Knight v. DeMarea, WD

• Citation: 670 S.W.2d 59
• Decision Date: 20 March 1984
• Docket Number: No. WD,WD
• Parties: Lillie KNIGHT, Plaintiff-Appellant, v. Carol Rebecca DeMAREA, Defendant-Respondent. 34105.
• Court: Court of Appeal of Missouri (US)

Page 59

670 S.W.2d 59

Lillie KNIGHT, Plaintiff-Appellant, v. Carol Rebecca DeMAREA, Defendant-Respondent.

No. WD 34105.

Missouri Court of Appeals Western District.

March 20, 1984.

Motion for Rehearing and/or Transfer to

Supreme Court Overruled and Denied

May 1, 1984.

Application to Transfer Denied

June 19, 1984.

Wm. J. Hill, Hoffman, Hill, and Hargrave, Kansas City, for plaintiff-appellant.

Jack B. Robertson, Brian J. Fowler, Field, Gentry, Benjamin & Robertson, Kansas City, for defendant-respondent.

Before TURNAGE, C.J., and MANFORD and LOWENSTEIN, JJ.

TURNAGE, Chief Judge.

This case involves a dispute between an attorney and a client over the amount of the attorney's fee. The court entered judgment in favor of Lillie Knight, the attorney in the sum of $6,125, but Knight appeals contending the fee should be $27,500. Affirmed as modified.

Rebecca DeMarea was the daughter of John W. Doane. Doane died in September of 1974, leaving a will by which he bequeathed 45% of the capital stock of Tradex to DeMarea and the remaining 55% to Mary Carey, an employee of Tradex.

DeMarea and her husband, Larry, consulted Knight with reference to a will contest. Knight agreed to file such a suit and after discussing the suit with the DeMareas, Knight prepared a contract covering her services which she and the DeMareas signed. The contract provided for a contingent fee and contained the following provisions:

That said attorney shall receive an attorney fee of one-fourth of the net amount of the assets of the Estate of John W. Doane, obtained by said attorney either as the result of the trial of said will contest action, or by compromise settlement of same, over and above the value of forty-five per cent of the stock in the Mid-Continent Grain and Salvage Company, Inc., a corporation, doing business as the Tradex Stores which stock is specifically bequeathed to said Carol Rebecca DeMarea under the terms of the aforesaid instrument purporting to be the Will of said John W. Doane. It is the intent of the parties hereto that no attorney fee shall be charged against the value of the aforesaid forty-five per cent of said stock, but that said attorney fee will be based solely upon the net amount of the assets of said estate obtained by said attorney in said will contest action as aforesaid, over and above the value of said forty-five per cent of said stock, and over and above inheritance and federal estate taxes, and the cost of administration of said estate.

Knight filed the will contest suit and, thereafter, tried the same to a jury. The jury returned a verdict upholding the will. Before trial, Carey had made an offer through her attorney to purchase DeMarea's 45% of stock but this offer was based on deferred payment with no money down. DeMarea accepted Knight's advice that this was not a good offer and allowed it to expire. There was discussion between Knight and DeMarea concerning the filing of an appeal. The DeMareas initially took the position that they did not want to appeal, but Knight told them an appeal was necessary to protect their bargaining position if they hoped to obtain anything from the estate. DeMarea then agreed that an appeal be taken.

After the appeal was filed Knight and Carey's attorney received a letter from this court inviting them to appear for a settlement conference. After lengthy negotiations an agreement was reached by which Carey agreed to borrow sufficient funds to pay $105,000 and to assign a promissory note payable to Tradex in the amount of $5,000 to DeMarea in exchange for her 45% stock interest.

In June of 1977, after Carey offered to pay $110,000, Knight presented DeMarea a new attorney fee agreement which provided for DeMarea to pay certain expenses and an attorney fee in an amount which was left blank. DeMarea refused to sign this agreement. In November of 1977, Knight presented DeMarea with another agreement pertaining to attorney fees which called for Knight to be paid one-fourth of the $110,000, or $27,500. DeMarea refused to sign that agreement.

Because of the dispute concerning the attorney's fee the $105,000 in cash was deposited in Bannister Bank. The bank filed an interpleader suit naming Knight and DeMarea. Knight filed a cross-claim against DeMarea in which she claimed expenses and in Count II alleged that, after the unfavorable jury verdict, she and DeMarea reached a new understanding and agreement by which Knight was to proceed with the appeal while attempting to obtain a fair price from Carey for the sale of DeMarea's stock. Knight further alleged that pursuant to this new agreement she perfected the appeal and obtained a favorable bargaining position for DeMarea which resulted in the sale of DeMarea's stock for $105,000 cash and a $5,000 promissory note. Knight further alleged that as a result of the new agreement she was entitled to a fee of 25% of the $110,000 received by DeMarea for her stock. DeMarea filed an answer to the cross-claim in which she denied making a new agreement for attorney fees and alleged that if Knight were entitled to any fee it was only one-fourth of the difference between $85,500, the value of 45% of the stock as shown on the federal estate tax return, and the $110,000 paid by Carey.

At trial on Knight's cross-claim Knight acknowledged the original written agreement providing for a contingent fee but said she had a new agreement with DeMarea to sell the 45% interest of Tradex stock for DeMarea. Knight acknowledged that she did not discuss with DeMarea how she would be paid under the new agreement or how she would set her fee. Knight stated that she did not discuss the amount of her fee under the new agreement because she thought DeMarea was intelligent enough to know that Knight intended to charge for all of the time put in after trial.

DeMarea testified that she was willing to pay Knight one-fourth of the difference between $85,500, which was the value of 45% of the stock as it was shown on the federal estate tax return, and the $110,000 which Carey paid for DeMarea's stock. DeMarea further testified that at a settlement conference held in connection with the appeal Knight said the written contract was invalid after the will contest was tried. She further quoted Knight as saying that she did not have an agreement with DeMarea other than the written agreement. She said Knight was asked about the problem with the written agreement and Knight said it was just not enough. DeMarea denied that any agreement had been made except for the written contingent fee contract.

By the first count of Knight's cross-claim she sought to recover expenses advanced by her. At the beginning of the trial on Knight's cross-claim the parties stipulated as to the amount of expenses and no question is presented on this appeal concerning them.

Knight contends that the court erred in failing to find that a new agreement had been entered into for attorney fees because her services after the will contest trial were inconsistent with the written contract and because there was a new transaction by which Knight was employed to sell DeMarea's stock. These contentions boil down to a single contention that the evidence showed that Knight and DeMarea entered into a new agreement for attorney fees after the trial. The short answer to this contention is that the evidence does not show that a new agreement was reached. Although Knight testified there was a new agreement she could not supply...