Opinion
No. 70-538
Decided June 23, 1971.
Appeal — Case certified by Court of Appeals — Rule of law on which conflict claimed not set forth — Remand — Rule III, Section 6, Rules of Practice.
CERTIFIED by the Court of Appeals for Cuyahoga County.
Appellants were owners of a large parcel of land located in Brecksville, Ohio. The land was zoned for single-family residences, with minimum lot sizes of 100 by 200 feet, but had formerly been used as a family farm. Its "highest and best use," according to an appraiser for appellant, was for residential development. Appellee, the Director of Highways, appropriated a portion of this tract for use in the construction of Interstate Route 77. The appropriated property measured 15.92 acres, and split the original tract into two residual parcels.
Shortly after the appropriation of this property by the state, a trial was had in the Probate Court of Cuyahoga County to determine the compensation due appellants.
During the trial, on direct examination, appellants attempted to question two appraisers, called by them, about the sale prices of allegedly comparable property upon which they had based their opinions as to appellants' loss. While one of these appraisers, Mr. Fairless, had previously testified that he had found no comparable sale of properties as large as this, he did state that the sales examined were "generally comparable" to the land in question. The other appraiser for appellant, Mr. Thomas, did not testify as to the comparability of the sales studied, but did specify that their location was near that of the appropriated land.
Appellee's objection to this line of questions was sustained by the trial judge, who stated, "under the law of Ohio, you're not permitted in court to testify on direct examination as to the value of considerations of comparable sales."
The two appraisers, testifying on behalf of appellant, evaluated the appropriated parcel of land at $49,350 and $45,150. Evaluations of the damage to the residue by the same appraisers were $87,500 and $82,525. The state's two appraisers evaluated the land taken at $37,002 and $37,550, and the damage to the residue at $26,900 and $27,915.
The jury returned a verdict for appellants in the amount of $48,130 for the land taken, and $32,500 as damages to the residue. Appellants perfected an appeal to the Court of Appeals, which resulted in an affirmance of the judgment of the trial court. The judgment entry was filed July 20, 1970.
On July 30, 1970, appellants filed in the Court of Appeals a notice of appeal from that court's judgment. Thereafter, appellants' motion to certify was not timely filed in this court. Appellants also filed in the Court of Appeals a motion to certify the record as a conflict case in conflict with the decision of another Court of Appeals. This motion was granted on September 24, 1970, the Court of Appeals' journal entry reading in part: "Motion by defendants appellants to certify cause to the Supreme Court as a conflict case granted."
Mr. William J. Brown, attorney general, and Mrs. Rita Page Reuss, for appellee.
Messrs. Rini Hecht and Mr. Donald L. Goldman, for appellants.
Appellants' motion in the Court of Appeals requesting certification of the case set forth as a basis for the motion a claimed conflict between the Court of Appeals' judgment in this case and that of the Court of Appeals for Marion County in the first paragraph of the syllabus of In re Appropriation for Hwy. Purposes (1968), 15 Ohio App.2d 55; affirmed on other grounds, 18 Ohio St.2d 214.
However, the Court of Appeals' journal entry certifying the case to this court does not indicate the rule of law upon which the conflict exists, as required by Section 6, Rule III, Rules of Practice of the Supreme Court of Ohio.
Rule III, Section 6 of the Rules of Practice of the Supreme Court of Ohio reads as follows:
"In a case certified to this court if the rule of law upon which the alleged conflict exists is not clearly set forth in the journal entry or opinion of the Court of Appeals certifying the case, the case may be remanded to the Court of Appeals with an order that the issue presented be clarified by such court."
We observe that the record does not reveal that the Court of Appeals determined whether the trial court's ruling, if erroneous, served to prejudice appellants' rights. In the absence of such a ruling, any opinion in the cause would be advisory, and outside the authority of this court to render. See, Fortner v. Thomas (1970), 22 Ohio St.2d 13, 14.
Therefore the cause is remanded to the Court of Appeals for a determination of whether appellants' rights were prejudiced at trial, and to indicate by journal entry the rule of law upon which a conflict exists.
Judgment reversed.
O'NEILL, C.J., SCHNEIDER, HERBERT, DUNCAN, CORRIGAN, STERN and LEACH, JJ., concur.