Miller v. Miller

73 S.W.3d 888, 2002 Mo. App. LEXIS 913, 2002 WL 826803
Missouri Court of Appeals·Decided May 2, 2002·No. No. 24073·Published

Opinion

NANCY STEFFEN RAHMEYER, Judge.

Jimmie C. Miller and William E. Miller (“Appellants”) appeal from an interlocutory judgment ordering a partition and sale of certain real property. They raise three points on appeal. Donald R. Miller and Karen M. Miller (“Respondents” or “Respondent” when referring to Donald R. Miller individually) filed a motion to dismiss the appeal, contending that the interlocutory judgment and order is not a final, appealable judgment. We disagree; however, we find no reversible error and affirm.

Appellants and Respondent are brothers. The evidence indicates that on February 5, 1981, their father, Donald C. Miller (“Father”), and his wife executed and caused to be recorded a general warranty deed for property located in Chafee, Missouri, which reserved for themselves a life estate with the remainder in fee designated to Appellants and Respondent as tenants in common. On December 13, 1999, Father, whose wife had since passed away, purportedly executed a quitclaim deed by which he transferred his life estate to Appellants and Respondent in equal parts, as tenants in common. This deed was recorded on January 18, 2000 in Scott County-

On that same date, Respondents filed a petition for partition of the property alleging that Appellants individually and Respondents jointly owned a one-third interest in the real property.1 Respondents asked the trial court to determine that they and Appellants were equal co-owners of the property and to order a partition of the property by sale. In February 2000, Appellants filed a motion to dismiss, alleging that Father was the owner of the property, and that they and Respondent only held a remainder interest pursuant to the February 1981 deed. They also filed a counterclaim charging that Respondents misappropriated and converted some of Appellants’ personal property that was [891]*891stored in the residence on the property. In June 2000, Respondents filed a motion to enforce status quo pending trial, asking the trial court, in part, to order that the property remain unoccupied.2 On August 25, 2000, the parties mutually agreed to withdraw the motion to dismiss and motion to enforce status quo.3

Two other documents are of note to the proceedings. First, a durable power of attorney signed May 12, 1995, was recorded on October 11, 2000 in Bollinger County, Missouri. Within the durable power of attorney, Father appointed his brother and Respondent to act as attorneys-in-fact on his behalf.4 Second, in an unrecorded quitclaim deed dated December 15, 2000, Respondent and Father’s brother, acting as attorneys-in-fact under the durable power of attorney, conveyed Father’s interest in the real property to Appellants and Respondent as tenants in common.

A hearing on the matter was held on January 17, 2001. At the hearing, the trial court allowed Appellants to file an answer out of time, which contained two affirmative defenses. One defense was that Father lacked the mental capacity to execute the 1999 deed, and the second defense was that, in the event of a partition, Appellants requested compensation for repairs and improvements they had made to the property. After the completion of Respondents’ evidence, Appellants indicated that their only witness was unable to attend the proceedings. According to Appellants, this witness would speak to Father’s capacity to execute the December 1999 deed. Appellants asked the trial court to keep the record open and allow them to subpoena Father’s medical records related to the capacity issue.5 The trial court denied Appellants’ request to keep the case open.

During the hearing, Appellants objected to the introduction into evidence of the durable power of attorney and the December 2000 unrecorded deed. The objection against the admission of the durable power of attorney was made on relevancy grounds, but no grounds were stated for the objection against the admission of the unrecorded deed. Both objections were overruled.

The trial court issued an interlocutory judgment and order in which it found that Appellants and Respondent6 were owners [892]*892of the property as tenants in common, each having a one-third interest. The trial court further determined “that due to the nature, uniqueness, and condition of the property[,]” partition in kind could not be accomplished “without great prejudice to the owners.” The trial court, therefore, ordered that the property be sold. The trial court further ordered that the proceeds of the sale “be partitioned between the parties according to their respective interests.” Lastly, the trial court scheduled an evidentiary hearing on damages and “all other issues relating to the distribution of the proceeds[,]” to take place after the sale of the property. Before the sale itself occurred, Appellants filed this appeal.

In their first point on appeal, Appellants essentially respond to Respondents’ motion to dismiss the appeal for lack of appellate jurisdiction. Respondents argue that the appeal is not ripe for our consideration because the trial court’s interlocutory judgment and order is not a final, appeal-able judgment. They contend that the order of the court setting a subsequent hearing on damages and on all other issues relating to the distribution of the proceeds precludes a finding that the interlocutory judgment determined the rights of the parties.

“A final, appealable judgment disposes of all parties and all issues in the case, leaving nothing for further determination.” Albright v. Kelley, 926 S.W.2d 207, 209 (Mo.App. S.D.1996). In the absence of a final judgment, appellate review is generally not appropriate. Id. However, “[t]he right of appeal is purely statutory.” Id. Under § 512.020.6, an interlocutory judgment that orders partition may be appealed prior to the partition sale and the subsequent final order regarding distribution of the proceeds, if the interlocutory judgment determines the rights of the parties.7 Donnelly v. Donnelly, 951 S.W.2d 650, 652 (Mo.App. E.D.1997).

The language in § 512.020.6 regarding the rights of the parties has been interpreted to signify rights or quantum of ownership. First National Bank of Carrollton v. Eucalyptus, 721 S.W.2d 165, 167 (Mo.App. W.D.1986). If an interlocutory judgment determines title or quantum of interest in the property being partitioned, that judgment may be appealed. Id. at 166. Therefore, “[w]here there is no determination as to the ownership of each of the parties to a partition action, there has been no determination of the rights of the parties.” Albright, 926 S.W.2d at 210. Further, if there are no issues regarding title or quantum of interest in the property, or the parties only disagree as to whether the property should be partitioned in kind or by sale, the interlocutory judgment may not be appealed. Unsel v. Meier, 880 S.W.2d 646, 647 (Mo.App. S.D.1994).

In the instant ease, the interlocutory judgment determined title and the rights of Appellants and Respondent to the property. There were issues regarding title and quantum of interest raised at the hearing.

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Miller v. Miller, 73 S.W.3d 888, 2002 Mo. App. LEXIS 913, 2002 WL 826803 (Mo. Ct. App. 2002).

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Related

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Donnelly v. Donnelly
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721 S.W.2d 165 (Missouri Court of Appeals, 1986)
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Lushenko v. Lushenko
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State v. Burns
759 S.W.2d 288 (Missouri Court of Appeals, 1988)
Unsel v. Meier
880 S.W.2d 646 (Missouri Court of Appeals, 1994)
Patterson v. Checkett
43 S.W.3d 477 (Missouri Court of Appeals, 2001)