State Ex Rel. Missouri Highway & Transportation Commission v. Anderson

350 aggra of these Illinois. Neither

murder vating disputed. After circumstances ex rel. STATE MISSOURI HIGHWAY review, find that there is independent we AND TRANSPORTATION COMMISSION, Relator, support aggra both sufficient evidence vating circumstances. v. Finally, “[wjhether the must consider we ANDERSON, The Honorable David dispropor- is excessive or sentence of death Judge of the Circuit Court penalty imposed in similar

tionate Missouri, County, Respondent. Greene crime, cases, considering both No. 68446. evidence, the defend- strength of the Missouri, Supreme The 565.035.3(3), 1986. suf- RSMo ant.” § En dispute. is not in Banc. ficiency of the evidence review, find independent we After July 14, 1987. strength to be overwhelm- of the evidence 15, Rehearing Sept. Denied ing. repeatedly reviewed the We have sentence for indis

propriety the death committed the course criminate murders penal robbery. death We held the have disproprion nor ty to be neither excessive Johns, State v. See in such cases. 679 ate denied, 1984), cert. 253, (Mo. banc 1034, 1413, 105 84 470 U.S. S.Ct. L.Ed.2d v. Byrd, (1985); 494 State denied, (Mo. 1984), cert. banc U.S. 1230, 1233, (1985); S.Ct. 84 L.Ed.2d Gilmore, (Mo. State 661 S.W.2d 519 denied, 466 U.S. 1983), cert. banc (1984); State S.Ct. 80 L.Ed.2d 476 Laws, 1983), cert. (Mo. banc

denied, 1210, 104 S.Ct. 467 U.S. Betts, (1984); State v.

L.Ed.2d 1983); New S.W.2d 94 lon, 1982), cert.

denied, 459 U.S. 103 S.Ct. (1982).

L.Ed.2d 149 appellant’s clearly reflects record complete disregard sanctity of hu- life.

man death are judgment and sentence of affirmed.

AH concur. Asst, Gladden, Curran, Judy H.

John Counsels, Ring, Counsel, Bruce A. Chief relator, Springfield, for Garrison, Springfield, for re- Phillip R. spondent.

WELLIVER, Judge.

Relator, the Missouri and Transportation Commission seeks writs prohibition pro- and mandamus directed at hibiting County Judge Greene Circuit issuing subpoenas Anderson from two duc- relator’s appraisers.1 es tecum to two land Appeals, District, The Court of Southern preliminary writs issued which were quashed by opinion. We transferred the existing case to examine the Const, law. Mo. V, art. 10. We make the alterna- peremptory tive writ of mandamus and the preliminary prohibition writ of absolute. extensively We have from the borrowed J., dissenting opinion by Flanigan, filed Appeals, the Court Southern District.

I

This case stems from relator’s March petition to condemn land owned Farm, Springfield South Ronald K. Sten- ger, Stenger, Springfield Land Neil K. Company. sought by land relator as part highway project utilizing of a feder- al funds. 4,1984, May

On the owners filed motions evidentiary hearing to dismiss and for an jurisdictional phase of the condem- on the 27, 1985, February nation. On owners Depositions and a Mo- filed Notice to Take Compel, relator tion to both of which 5, 1985, the quash. On March moved court the Motion to circuit sustained Quash. prohi- writs of owners bition and mandamus which District, Appeals, Southern and this Court denied. subpoenas proceeding getting prohibiting

1. In order for this to avoid reissuance of the judge rela- into the nebulous area of "mandabition” or the future. Had the circuit notified "prohidamus," subpoenas point we would out that the cir- tor that he intended to issue the judge already subpoenas grant cuit has issued duc- relator time within which that he would already prohibition, prohibition es tecum and would has overruled the motions to seek then quash subpoenas. required Granting raise all relief to rela- have been the writ would, discussion, believe, necessity, ordering require tor should be in issues. Our we mandamusing subpoenas quashed being postured prohibition. terms of the case 3, 1985, court, Chapter 1986,2 April On the circuit at the and set forth RSMo owners, subpoenas Rule 86. Both the request issued statutes and our procedure rule describe the de- appraisers, of relator’s we have duces tecum two balancing govern- vised for Sage and Mr. Bennett. The Mr. Les Jack appropriate private property ment Sage subpoenas directed and Bennett public memoranda, summaries, against the use and benefit of the notes, produce all right person every fairly the and they had or written documents which used fully compensated taking for the of the making precondemnation apprais- their property public for Both use. the statutes 4, 1985, April the relator. On rela- als for contemplate two-step pro- a and rule quash subpoenas. tor moved to On cess. Anderson, Judge April respondent, over- First, Quash subpoenas the court must determine

ruled the Motion To whether the condemnation is authorized duces tecum. law— i.e.: jurisdiction is there over the con- sought Relator and obtained proceeding.... demnation [H]as District, Appeals, Southern the Alterna- condemning authority complied with the Preliminary and the tive Writ Mandamus precedent bringing conditions the ac- Prohibition, quashed by Writ of both later (State ex rel. Advertis- opinion. We transferred. Co., ing Conley, Inc. (Mo. 1975))_ banc II Secondly, the court must establish landowners, respondent through damages taking. landowner’s from the right judge, circuit base their to have the stage, ap- At commissioners are subpoenas on duces tecum two issued pointed to assess the landowner’s dam- (1) grounds: the owners of con- ages upon payment of commis- property demned are entitled to condemning authority sioners’ award the pro- and contest the court’s proceed acquires property underlying ceed further in the condemna- prayed petition to utilize it as by contesting tion action whether relator request party may condemnation. Either complied prerequisites im- has with the jury trial to the landowner’s a establish rel. Advertis- State ex posed by damages after trial has (Mo. ing Conley, banc appealable. concluded is the case 1975), sought and that the materials McGuire, Devanssay v. State ex rel. subpoenas purpose; necessary for that (Mo.App.1981). High- (2) that since State ex rel. State two-step process ex This has an Jensen, way Commission v. tremely important guarantees function. It 1962), product priv- work public early to the commencement of ilege abrogated by Rule 56.- has been preserving to the individual project while 01(b)(3), 56.01(b)(4)(b)did not and that Rule right date to at a later landowners change the documents the status of litigate extensively thoroughly all is product, in this case from but rather work taking. relating damages sues provided whereby, under some a method purpose If the condemnation is to circumstances, subject would be from Louis build a road across Missouri St. discovery. City, single objecting land to Kansas a follow, For the we con- reasons which delay the commence has no owner ground clude that neither is valid. We years by project of the for months or ment ground first. shall discuss the second interrogatories, depositions, discovery or two-step process dilatory practices. The A litigation at contemplate not extensive does stage prior to the order Missouri law con- the first which Condemnation under peti- on the two-step procedure condemnation. It is a templates a described otherwise indicated. 2. All references herein are to RSMo unless contain, pays requires to when the condemner the commission- tion which Rule 86.04 court, registry into the of the ers’ award among things other payment, if it refuses to make such as is a statement of the foundation of case, true in this at the time of trial.” plaintiff’s right property to condemn Washington University State ex proceed- involved the condemnation Gaertner, ings; general nature statement of the “taking” has In the instant case the business, improvement of the or use proper- yet not occurred. The value of the taken; property is to be ty “immediately taking” cannot before either that the condemner or statement yet respect to mak- be ascertained. With agree proper com- owner can ing appraisals of the landowners’ paid pensation to be or that an owner time, present at the the commissionand the unknown, can incapable contracting, equal footing. landowners are on Each not be found or is a non-resident appraisal make with- side is able to its own state; sought, any right way of be obtaining out information from the other. general location and route thereof shall Weatherby Advertising In State ex rel. copy construc- be described and a of the Conley, 527 S.W.2d plans required by Section 227.050 of tion 1975), this Court said: “It is well estab- Missouri, 1949, of the Revised Statutes allegation proof in Missouri lished office shall be filed the circuit clerk’s property that the condemner and owners part and made a of each condemnation agree compensation have been unable reference; petition by ... being paid property taken is be Rule 86.04. jurisdictional.” at Weatherby, importance do not We minimize filing 336. 523.010 authorizes the Section hearing, the initial is the one in which only proceedings of condemnation where hearing volved here. This “is much more the condemner and the owners cannot preliminary hearing pretrial than a on a agree proper compensation to be upon the Washington University motion.” Medical The paid. Weatherby, 527 S.W.2dat 336. Komen, (Mo. Center v. enough petition allege should to show that App.1982). evidentiary hearing It is “an negotiations fide have occurred but bona power which the or of the condemner at a parties that the were unable to arrive property to condemn the is fi at Weatherby, settlement. 527 S.W.2d nally adjudicated.” Washington Universi 336-37. ty Komen, Medical Center v. 637 S.W.2d De City Springs In Blue v. Central 54. State ex rel. State (Mo.App.1984), velopment, 684 S.W.2d Dalton, Commission v. spoke “jurisdictional of the re the court 1973), the trial court entered an proper condemner and quirement that the pertaining order the ini after agree on the ty owner have been unable to hearing tial had been held and before the paid property compensation to be damages issue of jury. was tried to a This at 48. The being taken.” 684 S.W.2d recognized generally that “In the said, court sense, accepted the trial of the basic action requirements satisfy statutory [T]o challenged had not started at the time the evi- 523.010 RSMo condemners’ Dalton, order was entered.” 498 S.W.2d was show that a offer dence must valid usually con- party, one made other_ matter, practical precise As a extent demner, rejected by damage para- of the landowners’ is the relation- Missouri case law indicates the only stage. issue the second The mount market ship the offer and the between damages by determining are ascertained property of the to be condemned value property the fair value “im- market significant not in the determination mediately taking.” par- MAI 9.01. good before An offer need not be faith. to cre- merely sufficient “Under statutes and our ticular amount— Note, cases, binding Pre- taking contract. See occurs ate a Jensen, liminary Requirements Condemna- between initial Use, Necessity, trial, tion in Missouri: Public sought and the jury landowners Negotiations, and Good Faith depositions appraisers Mo.L. take the three (1979). hired the Highway Rev. who had been Com- expected mission and who were to be called Springs, Blue 684 S.W.2d at 48-49. appraisers as in the trial. witnesses The foregoing language, The which we be- had their work before condemna- done lieve accurate statement of the was filed. The landowners action law, indicate that nice- Missouri would depositions served take the notice to an appraiser ties of the manner obtained an order of the trial court direct- appraisal, perhaps at his even arrived ing produce appraisers memoranda itself, signifi- appraisal have no real type and notes of the here. At hearing, cance at initial which is the provided: pertinent time the Rule involved here. one examining party may inquire Clayton Kelsey, In School District to the contents or substance of state- (Mo.1946), held we an offer oral, ments, or from written obtained $15,000 faith, good though even prospective by or on behalf of witnesses damage $34,- jury returned a verdict of party. production inspec- or another County In Shelby R-IV School Dis- any writing prepared tion of obtained or Herman, (Mo.1965), trict party coparty, or his at- the adverse we held an offer which was one-sixth indemnitor, torney, surety, agent, alleged damages of the landowner’s anticipation litigation preparation or in v. Cady, State good in In faith. trial, any writing re- for or of that ... (Mo.App.1965), S.W.2d 481 court held attorney’s impressions, flects an mental good no in in money an offer of to be faith theories, conclusions, or opinions, legal light of that the landowner would benefits or, 60.01, in except provided as Rule receive, though the landowner claimed expert, not be conclusions of an shall $2,800 recently, damages. in Most in required. Baurichter, Columbia v. S.W.2d Rule 57.01. (Mo. 1986), banc this Court held that all This said: Court required that is for to attach is law, High- good allegation an uncontested that faith Under the relator State negotiations way to could not be had for the rea- was not authorized Commission unknown, appropriate suit son that owners were could file a located, agree- question not be could not be determined. in property or unless as to the ment not be reached could relationship Clearly, between Re- compensation paid the owners. market value of offer position in a to bar- lator would not be in significance is not of material determin- had, gain owners until it ing good negotia- faith existence of the investiga- through agents, made an required tions 523.010 Rule 86.04. In property. tion as to the value 56.01, Rule contains “General Pro- condemner, situation, herein such a Concerning Discovery,” ef- visions became Commission, jus- was Highway the State January fective on 1975. Prior to that might anticipating litigation that tified in cases, ex Court, State rel. date this in three circumstances, rule In we follow. Dalton, v. Highway State Commission priv- in product that the work 1973); State ex rela- prepared ileged having as been Highway v. Kali- State Commission anticipation litigation. tor’s in agent vas, (Mo.1972); State 484 S.W.2d 292 Jensen, (emphasis at 569-70 Jensen, 1962), added). and had consider the occasion to discovera- no held that it was ap- This also bility of the and memoranda of Court purpose in meaningful imate status or portion of the rule has been tion of that proceedings. recognized as such.” consistent and Kalivas, (emphasis at 295 add- Dalton, (emphasis at 802 add- ed). ed). In State ex rel. State Commis- Jensen, Court, ap- in held that Dalton, (Mo. banc sion v. product praiser’s memoranda was work 1973), in which the having pre- privileged as been and was condemner, was the an order of condemna- agent in antici- by the commission’s pared hearing. La- tion was entered at the initial Dalton, this Court litigation. pation of that the ter the trial court entered an order were not dis- that the memoranda held “divulge expert commission’s witnesses additional reason coverable appraisal their conclusions as reflected expert. conclusions of an they constituted they request reports prepared at the Rule 56.01 adoption Did the Dalton, 498 of and for [the commission].” from these reason- departure a constitute ings? Jensen, Court, held Again quoting this discovery 56.01(a) six Rule enumerates product privi- “that the work methods, interrogatories are two of which leged having prepared by relator’s been depositions. litigation.” agent anticipation Dal- 56.01(b)(1) to the dis- confines itself Jensen, Rule ton, quoting 498 S.W.2d at matter, privileged.”3 “any not covery of at The trial court had 570. regard rule a 56.01(b)(1) to the latter language With Procedure. leading of Rule is contained 26(b)(1) has said: commentator of Civil in Rule of the Federal Rules 01(b)(4). added.) 56.01(b)(3) experts Rule deals order to be within Rule (Emphasis discovery tangi- 56.01(b)(4),Sage of documents “per- and Bennett must be things under “otherwise discoverable ble party expects whom the other to call son[s] (b)(1)of Rule.” If the mat- subdivision expert as an witness at trial.” Even the dis- sought “privileged,” it is not ter “trial,” con- initial be considered 56.01(b)(3). under Rule coverable Dalton, trary made in to the statement showing 56.01(b)(4) “discovery at there is no deals with of S.W.2d Rule opinions by experts.” held expects facts known that the commission landowners subject also to the limitation This rule is hearing. of them at the initial call either 56.01(b)(1)that the mat- in Rule contained Further, seeking dis- landowners are privileged.” “not ter be covery by interrogatories deposition. or permits land- portion of Rule 56.01 No 56.01(b)(3) language, opens with the Rule notes, memoranda, provisions of owners to discover the “Subject to the subdivision Thus, if (b)(4) Rule.” the matter of this or written documents used summaries constitutes “facts sought to discovered making appraisals for the relator. by experts,” Rule opinions held known and hypothesize to foresee or We are unable 56.01(b)(3) play all does not come into at proof pleadings or circumstances where the discovery of methods of and the exclusive 86.04 would required 523.010 or Rule forth in and limited matter are set delay attendant require discovery and its 56.01(b)(4). inter- Those methods are Rule proceeding. stage of a condemnation one depositions. They do not rogatories and subpoenas duces include the issuance hearing. with a

tecum connection B believe, If, witnesses do not which we they contention The landowners’ experts, are not their Sage and Bennett subpoenas the items must have protected from memoranda and notes are contest relator’s tecum in order to duces “privi- either because compels our compliance with Jensen, and Dal- leged,” as held in Kalivas Weatherby. the effect of examination of ton, protected by the they are or because examining the effect step first As a 56.01(b)(3): following language in Rule its facts review of Weatherby, a careful materials ordering discovery of such “[I]n helpful. made, showing has required been when sign Sign owned Outdoor protect against disclosure of the court shall exist- adjacent on leased land structures conclusions, impressions, the mental sought to be land was ing highways, which attorney opinions, legal or theories of Highway Commission by the condemned party representative other high- building and wider of new (Emphasis add- concerning litigation.” the Boone ed.) even if the that a protection ways. Weatherby is afforded indicates The showing” “required County case were Callaway landowners made the County and a “hardship,” al- County of “substantial need” and Boone In the therein. consolidated showing was though it clear that no such Weatherby case, Weatherby, referred to made here. by Rid- eight, owned sign on tract had one sign lease Riddick terminated dick. hand, Sage and Ben if On the other Highway Commission. settled with at least experts, both sides nett are as petition filed a “Thereafter concede, methods tacitly the exclusive only naming rela- County Boone case] the facts obtaining opinions [the their parcel toas [Weatherby] as a defendant tor in Rule 56.- them are found known to nor narrower broader 26(b) discovery regarding is neither provides for Rule applied ‘privileged,’ at trial.... privileged.’ would be The term than that which ‘not matters as used in Rule concept Wicker, 26(b), corresponds Moore, with the Taggart J. Moore's & W. 4 J. developed of privilege (2d in the law ed. § Practice 26.60 Federal Therefore, scope privilege in evidence. Property Acquisition Policies anee and Real Weatherby, 8.”4 case, Weatherby appear to be dictum County 1970 would Callaway Act of by signs unnecessary tract fifteen owned the decision of the totally on two owned twenty- sign parcel on and one Sutterfield case. Bemac, re- Inc. Sutterfield by four owned as- rights discovery were either No Bemac, accepted Inc. an offer and fused by Weatherby or authorized serted terminating sign lease. after offer most, it was Weatherby. At it held to Relator been made offer has “No prove compliance plead and necessary to signs reference its [Weatherby] with statutes. with the federal Weatherby, 527 S.W.2d at tract.” either holding Weatherby purported The Weatherby recites opinion 335. judicial review of mandated a effect wherein it and counterclaims filed answers compliance with Highway Commission’s to make commission’s failure asserted entitling it to federal funds as federal laws to condemnation prerequisite an offer as entry of the order of prerequisite law and condemnation under traditional every case condemnation condemnation comply with Uni- alleged also failure involving funds. federal Prop- Real Assistance and form Relocation Act of Acquisition Policies erty written Perhaps, when was 4651-4655, January enacted U.S.C. §§ may those who there have been high- that federal contributions feared Motion to Dismiss The commission filed a might by be lost way funds circuit over- counterclaims. The court noncompliance with federal Commission’s entered the order of the motion and ruled Today ap- such concern requirements. condemnation. to locate unnecessary. are able pears We dealing ruling specifically No where a in these United States no case entered, par- was but the counterclaims a condemnation failed to collect condemnee appear agreement ties of federal of withdrawal award reason trial court indicated that it believed funds. disposed of orders of condemnation had history of the Uniform legislative the counterclaims. Property Real Assistance and Relocation Weatherby, 527 S.W.2d at 335.5 1970, 42 U.S.C. Act of Acquisition Policies Prohibition was denied the Court 4651-4655, January enacted § Appeals, This Court is- Western District. jurisdictions do cases from other prohibition preliminary sued writ compliance with proof of indicate that state which was made absolute. Congress to be intended the act was precedent a condition allegations in the commis- No were made courts. state petitions against sion’s filed appraisals that either or offers had been 42 U.S.C. Congress intended made, proof offered at nor was a matter between 4651-4655 to be Prohibition, justified hearing. based funds, handling agencies federal agreement what upon the so-called about the state level. See relator at do, intended to the circuit court have Sara, (Ind. N.E.2d 946 Mishawaka v. appointment prohibit lie would Indiana Court Ct.App.1979) where appraisers proceedings. and further held: Appeals right prohibition having been con- That ... are in 4651 policies set forth ceded, § holding that the com- [T]he the additional advisory only, United States 416.81 plead prove require- mission had to and Cir.1975) (7th F.2d Land 525 Acres Assist- ments of the Uniform Relocation of,” ap- “disposed original counterclaims were presume 5. If the 4. We this to mean that the appropriate reme- appear peal to be the would petition it was amended as in condemnation of, appeal they disposed neither dy. If were Riddick, eight. related to tract entire appropriate and the prohibition was nor dictum, anything. case is 358 Farms,

450, 454; fore, Paramount Inc. v. it stands to reason that owners are Morton, (7th Cir.1975) 1301, 527 F.2d discovery alleg- not entitled to on matters they in and create no edly by 42 by covered U.S.C. 4651-4655 § judicial agen condemnee to review of an subpoenas duces tecum or otherwise. cy’s property acquisition practices. do not We believe that the Missouri Gen- Mishawaka, 396 N.E.2d 947 226.150, Assembly eral intended relied on § (citation omitted). In Barnhart v. Brine Weatherby, by change or alter our law gar, (W.D.Mo.1973), F.Supp. 362 464 Chapter of eminent domain as set forth in District Court held: 523 and Rule 86.6 We do not believe that completes This of the histo- review legislature judicial intended a review of rights or ry of the “no liabilities” lan- compliance Commission’s guage 4602(a)]. U.S.C. From [42 § funding every with federal in condem- laws history, this we believe one conclusion is proceeding nation where federal funds are Congress intended Section irresistible — [4602(a)] utilized. To the extent that preclude judicial review of held, progeny they may its have so no agency federal and state actions under longer upon be relied or followed. property acquisition practices the real subpoenas The duces tecum should be U.S.C. [42 § 4651]. quashed prohibited.7 and their reissuance Barnhart, (footnotes F.Supp. 362 at 472 alternative writ mandamus omitted). peremptory preliminary made and the writ Iowa, City, Nall Motors v. Iowa 533 prohibition is made absolute. (8th Cir.1976), Eighth F.2d 381 Circuit record, reviewed the district court and af- BILLINGS, C.J., BLACKMAR, opinion firmed a memorandum on the DONNELLY, ROBERTSON basis of district court memorandum. HIGGINS, JJ., concur. District Court for Southern Dis- held, referring trict of Iowa the decision RENDLEN, J., separate dissents in Barnhart, (W.D.Mo. F.Supp. opinion filed. 1975) said: RENDLEN, Judge, dissenting. opinion In the courts view § discussed, respect- I For the reasons here is the correct one. Plaintiffs are entitled fully dissent. to no relief for the claimed violations 4602(a) clearly thereof. Section and con- prohibi- In this action for mandamus vincingly attempt preclude evinces an originally brought Ap- the Court

judicial agency review of action under District, peals, that Court issued Southern 4651.... § preliminary prohibition rule in and alter- Motors, Iowa, of mandamus and final de- City, Nall Inc. v. Iowa writ native quashed consid- (S.D. 1975). termination the writs. We F.Supp. Iowa original proceeding. er the case as an foregoing, As can seen underlying the Missouri grant U.S.C. 4651 does not the owners in cause § rights. Transportation this case There- renewable 226.150, part quoted by majority prohibition' 6. That “Prohibition or a ‘writ of is that §of appeared superior prevents in the Missouri stat- process by first infe- which a court Law, part tribunals, officers, utes as a of the Centennial Road courts, persons rior or from adopted get to Missouri out of the mud. usurping exercising jurisdiction a with which session, (first p. Sec. Laws of Mo.1921 extra been vested law.” 73 C.J.S. have not 138). days right-of-way gifts 132 and In those (1983). Eggers See State ex rel. § Prohibition by adjoining made were owners return 1980). Enright, A imagine hard surfaced roads. that members ed, It is difficult to prevent judge prohibition from lies to writ Assembly intend- of that General acting mat- outside his or even dreamed that 226.150 would Adams, ters. State ex rel. Albert v. be used connection this Court in congressional change act to the law of eminent domain of the state of Missouri.

359 legitimate exercised within private lands of two court seeks condemn highway project for in a utiliz- jurisdiction. owners use its Cracke boundaries of Drawing ing upon funds. the well Club, federal Country Sprinkle, reck Inc. v. 485 Titus, P.J., by opinion reasoned of 652, Further, (Mo.App.1972). S.W.2d 655 quashed prelimi- the Southern District prohibition mindful that we should be is question, nary rule and alternative writ great caution and sues with cases aptly put by relator is: Whether “the own- usurpation jurisdiction judicial where the of in a property ers to be condemned suit [of clearly or act in excess of the same is highway aid are involving federal funds] Eggers, evident. State ex rel. 609 S.W.2d discover, by Subpoena means entitled Douglas ex rel. McDonnell 382; State at notes, reports, Tecum the memoran- Duces Gaertner, 295, Corp. v. 601 S.W.2d 296 da, documents, made summaries or written Deering ex rel. Mil State (Mo.App.1980); Sage or used Messrs. and Bennett [rela- liken, 870, 873 Meyer, Inc. v. 449 S.W.2d appraisers], appraising tor’s owners especially (Mo.App.1970). This is true in appoint- land at the [sic] preliminary stages proceedings involving ment of Commissioners.” discovery ques rulings trial courts’ on propriety discovery is matter tions. We have steadfastly such eases discretion of the trial within the sound except in refused to interfere those rare court, ruling and we should not disturb its stepped instances where the trial court has except for abuse of that discretion. State openly beyond authority. limits of its Baker, ex v. 410, rel. Kuehl 663 411 S.W.2d urges pro- Relator that condemnation However, (Mo.App.1983). prohibition and ceedings ordinary proce- rules of civil may sparingly employed mandamus apply prior filing do to the dure overruling objec- review a trial court’s discovery grounds exceptions. argues tions to on that the stat- that the mat- It instead privileged ters or constitute special rules on condemnation utes and product, work if it can be seen ex citing State govern proceedings, refusal to forbid exceeds the trial Green, v. rel. State Commission jurisdiction court’s or constitutes a clear ex rel. (Mo.1957), State 305 S.W.2d Little Rock abuse of discretion. St. Louis James, v. State Hosp., Gaertner, 146, Inc. v. 682 S.W.2d However, (Mo.App.1938). (Mo.App.1984). support relator’s asser- these cases do not excep- proceeding prohibit they merely the circuit state that tion as after enforcing authorizing filed, court from proceedings its order tions are subpoena issuance of a duces tecum allow governed the rules of civil are to ing the condemnees to obtain the records of Green, 694; procedure. 305 S.W.2d at appraisers, relator’s relator has the burden James, at 226. There is no 115 S.W.2d of demonstrating that the circuit court from these cases which rules of indication juris lacked or exceeded its filing procedure govern prior to the diction ex rel. in issuing State the order. suggests relator no other exceptions and Eggers Enright, v. Further, cit- authority subject. on the 1980); State ex rel. Land Clear before State ex long ed cases decided were Redevelopment Authority ance for Weatherby Advertising Company, rel. Southern, Kansas 284 S.W.2d Conley, Inc. v. 527 S.W.2d is, course, (Mo.App.1955). There presumption that the trial court has acted allega- Weatherby, we held State ex rel. Martin jurisdiction, within its proper- proof that condemnor and tion and Peters, (Mo.App. agree ty owners had been unable 1983); City Maplewood ex being paid compensation to be Crandall, (Mo.App. id. jurisdictional, 1978) taken is important and it is that we not substi 226.150, legislature through RSMo tute our discretion for that of the trial commissioners, instructed appoint the the error in the re- appraisal, negotiation argument relator’s as to mainder of is manifest. and settlement comply offers and directed that it with the hearing The condemnation is an eviden- requirements spelled out U.S.C. tiary proceeding which of the the 4655,2 in those instances property §§ condemnor to condemn where, here, highway is in- federal aid finally adjudicated, is order Weatherby, taking volved. S.W.2d of entered and the substantive Meeting rights parties regarding the criteria of these sections is a of the the owner- ship property jurisdictional prerequisite appoint- determined. for University Washington Medical Center ment of commissioners or the court to for Corp. Komen, Redevelopment further proceed until the condemnor com- addition, (Mo.App.1982). petition plies therewith and to amends portion it has stated that in this of the been proper allegations. Id. at 341- include proceedings: court must determine whether [T]he argues though the Court Relator by authorized law—i.e.: requirements Weatherby has held the jurisdiction is there over the condemna- pleaded it proved, must be has not proceeding. tion This determination required discovery may had con- require- one or involve more of several cerning jurisdictional requirements. these constitutional, statutory there ments—is contends: Relator authority or ordinance for the exercise of In a the re- condemnation suit where (citation omitted); eminent domain is the im- quirements Weatherby are to be public (citations taking for a use omit- appointment posed, hearing ted); condemning authority com- has appropriate of commissioners is the time to plied precedent the conditions with by imposed to raise the issues Weather- omitted.) (Citation bringing the action. requirements Weatherby by. court’s these The trial determination on pleaded, case and relator have been issues, plaintiff is not favorable merely now opportunity asks the to offer (Citation omitted.) appealable. proof given opportunity on them. If McGuire, 622 Devanssay v. State ex rel. proof, offer relator is confident the (Mo.App.1981). Respondent compliance, will find and de- segment first of a condemna- While this appoint it termine has ex- proceeding does not determine the commissioners. due, compensation Washington tent of agree I appropriate 53-54, time While it not a University, above, finally jurisdictional prereq- proceeding determine the perfunctory for as noted case, stage of the uisites is at the this vital order of 226.150, (2) 1986, unchanged accompany appraiser, 1. Section determination RSMo pertinent part buildings, states: or which of the sum structures improvements belong hereby comply commission is other tenants directed provisions Congress any with the real act to the fair market value of the contribute providing expenditure and, the distribution and property acquired to be in the alterna- for appropriated by the United States tive, for of funds of the fair market value of the structure construction, Congress highway and to removal, (3) compensa- just for establishment of comply of the conditions rules property acquired, which tion for made Roads of the Bureau of Public approved appraisal, no less than the shall be Department Agriculture, branch of or other (4) furnishing state- the owner with a written government, acting the United under States for, of, summary of the basis ment provisions of federal law in order to se- just compensation, and established as amount cure to the state of Missouri funds allotted to (5) making just compensation an offer of the government this state the United States so established to the owner. added.) highway (Emphasis construction. Company, Weatherby Advertising State ex rel. requirements to and contin- 2. These were found Conley, Inc. toue include: (1) appraisal negotia- before tion, opportunity with an the owner to language taking is entered substantive agree, plain as the rights of the adjudicated. condemnee are precedent are states that these conditions urges it be allowed to Yet relator that proceeding further a to the court's with permitting proceed the landowners without the condemnation suit “until Commission right discovery challenge to the the of complies 527 S.W.2d at 341- therewith.” Highway pleadings proof. Commission’s is not confined to the 42. Such rationale majority and In effect relator the demands suggests. relator limited factual situations power in today condone an unfettered the Examining the discoverable nature now agency discovery avoid and condemning to tecum, sought by duces of the documents bearing in its on the conceal facts control rel. State Commis- State ex statutory question. By any central issue Jensen, 568, v. sion 571 S.W.2d fairness, the the owners of standard letters, 1962) held it was that memo- to be condemned entitled soon are prepared by appraisers for randa or notes jurisdiction pro- question the court’s to to department exempt highway the were from contesting by ceed whether relator has discovery product prepared in as work an- complied previously the con- with discussed ticipation litigation. A decade we later imposed by precedent ditions the law.3 opinion reexpressed the view prerequisites that These become damages in condemnation appraisers a hollow sham absent the of the con- as to by demnee to discover lawful means the product were to considered work suits necessary challenge information to the con- ex rel. State subject discovery not assertion that been Kalivas, demnor’s have v. Highway Commission State met. 292, (Mo.1972). Relator (of sought argues now that documents argues that Relator further Jensen) type the same as those principles not an- is involved because the product under are the work of relator and apply only nounced there cases where that not discover- teachings case are appraisals proper- there has been no However, relator fails to take into ty allega- made able. the condemnor has no account that since Jensen the work product has tions that such done. I cannot been added); consideration.") complying prerequi (emphasis School Dis Besides with the federal 4651, 860, Kelsey, sites 4655, in 42 contained U.S.C. 4652 and Clayton §§ 196 S.W.2d trict of authority always condemning 1946) (Mo. (“there has nothing in the record [other required by engage good been this Court justify disparity] that would overturn than settling avoiding negotiations faith aimed at ing ruling theory the condemna that Weatherby, condemnation. 527 S.W.2d at 341. faith_”); good Blue tion was not in Note, Preliminary Requirements See also For Association, Springs Development v. Central Necessity, Condemnation Missouri: Public $132,200 44, (“if (Mo.App.1984) Use, Negotiations, And Good Faith 44 Mo.L.Rev. offer, appraisal, based on an turns which was (hereinafter (1979) Preliminary Re finally only half or one-fifth the value out Condemnation). quirements Following For a awarded, bad no indication of itself cases, majority brief discussion of several faith.") added); (emphasis ex State for somehow concludes that those cases stand the Cady, proposition a that the amount offered dismissed, appeal de (Mo.App.1965), cert. 483 nied, signifi condemning authority not of material "is 87 S.Ct. L.Ed.2d 300 385 U.S. determining good cance in the existence of (evidence (1966) negotiate attempt of an held Ante, negotiations required_" faith satisfy of act sufficient to condemnor’s burden Initially, prov the condemnor has burden faith). ing good Certainly, vari a substantial faith, however, ing good once that burden appraised and the between the value actual ance a must demonstrate satisfied lack condemnee good faith a lack of award can be evidence of good Preliminary Require faith. See weighed all of the other which can be Condemnation, ments For 44 Mo.L.Rev. at 509. surrounding private taking of a owner’s events by majority ofAll the cases cited hold mere sole but variance is not the evidentia- land ly ap disparity that a substantial between “good ry to the faith." fact relevant praised does value and actual award itself reasonably cannot construed The cited cases satisfy Shelby a condemnee’s burden. See preclude pertinent are Herman, factors which other County R-IV School District ("no accordingly 1965) legitimate subjects proof for evidence discovery legitimate subjects issue on the good of bad [of faith ... therefore faith “good condemning subject authority] faith.” is not covery give a clue substantially has modified allowed where: it will privilege been 56.01(b)(3), provides that facts that cannot otherwise be by Rule relevant seeking showing party found; party seeking discovery “upon a can mate- by using has substantial need of the its case information in prove preparation possession; of his case and that party’s rials and where a the other hardship to is unable without undue deponent employee he is an of an adverse ma- equivalent of the the substantial party obtain and a hostile or evasive witness so dis- by other he obtain terials means” for im- prior his statement is needed anticipa- prepared in covery of documents purposes prevent peachment undue litigation. It and its is this new rule supra; 27 Am.Jur.2d, C.J.S., tion hardship. 23 provisions must exam- qualifying that be supra. determining the so called whether ined question necessary the evidence Without Porter v. product” is “work discoverable. requirements to demonstrate whether the Gottschall, 615 S.W.2d 63, 65-66 solely is have met been 56.01(b)(4)(b)4 change 1981). not Rule did In addition hands of condemnor. sought in this of the documents the status (if appraisers typically not in- condemnor’s product, provides a from work but case prone support condemnor variably) are to which, circumstance such method under opportunity impeachment thus the and here, present information those provide indispensable ingredient to is an v. Carthen may subject discovery. to be proceedings. discovery If in these fairness 787, Louis, Hosp. St. 694 S.W.2d Jewish allowed, juris- to facts as relevant were Brot, 652 Willis (Mo.App.1985); 791 prerequisites go undisclosed could dictional (Mo.App.1983). Our 739-40 S.W.2d helpless to the condemnee would be and openness, follows rule reflects a.new which challenge assertion the condemnor’s bald secrecy to remove and eliminate the trend complied jurisdictional it had with the that litigation from “dog dog” aspect of eat requirements the law. justice. system that: It has been well stated need” To demonstrate a “substantial that good nearly all cases [I]n exists, discovery must party seeking with reason justifiably could and cause 1) importance materials to show: condem- argued. obligation all be discovered; 2) inadequate alternative be to cases is to fairness both nation render 3) discovery; a lack of the means of condemnee; a con- public and the Dep- equivalent. Am.Jur.2d 23 substantial being against his dispossessed demnee (1983). Discovery ositions 66 § will; merely compensation; just he seeks hardship, prejudice, The elements of any way means he to in limit the exception injustice contemplated by this might to a condemnor’s use combat seeking party to the rule exist where the unacceptable. strength would seem is, discovery diligence, unable with due Reskin, On Emi- Rohan M. Nichols P. & 7 facts, material obtain evidence of some (1987). In addi- Domain nent § 7.03[2][c] events, conditions, circumstances tion, Florida court has stated: a reveal, discovery probably will par- litigation private between Unlike situation, where, because of this governmental by any ties condemnation the case ade- party prepare is unable “dog matter of authority should not be a for trial. quately any cost”. dog” or “win at eat Discovery (1959). Thus 27 72 C.J.S. ****** and dis- need has been found substantial 56.01(b)(4)(b) may (Mo.App.1983), appears it the documents party dis 4. Rule "A states: product, as work by deposition opinions to here described cover the facts longer testify.” rule means expert our new it no expected Rule under which the ordering jurisdiction in 56.01(b)(3) begins language that trial court exceeds its “Sub Eggers (b)(4) discovery. e.g., See State ex provisions their ject subdivision to the Rule_" 1980); (Mo. banc Enright, S.W.2d light of Carthen this While (Mo. Douglas Corp. Louis, v. Gaert Hosp. State ex ret. McDonnell ner, St. S.W.2d 787 Jewish Brot, (Mo.App.1980). App.1985) and Willis v. Considering necessary develop the nature of the condem- access to information present there is their contentions and to their re- proceedings, nation we hold that requirements spective sides of the issues framed of the essential no violation ex rel. Anheuser v. No- State pleadings. compelling of law [condemnor] lan, (Mo.App.1985). produce in of trial information advance In this connection we have stated that bearing “just” compensa- on the issue of various information. Dept. Shell ham, N.W.2d 424 apparent So.2d Transportation bonum”, tion. place the pertinent possible detriment of the individual land from tion” ing the property, will decide to settle the issues without in a ting corners or rive an owner whose cy. develop that the “unfairness” to [the] We It (Utah 1979). N.W.2d trying seeking to effectuate the “summum ^[******] suit, may If the “speedy him of the reasons, discovery do not Transp. Rayco Corp., 599 P.2d trend of the states to Commission, State Road going basis advantage by disclosing these as it should there is no matters its case. We can [condemnor] against (1963); governmental See, that the condemnor will de- (Fla.1961). case. believe (1976); e.g., Crist v. Iowa State condemnee, being trial, Grudnik, inexpensive prior his will. justification governmental agen- in every 255 Iowa Department, (Tex.1977); evaluation thereby resulting to trial. Barker v. Dun secretive to the ex This of this sort of unit or procedure disadvantage 90 S.D. being envisage after learn- permit, determina- condemna- follows Dept. It for cut- agency of his might taken Utah will no an tion_” there is no reasonable privilege blithely which such were found no evidence such as the Federal ther ly evidencing believe relator has distressing. unambiguous gress stances in the common are afforded court erred or to show how else the owners has failed to demonstrate how the trial (Emphasis crystal clear § State ex rel. by, “[impediments § or act in excess of the same. Tarrasch v. Finally, 226.150 226.150, compel production relevant proceed ex rel. Chandra v. majority misses the mark when good are to “very specifically rules or conditions of added.) 527 S.W.2d at 341. Weatherby, matters are to quite shall federal legislative intent We noted of court’s validity faith, Crow, 622 S.W.2d is to be decided. appearance of evidence at the majority’s flouting statutory to the mandates whether irrelevantly asserts it has usurpation comply met statutes, Highway Administra- carefully overruling its burden law,” jurisdiction Congress way relatively with of witnesses and compliance language are not entitled states that the Sprinkle, and claims of to avoid litigated contained negotiations acts of con- scrutinized. especially I Weather- intended agencies of truth of clear- few Relator do not to fur- with in- it Missouri, a condi- purposes federal statutes be compliance with in state surprise, precedent eliminate concealment and to condemnation Ante, point of The focal litigants determining prior facts at 357. aid courts.5 trial, and must be whether provide parties inquiry our should and to with employed. certain- It majority weight has never been 5. The attaches substantial to the a sanction [any] Com- ly fact that are unable "to locate case of the is in the best interest failed to pertinent these United States where a condemnee collect a condemnation award comply federal with the mission to reason of risking loss of regulations in order to avoid Ante, withdrawal of federal funds.” that, legisla- But more than federal monies. reported While there in fact be no case provided specifically by statute ture has which federal funds have been withdrawn guidelines. compliance federal with conclusively absence does not establish such compliance legislature intended with 4651, 4652, 42 U.S.C. and 4655 be §§ precedent to condemnation

condition language Clearly, courts. Missouri hereby commission directed to “[t]he provisions comply with the act 226.150, Congress,” contained in makes regulations conformance federal prerequisite to condemnation in our State. majority its zeal to abandon the

holding erroneously dis- regards plain language of the statute preference substitutes Missouri for the intention proper exercise Such is not a Legislature. judicial function. rule preliminary I order would quashed. writ be and alternative (Substituted for Guila Kern JOHNSON George Johnson, Jr., A. Employee-Deceased), Claimant-Appellant, FIRE DEPART

CITY OF DUENWEG MENT, Employer, In and Continental Insurer, Company,

surance Defendants- Respondents.

No. 68906. Missouri, Supreme Court of En Banc. July 14, 1987. Rehearing Sept. Denied notes pre- all, were in the memoranda praisers condemnation actions. moment that was action discovery. pared before the condemnation this Court denied feeling that ruling part on its commis- based its months before the filed and ten “begun had report. “the trial of this cause” filed their sioners progress purpose of these [was] Highway ex rel. State Commis- State Dalton, 498 rulings.” (Mo.1972), Kalivas, 484 S.W.2d 292 sion v. hired in a condemnation case the landowner said: Court jury trial used appraisers, but at the three presumptuous, it “Although somewhat of them. On cross-examination two say the trial perhaps fair landowner, elicited the the commission prior reasoning premised on court’s was employed ap- had fact that the landowner prohibited such appellate opinions which three, that fact was praiser number other, reason, among inquiry for upon by the commission’sattor- commented Jensen, such an ‘as discussed that: argument. The Court held ney in his final mandatory if are to allow approach is we appraiser number three was available requirement “nego- jurisdictional wit- to call as its own for the commission condemnation to contin- tiations” before “[appraisers in a condemna- ness and that any legitimate status or mean- ue to have any other are to be treated as tion action] proceedings.’ in such ingful purpose expert so-called witness.” State ex rel. State Commis- Kalivas, 484 S.W.2d at 295. Kalivas, 484 sion said: However, (Mo.1972). and are there were However, depart we do not from reached other reasons for the conclusion that, Jensen, prior ruling supra, 57.01(b), example, Rule For Jensen. trial, opinion appraiser of an as to discovery, specifically pro- pertaining to damages in a condemnation suit is vides, part, production that: ‘The or product subject considered work and not writing pre- inspection obtained Jensen, discovery. As discussed re- pared by party adverse ... approach mandatory we such an except provided Rule flects ... require- jurisdictional are to allow the [pertaining physical and mental 60.01 ‘negotiations’ ment condem- before an ex- conclusion examinations] any legit- nation continue to have Interpreta- required.’ pert, shall not be

Case Details

Case Name: State Ex Rel. Missouri Highway & Transportation Commission v. Anderson

Court Name: Supreme Court of Missouri

Date Published: Jul 14, 1987

Citation: 735 S.W.2d 350

Docket Number: 68446

Court Abbreviation: Mo.