Section 23 Prehearing Discovery

• Library: Condemnation Practice 2009

Until several years ago, there was no authority permitting discovery before the condemnation hearing. Missouri courts had repeatedly held that the discovery rules contained in the Missouri Rules of Civil Procedure did not apply to the initial acquisition phase of the condemnation process. State ex rel. Wash. Univ. Med. Ctr. Redevelopment Corp. v. Gaertner, 626 S.W.2d 373 (Mo. banc 1982); State ex rel. Mo. Highway & Transp. Comm’n v. Anderson, 735 S.W.2d 350 (Mo. banc 1987); State ex rel. Mo. Highway & Transp. Comm’n v. Bush, 911 S.W.2d 690 (Mo. App. E.D. 1995).

The rationale for the rule was based on the distinction between the purpose of the initial acquisition phase, in which discovery was not permitted, and the subsequent damage phase, in which discovery was permitted. The Supreme Court explained the policy behind the rule as follows:

This two-step process has an extremely important function. It guarantees to the public early commencement of the project while preserving to the individual landowners the right at a later date to extensively and thoroughly litigate all issues relating to damages for the taking. If the purpose of the condemnation is to build a road across Missouri from St. Louis to Kansas City, a single objecting landowner has no right to delay the commencement of the project for months or years by interrogatories, depositions, discovery or dilatory practices. The two-step process does not contemplate extensive litigation at the first stage which is prior to the order of condemnation.

Anderson, 735 S.W.2d at 352.

But the door has been opened to limited prehearing discovery on the question of the condemner’s right to condemn. In State ex rel. Rantz v. Sweeney, 901 S.W.2d 289 (Mo. App. S.D. 1995), landowners sought a writ of prohibition to prevent a circuit judge from quashing notices to take depositions in a condemnation action brought by the Missouri Highway...