Opinion
No. WD 60691 (Consolidated with WD 60829, WD 60830, WD 60831, WD 60834, WD 60893)
March 25, 2003
Appeal from the Circuit Court of Platte County, Missouri, The Honorable Ward B. Stuckey, Judge.
John W. McClelland and Matthew D. Kitzi, Kansas City, MO, R. Michael McGinness, Platte City, MO, for Respondent.
Gardiner B. Davis, Douglas M. Weems, and Joshua C. Dickinson, Kansas City, MO, for Appellants Estate of Ed Young and Intercontinental Engineering Manufacturing Corp.
Leland H. Corley, Kansas City, MO, for Appellants ProLogis Trust, Security Capital Industrial Trust and Kitterman, Inc.
Rodney L. Richardson and Jay MowBray, Overland Park, KS, for Appellants Williams Gas Pipelines Central, Inc., Williams Pipeline Co., L.L.C., and Williams Communications.
Brian L. Smith and Andrew Starr, Shawnee, KS, for Appellants Seyller.
Before Smith, P.J., and Lowenstein and Hardwick, JJ.
This case arises from a levee improvement project (project) initiated by the respondent, the Riverside-Quindaro Bend Levee District of Platte County, Missouri (District). The appellants, who own land within the District that would be affected by the project, are appealing the judgment of the circuit court confirming the report of the court-appointed commissioners assessing the benefits conferred by the project upon the appellants' property. The assessments are used to determine the amount to be levied against the respective landowners to partially fund the costs of the project.
The appellants raise four points on appeal, claiming that the trial court erred in approving and confirming the commissioners' assessment of benefits. However, because we agree with the District that no appeal lies from the circuit court's judgment, we never reach the merits of the appellants' claims of error.
We dismiss for lack of jurisdiction.
Facts
The District was created in 1918 by the Circuit Court of Platte County in accordance with 1913 Mo. Laws 233-34. Since its creation, the District has been reorganized several times and currently includes approximately 2400 acres in Platte and Clay Counties. The affected land of the appellants is located in Platte County within the City of Riverside.
All statutory references are to RSMo 2000, unless otherwise indicated.
In March 1999, the District received from its engineer a "Report of Engineer and Supplement to Plan for Reclamation" (plan). The plan provided for improvements to the levee to address flooding of the type that caused substantial damage in Riverside in 1993. The estimated cost of the project was $56,280,000, to be shared by the District and the Department of the Army, with the local share to be financed by the City of Riverside, tax increment financing, the affected landowners and assessment bonds.
On April 21, 1999, pursuant to § 245.110, the District filed a petition in the circuit court seeking approval of the plan; to amend the District boundaries; to acquire the land, easements, rights-of-way and other property interests required to implement the plan; and to appoint three commissioners to determine the value of the property to be taken as part of the project and to assess the benefits and damages sustained by the affected landowners. On July 13, 1999, the circuit court entered its judgment approving the plan, amending the District boundaries, and appointing three commissioners. The District filed a petition on June 16, 2000, seeking to amend the plan. On June 22, 2000, the circuit court entered its judgment, incorporating its 1999 judgment, approving the requested changes in the plan, and reaffirming the appointment of the three commissioners.
On September 13, 2001, the commissioners issued their report assessing the damages and benefits sustained by each of the affected landowners. In accordance with § 245.120.2, the report included an identification of the property assessed and the owner(s) thereof, the number of acres assessed, the amount of benefits assessed as to each affected landowner, the value of the property taken, and damages other than the value of the property taken. The assessment of benefits included benefits assessed against the affected land owned by the appellants: $6,415,262 for land owned by Intercontinental Engineering Manufacturing Corp.; $5,517,834 for land owned by ProLogis Trust and Security Capital Industrial Trust; $1,908,599 for land owned by the Estate of Ed Young; $1,453,825 for land owned by Wesley and Carol Seyller; $372,760 for land owned by Williams Pipeline Company, L.L.C., and Williams Communications; and $174,078 for land owned by Kitterman, Inc. With the exception of the Seyllers, the appellants timely filed written exceptions to the commissioners' report, claiming that the assessments were excessive, and asking the circuit court to set aside the report. The court granted the Seyllers leave to file their exceptions out of time.
On October 4, 2001, the circuit court took up and heard the appellants' exceptions. At the outset of the hearing, the court advised the parties:
Let me explain a little bit how I intend to proceed this morning. This is a little different and perhaps a little unusual. The statute provides that I'll have a summary proceeding this morning before I approve the Commissioners' Report or disapprove it. A summary hearing gives those of you an opportunity to make a record of such legal arguments, file affidavits, anything you wish to present except live testimony. If you wish to present live testimony, you'll have an opportunity to file exceptions after I make this decision and have a jury trial.
On October 23, 2001, the circuit court entered its judgment confirming the commissioners' report in all respects, including the assessment of benefits against the appellants, which they are challenging on appeal.
This appeal follows.
Appellate Jurisdiction
Before addressing the appellants' claims of error on the merits, we first must address the District's contention that we lack jurisdiction to review the appellants' claims in that they are not authorized by § 245.130.4, governing appeals from a judgment of the circuit court determining exceptions to the commissioners' report filed pursuant to § 245.120.2. In that regard, it is well settled that this court is to determine its jurisdiction in every case, even if not raised by a party. Union Hill Homes Ass'n , Inc. v. RET Dev. Corp. , 83 S.W.3d 87, 92 (Mo.App. 2002).
As provided in § 245.130.1, the appellants timely filed exceptions to the commissioners' assessment of benefits against them for purposes of funding the District's proposed project. Pursuant to § 245.130.2, the exceptions were heard and determined by the circuit court in the commissioners' favor and a judgment entered accordingly. Appellate review of the circuit court's judgment is authorized by § 245.130.4, which provides:
[a]ny person may appeal from the judgment of the court, and upon such appeal there may be determined either or both of the following questions:
(1) Whether just compensation has been allowed for property appropriated; and
(2) Whether proper damages have been allowed for property prejudicially affected by the improvements.
Relying on § 245.130.4, the District argues that our review of the circuit court's judgment is limited to the sole questions specified in the statute, which do not include the question presented on appeal by the appellants of whether the circuit court erred in approving and confirming the commissioners' assessment of benefits. For their part, the appellants contend that the District's jurisdictional argument misinterprets the "crux of [their] appeal [which] relates to the Circuit Court and Commissioners' failure to follow the prescribed procedures set forth in Chapter 245" for assessment of benefits. In that regard, the appellants argue that despite the lack of any language in § 245.130.4 expressly permitting an appeal of the assessment of benefits, appellate review is still available to them because "[u]nder established Missouri law, landowners have a right to appeal a Chapter 245 benefit assessment [1] when the landowners challenge a circuit court's failure to follow the statutory procedures for determining benefits, or [2] when they assert that the trial court's procedures violated constitutionally protected rights."
"The right to appeal is purely statutory and, where a statute does not give a right to appeal, no right exists." Farinella v. Croft , 922 S.W.2d 755, 756 (Mo. banc 1996) (citation omitted) . Thus, in resolving the issue of our jurisdiction to hear this appeal on the merits, we necessarily must interpret the implicated statutes. In interpreting a statute, we are to ascertain the intent of the legislature, giving the language used its plain and ordinary meaning. Ozark Wholesale Beverage Co. v. Supervisor of Liquor Control , 80 S.W.3d 491, 497 (Mo.App. 2002). "Where the legislative intent is made evident from the plain and ordinary meaning of the language used, we are without authority to read into the statute a contrary intent." Id. (citation omitted) .
Giving the language of § 245.130.4 its plain and ordinary meaning, there can be no real dispute that there are only two instances in which an appeal is authorized: (1) compensation for property appropriated by the levee district; or (2) damages for property prejudicially affected by a levee district improvement, neither of which encompass the question raised by the appellants on appeal as to whether the commissioners' assessment of benefits against them was proper. From the language of the statute, it is logical to conclude that the specific questions enumerated in the statute were intended to be the sole and exclusive questions that could be raised on appeal. It seems illogical to suggest that the legislature intended that other issues, including the issue at hand, were subject to appeal, but for some unexplainable reason chose not to include them in the statute. The clear import of the language used is that the legislature intended to limit the scope of appellate review from a judgment of the circuit court determining exceptions that have been heard by the circuit court pursuant to § 245.130.2 to only those questions listed. By expressly mentioning only two questions as being reviewable on appeal from the circuit court, the legislature was implicitly excluding other questions from such review. Groh v. Ballard , 965 S.W.2d 872, 874 (Mo.App. 1998).
Although there are no cases construing the scope of appellate review authorized in § 245.130.4, there are cases which have construed identical language in drainage district cases. Where statutory provisions governing levee districts are the same as statutory provisions governing drainage districts, the authorities construing one will control the interpretation of the other. J.A. Bruening Co. v. Liberty Landing Levee Dist. , 475 S.W.2d 125, 126 (Mo. 1972). That proposition is consistent with the rule set forth in earlier decisions that when two statutes are identical, the authorities construing one will control the interpretation of the latter. State ex rel. Rhine v. Montgomery , 422 S.W.2d 661, 663 (Mo.App. 1967). Section 16, 1913 Mo. Laws 241-42, was the predecessor to § 242.280.5, the drainage district counterpart of § 245.130.4. Section 16, in pertinent part, reads:
Any person may appeal from the judgment of the court, and upon such appeal there may be determined either or both of the following questions: First, whether just compensation has been allowed for property appropriated; and, second, whether proper damages have been allowed for property prejudicially affected by the improvements.
In Birmingham Drainage Dist. v. Chicago , B. Q. R. Co. , 202 S.W. 404 (Mo. 1917), the Missouri Supreme Court addressed the question of whether § 16 limited the right to appeal in drainage district cases to only those issues involving compensation for and damages to land affected by the drainage district. There, several railway companies were seeking to obtain review by the Supreme Court of benefits assessed by the district to properties affected by the construction of improvements. Id . at 405-06. Conceding that under the previous ruling of the Court in In re Mississippi Fox River Drainage District , 270 Mo. 157, 192 S.W. 727 (Mo. banc 1917), they were not authorized by statute to appeal the assessment of benefits, the railway companies dismissed their appeal and sought a writ of error, apparently believing that the Court, although not statutorily authorized to review the assessment of benefits on appeal, could do so by writ of error under its superintending control of inferior courts. Id. at 406. The drainage district filed a motion to quash the writ on the ground that "error does not lie in a case of this character." Id. at 405.
In discussing the issue presented, the Court discussed at length that the assessment of benefits by a drainage district is a legislative function authorized by the general assembly, as opposed to an assessment of damages for injury caused by the district to a landowner's property, which is a judicial function. Id. at 406-08. In that regard, the Court stated that "[t]he assessment and levy of taxes is a legislative function to be exercised in such manner and by such agencies as the Legislature may designate within the limits of its powers." Id . at 407. The Court then recognized that it was within the power of the legislature to designate the circuit court to perform such a function, specifically, a role in the assessment of benefits in drainage district cases, and that if it did so, "it may make the power of that court as full and final as if it were vested in a board of commissioners or an assessor." Id .
With respect to the discretion of the legislature to levy taxes, the Court, quoting from Houck v. Little River Drainage District , 248 Mo. 373, 154 S.W. 739 (Mo. 1913), pointed out that the "discretion of the Legislature, subject only to well-defined constitutional restrictions, must be full and untrammeled; otherwise, revenue laws would never pass the region of judicial debate into the region of execution." Birmingham , 202 S.W. at 407. The Court then recognized that the legislature, in enacting those provisions as to the functioning of drainage districts, including § 16 governing appeals, was obviously differentiating between those proceedings that were legislative and those that were judicial. In that regard, the Court opined that:
[i]t was not only natural, but it seems to us to have been wise and prudent, that the Legislature should, in the interest of facilitating its work, have divided those proceedings which were purely legislative in their nature from those that were constitutionally beyond its control and required judicial action for their validity, and this is exactly what it did.
Id . at 408. In addition to the legislative/judicial function dichotomy as a basis for limiting appellate review in drainage district cases, the Court also recognized a practical purpose for the legislature's doing so, that being that an appeal of the assessment of benefits could unduly jeopardize the prosecution of the district project. Id .
After considering the broad power of the legislature to regulate and control the levying of taxes, including the assessment of benefits by a drainage district, the Court granted the district's motion to quash, stating:
We fail to see any constitutional or other reason why the intention of the Legislature, evident upon the face of this act, to confine our right of review in these cases to the assessment of damages upon appeal taken within the time provided by statute, should not be respected. The right of review in any case is purely statutory, and may, in cases coming within the purview of those provisions of the Code authorizing appeals and writs of error, be made available in either mode. The right to enact these statutes includes the right to repeal or modify them or to limit their application in any manner not inconsistent with some provision of the Constitution limiting the legislative power in that respect. In special proceedings quasi judicial in their nature, like the one before us, and providing affirmatively for a limited review, we see no reason why the legislative right should be extended beyond its terms, either with respect to its extent or the mode prescribed by the Legislature for its exercise.
Id. at 408-09. Stated another way, the Court determined that the legislature had the statutory and constitutional authority to limit the due process to which a landowner was entitled, including there being no right to appeal to this Court, with respect to the assessment of benefits. The Court reiterated this same view in State v. Norborne Land Drainage Dist. Co. of Carroll County , 234 S.W. 344, 348 (Mo. banc 1921), which, as discussed, supra, would apply not only to an interpretation of § 242.280.5, governing drainage district appeals, but to § 245.130.4, governing levee district appeals. Liberty Landing Levee Dist. , 475 S.W.2d at 126; Montgomery , 422 S.W.2d at 663. Thus, with respect to judicial review of the assessment of benefits under § 245.120, due process is satisfied by way of review by the circuit court in accordance with § 245.130.4.
In trying to avoid the disastrous effect of Birmingham on their right to appeal, the appellants contend that the damning discussion of the Court as to the power of the legislature to limit appeals from the assessment of benefits in levee district cases is only dictum in that: "It dismissed the appeal not for jurisdictional reasons, but because the appellant had failed to provide notice of the appeal to all landowners within the district." We disagree. The lone paragraph of discussion dedicated to the notice issue, in comparison to the three pages of published opinion dedicated to the jurisdictional issue, makes it abundantly clear that the lack of notice was an alternative basis for denying the review, not the sole reason, as contended by the appellants. Id . at 409.
In addition to trying to discredit Birmingham , the appellants cite several cases for the proposition that this court has jurisdiction to review the respondent's assessment of benefits under the circumstances in this case. See In re Tri-County Levee Dist. , 42 S.W.3d 779 (Mo.App. 2001); In re Fabius River Drainage Dist. , 35 S.W.3d 473 (Mo.App. 2000); State ex rel. Bates v. Mackin , 208 S.W. 638 (Mo.App. 1918); N. Kansas City Levee Dist. v. Hillside Secs. Co. , 187 S.W. 852 (Mo. 1916). While we would question that those cases could be interpreted as standing for that proposition, ultimately it does not matter, in that in any event, we are bound by the Missouri Supreme Court's holding in Birmingham , which clearly stands foursquare in opposition to the appellants' position. Greene County v. Pennel , 992 S.W.2d 258, 264-65 (Mo.App. 1999). Thus, to the extent that the cases cited by the appellants suggest that an appeal would lie, under § 245.130.4, from the assessment of benefits by the commissioners in a levee district case, they should not be followed.
For the reasons stated, an appeal from the commissioners' assessment of benefits is not authorized by § 245.130.4; hence, we lack jurisdiction to hear the appellants' appeal on the merits. Kansas Ass'n of Private Investigators v. Mulvihill , 35 S.W.3d 425, 428 (Mo.App. 2000).
Conclusion
The appellants' appeal seeking review of the circuit court's judgment approving and confirming the commissioners' report assessing benefits against the appellants with respect to the District's levee improvement project is dismissed for a lack of jurisdiction.
Hardwick, J., concurs.
Lowenstein, J., concurs in separate opinion.
I fully concur with the opinion of Judge Smith. It seems, however, that it would be beneficial for the legislature to enact a provision to chapter 245, which would allow appellate review of an assessment of benefits to an aggrieved party. Any such specific statutory authority allowing a right of appeal could be carefully crafted to allow the district to timely proceed with implementation of the project during the time under appellate review.