City of Springfield v. Love

• Decision Date: 20 November 1986
• Docket Number: No. 13890,13890
• Citation: City of Springfield v. Love, 721 S.W.2d 208 (Mo. App. 1986)
• Court: Missouri Court of Appeals
• Parties: CITY OF SPRINGFIELD, Missouri, A Municipal Corporation, Plaintiff-Appellant, v. Lewis Crenshaw LOVE, on Exceptions of Modern Tractor & Supply Company, Inc., Defendant-Respondent. Missouri State Highway and Transportation Department and Land Clearance for Redevelopment of the City of St. Louis, Amici Curiae.

Page 208

721 S.W.2d 208

CITY OF SPRINGFIELD, Missouri, A Municipal CorporationPlaintiff-Appellant, v.Lewis Crenshaw LOVE, on Exceptions of Modern Tractor &amp Supply Company, Inc., Defendant-RespondentMissouri State Highway and Transportation Department and Land Clearance for Redevelopment of the City of St. LouisAmici Curiae.

No. 13890.

Missouri Court of Appeals,

Southern District,

Division Two.

Nov. 20, 1986.

Motion for Rehearing or Transfer

Denied Dec. 5, 1986.

Application to Transfer Denied Jan. 13, 1987.

Karen Marty, Asst. City Atty., Springfield, for plaintiff-appellant.

Gerald H. Lowther, Michael K. Cully, Lowther, Johnson, Lowther, Cully & Housley, Springfield, for defendant-respondent.

Bruce A. Ring, Chief Counsel, John H. Gladden, Springfield, for Missouri State Highway and Transp. Dept. Asst. Counsel, amicus curiae.

Sarah Siegel, General Counsel, St. Louis, for Land Clearance for Redevelopment of the City of St. Louis, amicus curiae.

HOGAN, Presiding Judge.

This is a condemnation case, heard below upon the exceptions to the report of commissioners filed by Modern Tractor & Supply Company, Inc.(hereinafter Modern Tractor or the condemnee).The City of Springfield(hereinafter the city or the condemnor) has exercised its power of eminent domain conferred by its charter to appropriate several parcels of land in the extreme southwest part of the city.The enabling ordinance found it necessary to appropriate this parcel and others for public street purposes in order to widen and improve Kansas Expressway, a north-south thoroughfare which runs along the west side of the city.Although all mention of the Highway 60 bypass was excluded from the trial upon the city's motion, Kansas will eventually connect that bypass (locally called the "James River Freeway") on the south with Interstate 44 on the north side of the city.

The parcel of land taken is relatively small.It is part of a 90-acre tract and contains slightly more than 5 acres or 223,046 square feet.Upon trial of Modern Tractor's exceptions to a jury as provided by Rule 86.08, the condemnee's damages were assessed at the sum of $92,500.00 with interest in the amount of $23,675.79.The city has appealed.Five assignments of error have been briefed and argued in this court.Departing from our usual practice, we permitted the filing of briefs amicus curiae by the Missouri State Highway and Transportation Department(hereinafter SHC) and the Land Clearance for Redevelopment Authority for the City of St. Louis.We departed from our usual practice because the case has become something of a local cause celebre, and both SHC and the St. Louis organization expressed interest.Our files indicate the amicus briefs were served on both the condemnor and condemnee several months before the appeal was argued, without objection or response from either party.We feel free to consult those briefs, although they contain little or no information not contained in the city's brief.

The two principal assignments of error made by the city are contained in its points IA and IB.Both points are stated in self-defeating detail; both points overlap, and in consequence our opinion is of necessity somewhat repetitious.Slightly paraphrased, the city's points IA and IB are: a) that the trial court erred and abused its discretion in allowing witness O'Connell to testify to unaccepted offers to purchase the whole tract owned by Modern Tractor, and b) if evidence of the unaccepted offers was admissible, the condemnee laid no proper foundation for its admission and failed to show that the offers were bona fide.

The condemnee responds by asserting that the condemnor's objections to the evidence of unaccepted offers were insufficient, in several respects, to preserve anything for review, and that evidence of an unaccepted offer is admissible to prove the fair market value of a condemned tract of land if a proper foundation is laid and the condemnee's evidence was sufficient to establish a basis for its admission.

Some preliminary observations are necessary to an understanding of the case.Four days prior to trial, the city filed a motion in limine to exclude certain evidence.We have no docket entry of any pretrial conference, but the transcript indicates the trial court gave the motion careful attention.We direct our attention particularly to paragraph 1 of the motion.The city asked the court to exclude any mention of any evidence of any unaccepted offer to purchase the defendant's land by any person, "to attempt to show market value and/or damages to subject property.Such evidence is highly speculative, and subject to many collateral factors which would prejudice the jury against this Plaintiff."The city went on to suggest that evidence of unaccepted offers is "contrary to Missouri law."The city also moved to exclude evidence of the probability of a change in the present zoning of the condemnee's land, asserting that any contemplated change in zoning depended upon the construction of U.S. Highway 60 bypass south of Springfield.

We recite this detail to show that the trial court had these objections clearly in mind when the trial commenced.The court again solicited counsel's views on the condemnor's motion in limine before trial, and counsel for the condemnor answered:

"Your Honor, in regard to the court's ruling on point one of the plaintiff's motion in limine, I of course differ with the court that on the basis of an unacceptable, unaccepted offer, it would not be admissible under the law, only with the exception it would be to prove a bona fide offer to show the demand for the land and the sale price itself would be admissible if they put someone on the stand [and]the court has ruled that he will allow that testimony after proper foundation."

The trial court then stated that its ruling would be deferred "depending on the proper foundation having been shown."Counsel for the city thereupon moved a mistrial because of the court's ruling; the court responded by saying that "at this stage,"the court would deny "Point One of the Motion in Limine."The parties also discussed the exclusion of evidence concerning the possibility of rezoning.The court expressed the view, very indirectly, that evidence of rezoning would probably be received, but excluded any mention of the possibility of rezoning because of the construction of the Highway 60 bypass.What we have just recounted shows that the court and the parties were familiar with the evidentiary questions presented on this appeal, and with the trial court's preliminary rulings, before evidence was presented.

The condemnee's evidence of the value of the tract of land condemned at the time it was taken came from several witnesses.For our purposes, we need consider only the testimony of Mr. Barry Cox, chief managing officer of the corporation which owned the tract taken, Mrs. Pat Walker, and Mr. Daniel O'Connell.

Mr. Cox testified that on April 23, 1979(the date of the taking), the condemnee owned a tract of land containing approximately 90 acres at the corner of Greene County Highway M and Cox Road.An aerial photograph taken by Mr. Cox shows the parcel to be an irregularly-shaped tract of open land in a residential area.We gather from the record that the tract is on the west side of Cox Road, which runs north and south, and immediately north of Highway M, which runs east and west.The petition itself describes the plot taken as the east 180 feet of the total acreage, which is accurate; nevertheless, Mr. Cox emphasized that the area taken included 458 feet which abutted Highway M in the city limits, and in square feet, came to 233,046 square feet of land.

Concerning the general nature of the "neighborhood," Mr. Cox testified that about 1/2 to 3/4 miles north of the parcel, on Battlefield Road, there was an industrial park, where several industrial and commercial plants were located.On Highway M, some distance to the east, there was a new bank, a drive-in theatre, a church and a library.To the west, churches and another bank had been constructed.Immediately to the east on Highway M, there was an open shopping center in which possibly 10 stores were located.

The condemnee's basic contention, which runs throughout Mr. Cox's evidence and that of the condemnee generally, was that the highest and best use of the land taken was for commercial development, although such development would have required rezoning.At the time of taking, no application for rezoning had been made, and as far as the record shows, none had ever been made.Mr. Cox's testimony was, however, that he was a lifelong resident of the community, that he had followed the course of subdivision in the community and that development of the City of Springfield was "growing very rapidly [to the] southwest."

In considerable part, Mr. Cox's opinion of the value of the tract appropriated was based on offers to purchase the entire tract for development as commercial property.Mr. Cox fixed the value of the lot at $2.25 per square foot.Such is the substance of Mr. Cox's evidence.

The condemnee also had the evidence of Mrs. Pat Walker.Mrs. Walker served on the city's planning and zoning commission from June 1977 to December 1979.Her testimony was that she had taken her work seriously and had pursued the subject of land use independently.During 1977, 1978 and 1979, when land use was before the commission, Mrs. Walker had actually viewed each tract of land about which there was some question of proper land use.Mrs. Walker had established a research business, called Resource Planning Management Associates.Part of the firm's business was "site selection and analysis and feasibility studies for people considering commercial and any kind of development."Mrs. Walker was associated with a university professor who taught land use, or "planning" at a local university.We suppose Mrs. Walker was qualified as an expert on at least some aspects of...