2015 UT App 211
THE UTAH COURT OF APPEALS
UTAH DEPARTMENT OF TRANSPORTATION,
Plaintiff and Appellee,
v.
TBT PROPERTY MANAGEMENT, INC.,
Defendant and Appellant.
Memorandum Decision
No. 20130211-CA
Filed August 20, 2015
Fourth District Court, Provo Department
The Honorable Steven L. Hansen
No. 090404464
Brant H. Wall and Gregory B. Wall, Attorneys
for Appellant
Sean D. Reyes, Brent A. Burnett, and Randy S.
Hunter, Attorneys for Appellee
JUDGE MICHELE M. CHRISTIANSEN authored this Memorandum
Decision, in which SENIOR JUDGES RUSSELL W. BENCH AND JUDITH
M. BILLINGS concurred.1
CHRISTIANSEN, Judge:
¶1 This case involves a taking of private property by the
Utah Department of Transportation (UDOT) to construct the
Pioneer Crossing Highway, a limited-access public highway. The
landowner, TBT Property Management, Inc. (TBT) appeals the
trial court’s pretrial rulings regarding whether UDOT had
mitigated severance damages from the condemnation by
1. The Honorable Russell W. Bench and Judith M. Billings,
Senior Judges, sat by special assignment as authorized by law.
See generally Utah R. Jud. Admin. 11-201(6).
UDOT v. TBT Property Management, Inc.
providing access to an otherwise isolated portion of TBT’s
remainder property and whether UDOT could amend its
complaint to reflect that mitigation. TBT claims that these errors
rendered the jury’s verdict unsupported by the evidence. TBT
also challenges the trial court’s rulings limiting TBT’s cross-
examination of UDOT’s appraisal expert at trial and allowing the
jury to view the subject property. We affirm.
¶2 In 2009, UDOT instituted this eminent domain action to
acquire a portion of TBT’s property located in Lehi, Utah, in
order to build the Pioneer Crossing Highway. UDOT’s
condemnation resolution identified the property to be taken as
approximately ten acres of TBT’s real property and all access
rights to or from the condemned property or Pioneer Crossing
Highway appurtenant to TBT’s remainder property. UDOT also
sought immediate occupancy of the property. The parties agreed
to an effective taking date of March 30, 2009.
¶3 In its answer, TBT sought severance damages, claiming
that the condemnation would diminish the market value of
TBT’s remainder property by limiting public road access to and
from the property. TBT’s property previously had access to 8020
North Street along its southern boundary and access to Millpond
Road along its western boundary. After the condemnation,
TBT’s remainder property would be left with no access along the
southern boundary and restricted access to Millpond Road.
¶4 In May 2011, before the trial to determine just
compensation for the taking and severance damages, UDOT
sought permission from the court to amend its complaint to
reflect a modified condemnation resolution. The modified
condemnation resolution identified the same real property to be
taken but reduced the access rights taken in the condemnation
by ‚*e+xcepting and reserving to *TBT], their successors or
assigns, the right of access to the nearest roadway of [Pioneer
Crossing Highway] over and across the Pioneer Crossing right of
way line for a 66-foot section.‛ UDOT thus claimed to have
mitigated the access restrictions to TBT’s remainder property
created by the original condemnation resolution and thereby to
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UDOT v. TBT Property Management, Inc.
have reduced the severance damages associated with the
condemnation. TBT objected to UDOT’s motion to amend,
arguing that the proposed amended complaint did not
materially reduce the amount of property taken and failed to
demonstrate any mitigation of TBT’s damages.
¶5 After a hearing on the motion, the trial court granted
UDOT’s request to amend its complaint. The trial court
determined (1) that TBT would not suffer prejudice from the
amendment because the amount of compensation and severance
damages had not yet been determined at trial and (2) that UDOT
did not file the motion to amend due to any ‚‘dilatory motive,
bad faith, or unreasonable neglect.’‛
¶6 Thereafter, TBT filed a motion in limine requesting that
the court rule as a matter of law that UDOT had not established
viable access to TBT’s remainder property by creating an actual
highway or roadway. TBT argued that the reservation of a ‚right
of access to the nearest roadway‛ in the modified condemnation
resolution did not convey an actual interest in land or provide
present access to TBT’s remainder property. Specifically, TBT
argued that because UDOT had neither entered into any
agreements with the cities of American Fork or Lehi nor made
any official plans to build a road that connected TBT’s remainder
property to a public road, the mere provision of a break in the
limited-access line did not provide legally sufficient access to
TBT’s remainder property to support a basis for mitigation of
damages. UDOT opposed TBT’s motion, arguing that UDOT
provided access by opening up the limited-access line for TBT’s
use, thereby mitigating the impact on the value of the remainder
property. The trial court denied TBT’s motion, ruling that ‚the
right of access in the amended complaint has been established by
sufficient evidence now to submit the question to the jury to
decide whether or not UDOT has, indeed, mitigated damages by
providing access.‛
¶7 The case proceeded to trial to determine the
compensation due to TBT for UDOT’s condemnation of the
property, the compensation due to TBT for UDOT’s use of
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UDOT v. TBT Property Management, Inc.
temporary easements over TBT’s property, and severance
damages to TBT’s remainder property. UDOT’s appraisal expert
testified that, as of the agreed-upon valuation date of March 30,
2009, severance damages to the remainder property were
$51,411. TBT called two appraisal experts, both of whom testified
to severance damages in excess of $2,000,000 in light of UDOT’s
amendment of the condemnation resolution.
¶8 At trial, counsel for TBT attempted to cross-examine
UDOT’s appraisal expert, J. Phillip Cook, about an appraisal he
prepared for UDOT in 2008, prior to the filing of the eminent
domain action. UDOT objected, contending that the appraisal
had been prepared for valuation and occupancy purposes and
that the result of that appraisal was therefore not admissible
evidence pursuant to Utah Code section 78B-6-510(3). In
response, counsel for TBT argued that he was not asking Cook to
testify to the property value resulting from that appraisal but
rather to testify about how Cook determined the fair market
value of the property in 2008. UDOT then stipulated that Cook
could testify as to the amount of severance damages he assessed
in both of his appraisals, but not to the fair market value he
determined for the property in 2008. UDOT also stipulated that
Cook could testify as to whether his assessment of fair market
value of the property in 2008 was higher or lower than his
assessment of that property’s value in 2009. Cook testified that
his 2009 appraisal valued the property taken at a higher value.
Cook also testified that in his 2008 appraisal he had calculated
severance damages to be $1,490,203 and that in 2009, after the
amendment to the condemnation resolution to provide access to
TBT’s remainder property, he had calculated severance damages
to be $51,411.
¶9 During trial, UDOT proposed that the jury visit the
subject premises. TBT objected to this jury view, asserting that a
road UDOT had constructed to provide access to an adjacent
landowner ‚would imply an unwarranted and false inference of
a valid access‛ to TBT’s remainder property. TBT also argued
that a jury view would be prejudicial because TBT’s property
had not been maintained and heavy equipment was being stored
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UDOT v. TBT Property Management, Inc.
on the property. The trial court allowed the jury to visit the
property over TBT’s objection.
¶10 At the close of trial, the jury returned a verdict against
UDOT and awarded TBT $1,877,194 as the fair market value of
the taking, $14,983 for the value of two temporary construction
easements associated with the property, and $1,044,091 for the
severance damages to the remainder property. TBT appeals.
I. Issues Relating to Access
¶11 First, TBT raises three issues on appeal that, while framed
as distinct challenges to the trial court’s rulings, all arise from the
same legal issue—validity of access to the remainder property.
Specifically, TBT’s challenges—to the trial court’s grant of
UDOT’s motion to amend its complaint to include mitigation of
damages, to the trial court’s denial of TBT’s motion in limine,
and to the jury’s verdict—all stem from TBT’s claim that the
break in the Pioneer Crossing limited-access line reserved to TBT
in the amended condemnation resolution did not constitute
‚access‛ to TBT’s remainder property for purposes of mitigation.
We review the trial court’s decisions on UDOT’s motion to
amend and TBT’s motion in limine for an abuse of discretion.
Daines v. Vincent, 2008 UT 51, ¶ 21, 190 P.3d 1269; Aurora Credit
Servs., Inc. v. Liberty W. Dev., Inc., 970 P.2d 1273, 1281 (Utah
1998). But we review for correctness the trial court’s underlying
legal conclusions, including its interpretation of the relevant
statutes. Aagard v. Jorgensen (In re Anna Blackham Aagard Trust),
2014 UT App 269, ¶ 11, 339 P.3d 937. Because we conclude that
TBT has failed to demonstrate that the break in the limited-
access line does not constitute access for purposes of mitigation,
TBT’s challenges to the trial court’s rulings on these related
issues fail.
¶12 In an eminent domain action, Utah law establishes a right
to just compensation for property ‚actually taken‛ and for
property ‚not actually taken, but injuriously affected.‛ Utah
Code Ann. § 78B-6-512(1) (LexisNexis 2008). While the amount
owed to a landowner under this section is assessed as of the date
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UDOT v. TBT Property Management, Inc.
of the service of summons, the condemner may attempt to
mitigate or reduce damages by limiting the impact on the
landowner’s property:
The court or the jury shall consider mitigation or
reduction of damages in its assessment of
compensation and damages if, after the date of the
service of summons, the plaintiff:
(a) mitigates the damages to the property; or
(b) reduces the amount of property actually taken.
Id. Thus, ‚*t+he statute, in allowing the condemner to mitigate or
reduce its damages, aids in the determination of the
constitutional right to just compensation.‛ Utah Dep't of Transp.
v. Ivers, 2009 UT 56, ¶ 26, 218 P.3d 583 (citing Utah Const. art. I,
§ 22).
¶13 TBT first objected to UDOT’s motion to amend its
complaint, arguing that modification of the condemnation
resolution did not modify the property taken and was legally
insufficient to constitute a basis for mitigation of damages.
Thereafter, TBT moved the trial court for a ruling that the break
in the limited-access line did not constitute ‚access‛ to its
property as a matter of law. The trial court rejected both of TBT’s
challenges, ruling that ‚the right of access in the amended
complaint has been established by sufficient evidence now to
submit the question to the jury to decide whether or not UDOT
has, indeed, mitigated damages by providing access.‛ The trial
court thus rejected TBT’s argument that the break in the limited-
access line did not constitute access as a legal matter and
reserved for the jury the factual question of what effect UDOT’s
mitigation efforts would have on the severance damages.2
2. TBT argues at length that the trial court was obligated to
determine, as a matter of law, whether mitigation had occurred.
TBT claims that the court erroneously left to the jury the
question of ‚whether or not mitigation had occurred, as opposed
(continued…)
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UDOT v. TBT Property Management, Inc.
¶14 TBT argues that the trial court’s rulings are erroneous and
that TBT’s motion in limine should have been granted because,
‚*a+s a matter of law, the mere designation of a right-of-access to
the nearest roadway of said highway across a 66-foot section of
the right of way line should not have gone to the jury.‛ TBT cites
no legal authority to support the proposition that a right of
access of the sort at issue here cannot provide a basis for
mitigation of damages. Instead, TBT asserts, again without any
supporting legal authority, that the ‚evidence is overwhelming
that no legal access to the Pioneer Crossing roadway from the
TBT property presently exists.‛ TBT has not set forth any legal
standard by which we may analyze its claim that the break in the
limited-access line does not constitute ‚legal access.‛ Neither has
TBT demonstrated that ‚legal access‛ or ‚viable access‛ is the
appropriate legal standard by which to evaluate UDOT’s
mitigation efforts. These arguments, asserted without the
support of legal reasoning or authority, are inadequate to carry
TBT’s burden of demonstrating error in the trial court’s rulings.
See Angel Investors, LLC v. Garrity, 2009 UT 40, ¶¶ 35–36, 216 P.3d
944. While we understand that TBT believes more was required
of UDOT to provide a basis for mitigation of damages, that belief
alone, without the application of specific legal principles, is
insufficient to persuade us that the trial court erred in allowing
(…continued)
to the value of any mitigation.‛ We disagree. In denying TBT’s
motion in limine, the trial court implicitly and necessarily ruled
that the break in the limited-access line provided a legally
sufficient basis for the jury to determine the value of UDOT’s
mitigation efforts. The trial court explained that ‚the right of
access in the amended complaint has been established by
sufficient evidence now to submit the question to the jury.‛
Given the context of the trial court’s ruling, we read this
statement as a legal determination that UDOT had made a
sufficient showing that mitigation had occurred to send to the
jury the question of the value of that mitigation in relation to the
severance damages.
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UDOT v. TBT Property Management, Inc.
the jury to consider UDOT’s mitigation efforts in calculating
TBT’s severance damages.3 As a consequence, TBT’s claims that
the trial court erred in allowing UDOT to amend its complaint
and in denying TBT’s motion in limine fail. Because TBT’s
argument that the jury’s verdict was ‚not within the range of
credible evidence‛ is based on its assertion that the jury should
not have considered mitigation, that claim also fails.
II. Cross-examination of UDOT’s Appraisal Expert
¶15 TBT also argues that the trial court erred in limiting TBT’s
cross-examination of UDOT’s appraisal expert, J. Phillip Cook.
The trial court ruled that Utah Code section 78B-6-510 barred
admission of testimony regarding the value of the property
reached in an appraisal performed to obtain immediate
occupancy under that section. Thus, the trial court sustained
UDOT’s objection to TBT’s attempt to elicit the value of the
property Cook had assessed in his 2008 appraisal. We review the
trial court’s interpretation and application of a statute or a rule
of evidence for correctness. Utah Dep’t of Transp. v. 6200 S.
Assocs., 872 P.2d 462, 465 (Utah Ct. App. 1994). ‚‘While unduly
harsh limitation of a key expert witness can amount to
prejudicial error, the proper scope of cross-examination is within
the sound discretion of the trial court and should not be
disturbed absent a showing of abuse.’‛ Lawrence v. Mountain Star
3. TBT does cite a number of authorities discussing the offsetting
of severance damages by provision of a ‚special benefit‛ to the
landowner’s remainder land. See, e.g., Hempstead v. Salt Lake City,
90 P. 397 (Utah 1907); Territory of Hawaii v. Mendonca, 375 P.2d 6
(Haw. 1962). However, those cases deal with situations where
the condemner seeks to receive an offset against severance
damages caused by the taking by providing a benefit specific to
the remainder land. See Utah Code Ann. § 78B-6-511(4)
(LexisNexis 2008); Mendonca, 375 P.2d at 8–9; Hempstead, 90 P. at
400–01. Here, UDOT did not seek an offset to reduce payment
for damage done to the remainder property. Thus, the law
regarding offsets of special benefits has no application here.
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UDOT v. TBT Property Management, Inc.
Healthcare, 2014 UT App 40, ¶ 17, 320 P.3d 1037 (quoting
Whitehead v. American Motors Sales Corp., 801 P.2d 920, 923–24
(Utah 1990)).
¶16 If a condemning authority seeks immediate occupancy of
the condemned property, the condemner must ‚file with the
clerk of the court a sum equal to the condemning authority’s
appraised valuation of the property sought to be condemned.‛
Utah Code Ann. § 78B-6-510(3)(a) (LexisNexis 2008). ‚That
amount shall be for the purposes of the motion only and is not
admissible in evidence on final hearing.‛ Id. § 78B-6-510(3)(b).
Cook testified at trial regarding the fair market value of the
taken property and severance damages for the injury to TBT’s
remainder property. Cook performed two appraisals of TBT’s
property: one in 2008 and a second in 2009. The 2008 appraisal
was completed for purposes of UDOT’s motion for immediate
occupancy of the condemned property, and the 2009 appraisal
was completed for purposes of this litigation. During cross-
examination at trial, counsel for TBT asked Cook about the 2008
appraisal and his fair market valuation of the property at that
time:
Q: Mr. Cook, we were discussing your original
report that you furnished or the State furnished a
copy, and I notice in the report you eventually
arrived at a conclusion of the fair market value of
the property as of the date of that appraisal, and if I
read it correctly, you came up with a value in the
before condition of $5,938,035. Does that sound
correct?
Counsel for UDOT promptly objected to this line of questioning,
arguing that Utah Code section 78B-6-510 barred the admission
of the amount of the appraised valuation of the property at trial.
The trial court agreed with UDOT and ruled that Cook could not
testify as to the fair market value contained in the 2008 appraisal.
The trial court also granted UDOT’s motion to strike TBT’s
question and Cook’s response from the record and admonished
the jury to disregard that portion of the testimony.
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UDOT v. TBT Property Management, Inc.
¶17 Aside from the limitation on TBT’s ability to inquire as to
the amount of the 2008 appraisal, TBT has identified no other
restrictions the trial court placed on its cross-examination of
Cook. On appeal, TBT does not attempt to demonstrate that the
trial court’s interpretation or application of section 78B-6-510 is
erroneous by, for example, showing that the 2008 appraisal was
not prepared in support of a motion for immediate occupancy or
was not prepared for UDOT.4 Rather, TBT argues that its
questioning would have fallen outside of section 78B-6-510’s bar
because TBT did not seek to elicit the amount UDOT tendered to
obtain occupancy of the property but rather sought only to
question Cook about how he arrived at the fair market value of
the property in the 2008 appraisal. TBT argues that the question
posed to Cook was a legitimate attempt to impeach Cook on his
subsequent valuation and that it was therefore error for the trial
court to restrict its cross-examination on this point. However,
even if TBT did not seek to elicit testimony prohibited by section
78B-6-510 by asking Cook to confirm the amount of the 2008
valuation, TBT’s question placed before the jury the precise
information that section 78B-6-510 bars from evidence. The trial
court therefore did not abuse its discretion in striking the
testimony and ruling that TBT could not inquire as to the specific
valuation reached by Cook in his 2008 appraisal. See Lawrence,
2014 UT App 40, ¶ 17.
III. Jury View
¶18 Next, TBT asserts that it was error to permit the jury to
view the subject property. The trial court allowed the jury to see
the property ‚not for the purpose of receiving independent
evidence but, rather, to better understand and more fully
appreciate the evidence produced in open court.‛ The trial court
may order a jury view when ‚in the opinion of the court it is
proper for the jury to have a view of the property which is the
subject of litigation.‛ Utah R. Civ. P. 47(k). The trial judge is
4. TBT raised such arguments below but has not pursued them
on appeal.
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UDOT v. TBT Property Management, Inc.
invested with a ‚reasonable latitude of discretion‛ in
determining whether a jury view is appropriate. Utah State Road
Comm’n v. Marriott, 444 P.2d 57, 58 (Utah 1968). ‚When
reviewing a district court’s exercise of discretion, we will reverse
only if there is no reasonable basis for the district court’s
decision.‛ Townhomes at Pointe Meadows Owners Ass'n v. Pointe
Meadows Townhomes, LLC, 2014 UT App 52, ¶ 9, 329 P.3d 815.
¶19 TBT does not object to how the jury view was conducted
or claim that jurors were exposed to information not in evidence
during the view. Instead, TBT states that, given the dispute over
whether UDOT mitigated the damages to the remainder
property by providing an access, it ‚fail[s] to see how a view by
the jury could achieve any purpose other than to invite a false
and prejudicial element of implied validity of access.‛
¶20 But TBT’s claim that the jury view served no purpose
other than to prejudice the jury against TBT fails to address the
reasoning given by the trial judge in ordering the jury view.
After considering the parties’ arguments, the trial court ruled
that a jury view was appropriate:
I’m starting to think, ‚I think I better let them see
everything,‛ because this is a complicated case.
The diagrams just don’t give you an over—enough
picture of the property.
The photographs are limited in what they’re
looking at . . . . I’m going to allow this view,
because I didn’t get it till I went out there, honestly.
I was looking at diagrams and charts . . . . It’s a
complicated case, and it can’t really be fully
explained, the whole surrounding, by looking at
the maps . . . . We’re not looking at one piece of
ground. We’re looking at a lot of pieces and a lot of
circumstances . . . .
¶21 In light of this explanation by the trial court, we are not
convinced that the court’s decision to permit a jury view was
unreasonable. Indeed, the reason given by the trial court for the
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UDOT v. TBT Property Management, Inc.
viewing—to facilitate the jury’s understanding of ‚the whole
surrounding‛ in a complicated case—mirrors the reasoning of
our supreme court in approving a jury view in Utah State Road
Commission v. Marriott, 444 P.2d 57 (Utah 1968). There, the
supreme court observed that ‚the purpose of the jury’s
inspection was not only to see the property itself, but [to] see the
total picture of how it was situated with respect to its
surroundings.‛ Id. at 58. Thus, the Marriott court reasoned, there
was ‚nothing unreasonable or unjust in the court permitting *the
jury+ to see this property they were to evaluate.‛ Id. We reach the
same conclusion here. The trial court’s decision to allow the jury
to view the property to gain a better understanding of the
‚property they were to evaluate‛—an understanding that the
court believed could not be adequately conveyed by diagrams
and charts—is not unreasonable, and therefore TBT has not
demonstrated that the trial court abused its discretion in
ordering the jury view.
IV. Attorney Fees
¶22 Finally, TBT claims that it is entitled to attorney fees and
costs because UDOT acted in bad faith by filing its amended
complaint seeking to mitigate the damage to TBT’s property by
creating a break in the limited-access line. In ruling on UDOT’s
motion to amend below, the trial court specifically found that
‚UDOT did not file its Motion to Amend Complaint ‘as the
result of a dilatory motive, bad faith, or unreasonable neglect on
the part of the movant.’ The fact that an access road was added
to the plans years after the Agreement was signed does not, by
itself, demonstrate ‘dilatory motive, bad faith, or unreasonable
neglect.’‛
¶23 The trial court’s determination that UDOT did not act in
bad faith is a factual finding to which we defer unless that
finding is clearly erroneous. See Gallegos v. Lloyd, 2008 UT App
40, ¶ 15, 178 P.3d 922. Our role is not to reweigh the evidence,
but to determine only if the appellant has demonstrated a lack of
evidentiary support for the trial court’s findings. Barrani v.
Barrani, 2014 UT App 204, ¶ 24, 334 P.3d 994. TBT has made no
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UDOT v. TBT Property Management, Inc.
effort to demonstrate that the trial court’s finding is unsupported
by the evidence. Instead, TBT merely asserts that ‚*a+ll such
elements *of bad faith+ exist in this case‛ and asks us to render
our own decision that UDOT acted in bad faith, ‚*c+ontrary to
the trial court’s ruling.‛ We will not do so. TBT has not
demonstrated that the trial court’s finding that UDOT did not act
in bad faith is clearly erroneous. Accordingly, we decline to
award TBT fees and costs for this appeal or for the trial below.
¶24 Affirmed.
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