Bellon Wrecking & Salvage Co. v. David Orf, Inc.
| Decision Date | 13 October 1998 |
| Docket Number | No. 72838,72838 |
| Citation | 983 S.W.2d 541 |
| Court | Missouri Court of Appeals |
| Parties | BELLON WRECKING & SALVAGE COMPANY, Respondent, v. DAVID ORF, INC. d/b/a Orf Construction and Safeco Insurance Company of America, Appellants. David Orf, Inc. d/b/a Orf Construction and Safeco Insurance Company Of America, Appellants. v. Bellon Wrecking & Salvage Company, Respondent. David Orf, Inc. d/b/a Orf Construction and Safeco Insurance Company Of America, Appellants. v. Bellon Wrecking & Salvage Company, Respondent. |
Michael A. Clithero, Eric D. Martin, Peper, Martin, Jensen, Maichl and Hetlage, St. Louis, for appellants.
Thomas A. Connelly, Michael J. Angelides, St. Louis, for respondent.
This is a consolidated appeal from three separate trial court proceedings involving the same parties and a common nucleus of operative facts. David Orf, Inc. d/b/a Orf Construction ("Orf") and Safeco Insurance Company of America ("Safeco") appeal a January 6, 1998 judgment confirming an arbitration award in favor of Bellon Wrecking & Salvage Company ("Bellon") entered in the Circuit Court of St. Louis County by the Honorable Robert L. Campbell. That judgment corrected a December 23, 1996 order pursuant to our decision in Bellon Wrecking & Salvage Co., Inc. v. Dave Orf, Inc. d/b/a Orf Construction and Safeco Insurance, 956 S.W.2d 437 (Mo.App. E.D.1997). Orf and Safeco next appeal a June 6, 1997 judgment entered in the Circuit Court of St. Louis County by the Honorable Patrick Clifford that also confirmed the arbitration award and a November 19, 1997 judgment entered in the Circuit Court of St. Louis City by the Honorable Julian L. Bush granting summary judgment dismissing the case on res judicata grounds.
We affirm in part, reverse and remand in part and dismiss in part.
Bellon instituted suit against Orf, Sverdrup Associates, Inc. ("Sverdrup"), Washington University and Safeco in October, 1993 in the Circuit Court of St. Louis County before the Honorable Robert L. Campbell ("County I") seeking a mechanic's lien and monetary relief allegedly due as the result of certain labor and materials Bellon provided at a construction project. The defendants filed a motion to stay the case pending arbitration pursuant to the arbitration clause agreement between the parties and the trial court subsequently granted the motion. The parties mediated their disputes. The dispute between Orf and Sverdrup was settled. However, mediation failed with respect to Bellon, Orf and Safeco, and they proceeded, in the City of St. Louis, to arbitration.
In October, 1996, the trial court gave notice that the action would be dismissed for failure to prosecute. Judge Campbell dismissed the case on November 20, 1996. On November 21, 1996, the arbitrator forwarded his award in favor of Bellon to the American Arbitration Association. Subsequently, the Association forwarded the award to the parties.
On December 19, 1996, Bellon filed a Motion to Set Aside Dismissal and Motion for Judgment Upon Arbitration Award, and also set and noticed hearing on the motions. Four days later, without a hearing, Judge Campbell entered his order granting the motion to set aside dismissal and entering judgment on the arbitration award.
Orf and Safeco appealed the December 23, 1996 order on the grounds that, inter alia (1) the trial court lost jurisdiction over its November 20, 1996 dismissal on December 20, and its order of December 23, 1996 was entered without jurisdiction; (2) the trial court erred in failing to conduct a hearing prior to setting aside its order of dismissal even if it retained jurisdiction; and (3) the trial court erred in entering judgment on the arbitration award prior to the expiration of ninety days to allow respondent to apply to vacate the award or to modify and correct the award (hereinafter, the first appeal will be referred to as "Orf I" ). This Court, following argument in Orf I, dismissed Orf I for lack of jurisdiction on November 25, 1997, holding that the trial court's order was not a final judgment in that it failed to dispose of all the issues as to all of the parties and also failed to find that "there is no just reason for delay" as required by Rule 74.01(b). See, Bellon Wrecking & Salvage Co., Inc. v. Dave Orf, Inc. d/b/a Orf Construction and Safeco Insurance, 956 S.W.2d 437 (Mo.App. E.D.1997). On remand, Judge Campbell amended his order by interlineation to dispose of all of the remaining defendants, entitling his action as "final judgment" on January 6, 1998.
On March 10, 1997, Bellon filed a garnishment against Orf in the amount of the judgment of December 23, 1996 plus interest. The trial court entered a "Pay in Judgment" directing Commerce Bank to transfer the funds into the court registry and on April 17, 1997, the trial court ordered the transfer of that amount, $82,951.00, to Bellon. After this Court's decision in Orf I, Orf and Safeco filed a Motion to Set Aside Garnishment. The trial court subsequently denied the motion.
Orf and Safeco appeal the order of December 23, 1996 (as amended on January 6, 1998) setting aside the dismissal and entering judgment on the arbitration award. They also appeal the trial court's denial of the Motion to Set Aside Garnishment. Orf and Safeco argue that the trial court erred in: (1) setting aside the previous dismissal and entering judgment on the arbitration award because it had lost jurisdiction over the case thirty days after entry of the order of dismissal; (2) setting aside the previous dismissal without a hearing as required by Rule 75.01; (3) entering judgment on the arbitration award without allowing Orf and Safeco ninety days in which to challenge an arbitrator's award, as provided by Sections 435.405.2 and 435.410 RSMo Cum.Supp. (1996); (4) entering judgment on the arbitration award because Bellon failed to serve Orf and Safeco as required by Section 435.425 RSMo Cum.Supp. (1996); (5) entering judgment on the arbitration award because venue was proper in St. Louis City rather than St. Louis County; and (6) denying Orf and Safeco's Motion to Set Aside Garnishment because the "judgment" upon which the garnishment was entered was not valid or final.
Orf and Safeco filed two suits seeking to vacate, modify or correct the arbitration award, one in St. Louis City on February 19, 1997 (the "St. Louis City Action") before the Honorable Julian L. Bush, and the other in St. Louis County on February 25, 1997 ("County II") before the Honorable Patrick Clifford. 2 These suits were filed after Judge Campbell had set aside his dismissal and confirmed the arbitration award and also after Orf and Safeco had filed their first appeal of that decision. Orf and Safeco challenged the arbitration award, arguing that the arbitrator had not conducted the arbitration proceedings pursuant to statute and that he had exceeded his powers.
In County II, Bellon filed a counterclaim seeking confirmation of the arbitration award. Bellon filed a Motion for Summary Judgment on the Counterclaim, arguing that it was entitled to judgment against Orf and Safeco because the arbitration was binding, precedent wouldn't allow the court to look behind the award and examine the merits of the case, Judge Campbell had already entered judgment in Bellon's favor in a prior proceeding and there was no genuine issue as to any material fact. Orf and Safeco filed a Motion to Dismiss the Counterclaim pursuant to Rule 55.27, arguing that Bellon had asserted the same claim that was pending between the parties for the same cause in County I, and the counterclaim was barred by the doctrine of abatement and the court lacked jurisdiction to hear it. Judge Clifford heard argument on Bellon's Motion for Summary Judgment on June 3, 1997 and granted summary judgment in favor of Bellon three days later in the amount of the arbitrator's award plus interest.
Orf and Safeco now appeal that judgment, arguing the trial court in County II erred in granting summary judgment in favor of Bellon and confirming the arbitration award because: (1) it had no jurisdiction over the case because Bellon's counterclaim involved the same parties, the same facts, the same issues and sought the same relief as County I then pending before the this Court (Orf I ); (2) it had no jurisdiction over the case because the action involved the same parties, same facts, same issues and sought the same relief as the prior action which was already pending before the Circuit Court of the City of St. Louis; and (3) there were genuine issues of material fact concerning the conduct of the arbitration proceedings and Bellon's entitlement to judgment on that arbitration award because the arbitrator denied Orf and Safeco the right of cross-examination and otherwise exceeded his powers.
Orf and Safeco filed suit against Bellon in the St. Louis City Action on February 19, 1997. Bellon did not receive service of process in the St. Louis City Action until May 30, 1997 and subsequently filed an Answer and Counterclaim, again seeking confirmation of the arbitration award. Bellon also filed a Motion for Summary Judgment as to the claims asserted by Orf and Safeco on the grounds of res judicata, arguing that the purported summary judgment entered in County II on June 6, 1997, precluded trial court jurisdiction in the St. Louis City Action. Bellon subsequently filed a Motion for Summary Judgment as to its counterclaim seeking confirmation of the arbitration award.
Orf and Safeco filed a motion on August 29, 1997, to remove the case from its trial docket and stay the proceedings pending appeals in County I and County II. Orf and Safeco also filed a Motion to Dismiss Bellon's Counterclaim on doctrine of abatement grounds. They argued that Bellon had asserted...
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