Mettee v. Urban Renewal Agency
| Decision Date | 06 March 1976 |
| Docket Number | No. 47876,47876 |
| Citation | 219 Kan. 165,547 P.2d 356 |
| Parties | Leonard METTEE, Appellant, v. The URBAN RENEWAL AGENCY and Kansas City, Kansas, et al., Appellees. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. Ordinarily an order granting a new trial is not a final order and is not appealable to this court except where the order is challenged on jurisdictional grounds.
2. The grounds set forth in K.S.A.1975 Supp. 60-259(a) are exclusive and constitute a limiting factor upon the authority of a trial court to grant a new trial.
3. In an eminent domain case the outside limits of the verdict are fixed by the valuation evidence which the court has received, and which is before the jury. A verdict within those limits cannot be disturbed by the trial court, even though the court would have arrived at a different conclusion.
John H. Fields, Carson, Fields, Kugler & Boal, Kansas City, argued the cause and was on the brief for appellant.
Robert H. Foerschler, McAnany, Van Cleave & Phillips, Kansas City, argued the cause and was on the brief for appellees.
The landowner in this condemnation case appeals from an order of the trial court disapproving the jury verdict and granting a remittitur or, alternatively, a new trial on the ground that the verdict is excessive and contrary to the evidence.
The court appointed appraisers awarded the landowners $18,750. The first jury awarded $17,500. The landowner appealed and this court reversed because of improper and prejudicial closing argument. Mettee v. Urban Renewal Agency, 213 Kan. 787, 518 P.2d 555.
The second trial was held in September 1974. Expert witnesses for the parties and their respective opinions of the value of the land taken were as follows:
For the Landowner For the Urban Renewal
----------------- ---------------------
Agency
------
Rex Vickers $46,875 Fletcher Speck $ 9,375
This was a total taking of six lots on Southwest Boulevard in the Rosedale area of Kansas City, Kansas. The second trial jury returned a verdict of $42,000.
Urban Renewal filed a motion for new trial in which it enumerated some twelve grounds, including its claim that the verdict was contrary to the evidence. Counsel for the landowners sought a hearing date for the motion. Thereafter the trial judge wrote to counsel, stating:
'I am in receipt of Mr. Field's letter in which he asked me to set a date for hearing condemnor's Motion for a New Trial.
'I do not think a hearing will be necessary because the Court is of the opinion that the verdict of the jury is grossly excessive under the credible evidence, and therefore the Court could not approve the same.
'The values placed on the tract in question by the landowner's expert witnesses were unreasonably high and the values of condemnor's experts were unreasonably low in the light of any of the recognized appraisal formulae.
The landowner promptly filed a rejection of the remittitur, and a notice of appeal. Counsel were unable to agree upon a journal entry and therefore one was prepared and filed by the court. It states in part:
'(a) A hearing is not necessary because the Court is of the opinion that the verdict of the jury is grossly excessive under the credible evidence, and therefore the Court cannot approve the same.
* * *
* * *
'(c) It is the opinion of the Court that at the time of the taking the fair market value of the tract in question was $28,000.00 . . ..
'(d) The Court would approve the verdict of the jury with a (remittitur) of $14,500.00, but the landowner through his Attorney has advised that he is not willing to accept such (remittitur).
'IT IS THEREFORE, CONSIDERED, ORDERED AND ADJUDGED that a new trial is granted on the ground that the amount of the verdict is excessive and is contrary to the evidence.'
The landowner lists four points on appeal. He contends that:
1. The Court was without jurisdiction to grant a new trial on the ground that the Court was of the opinion that the verdict of the jury was grossly excessive under the credible evidence.
2. The Court was without jurisdiction to order a remittitur or, in the alternative, a new trial when the verdict of the jury was within the range of expert testimony.
3. The Court was without jurisdiction to weigh the testimony of the witnesses and determine its credibility having admitted the testimony of the witnesses in evidence.
4. The Court was without jurisdiction to invade the province of the jury and make findings of fact on contested factual issues.
These points are interrelated and were discussed together by both parties in their argument. The sole question is whether the trial judge in a condemnation case may grant a new trial on the ground that the verdict is 'contrary to the evidence' where the verdict is in fact within the range of the expert testimony is therefore supported by the evidence.
Ordinarily an order granting a new trial is not a final order and is not appealable to this court except where, as here, the order is challenged on jurisdictional grounds. Landscape Development Co. v. Kansas City P. & L. Co., 197 Kan. 126, 415 P.2d 398; Herbel v. Endres, 202 Kan. 733, 451 P.2d 184. The landowner here contends that the trial court was without jurisdiction to take the action it took.
Prior to the enactment of our present civil code, the trial judge was a 'thirteenth juror' and it was his right and duty to set aside a verdict which he did not approve. Allen v. Urbon Renewal Agency, 192 Kan. 682, 685, 390 P.2d 1020. K.S.A.1975 Supp. 60-259(a) enumerates the specific grounds upon which a trial court may grant a new trial. The fourth of these is:
'That the verdict . . . is in whole or in part contrary to the evidence.'
As will be seen from a summary of the expert testimony, the verdict was within the evidence adduced. It was in the exact amount fixed by the witness Vaughan, and was within the range of the evidence, being between $9,375 and $46,875. In Landscape, supra, the only reaso given by the trial court in ordering a new trial was, "the fact that the Court can not approve the verdict of the jury, period." (197 Kan. p. 127, 415 P.2d p. 400.) This court said:
'K.S.A. 60-259(a) sets forth, in plain and unmistakable language, the grounds on which a new trial may be granted to all or any of the parties. There are six of them. We see no need to list them now. It is sufficient, here to say that the reason assigned by the trial court in this case, 'that the Court cannot approve the verdict of the jury, period,' is not one of the six grounds listed in the statute.
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