503 N.E.2d 177 | Ohio Ct. App. | 1985
This is an appeal by defendants-appellants Stanley W. Kebe, Sr. and Tiedeman Road Tennis and Industrial Park Company from a judgment of $635,000 awarded by a jury as compensation for property appropriated by the plaintiff-appellee state of Ohio.
Appellants owned property in the city of Brooklyn, Ohio, located in the path of construction of interstate highway I-480. This action was tried originally on December 10 through 14, 1979. The judgment, however, was overturned by the trial court in an order granting a new trial on the grounds that the verdict was inadequate, not sustained by the weight of the evidence, and apparently given under the influence of prejudice. The judgment of the trial court was affirmed by this court in Weir v. Kebe (Apr. 15, 1982), Cuyahoga App. Nos. 43722 43723, unreported.
Probate court case No. 892769 (App. No. 48752) was instituted against Stanley W. Kebe, Sr., Paul J. Hribar, and others as the joint owners of a parcel of property ultimately appropriated by the state of Ohio. Probate court case No. 892847 (App. No. 48753) was instituted against Tiedeman Road Tennis and Industrial Park Company as the owner of a contiguous parcel of property ultimately *54 appropriated by the state of Ohio. The cases were consolidated for trial and, by stipulation of the parties, it was agreed that the two respective parcels would be appraised and valued as one parcel.1
The action was again brought to trial on February 13 through 17, 1984. Appellants owned 35.15 acres of which 16.19 acres were physically taken by the state of Ohio. The jury awarded appellants $414,000 as compensation for the property taken and $221,000 as compensation for damages to the residue of the property not physically taken. The total award was $635,000. The appellants2 appeal from that judgment and assign four errors for review.
"The trial court erred in denying appellants' motions to dismiss.
"a. The State of Ohio failed to describe the property to be appropriated as required by law.
"b. The State of Ohio violated the provisions of Ohio Revised Code §
"c. The State of Ohio violated the provisions of Ohio Revised Code §
Appellants filed motions to dismiss on February 3, 1983 and January 12, 1984. Both motions were overruled by the trial court.
We do not agree. R.C.
"An agency which has met the requirements of section
"(A) A description of each parcel of land or interest or right therein sought to be appropriated, such as will permit ready identification of the land involved; * * *" (Emphasis added.)
As expressly stated in the statute, the only description necessary is a description of the property sought to be appropriated. The one-acre parcel that appellants contend was not described in the petition was not appropriated by the state of Ohio. This parcel was part of the residue of approximately nineteen acres which was also not described in the petition. Appellants' contention is not well-taken.
Initially, this court takes note of the fact that the statute provides for inaction on the part of the state as well as for the three courses of action outlined above:
"Upon notification that the director has found acquisition at that time not to be in the public interest, or upon theexpiration of the one hundred twenty day period or any extensionthereof, if no notice has been received from the director, saidauthority shall proceed in accordance with law." (Emphasis added.)
Thus, the zoning commission or other local authority "shall proceed in accordance with law" if at the expiration of the one-hundred-twenty-day period no notice has been received from the state indicating its intentions regarding the property in question. Consequently, we hold that the state did not violate R.C.
"In order to encourage and expedite the acquisition of real property by agreements with owners, to avoid litigation and relieve congestion in the courts, to assure consistent treatment for owners in the many state programs, and to promote public confidence in public land acquisition practices, heads of state agencies shall, to the greatest extent practicable, be guided by the following policies:
"* * *
"(C) Before the initiation of negotiations for real property, the head of the state agency concerned shall establish an amount which he believes to be just compensation therefor and shall make a prompt offer to acquire the property for the full amount so established. In no event shall such amount be less than the agency's approved appraisal of the fair market value of such property. * * *"
The record indicates that the state presented appellants with a fair market valuation offer of $583,791 in September and November 1978. Therefore, the provisions of R.C.
Appellants also argue that the state violated R.C.
The record indicates, however, that the state did not approve
its own appraisals in toto. According to the state, the offer of $583,791 was arrived at through the honest and discretionary finding of fair market value which is consistent with R.C.
This court is inclined to agree with the state's contention that its authorized appraisal does not automatically become anapproved appraisal for purposes of R.C.
Moreover, even if the state had violated R.C.
Appellants' contention is not well-taken. Accordingly, Assignment of Error I is overruled.
"The trial court erred in setting the date of take, and thus date of valuation, as December 10, 1979."
Generally, in an appropriation case, the value of the property being taken is determined as of the time of trial, Board ofEducation v. Hecht (1955),
Appellants contend that the date of take should have been established in March 1978 because that date corresponds with the actual interference by the state of Ohio with their property rights. Appellants point to the following occurrences which allegedly disturbed their enjoyment of their property rights:
(1) the state notified appellants' tenants, pursuant to R.C.
After a review of the alleged acts of interference by the state, we are not convinced that any of the acts referred to by appellants would constitute such interference as would justify changing the date of take which was set by the trial court,i.e., December 10, 1979.
Notification to appellants' tenants that relocation benefits were available or the one-hundred-twenty-day freeze on the property cannot serve as the basis for changing the date of take because "the mere expression or conveyance of an intent to take private property in the future * * * is not such a substantial interference with private property as to constitute a `taking.'"J. P. Sand Gravel Co. v. State (1976),
"The trial court erred in preventing appellants from offering any testimony at trial concerning the value of their land including the oil wells which were located on appellants' property."
At the first trial of this matter, the trial court excluded evidence of potential oil production on appellants' land. Appellants thereafter cross-appealed this ruling and this court affirmed the judgment of the trial court:
"Although a jury in determining the value of property at its highest and best use may consider uses other than those which are permissible under existing zoning, Masheter v. Kebe (1976),
Prior to the second trial, the trial court granted appellee's motion in limine which prevented appellants from offering any evidence as to the oil production value of the property. Appellants argue that the trial court erred in excluding this evidence.
The doctrine of the "law of the *58
case," however, is applicable here4 and we are bound to adhere to this court's prior determination of this issue. The doctrine provides that a decision of a reviewing court in a case remains the law of the case as to all relevant legal questions in all subsequent proceedings at both the trial and appellate levels. Nolan v. Nolan (1984),
"The trial court erred in permitting state witnesses Constance Baus and Agnes Welch to testify."
In their fourth assignment of error, appellants argue that the trial court should have excluded the testimony of two state witnesses due to the fact that their names were not included on the pretrial witness list.
The trial court clearly possessed the discretion to exclude this testimony if appellee intentionally failed to include the witnesses in a pretrial witness list. See Paugh Farmer, Inc. v.Menorah Home for Jewish Aged (1984),
Accordingly, the judgment of the trial court is affirmed.
Judgment affirmed.
ANN MCMANAMON and COX, JJ., concur.
COX, J., of the Seventh Appellate District, sitting by assignment in the Eighth Appellate District.