STATE OF OHIO, DEPARTMENT OF NATURAL RESOURCES, PLAINTIFF-APPELLANT, v. MARK L. KNAPKE REVOCABLE LIVING TRUST, ET AL., DEFENDANTS-APPELLEES.
CASE NO. 10-13-25
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT MERCER COUNTY
February 9, 2015
2015-Ohio-470
Appeal from Mercer County Common Pleas Court Trial Court No. 12-CIV-201 Judgment Affirmed
Scott D. Phillips and Frank J. Reed, Jr. for Appellant
Bruce L. Ingram and Thomas H. Fusonie for Appellees
{¶1} Plaintiff-appellant State of Ohio, Department of Natural Resources (ODNR) appeals the November 21, 2013 judgment of the Mercer County Common Pleas Court entering a jury‘s award of $293,250 to the defendants-appellees Mark L. Knapke Revocable Trust, et. al.1 for ODNR‘s appropriation of a permanent flowage easement on the Knapke farm.
{¶2} The facts relevant to this appeal are as follows. Mark Knapke purchased 34.5 acres of farmland in Mercer County, Ohio, from his nephew Chad Knapke in 2003. Mark subsequently transferred the Knapke farm into the Mark L. Knapke Revocable Trust.
{¶3} Due to a spillway modification to Grand Lake Saint Marys (“GLSM“) flooding increased on the Knapke farm shortly after it was purchased by Mark. In 2009, the Knapkes and other landowners who were impacted by the increased flooding that resulted from the GLSM spillway modification filed a complaint for a writ of mandamus with the Ohio Supreme Court seeking an order to compel ODNR and its Director to initiate appropriation proceedings for the taking of their property. Ultimately the Ohio Supreme Court determined a taking had occurred and ordered ODNR to commence appropriation proceedings for a permanent
{¶4} Following the Ohio Supreme Court‘s decision, with respect to this case, on November 27, 2012, ODNR filed a Petition to Appropriate Flowage Easement and to Fix Compensation for the Knapke farm. (Doc. No. 3). On December 19, 2012, the Knapkes filed their answer contending that ODNR had not made a good faith offer for the permanent flowage easement, and therefore demanded a jury trial. (Doc. No. 9).
{¶5} Since the parties ultimately disagreed as to the value of the flowage easement the case was set for a jury trial for a jury to determine the value of the appropriation. The extent of the take was not to be determined by the jury. The only determination to be made by the jury at trial was the compensation to the Knapkes for the flowage easement. The Knapkes were to be compensated for the difference between the value of the Knapke farm before and after the flowage easement. Pursuant to
{¶6} The jury trial was held October 2, 2013, through October 4, 2013. At trial Mark Knapke testified that he bought the 34.5 acre farm as a retirement investment from his nephew, Chad Knapke, in 2003 for $110,500. When he
{¶7} Mark testified that to his knowledge, there was little flooding on the farm prior to his purchasing it in 2003. (Tr. at 130-131). However, Mark testified that after he had purchased the property the farm had experienced flooding in seven of the ten years he had owned it. (Tr. at 133).
{¶8} Specifically, Mark testified that in 2003, the first year he owned the land, all 34.5 acres were flooded to the extent that the land was covered in water at least 5 to 6 feet deep, and that he could not access the farm because the surrounding roads were shut down due to high water. (Tr. at 136). The flooding also killed the crops that had been planted that year.
{¶9} Mark testified that the entire farm was again flooded in the Winter of 2005 with several feet of water on the farm for a week to ten days. (Tr. at 136). Mark testified that the property also flooded in the Spring of 2007, Fall of 2008, Spring of 2009, in 2010, and in late Winter/early Spring of 2011. (Tr. at 137-138). According to Mark the flooding in 2011 covered all of the land for multiple weeks. (Tr. at 140). Mark also testified that the land flooded in the Spring of 2013. (Id. at 141). Mark testified that the flooding carried debris onto the Knapke farm and that he received no assistance for the cleanup resulting from GLSM flooding. (Tr. at 146-47, 153).
{¶11} Chad testified that in 2003 they got no crops off of the flooded portion of the land. (Tr. at 183). He also testified that as a result of the flooding he had to use a boat to get on and off the Knapke farm. (Tr. at 182). Chad testified to extensive floods in 2005 and 2011 where the water became eight to ten feet deep and was on the property from 14 to 21 days. (Tr. at 185, 189). He also testified that in the Spring of 2013 the land flooded for 7-10 days at four to six feet deep, and that there was flooding in other years, specifically 2008, 2009, and 2010. (Tr. at 186, 190).
{¶12} In addition, Chad testified that as a result of the flooding the Knapke farm at times reeked of sewage, that there were fish, ducks, and geese on the property, including fish and other animal carcasses that would get trapped on the farmland as the water receded. (Tr. at 185). Chad further testified that trash and debris were carried onto the land by the flood water, including car tires, corn stalks, pop cans, plastic pieces, and large branches. (Tr. at 185-189). Chad
{¶13} The Knapkes’ expert, Richard Vannatta, then testified at trial as to his appraisal of the Knapke farm. Vannatta testified as to his qualifications as an appraiser and how he formed his opinions as to the value of the Knapke farm. Ultimately Vannatta testified that the value of the Knapke farm prior to the flooding/flowage easement was approximately $505,800, and that the current value of the Knapke farm with the permanent flowage easement was $50,600. Thus Vannatta testified that the Knapkes’ were owed the difference between those two amounts—$455,200—for ODNR‘s appropriation of a permanent flowage easement. (Tr. at 283). Vannatta‘s report containing his findings was introduced into evidence.
{¶14} After Vannatta‘s testimony was concluded, the Knapkes rested their case. ODNR objected to the inclusion of some of the photographs in Vannatta‘s report, including photographs of the GLSM spillway, neighboring
{¶15} In ODNR‘s case-in-chief, ODNR called its own expert, Thomas Horner, who testified as to his qualifications and how he formed his opinions on the value of the Knapke farm. Ultimately Horner testified that the Knapke farm prior to the flooding and appropriation was worth $345,600, and after the appropriation was worth $261,100. (Tr. at 378, 396). So according to ODNR‘s expert, the Knapkes were owed $84,500. Horner‘s report was also introduced into evidence.
{¶16} Before ODNR rested its case, ODNR stated that it wished to call another witness who would testify to changes in lake-level management since 2011. The court excluded the testimony of this witness, partly on the basis that the witness‘s testimony would go to the extent of the take, which was not an issue for the jury, rather than the value of the flowage easement, which was the sole issue for the jury‘s determination. ODNR summarily proffered the proposed witness‘s testimony and then rested its case. (Tr. at 462-463).
{¶17} Following closing arguments and jury instructions, the case was submitted to the jury. The jury returned a verdict for the Knapkes to receive $293,250 for the flowage easement.
ASSIGNMENT OF ERROR 1
THE TRIAL COURT ERRED BY REFUSING TO GRANT ODNR‘S REQUEST FOR A JURY VIEW.
ASSIGNMENT OF ERROR 2
THE TRIAL COURT ERRED BY ADMITTING LANDOWNERS’ IRRELEVANT, PREJUDICIAL EXHIBITS AND TESTIMONY, BUT AT THE SAME TIME EXCLUDING ODNR‘S RELEVANT, PROBATIVE EVIDENCE.
ASSIGNMENT OF ERROR 3
THE TRIAL COURT ERRED BY PROVIDING THE JURY WITH PREJUDICIAL JURY INSTRUCTIONS.
{¶19} As ODNR contends that that errors committed by the trial court cumulatively constituted prejudicial error and thus deprived ODNR of a fair trial, we will address the assignments of error together.
First, Second, and Third Assignments of Error
{¶20} In ODNR‘s first assignment of error, ODNR contends that the trial court erred by refusing to grant its request for the jury to view the Knapke farm. In ODNR‘s second assignment of error, it contends that the trial court erred by permitting “prejudicial exhibits and testimony” while also erroneously excluding testimony of a proffered witness of ODNR. In ODNR‘s third assignment of error,
Jury View
{¶21} ODNR first contends the trial court erred by denying its request for a jury view of the Knapke farm. We review a trial court‘s decision on whether to grant or deny a jury view under an abuse of discretion standard. See Proctor v. Wolber, 3d Dist. No. 5-01-38, 2002-Ohio-2593. An abuse of discretion “connotes more than an error of law or judgment; it implies that the court‘s attitude is unreasonable, arbitrary or unconscionable.” Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983)
{¶22}
{¶23} In further clarifying the circumstances where denial of a jury view may be proper, we held that
[d]enial of the view is appropriate where the only purpose it could serve would be to show the property in an unfair light, legislative purpose would not be served in granting the view of the premises, and the benefits of the view are outweighed by the injustice to the property owner and would deprive him of compensation to which he is entitled. Concomitantly, we find that denial is proper where, in the exercise of its discretion, the trial court finds that the prejudicial nature of the view exceeds its illustrative benefits or efficacy.
(Internal citations omitted). Id.
* * * in the exercise of its sound discretion, the court hereby determines that the request is without good cause, specifically because various photographs of the properties to be valued by the jury will be proffered as evidence, and because if a jury view was ordered, the jurors would be instructed that what they observed during the jury view could not be considered by them as evidence, the court believes it would be difficult for the jury to separate what the jurors see during a jury view and what is depicted in the photographs admitted into evidence in rendering the verdict. Therefore, the court determines that plaintiff‘s request for a jury view should be denied.
(Doc. 42).2
{¶25} The blanket wording of the statute in
{¶26} In situations of a specific permanent and fixed appropriation of a stretch of land—for example land next to a highway—a jury view may well assist the jury in understanding the logistics relative to the remaining property. However in this instance the flooding condition pertinent to the flowage easement is temporary and recurring. Unlike a highway appropriation or other fixed easement, the taking in this case is not fixed or constant and changes dramatically based on the temporary and recurrent flood patterns.
{¶27} The visual condition of the property thus ranges from land fully covered with growing crops, to land that is 99% covered in 5 to 6 feet of water, and then to land that is not covered with water or crops but with piles of debris and dead wildlife. A jury view during any one of these phases alone would have provided a mere snapshot of the land in one condition without any similar visual by the jury of the land in a completely different extreme, which could have been prejudicial to either party.
{¶28} On the other hand, pictures were introduced into evidence at trial depicting the land when it was flooded, and when crops were growing on the land. Extensive testimony was introduced through the Knapkes regarding the duration and the amount of the flooding on the property, and the fact that crops had been
{¶29} Thus the jury was clearly made aware that crops were growing on the Knapke farm at the time of trial, that the property was not flooded at the time of trial, and that the crops were healthy. The jury was clearly aware that crops were typically harvested on the property and that the flood pictures introduced by the Knapkes represented a temporary condition and were not indicative of how the Knapke farm looked at the time of trial. Therefore, on the basis of all of the testimony and the exhibits introduced into the record, it is unclear how ODNR can establish any resulting prejudice based on the trial court‘s decision to not grant the jury view.
{¶30} Moreover, ODNR has not established how something that could not even be considered as evidence by the jury was prejudicial to the outcome of this
Evidence
{¶31} ODNR next contends that the trial court made several errors in admitting and excluding evidence at the trial. In deciding whether a court erred in admitting or excluding evidence, we review a trial court‘s decision under an abuse of discretion standard. Ayers v. Ishler, 5th Dist. Delaware No. 11 CAE 01 0001, 2011-Ohio-4272, ¶ 23 (“The admission or exclusion of evidence is left to the sound discretion of the trial court.“)
{¶32} ODNR contends first that the trial court erred in allowing the Knapkes to introduce photographs of the GLSM spillway and photographs of flooding on surrounding streets and properties as part of Vannatta‘s appraisal report. ODNR objected to these photographs before the trial, during the trial, and when the photographs were introduced into evidence. Specifically, ODNR argues that the photographs were prejudicial, irrelevant and confusing to the jury.
{¶33} Conversely, the Knapkes contend that the photographs of the surrounding streets, land, and the GLSM spillway were used by Vannatta in his appraisal report to determine the value of the Knapke farm. Vannatta testified that he considered the surrounding properties, roads, and bridges, and the photographs
{¶34} Vannatta testified that due to flood-encumbered roadways a buyer would have to take into account inhibited traffic, the fact that EMS could not get to the property if there was a problem and that neighboring lands were also damaged by the flooding. (Tr. at 255). Vannatta testified that an informed willing buyer would consider these things. (Tr. at 256).
{¶35} In addition to the arguments made by Vannatta and the Knapkes, we believe the flooding of the surrounding areas was also corroborative of the severity of the flooding on the Knapke farm. Furthermore, even ODNR‘s expert‘s appraisal report included some discussion of access to the Knapke farm and the roads, clearly indicating the relevance of this issue to the appraisal process. Based on Vannatta‘s testimony, we cannot find that the trial court abused its discretion in admitting these specific photographs and we therefore agree with the Knapkes on this issue.
{¶36} Nevertheless, even if the photographs had been improperly admitted into evidence, we could not find these particular photographs to be prejudicial as there is no indication that they specifically influenced the jury‘s finding. Moreover, the photographs in Vannatta‘s report were clearly identified with captions, alerting the jury to what they were looking at, making it difficult for
{¶37} ODNR next contends that the trial court erred by allowing the introduction of a picture of the top half of a newspaper and a photograph of a car mostly submerged in water, which were both included in one page of Vannatta‘s appraisal report. The majority of the picture of the newspaper contains the headline “Communities flooded with woes,” and has two grainy black and white pictures that appear to illustrate some flooding. There is also the beginning of a news story on the left column of the newspaper titled “Divers pull woman from car.” The one paragraph visible of the story states that a woman was in critical condition as a result of nearly drowning. Below the picture of the top half of the newspaper is a photograph of part of a car that is sticking out of flood water with the caption: “View of car washed off roadway.” ODNR claims that the newspaper clip along with the photograph of the car washed off of the roadway in Vannatta‘s appraisal report were irrelevant and prejudicial. We agree with ODNR on this issue.
{¶38} Vannatta testified that a willing buyer would consider events such as those depicted in the news story and the photograph of the submerged car when determining to buy the property. Vannatta identified the article and the
{¶39} Regarding why Vannatta included this story and the photograph in his report, he testified, “[t]here‘s a fear in the neighborhood if things like this are continually happening and an informed person sees that, then that‘s one thing that would even say to them maybe I don‘t want to buy here. If I do buy, I want a significant * * * reduction in price or I‘m not going to buy.” (Tr. at 255).
{¶40} We might accept to some extent the Knapkes’ claim that a willing buyer would consider stories such as these. Nevertheless, we find that even if these photographs had some relevance, they were more prejudicial than probative and should have been redacted or excluded from the trial altogether. Thus ODNR‘s argument on this point is well-taken and we find it was error to allow admission of this particular page of the report. However, we cannot find that the prejudicial impact to the trial as a whole of this single page in Vannatta‘s report constitutes reversible error given that it is only one page out of a 55 page report full of pictures, which itself was only one of many exhibits introduced into evidence at the trial.
Your honor, if permitted, ODNR would have called Brian Miller who is an ODNR employee. Mr. Miller would have testified about the background of the lake prior to 1997, would testify to what happened after the modifications in 1997. He would have testified to the implementation in 2011 of lake-level management and how that has had a positive impact on flooding in the future and would have testified with respect to other matters.
(Tr. at 462-63).
{¶42} The trial court responded to ODNR‘s proffer by saying that “consistent with the court‘s ruling on the lake-level management minutes and lake-level-logger data identified and proffered as Exhibit 7, the foundation of which would have been that testimony, the court will again renew its ruling to exclude the testimony * * * [.]” (Tr. at 463).
{¶43} The prior ruling the court is referring to, contained the following language.
With regard to * * * the lake-level management issue, consistent with the court‘s prior rulings, the court believes that the Supreme Court of the State of Ohio established that this easement was taken upon the construction in 1997 of the new spillway and lack of lake-level management, and therefore, based thereon determined that a writ of mandamus should be issued to order the State of Ohio to initiate eminent domain proceedings to compensate property owners for the flowage easement taken. It having been taken, although the date for the valuation has been deferred and given to the trial court and the
court has ruled consistent with case law that that should be established for the benefit of the property owner at the time of the compensation trial rather than the actual taking, nevertheless the court believes that subsequent lake-level management issues do not affect the permanency of the take and it‘s the rights that are taken by the State of Ohio and now are being compensated for through these trial proceedings that is at issue. It is not the use of that easement but rather the effect of the taking upon the valued property. And unless and until it is established that any such remediation efforts by the State of Ohio, whether that would be to construct a new dam or lake-level management or whatever has somehow affected the original take and the extent of the rights taken by the State of Ohio and that matter is litigated, whether it be to the Supreme Court or to another trial court, the court determines that the use of the easement through lake-level management is not relevant to the issue of the value of the take.
(Tr. at 461-462).
{¶44} Under the circumstances and based upon the trial court‘s analysis, we cannot find that the trial court abused its discretion in denying ODNR‘s proffered testimony. However, even if it had been error for the trial court to prevent ODNR‘s witness from testifying, ODNR is not able to establish any resulting prejudice.
{¶45} Any new lake-level management as of 2011 that resulted in reduced flooding would inherently have been considered by both appraisers when looking at the Knapke farm and the extent to which the flooding would impact the value of the permanent flowage easement. In fact, ODNR‘s appraisal report specifically stated that “[t]he affects [sic] of the[] flood conditions on the subject [property] are
Jury Instructions
{¶46} ODNR next contends that the trial court erred by using a particular phrase in one of its jury instructions. The specific instruction objected to is Jury Instruction Number 2, titled “Nature of the Action or Description of Case.” It reads as follows.
This is an appropriation action brought by [ODNR], to acquire a permanent and perpetual flowage easement across 33.80 acres of the Knapke Trust‘s approximately 34.5 acre farm located in Liberty Township, Mercer County, Ohio, to grant the State the right to frequently, severely, and persistently flood those acres. * * * In this case the permanent and perpetual flowage easement which has been taken is for the increased flooding that occurred and will continue to occur as a natural result of the reconstruction of the western spillway of the Grand Lake in 1997 and lack of lake level management by the Ohio Department of Natural Resources which flooding is intermittent but frequent, severe, and persistent. It has been determined that such intermittent and temporary flooding will inevitably recur with regularity and is greater in frequency, extent, and duration than any flooding that naturally occurred on the Knapke Trust‘s farm prior to the construction of the 500-foot western spillway in 1997 and lack of lake level management by [ODNR].
(Emphasis Added.) (Doc. 54).
{¶48} Initially we would note that while the phrase “intermittent and inevitably recurring” was used in the Doner decision by the Ohio Supreme Court and placed in the syllabus, the word “frequent” is used repeatedly in the Doner decision to describe the amount of flooding required to constitute a taking. Doner at ¶¶ 80-85. Thus we cannot find that the word frequent is improper in the jury instruction leaving us only to determine if the words “severe and persistent” were erroneous and prejudicial.
{¶49} First, the words severe and persistent as used in this jury instruction clearly constituted an accurate description of the trial evidence of the flooding in this case. In terms of severity, the flooding impacted 33.8 out of the 34.5 acres, essentially the entire Knapke farm. The flooding was, at times, testified to be eight to ten feet deep. Testimony as to both of these factors could be described as
{¶50} Second, when looking at this jury instruction in its entirety, there are further qualifying statements that clearly inform the jury as to the nature of the flooding. After the second use of the words in question, the flooding is described as “intermittent and temporary,” which will “inevitably recur with regularity.” The words are thus clarified using the language desired by ODNR.
{¶51} Third, and finally, we believe it is difficult if not impossible for ODNR to establish any prejudice resulting from this jury instruction because ODNR‘s own expert used the very phrasing “frequently, severely, and persistently” to describe the flooding conditions on the Knapke farm at least five times in his reports. Additionally, there are multiple other mentions of the terms frequent, and severe (or severity) contained in his reports.
{¶52} Thus, for example under the heading “Property Rights Appraised” Horner‘s report contains the language “[a] Flowage Easement * * * granting to the State of Ohio the right, during periods of sufficient levels of precipitation, to
{¶53} As a result, while it may have been better practice for the court to simply use the language contained in the syllabus of Doner of “intermittent and inevitably recurring,” we cannot find that the trial court‘s use of the words frequent, severe, and persistent was erroneous, or prejudicial in these specific circumstances. Therefore ODNR‘s arguments as to these issues are not well-taken.
Cumulative Error
{¶54} ODNR makes the argument that while none of the errors it assigns to the trial may individually be prejudicial, cumulatively they constitute prejudicial error. In fact, at oral argument, ODNR actually conceded that no single error was likely reversible.
{¶56} Among Federal Appellate Courts, this issue is similarly undecided. The Third Circuit Court of Appeals has affirmatively stated that it does not apply cumulative error in civil cases. See U.S. S.E.C. v. Infinity Group Co., 212 F.3d 180, 196 (3d Cir.2000). The Fourth, Tenth, and Eleventh Circuits have all indicated that their courts have not affirmatively determined the issue of whether cumulative error applies in civil cases. See Greig v. Botros, 525 Fed.Appx. 781, 795 (10th Cir.2013); Esoteric, LLC v. One (1) 2000 Eighty-Five Foot Azimut Motor Yacht Named M/V STAR ONE, 478 Fed.Appx. 639 (11th Cir.2012) at fn.3; Anthony v. Ward, 336 Fed.Appx. 311, 322 (4th Cir.2009). On the other hand, the Second, Sixth, Seventh, Ninth and Federal Circuits have all stated that they would apply the cumulative error doctrine in civil cases (and some have actually applied it to reverse a judgment). Malek v. Federal Ins. Co., 994 F.2d 49, 55 (2d Cir.1993); Kendel v. Local 17-A United Food & Commercial Workers, 512 Fed.Appx. 472, 485 (6th Cir.2013); Thompson v. City of Chicago, 722 F.3d 963, 979 (7th Cir.2013); Jerden v. Amstutz, 430 F.3d 1231, 1240-41 (9th Cir.2005); Hendler v. United States, 952 F.2d 1364, 1383 (Fed.Cir.1991).
{¶57} On the basis of the preceding legal authority there is an argument to be made that cumulative error should not even be applied at all in any civil case, let alone whether it should be applied in this particular instance. However, assuming without finding that cumulative error applies in civil cases, even the potential or assigned errors on their face do not amount to prejudicial error such that ODNR was deprived of a fair trial in this case. In the cases where cumulative error is applied to civil cases, courts have held that merely having multiple errors does not require reversal if those errors still, when taken in context of the entire trial, do not produce an unfair trial. See Michigan First Credit Union v. Cumis Ins. Soc., Inc., 641 F.3d 240, 251 (6th Cir.2011).
{¶58} In this case the parties both brought in their own expert appraisers to value the flowage easement. The Knapkes’ expert valued the flowage easement at $455,200, and ODNR‘s expert valued the flowage easement at $84,500. The jury returned a verdict valuing the flowage easement at $293,250. Thus the amount
{¶59} In determining its valuation, the jury was presented with ample testimony as to extra work caused by the flooding. There was the clear testimony that the crops were completely destroyed in 2003, and Chad Knapke testified that lower yields as a result of the flooding was a serious concern. In addition, Chad Knapke testified that because of the flooding he had to chisel up the ground every year that there was water on the Knapke farm due to soil compaction. Chad also testified that there was up to three feet of debris on the land at times carried by the flood, which included car tires, dead animals and big branches he had to burn or take to a landfill. Chad testified that there was a sewage smell on the land at times. He also testified that during the worst floods the property was inaccessible without trespassing or without a boat. Chad also testified, as did Vannatta, about potential tile blowouts due to the flooding.
{¶60} In sum, in the context of the entire trial, the verdict reached by the jury does not seem to be unreasonable based on the evidence given and based on the fact that the verdict is well within the range of appraisals provided by both parties. Nor can we find when taking in context the entire trial, that ODNR was
{¶61} Accordingly as we have found no prejudicial error in the particulars assigned in ODNR‘s first, second, and third assignments of error, either individually or cumulatively, the first, second, and third assignments of error are overruled.
{¶62} For the foregoing reasons the judgment of the Mercer County Common Pleas Court is affirmed.
Judgment Affirmed
PRESTON, J., concurs in Judgment Only.
/jlr
ROGERS, P.J., DISSENTS.
{¶63} For the reasons stated more fully in the majority opinion of ODNR v. Ebbing, 3d Dist. Mercer No. 10-13-24, I must respectfully dissent from the opinion of the majority.
First Assignment of Error
{¶64} I believe the clear and unambiguous language of
{¶65} Because I believe courts must follow the clear and unambiguous language of the General Assembly, I would sustain ODNR‘s first assignment of error.
Second Assignment of Error
{¶66} I agree with the majority opinion only to the extent that the admission of the photograph of the near drowning girl was prejudicial and should have been excluded from the trial. I must emphasize that I believe that such a photograph has absolutely no relevance to the issue of valuation and was used by the Knapkes solely to enflame the passions of the jury.
{¶68} Accordingly, I would sustain ODNR‘s second assignment of error.
Third Assignment of Error
{¶69} I concur with the majority‘s analysis and disposition of ODNR‘s third assignment of error regarding the jury instructions.
Cumulative Error
{¶70} Both the majority opinion and I recognize that there is a split in Ohio and Federal Appellate Courts as to whether it is appropriate to apply cumulative error in a civil case. I believe that some of the errors are prejudicial and reversible
{¶71} There is no doubt that the ODNR has taken a permanent flowage easement from the Knapkes and that the Knapkes deserve just compensation for the taking. I also agree with the Supreme Court of Ohio that ODNR should try to obtain “[a]n efficient, orderly, and prompt resolution of all of the relators’ claims * * *.” State ex rel. Doner v. Zehringer, 139 Ohio St.3d 314, 2014-Ohio-2102, ¶ 15. However, I cannot sit idly by and watch ODNR be denied a fair trial even if I do not agree with certain litigation tactics of ODNR.
{¶72} For reasons stated more fully in the majority opinion of ODNR v. Ebbing, I would reverse the trial court‘s judgment and remand this matter for further proceedings.