Rapid City v. Baron

• Decision Date: 04 April 1975
• Docket Number: No. 11414,11414
• Citation: 227 N.W.2d 617,88 S.D. 693
• Parties: RAPID CITY, a Municipal Corporation under the laws of the State of South Dakota, Petitioner and Appellant, v. William BARON and Phyllis BARON, husband and wife, as joint tenants with right of survivorship and not as tenants in common, Defendants and Respondents.
• Court: South Dakota Supreme Court

Page 617

227 N.W.2d 617

88 S.D. 693

RAPID CITY, a Municipal Corporation under the laws of the State of South Dakota, Petitioner and Appellant, v. William BARON and Phyllis BARON, husband and wife, as joint tenants with right of survivorship and not as tenants in common, Defendants and Respondents.

No. 11414.

Supreme Court of South Dakota.

April 4, 1975.

Horace R. Jackson and Gene N. Lebrun, Lynn, Jackson, Shultz, Ireland & Lebrun, Rapid City, for petitioner and appellant.

George A. Bangs, Joseph M. Butler and Allen G. Nelson, Bangs, McCullen, Butler, Foye & Simmons, Rapid City, for defendants and respondents.

MILLER, Circuit Judge.

This is an appeal from a judgment in a condemnation action wherein the defendants-respondents (Barons) were awarded the sum of $91,791.

Every South Dakotan and most Americans will recall the devastating flood which hit Rapid City on the night of June 9--10, 1972, in which over 240 persons lost their lives and hundreds of homes and business places were destroyed or otherwise damaged. Because of that catastrophe the city entered into a federally funded urban renewal program to acquire by condemnation the flood plain of Rapid Creek as it traverses the city, in an attempt to protect the public from future possible flooding.

Under the authority of SDCL 5--2--18 and the provisions of the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (P.L. 91--646) the city as condemnor commenced acquiring some 1,300 parcels of property, including that of the Barons.

Among several appraisers contracted with by the city to appraise several hundred parcels in the condemnation project* were John Cunningham and Homer Akins. Their appraisals of the Baron property were rejected by the city. Rather, the city chose to make an offer of purchase based upon the lower appraisal of another person, which appraisal was in turn rejected by the Barons.

During the trial, the court rejected certain preliminary motions and objections, and allowed the Barons not only to introduce the video-taped depositions of Cunningham and Akins, but also to identify them as appraisers employed by the city. This was done in the depositions as well as in the opening statements and final arguments of Barons' counsel.

The introductory paragraph of § 4651, 42 U.S.C.A., contains language that one of the purposes of the act is 'to assure consistent treatment for owners in the many Federal programs * * *.' The case was tried on the theory that such policy was binding in the action and, as a result, the court allowed the Barons to place in evidence acquisition prices of other parcels near their property which had been previously acquired by the city through the urban renewal project. Further, the court permitted a jury view of the premises, which the city urges was an abuse of discretion, especially under the circumstances where the court had permitted the Barons to introduce evidence comparing their real estate with nearby property previously acquired in the program.

By its Instruction 7 the court appropriately instructed the jury as to the definition of fair market value (Civil Pattern Jury Instruction 141.06); however, Instruction 7A stated that:

'The Federal Government has contributed the funds for the Urban Renewal Program. One of the policies of the government is to assure consistent treatment of all persons whose property is being taken for public purposes. The Court has admitted into evidence acquisition prices paid by the city to other owners in the area for your consideration in determining the fair and just compensation due the Barons in connection with the taking of their property. You should take this evidence into account along with all the other evidence in determining the fair market value of the Baron property.'

On this appeal the city has made ten assignments of error. For the purposes of this opinion we have combined the related assignments. The issues raised are: whether the testimony of Cunningham and Akins was privileged and was part of the work product of the city; if such testimony was not privileged, whether it was error to allow them to be identified as appraisers or former appraisers of the city; whether it was error for the court to allow into evidence the identification of other parcels near the Barons' property that had been previously acquired by the city in the project; whether the court abused its discretion in allowing a jury view of the premises; whether the court erred in allowing the Barons' counsel to suggest to the jury that the just compensation due them was something other than fair market value as previously defined by this court; and whether Instruction 7A was appropriate.

We believe that the trial court properly allowed the Barons to offer the testimony of appraisers Cunningham and Akins. It is settled law in this state that in condemnation actions an appraiser for the other party may be called upon to testify. The fact that he had been, or was at the time, under contract to the city to appraise the property 'did not create a contractual or proprietary right' in either the city or the expert 'to suppress or withhold from evidence this expert's formed opinion.' State Highway Commission v. Earl, 82 S.D. 139, 143 N.W.2d 88.

However, as was held in the Earl case, 'The party calling such expert makes him his witness, therefore, the fact of prior employment or payment by the opposite party is not relevant or material.' We see little or no probative value in the admission of such evidence, but if any value exists it is 'outweighed by the evidentiary counterfactors of prejudice and creation of collateral issues.' Department of Public Works & Buildings v. Guerine, 19 Ill.App.3d 509, 311 N.E.2d 722, 725--6.

We recognize that evidence of previous employment may inadvertently develop during the process of laying appropriate foundation on direct examination or on cross-examination. In this case, however, the allowance of such comment in opening statements of counsel and in direct examination created the possibilities of prejudice and collateral issues immediately, and as a result tainted the proceeding ab initio. The trial court erred in allowing such conduct and testimony.

The remaining questions in this appeal require one principal determination, that is,...