ohio Ct. App.2011Background
- The County sought a temporary easement on the McNamaras' front yard to facilitate a two-year Bainbridge Road restoration project.
- Ten mature trees on the front yard had to be removed to accommodate the temporary roadway.
- The County filed an appropriation petition on July 21, 2009; the jury awarded $3,600 for compensation and $10,000 for damages to the residue on June 22, 2010.
- The trial court instructed the jury on compensation for the taken property and on damages to the residue caused by the appropriation.
- The County challenged the jury instructions and the admissibility of Mary McNamara’s owner-opinion testimony regarding property value.
- The appellate court affirmed the award, finding the damages supported by evidence and no reversible error in the jury instructions or admission of owner-opinion testimony.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the damages to the residue were correctly instructed | McNamara asserts error in the 'damage to the residue' instruction and contends the proper standard was a two-step value comparison with trees considered separately. | McNamara contends the court misstated the law about measuring residue damages; however, the court held the instruction correct or substantially equivalent. | Instruction correct; no reversible error |
| Whether Mary McNamara’s owner-opinion testimony on value was admissible | Count y argues owner-opinion on value is improper without pre/post values. | McNamara contends owner-opinion testimony is admissible and weighs against the evidence. | No abuse of discretion; owner-opinion testimony admissible |
Key Cases Cited
- In re Appropriation of Easements for Highway Purposes, 172 Ohio St. 524 (Ohio Sup. Ct. 1961) (establishes twofold measure: compensation for taken land and damages to residue)
- City of Norwood v. Forest Converting Co., 16 Ohio App.3d 411 (Ohio App. Dist. 1984) (valuation of remaining property includes fair market value considerations)
- Proctor v. NJR Properties, L.L.C., 2008-Ohio-745 (1st Dist. Ohio App. 2008) (uses prudent businessperson factors for remaining property value)
- Masheter v. Kebe, 34 Ohio App.2d 32 (Ohio App. Dist. 1973) (owner-opinion testimony on value admissible in appropriation cases)
- Tolkes & Son, Inc. v. Midwestern Indemn. Co., 64 Ohio St.3d 621 (Ohio Sup. Ct. 1992) (distinguishes owner-opinion from expert valuation and weight-assigning)
- Padgett v. Smith, 32 Ohio St.3d 344 (Ohio Sup. Ct. 1987) (owner-opinion testimony on value without formal valuation merits weight)
- Baker v. Cleveland, 2010-Ohio-5588 (Cuyahoga App. 2010) (jury instruction discretion; de novo review for misstatement of law)
- City of Englewood v. Wagoner, 41 Ohio App.3d 324 (Ohio App. Dist. 1987) (affirmation of residual-damage methodology using before/after values)