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Construction and Eminent Domain Law Update Chris Burger May 18-19, 2017 University of Kansas School of Law Recent Developments in Construction Law Christopher F. Burger* Lindsey Masonry Co. v. Murray & Sons Constr. Co., 390 P.3d 56 (Kan. Ct. App. 2017). An opinion written by Judge Hill arising from a general contractor and its subcontractor exchanging various drafts of form agreements on multiple projects, and the award of interest, costs, and attorney fees under the Kansas Fairness in Public Construction Contracts Act. Syllabus 1. To form a binding contract, there must be a meeting of the minds on all essential elements. Contract formation requires an unconditional and positive acceptance. A conditional acceptance is really a counteroffer and no contract is formed. 2. An acceptance of a contract must mirror the terms of the offer. A conditional acceptance is a counteroffer that rejects the original offer. 3. When one party has knowledge of a term required by another party and continues to do business with that party without objection, the facts may establish that the party impliedly agreed to the term. 4. Under the Kansas Fairness in Public Construction Contract Act, found at K.S.A. 161901 et seq., the term "contract" means a contract or agreement concerning construction made and entered into by and between an owner and a contractor, a contractor and a subcontractor, or a subcontractor and another subcontractor. 5. An implied-in-fact contract has the same legal effect as an express contract. Parties may be bound as firmly by implied contracts as by those expressed in words, oral or written. The law implies, from circumstances and the silent language [**2] of the parties' conduct and actions, contracts and promises as forcible and binding as those made by express words or through the medium of written memorials. * Adjunct Professor of Law at University of Kansas School of Law and partner with Stevens & Brand LLP in Lawrence Kansas. This does not create an attorney-client relationship and no legal advice is being given. Any opinions are mine alone. 1 6. Prejudgment interest can be awarded to both express and implied contracts. 7. The Kansas Fairness in Public Construction Contract Act requires a contractor pay its subcontractors on any properly completed and undisputed request for payment within 7 business days of receipt of payment by the owner. K.S.A. 16-1903(f). If the contractor fails to pay its subcontractors within such timeframe, the contractor shall pay 18 percent interest on the undisputed amount. K.S.A. 16-1903(g). 8. When a court resolves a case based on quantum meruit, it finds that no contract existed. In such a case, the law creates a contract to prevent unjust enrichment. In contrast, an implied-in-fact contract has the same legal effect as an express contract. 9. It is fundamental that equitable remedies are generally not available if there is an adequate remedy at law. Quotes of Interest “Though there were setoffs claimed, the underlying money that Lindsey was owed for doing the work described in his payment applications was not disputed. … Under the Act, "'undisputed payment' means payments which all parties to the contract agree are owed to the contractor." K.S.A. 16-1902(i). A panel of this court has held that for a payment to be disputed, there must be some matter that can be disputed in good faith because Kansas contracts contain an implied covenant of good faith and fair dealing.” Lindsey Masonry at 68. “Raising counterclaims does not erase the fact that Lindsey did the work and was entitled to payment.” Lindsey Masonry at 68. “We acknowledge that parties may be bound by the terms of a contract, "even though they do not sign it, where their assent is otherwise indicated, such as by accepting and acting upon the contract, or by ratifying the contract, [**12] or by the acceptance by one of the performance by the other." 17A Am. Jur. 2d, Contracts § 172, p. 184. … We note that the Restatement also provides: "An offer can be accepted by the rendering of a performance only if the offer invites 2 such an acceptance." Restatement (Second) of Contracts § 53 (1981; online 2016).” Lindsey Masonry at 61. “In our view, the district court's ruling is consistent with the general rule that an acceptance of a contract must mirror the terms of the offer. 17A Am. Jur. 2d, Contracts § 80. A conditional acceptance is a counteroffer that rejects the original offer. Sandoval, 295 Kan. at 282. Lindsey and Murray did not have an agreement by virtue of Murray sending Lindsey a modified AIA contract. Instead it was another offer. [**22] Thus, there was no contract unless Lindsey accepted Murray's offer (the modified version of the AIA) in its entirety. And, when the district court ruled, there was no [*65] evidence that Lindsey expressed acceptance to the modified AIA contract document. … But that does not necessarily resolve the issue of whether certain provisions in the contract documents exchanged by the parties were relevant to establishing the parties' course of conduct for an implied-in-fact contract. Implied-in-fact contracts arise in Kansas most frequently in the employment context.” Lindsey Masonry at 64-65. “The real problem here lies in the idea that the doctrine of implied-in-fact contracts ought to be deployed when the parties actually have engaged in the readily identifiable steps necessary to form a traditional contract or when the parties are presumptively sophisticated [**48] business entities undertaking a multifaceted commercial deal. Courts may find implied-in-fact contracts when the overall circumstances indicate the parties intended to be bound to certain mutual obligations but have not formally exchanged discrete offers or acceptances. The terms of their contractual relationship must be discerned from their general communications and the pattern of their interactions.” Lindsey Masonry at 73 (concurrence). “This judicial opinion has SHOCK revelation about the law in the State of Kansas” a. Contract formation discussion for the situation when bidders reference form documents as part of their bids, but the parties then exchange a series of competing drafts under separate platforms, AIA and ConsensusDocs, on multiple serial and simultaneous projects. b. The court would not use overlapping terms to form a patch-work agreement. i. “In our view, the district court's ruling is consistent with the general rule that an acceptance of a contract must mirror the terms of the offer. 17A 3 Am. Jur. 2d, Contracts § 80. A conditional acceptance is a counteroffer that rejects the original offer. Sandoval, 295 Kan. at 282. Lindsey and Murray did not have an agreement by virtue of Murray sending Lindsey a modified AIA contract. Instead it was another offer. [*22] Thus, there was no contract unless Lindsey accepted Murray's offer (the modified version of the AIA) in its entirety.” Id. at 56. c. But, the court may have left open using an alleged course of conduct between the parties as a tool to form an implied-in-fact contract through the exchanged provisions between the form documents. The court seems to have left open the plausibility of the argument, but factually rejected it since there was no expression either side intended to be governed by the terms of either contract. d. Implied-in-fact contracts held to have the same legal effect as an express contract under the Fairness Acts. i. “When a court resolves a case based on quantum meruit, it finds that no contract existed. In such a case, the law creates a contract to prevent unjust enrichment. In contrast, an implied-in-fact contract has the same legal effect as an express contract.” e. Discussion of “undisputed” under the Act(s). i. “The district court found the entire net judgment "undisputed." At a later hearing, the court explained that there was never a dispute that the work described in the schedule of values was done. Though there were setoffs claimed, the underlying money that Lindsey was owed for doing the work described in his payment applications was not disputed.” ii. “for a payment to be disputed, there must be some matter that can be disputed in good faith because Kansas contracts contain an implied covenant of [*32] good faith and fair dealing.” iii. “This boils down to whether Murray's counterclaims make Lindsey's claim for money owed under the contract "disputed" under the Act. Reasoning by analogy, we think not.” iv. Undisputed because liquidated?? “Kansas law generally provides that prejudgment interest is allowable on liquidated claims. A claim is 4 liquidated when both the amount due and the date due are fixed and certain or ascertainable by mathematical computation.” v. Undisputed because funds had been received from the owner?? Hence liquidated. vi. “A question about the amount of a setoff or counterclaim does not change the liquidated nature of the damages for breach of contract.” And “Raising counterclaims does not erase the fact that Lindsey did the work and was entitled to payment.” vii. Possible exception possible for construction defect counterclaim, but not delay damages or claims for incomplete work completion costs. f. Highlights from Judge Atcheson concurrence. i. Warns: “The real problem here lies in the idea that the doctrine of impliedin-fact contracts ought to be deployed when the parties actually have engaged in the readily identifiable steps necessary to form a traditional contract or when the parties are presumptively sophisticated [*48] business entities undertaking a multifaceted commercial deal. Courts may find implied-in-fact contracts when the overall circumstances indicate the parties intended to be bound to certain mutual obligations but have not formally exchanged discrete offers or acceptances. The terms of their contractual relationship must be discerned from their general communications and the pattern of their interactions. … Judicial recognition of implied-in-fact contracts necessarily entails an amorphous exercise requiring interpretation of parties' inexact signals to arrive at sufficiently definite rights and duties to [*49] bind those parties to a legally enforceable agreement.” ii. “To be sure, implied contracts serve an entirely beneficial purpose in sorting out legal relationships between parties taking a casual or unsophisticated approach to their mutual transactions and in resolving their disputes about rights and duties arising from comparatively simple transactions. But the convention ought to be cautiously invoked to find enforceable agreements governing complex transactions when the parties 5 have engaged in recognizable steps toward making a formal contract. If those steps have not yielded an identifiable contract, then the parties likely have not entered into [*50] an enforceable agreement.” iii. “With intricate commercial transactions, a court attempting to imply in fact a contract from the parties' conduct will, more likely than not, wind up either creating at least some material terms that the parties never mutually accepted or omitting entirely what reasonably would be considered essential terms for a formal contract. Either way, the court would flout accepted legal principles in the guise of "implying" a contract.” 2. Hilton Plaster Co. v. Knoblauch, unpublished, 380 P.3d 720 (Kan. Ct. App. 2016). A per curium opinion deferring to the factual findings of trial court concerning issues of: a. Creation of a subcontractor relationship as opposed to separate contracts in a multi-‘prime’ project. b. Deference to the factual findings of the trial court. 3. Midwest Crane & Rigging, LLC v. Kan. Corp. Comm'n, 2016 Kan. App. Unpub. LEXIS 649, at *1 (Kan. Ct. App. Aug. 5, 2016). “Under provisions of the Unified Carrier Registration Act (UCR) and agreement, 49 U.S.C. § 14504a (2012), motor carriers, motor private carriers, and freight forwarders operating in interstate or international commerce must pay an annual registration fee (UCR fee) to their "'base-State'" in an amount calculated on the size of their "'commercial motor vehicle'" fleet. 49 U.S.C. § 14504a(a)(1), (2), (f) (2012). The UCR was implemented by an interstate agreement under which individual states have the option of participating in the collection and sharing of UCR fee revenues. 49 U.S.C. § 14504a(e), (g), (h). Kansas is among the states that have elected to participate in the UCR. See K.S.A. 2015 Supp. 66-1,115; K.S.A. 2015 Supp. 66-1,139a; K.A.R. 82-4-30a(c) (2015 Supp.) ("An interstate regulated motor carrier shall not operate in interstate commerce over the highways of this state unless the carrier is registered in the carrier's base state pursuant to 49 U.S.C. 14504a(a)(2) [of the UCR].").” 6 4. Midwest Crane & Rigging, LLC v. Schneider, 2016 Kan. App. Unpub., 369 P.3d 340 (Kan. Ct. App. 2016). A per curium opinion arising from trial court’s grant of motion to dismiss for res judicata. “After suing Emcon, Inc. (Emcon), for breach of contract and only recovering under the theory of unjust enrichment, Midwest Crane and Rigging, LLC (Midwest), filed this suit seeking to recover from Carlos Gallegos and Frank Schneider (Defendants), the two field employees who signed the contested equipment rental agreements on behalf of Emcon. Midwest's petition alleged that Defendants committed negligent and intentional misrepresentation resulting in damage to Midwest. In response to the petition, Defendants filed a motion to dismiss arguing that the doctrine of res judicata prohibited Midwest from relitigating claims that had already been decided. The district court granted Defendants' motion to dismiss. Midwest appeals. Finding that the doctrine of res judicata bars Midwest's claims and finding that the doctrine of judicial estoppel is inapplicable because Defendants claims were not inconsistent with Emcon's claims, we [*2] affirm. In addition, we deny Defendants request for appellate attorney fees and costs.” 5. United States ex rel. W. Bldg. Grp. v. Travelers Cas. & Sur. Co. of Am., No. 16-1407JTM, 2017 U.S. Dist. LEXIS 7069, at *4-6 (D. Kan. Jan. 18, 2017). In the process of compelling arbitration and staying the trial court proceedings, “Plaintiff asks the court to place restrictions on the arbitration.” a. “Plaintiff expresses concern that "Defendants intend . . . to stay the arbitration proceeding until [AWAP] can litigate its pass-through claims against the Corps of Engineers." According to plaintiff, such an arbitration stay would delay resolution of plaintiff's Miller Act claims in violation of the Tenth Circuit's opinion in Fanderlik-Locke Co. v. United States, 285 F.2d 939, 942 (10th Cir. 1960). Plaintiff asserts the court must "give effect" to the parties' subcontract agreement that "the arbitrator would be limited to applying the law of the state of Kansas and decisions [*5] of the District of Kansas and the Tenth Circuit construing the Miller Act." Specifically, plaintiff asks the court to "prohibit the arbitrator from issuing a stay of the arbitration proceedings contrary to the established law of this jurisdiction" and to prohibit defendants from asking the arbitrator to stay 7 plaintiff's Miller Act claims. … The court respectfully declines plaintiff's request. First, plaintiff has cited no case, and the court knows of none, in which a court has compelled arbitration and placed restrictions of this type on the arbitration proceeding. Binding precedent suggests that the court has no such authority. The Supreme Court has directed that "'procedural questions which grow out of the dispute and bear on its final disposition' are presumptively not for the judge, but for an arbitrator, to decide." And the Tenth Circuit has directed that "'arbitration is a matter of contract' in which courts have a limited role. In that limited role, courts do not have authority to decide questions explicitly addressed by the arbitration agreement." "In this circuit, the arbitration panel is entitled to extreme deference in setting the bounds of its authority [*6] to decide an issue submitted to arbitration." Thus, although plaintiff may well be correct that under FanderlikLocke the arbitration of plaintiff's Miller Act claim cannot be stayed pending a resolution of AWAP's pass-through claims against the COE, the question is for the arbitrator to decide, not for this court to dictate. … Second, plaintiff's request presupposes a potential future development—i.e., that defendants will move the arbitrator to stay the arbitration—which may or may not come to fruition. The court may not issue advisory opinions about speculative future events. If and when defendants make such a motion, plaintiff may assert their substantive arguments that Fanderlik-Locke prohibits such a stay, and the arbitrator will rule under the applicable law. Plaintiff has not cited a case suggesting that the court may anticipate and decide an issue which only hypothetically may arise during arbitration.” 8 Recent Developments in Eminent Domain Law Christopher F. Burger* Creegan v. State, 2017 Kan. LEXIS 115, at *1 (Mar. 24, 2017). A unanimous decision written by Justice Beier (Biles, J., not participating, Michael J. Malone, Senior Judge assigned) arising from KDOT’s voluntary acquisition of tracts within a subdivision that were ultimately used for non-residential purposes in violation of the community’s restrictive covenants. Some of the nonacquired lot owners brought a lawsuit asserting inverse condemnation. Syllabus: 1. The violation of a restrictive covenant running with subdivision land by a party with the power of eminent domain is a compensable taking of a private property interest in real estate possessed by an owner of a dominant subdivision parcel, and that owner may sue in inverse condemnation. 2. A Fifth Amendment taking occurs when a party with the power of eminent domain deprives the owner of a property right. In order for the taking of an intangible property right to be compensable in Kansas, it is not necessary that the property be physically taken or for the property to be damaged within the meaning of K.S.A. 26-513(a). Quotes of interest: “We see these arguments as logically flawed and overstated. For example, the existence of private property interests do not prevent the exercise of eminent domain; they merely require the payment of just compensation when the private property interests are extinguished for public use. But we need not further address these policy arguments today. It is sufficient to say that the ultimate arbiters of public policy wisdom are the citizens whose Fifth Amendment rights are vindicated by our ruling. If those arbiters decide to change the public policy animating the amendment, they are free to do so.” Id. at 34. * Adjunct Professor of Law at University of Kansas School of Law and partner with Stevens & Brand LLP in Lawrence Kansas. This does not create an attorney-client relationship and no legal advice is being given. Any opinions are mine alone. 9 “But we are not limited to the "damage" language of EDPA or Kirkpatrick's interpretive gloss on it. Rather, we must examine the character of restrictive covenants in Kansas and the rights they produce and protect for owners of the land with which they run. We also are not concerned with whether KDOT's actions constitute a permissible taking under EDPA. The question is whether there has been a taking requiring just compensation under the federal Constitution. Regardless of what types [*19] of takings the legislature has authorized under EDPA, we are concerned with whether the plaintiffs' Fifth Amendment right to just compensation is being infringed.” Slip op at 18-19. “And a hasty review of our opinion in Kirkpatrick might lead to a conclusion that eminent domain applies only to real property interests….” Slip op at 19. “EDPA, no matter its virtues, cannot be the be-all and end-all on the substance of eminent domain and inverse condemnation law in Kansas. It may expand upon but cannot constrict any rights Kansans are guaranteed by the Fifth Amendment. No matter how this court may interpret or construe the statutory language, the constitutional provision trumps.” Slip op at 18. “As discussed below in more detail, both parties and the members of the Court of Appeals panel have mistakenly concentrated on the potential applicability of EDPA's language about damage to plaintiffs' subdivision parcels to the unfortunate exclusion of a more traditional "taking" analysis. This approach has led to confusion on the question actually before us. In fact, we are far less concerned with whether there was physical damage to the parcels owned by plaintiffs than with whether their right to a certain amount of legal control over use of the parcels owned by KDOT was vaporized. This right, possessed by plaintiffs as a function of the restrictive covenant [*18] governing all subdivision parcels, was one of the "sticks" in the valuable "bundles of sticks" they paid for when they acquired their land.” Slip op at 17-18. 10 “The bottom line is that it matters not whether the right held by plaintiffs under the restrictive covenant in this case is further identified as a real property interest or a contract right. For purposes of eminent domain—and, by extension, inverse condemnation—each is "property" requiring just compensation under the Fifth Amendment if taken by the State.” Slip op at 20. “The first component is intended to compensate plaintiffs for any qualifying damage caused to their parcels by the nonconforming use. In order to recover, plaintiffs' proof will have to meet the requirements of EDPA, as interpreted in Kirkpatrick. See K.S.A. 26-513(a); Kirkpatrick, 289 Kan. at 569 ("damage must be substantial and must be the planned or inevitable result of government action undertaken for public benefit"). The parties have disagreed during this appeal on whether plaintiffs can muster such proof or have already failed when called upon to come forward with it. The record does not definitively settle this question for us, and we [*32] leave it to our able district court colleague to sort out this disagreement on remand. The second component should compensate plaintiffs for the taking of their rights to control the use of KDOT's parcels under the restrictive covenant. KDOT admits those rights were effectively extinguished by its nonconforming use, which, we have established, was a taking of one "stick" in each plaintiff's "bundle of sticks." The value of each plaintiff's right of control under the covenant has nothing to do with the desirability or lack of desirability of the particular public use; it is the value of the right of legal control involuntarily forfeited. It is equal to the difference between the fair market value of the dominant estate with the restrictive covenant intact and the fair market value of the dominant estate with the restrictive covenant taken. See K.S.A. 26-513(c). "If only a part of a tract of land or interest is taken, the compensation and measure of damages is the difference between the fair market value of the entire property or interest immediately before the taking, and the value of that portion of the tract or interest remaining immediately after the taking." K.S.A. 26-513(c). 11 This will account for removal of the [*33] restrictive covenant "stick" from each plaintiff's "bundle of sticks." See Annot. Eminent Domain, 4 A.L.R.3d 1137 ("Once the theoretical right to compensation for the loss of a negative easement is recognized, the problems of the action are substantially the same as in any other eminent domain proceeding. Practically, the property owner must establish the value of the right taken, at the time of the taking, by competent lay or expert testimony. . . . [C]ounsel for the condemning authority may have some hope of escaping substantial liability by attacking the proposed proof of value and urging that at most nominal damages should be allowed.").” Slip op at 31-33. “The Kansas Supreme Court defends the Bill of Rights, then the unthinkable happens…” A. The Court contended that “Both the Court of Appeals majority and Judge Atcheson were led astray by the plaintiffs' and other jurisdictions' misdirected focus on whether a restrictive covenant gives rise to a real property interest or merely a contract right,” slip op at 19, in part due to “hasty review of our opinion in Kirkpatrick.” Id.at 26. But that was irrelevant since the Court had noted in a stand-alone paragraph that “Each side is minimally helpful.” Id. at 17. B. Sufficiency of the Eminent Domain Procedure Act?? a. The Eminent Domain Procedure Act is focused “on only real property and interests tied to real property” and hence narrower than the Fifth Amendment. Slip op at 7. But is also broader in that it makes compensable “damage to real estate or an interest in it.” Id. Its language is NOT the Court’s primary analytical focus because the Court addressed “more traditional ‘taking’ analysis.” Id. At 12-13 b. “But we are not limited to the "damage" language of EDPA or Kirkpatrick's interpretive gloss on it. Rather, we must examine the character of restrictive covenants in Kansas and the rights they produce and protect for owners of the land with which they run. We also are not concerned with whether KDOT's actions constitute a permissible taking under EDPA. The question is whether there has been a taking requiring just compensation under the federal Constitution. Regardless of what types [*19] of takings the legislature has 12 authorized under EDPA, we are concerned with whether the plaintiffs' Fifth Amendment right to just compensation is being infringed.” Creegan v. State, 2017 Kan. LEXIS 115, at *18-19 (Mar. 24, 2017) c. “EDPA, no matter its virtues, cannot be the be-all and end-all on the substance of eminent domain and inverse condemnation law in Kansas. It may expand upon but cannot constrict any rights Kansans are guaranteed by the Fifth Amendment. No matter how this court may interpret or construe the statutory language, the constitutional provision trumps.” Slip op at 18. Is this another way of saying that the Act that gives rise to the authorized procedure to enforce eminent domain rights is unconstitutional to the extent it prohibits the taking of rights under a restrictive covenant? C. Breadth of “property.” Vaporized “…their right to a certain amount of legal control over use of the parcels.” Slip op at 12. “As discussed below in more detail, both parties and the members of the Court of Appeals panel have mistakenly concentrated on the potential applicability of EDPA's language about damage to plaintiffs' subdivision parcels to the unfortunate exclusion of a more traditional "taking" analysis. This approach has led to confusion on the question actually before us. In fact, we are far less concerned with whether there was physical damage to the parcels owned by plaintiffs than with whether their right to a certain amount of legal control over use of the parcels owned by KDOT was vaporized. This right, possessed by plaintiffs as a function of the restrictive covenant [*18] governing all subdivision parcels, was one of the "sticks" in the valuable "bundles of sticks" they paid for when they acquired their land.” Creegan v. State, 2017 Kan. LEXIS 115, at *17-18 (Mar. 24, 2017). D. Restrictive Covenants enforceability by injunction? The opinion recognizes the enforceability of restrictive covenants by injunction, slip op at 14-15, and discusses that “Although Kansas does not have a case directly on point, the general rule is that a party also can recover monetary damages for breach of a restrictive covenant.” Id. The opinion does not address how a lack of a legal remedy is a requirement before an injunction can be granted. E. A contract is property, but is every contract compensable? See slip op at 17. 13 “It has long been the rule in this state that the profits from a business conducted on a particular piece of property are not compensable losses in a condemnation action. This is based on the recognition that "'[i]f the owner of property uses it himself for commercial purposes, the amount of his profits from the business conducted upon the property depends so much upon the capital [***36] employed and the fortune, skill and good management with which the business is conducted, that it furnishes no test of the value of the property. It is, accordingly, [**220] well settled that evidence of the profits of a business conducted upon land taken for the public use is not admissible in proceedings for the determination of the compensation which the owner of the land shall receive.'" City of Bonner Springs v. Coleman, 206 Kan. 689, 694, 481 P.2d 950 (1971) (quoting 5 Nichols on Eminent Domain, § 19.3(1), p. 19-48).” City of Wichita v. Denton, 296 Kan. 244, 262, 294 P.3d 207, 219-20 (2013) F. Do restrictive covenants now constitute “an interest born of real property ownership”? Id. at 19. An interest in controlling the use of parcels? “Plaintiffs' have been deprived of all economic value of their right of control under the covenant; their property interests, in this case, real property interests, have been taken.” Id. at 30. G. Conflict between Creegan v. State, 2017 Kan. LEXIS 115, at *31-33 (Mar. 24, 2017), and Kan. City Power & Light Co. v. Strong, 302 Kan. 712, 725-26, 356 P.3d 1064, 1073-74 (2015)?? K.S.A. 26-513(c), applicable to partial takings such as occur with utility easements, plainly creates a simple compensation formula with two variables: (1) the fair market value of the property pre-taking, less; (2) the value of the remainder. The statute then defines [*726] and describes the legally necessary evidence to prove up each variable. The first variable—the [***27] pre-taking "fair market value"—must be proved "by use of the comparable sales, cost or capitalization of income appraisal methods or any combination of such methods." K.S.A. 26-513(e). 14 [**1074] It is significant that the second variable in subsection (c) does not use the term "fair market value" but rather speaks simply of the value of the remainder. We will not presume that this word choice was accidental. In fact, HN6 we presume the legislature deliberately chose the words used and intended those choices to convey a real meaning. See Hays v. Ruther, 298 Kan. 402, 406, 313 P.3d 782 (2013). Here, HN7 the words chosen by the legislature subject the first variable to K.S.A. 26-513(e) while leaving the second variable subject to adjustments pursuant to K.S.A. 26-513(d). There, the legislature defines and describes a nonexclusive list of factors which, if shown, can prove the reduced value of the post-taking remainder. The listed factors include the remaining appearance, productivity, convenience, use, view, and cohesion (i.e., whether the remainder has been severed). An additional recognized factor—though not included in the legislature's nonexclusive list—is any evidence tending to show what a hypothetical buyer would consider in determining a purchase price for the property. See City of Mission Hills v. Sexton, 284 Kan. 414, 423, 160 P.3d 812 (2007) (quoting City of Wichita v. Eisenring, 269 Kan. 767, 773, 7 P.3d 1248 [2000]) ("'[A]ny competent evidence bearing [***28] upon market value generally is admissible including those factors that a hypothetical buyer and seller would consider in setting a purchase price for the property.'"). Water Dist. No. 1 v. Prairie Ctr. Dev., L.L.C., 304 Kan. 603, 604, 375 P.3d 304, 307 (2016). A majority decision written by Justice Luckert, with a concurrence from Justice Stegall, blessing a condemning authority’s use of careful language in its petition to preclude an impact on an otherwise interested party and thus exclude them from the proceedings. Syllabus 1. In Kansas, the Eminent Domain Procedure Act provides the only avenue through which the government can exercise its eminent domain power. A statute conferring the 15 right to exercise the power of eminent domain is to be strictly construed in light of the objectives and the purposes sought to be attained by its enactment. 2. Provisions of the Eminent Domain Procedure Act control an eminent domain proceeding to the extent the provisions address an issue. In an appeal from an eminent domain award, the code of civil procedure applies. 3. A government entity filing a petition under the Eminent Domain Procedure Act must name and provide notice to all owners of an interest in land the entity seeks to take, including lienholders and anyone in possession of the property. 4. Eminent domain proceedings, which are intended to be quickly resolved, only concern (1) the authority to take and (2) just compensation for the taking. Litigation of collateral issues is relegated to other civil actions. 5. There is no provision in the Eminent Domain Procedure Act precluding a landowner from raising statutory defect arguments [***2] in the condemnation proceeding. 6. The language in an eminent domain petition and the corresponding appraiser's report determines the extent of the property rights taken. Generally, no more property of a private individual, and no greater interest therein, can be condemned and set apart for public use than is absolutely necessary. A condemning body has no authority to appropriate private property for only a contemplated or speculative use in the future. 7. When interpreting a written document, the intent of the parties controls and is best evinced by the document's unambiguous language. A document's meaning should be gleaned from the document as a whole rather than through the analysis of a single or isolated provision. 8. Inverse condemnation is an action initiated by the landowner and is available when private property has been taken for public use without formal condemnation proceedings and where it appears there is no intention or willingness of the taker to bring the action. 16 9. The owner of an easement is entitled to compensation when the easement is taken in eminent domain. 10. In an eminent domain proceeding, parol evidence is not admissible to limit the extent of a taking. Quotes of Interest “In Kansas, the EDPA provides the only avenue through which the government can exercise its eminent domain power. … Importantly, "'[a] statute which confers the right to exercise the power of eminent domain is to be strictly construed in light of the objectives and the purposes sought to be attained by its enactment.'” Id. at 605, 308. “4.1. An entity must comply with the EDPA when taking an easement.” Id. at 616, 304. “The core of the Bonhams' appeal is their claim that WaterOne cannot realistically hope to construct a water line without interfering with Stonecrest Road. That contention might have seemed like a fair possibility when the district court considered the parties' arguments; it might even prove (or by the time it reached this court have proven) true. If so, WaterOne will have exceeded its legal authority; because of such possibilities, we urge condemning authorities to be scrupulously fair in the exercise of eminent [*614] domain, always cognizant of the [***19] responsibility that comes with a power so great. … Nevertheless, we are constrained in an eminent domain proceeding by the language the condemning authority uses, its condemnation plans, and the limits of the EDPA. "'A condemnation proceeding instituted under K.S.A. 26-501 et seq., . . . does not provide a forum for litigation over the right to exercise eminent domain or to determine the extent of said right. . . . The right . . . to determine other issues such as the necessity and extent of the taking can only be litigated in an individual civil action.'" (Emphasis added.) Miller, 283 Kan. at 114. We reiterate, the express language in WaterOne's petition—which controls in the very narrow proceedings at issue here—did not condemn the Bonhams' easement.” Id. at 613-14, 312. “Notwithstanding WaterOne's intentions, the Bonhams are not, as we have alluded, left without a remedy just because their claims were improper in this case: Should WaterOne interfere with the 17 Bonhams' easement (or if it has done so), the Bonhams could file a separate action for inverse condemnation. 6 Nichols on Eminent Domain § 26A.03[1]. Indeed, "[i]nverse condemnation is an action initiated by the landowner and is available when private property has been taken for public use without formal condemnation proceedings and where it appears there is no intention or willingness of the taker to bring the action." City of Wichita v. Meyer, 262 Kan. 534, 548, 939 P.2d 926 (1997). It seems WaterOne has no intention to file a formal condemnation proceeding as to the Bonhams' easement. So if WaterOne does take or damage the easement, the Bonhams have viable legal options, which they recognized in the hearing before the district court.” Id. at 615, 313. “From the record here, it does not appear that Prairie Center Development or WaterOne filed an appeal under K.S.A. 2015 Supp. 26-508 to challenge the amount of compensation awarded. … What makes this case unique is that the Bonhams—who were never parties to WaterOne's action—filed an appeal.” Id. at 608,309. “Thus, under City of Wichita, the district court in this case had jurisdiction over the proceedings to narrowly consider the merit of the Bonhams' statutory-defect argument. See also Dotson v. State Highway Commission, 198 Kan. 671, 675-76, 426 P.2d 138 (1967) (permitting unnamed owner to join in appeal: "[A]ny appeal by a landowner, lienholder or interested party brings to the district court for determination in a single action the sufficiency of the award for all interests in the tract or parcel of land under condemnation."). Id. at 610,310. “Without question, notice is a fundamental component and policy objective of the Kansas Eminent Domain Procedure Act (EDPA). See K.S.A. 2015 Supp. 26-503. However, the reality our decision today manifests without articulating—a state of affairs deserving explicit acknowledgment—is that the EDPA grants condemning authorities carte blanche to consciously limit the scope of the required notice through [***29] drafting gamesmanship. If complete and widespread notice is indeed a fundamental policy objective of the legislature, as it appears to be, this case simply illustrates that the statutory language chosen by the legislature fails to implement that policy in an airtight manner.” Water Dist. No. 1 v. Prairie Ctr. Dev., L.L.C., 304 Kan. 603, 619, 375 P.3d 304, 315 (2016) (Stegall concurring) 18 “What the court plans to do now will make you FURIOUS” A. Which code applies to a Chapter 26 proceeding? “Alternatively, the code of civil procedure gives the district court discretion to permit intervention if the Bonhams presented "a claim . . . that share[d] with the main action a common question of law or fact." K.S.A. 2015 Supp. 60-224(b)(1)(B). WaterOne notes that the Bonhams characterized their motion specifically as a motion to void under City of Wichita rather than a motion to intervene. But implicit in the motion to void was an [**311] intervention question—whether the Bonhams had an ownership interest sufficient to give them a place in this action. And typically intervention is subject to [*611] liberal construction in favor of intervention. Smith v. Russell, 274 Kan. 1076, 1083, 58 P.3d 698 (2002). In this procedurally unique case, we do not find that the district court [***14] wholly lacked jurisdiction to narrowly consider the Bonhams' claims.” Water Dist. No. 1 v. Prairie Ctr. Dev., L.L.C., 304 Kan. 603, 61011, 375 P.3d 304, 310-11 (2016). “In Kansas, provisions of the EDPA control the proceedings to the extent the provisions address an issue. In an appeal from an eminent domain award, the code of civil procedure applies.” Water Dist. No. 1 v. Prairie Ctr. Dev., L.L.C., 304 Kan. 603, 606, 375 P.3d 304, 308 (2016) B. Resort to separate lawsuit, or not? Compare inverse condemnation remedy with, “This court in City of Wichita reasoned that even though REM was not initially a party to the proceedings, as a landowner with rights at stake, it should not have to risk foregoing an appeal of an award by filing a separate action to challenge the validity of the petition. 262 Kan. at 542; 6 Nichols on Eminent Domain § 26A.03[3] (3d ed. 2008) ("[A] description of property to be taken that does not meet the strict pleading requirements [***13] of this allegation will render the entire condemnation proceeding void.").” Water Dist. No. 1 v. Prairie Ctr. Dev., L.L.C., 304 Kan. 603, 610, 375 P.3d 304, 310 (2016). 19 Pener v. King, 2017 Kan. LEXIS 117, at *1-2 (Mar. 24, 2017). Unanimous opinion written by Justice Biles (Rosen, J, not participating, Michael J. Malone, Senior Judge, assigned),affirming the refusal to include the replacement cost for destroyed fencing in the amount of the award. Syllabus 1. Under the Eminent Domain Procedure Act, K.S.A. 26-501 et seq., in a partial taking case there are only two issues: (a) the value of the entire property or interest immediately before the taking; and (b) the value of that portion of the land or interest remaining immediately after the taking. 2. In ascertaining the amount of compensation and damage in an eminent domain or condemnation proceeding, the cost of new fences or loss of fences and the cost of replacing them with fences of like quality are not to be considered as separate items of damages but are to be considered only as they affect the total compensation and damage. 3. In a condemnation proceeding, the award will not be disturbed on appeal from the district court as long as it is supported by substantial evidence. 4. The verdict in a condemnation proceeding must be within the range of the opinion testimony admitted at trial. 5. In a condemnation proceeding, the landowner's attorney fees are statutorily provided for in two instances. One occurs when the condemning authority abandons the proceedings after a court-appointed appraiser award. The other occurs when the [*2] condemning authority appeals a court-appointed appraiser award to the district court and the jury renders a verdict for the landowner that is greater than the appraiser award. Quotes of Interest “Pener presented evidence of the fence's replacement value, including what he characterized as KDOT's admission as to that amount. KDOT's appraiser testified the loss of the fence diminished the parcel's post-taking value by only $11,000. When the district court adopted KDOT's view, it 20 acted consistent with K.S.A. 26-513(d)'s admonition that replacement cost be considered to the extent it affected value rather than as a separate item of damages.” Pener v. King, 391 P.3d 27 (Kan. 2017). “In condemnation proceedings, the landowner's attorney fees are statutorily provided for in only two instances. One occurs when the condemning authority abandons the proceedings after a court-appointed appraiser award. See K.S.A. 2016 Supp. 26-507(b). The other occurs when the condemning authority appeals a court-appointed appraiser award to the district court and the jury renders a verdict for the landowner that is greater than the appraiser award. See K.S.A. 26-509 ("Whenever the plaintiff condemner shall appeal the award of court appointed appraisers, and the jury renders a verdict for the landowners in an amount greater than said appraisers' award, the court may allow as court costs an amount to be paid to the landowner's attorney as attorney fees.").” Doug Garber Constr., Inc. v. King, 388 P.3d 78, 80 (Kan. 2017). A unanimous opinion written by Justice Stegall (Biles, J., not participating. David Ricke, District Judge, assigned), affirming the trial court’s exclusion of certain valuation evidence due to the project being viewed as one. Syllabus 1. A district court has broad discretion to admit or reject evidence in an eminent domain proceeding, including evidence of fair market value. 2. The enhancement or depression of real property value due to the project for which condemnation is sought is excluded in determining fair market value. 3. In an eminent domain action, a property owner may testify about the fair market value of the property based on his or her familiarity with the property, but the opinion will be excluded if based on legally improper considerations. 21 Quotes of Interest “A district court has broad discretion [**9] to admit or reject evidence—including evidence of fair market value—in an eminent domain proceeding. See Preisser, 295 Kan. at 363; City of Wichita v. Eisenring, 269 Kan. 767, 773, 7 P.3d 1248 (2000). Evidence in an eminent domain proceeding consists mostly of witness opinions because "the valuation of real estate is largely a subjective matter and cannot be definitely determined by the application of any exact principle of science." Eisenring, 269 Kan. at 774. A district court is responsible for defining the extent of compensable rights, "and if it is established that value testimony was based on noncompensable items or the credibility of the testimony is otherwise destroyed the testimony should be stricken in response to a proper motion." Morgan v. City of Overland Park, 207 Kan. 188, 190, 483 P.2d 1079 (1971)” Id. at 82. “The Project Influence Rule excludes certain factors from the fair market value calculation in an eminent domain proceeding. Generally stated, the "enhancement or depressing of value due to anticipated improvements by the project for which condemnation is sought is excluded in determining fair market value." Hudson, 246 Kan. at 406. The rule can fairly be understood as an interpretation of the plain meaning of—and legislative intent inherent in—K.S.A. 26-513(b), that the fair market value of the property must be measured "at the time of the taking." See Kansas City Power & Light Co. v. Strong, 302 Kan. 712, 725, 356 P.3d 1064 (2015) ("Where [statutory] language is plain and unambiguous, it is determinative of legislative intent."). In other words, the statute dictates that fair market value must be calculated before the project improvements for which condemnation is sought are made.” Id. at 82. “Second, Garber argues the district court erred in excluding Ms. Garber's testimony. HN10 In an eminent domain action, a property owner who does not qualify as an expert may testify about the fair market value of the property based on familiarity with his or her property and values in the neighborhood. In re Eminent Domain, 299 Kan. at 50. But, a property owner's opinion about fair market value will be excluded if based on legally improper considerations, such as an unrecognized appraisal method. 299 Kan. at 47-48.” Id. at 84. “Sneaky owners are doing this to save money. Number 4 will amaze you!” 22 A. Just because I want to write “Garber Golden Gateway.” “Moreover, Ms. Garber estimated the "Garber Golden Gateway" would generate over $22 million in business income in one year by charging a $2 gate fee to 31,100 cars passing through per day. Subtracting operating expenses and applying an 8% capitalization rate, Ms. Garber concluded the Property was worth a total of $347 million in future profits.” Nauheim v. City of Topeka, 52 Kan. App. 2d 969, 970, 381 P.3d 508, 509 (2016). Opinion by Jeffrey E. Goering. Syllabus 1. Where reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment is inappropriate. 2. When a statute is plain and unambiguous, the court must give effect to its express language rather than determine what the law should or should not be. 3. A "displaced person" as that term is used in K.S.A. 2015 Supp. 26-518(a) is any person who moves from real property as a direct result of the acquisition of such property by any condemning authority. 4. When the condemning authority conditions the acquisition of real property on the property being vacant at the time of closing, the forced relocation of tenants is a direct result of the acquisition of the property by the condemning authority. 5. Not every acquisition made by a condemning authority is covered by K.S.A. 2015 Supp. 26-518. In order to recover relocation benefits under K.S.A. 2015 Supp. 26-518(a), a displaced person must prove that the condemning authority either threatened or took affirmative action towards condemnation prior to the acquisition. 6. Under the facts of this case, when a condemning authority mentions the option of condemnation during negotiations for the acquisition [***2] of real property, whether 23 the condemning authority threatened condemnation action is a question of material fact which precludes the entry of summary judgment. Quotes of Interest “The uncontroverted facts in this case establish that the City's acquisition of the subject property was contingent upon the property being vacant at the time of closing. This condition precedent for the acquisition of the property was established by the City, not the [*974] landlord. Stated another way, the City was [**512] only a willing purchaser of the subject property if the property was vacant. There was no other reason for the landlord to force the tenants to relocate from the property other than the fact that it was a necessary prerequisite for the sale of the property to the City. To suggest that the tenants' relocation from the subject property under such circumstances was an indirect result of the City's acquisition of the property is to ignore entirely the reason why the landlord forced the tenants to relocate. In this myopic view, the landlord's decision to force the tenants to relocate was independent of, or at best tangentially [***10] related to, the City's acquisition of the property, which is contrary to the summary judgment record. There is no evidence in the summary judgment record to suggest that the landlord's forced relocation of the tenants was for reasons independent of the City's acquisition of the subject property.” Id. at 973-74, 511-12. “The statutory language defining a "displaced person" is straightforward and unambiguous. HN5 A "displaced person" is any person who moves from real property as a direct result of the acquisition of such property by the City. See 42 U.S.C. § 4601(6)(A)(i)(I) (2012). Here, the City conditioned the acquisition [**513] [***13] of the subject property on the property being vacant at the time of closing. The landlord forced the tenants to vacate the subject property in order to meet this condition. The property, having been vacated by the tenants, was then acquired by the City. As such, the landlord's decision to force the tenants to vacate the property was an event that was inseparably linked to the sale of the property to the City. The uncontroverted facts in this case establish that the tenants' forced [*976] relocation from the subject property was the direct result of the City's acquisition of that property—there was no other reason that the tenants were forced to relocate. The district court's holding to the contrary was in error. The tenants are 24 "displaced persons" as that term is defined in Uniform Relocation Assistance and Real Property Acquisition Policies Act and are therefore "displaced persons" as that term is used in K.S.A. 2015 Supp. 26-518(a).” Id. at 975-76, 512-13. “Although the tenants are "displaced persons," they are not entitled to relocation benefits pursuant to K.S.A. 2015 Supp. 26-518 unless the subject property was acquired by the City "through negotiation in advance of a condemnation [***14] action."” Id. at 976, 513. “In order for the tenants to establish that they are entitled to relocation benefits pursuant to K.S.A. 2015 Supp. 26-518, the tenants must prove that the City either threatened or took affirmative action towards condemnation.” Id. at 977, 514. Twin Valley Tel., Inc. v. State Corp. Comm'n of Kan., 376 P.3d 95 (Kan. Ct. App. 2016). Unpublished. “Per Curiam: Twin Valley Telephone, Inc., has appealed a ruling of the Kansas Corporation Commission rejecting the company's request for a significantly enhanced government subsidy to offset the cost of providing landline services to about 5,000 customers in the north central part of the state. Twin Valley has presented no legally persuasive argument the KCC erred. The KCC's order conforms to a legislative directive in K.S.A. 2015 Supp. 662008(e)(2) that state subsidies not be used to replace reductions in federal subsidies, and the decision does not constitutionally take Twin Valley's property without just compensation. We, therefore, affirm the agency action denying the requested subsidy.” “WHOA: look what we discovered about the law in this case” A. Loss of value enough? “Twin Valley has simply argued that anything less than the determined "reasonable rate" amounts to a constitutional taking demanding just compensation. But the law is otherwise. The Takings Clause does not require an exact match but a rate of return within a range of reasonableness. A rate of return must be so low—outside that reasonable range—as to be confiscatory to trigger constitutional relief. Twin Valley has not shown that a 4.64% rate of return for the relevant time 25 period to be unreasonable or confiscatory given the circumstances of this [*17] case and the administrative record.” Jenkins v. Chi. Pac. Corp., 366 P.3d 664 (Kan. Ct. App. 2016). Unpublished. “Kansas courts have "uniformly held that railroads do not own fee titles to narrow strips taken as right-of-way, regardless of whether they are taken by condemnation or right-of-way deed." Harvest Queen Mill & Elevator Co. v. Sanders, 189 Kan. 536, 542, 370 P.2d 419 (1962). However, "[w]here a railroad owns the land under its tracks in fee simple, the abandonment of its rail service does not affect its property right at all." 65 Am. Jur. 2d, Railroads § 54.” Bridgestone Retail Operations, LLC v. GFTLenexa, LLC, 366 P.3d 667 (Kan. Ct. App. 2016). Unpublished. “Per Curiam: This declaratory judgment action involves the interpretation of a contract. After the parties filed cross-motions for summary judgment, the district court granted GFTLenexa's motion and denied Bridgestone Retail Operations, LLC's motion. Bridgestone timely appeals, arguing that the district court misinterpreted the controlling provision of the contract. We agree and therefore reverse.” Stalnaker v. Cowley Cnty. Cmty. Coll., 369 P.3d 340 (Kan. Ct. App. 2016). Unpublished. “BUSER, J.: Larry L. Stalnaker filed this lawsuit for relocation payments after Cowley County Community College (College) took his farm shed through eminent domain. The trial court refused most of his requested relief because Stalnaker did not produce records of actual relocation expenses. Upon our interpretation of Kansas law and the relevant federal regulations, we conclude that because Stalnaker did produce estimates for relocation expenses from three commercial movers, he should obtain relief. Accordingly, we reverse and remand with directions.” 26