STATE OF OKLAHOMA, ex rel. DEPARTMENT OF TRANSPORTATION, Plaintiff/Appellee,
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
FROM THE DISTRICT COURT OF PONTOTOC COUNTY, OKLAHOMA
HONORABLE C. STEVEN KESSINGER, JUDGE.
Bart Fite, FITE LAW FIRM, Muskogee, Oklahoma, for Appellee,
Agee, Logan Beadles, GARVIN AGEE CARLTON, Pauls Valley,
Oklahoma, for Appellants.
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
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
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.
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.
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"
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.
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.
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.
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 ...