Sangamon Asso., Ltd. v. Carpenter 1985, WD 61177.

• Decision Date: 29 July 2003
• Docket Number: No. WD 61177.,WD 61177.
• Citation: 112 S.W.3d 112
• Parties: SANGAMON ASSOCIATES, LTD., Dale E. Fredericks, Appellants, v. The CARPENTER 1985 FAMILY PARTNERSHIP, LTD.; Carpenter-Vulquartz Redevelopment Corp., Golden Gate Building Company; Dupage Properties, Inc.; St. Francis Associates, L.P.; Fleishhacker Properties; Mortimer Fleishhacker; Theodore D. Carpenter; The Carpenter, 427 West 12th Family Partnership, Ltd., Broadway-Washington Associates, Respondents.
• Court: Missouri Court of Appeals

112 S.W.3d 112

SANGAMON ASSOCIATES, LTD., Dale E. Fredericks, Appellants, v. The CARPENTER 1985 FAMILY PARTNERSHIP, LTD.; Carpenter-Vulquartz Redevelopment Corp., Golden Gate Building Company; Dupage Properties, Inc.; St. Francis Associates, L.P.; Fleishhacker Properties; Mortimer Fleishhacker; Theodore D. Carpenter; The Carpenter, 427 West 12th Family Partnership, Ltd., Broadway-Washington Associates, Respondents.

No. WD 61177.

Missouri Court of Appeals, Western District.

July 29, 2003.

Frederick H. Riesmeyer, II, Kansas City, for appellant.

Rhonda E. Smiley, Kansas City, for respondents.

Before ELLIS, C.J., LOWENSTEIN and ULRICH, JJ.

HAROLD L. LOWENSTEIN, Judge

Sangamon Associates, Ltd. and Dale Fredericks appeal from the trial court's judgment in favor of the defendants¹ on the claims raised in appellants' twenty-two count petition alleging a longstanding partnership dispute concerning the ownership of a piece of property and allegations of various torts relating to ownership and attempted sale of the property and on the court's granting of defendants' counter-claim for partition of the property.² Appellants allege error with respect to all but nine of the counts contained in their petition as well as the partition of property relating to the counterclaim. This appeal is dismissed for lack of final judgment.

Factual and Procedural History

The events surrounding this case are rather complex and span several decades. In review of the lack of finality, only a brief recitation of facts will be given to provide a background of what has occurred. Generally, this case involves partnership disputes arising out of ownership and operation of certain real estate in Kansas City. The principal individuals involved are respondent Allan Carpenter³ and appellant Dale Fredericks.

In 1985, Carpenter and his family identified property located in downtown Kansas City near the Bartle Hall Convention Center that they wanted to acquire and develop. This area is knows as Block 105. Carpenter acquired several individual parcels located on Block 105, including at least three tracts of land: (1) the "North Broadway Property" located at 1200-1208 Broadway, (2) the "Mid-Broadway Property" located at 1210-1216 Broadway, and (3) the property located at 427 W. 12th Street. This dispute concerns the first two properties, which are and have been operated as a surface parking lot.

Later that year, Carpenter met Fredericks and they entered into several partnerships that would own and manage the property for development purposes. Fredericks created Sangamon Associates, Ltd. ("Sangamon"), a family partnership. Carpenter also created a family partnership, The Carpenter 1985 Family Partnership, Ltd. ("Carpenter 1985"). Carpenter 1985, Sangamon, and Edgar Carpenter, Allan Carpenter's brother, then formed Broadway-Washington Associates, Ltd. ("BWA") to own and manage the property. Carpenter 1985 was the managing partner of BWA and owned sixty-five percent. Sangamon was the President and Reserve Manager, owning twenty-five percent, and Edgar owned fifteen percent.

Carpenter-Vulquartz ("C-V"), a Missouri Redevelopment Corporation and an entity owned by the Carpenter family, was named Manager of Projects under the BWA partnership agreement.

Following the initial acquisition of the properties located in Block 105, several transfers and purchases were completed. By 1991, the North Broadway Property was owned ninety percent by Carpenter, through a company called Golden Gateway Building Co. ("Golden Gateway"), which was a California limited partnership (since dissolved), and ten percent by Fredericks, through an Individual Retirement Account, as tenants in common. The general partners of Golden Gateway were:

1. DuPage Properties, Inc. ("Du-Page")—a dissolved Nevada corporation (Carpenter may have been the last-named director, president, secretary, and treasurer)

2. St. Francis Associates, L.P., ("St.Francis")—a California limited partnership

3. Fleishhacker Properties—a California general partnership

Mortimer Fleishhacker was the general partner of Fleishhacker Properties. The Mid-Broadway Property was owned by BWA.

By 1994, Fredericks and Carpenter began experiencing difficulties relating to their partnership. One of those difficulties, a major one, involved an offer by Merrill Surls to purchase the Block 105 properties. After negotiations, Surls decided not to pursue the purchase of the property. Carpenter, who had done most of the negotiations but with initial input by Fredericks, blamed Fredericks for the failed transaction and later sued Fredericks for $10 million in a California court. The general dispute between the parties related to the allocation of the potential proceeds of the sale. Fredericks alleges that Carpenter then made defamatory remarks about him, claiming that he had "killed the sale" because he did not abide by an allocation agreement. This information, Fredericks claimed, was relayed to John Carpenter, Carpenter's son, who then relayed to his wife, Angela, who was staff counsel at Lockheed Missiles & Space Co., a major client of Frederick's law firm. Fredericks claims that as a result of these remarks, he was forced to leave the firm. The California court entered summary judgment in favor of Fredericks in that case.

Subsequently, Fredericks and Sangamon⁴ filed this action against the other eleven parties discussed above, including counts for breach of fiduciary duty (3 counts), breach of contract, conversion (2 counts), constructive trust (2 counts), civil conspiracy, defamation, tortuous interference with business relations, and also requesting a partnership accounting (3 counts), an injunction for production of books and records (2 counts), appointment of a receiver (3 counts), removal of managing general partner and Manager of Projects (2 counts), and removal of managing joint venture partner and manager. Carpenter filed a counterclaim requesting partition of the North Broadway Property. As Count II of the counterclaim, Carpenter, Carpenter 1985, Carpenter on behalf of The Marital Community of Allan R. Carpenter and Theodora Carpenter ("CMC"), and BWA requested a winding up of the BWA partnership.

A jury trial, on certain claims triable by jury, began in this case on August 1997. On September 2, 1997, at the close of plaintiffs' evidence, the trial court directed a verdict in favor of the defendants on the civil conspiracy, defamation, and tortuous interference claims. Trial on the remaining matters resumed in the summer of 1998 continuing through the spring of 1999. On January 14, 2000, the trial court entered an interlocutory judgment concerning Appellants' twenty-two count petition.

During 1999, the trial court also heard evidence concerning the Carpenter counterclaim for partition and entered an interlocutory order of partition and an order of sale. A public judicial sale of the North Broadway Property was conducted on June 17, 1999, and Carpenter was the highest bidder. Following the sale, Fredericks filed a motion to have the sale set aside. After hearing evidence on this motion, the trial court set aside the sale, finding that the price, $100,000, was grossly inadequate. Several years later, and after some settlement negotiations, Carpenter filed supplemental suggestions in support of final order of partition, in which he offered to unilaterally increase the original bid to $32.00 per square foot or a total of $1,051,916.80. On January 11, 2002, the trial court entered a final judgment of partition in which he set aside the prior order setting aside the sale, and confirmed the 1999 sale with an increase in the purchase price, reflecting Carpenter's offer to increase the bid. At that time, the trial court also entered final judgment on Frederick and Sangamon's twenty-two count petition. This appeal follows.

Jurisdiction

Before this court turns to the merits of the appeal, it must first determine whether jurisdiction is proper. Lumbermens Mut. Cas. v. Thornton, 36 S.W.3d 398, (Mo.App. 2000). While neither party originally raised the issue of jurisdiction, this court must do so sua sponte. Id. A judgment is final, and thus appealable, if it "`resolves all issues in a case, leaving nothing for future determination.' " Id. (quoting Gibson v. Brewer, 952 S.W.2d 239, 244 (Mo. banc 1997)). If there is no final judgment, this court has no jurisdiction to entertain the appeal, and the appeal must be dismissed. Id.

The question of finality concerns the effective disposition of Count II of the defendant Carpenter's counterclaim. During the April 15, 1999 hearing in this case and after evidence had been heard, the trial court overruled the defendants' motion to reconsider their previous motion to amend the counterclaim. In response to that ruling, counsel for the defendants stated the following:

With the ruling that you have issued today of denying the motion to reconsider our motion for leave to amend, to add those other claims, I think that the partnership and [Carpenter 1985] are prepared to dismiss the winding up count as your Honor indicated would be okay the last time we were together and as [counsel for plaintiffs] approved last time we were together. So I don't believe there would be any other matters to consider.

Later in hearing, the following discussion occurred on the winding up of the partnership account:

[PLAINTIFFS' COUNSEL]: So you have on the record dismissed your count for winding up of Broadway Washington?

[DEFENDANTS' COUNSEL]: For supervision of the winding up.

[PLAINTIFFS' COUNSEL]: Obviously, we still have to wind up the partnership, and we still need to deal with the claims that have been submitted and as we all recognize, the partnership had authority to do that under the statute and under the partnership agreement. It was only asking for supervision because we thought it might be helpful, but it hasn't proved that way. So the partnership will be wound up and the claims will be...