2015 Ohio 471
Ohio Ct. App.2015Background
- ODNR initiated appropriation proceedings seeking a permanent flowage easement across 51.03 acres of two farms owned by Stanley and Vicki Ebbing after the Ohio Supreme Court in Doner found downstream flooding was a recurring result of the 1997 Grand Lake Saint Marys spillway reconstruction.
- ODNR valued the take at $492,000; the Ebbings claimed much larger damages and presented appraisal evidence valuing pre- and post-taking values that produced a $1,145,000 loss (Vannatta). ODNR’s appraiser (Dunzweiler) produced a substantially lower damages figure ($537,000).
- Pretrial and trial disputes focused on (a) ODNR’s timely request for a jury view (denied by the trial court), (b) exclusion of certain ODNR witnesses/photographs (including testimony about lake-level management and a January 2013 flood), and (c) admission of numerous Ebbing exhibits including portions of the Ebbings’ expert report with inflammatory photos.
- The jury awarded the Ebbings $764,518. ODNR appealed, arguing errors in denial of the jury view, admission/exclusion of evidence, and prejudicial jury instructions.
- The Third District reversed and remanded in part: it found the trial court erred in denying the mandatory jury view under R.C. 163.12 (absent unusual circumstances) and found several evidentiary errors (admission of duplicative/irrelevant or inflammatory materials and preventing ODNR from presenting rebuttal evidence) that, alone or cumulatively, required reversal. The court affirmed the jury instruction challenge.
Issues
| Issue | Plaintiff's Argument (ODNR) | Defendant's Argument (Ebbings) | Held |
|---|---|---|---|
| Denial of jury view | R.C. 163.12 requires a view when requested; trial court gave no unusual-circumstance justification | Ebbings: ODNR waived or request would prejudice jury; view unnecessary because evidence not complex | Reversed — statute’s "shall" is mandatory; denial was error because court didn’t find unusual circumstances and evidence was sufficiently complex to warrant a view |
| Admission of spillway/flood photographs & duplicative images | Photographs were irrelevant, cumulative, prejudicial and should be excluded | Ebbings: photos show "negative external factors" a willing buyer would consider | Partially sustained — many spillway/other-area photos were irrelevant or cumulative and their admission was erroneous |
| Admission of Ebbings’ expert report (inflamatory images; scope-of-take statements) | Report improperly inflated pre-values, expanded geographical scope of taking, and included inflammatory nonprobative photos | Ebbings: report goes to credibility/weight, not admissibility; photos and external factors are relevant to market valuation | Mixed: court declined to exclude report for claiming pre-take flooding was ignored (credibility issue), but found error in admitting portions that changed the stipulated extent of the take and in admitting highly prejudicial images (pages with near-drowning article) |
| Exclusion of ODNR witnesses/evidence on lake management & 2013 flood | Such evidence was relevant to valuation at date of take and to rebut Ebbings’ claims; exclusion prejudiced ODNR | Ebbings: management/future ODNR conduct irrelevant to valuation; January 2013 flood evidence irrelevant | Reversed in part — court erred in excluding ODNR evidence about lake-level management and in barring ODNR from rebutting Ebbings’ extrinsic evidence; exclusion prejudicial and contributed to unfair trial |
| Jury instruction wording ("frequent, severe, and persistent") | Phrase mischaracterizes nature of the flooding and prejudices ODNR | Ebbings: language consistent with record and Doner; harmless | Overruled — no reversible error; court found instruction acceptable under the evidence and Doner language |
Key Cases Cited
- State ex rel. Doner v. Zody, 130 Ohio St.3d 446 (Ohio 2011) (held flooding was direct, natural, and inevitably recurring from the 1997 spillway and required appropriation proceedings)
- City of Akron v. Alexander, 5 Ohio St.2d 75 (Ohio 1966) (interpreting predecessor statute and recognizing narrow exception where a view may be denied if it would cause injustice and valuation is not complex)
- Blakemore v. Blakemore, 5 Ohio St.3d 217 (Ohio 1983) (abuse-of-discretion standard)
- Kokitka v. Ford Motor Co., 73 Ohio St.3d 89 (Ohio 1995) (review of jury-charge error: consider charge as a whole and whether it probably misled jury)
- Reichert v. Ingersoll, 18 Ohio St.3d 220 (Ohio 1985) (courts may reverse to protect integrity and fairness of proceedings)
- Berea City School Dist. Bd. of Educ. v. Cuyahoga Cty. Bd. of Revision, 106 Ohio St.3d 269 (Ohio 2005) (recent arm’s-length sale is strong evidence of value)