Caldwell v. Heritage House Realty, Inc., et al

• Decision Date: 05 December 2000
• Citation: 32 S.W.3d 773
• Parties: (Mo.App. W.D. 2000) . Paula K. Caldwell and Marjorie L. Roberts, Appellants, v. Heritage House Realty, Inc., et al., Defendants, Bobby E. Rogers and Patricia Rogers, Respondents. WD58011 Missouri Court of Appeals Western District Handdown Date:
• Court: Missouri Court of Appeals

32 S.W.3d 773 (Mo.App. W.D. 2000)

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.

Paula K. Caldwell and Marjorie L. Roberts, Appellants, v. Heritage House Realty, Inc., et al., Defendants, Bobby E. Rogers and Patricia Rogers, Respondents.

WD58011

Missouri Court of Appeals Western District

Handdown Date: 12/05/2000

Appeal From: Circuit Court of Adair County, Hon. Lee E. Wells

Counsel for Appellant: Brian J. Niceswanger

Counsel for Respondent: William J. Gotfredson and Theresa Shean Hall

Opinion Summary: Paula K. Caldwell and Marjorie L. Roberts appeal from the circuit court judgment denying their application for attorney's fees and supplemental application for court costs arising out of a dispute between the appellants and the respondents, Bobby E. and Patricia A. Rogers, over the sale of the respondents' house to the appellants.

DISMISSED.

Division III holds:

No valid acceptance of the offer of judgment occurred in this case, thus rendering the judgment entered by the trial court a nullity and void ab initio, such that this Court has no jurisdiction to review the merits of the appeal.

Opinion Author: Edwin H. Smith, Presiding Judge

Opinion Vote: DISMISSED. Ulrich and Ellis, JJ., concur.

Opinion:

Paula K. Caldwell and Marjorie L. Roberts appeal from the judgment of the Circuit Court of Adair County denying their application for attorney's fees and supplemental application for court costs arising out of a dispute between the appellants and the respondents, Bobby E. and Patricia A. Rogers, over the sale of the respondents' house to the appellants.

The appellants raise two points on appeal. In Point I, they claim that the circuit court erred in denying their application for attorney's fees, after they had purportedly accepted the respondents' Rule 77.04¹ offer of judgment for $70,000 and costs, "because Missouri courts must enforce a contractual provision providing for attorney fees as written and [appellants] satisfied all contractual requirements for the award of attorney fees." In Point II, they make the identical claim only as to their supplemental application for court costs.

We dismiss for a lack of jurisdiction.

Facts

On or about August 29, 1995, the appellants entered into a real estate contract with the respondents to purchase the respondents' house located in Adair County, Missouri. The contract contained an express provision for the recovery of attorney's fees and court costs by the prevailing party in any dispute arising out of the contract.

After purchasing the house, the appellants discovered that it was infested with termites. Consequently, on May 9, 1997, they filed suit in the Circuit Court of Adair County, Missouri, against the respondents and Heritage House Realty, Inc., the realtor who helped the respondents sell the house; Vicki Benson, Anita James, and Kenneth Read, the real estate agents involved in the sale; Charles Hayes, the owner of ABAN Pest Control Co., and Robert Tilinski, both of whom inspected the home for termites prior to the appellants' purchase. The appellants sought to recover actual damages in excess of $225,000, as well as punitive damages, attorney's fees, and costs on several theories. On June 4, 1997, the respondents filed their answer to the appellants' petition. The appellants dismissed with prejudice their claims against ABAN and Tilinski on March 22, 1999. On October 8, 1999, after extensive discovery, the respondents made an offer of judgment for "$70,000, along with costs thus far accrued," pursuant to Rule 77.04. The appellants' claims against Heritage House, Benson, James, and Read were dismissed with prejudice on November 19, 1999. The appellants filed a notice of acceptance on October 18, 1999.

On October 22, 1999, the appellants filed an "Application and/or Motion for Attorneys' Fees as Prevailing Party." In their application, they alleged that the offer of judgment for $70,000 and costs was silent as to the award of attorney's fees to a prevailing party as provided in the parties' contract, and, thus, under general principles of contract law, requiring the court to construe the offer of judgment against the respondents who drafted it, they were entitled to an award of attorney's fees in addition to the $70,000. On November 4, 1999, the respondents filed their "Suggestions in Opposition to Plaintiffs' Application and/or Motion for Attorneys' Fees as Prevailing Party," arguing that the offer of judgment for $70,000 was in satisfaction of all claims, including attorney's fees. The circuit court heard the appellants' application for attorney's fees on November 12, 1999. On November 15, 1999, the circuit court overruled the appellants' application for attorney's fees.

On November 30, 1999, the appellants filed a "Supplemental Application for Court Costs as Prevailing Party," asking the court to make a determination as to the allowable costs under the offer of judgment. The application included an itemization of costs in the amount of $5,470.67, which amount appeared to be solely for costs incurred in connection with moving from the infested home. On December 3, 1999, the respondents filed their "Suggestions in Opposition" to this motion. On December 10, 1999, the circuit court overruled the appellants' application for court costs and entered judgment in favor of the appellants and against the respondents pursuant to the offer of judgment in the amount of $70,000 plus costs accrued in the action to October 18, 1999.

This appeal follows.

Standard of Review

"Rule 77.04 was designed simply to permit a defendant to avoid court costs by making an offer of judgment which, if accepted, would result in a consent judgment." Katz Drug Co. v. Commercial Standard Ins., 647 S.W.2d 831, 840 (Mo. App. 1983) (citing Miller v. United Sec. Ins., 496 S.W.2d 871, 876 (Mo. App. 1973); Fritzsche v. E. Tex. Motor Freight Lines, 405 S.W.2d 541, 544 (Mo. App. 1966)). A consent judgment is contractual in nature; thus, to the extent that a consent judgment requires interpretation, rules governing the interpretation of contracts apply. Boillot v. Conyer, 887 S.W.2d 761, 763 (Mo. App. 1994). Questions of contract interpretation are questions of law, Legg v. Certain Underwriters at Lloyd's of London, 18 S.W.3d 379, 383 (Mo. App. 1999), and are reviewed de novo by this court. Wildflower Cmty. Ass'n v. Rinderknecht, 25 S.W.3d 530, 534 (Mo. App. 2000). Hence, given the fact that the instant appeal raises a question of interpretation of the Rule 77.04 judgment entered by the circuit court, our review is de novo.

I.

In Point I, the appellants claim that the circuit court erred in overruling their application for attorney's fees, after they had purportedly accepted the respondents' Rule 77.04 offer of judgment, "because courts must enforce contractual provisions relating to an award of attorney's fees as written, and they had satisfied all of the contractual requirements for such an award." Specifically, the appellants contend that they were entitled to an amount, in addition to the $70,000, for attorney's fees in that:

(1) the contract between [appellants] and [respondents] mandated an award of attorneys' fees to the party prevailing in litigation; (2) [appellants] were the prevailing parties in the litigation; and (3) [respondents'] offer of judgment did not address or eliminate [their] obligation to pay attorney fees pursuant to the express terms of the contract between [the parties].

There is no dispute on appeal that the parties' real estate contract provided for an award of attorney's fees to the prevailing party, and that the appellants prevailed under the Rule 77.04 judgment entered by the circuit court. However, there is a dispute as to whether the respondents' offer of judgment for $70,000 included an amount in payment of attorney's fees and as such satisfied the appellants' claim for the same. As to this dispute, the appellants argue that the offer of judgment for $70,000 and costs was silent as to the award of attorney's fees, as provided in the parties' contract; thus, under general principles of contract law, requiring the court to construe the offer of judgment against the respondents who drafted it, they were entitled to an award of attorney's fees in addition to the $70,000. Accordingly, the issue raised by the appellants in their first point is whether the respondents' offer of judgment should have been interpreted by the circuit court as requiring a payment in excess of the $70,000 for attorney's fees.

The appellants' claim in this point necessarily assumes that there was an offer of judgment by the respondents and an acceptance by the appellants, all in accordance with Rule 77.04. Rule 77.04 reads:

At any time more than thirty days before the trial begins, a party defending against a claim may serve upon the adverse party an offer to allow judgment to be taken against the defending party for the money or property or to the effect specified in the offer, with costs then accrued. If within ten days after the service of the offer the adverse party serves written notice that the offer is accepted, either party may then file the offer and notice of acceptance together with proof of service thereof and thereupon judgment shall be entered. If the offer is not accepted within ten days it shall be deemed withdrawn and evidence thereof is not admissible. If the adverse party fails to obtain a judgment more favorable than that offered, that party shall not recover costs in the circuit court from the time of the offer but shall pay costs from that time.

If an offer of judgment is made and accepted in accordance with Rule 77.04, the circuit court must enter a judgment thereon. State ex rel. Riggs v. Clark, 14 S.W.3d 719, 721 (Mo. App. 2000). Conversely, logic would dictate that if the offer is not made and accepted in accordance with Rule 77.04, the trial court would lack authority to enter judgment pursuant...