Polk v. Essen

• Decision Date: 15 April 2008
• Docket Number: No. ED 89949.,ED 89949.
• Citation: Polk v. Essen, 249 S.W.3d 914 (Mo. App. 2008)
• Parties: Melinda POLK and Jennifer Essen, Respondents, v. Carl ESSEN, Appellant, and Charter Development Group I, L.C., Respondent.
• Court: Missouri Court of Appeals

249 S.W.3d 914

Melinda POLK and Jennifer Essen, Respondents, v. Carl ESSEN, Appellant, and Charter Development Group I, L.C., Respondent.

No. ED 89949.

Missouri Court of Appeals, Eastern District, Division Four.

April 15, 2008.

Patrick J. McCarthy, St. Louis, MO, for respondent.

Eugene E. Coon, Christopher B. Hunter, St. Louis, MO, for respondent.

OPINION

GEORGE W. DRAPER III, Judge.

Carl Essen (hereinafter, "Carl") appeals from the trial court's judgment granting Melinda Polk (hereinafter, "Melinda") and Jennifer Essen's (hereinafter, "Jennifer")¹ petition for partition of land. Carl raises two points on appeal challenging the propriety of the partition sale alleging several statutory irregularities occurred. Melinda Jennifer, and Charter Development Group I, LC (hereinafter, "Charter") filed motions to dismiss Carl's appeal, arguing in their brief that this appeal should be dismissed for lack of jurisdiction. We dismiss the appeal as premature.

The facts are undisputed. Carl, Melinda, and Jennifer are siblings who each hold an undivided one-third interest, as tenants in common, in property conveyed to them upon their father's death. On October 28, 2004, Melinda and Jennifer filed a petition for partition in St. Louis County. Subsequently, on May 27, 2005, Melinda and Jennifer entered into a contract to sell their two-thirds interest in the property to Charter. The contract with Charter contained an addendum which stated Melinda and Jennifer would assign their right, title, and interest in the partition action to Charter and closing would occur no later than seven days prior to the date of the partition sale as ordered by the trial court. Melinda and Jennifer voluntarily dismissed their partition action on September 21, 2005, but refiled the action the next day.

On June 16, 2006, the trial court entered its judgment finding the property could not be divided in kind, each sibling owned an undivided one-third interest in the property, and Melinda and Jennifer were entitled to partition their interest in the property by sale. Further, the trial court found "by stipulation and consent of the parties that the appointment of a Commissioner would be the most economically viable way to sell the property pursuant to the partition." The trial court appointed a commissioner, Robert E. Jones (hereinafter, "the Commissioner"), and ordered the land be sold. The trial court specifically stated it "reserve[d] jurisdiction of the division of the sale proceeds after payment of expenses of sale. The parties reserve all defenses and claims they may have to the division of the proceeds."

On October 6, 2006, the Commissioner filed a report and a contract for the sale of Carl's one-third interest in the property to Charter in the amount of $420,000. The Commissioner noted Melinda and Jennifer were also selling their interests to Charter per the previously executed sales contract. On October 17, 2006, the trial court entered a judgment confirming the Commissioner's report, ordering the proceeds from Carl's interest be placed into the trial court's registry, and directing Carl to deliver possession of the property.

On October 30, 2006, the Commissioner closed its sale of Carl's one-third interest in the property to Charter. After paying Carl's creditors who held judgment liens against his property interest, the balance of the sale proceeds were deposited into the trial court's registry. The same day, Melinda and Jennifer closed the sale of their two-thirds interest in the property per the previously executed sales contract with Charter. As a result, Charter held all right, title, and interest to the property. Further, pursuant to the addendum and an earlier trial court order, Charter would be substituted as a party plaintiff for Melinda and Jennifer in the underlying partition action.

Carl sought and received a continuance from the hearing that was to disburse the proceeds of the sale. The trial court stated all monies paid into the court would not be distributed until Carl vacated the property and the hearing was held. During this time, Carl and Charter both filed motions to amend the trial court's October 17th judgment. On November 27, 2006, the trial court amended its October 17th judgment stating that pursuant to Rule 74.01(b), "there is no just reason for delay, and [the judgment] is, therefore, final for purposes of appeal." Carl filed a notice of appeal with this Court on December 7, 2006; however, that appeal was dismissed for failure to file Rule 300 supplements. Carl also requested and received a portion of the proceeds in the amount of $112,321.79, from the trial court's registry on December 4, 2006. A balance of $100,000 remains in the trial court's registry.

On May 21, 2007, the trial court entered a judgment finding Carl in contempt because he stayed on the property in violation of its order and requiring Charter to forcibly remove Carl and his personal property from the premises. The trial court stated the contempt could be purged upon payment of $2,500. Carl filed a notice of appeal on June 29, 2007, which appears to appeal from the November 27, 2006 judgment in that it does not state the contempt judgment as an issue to be addressed.

Melinda, Jennifer, and Charter filed a motion to dismiss Carl's appeal with this Court on July 12, 2007. This Court's honorable chief judge, in her order dated August 28, 2007, framed and analyzed the issues as follows:

[Melinda, Jennifer, and Charter] assert that [Carl's] appeal should be dismissed for two reasons. First, he cannot appeal from the contempt judgment, because no effort has been made to enforce that judgment, and thus, it is not final and appealable. Second, they assert that any appeal from the November 27, 2006 judgment is untimely. In response, [Carl] fails to address the first issue and seems to concede that the contempt judgment is not appealable. However, he asserts that the October 17, 2006 and November 27, 2006 judgments are not final, because there has been no final distribution of all [of] the proceeds. In essence, he asserts the [trial] court has never entered an order dividing any of the proceeds to [Melinda and Jennifer]. (It appears they have independently sold their 2/3 interest to Charter.) Because the [c]ourt has not entered an order of final distribution, his appeal is actually premature. He further asserts that the [Rule] 74.01(b) certification is improper and does not affect the issue of finality.

Clearly, the contempt judgment of May 21, 2007 is not appealable. Generally, a civil contempt order is not final until it is enforced. Marriage of Crow and Gilmore, 103 S.W.3d 778, 781 (Mo. banc 2003). Here, there is nothing to indicate the order has been enforced and thus, it is not final. [Carl] may not raise any issues concerning the contempt order in his appeal.

The question of whether there is a final, appealable judgment in the underlying partition action or whether the notice of appeal is timely is taken with the case. Accordingly, the motion to dismiss is taken with the case. The parties may address the issue further in the jurisdictional portion of their briefs.

On December 21, 2007, Charter filed a motion to dismiss Melinda and Jennifer as parties to the appeal in light of the addendum to the sales contract and the trial court's order that Charter would be substituted as the party plaintiff upon the conveyance of the property. This motion was also taken with the case.

Both parties agree this Court cannot review the merits of the underlying partition action. In Charter's motion to dismiss the appeal and in its brief, Charter argues, inter alia, the Rule 74.01(b) certification rendered the November 27, 2006 judgment final for purposes of appeal. However, since Carl filed a notice of appeal with respect to that judgment which was ultimately dismissed, Charter argues the second notice of appeal filed on June 29, 2007, purportedly seeking to appeal from that prior judgment, is now time barred.

Carl disagrees, responding that the trial court has entered several interlocutory rulings, none of which constitute a final judgment. While Carl recognizes the trial court certified the November 27, 2006 judgment final for purposes of appeal pursuant to Rule 74.01(b), Carl believes certification was improper. Carl states he filed the December 7, 2006 notice of appeal in an abundance of caution, believing the notice was premature, yet would be considered filed immediately when the judgment did in fact become final. Finally, Carl argues the trial court cannot render a final judgment because it cannot divide and distribute the proceeds among all of the parties and enter a final order of distribution, which he believes is crucial to obtaining a final judgment in this case. Therefore, Carl requests we deny Charter's motion, find the notices of appeal were filed prematurely, and remand the case for further proceedings so that the trial court can enter a final judgment.

Rule 81.01 states the right of appeal shall be as provided by law. The right of appeal is purely statutory. Albright v. Kelley, 926 S.W.2d 207, 209 (Mo. App. S.D.1996). Without statutory authority, no right to appeal exists. Houpt v. Houpt, 174 S.W.3d 92, 96 (Mo.App. S.D. 2005). Section 512.020 RSMo (2000)² provides two possible bases for this Court to exercise appellate jurisdiction in a partition case. Id.

First, ...