Miller v. GLACIER DEVELOPMENT CO., LLC

Luckert, J.,

concurring: I agree with the outcome of this case and Justice Rosen’s analysis on all issues except the question of the admissibility of the prices Glacier paid to purchase the two tracts of property in 1995 and 1996. I would find this evidence admissible.

As Justice Rosen notes, “any competent evidence bearing upon market value generally is admissible.” City of Wichita v. Eisenring, 269 Kan. 767, 773, 7 P.3d 1248 (2000). Stated another way, any evidence relevant to market value on the date of the taking is admissible.

We recently discussed the rules relating to relevance in another eminent domain proceeding, stating:

“The City relies on precedent establishing the district court as a gatekeeper for the admission of comparable sales evidence, investing the district court with discretion to look at ‘the factors of whether the sale was bona fide, voluntary, not too remote in point of time, and if the conditions of the property and surrounding area were sufficiently similar to those on the date of the taking [of the condemned property].’ Consultation, Inc. v. City of Lawrence, 5 Kan. App. 2d 486, 488, 619 *503P.2d 150 (1980), rev. denied 229 Kan. 669 (1981). The district court ‘has broad discretion in determining what evidence will be allowed in an eminent domain proceeding.’ U.S.D. No. 464 v. Porter, 234 Kan. 690, 694, 676 P.2d 84 (1984). In essence, the initial district court inquiry is simply a determination as to the relevance of the proffered comparable sales evidence.
“ ‘Generally, when considering a challenge to a district judge’s admission of evidence, an appellate court must first consider relevance. Unless prohibited by statute, constitutional provision, or court decision, all relevant evidence is admissible. K.S.A. 60-407(f). Evidence is relevant if it has any tendency in reason to prove any material fact. K.S.A. 60-401(b). To establish relevance, there must be some material or logical connection between the asserted facts and the inference or result they are intended to establish. [Citation omitted.]
“ ‘Once relevance is established, evidentiary rules governing admission and exclusion may be applied either as a matter of law or in the exercise of the district judge’s discretion, depending on the contours of the rule in question. [Citation omitted.]’ [Citation omitted.]” Mooney v. City of Overland Park, 283 Kan. 617, 619-20, 153 P.3d 1252 (2007).

See also City of Mission Hills v. Sexton, 284 Kan. 414, 160 P.3d 812 (2007).

In this case, Justice Rosen attempts to move the question of relevance from the realm of discretion, albeit discretion guided by case law, to the second step of the analysis where our review is de novo. This leap is justified by relying on Love v. Common School District, 192 Kan. 780, 391 P.2d 152 (1964). In that decision the court determined:

“[E]vidence of the value of plaintiff s property in 1958 would not be competent to establish its value in 1961 under the circumstances of this case, where improvements to plaintiff s property had been added after 1958, and where there was a total lack of evidence by means of which its value in 1958 could be compared with its value in 1961.” (Emphasis added.) 192 Kan. at 783-84.

Justice Rosen interprets that holding as removing discretion from the trial court. Contrary to that conclusion, several discretionary components are embedded in the Love holding, including determining what length of time is too remote; whether there are substantial improvements or investments in the property; and, finally, the component which the other justices ignore, whether there is evidence providing the means for comparison of the values at the different times.

*504In listing these factors, Love did not establish any bright-line boundaries beyond which a trial court abuses discretion; in other words, no rules were established that would control the outcome of the trial court’s application of the identified factors. For example, the court identified the remoteness of the sale as a factor. Yet, no rule was established as to when a sale is too remote. While Love dealt with a 3-year-old sale deemed too remote, the other justices cite cases where the admission of evidence regarding sales dating back 6, 7, and even 10 years was upheld. See, e.g., Dickinson v. United States, 154 F.2d 642 (4th Cir. 1946) (6 years); Love v. United States, 141 F.2d 981 (8th Cir. 1944) (7 years); State v. 0.0673 Acres of Land, 224 A.2d 598 (Del. 1966) (10 years). As these cases illustrate, many factors can weigh in the determination of whether one sale is too remote while another is not. Love mentioned one such factor that made the holding case-specific: the “total lack of evidence by means of which its value in 1958 could be compared with its value in 1961.” Love, 192 Kan. at 783-84. In contrast, a great deal of such evidence was introduced in this case that allowed the jury to compare the value at the time of purchase to the value at the time of taking.

In short, a trial court could apply the factors mentioned in Love and, given the difference in evidence presented regarding improvements, reach the conclusion the evidence should be admitted. Our standard of review was stated in Dragon v. Vanguard Industries, Inc., 277 Kan. 776, 779, 89 P.3d 908 (2004), where we held that, generally, the trial court’s decision is protected if reasonable persons could differ upon the propriety of the decision as long as the discretionary decision is made within and takes into account the applicable legal standards. An abuse of discretion may be found if the trial court’s decision goes outside the framework of or fails to properly consider statutory limitations or legal standards. See State v. Edgar, 281 Kan. 30, 38, 127 P.3d 986 (2006); State v. Richard, 252 Kan. 872, 881-82, 850 P.2d 844 (1993).

In this case, the trial court did consider the factors discussed in Love. First, noting the passage of time since Glacier purchased the property, tire trial court explained why under the circumstances of this case the evidence was probative. Next, the trial court com*505mented on evidence regarding the improvements to the property, i.e., that Glacier “did this” and “did that.” In essence, the trial court concluded the evidence of improvements could be weighed by the jury and, under those circumstances, the age of the sales went to the weight rather than the admissibility of the evidence. Cf. State v. Walters, 284 Kan. 1, Syl. ¶ 5, 159 P.3d 174 (2007) (“Determining whether evidence is too remote to be admissible rests within the sound discretion of the trial court. Mere lapse of time alone is not sufficient to deprive evidence of its probative value but goes to the weight of the evidence to be considered by the jury.”). Again, the trial court properly considered the factors weighing on the decision to admit the evidence. The final conclusion fell within the broad discretion of the trial court. While reasonable people could disagree with the trial court regarding whether the evidence should be admitted, reasonable people could also agree. As such, it is inappropriate to find that tire trial court abused its discretion. See State v. Moses, 280 Kan. 939, 945, 127 P.3d 330 (2006) (“Discretion is abused only when no reasonable person would take the view adopted by the district court.”).

Finally, the trial court also found that the COVs were admissible as an admission against interest. The COVs provided information about the sales and were required to be completed by the buyer, the seller, or an agent of either. See K.S.A. 79-1437c. In this case, the COV for Lot 1 was signed by the seller and could not be considered a statement of Glacier. The Lot 3 COV, however, was signed by Dean as the manager of Glacier. The COVs reflected, in essence, what Glacier was willing to pay for the property on the open market at the time of purchase. In City of Wichita v. Sealpak Co., 279 Kan. 799, 805, 112 P.3d 125 (2005), we held admissible the statements by defendant Sealpak’s owner, in property tax proceedings, of the owner s opinions (1) regarding the property’s value and (2) that the County’s appraised value was “over market value.” We noted that, under the holding in Love, the evidence might not be admissible if improvements had been made to the property between the property tax proceeding and the date of taking. 279 Kan. at 806. That distinction would not apply here because, as already noted, Love was based upon the lack of explanation re*506garding improvements. Here, there was considerable evidence regarding changes to the valuation, and the COVs could have been admitted as a declaration against interest. The jury could weigh that evidence against the evidence regarding improvements, the experts’ valuations, and other evidence to determine the fair market value at the time of taking.

The evidence was probative and, in the trial court’s discretion, admissible.

McFarland, C. J. and Nuss, J., join in the foregoing concurring opinion.