State ex rel., State Highway Com'n of Missouri v. Cool's Tall Tower, Restaurant and Marina, 13915
| Citation | 700 S.W.2d 114 |
| Decision Date | 07 October 1985 |
| Docket Number | No. 13915,13915 |
| Parties | STATE of Missouri, ex rel., STATE HIGHWAY COMMISSION OF MISSOURI, Plaintiff- Appellant, v. COOL'S TALL TOWER, RESTAURANT AND MARINA, et al., Exceptions of Osage Outdoor Advertising, Inc., et al., Defendants-Respondents. |
| Court | Court of Appeal of Missouri (US) |
Bruce A. Ring, Dennis J. Redel, Philip R. Pruett, Jefferson City, for plaintiff-appellant.
Alex Bartlett, Bartlett, Venters, Pletz & Toppins, P.C., Jefferson City, for respondent Osage Outdoor Advertising, Inc.
Richard N. Ward, Walter J. O'Toole, Jr., Kansas City, for amicus curiae City of Kansas City.
Does the State Highway Commission, after filing exceptions to the award of commissioners in a highway condemnation case, have the right to trial by jury over the objection of the landowner? The trial court answered the question in the negative. This court agrees with the commission that the trial court erred in so ruling.
This is a condemnation action brought by the State Highway Commission of Missouri, now the Missouri Highway and Transportation Commission, plaintiff-appellant, to acquire, for highway purposes, land owned by defendants-respondents Osage Outdoor Advertising, Inc., et al, in Camden County. Defendants-respondents collectively will be referred to as "Osage." The condemnation commissioners returned an award of $264,000. Both the commission and Osage filed exceptions to the award and demanded a jury trial. The commission deposited $264,000 in the registry of the trial court on November 28, 1978, the date of "taking."
The commission filed a timely application for a change of venue. In response to that application Osage filed a "Waiver of Jury to Obviate Change of Venue." In that document Osage asserted that the commission was not entitled to a jury trial, stated that Osage waived its right to a jury trial and objected to the commission's request for a change of venue. The trial court sustained the commission's application and the case was transferred to Laclede County. Osage then filed a "Motion to Strike [the Commission's] Request for a Jury Trial," and again took the position that the commission was not entitled to a jury trial. The court denied that motion which was later renewed and again denied.
The case was tried to a jury which returned a verdict of $150,000, on which the trial court entered judgment providing that the commission would recover from Osage the sum of $114,000 with interest from November 28, 1978. Osage filed a motion seeking an order setting aside the verdict and the entry of judgment by the court or, alternatively, a new trial. One of the grounds in that motion was that the commission had no right to a jury on the trial of its exceptions. The trial court held that the commission was not entitled to a trial by jury. The court set aside the verdict, vacated the "initial judgment" of $114,000 plus interest in favor of the commission, and entered a judgment assessing Osage's damages at $264,000.
The judgment recited that because the court had sustained Osage's motion on the ground that the commission was not entitled to a jury trial, "the court has not found it necessary to reach any of the other allegations of the motion or to consider the alternative relief requested in the motion and therefore expressly issues no rulings and makes no determinations with respect thereto." Paragraph 6 of Osage's alternative motion for new trial alleged that the verdict was against the weight of the evidence and paragraph 16 alleged that the verdict was "grossly inadequate." The trial court did not rule on either of those paragraphs.
The trial court held that § 523.060 1 did not afford the commission the right of trial by jury and that the commission was not accorded that right by constitutional provision or by another statute or by common law. In construing § 523.060, set out in footnote 2, the court relied primarily on In re East Park Dist. of Kansas City v. Dougherty, et al., 361 Mo. 829, 237 S.W.2d 118, 122 (1951). The commission appeals.
The commission's sole point is that the trial court erred in holding that the commission, after it had filed exceptions to the award of the commissioners, had no right to trial by jury although the commission had requested a jury trial. That ruling, argues the commission, was erroneous and invalidates the trial court's order setting aside the jury verdict and the judgment based thereon, and the $264,000 judgment entered by the court against the commission. Various constitutional and statutory provisions which are germane to the issue are set forth below. 2
Although the State Highway Commission was created in 1921, § 226.020, and has had the power of eminent domain since its inception, § 227.120, set forth in footnote 2, the instant issue is one of first impression. The excellent briefs of able counsel on both sides and the independent research of this court fail to lead to any Missouri appellate decision where the landowner has challenged the commission's right to trial by jury. Inventive arguments have been advanced by both sides, and although this court rejects the conclusion advanced by Osage, and some of the reasoning of the commission, their respective views will be outlined.
The commission argues that "under the plain meaning of § 523.060" the commission, as plaintiff, is entitled to a trial by jury because the words "individual or corporate," as used in § 523.060, modify the word "defendant" only and not the words "plaintiff and defendant," and the word "any" modifies the word "plaintiff." 3 This court questions the soundness of that grammatical argument but finds it unnecessary to rule upon its validity. The commission further argues that § 523.060 "was enacted to expand the right to jury trial to individual defendants [in condemnation proceedings]" and that the legislature did not intend "to limit the right [to a common law jury] to individual and business corporate defendants, or to exclude such right from government condemnors." This court agrees with that argument. Finally, the commission argues that it was entitled to a jury because it had made a timely request for a jury and "no statute exists precluding the commission from requesting a jury trial," on both of which this court agrees, and that the trial court ignored Section 22 and Section 26 of Article I, Missouri Constitution of 1945, § 523.050, § 510.190, Rule 86.08, and various cited cases, "all of which give the commission the right to a jury trial in eminent domain cases." This court holds that the commission, by reason of § 523.050, had the right to trial by jury.
Osage argues that the commission was not entitled to a jury trial because "there is no right to a jury trial in condemnation cases at common law," and "the right to a jury trial is for the protection of those who are subject to governmental authority" and not for the protection of the governmental authority itself. Osage also argues, based primarily upon the construction of § 523.060 contained in In re East Park Dist. of Kansas City v. Dougherty, supra, that the commission is not a "corporate" plaintiff as used in § 523.060. Osage also argues that even if § 523.050, which was enacted in 1873, could be construed to accord the commission a right to trial by jury, § 523.060, which was enacted in 1943, supersedes § 523.050. Osage further argues that the commission cannot rely on Rule 86.08 because the right to a jury trial is governed "by common law, constitutional laws and statutory law, and not by Supreme Court rule." Osage cites Section 5 of Article V of the Missouri Constitution providing that Supreme Court rules "shall not change substantive rights, or ... the right of trial by jury...."
It should be noted that the commission does not dispute Osage's contention that the commission is not a corporation of the type referred to in § 523.060.
The interrelationship of the various constitutional provisions, statutes, and rules set forth in footnote 2 must be considered in light of the serpentine legal history of condemnation proceedings in which the condemnor is a constitutional charter city and the condemnee is an individual. That alignment and that combination of legal capacities have led to many decisions, some of which are relied upon by both sides to the instant appeal. It will be seen that the right of an individual condemnee to a jury in condemnation proceedings, in which the condemnor is a constitutional charter city, has, by reason of a series of enactments, flickered on and off--"now you see it, now you don't."
"There is no constitutional right under the Federal Constitution to a jury trial in a condemnation proceeding." 27 Am.Jur.2d Eminent Domain § 407, p. 289. Although that statement is generally true, a situation may arise, as will be seen, where an individual is entitled to a jury as a matter of equal protection of the laws, where a legislative act accords that right to a corporate condemnee but does not purport to accord it to an individual condemnee.
So far as the state constitution is concerned, our supreme court said, years ago, ...
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...within the period prescribed by the rules." State ex rel., State Highway Com'n of Missouri v. Cool's Tall Tower, Restaurant and Marina , 700 S.W.2d 114, 124 (Mo. App. S.D. 1985) (internal quotations omitted). Accordingly, the judgment is reversed and the case remanded with directions to the......