Date: 12-09-2008
Case Style: State of Oklahoma, ex rel. Department of Transporation v. Charles G. Perdue, et al.
Case Number: 2008 OK 103
Judge: Kauger
Court: Supreme Court of Oklahoma on appeal from the District Court of LeFlore
Plaintiff's Attorney: Barry K. Roberts, Norman, Oklahoma, for Plaintiff/Appellee.
Defendant's Attorney: K. Ellis "Kim" Ritchie, Ryan M. Roberts, Pryor, Oklahoma, for Defendants/Appellants.
Description: ¶1 The issue presented is whether the trial court erred by confirming the amended report of the commissioners, despite the fact that ODOT filed an exception requesting the amended report nearly two years after the statutory filing period had expired. We hold that it did.
FACTS
¶2 On July 2, 2004, the Oklahoma Department of Transportation (ODOT) filed a petition to condemn two parcels of real property, about one and a half acres in total, along U.S. Highway 59 in LeFlore County in order to widen the highway. The property was owned by Charles G. Perdue and Linda Sharon Perdue (appellants/Perdues). On August 12, 2004, three commissioners were appointed and instructed. The commissioners filed their first report on March 3, 2005, estimating just compensation to be $9,500.
¶3 By statute, if a jury's award exceeds the commission's award by at least ten percent, the landowner is entitled to reasonable attorney, appraisal, engineering, and expert witness fees actually incurred.1 If a jury's award does not exceed the commission's award, all costs may be taxed against the landowner.2 Operating under these parameters, ODOT filed a demand for jury trial on March 9, 2005. The Perdues filed a demand for jury trial on April 26, 2005, and hired attorneys, appraisers, engineers, and other experts to challenge the commissioners' award in a jury trial. Neither party filed an exception to the report of the commissioners, nor challenged the validity of the report or of the taking. The property was taken on May 6, 2005, when ODOT deposited $9,500 with the LeFlore County District Court.
¶4 In the course of construction, it became necessary to move the utilities 300 feet farther than originally planned. This created two new expenses of which neither party had been aware at the time of the first commissioners' report: 1) a house near the north parcel had to be converted to use bottled propane because a gas line had been cut and the gas company would not replace the line; and 2) three water gaps had to be cut.
¶5 On January 31, 2007, nearly two years after the commission filed its report, ODOT filed a motion to direct the commissioners to re-evaluate the estimate of just compensation based on the new expenses. A jury trial had not been conducted at this time. The Perdues objected to the request on the grounds that the motion was: 1) a form of pleading not permitted by statute; 2) filed nearly two years out of time; and 3) an unfair attempt to avoid an award of fees and costs by seeking a higher commissioners' award on the eve of the jury trial.3 On April 12, 2007, the trial court conducted a hearing and, on April 19, 2007, it granted ODOT's motion for a re-evaluation of just compensation.
¶6 The commissioners reconvened and, on August 3, 2007, filed a second report that adjusted the compensation to $42,800. On August 13, 2007, ODOT filed a demand for jury trial on the second report. The Perdues did not demand a jury trial on the second report, but instead, on August 21, 2007, filed an exception to the amended report of the commissioners. After a hearing, the trial court denied the Perdues' exception and confirmed the amended report of the commissioners on October 22, 2007, finding that ODOT had shown good cause why the commissioners should be reinstructed and holding that the commission had faithfully performed its duties.
¶7 Before a jury trial could be conducted, the Perdues filed an interlocutory appeal on November 21, 2007. In an opinion promulgated on August 8, 2008, the Court of Civil Appeals affirmed, holding that a trial court may order a supplemental report from commissioners upon good cause shown.4 The Perdues filed a petition for certiorari on August 27, 2008. We granted certiorari on October 20, 2008, to address a question of first impression.
BECAUSE ODOT FILED ITS EXCEPTION TO THE REPORT OF THE COMMISSIONERS AFTER THE STATUTORY PERIOD FOR FILING AN EXCEPTION TO THE REPORT OF THE COMMISSIONERS HAD EXPIRED, THE TRIAL COURT ERRED BY CONFIRMING A NEW APPRAISEMENT.
¶8 The Legislative power of the State includes the power of eminent domain.5 The power of eminent domain is the inherent power of an entity to take private property for public use.6 The Okla. Const. art. 2, §24 acts as a limitation on this inherent power by providing that private property may not be taken for public use without just compensation.7
¶9 Condemnation is a special proceeding recognized as such by the Oklahoma Constitution.8 Because condemnation is in a procedural category of its own, the legislature has passed special statutes for the just and orderly functioning of the court when hearing these special proceedings.9 The procedural requirements set forth for condemnation cases in the statutes are reasonable and must be complied with.10 Condemnation proceedings are begun by one party filing a petition in district court to appoint a commission made up of three disinterested landowners to determine the amount of just compensation.11 The commission is to inspect the property, assess the just compensation due the landowner, and file a report of its findings with the clerk of the district court.12 When the condemnor has paid the amount of just compensation set by the commission into the court, the condemnor may enter the property.13 The date of the condemnor's payment into the court is deemed the date of taking.14
¶10 If either party objects to the findings of the commission, the party may file an exception to the report of the commissioners or a request for jury trial. An exception to the report of the commissioners must be filed within thirty days after the filing of the commissioners' report, and the court must confirm or reject the report, or if good cause is shown, order a new report from the commission.15 A request for jury trial must be filed within sixty days after the filing of the commissioners' report, and the amount of just compensation is then set by a jury in a trial conducted in the same manner as other civil actions.16 Only a demand for jury trial will raise the issue of damages, and only an objection to the report of the commissioners will raise the issue of the necessity of the taking.17
¶11 The Perdues' first argument is that ODOT's January 31, 2007 motion styled "Motion and Authority for Order Directing Commissioners to Re-evaluate Estimate of Just Compensation" was not a motion permitted by the statutory framework for condemnation proceedings. A petition, a demand for jury trial, and an objection to the report of the commissioners are the only three pleadings authorized by statute in condemnation proceedings.18 However, the meaning and effect of an instrument filed in court depends on its contents and substance rather than on the form or title given it by the author. 19 ODOT's "Motion and Authority for Order Directing Commissioners to Re-evaluate Estimate of Just Compensation" was properly construed by the trial court as an exception to the report of the commissioners.
¶12 The Perdues' second argument is that because ODOT filed its exception to the report of the commissioners nearly two years after the thirty day filing period had run, the trial court erred by ordering a new appraisement. ODOT argues that a trial court may order a new appraisement as right and justice may require on good cause shown,20 and that the thirty day time period for filing an exception to the report of the commissioners is not a true limitations period but merely a "time anchored restriction."
¶13 Although this Court has never explicitly considered whether the time period to file an exception to the report of the commissioners in a condemnation proceeding is a time anchored restriction, we have held that a demand for jury trial in a condemnation proceeding is effective only for the sixty day statutory period.
¶14 In Transok Pipeline Co. v. Adams, 1971 OK 108, 488 P.2d 1256, a condemnation action, the landowner filed a demand for jury trial after the statutory filing period had expired. We held that the trial court erred by failing to sustain the condemnor's motion to strike the landowner's demand for jury trial, finding: "This court has consistently held that filing of demand for jury trial is effective only for the period allowed by statute after the filing of the report . . . [w]e continue to so hold." 21 Likewise, an exception to the report of the commissioners in a condemnation action is effective only if filed within the thirty day statutory period; otherwise, it is time-barred. If an exception to the report of the commissioners is filed out of time, a trial court is without authority to order or confirm a new appraisement.22
¶15 It is undisputed that ODOT filed an exception to the report of the commissioners almost twenty-two months after the statutory period had expired. The trial court was without authority to order a new appraisement by the commissioners or to confirm the amended appraisement.
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http://www.oscn.net/applications/oscn/deliverdocument.asp?cite=2008+OK+103
Outcome: ¶16 According to the procedural requirements for condemnation cases, the commissioners are to make an award of just compensation. If a party objects, it has sixty days to make the decision whether to go to the time and expense of requesting a jury trial. The fee award provisions are a major factor in this decision, and entitlement to a fee award is based solely on a comparison of the commissioners' award with the jury's award. The thirty day period for filing an exception allows a landowner to have a final award from the commission before taking a calculated risk that a jury will return a greater award.
¶17 ODOT places great emphasis on the fact that expenses unknown to either party arose after the commissioners' first report, but before a jury trial could be conducted. This is not uncommon in condemnation proceedings. The process of construction can be unpredictable, and unanticipated expenses may arise, just as some anticipated damages may not occur.23 However, there is nothing in the statutory procedure for conducting condemnation proceedings which permits a condemnor to file an exception after the thirty day period simply because a new expense has arisen.
¶18 ODOT filed its exception to the commissioners' report well after the thirty day filing period set by statute had expired. The trial court erred by confirming the amended report of the commissioners. The decision of the trial court is reversed, the Court of Civil Appeals opinion is vacated, and the cause is remanded for proceedings consistent with this opinion.
CERTIORARI PREVIOUSLY GRANTED; COURT OF CIVIL APPEALS OPINION VACATED; TRIAL COURT REVERSED AND CAUSE REMANDED.
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Defendant's Experts:
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