City of Kansas City v. Jordan
| Decision Date | 25 October 2005 |
| Docket Number | No. WD 64388.,WD 64388. |
| Citation | 174 S.W.3d 25 |
| Parties | CITY OF KANSAS CITY, Missouri, Respondent, v. Jimmy JORDAN, Appellant. |
| Court | Missouri Supreme Court |
Carl W. Bussey, Kansas City, MO, for appellant.
Sarah Baxter, Kansas City, MO, for respondent.
Before RONALD R. HOLLIGER, P.J., ROBERT G. ULRICH and JOSEPH M. ELLIS, JJ.
Jimmy R. Jordan appeals the judgment against him and in favor of Kansas City in the sum of $19,772.50 as an in personam personal debt for demolition costs of Mr. Jordan's property, located at 2328 Elmwood. The judgment grants Kansas City a tax lien in the amount of the judgment on the property as a special assessment lien in rem for demolition costs. The judgment further found that the city of Kansas City had not wrongfully demolished Mr. Jordan's building and, thus, was not liable for damages for wrongful demolition. Mr. Jordan raises three points on appeal. He contends that the judgment should be reversed because: (1) the City failed to give him proper notice; (2) the Kansas City Ordinance section 56-540, which addresses emergency situations in violation of code provisions, fails to comply with the Revised Statutes of Missouri and is thus invalid; and (3) the City failed to follow statutory procedures and, thus, wrongfully demolished his building. The judgment of the circuit court is affirmed.
David Miller is a construction code inspector for the City of Kansas City Dangerous Buildings. His duties as a dangerous building inspector include inspecting buildings to determine whether they are structurally sound, and if not structurally sound, whether repair of the building is economically feasible. If he determines that a building is dangerous or not economically feasible to repair, he initiates and advances the process, set forth in the statutes and ordinances infra, of getting the building demolished.
On June 1, Mr. Miller completed an initial inspection of the two story brick commercial building with a one story wood addition on the north end located at 2328 Elmwood and belonging to Jimmy R. Jordan.1 Mr. Miller observed that: the one story wood addition was in very poor shape; all of the sides were rotting and falling off the building; the back wall was collapsing outward; the chimney was falling; the brick building was in very bad shape; and the parapet2 was falling apart, with the entire front of the building falling away from the building. The building was boarded up, but he could see inside the south window and it appeared that the roof and second floor had collapsed. He spoke with some children who were playing across the street, and they told him that the roof and second floor had collapsed. Mr. Miller called the Fire Department for a ladder truck to observe the top of the building better. He took pictures of the collapsed roof. His pictures show that the chimney was leaning backwards and off to the side; several of the wood boards were missing from the sides of the building; the wood was in poor condition; the door frame was rotted and falling; part of the second floor was collapsed; floor joists were broken and missing; and the ceiling had fallen. Mr. Miller determined that the building was unsound. He concluded that the building's integrity had been compromised as there were no floor joists or roof to hold the building together. After determining that the building was dangerous, Mr. Miller posted dangerous building warnings on the front and back of the building. These warnings were "do not enter" warnings meant to keep the public out of the dangerous building. He then started the process for a priority demolition3 case. He prepared an Order to Demolish and submitted it to Paul Benner, the head of the Dangerous Buildings Department. Mr. Benner is the one responsible for making the final determination that an Order to Demolish is warranted.
Once the case had been opened, Mr. Miller did a feasibility report. A feasibility report assesses the current condition of a building and approximates the cost of making the building useable again. This approximated cost is the amount of money needed to make the building merely useable; it does not approximate the cost of a perfect or new building. In the feasibility report, the value of the building once it is made useable is also approximated. Mr. Miller testified that he does not determine the dollar amounts; Mr. Benner does that utilizing computations used by general contractors. The dollar amounts are determined using the square footage needing repair. The feasibility report indicated that Mr. Jordan's building would be worth $10,000-15,000 once it was restored to a useable condition. The report also concluded that $120,600 was required to bring the building up to a useable condition.4
Mr. Miller initially inspected Mr. Jordan's building because of its location. The City had been actively pursuing potentially dangerous buildings that were located near schools, parks, playgrounds, or any other place that might attract children. The City was concerned that children might be playing in and around dangerous structures and might be harmed. A school,5 playground, daycare, and park were all within the near vicinity of Mr. Jordan's building.
On June 9, 2000, Mr. Miller returned to Mr. Jordan's building at approximately 10:00 a.m. He had received a request for emergency response from the Fire Marshall. Upon arrival at Mr. Jordan's building, Mr. Miller found that the brick building's roof and the second floor had completely collapsed to the first floor. He further found that the east and north wall were in imminent danger of collapsing onto the public street and sidewalk. He documented his findings and took additional pictures. His pictures show that the entire roof had collapsed, as opposed to its condition on June 1 when just a portion had collapsed. He estimated that in the nine days between his visits, eighty percent more of the roof had collapsed and Mr. Miller characterized the building as "seriously worse" on June 9 compared to its June 1 condition. He also observed that the parapet, which overlooked a public sidewalk, was separating from the building and moving forward. He monitored the parapet and observed that it was gradually moving about every hour. His concern for the public was intensified because a large daycare for children and playground were located across the street from Mr. Jordan's building.
Mr. Miller determined that the building was a danger to the public and needed to be demolished pursuant to emergency demolition procedures; the Fire Marshall agreed. Mr. Miller called Mr. Benner and requested an Emergency Order to Demolish. Mr. Benner reviewed the information, which included the information he already had because of the regular demolition case that had been initiated June 1, and then sent an Emergency Order to Demolish to Mr. Miller and Mr. Jordan the morning of that same day, June 9, 2000. The Emergency Order stated that Mr. Jordan was ordered to vacate and immediately demolish the building. The Order further stated that it was an immediate order to demolish and that the City would hire a contractor to take action if necessary. Once he had the Order, Mr. Miller posted notice on the building that it was going to be demolished and then called contractors soliciting bids for the demolition work. After receiving several bids and selecting the lowest, the building was demolished at approximately 1:15 p.m. on the same day.
The lowest bid secured to demolish Mr. Jordan's building was $12,000. In addition, an administrative charge of $1000 and a fee of $500 to cut off the water were assessed. Thus, the demolition charge and fees assessed against Mr. Jordan's property totaled $13,500. Mr. Jordan has not yet paid any portion of this sum.
Mr. Jordan first acquired the property at 2328 Elmwood with his first wife in 1966. In 1976, Mr. Jordan's first wife transferred her interest in the property to him during the course of their divorce and Mr. Jordan is the sole owner of the property. In 1976, an appliance repair shop and two residential apartments occupied the building, although the building was vacant in the years immediately preceding the demolition. Mr. Jordan moved from Kansas City to Texas in May of 1989 because of a job transfer. Mr. Jordan received the June 9, 2000, Emergency Order to Demolish at his home in Texas on June 14, 2000.
After the demolition and assessment of costs, the City filed a Petition for Recovery of Personal Debt and to Enforce Lien of Special Tax Bill. Mr. Jordan answered and asserted his counterclaim that the City owed him damages for wrongful demolition. The case was tried by the trial judge on March 24, 2003, and judgment was entered April 7, 2003. Mr. Jordan's timely appeal followed. Due to an error in the trial court's transcription equipment, no recording was made of the trial and the case was sent back to the circuit court for rehearing. The matter was reheard on June 10, 2004, and the court entered the judgment in favor of the City and against Mr. Jordan. When Mr. Jordan sought to appeal this second judgment, it was discovered that, while the first judgment had disposed of all four of the City's counts in their petition, the second judgment failed to dispose of Counts III and IV.6 Thus, because the judgment did not dispose of all the counts, it was not final and appealable. Thereafter, the City dismissed its Counts III and IV. Because the counts not disposed of by the second trial were dismissed, the second judgment became final and appeal is proper.
The standard of review for a judge-tried case is governed by Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Patel v. Pate, 128 S.W.3d 873, 876 (Mo.App. W.D.2004). The judgment of the trial court will be affirmed unless it is not supported by substantial evidence, is against the weight of the evidence, or erroneously...
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