Teri McBee, Respondent, v. Gustaaf Vandecnocke Revocable Trust, Appellant.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Western District Case Style: Teri McBee, Respondent, v. Gustaaf Vandecnocke Revocable Trust, Appellant. Case Number: 54506 Handdown Date: 04/28/1998 Appeal From: Circuit Court of Saline County, Hon. Robert H. Ravenhill Counsel for Appellant: Elizabeth E. Parrigin and Daniel R. Dunham Counsel for Respondent: J. Kirk Rahm and Larry E. Tate Opinion Summary: The Gustaaf Vandecnocke Revocable Trust appeals from the judgment of the circuit court ordering, inter alia, specific performance of the real estate contract between the Trust and respondent Teri McBee for the sale of a 220-acre tract of land with a house and other buildings. On appeal, the appellant claims that: (1) the trial court erred in entering a judgment for the respondent, ordering specific performance of the parties' real estate contract, because it did not have jurisdiction to enter such judgment; (2) the trial court abused its discretion in ordering specific performance under the contract because the respondent failed to prove that she ever tendered performance of the contract; and, (3) the trial court abused its discretion by giving the respondent credit for the entire amount of insurance proceeds received by the appellant due to the loss as to the house against the purchase price of the real estate, because the doctrine of equitable conversion did not apply. DISMISSED. Division Three holds: This is a case where the respondent simply sued the wrong party, the trust, rather than the trustee, resulting in the failure to name an indispensable party. And because the respondent failed to name the trustee as a party to this action, she failed to join an indispensable party. Thus, the judgment entered by the trial court against the trust, regarding the title to the real estate, was void. Without a final judgment, this court lacks jurisdiction and the appeal must be dismissed. Citation:

Opinion Author: Edwin H. Smith, Judge Opinion Vote: AFFIRMED. Hanna, P.J., Stith J. concur Opinion: The Gustaaf Vandecnocke Revocable Trust appeals from the judgment of the Circuit Court of Saline County, ordering, inter alia, specific performance of the real estate contract between the appellant and Teri McBee, respondent, for the sale of a 220-acre tract of land on which was located a house and various other buildings. The appellant raises three points on appeal. In Point I, it claims that the trial court erred in entering a judgment for the respondent ordering specific performance of the parties' real estate contract, because it did not have jurisdiction to enter such judgment. In Point II, it claims that the trial court abused its discretion in ordering specific performance under the contract because the respondent failed to prove that she ever tendered performance of the contract. In Point III, it claims that the trial court abused its discretion by giving the respondent credit for the entire amount of insurance proceeds, received by the appellant due to the loss as to the house, against the purchase price of the real estate, because the doctrine of equitable conversion did not apply. We dismiss. Facts On February 14, 1995, Gustaaf Vandecnocke established the Gustaaf Vandecnocke Revocable Trust naming Robert Vandecnocke as trustee. He subsequently transferred to the trust a 500-acre farm in Howard County, Missouri. The farm consisted of three contiguous tracts, one of which contained 220 acres, various buildings, and a house. In the process of liquidating the trust's real estate holdings, the farm was to be sold as three separate tracts. For that purpose, an auction was scheduled for July 15, 1995. The auctioneer, Mark Belcher, asked Carlyle Foley, the trust's attorney, to announce to those in attendance the general terms of the contract. Mr. Foley announced that ten percent down was due on the day of the sale, with the balance due upon closing, preferably within thirty days. At trial, he testified that the contract, which he prepared, stated that the risk of loss or damage to the real estate would be assumed by the seller up to the date of closing. At the auction, the respondent bid $132,000 for the tract on which the house was located and signed a real estate contract for the same, paying ten percent as earnest money. The contract stated that the closing date was to be August 30, 1995. The respondent subsequently requested that the closing date be continued to September 1, 1995, which it was. However, the night before the closing date, the house burnt to the ground. On the morning of September 1, 1995, Mr.

Foley, the respondent and her husband met for the scheduled closing at Commercial Trust Company. However, the parties did not close on that day due to the confusion as to how they should proceed in light of the fire. On March 8, 1996, the respondent filed suit in the Circuit Court of Howard County, seeking, in Count I of her petition, specific performance of the real estate contract, a declaratory judgment that she was ready and willing to pay the balance of the sales price on September 1, 1995, that the reasonable replacement value of the house was $85,000, and that she was entitled to a credit for insurance proceeds paid because of the fire. In Count II, she sought damages for the loss of use of the real estate and for any uninsured loss resulting from the destruction of the house. In Count III, she sought damages for breach of contract. The respondent named "Gustaaf Vandecnocke Revocable Trust," as the defendant, and did not name the trustee. The respondent personally served Robert Vandecnocke. The case was judge tried on February 13, 1997, before the Honorable Robert H. Ravenhill. On June 2, 1997, judgment was entered in favor of the respondent ordering specific performance of the parties' real estate sales contract, with the respondent to pay the appellant $36,615, the balance due after credit was given for the insurance proceeds, reduced by attorney's fees of $10,000, rental value of $3,200, and government payments of $2,989. This appeal follows. I. In Point I, the appellant claims that the trial court erred in entering a judgment for the respondent ordering specific performance of the real estate contract between the parties because it did not have jurisdiction in that the respondent failed to join an indispensable party, specifically that she sued the trust and not the trustee. We agree. The issue of whether there has been a failure to join a necessary or indispensable party under Rule 52.04 is fundamental and jurisdictional and can be raised at any time, even on appeal. Rule 55.27(g)(2); Obaidullah v. Kabir, 882 S.W.2d 229, 230-31 (Mo. App. 1994); Feinberg v. Feinberg, 924 S.W.2d 328, 331 (Mo. App. 1996); Neal v. Drennan, 640 S.W.2d 132, 136 (Mo. App. 1982). If one who is not joined in the litigation would have the right to relitigate the question, an indispensable party question arises. Neal, 640 S.W.2d at 136-37. Here, the ultimate issue is the title to real estate, in that by ordering specific performance, the trial court was requiring the property in question to be deeded to the respondent. "When title to real estate is in question, all claimants of record title are indispensable parties." Id. at 137. It is well settled in Missouri that a trust is not a legal entity. Farris v. Boyke, 936 S.W.2d 197, 200 (Mo. App. 1996) (citing McDaniel Title Co. v. Lemons, 626 S.W.2d 686, 690 (Mo. App. 1981); Simmons v. Friday, 224 S.W.2d 90, 94 (Mo. 1949)). "The trustee is a legal owner of the trust property, in which the beneficiaries have equitable ownership." Id. Thus, the trustee in the case at bar, as record title holder of the disputed land, is an indispensable party. Neal, 640

S.W.2d at 136-37. The only judgment which could affect real estate belonging to a trust is one entered against the trustee, the legal owner of the property. Here, the trial court's judgment as to the real estate was against the trust, not the trustee. Thus, the judgment has no effect on the title of the property, in that it was not against the trustee, the title holder of record. The respondent first argues that the appellant waived its claim of a lack of jurisdiction by not raising the issue prior to appeal. However, as stated, supra, jurisdictional issues, such as failure to join an indispensable party, may be raised for the first time on appeal. Rule 55.27(g)(2); Obaidullah, 882 S.W.2d at 230-31. The respondent also argues that the filing of her suit against the trust, rather than the trustee, was not a failure to join an indispensable party, but rather merely a case of misnomer. We disagree. We recognize that there are cases which hold that a mistake in a party's name is not necessarily fatal to a judgment as a failure to join an indispensable party. Bailey v. Innovative Management & Inv., Inc., 890 S.W.2d 648, 651 (Mo. banc 1994) (citing Watson v. E.W. Bliss Co., 704 S.W.2d 667 (Mo. banc 1986)). However, it is important to distinguish between those cases where the mistake was in the party's name, who was made a party to the lawsuit, and those cases where the wrong party was sued. Id. This is not a case of misnomer where the respondent sought to sue the correct party, but merely used the wrong name. Instead, it is a case where the respondent simply sued the wrong party, the trust, rather than the trustee, resulting in the failure to name an indispensable party. And, because the respondent failed to name the trustee as a party to this action, she failed to join an indispensable party. Neal, 640 S.W.2d at 136-37. Thus, the judgment entered by the trial court against the trust, regarding the title to the real estate, was void. See Ward v. Bank Midwest, NA, 871 S.W.2d 649, 651 (Mo. App. 1994). Section 512.020, RSMo 1994, states that "[a]ny party to a suit aggrieved by any judgment of any trial court in any civil cause from which an appeal is not prohibited by the constitution, nor clearly limited in special statutory proceedings, may take his appeal to a court having appellate jurisdiction...." (Emphasis added.) Without a final judgment, this court lacks jurisdiction and the appeal must be dismissed (FN1). Boley v. Knowles, 905 S.W.2d 86, 88 (Mo. banc 1995). Conclusion The appeal is dismissed for lack of appellate jurisdiction. Footnotes: FN1.Although, given our disposition of this appeal, we need not decide the issue, we would note that the respondent not only failed to join the trustee as a party, but failed to join the beneficiaries of the trust as parties. Beneficiaries of the trust are generally necessary parties in suits involving trust property. Farris, 936 S.W.2d at 200. Separate Opinion:

None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.