Nauheim v. City of Topeka

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 114,271

CHARLES NAUHEIM d/b/a KANSAS FIRE AND SAFETY EQUIPMENT, and
HAL G. RICHARDSON d/b/a BUENO FOOD BRAND, TOPEKA VINYL TOP, and
MINUTEMAN SOLAR FILM,
Appellants,

v.

CITY OF TOPEKA, KANSAS,
Appellee.

SYLLABUS BY THE COURT

1.
Statutory interpretation presents a question of law subject to de novo review.
When interpreting a statute, a court first attempts to discern legislative intent through the
statutory language, giving common words their ordinary meanings.

2.
Whenever federal funding is not involved, and real property is acquired by any
condemning authority, K.S.A. 2017 Supp. 26-518 identifies two distinct situations
requiring the authority to pay relocation benefits to a displaced person: (a) when the
acquisition occurs through negotiation in advance of a condemnation action, or (b) when
the acquisition occurs through a condemnation action.

3.
Not every acquisition of real property by a condemning authority is covered by
K.S.A. 2017 Supp. 26-518.

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4.
The phrase "negotiation in advance of a condemnation action" in K.S.A. 2017
Supp. 26-518 is both temporal and contextual. To be entitled to relocation benefits, a
displaced person must show: (a) negotiation resulted in the property's acquisition before
any eminent domain proceedings commenced; and (b) a condemnation would have
followed had that negotiation failed.

5.
Whether a negotiation was in advance of a condemnation action under K.S.A.
2017 Supp. 26-518 is a question of fact to be established by a preponderance of the
evidence. A preponderance of the evidence means evidence that shows a fact is more
probably true than not true.

6.
A finder of fact should consider any relevant evidence that might reasonably bear
on establishing whether a negotiation was in advance of a condemnation action under
K.S.A. 2017 Supp. 26-518. Evidence is relevant if it tends to establish a material fact at
issue.

Review of the judgment of the Court of Appeals in 52 Kan. App. 2d 969, 381 P.3d 508 (2016).
Appeal from Shawnee District Court; RICHARD D. ANDERSON, judge. Opinion filed January 11, 2019.
Judgment of the Court of Appeals reversing the district court is affirmed on the issue subject to review.
Judgment of the district court is reversed, and the case is remanded.

John R. Hamilton, of Hamilton, Laughlin, Barker, Johnson & Jones, of Topeka, argued the cause,
and David A. Brock, of the same firm, was with him on the brief for appellants.

Shelly Starr, assistant city attorney, argued the cause and was on the brief for appellee.

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The opinion of the court was delivered by

BILES, J.: Whenever federal funding is not involved, and real property is acquired
by a condemning authority through negotiation in advance of a condemnation action or
through a condemnation action, the authority must pay relocation benefits to any person
who moves from the property as a direct result of the acquisition. K.S.A. 2017 Supp. 26-
518(a) (condemning authority's duties to displaced person in acquiring real property); 42
U.S.C. § 4601(6)(A)(i)(I) (2012) (definition of displaced person). This appeal seeks to
define what the statutory phrase "negotiation in advance of a condemnation action"
means. The dispute arises from a claim by former tenants for relocation benefits after the
City of Topeka negotiated and acquired property where the tenants operated their
businesses.

We hold the statute is both temporal and contextual, so it is a question of fact
whether a negotiation was in advance of a condemnation action. We reject the tenants'
contention that displaced persons are owed relocation benefits anytime a condemning
authority acquires real property for a public project. The statute is not that generous.

We affirm the Court of Appeals' judgment although we see the potential evidence
that might prove such a claim more expansively than the panel did. See Nauheim v. City
of Topeka, 52 Kan. App. 2d 969, Syl. ¶ 5, 381 P.3d 508 (2016) ("[A] displaced person
must prove that the condemning authority either threatened or took affirmative action
towards condemnation prior to the acquisition."). The case is remanded for the district
court to determine whether condemnation would have followed had the City's negotiation
with the property owner failed.

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 FACTUAL AND PROCEDURAL BACKGROUND

In 2011, the City authorized by ordinance a public works project to replace a
structurally deficient drainage system on a tributary to Butcher Creek to alleviate
potential flooding within the city limits. The authorizing language did not mention
condemnation. After exchanging terms with the owner during 2013, the City bought real
property where commercial tenants operated their businesses. During the negotiation, the
City made clear it wanted the property vacant before obtaining title. The owner complied,
and the transaction concluded without the City exercising its eminent domain power.

Charles Nauheim and Hal G. Richardson, the former tenants, relocated their
respective businesses to other property. They sued the City for relocation costs under
K.S.A. 2017 Supp. 26-518, which states:

"Whenever federal funding is not involved, and real property is acquired by any
condemning authority through negotiation in advance of a condemnation action or
through a condemnation action, and which acquisition will result in the displacement of
any person, the condemning authority shall:

"(a) Provide the displaced person, as defined in the federal uniform relocation
assistance and real property acquisition policies act of 1970, fair and reasonable
relocation payments and assistance to or for displaced persons." (Emphases added.)

The City argued the statute did not apply because it never intended to condemn the
property had the negotiation failed. It also contended neither tenant was a "displaced
person" as statutorily defined. The City claimed the tenants relocated because of
agreements with the property owner—also their landlord. All parties moved for summary
judgment.

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 The district court granted the City's motion. It held the tenants were not displaced
persons as defined by law. It also found the uncontroverted facts proved the property
acquisition was not made "in advance of a condemnation action," but occurred instead by
the City exercising its corporate power. The tenants appealed.

A Court of Appeals panel considered three issues: (1) Whether the tenants were
displaced persons as defined by K.S.A. 2017 Supp. 26-518(a) and 42 U.S.C.
4601(6)(A)(i)(I); (2) whether the phrase "negotiation in advance of a condemnation
action" in K.S.A. 2017 Supp. 26-518 required a displaced person to prove a condemning
authority's intent to condemn; and (3) whether the summary judgment record supported
the City's claim it never intended to condemn the property. The panel affirmed in part,
reversed in part, and remanded for the district court to resolve disputed material facts.
Nauheim, 52 Kan. App. 2d at 970.

As to the first question, the panel reversed the district court and held the tenants
qualified as displaced persons because "the City's acquisition of the subject property was
contingent upon the property being vacant at the time of closing." 52 Kan. App. 2d at
973. In its view, no other motive existed "for the landlord to force the tenants to relocate
from the property other than the fact that it was a necessary prerequisite for the sale of the
property to the City." 52 Kan. App. 2d at 974. Therefore, the panel continued, the tenants'
relocation "was an event that was inseparably linked to the sale." 52 Kan. App. 2d at 975.

As for the meaning of the statutory phrase "negotiation in advance of a
condemnation action," the panel agreed with the district court that it required a displaced
person to show a condemning authority intended to condemn the subject property by
proving it "either threatened or took affirmative action towards condemnation prior to the
acquisition." 52 Kan. App. 2d 969, Syl. ¶ 5. The panel reasoned:

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 "Not every acquisition made by a condemning authority is covered by the statute, only
those acquisitions that are done 'through negotiation in advance of a condemnation action
or through a condemnation action.' To interpret K.S.A. 2015 Supp. 26-518 in the fashion
urged by the tenants, the phrase 'in advance of a condemnation action' would be rendered
mere surplusage. We presume that the legislature does not intend to enact useless
legislation, and we are obligated to interpret a statute so that part of it does not become
surplusage." 52 Kan. App. 2d at 977.

The panel also determined a genuine issue of material fact remained about whether
the City negotiated with the landlord in advance of a condemnation action. 52 Kan. App.
2d at 979-80. The panel noted the record included emails from City staff and the
landlord's affidavit supporting an argument that the City intended to condemn the
property if negotiation failed. These disputed facts made summary judgment improper,
the panel held. 52 Kan. App. 2d at 979. It reversed and remanded the case to the district
court for further proceedings.

The tenants petitioned this court to review the statutory interpretation question,
especially the panel's decision that a displaced person must prove a condemning authority
threatened condemnation or took affirmative action to condemn the property before
acquisition. We granted review. Jurisdiction is proper. K.S.A. 20-3018(b) (petitions for
review of Court of Appeals decision); K.S.A. 60-2101(b) (Supreme Court has jurisdiction
to review Court of Appeals decisions upon petition for review).

The City does not cross-petition on the issues the panel decided adversely to its
argument, i.e., whether the tenants were displaced persons and whether disputed material
facts prevented summary judgment. That much is settled on review in the tenants' favor.
See Supreme Court Rule 8.03(b)(6)(C)(i) (2019 Kan. S. Ct. R. 53) (as amended July 1,
2018); In re Adoption of C.L., 308 Kan. 1268, 1277, 427 P.3d 951 (2018); Ullery v.
Othick, 304 Kan. 405, 415, 372 P.3d 1135 (2016).
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 ANALYSIS

The tenants argue they should not have to prove the City had an intent to condemn
to receive statutory relocation assistance. We disagree. But we hold the evidence that
might prove whether an acquisition occurred through "negotiation in advance of a
condemnation action" is broader than the panel's perspective.

Standard of review

Statutory interpretation presents a question of law subject to de novo review.
Central Kansas Medical Center v. Hatesohl, 308 Kan. 992, 1002, 425 P.3d 1253 (2018).
When interpreting a statute, a court first attempts to discern legislative intent through the
statutory language, giving common words their ordinary meanings. Whaley v. Sharp, 301
Kan. 192, 196, 343 P.3d 63 (2014). When the language is plain and unambiguous, the
court must give effect to its express language, rather than determine what the law should
be. The court will not speculate about legislative intent and will not read the statute to
add something not readily found in it. Graham v. Dokter Trucking Group, 284 Kan. 547,
Syl. ¶ 3, 161 P.3d 695 (2007). It is only when the statute's language is unclear or
ambiguous that the court employs the canons of statutory construction, consults
legislative history, or considers other background information to ascertain its meaning.
Whaley, 301 Kan. at 196.

Discussion

Municipalities can acquire or receive property for municipal purposes without
resorting to condemnation. See K.S.A. 12-101, Second (authority to purchase or receive
real property for city use); K.S.A. 12-101, Fourth (authority to make contracts relating to
property). They can also acquire property for municipal purposes through condemnation
under the Kansas Eminent Domain Procedure Act, K.S.A. 2017 Supp. 26-501 et seq.
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 The tenants, of course, argue they should not need to file a lawsuit and prove the
City's intention to condemn had the negotiation failed. They contend that since their
property was acquired by a condemning authority through negotiations, this necessarily
means the authority acquired it "in advance of" condemnation. They claim this is the
statute's plain meaning. They also assert the statute is "designed to provide relocation
assistance in order to avoid putting the burden and expense of a public benefit on
individuals." They further argue, "[T]he taxes of the public should pay for the damages
incurred as a result of the public project." Forcing displaced persons to sue and prove
facts about a condemning authority's intentions, they claim, is contrary to legislative
intent.

Also predictably, the City argues the statute does not apply. It claims the lower
courts' approach "is a reasonable, practical standard fulfilling both the intent of the
legislature and the plain language of the statute." The City characterizes as unreasonable
any rule that a condemning authority pay relocation costs "each and every time it
acquired property . . . ." Finally, the City contends the evidentiary record shows it "was
not poised to condemn this property and could have completed the project without
acquiring the property."

The panel held that if the statute did not require a displaced person to prove a
condemning authority's intent to condemn when the acquisition was done through
negotiation, the authority would always have to provide relocation benefits when it
acquired real property. 52 Kan. App. 2d at 977. The district court had the same view and
explained,

"According to [the tenants'] suggested reading of K.S.A. 26-518, every
negotiation conducted by a condemning authority—regardless of how the acquisition is

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 being made—would be 'in advance of a condemnation action' simply because the
condemning authority holds that option to condemn. Put another way, under this reading,
there would never be a negotiation not in advance of a condemnation action, and the
condemning authority would have to pay relocation benefits for every acquisition. Such
an interpretation is clearly against the legislative intent behind K.S.A. 26-518, because
the legislature added the qualifier 'through negotiation in advance of a condemnation
action or through a condemnation action.'"

As we see it, K.S.A. 2017 Supp. 26-518 identifies two distinct situations in which
a condemning authority must provide relocation benefits to a displaced person: (1) when
the acquisition occurs through negotiation before a condemnation action, or (2) when the
acquisition occurs through a condemnation action.

As to the first circumstance, and as readily seen, the statute does not provide that
anytime a condemning authority acquires property it must pay relocation benefits.
Instead, those benefits are available when property is acquired "in advance of a
condemnation action." It plainly does not state relocation benefits are paid as part of any
public project. And all agree the latter circumstance, i.e., acquisition through a
condemnation action, is not involved here. K.S.A. 2017 Supp. 26-501 through 26-518
and K.S.A. 2017 Supp. 26-501a and 26-501b set out the procedure for exercising eminent
domain power. K.S.A. 2017 Supp. 26-501(a); see also Creegan v. State, 305 Kan. 1156,
1160, 391 P.3d 36 (2017). And before starting a condemnation action, a city must adopt
and publish a resolution authorizing eminent domain proceedings. K.S.A. 2017 Supp. 26-
201; see also General Building Contr., L.L.C. v. Board of Shawnee County Comm'rs, 275
Kan. 525, 536-38, 66 P.3d 873 (2003). None of that happened here.

Returning to the statutory phrase "negotiation in advance of a condemnation
action," the language is both temporal and contextual. To be entitled to relocation
benefits, a displaced person must show: (1) a negotiation resulted in the property's
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acquisition before any eminent domain proceedings commenced; and (2) a condemnation
would have followed had that negotiation failed. A plain reading of the statute
demonstrates this.

The first element is temporal as seen by the phrase "in advance of." In ordinary
usage, "in advance" is defined as "before . . . an anticipated event." Merriam-Webster's
Online Dictionary, https://www.merriam-webster.com/dictionary/advance; see also
Webster's New World College Dictionary 20 (5th ed. 2016) ("in advance" is defined as
"in front," "before due," and "ahead of time"). And the word "anticipate" is generally
understood to mean "to look forward to; expect." Webster's New World College
Dictionary 61 (5th ed. 2016). This timing element is not in dispute in this case, and it is
difficult to imagine when it would be.

The second element is where our present controversy lies. It provides that the
negotiation occur in a context in which eminent domain would have followed had
negotiations failed to secure the property for the condemning authority. But does this
mean, as the district court held, that "negotiation in advance of a condemnation action"
occurs "only once a municipality has threatened condemnation or has taken some
affirmative step towards instituting a condemnation action, and when the municipality
has entered negotiations for purposes of efficiency and fairness as to the condemnation
action"? (Emphases added.) The panel thought so, but we conclude this too narrowly
construes what evidence might show entitlement to benefits. Whether a negotiation is in
advance of a condemnation action is a question of fact a claimant needs to prove by a
preponderance of the evidence.

"We have defined preponderance of the evidence as '"evidence which is of
greater weight or more convincing than the evidence which is offered in opposition to it."
Black's Law Dictionary 1182 (6th ed. 1990). In other words, a "preponderance of the

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 evidence" means that evidence which shows a fact is more probably true than not true.'
[Citations omitted.] Because this standard 'results in a roughly equal allocation of the risk
of error between litigants, we presume that this standard is applicable in civil actions
between private litigants unless "particularly important individual interests or rights are at
stake."' [Citations omitted.]" In re B.D.-Y., 286 Kan. 686, 691, 187 P.3d 594 (2008).

When determining whether a plaintiff meets that burden, the finder of fact should
consider any relevant evidence that might reasonably bear on this disputed question.
Evidence is relevant if it tends to establish a material fact at issue. K.S.A. 60-401(b). "All
relevant evidence is admissible unless it is prohibited by statute, constitutional provision,
or court decision." Kansas City Power & Light Co. v. Strong, 302 Kan. 712, 729, 356
P.3d 1064 (2015).

The lower courts erred by requiring a specific evidentiary showing that the
condemning authority either threatened or took affirmative action towards a
condemnation action. And while that evidence would be relevant, it is surely not the only
evidence that could cause a fact-finder to conclude a condemning authority would have
resorted to eminent domain after unsuccessful negotiation.

The record in this case highlights our point—without so narrowly requiring a
specific threat, affirmative action, or even proof of actual intent. It includes: (1) the
City's Ordinance No. 19553, which authorized the project but never mentioned
condemnation; (2) an engineering study providing two options to address the Butcher
Creek drainage issues, one of which did not require the property acquisition; (3) City
staff emails; and (4) City officials' statements, reflected in an affidavit supplied by the
landlord.

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 For example, three emails written during negotiations reflect:

(1) In July 2013, the City's real estate officer told the landlord:

"The Deputy City Attorney is concerned that the lease will allow the tenant to stay
beyond the 60-90 days and force the City to condemn their lease interest and force us to
pay relocation expenses, etc. I know you are working on some kind of arrangement with
them, so you may already have a resolution. But we will not be able to move forward
until that lease interest is resolved."

(2) In August, the City's deputy attorney told the landlord: "I don't want the City to
have to exercise its eminent domain power to purchase the leasehold interest of [a
tenant's business] should [that tenant] refuse to move to its new location."

(3) In October, the real estate officer again told the landlord:

"I suppose, if we do not close this transaction, that the City will then have to
condemn to get these properties. That is not a sure thing, as City management has been
very reluctant to use condemnation [and] the City Council is not happy to see that going
on.

"I guess we will wait until we get closer to closing to see where we
stand."

And the landlord's affidavit plainly states, "Through conversations with at least
two representatives, the City of Topeka indicated to Affiant that if negotiations failed, the
City would then have to condemn the properties." (Emphasis added.)

To be sure, the City has arguments demonstrating its counterpoint, which is why
the panel correctly remanded for the district court to resolve disputed facts, despite
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incorrectly imposing a higher evidentiary burden than the tenants would need to prevail.
Summary judgment is appropriate only when the material facts are uncontroverted.
K.S.A. 2017 Supp. 60-256(c)(2); see also Shamberg, Johnson & Bergman, Chtd. v.
Oliver, 289 Kan. 891, 900, 220 P.3d 333 (2009). Further proceedings are necessary to
explore whether the City's negotiations were in advance of a condemnation action under
K.S.A. 2017 Supp. 26-518.

Judgment of the Court of Appeals reversing the district court is affirmed on the
issue subject to review. Judgment of the district court is reversed, and the case is
remanded.

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