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Burke v. McHenry

Court of Appeals of Missouri, Western District, Third Division

October 8, 2019

TOM BURKE, Appellant,
v.
CARMEN MCHENRY and JACOB MCHENRY, Respondents.

          APPEAL FROM THE CIRCUIT COURT OF PLATTE COUNTY, MISSOURI THE HONORABLE THOMAS CLARK FINCHAM, JUDGE

          Before: Alok Ahuja, Presiding Judge, Edward R. Ardini, Jr., Judge and Thomas N. Chapman, Judge

          EDWARD R. ARDINI, JR., JUDGE.

         Tom Burke ("Burke") appeals the judgment of the Circuit Court of Platte County awarding Carmen McHenry and Jacob McHenry (individually, "Carmen" and "Jacob," and collectively, "the McHenrys") attorney's fees and lost rental income from a supersedeas bond posted by Burke. We affirm in part and reverse in part.

         Factual and Procedural Background

         Burke purchased real property in Platte County in the early 1980s, which now consists of over ninety acres and includes three residences and a number of other buildings such as sheds and garages (the "Farm"). Burke resided on the Farm from the time he purchased it until 2014, but was regularly away over three hundred nights a year due to his cattle auction business. In 2001, Burke invited Carmen, his biological daughter, to live on the Farm with her family.[1] The McHenrys have lived on the Farm since that time. In December 2003, Burke executed and recorded deeds transferring his interest in the Farm and in a separate parcel in Smithville, Missouri (the "Smithville Property") to Carmen.

         From 2003 to 2014, Burke continued to pay the real estate taxes and property insurance on both properties. In 2014, Burke sent a letter to Carmen informing her that he was leaving the Farm and the McHenrys were to takeover payment of property-related expenses moving forward, which they did. In 2016, Burke requested that Carmen deed the properties back to him. Carmen refused to transfer her interest in the Farm because she lived there with her family, but she did transfer the Smithville Property to Burke.

         Burke filed an action in the Circuit Court of Platte County against the McHenrys seeking to quiet title to the Farm, alleging breach of an oral agreement and asserting claims for unjust enrichment and specific performance. The McHenrys counterclaimed, seeking to quiet title in their favor. Following a bench trial, the trial court entered judgment quieting title in the McHenrys and denying all other relief. The judgment also ordered that "each party shall be responsible for their individual costs of this litigation, including but not limited to, reasonable attorney's fees and that Defendants Jacob McHenry and Carmen McHenry shall be responsible for any Court costs associated with this litigation."

         Burke appealed the trial court's judgment and sought leave of this Court to file a supersedeas bond pursuant to Rule 81.10.[2] The McHenrys opposed the request. This Court granted Burke's motion and remanded to the trial court "for the purpose of fixing the amount of the supersedeas bond, approval of the form of the bond and the surety or sureties thereon in conformity with Rule 81.09." After hearing evidence, [3] the trial court set the bond at $25, 000.00.

         This Court affirmed the trial court's judgment in case number WD80589. Following issuance of our mandate, [4] the McHenrys filed with the trial court a motion for judgment against Burke's appeal bond. The motion sought "damages arising from the delay of the execution of their judgment" under two categories: 1) attorney's fees in the amount of $12, 639.55 and 2) lost rental income for a cottage located on the Farm in the amount of $11, 200.00. The motion was accompanied by an affidavit executed by the McHenrys relating to their claim for attorney's fees (together with a copy of a detailed invoice from counsel's law firm). In addition, the affidavit referenced Carmen McHenry's previous testimony to the trial court concerning the lost rental income for the cottage and provided additional facts relevant to that claim.

         A hearing on the McHenrys's motion was held at which no witnesses testified, but the trial court was requested to take judicial notice of Carmen's prior testimony relating to lost rental income. The trial court issued a judgment against Burke's supersedeas bond in the amount of $23, 839.55. Burke appeals from that judgment.

         Discussion

         Burke raises two points on appeal: In Point I, Burke argues that the trial court misapplied the law when it awarded the McHenrys their attorney's fees incurred during the original appeal in this matter from his supersedeas bond. In Point II, Burke argues that the trial court's award of lost rental income to the McHenrys was not supported by substantial evidence.

         Point I - Award of ...


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