Land Clearance for Redevelopment Authority of City of Joplin v. Joplin Union Depot Co.

Decision Date10 June 1968
Docket NumberNo. 8720,8720
Citation429 S.W.2d 806
PartiesLAND CLEARANCE FOR REDEVELOPMENT AUTHORITY OF the CITY OF JOPLIN, Missouri, a public corporation, Plaintiff-Respondent, v. JOPLIN UNION DEPOT COMPANY, a corporation, Defendant-Appellant.
CourtMissouri Court of Appeals

Lloyd R. Buehner, Joplin, Robert D. Youle, kansas City, for defendant-appellant; Buehner & Thomas, Joplin, Lathrop Righter, Gordon & Parker, Kansas City, of Counsel.

Roberts & Fleischaker, Loyd E. Roberts, Joplin, for plaintiff-respondent.

STONE, Judge.

In this proceeding Land Clearance for Redevelopment Authority of the City of Joplin, Missouri (hereinafter referred to as the Authority), a public corporation organized under the Land Clearance for Redevelopment Authroity Law (V.A.M.S. §§ 99.300 to $99.660), has exercised its power of eminent domain (V.A.M.S. §§ 99.420(4) and 99.460), in connection with the Progress Urban Renewal Project in Joplin, to condemn Lots 151 and 152 and one-half of the vacated alley at the rear of those lots in Porter's Addition (referred to upon trial as, and hereinafter called, the subject lots), which were owned by defendant Joplin Union Depot Company, a corporation (referred to upon trial as, and hereinafter called, JUD). The commissioners awarded $2,250 to JUD, and the Authority paid that sum into the registry of the court on May 12, 1964, which thereby became the date of taking. V.A.M.R. 86.06; V.A.M.S. § 523.040; State ex rel. State Highway Commission v. Harris, Mo.App., 417 S.W.2d 29, 31(3). After the filing of JUD's exceptions to the commissioners' report (V.A.M.R. 86.08; V.A.M.S. § 523.050), the proceeding lay dormant on the docket until a jury trial was had on April 24 and 25, 1967, which terminated in a verdict for $5,000 upon which judgment was entered for JUD in the principal sum of $2,750 (after deducting the Authority's previous payment of $2,250) with interest thereon in the sum of $482 (V.A.M.R. 86.10; V.A.M.S. § 523.045), or in the aggregate amount of $3,232. Thereafter, to wit, on June 9, 1967, the Authority's timely motion for new trial was sustained 'on the grounds that the verdict of the jury is excessive and against the weight of the evidence.' JUD appeals.

Under 'points relied on,' JUD asserts that the trial court 'erred and abused its discretion' in granting a new trial in that (a) 'the verdict and judgment below was not contrary to, but rather was clearly supported by, the preponderance and weight of the substantial, credible and probative evidence in the cause' and (b) 'there was no substantial or prejudicial misconduct and arguments by (JUD's) attorneys at the trial which could or did affect the jury or the result and its verdict in the case, nor was any proper and timely objection made thereto or exception saved thereon.' We treat of these in inverse order, as appears to be more appropriate.

Of (b). The disavowal of 'substantial or prejudicial misconduct and arguments' by JUD's attorneys was prompted by the trial court's 'memorandum opinion,' in which he expressed the view 'that other matters were injected into the trial of this case and undoubtedly affected the jury which should not have been brought before the jury' and, after commenting about those 'other matters,' concluded 'that the general attitude developed in connection with the trial of this case did not result in a fair and proper determination of the value of the property involved and for that reason in addition to the reasons first stated, the court feels that plaintiff (the Authority) is entitled to a new trial.' In sustaining a motion for new trial, the court is required to 'specify of record the ground or grounds on which said new trial is granted' (V.A.M.R. 78.01; V.A.M.S. § 510.330), and the reported decisions leave no room for doubt but that the trial court's order is the sole official repository for the court's grounds, thoughts or reasons for sustention of the motion for new trial. 1 If that order is ambiguous, uncertain or incomplete, the appellate court properly may refer to an accompanying memorandum to explain or support the order (e.g., Ponyard v. Drexel, Mo.App., 205 S.W.2d 267, 270(3, 4)); but the order presently under review is afflicted with none of those frailties.

The Authority was granted a new trial 'on the grounds that the verdict of the jury is excessive and against the weight of the evidence,' which are in legal contemplation and effect one and the same, namely, that the verdict was against the weight of the evidence. 2 Whatever was or might have been written in the memorandum opinion could not have become a part of that plain and unambiguous order or changed the meaning or effect thereof (Sawyer v. Winterholder, Mo., 195 S.W.2d 659, 661(2)) and could not have constituted a substitute for the order or been employed to oppose, contradict or dispute it. Bierman v. Langston, Mo., 304 S.W.2d 865, 867(5). Being invested with no right to 'go behind what is clearly expressed in the order' (State ex rel. State Highway Com'n. v. Vaught, Mo., 400 S.W.2d 153, 154), we accept it at face value as having granted a new trial on the sole specified ground that the verdict was against the weight of the evidence. Burr v. Singh, 362 Mo. 692, 699--700, 243 S.W.2d 295, 300(11); Mary Potter Love, Inc. v. Medart, Mo.App., 198 S.W.2d 386, 391(2). Accordingly, we eschew the unnecessary and unrewarding exercise of discussing the alleged 'substantial or prejudicial misconduct and arguments' of JUD's attorneys or 'the general attitude developed in connection with the trial.'

Of (a). A preliminary review of the settled legal principles applicable upon appeals such as this may be helpful. The trial court is vested with broad and inherent discretion in granting one new trial on the ground that the verdict was against the weight of the evidence; 3 an order granting a new trial on that ground is presumptively correct; 4 and the appellate court will be liberal in upholding such order. 5 It has been declared repeatedly that 'the granting of a new trial by the trial court (on the ground the verdict was against the weight of the evidence) will not be interfered with on appeal where there is substantial evidence to sustain the trial court's view, or, putting it in another way, when there is substantial evidence to support a verdict for the party to whom a new trial is granted.' 6 (Except as otherwise indicated, all emphasis herein is ours.) Hence, stated in its simplest terms, our province on review is to ascertain whether there was substantial evidence to support the trial court's order. 7 And in such inquiry we should look to the evidence most favorable to sustention of that ruling, 8 disregarding the testimony favorable to JUD unless it aids the successful movant, i.e., the Authority. 9

We particularly note the holdings in certain condemnation cases recognizing and applying the foregoing principles, to wit, (a) that on condemnor's appeal from an order granting a new trial to condemnee because a verdict of 'no damages' was against the weight of the evidence, the appellate court only determines 'whether there is any substantial evidence to support a verdict of some net damages to the landowners, and if so the trial court's ruling is not to be disturbed' (Vaught, supra, 400 S.W.2d at 155(5)), and (b) that, on condemnor's appeal from an order granting a new trial to condemnee because a verdict of $1,350 was against the weight of the evidence, the trial court had discretionary power to grant such new trial 'if there was substantial evidence in the case to support a verdict in a larger amount than that awarded by the jury.' State ex rel. State Highway Com'n. v. Hutchison, Mo.App., 404 S.W.2d 391, 393(2). By the same reasoning it logically follows, and we so hold, that in the case at bar the trial court had such discretionary power to grant a new trial to condemnor if there was substantial evidence in the case to support a verdict in a smaller amount than the jury's award of $5,000.

With these controlling legal principles before us, we turn to the evidence. The subject lots, each 50 feet in width, fronted for 100 feet on the east side of South Pennsylvania Avenue between Second and Third Streets and had a depth of 130 feet including 10 feet at the rear which was one-half of the vacated alley. They sloped downgrade toward the east, with a fall of 3 1/2 to 4 1/2 feet between the front and the rear of the lots. At the rear, the ground level dropped 'immediately and rapidly, perhaps 25--30 feet down to what was Kentucky Avenue,' the first north-south street east of Pennsylvania. The freight house and tracks of JUD, a corporation 'owned' jointly by three railroads, namely, the Kansas City Southern, Santa Fe and Missouri-Kansas-Texas, were on this lower level in the block east of Kentucky. Either JUD or its subsidiary, Union Depot Realty Company, had owned the subject lots since 1908. Witness McCright, general tax commissioner and real estate agent for the Kansas City Southern which operated JUD for the three joint owners, said that the subject lots had been vacant and undeveloped and had not been 'used * * * for anything' since 1943, when he first saw them; and there was no showing of any structure thereon or any use thereof at any prior time.

Pennsylvania Avenue, with a 38-foot blacktop roadway, was the second street east of Main Street, the principal north-south street through the downtown business district of Joplin. One of JUD's witnesses located 'the 100% area of downtown Joplin' as on Main Street between Fifth and Sixth Streets, some five to six blocks from the subject lots. However, the east side of Main Street between First and Fourth Streets was included with the subject lots in the same 'blighted' area which the Authority was seeking to redevelop in the Progress Urban Renewal Project; and even JUD's witnesses did not think that the subject lots should be valued for 'possible retail use.'

Upon trial four...

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