Manhattan Ice & Cold Storage v. City of Manhattan

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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 102,235

MANHATTAN ICE AND COLD STORAGE, INC.,
Appellant,

v.

CITY OF MANHATTAN, KANSAS,
A MUNICIPAL CORPORATION,
Appellee.


SYLLABUS BY THE COURT

1.
A point raised only incidentally in a brief but not argued there is deemed
abandoned. Without specific argument on why an excluded witness should have been
permitted to testify, an appellate court cannot review the merits of the exclusion.

2.
When testimony of an excluded expert in an eminent domain trial was potentially
relevant to the issue of special use or highest and best use as a meat processing plant, but
the evidence was already presented to the jury through a representative of the landowner,
the evidence could have been excluded as cumulative, and there is no prejudice.

3.
The question of whether evidence concerns material too remote in time to be
admissible in an eminent domain trial lies within the discretion of the district judge.
Temporal remoteness is one of the factors the judge should consider. On the facts of this
case, the trial judge did not abuse his discretion when excluding a temporally remote
proposal on refrigeration equipment for a meat processing plant.
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4.
When a landowner in an eminent domain trial has failed to identify a
representative from a company as an expert, any representative who testifies at trial must
be treated as a lay witness and must be in compliance with the statutory requirements in
K.S.A. 60-456(a) and K.S.A. 60-419.

5.
Without a proffer of an excluded witness' testimony, an appellate court is not in a
position to review the decision of the trial judge on relevance. A party bears the burden of
making and preserving a record sufficient to support its claims on appeal.

6.
A landowner is competent to testify on his or her nonexpert opinion of the value of
the subject property in an eminent domain trial, but a landowner who is not an appraisal
expert is not qualified to assemble the components of and calculate replacement cost. A
jury, unguided by expert testimony or similarly established or recognized authority, also
cannot assemble the components of and calculate replacement cost.

7.
Although deposition testimony may be used at trial in certain circumstances, it is
subject to the same limitations and objections as though the declarant were testifying in
person. These limitations include relevance and the knowledge required of an expert
required under K.S.A. 60-456(b)(1).

8.
A landowner who chooses not to call an appraisal expert to the witness stand in an
eminent domain trial—apparently because a pretrial motion in limine ruling restricted the
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appraisal expert's reliance on another expert not present at trial and whose deposition was
properly excluded—cannot complain on appeal that the appraisal expert's testimony was
too strictly circumscribed.

9.
Under Supreme Court Rule 6.02 (2011 Kan. Ct. R. Annot. 39), an appellate court
presumes a district judge did not rule on an issue when an appellant fails to provide a
record citation to the ruling in its brief.

10.
PIK Civ. 4th 131.08 and 131.09 concerning special use of property subject to
eminent domain are outmoded. The current wording of K.S.A. 26-513(e) and instructions
based upon it already provide adequately for jury consideration and valuation of a unique
or highly unusual property.

Appeal from Riley District Court; PAUL E. MILLER, judge. Opinion filed March 23, 2012.
Affirmed.

John R. Hamilton, of Hamilton, Laughlin, Barker, Johnson & Watson, of Topeka, argued the
cause, and Robert L. Pottroff, of Pottroff Law Office, P.A., of Manhattan, was with him on the briefs for
appellant.

William L. Frost, of Morrison, Frost, Olsen, Irvine, Jackson & Schartz, LLP, of Manhattan,
argued the cause, and Katharine J. Jackson, of the same firm, was with him on the brief for appellee.

The opinion of the court was delivered by

BEIER, J.: This appeal arises out of an eminent domain proceeding on three tracts.
Landowner Manhattan Ice and Cold Storage, Inc. (Landowner) appeals the $3,515,043
judgment of the district court, challenging evidentiary rulings and one instruction. The
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condemning authority, the City of Manhattan (City), pursues a conditional cross-appeal.
Because we affirm the district court's judgment, we need not reach the cross-appeal
issues.

FACTUAL AND PROCEDURAL BACKGROUND

Events Leading Up To Trial

Landowner initiated district court review of the $3.2 million appraisers' award for
the June 29, 2007, taking of three tracts of land: one unimproved, one underlying a
Rainbo Bread business, and one underlying a Manhattan Meats processing plant.

During pretrial discovery, the City took depositions of landowner's president,
Steve Saroff; landowner's designated appraisal expert, Christopher J. Heavey, whose
resume identifies him as a property management professional; and landowner's
designated rebuilding expert, James Larva, a construction project manager. During his
deposition, Saroff opined that the three tracts had a total fair market value of $10 million.
Heavey's written report included a total fair market value for the three tracts of
$12,241,367.86, $7,907,205 of which was attributable to the "replacement cost" of the
Manhattan Meats processing plant. This cost was calculated in the written report of
Larva.

At the time of the pretrial conference, the trial judge permitted landowner to add
Dr. James Marsden as an expert witness. Landowner intended to use Marsden to testify
on United States Department of Agriculture regulations for meat processing plants.

The City filed an initial and supplemental motion in limine before trial, seeking
exclusion of:
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(1) Testimony of Heavey on any opinion about the Rainbo Bread or Manhattan
Meats tract or any proposed use, on fair market value of the subject
property, on the replacement cost method of appraising, and on
depreciation of the subject property;
(2) Testimony of Larva or of Mark Redmond on any opinion of the cost to
build or replace any improvements;
(3) Testimony of Bob Bramhall on any opinion of the cost to install heating or
air conditioning units or refrigeration equipment;
(4) Testimony of Saroff on any opinion of value related to this case;
(5) Testimony of Saroff and/or Debbie Saroff on the uniqueness of the
property, just compensation, conversations with the City regarding the
property, special use of the property, historical value of the property,
compatible uses of the property, or planned improvements;
(6) Testimony of Marsden on any "special value" or any other value of the
subject property;
(7) Testimony of Jean Wherrel; Brett Ballou, Roger Schultz, Tim Schultz, or
any representative of Schultz Construction Company; testimony of Jim
Gleason, Mark Warner, Don Ince, Joe Mills, Bruce McCallum or any
representative of Dial Realty; testimony of Ron Fehr, Jason Hilgers or
Brian Williams; or Don Crubel on any issue;
(8) The contract for purchase of Ince's stock, other evidence of Ince's buyout,
or photos from the national registry of Saroff's historical home; and
(9) Any evidence related to the Kansas Department of Transportation's
acquisition of property for a bridge over the Kansas River.

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In the trial judge's order ruling on the motions, he stated:

"1. Replacement cost less depreciation is a valid and recognized method of
valuing land in a condemnation proceeding.
"2. The opinions of Chris Heavey and a representative of Herndon &
Redmond, Inc.[,] are admissible as to the cost of the replacement of the existing buildings
and land within the subject tract.
"3. Steve Saroff, as a landowner, is entitled to testify as to the value of his
land, notwithstanding his opinion may be based on what he has heard from others.
"4. The testimony of Bob Bramhall as to the cost of refrigeration equipment
is too remote in time and will not be allowed.
"5. With regard to defendant's supplemental motion in limine the [testimony
of Saroff or Debbie Saroff regarding the uniqueness of the property, just compensation,
conversations with the City regarding the property, historical value of the property,
compatible uses of property, planned but not yet accomplished improvements or design
changes to the property; testimony of Don Crubel regarding the subject properties;
testimony of Jean Wherrel; testimony of Brett Ballou, Roger Schultz, Tim Schultz, or any
other representative of Schultz Construction Company; testimony of Jim Gleason, Mark
Warner, Don Ince, Joe Mills, Bruce McCallum or any representative of Dial Realty;
testimony of Ron Fehr, Jason Hilgers, or Brian Williams regarding any issue in this
matter; introduction of the contract for purchase of Don Ince's stock, other evidence of
Ince's buyout, or photos of national registry of Steve Saroff's historical home; and
introduction of any evidence related to the DOT's acquisition of property related to bridge
over the Kansas River] will not be allowed as irrelevant . . . .
"6. The DVD recording of the view of plaintiff's premises is relevant and
admissible on the issue of depreciation in the replacement cost approach to valuation.
"7. The testimony of James Marsden is inadmissible as irrelevant to the only
issue in this case, that is the fair market value of the land in question."

Landowner sought reconsideration of the trial judge's decision regarding Saroff's
testimony on the uniqueness of the property and possible design changes. The City
responded, arguing that evidence of "uniqueness" was appropriate only when there was
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no ascertainable market or comparable sales for the property. The district judge ruled that
Saroff could testify in detail about the description of the subject property, its prior uses,
and its use on the day of the taking; but he could not testify about what "could have been
done" with the property.

Trial

Landowner's first witness was the City's designated expert, Fletcher Simmons.
During Simmons' direct examination, landowner elicited information about the different
methods of valuation allowable under the Kansas statute—comparable sales, replacement
cost, and income capitalization—and about Simmons' valuation of the subject property.

Landowner next called Saroff to the witness stand. Saroff described the three
tracts, past uses for the land, the existing meat processing plant on the Manhattan Meats
tract, the value of the total land and property taken by the City, the information he relied
on to value the property, and alternative uses for the property.

At various points during Saroff's testimony, the City objected to attempts to
introduce figures prepared by Heavey and Larva, and the district judge held bench
conferences outside of the jury's hearing. During these conferences, landowner's counsel
repeatedly asserted that a landowner could testify based on hearsay, as expert valuation
witnesses have been permitted to do in past eminent domain proceedings. The district
judge disagreed.

At one point during Saroff's direct testimony, counsel for landowner asked him to
"draw some numbers" on an easel before the jury, apparently seeking to have him
perform a calculation of replacement cost. The City objected because it believed Saroff
would be relying on Heavey's information. During the ensuing in-chambers conference,
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the trial judge asked counsel for landowner where Saroff's number for the replacement
cost of the meat processing plant came from, and the the following exchange occurred:

"MR. POTTROFF: Mr. Heavey and Mr. Larva sat down and went through what
it cost to rebuild that building reproduction.
"THE COURT: Can Mr. Heavey testify that he has any expertise in rebuilding a
building?
"MR. POTTROFF: No.
"THE COURT: And he got his information from Mr. Larva?
"MR. POTTROFF: Absolutely, just like the other appraisers.
"THE COURT: We're right back where we were five minutes ago.
"MR. POTTROFF: So the City's appraisers can use hearsay, but mine can't?
"THE COURT: City's appraisers are here to testify. Yours aren't.
"MR. POTTROFF: [Heavey's] in the courtroom, and hearsay rule doesn't apply
to someone in the courtroom.
"THE COURT: But he doesn't have the expertise to talk about rebuilding a
building. I was going to let him testify from his expertise as a broker to establish the
value of the property from his opinion, but Mr. Larva is the man who talks about
rebuilding the building, what it costs to do the building. That's who needs to be here to
talk about construction of the building.
. . . .
"THE COURT: . . . If you want Larva's numbers in, you get Larva here. And
Heavey's information is based on Larva, so that doesn't come in without Larva. It's that
simple. But Mr. Saroff can get on the witness stand and say, "I think my property is
worth 'X'."
"MR. POTTROFF: But he can't give the basis for this opinion?
"THE COURT: No."

Heavey was present and in the courtroom during trial, but landowner never called
him as a witness. Larva also was not called as a live witness; he was not present at the
trial.

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After Saroff's testimony concluded, landowner proffered evidence of what it
characterized as two prior comparable sales of its property, one to Pizza Hut in 2004 for
$13,640,934 and one to the Kansas Department of Transportation in 1995 for $26 per
square foot, when the City was building a bridge over the Kansas River. Landowner
further proffered evidence that the KDOT sale was an arm's length transaction flowing
from negotiations conducted as though condemnation was not possible.

The City presented testimony from two experts at trial: Timothy Keller and
Simmons. Keller valued the subject property at $2.52 million, using the comparable sales
method, and testified that the highest and best use of the property was as commercial
property for redevelopment. Fletcher valued the property at $3.3 million, using the
comparable sales method, and testified that the highest and best use of the property was
as commercial property for redevelopment.

At the close of trial, landowner requested two instructions pertaining to special use
property: PIK Civ. 4th 131.08 and 131.09. PIK Civ. 4th 131.08 reads:

"The owner contends the (entire property) (property taken) is (property that is
not customarily bought and sold) (held or has been improved in such a manner that it
serves a useful and special purpose to its owner, and could not be sold at anything like its
value to another) and therefore it has no measurable market value. The owner has the
burden of proof as to the issue that the property has no measurable market value.
"If you are persuaded that the value of the property cannot be determined by
market value, then you must use a different measure of compensation instead of market
value. In determining your award you may consider the value of the property to the
owner for (his) (her) special use or purpose, or for any purpose to which (his) (her)
property is reasonably adaptable. These special uses or purposes must be real, not
speculative, conjectural or remote."

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PIK Civ. 4th 131.09 reads:

"The owner's property consisting of ___ was taken. The measure of
compensation is its value to the owner at the time of the taking. The date of the taking
was ___.
"In determining your award you are to consider the value of the property to the
owner for (his) (her) special use or purpose, or for any other purpose to which the
property is reasonably adaptable. These special uses or purposes must be real not
speculative, conjectural or remote."

The district judge declined the requested instructions, holding that this was not a special
use case in which there was no ascertainable market for the subject property.

The trial judge did instruct the jury that evidence of fair market value had been
presented as follows:

Timothy Keller
Vacant Tract $290,000
Rainbo Bread tract $430,000
Manhattan Meat tract $1,800,000
Total: $2,520,000

Fletcher Simmons:
Vacant tract $588,000
Rainbo Bread tract $500,000
Manhattan Meat tract $2,213,000
Total: $3,301,000


Steve Saroff:
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Three tracts of land $5,000,000
Manhattan Meat building $10,000,000
Total: $15,000,000

The trial judge, consistent with K.S.A. 26-513(e) and pattern instructions, also
defined fair market value, and he instructed the jury that fair market value could be
determined using any one or any combination of the three statutorily authorized valuation
methods. The judge told the jury that its award of compensation must fall within the
range of testimony presented in the case and that it was to consider the best and most
advantageous use to which the property was reasonably adaptable, as long as that use was
not speculative or conjectural.

The jury deliberated and returned a verdict of $3,515,043.

ANALYSIS

Landowner argues on this appeal that the trial judge's evidentiary rulings and
refusal to instruct on special use prevented it from presenting its theory of the case,
namely, that the meat processing plant was a special use property justifying use of the
replacement cost method of valuation. Before we address each of landowner's issues, we
briefly review certain basic eminent domain principles.

An eminent domain proceeding is statutory in nature. Miller v. Bartle, 283 Kan.
108, 114, 150 P.3d 1282 (2007). The only determination for the jury at the trial of a
condemnation action is the fair market value of the land being taken by the governmental
entity. 283 Kan. at 115 (citing K.S.A. 26-508).

K.S.A. 26-513(e) defines fair market value as
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"the amount in terms of money that a well informed buyer is justified in paying and a
well informed seller is justified in accepting for property in an open and competitive
market, assuming that the parties are acting without undue compulsion. The fair market
value shall be determined by use of the comparable sales, cost or capitalization of income
appraisal methods or any combination of such methods."

Under the definition in K.S.A. 26-513, there are three methods for valuing
property—comparable sales, replacement cost, or income capitalization. In City of
Wichita v. Eisenring, 269 Kan. 767, 774, 7 P.3d 1248 (2000), this court noted that, before
the addition of subsection (e) to K.S.A. 26-513 in 1999, the favored method of valuation
in Kansas was the comparable sales approach, also known as the market data approach.
Once the statute was amended, Kansas recognized all three methods and permitted any
one or any combination of the three to value property subject to condemnation. 269 Kan.
at 775. "[A]ll three methods stand on equal footing," and this court no longer gives
preference to one method over another. 269 Kan. at 775.

Evidentiary Rulings

A district judge "'has broad discretion in determining what evidence will be
allowed in an eminent domain proceeding.'" Mooney v. City of Overland Park, 283 Kan.
617, 619, 153 P.3d 1252 (2007) (quoting U.S.D. No. 464 v. Porter, 234 Kan. 690, 694,
676 P.2d 84 [1984]).

"[A] motion in limine may be granted when a district court finds two factors are present:
(1) The material or evidence in question will be inadmissible at a trial; and (2) The
pretrial ruling is justified as opposed to a ruling during trial because the mere offer or
mention of the evidence during trial may cause unfair prejudice, confuse the issues, or
mislead the jury; the consideration of the issue during the trial might unduly interrupt and
delay the trial and inconvenience the jury; or a ruling in advance of trial may limit issues
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and save the parties time, effort, and cost in trial preparation. In determining if a pretrial
ruling is justified a district court should weigh whether the court will be in a better
position during trial to assess the value and utility of evidence and its potential
prejudice." State v. Shadden, 290 Kan. 803, 816, 235 P.3d 436 (2010).

A multistep evidentiary analysis applies to the first factor in the motion in limine
analysis. 290 Kan. at 817.

"'Generally, when considering a challenge to a district judge's admission of
evidence, an appellate court must first consider relevance. Unless prohibited by statute,
constitutional provision, or court decision, all relevant evidence is admissible. K.S.A. 60-
407(f). Evidence is relevant if it has any tendency in reason to prove any material fact.
K.S.A. 60-401(b). To establish relevance, there must be some material or logical
connection between the asserted facts and the inference or result they are intended to
establish. [Citation omitted].'" Mooney, 283 Kan. at 620 (quoting State v. Gunby, 282
Kan. 39, 47, 144 P.3d 647 [2006]).

"[T]he question of whether evidence is probative is judged under an abuse of
discretion standard; materiality is judged under a de novo standard." Shadden, 290 Kan.
at 817 (citing State v. Reid, 286 Kan. 494, 507-09, 186 P.3d 713 [2008]). The next step is
to determine which additional rules of evidence or other legal principles govern
admissibility. "On appeal, this conclusion is reviewed de novo." 290 Kan. at 817 (citing
Boldridge v. State, 289 Kan. 618, Syl. ¶ 10, 215 P.3d 585 [2009]). "'[E]videntiary rules
governing admission and exclusion may be applied either as a matter of law or in the
exercise of the district judge's discretion, depending on the contours of the rule in
question.'" Mooney, 283 Kan. at 620 (quoting Gunby, 282 Kan. at 47).

The second question that must be answered by a trial judge faced with a
motion in limine test—whether a pretrial ruling is preferable to a ruling during
trial—is reviewed on appeal for abuse of discretion. Shadden, 290 Kan. at 818.

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In addition, "[e]vidence in an eminent domain proceeding consists mostly of the
opinions of witnesses who are sufficiently well informed on the subject to be helpful and
informative to the jury. Such evidence is allowed because the valuation of real estate is
largely a subjective matter and cannot be definitely determined by the application of any
exact principle of science." City of Wichita v. Eisenring, 269 Kan. at 774 (citing 5
Nichols on Eminent Domain § 18.15 [3d ed. 1997]).

"If the witness is testifying as an expert, testimony of the witness in the form of
opinions or inferences is limited to such opinions as the judge finds are (1) based on facts
or data perceived by or personally known or made known to the witness at the hearing
and (2) within the scope of the special knowledge, skill, experience or training possessed
by the witness." K.S.A. 60-456(b); 269 Kan. at 776. The qualification of an expert
witness and the admissibility of expert testimony are both matters within the broad
discretion of the trial court. 269 Kan. at 776.

A lay witness may offer opinions or inferences "as the judge finds (a) may be
rationally based on the perception of the witness and (b) are helpful to a clearer
understanding of his or her testimony." K.S.A. 60-456(a). In addition,

"[a]s a prerequisite for the testimony of a witness on a relevant or material
matter, there must be evidence that he or she has personal knowledge thereof, or
experience, training or education if such be required. Such evidence may be by the
testimony of the witness himself or herself. The judge may reject the testimony of a
witness that the witness perceived a matter if the judge finds that no trier of fact could
reasonably believe that the witness did perceive the matter." K.S.A. 60-419.

We review a trial judge's determination of whether a lay or expert witness is
qualified to testify under an abuse of discretion standard. Pullen v. West, 278 Kan. 183,
210-11, 92 P.3d 584 (2004).
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1. Exclusion of 17 Witnesses

Landowner challenges the trial judge's exclusion of the testimony of 17
witnesses—Bramhall, Debbie Saroff, Crubel, Wherrel, Ballou, Roger Schultz, Tim
Schultz, any representative of Schultz Construction Company, Gleason, Warner, Ince,
Mills, McCallum, any representative of Dial Realty, Fehr, Hilgers, Williams—as
irrelevant. The first question we must examine is whether this issue was adequately
preserved for appeal.

When the district judge granted the City's motion to exclude the testimony of these
witnesses, landowner submitted supplemental responses to the City's first set of
interrogatories as a written proffer of the witnesses' testimony. Those responses contained
the substance of the testimony, and we therefore agree that the issue of admission of the
testimony of these witnesses was preserved for appeal. See K.S.A. 60-405; State v.
Evans, 275 Kan. 95, 99, 62 P.3d 220 (2003) ("The proponent of excluded evidence has
the duty of making known the 'substance' of the expected evidence in a proffer. [Citation
omitted.] A formal offer of proof in question and answer form is not required if an
adequate record is made in a manner that discloses the evidence sought to be
introduced.").

Despite preservation for appeal, the issue of whether testimony from 14 of the 17
witnesses should have been permitted has now been abandoned. Landowner's brief to this
court identified only three of the witnesses—Marsden, Bramhall, and a representative of
Schultz Construction Company—as exemplary of the trial judge's alleged exclusion error.
No explanation was offered on how the testimony of these 3 related to that of the 14
others. Without such an explanation, our review of the merits on the 14 witnesses is
rudderless and, ultimately, impossible. This is precisely why a "'point raised only
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incidentally in a brief but not argued there is deemed abandoned,'" and we will not
address the exclusion of those 14 witnesses' testimony here. National Bank of Andover v.
Kansas Bankers Surety Co., 290 Kan. 247, 281, 225 P.3d 707 (2010) (quoting Cooke v.
Gillespie, 285 Kan. 748, Syl. ¶ 6, 176 P.3d 144 [2008]).

We can address the merits on Marsden, Bramhall, and the representative of
Schultz.

Landowner's proffer on Marsden indicated that he would testify about the meat
processing plant meeting United States Department of Agriculture regulations on food
safety. Landowner contends this evidence supported its theory that the property had a
special use relevant to the replacement cost method of valuation.

Although it is true that the existence of a property's special use may be relevant to
a party's argument that replacement cost is the most appropriate method of valuation, in
this case, landowner appears to use the phrase "special use" as a synonym for the more
general "best and most advantageous use." The descriptor "special use" is intended to
convey that there is no comparable market data an appraiser might use to value a
property. See Eisenring v. Kansas Turnpike Authority, 183 Kan. 774, 779, 332 P.2d 539
(1958). And it was essential that the descriptor be applicable before the 1999 amendment
to K.S.A. 26-513 if a party wanted to use an appraisal method other than comparable
sales. See City of Wichita v. Eisenring, 269 Kan. at 774. Now, however, the concept of
"best and most advantageous use" or "highest and best use" is used in both K.S.A. 26-
513(d) and PIK Civ. 4th 131.05 as the use an eminent domain jury should consider when
awarding just compensation. If property can be used for more than one purpose, the tract
should be valued at its highest and best use. See 4 Nichols on Eminent Domain § 12B.13,
p. 12B-113 (3d. ed.1997). In this case, landowner never argued that there was no
17

ascertainable market for the property; instead, it merely argued that the best and most
advantageous use of the property was as a meat processing plant.

Regardless, there was no dispute at trial that landowner operated a meat
processing plant on the subject property. And Saroff testified that the plant was
complying with and would comply with USDA regulations. While Marsden's testimony
was potentially relevant to the viability of either a special use or a highest and best use,
we see nothing in the proffer that would have added to what Saroff's testimony already
provided. Although the trial judge's exclusion of Marsden's testimony as irrelevant may
have been erroneous, its exclusion as cumulative would not have been. State v. Reed, 282
Kan. 272, 280, 144 P.3d 677 (2006) (court has power to exclude evidence that is
cumulative); see also Robbins v. City of Wichita, 285 Kan. 455, 472, 172 P.3d 1187
(2007) (if district court reaches correct result, decision will be upheld even if it relied
upon wrong ground or assigned erroneous reasons for its decision). There is no prejudice
from any error in analysis; and landowner is not entitled to reversal because of the
exclusion.

Turning to Bramhall, landowner intended to call him to testify about a February
18, 2004, proposal he had prepared on the cost of refrigeration equipment for the meat
processing plant. Bramhall also would have testified that the existing refrigeration system
would be less expensive to operate than a new one. Landowner intended for Heavey to
use Bramhall's proposal in calculating the value of the property. The district judge
excluded Bramhall's testimony because his proposal was too remote in time from the date
of the taking.

The question of whether evidence concerns material too remote in time to be
admissible lies within the discretion of the trial court. Adrian v. Elmer, 178 Kan. 242,
247, 284 P.2d 599 (1955); see also Miller v. Glacier Development Co., 284 Kan. 476,
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480, 161 P.3d 730 (2007) (discretion abused when comparable sales from 7 to 8 years
earlier admitted). Temporal remoteness is one of the factors a district court should
consider when acting as a gatekeeper for admission of evidence in an eminent domain
trial. See Mooney, 283 Kan. at 619 (remoteness of comparable sale considered).

Here, landowner does not present any argument on appeal to respond to the trial
judge's assessment of Bramhall's report as too remote. Instead, landowner focuses only
on the importance of Bramhall's report and how it would have factored into Heavey's
replacement cost valuation.

We hold that the district judge did not abuse his discretion when he ruled that the
3-year-old proposal for refrigeration equipment was too remote in time from the date of
the taking to be admissible in the trial of this eminent domain action. There was no
dispute about either date, and thus the only factual finding necessary to the judge's
decision was supported by substantial competent evidence; the judge did not rely on an
erroneous interpretation of the governing law; and we cannot say that no reasonable
person would have arrived at the same decision. See State v. Gonzalez, 290 Kan. 747,
755-57, 234 P.3d 1 (2010) (multiple possibilities for abuse of discretion standard
discussed). This holding makes reaching the argument actually advanced on appeal by
landowner—that Bramhall's testimony about his proposal would have provided critical
support to Heavey—unnecessary. Even if landowner believes the evidence was
important, it was properly excluded as too remote in time.

Finally, we address landowner's assertion on appeal that the trial judge should not
have excluded testimony from a representative of Schultz Construction Company. The
company prepared an estimate to rebuild the meat processing plant, which landowner
intended Heavey to rely upon. Landowner argues that testimony from a representative of
19

Schultz also was relevant and essential to support Saroff's testimony on replacement cost,
because Saroff's valuation was based, in turn, on Heavey's report.

Landowner did not identify a representative from the company as an expert, and
any representative would therefore have to have been treated as a lay witness. Even if the
type of testimony landowner desired to admit from the representative could have been
characterized theoretically as compliant with the statutory requirements in K.S.A. 60-
456(a) and K.S.A. 60-419, no particular person responsible for preparation of the rebuild
proposal was ever identified by landowner. Without a proffer as to a particular individual,
we are not in a position to review the decision of the trial judge on relevance. Landowner
bore the burden of making and preserving a record sufficient to support its claims on
appeal. See K.S.A. 60-405; Evans, 275 Kan. at 99. Without such a record, this claim of
error fails.

2. Limitation of Saroff's Testimony

Landowner also argues on appeal that the trial judge placed too many restrictions
on the testimony of Saroff.

It is apparent from the trial transcript that landowner's strategy at trial was to admit
evidence of various components or aspects of calculation of replacement cost without any
expert testimony on how that calculation should be performed, leaving that task to the
jury. Statements of landowner's counsel, in particular, demonstrate that he did not think
his case required an independent expert appraisal witness. Rather, Saroff, as
representative of the landowner, could be the only valuation witness, and he could testify
like an expert and rely upon the hearsay opinions of Heavey and Larva. See, e.g., City of
Wichita v. Eisenring, 269 Kan. at 782 ("'Information acquired from others, though
generally not admissible as an independent fact, may be sufficient to qualify an expert
20

and to supply a partial basis for his opinion.'"); Board of Sedgwick County Comm'rs v.
Kiser Living Trust, 250 Kan. 84, 96, 825 P.2d 130 (1992) ("[O]nce a witness has
qualified as an expert, a court cannot regulate the factors used or the mental process by
which the witness arrives at the conclusion. These matters can only be challenged by
cross-examination testing the witness' credibility."). The trial judge stated that Saroff
could not qualify himself as an expert and could not discuss opinions from Heavey and
Larva as the basis for formation of his lay opinion; he could "state the basis for his
opinion, and if it happened to be reading some of [an appraisal textbook], I'm going to
allow it."

"It is well settled a landowner is a competent witness to testify as to the value of
his property." City of Wichita v. Chapman, 214 Kan. 575, 580, 521 P.2d 589 (1974)
(citing City of Wichita v. May's Company, Inc., 212 Kan. 153, 155, 510 P.2d 184 [1973];
Urban Renewal Agency v. Tate, 196 Kan. 654, 414 P.2d 28 [1966]; Taylor v. State
Highway Commission, 182 Kan. 397, Syl. ¶ 6, 320 P.2d 832 [1958]; Randle v. Kansas
Turnpike Authority, 181 Kan. 416, 420, 312 P.2d 235 [1957]; and). But "[t]he
qualification of a landowner to testify as to the value of his land is not dependent on a
showing of a knowledgeable background. It is based on the presumption the landowner
has acquired knowledge by virtue of his ownership. Lack of knowledge is subject to
exposure by the condemning authority." 212 Kan. at 155.

Landowner contends that this court held in Mooney that, "[w]hen a landowner
gives opinion testimony on the value of his own land, he does so in the capacity of an
expert in the value of that particular property, even though he is not an expert on property
values generally." As support, it states:

"Right after this Court mentioned the rule that a landowner is a competent witness on the
value of his own land, this court went on to say: 'Once a witness is qualified as an expert,
the court cannot regulate the factors used by the expert or the mental process employed to
21

reach a conclusion; those matters should be tested by cross-examination.' 283 Kan. at
619."

Landowner misreads this passage in Mooney. The language upon which it relies is
merely a restatement of the landowners' arguments in that case, not the opinion's holding.
See 283 Kan. at 619-24. Mooney does not stand for the proposition that a landowner is
equivalent to an appraisal expert or that he or she may parrot the opinions of experts as
support for his or her fair market value. This is, in essence, what landowner sought to do
here, and it was not error for the trial judge to disallow it. A landowner cannot do
indirectly what he or she is unqualified to do directly.

Saroff could testify, as he did, to his own opinion of fair market value and, thus,
just compensation: $15 million, with $10 million for improvements on the tracts and $5
million for the land. We also note that the trial judge's restrictions did not prevent Saroff
from testifying about his business relationship with Heavey and Heavey's assistance in
valuing the property and about his interaction with Larva and Larva's inspection of the
property. This testimony surely accomplished at least some of what landowner hoped to
accomplish, burnishing Saroff's nonexpert testimony about value with an expert cloth.

But Saroff was not qualified, as a lay landowner, to assemble the components of
and calculate replacement cost, i.e., the cost to replace existing improvements on the land
minus depreciation plus the value of the land evidenced through comparable sales. See
Mooney, 283 Kan. at 622. Nor was the jury, unguided by expert testimony or similarly
established or recognized authority. It was landowner's burden to ensure that such expert
testimony or other authority was presented, and it failed to carry it. This failure is not
attributable to the trial judge's ruling limiting Saroff's testimony.

3. Exclusion of Larva Deposition

22

Landowner also argues on appeal that it should have been permitted to use the
deposition of Larva in place of live testimony to lay the foundation for admission of
Larva's report on the cost of replacing the meat processing plant. Heavey relied in part on
Larva's report in his valuation of the subject property, and landowner intended to admit
Heavey's and Larva's reports during Saroff's testimony. Landowner argues the hearsay
exception in K.S.A. 60-460(c)(1) and the authorization for use of a deposition at trial in
K.S.A. 60-232(a)(3)(B) permitted it to use Larva's deposition as it sought to here.

This issue of statutory interpretation means our standard of review is de novo. See
Wolfe Electric, Inc. v. Duckworth, 293 Kan. 375, 400, 266 P.3d 516 (2011). In addition,

"[w]hen courts are called upon to interpret statutes, the fundamental rule
governing our interpretation is that 'the intent of the legislature governs if that intent can
be ascertained. The legislature is presumed to have expressed its intent through the
language of the statutory scheme it enacted.' State ex rel. Stovall v. Meneley, 271 Kan.
355, 378, 22 P.3d 124 (2001). For this reason, when the language of a statute is plain and
unambiguous, courts 'need not resort to statutory construction.' In re K.M.H., 285 Kan.
53, 79, 169 P.3d 1025 (2007). Instead, '[w]hen the language is plain and unambiguous, an
appellate court is bound to implement the expressed intent.' State v. Manbeck, 277 Kan.
224, Syl. ¶ 3, 83 P.3d 190 (2004)." Board of Sumner County Comm'rs v. Bremby, 286
Kan. 745, 754, 189 P.3d 494 (2008).

This issue also requires us to consider relevance, and our multistep analysis reviewed
above applies here as well. See Shadden, 290 Kan. at 817 (probative value of evidence
reviewed under abuse of discretion; materiality reviewed de novo; legal conclusion
reviewed de novo).

K.S.A. 60-460(c) allows admission of a deposition at trial in certain
circumstances:

23

"Subject to the same limitations and objections as though the declarant were testifying in
person, (1) testimony in the form of a deposition taken in compliance with the law of this
state for use as testimony in the trial of the action in which offered or (2) if the judge
finds that the declarant is unavailable as a witness at the hearing, testimony given . . . in a
deposition taken in compliance with laws for use as testimony in the trial of another
action, when . . . (B) the issue is such that the adverse party on the former occasion had
the right and opportunity for cross-examination with an interest and motive similar to that
which the adverse party has in the action in which the testimony is offered . . . ."
(Emphasis added.)

Under the plain language of this hearsay exception, admission of Larva's
deposition would have been permitted only if the testimony it contained would have been
admissible if he were live at trial. Landowner cannot meet this test because Larva's
deposition testimony about his proposal for rebuilding the meat processing plant cannot
pass the probative value prong of our relevance inquiry.

Larva based his estimate on a drawing provided by Redmond of Redmond and
Herndon. Saroff had hired Redmond to prepare a drawing of a new meat processing plant
to replace the one existing on the subject property. The record demonstrates, however,
that the plant depicted in Redmond's drawing bore little resemblance to the existing plant.
The most glaring disconnect: Redmond's plant was 52,400 square feet while the existing
plant was 34,000 square feet.

Larva's testimony, even if live, would have suffered from another infirmity as
well: Larva had no personal knowledge of the existing plant's size, dimensions, or
equipment. He admitted at his deposition that he did not know how his estimate for the
replacement building related to the current plant. In short, Larva lacked the knowledge,
personal or acquired at the trial, required of an expert under K.S.A. 60-456(b)(1).

24

Landowner's argument based on K.S.A. 60-232(a)(3)(B) also is unavailing. The
statute provides:

"At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or
all of a deposition, so far as admissible under the rules of evidence applied as though the
witness were then present and testifying, may be used against any party who was present
or represented at the taking of the deposition or who had reasonable notice thereof, in
accordance with any of the following provisions: . . . (3) The deposition of a witness,
whether or not a party, may be used by any party for any purpose if the court finds that:
. . . (B) the witness is at a greater distance than 100 miles from the place of trial or
hearing, or is out of the state of Kansas, unless it appears that the absence of the witness
was procured by the party offering the deposition." (Emphasis added.)

Although that statute provides that a deposition may be used at a trial if the
witness is more than 100 miles away and the sponsoring party did not procure the
witness' absence, it does not empower a party wishing to use a deposition to disregard
other evidentiary rules and requirements. Because Larva's deposition would have failed
both the probative value prong of our relevance test as well as the K.S.A. 60-456(b)(1)
knowledge requirement, it remained inadmissible despite K.S.A. 60-232(a)(3)(B).

4. Restriction of Heavey Testimony

Landowner also argues that the district judge placed improper restrictions on the
testimony of its valuation expert, Heavey.

In its initial and supplemental motions in limine, the City asked the trial judge to
prohibit Heavey's testimony regarding the value of Manhattan Meats or Rainbo Bread,
any proposed multi-use shopping/marketplace/dining development, the fair market value
of the subject property, the replacement cost method of appraisal, and depreciation. The
trial judge ruled that the opinions of Heavey were "admissible as to the cost of the
25

replacement of the existing buildings and land within the subject tract." In other words,
Heavey was not prevented from testifying. To the extent his testimony was restricted at
all, it was cabined only by the limitation of the entire action to jury determination of fair
market value. See Miller v. Bartle, 283 Kan. 108, 114, 150 P.3d 1282 (quoting Sutton v.
Frazier, 183 Kan. 33, 37-38, 325 P.2d 338 [1958]) (sole issue in eminent domain
proceeding is amount of compensation due). Heavey was free to give his replacement
cost-based opinion on fair market value, including components such as the values of the
Rainbo Bread and Manhattan Meats improvements and depreciation.

The record reflects that Heavey attended the trial, but landowner chose not to call
him to testify. Instead, landowner attempted unsuccessfully during Saroff's testimony to
introduce an appraisal prepared by Heavey using Larva's estimate for the replacement
meat processing plant. The record does not explain why landowner made this tactical
decision or why, when it was clear it had failed, it did not jettison the tactic for the more
conventional and probably more successful sponsorship of Heavey's direct testimony
live.

Landowner is correct that our precedent has held that an expert in an eminent
domain trial may testify to hearsay matters for the purpose of giving information upon
which he or she relied in reaching a valuation conclusion. See City of Wichita v.
Eisenring, 269 Kan. at 781-82 ("[T]he hearsay rule's application is limited with regard to
expert testimony in eminent domain cases . . . . 'Information acquired from others, though
generally not admissible as an independent fact, may be sufficient to qualify an expert
and to supply a partial basis for his opinion.'"); Board of Sedgwick County Comm'rs, 250
Kan. at 96 ("[O]nce a witness has qualified as an expert, a court cannot regulate the
factors used or the mental process by which the witness arrives at the conclusion. These
matters can only be challenged by cross-examination testing the witness' credibility.").
But this argument misses the source of any problem on Heavey's testimony. The problem
26

was not that the trial judge disallowed appropriate opinions and support for them. The
problem was that landowner did not call Heavey to the stand. Error, if any, must be laid
at landowner's feet. See State v. Murray, 285 Kan. 503, 522, 174 P.3d 407 (2008) (invited
error no basis for relief).

5. Exclusion of Comparable Sales

Landowner's last evidentiary challenge on this appeal concerns what it says were
its unsuccessful efforts to present evidence of two sales it characterizes as comparable.
Neither was considered by the City's experts.

One of these sales was made in 2004 to Pizza Hut and the other in 1995 to KDOT.
At oral argument before us, landowner's counsel abandoned this claim of error regarding
the KDOT sale, which, he conceded, was too remote in time from the taking.

Landowner asserts that it planned to get evidence of the Pizza Hut sale for
$13,640,934 before the jury during Saroff's testimony, specifically, when he was
instructed to "draw some numbers" on the easel. The City's objection and the court's
ensuing ruling having to do with Saroff's reliance on the nontestifying Heavey and, in
turn, the absent Larva, stopped Saroff before he could comply with the direction to "draw
some numbers." But landowner says that Saroff's planned demonstration would have
begun with the Pizza Hut sale number. Landowner also claims that it attempted to
introduce the same number during the cross-examination of the City's experts.

The problem for us on appeal is that landowner directs us to no ruling by the
district court on the admissibility of the Pizza Hut sale, and our search of the record has
uncovered none. Under Supreme Court Rule 6.02 (2011 Kan. Ct. R. Annot. 39), this
court presumes the district court did not rule on an issue when an appellant fails to
27

provide a record citation to the ruling in its brief. See Kansas Medical Mut. Ins. Co. v.
Svaty, 291 Kan. 597, 623, 244 P.3d 642 (2010) (citing Southwestern Bell Tel. Co. v.
Beachner Constr. Co., 289 Kan. 1262, 1275, 221 P.3d 588 [2009]). Without a ruling from
the district court on this issue, we cannot proceed with formless appellate review.

Instructions to the Jury

Landowner's other appellate issue focuses on jury instructions. Before the trial
court, it sought PIK Civ. 4th 131.08 and 131.09 concerning the special or unique use of
the subject property. The trial judge refused to give either of these instructions.

"'It is the duty of the trial court to properly instruct the jury upon a party's theory
of the case. Error regarding jury instructions will not demand reversal unless it results in
prejudice to the appealing party. Instructions in any particular action are to be considered
together and read as a whole, and where they fairly instruct the jury on the law governing
the case, error in an isolated instruction may be disregarded as harmless. If the
instructions are substantially correct, and the jury could not reasonably be misled by
them, the instructions will be approved on appeal.'" Wolfe Electric, Inc., 293 Kan. at 383
(quoting In re Care & Treatment of Foster, 280 Kan. 845, Syl. ¶ 10, 127 P.3d 277
[2006]).

There must be evidence to support a party's theory before it is entitled to a jury
instruction on it. See Guillan v. Watts, 249 Kan. 606, 617, 822 P.2d 582 (1991).

The "Notes on Use" for both requested PIK instructions read:

"Because of the 1999 amendment to K.S.A. 26-513(e), it will be a rare case, if
any, in which giving this instruction will be appropriate. The amendment provided: 'The
fair market value shall be determined by use of the comparable sales, cost or
capitalization of income appraisal methods or any combination of such methods.'
Because multiple methods of appraisal are allowed to determine market value, there will
28

be few cases, if any, where 'the value of the property cannot be determined by market
value' using one or more of those methods. The comparable sales method is no longer the
preferred method of appraisal. Creason v. Unified Gov't of Wyandotte County, 272 Kan.
482, 33 P.3d 850 (2001). When a landowner contends that the property is of a type not
customarily bought and sold or that it serves a useful or special purpose, the landowner
ordinarily will offer evidence of value using the cost or capitalization of income methods.
In such cases, it ordinarily will suffice to use PIK 4th 131.05, Fair Market Value—
Definition, rather than this instruction."

In short, the two instructions sought by landowner here are outmoded. They were
designed to be used in an era when the comparable sales method of valuation was the
norm, the clearly preferred method. They were intended to support an outlier method of
valuation, either replacement cost or capitalization of income, for a unique or highly
unusual property. The current wording of K.S.A. 26-513(e) already provides for a unique
or highly unusual property by making all of the three methods of valuation equally
acceptable routes to establish fair market value. None of the methods requires
reinforcement other than any it may draw from the evidence marshaled by the parties in a
given case.

Here, jurors were instructed that they were free to consider replacement cost and
capitalization of income methods as well as comparable sales. They knew that they must
take into account "all of the possible uses to which the property could have been put,
including the best and most advantageous use to which the property was reasonably
adaptable." They knew that they needed to look at any existing use that had been
"profitably carried on."

This was plenty. The instructions, considered together and read as a whole, were
correct. The jury could not reasonably have been misled by them. The trial judge did not
err by refusing to give PIK Civ. 4th 131.08 and 131.09.

29

CONCLUSION

Because we hold that the landowner's challenges to the trial judge's evidentiary
rulings lack merit and/or resulted in no prejudice, and the jury instructions given in this
eminent domain case were legally sound, the judgment of the district court is affirmed.

LUCKERT, J., not participating.
FRANKLIN R. THEIS, District Judge, assigned.
1
MICHAEL J. MALONE, District Judge, assigned.
1


1
REPORTER'S NOTE: District Judge Theis was appointed to hear case No. 102,235
vice Justice Luckert pursuant to the authority vested in the Supreme Court by Art. 3, §
6(f) of the Kansas Constitution. Pursuant to the authority vested in the Supreme Court by
art. 3, § 6(f) of the Kansas Constitution, Judge Malone was appointed to hear the same
case to fill the vacancy on the court created by the retirement of Chief Justice Robert E.
Davis.