State v. Sherry

• Citation: 436 S.W.3d 718
• Decision Date: 08 July 2014
• Docket Number: No. ED 101151.,ED 101151.
• Court: Court of Appeal of Missouri (US)
• Parties: STATE of Missouri, ex rel., Sharon WATSON, et al., Relators, v. The Honorable Thea SHERRY, Circuit Judge, 21st Circuit, Respondent.

436 S.W.3d 718

STATE of Missouri, ex rel., Sharon WATSON, et al., Relators,

v.The Honorable Thea SHERRY, Circuit Judge, 21st Circuit, Respondent.

No. ED 101151.

Missouri Court of Appeals,

Eastern District,

Writ Division Six.

July 8, 2014.

Dorothy L. White–Coleman, Susie M. McFarland, St. Louis, MO, for relator.

Kelley F. Farrell, St. Louis, MO, Kenneth J. Heinz, Clayton, MO, for respondent.

ROY L. RICHTER, Presiding Judge.

I. Introduction

Relators, Sharon A. Watson, (“Sharon Watson”), Clinton L. Watson (“Clinton Watson”), Diarra K. Morris (“Morris”), as Personal Representative for the Estate of the deceased Juanita Watson, and Jelani Aitch (“Aitch”) (collectively, “Relators”) filed a Petition for Writ of Prohibition with this Court, seeking to prohibit the enforcement of an Order on Writ of Possession of February 26, 2014, by Circuit Judge Thea A. Sherry (“Respondent”) in the underlying lawsuit pending in the Circuit Court of St. Louis County, Case No. 07SL–CC01335, City of Richmond Heights, Missouri v. Clinton L. Watson, et al., (“Lawsuit”). The Order on Writ of Possession ordered possession of the property at 1705 Berkeley Avenue, Richmond Heights, to be delivered on March 5, 2014, to the City of Richmond Heights (“the City”), based on an Order of Condemnation entered on March 19, 2008. We previously issued a Preliminary Order in Prohibition on March 4, 2014. The Preliminary Order in Prohibition hereby is made absolute.

II. Procedural Background

The history of this case begins with the July 12, 2006 adoption, and August 12, 2006 effective date of Ordinance 4991, Ordinances of the City of Richmond Heights, Missouri, which the Richmond Heights City Council adopted pursuant to the Real Property Tax Increment Allocation Redevelopment Act, Sections 99.800 to 99.865, Revised Statutes of Missouri, (the “TIF Act”). The TIF Act authorizes municipalities to utilize eminent domain to take private property to facilitate redevelopment.¹ Ordinance 4991 designated a portion of the City consisting of approximately 63 acres as a redevelopment area, found that such area was a blighted area, and approved the redevelopment plan and redevelopment project for the Hadley Township redevelopment area, among other things.²

In March 2008, Respondent entered its Order of Condemnation condemning the property in the redevelopment area, including the property at 1705 Berkeley Avenue, Richmond Heights (“the Property”). Those with an ownership interest in the Property and named as defendants in the condemnation proceeding include: Sharon Watson, in co-tenancy with others, by operation of law, by direct descent in succession of title, by operation of trust, or otherwise; Sharon Watson's brother Clinton Watson, in co-tenancy with others, by operation of law, by direct descent in succession of title, by operation of trust, or otherwise and Successor Trustee of the George T. and Mary E. Watson Trust dated November 18, 1997; Juanita Watson, deceased, whose daughter Morris became the duly appointed personal representative of the Estate of Juanita Watson and thereby took her ownership interest in the Property in co-tenancy with others, by operation of law, by direct descent in succession of title, by operation of trust, or otherwise; Georgia Crenshaw (“Crenshaw”), the sister of Sharon and Clinton Watson, in co-tenancy with others, by operation of law, by direct descent in succession of title, by operation of trust, or otherwise (who is not a party to this writ proceeding); and Aitch, son of Sharon Watson and has resided in the Property for periods since 1973 with the permission of Sharon Watson, Clinton Watson, Morris and Crenshaw.³

On May 13, 2008, the court-appointed commissioners filed their commissioners' report assessing damages, and sent notice to the Relators of the same. Damages were assessed at $322,344 for the condemnation of the Property. The City did not pay the commissioners' award for damages until December 2, 2013, at which time the court sent notice to the Relators by certified mail of the deposit of the commissioners' award into the registry of the court. The notice of payment stated that the City deposited $429,962.74 as full payment of the commissioners' award, plus interest for the condemnation of the Property.

On or about December 30, 2013, the City filed its Motion for Writ of Possession against Aitch, seeking an Order on Writ of Possession to deliver possession of the Property to the City on or before March 5, 2014. The City asked to pass the hearing that was originally scheduled on its motion for January 24, 2014, but renewed the motion and a hearing was held on February 26, 2014. Respondent entered an Order directing the sheriff of St. Louis County to deliver possession of the Property to the City on or before March 5, 2014. Aitch, appearing pro se at the hearing, argued, inter alia, that the court lacked jurisdiction to hear the motion.

On March 4, 2014, Relators filed their Petition for Writ of Prohibition, along with Suggestions in Support thereof, seeking to prohibit Respondent from taking any further action in the underlying condemnation matter other than dismissing the Petition in Condemnation because the City's legislative authority to proceed with the condemnation of the Property had lapsed and expired, and Respondent therefore had no authority and acted in excess of the court's jurisdiction when entering an Order on Writ of Possession. Relators explained that the City had only five years from the date of the adoption of Ordinance No. 4991 within which to “acquire by eminent domain” Relators' Property, and the City had not “acquired” the Property before its legislative authority lapsed and expired. This Court issued a Preliminary Order in Prohibition on the same day, ordering Respondent to answer Relator's Petition and also refrain from all actions regarding the premises until further order of this Court. Thereafter, Respondent filed an Answer and Suggestions in Opposition to the Petition for Writ of Prohibition. The parties also filed briefs pursuant to Rule 84.24 of the Rules of Civil Procedure.

III. Discussion

A. A writ of prohibition is appropriate where parties will suffer irreparable harm.

The power to issue remedial writs derives from Article V, Section 4.1 of the Missouri Constitution. Writs of prohibition are issued in three general categories: 1) where there is an usurpation of judicial power because the trial court lacks personal or subject matter jurisdiction; 2) where there exists a clear excess of jurisdiction or an abuse of discretion such that the court lacks the power to act as contemplated; or 3) where there is no adequate remedy by appeal. State ex rel. Dir. of Revenue v. Kinker, 209 S.W.3d 1, 2 (Mo.App.E.D.2006) (citing State ex rel. Dir. of Rev. v. Mobley, 49 S.W.3d 178, 179 (Mo. banc 2001)). Prohibition is a discretionary writ that may be issued to prevent an abuse of judicial discretion, to avoid irreparable harm to a party, or to prevent exercise of extra-jurisdictional power. State ex rel. Broadway–Washington Assocs., Ltd. v. Manners, 186 S.W.3d 272, 274 (Mo. banc 2006) (abrogated on other grounds).

The City argues that a writ of prohibition is not appropriate because Relators could have appealed the issue of whether the TIF Act's Section 99.810.1(3) precludes the City from the acquisition when Relator Clinton Watson argued the issue in his “Motion for Assessment of Heritage Value and Assessment of Interest”filed on July 19, 2012, which was after 2011, the expiration of five years under the statute at issue. The circuit court's August 14, 2012 determination that the court “lacks jurisdiction to handle anything other than payment for property” effectively passed on making a decision on this issue, although this order finding a lack of jurisdiction was not appealed. However, Respondent's later February 26, 2014 order granting a Writ of Possession was a judgment that ordered an immediate change in possession of the Property rather than the payment for the property. Once Relators give up possession of the Property, demolition of the Property will begin. No appeal can undo the ensuing consequences. Should this Court find Respondent lacked the authority to act as it did here, an extraordinary writ of prohibition is therefore a means of avoiding the irreparable harm that Relators would suffer otherwise.

B. The circuit court has subject matter jurisdiction.

Next, we preface our discussion of the requirements of the TIF Act with a brief analysis of the difference between jurisdiction and authority to act under a statute. The TIF Act authorizes the use of tax abatements to support the redevelopment of blighted areas, and condemnation and eminent domain are but tools used to facilitate such redevelopment. Meramec Valley R–III Sch. Dist. v. City of Eureka, 281 S.W.3d 827, 829 (Mo.App.E.D.2009). Condemnation proceedings are governed by statute, City of Branson v. Branson Hills Master Ass'n, Inc., 292 S.W.3d 467, 471 (Mo.App.S.D.2009), and writs of prohibition will be issued when a relator “show [s] that the condemnation proceedings are unauthorized by law.” Tierney v. Planned Indus. Expansion Auth., 742 S.W.2d 146, 149–50 (Mo. banc 1987). At one time, it was common to refer to proceedings unauthorized by law as proceedings where the circuit court “lacks subject matter jurisdiction” to continue to enter the orders. Id. However, as this Court expressed in St. Louis County v. Berck, 322 S.W.3d 622, 627 (Mo.App.E.D.2010), the J.C.W. ex rel. Webb v. Wyciskalla decision clarified subject matter jurisdiction, distinguishing between a circuit court's statutory limitation to act as opposed to a lack of jurisdiction. 275 S.W.3d 249, 252–54 (Mo. banc 2009). This distinction is critical here in determining not whether the circuit court lacked jurisdiction to enter an order on Writ of Possession, but whether the circuit court lacked statutory authority to act because the City exceeded the time...