[Cite as Wray v. Gahm Properties, Ltd., 2018-Ohio-50.]




                             IN THE COURT OF APPEALS OF OHIO
                                FOURTH APPELLATE DISTRICT
                                      SCIOTO COUNTY

Jerry Wray, Director,                                    :   Case No. 16CA3775
Ohio Department of Transportation,

        Plaintiff-Appellant,                             :

        v.                                               :   DECISION AND
                                                             JUDGMENT ENTRY
Gahm Properties, Ltd., et al.,                           :

        Defendants-Appellees.                            :   RELEASED: 01/04/2018


                                            APPEARANCES:

Michael DeWine, Ohio Attorney General, and William J. Cole and Marc A. Sigal,
Assistant Attorneys General, Columbus, Ohio for appellant.

Michael Braunstein, Clinton P. Stahler, and Matthew L. Strayer, Columbus, Ohio for
appellees.

Harsha, J.
        {¶1}    The Director, Ohio Department of Transportation (ODOT) appeals the trial

court’s entry awarding costs and expenses to Gahm Properties, Ltd., in an appropriation

action. ODOT notes that a property owner is not entitled to recover costs and expenses

unless the property was used for agricultural purposes, and contends there was no

evidence of such use here. Gahm Properties argues it presented evidence that it

harvested timber, which is an agricultural use of the property, so the trial court properly

awarded it costs and expenses.

        {¶2}    We find that the plain language of the statute is unambiguous.

“Agriculture” is defined to include “timber,” which means “growing trees or their wood.”
Scioto App. No. 16CA3775                                                                  2


Gahm Properties presented competent, credible evidence that it harvested timber on

the property. Thus we affirm the trial court’s judgment.

                        I. FACTS AND PROCEDURAL BACKGROUND

       {¶3}   ODOT filed a petition to appropriate property owned by Gahm Properties.

At trial the parties presented expert witness testimony and appraisal reports concerning

the value and use of the property. The parties agreed that the property is zoned

agricultural and that the Scioto County Auditor identifies the property as woodland,

pasture and tillable land. The property originally had a farmhouse and three large barns

that were subsequently removed. Gahm Properties’ expert witness, appraiser Richard

Vannatta, prepared an appraisal that described the property and improvements stating:

       Natural site improvements consist of various forms of natural growth, such
       as deciduous trees and herbage. However, for the most part, the owner
       has harvested the heavily wooded areas.

ODOT’s expert witness, appraiser Lance Brown, responded on cross-examination that

he was unaware that Gahm Properties harvested and sold timber from the property, but

it “doesn’t surprise” him. On redirect, Brown was asked, “Is the property used for

agricultural purposes?” and he answered, “No.”

       {¶4}   The jury returned a verdict awarding Gahm Properties $330,419 as

compensation for ODOT’s taking. Gahm Properties filed a motion for an award of costs

and expenses under R.C. 163.21(C)(2). ODOT opposed the motion and requested

discovery and an evidentiary hearing. The trial court initially set the matter for a hearing

and ordered Gahm Properties to respond to ODOT’s discovery requests. However,

ODOT later asked the court to convert the hearing to a telephonic status conference to

allow it time to complete discovery. The trial court agreed to hold a telephonic status
Scioto App. No. 16CA3775                                                                3


conference. After the status conference, and without holding an evidentiary hearing, the

trial court awarded Gahm Properties costs and expenses totally $32,224. Neither a

transcript nor an App.R. 9(C) statement of this telephonic conference is part of the

record.

                                 II. ASSIGNMENT OF ERROR

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


      I. THE TRIAL COURT ERRED IN AWARDING COSTS AND EXPENSES
      UNDER R.C. 163.21(C)(2). (R. 89.)


                                 III. LEGAL ANALYSIS

      {¶6}   The dispositive issue in this appeal is whether the land appropriated by

ODOT from Gahm Properties “is land used for agricultural purposes as defined in [R.C.]

303.01 or 519.01” so to entitle the landowner to costs and expenses, including

attorney’s and appraisal fees. R.C. 163.21(C)(2).

                                 A. Standard of Review
      {¶7}   ODOT’s contention that the trial court’s judgment is erroneous because

there is no evidence the property was used for agricultural purposes challenges the

manifest weight of the evidence. “We will not reverse a trial court’s judgment as against

the manifest weight ‘if it is supported by some competent, credible evidence.’ ” See

Hardert v. Neumann, 4th Dist. Adams No. 13CA977, 2014-Ohio-1770, ¶ 18, quoting

Nolen v. Rase, 4th Dist. Scioto No. 13CA3536, 2013-Ohio-5680, ¶ 9, citing Eastley v

Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 14. When we review

whether a trial court's decision is against the manifest weight of the evidence, we weigh

the evidence and all reasonable inferences, consider the credibility of witnesses and
Scioto App. No. 16CA3775                                                                    4


determine whether in resolving conflicts in the evidence, the factfinder clearly lost its

way and created such a manifest miscarriage of justice that we must reverse the

judgment. Martin v. Jones, 2015-Ohio-3168, 41 N.E.3d 123, ¶ 68 (4th Dist.). We will

reverse a judgment as being against the manifest weight of the evidence only in the

exceptional case where the evidence weighs heavily against the judgment. Pinkerton v.

Salyers, 4th Dist. Ross No. 13CA3388, 2015-Ohio-377, ¶ 18.

       {¶8}   This case also involves statutory construction, which raises a question of

law that we review de novo. See Cleveland Clinic Found. v. Cleveland Bd. of Zoning

Appeals, 141 Ohio St.3d 318, 2014-Ohio-4809, 23 N.E.3d 1161, ¶ 25, quoting Lang v.

Ohio Dept. of Job & Family Servs., 134 Ohio St.3d 296, 2012-Ohio-5366, 982 N.E.2d

636, ¶ 12 (“ ‘A question of statutory construction presents an issue of law that we

determine de novo on appeal’ ”); see also Mollette v. Portsmouth City Council, 179 Ohio

App.3d 455, 2008-Ohio-6342, 902 N.E.2d 515, ¶ 20 (4th Dist.), quoting Covert v. Ohio

Aud. of State, 4th Dist. Scioto No. 05CA3044, 2006-Ohio-2896 at ¶ 18 (“ ‘Generally,

statutory construction is a legal issue that appellate courts review de novo’ ”).

                                 B. Statutory Construction

       {¶9}   ODOT contends that the statute defining “agriculture” to include “timber” is

ambiguous. ODOT argues that “timber” is an undefined term in R.C. 303.01 and R.C.

519.01 (the zoning statutes) and for guidance we should look to R.C. 5713.30 (current

agricultural use valuation “CAUV” statute), which defines “land devoted exclusively to

agricultural use” as land that is “devoted exclusively to * * * the production for a

commercial purpose of timber.” ODOT argues that the limited references in the record
Scioto App. No. 16CA3775                                                                     5


“suggest that any clearing or harvesting of trees from Gahm’s property was a one-time

event, * * * not part of an ongoing commercial or business activity.”

       {¶10} Our primary concern when construing statutes is legislative intent. State v.

Wolfe, 4th Dist. Pike No. 16CA875, 2017-Ohio-6876, ¶ 16, citing State v. J.M., 148 Ohio

St.3d 113, 2016-Ohio-2803, 69 N.E.3d 642. In determining that intent we first look to the

plain language of the statute. Id. Terms that are undefined by statute are given their

plain, common, and ordinary meaning. State v. Anderson, 138 Ohio St.3d 264, 2014-

Ohio-542, 6 N.E.3d 23, ¶ 46, citing R.C. 1.42; State v. Erskine, 2015-Ohio-710, 29

N.E.3d 272, ¶ 26 (4th Dist.). When a statute's language is clear and unambiguous, we

apply it as written without interpreting or construing it. Wolfe at ¶ 16. “It is a cardinal rule

of statutory construction that where the terms of a statute are clear and unambiguous,

the statute should be applied without interpretation.” Wilson v. Lawrence, 150 Ohio

St.3d 368, 2017-Ohio-1410, 81 N.E.3d 1242, ¶ 11 (2017).

       {¶11} R.C. 163.21(C)(2) provides:


       * * * the court shall enter judgment in favor of the owner for costs and expenses,
       including attorney’s and appraisal fees, that the owner actually incurred only if
       the property being appropriated is land used for agricultural purposes as defined
       in section 303.01 or 519.01 of the Revised Code * * * and the final award of
       compensation is more than one hundred fifty per cent of the agency’s good faith
       offer * * *.
       {¶12} ODOT concedes that the final award was more than one hundred fifty

percent of its offer and that the only dispute is whether the property was “land used for

agricultural purposes” as defined in R.C. 303.01 and 519.01, which have identical

definitions of “agriculture.” Both statutes also include the “marketing of agricultural

products” in the definition of “agriculture” and the plain meaning of agriculture includes
Scioto App. No. 16CA3775                                                                    6

“the marketing of the resulting products.” See generally https://www.merriam-

webster.com/dictionary/agriculture.

       {¶13} Under these statutes, “agriculture” is defined to include “timber,” which

means “growing trees or their wood.” See generally https://www.merriam-

webster.com/dictionary/timber. Because the plain and ordinary meaning of “timber” is

unambiguous, we apply it without interpretation. We do not need guidance from other

statutory provisions as ODOT argues. The dispositive test here is whether Gahm

Properties used its property for agricultural purposes, i.e., timber, by growing trees or

their wood and harvesting them for sale.

       {¶14} Gahm Properties introduced evidence that it grew trees and harvested

them. For example, without objection at trial it introduced an appraisal report that

explicitly stated that “the owner [i.e., Gahm Properties] has harvested the heavily

wooded areas” of the property. And the director’s appraiser testified on cross-

examination that it “doesn’t surprise” him that Gahm “sold the timber.” Although the

appraiser later testified in a conclusory fashion on redirect examination that the property

was not used for agricultural purposes, the trial court was free to credit his prior

testimonial evidence as well as the landowners’ appraisal report to conclude that Gahm

Properties harvested the heavily wooded area of its property and sold the timber it

harvested. See Wootten v. Culp, 2017-Ohio-665, 85 N.E.3d 198, ¶ 20 (4th Dist.) (the

weight and credibility of the evidence are to be determined by the trier of fact, who is

free to believe all, part, or none of any witness’s testimony).

       {¶15} Under these circumstances the trial court’s award of costs and expenses

to Gahm Properties under R.C. 163.21(C)(2) was not against the manifest weight of the
Scioto App. No. 16CA3775                                                                     7


evidence and was consistent with the plain language of the statute. We overrule

ODOT’s assignment of error and affirm the judgment of the trial court.

                                    IV. CONCLUSION

       {¶16} Gahm Properties is entitled to the award of costs and expenses under

R.C. 163.21(C)(2) because the record contains competent and credible evidence from

which the trial court could form a firm belief that the property was used for agricultural

purposes, i.e, timber, by growing and harvesting trees or their wood. We affirm the

judgment of the trial court.

                                                                  JUDGMENT AFFIRMED.
Scioto App. No. 16CA3775                                                                  8


                                   JUDGMENT ENTRY


         It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the
costs.

         The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing the Scioto
County Court of Common Pleas to carry this judgment into execution.

       Any stay previously granted by this Court is hereby terminated as of the date of
this entry.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.

Hoover, J.: Concurs in Judgment and Opinion.
Abele, J.: Dissents.

                                   For the Court


                                   BY: ________________________________
                                       William H. Harsha, Judge




                                 NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.
