Neal v. Neal

FLANIGAN, Presiding Judge,

dissenting.

I respectfully dissent.

This action involves multiple claims and multiple parties. The petition is in five counts. Count I requests dissolution of the marriage. Counts II, III, IV, and V are all directed against the two defendants individually and as trustees. It is unnecessary to discuss a possible misjoinder of parties because, as Rule 52.06 states, “Misjoinder of parties is not ground for dismissal of an action.” It is also unnecessary to determine whether the petition was subject to the defense “that several claims have been improperly united,” Rule 55.27(a)(ll), because such a defense, whether or not available here, was waived because it was not raised by motion or in the answer. Rule 55.27(g)(1).

The petition, with respect to Counts II, III, IV, and V, requested that the court find the Julia First Trust to be void, declare a resulting trust in favor of plaintiff, establish a constructive trust for the benefit of the plaintiff, set aside deeds from the trustees to themselves individually, terminate the trust or remove the trustees and appoint plaintiff as the trustee of the trust corpus, quiet the title to certain real estate, enter a declaratory judgment as to the rights of the plaintiff “with regard to the Julia First Trust,” and for other relief. A review of the lengthy petition does not show that the various claims for relief were unsupported by appropriate allegations constituting a claim.

The so-called “decree of dissolution,” on which the instant appeal is based, makes no mention of Counts II, III, IV, and V, nor does it mention defendant Bruce Douglas Eckart, either in his individual capacity or as trustee.

The “decree of dissolution” did not contain “an express determination that there is no just reason for delay. In the absence of such determination, any order or other form of decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.” Rule 74.01(b). (Emphasis added.)

My comparison of the decree with the pleadings leads me to the conclusion that the trial court adjudicated “fewer than all the claims or the rights and liabilities of fewer than all the parties.” I would dismiss the appeal for lack of a final judgment.