State ex rel. State Highway Commission v. Morganstein
| Decision Date | 11 September 1979 |
| Docket Number | No. 60863,60863 |
| Citation | 588 S.W.2d 472 |
| Parties | STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Respondent, v. Mary MORGANSTEIN, et al., Exceptions of Ardeis H. Myers, et al., Exceptions ofState Highway Commission of Missouri to Commissioners' award to Ardeis H.Myers, Flora E. Myers, William G. Partin, Trustee, A. H. Myers, Jr., Trustee, Lizzie BelleKroencke, Pleasant Hill Bank, Paul Metz, City Collector of Kansas City,Missouri, and George Lehr, Collector of Revenue of Jackson County, Missouri,Appellants. |
| Court | Missouri Supreme Court |
Harry P. Thomson, Jr., Thomas F. Fisher, Kansas City, for appellants.
Bruce A. Ring, Chief Counsel, Jefferson City, Earl H. Schrader, Jr., John B. Ewing, Jr., Mo. State Hwy. Comm., Kansas City, for respondent.
A. H. Myers, Jr., as the personal representative of the estates of Ardeis Myers, Sr. and Flora E. Myers, and as trustee under a deed of trust, 1 appeals from the judgment entered on jury-tried exceptions to a commissioners' award in this highway condemnation case. Transferred here after opinion in the Western District, Court of Appeals, the following questions are presented: (1) Did the answers given by the court to questions submitted by the jury during its deliberations constitute prejudicially erroneous supplemental instructions? (2) In view of condemnor-plaintiff's failure to timely move for substitution of the personal representative of a deceased condemnee who was a tenant by the entirety at the time of the commissioners' award, was it proper to render a joint judgment against the condemnees requiring repayment by them of amounts received under the commissioners' award in excess of the subsequent jury verdict? (3) Is remand for determination of individual liability proper, when one of the parties is no longer before the court? Affirmed in part, the cause is remanded for further proceedings as to certain aspects of the judgment hereinafter discussed.
The State Highway Commission petitioned to condemn certain land in which the principal interest was held by Ardeis Myers and Flora Myers as tenants by the entirety. Commissioners were appointed and on February 2, 1971 they assessed damages for the taking in the amount of $387,000. Plaintiff filed its timely exceptions to the commissioners' award, and the next day Ardeis and Flora Myers and A. H. Myers, Jr., Trustee, filed their "joint and separate exceptions." The monies were paid into the registry of the court and pursuant to application by the Myers, the court on February 23 ordered the circuit clerk to issue a check for $387,000 "payable to the order of Ardeis H. Myers, Flora E. Myers, William G. Partin, Trustee, A. H. Myers, Jr., Trustee, Lizzie Belle Kroencke, Pleasant Hill Bank, Paul Metz, City Collector of Kansas City, Missouri, and James P. Aylward, Collector of Revenue of Jackson County, Missouri." Nothing further in this record reflects what happened to the check's proceeds or the extent of any payees' interest therein. The petition for condemnation simply named each as a defendant.
On May 13, 1975, plaintiff moved to substitute Flora Myers and A. H. Myers, Jr., co-executors of the estate of Ardeis Myers, in the stead of Ardeis Myers, who had died January 20, 1974, some sixteen months earlier. Plaintiff filed no claim against the decedent's estate but its motion to substitute, filed more than 10 months following the first publication of letters testamentary, was sustained and the proposed substitution of parties ordered by the court.
At the commencement of trial in May, 1976, counsel for the Myers moved orally to dismiss the exceptions of Flora E. Myers as an individual and of Flora E. Myers and A. H. Myers, Jr. as co-executors of Ardeis Myers' estate. On that motion the court entered its order of dismissal. 2
The jury returned a verdict on the exceptions finding damages in the amount of $150,000, ($237,000 less than the commissioners' award) whereupon the court ordered "that . . . defendants pay the plaintiff, the State Highway Commission of Missouri the sum of Two Hundred Thirty-seven Thousand and no/100 Dollars ($237,000) plus interest . . . ."
Defendants Flora E. Myers, A. H. Myers, Jr., Trustee, and Flora Myers and A. H. Myers, Jr., as co-executors of the estate of Ardeis Myers, Sr., moved for a new trial or alternatively for modification of judgment asserting, among others, that the judgment was void "because there is no proration of the amount of excess on the amount of judgment entered against these defendants" and apportionment was not possible because no evidence appeared concerning division of the proceeds. Overruling these motions the court directed that the parties appear at a hearing to determine who received the proceeds of the commissioners' award. This appeal followed.
We first consider appellant's contention that the judge's answer to certain questions posed in a note sent by the jury during its deliberations constituted reversible error. Resolution of this issue requires examination of pertinent portions of the record reflecting that occurrence.
THE COURT: What has now been marked as Court's Exhibit 3 is a note from the jury which says as follows: Signed by the foreman.
The answer is no, isn't it?
MR. SCHRADER (Counsel for plaintiff): That requires a little fuller answer than that. This is a I will say this is a suit for damages. The people have not been paid for the land.
MR. THOMSON (Counsel for defendant): I think you're going to have to say that the people have not been paid for the land taken. You see what I think they are getting at, Your Honor and I am stating this so we all may consider the problem I think what they may be asking is this for damages to the remainder only, and have they been paid for the right-of-way or the portion actually taken. That is the way I would interpret that.
MR. CASLAVKA (Counsel for defendants): And for the land taken.
With regard to the second question, the answer is no.' Signed by me.
Any further suggestions?
MR. THOMSON: No.
Defendants contend the court's answer to the jury's question constituted an erroneous modification of the court's instruction on damages, MAI 9.02, in violation of Rule 70.02(b). That prejudice resulted because "the Court was in effect telling the jury that the defendants had not been paid for the land, and, thus, this was the total measure of damages." We do not believe the import of the court's answer was as defendants claim. The court in its response to the jury's first inquiry merely referred them to the instructions. While a trial court risks reversal to further instruct the jury outside MAI, the definition of damages in MAI 9.02, previously submitted as instruction No. 2, answered counsel's announced concern that the jury would consider damages only to the remainder and similarly defendants present contention that the jury considered damages only for the land taken. As to the jury's second question, counsel for appellant not only acceded to the court's one word answer "No," but suggested that the court should answer "that the people have not been paid for the land taken." The error, if any, in giving answer to the second question was invited by appellant who may not now be heard to complain. Myers v. Buchanan, 333 S.W.2d 18, 23 (Mo. banc 1960). Fletcher v. Cummings, 532 S.W.2d 890, 891 (Mo.App.1976).
We next consider appellant's claim that the trial court's failure to determine the several liability of those to whom proceeds were paid jointly, rendered the judgment void.
Defendants rely heavily on State ex rel. State Highway Commission v. Eilers, 445 S.W.2d 374, 377 (Mo.1969), wherein the Court described the apportionment scheme for distribution of condemnation awards under § 523.053, RSMo 1969.
In Eilers, as here, the trial court entered an In personam judgment requiring that defendants repay condemnor the amount by which the jury had reduced the commissioners' award. The court made no apportionment of several liability. However, as pointed out at 445 S.W.2d at 376, there was "no finding or recital in the judgment that this money or any portion of it was ever disbursed by the Circuit Clerk, nor (was) there any separate order or entry in the transcript which so indicates." Thus it was held that the action continued to be one In rem and the trial court's In personam judgment against the defendants was void. The Court discussed apportionment under § 523.053 as an appropriate procedure on remand, not as the Ratio decidendi for its order.
Appellant also refers to State ex rel. State Highway Commission v. Thelnor, Inc., 485 S.W.2d 443 (Mo.App.1972), Appeal after remand, 543 S.W.2d 229 (Mo.App.1976). There the owner of property encumbered by a deed of...
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