National Ave. Bldg. Co. v. Stewart

• Decision Date: 31 July 1998
• Docket Number: 22015,Nos. 21991,s. 21991
• Citation: 972 S.W.2d 649
• Parties: NATIONAL AVENUE BUILDING COMPANY, Plaintiff-Respondent, v. Donald R. STEWART, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 649

972 S.W.2d 649

NATIONAL AVENUE BUILDING COMPANY, Plaintiff-Respondent, v. Donald R. STEWART, Defendant-Appellant.

Nos. 21991, 22015.

Missouri Court of Appeals,

Southern District,

Division One.

July 31, 1998.

Thomas W. Rynard, Craft, Fridkin & Rhyne, Jefferson City, for Defendant-Appellant.

Frank M. Evans, III, Daniel R. Wichmer, Miller & Sanford, P.C., Springfield, for Plaintiff-Respondent.

Before GARRISON, P.J., and PREWITT and CROW, JJ.

PER CURIAM.

This case, involving the arbitration of disputes between the parties now makes its sixth appearance in this court. On this appeal, Donald R. Stewart ("Stewart") complains that the trial court did not add prejudgment interest to the arbitrators' award in his favor when confirming it. ¹

We need not review the entire procedural and factual history of this matter. Those interested in such a review may consult the earlier decisions referred to marginally. ² Suffice it to say that the parties entered into a contract (the "contract") in 1984 whereby Stewart was to perform excavating, grading, and paving work for National Avenue Building Co. ("National") in connection with the development of a tract of land. The contract provided that "[p]ayments due and unpaid under the Contract Documents shall bear interest from the date payment is due ..." of ten percent per annum. It also provided that "[a]ll claims, disputes and other matters in question between [Stewart] and [National] arising out of or relating to the Contract Documents or the breach thereof ... shall be decided by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association ..."

Disputes between the parties arose and were submitted to arbitration. The documents forming the issues before the arbitrators are not in the record before us, and we cannot determine whether Stewart specifically requested interest as part of his claim. Sometime between January 12 and January 20, 1988, ³ the arbitrators entered their award in favor of Stewart in the amount of $162,889.00, plus ten percent interest from March 9, 1985 through January 8, 1988, in the amount of $45,698.17, for a total award of $208,587.17. On February 2, 1988, Stewart filed the award with the circuit clerk and requested that it be confirmed as a judgment. There was no request at that time for additional interest. On July 11, 1989, Stewart dismissed without prejudice his request that the award be confirmed.

On July 19, 1991, Stewart filed a motion to confirm the arbitration award in which he requested that the trial court enter a judgment confirming the arbitrators' award "plus any interest on such amount to which [Stewart] is entitled by law." Multifarious maneuvering occurred between the parties until the trial court entered a judgment on March 29, 1996 in the amount of the arbitrators' award. No mention was made, however, of the additional interest requested by Stewart. This court dismissed Stewart's appeal from that judgment because it did not dispose of all issues, namely, the issue of interest. See National Avenue Bldg. Co. v. Stewart, 943 S.W.2d 10, 12 (Mo.App. S.D.1997).

The trial court subsequently entered another judgment in which it specifically held that "[i]n accordance with the arbitration award, no additional interest is awarded," and "Stewart's claim for interest between the date of the arbitrator's [sic] award (January 20, 1988) and the present is denied." This appeal followed.

Stewart raises a single point on appeal:

The trial court erred in entering a judgment amount [sic] of $208,587.17, an amount that did not include interest at the rate of 10% from the date of the arbitration award to the date of judgment, in that [Stewart] was entitled to interest on the amount awarded as damages by the arbitration panel for the reason that the contract between [Stewart] and [National] provided for the payment of interest at the rate of 10% from the date that payment was due and unpaid under the contract.

Stewart did not seek to have the trial court vacate, modify, or correct the award pursuant to § 435.405 or § 435.410. ⁴ Rather, he takes issue with the trial court's failure to add to the judgment confirming the arbitrators' award a provision for interest between January 20, 1988 (the ending date for interest pursuant to the arbitrators' award), and November 6, 1997 (the date of the trial court's judgment).

The standard of review enunciated in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo.banc 1976) is applicable in court-tried cases involving arbitration awards. Sheffield Assembly of God Church, Inc. v. American Ins. Co., 870 S.W.2d 926, 929 (Mo.App. W.D.1994). We will confirm the trial court's judgment unless there is no substantial evidence to support it, it is against the weight of the evidence, it erroneously declares the law, or it erroneously applies the law. Id.

The parties have cited no Missouri cases deciding the issue presented here, and our research has revealed none. Section 435.450 provides that the Uniform Arbitration Act embodied in §§ 435.350 -.470 shall be construed "to effectuate its general purpose to make uniform the law of those states which enact it." This gives special importance to precedents from other states on the same issue. Heineman v. Charno, 877 S.W.2d 224, 227 (Mo.App. W.D.1994). "If there is no Missouri authority, and there is no compelling policy to overcome the need for uniformity, provisions of the UAA should be construed consistent with the decisional law of other signatory states." Id.

There are a number of reported cases holding that a party obtaining an arbitration award is entitled to interest from the date of the award to the date of the judgment confirming it. See Lundgren v. Freeman, 307 F.2d 104, 110-12 (9th Cir.1962); Meat & Allied Food Workers Local 248 v. Packerland Packing Co., 411 F.Supp. 1280, 1284 (E.D.Wis.1976); McDaniel v. Berhalter, 405 So.2d 1027, 1030 (Fla.Dist.Ct.App.1981); Jensen v. Illinois Farmers Ins. Co., 404 N.W.2d 880, 881 (Minn.Ct.App.1987); Hackman v. American Liab. Ins. Co., 110 N.H. 87, 261 A.2d 433, 438 (1970); Ukrainian Nat'l. Urban Renewal Corp., v. Joseph L. Muscarelle, Inc., 151 N.J.Super. 386, 376 A.2d 1299, 1307 (App.Div.1977); Harsen v. Board of Education, 132 N.J.Super. 365, 333 A.2d 580, 591 (Law Div.1975); New Mexico, ex rel. Hooten Constr. Co. v. Borsberry Constr. Co., 108 N.M. 192, 769 P.2d 726, 729-30 (1989); Durant v. Motor Vehicle Accident Indemnification Corp., 15 N.Y.2d 408, 260 N.Y.S.2d 1, 207 N.E.2d 600, 601 (1965); Weldon & Kelly Co. v. Pavia Co., 354 Pa. 75, 46 A.2d 466, 468 (1946); Kermacy v. First Unitarian Church, 361 S.W.2d 734, 735-36 (Tex.Civ.App.1962); R.E. Bean Constr. Co. v. Middlebury, Assocs., 139 Vt. 200, 428 A.2d 306, 313-14 (1980).

National attaches significance to the fact that the arbitrators had the authority to, but did not, assess post-award interest. In support, it cites Reilly v. Metropolitan Property & Liability Insurance Co., 412 Mass. 1006, 588 N.E.2d 628 (1992), and Sansone v. Metropolitan Property & Liability Insurance Co., 30 Mass.App.Ct. 660, 572 N.E.2d 588 (1991), each of which involved judgments entered by the trial court confirming the awards and in which interest was added. Both cases distinguish between pre-award and post-award interest, but hold that the trial court was correct in including interest from the date of the award to the date it was paid. Reilly, 588 N.E.2d at 629-30; Sansone, 572 N.E.2d at 590-91.

Nevertheless, National argues that the trial court lacked authority to add post-award interest to its judgment in this case because it was not included in the arbitrators' award. In support, it cites Kersting v. Royal-Milbank Insurance, 456 N.W.2d 270, 275 (Minn.Ct.App.1990), which held that a successful arbitration claimant was not entitled to have the trial court enter a judgment awarding prejudgment interest from the date of an arbitration award. The court reasoned that a claim for such interest was waived if not raised before the arbitrators, and if it was raised, but the award did not include it, the proper procedure was to seek a modification or correction of the award. Id. To the same effect is National Indemnity Co. v. Farm Bureau Mutual Insurance Co., 348 N.W.2d 748 (Minn.1984). There, the claimant requested, but was not granted, pre-judgment interest by the arbitrators, and the trial court added pre-judgment interest in confirming the award. The allowance of interest was reversed on appeal, with the court reasoning that such interest could not be awarded by the trial court where the claimant requested that relief in the application for arbitration, but did not receive it from the arbitrators. Id. at 752. Instead, the court held, the appropriate procedure would have been a request to modify or correct the arbitrators' award. Id.

Wanschura v. Western National Mutual Insurance Co., 389 N.W.2d 927 (Minn.App.1986) is another Minnesota case in which the appellate court affirmed the trial court's decision refusing a request to add pre-judgment interest to its judgment confirming an arbitration award. The court noted that the Minnesota statutes permit vacation, modification or correction of arbitrators' awards upon specified statutory grounds, but that if the award is to be confirmed, the judgment doing so is to be "in conformity" with the award. Id. at 928.

In Missouri, § 435.415 provides that "[u]pon the granting of an order confirming, modifying or correcting an award, judgment or decree shall be entered in conformity therewith and be enforced as any other judgment or decree." In Creative Builders, Inc. v. Avenue Developments, Inc., 148 Ariz. 452, 715 P.2d 308, 312 (App.1986) the court noted that "[e]xcept for certain well-defined circumstances set forth in our arbitration statutes, the trial court has no authority to modify an arbitration award when request is made for confirmation of that award ..." That case involved contractual...