City of Sioux Falls v. Johnson, s. 20336

• Decision Date: 03 February 1999
• Docket Number: 20359,Nos. 20336,s. 20336
• Citation: 588 N.W.2d 904,1999 SD 16
• Parties: CITY OF SIOUX FALLS, A municipality chartered under the Constitution of the State of South Dakota, Plaintiff and Appellant, v. Douglas L. JOHNSON and Sherry D. Johnson, Defendants and Appellees.
• Court: South Dakota Supreme Court

Page 904

588 N.W.2d 904

1999 SD 16

CITY OF SIOUX FALLS, A municipality chartered under the Constitution of the State of South Dakota Plaintiff and Appellant, v. Douglas L. JOHNSON and Sherry D. Johnson, Defendants and Appellees.

Nos. 20336, 20359.

Supreme Court of South Dakota.

Argued Oct. 20, 1998.

Decided Feb. 3, 1999.

R. Shawn Tornow, Chief Assistant City Attorney, Sioux Falls, for plaintiff and appellant.

Mark V. Meierhenry of Danforth, Meierhenry & Meierhenry, Sioux Falls, for defendants and appellees.

MILLER, Chief Justice.

¶1 Johnsons were awarded $1.2 million as just compensation for their condemned property. City filed motions for remittitur and a new trial. The trial court denied both motions and City appeals. We affirm in part and reverse and remand in part.

FACTS

¶2 On September 27, 1995, the City of Sioux Falls initiated an action to condemn three adjoining tracts of land owned by Doug and Sherry Johnson in Lincoln County, South Dakota. Condemnation of the property was necessary for a public right-of-way and an adjoining storm water drainage project. Johnsons' property, which included a house with a three-stall garage and a horse barn, consisted of 9.70 acres. The house, which contained an indoor swimming pool and gym, had approximately 5,000 square feet on the upper levels, and 2,000 square feet on the lower level. City estimated the fair market value of the property to be $423,000, and deposited that amount with the trial court.

¶3 On November 3, 1995, Johnsons stipulated that they would waive a hearing challenging the taking of their property. They then received the $423,000 that had been deposited with the court.

¶4 Everyone agreed that November 3, 1995, would be the date of taking. Nonetheless, Johnsons continued to occupy and possess the property until the fall of 1996. ¹ Once City received actual possession of the property, it deemed it necessary, in preparing the property for the planned projects, to remove the home from the property. City, unable to sell or otherwise remove the house, destroyed it by burning.

¶5 City received two fair market appraisals on the property. The two independent appraisals valued the property, as of the date of taking, at $432,000 and $495,000. ² At trial, an appraiser hired by Johnsons valued the property, as of the date of taking, at $540,000. Doug Johnson testified at trial that the property ranged in value from $1.6 million to $2.2 million. Sherry Johnson testified that the fair market value of the property was $3.1 million.

¶6 The jury returned a verdict for Johnsons, awarding them $1.2 million. City filed a motion for a new trial or remittitur. Both motions were denied.

¶7 On appeal, City raises the following issues:

1. Whether the trial court abused its discretion in failing to grant City's timely motion for a new trial.

2. Whether the trial court erred in denying City's motion for change of venue.

3. Whether the trial court committed reversible error by allowing Johnsons to testify and attribute additional value to the subject property based upon the "scope of the project."

4. Whether the trial court erred in refusing to give City's proposed instructions defining "speculation" and "conjecture."

5. Whether the trial court erred in failing to grant City's motion for remittitur in lieu of a new trial.

6. Whether the trial court erred in allowing prejudgment interest to be added to the judgment from the date of taking to the verdict.

DECISION

¶8 1. The trial court abused its discretion in denying City's motion for a new trial.

¶9 Our standard of review of a trial court's ruling on a motion for a new trial is well established.

"[A] motion for a new trial is addressed to the sound discretion of the trial court; we will not overturn the court's ruling unless it appears affirmatively from the record there has been an abuse of discretion." Robbins v. Buntrock, 1996 SD 84, p 16, 550 N.W.2d 422, 427 (citing Fullmer v. State Farm Ins. Co., 498 N.W.2d 357, 361 (S.D.1993); Enchanted World Doll Museum v. Buskohl, 398 N.W.2d 149, 153 (S.D.1986); Simmons v. City of Sioux Falls, 374 N.W.2d 631, 632 (S.D.1985)). "Additionally, this court has consistently stated that more deference is given to the trial court's grant of a new trial than to its denial of one[.]" Tunender v. Minnaert, 1997 SD 62, p 9, 563 N.W.2d 849, 851 (citations omitted). This is because orders allowing new trials "are not conclusive or decisive of any rights or issues.... They merely 'open the way for a reinvestigation of the entire case upon its facts and merits.' " Jensen v. Miller, 80 S.D. 384, 389, 124 N.W.2d 394, 396 (1963) (citation omitted).

Morrison v. Mineral Palace, 1998 SD 33, p 7, 576 N.W.2d 869, 870.

¶10 a. The trial court abused its discretion by allowing Doug

Johnson to testify to a range of values when

offering his opinion of the value of the

property.

¶11 City argues the trial court erred in allowing one of the former landowners, Doug Johnson, to testify as to a range of values for the property. City claims this testimony was speculative, conjectural, baseless, and highly prejudicial. We agree.

¶12 An agreed-upon sale of realty between a willing buyer and a willing seller is nothing more than a contract. As such, under SDCL 53-1-2(4), there must be consideration. We are aware of no contract for the sale of realty which calls for its consideration to be a "range of values" rather than a sum certain in exchange for the realty. While opinions may vary as to value during sale negotiations, if there is to be an ultimate sale, ranges disappear and the agreement is for a specific amount.

¶13 Generally, a landowner "is competent to express an opinion on the value of his property being condemned." City of Sioux Falls v. Kelley, 513 N.W.2d 97, 103 (S.D.1994) (citing 5 Nichols on Eminent Domain § 23.03 (1993)). The landowner is presumed to have "special knowledge of the property, its income producing capacity, and other pertinent traits sufficient to render an opinion as to value." State v. Spiry, 1996 SD 14, p 8, 543 N.W.2d 260, 262 (citing Kelley, 513 N.W.2d at 103). However, the landowner is subject to the same requirements as is an expert in giving an opinion on valuation.

[O]wners of realty are presumed to be acquainted with the value of their property and are allowed to testify to its value. However, they are held to the same rules concerning the measure of damages as expert witnesses. Where any witness testifies to improper elements of damages, it is proper for the trial court to strike that testimony.

State v. Henrikson, 1996 SD 62, p 20, 548 N.W.2d 806, 810-11 (internal citations omitted).

¶14 Here, Johnson has failed to show why he should not be bound to testify as to a sum certain. His own expert testified in that manner giving an opinion that the damages for the taking were $540,000. Johnson's wife also used a sum certain in testifying that, in her opinion, the loss was $3.1 million.

¶15 We find Johnson's methodology was improper. As such, the trial court abused its discretion by allowing the range of values testimony.

¶16 b. The trial court did not abuse its discretion by limiting

City's cross-examination of Doug Johnson.

¶17 City argues the trial court abused its discretion when it limited City's cross-examination of Doug Johnson. City maintains the court limited its opportunity to fully explore the elements upon which Johnson based his range of values. City specifically claims it should have been allowed to impeach him to determine if he relied on a neighboring landowner's condemnation award when he determined his range. ³ It claims this opportunity for impeachment was needed to determine if he relied on an improper element of damage, because his reliance on improper damage elements would result in his testimony being stricken and disregarded. We, however, find these arguments to be unpersuasive.

¶18 "[T]he trial court retains broad discretion concerning the limitation of cross-examination and it will be reversed only when there is a clear abuse of that discretion and a showing of prejudice[.]" State v. Koepsell, 508 N.W.2d 591, 595 (S.D.1993) (citations omitted); see SDCL 19-14-18. City has the burden of establishing it has been prejudiced by the limitation, and that the jury would have had a different impression had the cross-examination been allowed. Koepsell, 508 N.W.2d at 595 (citations omitted).

¶19 We find City has not met its burden. It has not established the jury would have received a different impression had City been allowed to cross-examine Johnson in the way in which it intended. Further, it has not established it has been prejudiced in any way by the limitation. It was allowed to cross-examine Johnson on the elements on which he based his range of values. In fact, several times City specifically questioned him about that basis. Johnson answered these inquiries. The fact that these inquiries did not give City its sought-after response did not entitle it to probe into areas which the trial court had determined to be inadmissible. This limitation on Johnson's cross-examination was not an abuse of discretion.

¶20 c. There was not sufficient evidence to support the jury's verdict.

¶21 City argues the evidence was insufficient to support the jury's verdict. It claims the verdict was the product of "passion, prejudice, or mistake of law in the excessiveness of the award in light of insufficient evidence." We agree.

¶22 " '[I]f the jury's verdict can be explained with reference to the evidence ... the verdict should be affirmed.' " Spiry, 1996 SD 14, p 19, 543 N.W.2d at 264 (quoting Miller v. Hernandez, 520 N.W.2d 266, 272 (S.D.1994)). The verdict will not be set aside unless it is "clearly 'unreasonable, arbitrary and unsupported by the evidence.' " Bakker v. Irvine, 519 N.W.2d 41, 49 (S.D.1994) (quoting Kusser v. Feller, 453 N.W.2d 619, 621 (S.D.1990)) (other citations omitted). However, even though "[m]ere generosity is not enough to...