State ex rel. Missouri Highway and Transp. Com'n v. Anderson, 68446

• Decision Date: 14 July 1987
• Docket Number: No. 68446,68446
• Citation: 735 S.W.2d 350
• Parties: STATE ex rel. MISSOURI HIGHWAY AND TRANSPORTATION COMMISSION, Relator, v. The Honorable David ANDERSON, Judge of the Circuit Court of Greene County, Missouri, Respondent.
• Court: Missouri Supreme Court

Page 350

735 S.W.2d 350

STATE ex rel. MISSOURI HIGHWAY AND TRANSPORTATION COMMISSION, Relator, v. The Honorable David ANDERSON, Judge of the Circuit Court of Greene County, Missouri, Respondent.

No. 68446.

Supreme Court of Missouri En Banc.

July 14, 1987.

Rehearing Denied Sept. 15, 1987.

John H. Gladden, Judy Curran, Asst. Counsels, Bruce A. Ring, Chief Counsel, Springfield, for relator.

Phillip R. Garrison, Springfield, for respondent.

WELLIVER, Judge.

Relator, the Missouri Highway and Transportation Commission seeks writs of prohibition and mandamus directed at prohibiting Greene County Circuit Judge Anderson from issuing two subpoenas duces tecum to relator's two land appraisers. ¹ The Court of Appeals, Southern District, issued preliminary writs which were quashed by opinion. We transferred the case to examine the existing law. Mo. Const. art. V, § 10. We make the alternative writ of mandamus peremptory and the preliminary writ of prohibition absolute. We have borrowed extensively from the dissenting opinion filed by Flanigan, J., in the Court of Appeals, Southern District.

I

This case stems from relator's March 30, 1984, petition to condemn land owned by South Springfield Farm, Ronald K. Stenger, Neil K. Stenger, and Springfield Land Company. The land is sought by relator as a part of a highway project utilizing federal funds.

On May 4, 1984, the owners filed motions to dismiss and for an evidentiary hearing on the jurisdictional phase of the condemnation. On February 27, 1985, the owners filed Notice to Take Depositions and a Motion to Compel, both of which relator moved to quash. On March 5, 1985, the circuit court sustained the Motion to Quash. The owners sought writs of prohibition and mandamus which the Court of Appeals, Southern District, and this Court denied.

On April 3, 1985, the circuit court, at the request of the owners, issued subpoenas duces tecum to two of relator's appraisers, Mr. Les Sage and Mr. Jack Bennett. The subpoenas directed Sage and Bennett to produce all notes, memoranda, summaries, or written documents which they had used in making their precondemnation appraisals for the relator. On April 4, 1985, relator moved to quash the subpoenas. On April 5, respondent, Judge Anderson, overruled the Motion To Quash the subpoenas duces tecum.

Relator sought and obtained in the Court of Appeals, Southern District, the Alternative Writ of Mandamus and the Preliminary Writ of Prohibition, both later quashed by opinion. We transferred.

II

The landowners, through the respondent circuit judge, base their right to have the subpoenas duces tecum issued on two grounds: (1) that the owners of the condemned property are entitled to question and contest the court's jurisdiction to proceed further in the underlying condemnation action by contesting whether relator has complied with the prerequisites imposed by State ex rel. Weatherby Advertising v. Conley, 527 S.W.2d 334 (Mo. banc 1975), and that the materials sought by the subpoenas are necessary for that purpose; and (2) that since State ex rel. State Highway Commission v. Jensen, 362 S.W.2d 568 (Mo. banc 1962), the work product privilege has been abrogated by Rule 56.01(b)(3), and that Rule 56.01(b)(4)(b) did not change the status of the documents sought in this case from work product, but rather provided a method whereby, under some circumstances, they would be subject to discovery.

For the reasons which follow, we conclude that neither ground is valid. We shall discuss the second ground first.

A

Condemnation under Missouri law contemplates a two-step procedure described and set forth in Chapter 523, RSMo 1986, ² and Rule 86. Both the statutes and our rule describe the procedure we have devised for balancing the right of government to appropriate private property for the use and benefit of the public against the right of every person to be fairly and fully compensated for the taking of the property for public use. Both the statutes and our rule contemplate a two-step process.

First, the court must determine whether the condemnation is authorized by law--i.e.: is there jurisdiction over the condemnation proceeding.... [H]as the condemning authority complied with the conditions precedent to bringing the action (State ex rel. Weatherby Advertising Co., Inc. v. Conley, 527 S.W.2d 334 (Mo. banc 1975))....

Secondly, the court must establish the landowner's damages from the taking. At that stage, commissioners are appointed to assess the landowner's damages and upon payment of the commissioners' award the condemning authority acquires the property and may proceed to utilize it as prayed in its petition for condemnation. Either party may request a jury trial to establish the landowner's damages and only after that trial has concluded is the case appealable.

State ex rel. Devanssay v. McGuire, 622 S.W.2d 323, 325 (Mo.App.1981).

This two-step process has an extremely important function. It guarantees to the public early commencement of the project while preserving to the individual landowners the right at a later date to extensively and thoroughly litigate all issues relating to damages for the taking. If the purpose of the condemnation is to build a road across Missouri from St. Louis to Kansas City, a single objecting landowner has no right to delay the commencement of the project for months or years by interrogatories, depositions, discovery or dilatory practices. The two-step process does not contemplate extensive litigation at the first stage which is prior to the order of condemnation. It is a hearing on the petition which Rule 86.04 requires to contain, among other things

a statement of the foundation of the plaintiff's right to condemn the property involved in the condemnation proceedings; a general statement of the nature of the business, improvement or use for which the property is to be taken; a statement either that the condemner or owner can not agree on the proper compensation to be paid or that an owner is incapable of contracting, is unknown, can not be found or is a non-resident of the state; if any right of way be sought, the location and general route thereof shall be described and a copy of the construction plans required by Section 227.050 of the Revised Statutes of Missouri, 1949, shall be filed in the circuit clerk's office and made a part of each condemnation petition by reference; ...

Rule 86.04.

We do not minimize the importance of the initial hearing, which is the one involved here. This hearing "is much more than a preliminary hearing on a pretrial motion." Washington University Medical Center v. Komen, 637 S.W.2d 51, 54 (Mo.App.1982). It is "an evidentiary hearing in which the right or power of the condemner to condemn the property in question is finally adjudicated." Washington University Medical Center v. Komen, 637 S.W.2d at 54. In State ex rel. State Highway Commission v. Dalton, 498 S.W.2d 801 (Mo. banc 1973), the trial court entered an order pertaining to discovery after the initial hearing had been held and before the issue of damages was tried to a jury. This Court recognized that "In the generally accepted sense, the trial of the basic action had not started at the time the challenged order was entered." Dalton, 498 S.W.2d at 802.

As a practical matter, the precise extent of the landowners' damage is the paramount issue only in the second stage. The damages are ascertained by determining the fair market value of the property "immediately before the taking." MAI 9.01. "Under our statutes and our condemnation cases, the taking of the property occurs when the condemner pays the commissioners' award into the registry of the court, or if it refuses to make such payment, as is true in this case, at the time of trial." State ex rel. Washington University v. Gaertner, 626 S.W.2d 373, 375 (Mo. banc 1982). In the instant case the "taking" has not yet occurred. The value of the property "immediately before the taking" cannot yet be ascertained. With respect to making appraisals of the landowners' property at the present time, the commission and the landowners are on equal footing. Each side is able to make its own appraisal without obtaining information from the other.

In State ex rel. Weatherby Advertising v. Conley, 527 S.W.2d 334, 336 (Mo. banc 1975), this Court said: "It is well established in Missouri that allegation and proof that the condemner and property owners have been unable to agree on compensation to be paid for the property being taken is jurisdictional." Weatherby, 527 S.W.2d at 336. Section 523.010 authorizes the filing of condemnation proceedings only where the condemner and the owners cannot agree upon the proper compensation to be paid. Weatherby, 527 S.W.2d at 336. The petition should allege enough to show that bona fide negotiations have occurred but that the parties were unable to arrive at a settlement. Weatherby, 527 S.W.2d at 336-37.

In City of Blue Springs v. Central Development, 684 S.W.2d 44 (Mo.App.1984), the court spoke of the "jurisdictional requirement that the condemner and property owner have been unable to agree on the compensation to be paid for the property being taken." 684 S.W.2d at 48. The court said,

[T]o satisfy the statutory requirements of § 523.010 RSMo the condemners' evidence must show that a valid offer was made by one party, usually the condemner, and rejected by the other.... Missouri case law indicates the relationship between the offer and the market value of the property to be condemned is not significant in the determination of good faith. An offer need not be a particular amount--merely sufficient to create a binding contract. See Note, Preliminary Requirements for Condemnation in Missouri: Necessity, Public Use, and Good Faith Negotiations, 44 Mo.L.Rev. 503, 511 (1979).

City of Blue Springs, 684 S.W.2d at 48-49.

The foregoing language, which we believe to be an accurate statement of the Missouri law, would indicate that the niceties of the...