Missouri Pipeline Co. v. Wilmes

898 S.W.2d 682, 1995 Mo. App. LEXIS 685, 1995 WL 142281
CourtMissouri Court of Appeals
DecidedApril 4, 1995
DocketNo. 65269
StatusPublished
Cited by12 cases

This text of 898 S.W.2d 682 (Missouri Pipeline Co. v. Wilmes) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Missouri Pipeline Co. v. Wilmes, 898 S.W.2d 682, 1995 Mo. App. LEXIS 685, 1995 WL 142281 (Mo. Ct. App. 1995).

Opinion

DOWD, Judge.

The Missouri Pipeline Company (Plaintiff) condemned a portion of the property owned by Cornelia Wilmes (Defendant) for the purpose of constructing a pipeline. The jury awarded Defendant $45,000 in damages and Plaintiff appealed. We affirm.

Plaintiff is authorized by the Missouri Public Service Commission to operate as a public utility and to maintain a natural gas pipeline system. As a public utility, it is authorized to condemn real property and all interests therein for the construction, operation and maintenance of its natural gas pipeline transportation system. Plaintiff operated a 16-inch pipeline extending from Pike County south to St. Charles County. It planned to extend this pipeline from a point near Old Monroe in St. Charles south to Sullivan, Missouri. In order to do so, Plaintiff condemned a portion of Defendant’s 109-acre property in St. Charles County.

On September 27, 1991, Plaintiff filed an Amended Petition in Condemnation. A condemnation hearing was held on October 7, [685]*6851991. Commissioners were appointed to assess the amount by which the taking lowered the value of Defendant’s property. They awarded Defendant $14,600 in damages. Both sides filed exceptions to the Commissioners’ award and demanded a jury trial. Prior to trial, Plaintiff was allowed to amend its petition by interlineation to limit the scope of the easement it condemned to the transportation of natural gas only. The sole issue at trial was the amount of damages Defendant should be awarded.

Defendant called four witnesses to give an estimate of the damages caused by the taking. Ralph Prinster, a real estate appraiser, testified the pipeline diminished the value of Defendant’s property by $47,700. Both Bonnie Reller, Defendant’s daughter, and Ken Reller, Defendant’s son-in-law, testified the pipeline had lowered the value of Defendant’s property by $1,000 an acre. Plaintiff moved to strike the Rellers’ testimony, but the trial court denied this motion. Preston Bank, a certified real estate appraiser, also testified on Defendant’s behalf. Bank had thirty years’ experience as a real estate appraiser and was very familiar with the real estate in St. Charles County. He opined the pipeline had diminished the value of Defendant’s property by 25%. Defendant also testified she was afraid of the pipeline and felt it had diminished the value of her property.

Albert Westover valued the property on Plaintiffs behalf. He stated the property was worth $341,000 immediately before the taking and $336,000 immediately after the taking, resulting in $5,400 in damages to the property.

The jury awarded Defendant $45,000 in damages, and the trial court entered judgment pursuant to the jury’s verdict. Plaintiff appeals.

In Point I, Plaintiff alleges the trial court erred by allowing Defendant to produce evidence of the jury’s verdict in a separate condemnation ease in which Westover gave an appraisal. During direct examination, Plaintiff asked its expert if he had previously done appraisals in land condemnation cases. Westover named some of the people he had done appraisals for in the past, including Charles Niedner, Defendant’s attorney. Plaintiff did not inquire any further, and the jury was left with the impression that Defendant’s attorney had previously endorsed Westover’s opinions.

During cross-examination, Defendant’s counsel attempted to impeach Westover’s testimony about his previous work for him as follows:

Q. Okay. You mentioned a couple of times early on in your testimony that you wouldn’t — you had worked for various persons, including me, Mr. Niedner, you referred, I assume you mean me?
A. That’s correct.
Q. And it’s true isn’t it that you have only worked for me one time?
A. Yes.
Q. All right. The time you worked for me was on the Boland ease; is that correct?
A. Correct.
Q. And that’s been, what, several years ago?
A. Yes, I would say two or three, probably three years ago.
Q. Okay. Have I ever hired you since then to do any work?
A. I don’t know why not.
Q. Well, let’s talk about that.
A. My value was too low. You won the case.

Westover admitted he valued the damages in that case at $230,000. Defendant then asked to read into evidence the jury verdict which awarded damages of $338,000. Plaintiff objected to the evidence as irrelevant and highly prejudicial. However, Defendant argued the jury’s verdict could be used to impeach Westover’s implication that Niedner endorsed his appraisals by showing he underestimated the damages in the case he worked on for Niedner by $108,000. The trial judge allowed him to read the verdict in the previous case after instructing the jury as follows: 1

I am going to permit counsel to do this, however, I want to instruct the jury, that [686]*686this dollar amount does not pertain to any value of the property in question in the ease now before the Court. But pertains to that particular ease, only.

Plaintiff alleges the admission of this evidence constitutes reversible error because it violated its right to a fair and impartial trial and because it was an improper method of impeachment. First, to the extent this argument raises constitutional claims, it cannot be considered because these claims were raised for the first time on appeal. S.L.J. v. R.J., 778 S.W.2d 239 (Mo.App.1989). Further, the evidence Defendant elicited during cross-examination of Westover was admissible to rebut and explain Westover’s testimony about his relationship with Niedner. Although immaterial and irrelevant evidence may not be brought before the jury under the guise that it impeaches or discredits a witness, the trial court has discretion to determine what evidence is relevant, and its decision will not be overturned absent a showing of abuse of discretion. Carlisle v. Kroger Co., 809 S.W.2d 23, 27[8 — 10] (Mo.App. 1991). In Wailand v. Anheuser Busch Inc., 861 S.W.2d 710, 714[6] (Mo.App.1993), this court stated:

A party who has conveyed information to a jury dining opening statement or 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.

We find the evidence of the jury’s verdict in the prior ease was admissible to rebut West-over’s direct examination testimony and his unresponsive cross-examination answers which raised the issue of Westover’s and Niedner’s relationship because Niedner, as Defendant’s attorney, could not testify about his relationship with Westover. However, Plaintiff also argues Defendant exceeded the scope of permissible impeachment by assuming facts not in evidence according to State v. Blue Ridge Baptist Temple, 597 S.W.2d 236, 240 (Mo.App.1980). In Blue Ridge,

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State ex rel. Missouri Highways & Transportation Commission v. Boer
495 S.W.3d 765 (Missouri Court of Appeals, 2016)
Colt Investments, L.L.C. v. Boyd
419 S.W.3d 194 (Missouri Court of Appeals, 2013)
Bell v. Bell
292 S.W.3d 920 (Missouri Court of Appeals, 2009)
In re the Marriage of Patrick
201 S.W.3d 591 (Missouri Court of Appeals, 2006)
Rigali v. Kensington Place Homeowners' Ass'n
103 S.W.3d 839 (Missouri Court of Appeals, 2003)
Carter v. St. John's Regional Medical Center
88 S.W.3d 1 (Missouri Court of Appeals, 2002)
Mueller v. Bauer
54 S.W.3d 652 (Missouri Court of Appeals, 2001)
Nelson v. Waxman
9 S.W.3d 601 (Supreme Court of Missouri, 2000)

Cite This Page — Counsel Stack

Bluebook (online)
898 S.W.2d 682, 1995 Mo. App. LEXIS 685, 1995 WL 142281, Counsel Stack Legal Research, https://law.counselstack.com/opinion/missouri-pipeline-co-v-wilmes-moctapp-1995.