DocketNumber: No. ED 105474
Citation Numbers: 549 S.W.3d 32
Judges: Odenwald
Filed Date: 4/17/2018
Status: Precedential
Modified Date: 1/21/2022
Introduction
Realty Associates Advisors, LLC and the Realty Associates Fund VII, L.P. (collectively, "Realty") appeal from the trial court's judgment awarding Johnson Controls, Inc. ("Johnson Controls") $608,936.48 on Johnson Controls's cross-claim seeking indemnification for its legal expenses. Johnson Controls sought recovery pursuant to an indemnity clause in a lease agreement ("the Lease Agreement") between *35Realty and Johnson Controls. Realty raises two points on appeal. In Point One, Realty contends that the trial court erred in awarding Johnson Controls damages because Realty did not owe a duty to indemnify Johnson Controls against the plaintiff's claims under the Lease Agreement. In Point Two, Realty argues that the trial court erred by including in its award of attorneys' fees to Johnson Controls those attorneys' fees incurred by Johnson Controls in enforcing its right to indemnity against Realty. Because Realty did not provide this Court with an adequate record from which we may properly consider Realty's liability for indemnity, we dismiss Realty's Point One. Because the Lease Agreement expressly authorized the trial court to award Johnson Controls those attorneys' fees it incurred as a result of enforcing its right to indemnity against Realty, we deny Point Two and affirm the trial court's judgment.
Factual and Procedural History
Allen J. Davis ("Davis") sued Realty, Johnson Controls, and Sandsone Group/DDR LLC and Sandsone Group, Inc. (collectively, "Sandsone"), seeking damages for personal injury after Davis slipped and fell at a property owned by Realty, leased by Johnson Controls, and managed by Sandsone.
15. Indemnity
...
B. [Realty] shall indemnify and hold [Johnson Controls] harmless from and against all Damages, which may be imposed upon or incurred by or asserted against [Johnson Controls] arising from [Realty's] use of or the condition of the Property, or from [Realty's] action or inaction taken thereto or thereon, or from the breach by [Realty] of any of its obligations hereunder, whether or not, in any case, attributable to [Realty] or [Realty's] employees, customers, agents, invitees, licensees, or guests (collectively, "[Realty's] Representatives"), provided, such Damages do not arise from the acts, omissions or the negligence of [Johnson Controls] or [Johnson Controls's] Representatives. In the event that any action or proceeding shall be brought against [Johnson Controls] by reason of any claim above referred to, [Realty], upon written notice from [Johnson Controls], shall at [Realty's] sole cost and expense defend the same, in which event, [Realty] may select the attorneys to be used[.]
Section 15(A) of the Lease Agreement included a similar provision requiring Johnson Controls to defend claims brought against Realty and to indemnify Realty from damages under certain conditions. Section 15(A) also defined "Damages" as "all liabilities, obligations, losses, damages, penalties, claims, actions, suits, costs, charges, and expenses, including attorneys' fees[.]"
Realty refused Johnson Controls's tender of the defense of Davis's claims and indemnification request. Johnson Controls and Realty then filed opposing cross-claims, each alleging that the other was obligated to defend and indemnify against Davis's claims under the Lease Agreement. Davis ultimately settled his claims *36with all of the defendants and dismissed his claims with prejudice. Upon the dismissal of Davis's claims, only the opposing cross-claims of Realty and Johnson Controls remained pending before the trial court.
Johnson Controls moved for partial summary judgment on its cross-claim, asking the trial court to establish Realty's liability for damages incurred by it as a result of Realty's failure to defend and indemnify against Davis's claims as required under the Lease Agreement. Johnson Controls reserved the issue of the amount of damages. The trial court granted partial summary judgment in favor of Johnson Controls, finding that Realty owed Johnson Controls a duty to defend and indemnify against Davis's claims. Realty similarly moved for summary judgment on its cross-claim seeking damages for Johnson Controls's failure to indemnify Realty. The trial court denied Realty's motion, and concluded that "the sole issue" remaining between Johnson Controls and Realty was the amount of Johnson Controls's damages.
Subsequently, Johnson Controls moved for an award of attorneys' fees and costs it incurred due to Realty's refusal to defend and indemnify it against Davis's claims. In its motion, Johnson Controls requested not only the attorneys' fees and costs expended in defending against Davis's suit, but also the attorneys' fees and costs Johnson Controls incurred in litigating its indemnification cross-claim against Realty. The trial court held an evidentiary hearing, received expert testimony on the issue of damages, and considered the exhibits submitted with Johnson Controls's motion. The trial court then awarded Johnson Controls $608,936.48 in attorneys' fees, costs, and other damages. This appeal follows.
Points on Appeal
Realty raises two points on appeal. Point One asserts that the trial court erred in awarding Johnson Controls damages because Realty was not obligated to indemnify Johnson Controls under the Lease Agreement; rather, Johnson Controls was obligated to indemnify Realty under the Lease Agreement. Point Two claims that the trial court erred when it included in its attorneys' fees award, those fees and costs incurred by Johnson Controls to establish its right to indemnity from Realty.
Discussion
I. Point One-Realty's Failure to Provide an Adequate Record
Realty's first point focuses on the trial court's finding that Realty was obligated to defend and indemnify Johnson Controls against Davis's lawsuit. Realty maintains that it was Johnson Controls not Realty, which owed a duty to indemnify against Davis's lawsuit under the Lease Agreement. Johnson Controls avers that the record on appeal filed by Realty prevents this Court from undertaking any meaningful appellate review of this point on appeal. Specifically, Johnson Controls claims that Realty did not include in the record on appeal the summary-judgment pleadings and evidence upon which the trial court relied in finding that Realty was obligated to indemnify Johnson Controls under the Lease Agreement. Johnson Controls maintains that, without the summary-judgment records, we cannot review the trial court's ruling on this point. We agree.
Appeals generally shall be taken in accordance with the rules of civil procedure relating to appeals. See Indep. Taxi Drivers Ass'n, LLC v. Metro. Taxicab Comm'n,
In the present case, the trial court resolved the issue of liability under the Lease Agreement after reviewing the competing motions for summary judgment filed by Johnson Controls and Realty. The docket sheet shows that the parties presented the trial court with competing motions for summary judgments, arguments in support, and statements of uncontroverted material facts with supporting exhibits. The docket sheet further reveals that the parties filed responses, replies, and sur-replies, as well as additional statements of uncontroverted material facts. In short, the record reflects that the trial court awarded Johnson Controls partial summary judgment after considering a wealth of summary-judgment evidence offered by the parties under Rule 74.04(c).
Critically, none of these filings or supporting evidence-despite forming the summary-judgment records and becoming the basis for the trial court's judgment-are properly before this Court. Why is this omission fatal to this point on appeal? Because "[f]acts come into a summary judgment record only via Rule 74.04(c)'s numbered-paragraphs-and-responses framework," Pemiscot Cty. Port Auth. v. Rail Switching Servs., Inc.,
As meaningfully expressed by the Southern District, "it remains Rule 74.04(c)'s precept that material facts be asserted, then admitted or denied, via separately-numbered paragraphs 'in order to clarify the areas of dispute and eliminate the need for the trial or appellate court to sift through the record to identify factual disputes.' " Id. at 533 (quoting Cross v. Drury Inns, Inc.,
The record on appeal does not contain the summary-judgment pleadings and evidence that guided the trial court's finding that Realty was liable for indemnification under the Lease Agreement.
Realty contends that this Court is able to ascertain the arguments of the parties and factual materials contained in the summary-judgment motions by examining the evidentiary-hearing transcript and the other filings included in the record on appeal. This position, however, contradicts the specific procedure demanded by Rule 74.04 for adjudicating summary-judgment motions. See Jones,
Without having before us the parties' submitted statements of uncontroverted facts, the responses thereto, and the attached supporting affidavits and exhibits, we cannot determine which facts were established through the parties' Rule 74.04(c) motions, or which facts were either admitted, contested, or refuted by the parties. Nor can we determine whether the trial court limited its review solely to the contents of our record on appeal when it found Realty liable to Johnson Controls for indemnification under the Lease Agreement. See Cain v. Richart,
Without the summary-judgment records, we lack the necessary information to review the trial court's judgment with any degree of confidence in the fairness, reasonableness, and accuracy of our result. If Realty desired appellate review of its liability under the Lease Agreement, then it needed to provide this Court with the summary-judgment records addressing that very issue.
The absence of the required summary-judgment records leaves this Court with nothing to evaluate.
II. Point Two-The Trial Court's Award Properly Included Attorneys' Fees and Costs Johnson Controls Incurred in Enforcing the Right to Indemnity
A. Standard of Review
In this point, Realty does not challenge the amount of the underlying damage award, but only the amount of attorneys' fees and costs awarded by the trial court. The amount of the attorneys' fees awarded lies within the trial court's sound discretion, and "[t]his determination will not be disturbed on appeal unless the amount awarded is arbitrarily arrived at or is so unreasonable as to indicate indifference and a lack of proper judicial consideration." Winghaven Residential Owners Ass'n v. Bridges,
B. Record on Appeal
Unlike Point One, an adequate legal record has been filed to allow our consideration of Point Two. After the trial court ruled that Realty owed Johnson Controls a duty to defend and indemnify under the Lease Agreement, Johnson Controls moved for its attorneys' fees and costs. In the record on appeal, Realty included Johnson Controls's cross-claim, Realty's answer, Johnson Controls's motion for attorneys'
*40fees with its attached exhibits, Realty's response, a transcript of the evidentiary hearing held by the trial court on the amount of attorneys' fees and costs, and the trial court's judgment. Because the record on appeal contained the materials used by the trial court to determine the attorneys' fees and costs to be awarded, we may review Point Two's merits.
C. No Trial-Court Error
Once liability on a contract has been determined, damages, in the form of attorneys' fees authorized by the contract, follow as a matter of law. State ex rel. Chase Resorts v. Campbell,
Regarding attorneys' fees, "Missouri courts adhere to the 'American Rule,' which provides that each litigant should bear his or her own expenses." St. Louis Title, LLC v. Talent Plus Consultants, LLC,
Johnson Controls points to the first exception to "the American Rule," maintaining that Section 15(B) of the Lease Agreement authorized the recovery of attorneys' fees accrued in litigating Realty's breach of its indemnity obligations. We note that Missouri courts generally do not interpret indemnity clauses to authorize recovery of attorneys' fees spent in a suit between the contractual parties for breaching the indemnity provision. See. e.g., Nusbaum v. City of Kansas City,
Here, Section 15(B) provides that Realty "shall indemnify and hold [Johnson Controls] harmless from and against all Damages ... arising from [Realty's] use of or the condition of the property, or from [Realty's] action or inaction taken thereto or thereon, or from the breach by [Realty]
*41of any of its obligations hereunder [.]" (emphasis added). The Lease Agreement defines "Damages" as "all liabilities, obligations, losses, damages, penalties, claims, actions, suits, costs, charges, and expenses, including attorneys' fees [.]" (emphasis added).
We are persuaded that the term "hereunder" encompasses all of the parties' obligations under the Lease Agreement. See, e.g., Util. Serv. & Maint., Inc. v. Noranda Aluminum, Inc.,
Indeed, Section 15(B)'s requirement that Realty indemnify Johnson Controls for legal expenses arising from Realty's breach of its indemnity obligations comports with recent Missouri case law in RJF International Corp. v. B.F. Goodrich Co.,
Subsequently, the Supreme Court of Missouri decided Nusbaum,
Realty's claim that Section 15(B) is analogous to the clause in Nusbaum is unavailing. In Nusbaum, the recovery of attorneys' fees and costs was directly limited to damages "arising out of or resulting from performance of the Subcontractor's Work[.]"
Contrary to Nusbaum, we find Section 15(B) comparable to the indemnity clause in RJF. RJF Int'l Corp.,
The clear and unequivocal language of Section 15(B) permitted recovery of attorneys' fees expended in enforcing the indemnity clause. See Lee,
Conclusion
The judgment of the trial court is affirmed.
Robert G. Dowd, Jr., P.J., concurs.
Sherri B. Sullivan, J., concurs.
Realty, Johnson Controls, and Sandsone also filed third-party petitions against Full Care, Inc. Realty and Sandsone dismissed their third-party petitions against Full Care, Inc.
All rule references are to Mo. R. Civ. P. (2017).
By their plain language, Rule 81.12(e) allows a respondent who is dissatisfied with the record on appeal to supplement the record, and Rule 81.12(f) authorizes this Court to order additions to the record. However, "these provisions do not relieve an appellant of the duty to compile the record[.]" Buford v. Mello,
In its reply brief, Realty claims that the legal file contained "the parties' Motions for [P]artial Summary Judgment" without citing to the record. Despite Realty's unsupported representation to the contrary, the summary-judgment motions and supporting materials are clearly absent from the record on appeal.
After the parties filed their briefs, Realty requested leave to supplement the record. The supplemental record purportedly contained over two thousand pages of materials. In its request, Realty did not explain why we should grant it leave, why the initial record was deficient, or whether supplementing the record would prejudice Johnson Controls. We denied the request. During Oral Argument, Realty renewed its request to supplement the record. We again deny Realty's request. Had this Court permitted the supplemental filing as requested, we would have become responsible for searching the proposed voluminous summary-judgment record to locate evidence supporting every factual proposition proffered in Realty's first point. In essence, we would have assumed the role of advocate for Realty. This we will not do. See Pemiscot Cty. Port Auth.,
Realty's initial and reply briefs also do not provide a standard of review, violating Rule 84.04(e). We may dismiss a point on this basis alone. Carter v. Treasurer of the State,
Although not cited by the parties, we feel compelled to note Missouri Pacific Railroad, Co., v. Rental Storage and Transit Co.,