[Cite as Cuyahoga Cty. Bd. of Commrs. v. McNamara, 2011-Ohio-3066.]


         Court of Appeals of Ohio
                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA


                            JOURNAL ENTRY AND OPINION
                                     No. 95833


                CUYAHOGA COUNTY BOARD OF
                     COMMISSIONERS
                                               PLAINTIFF-APPELLANT

                                                  vs.

                       JOHN MCNAMARA, ET AL.
                                               DEFENDANTS-APPELLEES



                                       JUDGMENT:
                                        AFFIRMED


                                Civil Appeal from the
                       Cuyahoga County Court of Common Pleas
                                  Probate Division
                             Case No. 09-ADV-0149087

       BEFORE:           Sweeney, J., Kilbane, A.J., and Jones, J.

       RELEASED AND JOURNALIZED:                              June 23, 2011

ATTORNEYS FOR APPELLANT
William D. Mason, Esq.
Cuyahoga County Prosecutor
By: Dale F. Pelsozy, Esq.
Assistant County Prosecutor
Eighth Floor, Justice Center
1200 Ontario Street
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEES

Warner Mendenhall, Esq.
190 North Union Street, Suite 201
Akron, Ohio 44304

Alyssa M. Keeny, Esq.
P.O. Box 39631
Solon, Ohio 44139




JAMES J. SWEENEY, J.:

       {¶ 1} Plaintiff-appellant Cuyahoga County Board of Commissioners (“the County”)

appeals a $13,600 damage award in this appropriation action seeking a temporary easement on

the front yard of defendants-appellees’ John and Mary McNamara’s (“the McNamaras”)

residential property.   After reviewing the facts of the case and pertinent law, we affirm.

       {¶ 2} The McNamaras own and reside on property located at 35750 Bainbridge Road

in Solon.   In the spring of 2005, the McNamaras learned that an $11.8 million restoration

project was being planned for Bainbridge Road that would require the County, in conjunction

with the City of Solon, to take a temporary easement on the McNamaras’ property.              The
scope of the easement was “100 foot of frontage * * * coming back approximately 17 feet,”

where the front yard met the road.     The purpose of the easement was to create a temporary

two-lane roadway to divert traffic during construction, which was estimated to continue for

two years.    To accommodate the construction project, a row of ten mature trees that lined the

McNamaras’ property at the site of the temporary easement had to be removed.            At the end

of the project, the McNamaras re-acquired their property in its entirety, albeit without the ten

trees.

         {¶ 3} On July 21, 2009, the County filed a petition for appropriation against the

McNamaras, alleging that the parties were unable to agree on the amount of fair compensation

to be paid to the McNamaras for the taking.               The County’s complaint valued the

compensation and damages at $3,100.         On June 22, 2010, a jury awarded the McNamaras
                                        1




$3,600 as compensation for the temporary easement and $10,000 for damage to the residual

property.

         {¶ 4} The County appeals and raises two assignments of error for our review.

         {¶ 5} “I.   “The court erred in instructing the jury as to ‘damage to the residue.’”

         {¶ 6} A court must correctly state the law when instructing the jury; otherwise, it is

“within the trial court’s discretion to determine the content of a jury instruction.”    Baker v.



         At trial, however, the County’s expert opined that the value of compensation and damages
         1

due                   the                 McNamaras                    was                 $4,000.
Cleveland, Cuyahoga App. No. 93952, 2010-Ohio-5588, ¶28.              However, “[i]f the jury

instruction incorrectly stated the law, then a de novo review must be performed to determine

whether the incorrect jury instruction probably misled the jury in a matter materially affecting

the complaining party’s substantial rights.”   Id. (citing Kokitka v. Ford Motor Co. (1995), 73

Ohio St.3d 89, 652 N.E.2d 671).

       {¶ 7} The proper measure of damages to be assessed by a jury in an appropriation

action is twofold: “the compensation for the property appropriated and damages, if any, to the

residue * * *.”   R.C. 163.14.    In other words, a property owner will be compensated for the

land taken and for damage to the land not taken.

       {¶ 8} Compensation is based on the fair market value of the land taken, which

includes   the “rental” of a temporary easement.    See City of Norwood v. Forest Converting

Co. (1984), 16 Ohio App.3d 411, 415, 476 N.E.2d 695.         Damages, on the other hand, are

based on injuries to the remaining land resulting from the taking. “Damage to the residue is

measured by the difference between the fair market values of the remaining property before

and after the taking.   When determining the fair market value of the remaining property

before and after the taking, those factors that would enter into a prudent businessperson’s

determination of value are relevant.”    Proctor v. NJR Properties, L.L.C., 175 Ohio App.3d

378, 2008-Ohio-745, 887 N.E.2d 376, ¶15.
       {¶ 9} In the instant case, the court defined terms and instructed the jury, in pertinent

part, as follows:

       {¶ 10} “Compensation: Compensation is payment of the fair market value of the

property interest taken.     Residue: Remainder of the real property owned by the Defendant

after severance of the property interest taken.   Damages: Damages are the loss in value of the

residue of the property because of its severance from the property taken.

       {¶ 11} “A temporary easement is the right to use an area of land for a limited time and

limited purpose.      The measure of compensation for a temporary taking is the fair market

value of the loss of use of the property taken.     The fair market value is the fair rental value

for a two-year period.

       {¶ 12} “In addition to compensation for the property taken, the owner is entitled to any

decrease in the fair market value to the residue, or remaining land, that is a direct result of the

appropriation.      If the remaining land is less valuable because of the appropriation, then you

must consider such injury and determine the amount of such decrease in the fair market value

caused by the appropriation.      This will be the amount awarded for damage to the residue.”

       {¶ 13} In the instant case, the County argues that the court’s instructions were

erroneous, and “[t]he appropriate standard to be applied is a comparison of the value of the

property with trees compared to the value of the property without the trees.”      We find this to

be a correct statement of law regarding damages to the residue.       However, the County does
not identify the difference between its proposed standard and the jury instructions given by the

court.   Upon review, we find the standards are substantively the same and conclude that the

court correctly stated the law when instructing the jury regarding the measure of compensation

and damages in this appropriation case.

         {¶ 14} Although the County’s assignment of error purports to challenge the jury

instructions, the County extensively argues that “[t]he only issue to be considered is the

contributory value of the trees as improvements to the real estate * * * [and] one cannot

consider the value of the trees separately.”    The County cites no legal authority to support the

proposition that “contributory value” is a consideration in determining an appropriation award.

 Without deciding this issue, we note that the jury was not instructed to consider, nor did the

jury award damages for, the value of the trees separately.         As the merits of the County’s

argument are unclear, we review whether the $13,600 award to the McNamaras is supported

by competent and credible evidence in the record.        See Proctor v. Hall, Lawrence App. Nos.

05CA03 and 05CA08, 2006-Ohio-2228, ¶39.

         {¶ 15} At trial, the McNamaras testified about the value the trees added to their

property.    Mary testified that they “bought the house with the trees, because we knew it was a

busier street, but the trees afforded us protection from all of the things that [come] with a busy

street. * * * so without the trees there, it’s not what it used to be.   It’s not pleasant.   I worry

about the kids playing in the front yard * * *.”     The trees acted as a “screen” against a street
light and headlights, “muffled the noise” from traffic on Bainbridge Road, shaded and cooled

down the front yard, and blocked the view of the traffic.    Without the trees, the McNamaras

“don’t want to use the front yard * * * for any kind of enjoyment.”               John

McNamara testified that the trees, which stood taller than his house, provided privacy and

safety, “because they were a physical barrier to any errant vehicles coming off the road.

Now there’s nothing; a car can go right into my house.       That was part of the consideration

when we bought the home, is that we knew there was some traffic here, but it had these big

trees, so it would be kind of a safety thing.”     John McNamara also testified that the trees

were pretty, but now that “everything is cut down, * * * it’s an ugly thing to see every day I

come home.     It’s permanent damage.”

       {¶ 16} Mary McNamara testified that, in her opinion, the value of their property

decreased by $40,000 because of the loss of the trees.    Additionally, she testified that $40 per

day would be fair compensation for the temporary easement across their front lawn.

       {¶ 17} Real estate appraiser Eric Kirk testified as an expert witness for the County.

Kirk appraised the County’s taking of the McNamaras’ property and determined that $800 was

fair compensation for the temporary easement, based on 1,694 square feet at $2.30 per square

foot and a “capitalization rate” for a two-year period.

       {¶ 18} Kirk also determined that there was no residual damage to the remaining

property resulting from the taking.    First, because “[t]he property sits back a considerable
amount and defers any type of negative impact caused by headlights.”          And second, in Kirk’s

opinion, the taking of site improvements, such as trees, caused no damage to the residue of the

property, because the trees added “nothing beyond the contributory value.”

          {¶ 19} Nonetheless, Kirk “determined that there is a specific loss attributable to just the

trees.”    Kirk based his opinion on ten pine trees of various sizes being removed from the

McNamaras’ property.         Kirk testified that the “value [of the land] before the take totaled

$137,400.       And the value after the take, including the diminished trees and site

improvements, totaled $134,200.”         Kirk opined that the McNamaras were due $3,200 “for

the loss of site improvements.”        Although the County argues that these are not residual

damages, it presented evidence of “the difference between the fair market values of the

remaining property before, and after, the taking,” which is the formula for calculating residual

damages.      City of Englewood v. Wagoner (1987), 41 Ohio App.3d 324, 326, 535 N.E.2d

736.

          {¶ 20} Regardless of nomenclature, the County argued that the McNamaras were due

$3,200 plus $800 for “rental” of the temporary easement, for total compensation and damages

of $4,000.

          {¶ 21} The jury awarded the McNamaras $3,600 as compensation for the temporary

easement.      The evidence in the record regarding the value of this taking ranged from $800 to

approximately $30,000 ($40 per day for two years).         The jury also awarded the McNamaras
$10,000 for damages to the residue.       The evidence in the record regarding the difference in

value of the property with and without the trees ranged from $3,200 to $40,000.

       {¶ 22} We find that the $13,600 award in the case at hand is supported by competent

and credible evidence in the record.       See In re Appropriation of Easements for Highway

Purposes (1961), 172 Ohio St. 524, 526, 178 N.E.2d 787 (affirming a jury verdict in an

appropriation case when the “total compensation and damages awarded were well within the

range of testimony on those subjects”).     Additionally, as stated earlier in this opinion, we find

no error in the jury instructions.   The County’s first assignment of error is overruled.

       {¶ 23} In the County’s second and final assignment of error, it argues as follows:

       {¶ 24} “II.    “The court erred in allowing Appellees’ testimony of value as it did not

give a before and after value and did [sic].”

       {¶ 25} The Ohio Supreme Court has held that “much must be left to the discretion of

the trial court in the matter of admitting or rejecting evidence relating to the value of

appropriated property.     Evidence of this character generally goes to the weight of the

evidence rather than to its admissibility.”     In re Ohio Turnpike Comm. (1955), 164 Ohio St.

377, 388, 131 N.E.2d 397.

       {¶ 26} In general, expert witness testimony is necessary to determine the fair market

value of property.    See, e.g., N. Olmsted Bd. of Educ. v. Cuyahoga Cty. Bd. of Revision

(1990), 54 Ohio St.3d 98, 561 N.E.2d 915.          However, the “owner-opinion” rule presumes
that owners of personal or real property are “generally quite familiar with their property and

its value,” and are “permitted to testify on value by virtue of their ownership alone.”   Tolkes

& Son, Inc. v. Midwestern Indemn. Co. (1992), 64 Ohio St.3d 621, 625, 605 N.E.2d 936.

        {¶ 27} Owner-opinion testimony is an estimate of the property’s value and is

admissible “although [the owner’s] knowledge on the subject is not such as would qualify him

to testify if he were not the owner.”   Smith v. Padgett (1987), 32 Ohio St.3d 344, 348, 513

N.E.2d 737 (internal citations and emphasis omitted).     Additionally, the Padgett Court held

that “[t]he weight accorded to such testimony is, of course, a matter to be determined by the

trier of fact.”   Id.

        {¶ 28} In the instant case, the County argues that Mary McNamara’s testimony that the

loss of trees resulted in a $40,000 decrease to her property value was improperly admitted at

trial, because there is a “requirement of the inclusion of pre-appropriation and

post-appropriation values when an opinion is given regarding the damages to the residue.”

        {¶ 29} In Masheter v. Kebe (1973), 34 Ohio App.2d 32, 36, 295 N.E.2d 429, this court

held that when an expert witness testifies about the valuation of property in an appropriation

case, it is improper to give an “opinion of the amount of damages arising from an

appropriation of property without giving an opinion as to the value of the property before and

after the appropriation * * *.”
       {¶ 30} In light of the Ohio Supreme Court’s rulings establishing a difference between

expert testimony and owner-opinion testimony regarding property value, courts have held the

admissibility of owner-opinion testimony to less stringent standards. Tolkes & Son; Padgett.

 The Second District Court of Appeals of Ohio held that property owner Jones’s testimony

“that his property was worth $11,000 less as a result of the removal of the redbud trees” was

properly admitted as “evidence of the diminution in market value.”      Jones v. Dayton Power

& Light Co. (Dec. 14, 1994), Greene App. No. 94-CA-49. “Because the ‘owner-opinion’

rule assumes that the owner is so closely acquainted with the property as to stay abreast of its

market value, such testimony does not require a specific foundation.”    Id.   See, also, Walser

v. Dominion Homes, Inc. (June 11, 2001), Delaware App. No. 00-CA-G-11-035; Ohio Power

Co. v. Ogle, Hocking App. Nos. 09CA1 and 09AP1, 2009-Ohio-5953; Amore v. Ohio

Turnpike Comm., Summit App. No. 25227, 2001-Ohio-1903.

       {¶ 31} Accordingly, we find no abuse of discretion in the court’s allowing Mary

McNamara to testify that, in her opinion, her property lost value because the County removed

a row of trees from her front lawn.   The County’s second assignment of error is overruled.

       Judgment affirmed.




       It is ordered that appellees recover from appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.
     It is ordered that a special mandate be sent to said court to carry this

judgment into execution.

     A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.


JAMES J. SWEENEY, JUDGE

MARY EILEEN KILBANE, A.J., and
LARRY A. JONES, J., CONCUR
