Baumstark v. Jordan
| Decision Date | 17 August 1976 |
| Docket Number | No. 37337,37337 |
| Citation | 540 S.W.2d 611 |
| Parties | Wayne BAUMSTARK, Plaintiff-Appellant, v. Elizabeth JORDAN, Defendant-Respondent. . Louis District, Division One |
| Court | Missouri Court of Appeals |
O. J. Mundwiller, Hermann, McQuie & Deiter, Montgomery City, for plaintiff-appellant.
Jenny Cole & Eckelkamp, James A. Cole, Joseph M. Ladd, Union, for defendant-respondent.
Plaintiff appeals from a judgment of the Circuit Court of Gasconade County granting summary judgment in his action for specific performance of a contract for the sale of land. The decision of the trial court refusing specific performance was premised on a finding that the contract contained a liquidated damages clause providing an agreed upon alternative to respondent's conveyance of the land. The contract was found to be unambiguous as a matter of law. Appellant rejected respondent's tender of $1,000 in compliance with the contractual provision as interpreted. Appellant contended at the trial level and on appeal that the contractual provision for liquidated damages was intended as a remedy simply for breach of the express time-of-the-essence condition of the contract and, therefore, was supplemental to specific performance or at least that the provision rendered the contract ambiguous so as to require extrinsic evidence to establish the parties' intent.
In the trial court, the respondent filed a counterclaim alleging undue influence and fraud in the formation of the contract. The trial court's entry of a summary judgment dealt solely with the issue of contractual interpretation. Action on respondent's counterclaim was expressly continued pending appellant's appeal.
Although not raised by either party, the principal issue on this appeal is the procedural one as to whether the decision of the trial court is a final judgment for purposes of appeal. We reach this issue because it is the duty of the appellate court to order dismissal sua sponte if the judgment is not final, Federal Deposit Insurance Corporation v. Crismon, 516 S.W.2d 57, 58 (Mo.App.1974) and Coonis v. Rogers, 413 S.W.2d 310, 313 (Mo.App.1967).
The general rule of finality of judgment requires that the judgment to be final must dispose of all parties and all issues in the case, Federal Deposit Insurance Corporation v. Crismon, supra, at 58 and Barton v. City of Ellisville, 504 S.W.2d 202 (Mo.App.1973). An order disposing of the principal claim but not counterclaims in a case is generally not considered final, Bennett v. Wood, 239 S.W.2d 325, 327--328 (Mo.1951) and Farmers Mutual Hail Insurance Company v. Garnand, 238 S.W.2d 437, 438 (Mo.App.1951). An exception to this general rule is recognized when a judgment is entered on one of a number of claims arising out of the same transaction, occurrence or subject matter if the trial court specifically designates that the judgment is deemed final for purposes of appeal, Rule 82.06, V.A.M.R. This exception does not appear applicable to the present case because the record reveals no such specific designation, cf. Dotson v. E. W. Bacharach, Inc., 325 S.W.2d 737, 739 (Mo.1959). We are also unconvinced that such a procedure would be appropriate in the...
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First Cmty. Credit Union v. Levison
...characterization of a judgment as final where the decision on one claim implicitly disposes of the other claims [.]” Baumstark v. Jordan, 540 S.W.2d 611, 612 (Mo.App.1976); see e.g., Jefferson v. Am. Fin. Group, Inc., 163 S.W.3d 485, n. 2 (Mo.App. E.D.2005) ( “If a judgment, by implication,......
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Lawrence v. Steadley Co., Inc., 10649
...Citizens Ins. Co. of New Jersey v. Kansas City Commercial Cartage, Inc., 543 S.W.2d 532, 533(1) (Mo.App.1976); Baumstark v. Jordan, 540 S.W.2d 611, 612(1) (Mo.App.1976); Federal Deposit Insurance Corp. v. Crismon, 516 S.W.2d 57, 58(1) (Mo.App.1974); Coonis v. Rogers, 413 S.W.2d 310, 313(2) ...
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First Cmty. Credit Union v. Levison, ED98352
...characterization of a judgment as final where the decision on one claim implicitly disposes of the other claims[.]" Baumstark v. Jordan, 540 S.W.2d 611, 612 (Mo. App. 1976); see e.g., Jefferson v. Am. Fin. Group, Inc., 163 S.W.3d 485, n.2 (Mo. App. E.D. 2005) ("If a judgment, by implication......
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Mullen v. Dike Development Co., Inc.
...State ex rel. Schweitzer v. Greene, 438 S.W.2d 229 (Mo. banc 1969); Caudle v. Kelley, 545 S.W.2d 427 (Mo.App.1976); Baumstark v. Jordan, 540 S.W.2d 611 (Mo.App.1976). In the state of this record it cannot be said that the orders from which plaintiffs would appeal disposed of all the parties......