text:
    STATE of Missouri, Respondent, v. Bradley J. JENNINGS, Appellant.
    No. SD 30198.
    Missouri Court of Appeals, Southern District, Division Two.
    Sept. 28, 2010.
    Dee Wampler, Jason Coatney, Springfield, for Appellant.
    Chris Koster, Atty. Gen., Terrence M. Messonnier, Asst. Atty. Gen., Jefferson City, for Respondent.
   DANIEL E. SCOTT, Chief Judge.

A jury found that Bradley Jennings (“Defendant”) murdered his wife. We reject his challenge to the sufficiency of the evidence, along with his claims of plain error, and affirm his convictions.

Facts and Background

We summarize the evidence as we must view it, focusing only on evidence and inferences tending to show Defendant’s guilt, and ignoring all that might suggest his innocence. See, e.g., State v. Freeman, 269 S.W.3d 422, 425 (Mo. banc 2008); State v. Richardson, 296 S.W.3d 21, 23 & n. 2 (Mo.App.2009).

Defendant and his wife, Lisa, were married for nearly two decades, but the relationship in later years was not a happy one. Lisa talked with several persons about her marital problems and the possibility of dissolving the marriage. In the months leading up to her death, she indicated that she was ready to separate from Defendant, get her own apartment, and be happy. She wanted Christmas 2006 to be a good one for their kids because she planned to leave Defendant after the holidays.

According to family tradition, Defendant, Lisa, their two minor children, and Lisa’s adult daughter, Laci Deckard, had Christmas Eve dinner with Defendant’s mother, then returned to the Jennings home. Sometime after 10 p.m., Ms. Deck-ard and the children went upstairs and fell asleep, Defendant went to bed, and Lisa stayed up to watch a movie. Everyone planned to celebrate Christmas with friends and family at the Jennings home the next day.

Sometime after 1 a.m., Ms. Deckard was awakened by Defendant and Lisa arguing. Lisa was crying and Defendant was suggesting that she was involved with another man. Ms. Deckard could not calm the situation and went home to avoid the argument. When she left, Lisa was in a bathroom off of the master bedroom, and Defendant was on the living room couch wearing his bathrobe and slippers.

Ms. Deckard got home and called back to see if things were all right. Her younger sister answered, hysterically screaming that their mother was dead. Defendant took the phone and Ms. Deckard asked him what he had done. He replied only that Ms. Deckard needed to return.

Deputy Kyle Heidler arrived at the Jennings home shortly after 2 a.m. Defendant and his two children were the only persons there. Defendant was wearing a shirt, jeans, and shoes, and was drinking a beer. Ms. Deckard arrived and noticed Defendant’s change of appearance.

Lisa’s body was in the master bedroom closet. She was shot in the head; there was a lot of blood and exposed brain matter. Based on blood spatter and pooling patterns on the wall and floor, Lisa was shot while she was kneeling or sitting, then someone moved the body. Ballistics testing traced a nearby bullet to Defendant’s revolver, which was under Lisa’s leg.

Defendant claimed that, after arguing with Lisa, he went out to his shop to tinker around and have a beer. He came back, stuffed some Christmas stockings, and went to check on Lisa. He entered the bedroom and saw her in the closet with a head wound. He moved her body, held her briefly, then called 911. He exchanged his robe and slippers for new clothes before anyone arrived, but said he “didn’t really know why.”

Dr. Keith Norton, a forensic pathologist, performed the autopsy. Lisa was killed by a contact gunshot from just above and behind her right ear. The muzzle was so near Lisa’s head that gasses from the gun barrel ripped her scalp apart and left soot on her skull. Dr. Norton testified that such wounds result in “blowback” — body and blood particles that fly back through the air onto the gun and the hand holding it.

Daniel Nash, a Highway Patrol investigator trained in blood pattern analysis and crime scene reconstruction, reviewed the evidence and reconstructed the crime scene. Blood spatter blowback covered nearly four feet of the wall, yet only one blood droplet and no brain or skull matter was found on Lisa’s right hand. Nash concluded that Lisa did not take her own life because her hand and arm, and the gun, did not exhibit the blood and tissue that should have been there had she pulled the trigger.

Blood stains on Defendant’s robe matched Lisa’s DNA profile. They were not transfer stains and did not result from the wearer holding Lisa’s body. Tests also indicated the presence of microscopic “atomized” blood on the robe, consistent with blowback from a weapon fired from a distance of three feet or less. The blood stains on the robe were consistent with a shot fired from a height of 15-20 inches.

Point I

Defendant challenges the sufficiency of the evidence, essentially claiming the proof was insufficient to show this was a homicide, not a suicide. Our standard of review is well-established:

Our review is limited to determining whether there was sufficient evidence from which a reasonable fact-finder could have found Defendant guilty beyond a reasonable doubt. We do not weigh evidence, determine witness credibility, or act as a “super juror” with veto power over the verdicts; but give great deference to the trier of fact. We accept as true the evidence and reasonable inferences favorable to the verdicts and disregard those that are unfavorable.
It matters not, in these regards, that the evidence was solely circumstantial. Circumstantial and direct evidence are afforded the same weight. So long as the evidence meets the minimal appellate standard for due process, we need not disturb the verdicts simply because they depended wholly upon circumstantial proof.

State v. Capraro, 291 S.W.3d 364, 366 (Mo.App.2009)(internal references and citations omitted). We will not weigh evidence anew since jurors might have believed all, some, or none of the testimony of any witness when considered with the facts, circumstances, and other testimony in the case. Freeman, 269 S.W.3d at 425.

The record, as we must view it, supports the convictions. Both Dr. Norton and Nash testified that there should have been substantial blowback onto the gun and the shooter’s arm and hand, but no skull or brain tissue and only one blood droplet was found on Lisa’s hand. Lisa’s blood on Defendant’s robe was not a transfer stain and, thus, did not get there by Defendant holding her body. When Nash confronted Defendant with such evidence, prior to any arrest, Defendant agreed “that someone had to be wearing that robe, standing next to Lisa when she was shot.”

There also was evidence from which the jury could infer that Lisa would not have taken her own life. A paramedic testified that in suicides by firearm, the gun usually is found in the hand or falls, but does not fall under the person. Witnesses testified that Lisa had a good job and was in a positive mood in the days leading up to Christmas, decorating her home and looking forward to sharing the holiday with family.

Further, the jury could have deemed Defendant’s actions consistent with an inference of guilt. See, e.g., State v. Still, 216 S.W.3d 261, 267 (Mo.App.2007). First, Defendant admitted that he moved Lisa’s body before he called 911. Considering the gun’s location and clean appearance, the jury could have inferred that Defendant wiped the weapon and moved the body in order to conceal a crime. Second, Defendant cleaned up and changed clothes before anyone arrived, from which jurors could have deduced a concern about blood and tissue on his clothes and person after he shot Lisa. Third, during Nash’s investigation, Defendant called Nash and said the matter had been “put to bed,” and Nash should mind his own business and leave it alone. Likewise, Defendant told his children not to talk to Deputy Heidler on the night of the shooting. Reasonable jurors could have inferred Defendant’s consciousness of guilt from such conduct.

Defendant’s arguments from evidence favorable to him disregard our standard of review. Viewing the evidence and reasonable inferences favorably to the verdict, we cannot say that a reasonable jury had to acquit Defendant. “There are other potential inferences, but they are not so believable and inescapable as to convince us that they would give rise to a reasonable doubt in the mind of a reasonable juror.” State v. Grim, 854 S.W.2d 403, 413 (Mo. banc 1993). Point I fails.

Point II

Defendant seeks Rule 30.20 plain error review in Point II, claiming the trial court erred in admitting hearsay testimony about Lisa’s divorce plans and whether Defendant ever struck her “even though defense counsel made no objection to it.” Defendant asserts, without adequate Rule 84.04(i) transcript references, that the jury heard hearsay about Lisa’s “alleged state of mind regarding the status of her marriage,” and “several witnesses testified” that Lisa made statements “at various stages of her life regarding the status of her marriage.” These complaints, as best we can tell, relate to a few statements during testimony by Lisa’s friend, Linda Harrison, and Ms. Deckard.

Plain error review is discretionary and involves two steps. State v. Garrison, 276 S.W.3d 372, 374 (Mo.App.2009). First, we consider the facts and circumstances to facially determine if there was plain error — ie., “evident, obvious and clear” error. Id. Unless we identify plain error, we do not reach the second step of determining if manifest injustice or a miscarriage of justice resulted. Id.

Defendant does not get past step one. Hearsay admitted without objection is not plain error. See Masden v. State, 62 S.W.3d 661, 670 n. 4 (Mo.App.2001); State v. Brown, 912 S.W.2d 643, 645 (Mo.App.1995).

Moreover, although Defendant claims the court should have interrupted the trial and stricken testimony to which no objection had been made, a trial judge “should act sua sponte in the trial of a case only in exceptional circumstances.” State v. Wright, 216 S.W.3d 196, 199 (Mo.App.2007).

Missouri courts have been reluctant to criticize a trial court when it has declined to take action on its own motion on behalf of a party during the examination of a witness. Indeed, such invitations have been rejected in all but the most unusual circumstances. See State v. Francis, 60 S.W.3d 662, 671 (Mo.App.2001). There is sound reasoning behind such hesitance to require a trial court to take sua sponte corrective action. In State v. Drewel, 835 S.W.2d 494 (Mo.App.1992), the Eastern District stated:
We do not expect trial judges to assist counsel in the trial of a lawsuit. Too often they are accused of trying “my law suit.” They preside to judge a lawsuit. Sua sponte action should be exercised only in exceptional circumstances. In the case sub judice the judge was in a better position to evaluate the prejudicial effect of the proffered question and, although not objected to, determined that no harmful result occurred. Therefore, the trial court was correct in not offering a sua sponte declaration.
Id. at 498. Uninvited interference by the trial judge in trial proceedings is generally discouraged, as it risks injecting the judge into the role of a participant and invites trial error. Cf. State v. Rhodes, 988 S.W.2d 521, 526-27 (Mo. banc 1999) (discussing claim that trial court should have taken sua sponte action during closing argument). In certain circumstances, a trial judge’s intervention in the proceedings may be unwelcome, as the failure to raise an objection may be a matter of trial strategy. See State v. Francis, 60 S.W.3d at 671.

State v. Roper, 136 S.W.3d 891, 902 (Mo.App.2004)(footnote omitted). Point II is denied.

Point III

Defendant also claims the trial court plainly erred in admitting testimony by two officers that Defendant “assaulted or hit” Lisa. Because Defendant did not object at trial or raise this in his new trial motion, he seeks plain error review under the two-step analysis described in Point II.

Corporal Steve Crain, while describing Defendant’s explanation of his altercation with Lisa over a pornographic video, said Defendant “told me that he hit his wife, once.” Sergeant Mike Rogers testified that Defendant told him that he had never hit a woman, but when Rogers said that he knew better, Defendant replied that he had “never hurt them.”

Generally, uncharged misconduct is not admissible to prove guilt of the crime charged. State v. Ponder, 950 S.W.2d 900, 911 (Mo.App.1997). To violate this rule, the evidence must show the accused “committed, was accused of, was convicted of, or was definitely associated with, the other crimes or misconduct.” Id. at 911-12, quoted in State v. Turner, 242 S.W.3d 770, 777 (Mo.App.2008).

Defendant did not tell Rogers that he hit Lisa or hurt anyone, so those statements are too vague to implicate this rule, let alone constitute plain error. “Vague remarks cannot be characterized as clear evidence to associate the accused with other crimes.” Ponder, 950 S.W.2d at 912.

Crain’s passing comment was mentioned again only when defense counsel made Crain repeat it in cross-examination. It is not “evident, obvious and clear” error to admit relatively insignificant testimony without objection, especially when the defense asks the witness to repeat it. Point denied.

Conclusion

We have carefully considered the plain error claims, but find them without merit. The evidence, viewed favorably to the result, supports the convictions. Defendant’s points are denied. The judgment and convictions are affirmed.

RAHMEYER, P.J., and FRANCIS, J., concur.

      . He also was found guilty on a related charge of armed criminal action.

      . Because most witnesses described the victim by her first name, we also do so with no disrespect intended.

      . Witnesses testified to seeing Lisa with apartment lease papers, and to finding a lease application among her personal effects after her death. Defendant told officers investigating Lisa’s death that their marriage had been problematic for years.

      .At one point that night, Deputy Heidler sought to ask the children a question. Defendant told the children not to talk to the deputy and to go back to their rooms.

      . In a voluntary interview prior to his arrest, Defendant was confronted with this evidence and was asked if he had any explanation. He could not explain it; indicated that it "looks kind of bad, doesn't it”; then ended the interview and left.

        . Defendant’s closing argument at trial was that Lisa killed herself.

      .This court found the evidence in Freeman, which was much weaker than in this case, insufficient to support a conviction. Our supreme court granted transfer and ruled otherwise. See Freeman, 269 S.W.3d at 424-26 & n. 4.

      . For that matter, defense counsel elicited similar hearsay from two other witnesses. He questioned one witness about talks with Lisa on the subject of leaving Defendant, and asked the other about Lisa’s expressions of marital dissatisfaction and intent to divorce Defendant. The sole defense witness also described, on direct examination, marital discord between Lisa and Defendant.


source: Caselaw Access Project

author: ROBERT S. BARNEY, Presiding Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Michael L. ROYER, Appellant.
    No. SD 29967.
    Missouri Court of Appeals, Southern District, Division One.
    Sept. 30, 2010.

      Ellen H. Flottman, Columbia, for Appellant.
    Chris Koster, Atty. Gen., Dora A. Fichter, Asst. Atty. Gen., Jefferson City, for Respondent.
   ROBERT S. BARNEY, Presiding Judge.

Michael L. Royer (“Appellant”) appeals his conviction by a jury for one count of the Class D felony of resisting or interfering with arrest, a violation of section 575.150, RSMo Cum.Supp.2006. He was sentenced by the trial court to seven years in the Missouri Department of Corrections with that sentence to run consecutive to any other existing sentences. In his sole point relied on, Appellant asserts the trial court plainly erred in allowing evidence that marijuana was thrown from the vehicle he was driving during his flight from the authorities. We affirm the judgment and sentence of the trial court.

On January 27, 2009, Appellant was charged via “Amended Felony Information” with one count of the class D felony of “resisting a ... lawful stop.... ” Appellant was also charged as a prior and persistent offender per sections 558.016, RSMo Cum.Supp.2006, and 557.036, RSMo Cum.Supp.2004, based on his prior convictions.

Appellant does not challenge the sufficiency of the evidence to support his conviction. “Viewing the evidence in the light most favorable to the jury’s verdict,” State v. Smith, 185 S.W.3d 747, 751 (Mo.App.2006), the record reveals that on the evening of April 8, 2008, Officer Tom Savard (“Officer Savard”) of the Springfield Police Department was dispatched to the Budget Inn on North Glenstone Avenue as part of an incident investigation. As he pulled into the parking lot he observed “a small blue car in the northwest corner of the parking lot with a male outside the vehicle.” He stated he then saw the vehicle leave the parking lot “quickly” so he drove around to the back of the building where he was “flagged ... down” by several people in the parking lot who indicated the blue car had “completely knocked down” a chain link fence. Officer Savard then pursued the vehicle, which was traveling at an extremely high rate of speed, north on Glenstone Avenue until he eventually lost sight of it. Officer Savard was then told by a man in a pickup truck that a small blue car had turned right onto Valley Water Mill Road at an “extremely fast” speed. Officer Savard informed his dispatcher of this information and he continued his search for the vehicle.

Thereafter, Officer Savard was advised that the vehicle under scrutiny was traveling south on Highway 65. Officer Savard and Officer Chris Welsh (“Officer Welsh”) then traveled to the Kearney Street exit and prepared to set out spike strips at Kearney Street and Mulroy Street. Before the officers were able to set up the spike strips, Appellant’s car came barreling through the intersection at a high rate of speed. Both officers were able to clearly see that Appellant was driving the vehicle and that there was a female passenger with him.

The vehicle then continued on Kearney Street. At that time, Police Chief Justhan Webster (“Chief Webster”) of the Straf-ford Police Department was alerted that a vehicle was traveling at speeds of over 100 miles per hour on Highway OO in his jurisdiction. Chief Webster then attempted to place spike strips in the roadway, but Appellant sped through the area before he was able to get them placed. Chief Webster thereafter pursued Appellant’s vehicle at speeds of over 100 miles per hour, observed Appellant improperly passing vehicles, and saw Appellant force oncoming traffic onto the shoulder of the roadway. Chief Webster continued his pursuit as Appellant turned onto Interstate 44 and drove erratically across the median. Appellant then returned the vehicle to Interstate 44 and continued driving at excessive speeds. Appellant also “crossed in front of a tractor-trailer unit, entered the shoulder of [Interstate] 44, and then made a right turn, through the median again, and entered Highway 00.” Chief Webster lost sight of Appellant at that time, but eventually located the empty vehicle abandoned on the shoulder of Highway 00. A foot pursuit then ensued with the aid of tracking dogs, and Appellant’s passenger, Sally Lentz (“Ms. Lentz”), was located and arrested. Appellant was thereafter apprehended and transported to the Strafford Police Station.

Once at the police station, Chief Webster advised Appellant of his Miranda rights, and Appellant agreed to speak with the officers. Chief Webster then questioned Appellant as to “why he did not stop for [the officers,]” and Appellant indicated that “he did not want [Ms. Lentz] to go to jail.” Chief Webster also asked Appellant “if he knew how many lives he endangered,” and Appellant responded that “he did not care and that the brakes didn’t work on the car.” Thereafter, Appellant remained in custody.

The trial in this matter was held on January 27 and 28, 2009. At trial, Officer Savard testified that during the pursuit he and Officer Walsh stopped on Kearney Street and Mulroy Street to place spike strips in the roadway, but were unable to place the spike strips before Appellant sped through the intersection. After Appellant drove past, Officer Savard located a small “black zip bag” with the name of a men’s cologne on the outside of the bag on the eastbound shoulder of the roadway. When Officer Savard opened the bag he found that it contained “a basketball-size, tightly-wrapped ball of marijuana” and “some unknown pills.” Likewise, Officer Welsh testified that he was present when the bag was recovered by the side of the roadway and that it contained controlled substances. There was no objection made to the testimony of either officer.

Appellant testified that on the evening in question he had been at the Budget Inn with Ms. Lentz and Jason Hale (“Mr. Hale”) and that Ms. Lentz, who Appellant claims was driving the blue car at issue, ran over the fence. He related that after Ms. Lentz “s lid into the fence” Mr. Hale exited the vehicle and Ms. Lentz sped off with Appellant in the passenger seat. He related that at the time Ms. Lentz indicated she was speeding off because “her dad was ... chasing her, following her.” Appellant stated he never saw any police vehicles pursuing them, but he did see a white Chevy pickup truck tailgating them and he believed, based on Ms. Lentz’s assertions, that it was her father chasing them. He stated that at some point he saw Ms. Lentz “toss something out the window” of the vehicle, but he was not sure what it was. He related that once the vehicle was stopped he fled on foot, because Ms. Lentz indicated there were officers approaching the vehicle. Appellant also admitted to numerous prior criminal convictions, including several for distribution of controlled substances, and further admitted that were he to be convicted of the crime at issue it would be his fifth felony conviction.

As previously mentioned, at the close of all the evidence, the jury found Appellant guilty of the crime charged and he was later sentenced by the trial court as a prior and persistent offender to seven years in the Missouri Department of Corrections. This appeal followed.

In his sole point relied on, Appellant maintains the trial court plainly erred in allowing evidence “that marijuana was thrown from the car in which [he] was charged with fleeing....” He asserts the inclusion of such evidence violated his constitutional rights because he “was not charged in this case with any drug offenses, and any probative value the drug evidence may have had was outweighed by the prejudicial impact of the evidence of uncharged crimes.”

Appellant failed to preserve this issue for review, and acknowledges this failing by requesting plain error review. See State v. Shoults, 147 S.W.3d 163, 167 (Mo.App.2004). Rule 30.20 provides that “plain errors affecting substantial rights may be considered in the discretion of the court when the court finds that manifest injustice or miscarriage of justice has resulted therefrom.” “Plain errors are evident, obvious, and clear, and we determine whether such errors exist based on the facts and circumstances of each case.” State v. Johnson, 182 S.W.3d 667, 670 (Mo.App.2005). It is Appellant’s burden to establish the trial court committed an evident, obvious and clear error, State v. Thurman, 272 S.W.3d 489, 498 (Mo.App. 2008), and that there has been a manifest injustice or a miscarriage of justice. State v. Stanley, 124 S.W.3d 70, 77 (Mo.App.2004). “A claim of plain error places a much greater burden on a defendant than an assertion of prejudicial error.” State v. Wright, 216 S.W.3d 196, 199 (Mo.App.2007). “Plain error and prejudicial error are not synonymous terms, and mere allegations of error and prejudice will not suffice for reversal under plain error review.” Id. If facially substantial grounds are not found to exist, the appellate court should decline to exercise its discretion to conduct plain error review. State v. Mayes, 281 S.W.3d 918, 921 (Mo.App.2009). Plain error can serve as the basis for granting relief on direct appeal only if the error was outcome determinative. State v. Baxter, 204 S.W.3d 650, 652 (Mo. banc 2006).

Here, Appellant argues that the officers’ testimony regarding finding the small bag containing marijuana on the shoulder of the roadway is inadmissible evidence of other crimes and wrongly illustrated Appellant’s propensity to commit such crimes. “ ‘It is generally recognized that a criminal defendant has a right to be tried only for the offense for which he is charged.’” State v. Turner, 242 S.W.3d 770, 777 (Mo.App.2008) (quoting State v. Johnson, 161 S.W.3d 920, 924 (Mo.App.2005)). “The general rule concerning the admission of evidence of uncharged crimes, wrongs, or acts is that evidence of prior uncharged misconduct is inadmissible for the purpose of showing the propensity of the defendant to commit such crimes.” State v. Bernard, 849 S.W.2d 10, 13 (Mo. banc 1993), superseded on other grounds by § 566.025, RSMo 1994. However, there are exceptions to this rule. State v. Edwards, 116 S.W.3d 511, 533 (Mo. banc 2003). Evidence of other, uncharged misconduct is admissible and

‘has a legitimate tendency to prove the specific crime charged when it tends to establish: (1) motive; (2) intent; (3) the absence of mistake or accident; (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other; or (5) the identity of the person charged with the commission of the crime on trial.’

Bernard, 849 S.W.2d at 13 (quoting State v. Sladek, 835 S.W.2d 308, 311 (Mo. banc 1992)). “An additional exception is recognized for evidence of uncharged crimes that are part of the circumstances or the sequence of events surrounding the offense charged. This evidence is admissible to present a complete and coherent picture of the events that transpired.” State v. Morrow, 968 S.W.2d 100, 107 (Mo. banc 1998) (internal citation omitted); see also State v. Skillicorn, 944 S.W.2d 877, 887 (Mo. banc 1997), overruled on other grounds by Joy v. Morrison, 254 S.W.3d 885, 889 (Mo. banc 2008). Additionally, “[e]vidence of prior misconduct of the defendant, although not admissible to show propensity, is admissible if the evidence is logically relevant, in that it has some legitimate tendency to establish directly the accused’s guilt of the charges for which he is on trial,” and “if the evidence is legally relevant, in that its probative value outweighs its prejudicial effect.” Bernard, 849 S.W.2d at 13. “The balancing of the effect and value of evidence rests within the sound discretion of the trial court.” Id.

We agree with the State that there are factual similarities between the facts in the instant matter and those found in Shoults, 147 S.W.3d at 163-66. In Shoults, the defendant, who was charged with resisting arrest, threw certain “drug related” items from his vehicle during a pursuit by police. Id. at 165-66. He was convicted of resisting arrest and appealed. Id. On appeal he argued, among other things, that the drug related items entered into evidence “ ‘had no probative value since [the defendant] was not charged with a drug offense.’” Id. at 166. The appellate court reasoned that

[the defendant was charged with resisting arrest based on his flight when [the officer] attempted to stop him by turning on emergency lights and siren. The throwing of objects from the car occurred during the time [the officer] pursued [the] defendant. [The defendant's actions in throwing the objects from his car were part of the circumstances and sequence of events that surrounded [the] defendant’s actions that constituted the offense of resisting arrest.

Id. Accordingly, the reviewing court found that the State “ ‘is permitted to paint a complete and coherent picture of the crime charged and it is not required to sift and separate the evidence and exclude the testimony tending to prove the crime for which a defendant is not on trial.’ ” Shoults, 147 S.W.3d at 166 (quoting State v. King, 588 S.W.2d 147, 150 (Mo.App.1979)). Thus, the court concluded the trial court did not abuse its discretion in admitting the drug related objects into evidence. Shoults, 147 S.W.3d at 167.

Here, as in Shoults, Appellant fled from police and discarded a bag containing marijuana during the throes of the resulting chase. Accordingly, Appellant’s “actions in throwing the objects from [the] car were part of the circumstances and sequence of events that surrounded [his] actions that constituted the offense of resisting arrest.” Id. at 166-67. This evidence was logically relevant in that it tended to show the circumstances surrounding the crime with which he was charged. In addition to showing the sequence of events which led to his arrest, the evidence in this instance had further logical and legal relevance because it clearly illuminated Appellant’s motive and intent in choosing to flee from authorities. The evidence is certainly probative of the fact that Appellant fled because he did not want to be caught with the marijuana in his possession. “It is only where the evidence of other crimes is offered to prove an issue other than propensity that the probative value of such evidence tends to increase.” State v. Dudley, 912 S.W.2d 525, 528 (Mo.App.1995). This Court does not find, on the face of Appellant’s claim, that the trial court committed plain error. Shoults, 147 S.W.3d at 168. Point denied.

The judgment and sentence of the trial court is affirmed.

LYNCH, and BURRELL, JJ, concur.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . All rule references are to Missouri Court Rules (2010).


author: KURT S. ODENWALD, Presiding Judge.

text:
    Rodney TWITTY, Appellant, v. STATE of Missouri, Respondent.
    No. ED 94405.
    Missouri Court of Appeals, Eastern District, Division Four.
    Oct. 12, 2010.

      Rodney Twitty, Bonne Terre, MO, pro se.
    Chris Koster, Attorney General, Mary H. Moore, Assistant Attorney General, Jefferson City, MO, for Respondent.
   KURT S. ODENWALD, Presiding Judge.

Introduction

Rodney Twitty (Twitty) filed a Rule 24.035 motion for post-conviction relief, claiming that he received ineffective assistance of plea counsel when he entered an Alford plea to multiple counts of robbery in the first degree, armed criminal action, robbery in the second degree, and burglary in the first degree. This court affirmed the motion court’s denial of Twitty’s motion for post conviction relief. Twitty v. State, 298 S.W.3d 594 (Mo.App. E.D.2009). Twitty seeks to reopen his post-conviction proceeding by alleging that his post-conviction counsel failed to raise certain grounds for relief in his Rule 24.035 motion, and therefore abandoned him. We dismiss Twitty’s appeal for failure to file a timely Notice of Appeal as required by the rules of appellate procedure.

Factual and Procedural Background

Twitty entered an Alford plea of guilty, in the Circuit Court of the City of St. Louis, to two counts of robbery in the first degree, one count of armed criminal action, three counts of robbery in the second degree, and one count of burglary in the first degree. On November 16, 2007, Twitty appeared for sentencing and was sentenced to a total of seventeen years in prison.

Twitty filed a Rule 24.035 motion for post-conviction relief on January 2, 2008. After an evidentiary hearing, the circuit court denied his motion. Twitty then appealed to this Court. On December 8, 2009, we issued an order and memorandum affirming the trial court’s denial of Twitty’s Rule 24.035 motion for post-conviction relief. Twitty v. State, 298 S.W.3d 594 (Mo.App. E.D.2009). This Court’s mandate issued on Janaury 5, 2010.

On January 5, 2010, Twitty filed a “Motion Requesting Sua Sponte into Abandonment by Attorney [Post-Conviction Counsel] Concerning 24.035 Motion to Vaeate[,] Set Aside or Correct Judgment and Sentence.” In this motion, Twitty sought to reopen his post-conviction motion on grounds that Post-Conviction Counsel “abandoned” him by failing to raise certain claims in Twitty’s amended motion for post-conviction relief. On January 6, 2010, the circuit court entered its judgment denying Twitty’s motion. Twitty filed a notice of appeal to this Court on February 18, 2010.

Discussion

Post-conviction motions filed pursuant to Rule 24.035 are governed by the rules of civil procedure “insofar as applicable.” Rule 24.035(a); Cook v. State, 156 S.W.3d 418 (Mo.App. E.D.2005). Normally, a notice of appeal must be filed “not later than ten days after the judgment or order appealed from becomes final.” Rule 81.04(a); State v. Arnold, 230 S.W.3d 353, 354 (Mo.App. E.D.2007). A judgment becomes final thirty days after its entry, if no timely authorized after-trial motion is filed. Rule 81.05(a)(1). When computing any time prescribed under the Rules of Civil Procedure, the day of the judgment is not included, but the last day of the period so computed is to be included, unless it is a Saturday, Sunday or legal holiday, in which event the period runs until the end of the next day. Rule 44.01(a).

The Missouri Supreme Court has found that the burden placed on a movant to ascertain whether a proper notice of appeal is timely filed is not an unreasonable one. Gehrke v. State, 280 S.W.3d 54, 58 (Mo. banc 2009). The time limits for filing a notice of appeal are mandatory. State v. Thomson, 144 S.W.3d 892 (Mo.App. E.D.2004). If a notice of appeal is untimely filed, the appellate court may dismiss the matter. State v. Curtis, 171 S.W.3d 763 (Mo.App. E.D.2005).

Here, Twitty appeals from the judgment entered on January 6, 2010. The judgment became final thirty days later, on February 5, 2010. Rule 81.05(a)(1). Twitty had ten days after February 5, 2010, to file a notice of appeal to contest that judgment. Ten days from February 5, 2010, was February 15, 2010, which was President’s Day, a legal holiday. Therefore, pursuant to Rule 44.01(a), Twitty had until the following day, February 16, 2010, to file his notice of appeal. Twitty filed his notice of appeal on February 18, 2010, two days beyond the deadline. Although Rule 30.03 allows a party to seek leave to file a notice of appeal out of time, Twitty did not file any such request. Because Twitty’s notice of appeal was untimely filed, we dismiss his appeal.

Conclusion

The appeal is dismissed.

ROBERT G. DOWD, JR., and NANNETTE A. BAKER, JJ., Concur.

      . All rule citations are to Missouri Rules of Civil Procedure (2010), unless otherwise noted.


text:
    ST. LOUIS COUNTY, Missouri, Appellant, v. Richard F. BERCK, and All American Painting, L.L.C., Respondents.
    No. ED 94471.
    Missouri Court of Appeals, Eastern District, Division Four.
    Oct. 12, 2010.

      Paul J. Puricelli, Julie L. Brothers, Stone, Leyton & Gershman, St. Louis, MO, for Appellants.
    Robert Denlow, Paul G. Henry, Denlow and Henry, St. Louis, MO, for Respondent.
   KURT S. ODENWALD, Presiding Judge.

Introduction

St. Louis County (County) appeals from the trial court’s Judgment awarding interest in the amount of $40,438.36 to Richard F. Berck and All American Painting’s (hereafter collectively referred to as Berck). The award of interest was made pursuant to Section 523.045, RSMo 2000 following County’s termination of condemnation proceedings against Berck’s property. County argues that the trial court erred in awarding Berck interest because, pursuant to Section 99.810.1(3) of the Real Property Tax Increment Allocation Redevelopment Act (TIF Act), the trial court lost jurisdiction to act when it did not acquire Berck’s property within five years from the date County approved the redevelopment plan. County further argues that it did not abandon the condemnation action to trigger the application of Section 523.045, nor did Berck suffer a deprivation of property rights under Section 523.045. Because the trial court retained jurisdiction over the condemnation action after County filed its “Memorandum to Court Regarding Jurisdiction” requesting dismissal, and acted within its authority and discretion in awarding interest pursuant to Section 523.045, we affirm the trial court’s judgment.

Factual Background

On July 13, 2004, the St. Louis County Council (the County Council) passed Ordinance Nos. 21,949 and 21,950 approving a Tax Increment Financing redevelopment plan and project known as Northpark. County filed a Petition in Condemnation to condemn several parcels within the North-park redevelopment, including property owned by Berck at 9330 Irvington Avenue (the Single Property). On May 3, 2007, the court-appointed commissioners entered an award for the Single Property for $250,000 to be paid by County to Berck as damages resulting from County’s taking. Both County and Berck filed exceptions to the award. County did not pay the commissioners’ award to either Berck or the clerk of the court.

On December 10, 2009, County filed with the trial court a “Memorandum to Court Regarding Jurisdiction.” In its memorandum, County asserted that the trial court lost subject matter jurisdiction over the case on July 13, 2009, because Section 99.810.1(3) provides that “no property for a redevelopment project shall be acquired by eminent domain later than five years from the adoption of the ordinance approving such redevelopment project.” County referenced another trial court’s decision to dismiss a condemnation proceeding for lack of jurisdiction under similar circumstances and “respectfully submitted] that the Court is without jurisdiction in this cause.”

In response, Berck argued in its Memorandum in Opposition to [County’s] Motion to Dismiss that the trial court lacked authority to dismiss the condemnation petition under the controlling condemnation statutes, and that County’s motion to dismiss should be treated as an abandonment of the condemnation. Berck simultaneously filed a motion for assessment of interest, arguing that County’s motion to dismiss “has the effect of electing an abandonment pursuant to Rule 86.06.” Berck requested an award of interest at the rate of six percent per annum on the amount of the commissioners’ award from the date of the filing of the commissioners’ report up to the date of the abandonment. On January 12, 2010, the trial court entered judgment sustaining Berck’s Motion to Award Interest for abandonment. The trial court awarded $40,438.36 in interest, but then dismissed the case because “the Court has lost jurisdiction for any additional actions.”

County filed its Notice of Appeal to contest the judgment awarding Berck interest on February 19, 2010. This appeal follows.

Points on Appeal

County raises two points on appeal. First, County argues that the trial court erred in awarding Berck interest because the trial court lost subject matter jurisdiction on July 19, 2009, pursuant to Section 99.810.1(3), when County did not acquire Berck’s property within five years from the adoption of the ordinance approving the Northpark Redevelopment Plan. County argues the trial court was without jurisdiction to make a discretionary award of interest.

County presents three arguments in its second point on appeal. First, County alleges that the trial court erred in awarding Berck interest pursuant to Section 523.045 because County did not abandon the condemnation action, and therefore did not trigger the interest award provisions of Section 523.045. Concurrent with this argument, County argues Berck did not introduce any evidence of a deprivation of property rights, which is a necessary precondition to the trial court’s exercise of its discretion to award interest. Finally, County also claims that the trial court did not enter a finding that Berck suffered a deprivation of property rights.

Standard of Review

“[W]hen, as here, the facts of a case are uncontested and the resolution of the issue turns solely on the interpretation of pertinent statutes, ‘a question as to the subject-matter jurisdiction of a court is purely a question of law, which is reviewed de novo.’” George Weis Co. v. Stratum Design-Build, Inc., 227 S.W.3d 486, 489 (Mo. banc 2007), quoting Mo. Soybean Ass’n v. Mo. Clean Water Comm’n, 102 S.W.3d 10, 22 (Mo. banc 2003).

Discussion

The matter before us is a case of first impression involving the interpretation of two separate, yet related statutes involving the taking of private property by the government through statutorily authorized procedures. On appeal, County argues that because the condemnation at issue was initiated as an eminent domain proceeding under the TIF Act, the trial court lost subject matter jurisdiction to proceed on the merits of the condemnation action after the statutory time requirements for acquiring the property under the TIF Act expired. County contends the trial court should have dismissed the condemnation petition because it lacked jurisdiction to take any other action, and therefore, erred in awarding interest to Berck under Section 523.045. Berck counters that once the commissioners enter an award in a condemnation proceeding brought pursuant to Chapter 523, the action may be disposed only by a final judgment or a condemnor’s election to abandon the proceedings, even when the condemnation occurs as an eminent domain proceeding brought pursuant to the TIF Act.

A. Trial court did not lose subject matter jurisdiction over the condemnation action.

In reviewing whether the trial court lost jurisdiction of this action when the time requirements for the acquisition of the Single Property expired under Section 99.810.1(3), we are guided by the Missouri Supreme Court’s pronouncement regarding subject matter jurisdiction in J.C.W. ex rel. Webb v. Wyciskalla, 275 S.W.3d 249 (Mo. banc 2009). As noted by the Supreme Court in Webb, Missouri courts recognize two types of jurisdiction: personal jurisdiction and subject matter jurisdiction, both of which are based on constitutional provisions. Id. at 252. Subject matter jurisdiction is governed by article V of the Missouri Constitution, and is a matter of “the court’s authority to render a judgment in a particular category of case.” Id. at 253. The Missouri Constitution grants “original jurisdiction over all cases and matters, civil and criminal” to the circuit courts. Mo. Const. art. V, sec. 14. Subject matter jurisdiction is derived from the law and cannot be conferred by consent. State ex rel. Lambert v. Flynn, 348 Mo. 525, 154 S.W.2d 52, 57 (1941). When a court lacks subject matter jurisdiction, any action it takes is null and void. Hightower v. Myers, 304 S.W.3d 727, 733 (Mo. banc 2010).

A condemnation action is a civil case over which a trial court has constitutionally vested subject matter jurisdiction. See Webb, 275 S.W.3d at 254. Accordingly, the trial court was properly vested with subject matter jurisdiction over County’s petition for condemnation. County argued the trial court lost subject matter jurisdiction over the condemnation proceeding once County failed to acquire the property at issue within five years of the adoption of the ordinance approving the TIF redevelopment project as required under Section 99.810.1(3) of the TIF Act. The trial court disagreed with County’s argument and awarded Berck interest under Section 523.045.

The trial court properly applied the law, and its award of interest to Berck was not erroneous. County misconstrues a circuit court’s lack of subject matter jurisdiction from the separate and distinct statutorily imposed limitations on a circuit court’s authority to grant relief in a particular case. A circuit court’s statutory authority to act differs from a circuit court’s constitutionally granted subject matter and personal jurisdiction. Hightower, 304 S.W.3d at 733. Accordingly, while the language of Section 99.810.1(3) in the TIF Act may preclude the trial court from allowing County’s acquisition of property by condemnation more than five years after the adoption of the ordinance approving the Northpark redevelopment, this statutory limitation does not deprive the trial court of its constitutionally vested subject matter jurisdiction over the condemnation action.

County cites the Supreme Court’s ruling in State ex rel. Broadway-Washington Assocs., Ltd. v. Manners, 186 S.W.3d 272 (Mo. banc 2006), as support for its claim that the trial court lacked jurisdiction and was required to dismiss the condemnation action after five years had passed from the adoption of the Northpark redevelopment ordinance. Indeed, the facts in Broadway-Washington are analogous to those presented here, and the Supreme Court expressly held that the circuit court was without jurisdiction to enter an order of condemnation where the property at issue was not acquired within five years after the passage of the ordinance approving the redevelopment project. We understand County’s desire to rely on Broadway-Washington, 186 S.W.3d at 272. However, we are no longer guided by Broadway-Washington in light of the Supreme Court’s 2009 holding in Webb, 275 S.W.3d at 252. Broadway-Washington was decided prior to the Webb Court’s clarification of subject matter jurisdiction, and Webb emphatically distinguishes between a circuit court’s statutory limitation to act as opposed to a lack of jurisdiction. 275 S.W.3d at 252-54. This distinction is critical to our analysis of the trial court’s judgment. Following the dictates of Webb, this Court holds that Section 99.810.1(3) of the TIF Act does not strip a circuit court of its subject matter jurisdiction to act in a condemnation case. 275 S.W.3d at 254. Accordingly, the trial court did not err in exercising its statutory authority under the condemnation statutes.

B. TIF Act does not limit trial court’s authority to act under the condemnation statutes.

Having decided that the trial court was properly vested with subject matter jurisdiction over the condemnation action, we next determine whether the TIF Act limited the trial court’s authority to award interest to Berck given the particular facts of this case. In particular, we consider whether Section 99.810.1(3) of the TIF Act, which precludes County’s acquisition of the parcels at issue, mandates the immediate termination of the condemnation action, thereby precluding the trial court from taking any action other than dismissing the condemnation petition as County contends. Berck contends that, as a property owner, he is afforded certain protections under the condemnation statutes set forth in Chapter 523, and that the trial court properly awarded interest because the statutory provisions relating to the “abandonment” of a condemnation action govern County’s condemnation petition. Berck concedes that County lost the power to acquire title to Berck’s property in July 2009, five years after the TIF redevelopment project ordinance was adopted, but asserts that County’s loss of power to acquire title to his property does not divest the trial court of subject matter jurisdiction over the condemnation petition, or of its authority to award interest under the abandonment provisions of Chapter 523. We agree. The trial court properly treated County’s “Memorandum to Court Regarding Jurisdiction” as abandonment, and appropriately afforded Berck the corresponding rights granted him as a property owner under Chapter 523.

In determining the meaning of a statute, “the primary rule is to consider words in their plain and ordinary meaning.” StopAquila.org v. City of Peculiar, 208 S.W.3d 895, 902 (Mo. banc 2006). “[I]t is appropriate to take into consideration statutes involving similar or related subject matter when such statutes shed light upon the meaning of the statute being construed.” Cook Tractor Co., Inc. v. Dir. of Rev., 187 S.W.3d 870, 873 (Mo. banc 2006). Even when a case involves statutes from separate chapters of the Revised Statutes, we consider statutes relating to the same subject matter in pari materia, meaning that we must “interpret and apply statutory provisions with reference to each other to determine legislative intent.” Allright Props., Inc. v. Tax Increment Fin. Comm’n, 240 S.W.3d 777, 779 (Mo.App. W.D.2007). With this guidance, we look to the language of both the TIF Act and the condemnation statutes.

County’s Memorandum to Court Regarding Jurisdiction was based exclusively on Section 99.810.1(3) of the TIF Act and County’s interpretation of that provision. The TIF Act was enacted to foster urban renewal of blighted areas by permitting tax abatements to assist the financing of redevelopment of these areas. Meramec Valley R-III Sch. Dist. v. City of Eureka, 281 S.W.3d 827, 829 (Mo.App. E.D.2009). The TIF Act authorizes a city or municipality to utilize eminent domain to take property to facilitate redevelopment, and undertake a redevelopment project under certain conditions laid out in Section 99.810. Id. Section 99.810.1(3) provides that

no ordinance approving a redevelopment project shall be adopted later than ten years from the adoption of the ordinance approving the redevelopment plan under which such project is authorized and provided that no property for a redevelopment project shall be acquired by eminent domain later than five years from the adoption of the ordinance approving such redevelopment project.

While Section 99.810.1(3) of the TIF Act focuses exclusively on the use of tax increment financing in redevelopment areas, Chapter 523 of the Revised Statutes of Missouri authorizes the use of condemnation proceedings for the appropriation of land within the state for any public purpose. The application of Chapter 523 is not limited to the use of eminent domain in TIF redevelopment areas and the TIF Act does not require the use of condemnation proceedings. Although the TIF Act and condemnation statutes share a common application in certain factual situations, each statute has an application, function and purpose separate from the other.

Section 523.040.1 specifically regulates condemnations, requiring the appointment of commissioners to assess the damages sustained by the owner of the property being taken. Section 523.040.1 further requires the commissioners to file with the court a report assessing such damages. While this statute provides for the transfer of the interest in the property upon the condemning authority’s payment of the commissioners’ award of damages, the statute allows the condemning authority to avoid paying damages by abandoning the condemnation under certain circumstances.

Pertinent to this case, Section 523.045 authorizes the payment of interest on awards of damages owed by the condem-nor to the owners of the condemned property. This provision states that if the condemnor has not paid the damages award, “nor timely filed its written election to abandon the proposed appropriation of said property or rights” within thirty days after the filing of the commissioners’ report, “then interest on the amount of any subsequent verdict for said named persons, or if there be no such verdict, then on the amount of the award, at the rate of six percent per annum from the date of filing the report shall be added to said verdict or award and paid to said named person or to the clerk for them.” Section 523.045. The statute further states:

If, within thirty days after the filing of any such commissioners’ report, the con-demnor shall have neither paid the amount of the award to said persons or to the clerk for them nor filed its written elections to abandon the appropriation, but shall thereafter timely file such written election to abandon, then the court may, upon motion filed by said persons within ten days after the filing of said election, assess against the condemner six percent interest on the amount of the award from the date of the filing of the commissioners’ report to the date of the filing of such election, enter judgment thereon and enforce payment thereof by execution or other appropriate proceeding.

Section 523.045.

Missouri Supreme Court Rule 86 mirrors the condemnation statutes outlined, supra, and guides condemning authorities on condemnation proceedings within the state. Rule 86.06 discusses the condemnation process, including the appointment of commissioners who assess the damages to property owners resulting from the condemnation. Rule 86.06 requires the commissioners to return to the clerk of the court a report setting the amount of net damages, as well as a description of the property for which the damages are assessed. The rule further states that the condemnor takes possession upon making payment, but,

upon failure to pay the assessment aforesaid within ten days after it becomes final or, in the case of a municipality, within thirty days thereafter, the court may, upon motion and notice by the party entitled to such damages, enforce the payment of the same by execution, unless the condemner shall, within said ten or thirty day period, elect to abandon the proposed appropriation of any property, by an instrument in writing to that effect, to be filed with the clerk of such court and entered on the minutes of the court, and to so much as is thus abandoned the assessment of damages shall be void.

Rule 86.06. Furthermore, if such abandonment occurs, “proceedings for the condemnation of the same property shall not be instituted again within two years after such abandonment.” Rule 86.06. As we have stated, “[although Rule 86 governs, its language closely tracks [Section] 523.040, so cases construing the statute are instructive in construing Rule 86.” State ex rel. Missouri Highway and Transp. Comm’n v. Turner, 857 S.W.2d 293, 296 (Mo.App. W.D.1993).

Having carefully reviewed all of the applicable statutes, we are not persuaded that the enactment of Section 99.810.1(3) of the TIF Act was intended to vitiate the statutory protections given to property owners under Chapter 523. As recognized by the Supreme Court, the TIF Act makes no reference to the general eminent domain law, Chapter 523, et seq. City of Arnold v. Homer Tourkakis, et al., 249 S.W.3d 202, 207 (Mo. banc 2008) (Teitelman dissenting). We agree with the dissenting judge’s statement in Tourkakis, that “in passing the TIF act, the legislature assumed that cities seeking to exercise eminent domain as part of a redevelopment project would proceed under the eminent domain powers already granted by applicable eminent domain statutes.” Id. (Teitelman dissenting).

Section 99.810.1(3) of the TIF Act authorizes the use of tax abatements to support the redevelopment of blighted areas. As such, condemnation and eminent domain are tools sometimes used to facilitate such redevelopment. Meramec Valley R-III Sch. Dist., 281 S.W.3d at 829. However, redevelopment projects authorized under the TIF Act do not necessarily utilize condemnation. While Chapter 523 broadly addresses condemnation proceedings, the step-by-step procedures of condemnation are but one potential piece of the larger TIF project. But for the fact that the taking of the property at issue occurred within the context of the TIF Northpark project, we would summarily reject County’s argument that it may seek a dismissal of its condemnation petition without complying with the statutory requirement for abandonment.

We find no language in the TIF Act that allows or dictates any alternative process to abandonment of a condemnation action. Moreover, the language of Section 99.810.1(3) does not expressly preempt the application of condemnation statutes in TIF redevelopments, nor do we find any suggestion of preemption. The condemnation provisions outlined in Chapter 523 were enacted separate and apart from the TIF Act, and do not affect TIF redevelopments that do not utilize eminent domain. We do not view the statutory limitation on a condemning authority’s ability to acquire property in a TIF redevelopment as a limitation on the trial court’s general authority granted under the provisions of Chapter 523. Having thoroughly reviewed the arguments and applicable law, we reject the argument that Section 99.810.1(3) is in conflict with the abandonment provisions of Chapter 523 or otherwise nullifies the rights and obligations provided by the legislature to property owners under Chapter 523. We hold that the condemnation procedures of Chapter 523 and its consistent Rule 86.06 control. The trial court properly applied the law when it applied the abandonment provisions of Chapter 523 to County’s Memorandum to Court Regarding Jurisdiction.

C. County abandoned its condemnation of the parcels at issue.

Having found that the trial court properly applied the law by analyzing the parties’ respective rights under the abandonment provisions of Chapter 523, we now consider whether the statutory prerequisites for abandonment have been met.

The Missouri Legislature devised a procedure for terminating condemnations, which it termed as “abandonment” in Chapter 523. County posits that even if the abandonment provisions under both Chapter 523 and Rule 86.06 apply, the trial court is without authority to award interest on the unpaid commissioners’ award to Berck because County has not made an affirmative election to abandon the condemnation action. County argues that it never filed a written election to abandon the condemnation action that is required under both the statute and the rule before a condemnation petition may be considered abandoned by the condemning authority. Berck argues that once the commissioners determine and report the value of the condemned property, the condemnor’s options are statutorily limited, and the condemnor must opt to abandon the condemnation, accept the commissioners’ award of damages, or file an exception to the commissioners’ report. If the condemnor files an exception to the report, the condemnor must either pay the commissioners’ award of damages to the property owner or the court, or be subject to the potential assessment of interest charges under Section 523.045. Crestwood Commons Redevelopment Corp. v. 66 Drive-In, Inc., 882 S.W.2d 319, 321-22 (Mo.App. E.D.1994).

The record before us shows that County elected to file exceptions to the commissioners’ report, and that County further chose to not pay the commissioners’ award of damages to either Berck or the court clerk. Having exercised its right to challenge the commissioners’ award and pay nothing to the property owner, County now asserts a purported legal right to seek an outright dismissal of the condemnation proceedings while denying Berck his right to seek interest following abandonment under Chapter 523. We find no legal basis that would allow County or any condemning authority to escape from its potential liability for payment of interest under Section 523.045 given the facts as presented in the record, and find County’s argument to be a mere game of semantics.

We acknowledge that County did not file any pleading styled or framed in terms of “abandonment.” The Memorandum to Court Regarding Jurisdiction filed by County sought the dismissal of the condemnation action by operation of law because the property at issue had not been acquired within five years of the adoption of the redevelopment ordinance by the County Council. County’s desired result was to walk away from the condemnation proceedings it initiated in 2006 without paying any money to the property owner. County argues that a request for dismissal is not the equivalent to abandonment under the law, and the trial court was therefore precluded from considering Berck’s rights following abandonment under Section 523.040.1 or Rule 86.06. We disagree.

The legal character of a pleading is determined by its subject matter and not its designation. J.R. Watkins Co. v. Hubbard, 343 S.W.2d 189, 195 (Mo.App.1961). We find instructive our opinion in City of St. Charles v. Imperial Catering Co. Inc., 6 S.W.3d 151, 153 (Mo.App. E.D.1999). In Imperial Catering Co., the city sought to condemn land assessed by the commissioners at $10.2 million. Within thirty days of the filing of the commissioners’ report assessing such damages, the city filed a pleading framed as a dismissal without prejudice. In considering whether the circuit court erred in holding that the city’s actions constituted a partial abandonment, this Court on appeal held that the city’s dismissal was “tantamount to abandonment” and complied with the requirements of Rule 86.06. Accordingly, we held that proceedings for condemnation of the same property could not be instituted again within two years after such abandonment. Id. Here, County argues that our holding in Imperial Catering Co. is inappo-site because the City of St. Charles agreed that its intent was to abandon the condemnation proceedings. County contends that it did not intend to “abandon” the condemnation action here, but merely asked the trial court to apply Section 99.810.1(3), the law under the TIF Act. We are not persuaded by County’s argument.

County’s actions reasonably can be viewed as a strategic move designed to circumvent “abandonment” by characterizing its pleading as a Memorandum to Court Regarding Jurisdiction. Regardless of how County titles its pleading or frames its argument, in the final analysis, County filed a pleading with the trial court before which the condemnation action was pending and asked that court to release County from its obligation to proceed with the condemnation petition it filed in 2006 and from its obligation to pay the commissioners’ award of $250,000. By filing its memorandum, County clearly elected to abandon the condemnation proceedings under Section 523.040.1. Just as we held that a city’s dismissal of its eminent domain action was “tantamount to abandonment” in Imperial Catering Co., we hold the same here. Id. We acknowledge that Section 523.040.1 requires the condemning authority to formally elect to abandon the condemnation of a property by an instrument in writing, and hold that a trial court may treat the condemning authority’s attempt to dismiss its case as its election to abandon the condemnation petition. Because the substance of County’s Memorandum to Court Regarding Jurisdiction is more important than its form, we hold that County “elected” to abandon the condemnation proceeding when it filed its memorandum regarding jurisdiction. Accordingly, the trial court properly treated the condemnation proceedings against Berck as abandonment.

D. Trial court did not abuse its discretion in awarding interest under Section 528.015.

Finally, in view of our finding that the trial court properly applied the law in treating County’s “Memorandum Regarding Jurisdiction” as abandonment, we consider County’s argument that the trial court abused its discretion in awarding Berck interest.

The award of interest following an abandonment of condemnation proceedings was recently addressed by this Court in St. Louis County v. Watson, 311 S.W.3d 886 (Mo.App. E.D.2010). In Watson, the trial court awarded interest on the commissioners’ damage award under Section 523.045 after the condemnor abandoned its condemnation action. Id. The condemnor appealed, arguing that the trial court abused its discretion by awarding interest because the landowners had not introduced evidence that they suffered a deprivation of property rights. The condemnor argued that, as a prerequisite to an award of interest following abandonment, a property owner must prove damage to his or her property beyond the loss of the property owner’s right to receive and use the amount of the commissioners’ award. Id. at 887. We disagreed and held that a trial court may properly exercise its discretion and award interest under Section 523.045 without an evidentiary hearing. In Watson, we expressly held that the property owner’s “loss of the right to receive and use the money is a sufficient basis for the court to award interest.” Id. at 890.

As we explained in Watson, under Section 523.045, the allowance of interest on the money the landowner is entitled to receive when the commissioners’ report is made is not damages suffered as a result of the pendency of the condemnation proceedings. Id. at 889, citing Missouri State Park Bd. v. McDaniel, 513 S.W.2d 447, 451-52 (Mo. banc 1974). “Instead it is a provision for interest as compensation for the loss of his right to receive and use the money, awarded by the commissioners as his damages, while the condemnation proceeding is pending.” McDaniel, 513 S.W.2d at 451-52. This Court has described the award of interest under Section 523.045 as “the measure by which a landowner’s damages are determined when a landowner, who has retained ownership and possession of the property, has nevertheless been deprived of full and free use thereof.” 66, Inc. v. Crestwood Commons Redevelopment Corp., 130 S.W.3d 573, 586 (Mo.App. E.D.2003).

Section 523.045 “recognizes the possibility that a valuable property right may have been invaded or appropriated by the pending condemnation’ and gives the trial court the authority to look at the nature of that invasion on a case by case basis, and, in its discretion, award interest if the landowner has been practically deprived of proprietary rights.’ ” 66, Inc., 180 S.W.3d at 586, quoting Cottleville v. American Topsoil, Inc., 998 S.W.2d 114, 119 (Mo.App.1999). We have recognized that proof of property deprivation may include the difficulty of leasing or selling property and the threat of loss of any investment made to further develop the property. Id. However, as we emphasized more recently in Watson, the “practical deprivation of property rights” only refers to the underlying rationale for the statutory award of interest covering the period when the property has not been taken but is subject to condemnation. 311 S.W.3d at 890. “Because the loss of the right to receive and use the money is a sufficient basis for the court to award interest, a trial court can exercise its discretion to award interest under [the last sentence of Section 523.045] without an evidentiary hearing.” Id.

We decline County’s invitation to depart from our recent holding in Watson, 311 S.W.3d at 890. When the condemnor abandons condemnation proceedings, the property owner is afforded two substantive rights. First, the condemnor may not refile its condemnation action against the same property for a period of two years. Rule 86.06. Second, the property owner gains the right to request an award of interest at the rate of six percent on the amount of the commissioners’ award. Section 523.045. When the trial court has found a practical deprivation of proprietary rights, it may award interest under Section 523.045 to compensate the landowner for its “loss of ability to deal with its property freely.” 66, Inc., 130 S.W.3d at 586.

When applying our holding in Watson to the facts of this case, we conclude that the record supports a finding that Berck has been “practically deprived of proprietary rights” during the pendency of the condemnation proceedings. A commissioners’ award of $250,000 was entered in 2007. County chose not to pay the commissioners’ award, and the award has remained unpaid during the entirety of the condemnation proceedings. As a result of its judgment awarding Berck interest under Section 523.045, the trial court addressed this issue and Berck’s corresponding rights. We hold that the trial court did not abuse its discretion in awarding Berck interest of six percent on the commissioners’ award. County’s appeal is denied.

Conclusion

The judgment of the trial court is affirmed.

ROBERT G. DOWD, JR. and NANNETTE A. BAKER, JJ„ Concur.

      . All subsequent statutory citations are to RSMo 2000, unless otherwise indicated.

      . County referenced the separate Petition in Condemnation it filed seeking to condemn other property owned by Berck at 9400 Irv-ington Avenue and 5337 Glenco Avenue. This petition was heard by a different trial division, reached a different result, and is the subject of a separate appeal.

      . We note that trial court concluded in its judgment that it "lost jurisdiction for additional actions” after it made an award of interest to the property owner under Section 523.045. While the trial court did not have statutory authority to allow County to acquire the property due to Section 98.810.1(3), it retained subject matter jurisdiction over the condemnation petition. The trial court's suggestion that is lost jurisdiction is contrary to the express holding in Webb.


text:
    ST. LOUIS COUNTY, Missouri, Respondent, v. Richard F. BERCK, and All American Painting, L.L.C., Appellants.
    No. ED 93958.
    Missouri Court of Appeals, Eastern District, Division Four.
    Oct. 12, 2010.

      Robert Denlow, Paul G. Henry, Denlow and Henry, St. Louis, MO, for Appellants.
    Paul J. Purieelli, Julie L. Brothers, Stone, Leyton & Gershman, St. Louis, MO, for Respondent.
   KURT S. ODENWALD, Presiding Judge.

Introduction

Richard F. Berck and All American Painting (hereafter collectively referred to as Berck) appeal from the trial court’s Order and Judgment dismissing the condemnation petition filed by St. Louis County (County) for lack of jurisdiction. Berck asserts that County’s motion to dismiss constituted an abandonment of the condemnation action under Section 523.040, RSMo 2000, and that he is entitled to seek certain benefits, including interest, under the condemnation statutes as a consequence of that abandonment. Berck argues that the trial court erred when it failed to treat County’s motion to dismiss as abandonment, and instead dismissed the condemnation action for lack of jurisdiction. Because the trial court retained jurisdiction over the condemnation action after County abandoned the action by filing its motion to dismiss, we reverse the trial court’s judgment of dismissal and remand this matter to the trial court for a determination of Berck’s rights to an award of interest under the condemnation statutes.

Factual Background

On July 13, 2004, the St. Louis County Council (the County Council) passed Ordinance Nos. 21,949 and 21,950 approving a Tax Increment Financing redevelopment plan and project known as Northpark. County filed a Petition in Condemnation to condemn several parcels within the North-park redevelopment, including property owned by Berck at 9400 Irvington Avenue and 5337 Glencoe Avenue (the Joint Property). On May 3, 2007, the court-appointed commissioners entered an award in the amount of $935,000 for the Joint Property to be paid by County to Berck as damages for County’s taking. Both County and Berck filed exceptions to the award. County did not pay the commissioners’ award to either Berck or the clerk of the court.

On October 28, 2009, County filed a Motion to Dismiss its condemnation petition regarding Berck’s Joint Property. County contended that the trial court lost jurisdiction over the condemnation petition because Section 99.810.1(3) provides that “no property for a redevelopment project shall be acquired by eminent domain later than five years from the adoption of the ordinance approving such redevelopment project” and more than five years had lapsed since the adoption of the ordinance approving the Northpark redevelopment project. Berck opposed County’s Motion to Dismiss and argued that County lacked authority to dismiss its condemnation action, and could only abandon the condemnation proceedings in accordance with Section 523.040. Berck also filed a motion for assessment of interest regarding the Joint Property pursuant to Section 523.045, ask-tag the trial court to award him interest at the rate of six percent on the amount of the commissioners’ award from the date the commissioners’ report was filed up to the date of the abandonment. The trial court did not rule on Berck’s motion for assessment of interest, but instead sustained County’s motion to dismiss and ordered the matter involving the Joint Property dismissed for lack of jurisdiction on November 9, 2009.

Berck timely filed his Notice of Appeal with this Court on November 13, 2009. This appeal follows.

Point on Appeal

In his sole point on appeal, Berck alleges that the trial court erred in sustaining County’s Motion to Dismiss the condemnation petition because once a commissioners’ award is made, abandonment is the only means of terminating a condemnation action.

Standard of Review

“[W]hen, as here, the facts of a case are uncontested and the resolution of the issue turns solely on the interpretation of pertinent statutes, ‘a question as to the subject-matter jurisdiction of a court is purely a question of law, which is reviewed de novo.’” George Weis Co. v. Stratum Design-Build, Inc., 227 S.W.3d 486, 489 (Mo. banc 2007), quoting Mo. Soybean Ass’n v. Mo. Clean Water Comm’n, 102 S.W.3d 10, 22 (Mo. banc 2003).

Discussion

The matter before us is a case of first impression involving the interpretation of two separate, yet related statutes involving the taking of private property by the government through statutorily authorized procedures. On appeal, Berck argues that once the commissioners enter an award in a condemnation proceeding brought pursuant to Chapter 523, the case may be disposed only by a final judgment or a condemnor’s election to abandon the proceedings. County argues that because the condemnation at issue was initiated as an eminent domain proceeding under the Real Property Tax Increment Allocation Redevelopment Act, Sections 99.800 et seq. (TIF Act), the trial court lost subject matter jurisdiction to proceed on the merits of the condemnation action after the statutory time requirements for acquiring the property under the TIF Act expired. County contends the trial court properly dismissed the condemnation petition because it lacked jurisdiction to take any other action.

A. Trial court did not lose subject matter jurisdiction over the condemnation action.

In reviewing the trial court’s dismissal of this action for lack of jurisdiction, we are guided by the Missouri Supreme Court’s pronouncement regarding subject matter jurisdiction in J.C.W. ex rel. Webb v. Wyciskalla, 275 S.W.3d 249 (Mo. banc 2009). As noted by the Supreme Court in Webb, Missouri courts recognize two types of jurisdiction: personal jurisdiction and subject matter jurisdiction, both of which are based on constitutional provisions. Id. at 252. Subject matter jurisdiction is governed by article V of the Missouri Constitution, and is a matter of “the court’s authority to render a judgment in a particular category of case.” Id. at 253. The Missouri Constitution grants “original jurisdiction over all cases and matters, civil and criminal” to the circuit courts. Mo. Const. art. V, sec. 14. Subject matter jurisdiction is derived from the law and cannot be conferred by consent. State ex rel. Lambert v. Flynn, 348 Mo. 525, 154 S.W.2d 52, 57 (1941). When a court lacks subject matter jurisdiction, any action it takes is null and void. Hightower v. Myers, 304 S.W.3d 727, 733 (Mo. banc 2010).

A condemnation action is a civil case over which a trial court has constitutionally vested subject matter jurisdiction. See Webb, 275 S.W.3d at 254. Accordingly, the trial court was properly vested with subject matter jurisdiction over County’s petition for condemnation. County argued the trial court lost subject matter jurisdiction over the condemnation proceeding once County failed to acquire the property at issue within five years of the adoption of the ordinance approving the TIF redevelopment project as required under Section 99.810.1(3) of the TIF Act. The trial court agreed with County’s argument and dismissed the condemnation petition for lack of jurisdiction. In so doing, the trial court misconstrued a circuit court’s lack of subject matter jurisdiction from separate and distinct statutorily imposed limitations on a circuit court’s authority to grant relief in a particular case. A circuit court’s statutory authority to act differs from a circuit court’s constitutionally granted subject matter and personal jurisdiction. Hightower, 304 S.W.3d at 733. Accordingly, while the language of Section 99.810.1(3) in the TIF Act may preclude the trial court from allowing County’s acquisition of property by condemnation more than five years after the adoption of the ordinance approving the Northpark redevelopment, this statutory limitation does not deprive the trial court of its constitutionally vested subject matter jurisdiction over the condemnation action.

County cites the Supreme Court’s ruling in State ex rel. Broadway-Washington Assocs., Ltd. v. Manners, 186 S.W.3d 272 (Mo. banc 2006), as support for its claim that the trial court lacked jurisdiction and was required to dismiss the condemnation action after five years had passed from the adoption of the Northpark redevelopment ordinance. Indeed, the facts in Broadway-Washington are analogous to those presented here, and the Supreme Court expressly held that the circuit court was without jurisdiction to enter an order of condemnation where the property at issue was not acquired within five years after the passage of the ordinance approving the redevelopment project. While we understand County’s desire to rely on Broadway-Washington, 186 S.W.3d at 272, we are no longer guided by Broadway-Washington in light of the Supreme Court’s 2009 holding in Webb, 275 S.W.3d at 252. Broadway-Washington was decided prior to the Webb Court’s clarification of subject matter jurisdiction, and Webb emphatically distinguishes between a circuit court’s statutory limitation to act as opposed to a lack of jurisdiction. 275 S.W.3d at 252-54. This distinction is critical to our analysis of the trial court’s Order and Judgment. Following the dictates of Webb, this Court holds that Section 99.810.1(3) of the TIF Act does not strip a circuit court of its subject matter jurisdiction to act in a condemnation case. 275 S.W.3d at 254. Accordingly, the trial court erred in concluding that it lacked jurisdiction to exercise its statutory authority under the condemnation statutes and in dismissing County’s petition for condemnation.

B. TIF Act does not limit trial court’s authority to act under the condemnation statutes.

Having decided that the trial court was properly vested with subject matter jurisdiction over the condemnation action, we next determine whether the trial court’s dismissal of the condemnation petition can be supported on grounds that the trial court did not have statutory authority to proceed with the case. In particular, we consider whether Section 99.810.1(3) of the TIF Act, which precludes County’s acquisition of the parcels at issue, mandates the immediate termination of the condemnation action, thereby denying the trial court the authority to take any action other than dismissing the condemnation petition. Berck contends that, as a property owner, he is afforded certain protections under the condemnation statutes set forth in Chapter 523. Berck argues the trial court erred in dismissing the action because the statutory provisions relating to the “abandonment” of a condemnation action govern County’s condemnation petition. Berck concedes that County lost the power to acquire title to Berck’s property in July 2009, five years after the TIF redevelopment project ordinance was adopted, but asserts that County’s loss of power to acquire title to his property does not divest the trial court of subject matter jurisdiction over the condemnation petition, or of its authority to award interest under the abandonment provisions of Chapter 523. We agree that the trial court erred by not treating the County’s motion to dismiss as an abandonment and failing to accord Berck the corresponding rights granted him as a property owner under Chapter 523.

In determining the meaning of a statute, “the primary rule is to consider words in their plain and ordinary meaning.” StopAquila.org v. City of Peculiar, 208 S.W.3d 895, 902 (Mo. banc 2006). “[I]t is appropriate to take into consideration statutes involving similar or related subject matter when such statutes shed light upon the meaning of the statute being construed.” Cook Tractor Co., Inc. v. Dir. of Rev., 187 S.W.3d 870, 873 (Mo. banc 2006). Even when a case involves statutes from separate chapters of the Revised Statutes, we consider statutes relating to the same subject matter in pan materia, meaning that we must “interpret and apply statutory provisions with reference to each other to determine legislative intent.” Allright Props., Inc. v. Tax Increment Fin. Comm’n, 240 S.W.3d 777, 779 (Mo.App. W.D.2007). With this guidance, we look to the language of both the TIF Act and the condemnation statutes.

County’s Motion to Dismiss was based on Section 99.810.1(3) of the TIF Act. The TIF Act was enacted to foster urban renewal of blighted areas by permitting tax abatements to assist the financing of redevelopment of these areas. Meramec Valley R-III Sch. Dist. v. City of Eureka, 281 S.W.3d 827, 829 (Mo.App. E.D.2009). The TIF Act authorizes a city or municipality to utilize eminent domain to take property to facilitate redevelopment, and undertake a redevelopment project under certain conditions laid out in Section 99.810. Id. Section 99.810.1(3) provides that

no ordinance approving a redevelopment project shall be adopted later than ten years from the adoption of the ordinance approving the redevelopment plan under which such project is authorized and provided that no property for a redevelopment project shall be acquired by eminent domain later than five years from the adoption of the ordinance approving such redevelopment project.

While Section 99.810.1(3) of the TIF Act focuses exclusively on the use of tax increment financing in redevelopment areas, Chapter 523 of the Revised Statutes of Missouri authorizes the use of condemnation proceedings for the appropriation of land within the state for any public purpose. The application of Chapter 523 is not limited to the use of eminent domain in TIF redevelopment areas and the TIF Act does not require the use of condemnation proceedings. Although the TIF Act and condemnation statutes share a common application in certain factual situations, each statute has an application, function and purpose separate from the other.

Section 523.040.1 specifically regulates condemnations, requiring the appointment of commissioners to assess the damages sustained by the owner of the property being taken. Section 523.040.1 further requires the commissioners to file with the court a report assessing such damages. While this statute provides for the transfer of the interest in the property upon the condemning authority’s payment of the commissioners’ award of damages, the statute also allows the condemning authority to avoid paying damages by abandoning the condemnation under certain circumstances.

Pertinent to this case, Section 523.045 authorizes the payment of interest on awards of damages owed by the condem-nor to the owners of the condemned property. This provision states that if the condemnor has not paid the damages award, “nor timely filed its written election to abandon the proposed appropriation of said property or rights” within thirty days after the filing of the commissioners’ report, “then interest on the amount of any subsequent verdict for said named persons, or if there be no such verdict, then on the amount of the award, at the rate of six percent per annum from the date of filing the report shall be added to said verdict or award and paid to said named person or to the clerk for them.” Section 523.045. The statute further states:

If, within thirty days after the filing of any such commissioners’ report, the con-demnor shall have neither paid the amount of the award to said persons or to the clerk for them nor filed its written elections to abandon the appropriation, but shall thereafter timely file such written election to abandon, then the court may, upon motion filed by said persons within ten days after the filing of said election, assess against the condemner six percent interest on the amount of the award from the date of the filing of the commissioners’ report to the date of the filing of such election, enter judgment thereon and enforce payment thereof by execution or other appropriate proceeding.

Section 523.045.

Missouri Supreme Court Rule 86 mirrors the condemnation statutes outlined, supra, and guides condemning authorities on condemnation proceedings within the state. Rule 86.06 discusses the condemnation process, including the appointment of commissioners who assess the damages to property owners resulting from the condemnation. Rule 86.06 requires the commissioners to return to the clerk of the court a report setting the amount of net damages, as well as a description of the property for which the damages are assessed. The rule further states that the condemnor takes possession upon making payment, but,

upon failure to pay the assessment aforesaid within ten days after it becomes final or, in the case of a municipality, within thirty days thereafter, the court may, upon motion and notice by the party entitled to such damages, enforce the payment of the same by execution, unless the condemner shall, within said ten or thirty day period, elect to abandon the proposed appropriation of any property, by an instrument in writing to that effect, to be filed with the clerk of such court and entered on the minutes of the court, and to so much as is thus abandoned the assessment of damages shall be void.

Rule 86.06. Furthermore, if such abandonment occurs, “proceedings for the condemnation of the same property shall not be instituted again within two years after such abandonment.” Rule 86.06. As we have stated, “[although Rule 86 governs, its language closely tracks [Section] 523.040, so cases construing the statute are instructive in construing Rule 86.” State ex rel. Missouri Highway and Transp. Comm’n v. Turner, 857 S.W.2d 293, 296 (Mo.App. W.D.1993).

Having carefully reviewed all of the applicable statutes, we are not persuaded that the enactment of Section 99.810.1(3) of the TIF Act was intended to vitiate the statutory protections given to property owners under Chapter 523. As recognized by the Supreme Court, the TIF Act makes no reference to the general eminent domain law, Chapter 523, et seq. City of Arnold v. Homer Tourkakis, et al., 249 S.W.3d 202, 207 (Mo. banc 2008) (Teitelman dissenting). We agree with the dissenting judge’s statement in Tourkakis, that “in passing the TIF act, the legislature assumed that cities seeking to exercise eminent domain as part of a redevelopment project would proceed under the eminent domain powers already granted by applicable eminent domain statutes.” Id. (Teitelman dissenting).

Section 99.810.1(3) of the TIF Act authorizes the use of tax abatements to support the redevelopment of blighted areas. As such, condemnation and eminent domain are tools sometimes used to facilitate such redevelopment. Meramec Valley R-III Sch. Dist., 281 S.W.3d at 829. However, redevelopment projects authorized under the TIF Act do not necessarily utilize condemnation. While Chapter 523 broadly addresses condemnation proceedings, the step-by-step procedures of condemnation are but one potential piece of the larger TIF project. But for the fact that the taking of the property at issue occurred within the context of the TIF Northpark project, we would summarily reject County’s argument that it may seek a dismissal of its condemnation petition without complying with the statutory requirement for abandonment.

We find no language in the TIF Act that allows or dictates any alternative process to abandonment of a condemnation action. Moreover, the language of Section 99.810.1(3) does not expressly preempt the application of condemnation statutes in TIF redevelopments, nor do we find any suggestion of preemption. The condemnation provisions outlined in Chapter 523 were enacted separate and apart from the TIF Act, and do not affect TIF redevelopments that do not utilize eminent domain. We do not view the statutory limitation on a condemning authority’s ability to acquire property in a TIF redevelopment as a limitation on the trial court’s general authority granted under the provisions of Chapter 523. Having thoroughly reviewed the arguments and applicable law, we reject the argument that Section 99.810.1(3) is in conflict with the abandonment provisions of Chapter 523 or otherwise nullifies the rights and obligations provided by the legislature to property owners under Chapter 523. We hold that the condemnation procedures of Chapter 523 and its consistent Rule 86.06 control. The trial court erred when it dismissed the condemnation petition and failed to consider the abandonment provisions of Chapter 523.

C. County abandoned its condemnation of the parcels at issue.

Having found that the abandonment provisions of Chapter 523 apply to County’s condemnation action, we now consider whether the statutory prerequisites for abandonment have been met.

The Missouri Legislature devised a procedure for terminating condemnations, which it termed as “abandonment” in Chapter 523. County posits that even if the abandonment provisions under both Chapter 523 and Rule 86.06 apply, the trial court is without authority to award interest on the unpaid commissioners’ award because County has not made an affirmative election to abandon the condemnation action. County argues that it never filed a written election to abandon the condemnation action that is required under both the statute and the rule before a condemnation petition may be considered abandoned by the condemning authority. Berck argues that once the commissioners determine and report the value of the condemned property, the condemnor’s options are statutorily limited, and the condemnor must opt to abandon the condemnation, accept the commissioners’ award of damages, or file an exception to the commissioners’ report. If the condemnor files an exception to the report, the condemnor must either pay the commissioners’ award of damages to the property owner or the court, or be subject to the potential assessment of interest charges under Section 523.045. Crestwood Commons Redevelopment Corp. v. 66 Drive-In, Inc., 882 S.W.2d 319, 321-22 (Mo.App. E.D.1994).

The record before us shows that County elected to file exceptions to the commissioners’ report, and that County further chose to not pay the commissioners’ award of damages to either Berck or the court clerk. Having exercised its right to challenge the commissioners’ award and pay nothing to the property owner, County now asserts a purported legal right to seek an outright dismissal of the condemnation proceedings while denying Berck his right to seek interest following abandonment under Chapter 523. We find no legal basis that would allow County or any condemning authority to escape its potential liability for payment of interest under Section 523.045 given the facts as presented in the record, and find County’s argument to be a mere game of semantics.

We acknowledge that County did not file any pleading styled or framed in terms of “abandonment.” The motion filed by County sought the dismissal of the condemnation action by operation of law because the properties at issue had not been acquired within five years of the adoption of the redevelopment ordinance by the County Council. County’s desired result was to walk away from the condemnation proceedings it initiated in 2006 without paying any money to the property owner. County argues that a motion to dismiss is not the equivalent of abandonment under the law, and the trial court was therefore precluded from considering Berck’s rights following abandonment under Section 523.040.1 or Rule 86.06. We disagree.

The legal character of a pleading is determined by its subject matter and not its designation. J.R. Watkins Co. v. Hubbard, 343 S.W.2d 189, 195 (Mo.App.1961). We find instructive our opinion in City of St. Charles v. Imperial Catering Co., Inc., 6 S.W.3d 151, 153 (Mo.App. E.D.1999). In Imperial Catering Co., the city sought to condemn land assessed by the commissioners at $10.2 million. Within thirty days of the filing of the commissioners’ report assessing such damages, the city filed a pleading framed as a dismissal without prejudice. The trial court treated the motion to dismiss as abandonment by the condemning authority. On appeal, this Court affirmed the trial court’s judgment and held that the city’s dismissal of its condemnation action was “tantamount to abandonment” and appropriately governed by Rule 86.06. Accordingly, we held that proscriptions of Rule 86.06 applied, and that proceedings for condemnation of the same property could not be instituted again within two years after such abandonment. Id. Here, County argues that our holding in Imperial Catering Co. is inappo-site because the City of St. Charles agreed that its intent was to abandon the condemnation proceedings. County contends that it did not intend to “abandon” the condemnation action here, but merely asked the trial court to apply Section 99.810.1(3), the law under the TIF Act. We are not persuaded by County’s argument.

County’s actions reasonably can be viewed as a strategic move designed to circumvent “abandonment” by characterizing its pleading as a motion to dismiss. Regardless of how County titles its pleading or frames its argument, in the final analysis, County filed a pleading with the trial court before which the condemnation action was pending in which County asked the court to release County from its obligation to proceed with the condemnation action and from its obligation to pay the commissioners’ award of $935,000. By filing this pleading, County elected to abandon the condemnation proceedings under Section 523.040.1. Just as we held that a city’s dismissal of its eminent domain action was “tantamount to abandonment” in Imperial Catering Co., we hold the same here. Id. We acknowledge that Section 523.040.1 requires the condemning authority to formally elect to abandon the condemnation of a property by an instrument in writing, and hold that a trial court may treat the condemning authority’s motion to dismiss its case as its election to abandon the condemnation petition. Because the substance of County’s motion to dismiss is more instructive than its form, we hold that County “elected” to abandon the condemnation proceeding when it filed its motion to dismiss. Accordingly, the trial court erred in dismissing the condemnation proceedings against Berck rather than treating County’s motion to dismiss as abandonment. The trial court has both constitutional subject matter jurisdiction and statutory authority under Chapter 523 to consider Berck’s rights under Section 523.045. Berck’s point on appeal is granted.

Conclusion

The judgment of the trial court is reversed and remanded with instructions that the trial court enter an order that County has abandoned its condemnation petition in this matter, and determine whether Berck has suffered a deprivation of property rights warranting the award of interest under Section 523.045.

ROBERT G. DOWD, JR., J., and NANNETTE A. BAKER, J., Concur.

      . All subsequent statutory citations are to RSMo 2000, unless otherwise indicated.

      . County filed a separate Petition in Condemnation to condemn another parcel owned by Berck at 9330 Irvington Avenue. This petition was heard by a different trial division and is the subject of a separate appeal.


author: PER CURIAM.

text:
    STATE of Missouri, Plaintiff/Respondent, v. Michael L. WATSON, Defendant/Appellant.
    No. ED 93549.
    Missouri Court of Appeals, Eastern District, Division Five.
    Oct. 12, 2010.
    Michael L. Watson, acting pro se, Fes-tus, MO.
    Thomas E. Hollingsworth, Jefferson County, MO, for Respondent.
    Before GARY M. GAERTNER, JR., P.J., MARY K. HOFF, J., and PATRICIA L. COHEN, J.
   ORDER

PER CURIAM.

Michael L. Watson (Defendant) appeals from the trial court’s judgment, following a jury trial, convicting him of second degree tampering, Section 569.090. On appeal, Defendant argues that the trial court committed instructional error when it failed to instruct the jury sua sponte regarding a claim of right defense to an offense of tampering. We affirm the trial court’s judgment.

We have reviewed the briefs of the parties and the record on appeal and find Defendant is entitled to no relief on appeal. An extended opinion would have no precedential value. We have, however, provided a memorandum opinion for the use of the parties setting forth the reasons for our decision.

We affirm the trial court’s judgment pursuant to Rule 30.25(b).


text:
    Ronald RANSOM, Appellant, v. STATE of Missouri, Respondent.
    No. ED 93537.
    Missouri Court of Appeals, Eastern District, Division Two.
    Oct. 12, 2010.
    Alexandra Johnson, Saint Louis, MO, for Appellant.
    Chris Koster, Attorney General, Shaun J. Mackelprang, Assistant Attorney General, Jefferson City, MO, for Respondent.
    Before GLENN A. NORTON, P.J., KATHIANNE KNAUP CRANE, J. and GEORGE W. DRAPER III, J.
   ORDER

PER CURIAM.

Ronald Ransom appeals the judgment denying his Rule 29.15 motion for post-conviction relief without an evidentiary hearing. We find that the motion court’s findings of fact and conclusions of law are not clearly erroneous. An extended opinion would have no precedential value. We have, however, provided the parties a memorandum setting forth the reasons for our decision. We affirm the judgment under Rule 84.16(b).


text:
    STATE of Missouri, Respondent, v. Chad MERGELMEYER, Appellant.
    No. ED 93429.
    Missouri Court of Appeals, Eastern District, Division Four.
    Oct. 12, 2010.
    Margaret M. Johnston, Office of the Missouri Public Defender, Columbia, MO, for Appellant.
    Chris Koster, Attorney General, Richard A. Starnes, Assistant Attorney General, Jefferson City, MO, for Respondent.
    Before: KURT S. ODENWALD, P.J., ROBERT G. DOWD, JR., J. and NANNETTE A. BAKER, J.
   ORDER

PER CURIAM.

Chad Mergelmeyer (Mergelmeyer) appeals from the judgment of the trial court, following a jury trial, convicting him of first-degree involuntary manslaughter. Mergelmeyer alleges the trial court erred in rulings with regard to voir dire and the admission of evidence. Finding no error by the trial court on either point, we affirm.

We have reviewed the briefs of the parties, the legal file, and the record on appeal and find the claims of error to be without merit. No error of law appears. An extended opinion reciting the detailed facts and restating the principles of law applicable to this case would serve no jurisprudential purpose. The parties have been furnished with a memorandum for their information only, setting forth the reasons for our decision. We affirm the judgment pursuant to Rule 30.25(b).