Residential & Resort Associates v. Wolfe

• Decision Date: 06 January 2009
• Docket Number: No. WD 69064.,WD 69064.
• Citation: 274 S.W.3d 566
• Court: Missouri Court of Appeals
• Parties: RESIDENTIAL & RESORT ASSOCIATES, INC., Respondent, v. William WOLFE & Chevron/Sierra Land Co., LLC, Appellant.

274 S.W.3d 566

RESIDENTIAL & RESORT ASSOCIATES, INC., Respondent, v. William WOLFE & Chevron/Sierra Land Co., LLC, Appellant.

No. WD 69064.

Missouri Court of Appeals, Western District.

January 6, 2009.

James W. Gallagher III, Jefferson City, MO, for appellant.

Jerry Dean Rank, Overland Park, KS, for respondent.

RONALD R. HOLLIGER, Judge.

This appeal arises from the grant of a motion to enforce settlement agreement. Wolfe and Chevron/Sierra Land Co., LLC, raise two points on appeal. Based on their first point, we find that the trial court lacked jurisdiction to consider the motion because the motion sought affirmative relief (a monetary judgment) which was not raised in Residential & Resort Associates, Inc.'s pleadings. Thus, the trial court's judgment is void. We vacate the judgment as a nullity, and since all properly plead claims have been dismissed, there is nothing for the trial court to consider and the entire action should be considered dismissed without prejudice.

Facts and Procedural Background

Residential & Resort Associates, Inc., (R&R) sued for commissions due under a contract with William M. Wolfe and Chevron/Sierra Land Co., LLC, (Wolfe). Under the terms of the contract, R&R developed and sold real estate owned by Wolfe in Missouri, and would receive a commission of thirty percent from the sale of each parcel of real estate. R&R did not have a real estate license in the State of Missouri at the time they completed any of their work for Wolfe.

R&R sought to hypothecate¹ existing contracts for deed to a lender in order to accelerate cash flow from those contracts. The parties had done this twice, but when R&R requested a third hypothecation, Wolfe refused and the matter went to arbitration under the terms of the contract. During the arbitration proceedings, Wolfe exercised its contractual right to terminate the contract. The arbitration proceedings were dismissed, and Wolfe and R&R entered into a settlement agreement, which continued payment of commissions for properties which R&R was receiving at the time of the termination.

Later, another dispute arose over whether certain real estate contracts should be considered "active" contracts for which R&R was entitled to thirty percent. R&R filed a petition over this dispute. R&R filed several amended petitions culminating in its third amended petition. Wolfe continued to pay R&R thirty percent on the undisputed contracts, until sometime after the lawsuit was filed, when Wolfe claims to have first learned that R&R was not a licensed Missouri real estate agent. Wolfe filed a counterclaim, alleging that R&R had fraudulently procured the contract because R&R did not have a Missouri real estate license. In response, R&R voluntarily dismissed their third amended petition and filed a case in the United States District Court for the Western District of Missouri, which dismissed the case due to Morgan County's jurisdiction over the counterclaim. At this point, the only claim pending was Wolfe's counterclaim. Two months later, R&R requested leave to file a reply to the counterclaim and filed a reply to Wolfe's counterclaim. The reply contained affirmative defenses but made no claim for affirmative relief for alleged breach of any settlement agreement. R&R sought leave to file a fourth amended petition. The record contains no response to this motion, but it is clear that no fourth amended petition was filed. One year later, R&R filed a motion to enforce the settlement agreement. R&R subsequently requested a trial setting, and a few months later filed an amended motion to enforce settlement agreement.

In its amended motion, R&R argued that the settlement agreement was a complete and full settlement of all contract disputes. R&R argued that Wolfe had violated the terms of the settlement agreement and included a prayer requesting affirmative relief in the form of a full and complete accounting, and payment of thirty percent "of all gross proceeds received from all contracts in which [R&R] has an interest as required under the Agreement." Wolfe challenged the motion arguing that the court did not have jurisdiction to consider the motion because only the counterclaim remained in issue, and the settlement had no relation to the counterclaim for fraud.

The trial court held an evidentiary hearing on the motion and entered a purported interlocutory judgment enforcing the settlement agreement and ordered Wolfe to make a full accounting and pay thirty percent of gross proceeds due and owing to R&R. The court reserved jurisdiction over the payments and reserved judgment on interest and other costs to be determined at a later date. Wolfe filed a motion to set aside the interlocutory judgment, which was denied.

A few months later, Wolfe dismissed its counterclaim without prejudice and filed an objection to all court proceedings from the point at which R&R dismissed its third amended petition. Wolfe argued in each of its filings with the court after the motion to enforce settlement agreement that the court did not have jurisdiction to consider the motion because of the voluntary dismissal of R&R's petition.

Wolfe and R&R stipulated to an amount reached during the accounting although Wolfe continued to maintain that the trial court lacked jurisdiction to consider the motion or that R&R was entitled to the money. The court entered its final order enforcing settlement agreement and judgment, ordering Wolfe to pay $270,872.35, the amount stipulated by ...