Lantis v. City of Omaha

467 N.W.2d 649, 237 Neb. 670, 1991 Neb. LEXIS 147
CourtNebraska Supreme Court
DecidedMarch 29, 1991
Docket87-1090
StatusPublished
Cited by8 cases

This text of 467 N.W.2d 649 (Lantis v. City of Omaha) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lantis v. City of Omaha, 467 N.W.2d 649, 237 Neb. 670, 1991 Neb. LEXIS 147 (Neb. 1991).

Opinions

Fahrnbruch, J.

Complaining that the trial court erred (1) in failing to admit testimony of their expert witness and (2) in failing to properly instruct the jury, Lester and Viola Lantis, husband and wife, and other parties who are mortgagees of the land involved appeal a $48,500 verdict awarded them against the City of Omaha for the partial taking of land upon which a trailer court was located.

On appeal, this eminent domain proceeding initially was heard by the Appellate Division of the District Court. We affirmed the jury verdict of the district court for Douglas County. See Lantis v. City of Omaha, 235 Neb. xvii (case No. 87-1090, May 18, 1990). Subsequently, this court granted a rehearing. Following the rehearing, we again affirm the verdict of the district court.

Throughout the appeal to this court, the appellants have specifically assigned as error the trial court’s failure to (1) admit the testimony of the landowners’ valuation witness, (2) instruct the jury on the “before and after” measure of just compensation in a case of a partial taking, and (3) give the landowners’ requested instruction No. 12.

The trailer court involved in this lawsuit, Garden Valley Trailer Court, owned by the Lantises, is located on 7.78 acres of improved real estate located at approximately 16th and Jaynes Streets in Omaha. The mobile home park is bisected into a [672]*672north and a south parcel by a tract of land owned by a third party. Both parcels of the mobile home park, prior to condemnation, contained improved trailer lots, consisting of concrete pads with utility hookups for gas, water, sewer, electric, and telephone services for each mobile home. Before the eminent domain proceedings, there existed 122 to 129 usable mobile home sites at the park. The City of Omaha condemned approximately 47 feet of the north portion of the trailer court for construction of the Storz Expressway. This partial taking eliminated 15 of the mobile home spaces and rendered 4 other spaces useless because they then were so situated that a mobile home could not be pulled in and out of each of those 4 spaces. The City of Omaha also obtained a 16,878.9-square-foot construction easement for a 1-year period from the trailer court and took 11,700 square feet of concrete and 510 feet of chain link fence.

During the course of the trial, the appellants offered testimony of George McCabe, Ph.D., a professor of finance at the University of Nebraska-Lincoln, as to the appellants’ “just compensation.” Through a motion in limine, the City of Omaha objected to the use of Dr. McCabe’s testimony, his report entitled “Value of Garden Valley Trailer Court,” and his estimate of the reduction in value of the trailer court. The City of Omaha claimed that McCabe utilized an inappropriate method in arriving at damages in this eminent domain case.

Outside the presence of the jury, the trial court permitted the appellee to conduct a voir dire examination of McCabe. At the conclusion of the examination, McCabe’s testimony was the subject of an offer of proof by the appellants, to which testimony the appellee objected. The trial court sustained the City of Omaha’s motion in limine and objection. Appellants, in their first assignment of error, claim that the trial court’s rejection of McCabe’s testimony was erroneous.

The condemnees called only McCabe as an expert witness. McCabe testified that he was not a licensed real estate appraiser in Nebraska, that he did not hold himself out as an expert in the appraisal of real estate, that he had never before appraised a trailer court, and that he made no independent study on his own to verify or study any market sales. At the trial court level, the [673]*673City of Omaha questioned whether McCabe was qualified to testify as an expert witness in an eminent domain proceeding. The condemner did not preserve that issue for appellate review, and we therefore make no determination in regard to that matter. The record reflects that McCabe valued the Lantis trailer court as an ongoing business both before and after the taking and determined the difference between the two to be the condemnees’ just compensation.

There are basically two means by which just compensation in partial takings is determined. 7A Nichols, The Law of Eminent Domain § 12.02 (rev. 3d ed. 1990). Under one method the value of the entire tract is found just prior to the taking, the value of the remaining tract is evaluated after the taking, and the difference of these two quantities gives the compensation. Id. The appellants acknowledge that McCabe used this method to determine just compensation and in so doing valued the trailer court as an “ongoing concern.” Using this “before and after” valuation of an ongoing concern, McCabe found the appellants’ just compensation to be $121,736.

The second means by which just compensation in partial takings is determined involves determining the market value of the land taken and then measuring the difference in value of the remainder before and after the taking. Id. This is the measure of compensation used for partial takings of land in eminent domain proceedings in this state. “The measure of compensation for land taken for public use is the fair and reasonable market value of the land actually appropriated and the difference in the fair and reasonable market value of the remainder of the land before and after the taking.” (Emphasis supplied.) Harmony Lanes v. State, 193 Neb. 826, 830, 229 N.W.2d 203, 206 (1975). Accord, Verzani v. State, 188 Neb. 162, 195 N.W.2d 762 (1972); Berlowitz v. State, 180 Neb. 164, 141 N.W.2d 764 (1966); Chaloupka v. State, 176 Neb. 746, 127 N.W.2d 291 (1964).

McCabe did not purport to testify as to the value of the real estate actually taken, nor did he purport to testify as to the difference in the fair and reasonable market value of the remainder of the land before and after the taking. This deficiency in and of itself was sufficient reason for the trial [674]*674court’s refusal to permit McCabe to testify as to the compensation to which the appellants were entitled.

In sustaining the condemner’s objection to McCabe’s testimony, the trial court declared: “There’s no question in my mind that the witness, George McCabe, Ph.D., is incorporating into his computations regarding the fair market value of this property future and anticipated profits. In so doing, he’s in contravention of Nebraska law as I understand it.” The trial court’s perception that McCabe utilized profits in determining appellants’ just compensation is conceded in appellants’ brief: “To allow capitalization of income, but not capitalization of profits, is to swallow the camel and then strain at the gnat.” Brief for appellants at 28. In Y Motel, Inc. v. State, 193 Neb. 526, 227 N.W.2d 869 (1975), we held that gross rentals may be admissible to allow a jury to gauge comparability of sales relied upon for comparison and, upon proper foundation, that gross rental may be received as an item to which prospective buyers give substantial consideration. We also held in

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Lantis v. City of Omaha
467 N.W.2d 649 (Nebraska Supreme Court, 1991)

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Bluebook (online)
467 N.W.2d 649, 237 Neb. 670, 1991 Neb. LEXIS 147, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lantis-v-city-of-omaha-neb-1991.