Amwest Sur. Ins. Co. v. Stamatiou

• Decision Date: 18 May 1999
• Docket Number: No. WD,WD
• Citation: 996 S.W.2d 708
• Parties: AMWEST SURETY INSURANCE COMPANY, Respondent. v. Dimitri S. STAMATIOU, Appellant, 55276.
• Court: Missouri Court of Appeals

Page 708

996 S.W.2d 708

AMWEST SURETY INSURANCE COMPANY, Respondent. v. Dimitri S. STAMATIOU, Appellant,

No. WD 55276.

Missouri Court of Appeals,

Western District.

May 18, 1999.

Motion for Rehearing and/or Transfer to

Supreme Court Denied June 29, 1999.

Application for Transfer Denied

Aug. 24, 1999.

Lawrence Lerner, Kansas City, for Respondent.

Dimitri Stamatiou, Kansas City, Appellant Acting pro se.

Before Presiding Judge LAURA DENVIR STITH, Judge HAROLD L. LOWENSTEIN and Judge JAMES M. SMART, Jr.

LAURA DENVIR STITH, Judge.

The trial court granted Plaintiff-Respondent Amwest's motion for summary judgment in an interpleader action filed by Amwest in order to settle the conflicting claims of Defendant-Appellant, Dimitri Stamatiou, and his former spouse, Dian Stamatiou, to the proceeds of a $25,000 supersedeas bond that Amwest issued for an appeal taken in an unlawful detainer action involving the Stamatious and El Greco Studios, Inc. The trial court dismissed and discharged Amwest in this interpleader action on May 15, 1997, once it determined that the requirements for interpleader were met and that Amwest had paid into the court the full amount of its appeal bond, $25,000. In December 1997, the interpleader court awarded the full amount of the bond to Mrs. Stamatiou. Mr. Stamatiou appeals the December 1997 judgment as to Amwest only; he does not appeal the award of the bond to Mrs. Stamatiou. Mr. Stamatiou argues that Amwest should have paid him because of errors in the unlawful detainer case in which the appeal bond was originally filed. Amwest argues that the appeal is untimely, as it should have been taken within 10 days after the court's May 15, 1997 ruling discharging it as a party became final, rather than within 10 days after the court's December 1997 determination that Mrs. Stamatiou was entitled to the bond amount Amwest had paid into court, became final.

I. FACTUAL AND PROCEDURAL BACKGROUND

El Greco Studios, Inc. d/b/a Greek Islands Restaurant, is owned by Mr. Stamatiou. The property on which it is situated was awarded to Mrs. Stamatiou in their dissolution action, as detailed in prior opinions of this Court. ¹ In 1993, Mrs. Stamatiou filed an unlawful detainer action in which she sought to remove El Greco Studios from the property for non-payment of rent.

On August 6, 1993, judgment in the unlawful detainer action was rendered for Mrs. Stamatiou and she was granted immediate possession of the property. On September 16, 1993, a $25,000 supersedeas bond was issued by Amwest, as surety, and by Mr. Stamatiou, as principal, so that El Greco could appeal the unlawful detainer judgment. On appeal, this Court affirmed the circuit court's judgment. Stamatiou v. El Greco Studios, Inc., 898 S.W.2d 571 (Mo.App.1995). Thereafter, Mr. Stamatiou, acting on El Greco's behalf as "Attorney Pro Se," filed a motion to vacate and set aside the unlawful detainer judgment, alleging it had been procured through various improper means. The circuit court denied the motion, and Mr. Stamatiou appealed for El Greco. Because Mr. Stamatiou, as a non-lawyer, could not represent the El Greco corporation or act on its behalf in any legal proceedings, we remanded with instructions that the circuit court vacate its order denying El Greco's motion to vacate or set aside the unlawful detainer judgment and instead dismiss that action for lack of jurisdiction. Stamatiou v. El Greco Studios, Inc., 935 S.W.2d 701 (Mo.App.1996).

On July 7, 1995, Mrs. Stamatiou moved for judgment against Amwest, as surety, on the $25,000 appeal bond paid out in 1993 for appeal of the original unlawful detainer action. On January 15, 1996, the circuit court entered judgment in favor of Mrs. Stamatiou and against Amwest for the total amount of the appeal bond, $25,000. Shortly thereafter, Mr. Stamatiou notified Amwest of his objection to any payment of the bond to Mrs. Stamatiou. He asserted that the bond was not properly issued because, since this Court, in its 1996 ruling, had determined that he was not a proper party to the unlawful detainer action, he therefore should not have paid the bond, and thus should get it back.

On July 18, 1996, Amwest filed this interpleader action, noting that Mr. and Mrs. Stamatiou each made conflicting claims to the proceeds of the bond. Amwest further asserted that it had no interest in the proceeds and that the claimants should be required to interplead and settle the matter between themselves. Pursuant to court order, Amwest paid the full $25,000 amount of the appeal bond into court. It then filed a motion for summary judgment, dismissal and discharge in the action, asserting it had fulfilled all of its obligations by paying into the court the full amount of the bond, and that there were no facts left to resolve in its favor because it had requested no fees or costs in the interpleader action. Mr. Stamatiou filed a counterclaim to Amwest's motion for summary judgment, asserting the bond was not proper because he had not been named individually as a party in the unlawful detainer proceeding. He argued that Amwest had thus breached its obligation to him by issuing the bond, and Mrs. Stamatiou had no right to the money, so he should be paid the full bond amount.

On May 15, 1997, the interpleader court granted Amwest's motion for summary judgment and dismissed Mr. Stamatiou's counterclaim. In so doing, it found the interpleader action proper because there were two competing claims to the money, and thus, Amwest, having paid the full amount of the bond into court, had an absolute defense and bar to the counterclaim. The court ordered that Amwest be discharged and dismissed as a party in the matter. Mr. Stamatiou filed a Petition for Review in the circuit court of Jackson County asking the court to vacate and set aside both its own May 15, 1997 order granting summary judgment to Amwest, as well as the earlier judgment in the unlawful detainer action, alleging fraud in their procurement. The petition was denied August 1, 1997.

On July 25, 1997, a hearing was held before the circuit court to settle the competing claims of Mr. and Mrs. Stamatiou to the appeal bond. On December 18, 1997, the court entered judgment in favor of Mrs. Stamatiou and ordered payment of the bond proceeds to her. Mr. Stamatiou appeals the court's December 18, 1997 judgment, but on appeal argues only against the earlier dismissal of Amwest; he does not raise any claim of error in the court's award of the bond proceeds to Mrs. Stamatiou in its December 18, 1997 judgment.

II. STANDARD OF REVIEW

We will sustain the judgment of the trial court unless the judgment is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

III. LEGAL ANALYSIS

Amwest argues we should dismiss the appeal as untimely because the summary judgment entered in its favor on May 15, 1997, dismissing it from further liability in the interpleader action, was a final and appealable judgment, and Mr. Stamatiou failed to timely appeal that judgment. We agree with Amwest that, if Mr. Stamatiou wished to appeal the court's May 15, 1997 ruling that interpleader was proper, that Amwest had paid its full obligation into court, and that Mr. Stamatiou's counterclaim was meritless, he was required to raise it by appealing at that time, and cannot raise it now upon appeal of the court's later and separate judgment determining which of the two claimants is entitled to the fund.

This ruling follows from the fact that "the purpose of an interpleader action is to adjudicate the distribution of funds held by a...