State ex rel. Morris v. McDonald

• Decision Date: 01 November 1991
• Docket Number: No. 17528,17528
• Parties: STATE of Missouri, ex rel. Kent D. MORRIS, Acting Greene County Zoning Inspector, Plaintiff, v. Clara McDONALD, Defendant. Lewis WILLS and Peggy Wills, Defendants and Third-Party Plaintiffs-Respondents, v. Carol JONES and Doug Garges, Third-Party Defendants-Appellants, and Sandra Lathrom, Third-Party Defendant.
• Court: Missouri Court of Appeals

Page 923

817 S.W.2d 923

STATE of Missouri, ex rel. Kent D. MORRIS, Acting Greene

County Zoning Inspector, Plaintiff, v. Clara McDONALD, Defendant.

Lewis WILLS and Peggy Wills, Defendants and Third-Party Plaintiffs-Respondents, v. Carol JONES and Doug Garges, Third-Party Defendants-Appellants, and Sandra Lathrom, Third-Party Defendant.

No. 17528.

Missouri Court of Appeals,

Southern District,

Division One.

Nov. 1, 1991.

Stephen H. Snead, Mann, Walter, Burkart, Weathers & Walter, Springfield, for appellants.

Craig R. Oliver, Rose A. Barber, Miller & Sanford, P.C., Springfield, for respondents.

PARRISH, Judge.

This is an appeal from an order by which the trial court set aside a summary judgment it had previously entered in favor of appellants. For the reasons that follow, the order setting aside the summary judgment is affirmed.

The director of the Greene County Planning and Zoning Department (relator) caused an action to be brought against Clara McDonald (seller) and Lewis Wills and Peggy Wills (purchasers). That action sought enforcement of a county zoning regulation that requires tracts of real estate in areas of Greene County that are zoned "A-1" to contain at least 4.75 acres. Relator's petition alleged that seller had sold a tract of real estate to purchasers that was located within such an area but contained less than 4.75 acres. Injunctions were sought directing seller and purchasers "to forthwith abate" violation of the applicable zoning regulations and commanding seller and purchasers to remove a mobile home.

Purchasers filed a crossclaim against seller seeking money damages for representations that seller allegedly made that she "knew or should have known ... were false or were made carelessly and recklessly" and upon which purchasers relied. The alleged misrepresentations were that the property that purchasers acquired could be used as a site for a mobile home while other housing was constructed; that a "new home" could be constructed by purchasers on the property; that the mobile home could remain after the new home was constructed "as a rental unit"; and that all such uses of the property "would be in compliance with Greene County zoning regulations."

After they had filed their crossclaim (and an amended crossclaim), purchasers filed a Motion to Add Parties and to Amend Crossclaim of Defendants Wills [purchasers] Against Defendant McDonald [seller] that requested "the court to add as party defendants ... Carol Jones d/b/a Carol Jones Realtors, Doug Garges, and Sandra Lathrom d/b/a Realty Closing Services." Thereafter, but without first obtaining leave of court, purchasers filed a pleading entitled "Crossclaim of Defendants Wills [purchasers] Against Carol Jones, Doug Garges and Sandra Lathrom," the caption of which identified Jones, Garges and Lathrom as "Third Party Defendants." Purchasers alleged, by that pleading, that the "Third Party Defendants" were agents of seller. Purchasers contended that the "Third Party Defendants" had acted "in a fiduciary and confidential relationship with Defendants Wills [purchasers]" and sought damages because the property was not zoned so that purchasers could use it in the manner they originally planned. By a separate count against Garges, purchasers sought punitive damages for representations that Garges allegedly made that he knew were false or that he made without knowing "whether said representations were true or false" and upon which purchasers relied in deciding to purchase seller's property.

"Third Party Defendants" Carol Jones and Doug Garges filed a motion in the trial court to dismiss the claim purchasers were making against them. They later filed a motion for summary judgment. Between the time the motion to dismiss was filed and the time the motion for summary judgment was filed, relator and seller settled their dispute and, in accordance with the terms of that settlement, seller was enjoined "from conveying, transferring, and encumbering any real property in a manner in violation of Greene County, Missouri planning and zoning regulations," and the original action was dismissed as to purchasers.

On March 5, 1991, after relator's action was concluded, the trial court granted a summary judgment in favor of "Third Party Defendants" Jones and Garges and against purchasers. The summary judgment recited that the attorneys for Jones and Garges and for seller had appeared, but that there were "no other parties appearing, although all other parties ha[d] been duly notified of the hearing scheduled for said Motion."

On March 14, 1991, purchasers filed a motion to set aside the summary judgment. It alleged that "the summary judgment was granted by reason of the excusable neglect of defendants Wills [purchasers]" and relied upon Rule 74.06(b) as the basis for seeking to set the summary judgment aside.

On April 8, 1991, attorneys for purchasers, attorneys for Carol Jones and Doug Garges, and an attorney for Sandra Lathrom appeared in the trial court for a hearing on purchasers' motion to set aside the summary judgment. The trial court advised the parties that the court file reflected that the persons in whose favor the summary judgment was granted, Jones and Garges, had "never been made a party in this--parties in this proceeding and have never been added so that there can be no judgment in their favor in this court." After determining that all issues in the case "between the plaintiff [relator] and defendants [seller and purchasers] were disposed of," the trial court advised those present, "That being true, then, the Court would not entertain a motion to add parties in this proceeding." The trial court announced the following action:

I am going to recess this hearing, and I announced to the parties that in fourteen days from this date, I am going to make an order in this case which sustains the motion to set aside the judgment, and I will strike the judgment.

On April 23, 1991, the trial court made the following docket entry:

Summary Judgment entered on March 4, 1991 in favor of Carol Jones and Doug Garges and against Defts Wills on the claim of Lewis Wills and Peggy Wills against Carol Jones and Doug Garges set aside in accordance with announcement made on April 8, 1991.

Appellants raise two points on appeal. They contend that the thirty-day period in which the trial court could otherwise act on the summary judgment by reason of Rule 75.01 had passed; therefore, unless the trial court acted under Rule 74.06(b), on the basis of excusable neglect, appellants contend that it had no control over the summary judgment to "vacate, reopen, correct, amend, or modify its judgment"--that the trial court's authority was limited to considering whether to set aside the summary judgment under Rule 74.06(b). By their second point appellants contend that, notwithstanding that purchasers never obtained leave of court to add appellants as parties, appellants, by filing their motion for summary judgment and otherwise participating in the suit, "waived" that defect. Appellants contend the trial court, therefore, erred by striking the summary judgment that had been granted in their favor.

Rule 75.01, to which appellants refer in their first point on appeal, states:

The trial court retains control over judgments during the thirty-day period after entry of judgment and may, after giving the parties an opportunity to be heard and for good cause, vacate, reopen, correct, amend, or modify its judgment within that time.

. . . . .

Here, the summary judgment was granted March 4, 1991. The order setting aside the summary judgment was entered April 23, 1991, more than thirty days after the summary judgment was granted. Appellants argue that Rule 74.06(b) is independent of Rules 75.01 and 81.05 with respect to determining the authority that a trial court has to set aside or otherwise change a judgment. Rule 81.05 addresses the finality of judgments for purposes of appeal. It provides:

For the purpose of ascertaining the time within which an appeal may be taken, a judgment becomes final at the expiration of thirty days after the entry of such judgment, if no timely motion for a new trial is filed.... Authorized after-trial motions shall be treated as, and as a part of, a new trial motion for the purpose of ascertaining the time within which an appeal must be taken and all such after-trial motions shall be disposed of at the same time. Any authorized after-trial motion not passed on at the time the motion for a new trial is determined shall be deemed overruled as of the same date. The filing and disposition of such motions has the same effect as to time for appeal in all cases whether or not the motion has any function other than to seek relief in the trial court.

If a motion for new trial (or other "authorized after-trial motion") is filed, Rule 78.04 provides that "the judgment is not final until disposition of all such motions." ¹ No motion for new trial was filed in this case.

Appellants contend that a motion seeking relief under Rule 74.06(b) is not "an authorized after-trial motion" as described in Rule 81.05 and, therefore, the filing of such a motion does not extend the time in which the trial court may enter an order that affects a previously entered judgment other than to determine its validity in accordance with Rule 74.06(b). This court agrees. However, that issue is not determinative of this appeal.

In order for an individual's rights or interests to be affected by a suit, he or she must be a party to that litigation. Schaeffer v. Moore, 262 S.W.2d 854, 858 (Mo.1953). A court has no jurisdiction over someone not a party to the action that is before it. See Stein v. Mercantile Home Bank & Trust Co., 347 Mo. 732, 148 S.W.2d 570, 573 (1941). The issue upon which this appeal must be decided is whether appellants were parties to the action that they now seek to appeal. If appellants were parties, their position that the trial court lacked authority to strike...