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

954 S.W.2d 503, 1997 Mo. App. LEXIS 1562, 1997 WL 549976
CourtMissouri Court of Appeals
DecidedSeptember 9, 1997
DocketNo. WD 52268
StatusPublished
Cited by7 cases

This text of 954 S.W.2d 503 (State ex rel. Missouri Highway & Transportation Commission v. Sisk) 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. Sisk, 954 S.W.2d 503, 1997 Mo. App. LEXIS 1562, 1997 WL 549976 (Mo. Ct. App. 1997).

Opinion

HOWARD, Judge.

Danny and Lilly Mann appeal from a judgment awarding them $85,000.00 in damages for property acquired through condemnation by the Missouri Highway and Transportation Commission (“the MHTC”). The Manns contend that the trial court erred by failing to strike a venireperson for cause, by striking their appraiser’s testimony regarding comparable sales of other properties, by allowing the MHTC to cross-examine Mr. Mann about his prior statements at a commissioners’ hearing, and by sustaining pretrial motions in limine filed by the MHTC.

This case began when the MHTC filed a petition to condemn approximately 4.5 of the Manns’ 70.42 acres of farm property in Sugar Creek, Missouri. Court-appointed commissioners filed a report awarding the Manns $106,000.00 for the acquired property, and the Manns filed exceptions to the report, asking that their damages be appraised by a jury.

During voir dire proceedings at the ensuing trial, the Manns’ attorney questioned ve-nirewoman Christina Zimmerman—who worked for an insurance company supervising people who valued insurance claims— about whether her work experience would affect her ability to be fair and impartial in this ease:

Q. Okay. And the fact that there’s going to be certain claims like that, and the fact that, you know, the Manns are going to be asking for money for the loss of, you know, or the effect for the loss of some of their improvements and how the acquisition affects their improvements, and the fact that you’re in the business of adjusting and they’re asking for money, and at Farmer’s you’re attempting to evaluate if you should give as much money say as a claimant is asking, would that affect your ability to give a fair and impartial verdict for the Manns?
A. No, because I don’t handle very many, very little, if at all, homeowner’s type of property claims.
Q. Okay. But I’ve taken it one step beyond that. Even though it’s not the exact same thing it’s procedurally the same process of asking for money and you maybe determining that—
A. A value.
Q. Exactly. Would the fact that you work for an insurance company and you might, you know, valúate things, certainly affect your ability here to give a fair and impartial verdict?
A. I don’t know how to answer that. I think it would probably, because I have knowledge in how to value claims, give a more accurate verdict. I don’t know.
Q. So you would bring that knowledge and maybe use what you have in your experience as an adjuster to value this claim and—
A. Right.
Q. —thank you. So, do you think you could be fair with that knowledge?
A. Yes.

At the close of the voir dire proceedings, the trial court denied the Manns’ motion to strike venirewoman Zimmerman for cause, and she was removed from the panel by a peremptory strike.

The first witness to testify on behalf of the Manns was Merle Decker, a real estate appraiser. Mr. Decker stated that he “found enough like properties” to conclude that the [506]*506pre-acquisition value of the Manns’ property was $20,500.00 per acre. He further testified that, prior to the acquisition, the total value of the property was $1,585,000.00, and after the acquisition, the total value of the property was $906,310.00.

After Mr. Decker expressed his opinion that the property was worth $20,500.00 per acre before the acquisition, the Manns’ attorney asked him to describe the comparable sales upon which that figure was based. Mr. Decker first described a 1993 transaction in which Citywide Asphalt sold 328 acres to Waste Management of Missouri for $22,-868.00 per acre. The trial court then permitted the MHTC’s counsel to conduct a voir dire examination of Mr. Decker concerning that sale. In response to questions from the MHTC’s counsel, Mr. Decker explained that he verified the terms of the Citywide Asphalt sale with another appraiser:

Q. Now, you announced to ... the jury a few minutes ago that you had verified this sale?
A. Yes.
Q. Okay. And what person was it that you verified the sale with?
A. Tom Ruhl. Tom Ruhl was the appraiser and he took care of both of these, both sides, and I verified with Tom Ruhl. And I know Tom Ruhl, Tom is a personal friend.

The MHTC’s counsel then moved to strike Mr. Decker’s testimony about the Citywide Asphalt sale on the ground that Mr. Decker failed to adequately verify the terms of the transaction:

Now, the ... foremost argument that I have that this sale should not be allowed is that to get the sale done you have to verify it through the buyer—he said Tom Ruhl was not the buyer, the seller, Tom Ruhl was not the seller, or the broker. He said Tom Ruhl was not the broker, that there was no broker. Therefore, he got this information from the form that he has that was from Tom Ruhl, simply another appraiser. Another appraiser that verifies a sale does not give credibility to him coming in and by hearsay testifying to what another appraiser told him. And the ease law in Missouri does not allow as an exception to hearsay unless the expert witness verifies it was from the buyer, the seller or the broker. He has failed to do that on this sale.
THE COURT: The evidence was he contacted Mr. Ruhl that he knew personally and confirmed the sale price. As an expert, isn’t he allowed to rely upon hearsay where it’s not [inaudible].
MHTC COUNSEL: But according to case law that just doesn’t happen. This is a matter that I’ve had great success in the past, there are appellate courts here that upheld the fact that unless you get it from the buyer, the seller or the broker, it is not a verified sale. If that’s the case that even if you get it from a partner in your appraisal firm that is double hearsay.
THE COURT: Response?
MANN COUNSEL: That’s sufficient under Missouri law. There’s no question he just verifies Ruhl’s opinion.
THE COURT: Simply asking Ruhl—
MANN COUNSEL: Sure. He was the one that did the appraisal, there was no broker on it so he was the closest in time to it. I mean, if they have any information it’s not a valid sale I’m sure we’re hear later on.
MHTC COUNSEL: Your honor, my expert witness tried to verify this sale. Those terms are confidential, there’s no way Mr. Decker got it.
THE COURT: I’ll tell you what. You’re probably right and I’ll sustain the objection. Now, if he can establish somebody he confirmed these figures I’ll let it in though at this point I will sustain the objection and I will strike his testimony at this point.

The trial court then ordered the testimony about the Citywide Asphalt sale stricken, telling the jury that “I am striking from the record this witness testimony concerning statements made to this witness by Mr. Tom Ruhl.” The Manns’ attorney returned to his examination of Mr. Decker, and the following exchange occurred:

Q. Did you verify this any other way?
A.

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954 S.W.2d 503, 1997 Mo. App. LEXIS 1562, 1997 WL 549976, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-missouri-highway-transportation-commission-v-sisk-moctapp-1997.