City of Wichita v. Meyer
| Decision Date | 30 May 1997 |
| Docket Number | Nos. 77684,77685,s. 77684 |
| Citation | 939 P.2d 926,262 Kan. 534 |
| Parties | CITY OF WICHITA, Kansas, A Municipal Corporation, Appellant, v. Otto MEYER and R.E.M. Properties, Appellee. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. A landowner may attack the validity of a condemnation proceeding in a separate action; however, there is no provision in the Eminent Domain Procedure Act, K.S.A. 26-501 et seq., precluding a landowner from raising statutory defect arguments in the condemnation proceeding itself when the defects render the condemnation proceeding void. Absent waiver, estoppel, or laches, a landowner may raise these defects either before or after an appeal of an award is taken. Although K.S.A. 26-508 provides that an appeal is limited to the issue of compensation, raising statutory defects that render the condemnation proceeding void before trial of the appeal is not foreclosed.
2. Although it is conceivable that a condemnation petition might include tracts excluded from the appraisers' report (if the condemnor decided not to pursue condemnation of certain tracts initially thought to be needed), K.S.A. 26-506 does not allow the appraisers' report to include tracts and record owners not listed in the petition.
3. K.S.A. 26-504 sets forth the necessary findings that the judge must make from the petition before the condemnation can go forward. If the petition fails to list the property to be condemned, the judge cannot make any of the findings to allow condemnation to go forward as to that property.
4. Inverse condemnation is an action initiated by the landowner and is available when private property has been taken for public use without formal condemnation proceedings and where it appears there is no intention or willingness of the taker to bring the condemnation action.
5. In an appeal arising out of an eminent domain proceeding, the record is reviewed, and it is held: (1) The first condemnation award was void for lack of jurisdiction because of statutory defects in the condemnation proceeding; (2) the condemnor has taken the landowner's property but has abandoned the condemnation proceeding, and the landowner is entitled to reasonable expenses under K.S.A. 26-507(b); (3) the landowner has an inverse condemnation claim against the City; and (4) injunctive relief against the condemnor is improper, in that the landowner can be adequately compensated with monetary damages.
Joseph W. Kennedy, of Morris, Laing, Evans, Brock & Kennedy, Chartered, Wichita, argued the cause, and Robert W. Coykendall, of the same firm, and Gary E. Rebenstorf, Director of Law, and Douglas J. Moshier, Senior Assistant City Attorney, were with him on the briefs for appellant.
Robert W. Kaplan, of Kaplan, McMillan & Harris, Wichita, argued the cause and was on the briefs for appellee R.E.M. Properties.
This first impression case arises from a condemnation initiated by the City of Wichita (City) to acquire land for its $6 million ice rink project. The issues are tied together in a land acquisition Gordian knot. Our task is to resolve the controversy without harming established concepts of eminent domain law.
In doing so, we untie rather than arbitrarily cut the knot.
The City appeals two orders entered by the district court. In the first order, after the property owner R.E.M. Properties (REM) appealed the initial condemnation award, the district court held that it had no jurisdiction over either REM or its property (tracts 47 and 48). The City failed to list REM and tracts 47 and 48 in the condemnation petition for the land on which the ice rink was to be built. The City did not amend the petition to add tracts 47 and 48 until after that initial award. In the second order, in a partial ruling on REM's motion for expenses following the City's failure to deposit the second condemnation award, the district court held that the City had abandoned the condemnation proceeding, had no title or right to possession, and had to surrender possession and remove all ice rink improvements.
Our jurisdiction is under K.S.A. 60-2102(a) () and K.S.A. 20-3018(c) ().
The issues are whether: (1) the district court had jurisdiction to consider statutory defects in the condemnation proceeding raised by REM after REM appealed the initial condemnation award but before trial of that appeal; (2) the City acquiesced in the district court's ruling that it had no jurisdiction over REM or its property at the time of the initial condemnation award; (3) the district court erred in determining that the initial condemnation award was void; and (4) the district court erred in determining that the City had abandoned its condemnation and in entering injunctive relief against the City.
We affirm in part, reverse in part, and remand. The ice rink survives. Although the City has taken REM's property, it has abandoned the condemnation proceeding. REM is entitled to reasonable expenses under K.S.A. 26-507(b) and has an inverse condemnation claim against the City.
The facts are unique. Neither the parties nor our independent research have located a similar condemnation case. In November 1994, the City passed an ordinance approving the acquisition of private property by eminent domain to build a public ice skating rink. The published ordinance listed 17 tracts to be taken, including REM's property, tracts 47 and 48. On December 22, 1994, the City filed its petition in eminent domain to acquire the necessary property. The petition listed only seven of the tracts shown in the ordinance and the names and addresses of the record owners and lienholders for those tracts. Tracts 47 and 48 were not listed, and REM was not named as a party. Notice of the filing of the petition was published, stating that the petition was to be heard on January 6, 1995. The notice did not list tracts 47 or 48 or name REM. The affidavit of mailing said thatcopies of the notice were mailed to persons shown in the notice (not including REM).
The district court found that the City had the power of eminent domain and that the ordinance described the property being condemned. An order dated January 6, 1995, appointed three appraisers and set the time for filing of the appraisers' report.
Notice of a public hearing on the appraisers' report was published. The public hearing notice showed REM in the caption, listed nine tracts, including tracts 47 and 48, and listed the record owners and lienholders of all of those tracts (including REM). An affidavit of mailing stated that copies of the notice were mailed to the persons shown in the notice.
The appraisers' report was filed. Regarding notice of the public hearing before the appraisers, the report provided:
"On the 13th day of January, 1995, we mailed copies of said published notice of our Public Hearing to the Plaintiff and all Defendant parties named in the petition whose addresses were known to us or could with reasonable diligence be ascertained, the proof of which mailing has been filed in this action."
The report listed damages for the taking of five tracts, 34, 37, 47, 48, and 53, for a total of $191,080. Tracts 47 and 48 were valued at $29,000. An order approving the appraisers' report and allowing the appraisers' fees and costs was entered. The City deposited the total appraisers' award, plus fees and costs with the clerk of the district court. Notice of the deposit was mailed to REM by the clerk's office. The City mailed notice of the appraisers' award to the landowners shown in the appraisers' report (including REM). The notice informed the landowners that they had 30 days from the date of filing of the appraisers' report to appeal the award.
An undated order filed January 30, 1995, granted the City leave to file an amended petition without further notice orhearing to add two tracts, the owners, and interested parties "who were inadvertently omitted from this proceeding and who are necessary parties hereto."
On March 1, 1995, REM filed a notice of appeal of the appraisers' award for tracts 47 and 48, asserting that REM was dissatisfied with the award and also reserving the right to contest both irregularities in the proceeding and jurisdiction. The next day, the City filed its amended condemnation petition, naming REM in the caption and listing nine tracts, including 47 and 48, and their record owners and lienholders.
Trial on REM's appeal of the appraisers' award was scheduled for December 5, 1995. On November 21, 1995, REM filed a motion for an order remanding the matter to a new panel of court-appointed appraisers for another damage determination, arguing that the court lacked jurisdiction as to the first appraisers' award. REM reasoned: (1) Neither the landowner nor tracts 47 and 48 were listed in the initial condemnation petition; (2) the landowner was not named as a party and was not sent any notice of the petition; (3) the order granting the City leave to file an amended petition was obtained ex parte and was not filed until January 30, 1995; and (4) the City did not file its amended petition until March 2, 1995, after approval of the first appraisers' report.
The City countered that any notice problem should have been addressed before appealing the award and, by appealing, REM could only challenge the amount of the award. The City also argued that the district court lacked jurisdiction to order a remand once an appeal was filed. In an oral ruling on November 27, 1995, the district judge advised that REM's motion would be granted. However, the judge said that he would delay entering the order to allow the City to decide whether to appeal. The judge claimed that the City's counsel later told him that an order would not be necessary. No one appeared for trial on December 5, 1995, and in February 1996, REM's appeal of the $29,000 award was administratively dismissed for lack of prosecution.
The City proceeded to obtain another appraisers' award...
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