Acquisition of Property by Eminent Domain, Matter of

• Court: Kansas Supreme Court
• Writing for the Court: LOCKETT
• Citation: Acquisition of Property by Eminent Domain, Matter of, 690 P.2d 1375, 236 Kan. 417 (Kan. 1984)
• Decision Date: 30 November 1984
• Docket Number: No. 56724,56724
• Parties: In the Matter of the ACQUISITION OF PROPERTY BY EMINENT DOMAIN. The CITY OF OTTAWA, Kansas, a municipal corporation, Appellant, v. Frederick Junior HEATHMAN, et al., Appellees.

Page 1375

690 P.2d 1375

236 Kan. 417

In the Matter of the ACQUISITION OF PROPERTY BY EMINENT DOMAIN The CITY OF OTTAWA, Kansas, a municipal corporation, Appellant, v. Frederick Junior HEATHMAN, et al., Appellees.

No. 56724.

Supreme Court of Kansas.

Nov. 30, 1984.

Syllabus by the Court

1. The granting of a motion for new trial rests in the judicial discretion of the trial court. The order granting or refusing the motion for a new trial will not be reversed by an appellate court unless a clear abuse of discretion is shown.

2. A new trial may be ordered when it is evident the jury has not followed the court's instructions.

3. There are certain formalities of conduct which a jury is required to follow. The jury's failure to obey these essential formalities of conduct can invalidate its verdict. Evidence may be offered in such cases to impeach a verdict when the evidence will show actions of the jurors by which they have intentionally disregarded the court's instructions or violated one or more of the essential formalities of proper jury conduct.

John L. Richeson, of Anderson, Byrd & Richeson, Ottawa, argued the cause and was on the brief, for appellant.

Eugene C. Riling, of Riling, Norwood, Burkhead & Fairchild, Chartered, Lawrence, argued the cause and was on the brief, for appellees.

LOCKETT, Justice:

This is an appeal by the condemnor in a condemnation action from an order granting a new trial to the landowner.

The City of Ottawa, Kansas (the City), filed an appeal of an appraiser's award for land in Ottawa owned by Frederick Junior and Mildred L. Heathman (Heathmans), which was condemned for a permanent construction easement. Trial was held and a verdict reached on August 31, 1983. The jury instruction given by the trial court for determining the Heathmans' damages for the City's taking of their land was:

"The measure of compensation for an easement is the difference between the market value of the entire tract immediately before the taking and the market value of the tract burdened with the easement immediately after the taking. [PIK Civ.2d 11.08.]

"In other words, you should arrive at the total compensation due the landowner as follows:

"First, you should determine the market value of the entire property immediately before the taking.

"Second, you should determine the market value of the entire property immediately after the taking of the easement and part of the access.

"Third, you should determine the difference between the two amounts by subtracting the second from the first, which difference will be the amount of your award."

The six member jury returned a verdict of $42,233.00 as damages for the partial taking by the condemnor. The jury found the value of the property before the taking was $120,000.00 and the value after the easement was taken as $77,767.00.

The landowners filed a motion for a new trial on September 6, 1983, claiming among other things that "the jury arbitrarily ignored the proven elements of damages and the Court's instructions." In support of the motion for a new trial, the Heathmans attached an affidavit of one of the jurors. The affidavit stated:

"That this affiant was a member of the jury panel selected to hear and decide the case of City of Ottawa, Kansas v. Heathman, Case No. 82 C 342.

"That after the foreman, Roger Bush, had been selected, there was much confusion by the jury members as to how they were to determine the damages. There were a few figures discussed. There was little discussion by the jury panel regarding the comparable sales used in the trial.

"Many of the jury members expressed doubts as to arriving at before value of the Heathman tract and the after value. Mr. Bush first suggested that they all decide what the damages were first, and then he could handle the problems of the before and after value of the Heathman tract on the verdict form. The jury members agreed that they would each put down on an individual piece of paper what they felt the damages were to the Heathman property. Those individual figures would be added and totalled, divided by six, and those were the damages they would be bound by. This was done and the figure of $42,233.00 was arrived at. Mr. Bush then suggested the figure of $120,000.00 being the before value of the Heathman property. This was the first time this figure had been mentioned and no one disagreed, nor discussed it. Mr. Bush put the $120,000.00 on the verdict form, subtracted the damages of $42,233.00 to arrive at the $77,767.00 after value, and then put the damages of $42,233.00 as had been previously agreed to on the verdict form. The $77,767.00 after value was never discussed by the jury and was merely the result of Mr. Bush's computations in figuring after the damages had been arrived at, with the figure of $120,000.00 suggested by Mr. Bush. This was how the verdict was arrived at."

All six members of the jury were called to testify at a hearing on the motion on October 6, 1983. The court separately questioned each juror, then allowed the attorneys to ask questions of the jurors. Each juror testified that they wrote on separate slips of paper the amount he or she though should be awarded Heathman in damages. The amounts the jurors had written on the slips of paper were then added together, the total divided by six, and then rounded off to the nearest dollar, resulting in the figure of $42,233.00. Four jurors testified there had been no agreement in advance by the jury to be bound by the final figure. Two jurors thought there had been a prior agreement to be bound by the figure. All jurors agreed without any discussion to use the amount the jury foreman, Roger Bush, suggested of $120,000.00 for the value before the taking. The final figure, the value after the taking, was determined by subtracting $42,233.00 from the $120,000.00 figure.

On October 12, 1983, the district court granted a motion for a new trial because the jury had failed to follow the court's instruction for determining damages. The City's October 21, 1983, motion seeking a reconsideration of the court's order for a new trial was denied on November 2, 1983. A new trial was held in February, 1984, and the jury, after receiving similar instructions from the trial court, found the value of the property before the taking to be $150,000.00, the value after the taking to be $80,000.00, and determined the amount of damages suffered by the Heathmans to be $70,000.00.

The City claims the trial court abused its discretion when it granted Heathman a new trial. The granting of a motion for new trial rests in the judicial discretion of the trial court. The order granting or refusing the motion for a new trial will not be reversed by an appellate court unless a clear abuse of discretion is shown. State v. Goering, 225 Kan. 755, 759, 594 P.2d 194 (1979). The grounds for granting a new trial are delineated in K.S.A. 60-259, which states in part:

"(a) Grounds. A new trial may be granted to all or any of the parties and on all or part of the issues when it appears that the rights of the party are substantially affected:

"First. Because of abuse of discretion of the court, misconduct of the jury or party, or accident or surprise which ordinary prudence could not have guarded against, or for any other cause whereby the party was not afforded a reasonable opportunity to present his evidence and be heard on the merits of the case."

To determine if the trial court abused its discretion, we must first decide whether under the facts of the case a juror's affidavit can be used to impeach the jury verdict.

The district court, in its memorandum opinion granting the landowners' motion for a new trial, found that the verdict was not contrary to the evidence, and that the jury did not reach a quotient verdict. The court did find that the jury failed to follow its instruction as to the method for determining damages and in doing so acted contrary to the law for condemnation cases.

Plaintiffs argue that it is impermissible for the court to consider the mental processes of the jury in determining how the jury arrived at its verdict and that the statutes do not mandate the order the jury must follow to determine land values and damages for a partial taking. The defendants, on the other hand, argue that the jury's failure to follow the court's instruction as to how damages are to be determined was reversible error.

It is a long established and generally accepted doctrine that testimony or affidavits of jurors impeaching their verdict will not be received where it is not evident that the jury had acted in contravention of the court's instructions and of the evidence. This protection is to insure that the mental process of a juror in reaching a verdict or the factors which influenced the mental process cannot be inquired into for the purpose of impeaching a verdict. The right to inquire into the jury's basis for reaching a verdict would open the door to the most severely harmful methods for tampering with jurors and would allow a dissatisfied or corrupted juror to destroy a verdict to which that juror had given his assent under sanction of the juror's oath. Jurors are to be afforded the right to have private, frank and free discussions of the questions under consideration.

However, since the jurors operate as a unit, public policy demands that misconduct insofar as possible be discouraged. Courts, therefore, have allowed inquiry into physical matters and misconduct which come to the attention of other members of the jury panel and may be verified or denied.

The general rule against allowing jurors to impeach their verdict has been modified in some jurisdictions by statute. In Kansas, statutes allow admission of evidence to test a verdict. K.S.A. 60-441 and 60-444(a) set forth the method of testing a jury's verdict.

K.S.A. 60-441 states:

"Upon an inquiry as to the validity of a verdict or an indictment no evidence shall be received to show the effect of...