              In the Missouri Court of Appeals
                      Eastern District
                                           SOUTHERN DIVISION

CITY OF CAPE GIRARDEAU,                                     )           ED106181
                                                            )
         Appellant,                                         )           Appeal from the Circuit Court of
                                                            )           Cape Girardeau County
v.                                                          )           16CG-CC00223
                                                            )
ELMWOOD FARMS, L.P., f/k/a                                  )
ELMWOOD FARMS LIMITED                                       )           Honorable Robin E. Fulton
FAMILY PARTNERSHIP, L.P.,                                   )
                                                            )
         Respondent.                                        )           Filed: March 5, 2019


                                                    OPINION

         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 property1 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.



1
 Elmwood owns a total of 70.1 acres, which includes the land contiguous to the 1.95 acres of property at issue in the
condemnation proceeding. However, the parties agreed to use only the 17.2 acres abutting Bloomfield Road for
purposes of appraisal and are solely at issue in this appeal.
                                                 BACKGROUND

           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.

                                                   DISCUSSION

           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



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

                                                           2
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



                                                  3
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 Section

523.061 in conducting a second hearing on the issue of heritage value. Therefore, we review

each of the City’s three points de novo. Id.

    III.      The Trial Court did not Err in its Determination of Whether the Taking
              Prevented Elmwood from Utilizing Property in Substantially the Same Manner

           The City’s first two points each concern the trial court’s interpretation of Section

523.039(3), thus we consider these points together. In its first point, the City argues the trial

court erroneously stated the legislative intent behind Section 523.039(3) regarding what property

is to be considered when determining whether the property owner could utilize the property in

substantially the same manner as it was being utilized on the day of the taking. According to the

City, the legislative intent behind the statutory provision is to consider the utilization of the

remaining property and not just the condemned property. Point two challenges the trial court’s


3
 In point two, the City discusses the evidentiary basis for both decisions regarding heritage value. However, the
City’s point on appeal only asserts error in the trial court’s interpretation of the relevant statutes, not the sufficiency
of the evidence supporting the assessment of heritage value.

                                                             4
interpretation of the word “utilize.” The City contends the trial court erred in interpreting

“utilize” to mean the ability to exercise property rights in the “before” and “after” condition of

the property.

        Our primary objective in resolving questions of statutory construction is to

determine the legislature’s intent from the plain language used in the statute. Newman,

142 S.W.3d at 886. In doing so, we give the words used their plain and ordinary

meaning, and we presume the legislature intended every word, clause, and sentence to

have effect. Id. at 886, 892. Thus, if different terms are used in different subsections of

the statute, then the legislature intended the terms to have different meaning and effect.

Id. at 892.

        The introduction to Section 523.039 states, “[i]n all condemnation proceedings

filed after December 21, 2006, just compensation for condemned property shall be

determined under one of the three following subdivisions. . . .”

        Specifically, Section 523.039 (1) through (3) determines just compensation for

condemned property by whichever yields the highest compensation applicable to the property.

The relevant portion of the statute states:

        (1) An amount equivalent to the fair market value of such property;

        (2) For condemnations that result in a homestead taking, an amount equivalent to
            the fair market value of such property multiplied by one hundred twenty-five
            percent; or

        (3) For condemnations of property that result in any taking that prevents the
            owner from utilizing property in substantially the same manner as it was
            currently being utilized on the day of the taking and involving property
            owned within the same family for fifty or more years, an amount equivalent
            to the sum of the fair market value and heritage value. . . . (emphasis added)




                                                 5
        Subsections (1) and (2) refer to “such property.” The use of the phrase “such

property” in these subsections refers back to the condemned property previously

discussed in the introduction of the statute. However, subsection (3) refers only to

utilizing “property,” omitting the word “such.”

        We presume the legislature intentionally omitted the word “such” in subsection

(3). See Jefferson ex rel. Jefferson v. Missouri Baptist Medical Center, 447 S.W.3d 701,

708 (Mo. App. E.D. 2014) (we will not insert terms the legislature omitted under the

guise of statutory construction). Therefore, the plain and ordinary meaning of the term

“property,” used in subsection (3), particularly when read in conjunction with subsections

(1) and (2) and the statute in its entirety, indicates the legislature’s intent that subsection

(3) concerns the evaluation of the property as a whole, and not simply the portion of

property subject to condemnation.

        In this case, the trial court specifically found it would be compelled to reach the

same result regardless of whether it considered only the 1.95 acre portion of property

subject to condemnation or the entire 17.2 acre tract of property as a whole. Thus, we

find the trial court correctly interpreted Section 523.039(3) and determined heritage value

based upon the evidence of Elmwood’s utilization of the whole tract of property rather

than only the condemned portion.

        In point two, the City also challenges the trial court’s interpretation of the term

“utilize” as set forth in Section 523.039(3). The plain language of the statute requires the

court to assess heritage value if the taking “prevents the owner from utilizing property in

substantially the same manner as it was currently being utilized on the day of the taking.”

Application of Section 523.039(3) begins the day of the taking for this analysis.



                                                   6
          This is simply another way of stating the “before” and “after” consideration the

trial court set forth in its judgment. The court was required to consider how the property

is being utilized on the day of the taking (“before”) and how the property was being

utilized thereafter (“after”) in determining whether heritage value should be awarded.

          The trial court considered the evidence presented at the October 5, 2017 hearing,

and relying upon the record as a whole, the court concluded the taking prevents Elmwood

from utilizing the property in substantially the same manner as it was currently being

utilized the day of the taking.4 The court’s interpretation of Section 523.039(3) in its

decision to award Elmwood heritage value in this case was consistent with the plain

language of the statute and consistent with the City’s own assertion of the manner in

which heritage value should be determined. Thus, the court did not err in awarding

Elmwood heritage value. Points one and two on appeal are denied.

    IV.      The City is Estopped from Asserting its Claim on Appeal

          In its third point on appeal, the City claims the trial court erred in conducting a second

hearing on the issue of heritage value because the issue had already been decided by Judge

Lewis. According to the City, Judge Lewis’ judgment denying Elmwood’s motion to assess

heritage value constitutes the law of the case and a second hearing was not authorized by Section

523.061.

          Pursuant to Section 523.061, once the commissioner’s report is filed, the circuit judge,

applying the provisions of Section 523.039, “shall determine whether heritage value is payable,”

and shall increase the award if such heritage value applies. If either party disputes this



4
 Although the City’s points on appeal assert error in the trial court’s interpretation of Section 523.039(3), and do not
challenge whether there is substantial evidence to support this conclusion, we note ex gratia that there is substantial
evidence to support the trial court’s determination of heritage value under the statute.

                                                           7
determination, the statute further states, in relevant part, “a jury trial of exceptions occurs . . .

[and] the circuit judge presiding over the condemnation proceeding shall apply the provisions of

section 523.039 and shall determine . . . whether heritage value is payable and shall increase the

jury verdict to provide for the additional compensation due . . . where heritage value applies, in

accordance with the just compensation provisions of section 523.039.” This effectively creates a

second determination of heritage value which the City now disputes.

         Elmwood filed exceptions to the commissioner’s report following Judge Lewis’ denial of

the motion to assess heritage value pursuant to this statutory framework. Thus, Section 523.061

entitled Elmwood to a jury trial to determine fair market value. Then the circuit judge presiding

over the condemnation jury proceeding would make a second final determination of heritage

value.

         However, in lieu of a jury trial, the parties entered into a tentative settlement agreement

and stipulation for consent judgment. The parties agreed Elmwood was entitled to $90,000.00 as

fair market value compensation for the taking. Specifically, paragraph 8 of the agreement,

stipulation, and consent judgment states, in relevant part, “[t]he parties further stipulate and agree

that [Elmwood’s] entitlement to ‘heritage value’ shall be determined by the Honorable Robin E.

Fulton.” Thus, the parties simply waived a jury determination of fair market value and submitted

the determination of heritage value to Judge Fulton, as set forth in the statute.

         Not only was Elmwood entitled to a second statutory determination of heritage value,

more importantly, a party cannot complain on appeal about procedure adopted by the trial court

at its own request. Hilton v. Crouch, 627 S.W.2d 99, 102 (Mo. App. S.D. 1982). Nor may a

party assert alleged error on appeal which, by his own conduct, he joined or acquiesced. Id. In

its third point, while Elmwood was legally entitled to the proverbial “second bite of the apple,”



                                                    8
the City is appealing something it specifically consented to: the subsequent judicial

determination of heritage value. The City cannot now assert that following such procedure was

error. Accordingly, the City’s third point on appeal is denied.

                                         CONCLUSION

       The judgment of the trial court is affirmed.



                                                      ___________________________________
                                                      Lisa P. Page, Chief Judge

Sherri B. Sullivan, J., and
Angela T. Quigless, J., concur.




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