Opinion
C.A. No. 97C-10-046, C.A. No. 97C-10-045.
Submitted: February 2, 2001.
Decided: February 8, 2001.
Upon Plaintiffs Motions in Limine. Granted.
Mark F. Dunkle, Parkowski Guerke, P.A., Dover, Delaware, for the Plaintiff. Robert B. Young, Young Young, Dover, Delaware, for the Defendants.
ORDER
Florence Baynard and Marian Smith ("Defendants") owned 170.75 acres of land in Kent County with residential and farm improvements, zoned RS-1 adjacent to the City of Dover. The State of Delaware, upon the relation of the Secretary of the Department of Transportation, ("Plaintiff" or "State") brought a condemnation action against 20.8739 acres of Defendants' property. The condemned land is part of a temporary construction and permanent easements to be used in the installation of Scarborough Road from Route 13 on the east to McKee Road on the west. To date, Defendants have been compensated $341,165.00 for the takings. Defendants have no dispute as to whether this sum is just compensation for the area taken. What remains to be settled is the status of a 2.1603 acre portion of the 149.8761 remainder retained by Defendants. Defendants argue that this parcel is an "uneconomic remnant" and as such should be considered part of the takings in this case.
The total taking consists of approximately 19.163 acres of land as a permanent taking; 1.71 acres of land as a permanent taking; and 0.7225 acres of land as a temporary construction easement.
The State now brings two motions in limine. The first motion in limine is a motion to exclude testimony regarding the 2.1603 acre remainder portion of Defendants' property. The second motion in limine is a motion to exclude the testimony of Defendants' appraiser Gary V. Parker. Defendants argue that the testimony and evidence is relevant in determining whether the land has been taken and that Gary Parker can testify in this respect. There is no dispute as to the amount at which each acre should be valued if it should be found that a taking occurred. Both motions revolve around the same issue; that is, what evidence or testimony can be presented about the 2.1603 acre remainder portion of Defendants' property. The parties have agreed that the two motions and the responses thereto are in effect motions for summary judgment by the State.
The State's first motion in limine, to preclude evidence or testimony concerning the separated 2.1603 acre remainder, is in effect a motion to bar this issue from the case. Therefore, the Court must first evaluate whether or not the claim surrounding the 2.1603 acres is barred before evaluating the other motion. Defendants claim that this parcel of land is an "uneconomic remnant" based on 29 Del. C. § 9505 (9) which states:
(9) If the acquisition of only a portion of a property would leave the owner with an uneconomic remnant, the agency concerned shall offer to acquire that uneconomic remnant. For the purpose of this chapter, an uneconomic remnant is a parcel of real property in which the owner is left with an interest after the partial acquisition of the owner's property and the agency concerned has determined the parcel has little or no value or utility to the owner.
Plaintiff argues that the proper time to raise such a concern was in Defendants' challenge of the Order of Possession.
Under Delaware law, a condemnation is commenced by the filing of an action in the Superior Court by the condemning party. According to 10 Del. C. § 6107, [a]ny objection or defense to the taking of the property, or any interest therein, by any defendant, shall be made by answer." In the case sub judice, the Defendants filed an Answer in which they challenged the necessity of the condemnation pursuant to 10 Del. C. § 6110(a). Defendants do not raise in their response to the Order of Possession whether the 2.1603 acres should be considered an "uneconomic remnant" under 29 Del. C. § 9505(9). In fact, the Order of Possession was signed as the Court found that the affidavit of necessity was adequate.
See 10 Del. C. § 6101 et seq.
State v. Baynard, Del. Super., C.A. No. 97C-10-046, Terry, J. (Nov. 24, 1997) (ORDER).
Superior Court Civil Rule 56(c) states that summary judgment should be granted "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Summary judgment cannot be granted unless after viewing the record in a light most favorable to the nonmoving party, there are no material issues of fact. The moving party bears the burden of showing that there are no material issues of fact; however, if the moving party supports" the motion under the Rule, the burden shifts to the nonmoving party to show that material issues of fact do exist. In Merrill v. Crothall-American, Inc., the court stated that the "role of a trial court when faced with a motion for summary judgment is to identify disputed factual issues whose resolution is necessary to decide the case, but not to decide such issues. Summary judgment will not be granted in cases where the record indicates that a material fact is in dispute or if it seems desirable to inquire more thoroughly into the facts in order to clarify the application of the law.
Sup. Ct. Civ. Rule 56(c).
Moore v. Sizemoore, Del. Supr., 405 A.2d 679, 680 (1979).
Id.
Merrill v. Crothall-American, Inc., Del. Supr., 606 A.2d 96, 99 (1992).
Ebersole v. Lowengrub, Del. Supr., 180 A.2d 467, 468-469 (1962).
Objections and defenses arising under the Real Property Acquisition Act ("RPAA"), 29 Del. C. § 9501 et seq., are claims to be filed in compliance with 10 Del. C. § 6107. In City of Dover v. Cartanza, the Court noted the application of 10 Del. C. § 6107 to the Real Property Acquisition Act. Specifically, the Court stated "that the RPAA guidelines are directory rather than mandatory. Therefore, a noncompliance may in certain circumstances be excused. Noncompliance is not a jurisdictional defect requiring automatic dismissal whenever it is raised. It is instead a defense or objection to the taking which shall be deemed waived if not presented. In the Cartanza case, the defendants properly raised the issue of noncompliance with the RPAA in their answer to the order of possession. The City of Dover defended by arguing the futility of complying with RPAA in those circumstances. The Court dismissed the condemnation action because of the City's noncompliance with the RPAA.
City of Dover v. Cartanza, Del. Super., 541 A.2d 580, 583 (1988).
Id.
In the case at hand, the Plaintiff determined through its appraiser, George Records, that the 2.1603 parcel has value and utility and therefore is not an uneconomic remnant. The proper time to raise the issue of an "uneconomic remnant" would have been in the Answer to the Order of Possession. However, Defendants did claim in their Answer to the Complaint filed before the hearing on the motion for order of possession that the description depicting the property described a taking that "would gravely effect far greater reaches of Defendants' property than the description indicates." It might be argued that the effect on the 2.1603 acre portion retained by the Defendants constitutes this "grave effect". This point was not argued by the Defendants at the hearing on February 2, 2001 and, in any event, this Court is satisfied that under 29 Del. C. § 9505(9) this parcel is not an uneconomic remnant.
Defendants did not raise the issue of "uneconomic remnant" in their Answer; therefore, this defense is waived as a matter of law. The motion to exclude testimony regarding the 2.1603 acre portion of the Defendants' remainder property is granted .
As a further result of this Court's ruling as to the exclusion of the Defendants' appraiser's testimony, it is not necessary to address Plaintiff's objection to the inadequacies of Mr. Parker's testimony. The testimony is not relevant since his testimony concerning the 2.1603 acres is barred. Therefore, for the foregoing reasons, a motion for summary judgment for the Plaintiff will be granted.
IT IS SO ORDERED.
/s/_____________________________ J.