Skalecki v. Small, 21198
| Decision Date | 05 September 1997 |
| Docket Number | No. 21198,21198 |
| Citation | 951 S.W.2d 342 |
| Parties | K.M. SKALECKI and Thomas Dempsey, Respondents, v. Mark H. SMALL, Jr., Kathleen E. O'Sullivan, Thomas P. O'Sullivan, Sylvia M. Wiedeman and John A. Wiedeman, Appellants, v. Ronald CARPENTER, Respondent. |
| Court | Missouri Court of Appeals |
James P. Tierney, Lathrop & Gage, L.C., Kansas City, for appellants.
Lisa A. Ghan, Brad G. Bishop, Lowther, Johnson, Joyner, Lowther, Cully & Housley, L.L.C., Springfield, for respondents Skalecki and Dempsey.
Kerry D. Douglas, Douglas, Lynch, Haun & Kirksey, P.C., Bolivar, for respondent Carpenter.
This case returns to this court after a five-year intermission. This court's earlier opinion, Skalecki v. Small, 832 S.W.2d 954 (Mo.App. S.D.1992), henceforth referred to as Skalecki-I, should be read as a preface to the present opinion.
As explained infra, the present appeal must be dismissed because there is no judgment within the meaning of Rule74.01(a). 1
The dispute is about a parcel of land. Skalecki-I, 832 S.W.2d at 954-55. The record indicates the parcel's description is: "Lot # 21, INDIAN POINT, a subdivision ... in Camden County." We henceforth refer to the parcel as Lot 21.
After remand in Skalecki-I, Plaintiffs filed a First Amended Petition on October 13, 1992. It named five individuals as defendants. Three of them were the appellants in Skalecki-I. 832 S.W.2d at 954. The two new defendants are spouses of prior appellants O'Sullivan and Wiedeman, respectively.
Contrary to Plaintiffs' original petition, which pled Plaintiffs had acquired title to Lot 21 by adverse possession, 2 Plaintiffs' First Amended Petition pled Plaintiffs purchased Lot 21 "at the Camden County Collector's Delinquent Tax Sale on August 22, 1988," and received a "Collector's Deed" on August 28, 1990, which Plaintiffs recorded two days later. The First Amended Petition prayed the trial court to decree that Plaintiffs own Lot 21 in fee simple absolute, and that Defendants have no right, title or interest therein.
Defendants filed an answer to Plaintiffs' First Amended Petition. The answer denied Plaintiffs had any right, title or interest in Lot 21.
Defendants' answer was accompanied by a three-count Counterclaim. Count I, denominated an action to quiet title, averred Defendants own Lot 21 by virtue of certain warranty deeds. Count I prayed the trial court to decree that Defendants own Lot 21 in fee simple absolute, and that Plaintiffs have no right, title or interest therein.
Count II of Defendants' Counterclaim was denominated an action for fraud. It pled, inter alia, that the allegations of adverse possession in Plaintiffs' original petition were false. Count II further pled that Plaintiffs falsely represented to the trial court that Defendants could not be found for service of Plaintiffs' original petition. According to Count II, the misrepresentations identified in the two preceding sentences were relied upon by the trial court in entering the judgment which this court reversed in Skalecki-I. Count II of Defendants' Counterclaim prayed for actual damages and punitive damages.
Count III of Defendants' Counterclaim was denominated an action to set aside the collector's deed upon which Plaintiffs based their First Amended Petition. Count III pled, inter alia, that the deed was defective for sundry reasons which we need not list in this opinion.
Defendants subsequently filed a motion for summary judgment on March 28, 1994. The motion prayed the trial court to set aside the collector's deed and to quiet title to Lot 21 in Defendants.
On August 15, 1994, the trial court made and signed a docket entry sustaining Defendants' motion for summary judgment. The entry stated, in part:
The entry further provided that Defendants' lawyer should prepare for the court a "formal judgment" reflecting the above ruling.
The record contains an "Order" signed by the trial court and filed September 21, 1994. The Order is consistent with the entry of August 15, 1994; however, the Order does not identify Lot 21 as the property affected by the Order, nor does the Order quiet title in anyone.
On October 13, 1994, Defendants filed a motion for leave to file a pleading designated "Defendants' Amended Counterclaims." The latter document (which accompanied the motion) pled three new claims against Plaintiffs. Those three claims were denominated: "Count IV: Conspiracy to Defraud"; "Count V: Malicious Prosecution"; "Count VI: Abuse of Process."
Simultaneously with the motion and the pleading described in the preceding paragraph, Defendants filed a motion for leave to file a "Third Party Petition" against Ronald Carpenter. 3 The motion was accompanied by a pleading designated "Third Party Petition." It pled four claims by Plaintiffs against Carpenter. The claims were denominated: "Count I: Fraud"; "Count II: Conspiracy to Defraud"; "Count III: Malicious Prosecution"; "Count IV: Abuse of Process."
Defendants' motions of October 13, 1994 (described in the two preceding paragraphs), lay dormant for some five months. During that period, the trial court, on October 31, 1994, filed an "Order" which pertained to Defendants' motion for summary judgment of March 28, 1994 (the motion the trial court had previously sustained by docket entry August 15, 1994, and again sustained by the Order filed September 21, 1994). The Order of October 31, 1994, contained the description of Lot 21 and proclaimed: "[T]he collector's deed purporting to transfer title to Plaintiffs in [Lot 21] is set aside and declared void." Like the docket entry of August 15, 1994, and the Order of September 21, 1994, the Order of October 31, 1994, did not quiet title to Lot 21 in anyone.
We point out the failure to quiet title because, as reported earlier, Plaintiffs' First Amended Petition and Count I of Defendants' Counterclaim were actions to quiet title. In an action to quiet title, the court is required to adjudicate the respective interests of the parties to the action, regardless of who prevails. Pitts v. Pitts, 388 S.W.2d 337, 339 (Mo.1965). Such declaration should be entered although the plaintiff fails to establish his claim of title and the defendant does not request affirmatively an adjudication of title in him. Id. at . Here, of course, each side requested adjudication of title.
On February 9, 1995, Plaintiffs filed a motion for judgment on the pleadings in regard to Count II of Defendants' Counterclaim. That count, as noted earlier, was denominated an action for fraud.
On March 9, 1995, the trial court made a docket entry stating, in pertinent part:
Taking those rulings seriatim, we conclude the first ruling pertained to Defendants' motion of October 13, 1994, which sought leave to file "Defendants' Amended Counterclaims." The latter pleading contained three counts, numbered IV, V and VI. The trial court's ruling granted Defendants leave to file only Count V (denominated "Malicious Prosecution").
We conclude the trial court's second ruling March 9, 1995, pertained to Defendants' motion of October 13, 1994, which sought leave to file the "Third Party Petition" against Carpenter. That petition contained four counts, numbered I, II, III and IV. The trial court's ruling granted Defendants leave to file only Count III (denominated "Malicious Prosecution").
We conclude the trial court's third ruling March 9, 1995, pertained to Plaintiffs' motion of February 9, 1995, for judgment on the pleadings. As explained earlier, that motion pertained to Count II of Defendants' Counterclaim (denominated an action for fraud).
The docket entry of March 9, 1995, bears handwritten initials which appear to be those of the trial court.
After the rulings of March 9, 1995, it seems the parties assumed the only unresolved issues were those raised by (1) Count V of "Defendants' Amended Counterclaims," and (2) Count III of Defendants' "Third Party Petition." An alert reader will recall that each of those counts was denominated a claim for "Malicious Prosecution."
If the parties indeed embraced the notion in the preceding paragraph, they were mistaken.
The entry of March 9, 1995, does not constitute a judgment in favor of Plaintiffs on Count II of Defendants' Counterclaim. The entry states only that the court "grants motion for judgment on the pleadings filed 2/9/95." Without tracking down and examining the motion, one cannot determine the identity of the moving party or the claim on which the moving party sought judgment on the pleadings.
Provisions in a judgment should be definite; indefinite provisions are void and unenforceable. In re Marriage of Brooke, 773 S.W.2d 496, 498-99 (Mo.App. S.D.1989). The effect of the segment of the entry of March 9, 1995, granting the motion for judgment on the pleadings can be ascertained only by finding and studying the motion to which the entry refers. Only then can one deduce that the trial court intended to adjudicate Count II of Defendants' Counterclaim against them and in favor of Plaintiffs.
Furthermore, and of greater importance, the entry of March 9, 1995, is not denominated a "judgment."
Rule 74.01(a) reads:
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