Land Clearance for Redevelopment Authority of Kansas City v. Massood

• Decision Date: 04 August 1975
• Docket Number: No. 27029,27029
• Citation: 526 S.W.2d 354
• Parties: LAND CLEARANCE FOR REDEVELOPMENT AUTHORITY OF KANSAS CITY, Missouri, Plaintiff-Respondent, v. George MASSOOD and Donald E. Hutchison, Defendants-Appellants.
• Court: Missouri Court of Appeals

Page 354

526 S.W.2d 354

LAND CLEARANCE FOR REDEVELOPMENT AUTHORITY OF KANSAS CITY Missouri, Plaintiff-Respondent, v. George MASSOOD and Donald E. Hutchison, Defendants-Appellants.

No. 27029.

Missouri Court of Appeals, Kansas City District.

Aug. 4, 1975.

Gage, Tucker, Hodges, Kreamer, Kelly & Varner, William L. Turner, Michael J. Gallagher, Kansas City, for defendants-appellants.

Terrell, Van Osdol & Magruder, Paul Van Osdol, Jr., Richard M. Erickson, Kansas City, for plaintiff-respondent.

Before SOMERVILLE, P.J., PRITCHARD, C.J., and TURNAGE, J.

SOMERVILLE, Presiding Judge.

Land Clearance For Redevelopment Authority Of Kansas City, Missouri, hereinafter referred to as 'condemnor', filed a condemnation action to acquire three parcels of land jointly owned by George Massood and Donald E. Hutchison, hereinafter referred to as 'condemnees'. The condemnees, as well as the condemnor, filed exceptions to the Commissioners' Robert fixing and assessing $15,065.00 as condemnees' damages for the taking of the three parcels of land. The amount awarded by the Commissioners was paid into court on September 17, 1971.

A jury trial resulted in a verdict and judgment for $12,052.00 as damages for the taking of condemnees' property. Condemnees, dissatisfied with the jury's assessment of damages, have appealed and their effort to achieve appellant relief centers on certain evidentiary matters. More precisely, condemnees claim the trial court committed reversible error on three occasions. First, the refusing to permit condemnees, during cross-examination of one of condemnor's expert witnesses, to inquire of said expert witness the consideration he gave, if any, to the impact of an 'announcement and implementation' of an Urban Renewal Plan for the area on his 'comparable sales data'. Second, in overruling condemnees' motion in limine directed towards, and in admitting into evidence over condemnees' objection, the price paid by them for certain parcels of the land being condemned because the purchases resulted from 'forced sales' rather than voluntary market transactions. Third, in overruling condemnee's motion in limine directed towards, and in admitting into evidence over condemnees' objection, all purported 'comparable sales' testified to by condemnor's expert witnesses subsequent to announcement of the aforementioned Urban Renewal Plan and a declaration that the project area was blighted.

Before addressing condemnees' various contentions on appeal with any degree of particularity, some observation of certain general facts appears to be in order.

Condemnees' property was located in a portion of Kansas City, Missouri, described as the 'East 23rd Street Urban Renewal Area', which, on June 15, 1967, was declared to be 'blighted and unsanitary' by the City Planning Commission of Kansas City, Missouri. On August 18, 1967, the City Council of Kansas City, Missouri, passed an ordinance declaring the proposed urban renewal area blighted. Condemnor's plan for redevelopment of the area, as revised, was approved by the City Council on October 1, 1970, and the instant action to acquire condemnees' property by condemnation was filed July 12, 1971.

Condemnees were real estate brokers specializing in commercial and industrial property. Among other things, they specialized in assembling tracts of land (taking title in their own names) for speculative commercial and industrial purposes. In 1963, they assembled and sold to Sears, Roebuck and Company 168,242 square feet of property. Sears put the acquired property to use as a parking lot in connection with their 'retail store' and 'catalogue order plant' located at Truman Road and Cleveland in Kansas City, Missouri. In 1964, condemnees started to assemble another tract of ground for speculative purposes in what was subsequently designated the East 23rd Street Urban Renewal Area, and in so doing acquired the three parcels of land which are the subject of this condemnation action. The three parcels of land mentioned are located on the east side of Myrtle Street across from the Sears parking lot.

The condemnees and their expert witnesses all testified that the highest and best use of the three parcels of land, although zoned 'R 2B--residential duplexes' as of the date of taking, was for commercial and industrial purposes. They further testified that in their opinion there was a 'reasonable probability' that the three parcels of land could be rezoned to 'M 2A--heavy industrial'. Condemnor's expert witnesses all testified that the highest and best use of the three parcels of land was for residential purposes.

One of the condemnees, without objection, testified that 'it became public knowledge' in 1965 that the general area in which the three parcels of land were located was being studied and considered as a 'blighted area' for purposes of 'redevelopment' and when that occurred 'everything just stopped'.

As is frequently the case, there was a wide divergence of opinion between condemnees and their expert witnesses, and the opposing expert witnesses, as to the fair market value of the three parcels of land as of the date of their taking (September 17, 1971). The condemnees and their expert witnesses, as well as the opposing expert witnesses, all used the market data or comparable sales approach, as opposed to the cost approach or income approach, in arriving at the fair market value of the property as of the date of taking. Opinions as to the fair market value of the property ranged from a high of $39,775.00 to a low of $5,125.00.

Considerable difficulty has been encountered in perceiving the thrust of condemnees' first assignment of error, due in part to the difficulty of relating it to any particular question or questions posed by condemnees on cross-examination. The assignment, verbatim, reads as follows: 'The Court erred in refusing to permit appellants to inquire on cross-examination of respondent's expert witness into the consideration given, if any, to the impact of the announcement and implementation of the Urban Renewal Plan on the validity of his comparable sales data.' Condemnees, in their brief, failed to point to any question or questions posed by them on cross-examination which they claim their first assignment of error purports to encompass. After carefully searching the record this court surmises that the gravamen of condemnees' first assignment of error lies in the following two questions propounded on cross-examination to one of condemnor's expert witnesses:

'And after Urban Redevelopment comes in you just can't make it commercial any more, can you?'

and

'But there couldn't be any parking lot over here where you have your comparable after Urban Renewal came in?'

Both of said questions were objected to by condemnor and its objections were sustained by the trial court. A literal construction of the questions indicates that they were directed toward the use condemnor intended to make of the property once acquisition was completed. Nevertheless, it is apparently condemnees' contention, after reconciling the questions with their first assignment of error and the argument portion of their brief, that said questions were an attempt on their part to show that 'public knowledge' in 1965 that the general area was being studied and considered as a 'blighted area for purposes of redevelopment' had a depressing effect on the market value of all property in the area, including the comparable sales relied on by condemnor's expert witnesses.

The prevailing law of this state fails to support the condemnees insofar as their first assignment of error is concerned. In St. Louis Housing Authority v. Barnes, 375 S.W.2d 144 (Mo.1964), the Supreme Court affirmed a lower court's refusal to give an instruction proffered by a property owner that the jury, in assessing damages in a condemnation action, could take into consideration '. . . any damages caused to defendant's property as a result of the institution of the condemnation proceedings, either by the actual filing of the condemnation petition or by the announcement of plans for condemnation and the effect of such announcement on the value of such property if you find that such announcement, if any, caused the property to change in value.' Thus, the issue of whether the adverse effect of a premature announcement of condemnation is a proper element for a jury to consider in assessing damages in a condemnation action was squarely presented to the court in Barnes. In holding that it was not, the court relied on and quoted as follows from its en banc opinion in State ex rel. City of St. Louis v. Beck, 333 Mo. 1118, 63 S.W.2d 814, 817 (banc 1933): 'We do not undertake to decide if the realty company is entitled to any damages on account of the pendency or delay of the condemnation proceeding itself, and if there is any damage on account of such proceedings, it is of a personal character, as distinguished from any damage to the property itself, and is not an element to be considered by the commissioners in assessing benefits and damages in this proceeding.' In State ex rel. State Highway Commission v. Samborski, 463 S.W.2d 896, 902--903 (Mo.1971), a case involving a lessee's interest in a condemnation award, the Supreme Court demonstrated the continuing viability of the principle for which Barnes and Beck have presently been cited: 'It may be, as suggested by appellant's (lessee's) presentation, that 'common knowledge' of the station's projected demise affected its value, but the threat of condemnation proceedings is not an element of damages for a taking in condemnation. St. Louis Housing Authority v. Barnes, Mo., 375 S.W.2d 144, 147; State v. Beck, Mo. 63 S.W.2d 814.' The line of authorities just mentioned, and the principle announced therein, were relied on in State of Missouri ex rel. State Highway Commission v. Anderson, 485 S.W.2d 614 (Mo.App.1972). The principle enunciated in Beck and affirmed in Barnes stamps with approval the...