Birdsong v. Bydalek

931 S.W.2d 217, 1996 Mo. App. LEXIS 1761, 1996 WL 604180

Opinion

PER CURIAM.

In Birdsong v. Bydalek, 905 S.W.2d 896 (Mo.App. S.D.1995), henceforth referred to as “Birdsong I” two appeals were brought to this court in this ease. One was by Roy Birdsong and Collyer Kelling (plaintiffs in the trial court); the other was by Bobbi Bydalek (one of the seven defendants). This court dismissed the appeals because the judgment did not dispose of all claims.

The pleadings on which this case was tried are identified and described in Birdsong I. Id. at 897-98. That opinion should be read as a preface to the present opinion.

Subsequent to Birdsong I, the trial court, on November 9, 1995, signed and filed an “Amended Judgment Entry.” In one part of that document, the trial court granted a motion by HCH Ozark Investors, Inc., Vacation World, Inc., Dwight Sprague and Branson Commercial Property Investors Joint Venture to dismiss Count III of their second amended cross-claim and counterclaim, thereby curing one of the ills that compelled dismissal of the appeals in Birdsong I. Id. at 897-98. However, the Amended Judgment Entry, while arguably adjudicating Count I of the pleading referred to in the preceding sentence, fails to either grant or deny relief on Count II.

Furthermore, the counterclaim of Bydalek sought actual damages, exemplary damages and attorney fees from Birdsong and Kelling. The Amended Judgment Entry awards By-dalek actual damages on her counterclaim, but neither grants nor denies exemplary damages or attorney fees.

Finally, the cross-claim of Bydalek sought sundry relief including, inter alia, compensatory damages and attorney fees against the other defendants. The Amended Judgment Entry neither grants nor denies compensatory damages or attorney fees on Bydalek’s cross-claim.

This court now has three appeals before it from the Amended Judgment Entry. One is by Birdsong and Kelling; the second is by Bydalek; the third is by the other six defendants.

Because the Amended Judgment Entry fails to adjudicate the claims identified earlier in this opinion, this court must again dismiss the appeals. The law compelling that result is set forth fully in Birdsong I.

Appeals dismissed.