Bruce W. Rademann and Oakfield Stone Company, Inc., a domestic corporation, Plaintiffs-Appellants, v. State of Wisconsin Department of Transportation, Defendant-Respondent, 252 Wis. 2d 191

SNYDER, J. ¶ 1. Bruce W Rademann, as president of Oakfield Stone Company, Inc. (Oakfield) appeals a judgment awarding the Department of Transportation (Department) $302,500, the difference between the trial court's verdict in Rademann's condemnation case ($57,500) and the basic award Rademann received from the Department before trial ($360,000).

Rademann argues that the trial court erroneously exercised its discretion when it (1) held that the market approach to appraisal of the subject properties was admissible; (2) barred the use of the income approach to appraisal of the subject properties; (3) prevented Rademann from discovering a purchase contract related to the sale of the Fond du Lac Stone Company; and (4) held that the three parcels at issue should be considered as one parcel and that the middle parcel was not landlocked after the taking.

We conclude that the trial court reasonably exercised its discretion as to all of these issues and affirm the judgment. FACTS ¶ 2. Rademann and Oakfield were adjacent owners of certain real estate located in the town of Byron in Fond du Lac county. The parcels at issue included Old Parcel #19, Old Parcel #20 and Old Parcel #24. Old Parcel #19 was the western-most parcel containing 8.09 acres and owned by Oakfield since August 1985. Old Parcel #20 was the middle parcel containing 26.68 acres and owned by Rademann since June 26,1991.

Old Parcel #24 is the eastern-most parcel containing 37.97 acres and owned by Oakfield since June 23, 1989. ¶ 3. Old Parcel #20, the middle parcel, contained an active, operating, fully-permitted quarry from which building stone, or dimension stone, was quarried. To the west, Old Parcel #19 contained some buildings which were used in this quarrying operation. To the east, Old Parcel #24 contained a deposit of building stone beneath its surface and had all the necessary permits for quarrying; however, quarrying operations had not commenced on Old Parcel #24 at the time of the taking. ¶ 4.

The Department exercised its power of eminent domain under Wis. Stat. § 32.05 and acquired a portion of all three parcels for highway improvement purposes. The Department took title to a total of approximately ten acres from all three separate parcels. The Department obtained appraisal reports from professional appraisers prior to issuing its Award of Damages. Appraiser J. Martin Hogan, Jr. and review appraiser Michael A. Pitts appraised Old Parcel #20 using an income approach and concluded that just compensation was $229,800. Appraiser Robert E.

Davies, using an income approach, concluded that just compensation for the taking of a portion of all three parcels was $331,000. Appraiser Curt G. Olson concluded that just compensation for the taking of a portion of all three parcels was $360,000. Olson valued the deposit stone in Old Parcel #20 using a capitalization of royalties version of the income approach and valued the underlying land using a market approach. ¶ 5. The Department paid $360,000 as its Award of Damages, thereby adopting Olson's conclusion, and recorded its Award of Damages on March 15, 1996. ¶ 6.

Rademann and Oakfield filed an appeal from the Award of Damages on July 19, 1996. The sole issue in the appeal was the amount of just compensation that the Department must pay to Rademann for its partial taking from each of the three parcels. ¶ 7. Rademann retained Craig Hungerford as an appraiser. Hungerford used a capitalization of royalties version of the income approach to appraisal and in his final appraisal report concluded that just compensation for the taking from the three parcels was $3,860,000. The Department obtained David L. Gagnow as its appraiser for trial.

Gagnow appraised the three parcels using the market approach and concluded that just compensation for the taking from the three parcels was $57,500. ¶ 8. Rademann and Oakfield filed several pretrial motions; Rademann and Oakfield filed a motion to trifurcate the trial, asking for a separate trial for each of the three parcels. The trial court ruled that this issue had not been timely raised. Rademann also moved to have Old Parcel #20 declared landlocked as a result of the taking. The trial court held that the three parcels should be considered as one parcel for the purposes of this litigation. ¶ 9.

Rademann also filed a motion to bar the use of the market approach to appraisal of the three parcels. The Department filed a simultaneous motion to bar the use of the income approach of appraisal at trial. The trial court ruled in favor of the. Department, allowing the use of the market approach and barring the use of the income approach.

After the trial court prohibited the use of the income approach and only allowed use of the market approach to appraisal, Hun-gerford, Rademann's appraiser, issued a second report in which he concluded that he could not reach a conclusion to a reasonable degree of appraisal certainty regarding just compensation relying on the market, or comparable sales, approach. ¶ 10. Rademann then sought information relating to the sale of a different quarry operation. In 1997, Michels Pipeline Construction Company (Michels) purchased a building stone quarry business known as Fond du Lac Stone Company via a stock transfer.

Rademann issued subpoenas duces tecum to take depositions of the principals to the stock transaction, commanding the witnesses to bring with them any and all documents related to the terms of the transaction. The Department filed a motion to bar Rademann from obtaining a copy of a purchase contract relating to that sale and from discovering the details of that transaction. ¶ 11. The trial court agreed with Rademann that if the parties to the stock sale had placed an independent fair market value on the real estate, that information would be relevant.

However, the trial court also noted that unless the parties placed an independent value on the real estate, the information would be irrelevant income evidence as the sale was via a stock transfer. Initially, the trial court denied the Department's motions but limited Rademann's inquiry to whether or not any monetary value was placed on the real estate during negotiations.

An executive from Fond du Lac Stone Company testified during depositions that there was never any discussion during negotiations of purchasing the real estate separately, there was no separate allocation of value for the real estate and no appraisals of the real estate had been done. Because no independent value had been placed on the real estate, per the trial court's ruling any information relating to the stock transfer was considered irrelevant income evidence and inadmissible. Rademann then filed a motion to compel Michels to produce a copy of the purchase contract for the trial court to review in camera.

The trial court denied this motion on September 16, 1999. ¶ 12. After disposing of these motions, the parties stipulated to waiving a jury trial and the just compensation issue was tried to the court. After trial, the court awarded compensation of $57,500 to Rademann based on the opinion of the Department's appraiser. Because the Department had paid Rademann $360,000 as its Award of Damages, the final judgment reflected a pay-back by Rademann to the Department of $302,500 plus interest. The trial court also awarded the Department its taxable costs and disbursements. Rademann then commenced this appeal.

Further facts will be provided in this decision as necessary. DISCUSSION ¶ 13. The sole issues to be tried in an eminent domain case are questions of title and just compensation. Wis. Stat. § 32.05(11). Here we address only the issue of just compensation. The rules that govern the determination of just compensation are provided in Wis. Stat. § 32.09. In a partial takings case, like the one here, the measure of just compensation is the difference between the fair market value of the whole property before the taking and the fair market value of the remaining property immediately after the taking.

Sec. 32.09(6); Besnah v. City of Fond du Lac, 35 Wis. 2d 755, 758, 151 N.W.2d 725 (1967). ¶ 14.

Rademann makes four arguments on appeal: (1) the trial court erred in holding that the market approach to appraisal of the subject properties was admissible; (2) the trial court erred in barring the using of the income approach to appraisal of the subject properties; (3) the trial court erred in preventing Rade-mann from discovering a purchase contract related to the sale of the Fond du Lac Stone Company; and (4) the trial court erred by holding that the three parcels should be considered as one parcel and Old Parcel #20 was not landlocked after the taking. ¶ 15.

The admission of evidence regarding fair market value in condemnation cases is left to the trial court's discretion. Calaway v. Brown County, 202 Wis. 2d 736, 741, 553 N.W.2d 809 (Ct. App. 1996). The burden of showing an unreasonable exercise of discretion rests upon the party challenging the trial court's exclusion of that evidence. Id. Here, that burden rests upon Rademann. Each of Rademann's arguments will be addressed separately. Market Value Approach ¶ 16. Rademann contends that the trial court erred when it admitted evidence of market sales offered by the Department.

Rademann argues that the sales utilized were not comparable and therefore not relevant to fair market value. We disagree. ¶ 17. Sales of comparable property may be considered as a basis for determining fair market value. Wis. Stat. § 32.09(lm). A sale is comparable "if it was made within a reasonable time before or after the date of evaluation and the property is sufficiently similar in the relevant market, with respect to situation, usability, improvements and other characteristics, to warrant a reasonable belief that it is comparable to the property being valued." Id. ¶ 18.

Comparable sales evidence is admissible as either independent direct evidence of the land's value or for the limited indirect purpose of demonstrating a basis for and giving weight to an expert opinion. Calaway, 202 Wis. 2d at 741. The general rule regarding admission of comparable sales as direct evidence of value is more restrictive than the admissibility rule when the evidence is offered only to show a basis for the opinion of an expert witness. Id.

Here, the trial court found that the evidence of comparable sales was offered only as a basis for Gagnow's opinion, implicating the less restrictive standard. ¶ 19. The question of whether comparable sales are to be admitted is within the discretion of the trial court. Leathem Smith Lodge, Inc. v. State, 94 Wis. 2d 406, 415, 288 N.W.2d 808 (1980). Where the evidence is offered as the basis for an expert's opinion, the extent to which the offered sales are truly comparable goes to the weight of the expert's testimony and not to admissibility. Weeden v.

City of Beloit, 29 Wis. 2d 662, 668, 139 N.W.2d 616 (1966). ¶ 20. A trial court's determination of the acceptability of sales as comparables will not be.reversed in the absence of clear error. Id. When we are asked to review such discretionary rulings, "we look not to see if we agree with the circuit court's determination, but rather whether 'the trial court exercised its discretion in accordance with accepted legal standards and in accordance with the fact[s] of record.'" Vivid, Inc. v. Fiedler, 219 Wis. 2d 764, 794, 580 N.W.2d 644 (1998) (citation omitted).

"We must be mindful that the court below passed upon this matter under circumstances more favorable for arriving at a just result than are afforded here," Weeden, 29 Wis. 2d at 666 (citation omitted), and we must search the record for support of the trial court's evidentiary ruling. Calaway, 202 Wis. 2d at 744. ¶ 21. Prior to trial, Rademann moved to exclude the Department's selected market sales as evidence of the fair market value of the east 22 acres of Old Parcel #20.

Rademann argued that the sales utilized by Gag-now in his appraisal were not comparable because, save one, soil borings were not done to determine to a reasonable degree of scientific certainty the nature and extent of building stone deposit on each of the properties. The trial court denied Rademann's motion. ¶ 22. The trial court did not misuse its discretion when it admitted evidence of comparable sales. Gagnow researched land sales that were purchased for quarrying purposes. All of the sales were clustered in the towns of Byron, Oakfield, Brotherton and Eden in Fond du Lac county.

Buyers of all fourteen comparable properties were known quarry operators. All of the comparable properties contained building stone deposits and all of the sites were adjacent to either existing or old quarries. Five of the sales were active quarries at the time of purchase. In fact, in the majority of the sales, the prices paid for the property were significantly above agricultural land prices, selling for between $1,489 and $10,251 per acre. ¶ 23. Of these fourteen comparable sales, only one sale involved the taking of borings.

However, the price paid in that sale, $3,287 per acre, was in accord with the nonboring sales and Gagnow concluded that the presence of borings did not make a discernible difference in the market. ¶ 24. Here, Rademann was given ample opportunity to challenge the comparability of the fourteen sales utilized by Gagnow in appraising the property. Rade-mann consistently argued that the only way to properly evaluate the land was through use of soil borings and that sales without the benefit of borings are purely speculative.

While Rademann never asked Gagnow about the effect of borings on the comparable sales, Rademann cross-examined Gagnow about specific characteristics of the fourteen sales, such as the mining experience of buyers, the availability of mining permits and applicable zoning laws, the extent of overburden on each property and the specific product being mined (building stone versus aggregate). ¶ 25. In closing arguments, Rademann asserted that because of these differences, and the lack of borings taken, the sales used by Gagnow should be accorded little, if any, weight.

The trial court concluded otherwise: With respect to Mr. Gagnow, and all of the comparable sales were gone into in great detail as far as buyer, seller, number of acres, price per acre, price in total, zoning, overburden, et cetera. What I found most helpful to the Court here was the general factors or threads that ran through the comparable sales, that being Mr. Gagnow's testimony that building stone was on each comparable seam .... I also found significant the fact that all of the buyers were known quarry operators.

That the parcels were adjacent or the purchase parcels were adjacent to existing or old quarries, that the overburden was minimal, and that the general prices were approximately two to three times agricultural which ties into what Mr. Buechel testified to as far as their general practice. Mr. Southwick first argues that the comparable sales are entitled either to no weight whatsoever or very little weight. The first subargument there is that you do not have the knowledgeable buyer and seller.

My first comment would be there's nothing in the record specifically to indicate that the sellers are not knowledgeable generally about what may be below their land subsurface .... [Tjhere's nothing directly in the record in that regard. Then Mr. Southwick argues that the only way his client, for example, and the other quarry operators can determine with absolute certainty the extent of any subsurface deposits is soil borings. And it's clear here that neither Mr. Buechel nor Mr. Rademann have ever done that prepurchase. But Mr.

Southwick argues .. . the Court should hold itself to a higher standard than the standard that the quarry operators set for themselves when they make the purchases. To my way of thinking, Mr. Buechel and Mr. Rademann have been in the business forever. I mean, these guys know the business. They know what they're doing. They know how to make money in the business. They know how to purchase land. And neither one of them has ever paid anything remotely close to even the $44,000 per acre figure being requested by Mr. South-wick at this juncture of the case.

And they make their business decisions not based on borings, not — apparently not having to know the extent of the tonnage and the extent of the subsurface deposits, but rather using either gut instincts or their best judgment... looking at the various parcels if there's an open area on it or else based on the assumption that... a parcel adjacent to operating quarry generally has the same type of stone on it, and that's borne out by some of the purchases by the various quarries as reflected in the 14 comparable sales. So to the extent that I'm asked to equate Mr. Rademann and Mr.

Buechel and the other quarry owners as in effect ignorant purchasers of these parcels, the record. .. does not support that whatsoever .... I tend to agree . .. that the quarry owners set the market, and they do that based on their knowledge and experience, and what they pay is what they pay. To my way of thinking, that is the market. So I disagree with Mr. Southwick's argument that in effect Mr. Rade-mann and the other quarry owners are in effect ignorant purchasers of this land and the market is actually much different than the market that has been set by virtue of their own purchases .... ¶ 26.

Whether or not borings were a necessary component to determine comparability goes to the weight, not the admissibility, of the evidence; it is generally a question for the trier of fact to determine whether the proposed factor underlying the opinion of the expert as to the fair market value, here the borings, is one which would have reasonably been considered by a willing buyer and a willing seller. Weeden, 29 Wis. 2d at 668; Volbrecht v. State Highway Comm'n, 31 Wis. 2d 640, 645, 143 N.W.2d 429 (1966). Rademann was given ample opportunity to challenge the comparability of these fourteen sales with his property.

The trial court did not erroneously exercise its discretion when it found the sales comparable and admitted evidence of market sales. Income Approach ¶ 27. Rademann next argues that the trial court erred in barring the admissibility of the income approach to appraisal of the subject properties. We disagree. ¶ 28. As a starting point, it should be noted that income evidence is never admissible where there is evidence of comparable sales. Leathem Smith, 94 Wis. 2d at 413.

Evidence of net income is ordinarily inadmissible for purposes of establishing property values in condemnation cases involving commercial enterprises because income is dependent upon too many variables to serve as a reliable guide in determining fair market value. Id. ¶ 29. Accepting evidence of net profits as a factor to consider in arriving at fair market value necessarily opens the door for an exploration of the accounting methods and systems of operation of the business and raises questions of the efficiency and skill of the operator. Id. at 416.

Valuation testimony based on income generated by owner-managed property is excluded as overly speculative because it is nearly impossible to ascertain how much of the income can be attributed to the owner's management and the resultant consumer goodwill. Id. Income from owner-managed property does not reflect its fair market value because an appraiser cannot predict how good a replacement a potential buyer might be for the existing owner-manager. Id. A recent arm's-length sale of the subject property; or sales of reasonably comparable land, represent the best information with which to determine fair market value.

Waste Mgmt., Inc. v. Kenosha County Bd. of Review, 184 Wis. 2d 541, 556, 516 N.W.2d 695 (1994). ¶ 30. Rademann argues that Vivid, 219 Wis. 2d at 764, modifies the decree of Leathern Smith that income evidence is never admissible where there is evidence of comparable sales. According to Rademann, Vivid holds that any professionally accepted method of appraisal is admissible in just compensation cases with objections going to the weight, not admissibility, of the evidence.

Rademann also argues that Vivid sets forth three exceptions to the Leathern Smith rule regarding the inadmissibility of income evidence when comparable sales exist: (1) profit is produced without the owner's labor, (2) profits derived from the property's use are its chief source of value, and (3) the property is so unique that comparable sales data is unavailable. Vivid, 219 Wis. 2d at 792. ¶ 31. We disagree that Vivid so altered the landscape of Leathern Smith as to disturb its ruling. These three exceptions set forth in Vivid were recognized in Leathern Smith as well.

However, the issue in Vivid was the measure of just compensation for highway billboards under Wis. Stat. § 84.30 (1997-98) and the Vivid trial court admitted testimony regarding both the market and the income approach. Vivid, 219 Wis. 2d at 769, 772-73. The market approach used a Gross Income Multiplier (GIM) by looking to the sale of reasonably comparable billboards. Vivid, 219 Wis. 2d at 784. Vivid speaks only to the valuation of billboards using a GIM. ¶ 32. Again, we will only reverse a trial court's ruling to exclude income evidence if a trial court erroneously exercised its discretion.

See Leathem Smith, 94 Wis. 2d at 415. In light of the availability of comparable sales, under Leathern Smith the trial court acted within its discretion when it excluded the income approach to appraisal of the subject properties. Discovery ¶ 33. Rademann also argues that the trial court erroneously exercised its discretion when it prevented him from discovering the May 16, 1997 purchase contract related to the corporate stock sale of Fond du Lac Stone Company to Michels Pipeline Construction Company. We disagree. ¶ 34.

The standard of review of a discovery order is whether the trial court erroneously exercised its discretion in ordering or prohibiting the discovery. Earl v. Gulf & W. Mfg. Co., 123 Wis. 2d 200, 204, 366 N.W.2d 160 (Ct. App. 1985). Rademann has the burden of establishing that the trial court erroneously exercised its discretion. Swan Sales Corp. v. Jos. Schlitz Brewing Co., 126 Wis. 2d 16, 28, 374 N.W.2d 640 (Ct. App. 1985). ¶ 35. We have already held that the trial court properly concluded that income evidence was inadmissible.

Because an executive from Fond du Lac Stone Company testified that there was never any discussion during negotiations of purchasing the real estate separately, no appraisals of the real estate had been done and no independent value had been placed on the real estate, information relating to the stock sale was irrelevant and therefore inadmissible income evidence. Rademann cites no authority for his contention that he is entitled to discover this document. We decline to review arguments unsupported by reference to legal authority. State v. Pettit, 171 Wis. 2d 627, 646, 492 N.W.2d 633 (Ct. App. 1992).

Three Parcels As One ¶ 36. Finally, Rademann argues that the trial court erroneously exercised its discretion by holding that the three parcels at issue should be considered as one parcel and that Old Parcel #20 was not landlocked after the taking. The trial court, agreeing with the Department, held that this motion was untimely. We concur. ¶ 37. Wisconsin Stat. § 32.05(5) states in relevant part: COURT ACTION TO CONTEST RIGHT OF CONDEMNATION.

If an owner desires to contest the right of the condemnor to condemn the property described in the jurisdictional offer, for any reason other than that the amount of compensation offered is inadequate, the owner may within 40 days from the date of personal service of the jurisdictional offer or within 40 days from the date of postmark of the certified mail letter transmitting such offer, or within 40 days after date of publication of the jurisdictional offer as to persons for whom such publication was necessary and was made, commence an action in the circuit court of the county wherein the property is located, naming the condemnor as defendant.

Such action shall be the only manner in which any issue other than the amount of just compensation, or other than proceedings to perfect title under ss. 32.11 and 32.12, may be raised pertaining to the condemnation of the property described in the jurisdictional offer ... .If the action is not commenced within the time limited the owner or other person having any interest in the property shall be barred from raising any such objection in any other manner. (Emphasis added.) Thus, § 32.05(5) requires that all issues other than that of just compensation be presented to the trial court within forty days after the owner's receipt of the jurisdictional offer by personal service.

Arrowhead Farms, Inc. v. Dodge County, 21 Wis. 2d 647, 651, 124 N.W.2d 631 (1963). The Department paid $360,000 as its Award of Damages and recorded its Award of Damages on March 15, 1996. However, Rademann raised these issues in a motion to the court on March 24,1997, past the forty-day mandate of § 32.05(5). ¶ 38. The property owner may actively participate in every phase of the compensation-fixing process. Arrowhead Farms, 21 Wis. 2d at 651. Wisconsin Stat. § 32.05(5) provides for judicial review of every jurisdictional requirement involved in the process. Arrowhead Farms, 21 Wis. 2d at 651.

The only obligation upon the property owner is that he or she raise jurisdictional objections in a timely and orderly fashion. Id. The matter of just compensation is the crucial issue in any public taking and the statute permits both the administrative body and the trial court to devote full attention to this substantive matter without having the deliberation deflected into consideration of collateral procedural matters by requiring the owner to raise all objections, other than the adequacy of the compensation, within forty days after receipt of the jurisdictional notice. Id.

Because Rademann failed to assert this right within forty days, by the terms of § 32.05(5), he is "forever barred from raising any such objection in any other manner." Arrowhead Farms, 21 Wis. 2d at 652 (citation omitted). CONCLUSION ¶ 39. The trial court did not erroneously exercise its discretion when it admitted evidence of the market approach to appraisal and barred the use of the income approach to appraisal of the subject properties.

The trial court did not erroneously exercise its discretion when it prevented Rademann from discovering a purchase contract related to the sale of the Fond du Lac Stone Company. Lastly, the trial court did not erroneously exercise its discretion when it held that Rademann's motion to treat the three parcels at issue as one parcel and determine that the middle parcel was landlocked after the taking was untimely. We conclude that the trial court reasonably exercised its discretion as to all of these issues and affirm the judgment. By the Court. — Judgment affirmed.

For the purposes of this appeal, the facts have, for the most part, been gleaned from Rademann's briefs. The Department did not provide a separate factual recitation in its brief but instead includes facts within each of its separate argument sections. Rademann has not provided consistent and consistently accurate citations to the record to corroborate the facts set out in his briefs. Such failure is a violation of Wis. Stat.

Rule 809.19(1)Cd) and (3) (1999-2000) of the rules of appellate procedure which requires parties to set out facts "relevant to the issues presented for review, with appropriate references to the record." We therefore hold the parties to those facts set forth in their briefs.

Furthermore, while the trial court took great pains to compile a clean and understandable record ("I pity the court of appeals trying to follow this" and "I'm very sensitive to making a good record and having them have access to these matters versus trying to go through a foot and a half worth of materials"), the voluminous record in this case was compiled backwards and therefore extremely difficult to utilize for reference. It is the appellant's responsibility to ensure that the record is sufficient to facilitate appellate review. See Seltrecht v. Bremer, 214 Wis. 2d 110, 125, 571 N.W.2d 686 (Ct. App. 1997).

All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted. Rademann unsuccessfully sought an interlocutory appeal of this ruling. According to Rademann, a boring is "a process in which the surface of the earth is drilled into and samples about 10 feet length [sic] are removed for study." Rademann himself admitted that he had never done a boring on a piece of property prior to purchase, as did Rademann's own witness, quarry operator Dennis Buechel. Gagnow, the State's expert appraiser, was the only expert appraiser who testified as to the value of the property taken.

If the trial court were to have accepted Rademann's argument that Gagnow's opinion was of no value, it is unclear what value should have been placed on the subject property as Rademann did not call an expert appraiser and presented no evidence as to the value of the property using the comparable sales method, except for that amount set forth in his closing argument. The burden of proof in eminent domain proceedings on the question of damages rests upon the landowner. Hietpas v. State, 24 Wis. 2d 650, 656, 130 N.W.2d 248 (1964).

A GIM is a unit of comparison that is determined by dividing the sales price of a group of signs by the annual gross rental income generated by those signs. Vivid, Inc. v. Fiedler, 219 Wis. 2d 764, 784, 580 N.W.2d 644 (1998).