Asbury v. Crawford Electric Cooperative, Inc.

9 S.W.3d 774, 2000 Mo. App. LEXIS 162, 2000 WL 97752
CourtMissouri Court of Appeals
DecidedJanuary 31, 2000
DocketNo. 22630
StatusPublished
Cited by7 cases

This text of 9 S.W.3d 774 (Asbury v. Crawford Electric Cooperative, Inc.) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Asbury v. Crawford Electric Cooperative, Inc., 9 S.W.3d 774, 2000 Mo. App. LEXIS 162, 2000 WL 97752 (Mo. Ct. App. 2000).

Opinion

PHILLIP R. GARRISON, Chief Judge.

Mary Asbury (“Plaintiff’) appeals from a judgment entered after trial by the court in a suit she brought against Crawford Electric Cooperative, Inc. (the “Coop”). The suit involved her attempt to obtain electric service for property she owned in Crawford County.

Plaintiff purchased Lot 23 of the Black Briar Hill Subdivision on September 1, 1995. The property consists of a lot with a house, access to which is provided by a road through or adjacent to land owned by Ronald Starbeck (“Starbeek”), Oak Crest Enterprises, Inc. (“Oak Crest”), and several other people who owned property between Plaintiffs land and the nearest location of the Coop’s lines. There was no electrical service to the property when Plaintiff purchased it, and she applied to the Coop for electrical service on the same day she purchased the property.1 In doing so, she signed an “Application for Membership and Service Contract” (“Application”), which provided, inter alia, that Plaintiff “must furnish without cost to the [Coop] the necessary permits, easement, [776]*776or right of way for the construction and operation of the service extension.” At the same time she signed the Application, Plaintiff signed an easement in favor of the Coop giving it the right to place, construct, operate, repair and maintain an electric transmission or distribution line on her property to be used to furnish electricity to that property.

The Coop informed Plaintiff that several easements would be required in order for it to provide electricity to her property. Plaintiff was able to obtain all necessary easements in favor of the Coop except from two of the intervening owners; Star-beck and Oak Crest. At some point, Plaintiff discussed with the Coop’s representative about building the electric line along the road to her property through the land owned by the intervening owners who had not granted easements for the line. She was subsequently informed by the Coop that that was not possible, apparently because the Coop had no right to build on that easement.

Later, Plaintiff met with Jerry Wellington (“Wellington”), the Coop’s operations manager, who had authority to make decisions regarding establishing service to new members. She informed him that the telephone company was burying its cable adjacent to the roadway to her property, and inquired if the Coop could do the same with its line. We gather that the Coop determined that for $1,000 Starbeck would be willing to sign an easement to the Coop. Plaintiff was told that if she would pay for the easement to Starbeck, and would pay $6 per foot for burying the line along the road adjacent to the Oak Crest property, the Coop would provide electricity to her property. On November 21, 1995, Starbeck signed an easement in favor of the Coop, reciting that the consideration was $1,000 paid by Plaintiff. This apparently occurred at a meeting attended by Starbeck, Plaintiff, a friend of Plaintiffs, Wellington, and a member of the Coop’s engineering department. A week later, however, Plaintiff was contacted by Wellington and told that the Coop was not going to provide electrical service to her property. This determination apparently was made by the Coop’s manager, Larry Austin, when he learned of the arrangement between Plaintiff and Wellington, and realized that the road in question was not a public road, and that the easement for that way was private and did not provide for the installation of electrical facilities.

Plaintiffs suit against the Coop was in three counts: count one was for breach of contract based on the agreement to provide electrical service if she would pay Starbeck $1,000 for an easement through his property; count two was in tort based on an alleged statutory duty to provide electrical service pursuant to § 393.130;2 and count three was for fraudulent misrepresentation based on the representation that the Coop would provide electrical service if she paid Starbeck $1,000 for the easement across his property. The Coop denied that there was an agreement to provide Plaintiff with electrical service if she paid Starbeck $1,000; it alleged that Plaintiff was contractually bound to obtain all necessary easements to run electricity to her property and that she failed to do so; and it alleged that it had offered to reimburse Plaintiff for the $1,000 she paid to Starbeck. The Coop also filed a counterclaim seeking a declaratory judgment, and a third-party petition against Oak Crest seeking to condemn an easement across its property at the expense of Plaintiff, alleging that pursuant to her application for membership, she agreed to furnish without cost to the Coop the necessary easement for the construction and operation of the electrical service to her property. The counterclaim for a declaratory judgment was subsequently dismissed by the Coop. After a trial to the court, a judgment was entered ordering the Coop [777]*777to pay Plaintiff $1,000 after finding that the Coop’s attorneys had conceded in court that Plaintiff was entitled to recover that amount, and it found “for [the Coop] on all other issues of damage.” The court also found, pursuant to Rule 74.01(b), that the judgment was final and that there was no just reason for delay. This appeal followed.

Even though neither party raises an issue about the completeness of the judgment in this case, we are required to examine the record to ascertain, sua sponte, if the jurisdictional prerequisite of a final judgment has been met. Watson v. Moore, 983 S.W.2d 208, 209 (Mo.App. S.D.1999). To constitute an appealable judgment, a judgment must dispose of all issues in a case and leave nothing for future determination. Gibson v. Brewer, 952 S.W.2d 239, 244 (Mo. banc 1997).

Rule 74.01(b) provides an exception to the requirement that a final judgment must dispose of all issues for cases with multiple claims. Id. That rule permits the trial court to enter a judgment on less than all claims and certify that there is “no just reason for delay.” That determination by the trial court is not conclusive, however. Id. “It is the content, substance, and effect of the order that determines finality and appealability.” Id. The appellate court must still decide if the partial judgment actually qualifies as a final judgment. Clay County v. Harley and Susie Bogue, Inc., 988 S.W.2d 102, 108 (Mo.App. W.D.1999).

“Although a circuit court may designate its judgment final as to particular claims, this designation is effective only when the order disposes of a distinct ‘judicial unit.’” Gibson, 952 S.W.2d at 244. “The required ‘judicial unit for an appeal’ has a settled meaning: ‘the final judgment on a claim, and not a ruling on some of several issues arising out of the same transaction or occurrence which does not dispose of the claim.’ ” Id. It is differing, separate, distinct transactions or occurrences that permit a separately appealable judgment, not differing legal theories or issues presented for recovery on the same claim. Weir v. Brune, 364 Mo. 415, 262 S.W.2d 597, 600 (1953). The minimum unit of disposition is at least one claim. Committee For Educ. Equality v. State, 878 S.W.2d 446, 450 (Mo.banc 1994).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Gilberto Rincones v. Whm Custom Services, Inc.
Court of Appeals of Texas, 2012
Superlube, Inc. of Camdenton v. Innovative Real Estate, Inc.
147 S.W.3d 880 (Missouri Court of Appeals, 2004)
Hylton v. Standley
112 S.W.3d 482 (Missouri Court of Appeals, 2003)
Shelter Mutual Insurance Co. v. Vulgamott
96 S.W.3d 96 (Missouri Court of Appeals, 2003)
Sunbelt Environmental Services, Inc. v. Nielsen
75 S.W.3d 889 (Missouri Court of Appeals, 2002)
Asbury v. Crawford Electric Cooperative, Inc.
51 S.W.3d 152 (Missouri Court of Appeals, 2001)

Cite This Page — Counsel Stack

Bluebook (online)
9 S.W.3d 774, 2000 Mo. App. LEXIS 162, 2000 WL 97752, Counsel Stack Legal Research, https://law.counselstack.com/opinion/asbury-v-crawford-electric-cooperative-inc-moctapp-2000.