Duncan v. Duncan

• Decision Date: 29 April 1988
• Docket Number: No. 15334,15334
• Citation: 751 S.W.2d 763
• Parties: Grace DUNCAN, Plaintiff-Appellant, v. Lorene DUNCAN, Defendant-Respondent, Charles Duncan and Mary Duncan, his wife, Defendants-Appellants, Duncan Brothers, Inc., Intervenor-Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 763

751 S.W.2d 763

Grace DUNCAN, Plaintiff-Appellant, v. Lorene DUNCAN, Defendant-Respondent, Charles Duncan and Mary Duncan, his wife, Defendants-Appellants, Duncan Brothers, Inc., Intervenor-Defendant-Appellant.

No. 15334.

Missouri Court of Appeals,

Southern District,

Division Two.

April 29, 1988.

Motion for Rehearing or to Transfer

Denied May 16, 1988.

Application to Transfer Denied June 14, 1988.

L. Dwayne Hackworth, Hackworth and Schuller, Piedmont, for plaintiff-appellant.

J.B. Schnapp, Robin E. Fulton, Schnapp, Graham, Reid & Fulton, Fredericktown, for defendant-respondent.

FLANIGAN, Judge.

"Oh, what a tangled web we weave ..."

Appellants Grace Duncan, Mary Duncan, Charles Duncan (Mary's husband), and Duncan Brothers, Inc., a Missouri corporation (hereinafter, "the corporation"), appeal from a judgment of the Circuit Court of Wayne County entered July 28, 1987 (hereinafter, "the second judgment"). The only other party to this appeal is respondent Lorene Duncan.

The same parties were before this court in an earlier chapter of this continuing controversy, Duncan v. Rayfield, 698 S.W.2d 876 (Mo.App.1985). In that proceeding, however, Lorene was the sole appellant and the instant appellants were respondents. At all stages of the proceedings, both in the trial court and in this court, Grace Duncan, Mary Duncan, Charles Duncan, and the corporation have been represented by the same lawyer, L. Dwayne Hackworth. The four appellants have joined in the same brief on this appeal.

The factual background to the controversy is set forth in the prior opinion of this court, and this opinion should be viewed in light of that background. That being so, a more general statement of the facts may be given here than would otherwise be necessary.

The instant appeal deals with a tract of land of approximately 453 acres in Wayne County. The original opinion referred to a 460-acre tract, of which the 453 acres is a part, as Tract A. The other seven acres of the 460-acre tract were referred to as Tract B. The 453 acres in dispute consist of Tract A minus Tract B and, in the interest of brevity, will be called Tract C in this opinion. On June 15, 1984, the trial court entered a judgment ("the first judgment"), which was the basis of the original appeal to this court.

The first judgment was the culmination of an action to quiet title to Tract A. The first judgment included an adjudication of the title to Tract B concerning which there has never been a genuine dispute. In that action, Lorene Duncan claimed that she was an owner of an undivided 1/4 interest in Tract C and sought partition by sale. In the first judgment the trial court found that the corporation was the sole owner in fee simple of Tract C and that Grace Duncan, Mary Duncan, and Charles Duncan, each being an instant appellant, and Lorene Duncan, instant respondent, had no interest in or title to Tract C. The trial court denied Lorene Duncan's request for partition because, so it then found, Lorene Duncan did not own an interest in Tract C.

Lorene Duncan was the only party who appealed from the first judgment. Her appeal was successful. This court held that Lorene owned, as a tenant in common, an undivided 1/4 interest in Tract C, and that the other parties had no interest in said undivided 1/4 interest and that the trial court erred in holding otherwise. This court reversed the first judgment and remanded the cause with directions to the trial court to reinstate Lorene Duncan's pleadings seeking partition and to take appropriate action thereon.

After remand, the corporation sought leave of the trial court to amend its counterclaim and cross-claim, but the trial court denied that request. On July 28, 1987, the trial court entered the second judgment, which found that Lorene Duncan was the owner of an undivided 1/4 interest in Tract C, that the corporation was the owner of an undivided 3/4 interest in Tract C, that Lorene Duncan and the corporation were tenants in common in Tract C, and that none of the other parties, including Grace Duncan, Mary Duncan, and Charles Duncan, had any right to or interest in Tract C. The judgment further found that Tract C could not be partitioned in kind without great prejudice, and ordered it to be sold for cash, with the proceeds of the sale (after deductions for certain expenses not questioned here) to be divided between Lorene Duncan and the corporation according to their respective interests. The instant appeal followed.

Appellants' points are:

1. "The trial court erred in its judgment in partition in finding that [the corporation] owns an undivided three-fourths [ 3/4] interest in [Tract C] in that this court had previously ruled on this issue, and therefore, was the law of the case and binding on the trial court in the partition action."

2. "The trial court erred in ordering [Tract C] sold in that there was no substantial evidence that [Tract C] could not be partitioned in kind without great prejudice to the parties in interest and thus the trial court had no jurisdiction to order [Tract C] sold."

3. "The trial court erred in denying and overruling the motion for leave to file first amended cross-claim and counterclaim of [the corporation] in that after this court reversed the trial court's original judgment finding [the corporation] to be the owner of the property by resulting trust, [the corporation] was entitled to assert an equitable lien against the property for the purchase price it had paid for the property on behalf of the owners."

An examination of appellants' three points discloses that each of them pertains exclusively to matters involving Tract C. In the first judgment the trial court found, among other things, that Grace Duncan, Mary Duncan, and Charles Duncan had no interest in or title to Tract C. None of those three individuals appealed from the first judgment. Indeed the pleading of Mary Duncan and Charles Duncan denied that Mary Duncan owned an interest in Tract C and that was tantamount to pleading that Charles Duncan also owned no interest in Tract C, because any interest he might otherwise have had was a spousal interest deriving from the fact that he was Mary's husband. The pleading of Grace Duncan denied that she owned any interest in Tract C.

Appellants' brief on this appeal states: "At trial ... Mary Duncan and Grace Duncan ... testified that they did not claim any interest in the property.... Appellant [the corporation] made a claim for title under a resulting trust. Appellants Grace Duncan, Mary Duncan, and Charles Duncan acquiesced since they had never claimed any interest in the property."

During his oral argument for appellants on the instant appeal, attorney Hackworth stated, with respect to the first judgment, that Grace Duncan, Mary Duncan, and Charles Duncan "got the result they were seeking in the trial court," and that "Mary Duncan and Grace Duncan at no time claimed to own any interest in [Tract C]." He stated that Mary Duncan and Grace Duncan were content with the first judgment and for that reason did not appeal, and that the first judgment was "totally favorable" to his clients and that the position of Grace Duncan and Mary Duncan has been, consistently, that they had no interest in Tract C and that the corporation owned it.

It should also be noted that none of appellants' three points in the instant appeal makes any claim that Grace Duncan Mary Duncan, or Charles Duncan has any interest in Tract C. "The questions for decision on appeal are those stated in the points relied on, and a question not there presented will be considered abandoned on appeal and no longer an issue in the case." Pruellage v. De Seaton Corporation, 380 S.W.2d 403, 405 (Mo.1964). To similar effect see Conway v. Judd, 723 S.W.2d 905, 906 (Mo.App.1987); Smith v. Welch, 611 S.W.2d 398, 399 (Mo.App.1981).

The foregoing makes it clear that Grace Duncan, Mary Duncan, and Charles Duncan have no interest in this appeal and no standing to prosecute it. The first judgment found that they had no interest, and they did not appeal from it. Each of them has repeatedly disavowed any interest in Tract C, and they continue to do so.

"A party not aggrieved by a judgment has no right of appeal. ... A party is not 'aggrieved' by a judgment unless the judgment directly affects some pecuniary or property right or interest which he possesses." Davis v. Allen, 740 S.W.2d 699, 700 (Mo.App.1987). (Citing authorities.)

In Rohlf v. Hayes, 287 Mo. 340, 229 S.W. 747 (1921), plaintiff filed an action against two defendants to quiet title to certain real estate. The trial court entered judgment for plaintiff, and defendants appealed, seeking to challenge the sufficiency of the evidence to show fee simple title in plaintiff. At p. 747 the court said:

"In this case defendants did not default, nor did they consent to a judgment for plaintiff as per his petition. They answered, but only by the general denial set out in the statement. By this general denial they denied that they claimed any title or interest in the premises. With this denial of record, they passed out of the case below, and here, as parties having an interest in the subject-matter of the litigation. When they denied, as they did, that they claimed either title or interest in the property, it is hard to conceive their further interest in the case nisi, or here." (Emphasis added.)

"[O]rdinarily a judgment or decree which affects or determines rights in particular property does not aggrieve a party who has, or claims, no interest or title to the property." Campbell Street Lumber Co. v. Central Mortgage Co., 436 S.W.2d 57, 60 (Mo.App.1968). See also Southern Reynolds County School Dist. R-2 v. Callahan, 313 S.W.2d 35, 39 (Mo.1958); Feeler v. Reorganized School District No. 4, 290 S.W.2d 102, 104 (Mo.1956).

This court holds that the appeal of Grace Duncan, Mary Duncan, and Charles Duncan is frivolous and that respondent's motion for damages for frivolous...