City of Great Falls v. Temple Baptist Church, Inc.

No. 92-626
IN THE SUPREME COURT OF THE STATE OF MONTANA

CITY OF GREAT FALLS, MONTANA,
a municipal corporation,
-

Plaintiff and Respondent,
v.
TEMPLE BAPTIST CHURCH, INC., and
CASCADE COUNTY, and NORWEST BANK
OF GREAT FALLS,
Defendants and Appellants.

APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable John M. McCarvel, Judge presiding.

COUNSEL OF RECORD:
For Appellants:
Patrick F. Flaherty, Attorney at Law,
Great Falls, Montana
For Respondent:
David V. Gliko, City Attorney,
Great Falls, Montana

Submitted on Briefs: May 20, 1993
Decided: September 14, 1993
Filed:
Justice William E. Hunt, Sr., delivered the opinion of the Court.
Appellant Temple Baptist Church, Inc., appeals from the
judgment of the Eighth Judicial District Court, Cascade County,
granting the Church an award of $17,000 for condemnation by eminent
domain.
We reverse and remand for a new trial.
Appellant presents six issues on appeal. Because of our
holding, we need only discuss the following three issues:
1. Did the District Court err when it limited the testimony
of defendants' expert?
2. Did the District Court err when it limited the testimony
of the owner of the property in question?
3. Did the District Court err in refusing to instruct the
jury on the stipulated and agreed upon facts of the case?
On April 16, 1991, the Great Falls City Commission adopted
Ordinance No. 2600 which confirmed the public necessity for
condemnation by eminent domain upon 0.31 acres of land belonging to
the Church. The purpose of the taking was for development,
construction, and operation of a sewer main and lift station.
On April 26, 1991, the City of Great Falls filed this
condemnation action. The City also served a summons upon the
Church to appear before the District Court on June 26, 1991, in
order to obtain a preliminary condemnation order enabling it to
enter the Church property to construct, maintain, and operate the
sewer main and lift station. On August 3, 1991, the parties agreed
to the Preliminary Condemnation Order. The compensation rights of

2
the Church were reserved for a subsequent proceeding in which the
financial award would be determined. In an order dated August 8,
1991, the District Court granted the City the right to enter the
Church property and the reservation of the compensation
determination for a future date. It was also stipulated that the
City Zoning Ordinance requires 272 parking spaces.
Although the City offered to pay $25,000 for the property, the
Church, relying on the appraisal of its expert, determined that
$58,100 would be a reasonable settlement. After a jury trial, the
Church was awarded damages of $14,500 for the parcei taken and
$2,500 for damages to the remainder, for a total award of $17,000.
I.
Did the District Court err when it limited the testimony of
defendants' expert?
The Church contends that their expert should have been allowed
to testify about a "cost to cure" method which would require the
City to compensate for additional property purchased by the Church.
The Church does not present any statutory authority or case law to
support this method. We stated in Meagher County Water District v.
Walter (l976), 169 Mont. 358, 362-63, 547 P.2d 850, 853, that "just
compensation for a public taking of private land is to be computed
as: fair market value of land taken plus (value of remainder
before taking minus value of remainder after taking)." The "cost
to cure" method is an alternative method of compensation. The
District Court was under no obligation to allow discussion or
testimony of such a method.
 ~egarding the expert's testimony on comparable sales, the
~istrictCourt considered all of the sales presented and struck the
ones it felt were not similar or comparable to the Church property.
The District Court has discretion in admitting or excluding
evidence of comparable sales, and its decision will not be reversed
unless there is a manifest abuse of discretion. State v.
Schreckendgust (1976), 170 Mont. 161, 164, 551 P.2d 1019, 1021. We
hold that there was no manifest abuse of discretion on the part of
the District Court.
11.
Did the District Court err when it limited the testimony of
the owner of the property in question?
Again, we emphasize that the valuation date of the property is
the date the summons was served, April 29, 1991. Speculative and
conjectural possibilities are not to be taken into consideration.
Antonioli, 401 P.2d at 567. The history of the Church from its
beginnings until the present, and its plans for the future, are
irrelevant in determining the actual damage as of the valuation
date. The District Court did not err in limiting the testimony of
the property owner.
111.
Did the District Court err in refusing to instruct the jury on
the stipulated and agreed upon facts of the case?
In this case, the Church was entitled to damages for the fair
market value of that property which was taken by the City's
condemnation. However, it was also entitled to damages for the
depreciation to its remaining property which resulted from the
taking. Section 70-30-302, MCA.
The property taken was the Church's parking lot. In order to
evaluate the depreciation to the Church's remaining property, the
jury had to know what its parking requirements were and whether
those requirements could be satisfied on the remaining property.
Prior to trial, the parties entered into the following
stipulation: "Parking requirements under City's zoning ordinance
for the subject property are 272 spaces."
Based upon its reliance on that stipulation, the Church
offered proof that it would have to either purchase additional
property at a cost of about $50,000, or make alterations to its
remaining property at a cost of $26,350, in order to satisfy the
City's parking requirement and receive a certificate of occupancy
after completing the building improvements that were then under
way.
At trial the City called as a witness, John Lamb, its parking
and zoning supervisor, and Mike Rattray, its assistant community
development director, who testified, without foundation, that it
was conceivable that fewer than 272 parking spaces would be
required, and that even if 272 were required, it was possible that
a variance from that requirement would be granted. This testimony
was highly speculative and should not have been allowed. However,
since it was, the Church was entitled to have the prior stipulation
read to the jury so that in evaluating the damages to the Church's
remaining property there would be no question about what the Church
would be required to do in order to occupy that property.
In fact, the Church offered its Instruction No. 12 which set
forth the stipulation and the City did not object to that
instruction. The court simply declined to give it. Without such
an instruction, the City Attorney was able to argue in his closing
argument:
Another consideration to be taken in here, I
believe, is the fact that the actual parking space needed
by the Church may be modified if the information and
application and plans are ever submitted to the City so
tinat an actual judgment can be made.
Secondly, the variance process has not been
utilized. And I would remind that the City has not had
any concern with the parking area in this church for
apparently as long as it has been in operation.
Apparently uncertain about what the future parking
requirements would be, the jury awarded damages for the
depreciation of the Church's remaining property in the amount of
$2500. This was one-tenth of the minimum amount which the
testimony established would be necessary to comply with what the
City had previously agreed would be the Church's parking
requirements. The Church had a right to rely on the stipulation
when preparing for trial and putting on proof of its damages.
We hold that the District Court erred by not instructing the
jury that the City had agreed that 272 parking spaces were required
and that failure to do so prejudiced the defendant.
 We reverse the jury verdict and remand for a new trial based
on the District Court's failure to instruct the jury that the City
had agreed that 272 parking spaces were required.

We concur:
 September 14, 1993

CERTIFICATE OF SERVICE

I hereby certify that the following order was sent by United States mail, prepaid, to thc following
named:

Patrick F. Flaherty
Attorney at Law
625 Central Ave. West, #I01
Great Falls, MT 59404

David V. Gliko
City Attorney
P.O. Box 5021
Great Falls, MT 59403

ED SMITH
CLERK OF THE SUPREME COURT
STA'Sf! OF MONTANA