State ex rel. State Highway Commission of Missouri v. Select Properties, Inc.

• Decision Date: 17 February 1981
• Docket Number: No. 41093,41093
• Citation: 612 S.W.2d 866
• Parties: STATE of Missouri ex rel. STATE HIGHWAY COMMISSION OF MISSOURI, Plaintiff- Respondent, v. SELECT PROPERTIES, INC., et al., Exceptions of Lambert Realty & Development Corp., Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 866

612 S.W.2d 866

STATE of Missouri ex rel. STATE HIGHWAY COMMISSION OF MISSOURI, Plaintiff- Respondent, v.SELECT PROPERTIES, INC., et al., Exceptions of Lambert Realty & Development Corp., Defendant-Appellant.

No. 41093.

Missouri Court of Appeals, Eastern District, Division Four.

Feb. 17, 1981.

John W. Koenig, Jr., Kirkwood, for plaintiff-respondent.

J. B. Carter, Clayton, for defendant-appellant.

SIMON, Judge.

The defendant, Lambert Realty and Development Corporation, appeals from a judgment in a condemnation proceeding wherein it was awarded $32,800.We affirm.

The State Highway Commission of Missouri instituted condemnation proceedings to acquire a 12,000 square foot parcel of land from the defendant for the widening of what is now North Hanley Road, together with temporary construction easements.The property acquired from the defendant was part of an 8.5 acre tract located on North Hanley Road about 500 feet south of Highway 70.The tract was improved with thirteen apartment buildings containing 208 units, known as Tamurai Apartments, parking areas, two swimming pools and landscaping.The part of defendant's tract acquired by plaintiff for the right of way was improved with a heavy oriental chain fence and ornamental trees and shrubs, and served as a "buffer" between the apartment complex and the roadway.As a result of taking part of defendant's tract for the widening of North Hanley Road, the road was closer to two of defendant's apartment buildings than previously.

Defendant's three points on appeal are (1) that the trial court erred in excluding certain testimony regarding defendant's inability to rent certain apartment units in the proximity of the new right of way; (2) that the trial court abused its discretion in failing to sustain defendant's objections to alleged prejudicial remarks made by plaintiff's counsel in his opening statement and closing argument; and (3) that the trial court made comments in the presence of the jury prejudicial to the defendant.

In reference to defendant's first point, the alleged error of the trial court occurred when the defendant called to the witness stand William Wiedman and Karen Vernon, each of whom was a tenant of the Tamurai Apartments at the time of trial.According to the defendant's offer of proof these individuals, along with other tenants, would testify that they were occupants of an apartment unit facing Hanley Road and that they"either refused to renew their lease or demanded a transfer to some other area within the complex from where they were...because of the conditions of North Hanley Road and the proximity of North Hanley Road to the two units in front of the complex."Defendant also indicated an intention to call the manager and a former manager of the Tamurai Apartments to the witness stand "who would testify many people refused to rent the units that were exposed to North Hanley, and that many people demanded that they be moved to other areas of the complex or indicated that they were refusing to renew their lease because of the conditions that existed after the completion of North Hanley Road."Defendant's efforts to elicit such testimony was thwarted at the instance of plaintiff's objection that the testimony was irrelevant, cumulative and would prejudice the jury.The trial court sustained the objection on the ground that reasons given by some individuals of why they refused to rent certain apartment units would involve subjective elements and could prejudice the jury.

Defendant argues that the proffered testimony was relevant in showing the impact of the highway widening as a burden on the remaining tract, and that its exclusion kept competent evidence concerning the increase in the vacancy rate from the jury, and made it "impossible" for the jury to assess market value after the taking.

Where a part of an owner's property is condemned, as here, he is entitled to receive as damages, the difference between the fair market value of the entire tract immediately before the date of the taking and the fair market value of the property remaining immediately after the taking.State ex rel. State Highway Commission v. Nickerson, 578 S.W.2d 916, 917(Mo. banc 1979).The admissibility of evidence in a condemnation case depends on whether it tends to help the jury in arriving at the issue of value and damages.State ex rel. State Highway Commission v. Texaco, Inc., 502 S.W.2d 284, 288(Mo.1973).The admission or exclusion of evidence in land cases is within the discretion of the trial judge and "errors in admission or exclusion of evidence will not result in reversal unless there is substantial and glaring injustice."Id. at 289.

We do not agree that the proffered testimony of the two tenants would have been helpful to the jury in determining the market value of the property after the taking.Their testimony amounts to nothing more than the subjective reasons why a few individuals did not want to rent units facing Hanley Road.At best, it would be speculative to infer from this testimony the proposition that no one would rent the units in question for the same reason.Thus, the trial court was well within its discretion in sustaining plaintiff's objections to this testimony.Furthermore, the excluded testimony of the apartment manager and former manager would do nothing more than parallel the ample evidence of the damage resulting from the partial taking and from the proximity of the apartment units to the newly widened road.For example, Lloyd Beare, President of Lambert Realty and Development Corporation, testified an increase in the vacancy rate occurred after the widening of the road.He also testified that the right of way affected his ability to rent units facing the road.Defendant's witness, James Curran, an expert in real estate appraisal, gave his opinion of the value of the land taken, the value of the improvements and the damage to the remainder.In addition, he gave his opinion of the fair market value of the entire apartment project before and after the taking.Also, a scaled drawing and...