Surety v. Woods of Somerset, LLC

• Decision Date: 03 March 2015
• Docket Number: WD 77792
• Citation: 455 S.W.3d 487
• Parties: Developers Surety and Indemnity Company, Respondent, v. Woods of Somerset, LLC, et al., Appellant.
• Court: Missouri Court of Appeals

455 S.W.3d 487

Developers Surety and Indemnity Company, Respondent

v.Woods of Somerset, LLC, et al., Appellant.

WD 77792

Missouri Court of Appeals, Western District.

Opinion filed: March 3, 2015

Shane C. Mecham, for Respondent.

Mark H. Epstein, Kansas City, for Appellant.

Before Division Two: Anthony Rex Gabbert, Presiding, Judge, Joseph M. Ellis, Judge and Karen King Mitchell, Judge

Opinion

Joseph M. Ellis, Judge

This case arises from claims brought by Developers Surety and Indemnity Company (“DSI”) against Daniel Waldberg, Brenda Waldberg, Barney Ashner, Marlene Ashner, and Woods of Somerset, LLC (“Appellants”) related to an indemnity agreement Appellants executed in order to obtain a payment bond from DSI for the development of a subdivision. After an excavation company filed suit seeking payment for work that had been performed at the subdivision, DSI filed cross-claims and third-party claims against Appellants based upon the indemnity agreement, asserting that DSI was entitled to indemnification and specific performance of the indemnity agreement.

The trial court eventually entered judgment in favor of the Appellants on DSI's claims, concluding that the indemnity agreement was unenforceable because it was not properly executed and because there was no meeting of the minds. On appeal, this Court held that the indemnity agreement was unambiguous, valid, and enforceable. Accordingly, we reversed the judgment, and the cause was remanded to the trial court for entry of judgment in favor of DSI. Woods of Somerset, LLC v. Developers Sur. & Indem. Co., 422 S.W.3d 330, 336 (Mo.App.W.D.2013).

Shortly after our mandate was issued, on April 1, 2014, the trial court entered its Amended Judgment that simply stated:

Pursuant to the opinion issued in Case Number WD75533 and WD75534, judgment is hereby ordered in favor of Developers Surety and Indemnity Company.

IT IS SO ORDERED.

On April 23, 2014, DSI filed its Motion to Amend the Judgment, asking the trial court to amend its judgment to specify how much DSI was entitled to collect from Appellants.

On June 25, 2014, the trial court entered its Second Amended Judgment in favor of DSI and against Appellants, awarding $57,000.00 in damages and $144,000.00 in attorneys' fees and costs. The Appellants bring four points on appeal.

In their first point, Appellants contend that the trial court lacked any authority to enter its Second Amended Judgment because it was filed beyond the thirty days provided for in Rule 75.01. They argue that DSI's motion to amend was not an “authorized after-trial motion” that would serve to extend that time period.

“The trial court's authority to enter amended judgments is a question of law which we review de novo .” State ex rel. Missouri Parks Ass'n v. Missouri Dep't of Nat. Res., 316 S.W.3d 375, 381 (Mo.App.W.D.2010). “Rule 75.01 provides that a trial court retains control over its judgment during the thirty day period after it is entered ‘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.’ ” In re Marriage of Noles, 343 S.W.3d 2, 6 (Mo.App.S.D.2011). “If no authorized after-trial motion is filed within that time period, the judgment becomes final thirty days after entry of the judgment.” Payne v. Markeson, 414 S.W.3d 530, 536 (Mo.App.W.D.2013). If a party timely files an authorized after-trial motion,¹ however, “Rule 81.05(a)(2)(A) permits the trial court up to ninety days from the date the motion was filed to rule upon the motion, after which the motion is deemed denied under Rule 78.06.” In re Marriage of Noles, 343 S.W.3d at 6 (internal quotation omitted). This continued authority is limited to remediating matters raised in the motion. Id.

Contrary to Appellants' assertion on appeal, “[a] motion to amend, if filed within thirty days after judgment is entered, is an authorized after-trial motion that extends the circuit court's control over its judgment for up to 90 days from the date the motion was filed.” Hanna v. Hanna, 446 S.W.3d 753, 755 (Mo.App.W.D.2014) ; Medlin v. RLC, Inc., 423 S.W.3d 276, 283 (Mo.App.S.D.2014) ; see also Payne, 414 S.W.3d at 538 (“A ‘motion to amend’ filed pursuant to Rule 78.04 is an authorized after-trial motion.”); Dudley v. Southern Union Co., 261 S.W.3d 598, 601 (Mo.App.W.D.2008) (“A motion to amend the judgment is an authorized post-trial motion.”); Bur t on v. Klaus, 455 S.W.3d 9, 11–12, 2014 WL 535781, at *2–3 (Mo.App.E.D.2014) (noting that the Missouri Supreme Court has recognized that a motion to amend the judgment pursuant to Rule 78.04 is one of six “authorized after-trial motions” expressly provided for in the rules); Glandon v. Daimler Chrysler Corp., 142 S.W.3d 174, 177 (Mo.App.E.D.2004) (citing Taylor v. United Parcel Serv., Inc., 854 S.W.2d 390, 392 n. 1 (Mo. banc 1993) ).

Appellants' contention that DSI's motion cannot be deemed an “after-trial motion” because it was filed on remand following appeal, rather than immediately after trial, is wholly without merit. The trial court's initial judgment having been reversed, the first amended judgment was the judgment in this case. Rule 78.04 affords a party thirty days from the entry of judgment to file a motion to amend. Payne, 414 S.W.3d at 536. Under Rule 78.04, it does not matter how long after trial the trial court enters judgment, merely that the motion to amend be filed within thirty days of the entry of the judgment. The purpose of the rule is to allow a party to point out errors or deficiencies in the current judgment and to afford the trial court an opportunity to correct the judgment through amendment. Appellant's motion to amend the first amended judgment was, most certainly, an authorized, timely-filed, after-trial motion upon which the trial court had ninety days to act. Point denied.

In their second point, Appellants claim that the trial court erred in awarding any attorney's fees to DSI because this Court's mandate did not reference attorney's fees and only allowed for an award of costs on appeal. Similarly, in their third point, Appellants contend that the trial court erred in awarding DSI reimbursement for the settlement amount paid to the excavation company because the mandate did not specify that DSI should be awarded reimbursement for such amounts and only provided for an award of costs on appeal. Appellants argue that this Court's mandate was specific, rather than general, and that, pursuant to this Court's opinion and mandate, the trial court could only declare that judgment was being entered in favor of DSI and could not award DSI anything other than costs on appeal, which were specifically awarded by this Court to DSI in our mandate.

“The scope of the trial court's authority on remand is defined by our mandate,” and “[t]he trial court must render judgment in accord with our mandate and opinion.” Gerken v. Sherman, 351 S.W.3d 1, 6 (Mo.App.W.D.2011). “The mandate communicates the judgment to the trial court, and the opinion, which is a part thereof, serves in an interpretative function.” Id. (internal quotation omitted). “Thus, when determining its authority on remand, the trial court should be guided not only by the mandate, but also by the opinion and result contemplated by the appellate court.” Jenkins v. Jenkins, 406 S.W.3d 919, 924 (Mo.App.W.D.2013) (internal quotation omitted). “Whether the trial court followed the mandate is a question [of law] we review de novo. ” Gerken, 351 S.W.3d at 6.

“A remand may be one of two types: (1) a general remand, which does not provide specific direction and leaves all issues open to consideration in the new trial; and (2) a remand with directions, which requires the trial court to enter a judgment in conformity with the mandate.” Id. “A general remand leaves all issues not conclusively decided open for consideration at the new trial.” Abt v. Mississippi Lime Co., 420 S.W.3d 689, 697 (Mo.App.E.D.2014) (emphasis omitted). “On the other hand, where the mandate contains express instructions that direct the trial court to take a specified action, the court has no authority to deviate from those instructions.” Id. Any act by the trial court that diverges from those instructions is void. Gerken, 351 S.W.3d at 6.

In our prior opinion, after holding that the trial court erred as a matter of law by concluding that the indemnity agreement was invalid, this Court declared, “The judgment of the trial court is reversed, and the cause is remanded for entry of judgment in favor of DSI.” Woods of Somerset, 422 S.W.3d at 336. Our mandate, which was subsequently issued by the Clerk of this Court states, in its entirety:

Now on this day the judgment is reversed, and the cause is remanded to the Circuit Court of Jackson County for further proceedings in conformity with the opinion of this Court. The Appellant shall recover against the Respondents the costs and charges herein expended, and shall have execution therefor.

Opinion filed.

Appellants argue that, based upon the foregoing language from the mandate and the opinion, the trial court could do no more than declare that it was entering judgment in favor of DSI, as it did in its first amended judgment, and to award DSI its costs on appeal. They contend that, because “costs” do not include attorney's fees under Missouri case law, the trial court's award of attorney's fees improperly exceeded the scope of the mandate. They further claim that any award for reimbursement of settlement costs exceeded the scope of the mandate because they were not specifically mentioned therein.

Our mandate, reversing and remanding for further proceedings consistent with the opinion, is decidedly general. The opinion itself, however, contains a specific instruction that the trial court should enter judgment in favor of DSI. However, even assuming, arguendo, that the instruction for entry of judgment in our opinion rendered our mandate a specific one, on the record before us, we cannot conclude that...