DocketNumber： Docket No. 311255
Citation Numbers： 301 Mich. App. 134
Judges： Borrello, Gleicher, Kelly
Filed Date： 5/21/2013
Status： Precedential
Modified Date： 9/9/2022
In this condemnation dispute, a jury awarded defendants, David Wagley, Barbara Wagley, Bank of Lenawee, and Pavillion Mortgage, $470,000 as just compensation for an avigation easement over the Wagleys’ residential property, plus interest, costs, and fees.
I. UNDERLYING FACTS AND PROCEEDINGS
This case arises from the county’s decision to expand and modify the Lenawee County Airport. The project began in approximately 1994 and evolved over several years. The 2003 revisions increased the length of Runway 23 from 4,000 to 5,000 feet and shifted the runway’s location. The additional length permitted larger corporate aircraft to regularly operate at the airport and generally enhanced aviation safety.
David and Barbara Wagley own a four-bedroom home on a 1.3-acre lot abutting the airport. Bank of Lenawee and Pavillion Mortgage each have an interest in the property as well.
Federal Aviation Authority (FAA) standards mandate the creation of a runway protection zone (RPZ) “begin[ning] 200 feet beyond the end of the area useable for takeoff or landing,” maintained to “enhance the protection of people and property on the ground.”
The avigation easement described in the declaration of taking permits the county “to keep the airspace above [certain] heights . .. clear and free” of obstructions including fences, trees, and buildings. The easement also governs activities on the land, prohibiting “any ground structures, natural growth, storage of equipment, vehicles or aircraft, flammable material storage facilities, or activities which encourage the congregation of people in the [RPZ] ... .” Attendant to the easement, the county prohibited the creation of “electrical interference with radio communication between” the airport and aircraft and activities “mak[ing] it difficult for fliers to distinguish between airport lights and others” or resulting in glare in fliers’ eyes or “otherwise . .. endangering] the landing, taking-off or maneuvering of aircraftU” Further, the easement forecloses on the encumbered land “the construction of new residences ... or places of public assembly, such as churches, schools, office buildings, shopping centers, and stadiums.”
Two interlocutory appeals brought the parties to this Court before trial commenced. In the first, the county challenged the trial court’s summary ruling that FAA regulations precluded residential uses within RPZs, resulting in a total taking of the Wagleys’ property as a matter of law. This Court reversed, holding that an
Extensive discovery ensued. In October 2008, the parties stipulated to the entry of an order reciting, “neither party shall illicit [sic] testimony from the [FAA] or the Michigan Department of Transportation Bureau of Aeronautics [DTBA].” After this order entered, the parties vigorously disagreed about the role FAA publications would play at the trial, leading to their return to this Court. See Lenawee Co v Wagley, unpublished opinion per curiam of the Court of Appeals, issued December 20, 2011 (Docket Nos. 302533, 302534, 302535, 302537, and 302538) (Wagley II).
Wagley II concerned the county’s objection to the trial court’s exclusion of four evidentiary items: an unsigned letter to United States Senator Carl Levin authored by FAA representative Christopher Blum; an affidavit ex
This Court held that the trial court had erred by denying the county’s motion to exclude the portion of Burgoyne’s appraisal “predicated on the assumption that FAA regulations prohibit residential use,” id. at 10, and affirmed the other evidentiary decisions. With respect to the Burgoyne appraisal, this Court emphasized that “ [i]t is entirely improper, under the law of the case doctrine, to allow the jury to hear testimony regarding an appraisal predicated on purported FAA regulations that prohibit residency in the RPZ.” Id. at 12. We held that the parties’ stipulation precluding the elicitation of testimony from the FAA or the DTBA governed the remaining evidentiary issues and affirmed the trial court’s in limine rulings. Id. at 13.
Trial began on June 4, 2012, and ended two days later. In his opening statement, counsel for the county introduced the avigation easement concept by specifically referring to the FAA:
*145 What an avigation easement is, it limits, in this case, growth of trees above a certain height that the FAA finds for safe clearance....
And as you’ll hear from our witnesses here, the FAA... controls all aspects of flight in this country. It’s amazing how many rules there are for pilots, but thank God this is a very safe industry. There’s lots of rules they’ve got to follow.
Now, the main purpose of the easement we took here and really the only proactive or the only thing we did was to cut down the trees that might go above these elevations. Now, the easement language here is a form document from [the Michigan Department of Transportation] and the FAA, it’s a form document that’s generally used in most all easements across the country.
Counsel then described the history of the airport’s runway renovations and discussed the function of an RPZ concept, again making referring to the FAA.
The county presented as its first witness Stephanie Ward, manager of aviation planning for Mead & Hunt, “a consulting engineering company.” The county had contracted with Mead & Hunt to develop and implement the airport expansion, and Ward worked directly on the project. Ward explained that the Wagley avigation easement was necessary to comply with FAA regulations requiring clear aircraft “approach slopes,” generally defined as the places where aircraft typically fly. She likened the approach slope to a roadway: “[T]he approach slope area is where you’re typically going to be driving, for example, the paved surfaces of the roadway.” In contrast, the “approach surface” is more akin to the “road right-of-way,” which must be “clear of signs, clear of trees, those types of things. So that way if you deviate from that area it’s going to be clear of obstructions.” According to Ward, the FAA generously defines the required clearance for approach slopes to
During cross-examination, Ward acknowledged that the FAA recommends “whenever possible” that an airport acquire and clear all obstructions from the RPZ “if practicable.” When obtaining ownership of the property is deemed “impracticable,” Ward agreed that avi-gation easements should be obtained to control the height of structures and vegetation in a RPZ. Although the county objected to this line of questioning, the trial court permitted it to continue because it focused on Ward’s opinions regarding the safety of the Wagley home given its placement within the RPZ.
Counsel for the Wagleys then confronted Ward with the following excerpt from an environmental assessment conducted in conjunction with the 1999 plan revisions:
“Problem: At this time the airport does not meet all the FAA - all FAA and RPZ standards. Currently there are incompatible land uses in the RPZ such as homes and there are numerous penetrations of the approach surfaces such as trees and parts of buildings.”
Without objection, Ward conceded that “the final environmental assessment was deeming the existence of
Q. And everybody knows what [RPZs] should be, there should be no houses in the [RPZs], that’s what should happen, right?
A. It’s the FAA design criteria, so yes.
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Q. Do you believe that incompatible uses within the RPZ include homes?
A. Yes.
Yet again without objection Ward conceded that the FAA “recommends that whenever possible the entire RPZ be owned by the airport and clear of all obstructions if practicable[.]”
At the conclusion of Ward’s testimony, the county requested that the trial court take judicial notice that the FAA had approved the planned runway expansion. The trial court refused to do so, relying in part on this Court’s opinions and the parties’ previous stipulation.
The Wagleys’ trial evidence focused on the contention that their home was unsafe because of its inclusion in the RPZ and therefore a total taking had occurred. Several witnesses testifying on the Wagleys’ behalf described the RPZ as the area in which most aviation accidents took place and opined that homes were incompatible with an RPZ. Pilot Carl Byers, one of the Wagleys’ experts, disputed the county’s claim that the airport was safer because of the runway alteration:
If all they had done was take the same size of runway designed for the same size of aircraft and move it further from the houses, then I could potentially see where that could be considered a safer condition. But that’s not what*148 happened. They moved it 500 feet further away, but then they also made the runway larger, they designed it for larger aircraft flying for lower approach minimums, faster speeds.... So just moving the threshold away from the houses they negated that by making it a much bigger - a runway attracts much larger, faster aircraft.
Byers opined that the existence of homes within the RPZ endangered residents and increased the likelihood of accidents. He represented that had his engineering consulting company been involved in this project it would have refused to “sign off” if houses remained in the RPZ. Similarly, engineer Jerald Seale expressed that when practicable, an airport should acquire all property within the RPZ. David Burgoyne, the Wagleys’ principal appraiser, summarized that based on his evaluation of the available expert reports regarding the aviation issues presented in the case, “it’s better if the property’s acquired in fee and the houses are removed.” In Burgoyne’s view, the avigation easement destroyed the practical value and utility of the Wagleys’ home.
The jury found that the county’s “acquisition of the easement destroyed the practical value or utility of the Wagley property” and determined just compensation to be $470,000.
II. ANALYSIS
A. EVIDENTIARY ISSUES AND JUDICIAL NOTICE
The county raises 10 issues on appeal. The principal thrust of several arguments is that contrary to the law of the case, the trial court “repeatedly permitted [the Wagleys] to introduce testimony, that according to FAA regulations, the [c]ounty should have taken the house due to its location in the RPZ.” The trial court compounded this error, the county asserts, by refusing to take judicial notice of this Court’s prior ruling that the
Whether the trial court followed this Court’s rulings on remand presents a question subject to de novo review. Augustine v Allstate Ins Co, 292 Mich App 408, 424; 807 NW2d 77 (2011). “Similarly, this Court reviews de novo the determination whether the law-of-the-case doctrine applies and to what extent it applies.” Id. Judicial notice is discretionary, MRE 201(c), and we review for an abuse of that discretion a trial court’s decision whether to take judicial notice, Freed v Salas, 286 Mich App 300, 341; 780 NW2d 844 (2009). “An abuse of discretion occurs when a court selects an outcome that is not within the range of reasonable and principled outcomes.” Carlson v Carlson, 293 Mich App 203, 205; 809 NW2d 612 (2011).
“The law of the case doctrine holds that a ruling by an appellate court on a particular issue binds the appellate court and all lower tribunals with respect to that issue.” New Props, Inc v George D Newpower, Jr, Inc, 282 Mich App 120, 132; 762 NW2d 178 (2009) (quotation marks and citation omitted). “[I]f an appellate court has passed on a legal question and remanded the case for further proceedings, the legal questions thus determined by the appellate court will not be differently determined on a subsequent appeal in the same case where the facts remain materially the same.” Id. (quotation marks and citation omitted; alteration in original). The doctrine is applicable “only to issues actually decided, either implicitly or explicitly, in the
We begin by reviewing the holdings in Wagley I and Wagley II that form the law of the case. In Wagley I, this Court held that as a matter of law, FAA regulations did not require fee simple ownership of all property within an RPZ. Wagley I, unpub op at 5. Thus, an avigation easement did not necessarily result in a total taking. Id. at 8. In Wagley II, this Court considered evidentiary issues concerning FAA requirements. First, this Court ruled that the parties’ stipulation prohibiting testimony from the FAA or the DTBA precluded the introduction of various written statements made by FAA employees. Wagley II, unpub op at 13-14. Second, we reiterated Wagley Vs ban on testimony or evidence representing that FAA regulations prohibited residential use of property in the RPZ. Id. at 10.
Thus, in its prior opinions, this Court barred (1) evidence predicated on an assumption that FAA regulations required a total taking or precluded homes in the RPZ and (2) evidence contravening the parties’ stipulation excluding “testimony” from the FAA. This Court’s opinions did not bar all reference to the FAA or exclude the admission or use of FAA regulations. In its brief on appeal, the county correctly observes that
the parties have loosely referred to FAA documents as “regulations.” ... In actuality, most all of the documents are FAA Advisory Circulars which “[p]rovide[] guidance such as methods, procedures, and practices acceptable to the [FAA] Administrator for complying with regulations and grant requirements.... They do not create or change*151 a regulatory requirement.” FAA Order 1320.46C. [All but third alteration in original.][5 ]
And without question, both sides used FAA documents to suit their own purposes. During her direct examination, Ward testified that the size and shape of the RPZ were “predicated on FAA design criteria. . . .” She explained that when the county opted to build a longer runway, the FAA changed the size and shape of the RPZ. Those FAA-mandated changes, Ward continued, had to be accommodated in the airport’s layout and design, and the newly created RPZ engulfed the entire Wagley property.
References to FAA recommendations continued during Ward’s cross-examination:
Q. The FAA recommends that whenever possible the entire RPZ be owned by the airport and clear of all obstructions if practicable?
A. Yes.
Q. Where ownership is impracticable, avigation easements are recommended to obtain the right to maintain the height of structures and vegetations [sic] within the RPZ footprint?
A. Yes.
Q. Now, you say that they recommend where it’s practicable that they own the RPZ and they use avigation easements where it’s impracticable, correct?
A. Correct.
Q. And when I deposed you, you did not —
Mr. Strauss:[6 ] Your Honor, I would just place an objection on the record with that. These issues of determination*152 are made solely by the FAA and that determination has already been made and I don’t believe it’s a part of this case anymore, that determining — that determination has been made, it’s certainly their decision to make and they’ve made it and it’s the law of the case.
The Court: Well, I don’t think we’re talking about - they’re not involved in this discussion. This is her opinion. She’s your expert that said these things should be done. Didn’t she?
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Mr. Strauss: Um, with all due respect, yes, Your Honor. It’s not her decision to make. I think that’s been her testimony throughout. It’s the FAA’s decision, it’s their game, we go to them and say is it fíne.
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Mr. Strauss: And they said yes. And that was the subject of — of —
The Court: Okay. But this is a cross-examination of her and her determinations and the things that you had her testify to as to why this is reasonable and not reasonable. So I think he can ask her this in the context of it’s not — not to do with the FAA, it’s her decision.
The county has not identified any testimony or evidence introduced by the Wagleys suggesting that the FAA required the county to obtain fee simple ownership of the Wagley property. Rather, both sides quarreled about whether the FAA recommended to airport planners that homes be moved outside the RPZ, despite that the FAA permitted their presence.
Moreover, the excerpted portions of the testimony illustrate that it would have been impractical for the parties to have tried this case in an FAA vacuum, without reference to any of the regulations, recommendations, circulars, and statements governing runways
Nor did the trial court err by denying the county’s request that it “take judicial notice that the FAA in fact did approve the easements in this case, letting the houses remain.” That the FAA had approved the easement was squarely before the jury from the outset. On redirect examination just before making this request, counsel for the county established that the FAA would not have approved the funding for the airport expansion if it had believed that FAA requirements had been disregarded:
Q. Now, I believe some questions were asked about whether the county commissioners made any decisions ... regarding... whether or not to acquire properties [in] fee, the whole property wdthin the [RPZ]. Do you recall that question?
A. Yes.
Q. . .. Did the county commissioners have any input into that final decision?
A. A recommendation was made. I mean they’re the final acceptors of the grant, so they were agreed....
Q. But what is the role of the FAA with regard to that? Did the FAA make the decision, funding decisions as to whether we’ve complied with their requirements?
*154 A. Yeah, the FAA and the [DTBA] wouldn’t issue a grant if they didn’t support that decision.
Q. And just based, of course, on your experience, which is all you can do, your professional experience, does the FAA, would they approve of this approach and the situation at the airport if they believed it was unsafe?
A. No, they would not of.
While the testimony of both sides’ witnesses frequently blurred the distinction between an RPZ and an avigation easement, the Wagleys never challenged that the FAA had approved the project, including the easement. The evidence presented by both sides presumed that the FAA had approved the entire project, including the avigation easement.
Moreover, given this Court’s opinion in Wagley II, the trial court did not abuse its discretion by refusing to take judicial notice of the FAA’s approval of the avigation easement. In Wagley II, we highlighted that the parties’ stipulation precluded them from eliciting FAA testimony. Specifically, this Court upheld the exclusion of two documents (the Blum letter and the Porter affidavit) that apparently represented that the FAA had approved the easement. The trial court expressed that “any reference to the FAA decisions and all of that was to stay out of this case,” quoting aloud the following language from Wagley II:
In our view, after this Court’s earlier opinion, the five cases should have come down to having a jury determine just compensation based on a diminution of value as caused by a property being encumbered by an avigation easement,*155 with the jury still having the ability to determine that a total taking effectively occurred as caused by an easement, but not based on FAA regulations. [Wagley II, unpub op at 13 (emphasis added).]
While judicial notice of the FAA’s approval of the easement probably would not have contravened the law of the case, in light of our opinions we cannot fault the trial court for hewing a narrower course. Accordingly, we reject as legally and factually unsound the county’s argument that the trial court permitted the Wagleys to introduce evidence contravening the law of the case.
B. WHETHER THE WAGLEYS IMPROPERLY BASED THEIR CLAIM ON PLACEMENT IN THE RPZ
In somewhat related claims, the county asserts that the trial court incorrectly permitted the Wagleys to structure their total-taking claim around their presence in the RPZ rather than the diminution of value resulting from the avigation easement.
During the redirect examination of defense witness Searles, the following colloquy ensued:
Q. Let’s go back to the 1994 airport layout plan. If they had intended for the houses to be in the RPZ ultimately in 1994 ..., that’s when they would have had to pay them for the just compensation that we’re here talking about today?
A. That is correct.
Mr. Strauss: I’m going to object. Calls for a legal conclusion, Your Honor. I’d ask that that answer be stricken. As far as the determination of just compensation from the feds, I don’t know — it’s a legal conclusion.
Following the trial court’s request that defendants’ counsel repeat the question before ruling on the county’s objection, the disagreement continued:
*156 Mr. Bagne:[8 ] The question -- the gist of the question was if the ultimate intention ... of the 1994 airport layout plan that houses would be ultimately remaining in the RPZ, that’s when they would have to pay just compensation for acquiring those rights.
The Court: So you mean that day or that time period?
Mr. Bagne: Yes.
The Court-. I think this has been asked of other people as well, Counsel, in a different way.
Mr. Strauss: Um —
The Court: That if you put something in — I think the question goes to the fact that if you rezone something so they can’t do something but you don’t bother to tell them about it, technically that’s the time of the taking. I think [that is] what he’s getting at, isn’t it, Mr. Bagne?
Mr. Bagne: Well, the gist of it, Your Honor, and Miss Ward testified that they would have had to buy property rights at that time.
The Court: Sure. She’s already said something like that.
Mr. Strauss: May I respond, Your Honor?
The Court: Sure.
Mr. Strauss: Okay. That — it’s just not true. It’s a legal conclusion. It’s not true. The federal government designates [RPZs] in the state where the airport cannot designate them.
The Court: I didn’t say that.
Mr. Strauss: Ultimately - so it would not be - it would not be a taking. And if it was a taking, you would have to sue inverse against the federal government.
The Court: Your own witness testified to this. Does that make any difference to you? He’s simply following up on*157 that. It’s already in the record, Counsel. Thank you. For whatever it’s worth, I’m not sure how much if anything, but she did say that.[9 ]
By Mr. Bagne:
Q. If you — if you’re going to put -- if an airport that you’re working for is going to put somebody in a RPZ, do they have to acquire property rights?
A. Yes.
Q. And when they acquire those property rights either -- that’s the point in time where the property owner has a right to be - receive whatever just compensation they’re entitled to receive under whatever law that is?
A. Yes, sir.
Q. So you can’t just go put somebody in a RPZ and then come back later and say we’re not going to pay you for it because it was in the plans from before?
A. That is correct.
The county contends that during this exchange the trial court incorrectly “ruled” that the taking occurred when the Wagleys’ property was placed in the RPZ. Without citing specific transcript excerpts, the county
We have previously acknowledged that the witnesses’ testimony frequently blurred the distinction between an RPZ and an avigation easement. While the easement and the RPZ are separate legal concepts, the evidence supported that the FAA required the county to obtain an avigation easement precisely because the Wagleys’ property was in the RPZ. Thus, the RPZ created the need for the easement, and the easement included the land and airspace contained within the RPZ. Given the interrelationship between the avigation easement and the RPZ, the experts’ use of the terms somewhat interchangeably is not surprising.
Despite the occasionally imprecise language, we find no merit to the county’s claim that the trial court permitted the jury to award damages for placement of the home in the RPZ. The trial court instructed the jury that
the county has acquired through this condemnation proceeding certain limited rights in the Wagleys’ land. The rights being acquired are as follows: The right to obtain and preserve for the use and benefit of the public a right of free and unobstructed flight for aircraft landing upon, taking off from, or maneuvering about the airport;
An easement and right-of-way for the benefit of the general public at large for the free, unobstructed passage of aircraft, by whomever owned or operated, in and through the air space over and across those parts of the Wagleys’ lands in the air space that lays above the heights described and depicted in the — in the tables that you saw as exhibits.
The trial court read to the jury the entire description of the avigation easement, and taken as a whole, the
Question 1: Do you believe that the acquisition of the easement destroyed the practical value or utility of the Wagley’s [sic] property? Circle one: YES NO
If the answer is “YES”, how much Just Compensation must Lenawee County pay the Wagleys for the acquisition of the easement? Your verdict must be between $470,000 and $570,000._.
If you answered Question 1 as “NO”, then answer Question 2.
Question 2: How much Just Compensation must Lenawee County pay the Wagleys for the acquisition of the easement? You may select any number between $50,535 and $540,000:_.[10 ]
Because juries are presumed to understand and follow their instructions, Bordeaux v Celotex Corp, 203 Mich App 158, 164; 511 NW2d 899 (1993), the county cannot demonstrate that the references to the RPZ throughout the trial testimony improperly influenced the jury’s deliberations or its ultimate verdict.
The county further suggests that because it lacks any responsibility for the dimensions of the RPZ (attributing that duty to the FAA alone), the Wagleys’ eviden-tiary references to the RPZ called into question the propriety of state court jurisdiction. The county initiated this action in the state circuit court under the auspices of state law and did not, at any point in the
C. THE TESTIMONY OF SEARLE AND BYERS
Next, the county contends that the trial court erred by permitting defense witnesses Searle and Byers “to give their opinions of what they believe the FAA should have done,” and by allowing Searle to testify “that the [c]ounty would have to pay just compensation in 1994 if the [cjounty intended for the house to be located in the RPZ.”
The county correctly asserts that the trial court erred by permitting Searle and Ward to opine regarding when a taking occurs. “[T]he opinion of an expert may not
D. McVEIGH’S APPRAISAL
The county next asserts that the trial court erred by permitting defense expert Franklin McVeigh to testify without first conducting a hearing in accordance with Daubert v Merrell Dow Pharm, Inc, 509 US 579; 113 S Ct 2786; 125 L Ed 2d 469 (1993). McVeigh testified as a Realtor regarding the effect of the airport and easement on the marketability of the Wagleys’ property and the disclosures required in real estate transactions. This Court reviews for an abuse of discretion the “qualification of a witness as an expert and the admissibility of the testimony of the witness . .. .” Surman v Surman, 277 Mich App 287, 304-305; 745 NW2d 802 (2007).
MRE 702 “requires trial judges to act as gatekeepers who must exclude unreliable expert testimony.” Staff Comment to 2004 Amendment of MRE 702, citing Daubert and Kumho Tire Co, Ltd v Carmichael, 526 US 137; 119 S Ct 1167; 143 L Ed 2d 238 (1999). The purpose of a Daubert hearing is to filter out unreliable expert evidence. Chapin v A & L Parts, Inc, 274 Mich App 122, 139; 732 NW2d 578 (2007). In Chapin, this Court explained:
[SJcience is, at its heart, itself an ongoing search for truth, with new discoveries occurring daily, and with regular disagreements between even the most respected members of any given field. A Daubert-type hearing of this kind is not a judicial search for truth. The courts are unlikely to be capable of achieving a degree of scientific knowledge that scientists cannot. An evidentiary hearing under MRE 702 ... is merely a threshold inquiry to ensure that the trier of fact is not called on to rely in whole or in part on an expert opinion that is only masquerading as science. The courts are not in the business of resolving scientific disputes. The only proper role of a trial court at a Daubert hearing is to filter out expert evidence that is unreliable, not to admit only evidence that is unassailable. The inquiry is not into whether an expert’s opinion is necessarily correct or universally accepted. The inquiry is into whether the opinion is rationally derived from a sound foundation. Ud.\
“The Supreme Court has held that the principles articulated in Daubert . . . apply to ‘all expert testimony,’ although the lower courts have flexibility in the
McVeigh’s videotaped deposition testimony was played for the jury over the county’s objections asserting the need for a Daubert hearing. McVeigh did not offer “scientific” expert testimony; rather, his testimony constituted “other specialized knowledge.” MRE 702; see Surles, 474 F3d at 295. “In this context, the factors enumerated in Daubert cannot readily be applied to measure the reliability of such testimony.” Surles, 474 F3d at 295, citing Kumho Tire, 526 US at 150.
McVeigh’s testimony was limited to the marketability of the property and the necessity for disclosures when attempting to sell the Wagleys’ property. The Wagleys explored in detail McVeigh’s employment history, education, experience, and professional associations as a realtor to provide a foundation for the opinions rendered. Through their questioning, the Wa-gleys established the basis for McVeigh’s proffered testimony and expertise and its direct relationship to the facts of the case. Our review of the deposition transcript demonstrates that McVeigh sufficiently ex
The county’s assertion of error premised on the Wagleys’ alleged failure to comply with MCR 2.315(F)(1) is disingenuous. The county was aware that the videotape of the deposition would be played for the jury, stipulated that portions would be muted, and did not object to the presentation of the deposition testimony to the jury on this basis. Accordingly, the county has failed to demonstrate the existence of plain error affecting its substantial rights. See Wolford v Duncan, 279 Mich App 631, 637; 760 NW2d 253 (2008).
E. BURGOYNE’S TESTIMONY
Next, the county contends the trial court erred by permitting defense witness Burgoyne to testify that the easement permitted pilots to fly three feet above the Wagleys’ roof.
An issue must have been raised before and addressed and decided by the trial court to be deemed preserved for appellate review. Hines v Volkswagen of America, Inc, 265 Mich App 432, 443; 695 NW2d 84 (2005). The county failed to preserve this issue for review by objecting to this evidence. Generally, a trial court’s decision regarding the admissibility of testimony is reviewed by this Court for an abuse of discretion. Phillips v Deihm, 213 Mich App 389, 401; 541 NW2d 566 (1995). This Court reviews unpreserved evidentiary issues, however,
The county asserts that navigable airspace is defined by the FAA and was not contingent on the easement because the FAA permits pilots to maintain any altitude necessary for landing or takeoff. In her direct testimony, Ward initially addressed the possible height of obstructions affected by the easement. Ward noted that before the easement the Wagleys’ chimney constituted “a slight penetration” in the approach area and that “[b]ecause of the change in the elevations it went from - the allowable height shifted to exactly the - the chimney is the controlling feature of the property.” Ward acknowledged that the easement and airport authority could not “control where a pilot flies.” She further testified that the “FAA has defined a point of clearance, if you will, that they want to have where there’s nothing penetrating above that so that if a plane were to operate below the typical approach, they’re not going to run into anything.”
Similarly, another witness for the county, James Wise, testified as follows:
Q. The [FAA] regulations, ... what do they state with regards to the heights of the plane that are permissible when it’s landing or taking off at an airport?
A Any altitude that’s necessary to safely get the airplane into the air or back onto the ground.
On cross-examination, Andrew Chamberlain, the county’s appraiser, opined in response to an exhibit:
Q. Do you know what the height is . .. relative to the top of the Wagley’s [sic] house after the taking?
A. Within a few feet.
Q. And how many approximately feet would that be?
A. Less than ten.
Q. Now, you referenced interrogatory answers that says [sic] it’s two feet when your [sic] — above the house, when you had it three feet in your report. Is that Interrogatory 18 and 19?
A. Yes. Interrogatory 18 says:
“What is the lowest point of the avigation easement as it passes over defendants’ residence.”
Their answer is two feet.
And 19 says:
“What’s the lowest point of the avigation easement when it passes over the chimney?”
And the answer is zero feet. I was worried about Santa Claus.
The county did. not object to this testimony.
We find it ironic that the county now contends that testimony or evidence pertaining to the height of the easement over the Wagleys’ property is irrelevant because it is the FAA that controls where pilots fly, while otherwise protesting the admission of any evidence even hinting at FAA rules. That observation aside, the county indisputably initiated the discussion of heights through its questioning of Ward and Wise. Chamberlain, the county’s own expert, opined that flights could come within 10 feet of the Wagleys’ roof. The respective experts offered conflicting opinions and interpretations regarding the effect of the easement. Disagreements pertaining to an expert witness’s interpretation of the facts are relevant to the weight of that testimony and not its admissibility. Surman, 277 Mich App at 309. We find no error.
The county challenges the trial court’s award of interest on the just compensation award to the Wagleys pursuant to MCL 213.65 of the UCPA. In general, we review de novo an interest award. Farmers Ins Exch v Titan Ins Co, 251 Mich App 454, 460; 651 NW2d 428 (2002). We also review de novo issues of statutory interpretation. Driver v Naini, 490 Mich 239, 246; 802 NW2d 311 (2011).
MCL 213.65 provides for the computation of interest on a just-compensation award as follows:
(1) The court shall award interest on the judgment amount or part of the amount from the date of the filing of the complaint to the date that payment of the amount or part of the amount is tendered. However, if a portion of the judgment is attributable to damages incurred after the date of surrender of possession, the court shall award interest on that portion of the judgment from the date the damage is incurred.
(2) Interest shall be computed at the interest rate applicable to a federal income tax deficiency or penalty. However, an owner remaining in possession after the date that the complaint is filed waives the interest for the period of the possession.
(3) If it is determined that a de facto acquisition occurred at a date earlier than the date of filing the complaint, interest awarded under this section shall be calculated from the earlier date. [Emphasis added.]
At a July 2, 2012 posttrial hearing, defense counsel sought interest on the $470,000 just compensation award, which award represented the property’s value as affected by the county’s possession of the easement. Counsel noted that the court had entered an order on November 21, 2007, allowing the county to take possession of the easement and therefore interest should be
The Court will order interest from November 21st, 2007, which was the possession date. I believe the [Wag-leys’] position is correct. .. that the actual interest of the property as determined by the jury, the full amount of it was from that date and the mere fact that someone may have been there one or all of these people or others - of course, you can’t live there because you can’t have people congregate there. Who knows. But anyway, so that would be the date and that’s an issue that the higher courts can resolve. So it will run from that date.
Although inarticulately stated, the trial court’s ruling seemed to be that the imposition of the easement on November 21, 2007, amounted to a de facto taking of the entire property because the inability of people to congregate on the land rendered it uninhabitable. As noted by the trial court at the hearing, there is absolutely no record information regarding whether the Wagleys remained in residence.
The county continues to argue that the Wagleys were entitled to no interest on the just compensation award because they retained possession of the residential property, whether they used it or not, losing only the right to use the airspace beyond a certain height. While we do not agree with the trial court’s reasoning in awarding interest, the county’s theory also does not comport with the plain language of MCL 213.65.
The county relies on two cases in support of its contention that the condemning agency’s “possession” of the property must amount to a complete taking. In Dep’t of Transp v Jorissen, 146 Mich App 207; 379 NW2d 424 (1985), the plaintiff took the entirety of the defendants’ land. The defendants had previously harvested fruit for a profit from trees on the property and had platted the land to sell as a subdivision. The defendants attempted to collect interest on the just compensation award from the date on which the plain
This Court rejected the defendant property owners’ arguments, noting that a condemning agency cannot take possession of another’s property until a court orders the landowner to surrender possession. Id. at 213. “Until that time, the owner of the property retains possession of the property.” Id. And during the time the property owners retain possession of the land, they “waive [] their right to interest on the judgment for that period.” Id.
The Jorissen Court also rejected the defendant landowners’ challenge that they did not actually “remain in possession” of the property in the period after the complaint was filed but before the order transferring possession was entered. Id. at 214. This Court held:
This argument confuses the right of possession with the notion of actual presence on the land. Defendants could not, by their temporary absence, deprive themselves of possession of the land. Defendants had the right to occupy and use the premises. They were in possession. ...
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The term “property” includes, in addition to title and possession, “the rights of acquisition and control, the right to make any legitimate use or disposal of the thing owned, such as to pledge it for a debt, or to sell or transfer it”. Until May 15, 1981, defendants were free to enter the premises and use the property.
*171 We conclude that defendants may have interest on the judgment only from May 15,1981, when they were ordered to surrender possession to plaintiff. [Id. at 214-215 (citations omitted).]
In Dep’t of Transp v Pichalski, 168 Mich App 712, 715-717; 425 NW2d 145 (1988), the plaintiff eventually took the entirety of three lots owned by three separate defendants. In the beginning, however, the plaintiff took only the front 60 feet of each lot abutting Ford Road. Id. The plaintiff challenged the trial court’s decision to award statutory interest to the defendants for the time “they remained in possession” of the front portions of their lots. Id. at 722. This Court noted that the defendants were not entitled to any interest in relation to the back portions of their lots because the plaintiff did not take possession of that portion of the property until the conclusion of the just compensation proceeding. This Court approved the trial court’s award of interest connected to the front portions of those lots, but only because of the date on which the defendants actually ceded possession to the plaintiff. Id. at 723-724. The county focuses its argument here on the fact that the Department of Transportation took actual possession of the land in Pichalski. Yet we find more instructive that the Pichalski Court approved an approach by which the property was divided and interest was awarded when only a portion, rather than the entirety, of the property was taken.
The current case is more akin to Pichalski than Jorissen in that the county did not take the entirety of the Wagleys’ property and yet the trial court awarded interest under MCL 213.65. We affirm that decision. As noted by the partial dissent, the county’s taking through the avigation easement did not permanently deprive the Wagleys of the entirety of their property. The circuit court’s November 21, 2007 order did, how
G. HYPOTHETICAL AWARD OF 125 PERCENT OF THE PROPERTY’S VALUE IN THE EVENT OF A COMPLETE TAKING
In the trial court’s judgment setting the amount of just compensation for the taking of the avigation easement, the court made the following ruling regarding additional damages:
IT IS FURTHER ORDERED that unless an appeal is taken, pursuant to MCL 213.54(1) [the county] shall file a notice with the Court indicating whether it elects to receive title and possession of the remainder of the parcel within thirty-five (35) days of the entry of this Judgment. If an appeal occurs, [the county] shall make its election within 35 days of an order remanding the matter to the trial court. The lack of any notice shall be deemed the waiver of such an election. If [the county] elects to take title, issues relating to this election and possession of the Subject Property shall be addressed by further order of the Court. If [the county] elects to take title, [the county] shall pay [the Wagleys] an additional $117,500 pursuant to MCL 213.23. [Emphasis added.]
Any public corporation or state agency is authorized to take private property necessary for a public improvement or for the purposes of its incorporation or for public purposes within the scope of its powers for the use or benefit of the public and to institute and prosecute proceedings for that purpose. When funds have been appropriated by the legislature to a state agency or division thereof or the office of the governor or a division thereof for the purpose of acquiring lands or property for a designated public purpose, such unit to which the appropriation has been made is authorized on behalf of the people of the state of Michigan to acquire the lands or property either by purchase, condemnation or otherwise. For the purpose of condemnation the unit may proceed under the provisions of this act. [MCL 213.23, as amended by 1966 PA 351.]
On September 21, 2006, two months before the trial court granted the county’s request to take the easement, the Legislature enacted 2006 PA 367 and 2006 PA 368, adding several provisions to the statute, including subsection (5), which provides:
If private property consisting of an individual’s principal residence is taken for public use, the amount of compensation made and determined for that taking shall be not less than 125% of that property’s fair market value, in addition to any other reimbursement allowed by law. In order to be eligible for reimbursement under this subsection, the individual’s principal residential structure must be actually taken or the amount of the individual’s private property taken leaves less property contiguous to the individual’s principal residential structure than the minimum lot size if the local governing unit has implemented a minimum lot size by zoning ordinance. [Emphasis added.]
This provision was effective December 23, 2006, one month after the entry of the court’s order. The trial
Whether a statute applies retroactively presents a question of statutory construction that we consider de novo. Frank W Lynch & Co v Flex Technologies, Inc, 463 Mich 578, 583; 624 NW2d 180 (2001). “Under Michigan law, the general rule of statutory construction is that a new or amended statute applies prospectively unless the Legislature has expressly or impliedly indicated its intention to give it retrospective effect.” Seaton v Wayne Co Prosecutor (On Second Remand), 233 Mich App 313, 316; 590 NW2d 598 (1998).
In determining whether a statute should be applied retroactively or prospectively only, “[t]he primary and overriding rule is that legislative intent governs. All other rules of construction and operation are subservient to this principle.” Moreover, “statutes are presumed to operate prospectively unless the contrary intent is clearly manifested.” This is especially true if retroactive application of a statute would impair vested rights, create a new obligation and impose a new duty, or attach a disability with respect to past transactions. [Frank W Lynch & Co, 463 Mich at 583 (citations omitted).]
“However, an exception to the general rule exists where a statute is remedial or procedural in nature.” Seaton, 233 Mich App at 317. A statute is remedial in nature when it corrects an existing oversight in the law, redresses an existing grievance, introduces regulations conducive to the public good, or intends to reform or extend existing rights. Tobin v Providence Hosp, 244
“Legislation which has been regarded as remedial in its nature includes statutes which abridge superfluities of former laws, remedying defects therein, or mischiefs thereof implying an intention to reform or extend existing rights, and having for their purpose the promotion of justice and the advancement of public welfare and of important and beneficial public objects, such as the protection of the health, morals, and safety of society, or of the public generally. Another common use of the term ‘remedial statute’ is to distinguish it from a statute conferring a substantive right, and to apply it to acts relating to the remedy, to rules of practice or courses of procedure, or to the means employed to enforce a right or redress an injury. It applies to a statute giving a party a remedy where he had none or a different one before.”
“The ultimate purpose of the [UCEA] is to ensure the guarantee of just compensation found in Const 1963, art 10, § 2, which provides, ‘Private property shall not be taken for public use without just compensation therefor being first made or secured in a manner prescribed by law.’ ” Dep’t of Transp v Frankenlust Lutheran Congregation, 269 Mich App 570, 576; 711 NW2d 453 (2006). MCL 213.23(5) created a new right in achieving this purpose—the right to an enhanced just compensation award that did not exist before. It also imposed a converse duty on the condemning agency to remit an enhanced award. Although subsection (5) is
Further, although “the Legislature has shown on several occasions that it knows how to make clear its intention that a statute apply retroactively,” id. at 584, the Legislature did not do so in MCL 213.23. See Johnson v Pastoriza, 491 Mich 417, 432; 818 NW2d 279 (2012) (“Had the Legislature intended that 2005 PA 270 apply retroactively, the Legislature could readily have provided that ‘[t]his amendatory act applies to a cause of action arising on or after [the date of the last prior amendment].’ ”). While the Legislature gave the amen-datory acts adding subsection (5) immediate effect, this does not suggest an intent to make the addition retroactively applicable, id. at 430, particularly given the fact that the acts themselves have an internal effective date that is three months later. “ ‘[Providing a specific, future effective date and omitting any reference to retroactivity supports a conclusion that a statute should be applied prospectively only.’ ” Id. at 432 (citations omitted).
Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
BORRELLO, EJ., concurred with GLEICHER, J.
“Avigation” refers to “aerial navigation.” The Random House Dictionary of the English Language, Second Edition Unabridged (1987). An avigation easement permits unimpeded aircraft flights over the servient estate. Lenawee Co v Wagley, unpublished opinion per curiam of the Court of Appeals, issued December 20, 2011 (Docket Nos. 302533, 302534, 302535, 302537, and 302538), p 3 n 1, quoting Black’s Law Dictionary (7th ed), p 527.
For ease of reference, we will refer to the collective defendants simply as “the Wagleys.”
FAA Policy and Procedures Memorandum, Airports Division, No. 5300.IB, issued February 5, 1999, ¶¶ 2(j) and 3(b).
This Court explained that Burgoyne had prepared three appraisals, one addressing market value before the taking, one addressing market value after the taking assuming continued occupancy, and the third addressing market value after the taking assuming that residential use was prohibited by the FAA. Wagley II, unpub op at 9.
For example, we note that the parties stipulated to the admission of exhibit M, an FAA “Advisory Circular” concerning “hazardous wildlife attractants on or near airports.”
Gary D. Strauss served as the county’s trial counsel.
The county also challenged the trial court’s “refusal” to give a supplemental instruction to the jury on this issue when the panel submitted a question during deliberations. Yet the parties discussed the instruction with the court, and neither objected when the court chose the instruction’s content.
Stephon B. Bagne served as trial counsel, along with Bruce H. Benz, for the collective defendants.
The testimony by Ward that the trial court referred to occurred during cross-examination:
Q. So you’re saying that property owners that would he chucked in a RPZ wouldn’t know it, nobody would tell them about it, and [they] wouldn’t get paid any just compensation at that point in time —
A. Happens all the time.
Q. — until such time as you come to obtain the appropriate property rights through the project?
A. Correct. When we find an obstruction.
Q. And when you obtain those property rights, that’s when they get paid for being in the RPZ?
A. Correct.
The county stipulated to the instructions provided to the jury and approved the verdict form and the exhibits sent back with the jury for their deliberations.
The county never filed a motion to exclude testimony by Byers and raised no objections during his testimony, thus forfeiting this issue with regard to Byers.