Cunningham v. Burke

705 S.W.2d 120, 1986 Mo. App. LEXIS 3669
CourtMissouri Court of Appeals
DecidedFebruary 11, 1986
DocketNo. WD 36921
StatusPublished
Cited by3 cases

This text of 705 S.W.2d 120 (Cunningham v. Burke) 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
Cunningham v. Burke, 705 S.W.2d 120, 1986 Mo. App. LEXIS 3669 (Mo. Ct. App. 1986).

Opinion

MANFORD, Judge.

This is a civil action for breach of contract. The judgment is reversed and the cause remanded.

While appellant formally presents three points, only one is taken up due to the disposition of this appeal. In summary, it is charged that the trial court erred in overruling appellant’s motion for directed verdict because of the failure to join necessary and indispensable parties.

This ease was tried to the circuit court, thus bringing review of the matter within Rule 73.01 and Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976), which has interpreted the rule.

The pertinent facts are as follows: In 1979, respondent (Charles Craig Cunningham), along with his wife (Elvina Cunningham) and parents (Mr. and Mrs. Charles Cunningham), entered into a conditional sales agreement for the purchase of a registered herd of Angus cattle owned by the estate of U.G. Lewellen. The agreement was based on a purchase price of $100,-000.00, and title to the cattle was to be transferred to respondent after payment in full of the purchase price.

In 1983, respondent decided to hold a dispersal sale of the cattle (dispersal being the sale of the entire herd), and to use the proceeds of the sale to pay off the outstanding balance of the purchase price to the estate. At that time, there was approximately $95,000.00 still owed on the cattle.

Mr. Charles Cunningham (respondent’s father) contacted appellant Burke who, along with appellant Scheer, operated a business known as the American Angus Hall of Fame for the sale of Angus cattle. An agreement was reached whereby appellants would manage the dispersal auction sale of the cattle. In a letter sent to Charles Cunningham and dated May 4, 1983, appellant Burke outlined the matters which he agreed to handle, among those being the writing, preparation and dis-[122]*122persement of the sale catalogs and all other advertising.

The auction was held on September 21, 1983, at the farm of respondent and his wife. There were approximately 124 head of cattle and cow-calf pairs sold, approximately 100 people attended the auction, and the gross sale proceeds were approximately $67,160.00. After the sale the balance remaining and still owed to the estate was approximately $16,000.00.

On January 19,1984, respondent filed his petition for damages alleging that appellants had breached their contract as to their performance and handling of auction as well as pre-auction matters, and that, as a result, the cattle were sold well below market price, thereby damaging respondent in the amount of $98,399.95.

Trial commenced on November 8, 1984. Before opening statements were made appellants made a motion for continuance on the ground that appellants’ counsel had been retained only two days prior. The court denied their motion and the proceedings commenced.

At the close of respondent’s opening statement, appellants made a motion for directed verdict on the basis of admissions made by respondent in his opening statement, to wit: that the title to the cattle was with the Lewellen estate at the time of the sale, thereby giving the estate a vested interest and, that respondent’s wife and parents were parties to the conditional sales agreement, thereby giving them a vested interest. Therefore, appellants argued, the respondent was not the “proper party” in this action. The court overruled appellant’s motion.

Again, at the close of respondent’s evidence, appellants made a motion for directed verdict, basically stating the same grounds as recited in the earlier motion. Again, the court overruled appellants’ motion. Appellants presented no evidence.

The court entered its judgment in favor of respondent and entered findings of fact and conclusions of law. The court did not make any specific findings as to the additional parties which appellants now claim are necessary and indispensable parties. This appeal followed.

As noted above, the sole point considered herein is whether the trial court erred in refusing to grant appellants’ motion for directed verdict for failure to join necessary and indispensable parties.

Appellants’ objections and motions for directed verdict were based on whether the parties were “proper parties” and as such, falls under the permissive joinder Rule 52.-05. “The question of adding or joining parties is a different one from permissive joinder or such modern procedural devices as third party practice.” State ex rel. Emcasco Insurance Co. v. Rush, 546 S.W.2d 188, 195 (Mo.App.1977).

Therefore, it appears that appellants did not raise the issue of nonjoinder of a necessary and indispensable party at the trial level. However, the issue of whether there has been a failure to join a necessary and indispensable party is jurisdictional and may be raised at any time, even on appeal. Rule 55.27(g)(2); Lake Sherwood Estates Association v. Continental Bank & Trust Co., 677 S.W.2d 372, 375-76 (Mo.App.1984).

Discussion of appellants’ alleged error is subdivided into two subpoints, (a), pertaining to the nonjoinder of the Lewellen estate, and (b), pertaining to the nonjoinder of respondent’s wife and parents. A general discussion of the joinder Rule 52.04 is first in order, and then its application to appellants’ subpoints (a) and (b) follows.

The rule on the joinder of necessary and indispensable parties provides in part:

(a) Persons to be Joined if Feasible. A person shall be joined in the action if (1) in his absence complete relief cannot be accorded among those already parties, or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substan[123]*123tial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest. If he has not been joined, the court shall order that he be made a party. If he should join as a plaintiff but refuses to do so, he may be made a defendant.
(b) Determination by Court Whenever Joinder not Feasible. If a person as described in subdivision (a)(l)-(2) hereof cannot be made a party, the court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed, the absent party being thus regarded as indispensable. The factors to be considered by the court include: first, to what extent a judgment rendered in the person’s absence might be prejudicial to him or those already parties; second, the extent to which by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; third, whether a judgment rendered in the person’s absence will be adequate; fourth, whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder. ******

As interpreted by numerous Missouri cases, the determination the court must make under 52.04 is two-fold. First, the court must determine whether the parties are “necessary” and if so, they must be joined.

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Cite This Page — Counsel Stack

Bluebook (online)
705 S.W.2d 120, 1986 Mo. App. LEXIS 3669, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cunningham-v-burke-moctapp-1986.