State ex rel. Missouri Highway and Transp. Com'n v. Kuhlmann, 59358

• Decision Date: 02 June 1992
• Docket Number: No. 59358,59358
• Citation: State ex rel. Missouri Highway and Transp. Com'n v. Kuhlmann, 830 S.W.2d 569 (Mo. App. 1992)
• Parties: STATE of Missouri, ex rel., MISSOURI HIGHWAY AND TRANSPORTATION COMMISSION, Plaintiff/Respondent, v. Elyard J. KUHLMANN, et al., Defendants/Appellants.
• Writing for the Court: SMITH
• Court: Missouri Court of Appeals

Page 569

830 S.W.2d 569

STATE of Missouri, ex rel., MISSOURI HIGHWAY AND TRANSPORTATION COMMISSION, Plaintiff/Respondent, v. Elyard J. KUHLMANN, et al., Defendants/Appellants.

No. 59358.

Missouri Court of Appeals,

Eastern District,

Division Four.

June 2, 1992.

Dale L. Rollings, Kevin A. Suffern, Rollings, Gerhardt, Borchers, Stuhler, Carmichael & Kircher, P.C., St. Charles, for defendants/appellants.

Paul R. Ferber, Dist. Counsel, Kelly-Ann B. Radetic, Asst. Counsel, Rich Tiemeyer, Chief Counsel, Missouri Highway & Transp. Com'n, Kirkwood, for plaintiff/respondent.

SMITH, Presiding Judge.

Landowner appeals from a jury verdict and resultant judgment in this condemnation case. The Commissioners' award was for $200,000; the jury awarded damages of $120,000 for the partial taking of landowner's property. That verdict was within the range of damages established by the evidence. We affirm.

Landowner premises error on a number of evidentiary rulings by the trial court. First he asserts as error the refusal of the trial court to allow one Gaffney to express an opinion of the fair market value of the land taken before and after the condemnation. Gaffney was the son-in-law of the owner and the owner of a leasehold interest in the property. He was not qualified as an expert nor was he disclosed as an expert in pre-trial discovery. The thrust of landowner's contention is that Gaffney's long time familiarity with the property was sufficient to warrant his testimony because he demonstrated the same familiarity that the owner would possess. Evidence of opinion of land value in condemnation cases may be given by expert witnesses. A presumption is indulged that the fee owner of the land is an expert as far as the value of his land is concerned. Missouri Highway & Transportation Commission v. Menley, 778 S.W.2d 9 (Mo.App.1989) [1,2]. The presumption extends only to the fee owner and if he demonstrates at trial an absence of knowledge of the property or that his opinion is based on an improper standard then the presumption is rebutted and the testimony may be disallowed or stricken. Id. Any other witness with superior knowledge, information, or skill concerning the valuation of the property may be qualified as an expert and testify to his opinion of value. State ex rel. State Highway Commission v. Bloomfield Tractor Sales, Inc., 381 S.W.2d 20 (Mo.App.1964)[3-7]. Landowner did not qualify Gaffney as an expert on land value. The court did not err in refusing to allow Gaffney's testimony on the before and after values of the fee interest.

Next landowner premises error on the trial court permitting an expert witness for the Commission to give his opinion of the damages "when he was basing his opinion on plans different from those upon which the taking was based and the case was being tried". Due to a typographical error the petition for condemnation stated that the land to be acquired was 1.44 acres when in fact it was 1.36 acres. The expert made his computation on the lesser amount. That computation was an amount based on his opinion of the value per square foot. The trial court required that the expert testify to the damages on the basis of the larger acreage. To do so simply required that the expert multiply the square foot value by a different multiplier than his original computation. He did so causing a damage figure higher than his original computation. We find neither error nor prejudice in the trial court's ruling....