Security Nat. Bank v. City of Olathe, 49179

• Decision Date: 20 January 1979
• Docket Number: No. 49179,49179
• Citation: 589 P.2d 589,225 Kan. 220
• Parties: SECURITY NATIONAL BANK, Appellee, v. CITY OF OLATHE, Kansas, et al., Appellants.
• Court: Kansas Supreme Court

Page 589

589 P.2d 589

225 Kan. 220

SECURITY NATIONAL BANK, Appellee, v. CITY OF OLATHE, Kansas, et al., Appellants.

No. 49179.

Supreme Court of Kansas.

Jan. 20, 1979.

Syllabus by the Court

1. Under the rules of this court in effect since 1967, a notice of appeal, filed subsequent to the announcement by the trial judge of a judgment to be entered, but prior to the actual entry of judgment, is effective if it identifies the judgment from which the appeal is taken with sufficient certainty to inform the prevailing party below of the rulings to be reviewed on appeal.

2. The grant or denial of a motion for continuance rests within the sound discretion of the trial court, and will not be disturbed on appeal in the absence of a clear showing of abuse.

3. Under the provisions of K.S.A. 12-704, a planning commission must annually review its comprehensive plan for the development of the city for the purpose of determining if any portion of the plan has become obsolete, and the commission must make an annual report to the governing body.

4. When a comprehensive plan has not been regularly reviewed as required, obvious and important changes in the area, including increased traffic, the construction of highway improvements such as cloverleaf interchanges, the development of the adjacent area, and the abandonment of long standing plans to create a lake and park in the immediate vicinity, may be considered in determining whether the comprehensive plan retains vitality.

5. In an appeal from the judgment of a district court finding a city's refusal to rezone certain land unreasonable, and ordering the rezoning, the record is examined, all points raised are considered, and the judgment is affirmed.

Allen R. Slater of Haskin, Hinkle & Slater, Olathe, argued the cause, and Frank H. Jenkins, Jr., Olathe, was with him on the brief for appellants.

Charles S. Schnider, Shawnee Mission, argued the cause and was on the brief for appellee.

MILLER, Justice:

This is an appeal by the city of Olathe from an order of the Johnson district court finding the city's refusal to rezone certain land unreasonable, and directing the city to grant the requested rezoning. The Security National Bank of Kansas City, Kansas, as trustee, manages the land for the trust which owns it. The bank was the successful party below.

The bank first challenges our jurisdiction to hear this matter. It contends that the notice of appeal was prematurely filed, and no notice of appeal was filed after the entry of judgment. The trial court filed a memorandum decision on December 10, 1976, in which memorandum the court directed the bank's attorney to prepare an appropriate journal entry. The notice of appeal was filed January 5, 1977; the journal entry of judgment was filed January 24, 1977. The bank contends that since the notice of appeal was filed prior to January 10, 1977, the appeal is controlled by the rules of this court then in effect; and that our present rule relating to premature notices of appeal, rule 2.03, has no application to this proceeding since the rule did not become effective until January 10, 1977, in accordance with prefatory rule No. 1.01 (220 Kan. xxix). The bank bases this contention on two earlier cases of this court, Roe Village, Inc. v. Board of County Commissioners, 195 Kan. 247, 403 P.2d 970 (1965), and Guerrero v. Capitol Federal Savings & Loan Ass'n, 197 Kan. 18, 415 P.2d 257 (1966). While it is true that rule 2.03 was not effective at the time notice of appeal was filed in this case, our earlier rule No. 16, 201 Kan. xxvii, adopted effective July 12, 1967, was applicable. That rule is the predecessor of present rule 2.03, and is almost identical. Rule 16 was in full force and effect at the time the notice of appeal in this action was filed. It provides in effect that a notice of appeal, filed subsequent to the announcement by the judge of a judgment to be entered, but prior to the actual entry of judgment, shall be effective if it identifies the judgment from which the appeal is taken with sufficient certainty to inform the prevailing party below of the rulings to be reviewed on appeal. The bank does not contend that the notice was insufficient in this regard. We conclude that the notice of appeal was timely filed, and this court has jurisdiction to hear and determine this appeal.

The issues on appeal are whether the court abused its discretion in refusing to grant the city's motion for a continuance of trial; whether the court erred in permitting one of the landowner's witnesses, Mr. Butler, to testify as an expert in the field of land-use planning, and in receiving plaintiff's exhibit No. 17 into evidence; and whether the city's denial of the application to rezone was reasonable.

Some ten or twelve days before trial, the city served interrogatories upon counsel for the bank, in an effort to learn the substance of the proposed testimony by the bank's expert witnesses, Mr. Ogburn and Mr. Butler. The city then requested a continuance until it could get the information requested in those interrogatories. The trial judge ordered the bank's counsel to provide that information orally to the city's counsel, and the judge overruled the request for continuance.

The grant or denial of a motion for continuance rests within the sound discretion of the trial court, and will not be disturbed on appeal in the absence of a clear showing of abuse. Fouts v. Armstrong Commercial Laundry Distributing Co., 209 Kan. 59, 64, 495 P.2d 1390 (1972); and see K.S.A. 60-240(B ), and the cases annotated under that section. No demonstrable prejudice or harmful surprise has been shown in the record before us. In the absence of a contrary showing in the record, we must assume that appellant was substantially informed as to the substance of the expert testimony, and that the experts were fully and fairly cross-examined by counsel.

The city contends that the trial court erred in permitting Mr. Butler to testify as an expert, primarily for the reason that Butler had no degree in land-use planning. He has a degree in civil engineering, and he is president of a firm which does comprehensive land-use planning for many communities. He has been involved in the preparation of these plans, and his testimony discloses a wide and varied background in the field. We conclude that the trial court did not abuse its discretion in permitting the witness to testify as an expert in land-use planning.

Exhibit 17 is a target of the city's next point on appeal. The city contends that the document, a written petition asking that the city of Olathe create a benefit district to pave 119th Street in the area of the land here involved, was not properly identified and was hearsay. The witness testified that he was present at the meeting of the Olathe City Commission when the petition to create a benefit district was presented. The court was advised that the petition was not granted, and the district was not formed. Even if the evidence was hearsay, and we note that the document might come under some of the exceptions to the hearsay rule, no reversible error has been shown. There is no indication that prejudice resulted, and considering the collateral nature of the evidence, the error, if any, was harmless.

We turn now to the major claim of error that the trial court's finding of unreasonableness is contrary to the clear, compelling weight of the evidence; it was in fact reasonable. The trial judge summarized much of the evidence in his memorandum decision, as follows:

"MEMORANDUM DECISION

"2. That on March 15, 1976, the Security National Bank filed with the City of Olathe an application for rezoning requesting that (a certain tract of land)

commonly described as the Southeast corner of 119th and Blackbob in Olathe, Johnson County, Kansas, be rezoned from its present agricultural zoning to the following:

                RP-3 (Planned Garden
                 Apartments)                   19.9 acres
                RP-1 (Planned Single Family
                 Residential)                   9.3 acres
                Rights-of-Way and Utility
                 Easements                      3.24 acres
                MP-1 (Planned-Restricted-
                 Industrial)                   43.5 acres
                                               -----------
                  Total ...................... 74.41 acres
                

"3. That this request was designated as RZ 9-76 by the City of Olathe and was the subject of a hearing before the Olathe Planning Commission on April 12, 1976.

"4. The application proposed to develop said property a) for a light industrial park on the west, 43.5 acres; b) garden or multi unit apartments adjacent thereto to the east, 19.9 acres; and c) single family dwellings on the rest of said property, 9.3 acres.

"6. The City of Olathe had adopted a comprehensive plan which had been updated for the area surrounding 119th and Blackbob by three land use studies entitled, Section Studies 2, 3 and 4, which were introduced into evidence as plaintiff's Exhibits 9, 10 and 11. The southeast corner of 119th and Blackbob is presently being used for agricultural purposes as is the land to the immediate south and to the east. The land on the southwest corner of 119th and Blackbob has a mixture of agricultural, residential and light industrial uses. The northwest corner of 119th and Blackbob has a mixture of industrial, commercial and two residential uses. The area west of this intersection has been built up and is now used partially for light industry, commercial and residential purposes. The northeast corner of 119th and Blackbob is presently zoned for industrial and there is one industrial building which fronts on Blackbob Road. To the east of this industrial tract is the property owned by Mr. Speer and there is a farm residence and farm buildings on this ground which are presently occupied. Further east on 119th Street, there are scattered residences. The Johnson County Community College is located approximately 11/2 miles to the northeast and the county park district owns approximately 80 acres of land immediately south of...