Excerpt of Mo. Condemnation Practice (Mo.Bar 3d ed. 1996)
By: Tracy Hunsaker Gilroy, Author*
BY; Peter M. Donovan, Author**
CHAPTER 3
DISTRIBUTION OF COMMISSIONERS’ AWARD
I. (§3.1)INTRODUCTION AND SCOPE OF CHAPTER
This chapter will address issues concerning the procedures associated with the distribution of the Commissioners’ Award after the condemning authority has deposited the Award into the court’s registry. Such procedures are governed mainly by § 523.053, RSMo 1994, as set out in §3.4, infra; but other statutory sections and certainly the Supreme Court Rules, as applicable, will be discussed.
This chapter will also address the general strategies surrounding the process of the distribution of the Commissioners’ Award. These strategies are important to consider because the distribution determination is a final order which is dispositive for any future distribution or any future refund of a portion of the Commissioners’ Award after a verdict or settlement is reached.
II. STATUTORY PROCEDURE
A. (§3.2) Named Party Defendants
As previously discussed in Chapter 2, a condemning authority must name all necessary parties as defendants in the condemnation lawsuit. Those necessary parties are persons or entities who, at the time the condemnation petition is filed, are either: (1) in actual possession of the premises to be affected by the taking and claiming title; or (2) claiming title to the premises vis-a-vis a properly recorded document in the county in which the property is located. See § 523.010.3, RSMo 1994; Rule 86.03; and Seliga Shoe Stores, Inc. v. City of Maplewood, 558 S.W.2d 328, 331 (Mo. App. E.D. 1977).
In addition to the necessary parties to the condemnation lawsuit, the condemning authority also has the right to name other persons or entities holding or claiming an interest in the subject property, such as the tenants in sufferance and month-to-month tenants. As an additional example, the condemning authority may also name the remaindermen to a life estate. But the condemning authority is under no duty to name such entities. Yet, if such persons/entities, e.g., the remaindermen, are not so named in the lawsuit, their interest is not bound by the proceedings. See § 523.010.2.
Furthermore, the condemnor’s naming of these necessary and permissive persons and entities as party defendants is not an admission that such persons or entities, in fact, have a compensable interest in the Commissioners’ Award. Such naming of party defendants merely insures that the condemning authority has the ability to acquire that persons’/entities’ interest regardless if the interest is a compensable one.
Therefore, to establish the compensability of an interest, an additional procedural determination must be made. Such discussion can be found in §3.4, infra.
B. (§3.3) Lump Sum Awards
Along with the above permissive and necessary parties to be named in the condemnation of a single property, the condemnor has an additional right to name, within the same petition, other necessary and permissive parties associated with other parcels within the same project for which the properties are to be acquired. Such right is delineated in § 523.020, RSMo 1994, to wit: “Any number of owners, residents in the same county or circuit, may be joined in one petition, and the damages to each shall be separately assessed by the same commissioners.” (Emphasis added.) This “separate” assessment, emphasized in § 523.020, refers to separate assessments for each of the separate properties. State ex rel. State Highway Comm’n v. Allison, 296 S.W.2d 104 (Mo. banc 1956). Therefore, for each single property, the commissioners are to determine the amount of damages as if the property belonged to one person/entity and, thereby, make one lump sum determination of the compensation. Seliga Shoe Stores, Inc. v. City of Maplewood, 558 S.W.2d 328 (Mo. App. E.D. 1977). In other words, the separately named defendants in one property will not have separate awards made to them by the commissioners. This lump sum Commissioners’ Award, therefore, will have to be apportioned by either agreement between all of the named defendants or by court order after a distribution/apportionment hearing. Such distribution procedure is discussed in detail immediately below.
C. (§3.4) Statutory Distribution Procedure
Once this one lump sum award is made by the commissioners, and the Commissioners’ Report is filed, and the Commissioners’ Award pursuant to that Report is paid by the condemning authority, defendants will then receive a Notice of Payment of the Award from the clerk of the participating circuit court. See § 523.040, RSMo 1994. At that time, the defendants have a right to request the court to distribute the award to the proper parties claiming an interest in the subject property.
The distribution of the Commissioners’ Award among defendants is governed by § 523.053, RSMo 1994, to wit:
1. Within thirty days after the commissioners’ award has been paid to the clerk of the court, where there is more than one defendant, those defendants claiming a determinable interest in the proceeds of said award may file with the court an agreement setting out the manner and the percentages in which said award is to be divided among them. If no such agreement is filed during said thirty-day period, any defendant claiming such an interest may by motion for distribution petition the court in which said cause is pending for a determination of the percentage of the commissioners’ award to which each of said parties is entitled; provided, that the plaintiff in said condemnation action may have the right to intervene as an interested party in said proceeding, whether it be by the filing of an agreement among the defendants or by the filing of a motion for distribution of the award, and shall be entitled to prior notice of the filing of said agreement or notice of the filing of the motion for said determination and distribution.
2. Within thirty days after the filing of such motion, the court having jurisdiction of said cause shall determine the percentage of the award to which each party having an interest therein is entitled. Any party aggrieved of the determination of interests made by the court shall have the right of appeal therefrom, and the same shall be considered as a final judgment for such purposes.
3. The respective interests of all parties in the award made as a result of the condemnation action, whether determined by said agreement or by the court, shall be final and shall extend by percentage to any additional compensation awarded or any reduction of the award thereafter made, together with interest, on the trial of exceptions, and said interests established shall be binding on all parties, plaintiff and defendant; provided, that when the determinable interest of any defendant is not related to the difference in the value of the property before and after the taking by condemnation, such share set out in the agreement or the court’s finding thereof shall not be affected by any increase or reduction so long as the final award is not less than such interest.
4. Any evidence relating to the terms of said determination of interest shall not be admissible as evidence before the jury on the trial of said exceptions. [Emphasis added.]
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