Heifetz v. Apex Clayton, Inc.

554 S.W.3d 389
CourtSupreme Court of Missouri
DecidedJuly 17, 2018
DocketNo. SC 96514
StatusPublished
Cited by25 cases

This text of 554 S.W.3d 389 (Heifetz v. Apex Clayton, Inc.) is published on Counsel Stack Legal Research, covering Supreme Court of Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Heifetz v. Apex Clayton, Inc., 554 S.W.3d 389 (Mo. 2018).

Opinion

Facts and Procedural Background

The 8182 Maryland Associates Limited Partnership was created in 1984. The purpose of the partnership was to acquire, construct, lease, and operate various structures, including an office building and parking garage in the downtown Clayton business district. The partnership agreement listed Apex as the general partner along with several limited partnerships, including PS Maryland Avenue Associates ("PSMI") and PS Maryland Avenue Associates II ("PSMII"). Some of the limited partners were partners in PSMI and PSMII.

The partnership agreement included a provision requiring Apex to distribute "available cash flow" at "reasonable intervals during the fiscal year." The partnership agreement also included a forced sale clause, which required Apex, as the general partner, to purchase the limited partners' interests if the limited partners collectively desired to liquidate the partnership and sell the project.

*392In 1993, PSMI and PSMII were dissolved, and the partnership agreement was amended. Mr. Heifetz, Mr. Chervitz, and Mr. Stone were substituted in place of PSMI, and Mr. Heifetz, Mr. Chervitz, Ronald Lurie, Nancy Lurie, and the Stones were substituted in place of PSMII. In July 1993, the partnership agreement was further amended to include Mr. Gershman, Mr. Spewak, the Maylacks, and Jeffrey Michelman as substituted limited partners. The amendments to the partnership agreement provided the substituted limited partners would be "subject to and bound by all provisions of the Partnership Agreement as if he were originally a party to the Partnership Agreement."

In 2005, Mr. Heifetz, Mr. Gershman, Mr. Michelman, Mr. Spewak, and the Stones advised Apex of their intent to exercise the partnership agreement's forced-sale clause. When Apex declined, they filed suit, alleging Apex breached the partnership agreement and its fiduciary duty to them by not carrying out the forced-sale clause. The circuit court entered summary judgment in favor of Apex, and the court of appeals affirmed the judgment, finding not all of the limited partners to the partnership agreement expressed a desire to invoke the forced-sale clause. See Heifetz v. Novelly , 309 S.W.3d 333 (Mo. App. 2010).

In 2010, the limited partners again informed Apex of their desire to exercise the forced-sale clause. Apex declined, and the limited partners filed the current underlying lawsuit alleging Apex breached the partnership agreement when it refused to comply with the forced-sale clause and breached its fiduciary duties by failing to make the required cash flow distributions under the partnership agreement.2

In 2015, the case proceeded to trial. The jury found in favor of the limited partners and awarded them $2,804,689 on the breach of contract claim, nominal damages of $1,000 to each partner on the breach of fiduciary duty claim, and $2.8 million in punitive damages. The trial court entered its judgment consistent with the jury's verdict on June 26, 2015.

On July 24, 2015, the limited partners filed a motion for attorney fees. On July 27, 2015, Apex filed its timely motion for JNOV in which it challenged the submissibility of the limited partners' breach of fiduciary duty claim and whether the limited partners made a submissible case for punitive damages. On October 26, 2015, the trial court overruled Apex's motion for JNOV. On the same date, however, it sustained the limited partners' motion for attorney fees and entered an amended judgment including several additional paragraphs regarding awards of attorney fees.

On November 10, 2015, Apex filed a motion for JNOV with respect to the amended judgment, including a challenge to the award of attorney fees. Because the trial court did not rule on the JNOV motion within 90 days, it was deemed overruled February 8, 2016. Apex filed its notice of appeal February 17, 2016.3 After an opinion by the court of appeals, the case was transferred to this Court. Mo. Const. art. V, sec. 10.

Timely Notice of Appeal

This Court must first address the limited partners' assertion this appeal *393should be dismissed for lack of appellate jurisdiction because Apex failed to timely file its notice of appeal. Rule 81.04(a) requires the notice of appeal to be filed no later than 10 days "after the judgment, decree, or order appealed from becomes final." Rule 81.05(a)(2) provides:

If a party timely files an authorized after-trial motion, the judgment becomes final at the earlier of the following:
(A) Ninety days from the date the last timely motion was filed, on which date all motions not ruled shall be deemed overruled; or
(B) If all motions have been ruled, then the date of ruling of the last motion to be ruled or thirty days after entry of judgment, whichever is later.

Therefore, when a judgment becomes final for purposes of filing a notice of appeal depends, in part, on whether an authorized after-trial motion was filed. This Court has deemed a motion for judgment notwithstanding the verdict and a motion to amend the judgment authorized after-trial motions. See Taylor v. United Parcel Serv., Inc. , 854 S.W.2d 390, 392 n.1 (Mo. banc 1993).

The limited partners assert the judgment entered June 26, 2015, was the final judgment and, when Apex's motion for JNOV was overruled October 26, 2015, Apex had 10 days in which to file its notice of appeal. Because Apex did not file its notice of appeal within 10 days, the limited partners assert it was untimely. In doing so, the limited partners contend the amended judgment was not an actual amended judgment but simply a post-judgment order because a motion for attorney fees is not an authorized after-trial motion and, instead, is a matter incidental to the judgment. The limited partners' assertions, however, are contrary to the position they took at trial and this Court's rules.

First, Rule 75.01 provides: "The trial court retains control over judgments during the thirty-day period after entry of judgment 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." The filing of a timely " 'authorized after-trial motion' extends a trial court's jurisdiction for up to ninety days after the filing of the motion." Massman Constr. Co. v. Mo. Highway & Transp. Comm'n , 914 S.W.2d 801, 802 (Mo. banc 1996) (citing Rule 81.05). "Once the thirty day period in Rule 75.01 expires, a trial court's authority to grant relief is constrained by and limited to the grounds raised in a timely filed, authorized after-trial motion." Id.

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Cite This Page — Counsel Stack

Bluebook (online)
554 S.W.3d 389, Counsel Stack Legal Research, https://law.counselstack.com/opinion/heifetz-v-apex-clayton-inc-mo-2018.