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McNeill v. City of Kan. City

Court of Appeals of Missouri, Western District, Second Division

April 28, 2015

DAVE McNEILL, Respondent,
v.
CITY OF KANSAS CITY, MO, Appellant

APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY. THE HONORABLE ROBERT M. SCHIEBER, JUDGE.

Michael P. Healy, Lee's Summit, MO for respondent.

Tara M. Kelly, Christa J. Barter and Douglas McMillan, Kansas City, MO for appellant.

BEFORE DIVISION TWO: LISA WHITE HARDWICK, PRESIDING JUDGE, VICTOR C. HOWARD AND CYNTHIA L. MARTIN, JUDGES. ALL CONCUR.

OPINION

Lisa White Hardwick, Judge

Page 510

The City of Kansas City (" City" ) appeals from the circuit court's judgment awarding Dave McNeill damages and prejudgment

Page 511

interest for the wrongful demolition of a building he owned. During the jury trial, the court excluded evidence of the City's order to demolish the building after finding that the order was legally insufficient and, therefore, irrelevant. The court also excluded the demolition order as a discovery sanction against the City. On appeal, the City contends that the circuit court lacked subject matter jurisdiction to find the demolition order invalid. The City further argues that the court erred in excluding the order because it was logically and legally relevant and its exclusion as a discovery sanction was unjust. Lastly, the City asserts that the court erred in awarding McNeill prejudgment interest. For reasons explained herein, we affirm.

Factual and Procedural History[1]

In the summer of 2008, McNeill purchased property containing a building located at 3519-25 Paseo Boulevard in Kansas City. At the time of the purchase, the building was on the City's dangerous buildings list and had been since August 2001, when an order to demolish the building was issued by the City's Neighborhood and Community Services Department. Within the first few months after purchasing the property, McNeill began to renovate the building as a multi-tenant residential property. He obtained architectural plans, reframed the building, installed new subfloors, re-decked the roof, and demolished the building's brick and concrete front porch. After McNeill's bank backed out of a construction loan, however, work on the building stopped while McNeill sought alternative financing.

In June 2009, the City sent a letter to McNeill instructing him to remove debris and weeds on the property. On June 24, 2009, McNeill met with City inspectors to inspect the property. During the meeting, McNeill showed the inspectors his plans for the property, explained his financing difficulties, and indicated that he was trying to obtain additional funding for the construction project. The City inspectors directed McNeill to clean up a pile of debris from the porch demolition and get rid of the tall weeds on the property. McNeill removed the debris and weeds and graded the yard in July 2009. At that time, McNeill received a preliminary commitment from a lender for a construction loan. On August 8, 2009, the City demolished the building.

McNeill filed a petition for damages for wrongful demolition.[2] In a 2011 jury trial, the jury found in favor of McNeill and awarded him $150,000 plus costs.[3] The City asked for a new trial on the basis that the wrongful demolition verdict-directing instruction was a roving commission. See McNeill v. City of Kansas City, 372 S.W.3d 906, 909 (Mo. App. 2012). The circuit court granted a new trial, and McNeill appealed. Id. After finding that the jury instruction was, in fact, a roving commission, we affirmed the circuit court's grant of a new trial. Id. at 912.

When the case went back to the circuit court in September 2012, McNeill submitted a request for production of documents in which he sought, among other things, all orders to demolish dangerous buildings issued by the City between August 24, 2001, and August 8, 2009. On October 5, 2012, the City objected to the request as overly

Page 512

broad and burdensome but stated that, without waiving this objection, it would produce a sampling of such documents for McNeill's review.

On April 4, 2013, McNeill's counsel sent a Golden Rule letter to the City demanding that the City produce the documents as soon as possible. Seven days later, on April 11, 2013, McNeill filed a motion to enforce discovery. In his motion, McNeill stated that his counsel had become aware of the case of Woodson v. City of Kansas City, 80 S.W.3d 6 (Mo. App. 2002). In Woodson, this court found that the demolition order in that case, which was identical to the demolition order in this case, did not contain findings that were mandated by the City's Property Maintenance Code (" PMC" ). Id. at 13. Therefore, we reversed and remanded the case for the City's Neighborhood and Community Services Department to make the required findings of fact. Id. McNeill contended in his motion to enforce that the City changed its demolition order forms to address the deficiencies found in Woodson but " made a conscious decision not to halt demolitions based on Orders to Demolish which the City knew were invalid, including the August 24, 2001 Order to Demolish in this case." McNeill asserted that he needed the City to produce the Woodson demolition order and other demolition orders issued between August 24, 2001, and August 8, 2009, to prove this contention.

The City opposed McNeill's motion to enforce on the grounds that discovery was closed; McNeill had not allowed a reasonable amount of time after filing the Golden Rule letter for the City to respond before he filed the motion to enforce; and the City had offered McNeill the opportunity to inspect the requested documents, but he did not arrange a time to do so. On May 14, 2013, the circuit court denied ...


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