Bildner v. Giacoma
| Decision Date | 04 February 1975 |
| Docket Number | Nos. 35550 and 35551,s. 35550 and 35551 |
| Citation | 522 S.W.2d 83 |
| Parties | Frank J. BILDNER, Plaintiff-Respondent, v. Fred GIACOMA, Extr. of Estate of Joseph Gucciardo, Deceased, and Concettina G. Smith, Defendants-Appellants. . Louis District, Division One |
| Court | Missouri Court of Appeals |
Thomas M. Gioia, St. Louis, for defendants-appellants.
Dempsey, Dempsey & McCarthy, Richard B. Dempsey, Clayton, for plaintiff-respondent.
These two appeals consolidated in this court are from a judgment of the St. Louis County Circuit Court ordering specific performance of an oral contract to devise two parcels of real estate to the respondent and denying the counterclaim of the appellant-executor for a sum of $26,000.00 he alleges was loaned to the respondent by his decedent prior to death and which remains due and unpaid.
The parties shall hereinafter be identified in the position they occupied in the trial court: i.e., Mr. Bildner as the plaintiff, Mr. Giacoma, the defendant-executor, and Mrs. Smith, the defendant.
Since some of the facts are undisputed, we shall set them out at this point. Emma Rose Gucciardo and Joseph Gucciardo were husband and wife; when they married is not revealed in the record. Frank Bildner, the plaintiff, is the natural son of Emma Rose Gucciardo and the step-son of Joseph Gucciardo. Mr. Gucciardo never adopted Frank Bildner. Concettina G. Smith is the natural daughter of Joseph Gucciardo from a prior marriage; she was never adopted by Mrs. Gucciardo after her marriage to Joseph Gucciardo. Fred Giacoma is a long-time friend of Joseph Gucciardo who witnessed Mr. Gucciardo's last will and testament and was named and has been appointed by the probate court of St. Louis County as executor of the estate of Joseph Gucciardo, deceased. Sometime in 1941 the Gucciardos and one Tony Dorsch purchased two unimproved parcels of ground situated at 9925 Lewis & Clark Boulevard, St. Louis County, Missouri, each holding a one-half interest therein. In the same year they constructed and commenced the operation of a service station business on the parcels selling Shell Oil Company products. They continued the operation of this business until 1957 when they leased it to the Shell Oil Company. Emma Rose Gucciardo died on March 8, 1967, and Joseph Gucciardo on May 5, 1970. Prior to his death, on July 18, 1967, Joseph Gucciardo executed his last will and testament wherein after providing for the payment of his just debts, funeral expenses and expenses of his last illness, he made certain specific bequests to his daughter, Mary Dempsey, to his nephew's widow, Jean Gucciardo, and to his daughter, Concettina G. Smith, one of the defendants in this case. In the residuary clause of this will Joseph Gucciardo bequeathed all the rest, residue and remainder of his estate to his daughter, Concettina G. Smith and his stepson, Frank J. Bildner, each to take a one-half share. He further directed that Mr. Giacoma be named executor of his estate. This will, as heretofore stated, was admitted to probate, and at the time of trial was still in the process of probate.
On December 15, 1970, the plaintiff instituted this suit alleging that at the time of Mr. Gucciardo's death, the decedent owned a one-half interest in fee simple in the two parcels of land on which the service station business was situate; that 'On some date unknown now to the plaintiff, but in the year 1941, the plaintiff entered into an oral agreement with the decedents, Emma Rose Gucciardo and Joseph Gucciardo to the effect that if the plaintiff agreed to work at the Shell Service Station located on the said parcels of real property and then operated in part by the two decedents, the surviving decedent would, by his or her will, devise his or her interest to the plaintiff.' (Emphasis supplied). He further alleged that in reliance on these promises from 1941 up to and including 1957, at which time the Gucciardos and Mr. Dorsch ceased operation of the Shell Service Station and leased it to some person unknown to the plaintiff, he, the plaintiff, worked at the service station for the Gucciardos and did perform valuable services, all without compensation. He further alleged that in direct violation of the terms of this agreement Joseph Gucciardo on July 18, 1967, made and executed his will which has been admitted to probate and by which the decedent attempted to devise his interest in these parcels of real property, as part of the residue of his estate, in equal shares to the plaintiff and defendant, Concettina G. Smith. He further alleged that he had no adequate remedy at law and prayed that the court make and enter its decree awarding him the entire interest in said parcels of real property, that it order and direct the executor to make and execute his executor's deed to the plaintiff and deliver same to him, that it direct the executor to pay over to the plaintiff the proceeds of the lease accruing to the estate together with interest thereon from and after the date of death of Joseph Gucciardo; that the court declare the specific bequest of the real property of the deceased located at 11855 North Ranch Drive to the defendant Concettina G. Smith to be null and void as in direct conflict with the provisions of the contract entered into between Joseph Gucciardo and the plaintiff; that the court further order and direct the executor of the estate to pay all specific bequests of cash out of the proceeds of the sale of the real property at 11855 North Ranch Drive, and for whatever other orders and decrees seem fit and proper. In Count II of his petition the plaintiff realleged all the allegations in Count I, further pleaded that the reasonable value of his services rendered to Joseph Gucciardo was in the amount of $19,760.00 and prayed the court that in the event he was denied relied under Count I of his petition he be awarded damages in the amount of $19,760.00, together with interest prorated over the period 1941 through 1957.
Defendant Smith filed her Answer to both Counts of plaintiff's petition admitting the residency of the parties, the accuracy of the descriptions of the two parcels of land, that Mr. Giacoma is the executor of the estate, the alleged interest of the decedent in the real property and the service station business, that said interest was jointly owned by the Gucciardos until the death of Mrs. Gucciardo on March 8, 1967 and denied each and every other allegation in the petition. As affirmative defenses she pleaded the Statute of Frauds, § 432.010 RSMo 1969, V.A.M.S., and the 5 and 10 year Statutes of Limitations, §§ 516.120 and 516.110 RSMo 1969, V.A.M.S. She also alleged that if the allegations made by the plaintiff in his petition are proved then payment has been made of his alleged claim by the terms of the will of Mr. Gucciardo and acceptance of the claimed gift as alleged by the plaintiff himself. The Answer filed by the defendant-executor is in the same terms as that filed by defendant Smith.
The defendant-executor, in addition to his Answer filed a counter-claim, alleging that on July 7, 1967, and July 18, 1967, his decedent delivered to the plaintiff Cashier's Checks in the amounts of $1,000.00, $4,000.00, $15,000.00 and $6,000.00, totalling $26,000.00, of the North County Bank, the Unity Savings & Loan Association and the Baden Bank as a loan to the plaintiff upon the promise of the plaintiff that he would have executed and delivered to the decedent a note and Deed of Trust secured by real estate at 6922 Willow Wood, St. Louis County, Missouri, which the plaintiff and his wife were then purchasing for an amount of $26,000.00; that said note and Deed of Trust were to be executed by both the plaintiff and his wife; that said note and Deed of Trust were never thereafter delivered to the decedent and at the death of the decedent the indebtedness in the sum of $26,000.00 had not been paid and was still due and owing, plus interest thereon from the 18th day of July, 1967. He prayed judgment in that amount. Plaintiff filed a reply to the counter-claim admitting receipt of the money, alleged that it was a gift, and denied each and every other allegation in said counter-claim.
After trial to the court on May 30, 1973, a judgment was entered on Count I of plaintiff's petition wherein it was ordered and decreed that whatever right, title and interest Joseph Gucciardo had in the real estate described in paragraph 2 of Count I of the plaintiff's petition, known as 9925 Lewis and Clark Boulevard, be vested in plaintiff free and clear of any claims of the defendants and to take priority over any bequest or provisions in the last will of the deceased, Joseph Gucciardo, to the contrary. It was further decreed that the plaintiff was entitled 'to any and all rents from said real estate which the deceased Joseph Gucciardo and/or his estate received from and after his death.' Count II of plaintiff's petition was dismissed 'as same was a request in the alternative for relief in the event no relief was given to plaintiff under Count I.' Judgment was also entered in favor of the plaintiff on the counterclaim of the defendant-executor.
Both defendants filed motions to amend the judgment, order and decree, and in the alternative, for a new trial. These motions were taken as submitted and denied, whereupon both defendants filed notices of appeal 'from the order denying his (her) Motion to Amend Judgment, Order and Decree, and in the alternative his (her) Motion for New Trial, entered in this action on the 27th day of June, 1973.' While these notices of appeal were timely filed, it is painfully apparent that they are completely ineffectual to bring anything before this court for review. The denial of a motion of this type is not an appealable judgment. § 512.020 RSMo 1969, V.A.M.S.; A_ _ v. A_ _, 493 S.W.2d 660, 661 (Mo.App.1973). Although we would be justified in dismissing this appeal sua sponte, we shall nevertheless...
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