State ex rel. Missouri Highway & Transportation Commission v. Thomas

SIMON, Judge. Missouri Highway and Transportation Commission (Commission) appeals from a $50,000.00 jury verdict and resulting judgment in a condemnation action in which approximately 12.85 acres were condemned for the purpose of constructing a new highway. On appeal, Commission contends that the trial court erred in: (1) refusing its withdrawal instruction No. 1, which would have withdrawn from the jury’s consideration evidence of the change in the highest and best use of the subject property after the taking, due to the property being on a secondary road, in that such evidence was part of respondents’ damages and is non-compensable; and (2) refusing its withdrawal instruction No. 2, which would have withdrawn from the jury’s consideration evidence of change of the highest and best use of the subject property after the taking due to a circuity of travel, in that such evidence was part of respondents’ damages and is non-compensable. We affirm. At the outset, we note that neither of these points have been preserved for appellate review in that the text of these instructions has not been set forth in the argument portion of Commission’s brief as required by Rule 84.04(e). Maupin v. Bearden, 752 S.W.2d 403, 404 (Mo.App.1988). Further, it is clear from Commission’s argument and the legal file that Commission intended its first point on appeal to contest the failure to give withdrawal instruction No. 3 rather than No. 1. In our discretion, we will review for plain error reversing only if the failure to give the requested withdrawal instructions results in manifest injustice or a miscarriage of justice. Rule 84.13(c); Empiregas Inc. of Branson v. Tri-Lakes Propane Co., 764 S.W.2d 156, 157 (Mo.App.1989). As has been aptly stated by our brethren of the Western District: The giving of a withdrawal instruction rests within the sound discretion of the trial court and absent an abuse of such discretion, refusal to give a withdrawal [405] instruction constitutes no basis for complaint. Helming v. Adams, 509 S.W.2d 159, 169 (Mo.App.1974). Ordinarily, it is not error to refuse a withdrawal instruction. Norton v. Johnson, 359 Mo. 1214, 226 S.W.2d 689, 710 (1950). Parker v. Pine, 617 S.W.2d 536, 542-3[21] (Mo.App.1981). Further, “[i]n condemnation cases errors in admission or exclusion of evidence will not result in reversal unless there is substantial and glaring injustice.” State ex rel. State Highway Commission v. Merkel, 684 S.W.2d 440, 441[1-4] (Mo.App.1984). The basis of Commission’s argument is that evidence was presented concerning respondents’ “access problems” to the new highway. A review of the record reveals that Commission’s requested withdrawal instruction, i.e., Instruction No. 8, was given and instructed the jury not to consider the issues and evidence of business profits and loss of traffic. The evidence concerning “secondary road” and “circuity of travel" was adequately encompassed by withdrawal Instruction No. 8. We conclude that the failure to give Commission’s requested withdrawal instructions did not result in manifest injustice or a miscarriage of justice. Judgment affirmed. DOWD, C.J., and HAMILTON, J., concur.