Hess v. Blacksher

116 S.W.3d 708 (2003)

Timothy G. HESS, Plaintiff/Respondent, v. John BLACKSHER and C. Diane Blacksher, Defendants/Appellants.

No. ED 82153.

Missouri Court of Appeals, Eastern District, Division One.

September 16, 2003.

George Michael Archer, Hillsboro, MO, for Appellant.

Kurt D. Breeze, Festus, MO, for Respondent.

Before GARY M. GAERTNER, SR., P.J. and ROBERT G. DOWD, JR. and MARY R. RUSSELL, JJ.

PER CURIAM.

This case arises out of a suit for breach of contract brought by Timothy G. Hess (Plaintiff) against John and C. Diane Blacksher (collectively referred to as Defendants) for alleged nondisclosure of a water well agreement and absence of a well on Plaintiff's property. After a bench trial, the trial court entered judgment in favor of Plaintiff and against Defendants in the amount of $7,710. Defendants raise two points on appeal. Defendants argue the trial court erred in: 1) denying their motion to dismiss because Plaintiff failed to state a cause of action under the contract as the contract merged into the subsequent deed, and 2) entering judgment in favor of Plaintiff because there was no evidence that Defendants fraudulently misrepresented the fact the shared well system was on Plaintiff's property. The court's denial of either "a motion to dismiss or a motion for summary judgment is not a final judgment and is not reviewable." Lesinski v. Joseph P. Caulfield & Assoc., Inc., 12 S.W.3d 394, 396 (Mo.App. E.D.2000). Therefore, Defendants' first point requesting us to review the denial of the motion to dismiss is improperly before this court. We affirm.

We have reviewed the briefs of the parties and the record on appeal and find the claims of error to be without merit. An opinion would have no precedential value nor serve any jurisprudential purpose. The parties have been furnished with a memorandum for their information only, setting forth the reasons for this order pursuant to Rule 84.16(b).