Court of Appeals of Ohio, Fourth District, Scioto
Jerry Wray, Director, Ohio Department of Transportation, Plaintiff-Appellant,
Gahm Properties, Ltd., et al., Defendants-Appellees.
Michael DeWine, Ohio Attorney General, and William J. Cole
and Marc A. Sigal, Assistant Attorneys General, Columbus,
Ohio for appellant.
Michael Braunstein, Clinton P. Stahler, and Matthew L.
Strayer, Columbus, Ohio for appellees.
DECISION AND JUDGMENT ENTRY
WILLIAM H. HARSHA, JUDGE
The Director, Ohio Department of Transportation (ODOT)
appeals the trial court's entry awarding costs and
expenses to Gahm Properties, Ltd., in an appropriation
action. ODOT notes that a property owner is not entitled to
recover costs and expenses unless the property was used for
agricultural purposes, and contends there was no evidence of
such use here. Gahm Properties argues it presented evidence
that it harvested timber, which is an agricultural use of the
property, so the trial court properly awarded it costs and
We find that the plain language of the statute is
unambiguous. "Agriculture" is defined to include
"timber," which means "growing trees or their
wood." Gahm Properties presented competent, credible
evidence that it harvested timber on the property. Thus we
affirm the trial court's judgment.
FACTS AND PROCEDURAL BACKGROUND
ODOT filed a petition to appropriate property owned by Gahm
Properties. At trial the parties presented expert witness
testimony and appraisal reports concerning the value and use
of the property. The parties agreed that the property is
zoned agricultural and that the Scioto County Auditor
identifies the property as woodland, pasture and tillable
land. The property originally had a farmhouse and three large
barns that were subsequently removed. Gahm Properties'
expert witness, appraiser Richard Vannatta, prepared an
appraisal that described the property and improvements
Natural site improvements consist of various forms of natural
growth, such as deciduous trees and herbage. However, for the
most part, the owner has harvested the heavily wooded areas.
expert witness, appraiser Lance Brown, responded on
cross-examination that he was unaware that Gahm Properties
harvested and sold timber from the property, but it
"doesn't surprise" him. On redirect, Brown was
asked, "Is the property used for agricultural
purposes?" and he answered, "No."
The jury returned a verdict awarding Gahm Properties $330,419
as compensation for ODOT's taking. Gahm Properties filed
a motion for an award of costs and expenses under R.C.
163.21(C)(2). ODOT opposed the motion and requested discovery
and an evidentiary hearing. The trial court initially set the
matter for a hearing and ordered Gahm Properties to respond
to ODOT's discovery requests. However, ODOT later asked
the court to convert the hearing to a telephonic status
conference to allow it time to complete discovery. The trial
court agreed to hold a telephonic status conference. After
the status conference, and without holding an evidentiary
hearing, the trial court awarded Gahm Properties costs and
expenses totally $32,224. Neither a transcript nor an App.R.
9(C) statement of this telephonic conference is part of the
ASSIGNMENT OF ERROR
ODOT designated a sole assignment of error for review:
I. THE TRIAL COURT ERRED IN AWARDING COSTS AND EXPENSES UNDER