Bland v. Imco Recycling, Inc.,, 25403.
| Court | Court of Appeal of Missouri (US) |
| Citation | 122 S.W.3d 98 |
| Docket Number | No. 25403.,25403. |
| Parties | Ernest BLAND, Plaintiff, v. IMCO RECYCLING, INC., Defendant-Appellant, Metal Mark, Inc., Defendant, and American Guarantee & Liability Insurance Company, Surety-Respondent. |
| Decision Date | 19 December 2003 |
v.
IMCO RECYCLING, INC., Defendant-Appellant,
Metal Mark, Inc., Defendant, and
American Guarantee & Liability Insurance Company, Surety-Respondent.
[122 S.W.3d 99]
Joseph C. Blanton, Jr., Blanton, Rice, Sidwell, Nickell & Cozean, L.L.C., and Richard C. Wuestling, IV, Wuestling & James, Sikeston, for appellant.
Larry David Fields and Bradley J. Baumgart, Shughart Thomson & Kilroy, Kansas City, for respondent.
NANCY STEFFEN RAHMEYER, Chief Judge.
On February 25, 2000, a jury returned a $4 million-dollar verdict in favor of Ernest Bland ("Plaintiff") against IMCO Recycling, Inc. ("IMCO") and Metal Mark, Inc. ("Metal Mark"), jointly and severally. American Guarantee & Liability Insurance Company ("Surety"), as surety, then posted a supersedeas bond in the amount of $4,550,000. On January 30, 2002, this court affirmed judgment against IMCO while reversing as to Metal Mark. See Bland v. IMCO, 67 S.W.3d 673 (Mo.App. S.D.2002). When IMCO subsequently refused to pay the judgment, Surety paid the sum of $3,575,016.78 and sought judgment against IMCO in order to recover the amount paid. The trial court entered summary judgment in Surety's favor and IMCO now appeals. We are compelled to reverse and remand for further proceedings; however, due to the procedural complexities of this case, we deem it prudent to set forth the factual background before we discuss the legal analysis and reasoning which necessitate reversal.
Surety is a wholly-owned subsidiary of Zurich American Insurance Company ("Insurer"), the company that insured one of the original defendants, Metal Mark.1 Immediately following the jury verdict, King Sidwell ("Sidwell"), who represented both IMCO and Metal Mark throughout the trial, sent a letter to Insurer which stated: "I need for you to get your heads together to determine which insurance carrier will post the bond or how you may be contributing to the securing of an insurance bond for supersedeas." Apparently,2 prior to any response or the posting of a supersedeas
bond, Lawrence B. Grebel ("Grebel") of Brown & James, P.C., undertook representation of IMCO and Metal Mark. Sidwell filed Grebel's entry of appearance on behalf of IMCO and Metal Mark. Bart Zuckerman ("Zuckerman"), another member of the Brown & James firm, filed a Joint Application for Setting Appeal Bond on behalf of IMCO and Metal Mark, which was granted by the trial court with the bond set at $4,550,000. Only the attorney for the Plaintiff was served with a copy of the application, and the application was never signed by Sidwell.
Zuckerman filed the bond issued by Surety with the trial court. Although it lists Metal Mark and IMCO as the principals on the bond, the only signature on the bond is that of Patrick F. Evans ("Attorney in Fact"), who signed as attorney in fact for Surety. Only the attorney for the Plaintiff received a copy of the bond.
After this court reversed the judgment against Metal Mark but affirmed against IMCO,3 the trial court entered its judgment in favor of Plaintiff. Plaintiff received a partial payment from Insurer, but IMCO subsequently refused to pay the balance. Plaintiff then filed a Motion for Judgment Against Surety on Appeal Bond and the trial court held a hearing on the motion. The entire docket entry on the motion hearing states: "Plaintiff appears by attorney, J Michael Ponder. Defendant appears by attorney, Thomas Ward. Plaintiff's motion taken up. Witness sworn, evidence adduced. Court finds that defendant IMCO has refused to pay amount ordered as judgment in this case. Bond to allow credit for amounts previously paid."4 Surety paid $3,575,016.78 to Plaintiffs and subsequently filed suit pursuant to § 433.0705 against IMCO to recover that amount. IMCO served its First Interrogatories and First Request for Production of Documents on Surety; however, Surety objected to both discovery requests. IMCO then filed a Motion to Compel Discovery Responses but, approximately one week later, Surety filed its Motion for Summary Judgment. Before the court ruled on the Motion for Summary Judgment, Surety filed an Additional Response in Support of its Motion for Summary Judgment on October 23, 2002, along with an affidavit from Grebel. Grebel stated in his affidavit that:
2. IMCO/Metal Mark understood that post-trial motions would be filed and authorized the filing of the same.
3. IMCO/Metal Mark understood that an appeal would be taken and authorized the same.
4. IMCO and Metal Mark wanted protection from execution of judgment by Plaintiff during the appeal.
5. IMCO and Metal Mark knew that to prevent execution, a bond would be required and that it would need to be filed with the Court.
6. I had authority from IMCO to obtain and post the bond.
Thereafter, on October 30, 2002, IMCO filed its Motion to Strike allegations concerning the authority of Grebel with an affidavit by Jeffrey S. Mecom ("Mecom"), the in-house legal counsel to IMCO, in which Mecom alleged that:
2. Attorney [Grebel] was contacted by [Insurer] after the jury verdict without the consent of IMCO or Metal Mark.
3. There were never any other discussions between [Insurer], which ultimately posted the supersedeas bond through [Surety], and [IMCO] or Metal Mark relating to the actual posting of the bond, any Indemnity Agreements relating thereto, or in the manner in which the bond would be collateralized.
4. [IMCO] never authorized [Attorney in Fact] for [Surety], or any other person, to sign the supersedeas bond on its behalf. IMCO never signed the bond, never consented to the posting of the bond as principal, was not asked and never agreed to be the principal on the bond, never signed an Indemnity Agreement, and never collateralized the bond. IMCO was not asked to provide any financial statement for consideration by [Surety] prior to the posting of the bond.
5. [IMCO] never authorized any person or entity to file a supersedeas bond on its behalf as reflected in "Exhibit F" to [Surety's] Motion for Summary Judgment without [IMCO's] signature.
6. When the bond was actually posted, [IMCO] did not receive a copy of the [Surety] supersedeas bond.
7. There were never any discussions between [IMCO] and any person or entity associated with [Surety] or [Insurer] which in any way suggested that a supersedeas bond would be posted in the amount of Four Million Five Hundred Fifty Thousand Dollars ($4,550,000.00) which bound [IMCO] as a principal.
On November 4, 2002, Surety filed its Renewed Motion for Summary Judgment, which included the Grebel Affidavit and a motion to shorten IMCO's time to respond to the Renewed Motion for Summary Judgment. On November 14, 2002, the trial court allowed IMCO thirty extra days to respond to Surety's Renewed Motion for Summary Judgment; however, it overruled IMCO's Motion to Compel Discovery Responses and did not allow IMCO to take the deposition of Grebel. On December 12, 2002, the court granted Summary Judgment to Surety for the sum of $3,839,468.28. This appeal follows, in which IMCO brings four points on appeal.
First, IMCO contends that the trial court erred in granting Surety's Motion for Summary Judgment pursuant to § 433.070 because IMCO did not execute or place its seal on the bond and, IMCO argues, this failure to execute the bond makes it null and void. Second, IMCO argues that the trial court's grant of summary judgment was inappropriate and should not stand because there are genuine issues of material fact as to whether IMCO was a principal on the bond. Third, IMCO alleges error in the trial court's refusal to permit IMCO to engage in discovery in violation of Rule 74.04,6 while arguing that such discovery would have provided IMCO with support for its contention that it was never a principal on the bond. Finally, IMCO also claims that the trial court erred in granting summary judgment because there were unresolved issues of material fact regarding IMCO's affirmative defenses of unclean hands and equitable estoppel. More specifically, IMCO claims it should have been allowed
to conduct additional discovery regarding the reasons behind Surety's posting of the bond and the manner in which the bond was posted.
If IMCO was correctly found liable as a matter of law on the bond pursuant to § 433.070, then we need not discuss IMCO's second, third, and fourth points. Given the disputed facts of this case, however, we cannot, at this juncture, find that Surety is...
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