Court of Appeals of Missouri, Eastern District, Southern Division
from the Circuit Court of Cape Girardeau County 16CG-CC00223
Honorable Robin E. Fulton
P. Page, Chief Judge.
City of Cape Girardeau ("City") appeals the
judgment of the trial court awarding heritage value damages
to Elmwood Farms, L.P., f/k/a Elmwood Farms Limited Family
Partnership, L.P. ("Elmwood") in the City's
condemnation proceeding against approximately 1.95 acres of
Elmwood's property to both create an easement for a
recreational trail parallel to and widen Bloomfield Road. The
City presents a case of first impression as to the trial
court's interpretation of Missouri's condemnation
law, which was revised in 2006. We affirm.
judgment of condemnation was entered in favor of the City
against the property and a commissioner's report was
issued awarding damages for fair market value. Elmwood filed
a motion to initially assess heritage value to the
commissioner's award. The Honorable Benjamin F. Lewis
held a hearing on July 19, 2016, and entered judgment denying
Elmwood's motion to assess heritage value. Elmwood
subsequently filed exceptions to the commissioner's
and the City entered into a tentative settlement agreement
and subsequent stipulation for consent judgment granting
Elmwood $90, 000.00 as fair market value for the property in
lieu of a jury award. A consent judgment reflecting this
agreement was entered, wherein the parties specifically
stipulated the Honorable Robin E. Fulton would determine
heritage value compensation. Judge Fulton held a hearing on
October 5, 2016, and entered judgment awarding Elmwood $45,
000 in heritage value. The City appeals.
City asserts three points on appeal. In its first point, the
City claims the trial court erred in its interpretation of
the legislative intent behind Section 523.039(3) RSMo
(2016)regarding the portion of property to be
considered when determining whether the property owner was
prevented from utilizing the property in substantially the
same manner as it was being utilized at the time of the
taking. In its second point, the City again contends the
court erred in its interpretation of the meaning of the
language in Section 523.039(3). Specifically, the City
challenges the trial court's finding that the statute
requires evaluation of the ability of the property owner to
exercise property rights in the "before" and
"after" condition of the property by improperly
compensating Elmwood for consequential damages already agreed
to as fair market value in the consent judgment. Finally, in
its third point, the City argues the trial court erred in
permitting a second hearing on the question of heritage value
because such a hearing is not authorized by Section 523.061.
threshold matter, we have a duty to consider whether we have
jurisdiction before we address the issues presented on
appeal, regardless of whether the question of jurisdiction is
raised by the parties. Cook v. Jones, 887 S.W.2d
740, 741 (Mo. App. S.D. 1994) (internal citation omitted).
The right to appeal is conferred upon parties by Section
512.020 RSMo (2016). The statute gives a party
"aggrieved by any judgment of any trial court," the
right to appeal.
where parties consent to a judgment, such judgment is not
appealable because the party is not "aggrieved."
See Nations v. Hoff, 78 S.W.3d 222, 223 (Mo. App.
E.D. 2002). Here, the October 27, 2017 judgment entered by
the Honorable Robin E. Fulton was entered pursuant to a
consent judgment between Elmwood and the City, as reflected
in the stipulation for consent judgment and the attached
tentative settlement agreement. The stipulation stated the
City elected to waive a jury determination and submit the
question of heritage value to Judge Fulton.
agree a true consent judgment that resolves all the issues by
agreement is not appealable, and would not confer a right to
appeal upon any party. Nations, 78 S.W.3d at 223.
However, in this case the consent judgment did not resolve
all the issues between the parties. Instead, in paragraph 2
of their agreement, the parties specifically required Judge
Fulton to determine the question of heritage value "as
prescribed by Chapter 523.010 RSMo., et seq., for a final
determination of damages." Thus, the City was
sufficiently "aggrieved" by Judge Fulton's
alleged failure to determine heritage value pursuant to
Section 523.039(3). Therefore, we have jurisdiction to
consider this appeal.
Standard of Review
the City's three points on appeal asserts a challenge to
the trial court's interpretation of the statutes
governing condemnation proceedings and the determination of
damages thereunder. The court's interpretation of a
statute is a question of law. Cook v. Newman, 142
S.W.3d 880, 886 (Mo. App. W.D. 2004). In both points one and
two,  the City contends the trial court
misinterpreted Section 523.039(3) in its assessment of
heritage value. Similarly, in point three on appeal, the city
alleges the court erroneously interpreted ...