State ex rel. Missouri Highway & Transp. Com'n v. Edelen, 63044

Citation872 S.W.2d 551
Decision Date15 February 1994
Docket NumberNo. 63044,63044
PartiesSTATE of Missouri, ex rel. MISSOURI HIGHWAY & TRANSPORTATION COMMISSION, Plaintiff/Respondent, v. Harry EDELEN, et al., Exceptions of Select Properties, Defendants/Appellants.
CourtCourt of Appeal of Missouri (US)

Marvin Max Klamen, Donna Aronoff Smith, St. Louis, for defendants-appellants.

Philip Edward Morgan, Jr., St. Louis, for plaintiff-respondent.

CARL R. GAERTNER, Judge.

Defendant, Select Properties (Select), appeals from a judgment entered on a jury verdict awarding the corporation $600,000 for the condemnation of a portion of its property by the Missouri Highway and Transportation Commission (Commission).

Select's property, a 9.65-acre parcel located in the southwest quadrant of the intersection of Interstate Highway 270 and Missouri Bottom Road in St. Louis County, fronts I-270 along its west-by-northwest border and Missouri Bottom Road along its north-by-northeast border. The land was zoned industrial but remained vacant from the time Select acquired it in the late 1960s until the date of taking.

There was no direct egress from I-270 to Missouri Bottom Road or access from Missouri Bottom Road to I-270. On June 23, 1989, the Commission filed a condemnation petition to take various land parcels, including a portion of Select's property, to improve the traffic flow at I-270 and Missouri Bottom Road. The Commission planned to widen Missouri Bottom Road, to provide an access ramp from Missouri Bottom Road to the southbound lanes of I-270, and to build a directional interchange from Route 115 to I-270 west of Select's property and thereby provide egress from the northbound lanes of I-270 to Missouri Bottom Road. In accord with its plan, the Commission sought to take 206,065 square feet of Select's property.

On November 6, 1989, the Commission filed its Second Amended Petition in which it changed the amount of Select's property to be taken to 256,699 square feet. On January 18, 1990, the commissioners appointed by the court returned an award of $744,319.25 for Select. Both parties filed exceptions and requested a jury trial. The jury returned a verdict on July 31, 1992, awarding Select $600,000 for the taking, and the trial court entered judgment in accord with the verdict.

I.

In its first point, Select claims the trial court erred in refusing to give the jury MAI 34.03, which Select requested.

The Commission's expert witness, Thomas Garnett, testified that the remaining parcel of Select's land increased in value after the taking because the ensuing highway project would provide Select direct access to and egress from I-270, which changed the land's highest and best use from industrial to commercial applications. Select argues that the increased access and egress did not accrue only to Select's property; therefore, the trial court erred in failing to give 34.03 to prevent the jury from considering this evidence of a general benefit as an offset against Select's damages.

It is error to refuse to give 34.03 when requested by defendants in a partial condemnation proceeding regardless of whether there is evidence of general benefits. State ex rel. Hwy. & Transp. Com'n v. Jim Lynch Toyota, 830 S.W.2d 481, 488-89 (Mo.App.1992); State ex rel. State Hwy. Com'n v. Recker, 648 S.W.2d 568, 570 (Mo.App.1983). The trial court, therefore, erred in refusing Select's request to give MAI 34.03. Our inquiry, however, does not end here. Rule 70.02(c) requires a determination of whether this error was prejudicial. Jim Lynch Toyota 830 S.W.2d at 489.

It is well-settled that in a partial condemnation case the condemnor may set off the landowner's damages with evidence of special benefits to the remainder of the property, but general benefits may not be set off. A special benefit is one that accrues directly and proximately to the particular land remaining after a partial taking, reflecting an increase in the market value of the remainder. General benefits, on the other hand, accrue to all properties within the usable range of the public work. State ex rel. State Hwy. Com'n v. Tate, 592 S.W.2d 777, 778-79 (Mo. banc 1980); State ex rel. State Hwy. Com'n v. Koziatek, 639 S.W.2d 86, 88 (Mo.App.1982); State ex rel. State Hwy. Com'n v. Gatson, 617 S.W.2d 80, 82 (Mo.App.1981).

The quintessential example of a special benefit is when highway construction improves the highest and best use of the landowner's remaining property. Tate, 592 S.W.2d at 779-80 (Mo. banc 1980); Koziatek, 639 S.W.2d at 88. The Commission presented evidence of an improvement in the highest and best use of Select's land due to the highway construction. We find no resulting prejudice from the trial court's failure to give MAI 34.03. Point denied.

II.

Select next argues the trial court erred in denying its motion in limine to preclude or strike Garnett's testimony because his valuation opinion was speculative and based on inadmissible evidence of general benefits.

The Commission clearly established Garnett's qualifications to testify as an expert real estate appraiser. Garnett then testified that he appraised the land using the market data, or comparable sales, method because Select's land was undeveloped. See State ex rel. State Hwy. Com'n v. Graeler, 527 S.W.2d 421, 425-26 (Mo.App.1975). He testified that the highest and best use of Select's property before the condemnation was industrial and should be valued at $1.50 per square foot when compared with similar industrial property. He then testified that the condemnation changed the property's highest and best use to commercial applications and should be valued at $2 per square foot when compared to the sale of similar land tracts. Using these figures, Garnett calculated that the property should be valued at $630,700 before the taking and $328,440 after the taking, leaving Select $302,260 in compensation for the condemnation. 1

Select claims that Garnett's opinion was speculative and thus inadmissible because: (1) he failed to conduct a standard written appraisal with written supporting data quantifying and distinguishing the factors he examined in arriving at his valuation opinion; (2) his land measurements did not match the figures in the Commission's petition; (3) he failed to consider all of the factors set forth by the American Institute of Real Estate Appraisers; (4) he failed to consider as a comparable sale the sale of a land parcel directly across the street from Select's property; and (5) he failed to consider and quantify the reasonable cost of rezoning the remainder of Select's land. Select further claims Garnett relied on inadmissible evidence of general benefits in valuing the remainder of Select's property. Having already determined that Garnett relied on evidence of a special benefit, we do not need to consider this portion of Select's second point.

The admission or exclusion of evidence in condemnation cases is within the discretion of the trial court, and errors in the court's determination will not result in reversal unless there is substantial or glaring injustice. State ex rel. Hwy. & Transp. Com'n v. Kuhlmann, 830 S.W.2d 569, 571 (Mo.App.1992); Del-Mar Redevelopment Corp. v. Associated Garages, 726 S.W.2d 866, 869 (Mo.App.1987). The admissibility of evidence in such cases depends on whether it tends to help the jury in resolving the issue of value and damages. State ex rel. State Hwy. Com'n v. Texaco, Inc., 502 S.W.2d 284, 288 (Mo.1973). An expert opinion of the value of real property must be based upon substantial data, not mere conjecture, speculation or unwarranted assumption. The opinion must have a rational foundation. State ex rel. Mo. Hwy. & Transp. Com'n v. Modern Tractor and Supply Co., 839 S.W.2d 642, 648 (Mo.App.1992).

We note from the outset that such an expert is not required to conduct a written appraisal, to provide written supporting data, to quantify the factors he used in arriving at his valuation opinion, or to analyze the factors set forth by the American Institute of Real Estate Appraisers.

In his testimony, Garnett clarified how the comparable sales approach operates and why he chose this valuation method. In determining the land's highest and best use before and after the condemnation, he considered the land's zoning, the change in access to and egress from I-270, the development of a commercial project in the vicinity, and the development of commercial property near similar interchanges in St. Louis County. He chose comparable sales of property located near Select's land involving the same type of land use. Garnett testified to the specific features of each comparable property and indicated that after determining the range of prices generated by the sale of these properties he analyzed each one's location, size, shape, access to thoroughfares, and topography, which he compared with Select's property before determining what price within the range he should assign to Select's parcel.

Although Garnett offered measurements which deviated from the Commission's figures by 453 square feet, he clarified that at the time of his appraisal there was confusion between the parties regarding the land measurements, which prompted him to calculate his own figures after talking to various people, visiting the site and viewing documents.

Furthermore, Garnett offered a rational explanation and supporting data for his refusal to consider as a comparable sale the sale of an Emerson Electric Company land parcel directly across the street from Select's property. Garnett testified that this sale was not an arm's-length transaction because it involved interrelated companies and it was a unique real estate transaction because various land parcels were exchanged, rendering the transaction unsuitable for use as a comparable sale.

Finally, Garnett testified that he was aware...

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