Developers Surety and Indemnity Company v. Woods of Somerset, LLC. , 2015 Mo. App. LEXIS 211 ( 2015 )

IN THE MISSOURI COURT OF APPEALS
WESTERN DISTRICT
DEVELOPERS SURETY AND INDEMNITY )
COMPANY, )
)
Respondent, )
)
v. ) WD77792
)
WOODS OF SOMERSET, LLC, ET AL., ) Opinion filed: March 3, 2015
)
Appellant. )
APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY, MISSOURI
The Honorable James F. Kanatzer, Judge
Before Division Two: Anthony Rex Gabbert, Presiding, Judge,
Joseph M. Ellis, Judge and Karen King Mitchell, Judge
This case arises from claims brought by Developers Surety and Indemnity
Company ("DSI") against Daniel Waldberg, Brenda Waldberg, Barney Ashner, Marlene
Ashner, and Woods of Somerset, LLC ("Appellants") related to an indemnity agreement
Appellants executed in order to obtain a payment bond from DSI for the development of
a subdivision. After an excavation company filed suit seeking payment for work that
had been performed at the subdivision, DSI filed cross-claims and third-party claims
against Appellants based upon the indemnity agreement, asserting that DSI was
entitled to indemnification and specific performance of the indemnity agreement.
The trial court eventually entered judgment in favor of the Appellants on DSI’s
claims, concluding that the indemnity agreement was unenforceable because it was not
properly executed and because there was no meeting of the minds. On appeal, this
Court held that the indemnity agreement was unambiguous, valid, and enforceable.
Accordingly, we reversed the judgment, and the cause was remanded to the trial court
for entry of judgment in favor of DSI. Woods of Somerset, LLC v. Developers Sur. &
Indem. Co., 422 S.W.3d 330, 336 (Mo. App. W.D. 2013).
Shortly after our mandate was issued, on April 1, 2014, the trial court entered its
Amended Judgment that simply stated:
Pursuant to the opinion issued in Case Number WD75533 and
WD75534, judgment is hereby ordered in favor of Developers Surety and
Indemnity Company.
IT IS SO ORDERED.
On April 23, 2014, DSI filed its Motion to Amend the Judgment, asking the trial court to
amend its judgment to specify how much DSI was entitled to collect from Appellants.
On June 25, 2014, the trial court entered its Second Amended Judgment in favor
of DSI and against Appellants, awarding $57,000.00 in damages and $144,000.00 in
attorneys’ fees and costs. The Appellants bring four points on appeal.
In their first point, Appellants contend that the trial court lacked any authority to
enter its Second Amended Judgment because it was filed beyond the thirty days
provided for in Rule 75.01. They argue that DSI’s motion to amend was not an
“authorized after-trial motion” that would serve to extend that time period.
“The trial court’s authority to enter amended judgments is a question of law which
we review de novo.” State ex rel. Missouri Parks Ass’n v. Missouri Dep’t of Nat.
Res., 316 S.W.3d 375, 381 (Mo. App. W.D. 2010). “Rule 75.01 provides that a trial
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court retains control over its judgment during the thirty day period after it is entered ‘and
may, after giving the parties an opportunity to be heard and for good cause, vacate,
reopen, correct, amend, or modify its judgment within that time.’” In re Marriage of
Noles, 343 S.W.3d 2, 6 (Mo. App. S.D. 2011). “If no authorized after-trial motion is filed
within that time period, the judgment becomes final thirty days after entry of the
judgment.” Payne v. Markeson, 414 S.W.3d 530, 536 (Mo. App. W.D. 2013). If a party
timely files an authorized after-trial motion,1 however, “Rule 81.05(a)(2)(A) permits the
trial court up to ninety days from the date the motion was filed to rule upon the motion,
after which the motion is deemed denied under Rule 78.06.” In re Marriage of Noles,
343 S.W.3d at 6 (internal quotation omitted). This continued authority is limited to
remediating matters raised in the motion. Id.
Contrary to Appellants’ assertion on appeal, “[a] motion to amend, if filed within
thirty days after judgment is entered, is an authorized after-trial motion that extends the
circuit court’s control over its judgment for up to 90 days from the date the motion was
filed.” Hanna v. Hanna, 446 S.W.3d 753, 755 (Mo. App. W.D. 2014); Medlin v. RLC,
Inc., 423 S.W.3d 276, 283 (Mo. App. S.D. 2014); see also Payne, 414 S.W.3d at 538
(“A ‘motion to amend’ filed pursuant to Rule 78.04 is an authorized after-trial motion.”);
Dudley v. Southern Union Co., 261 S.W.3d 598, 601 (Mo. App. W.D. 2008) (“A motion
to amend the judgment is an authorized post-trial motion.”); Buron v. Klaus, 2014 WL
535781, at *2-3 (Mo. App. E.D. 2014) (noting that the Missouri Supreme Court has
recognized that a motion to amend the judgment pursuant to Rule 78.04 is one of six
“authorized after-trial motions” expressly provided for in the rules); Glandon v.
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“[A]n ‘authorized after-trial motion’ is a motion for which the rules expressly provide.” Taylor v. United
Parcel Serv., Inc., 854 S.W.2d 390, 392 n.1 (Mo. 1993); see also Glandon v. DaimlerChrysler Corp.,
142 S.W.3d 174, 177 (Mo. App. E.D. 2004).
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DaimlerChrysler Corp., 142 S.W.3d 174, 177 (Mo. App. E.D. 2004) (citing Taylor v.
United Parcel Serv., Inc., 854 S.W.2d 390, 392 n.1 (Mo. banc 1993)).
Appellants’ contention that DSI’s motion cannot be deemed an “after-trial motion”
because it was filed on remand following appeal, rather than immediately after trial, is
wholly without merit. The trial court’s initial judgment having been reversed, the first
amended judgment was the judgment in this case. Rule 78.04 affords a party thirty
days from the entry of judgment to file a motion to amend. Payne, 414 S.W.3d at 536.
Under Rule 78.04, it does not matter how long after trial the trial court enters judgment,
merely that the motion to amend be filed within thirty days of the entry of the judgment.
The purpose of the rule is to allow a party to point out errors or deficiencies in the
current judgment and to afford the trial court an opportunity to correct the judgment
through amendment. Appellant’s motion to amend the first amended judgment was,
most certainly, an authorized, timely-filed, after-trial motion upon which the trial court
had ninety days to act. Point denied.
In their second point, Appellants claim that the trial court erred in awarding any
attorney’s fees to DSI because this Court’s mandate did not reference attorney’s fees
and only allowed for an award of costs on appeal. Similarly, in their third point,
Appellants contend that the trial court erred in awarding DSI reimbursement for the
settlement amount paid to the excavation company because the mandate did not
specify that DSI should be awarded reimbursement for such amounts and only provided
for an award of costs on appeal. Appellants argue that this Court’s mandate was
specific, rather than general, and that, pursuant to this Court’s opinion and mandate, the
trial court could only declare that judgment was being entered in favor of DSI and could
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not award DSI anything other than costs on appeal, which were specifically awarded by
this Court to DSI in our mandate.
“The scope of the trial court’s authority on remand is defined by our mandate,”
and “[t]he trial court must render judgment in accord with our mandate and opinion.”
Gerken v. Sherman, 351 S.W.3d 1, 6 (Mo. App. W.D. 2011). “The mandate
communicates the judgment to the trial court, and the opinion, which is a part thereof,
serves in an interpretative function.” Id. (internal quotation omitted). “Thus, when
determining its authority on remand, the trial court should be guided not only by the
mandate, but also by the opinion and result contemplated by the appellate court.”
Jenkins v. Jenkins, 406 S.W.3d 919, 924 (Mo. App. W.D. 2013) (internal quotation
omitted). “Whether the trial court followed the mandate is a question [of law] we review
de novo.” Gerken, 351 S.W.3d at 6.
“A remand may be one of two types: (1) a general remand, which does not
provide specific direction and leaves all issues open to consideration in the new trial;
and (2) a remand with directions, which requires the trial court to enter a judgment in
conformity with the mandate.” Id. “A general remand leaves all issues not conclusively
decided open for consideration at the new trial.” Abt v. Mississippi Lime Co., 420
S.W.3d 689, 697 (Mo. App. E.D. 2014) (emphasis omitted). “On the other hand, where
the mandate contains express instructions that direct the trial court to take a specified
action, the court has no authority to deviate from those instructions.” Id. Any act by the
trial court that diverges from those instructions is void. Gerken, 351 S.W.3d at 6.
In our prior opinion, after holding that the trial court erred as a matter of law by
concluding that the indemnity agreement was invalid, this Court declared, “The
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judgment of the trial court is reversed, and the cause is remanded for entry of judgment
in favor of DSI.” Woods of Somerset, 422 S.W.3d at 336. Our mandate, which was
subsequently issued by the Clerk of this Court states, in its entirety:
Now on this day the judgment is reversed, and the cause is
remanded to the Circuit Court of Jackson County for further proceedings
in conformity with the opinion of this Court. The Appellant shall recover
against the Respondents the costs and charges herein expended, and
shall have execution therefor.
Opinion filed.
Appellants argue that, based upon the foregoing language from the mandate and the
opinion, the trial court could do no more than declare that it was entering judgment in
favor of DSI, as it did in its first amended judgment, and to award DSI its costs on
appeal. They contend that, because “costs” do not include attorney’s fees under
Missouri case law, the trial court’s award of attorney’s fees improperly exceeded the
scope of the mandate. They further claim that any award for reimbursement of
settlement costs exceeded the scope of the mandate because they were not specifically
mentioned therein.
Our mandate, reversing and remanding for further proceedings consistent with
the opinion, is decidedly general. The opinion itself, however, contains a specific
instruction that the trial court should enter judgment in favor of DSI. However, even
assuming, arguendo, that the instruction for entry of judgment in our opinion rendered
our mandate a specific one, on the record before us, we cannot conclude that the trial
court’s final judgment deviated from our instruction or otherwise failed to conform to our
mandate.
The phrase “for entry of judgment in favor of DSI,” contained in this Court’s prior
opinion, can only be understood in the context of the claims brought and the relief
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requested in DSI’s petition in the underlying action. In our opinion, we generally note
that DSI’s petition asserted claims for indemnity and specific performance, and we
subsequently held that DSI was entitled to judgment in its favor. Id. at 333, 336. Thus,
our opinion clearly contemplated the entry of a judgment in favor of DSI awarding some
amount of indemnity and/or declaring rights and ordering specific performance of the
indemnity agreement.
Whether the trial court’s judgment exceeded the scope of indemnity and/or
specific performance requested in the petition cannot be assessed by this Court on
appeal because a copy of the petition has not been included in the record on appeal for
our review. Accordingly, this Court cannot determine whether DSI’s petition raised
claims that would allow for reimbursement of attorney’s fees and/or a declaration that
DSI is entitled to indemnity for attorney’s fees from Appellants. Likewise, we cannot
know if DSI requested relief that would include indemnification for settlement costs and
expenses and/or a declaration that DSI is entitled to indemnification by Appellants for
such costs.
“This court’s review is based only on the record on appeal.” Wagner v. Bondex
Int’l, Inc., 368 S.W.3d 340, 357 (Mo. App. W.D. 2012) (internal quotation omitted).
“Appellants bear the burden of supplying the appellate court with the record on appeal,
and that record should contain ‘all of the record, proceedings and evidence necessary
to the determination of all questions to be presented, by either appellant or respondent,
to the appellate court for decision.’” Belden v. Belden, 389 S.W.3d 717, 720 n.3 (Mo.
App. S.D. 2012) (quoting Rule 81.12(a) and citing Rule 81.12(c)). Where necessary
materials are omitted from the record on appeal, the appellate court will assume that the
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omitted items were unfavorable to the appellant and favorable to the respondent. Id.
Accordingly, in the case at bar, this Court must assume that the relief granted by the
trial court fell within the scope of the relief requested in DSI’s petition.
In short, this Court’s instructions on remand clearly allowed for the entry of
judgment in favor of DSI on its claims for indemnity and/or specific performance, and
the record before this Court does not establish that the trial court deviated from or acted
contrary to this Court’s instructions. Points denied.
In their final point on appeal, Appellants assert that the trial court erred in
including in its judgment attorney’s fees incurred by DSI in bringing the original appeal
because DSI did not file a Rule XXIX2 motion for such fees with this Court prior to
submission of that appeal and because our opinion did not specifically award such fees.
In bringing this point, Appellants fail to even establish that the trial court awarded any
attorney’s fees for appellate work, let alone that it erroneously did so.
The judgment in this case simply awarded DSI $144,000.00 “for attorneys’ fees
and costs.” Thus, it is not readily apparent from the judgment that any of that award
was for appellate attorney’s fees as opposed to those incurred trying the case at the
circuit court level.
Appellants fail to cite to anything in the record establishing that the attorney’s
fees awarded by the trial court included any amount for work done on appeal.
Furthermore, Appellants fail to indicate in their point relied on or the argument in support
thereof how much of the award they believe to have been for attorney’s fees on appeal
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Rule XXIX of the Special Rules of the Western District Court of Appeals provides that “[a]ny party
claiming an amount due for attorney’s fees on appeal pursuant to contract, statute or otherwise and which
this Court has jurisdiction to consider, must file a separate written motion before submission of the case.”
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or to provide an explanation of the basis for their belief that appellate attorney’s fees
were included in the award.
Having failed to establish that the trial court even committed the act about which
they complain, Appellants most certainly cannot establish reversible error. Point
denied.
Finally, pursuant to Local Rule XXIX, Respondent has moved for an award of
attorney fees and expenses incurred in this appeal. “With respect to attorney fees on
appeal, a party may be allowed to recover these fees if they are based upon a written
agreement that is the subject of the issues that are presented in the appeal.” Cowbell,
LLC v. BORC Bldg. & Leasing Corp., 328 S.W.3d 399, 407 (Mo. App. W.D. 2010)
(internal quotation omitted). In accordance with the indemnity agreement between the
parties, Respondent is entitled to its attorney’s fees and expenses on appeal.
Consequently, Respondent’s motion is granted.
“While we have the authority to award attorney fees on appeal, we exercise this
power with caution.” Id. at 407-08 (internal quotation omitted). “The trial court is better
equipped to hear evidence and argument on the issue of attorney’s fees incurred on
appeal.” Baker v. Department of Mental Health, 408 S.W.3d 228, 243 (Mo. App. W.D.
2013). We, therefore, remand the cause to the trial court for the purpose of conducting
a hearing to determine and award Respondent’s reasonable fees and expenses
incurred in connection with this appeal.
For the foregoing reasons, the trial court’s judgment is affirmed. Because
Respondent’s motion for attorney’s fees and expenses on appeal is granted, the cause
is remanded to the trial court for further proceedings related to that motion.
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________________________________
Joseph M. Ellis, Judge
All concur.
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