260 North 12th Street, LLC v. State of Wisconsin Department of Transportation

2011 WI 103, 808 N.W.2d 372, 338 Wis. 2d 34, 2011 Wisc. LEXIS 752
CourtWisconsin Supreme Court
DecidedDecember 22, 2011
DocketNo. 2009AP1557
StatusPublished
Cited by28 cases

This text of 2011 WI 103 (260 North 12th Street, LLC v. State of Wisconsin Department of Transportation) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
260 North 12th Street, LLC v. State of Wisconsin Department of Transportation, 2011 WI 103, 808 N.W.2d 372, 338 Wis. 2d 34, 2011 Wisc. LEXIS 752 (Wis. 2011).

Opinions

ANNETTE KINGSLAND ZIEGLER, J.

¶ 1. This is a review of a published decision of the court of appeals, 260 North 12th Street, LLC v. Wisconsin DOT, 2010 WI App 138, 329 Wis. 2d 748, 792 N.W.2d 572, that affirmed a judgment entered by the Milwaukee County Circuit Court1 on a jury verdict in favor of 260 North 12th Street, LLC and Basil E. Ryan, Jr. (collectively, Ryan).

¶ 2. Pursuant to its power of eminent domain, the Wisconsin Department of Transportation (DOT) acquired Ryan's property as part of a plan to reconstruct a major freeway interchange in downtown Milwaukee, commonly known as the Marquette Interchange. A jury awarded Ryan $2,001,725 as just compensation for the taking of his property. Over Ryan's objection, the jury was presented evidence concerning the environmental contamination of Ryan's property and the cost to remediate it.

¶ 3. Ryan moved the circuit court for a judgment notwithstanding the verdict or, alternatively, for a new trial, maintaining that evidence of environmental contamination and of remediation costs are inadmissible in [40]*40condemnation proceedings as a matter of law. In addition, Ryan argued that the circuit court erroneously exercised its discretion when it (1) admitted speculative testimony by the DOT'S appraiser, (2) excluded Ryan's expert witnesses, and (3) rejected Ryan's proposed jury instructions.

¶ 4. The circuit court denied Ryan's motion and entered judgment on the jury verdict. The court of appeals affirmed.

¶ 5. We granted Ryan's petition for review and now affirm.

¶ 6. This case presents the following four issues:

(1) Are evidence of environmental contamination and of remediation costs admissible in condemnation proceedings under Wis. Stat. ch. 32?
(2) Assuming evidence of environmental contamination and of remediation costs were admissible in this case, did the circuit court erroneously exercise its discretion when it admitted at trial testimony by the DOT's appraiser over Ryan's objection that the testimony was speculative?
(3) Did the circuit court erroneously exercise its discretion when it excluded Ryan's expert witnesses as a result of Ryan's failure to timely disclose the witnesses in accordance with the court's scheduling order?
(4) Did the circuit court erroneously exercise its discretion when it rejected Ryan's proposed jury instructions in favor of the standard jury instruction on fair market value in the case of a total taking?

¶ 7. First, we conclude that evidence of environmental contamination and of remediation costs are admissible in condemnation proceedings under Wis. [41]*41Stat. ch. 32, subject to the circuit court's broad discretion. Such evidence is admissible in condemnation proceedings in the circuit court's discretion so long as it is relevant to the fair market value of the property. A property's environmental contamination and the costs to remediate it are relevant to the property's fair market value if they would influence a prudent purchaser who is willing and able, but not obliged, to buy the property.

¶ 8. We emphasize that our holding speaks only to a circuit court's discretionary authority to admit evidence of environmental contamination and of remediation costs in condemnation proceedings. We take no position on how the admission of such evidence in a condemnation proceeding may affect the property owner in a future environmental action, if one should occur.

¶ 9. Second, we conclude that the circuit court appropriately exercised its discretion when it admitted at trial testimony by the DOT's appraiser over Ryan's objection that the testimony was speculative. Ryan does not take issue with the appraiser's qualifications or the relevance of his testimony; rather, Ryan objects to the method by which the appraiser valued Ryan's property. However, any flaws in the appraiser's methodology properly went to the weight of his testimony, not its admissibility.

¶ 10. Third, we conclude that the circuit court appropriately exercised its discretion when it excluded Ryan's expert witnesses as a result of Ryan's failure to timely disclose the witnesses in accordance with the court's scheduling order. The circuit court acted under its express statutory authority to sanction Ryan and made a reasoned decision to exclude the expert witnesses after carefully considering the facts of record.

[42]*42¶ 11. Fourth and finally, we conclude that the circuit court appropriately exercised its discretion when it rejected Ryan's proposed jury instructions in favor of the standard jury instruction on fair market value in the case of a total taking. Ryan's bald assertion that the given jury instructions were insufficient does not meet the standard for reversal.

I. FACTUAL BACKGROUND

¶ 12. Pursuant to its power of eminent domain under Wis. Stat. § 32.05, the DOT acquired Ryan's property as part of a plan to reconstruct the Marquette Interchange. Exercising his right under § 32.05(2)(b), Ryan obtained his own appraisal of his property, completed by Wisconsin-certified general appraiser Lawrence R. Nicholson (Nicholson). Nicholson valued Ryan's property at $3,497,000. However, based upon its own appraisal, the DOT offered Ryan compensation of $1,348,000. See § 32.05(3). Ryan rejected the DOT's offer. Consequently, on March 30, 2005, the DOT recorded in the office of the Register of Deeds of Milwaukee County an award of damages equal to the jurisdictional offer and took Ryan's property. See § 32.05(7).

II. PROCEDURAL POSTURE

¶ 13. On June 22, 2005, pursuant to Wis. Stat. § 32.05(11), Ryan appealed the DOT's award of damages to the Milwaukee County Circuit Court. The sole issue on appeal was the amount of just compensation owed to Ryan by the DOT, as determined by a jury. See § 32.05(11).

¶ 14. On December 13, 2005, the Honorable Francis T. Wasielewski conducted the case's first scheduling conference. Ryan's counsel, Attorney Alan [43]*43Marcuvitz, was present. Judge Wasielewski issued a scheduling order, which, inter alia, set February 15, 2006, as the date by which Ryan was required to disclose his witnesses, including experts.2 The order explicitly provided, in bold-faced type, "Witnesses not timely named and described shall not be called as witnesses at trial, except for good cause shown."

¶ 15. Adhering to the scheduling order, Ryan submitted his list of witnesses on February 15, 2006. His list disclosed two expert witnesses: Nicholson and an unnamed "Surveyor/Engineer" from Kapur & Associates. In addition, at the end of his witness list, Ryan "reserve [d] the right... to name witnesses to be called in rebuttal including, but not limited to" appraisers Stuart M. Fritz and Mark A. Athanas.

¶ 16. On May 8, 2006, the DOT filed its list of witnesses. The DOT named 17 expert witnesses, including Wisconsin-certified general appraiser Scott L. MacWilliams (MacWilliams) and professional engineer and geologist Kenneth S. Wade (Wade).

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Cite This Page — Counsel Stack

Bluebook (online)
2011 WI 103, 808 N.W.2d 372, 338 Wis. 2d 34, 2011 Wisc. LEXIS 752, Counsel Stack Legal Research, https://law.counselstack.com/opinion/260-north-12th-street-llc-v-state-of-wisconsin-department-of-wis-2011.