KAMO ELECTRIC COOPERATIVE, INC., a Rural Electric Cooperative Corporation and K-POWERNET, LLC, an Oklahoma Limited Liability Company, Plaintiffs/Appellants,
CURTIS L. NICHOLS and LORI D. NICHOLS, Husband and Wife, Defendants/Appellees.
Mandate Issued: 11/14/2017
FROM THE DISTRICT COURT OF MAYES COUNTY, OKLAHOMA HONORABLE
J. DWAYNE STEIDLEY, TRIAL JUDGE
Stratton Taylor, Clint Russell, TAYLOR, FOSTER, MALLETT,
DOWNS, RAMSEY & RUSSELL, Claremore, Oklahoma, for
Ellis Ritchie, K. ELLIS RITCHIE, P.C., THE RITCHIE LAW FIRM,
Pryor, Oklahoma, for Defendants/Appellees.
F. Burdeaux, AMERICAN ELECTRIC POWER SERVICE
CORPORATION/PUBLIC SERVICE COMPANY OF OKLAHOMA, Dallas,
Texas, for Amicus Curiae Public Service Company of Oklahoma.
Sullivan, ENABLE MIDSTREAM PARTNERS, LP, Oklahoma City,
Oklahoma, for Amicus Curiae Enable Midstream Partners.
W. Hobbs, WESTERN FARMERS ELECTRIC COOPERATIVE, INC.,
Anadarko, Oklahoma, for Amicus Curiae Western Farmers
Electric Cooperative, Inc.
THOMAS THORNBRUGH, VICE-CHIEF JUDGE.
Appellants, Kamo Electric Cooperative, Inc., and K-Powernet,
LLC, appeal the result of a condemnation trial awarding
Appellees compensation of $30, 615 for an easement across 3.9
acres of rural land. On review, we reverse this decision and
remand for further proceedings.
Kamo and K-Powernet sought a power line/telecommunications
easement across approximately 3.9 acres of rural land that
was used primarily for cattle. The parties were unable to
agree on a negotiated price, and a condemnation proceeding
ensued. The appointed commissioners found that the value of
the property taken, plus damages to the remainder, totaled
$20, 000. Both parties objected, and the matter went to
trial. During pre-trial and trial proceedings, the
admissibility of the testimony of Appellees' expert, Matt
Earnest (Appraiser) was a major issue. The parties appear to
have been in broad agreement that the general fee simple
purchase price of similar agricultural land was in the region
of $2, 000 per acre. Appraiser opined, however, that the 3.9
acres taken was worth approximately $8, 000 per acre, based
on the negotiated acquisition price of similar easements by
public utilities in the area, rather than sales of similar
property for agricultural or domestic use.
Appellants objected to the admissibility of this testimony,
but the trial judge found it admissible. The jury found just
compensation for the taking to be $30, 615, approximately $7,
800 per acre. Appellants filed a motion for new trial, which
was denied. Kamo and K-Powernet now appeal this decision on
the grounds that Appraiser's testimony was inadmissible
because his methodology was faulty. The Amici noted
above have filed a joint brief in support of Kamo's
Appellate review of a motion for a new trial where the trial
judge presided at the trial, heard the testimony, observed
the witnesses, and had full knowledge of the proceedings is
one of abuse of discretion. Gowens v. Barstow, 2015
OK 85, ¶ 11, 364 P.3d 644. An abuse of discretion occurs
if a decision is based on an erroneous conclusion of law or
where there is no rational basis in evidence for the ruling.
See Smith v. City of Stillwater, 2014 OK 42,
¶¶ 10-11, 328 P.3d 1192. The conclusions of law in
a condemnation case are subject to the de novo
standard of review. State ex rel. Dep't of Transp. v.
Little, 2004 OK 74, ¶ 10, 100 P.3d 707. De
novo review is "plenary, independent and
nondeferential." Id. (footnote omitted).
APPLICABLITY OF DAUBERT TO APPRAISER'S TESTIMONY
Appellants and Amici frame the evidentiary question
in this case primarily in Daubert terms. The Amicus
Brief goes so far as to argue that the result should be
reversed because the court did not make the detailed
Daubert findings required by certain federal courts.
We find, however, little or no applicability of the core
Daubert principles to this case.  The question
of what appraisal methods give rise to admissible evidence in
an Oklahoma condemnation action is typically one of Oklahoma
common law and our constitutional requirement of just
compensation, rather than one of scientific validity.
The genesis of what are commonly referred to as the "
Daubert factors" came in a case that involved
"core" scientific testimony. In Daubert v.
Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786
(1993), the question was whether expert testimony that a
mother's prenatal ingestion of the prescription drug
Bendectin was the cause of birth defects was admissible. In
this context, the U.S. Supreme Court stated a number of
considerations that go to the basic reliability of scientific
testimony, including whether the methodology can be (and has
been) tested; whether the theory or technique has been
subjected to peer review and publication; and the known or
potential rate of error inherent to the methodology. These
factors fit well in a conventional scientific field such as
medicine, which has a tradition of published research,
repeatable results obtained pursuant to the scientific
method, and peer review. The Daubert test remains an
excellent gauge of the reliability of this type of testimony.
In Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137,
119 S.Ct. 1167 (1999), the Supreme Court held that
Daubert's "gatekeeping" obligation,
requiring an inquiry into both relevance and reliability,
applied not only to "scientific" testimony, but to
all expert testimony. The immediate problem, recognized by
the Court in Kumho Tire, was that the factors
identified in Daubert were specifically adapted to
traditional "hard" science, and may not have any
applicability in other specialist fields. Unfortunately, the
Kumho Tire Court gave little guidance as to what
factors should be considered in place of peer review,
independent scientific testing and statistical rates of
error, informing us only that the Daube rt factors
do not constitute a "definitive checklist or test"
and that the gatekeeping inquiry must be "tied to the
facts" of a particular case. Id. at 150, 119
S.Ct. at 1175. The Kumho test shrinks to little more
than the previous "general acceptance" test in some
Given this history, we are inclined to view the current
matter as one of general admissibility and reliability
pursuant to Oklahoma common law and the legal parameters of
"just compensation" pursuant to Article II, section
24 of the Oklahoma Constitution, rather than a
In our assessment of whether Appraiser's methodology was
legally permissible to determine the just compensation that
our Constitution requires for a taking, two of
Appellants' arguments stand out. The first is that
Appraiser used previously negotiated sales of easements to
parties with the power and need to condemn as a baseline for
valuation. Appellants argue that such methodology is either
invalid pursuant to current law, or that it cannot properly
reflect just compensation because it resulted in a per-acre
value for the easement that was approximately four times
greater than the apparent fee simple value of ...