Drake Dev. & Constr. LLC v. Jacob Holdings, Inc.

• Citation: 366 S.W.3d 41
• Decision Date: 26 March 2012
• Docket Number: No. SD 31263.,SD 31263.
• Court: Missouri Court of Appeals
• Parties: DRAKE DEVELOPMENT & CONSTRUCTION LLC, Plaintiff, v. JACOB HOLDINGS, INC., Defendant–Appellant, v. Gregory David Williams, Movant–Respondent.

366 S.W.3d 41

DRAKE DEVELOPMENT & CONSTRUCTION LLC, Plaintiff,

v.JACOB HOLDINGS, INC., Defendant–Appellant,

v.Gregory David Williams, Movant–Respondent.

No. SD 31263.

Missouri Court of Appeals,

Southern District,

Division Two.

March 26, 2012.

Clayton G. Kuhn, St. Louis, MO, for Appellant.

Gregory D. Williams, Sunrise Beach, MO, for Respondent.

JEFFREY W. BATES, Judge.

Jacob Holdings, Inc. (Jacob) appeals from a judgment assessing an attorney's lien in favor of attorney Gregory Williams (Williams). Presenting two points of error, Jacob contends: (1) the trial court lacked jurisdiction to hear Williams' motion to assess his attorney's lien because the motion was filed after the judgment in the underlying case became final; and (2) alternatively, the court erred in determining the amount of the lien because it included costs and fees unrelated to Williams' work in the underlying case. Finding no merit in either contention, we affirm.

I. Factual and Procedural Background

This case has previously been before this Court. See Drake Development & Construction, LLC v. Jacob Holdings, Inc., 306 S.W.3d 171 (Mo.App.2010). The underlying lawsuit was brought by Drake Development & Construction, LLC (Drake) against Jacob to quiet title to real estate, previously owned by Jacob, that was purchased by Drake at a tax sale. In the quiet title action, Drake contended that the redemption notice it sent to Jacob complied with all of the requirements of § 140.405, and Jacob failed to redeem within the statutory period. Id. at 172–73.¹ Williams represented Jacob in that lawsuit and filed an answer and a counterclaim, seeking to quiet title to the real estate in Jacob, on its behalf. The trial court found in favor of Drake. Williams represented Jacob in its appeal to this Court. We held that Drake lost all interest in the real estate because the redemption notice was defective. Id. at 174. The judgment was reversed, and the cause was remanded for further proceedings consistent with our opinion. Id.

After mandate issued, the trial court entered a second amended judgment on April 14, 2010. This judgment determined that: (1) Jacob was the fee simple owner of the real estate at issue; (2) Jacob was required to reimburse Drake for the amount of real estate taxes it paid to the Collector of Revenue; (3) the Collector was required to reimburse Drake for the surplus amount generated by the tax sale; and (4) Drake was required to pay court costs. No post-trial motions were filed, and no party appealed. Thereafter, Drake filed a satisfaction of judgment.

On December 27, 2010, Williams filed a motion asking the trial court to assess the amount of attorney's fees Williams was owed by Jacob and impose the same as a lien on the real estate awarded to Jacob by the judgment. Jacob filed a response challenging the court's jurisdiction to hear the motion and alleging that Williams had been paid in full by Jacob. The court entered an order that overruled the motion to dismiss for lack of jurisdiction and set the matter for an evidentiary hearing. After conducting that evidentiary hearing, the trial court entered a “Judgment Assessing Attorney's Lien Against Defendant Jacob Holdings, Inc.” on March 29, 2011. This judgment: (1) assessed Williams' attorney's fees at $35,546.08; (2) imposed the same as a lien against the real estate awarded to Jacob; and (3) authorized execution to issue. This appeal by Jacob followed. Additional facts will be disclosed as necessary to address Jacob's two points on appeal.

Point I

In Jacob's first point, it contends the trial court lacked the jurisdiction to hear Williams' motion for assessment of his attorney's lien because the motion was filed more than seven months after the April 2010 judgment in the underlying case became final. For the reasons that follow, we find no merit in Jacob's contention.

Williams' motion to assess his attorney's lien was brought pursuant to § 484.130, which states:

The compensation of an attorney or counselor for his services is governed by agreement, express or implied, which is not restrained by law. From the commencement of an action or the service of an answer containing a counterclaim, the attorney who appears for a party has a lien upon his client's cause of action or counterclaim, which attaches to a verdict, report, decision or judgment in his client's favor, and the proceeds thereof in whosesoever hands they may come; and cannot be affected by any settlement between the parties before or after judgment.

Id. (emphasis added). Based upon the express language of this statute, Williams had an attorney's lien that attached to Jacob's cause of action to recover its real estate as soon as Williams served Jacob's counterclaim upon Drake. See id.; Reed v. Reed, 10 S.W.3d 173, 177 (Mo.App.1999); Downs v. Hodge, 413 S.W.2d 519, 524 (Mo.App.1967). Jacob's quiet title cause of action was extinguished and merged into the judgment decreeing that Jacob was the fee simple owner of that real estate. See Noell v. Missouri Pac. R Co., 335 Mo. 687, 74 S.W.2d 7, 11 (1934). Williams' lien attached to the judgment in Jacob's favor. See id. The real estate recovered for Jacob through Williams' efforts constituted the res upon which he had a lien for his fees. See Young v. Levine, 326 Mo. 593, 31 S.W.2d 978, 979–80 (1930) (holding that an attorney's lien created pursuant to statute, now § 484.130, attaches to a judgment awarding real property to the client); Noell, 74 S.W.2d at 11 (noting that property awarded to the client is the res upon which an attorney has a lien to secure the payment of his fee); Schempp v. Davis, 201 Mo.App. 430, 211 S.W. 728, 730 (1919) (the attorney's lien not only attaches to the client's cause of action, but also to the fruits of that successfully enforced cause of action). Thus, § 484.130 essentially establishes a charging lien against the res that gives the attorney an equitable right to have attorney's fees and costs secured by the judgment in the lawsuit in which the fee was earned and the costs were advanced. Wright v. Bartimus Frickleton Robertson & Gorny PC, 364 S.W.3d. 558 (Mo.App. W.D.2011).

The question then becomes, how does the attorney enforce this charging lien? The statute creating this attorney's lien contains no specific method of enforcement. See§ 484.130; Satterfield v. Southern Ry. Co., 287 S.W.2d 395, 397 (Mo.App.1956). The absence of a statutory remedy, however, does not mean that the attorney's lien must perish. Id. Missouri courts have been assiduous in devising modes of procedure for enforcing an attorney's lien that are compatible with the general rules established in our system of jurisprudence for securing private rights. Anderson v. Anderson, 404 S.W.2d 206, 210 (Mo.App.1966). Unquestionably, the attorney has the right to follow the proceeds of the lawsuit into the hands of the party who received them. Smoot v. Shy, 159 Mo.App. 126, 139 S.W. 239, 241 (1911). Here, Williams' efforts resulted in a judgment awarding real estate to Jacob. Therefore, Williams had the right to follow those proceeds into Jacob's hands. See id. He could do so either by filing an independent action against Jacob or by filing a motion in the original case. SeeState ex rel. Kinder v. Dandurand, 261 S.W.3d 667, 671 (Mo.App.2008). “The remedy for enforcing the lien is not only left to the court, but in the final analysis it is up to the court to determine whether the method selected by the attorney is appropriate under all the facts and circumstances.” Satterfield, 287 S.W.2d at 397;see Plaza Shoe Store, Inc. v. Hermel, Inc., 636 S.W.2d 53, 56 (Mo. banc 1982) (quoting with approval that same principle from Satterfield ), Reed v. Garner Industries, Inc., 832 S.W.2d 945, 949 (Mo.App.1992) (the remedy for enforcing an attorney's lien is left up to the trial court, which has wide latitude to determine the propriety of the method of enforcement selected). Thus, we believe the trial court's decision in the case at bar should be reviewed for abuse of discretion. See Reed, 832 S.W.2d at 949;Plaza Shoe Store, 636 S.W.2d at 56;Satterfield, 287 S.W.2d at 397.

Citing Kinder, Jacob argues that the trial court lacked jurisdiction to hear and determine the attorney's lien motion filed by Williams in the underlying case. We disagree because the procedural posture of Kinder renders that case factually inapposite. There, attorney Pearman filed a motion to determine her attorney's lien after trial, but before the judgment was entered. The court's judgment ordered the parties to pay their own attorney's fees, but did not dispose of attorney Pearman's pending lien motion. Kinder, 261 S.W.3d at 669. The Kinder court held that the judgment was not final because it did not dispose of all pending issues. Therefore, the trial court had jurisdiction to dispose of the lien claim, along with all of the other issues in the underlying case, by entering a timely amended judgment. Id. at 671.

The procedural posture of the case at bar is different. The record demonstrates that the judgment disposing of all claims in the underlying suit had become final before Williams filed his motion to assess his attorney's lien. The trial court made no attempt to resolve the lien claim via an untimely amendment of the underlying judgment. Williams and Jacob were the only parties involved in the issues raised by Williams' motion and Jacob's response. Jacob had notice of the motion and was given a full opportunity to defend against Williams' lien claim on the merits. The court conducted an evidentiary hearing before deciding the matter and entered a completely separate judgment that resolved the issues between Williams and Jacob. We find no abuse of discretion in the trial court's decision that the foregoing method of enforcing Williams' lien was appropriate under all of the facts and circumstances. See Woodruff v. Rusk, 229 Mo.App. 119, 76 S.W.2d 709, 711 (1934) (noting that the nature of the right and the...