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City of Kansas City v. Powell

Court of Appeals of Missouri, Western District, First Division

October 7, 2014


Modified November 25, 2014

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Appeal fro the Circuit Court of Jackson County, Missouri. The Honorable Sandra C. Midkiff, Judge.

Alexandra Muesenfechter, Assistant City Attorney, Kansas City, MO, Attorney for Respondent.

Telester Ameena Powell, Appellant, Pro se, Kansas City, MO.

Karen King MitchellKaren King Mitchell, Judge. Mark D. Pfeiffer, Presiding Judge. Mark D. Pfeiffer, Presiding Judge, and Gary D. Witt, Judge, concur.


Karen King Mitchell, Judge

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This is an appeal from a condemnation action wherein the City of Kansas City sought to condemn the property of Telester Ameena Powell (among others) to facilitate its construction of the East Patrol Campus, a combination police station and crime lab. The trial court granted the City's condemnation petition, and following a trial on exceptions to the damages assessed by three appointed commissioners, a jury determined the fair market value of Powell's property to be $55,000. Powell raises numerous challenges to both the condemnation and damages determinations. We affirm.

Factual Background

On October 5, 2011, the City sent Powell a letter by certified mail, alerting her that her property, located at 2611 Brooklyn Avenue in Kansas City, Missouri, was located in an area undergoing redevelopment by the City. The City advised Powell that it needed to acquire the following property rights for Project #07000168, East Patrol Campus:

A fee interest in part of the Property legally described as: THE EAST 125 FEET OF LOT 19, BLOCK 3, THE SUMMIT, A SUBDIVISION IN KANSAS CITY, JACKSON COUNTY, MISSOURI[.]

The letter identified the following rights that Powell could exercise, at her option:

1. You may seek legal counsel at your own expense.
2. You may obtain an independent appraisal of the property rights described above from a state licensed or state certified appraiser of your choice at your own expense. The City will have one done also. If and when you are contacted by the City's appraiser, you are encouraged to set an appointment for inspection of your property at the earliest convenient time to both parties.

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3. You may make a counter-offer and/or engage in further negotiations. It is important that the City hear from you quickly if you wish to negotiate. Please call the Agent listed below immediately.
4. You have the right to seek assistance from the office of ombudsman for property rights created under section 523.277 of the revised statutes of Missouri.
5. The first hearing in the condemnation process determines if the City has the right to condemn. You have the right to contest that determination at that initial hearing.
6. You have the right to a second hearing, where three court-appointed condemnation commissioners preliminarily determine just compensation for your property. If either you or the City is not satisfied with the commissioners' determination, either party may appeal to a jury.
7. You have the right to request vacation of an easement under the procedures and circumstances under Section 3 quoted below:
Section 3. " A property owner of land burdened by an easement created after December 31, 2006, abandoned in whole for a period in excess of ten years, may petition a court of competent jurisdiction to obtain the rights previously transferred and vacation of the easement for monetary consideration equal to the original consideration obtained by the property owner in exchange for the easement. The holder of the easement shall be a party to such action. The holder of any such easement shall be allowed to maintain the easement upon a showing that the holder, in good faith, plans to make future use of the easement. The right to request that an easement be vacated may be waived by the property owner of record from whom the easement was originally acquired or by such property owner's successor in title to the burdened property either in the original instrument of conveyance or in a subsequent signed writing." [1]
8. You may request an alternate location for the City's proposed taking within 30 days of receiving this letter. Your alternate shall be on the same parcel of land and shall be clearly described. The City will consider your alternate.

The City then requested appraisals of Powell's property from three different appraisers for the purpose of making offers to Powell for her property. The appraisals were all conducted in November and December 2011, and they valued Powell's property at $23,000; $38,000; and $55,000. In January 2012, following the appraisals, the City sent Powell another certified letter, offering her $55,000 for her property and giving her 30 days in which to respond.[2] Powell did not accept the offer. The next month, the City sent Powell a

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second offer, which included, in addition to the original $55,000, a homestead value of $13,750, for a total offer of $68,750. Powell did not accept this offer. The next month, the City sent Powell its purported " final" offer, which included the previous property appraisal and homestead values, with an additional settlement value of $11,250, for a total offer of $80,000. Powell did not accept this offer either, but apparently suggested in an email that, if the City raised the offer by $10,000, she would accept it. The City agreed with Powell's terms and, in April 2012, sent her a " final total offer" of $90,000. Despite her earlier indication, Powell again refused to accept the City's offer. Consequently, in May 2012, the City withdrew the $90,000 offer and reinstituted the $80,000 offer. Again, Powell did not accept the offer.

On June 28, 2012, the City passed Ordinance 120509, which authorized condemnation of various private properties in the area bounded by Brooklyn and Prospect Avenues and 26th and 27th Streets, in Kansas City, Missouri, for the purpose of constructing and maintaining the East Police Campus. Among the properties to be condemned was Powell's property at 2611 Brooklyn Avenue, described as " The east 125 feet of lot 19, block 3, The Summit, a subdivision in Kansas City, Jackson County, Missouri."

On July 23, 2012, the City filed a Petition in Condemnation, invoking the authority granted to it by § 82.240 and seeking to condemn various properties (including Powell's) to build a police station and crime lab for public use. The petition indicated that the City had complied with all of its legal obligations prior to filing the petition and then sought notice to be served upon the defendants, a court order finding the petition sufficient and the lands described therein to be condemned, appointment of three disinterested commissioners to assess damages to defendants, vesting of title to the property in the City following payment of the assessed damages, and any further orders as needed.

On September 9, 2012, a special process server attempted to serve Powell at 2718 Brooklyn Avenue with a summons for the condemnation hearing. The residence at 2718 Brooklyn belonged to Powell's mother, but at the time, the City believed Powell to reside there as well, based upon its perception that 2611 Brooklyn was in a state of rehabilitation and uninhabitable. A woman answered the door at 2718 Brooklyn and indicated that Powell was not there. The process server was later shown a picture of Powell and believed the woman he encountered to have been Powell,[3] so he returned to 2718 Brooklyn and spoke with Powell's mother, who refused to accept service on Powell's behalf. The process server advised Powell's mother that he was leaving the papers with her, and he left them on the porch of the home. The City also published notice of the condemnation hearing in a local newspaper.

Powell sought to quash the service attempted at 2718 Brooklyn. The court granted Powell's motion, but determined nevertheless that Powell had been adequately served through publication.

On September 21, 2012, the court held a hearing on the condemnation petition. At the hearing, the City presented testimony from Pat Ferguson, Senior Acquisition Agent for the City of Kansas City. Ferguson testified that 127 parcels were sought to be acquired for the purpose of creating

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the East Patrol police station project, which would operate to serve the public. Ferguson testified to the three appraisals made of Powell's property, along with the various offers the City provided to Powell in its effort to purchase her property.

Instead of cross-examining Ferguson, Powell sought a continuance, based upon her recent receipt of the petition, to more adequately prepare to meet the allegations in the condemnation petition. The court granted Powell's request and reset the remainder of the hearing as to her property for October 1, 2012.

At the hearing, Powell requested an additional continuance to conduct discovery, but that request was denied. Powell then argued that the East Patrol Campus project was for private use, rather than public use, and that it was meant to further political interests of a nearby local church. Powell presented a letter from a nearby neighborhood association indicating that they were not advised of the project until September 2011 at the earliest and that they were neither invited to nor advised of any planning meetings or discussions of potential location. Powell also presented a comparison of her block and other nearby blocks, demonstrating that there were other areas with more vacant property that could be used. Powell presented no further evidence. Despite her allegations of private use, Powell acknowledged that building a police station and efforts to ensure public safety were public uses.

On October 2, 2012, the court issued its order, finding that all interested parties had received adequate notice, that the intended taking was for public use, that the City was authorized to condemn the property at issue, and that the City had engaged in good faith negotiations with each of the owners to reach just compensation for the property. Therefore, the court ordered the property to be condemned and authorized the City to take possession immediately upon the filing of the Report of the Commissioners and payment to the Circuit Court Clerk of the amounts assessed in the report. The court further appointed the Honorable C. William Kramer, Ms. Judy Johnson, and Mr. Edward J. Newsome as commissioners to assess the fair market value of the property and gather facts related to any homestead or heritage value to be assessed.

Thereafter, the commissioners issued their report, finding the fair market value of Powell's property to be $65,000 and determining that she was entitled to a homestead value of $16,250, for total damages of $81,250. The court accepted the commissioners' report and ordered that they be paid $1,900 each by the City for their work. Both Powell and the City filed exceptions to the commissioners' report, and the court set the matter for a jury trial on February 26, 2013.[4] In the meantime, the City paid $81,250 to the circuit clerk for the damages assessed by the commissioners for Powell's property, and the court ordered title to the property thereafter to be vested in the City. On February 28, 2013, the City sought a writ of possession for the property. After an evidentiary hearing, the court granted the City's writ request.

On May 9, 2013, Powell sought leave to file an answer to the condemnation petition out of time. The City opposed, and the motion was denied. On May 24, 2013, four days before the scheduled jury trial, Powell filed a motion for change of judge pursuant to Rule 51.05 and § 476.180. The motion alternatively argued entitlement to change of judge as a matter of right and

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change of judge for cause. Though the motion alleged that the trial judge was biased, the motion provided no reasons, apart from disagreements with prior rulings, to support an allegation of bias. The motion was overruled on the basis that it was both untimely and failed to allege any cause for recusal.

At the jury trial, Powell presented testimony from herself as both a fact and an expert witness. Powell testified that she was a real estate broker and that she marketed and managed foreclosed properties. She further testified to the historical value of her home (it was built in 1895) and surrounding neighborhood, as well as the value of the location and its proximity to various city attractions. Powell further testified to all of the repairs she had made and was planning to make to the home. Powell indicated her belief that the highest and best use of the property was--not as residential--but as " a parcel as part of a bigger development." Powell further offered a market analysis approach to valuation, wherein she identified and presented to the jury a variety of properties she deemed comparable to her own. The home values ranged from $66,500 to $225,000. Powell testified that her professional opinion of fair market value for her property was $140,000.

Powell also sought to offer testimony from Larry Goldblatt, an architect, to testify to the fair market value of her property. But because Goldblatt was not a certified appraiser, the court found that he did not qualify to give his opinion on fair market value. The court noted, however, that he could potentially serve as a fact witness, due to his familiarity with the East Patrol Campus project. The court then asked Powell what fact-witness questions she might have for Goldblatt. But because Powell failed to identify any information relevant to the determination of fair market value, the court excluded Goldblatt as a witness.

The City again presented Ferguson as a witness, and he again testified to the valuation from each of the three appraisals conducted on Powell's property. Ferguson also testified that a fourth appraisal was conducted by Beverly Easterwood--the appraiser that had initially found the property's value to be $55,000--approximately one year before the taking. Her second appraisal, which was conducted as of the date of the taking, valued Powell's property at $61,000. Ferguson further testified that, of the various parcels of land needed for the project, approximately 50 were vacant, approximately 12 were boarded up, and 13 were owned by the Land Trust of Jackson County, meaning that they had not sold after an auction to collect back taxes.

The City also presented testimony from Easterwood regarding her second appraisal of Powell's property. Easterwood testified that her second appraisal was conducted based solely on her photographs from the first appraisal because Powell would not allow her back onto the property for the second inspection due to Powell's belief that recent vandalism caused the property to no longer reflect its true condition. Easterwood indicated that the increase in value was due to rising market values in the nearby comparable sales.

The jury returned a verdict finding the fair market value of Powell's property to be $55,000. The court thereafter ordered the circuit clerk to return $12,500 to the City as its overpayment of ...

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