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State, ex rel. Department of Transportation v. Pennington

Court of Appeals of Oklahoma, Division I

April 12, 2018

STATE OF OKLAHOMA, ex rel. DEPARTMENT OF TRANSPORTATION, Plaintiff/Appellee,
v.
WADE PENNINGTON and SHARON PENNINGTON, husband and wife; and PENNINGTON PROPERTIES, L.L.C., Defendants/Appellants, The Pontotoc County Board of Commissioners, Defendant.

          Mandate Issued: 05/09/2018

          APPEAL FROM THE DISTRICT COURT OF PONTOTOC COUNTY, OKLAHOMA HONORABLE C. STEVEN KESSINGER, JUDGE.

          C. Bart Fite, FITE LAW FIRM, Muskogee, Oklahoma, for Appellee,

          Brett Agee, Logan Beadles, GARVIN AGEE CARLTON, Pauls Valley, Oklahoma, for Appellants.

          LARRY JOPLIN, JUDGE.

         ¶1 Defendants/Appellants Wade Pennington and Sharon Pennington, husband and wife, and Pennington Properties, L.L.C. (collectively, Defendants), seek review of the trial court's order granting judgment on a jury's verdict which determined the value of Defendants' property taken by eminent domain and condemned for construction of highway improvements by Plaintiff/Appellee State of Oklahoma, ex rel. Department of Transportation (State). In this appeal, Defendants complain the trial court erred (1) in excluding evidence of State's "preliminary" construction plans, different from the "current" plans, (2) in refusing to instruct the jury concerning State's commitment to follow the "current" plan, and (3) in excluding rebuttal testimony undermining the credibility of State's appraiser.

         ¶2 Defendants own property on Highway 19 in Pontotoc County, Oklahoma. On the property, Defendants operate a used-car lot and salvage operation, a truck-and-trailer repair shop, offices of Pennington Transportation, and a convenience store. State sought to condemn a portion of Defendants' property -- 1.27 acres for highway right-of-way, .01 acres for a utility easement, and.09 acres for a temporary construction easement -- to widen Highway 19 adjacent to Defendants' property. Defendants objected to State's plans as restricting ingress and egress to their businesses, impairing the operation of their truck-and-trailer repair operation, limiting the view of their used-car lot from the highway, and requiring the relocation of their diesel fuel pump.

         ¶3 Commissioners were appointed to appraise and determine just compensation for the value of Defendants' property actually taken and the damage to the remainder. The Commissioners returned their report assessing damage to Defendants' property in the amount of $342, 000.00. State deposited assessed sum, which Defendants withdrew with the trial court's permission. State objected to the Commissioners' report, and demanded a jury trial on the issue of just compensation.

         ¶4 Prior to trial, and as a result of negotiations between the parties, State agreed to a revised plan for construction of the highway improvements, addressing some of Defendants' grievances. Particularly, State agreed to construct five new entrances to Defendants' property. The week before trial, the trial court disposed of the numerous motions in limine filed by State, by which the trial court excluded, inter alia, the admission of any evidence or testimony concerning the "preliminary" construction plans prior to the negotiated changes embodied in the "current" plans, as well as any testimony or evidence concerning the amount of the Commissioners' award.

         ¶5 On the day of trial, Defendants announced their intention to offer evidence of the billing practices of Mr. Grace, an expert witness and the appraiser for State in this and other cases, said to demonstrate the witness's gross over-billing of time in other cases and, consequently, undermining his credibility in the present case, which the trial court denied admission. The Defendants also requested the jury be allowed to view the property, which request the trial court denied. The trial court again refused to permit the admission of any testimony or evidence concerning damage to Defendants' property under the "preliminary" plans.

         ¶6 At trial, Defendants first presented the testimony of their appraiser, Mr. Hoyt. Mr. Hoyt appraised Defendants' total damages for the property taken and consequential damages to the remainder -- including construction of a building, paving and relocation of the diesel fuel pump -- in the sum of $161, 700.00. Defendant Wade Pennington then testified concerning the impaired access to his businesses resulting from the highway improvements, and the changes to the property made necessary by the highway improvements.

         ¶7 State then offered the testimony from the head of its Civil Engineering Division, Mr. McIntosh. Mr. McIntosh testified and presented evidence showing that the new driveways as depicted in the "current" plans would be more than sufficient to allow trucks-and-trailers to enter the property and would permit the enjoyment of the property as used prior to the highway improvements. State also presented the testimony of its appraiser, Mr. Grace, who assessed total damage to Defendants' property and remainder in the sum of $18, 600.00.

         ¶8 Upon instruction, the jury returned its verdict for Defendants, and fixed their recovery of just compensation in the amount of $55, 600.00. The trial court granted judgment on the jury's verdict to Defendants in that sum and, based on the Defendants' withdrawal of the $342, 000.00 deposited by State in accord with the Commissioners' report, held that Defendants owed State the difference between the sum withdrawn and the jury's verdict, in the amount of $286, 400.00. Defendants appeal.

         ¶9 The trial court is vested with wide discretion in determining what information it receives in a condemnation proceeding. See, e.g., State ex rel. Dep't. of Transp. v. Little, 2004 OK 74, ¶11, 100 P.3d 707, 712. The "admissibility of evidence of value in condemnation cases is more largely within the trial court's discretion than is the determination of other issues, so that error predicated upon the exclusion of certain evidence will not be sustained except in cases of manifest error." State ex rel. Dept. of Transportation. v. Lamar Advertising. of Oklahoma, Inc., 2014 OK ...


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