Bituminous Cas. Corp. v. Moore

• Decision Date: 18 January 2002
• Docket Number: No. 24050.,24050.
• Citation: 64 S.W.3d 356
• Parties: BITUMINOUS CASUALTY CORPORATION, Plaintiff-Respondent, v. Dewey MOORE, d/b/a Dewey Moore Construction, Defendant-Respondent, and Dale Moore, Defendant-Appellant.
• Court: Missouri Court of Appeals

64 S.W.3d 356

BITUMINOUS CASUALTY CORPORATION, Plaintiff-Respondent, v. Dewey MOORE, d/b/a Dewey Moore Construction, Defendant-Respondent, and Dale Moore, Defendant-Appellant.

No. 24050.

Missouri Court of Appeals, Southern District, Division One.

January 18, 2002.

Richard D. Crites, Springfield, for Appellant.

Jerry A. Harmison, Lathrop & Gage, Springfield, for Respondent Bituminous Casualty Corporation.

Michael R. Testerman, Branson, for Respondent Dewey Moore, d/b/a Dewey Moore Construction.

KENNETH W. SHRUM, Presiding Judge.

After Dewey Moore ("Dewey") and his son, Dale Moore ("Dale"), disagreed regarding who owned and was entitled to possession of a backhoe, Dale surreptitiously took the backhoe from Dewey and concealed it in a friend's barn. Thereon, Dewey filed a claim with Bituminous Casualty Company ("Bituminous") under a policy covering the backhoe which insured Dewey for theft losses. Bituminous promptly settled the claim with Dewey by paying $38,500 for the loss.

After learning Dale had the backhoe, Bituminous filed this case against Dale and Dewey seeking to recover its losses via multiple, but alternative, counts and theories. The first count of its petition (denominated "Declaratory Judgment") sought a declaration of the "rights and duties of the parties ... under ... contracts in the controversy" and requested that the court "award [Bituminous] a reasonable attorney's fee."¹ Dewey and Dale filed separate answers to the Bituminous petition and brought cross-claims against each other.²

Following trial, the court ruled the declaratory judgment count of the Bituminous petition favorably to Bituminous and against Dewey by declaring Dewey owed Bituminous $38,500 "as principal" and prejudgment interest of $9,960.³ The trial court did not, however, mention or otherwise dispose of Bituminous's claim against Dewey and Dale for attorney fees as asserted in its declaratory judgment count. The court ruled Dale's three-count cross-claim (see n. 2) adversely to him and favorably to Dewey. As to Dewey's cross-claim against Dale, the court found for Dewey and entered judgment against Dale for $48,460.⁴ Dale appeals from that part of the judgment which ruled cross-claims adversely to him. We dismiss the appeal for want of appellate jurisdiction.

Although the parties have not raised the issue of appellate jurisdiction, it is our duty to do so, sua sponte. Ackerson v. Runaway II, Inc., 961 S.W.2d 933, 934 (Mo.App.1998). Generally, an appellate court has jurisdiction only over final judgments, McKean v. St. Louis County, 936 S.W.2d 184, 185 (Mo.App.1996), meaning judgments which dispose of all issues for all parties in the case leaving nothing for future determination. Artisan Construction, Inc. v. Greuter, 975 S.W.2d 958 (Mo. App.1998). Rule 74.01(b) authorizes a trial court to designate as final a judgment that does not dispose of all issues or parties if the trial court expressly finds "that there is no just reason for delay."⁵ McKean, 936 S.W.2d at 186. However, "[i]f the trial court does not either resolve all the issues as to all parties or expressly designate its action final in accordance with Rule 74.01(b), the appeal must be dismissed." Id.

In this case, Bituminous sought recovery of its attorney fees as part of its declaratory judgment count which was the count upon which it prevailed. Although no express provision for awarding attorney fees can be found in Missouri's declaratory judgment act (§§ 527.010-.290), courts have consistently relied on § 527.100 to award attorney fees in declaratory judgment actions if "very unusual circumstances" are shown.⁶ Law v. City of Maryville, 933 S.W.2d 873, 878 (Mo.App. 1996). "More recent cases have recognized that attorneys' fees may be allowed where the natural and proximate result of a breach of duty is to involve the wronged party in collateral litigation." David Ranken, Jr. Tech. Inst. v. Boykins, 816 S.W.2d 189, 193 (Mo.banc 1991). From these and other cases, it is clear that the attorney fee issue raised by Bituminous was not wholly frivolous or nonexistent, yet the trial court did not dispose of the issue, nor address it in any manner.

"A judgment's silence on an issue should not be deemed a disposition of that issue except where a ruling on one issue necessarily constitutes a ruling on the other." In re Carl McDonald Revocable Trust, 899 S.W.2d 138, 139 (Mo.App.1995). Here, the trial court's entry of a declaratory judgment that found Dewey owed Bituminous $38,500 principal plus accrued interest did not rule or dispose of the attorney fee issue. Because the portion of Bituminous's declaratory judgment count seeking attorney fees is left open for future determination, and the trial court did not make the appealability determination under Rule 74.01(b), a final and appealable judgment...