[Cite as Putnam Cty. Bd. of Commrs. v. Weis, 2019-Ohio-3720.]




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


BOARD OF COUNTY COMMISSIONERS
OF PUTNAM COUNTY, OH,

        PLAINTIFF-APPELLEE,                                     CASE NO. 12-19-01

        v.

WILLIAM R. WEIS, ET AL.,                                        OPINION

        DEFENDANTS-APPELLANTS.


BOARD OF COUNTY COMMISSIONERS
OF PUTNAM COUNTY, OH,

        PLAINTIFF-APPELLEE,                                     CASE NO. 12-19-02

        v.

MARK G. MAAG, ET AL.,                                           OPINION

        DEFENDANTS-APPELLANTS.


                Appeals from Putnam County Common Pleas Court
                  Trial Court Nos. 2018-CV-23 and 2018-CV-26

                                    Judgments Affirmed

                         Date of Decision: September 16, 2019
Case Nos. 12-19-01, 12-19-02




APPEARANCES:

       Linde Hurst Webb for Appellants

       Frank J. Reed, Jr. and Stephen E. Chappelear for Appellee



SHAW, J.

       {¶1} Landowners-appellants, Mark Maag, Patricia Maag, William Weis, and

Mary K. Weis (collectively, the “landowners”), bring these appeals from the

January 28, 2019, and February 6, 2019, judgments of the Putnam County Common

Pleas Court awarding landowners compensation for land that had been appropriated

by the Board of Putnam County Commissioners (the “commissioners”) to widen

County Road 5 (“Road 5”). On appeal, landowners contend that the trial court erred

by refusing to dismiss the commissioners’ applications for appropriation for failure

to meet the requisite statutory requirements, that the trial court erred by determining

the “date of the take,” that the trial court erred by consolidating all of the jury trials,

that the trial court erred when it “conditioned a new trial date on the landowners

waiving their constitutional right to separate trials,” and that the trial court erred by

excluding the testimony of a rebuttal witness at trial.




                                           -2-
Case Nos. 12-19-01, 12-19-02


                                              Background

        {¶2} In 2012, commissioners filed appropriation petitions seeking to widen

Road 5 in part to accommodate truck traffic to an industrial park. While litigation

was ongoing in both the trial court and this Court, the widening of the road was

completed in October of 2012.1

        {¶3} In 2014, this Court determined that the commissioners did not follow

the proper procedures for the road-widening project. See State ex rel. Patrick Bros.,

A Gen. Partnership v. Putnam Cty. Bd. of Commrs., 3d Dist. Putnam No. 12-13-05,

2014-Ohio-2717, appeal not accepted 141 Ohio St.3d 1422, 2014-Ohio-5567.

Subsequently, after further proceedings occurred at the trial court level, this Court

directed the commissioners to dismiss the appropriation cases that had been

previously filed and to refile them once the proper procedures had been followed.

See Putnam Cty. Bd. Of Commrs. V. Patrick Bros., et al., 3d Dist. Putnam No. 12-

15-06, (Dec. 21, 2015).2

        {¶4} In 2018, commissioners filed thirteen appropriation cases against the

Road 5 landowners. The refiled cases were done after a unanimous vote of the

commissioners pursuant to a freeholders petition submitted under R.C. 5555.06.3


1
  An affidavit included in the record states that widening Road 5 began on May 31, 2012, and was completed
in October of 2012.
2
  We placed this case on our accelerated calendar and it was ultimately dismissed. Although our accelerated
calendar prevents cases from being cited as legal authority, we cite it here only to help provide background
for this matter.
3
  To an extent, landowners contest this issue. At least they argue that the unanimous resolution was not
attached to the refiled complaints.

                                                    -3-
Case Nos. 12-19-01, 12-19-02


The commissioners also determined that the appropriation was necessary, which

was stated in the applications for appropriation. Attached to the individual petitions

for appropriation were the 2011 appraisals with offers to pay the assigned value of

the property.

         {¶5} Only two of the thirteen appropriation cases proceeded to a jury verdict

and those two cases are the subjects of this appeal. One of the properties, the Weis

property, had .0298 net acres appropriated for a perpetual, permanent easement.4

The second property, owned by the Maags, had .6681 acres of property

appropriated.5

         {¶6} The trial court set the matters for trial on October 9-12, 2018, using an

abbreviated scheduling due to R.C. 163.22, which requires appropriation

proceedings to “be advanced as a matter of immediate public interest and concern

and shall be heard by the court at the earliest practicable moment.” All of the cases

were consolidated for purposes of trial under Civ.R. 42(A), with the trial court

finding that they presented common questions of law and fact.                                 Landowners

challenged the consolidation, requesting separate individual trials, but this was

denied by the trial court.




4
  In total, the Weis family owned just over half an acre in gross acres, .56. In net acreage, the size of their
property went from .5003 acres to .4705 net acres after the appropriation.
5
  The Maag property, also sought (retroactively) temporary easements for roadway crew to be on part of the
land for construction purposes, even though it had already been completed.

                                                     -4-
Case Nos. 12-19-01, 12-19-02


         {¶7} On August 3, 2018, a pretrial hearing was held wherein landowners

filed a motion to continue the October trial date. Landowners contended that they

needed additional time to get their own appraisals of the appropriated property

completed. The trial court inquired as to why the landowners were only just now,

so many years after the actual physical appropriation, and over six months into the

current action, attempting to get their own appraisals. Unsatisfied with landowners’

response, the trial court denied the motion to continue the trial date. Landowners

then again attempted to sever the trials. The commissioners argued that this was

just another attempt at delaying the matter. Although the trial court again refused

to sever the trials, in order to prevent confusion on valuing the properties an entry

was issued that one jury would hear the evidence on each property, make a finding

as to compensation for that property, and then proceed to value the appropriation of

the next property.

         {¶8} A jury trial was held on October 9-11, 2018.6 The jury heard testimony

from the landowners as to what they felt they were owed in compensation, and then

the jury heard from the commissioners’ appraiser. Ultimately the jury awarded the

Weis family $10,000, consistent with the commissioners’ appraisal, and the jury




6
 Three cases actually proceeded to trial, but only two were tried before the jury. It appears the third matter
settled and it is not a subject of this appeal.

                                                     -5-
Case Nos. 12-19-01, 12-19-02


awarded the Maag family $6,755 consistent with the commissioners’ appraisal.7

Judgment entries finalizing the verdicts were filed January 28, 2019, and February

6, 2019, respectively. It is from these judgments that landowners appeal, asserting

the following assignments of error for our review.

                            Assignment of Error No. 1
         The trial court erred by refusing to dismiss the commissioners’
         applications for appropriation for failure to meet the
         requirements of R.C. 163.04 and R.C. 163.041.

                             Assignment of Error No. 2
         The trial court erred by determining the “date of take” was May
         31, 2012.

                             Assignment of Error No. 3
         The trial court erred by ordering all of the landowners’ jury trials
         be consolidated.

                             Assignment of Error No. 4
         The trial court erred when it conditioned a new trial date on the
         landowners waiving their constitutional right to separate trials
         and challenging the consolidation of jury trials.

                            Assignment of Error No. 5
         The trial court erred when it excluded the landowners’ witness
         Robert Hunt in rebuttal.

         {¶9} For ease of discussion we elect to address some of the assignments of

error out of the order in which they were raised.


7
  William Weis testified that he was seeking $37,800 in compensation. He testified that although the property
to be acquired was .0298 acres out of roughly half an acre, he argued that he was losing 10 feet of the 24 feet
of the frontage of his property. He felt that this loss of approximately 42% of his frontage entitled him to
42% of the value of the entire property. Mark Maag testified that he was seeking $72,154 for the .6681 acres
that was taken from him. He felt that he was losing 10 percent of the front of his property and 10 percent
from the side, so he should be entitled to 20% of his property value, $60,000, plus $9,754 for land, and $2,400
for landscaping.

                                                     -6-
Case Nos. 12-19-01, 12-19-02


                                   Second Assignment of Error

        {¶10} In landowners’ second assignment of error, they argue that the trial

court erred by determining that the “date of the take” was May 31, 2012,

approximately when construction to widen Road 5 began. Specifically, landowners

contend that while the Road 5 construction began on May 31, 2012, having their

land valued as of the date of an “illegal take”8 is unjust, and the date of the take

should have been set later, particularly when “valid” applications for appropriation

had been filed by the commissioners.

                                         Standard of Review

        {¶11} The determination of the “date of the take” in an appropriation action

is an issue of law that we review de novo. Ohio Dept. of Nat Resources v. Thomas,

3d Dist. Mercer No. 10-16-05, 2016-Ohio-8406, ¶ 68.

                                                Analysis

        {¶12} The Supreme Court of Ohio has specifically set guidelines for

determining the “date of take” for valuation purposes in appropriation actions. “It

is recognized in this state that property taken for public use shall be valued as of the

date of trial, that being the date of take, unless the appropriator has taken possession




8
  It is unclear what the landowners are basing the phrase “illegal take” upon. Even when we found that the
commissioners had not followed the proper procedures in State ex rel. Patrick Bros., A Gen. Partnership v.
Putnam Cty. Bd. of Commrs., 3d Dist. Putnam No. 12-13-05, 2014-Ohio-2717, appeal not accepted 141 Ohio
St.3d 1422, 2014-Ohio-5567, we still found that the commissioners had the authority to take the land so long
as the right procedures were followed.

                                                    -7-
Case Nos. 12-19-01, 12-19-02


prior thereto, in which event compensation is determined as of the time of the

taking.” (Emphasis added.) Director of Highways v. Olrich, 5 Ohio St.2d 70, 72,

(1966) citing In re Appropriation for Highway Purposes, 167 Ohio St. 463 (1958);

Nichols v. City of Cleveland, 104 Ohio St. 19 (1922); Board of Education of

Cleveland City School Dist. V. Hecht, 102 Ohio App. 521 (8th Dist.1955); In re

Appropriation of Easement for Highway Purposes, 90 Ohio App. 471 (2d

Dist.1951).9

         {¶13} Based on the explicit language of the Supreme Court of Ohio in

Olrich, where an appropriating authority has taken possession of land prior to trial,

the appropriated land should be valued at the time of the taking. Here it is essentially

undisputed that the Road 5 project commenced May 31, 2012, and was finished in

October of 2012. The trial court determined that 2012 was the proper time for the

take because it was when the commissioners “came upon [landowners’] property to

complete the widening of County Road 5.” (Doc. No. 191). The trial court’s

determination is in clear compliance with the Olrich holding.

         {¶14} Nevertheless, landowners contend that the commissioners essentially

unlawfully occupied the land for Road 5 from May 31, 2012, until the time of trial,

and that the landowners were not being compensated for it. This of course ignores


9
 We recognized the Olrich holding as controlling authority for appropriation actions in Ohio Dept. of Nat
Resources v. Thomas, 3d Dist. Mercer No. 10-16-05, 2016-Ohio-8406, but found that a flowage easement,
which had to be determined over a period of time to be a taking, was a slightly different matter than what is
presented here in a more traditional case.

                                                    -8-
Case Nos. 12-19-01, 12-19-02


the fact that the landowners are being compensated as though the land was

purchased when the government entered onto it. The few cases cited by landowners

such as Becos v. Masheter, 15 Ohio St.2d 15 (1968), do nothing to contradict the

Olrich holding’s applicability to this matter, and therefore we see no reason to

depart from Olrich.10 Therefore, landowners argument is not well-taken, and their

second assignment of error is overruled.

                                     First Assignment of Error

         {¶15} In landowners first assignment of error, they argue that the trial court

erred by refusing to dismiss the commissioners’ applications for appropriation in

this matter. Specifically, they argue that commissioners failed to comply with R.C.

163.04, 163.041, and R.C. 163.59(E), by “neglecting to serve” a good-faith offer,

and by failing to obtain new appraisals and title work when the appropriation action

was filed this time. In addition, the landowners argue that the commissioners failed

to pass a unanimous resolution and attach it to the petitions.

                                         Standard of Review

         {¶16} At least one Ohio Appellate Court has found that the issue of proper

service or notice pursuant to R.C. 163.04(A) is jurisdictional in nature, and thus a

legal matter, which we would review de novo. Dublin v. Beatley, 5th Dist. Delaware


10
  The Becos case dealt with a situation where property had depreciated in value due to a county acquiring
other properties in the vicinity and demolishing buildings. It was determined that in such a situation, where
the government’s action caused the diminution in value before they entered onto a property, the date of the
take could be set earlier. It has no relevance to the case before us.

                                                    -9-
Case Nos. 12-19-01, 12-19-02


No. 16CAE040021, 2016-Ohio-5606, ¶ 16.11 Any related issues that deal with

factual questions, however, are reviewed under an abuse of discretion standard.

Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). An abuse of discretion is

a decision that is unreasonable, arbitrary, or unconscionable. Id.

                                                  Analysis

         {¶17} Initially we observe that the “notice” requirements for an

appropriation action are contained in Revised Code 163.04, which reads as follows.

         (A) At least thirty days before filing a petition pursuant to
         section 163.05 of the Revised Code, an agency shall provide notice
         to the owner of the agency’s intent to acquire the property. The
         notice shall be substantially in the form set forth in section
         163.041 of the Revised Code.12

         (B) Together with the notice that division (A) of this section
         requires, or after providing that notice but not less than thirty
         days before filing a petition pursuant to section 163.05 of the
         Revised Code, an agency shall provide an owner with a written
         good faith offer to purchase the property. * * *

         (C) An agency may appropriate real property only after the
         agency obtains an appraisal of the property and provides a copy
         of the appraisal to the owner or, if more than one, each owner or
         to the guardian or trustee of each owner. * * * When the appraisal
         indicates that the property is worth less than ten thousand dollars,
         the agency need only provide an owner, guardian, or trustee with
         a summary of the appraisal. The agency shall provide the copy or
         summary of the appraisal to an owner, guardian, or trustee at or

11
   Although we would typically address jurisdictional-related issues first, there is no jurisdictional problem
here and the discussion infra is briefly informed by a definitive determination on the “date of take” issue that
we already addressed in the second assignment of error.
12
   Revised Code 163.041, which is referenced in R.C. 163.04(A), contains a “form of notice” that is
essentially a sample letter to be sent to a landowner. The sample letter contains written notices of receiving
an offer for the value of the property, notice that the landowners are not required to accept that offer, and
notice that if the parties cannot agree the taking may still occur.

                                                     -10-
Case Nos. 12-19-01, 12-19-02


       before the time the agency makes its first offer to purchase the
       property. * * *

       {¶18} In this case, it is undisputed that landowners received notice letters of

the commissioners’ intent to acquire their property on October 20, 2017, which

contained a copy of an appraisal report assigning value to the appropriated property.

The notice letter stated that if landowners agreed with the value, the county would

pay the appraised value, but if the landowners did not agree to the value, discussions

could be held upon the fair market value of the appropriated land. The notice letter

further stated that if no agreement was reached, a jury of eight people would decide

the fair market value of the land.

       {¶19} Landowners initially argued to the trial court that the notice they

received was insufficient and did not comply with R.C. 163.04. The trial court

disagreed, reasoning as follows.

       The property owners have individually lived with this
       appropriation proceeding[] for six years. In addition to the
       notices they received in the original 2012 case, they received a new
       notice by letter dated October 20, 2017. In addition, their
       attorneys received verbal and written notices of the
       Commissioners’ intent to acquire the property and, all parties
       received actual notice of the take by way of the fact that the
       construction project, the subject of the take was completed years
       earlier. What more notice can the legislature expect when the
       appropriation takes place after the take is completed?

(Doc. No. 119). We agree with the trial court that landowners were properly put on

notice in this matter pursuant to R.C. 163.04.


                                        -11-
Case Nos. 12-19-01, 12-19-02


       {¶20} Nevertheless, landowners contend that even if some notice was given,

it was not compliant with R.C. 163.04(B) and (C) because the appraisals that were

submitted had not been updated, meaning that the offers contained therein did not

constitute “good-faith” offers. Landowners contend that R.C. 163.59(E) required

the appraisals to be updated because more than two years had passed since the

original appraisals had been completed. Revised Code 163.59(E) reads as follows.

       (E) If information presented by the owner or a material change
       in the character or condition of the real property indicates the
       need for new appraisal information, or if a period of more than
       two years has elapsed since the time of the appraisal of the property,
       the head of the acquiring agency concerned shall have the appraisal
       updated or obtain a new appraisal. If updated appraisal
       information or a new appraisal indicates that a change in the
       acquisition offer is warranted, the head of the acquiring agency
       shall promptly reestablish the amount of the just compensation
       for the property and offer that amount to the owner in writing.

(Emphasis added.)

       {¶21} The trial court addressed the matter of whether “updated” appraisals

were necessary in this matter directly, disagreeing that R.C. 163.59(E) mandated

new appraisals here. The trial court found that in a situation such as this where the

date of the take for the original appraisals was 2012, and the date of the take for the

current appropriation action was still 2012, there was no need for new appraisals.

       In the case at bar, the date of the take was 2012 and the appraisal
       was 2011. It’s this Court’s determination that the two year
       update mandated by Rev[.] Code 163.59(E) does not apply to a
       case in which the take had already taken place and the date of the
       valuation has not changed since the prior appraisal.

                                         -12-
Case Nos. 12-19-01, 12-19-02



(Emphasis added.) (18CV19, Doc. No. 119).

         {¶22} The trial court was particularly persuaded by the fact that the taking in

this matter had already occurred. This was not a situation where an appropriation

action had been proceeding for so long that the value in the land had changed. Here

the land was valued in 2011 and taken in 2012.

         {¶23} As we have already determined in our discussion of the second

assignment of error, the 2012 “date of take” was appropriate in this matter as that

was when the government actually entered upon the land and took it to widen Road

5. It would be illogical to get a new appraisal to value the land as of the date of the

newly filed appropriation action when the property needed to be valued as it was in

2012.13

         {¶24} Finally, the landowners argue in their brief that the commissioners

failed to pass a unanimous resolution of necessity here, and that the commissioners

failed to attach the unanimous resolution to the complaints in this case, rendering

the complaints defective.14 The complaints in this matter reference a resolution of

necessity that had been passed; however, the old resolutions from 2012 were


13
   We note that the landowners’ rely on Dublin v. Beatley, 5th Dist. Delaware No. 16CAE040021, 2016-
Ohio-5606, in support of its argument that there is no jurisdiction in this matter because proper notice had
not been provided. However, landowners’ reliance is misplaced because Beatley involved a situation where
an individual deliberately evaded service of notice, and an appropriating authority failed to attach appropriate
documents due to neglect, whether excusable or otherwise. Neither of those situations is the case here where
landowners clearly received notice.
14
   This argument is really only made in passing in landowners’ brief, but they did emphasize it at oral
argument.

                                                     -13-
Case Nos. 12-19-01, 12-19-02


attached to the complaints. Nevertheless, the record clearly shows that a unanimous

resolution was passed by the commissioners in November of 2016 after public

hearings on the matter wherein some landowners were present.             Landowners

actually included the unanimous resolution and a transcript from the hearings before

the commissioners in a motion to stay these proceedings. (18CV19, Doc. No. 14,

Exs. 15, 16A).

       {¶25} Moreover, in the trial court’s entry overruling landowners’ motion for

summary judgment, the trial court stated that it was not even in dispute that “[t]he

refiled case was done by unanimous vote of the Commissioners pursuant to a

freeholders petitioner [sic] submitted pursuant to Rev. Code 5555.06[.]” (18CV19,

Doc. No. 119). Based on the record, it appears disingenuous for the landowners to

now argue that they were somehow deprived of “notice” by any failure to attach the

new resolution to the complaints when they were clearly aware of the new

unanimous resolution, especially since they filed a case regarding the validity of the

freeholder petition, which was being separately addressed in federal court.

       {¶26} After reviewing the record and the applicable legal authority, we find

that the notice and good-faith offers in this case provided by commissioners were

compliant with the appropriate statutes. We cannot find under these circumstances

that the trial court erred by declining to dismiss this case for lack of appropriate

notice. Therefore landowners first assignment of error is overruled.


                                        -14-
Case Nos. 12-19-01, 12-19-02


                              Third Assignment of Error

       {¶27} In landowners’ third assignment of error, they argue that the trial court

erred by consolidating all of the jury trials.

                                 Standard of Review

       {¶28} The management of cases and the decision to consolidate trials is

within the sound discretion of a trial court, and will not be disturbed absent an abuse

of discretion. See Director of Highways v. Kleines, 38 Ohio St.2d 317, 319-320

(1974).    An abuse of discretion is a decision that is arbitrary, capricious, or

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

                                       Analysis

       {¶29} In this case, the trial court ordered that all thirteen appropriation cases

would be presented to the same jury of eight individuals. The trial court determined

that the cases involved common questions of law and fact, which permitted

consolidation under Civ.R. 42(A). For reference, Civ.R. 42 reads:

       (A) Consolidation.

       (1) Generally. If actions before the court involve a common
           question of law or fact, the court may:

       (a) join for hearing or trial any or all matters at issue in the
           actions;

       (b) consolidate the actions; or

       (c) issue any other orders to avoid unnecessary cost or delay.


                                          -15-
Case Nos. 12-19-01, 12-19-02


       {¶30} Here, the landowners argue that the trial court erred in consolidating

the cases, claiming that each property had individual characteristics and different

owners. Landowners also contend that R.C. 163.09(E) specifically granted them

the right to separate, individual trials. Revised Code 163.09(E) reads, “The court,

with the consent of the parties, may order two or more cases to be consolidated and

tried together, but the rights of each owner to compensation, damages, or both shall

be separately determined by the jury in its verdict.” Landowners contend that they

did not consent to a consolidation of trials, so the trials had to be separate. We

disagree.

       {¶31} Contrary to landowners’ position, the Supreme Court of Ohio has held

in Director of Highways v. Kleines, 38 Ohio St.2d 317 (1974), that, “A trial court

may order consolidation of appropriation cases pursuant to the provisions of Civ.R.

42(A) without the consent of the parties notwithstanding the provisions of * * *

163.09(E).”    (Emphasis added.)      Kleines at syllabus.   Thus a trial court can

consolidate appropriation cases even when the parties did not agree to do so.

       {¶32} Here, the trial court found pursuant to Civ.R. 42(A), there were

common questions of law and fact related to each appropriation case. The trial court

actually explained this to the jury, stating,

       I’ve combined these cases together, because we have three cases
       that the jury is going to decide. There is [sic] three separate
       property owners. I thought it would be better, instead of having
       three separate cases, separate cases three weeks, we would do,

                                          -16-
Case Nos. 12-19-01, 12-19-02


            combine them all, because the property is very similar in location,
            and the nature of the construction job is similar to all three pieces
            of property. And I thought it would be better to combine them
            into one, have one jury decide what is the appropriate amount to
            pay the property owners for the property that has been
            appropriated.15

(Tr. at 7-8).

            {¶33} Moreover, in addition to finding that the cases should be consolidated

due to common questions of law and fact, the trial court actually took steps to

prevent any potential confusion between the properties by the way the trial was

actually structured. The trial court ordered that each property would be dealt with

in its entirety before moving on to the evidence for the next property. More

specifically, in this case, a single jury of eight individuals (with two alternates) was

selected to hear all of the evidence in all of the trials. Opening instructions were

given to the jury, then opening statements were provided concerning the first

property—the Weis property. Evidence was presented by both parties specifically

regarding the Weis property, exhibits were entered, closing arguments were given,

then the jury deliberated regarding just compensation on the Weis property. After

the verdict was returned on the Weis property, the same procedure was followed for

the Maag property. Based on the way the trials were conducted, they were largely

individual and separate, just in rapid succession.




15
     At this time the third case had not settled yet, so it seemed that three cases would be presented to the jury.

                                                        -17-
Case Nos. 12-19-01, 12-19-02


       {¶34} Furthermore, the Second District Court of Appeals rejected a very

similar argument against consolidation of trials in an appropriation matter in Village

of Wayne Lakes, Ohio v. Midwest United Industries, Inc., 2d Dist. Darke No. 1231,

1989 WL 125572, *4. In that case, nine separate appropriation actions were

consolidated for trial on the basis that they presented common questions of law and

fact. The Second District determined that the same legal standards and burdens of

proof were applied throughout the cases, and that all the parcels being acquired were

being used for the same purposes, permitting consolidation. This case is similar to

Wayne Lakes, where the burden of proof was the same, common questions of law

and fact were concerned, and all of the appropriated land was being used for

widening Road 5. Thus Wayne Lakes is persuasive authority in support of the trial

court’s decision to consolidate the trials.

       {¶35} Finally, we note that a trial court has the right to control its docket

regarding judicial economy. See Bender v. Diemert, 8th Dist. Cuyahoga Nos.

58304, 58368, 1991 WL 39680 * 1 (“Civil R. 42 permits the consolidation of actions

involving common questions of law or fact based upon considerations of judicial

economy.”). Conducting thirteen separate jury trials when the commissioners’

expert appraisal witness was the same for each, the standard of proof was the same

for each, and the purpose of the appropriation was the same for each would be

potentially cumbersome on a trial court, and thus a trial court could certainly find


                                          -18-
Case Nos. 12-19-01, 12-19-02


within its discretion that the interests of judicial economy supported consolidation.16

For all of these reasons landowners’ third assignment of error is overruled.

                                    Fourth Assignment of Error

         {¶36} In landowners’ fourth assignment of error, they argue that the trial

court erred when it “conditioned a new trial date on the landowners waiving their

constitutional right to separate trials and challenging the consolidation of jury

trials.” Essentially landowners argue that the trial court erred by denying their

motion for a continuance while still denying their request to sever the trials.

Landowners claim that the trial court requested a “quid pro quo” by asking if they

would waive their request to sever the trials if the trial court granted a continuance.

Landowners cite no legal authority whatsoever in support of their argument.17

                                         Standard of Review

         {¶37} We review the denial of a motion for continuance under an abuse of

discretion standard. State v. Unger, 67 Ohio St.2d 65, 67 (1981).

                                                 Analysis

         {¶38} In order to understand landowners’ argument related to this

assignment of error, it is necessary to review a fairly lengthy discussion that




16
   We are not suggesting that a trial court must, in the interests of judicial economy, consolidate the cases;
only that it is another potential reason supporting the trial court’s determination.
17
   We could disregard this assignment of error for this reason alone, as failure to cite to legal authorities
violates App.R. 16(A)(7). See also App.R. 12(A)(2); State v. Banks, 3d Dist. Seneca No. 13-12-18, 2013-
Ohio-649, ¶ 34. However, we will continue to address the merits in the interests of justice.

                                                    -19-
Case Nos. 12-19-01, 12-19-02


occurred between the trial court and the parties’ attorneys at the August 3, 2018

pretrial hearing. In pertinent part, the discussion reads as follows.

       THE COURT: I believe the first thing we ought to deal with is
       the motion to move the trial date. * * *

       ***

       [LANDOWNERS’ ATTORNEY]: Eminent domain appraisers
       are overworked, and I did not realize when I talked to her that
       she wouldn’t be able to have it done by that trial date. And, she
       told me basically it wasn’t until the end of November sometime in
       December that she could. She does a lot of appraisal work here.
       She does a lot of appraisal work in South Carolina. There’s just
       not that many eminent domain appraisers that can actually come
       in and testify.

       THE COURT: I didn’t know that there were eminent domain
       appraisers.

       [LANDOWNERS’ ATTORNEY]: The ones that have experience
       in eminent domain, yes, Your Honor. The before and after part.

       THE COURT: What’s the different [sic] between a[n] eminent
       domain appraiser and an appraiser?

       [LANDOWNERS’ ATTORNEY]: The difference is, is that
       normally appraisers come in and do what your property is worth
       for the purpose of sale or for a bank mortgage or anything like
       that, but in terms of eminent domain they have to come in and say
       this is the value before, and then come in and say this is the value
       after looking at comps that have to do more aligned to what
       happens after the project comes. So that before and after
       difference is what I would call an eminent domain appraisal
       because they actually have to do two separate appraisals, they do
       the one before and they do the one after. The difference between
       the before and after is the value of the property taken and the
       damages to the residue, if any, and cost to cure, if any. Most


                                         -20-
Case Nos. 12-19-01, 12-19-02


      appraisers, what you and I would call residential or industrial or
      commercial appraisers can’t do that.

      THE COURT: Okay. By the way, and before you answer my
      other questions, I’m just going to tell you in advance I’m going to
      require whoever you’re going to be referring to as an appraiser
      to submit an affidavit to the Court if I do in fact grant the
      continuance. But when was she first contacted?

      [LANDOWNERS’ ATTORNEY]: When was she first contacted?
      I’ve had other cases with her, Your Honor, so it’s hard for me to
      say. Because I mean this case has been looming for a while, but
      this actual trial date and the fact that it would actually occur,
      sometime this summer.

      THE COURT: I’m sorry?

      [LANDOWNERS’ ATTORNEY]: Sometime this summer.

      THE COURT: This summer, okay. This summer started June
      21st, so it wasn’t until after June 21st?

      [LANDOWNERS’ ATTORNEY]: Oh, time passes. I’m not sure,
      Your Honor.

      THE COURT: Well, I can tell you that’s important to me.

      [LANDOWNERS’ ATTORNEY]: Okay.

      THE COURT: Because if knowing when the trial date is, and
      knowing, and I assume that you know something about
      appropriation work beforehand, that you have to have an
      appraiser[,] we have dealt with the issue of appraisal on this case
      for probably four years, and I have always been amazed that you
      all don’t have an appraiser, you’re arguing over their appraisal,
      but you don’t have an appraiser, and I’ve mentioned that before.
      And, I’m just absolutely have been amazed in this whole process
      that you don’t have one. And never have. So, if you’re telling me
      the first time you contact an appraisal [sic] was June, knowing full
      well when the trial date was, somebody has to explain to me why

                                     -21-
Case Nos. 12-19-01, 12-19-02


        it took so long to do that, knowing full well what an appropriation
        case is all about, and you’re telling me that you need a special type
        of appraiser, why did you wait seven months?

        [LANDOWNERS’ ATTORNEY]: Well, part of the reason, Your
        Honor, is we felt like, I’m sorry, we felt like that there, the
        precondition has not been met to file the case. And when
        appraisers like that, they want money up front. And no
        landowner wants to pay that money if they don’t think they’re
        still going to have to go to trial. I mean the issue still looms on my
        mind that there is no right to have an appropriation case here
        because they didn’t do the preconditions for it.18

              So, it’s not like you’re hiring a $500 appraisal or something
        like that, they have to come up with money up front. And I don’t,
        I’m sure that because I have other cases with her, I’ve talked to
        her about it, I don’t know, I’ll have to go back and look and see
        what if anything I put in writing to her, which can go into an
        affidavit to you, so it’s hard for me to tell you exactly when I
        contacted her about this case in particular, the 13 landowners.

        THE COURT: Okay. Have you tried to contact any other
        appraisers?

        [LANDOWNERS’ ATTORNEY]: I have not because the only
        ones that I know of are in Columbus and they’re a lot more money
        than she is.

        ***

        THE COURT: Okay. So, okay, let me get this straight. So no
        one has contacted an appraiser to appraise this property on behalf
        of the landowners at any point in time during this case or the
        previous cases until July of 2018; is that correct?

        [LANDOWNERS’ ATTORNEY]: Well, I know that I’ve talked
        to have talked to her [sic] from time to time because she came here
        in 2011 originally. So it’s hard for me to – She came here to talk

18
   This is in reference to the landowners’ challenge to the notice requirements of R.C. 163.04, which we
rejected in the first assignment of error.

                                                 -22-
Case Nos. 12-19-01, 12-19-02


      to people about the appraisal process and what needed to happen
      a long time ago.

      THE COURT: Okay. As you know, this case is supposed to be
      accelerated on the Court’s docket, that’s why the trial was set.
      When I originally set the trial I didn’t hear anybody tell me that
      that was their problem. It’s a problem on the Court’s schedule,
      because I’m scheduled throughout. Basically, I have one week,
      and I’m telling you if it complies with everybody else’s schedule,
      I’m going to agree to move it a little bit, but I can tell you it’s very
      hard for me to move cases, and you obviously didn’t do your job,
      totally do your job. And, you know, to come to me in August – By
      the way, has she done anything on the case? I mean you contacted
      her, let’s say July, June 21st, has she done anything in the last
      month, in the last six weeks?

      [LANDOWNERS’ ATTORNEY]: I don’t remember if I sent her
      some. I think I sent her all of a list of people that own property
      on the 13, with the TD and parcel numbers, Your Honor.

      THE COURT: Okay. So now you’re telling me that you – she
      has not been formally retained?

      [LANDOWNERS’ ATTORNEY]: No. Everybody has to sign the
      formal retainer thing.

      THE COURT: Okay. So that hasn’t been done?

      [LANDOWNERS’ ATTORNEY]: No. Once she told me she
      couldn’t make the, make the time for that trial, no.

      THE COURT: Has she told you how long it’s going to take her?

      [LANDOWNERS’ ATTORNEY]: It usually takes six to eight
      weeks to do it.

      THE COURT: No, that’s not my question.

      [LANDOWNERS’ ATTORNEY]: Oh, I’m sorry.


                                       -23-
Case Nos. 12-19-01, 12-19-02


      THE COURT: Has she told you how long it would take her to do
      this?

      [LANDOWNERS’ ATTORNEY]: She said the end of, she said
      the end of November she could have them done.

      THE COURT: Okay. If she gets hired today?

      [LANDOWNERS’ ATTORNEY]: Yeah.

      THE COURT: Okay. Did she tell you how long it would take her
      if she had gotten hired in June?

      [LANDOWNERS’ ATTORNEY]: It wouldn’t have made any
      difference in June because she said she had all these other
      appraisals, and she can only do so many a month, because I said
      oh, my God, you’re not going to get it done, and she said there’s
      no way I could have done it in any event if it had come in earlier.

      THE COURT: All right. Any further comments on that issue?

      ***

      [COMMISSIONERS’ ATTORNEY]: Thank you, Judge. As you
      know from our response to the landowners motion for
      continuance, we * * * are still prepared to go to trial October 9th.
      [We] * * * took careful notes during our last telephone conference
      with this Court April 24th. You made it very clear, Your Honor,
      that this trial was going forward October 9th. You said depose
      the appraisers. You reminded the parties that this case was going
      forward. That the Federal Court had not issued any stay. You,
      in your order April 25th denied a motion to stay filed by the
      landowners. You denied their motion to separate trials. You
      indicated that the County must disclose all of their witnesses by
      June 1st. We did that. You indicated that landowners had to
      disclose their witnesses by July 2nd. They served us June 29th
      with a list of over 30 witnesses who intend to testify, including
      their expert witness Debbie Wilcox. So we believed that as of * *
      * June 29, 2018, the landowners [k]new that Debbie Wilcox would
      be the[ir] appraiser, and they knew the trial date was October 9th

                                     -24-
Case Nos. 12-19-01, 12-19-02


      through the 12th. So we believe that this is yet another delay tactic
      by the landowners, and we think that justice delayed is justice
      denied. So we’d ask that the trial go forward.

      THE COURT: * * * Let me ask a couple of other questions
      dealing with matters that are somewhat related.

           A motion in limine has been filed dealing with several issues,
      and I’m going to ask [landowners’ attorney] at this point, do you
      agree that the value that the appraiser is to do is the value as of
      the date of the take?

      [LANDOWNERS’ ATTORNEY]: No, Your Honor.

      THE COURT: Okay. What do you believe the value date is?

      [LANDOWNERS’ ATTORNEY]: Well, sometime in 2018.

      THE COURT: Okay. What leads you to believe that, that being
      an exception as you agree, I assume you would agree that’s
      exception to the normal appropriation rule?

      [LANDOWNERS’ ATTORNEY]: Correct. Normally it’s date of
      possession.

      THE COURT: Why do you believe that’s the case?

      [LANDOWNERS’ ATTORNEY]: Because they don’t get the
      benefit of going back to 2011 when the properties [sic] worth less.
      That’s a trespass from then until now.

      THE COURT: What happens if it was worth more if we’re in
      2008 and the take was 2005, you would be seeking to go back to
      2005?

      [LANDOWNERS’ ATTORNEY]: It would depend, Your Honor.

      ***



                                      -25-
Case Nos. 12-19-01, 12-19-02


        THE COURT: * * * But, and I want to make sure that your
        appraiser doesn’t sit there and say, well, the Judge, you know,
        after she’s already done an appraisal as of today, I want to make
        sure she does an appraisal as of 2012.

        ***

        THE COURT: All right. My only other date that I am available
        to try this case is the week of December 10th. Now also, I assume
        at this point in time that if you want me to deal with the issue that
        you all weren’t prepared with respect to your appraiser, that you
        will agree to the consolidation of all these cases for a trial. Am I
        correct that you will do that?

        [LANDOWNERS’ ATTORNEY]: Your Honor, I – I just don’t
        see how it can be a fair trial for 13 people in four days. I
        understand your thought about the chart and all that, but to go
        out and have a jury view, they’re not going to be able to
        remember, I know it’s not evidence, but what they use it for is to
        help them figure out what’s going on with the property.

        THE COURT: All right. Then I can tell you I’m not going to
        agree to the continuance then. All right. So, now assuming that
        we[’]re going to go forward, I assume you [attorneys for
        commissioners] don’t have any objections to the property owners’
        testifying to the value of their own property.

        [COMMISSIONERS’ ATTORNEY]: That’s right, Your Honor.

        THE COURT: Good.

(Aug. 3, 2018, Tr. at 3-16).19



19
   Following this discussion, the parties transitioned into talking about the jury trial procedure itself,
beginning with jury questionnaires and peremptory challenges. Next, the trial court discussed a potential
option for the trial to have the jurors deliberate after the evidence was presented with respect to each
individual property. Landowners’ counsel specifically stated that she thought that option would be fair for
the landowners. To emphasize this point, the trial court stated that the parties should agree as to how they
wanted to try the cases, with the understanding that they would be consolidated, and prepare an entry
regarding that procedure.

                                                   -26-
Case Nos. 12-19-01, 12-19-02


       {¶39} On appeal, landowners now argue that the trial court improperly made

a “quid pro quo” demand toward the end of the preceding dialogue by asking if

landowners were going to withdraw their objection to the consolidation of trials if

the trial court granted a continuance. Landowners argue that the trial court’s request

that they make a concession to waive a right they felt they were entitled to was

arbitrary, unjustified, and warrants reversal in this matter.

       {¶40} Commissioners counter by arguing that the trial court’s reasoning in

denying the motion to continue the trial date, when viewed in its entirety rather than

focusing on one line, shows that denying the motion to continue the trial date was

well within the trial court’s discretion and that the trial court did not actually make

some specific “quid pro quo” offer. The commissioners contend that denying the

continuance was reasonable here where there was no “constitutional” right to

separate individual jury trials and where landowners had failed for years to obtain

an appraiser.

       {¶41} After reviewing the record, we agree with the commissioners and can

find no reversible error here. Early in the August 3, 2018, pretrial hearing, the trial

court seemed amenable to potentially moving the trial date if it was convenient for

the trial court and the parties. However, upon inquiring regarding the diligence of

the landowners to obtain an appraiser, the trial court was less receptive to a

continuance.


                                         -27-
Case Nos. 12-19-01, 12-19-02


        {¶42} Landowners had been contesting the valuations of the commissioners’

appraisals for years without ever obtaining their own appraisals specifically

regarding the take.20 The landowners even had numerous months from the filing of

this new appropriation action to secure appraisals, yet they failed to do so. In

addition to how late the appraiser was contacted, the trial court was further baffled

by the fact that at the time of the hearing the appraiser had still not been officially

retained. The landowners would have to agree to the appraiser, and there is no

indication in the record that they definitely would. We also have no actual evidence

in the record beyond counsel’s statements that their desired appraiser actually could

have the appraisals done if the trial date was moved.

        {¶43} Moreover, the trial court had to deal with the fact that landowners

wanted their appraiser to potentially appraise the land as of a different “date of take,”

even assuming that all of the landowners agreed to the appraiser in the first place.

Furthermore, the trial court did not prevent landowners from contacting a different

appraiser, such as one of those mentioned from Columbus, to see if that appraiser

could have had the work done by the scheduled trial date.

        {¶44} As the trial court emphasized, appropriation cases are accelerated on

a trial court’s docket. Clear orders had been issued to prepare for trial on October


20
  The Weis family did have an appraisal conducted of their property before the take, and the appraised
amount was the same as that reached by the commissioners’ appraiser ($90,000). Despite having this
appraisal done, the Weis family did not do an “after” taking appraisal with the same appraiser to compare
any loss in value.

                                                 -28-
Case Nos. 12-19-01, 12-19-02


9, 2018. Under the facts and circumstances of this case, we cannot find that there

was reversible error here in denying the motion to continue. We do not accept the

argument of the landowners that some impermissible “quid pro quo” was attempted

here by the trial court. Therefore, landowners’ fourth assignment of error is

overruled.

                             Fifth Assignment of Error

       {¶45} In landowners’ fifth assignment of error, they argue that the trial court

erred when it excluded their rebuttal witness, Robert Hunt.

                                 Standard of Review

       {¶46} We review a trial court’s determination to bar a rebuttal witness under

an abuse of discretion standard. See Stevens v. S.W.L.H.S. Invest. Partners, 6th Dist.

Lucas No. L-15-1129, 2017-Ohio-415, ¶ 62, appeal not allowed 151 Ohio St.3d

1425, 2017-Ohio-8371.

                                      Analysis

       {¶47} After the landowners and the commissioners had presented their cases-

in-chief in this matter, the landowners attempted to call a rebuttal witness. A sidebar

was then held between the parties’ attorneys and the trial court, wherein the trial

court asked who the rebuttal witness was, and what he or she was going to testify

about. Landowners identified Robert Hunt as their rebuttal witness, indicating that

he was an appraiser, but he had not appraised these properties specifically. Rather,


                                         -29-
Case Nos. 12-19-01, 12-19-02


Hunt was going to testify regarding a different appraisal methodology for valuing

land, thus undermining or potentially contradicting the commissioners’ appraiser.

       {¶48} The trial court inquired as to why the witness had not been identified

previously, and landowners indicated that he was a “rebuttal-only” witness. The

trial court stated, “That’s not a rebuttal witness, and you know that. * * * It’s an

expert witness on your behalf. * * * He’s rendering an opinion on the testimony of

the report that you had for seven years.” (Tr. at 396). The trial court then further

inquired as to what specifically the landowners claimed to be rebutting with Hunt’s

testimony, and landowners’ counsel stated that Hunt was going to indicate how he

valued the property frontage abutting the roadway in a different manner than how

the commissioners’ appraiser had valued it. After hearing this argument, the trial

court excluded Hunt’s testimony, but allowed his testimony to be proffered.

       {¶49} On appeal, landowners argue that the trial court erred by preventing

the testimony from their “rebuttal” witness because they contend that generally

rebuttal witnesses do not have to be disclosed prior to trial, citing Phung v. Waste

Mgt., Inc, 71 Ohio St.3d 408 (1994), in support of their argument.

       {¶50} Commissioners respond by arguing that the trial court’s exclusion of

Hunt’s testimony was proper because Hunt was going to be testifying in an expert

capacity, which has different rules with respect to disclosure than those of normal

rebuttal witnesses discussed in Phung, making it inapplicable here. In addition,


                                       -30-
Case Nos. 12-19-01, 12-19-02


commissioners argue that Hunt was not a proper rebuttal witness because he was

going to essentially present his own valuation methodology.           Commissioners

contend that this new or different methodology should have been presented in

landowners’ case-in-chief, not in rebuttal.

       {¶51} After reviewing the record, we agree with the arguments of the

commissioners. Given that Hunt wanted to present his own methodology as to

valuation, he should have been called in landowners’ case-in-chief to establish their

version of the case.

       {¶52} Moreover, as he was offering testimony beyond that of a lay witness,

that testimony being specific ways of valuing property frontage versus the rest of

the property, his disclosure would have been necessary in this matter as suggested

by the commissioners.

       {¶53} Because of these factors, at the very least, we cannot find that the trial

court abused its discretion in this matter by preventing Hunt’s testimony. For these

reasons, landowners’ fifth assignment of error is overruled.

                                     Conclusion

       {¶54} For the foregoing reasons landowners’ assignments of error are

overruled and the judgments of the Putnam County Common Pleas Court are

affirmed.

                                                                Judgments Affirmed
ZIMMERMAN, P.J. and WILLAMOWSKI, J., concur.

                                         -31-
