Sutton v. Goldenberg, 62982

• Citation: 862 S.W.2d 515
• Decision Date: 12 October 1993
• Docket Number: No. 62982,62982
• Parties: Emerson SUTTON, Plaintiff-Appellant, v. Jerome GOLDENBERG, Defendant-Respondent.
• Court: Court of Appeal of Missouri (US)

Page 515

862 S.W.2d 515

Emerson SUTTON, Plaintiff-Appellant, v. Jerome GOLDENBERG, Defendant-Respondent.

No. 62982.

Missouri Court of Appeals,

Eastern District,

Division Three.

Oct. 12, 1993.

Emerson Sutton, pro se.

Susman, Schermer, Rimmel & Shifrin, Cordel Siegel, Moser and Marsalek, P.C., John J. Horgan, Cheryl L. Eia, St. Louis, defendant-respondent.

PUDLOWSKI, Judge.

The issue before us, may an appeal be taken from the filing of a stipulation for dismissal with prejudice of the last two counts of an eight count petition without an order of the court? For the reasons hereinafter asserted we determine that the cause has no final judgment and we, therefore, have no jurisdiction to entertain an appeal.

We divine from the pro se appellant's brief that after Mercantile Bank foreclosed on appellant's property and sold it to respondent, appellant continued to assert that he was the rightful owner and continued collecting rents and evicting tenants. In an effort to curb appellant's actions, respondent contacted the circuit attorney's office and the police department which subsequently resulted in appellant's arrest. When appellant's then attorney advised the authorities that he and respondent were contesting the ownership of the building in bankruptcy court, all charges against appellant were dismissed and he was released from custody. Appellant then sued respondent for slander, malicious prosecution and false arrest arising from these incidents. Respondent counterclaimed for rents appellant collected after respondent purchased the building from the bank. Six counts of appellant's tort claims, as well as respondent's counterclaim for rent money, were resolved by verdict in a jury trial in December 1989. The jury was unable to dispose of the other two tort claims (Count VII and VIII). The court declared a mistrial on these two counts and ordered them for retrial. Appellant deposited funds into the court registry to cover the jury award on respondent's counterclaim for rent money appellant collected after respondent purchased the property. Prior to a second trial, the parties for consideration entered into a stipulation for voluntary dismissal with prejudice on these counts. A docket sheet revealed that the stipulation was filed on August 26, 1992. There is no evidence other than the clerk's recognition of the filing, that the court approved the stipulation and ordered a dismissal.

On October 20, 1992, appellant filed motions that this case be made final for the purpose of appeal and for a partial payout of funds from the court's registry account. The motions were argued on October 26, 1992. The trial court, believing that its jurisdiction over the case had already expired, rejected appellant's motion to make a final order, refused to modify the basis for the calculation for rent money due respondent and issued a payout order granting respondent $19,352.85 and appellant $668.55 of the $20,021.40 in the account. Appellant refused to accept the money the court put in his name, claiming the court lacked jurisdiction to pay out any of the funds in the account.

On November 2, 1992 appellant filed a notice of appeal based on alleged errors at trial and the payout order. Respondent motioned this court to dismiss for lack of jurisdiction claiming appellant filed his notice of appeal after the time for filing expired and, in addition, he never filed an 81.07(a) motion seeking permission to file late. Respondent claims that the stipulation was a final order in that when combined with the jury verdict and the directed verdict, it disposed of all the issues as to all the parties leaving nothing for further adjudication. Pizzo v. Pizzo, 365 Mo. 1224, 295 S.W.2d 377, 379 (1956).

The right to appeal is purely statutory. Starnes v. Aetna Casualty and Surety Co., 503 S.W.2d 129, 130 (Mo.App.1973). Unless a statute confers the right, this court has no power to hear an appeal. Rule 81.01. Under § 512.020 RSMo 1986 and Rule 81.04(a) and 81.05(a), an appeal may be taken from any final judgment in the case. The finality of a judgment is a jurisdictional prerequisite to appellate jurisdiction. Harris v. Union Elec. Co., 685 S.W.2d 607, 610 (Mo.App.E.D.1985). A judgment, order or decree of the trial court is final only when it disposes of all issues relating to all parties and leaves nothing for future determination. Haugland v. Parsons, 827 S.W.2d 285, 286 (Mo.App.E.D.1992).

Our courts have further stated, unless a party exercises its right under Rule 67.01 to dismiss prior to the introduction of evidence, all dismissals require an order of court, which is to be with prejudice unless the court states otherwise. Shirrell v. Missouri Edison Co., 535 S.W.2d 446, 450 (Mo. banc 1976); J.L. Mason Group v. Dardene Prairie, 763 S.W.2d 727, 729 (Mo.App.1988); First National Bank of Colorado Springs v. Mark IV Co., 591...