Cohen v. Normand Prop. Assocs., L.P.

• Decision Date: 31 May 2016
• Docket Number: WD 78804
• Citation: 498 S.W.3d 473
• Parties: Barton J. Cohen, as Trustee of the Barton J. Cohen Trust Dated December 12, 1990, and as Trustee of the Cass Family 2004 Irrevocable Trust Dated December 23, 2004, General Partners of Desert Associates, a Texas General Partnership, Respondent, v. Normand Property Associates, L.P., Respondent, and Richard L. Brown, Appellant.
• Court: Missouri Court of Appeals

498 S.W.3d 473

Barton J. Cohen, as Trustee of the Barton J. Cohen Trust Dated December 12, 1990, and as Trustee of the Cass Family 2004 Irrevocable Trust Dated December 23, 2004, General Partners of Desert Associates, a Texas General Partnership, Respondent,

v. Normand Property Associates, L.P., Respondent,andRichard L. Brown, Appellant.

WD 78804

Missouri Court of Appeals, Western District.

OPINION FILED: May 31, 2016

Motion for Rehearing and/or Transfer to Supreme Court Denied July 5, 2016.

Application for Transfer Denied September 20, 2016

Greer S. Lang, Kansas City, MO, for respondent Barton J. Cohen.

Michael T. George, St. Louis, MO, for appellant.

Before Division One: Lisa White Hardwick, Presiding Judge, Cynthia L. Martin, Judge and Gary D. Witt, Judge

Cynthia L. Martin

, Judge

Richard L. Brown (“Brown”) appeals following the trial court's entry of a judgment confirming a partition sale of property owned by Desert Associates (“Desert”) and Normand Property Associates, L.P. (“Normand”). Brown argues that the trial court exceeded its jurisdiction in entering the judgment. Brown also argues that in an earlier order authorizing partition of the property, the trial court erroneously found that he was not a real party in interest, and erroneously ordered partition of the property by sale versus in kind. We affirm.

Factual and Procedural Background¹

Desert, a Texas general partnership, and Normand, a Missouri limited partnership, purchased an undeveloped parcel of land (“Property”) in Platte County as tenants in common, with each owning an undivided one-half interest in the Property. When the Property was purchased in 1986, it consisted of approximately 250 acres, but Desert and Normand sold a portion of the Property so that approximately 42.21 acres remained when Desert filed a petition for partition of land (“Petition”) against Normand on June 4, 2013. The Petition alleged that Desert and Normand “have been unable to agree upon an in kind division” of the Property and that the Property “is not susceptible to division in kind without great prejudice to the value of the [Property] and the interests of [Desert] and [Normand].” Thus, the Petition requested that the trial court order partition of the Property by sale and divide the proceeds proportionally between Desert and Normand.

Brown filed a motion to intervene (“Motion to Intervene”) in the partition action. The Motion to Intervene asserted that Brown owns a 45 percent limited partner interest in Normand, and that the Eugene D. Brown Trust, of which Brown is a 50 percent beneficiary, holds a 10 percent limited partner interest in Normand. The Motion to Intervene claimed that because Brown effectively owns an approximate 50 percent limited partner interest in Normand, Brown “indirectly owns an undivided 25% interest in the [Property].” The Motion to Intervene alleged that the Property is susceptible to partition in kind and asserted that Brown's interest in the Property is not represented adequately by Normand. The trial court granted the unopposed Motion to Intervene, and ordered Brown to file an answer (“Answer”) to the Petition. Brown's Answer admitted that Desert and Normand each own an equal, undivided one-half interest in the Property as tenants in common.

The trial court entered a stipulated order of partition sale (“Stipulated Order”), which was approved and signed by attorneys representing each of the parties to the litigation, including Brown. The Stipulated Order found that Desert and Normand are co-tenants in common and that each owned an undivided one-half interest in the Property. The Stipulated Order directed the Property to be sold for cash to the highest bidder at a public sale by auction, with a private real estate group responsible for organizing the auction and the Sheriff of Platte County (“Sheriff”) responsible for making, executing, and delivering a sheriffs deed to the purchaser.

Desert later filed a motion to clarify (“Motion to Clarify”) the Stipulated Order because the Sheriff had advised that to issue a sheriff's deed, the Stipulated Order needed to state that the auction would be conducted by the Sheriff with the assistance of an auctioneer. Brown argued that the requested clarification amounted to a material change in the parties' stipulated agreement to partition the Property by sale as opposed to in kind.² As a result, the trial court set the matter for a bench trial “to determine whether the Property could be partitioned in-kind without great prejudice to the interests of one or both of the co-tenants, Desert and Normand.”

A bench trial was conducted on December 22, 2014. Desert and Normand stipulated that the Property could not be divided in kind without Desert and Normand suffering great prejudice. Brown's attorney argued that because Brown is a limited partner in Normand, he indirectly has an interest in the Property. Brown offered evidence suggesting that Desert and Normand operated as a joint venture to develop the Property. Brown called several witnesses who testified about the feasibility of partitioning the Property in kind.

On January 16, 2015, the trial court entered an order of partition sale (“Order of Partition Sale”). The Order of Partition Sale found that Desert and Normand own the Property as tenants in common, with each entity owning an undivided one-half interest. With respect to Brown's interest in the Property, the trial court found:

Brown's sole relationship to the Property is that he is a limited partner in Normand. As a limited partner, Brown has no interest in the Property; rather his limited partnership interest in Normand is personal property. The Court finds that Brown is not a real party in interest in this partition action. The Court notes that at the hearing, Brown did not claim or present any evidence to demonstrate that he has any interest in the Property, nor did he request that the Court find that he has any interest in the Property.

The trial court went on to conclude:

[I]t is not feasible or practicable to equally divide the Property between Desert and Normand, according to their respective interests, giving each its share, quantity, and quality, relatively considered, without materially lessening the money value of the parties' respective interests, and that dividing the Property in-kind would result in great prejudice to one or both of Desert Associates and Normand.

Thus, the trial court ordered the Property to be partitioned by sale, severing Desert and Normand's joint ownership of the Property as tenants in common.

Brown filed a renewed motion to amend the pleadings to conform to the evidence presented at trial.³ Brown argued that the evidence at trial established the existence of a joint venture between Desert and Normand, and that any member of a joint venture can seek partition. There is no indication in the record that the trial court ever ruled on Brown's motion. Brown also filed a notice of appeal seeking review of the trial court's determination that Brown was not a real party in interest to the partition action. We issued an order dismissing the appeal for want of a final appealable judgment on April 9, 2015.

A sheriffs sale was held on May 27, 2015, following notice and publication as required by the Order of Partition Sale. The Property sold as one parcel to the highest bidder for a total purchase price of $3,465,000. Following the sale, Desert filed a motion to approve and confirm the partition sale. The trial court held a hearing to determine how to divide the proceeds of the sale.

Following the hearing, the trial court entered an order and judgment approving the sheriffs report of the sale and confirming the partition sale (“Judgment”). In its Judgment, the trial court recited that although Brown appeared at the hearing through counsel, Brown had previously been dismissed from the action. The Judgment divided the proceeds of the partition sale between Desert and Normand and awarded attorney's fees to Desert and Normand.

Brown appeals.

Analysis

Brown presents three points on appeal. His first point asserts that the trial court did not have jurisdiction to enter the Judgment because we had not yet issued a mandate following our order dismissing Brown's first appeal. Brown's second point argues that the trial court erroneously concluded in the Order of Partition Sale that Brown was not a real party in interest to the partition action because Brown held equitable title to the Property as a member of an ongoing joint venture to develop the Property. In his third point, Brown contends that the trial court erroneously concluded in the Order of Partition Sale that the Property should be partitioned by sale and not in kind. Because Brown's second point on appeal is dispositive, we address it first.

“Real parties in interest are persons who are directly interested in a lawsuit's subject matter and are entitled to maintain the action.” Welch v. Davis, 114 S.W.3d 285, 292 (Mo.App.W.D. 2003)

(citing Janssen v. Guaranty Land Title Co., 571 S.W.2d 702, 706 (Mo.App. 1978) ).⁴ The determination of whether a person is a real party in interest is a legal conclusion we review de novo. Cf.

Herky LLC v. Holman, 277 S.W.3d 702, 704 (Mo.App.E.D. 2008) (reviewing a decision by State Tax Commission that developers were not real parties in interest de novo because that decision was a conclusion of law).

“A proceeding for partition is strictly statutory.” Phelps v. Domville, 303 S.W.2d 601, 605 (Mo. banc 1957)

. Section 528.030⁵ describes who may bring a partition suit:

In all cases where lands, tenements or hereditaments are held in joint tenancy, tenancy in common, or coparcenary, including estates in fee, for life, or for years, tenancy by the curtesy and in dower, it shall be lawful for any one or more of the parties interested therein, whether adults or minors, to file a petition in the circuit court of the proper county, asking for the admeasurement and setting off of any dower interest therein, if any, and for the

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