The Acquisition of Property by Eminent Domain, Unified School District No. 365 v. Diebolt

320 P.3d 955, 299 Kan. 37
CourtSupreme Court of Kansas
DecidedMarch 21, 2014
DocketNo. 109,018
StatusPublished
Cited by10 cases

This text of 320 P.3d 955 (The Acquisition of Property by Eminent Domain, Unified School District No. 365 v. Diebolt) is published on Counsel Stack Legal Research, covering Supreme Court of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
The Acquisition of Property by Eminent Domain, Unified School District No. 365 v. Diebolt, 320 P.3d 955, 299 Kan. 37 (kan 2014).

Opinion

The opinión of the court was delivered by

Luckert, J.:

In a proceeding under the Eminent Domain Procedure Act, K.S.A. 2013 Supp. 26-501 et seq., it is well established that an owner of the subject property may testily as to his or her opinion regarding the property’s fair market value. Nevertheless, in Manhattan Ice & Cold Storage v. City of Manhattan, 294 Kan. 60, 74-76, 274 P.3d 609 (2012), and Mooney v. City of Overland Park, 283. Kan. 617, 619-20, 153 P.3d 1252 (2007), among other cases, this, court recognized limits to the scope of a property owner’s opinion testimony. Specifically, a property owner must base his or her opinion on matters that are relevant to the juiy’s determination of fair market value. And if the property owner is basing his or her opinion on the cost appraisal method, a foundation must be laid establishing the owner has the requisite expertise to perform the appraisal. In this case, the trial judge allowed a property owner, who did not have appraisal expertise, to express a valuation opinion but appropriately applied our caselaw and excluded testimony that was not relevant to the jury’s determination and was beyond the owner’s expertise. Consequently, we affirm.

Facts and Procedural Background

The property at issue in this eminent domain proceeding is a 36.2-acre, unimproved tract of land in Anderson County. Property owners Donald and Susan Diebolt purchased the property for $250,000 in 2006 for the purpose of adding a Garnett location to their lumberyard business, but no improvements had been made to the property before Unified School District No. 365 initiated the condemnation.

After the school district filed its petition, the trial judge appointed three appraisers pursuant to K.S.A. 2013 Supp. 26-504, who valued the property at $278,800. The Diebolts appealed the appraisers’ award and requested a jury trial.

[39]*39 Pretrial

During pretrial discovery, the school district deposed Donald Diebolt. Susan Diebolt was not deposed, nor did she testily at trial. In Diebolt’s deposition, he opined that the subject property had a value of “a little under 432 thousand.” Diebolt explained that he believed the fair market value of a tract of land is “what you have got in the land,” and consequently he calculated the fair market value by totaling “[t]he purchase price plus the costs in the property” minus farm income over the 4.58 years he had owned the property. Diebolt provided a written itemization of those costs, which was marked as Deposition Exhibit 1. These costs included the purchase price, closing costs, loan processing fees, appraisal fees, interest, property taxes, attorney fees, insurance, a topographical site plan and survey, a market site analysis, building plans, and environmental fees. To tire sum of these expenses, Diebolt added a 5 percent return on his investment. This sum was offset by farm income of $4,500 that had been received over the period of ownership. Diebolt’s total accounting and valuation was $431,501.59. Diebolt also testified he did not have any knowledge or background in valuing real estate or the Uniform Standards of Professional Appraisal Practice.

Following Diebolt’s deposition, citing Manhattan Ice, the school district filed a motion in limine in which it sought exclusion of:

“(a) Any testimony by Donald Diebolt as an expert witness in any capacity as to the fair market value of tire property that is at issue in this case; and
“(b) Any testimony at all by Plaintiffs’ sole witness, Donald Diebolt, as to how he arrived at his opinion of value with respect to the property that is the subject of this action.”

At the pretrial hearing on the motion in limine, the trial judge ruled from the bench. Relying on Manhattan Ice as a guide, the judge first explained the scope of testimony he would allow, stating that Diebolt could testify to “whatever value he believes the property is worth.” In addition, he could tell the jury the amount he and his wife paid to purchase the property, the reasons they bought the property, and the reasons they had surveys and a site analysis performed and site plans developed. The judge also delineated [40]*40evidence he would not allow: “[H]e’s not going to be able to admit this Deposition Exhibit Number 1 or something similar to it at trial as some type of a cost analysis that he’s done on his own to come up with valuation of the property. Several of the items that are included in there wouldn’t be included in a cost analysis by any expert.” In summarizing his ruling, the judge indicated the motion was being denied in part because he would allow Diebolt to testify as to one item on Deposition Exhibit 1—the amount the Diebolts had paid for the property. All of the other entries on Deposition Exhibit 1 were excluded.

Subsequently, a written order in limine was filed, which differed somewhat from the judge’s oral rulings. In itemizing the testimony that would be allowed without further foundation, the order did not vaiy from the bench ruling, stating that Diebolt could testify “as to the purchase price of the property in question, when it was acquired, the purpose for which it was acquired, and their plans for the use of the property.” The order then addressed Deposition Exhibit 1 and, in doing so, did not absolutely exclude the various costs. Instead, the judge allowed the admission of evidence regarding the topographical site plan, survey, market site analysis, and building plan if those who performed the work testified “concerning the work that was done by them and the value of this work.” The order also explained: “[T]he evidence excluded by this ruling is not material or relevant to a determination of the value of the property.” But the order made no mention of Manhattan Ice.

Trial

At trial, Donald Diebolt was tire property owners’ only witness. He testified that he paid $250,000 for tire subject property. He explained the tract of land was larger than necessary for his plans and more expensive than some other property on the market but, in his opinion, the property was worth the extra expense because it was a good location to build a Garnett facility for his business. A traffic count, market site analysis, environmental study, topographical surveys, conceptual building plans, and estimates of the cost of building a lumberyard on the site were completed, and those confirmed his belief regarding the property’s fair market value. [41]*41Nevertheless, he had not acted on his plans to build because an economic downturn hit soon after he bought the property. Diebolt opined that the value of the subject property at the time of the trial was $432,000. He stated that he arrived at this value by calculating the “[cjost flow to recreate what I’ve spent years doing.”

The school district presented testimony from a real estate appraiser who valued the subject property as between $188,400 to $249,000, using the comparable sales method. The witness testified that the highest and best use of the property was public use or use as commercial property for development.

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Cite This Page — Counsel Stack

Bluebook (online)
320 P.3d 955, 299 Kan. 37, Counsel Stack Legal Research, https://law.counselstack.com/opinion/the-acquisition-of-property-by-eminent-domain-unified-school-district-no-kan-2014.