City of Kansas City v. New York-Kansas Bldg
| Citation | 96 S.W.3d 846 |
| Decision Date | 17 December 2002 |
| Docket Number | No. WD 60818.,WD 60818. |
| Parties | CITY OF KANSAS CITY, Missouri, Respondent, v. NEW YORK-KANSAS BUILDING ASSOCIATES, L.P., Appellant. |
| Court | Missouri Court of Appeals |
Jeffrey J. Simon, Kansas City, MO, for Appellant.
Theodore T. Anderson, Kansas City, MO, for Respondent.
Before ROBERT G. ULRICH, P.J., EDWIN H. SMITH and LISA WHITE HARDWICK, JJ.
New York-Kansas Building Associates, L.P. ("NYKBA") appeals the judgment of the trial court in favor of the City of Kansas City (the "City") in its suit for a permanent mandatory injunction. NYKBA contends that the trial court erred in granting a permanent mandatory injunction to the City because: (1) the City's pleadings did not include a request for the forced sale of the Professional Building (the "Building") located at 1103 Grand Avenue, Kansas City, Missouri; (2) the City had an adequate remedy at law which it failed to pursue; (3) the court acted outside of its equitable powers when it held that the Building would be sold at a sheriff's auction if the Building was not demolished or brought into compliance with the Kansas City Code of Ordinances (the "Code"); (4) a public nuisance cannot be found on the basis of Code violations and a "dangerous building" declaration by the City; (5) the trial court's finding that the Building was a public nuisance was not supported by substantial evidence and was against the weight of the evidence because the Building does not affect the health, safety, or welfare of society; and (6) the unclean hands doctrine applies because the City was involved in manufacturing evidence submitted to the trial court.
The City filed a Petition for Injunction on September 30, 1999, seeking abatement of a public nuisance at the Building located at 1103 Grand Avenue, Kansas City, Missouri. The Building has been vacant since May 1991 when a water tank located on the roof erupted during a power outage. This eruption caused several thousand gallons of water to spread throughout the Building. The Director of Neighborhood and Community Services, a division of the City, issued an Order to Repair on September 8, 1995, directing NYKBA to vacate the Building and make certain repairs within thirty days of the vacancy. NYKBA did not comply with either directive. On July 29, 1997, the City issued an Order to Demolish the Building to NYKBA. NYKBA did not comply with the demolition order. Subsequent to that Order, the City ticketed NYKBA for violating Chapter 56 of the Code. NYKBA pleaded guilty to the violation on August 27, 1999, and thereafter paid a fine on September 29, 1999.
On March 15, 2001, the City offered to dismiss the suit without prejudice if the prior developer of the Building, someone other than NYKBA, agreed to complete a list of various repairs and other items regarding the Building. The majority of these items were completed with the prior developer spending approximately $46,000 on completion of the repairs.
A bench trial in the City's suit was conducted on October 9, 2001. The Court issued its Findings of Fact and Conclusions of Law on November 15, 2001, finding that the Building was a public nuisance, permanently enjoining NYKBA from maintaining such a nuisance, requiring NYKBA to either comply with various sections of the Code within a prescribed time period or demolish the building within thirty days of the judgment and ordering a forced sale of the Building should NYKBA fail to comply with the judgment. This appeal followed.
A judge-tried case is 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. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). When setting aside a judgment on the ground that it is against the weight of the evidence, appellate courts should proceed with caution. Id. An appellate court should set aside a decree or judgment on the ground that it is against the weight of the evidence only if it has a firm belief that the decree or judgment is wrong. Id. When reviewing a bench-tried case, the appellate court's primary concern is the correctness of the trial court's result, not the route taken to reach it. Kopp v. Franks, 792 S.W.2d 413, 419 (Mo.App. S.D. 1990). Regardless of whether the trial court's proffered reasons are wrong or insufficient, if the correct result was reached, the appellate court must affirm. Smith v. Estate of Harrison, 829 S.W.2d 70, 73 (Mo.App. E.D.1992).
In its first point on appeal, NYKBA claims the trial court erred in granting the City a permanent mandatory injunction containing a provision ordering a forced sale of the Building because the City's pleadings did not contain such a request. NYKBA contends that this portion of the trial court's judgment should be stricken because the trial court acted beyond the scope of its power in authorizing a forced sale. It also claims that it was error for the trial court to adopt verbatim the City's proposed Findings of Fact and Conclusions of Law. In adopting the City's proposed order verbatim, NYKBA argues that the trial court rubber stamped the City's order without giving it much review.
The relief granted in a judgment is limited to that sought by the pleadings or else tried by the express or implied consent of the parties. Blaylock v. Clarida, 987 S.W.2d 18, 23 (Mo.App. W.D.1999) (citing Flowers v. Roberts, 979 S.W.2d 465, 472 (Mo.App. E.D.1998)). The powers of a court of equity to adjudicate are broad but limited to the claim for relief and issues made by the pleadings. Blando v. Reid, 886 S.W.2d 60, 67 (Mo.App. W.D.1994).
In this case, the City's pleadings did not contain a specific request for the forced sale of the Building. The City's Petition for Injunction contained the following prayer for relief:
Wherefore, [the City] prays for the Court to issue its permanent mandatory injunction enjoining [NYKBA] from allowing these nuisances to exist and from maintaining any condition which is prohibited under Chapters 18, 48, 56, or 80 of the Code of Ordinances of Kansas City, Missouri and ordering [NYKBA] to correct all such buildings, nuisances, property maintenance, and zoning code violations and deficiencies as may be shown to exist on the property at the time of the hearing in this matter and for such other and further relief as the Court deems just, including the costs of this proceeding.
The City argues that the trial court is not precluded from ordering a forced sale of the Building because it included a general prayer for relief — "such other and further relief as the Court deems just" in its petition. As a general rule, the prayer for relief is not part of the petition. Allen v. Allen, 433 S.W.2d 580, 583 (Mo.App. W.D. 1968). This rule is particularly applicable to equitable proceedings. Id. Although the prayer for relief is not part of the petition, the trial court is limited when awarding relief to a party to the relief requested in the pleadings or tried by the express or implied consent of the parties. Blaylock, 987 S.W.2d at 23. The evidence presented indicates that the City did not specifically request in the pleadings the forced sale of the Building.
The second manner in which a trial court may award relief is if it is tried by the express or implied consent of the parties. Id. The City contends that it asked for the forced sale of the Building at trial. The record reflects that the following exchange between the Court and Ms. Steinhauser, counsel for the City, took place:
The Court: Okay. Well, if you know, in a quest to make this much simpler then, if you have a non assailable order to demolish then aren't you here simply asking for the relief to have the order to demolish carried out?
Ms. Steinhauser: Not exactly because we are stating that there are some things wrong with the property outside of the demolition, the aesthetics. It is not pretty.
* * * * * *
What we are asking the Court to do is to step up above what the ordinance can do, which is just order it; and then we can demolish it if we have the money.
We are asking the Court to order that they — a mandatory injunction that they abate the nuisance on the property; and if they don't do that this Court has the ability to order the sale of the property.
The City argues that NYKBA's failure to object to this discussion constituted its implied consent to the forced sale remedy.
Missouri Supreme Court Rule 55.33(b) allows amendments to the pleadings that conform to the evidence. "When issues not raised by pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings." Rule 55.33(b). The implied consent rule, however, applies only when the presented evidence applies solely to a new issue and is not relevant to issues already present in the case. Shoemaker v. Houchen, 994 S.W.2d 40, 46 (Mo.App. W.D.1999). In effect, the implied consent rule provides that if evidence applying to a new issue is admitted, without a timely and specific objection, and the evidence is not relevant to issues already present, Rule 55.33(b) treats the new issue as having been raised in the pleadings. Id.
In the case at bar, when the issue of a forced sale of the Building was raised through statements by the City's counsel, NYKBA did not expressly object. The City contends that NYKBA impliedly consented to the forced sale by not objecting to it at the trial. NYKBA was not required to object to the forced sale issue because the City did not raise a new issue. The City's statements cannot be construed as a request for the court to order a...
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