Bi-State Dev. Agency v. Ames Realty Co.

• Decision Date: 22 July 2008
• Docket Number: No. ED 89738.,ED 89738.
• Citation: 258 S.W.3d 99
• Parties: The BI-STATE DEVELOPMENT AGENCY OF the MISSOURI-ILLINOIS METROPOLITAN DISTRICT, Plaintiff/Appellant, v. AMES REALTY COMPANY, et al., Defendants/Respondents.
• Court: Missouri Court of Appeals

258 S.W.3d 99

The BI-STATE DEVELOPMENT AGENCY OF the MISSOURI-ILLINOIS METROPOLITAN DISTRICT, Plaintiff/Appellant, v. AMES REALTY COMPANY, et al., Defendants/Respondents.

No. ED 89738.

Missouri Court of Appeals, Eastern District, Division Two.

July 22, 2008.

James W. Erwin, Mary M. Bonacorsi, Pamela J. Meanes, Brian C. Stone, St. Louis, MO, for appellant.

Robert Denlow, Paul G. Henry, Clayton, MO, Donald S. Singer, Scott A. Schatzman, St. Louis, MO, for respondents.

LAWRENCE E. MOONEY, Presiding Judge.

The plaintiff, Bi-State Development Agency of the Missouri-Illinois Metropolitan District, appeals from the judgment entered in its condemnation action by the Circuit Court of St. Louis County, following a jury verdict awarding damages to the defendant, the agents/trustees of Ames Place Subdivision. The jury assessed damages totaling $810,000 for the two University City properties, in which Bi-State acquired fee simple and easement interests in connection with construction of its light-rail extension project. On appeal, Bi-State claims that the trial court erred in finding that the defendant subdivision, rather than the City of University City ("the city"), owned the land referred to at trial as the "Green Space," that the trial court erred in admitting evidence of the Green Space's value based on the across-the-fence appraisal methodology, and that the trial court erred in excluding evidence of special benefits to the subdivision. We conclude that Bi-State lacks standing to appeal the finding of the subdivision's ownership of the Green Space and that, in any case, such appeal is untimely. We also find no abuse of discretion concerning the evidentiary issues. Therefore, we affirm the trial court's judgment.

Bi-State filed a petition for condemnation of two University City properties, referred to throughout the proceedings as "University Drive" and the "Green Space." University Drive is a private street within the subdivision. The Green Space was a strip of common ground, measuring approximately thirty feet by 2,400 feet and running the length of the subdivision's southern boundary. Planted with trees and grass, the Green Space served as a buffer between University Drive and a public thoroughfare, which borders the subdivision to the south. The petition sought permanent easements for some areas and the fee for other areas of the two properties. The trial court entered its amended order of condemnation and appointed commissioners in January 2003. The subdivision filed a motion to apportion and distribute the commissioners' award for the condemned properties some twenty months later. No party responded to the motion. At a hearing in October 2004—at which hearing only the subdivision appeared—the trial court heard the subdivision's evidence of its ownership of the properties. The court then entered judgment, ordering payout of one hundred percent of the commissioners' award to the subdivision for the condemned University Drive and Green Space properties. No party appealed the judgment.

The theory that the city might own the Green Space emerged in the summer of 2005. In January 2006, Bi-State filed a motion for partial summary judgment as to the Green Space or, alternatively, to vacate the amended condemnation award and/or reconsider the distribution of the commissioner's award. The trial court allowed the city to join in Bi-State's motion.¹ After hearing the motion and considering the evidence before it, the trial court denied the joint motion of Bi-State and the city, concluding that the subdivision owned the Green Space as of the date of taking. A trial on the exceptions followed, and the jury awarded the subdivision damages in the amount of $85,000 for the University Drive taking and $725,000 for the Green Space taking. Bi-State appeals.

In its first point, Bi-State claims the trial court erred in finding that the subdivision, rather than the city, owned the Green Space because, according to Bi-State, the subdivision made a common-law dedication of the Green Space to the city. Bi-State argues that it was aggrieved by the trial court's finding, and consequently the court's refusal to vacate the orders of condemnation and distribution, because Bi-State is now subject to a $725,000 judgment requiring payment to the subdivision for property that allegedly it did not own. Bi-State also maintains that if the city is the true owner of the Green Space, then Bi-State is statutorily prohibited from condemning the property without the city's agreement, pursuant to section 70.370 RSMo. (2000).² The city did not participate in the trial of the exceptions nor is the city a party to this appeal.

Bi-State's claim of error challenges the court's distribution determination. We deny Bi-State's claim for two distinct reasons. First, Bi-State is not aggrieved by the distribution determination and thus lacks standing to appeal. Furthermore, even if Bi-State were aggrieved, its appeal of this issue is untimely.

Section 523.053 sets forth the procedure for distributing the condemnation award among defendants claiming a determinable interest in the proceeds of the award. Upon filing of either an agreement made among the defendants or a motion for distribution, the court shall determine the percentage of the award to which each party having an interest therein is entitled. Section 523.053. The trial court's determination of the interests in the condemnation award is considered a final, appealable judgment. Section 523.053.2; State ex rel. Missouri Highway and Transp. Comm'n v. Quiko, 923 S.W.2d 489, 492 (Mo.App. S.D.1996); St. Louis County v. Boatmen's Trust Co., 857 S.W.2d 453, 455 n. 8 (Mo.App. E.D.1993); City of Columbia v. Baurichter, 684 S.W.2d 903, 905 (Mo.App. W.D.1985)(Baurichter I); State ex rel. State Highway Comm'n v. Carlie, 487 S.W.2d 873, 875 (Mo.App.St.L.Dist.1972). It is an ancillary but separate proceeding that is separately appealable. Bi-State Dev. Agency of Missouri-Illinois Metropolitan Dist. v. Nikodem, 859 S.W.2d 775, 776 n. 1 (Mo.App. E.D.1993). The determination of shares in this proceeding is final, regardless of future developments in the case. Baurichter I, 684 S.W.2d at 905.

The condemnor is entitled to notice of the filing of any agreement or motion and may have the right to intervene as an interested party in the proceedings. Section 523.053.1. The condemnor's right to intervene exists to ensure that the court considers and determines, prior to distribution, the interests of persons having an actual or beneficial interest in the property. State ex rel. Behle v. Stussie, 826 S.W.2d 71, 72 (Mo.App. E.D.1992). However, the condemnor need not determine the respective rights of the various defendants. City of Columbia v. Baurichter, 713 S.W.2d 263, 266 (Mo. banc 1986)(Baurichter II). "The condemnor is not concerned with the rights of rival claimants to the award because the fund deposited in the court is substituted for the property taken in condemnation." State ex rel. State Highway Comm'n v. Chicago B. & Q. R.R. Co., 539 S.W.2d 760, 762 (Mo.App.K.C.Dist.1976)(quoting State ex rel. State Highway Comm'n v. Paul, 368 S.W.2d 419, 423 (Mo. banc 1963)).³

Persons having or claiming an interest in the distribution may appeal the trial court's judgment. Behle, 826 S.W.2d at 72-73. "The right of appeal exists solely by virtue of statute." Id. at 73. Section 523.053.2 grants the right of appeal to "[a]ny party aggrieved of the determination of interests made by the court" in a condemnation action. For a party to be "aggrieved," the judgment must operate prejudicially and directly on the party's personal or property rights or interests and such effect must be immediate, not merely a possible remote consequence. Shelter Mut. Ins. Co. v. Briggs, 793 S.W.2d 862, 863 (Mo. banc 1990); Behle, 826 S.W.2d at 73. Generally, a judgment that affects or determines rights in property does not aggrieve a party who neither has nor claims an interest in or title to the property. Chicago B. & Q., 539 S.W.2d at 762.⁴ We hold that Bi-State lacks standing to appeal the trial court's determination of the interests in the Green Space because Bi-State is not thereby aggrieved.

The right to intervene pursuant to section 523.023.1 is not synonymous with being an aggrieved party for purposes of appeal under section 523.023.2.⁵ See Behle, 826 S.W.2d at 72-73. In Behle, the condemnor appealed distribution of the commissioners' award, claiming that it was an aggrieved party. Id. at 72. The defendant landowners sought a writ of prohibition wherein this Court held that the order of distribution did not operate prejudicially or directly on the condemnor's property rights or interests, and so the condemnor was not an aggrieved party with the right to appeal. Id. at 73. This Court explained that only persons claiming an interest in the distribution have the right to appeal. Id. at 72-73. "The interests of the [condemnor] are fully protected by the trial court's final order determining the parties who may legally share in the distribution of the deposited funds. It has no further interest in the order of distribution." Id. at 73.

Bi-State cites State ex rel. State Highway Comm'n v. DeMarco, 422 S.W.2d 644 (Mo.1968), to support its contention that it is aggrieved and has standing to contest the court's determination that the subdivision owned the Green Space. Bi-State's reliance on DeMarco is misplaced. In DeMarco, the condemnor discovered that it already owned the property it sought to condemn. 422 S.W.2d at 646. The Court held that the defendants were not entitled to the condemnation proceeds, id. at 649, but the condemnor in DeMarco was aggrieved by a judgment requiring it to pay for property it already owned. That is not the case here. It is undisputed that Bi-State did not own the Green Space prior to the condemnation proceedings and that Bi-State would be obligated to pay for its taking of the property. In this case, Bi-State...