State ex rel. Fugate v. Anderson

884 S.W.2d 77, 1994 Mo. App. LEXIS 1280, 1994 WL 400247
CourtMissouri Court of Appeals
DecidedAugust 3, 1994
DocketNo. 19481
StatusPublished

This text of 884 S.W.2d 77 (State ex rel. Fugate v. Anderson) 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
State ex rel. Fugate v. Anderson, 884 S.W.2d 77, 1994 Mo. App. LEXIS 1280, 1994 WL 400247 (Mo. Ct. App. 1994).

Opinion

ORIGINAL PROCEEDING IN PROHIBITION

MONTGOMERY, Judge.

This is an original proceeding in prohibition. Relators seek to prohibit Respondent from taking any action to enforce an order entered April 11, 1994, alleged to be void because it altered or changed a final judgment entered October 18, 1993. We determine that our preliminary order issued April 14, 1994, should be made permanent.

In the underlying ease, Relator Lora Mae Fugate is the plaintiff in a partition suit instituted against defendant Orvil R. Whitehead in the Circuit Court of Greene County.1 Relator Patricia J. Shilling is Fugate’s attorney in that action.

From the allegations of the petition for the writ, Respondent’s answer, and Relators’ reply, the facts appear to be undisputed. The following are the significant events:

May 15, 1992 Fugate filed a two-count petition requesting partition of certain real property in Greene County, Missouri, and of five certificates of deposit and a checking account.

December 22, 1992 The personal representative of the Whitehead estate (hereafter called the Whitehead estate) was allowed to intervene and file a “Motion for Constructive Trust.”

June 28, 1993 Trial was held on both the partition request and on intervenor’s motion.

July 14,1993 By letter, Respondent notified all parties of the court’s findings regarding the partition action and overruled intervenor’s Motion for Constructive Trust for lack of evidence.2

July 30, 1993 An interlocutory judgment was entered in the underlying case ordering sale of one tract of real estate. As to the personal property, the trial court determined that four certificates of deposit (one certificate of deposit no longer existed) and the checking account could be partitioned in kind and ordered that the personal property be equally divided between the parties.

October 4, 1993 A money judgment was entered in favor of the Whitehead estate against Fugate in the Probate Division of the Circuit Court of Greene County in Case No. CV292-553.

October 6, 1993 An Assignment of Judgment was filed in the underlying case wherein Fugate assigned to Dean Rodgers the sum of $28,000 out of “that certain judgment ... rendered on the 30th day of July, 1993.... ” The assignment further recited that an execution on the assigned portion of the judgment “may [79]*79issue in the name of [Fugate] to be used for the benefit of [Rodgers] in accordance with the terms of this assignment.”

October 7, 8, 12, 1993 Based on the judgment in Case No. CV292-553, garnishments were issued by the Whitehead estate, garnishing sums due Fugate, naming the Respondent, the circuit clerk, and the respective banks as garnishees.

October 8,1993 After a court order to do so, Orvil R. Whitehead delivered the four certificates of deposit to the circuit clerk who gave him a receipt stating the certificates of deposit “will be kept in the Clerk’s safe until further court order.”

October 18,1993 A judgment was entered in the underlying case approving the sheriffs report on the sale of real estate, ordering the sheriff to execute a deed to the purchaser and to disburse the sale proceeds of $24,750 in the manner described in the judgment. The judgment further incorporated by reference the terms of the July 30, 1993, judgment relating to the equal partition in kind of the personal property, and further affirmed and ratified those terms of said judgment.

December 23, 1993 The court sustained Or-vil R. Whitehead’s motion for an order directing the circuit clerk to deliver the certificates of deposit to the Bank of Ash Grove and Commerce Bank, the issuing banks. The order recited that “Orvil R. Whitehead shall be entitled to receive one-half of all proceeds” but that Fu-gate’s “one-half of the proceeds ... shall be paid to the Circuit Clerk ... to be held until the rights and interests thereto may be determined.”

February 4, 1994 In Case No. CV292-553, an order was entered quashing the garnishments of October 7, 8, and 12, 1993. On that day, the circuit clerk delivered the four certificates of deposit to Fugate who obtained $13,444.92 by cashing the two certificates of deposit issued by Commerce Bank.3

February 24, 1994 Orvil R. Whitehead filed a motion to compel Fugate and Shilling to return the money obtained on February 4, 1994.

April 11, 1994 After an earlier hearing, Respondent entered an order directing Fu-gate and Shilling to return to the circuit clerk all proceeds received by either of them from the Commerce Bank certificates of deposit.

Relators contend Respondent exceeded his authority by entering the order of April 11, 1994, because the judgment of October 18, 1993, was a final judgment. Relators claim that judgment disposed of all issues between all parties and that after November 17, 1993, Respondent lost jurisdiction to modify, alter, or amend the judgment.

The first question is whether the judgment of October 18, 1993, was a final judgment. “A final judgment is one that disposes of all parties and all issues, leaving nothing for future determination.” Sinopole v. Morris, 735 S.W.2d 194, 195 (Mo.App.1987). Specifically, “[t]he final judgment in a partition suit where a sale of the land is ordered is the order approving the sale and providing for the distribution of the sale pro ceeds.” First Nat’l Bank of Carrollton v. Eucalyptus, 721 S.W.2d 165, 167 (Mo.App.1986).

Partition of personal property follows, as nearly as possible, the same procedure as that utilized in the partition of land. Rule 96.32.4 When land is ordered partitioned in kind, the final judgment takes place when the commissioners’ report is confirmed and judgment is ordered thereon. Rule 96.16.

From the foregoing principles we determine that the October 18, 1993, judgment was final in nature. The judgment disposed of the partition issues between Fugate and [80]*80Orvil R. Whitehead and disposed of the inter-venor’s claim by denying it. Thus, all claims raised between the three parties were fully adjudicated, and nothing was left for future determination by the court. In particular, the judgment fully adjudicated the rights of Fugate and Orvil R. Whitehead in the certificates of deposit and checking account by dividing the assets equally between them.5

Contrary to Respondent’s assertions, neither the Whitehead estate nor Dean Rodgers were adverse claimants to Fugate’s share of the partition proceeds in a sense that would cause the judgment to lack finality. In the first place, Rodgers was not a party to the suit. Therefore, the court had no claim to adjudicate involving him. Secondly, Respondent cites no authority, and we find none, indicating that a partial assignment of a judgment is an unadjudicated claim which affects the finality of the judgment.

Unquestionably, the denial of the claim asserted by the Whitehead estate was an adjudication of the constructive trust issue. After that adjudication, no other issue remained in the case involving the Whitehead estate.

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Bluebook (online)
884 S.W.2d 77, 1994 Mo. App. LEXIS 1280, 1994 WL 400247, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-fugate-v-anderson-moctapp-1994.