The city conceded that its street and storm water project resulted in a neighboring commercial property flooding three times, and that “the evidence supported a prima facie case of a ‘partial taking’ of Lenertz’s property.” So far, so good.
But Lenertz had alleged the city’s project caused past and future flooding, and resulted in a total take. “Near the conclusion of Lenertz’s case in chief, but before receiving testimony from appraiser Daniel Boris, his expert on damages, the court found the evidence established only a partial taking of Lenertz’s property.” Because the appraiser was going to testify about the “full measure of damages to the property,” and not the before-and-after value, the court concluded that the jury could not consider the appraiser’s testimony, and entered judgment in favor of the city.
In Lenertz v. City of Minot, No. 20180153 (Apr. 3, 2019), the North Dakota Supreme Court agreed. It rejected the owner’s claim that “frequent” and “continuing without remediation” flooding was a permanent taking, because the city hadn’t fixed the problem. The court held that despite the flooding, the property still had “economic value” as shown by the $85,000 in rent which the owner collected. The court detailed the type of evidence which might have show a total taking: loss of a tenant, decreased rents, lost sale of the land, or loss of a building or personal property. Or a permanent inundation. Slip op. at 8.
The court also agreed with the city that the trial court properly excluded the owner’s appraiser because in a partial taking, he could only testify about the before-and-after value of the property. His proffered testimony, however, was that the city rendered the property “worthless, because of recurring flooding.” Slip op. at 11.
The court explained it refused to allow Boris to testify because his valuation was at odds with the court’s conclusion only a “partial taking” occurred. The court reasoned that because Lenertz did not establish a total taking of his property, the diminution in value was not total and Boris’s testimony would not assist the jury in deciding damages. The jury would be left to speculate as to the amount of damages.
[¶24] On this record, the district court did not abuse its discretion in refusing to admit Lenertz’s proffered expert testimony.
Slip op. at 11.
The court’s bottom line: if the court concludes there’s been only a partial taking, evidence of the total devaluation of the property is not admissible. Slip op. at 12 (“Because Lenertz only proffered evidence of total devaluation rather than specific damages, the district court properly granted judgment as a matter of law under N.D.R.Civ.P. 40. The district court did not err in holding the evidence was insufficient to have the jury decide damages.”).
Lenertz v. City of Minot, No. 20180153 (N.D. Apr. 3, 2019)