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08/17/93 ALVIS MICHAEL BOILLOT v. FREDA PAULINE

August 17, 1993

ALVIS MICHAEL BOILLOT, GUARDIAN OF THE PERSON AND CONSERVATOR OF THE ESTATE OF EMMA P. KING, PLAINTIFF/RESPONDENT,
v.
FREDA PAULINE CONYER, DEFENDANT/APPELLANT.



Appeal from the Circuit Court of Madison County. Hon. Kenneth W. Pratte.

Lawrence G. Crahan, Judge.

The opinion of the court was delivered by: Crahan

Defendant Freda Pauline Conyer ("Daughter") appeals from the trial court's order denying her motion to enforce a consent judgment previously affirmed by this court and denying her motion to strike Plaintiff Alvis Michael Boillot's ("Guardian's") motion to set aside the judgment. We reverse the order of the trial court and remand for entry of judgment in accordance with this opinion.

This is a continuation of a case previously before this court on appeal. *fn1 The original proceeding involved a settlement that Emma King ("Mother") entered into with Daughter terminating a suit concerning real estate they owned as joint tenants. As part of the consent judgment entered by the court on March 12, 1991, Mother agreed to execute a deed conveying her interest in the property to Daughter, while reserving a life estate for herself. Thereafter, on April 4, 1991, Mother challenged the consent decree claiming she did not consent to the settlement or have the mental capacity to do so. The trial court denied Mother's motion to set aside the judgment and Mother filed a notice of appeal to this court.

While this appeal was pending, the probate division of the circuit court of Madison County appointed Boillot guardian of the person and conservator of the estate of Mother. Boillot, as guardian, was substituted as the plaintiff on appeal. On March 10, 1992, after considering Guardian's claims, this court affirmed the trial court's denial of the motion to set aside the judgment and ordered that the consent judgment stand in full force and effect.

On April 21, 1992, Daughter filed a motion to enforce the consent judgment and for sanctions. In the motion, Daughter alleged that she had prepared and forwarded to Mother an appropriate deed for conveyance and that Mother refused to execute it as required by the judgment. Daughter requested that the court enforce the judgment pursuant to Rule 74.07.

Thereafter, on May 13, 1992, Guardian again filed a motion to set aside the judgment pursuant to Rule 74.06. As amended, this motion alleged that the consent judgment was "void" and that it was "no longer equitable that it remain in force" because Mother was incompetent at the time the judgment was rendered and did not understand the nature of the judgment by reason of physical and mental limitations. In response, Daughter filed a motion to strike this pleading asserting that the issues raised in this motion had already been decided on appeal.

Hearings were held on Daughter's pending motions on May 21, 1992, and July 16, 1992. Thereafter, the court entered an order denying Daughter's motion to enforce the judgment and for sanctions, as well as her motion to strike Guardian's pleading. *fn2 Pursuant to Rule 74.01(b), the court further declared that its order was final and that there was no just reason for delay.

Before addressing the merits of this appeal, we are obliged to consider sua sponte whether the trial court's certification of the judgment pursuant to Rule 74.01(b) is sufficient to vest this court with jurisdiction over the issues Daughter seeks to raise on appeal. In her brief, Daughter seeks review of both the trial court's dismissal of her motion to enforce the judgment and its dismissal of her motion to strike Guardian's motion to set aside the judgment. Despite the trial court's certification, the latter order is not a judgment because it does not adjudicate Guardian's claim for relief. Rather, construing Daughter's motion to strike as a motion to dismiss for lack of jurisdiction, the trial court overruled the motion and thus apparently determined that it had jurisdiction to adjudicate Guardian's claim.

Rule 74.01(a) defines a "judgment" as "a decree and any order from which an appeal lies." A determination that a court has jurisdiction is not an appealable order and instead is properly reviewable by an extraordinary writ. See State ex rel. Hamilton v. Dalton, 652 S.W.2d 237, 239 (Mo. App. 1983). Thus, to the extent that Daughter is seeking to appeal from the trial court's denial of her motion to strike, we hold that such order is not a final judgment and dismiss the appeal.

In contrast, the trial court's denial of Daughter's motion to enforce the judgment does appear to be an adjudication of Daughter's claim. Inasmuch as the trial court certified the order disposing of this claim in accordance with Rule 74.01(b), it apparently intended to permit an appeal from that portion of its order.

This is where the matter gets complicated. Based solely on the pleadings, it would appear that we cannot afford Daughter the relief she is seeking in the absence of an adjudication of Guardian's claim, which we have just determined not to have been adjudicated by the trial court's order. Daughter seeks an order requiring the trial court to enforce an order that Guardian claims is "void" and "no longer equitable that it remain in force." If Guardian is correct and he is entitled to the relief he is seeking, a determination that the judgment denying Daughter's motion should be reversed and remanded to the trial court with directions to enforce the judgment would effectively moot Guardian's claim by satisfaction of the judgment. Thus, the claims of Guardian and Daughter are irretrievably intertwined. Ordinarily, such circumstances would compel the Conclusion that Daughter's claim cannot properly be certified separately as a final appealable judgment. However, under the unique circumstances of this case, we have concluded that appellate review of the judgment with respect to Daughter's claim is appropriate.

This is where the matter gets even more complicated. Based on the opinion in Boillot I, we find that we have already adjudicated Guardian's claim. In that opinion, we expressly found that the original motion to set aside the judgment presented to the trial court and at issue in the appeal claimed that Mother "did not consent to the settlement or have the mental capacity to do so." Boillot I, 826 S.W.2d at 96-97. Although worded somewhat differently, this is precisely the issue Guardian now attempts to raise by alleging that Mother was "incompetent at the time the judgment was rendered," and "did not understand the nature of the judgment by reason of physical and mental limitations."

A decision by our court is the law of the case on all points raised and decided and our decision continues to govern throughout all subsequent proceedings both in the trial and the appellate courts. Southwestern Bell Telephone Co. v. Buie, 758 S.W.2d 157, 161 (Mo. App. 1988). No issue decided in the first appeal will be readdressed on the second. Id. Because the issue of Mother's competency to enter into the settlement was expressly at issue and determined adversely to Guardian in Boillot I, we ...


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