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City of Mission Hills, Kansas v. Sexton

June 22, 2007


Appeal from Johnson district court; JAMES F. VANO, judge.


1. Granting a motion for a new trial filed pursuant to K.S.A. 60-259(a) is within the trial court's discretion and will not be disturbed on appeal unless there is a showing of abuse of that discretion.

2. A verdict will be set aside as contrary to law where, under the evidence, the verdict is contrary to the instructions given by the trial court. A new trial will not be granted on mere allegations. There must be evidence that the jury consciously conspired to undermine the jury process by ignoring the instructions.

3. When a party challenges a jury verdict as contrary to the evidence, the appellate court does not reweigh the evidence or pass on the credibility of the witnesses. If the evidence, when considered in the light most favorable to the party who prevailed in the court below, supports the verdict, the appellate court should not intervene.

4. Under K.S.A. 26-513(a), private property shall not be taken or damaged for public use without just compensation. In cases of a partial taking where only a part of a tract of land or interest is taken, K.S.A. 26-513(c) provides that the compensation and measure of damages is the difference between the fair market value of the entire property or interest immediately before the taking and the value of that portion of the tract or interest remaining immediately after the taking.

5. Fair market value is defined by K.S.A. 26-513(e) under the commonly understood definition: the amount in terms of money that a well-informed buyer is justified in paying and a well-informed seller is justified in accepting for property in an open and competitive market, assuming that the parties are acting without undue compulsion. Under the statute, the fair market value shall be determined by use of the comparable sales, cost, or capitalization of income appraisal methods or any combination of such methods.

6. K.S.A. 26-513(d) provides a nonexclusive list of factors that shall be considered to determine the amount of compensation and damage where it is shown that the factors apply. The factors are not to be considered as separate items of damages, but are to be considered only as they affect the total compensation and damage. Because the list is nonexclusive, any competent evidence bearing upon market value generally is admissible, including those factors that a hypothetical buyer and seller would consider in setting a purchase price for the property.

7. When an expert testifies regarding the damages caused when a governmental entity takes a temporary easement and opines that the difference in the fair market value of the condemned property before the taking and the fair market value after the taking is best measured by the rental value during the use of the easement and further opines that such a method takes into account the statutory factors of K.S.A. 26-513(d), the expert utilizes a methodology recognized by statute, and the expert's testimony complies with the Kansas definition of fair market value.

8. Where an expert utilizes a legally accepted methodology to value damages from the taking of a temporary easement, the question as to whether the legally acceptable methodology most appropriately measures fair market value under the facts of the case and any deficiencies in the expert's analysis can be explored through cross-examination. Ultimately, the weight to be given an expert's opinion is left in the hands of the jury. Without question, a factfinder can find one expert opinion more credible than another. It is not this court's duty to pass on the credibility of witnesses, including expert witnesses.

9. Relevance is the first consideration when the trial court decides whether to admit evidence and when the appellate court reviews the trial court's decision. Unless prohibited by statute, constitutional provision, or court decision, all relevant evidence is admissible. Evidence is relevant if it has any tendency in reason to prove any material fact. To establish relevance, there must be some material or logical connection between the asserted facts and the inference or result they are intended to establish. An appellate court reviews the determination of relevancy under an abuse of discretion standard. The party challenging the ruling bears the burden of showing an abuse of discretion.

10. Once relevance is established, evidentiary rules governing admission and exclusion may be applied either as a matter of law or in the exercise of the trial judge's discretion, depending on the contours of the rule in question. When the adequacy of the legal basis of a trial judge's decision on admission or exclusion of evidence is questioned, an appellate court reviews the decision de novo.

11. Landowners are entitled to full compensation for the actual rights acquired by the condemnor, not the rights actually used.

12. The condemnor is required in the verified petition to describe the nature of the interest to be taken, and the appraisers, after receiving written instructions from the court, are required to view and value the land taken, assess damages resulting from the taking, and file a report in the district court clerk's office in which the appraisers identify the interest taken and the damages resulting from the taking. It is from this report that an appeal is taken by a dissatisfied party.

13. The property rights taken by a condemnor are to be determined by the language in the petition for eminent domain and the appraisers' report. A condemnor bears the burden of drafting its petition to show the limitations in its taking.

14. Once the nature of the interest to be taken is identified in the petition and the appraisers' report, parol evidence will not be admitted for the purpose of establishing a lesser interest based on the condemnor's intended use. The rights acquired, not the intended use of those rights, are the basis for assessing landowners' damages.

15. Under K.S.A. 60-261, a new trial cannot be granted based upon an error in either the admission or the exclusion of evidence unless refusal to grant the new trial is inconsistent with substantial justice. If the error does not prejudice the substantial rights of a party, the error is harmless, must be disregarded, and does not afford a basis for reversal of a judgment.

16. An appellant has the burden to designate a record sufficient to establish the claimed error; without such a record, the claim of error fails.

17. An appellate brief may include an appendix, but that appendix is to consist of extracts from the record on appeal; an appendix cannot be used as a substitute for the record on appeal.

18. K.S.A. 26-513(d), which lists nonexclusive factors to consider in ascertaining the amount of compensation and damages, names convenience as a factor. The landowners' opportunity to use or access the property subject to temporary easements can be considered a convenience.

19. Courts employ a two-part test to evaluate alleged violations of a motion in limine: (1) Was there a violation of the order in limine, and (2) if the order in limine was violated, did the testimony substantially prejudice the defendant? The burden is on the party alleging a violation of the order in limine to show substantial prejudice.

20. Courts presume that a jury follows the trial court's jury instructions.

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


In this condemnation proceeding, the jury awarded landowners Ronald and Felicia Sexton $10,900 for the temporary partial taking of their property, via two easements, by the City of Mission Hills (City) for a sewer rehabilitation project. The Sextons contend that the trial court abused its discretion by denying their motion for a new trial. In raising this contention, they specifically argue that, in calculating the amount of compensation, the jury's verdict was contrary to the evidence presented at trial and contrary to Kansas condemnation law because it was based upon an expert opinion that used a flawed methodology not supported by Kansas law. The Sextons further assert that the trial court improperly admitted evidence regarding the City's actual use of the property easements and the limited scope of the taking. Finally, the Sextons contend they failed to receive a fair trial because the court erroneously admitted evidence and permitted arguments previously ruled inadmissible by the court in orders in limine.

We reject these contentions and affirm the jury verdict.


The City began the rehabilitation of Mission Hills Sanitary Sewer District No. 1 to meet various state and Johnson County, Kansas, standards so that the system could ultimately be transferred to the Johnson County wastewater system. The project encompassed the rehabilitation of 11,558 feet of sewer pipe and the repair or replacement of 136 manholes. Six hundred platted lots and 548 residences were within the sewer district being rehabilitated.

As part of the sewer project, the City condemned two temporary easements on the Sextons' property, an estate lot covering approximately 2.29 acres in Mission Hills, Kansas, so that the existing pipe and an existing manhole could be replaced. One easement was an access easement, consisting of a temporary road that enabled the City to move its equipment to the construction area. The second easement was a construction easement utilized to put in a new manhole and to rehabilitate the sewer line itself. The two easements covered approximately 5,242 square feet of the Sextons' property, and the duration of both easements was 1 year, running from August 4, 2005, until August 4, 2006.

The City placed mulch over the access easement and installed, per the Sextons' request, construction fencing around both easements. The amended condemnation petition required the City to replace any landscaping within the easements. The City was also required to repair or replace any "hardscape" or improvements such as sidewalks, walls, fences, lighting systems, and sprinkler systems.

George Eib, a consulting arborist and consulting landscape architect for the City, was called by the Sextons to testify. Eib recommended that the City require the contractor to lay 6 inches of mulch over the access easement area to prevent the compacting of tree roots. He testified that, because of the construction, a 7-inch diameter linden tree would be lost, as would five honeysuckle bushes measuring about 8-feet tall. Eib indicated that all landscaping features within the easements were being replaced.

Expert Valuations

Two experts testified regarding the valuation of the Sextons' property.

Ken Wooten, a certified Kansas appraiser and president and owner of a real estate appraisal company in Prairie Village, Kansas, testified on behalf of the Sextons. Wooten did not perform an actual appraisal of the property, but he testified that the fair market value of the Sextons' property before the temporary takings was $3,954,900, and the estimated total damages after the taking were $480,000.

Wooten evaluated the effect of the City's easements on the remainder of the Sextons' property and opined that heavy construction equipment would cause damage to trees outside of the easement areas. He also testified that the property's view was diminished by the construction equipment, workmen, orange fencing, and mulch. According to Wooten, the City's project negatively affected access to the property outside the easements for lawn maintenance. On another note, Wooten observed that the City's construction easement was located only 30 yards from the Sextons' master bedroom. This led him to conclude that the Sextons would have to invest in additional security measures, such as increased outside lighting, digital cameras, protective fences, and 24-hour security personnel during the active construction periods. Wooten also considered noise and pollution factors in his estimation of damages.

As for loss in marketability, Wooten estimated that it was reasonable to expect a 10, 12, or 15 percent adjustment in the sales price of the Sextons' property for a willing buyer in the marketplace on August 5, 2005.

Bernie Shaner, a professional appraiser in Overland Park, Kansas, testified on behalf of the City. He testified that he performed a "limited scope" appraisal on the land because, in his opinion, the house and the Sextons' property outside of the easement area were not impacted by the taking. Also, the parties agreed that Shaner would not appraise the Sextons' home and, instead, would use the value from certain county tax records.

To calculate the value of the Sextons' property immediately before the taking, Shaner first estimated the value of the land separate from the improvements. To do so, he used a comparable sales approach and performed a "bare ground" appraisal of vacant lots in Mission Hills, using six properties that had been purchased for the purpose of tearing down existing improvements and constructing new improvements. Shaner explained that he selected six properties that were among the most comparable to the Sextons' property and were recent in time and fairly similar in location and size. Because the properties were not identical to the Sextons' property, he made adjustments to the sales prices for differences in location and size. With these adjusted sales, Shaner estimated that the land value of the Sextons' property as of the date of the taking was $22 per square foot or $2,195,500 for the lot. He then used the value of the Sextons' home from the county tax records, $1,759,430, and added that amount to his estimated land value. Shaner concluded that the total value of the Sextons' property immediately before the taking was rounded to $3,954,900.

On the question of the value of the property immediately after the taking, Shaner first assigned a fair rental value to the easements taken by the City. He estimated that each temporary easement was rented at a 10 percent annual rate of return, so $2.20 per foot was the fair rental value of the easements for 1 year. Then, Shaner multiplied the area of each temporary easement by $22 per square foot times an annual rate of return of 9.48 percent. (Shaner explained that 9.48 percent was the 10 percent rate based on one lump sum rental payment paid in advance.) Under this formula, the rental value of the access easement was $8,306, and the construction easement rental value was $2,625, with a rounded-down total equaling $10,900.

Shaner calculated the value of the Sextons' property immediately after the taking by subtracting the value of the land ($2,195,500) from the rental value of the temporary easements ($8,306 and $2,625) and then adding to that figure the value of the improvements ($1,759,430). This totaled $3,943,999, which Shaner rounded up to $3,944,000. In Shaner's opinion, the amount of just compensation for the takings was $10,900, which was the difference between his calculated value of the Sextons' property before and after the taking.

The jury ultimately returned a verdict of $10,900 as just compensation to the Sextons for the City's taking of the two easements on their property. The Sextons filed a motion for a ...

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