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Wray v. Gahm Properties, Ltd.

Court of Appeals of Ohio, Fourth District, Scioto

January 4, 2018

Jerry Wray, Director, Ohio Department of Transportation, Plaintiff-Appellant,
v.
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

         {¶1} 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 expenses.

         {¶2} 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.

         I. FACTS AND PROCEDURAL BACKGROUND

         {¶3} 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 stating:

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.

         ODOT's 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."

         {¶4} 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 record.

         II. ASSIGNMENT OF ERROR

         {¶5} ODOT designated a sole assignment of error for review:

I. THE TRIAL COURT ERRED IN AWARDING COSTS AND EXPENSES UNDER R.C. ...

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