Pener v. King, 114850

KDOT initiated condemnation under the Eminent Domain Procedure Act after a $104,930 purchase offer failed; an appraisers' panel awarded $195,500 and landowner Pener demanded a district-court trial.
At bench trial the court received testimony from three valuation witnesses and awarded damages of $295,702; court denied Pener's request for attorney fees and expenses.
Dispute over whether the judgment should include the full $65,720 fence-replacement figure KDOT listed for administrative appraisal, or only the diminution in value caused by fence removal.
Pener contended a particular nearby sale ("comparable sale one") required higher before/after valuations; KDOT’s expert gave lower values, and the court adopted an approach largely consistent with KDOT’s appraiser.
Pener sought attorney fees under K.A.R. 36-16-1 (implementing 49 C.F.R. Part 24) and alternatively under the court’s inherent sanctioning power for alleged bad-faith prelitigation conduct; the district court denied relief.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether court must include full fence replacement cost as a separate item in condemnation award	Pener: KDOT’s administrative exhibit/stipulation and K.A.R. 26-513(d)(8) require awarding the $65,720 cost-to-cure	KDOT: Statute and appraisal practice limit recovery to diminution in fair market value, not summation of replacement cost	Court: Rejects summation; adopts unit rule — include fence only to extent it affects fair market value (here $11,000)
Whether court failed to give adequate weight to a specific comparable sale in valuing before/after damages	Pener: Comparable sale one justifies higher pre-taking and larger damages	KDOT: Expert testimony supports lower values; valuation is for factfinder to weigh	Court: Valuation was factual and within range of expert testimony; appellate court will not reweigh evidence; award affirmed
Whether Pener is entitled to attorney fees under K.A.R. 36-16-1/49 C.F.R. §24.107 or via court’s inherent power	Pener: K.A.R. 36-16-1 applies to “all acquisitions” and thus authorizes fees; alternatively, court should sanction KDOT for bad-faith prelitigation conduct	KDOT: C.F.R. and URA permit fees only in abandoned takings or inverse condemnation; K.A.R. 36-16-1 governs administrative acquisitions, not eminent-domain litigation	Court: K.A.R. 36-16-1 does not authorize fees here; C.F.R. limits fee awards; no exceptional bad-faith shown — denial of fees affirmed

Rostine v. City of Hutchinson, 219 Kan. 320 (codifies unit rule; rejects summation method for valuation)
Kansas City Mall Assocs. v. Unified Gov't of Wyandotte County/KCK, 294 Kan. 1 (unit rule limits consideration of improvements to extent they enhance land value)
Mettee v. Kemp, 236 Kan. 781 (verdict must be within range of opinion testimony; comparable sales do not authorize findings outside expert ranges)
Bonanza, Inc. v. Carlson, 269 Kan. 705 (interpreting state compliance with URA reimbursement provisions for litigation expenses)
Miller v. Glacier Development Co., 284 Kan. 476 (award supported if within range of expert values)