Topping Estates v. The Spalitto Living Tr.

• Docket Number: ED111623
• Decision Date: 28 November 2023
• Parties: TOPPING ESTATES, CAREY MULLEN, ERIC DANKER, AND CARTER OLDFIELD, Appellants, v. THE SPALITTO LIVING TRUST, PETER J. SPALITTO, AND SUSAN V. SPALITTO, Respondents.
• Court: Missouri Court of Appeals

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TOPPING ESTATES, CAREY MULLEN, ERIC DANKER, AND CARTER OLDFIELD, Appellants,
v.
THE SPALITTO LIVING TRUST, PETER J. SPALITTO, AND SUSAN V. SPALITTO, Respondents.

No. ED111623

Court of Appeals of Missouri, Eastern District, Second Division

November 28, 2023

Appeal from the Circuit Court of St. Louis County Honorable Matthew H. Hearne

KURT S. ODENWALD, PRESIDING JUDGE

Introduction

Topping Estates, a subdivision association, through and with its alleged trustees, Carey Mullen, Eric Danker, and Carter Oldfield, (collectively, "Appellants") appeal from the circuit court's amended order and judgment granting partial summary judgment in favor of the Spalitto Living Trust, Peter J. Spalitto, and Susan V. Spalitto (collectively "the Spalittos") and denying partial summary judgment to Appellants. The order found that Topping Estates' indentures were expired, void, or invalid, and thus had no restricting effect on the Spalittos, who owned a lot in Topping Estates. Although the Spalittos' amended counterclaims remained pending, the circuit court declared there was no just reason for delaying an appeal of the order, and it certified the

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order as final for purposes of appeal pursuant to Rule 74.01(b).^[1] Appellants raise five points on appeal.^[2]

Because the judgment appealed from in this case is neither a "final judgment" in the sense that it resolves all claims against all parties, nor a "final judgment" eligible for certification as "final" under Rule 74.01(b) because it disposes of a "judicial unit" of claims, it is not a "final judgment" as required under Section 512.020(5).^[3] Wilson v. City of St. Louis, 600 S.W.3d 763, 765 (Mo. banc 2020). Accordingly, we lack jurisdiction and must dismiss the appeal.

Factual and Procedural History

We address only those facts necessary to our analysis of whether we have jurisdiction to review the appeal.

Topping Estates represents a subdivision located in the municipality of Town and Country within St. Louis County. First platted in 1956 as an eight-lot subdivision, within the course of one year the subdivision grew to forty-four lots, including the lot at issue in this action. The original owners established a set of indentures (the "Indentures") setting forth various restrictions on the property owners. The Indentures included a sunset clause providing for the expiration of restrictions in 2010, unless otherwise extended. The Indentures also set forth two methods for amending its terms:

All or any of the foregoing provisions or restrictions may be modified, amended, released or extinguished at any time by written instrument executed, acknowledged

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and recorded, as required by law, for instruments affecting real estate, by the owners of a majority in number of lots as per plat of said "TOPPING ESTATES" except as otherwise provided in this instrument. The Trustees above however, are given the right to amend, alter, extinguish, modify or add to these restrictions, if such be required to comply with the rules of the Federal Housing Authority, Veterans Administration or any other Governmental Agency or law, either Federal, State or Local.

Two efforts to amend the Indentures followed, first in 1993 and again in 1997. In relevant part, the amendments removed the 2010 sunset clause and provided that the Indentures would automatically renew every twenty-five years. The amendments also established procedures to acquire trustee approval for certain architectural changes. The Indentures and the amendments included a fifty-foot setback requirement for any structures (the "Build-line").

The Spalittos purchased Lot 29 (the "Lot") in 2019 and began construction on their new home in 2020. Appellants allege the construction violated numerous Indentures, contending the Spalittos did not seek approval before beginning construction or changing the Lot's grade and did not submit a required deposit to the trustees. Appellants further allege that the construction extends over the Build-line. The Spalittos counter that neither the Indentures nor the 1993 or 1997 amendments are valid and enforceable. As to the Build-line, the Spalittos do not dispute that the home extends beyond the line but challenge the enforceability of the Build-line.

In August 2020, Appellants filed a one-count petition against the Spalittos alleging that the Spalittos' construction violated numerous restrictions in the Indentures. Appellants sought to enforce the Indentures, enjoin construction on the Lot, collect money damages for unpaid general and special assessments, and recover attorneys' fees. Appellants also filed with the St. Louis County Recorder of Deeds a notice of violation of the Indentures and a notice of Its pendens stating an action against the Spalittos was pending in the circuit court regarding their construction's non-compliance with the Indentures. The Spalittos responded by filing an

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amended seven-count counterclaim against Appellants (the "Amended Counterclaims"). In Count I of the Amended Counterclaims, the Spalittos sought: (a) declaratory relief that neither the Indentures nor the Build-line affects their Lot; (b) declaratory relief that the named trustees are not valid trustees of Topping Estates; (c) declaratory relief that Appellants are not entitled to indemnity from the subdivision's lot owners; (d) attorneys' fees and money damages; and (e) any other relief the circuit court deemed just. The Amended Counterclaims also alleged slander of title (Count II), abuse of process (Count III), specific performance (Count IV), breach of fiduciary duty (Counts V and VI), and prima facie tort (Count VII).

The parties cross-moved for partial summary judgment. After briefing their motions and oppositions, the parties argued their positions at a hearing before the circuit court. The circuit court issued an order and judgment in December 2022 (the "December 2022 Judgment") granting partial summary judgment in favor of the Spalittos "on the entirety of [Appellants'] petition." The December 2022 Judgment noted that the Spalittos' Amended Counterclaims "remain[ed] pending." The circuit court made the following findings in support of its summary-judgment ruling: (1) the Indentures expired in 2010 and do not restrict the subdivision, including the Spalittos' Lot; (2) the 1993 amendments were not validly enacted and are void; (3) the 1997 amendments were not validly enacted and are void; and (4) the Build-line is unenforceable.

Appellants moved the circuit court to reconsider the December 2022 Judgment and to certify it as a final judgment for purposes of appeal under Rule 74.01(b). The circuit court denied the motion to reconsider but granted the request to certify the December 2022 Judgment. In March 2023, the circuit court entered an order and judgment (the "March 2023 Judgment"), which incorporated all findings and conclusions from the December 2022 Judgment, found there

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was no just reason for delay of appeal, and certified the order as a final judgment for purposes of appeal pursuant to Rule 74.01(b). Appellants appeal from the March 2023 Judgment.

This Court issued an order to show cause why the appeal should not be dismissed for lack of jurisdiction. Appellants submitted a response to the order, and we took the matter of jurisdiction with the case.

Jurisdiction

Before reaching the merits, this Court has a duty to determine whether it has jurisdiction to hear the appeal. Wilson, 600 S.W.3d at 765. If we lack jurisdiction, the appeal must be dismissed. Energy Mkt. 709, LLC v. City of Chesterfield, 614 S.W.3d 643, 647 (Mo. App. E.D. 2020).

"The right to appeal is purely statutory, and where a statute does not give a right to appeal, no right exists." Wilson, 600 S.W.3d at 767 (internal quotation omitted). The Missouri legislature has granted a right to appeal only "final judgments." Section 512.020(5); see also Gibson v. Brewer, 952 S.W.2d 239, 244 (Mo. banc 1997) (internal quotation omitted) ("A prerequisite to appellate review is that there be a final judgment."). "[A] judgment is a legally enforceable judicial order that fully resolves at least one claim in a lawsuit and establishes all the rights and liabilities of the parties with respect to that claim." State ex. rel. Henderson v. Asel, 566 S.W.3d 596, 598 (Mo. banc 2019). A judgment becomes "final," and thus appealable under Section 512.020(5), when it disposes of all claims (or the last pending claim) in a suit, leaving nothing for future determination. Jefferson Cnty. 9-1-1 Dispatch v. Plaggenberg, 645 S.W.3d 473, 475 (Mo. banc 2022); Ndegwa v, KSSQ, LLC, 371 S.W.3d 798, 801 (Mo. banc 2012). Here, neither party suggests the March 2023 Judgment is a final judgment under Section 512.020(5), nor could they. The Spalittos' Amended Counterclaims remain pending, and therefore, the March 2023 Judgment cannot be deemed a final judgment.

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See Columbia Mut. Ins. Co. v. Epstein, 200 S.W.3d 547, 549 (Mo. App. E.D. 2006) ("Generally, when considering finality of a judgment, if a counterclaim is pleaded, the trial court must make a finding that disposes of the counterclaim.").

However, Rule 74.01(b) "provides a limited exception [to Section 512.020(5)'s] finality requirement." First Naf 1 Bank of Dieterich v. Pointe Royale Prop. Owners' Ass'n, Inc., 515 S.W.3d 219, 221 (Mo. banc 2017). When "more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved," Rule 74.01(b) authorizes the circuit court to enter judgment on one or more (but fewer than all) of the claims and certify that there is no just reason for delaying the appeal, thereby rendering that judgment a "final judgment." Rule 74.01(b); First Nat'l Bank of Dieterich, 515 S.W.3d at 221-22.

It is important to note that our Supreme Court "has never construed the phrase 'final judgment' in Section...