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Allen v. Atain Specialty Insurance Co.

Court of Appeals of Missouri, Western District, Third Division

June 18, 2019


          Appeal from the Circuit Court of Jackson County, Missouri The Honorable John M. Torrence, Judge

          Before Mark D. Pfeiffer, Presiding Judge, Lisa White Hardwick, Judge, Anthony Rex Gabbert, Judge

          Anthony Rex Gabbert, Judge


         Appellant Franklin D. Allen appeals the trial court's order and judgment which held that the court lacked jurisdiction to address alleged unresolved claims in Allen's garnishment action against Atain Specialty Insurance Company (hereinafter "Atain"). In his sole point on appeal, Allen claims the circuit court erred in finding that a Supreme Court mandate addressing his garnishment claim for a wrongful refusal to defend left it with no jurisdiction to address bad faith claims in that garnishment action. We affirm.


         In 2012, Wayne Bryers, acting in his capacity as a property manager and armed security guard, was escorting Franklin Allen off of the premises of Sheridan Apartments. Bryers accidentally shot Allen, severing Allen's spinal cord and rendering him a paraplegic. Allen brought a suit for damages which eventually resulted in a $16 million judgment against Bryers.

         Atain was the insurer for Mr. Bryers's employer, Sheridan Apartments. During the initial lawsuit between Allen and Bryers, Atain declined to defend Bryers and filed multiple declaratory judgment actions seeking a declaration stating that the insurance policy did not offer Bryers coverage. Atain abandoned its declaratory judgment actions and never obtained a declaration releasing it from its obligations under the policy.

         After securing his judgment against Bryers, Allen filed a Rule 90 garnishment action listing Bryers as the debtor and Atain as the garnishee. Allen's exceptions, objections, and denials of Atain's interrogatory answers alleged that Atain wrongfully refused to defend Bryers, refused to settle in bad faith, and refused to defend Bryers in bad faith. Allen moved for summary judgment on his claim for garnishment. In granting summary judgment, the circuit court found that Atain wrongfully refused to defend Bryers.[1] The circuit court then awarded Allen the full $16 million from his tort judgment against Bryers, far in excess of Atain's $1 million policy limit. Atain appealed, first to this Court, and then to our Supreme Court.

         The Supreme Court affirmed and modified the judgment, holding, inter alia, that Atain was bound by the results of the underlying litigation where it refused to defend Bryers, and that Atain also had to pay post-judgment interest on the entire $16 million judgment. See Allen v. Bryers, 512 S.W.3d 17 (Mo. banc 2016), as modified (Apr. 4, 2017), reh'g denied (Apr. 4, 2017). The Court modified the lower court's judgment by reducing the award to the policy limits of $1 million, explaining that because the circuit court did not find that Atain acted in bad faith, it exceeded its authority in granting the full $16 million. Id. at 39-40. Allen filed a motion for rehearing or to modify the judgment. In his motion, Allen argued, among other things, that "the issue of whether Atain acted in bad faith was not resolved by the [circuit court's] modified judgment granting Franklin Allen's motion for summary judgment and this matter should be remanded to the garnishment court for a trial on the issue of Atain's bad faith." The Supreme Court denied Allen's motion. By its own motion, the Court modified its opinion and mandate on April 4, 2017. Id. In its modified opinion, the Court remanded the matter to the circuit court "for entry of a judgment awarding Allen $1 million plus post-judgment interest on the entire $16 million underlying tort judgment until Insurer pays, offers to pay, or deposits in court its $1 million policy limit." Id. at 39.

         Upon remand, in June 2017, the circuit court calculated the post-judgment interest and entered judgment of $1 million plus interest on the $16 million underlying tort judgment. In November of 2017, after the judgment was satisfied, Allen then moved the court to set a trial date for his bad faith claims. The court declined to do so in an order dated April 4, 2018, explaining that the Supreme Court's mandate left it with no authority to do anything other than enter judgment as it already had. Allen then filed his notice of appeal on April 13, 2018. This Court, having noticed that the circuit court's April of 2018 order was not denominated a judgment, requested suggestions from the parties. Both parties responded, and Allen moved the circuit court to denominate its April order a judgment. The circuit court sustained the motion, but did not file a properly labeled final judgment until June of 2018. Atain filed a motion to dismiss on May 11, 2018, which was taken with the case.


         We first address the timeliness of Allen's appeal. When he filed his notice of appeal, the court's April 4, 2018 order which he was appealing did not meet the requirements of Rule 74.01 for final, appealable judgments. However, the court eventually denominated its order as a final judgment. Rule 81.05 clearly states that appeals filed prematurely are deemed timely filed once the court enters a final judgment which comports with the requirements of Rule 74. Therefore, Allen's appeal of the court's April 4, 2018 order is timely. However, in its motion to dismiss and in its brief, Atain argues that the court's June 2017 judgment, entered immediately after remand from the Supreme Court, was the final judgment in this case, and, therefore, Allen's failure to appeal that judgment in a timely fashion means his appeal is now time barred.

         "A final judgment is a prerequisite for appeal. Absent a final judgment, there is no appellate review…" Green v. State, 494 S.W.3d 525, 527-528 (Mo. banc 2016) (citation omitted) (superseded on other grounds). "The principle that 'a final, appealable judgment is ordinarily one that disposes of all parties and all the issues in the case' is 'as applicable to garnishment cases as to others.'" McGathey v. Davis, 457 S.W.3d 867, 873 (Mo. App. 2015) (citation omitted). "A final judgment is one that resolves all claims and issues in a case, leaving nothing for future determination." Green, 494 S.W.3d at 527. To be a final judgment on a claim, a judgment must dispose of all counts in a plaintiff's pleadings, and not just rule "on some of several issues arising out of the same ...

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