Board of County Com'rs of Sedgwick County v. Willard J. Kiser Living Trust, 65941

Decision Date17 January 1992
Docket NumberNo. 65941,65941
Citation825 P.2d 130,250 Kan. 84
PartiesBOARD OF COUNTY COMMISSIONERS OF SEDGWICK COUNTY, Kansas, Appellant, v. WILLARD J. KISER LIVING TRUST, et al., Appellee.
CourtKansas Supreme Court

Syllabus by the Court

1. When a valid appeal is taken by a party from an appraiser's award in a condemnation action, K.S.A. 26-508 places the other parties in the position of cross-appellants, and the appeal cannot be dismissed over the objection of any party having an interest in the tract.

2. In a condemnation case, a landowner is not entitled to have the value of the land enhanced merely by the result of the public improvement. The property owner should neither be penalized for nor benefited by any deflationary or inflationary effect of the nature of the improvement itself.

3. In determining valuation in a condemnation proceeding, absent comparable sales to support the market data approach, one of the other methods of valuation--the development approach or the cost approach, or both--must be used.

4. In determining valuation in a condemnation proceeding, the cost approach is based upon what it would cost to acquire the land and to build equivalent improvements less depreciation.

5. K.S.A. 26-513(d) lists factors to be considered in condemnation actions in determining compensation and damages. Factor one is: "The most advantageous use to which the property is reasonably adaptable."

6. In arriving at the market value of the land and interest taken in a condemnation action, all of the possible uses to which the land could have been put should be considered, including the best and most advantageous use to which the property was reasonably adaptable; considerations must not be speculative, conjectural, or remote. The uses which may be considered must have been so reasonably probable as to have had an effect on the market value of the land at the time of the taking.

7. The pretrial order controls the subsequent course of the trial, unless modified by the court to prevent manifest injustice. K.S.A.1990 Supp. 60-216. The trial court has broad discretion in admitting or excluding testimony of witnesses not specified in the pretrial order.

8. Normally, issues not raised before the trial court may not be raised on appeal. However, there is an exception to the rule when the issue is a question of law which may be decided on established facts.

9. K.S.A. 60-456(b) vests the trial court with authority to limit an expert's opinion testimony. Admission of expert testimony lies within the sound discretion of the trial court, and its ruling thereon will not be disturbed on appeal absent an abuse of discretion.

10. In a condemnation action, although the issue of highest and best use relates to value, it does not follow under the facts of this case that, because an expert's opinion as to value is inadmissible, the expert's opinion as to highest and best use should also be excluded.

11. By the clear terms of K.S.A. 26-509, the landowner may be allowed attorney fees only if the jury renders a verdict in an amount greater than the appraisers' award. However, to differentiate between a jury trial and a trial to the court, in the attorney fees context, does not have the support of policy or logic. The purpose of the statute is to compensate the landowner for defending against the condemner's appeal. The legislature did not intend to limit a landowner's award of attorney fees to jury trials. In a bench trial, resulting from an appeal by the condemner, attorney fees may be awarded to a landowner under K.S.A. 26-509 if the judgment for the landowner is in an amount greater than the appraisers' award.

Geary N. Gorup of The Law Offices of Leslie F. Hulnick, P.A., Wichita, argued the cause and was on the brief, for appellant.

Phillip Mellor of Mellor & Miller, P.A., Wichita, argued the cause, and William P. Higgins, Arden P. Miller, and Mark Mellor of the same firm, were with him on the brief, for appellee.

SIX, Justice:

This is a condemnation action. The Board of County Commissioners of Sedgwick County, Kansas, (the County) the condemner, appealed the appraisers' award of $481,525 for a partial taking to the district court under K.S.A. 26-508. Following a trial to the court, Stephen L. Clark, the landowner, was awarded compensation in the amount of $2,858,300. The deficiency judgment in favor of Clark is $2,376,775 plus interest. The district court awarded Clark attorney fees under K.S.A. 26-509 in an amount equaling 40% of the deficiency judgment, including interest. The County appeals.

Jurisdiction is based on our granting Clark's motion to transfer under K.S.A. 20-3017.

The County asserts numerous errors on appeal. We reverse on two primary rulings of the trial court. We hold that the County's expert, Reg Cordry, should have been permitted to testify as to market value, and that both Cordry and Norman Albright, also an expert for the County, should have been permitted to testify as to highest and best use. Other rulings of the trial court affected by reversal of these two primary rulings are discussed in the opinion.

We vacate the judgment and remand to the trial court to hear the testimony of Cordry as to market value, and both Cordry and Albright as to highest and best use. We do not remand for a new trial on all issues. It is not intended that the trial court rehear the current record. The case was tried to the court because the parties waived a jury trial. The trial court is to consider the testimony of the County's experts, together with the current record, and then enter judgment as to value and, if appropriate, attorney fees.

Facts

The subject property, 78.5 acres of land improved with a single family residence, is located outside the city limits of Wichita. Clark and his wife purchased the property with the intent of building a home, which was to set the tone for a proposed upscale residential development. The Clarks began planning the residence in 1983, commenced construction in September or October 1985, and moved into the 9,000-square-foot residence in December 1987.

The property was zoned "R-1," suburban residential district. The proposed development required zoning for "AA," single family dwelling district. In 1987, Clark filed an application for subdivision approval with a sketch plat and a request for the zoning change. On February 18, 1988, the Wichita-Sedgwick County Metropolitan Area Planning Commission (MAPC) unanimously recommended approval of the zoning change subject to platting the property within two years. The County approved the zoning change contingent on completion of the plat within two years.

Clark received an offer of $170,525 from the County to purchase a 13.164-acre right-of-way and a 37.246-acre remnant for the construction of the "K-96 Expressway," a/k/a the "Northeast Circumferential," a/k/a the "John Sedgwick Highway." Clark did not accept the offer. The County filed a petition for eminent domain. Tract # 26 in the eminent domain action was a 13.164-acre diagonal right-of-way which cut the remainder of Clark's tract into two parcels, one lying southwest of the right-of-way containing 37.272 acres and the other northeast of the right-of-way containing 28.064 acres. The 37.272-acre remainder has no access. The 28.064-acre remainder includes Clark's residence on 5.74 acres.

The case caption of the present action was taken from the original petition for eminent domain. The Willard J. Kiser Living Trust was the owner of one of the other tracts. Clark is the only landowner involved in this appeal.

The amended report of appraisers determined the value of Clark's property to be $1,321,420 before the taking and $839,895 after the taking for a total award of $481,525. The district court approved the appraisers' amended report. The County paid the appraisers' award to the court and it was disbursed to Clark.

The parties stipulated that the date of the taking was April 19, 1989.

Clark filed a notice of appeal from the appraisers' award. The appeal was docketed as case No. 89 C 1425. On the same day, the County filed its notice of appeal. The County's appeal was docketed as case No. 89 C 1438.

Both of the appeals were before the trial court for a discovery conference. At that conference the court noted that an order of dismissal would be filed in case No. 89 C 1425, Clark's appeal. The County's appeal, case No. 89 C 1438, was to go forward for a pretrial conference. The discovery conference order in the County's case was approved by both parties; however, the trial judge did not sign the order. The appearance docket confirms the action taken in the order. Clark's appeal, case No. 89 C 1425, was dismissed for lack of prosecution. The case at bar proceeded as the County's appeal.

The County filed a motion to dismiss its appeal. The County alleged that its expert appraiser, upon whom the County relied in filing its appeal, was not willing to testify in court. The County asserted that it was attempting to mitigate damages in the event it lost the appeal because Clark may be entitled to attorney fees. Under K.S.A. 26-509, attorney fees are allowed only if the landowner is successful under the County's appeal. Clark objected to the dismissal, arguing that the court did not have the power to dismiss the appeal without his consent, which he withheld. The trial court agreed with Clark and denied the County's motion to dismiss its appeal.

Clark filed a motion in limine to prevent the County from presenting evidence of his foreknowledge of the proposed highway route. Clark argued that the matter was irrelevant as to the issue of the values before and after the taking because a governmental entity may not set aside a highway corridor to limit a landowner's use, thereby depressing the value of the property before the actual taking. The County countered that evidence of foreknowledge is relevant as to mitigation of damages. According to the County, the trier of fact should be...

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9 cases
  • Johnson v. Westhoff Sand Co., Inc.
    • United States
    • Kansas Supreme Court
    • 9 Junio 2006
    ...involves a condemnation statute. It argues that an exception exists in condemnation cases, citing Board of Sedgwick County Comm'rs v. Kiser Living Trust, 250 Kan. 84, 107, 825 P.2d 130 (1992), which "Usually a trial court may not consider a contingent fee contract in determining the amount ......
  • Manhattan Ice & Cold Storage, Inc. v. City of Manhattan
    • United States
    • Kansas Supreme Court
    • 23 Marzo 2012
    ...fact, may be sufficient to qualify an expert and to supply a partial basis for his opinion.’ ”); Board of Sedgwick County Comm'rs v. Kiser Living Trust, 250 Kan. 84, 96, 825 P.2d 130 (1992) (“[O]nce a witness has qualified as an expert, a court cannot regulate the factors used or the mental......
  • Jones v. Hansen
    • United States
    • Kansas Supreme Court
    • 21 Enero 1994
    ...an exception when the issue raised is a question of law that may be decided on established facts. See Board of Sedgwick County Comm'rs v. Kiser Living Trust, 250 Kan. 84, Syl. p 8, 825 P.2d 130 (1992). The issue argued before the trial court in this case fits within that exception because i......
  • City of Harligen v. Estate of Sharboneau
    • United States
    • Texas Supreme Court
    • 17 Mayo 2001
    ...court has even held that the subdivision development method is identical to the classic income approach. Board of County Comm'rs v. Kiser Living Trust, 825 P.2d 130, 137 (Kan. 1992). However, we believe that the subdivision development method is distinct from both comparable sales analysis ......
  • Request a trial to view additional results
1 books & journal articles
  • Coping With Ed (eminent Domain)
    • United States
    • Kansas Bar Association KBA Bar Journal No. 82-5, May 2013
    • Invalid date
    ...Comm’n, 198 Kan. 671, 676, 426 P.2d 138, 142-43 (1967). [88] Bd. of County Comm’rs of Sedgwick County v. Willard J. Kiser Living Trust, 250 Kan. 84, 91, 825 P.2d 130, 137 (1992), citing Miller, 200 Kan. 651, 653, 438 P.2d 53 (1968). [89] K.S.A. 2012 Supp. 26-508(a). [90] Id.; City of Wichit......

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