           IN THE MISSOURI COURT OF APPEALS
                    WESTERN DISTRICT
DEVELOPERS SURETY AND INDEMNITY                )
COMPANY,                                       )
                                               )
             Respondent,                       )
                                               )
      v.                                       )   WD77792
                                               )
WOODS OF SOMERSET, LLC, ET AL.,                )   Opinion filed: March 3, 2015
                                               )
             Appellant.                        )

     APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY, MISSOURI
                 The Honorable James F. Kanatzer, Judge

            Before Division Two: Anthony Rex Gabbert, Presiding, Judge,
               Joseph M. Ellis, Judge and Karen King Mitchell, Judge


      This case arises from claims brought by Developers Surety and Indemnity

Company ("DSI") against Daniel Waldberg, Brenda Waldberg, Barney Ashner, Marlene

Ashner, and Woods of Somerset, LLC ("Appellants") related to an indemnity agreement

Appellants executed in order to obtain a payment bond from DSI for the development of

a subdivision. After an excavation company filed suit seeking payment for work that

had been performed at the subdivision, DSI filed cross-claims and third-party claims

against Appellants based upon the indemnity agreement, asserting that DSI was

entitled to indemnification and specific performance of the indemnity agreement.
       The trial court eventually entered judgment in favor of the Appellants on DSI’s

claims, concluding that the indemnity agreement was unenforceable because it was not

properly executed and because there was no meeting of the minds. On appeal, this

Court held that the indemnity agreement was unambiguous, valid, and enforceable.

Accordingly, we reversed the judgment, and the cause was remanded to the trial court

for entry of judgment in favor of DSI. Woods of Somerset, LLC v. Developers Sur. &

Indem. Co., 422 S.W.3d 330, 336 (Mo. App. W.D. 2013).

       Shortly after our mandate was issued, on April 1, 2014, the trial court entered its

Amended Judgment that simply stated:

            Pursuant to the opinion issued in Case Number WD75533 and
       WD75534, judgment is hereby ordered in favor of Developers Surety and
       Indemnity Company.
            IT IS SO ORDERED.

On April 23, 2014, DSI filed its Motion to Amend the Judgment, asking the trial court to

amend its judgment to specify how much DSI was entitled to collect from Appellants.

       On June 25, 2014, the trial court entered its Second Amended Judgment in favor

of DSI and against Appellants, awarding $57,000.00 in damages and $144,000.00 in

attorneys’ fees and costs. The Appellants bring four points on appeal.

       In their first point, Appellants contend that the trial court lacked any authority to

enter its Second Amended Judgment because it was filed beyond the thirty days

provided for in Rule 75.01.     They argue that DSI’s motion to amend was not an

“authorized after-trial motion” that would serve to extend that time period.

       “The trial court’s authority to enter amended judgments is a question of law which

we review de novo.” State ex rel. Missouri Parks Ass’n v. Missouri Dep’t of Nat.

Res., 316 S.W.3d 375, 381 (Mo. App. W.D. 2010). “Rule 75.01 provides that a trial


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court retains control over its judgment during the thirty day period after it is entered ‘and

may, after giving the parties an opportunity to be heard and for good cause, vacate,

reopen, correct, amend, or modify its judgment within that time.’” In re Marriage of

Noles, 343 S.W.3d 2, 6 (Mo. App. S.D. 2011). “If no authorized after-trial motion is filed

within that time period, the judgment becomes final thirty days after entry of the

judgment.” Payne v. Markeson, 414 S.W.3d 530, 536 (Mo. App. W.D. 2013). If a party

timely files an authorized after-trial motion,1 however, “Rule 81.05(a)(2)(A) permits the

trial court up to ninety days from the date the motion was filed to rule upon the motion,

after which the motion is deemed denied under Rule 78.06.” In re Marriage of Noles,

343 S.W.3d at 6 (internal quotation omitted).                This continued authority is limited to

remediating matters raised in the motion. Id.

        Contrary to Appellants’ assertion on appeal, “[a] motion to amend, if filed within

thirty days after judgment is entered, is an authorized after-trial motion that extends the

circuit court’s control over its judgment for up to 90 days from the date the motion was

filed.” Hanna v. Hanna, 446 S.W.3d 753, 755 (Mo. App. W.D. 2014); Medlin v. RLC,

Inc., 423 S.W.3d 276, 283 (Mo. App. S.D. 2014); see also Payne, 414 S.W.3d at 538

(“A ‘motion to amend’ filed pursuant to Rule 78.04 is an authorized after-trial motion.”);

Dudley v. Southern Union Co., 261 S.W.3d 598, 601 (Mo. App. W.D. 2008) (“A motion

to amend the judgment is an authorized post-trial motion.”); Buron v. Klaus, 2014 WL

535781, at *2-3 (Mo. App. E.D. 2014) (noting that the Missouri Supreme Court has

recognized that a motion to amend the judgment pursuant to Rule 78.04 is one of six

“authorized after-trial motions” expressly provided for in the rules); Glandon v.

1
 “[A]n ‘authorized after-trial motion’ is a motion for which the rules expressly provide.” Taylor v. United
Parcel Serv., Inc., 854 S.W.2d 390, 392 n.1 (Mo. 1993); see also Glandon v. DaimlerChrysler Corp.,
142 S.W.3d 174, 177 (Mo. App. E.D. 2004).

                                                     3
DaimlerChrysler Corp., 142 S.W.3d 174, 177 (Mo. App. E.D. 2004) (citing Taylor v.

United Parcel Serv., Inc., 854 S.W.2d 390, 392 n.1 (Mo. banc 1993)).

      Appellants’ contention that DSI’s motion cannot be deemed an “after-trial motion”

because it was filed on remand following appeal, rather than immediately after trial, is

wholly without merit. The trial court’s initial judgment having been reversed, the first

amended judgment was the judgment in this case. Rule 78.04 affords a party thirty

days from the entry of judgment to file a motion to amend. Payne, 414 S.W.3d at 536.

Under Rule 78.04, it does not matter how long after trial the trial court enters judgment,

merely that the motion to amend be filed within thirty days of the entry of the judgment.

The purpose of the rule is to allow a party to point out errors or deficiencies in the

current judgment and to afford the trial court an opportunity to correct the judgment

through amendment. Appellant’s motion to amend the first amended judgment was,

most certainly, an authorized, timely-filed, after-trial motion upon which the trial court

had ninety days to act. Point denied.

      In their second point, Appellants claim that the trial court erred in awarding any

attorney’s fees to DSI because this Court’s mandate did not reference attorney’s fees

and only allowed for an award of costs on appeal. Similarly, in their third point,

Appellants contend that the trial court erred in awarding DSI reimbursement for the

settlement amount paid to the excavation company because the mandate did not

specify that DSI should be awarded reimbursement for such amounts and only provided

for an award of costs on appeal.        Appellants argue that this Court’s mandate was

specific, rather than general, and that, pursuant to this Court’s opinion and mandate, the

trial court could only declare that judgment was being entered in favor of DSI and could



                                             4
not award DSI anything other than costs on appeal, which were specifically awarded by

this Court to DSI in our mandate.

      “The scope of the trial court’s authority on remand is defined by our mandate,”

and “[t]he trial court must render judgment in accord with our mandate and opinion.”

Gerken v. Sherman, 351 S.W.3d 1, 6 (Mo. App. W.D. 2011).                     “The mandate

communicates the judgment to the trial court, and the opinion, which is a part thereof,

serves in an interpretative function.”   Id. (internal quotation omitted).    “Thus, when

determining its authority on remand, the trial court should be guided not only by the

mandate, but also by the opinion and result contemplated by the appellate court.”

Jenkins v. Jenkins, 406 S.W.3d 919, 924 (Mo. App. W.D. 2013) (internal quotation

omitted). “Whether the trial court followed the mandate is a question [of law] we review

de novo.” Gerken, 351 S.W.3d at 6.

      “A remand may be one of two types: (1) a general remand, which does not

provide specific direction and leaves all issues open to consideration in the new trial;

and (2) a remand with directions, which requires the trial court to enter a judgment in

conformity with the mandate.” Id. “A general remand leaves all issues not conclusively

decided open for consideration at the new trial.” Abt v. Mississippi Lime Co., 420

S.W.3d 689, 697 (Mo. App. E.D. 2014) (emphasis omitted). “On the other hand, where

the mandate contains express instructions that direct the trial court to take a specified

action, the court has no authority to deviate from those instructions.” Id. Any act by the

trial court that diverges from those instructions is void. Gerken, 351 S.W.3d at 6.

      In our prior opinion, after holding that the trial court erred as a matter of law by

concluding that the indemnity agreement was invalid, this Court declared, “The



                                            5
judgment of the trial court is reversed, and the cause is remanded for entry of judgment

in favor of DSI.” Woods of Somerset, 422 S.W.3d at 336. Our mandate, which was

subsequently issued by the Clerk of this Court states, in its entirety:

                 Now on this day the judgment is reversed, and the cause is
          remanded to the Circuit Court of Jackson County for further proceedings
          in conformity with the opinion of this Court. The Appellant shall recover
          against the Respondents the costs and charges herein expended, and
          shall have execution therefor.
                 Opinion filed.

Appellants argue that, based upon the foregoing language from the mandate and the

opinion, the trial court could do no more than declare that it was entering judgment in

favor of DSI, as it did in its first amended judgment, and to award DSI its costs on

appeal.     They contend that, because “costs” do not include attorney’s fees under

Missouri case law, the trial court’s award of attorney’s fees improperly exceeded the

scope of the mandate.        They further claim that any award for reimbursement of

settlement costs exceeded the scope of the mandate because they were not specifically

mentioned therein.

       Our mandate, reversing and remanding for further proceedings consistent with

the opinion, is decidedly general.     The opinion itself, however, contains a specific

instruction that the trial court should enter judgment in favor of DSI. However, even

assuming, arguendo, that the instruction for entry of judgment in our opinion rendered

our mandate a specific one, on the record before us, we cannot conclude that the trial

court’s final judgment deviated from our instruction or otherwise failed to conform to our

mandate.

       The phrase “for entry of judgment in favor of DSI,” contained in this Court’s prior

opinion, can only be understood in the context of the claims brought and the relief


                                             6
requested in DSI’s petition in the underlying action. In our opinion, we generally note

that DSI’s petition asserted claims for indemnity and specific performance, and we

subsequently held that DSI was entitled to judgment in its favor. Id. at 333, 336. Thus,

our opinion clearly contemplated the entry of a judgment in favor of DSI awarding some

amount of indemnity and/or declaring rights and ordering specific performance of the

indemnity agreement.

      Whether the trial court’s judgment exceeded the scope of indemnity and/or

specific performance requested in the petition cannot be assessed by this Court on

appeal because a copy of the petition has not been included in the record on appeal for

our review.   Accordingly, this Court cannot determine whether DSI’s petition raised

claims that would allow for reimbursement of attorney’s fees and/or a declaration that

DSI is entitled to indemnity for attorney’s fees from Appellants. Likewise, we cannot

know if DSI requested relief that would include indemnification for settlement costs and

expenses and/or a declaration that DSI is entitled to indemnification by Appellants for

such costs.

      “This court’s review is based only on the record on appeal.” Wagner v. Bondex

Int’l, Inc., 368 S.W.3d 340, 357 (Mo. App. W.D. 2012) (internal quotation omitted).

“Appellants bear the burden of supplying the appellate court with the record on appeal,

and that record should contain ‘all of the record, proceedings and evidence necessary

to the determination of all questions to be presented, by either appellant or respondent,

to the appellate court for decision.’” Belden v. Belden, 389 S.W.3d 717, 720 n.3 (Mo.

App. S.D. 2012) (quoting Rule 81.12(a) and citing Rule 81.12(c)). Where necessary

materials are omitted from the record on appeal, the appellate court will assume that the



                                           7
omitted items were unfavorable to the appellant and favorable to the respondent. Id.

Accordingly, in the case at bar, this Court must assume that the relief granted by the

trial court fell within the scope of the relief requested in DSI’s petition.

        In short, this Court’s instructions on remand clearly allowed for the entry of

judgment in favor of DSI on its claims for indemnity and/or specific performance, and

the record before this Court does not establish that the trial court deviated from or acted

contrary to this Court’s instructions. Points denied.

        In their final point on appeal, Appellants assert that the trial court erred in

including in its judgment attorney’s fees incurred by DSI in bringing the original appeal

because DSI did not file a Rule XXIX2 motion for such fees with this Court prior to

submission of that appeal and because our opinion did not specifically award such fees.

In bringing this point, Appellants fail to even establish that the trial court awarded any

attorney’s fees for appellate work, let alone that it erroneously did so.

        The judgment in this case simply awarded DSI $144,000.00 “for attorneys’ fees

and costs.” Thus, it is not readily apparent from the judgment that any of that award

was for appellate attorney’s fees as opposed to those incurred trying the case at the

circuit court level.

        Appellants fail to cite to anything in the record establishing that the attorney’s

fees awarded by the trial court included any amount for work done on appeal.

Furthermore, Appellants fail to indicate in their point relied on or the argument in support

thereof how much of the award they believe to have been for attorney’s fees on appeal



2
  Rule XXIX of the Special Rules of the Western District Court of Appeals provides that “[a]ny party
claiming an amount due for attorney’s fees on appeal pursuant to contract, statute or otherwise and which
this Court has jurisdiction to consider, must file a separate written motion before submission of the case.”

                                                     8
or to provide an explanation of the basis for their belief that appellate attorney’s fees

were included in the award.

       Having failed to establish that the trial court even committed the act about which

they complain, Appellants most certainly cannot establish reversible error.          Point

denied.

       Finally, pursuant to Local Rule XXIX, Respondent has moved for an award of

attorney fees and expenses incurred in this appeal. “With respect to attorney fees on

appeal, a party may be allowed to recover these fees if they are based upon a written

agreement that is the subject of the issues that are presented in the appeal.” Cowbell,

LLC v. BORC Bldg. & Leasing Corp., 328 S.W.3d 399, 407 (Mo. App. W.D. 2010)

(internal quotation omitted). In accordance with the indemnity agreement between the

parties, Respondent is entitled to its attorney’s fees and expenses on appeal.

Consequently, Respondent’s motion is granted.

       “While we have the authority to award attorney fees on appeal, we exercise this

power with caution.” Id. at 407-08 (internal quotation omitted). “The trial court is better

equipped to hear evidence and argument on the issue of attorney’s fees incurred on

appeal.” Baker v. Department of Mental Health, 408 S.W.3d 228, 243 (Mo. App. W.D.

2013). We, therefore, remand the cause to the trial court for the purpose of conducting

a hearing to determine and award Respondent’s reasonable fees and expenses

incurred in connection with this appeal.

       For the foregoing reasons, the trial court’s judgment is affirmed.        Because

Respondent’s motion for attorney’s fees and expenses on appeal is granted, the cause

is remanded to the trial court for further proceedings related to that motion.



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                       ________________________________
                       Joseph M. Ellis, Judge
All concur.




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