F DD JUL CLERK OF COURT SUPREME COURT OF OHIO IN THE SUPREME COURT OF OHIO. Case No

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1 IN THE SUPREME COURT OF OHIO Case No NANCY ROUDEBUSH WHITNEY AND THOMAS R. ROUDEBUSH, etal. Appellants vs. BOARD OF COMMISSIONERS OF HAMILTON COUNTY, OHIO Appellee MEMORANDUM OF APPELLEE BOARD OF COMMISSIONERS OF HAMILTON COUNTY. OHIO AGAINST JURISDICTION JOSEPH T. DETERS PROSECUTING ATTORNEY HAMILTON COUNTY, OHIO John R. Meckstroth, Jr. ( P) Assistant Prosecuting Attorney Hamilton County, Ohio 230 E. 9`" Street, Suite 4000 Cincinnati, Ohio DDN: (513) FAX: (513) ATTORNEYS FOR APPELLEE BOARD OF COMMISSIONERS OF HAMILTON COUNTY, OHIO Thomas R. Roudebush 9840 Harrison Avenue Harrison, Ohio DDN: (513) APPELLANT PRO SE F DD JUL CLERK OF COURT SUPREME COURT OF OHIO

2 I. TABLE OF CONTENTS Page II. INTRODUCTION III. STATEMENT OF THE CASE AND FACTS IV. ARGUMENT IN SUPPORT OF PROPOSTION OF LAW APPELLANT'S PROPOSITION OF LAW THE COURT BELOW ERRED ENTERING A JUST COMPENSATION JURY VERDICT WHICH WAS AGAINST ANY REASONABLE EVIDENCE. RESTATEMENT BY APPELLEE OF THE PROPOSITION OF LAW... 5 A JURY VERDICT IN AN APPROPRIATION CASE WHICH IS WITHIN THE RANGE OF THE FAIR MARKET VALUES PRESENTED BY THE EXPERT WITNESSES WILL NOT BE SET ASIDE AS AGAINST THE WEIGHT OF THE EVIDENCE. Restatement By Appellee Of The First Issue Presented For Review And Argument... 5 In An Appropriation Case The Appellate Court Will Not Reverse A Jury Verdict Which Is Supported By Some Competent And Credible Evidence Presented At Trial. Authorities Cited: C.E. Morris Co. v. Foley Construction Co. (1978) 54 Ohio St.2d N.E.2d Hilliard v. First Indus. L.P. (2005) 165 Ohio App.3d 335, 348, 846 N.E.2d State v. Thompkin (1977) 78 Ohio St.3d 380, 383, 678 N.E.2d Wray v. Deters (1996) 111 Ohio App. 3d 107, 113, 675 N.E.2d R.C

3 Restatement By Appellee Of The Second Issue Presented For Review And Argument... 7 An Award For Compensation For Property Taken In An Appropriation Action Is The Fair Market Value Of The Land At The Time Of Taking. Authorities Cited: Article I Section 19 of the Ohio Constitution Fifth Amendment to the United States Constitution R.C. Chapter Hilliard v. First Industrial, L.P. (2004) 158 Ohio App.3d 792, 796, 822 N.E.2d Masheter v. Kebe (1976) 49 Ohio St.2d 148, 153, 359 N.E.2d Norwood v. Forest ConvertingCo. (1984) 16 Ohio App.3d 411, 415, 476 N.E.2d Restatement By Appellee Of The Third Issue Presented For Review And Argument... 9 The Verdict Of The Jury Herein Is Based On Competent And Reliable Evidence. Authorities Cited: Hilliard v. First Industrial, L.P. (2004) 158 Ohio App.3d 792, 796, 822 N.E.2d Masheter v. Kebe (1976) 49 Ohio St.2d 148, 153, 359 N.E.2d Board of County Commissioners of Hamilton County v. Thomas E. Shuh (November 1, 2004) Court of Common Pleas, Hamilton County, Ohio Case No.A ,11 Wray v. Stvartak (1997) 121 Ohio App.3d 462, 475, 675 N.E.2d ii-

4 V. EXPLANATION OF WHY THIS CASE IS NOT A CASE OF PUBLIC OR GREAT INTEREST AND DOES NOT INVOLVE A SUBSTANTIAL CONSTITUTIONAL QUESTION V1. CONCLUSION VII. CERTIFICATE OF SERVICE

5 II. INTRODUCTION Appellant filed a timely pro se discretionary Notice of Appeal to the Ohio Supreme Court. Along with the Notice of Appeal a document captioned as a Memorandum in Support of Jurisdiction was filed as required by S- Ct.R. III, Section 1. However, as Appellant acknowledges in his Memo to the Court, the Memorandum includes only as an attachment the Appellant's Brief as filed in the First Appellate District. The form of the Memorandum is not consistent with the requirements in the S Ct R. III, Section 1. In particular the requirement for a thorough explanation of why a substantial constitutional question is involved or why the case is of public or great general interest is missing. In its response herein Appellee will attempt to address the legal issues raised by Appellant in a form consistent with the Court Rules. III. STATEMENT OF THE CASE AND FACTS This case involves the valuation of real property in an appropriation for roadway improvements. Appellee Board of County Commissioners of Hamilton County, Ohio filed a Complaint on October 2, 2002 depositing the appraised value with the Clerk of Courts pursuant to R.C (B). Named as Defendants were all the parties having an interest in the subject property including the three fee simple owners: Nancy Roudebush Whitney, Constance Roudebush Loftus and Appellant Thomas R. Roudebush. The overall subject property consists of approximately 20 unimproved acres located on Harrison Avenue near the Dry Fork Road interchange of 1-74 in western Hamilton County. It is primarily zoned for agricultural use with a small portion zoned "E" Commercial. Appellant Thomas R. Roudebush and his sisters have owned an interest in 1

6 the property since the 1970's which was inherited from their father. The property has been contracted out to third parties for agricultural use since the 1970's. This property is one of 12 parcels that were involved in the Harrison, Dry Fork and Simonson Roads Improvement Project. The purpose of this project was to improve a traffic congestion at the expressway interchange and the intersection of Harrison and Dry Fork Roads. As part of the project public water and sewer, which had previously not been available to the area, were to be installed. The portion of the overall subject property being appropriated consists of 87,000 square fee in fee simple, 1,663 square feet for sewer easements and 15,508 square feet for temporary construction easements. Also being appropriated in fee simple was the roadway right-of-way previously designated as public road occupied (PRO). Originally an additional 29, 673 square feet of excess land was part of the appropriation. By agreement this land was excluded. As a result of the project Simonson Road was extended along the west property line providing an additional 800 feet of frontage for the remaining subject property. Three appraisers testified as expert witnesses at trial: E. Pike Levine forthe property owner and John L. York and Lance Brown for the County. All three appraisers testified the highest and best use was something other than the present use. Mr. Levine testified such use would be highway or expressway oriented commercial. The County's two experts stated a light industrial use was appropriate. There was also conflicting testimony whether water and sewer services were available. All three appraisers did use a comparable sales approach in establishing the value of the property. There was extensive direct and crossexamination testimony on each of the comparable sale examples by each appraiser. 2

7 Based on his analysis Mr. Levine arrived at a $4.00 per square foot figure as the value of the property being appropriated. He applied this full amount on both the fee simple take and for the sewer easements. For the temporary construction easement he used 90% of this valuation. He also found damage to the residue on differing basis to the remaining 18 acres and the 29, 673 square foot excess land parcel. Damage to the former larger site was $0.25 per square foot and the smaller parcel was basically worthless in his opinion. In the County's case Mr. York determined $1.26 per square foot was the value of the property being appropriated. The sewer easements were valued at 50% of the total value since the entire interest was not being acquired. The temporary construction easements were valued at 10% of the total value for use over a two year period. He found no damage to the residue finding neither the larger tract or the excess land parcel had lost any value as a result of the construction. However, he awarded $7, for the use of the excess land during the construction. Mr. Brown conducted his own appraisal of the property. Though he used different comparable sales examples he arrived at the same $1.26 per square foot valuation as Mr. York. While using acreage instead of square feet he arrived at similar final results. The sewer and temporary construction easements were reduced by the same amounts. He also found no damage to the residue. The following chart is a summary of the valuations by the three appraisers: 3

8 Appraiser Fee Simple Sewer Construction Residue Total Easements Easements Damage Use Levine $348,000 6,650 56, ,000 $716,650 York $109,856 1,050 3,915 7,500 $122,321 Brown $109,890 1,048 3,916 7,018 $121,872 In addition to the appraisers, Appellant Thomas R. Roudebush testified about the history of the property. He also stated he felt $5,000,000 would be adequate compensation. Timothy P. Gilday, head of planning and design for the Hamilton County Engineer's Office, testified on cross-examination for Appellant and on direct examination in Appellee's case. He identified plats of the project which are part of the record and testified about the details of the project and constructions. After four days of testimony and argument, the jury returned a unanimous verdict awarding the sum of $198, A Final Judgment Entry was entered on October 3, The balance of the award not previously deposited was paid to the Clerk and disbursed to the property owners. One of the Defendant-Owners filed a timely appeal to the First Appellate District. The Court of Appeals unanimously overruled the sole assignment of error and affirmed the judgment of the trial court. The Court found that the jury's verdict was within the range of the fair market values presented by the expert witnesses and not against the manifest weight of the evidence. 4

9 IV. ARGUMENT IN SUPPORT OF PROPOSITION OF LAW APPELLANT'S PROPOSITION OF LAW THE COURT BELOW ERRED ENTERING A JUST COMPENSATION JURY VERDICT WHICH WAS AGAINST ANY REASONABLE EVIDENCE. RESTATEMENT BY APPELLEE OF THE PROPOSITION OF LAW A JURY VERDICT IN AN APPROPRIATION CASE WHICH IS WITHIN THE RANGE OF THE FAIR MARKET VALUES PRESENTED BY THE EXPERT WITNESSES WILL NOT BE SET ASIDE AS AGAINST THE WEIGHT OF THE EVIDENCE. This case involves one of the basic purposes behind the government's constitutional right to appropriate property, namely to provide for road improvements. In contrast to recent newspaper headlines of controversial eminent domain cases, presented herein is an appeal where the sole assignment of error is that the jury's award was contrary to the evidence. The right to take is not an issue. The Court of Appeals in affirming the trial court followed the basic black letter law. The jury verdict was within the range of reasonable valuation according to the expert witnesses who testified at trial. It was clearly not against the manifest weight of the evidence. There is nothing in the trial record or the appellate decision that would cause the Supreme Court to rule otherwise. Restatement By Appellee Of The First Issue Presented For Review And Argument In An Appropriation Case The Appellate Court Will Not Reverse A Jury Verdict Which Is Supported By Some Competent And Credible Evidence Presented At Trial. Appellant's first issue challenges the jury verdict herein as being against the 5

10 manifest weight of the evidence. Such a challenge places a heavy burden on Appellant to support his argument. It is a burden that Appellant cannot sustain based on the law and the evidence herein. It is a principal of law that a judgment supported by some competent and credible evidence going to all essential elements of the case will not be reversed by a reviewing court as being against the manifest weight of the evidence. C.E. Morris Co. v. Foley Construction Co. (1978) 54 Ohio St.2d 279, 376 N.E.2d 578. In reviewing the entire record the court weighs the evidence with all reasonable inferences and considers the credibility of the witnesses. Every reasonable presumption must be made in favor of the judgment and findings of the fact. Only where the Court finds the jury lost its way and created such a miscarriage of justice will a verdict be reversed as being against the manifest weight of the evidence. State v. Thompkin (1977) 78 Ohio St.3d 380, 383, 678 N.E.2d 541. Contrary to Appellant's argument, the trier of fact herein is the jury. They are not mere assessors of value. The jury, as the trier of fact, determines the credibility and weight of the testimony. Hilliard v. First Indus. L.P. (2005) 165 Ohio App.3d 335, 348, 846 N.E.2d 559. As the First Appellate District stated in Wray v. Deters (1996) 111 Ohio App. 3d 107, 113, 675 N.E.2d 881: A civil judgment will not be reversed upon the weight of the evidence if it is supported by some competent, credible evidence, because evidence is weighed by the trier of fact. Though R.C charges the jury the duty to "impartially assess the compensation and 6

11 damages" it does not take away their ability and obligation to weigh the evidence. The critical evidence as to value herein is the testimony of the appraisers, one for Appellant and two for Appellee. The range of the testimony for the total amount due as fair compensation for the property being appropriated was as follows: Lance Brown $121, John S. York $122, E. Pike Levine $716, Each appraiser conducted an extensive study. The jury heard and considered the testimony. It was the jury's duty to make a final determination as to fair compensation. After extensive deliberations the jury made such a finding by returning a verdict of $198, Based on the expert testimony the verdict was broken down in the categories of compensation for the fee simple taking, permanent sewer easements, temporary construction easements and damage to the residue foreach remaining parcels.' Appellant makes no specific argument why the evidence does not support this verdict. Applying the applicable standard of review the First Appellate District affirmed the verdict of the jury herein. Restatement By Appellee Of The Second Issue Presented For Review And Arciument An Award For Compensation For Property Taken In An Appropriation Action Is The Fair Market Value Of The Land At The Time Of Taking. Article I Section 19 of the Ohio Constitution as well as the Fifth Amendment to the United States Constitution allow the taking of private property for public purposes provided the owner receives compensation. R.C. Chapter 163 sets forth the procedure ' For a more extensive discussion of the evidence as to the compensation for the property appropriated and the jury verdict see the Third Issue Presented for Review and Argument. 7

12 for exercising the right of eminent domain. Compensation as used constitutionally and legislatively has been defined to mean fair market value. As determined by the jury herein and supported by the record, Appellant received such compensation. The measure of just compensation in an appropriation proceedings is the fair market value of the property taken. The determination of compensation is a matter for the jury based on expert opinion testimony. This measure has been repeatedly upheld by the Ohio Supreme Court. It was best stated in Masheter v. Kebe (1976) 49 Ohio St.2d 148, 153, 359 N.E.2d 74 where the Court stated: Where a parcel of land is taken by eminent domain, the measure of compensation to be awarded the owner is the price which would be agreed upon at a voluntary sale between an owner willing but not required to sell and a purchaser willing but not required to buy, when both are fully aware and informed of all circumstances involving the value and use of the particular property. In other words, the test is the fair market value of the land at the time of the taking. Fair market value has been applied to all types of interest appropriated (i.e. fee simple or easements). In cases of partial taking, such as herein, the same measure applies except the owner may also be entitled to "damages" for injury to the property which remains after the taking. Norwood v. Forest Converting Co. (1984) 16 Ohio App.3d 411, 415, 476 N.E.2d 695. This property is typically referred to as the "residue." Damage to the residue is measured by the difference between the pre- and postappropriation fair market value of the residue. Hilliard v. First Industrial, L.P. (2004) 158 Ohio App.3d 792, 796, 822 8

13 N.E.2d 441. The use of fair market value can be found throughout the record herein. Itwas used in opening and closing arguments, the testimony of the appraisers and in the jury instructions. It is the measure which the reviewing Court must apply. There is ample evidence supporting a finding that the jury's award was based on fair market value. Restatement By Appellee Of The Third Issue Presented For Review And Argument. The Verdict Of The Jury Herein Is Based On Competent And Reliable Evidence. In his final issue Appellant would have the Court substitute its judgment in place of the jury's verdict based on one single irrelevant shred of evidence and on an equally irrelevant earlier case involving an adjoining parcel. As stated above the role of the Appellate Court is to review all of the evidence giving deference and every reasonable presumption in favor the jury's verdict. Hilliard v. First Industrial. L.P. (2004) 158 Ohio App.3d 792, 795, 822 N.E.2d 441. Such a consideration of the entire record clearly supports the judgment of the trial court as affirmed by the First Appellate District. The admission of testimony from appraisers as expert witnesses is perfectly proper and lawful. Masheter v. Kebe (1976) 49 Ohio St.2d 148, N.E.2d 74. These expert witnesses may even assist the jury by making the mathematical calculations as to the value of the land taken and the damage to the residue. Wray v. Stvartak (1997) 121 Ohio App.3d 462, 475, 675 N.E.2d 881. By far, the evidence the jury considered in determining the compensation is based on such testimony. The jury had to weigh the testimony of the three appraisers in making the final 9

14 determination. There were numerous issues where the jury could consider to distinguish the testimony: opinions as to the availability of water and sewer services, applicability of the comparable sales and the completely differing opinions as to the damage to the residue. Even the presentation and demeanor of the witness is vitally important in weighing credibility. These considerations are all within the discretion of the jury. The following is a summary of the valuations by the three appraisers. Below their figures is the findings by the jury as found in the verdict: Appraiser Fee Simple Sewer Construction Residue Total Easements Easements Damaae /Use Levine $348,000 6,650 56, ,000 $716,650 York $109,856 1,050 3,915 7,500 $122,321 Brown $109,890 1,048 3,916 7,018 $121,872 Jury $171, , , , $198, As instructed by the Court the jury did not arrive at a quotation verdict. They considered all of the evidence and based their verdict within the range of that evidence. Appellant argues that notwithstanding the three independent appraisals, the best evidence was a sale of one quarter of an acre to an adjoining owner in 1989 as a basis for valuation. There is nothing in evidence comparing this minute tract to Appellant's 20 acre tract or ever if it was an arms-length transaction. Even his own appraiser did not consider or discuss this sale. The same argument must be made against the attempt to introduce the findings from a jury verdict from the trial of an adjoining tract Board of County Commissioners 10

15 of Hamilton County v. Thomas E. Shuh (November 1, 2004) Court of Common Pleas, Hamilton County, Ohio Case No. A The use of that property for commercial purposes makes it completely uncomparable to the property herein. There is nothing in the record that the trial on this property is admissible or applicable. V. EXPLANATION OF WHY THIS CASE IS NOT A CASE OF PUBLIC OR GREAT INTEREST AND DOES NOT INVOLVE A SUBSTANTIAL CONSTITUTIONAL QUESTION. S.Ct.R. III. Section 1 (B)(2) requires Appellant to provide a thorough explanation of why a substantial constitutional question is involved or why the case is of public or great general interest. Appellant has provided neither argument. A review of this case supports the conclusion that there is no constitutional question or is of any public interest. Appellant had his day in Court and did present evidence of the fair market value of the property being appropriated for roadway improvements. The jury duly considered all the evidence and rendered a fair verdict. Appellant's opinion that it was not fair without any argument of support hardly makes it worthy of this Court's review. VI. CONCLUSION Based on the foregoing, Appellee requests the Court to deny jurisdiction to hear the appeal. 11

16 Respectfully submitted, JOSEPH T. DETERS PRg.SE UTING ATTORNEY ^ --^ ILNOUjVTY, QlO^ edkstr.qfh, Jr., sistfifit Prose^uting A rney amilton County, Bhio 230 E. Ninth Street, Suite 4000 Cincinnati, Ohio DDN: (513) FAX: (513) ATTORNEY FOR APPELLEE VII. CERTIFICATE OF SERVICE I hereby certify at a copy of the foregoing Memorandum was served by regular U.S. Mail this Z4^^ day of July, 2007, on Thomas R. Roudebush, 9840 Harrison Avenue, Harrison, Ohio oth, Jr., A's9ist6nt Pro8ecuting-A torney Hamilton County, Ohio 12