A-18-0827, Thomas M. Russell and Pamela J. Russell (Appellants) v. Franklin County
Franklin County District Court, Judge Stephen R. Illingworth
Attorney for Appellant: Matthew Hammes & Cristina Fackler (Locher, Pavelka, Dostal, Braddy & Hammes)
Attorney for Appellee: Brandy Johnson (Governmental Law, LLC); Henry Schenker (Franklin County Attorney)
Civil Action: Inverse Condemnation
Action Taken by Trial Court: The trial court granted appellee’s motion for summary judgment, finding that appellants cannot seek just compensation through an action for inverse condemnation against a political subdivision, and must instead pursue a claim under the Political Subdivisions Tort Claims Act. The court also excluded testimony from appellants’ expert witness regarding damages because it was based on the cost to restore the property and not the loss in property value.
Assignments of Error on Appeal: Did the trial court err in granting appellee’s motion for summary judgment, and failing to apply, as a matter of law, the proper measure of damages for an inverse condemnation proceeding? Did the trial court err in determining, as a matter of law, that appellants cannot seek just compensation for damages they incurred through an inverse condemnation action, holding that such damages can only be recovered in an action filed under the Political Subdivisions Tort Claims Act, and improperly finding that the inverse condemnation proceeding initiated by appellants was the same as a condemnation proceeding where the County had acquired fee simple title to a portion of appellants’ real property, as opposed to damaging appellants’ trees, and thus incorrectly applying the measure of damages found in NJI 2d. Civ. 13.07 and 13.08? Did the trial court err in in granting appellee’s motions in limine and denying appellants’ motions in limine based on the trial court’s incorrect application of the wrong measure of damages for an inverse condemnation?