State ex rel. Missouri Highway and Transp. Com'n v. Quiko

• Decision Date: 29 May 1996
• Docket Number: 20443,Nos. 20229,s. 20229
• Citation: 923 S.W.2d 489
• Court: Missouri Court of Appeals
• Parties: STATE of Missouri, ex rel. MISSOURI HIGHWAY AND TRANSPORTATION COMMISSION, Plaintiff, v. Eduard QUIKO, et al., Defendants. DAN B. SAVAGE & SONS ADVERTISERS, INC., Appellant, v. James and Dorothy HASKETT, (on Exceptions of Haskett), Respondents. DAN B. SAVAGE & SONS ADVERTISERS, INC., Appellant, v. Shelby BALLEW, (on Exceptions of Ballew), Respondent.

Page 489

923 S.W.2d 489

STATE of Missouri, ex rel. MISSOURI HIGHWAY AND TRANSPORTATION COMMISSION, Plaintiff, v. Eduard QUIKO, et al., Defendants.

DAN B. SAVAGE & SONS ADVERTISERS, INC., Appellant, v. James and Dorothy HASKETT, (on Exceptions of Haskett), Respondents.

DAN B. SAVAGE & SONS ADVERTISERS, INC., Appellant, v. Shelby BALLEW, (on Exceptions of Ballew), Respondent.

Nos. 20229, 20443.

Missouri Court of Appeals,

Southern District,

Division One.

May 29, 1996.

William H. May, Springfield, for appellant.

Janice Ellis McCain, Springfield, Greg Gibson, Nixa, for respondents.

Peter M. Donovan, Dist. Counsel, Springfield, John H. Gladden, Asst. Chief Counsel, Rich Tiemeyer, Chief Counsel, Jefferson City, Barry S. Zirulnik, Price & Zirulnik, Jackson, Mississippi, for amicus curiae Missouri Highway & Transp. Com'n.

GARRISON, Judge.

These are consolidated appeals in condemnation actions which involve the apportionment of commissioners' awards between landowners and Appellant which, as lessee, maintained advertising billboards (structures) on each of the involved tracts.

In September, 1994, the Missouri Highway and Transportation Commission (MHTC) filed a petition to condemn tracts of land adjacent to existing U.S. 65 north of Branson, Missouri. MHTC sought to acquire approximately 4.1 acres of a tract owned by James and Dorothy Haskett and 9.5 acres from Shelby Ballew. Pursuant to leases with the Hasketts and Ballew, Appellant maintained structures on each of the tracts being condemned.

Following an order of condemnation, court-appointed commissioners filed reports assessing the damages to the Haskett tract at $129,000, and $367,000 to the Ballew tract. After these amounts were paid into court, motions were filed seeking apportionment of each of the awards between the owners and Appellant. Following hearings on each of the motions, the trial court ordered that 69% of the award in the Haskett case be apportioned to the owners and 31% to Appellant. It also apportioned 90% of the Ballew award to her and 10% to Appellant. Appellant appeals from each of those judgments. We affirm.

Before addressing the merits of these appeals, we first consider Ballew's motion to dismiss the appeal in Case No. 20443. Ballew alleges that this court lacks jurisdiction because the order appealed from was interlocutory and did not dispose of all issues in the case. This ignores the fact that, pursuant to § 523.053, RSMo 1994, any party aggrieved by the trial court's ruling on a motion to distribute a commissioners' award "shall have the right of appeal therefrom, and the same shall be considered as a final judgment for such purposes." See also City of Columbia v. Baurichter, 684 S.W.2d 903, 905 (Mo.App. W.D.1985).

As we interpret the other basis alleged in Ballew's motion to dismiss, she contends that the appeal is without factual basis because findings of fact and conclusions of law were not requested or made by the trial court. She argues that under such circumstances all fact issues are considered as having been found in accordance with the result reached, and the judgment will be upheld on any reasonable theory supported by the evidence, citing Rule 73.01(a)(3) ¹ and Nail Boutique, Inc. v. Church, 758 S.W.2d 206, 208 (Mo.App. S.D.1988). The fact that no findings of fact or conclusions of law were made, however, does not prevent all appellate review. See Reinert v. Director of Revenue, 894 S.W.2d 162, 164 (Mo.banc 1995); Covington v. Director of Revenue, 903 S.W.2d 673, 675 (Mo.App. E.D.1995).

Ballew's motion to dismiss is denied.

Review of another preliminary matter is necessary. Both Haskett and Ballew argue that the statement of facts and points relied on in Appellant's brief violate the mandates of Rule 84.04. They are correct in both respects, especially concerning the points relied on.

Three things are required by Rule 84.04(d) with respect to points relied on: (1) a statement of the action or ruling of the trial court about which the party complains; (2) a statement that specifies why the ruling was erroneous; and (3) a statement informing the appellate court wherein the evidence at trial supports the position the party asserts the trial court should have taken. Bentlage v. Springgate, 793 S.W.2d 228, 229 (Mo.App. S.D.1990). The "why" requirement contemplates a statement which ordinarily will closely approximate what appellant believes should have been the trial court's conclusion of law on the point being addressed. Thummel v. King, 570 S.W.2d 679, 685 (Mo.banc 1978).

All of Appellant's points relied on violate the "wherein" and "why" requirements. They essentially constitute nothing more than conclusions of claimed error. See White v. White, 846 S.W.2d 212, 214 (Mo.App. S.D.1993). An insufficient point relied on preserves nothing for appellate review. Bentlage v. Springgate, 793 S.W.2d at 231.

We also note other violations of Rule 84.04. Appellant cites six cases following its fifth point relied on but refers to no case authority in the argument portion of the brief under that point. The absence of any explanation of how the authorities cited under the Appellant's sixth point is not supported by the citation of any authority, either under the point relied on or in the argument section of the brief. "When no authority is cited and no explanation is given, points relied on are deemed waived or abandoned." State v. Conaway, 912 S.W.2d 92, 95 (Mo.App. S.D.1995). See also Shiyr v. Pinckney, 896 S.W.2d 69, 71 (Mo.App. S.D.1995); Emery v. Emery, 833 S.W.2d 453, 454-55 (Mo.App. S.D.1992); Schnatzmeyer v. National Life Ins. Co., 791 S.W.2d 815, 822 (Mo.App. E.D.1990).

point support the contention of error invites us to become an advocate for Appellant in making that determination, a function which we cannot appropriately perform. Mitchell v. Board of Educ., 913 S.W.2d 130, 135 (Mo.App. E.D.1996).

Although not required to do so, we will undertake to review Appellant's first four points for plain error pursuant to Rule 84.13(c). ² See Gill v. Farm Bureau Life Ins. Co., 856 S.W.2d 96, 97 (Mo.App. S.D.1993). Under such circumstances, we are restricted to reviewing the argument portions of the brief to determine whether there has been plain error affecting substantial rights which, though not properly preserved, may have resulted in a manifest injustice or a miscarriage of justice. Sertoma Bldg. Corp. v. Johnson, 857 S.W.2d 858, 859 (Mo.App. S.D.1993). We are mindful, however, that the plain error doctrine is rarely resorted to in civil cases. Brown v. Mercantile Bank, 820 S.W.2d 327, 335 (Mo.App. S.D.1991). We decline to review the fifth and sixth points, which are abandoned for the reasons stated above.

POINT ONE

In its first point, Appellant complains that the trial court used depreciated replacement cost of the structures to determine its interest in the awards. It argues that the court "committed reversible error by failing to utilize or even discuss Appellant's comparable sales data in reaching its apportionment decisions." The comparable sales data referred to were sales of other advertising structures from which Appellant's witness (Ms. Truitt) derived percentages expressed as multiples of gross advertising revenues, and which Appellant seeks to apply in the instant case in arriving at the market value of the structures.

If property taken by condemnation includes a leasehold interest and buildings or fixtures which, between the owner and lessee belong to the lessee, the lessee is entitled to be compensated for the market value of the leasehold and the building or fixture as a unit. ³ State ex rel. Highway Comm'n v. Samborski, 463 S.W.2d 896, 902 (Mo.1971). "While evidence of the value of the unexpired portion of the lease and the building separately is admissible as bearing upon the value of the two as a unit, the market value is what a buyer would be willing to pay for them as a unit and not the sum of the values of each considered separately." Id. (quoting from Minneapolis-St. Paul M.A.C. v. Hedberg-Freidheim Co., 226 Minn. 282, 32 N.W.2d 569, 571-72 (1948)). In Samborski, the court identified the question as the price a buyer would be willing to pay for the leasehold with the building or structure, subject to the terms and conditions of the lease. 463 S.W.2d at 902.

In determining the value of the leasehold, the court said, in Land Clearance for Redevelopment Corp. v. Doernhoefer, 389 S.W.2d 780, 784 (Mo.1965) [T]he value of the leasehold should be determined from the testimony of qualified expert witnesses as that value which a buyer under no compulsion to purchase the tenancy would pay to a seller under no compulsion to sell, taking into consideration the period of the lease yet to run, including the unexercised right of renewal, the favorable and unfavorable factors of the leasehold estate, the location, type and construction of the building, the business of the tenant, comparable properties in similar neighborhoods, present market conditions and future market trends, and all other material factors that would enter into the determination of the reasonable market value of the property. The bonus value, sometimes referred to as the leasehold savings or profit, is the difference between the economic rental and the contract rental. The economic rental is the actual market value of the use and occupancy.

The Doernhoefer principle has been interpreted as entitling a lessee to the "bonus value" the lessee has under the lease, which is the difference between the economic (or market) rental and the contract rental specified in the lease. Land Clearance for Redevelopment Auth. v. W.F. Coen & Co., 773 S.W.2d 465, 471 (Mo.App. W.D.1989). See also Osborn v. Home Ins. Co., 914 S.W.2d 35, 37-38 (Mo.App. E.D.1996).

In valuing a billboard structure which belonged to a lessee but which passed to the condemning authority, it has been said that the lessee is entitled to be paid the reasonable market value of the...