State ex rel. Hawley v. Pilot Travel Ctrs., LLC

Decision Date21 August 2018
Docket NumberNo. SC 96885,SC 96885
Parties STATE of Missouri EX REL. Attorney General Joshua D. HAWLEY and the Board of Trustees of the Missouri Petroleum Storage Tank Insurance Fund, Appellant, v. PILOT TRAVEL CENTERS, LLC, Respondent.
CourtMissouri Supreme Court

The board was represented by Solicitor D. John Sauer and Deputy Solicitor Joshua Devine of the attorney general’s office in Jefferson City, (573) 751-3676.

Pilot was represented by Chad E. Blomberg, Robert Kent Sellers and Joshua B. Christensen of Lathrop Gage LLP in Kansas City, (816) 292-2000.

Mary R. Russell, Judge

The Board of Trustees of the Missouri Petroleum Storage Tank Insurance Fund, by and through the Missouri attorney general (collectively "the State"), appeals the circuit court’s judgment dismissing its claims of breach of contract and, in the alternative, unjust enrichment. Respondent Pilot Travel Centers, LLC, argues the State’s appeal is untimely and must be dismissed. In the alternative, it contends the circuit court correctly determined neither the Board nor the attorney general possessed standing to bring this case.

This Court finds the appeal is timely and the attorney general has authority to file this action on behalf of the Board, which has standing to sue. The circuit court’s judgment of dismissal is reversed and the case is remanded.


The legislature established the Petroleum Storage Tank Insurance Fund to provide owners of underground storage tanks insurance against petroleum spills or leaks. Section 319.129, et seq.1 To manage the general administration of the Fund, section 319.129.4 establishes a Board of Trustees. The Board is responsible for "the proper operation of the [F]und, including all decisions relating to payments from the [F]und." Id. Participation in the Fund is voluntary, section 319.131.1, and storage tank owners who seek coverage must apply for admission and pay participation fees before receiving Fund benefits. Section 319.131.8.

Williams TravelCenters, Inc., purchased insurance through the Fund for its service station in Higginsville. As a participant, Williams was subject to a participation agreement, which included a subrogation clause providing that if Williams ever incurred a claim arising out of a petroleum spill that the Fund helped remediate, Williams would assign any legal rights it had against the responsible party to the Board and assist the Board in pursuing the claim. Specifically, the subrogation clause stated Williams would "cooperate with [the Board] in the investigation, settlement or defense" of any claim and "assist [the Board], upon [its] request, in the enforcement of any right" against any third-party deemed to be at fault for the actionable petroleum spill.

Williams later sold the Higginsville station to Pilot. Pilot assumed all duties under the participation agreement. It continued to annually renew its insurance coverage and reaffirm its participation in the Fund. When Pilot later discovered a petroleum spill at its service station, it filed 24 reimbursement requests, totaling $732,932.30, for costs associated with remediation and cleanup. The Board honored these claims using Fund moneys.

An investigation determined the spill was caused by a defective pipe manufactured by Environ Products, Inc., and the Board, in preparation for its anticipated lawsuit against the company, contacted Pilot for assistance. Pilot failed to respond to all communications from the Board. Having received no response from Pilot, the Board filed a products liability lawsuit against Environ just before the expiration of the statute of limitations. Pilot again failed to respond to the Board’s continued requests for assistance and its request that Pilot sign a standstill agreement relinquishing any future legal right of action against Environ. Having no other choice, the Board dismissed its lawsuit against Environ.

The Board, by and through the attorney general, then sued Pilot, raising claims of breach of contract and, in the alternative, unjust enrichment, "arising from Pilot’s refusal to cooperate and assist in the lawsuit against Environ." Pilot filed two motions to dismiss the lawsuit, one alleging lack of standing and the other alleging failure to state a claim.

On June 22, 2016, the circuit court sustained Pilot’s motion to dismiss for lack of standing, determining neither the Board nor the attorney general had authority to bring the lawsuit. The circuit court found the Board lacked standing because there was no specific statutory authority, express or implied, empowering it to maintain the civil action against Pilot. Further, the circuit court ruled the attorney general could not sue on behalf of the Board because the Fund did not implicate "the rights and interests of the state." Section 27.060.

The State timely filed an authorized after-trial motion on July 22. It requested the court "amend its judgment by vacating it" in light of this Court’s decision in State ex rel. Koster v. ConocoPhillips Co. , 493 S.W.3d 397 (Mo. banc 2016), which was decided days after the circuit court’s dismissal. The State later argued that another recently decided case, City of Harrisonville v. McCall Service Stations , 495 S.W.3d 738 (Mo. banc 2016), also supported its arguments. According to the State, these cases should have prompted the circuit court to vacate its judgment and allow the case to proceed on the merits. On October 11—81 days after dismissing the State’s case—the circuit court vacated its order of dismissal with a docket entry labeled "Order to Vacate/Set Aside." Specifically, the order stated: "Judgment set aside. Revised judgment due 10/25/16. [Comments] by State 10 days later."

Several months later, on January 24, 2017, the circuit court entered a second judgment—an "amended judgment of dismissal." In the second judgment, the court "grant[ed] the State’s Motion to Amend Judgment Pursuant to Supreme Court Rule 78.04, in part, by setting aside its June 22, 2016 Judgment of Dismissal and amending it to address the ConocoPhillips and City of Harrisonville decisions." The second judgment reiterated the State’s lack of standing to sue. It "denie[d] the remainder of the Motion to Amend, and maintain[ed] its prior decision dismissing the action." The Board appeals.2

Standard of Review

This Court reviews a ruling on a motion to dismiss for lack of standing de novo. Lebeau v. Comm'rs of Franklin Cty., Mo. , 422 S.W.3d 284, 288 (Mo. banc 2014). It assumes all of the plaintiff’s claims are true "and liberally grants to [the] plaintiff all reasonable inferences therefrom." Id.


Before reaching the underlying issues in Pilot’s motion to dismiss, this Court must first confirm the appeal is timely. See Wells Fargo Bank, N.A. v. Smith , 392 S.W.3d 446, 452 (Mo. banc 2013). To be timely, the notice of appeal must be filed within 10 days after the judgment becomes final. Section 512.050. If a court lacks appellate jurisdiction, it must dismiss the appeal. Fannie Mae v. Truong , 361 S.W.3d 400, 403 (Mo. banc 2012).

I. Timeliness of the State’s Appeal

Pilot argues the State failed to timely appeal the circuit court’s June 22 judgment of dismissal. It contends that judgment became final pursuant to Rule 81.05 when the circuit court failed to rule on the State’s after-trial motion within 90 days. And because the State failed to timely appeal the June 22 judgment, the argument follows, this case is not properly before this Court. The State, however, contends the June 22 judgment never became final or appealable as the circuit court ruled on its motion on October 11, within the 90-day required period. The October 11 docket entry was labeled "Order to Vacate/Set Aside." A new judgment—entered on January 24—was the operative final judgment, which the State appealed in a timely fashion. For the reasons set forth below, the case is properly before this Court.

A. The Governing Rules

Two procedural rules, in particular, are at the heart of the parties' arguments: Rule 75.01 and Rule 81.05. Rule 75.01 allows trial courts to "retain control[ ] over judgments during the [30]-day period after entry of judgment and may, after giving the parties an opportunity to be heard and for good cause, vacate, reopen, correct, amend, or modify its judgment within that time." Once the rule’s 30-day window has expired, the judgment becomes final if neither party has filed an authorized after-trial motion. Rule 81.05(a)(1).

If any after-trial motions have been filed, the second rule—Rule 81.05—governs. In the event of a proper after-trial motion, the judgment will not become final until the earlier of "(A) [90] days from the date the last timely motion was filed, on which date all motions not ruled shall be deemed overruled," or "(B) If all motions have been ruled, then the date of ruling of the last motion to be ruled or [30] days after entry of judgment, whichever is later." Rule 81.05(a)(2)(A)-(B).

These two rules, however, do not confer identical powers to the circuit court. Under Rule 75.01, a circuit court may—for any reason supported by "good cause"—amend or modify its previously entered judgment, regardless of whether a party requested such modification or amendment. Rule 81.05 is more restrictive. "Once the thirty day period in Rule 75.01 expires, a trial court’s authority to grant relief is constrained by and limited to the grounds raised in a timely filed, authorized after-trial motion." Massman Constr. Co. v. Mo. Highway & Transp. Comm'n , 914 S.W.2d 801, 802-03 (Mo. banc 1996).

Contrary to this Court’s declaration in Massman , a number of lower court decisions have categorized the powers bestowed by Rules 75.01 and 81.05 as "the same power." See, e.g., Barr v. Sanders , 206 S.W.3d 393, 395 (Mo. App. 2006) ("The trial court retains the same degree of control over the judgment during [Rule 81.05’s] ninety-day period as that provided in Rule 75.01."); Puisis v. Puisis , 90 S.W.3d 169, 172 (...

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