Moran v. Flach

752 S.W.2d 956, 1988 Mo. App. LEXIS 907, 1988 WL 66584
CourtMissouri Court of Appeals
DecidedJune 28, 1988
DocketNo. 53696
StatusPublished
Cited by7 cases

This text of 752 S.W.2d 956 (Moran v. Flach) 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
Moran v. Flach, 752 S.W.2d 956, 1988 Mo. App. LEXIS 907, 1988 WL 66584 (Mo. Ct. App. 1988).

Opinion

PUDLOWSKI, Judge.

This appeal is from an action under the provisions of Section 228.340, RSMo 1986, for the establishment of a private road. [958]*958The judgment established the road across the properly of appellant, Kathryn Flach, who is now deceased and has been succeeded as a party by her daughter Carol Hardy. In addition, the jury assessed the damages for the private condemnation in the amount of $25,000 against the respondent, Adele Moran. We affirm.

Respondent owns a tract of land in St. Louis County. In 1976, the State Highway Department condemned a sizable portion of her property; this action caused the property to become landlocked. Two parcels of land adjoin the Moran property. One parcel is owned by the appellant and is being used as a trailer court, and the other is owned by Bridgeton Investment Company [hereinafter Bridgeton].

Originally, respondent included Bridge-ton as a defendant. Respondent, however, did not seek to establish the road across the property of Bridgeton; therefore, a motion to dismiss filed by Bridgeton was sustained. The court established the road according to respondent’s amended petition. The commissioners, who were appointed to mark out the road, adopted in their report the easement requested by the respondent and determined that the appellant’s damages were $40,000. Respondent filed exceptions to the commissioners’ award and requested a jury trial. Appellant also objected to the damages and requested a trial by jury. The jury trial produced the judgment from which appeal is now taken. Further facts will be set out as we discuss the issues in this appeal.

Appellant’s first point alleges that the trial court failed to join an indispensable party to the litigation or to allow cross-examination on the issue of ownership of the property. Respondent testified at trial that she was the sole owner of the property. Appellant’s counsel wished to cross-examine the respondent concerning a deposition taken previously in which she had testified that her attorney had a one-third interest in the property as a result of an agreement between them made after the state condemnation hearing. The deposition testimony also revealed the fact that no deed had been executed nor was there anything to evidence the fact that respondent’s attorney owned one-third of the property.

The failure to join an indispensable party is fundamental and jurisdictional and requires consideration by this court. Spellerberg v. Huhn, 672 S.W.2d 728, 729 (Mo.App.1984). To be an indispensable party, respondent’s counsel would need to be a holder of a recorded interest. In Speller-berg, the court explained, “Four different parties are presently record holders of some interest in the subject property and are therefore indispensable parties to a determination of this common interest.” Id. (emphasis added). See also Polette v. Williams, 456 S.W.2d 328 (Mo.1970) (deed contained possibility of reverter); Neal v. Drennan, 640 S.W.2d 132, 137 (Mo.App.1982) (claimants of record title are indispensable parties). Contrary to appellant’s argument, Missouri law limits indispensable parties to claimants of record title in these circumstances.

Respondent’s attorney offered to stipulate that he had no interest in the property at the time of trial, but that his interest was contingent upon the respondent ultimately acquiring the easement. The trial court ruled that respondent’s fee arrangement, even though it may involve a contingent future interest in the property, was not relevant to the issues in the case. We agree. Respondent’s counsel was not an indispensable party to this litigation because he was not a claimant of record title.

Appellant also argues under her first point that she was denied the right to cross-examine respondent. Appellant wanted to use respondent’s deposition to impeach her trial testimony concerning the ownership of the property. Appellant’s motion for a new trial states:

The Court erred in not requiring attorney Joe Bill Carter to be joined as a party plaintiff, it having been Plaintiff Adele Moran’s specific and unequivocal [959]*959testimony in depositions, in the prior Circuit Court hearing, and before the Commissioners’ hearing that Mr. Carter owned a one-third interest in the real estate.

The quoted passage is the only reference to the deposition in the new trial motion. The motion does not allege that the trial court erred in determining that appellant could not use respondent’s deposition to impeach her trial testimony concerning the ownership of the property. Matters not included in a motion for a new trial and not specifically objected to at trial are not properly preserved for appellate review. Rule 78.07. Moreover, in light of our previous holding, it was not error to so limit the cross-examination.

Appellant also attempts to convince this court that respondent’s counsel was an indispensable party because “their interest in obtaining the easement is identical to a partnership venture.” In support, appellant cites cases which hold that all partners are necessary parties in a cause of action involving a partnership interest. See, e.g,, Wittels v. Dubinsky, 343 S.W.2d 644 (Mo.App.1961). Nevertheless, Wittels and similar cases were found by our Supreme Court to have no applicability to a case in which an interest was contingent. State ex rel. Knight Oil Co. v. Vardeman, 409 S.W.2d 672 (Mo. banc. 1966). Specifically, the case explains, “the mere participation in the contingent proceeds of a suit is not, in our view an ‘association’ to carry out a ‘business enterprise for profit.’ ” Id. at 676. This point is denied.

Appellant’s second point maintains that the trial court erred in dismissing defendant Bridgeton as a party to this litigation, thereby improperly limiting its jurisdiction to the land of the appellant.1 Appellant’s argument contends that the court, therefore, denied the commissioners and the jury the opportunity to determine the best method of ingress and egress for the respondent. This argument, however, is futile. Section 228.340, RSMo 1986, does not direct that alternate ways of necessity across other adjoining land owner’s property be considered.

Appellant relies on Welch v. Shipman, 357 Mo. 838, 210 S.W.2d 1008 (1948). The case, however, does not stand for the proposition that a landowner can defeat a plaintiff’s right to a way of necessity by pointing to another against whom relief might have been sought. In Welch, the court found that a proposed private road was not a necessity because there were reasonable alternate routes across defendant’s land. A more recent case clarified the issue as follows: “While it is true that it is a ‘good answer to show another way which the party may use,’ there is no authority in Missouri cases for holding that such other way will abrogate plaintiff’s claim of necessity where it is not a legally enforceable way.” Hill v. Kennoy, Inc., 522 S.W.2d 775, 777 (Mo.

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Bluebook (online)
752 S.W.2d 956, 1988 Mo. App. LEXIS 907, 1988 WL 66584, Counsel Stack Legal Research, https://law.counselstack.com/opinion/moran-v-flach-moctapp-1988.