[Cite as Dept. of Natural Resources v. Ebbing, 2015-Ohio-471.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                              MERCER COUNTY




STATE OF OHIO, DEPARTMENT OF
NATURAL RESOURCES,

        PLAINTIFF-APPELLANT,                                     CASE NO. 10-13-24

        v.

STANLEY EBBING, ET AL.,                                          OPINION

        DEFENDANTS-APPELLEES.




                 Appeal from Mercer County Common Pleas Court
                           Trial Court No. 12-CIV-145

                       Judgment Reversed and Cause Remanded

                           Date of Decision: February 9, 2015




APPEARANCES:

        Scott D. Phillips and Frank J. Reed, Jr. for Appellant

        Bruce L. Ingram and Thomas H. Fusonie for Appellees
Case No. 10-13-24


ROGERS, P.J.

       {¶1} Plaintiff-Appellant, the State of Ohio, Department of Natural

Resources (“ODNR”), appeals the judgment of the Court of Common Pleas of

Mercer County entering a jury verdict in favor of Defendants-Appellees, Stanley

(“Stanley”) and Vicki (“Vicki”) Ebbing (collectively “the Ebbings”) in an amount

of $764,518 in compensation for ODNR taking a permanent flowage easement on

the Ebbings’ property. On appeal, ODNR argues that the trial court erred by: (1)

denying its request for a jury view; (2) admitting certain exhibits and testimony

proffered by the Ebbings while excluding certain evidence proffered by ODNR;

and (3) providing prejudicial jury instructions. For the reasons that follow, we

reverse the trial court’s judgment.

       {¶2} This matter concerns Grand Lake Saint Marys (“GLSM”), a man-

made lake located in Mercer and Auglaize Counties. Sometime in 1978, an

inspection revealed “that the western spillway at GLSM could not pass a probable

maximum flood1 without overtopping for 48 hours, which would result in the

eventual failure of the dam and catastrophic flooding.” State ex rel. Doner v.

Zody, 130 Ohio St.3d 446, 2011-Ohio-6117, ¶ 5. As a result, in 1990, ODNR

decided to replace GLSM’s 39.4-foot spillway with a 500-foot spillway in order to



1
 “A ‘probable maximum flood’ has been described as the flood caused by runoff from a probable
maximum precipitation.” Doner at fn. 2.

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pass the probable-maximum-flood test. Id. at ¶ 6. The construction of the new

spillway began in 1996 and was completed in 1997. Id. Both public officials and

private citizens expressed concerns to ODNR about the new spillway and the

possibility of greater flooding downstream along Beaver Creek. Id. at ¶ 8.

       {¶3} By July of 2009, relators, a group of 87 landowners, filed an action for

a writ of mandamus in the Supreme Court of Ohio to compel ODNR “to initiate

appropriation proceedings for the taking of their property.” Id. at ¶ 86. The

Ebbings were one of these landowners. The relators alleged that ODNR’s 1997

replacement spillway flooded their properties resulting in damage to their land and

crops. Id. at ¶ 17. The Court determined that the “flooding that occurred on [the

relators’] property was the direct, natural, or probable result” of the 1997 spillway.

Id. at ¶ 79. Further, the Court found that the relators “established by the requisite

clear and convincing evidence that the flooding of their property, while

intermittent, is inevitably recurring.” Id. at ¶ 82. The Court compelled ODNR to

initiate appropriation proceedings to determine the amount and extent of the taking

of the property. Id. at ¶ 86.

       {¶4} On August 9, 2012, ODNR initiated appropriation proceedings for a

flowage easement on the Ebbings’ properties.            ODNR filed a petition to

appropriate a flowage easement and to fix compensation wherein it argued that the

fair market value of the Ebbings’ property was $492,000.           ODNR listed the


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Ebbings as defendants, as well the Mercer County Auditor and Treasurer. On

August 17, 2012, the Mercer County Auditor and Treasurer filed their Answer,

stating that they had the first and best lien. On September 10, 2012, the Ebbings

filed their Answer.

       {¶5} While this matter implicates over a year’s worth of discovery, and

numerous motions and depositions, we will only discuss the evidence that is

relevant to this appeal. Accordingly, for purposes of this appeal, this matter has

four relevant stages: (1) ODNR’s request for a jury view; (2) the Ebbings’ motion

to exclude ODNR’s witnesses and photographs; (3) ODNR’s motions to exclude

the testimony, report, and photographs of the Ebbings’ expert; and (4) the jury

trial. We address each stage in sequence below.

                             Request for a Jury View

       {¶6} On June 27, 2013, ODNR filed a request for a jury view. In its

request, ODNR argued that “the jury should be provided an opportunity to observe

the [Ebbings’] property in light of the evidence [the Ebbings] intend to introduce.

Moreover, the jury should be permitted to view the property relative to its location

and distance from the spillway, Beaver Creek, and the Wabash River.” (Docket

No. 86, p. 2).

       {¶7} The Ebbings filed a memorandum in opposition to ODNR’s request

for a jury view on July 11, 2013. In its memorandum, the Ebbings argued that


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ODNR’s request for a jury view was “calculated merely to prejudice the Ebbings.”

(Docket No. 89, p. 2).             Further, the Ebbings argued that because they were

“limited to presenting evidence of the property when it is flooded through

testimony, pictures and videos, ODNR should be under the same limitation * * *

so as to prevent ODNR from showing ‘the property in an unfair light.’ ” (Id. at 3),

quoting Proctor v. Wolber, 3d Dist. Hancock No. 5-01-38, 2002-Ohio-2593, ¶ 57.

They also asserted that there would be no complex or unclear evidence at trial,

making a jury view unnecessary.

        {¶8} On August 26, 2013, the trial court denied ODNR’s request for a jury

view. In its ruling,2 the trial court stated that it was “not mandated to grant a

party’s request for a jury view prior to the commencement of a jury trial.”

(Docket No. 125). Further, the trial court stated that it believed that the jury would

have difficulty separating what they saw in a jury view and the evidence that

would be admitted at trial. (Id.).

                  Motion to Exclude ODNR’s Witnesses & Photographs

        {¶9} On August 9, 2013, the Ebbings filed a motion in limine to exclude

Bryon Frank and Bryan Smith as witnesses for ODNR and also to exclude



2
  The trial court improperly captioned its ruling as a “judgment entry.” A judgment entry is by definition a
final order subject to appeal (a final appealable order). Civ.R. 54(A); see also Black’s Law Dictionary 970
(10th Ed.2014) (defining “judgment” as a “court’s final determination of the rights and obligations of the
parties in a case * * * and any order from which an appeal lies”). Because the trial court’s entry was
merely an interlocutory order, it was not a judgment entry.

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evidence of the January 2013 flood. In their motion, the Ebbings asserted that

ODNR was attempting to re-litigate the issue of causation of the flooding on the

Ebbings’ farms through the “misleading, confusing, and incompetent testimony of

ODNR employees, Bryon Frank and Bryan Smith.” (Docket No. 96, p. 1). While

ODNR claimed that Frank would only be called to authenticate photographs of a

flood event in January of 2013, the Ebbings believed that Frank would also

attempt to testify that flooding on the Ebbings’ farms in 2013 was not caused the

spillway. The Ebbings similarly anticipated that Smith, a surveyor for ODNR,

would testify that that the 2013 flooding on the Ebbings’ farms was not caused by

the spillway.

       {¶10} That same day, the Ebbings filed a separate motion to exclude Glen

Cobb as a witness for ODNR. According to the Ebbings, ODNR wanted to use

Cobb in order to present testimony on GLSM’s practices on lake-level

management. The Ebbings argued that ODNR was simply trying to re-litigate the

issue of causation, which was settled by the Court’s decision in Doner.

       {¶11} On August 16, 2013, ODNR filed a memorandum in opposition to

the Ebbings’ motion to exclude the testimony of Cobb and other evidence of the

resumption of lake level management by ODNR. ODNR argued that the fact that

ODNR resumed its lake-level management practices at GLSM was relevant to

determine the “extent” of the take. Further, ODNR maintained that it was relevant


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as to the issue of future flooding. In a separate memorandum in opposition, filed

that same day, ODNR also argued that the trial court should deny the Ebbings’

motion to exclude Frank’s and Smith’s testimony and evidence of the January

2013 flood. In its motion, ODNR reiterated many of the same arguments made in

its memorandum in opposition to exclude Cobb’s testimony. It also stated that the

Ebbings would seek to introduce multiple photographs taken in January, April,

and May of 2013. Thus, “[f]airness dictates that ODNR should also be able to

introduce evidence from the flood event that occurred in January, 2013.” (Docket

No. 104, p. 5-6).

         {¶12} On August 26, 2013, the trial court granted the Ebbings’ motion to

exclude evidence from Frank and Smith3. The trial court stated that any evidence

regarding the flooding in January of 2013 is “irrelevant and inadmissible, unless it

is established to be relevant to the valuation of plaintiff’s permanent flowage

easement taken over Ebbings [sic] properties.” (Docket No. 127, p. 1). That same

day, the trial court also granted the Ebbings’ second motion to exclude Cobb’s

testimony as to the ODNR’s lake level management practices at GLSM. The trial

court stated that what ODNR has done “or will do in the future to minimize its use




3
  We note that in the trial court’s decision filed on August 26, 2013, it used the last name of “Miller” for
Bryan. However, both ODNR and the Ebbings use the last name of “Smith.” We will assume the trial
court made a clerical error in writing his decision.

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Case No. 10-13-24


of the permanent flowage easement is not relevant to the valuation of the

permanent flowage easement * * *.” (Docket No. 135, p. 1).

                 Motion to Exclude Vannatta’s Expert Testimony,
                             Report, & Photographs

       {¶13} On August 14, 2013, ODNR filed a motion to exclude the testimony

and report of the Ebbings’ expert witness, Richard Vannatta. Generally, ODNR

argued that Vannatta “clearly manipulates certain variables to arrive at artificially

inflated pre-appropriation values, and artificially deflates post-appropriation

values for the [Ebbings’] property.” (Docket No. 102, p. 3-4). Specifically,

ODNR raised three issues with Vannatta’s report.         First, ODNR argued that

Vannatta erroneously supposed that the Ebbings’ property experienced no

flooding prior to 1997 when calculating the pre-appropriation value, despite

admitting knowledge of such flooding in his deposition. Second, ODNR believed

that Vannatta had deflated post-appropriation values by increasing the geographic

scope of the take, without possessing the necessary expertise to make such a

determination. Lastly, ODNR argued that Vannatta used diminished crop yields in

the valuation of the damage to the residual estate. ODNR asserted that under Ohio

law, profits from businesses conducted on real property could not be utilized in

appropriation proceedings because business profits are too speculative.

       {¶14} On August 16, 2013, ODNR filed a motion to exclude reference to

photographs contained in Vannatta’s appraisal report. ODNR objected to the

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images on pages 35, 36, 37, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, and 56. In total,

ODNR had issue with 25 images in Vannatta’s report. In its motion, ODNR

argued that most of the photographs displayed in Vannatta’s appraisal report

displayed flooding on locations that were not on or near the Ebbings’ properties.

ODNR also specifically objected to the inclusion of one image which showed the

“emotionally-charged story of [a] near-drowning girl” that did not take place on or

near the Ebbings’ properties. (Docket No. 112, p. 3).

       {¶15} On August 20, 2013, the Ebbings filed a memorandum in opposition

to ODNR’s motion to exclude Vannatta’s testimony and appraisal report. The

Ebbings stated that Vannatta’s report did account for the 1% annual chance of

flooding in pre-appropriation values. Further, in regard to ODNR’s argument that

Vannatta improperly expanded the scope of the taking, the Ebbings argued he was

only “discussing what market participants would consider in determining what to

pay for the farmland in the after.” (Docket No. 114, p. 2). Lastly, the Ebbings

argued that Vannatta did not include speculative business losses into its post-

appropriation values, but only considered what a reasonable market participant

would consider in valuing the residual land.

       {¶16} On August 22, 2013, the Ebbings filed a memorandum in opposition

to ODNR’s motion to exclude certain photographs in Vannatta’s report. The

Ebbings asserted that all photographs contained in Vannatta’s report were relevant


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because they depict the negative external influences of the take. These negative

external influences will affect the post-appropriation value of the Ebbings’ two

farms. Therefore, the Ebbings asserted that all photographs located in Vannatta’s

report were relevant and not overly prejudicial to ODNR.

      {¶17} On August 26, 2013, the trial court denied ODNR’s motion to

exclude Vannatta’s expert testimony and appraisal report. In its ruling, the trial

court stated that ODNR’s motion “raises issues of credibility and weight * * * but

does not raise any issues of admissibility.” (Docket No. 123, p. 1). That same

day, the trial court also denied ODNR’s motion to exclude photographs located in

Vannatta’s appraisal report. (Docket No. 129, p. 1-2).

                                Trial Proceedings

      {¶18} The trial of this matter commenced on August 28, 2013, and ended

on August 30, 2013. Before voir dire began, both parties met in the trial judge’s

chambers to discuss preliminary issues. The trial court again denied ODNR’s

request to proffer Frank and Smith as witnesses and ruled that testimony

concerning lake level management was irrelevant. Trial Tr., p. 7. Further, in

regard to jury instructions, ODNR objected to the use of the term “frequently,

severely, and persistently” to describe the flooding. Id. at 10. ODNR believed the

phrase “inevitably recurring and intermittent” would be more accurate. Id. The

Ebbings argued that in order to establish a taking, relators must have established


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that the flooding was frequent, severe, and persistent, and were thus appropriate.

The Ebbings also noted that ODNR had not objected to the use of “frequent,

severe, and persistent” in a separate appropriations proceeding. The trial court

ultimately denied ODNR’s request to delete the words “frequent, severe, and

persistent” from the jury instructions.

       {¶19} The first witness for the Ebbings was Stanley Ebbing.           Stanley

testified that he has lived in Mercer County all of his life, is a third generation

farmer, and owns several farms in Mercer County. Specifically, Stanley testified

that he owns two farms along Beaver Creek: Ebbing West Farm and Ebbing East

Farm. These two farms are approximately a mile-and-a-half away from each

other. Ebbing West Farm is located off of Gause Road and is approximately 58

acres. Ebbing East Farm is located off of Monore Road and is 68 acres.

       {¶20} Stanley testified that he bought Ebbing East Farm in late 2008. This

was the first time that Stanley had farmed along Beaver Creek. According to

Stanley, he decided to buy Ebbing East Farm because the property “was up for

sale, and it was close to our other farms that we could get to it to farm it.” Id. at

103.   Before buying Ebbing East Farm, Stanley talked with the previous owner.

When asked whether he was aware of any flooding on Ebbing East Farm, Stanley

replied, “I thought possibly in 2003 and 2005, why with them that [sic] everybody

said was historical floods, I thought possibly it could have been flooded then.” Id.


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at 104. Further, Stanley testified that he was unaware as to whether ODNR was

responsible for any of the flooding and that “[i]f they were, why you’d have

thought they’d have fixed it, you know, if there was any problem.” Id.

      {¶21} Stanley bought Ebbing West Farm in January of 2009.            Stanley

testified that he bought this farm because his “son wanted to buy or take over

[Stanley’s] dairy farm at Coldwater. So we went into the accountant and he said if

you do a land trade, it would be simple to do. So we bought that and then my son

bought it and did -- we did a land trade.” Id. at 105. Stanley was not old enough

to retire and still wanted to farm, which is why he thought buying Ebbing East and

Ebbing West would be a good idea. Stanley testified that he was unaware of any

prior flooding of Ebbing West, except for maybe in 2003 or 2005.

      {¶22} The Ebbing West Farm was bought at a public auction for $4,100

dollars an acre for a total price of $237,800. Stanley bought Ebbing East Farm for

$7,150 dollars an acre for a total price of $486,200. Stanley testified that he was

“surprised” that Ebbing West Farm sold for such a low price and was expecting to

pay a similar price for Ebbing West Farm and Ebbing East Farm. Id. at 106.

      {¶23} Stanley was then shown Exhibit D, a picture of the spillway in 2011

during a flooding event. ODNR objected to Exhibit D and had the following

relevant exchange:

      ODNR: Your Honor, at this time we’d object to Exhibit D for the
      same reasons that we’ve talked about in pretrial. We do not think

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       that there is any authenticity to Exhibit D. We do not think it’s
       relevant for the jury to see a picture that occurred in 2011 of the
       spillway, but rather the issue should be what the Ebbing farm looks
       like for these proceedings.

       ***

       The Ebbings: Your Honor, to respond to that, the spillway and the
       500 feet of rushing water that come out of that spillway rushing
       down the Beaver Creek to the landowners’ property is showing the
       effects of the take. This is an instance in which ODNR in use of its
       flowage easement it has here is showing the effects of the take, an
       example of the effects of the take to the landowners’ property. If,
       your Honor, wants me to get into the Supreme Court decision that
       established ODNR’s flooding from the spillway the landowners’
       property and this is part of the Supreme Court case, I’m happy to go
       into that.

       Trial Court: It’s not necessary. For the limited purpose of
       identifying the incident from which we’re basing this easement and
       valuation thereof, we are allowing limited number of photographs to
       so indicate. And for that purpose, I will let that in and overrule the
       objection. You may proceed.

Id. at 108-109.

       {¶24} Stanley testified that his farms are downstream of the spillway.

Stanley also testified that, since buying both properties, his farms have

continuously flooded in 2009, 2010, 2011, and 2013. Stanley stated that the

flooding will usually last a week to two weeks, with flood-waters up to four to ten

feet deep. As a result of the flooding, Stanley testified that the farms have

experienced tile blowouts, bank erosion, soil erosion, soil compaction, and heavy

debris washing up on his farms, which can result in delayed planting. Stanley


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specified that he has had spare tires, tree limbs, cans, bottles, a chemical drum, and

a child’s playground slide, cast upon his property as a result of the flooding.

       {¶25} Stanley also identified Exhibit L, a picture of the spillway that was

taken in April of 2013. ODNR objected to Exhibit L but the trial court ultimately

overruled ODNR’s objection.

       {¶26} Stanley testified that ODNR is taking a permanent flowage easement

across 32.07 acres of his Ebbing West Farm and 18.96 acres on Ebbing East Farm.

Stanley stated that flooding also impacts the land that is outside of the flowage

easement. Stanley then had the following exchange:

       Q: Now, in your opinion, Mr. Ebbing, as the owner of these two
       farms, will the value of your farms be damaged by ODNR taking its
       permanent flowage easement?

       A: Yes, sir.

       Q: Has an appraisal been done of the damage ODNR’s permanent
       easement will cause to your farms?

       A: Yes, it has.

        ***

       Q: If you could turn to Exhibit Y in the book, sir. I’m showing you
       what’s been market as Exhibit Y. Can you identify Exhibit Y for the
       jury?

       A: Yes, sir. That’s Mr. Vannatta’s appraisal.

       Q: Have you read Mr. Vannatta’s appraisal?

       A: Yes, I have.

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       Q: Are you aware that he values your farms before ODNR’s
       permanent easement at $1,720,000?

       A: Yes, I do.

       Q: Do you agree with that?

       A: Yes, I do.

       Q: Are you aware that Mr. Vannatta values your farms after
       ODNR’s permanent easement at $574,500?

       A: Yes, I do.

       Q: Do you agree with that?

       A: Yes, I do.

Id. at 142-143.

       {¶27} On cross-examination, Stanley admitted that he has a residence on

State Route 219; he also owns 160 acres on Township Line; 38 acres on

Burkettsville Saint Henry; 78 acres on Kuhn Road; a rental property on Shore

Drive; a vacant lot on Marco Island; and at one point owned 80 acres at 3613 State

Route 219. Id. at 146-148.

       {¶28} Stanley also testified that he is part of the Doner lawsuit, which was

filed on July 17, 2009. Stanley stated that he purchased Ebbing West Farm on

January 30, 2009 about six months before he became a part of the Doner lawsuit.

Prior to purchasing Ebbing West Farm, Stanley stated that he drove by the

property. Stanley also testified that he drove by the general area in 2003 and in

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2005 to observe the massive flooding that had occurred, but could not recall if he

specifically observed the massive flooding on Ebbing West Farm. Stanley never

asked whether the property was in the 100-year floodplain, because he did not

believe that it was important. Stanley also admitted that he did little research prior

to buying Ebbing West Farm:

       Q: All right. And I think we’ve already established you drove by
       the 58-acre farm before you bought it; is that right?

       A: That’s correct.

       Q: But you didn’t get out and walk the property, did you?

       A: No, sir.

       Q: And the person who farmed that property was Mark Siefring at
       the time?

       A: Yes, sir.

       Q: All right. And did you talk to Mr. Siefring prior to buying the
       58-acre farm?

       A: No, sir, I didn’t.

       Q: Did you investigate what soil it had?

       A: No, sir, I didn’t.

       Q: Did you investigate what field tile, if any, it had and the
       condition of that tile?

       A: No, sir, I didn’t.

       Q: Did you investigate what kind of crop yields it had?


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       A: No, sir, I didn’t.

Id. at 158-159.

       {¶29} Further, Stanley could not say what kind of crop yield he had for

Ebbing West Farm in 2012. That was because the Ebbings “take all the corn from

all the farms and * * * we have a couple big bins and we dump it in and try to get

it over with as fast as we can, and we don’t keep records of what comes off what

farm.” Id. at 159. Stanley stated that he does not have a crop yield for 2011

either, because of the same reason. Stanley stated that when he went to seed

Ebbing East and West in 2013, there was no water on the ground.

       {¶30} On re-direct, Stanley stated that he was asked to join the Doner

lawsuit and did not actively seek out involvement with the lawsuit.

       {¶31} The Ebbings’ next witness was Stephen Zumberge, who owns a farm

that abuts the Ebbing East Farm. He testified that he frequently drives by Ebbing

West Farm to get to his farm off of Bunker Hill Road. Zumberge bought this farm

in 1990 and testified that he has observed flooding on the Ebbing West Farm. The

first time he observed such flooding was in August of 1998. Zumberge then stated

that he saw the new spillway in August of 1998 and witnessed the spillway

overtopping. According to Zumberge, there were crops in the ground while it was

flooding, the flooding lasted for several days, and when the water receded, some

of the crops were dead while others were damaged. Zumberge testified that


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Ebbing West Farm flooded “most years since [August 1998] at one time or

another during the year.” Id. at 182.

          {¶32} Zumberge also observed flooding on Ebbing East Farm in 1998.

Like Ebbing West Farm, he observed that after the water receded, many of the

crops were dead or damaged from the water. Again, he stated that the flooding on

Ebbing East would last a few days, and has happened “most years since ’98.” Id.

at 188.

          {¶33} In the 15 years before the new spillway was built, Zumberge testified

that there was minimal flooding along the Beaver Creek. Since the new spillway,

Zumberge has seen the first five roads west of the spillway flooded at least four

times.     Further, Zumberge testified that the Ebbing East Farm is located in

between two of those roads. Zumberge authenticated numerous photographs that

he took of the spillway and surrounding area in 2003 and 2005.4




4
  We note that on cross-examination of Zumberge, ODNR objected to the 2003 and 2005 pictures of the
spillway arguing that the Ebbings did not own either Ebbing West or East Farms during these dates, and
thus the pictures were irrelevant. ODNR stated that the reason they did not object to the exhibits while
Zumberge was on direct examination was because it was “careful not to interrupt counsel for the
landowners because of the court’s prior rulings.” Trial Tr., p. 193. Further, counsel for ODNR stated, “I
just want to make clear that [ODNR] believes that those exhibits should not come into evidence and the
jury should be given instructions to disregard them because it does not go to the fair market value * * *.”
Id. The trial court ruled that if the photographs were not connected to “any kind of valuation by any of the
expert witnesses that are going to testify and if there’s no other purpose in the exhibits being proffered as
evidence, they won’t be. But they have been properly authenticated for purposes of admission should they
be found relevant by the court.” Id. The trial court later admitted these pictures into evidence after the
Ebbings’ rested their case.

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       {¶34} On cross-examination, Zumberge admitted that he is part of the John

H. and Virginia Zumberge Trust, which is a party to the Doner lawsuit. In

addition to the Doner lawsuit, Zumberge filed a separate lawsuit against ODNR.

Zumberge’s father, John Zumberge, also filed a lawsuit against ODNR. However,

Zumberge denied having an “actual bias” against ODNR. Id. at 192.

       {¶35} Richard Vannatta, a real estate broker and appraiser, was the next

witness to testify for the Ebbings. Vannatta was offered and accepted as an expert

witness without any objection from ODNR. Vannatta was asked to render an

expert opinion on the valuation of the Ebbings’ two farms. Vannatta explained

that ODNR is taking an “occupancy right” from the Ebbings, which gives it the

right “to flood the property at any given time, 24/7, forever.” Id. at 214. Further,

he stated that the Ebbings must deliver the easement to ODNR free and clear of all

encumbrances.     Vannatta thought that this was significant in his valuations

because “they have to pay it off first of all, then if they were to want to sell it or

refinance it for whatever reason, my understanding [is] they can’t encumber that

easement.” Id. at 214-215. Vannatta also stated that this would be important to an

informed, willing buyer.

       {¶36} Vannatta testified that Ebbing East Farm contains 68 acres, is

generally level, has no woodlands or waterways on it, and is about 99 percent

tillable. He stated that Ebbing West Farm contains the confluence of the Little


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Beaver Creek and Beaver Creek and that Ebbing West Farm is also generally level

and mostly tillable.

           {¶37} Vannatta testified that the “highest and best use” for the two farms

would be farm use. According to Vannatta, he has seen farmland in Mercer

County appreciate as high as 18 percent within the last couple of years. Vannatta

also explained that when he valued the two properties, he valued them together

because of the concept of “larger parcel.”5 Id. at 219.

           {¶38} Vannatta then explained how he came to determine the amount of

compensation that is due when the government involuntarily takes a landowner’s

interest in a piece of property:

                 We first -- condemnation, unless it’s a total taking where they
           take the whole property, it’s two appraisals. You appraise the
           property, what we call in the before instance, before any of --
           whatever -- if they’re building a road, before they built the road; if
           they build a dam, before they built the dam. So I’m thinking back to
           1997 before anything happened, as if that property was undisturbed
           back in 1997, but on today’s values, not 1997, trying to assume what
           that property was like.
                 Then now today, effective today for our purposes, I assume all
           the project is done and that means assuming all damages, the area
           that they take is correct and that what we call the project has been


5
    “Larger parcel” is defined as:

           A portion of land that is not a complete parcel, but is the greater part of a bigger tract,
           entitling the owner to damages both for the parcel taken and for its severance from the
           larger tract. To grant both kinds of damages, a court generally requires the owner to
           show unity of ownership, unity of use, and contiguity of the land. But some states and
           the federal courts do not require contiguity when there is strong evidence of unity of use.

Black’s Law Dictionary 1013 (10th Ed.2014).

                                                     -20-
Case No. 10-13-24


        completed. So you have a before value and an after value
        considering all the negative effects that occurred to the property.

Id. at 220-221. The just compensation6 owed to the Ebbings is the difference

between the before value and the after value.

        {¶39} Vannatta stated that the flowage easement is approximately 40% of

the two farms and listed some of the negative effects the flowage easement has

had, and will continue to have, on the residue:

        You can have a tile blowout, and the inverse is you can have
        sinkholes because of tile blowouts. Then you have this sucking
        down in; you have sinkholes; you have saturation. There you can
        see stubbles of crop maybe. So you can lose crops or delayed
        planting seasons. You can have to replant because the crops, you
        know, got waterlogged, rotted out or something so there’s -- then
        there’s accumulation of trash that comes on [the] property. Some
        are suffering silt buildup, gravel, and then trees and different things
        as the water’s coming down because it’s jumping so far out of its
        banks that it’s dragging all kinds of stuff with it and it gets deposited
        who knows where along different properties.

Id. at 224. Vannatta testified that these are all factors that an informed, willing

buyer would consider when looking at the Ebbings’ properties after the flowage

easement was imposed. Vannatta also stated that the flowage easement created

negative effects to the areas surrounding the Ebbings’ properties such as road




6
 Vannatta explained that “just compensation” encompasses both the compensation owed to the property
owner for the taking and the compensation owed for damages to the residue. Trial Tr., p. 221.

                                               -21-
Case No. 10-13-24


closures. Vannatta included numerous pictures of the different road closures in his

report.7

        {¶40} When talking about the different external effects the flowage

easement created, Vannatta had the following relevant exchange:

        Q: Are there other considerations about not being able to get to your
        property or others not being able to get to your property a willing
        buyer would consider?

        A: Yes, sir.

        Q: Such as what?

        A: I know for example early on I was working with Mr. Post who’s
        now diseased [sic]. But he and his wife both were advanced age but
        had had a number of health issues and their son was there. And at
        times they were concerned if either one got sick that EMS couldn’t
        get there.

        ODNR: Objection, your Honor.8 May I approach?

        (The following proceedings were had at the bench by the court and
        counsel out of the hearing of the jury:)

        ODNR: Objection as to Mr. Post’s health being relevant to the facts.

        The Ebbings: I’m sorry. He was simply giving an example an
        informed, willing buyer would have.



7
  ODNR explicitly objected to these pictures at trial as irrelevant. Trial Tr., p. 225. However, the Ebbings
argued that it was relevant to show the negative external factors the flowage easement has on the property,
that these negative external factors would be considered by an informed, willing buyer, and that Vannatta
had relied on these factors in determining his valuation. The trial court agreed with the Ebbings and
overruled ODNR’s objections.
8
  ODNR does not assign this specific ruling as error in its appeal.



                                                   -22-
Case No. 10-13-24


       Trial Court: Objection is overruled.

Id. at 227-228.

       {¶41} Vannatta also talked about images located on pages 48 and 49 of his

report that depicted a young woman who almost drowned in her car. While

ODNR had objected to these pictures in a pretrial motion, it failed to renew the

objection at trial.   Vannatta explained that “overtopping, hydroplaning, fears,

danger of trying to get to your property or maybe not being able to get to it at all”

are all external factors that an informed, willing buyer would consider. Id. at 229.

       {¶42} After taking all of these external factors into consideration Vannatta

valued the Ebbings’ properties before the take at $1,720,000, the after value of the

Ebbings’ properties at only $574,540, and the difference between the before and

after being $1,145,000. Of the $1,145,000 the Ebbings were asking for, $626,000

was for the taking of the flowage easement and $519,500 was for the damage to

the residual area outside of the take area.

       {¶43} On cross-examination Vannatta admitted that he has been hired by

the Ebbings’ law firm to provide appraisals on a number of other similar cases in

Mercer County. He was paid $9,000 to prepare the report for the Ebbings. In

about 99 percent of the appraisals he has conducted he testified for the

landowners.

       {¶44} ODNR then asked Vannatta about a statement he made in his report:


                                         -23-
Case No. 10-13-24


       Q: Okay. Turning to page 2 of Defendant’s Exhibit Y you state this
       paragraph: In the before I necessarily suppose that the new spillway
       improvements are yet to be accomplished.            No trespass or
       encroachments have occurred and the whole of the study farms is yet
       to be inundated or damaged. Isn’t it true that the property flooded
       and damage occurred prior to the spillway improvements?

       A: I don’t know that -- it flooded on the 1 percent chance of annual
       flooding which is nothing near what -- I never denied it never
       flooded. We know that it’s in the hundred-year floodplain. Now
       we’re talking about the spillway. Two different things.

       Q: Mr. Vannatta, that’s not responsive to my question. In that
       paragraph you say: I supposed that the study farms is [sic] yet to be
       inundated or damaged. So in your before valuation, aren’t you
       supposing that no flooding occurred prior to ’97?

       A: No, I am not because I think I explained earlier that I looked
       back to ’97, considering what the type of flooding and things that
       were happening in my valuation. I’m looking back there to try to do
       -- that’s why it’s hypothetical back there, the general condition of
       that property and the effects that were going on back then.

       Q: Okay. So did you meet with any hydrologist or engineers to
       determine how much the property flooded prior to the redesigned
       spillway?

       A: No.

       Q: Okay. Did you review flood data relative to 1993?

       A: I saw some on the maps. They’re hard to get off the Internet.
       It’s hard to find.

Id. at 254-255.

       {¶45} Vannatta also admitted that he did not know, and he did not consider,

the purchase price the Ebbings paid for the two farms in 2008. Vannatta also


                                       -24-
Case No. 10-13-24


acknowledged that although the average price of farmland in the State of Ohio is

$5,000 per acre, he still valued the Ebbings’ property at $14,000 per acre before

the taking. After the taking, Vannatta valued the encumbered part of the land at

$1,400 per acre and the unencumbered portion at $7,000.

       {¶46} Vannatta stated that to his knowledge, the Ebbings have never lost a

planting season due to the flooding. Further, in his report, Vannatta stated that he

believed the flooding would likely creep over time beyond the defined easement.

However, Vannatta conceded that he did not meet with a hydrologist to discuss the

science behind the “creep” he described in the report.

       {¶47} After Vannatta’s testimony, the Ebbings then sought to admit

Exhibits A through GG. ODNR objected to the admission of Exhibits D, E, K, L,

M, P, Q, W, Z, AA, BB, CC, DD, and GG.             The trial court overruled all of

ODNR’s objections and admitted all of the Ebbings’ Exhibits into evidence. The

Ebbings then rested but notified the court that it would be objecting to ODNR’s

first witness, Glen Cobb. According to the Ebbings, ODNR would “attempt to try

to ask Mr. Cobb questions related to the background of the dam” and did not

believe that it was relevant testimony. The trial court, ODNR, and the Ebbings,

then had the following relevant exchange:

       ODNR: Judge, I have a suggestion. I’d like to try to be cooperative
       in this regard because I don’t want this to be prolonged. What I
       propose is that I simply ask Mr. Cobb a few questions about who he
       is, his position with the Department, whether he was the manager of

                                       -25-
Case No. 10-13-24


      the park lake, whether he saw flooding prior to 1997 without any
      other, you know, that’s an easy question, and whether he saw any
      flooding after 1997. And that would be the extent of our testimony.

      ***

      Trial Court: This court will allow Mr. Cobb’s testimony about who
      he is, his position with the Ohio Department of Natural Resources
      back prior to the construction of the new spillway, his observations
      of what flooding he may have observed to this property and others
      downstream, and whether he can testify as to the subsequent
      flooding afterwards because those go to the issue of the value and
      the fact that before the take there was flooding, which is consistent
      with some of the testimony that’s already been made. But beyond
      that, I don’t know that Mr. Cobb has anything that the court would
      deem relevant and certainly not about the necessity of the take.

      ***

      The Ebbings: Your Honor, I understand you’ve made a ruling. If I
      could ask for some reconsideration only in light of something I’m
      going to provide that I specifically asked Mr. Cobb in his deposition
      just a few weeks ago.
            “At this time here today, do you have any specific factual
      information about the Ebbing properties?” And the answer was no.
      So I don’t see how his testimony is relevant to the Ebbing properties
      involved in this case here today.

       ***

      Trial Court: Then if he can’t testify that he observed flooding of
      these two properties prior to 1997 and subsequent to 1997, then his
      testimony is not going to be relevant.

      ODNR: Judge.

      Trial Court: If you want to put him on right now, I’ll hear what he
      has to say. And then I’ll determine whether you can put him on in
      front of the jury.


                                      -26-
Case No. 10-13-24


Id. at 302-304.

        {¶48} ODNR then proffered the testimony of Cobb outside of the hearing

of the jury. While Cobb stated that he did not remember the Ebbings’ two farms

specifically before 1997, he was familiar with Mercer County in general and

GLSM prior to 1997. He stated that he saw the Ebbings’ two farms while he was

riding with counsel out in the area, but does not specifically remember those

properties, but only remembers the general farmland. He was able to identify two

of ODNR’s pictures and explained Brian Miller, a park manager at GLSM, took

them.

        {¶49} This was the extent of Cobb’s testimony. The Ebbings once again

objected to Cobb’s testimony and the court once again agreed with the Ebbings

and denied ODNR’s request to allow Cobb’s testimony in front of the jury.

ODNR voiced its disapproval with the trial court’s decision:

        ODNR: Judge, the only thing I want to make sure the record’s [sic]
        clear [on] is, I recall Mr. Ebbing said he recognized the first two
        pictures, but that he couldn’t identify the others. So if the other side
        would stipulate these pictures are here, that solves the first problem I
        have in getting these pictures admitted. I won’t ask Mr. Cobb about
        any of those pictures. The second problem I have is that the jury has
        not yet heard from any employee of the Department of Natural
        Resources, and the only witness I will be left with then is our
        appraiser. And in my view, that is not fair to the State and the
        Department of Natural Resources because the jury wants to hear
        who is your client representative and why is he here; what’s his
        name; what’s his background; what level is he at. I have alluded to
        it in the opening, and if I’m prevented from at least introducing Mr.


                                         -27-
Case No. 10-13-24


        Cobb and his position and his authority, then I think the jury can
        draw an inference that’s prejudicial to my client.

        Trial Court: Objection overruled.

Id. at 310-311.

        {¶50} ODNR then called Bruce Dunzweiler, its first and only witness.

Dunzweiler testified that he is a real estate appraiser. Dunzweiler was offered and

accepted as an expert witness, without any objection from the Ebbings.

        {¶51} Dunzweiler testified that his report provides a “before-and-after

analysis” in that he formed an opinion of the value of the property when it is not

encumbered by a flowage easement; and also values the property after it is

encumbered by a flowage easement. Id. at 320. Dunzweiler, unlike Vannatta,

valued the two farms separately. For Ebbing East Farm, Dunzweiler valued the

before value $639,200 and Ebbing West Farm at $498,800, for a total value of

$1,138,000.9        After the flowage easement, Dunzweiler stated that it was his

opinion that Ebbing East Farm was valued at $340,000 and Ebbing West Farm

was valued at $261,000, for a total value of $601,000.10                       Thus, Dunzweiler

subtracted the difference of values before and after the flowage easement and




9
  Dunzweiler valued Ebbing East Farm at $9,400 per acre and Ebbing West Farm at $8,600 per acre before
the flowage easement.
10
   Dunzweiler valued Ebbing East Farm at $5,000 per acre and Ebbing West Farm at $4,500 per acre after
the flowage easement.

                                                -28-
Case No. 10-13-24


came to the conclusion that ODNR owed the Ebbings $237,800 for Ebbing West

Farm and $299,200 for Ebbing East Farm – a total of $537,000 in damages.

       {¶52} Dunzweiler stated that he had reviewed Vannatta’s report and the

reason he believed they came to such different conclusions was that Vannatta

relied on different assumptions. Specifically, Dunzweiler testified:

             The other appraiser assumed there was no water, no flooding
       that happened in the before. Well, the properties, both of them, are
       in the floodplain and documentation through FEMA flood maps that
       they have been in the floodplain prior to the spillway reconstruction
       and for some time before that.
             With it, he also used sales with improvements such as houses,
       and an adjustment was made to acknowledge the house and/or set of
       building as they applied, but with it, it’s taking opinion. * * *
             * * * And with it, appreciation was factored; and I think it was
       13 percent. And it was factored into infinity or for some time to
       come. And right now we’re experiencing some fluctuation in the
       commodity pricing. So what was a $7 corn last year is now $5 corn;
       the same thing with the soybeans. I think it was 15 last year, and it’s
       about 12 or 13 now. So with that, the commodity prices can
       influence the price of land for agricultural purposes.

Id. at 321-322.

       {¶53} On cross-examination Dunzweiler testified that he does not know

how often the Ebbings’ properties have flooded since 1997. Dunzweiler stated

that he tried to ask the Ebbings about the flooding but was unsuccessful because

the Ebbings’ attorneys told them not to speak with Dunzweiler.

       {¶54} After Dunzweiler’s testimony, ODNR sought to admit Exhibits 1, 2,

4, 7, 11, 15-19, and 21-28. The Ebbings stipulated to the admission of Exhibits 1


                                        -29-
Case No. 10-13-24


and 2 and did not object to the admission of Exhibit 7. The Ebbings objected to

one out of five photographs contained in Exhibit 11, however the trial court

overruled their objection and admitted Exhibit 11, in its entirety, into evidence.

The Ebbings also objected to Exhibits 4, 15, 16, 17, 18, 19, 21, 22, 23, 24, 25, 26,

27, and 28. The trial court sustained all of these objections. ODNR also sought to

offer two affidavits into evidence: one from Cobb and the other from Smith;

however, the trial court denied ODNR’s request. ODNR then rested its case.

       {¶55} Both ODNR and the Ebbings offered their closing statements and the

trial court charged the jury before deliberations. While charging the jury, the trial

court stated that

       [t]his case is an appropriation action brought by the State of Ohio
       Department of Natural Resources to acquire a permanent and
       perpetual flowage easement across 51.03 acres of Ebbings’ 126-acre
       farms located in Jefferson Township, Mercer County, Ohio, to grant
       the State the right to intermittently but frequently, severely, and
       persistently flood those areas. * * * In this case, the permanent and
       perpetual easement which has been taken is for the increased
       flooding that occurred and will continue to occur as a natural result
       of the reconstruction of the western spillway of Grand Lake in 1997
       and lack of lake-level management by the Ohio Department of
       Natural Resources which flooding is intermittent but frequent,
       severe, and persistent.

Id. at 456.

       {¶56} On August 30, 2013, the jury returned its verdict and awarded the

Ebbings $764,518 in damages.          $428,652 was compensation for ODNR’s



                                        -30-
Case No. 10-13-24


permanent and perpetual flowage easement, while $335,866 constituted damages

to the residual farmland.

       {¶57} ODNR filed this timely appeal, presenting the following assignments

of error for our review.

                            Assignment of Error No. I

       THE TRIAL COURT ERRED BY REFUSING TO GRANT
       ODNR’S REQUEST FOR A JURY VIEW.

                            Assignment of Error No. II

       THE   TRIAL  COURT     ERRED   BY   ADMITTING
       LANDOWNERS’ IRRELEVANT, PREJUDICIAL EXHIBITS
       AND TESTIMONY, BUT AT THE SAME TIME EXCLUDING
       ODNR’S RELEVANT, PROBATIVE EVIDENCE.

                            Assignment of Error No. III

       THE TRIAL COURT ERRED BY PROVIDING THE JURY
       WITH PREJUDICIAL JURY INSTRUCTIONS.

                             Assignment of Error No. I

       {¶58} In its first assignment of error, ODNR argues that the trial court erred

in denying its motion for a jury view because no unusual circumstances were

present. We agree.

                                Standard of Review

       {¶59} R.C. 163.12(A) provides that “[a] view of the premises to be

appropriated or of premises appropriated shall be ordered by the court when

requested by a party to the proceedings.” Despite the mandatory wording of the

                                        -31-
Case No. 10-13-24


statute and the expressed intent of the General Assembly, the Supreme Court of

Ohio has stated that “in unusual circumstances the court could exercise its

discretion to deny a view.” City of Akron v. Alexander, 5 Ohio St.2d 75, 78 (1966)

(interpreting nearly identical language of former R.C. 719.10). Therefore, we

review a denial of a jury view for an abuse of discretion. Proctor v. Wolber, 3d

Dist. Hancock No. 5-01-38, 2002-Ohio-2593, ¶ 57. A trial court will be found to

have abused its discretion when its decision is contrary to law, unreasonable, not

supported by the evidence, or grossly unsound. State v. Boles, 187 Ohio App.3d

345, 2010-Ohio-278, ¶ 16-18 (2d Dist.). When applying the abuse of discretion

standard, a reviewing court may not simply substitute its judgment for that of the

trial court. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).

      {¶60} ODNR argues that the trial court erred in its denial of the request for

a jury view because the trial court interpreted R.C. 163.12 as discretionary, not

mandatory, and also because it did not articulate any unusual circumstances as the

basis for its denial of the jury view. Conversely, the Ebbings argue that ODNR

waived this issue on appeal by not preserving its request for a jury view at trial.

Specifically, the Ebbings urge this court to view a request for a jury view as a

motion in limine, and the failure of ODNR to object to the denial of its request at

trial allows this court to reverse the trial court’s decision only if plain error




                                       -32-
Case No. 10-13-24


exists.11 In the alternative, the Ebbings argue that the trial court properly exercised

its discretion in denying the jury view because the view would have been more

prejudicial than probative. Further, the Ebbings argue that even if the trial court

did err, any error is harmless.

        {¶61} We note that in drafting R.C. 163.12, the General Assembly chose

the word “shall” to describe the trial court’s duty when faced with a party’s

request for a jury view. “ ‘Shall’ is defined as ‘will have to’ and is ‘used to

express a command or exhortation’ and ‘to express what is mandatory.’ ” State

v. Swihart, 3d Dist. Union No. 14-12-25, 2013-Ohio-4645, ¶ 61, quoting

Webster’s Third New International Dictionary 2085 (2002).                                   Courts have

traditionally applied the same connotation to “shall” when interpreting statutes and



11
    We find the Ebbings’ argument that ODNR waived this issue on appeal by failing to object to the denial
of the jury view at trial to be meritless. The Ebbings want us to interpret a request for a jury view as a
motion in limine, however, they cite no case law to support this proposition. Further, a “motion in limine”
is defined as

        A pretrial request that certain inadmissible evidence not be referred to or offered at trial.
        Typically, a party makes this motion when it believes that mere mention of the evidence
        during trial would be highly prejudicial and could not be remedied by an instruction to
        disregard. If, after the motion is granted, the opposing party mentions or attempts to offer
        the evidence in the jury’s presence, a mistrial may be ordered. A ruling on a motion in
        limine does not always preserve evidentiary error for appellate purposes. To raise such
        an error on appeal, a party may be required to formally object when the evidence is
        actually admitted or excluded at trial.

(Emphasis added.) Black’s Law Dictionary 1171 (10th Ed.2014). It is well-established that a jury view is
not evidence. See Alexander, 5 Ohio St.2d at 77; Proctor, 2002-Ohio-2593, ¶ 56; Ohio Jury Instructions,
CV 309.15. Accordingly, we do not believe that a request for a jury view should be characterized as a
motion in limine.




                                                   -33-
Case No. 10-13-24


the duties they imposed. E.g., Anderson v. Yungkau, 329 U.S. 482, 485 (1947)

(“The word ‘shall’ is ordinarily ‘[t]he language of command’.”), quoting Escoe v.

Zerbst, 295 U.S. 490, 493. See also State ex rel. Cincinnati Enquirer v. Lyons,

140 Ohio St.3d 7, 2014-Ohio-2354, ¶ 28 (“We have repeatedly recognized that use

of the term ‘shall’ in a statute or rule connotes a mandatory obligation unless other

language evidences a clear and unequivocal intent to the contrary.”).

       {¶62} Looking at other Chapters of the Revised Code only strengthens our

belief that the General Assembly intended a jury view to be mandatory in

appropriation cases. Compare R.C. 2945.16 (allowing a jury view in a criminal

case “[w]hen it is proper for the jurors to have a view of the place at which a

material fact occurred”) and R.C. 2315.02 (allowing a jury view in a civil case

“[i]f the court is of the opinion that it is proper for the jurors to have a view of

property”) with R.C. 163.12. The General Assembly expressly allowed a trial

court to use its discretion to deny a jury view in civil and criminal cases, yet this

same language is missing from R.C. 163.12.

       {¶63} However, in Alexander, the Court looked to Section 19, Article I of

the Ohio Constitution, as well as “the well-established rule that the view of the

premises is not evidence” to determine that the intent of the General Assembly in

enacting the jury view statute was to “provide for just compensation to a property

owner and to provide the jury with assistance when the evidence is complex or


                                        -34-
Case No. 10-13-24


unclear.” Alexander at 77-78. Therefore, when a jury view “would cause an

injustice to the property owner and deprive him of compensation to which he is

entitled, and where the evidence of valuation is not alleged to be complex or

unclear, the legislative purpose would not be served in granting a view of the

premises.” (Emphasis added.) Id. at 78. As a result, the Court has delineated one

narrow exception to when the trial court may deny a request for a jury view: when

the view would cause an injustice to the property owner, deprive him of

compensation, and where the evidence of valuation is not complex or unclear.12

        {¶64} When denying ODNR’s request for a jury view, the trial court

arbitrarily stated that it would be “difficult for the jury to separate what the jurors

would see during a jury view and what is depicted in the photographs admitted

into evidence in rendering their verdict.” (Docket No. 125, p. 1). However, this is

not an unusual circumstance which would excuse the trial court from departing

from the mandatory language of R.C. 163.12. Indeed, in every eminent domain

case where a jury view is requested, the jury is faced with the task of separating

the jury view from the evidence admitted at trial. Using the trial court’s logic, it

would never have to grant a jury view because of the possibility that the jury view

might confuse the jurors during deliberations. Accord Proctor, 2002-Ohio-2593, ¶



12
  It would appear that the same logic would apply when a jury view would cause an injustice to the State
and its taxpayers, and where the evidence of valuation is not complex or unclear.

                                                 -35-
Case No. 10-13-24


61. Therefore, we find that the trial court erred in denying ODNR’s request for a

jury view because it did not make the proper finding as required by Alexander.

      {¶65} We now must determine whether the error was harmless.                The

Ebbings argue that the error was harmless because the jury view is not evidence,

could not have been considered by the jury, and therefore, could not have changed

the outcome of the trial. However, if we were to accept the Ebbings’ argument,

then the trial court could always deny a jury view and it would always be harmless

error, because jury views are never considered as evidence. This seems illogical,

especially when the General Assembly chose the word “shall” to describe the trial

court’s duty when faced with a party’s request for a jury view.

      {¶66} The Ebbings also argue that because ODNR was able to offer a few

photographs of the Ebbings’ properties dry and with crops growing, it was not

prejudiced. We disagree. We find that this case exemplifies an appropriation case

where the evidence of valuation is complex and unclear, mainly because of the

evidence the Ebbings offered.      The Ebbings were able to admit numerous

photographs of the spillway, and properties other than the Ebbings’ two farms

under the guise that they portrayed “negative external factors.” The jury should

have had the ability to view the properties in order to give context to all of the

evidence the Ebbings produced at trial and determine what impact, if any, these

negative external factors had on the Ebbings’ two farms.


                                       -36-
Case No. 10-13-24


       {¶67} Accordingly, we sustain ODNR’s first assignment of error.

                           Assignment of Error No. II

       {¶68} In its second assignment of error, ODNR contends that the trial court

erred in admitting the Ebbings’ irrelevant and prejudicial exhibits and testimony,

while excluding its own relevant and probative evidence. We agree in part and

disagree in part.

       {¶69} Trial courts have the broad discretion in determining whether to

admit or exclude evidence. Deskins v. Cunningham, 3d Dist. Union No. 14-05-29,

2006-Ohio-2003, ¶ 53, citing Huffman v. Hair Surgeon, Inc., 19 Ohio St.3d 83

(1985). “Accordingly, a trial court’s ruling on the admissibility of evidence will

not be disturbed on appeal absent an abuse of discretion.” Moore v. Moore, 182

Ohio App.3d 708, 2009-Ohio-2434, ¶ 15 (3d Dist.).

       {¶70} On appeal, ODNR argues that the trial court made three specific

evidentiary errors: (1) admitting images of the reconstructed spillway overtopping

and of general flooding in the GLSM area; (2) admitting Vannatta’s report, which

did not conform to the standard for calculating compensation under Ohio law and

contained inflammatory photographs; and (3) excluding ODNR’s witnesses and

photographs. We will discuss each of ODNR’s arguments in turn.




                                       -37-
Case No. 10-13-24


                      Photographs of Spillway & Surrounding Areas

        {¶71} ODNR’s first contention is that the trial court erred in allowing

pictures of the reconstructed spillway overtopping and general flooding in areas

surrounding the Ebbings’ properties. While ODNR argues that these pictures are

irrelevant, the Ebbings argue they are significant in valuing the Ebbings’

properties. Specifically, the Ebbings argue these pictures depict “negative external

factors” that an informed and willing buyer would consider before purchasing the

Ebbings’ properties.13

        {¶72} In the case sub judice, the Ebbings are not only entitled to

compensation for the property taken, but are also entitled to damages for the

residual land that remains after the taking. See City of Steubenville v. Schmidt, 7th

Dist. Jefferson No. 01 JE 13, 2002-Ohio-6894, ¶ 16; Hurst v. Starr, 79 Ohio

App.3d 757, 762 (10th Dist.1992). Damage to the residue is measured by the

difference between the pre-appropriation and post-appropriation fair market value

of the residue. Schmidt at ¶ 16; In re Appropriation for Hwy. Purposes of Lands of

Williams, 15 Ohio App.2d 139, 143-144 (3d Dist.1968). In determining the fair

market value of the remaining property before and after the taking, every factor



13
  We find it interesting that the crux of the Ebbings’ argument revolves on what an “informed and willing
buyer” would consider before buying their properties, when they allege that they were not informed buyers.
Stanley admitted to owning more than eight properties in the area and witnessing massive flooding in the
GLSM area in 2003 and 2005, yet unbelievably did not know or did not think to ask if Ebbing East and
Ebbing West were affected by the reconstructed spillway.

                                                  -38-
Case No. 10-13-24


that a prudent businessperson would consider before forming a judgment in

making a purchase is relevant. Lands of Williams at 144. “Accordingly, any

element of damage that makes ‘the residue less valuable in its separate state after

its taking than it was as a part of the whole before the taking’ may properly be

considered.” City of Hilliard v. First Industrial, L.P., 158 Ohio App.3d 792,

2004-Ohio-5836, ¶ 5 (10th Dist.), quoting Knepper & Frye, Ohio Eminent Domain

Practice, 270-271, Section 9.06 (1977). Such factors include the loss of ingress

and egress and “any other losses reasonably attributable to the taking.” Id.

       {¶73} Vannatta testified that he believed “overtopping, hydroplaning, * * *

danger of trying to get to your property or maybe not being able to get to it at all”

are external factors that a prudent businessperson would consider before

purchasing the Ebbings’ properties. We agree that interference with entering and

leaving one’s property is a factor that a prudent businessperson would consider

before purchasing property. Similarly, road closures, within a close proximity of

the properties, would be equally as relevant when valuing the residue. However,

Vannatta testified that the highest and best use of the Ebbings’ property was farm

use, and thus, a prudent businessperson would be less concerned with occasional

road closures to undeveloped farmland than he would be to residential properties.

If flooded, the farmland cannot be worked and the lack of access to such land is of

minimal importance.


                                        -39-
Case No. 10-13-24


      {¶74} ODNR also takes issue with the Ebbings’ Exhibits D and L which

depict the reconstructed spillway, three-and-one-half to five miles away from the

Ebbings’ properties. Again, the Ebbings argue that these pictures are relevant

because they are also factors that a prudent businessperson would consider before

purchasing property. We disagree. The relevance of these photographs becomes

more attenuated the farther away they are from the Ebbings’ properties. The more

photographs depicting the overtopping spillway, the more they become cumulative

and have the potential to prejudice ODNR.

      {¶75} In this case, the Ebbings admitted numerous photographs depicting

the overtopping spillway and general flooding: Exhibits D, E, L, M-1, M-2, Z,

and BB. Further, pages 35, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, and 56 of

Vannatta’s report contain similar images. In fact, some of the exact photographs

that were offered as Exhibits are then also included in Vannatta’s report. For

example, Exhibit D is the same image as page 35 of Vannatta’s report. Exhibits E

and L are repeated on pages 46 and 47 of Vannatta’s report. Lastly, Exhibits Z

and BB are identical to pages 52 and 54 of Vannatta’s report.

      {¶76} While perhaps one image of the overtopping spillway would be

relevant, the fact that the trial court allowed so many cumulative, duplicative, and

unnecessary photographs was error. Moreover, pictures of general flooding on

properties other than the Ebbings’ properties are irrelevant in determining the


                                       -40-
Case No. 10-13-24


value of the Ebbings’ properties. It also has the potential to confuse the jury,

especially in light of the fact that the trial court arbitrarily refused the jury view of

the property, which would have placed these photographs in context. This error is

also exacerbated by the fact that the trial court refused ODNR the ability to present

its own evidence concerning issues raised by the Ebbings at trial and when it

refused to allow Cobb to testify as to his knowledge about the general GLSM area,

which will be discussed in more detail later.

                                  Vannatta’s Report

       {¶77} While ODNR filed a motion in limine to exclude certain portions of

Vannatta’s report and testimony, it did not object at trial when Vannatta testified

or when his report was offered into evidence.           Accordingly, we will review

whether the trial court committed plain error in allowing Vannatta’s report and

testimony into evidence. “ ‘In appeals of civil cases, the plain error doctrine is not

favored and may be applied only in the extremely rare case involving exceptional

circumstances where error, to which no objection was made at the trial court,

seriously affects the basic fairness, integrity, or public reputation of the judicial

process * * *.’ ” Am. Builders & Contrs. Supply Co., Inc. v. Frank’s Roofing Inc.,

3d Dist. Marion No. 9-11-41, 2012-Ohio-4661, ¶ 17, quoting Goldfuss v.

Davidson, 79 Ohio St.3d 116 (1997), syllabus.




                                          -41-
Case No. 10-13-24


         {¶78} ODNR argues that Vannatta’s report was erroneously admitted into

evidence because it did not take into account that flooding had occurred on the

property before the take,14 it increased the geographic scope of the take, and it

contained inflammatory and irrelevant photographs.15

         {¶79} As to its first argument, ODNR stated that Vannatta inflated the pre-

appropriation values for the Ebbings’ farms by assuming that no flooding occurred

prior to 1997, and that all post-1997 flooding was attributable to ODNR. ODNR

points to the second page of Vannatta’s report which states, “In the before I

necessarily suppose that the new spillway improvements are yet to be

accomplished. No trespass or encroachments have occurred and the whole of the

study farms is yet to be inundated or damaged.” (Exhibit Y, p. 2). However,

ODNR ignores page 16 of Vannatta’s report which acknowledges that the

Ebbings’ properties are within the 100-year floodplain. Specifically, Vannatta

states “a portion of Farm #1 and a portion of Farm #2 are located in a 100-year

floodplain identified as ‘Zone AE,’ which appears to mirror that of the take areas

of each farm.” (Id. at 16). Vannatta explained on direct examination why he




14
   This issue is much confused by the fact that the trial court set the date of the take as the date of trial and
there was considerable testimony that flooding had occurred frequently since 1998. However, the parties
each offered evidence “before the take” as of 1997.
15
   We note that in its motion in limine, ODNR also argued that Vannatta’s report should be excluded
because he used diminished crop yields in the valuation of the damage to the residue estate. However,
because ODNR abandoned this argument on appeal, we will not address the merits of this argument.

                                                     -42-
Case No. 10-13-24


believed that any flooding that occurred prior to the new spillway was

insignificant in his valuations:

       Q: Is some of the Ebbings’ property in the hundred-year floodplain?

       A: Yes.

       Q: Was that significant in the purchase price of comparable sale
       number three?

       A: No, I don’t believe so.

       Q: In your 43 years of experience, Mr. Vannatta, is farmland
       typically negatively affected by being within the 100-year floodplain
       in terms of its value?

       A: It depends on the property, but generally no. Normally, if it’s
       within that 1 percent chance, my experience is a lot of that is what
       we term bottomland. It really has pretty good soils, and they can be
       as productive as soils that aren’t in a flood zone.

Trial Tr., p. 237-238.

       {¶80} Thus, it appears that while Vannatta acknowledged that the Ebbings’

properties are within the 100-year floodplain, it was insignificant when computing

his valuations. ODNR did its best to attack Vannatta’s credibility and the fact that

he did not factor in the 100-year floodplain into his valuations on cross-

examination.

       Q: So in your before valuation, aren’t you supposing that no
       flooding occurred prior to ’97?

       A: No, I’m not because I think I explained earlier that I looked back
       to ’97, considering what the type of flooding and things that were
       happening in my valuation. I’m looking back there to try to do --

                                       -43-
Case No. 10-13-24


         that’s why it’s hypothetical back there, the general condition of that
         property and the effects that were going on back then.

Id. at 255. Further, Vannatta admitted on cross-examination that he did not meet

with a hydrologist or engineer to determine how much the Ebbings’ properties

flooded prior to the redesigned spillway. He also admitted that he was not sure if

he reviewed any of the flood data relative to 1993, 1994, 1995, 1996, or 1997.

         {¶81} Therefore, it appears Vannatta did not ignore the fact that the

Ebbings’ properties were located within the 100-year floodplain, but instead, he

chose to give it nominal consideration when determining his valuations.16 We

agree with the trial court that this issue goes towards the weight and credibility of

Vannatta’s report, not its admissibility.




16
   We find it odd that Vannatta did not give any consideration to the purchase price the Ebbings paid for
their two farms in his valuation of the two properties. Indeed, at trial Vannatta testified, “I’m not sure that I
even bothered to consider what [the purchase price] was. Anytime that sales over three years pass or a
transaction, it’s not relevant to the appraisal that I’m doing so I didn’t even consider it so I don’t know.”
Trial Tr., p. 258. However, the Supreme Court of Ohio has stated that “when the property has been subject
of a recent arm’s-length sale between a willing seller and a willing buyer, the sale price of the property
shall be ‘the true value for taxation purposes.’ ” Berea City Sch. Dist. Bd. of Educ. v. Cuyahoga Cty. Bd. of
Revision, 106 Ohio St.3d 269, 2005-Ohio-4979, ¶ 13. While Vannatta claimed that the purchase price was
irrelevant to his valuation because it happened over three years ago, he ignores the fact that the Ebbings had
purchased the two farms only six months before joining the Doner lawsuit where the Court determined that
a taking had occurred. Thus, the purchase was very recent and relevant to the valuation of the Ebbings’
properties. Even if the purchase price is considered too remote in time, the Supreme Court of Ohio has
stated that “[e]ven if the other sales were ‘too remote,’ they were some indication of true value and should
have been taken into account by the [Board of Tax Appeals] in its deliberations.” Dublin-Sawmill
Properties v. Franklin Cty. Bd. of Revision, 67 Ohio St.3d 575, 576 (1993). While we understand these
cases deal with valuation of properties for tax purposes, we see no reason why the same principles would
not be relevant in determining the valuation of property for eminent domain purposes. We would also
think that when a farm is purchased approximately ten years after the flooding started it would be
reasonable to consider how that prior flooding affected the purchase price and whether the seller in that
instance is the one who suffered the loss. However, because this issue was not raised on appeal, we decline
to address it any further.

                                                     -44-
Case No. 10-13-24


         {¶82} ODNR also argues that Vannatta’s report “manipulated the post-

appropriation value of the Property by arbitrarily increasing the geographic scope

of the take.” (Appellant’s Br., p. 12). Specifically, Vannatta ignored the fact that

the Ebbings stipulated with ODNR on the metes and bounds description of the

flowage easement, and stated that flooding will “exceed the take area limits” and

that ODNR’s take is a “blanket easement of the entirety of the whole of the study

Farms * * *.” (Exhibit Y, p. 45).

         {¶83} ODNR outlined the metes and bound description in its petition to

appropriate flowage easement and fix compensation. (Docket No. 3, Exhibits A,

B). The Ebbings did not dispute the metes and bound description of the flowage

easement. (Docket No. 89, p. 5). In fact, in their “Notice of Submission of

Proposed Order on Extent of Take” the Ebbings conceded that the jury’s role in

this matter was to “only decide the amount of compensation and damages due to

the Ebbings for the taking described in the flowage easements * * *. To ensure

that the jury’s task remains limited to the issue of compensation * * * the Ebbings

hereby submit a proposed order for the Court as to the extent of the take.”

(Emphasis added.) (Docket No. 92, p. 2).17



17
   We recognize that although the “Notice of Submission of Proposed Order on Extent of Take” was not
labeled as a “stipulation” its purpose was to serve as a stipulation. See State v. Davidson, 17 Ohio St.3d
132, 135 (1985) (“The determination of whether a motion is a ‘motion to suppress’ or a ‘motion in limine’
does not depend on what it is labeled. It depends on the type of relief it seeks to obtain.”); see also Lingo v.
State, 138 Ohio St.3d 427, 2014-Ohio-1052, ¶ 38 (“Regardless of how an action is labeled, the substance of

                                                     -45-
Case No. 10-13-24


         {¶84} The issue of the “extent of the take” was a matter that had to be

decided before the trial. R.C. 163.14; see also Wray v. Fitch, 95 Ohio App.3d

249, 253 (9th Dist.1994) (“In appropriation cases, it is the court’s duty to define

the extent of ‘the taking’ and the jury’s duty to determine the amount of damages

as a result of ‘the taking.’ ”). Since the Ebbings stipulated to the extent of the take

outlined in ODNR’s petition for appropriation, it cannot contradict this stipulation

by having its expert testify at trial that ODNR’s take will encompass more than

what they had previously stipulated. Once a party has agreed to a stipulation, it

may not retract or withdraw from it without the consent of the other party or by

leave of court on good cause. DeStephen ex rel. DeStephen v. Allstate Ins. Co.,

10th Dist. Franklin No. 01AP-1071, 2002-Ohio-2091, ¶ 17.

         {¶85} Thus, any evidence that altered the “extent of the take” was

irrelevant, confusing to the jury, and highly prejudicial. The trial court erred when

it failed to strike this portion of Vannatta’s report and exclude this portion of

Vannatta’s testimony at trial.


the party’s arguments and the type of relief requested determine the nature of the action.”). A stipulation is
a “voluntary agreement between opposing counsel concerning the disposition of some relevant point so as
to obviate the need for proof or to narrow the range of litigable issues.” Horner v. Whitta, 3d Dist. Seneca
No. 13-93-33, 1994 WL 114881, *1, quoting 89 Ohio Jurisprudence 3d (1989), Trial, Section 69. This is
exactly what the Notice of Submission did. It was a voluntary agreement between ODNR and the Ebbings
which narrowed the range of litigable issue. The Ebbings did not feel the need to litigate the issue of the
“extent of the take” to the trial court, and instead, chose to stipulate to the metes and bounds description
found in ODNR’s petition for appropriation. We also note that Notice of Submission was never signed or
filed by the trial court judge. However, the trial court made an oral ruling, granting the Ebbings’ request to
have the metes and bounds description represent the extent of the take. See Aug. 16, 2013 Pre-Trial
Conference Tr., p. 16-21.

                                                    -46-
Case No. 10-13-24


        {¶86} Lastly, ODNR argues that pages 48 and 49 of Vannatta’s report

should have been excluded because they were irrelevant and highly prejudicial.

Specifically, through a motion in limine, ODNR sought to exclude certain images

found in Vannatta’s expert report which depicted a newspaper article concerning

the near-drowning of a teenage girl after she attempted to cross a flooded road in

her car.18      At a pretrial conference, ODNR stated that these images were

“prejudicial and inflammatory.” Final Pretrial Conference Tr., p. 31. The Ebbings

argued that this news article was relevant because it demonstrated the “negative

external effects” of the flowage easement and thus affects the value of the residual

farmland to potential buyers. During the final pretrial conference, ODNR argued:

        ODNR: Thank you, Judge. Let me just -- and, again, not to belabor
        the point. There is one picture of an article that shows a 19-year-old
        woman who allegedly nearly drowned when she maybe foolishly
        tried to take her vehicle and cross a road that had been flooded out.
        And with regard to that picture, I’m simply asking the court. Does
        the court agree with [ODNR] that that reference is so unrelated to
        compensation of land on the 58-acre and 68-acre parcel that
        reference should at least be excluded and that the rest of it comes in
        and given weight?


18
   These images are contained on pages 48 and 49 of Vannatta’s report. On page 48 there are two images:
one showing a “road closed” sign with a flooded road behind it; the second image similarly shows a
flooded road. Below both images is a caption that reads: “The site above is located adjacent to the north
side of the Wabash River along State Route 49, which is near the location where a 19-year-old girl almost
died Monday February 28, 2011, due to swift high water from the Wabash overtopping State Route 49.”
There are two images on page 49: the first is an image of a newspaper article with the headings
“Communities flooded with woes” and “Divers pull woman from car.” Under this second heading you can
read part of the newspaper article that says “A 19-year-old Fort Recovery woman remains in critical
condition today after being pulled from a nearly submerged car Monday night in the area of state [sic]
Route 49 and 29, north of St. Anthony.” The second image is of a car that washed off the roadway, and is
partially submerged by the flooded waters.

                                                 -47-
Case No. 10-13-24



       ***

       Trial Court: Well, subject to the testimony of Mr. Vannatta, but as
       evidenced at the top of the page from this report, page 49, of the
       picture contained in Mr. Vannatta’s report, if in fact his testimony is
       this would affect what a willing buyer would pay for the property,
       then the court doesn’t believe that the prejudicial effect outweighs
       the probative value, and the law requires that the prejudicial value be
       unfair. And I don’t believe this is an unfair prejudice position.

Id. at 34, 36-37.

       {¶87} Despite ODNR’s motion in limine and its adamant objection to the

news article at the final pretrial conference, ODNR failed to make this specific

objection again at trial, thus waiving all but plain error.

       {¶88} Under Evid.R. 402, “All relevant evidence is admissible, except as

otherwise provided by the Constitution of the United States, by the Constitution of

the State of Ohio, by statute * * *, by these rules, or by other rules prescribed by

the Supreme Court of Ohio. Evidence which is not relevant is not admissible.”

Relevant evidence is defined as “evidence having any tendency to make the

existence of any fact that is of consequence to the determination of the action more

probable or less probable than it would be without the evidence.” Evid.R. 401. In

conjunction with these rules is Evid.R. 403(A), which states, “Although relevant,

evidence is not admissible if its probative value is substantially outweighed by the

danger of unfair prejudice, or confusion of the issues, or of misleading the jury.”



                                          -48-
Case No. 10-13-24


       {¶89} We do not find that the newspaper article that depicts a teenage girl

nearly drowning relevant to the valuation of the Ebbings’ properties. The incident

appears to be isolated and happened miles away from the property, and therefore,

has an insignificant impact on the market value of the Ebbings’ property. We note

again that the Ebbings’ property is farmland and find the necessity of traveling

nearby roads during floods is negligible. Further, even if we did find that it was

relevant, its probative value is substantially outweighed by its prejudicial effect.

Its overriding effect is to enflame the passions of the jury, and that effect is

exacerbated by the inclusion of the article along with the pictures. Thus, the trial

court erred in admitting the images on pages 48 and 49 of Vannatta’s report into

evidence.

       {¶90} For reasons detailed more fully below, we find that these errors

constitute plain error.

                    Exclusion of ODNR’s Witnesses & Evidence

       {¶91} Finally, ODNR argues that the trial court erred in excluding its own

witnesses and evidence regarding ODNR’s resumption of lake level management

practices at GLSM and a storm event in January of 2013.

       {¶92} On appeal, ODNR does not specifically tell this court why the

images of the January 2013 flood event were relevant in determining the value of

the Ebbings’ properties. However, at a pretrial conference, ODNR argued that


                                       -49-
Case No. 10-13-24


these images were relevant to determine “the extent of the take [and] * * * the fair

market value of the property taken.” August 16, 2013 Pretrial Conference Tr., p.

27. The trial court was correct in determining that these photographs would not be

admissible to determine “the extent of the take,” as that issue had already been

decided and was not an issue for the jury. Further, we fail to see how the January

2013 flooding event is relevant to the issues of valuation, just because it was

determined that the flood was not caused by the spillway. Without any other

explanation as to the relevance of these photographs, we cannot find that the trial

court abused its discretion in excluding these photographs.

       {¶93} The trial court also excluded three of ODNR’s witnesses, who

purportedly were to testify in regard to ODNR’s resumption of lake level

management practices at GLSM. ODNR believed that this evidence was relevant

to determine the extent of the take and also relevant to the issue of future flooding.

However, the trial court agreed with the Ebbings and found that what ODNR has

done or will do in the future to minimize its use of the easement is irrelevant to the

valuation of the permanent flowage easement.

       {¶94} Determining the value of property to be appropriated is a two-step

process.      City of Middletown v. Campbell, 21 Ohio App.3d 63, 66 (12th

Dist.1984).     “First, the date of take must be ascertained, and then, the value of the

property on that date.” (Emphasis added.) Id.; see also Evans v. Hope, 12 Ohio


                                          -50-
Case No. 10-13-24


St.3d 119, 121 (1984) (“Having already determined the date of take to be July

1981, the subject property must be valued as of that date.”). The trial court

determined that the date of the take was the date of trial, August 28, 2013.19 See

Trial Tr., p. 458.            Thus, what ODNR was doing in regard to lake level

management prior to and at the date of the take was relevant.20

         {¶95} Further, in Doner the Supreme Court of Ohio made clear that ODNR

is liable for the “damage to downstream landowners caused by the intermittent,

but inevitably recurring flooding that resulted from the new western spillway.”

Doner at ¶ 85. However, the Court was equally as adamant that ODNR should

“commence appropriation proceedings to determine the amount of their taking of

the property” and that the “determination of the extent of the taking will be made



19
   Neither party appealed the trial court’s decision to determine the date of take as August 28, 2013. We
note that the date of take is an important decision to be made by the trial court as it determines when the
property should be valued. For example, in Director of Highways v. Olrich, 5 Ohio St.2d 70, 73 (1966),
the Court makes clear that any damage to a property before the date of take is “the owner’s loss, while
[damage] that occurs after the taking is the loss of the appropriator.” See also In re Appropriation for Hwy.
Purposes Land of Winkelman, 13 Ohio App.2d 125 (3d Dist.1968), paragraph one of the syllabus (finding
that “the market value of the land shall be determined on the basis of the circumstances existing the
moment before the take”). Therefore, by the trial court determining the date of take is the date of trial, all
damage that occurred to the Ebbings’ properties before 2013 would be attributable to the Ebbings, not
ODNR. This seems illogical and it is not how the parties proceeded. However, because the trial court
determined that the date of take was the date of trial, and because no party challenged the date of take on
appeal, we must use the date of take the trial court set in our analysis. Therefore, all circumstances existing
the moment before the take, i.e., the date of trial, are relevant to determining the value of the properties,
including the resumption of lake level management practices.
20
   It is important to note that “[a]ll rights sought to be appropriated in eminent domain must be taken
absolutely and unconditionally.” 26 Am. Jur. 2d Eminent Domain § 119. Accordingly, the government
“must take absolutely whatever rights it seeks to appropriate, paying in full for such rights, regardless of
future intentions or statements regarding them.” (Emphasis added.) Id. Our holding is limited to
measures that ODNR had taken prior to the date of the take. Any declarations of future intentions by
ODNR should not be considered by the jury.

                                                    -51-
Case No. 10-13-24


by the court presiding over the appropriation proceeding.” (Emphasis added.) Id.

at ¶ 86.    While the parties agreed as to the extent of the taking, the trial court

allowed Vannatta to testify that ODNR’s taking would actually exceed that to

which both parties had already stipulated. Again, this error was exacerbated when

the trial court prohibited ODNR from attacking Vannatta’s statement by

presenting evidence about the resumption of lake level management practices,

which might have shown the jury that the taking will not exceed the flowage

easement.

       {¶96} Moreover, the trial court allowed all of the Ebbings’ witnesses to

testify, at great length, as to the “negative external factors” of ODNR’s taking,

which affects the value of the residual land. Again, the trial court prohibited

ODNR from countering this evidence by presenting its own evidence about its

current lake management practices which, according to ODNR, has helped prevent

some of these “negative external factors” from happening as frequently at the date

of take. We fail to see how a “willing, informed buyer” would only want to be

aware of “negative external factors” but would not take into consideration any

present efforts by ODNR to lessen these negative external factors. The Ebbings

cannot have it both ways: present unfavorable evidence about “negative external

factors” that are created by ODNR but then prohibit ODNR from presenting its




                                        -52-
Case No. 10-13-24


own evidence about measures that it has already implemented, at the time of the

take, to counter those same “negative external factors.”

       {¶97} Lastly, the trial court denied ODNR’s request to have Glenn Cobb

testify as to his general knowledge of the GLSM area. ODNR wanted Cobb to

testify as to the conditions before and after the construction of the 1997 spillway.

The trial court denied ODNR’s request stating that Cobb could not provide any

relevant testimony since he did not have any specific, personal knowledge of the

Ebbings’ properties. See Trial Tr., p. 305-310. However, as mentioned above, the

trial court allowed the Ebbings to present numerous and duplicative photographs

that depicted properties other than the Ebbings’ two farms. The trial court even

allowed Vannatta to testify as to prejudicial events that happened miles away from

the Ebbings’ properties, like the near-drowning incident of a teenage girl, and Mr.

Post’s fear that an EMS truck would not be able to reach his property. Thus, the

trial court allowed the Ebbings to present their own favorable evidence of the

general GLSM area, but prohibited Cobb from testifying as to his general

knowledge of the GLSM area.

       {¶98} We find that the trial court erred when it prohibited ODNR from

presenting evidence which would be relevant to the value of the Ebbings’ residue

at the date of the take. Further, we find that the plain error doctrine must be

invoked in to order to prevent a manifest miscarriage of justice. The Ebbings were


                                        -53-
Case No. 10-13-24


allowed to re-litigate the issue of the extent of the take in Vannatta’s report and

through his testimony at trial. At the same time, ODNR was prevented from

presenting any testimony to counter this evidence.       Again, the Ebbings were

allowed to present evidence concerning the negative external factors that an

informed and willing buyer would consider, but ODNR was repeatedly denied the

ability to counter this evidence with their own evidence concerning the resumption

of lake level management practices, which had occurred prior to the date of take.

While the Ebbings were allowed to present evidence that portrayed the general

GLSM area, ODNR’s witness was prohibited from testifying as to his general

knowledge of the GLSM area. The one-sided presentation of evidence resulted in

an unfair trial for ODNR and we must reverse the judgment below “in order to

maintain the integrity and fundamental fairness” of our judicial proceedings.

Reichert, 18 Ohio St.3d at 224.

         {¶99} In conclusion, we find that the trial court plainly erred by allowing

Vannatta to testify that ODNR’s taking will exceed the scope of the permanent

flowage easement and by admitting the inflammatory pictures and a news article

detailing how a teenage girl nearly drowned miles away from the Ebbings’ two

farms.     We also find that the trial court erred in admitting irrelevant and

duplicative photographs of the spillway and general flooding, which did not depict

the Ebbings’ properties. These errors are aggravated by the fact that the trial court


                                         -54-
Case No. 10-13-24


denied ODNR the ability to present its own evidence which would rebut issues the

Ebbings raised at trial. However, we find that the portion of Vannatta’s report in

which he gave nominal consideration to the fact that the properties were within the

100-year floodplain was properly admitted into evidence.

       {¶100} Accordingly, we overrule in part and sustain in part ODNR’s

second assignment of error.

                              Assignment of Error No. III

       {¶101} In its third assignment of error, ODNR argues that the trial court

erred in charging the jury with instructions that materially affected its substantial

rights. Specifically, ODNR argues that the trial court’s inclusion of the words

“frequent, severe and persistent” was a mischaracterization of the nature of

ODNR’s flowage easement and prejudiced ODNR.

       {¶102} Jury instructions are within the sound discretion of the trial court

and will not be disturbed on appeal unless an abuse of discretion is shown. State

v. Orians, 179 Ohio App.3d 701, 2008-Ohio-6185, ¶ 10 (3d Dist.). Further, a

reviewing court must “consider the jury charge as a whole and ‘must determine

whether the jury charge probably misled the jury in a matter materially affecting

the complaining party’s substantial rights.’ ” Kokitka v. Ford Motor Co., 73 Ohio

St.3d 89, 93 (1995), quoting Becker v. Lake Cty. Mem. Hosp. W., 53 Ohio St.3d

202, 208 (1990).


                                         -55-
Case No. 10-13-24


        {¶103} The Ebbings make a number of arguments in defense of the trial

court’s decision to include the words “frequent, severe, and persistent” in its jury

instructions. First, they argue that it was “invited error” because ODNR’s own

expert, Dunzweiler, included the phrase “frequently, severely, and persistently” in

its expert report, on pages 3, 39, and 85. (Appellee’s Br., p. 22). This is not

supported by the record. We have reviewed pages 3, 39, and 85 and fail to see

where Dunzweiler used this phrase in his report.21 Thus, we will not address

whether ODNR “invited error” as to this assignment of error.

        {¶104} In the alternative, the Ebbings argue that the jury instruction was

appropriate because it was consistent with the Court’s “language in Doner,

conformed to the evidence before the Supreme Court [of Ohio] and the trial court,

and reflected terms previously accepted by ODNR.” (Id.). Further, they argue

that even if the trial court did err in permitting this jury instruction, it did not affect

ODNR’s substantial rights, and was thus harmless.

        {¶105} Initially, we note that the Supreme Court of Ohio used the phrase

“intermittent and inevitably recurring” to describe the ODNR’s flooding. It never

used the phrase “frequently, severely, and persistently” in its opinion, except once

when quoting the Court of Common Pleas of Mercer County’s decision of State ex


21
  We do not see the phrase used anywhere on page 3 of Dunzweiler’s report; page 39 contains a map that
has no text on the page, let alone the aforementioned phrase; and page 85 contains a comparable land sale
which does not describe ODNR’s flowage easement.

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rel. Post v. Speck, Mercer App. No. 10-2006-001, 2006-Ohio-6339. The Court

never again used the word “persistent” in its opinion. While the Court used the

word “severe” four other times in its opinion, it only was when it was

recapitulating the experts’ testimony.    However, the Court did describe the

flooding caused by ODNR as “frequent” several times throughout its opinion.

Doner, ¶ 18, 69, 80. Thus, we cannot find that the word “frequent” was improper

in the jury instruction, and are left to determine if the words “severe” and

“persistent” were erroneous and prejudicial.

      {¶106} We find that the words severe and persistent could arguably

describe the flooding in the case. As to severity, Vannatta testified that flooding

impacts 40% of both farms. Stanley testified that the flooding usually lasts for a

week to two weeks and the flooding can be four to 10 feet deep. Further, Stanley

testified that the flooding caused blowouts, bank erosion, soil erosion, soil

compaction, and that heavy debris will wash up on his farm during the flooding.

As to persistent, Zumberge testified that Ebbing West and East Farms have

flooded “most years since [August 1998] * * *.”         Stanley testified that his

properties have flooded in 2009, 2010, 2011, and 2013. Thus, there was evidence

that ODNR’s flooding was severe and persistent.

      {¶107} While it may have been better practice for the trial court to simply

use the language contained in the syllabus of Doner, we cannot find that the


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court’s use of the words, frequent, severe, and persistent, was erroneous or

prejudicial in these specific circumstances.

       {¶108} Accordingly, we overrule ODNR’s third assignment of error.

                                  Cumulative Error

       {¶109} On appeal, ODNR argues that:

       [t]he cumulative effect of the trial court’s errors prevented ODNR
       from receiving a fair trial. Each error described above demonstrates
       an abuse of discretion that must be remedied. * * * The combination
       of these errors left the jury with a false impression that the Property
       was continuously underwater, unusable, and devoid of all value.

(Appellee’s Br., p. 16). Without acknowledging that Ohio Appellate Courts and

Federal Appellate Courts are split on the issue of whether cumulative error is

appropriate in civil cases, ODNR urges this court to apply the cumulative error

doctrine in the present matter.

       {¶110} The cumulative error doctrine is usually used in criminal cases and

holds that “a judgment may be reversed if the cumulative effect of multiple errors

deprives a defendant of his constitutional rights even though, individually, the

errors may not rise to the level of prejudicial error or cause for reversal.” In re

Guardianship of Clark, 10th Dist. Franklin No. 09AP-96, 2009-Ohio-3486, ¶ 27,

citing State v. Garner, 74 Ohio St.3d 49 (1995).

       {¶111} The Supreme Court of Ohio, in a civil case, has stated:

       “Generally, in order to find that substantial justice has been done to
       an appellant so as to prevent reversal of a judgment for errors

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       occurring at the trial, the reviewing court must not only weigh the
       prejudicial effect of those errors but also determine that, if those
       errors had not occurred, the jury or other trier of the facts would
       probably have made the same decision.”

O’Brien v. Angley, 63 Ohio St.2d 159, 164-165 (1980), quoting Hallworth v.

Republic Steep Corp., 153 Ohio St. 349 (1950), paragraph three of the syllabus.

While the O’Brien case specifically referred to the plural “errors” in evaluating

substantial justice, the case only dealt with one type of error, and did not mention

the cumulative error doctrine. Id. at 165; see also Bigler v. Personal Serv. Ins.

Co., 7th Dist. Belmont No. 12 BE 10, 2014-Ohio-1467, ¶ 173.

       {¶112} The Tenth, Eleventh, and Twelfth Districts have stated that the

cumulative error doctrine is not typically applied in civil cases, and those courts

have been reluctant to apply it. See Westlake v. Ohio Dept. of Agriculture, 10th

Dist. Franklin Nos. 08AP-71, 08AP-72, 2008-Ohio-4422, ¶ 25 (“In Ohio, the

cumulative error doctrine is not typically employed in a civil context.”); Skyes v.

Gen. Motors Corp., 11th Dist. Trumbull No. 2003-T-0007, 2003-Ohio-7217, ¶ 39

(“In Ohio, the cumulative error doctrine is not universally employed in a civil

context.”); Allen v. Summe, 12th Dist. Butler No. CA92-04-067, 1993 WL 156184,

*2 (“This court is somewhat reluctant to apply the cumulative error doctrine in

civil cases.”). The Second District has recognized that it has taken inconsistent

positions on whether the cumulative error doctrine is appropriate in civil cases.

Ratliff v. Brannum, 2d Dist. Greene No. 2008-CA-05, 2008-Ohio-6732, ¶ 155. On

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the other hand, the First, Seventh, and Eighth Districts have affirmatively stated

that they would apply the cumulative error doctrine in civil cases. See Katz v.

Enzer, 29 Ohio App.3d 118, 124, (1st Dist.1985) (actually applying cumulative

error); Bigler, 2014-Ohio-1467, ¶ 175; Edge v. Fairview Hosp., 8th Dist.

Cuyahoga No. 95215, 2011–Ohio–2148.22

         {¶113} We find that some of the errors committed by the trial court are

reversible on their own.              In the alternative, however, we would apply the

cumulative error doctrine and reverse the trial court’s judgment. Under the unique

circumstances of this case, and because of the multiple errors of the trial court, we

believe that applying the cumulative error doctrine is necessary to protect the

substantial rights of ODNR. When viewing all the errors cumulatively, it only

confirms that ODNR was prevented from receiving a fair trial. First, the trial court

arbitrarily denied ODNR’s request for a jury view. It then allowed the Ebbings’

expert to include in its report and to testify at trial, that ODNR’s taking would



22
   Among Federal Appellate Courts, this issue is similarly undecided. The Third Circuit Court of Appeals
has affirmatively stated that it does not apply cumulative error in civil cases. See U.S. S.E.C. v. Infinity
Group Co., 212 F.3d 180, 196 (3d Cir.2000). The Fourth, Tenth, and Eleventh Circuits have all indicated
that their courts have not affirmatively determined the issue of whether cumulative error applies in civil
cases. See Greig v. Botros, 525 Fed.Appx. 781, 795 (10th Cir.2013); Esoteric, LLC v. One (1) 2000
Eighty-Five Foot Azimut Motor Yacht Named M/V STAR ONE, 478 Fed.Appx. 639, 641 (11th Cir.2012);
Anthony v. Ward, 336 Fed.Appx. 311, 322 (4th Cir.2009). On the other hand, the Second, Sixth, Seventh,
Ninth, and Federal Circuits have all stated that they would apply the cumulative error doctrine in civil cases
(and some have actually applied it to reverse a judgment). Malek v. Federal Ins. Co., 994 F.2d 49, 55 (2d
Cir.1993); Kendel v. Local 17-A United Food & Commercial Workers, 512 Fed.Appx. 472, 485 (6th
Cir.2013); Thompson v. City of Chicago, 722 F.3d 963, 979 (7th Cir.2013); Jerden v. Amstutz, 430 F.3d
1231, 1240-41 (9th Cir.2005); Hendler v. United States, 952 F.2d 1364, 1383 (Fed.Cir.1991).



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exceed the flowage easement, contrary to what the Ebbings had stipulated to

before the trial. The trial court denied ODNR’s request to present Cobb as a

witness despite having general knowledge of the GLSM area because he had no

personal knowledge of the Ebbings’ properties. However, it allowed duplicative

evidence from the Ebbings concerning properties that were in the general GLSM

area but not near the Ebbings’ two farms. Finally, it allowed the Ebbings to show

highly prejudicial and irrelevant photographs depicting a teenage girl nearly

drowning in her car, miles away from the Ebbings’ properties.

       {¶114} There is no doubt that ODNR has taken a permanent flowage

easement on the Ebbings’ properties and in turn, the Ebbings deserve just

compensation. However, ODNR, just like the Ebbings, is entitled to a fair trial

free from arbitrary decisions by the trial court.

       {¶115} Having found no error prejudicial to ODNR in the third assignment

of error in its entirety and in the second assignment of error in part, but having

found error prejudicial to ODNR in the first assignment of error in its entirety and

the second assignment of error in part, we reverse the trial court’s judgment and

remand this matter for further proceedings consistent with this opinion.

                                                           Judgment Reversed and
                                                                Cause Remanded

PRESTON, J., concurs in Judgment Only.

/jlr

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SHAW, J., DISSENTS:

                            First Assignment of Error

       {¶124} For the same reasons stated in the majority opinion of this court in

ODNR v. Knapke Trust, 3d Dist. Mercer No. 10-13-25, I do not believe the trial

court erred in denying a jury view in this case and I respectfully disagree with the

majority’s disposition of this assignment of error. I concur fully with the analysis

of the trial court on this issue as set forth in the majority opinion and I would

overrule ODNR’s first assignment of error.

                           Second Assignment of Error

       {¶125} As stated in the majority opinion of this court in ODNR v. Knapke

Trust, I agree with the majority in this case that admission of the photograph of the

near drowning victim, included in Vannatta’s appraisal report, was error.

However, unlike the majority, I do not believe admission of the photograph

constituted reversible error, either alone or cumulatively with any other error in

this case.

       {¶126} As for the ODNR witnesses excluded by the trial court, I concur

fully with the analysis and decision of the trial court regarding these witnesses as

set forth in the majority opinion. I respectfully disagree with the analysis and

conclusions of the majority regarding the significance of these witnesses to




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ODNR’s case, or more importantly, to the sole issue before the jury as to the

valuation of the take, without regard to the future intentions of ODNR.23

         {¶127} Nor do I agree with the majority’s application of either a “plain

error” or “cumulative error” doctrine in these circumstances.24 On the contrary, I

would find any error in this regard to be harmless, given the totality of evidence

presented as to the amount of flooding, crops destroyed, tile blowouts, erosion,

soil compaction, debris carried onto the land, and the inherent reasonableness of

the jury’s award relative to the opposing expert appraisals in this case.

         {¶128} For the foregoing reasons, I respectfully disagree with the majority

disposition of this assignment of error. I would overrule the second assignment of

error.

                                    Third Assignment of Error

         {¶129} I concur with the analysis and disposition of the majority in

overruling ODNR’s third assignment of error regarding the jury instructions,

which is largely aligned with the analysis and disposition of the similar assignment

of error in ODNR v. Knapke Trust.


23
   Part of Jury Instruction No. 2 read in this case, “In determining the damages to award the Ebbings, you
must assume the Plaintiff will make the fullest and most damaging use reasonably foreseeable of the
permanent and perpetual flowage easement regardless of any future intentions, future promises or
statements regarding future intentions or promises by the Plaintiff.” (Emphasis added). This jury
instruction alone would make any such testimony about future undertakings irrelevant.
24
   I would stress that whether cumulative error is actually applicable in civil cases has yet to be determined
by the Ohio Supreme Court or the United States Supreme Court, and that Ohio Appellate Courts and
Federal Circuit Courts are split as to its application.

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                                              Conclusion

        {¶130} For all of the foregoing reasons, and despite some areas of

agreement on certain individual issues noted above, I respectfully dissent from the

decision of the majority to reverse this case.25

        {¶131} I would affirm the jury verdict and judgment of the trial court.




25
   I would note that I specifically do not endorse the many footnotes in the majority opinion, which purport
to find potential errors and irregularities that were not raised by either party.

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