Coming to you from Virginia – care of our Owner’s Counsel colleague Robert Thomas – is the case of Ramsey v. Commissioner of Highways, which involves Virginia DOT’s attempt to change its valuation position at trial. Thomas’ Blog entry here. In a nutshell, DOT offered the owner $246,292 before trial (based on an appraisal prepared by Mr. Savage), but by the time of trial, Savage had retired and the State proffered a new appraiser who opined that the property was only worth $92,127. It appears that the trial court condoned the practice, and also precluded the owner from introducing the Savage appraisal at trial on the basis that the initial offer was a non-admissible settlement offer. The jury awarded $234,032.00 and the property owners’ appealed.
The owners argue on appeal that under Virginia law, the initial offer is jurisdictional and must be considered by the jury in the condemnation valuation proceedings.
The case is now pending before the Virginia Supreme Court.
The good news for Virginia property owners is that New Jersey law provides a yuletide blessing in the form of a case right on point. State v. Fairweather, 298 N.J. Super. 421 (App. Div. 1997). In that case, the State initially offered $23,000 for the taking, but at the time of trial, offered evidence that the property was only worth $21,000 (the State’s original appraiser had died before trial). The property owner appealed the verdict complaining of, inter alia, the court permitting evidence of value at less than the State’s original jurisdictional offer. The Appellate Court agreed. “Although it is clear that the offers themselves are not evidential under the statute, judicial estoppel prevents the State from taking a different position at trial concerning the value of the property from that which it had assumed when it made its offers and deposited with the court clerk what it considered to be the property’s fair market value.” (at 425). The New Jersey courts routinely and consistency apply Fairweather to prevent a condemnor from engaging in such litigation tactics clearly designed to reduce a property owner’s constitutional just compensation.
Hopefully, the Virginia Supreme Court will do the same, and reaffirm what we all know to be true: Yes, Virginia, there is a Santa Claus.
Merry Christmas and Happy Holidays to all.