RENDERED: MAY 12, 2023; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2022-CA-0397-MR

COMMONWEALTH OF KENTUCKY 

TRANSPORTATION CABINET, 

DEPARTMENT OF HIGHWAYS APPELLANT 

v. 

APPEAL FROM TAYLOR CIRCUIT COURT

HONORABLE SAMUEL T. SPALDING, JUDGE

ACTION NO. 18-CI-00268

HAROLD T. WILKERSON AND 

BRENDA WILKERSON APPELLEES

OPINION

AFFIRMING

**   **  **

BEFORE: THOMPSON, CHIEF JUDGE; CETRULO AND ECKERLE,

JUDGES.

CETRULO, JUDGE: This is an appeal by the Commonwealth of Kentucky 

Transportation Cabinet, Department of Highways (“DOT”) from a jury verdict and 

judgment of the Taylor Circuit Court in an eminent domain action.
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FACTUAL AND PROCEDURAL BACKGROUND

This matter arises from the construction of a road now known as the 

Campbellsville Bypass, which joins Highway 55 with Highway 70. To create the 

bypass, DOT needed to take property owned by Harold and Brenda Wilkerson

(“the Wilkersons”). Prior to the construction, their property was a farm and totaled

approximately 125 acres. DOT took approximately 18 acres of that for the Bypass.

The Wilkersons did not contest DOT’s right to condemn a portion of 

the property for this public purpose, so the parties began the process required by 

Kentucky Revised Statute (“KRS”) 416.580 to determine the amount of damages 

that DOT was required to pay the Wilkersons. Unable to agree, DOT filed the 

petition for condemnation on September 7, 2018. Pursuant to the statute, the Court 

appointed three commissioners who returned their report on September 14, 2018, 

awarding the Wilkersons $161,000 for the 18 acres. Both parties filed exceptions 

to that award. Nevertheless, DOT paid the award into court and obtained a 

judgment in January 2019 to take possession of the property, leaving the issue of 

damages for further litigation.

Both parties had retained expert appraisers and exchanged reports 

prior to trial. The expert for DOT, Rick Baumgardner (“Baumgardner”), opined 

that the fair market value of the property was $229,500. The expert for the 

Wilkersons, Otto Spence (“Spence”), valued the property at $583,096. Both 
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experts were deposed prior to trial. DOT also filed a number of pretrial motions, 

including a Daubert1 motion to exclude Spence’s testimony and appraisal.

The trial court denied both motions, but specifically stated in the order 

that Spence would not be permitted to provide valuations derived from the 

methodology commonly known as “price-tagging,” which is prohibited under 

Kentucky law. The matter proceeded to trial in March 2022.

DOT moved for a directed verdict at the close of its proof and at the 

close of evidence, both of which were denied. The parties tendered their proposed 

jury instructions, and the trial court declined to give DOT’s proposed instruction as 

to the “highest and best use” of the property. The jury returned a verdict finding 

the value of the 18 acres before the taking was $1,302,089, and the fair market 

value after the taking was $718,993 – a difference of $583,096 – the exact amount 

Spence had suggested. The trial court then entered a judgment ordering DOT to 

pay $424,686, plus interest, to the Wilkersons, which represented the difference 

between the jury award and the prior commissioners’ award. DOT timely 

appealed.

On appeal, DOT first asserts that the trial court erred in not directing a 

verdict in its favor. Tied to that argument, DOT asserts that the trial court erred in 

1 Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L .Ed. 2d 

469 (1993).
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refusing to strike Spence’s testimony. If that testimony had been stricken, DOT 

asserts, Baumgardner’s appraisal would have stood unrebutted, and the trial court 

would have had to grant the directed verdict motion. Next, DOT asserts that the 

trial court erred by permitting testimony and counsel’s arguments regarding the 

hypothetical impact that the future Ford battery plant would have on the value of 

the Wilkersons’ farm. Finally, DOT asserts that the trial court should have 

instructed the jury on the meaning of “highest and best use” in keeping with 

precedent.

STANDARD OF REVIEW

In making the decision to admit or exclude expert testimony under

Daubert, “the trial court must decide whether the testimony is reliable, a factual 

determination, and whether the testimony will assist the trier of fact in 

understanding or determining a fact in issue,” a discretionary decision. Oliphant v.

Ries, 460 S.W.3d 889, 897 (Ky. 2015) (citing Miller v. Eldridge, 146 S.W.3d 909, 

915 (Ky. 2004)). “We review the trial court’s factual findings regarding reliability 

for clear error,” while we use the abuse of discretion standard to review the trial 

court’s decision regarding admissibility. Id. (citation omitted). A factual finding is 

deemed clearly erroneous if it is not supported by evidence of substance sufficient 

to induce conviction in the minds of a reasonable person. City of Fort Thomas v.

Cincinnati Enquirer, 406 S.W.3d 842, 854 (Ky. 2013). However, a trial court 
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abuses its discretion only if its decision was arbitrary, unreasonable, unfair, or 

unsupported by sound legal principles. Miller, 146 S.W.3d at 914.

PRETRIAL RULINGS

We first address DOT’s assertion that the trial court erred in refusing 

to strike the testimony of Spence. In support of this contention, we are directed to 

the in limine Daubert motion.

In that motion, DOT asserted three grounds to preclude Spence from 

testifying. It contended that (1) Spence had engaged in a valuation method known 

as price-tagging, forbidden by Kentucky precedent; (2) he relied on an improper 

definition of highest and best use; and (3) he used the incorrect effective date for 

his appraisal. The trial court heard arguments of counsel, considered briefs and 

deposition testimony, and issued findings of fact, conclusions of law, and an order

on February 3, 2022.

In its ruling, the trial court noted that it had considered the testimony, 

presented only in depositions at that point. The trial court also noted that the 

Wilkersons’ attorney acknowledged that price-tagging was prohibited by law and 

that the price-tagging portion of Spence’s deposition testimony would not be 

presented at trial but had only been provided in response to questions by DOT’s 

counsel. In short, the Wilkersons asserted that Spence would only testify at trial as 
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to the value of the property before and after the taking, in accordance with 

KRS 416.660(1).2

Based on those representations, the trial court held that Spence could

testify at trial even though the ruling precluded utilization of “price-tagging” by the 

expert. Thus, it appears that the trial court did exactly what it was called to do 

under Daubert and our Rules of Evidence. It served as a gatekeeper and directed 

the parties as to what Spence could discuss at trial.

In fact, the trial court specifically ordered Spence to testify in 

accordance with KRS 416.660(1) and made it clear that he would not be allowed to 

provide price-tagging valuations. The order further specifically stated that 

Spence’s testimony would not be excluded “at this time.” That ruling does not 

reflect any abuse of discretion and indeed reflects a good understanding of DOT’s 

position, as the trial court further directed that “Mr. Spence shall only be allowed 

to provide an opinion as to the value of the Wilkersons’ farm immediately prior to 

and immediately after the taking.” At trial, DOT made no objections to Spence’s

testimony. Further, DOT’s cross-examination of Spence in no way illustrated that 

he had used an improper calculation. No avowal evidence was provided.

2 KRS 416.660 (1) states, in pertinent part, that “all actions for the condemnation of lands under 

the provisions of KRS 416.550 to 416.670 . . . there shall be awarded to the landowners as 

compensation such a sum as will fairly represent the difference between the fair market value of 

the entire tract . . . immediately before the taking and the fair market value of the remainder 

thereof immediately after the taking . . . .”
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However, on appeal, DOT asserts that Spence calculated his values

using incorrect formulas, and that his calculations were based on price-tagging. 

This, DOT argues, is akin to allowing a mathematician to testify regarding the area 

of a rectangle when she has used the formula for the area of a circle to arrive at her 

opinions.

In response, the Wilkersons maintain that the trial court went to some 

lengths to exercise its gatekeeping responsibilities and made it clear that Spence’s 

testimony would be limited at trial, if necessary, to comport with KRS 416.660(1).

The trial court conducted a hearing on the motions; reviewed memoranda, 

depositions, and exhibits; and specifically ordered Spence to present only 

statutorily compliant valuations to the jury. If those valuations were indeed based 

on an improper valuation method, it was incumbent upon DOT to address that on 

cross-examination, or by avowal or another motion, so the trial court and this Court 

could determine whether an error occurred. However, with no objection during 

trial to any of the testimony of Spence, and with no avowal or other evidence to 

support DOT’s claim that Spence used an incorrect formula, we cannot say that the 

trial court erred in allowing his testimony.

Next, DOT asserts that Spence relied on an improper definition of 

“highest and best use,” an argument which the trial court also considered in its 

pretrial order. Spence’s valuation was based upon his opinion that the highest and 
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best use of the property was residential. However, DOT’s expert appraised the 

property based on future agricultural use.

DOT asserts that Spence’s testimony as to residential development 

potential was purely hypothetical and not based on any actual demand for 

residential development in the area, at the time of taking. Again, in its pretrial 

rulings, the trial court addressed that concern; specifically, the definitions and 

explanations of the phrase, “highest and best use” as it appears in various cases 

arising out of condemnation trials. Based on its review of the caselaw, the trial 

court ultimately concluded that it was a matter for the jury and that evidence could

be introduced at trial, which would allow a reasonable juror to conclude that a 

reasonable probability existed in the reasonably near future that the land taken 

could be used for residential purposes. In short, the trial court denied this basis for 

excluding Spence’s testimony, finding that his opinion was not simply hypothetical 

or speculative, but a matter for the jury. We agree.

Both parties refer this Court to Baston v. County of Kenton, ex rel.

Kenton County Airport Board, 319 S.W.3d 401 (Ky. 2010). In Baston, this Court 

reversed a jury award in favor of the landowner. Id. at 406. That decision was 

then reversed by the Kentucky Supreme Court, finding that a panel of this Court

had substituted its weighing of the evidence for that of the jury. Id. There, the 

Supreme Court noted that
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[b]ecause the market value is affected by potential uses of

the property as well asthe use to which it is currently being

put, market value means the amount in cash that a willing

buyer would pay to a willing seller, taking into

consideration “all the uses for which it is suitable. The

highest and most profitable use for which the property is

adaptable and needed or likely to be needed in the

reasonably near future is to be considered . . . to the full

extent that the prospect of demand for such use affects the

market value while the property is privately held.”

Id. (quoting Olson v. United States, 292 U.S. 246, 255, 54 S. Ct. 704, 709, 78 L.

Ed. 1236 (1934)).

Similarly, in Paducah Independent School District v. Putnam & Sons, 

LLC, 520 S.W.3d 367 (Ky. 2017), the Supreme Court reinstated a trial court’s 

award in an eminent domain action, finding that the trial court’s approach was 

legally sound and properly grounded in the record. The trial court therein 

considered evidence of a nine year old self-assessment by the landowner in its 

evaluation of the property value. Id. at 379. As the Supreme Court held therein, 

again reversing this Court for substituting its opinion for the factfinder, there is a 

liberal rule of admissibility in these condemnation cases. Id. In light of the 

direction of the Supreme Court to this Court, in Baston and Paducah School 

District, we do not find the trial court abused its discretion in permitting Spence’s 

testimony.

Thirdly, on this point, DOT asserted that Spence’s report included the 

wrong date for the appraisal, even though Spence testified at trial using the proper 
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date of taking and valuation, January 8, 2019. The trial court did not find a fourmonth discrepancy on the date of the report to be sufficient to exclude testimony 

from being presented at trial, and any previous error was clarified at trial. Again, 

the trial court did not abuse its discretion when it allowed Spence to testify.

DIRECTED VERDICT ISSUE

DOT then argues that if the trial court had excluded the testimony of 

Spence, their expert witness would have stood unrebutted as to the fair market 

value of the property and, thus, the Commonwealth would have been entitled to a 

directed verdict in its favor. Having already determined that the trial court did not 

abuse its discretion in allowing the jury to consider testimony from both experts, 

and that it fulfilled its gatekeeping responsibility in considering the proposed 

testimony before trial, we cannot agree that the trial court erred in denying a 

directed verdict.

“In ruling on a directed verdict motion, the trial court should draw all 

inferences in favor of the nonmoving party, and a verdict should not be directed 

unless the evidence is insufficient to sustain the verdict.” Hyman & Armstrong,

P.S.C. v. Gunderson, 279 S.W.3d 93, 106 (Ky. 2008) (citing Kroger Co. v.

Willgruber, 920 S.W.2d 61, 64 (Ky. 1996)). Questions as to the weight and 

credibility of the testimony are reserved for the jury. Id. (citing Commonwealth v.

Benham, 816 S.W.2d 186, 187 (Ky. 1991)). Whether the trial court erred in 
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denying the motions for a directed verdict is a matter that this Court reviews for 

clear error. Bierman v. Klapheke, 967 S.W.2d 16, 19 (Ky. 1998).

In considering this issue, we note a second directive from Baston:

Generally, any fact a willing buyer or seller would deem

material to the negotiation is relevant, but if the landowner

wishes to present to the jury a prospective use other than

the use to which the property is being put at the time of the

taking, he or she mustshow both that the land is physically

adaptable to such use, and that there is a need or demand

for such use at the time of the taking or that there will be

in the reasonably near future.

Baston, 319 S.W.3d at 406-07 (emphasis added) (citing Commonwealth, Dep’t of

Highways v. Gearhart, 383 S.W.2d 922 (Ky. 1964)).

DOT asserts that the Wilkersons’ evidence failed to show a “need or 

demand” for residential development at the time of the taking in 2019 or a 

reasonable period thereafter. However, Mr. Wilkerson testified that he believed

his property would generate the most income if he sold it for residential

development rather than its present agricultural use. Spence testified that he

believed there was demand for residential development at the time of taking and

that the property was well positioned for that, particularly in light of the purchases

that the Wilkersons had made over many years to enhance accessibility of the

property.
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Kentucky’s highest Court addressed a similar issue in Commonwealth,

Department of Highways v. Siler, 411 S.W.2d 937 (Ky. 1967). There, the

appellate court stated that

[e]ven if the [property owners] had never thought of 

subdividing or selling the property (in which case, literally 

speaking, there could have been neither ‘expectation’ nor 

‘probability’), the evidence as to its location and 

topography was enough to suggest the probability of its 

having present value for residential development. That, 

with qualified opinion testimony to the same effect, 

provided adequate foundation for the evidence in question.

Id. at 939. See also Commonwealth, Dep’t of Highways v. Clore, 438 S.W.2d 498, 

500 (Ky. 1969).

As such, the appellate court found there was no “reasonable basis on 

which [the experts’] evidence could be held so devoid of probative value as to 

render the verdict unsupportable.” Siler, 411 S.W.2d at 940. Here, similarly, 

Spence was qualified to give valuation testimony, and he provided similar 

evidence as the experts in Siler. Therefore, we too must find the verdict was 

supportable and the trial court did not err when it denied DOT’s motion for

directed verdict.

TRIAL RULINGS

DOT argues that the trial court erred in allowing witnesses to testify 

and in permitting the Wilkersons’ attorney to argue about the potential effect of the 

Ford battery plant. This Court reviews the trial court’s rulings on evidentiary 
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issues using an abuse of discretion standard. Love v. Commonwealth, 55 S.W.3d 

816, 822 (Ky. 2001) (citation omitted).

DOT asserts that the trial court abused its discretion as the 

Wilkersons’ case was premised on improper references to the “housing boom that 

would be coming” and the “literal thunderbolt of the Ford plant announcement,”

which made Spence’s “predictions” of the highest and best use correct. Again, 

DOT points to Baston, which required that there be a need and demand for the 

stated use “at the time of the taking or that there will be in the reasonably near 

future.” Baston, 319 S.W.3d at 406-07. However, Baston ultimately held that 

incidental references to the effect of the project in issue and comments of counsel 

in closing arguments were not so egregious as to require reversal of the jury 

verdict. Id. at 413. Once again, Baston does not provide the support that DOT 

suggests.

It is undisputed that the time of taking of this property by the 

Commonwealth was January 8, 2019. Sometime in 2021, Governor Beshear 

announced that two electric battery plants would be established approximately 45

miles from the Wilkersons’ property. It has been widely publicized as the largest 

economic development in the history of the Commonwealth. It is certainly 

reasonable to assume that the jurors were all well aware of the planned future 

development.
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While the plants are not expected to open until 2025, the Wilkersons’ 

case at trial did largely focus on the suggestion that the future development would 

lead to extensive residential development and therefore should serve as further

basis for evaluating the value of their taken property. Still, Spence opined that the 

highest and best use of the property at the time of the taking was residential 

development. In contrast, DOT’s case relied upon Baumgardner, who offered his 

opinion that the highest and best use was agricultural. The jury heard evidence that 

the farm had been split in half with the cattle largely separated from shade and 

water by the bypass road. The two competing expert opinions resulted in a 

significant disparity in their valuations. By its verdict, the jury clearly chose to 

accept the value and the best use suggested by Spence.

On appeal, DOT asserts that the jury was influenced by the references 

to the future Ford plant made by witnesses and in closing argument by counsel for 

the Wilkersons. Unfortunately for DOT, those arguments fail primarily due to lack 

of preservation. We have carefully reviewed the record of proceedings, and there 

was no objection to the statements of counsel during closing arguments. Further, 

DOT did not object during the entire testimony of Spence. The record further 

reveals that Baumgardner, not Spence, was the expert who brought up the future 

development in his direct examination testimony:

DOT Counsel: Rick, what can you tell the jury about 

development in the area of Dr. Wilkerson’s property?
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Baumgardner: There’s a lot of large tracts and very 

limited new development has occurred. That doesn’t 

mean it’s not going to occur in the future because I think 

we are going to see demand increase. Socioeconomic 

factors for this market are going to change. You’re all 

going to see some growth spurt because of the Ford plant 

in Hardin County for instance. I think it’s going to 

influence 12-15 counties, so, but that’s in 2022 and 

beyond. But in 2019 there just wasn’t a lot of proof for a 

demand for subdivision potential at the time.

When the Wilkersons’ counsel cross-examined Baumgardner, he

asked what Baumgardner meant when he said the “Ford plant in Hardin County.” 

DOT’s counsel asked to approach the bench, whereupon the following exchange 

took place:

DOT Counsel: Your Honor, this discussion about the Ford 

plant in Hardin County is inappropriate.

The Court: He brought it up on direct.

Wilkersons’ Counsel: I was going to say, he’s the one who 

opened the door.

The Court: Motion overruled. Let’s proceed.

The Kentucky Supreme Court has explained that “‘opening the door’

to otherwise inadmissible evidence is a form of waiver that happens when one 

party’s use of inadmissible evidence justifies the opposing party’s rebuttal of that

evidence with equally inadmissible proof.” Commonwealth v. Stone, 291 S.W.3d 

696, 701-02 (Ky. 2009) (citation omitted). Even if evidence as to the future Ford
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plant was inadmissible (which is not an issue before this Court), we cannot state 

that the trial court erred in permitting that testimony to be heard once the door was 

opened. In regard to that statement, we agree with the trial court that Baumgardner

brought up the subject, and the opposing party was therefore entitled to crossexamine the witness on that subject.

As to the statements in closing, few civil cases have found that the 

statements of counsel were such as to inflame the passions of the jury and generate 

a verdict that was not supported by the evidence. Indeed, this verdict was 

supported by the evidence, as discussed. In reviewing the cases, we note that each 

case must be determined on its own unique facts, and an isolated instance of 

improper argument has seldom been found to be prejudicial. See Stanley v. 

Ellegood, 382 S.W.2d 572 (Ky. 1964) (holding it was improper for attorneys to ask 

jurors to treat a plaintiff how they would wish to be treated over several objections 

of opposing counsel); see also H.P. Selman & Co. v. Goldstein, 278 S.W.2d 713

(Ky. 1955) (holding it was not prejudicial for attorneys to refer to an expert as the 

party’s “working employee” because that expert was regularly retained by the law 

firm representing that party).

When there has been a finding of prejudice, it has only been after 

objections were made or when the verdict appeared to have been the result of 

improper references to excluded testimony or “Golden Rule” arguments by 
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counsel. See Smith v. McMillan, 841 S.W.2d 172, 174 (Ky. 1992). That is not the 

case here, and we find no grounds to set aside the jury verdict on that basis.

In Baston, as well, while there were objections to the arguments of 

counsel, our Supreme Court held that “the airport’s wealth was hardly a secret, and 

counsel’s references to it were not” so inflammatory as to distract the jury from the 

evidence. Baston, 319 S.W.3d at 413. Likewise, here, the future development of 

the Ford factory was hardly a secret. Additionally, it was first mentioned by 

Baumgardner on direct examination, and then there were no objections during the 

closing argument. As such, the trial court did not abuse its discretion when it 

permitted the testimony, and there are no grounds to set aside the verdict for 

comments in closing regarding the Ford plant.

Finally, DOT argues that the trial court erred in declining to instruct 

the jury on the meaning of “highest and best use.” An alleged error regarding jury 

instructions raises a question of law which the appellate court reviews de novo. 

Oghia v. Hollan, 363 S.W.3d 30, 31 (Ky. App. 2012). As DOT frames it, “this 

trial was a dispute over the highest and best use of the property at the time of the 

taking – was it agricultural, the use at the time, or residential development, a 

hypothetical future use?”

A tendered instruction was provided with a definition of “highest and 

best use”:
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“Highest and best use” means the highest and most 

profitable use for which the property is adaptable and 

needed or likely to be needed in the reasonably near future 

is to be considered to the full extent that the prospect of 

demand for such use affects the market value while the 

property is privately held.

If the landowner wishes to present to the jury a 

prospective use other than the use to which the property is 

being put at the time of the taking, he or she must show 

both that the land is physically adaptable to such use, and 

that there is a need or demand for such use at the time of 

the taking or that there will be in the reasonably near 

future.

The trial court denied the request for this instruction finding that this 

was a jury question and that this definition instruction was not typically provided 

in such cases or in pattern instructions manuals. We find no reversible error in that

ruling. When words or expressions are not commonly understood by the public, 

there is no error in defining them; however, in condemnation cases, the instructions 

are generally limited to defining the terms “fair market value.” DOT has not 

directed us to any case which holds that “highest and best use” must also be 

defined. Kentucky courts generally support the practice of “bare bones”

instructions and permitting counsel to “flesh out” the law in their arguments. Cox 

v. Cooper, 510 S.W.2d 530, 535 (Ky. 1974). Indeed, counsel for DOT did just 

that, when he read the above language defining “highest and best use” to the jury

in his closing argument.
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In conclusion, we turn for the final time to the Supreme Court 

decision in Baston:

In Kentucky, a jury ultimately determines what 

compensation is just, and in this case there was more than 

ample evidence for the jury to decide that the Baston

property, surrounded by industrial development and in an 

area which both the Airport Board and the Boone County 

Planning Commission envisioned as industrial, would be 

put to its highest and best use by being developed 

industrially rather than residentially.

319 S.W.3d at 413.

Likewise, in this case, there was ample evidence for the jury’s 

decision. As such, we AFFIRM the judgment of the Taylor Circuit Court.

ALL CONCUR.

BRIEFS FOR APPELLANT:

Colton W. Givens

Thomas N. Kerrick

Bowling Green, Kentucky

BRIEF FOR APPELLEES:

Barry Bertram

Campbellsville, Kentucky

Robert Spragens, Jr.

Lebanon, Kentucky