Attorneys for Appellant Attorneys for Appellee
Steve Carter William O. Harrington
Attorney General Danville, Indiana
Janet Parsanko Marvin Mitchell
Deputy Attorney General Indianapolis, Indiana
Office of Attorney General
Appeal from the Hendricks Superior Court No. 1, No. 32D01-9612-CP-273
The Honorable Robert W. Freese, Judge
On Petition To Transfer from the Indiana Court of Appeals, No. 32A01-0106-CV-238
December 31, 2003
The court-appointed appraisers filed their report on November 14, 1997, assessing the fair
market value of the land as $23,565 and the fair market value of
improvements to the land as $167,945 (for a total value of $191,510).
On December 10, 1997,
the State filed exceptions to the appraisers report as
to the value of the improvements. The Bishops did not file exceptions.
In early 1998, the State deposited $191,510 with the clerk of the court.
The Bishops filed a request for payment of the appraisers amount.
The State had no objection so the court ordered the clerk to pay
the Bishops the amount on deposit. About this time, the Bishops sold
most of the billboards to an outdoor advertising company for $2000 and gave
an easement to place them along the Interstate at a price of $598,000.
The court entered a scheduling order on June 7, 1999, setting the case
for trial on April 11, 2000. The parties filed witness and exhibit
lists and undertook discovery. An attempt at mediation failed to produce a
settlement. On March 28, 2000, the State moved to withdraw its exceptions
and asked for entry of judgment.
The Bishops objected to the States
request to withdraw its exceptions, and on May 4, 2000, the trial court
denied the motion.
On April 18, 2000, the Bishops filed a motion in limine, seeking to prohibit testimony about compensation other than fair market value, by which they meant the States desire to pay the value of the land taken, the value of the one billboard taken, and the cost to move the remaining three billboards onto the Bishops remaining property. The State filed a brief in opposition. After a hearing, the trial court issued an order on January 31, 2001, prohibiting the State from presenting any evidence regarding the cost of relocating the billboards or mentioning that the Bishops have billboards on their remaining property. The State subsequently filed a motion in limine to prohibit evidence of lost income or profits or the use of the capitalization of income approach to determining fair market value. The motion was denied.
The trial occurred in March 2001, and the jury returned a verdict of $595,000. The court deducted the money the State had already paid, then added $102,195.78 in interest and $2,500 in litigation expenses.
The State appealed, and the Court of Appeals affirmed.
State v. Bishop,
775 N.E.2d 335 (Ind. Ct. App. 2002). We granted transfer.
The State alleges three errors by the trial court: (1) the denial of
its motion to withdraw its exceptions, (2) the admission of evidence regarding capitalization
of income, and (3) the exclusion of evidence regarding the cost to move
the existing billboards. We will address the denial of the motion to
withdraw exceptions first and the two contentions regarding the proper measure of damages
Denny v. State, 244 Ind. 5,
189 N.E.2d 820 (1963), appeared to
presume an absolute right to withdraw exceptions, subsequent cases have held that a
pretrial order can restrict a partys ability to withdraw. See State v.
Blount, 154 Ind. App. 580, 290 N.E.2d 480 (1972) (party may ordinarily withdraw
exceptions if its motion is timely but when a party agrees to a
pretrial order limiting the parties ability to change the trial plan, then does
not seek to modify it, the party has no basis to object when
judge denies its motion); McGill v. Muddyfork of Silver Creek Watershed Conservancy District,
175 Ind. App. 48,
370 N.E.2d 365 (1977) (in absence of an express
agreement or order, motion was timely and party could withdraw); Public Serv. Co.
of Ind. v. Rounder, 423 N.E.2d 666, 667 (Ind. Ct. App. 1981) (Absent
an express pretrial agreement, a pretrial order or other controlling order, a party
may withdraw its exceptions to an appraisers award.).
In Daugherty v. State, 699 N.E.2d 780 (Ind. Ct. App. 1998), the Court of Appeals recognized that the practical effect of these cases was to place the decision whether to grant or deny the motion at the discretion of the trial court. As Judge Kirsch wrote:
The effect of the Blount decision and the subsequent cases that recognized this exception was to create a rule that was regulated through the trial court's discretion. Our decision here makes explicit what was implied in Blount: a party does not have an absolute right to withdraw exceptions to the appraisers' report; rather, the withdrawal of exceptions is subject to the trial court's discretion. While the court in the exercise of such discretion may ordinarily allow the withdrawal, it may deny the request to withdraw or condition the withdrawal upon such terms and conditions as the court deems necessary to avoid injustice.
Id. at 782.
We conclude that the exercise of discretion concerning withdrawal, based on factors such
as timeliness and inconvenience to opposing parties is more likely to produce just
outcomes than a rule conferring an absolute right of withdrawal. The
court held that [t]he trial court in exercising its discretion should allow the
withdrawal of exceptions except in instances where injustice would result. 699 N.E.2d
at 782-83. We emphasize what the Daugherty court saidreiterated by the Court
of Appeals in this case: parties who wish to insure a trial
on the merits should file their own timely exceptions, and those who file
should recognize that they may not be permitted to withdraw those exceptions and
terminate litigation which they have begun.
The State argues alternatively that the trial court abused its discretion in denying
the motion. The
Daugherty court proposed the following non-exclusive factors for the
trial court to consider in making its determination:
 the length of time between the filing of the appraisers' report and the motion to withdraw,  whether the withdrawing party is attempting to do so on the eve of the trial,  whether the withdrawing party and trial court have been put on notice of the other party's dissatisfaction with the report, either that be through the filing of belated exceptions or otherwise, and  the extent of trial preparation which has already occurred, including the securing of expert witnesses and the extent of discovery.
Id. at 783. We adopt this approach, emphasizing that the factors are
not a four-part test but are merely a non-exclusive list of circumstances for
the trial judge to consider when exercising discretion. Appellate courts will reverse
only where the courts decision is clearly against the logic and effect of
the facts and circumstances before the court or the reasonable, probable, and actual
deductions to be drawn from those facts and circumstances. Lucre Corp. v.
County of Gibson, 657 N.E.2d 150, 152 (Ind. Ct. App. 1995).
Following this approach, we cannot say it was an abuse of discretion for the trial court to deny the States motion. T he State filed its exceptions to the appraisers report on December 9, 1997, and did not seek to withdraw its exceptions until two years and four months laterfifteen days before the scheduled trial. In addition, the State was arguably put on notice of the Bishops' dissatisfaction with the report through information exchanged during discovery or during mediation. Finally, the Bishops claim that they had exchanged interrogatories, retained two expert witnesses and spent several tens of thousands of dollars on attorneys fees, appraisers and other expenditures. (App. at 189.)
The trial court might well have allowed the withdrawal, or conditioned it upon
the payment of the Bishops litigation expenses. Filing a request to withdraw
after two years and four months may be understandable in cases where a
party conducted discovery and attempted mediation then realized that the appraisers amount was
reasonable. Similarly, whether the withdrawing party is attempting to withdraw on the
eve of trial is also relevant. See McGill, 175 Ind. App. 48,
370 N.E.2d 365 (motion to withdraw made six days before trial held timely).
The State also argues that the Bishops would have incurred many of
the same expenses even if the State had withdrawn its exceptions much earlier.
Finally, the State argues that the Bishops did not demonstrate that the
withdrawal would result in injustice.
Despite these arguments, we cannot say that the trial court abused its discretion.
It is well established in Indiana that the basic measure of damages in
eminent domain cases is the fair market value of the property at the
time of the take. State v. Church of the Nazarene of Logansport,
268 Ind. 523, 526, 377 N.E.2d 607, 608 (1978).
Fair market value
is the price at which property would change hands between a willing buyer
and seller, neither being under any compulsion to consummate the sale. Ohio
Cas. Ins. Co. v. Ramsey, 439 N.E.2d 1162, 1167 (Ind. Ct. App. 1982).
Anything affecting the sale value [on the date of the taking] .
. . is a proper matter for the jury's consideration in attempting to
arrive at a fair market value. Southern Ind. Gas & Elec. Co.
v. Gerhardt, 241 Ind. 389, 393, 172 N.E.2d 204, 205-6 (1961).
Three widely accepted approaches to estimating the fair market value of property taken by eminent domain are:
(1) the current cost of reproducing the property less depreciation from all sources; (2) the 'market data' approach or value indicated by recent sales of comparable properties in the market, and (3) the 'income-approach,' or the value which the property's net earning power will support based upon the capitalization of net income.
State v. Jones, 173 Ind. App. 243, 251, 363 N.E.2d 1018, 1024 (1977) (emphasis in original) (quoting State v. Covich, 260 Cal. App. 2d 663, 667 Cal. Rptr. 280, 282 (1968)); Ramsey, 439 N.E.2d at 1167. In the appraisal of real estate, any one or all three of these approaches to estimate the fair market value may be applied. Annon II, Inc. v. Rill, 597 N.E.2d 320, 327 (Ind. Ct. App. 1992).
The State argues that it was error for the trial court to exclude
evidence regarding the cost to move the billboards from the condemned property to
an appropriate location on the residue. We agree. The cost to
move the billboards was evidence of the cost to reproduce the improvements situated
on the condemned property and therefore should have been presented to the jury.
Likewise, while capitalization of income is sometimes admissible to establish the fair
market value of condemned billboards, for reasons which will be apparent from the
discussion below, income capitalization was not relevant to market value given the facts
of this case.
Prevailing Rules on Valuation. Because this Court has not previously addressed the question of the appropriate way to value billboards in an eminent domain case and because we are remanding this case for a new trial on values, we address the question now.
Other jurisdictions have treated billboards the same as other improvements to realty, adhering
to the guiding principle that improvements are compensable to the extent that they
enhance the value of the land as a whole.
Eminent Domain: Determination
of Just Compensation for Condemnation of Billboards or Other Advertising Signs, 73 A.L.R.3d
1122, 1125. In surveying the way various jurisdictions value billboards, the A.L.R.s
editors concluded that in arriving at this enhancement value, virtually every court has
appeared to limit its consideration to the evidence of the replacement or reproduction
cost of the appropriated sign, less depreciation. Id.
Evidence of the
rental income that the appropriated sign could be expected to produce has been
deemed admissible only where it was shown that the condemnee was unable to
relocate a sign within the same market area. Id.
When the rental income approach is allowed, it is often subject to limitations.
example, the Arizona Court of Appeals has held that the income
approach was permissible subject to two important limitations: (1) the property itself must
be income-producing rather than simply producing income from business being conducted thereon, and
(2) if the billboards can be relocated in the same market area, the
income approach is inappropriate. Scottsdale v. Eller Outdoor Advertising Co., 579 P.2d
590, 597-98 (Ariz. App. 1978). The New Hampshire Supreme Court has held
that the cost valuation of the signs coupled with the income value of
the ground leases awarded all the value that could reasonably be expected to
accrue to the [owner] and that value is limited here by the brevity
of the leaseholds and their uncertain renewal prospects.
State v. 3M Natl
Advertising Co., 653 A.2d 1092, 1094 (N.H. 1995).
This approach is consistent with current Indiana eminent domain law.
It has long been the established rule that in determining the value of property taken by condemnation or appropriation the availability and adaptability of property for uses other than that to which it is applied at the time of taking, so far as it may appear from the evidence, may be taken into consideration, but inquiry as to damages cannot go into an intended specific use.
State v. Tibbles, 234 Ind. 47, 49,
123 N.E.2d 170, 170 (Ind. 1954)
(citations omitted). It follows that billboards on condemned property are compensable to
the extent that they enhanced the value of the property on the day
of the take but not for any lost income based on potential future
Capitalization of income evidence is allowed only in limited circumstances. Income from property is an element to be considered in determining the market value of condemned property when the income is derived from the intrinsic nature of the property itself and not from the business conducted on the property. Jones, 173 Ind. App. at 252-53, 363 N.E.2d at 1024 (quoting State v. Williams, 156 Ind. App. 625, 635, 297 N.E.2d 880, 886 (Ind. 1973)). Jones involved the appropriation of land suitable for quarrying which was part of an ongoing quarrying operation. The court distinguished the facts of that case from those in Williams, which involved a restaurant business being conducted on the land, because the quarrying business derive[d] its income by processing material which is an intrinsic part of the land. Id. at 253, 1024. Billboards are more akin to a restaurant than a quarrying operation because, like a restaurant, a billboard can be relocated to another appropriate location and continue to produce the same or similar income. Unlike a quarrying operation, its value is not tied to the land itself.
The income approach is also limited to situations where the property is being
operated as a going concern, is in good condition, and is capable of
producing the income to be capitalized.
J.J. Newberry Co. v. City of
East Chicago, 441 N.E.2d 39, 42-43 (Ind. Ct. App. 1982).
not mean to say that capitalization of income is never appropriate for determining
the fair market value of billboards, but the circumstances will be rare.
While it might be appropriate to consider the anticipated income from an existing
lease when calculating fair market value, attempting to determine the potential future profits
of an unleased billboard is inherently speculative.
Finally, we note that the purpose of these proceedings is to compensate the
landowner for the value of what was taken, no less and no more:
Irrespective of the method adopted for the ascertainment of such value, it is incumbent upon the condemnor to endeavor to reach a result that is truly just compensation, that is, fair to the public as well as to the owner of the property taken. The criteria for determination of compensation and the elements which command consideration have not become unalterably fixed, and consideration must be given to the nature of the property affected and the extent of the interest acquired. Value is a term which is relative in character.
Jones, 173 Ind. App at 220-51, 363 N.E.2d at 1023 (quoting 4 Nichols
on Eminent Domain, Third Edition, § 12.1 (citations omitted)). In this case,
the Bishops retained the ability to lease billboards on land adjacent to the
highway. They are not entitled to compensation for something that was not
Dickson, Sullivan, Boehm, and Rucker, JJ., concur.
For the purpose of assessing compensation and damages, the right to compensation and
damages is considered to have accrued as of the date of the service
of the notice provided in section 6 of this chapter, and actual value
of compensation and damages at that date shall be:
(1) the measure of compensation for all property to be actually acquired; and
(2) the basis of damages to property not actually acquired but injuriously affected;
except as to the damages stated in subsection (c)(4).
(West 2002). The parties assume that the measure of compensation contemplated by
the statute is the fair market value of the property acquired including the
fair market value of improvements to the property, which the appraisers are instructed
to report under (c)(1) and (2). We assume without deciding that this