City of Riverside v. Progressive Inv. Club

Decision Date29 May 2001
Citation45 S.W.3d 905
Parties(Mo.App. S.D. 2001) City of Riverside, Missouri, Respondent, v. Progressive Investment Club of Kansas City, Inc., et al., Respondent, Ilios, Inc., Appellant. WD58696 0
CourtMissouri Court of Appeals

Appeal From: Circuit Court of Platte County, Hon. Owens L. Hull, Jr.

Counsel for Appellant: James G. Trimble

Counsel for Respondent: Laurence R. Tucker and Donald A. Witt

Opinion Summary: In this condemnation proceeding, Ilios, Inc. appeals the judgment of the trial court denying relocation benefits and apportioning a $185,000 condemnation award between it and Progressive Investment Club of Kansas City, Inc. (Progressive). Ilios, Inc. (Ilios) owned and operated a restaurant in space leased from landlord Progressive. Ilios claims that the trial court erred in (1) refusing to set aside its order denying Ilios relocation benefits and to reopen the case for additional evidence that the property was acquired for a public purpose for which federal funds were available requiring the payment of such relocation benefits, (2) allocating the condemnation award because the court relied on hearsay evidence, and (3) reducing its share of apportionment by two months unpaid rent.

Division III holds: Where in this appeal, Ilios is not challenging Riverside's right to condemn the property but the trial court's judgment regarding damages, Ilios's withdrawal of its portion of the condemnation award from the court registry does not estop it from litigating the issue of damages, and this court has jurisdiction over the appeal.

Where Ilios failed to specify what evidence it intended to present and, thus, failed to demonstrate the evidence was material or that it would substantially affect the merits of the case, the trial court did not abuse is discretion in refusing to set aside its order denying relocation benefits and to reopen the case for additional evidence on the issue.

Where Progressive's expert, who was a full time appraiser of commercial and industrial properties, testified that he formed his valuation opinion by utilizing three comparable properties after speaking to the leasing agent or owner of the properties and where the expert's testimony included a description of the properties' locations, conditions, sizes, and lease prices, the testimony was admissible and constituted substantial evidence to support the trial court's decision regarding apportionment of the condemnation award.

Where Riverside paid the condemnation award into the registry of the trial court on January 5, 2000, Riverside obtained title to and right to possession of the property, Progressive was divested of all rights it had in the property, the lease between it and Ilios terminated, and Ilios's obligation to pay rent to Progressive was extinguished. The trial court, therefore, misapplied the law in reducing Ilios's share of the condemnation award by unpaid rent after the date of condemnation.

Robert G. Ulrich, Presiding Judge

In this condemnation proceeding, Ilios, Inc. appeals the judgment of the trial court denying relocation benefits and apportioning a $185,000 condemnation award between it and Progressive Investment Club of Kansas City, Inc. (Progressive). Ilios, Inc. (Ilios) owned and operated a restaurant in space leased from landlord Progressive. Ilios claims that the trial court erred in (1) refusing to set aside its order denying Ilios relocation benefits and to reopen the case for additional evidence that the property was acquired for a public purpose for which federal funds were available requiring the payment of such relocation benefits, (2) allocating the condemnation award because the court relied on hearsay evidence, and (3) reducing its share of apportionment by two months unpaid rent. The judgment of the trial court is affirmed in part and reversed in part, and the case is remanded with directions.

The City of Riverside filed a petition to condemn property known as Pic Plaza to use as a public park. The property was owned by Progressive, which leased the property to various tenants. Ilios leased part of the property to operate a restaurant. At the time Riverside acquired title to the property, Ilios had four and a half years remaining on its lease with Progressive.

During the condemnation proceeding, Ilios requested relocation assistance under section 523.205.1, RSMo 2000. Section 523.205.1 provides:

Any public agency as defined in section 523.200 which is required, as a condition to the receipt of federal funds, to give relocation assistance to any displaced person is hereby authorized and directed to give similar relocation assistance to displaced persons when the property involved is being acquired for the same public purpose through the same procedures, and is being purchased solely through expenditure of state or local funds.

Section 523.205.1, RSMo 2000. Riverside opposed Ilios's request arguing that it is not a "public agency" and that it was not acquiring the property for the "same public purpose" or through "the same procedures" as a federally funded municipal park project. The trial court entered an order denying relocation funds. Ilios then filed a motion to set aside and reconsider the court's order denying relocation benefits. It asked the court to allow introduction of additional evidence that Riverside actually planned to use part of the condemned property to widen a highway bridge adjacent to the property for which federal funds were available. A hearing was held on the motion, and the trial court subsequently denied it.

The trial court also entered an order approving condemnation of the property for the use set out in the petition. In the order, the court also approved the stipulated agreement between Riverside and the defendants regarding just compensation for the property in the amount of $185,000, and Riverside paid that sum into the court on January 5, 2000. Thereafter, Ilios filed a motion for apportionment of the condemnation award between it and Progressive. Progressive filed its own motion to pay out the award. Ilios also filed a motion for new trial on the issue of relocation benefits again arguing that it had new information showing that part of the condemned property would be used for highway purposes.

Following a hearing in which Ilios and Progressive presented evidence regarding the value of Ilios's lease, the trial court entered its judgment apportioning the $185,000 condemnation award. It first ordered that unpaid real estate taxes in the amount of $9,037.15 be paid to the county. The court then awarded $7,650 less $900 for unpaid rent to Ilios and $169,212.85 to Progressive. Thereafter, the court issued checks to the county collector, Ilios, and Progressive. The next day, Ilios filed its motion to correct the judgment or in the alternative for a new trial on the issue of division of the condemnation award. A receipt of funds was filed with the court soon after. This appeal by Ilios followed.

Jurisdiction

Riverside and Progressive (Respondents) initially contest the jurisdiction of this court over Ilios's appeal. They claim that by withdrawing its condemnation award from the court registry, Ilios is estopped from challenging any proceedings that occurred prior to the withdrawal, and, therefore, the issues in this appeal are moot.

Where the owner of condemned land withdraws an award paid into the court for the owner's benefit as damages for appropriation of his property, the owner is estopped from challenging the right of the condemnor to condemn the property or any irregularities from that part of the proceeding. State ex rel. State Highway Comm'n v. Howald, 315 S.W.2d 786, 788-789 (Mo. 1958); Chicago Great Western R. Co. v. Kemper, 166 S.W. 291, 292-294, 256 Mo. 279 (Mo. 1914); Jackson County v. Hesterberg, 519 S.W.2d 537, 543-545 (Mo. App. 1975). "Such act [acceptance of the award] upon his part is a concession by him that the plaintiff is entitled to take the property under the proceedings, upon the payment of full and adequate compensation thereof." Howald, 315 S.W.2d at 789 (quoting Kemper, 166 S.W. at 294). The owner of condemned land is permitted, however, to further litigate the issue of just compensation or damages. Howald, 315 S.W.2d at 789; Kemper, 166 S.W. at 294. But see State ex rel. State Highway Comm'n of Missouri v. Davidson, 621 S.W.2d 126 (Mo. App. W.D. 1981)(landowners' withdrawal of commissioners' award from registry of court estopped landowners from attacking the validity of the appointment of the commissioners). In this appeal, Ilios is not challenging Riverside's right to condemn the property. Instead, it is contesting the trial court's judgment regarding damages. Ilios's withdrawal of its portion of the condemnation award from the court registry, therefore, does not estop it from litigating the issue of damages. This court has jurisdiction over this appeal.

Standard of Review

Review of this case is governed by Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). The judgment of the trial court will be affirmed on appeal unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Id. at 32.

Reopening the Case for Additional Evidence

In its first point on appeal, Ilios claims that the trial court erred in refusing to set aside its order denying relocation benefits and to reopen the case for additional evidence. Citing section 523.205.1, RSMo 2000, it argues that the property was acquired for a public purpose for which federal funds were available. Thus, because federal funds were available and because the property was acquired for public purpose, relocation benefits were payable. Section 523.205.1 states:

Any public agency as defined in section 523.200 which is required, as a condition to the receipt of federal funds, to give relocation assistance to any displaced person is hereby authorized and directed to give similar relocation assistance...

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