Four Star Enters. Equip., Inc. v. Emp'rs Mut. Cas. Co.
| Decision Date | 14 July 2022 |
| Docket Number | s. SD 36906 & SD 36908 |
| Citation | 648 S.W.3d 903 |
| Parties | FOUR STAR ENTERPRISES EQUIPMENT, INC., and RGH, LLC, Plaintiffs-Appellants/Respondents, v. EMPLOYERS MUTUAL CASUALTY COMPANY, Defendant-Respondent/Cross-Appellant. |
| Court | Missouri Court of Appeals |
Attorney for Appellants/Respondents: Steven E. Marsh of Springfield, MO.
Attorneys for Respondent/Cross-Appellant: Jonathan T. Sternberg and Heather F. Shore of Kansas City, MO.
This appeal and cross-appeal arise from a judgment entered by the trial court in favor of plaintiff Four Star Enterprises Equipment, Inc. (Four Star) against defendant Employers Mutual Casualty Company (EMC), based upon its statutory surety bond issued pursuant to § 107.170.1 Four Star and co-plaintiff RGH, LLC (RGH) filed a joint appellants’ brief. In the first and second points, Four Star challenges the calculation of the judgment balance. In the third point, RGH challenges its dismissal from the case based upon the application of the five-year statute of limitations in § 516.120.
EMC's cross-appeal presents four points for decision. Point 1 challenges Four Star's standing and capacity to sue because of its merger with another company. Point 2 challenges Four Star's standing and capacity to sue because it assigned all of its rights and interests in this claim to RGH. Point 3 challenges the award of interest to Four Star. Point 4 contends that EMC, as surety, had the right to assert the defenses of fraud and collusion.
The outcome of this appeal is controlled by our disposition of RGH's point challenging its dismissal and EMC's second point challenging Four Star's standing because Four Star assigned its entire claim to RGH. Therefore, we will only address the merits of these two points.
Between 1996 and 1997, D&E Plumbing and Heating, Inc. (D&E) was the general contractor overseeing construction of the Plainview Road Improvements Program on U.S. 160 to Farm Road 141 (hereinafter the Road Project). EMC furnished the statutory payment bond for D&E's contracting work, including the Road Project, between 1995 and 1997. D&E hired T&T Construction (T&T) to work as a subcontractor on the Road Project. In September 1996, T&T rented equipment, purportedly for the Road Project, from Four Star. The terms of the rental contract: (1) set out the daily, weekly and monthly rates to rent the equipment; (2) required payment as "Net 30" with an additional 1.5% per month on overdue amounts; (3) required the lessee to pay the resulting invoice or replacement costs; (4) included a signature box for the "Lessee/Authorized Agent"; and (5) identified T&T as the lessee, with delivery of equipment to "Weaver Rd & Plainview Rd."
In May 1997, Four Star filed suit against D&E, T&T, and EMC for failing to pay for T&T's rented equipment. While that case was pending, Four Star was purchased by, and merged with, U.S. Rentals, Inc. As a part of that transaction, Four Star assigned all of its bad debts and the rights to all of its then existing legal claims to RGH. The assignment, which was dated June 1, 1999, stated that "Four Star Enterprises Equipment, Inc., hereby sells, grants, conveys and transfers unto RGH, L.L.C., all the bad debts, related claims, receivables, judgments, and all rights thereto, and all documents and records relating to the accounts, claims and judgments identified in the attached Exhibit ‘A.’ " The attached exhibit listed more than 70 different accounts or judgments, including a claim labeled "Four Star v. T & T Construction[.]" On November 16, 2005, Four Star obtained default judgment against T&T. Two days later, it dismissed its claims against D&E and EMC.
In September 2006, Four Star and RGH filed suit against EMC. In two counts, the petition alleged that: (1) EMC was obligated under its bond to pay Four Star and RGH the default judgment principal, pre-judgment and post-judgment interest, along with costs and attorney fees; and (2) EMC's refusal to pay was vexatious, rendering it liable for interest, penalties, and attorney fees. A copy of the surety bond was attached to the petition and marked as Exhibit A. This $1,973,102.55 contract bond, issued pursuant to § 107.170, was between D&E as principal and EMC as surety. The bond promised to pay if the principal failed to fulfill all conditions of the contract, including paying for equipment used in connection with the construction project.
In separate motions to dismiss, EMC asserted that: (1) Four Star lacked standing because it assigned its entire claim to RGH; and (2) RGH's claim was barred by the five-year statute of limitations, § 516.120.
The trial court ruled in favor of EMC, but it did so after retroactively excluding evidence admitted and relied on by Four Star and RGH during trial. On appeal, we decided that the trial court's ruling was an abuse of discretion. Four Star Enters. Equip., Inc. v. Emp'rs Mut. Cas. Co. , 451 S.W.3d 776, 782-83 (Mo. App. 2014). We reversed because of the error. Id . On remand, the trial court was instructed that, if the evidence proffered by Four Star and RGH was properly excluded, they should be given a chance to offer additional evidence. Id . In June 2015, the trial court issued an order reaffirming its ruling to exclude the evidence and giving Four Star and RGH an opportunity to offer additional evidence in support of the claim.
In November 2018, Four Star and RGH filed a motion for summary judgment. On July 2, 2019, the trial court granted summary judgment, only as to Count 1. In November 2019, EMC appealed the judgment. We dismissed the appeal because only one count of the petition had been decided, so there was no final judgment.
On April 17, 2020, Four Star and RGH voluntarily dismissed Count 2 without prejudice. A few days later, EMC filed a motion to set aside the summary judgment pursuant to Rule 74.06(b) based on excusable neglect, and a motion to grant an extension to respond to the summary judgment motion out of time. After conducting an evidentiary hearing and reviewing the parties’ suggestions, the trial court granted both requests on May 14, 2020.2 On May 29, 2020, EMC filed its timely response in opposition to Four Star and RGH's motion for summary judgment and paid the attorney-fee award to Four Star and RGH. In June 2020, EMC filed its own summary judgment motion.
On August 12, 2020, the trial court entered its judgment. The court did not grant either motion for summary judgment. Instead, after reviewing both motions, the court decided that no genuine issue of material fact precluded it from making factual findings and legal conclusions that were sufficient to address all claims.3 Citing our decision in State ex rel. Griffin v. R.L. Persons Constr., Inc. , 193 S.W.3d. 424, 429 (Mo. App. 2006), the court applied the five-year statute of limitations in § 516.120 and dismissed RGH from the case on the ground that its claim was time-barred. The court entered judgment in favor of Four Star and against EMC for $18,873.18, plus 18% interest "after 2/21/1997" until paid in full, and court costs.
Both parties submitted motions to amend the judgment and alternative motions for a new trial. The trial court denied those motions on November 10, 2020. EMC filed a timely notice of appeal. Four Star and RGH filed a timely notice of cross-appeal.
Four Star and RGH filed a motion, which was taken with the case, asking this Court to determine whether it has jurisdiction over this appeal. They argue that: (1) the July 2, 2019 summary judgment became final when Count 2 was dismissed on April 17, 2020; (2) the trial court lacked the authority to set aside the July 2, 2019 ruling; and (3) the August 12, 2020 judgment is void and cannot be appealed. We disagree.
The July 2, 2019 ruling only decided the issues raised in Count 1 of the petition. The other issues in the case remained pending until the voluntary dismissal of Count 2 on April 17, 2020. See Wilson v. City of St. Louis , 600 S.W.3d 763, 771 (Mo. banc 2020) ; Stewart v. Liberty Mut. Fire Ins. Co. , 349 S.W.3d 381, 384 (Mo. App. 2011). Once that voluntary dismissal was filed, it started the 30-day period to file after-trial motions. See BV Capital, LLC v. Larry Hughes , 437 S.W.3d 391, 392 (Mo. App. 2014) ; Rule 81.05(a)(1).
When an authorized after-trial motion is timely filed, the trial court's authority to modify the judgment continues for up to 90 days. See Heifetz v. Apex Clayton, Inc. , 554 S.W.3d 389, 393 (Mo. banc 2018) ; Cupit v. Dry Basement, Inc. , 592 S.W.3d 417, 424 (Mo. App. 2020) ; Rule 78.06. A Rule 74.06(b) motion alleging excusable neglect is an authorized after-trial motion if it is filed within the allotted 30-day time period. See Taylor v. United Parcel Serv., Inc. , 854 S.W.2d 390, 392 n.1 (Mo. banc 1993) ; Citimortgage, Inc. v. Waggoner , 440 S.W.3d 589, 590-91 (Mo. App. 2014) ; The Bank v. Lessley , 240 S.W.3d 739, 741 (Mo. App. 2007) ; Rule 78.04; Rule 81.05(a)(1).
EMC filed a motion to set aside the summary judgment pursuant to Rule 74.06(b), based on excusable neglect, on April 21, 2020. The timely filing of this motion extended the trial court's authority over the judgment for up to 90 days. See Rule 81.05(a). The trial court granted the motion on May 14, 2020, if EMC met two conditions. Both conditions were met within the time permitted. The July 2, 2019 grant of summary judgment was set aside as of May 29, 2020. The trial court had the authority to do so because its ruling occurred within the 90-day period for granting relief based upon an authorized after-trial motion. See Citimortgage , 440 S.W.3d at 591 ; Rule 81.05(a)(2). Therefore, we have jurisdiction to decide the appeals before us on the merits.
In Point 2 of EMC's brief, EMC contends Four Star lacks standing because it assigned all of its interests and rights in the "Four Star v. T & T Construction"...
To continue reading
Request your trial
-
Starr Indem. & Liab. Co. v. Union Ins. Co.
... ... Plaintiff Turbine Master, Inc. (“Turbine”) ... following a motor ... tortfeasor.”); Four Star Equip., Inc. v. Employers ... Mut ... ...