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In the Missouri Court of Appeals Western District
CITY OF NORTH KANSAS CITY, MISSOURI, WD76068 and WD76110 Appellant-Respondent, OPINION FILED: v. January 14, 2014 K.C. BEATON HOLDING COMPANY, LLC, ET AL., Respondents-Appellants, and PLATTE VALLEY BANK OF MISSOURI AND KEITH HICKLIN, Respondents.
Appeal from the Circuit Court of Clay County, Missouri The Honorable Anthony Rex Gabbert, Judge
Before Division Four: James Edward Welsh, C.J., Cynthia L. Martin, J., and Patrick Robb, Sp. J.
The City of North Kansas City (the City) seeks to condemn property owned by K.C.
Beaton Holding Company, L.L.C., upon which Gilbertson Restaurants, L.L.C., operates a Burger
King restaurant.1 The City filed an amended verified petition in condemnation against K.C.
1 We refer to K.C. Beaton Holding Company, LLC, and Gilbertson Restaurants, LLC, collectively as K.C. Beaton. Beaton, and K.C. Beaton filed a motion to dismiss the petition. The circuit court granted K.C.
Beaton's motion to dismiss finding that the City did not have the authority to condemn the
Burger King property under section 88.497, RSMo 2000, for the "public purpose" of eliminating
blight. The City appeals asserting that the circuit court erred in dismissing its amended verified
petition in condemnation on the grounds that the City lacked legal authority to condemn the
Burger King property under section 88.497. The City contends that section 88.497 granted the
City the right to take property "for any other necessary public purposes" and that the elimination
of blight is a public purpose. K.C. Beaton cross-appeals asserting that the circuit court erred in
finding that the City's ordinance, which declared the Burger King property to be blighted, was
valid. K.C. Beaton asserts that the City's ordinance violates article VI, section 21 of the Missouri
Constitution, because the City did not follow the requirements of any statute when it made its
determination that the area, which included the Burger King property, was blighted. We affirm
the circuit court's judgment and dismiss K.C. Beaton's cross-appeal.
The City of North Kansas City is a third-class and non-charter city with a population
between 4,000 and 5,000 inhabitants. K.C. Beaton Holding Company, L.L.C., is the owner of
real property located generally at 1911 Armour Road in North Kansas City. Gilbertson
Restaurants, L.L.C., is the operator of a Burger King on the property owned by K.C. Beaton
Holding Company, L.L.C.2
The City has undertaken the removal of blight and seeks to redevelop approximately 57
acres of land located in the City south of Armour Road and east of Interstate 35 (the Armour
2 There were also three other named defendants in the amended verified petition in condemnation: Keith Hicklin (trustee under a Deed of Trust), Platte Valley Bank (mortgagee of and holder of certain other secured interests in the Burger King property), and Lydia McEvoy (duly elected and qualified Clay County Collector of Revenue). None of these defendants participated in the appeal before this court.
2 Road Site). In an effort to determine whether the Armour Road Site was blighted, the City
commissioned a blight study, dated July 31, 2008. The City obtained an updated blight study,
dated April 30, 2010, to confirm and update the contents of the original study. Both the 2008 and
2010 blight studies concluded that the Armour Road Site was blighted. The blighting factors
were not found on the Burger King property, but because the studies found a preponderance of
blight, the studies concluded that the entire area was blighted.3
After reviewing the blight studies and being advised of the condition of the Armour Road
Site, the City's city council passed Ordinance No. 8476, which was subsequently approved by the
City's mayor on June 22, 2010. In Ordinance No. 8476, the city council found and declared that
a preponderance of the Armour Road Site was blighted. Ordinance No. 8476 specifically stated
that the city council reviewed the 2008 and 2010 blight studies for the Armour Road Site prior to
determining the property was blighted. Further, Ordinance No. 8476 stated that the city council
made its determination that the property was blighted after considering each parcel within the
Armour Road Site. The ordinance authorized the City to acquire by purchase, donation, lease, or
eminent domain, pursuant to section 88.497, RSMo, and Chapter 1.20 of the City Code, all legal
interests in the properties within the Armour Road Site.
3 Section 523.274.1, RSMo Cum. Supp. 2012, provides:
Where eminent domain authority is based upon a determination that a defined area is blighted, the condemning authority shall individually consider each parcel of property in the defined area with regard to whether the property meets the relevant statutory definition of blight. If the condemning authority finds a preponderance of the defined redevelopment area is blighted, it may proceed with condemnation of any parcels in such area.
This statute requires the condemning authority to evaluate each parcel of property in the defined area to determine whether it is blighted but does not require the condemning authority to make a specific finding as to whether each individual parcel is blighted. Allright Props., Inc. v. Tax Increment Fin. Comm'n of Kansas City, 240 S.W.3d 777, 779 (Mo. App. 2007). But, even if the individual parcel of land does not meet the statutory definition of blight, the statute authorizes the condemning authority to take the land "so long as a preponderance of the area, as a whole, is blighted." Id. at 781.
3 To carry out its intent to eliminate blight and redevelop the Armour Road Site, the City
commenced acquiring various properties within the described area. The City acquired all of the
properties at the Armour Road Site except the property that is the subject of this litigation.4
On June 28, 2011, the city council and the mayor approved Ordinance No. 8551, which
specified that the City deemed it necessary and in the best interests of the citizens of the City to
acquire certain interest in lands and all associated appurtenances and improvements, if any, in the
Burger King property. Ordinance No. 8551 identified that the land was required for the
necessary public purpose of providing for the clearance, replanning, reconstruction,
redevelopment and rehabilitation of blighted and substandard areas for any necessary public
purpose or any positive economic impact for the public good of the City. Through Ordinance
No. 8551, the city council authorized and issued a certificate of public convenience and necessity
authorizing the City to acquire by the exercise of eminent domain the Burger King property in
fee simple or other appropriate estate.
On July 7, 2011, the City sent a letter to K.C. Beaton Holding Company, which gave
notice of the City's intent to acquire the Burger King property as part of the City's plan for
redevelopment of the Armour Road Site and which invited K.C. Beaton Holding Company to
engage in negotiations prior to initiating a condemnation action. Prior to engaging in
negotiations for the property, the City had the Burger King property appraised. The appraiser
concluded that the fair market value of the property was $850,000 as of May 15, 2011. On
October 4, 2011, the City made a written offer of $850,000 to acquire the Burger King property
from K.C. Beaton Holding Company. K.C. Beaton Holding Company did not accept the offer
4 The City states that there remains a question of the ownership of two abandoned rail spurs on the Armour Road site but that the City owns the fee simple absolute title to all property abutting the abandoned spurs. No issue regarding the abandoned rail spurs is before this Court.
4 and made no counteroffer. Although the City in good faith endeavored to agree upon proper
compensation for the property, the City was unable to acquire from K.C. Beaton Holding
Company fee simple absolute title to the property. Therefore, the City filed its verified petition
in condemnation against K.C. Beaton Holding Company on March 23, 2012, and filed an
amended petition against K.C. Beaton Holding Company and Gilbertson Restaurants on May 25,
2012, seeking to acquire by the City's power of eminent domain the Burger King property. K.C.
Beaton Holding Company and Gilbertson filed their respective answers to the amended petition
in condemnation and also filed a joint motion to dismiss.
The circuit court held an evidentiary hearing on the City's condemnation action. During
the evidentiary hearing, the City called witnesses to testify and offered various documents and
reports into evidence. K.C. Beaton did not call any witnesses to testify and offered no evidence,
other than the City's master plan, during the hearing. At the hearing, the City acknowledged that
it did not have an actual physical plan for what the redevelopment would look like on the Armor
Road site and that it did not have a developer for the area. In the City's Master Plan, the area was
not referenced as a redevelopment area but as a "planning area."
On October 1, 2012, the circuit court entered its order and judgment in the case,
sustaining K.C. Beaton's motion to dismiss. The City filed a motion for new trial or, in the
alternative, a motion to amend or modify the judgment. K.C. Beaton filed a memorandum in
opposition to the City's motion for new trial. The circuit court heard argument on the motions,
and the circuit court entered an amended order and judgment5 on January 23, 2013, granting
5 In its judgment, the circuit court also incorporated by reference a memorandum that it issued simultaneously with the judgment and stated that "it shall be considered part of the court's judgment in this case." The memorandum also addressed issues raised by the City's motion for new trial or, in the alternative, motion to amend or modify the judgment.
5 K.C. Beaton's motion to dismiss and dismissing the City's amended verified petition in
condemnation. The circuit court ruled that, although the City complied with the requirements for
blighting the property, the City did not have the authority to condemn the Burger King property
under section 88.497 for the "public purpose" of eliminating blight. The City appeals, and K.C.
Beaton cross-appeals.
In its sole point on appeal, the City contends that the circuit court erred in dismissing its
amended verified petition in condemnation on the grounds that the City lacked legal authority to
condemn the Burger King property under section 88.497. The City contends that section 88.497
granted the City the right to take property "for any other necessary public purposes" and that the
elimination of blight is a public purpose.
"As a general rule, review of the trial court's ruling on a motion to dismiss is limited to
the sufficiency of the pleadings on their face." City of Smithville v. St. Luke's Northland Hosp.
Corp., 972 S.W.2d 416, 419 (Mo. App. 1998). In this case, however, evidence beyond the
pleadings was introduced prior to the dismissal.6 Under such circumstances, the motion to
dismiss would be converted into a motion for summary judgment, and our standard of review
would be de novo. Id.; Rule 55.27(b); ITT Commercial Fin. v. Mid-Am. Marine Supply Corp.,
854 S.W.2d 371, 376 (Mo. banc 1993). However, because this case involves the issue of
statutory construction, which is a question of law, our standard of review is most certainly de
novo. Nichols v. Dir. of Revenue, 116 S.W.3d 583, 585 (Mo. App. 2003).
6 Ordinarily, the court is required to give notice to parties and an opportunity to present all materials pertinent to a motion for summary judgment. Mitchell v. McEvoy, 237 S.W.3d 257, 259 (Mo. App. 2007). When, however, "both parties introduce evidence beyond the scope of the pleadings, the motion to dismiss is converted to a motion for summary judgment and the parties are charged with knowledge that the motion was so converted." Id. Further, if it is apparent that the parties and the court were informed of the issues, and there is no genuine factual dispute with respect to the evidence submitted to support the motion, then we need not remand for failure to give notice. Chaney v. Cooper, 954 S.W.2d 510, 515 (Mo. App. 1997).
6 In Missouri, "the right of eminent domain rests with the state and does not naturally
inhere in counties, municipalities or public service corporations." State ex rel. Mo. Cities Water
Co. v. Hodge, 878 S.W.2d 819, 820 (Mo. banc 1994). "The right to condemn," therefore, "can be
exercised only upon delegation from the state." Id. "'[A] statute delegating [the power of
eminent domain] 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.'" Id. at 821 (citation omitted).
In this case, the City's power to take property through eminent domain for the removal of
blight originates from Article VI, section 21 of the Missouri Constitution. This provision, which
first appeared in the 1945 Constitution, provides:
Laws may be enacted, and any city or county operating under a constitutional charter may enact ordinances, providing for the clearance, replanning, reconstruction, redevelopment and rehabilitation of blighted, substandard or insanitary areas, and for recreational and other facilities incidental or appurtenant thereto, and for taking or permitting the taking, by eminent domain, of property for such purposes, and when so taken the fee simple title to the property shall vest in the owner, who may sell or otherwise dispose of the property subject to such restrictions as may be deemed in the public interest.
Thus, under this constitutional provision, for non-charter cities like the city of North Kansas
City, the Missouri Legislature may "enact laws" that "allow non-charter cities to utilize eminent
domain to eliminate blighted areas." City of Arnold v. Tourkakis, 249 S.W.3d 202, 205 (Mo. banc
2008).
The City asserts that section 88.497 confers upon it the authority to take the Burger King
property in this case. Section 88.497 provides:
Private property may be taken by the cities of the third class for public use for the purpose of establishing, opening, widening, extending or altering any street, avenue, alley, wharf, creek, river, watercourse, market place, public park or
7 public square, and for establishing market houses, and for any other necessary public purposes.
Case law establishes that the elimination of blight is a public purpose. See e.g. State ex rel. U.S.
Steel v. Koehr, 811 S.W.2d 385, 389 (Mo. banc 1991); Tierney v. Planned Indus. Expansion Auth.
of Kansas City, 742 S.W.2d 146, 150 (Mo. banc 1987); State ex rel. Devanssay v. McGuire, 622
S.W.2d 323, 326 (Mo. App. 1981). The City, therefore, argues that, because the elimination of
blight is a public purpose, the phrase "for any other necessary public purposes" in section 88.497
gives third class cities the authority to take private property to eliminate blight. We disagree.
Section 88.4977 was enacted before the constitutional provision, Mo. Const. art. VI, § 21,
even gave the legislature the authority to enact laws to allow non-charter cities to utilize eminent
domain to eliminate blighted areas. It, therefore, cannot be said that the legislature intended to
include the elimination of blight as a "necessary public purpose" when it enacted section 88.497.
"The power to condemn private property for a public purpose is in derogation of the common
law and, hence, both the statute conferring the power and the proceedings under the statute are to
be strictly construed in favor of the property owner." City of Caruthersville v. Faris, 146 S.W.2d
80, 86 (Mo. App. 1940). The right of eminent domain must be expressly given or necessarily
implied in the statute, and we will not imply or infer such right from "'vague or doubtful
language.'" State ex rel. Schwab v. Riley, 417 S.W.2d 1, 3 (Mo. banc 1967).
Consistent with Article VI, section 21 of the Missouri Constitution, the legislature has
enacted many comprehensive statutes which provide third class cities the tools to implement
plans for the redevelopment of blighted areas. See, e.g., The Planned Industrial Expansion Law,
7 Prior versions of law and revisions appeared in § 6998, RSMo 1939; § 6852, RSMo 1929; § 8334, RSMo 1919; § 9261, RSMo 1909; and L.1909, p.298.
8 §§ 100.300, RSMo et seq.; Land Clearance for Redevelopment Authority Law, §§ 99.300, RSMo
et seq.; The Urban Redevelopment Corporations Law, §§ 353.010, RSMo et seq.; and Real
Property Tax Increment Allocation Redevelopment Act, §§ 99.800, RSMo et seq. These statutes
"translate into working machinery the rights, power and privileges authorized in Article VI, § 21,
of the Constitution of 1945." Land Clearance for Redevelopment Auth. of City of St. Louis v.
City of St. Louis, 270 S.W.2d 58, 61 (Mo. banc 1954). Unlike these Law and Acts, however, the
legislature did not (and, perhaps, could not given that the enactment of section 88.497 preceded
the enactment of the constitutional provision) specifically provide in section 88.497 the authority
for third class cities to implement plans for the redevelopment of blighted areas.
Given the specific constitutional directive in Article VI, section 21 of the Missouri
Constitution, for a non-charter city like North Kansas City to utilize eminent domain to eliminate
blighted areas, the Missouri Legislature must "enact laws" giving the non-charter city such
authority. We find nothing within section 88.497 which expressly gives third class cities the
power of eminent domain to eliminate blight, nor do we find anything within section 88.497
which necessarily implies that third class cities have such power. A third class city's general
authority to condemn under section 88.497 "for any other necessary public purposes" is not
sufficient to condemn for blight without a manifested intent by the legislature stating in express
terms or by necessary implication that third class cities have such authority. See City of
Smithville, 972 S.W.2d at 420 (No authority for a municipality to condemn property devoted to a
prior public use for another public use under a statute that gives fourth class cities the general
authority to take private property "for public use . . . and for any other necessary public
purposes"). We cannot "'read into a statute what the lawmakers in their wisdom have seen fit to
9 leave out.'" State ex rel. State Hwy. Comm'n v. Pinkley, 474 S.W.2d 46, 51 (Mo. App. 1971)
(citation omitted).
Our conclusion that the legislature did not intend to include the elimination of blight as a
"necessary public purpose" is further supported by examining the context in which section
88.497 exists. Indeed, we are "'to interpret and apply statutory provisions with reference to each
other to determine legislative intent.'" Allright Props., Inc. v. Tax Increment Fin. Comm'n of
Kansas City, 240 S.W.3d 777, 779 (Mo. App. 2007) (citation omitted). Section 88.497 exists
within a chapter titled "Public Works and Special Assessments Therefore--Condemnation."
Chapter 88, RSMo, establishes rules and procedures for cities to build and maintain "traditional"
public improvements (such as roads and parks), to levy assessments to pay for them, and to use
eminent domain to acquire property for these projects. The removal of blight or acquisition of
property for redevelopment is never mentioned in Chapter 88. Thus, taken in the context of
Chapter 88, we cannot say that it was the legislative intent of section 88.497 to include the
removal of blight in the catch-all phrase, "for any other necessary public purposes."
Because we are to strictly construe eminent domain statutes, Schwab, 417 S.W.2d at 3,
we decline to accept the City's contention that removal of blight is necessarily implied by the
words "for any other public purposes" found in section 88.497. The City does not have the
authority to condemn the Burger King property under section 88.497 for the purpose of
eliminating blight. We, therefore, affirm the circuit court's judgment dismissing the City's
amended verified petition in condemnation against K.C. Beaton.
K.C. Beaton also filed a cross-appeal in this case. In its cross-appeal, K.C. Beaton asserts
that the circuit court erred in finding that the City's ordinance, which declared the Burger King
property to be blighted, was valid. K.C. Beaton asserts that the City's ordinance violates article
10 VI, section 21 of the Missouri Constitution, because the City did not follow the requirements of
any statute when it made its determination that the area, which included the Burger King
property, was blighted. Because, however, K.C. Beaton received the relief that it requested from
the circuit court--that is, the dismissal of the City's amended verified petition in condemnation--
we fail to see how K.C. Beaton is aggrieved by the circuit court's judgment.
The right to appeal is established by section 512.020, RSMo Cum. Supp. 2012, and
provides in part:
Any party to a suit aggrieved by any judgment of any trial court in any civil cause from which an appeal is not prohibited by the constitution, nor clearly limited in special statutory proceedings, may take his or her appeal to a court having appellate jurisdiction from any
....
(5) Final judgment in the case[.]
Thus, under section 512.020, "[a] party must be 'aggrieved' by the judgment below to have any
right to appeal." Schroff v. Smart, 120 S.W.3d 751, 754 (Mo. App. 2003). "The right of appeal is
statutory and it is fundamental that in order to appeal a party must be aggrieved by the judgment
from which he appeals. A party cannot be aggrieved when the court has granted all of the relief
sought." Manchester Enters., Inc. v. Sharma, 805 S.W.2d 186, 186-87 (Mo. App. 1991). The
relief sought by K.C. Beaton was the dismissal of the City's amended verified petition in
condemnation,8 and the circuit court granted such relief. K.C. Beaton, therefore, is not aggrieved
8 K.C. Beaton did not seek any other relief, such as declaratory judgment or injunctive relief, seeking to invalidate the City's ordinance. The Missouri Supreme Court has held that, although a party cannot appeal from a judgment wholly in his favor or from a judgment that gives the party all that he asks for, the party "can appeal from a judgment which gives him only a part of the relief he seeks." Page v. Hamilton, 329 S.W.2d 758, 762 (Mo. 1959). In this case, K.C. Beaton was granted the relief it asked for, i.e. the dismissal of the City's amended petition in condemnation.
11 by the circuit court's judgment and is not entitled to cross-appeal. Thus, we dismiss K.C.
Beaton's cross-appeal.
We affirm the circuit court's judgment dismissing the City's amended verified petition in
condemnation against K.C. Beaton.
/s/ JAMES EDWARD WELSH James Edward Welsh, Chief Judge
All concur.