Developers Surety and Indemnity Company v. Woods of Somerset, LLC.
455 S.W.3d 487
Mo. Ct. App.2015Background
- DSI issued a payment bond for a subdivision after Appellants (Woods of Somerset LLC and individual guarantors) executed an indemnity agreement; an excavation subcontractor sued for unpaid work and DSI defended and paid a settlement.
- DSI sued Appellants on the indemnity agreement seeking indemnification and specific performance; the trial court found the indemnity agreement unenforceable and entered judgment for Appellants.
- This Court reversed, holding the indemnity agreement valid and enforceable, and remanded for entry of judgment in favor of DSI; the mandate awarded costs to DSI on appeal.
- On remand the trial court entered an amended judgment in favor of DSI; after DSI moved to clarify damages, the court entered a second amended judgment awarding $57,000 in damages and $144,000 in attorneys’ fees and costs to DSI.
- Appellants appealed, challenging (1) the trial court’s authority to amend after 30 days, (2) awards of attorney’s fees, (3) reimbursement of settlement amounts, and (4) inclusion of appellate fees in the fee award.
- The Court affirmed the trial court: it held the motion to amend timely extended the court’s authority; the remand and opinion permitted entry of judgment awarding indemnity and related relief; Appellants failed to supply the record items needed to show the award exceeded the mandate; and Appellants did not prove the fee award included appellate fees.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court lost authority to amend judgment under Rule 75.01 | DSI: motion to amend was timely filed within 30 days of the amended judgment and extended court's control | Appellants: motion was not an authorized after-trial motion and was untimely (filed after remand) | Motion to amend is an authorized after-trial motion if filed within 30 days of judgment; court had 90 days to act — point denied |
| Whether trial court exceeded scope of appellate mandate by awarding attorneys’ fees | DSI: prior opinion/mandate allowed entry of judgment for indemnity and related relief, including fees if claimed in petition | Appellants: mandate was specific and only permitted judgment in favor of DSI plus costs on appeal (not attorneys’ fees or settlement reimbursement) | Mandate was general; opinion contemplated indemnity/specific performance; record omissions force appellate court to presume omitted materials favor DSI; award did not exceed mandate — point denied |
| Whether trial court erred awarding reimbursement of settlement paid to subcontractor | DSI: petition sought indemnification for payments/settlements under the indemnity agreement | Appellants: mandate did not authorize reimbursement for settlement payments | Record lacked petition in the appellate record; court presumed omitted material supported DSI’s claimed relief; point denied |
| Whether trial court erred by including appellate attorney’s fees without Rule XXIX motion to this Court | Appellants: DSI failed to file a motion in this Court for appellate fees, so fees for appellate work cannot be awarded | DSI: indemnity agreement entitles it to attorneys’ fees on appeal; trial court should determine reasonable appellate fees | Appellants failed to show the judgment actually included appellate fees; Court granted DSI’s motion for appellate fees and remanded to trial court to determine amount — point denied |
Key Cases Cited
- State ex rel. Missouri Parks Ass’n v. Missouri Dep’t of Nat. Res., 316 S.W.3d 375 (Mo. App. W.D.) (trial court authority to amend judgment reviewed de novo)
- In re Marriage of Noles, 343 S.W.3d 2 (Mo. App. S.D.) (Rule 75.01 and timing for after-trial relief)
- Payne v. Markeson, 414 S.W.3d 530 (Mo. App. W.D.) (finality of judgment absent authorized after-trial motion)
- Hanna v. Hanna, 446 S.W.3d 753 (Mo. App. W.D.) (motion to amend is an authorized after-trial motion extending court control)
- Gerken v. Sherman, 351 S.W.3d 1 (Mo. App. W.D.) (scope of trial court authority on remand follows appellate mandate)
- Wagner v. Bondex Int’l, Inc., 368 S.W.3d 340 (Mo. App. W.D.) (appellate review limited to record on appeal)
- Cowbell, LLC v. BORC Bldg. & Leasing Corp., 328 S.W.3d 399 (Mo. App. W.D.) (contractual right to attorneys’ fees on appeal may be awarded)
- Baker v. Department of Mental Health, 408 S.W.3d 228 (Mo. App. W.D.) (trial court better suited to determine reasonable appellate fee amounts)