     In the Missouri Court of Appeals Eastern
                     District
                                          DIVISION TWO


CITY OF ST. LOUIS,                                   )         ED107699
                                                     )
        Respondent,                                  )
                                                     )         Appeal from the Circuit Court of
v.                                                   )         the City of St. Louis
                                                     )         1822-CC11276
BANK OF WASHINGTON, et al.,                          )
                                                     )         Honorable Michael F. Stelzer
        Appellant.                                   )
                                                     )         Filed: December 24, 2019

                                             OPINION

        Bank of Washington appeals the judgment condemning property acquired for the

construction and relocation of the National Geospatial-Intelligence Agency (“NGA”) in favor of

the City of St. Louis (“City”). We dismiss the appeal.


                                         BACKGROUND

       The City began acquiring property within 97-acres of North St. Louis City (“Property”)

after it was identified as one of the potential sites for the relocation of the National Geo-Spatial

Intelligence Agency facility (“Property”). LCRA Holding Corporation (“LCRAH”) was formed
to assume ownership of the Property. Several parcels were owned by Northside Regeneration,

LLC (“Northside”), upon which Bank of Washington held deeds of trust. In 2016, LCRAH,

Bank of Washington, and Northside entered into several agreements to transfer said property,

including a purchase and sale agreement under which Bank of Washington agreed to release its

liens for consideration. However, in July 2018, Bank of Washington filed suit in Franklin

County Circuit Court, seeking rescission of the purchase and sale agreement and the restoration

of its deeds of trust against the Property. LCRAH then filed an action in the Circuit Court of the

City of St. Louis to quiet title in the Property against Bank of Washington and Northside.

        While these actions were pending,1 the City filed a petition in condemnation against

LCRAH, Bank of Washington, Northside, and Gregory F.X. Daly, Collector of Revenue, seeking

to have the Property condemned in fee simple. On October 9, 2018, the court entered an order in

favor of the City and appointed commissioners who issued their report assessing damages on

October 22, 2018. Subsequently, Bank of Washington filed exceptions to the commissioners’

award, requesting a jury trial on damages, and LCRAH filed a motion for distribution of the

award. The court entered judgment apportioning the award on December 17, 2018, finding in

relevant part, that Bank of Washington did not have a “compensable interest” in the Property and

was not entitled to any distribution of the commissioners’ award. Bank of Washington did not

appeal this judgment. Bank of Washington’s exceptions were dismissed upon joint motion of the

City and LCRAH on February 15, 2019. This appeal follows.




1
  The Franklin County case remains in litigation, but the City of St. Louis Circuit Court granted judgment quieting
title in favor of LCRAH and Bank of Washington appealed. We dismissed the appeal as moot and an application for
transfer to the Missouri Supreme Court is pending.

                                                        2
                                                   DISCUSSION

           Bank of Washington asserts five substantive points on appeal, challenging the judgment

condemning the Property in favor of the City. However, the City filed a motion to dismiss the

appeal as untimely.

           In order to properly determine whether Bank of Washington timely filed its appeal, it is

important to first understand certain substantive and procedural aspects of a condemnation

proceeding, which is a bifurcated process. City of Wentzville v. Dodson, 133 S.W.3d 543, 548

(Mo. App. E.D. 2004). First, the court must determine whether the condemnation is authorized

by law. Id. Once the court makes such a finding, commissioners are appointed to assess the

damages as a result of the taking. Id. Pursuant to Section 523.050 RSMo (2016),2 either party

may file written exceptions seeking review of the commissioners’ award by the court or a jury in

which the sole issue is the value of the award. This procedure does not review the underlying

order of condemnation or determine the amount awarded to a specific party. Instead, once the

commissioners’ award is issued, any defendant claiming an interest may file a motion for

determination and distribution of their respective percentage pursuant to Section 523.053. This is

an ancillary, separately appealable proceeding. It is final, regardless of any future developments

that may result from the filing of exceptions, such as a new appraisement of the damages

awarded by the commissioners. Bi-State Devel. Agency v. Ames Realty Co., 258 S.W.3d 99, 104

(Mo. App. E.D. 2008); see Section 523.050.

           The City claims the December 17, 2018 apportionment judgment, awarding Bank of

Washington zero interest in the commissioners’ award was final for appellate purposes because

Bank of Washington had no longer had any interest in the award pursuant to State ex rel.



2
    All further statutory references are to RSMo (2016).

                                                           3
Highway Comm. v. Carlie, 487 S.W.2d 873 (Mo. App. St.L. 1972). Thus, the City asserts that

Carlie effectively forecloses the right to appeal a substantive condemnation order when there is

no appeal of the judgment apportioning an award.

       Bank of Washington acknowledges the apportionment is separately appealable but elected

not to appeal this judgment. See Bi-State Devel. Agency, 258 S.W.3d at 104. However, Bank of

Washington claims that until the exceptions were dismissed, the interlocutory order of

condemnation was not a final and appealable judgment. Thus, Bank of Washington asserts it

timely appealed from the court’s dismissal of the exceptions, citing City of Wentzville to support

the conclusion it did not have to appeal until the exceptions were final. 133 S.W.3d at 547.

       Unfortunately, neither Bank of Washington nor the City are entirely correct because they

do not effectively reconcile the case law with these specific facts because in this case the

fundamental issue is when the right to substantively appeal the condemnation vests after a

defendant is found to have zero compensable interest in an award. However, we find the

decision in Carlie is ultimately dispositive.

       In Carlie, the court considered the rights of both a landowner and a licensee allowed to

remove gravel from the land in a condemnation award. Upon motions by each defendant to

determine their respective shares of the award, the court concluded the landowners were entitled

to the entire award. 487 S.W.2d at 875. The licensee did not timely appeal his zero

apportionment, and the court concluded once it was determined he had no interest in the award,

his pending exceptions “had become lifeless.” Id. at 876. The court stated the dismissal of the

licensee’s exceptions was “merely an act of judicial housecleaning. . . .” Id.

       Similarly, upon LCRAH’s motion in the underlying condemnation, the court determined

Bank of Washington had no interest in the damages award. Bank of Washington did not appeal


                                                  4
this determination, and it became final thirty days after its entry. See Rule 81.05(a)3 (absent

authorized post-trial motion judgment becomes final thirty days after entry). As in Carlie, the

final judgment determining Bank of Washington did not have any interest in the award in the

condemnation case had the legal effect of dismissing Bank of Washington’s pending exceptions

as they were rendered “lifeless.” 487 S.W.2d at 876.

        Thus, the apportionment judgment awarding zero interest to Bank of Washington finally

resolved Bank of Washington’s exceptions for purposes of appeal. As a result, Bank of

Washington was required to file its notice of appeal of both the apportionment judgment and the

substantive issues4 it now raises regarding the condemnation by January 28, 2019.5 See Bi-State

Devel. Agency, 258 S.W.3d at 104 and City of Wentzville, 133 S.W.3d at 547.

        Bank of Washington did not file its notice of appeal until March 13, 2019. Therefore, the

appeal was untimely. Absent a timely filed notice of appeal, we are without jurisdiction to

review the case and it must be dismissed. Roberts Plaza II, LLC v. 4915 LLC, 209 S.W.3d 535,

536 (Mo. App. E.D. 2006). Thus, Bank of Washington’s appeal is dismissed.

                                                CONCLUSION

         As a result of the foregoing, the appeal is dismissed as untimely.




                                                               ___________________________________
                                                               Lisa P. Page, Judge


3
  All references to Rules are to Missouri Supreme Court Rules (2019).
4
  We disagree with the City’s assertion that Bank of Washington’s reliance on City of Wentzville, is mere “refuge in
sophistry” as Bank of Washington did have a substantive right to appeal the judgment of condemnation, which the
City would foreclose unless and until Bank of Washington would prevail on the sole issue of the apportionment
proceeding on appeal.
5
  Pursuant to Rule 81.04(a), the notice of appeal must be filed no later than ten days after the judgment becomes
final. Based on the December 17, 2018 apportionment judgment, this date was January 28, 2019.

                                                         5
Philip M. Hess, P.J. and Kurt S. Odenwald, J., concur.




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