City of Cape Girardeau v. Robertson

• Decision Date: 10 March 1981
• Docket Number: No. 41724,41724
• Parties: CITY OF CAPE GIRARDEAU, Missouri, a Municipal Corporation, Plaintiff-Appellant, v. Patricia Benton ROBERTSON, Jack C. Robertson, et al., Defendants-Respondents.
• Court: Missouri Court of Appeals

Page 526

615 S.W.2d 526

CITY OF CAPE GIRARDEAU, Missouri, a Municipal Corporation, Plaintiff-Appellant, v. Patricia Benton ROBERTSON, Jack C. Robertson, et al.,

Defendants-Respondents.

No. 41724.

Missouri Court of Appeals, Eastern District, Division Four.

March 10, 1981.

Motion for Rehearing and/or Transfer to Supreme Court Denied

April 24, 1981.

Application to Transfer Denied June 8, 1981.

Robert C. Fick, Cape Girardeau, for plaintiff-appellant.

Albert C. Lowes, Buerkle, Lowes & Beeson, Jackson, for Reece W. and Louise Sanders, Patricia Benton Robertson and Jack C. Robertson.

Michael L. Richey, Richey & Price, Cape Girardeau, for Western District of the Lutheran Church Mo. Synod (Good Shepherd Lutheran Church).

A. M. Spradling III, Spradling & Spradling, Cape Girardeau, for William A. and Frieda Schumacher.

Joseph P. Fuchs, Deptster, Fuchs & Barkett, Sikeston, for Billy D. and Julia Hoffmeister.

SATZ, Judge.

In this case, the City of Cape Girardeau (City) appeals from the trial court's dismissal of the City's petition seeking an order of condemnation. We affirm.

The City filed a petition seeking an order of condemnation to obtain a "permanent construction easement" over parcels of land owned by the respondents (Landowners). According to the City's allegations, the easement over each parcel is necessary "for the widening, extending, altering and improvement" of Cape Rock Drive, and "(t)he purpose of said easement is to permit the ground adjacent to Cape Rock Drive right-of-way to be excavated or filled ... and graded and sloped ..., and for erosion protection." The City also alleged it had attempted to agree with the Landowners "as to the fair market thereof and the fair compensation to be paid and has been unable to so agree."

Apparently, the Landowners filed separate motions to dismiss the petition. ¹ Among other arguments, the Landowners contended the City had failed to bargain or negotiate in good faith and, therefore, the court lacked jurisdiction to enter the requested order of condemnation. After an evidentiary hearing, the trial court granted the Landowners' motions and dismissed the City's petition. The court found that none of the City's offers contemplated " 'full' remuneration" for any reduction in the market value of the parcels of land due to the designated easement. The court concluded the City had failed to comply with the constitutional and statutory requisite to negotiate in good faith with the Landowners before initiating the condemnation proceeding. The City appeals from this order.

At the outset, we note the Landowners contend this appeal is premature. Apparently, along with their respective motions to dismiss, each Landowner requested an award of attorney's fees. The trial court did not explicitly rule on the requests for attorney's fees in dismissing the City's petition, and, from this failure, the Landowners reason the court did not dispose of the issue of attorney's fees. In addition, the court did not designate its order of dismissal as a final, appealable order under Rule 81.06. Because the issue of attorney's fees was not disposed of and because the trial court's order was not designated as a final order, defendants contend the order was not final and appealable and, thus, they argue, this appeal is premature. We disagree.

Contrary to the Landowners' contention, the trial court's order did dispose of the issue of attorney's fees. By dismissing the City's petition, the trial court effectively rid itself of its jurisdiction to act further in the cause. Thus, the court's order of dismissal not only disposed of the City's petition, but it also effectively disposed of all pending issues in the cause. See Skatoff v. Alfend, 411 S.W.2d 169, 173-174 (Mo.1967). This method of disposing of the issue of attorney's fees and the resulting disposition of this issue may or may not have been correct. Those issues are not before us. The Landowners limit their complaint to the finality of the order, and the court's order of dismissal was final for purposes of appeal. See Dillen v. Remley, 327 S.W.2d 931, 933 (Mo.App.1959).

We now turn to the merits of the appeal. The City contends its evidence shows that it made an offer to each Landowner prior to the initiation of this condemnation action and also shows the Landowners either made no response to the offers or rejected them outright. The City also contends the record fails to show bad faith on the part of the City, but, on the contrary, the record shows the City's willingness to continue negotiations even after the condemnation petition was filed. Therefore, the City argues it met the jurisdictional prerequisite to condemnation proceedings of negotiating in good faith, and, citing the well-known standards of Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976), the City seeks reversal of the trial court's dismissal of its petition on the grounds that the court's findings and judgment are against the weight of the evidence and represent an erroneous application of the law.

In Missouri, as a prerequisite to an entry of an order of condemnation, the condemnor must plead and prove its inability to reach an agreement with the owner on the price to be paid for the condemned interest. E. g., State ex rel. Weatherby Advertising Co., Inc. v. Conley, 527 S.W.2d 334, 336 (Mo. banc 1975); Bueche v. Kansas City, 492 S.W.2d 835, 838-839 (Mo. banc 1973); Rules 86.01 et seq. This requires the condemnor to plead and prove a good faith offer and the subsequent rejection of that offer. E. g., State ex rel. Weatherby Advertising Co., Inc. v. Conley, supra at 336; State ex rel. State Hwy. Comm'n v. Pinkley, 474 S.W.2d 46, 48-49 (Mo.App.1971). In its petition, the City alleged it was taking a "permanent construction easement" over each parcel of land in issue. Thus, each Landowner would be entitled to the difference, if any, between the fair market value of his parcel before and after the parcel was burdened with the perpetual easement. Citizen's Electric Corp. v. Amberger, 575 S.W.2d 796, 798 (Mo.App.1978). However, from the record, it is clear the City did not contemplate any remuneration for burdening the parcels in question with a perpetual easement.

Admittedly, the record does show the City made an offer to each Landowner and also shows these offers were either rejected or ignored. However, the record clearly shows the City was not offering to pay for a "permanent construction easement." The City's sole witness was its negotiator, the Assistant to the City Manager. Her understanding of the present taking was consistent throughout the negotiations and at the hearing and is best exemplified by the following exchanges on cross-examination:

"Q. All right. And did your people ever determine whether or not there was any damage as a result of this perpetual continual easement and take into consideration any damages for that?

A. No, sir.

Q. Did you have any qualified appraiser come out and determine what the damage, if any, would be for the perpetual easement that would be going on this period of time?

A. No, sir."

"Q. Okay. How much did you allocate in there for the use of the City or the right of the City to come in in the future on the land.

A. None."

She insisted the City was "not taking their land" and the easement "doesn't change their property rights, their property lines." She acknowledged that permanent "means forever," that the City's permanent easement would limit the Landowners' use of their land and, also, acknowledged that, at times, the City would be "cutting back ... on to his property." Nonetheless, she still insisted that proper compensation was limited to the cost of "re-seeding and replanting trees." Additional references to the record would show the same consistent pattern. The City, through its negotiator, simply failed to consider and to evaluate as an element of damage the possible loss which might have been caused by burdening the parcels in question with a permanent construction easement. Obviously, this differs significantly from an honest but incorrect evaluation of the effect of imposing the easement. In effect, the City's conduct is no different than the City making an offer for one parcel of land or an easement over it and then petitioning to condemn a different parcel or easement. The City made no effort to pay for the "permanent construction easement" defined in its condemnation petition and, therefore, its offers could not be "good faith" offers.

In its reply brief, the City apparently counters that it did evaluate the possible losses caused by the easement. The City argues that it considered the benefits conferred by the street improvement and then determined these benefits met or exceeded any possible losses; and, therefore, its...