St. Louis County v. Boatmen's Trust Co.
| Decision Date | 15 June 1993 |
| Docket Number | No. 62219,62219 |
| Citation | 857 S.W.2d 453 |
| Parties | ST. LOUIS COUNTY, Missouri, Plaintiff, v. BOATMEN'S TRUST CO., et al., Defendants/Appellants, v. CONSTRUCTION DEVELOPERS, INC., Defendant/Respondent. |
| Court | Missouri Court of Appeals |
Robert B. Hoemeke, Robert J. Will, St. Louis, John G. Young, Jr., Clayton, for defendants, appellants.
Gerard T. Carmody, Elizabeth C. Carver, Mark B. Leadlove, St. Louis, for defendant/respondent.
Appellants, Boatmen's Trust Company, et al., appeal from an Order of Distribution entered in the Circuit Court of St. Louis County apportioning 95.4% of a Condemnation Commission's awards of damages to respondent, Construction Developers, Incorporated ("CDI"). 1 We reverse.
On April 15, 1991, the plaintiff in this action, St. Louis County, 2 filed a Condemnation Petition in the Circuit Court of St. Louis County. Plaintiff was seeking to acquire two parcels of land, part of the St. Louis Galleria Shopping Center's ("Galleria") parking lot, for purposes of widening Brentwood Boulevard and installing a right turn-lane from eastbound Clayton Road to southbound Brentwood Boulevard. This road widening was required by plaintiff to accommodate the additional traffic generated by the Galleria expansion.
The parcels of land subjected to the condemnation were parts of larger tracts owned in fee simple by separate entities and leased to CDI. The Sansone Tract, originally leased by Andrew Sansone to Stix, Baer and Fuller Co., 3 is now owned by a trust, with Boatmen's Trust Co. as trustee and successor in interest to Andrew Sansone. This tract, consisting of 34,075 square feet before the taking, became the subject of the lease in 1952. Said lease was for an initial term of 25 years, with renewal options for a second and third 25-year period. 4 The rent for the Sansone Tract was $4,000.00 per year for the first 25 years, and $5,000.00 per year during each of the option periods. Parcel No. 1, the condemned portion of the Sansone Tract, consists of 3,026 square feet of real estate.
The second tract of land, originally consisting of 56,813 square feet, is owned by William E. Cribbin as to an undivided 2/3 ownership interest and Kathryn Shirk Seidel, Julius A. Seidel, Jr., James E. Seidel and Richard B. Seidel, Trustees of the Julius A. Seidel Marital Trust, as to an undivided 1/3 ownership interest. This tract was the subject of a lease entered into by Eugenia Seidel and Stix, Baer and Fuller, Co. on June 30, 1953. 5 The lease was for an initial term of 50 years, at $10,800.00 per year, with an option to extend the lease for an additional 25 years at $12,000.00 per year for each year of this option period. Parcel No. 2, the condemned portion of the Cribbin-Seidel Tract, consists of 4,277 square feet of property.
Hycel Partners I, L.P. ("Hycel") is the developer and owner of the Galleria. Hycel, CDI, and other Galleria tenants and store owners are signatories to an Amended and Restated Reciprocal Easement Agreement ("REA"). 6 Pursuant to the REA, CDI was required to irrevocably dedicate the Sansone Tract and the Cribbin-Seidel Tract for use by the REA signatories and Galleria customers as free parking for the term of the REA. 7 Additionally, the REA restricts CDI from using the two tracts for any purpose other than parking and restricts CDI from conveying or otherwise alienating or causing a default under the current leases.
Pursuant to the filing of St. Louis County's Condemnation Petition, the circuit court issued its Findings of Fact, Conclusions of Law and Order of Condemnation for Parcels No. 1 and 2 on July 22, 1991. At the same time, the court appointed Commissioners to determine the fair market value of the parcels to be awarded as damages. On July 30, 1991, the Commissioners convened a hearing. The Commission determined the fair market value of Parcel No. 1 to be $131,950.00 and the fair market value of Parcel No. 2 to be $149,695.00. The Commissioners' Awards were paid by St. Louis County into the registry of the circuit court on July 31, 1991. 8
Neither lease at issue here addresses the disposition of proceeds from a condemnation of all or part of the leasehold estate. Because of this, Boatmen's and CDI, and Cribbin, the Seidels and CDI, were required either to agree to an apportionment of the Commissioners' awards, or to move the court for such a determination. On April 20, 1992, the parties herein filed motions for distribution with the circuit court.
On April 20th and 21st, 1992, a hearing was held to determine the order of distribution. The primary testimony at this hearing came from two appraisal experts: One testifying on behalf of CDI; and the other testifying on behalf of the fee simple owners. Although the testimony of the two coincided regarding some key elements, the differences are what brought this appeal before us.
The experts agreed the method to be utilized in determining the parties' interests was the "bonus value" method of valuation. They confirmed the "bonus value" method of valuation requires a determination of the difference between the economic rental 9 and the contract rental 10 for the affected leasehold, which difference is discounted to present value. If the economic rental for a leasehold estate exceeds the contract rental, the economic advantage enjoyed by lessee under the lease is referred to as the "bonus value." The lessee is entitled to compensation for the "bonus value."
The experts also agreed the highest and best use for the parcels was as free parking for the Galleria. Finally, the two established the only method which could be used to determine the economic rental for the parcels required a "Sales Comparison Approach." 11 At this point, the experts' testimony diverged.
The appraiser for CDI provided evidence of thirteen properties which he described as comparable to the properties at issue. Based on the market value of these alleged comparables, CDI's appraiser opined the property at issue had a market value of $3.00 per square foot. Because the contract rent for the Sansone Tract was $.12 a square foot for the first 25 years, increasing to $.15 a square foot for the two additional 25 year renewal periods, and $.19 a square foot for the first 50 years of rent on the Cribbin-Seidel Tract, increasing to $.21 a square foot for the 25 year renewal period, the expert for CDI contended CDI had a "bonus value" under the leases for the two tracts of land. Based on this determination that a "bonus value" existed, CDI submitted its Findings of Fact and Conclusions of Law to the court suggesting that 95% of the Commissioners' Awards be apportioned to CDI, and 5% apportioned to the fee owners.
Appellants' appraiser, on the other hand, could find no comparable leasehold interests or sales of leasehold interests of comparable properties. Additionally, the expert for appellants found CDI had lost nothing through the taking. As such, he concluded there was no "bonus value" associated with the leases at issue. Relying on the findings of their expert, Boatmen's and Cribbin-Seidel submitted Findings of Fact and Conclusions of Law whereby CDI, as lessee, received 0% of the Commissioners' Awards, with the fee owners being apportioned 100% of the awards.
On June 3, 1992, the circuit court entered its order holding there was, indeed, a "bonus value" under the leases. The court adopted, with only slight modification, the Findings of Fact and Conclusions of Law submitted by CDI. The court indicated it viewed the testimony of CDI's appraiser to be more credible than that of appellants' expert, and apportioned 95.4% of the Commissioners' Awards to CDI, and the remaining 4.6% to Boatmen's and Cribbin-Seidel for their respective parcels.
In addition, the court found the Commissioners' Award for Parcel No. 1 was based on incorrect square footage. As such, the Commissioners awarded $131,950.00 for the taking of Parcel No. 1. The court held the correct award should have been $105,910.00. The court then went on to apportion the award based on the original finding of the Commissioners.
Boatmen's and Cribbin-Seidel now appeal. 12 Basically, appellants contend the trial court erred in accepting the percentages for apportionment submitted by the appraiser for CDI. Appellants argue this appeal does not go to the credibility of the witnesses; rather, it asks simply for a proper application of the law to the facts available.
Our review here is governed by the standard set out in Murphy v. Carron, 536 S.W.2d 30, 31 (Mo. banc 1976). We will sustain the action of the trial court "unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law or unless it erroneously applies the law." Id. This court will utilize its power to set aside judgments of the trial court with caution and only upon a firm belief that the judgment is erroneous. Id.
Moreover, the admission or exclusion of evidence is soundly vested within the discretion of the trial judge. Del-Mar Redevelopment Corp. v. Assoc. Garages, 726 S.W.2d 866, 869 (Mo.App., E.D.1987). Errors regarding the admission or exclusion of evidence will result in reversal only if there is substantial and glaring injustice. Id. Conflicting opinions of experts must be weighed by the trier of fact and considered in light of matters such as the knowledge, experience, and attention given to the case. Richard B. Curnow, M.D., Inc. v. Sloan, 625 S.W.2d 605, 607 (Mo. banc 1981). Whether an expert's opinion is based upon and supported by facts in evidence sufficient to support that opinion is a question of law for the court. Holtgrave v. Hoffman, 716 S.W.2d 332, 335 (Mo.App., E.D.1986).
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