Darrington v. George

• Decision Date: 29 December 1998
• Docket Number: No. WD,WD
• Citation: 982 S.W.2d 823
• Parties: Robert BRUCE and Mary Katherine Darrington, Respondents, v. James GEORGE and Melissa Claire Stulz, Appellants. Citizens Bank And Trust Co., Respondents. 55561.
• Court: Missouri Court of Appeals

Page 823

982 S.W.2d 823

Robert BRUCE and Mary Katherine Darrington, Respondents, v. James GEORGE and Melissa Claire Stulz, Appellants.

Citizens Bank And Trust Co., Respondents.

No. WD 55561.

Missouri Court of Appeals,

Western District.

Dec. 29, 1998.

Linda S. Tarpley, Kansas City, for appellant.

Kranitz & Kranitz, P.C., St. Joseph, Dana J. Macoubrie, Chillicothe, for respondent.

Before ROBERT G. ULRICH, P.J., JAMES M. SMART, J. and LAURA DENVIR STITH, J.

ULRICH, Presiding Judge.

James and Melissa Stulz appeal the final judgment in partition of the trial court approving the sale of real estate owned by them and Robert and Mary Darrington as tenants in common and distributing the sale proceeds. They claim that the court lacked authority to enter the judgment because the property was sold at a private sale under a real estate contract rather than at a public auction as required under Rule 96 and Chapter 528, RSMo 1994. The judgment of the trial court is reversed, and the case is remanded for further proceedings.

On March 21, 1996, the Darringtons filed their petition for partition of land against the Stulzes and Citizen's Bank and Trust. The petition alleged that the Darringtons and the Stulzes each owned an undivided one-half interest in the property as tenants in common with the Stulzes' interest subject to a lien of Citizen's Bank and Trust. The petition requested a fair partition of the land or that the land be sold and the proceeds divided among the parties.

The trial court entered a judgment in partition on September 9, 1997. The court found that the Darringtons and the Stulzes each owned an undivided one-half interest in the property with the Stulzes' interest subject to lien secured by a deed of trust and recorded by Citizen's Bank and Trust. The court further found that the real estate was not subject to partition in kind and ordered it sold by the sheriff of Worth County on October 24, 1997, and the proceeds, after payment of costs and fees, distributed to the parties according to their respective interests.

On October 3, 1997, the Darringtons filed a motion to set aside the sale claiming that since the entry of the trial court's judgment in partition, the Darringtons had received an offer from a third party to purchase the property for $310,000. Attached to the motion was a contract for the sale of farm land dated September 27, 1997, identifying the Darringtons and Citizen's Bank and Trust as the sellers, Dee Lynch as the buyer, and Mr. Darrington as the real estate agent. A hearing was held on the Darringtons' motion on October 20, 1997. On October 24, 1997, the trial court entered an order cancelling the public sale of the property, approving the real estate contract between the Darringtons and Mr. Lynch, and accepting and depositing in the court registry an earnest money check from Mr. Lynch in the amount of $25,000. On January 9, 1998, a check signed by Mr. Lynch and made payable to Hall Realty ¹ in the amount of $285,000 was filed with the court.

On February 6, 1998, the trial court entered its final judgment ordering the property "voluntarily" sold to Mr. Lynch for the sum of $310,000 and conveyed by sheriff's deed noting that consent to the sale "had been affirmatively manifested by each party in open court." It further ordered the clerk of the court to distribute the proceeds of the sale after payment of an 8% sales commission to Hall Realty, attorneys fees, sheriff's fees, and court costs and taxes. This appeal by the Stulzes followed.

On appeal, the Stulzes claim that the trial court erred in entering its final judgment. They contend that the court lacked authority to approve the private sale, distribute the proceeds of the sale, and award a sales commission, attorneys fees, and sheriff's fees because the property was sold at a private sale under a real estate contract rather than at a public auction as required under Rule 96 and Chapter 528, RSMo 1994.

The Darringtons initially question the Stulzes' standing to appeal this matter. They claim that the Stulzes no longer have any interest in the issue because they filed for bankruptcy in April 1997 and their debts were discharged. The Darringtons contend "In no way can Stulz have any pecuniary interest in the cause of action, simply because his maximum share of the proceeds of sale applied to the lien debts would not suffice to satisfy to them and provide any overage to Stulz."

"Standing requires that a party seeking relief have a legally cognizable interest in the subject matter and that he has a threatened or actual injury." State ex rel. Ryan v. Carnahan, 960 S.W.2d 549, 550 (Mo.App. E.D.1998) (citation omitted). In this case, the Stulzes had a legally cognizable...