State ex rel. Missouri Highway & Transportation Commission v. Pinnell

774 S.W.2d 528, 1989 Mo. App. LEXIS 1075, 1989 WL 82087
CourtMissouri Court of Appeals
DecidedJuly 24, 1989
DocketNo. 16299
StatusPublished

This text of 774 S.W.2d 528 (State ex rel. Missouri Highway & Transportation Commission v. Pinnell) 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
State ex rel. Missouri Highway & Transportation Commission v. Pinnell, 774 S.W.2d 528, 1989 Mo. App. LEXIS 1075, 1989 WL 82087 (Mo. Ct. App. 1989).

Opinion

PREWITT, Judge.

Relator sought, in the underlying action, to condemn property owned by Lloyd A. Garoutte and Alice M. Garoutte. Following the initial hearing on relator’s condemnation petition, respondent stated that he would dismiss the petition for relator’s failure to show good faith negotiations to purchase the property, but would stay the order for fifteen days if relator wanted to seek prohibition or mandamus.

Within that time relator filed a petition seeking this court’s order prohibiting respondent from dismissing the condemnation petition and issuing a writ of mandamus directing respondent to order the condemnation of the property and to appoint commissioners to assess damages to the Garouttes. Thereupon this court issued its preliminary order prohibiting respondent from dismissing the action.

The parties agree that the condemnation petition should allege and relator must show that bona fide negotiation occurred and the parties were unable to arrive at a purchase price. See State ex rel. Weatherby Advertising v. Conley, 527 S.W.2d 334, 336-337 (Mo. banc 1975); State ex rel. State Highway Commission v. Pinkley, 474 S.W.2d 46, 49 (Mo.App.1971). We view the petition as sufficient to so allege and it is not seriously challenged. The question is whether the evidence showed sufficient negotiation with the Garouttes.

The evidence on negotiation came from the testimony of Dick Walker and a letter identified as Exhibit B referred to in that testimony. Mr. Walker is a “right of way negotiator” employed by relator. His testimony regarding negotiations follows:

DIRECT EXAMINATION BY-MS. CUR-RAN:
******
Q. You did attempt to negotiate with the defendants,—
A. Yes.
Q. —Lloyd and Alice Garoutte?
A. Yes.
Q. And looking at Exhibit B, will you tell us what that is?
A. This is our letter offer trying to purchase the property from the defendants, the Garouttes.
Q. And what parcel is involved—
A. Eleven—
Q. —here?
A. B.
Q. That is 11-B? Is that correct?
A. That is correct.
Q. And who is the owner of that land?
A. Lloyd A. and Alice M. Garoutte.
Q. Was Exhibit B presented to Lloyd A. and Alice M. Garoutte?
A. Yes.
Q. How was that done?
A. I handed the letter to them.
Q. To both of them?
A. Yes. They were both there at the time.
Q. Were you able to agree with them on a price—
[530]*530A. No.
Q. —for the property involved?
A. No.
* * * * * *
CROSS EXAMINATION BY MR. WILEY:
$ ‡ % $ ifc $
Q. Were you familiar with and involved in the appraisal of the property?
A. No, I wasn't involved in it.
Q. You did not do any of the appraising yourself then, I take it.
A. No, sir.
Q. But, I take it as negotiator that you had access to the appraisal. Is that—
A. I—
Q. —correct?
A. I get a Form 6. The appraisal is reviewed out of the Joplin office and it is sent to Jefferson City and then I get back a Form 6, which is what I am supposed to offer the property owners.
Q. And you made that offer to the property owners in this case?
A. Yes, and it’s in Exhibit B here.
* * * # * *
THE COURT: Well, let me see if I understand you correctly. Mr. Wilson or Mr. Walker, you handed this letter to Mr. and Mrs. Garoutte.
WITNESS: Yes, sir.
THE COURT: And what response, if any, was there to that letter? What did they say, if anything?
WITNESS: As I recall, they said, “That’s not enough and we expected at least Fifteen Hundred Dollars.” Is that right, Lloyd?
MR. LLOYD GAROUTTE: Well,—
WITNESS: You said you thought the offer would be Fifteen Hundred Dollars, didn’t you?
MR. WILEY: I would like for the witness to testify without asking my client to testify at this time.
THE COURT: Yes. Now, the offer as contained in this letter under date of January 26, 1989, which has been penned in, you handed that letter to the Gar-outtes?
WITNESS: Yes, sir, I did.
THE COURT: And they did not think that was a sufficient amount of money, without going into any details, is that—
WITNESS: Yes.
THE COURT: —correct?
WITNESS: Yes, sir.
THE COURT: Did they make you a counter offer?
WITNESS: No. They said they expected me to offer more than that, and then I believe that same day they contacted their attorney, Mr. Wiley, and he immediately wrote a letter and at that time said that he did not think that was enough money, and I believe he did put in an amount he thought they were damaged.

Respondent contends that the letter described as Exhibit B in Walker’s testimony was not a sufficient offer because it does not describe the real estate and easements to be taken by the state. To support this position respondent quotes from State ex rel. Missouri Highway and Transportation Commission v. Black, 702 S.W.2d 525, 526 (Mo.App.1985):

The letter contained no legal description of the property to be taken, and no description of the temporary construction easements sought. It did refer to a project number and a parcel number. In view of these omissions and other provisions normally found in a sale contract it is at least questionable that the letter contained an offer sufficiently definite to constitute a contract upon acceptance by the landowner.

After the portion quoted by respondent the paragraph closes with the court saying that it “need not reach that point.”

The letter, in evidence here as Exhibit B, is set out below.1 It refers to a deed which [531]

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Bluebook (online)
774 S.W.2d 528, 1989 Mo. App. LEXIS 1075, 1989 WL 82087, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-missouri-highway-transportation-commission-v-pinnell-moctapp-1989.