Court of Appeals of Missouri, Western District, Third Division
FRANKLIN D. ALLEN, Appellant,
ATAIN SPECIALTY INSURANCE COMPANY, Respondent.
from the Circuit Court of Jackson County, Missouri The
Honorable John M. Torrence, Judge
Mark D. Pfeiffer, Presiding Judge, Lisa White Hardwick,
Judge, Anthony Rex Gabbert, Judge
Anthony Rex Gabbert, Judge
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.
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
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.
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. 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.
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.
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.
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.
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