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City of Cape Girardeau v. Elmwood Farms, L.P.

Court of Appeals of Missouri, Eastern District, Southern Division

March 5, 2019


          Appeal from the Circuit Court of Cape Girardeau County 16CG-CC00223 Honorable Robin E. Fulton


          Lisa P. Page, Chief Judge.

         The 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[1] 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.


         A 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 report.

         Elmwood 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.


         The 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)[2]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.

         I. Jurisdiction

         As a 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.

         Generally, 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.

         We 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.

         II. Standard of Review

         Each of 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, [3] 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 ...

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