State ex rel. State Highway Commission of Missouri v. Armacost Motors, Inc.

• Decision Date: 31 May 1977
• Docket Number: Nos. KCD,s. KCD
• Citation: 552 S.W.2d 360
• Parties: STATE of Missouri ex rel. STATE HIGHWAY COMMISSION OF MISSOURI, Plaintiff-Respondent, v. ARMACOST MOTORS, INC., et al., Defendants, and Airport-Auditorium Motel Corporation, Defendant-Appellant. 27972 to KCD 27976.
• Court: Missouri Court of Appeals

Page 360

552 S.W.2d 360

8 A.L.R.4th 1191

STATE of Missouri ex rel. STATE HIGHWAY COMMISSION OF MISSOURI, Plaintiff-Respondent, v. ARMACOST MOTORS, INC., et al., Defendants and Airport-Auditorium Motel Corporation, Defendant-Appellant.

Nos. KCD 27972 to KCD 27976.

Missouri Court of Appeals, Kansas City District.

May 31, 1977.

Frank P. Sebree, Frederick Beihl, Richard D. Woods, Shook, Hardy & Bacon, Kansas City, for defendant-appellant, Airport-Auditorium Motel Corp.

Earl H. Schrader, Jr., Asst. Counsel, Missouri State Highway Commission, Kansas City, for plaintiff-respondent.

Before WASSERSTROM, P. J., and SOMERVILLE and TURNAGE, JJ.

PER CURIAM.

As eventually becomes apparent, this case has had a hoary history. Airport-Auditorium Motel Corporation (hereinafter referred to as condemnee) appeals from five judgments entered by the trial court on March 17, 1975, for damages for the taking of five parcels of land in their entirety in a condemnation action initiated by the State of Missouri on the relation of the State Highway Commission of Missouri (hereinafter referred to as a condemnor). One broad pervasive issue is common to each appeal and the five separate appeals have been consolidated for purpose of appellate disposition. Briskly stated, condemnee claims the trial court erred in not treating the five parcels of land as a single assembled tract for the purpose of assessing condemnee's damages.

The key facts are both numerous and somewhat complicated. In 1951 the City Planning Commission of Kansas City, pursuant to a contract with the State Highway Commission of Missouri, published and widely disseminated a book entitled "Expressways of Greater Kansas City." Among other things it set forth the proposed route of what has been commonly referred to as the Crosstown Freeway Project. Condemnee's chief executive officer admitted that he had knowledge of the contents of the book entitled "Expressways of Greater Kansas City" before condemnee acquired any of the five parcels of land, and therefore condemnee had prior knowledge that slightly less than one-half of the combined area of the five parcels of land, which condemnee subsequently acquired, lay in the path of the proposed route of the Crosstown Freeway Project. Title to four parcels of land vested in condemnee in February and March of 1963 and title to the fifth parcel of land vested in condemnee in April of 1963. No effort was made by condemnor to contact condemnee for the purpose of negotiating acquisition of the latter's property until the interim between the vesting of title to the first four parcels and the fifth parcel. Suffice it to say negotiations were not fruitful. Condemnor's petition for condemnation was filed August 27, 1963. Condemnee's chief executive officer disclaimed having had any knowledge that all five parcels of land would be condemned in their entirety until condemnee was served with a summons and copy of the condemnation petition. Certain evidence introduced by condemnor infers that condemnee had knowledge that condemnor proposed to condemn a majority of the area represented by the five parcels of land before their assemblage was completed. On the other hand, an overview of all the evidence reveals that condemnee's chief executive officer consistently expressed hope that changes and alterations in the proposed freeway project could or would be made whereby condemnee might retain sufficient acreage to go ahead with the commercial project for which the land was being assembled, and evidence appears in the record from which it can be inferred that this hope was not entirely misplaced.

The five parcels of land owned by condemnee were individually described in separate paragraphs of condemnor's petition. In addition to naming condemnee as defendant, the petition also named the city and county collectors and the trustees and beneficiaries of various deeds of trust as defendants.

The report of the commissioners was filed November 8, 1963. Separate amounts were fixed and awarded for each of the five parcels of land owned by condemnee. The separate amounts fixed and awarded by the commissioners, and the description and size of the various parcels to which they relate, are as follows:

Parcel 1: $144,000.00 (1426-32 Central 29,174.9 square feet)

Parcel 2: $85,200.00 (1433 Broadway 14,200 square feet)

Parcel 3: $60,300.00 (1425 Broadway 10,530.7 square feet)

Parcel 4: $60,375.00 (1417-23 Broadway 10,650 square feet)

Parcel 5: $31,650.00 (1415 Broadway 5,325 square feet)

The amounts awarded by the commissioners were apparently paid into court on November 8, 1963, as parties stipulated that the date of taking of the five parcels of land was November 8, 1963.

Condemnee filed exceptions to the Commissioners' Report as to all five parcels. Thereafter, by written motion (hereinafter referred to as motion to consolidate), condemnee moved the trial court "to consolidate all its exceptions into one action and try them together as exceptions relating to one assemblage leading to one verdict by the jury." An extensive evidentiary hearing was held in conjunction with the motion.

In addition to many of the facts heretofore mentioned, evidence introduced at the hearing further revealed the following facts deemed germane to the issue on appeal.

In 1953, condemnee, acting through "related" entities, launched efforts to acquire a tract of land in the general area in question which would be suitable for construction of a motel. The general area in question was selected as a prime location because of its proximity to the Municipal Auditorium located in "downtown" Kansas City. Throughout the remainder of the 1950's, condemnee's chief executive officer contacted over twenty motel and hotel operators, including the "Sheraton Corporation", the "Hilton Corporation", and the "Hotel Corporation of America", regarding location, size, internal facilities and parking space for a successful motel operation. Additionally, he worked with several national real estate firms which specialized in hotel and motel developments. These efforts culminated in condemnee's acquisition of the five parcels of land which are the subject of this condemnation action. ¹

All five parcels of land were vacant and unimproved on the date of their taking and had been for some time prior thereto. All five parcels of land were contiguous although an alley ran between the four parcels of land which faced west and fronted on Broadway and the fifth parcel of land which faced east and fronted on Central. Moreover, all five parcels of land were in an area zoned M-1 (light industry) which permitted their use for motel purposes.

On October 27, 1971, the trial court denied condemnee's motion to consolidate. Shortly thereafter, condemnee delivered a letter to the trial court (treated by the trial court and the parties as a supplemental motion) wherein, as construed by the trial court, condemnee also asked the trial court to rule that "the various tracts of land may be enhanced in value because of the 'reasonable probability' of their being combined in the 'reasonably near future.' " On December 2, 1971, the trial court amended its original order denying condemnee's motion to consolidate and entered the following order:

"The order of this Court entered October 27, 1971, is amended to read as follows:

"Exceptions to the award of the Commissions for tracts mentioned in paragraphs 25.0, 26.0, 27.0, 28.0 and 29.0 of plaintiff's petition, in each of which defendant Airport-Auditorium Motel Corporation is alleged to own an interest, are consolidated for trial before one jury. However, defendant's motion that the cases be tried as if all the land constitutes one single tract for the purpose of arriving at values is overruled. The jury will be instructed to return a separate verdict with respect to each tract, and evidence rulings will be consistent with the above orders.

"Defendant's motion, in the form of a letter, filed November 15, 1971, that the Court rule that the various tracts of land may be enhanced in value because of the 'reasonable probability' of their being combined in the 'reasonably near future' is overruled. The Court concludes that defendant knew, or should have known, that the land would be taken by plaintiff, before the parcels were combined in one owner, and before there was any relationship between the various owners that might give rise to the reasonable probability of their being combined in the reasonably near future.

"This order is designated as a final order for the purpose of appeal." (Emphasis added.)

Condemnee took an appeal from the amended order to the Supreme Court of Missouri. State ex rel. State Highway Comm'n v. Armacost Motors, Inc., 502 S.W.2d 330 (Mo.1973). Notwithstanding the trial court's designation of the order "as a final order for the purpose of appeal", the Supreme Court dismissed condemnee's appeal for lack of a final judgment for purpose of appeal.

After the case was relodged in the trial court, condemnor and condemnee executed a protracted "Stipulation" which, inter alia, preserved for purpose of appeal viability of the pervasive issue now presented. Condemnee's exceptions were bench tried pursuant to the "Stipulation" and five judgments were entered, one as to each parcel of land. Each judgment awarding damages was rendered solely in favor of condemnee. As the amount awarded to condemnee in each of the five judgments was less than the respective amount fixed by the commissioners in their report, the trial court entered judgment in favor of condemnor and solely against condemnee for the amount by which each judgment in favor of condemnee and against condemnor exceeded the amount of damages respectively fixed by the Commissioner's Report "with interest" thereon "at the rate of six per cent (6%) per annum from and after January 1, 1964." Condemnor did not appeal from any of the five judgments entered by the trial court.

Disposition of this appeal is...