Floyd v. Shaw, 61128

• Decision Date: 02 June 1992
• Docket Number: No. 61128,61128
• Citation: 830 S.W.2d 564
• Parties: Walter L. FLOYD, et al., Appellants, v. Charles M. SHAW, et al., Respondents.
• Court: Missouri Court of Appeals

Page 564

830 S.W.2d 564

Walter L. FLOYD, et al., Appellants, v. Charles M. SHAW, et al., Respondents.

No. 61128.

Missouri Court of Appeals,

Eastern District,

Division Two.

June 2, 1992.

Alan J. Agathen, Clayton, for appellants.

Joseph Howlett, Clayton, for respondents.

CHARLES B. BLACKMAR, Senior Judge.

This is an action by one firm of attorneys against another, seeking to enforce an alleged agreement for the division of fees for prosecuting a wrongful death case, in which the plaintiffs represented the decedent's mother and the defendants her husband. The circuit court sustained the defendants' motion to dismiss, concluding that the decision of the Circuit Court of the City of St. Louis apportioning the recovery and directing payment of contractual fees pursuant to § 537.095, RSMo 1986 barred the plaintiffs' claim as res judicata. We conclude that the motion to dismiss was improvidently sustained and reverse and remand for further proceedings.

The plaintiffs' petition alleges that the plaintiff attorneys and the defendant attorneys represented claimants in a wrongful death action, with each set of attorneys having a contingent fee agreement with their respective clients, that the attorneys agreed among themselves that each group would be entitled to share equally in the fees which might become due the other group under their respective contracts; and that expenses of litigation were to be borne by the parties in proportion to their recovery. The case was then settled for $195,000, out of which the trial court awarded the husband, represented by defendants, 90%, or $175,500, yielding a contractual fee of $58,500, of which the plaintiffs claim a share. The petition also claims that the defendants are obliged to pay 90% of the expenses advanced by the plaintiffs, amounting to $18,729.73. The total prayer is for $43,555.17.

The defendants filed a motion to dismiss on grounds of (1) res judicata, arguing that the issue of division of fees could and should have been raised in the allocation hearing under § 537.095.4 and, (2), illegality of the alleged contract, because the petition did not state that it had been entered into with the consent of the client. The trial court sustained the motion, solely on the ground of res judicata.

The plaintiffs allege that the motion to dismiss was really a motion for summary judgment, in that it referred to matters outside the petition. It is pointed out that the documents the defendants adduced from the Circuit Court of the City of St. Louis are not verified or certified, as is required for a motion for summary judgment. The point is troubling. The concept of judicial notice has not been explicitly extended so that one circuit court may take judicial notice of proceedings and records of another circuit. Pogue v. Associated Electric Coop, Inc., 760 S.W.2d 169 (Mo.App.1988). But the alleged records are consistent with the plaintiffs' petition and with the opinion in the mother's appeal from the allocation under Bragg v. Missouri Pacific R.R., 791 S.W.2d 776 (Mo.App.1990), and so we elect to rule on the merits of the motion.

The problem with the trial court's ruling is that the attorneys were not parties to the underlying litigation. Res judicata bars only claims by parties and privies. Attorneys claiming a portion of a party's fee have not previously been held to be in privity with their clients. The concept of privity for purposes of res judicata connotes interests so closely related that the party sought to be barred may be said to have had a day in court. The interest of an attorney with regard to a fee claim is not of this character. See Apperson v. Bi-State Dev. Agency, 685 S.W.2d 594 (Mo.App.1956). Section 537.095(4) allows the trial court...