State of Missouri, ex rel., Sharon Watson, Relator v. The Honorable Thea Sherry, Circuit Judge, 21st Circuit

In the Missouri Court of Appeals
Eastern District
WRIT DIVISION SIX
STATE OF MISSOURI, ex rel., ) No. ED101151
SHARON WATSON, et al., )
) Circuit Court of St. Louis County
Relators, ) Cause No. 07SL-CC01335
)
v. )
) Writ of Prohibition
THE HONORABLE THEA SHERRY, )
Circuit Judge, 21st Circuit, )
)
Respondent. ) Filed: July 8, 2014
I. Introduction
Relators, Sharon A. Watson, ("Sharon Watson"), Clinton L. Watson ("Clinton Watson"), Diarra
K. Morris ("Morris"), as Personal Representative for the Estate of the deceased Juanita Watson, and Jelani
Aitch ("Aitch") (collectively, "Relators") filed a Petition for Writ of Prohibition with this Court, seeking
to prohibit the enforcement of an Order on Writ of Possession of February 26, 2014, by Circuit Judge
Thea A. Sherry ("Respondent") in the underlying lawsuit pending in the Circuit Court of St. Louis
County, Case No. 07SL-CC01335, City of Richmond Heights, Missouri v. Clinton L. Watson, et al.,
("Lawsuit"). The Order on Writ of Possession ordered possession of the property at 1705 Berkeley
Avenue, Richmond Heights, to be delivered on March 5, 2014, to the City of Richmond Heights ("the
City"), based on an Order of Condemnation entered on March 19, 2008. We previously issued a
Preliminary Order in Prohibition on March 4, 2014. The Preliminary Order in Prohibition hereby is made
absolute.
II. Procedural Background
The history of this case begins with the July 12, 2006 adoption, and August 12, 2006 effective
date of Ordinance 4991, Ordinances of the City of Richmond Heights, Missouri, which the Richmond
Heights City Council adopted pursuant to the Real Property Tax Increment Allocation Redevelopment
Act, Sections 99.800 to 99.865, Revised Statutes of Missouri, (the "TIF Act"). The TIF Act authorizes
municipalities to utilize eminent domain to take private property to facilitate redevelopment. 1 Ordinance
4991 designated a portion of the City consisting of approximately 63 acres as a redevelopment area,
found that such area was a blighted area, and approved the redevelopment plan and redevelopment project
for the Hadley Township redevelopment area, among other things. 2
In March 2008, Respondent entered its Order of Condemnation condemning the property in the
redevelopment area, including the property at 1705 Berkeley Avenue, Richmond Heights ("the
Property"). Those with an ownership interest in the Property and named as defendants in the
condemnation proceeding include: Sharon Watson, in co-tenancy with others, by operation of law, by
direct descent in succession of title, by operation of trust, or otherwise; Sharon Watson's brother Clinton
Watson, in co-tenancy with others, by operation of law, by direct descent in succession of title, by
operation of trust, or otherwise and Successor Trustee of the George T. and Mary E. Watson Trust dated
November 18, 1997; Juanita Watson, deceased, whose daughter Morris became the duly appointed
personal representative of the Estate of Juanita Watson and thereby took her ownership interest in the
Property in co-tenancy with others, by operation of law, by direct descent in succession of title, by
operation of trust, or otherwise; Georgia Crenshaw ("Crenshaw"), the sister of Sharon and Clinton
Watson, in co-tenancy with others, by operation of law, by direct descent in succession of title, by
operation of trust, or otherwise (who is not a party to this writ proceeding); and Aitch, son of Sharon
1
Article I, section 28 of the Missouri Constitution provides that ". . . when an attempt is made to take private
property for a use alleged to be public, the question whether the contemplated use be public shall be judicially
determined without regard to any legislative declaration that such use is public."
2
The current development site at issue consists of 19.52 acres.
2
Watson and has resided in the Property for periods since 1973 with the permission of Sharon Watson,
Clinton Watson, Morris and Crenshaw. 3
On May 13, 2008, the court-appointed commissioners filed their commissioners' report assessing
damages, and sent notice to the Relators of the same. Damages were assessed at $322,344 for the
condemnation of the Property. The City did not pay the commissioners' award for damages until
December 2, 2013, at which time the court sent notice to the Relators by certified mail of the deposit of
the commissioners' award into the registry of the court. The notice of payment stated that the City
deposited $429,962.74 as full payment of the commissioners' award, plus interest for the condemnation of
the Property.
On or about December 30, 2013, the City filed its Motion for Writ of Possession against Aitch,
seeking an Order on Writ of Possession to deliver possession of the Property to the City on or before
March 5, 2014. The City asked to pass the hearing that was originally scheduled on its motion for
January 24, 2014, but renewed the motion and a hearing was held on February 26, 2014. Respondent
entered an Order directing the sheriff of St. Louis County to deliver possession of the Property to the City
on or before March 5, 2014. Aitch, appearing pro se at the hearing, argued, inter alia, that the court
lacked jurisdiction to hear the motion.
On March 4, 2014, Relators filed their Petition for Writ of Prohibition, along with Suggestions in
Support thereof, seeking to prohibit Respondent from taking any further action in the underlying
condemnation matter other than dismissing the Petition in Condemnation because the City's legislative
authority to proceed with the condemnation of the Property had lapsed and expired, and Respondent
therefore had no authority and acted in excess of the court's jurisdiction when entering an Order on Writ
of Possession. Relators explained that the City had only five years from the date of the adoption of
3
Anthony and Mary Reyes also claimed an interest in the Property as a result of a judgment of $652,921.06
rendered in July 2006 in the United States District Court for the Northern District of California. Because this was
registered as a foreign judgment in the Circuit Court of St. Louis County in August 2006, the Reyeses were also
defendants in the condemnation action. This Court affirmed the Circuit Court of St. Louis County's 2007 judgment
holding that the Reyeses' "execution sale of the premises 1705 Berkley Avenue should proceed without further
delay." Watson, et al. v. Reyes, et al., 249 S.W.3d 240 (Mo. App. E.D. 2008).
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Ordinance No. 4991 within which to "acquire by eminent domain" Relators' Property, and the City had
not "acquired" the Property before its legislative authority lapsed and expired. This Court issued a
Preliminary Order in Prohibition on the same day, ordering Respondent to answer Relator's Petition and
also refrain from all actions regarding the premises until further order of this Court. Thereafter,
Respondent filed an Answer and Suggestions in Opposition to the Petition for Writ of Prohibition. The
parties also filed briefs pursuant to Rule 84.24 of the Rules of Civil Procedure.
III. Discussion
A. A writ of prohibition is appropriate where parties will suffer irreparable harm.
The power to issue remedial writs derives from Article V, Section 4.1 of the Missouri
Constitution. Writs of prohibition are issued in three general categories: 1) where there is an usurpation
of judicial power because the trial court lacks personal or subject matter jurisdiction; 2) where there exists
a clear excess of jurisdiction or an abuse of discretion such that the court lacks the power to act as
contemplated; or 3) where there is no adequate remedy by appeal. State ex rel. Dir. of Revenue v. Kinker,
209 S.W.3d 1, 2 (Mo. App. E.D. 2006) (citing State ex rel. Dir. of Rev. v. Mobley, 49 S.W.3d 178, 179
(Mo. banc 2001)). Prohibition is a discretionary writ that may be issued to prevent an abuse of judicial
discretion, to avoid irreparable harm to a party, or to prevent exercise of extra-jurisdictional power. State
ex rel. Broadway-Washington Assocs., Ltd. v. Manners, 186 S.W.3d 272, 274 (Mo. banc 2006)
(abrogated on other grounds).
The City argues that a writ of prohibition is not appropriate because Relators could have appealed
the issue of whether the TIF Act's Section 99.810.1(3) precludes the City from the acquisition when
Relator Clinton Watson argued the issue in his "Motion for Assessment of Heritage Value and
Assessment of Interest" filed on July 19, 2012, which was after 2011, the expiration of five years under
the statute at issue. The circuit court's August 14, 2012 determination that the court "lacks jurisdiction to
handle anything other than payment for property" effectively passed on making a decision on this issue,
although this order finding a lack of jurisdiction was not appealed. However, Respondent's later February
26, 2014 order granting a Writ of Possession was a judgment that ordered an immediate change in
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possession of the Property rather than the payment for the property. Once Relators give up possession of
the Property, demolition of the Property will begin. No appeal can undo the ensuing consequences.
Should this Court find Respondent lacked the authority to act as it did here, an extraordinary writ of
prohibition is therefore a means of avoiding the irreparable harm that Relators would suffer otherwise.
B. The circuit court has subject matter jurisdiction.
Next, we preface our discussion of the requirements of the TIF Act with a brief analysis of the
difference between jurisdiction and authority to act under a statute. The TIF Act authorizes the use of tax
abatements to support the redevelopment of blighted areas, and condemnation and eminent domain are
but tools used to facilitate such redevelopment. Meramec Valley R-III Sch. Dist. V. City of Eureka, 281
S.W.3d 827, 829 (Mo. App. E.D. 2009). Condemnation proceedings are governed by statute, City of
Branson v. Branson Hills Master Ass'n, Inc., 292 S.W.3d 467, 471 (Mo. App. S.D. 2009), and writs of
prohibition will be issued when a relator "show[s] that the condemnation proceedings are unauthorized by
law." Tierney v. Planned Indus. Expansion Auth., 742 S.W.2d 146, 149-50 (Mo. banc 1987). At one
time, it was common to refer to proceedings unauthorized by law as proceedings where the circuit court
"lacks subject matter jurisdiction" to continue to enter the orders. Id. However, as this Court expressed
in St. Louis County v. Berck, 322 S.W.3d 622, 627 (Mo. App. E.D. 2010), the J.C.W. ex rel. Webb v.
Wyciskalla decision clarified subject matter jurisdiction, distinguishing between a circuit court's statutory
limitation to act as opposed to a lack of jurisdiction. 275 S.W.3d 249, 252-54 (Mo. banc 2009). This
distinction is critical here in determining not whether the circuit court lacked jurisdiction to enter an order
on Writ of Possession, but whether the circuit court lacked statutory authority to act because the City
exceeded the time allowed to "acquire" the Property. Nothing changes the fact that this condemnation
case is a civil case over which a circuit court has constitutionally vested subject matter jurisdiction.
Berck, 322 S.W.3d at 627.
C. Once the deadline for acquisition was missed, the circuit court was not authorized to act.
The TIF Act authorizes municipalities to approve redevelopment projects and designate the areas
for those projects. Section 99.820.1(1). Chapter 523 authorizes the use of condemnation proceedings for
5
the appropriation of land within the state for any purpose. Berck, 322 S.W.3d at 628. Moreover, and
directly at issue in this case, the TIF Act requirements for the redevelopment plans are set forth in Section
99.810.1, and include required findings of estimated dates, "provided that no property for a
redevelopment project shall be acquired by eminent domain later than five years from the adoption of the
ordinance approving such redevelopment project[.]" Section 99.810.1(3).
In interpreting this statute, Missouri courts have held that a condemnor "acquires" the condemned
property through eminent domain, i.e., a "taking," on the date on which the condemnor pays the amount
of the commissioners' award into the court. Manners, 186 S.W.3d at 275; State ex rel. Missouri Highway
Comm'n v. Starling Plaza P'ship, 832 S.W.2d 518, 520 (Mo. banc 1992). "Until the commissioner's
award is paid, the condemnor has no title to or right to possession and control of the subject property. It
is only after the award is paid that the condemnor has 'acquired' the property." Manners, 186 S.W.3d at
275. See, e.g., State ex rel. State Highway Comm'n. v. Johnson, 592 S.W.2d 854, … (Mo. App. E.D.
1979) (since transfer of ownership occurs at the time the commissioners' award is paid into the court's
registry, defendant lessees' acquisition of fee interest subsequent to that time could not effect transfer of
that fee to State Highway Commission through subsequent condemnation proceedings brought against the
lessees). We find no authority to suggest otherwise, including the City's argument that a filing of the
commissioners' report without exceptions would satisfy an acquisition through eminent domain. The
City's argument that it acquired equitable title to the Property when the commissioners' award became
final and enforceable by either party, rather than when the commissioners' award was paid, fails as it is
contrary to Missouri precedent.
We find instructive our recent decision in the Berck case, wherein this Court specifically held that
the language of Section 99.810.1(3) of the TIF Act, at issue here, precluded the trial court from allowing
the county to acquire property by condemnation more than five years after the adoption of the ordinance
approving the redevelopment, although this statutory limitation did not deprive the trial court of subject
matter jurisdiction over the civil condemnation action. 322 S.W.3d at 616. In Berck, both the county and
the property owners filed exceptions to the commissioners' award once it was set, and the county filed a
6
motion to dismiss its own condemnation petition, which this Court deemed as a formal election to
abandon the condemnation. Id. at 625-32. Although the Berck facts are distinguished in that no party
here filed exceptions or appealed the commissioners' award, the stated holding still applies.
Moreover, in the Manners case, the relators sought to dismiss a petition for condemnation when it
finally was filed five years after the adoption of the ordinance approving the redevelopment project. 186
S.W.3d at 273-74. The Missouri Supreme Court held that the word "acquire" as used in Section
99.810.1(3) does not refer to the filing of a condemnation petition, but instead, "refers to the transfer of
ownership from the property owner to the condemnor upon the payment of the commissioner's award into
the court or to the property owner." Id. at 275. Again, the facts of Manners are different, but the holding
is the same here.
Here, Ordinance No. 4991 approving the subject redevelopment project was adopted in 2006.
Thus, the property for the redevelopment project must have been acquired by eminent domain no later
than five years – 2011. See Section 99.810.1(3). As stated supra, the City did not pay the commissioners'
award for damages until December 2, 2013, which is the date the City would have "acquired" the
Property. Therefore, the City was too late. At that point, because the "acquisition" was no longer
possible in conjunction with the redevelopment project, the circuit court, having no more authority to act,
had no choice but to dismiss the condemnation action. Moreover, the Writ of Possession the City sought
in 2013 also came too late, as did the circuit court's order granting that Writ of Possession in 2014. The
circuit court should have dismissed the Writ of Possession as well. Because the legislative authority for
the underlying proceeding in condemnation had expired as a result of the statutory limitations imposed by
the legislature pursuant to Missouri Revised Statutes Section 99.810.1(3), the circuit court exceeded its
authority in doing otherwise.
The City further argues that the broader condemnation statute, Chapter 523, provides the one and
only way in which a condemning body may effectively abandon a condemnation. The City cites Missouri
Supreme Court Rule 86.06, which states that a municipality has thirty days after a condemnation
judgment becomes final to "elect to abandon the proposed appropriation of any property, by an instrument
7
in writing to that effect," 4 in arguing that if the City's final judgment here is not an acquisition of the
Property, it will judicially create another means for condemning bodies to abandon. We disagree.
The TIF Act "translate[s] into working machinery the rights, power and privileges authorized in
Article VI, Section 21" of the Missouri Constitution, which provides local governments with the power to
implement plans for the redevelopment of blighted areas. City of North Kansas City v. K.C. Beaton
Holding Co., LLC, 417 S.W.3d 825, 831-32 (Mo. App. W.D. 2014). No plan may be adopted without the
governing body finding, among other things, that the redevelopment project area is a blighted area or
conservation area as defined in Section 99.805 5 and that the area is neither subject to, nor is it reasonably
anticipated that it will be subject to, growth through investment by the private sector. Section 99.810;
Tax Increment Fin. Comm'n of Kansas City v. J.E. Dunn Constr. Co., Inc., 781 S.W.2d 70, 73 (Mo. banc
1989) (providing a detailed discussion on the TIF Act and its constitutionality). While the TIF Act sets
forth the broad framework in which a condemnation must take place, it establishes a variety of strict
procedural requirements. See id. at 74 n.2. Within this framework and the strict requirements of the TIF
Act, "the step-by-step procedures of condemnation are but one potential piece of the larger TIF project,"
Berck, 322 S.W.3d at 630. Accordingly, the TIF Act does not expand condemnation procedures to be
utilized by condemning bodies to be released from their obligations. Rather,
the exercise of eminent domain is in derogation of the right of the citizen; . . . a statute
delegating that power must be strictly construed, and the person or body claiming the
right to exercise such delegated power must be able to point to the statute which either
expressly or by necessary implication confers that right.
City of Smithville v. St. Luke's Northland Hosp. Corp., 972 S.W.2d 416, 420 (Mo. App. W.D. 1998)
(quoting Southwestern Bell Telephone Co. v. Newingham, 386 S.W.2d 663, 665 (Mo. App. 1965)). It is
4
This language is also mirrored in Section 523.040.1.
5
A "blighted area" is defined as:
an area which, by reason of the predominance of defective or inadequate street layout, unsanitary
or unsafe conditions, deterioration of site improvements, improper subdivision or obsolete
platting, or the existence of conditions which endanger life or property by fire and other causes, or
any combination of such factors, retards the provision of housing accommodations or constitutes
an economic or social liability or a menace to the public health, safety, morals, or welfare in its
present condition and use.
Section 99.805.(1).
8
clear that the intent of the requirement to limit the time for acquiring property under the TIF Act, Section
99.810.1(3), was to further protect the public. But for such protections, the public may be held in "limbo"
for an unnecessarily long period of time. We recognize that redevelopment plans are complex matters,
dependent upon many factors, but that does not excuse a governmental body's indefinite withholding of
funds equivalent to a fraction of the project costs for its own protection and to the detriment of the
citizens whose lives may be largely affected by the project deemed to be for the greater good. 6 While the
TIF Act prohibits the "taking" after five years, it does not eliminate all voluntary property sales. If the
City cannot follow the strict procedural requirements set forth in the TIF Act, the resulting consequences
are not unintended.
Respondent was not outside of its jurisdiction to rule on a condemnation case. Rather, the circuit
court lacked the statutory authority to act pursuant to Section 99.810.1(3) because the time had expired
whereby the City could acquire the Property for condemnation pursuant to the TIF Act. Because Relators
will otherwise suffer irreparable harm, Relator's Writ of Prohibition is granted. Respondent's order on
Writ of Possession is void; Respondent is prohibited from entering any order other than dismissing the
condemnation.
D. An award of interest is not warranted under condemnation statute.
In addition to asking for prohibition on the Writ of Possession, Relators also seek an award of
interest, based on the City's actions Relators deem tantamount to the City's abandonment of the
condemnation proceedings. Relators argue that interest is warranted here because Relators lost the right
to receive and use the commissioners' award for more than five years.
Section 523.045 authorizes the payment of interest on awards of damages owed by the
condemnor to the owners of the condemned property. This provision states that if the condemnor has not
paid the damages award, "nor timely filed its written election to abandon the proposed appropriation of
said property or rights" within thirty days after the filing of the commissioners' report, "then interest on
6
The TIF Act contemplates that the improvements in the redevelopment district will result in an increased assessed
valuation of the property within the redevelopment area. J.E. Dunn Constr. Co., Inc., 781 S.W.2d at 73. Clearly, the
Property, in and surrounded by a blighted area, is not expected to increase in value without being condemned.
9
the amount of any subsequent verdict for said named persons, or if there be no such verdict, then on the
amount of the award, at the rate of six percent per annum from the date of filing the report shall be added
to said verdict or award and paid to said named person or to the clerk for them." Section 523.045
(emphasis added).
Here, given the City's actual payment of the commissioners' award, albeit late and past the
expiration of the five-year time period allowed by Section 99.810.1(3), we cannot find that the City ever
"elected" to "abandon the proposed appropriation" of the Property. To the contrary, the City intended to
effectuate the condemnation action, as it eventually paid the commissioners' award, acquired more than
100 other parcels of land, and commenced demolition of the development site. Instead, Relators chose to
withdraw their motion to distribute the proceeds from the registry of the Circuit Court of St. Louis
County, keep the Property, and attempt to end the condemnation by operation of law. As we have stated
above, Relators have succeeded in their desired outcome: maintaining title of the Property rather than
obtaining payment therefor. Although Relators lost the right to receive and use the commissioners' award
for more than five years, it was Relators who chose this outcome rather than forcing a distribution of
proceeds, albeit late, by executing on the commissioners' award. Additionally, Relators never lost the
right to use and enjoy the Property. Conversely, the City loses the ability to take the Property through
eminent domain under the TIF Act for its failure to adhere to the strict statutory requirements of Section
99.810.1(3), but no longer must pay the commissioners' award for the Property that cannot, by law, be
condemned pursuant to this statute. Without finding a purposeful abandonment on the City's part here,
but merely the City's failure to adhere to the legislative authority granted to it to acquire property through
eminent domain, this Court does not find that the interest provision of Section 523.045 applies. Relators'
request for interest is denied.
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IV. Conclusion
This Court's Preliminary Order in Prohibition is hereby made absolute. Respondent is directed to
proceed consistent with this opinion.
___________________________________
Roy L. Richter, Presiding Judge
Kurt S. Odenwald, J. concurs.
Robert M. Clayton III, J. concurs.
11