Stewart v. Prudential Life Ins. Co. of America
| Docket Number: | 2009-CA-00090-SCT Linked Case(s): 2009-M-00090-SCT |
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| Supreme Court: | Opinion Link Opinion Date: 09-30-2010 Opinion Author: Carlson, P.J. Holding: Reversed and remanded. |
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| Additional Case Information: |
Topic: Insurance - Costs of appeal bond premiums - Costs for preparing appellate record - M.R.A.P. 36(c) - M.R.A.P. 8(a) - M.R.A.P. 40(a) Judge(s) Concurring: Waller, C.J., Dickinson, Randolph, Lamar and Chandler, JJ. Non Participating Judge(s): Kitchens and Pierce, JJ. Concur in Part, Dissent in Part 1: Graves, P.J., Concurs in Part and Dissents in Part Without Separate Written Opinion Procedural History: Jury Trial; Bench Trial Nature of the Case: CIVIL - OTHER |
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| Trial Court: |
Date of Trial Judgment: 02-12-2009 Appealed from: Hinds County Circuit Court Judge: Winston Kidd Disposition: The trial court originally ruled against Prudential and in favor of the Stewarts to recover proceeds from a life insurance policy. On appeal, this Court reversed the trial court judgment entered in favor of Stewart and entered judgment in favor of Prudential. Costs were taxed to Stewart. As a result, Prudential filed a motion for judgment of the appellate costs. See Miss. R. App. P. 36(c). The trial court granted Prudential’s motion to assess Stewart costs in the amount of $491,428.50. Stewart now appeals that judgment of costs. Case Number: 251-02-1269-CIV |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Patty Stewart, Sally Stewart Hester, Giles Stewart and Larry Stewart, Individually and as Co-Executors of the Estate of Edsel Stewart; and Larry Stewart and Giles Stewart as Co-Trustees of the Stewart Family Life Insurance Trust |
ALEX A. ALSTON, JR. |
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| Appellee: | The Prudential Life Insurance Company of America and Pruco Life Insurance Company, JMB Financial and James Bateman | ROY H. LIDDELL, WALTER D. WILLSON, RICHARD GERALD NORRIS, II | ||
Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Insurance - Costs of appeal bond premiums - Costs for preparing appellate record - M.R.A.P. 36(c) - M.R.A.P. 8(a) - M.R.A.P. 40(a) |
| Summary of the Facts: | Patty Stewart, Sally Stewart Hester, Giles Stewart, and Larry Stewart filed an action against Prudential Insurance Company of America and Pruco Life Insurance Company to recover proceeds from a life insurance policy allegedly due to each of the individual plaintiffs, all of whom were cotrustees in their father’s estate. A judgment was entered against Prudential in the amount of $36,901,638.02. On appeal, the Supreme Court reversed the trial court judgment entered in favor of Stewart and entered judgment in favor of Prudential. Costs were taxed to Stewart. As a result, Prudential filed a motion for judgment of the appellate costs under M.R.A.P. 36(c). The trial court granted Prudential’s motion to assess Stewart costs in the amount of $491,428.50. Stewart appeals. |
| Summary of Opinion Analysis: | Rarely has a prevailing party been denied costs in the absence of a showing of vexatious conduct on their part or that the losing party is incapable of paying the costs. Prudential seeks recovery for costs of its appeal bond premiums as well as costs associated with the circuit clerk preparing the appellate record. Stewart first asserted before the trial court an inability to pay, alleging that payment of costs would “bankrupt some members of the Stewart family. . . .” Stewart, however, offered no evidence to support this assertion. In Stewart’s Amended Response before the trial court, Stewart withdrew the argument that the family and the estate were unable to pay the costs. Nonetheless, Stewart now again makes assertions throughout the appellant’s brief that this assessment of costs will bankrupt the estate. Stewart has waived the argument of inability to pay the costs by excluding it from the Amended Response. Prudential secured a supersedeas bond in the amount of 125% of the total judgment under M.R.A.P. 8(a) in order to stay execution on the judgment. The bond provided for 8% interest each year for an estimated two years, from June 15, 2006, to June 15, 2008. The costs awarded to Prudential totaled $491,428.50, including both the cost of the bond premiums and the costs assessed Prudential by the Hinds County Circuit Court, which stemmed from preparing the record for appeal. There is no evidence of vexatious conduct on the part of Prudential. Accordingly, the trial court did not err in awarding costs to Prudential. The issue thus becomes whether it was necessary for Prudential to continue to maintain and pay the bond costs through June 2008, given that the Court issued the mandate on December 20, 2007. Prudential’s exposure ended as soon as the Court issued the mandate on December 20, 2007, making continued maintenance of the bond unnecessary. Under M.R.A.P. 40(a), once a Motion for Rehearing has been denied, no further motion for rehearing shall be filed by any party. Once the Court had denied Stewart’s initial Motion for Rehearing, Stewart was no longer at liberty to file additional motions. Any subsequent Motions for Rehearing filed by Stewart did not serve to prolong the appeal in any way. As such, Prudential had no need to maintain the bond. The case is therefore remanded to the trial court for a determination of the costs of maintaining the bond through December 20, 2007. Stewart argues that Prudential purchased a bond that far exceeded the sum required for a supersedeas bond. Prudential’s first-year premium was $240,783. Stewart argues that the correct amount should have been .0045 times 125% of the total judgment ($36,901,638.02 times 1.25), which is $207,571.71. Prudential agrees that the total judgment was $36,901,638.02. The judgment, however, expressly provided for 8% interest of the total amount per year, with 8% being $2,952,131. Prudential estimated the duration of the appeal to be two years. According to Prudential’s calculations, therefore, the amount of the judgment plus interest was $42,805,900. Applying the 125% penalty, the total amount of the supersedeas bond required to forestall execution on the judgment was $53,507,375, requiring a payment of $240,783 for the first year. M.R.A.P. 8 provides that a supersedeas bond shall be 125 percent of the amount of the judgment appealed from. The purpose of the additional 25% over the amount of the judgment is to cover interest and other costs recoverable by the appellee. Although the Court held otherwise in In re Estate of Taylor, 539 So. 2d 1029, 1035 (Miss. 1989), that case is now expressly overruled, insofar as it requires an appellee to calculate the amount to be bonded by adding estimated interest to the 125% amount to be bonded. On remand, the trial court must recalculate Prudential’s costs. Rule 36(c) allows for Prudential to recover for the costs assessed to it by the circuit clerk and for premiums paid for the supersedeas bonds. The record shows that Prudential’s bill of costs was both reasonable and necessary. Stewart argues that Prudential is estopped from recovering the fees of the Hinds County Circuit Court associated with preparing the record for the purposes of appeal. The bill of costs filed with the trial court clearly reveals that Prudential, from the beginning, has sought costs imposed on Prudential by the Hinds County Circuit Court Clerk for preparation of the record for appeal. This argument is without merit. Stewart argues that Prudential failed to introduce evidence of costs that met the requisite reasonable-certainty standard. Prudential has proven its damages with reasonable certainty. Prudential has provided numerous invoices, copies of returned checks, invoices, and affidavits authenticating the invoices, which sufficiently evidence its costs. |
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