Cupit v. Dry Basement, Inc.
| Decision Date | 28 January 2020 |
| Docket Number | WD 82683,WD 82699 |
| Parties | Ethan CUPIT, et al., Appellant-Respondents, v. DRY BASEMENT, INC., Respondent-Appellant. |
| Court | Missouri Court of Appeals |
Alexander Edelman, Kansas City, MO, Counsel for Appellant-Respondent.
Katherine Myers, Kansas City, MO, Co-Counsel for Appellant-Respondent.
Jason Kotlyarov, Raymore, MO, Co-Counsel for Appellant-Respondent.
Gary Steinman, Gladstone, MO, Counsel for Respondent-Appellant.
Robert MeGraw, Gladstone, MO, Co-Counsel for Respondent-Appellant.
Before Division One: Thomas N. Chapman, P.J., Mark D. Pfeiffer, and Anthony Rex Gabbert, JJ.
Dry Basement and Ethan and Ruth Cupit cross-appeal the trial court’s December 27, 2018, "Final Judgment." Rules 81.04(c) and 84.04(i). Dry Basement’s appeal (WD82683) and the Cupits’ appeal (WD82699) were consolidated. Dry Basement raises one point on appeal, and the Cupits raise two. The judgment is affirmed.
On November 11, 2016, the Cupits filed a petition for damages asserting multiple claims against Dry Basement, Inc. relating to Dry Basement’s sale and installation of a "No Water System," a basement sealing system to prevent water from entering the basement in the Cupits’ home. One of the claims asserted was violation of the Missouri Merchandising Practices Act (MMPA). As part of that claim, the Cupits requested attorney’s fees.
A jury trial was held on the MMPA claim from May 30 to June 4, 2018, and the jury returned a verdict in favor of the Cupits and assessed compensatory damages of $1,500. Thereafter, on June 13, 2018, the trial court entered a "Judgment" in accordance with the verdict plus costs. The June 13 "Judgment" did not address the Cupits’ request for attorney’s fees.
On July 11, 2018, the Cupits filed a motion to amend the judgment to include their attorney’s fees, costs, and post-judgment interest. The Cupits’ motion requested an award of attorney’s fees in the amount of $75,446, and included affidavits of trial counsel attesting to the number of hours expended and their hourly rate. On August 14, 2018, Dry Basement filed suggestions in opposition to the Cupits’ motion, which argued, among other things, that the number of hours and the hourly rates calculated by Cupits’ counsel were excessive. On August 21, 2018, the Cupits filed a reply in support of their motion. A hearing was held on the motion on September 12, 2018.1
On November 6, 2018, Dry Basement filed an application for satisfaction of judgment. It claimed that since more than ninety days had passed since the Cupits filed their motion to amend the judgment and the motion had not been ruled on, the motion was deemed overruled on October 9, 2018, under Rule 78.06, and the June 13, 2018 "Judgment" was a final judgment. It further claimed that it had forwarded a check to the Cupits’ attorney in the amount of $2,200, which exceeded the amount of the judgment, interest, and costs, but that the Cupits failed and refused to satisfy the judgment. The Cupits filed suggestions in opposition to Dry Basement’s application on November 12, 2018.
On December 19, 2018, the Cupits filed a supplemental motion for attorney’s fees with suggestions. They requested that their original motion seeking attorney’s fees, costs, and post judgment interest be granted and that they be awarded supplemental attorney’s fees (in the amount of $13,867.50) incurred in responding to Dry Basement’s application for satisfaction of judgment. On December 19, 2018, the Cupits also filed a request for findings of fact and conclusions of law.
On December 27, 2018, the trial court entered a "Final Judgment." It found that it had jurisdiction to enter the final judgment because it had not adjudicated all claims when it rendered the original judgment, in that it had not addressed the request for attorney’s fees sought by the Cupits in their petition. Therefore, the trial court entered the December 27, 2018 "Final Judgment" in favor of the Cupits and against Dry Basement on the MMPA claim and awarded them $1,500 in compensatory damages in accordance with the jury verdict. It further awarded the Cupits $57,775 in attorney’s fees and $346.40 in costs plus post-judgment interest. On the same day, the trial court entered three additional orders: one denying the Cupits’ request for findings of fact and conclusions of law, another denying the Cupits’ supplemental motion for attorney’s fees, and a third order denying Dry Basement’s application for satisfaction of judgment.
On January 25, 2019, Dry Basement filed a motion for new trial or, in the alternative, judgment notwithstanding the verdict. The trial court denied the motion on March 18, 2019. Dry Basement filed its notice of appeal in the trial court on March 26, 2019; the Cupits filed their notice of appeal on April 4, 2019; and the appeals were consolidated.2
Meanwhile, on January 11, 2019, the Cupits filed in this court a contingent motion for special order permitting late filing of notice of appeal (WD82448). They asserted that they filed such motion to preserve their right to ask for a special order allowing them to file a notice of appeal out of time if this court determines that the trial court’s June 13, 2018, "Judgment" was the final judgment in the case. After the notices of appeal were filed in the instant case, this court withheld ruling on the contingent motion for late notice of appeal until resolution of the instant case. It also directed the parties to address issues surrounding the timeliness of the filing of the notices of appeal in their briefs in this case.
In Dry Basement’s sole point on appeal, it contends that the trial court erred in entering the December 27, 2018 "Final Judgment." It asserts that the trial court was without jurisdiction to do so because its jurisdiction in the case ended on October 9, 2018, the date the last after-trial motion was deemed overruled per Rule 78.06 and Rule 81.05(a)(2)(A), ninety days after it was filed and not ruled upon.
In the Cupits’ second point on appeal, they address, at this court’s direction, the timeliness of the notices of appeal in this case and WD82699. They assert that Dry Basement’s notice of appeal filed on March 26, 2018, and their notice of appeal filed on April 4, 2018, in this case were timely. In the alternative, they contend that, if this court determines that the trial court’s June 13, 2018 "Judgment," and not its December 27, 2018 "Final Judgment," was the final judgment in this case, they have met the requirements of Rule 81.07(a) allowing this court to issue a special order permitting a late filing of the notice of appeal from the June 13 "Judgment."
"A final judgment is a prerequisite to appellate review." Ndegwa v. KSSO, LLC , 371 S.W.3d 798, 801 (Mo. banc 2012). If the trial court’s judgment was not a final judgment, then the appellate court lacks jurisdiction, and the appeal must be dismissed. Id. ; Flower Valley, LLC v. Zimmerman , 575 S.W.3d 497, 501 (Mo. App. E.D. 2019). Rule 74.01(a) defines a "judgment" as "a decree and any order from which an appeal lies." It further states, "A judgment is rendered when entered." Id. "A final judgment ‘resolves all issues in a case, leaving nothing for future determination.’ " Ndegwa , 371 S.W.3d at 801 (quoting Gibson v. Brewer , 952 S.W.2d 239, 244 (Mo. banc 1997) ). See also Flower Valley , 575 S.W.3d at 501 ().3
"An unresolved claim for attorney’s fees can arrest the finality of a judgment...." Ruby v. Troupe , 580 S.W.3d 112, 114 (Mo. App. W.D. 2019) (emphasis omitted) . See also Fid. Real Estate Co. v. Norman , 586 S.W.3d 873, 879 (Mo. App. W.D. 2019) ; Maly Commercial Realty, Inc. v. Maher , 582 S.W.3d 905, 910 (Mo. App. W.D. 2019). If a request for attorney’s fees is properly pleaded and pursued at or after trial, the trial court must resolve or dispose of the issue before a judgment can be deemed final. Norman , 586 S.W.3d at 879.
"To be awarded attorney’s fees, a party must plead a basis for an award of fees, in addition to simply including a request for attorney’s fees in its prayer for relief." Ruby , 580 S.W.3d at 115. " ‘Attorney fees are recoverable in two situations: when a statute specifically authorizes recovery and when the contract provides for attorney fees.’ " Id. (quoting Lucas Stucco & EIFS Design, LLC v. Landau , 324 S.W.3d 444, 446 (Mo. banc 2010) ). "Another exception is that attorney’s fees may, on rare occasions, be recovered when a court of equity finds it necessary to balance benefits where very unusual circumstances have been shown." Id. at 115 n.2 (internal quotes and citation omitted). The first situation applies in this case.
§ 407.025. The following is declared an unlawful practice in section 407.020:
The act, use or employment by any person of any deception, fraud, false pretense, false promise, misrepresentation, unfair practice or the concealment,...
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