Two Pershing Square, L.P. v. Boley

• Citation: 981 S.W.2d 635
• Decision Date: 20 October 1998
• Docket Number: No. WD,WD
• Parties: TWO PERSHING SQUARE, L.P., a Missouri Limited Partnership, Respondent, v. Robert M. BOLEY, et al., Appellants. 55059.
• Court: Missouri Court of Appeals

Page 635

981 S.W.2d 635

TWO PERSHING SQUARE, L.P., a Missouri Limited Partnership, Respondent, v. Robert M. BOLEY, et al., Appellants.

No. WD 55059.

Missouri Court of Appeals Western District.

Oct. 20, 1998.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Nov. 24, 1998.

Application for Transfer Denied Jan. 19, 1999.

Thomas J. Fritzlen, Jr., Kansas City, for Respondent.

Sandra L. Schermerhorn, Michael A. LeVota, Kansas City, for Appellants.

Before SPINDEN, P.J., and ULRICH and EDWIN H. SMITH, JJ.

EDWIN H. SMITH, Judge.

Robert M. Boley, Director of the Department of Assessment of Jackson County, Missouri, and Michael Pendergast, Director of Collections and Ex-Officio Collector of Jackson County, Missouri, appeal the circuit court's judgment: (1) declaring that the Chapter 353 ¹ tax abatement benefit (the abatement) granted by the City of Kansas City, Missouri, to the respondent, Two Pershing Square, L.P., a Missouri limited partnership, on the property known as Two Pershing Square, was not subject to assessment for county property taxes; (2) permanently enjoining the appellants from considering the value of the abatement in determining the assessed value of the property; and (3) ordering them to pay to the respondent $93,712.04 as a refund of taxes paid under protest on the abatement for taxable years 1995 and 1996.

The appellants raise three points on appeal. In their first point, they claim that the trial court erred in declaring that the abatement was not part of the real property subject to assessment. In their second point, they claim that the trial court erred in denying their motion to dismiss respondent's first amended petition because it did not have jurisdiction to hear the petition in that the respondent had not exhausted its administrative remedies prior to seeking relief in the circuit court. In their third point, they claim that the trial court erred in holding that § 353.110, which provides a tax abatement for development projects in blighted areas, expressly prohibited the assessment of the abatement.

We dismiss for a lack of jurisdiction.

Facts

In 1974, Pershing Square Redevelopment Corporation entered into a contract with the City of Kansas City, Missouri, to develop property in the Union Station area for which it was granted a tax abatement benefit on the subject property pursuant to Chapter 353. The respondent purchased the property in 1984, entitling it to receive the benefit of the abatement granted on the property.

This litigation has its genesis in 1995 when the respondent received its property tax bill from Jackson County which valued the subject property at $44,335,000. The respondent believed that the subject property had been overvalued and sought relief from the Jackson County Board of Equalization (the JCBE), which reduced the assessed valuation of the property to $40,375,000. This decision was appealed by the respondent to the Missouri State Tax Commission (the Commission).

After filing its appeal, the respondent alleges that it learned that the County had included the value of the abatement in the assessed value of the property. As a result, the respondent filed its petition for declaratory judgment and injunctive relief in the Circuit Court of Jackson County, staying the appeal before the Commission. The parties stipulated that the value of the property, without considering the abatement, was $36,151,000 and that the value of the property considering the abatement was $39,754,000. The appellants filed a motion to dismiss the respondent's petition alleging that the trial court lacked jurisdiction to hear the case because the respondent had failed to exhaust its administrative remedies. The motion was denied. After hearing evidence, the trial court declared that the abatement was not subject to assessment, permanently enjoined the appellants from assessing it, and ordered the appellants to refund taxes paid by the respondent on the abatement in 1995 and 1996 plus statutory interest at the rate of 9 percent per annum.

The appellants filed their notice of appeal in the Missouri Supreme Court on October 10, 1997. By order dated October 29, 1997, the supreme court transferred the appeal to this court.

On December 8, 1997, Jackson County sent two checks to the respondent as a refund of the taxes paid under protest in 1995 and 1996. On January 15, 1998, the respondent filed its "Satisfaction of Money Judgment" pursuant to Rule 74.11. The respondent then filed a motion to dismiss the appellants' appeal, which was taken with the case, alleging that the voluntary payment of the judgment rendered their appeal moot.

This appeal follows.

Discussion

Before we can address the merits of the appellants' claims, we are first required to determine, sua sponte, our appellate jurisdiction. Burch Food Servs., Inc. v. Division of Employment Sec., 945 S.W.2d 478, 481 (Mo.App.1997).

The Missouri Supreme Court has exclusive appellate jurisdiction over cases involving the construction of revenue laws of this state. Mo. Const., art. V, § 3; Alumax Foils, Inc. v. City of St. Louis, 939 S.W.2d 907, 910 (Mo. banc 1997). To invoke the supreme court's exclusive jurisdiction, the case must involve (1) the construction (2) of a revenue law (3) of this state. Id. There is no dispute that the first two elements necessary to invoke the supreme court's exclusive jurisdiction are met in the case at bar. The third element, however, has not been met. To be a revenue law "of this state," the law must be "adopted by the general assembly to impose, amend or abolish a tax or fee on all similarly-situated persons, properties, entities or activities in this state, the proceeds of which are deposited in the state treasury. " Id. (Emphasis added.) Since this case involves property taxes imposed by and paid to the treasury of Jackson County, it does not involve the construction of a revenue law "of this state." As such, this court would have jurisdiction.

We must next address the respondent's motion to dismiss this appeal which was taken with the case. The respondent alleged in its motion to dismiss that this appeal was rendered moot when Jackson County voluntarily refunded the taxes paid on the abatement in 1995 and 1996, thereby satisfying the judgment entered against the appellants. In support of its motion, the respondent relies on State ex rel. Highway and Transportation Commission v. Christie, 890 S.W.2d 1, 2 (Mo.App.1994), which held that the "voluntary" satisfaction of a judgment renders any appeal from that judgment moot. Id. at 2. The appellants contend that the payment of the judgment here was not voluntary because it was made (1) under threat of execution by the respondent and (2) to avoid the accrual of statutory interest of 9 percent per annum on the judgment as allowed and ordered by the trial court pursuant to § 408.040. Thus, the issue for us to decide, in determining whether this appeal is moot, is whether the payment of the judgment against the appellants was voluntary.

"The mootness of a controversy is a threshold question in any appellate review of that controversy." State ex rel. Chastain v. City of Kansas City, 968 S.W.2d 232, 237 (Mo.App.1998). A case must be dismissed as moot whenever an event occurs that renders a decision unnecessary. State ex rel. Garden View Care Ctr. v. Missouri Health Facilities Review Comm., 926 S.W.2d 90, 91 (Mo.App.1996). A party may estop himself from appealing a judgment by performing any acts that are inconsistent with the right to appeal or which recognize the validity of the judgment. Steen v. Colombo, 799 S.W.2d 169, 174 (Mo.App.1990). Generally, the voluntary satisfaction of a judgment renders any appeal from that judgment moot. Christie, 890 S.W.2d at 2. An involuntary payment, however, does not render an appeal moot. Id. at 3 (citing Lumaghi v. Abt, 126 Mo.App. 221, 103 S.W. 104, 105-06 (1907)). A payment is considered involuntary when it is made to forestall collection and no supersedeas bond is posted. Christie, 890 S.W.2d at 3. A payment is also considered involuntary when it is made after execution or writ of garnishment in aid of execution has issued because it is presumed to have been made as a result of legal coercion. Kinser v. Elkadi, 654 S.W.2d 901, 903 (Mo. banc 1983). A payment made to cut off the accrual of interest on a judgment is also considered involuntary. Id.

The appellants contend that the payment of the judgment was involuntary because it was made under a threat of execution and not in recognition of the validity of the judgment of the trial court. However, we agree with the respondent that there was no real threat of execution here. The respondent sued, inter alia, to recover taxes paid by it under protest pursuant to § 139.031. As such, any judgment in their favor would be paid by Jackson County. Rule 81.09 provides that the filing of a notice of appeal stays the execution of a judgment against a county without the necessity of posting a supersedeas bond. As such, even assuming, arguendo, that the respondent did threaten execution on its judgment, this threat would not amount to legal coercion as there was no legal possibility that the threat could be carried out because any execution was stayed. Thus, the payment of the judgment was not made under a real threat of execution such that the payment of the judgment would be rendered involuntary.

The appellants also contend that the payment of the judgment was involuntary because it was made to prevent the accrual of statutory interest of 9 percent per annum on the judgment as ordered by the trial court pursuant to § 408.040. We agree. The appellants were under a duty to invest the protested taxes pursuant to § 30.260, which they did. This investment earned a return of 6.42 percent in 1995 and 2.27 percent in 1996. In this respect, the appellants contend that the judgment was paid to minimize the County's obligation to pay the statutory interest on the...