Court of Appeals Allows Expert Testimony on Permit Issue and Bars Similar Sale Evidence

January 5, 2015

The Wisconsin Court of Appeals recently issued a decision permitting a DOT appraiser to testify that a landowner would have been required to obtain a new driveway access permit from the DOT to convert his property to a commercial use. This resulted in a lower value for the subject property. In the same ruling, the Court of Appeals barred the landowner from introducing evidence of what the DOT paid other nearby property owners for similar land. While the decision is not earth-shattering, it confirms the importance of expert testimony and the inadmissibility of similar sale evidence.

The condemnee owned two parcels of property along U.S. Highway 151 between Madison and Sun Prairie, Wisconsin that were being condemned by the DOT for a highway improvement project. The parcels were originally zoned agricultural, but in 2011, they were rezoned commercial. Prior to trial, the condemnee, Forbes, filed a motion in limine asking the court to exclude the testimony of the DOT’s expert appraiser who opined that, before the taking, Forbes would have been required to obtain a new driveway access permit from the DOT to convert the private gravel driveway from farming to commercial use – and the DOT would have rejected the request for such a permit. Forbes also filed a motion in limine asking the court to permit its attorney to cross-examine the DOT’s appraiser on the amount of money the DOT paid for property across the highway from the Forbes’ parcels that also had access rights to Highway 151. The trial court denied both motions.

The Court of Appeals affirmed on both issues. As to the DOT’s appraiser’s testimony, the court found the opinion reliable and relevant. The weight to be given to expert testimony is for the trier of fact, and Forbes’ attorney was given ample opportunity to cross-examine the DOT’s appraiser on the assumptions underlying his opinion. Accordingly, the Court of Appeals found the trial court properly admitted the appraiser’s testimony and refused to disturb the jury’s award.

Second, the Court of Appeals held that evidence of what the DOT paid for nearby property with similar access rights was inadmissible. Relying on prior Supreme Court precedent, the court found that the price paid in settlement of condemnation proceedings or the price paid by the condemnor for similar land, even if proceedings had not been commenced, where the purchaser has the power to take by eminent domain, is not admissible.

The Forbes decision once again highlights the importance of using expert testimony to admit evidence in a condemnation trial. An expert witness is a relatively easy way to get facts and evidence in front of the jury that would not otherwise be admissible. As long as the proper foundation is laid, the expert can testify about a variety of factors that diminish or increase the value of the subject property. On the flip side, counsel should always be prepared to cross-examine the opposing appraiser and extract all facts and testimony that weakens the appraiser’s opinions in the eyes of the jury.

In re Acquisition of Property of Forbes SRE II, LLC v. State, 2012AP626, 356 Wis. 2d 829, unpublished op. and order (Wis. Ct. App., August 28, 2014).