State ex rel. Missouri Highway and Transp. Com'n v. Jacob

• Decision Date: 27 September 1994
• Docket Number: No. 64277,64277
• Citation: 887 S.W.2d 661
• Parties: STATE of Missouri, ex rel., MISSOURI HIGHWAY AND TRANSPORTATION COMMISSION, Plaintiff/Appellant, v. Norman L. JACOB, et al., Exceptions of Clarkson 242 Partnership, et al., Respondents/Defendants.
• Court: Missouri Court of Appeals

Page 661

887 S.W.2d 661

STATE of Missouri, ex rel., MISSOURI HIGHWAY AND TRANSPORTATION COMMISSION, Plaintiff/Appellant, v. Norman L. JACOB, et al., Exceptions of Clarkson 242

Partnership, et al., Respondents/Defendants.

No. 64277.

Missouri Court of Appeals,

Eastern District,

Division Three.

Sept. 27, 1994.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Oct. 31, 1994.

Application to Transfer Denied

Dec. 20, 1994.

Paul R. Sterrett, Senior Asst. Counsel, Mo. Hwy. & Transp. Com'n., Chesterfield, for appellant.

Jerome Wallach, Wallach Law Firm, St. Louis, for respondents.

CRANE, Presiding Judge.

Clarkson 242 Partnership (Owner) owned a parcel of land with two commercial buildings used as a chiropractic office, an insurance agency, and a sales agency at 242 Clarkson Road in the City of Ellisville, St. Louis County. On May 1, 1991 the Missouri Highway and Transportation Commission (Commission) permanently took 2,400 square feet of this property for the widening of Clarkson Road. The taking included some parking spaces. The Commission also took a temporary construction easement of 3,000 square feet. The court appointed Commissioners. Both parties filed exceptions to the Commissioners' award. After a trial on those exceptions, the jury awarded Owner $160,000 in damages. The Commission appeals, asserting errors in the admission and exclusion of evidence. We affirm.

For its first point the Commission asserts that the trial court erred in admitting testimony

regarding interpretation of the ordinances of the City of Ellisville to deny a new owner or tenant use and occupancy of the subject property after the taking, in that such denial of use and occupancy would constitute an unconstitutional taking of property rights without payment of just compensation, in violation of Article I, Section 26 of the Missouri Constitution.

In its brief the Commission specifically complains that Owner's expert witness, Michael Gartenberg,

testified that in the after condition, any change in use of the subject property would require "further review" by the City of Ellisville (T. 168). Gartenberg testified that a "buffer strip" would be required by the Ellisville ordinances because of the highway taking (T. 180), and that, because of the taking, the property was no longer in compliance with the City ordinances (T. 186), and that the solution for this nonconformance was to tear the front building down (T. 189-190).

Prior to this testimony the Commission voiced the following objection:

Your Honor, at this point in time I've got to make a constitutional objection on the basis that if, in fact, Mr. Gartenberg, as I believe he will, will testify that the city will not permit uses on the property which were permitted prior to the taking, that this is an unconstitutional taking, a taking without compensation. And on that basis, this testimony should not be allowed.

* * * * * *

Your Honor, if I may repeat that, constitutionally the city is not in a position to penalize an owner or any subsequent owner for property being taken by--under eminent domain, on a situation wherein the use remains the same. And on that basis I believe that this witness will be testifying to an unconstitutional taking by the city, and I don't believe that that is a proper foundation for expert testimony or any other kind of testimony.

* * * * * *

Your Honor, by requesting damages based upon the city determining that a use which continues on a piece of property can no longer be utilized without compensation by the city is, in fact, unconstitutional. And on that basis a request for damages on this basis is insufficient and should not be allowed.

The trial court denied the objection, but treated it as continuing.

The Commission seeks review of the trial court's order denying its objection to the admission of evidence. However, in making this objection in the trial court, the Commission did not specify what rule of evidence it was evoking and why that rule of evidence should exclude the expert's testimony. Objections to a question should be specific enough to inform the trial court what rule of evidence is being evoked and why that rule of evidence should exclude a responsive answer. Lindsey v. P.J. Hamill Transfer Co., 404 S.W.2d 397, 400 (Mo.App.1966). Where the grounds for objection are not made reasonably apparent, the trial court's ruling on the objection is unreviewable. Id.

In its brief the Commission cites no authority and provides no argument which addresses the admissibility of the evidence of which it complains. Rather, it cites cases relating to the constitutionality of certain types of...