D'AGOSTINO v. D'AGOSTINO, WD 58903.

• Decision Date: 02 October 2001
• Docket Number: No. WD 58903.,WD 58903.
• Citation: 54 S.W.3d 191
• Parties: John D'AGOSTINO, Respondent, v. Paul D'AGOSTINO, Appellant.
• Court: Missouri Court of Appeals

54 S.W.3d 191

John D'AGOSTINO, Respondent, v. Paul D'AGOSTINO, Appellant.

No. WD 58903.

Missouri Court of Appeals, Western District.

August 14, 2001.

Rehearing Denied October 2, 2001.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Michelle M. Suter, Leakwood, KS, Attorney for Appellant.

Michael A. Preston, Kansas City, Attorney for Respondent.

Before LOWENSTEIN, P.J., ULRICH, J. and KENNEDY, SR. J.

LOWENSTEIN, Presiding Judge.

Overview

The litigants are brothers who own equal shares in a corporation that has two divisions, construction and service. One of the brothers filed suit to dissolve the corporation judicially under §§ 351.494 and 351.502, RSMo 2000. The main disagreement during the proceedings involved the equitable distribution of equipment and inventory, much of which were linked to both divisions. The brothers reached an agreement on the bulk of the property, but disagreed over some of the property and allocation of the corporation's bills to each of the respective divisions. The trial court, sitting as a court of equity, and with the aid of a special master, inventoried all of the property, attempted to distribute the property pursuant to an agreement, allocated responsibility for company bills, and effectuated the dissolution into two separate entities. The trial judge's frustration with the excessive time taken in the legal proceedings due to wrangling by the litigants is echoed by this court. The presentation of the facts, procedural history, and understanding of the points raised by the Appellant have been most diffuse.

It is only because this court desires to allow the parties to bring resolution to their differences that some of the deficiencies with regard to Rule 84.04 have been overlooked.

Factual and Procedural History

John D'Agostino (hereafter John or Respondent) and Paul D'Agostino (hereafter Paul or Appellant) are brothers and equal owners of Anthony, Inc. Anthony, Inc. has essentially two divisions: one division, which is supervised by Paul, provides service for residential and commercial plumbing, heating and cooling; the other division, which is supervised by John, provides commercial and industrial construction of plumbing, heating and cooling. In 1998, John filed a petition for the dissolution of the corporation. Paul filed an answer and counterclaim. A notice of dismissal was filed by Paul with regard to three of the counts in the counterclaim and an order was entered by the trial court dismissing those claims without prejudice. Count IV of Paul's counterclaim remained. In Count IV, Paul sought specific performance of a settlement between the parties, which was agreed to after a meeting conducted by a third party on March 3, 1998.

Both parties filed motions for summary judgment as to Count IV, and the trial court issued an entry of partial summary judgment and order. The trial court found that the parties had made a valid and enforceable agreement entitling Paul to a partial summary judgment on Count IV of his counterclaim, requesting specific performance of the parties' agreement. The trial court also ordered, among other things that: 1) further court review would be necessary to divide the "shared equipment" listed on "Exhibit A," as it had not actually been divided, and to finalize the division of accounts payable and receivable agreed to by the parties; 2) the parties were to make an agreement to divide the "shared equipment" as identified on "Exhibit A"; 3) the parties were to appear before the court for a hearing to allocate the remaining equipment or assets not provided for by the trial court or "Exhibit A"; and 4) John was granted judgment on the claims contained in Paul's petition and the claims were dismissed with prejudice.

In January of 1999, a hearing was held on John's motion for new trial to clarify or amend its entry of partial summary judgment and order. The trial court denied John's motion for a new trial, but decided to amend the entry of partial summary judgment and order. Pertinent here, the trial court determined:

To the extent a division of all equipment inventory is not included thereon, each party is hereby awarded that inventory which it solely uses, free and clear of all claims, demands or interest of the other division. Any inventory purchased for use on a specific project or job shall be identified and remain with that division. All remaining inventory not otherwise designated or identified shall be divided equally between Plaintiff and Defendant.

In March of 1999, a hearing was held on Paul's motion to amend the partial summary judgment and order. The trial court subsequently issued an order to amend the judgment, ordering the parties to meet at their earliest convenience to divide any shared equipment, inventory or supplies, and, if the parties could not agree, they were to submit a sealed bid for those shared assets.

The trial court issued an order on August 5, 1999, listing property to be set over to the construction (John) or service division (Paul) that had been listed as "shared property" in "Exhibit A." On September 2, 1999, the trial court appointed a Master, pursuant to Rule 68.01, to implement the August 5, 1999 order, and to aid the parties in reaching a finalized order. The Master held an evidentiary hearing on December 2, 1999, to determine each party's rights to the disputed inventory. The Master filed his report on April 12, 2000. On July 12, 2000, the trial court filed its judgment and on September 25, 2000, filed its amended judgment, substantially adopting the Master's report. Paul appeals.

This appeal concerns issues arising from the division of Anthony Inc.'s inventory and issues arising from the possession of a backhoe, trailer, and truck. The following language from the judgment describes the tone of this case:

The parties themselves were in the best position to make determinations of fairness and equity with respect to remaining inventory and equipment issues. However, the parties have consistently been unable to resolve their differences on almost any issue. Therefore, the Court and Master have attempted to make these determinations with respect to highly technical and specialized inventory and equipment consistent with the goals of being fair to both sides and effectuating their previous agreement. It is important to note that the Court and Master's jobs have been made much more difficult by the parties' conflicting accounts, charges of malfeasance and criminal conduct, mistrust, vituperation and absolute refusal to abide by procedures, agreements and orders previously entered into by the parties in front of the Court and the Master. Both parties are responsible to some degree for this atmosphere. (emphasis added).

Standard of Review

On appeal from the decision of a trial court which appointed a Master pursuant to Rule 68.03, this court reviews the decision of the trial court, not the findings and recommendations of the master. M.F.M. v. J.O.M., 889 S.W.2d 944, 957 (Mo.App.1995). The standard of review of a court-tried case is enunciated in Murphy v.. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).¹ Rasse v. City of Marshall, 18 S.W.3d 486, 489 (Mo.App.2000). The trial court's judgment will be sustained by the appellate court unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law. Id. This court accepts the evidence and inferences most favorable to the trial court's decree and disregards all contrary evidence. Smith v. Smith, 985 S.W.2d 836, 840 (Mo.App.1998).

I.

Paul's first argument on appeal contains two sub-points. This court will not review sub-point A due to its disregard of the requirements of Rule 84.04(d). Rule 84.04(d) requires that each point relied on: (1) identify the trial court's ruling or action that the appellant is challenging on appeal; (2) state the legal reasons for the appellant's claim of reversible error; and (3) explain in summary fashion why, in the context of the case, those legal reasons support the claim of reversible error. Wilson v. Carnahan, 25 S.W.3d 664, 666 (Mo.App.2000). Although Paul identified the trial court's ruling that he is challenging on appeal, he did not state the legal reasons for his claim and in turn, did not explain why his legal reasons support his claim of reversible error. "`Insufficient points relied on preserve nothing for this court to review.'" Id. at 667 (quoting Hall v. Missouri Bd. of Probation and Parole, 10 S.W.3d 540, 544 (Mo.App.1999)). Because sub-point A of Paul's first point relied on preserves nothing for appellate review, this court declines to address it. Id. at 667. Sub-point B of Paul's first point relied on is difficult to discern; however, this court will review it.

Paul argues that some of the trial court's findings in its June 27, 2000 judgment,² referring to the division of inventory, were in contravention of the trial court's December 10, 1998, "Entry of Partial Summary Judgment and Order." Paul contends that because the order was final and it was never appealed from by John, it became the law of the case. Paul further argues that the trial court's finding, that his request for an $80,000 credit was not supported by the evidence, was against the weight of the evidence.

Paul claims that because Exhibit A was incorporated into the partial summary judgment and order, the values and amounts listed for inventory and equipment were binding on the court and the parties for further proceedings. As indicated supra, Exhibit A did not address the inventory shared by the service and construction divisions, and the division of such inventory has been a main issue of contention since the issuance of the partial summary judgment and order.

It must first be noted that the December 10, 1998, "Entry of Partial Summary Judgment and Order" was not final and, therefore, not appealable. This court only has...