Michigan Dept of Transportation v. Panacea Redevelopment Corp

STATE OF MICHIGAN

COURT OF APPEALS

MICHIGAN DEPARTMENT OF UNPUBLISHED

TRANSPORTATION,, September 22, 2015

Plaintiff-Appellant,

v No. 319356

Wayne Circuit Court

PANACEA REDEVELOPMENT CORP., ELIXIR LC No. 11-008789-CC

PROPERTIES, INC., TITAN DEVELOPMENTS,

LLC, TITAN DEVELOPMENT, LLC, and

COMERICA BANK,,

Defendants-Appellees,

and

HOVARTH TOWERS, LLC, and OAKLAND

COUNTY TREASURER,

Defendants.

Before: BECKERING, P.J., and CAVANAGH and SAAD, JJ.

PER CURIAM.

In this condemnation case, plaintiff, Michigan Department of Transportation, appeals as

of right the trial court’s judgment granting a motion for a directed verdict in favor of defendants

Panacea Redevelopment Corp., Elixir Properties, Inc., and Titan Developments, LLC,1 awarding

them $835,000 as just compensation for the partial taking of their property. The trial court

granted the motion after a jury trial at which an expert for defendants Panacea, Elixir and Titan

testified concerning the value of the property taken. Before trial, plaintiff and defendants

Panacea, Elixir and Titan filed cross-motions in limine, both of which sought to exclude the

1

Titan Development, LLC, (singular) was initially named as a separate defendant due to a

misspelling of the name Titan Developments, LLC, (plural). Upon discovery of the mistake,

Titan Development was voluntarily dismissed from the action. Comerica Bank defaulted before

entry of the order at issue on appeal.

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opposing side’s respective appraisal of the property. The trial court granted defendants’2 motion

and denied plaintiff’s motion. On appeal, plaintiff argues that the trial court erred in excluding

plaintiff’s appraisal, in declining to exclude defendants’ appraisal, and in granting defendants’

motion for a directed verdict. We vacate the trial court’s judgment and remand for a new trial

consistent with this opinion.

I. FACTS AND PROCEDURAL HISTORY

A. INITIATION OF CONDEMNATION PROCEEDINGS

This case arises from plaintiff’s taking of portions of defendants’ property located at

2944 Junction Avenue and 2850 Junction Avenue in Detroit, occurring on July 22, 2011. The

property located at 2944 Junction Avenue, referred to as parcel one, is a 4.25-acre paved lot,

triangular in shape, and enclosed by a cyclone fence. Its improvements include a security

camera and an 800-square-foot modular office that houses the camera’s monitoring equipment.

The fence surrounding parcel one opens onto the back portion of 2850 Junction Avenue, referred

to as parcel two. Parcel two is a long, narrow, 9.79-acre strip of graveled land adjacent to parcel

one, running along an existing railroad line from Junction Avenue to Michigan Avenue. Parcel

one is owned by Panacea and parcel two is owned by Elixir. At the time of the taking, Comerica

held a mortgage on parcels one and two in the names of Panacea, Elixir and Titan. Defendants

are in the business of open air trailer, truck, and shipping container storage.

Historically, defendants leased the property to two main tenants: Transport International

Pool (TIP) and Hovarth Towers. TIP began leasing portions of both parcels for storage and

transfer of trucks and containerized cargo in 2002. In 2008, Hovarth began leasing an area in the

southeast corner of parcel two for the operation of a cellular phone tower. In early 2010, TIP

terminated its lease and vacated the property. Hovarth was defendants’ only tenant by the time

of the taking.

On July 22, 2011, plaintiff filed a condemnation complaint to acquire 2.89 acres from

parcels one and two. The area identified for condemnation included Hovarth’s cellular tower.

Plaintiff intended to use the property for “the improvements of the Conrail Railroad and C.N.

Railroad near Junction Avenue in and through the City of Detroit . . . as part of the West Detroit

Connector Project.” None of the private parties disputed the necessity of the taking.

Accordingly, on October 6, 2011, the trial court entered an order vesting title to the property in

plaintiff’s name as of July 22, 2011.

Following the taking, plaintiff moved Hovarth’s cellular tower to the remainder of parcel

two. The fence and security camera were stolen from parcel one sometime in 2012. Plaintiff

thereafter reimbursed defendants for a new security camera and the construction of a new fence

around the posttaking boundary line.

2

Panacea, Elixir and Titan were the only defendants to move for exclusion of plaintiff’s

appraisal, participate in trial, and move for a directed verdict. Accordingly, the term

“defendants” as used hereinafter refers exclusively to Panacea, Elixir and Titan.

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B. MOTIONS IN LIMINE REGARDING EXPERT APPRAISALS

Plaintiff set aside $375,000 as just compensation for the 2.89 acres taken, but defendants

believed their property was worth more. They retained Mark Sheppell to perform an appraisal.

Based in part on TIP’s prior tenancy, Sheppell identified the highest and best use for parcels one

and two as “a use related to freight storage and transportation.” Sheppell also believed the

property could be used for truck driver training and instruction. U.S. Truck Driving Training

School was set to lease 10 acres of defendants’ remaining property to operate a truck driving

school beginning on November 1, 2011, but the deal ultimately fell through. According to

Sheppell, the amount of just compensation owed to defendants was $835,000.

In his deposition, Sheppell explained that although TIP was no longer a tenant and U.S.

Truck Driving Training School had never leased the property, he expected demand for

defendants’ property to increase as the economy improved and other development projects in and

around Detroit moved forward:

Q. Okay. What was the condition of the market on that date?

* * *

A. I would say that, in general, the industrial market suffered just like

most of the markets did. In 2008, for industrial buildings, it’s my impression that

the market was affected more for vacant land. . . . But that, like in any situation,

where there’s an economic downturn or when things are good, nothing lasts

forever, and that there would be a reasonable anticipation that the market would

rebound, based on things that are happening in downtown Detroit with the new

bridge, the existing bridge, the international crossings that are there. I guess, the

traffic patterns for the [Detroit International Bridge Crossing], and the anticipated

traffic patterns for the new bridge.

So it was a period in which the market had suffered a downturn, but it

was, in my impression, stable at that point and improving.

* * *

Q. And you were anticipating that this demand would occur sometime in

the future?

A. Yes.

Q. In the near future?

A. Yes.

On August 9, 2013, plaintiff filed a motion in limine to exclude Sheppell’s appraisal

report and opinion concerning the value of the property. Plaintiff argued that Sheppell’s

evaluation was improperly based on TIP’s prior tenancy and posttaking events, such as the

possibility that a future buyer may use the property for trucking storage, a lease of the property

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by Chassis Pros, LLC, which began between May and June 2013, and “a new international

bridge between Detroit and Windsor and a possible future Detroit Intermodal Freight Terminal

Project.”

Plaintiff’s expert, Michael Ellis, produced a competing appraisal report. Ellis estimated

that the just compensation owed to defendants was $190,000. He believed that the highest and

best use for the property was “a speculative land holding for potential open yard storage

purposes.” Ellis explained the term “speculative land holding” in his deposition:

A. What that means is based on my investigation and research, which

includes discussions with brokers . . . there’s little to no demand for industrial

land, including pieces similar to the subject. They’re marketed for years. They

remain on the market without receiving offers. So someone acquiring it, unless

they’re going to use—try to come up with something or they have a need for it,

they’d be acquiring it speculatively, hoping that they could find something they

could use it for. There’s not a lot of demand.

On August 16, 2013, defendants filed a motion to exclude Ellis’s appraisal and testimony

at trial. Defendants argued that Ellis failed to comply with M Civ JI 90.09, because he

determined the highest and best possible use to be “speculative” and stated that there was no

market demand for the property. Further, defendants reasoned that if Ellis believed that there

was no demand for the property as of the date of the taking, and the highest and best use was

speculative land holding, Ellis’s valuation was necessarily based on a future posttaking date,

contrary to M Civ JI 90.13 and MCL 213.70.

After a hearing on both motions, the trial court denied plaintiff’s motion to exclude

Sheppell’s appraisal, but granted defendants’ motion to exclude Ellis’s appraisal. The trial court

found that Ellis’s appraisal failed to identify a highest and best use for which there was market

demand and that it valued the property at some “future speculative date,” rather than at the time

of the taking. It therefore ruled that Ellis’s appraisal was contrary to “the legal requirements for

determining highest and best use, market value and just compensation.”

C. TRIAL ON JUST COMPENSATION

On October 21, 2013, the parties participated in a jury trial to determine an amount of just

compensation. As the only expert available, plaintiff called Sheppell as an adverse witness to

testify regarding his valuation of the property. Sheppell stated that defendants were due

$835,000 in just compensation for the property that was taken. A listing of the five comparison

properties used by Sheppell with their respective prices per square foot was admitted into

evidence. Sheppell admitted that none of the comparison properties had been used for

containerized truck storage and two of them were vacant on the date of the valuation.

Defendants’ property itself had not been used for containerized truck storage since 2010.

Further, Sheppell agreed that, in his deposition, he relied upon the 2013 lease with Chassis Pros,

LLC as evidence that containerized truck storage was the highest and best use for the property.

The construction of a new bridge to Canada and the Detroit Intermodal Freight Terminal (DIFT)

also led Sheppell to believe that demand for defendants’ business would increase.

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Plaintiff then called MDOT engineer Terry Stepanski. Stepanski was the manager of the

DIFT project. The DIFT project was intended to expand the Livernois Avenue and Junction

Avenue yard and increase “intermodal capacity, the movement from freight to containers to

truck, the movement of these containers from trucks to rail and vice versa.” As of July 22, 2011,

the chances of the project going forward were “very slim,” because MDOT had not yet secured a

binding agreement between the interested railroads to fund the project. Stepanski acknowledged,

however, that MDOT had published a May 14, 2010 press release stating “the railroads have

agreed to pay a large share of the costs.”

After Stepanski’s testimony, plaintiff rested. Counsel for defendants then moved for a

directed verdict in the amount of $835,000, arguing that Sheppell’s valuation was the only

estimate in evidence and must therefore be accepted. Defendants’ counsel also cited City of

Detroit v Halicki, unpublished opinion per curiam of the Court of Appeals, issued April 25, 1985

(Docket No. 67426), in which this Court stated that the trial court should have granted a directed

verdict in favor of the defendant because the plaintiff city had failed to present a competing just

compensation estimate at trial. Finding Halicki persuasive, the trial court granted defendant’s

motion and entered a judgment awarding defendants $835,000 in just compensation. This appeal

followed.

II. ANALYSIS

A. EXCLUSION OF ELLIS’S APPRAISAL

Plaintiff argues that the trial court erred in excluding Ellis’s appraisal. This Court

reviews a trial court’s decision to admit or exclude expert testimony for an abuse of discretion.

Lenawee Co v Wagley, 301 Mich App 134, 161; 836 NW2d 193 (2013). However, as plaintiff

argues, “preliminary issues of law underlying an evidentiary ruling are reviewed de novo.”

Dep’t of Transportation v Haggerty Corridor Partners Ltd Partnership, 473 Mich 124, 134; 700

NW2d 380 (2005). De novo review is applicable because the trial court found that Ellis’s

appraisal “clearly violated the legal requirements for determining highest and best use, market

value and just compensation.” If the trial court admits or excludes evidence based on a

misinterpretation of law, “it necessarily abuses its discretion.” Gay v Select Specialty Hosp, 295

Mich App 284, 292; 813 NW2d 354 (2012).

The state and federal constitutions prohibit the taking of private property for public use

without just compensation. US Const, Am V; Const 1963, art 10, § 2. “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.” Detroit/Wayne County Stadium Auth v Drinkwater, Taylor, & Merrill, Inc, 267

Mich App 625, 632; 705 NW2d 549 (2005). There is no formula or specific measure of just

compensation damages; instead, the determination depends upon consideration of all of the

relevant facts in the case. Detroit v Detroit Plaza Ltd Partnership, 273 Mich App 260, 268; 730

NW2d 523 (2006). For this reason, the amount of just compensation should take into account all

factors relevant to the fair market value of the property. Silver Creek Drain Dist v Extrusions

Div, Inc, 468 Mich 367, 373-374, 378-379; 663 NW2d 436 (2003). Fair market value is priced

as of the date of the taking. MCL 213.70(3). Any evidence that would tend to affect the

property’s valuation as of that date is relevant and evidence should be liberally received.

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Transportation Dep’t v VanElslander, 460 Mich 127, 130; 594 NW2d 841 (1999); Stadium

Authority, 267 Mich App at 647. However, the value of the property at some future date is

speculative and irrelevant. Haggerty, 473 Mich at 136-137.

Damages in a partial taking may include both the property taken and severance damages

to the remaining property. VanElslander, 460 Mich at 130. The parties may present evidence of

the cost to cure to prove severance damages. Id.

Fair market value is determined by considering the highest and best use for the property.

Stadium Authority, 267 Mich App at 633. “ ‘Highest and best use’ means ‘the most profitable

and advantageous use 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.’ ” Id., quoting M Civ JI

90.09. A highest and best use should be legally permissible, financially feasible, maximally

productive, and physically possible. Detroit Plaza, 273 Mich App at 285.

Defendants argue that the trial court properly excluded Ellis’s appraisal based on its

authority under MRE 702. The rule states:

If the court determines that scientific, technical, or other specialized knowledge

will assist the trier of fact to understand the evidence or to determine a fact in

issue, a witness qualified as an expert by knowledge, skill, experience, training, or

education may testify thereto in the form of an opinion or otherwise if (1) the

testimony is based on sufficient facts or data, (2) the testimony is the product of

reliable principles and methods, and (3) the witness has applied the principles and

methods reliably to the facts of the case. [MRE 702.]

Expert testimony may be excluded when based on assumptions that do not comport with the

established facts. Badalamenti v William Beaumont Hosp-Troy, 237 Mich App 278, 286; 602

NW2d 854 (1999). If the expert’s testimony does not comport with applicable legal standards, it

is irrelevant and inadmissible because it will not assist the trier of fact in understanding the

evidence or determining a fact in issue. See Daubert v Merrell Dow Pharm, Inc, 509 US 579,

597; 113 S Ct 2786; 125 L Ed 2d 469 (1993) (reflecting that the similarly worded FRE 702

“assign[s] to the trial judge the task of ensuring that an expert’s testimony both rests on reliable

foundation and is relevant to the task at hand.”). See also MRE 402 (“Evidence which is not

relevant is not admissible.”).

The trial court found that Ellis’s appraisal “clearly violated” the requirements of just

compensation and fair market value because Ellis’s highest and best use of “speculative land

holding” was not a “proper” highest and best use. Specifically, the trial court agreed with

defendants that: (1) Ellis’s use of the word “speculative” demonstrated that he valued the

property on an unknown future date; and (2) Ellis stated there was “no demand” for the property,

even though highest and best use requires the existence of some market demand. We disagree.

Ellis did not use the term “speculative” to convey that that his appraisal was set at a

future date. Rather, Ellis contemplated that as of July 22, 2011, a prospective buyer would most

likely purchase the property and hold it until finding a functional purpose for it later, including a

possible use for open air storage. It was the latter, postholding use that Ellis described as

speculative: “So someone acquiring it, unless they’re going to use—try to come up with

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something or they have a need for it, they’d be acquiring it speculatively, hoping that they could

find something they could use it for.” When asked whether his valuation was based on a future

date, Ellis explained, “No, my estimate of value reflects what someone would be willing to pay

as of that date[,]” meaning the date of the taking. Defendants did not argue, and the trial court

did not find, that holding the property upon purchase cannot itself be a highest and best use.

Highest and best use “requires only that the use on which the valuation is made be legally

permissible, financially feasible, maximally productive, and physically possible.” Detroit Plaza,

273 Mich App at 285. “The possibility of [the property’s] use for all purposes, present and

prospective, for which it is adapted and to which it might in reason be applied, must be

considered . . . .” Stadium Authority, 267 Mich App at 643 (citation and quotation omitted). If

the evidence demonstrates that market participants were purchasing land and holding it for

potential later use, there is no reason that such “speculative land holding” cannot constitute a

highest and best use. As revealed at trial, two of the properties Sheppell cited as comparables

were held vacant upon purchase and were not put to a more productive use until a later time after

the date of valuation. The trial court erred in excluding Ellis’s appraisal on the basis that

speculative land holding was not a “proper” highest and best use.

Ellis’s admission that there was “no demand” for the property similarly does not render

his opinion inadmissible. Highest and best use requires the existence of some underlying market

demand. Stadium Authority, 267 Mich App at 633. Although Ellis stated that there was “no

demand” for defendants’ property, his appraisal attributed the lack of market demand to an

absence of buyers looking to purchase land for active industrial development, not to an absence

of buyers looking to purchase land as a speculative land holding:

In recent years there has been no demand to acquire land for new industrial

development in the vicinity of the appraised property. While it may be remotely

possible that some industrial users might be able to justify new construction cost

within the Clark Street Technology Park, it is speculative that this would have

been the subject’s location. As a result of the market conditions existing as of the

respective date of valuation, the highest and best use of the subject ‘as vacant’ is

as a speculative land holding for potential open yard storage purposes.

[(Emphasis added).]

Ellis’s appraisal also identified 11 market transactions and narrowed those down to five

comparable sales, thereby showing at least some level of market demand for his identified

highest and best use. Further, Ellis explained in his deposition that he identified “speculative

land holding” as a highest and best use because of the lack of demand for other uses:

The brokers that I talk to strongly emphasize that in my conversations,

how little demand there is. You ask them, well, how long do you think it will take

to sell, and they throw up their arms. You can hear it in their voice over the

phone. Or if you were to talk to them, you know, they may throw up their arms

physically. But you understand what I’m saying by throwing up their arms. They

don’t know. They put it on the market. They market it. They make their best

effort. They’ve got signs on it. Signs are still active and they’re looking old

because they can’t sell it. There is no demand. And that’s why my highest and

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best use is identified what it is, is to reflect that type of market condition.

[(Emphasis added).]

The trial court erred in ruling that Ellis “conclud[ed] a highest and best value for which [Ellis]

himself admits there is no demand.” Although it is a fine distinction, Ellis did not state that there

was “no demand” to use the property for speculative land holding; he opined that speculative

land holding was the highest and best use for the property because there was “no demand” to use

the property for some other identifiable purpose. The trial court erred in ruling that Ellis’s

highest and best use was improper and that it lacked market demand. It therefore abused its

discretion in excluding Ellis’s appraisal and testimony.

The trial court’s exclusion of Ellis’s appraisal warrants reversal. As explained, the trial

court granted defendants’ motion for a directed verdict because it found that Sheppell’s appraisal

was undisputed, and thus, plaintiff was prejudiced by the absence of Ellis’s opinions. Craig v

Oakwood Hosp, 471 Mich 67, 76; 684 NW2d 296 (2004) (describing the standard for reversal

based on an evidentiary error). We remand for a new trial at which Ellis’s appraisal and

testimony may be admitted.

B. ADMISSION OF SHEPPELL’S APPRAISAL

Plaintiff claims that the trial court erred in failing to exclude Sheppell’s testimony.

Specifically, plaintiff argues that Sheppell improperly based his valuation of the property on a

use for which no market demand existed at the time of the taking. Plaintiff first criticizes

Sheppell’s reliance on TIP’s prior use of the property as proof that truck and container storage

was the property’s highest and best use because TIP was not a tenant at the time of the taking.

Highest and best use requires a market demand for that use and, since the property had no tenants

for truck and container storage on July 22, 2011, plaintiff reasons that Sheppell’s highest and

best use necessarily lacked the requisite market demand. We disagree.

As explained, fair market value is determined as of the date of the taking, and one must

determine a property’s highest and best use to reach a fair market value. Haggerty, 473 Mich at

135, citing MCL 213.70(3); Stadium Authority, 267 Mich App at 633. But highest and best use

is not fixed based on the use of the property as of the date of the taking. Highest and best use

refers to the most profitable use that could be made of the property, even if, at the time of

condemnation, “the property is presently used for a different purpose or is vacant.” Stadium

Authority, 267 Mich App at 633 (citation and quotation omitted). Plaintiff correctly asserts that

highest and best use must be supported by market demand, but as the definition of highest and

best use implies, the property’s “present” use on the date of the taking does not exclude the

possibility of market demand for other uses. For instance, the properties at issue in Stadium

Authority were separately owned and used for different purposes by multiple defendants at the

time of the respective takings. Id. at 629-630. Yet this Court affirmed that the jury could

consider whether the highest and best use of the properties was assemblage for casino

development, so long as it found that private assemblage for such development was “reasonably

probable within a reasonable time and for a reasonable price[.]” Id. at 635-639. Thus, the fact

that TIP was not a current tenant at the time of the taking does not render Sheppell’s highest and

best use opinion inadmissible. Further, plaintiff offers no authority to suggest that a property’s

use by a prior tenant is irrelevant to the question of market demand for highest and best use.

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“Normally, existing use may be indicative of the use to which a potential buyer would put the

property and is, therefore, relevant to the fair market value of the property.” Safran Printing Co

v Detroit, 88 Mich App 376, 382; 276 NW2d 602 (1979). The trial court did not abuse its

discretion in declining to exclude Sheppell’s appraisal on this basis.

Plaintiff next contends that Sheppell’s appraisal should have been excluded because his

highest and best use was based on posttaking events, such as the 2013 lease by Chassis Pro, LLC

and a potential future increase in demand for truck and container storage. In support of its

argument, plaintiff relies on Haggerty, 473 Mich at 136, wherein our Supreme Court determined

that the trial court abused its discretion in admitting evidence that the property was rezoned after

the taking:

. . . [B]ecause just compensation must be calculated on the basis of the

market value of a property on the date of the taking, the relevance of any such

evidence is wholly dependent on whether, and how, the particular factor at issue

would have affected the market participants on that date.

* * *

. . . In short, a posttaking zoning change is irrelevant to the just

compensation calculation because it does not make the fact of consequence—that

information regarding the reasonable possibility of a zoning change may have

impacted the market value of property on the date of the taking—more probable

or less probable. [Id. at 136, 140-141.]

Following Haggerty, this Court held in Stadium Authority that posttaking sales of comparable

property could be used to impeach witnesses and confirm an expert’s valuation as of the date of

the taking. Stadium Authority, 267 Mich App at 646 n 13, 648-650. See also Detroit Plaza, 273

Mich App at 282-283 (finding no error in the trial court’s admission of evidence of comparable

sales after the date of valuation). Defendants argued before the trial court that the posttaking

events cited by Sheppell were admissible under Stadium Authority and Detroit Plaza. When

Ellis’s appraisal and testimony are admitted on remand, the 2013 tenancy may be used for

impeachment purposes or to confirm Sheppell’s opinion regarding the highest and best use.

Stadium Authority, 267 Mich App at 646 n 13, 648-650; see also Detroit Plaza, 273 Mich App at

282-283.

Plaintiff also complains that Sheppell’s belief in a future increase in market demand was

improper posttaking evidence. Plaintiff is incorrect. Haggerty precludes evidence of events that

occurred after the date of the valuation because those events are irrelevant to the property’s value

as of that date. Haggerty, 473 Mich at 140-141. Haggerty does not, however, preclude that

evidence showing the probability of the occurrence of a posttaking event, inasmuch as the

probability of that event affects the value of the property at the time of the taking:

We stress again that it is not the probability of a zoning change that is irrelevant

to the just-compensation determination. Indeed, we adhere to the rule . . . that

evidence of the reasonable possibility of a zoning change is admissible to the

extent that it aids in determining the fair market value of the property at the time

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of the taking. Rather, it is merely the fact of the posttaking zoning change that is

irrelevant, as it is of no import in determining the price which a willing buyer

would have offered for the property just prior to the taking. [Id. at 143 n 38

(citations and quotations omitted).]

Here, Sheppell’s testimony speaks to the probability of posttaking events that may affect the

property’s value on the date of valuation. Sheppell cited the DIFT project and the public

discussion of a new international bridge connecting Detroit and Windsor as the reasons he

believed market demand for truck and containerized cargo storage would increase. Information

concerning these projects was public and was knowable to a hypothetical market participant

prior to the taking. Evidence concerning the probability of these events can therefore be

considered “to the extent that [they] aid[] the fact-finder in determining the price which a willing

buyer would have offered for the property just prior to the taking.” Haggerty, 473 Mich at 138

(quotations and citation omitted). The trial court did not abuse its discretion in declining to

exclude Sheppell’s testimony on this basis.

C. DIRECTED VERDICT

Plaintiff also contends that the trial court erred in granting defendants’ motion for a

directed verdict. A trial court’s decision on a motion for a directed verdict is reviewed de novo.

Krohn v Home-Owners Ins Co, 490 Mich 145, 155; 802 NW2d 281 (2011). This Court reviews

the evidence and all legitimate inferences in the light most favorable to the nonmovant.

Sniecinski v Blue Cross & Blue Shield of Mich, 469 Mich 124, 131; 666 NW2d 186 (2003). “A

directed verdict is appropriate only when no material factual questions exist on which reasonable

minds could differ.” Merkur Steel Supply Inc, v City of Detroit, 261 Mich App 116, 123; 680

NW2d 485 (2004). Given our conclusion that the trial court erred by excluding Ellis’s testimony

and report, we need not consider this issue, as Ellis’s testimony and report would have presented

facts upon which reasonable minds could differ. Moreover, as discussed below, we find that the

trial court’s decision to grant a directed verdict in this case was in error.

In granting defendants’ motion, the trial court relied heavily on Halicki, unpub op at 3-4.

In Halicki, the original appraiser that the plaintiff (the city of Detroit) intended to present as a

witness failed to appear for trial. Id. at 1-2. The city instead presented William Thompson,

Chief Coordinator of Acquisitions for Community and Economic Development in Detroit, to

testify concerning the value of the property. Id. at 2. This Court held that the trial court’s

admission of Thompson’s testimony was improper because he had no personal knowledge of the

property at issue. Id. at 2-3. The Court then concluded that “[s]ince the [c]ity did not present

any competent evidence of value, and the only other evidence” of the property’s value was the

testimony of the defendant’s expert, “the trial court should have directed the verdict” in favor of

the defendant in the amount identified by his expert. Id. at 4.

As an unpublished opinion, Halicki is not binding. See MCR 7.215(C)(1). Moreover, it

is not analogous. In Halicki, unpub op at 4, the testimony of the defendant’s expert was the

“only other evidence on value” of the property. In this case, Sheppell’s testimony was not the

“only evidence on value.” Sheppell’s list of five comparable properties was also in evidence,

and four of those properties had prices per square foot below the number relied upon by Sheppell

in calculating his $835,000 estimate. In its opening statement, plaintiff suggested that the jury

rely on the evidence of “actual listings” and “dollar [per] square[]foot” prices in reaching its

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conclusion. Although the jury could have accepted Sheppell’s estimate without considering the

comparable prices per square foot, the nonmovant on a motion for a directed verdict has the right

to ask the jury to believe the case as he presented it, even if that case appears improbable.

Caldwell v Fox, 394 Mich 401, 407; 231 NW2d 46 (1975) (citation omitted). Plaintiff also

elicited admissions from Sheppell at trial that brought his estimate into question. Sheppell

acknowledged that none of the comparable properties had been used for container or truck

storage, and that two of the comparables, as well as the subject property itself, were vacant at the

time of the taking. Sheppell at first stated that the cost of the fence and security camera were

included in his estimate, while acknowledging that plaintiff had already paid for these repairs,

but later claimed these costs were not included when questioned by defendants’ counsel. He also

admitted that the $835,000 figure included the cost of improvements that were not included in

the taking, such as the modular office. In addition, Stepanski testified that funding for the DIFT

project was not in place at the time of the taking, implying that Sheppell’s assumption that

defendants’ business would increase was incorrect. Ultimately, it is for the jury to weigh the

evidence and determine the credibility of witnesses, including experts. King v Reed, 278 Mich

App 504, 523 n 5; 751 NW2d 525 (2008). Given that there was conflicting evidence, the trial

court should have submitted this matter to the jury. The trial court erred in granting defendants a

directed verdict.

Vacated and remanded for a new trial consistent with this opinion. We do not retain

jurisdiction.

/s/ Jane M. Beckering

/s/ Mark J. Cavanagh

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