Land Clearance for Redevelopment Authority of the City of St. Louis v. James Townsend Osher

• Court: Missouri Court of Appeals
• Decided: April 21, 2020
• Docket: ED107081
• Status: Published

Opinion

In the Missouri Court of Appeals Eastern District DIVISION TWO

LAND CLEARANCE FOR ) REDEVELOPMENT AUTHORITY OF THE ) No. ED107081 CITY OF ST. LOUIS, ) ) Respondent, ) Appeal from the Circuit Court of ) the City of St. Louis vs. ) ) Honorable David L. Dowd James Townsend Osher, ) ) Appellant. ) Filed: April 21, 2020

Introduction

James Townsend Osher (“Appellant”) appeals from the trial court’s judgment awarding

him $573,000 as compensation for the Land Clearance Redevelopment Authority (“LCRA”)

condemning his property (“Property”) in the City of St. Louis and assessing $21,207.13 in costs

against him. Appellant brings eight points on appeal. First, Appellant argues the circuit court

erred in failing to assign his case to a general division once exceptions were filed. Second,

Appellant argues the circuit court erred in denying his request for a new judge. Third, Appellant

argues the circuit court erred in assessing costs against him. Fourth, Appellant argues the circuit

court erred in denying his request for a homestead allowance. Fifth, Appellant argues the circuit

court abused its discretion when it excluded evidence of the amount Appellant paid a leaseholder for the extinguishment of its leasehold interest after the Property’s condemnation. Sixth,

Appellant argues the circuit court abused its discretion when it excluded photographic evidence

of Appellant’s experience in the construction and hotel industry, excluded photographic evidence

of recent developments in the City of St. Louis, and criticized him in front of the jury. Seventh,

Appellant argues the circuit court abused its discretion when it admitted photographs offered by

LCRA depicting his Property after the date of the taking. Lastly, Appellant argues the circuit

court erred in allowing LCRA to cross-examine one of Appellant’s witnesses regarding an

alleged fraudulent tax credit scheme to purchase the Property and other properties and to call a

witness to give opinion testimony regarding the same. We affirm.

Factual and Procedural Background

Pre-Trial

In December 2015, LCRA brought a condemnation action to take Appellant’s Property,

known as the “Buster Brown Building,” located at 1516-1530 North Jefferson Avenue in the

City of St. Louis, and over 500 other properties, to construct a new facility for the National

Geospatial-Intelligence Agency (“NGA”). The case was initially assigned to Judge David Dowd

in Division 2 of the St. Louis City Circuit Court, who set a condemnation hearing. On December

30, 2015, the then-presiding judge of the St. Louis City Circuit Court issued an order

(“December 2015 Order”) stating Appellant’s case was “specially assigned to Division 2 for all

further proceedings.” Appellant was served with process on March 18, 2016. On April 4, 2016,

a commissioners’ hearing was held to determine the fair market value of the Property, which

neither Appellant nor his attorney attended. In May 2016, the commissioners awarded

$817,589.59. LCRA deposited the award, with interest, in the circuit court and took title to the

Property. LCRA filed its exceptions to the commissioners’ award on May 31, 2016, and

2 Appellant filed his exceptions to the commissioners’ award on June 13, 2016. On July 7, 2016,

LCRA took the Property.

In November 2016, Appellant requested the case be transferred to Division 1 and

assigned to a trial judge under Local Rule 66.3.11 because exceptions were filed in May and June

2016. In December 2016, Appellant again requested the case be transferred to Division 1 and

assigned to a trial judge under Local Rule 66.3.1, seeking clarification from the circuit court

regarding the applicability of Local Rule 66.3.1 in condemnation proceedings. The circuit court

denied Appellant’s requests, stating “trial of the exceptions had been previously assigned to

Judge David Dowd on December 30, 2015.” On February 8, 2017, Appellant requested a change

of judge under Supreme Court Rules 55.01(b) and 55.01(d),2 which the circuit court denied.

Appellant then filed a Writ of Prohibition in this Court and the Missouri Supreme Court

challenging the circuit court’s denial of his requests for pre-assignment under Local Rule 66.3.1

and change of judge.3 Both writs were denied. In September 2017, Appellant requested Judge

Dowd recuse himself, claiming Judge Dowd was “too invested in the Condemnation Case to

1 All Local Rule references are to the St. Louis City Circuit Court’s Local Rules (2015), unless otherwise indicated. Local Rule 66.3.1 provides:

In condemnation proceedings pursuant to general statutes where exceptions to the commissioners’ report are filed, the case shall be transferred to Division 1 for assignment to a general division in the same manner as any other civil jury case. The trial shall be handled as to each sub-file in the same manner in which other civil jury causes are handled. 2 All Supreme Court Rule references are to the Missouri Supreme Court Rules (2015), unless otherwise indicated. Appellant’s motion requesting a change of judge relied on Supreme Court Rule 55.01. However, Supreme Court Rule 55.01 governs the pleadings required in a case, not a change of judge. See Supreme Court Rule 55.01 (“There shall be a petition and an answer; and there shall be a reply to a counterclaim denominated as such; an answer to a cross-claim, if the answer contains a cross-claim; a third-party petition, if a person who was not an original party is summoned under the provisions of Rule 52.11; and there shall be a third-party answer, if a third-party petition is served. A defense consisting of an affirmative avoidance to any matter alleged in a preceding pleading must be pleaded. No other pleading shall be required except as ordered by the court.”). To the extent Appellant relies on Supreme Court Rule 55.01 in moving for a change of judge, he is mistaken. Supreme Court Rule 51.05 governs requests for a change of judge. See Supreme Court Rule 51.05.

3 See State ex rel. Osher v. Mullen, ED105463 and State ex rel. Osher v. Mullen, No. SC96500.

3 have the appearance of independent judgment in the Exception Case” and exhibited an “inherent

bias” favoring LCRA. Appellant’s request for recusal was also denied.

Trial

In May 2018, the exceptions filed by LCRA and Appellant proceeded to a jury trial,

which lasted seven days.

Appellant’s Evidence

Appellant testified on his own behalf. He testified he began renting the Property in 1993

and bought the Property in 1996 for $200,000. Appellant testified the Property’s highest and

best use was for redevelopment as a boutique hotel and the Property was worth $5.5 million on

the date of the taking. Appellant testified he asked for the Property to be registered in the

National Historic Registry in 2005 to “sav[e] the structure if anything should ever happen.”

Appellant testified the Property was valuable to himself, the City, and the neighborhood because

of its history. Appellant sought to admit photographic evidence of his experience in the

construction and hotel industry and nearby developments in the City of St. Louis during his

testimony, but the trial court excluded such evidence.

Appellant also testified regarding an earlier sale of the Property from JTO, LLC (“JTO”),

a company Appellant formed, to NorthSide Regeneration, LLC (“NSR”), a company owned by

Paul McKee, for $3.75 million in 2011 (the “2011 Sale”). Appellant testified he transferred title

to the Property to JTO. He testified NSR purchased the Property from JTO in an arms-length

transaction. He testified the sale was structured as a “sale-leaseback” or “triple net lease,” where

NSR would own the Property but lease the Property to another company called Wilco Leasing,

which was created by Appellant’s then-wife. Under the triple net lease, Wilco Leasing would

pay all insurance, taxes, repairs, and utility bills and NSR would collect $375,000 in rent

4 payments per year. Appellant testified he self-financed the transaction and NSR agreed to pay

him $3.75 million over five years at a 10% interest rate. Appellant would retain possession of

the Property. He testified he did not consider the $3.75 million purchase price inflated.

On cross-examination, Appellant testified he received no payment from NSR on the

closing date. He testified he knew McKee was going to receive “a lot” of tax credits for NSR’s

$3.75 million purchase of the Property.4 He testified he could not recall an email he sent to NSR

in November 2011 that stated NSR owed him a “[o]ne time principal payment of 50 percent of

tax credits in Q1 2012.” Appellant testified he received $591,000 from NSR in January 2012 but

denied the source of the $591,000 was tax credits. Appellant testified the Department of

Economic Development disqualified the tax credits it previously granted McKee in March 2013

and all payments from NSR to JTO stopped in March 2013. Appellant testified he received

$733,000 from NSR as of March 2013. Appellant agreed he and McKee thereafter “unwound”

the 2011 Sale and conveyed the Property back to Appellant. On re-direct examination, Appellant

testified he did not recall the Department of Economic Development disapproving of the owner-

financed, sale-leaseback structure of the transaction between JTO and NSR.

Appellant also sought to testify about a settlement he entered with AT&T Mobility

(“AT&T”), a company that rented a space for a cell tower on the Property’s roof, after the

Property was condemned. Appellant sought to testify he paid AT&T $65,000 to resolve any

claims arising from the termination of AT&T’s lease with Appellant due to the Property’s

4 Appellant, McKee, and various other witnesses testified that, in 2007, the General Assembly enacted the “Distressed Areas Land Assemblage Tax Credit Act (“DALATC”). See § 99.1205 (2007). The DALATC provided that developers who purchased land in an economically distressed area could apply to the Department of Economic Development to gain access to tax credits, which would pay for “an amount equal to fifty percent of the acquisition costs, and one hundred percent of the interest costs incurred for a period of five years after the acquisition of an eligible parcel.” § 99.1205.3. The DALATC provided the funds generated from the use of the tax credit must be used for redevelopment activities in the economically distressed area. § 99.1205.2(b)(a).

5 condemnation and Appellant owed AT&T nothing further. The circuit court disallowed this

testimony, stating “I think it is a matter that can be handled after the verdict in this trial.”

Appellant next called William Otto Spence, his appraiser, as a witness. Spence testified

he conducted a lengthy inspection of the Property four times but observed the Property on

several other occasions. Spence testified the fair market value of the Property at the time of the

taking was $4.93 million. Like Appellant, Spence testified the highest and best use of the

Property was for conversion into a “lifestyle or boutique hotel.” In valuing the Property, Spence

considered the 2011 Sale price of $3.75 million. Spence testified he met with McKee to discuss

the 2011 Sale. He testified McKee told him the sale was conducted at arms-length and

represented the market value of the Property. Spence testified the 2011 Sale was not a “sham

sale” and he considered the source of NSR’s funding from tax credits irrelevant to his valuation

of the Property. Spence testified he based his appraisal of the Property upon what was occurring

in the Property in 2016 before Appellant moved out. He explained his appraisal included some

photographs taken of the Property after the date of the taking because Appellant requested he

wait until Appellant moved out of the Property to take photographs. Spence also based his

valuation, in part, on the Property’s historic significance and its status in the National Historic

Registry.

Appellant also called McKee as a witness. McKee testified NSR purchased the Property

from JTO in 2011 for $3.75 million with the triple net lease structure Appellant described in his

earlier testimony. He testified he received tax credits from the 2011 Sale from the Department of

Economic Development, but they were later denied. McKee testified NSR “unwound” the

transaction with JTO after NSR paid JTO approximately $700,000. McKee testified the State

asked him and Appellant to unwind the transaction between NSR and JTO. On

6 cross-examination, McKee denied he would have been willing to overpay for the Property if he

got 50% of the sale price back in tax credits. McKee also testified NSR entered into other

transactions with Appellant to purchase other properties in the City of St. Louis. McKee testified

these other transactions involved a million-dollar purchase price, no money exchanging hands at

the closing, and a large payout of tax credits.

LCRA’s Evidence

LCRA called Laura Costello, the Director of Real Estate for the St. Louis Development

Corporation, as a witness. Costello testified she inspected the Property in September 2016. She

testified she saw chipped paint, nonfunctioning windows, and holes in the floor during her

inspection. Costello admitted her inspection took place after the date of the taking. LCRA

admitted photographs of Costello’s inspection of the Property into evidence. Costello testified

she never instructed McKee to unwind the transaction between NSR and JTO.

LCRA also called Kevin Schoenborn, an environmental company project manager, as a

witness. Schoenborn testified he inspected the Property in March 2017 after Appellant moved

out. He testified his inspection revealed damage around the skylights, chipped paint,

nonfunctioning windows, a spongy roof, and tuck pointing issues. He also testified he observed

the Property had poor structural integrity.

LCRA also called Tom Mueller as a witness. Mueller testified he previously owned the

Property and sold it to Appellant in 1996. Mueller testified he saw the inside of the Property

after Appellant moved out. He testified the Property had no chipped paint, non-functioning

windows, or water damage before he sold it to Appellant. Mueller testified the Property was not

in better condition than when he sold it to Appellant.

7 LCRA called John Neff, its appraiser, who testified the fair market value of the Property

at the time of the taking was $573,000 and the Property’s highest and best use was as a

warehouse. He testified he inspected the building in January and September 2016 and found it

was in fair to average condition. He agreed with Schoenborn the Property had poor structural

integrity. Neff testified the fact the Property belonged to the National Historic Register did not

factor into his appraisal. LCRA also called several expert witnesses who testified the Property’s

highest and best use was not for a hotel, as it had a poor location that experienced little traffic

and would cost between $200,000-400,000 per room to convert the Property into a hotel.

Lastly, LCRA called Sallie Hemenway, the Division Director at the Missouri Department

of Economic Development, as a witness to discuss the 2011 Sale and the sales of other properties

between NSR and Appellant. Hemenway testified the State initially issued tax credits to McKee

for his acquisition of the Property in the 2011 Sale. Hemenway testified the State rescinded the

tax credits previously granted for the 2011 Sale after discovering the improper owner-financed,

sale-leaseback structure of the transaction between JTO and NSR.

Jury Verdict and Homestead Allowance

The jury returned a verdict awarding Appellant $573,000, the value suggested by LCRA;

$244,589.59 less than the commissioners’ award. Following trial, Appellant asked the circuit

court to apply a homestead allowance under section 523.0395 to increase the jury’s verdict

because he alleged the Property was his primary residence. The parties waived an evidentiary

hearing on the homestead allowance issue and filed a Joint Statement of Facts containing a

stipulation of the evidence that would have been presented at a hearing. The Joint Statement of

5 All statutory references are to RSMo (2015), unless otherwise indicated.

8 Facts asked the circuit court to “determine the issues based upon the evidence, the evidence

adduced at trial, and the arguments of counsel.”

The parties stipulated Appellant would have testified as follows. He used the fourth floor

of the Property, which included a residential loft, as his primary residence since the summer of

2015. From 2005 until the summer of 2015, his primary residence was in Florida. His

residential loft in the Property was not in violation of any zoning laws. He did not believe he

needed a permit to live in the Property. He filed state income taxes in Missouri in 2015 and

2016: filed a city earnings tax in Missouri in 2015 and 2016; registered to vote in Missouri in

2015; obtained a Missouri non-driver’s license because he maintained a commercial driver’s

license in Florida; and listed the Property’s address on his health and car insurance.6 Appellant

did not own the Property when he moved into it in the summer of 2015 or when LCRA sent NSR

a sixty-day notice expressing its intent to acquire the Property by eminent domain in November

2015. He owned the Property only after NSR and JTO agreed to “unwind” the 2011 Sale and

grant title to Appellant. In the closing documents memorializing the “unwind” of the 2011 Sale,

Appellant listed his Florida address as his mailing address.

When Appellant moved to the Property in 2015, he did not abandon his Florida home or

certain aspects of his Florida residency. He kept his Florida driver’s license and renewed it in

November 2017. He listed his Florida address as his home address on his 2014 Federal Income

Tax Return, which was filed in September 2015 while he claimed to live in the Property. The

Property was zoned for industrial use and was not approved for residential use. The City of St.

Louis never issued an occupancy permit for anyone to reside at the Property. Appellant was

aware the City of St. Louis’ zoning laws prohibited him from living at the Property, but he

6 Appellant also produced these documents, and others, as exhibits and attached them to the Joint Statement of Facts.

9 thought it was legal for him to do so because he was a security guard at the Property. However,

there is no “security guard” exception in the City of St. Louis’ Municipal Code. From July 2015

to January 2017, he repeatedly left town and spent more time in Florida than Missouri.

The parties also stipulated Costello would have testified she regularly drove by the

Property during the times Appellant claimed to reside there but saw no indication Appellant

occupied the Property. She inspected the Property in September 2016 and observed some

appliances on the fourth floor were not plugged in to any power source. The parties also

stipulated Jennifer Kaniecki, a Relocation Specialist with Development Resource Partners, LLC,

would have testified Appellant never provided her with any proof he was a full time resident at

the Property and, in her opinion, if Appellant ever did reside in the Property, he did so

purposefully to attempt to obtain a homestead allowance and/or other relocation benefits.

After considering the evidence presented by both parties, the circuit court denied

Appellant’s request for a homestead allowance, finding the Property was “not a dwelling within

the meaning of §523.039”; “[Appellant]’s testimony that the [Property] was his primary place of

residence [wa]s not credible”; and “the facts lead to the conclusion that the [Property] was not

his primary place of residence.”

Assessment of Costs

Following trial, LCRA also filed a Bill of Costs, which asked the circuit court to tax costs

incurred after the commissioners’ award was entered against Appellant. LCRA’s Bill of Costs

requested $21,207.13 be taxed against Appellant “pursuant to Missouri Supreme Court Rule

77.01.”7 Appellant opposed LCRA’s Bill of Costs, arguing Supreme Court Rule 77.01 did not

7 Supreme Court Rule 77.01 provides: “In civil actions, the party prevailing shall recover his costs against the other party.”

10 apply in condemnation cases and Supreme Court Rule 86.098 controlled instead. Appellant

argued, under either Rule, LCRA failed to justify its request that costs be taxed against

Appellant. The circuit court ordered Appellant to pay costs in the amount of $21,207.13.

On July 18, 2018, the circuit court entered judgment on the verdict.

Appellant appeals.

Discussion

Point I: Assignment to a General Division After Filing Exceptions

Appellant’s first point argues the circuit court erred in failing to assign his case to a

general division once exceptions were filed. He argues Local Rule 66.3.1 mandates that, once

exceptions to the commissioners’ report are filed, the circuit court must transfer the case to

Division 1 for assignment to a general division. He argues the circuit court’s December 2015

Order specially assigning the case to Judge Dowd was issued before either party filed exceptions.

Therefore, he argues the circuit court’s December 2015 Order provided “no legitimate basis for

bypassing” Local Rule 66.3.1.

Standard of Review

On appeal, we defer to the circuit court’s construction of its local rules because “[t]he

court that enunciates a rule is the best judge of that rule.” James v. James, 853 S.W.2d 425, 430

(Mo. App. S.D. 1993) (internal citation omitted) (quoting Mid. Materials Co. v. Village Dev. Co.,

806 S.W.2d 477, 484 (Mo. App. S.D. 1991)). “[A] higher court is reluctant to interfere with a

8 Supreme Court Rule 86.09 provides:

The cost of the condemnation proceeding shall be paid by the condemner, up to and including the filing and copying of the report of the commissioners; and the court, as to any costs made by subsequent litigation, may make such order as in its discretion may be deemed just. The court shall allow the commissioners a reasonable compensation for their services, which shall be taxed as costs in the proceeding.

11 court’s construction of its own rule.” In re Transit Cas. Co., 900 S.W.2d 671, 674 (Mo. App.

W.D. 1995) (citing State ex rel. Logan v. Ellison, 267 Mo. 321, 184 S.W. 963, 964 (Mo. 1916)).

Analysis

Supreme Court Rule 50.01 authorizes circuit courts to adopt local rules to “govern[ ] the

administration of judicial business,” so long as they are not “inconsistent with the rules of [the

Supreme Court], the Constitution or statutory law in force.” State ex rel. Burns v. Gillis, 102

S.W.3d 66, 70 (Mo. App. W.D. 2003) (alterations in original) (citing Supreme Court Rule

50.01). The St. Louis City Circuit Court adopted Local Rule 66 to govern the administration of

judicial business in condemnation proceedings. Local Rule 66.1 provides condemnation cases

shall be initially assigned to the equity division. Local Rule 66.2 provides: “If exceptions are

filed, the clerk shall establish a sub-file for the particular parcel to which the exception relates . .

. and each sub-file shall remain assigned to the judge who entered the order of condemnation.”

Local Rule 66.3.1 then provides:

In condemnation proceedings pursuant to general statutes where exceptions to the commissioners’ report are filed, the case shall be transferred to Division 1 for assignment to a general division in the same manner as any other civil jury case. The trial shall be handled as to each sub-file in the same manner in which other civil jury causes are handled.

(emphasis added). The St. Louis City Circuit Court has also adopted Local Rule 6.2.1, which

states: “From time to time and in the presiding judge’s discretion, the presiding judge may assign

extraordinary cases requiring individual and continuing attention to general divisions for trial

setting, pretrial motions and trial.” Local Rule 6.2.1.

Here, the circuit court initially assigned the case to Judge Dowd in Division 2, the equity

division, when LCRA filed its condemnation petition. On December 30, 2015, the then-

presiding judge for the St. Louis City Circuit Court issued its order stating Appellant’s case was

12 “specially assigned to Division 2 for all further proceedings.” On April 4, 2016, Judge Dowd

entered the order of condemnation. On May 31, 2016, LCRA filed its exceptions, and on June

13, 2016, Appellant filed his exceptions. Upon the filing of exceptions, the circuit court did not

transfer the case to Division 1 for assignment to a general division. In December 2016, when

Appellant asked the circuit court to clarify the application of Local Rule 66.3.1 to his case, the

circuit court stated the “trial of the exceptions had been previously assigned to Judge David

Dowd on December 30, 2015.”

Appellant argues the circuit court violated Local Rule 66.3.1 when it failed to transfer the

case to Division 1 for assignment to a general division once exceptions were filed. We disagree.

The circuit court construed its Local Rules and determined the case did not need to be assigned

when exceptions were filed because of the December 2015 Order. We “defer[] to the trial court

with respect to its interpretation and application of its local rules relating to setting cases for

trial.” James, 853 S.W.2d at 430. Further, Appellant’s case was one part of a large, complicated

and extraordinary proceeding involving the acquisition of over 500 properties on an almost 100-

acre site in the City of St. Louis. It was within the authority of the then-presiding judge for the

City of St. Louis Circuit Court to specially assign Appellant’s case to Judge Dowd “for all

further proceedings” under the circumstances. See Local Rule 6.2.1.

Point I is denied.

Point II: Application for Change of Judge

Appellant’s second point argues the circuit court erred in denying his application for a

change of judge without cause.

13 Standard of Review

“The denial of a motion for change of judge without cause is an issue of law that the

appellate court reviews de novo.” Corozzo v. Wal-Mart Stores, Inc., 531 S.W.3d 566, 570 (Mo.

App. W.D. 2017) (citing Gordon ex rel. G.J.E. v. Epperly, 504 S.W.3d 836, 844 (Mo. App. W.D.

2016)).

“A civil litigant has a ‘virtually unfettered right to disqualify a judge without cause on

one occasion.’ Thus, the presentation of a timely application for change of judge under

[Supreme Court] Rule 51.05 requires a prompt change of judge.” State ex rel. Stockman v.

Frawley, 470 S.W.3d 401, 404 (Mo. App. E.D. 2015) (citing State ex rel. Walters v.

Schaeperkoetter, 22 S.W.3d 740, 742 (Mo. App. E.D. 2000)). Under Supreme Court Rule 51.05,

an application for change of judge “must be filed within 60 days from service of process or 30

days from the designation of the trial judge, whichever time is longer.” Supreme Court Rule

51.05(b). When a party files an application for change of judge, the trial court must grant the

application and transfer the case if the application was timely filed and no other member of the

applicant’s “class” previously obtained a change of judge under Supreme Court Rule 51.05.

State ex rel. Manion v. Elliott, 305 S.W.3d 462, 464 (Mo. banc 2010). In condemnation cases

involving multiple defendants, as to which separate trials are held, each separate trial to

determine damages shall be treated as a separate case for purposes of change of judge.”

Supreme Court Rule 51.05(d).9

9 Here, both parties conceded during oral argument Appellant was the only defendant to request a trial to determine damages and no other defendant requested a change of judge. Therefore, Supreme Court Rule 51.05(d) is not in issue.

14 Appellant’s request for a change of judge was untimely. Judge Dowd was designated

trial judge on December 30, 2015, through the December 2015 Order. Appellant was served

with process on March 18, 2016. Therefore, Appellant must have filed his application for

change of judge by May 18, 2016, to avail himself of his right to disqualify Judge Dowd under

Supreme Court Rule 51.05. He failed to do so. Appellant argues his application for change of

judge was timely because it was filed “less than 30 days after the trial court made clear in its

final order that it was going to assume jurisdiction over this exceptions case in violation of Local

Rule 66.3.1” on January 9, 2017. However, the fact Appellant did not realize Judge Dowd was

the judge designated to his case until January 9, 2017, is irrelevant and does not alter the

deadlines stated in Supreme Court Rule 51.05(b). “The designation of the trial judge occurs

when the judicial transfer order is filed in the circuit court, not when the parties are notified of a

change in judge.” Corozzo, 531 S.W.3d at 570-71 (internal quotations and citations omitted).

Because Appellant failed to timely apply for a change of judge, the circuit court did not err in

denying his request.

Point II is denied.

Point III: Assessment of Costs

Appellant’s third point argues the circuit court erred in assessing $21,207.13 in costs

against him. He argues the circuit court erroneously relied on Supreme Court Rule 77.01 in

assessing costs, which provides, “[i]n civil actions, the party prevailing shall recover his costs

against the other party,” instead of Supreme Court Rule 86.09, which provides, in condemnation

proceedings, “the court, as to any costs made by subsequent litigation, may make such order as

in its discretion may be deemed just.” He contends the circuit court must have erroneously relied

on Supreme Court Rule 77.01 because LCRA’s Bill of Costs motion requested costs be assessed

15 against him “pursuant to Missouri Supreme Court Rule 77.01” and the trial court overruled his

objection that Supreme Court Rule 77.01 does not apply in a condemnation proceeding. He

further argues, even if the circuit court assessed costs against him under Supreme Court Rule

86.09, its award of costs was improper because LCRA had a duty to justify the award of costs

and failed to do so.

A circuit court’s award of costs is a matter within its sound discretion, “and we will not

disturb the award absent a showing of an abuse of discretion.” Green v. Plaza in Clayton Condo.

Ass’n, 410 S.W.3d 272, 284 (Mo. App. E.D. 2013) (internal citations omitted). “A court abuses

its discretion when its action is so clearly against the logic of the circumstances and so arbitrary

and unreasonable as to shock one’s sense of justice and indicate a lack of careful consideration.”

Oliver v. Ford Motor Credit Co., LLC, 437 S.W.3d 352, 366 (Mo. App. W.D. 2014) (quoting

Kopp v. Home Furnishing Ctr., LLC, 210 S.W.3d 319, 329 (Mo. App. W.D. 2006)).

Condemnation proceedings are governed by Supreme Court Rule 86. See State ex rel.

Washington Univ. Med. Ctr. Redevelopment Corp. v. Gaertner, 626 S.W.2d 373, 377 (Mo. banc

1982), abrogated on other grounds by Clay Cty. Realty Co. v. City of Gladstone, 254 S.W.3d 859

(Mo. banc 2008). “Other rules of civil procedure apply in condemnation proceedings only when

they are consistent with [Supreme Court] Rule 86.” Id. Supreme Court Rule 86.09 provides a

procedure for assessing costs in condemnation proceedings:

The cost of the condemnation proceeding shall be paid by the condemner, up to and including the filing and copying of the report of the commissioners; and the court, as to any costs made by subsequent litigation, may make such order as in its discretion may be deemed just. The court shall allow the commissioners a reasonable compensation for their services, which shall be taxed as costs in the proceedings.

16 Supreme Court Rule 86.09.

Appellant argues the circuit court erroneously relied on Supreme Court Rule 77.01

instead of Supreme Court Rule 86.09 in assessing costs. We disagree. While LCRA’s Bill of

Costs requested costs be assessed against Appellant “pursuant to Missouri Supreme Court Rule

77.01,” the circuit court’s order makes no reference to Supreme Court Rule 77.01. “We presume

that the trial court knew and followed the law unless its judgment clearly indicates otherwise.”

In re Marriage of Davis, 378 S.W.3d 426, 432 n.4 (Mo. App. S.D. 2012) (citing Panettiere v.

Pannetiere, 945 S.W.2d 533, 540 (Mo. App. W.D. 1997)). Because the circuit court’s judgment

does not clearly indicate otherwise, we presume the circuit court assessed costs against Appellant

in a manner consistent with “the exercise of reasonable discretion” under Supreme Court Rule

86.09.

Appellant also argues that, even if the circuit court assessed costs against him under

Supreme Court Rule 86.09, LCRA had a duty to justify the circuit court’s award of costs and

failed to do so. However, Appellant cites no rule or case, and we can find no rule or case,

imposing that requirement. As Missouri courts have held, “All that we can read into . . .

[Supreme Court R]ule [86.09] is that it allows the trial court to assess costs in the trial of the

exceptions in the exercise of a reasonable discretion.” State ex rel. Farris v. Clifford, 543

S.W.2d 811, 813 (Mo. App. 1976). LCRA had no duty under Supreme Court Rule 86.09 to

justify the circuit court’s award of costs.

Point III is denied.

Point IV: Homestead Allowance

Appellant’s fourth point argues the circuit court erred in denying his request for a

homestead allowance.

17 Standard of Review

Decisions made by the circuit court without the aid of the jury are reviewed under

Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). “Under Murphy v. Carron, this Court

will affirm the judgment of the trial court ‘unless there is no substantial evidence to support it, it

is against the weight of the evidence, it erroneously declares the law, or it erroneously applies the

law.” Cent. Parking Sys. of Mo., LLC v. Tucker Parking Holdings, LLC, 519 S.W.3d 485, 492

(Mo. App. E.D. 2017) (footnote omitted) (quoting Lambrich v. Kay, 507 S.W.3d 66, 74 (Mo.

App. E.D. 2016)).

Section 523.039 sets forth the methods for determining just compensation for condemned

property. See § 523.039; City of Cape Girardeau v. Elmwood Farms, L.P., 575 S.W.3d 280, 284

(Mo. App. E.D. 2019). “Specifically, Section 523.039(1) through (3) determines just

compensation for condemned property by whichever yields the highest compensation applicable

to the property.” Id. Under section 523.039(1) through (3), just compensation for condemned

property is either:

(1) An amount equivalent to the fair market value of such property;

(2) For condemnations that result in a homestead taking, an amount equivalent to the fair market value of such property multiplied by one hundred twenty-five percent; or

(3) For condemnations of property that result in any taking that prevents the owner from utilizing property in substantially the same manner as it was currently being utilized on the day of the taking and involving property owned within the same family for fifty or more years, an amount equivalent to the sum of the fair market value and heritage value . . . .

18 § 523.039(1)-(3). Under section 523.039(2), a “homestead taking” is defined as “any taking of a

dwelling owned by the property owner and functioning as the owner’s primary place of

residence.” § 523.001.

Appellant argues the circuit court erred in denying his request for a homestead allowance

because it improperly found his testimony the Property was his primary place of residence “not

credible,” even though both parties stipulated to the evidence before the circuit court regarding

Appellant’s entitlement to such an allowance and no live testimony was presented to the circuit

court. Because the issue was tried upon stipulated facts, Appellant argues the circuit court “had

no basis for considering [his] credibility” and, therefore, the circuit court’s judgment denying his

request for a homestead allowance was erroneous.

Appellant’s argument is misguided. It is true “we will not give deference to a trial

judge’s determination regarding credibility of witnesses” when an issue is tried solely upon

stipulated facts. Thompson v. Chase Manhattan Mortg. Corp., 90 S.W.3d 194, 200 (Mo. App.

S.D. 2002) (citing Jarrell v. Dir. of Rev., 41 S.W.3d 42, 45 (Mo. App. S.D. 2001)). However,

the fact we will not defer to a circuit court’s determination of witness credibility when an issue is

tried solely upon stipulated facts does not mean the circuit court has no basis to weigh the

credibility of the evidence before it in reaching a decision. When confronted with conflicting

evidence, a circuit court must always weigh the credibility of that evidence in reaching its

decision. See Griffitts v. Old Republic Ins. Co., 550 S.W.3d 474, 477 n.3 (Mo. banc 2018)

(alterations in original) (quoting State v. Lytle, 715 S.W.2d 910, 915 (Mo. banc 1986))

(“[c]onflicts in the evidence [are] for the trial court to resolve.”).

In addition, the issue of Appellant’s entitlement to a homestead allowance was not tried

solely upon stipulated facts. The Joint Statement of Facts filed with the circuit court stated the

19 parties agreed to “waive the opportunity to present live testimony and ask the Court to determine

the issues based upon t[he stipulated] evidence, the evidence adduced at trial, and the arguments

of counsel.” (emphasis added). As LCRA noted, Appellant repeatedly testified regarding his

alleged residency in the Property at trial. On direct-examination, Appellant testified his primary

residence was on the fourth floor of the Property beginning in the summer of 2015. He testified

he filed state income taxes in Missouri in 2015 and 2016: filed a city earnings tax in Missouri in

2015 and 2016; registered to vote in Missouri in 2015; and obtained a Missouri non-driver’s

license because he maintained a commercial driver’s license in Florida. On cross-examination,

Appellant testified he never asked for an occupancy permit to live in the Property.

The circuit court “is free to believe or disbelieve all, part, or none of the testimony of any

witness” testifying at trial. Tolliver v. 5 G Homes, LLC, 563 S.W.3d 827, 834 (Mo. App. E.D.

2018) (citing Watson v. Mense, 298 S.W.3d 521, 525-26 (Mo. banc 2009)). We defer to the trial

court’s assessment of credibility of witnesses who testified at trial. State ex rel. Family Support

Div. v. Steak’m Take’m LLC, 524 S.W.3d 584, 589 (Mo. App. W.D. 2017) (citing Roper Elec.

Co. v. Quality Castings, Inc., 60 S.W.3d 708, 710 (Mo. App. S.D. 2001)). This deference is

appropriate because the trial court “is in a better position not only to judge the credibility of

witnesses and the persons directly, but also their sincerity and character and other trial

intangibles which may not be completely revealed by the record.” Tolliver, 563 S.W.3d at 834

(quoting Essex Contracting Inc. v. Jefferson Cty., 277 S.W.3d 647, 653 (Mo. banc 2009)). Thus,

the circuit court was free to disbelieve Appellant’s trial testimony he used the Property as his

primary residence. The circuit court properly considered the credibility of Appellant’s trial

testimony in reaching its judgment. We must defer to its determination. Steak’m Take’m LLC,

524 S.W.3d at 589.

20 Further, the circuit court’s judgment denying Appellant’s request for a homestead

allowance is supported by substantial evidence derived from the parties’ Joint Statement of

Facts. In the Joint Statement of Facts, the parties stipulated Appellant would testify he began

using the fourth floor of the Property as his primary residence in the summer of 2015. Appellant

obtained a Missouri non-driver’s license; paid a city earnings tax; registered to vote in Missouri

in 2015; listed the Property as his address for his health and car insurance; and filed state income

taxes in Missouri in 2015 and 2016. Appellant did not own the Property when he allegedly

moved into it in the summer of 2015 or when LCRA sent notice it intended to acquire the

Property by eminent domain in November 2015.

Appellant never abandoned his home in Florida; maintained his Florida driver’s license,

which he renewed in November 2017; and listed Florida as his home address on his 2014 Federal

Tax Income Return, which was filed in September 2015 when he claimed to be using the

Property as his primary residence. The Property was zoned for industrial use and not approved

for residential use, the City of St. Louis never issued an occupancy permit for Appellant to reside

at the Property, and Appellant was aware the City of St. Louis’ zoning laws prohibited him from

living at the Property. From July 2015 until January 2017, Appellant repeatedly left town and

spent more time in Florida than Missouri. Inspections of the Property revealed some appliances

on the Property were not functioning during the time in which Appellant claimed to be living in

the Property.

The circuit court’s judgment states “the facts lead to the conclusion that the building was

not [Appellant]’s primary place of residence.” “[W]here facts essential to an element of a case

are derived from non-live sources and are in conflict, appellate courts give deference to the trial

court’s conclusions about those facts.” Thompson, 90 S.W.3d at 200 (citing Jarrell, 41 S.W.3d

21 at 46[9]). Because we defer to the circuit court’s conclusions about the facts alleged in the Joint

Statement of Facts, and we defer to the circuit court’s determinations regarding credibility of

Appellant’s trial testimony, we find the circuit court’s judgment is supported by substantial

evidence and is not against the weight of the evidence.

Point IV is denied.

Point V: Exclusion of Evidence of Settlement Amount

Appellant’s fifth point argues the circuit court abused its discretion when it excluded

evidence of a settlement agreement between him and AT&T, a company that rented a space for a

cell tower on the Property’s roof from Appellant before the Property’s condemnation. Under the

settlement agreement, Appellant paid AT&T $65,000 to resolve any claims arising from the

termination of AT&T’s lease with Appellant because of the Property’s condemnation. Appellant

argues the circuit court improperly excluded this evidence because it erroneously believed

section 523.053 required the settlement amount be determined at a separate distribution after the

jury returned their verdict.

“We review a trial court’s ruling on the admission or exclusion of evidence for abuse of

discretion.” State v. Ecford, 198 S.W.3d 156, 158 (Mo. App. E.D. 2006) (citing State v. Nelson,

178 S.W.3d 638, 642 (Mo. App. E.D. 2005)). “In condemnation cases, trial court errors in the

admission or exclusion of evidence will not typically result in our reversing a decision without a

showing of substantial or glaring injustice.” Glaize Creek Sewer Dist. of Jefferson Cty. v.

Gorham, 335 S.W.3d 590, 593 (Mo. App. E.D. 2011) (internal citations omitted).

22 Analysis

A tenant may be entitled to a portion of the proceeds of the commissioners’ award if he

or she establishes a “bonus value” of the unexpired term of the lease exists. City of Riverside v.

Progressive Inv. Club of Kan. City, 45 S.W.3d 905, 911 (Mo. App. W.D. 2001) (internal

citations omitted). However, if a condemned property is subject to a leasehold interest, a single

award of damages is made without regard to the lessee’s claim. Santa Fe Trail Neighborhood

Redevelopment Corp. v. W.F. Coehn & Co., 154 S.W.3d 432, 442 (Mo. App. W.D. 2005) (citing

State ex rel. Mo. Highway & Transp. Comm’n v. Rantz, 43 S.W.3d 436, 440 (Mo. App. S.D.

2001)). Once a single award of damages is made, section 523.053 governs the distribution of

condemnation awards among defendants.

Section 523.053(1) provides “those defendants claiming a determinable interest in the

proceeds of [the commissioners’] award may file with the court an agreement setting out the

manner and percentages in which said award is to be divided among them.” § 523.053(1). But

section 523.053(4) specifically provides “[a]ny evidence relating to the terms of said

determination of interest shall not be admissible as evidence before the jury on the trial of . . .

exceptions.” § 523.053(4) (emphasis added). At trial, the circuit court declined to admit

evidence regarding the settlement amount Appellant paid AT&T, stating “I think it is a matter

that can be handled after the verdict in this trial.” Because section 523.053(4) mandates

evidence of other interests in the proceeds of the award be excluded in a jury trial on exceptions,

we cannot find the circuit court abused its discretion.

Point V is denied.

23 Point VI: Exclusion of Photographs and Criticism in Front of the Jury

Appellant’s sixth point argues the circuit court abused its discretion when it excluded

photographic evidence of Appellant’s experience in the construction and hotel industry and

nearby developments in the City of St. Louis. He claims the photographs’ exclusion prejudiced

his ability to present his case in an effective manner. Appellant also complains the circuit court

“compounded its error by criticizing [him] in front of the jury and directing [his] counsel ‘to

move forward’ on these matters.”

“We review a trial court’s ruling on the admission or exclusion of evidence for abuse of

discretion.” Ecford, 198 S.W.3d at 158 (citing Nelson, 178 S.W.3d at 642). “In condemnation

cases, trial court errors in the admission or exclusion of evidence will not typically result in our

reversing a decision without a showing of substantial or glaring injustice.” Gorham, 335 S.W.3d

at 593 (internal citations omitted).

Supreme Court Rule 84.04 and Preservation of Error

Initially, we note Appellant’s sixth point violates Supreme Court Rule 84.04(d).

Appellant’s sixth point argues the circuit court erred in three distinct ways: (1) by excluding

photographic evidence relating to his experience in the construction and hotel industry, (2) by

excluding photographic evidence relating to recent developments in the City of St. Louis; and (3)

by criticizing him in front of the jury for testifying in too much detail.10 “A single point relied on

that groups multiple, disparate claims is multifarious, does not comply with [Supreme Court]

10 The argument portion of Appellant’s brief also challenges the circuit court’s exclusion of a briefcase containing Buster Brown memorabilia from evidence. However, the circuit court’s ruling excluding the briefcase containing Buster Brown memorabilia from evidence is not challenged in Appellant’s sixth point relied on. Issues developed for the first time in the argument section that are different from those raised in the point relied on preserve nothing on appeal. See State v. Scott, 531 S.W.3d 639, 641 n.2 (Mo. App. S.D. 2017) and State v. Morrow, 541 S.W.2d 738, 740 (Mo. App. 1976). Therefore, we will not address whether the circuit court abused its discretion in excluding the briefcase containing Buster Brown memorabilia.

24 Rule 84.04, and generally preserves nothing for review.” Simmons v. McCulloch, 501 S.W.3d

14, 16 (Mo. App. E.D. 2016) (internal quotations and citations omitted). However, “[a]s a matter

of policy, the court prefers to decide cases on their merits whenever possible.” Comp & Soft,

Inc. v. AT&T Corp., 252 S.W.3d 189, 194 (Mo. App. E.D. 2008). Because the deficiencies in

Appellant’s point relied on do not impede our ability to discern his arguments or our disposition

on the merits, we review his sixth point ex gratia. O’Gorman & Sandroni, P.C. v. Dodson, 478

S.W.3d 539, 543 n.1 (Mo. App. E.D. 2015).

We further note Appellant has waived his claimed error that the circuit court criticized

him in front of the jury because he failed to object to any of the circuit court’s comments of

which he now complains. “To preserve a claim of error directed to remarks of a trial judge, an

objection must be made when they occur.” State v. Massey, 990 S.W.2d 201, 205 (Mo. App.

S.D. 1999) (internal quotations and citations omitted). When a party fails to object to a trial

judge’s remarks, his or her claim of error is waived “unless the conduct was erroneous and

amounted to conduct that affected the defendant’s substantial rights so as to result in manifest

injustice or miscarriage of justice.” Id. Therefore, we review Appellant’s claim of alleged error

regarding the circuit court’s alleged criticisms only for plain error.

Exclusion of Photographic Evidence

Appellant summarily states “the trial court abused its discretion by improperly

prejudicing [him] in his ability to use photographs to present his case in an effective manner” and

lists several instances where the circuit court sustained objections to various photographs relating

to his experience in the construction and hotel industries and nearby developments in the City of

St. Louis. However, Appellant failed to explain why such photographs were relevant or

25 necessary to presenting his case in an effective manner. The sole issue before the jury in the trial

of exceptions was the value of the Property; that is, the just compensation Appellant was entitled

to for its taking or its “fair market value.” “The fair market value of land is what a reasonable

buyer would give who was willing but did not have to purchase, and what a seller would take

who was willing but did not have to sell.” St. Louis Cty. v. River Bend Estates Homeowners’

Ass’n, 408 S.W.3d 116, 135 (Mo. banc 2013) (citing City of St. Louis v. Union Quarry, 394

S.W.2d 300, 305 (Mo. 1965)).

Appellant has failed to show how photographs of his personal experience in the

construction and hotel industries and photographs of nearby developments in the City of St.

Louis were relevant to helping the jury determine what a reasonable buyer would pay for the

Property and what a reasonable seller would accept in a sale of the Property. The identity,

knowledge, and experience of a landowner is irrelevant to a determination of just compensation.

Photographs of nearby properties not being offered as comparable sales are similarly irrelevant.

The circuit court’s decision to exclude irrelevant evidence is not an abuse of discretion. Bella v.

Turner, 30 S.W.3d 892, 897 (Mo. App. S.D. 2000). Even if these photographs were relevant,

Appellant was allowed to testify at length about his experience in the construction and hotel

industries and other photographs portraying nearby properties were admitted into evidence.

Therefore, the photographs in question were cumulative at best and their exclusion was within

the discretion of the trial court. See State, ex rel. Mo. Highway & Transp. Comm’n v. Conley

Devel. Co., 628 S.W.2d 683 (Mo. App. E.D. 1982).

Alleged Criticisms by the Circuit Court

Appellant also summarily states “[t]he trial court compounded the prejudicial effect of

excluding photographic evidence when it criticized [him] in front of the jury.” Appellant argues

26 the trial court’s criticisms of him included interrupting Appellant’s testimony to caution that he

did not need so many details and instructing his counsel to “help move [the trial] forward.”

However, Appellant fails to explain how the circuit court’s remarks were erroneous. “There is

no error if the circuit court does not express an opinion regarding the nature, content, or

truthfulness of evidence.” State v. Jackson, 386 S.W.3d 810, 818 (Mo. App. S.D. 2012) (quoting

State v. Webber, 982 S.W.2d 317, 321 (Mo. App. S.D. 1998)). We find no error, plain or

otherwise, in the conduct of the circuit court. The circuit court’s comments asked Appellant to

refrain from giving too many details in his testimony “to move things along.” These comments

expressed no opinion about the nature, content, or truthfulness of Appellant’s testimony. See id.

Appellant has failed to demonstrate the circuit court’s remarks impacted so substantially upon

his rights that manifest injustice or a miscarriage of justice would result if left uncorrected.

Point VI is denied.

Point VII: Admission of LCRA’s Photographs of the Property

Appellant’s seventh point argues the circuit court abused its discretion when it admitted

photographs offered by LCRA depicting the Property after the date of the taking. He argues

these photographs “confused the jury over whether [they] could consider the condition of the

building after [Appellant] moved out.”

Supreme Court Rule 84.04

Appellant’s seventh point challenges the admission of “LCRA’s photographs” without

specifically identifying the exhibits he contends were erroneously admitted. His failure to do so

violates Supreme Court Rule 84.04(d)(1)(C), which provides each point relied on shall “explain

in a summary fashion why, in the context of the case, th[e] legal reasons support the claim of

reversible error,” and preserves nothing for review. Supreme Court Rule 84.04(d)(1)(C)

27 (emphasis added); see also Herd v. Herd, 537 S.W.3d 414, 418 (Mo. App. S.D. 2018) (holding

that, where an appellant’s point relied on fails to identify the specific trial testimony or exhibits

supporting his or her claim, nothing is preserved for review). The argument portion of

Appellant’s brief, however, challenges the admission of Exhibits 13, 19, 20, 34, and 338.

Because we prefer to review deficient points on their merits so long as the deficiencies do not

impede impartial review, we review Appellant’s seventh point ex gratia. Stevens v. Cato, 549

S.W.3d 479, 483 (Mo. App. S.D. 2017).

“The admission of photographs lies within the sound discretion of the trial judge and will

not be disturbed on appeal unless an abuse of discretion is shown.” Lockwood v. Jackson Cty.,

Mo., 951 S.W.2d 354, 358 (Mo. App. W.D. 1997) (citing Mo. Highway & Transp. Comm’n v.

Rockhill Dev. Corp., 865 S.W.2d 765, 770 (Mo. App. W.D. 1993)). “In condemnation cases,

trial court errors in the admission or exclusion of evidence will not typically result in our

reversing a decision without a showing of substantial or glaring injustice.” Gorham, 335 S.W.3d

“A photograph will not be rendered inadmissible by the fact that it was taken before or

after an event or before or after changes occurred as long as the extent of the changes is

explained.” Rockhill Dev. Corp., 865 S.W.2d at 770 (citing State ex rel. Mo. Highway & Transp.

Comm’n v. Vitt, 785 S.W.2d 708, 712 (Mo. App. E.D. 1990)). Testimony that the photograph

did not depict the property as of the date of the taking adequately informs the jury the Property

changed after the taking. See State ex rel. Mo. Highway & Transp. Comm’n v. Meramec Valley

Elevator, Inc., 782 S.W.2d 642, 645 (Mo. App. E.D. 1989).

28 The record reveals LCRA introduced Exhibits 13, 19, 20, 34, and 338 and elicited

testimony that each of the photographs depicted the Property either after or near the date of the

taking. Shortly after LCRA admitted Exhibit 13 and before LCRA admitted Exhibit 34, Mueller

testified the photographs depicted the Property after Appellant moved out, but when he viewed

the Property he “had no idea that [Appellant] had moved out” and “thought [Appellant] had just

removed everything that was inside.” Before admitting Exhibit 19, Schoenborn testified the

photograph clearly and accurately depicted the Property’s condition after Appellant moved out.

Before admitting Exhibit 20, Schoenborn testified the photograph clearly and accurately depicted

the way the Property looked when he inspected the building in March 2017, which was after the

date of the taking. And Exhibit 338 was admitted after Appellant testified there were “places in

the [Property] that looked like” the photograph in July 2016, which was near or shortly after the

date the Property was taken.11 This testimony at trial adequately informed the jury the Property

changed after the taking. Further, as LCRA notes, Appellant also offered photographs taken

after the taking on May 31, 2017, into evidence during trial, accompanied by a witness’

explanation that the photographs were taken after the date of the taking. Having done so, he is in

no position to object to the admission of LCRA’s photographs taken after the taking. State ex

rel. State Highway Comm’n v. Howard, 315 S.W.2d 786, 791 (Mo. 1958).

Point VII is denied.

11 The Property was taken July 7, 2016.

29 Point VIII: Admission of Evidence Regarding an Alleged Fraudulent Tax Credit Scheme12

Appellant’s last point argues the circuit court erred in allowing LCRA to cross-examine

McKee regarding an alleged fraudulent tax credit scheme used to acquire the Property and other

properties and call Hemenway as a witness to give opinion testimony regarding the same.

Appellant argues evidence relating to an alleged fraudulent tax credit scheme was irrelevant and

the circuit court erroneously allowed “a false issue to be injected in the trial.”

“We review a trial court’s ruling on the admission or exclusion of evidence for abuse of

discretion.” Ecford, 198 S.W.3d at 158 (citing Nelson, 178 S.W.3d at 642). “In condemnation

cases, trial court errors in the admission or exclusion of evidence will not typically result in our

reversing a decision without a showing of substantial or glaring injustice.” Gorham, 335 S.W.3d

12 LCRA argues Appellant’s eighth point relied on fails to comply with Supreme Court Rule 84.04(d) by grouping together numerous, unrelated incidents of alleged error into a single point relied on. Although Appellant’s eighth point argues the circuit court erred in allowing LCRA to cross-examine McKee and call Hemenway as a witness, we find Appellant’s eighth point does not run afoul of Supreme Court Rule 84.04(d) because his challenges to both witnesses revolve around a central issue: McKee’s alleged involvement in a fraudulent tax credit scheme used to acquire the Property and other related properties. Therefore, his eighth point is not waived for failure to comply with Supreme Court Rule 84.04(d).

LCRA also argues Appellant failed to preserve his claim of error regarding the cross-examination of McKee because this claim of error was not included in his motion for new trial. Although Appellant did not use the term “cross- examination” in his motion for new trial, we find he has sufficiently preserved his claim of error. Our rules for preservation of error are applied to enable both the trial court and the appellate court “to define the precise claim made by the defendant,” not “to enable the court to avoid the task of review, nor to make preservation of error difficult for the appellant.” State v. Amick, 462 S.W.3d 413, 415 (Mo. banc 2015) (quoting State v. Pointer, 887 S.W.2d 652, 654 (Mo. App. W.D. 1994)). Appellant’s motion for new trial alleged “[t]he [circuit c]ourt erred in allowing the jury trial to become a referendum about McKee and the alleged fraud committed against the state by [NSR]. . . . Th[e] [circuit c]ourt allowed, over objection and through plain error, evidence both hearsay and otherwise, that was irrelevant to the valuation [of] the subject property.” This allegation sufficiently preserved his argument on appeal that the circuit court abused its discretion in permitting LCRA to cross-examine McKee about the alleged fraudulent tax scheme used to purchase the Property and other related properties.

30 Analysis

Cross-Examination of McKee

Appellant argues he did not “open the door to a wide-ranging attack on McKee’s use of

tax credits for the [Property]” by calling McKee as a witness. We disagree. “A party who has

introduced evidence concerning a certain fact may not on appeal complain that his opponent was

allowed to introduce related evidence, in rebuttal or explanation.” Eckerd v. Country Mut. Ins.

Co., 289 S.W.3d 738, 744 (Mo. App. E.D. 2009) (footnote omitted) (quoting Bowls v.

Scarborough, 950 S.W.2d 691, 702 (Mo. App. W.D. 1997)). On direct-examination, McKee

testified at length about the 2011 Sale. He testified about the promissory notes he signed in

connection with the 2011 Sale; the price he paid for the Property and whether it was inflated; the

structure of the triple net lease; the owner-financed, sale-leaseback structure of the transaction;

the fact the State issued and then denied tax credits associated with the transaction; and the

“unwinding” of the 2011 Sale. Appellant concedes in his brief “McKee[‘s] testimony about the

2011 [S]ale to NSR and the later unwind transaction was relevant background for the valuation

opinion given by [Appellant]’s . . . appraiser, William Otto Spence.” Appellant cannot now

complain LCRA was allowed to cross-examine McKee on the relevant issues he raised in his

direct-examination of McKee. See id.

Appellant also contends evidence related to whether McKee, through NSR, and

Appellant defrauded the State in the purchase of other properties is “irrelevant.” This argument

is also without merit. “Evidence is relevant if it tends to prove or disprove a fact in issue or

corroborates other evidence in the case.” Burrows v. Union Pac. R. Co., 218 S.W.3d 527, 534

(Mo. App. E.D. 2007) (citing Uxa ex rel. Uxa v. Marconi, 128 S.W.3d 121, 130 (Mo. App. E.D.

2003)). “The trial court has substantial discretion in ruling on the admissibility of evidence.”

31 Urbach v. Okonite Co., 514 S.W.3d 653, 659 (Mo. App. E.D. 2017) (citing Danneman v. Pickett,

819 S.W.2d 770, 772 (Mo. App. E.D. 1991)). “The admissibility of evidence in [condemnation

cases] depends on whether it tends to help the jury in resolving the issue of value and damages.”

State ex rel. Mo. Highway & Transp. Comm’n v. Edelen, 872 S.W.2d 551, 555 (Mo. App. E.D.

1994) (citing State ex rel. State Hwy. Comm’n v. Texaco, Inc., 502 S.W.2d 284, 288 (Mo. 1973)).

The evidence in question helped shed light on whether the 2011 Sale of the Property for

$3.75 million represented an accurate valuation of the Property. The evidence demonstrated a

pattern of activity that is corroborative of LCRA’s position that the 2011 Sale of the Property did

not represent an accurate valuation of the Property because the sales of the other properties: (1)

were structured similarly to the 2011 Sale; (2) were between NSR/McKee and Appellant; and (3)

occurred before or close in time to the 2011 Sale. See K.C. Roofing Ctr. v. On Top Roofing, Inc.,

807 S.W.2d 545, 550 (Mo. App. W.D. 1991). The circuit court did not abuse its discretion in

allowing cross-examination about McKee’s involvement with Appellant in purchasing other

properties.

Hemenway’s Testimony

Appellant maintains the circuit court abused its discretion in allowing Hemenway to

testify about her opinions regarding an alleged fraudulent tax credit scheme McKee and

Appellant used to purchase and sell the Property and other related properties because she was not

designated as an expert witness. However, the record before us does not show Hemenway gave

opinion testimony. A lay witness “may testify about facts within his or her personal

knowledge.” Urbach, 514 S.W.3d at 660. Here, Hemenway testified to facts she knew about

McKee‘s and Appellant’s alleged tax credit scheme to facilitate the purchase of the Property and

other related properties through first-hand knowledge she acquired as the Division Director at the

32 Missouri Department of Economic Development. Hemenway testified tax credits were initially

issued to McKee for half of the $3.75 million used to purchase the Property. Hemenway testified

the owner-financed, sale-leaseback structure of the transaction was improper. Hemenway

testified the State denied tax credits for the sale of one of the other properties and rescinded the

tax credits given to McKee for the 2011 Sale. Because none of Hemenway’s testimony

expressed an “opinion,” there was no need to designate her as an “expert” for her testimony to be

admissible. And, as explained above, Hemenway’s testimony regarding the alleged fraudulent

tax credit scheme to purchase the Property and other properties was relevant to determine

whether the 2011 Sale of the Property for $3.75 million represented an accurate valuation of the

Property. Accordingly, the circuit court did not abuse its discretion in allowing Hemenway’s

testimony about an alleged fraudulent tax credit scheme to purchase the Property.

Point VIII is denied.

Conclusion

The circuit court’s judgment is affirmed.

_______________________________ Philip M. Hess, Presiding Judge

Kurt S. Odenwald, J. and Lisa P. Page, J. concur.