SUMMARY

June 9, 2022

2022COA63

No. 20CA2013, CORE Electric Cooperative v. Freund 

Investments, LLC — Eminent Domain — Condemnation —

Evidence Concerning Value of Property; Evidence — Hearsay 

Exceptions — Public Records and Reports

In this condemnation case, a division of the court of appeals 

determines that comparable sales that are not verified in 

compliance with section 38-1-118, C.R.S. 2021, may be admissible 

under the subsequently adopted hearsay exceptions under CRE 

803. Section 38-1-118 provides for the admission of evidence of 

property values in eminent domain proceedings where the witness 

“has personally examined the record and communicated directly 

and verified the amount of such consideration with either the buyer 

or seller.” As a matter of first impression, the division concludes 

that nothing in the language of section 38-1-118 directly addresses 

the exclusion of evidence of comparable sales. Thus, the hearsay 

The summaries of the Colorado Court of Appeals published opinions 

constitute no part of the opinion of the division but have been prepared by 

the division for the convenience of the reader. The summaries may not be 

cited or relied upon as they are not the official language of the division. 

Any discrepancy between the language in the summary and in the opinion 

should be resolved in favor of the language in the opinion.
exceptions under CRE 803 are independent and alternative 

methods to section 38-1-118 for the admission of hearsay evidence 

of the value of comparable sales. 
COLORADO COURT OF APPEALS 2022COA63

Court of Appeals No. 20CA2013

Arapahoe County District Court No. 18CV32213

Honorable Elizabeth Weishaupl, Judge

CORE Electric Cooperative, a Colorado cooperative electric association and 

nonprofit corporation, f/k/a Intermountain Rural Electric Association,

Petitioner-Appellee,

v.

Freund Investments, LLC, a Colorado limited liability company, 

Respondent-Appellant.

JUDGMENT AFFIRMED

Division V

Opinion by JUSTICE MARTINEZ*

Fox and Gomez, JJ., concur

Announced June 9, 2022

Alderman Bernstein LLC, Jody Harper Alderman, Carrie S. Bernstein, Amanda 

A. Bradley, Denver, Colorado, for Petitioner-Appellee

Campbell Killin Brittan & Ray, LLC, Bruce E. Rohde, Margaret R. Pflueger, 

Denver, Colorado, for Respondent-Appellant

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.

VI, § 5(3), and § 24-51-1105, C.R.S. 2021.
1

¶ 1 In this condemnation case, respondent, Freund Investments, 

LLC (Freund), appeals the trial court’s judgment entered on a jury 

verdict after a valuation trial. Freund contends that the trial court 

erred by (1) finding its appraiser’s valuation based on the 

subdivision development method inadmissible; and (2) excluding

evidence of multiple comparable sales pursuant to section 38-1-

118, C.R.S. 2021. We affirm.

I. Background

¶ 2 Petitioner, CORE Electric Cooperative (CORE), formerly known 

as Intermountain Rural Electric Association, filed a petition in 

condemnation to acquire a nonexclusive permanent easement over 

26.07 acres on the western-most edge of Freund’s 2,722-acre 

property (the Property) to construct and operate a 115kV 

transmission line and ancillary distribution facilities extending from 

CORE’s Kiowa substation to its Brick Center substation. CORE 

also petitioned for a temporary construction easement over smaller 

portions of the Property. At the time of the petition, the Property 

was primarily used for agricultural purposes. 

¶ 3 The parties stipulated to CORE’s immediate possession of the 

land subject to the easements and the case proceeded to a 
2

valuation determination. On receiving their appraisers’ reports, the 

parties agreed that the highest and best use of the Property was to 

divide the Property into thirty-five- and forty-acre residential lots for 

future sale. 

¶ 4 In determining the fair market value of the condemned 

property and any diminution to the fair market value to the residue, 

Freund’s appraiser, Gregory Owen, used two methods of valuation 

— the sales comparison approach and the subdivision development 

method. 

¶ 5 First, using the sales comparison approach, Owen relied on 

seven similar properties to arrive at a per-acre value of $2,000. 

Based on this per-acre value, he concluded that the permanent 

easement’s value was $50,000. He also concluded that the 

temporary construction easement’s value was $5,000 based on 

similar temporary land leases. Next, to calculate the loss in value 

to the Property caused by the condemnation, Owen adjusted the 

per-acre value by 5% and arrived at a per-acre value of $1,900 after 

condemnation. After subtracting the post-condemnation value from 

the pre-condemnation value, he estimated the value of just 
3

compensation under the sales comparison approach to be 

$330,000.

¶ 6 Second, using the subdivision development method, Owen first 

divided 1,766.27 acres of the Property into forty-four hypothetical 

forty-acre lots, each designated as premium or nonpremium lots 

based on the appeal and terrain of the lot (i.e., unobstructed views, 

creek access, trees), with a surplus of 955.68 acres. Owen relied on 

ten similar properties to estimate the retail value of the twenty-eight 

premium lots to be $240,000 and the sixteen nonpremium lots to 

be $200,000. Before condemnation, he projected that four to six 

lots would be sold each year over a ten-year period, with an

increase in value to each lot by 3% annually to account for 

inflation, and then added the estimated value of all the lots 

together. Next, relying on market data, he deducted the estimated 

costs of selling the lots, the estimated development costs, the 

estimated developer profit, and the estimated entrepreneurial 

incentive/discount rate from the total estimated value of the lots. 

After adding the value of the surplus with an estimated value of 

$2,000 per acre, Owen arrived at a total pre-condemnation value of 

$5,650,000 for the entire property.
4

¶ 7 After condemnation, Owen opined that six and one-half 

premium lots changed to nonpremium lots because the scenic view 

on those lots was obstructed by the transmission lines. Due to the 

increase in nonpremium lots, Owen projected that two to six lots 

would be sold each year over an eleven-year period. Using the same 

method to determine the pre-condemnation value, he arrived at a 

post-condemnation value of $5,380,000 for the entire Property. He 

then subtracted the post-condemnation value from the 

pre-condemnation value to arrive at an estimated just 

compensation value under the subdivision method of $270,000.

¶ 8 Owen’s final estimation for just compensation was $300,000, 

the median value of the two valuation methods.

¶ 9 CORE filed a motion in limine to exclude Owen’s expert 

opinion and appraisal report in its entirety, arguing that his 

appraisal methodology was inadmissible under Department of 

Highways v. Schulhoff, 167 Colo. 72, 445 P.2d 402 (1968), and

Board of County Commissioners v. Vail Associates, Ltd., 171 Colo. 

381, 468 P.2d 842 (1970). The trial court found Owen’s opinion 

using the subdivision development method inadmissible, reasoning

that “the Colorado Supreme Court expressly forbids the method of 
5

hypothetically carving a land into smaller tracts, estimating the 

value of each site and then adding the estimated values of all the

sites together.” See Schulhoff, 167 Colo. at 79, 445 P.2d at 406. 

But the court found Owen’s opinion using the sales comparison 

approach admissible.

¶ 10 Before trial, CORE objected to the admission of Owen’s 

opinion based on the sales comparison approach because Owen did 

not directly communicate with the buyer or seller of the seven 

comparable sales to verify the amount of consideration as required 

by section 38-1-118. Freund argued that Owen was able to verify

the amount of consideration for one comparable sale with the

buyer. Thus, the trial court noted that Owen’s opinion on the 

remaining unverified sales would be admissible under the public 

records hearsay exception, CRE 803(8), because Owen confirmed 

the comparable sales’ prices with the assessor’s records and 

cross-checked the prices with the clerk and recorder records.

¶ 11 Nonetheless, the trial court excluded six out of the seven 

comparable sales as inadmissible under section 38-1-118. 

Applying “the statute as written,” the court found that Owen 

personally examined the record for all seven comparable sales, but 
6

he verified the amount of consideration for only one comparable 

sale with the buyer. Because the statute required both steps, only 

the one comparable sale that was verified with the buyer was 

admissible.

¶ 12 In light of the court’s rulings, Owen’s testimony at trial was 

limited to his valuation of the Property using the comparable sales 

approach based on one comparable sale. Owen also testified that 

the transmission lines impacted the view corridor of the Property 

and decreased to zero the value of the twenty-six acres on which the 

lines are located. Freund also called a second appraiser, W. West 

Foster, who was hired by CORE to appraise the Property. Foster 

used the comparable sales method to determine a per-acre value of 

$2,500. Because the nonexclusive easement was within the 

building setback area, Foster arrived at a 50% condemnation value 

of $32,588. He also valued the temporary easement at $693 with a 

10% rental rate. The total compensation estimate based on Foster’s 

appraisal was $33,300, with no damage to the residue.

¶ 13 In rebuttal, CORE’s appraiser, Michael Earley, using the

paired sales analysis approach to compare similar thirty-five-acre 

residential sites with and without transmission lines, testified that 
7

the existence of transmission lines did not impact the fair market 

value of the residential sites. Earley did not, however, conduct a 

valuation of the Property as a whole.

¶ 14 The jury awarded Freund $33,300 in damages for the 

condemned property and $50,000 in damages to the residue.

II. Subdivision Development Method

¶ 15 Freund first contends that the trial court erred by finding 

Owen’s valuation using the subdivision development method 

inadmissible under Schulhoff and Vail Associates, Ltd. Specifically, 

it argues that Owen’s subdivision development method was not too 

speculative and that his methodology went to the weight of his 

testimony, not the admissibility. We disagree.

A. Standard of Review and Applicable Law

¶ 16 We review a trial court’s evidentiary rulings for an abuse of 

discretion. Palizzi v. City of Brighton, 228 P.3d 957, 962 (Colo. 

2010). A trial court abuses its discretion only if its decision was 

manifestly arbitrary, unreasonable, or unfair, or based on an 

erroneous understanding or application of the law. Bd. of Cnty. 

Comm’rs v. DPG Farms, LLC, 2017 COA 83, ¶ 34. “Whether the 
8

court misapplied the law in making evidentiary rulings is reviewed 

de novo.” Id.

¶ 17 “Private property shall not be taken or damaged, for public or 

private use, without just compensation.” Colo. Const. art. 2, § 15. 

“Just compensation is measured by the actual fair market value of 

the property, taking into consideration its most advantageous use 

at the time of the condemnation.” Palizzi, 228 P.3d at 962. 

¶ 18 The purpose of a valuation proceeding is to replicate the 

market. Id. at 963. In such a proceeding, the fact finder must 

determine how much a willing buyer would pay for the property if 

the owner had voluntarily offered the property for sale. Id. In doing 

so, the fact finder is permitted to consider the reasonable 

probability of a future use of a property to the extent that it relates 

to the value of the property. Vail Assocs., Ltd., 171 Colo. at 388, 

468 P.2d at 845 (“It is fundamental that evidence of the highest and 

best use to which the property may reasonably be applied in the 

future . . . is admissible to assist the commission or jury in arriving 

at the present cash market value of the property being taken.”). 

Although the scope of admissible evidence of the value of the 

property is expansive, the trial court will not admit evidence of the 
9

property’s highest and best use that is too speculative. DPG Farms, 

LLC, ¶ 14 (citing Schulhoff, 167 Colo. at 77, 445 P.2d at 405). 

¶ 19 One accepted method for proving the amount a willing buyer 

would pay for the property is the comparable sales approach (also 

referred to as the market data approach). Denver Urb. Renewal 

Auth. v. Berglund-Cherne Co., 193 Colo. 562, 565, 568 P.2d 478, 

480 (1977). Under that approach, the value of condemned property 

is determined, in part, by prices paid for similar property:

Evidence of the price paid for similar property 

in a voluntary sale is admissible on the 

question of value of the property condemned, 

provided the properties sold are similar in 

locality and character to the property in 

question and not so far removed in point of 

time to make a comparison unjust or 

impossible.

Schulhoff, 167 Colo. at 80, 445 P.2d at 406.

¶ 20 It is also permissible and proper to show that a tract of land is 

suitable for subdivision into lots. Id. at 77, 445 P.2d at 405. 

However, it is improper to show the number and value of lots as 

separated parcels in an imaginary subdivision as an accomplished 

fact. Id. 
10

¶ 21 For example, it is speculative, and therefore improper, to 

hypothetically carve up a tract of land into residential building 

sites, estimate the value of each site, and then add the values 

together. Vail Assocs., Ltd., 171 Colo. at 388-89, 468 P.2d at 846 

(citing Schulhoff, 167 Colo. at 74, 445 P.2d at 403). Under this 

method of valuation, the cost of improvement is conjectural and,

thus, reflects prospective value rather than present fair market 

value. 

B. Analysis

¶ 22 Our supreme court’s decisions in Schulhoff and Vail 

Associates, Ltd. generally prohibit use of the subdivision 

development method of valuation to determine the value of property 

that has not been subdivided. Owen valued the Property by 

dividing the Property into forty-four hypothetical residential lots, 

estimated the value of the individual lots, and then added the 

estimated values of all the lots sold over a ten- and eleven-year 

period with an annual inflation rate of 3%. Owen went another step 

further and deducted costs associated with developing the Property

based on current market estimates.
11

¶ 23 Still, Freund contends that Owen’s subdivision development 

method was admissible under Board of County Commissioners v. 

Evergreen, Inc., 532 Colo. App. 171, 532 P.2d 777 (1974), because 

the valuation was based on predictable market values, making the 

subdivision “probable.” Freund’s reliance on Evergreen, however, is 

misplaced. The condemned property in that case was already 

platted and “already subdivided and presently for sale for 

residential purposes.” Id. at 174, 532 P.2d at 779. Thus, the 

valuation of individual lots on the condemned property using the 

sale price of comparable lots was admissible. Id. at 176, 532 P.2d 

at 780. Here, at the time of condemnation, the Property was

undeveloped land on which no measures had been taken to prepare 

for subdivided lots. Nor is there any evidence in the record that

there was a timeframe for commencement of any work. Therefore, 

any valuation of hypothetical lots within a hypothetical subdivision 

on the Property is highly speculative, even if Owen’s valuation was 

based on easily ascertainable market data. See Vail Assocs., Ltd., 

171 Colo. at 389, 468 P.2d at 846 (“The measure of compensation is 

not the aggregate of values of individual plots into which the tract 

taken could best be divided, but rather the value of the whole tract
12

as it exists at the time of the condemnation, taking into 

consideration its highest and best future use.”). This is particularly 

true given that Owen assigned different, prospective values to the 

lots based on their premium status, estimated the number of lots 

sold each year over a ten- and eleven-year period, and increased the 

value of the lots by 3% each year for inflation.

¶ 24 To the extent that Freund contends that Owen was precluded 

from testifying about the impact the transmission lines had on 

particular portions of the Property, the record belies this 

contention. Owen testified that the twenty-six acres of condemned 

property, previously valued at $50,000, was valueless. Moreover, 

during cross-examination, CORE used Owen’s grid of the 

hypothetical subdivision to confirm that Owen opined that six and 

one-half of the forty-four hypothetical lots would be directly 

impacted by the transmission lines. 

¶ 25 Finally, contrary to Freund’s contention, Earley did not use a 

similar methodology when creating his rebuttal report. Our 

supreme court has concluded that the use of the paired sales 

analysis approach is a proper method of valuation. Herring v. Platte 

River Power Auth., 728 P.2d 709, 712-13 (Colo. 1986). Earley used 
13

the same paired sales analysis approach the appraiser in Herring

employed to determine whether the presence of transmission lines

on a property reduced the value of the thirty-five-acre residential

property within a subdivision when compared to the value of a 

neighboring residential property without transmission lines. From 

his “paired analyses,” Earley opined that the presence of 

transmission lines did not affect the value of the properties. See id.

at 711-12 (“[T]he appraiser compared sales of properties within 

each of the subdivisions, properties that were generally similar in 

all respects except, according to the appraiser, that one parcel of 

each pair was visually and aesthetically affected by the presence of 

an electrical substation.”). Similarly, he did not compare the sales 

prices of the properties within the subdivisions to the value of 

Freund’s property, nor did he make a valuation of the Property as a 

whole. See id. at 712.

¶ 26 Accordingly, the trial court did not err by finding Owen’s 

valuation using the subdivision development method inadmissible.

III. Comparable Sales

¶ 27 Freund next contends that the trial court erred by excluding 

evidence of the unverified comparable sales because the comparable 
14

sales prices were admissible under the hearsay exceptions for 

public records, CRE 803(8), and for records of documents affecting 

an interest in property, CRE 803(14). Although we agree that the 

hearsay exceptions apply to the admissibility of comparable sales in 

a condemnation case and that the trial court erred, we discern no 

reversible error.

A. Standard of Review and Applicable Law

¶ 28 Generally, trial courts have broad discretion to determine the 

admissibility of evidence. Bocian v. Owners Ins. Co., 2020 COA 98, 

¶ 64. Here, however, this issue involves the court’s interpretation 

and application of section 38-1-118, a question of law reviewed de 

novo. See E-470 Pub. Highway Auth. v. 455 Co., 3 P.3d 18, 22 

(Colo. 2000). 

¶ 29 “Our primary objective is to effectuate the intent of the General 

Assembly by looking to the plain meaning of the language used, 

considered within the context of the statute as a whole.” Bly v. 

Story, 241 P.3d 529, 533 (Colo. 2010). When construing eminent 

domain statutes, “[w]e construe such statutes narrowly and resolve 

ambiguities in favor of the condemnee landowner.” Id.

¶ 30 As relevant here, section 38-1-118 provides that
15

[a]ny witness in a proceeding under articles 1 

to 7 of this title, in any court of record of this 

state wherein the value of real property is 

involved, may state the consideration involved 

in any recorded transfer of property, otherwise 

material and relevant, which was examined 

and utilized by him in arriving at his opinion, 

if he has personally examined the record and 

communicated directly and verified the amount 

of such consideration with either the buyer or 

seller. Any such testimony shall be admissible 

as evidence of such consideration and shall 

remain subject to rebuttal as to the time and 

actual consideration involved and subject to 

objections as to its relevancy and materiality.

(Emphasis added.)

B. Analysis

¶ 31 Before the Colorado Rules of Evidence were adopted, section 

38-1-118 was enacted to allow witnesses to testify about the value 

of real property based on evidence that would have been

inadmissible under the hearsay rule in effect at that time. Denver 

Urb. Renewal Auth. v. Huyatin, 40 Colo. App. 559, 562, 583 P.2d 

296, 299 (1978); see also City of Denver v. Quick, 108 Colo. 111, 

116-17, 113 P.2d 999, 1002 (1941) (concluding that an appraisal 

witness’s testimony in a condemnation case on comparable sales 

data was inadmissible hearsay evidence). The plain language of 

section 38-1-118 provides for the admission of testimony on the 
16

value of comparable sales in a condemnation case when (1) the 

witness personally examined the record of the recorded transfer of 

the subject property; and (2) the witness directly communicates

with the buyer or seller of that property to verify the amount of 

consideration. However, as discussed further below, nothing in the 

language of section 38-1-118 directly addresses the exclusion of 

evidence of comparable sales even though the section is not a 

vehicle for the admission of evidence of comparable sales unless the 

conditions are met.

¶ 32 A division of this court considered the admissibility of 

comparable sales that were not verified in compliance with section 

38-1-118. In Huyatin, the division found that four out of the 

appraiser’s six comparable sales were inadmissible because the 

appraiser did not personally verify the sale price with either the 

buyer or seller and the court’s decision to admit the unverified sales 

was reversible error. 40 Colo. App. at 562, 583 P.2d at 299. Thus, 

the division held that comparable sales not verified in compliance 

with section 38-1-118 are inadmissible hearsay evidence. See id. 

¶ 33 However, Huyatin was decided before the Colorado Rules of 

Evidence were adopted in 1979 and liberalized the admission of 
17

hearsay evidence. We must, therefore, determine whether the

hearsay exceptions under CRE 803 apply to the admission of 

comparable sales that were not verified in compliance with section 

38-1-118. We conclude, for two reasons, that the hearsay 

exceptions in the rules of evidence apply to the admission of real 

property values in a condemnation case.

¶ 34 First, hearsay is inadmissible except as provided by the rules 

of evidence or by statute. CRE 802. Thus, section 38-1-118 is not 

the only method of admitting comparable sales data. For example, 

CRE 803(8) provides that,

[u]nless the sources of information or other 

circumstances indicate lack of 

trustworthiness, [the admission of] records, 

reports, statements, or data compilations, in 

any form, of public offices or agencies, setting 

forth (A) the activities of the office or agency, or 

(B) matters observed pursuant to duty imposed 

by law as to which matters there was a duty to 

report [is permitted].

¶ 35 CRE 803(8) is, therefore, a subsequently adopted independent 

and alternative method to section 38-1-118 for the admission of 

hearsay evidence. See Margenau v. Bowlin, 12 P.3d 1214, 1217 

(Colo. App. 2000) (finding C.R.C.P. 32 as another method for 

admitting deposition testimony in addition to former testimony 
18

exception to the rule against hearsay). Where, as here, a witness’s 

testimony on the value of real property is based on public records 

from an agency that has a duty to record and report transfers of a 

real property, evidence of the value of that property is admissible 

under CRE 803(8).

¶ 36 Second, “[w]e acknowledge that in the event of a conflict 

between a statute concerning a matter of substantive import and a 

rule of evidence, the statute will prevail over the rule.” Montoya v. 

People, 740 P.2d 992, 996 (Colo. 1987); see also Town of Red Cliff v. 

Reider, 851 P.2d 282, 284 (Colo. App. 1993) (“[T]o the extent that 

the statutory procedures [in eminent domain proceedings] differ 

from the procedures under the civil rules, the statute, not the rules, 

govern [sic].”). However, we do not read section 38-1-118 and CRE 

803(8) as conflicting with each other. 

¶ 37 Nothing in section 38-1-118 directly precludes the admission 

of evidence. Section 38-1-118 does not provide that the evidence is 

admissible only if the witness has personally examined the record 

and communicated with the buyer or seller to verify the amount of 

the sale. Nor does section 38-1-118 provide that it is the exclusive 

method of admitting evidence of comparable sales. Rather, similar 
19

to the hearsay exceptions under the rules of evidence, the statute 

provides for the admission of evidence that might otherwise be 

inadmissible hearsay. Thus, we conclude from the plain language 

that the General Assembly did not intend for section 38-1-118 to 

have preclusive effect notwithstanding an alternative method of 

introducing evidence of comparable sales.

¶ 38 CORE contends, however, that CRE 1101(e) precludes the 

application of the rules of evidence to admit evidence of comparable 

sales. Under CRE 1101(e), the Colorado Rules of Evidence apply in 

special statutory proceedings to the extent that matters of evidence 

are not provided for in the statute governing procedures in the 

statutory proceeding. In cases applying CRE 1101(e), our supreme 

court has found that rule pertains only to the extent that the rules 

of evidence are in conflict with the statutory proceedings. See 

Pruett v. Barry, 696 P.2d 789, 794 (Colo. 1985) (The rules of 

evidence “apply in ‘special statutory proceedings’ . . . to the extent 

that they are not in conflict with statutory requirements for such 

proceedings.”) (emphasis added). Further, a division of this court

applied CRE 1101(e) because a statutory provision explicitly

prohibited the admission of evidence. See Uptain v. Huntington Lab, 
20

Inc., 685 P.2d 218, 221 (Colo. App. 1984) (“The Colorado Rules of 

Evidence, however, are not applicable if there is a specific statutory 

provision under a special statutory proceeding in effect which 

prohibits the admission of evidence.”) (emphasis added), aff’d, 723 

P.2d 1322 (Colo. 1986). We have concluded, for the reasons stated 

above, that CRE 803(8) and section 38-1-118 are not in conflict 

with each other and that section 38-1-118 does not directly prohibit 

the admission of evidence.

¶ 39 Accordingly, we conclude that the trial court erred by 

excluding evidence of the comparable sales that Owen did not 

directly verify with the buyer or seller based on its erroneous

finding that comparable sales data in a condemnation case are only 

admissible under section 38-1-118. 

C. Harmless Error

¶ 40 Having concluded that the trial court erred by excluding the 

unverified comparable sales, we must determine whether the error 

warrants reversal. We conclude that it does not.

¶ 41 We review errors in evidentiary rulings in civil cases for 

harmless error. C.R.C.P. 61. Under this standard, we will not 

disturb a judgment unless a court’s error affected the substantial 
21

rights of the parties. Id. An error affects a substantial right only if 

“it can be said with fair assurance that the error substantially 

influenced the outcome of the case or impaired the basic fairness of 

the trial itself.” Bly, 241 P.3d at 535 (quoting Banek v. Thomas, 

733 P.2d 1171, 1178 (Colo. 1987)).

¶ 42 Freund contends that the exclusion of the unverified 

comparable sales was not harmless because Owen’s credibility was 

diluted. However, based on the record before us, we conclude that 

the exclusion of this evidence did not substantially influence the 

outcome of the case. 

¶ 43 Owen, like the other appraisers, testified about his experience 

and qualifications as an appraiser and he was qualified as an expert 

in appraisal work. Both Owen and Foster used the comparable 

sales method but they arrived at different per-acre values. The jury

awarded Freund $33,300 for compensation of the condemned 

property. The award matches Foster’s estimated value for 

compensation of the condemned property, which was based on a 

higher per-acre value than Owen’s estimated value. Thus, it does 

not appear that excluding comparable sales offered to support 
22

Owen’s estimated value of the condemned property disadvantaged 

Freund.

¶ 44 In addition, the jury heard testimony from both Foster and 

Owen about the percentage of lost value to the condemned 

property. Owen disagreed with Foster’s 50% loss of value and 

opined that the condemned property lost 100% of its value even 

though, as he acknowledged, Freund could still use the condemned 

property because the nonexclusive easement was located within the 

county’s building setback. It is doubtful the excluded comparable 

sales would have bolstered Owen’s opinion about the percentage 

loss of value.

¶ 45 Finally, Foster and Earley opined that there were no damages

to the residue, while Owen believed that the biggest impact of the 

condemnation was on the residue. The jury’s award of $50,000 in

damages to the residue suggests Owen’s opinion that there was 

damage to the residue was persuasive. 

¶ 46 Under these circumstances, we conclude that the trial court’s 

evidentiary error was harmless.

IV. Conclusion

¶ 47 The judgment is affirmed.
23

JUDGE FOX and JUDGE GOMEZ concur.