In the Missouri Court of Appeals
Eastern District
DIVISION TWO
LAND CLEARANCE FOR )
REDEVELOPMENT AUTHORITY OF THE ) No. ED107081
CITY OF ST. LOUIS, )
)
Respondent, ) Appeal from the Circuit Court of
) the City of St. Louis
vs. )
) Honorable David L. Dowd
James Townsend Osher, )
)
Appellant. ) Filed: April 21, 2020
Introduction
James Townsend Osher (“Appellant”) appeals from the trial court’s judgment awarding
him $573,000 as compensation for the Land Clearance Redevelopment Authority (“LCRA”)
condemning his property (“Property”) in the City of St. Louis and assessing $21,207.13 in costs
against him. Appellant brings eight points on appeal. First, Appellant argues the circuit court
erred in failing to assign his case to a general division once exceptions were filed. Second,
Appellant argues the circuit court erred in denying his request for a new judge. Third, Appellant
argues the circuit court erred in assessing costs against him. Fourth, Appellant argues the circuit
court erred in denying his request for a homestead allowance. Fifth, Appellant argues the circuit
court abused its discretion when it excluded evidence of the amount Appellant paid a leaseholder
for the extinguishment of its leasehold interest after the Property’s condemnation. Sixth,
Appellant argues the circuit court abused its discretion when it excluded photographic evidence
of Appellant’s experience in the construction and hotel industry, excluded photographic evidence
of recent developments in the City of St. Louis, and criticized him in front of the jury. Seventh,
Appellant argues the circuit court abused its discretion when it admitted photographs offered by
LCRA depicting his Property after the date of the taking. Lastly, Appellant argues the circuit
court erred in allowing LCRA to cross-examine one of Appellant’s witnesses regarding an
alleged fraudulent tax credit scheme to purchase the Property and other properties and to call a
witness to give opinion testimony regarding the same. We affirm.
Factual and Procedural Background
Pre-Trial
In December 2015, LCRA brought a condemnation action to take Appellant’s Property,
known as the “Buster Brown Building,” located at 1516-1530 North Jefferson Avenue in the
City of St. Louis, and over 500 other properties, to construct a new facility for the National
Geospatial-Intelligence Agency (“NGA”). The case was initially assigned to Judge David Dowd
in Division 2 of the St. Louis City Circuit Court, who set a condemnation hearing. On December
30, 2015, the then-presiding judge of the St. Louis City Circuit Court issued an order
(“December 2015 Order”) stating Appellant’s case was “specially assigned to Division 2 for all
further proceedings.” Appellant was served with process on March 18, 2016. On April 4, 2016,
a commissioners’ hearing was held to determine the fair market value of the Property, which
neither Appellant nor his attorney attended. In May 2016, the commissioners awarded
$817,589.59. LCRA deposited the award, with interest, in the circuit court and took title to the
Property. LCRA filed its exceptions to the commissioners’ award on May 31, 2016, and
2
Appellant filed his exceptions to the commissioners’ award on June 13, 2016. On July 7, 2016,
LCRA took the Property.
In November 2016, Appellant requested the case be transferred to Division 1 and
assigned to a trial judge under Local Rule 66.3.11 because exceptions were filed in May and June
2016. In December 2016, Appellant again requested the case be transferred to Division 1 and
assigned to a trial judge under Local Rule 66.3.1, seeking clarification from the circuit court
regarding the applicability of Local Rule 66.3.1 in condemnation proceedings. The circuit court
denied Appellant’s requests, stating “trial of the exceptions had been previously assigned to
Judge David Dowd on December 30, 2015.” On February 8, 2017, Appellant requested a change
of judge under Supreme Court Rules 55.01(b) and 55.01(d),2 which the circuit court denied.
Appellant then filed a Writ of Prohibition in this Court and the Missouri Supreme Court
challenging the circuit court’s denial of his requests for pre-assignment under Local Rule 66.3.1
and change of judge.3 Both writs were denied. In September 2017, Appellant requested Judge
Dowd recuse himself, claiming Judge Dowd was “too invested in the Condemnation Case to
1
All Local Rule references are to the St. Louis City Circuit Court’s Local Rules (2015), unless otherwise indicated.
Local Rule 66.3.1 provides:
In condemnation proceedings pursuant to general statutes where exceptions to the commissioners’
report are filed, the case shall be transferred to Division 1 for assignment to a general division in
the same manner as any other civil jury case.
The trial shall be handled as to each sub-file in the same manner in which other civil jury causes
are handled.
2
All Supreme Court Rule references are to the Missouri Supreme Court Rules (2015), unless otherwise indicated.
Appellant’s motion requesting a change of judge relied on Supreme Court Rule 55.01. However, Supreme Court
Rule 55.01 governs the pleadings required in a case, not a change of judge. See Supreme Court Rule 55.01 (“There
shall be a petition and an answer; and there shall be a reply to a counterclaim denominated as such; an answer to a
cross-claim, if the answer contains a cross-claim; a third-party petition, if a person who was not an original party is
summoned under the provisions of Rule 52.11; and there shall be a third-party answer, if a third-party petition is
served. A defense consisting of an affirmative avoidance to any matter alleged in a preceding pleading must be
pleaded. No other pleading shall be required except as ordered by the court.”). To the extent Appellant relies on
Supreme Court Rule 55.01 in moving for a change of judge, he is mistaken. Supreme Court Rule 51.05 governs
requests for a change of judge. See Supreme Court Rule 51.05.
3
See State ex rel. Osher v. Mullen, ED105463 and State ex rel. Osher v. Mullen, No. SC96500.
3
have the appearance of independent judgment in the Exception Case” and exhibited an “inherent
bias” favoring LCRA. Appellant’s request for recusal was also denied.
Trial
In May 2018, the exceptions filed by LCRA and Appellant proceeded to a jury trial,
which lasted seven days.
Appellant’s Evidence
Appellant testified on his own behalf. He testified he began renting the Property in 1993
and bought the Property in 1996 for $200,000. Appellant testified the Property’s highest and
best use was for redevelopment as a boutique hotel and the Property was worth $5.5 million on
the date of the taking. Appellant testified he asked for the Property to be registered in the
National Historic Registry in 2005 to “sav[e] the structure if anything should ever happen.”
Appellant testified the Property was valuable to himself, the City, and the neighborhood because
of its history. Appellant sought to admit photographic evidence of his experience in the
construction and hotel industry and nearby developments in the City of St. Louis during his
testimony, but the trial court excluded such evidence.
Appellant also testified regarding an earlier sale of the Property from JTO, LLC (“JTO”),
a company Appellant formed, to NorthSide Regeneration, LLC (“NSR”), a company owned by
Paul McKee, for $3.75 million in 2011 (the “2011 Sale”). Appellant testified he transferred title
to the Property to JTO. He testified NSR purchased the Property from JTO in an arms-length
transaction. He testified the sale was structured as a “sale-leaseback” or “triple net lease,” where
NSR would own the Property but lease the Property to another company called Wilco Leasing,
which was created by Appellant’s then-wife. Under the triple net lease, Wilco Leasing would
pay all insurance, taxes, repairs, and utility bills and NSR would collect $375,000 in rent
4
payments per year. Appellant testified he self-financed the transaction and NSR agreed to pay
him $3.75 million over five years at a 10% interest rate. Appellant would retain possession of
the Property. He testified he did not consider the $3.75 million purchase price inflated.
On cross-examination, Appellant testified he received no payment from NSR on the
closing date. He testified he knew McKee was going to receive “a lot” of tax credits for NSR’s
$3.75 million purchase of the Property.4 He testified he could not recall an email he sent to NSR
in November 2011 that stated NSR owed him a “[o]ne time principal payment of 50 percent of
tax credits in Q1 2012.” Appellant testified he received $591,000 from NSR in January 2012 but
denied the source of the $591,000 was tax credits. Appellant testified the Department of
Economic Development disqualified the tax credits it previously granted McKee in March 2013
and all payments from NSR to JTO stopped in March 2013. Appellant testified he received
$733,000 from NSR as of March 2013. Appellant agreed he and McKee thereafter “unwound”
the 2011 Sale and conveyed the Property back to Appellant. On re-direct examination, Appellant
testified he did not recall the Department of Economic Development disapproving of the owner-
financed, sale-leaseback structure of the transaction between JTO and NSR.
Appellant also sought to testify about a settlement he entered with AT&T Mobility
(“AT&T”), a company that rented a space for a cell tower on the Property’s roof, after the
Property was condemned. Appellant sought to testify he paid AT&T $65,000 to resolve any
claims arising from the termination of AT&T’s lease with Appellant due to the Property’s
4
Appellant, McKee, and various other witnesses testified that, in 2007, the General Assembly enacted the
“Distressed Areas Land Assemblage Tax Credit Act (“DALATC”). See § 99.1205 (2007). The DALATC provided
that developers who purchased land in an economically distressed area could apply to the Department of Economic
Development to gain access to tax credits, which would pay for “an amount equal to fifty percent of the acquisition
costs, and one hundred percent of the interest costs incurred for a period of five years after the acquisition of an
eligible parcel.” § 99.1205.3. The DALATC provided the funds generated from the use of the tax credit must be
used for redevelopment activities in the economically distressed area. § 99.1205.2(b)(a).
5
condemnation and Appellant owed AT&T nothing further. The circuit court disallowed this
testimony, stating “I think it is a matter that can be handled after the verdict in this trial.”
Appellant next called William Otto Spence, his appraiser, as a witness. Spence testified
he conducted a lengthy inspection of the Property four times but observed the Property on
several other occasions. Spence testified the fair market value of the Property at the time of the
taking was $4.93 million. Like Appellant, Spence testified the highest and best use of the
Property was for conversion into a “lifestyle or boutique hotel.” In valuing the Property, Spence
considered the 2011 Sale price of $3.75 million. Spence testified he met with McKee to discuss
the 2011 Sale. He testified McKee told him the sale was conducted at arms-length and
represented the market value of the Property. Spence testified the 2011 Sale was not a “sham
sale” and he considered the source of NSR’s funding from tax credits irrelevant to his valuation
of the Property. Spence testified he based his appraisal of the Property upon what was occurring
in the Property in 2016 before Appellant moved out. He explained his appraisal included some
photographs taken of the Property after the date of the taking because Appellant requested he
wait until Appellant moved out of the Property to take photographs. Spence also based his
valuation, in part, on the Property’s historic significance and its status in the National Historic
Registry.
Appellant also called McKee as a witness. McKee testified NSR purchased the Property
from JTO in 2011 for $3.75 million with the triple net lease structure Appellant described in his
earlier testimony. He testified he received tax credits from the 2011 Sale from the Department of
Economic Development, but they were later denied. McKee testified NSR “unwound” the
transaction with JTO after NSR paid JTO approximately $700,000. McKee testified the State
asked him and Appellant to unwind the transaction between NSR and JTO. On
6
cross-examination, McKee denied he would have been willing to overpay for the Property if he
got 50% of the sale price back in tax credits. McKee also testified NSR entered into other
transactions with Appellant to purchase other properties in the City of St. Louis. McKee testified
these other transactions involved a million-dollar purchase price, no money exchanging hands at
the closing, and a large payout of tax credits.
LCRA’s Evidence
LCRA called Laura Costello, the Director of Real Estate for the St. Louis Development
Corporation, as a witness. Costello testified she inspected the Property in September 2016. She
testified she saw chipped paint, nonfunctioning windows, and holes in the floor during her
inspection. Costello admitted her inspection took place after the date of the taking. LCRA
admitted photographs of Costello’s inspection of the Property into evidence. Costello testified
she never instructed McKee to unwind the transaction between NSR and JTO.
LCRA also called Kevin Schoenborn, an environmental company project manager, as a
witness. Schoenborn testified he inspected the Property in March 2017 after Appellant moved
out. He testified his inspection revealed damage around the skylights, chipped paint,
nonfunctioning windows, a spongy roof, and tuck pointing issues. He also testified he observed
the Property had poor structural integrity.
LCRA also called Tom Mueller as a witness. Mueller testified he previously owned the
Property and sold it to Appellant in 1996. Mueller testified he saw the inside of the Property
after Appellant moved out. He testified the Property had no chipped paint, non-functioning
windows, or water damage before he sold it to Appellant. Mueller testified the Property was not
in better condition than when he sold it to Appellant.
7
LCRA called John Neff, its appraiser, who testified the fair market value of the Property
at the time of the taking was $573,000 and the Property’s highest and best use was as a
warehouse. He testified he inspected the building in January and September 2016 and found it
was in fair to average condition. He agreed with Schoenborn the Property had poor structural
integrity. Neff testified the fact the Property belonged to the National Historic Register did not
factor into his appraisal. LCRA also called several expert witnesses who testified the Property’s
highest and best use was not for a hotel, as it had a poor location that experienced little traffic
and would cost between $200,000-400,000 per room to convert the Property into a hotel.
Lastly, LCRA called Sallie Hemenway, the Division Director at the Missouri Department
of Economic Development, as a witness to discuss the 2011 Sale and the sales of other properties
between NSR and Appellant. Hemenway testified the State initially issued tax credits to McKee
for his acquisition of the Property in the 2011 Sale. Hemenway testified the State rescinded the
tax credits previously granted for the 2011 Sale after discovering the improper owner-financed,
sale-leaseback structure of the transaction between JTO and NSR.
Jury Verdict and Homestead Allowance
The jury returned a verdict awarding Appellant $573,000, the value suggested by LCRA;
$244,589.59 less than the commissioners’ award. Following trial, Appellant asked the circuit
court to apply a homestead allowance under section 523.0395 to increase the jury’s verdict
because he alleged the Property was his primary residence. The parties waived an evidentiary
hearing on the homestead allowance issue and filed a Joint Statement of Facts containing a
stipulation of the evidence that would have been presented at a hearing. The Joint Statement of
5
All statutory references are to RSMo (2015), unless otherwise indicated.
8
Facts asked the circuit court to “determine the issues based upon the evidence, the evidence
adduced at trial, and the arguments of counsel.”
The parties stipulated Appellant would have testified as follows. He used the fourth floor
of the Property, which included a residential loft, as his primary residence since the summer of
2015. From 2005 until the summer of 2015, his primary residence was in Florida. His
residential loft in the Property was not in violation of any zoning laws. He did not believe he
needed a permit to live in the Property. He filed state income taxes in Missouri in 2015 and
2016: filed a city earnings tax in Missouri in 2015 and 2016; registered to vote in Missouri in
2015; obtained a Missouri non-driver’s license because he maintained a commercial driver’s
license in Florida; and listed the Property’s address on his health and car insurance.6 Appellant
did not own the Property when he moved into it in the summer of 2015 or when LCRA sent NSR
a sixty-day notice expressing its intent to acquire the Property by eminent domain in November
2015. He owned the Property only after NSR and JTO agreed to “unwind” the 2011 Sale and
grant title to Appellant. In the closing documents memorializing the “unwind” of the 2011 Sale,
Appellant listed his Florida address as his mailing address.
When Appellant moved to the Property in 2015, he did not abandon his Florida home or
certain aspects of his Florida residency. He kept his Florida driver’s license and renewed it in
November 2017. He listed his Florida address as his home address on his 2014 Federal Income
Tax Return, which was filed in September 2015 while he claimed to live in the Property. The
Property was zoned for industrial use and was not approved for residential use. The City of St.
Louis never issued an occupancy permit for anyone to reside at the Property. Appellant was
aware the City of St. Louis’ zoning laws prohibited him from living at the Property, but he
6
Appellant also produced these documents, and others, as exhibits and attached them to the Joint Statement of
Facts.
9
thought it was legal for him to do so because he was a security guard at the Property. However,
there is no “security guard” exception in the City of St. Louis’ Municipal Code. From July 2015
to January 2017, he repeatedly left town and spent more time in Florida than Missouri.
The parties also stipulated Costello would have testified she regularly drove by the
Property during the times Appellant claimed to reside there but saw no indication Appellant
occupied the Property. She inspected the Property in September 2016 and observed some
appliances on the fourth floor were not plugged in to any power source. The parties also
stipulated Jennifer Kaniecki, a Relocation Specialist with Development Resource Partners, LLC,
would have testified Appellant never provided her with any proof he was a full time resident at
the Property and, in her opinion, if Appellant ever did reside in the Property, he did so
purposefully to attempt to obtain a homestead allowance and/or other relocation benefits.
After considering the evidence presented by both parties, the circuit court denied
Appellant’s request for a homestead allowance, finding the Property was “not a dwelling within
the meaning of §523.039”; “[Appellant]’s testimony that the [Property] was his primary place of
residence [wa]s not credible”; and “the facts lead to the conclusion that the [Property] was not
his primary place of residence.”
Assessment of Costs
Following trial, LCRA also filed a Bill of Costs, which asked the circuit court to tax costs
incurred after the commissioners’ award was entered against Appellant. LCRA’s Bill of Costs
requested $21,207.13 be taxed against Appellant “pursuant to Missouri Supreme Court Rule
77.01.”7 Appellant opposed LCRA’s Bill of Costs, arguing Supreme Court Rule 77.01 did not
7
Supreme Court Rule 77.01 provides: “In civil actions, the party prevailing shall recover his costs against the other
party.”
10
apply in condemnation cases and Supreme Court Rule 86.098 controlled instead. Appellant
argued, under either Rule, LCRA failed to justify its request that costs be taxed against
Appellant. The circuit court ordered Appellant to pay costs in the amount of $21,207.13.
On July 18, 2018, the circuit court entered judgment on the verdict.
Appellant appeals.
Discussion
Point I: Assignment to a General Division After Filing Exceptions
Appellant’s first point argues the circuit court erred in failing to assign his case to a
general division once exceptions were filed. He argues Local Rule 66.3.1 mandates that, once
exceptions to the commissioners’ report are filed, the circuit court must transfer the case to
Division 1 for assignment to a general division. He argues the circuit court’s December 2015
Order specially assigning the case to Judge Dowd was issued before either party filed exceptions.
Therefore, he argues the circuit court’s December 2015 Order provided “no legitimate basis for
bypassing” Local Rule 66.3.1.
Standard of Review
On appeal, we defer to the circuit court’s construction of its local rules because “[t]he
court that enunciates a rule is the best judge of that rule.” James v. James, 853 S.W.2d 425, 430
(Mo. App. S.D. 1993) (internal citation omitted) (quoting Mid. Materials Co. v. Village Dev. Co.,
806 S.W.2d 477, 484 (Mo. App. S.D. 1991)). “[A] higher court is reluctant to interfere with a
8
Supreme Court Rule 86.09 provides:
The cost of the condemnation proceeding shall be paid by the condemner, up to and including the
filing and copying of the report of the commissioners; and the court, as to any costs made by
subsequent litigation, may make such order as in its discretion may be deemed just. The court
shall allow the commissioners a reasonable compensation for their services, which shall be taxed
as costs in the proceeding.
11
court’s construction of its own rule.” In re Transit Cas. Co., 900 S.W.2d 671, 674 (Mo. App.
W.D. 1995) (citing State ex rel. Logan v. Ellison, 267 Mo. 321, 184 S.W. 963, 964 (Mo. 1916)).
Analysis
Supreme Court Rule 50.01 authorizes circuit courts to adopt local rules to “govern[ ] the
administration of judicial business,” so long as they are not “inconsistent with the rules of [the
Supreme Court], the Constitution or statutory law in force.” State ex rel. Burns v. Gillis, 102
S.W.3d 66, 70 (Mo. App. W.D. 2003) (alterations in original) (citing Supreme Court Rule
50.01). The St. Louis City Circuit Court adopted Local Rule 66 to govern the administration of
judicial business in condemnation proceedings. Local Rule 66.1 provides condemnation cases
shall be initially assigned to the equity division. Local Rule 66.2 provides: “If exceptions are
filed, the clerk shall establish a sub-file for the particular parcel to which the exception relates . .
. and each sub-file shall remain assigned to the judge who entered the order of condemnation.”
Local Rule 66.3.1 then provides:
In condemnation proceedings pursuant to general statutes where exceptions to the
commissioners’ report are filed, the case shall be transferred to Division 1 for
assignment to a general division in the same manner as any other civil jury case.
The trial shall be handled as to each sub-file in the same manner in which other
civil jury causes are handled.
(emphasis added). The St. Louis City Circuit Court has also adopted Local Rule 6.2.1, which
states: “From time to time and in the presiding judge’s discretion, the presiding judge may assign
extraordinary cases requiring individual and continuing attention to general divisions for trial
setting, pretrial motions and trial.” Local Rule 6.2.1.
Here, the circuit court initially assigned the case to Judge Dowd in Division 2, the equity
division, when LCRA filed its condemnation petition. On December 30, 2015, the then-
presiding judge for the St. Louis City Circuit Court issued its order stating Appellant’s case was
12
“specially assigned to Division 2 for all further proceedings.” On April 4, 2016, Judge Dowd
entered the order of condemnation. On May 31, 2016, LCRA filed its exceptions, and on June
13, 2016, Appellant filed his exceptions. Upon the filing of exceptions, the circuit court did not
transfer the case to Division 1 for assignment to a general division. In December 2016, when
Appellant asked the circuit court to clarify the application of Local Rule 66.3.1 to his case, the
circuit court stated the “trial of the exceptions had been previously assigned to Judge David
Dowd on December 30, 2015.”
Appellant argues the circuit court violated Local Rule 66.3.1 when it failed to transfer the
case to Division 1 for assignment to a general division once exceptions were filed. We disagree.
The circuit court construed its Local Rules and determined the case did not need to be assigned
when exceptions were filed because of the December 2015 Order. We “defer[] to the trial court
with respect to its interpretation and application of its local rules relating to setting cases for
trial.” James, 853 S.W.2d at 430. Further, Appellant’s case was one part of a large, complicated
and extraordinary proceeding involving the acquisition of over 500 properties on an almost 100-
acre site in the City of St. Louis. It was within the authority of the then-presiding judge for the
City of St. Louis Circuit Court to specially assign Appellant’s case to Judge Dowd “for all
further proceedings” under the circumstances. See Local Rule 6.2.1.
Point I is denied.
Point II: Application for Change of Judge
Appellant’s second point argues the circuit court erred in denying his application for a
change of judge without cause.
13
Standard of Review
“The denial of a motion for change of judge without cause is an issue of law that the
appellate court reviews de novo.” Corozzo v. Wal-Mart Stores, Inc., 531 S.W.3d 566, 570 (Mo.
App. W.D. 2017) (citing Gordon ex rel. G.J.E. v. Epperly, 504 S.W.3d 836, 844 (Mo. App. W.D.
2016)).
Analysis
“A civil litigant has a ‘virtually unfettered right to disqualify a judge without cause on
one occasion.’ Thus, the presentation of a timely application for change of judge under
[Supreme Court] Rule 51.05 requires a prompt change of judge.” State ex rel. Stockman v.
Frawley, 470 S.W.3d 401, 404 (Mo. App. E.D. 2015) (citing State ex rel. Walters v.
Schaeperkoetter, 22 S.W.3d 740, 742 (Mo. App. E.D. 2000)). Under Supreme Court Rule 51.05,
an application for change of judge “must be filed within 60 days from service of process or 30
days from the designation of the trial judge, whichever time is longer.” Supreme Court Rule
51.05(b). When a party files an application for change of judge, the trial court must grant the
application and transfer the case if the application was timely filed and no other member of the
applicant’s “class” previously obtained a change of judge under Supreme Court Rule 51.05.
State ex rel. Manion v. Elliott, 305 S.W.3d 462, 464 (Mo. banc 2010). In condemnation cases
involving multiple defendants, as to which separate trials are held, each separate trial to
determine damages shall be treated as a separate case for purposes of change of judge.”
Supreme Court Rule 51.05(d).9
9
Here, both parties conceded during oral argument Appellant was the only defendant to request a trial to determine
damages and no other defendant requested a change of judge. Therefore, Supreme Court Rule 51.05(d) is not in
issue.
14
Appellant’s request for a change of judge was untimely. Judge Dowd was designated
trial judge on December 30, 2015, through the December 2015 Order. Appellant was served
with process on March 18, 2016. Therefore, Appellant must have filed his application for
change of judge by May 18, 2016, to avail himself of his right to disqualify Judge Dowd under
Supreme Court Rule 51.05. He failed to do so. Appellant argues his application for change of
judge was timely because it was filed “less than 30 days after the trial court made clear in its
final order that it was going to assume jurisdiction over this exceptions case in violation of Local
Rule 66.3.1” on January 9, 2017. However, the fact Appellant did not realize Judge Dowd was
the judge designated to his case until January 9, 2017, is irrelevant and does not alter the
deadlines stated in Supreme Court Rule 51.05(b). “The designation of the trial judge occurs
when the judicial transfer order is filed in the circuit court, not when the parties are notified of a
change in judge.” Corozzo, 531 S.W.3d at 570-71 (internal quotations and citations omitted).
Because Appellant failed to timely apply for a change of judge, the circuit court did not err in
denying his request.
Point II is denied.
Point III: Assessment of Costs
Appellant’s third point argues the circuit court erred in assessing $21,207.13 in costs
against him. He argues the circuit court erroneously relied on Supreme Court Rule 77.01 in
assessing costs, which provides, “[i]n civil actions, the party prevailing shall recover his costs
against the other party,” instead of Supreme Court Rule 86.09, which provides, in condemnation
proceedings, “the court, as to any costs made by subsequent litigation, may make such order as
in its discretion may be deemed just.” He contends the circuit court must have erroneously relied
on Supreme Court Rule 77.01 because LCRA’s Bill of Costs motion requested costs be assessed
15
against him “pursuant to Missouri Supreme Court Rule 77.01” and the trial court overruled his
objection that Supreme Court Rule 77.01 does not apply in a condemnation proceeding. He
further argues, even if the circuit court assessed costs against him under Supreme Court Rule
86.09, its award of costs was improper because LCRA had a duty to justify the award of costs
and failed to do so.
Standard of Review
A circuit court’s award of costs is a matter within its sound discretion, “and we will not
disturb the award absent a showing of an abuse of discretion.” Green v. Plaza in Clayton Condo.
Ass’n, 410 S.W.3d 272, 284 (Mo. App. E.D. 2013) (internal citations omitted). “A court abuses
its discretion when its action is so clearly against the logic of the circumstances and so arbitrary
and unreasonable as to shock one’s sense of justice and indicate a lack of careful consideration.”
Oliver v. Ford Motor Credit Co., LLC, 437 S.W.3d 352, 366 (Mo. App. W.D. 2014) (quoting
Kopp v. Home Furnishing Ctr., LLC, 210 S.W.3d 319, 329 (Mo. App. W.D. 2006)).
Analysis
Condemnation proceedings are governed by Supreme Court Rule 86. See State ex rel.
Washington Univ. Med. Ctr. Redevelopment Corp. v. Gaertner, 626 S.W.2d 373, 377 (Mo. banc
1982), abrogated on other grounds by Clay Cty. Realty Co. v. City of Gladstone, 254 S.W.3d 859
(Mo. banc 2008). “Other rules of civil procedure apply in condemnation proceedings only when
they are consistent with [Supreme Court] Rule 86.” Id. Supreme Court Rule 86.09 provides a
procedure for assessing costs in condemnation proceedings:
The cost of the condemnation proceeding shall be paid by the condemner, up to
and including the filing and copying of the report of the commissioners; and the
court, as to any costs made by subsequent litigation, may make such order as in its
discretion may be deemed just. The court shall allow the commissioners a
reasonable compensation for their services, which shall be taxed as costs in the
proceedings.
16
Supreme Court Rule 86.09.
Appellant argues the circuit court erroneously relied on Supreme Court Rule 77.01
instead of Supreme Court Rule 86.09 in assessing costs. We disagree. While LCRA’s Bill of
Costs requested costs be assessed against Appellant “pursuant to Missouri Supreme Court Rule
77.01,” the circuit court’s order makes no reference to Supreme Court Rule 77.01. “We presume
that the trial court knew and followed the law unless its judgment clearly indicates otherwise.”
In re Marriage of Davis, 378 S.W.3d 426, 432 n.4 (Mo. App. S.D. 2012) (citing Panettiere v.
Pannetiere, 945 S.W.2d 533, 540 (Mo. App. W.D. 1997)). Because the circuit court’s judgment
does not clearly indicate otherwise, we presume the circuit court assessed costs against Appellant
in a manner consistent with “the exercise of reasonable discretion” under Supreme Court Rule
86.09.
Appellant also argues that, even if the circuit court assessed costs against him under
Supreme Court Rule 86.09, LCRA had a duty to justify the circuit court’s award of costs and
failed to do so. However, Appellant cites no rule or case, and we can find no rule or case,
imposing that requirement. As Missouri courts have held, “All that we can read into . . .
[Supreme Court R]ule [86.09] is that it allows the trial court to assess costs in the trial of the
exceptions in the exercise of a reasonable discretion.” State ex rel. Farris v. Clifford, 543
S.W.2d 811, 813 (Mo. App. 1976). LCRA had no duty under Supreme Court Rule 86.09 to
justify the circuit court’s award of costs.
Point III is denied.
Point IV: Homestead Allowance
Appellant’s fourth point argues the circuit court erred in denying his request for a
homestead allowance.
17
Standard of Review
Decisions made by the circuit court without the aid of the jury are reviewed under
Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). “Under Murphy v. Carron, this Court
will affirm the judgment of the trial court ‘unless there is no substantial evidence to support it, it
is against the weight of the evidence, it erroneously declares the law, or it erroneously applies the
law.” Cent. Parking Sys. of Mo., LLC v. Tucker Parking Holdings, LLC, 519 S.W.3d 485, 492
(Mo. App. E.D. 2017) (footnote omitted) (quoting Lambrich v. Kay, 507 S.W.3d 66, 74 (Mo.
App. E.D. 2016)).
Analysis
Section 523.039 sets forth the methods for determining just compensation for condemned
property. See § 523.039; City of Cape Girardeau v. Elmwood Farms, L.P., 575 S.W.3d 280, 284
(Mo. App. E.D. 2019). “Specifically, Section 523.039(1) through (3) determines just
compensation for condemned property by whichever yields the highest compensation applicable
to the property.” Id. Under section 523.039(1) through (3), just compensation for condemned
property is either:
(1) An amount equivalent to the fair market value of such property;
(2) For condemnations that result in a homestead taking, an amount equivalent to the
fair market value of such property multiplied by one hundred twenty-five percent;
or
(3) For condemnations of property that result in any taking that prevents the owner
from utilizing property in substantially the same manner as it was currently being
utilized on the day of the taking and involving property owned within the same
family for fifty or more years, an amount equivalent to the sum of the fair market
value and heritage value . . . .
18
§ 523.039(1)-(3). Under section 523.039(2), a “homestead taking” is defined as “any taking of a
dwelling owned by the property owner and functioning as the owner’s primary place of
residence.” § 523.001.
Appellant argues the circuit court erred in denying his request for a homestead allowance
because it improperly found his testimony the Property was his primary place of residence “not
credible,” even though both parties stipulated to the evidence before the circuit court regarding
Appellant’s entitlement to such an allowance and no live testimony was presented to the circuit
court. Because the issue was tried upon stipulated facts, Appellant argues the circuit court “had
no basis for considering [his] credibility” and, therefore, the circuit court’s judgment denying his
request for a homestead allowance was erroneous.
Appellant’s argument is misguided. It is true “we will not give deference to a trial
judge’s determination regarding credibility of witnesses” when an issue is tried solely upon
stipulated facts. Thompson v. Chase Manhattan Mortg. Corp., 90 S.W.3d 194, 200 (Mo. App.
S.D. 2002) (citing Jarrell v. Dir. of Rev., 41 S.W.3d 42, 45 (Mo. App. S.D. 2001)). However,
the fact we will not defer to a circuit court’s determination of witness credibility when an issue is
tried solely upon stipulated facts does not mean the circuit court has no basis to weigh the
credibility of the evidence before it in reaching a decision. When confronted with conflicting
evidence, a circuit court must always weigh the credibility of that evidence in reaching its
decision. See Griffitts v. Old Republic Ins. Co., 550 S.W.3d 474, 477 n.3 (Mo. banc 2018)
(alterations in original) (quoting State v. Lytle, 715 S.W.2d 910, 915 (Mo. banc 1986))
(“[c]onflicts in the evidence [are] for the trial court to resolve.”).
In addition, the issue of Appellant’s entitlement to a homestead allowance was not tried
solely upon stipulated facts. The Joint Statement of Facts filed with the circuit court stated the
19
parties agreed to “waive the opportunity to present live testimony and ask the Court to determine
the issues based upon t[he stipulated] evidence, the evidence adduced at trial, and the arguments
of counsel.” (emphasis added). As LCRA noted, Appellant repeatedly testified regarding his
alleged residency in the Property at trial. On direct-examination, Appellant testified his primary
residence was on the fourth floor of the Property beginning in the summer of 2015. He testified
he filed state income taxes in Missouri in 2015 and 2016: filed a city earnings tax in Missouri in
2015 and 2016; registered to vote in Missouri in 2015; and obtained a Missouri non-driver’s
license because he maintained a commercial driver’s license in Florida. On cross-examination,
Appellant testified he never asked for an occupancy permit to live in the Property.
The circuit court “is free to believe or disbelieve all, part, or none of the testimony of any
witness” testifying at trial. Tolliver v. 5 G Homes, LLC, 563 S.W.3d 827, 834 (Mo. App. E.D.
2018) (citing Watson v. Mense, 298 S.W.3d 521, 525-26 (Mo. banc 2009)). We defer to the trial
court’s assessment of credibility of witnesses who testified at trial. State ex rel. Family Support
Div. v. Steak’m Take’m LLC, 524 S.W.3d 584, 589 (Mo. App. W.D. 2017) (citing Roper Elec.
Co. v. Quality Castings, Inc., 60 S.W.3d 708, 710 (Mo. App. S.D. 2001)). This deference is
appropriate because the trial court “is in a better position not only to judge the credibility of
witnesses and the persons directly, but also their sincerity and character and other trial
intangibles which may not be completely revealed by the record.” Tolliver, 563 S.W.3d at 834
(quoting Essex Contracting Inc. v. Jefferson Cty., 277 S.W.3d 647, 653 (Mo. banc 2009)). Thus,
the circuit court was free to disbelieve Appellant’s trial testimony he used the Property as his
primary residence. The circuit court properly considered the credibility of Appellant’s trial
testimony in reaching its judgment. We must defer to its determination. Steak’m Take’m LLC,
524 S.W.3d at 589.
20
Further, the circuit court’s judgment denying Appellant’s request for a homestead
allowance is supported by substantial evidence derived from the parties’ Joint Statement of
Facts. In the Joint Statement of Facts, the parties stipulated Appellant would testify he began
using the fourth floor of the Property as his primary residence in the summer of 2015. Appellant
obtained a Missouri non-driver’s license; paid a city earnings tax; registered to vote in Missouri
in 2015; listed the Property as his address for his health and car insurance; and filed state income
taxes in Missouri in 2015 and 2016. Appellant did not own the Property when he allegedly
moved into it in the summer of 2015 or when LCRA sent notice it intended to acquire the
Property by eminent domain in November 2015.
Appellant never abandoned his home in Florida; maintained his Florida driver’s license,
which he renewed in November 2017; and listed Florida as his home address on his 2014 Federal
Tax Income Return, which was filed in September 2015 when he claimed to be using the
Property as his primary residence. The Property was zoned for industrial use and not approved
for residential use, the City of St. Louis never issued an occupancy permit for Appellant to reside
at the Property, and Appellant was aware the City of St. Louis’ zoning laws prohibited him from
living at the Property. From July 2015 until January 2017, Appellant repeatedly left town and
spent more time in Florida than Missouri. Inspections of the Property revealed some appliances
on the Property were not functioning during the time in which Appellant claimed to be living in
the Property.
The circuit court’s judgment states “the facts lead to the conclusion that the building was
not [Appellant]’s primary place of residence.” “[W]here facts essential to an element of a case
are derived from non-live sources and are in conflict, appellate courts give deference to the trial
court’s conclusions about those facts.” Thompson, 90 S.W.3d at 200 (citing Jarrell, 41 S.W.3d
21
at 46[9]). Because we defer to the circuit court’s conclusions about the facts alleged in the Joint
Statement of Facts, and we defer to the circuit court’s determinations regarding credibility of
Appellant’s trial testimony, we find the circuit court’s judgment is supported by substantial
evidence and is not against the weight of the evidence.
Point IV is denied.
Point V: Exclusion of Evidence of Settlement Amount
Appellant’s fifth point argues the circuit court abused its discretion when it excluded
evidence of a settlement agreement between him and AT&T, a company that rented a space for a
cell tower on the Property’s roof from Appellant before the Property’s condemnation. Under the
settlement agreement, Appellant paid AT&T $65,000 to resolve any claims arising from the
termination of AT&T’s lease with Appellant because of the Property’s condemnation. Appellant
argues the circuit court improperly excluded this evidence because it erroneously believed
section 523.053 required the settlement amount be determined at a separate distribution after the
jury returned their verdict.
Standard of Review
“We review a trial court’s ruling on the admission or exclusion of evidence for abuse of
discretion.” State v. Ecford, 198 S.W.3d 156, 158 (Mo. App. E.D. 2006) (citing State v. Nelson,
178 S.W.3d 638, 642 (Mo. App. E.D. 2005)). “In condemnation cases, trial court errors in the
admission or exclusion of evidence will not typically result in our reversing a decision without a
showing of substantial or glaring injustice.” Glaize Creek Sewer Dist. of Jefferson Cty. v.
Gorham, 335 S.W.3d 590, 593 (Mo. App. E.D. 2011) (internal citations omitted).
22
Analysis
A tenant may be entitled to a portion of the proceeds of the commissioners’ award if he
or she establishes a “bonus value” of the unexpired term of the lease exists. City of Riverside v.
Progressive Inv. Club of Kan. City, 45 S.W.3d 905, 911 (Mo. App. W.D. 2001) (internal
citations omitted). However, if a condemned property is subject to a leasehold interest, a single
award of damages is made without regard to the lessee’s claim. Santa Fe Trail Neighborhood
Redevelopment Corp. v. W.F. Coehn & Co., 154 S.W.3d 432, 442 (Mo. App. W.D. 2005) (citing
State ex rel. Mo. Highway & Transp. Comm’n v. Rantz, 43 S.W.3d 436, 440 (Mo. App. S.D.
2001)). Once a single award of damages is made, section 523.053 governs the distribution of
condemnation awards among defendants.
Section 523.053(1) provides “those defendants claiming a determinable interest in the
proceeds of [the commissioners’] award may file with the court an agreement setting out the
manner and percentages in which said award is to be divided among them.” § 523.053(1). But
section 523.053(4) specifically provides “[a]ny evidence relating to the terms of said
determination of interest shall not be admissible as evidence before the jury on the trial of . . .
exceptions.” § 523.053(4) (emphasis added). At trial, the circuit court declined to admit
evidence regarding the settlement amount Appellant paid AT&T, stating “I think it is a matter
that can be handled after the verdict in this trial.” Because section 523.053(4) mandates
evidence of other interests in the proceeds of the award be excluded in a jury trial on exceptions,
we cannot find the circuit court abused its discretion.
Point V is denied.
23
Point VI: Exclusion of Photographs and Criticism in Front of the Jury
Appellant’s sixth point argues the circuit court abused its discretion when it excluded
photographic evidence of Appellant’s experience in the construction and hotel industry and
nearby developments in the City of St. Louis. He claims the photographs’ exclusion prejudiced
his ability to present his case in an effective manner. Appellant also complains the circuit court
“compounded its error by criticizing [him] in front of the jury and directing [his] counsel ‘to
move forward’ on these matters.”
Standard of Review
“We review a trial court’s ruling on the admission or exclusion of evidence for abuse of
discretion.” Ecford, 198 S.W.3d at 158 (citing Nelson, 178 S.W.3d at 642). “In condemnation
cases, trial court errors in the admission or exclusion of evidence will not typically result in our
reversing a decision without a showing of substantial or glaring injustice.” Gorham, 335 S.W.3d
at 593 (internal citations omitted).
Supreme Court Rule 84.04 and Preservation of Error
Initially, we note Appellant’s sixth point violates Supreme Court Rule 84.04(d).
Appellant’s sixth point argues the circuit court erred in three distinct ways: (1) by excluding
photographic evidence relating to his experience in the construction and hotel industry, (2) by
excluding photographic evidence relating to recent developments in the City of St. Louis; and (3)
by criticizing him in front of the jury for testifying in too much detail.10 “A single point relied on
that groups multiple, disparate claims is multifarious, does not comply with [Supreme Court]
10
The argument portion of Appellant’s brief also challenges the circuit court’s exclusion of a briefcase containing
Buster Brown memorabilia from evidence. However, the circuit court’s ruling excluding the briefcase containing
Buster Brown memorabilia from evidence is not challenged in Appellant’s sixth point relied on. Issues developed
for the first time in the argument section that are different from those raised in the point relied on preserve nothing
on appeal. See State v. Scott, 531 S.W.3d 639, 641 n.2 (Mo. App. S.D. 2017) and State v. Morrow, 541 S.W.2d 738,
740 (Mo. App. 1976). Therefore, we will not address whether the circuit court abused its discretion in excluding the
briefcase containing Buster Brown memorabilia.
24
Rule 84.04, and generally preserves nothing for review.” Simmons v. McCulloch, 501 S.W.3d
14, 16 (Mo. App. E.D. 2016) (internal quotations and citations omitted). However, “[a]s a matter
of policy, the court prefers to decide cases on their merits whenever possible.” Comp & Soft,
Inc. v. AT&T Corp., 252 S.W.3d 189, 194 (Mo. App. E.D. 2008). Because the deficiencies in
Appellant’s point relied on do not impede our ability to discern his arguments or our disposition
on the merits, we review his sixth point ex gratia. O’Gorman & Sandroni, P.C. v. Dodson, 478
S.W.3d 539, 543 n.1 (Mo. App. E.D. 2015).
We further note Appellant has waived his claimed error that the circuit court criticized
him in front of the jury because he failed to object to any of the circuit court’s comments of
which he now complains. “To preserve a claim of error directed to remarks of a trial judge, an
objection must be made when they occur.” State v. Massey, 990 S.W.2d 201, 205 (Mo. App.
S.D. 1999) (internal quotations and citations omitted). When a party fails to object to a trial
judge’s remarks, his or her claim of error is waived “unless the conduct was erroneous and
amounted to conduct that affected the defendant’s substantial rights so as to result in manifest
injustice or miscarriage of justice.” Id. Therefore, we review Appellant’s claim of alleged error
regarding the circuit court’s alleged criticisms only for plain error.
Analysis
Exclusion of Photographic Evidence
Appellant summarily states “the trial court abused its discretion by improperly
prejudicing [him] in his ability to use photographs to present his case in an effective manner” and
lists several instances where the circuit court sustained objections to various photographs relating
to his experience in the construction and hotel industries and nearby developments in the City of
St. Louis. However, Appellant failed to explain why such photographs were relevant or
25
necessary to presenting his case in an effective manner. The sole issue before the jury in the trial
of exceptions was the value of the Property; that is, the just compensation Appellant was entitled
to for its taking or its “fair market value.” “The fair market value of land is what a reasonable
buyer would give who was willing but did not have to purchase, and what a seller would take
who was willing but did not have to sell.” St. Louis Cty. v. River Bend Estates Homeowners’
Ass’n, 408 S.W.3d 116, 135 (Mo. banc 2013) (citing City of St. Louis v. Union Quarry, 394
S.W.2d 300, 305 (Mo. 1965)).
Appellant has failed to show how photographs of his personal experience in the
construction and hotel industries and photographs of nearby developments in the City of St.
Louis were relevant to helping the jury determine what a reasonable buyer would pay for the
Property and what a reasonable seller would accept in a sale of the Property. The identity,
knowledge, and experience of a landowner is irrelevant to a determination of just compensation.
Photographs of nearby properties not being offered as comparable sales are similarly irrelevant.
The circuit court’s decision to exclude irrelevant evidence is not an abuse of discretion. Bella v.
Turner, 30 S.W.3d 892, 897 (Mo. App. S.D. 2000). Even if these photographs were relevant,
Appellant was allowed to testify at length about his experience in the construction and hotel
industries and other photographs portraying nearby properties were admitted into evidence.
Therefore, the photographs in question were cumulative at best and their exclusion was within
the discretion of the trial court. See State, ex rel. Mo. Highway & Transp. Comm’n v. Conley
Devel. Co., 628 S.W.2d 683 (Mo. App. E.D. 1982).
Alleged Criticisms by the Circuit Court
Appellant also summarily states “[t]he trial court compounded the prejudicial effect of
excluding photographic evidence when it criticized [him] in front of the jury.” Appellant argues
26
the trial court’s criticisms of him included interrupting Appellant’s testimony to caution that he
did not need so many details and instructing his counsel to “help move [the trial] forward.”
However, Appellant fails to explain how the circuit court’s remarks were erroneous. “There is
no error if the circuit court does not express an opinion regarding the nature, content, or
truthfulness of evidence.” State v. Jackson, 386 S.W.3d 810, 818 (Mo. App. S.D. 2012) (quoting
State v. Webber, 982 S.W.2d 317, 321 (Mo. App. S.D. 1998)). We find no error, plain or
otherwise, in the conduct of the circuit court. The circuit court’s comments asked Appellant to
refrain from giving too many details in his testimony “to move things along.” These comments
expressed no opinion about the nature, content, or truthfulness of Appellant’s testimony. See id.
Appellant has failed to demonstrate the circuit court’s remarks impacted so substantially upon
his rights that manifest injustice or a miscarriage of justice would result if left uncorrected.
Point VI is denied.
Point VII: Admission of LCRA’s Photographs of the Property
Appellant’s seventh point argues the circuit court abused its discretion when it admitted
photographs offered by LCRA depicting the Property after the date of the taking. He argues
these photographs “confused the jury over whether [they] could consider the condition of the
building after [Appellant] moved out.”
Supreme Court Rule 84.04
Appellant’s seventh point challenges the admission of “LCRA’s photographs” without
specifically identifying the exhibits he contends were erroneously admitted. His failure to do so
violates Supreme Court Rule 84.04(d)(1)(C), which provides each point relied on shall “explain
in a summary fashion why, in the context of the case, th[e] legal reasons support the claim of
reversible error,” and preserves nothing for review. Supreme Court Rule 84.04(d)(1)(C)
27
(emphasis added); see also Herd v. Herd, 537 S.W.3d 414, 418 (Mo. App. S.D. 2018) (holding
that, where an appellant’s point relied on fails to identify the specific trial testimony or exhibits
supporting his or her claim, nothing is preserved for review). The argument portion of
Appellant’s brief, however, challenges the admission of Exhibits 13, 19, 20, 34, and 338.
Because we prefer to review deficient points on their merits so long as the deficiencies do not
impede impartial review, we review Appellant’s seventh point ex gratia. Stevens v. Cato, 549
S.W.3d 479, 483 (Mo. App. S.D. 2017).
Standard of Review
“The admission of photographs lies within the sound discretion of the trial judge and will
not be disturbed on appeal unless an abuse of discretion is shown.” Lockwood v. Jackson Cty.,
Mo., 951 S.W.2d 354, 358 (Mo. App. W.D. 1997) (citing Mo. Highway & Transp. Comm’n v.
Rockhill Dev. Corp., 865 S.W.2d 765, 770 (Mo. App. W.D. 1993)). “In condemnation cases,
trial court errors in the admission or exclusion of evidence will not typically result in our
reversing a decision without a showing of substantial or glaring injustice.” Gorham, 335 S.W.3d
at 593 (internal citations omitted).
Analysis
“A photograph will not be rendered inadmissible by the fact that it was taken before or
after an event or before or after changes occurred as long as the extent of the changes is
explained.” Rockhill Dev. Corp., 865 S.W.2d at 770 (citing State ex rel. Mo. Highway & Transp.
Comm’n v. Vitt, 785 S.W.2d 708, 712 (Mo. App. E.D. 1990)). Testimony that the photograph
did not depict the property as of the date of the taking adequately informs the jury the Property
changed after the taking. See State ex rel. Mo. Highway & Transp. Comm’n v. Meramec Valley
Elevator, Inc., 782 S.W.2d 642, 645 (Mo. App. E.D. 1989).
28
The record reveals LCRA introduced Exhibits 13, 19, 20, 34, and 338 and elicited
testimony that each of the photographs depicted the Property either after or near the date of the
taking. Shortly after LCRA admitted Exhibit 13 and before LCRA admitted Exhibit 34, Mueller
testified the photographs depicted the Property after Appellant moved out, but when he viewed
the Property he “had no idea that [Appellant] had moved out” and “thought [Appellant] had just
removed everything that was inside.” Before admitting Exhibit 19, Schoenborn testified the
photograph clearly and accurately depicted the Property’s condition after Appellant moved out.
Before admitting Exhibit 20, Schoenborn testified the photograph clearly and accurately depicted
the way the Property looked when he inspected the building in March 2017, which was after the
date of the taking. And Exhibit 338 was admitted after Appellant testified there were “places in
the [Property] that looked like” the photograph in July 2016, which was near or shortly after the
date the Property was taken.11 This testimony at trial adequately informed the jury the Property
changed after the taking. Further, as LCRA notes, Appellant also offered photographs taken
after the taking on May 31, 2017, into evidence during trial, accompanied by a witness’
explanation that the photographs were taken after the date of the taking. Having done so, he is in
no position to object to the admission of LCRA’s photographs taken after the taking. State ex
rel. State Highway Comm’n v. Howard, 315 S.W.2d 786, 791 (Mo. 1958).
Point VII is denied.
11
The Property was taken July 7, 2016.
29
Point VIII: Admission of Evidence Regarding an Alleged Fraudulent Tax Credit Scheme12
Appellant’s last point argues the circuit court erred in allowing LCRA to cross-examine
McKee regarding an alleged fraudulent tax credit scheme used to acquire the Property and other
properties and call Hemenway as a witness to give opinion testimony regarding the same.
Appellant argues evidence relating to an alleged fraudulent tax credit scheme was irrelevant and
the circuit court erroneously allowed “a false issue to be injected in the trial.”
Standard of Review
“We review a trial court’s ruling on the admission or exclusion of evidence for abuse of
discretion.” Ecford, 198 S.W.3d at 158 (citing Nelson, 178 S.W.3d at 642). “In condemnation
cases, trial court errors in the admission or exclusion of evidence will not typically result in our
reversing a decision without a showing of substantial or glaring injustice.” Gorham, 335 S.W.3d
at 593 (internal citations omitted).
12
LCRA argues Appellant’s eighth point relied on fails to comply with Supreme Court Rule 84.04(d) by grouping
together numerous, unrelated incidents of alleged error into a single point relied on. Although Appellant’s eighth
point argues the circuit court erred in allowing LCRA to cross-examine McKee and call Hemenway as a witness, we
find Appellant’s eighth point does not run afoul of Supreme Court Rule 84.04(d) because his challenges to both
witnesses revolve around a central issue: McKee’s alleged involvement in a fraudulent tax credit scheme used to
acquire the Property and other related properties. Therefore, his eighth point is not waived for failure to comply
with Supreme Court Rule 84.04(d).
LCRA also argues Appellant failed to preserve his claim of error regarding the cross-examination of McKee because
this claim of error was not included in his motion for new trial. Although Appellant did not use the term “cross-
examination” in his motion for new trial, we find he has sufficiently preserved his claim of error. Our rules for
preservation of error are applied to enable both the trial court and the appellate court “to define the precise claim
made by the defendant,” not “to enable the court to avoid the task of review, nor to make preservation of error
difficult for the appellant.” State v. Amick, 462 S.W.3d 413, 415 (Mo. banc 2015) (quoting State v. Pointer, 887
S.W.2d 652, 654 (Mo. App. W.D. 1994)). Appellant’s motion for new trial alleged “[t]he [circuit c]ourt erred in
allowing the jury trial to become a referendum about McKee and the alleged fraud committed against the state by
[NSR]. . . . Th[e] [circuit c]ourt allowed, over objection and through plain error, evidence both hearsay and
otherwise, that was irrelevant to the valuation [of] the subject property.” This allegation sufficiently preserved his
argument on appeal that the circuit court abused its discretion in permitting LCRA to cross-examine McKee about
the alleged fraudulent tax scheme used to purchase the Property and other related properties.
30
Analysis
Cross-Examination of McKee
Appellant argues he did not “open the door to a wide-ranging attack on McKee’s use of
tax credits for the [Property]” by calling McKee as a witness. We disagree. “A party who has
introduced evidence concerning a certain fact may not on appeal complain that his opponent was
allowed to introduce related evidence, in rebuttal or explanation.” Eckerd v. Country Mut. Ins.
Co., 289 S.W.3d 738, 744 (Mo. App. E.D. 2009) (footnote omitted) (quoting Bowls v.
Scarborough, 950 S.W.2d 691, 702 (Mo. App. W.D. 1997)). On direct-examination, McKee
testified at length about the 2011 Sale. He testified about the promissory notes he signed in
connection with the 2011 Sale; the price he paid for the Property and whether it was inflated; the
structure of the triple net lease; the owner-financed, sale-leaseback structure of the transaction;
the fact the State issued and then denied tax credits associated with the transaction; and the
“unwinding” of the 2011 Sale. Appellant concedes in his brief “McKee[‘s] testimony about the
2011 [S]ale to NSR and the later unwind transaction was relevant background for the valuation
opinion given by [Appellant]’s . . . appraiser, William Otto Spence.” Appellant cannot now
complain LCRA was allowed to cross-examine McKee on the relevant issues he raised in his
direct-examination of McKee. See id.
Appellant also contends evidence related to whether McKee, through NSR, and
Appellant defrauded the State in the purchase of other properties is “irrelevant.” This argument
is also without merit. “Evidence is relevant if it tends to prove or disprove a fact in issue or
corroborates other evidence in the case.” Burrows v. Union Pac. R. Co., 218 S.W.3d 527, 534
(Mo. App. E.D. 2007) (citing Uxa ex rel. Uxa v. Marconi, 128 S.W.3d 121, 130 (Mo. App. E.D.
2003)). “The trial court has substantial discretion in ruling on the admissibility of evidence.”
31
Urbach v. Okonite Co., 514 S.W.3d 653, 659 (Mo. App. E.D. 2017) (citing Danneman v. Pickett,
819 S.W.2d 770, 772 (Mo. App. E.D. 1991)). “The admissibility of evidence in [condemnation
cases] depends on whether it tends to help the jury in resolving the issue of value and damages.”
State ex rel. Mo. Highway & Transp. Comm’n v. Edelen, 872 S.W.2d 551, 555 (Mo. App. E.D.
1994) (citing State ex rel. State Hwy. Comm’n v. Texaco, Inc., 502 S.W.2d 284, 288 (Mo. 1973)).
The evidence in question helped shed light on whether the 2011 Sale of the Property for
$3.75 million represented an accurate valuation of the Property. The evidence demonstrated a
pattern of activity that is corroborative of LCRA’s position that the 2011 Sale of the Property did
not represent an accurate valuation of the Property because the sales of the other properties: (1)
were structured similarly to the 2011 Sale; (2) were between NSR/McKee and Appellant; and (3)
occurred before or close in time to the 2011 Sale. See K.C. Roofing Ctr. v. On Top Roofing, Inc.,
807 S.W.2d 545, 550 (Mo. App. W.D. 1991). The circuit court did not abuse its discretion in
allowing cross-examination about McKee’s involvement with Appellant in purchasing other
properties.
Hemenway’s Testimony
Appellant maintains the circuit court abused its discretion in allowing Hemenway to
testify about her opinions regarding an alleged fraudulent tax credit scheme McKee and
Appellant used to purchase and sell the Property and other related properties because she was not
designated as an expert witness. However, the record before us does not show Hemenway gave
opinion testimony. A lay witness “may testify about facts within his or her personal
knowledge.” Urbach, 514 S.W.3d at 660. Here, Hemenway testified to facts she knew about
McKee‘s and Appellant’s alleged tax credit scheme to facilitate the purchase of the Property and
other related properties through first-hand knowledge she acquired as the Division Director at the
32
Missouri Department of Economic Development. Hemenway testified tax credits were initially
issued to McKee for half of the $3.75 million used to purchase the Property. Hemenway testified
the owner-financed, sale-leaseback structure of the transaction was improper. Hemenway
testified the State denied tax credits for the sale of one of the other properties and rescinded the
tax credits given to McKee for the 2011 Sale. Because none of Hemenway’s testimony
expressed an “opinion,” there was no need to designate her as an “expert” for her testimony to be
admissible. And, as explained above, Hemenway’s testimony regarding the alleged fraudulent
tax credit scheme to purchase the Property and other properties was relevant to determine
whether the 2011 Sale of the Property for $3.75 million represented an accurate valuation of the
Property. Accordingly, the circuit court did not abuse its discretion in allowing Hemenway’s
testimony about an alleged fraudulent tax credit scheme to purchase the Property.
Point VIII is denied.
Conclusion
The circuit court’s judgment is affirmed.
_______________________________
Philip M. Hess, Presiding Judge
Kurt S. Odenwald, J. and
Lisa P. Page, J. concur.
33