City granted new trial after being found liable for wrongful building demolition

by Kaitlin Heinen and Gary Taylor

Dave McNeill v. City of Kansas City, Missouri
(Missouri Court of Appeals, August 7, 2012)

In summer 2008, McNeill purchased property, containing a building that had been on the City of Kansas City’s dangerous buildings list since August 2001. McNeill notified the City of his plans to renovate the building into a multi-tenant residential building. He began various renovations, but the work on the building stagnated when McNeill’s bank backed out of a construction loan.

In June 2009, the City sent a letter to McNeill instructing him to remove some debris sitting on the property and some weeds  The city requested a meeting with him. McNeill complied with the cleanup request. On June 24, 2009, McNeill met with City Inspector Smith and Codes Enforcement Supervisor Parks, who was filling in for Crider, the Codes Enforcement Supervisor regularly assigned to that file. McNeill explained his plans for continued renovation and that he would obtain more funding soon. Smith and Parks agreed to allow McNeill more time. They also ordered McNeill to remove more debris from the side of the building, so McNeill hired a contractor to remove the debris and grade the yard in July 2009. McNeill notified Smith and Parks of the completed work on July 20. On July 31, McNeill received preliminary commitment for another construction loan.

On August 8, 2009, the City demolished the building without contacting McNeill, disregarding the policy of the Dangerous Buildings Division to send the property owner a pre-demolition notice. Crider had recommended the demolition based on records on file, which included neither Smith and Parks’ notes from June 24 indicating their promise to McNeill for more time, nor a record of McNeill’s July 20 phone call.  The City subsequently sent McNeill a bill for the demolition.

On August 7, 2010, McNeill filed a petition, claiming the city wrongfully demolished his building. The trial’s jury returned a verdict in favor of McNeill’s claim for $150,000. The City then claimed that the trial court had erroneously submitted to the jury an instruction containing a roving commission. (A ‘roving commission’ is “an abstract instruction…in such broad language as to permit the jury to find a verdict without being limited to any issues of fact or law developed in the case.”) The trial court agreed and granted the City a new trial.  McNeill appealed to the Missouri Court of Appeals.

The Missouri Court of Appeals agreed with the trial court’s conclusion that its jury instruction created a roving commission.  The Court of Appeals agreed that the instruction given to the jury as to finding whether the building was “wrongfully demolished” was too general because it did not identify the acts or omissions of the City that might be considered “wrongful.”  The Court of Appeals noted that there are no Missouri Approved [Jury] Instructions -nor is there any case law interpreting – the state statute (Section 67.450) regarding wrongful demolition. Without precedent, the protocol then is to apply the word’s “plain and ordinary meaning,” which can be appropriately found in the dictionary. The Court of Appeals found that the term “wrongful” does not need to be defined; rather the instruction should simply request the jury to find that (a) plaintiff owned a building, (b) the City demolished it, (c) that the City‟s demolition of the structure was wrongful in one or more specified ways, and (d) plaintiff was damaged as a direct result thereof. In its simplest context, the word “wrongful” or “wrongfully” “only requires the result to be incorrect, regardless of whether the City’s conduct was mistaken, careless, negligent, reckless or intentional.” The submission of the way or ways in which the demolition was wrongful will differ from case to case.

The trial court’s grant of a new trial was affirmed.  The Court of Appeals recommended that on retrial the trial court refer to Section 67.450 to establish the criteria on which the jury should be specifically instructed, and that the jury be instructed that any demonstrations of wrongful demolition must be supported by evidence.

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