State ex rel. Ashcroft v. Gibbar

• Decision Date: 27 December 1978
• Docket Number: No. 39032,39032
• Citation: 575 S.W.2d 924
• Parties: STATE of Missouri ex rel. John ASHCROFT and Missouri Clean Water Commission, Plaintiff-Respondent, v. James and Faye GIBBAR d/b/a J & H Gibbar Construction Co., Defendant Third-Party Plaintiff-Appellant, v. Perry Plaza, Inc., Harold P. and Irene Gibbar, Third-Party Defendant-Respondents. . Louis District, Division Two
• Court: Missouri Court of Appeals

Page 924

575 S.W.2d 924

STATE of Missouri ex rel. John ASHCROFT and Missouri Clean

Water Commission, Plaintiff-Respondent, v. James and Faye GIBBAR d/b/a J & H Gibbar Construction Co., Defendant Third-Party Plaintiff-Appellant, v. Perry Plaza, Inc., Harold P. and Irene Gibbar, Third-Party

Defendant-Respondents.

No. 39032.

Missouri Court of Appeals, St. Louis District, Division Two.

Dec. 27, 1978.

W. H. Frye, Cape Girardeau, for defendant third-party plaintiff-appellant.

John D. Ashcroft, Atty. Gen., Jefferson City, for plaintiff-respondent.

A. M. Spradling, Jr., Cape Girardeau, for Perry Plaza.

John P. Bradshaw, Cape Girardeau, for Harold & Irene Gibbar.

STEWART, Presiding Judge.

This is an appeal from an order of the trial court dismissing the third-party petition filed by James Gibbar and Faye Gibbar, defendants third-party plaintiffs, against Perry Plaza, Inc. and against Harold Gibbar and Irene Gibbar in the above captioned cause.

The original action was brought by the State of Missouri upon the relation of John Ashcroft, Attorney General of Missouri and Missouri Clean Water Commission (Plaintiffs) against James Gibbar and Faye Gibbar d/b/a J & H Gibbar Construction Company. Plaintiffs' petition as amended is in three counts and alleges violations of Chapter 204, The Clean Water Law, emanating from three separate tracts of land owned by defendants.

Count I of plaintiffs' petition alleges that defendants as the owners of Jamestown Estates Subdivision (Jamestown) operated a sewage system without a permit and discharged raw sewage into a sink hole beneath Perry Plaza Shopping Center and eventually into waters of the State. Counts II and III are similar but are concerned with two other residential developments owned by defendants. Plaintiffs sought injunctive relief and statutory penalties against defendants as provided in V.A.M.S. 204.076.

Defendants, who will hereafter be referred to as owners, filed a third-party petition in two counts. The first count purports to state two causes of action, the first is against Perry Plaza, Inc. (Plaza). It is alleged that if owners should be found guilty of any of the acts set forth in plaintiffs' petition, that it was because of the breach of an agreement made by Perry Plaza, Inc. and owners' predecessors in title to accept sewage into a system to be built on land owned by Perry Plaza, Inc. and that as a result of such breach Perry Plaza, Inc. as a third-party defendant is liable over to owners for all or any proportionate part of any money judgment or judgments which might be obtained by plaintiffs against owners.

Owners also alleged in Count I of their amended third party petition that Harold P. Gibbar and Irene Gibbar were owners of real property that adjoined the lands owned by owners and that they were discharging sewage under ground onto the lands of defendants third-party plaintiffs and contributing to any alleged pollution and therefore they should be liable for part or all of any judgment or judgments which might have been obtained by plaintiffs against owners.

In Count II of their amended petition owners asked for money damages against Perry Plaza, Inc. for a breach of the agreement alleged in Count I and to declare that there was an easement in favor of owners across the lands of Perry Plaza, Inc. into a sewage system on the lands of Perry Plaza, Inc. which sewage system eventually runs into the municipal system of the City of Perryville, Missouri.

Upon motions of Plaza and Harold P. Gibbar and Irene Gibbar, third-party defendants, owners' third-party petition was dismissed for failure to state a claim upon which relief could be granted.

We must first determine whether the order of the trial court is a final judgment so as to invoke the appellate jurisdiction of this court. Pizzo v. Pizzo, 295 S.W.2d 377, 379 (Mo.1956). Our determination is governed by Rule 81.06 which reads in part as follows:

". . . When a separate trial is had before the court without a jury of claims arising out of the same transactions, occurrences or subject matter as the other claims stated or joined in the case the judgment entered shall not be deemed a final judgment for purposes of appeal within the meaning of Section 512.020, Revised Statutes of Missouri, unless specifically so designated by the court in the judgment entered. However, when a separate trial is had before the court without a jury of an entirely separate and independent claim unrelated to any other claims stated or joined in the case, then the judgment entered shall be deemed a final judgment for purposes of appeal within the meaning of Section 512.020, Revised Statutes of Missouri, unless the court orders it entered as an interlocutory judgment to be held in abeyance until other claims, counterclaims or third-party claims are determined. In any case (jury or nonjury) when a separate final judgment is entered the court may stay its enforcement until other or all final judgments in the cause are entered and may prescribe such conditions as are necessary to secure and protect the relative rights of all parties; provided, however, any such stay shall not affect the right of appeal."

The dismissal of a petition or a count in a petition upon the hearing of a motion to dismiss for failure to state a claim upon which relief can be granted is a separate trial before the court without a jury within the meaning of Rule 81.06. Johnson v. Great Heritage Life Insurance Company, 490 S.W.2d 686, 689 (Mo.App.1973).

In this case the court dismissed both counts of owners' third-party petition. The hearing on the motion to dismiss was a trial before the court without a jury. The order of dismissal did not provide that the dismissal was without prejudice, therefore the third-party petition was dismissed with prejudice. V.A.M.R. Civil Rule 67.03. Johnson v. Great Heritage Life Insurance Company, supra.

The court did not specifically provide that the order dismissing owners' third-party petition be deemed a final judgment for purposes of appeal and it did not provide that it was interlocutory or that it was to be held in abeyance pending the disposition of the entire case.

We have jurisdiction only if the order comes within the purview of third sentence of Rule 81.06 which reads:

"However, when a separate trial is had before the court without a jury of an entirely separate and independent claim unrelated to any other claims stated or joined in the case, then the judgment entered shall be deemed a final judgment for purposes of appeal within the meaning of Section 512.020, Revised Statutes of Missouri, unless the court orders it entered as an interlocutory judgment to be held in abeyance until other claims, counterclaims or third-party claims are determined."

To come within the application of this portion of Rule 81.06 the matters disposed of must not be dependent in any respect upon the outcome or final disposition of any issue left undetermined in the case, the order must not provide that it be interlocutory or that it be held in abeyance until other claims are determined. Crenshaw v. Great Central Insurance Co., 527 S.W.2d 1, 3 (Mo.App.1975).

The two counts of the third-party petition are clearly severable and in applying the rule to this case we must consider each count separately to determine where the order with respect to either count is appealable.

Count I of the third-party petition seeks indemnity from Plaza and from Harold and Irene...