Opinion
No. ED 82467
August 26, 2003
Appeal from the Circuit Court of the City of St. Louis, Honorable Jimmie M. Edwards.
Richard E. Banks, Jeffrey P. Gault, Vincent A. Banks, III, John D. Warner, Jr., Banks Associate, P.C., Gault Warner, LLC, Clayton, MO, for Appellant.
James E. Whaley, T. Michael Ward, Brown James, P.C., St. Louis, MO, for Repondent.
Before Gary M. Gaertner, Sr., P.J., Mary R. Russell, J. and Paul J. Simon, Sr. J.
Appellant, Bryant Moore, Jr., by his next friend and father, Bryant Moore, Sr., ("Moore") appeals from the judgment of the Circuit Court of the City of St. Louis, granting respondent's, Bi-State Development Agency ("Bi-State"), "Motion for Order of Complete Satisfaction of Judgment or in the Alternative, to Amend the Judgment," and denying Moore's "Motion for Order Compelling Defendant to Pay Interest." We affirm.
This case began when Moore filed suit against Bi-State, seeking damages for personal injuries Moore allegedly sustained when Bi-State failed to discharge Moore from a bus in a safe place. For a full factual history of the underlying case, see Moore ex rel. Moore v. Bi-State Dev. Agency, 87 S.W.3d 279 (Mo.App.E.D. 2002). On April 27, 2001, the jury found Moore's total damages were $7,750,000, and assessed 51% fault to Bi-State and 49% fault to Moore. The trial court then entered judgment in favor of Moore against Bi-State for $3,952,000. On May 9, 2001, the trial court granted Bi-State's motion for a set-off, reducing the judgment to $3,890,000. Both parties filed post-trial motions, which were denied. The judgment became final on August 9, 2001.
Bi-State filed a notice of appeal and paid the $50 docket fee on August 15, 2001. Moore filed a notice of appeal on August 17, 2001, but did not pay the docket fee. Moore then filed his brief on March 29, 2002, addressing both Bi-State's appeal and his cross-appeal. Moore filed a second notice of appeal on April 4, 2002 and paid the docket fee.
It was presumed in the underlying appeal that Moore paid the docket fee on April 4, 2002, even though he provided no proof of payment.Moore, 87 S.W.3d at 294. For purposes of this appeal, we will also presume that Moore paid the docket fee as claimed on April 4, 2002.
On April 12, 2002, this Court issued an Order to Show Cause, directing Moore to show proof of payment of the docket fee, and to show cause why his cross-appeal should not be dismissed for lack of jurisdiction for an untimely notice of appeal. Moore argued that because Bi-State had already paid the docket fee, he was therefore not required to pay the docket fee for a cross-appeal. We rejected Moore's argument.
In an opinion dated July 16, 2002, we affirmed the judgment and dismissed Moore's cross-appeal. Id. at 296.
On December 2, 2002, Bi-State paid Moore $3,890,000. Upon receipt of the funds, Moore filed a document entitled "Partial Satisfaction of Judgment." Bi-State then filed its Motion for Order of Complete Satisfaction of Judgment. Bi-State argued that Moore forfeited his right to receive postjudgment interest because Moore filed a notice of appeal. Moore filed his response to Bi-State's motion and his Motion for Order Compelling Defendant to Pay Interest on December 10, 2002. Moore asked the trial court to compel Bi-State to pay interest on the judgment from April 27, 2001 through December 2, 2002 in the amount of $560,160.
The trial court heard the motions on December 12, 2002. The trial court granted Bi-State's motion and denied Moore's motion on January 15, 2003, finding that Moore was not entitled to postjudgment interest. Moore appeals.
In his only point on appeal, Moore argues the trial court erred in finding that he was not entitled to postjudgment interest because the law of the case was that he did not file a valid notice of appeal. We disagree.
The law of the case controls successive appeals involving the same issues and facts, and applies appellate decisions to later proceedings in that case. State v. Johnson, 22 S.W.3d 183, 189 (Mo.banc 2000). The law of the case is any holding in an earlier proceeding, and it precludes re-litigation of issues on remand and subsequent appeal. Id.
We find Moore's reliance on the law of the case misplaced. The issue of whether Moore was entitled to postjudgment interest was not raised inMoore. There is no law of the case regarding whether Moore was entitled to postjudgment interest. Moore argues that by dismissing his cross-appeal in the earlier case we held that he did not file a notice of appeal. However, in Moore, we held that we lacked jurisdiction to hear Moore's cross-appeal because he failed to file a timely notice of appeal. Though his cross-appeal was dismissed because he failed to file a valid notice of appeal because he did not pay the docket fee, there is no dispute that Moore did actually file a notice of appeal and brief his cross-appeal. We could not have dismissed Moore's cross-appeal had he not filed an appeal in the first place.
Next we must determine whether Moore was entitled to postjudgment interest.
"Interest shall be allowed on all money due upon any judgment or order of any court from the day of rendering the same until satisfaction be made by payment, accord or sale of property." Section 408.040.1 RSMo 2000. However, a judgment creditor is not entitled to postjudgment interest when the judgment creditor appeals on the ground of an inadequate recovery in his favor, and the judgment is affirmed on appeal. Investors Title Co. v. Chicago Title Ins., 18 S.W.3d 70, 72 (Mo.App.E.D. 2000). A judgment creditor is not entitled to postjudgment interest in such circumstances because "it was by his own act that the proceeding was delayed and prolonged until such time as judicial sanction of the correctness of the judgment finally culminated in its affirmance by the appellate court." Id. (quoting State ex rel. Southern Real Estate Financial. Co. v. City of St. Louis, 115 S.W.2d 513, 516 (1938). The fact that both parties' appeal does not entitle the judgment creditor to postjudgment interest. Land Clearance Auth. v. Kansas University, 831 S.W.2d 649, 650 (Mo.App.W.D. 1992).
Moore argues this case is distinguishable from the cases concerning postjudgment interest because his cross-appeal was dismissed, whereas the other cases were actually decided on their merits. Under the circumstances of this case, we find this inconsequential. Moore, the judgment creditor, appealed the adequacy of the trial court's judgment, claiming the trial court erroneously submitted contributory fault. Even though Moore's cross-appeal was eventually dismissed for lack of jurisdiction because of an untimely notice of appeal, Moore did in fact file a notice of appeal. Moore addressed both Bi-State's appeal and his cross-appeal in his brief. By filing his notice of cross-appeal, Moore delayed and prolonged the proceeding by limiting Bi-State's potential payment of the judgment. It is not relevant to this analysis that Bi-State also filed a notice of appeal, as we focus only on Moore's actions to determine if he was entitled to postjudgment interest. Point denied.
Based upon the foregoing, we affirm the judgment of the trial court.
Mary R. Russell, J. and Paul J. Simon, Sr. J. concur.