Conrad v. Herndon, KCD

• Decision Date: 02 October 1978
• Docket Number: No. KCD,KCD
• Parties: Charles M. CONRAD and Agnes M. Conrad, Plaintiffs, v. Simeon B. HERNDON, Jr. and Anna M. Herndon, Defendants and Third-Party Plaintiffs-Respondents, v. Eugene WRIGHT and Bill Roberts, Third-Party Defendants-Appellants. 29350.
• Court: Missouri Court of Appeals

Page 216

572 S.W.2d 216

Charles M. CONRAD and Agnes M. Conrad, Plaintiffs, v. Simeon B. HERNDON, Jr. and Anna M. Herndon, Defendants and Third-Party Plaintiffs-Respondents, v. Eugene WRIGHT and Bill Roberts, Third-Party Defendants-Appellants.

No. KCD 29350.

Missouri Court of Appeals, Kansas City District.

Oct. 2, 1978.

Feldhausen & Eskridge, Eugene J. Feldhausen, M. Randall Vanet, Kansas City, for third-party defendants-appellants.

Law Offices of S. Preston Williams, David Lee Wells, S. Preston Williams, Thomas E. Barzee, Jr., North Kansas City, for defendants and third-party plaintiffs-respondents.

Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.

PER CURIAM.

Although this case initially involved a multiplicity of parties and a complex mosaic of claims, they have been partially winnowed by a summary judgment which has become the focal point of the case on appeal. It all began as follows: Plaintiffs Charles and Agnes Conrad, as buyers, brought suit for specific performance of a real estate contract, and for actual and punitive damages, against defendants Simeon and Anna Herndon, as sellers; defendants Simeon and Anna Herndon, as third-party plaintiffs, filed a third-party petition for "breach of fiduciary responsibility" against third-party defendants Eugene Wright and Bill Roberts, as "real estate brokers"; third-party defendants Eugene Wright and Bill Roberts, as "real estate brokers", filed a counterclaim for "a real estate commission earned" against defendants and third-party plaintiffs Simeon and Anna Herndon, the sellers.

Plaintiffs Charles and Agnes Conrad filed a motion for summary judgment against defendants and third-party plaintiffs Simeon and Anna Herndon regarding all cause of action asserted by the former against the latter, and defendants and third-party plaintiffs Simeon and Anna Herndon filed a motion for summary judgment in their favor and against plaintiffs Charles and Agnes Conrad regarding all causes of actions asserted by the latter. The trial court sustained the motion for summary judgment filed by defendants and third-party plaintiffs Simeon and Anna Herndon, overruled the motion for summary judgment filed by plaintiffs Charles and Agnes Conrad, declared the real estate contract in question "null and void" because it was "indefinite, uncertain and incomplete" in certain essential respects, and entered judgment in favor of defendants Simeon and Anna Herndon and against plaintiffs Charles and Agnes Conrad regarding all causes of action asserted by the latter against the former. The trial court did not designate the summary judgment a final judgment for purposes of appeal. The third-party claim asserted by defendants and third-party plaintiffs Simeon and Anna Herndon against third-party defendants Eugene Wright and Bill Roberts, and the counterclaim asserted by third-party defendants Eugene Wright and Bill Roberts against defendants and third-party plaintiffs Simeon and Anna Herndon, have never been adjudicated or disposed of by the trial court and are still pending.

Third-party defendants Eugene Wright and Bill Roberts are the only parties who appealed from the summary judgment entered in favor of defendants and third-party plaintiffs Simeon and Anna Herndon and against plaintiffs Charles and Agnes Conrad. As previously noted, defendants and third-party plaintiffs Simeon and Anna Herndon's third-party claim and third-party defendants Eugene Wright and Bill Roberts' counterclaim are still pending in the trial court. This fortuitous set of circumstances raises several grave procedural questions. Was the summary judgment entered by the trial court a final judgment for purposes of appeal and, if so, were third-party defendants Eugene Wright and Bill Roberts "aggrieved" parties within the meaning of Sec. 512.020, RSMo 1969? It is the initial duty of this court to inquire into and determine its jurisdiction sua sponte, and if this court lacks jurisdiction to entertain the instant appeal it should be dismissed. Citizens Ins. Co. of N.J. v. Kansas City, etc., 543 S.W.2d 532, 534 (Mo.App.1976); and Godsy v. Godsy, 521 S.W.2d 449, 450 (Mo.App.1975), cert. denied, 423 U.S. 887, 96 S.Ct. 181, 46 L.Ed.2d 119 (1975).

Rule 81.06 immediately comes to the forefront. It reads, insofar as here pertinent, as follows: "When a separate trial is had before the court without a jury of claims arising out of the same transactions, occurrences or subject matter as the other claims stated or joined in the case the judgment entered shall not be deemed a final judgment for purposes of appeal within the meaning of Section 512.020, Revised Statutes of Missouri, unless specifically so designated by the court in the judgment entered. However, when a separate trial is had before the court without a jury of an entirely separate and independent claim unrelated to any other claims stated or joined in the case, then the judgment entered shall be deemed a final judgment for purposes of appeal within the meaning of Section 512.020, Revised Statutes of Missouri, unless the court orders it entered as an interlocutory judgment to be held in abeyance until other claims, counterclaims or third-party claims are determined. . . ." This portion of Rule 81.06 was broadly construed in Schumacher v. Sheahan Investment Company, 424 S.W.2d 84, 86 (Mo.App.1968), as follows: "(W)hen a separate trial is had in a non-jury case the decision of whether the resulting judgment is or is not final for purposes of appeal turns on the nature of the tried and untried claims. If those tried arose out of the same transactions, occurrences or subject matter as those not tried the judgment is not an appealable, final judgment unless specifically so designated by the court. But if the claims tried are unrelated to those not tried the judgment is deemed a final one for the purpose of appeal unless otherwise designated. . . ." The board construction given Rule 81.06, supra, would appear to facilitate its application in every conceivable situation. However, Crenshaw v. Great Central Ins. Co., 527 S.W.2d 1, 3 (Mo.App.1975), came along and emphasized an additional dimension for determining what constitutes a "final judgment for purposes of appeal" within the purview of Rule 81.06, supra. As held in Crenshaw, not only must tried and untried claims in a non-jury case arise out of the "same transactions, occurrences, or subject matter" in order for a judgment entered on a tried claim to fall within Rule 81.06...