Stadium Auth. v. Drinkwater & Merrill, Inc.

705 N.W.2d 549

267 Mich. App. 625

DETROIT/WAYNE COUNTY STADIUM AUTHORITY, Plaintiff-Appellee/Cross-Appellant, v. DRINKWATER, TAYLOR AND MERRILL, INC, Defendant-Appellant/Cross-Appellee.

Detroit/Wayne County Stadium Authority, Plaintiff-Appellee/Cross-Appellant, v. Mary Toovalian, a/k/a Marie Toovalian, Nora March, and Ardames Janoyan a/k/a Janoyan Ardameas, Defendants-Appellants/Cross-Appellees.

Detroit/Wayne County Stadium Authority, Plaintiff-Appellee/Cross-Appellant, v. Bimini Properties, Inc, Defendant-Appellant/Cross-Appellee, and Richard N. Moll, Defendant.

Detroit/Wayne County Stadium Authority, Plaintiff-Appellee/Cross-Appellant, v. Bimini Properties, Inc, Defendant-Appellant/Cross-Appellee, and Virginia Moll, Defendant.

Detroit/Wayne County Stadium Authority, Plaintiff-Appellant/Cross-Appellee, v. Rojo Farms, Defendant-Appellee/Cross-Appellant.

Detroit Wayne County Stadium Authority, Plaintiff-Appellant/Cross-Appellee, v James Wingate, Sr., Alzalia City Cab Company, Transport Systems Company, and City Cab Company, Defendants-Appellees/Cross-Appellants, and Alzalia Wingate, Defendant.

Docket No. 251799.

Docket No. 251800.

Docket No. 251801.

Docket No. 251802.

Docket No. 251869.

Docket No. 251870.

Court of Appeals of Michigan.

Submitted June 14, 2005, at Detroit.

Decided August 9, 2005, at 9:00 a.m.

Released for Publication November 10, 2005.

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Dickinson Wright, P.L.L.C. (by John E.S. Scott, Peter H. Webster, Paul R. Bernard, and Barbara H. Erard), Detroit, for the plaintiff.

Plunkett & Cooney, P.C. (by Mary Massaron Ross and Christine D. Oldani), Detroit, and Ackerman & Ackerman, P.C. (by Alan T. Ackerman and Darius W. Dynkowski), Troy, for the defendants.

Before: BANDSTRA, P.J., and FITZGERALD and METER, JJ.

FITZGERALD, J.

These consolidated appeals arise out of condemnation proceedings initiated by the Detroit/Wayne County Stadium Authority (the stadium authority) to acquire various parcels of property for use in constructing new stadiums for the Detroit Lions and the Detroit Tigers. The stadium authority acquired several parcels without the need for condemnation. The present cases involve properties for which condemnation actions were necessary because the property owners refused the stadium authority's good-faith offers.¹ Defendants did not contest the necessity of the takings and, therefore, the trial court entered orders vesting title in and granting possession of the parcels to the stadium authority. The stadium authority was ordered in each case to pay defendants the amount of the good-faith offer. Defendants pursued additional compensation in court, contending that, in the absence of the dual-stadiums project, the "highest and best use"² of their properties was for assemblage with other properties for casino development, rather than for commercial development as contended by the stadium authority. A jury trial was held in each case, with the sole issue being the amount of just compensation owed for property taken pursuant to the power of eminent domain.

In Docket No. 251799, the stadium authority had offered $150,000 for the property, a 7,500-square-foot parcel of land³ with 75 feet of frontage on Adams and 100 feet of frontage on Witherell. The property was paved and contained a small Coney Island restaurant. The property was also periodically used as an overflow parking lot in connection with events at local theaters. The jury returned a verdict of $150,000.

In Docket No. 251800, the stadium authority had offered $20,000 for the property, a 1,892-square-foot vacant lot with 25 feet of frontage on Elizabeth Street. The jury returned a verdict of $20,000.

In Docket Nos. 251801 and 251802, the stadium authority had offered $170,000 for the property known as parcel 152, an 11,159-square-foot parcel of land with 71 feet of frontage on the east service drive for the Fisher Freeway. The property contained an abandoned home and an abandoned three-story industrial building. The stadium authority had offered $107,000 for the property known as parcel 151, a 10,700-square-foot vacant lot with 80 feet of frontage on the east service drive for the Fisher Freeway. The jury returned a verdict of $170,000 for parcel 152 and $107,00 for parcel 151.

In Docket No. 251869, the stadium authority had offered $32,000 for the property, a 25-foot by 80-foot strip of land containing 2,000 square feet. The jury returned a verdict of $194,720.

In Docket No. 251870, the stadium authority had offered $156,000 for the property, a 15,600-square-foot parcel of land that was used as a parking and maintenance lot for taxi and transportation service businesses. The jury returned a verdict of $1,427,181, consisting of $1,248,000 for the land and $179,181 as compensation for the interruption of business during relocation from the property.

FACTS⁴

In 1993 former Detroit Mayor Coleman Young supported legislation known as "Speeda Legislation" that would provide funds to construct a new stadium for the Detroit Tigers. Young's mayoral successor, Dennis Archer, also supported the legislation. The stadium was proposed for the east side of Woodward Avenue across the street from the Fox Theater. Shortly after a March 1996 citywide vote was held to determine if the city would be able to use public or city funds to help finance a new stadium, the Detroit Lions expressed an interest in relocating to the city of Detroit and constructing a new stadium. On August 10, 1996, a joint press conference was held to announce that the Detroit Tigers and the Detroit Lions had agreed to construct dual stadiums on the east side of Woodward Avenue, in an area known as "Foxtown," where defendants' properties are located. Defendants' properties were taken pursuant to the power of eminent domain for the purpose of constructing the dual stadiums.

In each case, defendants rejected the stadium authority's good-faith offers and sought just compensation on the theory that, in the absence of the dual-stadiums project, their properties would have been combined with many other parcels of property and used in connection with casino development. The stadium authority introduced evidence that, at the time of the condemnation of defendants' properties, the highest and best use of the properties was for commercial development. It introduced evidence that government policy made it impossible for any casino to locate in the area of defendants' properties and that no casino developer had an interest in developing a casino in Foxtown after the Governor indicated in June 1995 that he would not approve off-reservation Indian gaming in the city of Detroit. Defendants introduced evidence that, in the absence of the dual-stadiums project, their properties would have been used in connection with casino development, and presented evidence in support of their theory of valuation.

Docket Nos. 251799, 251800, 251801, 251802

Defendants argue that the trial court erred by providing a jury instruction premised on the probability of assemblage for casino development rather than the possibility of assemblage for casino development. Claims of instructional error are generally reviewed de novo. Cox v. Flint Bd. of Hosp. Managers, 467 Mich. 1, 8, 651 N.W.2d 356 (2002). A determination based on a legal issue is a question of law subject to review de novo. Jackson v. Nelson, 252 Mich.App. 643, 647, 654 N.W.2d 604 (2002). Reversal is not required unless the failure to reverse would be inconsistent with substantial justice. MCR 2.613(A); Ward v. Consolidated Rail Corp., 472 Mich. 77, 84, 87, 693 N.W.2d 366 (2005). There is no error requiring reversal if, on balance, the theories of the parties and the applicable law were adequately and fairly presented to the jury. Murdock v. Higgins, 454 Mich. 46, 60, 559 N.W.2d 639 (1997); In re Flury Estate, 249 Mich.App. 222, 225-226, 641 N.W.2d 863 (2002).

Defendants argue that the trial court erred in instructing the juries about how to evaluate prospective uses of their properties, specifically the prospective use for casino development. Defendants argue that the instruction that directed the juries to consider whether "a prudent buyer would have had a belief that private assemblage was reasonably probable within a reasonable time and for a reasonable price" was erroneous because the jury should have been instructed to consider whether it was "reasonably possible" — not "reasonably probable" — that a private assemblage for casino development would occur.

In the condemnation setting, "just compensation" is defined as the amount of money that will put the person whose property has been taken in as good a position as the person would have been in had the taking not occurred. Dep't of Transportation v. VanElslander, 460 Mich. 127, 129, 594 N.W.2d 841 (1999); In re Acquisition of Land for the Central Industrial Park Project, 142 Mich.App. 675, 676-677, 370 N.W.2d 323 (1985); SJI2d 90.05, now M Civ. JI 90.05. An award of just compensation is based on the fair market value of the property. Fair market value is to be determined as of the date of the taking. See Silver Creek Drain Dist. v. Extrusions Div., Inc., 468 Mich. 367, 378-379, 663 N.W.2d 436 (2003). "Fair market value" is

"the highest price estimated in terms of money that the land will bring if exposed for sale in the open market with a reasonable time allowed to find a purchaser buying with knowledge of all the uses and purposes to which it is adapted and for which it is capable of bring used; the amount which land would bring if it were offered for sale by one who desired, but was not obliged, to sell, and was bought by one who was willing, but not obliged to buy; what the land would bring in the hands of a prudent seller, at liberty to fix the time and conditions of sale; what the property will sell for on negotiations resulting in sale between an owner willing but not obliged to sell and a willing...