Gurwit v. Kannatzer, WD

• Decision Date: 04 October 1988
• Docket Number: No. WD,WD
• Citation: Gurwit v. Kannatzer, 758 S.W.2d 486 (Mo. App. 1988)
• Parties: Monte GURWIT and Martha Gurwit, et al., Plaintiffs-Respondents, v. Jacob KANNATZER, et al., Defendants, Eugene H. Gruender and Dorothy H. Gruender, et al., Defendants-Appellants. 40242.
• Court: Missouri Court of Appeals

Page 486

758 S.W.2d 486

Monte GURWIT and Martha Gurwit, et al., Plaintiffs-Respondents, v.Jacob KANNATZER, et al., DefendantsEugene H. Gruender and Dorothy H. Gruender, et al Defendants-Appellants.

No. WD 40242.

Missouri Court of Appeals Western District.

Oct. 4, 1988.

Elton W. Fay, Columbia, for defendants-appellants.

Robert C. Smith and Gena J. Trueblood, Columbia, for plaintiffs-respondents.

Before CLARK, P.J., and LOWENSTEIN and FENNER, JJ.

CLARK, Judge.

This is a quiet title action brought by respondents Monte and Martha Gurwit to establish their ownership in four tracts of land in Section 4, Township 50, Range 13, Boone County, Missouri.Appellants Eugene H., Dorothy H., John R., and Karen Gruender were among the defendants named in the suit.The dispositive issue, requiring dismissal of the appeal, is the finality of the judgment from which the appeal is taken.

The Gurwit suit claimed ownership of tracts A and B, as there described, by adverse possession pursuant to Section 527.180, RSMo 1986.¹It also asked that title to tracts C and D be quieted in plaintiffs on the basis of record title and the bar of the ten year statute of limitations, Section 516.010.As the cause developed, no contest emerged as to the Gurwits' ownership of tracts B, C and D, and they are irrelevant to the subsequent discussion.

The Gruenders filed a pleading, upon which the issues in the case were ultimately submitted, entitled, "First Amended Answer and Cross Petition to ... Quiet Title."The components of the pleading were not separated or captioned, but the substance of the allegations indicates the defendants were denying plaintiffs' claims as to tract A and were seeking affirmative relief in quiet title themselves.Eugene and Dorothy Gruender asserted that they, and not the Gurwits, should be adjudged the owners of tract A by adverse possession.The pleading also asked that title to a fifth tract, which for convenience we will refer to as tract E, be quieted in John and Karen Gruender.

There is no indication in the record on appeal that respondents Gurwit ever had made any claim to ownership of tract E and it was not included in the legal descriptions set out in the plaintiffs' petition.All of tract A, the focus of dispute between plaintiffs and defendants Eugene and Dorothy Gruender, lies west of the Oak Grove School Road and all of tract E, claimed by John and Karen Gruender lies east of that road.Tracts A and E therefore are not contiguous.

The trial court received the evidence in the case and entered judgment quieting title to tracts A, B, C and D in the Gurwits.The opposing claim to tract A by defendants Eugene and Dorothy Gruender was denied.The judgment makes no mention of the prayer by John and Karen Gruender that title to tract E be quieted in them.Appellants, although the moving parties on appeal, assert the subject judgment is not a final judgment and hence not appealable under Section 512.020.

In the resolution of the point, it is first necessary to identify the nature of the John Gruenders' claim.If it was, as labeled, a cross-claim, it was improperly joined with the original suit because tract E was not property with which the quiet title suit of the Gurwits was concerned.A cross-claim may be filed in the action only if it arose out of or was related to the property that is the subject matter of the original action.Rule 55.32(f).This case is not a vehicle available to settle a title dispute among the defendants to property other than the lands to which the plaintiffs have made claim by their pleading.

A counterclaim, in contrast to a cross-claim, is not subject to the limitations on subject matter and may include any claim against an opposing party even though it may not arise out of the subject matter of the opposing party's claim.Rule 55.32(b).If the claim by the John Gruenders is a counterclaim, it is not subject to dismissal on the ground that tract E was not mentioned in the plaintiffs' petition.

A cross-claim differs from a counterclaim in that a cross-claim is one asserted against a co-party, that is, a party aligned on the same side in the original suit as the cross-claimant.A counterclaim is a claim against an opposing party, that is, a counter demand existing in favor of a defendant against a plaintiff.SeeCampbell v. Preston, 379 S.W.2d 557, 559(Mo.1964);State ex rel....