DETROIT/WAYNE CO STADIUM AUTHORITY V JAMES WINGATE SRAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
DETROIT/WAYNE COUNTY STADIUM
August 9, 2005
Wayne Circuit Court
LC No. 97-716709-CC
DRINKWATER, TAYLOR AND MERRILL,
DETROIT/WAYNE COUNTY STADIUM
MARY TOOVALIAN, a/k/a MARIE
TOOVALIAN, NORA MARCH, and ARDAMES
JANOYAN a/k/a JANOYAN ARDAMEAS,
Wayne Circuit Court
LC No. 97-710208-CC
DETROIT/WAYNE COUNTY STADIUM
Wayne Circuit Court
LC No. 97-711106-CC
BIMINI PROPERTIES, INC,
RICHARD N. MOLL,
DETROIT/WAYNE COUNTY STADIUM
Wayne Circuit Court
LC No. 97-711107-CC
BIMINI PROPERTIES, INC,
DETROIT/WAYNE COUNTY STADIUM
Wayne Circuit Court
LC No. 97-710204-CC
DETROIT WAYNE COUNTY STADIUM
JAMES WINGATE, SR., ALZALIA CITY CAB
COMPANY, TRANSPORT SYSTEMS
COMPANY, and CITY CAB COMPANY,
Wayne Circuit Court
LC No. 97-722718-CC
Official Reported Version
Before: Bandstra, P.J., and Fitzgerald and Meter, JJ.
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
MCL 213.55(1) requires a condemning agency, before initiating negotiations for the purchase
of property, to make a "good faith written offer" based on the agency's appraisal of just
compensation for the property.
"'Highest and best use' is a concept fundamental to the determination of true cash value. It
recognizes that the use to which a prospective buyer would put the property will influence the
price which the buyer would be willing to pay." Edward Rose Bldg Co v Independence Twp,
436 Mich 620, 633; 462 NW2d 325 (1990).
An acre of land is 43,560 square feet.
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 25foot by 80-foot strip of land containing 2,000 square feet. The jury returned a verdict of
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.
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
Because these appeals involve five separate lengthy trials, specific facts will be discussed
where relevant to the issues raised on appeal.
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
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 NW2d 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 NW2d 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 NW2d 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 NW2d 639 (1997); In re Flury Estate, 249 Mich App
222, 225-226; 641 NW2d 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 NW2d 841 (1999); In re Acquisition of Land for the Central Industrial Park Project,
142 Mich App 675, 676-677; 370 NW2d 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 NW2d 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 buyer not obliged to buy; what the land would
be reasonably worth on the market for a cash price, allowing a reasonable time
within which to effect a sale." [Consumers Power Co v Allegan State Bank, 20
Mich App 720, 744-745; 174 NW2d 578 (1969) (Consumers Power I) (citation
omitted). See also SJI2d 90.06, now M Civ JI 90.06.]
In determining fair market value, one must also determine the highest and best use of the
property. St Clair Shores v Conley, 350 Mich 458, 462; 86 NW2d 271 (1957); In re
Condemnation of Lands in Battle Creek for Park Purposes, 341 Mich 412, 419-420; 67 NW2d
49 (1954). "Highest and best use" means "the most profitable and advantageous use the owner
may make of the property even if the property is presently used for a different purpose or is
vacant, so long as there is a market demand for such use." SJI 2d 90.09, now M Civ JI 90.09;
see also Jack Loeks Theatres, Inc v City of Kentwood, 189 Mich App 603, 618-619; 474 NW2d
140 (1991), vacated in part 439 Mich 968 (1992).5
In determining the highest and best use of the property, Michigan courts have permitted
consideration of the assemblage doctrine. Consumers Power I, supra at 737-738. Assemblage
involves the use of a parcel of property in conjunction with other properties.
In support of their argument, defendants rely on a series of cases involving rezoning,
variances, and special use permits. The stadium authority concedes that Michigan law, including
the civil jury instructions, makes it clear that the "reasonably possible" standard applies to the
prospect of rezoning,6 but asserts that there is no authority to establish that it applies to the
prospect of private assemblage. It argues that Michigan case law addressing jury instructions
regarding the prospect of assemblage is consistent with the instructions given in these cases and
that the instructions are consistent with Michigan condemnation law for determining just
Both the stadium authority and defendants agree that Consumers Power I is the leading
authority regarding how a jury should be instructed to evaluate a prospective use of condemned
property that involves the private assemblage of the property with other privately owned parcels.
In Consumers Power I, a public utility sought to create a gas storage facility from an
underground cavern that had originally held natural gas but had been emptied. The utility sought
to use eminent domain to condemn the numerous parcels of property that contained the cavern.
In one of the cases arising from these condemnations, the property owners sought to have the
fact-finder value the property as though it could have been used as a gas storage facility, even
though it was not being so used at the time of taking. The question arose in the trial court
whether and how the jury should be instructed to account for the prospect of assembling the
In modifying the case, the Supreme Court vacated the award of attorney fees.
See Dep't of Transportation v Haggerty Corridor Partners Ltd Partnership, 473 Mich 124,
136-138; 700 NW2d 380 (2005).
subject property with other parcels for the purpose of using all the properties as a gas storage
facility. Consumers Power I, supra at 735-737.
In considering this question, this Court stated:
"Even though the increased market value is due to the adaptability of the
property for valuable uses in conjunction with other properties, it may be
considered, if the practicality of the combination of all necessary properties on
which such availability depends is at the time of the condemnation so great as
probably to affect the public mind, and therefore increase the price which a
purchaser might be expected to give. This rule is not, however, applied where the
chance of different parcels of land being brought together by agreement or
purchase, in such a way as to be available for the use, is to be regarded as too
remote and speculative to have any legitimate effect upon the valuation." [Id. at
737-738 (emphasis added; citation omitted).]
This Court expressly employed the concept of "probability" rather than "possibility" to describe
the degree of likelihood that was necessary to support a finding that the subject property's fair
market value would be affected by the prospect of a use for which assemblage was required.7
Defendants contend that the Supreme Court in Consumers Power II used the concepts of
"reasonable probability" and "reasonable possibility" interchangeably. This contention is
misplaced, as the use of those concepts occurred in an opinion partially concurring, not in the
majority opinion. Rather, the majority opinion simply affirmed this Court's holding without any
discussion of the concepts of "reasonably probable" or "reasonably possible."
Defendants also contend that this Court in Consumers Power I recognized the distinction
between the "reasonably probable" standard and the "reasonably possible" standard. Defendants
purport to find this distinction in this Court's opinion through this Court's reliance on City of
Allegan v Vonasek, 259 Mich 310; 243 NW 14 (1932) (Vonasek I), and City of Allegan v
Vonasek, 261 Mich 16; 245 NW 557 (1932) (Vonasek II). Although this Court's opinion in
Consumers Power I does cite the Vonasek II case, it does not directly rely on it. This Court
distinguished its holding from Vonasek II by asserting that "[o]ur case can be better likened to
Emmons v. Utilities Power Company (1927) 83 NH 181 (141 A 65), as reported in 58 ALR 788."
Consumers Power I, supra at 740. This Court relied directly on the Emmons opinion to assert
that a jury should consider the prospect of assemblage only when it was so likely that it would
probably affect market value. Id. ("'if the practicability of the combination of all the necessary
A majority of the Supreme Court affirmed this Court's decision in Consumers Power I without
any material comment on or alteration of this Court's ruling on how the jury should have been
instructed. Consumers Power Co v Allegan State Bank, 388 Mich 568, 574; 202 NW2d 295
(1972) (Consumers Power II). Accordingly, this Court's statement of the law regarding jury
instructions on assemblage is authoritative.
properties on which such availability depends was at the time of condemnation so great as
probably to affect the public mind'").8
Additionally, the Vonasek cases do not support defendants' contention that the
"reasonably possible" standard should apply in assemblage cases. In Vonasek I, the Supreme
Court held that the jury should be instructed to account for prospective uses only to the extent
that such uses "may be reasonably expected in the immediate future." Vonasek I, supra at 316.
The Court did not hold that where a prospective use depended on a private assemblage, a jury
should be instructed to account for that use whenever there is a "reasonable possibility" that the
assemblage could be accomplished. Rather, the Court held that the jury should account for the
prospects of assemblage only when the fulfillment of those prospects was sufficiently likely that
a reasonable person would expect it to happen in the immediate future.
A jury may consider a prospective use that would come from private assemblage if the
likelihood of such use is sufficiently great to affect fair market value:
Thus, where the adaptability for a specific use depends upon the land's
being used in combination with lands belonging to other persons, such use may be
shown if the possibility of such combinations is so great as to have a definite
effect in enhancing the market value of the property. [4 Nichols, Eminent
Domain (3d ed), § 12B.12, p 12B-115.]
Although this passage does not include the term "probable," the passage also does not assert that
a jury may consider any "reasonably possible" use. Rather, it provides that a jury may only
consider those uses that are "so great as to have a definite effect" on market value. This
language suggests a standard more akin to "probability" than "possibility."
Also, with regard to prospective uses:
The possibility of its use for all purposes, present and prospective, for
which it is adapted and to which it might in reason be applied, must be
considered. Its value for the use to which men of prudence and wisdom and
having adequate means would devote to the property if owned by them must be
taken as the ultimate test. On the other hand, possible uses which are so remote
and speculative and which would require the concurrence of so many extrinsic
conditions and happenings as to have no perceptible effect upon present market
value must be excluded from consideration. [4 Nichols, Eminent Domain (3d ed),
§ 12B.12, pp 12B-89 to 12B-101.]
In Emmons, the court stated that "the plaintiff 's undeveloped water power here may be
considered in its relation to the whole of any mooted combination, but only to the extent that the
probability of such a union would have affected the mind of a prospective purchaser of the
plaintiff's power in its unimproved state at the time it was taken." Emmons, supra at 188.
According to this passage, uses that are too remote and speculative and that depend on the
concurrence of numerous contingencies must not be considered. The United States Supreme
Court has stated:
Elements affecting value that depend upon events or combinations of
occurrences which, while within the realm of possibility, are not fairly shown to
be reasonably probable, should be excluded from consideration, for that would be
to allow mere speculation and conjecture to become a guide for the ascertainment
of value—a thing to be condemned in business transactions as well as in judicial
ascertainment of truth. [Olson v United States, 292 US 246, 257; 54 S Ct 704; 78
L Ed 2d 1236 (1934).]
And, in Jack Loeks Theatres, supra at 618-619, this Court, in determining the admission
of testimony regarding value, quoted the general principle about the evaluation of prospective
uses for condemned property that is set forth in 4 Nichols, Eminent Domain (3d ed), § 12B.12:
"To warrant admission of testimony as to the value for purposes other than
that to which the land is being put, . . . the landowner must first show: (1) that the
property is adaptable to the other use, (2) that it is reasonably probable that it will
be put to the other use within the immediate future, or within a reasonable time,
and (3) that the market value of the land has been enhanced by the other use for
which it is adaptable." [Emphasis added.]
In light of this authority, the trial court's instruction directing 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 not erroneous.
Defendants' reliance on cases dealing with rezoning to support the proposition that all
cases involving prospective uses of condemned property require the use of the "reasonably
possible" standard is misplaced. The Michigan Model Civil Jury Instructions provide a specific
instruction governing rezoning that establishes a particular standard for cases in which the
possibility of rezoning affects the likelihood of a prospective use. See M Civ JI 90.10; see also
SJI2d 90.10. A similar instruction for other kinds of prospective uses does not exist,
demonstrating that rezoning cases are unique in themselves. Indeed, rezoning relates only to the
single contingency of whether the government agency will authorize rezoning, whereas
assemblage relates to a chain of contingencies (whether several different landowners will sell to
a single buyer in several independent transactions for a particular use and for a reasonable price
within a reasonable period of time). The contingencies involved in any private assemblage make
the proof of a private assemblage materially different from the proof of rezoning.
Defendants also argue that the trial court improperly allowed testimony that the city of
Detroit would exercise the power of eminent domain to obtain the properties necessary to
assemble land for casino sites if voluntary purchases were not made because eminent domain is
not a lawful basis for acquisition of property for a private use. This Court reviews a trial court's
ruling regarding the admission of evidence for an abuse of discretion. Reed v Reed, 265 Mich
App 131, 160; 693 NW2d 825 (2005).
Defendants argue that Mayor Archer testified that the city would have exercised the
power of eminent domain to acquire the properties chosen by the city for casino development
and that this testimony improperly suggested to the jury that no private market existed for casino
development. In their only reference to the record, they state that "[t]he mayor, who identified
himself in his direct examination as a former Supreme Court Justice, contended that the taking of
property for such a use would 'pass' constitutional muster."
Defendants assert that they filed a "Motion to Preclude Reference to Potential Use of
Eminent Domain Had Casinos Been Sited in the Subject Areas" after the mayor's deposition was
taken. They do not cite the record, nor do they provide copies of the motion or the trial court's
ruling, the date of the hearing, or any explanation of the court's ruling, other than to state that
"the trial court denied this motion." Thus, this issue is not properly presented for appellate
Nonetheless, the only reference made to the mayor's testimony in defendants' brief is to
the cross-examination of the mayor by defense counsel. The mayor testified on direct
examination, without objection, that the city might attempt to use eminent domain to assemble
property for casino development.10 The following colloquy occurred during cross-examination
by defense counsel:
Q. You're an attorney, of course, aren't you, Mr. Mayor?
Q. And I believe you're a former justice of the Michigan Supreme Court?
Q. Isn't it true that the courts might not allow the city to utilize the power
of eminent domain to acquire property to accommodate casinos?
A. I think it's unlikely because I think the predicate is set forth that the
city can satisfy all of the principal requirements and meet the test that has been set
forth by the Michigan Supreme Court.
Q. And that's your opinion?
The trial court's ruling was likely based on Poletown Neighborhood Council v Detroit, 410
Mich 616; 304 NW2d 455 (1981), in which the Court held that the condemnation of land in
Poletown to be conveyed to General Motors Corporation for the construction of new assembly
plants was for a public purpose.
Further, the mere fact that the case on which the mayor apparently relied to support his
opinion that eminent domain was available for use in siting casinos, Poletown Neighborhood
Council v Detroit, 410 Mich 616; 304 NW2d 455 (1981), has been overruled by Wayne Co v
Hathcock, 471 Mich 445; 684 NW2d 765 (2004), is not relevant in this case.
A. You asked for my opinion. I just gave it to you.
Clearly, it was defense counsel who solicited the mayor's testimony to which defendants now
object in an attempt to discredit the mayor's testimony on direct examination.
On this record, without a copy of the motion, without a transcript of the motion hearing,
and without a copy of the trial court's ruling, and absent an objection to the testimony during the
deposition, we cannot conclude that the trial court abused its discretion by admitting the
Finally, defendants argue that Mayor Archer gave improper opinion testimony in his
deposition. Specifically, they contend that the mayor prognosticated about future legislative
action when he answered hypothetical questions about whether he would or would not have
allowed the development of casinos absent the taking for the stadiums project. In support of this
argument, defendants cite only one unpublished decision, Nelson Drainage Dist v Book,
unpublished opinion per curiam of the Court of Appeals, issued March 29, 1995 (Docket No.
152341), and a number of foreign cases cited in that case.
Defendants do not refer to the location in the record where any objection to the testimony
was made and do not refer to any ruling by the trial court. This issue is therefore not properly
perfected nor preserved and, therefore, we decline to address it.11
Docket Nos. 251869 and 251870
I. Motion for judgment notwithstanding the verdict
The stadium authority first argues that it was entitled to judgment notwithstanding the
verdict (JNOV) because there was no issue of fact with regard to whether the highest and best
use of defendants' properties was for casino development. This Court reviews de novo a trial
court's ruling on a motion for JNOV. In reviewing a trial court's denial of a motion for JNOV,
this Court should examine the testimony and all legitimate inferences therefrom in the light most
favorable to the nonmoving party. Attard v Citizens Ins Co of America, 237 Mich App 311, 321;
602 NW2d 633 (1999). "A trial court should grant a motion for JNOV only when there was
insufficient evidence presented to create an issue for the jury." Id.
In determining market value, one must determine the highest and best use of the property.
St Clair Shores v Conley, supra at 462; In re Condemnation of Lands in Battle Creek for Park
Purposes, supra at 419-420. "Highest and best use" means "the most profitable and
advantageous use the owner may make of the property even if the property is presently used for a
different purpose or is vacant, so long as there is a market demand for such use." SJI 2d 90.09;
see also Jack Loeks Theatres, supra at 618-619.
Nonetheless, we disagree with defendants' labeling of the mayor's testimony as
"prognostication about future legislative action." The mayor's testimony regarding the siting of
casinos was fact-based and did not involve any prognostication about future municipal
legislation, because it was the mayor who recommended casino locations to the city council.
Moreover, in light of our resolution, we need not address the cross-appeals.
"The possibility of its use for all purposes, present and prospective, for
which it is adapted and to which it might in reason be applied, must be
considered. . . . Although a use reasonably likely to take place in the future can
be considered the highest and best use, such future use becomes too speculative
for consideration if the 'future' that is contemplated is beyond the 'near future.' To
warrant admission of testimony as to the value for purposes other than that to
which the land is being put, . . . the landowner must first show: (1) that the
property is adaptable to the other use, (2) that it is reasonably probable that it will
be put to the other use within the immediate future, or within a reasonable time,
and (3) that the market value of the land has been enhanced by the other use for
which it is adaptable." [Jack Loeks Theatres, supra at 618-619, quoting 4
Nichols, Eminent Domain (3d ed), § 12B.12.]
The stadium authority's argument that casinos would not have been approved for
development on defendants' properties is premised on its assertion that the undisputed evidence
established that the mayor and the city council had complete authority over the location of
casinos and that Archer unequivocally testified that he would not have approved casino
development on defendants' land because of the proximity to the stadiums, to a residential
development, and to Woodward Avenue. But defendants presented evidence that while Archer
also stated that he did not want casino development on the riverfront, he ultimately changed his
position and approved the development of casinos on the riverfront. Defendants also presented
evidence of the city's interest in locating casinos in the central business district,12 as well as of
the interest of the Foxtown Group in developing a casino in the Foxtown area. In addition,
defendants presented evidence that Foxtown had all the characteristics necessary and desirable
for casino development. The jury is the judge of the credibility of witnesses and the truthfulness
of their statements. It has the benefit of the testimony and its determination is final. The court
may not disturb the jury's determination of value as long as it is within the fair range of the
testimony. In re Widening of Michigan Ave, 298 Mich 614; 299 NW 736 (1941). In each case, it
was for the jury to weigh the testimony of the witnesses to determine the highest and best use of
the property and the fair market value of the property.
II. Motion for new trial
The stadium authority argues that the trial court erred by denying its motion for new trial
on several grounds. This Court reviews the trial court's denial of a motion for new trial for an
abuse of discretion. Kelly v Builders Square, Inc, 465 Mich 29, 34; 632 NW2d 912 (2001).
A. Great weight of the evidence
The stadium authority's sole argument with regard to this issue is that "for all the reasons
discussed [in its argument concerning JNOV], the jury did not have a sound basis in fact for
determining that the highest and best use of the Property was for use in connection with a
casino." As discussed in part I of this opinion, however, in light of the conflicting testimony on
the question of "highest and best use," the issue was properly left to the discretion of the jury.
Foxtown is in the general area of the central business district.
B. Evidence of posttaking sales
The stadium authority argues that the trial court abused its discretion by allowing
defendants' expert appraiser, Michael Ellis, to testify about comparable sales made after the dates
of the takings. The stadium authority's arguments in Docket Nos. 251869 and 251870 are
identical; in fact, the brief in No. 251869 contains the taking date and transcript references from
No. 251870. Accordingly, in No. 251869, the stadium authority does not identify a transcript
reference to an objection to the admission of the evidence. In No. 251870, the stadium authority
did object to the admission of exhibits 9 and 10, showing comparable sales for casinos occurring
in August 1997 and September 1997, one and two months, respectively, after the July 23, 1997,
taking in No. 251870, and three and four months, respectively, after the April 4, 1997, taking in
In a pretrial ruling, the court ruled during a hearing on a motion to exclude "evidence that
surfaced after the date of taking" that "anything that could have been known [to a willing buyer
and willing seller] can be introduced . . . as substantive evidence." The court ruled on
reconsideration that the court would exclude posttaking evidence relevant to the issue of fair
market value to the extent that (1) the evidence was not known in some form before the taking or
(2) the evidence was not that of a comparable sale as determined by the totality of the
circumstances. The court also ruled that the posttaking evidence may be admissible to impeach
the credibility of witnesses.
Upon the stadium authority's objection at trial, defense counsel noted that "this has been
the subject of extensive discussion in the past. The Court has ruled that if they are relatively
close in time, they are fair indicators of value." The trial court stated that it "will be left for the
jury to decide whether or not these are comparables."13
In a rather brief argument, the stadium authority argues that "post-date-of-taking
valuations are totally irrelevant to determine just compensation," that "the market value of the
property must be determined in light of 'all facts affecting the market value' as of the date of
taking," and that "[s]ubsequent values, impacted by subsequent events, are not relevant . . . ." In
support of these propositions, the stadium authority relies on four cases. In re Urban Renewal,
Elmwood Park Project, 376 Mich 311; 136 NW2d 896 (1965), involved a dispute concerning
when the taking occurred. The property owner argued that even though the condemnation action
did not begin until 1962, the condemning authority had taken a series of steps designed to reduce
the value of the property and thereby deprive the owner of just compensation. The trial court
instructed the jury that it was to "'find the value of the property at the time of taking, which is the
time of your verdict and at no other time.'" Id. at 314 (emphasis omitted). On appeal, the
property owner successfully challenged this instruction because it advised the jury that the time
of taking was a time subsequent to when it actually occurred. Id. at 320. The Court did not
consider the issue presented in this case, and the case presents no support for the proposition that
evidence of posttaking sales is necessarily irrelevant.
The trial court apparently ruled that evidence of posttaking comparable sales and valuations
could be used to impeach witnesses and to confirm an expert's valuation as of the date of taking.
Consumers Power I simply explained the definition of fair market value. It made clear
that comparable land sales used by appraisers are not evidence, but are merely tools to help the
appraisers arrive at their estimate of a fair price and value for the condemned property.
Consumers Power I, supra at 745. In using such tools, an appraiser must employ comparable
sales for the light they shed on the value on the date of taking.
The stadium authority also relies on Grand Rapids v Assfy, 44 Mich App 473; 205 NW2d
502 (1973), for the proposition that it is error for the trial court to admit evidence relating to the
value of the property after the date of taking when the taking has changed its value. In that case,
the Court held that photographs taken after the date of the condemnation and showing "damage
which would indicate vandalism" were too prejudicial to admit. Id. at 477. The crucial element
in Assfy was that posttaking evidence was not relevant because of changes since the date of the
taking. The stadium authority merely states in conclusory fashion that the evidence in these
cases "necessarily reflected the changes in the market caused by later significant events." But
the stadium authority fails to point out any basis for concluding that conditions changed.
Generally, a condemnation award is based on the fair market value at the time of the
taking. In re Edward J Jeffries Home Housing Project, 306 Mich 638; 11 NW2d 272 (1943).
Evidence regarding value is to be liberally received. In re Memorial Hall Site (Detroit v Cristy),
316 Mich 215, 220; 25 NW2d 174 (1946). The determination of value is not a matter of
formulas or artificial rules, but of sound judgment and discretion based on consideration of all
relevant facts in a particular case. In re Widening of Bagley Ave, 248 Mich 1, 4; 226 NW 688
In State v Heirs of Halemano Kapahi, 48 Hawaii 101, 111-112; 395 P2d 932 (1964), in
addressing the issue of evidence of comparable sales, the court stated:
"They [the courts] usually assume that if property similar in other respects
has been sold within a reasonable time of the taking, its sale price is relevant in
determining the market value of property taken. As to what constitutes a
reasonable time, a wide discretion is vested in the trial court and the appellate
courts are reluctant to reverse the lower court's determination as a matter of law.
In the usual run of cases, a sale within a year is admitted as a matter of course. In
any case, however, a finding that the evidence falls within a reasonable time does
not imply that market conditions are precisely the same and it remains open to
either party to dispute the significance of the sale by proving a change in market
conditions. Generally speaking, the courts make no distinction between sales
occurring prior to the taking and sales consummated after the date when title has
vested in the condemner. They usually admit the latter type of evidence,
sometimes qualifying their ruling by stating that the sale adduced must not be too
remote in time or that there must be no drastic change in market conditions."
The test is the similarity of the lands and the reasonableness of the time of
sale in order to have any application to the value of the land taken at the time of
condemnation, which is the sole question before the jury.
So long as it meets the test of comparability of commodity and
propinquity, evidence of commerce in land after the date of condemnation has
been held competent and admissible as bearing on the value of the condemned
land at the time of the taking. [Citation omitted.]
The court then concluded:
From the foregoing authorities emerge the following applicable principles:
Where evidence of a comparable sale or lease is offered, the trial judge may, in
his discretion, admit or exclude it considering such factors as time of the
transaction, size, shape and character of the comparable land, and whether there
has been any enhancement or depression in value. It makes no difference whether
the transaction occurred before or after the date of condemnation so long as it is
not too remote a period of time and the land is reasonably comparable, having
been neither enhanced or decreased in value by the project or improvement
occasioning the taking. The weight to be given such evidence is for the jury. The
trial judge's determination as to admissibility or non-admissibility of such
evidence will not be upset on appeal unless it is a clear abuse of discretion. See
also: 18 Am.Jur., Eminent Domain, § 351; 29 C.J.S. Eminent Domain § 273; 30
C.J.S. Eminent Domain § 363; 4 Nichols on Eminent Domain (3d ed.), §
12.311(3); 6 Nichols on Eminent Domain (3d ed.), § 26.731(2); II Wigmore on
Evidence (3d ed.), § 463. [Id. at 112-113.]
The reasoning in Heirs of Kapahi is logical and persuasive and not inconsistent with
Michigan law. It is within the sound discretion of the trial court whether the sale of the property
referred to took place within a reasonable time of the taking. See In re Jeffries, supra at 650.
The trial court's reasoning in the present cases follows the reasoning of the Heirs of Kapahi
court. The trial court did not abuse its discretion by permitting the appraisal experts to utilize
comparable sales occurring within one to four months after the dates of taking in determining
fair market value.
The stadium authority also argues that the posttaking sales evidence was improperly
utilized to impeach Archer's testimony that he had the final decision regarding where casinos
would be located and that he would not have approved casino development on or near
defendants' properties. The trial court's ruling admitting impeachment evidence provides no
grounds for reversal. The trial court allowed posttaking evidence to be admitted solely on the
question of whether Archer's position was consistent.
C. Admission of the Moulton Memo
The stadium authority argues that the admission of a document referred to as the
"Moulton Memo" amounted to error requiring reversal because it was hearsay, was not
authenticated, and no showing was made that Moulton was unavailable for trial. Despite a
record request, a copy of the memo has not been provided to this Court.
At a hearing regarding defendants' motion to admit the Moulton Memo, the stadium
authority objected to admission of the memo, arguing that it was hearsay, that it was "second-
generation," and that the memo did not satisfy the requirements for admission as a business
record. Defendants sought to admit the memo as a business record under MRE 803(6), and also
under MRE 803(24) (equivalent circumstantial guarantee of trustworthiness).
Defendants relied on the deposition testimony of Brian Moulton, corporate director of
gaming development for Harrah's casinos.14 Harrah's, together with the North American Gaming
Group, had formed a partnership known as the "Foxtown Group" to explore the possibility of
off-reservation Indian gaming in the city of Detroit. Moulton apparently testified that the memo
was prepared in the course of his duties and that the memo was prepared from notes taken by
him at an October 10, 1994, meeting he attended to discuss casino development with Archer.
Moulton's memo contains the notes of a meeting with Archer, Moulton, the North American
Gaming Group, and others interested in developing off-reservation Indian gaming. Moulton
indicated that the memo was accurate when it was prepared while it was fresh in his mind. It
was maintained in Harrah's files in the ordinary course of business. Moulton sent the draft
memo to an attorney for Harrah's for review. The attorney offered comments. Moulton
indicated that 12 people received a copy of the final memo, and that he never received feedback
from any of them indicating that the memo was in any way inaccurate.
Defendants argued that the memo was not hearsay under the business record exception of
MRE 803(6) and that the memo had equivalent circumstantial guarantees of trustworthiness
under MRE 803(24). The trial court admitted the document under MRE 803(24).15
MRE 803(24) is the "catch-all" exception to the hearsay rule. Evidence admitted under
MRE 803(24) must satisfy four elements: "(1) it must have circumstantial guarantees of
trustworthiness equal to the categorical exceptions, (2) it must tend to establish a material fact,
(3) it must be the most probative evidence on the fact that the offering party could produce
through reasonable efforts, and (4) its admission must serve the interests of justice." People v
Katt, 468 Mich 272, 279; 662 NW2d 12 (2003).
Considering the totality of the circumstances surrounding the memo, the memo was
sufficiently trustworthy. See id. at 291 n 11. Factors that lead to this conclusion of reliability
include that the memo was made from notes taken at the October 10, 1994, meeting, and that the
memo was drafted shortly after the meeting. The memo was prepared to memorialize the
meeting. The memo was allegedly circulated to 12 persons, at least some of whom attended the
meeting, and no one apparently notified Moulton of any inaccuracies in the memo. Although the
attorney may have reviewed the memo before its circulation, there is no indication that any
comments made by the attorney when reviewing the memo were incorporated into the memo.
The memo tended to establish what was discussed at the meeting and was the most probative
documentary evidence of what was discussed at the meeting. And the general purpose of the
hearsay rules, as well as the interests of justice, was best served by the admission of the memo.
A copy of the deposition has not been provided to this Court.
Although not entirely clear, it also appears that the trial court admitted the memo under MRE
The trial did not abuse its discretion in ruling that the memo was admissible under MRE
Even if the trial court erred by admitting the Moulton Memo, any error was harmless.
Evidence regarding the meeting with Archer was presented to the jury through the testimony of
others, including Archer and members of the Foxtown Group. The information contained in the
memo was placed before the jury through the testimony of these witnesses. Thus, the memo was
merely cumulative evidence. Improper admission of evidence is harmless if it is merely
cumulative to other properly admitted evidence. Sackett v Atyeo, 217 Mich App 676, 685; 552
NW2d 536 (1996).
D. Admission of evidence that two witnesses had a previous affiliation with plaintiff 's counsel
The stadium authority suggests that defendants were improperly permitted to introduce
evidence that Archer and another witness for the stadium authority were previously affiliated
with the law firm representing the stadium authority. It contends that "[t]his evidence was not
relevant to the value of the Property or its highest and best use" and should have been excluded
under MRE 403. Without any citation of the record or elaboration, the stadium authority asserts
that "[d]efendant[s] insinuated, without any basis in fact, that the witnesses were less believable
because of their former association." However, it is always permissible upon cross-examination
of an adverse witness to pursue facts that may bear on a witness's bias. People v Layher, 464
Mich 756, 768; 631 NW2d 281 (2001); Hayes v Coleman, 338 Mich 371, 381; 61 NW2d 634
(1953). A witness's credibility is a primary question for the jury to evaluate, and questions
eliciting bias, prejudice, or interest are appropriately allowed within the trial court's discretion.
The trial court did not abuse its discretion by permitting defendants to question the witnesses
about their affiliation with the stadium authority's counsel.
E. The stadium authority's requests regarding order of proof and special jury instructions and
The stadium authority alleges error in the trial court's rulings requiring the stadium
authority to present its proofs first and rejecting several special jury instructions "addressing the
connection between the range of testimony and the jury's award of compensation, speculative
theories, and the burden of proof." It contends that the order of proofs suggested to the jury that
the stadium authority carried the burden of establishing just compensation and that the
instructions given to the jury did not adequately apprise it of its need to make an award based on
facts known to a buyer as of the date of taking. However, the stadium authority does not make
reference to the transcript and does not elaborate on its assertions. The stadium authority does
not set forth the proposed jury instructions and does not explain why the standard jury
instructions as given by the court were inadequate.
MCL 213.52 of the Uniform Condemnation Procedures Act, MCL 213.51 et seq.,
provides that "[a]ll . . . court rules applicable to civil actions shall apply to condemnation
proceedings except as otherwise provided in this act." MCR 2.507 governs trials. MCR
2.507(B) states that "[u]nless otherwise ordered by the court, the plaintiff must first present the
evidence in support of the plaintiff 's case." A review of the record reveals that the trial court
informed the jury of the order that proofs would be presented. Nothing in the instructions
suggested that the order of proofs was connected to the burden of proof.16
Additionally, the court instructed the jury that "the market value of the property must be
determined as of [April 4, 1997, in No. 280169 and July 23, 1997, in No. 280170]" and that just
compensation must be based on "what a prudent buyer could or would have known as of the date
of taking." The court also instructed the jury not to consider posttaking evidence substantively:
Some testimony was received as to actions which occurred after the date
of taking on the location of casinos. I instruct you that the postdate of taking
activity could not have been known by a prudent buyer before the date of taking.
You may consider postdate of taking evidence when judging the credibility of
Thus, the stadium authority's arguments as presented are without factual support and are without
F. The presence of a tainted juror (Docket No. 251869 only)
The stadium authority asserts that it is entitled to a new trial on the basis of juror bias or
misconduct, MCR 2.611(A)(1)(b). On the third day of trial, a juror sent a note to the trial court
indicating that she had personal knowledge of an offer to purchase the dilapidated Women's City
Club in Detroit. The trial court noted that the juror had no reason to suspect that the proofs in
this case would focus on the city club property. The court invited counsel to question the juror.
The stadium authority's counsel asked whether, if there were testimony regarding an offer for the
city club, it would affect her view of the case. The juror responded, "Yes."
Upon questioning by the court, the juror indicated that she would try to comply with the
jury instruction requiring a witness to disregard any information about a particular case and to
decide the case on the basis of the evidence introduced in court. After an off-the-record
discussion, counsel stipulated that there was no objection to the continuation of the juror on the
jury and that no basis had been presented to the court on which she could have been excused.
The following Monday, counsel for the stadium authority requested to withdraw his
earlier stipulation and urged the court to excuse the juror. The trial court, noting that no
A Michigan standard jury instruction regarding condemnation, SJI2d 90.03, now M Civ JI
90.03, recommended that no instruction on the general burden of proof be given in
condemnation cases. The comment to SJI2d 90.03 stated that "[t]here is strictly speaking no
general burden of proof applicable to all issues in all condemnation proceedings." (Emphasis in
original.) The comment specifically stated that neither party has the burden of proof on the issue
The stadium authority also states, without any argument or authority, that "the instructions
also failed to instruct the jury on the issues of . . . speculation, and assemblage." This Court need
not consider this argument that is not properly presented.
testimony had been presented about the Women's City Club, concluded that there was no failure
There was considerable testimony about the YMCA and considerable
testimony regarding DCL. And the witnesses have indicated offers that were
made on that property by option or otherwise.
The queation [sic] that was asked of the jurors during voir dire were
questions that had to do with whether or not they owned any property in the area
and whether or not they knew where the Fox Theater was and what the area was.
No juror was ever asked if they had been inside buildings in close proximity.
They were asked about Second City and about the Fox Theater. Therefore, this
Court cannot find that the juror failed to disclose any information.
There being no failure to disclose, and, frankly, no inquiry, specific
inquiry made even to other jurors, the Court would not find that—find that this
jury [sic] has committed any even unintentional error in not disclosing, and the
information is that she is concerned about the information that has absolutely
nothing to do at this point with this case.
The jurors were not questioned regarding whether they had any knowledge of the price of
any buildings sold in the central business district or whether they knew details about the sale or
purchase of property in the downtown area. There is no indication that the juror failed to
disclose information asked of her during voir dire. Because the juror did not fail to disclose or
otherwise fail to answer truthfully, the stadium authority cannot demonstrate that it would have
challenged for cause or otherwise dismissed the juror. Further, the record is not sufficient to
make a finding that a challenge for cause would have been successful in light of the juror's
statement that she could decide the case without considering the information. In addition, the
stadium authority merely speculates that the "jury's verdict reflects this personal knowledge, and,
as such, the foreperson's prejudice apparently infected the entire jury." There is no indication
that the juror was biased as a result of her knowledge or that she shared information regarding
the city club sale with the other members of the jury.
G. The admission of evidence regarding fair market value (Docket No. 251869 only)
Without citation of the record to establish that this issue is preserved, the stadium
authority asserts that it is entitled to a new trial because of the erroneous admission of testimony
of casino gaming expert Robert Kleiman through the testimony of appraiser Ellis. The stadium
authority contends that Kleiman's report was inadmissible and, therefore, it was error for Ellis to
rely on the report. A review of the record reveals that Kleiman never testified at trial and that his
deposition was not admitted. A review of Ellis's testimony reveals that Ellis never testified that
he relied on Kleiman's work in forming his opinion; indeed, Kleiman's name is never mentioned.
Rather, it appears that Ellis likely reviewed Kleiman's report regarding property values in other
gaming cities as one of the 10,000 to 15,000 documents he reviewed in an attempt to determine
fair market value. The record does not factually support the stadium authority's argument.
Nonetheless, the stadium authority concedes that under the version of MRE 703 in effect at the
time of trial, it was not necessary that the facts or evidence underlying an expert's opinion be
admitted or even admissible. Swanek v Hutzel Hosp, 115 Mich App 254, 260; 320 NW2d 234
(1982). This issue is without merit.
H. The admission of evidence of business interruption damages (Docket No. 251870 only)
The stadium authority contends that the trial court erred by allowing defendants James
Wingate, Sr.; Alzalia City Cab Company; Transport Systems Company; and City Cab Company
to introduce evidence concerning damages related to lost profits in support of their claim for
business interruption damages.
Damages resulting from business interruption are compensable in condemnation cases,
provided the damages can be proven with a reasonable degree of certainty. Detroit v Hamtramck
Community Fed Credit Union, 146 Mich App 155, 158; 379 NW2d 405 (1985). But damages
related to lost profits are not recoverable in a business interruption case. See In re Slum
Clearance, 332 Mich 485, 496; 52 NW2d 195 (1952). The stadium authority does not dispute
that relocation costs are proper business interruption damages. It contends, however, that
ongoing costs incurred as a result of the new location, such as the increased cost of defendants'
ongoing van operations because of the new location and the increased operations costs of
defendants' new site, simply reduce the profitability of defendants' businesses and constitute
ongoing claims of lost profits.
In Detroit v Larned Assoc, 199 Mich App 36; 501 NW2d 189 (1993), the expert witness
testified that because of an increase in rent, an increase in advertising expenses, and a steady
decline in sales revenue, defendant Buckland-Van Wald would suffer $4,888,000 in business
interruption damages as a result of the condemnation. The expert arrived at this figure by
projecting Buckland-Van Wald's losses over the 15-year period of its new lease and reducing the
amount to present value. On appeal, this Court held that the expert's testimony regarding
expenses such as rent and advertising was proper and that the jury was free to accept or reject it.
Id. at 41. However, with regard to testimony regarding the decline in sales revenue, this Court
we agree with the city that the bulk of [the expert's] testimony concerning
damages related to lost profits. Whether couched in terms of a decline in sales,
loss of income, or loss of earnings, we think it clear that Buckland-Van Wald's
claim for damages was premised on its alleged inability to achieve its former level
of profitability as a result of being forced to relocate. [Id. at 41-42].
In the present case, Thomas Czubiak testified that defendants would incur increased costs as a
result of the need to travel to and from a location further away from the location where the bulk
of defendants' business occurred. According to Czubiak, each van run would result in increased
labor costs and increased van operation costs that were not incurred when defendants operated
the businesses from their former location. He calculated total business interruption costs,
including increased rent and advertising, at $179,181. The bulk of Czubiak's testimony
regarding damages related to labor costs and increased van operation costs that are a result of
being forced to relocate, damages that clearly relate to lost profits and not business interruption
damages. Larned Assoc, supra. This testimony should not have been presented to the jury. We
therefore vacate the award for business interruption damages and remand this matter to the trial
court for retrial on the business interruption theory only.18
Docket Nos. 251799, 251800, 251801, 251802, and 251869 are affirmed. Docket No.
251870 is affirmed in part, reversed in part, and the matter is remanded. Jurisdiction is not
/s/ E. Thomas Fitzgerald
/s/ Richard A. Bandstra
/s/ Patrick M. Meter
In light of our resolution, we need not address the cross-appeals.