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HomeMy WebLinkAboutLeeper ElectricHANCOCK CIRCUIT COURT 9 EAST MAIN STREET 3RD FLOOR, COURTHOUSE GREENFIELD, IN 46140 HONIG, DAVID SUITE 2000, BOX 82064 INDIANAPOLIS, IN 46282 C~E NO. 30C01-970~-CP-00076 LEEPEH ELECTRIC SERVICES iNC VS CITY OF CARMEL, ETAL NOTICE. FILE DATE 04/21/03 PLEASE TAKE NOTICE OF THE FOLLOWING ACTION OF THE COURT: AMENDED COURT'S FINDINGS OF FACT, CONCLUSIONS OF LAW AND ENTRY AS TO PLAINTIFF'S MOTION TO CORRECT ERRORS AND PLAINTIFF'S MOTION TO CORRECT JUDGMENT ENTRY ENTERED. AC RICHARD D. CULVER HANCOCK CIRCUIT COURT CC: TOSICK, MICHAEL J. POSNES, MERV CARTER, STEVE MCNAMAR, DAVID FRED S;~N'DERS, WILLIAM MIEDEMA, LAWRENCE R. MOLITOR, JOHN RAYMOWD ELLIS, FRED STEVENSON, HOWARD L. STATE OF INDIANA ) ) SS: COUNTY OF HANCOCK ) IN THE HANCOCK CIRCUIT COURT CAUSE NUMBER: 30C01-9703-CP-76 LEEPER ELECTRIC SERVICES, CO. INC. Plaintiff, ; v. CITY' OF CARMEE; '~t"~l.'" Defendants. AMENDED COURT'S FINDINGs OF FACT,' CONCLUSIONS OF LAW and ENTRY AS TO PLAINTIFF'S MOTION TO CORRECT ERRORS and PLAINTIFF'S MOTION TO CORRECT JUDGMENT ENTRY The Plaintiff filed i~s Motion to Correct Errors stating that the verdict of. the' Jury was inadequate and not within the "bounds of the evidence;" that the COurt erred in granting the Defendants' Motion for a Judgment on the Evidence at the close of Plaintiff's case-in-chief; that the Court erred in denying Plaintiff the oppormr~ty to have the Jury decide !f the Defendants violated the Constitutional rights of the Plaintiff in their denying it any use of its property and taking Of Plaintiff's property without just compensation; that the Court erred in denying Plaintiff the right to amend its complaint to conform to the evidence presented during the trial; that the Court erred in failing to fred that the moratoriums imposed by the Defendants upon Plaintiff's usage of its land were contrary to law in that there is no authority for such moratoriums to be imposed; and that the Court e[rcd._i.n n0t.a!!ow~ng cross examination of the City of Carmel's appraiser that he was hired. by the Defendants. The Court having heard the evidence submit~cd du~'mg thc trial, hay!rig. considered 'the Motion, the Defendants' response, the Plaintiff's reply, and the oral argument, now finds that the Motion to Correct Errors should be GRANTED, in part, and DENIED in part. The Court now finds the following: 1. The Jury verdict was not within the "bounds of the evidence" presented in Court. The evidence in the record established the following: a. Plaintiff is the owner of the land located on the north east comer of 131~ Street and U.S. 31 in the City of Carmel, Hamilton County, Indiana. b. Plaintiff attempted to rezone its property from S-2 (a residential classification) to B-2 (a business classification) to accommodate an Indiana Lighting Center at that location. The evidence also established that this property was within the U.S,31 corridor as defined in the Defendants' overall zoning plan and as such was to be used for business purposes rather than residential purposes. c. The Defendants refused the rezonLng and ultimately refused to allow the Plaintiff any use of its property, including placing a hotel thereon, because they were trying to influence the State to purchase it and use it for a future interchange if U.S. 31 were to become an interstate highway. d. The evidence from four expert real estate appraisers established that the highest and best use of the property was for commercial purposes and that could include the use for a hotel. e. ;i'he' Piain/iw~ rePresentative testified that the Plaintiff was to deve!op this property as a hotel and that use was acceptable Without the need for any rezoning. The Defendants had even granted a height variance to build the hotel, but then placed a moratorium on the Plaintiff's property, denying any' use at all of the real estate. · f. The appraisers testified in their expert opinions the fair market value Of Plaintiff's real estate as of November 2, 2000 (the .date of take established by the Court) ranged' between $1,120,000.00 and $1,400,000.00. The Plaintiff's chief executive officer testified in his opinion the fair market value on the date of take was $1,700,000.00. g. There was no evidence presented by any witness that the fair market value of this property on the date of take was any amount less than $1,120,000.00. h. The Jury's verdict was $675,000.00. There was no evidence in the record to support that number. Therefore the amount of the Jury's verdict was not within the "bounds Of the evidence." 2. The Plaintiff had evidence that Michael Lady was hired by the City of Carmel to appraise this property for the Defendants. The Defendants objected to any. evidence as to who hired Mr. Lady and the Cour~ sustained the Defendants' objections. The Defendants failed to present any authority that stich evidence ~hould be excluded. The Plaintiff, on the other · hand~ submitted numerous authorities stating that:such evidence is proper, and a.court should not exclude factors as' to who hired the witness and how much he was paid. The Cou~t now also enters the following Conclusions of Law: 1. The Court may reverse a jury's award if it considered an improper element. Precision Screen Machines, Inc. v. Hixson, 711 N.E.2d 176, 177 (Ind. Ct. App. 1994). 2, The jury verdict must be "within the bounds of the evidence" or the Court will set it aside. 3. The jury verdict must also be based upon competent evidence in the record. The Court concludes that there are three accepted methods of evaluation of real estate in Indiana. These 2 three methods are (1) ~e cost approach, (2) the income approach, and (3) the market value approach. Ohio Casualty Insurance Co. v. Ramsey, 439 N.E.2d 1162, 1167 (Ind.Ct. App. 1982). The mere inflation of the purchase price is inot an accepted method to establish fair market value. 4. It was also error not to allow cross examination of Michael Lady as to who hired him to appraise the property. Simon v. Clark, 660 N.E.2d 634 (Ind. Ct. App. 1996); Miller, Ind. Evident, §616.103. · 5. Pursuant to I.C. 32-24-1-11 Plaintiff is entitled to pre-judgment interest at the rate of 8% per annum from November 2, 2002. .6. Pursuant to I.C. 32-24-1-14 Plaintiffis entitled to litigatio{~ expenses in the sum of Two .Thousand Five Hundred Dollars ($2,500.00). . ITtS THEREFORE-ORDERED, ADJUDGED'AND DECREED that the Phinti~'s Motion to C.0rrect Errors with respect to. the.aliegatioq.of the jury award not being within the boi~ds of the evidence is GRANTED. IT IS FURTHER ORDERED, ADJI~DGED AND DECREED,that the jury's award of damages iS inadequate. Pursuant to Rule 59(.0(5) the Court enters Judgment on behalf of the Plaintiff a~d against the City of Carmel in the sum of Qne Million Three Hundred Forty-three Thousand Four Hundred Thirty-two Dollars ($1,343,432,00)1 This sum includes a judgment of One Million One Hundred Twenty Thousand Dollars ($1,120,0(~0.00) plus pre-judgment interest and litigation expenses. IT IS FURTHER ORDERED; ADJUDGED AND DECREED that the Court's error ia failing to allow Plaintiff to cross-examine Micl~ael__ Lady on the topic of the payment of his fees is rendered harmless by reason of the Court's entry of judgment. IT IS FURTHER ORDERED, ADJ~GED AND DIgCREI~D that all other allegations'in the Plaintiff's Motion to Correct Errors be, and ihl- same hereby are, DENIED. SO oRDERED thi~ 21st day of April, Ricl{ar~l D. Culver, Judge "Hanc0~k Circuit Court Copies to: David F. MeNaniar MCNAMAR & ASSOCIATES 111 Monument Circle, Suite 3350 P.O. Box 1883 Indianapolis. In. 46206-1883 Telephone: 317 632-3350 Michael I. Tosick' Three Court House Plaza P.O. Box 6 Greenfield, In. 46104 Telephone: 317 462-3445 David Honig Hall, Render, Killian, Heath & Lyman, P.S.C. One American Square, Suite 2000, Box 82064 Indianapolis, In. 46282 John R. Molitor 11711 N. Meridian St. Suite 200 Carmel, In. 46032 Douglas C. Haney City of Carmel One Civic Square Carmel, In. 46032 Lawrence R. Miedema Deputy Attorney General IGCS 5~ Floor 402 W. Washington Street Indianapolis, In. 46204 4 VOR PUBLICATION ATTORNEYS FOR APPELLANT: ATTORNEY FOR APPELLEE: ANGELA M. SMITH DAVID MeNAMAR DAVID B. HONIG McNamar & Associates HallRender Killian Indianapolis, Indiana Heath & Lyman,.P.S.C. Indianapolis, Indiana· IN TIlE COURT OF APPEALS OF INDIANA CITY OF CARMEL, Appe~lant-Defend~h~, NO; 30A01-0304-cv-i58 APPEAL FROM THE HANCOCK CIRCUIT COURT The Honorable Richard D. Culver, Judge Cause No. 30C01-9703~CP-00076 March 18, 2004 OPINION - FOR pUBLICATiON KiRSCH~ Chief judg~ ' The'Ci{y 0fcatmel appeals th~ trial court's'decision to gl'ant Leeper Electric Serviges, Inc.'s (Leeper ElectriC)' Motion to CorreCt Errors and Motion to Correct Judgment Entry. The City 0f carmel raises one issue 6n app'eal, Wkicl5 xve restate as follows: whether the trial court abused i{s discretion when it g/anted Lecpef Electric's Motion to COrrect Errors pursuant to Indiana Thai Rule 59(J)(5) and awarded $1,12'0;000.in dSzha~es after finding that the jury's award of $675,000 in damages was not within the b0unds:ofthe evidence. {eefoOmote 'W~.affim, S~foothote ".hfflS!//W~w.ai.org/jd~i¢io, ry/opinions/~omplet~d/03180408.j sk.html 3/i8/2004 FACTS AND PROCEDURAL HISTORY On November 3, 2000, Leeper Eleciric filed its Amended Complaint against the City of Carmel and · .other defendants not parties to this appeal. In pertinent part, Leeper Electric alleged that an approximately four-ac~e parcel of real estate located on the northeast comer of 131st Street and U.S. 31 in Carmel, Hzfmilton County, Indiana was rendered valueless as a result of the City of Carmel's implementation of a domprehenSive development plan and denial of Leepe~ Electric's application for rezoning of the property. Leeper Electric further alleged that the City of Carmel's actions effectively deprived it of any legitimate.uSe of the subject real estate and, thus, 'constituted a "taking" by the. City of Canne! without just compensation in violation of the United States and Indiana constitutions: On May 16, 2001, the trial court determined that the matter effected a "taking" ofL6eper Electric's real estate and .ordered the matter to proceed as an inverse condemnation and eminent domain action. Thereafter, the trial court appointed three appraisers to evaluate Leeper Electric's real estate in order to 'determine the fair market value of the property as of November 3, 2000, the date of the taking. In NoVember of2002~ a jury trial was held. Evidence was introduced that Leep~r i~lectric purchased ~e real estate in 1996 for $100,000. The property previously had been owned by Earlham College, ~hich had'tried tb sell:the:parcel for several years without success. Leeper Electric offered into evidence the testimony of foui' appraiSerS and the t6stimony of Mr. Robert Leeper; the company's owner, c6fidemihg their op~onS'a~ to the fair market value of the property. The appraisers testified to opinions 6f value.rafiging from.$1 ~120,000'to $1,400,000. Leeper testified that in his opinion the property was worth $t.,.700,000..Dh.November 22, 2002, the jury aWarded damages to.Leeper Electric in the amount of $675;000. On December.l'3; 2002,.LeepVr Electric filed a Motion to Correct Errors:The trial Court. granted:Leeper Electi-ic's motion ih 15art, finding that the jury. aWard'of $675,000 was inadequate and n6t within the 13'o~/nds of thele~ldenc¢~ Thereafter;.the trial court entered judgment for Leeper Electric in the amount of $1~i20~000~ On Ai3ri[2 I; 2003; in response to Leepet Electric's Motion to Chh'eOt Judgment Entry, the .trial eoui;t amei~ded i~s jddgme~t in order' to allow Leeper Electric to fec0ver p~ejudgment interest and litig~ti0n e~penseg in'additiOn to tim $1,120,000 damages award. The City 'of Carmel now appeals. .. .. . '.' ' ' DISCUSSION AND DECISION I; Standard of Review Tt~ei~fial eourt'gra~t~d'L~per Eiectric"s Motion tO Correct Errors and entered final judgmem on th~ evidei-/ffe for the "gmount of proper damages" pursuant to Ind. Trial Rule 59(1-)(5). When considering a i motion to correct error~ and a i'eqUest for entry of final judgment on the evidence, a trial court is governed by T,R. 59(J)(5), wh[ch' provides: The court, if it determines that Di'ejudicial or harmful error has been committed, sfiall take such action as Will cure the error, iffcluding without limitation the following with respect to ail or some of [he parties and ali or some Of the er?ors... '. (5) In the case of excessive or inadequate damages, enter final judgment on the evidence for the amount of proper damages, grant a new trial, or grant a new trial subject to addittir or remittitur. T.R. 59(J)(5). This r~medy is available only where the evidence is insufficient to support the verdict as a matter 6flaw. Precision Screen Mach. v. Hixson, 711 N.E.2d 68, 70 (Ind. Ct. App. 1999). Moreover-, the tria} judge Sits as a "thirteenth j aror" and must determine whether in the minds of reasonable persons a contraty verdict shquld have been reachdd. Neher v. Hobbs, 752 N.E.2d 48, 52 (Ind. Ct. App. 2001) (citifig.Hixson,'7'l 1 N.E'.2d at 70)). The trial judge, as a "thirteenth juror," hears the Case along with the jaty, observes the witnesses for theft credibility, intelligence, and Wisdom, and determines 'whether the verdiLt is against the ;veight of the evidence. Id. Once the trial court has ~ntered final judgment On the evidence for the amount of proper damageg, we http://www.ai.org/jUdiciary/opinions/completed]03180408 j sk.html 3/18/2004 will reverse this decision only for an abuse of discretion. Dughaish ex rel. Dughaish v. Cobb, 729 N.E.2d 159, 167 (Ind. Ct. App. 2000), trans, denied. An abuse of discretion will be found when the trial court's action is against the logic and effect of the facts and circumstances before it and the inferences which may be drawn therefrom. Neher, 752 N.E.2d at 52. An abuse of discretion also results where a trial court's decision is without reason or is based upon impermissible reasons or considerations. Cobb, 729 N.E.2d at 167. In determining whether the trial court properly entered final judgment on the evidence, this court employs the same standard'of review as the trial court. Russell v. Neumann-Steadman, 759 N.E.2d. 234, 237 (Ind. Ct. App. 2001); Carbone v. Schwarte, 629 N.E.2d 1259, 1261 (Ind. Ct. App. 1994). We must on13/ censider the evidence and reasonable inferences favorable to the non-moving party. Russell, 759 N.E.2d at 237. We may not weigl~ conflicting evidence or judge the credibility of wimesses because of the e0nstitutiona! right Under ArtiCle 1, Section 20 of the Indiana Constitution to have a jury perform the 'fadt;fmding functi0r~S. Id.; Ind,. Const. art. 1, § 20. Therefore; it is our d~iy'to affn~ the trial court's final judgment on ~e evidence for the amount of propar damages 'unle'ss it-iS clearly demonstrated by the City of carmel that the trial court abused its discrofi0h.. II. Motion to Correet'Err0rs Th'e. Cit~ of Cai~ei arguei that the trial court abused its disCretivn when'it granted Leeper Electric's . M0'fi6n t0.'C6rr¢ct Eff0rs pursiiant to T.R. 59(J) and awarded $1,120,000 in damages to Leeper Elec'tric. .Specifi~ally, the City: qf C~el contends that the evidence Was sufficient to support the jury's verdict of $675~000. Leeper El~qtfic, however; argues that the trial court correctly entered judgment for the amount Of proper damages, because the jury's award determination was not within the bounds of the evidence. A~jury is i0 be afforded great latitude in making damage award determinations. Hixson, 711 N.E.2d at .70..A Verdict ~ill belupheld il'the aWard falls within the bounds 0fthe evidence. Ritter v. Stanton, ?45 N.E,2d:828, 845.([nd. Ct. App'. 2001), CarbOne, 629 N.E.2d at 1261. The thai court may'only reverse a jury'veidi~t "whenit.is appareht from a review of the evidence that the amount of damages awarded by . .. the jury. is so small 6r so gre'a~ as to clearly indicate that the jury was motivated by prejudice, passion, 'partiality, cOtrupti0n,.o~- thai'it considered an improper element." Dee v. Becket, 636 N.E.2d 176, 177 '.(In~. Ct.. App. 1994).i.' . Moreovei, it is. generally held that upon. review an appellat~ court wili not disturb an award of damages in ah'eYni~nt domaifi proceeding Where the award is within the bounds of{he probative eVidence addaced..at trial,. Hein~ld 484 N.E.2d at 597 City OfElkha~.t v. No-Bi Corp., 421 N.E.2d 43 (Ind. Ct. App.' 1981~). Ih City:of Elkhart, the Court stated that: . On review of su6h afl 'award, the appellate co¢.rt will neiiher reweigh the evidence nor'judge the .credibility of the witnesses; The evidence will be looked at in a light most favvrable to the judgment. M:'at 45. · ' Th~ foregoing roles tend to give great deference to damage awards in eminent domain case~ because Of the fact-finder's &bility to hear the evidence and judge the credibility of witnesses first hand. However, the Indiana Suprem~ Cou~t imposedlimitation upon juries in these cases in Gradison v. State, 260 Ind. 688, 6~5:96, 300 N.E.2d 67, 74-75 (1978), when it determined that in eminent domain cases, the j~ry may'~ot btise its verdict upon its independent knowledge of values. If the testimony of value and dafnages is conflleting, the jury may resort to their own general knowledge of the elements which affect the asges~mem, !n Order to determine the relative weight of conflicting testimony, but their assessment mast be supp6~ed by testimony, or it cannot stand. See City of Elkhart, 421 N.E.2d at In ~ghing fhat the jury'S award ofdamages in the amount of $675,000 was within the bounds of the evidence presented at triai~ the City of Carmel claims that the appraisers' valuations of the Leeper Electric pr0pOrty Were highor than the actnal fair market value because the property was undeveloped, · tthlmproYed; had no access ~0 southbound U.S: 3 l_, and was surrounded by other unimproved property, a "h~tp://wwV¢ .... ai org/jUdiciary/opiniofls/compieted/03180408 jsk h~mJ 3/18/2004 ~age 4 oi ~ church, and a retirement center. However, Leeper Electric maintains that there is no evidence that the fair market value of the Leeper Electric.property, given its highest and best use on the date of the.taking, was $675,000. Rather, Leeper Electhc claims that the evidence shows that the fair market value of this property was no less than $~,120,000, and the jury's verdict was clearly outside the bounds of the evidence. Here, the record before us indicates that fair market value of the Leeper Electric property as of the date of[he taking, i.e., NOvember 3, 2000, was no less than $1,120,000. The appraisers used a comparable sales approach Wherein the selling price of other "comparable" property xvas used to determine the fair market value of the Leeper Electric proPel'ry. Fred Ellis, an appraiser, testified that, in his opinion, the fair market value of the Leeper Electric property based on four comparable sales was $1,400,000. Appi'aiser Mervyn P0sner, using.the same four comparable sales, testified that the Leeper Electric property was ;qalued at $1,300,000. Another appraiser, William Sanders, used three different comparable sales as the basis ofl~s opinion and testified that the Leeper Electric property was worth $1,375,000 as of the date of the taking. A fourth appraiser, Michael Lady, See footnote used six comparable land sales 'to form his oPinion that, as of the date of the taking, the Leepe~ Electric properly was valued at $1,120,'000. Mr. Leeper also testified, and he opined that the property was worth $1,700,000.. According tO [he City of Carmel, ali four appraisers based their valuations of the Leeper Electric properly upon.an exffapolation of in~'ormati0n concerning the sale of other properties which were far superior'tO the Leepe3"Electric property by virtue of their location, access eharaCtefistic~ Zoning, 'physical ch~racteris'ti'c~'and/or impr6Vements. Many of.the sales used by the appraisefg as comparable p'ar~els Were located in established retail or commercial developments. The parcels that the appraisers ¢o~npared:'Svith ~he si~bj~ct property also possessed bi-direCtional access tO U.S. 31. Several of the · parcels of land were~located in existing commercial developments that offei'ed full utilitieS, Off-site ret~nti0flfiaf~d isthe'r 15enefi.ts. Further, the City of Carmel notes that flee of the comparal3le saies were . located oUtside(the City of-C&rmel in areas with thriving retail and business establishments. Three Other pr0pg~ties ~,'ere'10¢at~d in proximity and with good access to U.S. Interstate 465 (I-465). Therefore, the City of:~armel maintains'that the evaluations wei:6' based on the sales of other properties that were superior to the Leeper EIe~tricproCefty and that the jury Properly Weighed the evidence and awarded dan~ages:in the amo~ht of $675;000. The City 'of darineI, c6ntends thfit the jury was entitled to conside'r.the underlying assumptions upon Whi~h'tl~e ~/pi~raisers:based their opinions, and if such assumptions were not true~ t9 "decide what [a] ffeCh if any, ~hat hadi0n the appraisers' opinions." Appellant's Brief at 15. In particular, the City of carmel a/~gUes that"it.Was entirely within the purview of the jury to [eview the comparable sales Used by the appi'aisers called to the stand by Leeper and to consider what effect the superiority of these ~o~nP~able sales, due t6 their'location within an existing retail cenfer or office p~rk, proximity to 1-465' or to 1-69,:bilateral a~cesg to and from U.S. 31, improv.ements, availability of'full utilities, differences in size,, and Other stupefier traits Would have upon their value in comparison to the Leeper Electric property ~'.Appellaht's Brief at 15.' The jury, according to the City of Carmel, was also entitled to conclude that the value of the Leeper Electric proper~y was less than the sales price of the superior properties.considered, comparable by the appraisers. The only evidence ora Value less than $1,120,000 for the property was Leeper Electric's 1996 purchaser price of $100~000. The'price voluntarily paid by a purchaser is admissible as evidence of the property's fair marl~et value,See Marshall v. Bird, 577 N.E.2d 254, 256 (Ind. Ct. App. 1991); State v. Valley Dev. 'Co., Inc., 256 Ind. 2?8,281,268 N.E.2d 73, 76 (1971): However, we cannot say that the price paid.for · the land here, standing alone, is sufficient to estabhsh the fair market value of the property fottr years after the s~il~ and:~tlet ithe. Pr0Pe~ty was rezoned.to a higher use~,,from residential to commercial. The orily evide,nce Usingthe highest arid best use of the property as o[the date of the taking were the appraisers valuation~ of the property as a commericalPousiness jrroperty. ' In Stat~ vl :Raymond'E. Heinold Family Trust; 484 N.E.2d 595,/598 (Ind. Ct. App. '1985), this court found that.it was prope~r for the appraiser to determine the val~fe of the trust property before the taking .by applyirig the high~st and best use of property criteria. Mo~over, in Lucre Corp. v. County of Gibson, ' http://gmrwlai'6i'~JaCli¢iarY~opini°ns/compieted/03180408.j sk.~ ' ' 3/18/2004 657 N.E.2d 150, 156 ~Ind. Ct. App. 1995), we stated that "an award of damages in an eminent domain proceeding will not he disturbed where the award is within the bounds of the probative evidence adduced at trial." In Lucre, the record revealed that the experts valued the property from $130,000 to $6,300,000; the jury determined Lucre's damages to be $130,500. Id. Because the award was within the bounds of the pt'obat!v~ evidence, this court found no error. Id. The City of Carmel argues that the jury's verdict was within the bounds of the evidence and, therefore, the trial court abused its discretion by applying T.R. 59(J)(5). Because the property value could be properly adjusted for the passage of time by increasing its value by five percent (5%) per annum, to determine its value in 2000 by taking the purchase price of $100,000 in 1996, and then adding to that figure a 5% inflation factor per year to determine the fair market value of the property as of the date of the faking. Leeper Electric responds that there ar~ three recognized methods for determining a property's fair market value, and the City of Carmel's suggested method is not one of them. In State v. Bishop, .800 N.E.2d 918 (Ind. 2003), our supreme court recently addressed how to assess the fair mhrket value.0f property that is taken by condemnation. There, our Sup'reme court stated that it is Well established in Indiana that the basic measure of damages in eminent domain cases is the fair market value 0fthe property at the time Of the taking. Bishop, 800 N.E.2d at 923; State v. Church of the Naza};ene Of Logansport 268 Ind. 523,526, 377 N.E.2d 607, 608 (1978). Seefostno[e Fair ma, rket Valfl6 is the price at Which pri~perty would change hands betvceen a willing buyer attd'seller, neither being Under any comPUlsion to-Consummate the sale. Ohio Cas. Ins. Co. v. Ramsey, 439 N.E.2d 1162, 1167 Uatd. Ct. App..1.982). '~Anything affecting the sale value [on the date of the taking].., is a proper mane~ for the jury's:d0i'/Siderati0n in attempting to arrive at a 'fair market'value:'" SO~thern Ind. Gas & .. El~c. Co. ~.'Gerhardt, -241 Ind. 389, 393, 172 N.E.2d 204, 205-06 (1961). Bishvp set Out the three widely a~cepted.approaches to egtimating the fair nim-ket value of property taken by eminent domab: The three methods Of evaluation are: (1) the current cost of reproducing the · .property less depreeiati0n' from all sources; (2) the market data approach or value indicated by recent sales 6f c6mpai'able ~6ropertieS in the market; and (3) the income-approach or'the value which the' p~'6perty's net earmng power will-support based upon the capitalization of net income. Bishop, 800 N.E.2d at 923-24; State v. ,Ion.es, 173 Ind. App. 246, 251, 363 N.E.2d 1018, 1024 (1977). In the appraisal of teal estate,-any one 0~ all thi'ee of these approaches to estimate the fair market value may be applied. ~lnnon. I[. Inc. v. Rill, 597 N.E.2d 320, 327 (ind. Ct. App. 1992). In the present case, 'the appraisers correctly usgd the market data approach to determine.the fa3r rnarket.x~alue of the si~bjeet property. The remaining approaches for determining th6. fa jr market value of the Sttbject property Were not applicable because the subject property was not developed. Thei'e were no builditigS or improvefnerits located on the real estate. The subject pi'operty was not _earning m6ney from 'either ~t'btminess.op'erating onthe property or from the property's natural resOurcEs.and there was nothing to reproduce except for the actual property. Leer/er Electric rri/tintains, at~d we agree, that a valuation by merely takingthe purchase price of the pr6perty and multiplying' it by a figure for annual appreciation is not, as th'e City.of Carmel suggests, a recognized'n'i6ttitSd"t0 deter~ne.the fair market value of real estate in an eminent domai~ proceeding.. Appraiser F~'ed Ellis.t~stified that he could not find any sales to give him a true appreciation figure. Moreover, even if such a method were recognized, it would not '6e applicable when the zoning .. classification 6f~e pt'operty changes from the time it is acquired to the time it is condemned. Here, the zomng of the Leeper Electt/c property when th~ property was ficquired was S-2 residential property. .However, the appraisers testified that the highest and best use of the property ~vas for commercial or business use. A landowner is entitled to the value of the property at its highest and best use, not necessarily the use 16 which it is presently bgmg put. Heinold, 484 N.E.2d at 598. There is no evidence '. ~at the highest arid best use 0fthe property was for residential use on the date o.f the taking..hq fact, the evidence sh6ws that the City of Carmel rezo~ed the U.S. 31 corridor to B-$.,~which accommodatdd the use of the i~ropertya~ a:h6tel. See Appellant S Appendix dt 61. The zoning fo~) a h0t6l was present and .there Was rio need t6rez0ne to permit this commercial use. Leeper Electric n,~eded a height valance to ,. 't~6c0nuhodate the ho!el's number of stories. This variance was appro.ved b/7/theCity'of Carmel s ''l-/ttp:)/ww~.ai:" ' ' drg/.jU~libi a ry/o~i n io~ s/CO m pl ete d/03180408 jsk.ht, m 1 · ""-- '-* --3/[8/2004 rage o oI o appropriate agencies, but the City of Carmel blocked Leeper Electric from developing the property by imposing a moratorium and passing an ordinance prohibiting any development of the property. Based on the evidence presented, the value of the subject property, on the date of the taking was no less than $1,120,000. The appraisers used the market data approach or value indicated by recent sales of comparable properties. This is one of the widely accepted methods for determining the fair market value of property. Sbe Bishbp, 800 N.E.2d at 923. The method of deterw2ning the value of the subject property suggested by the City of Carmel is not a recognized method of valuation. The jury's award of $675,000 was not. Within the bounds Of the evidence. As a result, we conclude that the trial court did not abuse its discretion by granting Leeper Electric's Motion to Correct Errors and by awarding damages in the amount of $1,120,000 pursuant to T.R. 59(J)(5). Affirmed. BAILEY, J., and vAIDIK, J., concur. Footnote: We heard Oral argument in this case on February l l, 2004, in Indianapolis, Indiana. Footnote: On cross-appeal. Leeper ElectPic argues that in the ePent this court finds that the trial court abused its discretioh'in.granting the mbtion to correct errors and awarding $1,120,000 in damages pu~'suant to T. R. 59(d)(.5) th[it th~ ohIy propeb relief that should b~ granted is a remand for a new trial on ali of the tssues. BecauSe we affirm the:trial coui't 's finaljudgment on the evidence for the amount 9f the ~roper 'damdges, we do not need to address this issue. 'Footnote: Appraise~'~ Ellis, PoSner. and Sanders were appointed by the trial court to deiermine the fair marlt~'t value of thg L.eeper Eloctric property as of November 3, 2000, the date of the taking. Appraiser Lady, howeger..was 'ortgi~ally hirdd by the City of Carmel to be an expert witness. Leepei' Electric entered Lady '~ deposition textimony as e~,idence at trial. · Fovtno'te: IC 32-24-4-9(g), which governs the amount of compensation to be awarded in eminent · dOma?n dases, stated: ~ Fft' thepu~'po~e'ofa~s~ging dompensation and damages, the right to compensation and d~mages is considered to have a~crued as of the date of the service of the notice proi, ided in's~ction 6 of this' chapter, and. actual ~alue.of compensatio'n and damages at that date shall be: (J) th~ measure of compensation fo}' aIl property to be actually acquired; and .'(2) the basis of damages to property not actually aqquired but injuriously affected; except as to the damages stated in subsection (c)(4). . . .' jmp:/Av~wc.ai:org/j~diciary/opirfions/completed/03 180408.jsk.hanl 3/18/2004 VOUCHE~ NO._~_____~_WARRANT NO. ON ACCOUNT OFAPPRoPRiATiON FOR ALLOWED IN SUM OF $ ~ 20 Cost distribution ledger classification if claim paid motor vehicle highway fund 5'?_¢/~bili(s) is (are) true and correct and that the ,oz~materials or.services itemized thereon for which charge is made were ordered and received except Board Members hereby certify that the attached invoice(s), or 20 ure '~ Title ~