Adam Pener, as Personal Representative of the Estate of Alexander Gold, and as Trustee of the Alexander Gold Revocable Trust Dated 01/26/1994, Appellants,
Michael S. King, Secretary of Transportation for the State of Kansas, Appellee.
Under the Eminent Domain Procedure Act, K.S.A. 26-501 et
seq., in a partial taking case there are only two
issues: (a) the value of the entire property or interest
immediately before the taking; and (b) the value of that
portion of the land or interest remaining immediately after
ascertaining the amount of compensation and damage in an
eminent domain or condemnation proceeding, the cost of new
fences or loss of fences and the cost of replacing them with
fences of like quality are not to be considered as separate
items of damages but are to be considered only as they affect
the total compensation and damage.
3. In a
condemnation proceeding, the award will not be disturbed on
appeal from the district court as long as it is supported by
verdict in a condemnation proceeding must be within the range
of the opinion testimony admitted at trial.
5. In a
condemnation proceeding, the landowner's attorney fees
are statutorily provided for in two instances. One occurs
when the condemning authority abandons the proceedings after
a court-appointed appraiser award. The other occurs when the
condemning authority appeals a court-appointed appraiser
award to the district court and the jury renders a verdict
for the landowner that is greater than the appraiser award.
from Wyandotte District Court; R. Wayne Lampson, judge.
H. Bartels, of Polsinelli PC, of Kansas City, Missouri,
argued the cause, and Amy E. Morgan, of the same firm, was
with him on the briefs for appellants.
Timothy P. Orrick, of Orrick & Erskine, L.L.P., of
Overland Park, argued the cause, and Paul G. Schepers, of the
same firm, was with him on the brief for appellee.
an eminent domain proceeding initiated by the Kansas
Department of Transportation for a highway improvement
project. Adam Pener was the trustee and personal
representative of the trust and estate that owned the
condemned property at the time of the taking. He challenges
the damages award entered by the district court after a bench
trial, claiming the court gave insufficient weight to the
replacement value for a fence and to a comparable sale when
it calculated the property's value. Pener also argues the
district court should have awarded him attorney fees and
expenses. We affirm.
and Procedural Background
taking involved three tracts located in Wyandotte County that
were owned by two entities for which Pener is the
fiduciary-the Alexander Gold Revocable Trust dated
01/26/1994, and the estate of the late Alexander Gold. KDOT
condemned permanent highway right of way easements covering
142, 858 of these tracts' approximately 338, 000 total
KDOT commenced the condemnation, it offered to buy the right
of way for $104, 930, but an agreement could not be reached.
KDOT filed its petition under the Eminent Domain Procedure
Act, K.S.A. 26-501 et seq. The district court
appointed an appraisers' panel pursuant to the act, and
the panel determined damages totaling $195, 500. Unsatisfied,
Pener invoked the landowners' statutory rights to trial
in the district court. See K.S.A. 2016 Supp. 26-508(a). The
parties tried the case to the court, rather than a jury.
witnesses testified about the property's value before and
after the taking. The district court found the damages from
the taking were $295, 702. The court also denied Pener's
claim for attorney fees and expenses.
timely appealed. Jurisdiction is proper. K.S.A. 2016 Supp.
26-504 ("Appeals to the supreme court may be taken from
any final order under the provisions of [the Eminent Domain
District Court's Damages Award
argues the district court erred in calculating the damages
award because it failed to include the replacement cost for a
security fence that was part of the taking and because it
gave insufficient consideration to a comparable sale. We
reject both claims.
district court properly considered the cost to replace
additional facts put this question into better perspective.
During the negotiations leading up to the filing of the
eminent domain action, KDOT represented that a separate offer
of "[c]ompensation to cure any damages caused by the
project, including fencing replacement" had been made to
Shostak Iron and Metal Co., Inc., which was leasing the
tracts. After the appraisers' panel entered its award,
Shostak asked for apportionment. The district court
ultimately dismissed Shostak's claims based on lease
language in which it agreed not to share in any condemnation
bench trial, Pener testified new fencing was required on the
tracts' new, post-taking property line. Based on an
exhibit KDOT prepared for the appraisers' panel, in which
KDOT represented its damage estimate included $65, 720 to
replace fencing, Pener believed the district court's
damage award should include that additional amount. He
claimed KDOT "stipulat[ed] to" this figure. Pener
also said he believed the Shostak lease would require the
existing fence to be replaced and that security was important
to the property's use before its eventual redevelopment.
Pener's expert witness testified he valued the property
after the taking by reducing his appraisal an additional $70,
000 to replace the fence, which he considered necessary.
expert testified the fence taking resulted in only an $11,
000 diminution in the value after the taking. Therefore, he
believed it would be inappropriate to spend $70, 000 to
replace the fence because that sum exceeded the contributory
value of the fence section to the property as a whole,
i.e., $11, 000. A KDOT staff attorney testified KDOT
negotiated the "compensation for [the] cost to
cure" with Shostak and had agreed to present the
settled-upon $65, 720 amount to the court-appointed
appraisers. He did not believe he discussed the issue with
Pener at the time. He acknowledged KDOT agreed at the
administrative hearing to pay the $65, 720 cost of replacing
the fence by including the amount as an item in its
hearing this testimony, the district court found the
"fence [was] not going to add $70, 000 worth of
value." Accordingly, it used KDOT's expert's
approach and found the fence's taking resulted ...