Wolfe v. STATE EX REL. MO. HWY. & TRANSP.

910 S.W.2d 294
CourtMissouri Court of Appeals
DecidedSeptember 19, 1995
DocketWD 48467
StatusPublished
Cited by1 cases

This text of 910 S.W.2d 294 (Wolfe v. STATE EX REL. MO. HWY. & TRANSP.) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wolfe v. STATE EX REL. MO. HWY. & TRANSP., 910 S.W.2d 294 (Mo. Ct. App. 1995).

Opinion

910 S.W.2d 294 (1995)

Alan WOLFE, et al., Respondents,
v.
STATE of Missouri, ex rel. MISSOURI HIGHWAY AND TRANSPORTATION COMMISSION, Appellant.

No. WD 48467.

Missouri Court of Appeals, Western District.

September 19, 1995.
Motion for Rehearing and/or Transfer Denied October 31, 1995.
Application to Transfer Denied December 19, 1995.

*295 Samuel Preston Williams, Thomas E. Barzee, Jr., Kansas City, for appellant.

James Malcolm Slone, Kansas City, for respondents.

Before HANNA, P.J., and BRECKENRIDGE and ELLIS, JJ.

Motion for Rehearing and/or Transfer to Supreme Court Denied October 31, 1995.

BRECKENRIDGE, Judge.

The appellant, Missouri Highway and Transportation Commission (MHTC), appeals from a jury verdict awarding $203,184.00 to the respondents, R.E. Wolfe, Norma Wolfe, Alan Wolfe, and Hub Materials, Inc. (the Wolfes), in an inverse condemnation action. The Wolfes sued MHTC for the value of 101,592 tons of crusher rock belonging to the Wolfes, which MHTC acquired and used for the purpose of building a highway. Judgment was entered in favor of the Wolfes in the amount of $239,423.12, including interest.

MHTC raises three points on appeal. It claims that the trial court erred (1) in admitting into evidence portions of an order from an earlier condemnation proceeding which established the Wolfes' ownership of the crusher rock; (2) in refusing MHTC's offers of proof regarding two witnesses whose testimony was allegedly relevant to the affirmative defenses of abandonment, failure to exhaust administrative remedies and failure to mitigate damages; and (3) in denying MHTC's motions for directed verdict, because the evidence established as a matter of law that the Wolfes had no claim upon which relief could be granted.

In the early 1970's, respondent R.E. Wolfe acquired Stewart Sand and Material Company. The company engaged in underground rock mining at the northwest quadrant of Highway 291 and Truman Road in Independence, Missouri. The operations involved removing rock from below the surface, crushing it, and loading it onto a conveyor belt in order to transport it to a stockpiling area on Tract 4A. Two or three years after Stewart Sand and Material Company had been in operation, it was renamed Hub Materials, Inc. On August 31, 1974, the quarry operations halted, leaving a large portion of the crusher rock on Tract 4A. Throughout the years, trees, brush, and weeds spread into the rock.

Hub Materials filed Chapter 11 Bankruptcy in August 1987. When the corporation completed a schedule of its assets and liabilities, *296 it listed Tract 4A, but did not list the 101,592 tons of crusher rock piled on Tract 4A. Pursuant to an order by the United States Bankruptcy Court for the District of Kansas, Tract 4A was then acquired by Brotherhood Bank & Trust Company, a creditor of Hub Materials. Brotherhood Bank and Hub Materials entered into an oral agreement at that time, whereby Hub Materials retained ownership of the crusher rock on Tract 4A and was allowed to continue to stockpile rock on that property.

On April 16, 1990, MHTC filed a condemnation petition to acquire Tract 4A for the "construction and maintenance" of a highway intersection. The commissioner assessed damages at $319,000.00, and MHTC deposited that amount into the court registry. When MHTC took possession of the property it took the position that the crusher rock was a portion of the real property and that, in condemning Tract 4A, it had also obtained rights to the crusher rock atop the land. Therefore, when MHTC began construction on the highway on October 1, 1990, it utilized some of the crusher rock.

Since MHTC claimed rights to the crusher rock as well as Tract 4A, the Wolfes applied for apportionment of the condemnation award. On December 14, 1990, after a hearing, the Circuit Court of Jackson County, Missouri, entered an order determining that Brotherhood Bank was the fee simple owner of Tract 4A, and that the 101,592 tons of crusher rock constituted personal property belonging to the Wolfes. The judge held that Brotherhood Bank was entitled to the entire $319,000.00, since the condemnation proceeding dealt exclusively with real estate and the commissioners' award only considered the value of Tract 4A, not the crusher rock. The Wolfes did not have an interest in Tract 4A, so they were ineligible for the registry funds.

Thereafter, MHTC filed a motion for summary judgment or, alternatively, a motion to dismiss the Wolfes' exceptions to the commissioners' award. On April 5, 1991, the circuit court sustained MHTC's motion to dismiss the Wolfes' exceptions with prejudice. After being denied their request for a Writ of Prohibition and a Writ of Mandamus, the Wolfes filed an appeal from the order of dismissal. The appeal was dismissed on May 29, 1991, and the orders in the condemnation case became final.

The Wolfes then filed a petition for inverse condemnation in the Circuit Court of Jackson County on July 17, 1991. The petition sought damages for MHTC's use of the crusher rock which had been previously severed from and stockpiled on Tract 4A. A jury returned a verdict in favor of the Wolfes in the amount of $203,184.00. After calculating interest, the court entered judgment for the Wolfes in the amount of $239,423.12. MHTC appeals the award.

MHTC's appeal was entertained by this court and an original opinion issued. Thereafter, MHTC's Motion for Rehearing was sustained and the matter resubmitted. After considering the issues raised in the motion for rehearing, the court affirms the judgment.

I.

MHTC's first point contends the trial court erred in permitting the Wolfes, over MHTC's objection, to introduce into evidence Finding of Fact Number 5 ("Finding 5") and Conclusion of Law Number 2 ("Conclusion 2") from the December 1990 order in the condemnation proceeding. MHTC argues the admission of these statements was error because MHTC "was neither bound by nor collaterally estopped from contesting that finding and conclusion."

The December 1990 order apportioning the award in the condemnation case included six "Findings of Fact" and five "Conclusions of Law." Finding of Fact Number 6 was read to the jury at the request of MHTC. That finding stated MHTC and Brotherhood Bank had not prohibited or restricted the Wolfes from removing the crusher rock from Tract 4A. Finding 5 established that approximately 101,592 tons of crusher rock had been severed from Tract 4A. Conclusion 2 declared that the rock was personal property owned by the Wolfes.

MHTC did not object when Finding 5 and Conclusion 2 were read to the jury at trial. An objection to evidence must be made at *297 trial in order to preserve a claim of error. Cooper v. General Standard, Inc., 674 S.W.2d 117, 122 (Mo.App.1984). MHTC argues that it "timely and specifically" objected to the evidence in a pretrial hearing, and because the court's ruling on the objection was "definitive," MHTC was not required to object at trial. This court need not decide whether the failure to object at trial foreclosed appellate review, because MHTC never made a proper objection at the pretrial hearing.[1]

The pretrial hearing was held August 9, 1993, the morning of the first day of trial.

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