Don Roth Development Co., Inc. v. Missouri Highway and Transp. Com'n, 46801
| Decision Date | 06 March 1984 |
| Docket Number | No. 46801,46801 |
| Citation | 668 S.W.2d 177 |
| Parties | DON ROTH DEVELOPMENT CO., INC., et al., Respondents, v. MISSOURI HIGHWAY AND TRANSPORTATION COMMISSION, Appellant. |
| Court | Missouri Court of Appeals |
Bruce A. Ring, John W. Maupin, Kirkwood, for appellant.
John H. Lamming, J.B. Carter, Clayton, for respondents.
This is an action pleaded and tried upon the theory of inverse condemnation. The action was originally filed by Don Roth Development Company, Inc., as the owner of property taken, against Missouri Highway and Transportation Commission (Defendant). On September 27, 1982, Page-West Realty, Inc. was added as a party plaintiff alleging that it owned the property at the time of taking. The trial resulted in a verdict and judgment for Page-West Realty, Inc.
On this appeal defendant raises four issues for our consideration. The issue we must consider first which is dispositive of the cause is the bar of the statute of limitations. Defendant also defends on the theory that the cause is one for slander of title and that the defendant is cloaked with sovereign immunity on such an action. The latter carries a two year statute under § 33.120, RSMo 1978.
We consider the pertinent facts on the issue under consideration. Defendant condemned 25 acres 1 of a 57 acre fully developed industrial park for highway purposes, which was originally purchased by Don Roth in 1970. The commissioners made an award of $1.7 million. Defendant believed that the award of a jury upon trial of exceptions would be considerably less. For the ostensible purpose of protecting the expected refund defendant filed a "Notice of Lis Pendens" with the Recorder of Deeds for St. Louis County on December 4, 1974. The "Notice of Lis Pendens" encompassed the entire 57 acre tract thus covering the approximate 32 acres that were not the subject of the condemnation action.
The 57 acre tract had been titled in Commercial Locations Company, Inc., a corporation. The stock of the corporation was owned by Don Roth. The 25 acre tract was transferred to Don Roth for the purpose of expediting disposition of the condemnation proceeding. When the condemnation suit was filed, the 25 acre plot was again titled in Commercial Locations Company.
On November 23, 1974, prior to the filing of the Notice of Lis Pendens, a potential buyer of lot 13 of the development executed an option contract for purchase of lot 13, a part of the 32 acre tract remaining after condemnation of the 25 acre tract. The buyer made a payment of $10,000.00 as earnest money to Commercial Locations Company. On December 2, 1974, two days before the lis pendens was filed, Commercial conveyed the 32 acre tract including lot 13 to Page-West Realty Company (Page-West). The stock of this corporation was also owned by Don Roth.
During further negotiations with respect to the sale of lot 13, the purchaser became aware of the lis pendens. The sale was not consummated for several reasons, among them the inability to transfer merchantable title because of the lis pendens. The potential purchaser forfeited the $10,000.00 payment.
Commission had agreed to make a partial release of the lis pendens that would release lot 13 from the lis pendens. The partial release, however, was not accomplished until after the potential purchaser of lot 13 abandoned its option to purchase the lot.
The instant suit was filed on September 10, 1976, by Don Roth Development Company, a corporation. The plaintiff alleged that it was the owner of the fee simple title to 32 acres of a certain described parcel of land; that on December 4, 1974, defendant filed a "Notice of Lis Pendens" in the condemnation case involving 25 acres of contiguous land, title to which was in Don E. Roth, a single person; that the lis pendens encompassed the 25 and the 32 acre tracts of land; that the filing of the lis pendens on December 4, 1974, constituted a taking and damaging of plaintiff's property in violation of Article I, Sec. 26, Const.Mo.1945.
Defendant's answer admitted the allegation that plaintiff held fee simple title to the 32 acre tract of land.
On September 27, 1982, plaintiff filed a motion to add Page-West Realty Co., Inc., as a party plaintiff, along with an amended petition in inverse condemnation. This petition alleged that Page-West was the holder of fee simple title to the 32 acre tract at the time the lis pendens was filed and that Don...
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Shade v. Missouri Highway and Transp. Com'n
...of the statute applies. Rose v. City of Riverside, 827 S.W.2d 737, 738 (Mo.App. W.D.1992); Don Roth Dev. Co., Inc. v. Mo. Highway & Transp. Comm'n, 668 S.W.2d 177, 179 (Mo.App. E.D.1984); see also Lewis v. City of Potosi, 317 S.W.2d 623, 628-29 Citing Don Roth, the court in Rose stated that......
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Shade v. Mo Hwy. & Tranp. Comm'n
...of the statute applies. Rose v. City of Riverside, 827 S.W.2d 737, 738 (Mo.App. W.D. 1992); Don Roth Dev. Co., Inc. v. Missouri Highway and Transp. Comm'n, 668 S.W.2d 177, 179 (Mo.App. E.D. 1984); see also Lewis v. City of Potosi, 317 S.W.2d 623, 628-29 (Mo.App. Citing Don Roth, the court i......
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