322 S.W.3d 610 (Mo.App. E.D. 2010), ED 94471, St. Louis County v. Berck

Docket NºED 94471.
Citation322 S.W.3d 610
Opinion JudgeKURT S. ODENWALD, Presiding Judge.
Party NameST. LOUIS COUNTY, Missouri, Appellant, v. Richard F. BERCK, and All American Painting, L.L.C., Respondents.
AttorneyPaul J. Puricelli, Julie L. Brothers, Stone, Leyton & Gershman, St. Louis, MO, for Appellants. Robert Denlow, Paul G. Henry, Denlow and Henry, St. Louis, MO, for Respondent.
Judge PanelROBERT G. DOWD, JR. and NANNETTE A. BAKER, JJ., Concur.
Case DateOctober 12, 2010
CourtCourt of Appeals of Missouri

Page 610

322 S.W.3d 610 (Mo.App. E.D. 2010)

ST. LOUIS COUNTY, Missouri, Appellant,

v.

Richard F. BERCK, and All American Painting, L.L.C., Respondents.

No. ED 94471.

Court of Appeals of Missouri, Eastern District, Fourth Division.

October 12, 2010

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Paul J. Puricelli, Julie L. Brothers, Stone, Leyton & Gershman, St. Louis, MO, for Appellants.

Robert Denlow, Paul G. Henry, Denlow and Henry, St. Louis, MO, for Respondent.

KURT S. ODENWALD, Presiding Judge.

Introduction

St. Louis County (County) appeals from the trial court's Judgment awarding interest in the amount of $40,438.36 to Richard F. Berck and All American Painting's (hereafter collectively referred to as Berck). The award of interest was made pursuant to Section 523.045, RSMo 20001 following County's termination of condemnation proceedings against Berck's property. County argues that the trial court erred in awarding Berck interest because, pursuant to Section 99.810.1(3) of the Real Property Tax Increment Allocation Redevelopment Act (TIF Act), the trial court lost jurisdiction to act when it did not acquire Berck's property within five years from the date County approved the redevelopment plan. County further argues that it did not abandon the condemnation action to trigger the application of Section 523.045, nor did Berck suffer a deprivation of property rights under Section 523.045. Because the trial court retained jurisdiction over the condemnation action after County filed its " Memorandum to Court Regarding Jurisdiction" requesting dismissal, and acted within its authority and discretion in awarding interest pursuant to Section 523.045, we affirm the trial court's judgment.

Factual Background

On July 13, 2004, the St. Louis County Council (the County Council) passed Ordinance Nos. 21,949 and 21,950 approving a Tax Increment Financing redevelopment plan and project known as Northpark. County filed a Petition in Condemnation to condemn several parcels within the Northpark redevelopment, including property owned by Berck at 9330 Irvington Avenue (the Single Property). On May 3, 2007,

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the court-appointed commissioners entered an award for the Single Property for $250,000 to be paid by County to Berck as damages resulting from County's taking. Both County and Berck filed exceptions to the award. County did not pay the commissioners' award to either Berck or the clerk of the court.

On December 10, 2009, County filed with the trial court a " Memorandum to Court Regarding Jurisdiction." In its memorandum, County asserted that the trial court lost subject matter jurisdiction over the case on July 13, 2009, because Section 99.810.1(3) provides that " no property for a redevelopment project shall be acquired by eminent domain later than five years from the adoption of the ordinance approving such redevelopment project." County referenced another trial court's decision to dismiss a condemnation proceeding for lack of jurisdiction under similar circumstances 2 and " respectfully submit[ted] that the Court is without jurisdiction in this cause."

In response, Berck argued in its Memorandum in Opposition to [County's] Motion to Dismiss that the trial court lacked authority to dismiss the condemnation petition under the controlling condemnation statutes, and that County's motion to dismiss should be treated as an abandonment of the condemnation. Berck simultaneously filed a motion for assessment of interest, arguing that County's motion to dismiss " has the effect of electing an abandonment pursuant to Rule 86.06." Berck requested an award of interest at the rate of six percent per annum on the amount of the commissioners' award from the date of the filing of the commissioners' report up to the date of the abandonment. On January 12, 2010, the trial court entered judgment sustaining Berck's Motion to Award Interest for abandonment. The trial court awarded $40,438.36 in interest, but then dismissed the case because " the Court has lost jurisdiction for any additional actions."

County filed its Notice of Appeal to contest the judgment awarding Berck interest on February 19, 2010. This appeal follows.

Points on Appeal

County raises two points on appeal. First, County argues that the trial court erred in awarding Berck interest because the trial court lost subject matter jurisdiction on July 19, 2009, pursuant to Section 99.810.1(3), when County did not acquire Berck's property within five years from the adoption of the ordinance approving the Northpark Redevelopment Plan. County argues the trial court was without jurisdiction to make a discretionary award of interest.

County presents three arguments in its second point on appeal. First, County alleges that the trial court erred in awarding Berck interest pursuant to Section 523.045 because County did not abandon the condemnation action, and therefore did not trigger the interest award provisions of Section 523.045. Concurrent with this argument, County argues Berck did not introduce any evidence of a deprivation of property rights, which is a necessary precondition to the trial court's exercise of its discretion to award interest. Finally, County also claims that the trial court did not enter a finding that Berck suffered a deprivation of property rights.

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Standard of Review

" [W]hen, as here, the facts of a case are uncontested and the resolution of the issue turns solely on the interpretation of pertinent statutes, ‘ a question as to the subject-matter jurisdiction of a court is purely a question of law, which is reviewed de novo.’ " George Weis Co. v. Stratum Design-Build, Inc., 227 S.W.3d 486, 489 (Mo. banc 2007), quoting Mo. Soybean Ass'n v. Mo. Clean Water Comm'n, 102 S.W.3d 10, 22 (Mo. banc 2003).

Discussion

The matter before us is a case of first impression involving the interpretation of two separate, yet related statutes involving the taking of private property by the government through statutorily authorized procedures. On appeal, County argues that because the condemnation at issue was initiated as an eminent domain proceeding under the TIF Act, the trial court lost subject matter jurisdiction to proceed on the merits of the condemnation action after the statutory time requirements for acquiring the property under the TIF Act expired. County contends the trial court should have dismissed the condemnation petition because it lacked jurisdiction to take any other action, and therefore, erred in awarding interest to Berck under Section 523.045. Berck counters that once the commissioners enter an award in a condemnation proceeding brought pursuant to Chapter 523, the action may be disposed only by a final judgment or a condemnor's election to abandon the proceedings, even when the condemnation occurs as an eminent domain proceeding brought pursuant to the TIF Act.

A. Trial court did not lose subject matter jurisdiction over the condemnation action.

In reviewing whether the trial court lost jurisdiction of this action when the time requirements for the acquisition of the Single Property expired under Section 99.810.1(3), we are guided by the Missouri Supreme Court's pronouncement regarding subject matter jurisdiction in J.C.W. ex rel. Webb v. Wyciskalla, 275 S.W.3d 249 (Mo. banc 2009). As noted by the Supreme Court in Webb, Missouri courts recognize two types of jurisdiction: personal jurisdiction and subject matter jurisdiction, both of which are based on constitutional provisions. Id. at 252. Subject matter jurisdiction is governed by article V of the Missouri Constitution, and is a matter of " the court's authority to render a judgment in a particular category of case." Id. at 253. The Missouri Constitution grants " original jurisdiction over all cases and matters, civil and criminal" to the circuit courts. Mo. Const. art. V, sec. 14. Subject matter jurisdiction is derived from the law and cannot be conferred by consent. State ex rel. Lambert v. Flynn, 348 Mo. 525, 154 S.W.2d 52, 57 (1941). When a court lacks subject matter...

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1 practice notes
  • State v. Pierce, 022613 MOCAE, ED98478
    • United States
    • Missouri Court of Appeals of Missouri
    • February 26, 2013
    ...jurisdiction, i.e., the power to hear criminal cases. State v. Fassero, 256 S.W.3d 109, 117 (Mo. banc 2008); St. Louis County v. Berck, 322 S.W.3d 610, 615 (Mo. App. E.D. Appellant argues the trial court lacked the authority to proceed and erred in overruling his motion to dismiss based upo......
1 cases
  • State v. Pierce, 022613 MOCAE, ED98478
    • United States
    • Missouri Court of Appeals of Missouri
    • February 26, 2013
    ...jurisdiction, i.e., the power to hear criminal cases. State v. Fassero, 256 S.W.3d 109, 117 (Mo. banc 2008); St. Louis County v. Berck, 322 S.W.3d 610, 615 (Mo. App. E.D. Appellant argues the trial court lacked the authority to proceed and erred in overruling his motion to dismiss based upo......