Forms Appendix final

• Library: Condemnation Practice 2009

Paul G. Henry*

Jason D. Saey**

Forms Appendix

I. Pleadings

A. Petitions in Condemnation

1. Missouri Highway and Transportation Commission App.(5

2. Public Utility App.(11

3. Land Clearance Authority App.(13

4. County Highway Authority App.(18

5. Petition for Damages—Inverse Condemnation App.(21

B. Service

1 Summons App.(23

2. Request to Circuit Clerk to Serve Own Summons

in Accordance With Rule 54.01 With Return

of Service App.(24

3. Motion for Issuance of Alias/Pluries Summonses,

for Appointment of Special Process Server,

and for Service by Mail App.(25

4. Motion for Appointment of Special Process Server App.(26

5. Motion for Service by Publication App.(27

C. Motions Challenging Jurisdiction and Pleadings

1. Motions to Dismiss

a. Alternative Form App.(28

b. Alternative Form App.(29

2. Motion for a More Definite Statement, or in the

Alternative, to Strike as to Special Benefits App.(30

3. Motion Requiring Plaintiff to Set Forth With

Particularity the Availability of Access

During Construction App.(31

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*Mr. Henry received his B.A., cum laude, 1987, from Missouri State University and J.D., 1990, from Washington University. He is a member of The Missouri Bar Board of Governors. Mr. Henry is a partner in the St. Louis firm of Denlow & Henry.

**Mr. Saey received his B.A., 2000, from Lindenwood University and J.D., 2004, from Washington University. He practices in the areas of condemnation, workers’ compensation, and litigation. Mr. Saey is an attorney for the Missouri Department of Transportation in St. Louis.

D. Procedural Orders

1. Order for Filing Petition and Setting Date and

Place for Hearing App.(32

2. Memorandum Setting Hearing App.(33

3. Memorandum Regarding Affidavit of Publication App.(34

4. Order of Condemnation App.(35

5. Order Appointing Condemnation Commissioners App.(36

6. Qualifying Oath of Commissioners App.(38

7. Instructions to Condemnation Commissioners App.(39

8. Report of Commissioners App.(42

9. Commissioners’ Fee Bill App.(45

10. Plaintiff’s Deposit of Funds Into Registry of the

Court for Commissioners’ Fees and Expenses App.(46

11. Notice of Filing of Commissioners’ Report App.(47

12. Plaintiff’s [Defendant’s] Exceptions to

Commissioners’ Report App.(48

13. Notice of Payment of Award App.(49

14. Election to Abandon Condemnation Proceedings App.(50

15. Order of Abandonment App.(51

16. Application to Withdraw Award

a. Alternative Form 1 (Parties’ Stipulation to

Distribution of Award) App.(52

b. Alternative Form 2 (Court Determination of

Distribution of Award) App.(53

17. Motion for Compliance With § 523.053, RSMo, in

Response to Application to Withdraw Award App.(54

18. Disclaimer of Interest App.(56

19. Order Authorizing Circuit Clerk to Pay

Commissioners’ Award App.(57

E. Surrender of Possession

1. Notice to Surrender Property App.(58

2. Relator’s Petition for Writ of Possession App.(59

3. Motion for Extension of Time to Deliver

Possession App.(61

4. Order of Possession App.(62

5. Writ of Possession App.(63

II. Discovery After Filing Exceptions

A. Interrogatories

1. Plaintiff’s to Defendant App.(64

2. Defendant’s to Plaintiff App.(68

B. Request for Production of Documents

1. Plaintiff’s to Defendant App.(74

2. Defendant’s to Plaintiff App.(75

C. Motion for Entry Upon Land for Inspection and

Other Purposes App.(76

D. Subpoena Duces Tecum of Appraisal Expert App.(77

III. Trial Motions

A. Stipulation App.(79

B. Motion for Jury View App.(80

C. Sample Motion in Limine for Offers to Purchase and

Damages Before the Date of Taking App.(82

IV. Instructions

A. General Instruction—MAI 2.01 [2008 Revision] App.(84

B. Total Take—MAI 9.01 [2008 Revision] App.(89

C. Partial Take—MAI 9.02 [2008 Revision] App.(90

D. Withdrawal of General Benefits—MAI 9.05

[2008 New] App.(92

E. Withdrawal Instruction for Non-Compensable Items of

Damage or Incompetent Evidence—MAI 34.02

[1978 Revision] App.(93

F. Verdict Form—MAI 36.01 [1980 Revision—Modified] App.(94

V. Settlements and Judgments

A. Dismissal of Exceptions App.(95

B. Mutual Dismissal of Exceptions App.(96

C. Stipulation for Consent Judgment App.(97

D. Consent Judgment

1. Additional Payment to Defendant App.(99

2. Refund to Plaintiff App.(100

E. Judgment on Jury Verdict

1. For More Than Commissioners’ Award App.(101

2. For Less Than Commissioners’ Award App.(103

VI. Federal Practice Forms

A. Declaration of Taking App.(104

B. Motion for Order for Delivery of Possession App.(105

C. Order for Delivery of Possession App.(106

D. Answer App.(107

E. Motion to Disburse Funds App.(109

F. Application to Withdraw Funds App.(110

G. Interrogatories of Defendant App.(112

H. Pretrial Compliance by Defendant App.(114

I. Joint Stipulation of Uncontested Fact App.(115

J. Judgment Form App.(116

VII. Miscellaneous

A. Authority for Exercise of Power of Eminent Domain App.(118

B. Fixed Residential Moving Cost Schedule App.(123

I. Pleadings

A. Petitions in Condemnation

1. Missouri Highway and Transportation Commission

Condemnation Petition

1.00 Relator, Missouri Highway and Transportation Commission, is a subordinate branch of the Executive Department of the State of Missouri, created by an act of the General Assembly approved August 4, 1921, and appearing in Laws of Missouri, 1921, First Extra Session, pages 131 to 167, both inclusive, continued under Article IV, Section 29, 1945, Missouri Constitution, as amended January 1, 1980, and may sue in its official name.

2.00 Relator is empowered by Section 227.120, RSMo Supp. 2008, to condemn, in the name of the State of Missouri, land, property, and rights, when necessary for the proper and economical construction and maintenance of state highways and under such conditions to locate, relocate, establish, construct, and maintain such highways in the State of Missouri when necessary to connect the state highways of this state with those of other states, and to comply with any Federal Laws or requirements that are a condition to the receipt to the State of Missouri of Federal Funds appropriated by Congress for highway construction. In compliance with Section 226.130, RSMo 2000, Route 291 in Jackson County has been designated by Relator as a primary highway, said highway being designated and described herein as beginning north of Route 24 running to south of Route 78, in the City of Independence, Missouri. The Congress of the United States has appropriated funds for the construction and improvement of said highway, but in order to secure such funds to the State of Missouri as allotted by said appropriation, it is necessary that said highway be constructed on right-of-way to be acquired for that purpose.

3.00 Relator’s Chief Engineer has prepared and submitted in writing to Relator, in compliance with Section 227.040, RSMo 2000, his recommendations as to detail plans, width of right-of-way, and surfaced roadway and type and character of construction of that part of said highways for which property or rights are being condemned, and also setting forth the general direction in which it is desired to construct said highway. Relator, in compliance with Section 227.050, RSMo 2000, has approved and adopted said detailed plans and recommendations and has located and established this portion of said highway which is now designated as Route 291, Jackson County, said project being identified as J4U0 693, calling for grading, drainage, and paving, together with any incidental work on the above state road, from north of Route 24 to south of Route 78, Station 92+00 to Station 150+66.72; the total length is 2.06 miles.

4.00 Said detail plans show the actual survey, location, and plans for construction, certain limitation of access to, from, and across part of said highways, and, among other things, the location of said highways through or by the lands herein affected and the particular parcels of land sought to be acquired or rights extinguished from the respective defendants. The descriptions of the lands and rights of the defendants being condemned were taken from said surveys, maps, and detail plans and are intended to describe the parcels of defendants’ lands, and only such parcels or rights as are shown on said maps, surveys, and detail plans; and for a more accurate and perfect description of said parcels of land and the rights over them or interests sought to be acquired, reference is hereby made to said maps, surveys, and detail plans now being are filed with the Circuit Clerk of ________________ County, Missouri, and which are adopted by reference as an exhibit and made a part of this Condemnation Petition as though fully set out herein, and reference is also made for the same purpose to the surveyor’s stakes heretofore driven along the line of said highways.

5.00 Relator, in compliance with law, has found, determined, and declared that the public interest and safety require that direct access and rights of access to, from, and across said section of Route ________________be limited as indicated on said plans; that, except at locations and as otherwise specifically shown on said plans, no abutters’ rights in, or of direct access to, from, or across the highway or its right-of-way shall attach or belong to any property abutting on said section of said highway, or to any person merely because of ownership of such abutting property; that there shall be the usual right of access over any location shown on said plans as an entrance, underpass, or as an open public highway being maintained by a governmental agency having authority thereof; that whenever an adjacent outer-roadway or service road is so shown or maintained, there shall be the usual right of direct access between the abutting property and such outer-roadway to which access is not specifically prohibited by the special symbol denoting “No Right of Access” as shown on the plans, and along it to and from the nearest lane of the thruway or a public highway; that, however, during all times while an outer-roadway is being so maintained...