The Emporia Gazette

May 27, 2012

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A Lyon County jury has awarded the DeBauge family $552,818 for land taken by the Kansas Turnpike Association last summer.

The jury split the difference in the case Friday, giving less than the family wanted but more than the KTA would have had to pay. A board last year set damages at nearly $360,000, which prompted the DeBauges to take it to court.

“I’m somewhat disappointed in the amount,” said John Hamilton, the family’s attorney in the case. “But I thought the case went about as well the case could go. Obviously, they didn’t buy the turnpike’s numbers, either.”

The taking affected a 61.5 acre tract west of Emporia, bordered by U.S. Highway 50, 18th Avenue and Americus Road. The family’s plans are to put a commercial development there. The KTA claimed the land in July as part of a project to clean up the “spaghetti bowl” of access roads near the Emporia turnpike entrance.

The amount also compensates the family for nearly two acres that were rendered useless by the taking.

In the four-day case, estimates of the land’s value were all over the map. At the high end, appraiser Michael Hinkson flirted with a million dollars, estimating damages at $993,002.

The low end came Friday morning, when Emporia real estate broker Don Ek estimated damages at $285,901. Ek has worked full-time in real estate since 1960 but is not a licensed appraiser.

In between were estimates by appraisers Gerald Maier ($890,000) and Reg Cordry ($375,000). Cordry performed the 2006 appraisal for the KTA.

“This one is different than many cases because it’s not going to turn on any factual specifics,” Judge Jeff Larson told the attorneys before the jury received its instructions. “It’s going to turn on whose opinion they trust and why.”

In closing arguments, each attorney could find abundant reasons to trust or not trust particular experts. Shields told the jury that Hinkson’s estimates depended on getting two “big box” retailers on the land in the near future. Without that, he said, the numbers don’t work.

“In his 2003 analysis, he said a big box would come within two years,” Shields said. “That’s 2005. I don’t see a big box here. In his analysis in 2006, he said within a year, we’d see the first one. That’s next month. I don’t see anything.”

He also reminded the jury that the other plaintiff’s appraiser, Maier, had been disciplined by the appraisal board in 1997 for providing some estimates that were “speculative” and “unreliable.”

Hamilton, meanwhile, didn’t consider Ek’s figures reliable at all. Ek testified that he had picked seven sales in Emporia he thought were comparable, three from the north side of town and four from the south. He adjusted those sales for 3 percent growth per year, blended them together and took the average.

Hamilton maintained that Ek had overlooked one of the best-fitting sales, the Patel tract purchased by the Flying J truck stop. Ek said he didn’t think it would have made much of a difference if he had included it, while Hamilton argued that it could have boosted the damage estimate substantially.

“Mr. Ek is obviously very qualified as a real estate salesman,” Hamilton said. “But he is not an appraiser. ... I believe that Mr. Ek’s testimony should be disregarded.”

Shields argued that Ek’s experience and feel for the Emporia real estate market entitled him to some respect by the jurors.

“His impressions and his analyses are entitled to substantial attention from you,” Shields said.

Hamilton also reviewed the testimony of Cordry, who spent more than four hours on the stand Thursday. During that testimony, Hamilton had brought out preliminary calculations and rough drafts from Cordry’s file that could be used to calculate three other damage values, all of them of $1 million or more.

“All roads lead to a million dollars in this case,” Hamilton said.

Cordry testified earlier that he hadn’t seen some of the notes, which were made by his associate, but that they had discussed some possible figures and thrown them out as unsupportable.

Shields said the figures Hamilton had calculated from Cordry’s file were unrealistic. In one case, he said, if you followed Hamilton’s logic, the ground would be worth more than $152,000 per acre.

“Nobody testified to that,” he said.

The two also fenced over whether an access point at U.S. Highway 50 could be made into a viable commercial entrance for the proposed development or whether the more likely frontage was along Americus Road.

Shields said after the trial that the jury’s behavior wasn’t too surprising.

“Oftentimes in a trial like this, juries will take all the evidence and feel there’s some middle ground possible,” he said. “I think the numbers reflect that process.”