Davis v. Johnson Controls, Inc.

• Decision Date: 17 April 2018
• Docket Number: No. ED 105474,ED 105474
• Citation: 549 S.W.3d 32
• Court: Missouri Court of Appeals
• Parties: Allen J. DAVIS, Plaintiff, v. JOHNSON CONTROLS, INC., Defendant/Respondent, and Realty Associates Advisors, LLC, & The Realty Associates Fund VII, L.P., Defendants/Appellants, and Sandsone Group/DDR LLC & Sandsone Group, Inc., Defendants, and Full Care, Inc., Third-Party Defendant.

549 S.W.3d 32

Allen J. DAVIS, Plaintiff,

v.JOHNSON CONTROLS, INC., Defendant/Respondent,andRealty Associates Advisors, LLC, & The Realty Associates Fund VII, L.P., Defendants/Appellants,

and

Sandsone Group/DDR LLC & Sandsone Group, Inc., Defendants,

and

Full Care, Inc., Third-Party Defendant.

No. ED 105474

Missouri Court of Appeals, Eastern District, DIVISION ONE.

FILED: April 17, 2018

David P. Bub, 800 Market St., Suite 1100, St. Louis, MO 63101, for appellant.

Bryan Cave, One Metropolitan Sq., Suite 3600, St. Louis, MO 63102, for respondent.

KURT S. ODENWALD, Judge

Introduction

Realty Associates Advisors, LLC and the Realty Associates Fund VII, L.P. (collectively, "Realty") appeal from the trial court’s judgment awarding Johnson Controls, Inc. ("Johnson Controls") $608,936.48 on Johnson Controls’s cross-claim seeking indemnification for its legal expenses. Johnson Controls sought recovery pursuant to an indemnity clause in a lease agreement ("the Lease Agreement") between Realty and Johnson Controls. Realty raises two points on appeal. In Point One, Realty contends that the trial court erred in awarding Johnson Controls damages because Realty did not owe a duty to indemnify Johnson Controls against the plaintiff’s claims under the Lease Agreement. In Point Two, Realty argues that the trial court erred by including in its award of attorneys' fees to Johnson Controls those attorneys' fees incurred by Johnson Controls in enforcing its right to indemnity against Realty. Because Realty did not provide this Court with an adequate record from which we may properly consider Realty’s liability for indemnity, we dismiss Realty’s Point One. Because the Lease Agreement expressly authorized the trial court to award Johnson Controls those attorneys' fees it incurred as a result of enforcing its right to indemnity against Realty, we deny Point Two and affirm the trial court’s judgment.

Factual and Procedural History

Allen J. Davis ("Davis") sued Realty, Johnson Controls, and Sandsone Group/DDR LLC and Sandsone Group, Inc. (collectively, "Sandsone"), seeking damages for personal injury after Davis slipped and fell at a property owned by Realty, leased by Johnson Controls, and managed by Sandsone.¹ Pursuant to the terms of the Lease Agreement, Johnson Controls tendered the defense of the lawsuit to Realty and sought indemnification against Davis’s claim from Realty. The Lease Agreement provided, in part, the following:

15. Indemnity

...

B. [Realty] shall indemnify and hold [Johnson Controls] harmless from and against all Damages, which may be imposed upon or incurred by or asserted against [Johnson Controls] arising from [Realty’s] use of or the condition of the Property, or from [Realty’s] action or inaction taken thereto or thereon, or from the breach by [Realty] of any of its obligations hereunder, whether or not, in any case, attributable to [Realty] or [Realty’s] employees, customers, agents, invitees, licensees, or guests (collectively, "[Realty’s] Representatives"), provided, such Damages do not arise from the acts, omissions or the negligence of [Johnson Controls] or [Johnson Controls’s] Representatives. In the event that any action or proceeding shall be brought against [Johnson Controls] by reason of any claim above referred to, [Realty], upon written notice from [Johnson Controls], shall at [Realty’s] sole cost and expense defend the same, in which event, [Realty] may select the attorneys to be used[.]

Section 15(A) of the Lease Agreement included a similar provision requiring Johnson Controls to defend claims brought against Realty and to indemnify Realty from damages under certain conditions. Section 15(A) also defined "Damages" as "all liabilities, obligations, losses, damages, penalties, claims, actions, suits, costs, charges, and expenses, including attorneys' fees[.]"

Realty refused Johnson Controls’s tender of the defense of Davis’s claims and indemnification request. Johnson Controls and Realty then filed opposing cross-claims, each alleging that the other was obligated to defend and indemnify against Davis’s claims under the Lease Agreement. Davis ultimately settled his claims with all of the defendants and dismissed his claims with prejudice. Upon the dismissal of Davis’s claims, only the opposing cross-claims of Realty and Johnson Controls remained pending before the trial court.

Johnson Controls moved for partial summary judgment on its cross-claim, asking the trial court to establish Realty’s liability for damages incurred by it as a result of Realty’s failure to defend and indemnify against Davis’s claims as required under the Lease Agreement. Johnson Controls reserved the issue of the amount of damages. The trial court granted partial summary judgment in favor of Johnson Controls, finding that Realty owed Johnson Controls a duty to defend and indemnify against Davis’s claims. Realty similarly moved for summary judgment on its cross-claim seeking damages for Johnson Controls’s failure to indemnify Realty. The trial court denied Realty’s motion, and concluded that "the sole issue" remaining between Johnson Controls and Realty was the amount of Johnson Controls’s damages.

Subsequently, Johnson Controls moved for an award of attorneys' fees and costs it incurred due to Realty’s refusal to defend and indemnify it against Davis’s claims. In its motion, Johnson Controls requested not only the attorneys' fees and costs expended in defending against Davis’s suit, but also the attorneys' fees and costs Johnson Controls incurred in litigating its indemnification cross-claim against Realty. The trial court held an evidentiary hearing, received expert testimony on the issue of damages, and considered the exhibits submitted with Johnson Controls’s motion. The trial court then awarded Johnson Controls $608,936.48 in attorneys' fees, costs, and other damages. This appeal follows.

Points on Appeal

Realty raises two points on appeal. Point One asserts that the trial court erred in awarding Johnson Controls damages because Realty was not obligated to indemnify Johnson Controls under the Lease Agreement; rather, Johnson Controls was obligated to indemnify Realty under the Lease Agreement. Point Two claims that the trial court erred when it included in its attorneys' fees award, those fees and costs incurred by Johnson Controls to establish its right to indemnity from Realty.

Discussion

I. Point One—Realty’s Failure to Provide an Adequate Record

Realty’s first point focuses on the trial court’s finding that Realty was obligated to defend and indemnify Johnson Controls against Davis’s lawsuit. Realty maintains that it was Johnson Controls not Realty, which owed a duty to indemnify against Davis’s lawsuit under the Lease Agreement. Johnson Controls avers that the record on appeal filed by Realty prevents this Court from undertaking any meaningful appellate review of this point on appeal. Specifically, Johnson Controls claims that Realty did not include in the record on appeal the summary-judgment pleadings and evidence upon which the trial court relied in finding that Realty was obligated to indemnify Johnson Controls under the Lease Agreement. Johnson Controls maintains that, without the summary-judgment records, we cannot review the trial court’s ruling on this point. We agree.

Appeals generally shall be taken in accordance with the rules of civil procedure relating to appeals. See Indep. Taxi Drivers Ass'n, LLC v. Metro. Taxicab Comm'n, 524 S.W.3d 157, 160 (Mo. App. E.D. 2017). Although not exclusive, Rule 81 governs many facets of appeals.² Id. Pertinent here, "Rule 81.12(d) obligates the appellant to file the record on appeal with this Court."³ Woods v. Friendly Ford, Inc., 248 S.W.3d 665, 672 (Mo. App. S.D. 2008) (overruled on other grounds by Badahman v. Catering St. Louis, 395 S.W.3d 29, 40 (Mo. banc 2013) ). Accordingly, Rule 81.12(d) required Realty, as the appellant, to submit the "record on appeal." Id.; Nolfo v. Dubin, 861 S.W.2d 136, 138 (Mo. App. E.D. 1993). Rule 81.12(a) explains that this "record on appeal" must include all of the records, proceedings, and evidence necessary to determine all the questions presented to the appellate court. Coyne v. Coyne, 17 S.W.3d 904, 906 (Mo. App. E.D. 2000). Failure to comply with Rule 81.12 by submitting a record on appeal that omits the documents necessary for appellate review will result in dismissal. Lewis v. Allstate Ins. Co., 131 S.W.3d 451, 453–54 (Mo. App. W.D. 2004).

In the present case, the trial court resolved the issue of liability under the Lease Agreement after reviewing the competing motions for summary judgment filed by Johnson Controls and Realty. The docket sheet shows that the parties presented the trial court with competing motions for summary judgments, arguments in support, and statements of uncontroverted material facts with supporting exhibits. The docket sheet further reveals that the parties filed responses, replies, and sur-replies, as well as additional statements of uncontroverted material facts. In short, the record reflects that the trial court awarded Johnson Controls partial summary judgment after considering a wealth of summary-judgment evidence offered by the parties under Rule 74.04(c).

Critically, none of these filings or supporting evidence—despite forming the summary-judgment records and becoming the basis for the trial court's judgment—are properly before this Court. Why is this omission fatal to this point on appeal? Because "[f]acts come into a summary judgment record only via Rule 74.04(c)’s numbered-paragraphs-and-responses framework," Pemiscot Cty. Port Auth. v. Rail Switching Servs., Inc., 523 S.W.3d 530, 532 (Mo. App. S.D. 2017) (quoting Jones v. Union Pac. R.R., 508 S.W.3d 159, 161 (Mo. App. S.D. 2016) ). In turn, appellate courts review summary judgment based on the Rule 74.04(c) record, not the whole trial-court record. Id. at 532–33.

As meaningfully expressed by the Southern District, "it remains Rule 74.04(c)’s precept that material...