Church of God in Christ Congregational of Missouri v. Secured Housing, Inc.

GARY M. GAERTNER, Presiding Judge. Appellant, Church of God in Christ Congregational of Missouri, (“appellant”), appeals the judgment entered by the Circuit Court of St. Louis County, granting a motion for summary judgment in favor of the respondent, Secured Housing, Inc., (“respondent”). We dismiss for lack of jurisdiction.1 Appellant is a Missouri not-for-profit corporation originally incorporated in 1965. Respondent is a Missouri corporation formed for the purpose of developing a private prison facility in the St. Louis area. The underlying action involves a sale of real estate located at 6600 Ridge Avenue in Wellston, Missouri. Appellant acquired the property in question in 1991. Respondent claims that it entered into a sale contract to purchase the property on August 25, 1994, with appellant and closed on the property on October 6,1997. On October 9, 1998, appellant filed a three-count petition. In count I, appellant petitioned to quiet title against respondent. Counts II and III were addressed to another defendant, Stanley Newsome, for conversion, and money had and received.2 2. Stanley Newsome took part in the negotiation and sale of the property. [57] Counts II and III are still pending in the trial court. On December 11, 1998, respondent filed its answer, affirmative defenses and counterclaims in response to appellant’s suit to quiet title. On January 11, 1999, respondent filed its motion for summary judgment as to count I. On June 25, 1999, the trial court granted respondent’s motion for summary judgment as to Count I. On March 23, 2000, Church of God in Christ Congregation, a/kfa Church of God in Christ Congregation of Missouri (“inter-venor”), filed a motion to intervene. In-tervenor claimed that it is the real party in interest and not the appellant. In addition, intervenor prayed the trial court to allow it to file its declaratory judgment action, which was attached and made part of the motion to intervene.3 On March 29, 2000, respondent filed a motion to make order and judgment final. On April 17, 2000, the trial court granted intervenor’s motion to intervene and denominated it as a party defendant. On May 4, 2000, the trial court granted respondent’s motion to make the order and judgment final pursuant to rule 74.01(b). Appellant appealed. While this case was on appeal, respondent dismissed its counterclaims against appellant, which were pending before the trial court. Appellant raises two points on appeal. It argues the trial court erred: 1) in granting respondent’s motion for summary judgment; and 2) in issuing its order determining that this matter was final for purposes of appeal. Since the second point is dispositive, we will only address it. “Parties may only appeal from a final judgment, meaning one that disposes of all claims and parties leaving nothing for further determination.” Spectrum Cleaning Services v. Blalack, 990 S.W.2d 656, 658 (Mo.App. E.D.1999). Appellate courts must dismiss an appeal for lack of jurisdiction, if the trial court’s judgment is not final. Id. However, “Rule 74.01(b) provides an exception to the finality rule for cases involving multiple claims, allowing the trial court to enter judgment on less than all claims and certify that there is no just reason for delay.” Id. Nevertheless, the trial court’s designation of an order and judgment as final and appeal-able, is not conclusive and is fully reviewable on appeal. Id. “The decision about whether and when to sustain a Rule 74.01(b) motion is a matter of discretion with the trial court.” Magna Bank of Madison Cty. v. W.P. Foods, 926 S.W.2d 157, 160 (Mo.App. E.D. 1996). A four-factor test is applied when determining whether the certification of a judgment under Rule 74.01(b) is proper: “(1) whether the action remains pending in the trial court as to all parties; (2) whether similar relief can be awarded in each separate count; (3) whether determination of the claims pending in the trial court would moot the claim being appealed; and (4) whether the factual underpinnings of all the claims are intertwined.” Nooney v. NationsBank, N.A., 996 S.W.2d 783, 787-788 (Mo.App. E.D.1999). After reviewing the record of the case at bar with regard to these factors, we conclude the trial court abused its discretion in granting respondent’s motion to make order and judgment final pursuant to Rule 74.01(b). We find that a determination of the declaratory judgment action pending before the trial court could possibly moot this appeal, if intervenor prevails in the trial court below. Intervenor was allowed to intervene and to file a declaratory judgment action. In the motion to intervene and to file a declaratory judgment action, which was granted by the trial court, intervenor alleged that appellant is not a real party in interest in the property in question. Intervenor claims to be the real party in interest both as to the [58] sale of the real property and the proceeds therefrom. If intervenor prevails in the declaratory judgment action, then this appeal will be rendered moot. Moreover, prior to granting respondent’s motion, the trial court was aware of respondent’s counterclaims against appellant, which were subsequently dismissed by respondent, while this case was on appeal. Thus, the trial court abused it discretion in granting respondent’s motion to make order and judgment final pursuant to Rule 74.0103). Based on the foregoing, we dismiss the appeal for lack of jurisdiction. CRAHAN, J., concurs. DRAPER, J., dissents in separate opinion. Footnotes [1] Respondent's motion to dismiss appellant’s appeal is hereby denied. [3] On May 15, 2000, appellant filed its answer, affirmative defenses, and counterclaims. Appellant alleged that intervenor was not incorporated with the state of Missouri until March 25, 1998. In addition, appellant claimed that intervenor was not a real party in interest. [2] The relevant portion of the resolution by the Board reads: RESOLVED, that Stanley Newsome is to represent the Corporation in the negotiation and if a sale is made the closing of the sale of property at 6600 Ridge Avenue, St. Louis, MO 63133 (legal description to follow) to Secured Housing, Inc. and be it that this resolution be hereby fully ratified and approved.