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Mooney v. City of Overland Park

March 23, 2007

HERBERT M. MOONEY AND ENID G. MOONEY, APPELLANTS,
v.
CITY OF OVERLAND PARK, KANSAS, A MUNICIPAL CORPORATION, APPELLEE.



Appeal from Johnson district court; J. CHARLES DROEGE, judge pro tem.

SYLLABUS BY THE COURT

1. In an eminent domain proceeding, the district court makes the initial determination of whether proffered comparable sales evidence is relevant to the value of the condemned land. The court considers such factors as whether the prior sale was a bona fide and voluntary arm's length transaction; whether the prior sale was too remote in time; and whether the conditions of the previously sold property and surrounding area are sufficiently similar to the condemned land.

2. The fact that a purchaser of land possesses the power of eminent domain does not, by itself, support the inference that the purchase price exceeded the land's fair market value.

3. To be relevant in an eminent domain proceeding, the landowner's opinion of the separate value of the land, without improvements, must have some material or logical connection to the fair market value of the property as a whole, including improvements.

4. A landowner is a competent witness to testify as to the value of his or her property in an eminent domain proceeding. However, as with all expert testimony, the landowner's testimony must be helpful to the jury.

5. When the owners of land subject to an eminent domain proceeding hire an appraiser to assess the value of the condemned land and submit the ensuing written appraisal to the court-appointed appraisers, the valuation opinion is a statement attributable to the landowners and is admissible as an admission in a subsequent trial de novo in the eminent domain proceedings.

The opinion of the court was delivered by: Johnson, J.

Affirmed.

Herbert M. Mooney and Enid G. Mooney (landowners) appeal the jury's determination of the value of their property which was taken by the City of Overland Park (City) via its eminent domain powers. The landowners challenge the district court's exclusion of their proffered testimony about a prior sale of a portion of their land and the court's admission of testimony about a prior appraisal. Finding no reversible error, we affirm.

The property at issue is a tract of land in Overland Park of approximately 1.02 acres, which was improved with a building used by the landowners to operate a specialized home electronics equipment business known as Accent Sound. The City took the property in September 2003 through a condemnation action.

Apparently in anticipation of the taking, landowners hired John Schmidt to appraise the value of their property. He opined the property should be valued at $700,000. Landowners submitted Schmidt's written appraisal to the court-appointed appraisers in the condemnation action. The court-appointed appraisers set the value of the condemned property at $615,000.

Landowners appealed the valuation issue to the district court, where they received a de novo jury trial. The landowners presented the expert testimony of F. Lee Jones, whose total appraised value for the property was $887,000. The City called two appraisers; Bernie Shaner valued the property at $535,000, while Arthur Donoho valued it at $615,000.

During his direct testimony, Herbert Mooney was not permitted to testify that, in 2001, landowners had sold a small tract in the corner of their property to Southwestern Bell Telephone Company for the installation of a DSL switch. Mooney proffered that Southwestern Bell had paid approximately $10.50 per square foot for the corner piece.

On cross-examination of Mooney, the City's counsel was permitted to elicit that landowners had previously retained Schmidt to appraise the property and that Schmidt's valuation was $700,000, as opposed to the landowners' trial expert opinion of $887,000. On redirect, Mooney testified ...


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