Peppers Cemetery Found. v. McKinney

• Decision Date: 04 February 2015
• Docket Number: No. SD 33320,SD 33320
• Citation: 455 S.W.3d 465
• Parties: Peppers Cemetery Foundation, Plaintiff–Appellant, and Opal Massey, Plaintiff–Respondent, v. Danny W. McKinney, Trustee of the Revocable Living Trust Agreement of Norman C. Bennett and Pearl L. Bennett; Danny W. McKinney, individually; Nadine M. McKinney, and Trinity Evangelical Lutheran Church of Lebanon, Missouri, Defendants–Respondents.
• Court: Missouri Court of Appeals

455 S.W.3d 465

Peppers Cemetery Foundation, Plaintiff–AppellantandOpal Massey, Plaintiff–Respondent

v.Danny W. McKinney, Trustee of the Revocable Living Trust Agreement of Norman C. Bennett and Pearl L. Bennett; Danny W. McKinney, individually; Nadine M. McKinney, and Trinity Evangelical Lutheran Church of Lebanon, Missouri, Defendants–Respondents.

No. SD 33320

Missouri Court of Appeals, Southern District, Division Two .

Filed: Feb. 4, 2015

Angela C. Rieschel, Buffalo, MO, for Appellant.

Heather L. McBride, Springfield, MO, for Respondent Massey.

Opinion

DON E. BURRELL, J.

Plaintiff Peppers Cemetery Foundation (“Foundation”) appeals the portion of a judgment of the probate division of the circuit court (“the trial court”) that ordered Foundation to pay $2,000 to Plaintiff Opal Massey (“Respondent”) for attorney fees she incurred (“the additional attorney fees”) in connection with her motion to enforce a settlement agreement the parties had reached in their lawsuit over the proper administration and distribution of the assets of a trust.¹ The payment of other specified attorney fees to separate lawyers for Foundation ($1,500) and Respondent ($13,500) (“original attorney fees”) from the trust had been agreed upon in a Memorandum of Agreement (“the Memorandum”) signed on behalf of all parties (as well as counsel for the represented parties) at the conclusion of a May 2012 mediation session.²

Foundation contends the trial court erred in awarding the additional attorney fees “as a result of [Foundation's] attempt to inquire into the reasonableness of” Respondent's original attorney fees “because the reasonableness of the attorney's fee claim is an implied term of the mediated settlement.” Because the trial court had broad discretion under section 456.10–1004³ to award reasonable attorney fees, and Foundation has failed to prove that the trial court abused that discretion, we affirm.

Facts and Procedural Background

In February 2012, Respondent and Foundation, as beneficiaries of the trust, filed their joint petition, which asserted nine counts for relief. In March 2012, the parties stipulated that they would complete mediation within 90 days. Foundation agrees in its brief (citing the enforcement motion) that mediation was held, and “the parties set out the essential terms of an agreement for settlement of the case” in the Memorandum.

The Memorandum, dated May 14, 2012, provided for the payment of specific sums from the trust to Foundation, Respondent, the Church, and Mr. McKinney. It then provided:

From the balance left in the trust is to be deducted $1,500.00 attorney fees to Angela C. Rieschel [ (“Foundation counsel”) ] and $13,500.00 attorney fees to Heather McBride [ (“Respondent counsel”) ]. After those amounts are deducted, the balances of proceeds are to be divided one fourth each to the [Church], [Respondent], [Foundation,] and [Mr.] McKinney. [Mr.] McKinney is responsible for paying David Wilhite's attorney fees [Mr. Wilhite had represented the McKinneys individually and Mr. McKinney as successor trustee].

This agreement resolves all issues in the above styled case.

In its statement of facts, Foundation asserts⁴ that on October 17, 2012, “the parties reached agreement that a circulated settlement agreement contained correct terms.” Foundation subsequently notified Respondent that “it would not sign the settlement agreement” and “[s]tarting on October 24, 2012, [Foundation] sought an itemized statement of [Respondent's] attorney fee invoices for [Respondent's counsel] verifying the $13,500 incurred by [Respondent].”

In February 2014, Respondent filed the enforcement motion, which incorporated an unexecuted “Settlement and Release Agreement” (“the Settlement Agreement”), other documents related to the Settlement Agreement, and Respondent counsel's affidavit affirming the truth of the matters stated in the enforcement motion. The enforcement motion also sought additional attorney fees against Foundation in favor of Respondent for services performed in “the researching, drafting, filing, and argument of” the enforcement motion, and it stated that the attorney fees had “exceed[ed] the amount set forth in the Memorandum[.]” Respondent argued that the enforcement motion “would not have been necessary but for [Foundation's] refusal to sign documents evidencing the agreement it and the other parties to this case made following mediation in May 2012.” The McKinneys also joined in the enforcement motion.

A February 13, 2014 hearing was held on the matter, but it was not recorded. The next day, the trial court entered an order stating that all parties had agreed that the Memorandum was “enforceable, and that all parties [were] in agreement that the settlement documents” also included with the enforcement motion were “correct.” The order noted that “Foundation argued it should be permitted to review [Respondent's] attorney fees invoices for reasonableness of the fees.” The order also stated that Respondent objected on the grounds of privilege and argued that the Memorandum did not require any review for reasonableness, but “[t]o dispose of this matter,” Respondent asked the trial court to review the invoices “in camera and under seal[.]” The order also stated that “Foundation agreed to the same.” Respondent counsel was ordered to submit “her firm invoices for work performed and costs incurred by [Respondent] in the above-captioned matter.” Finally, the order stated that the trial court would review the “invoices for reasonableness, and the Court's determination of the same shall be final and binding on all parties.”

On March 4th, the trial court entered an order sustaining the enforcement motion and directing the parties “to execute the [Settlement Agreement], and all exhibits thereto,” in a form revised to show counsel for the Church and current dates for the execution of the documents. The order reflected the receipt of “itemized copies of all attorney fees and costs incurred by [Respondent] from the inception of this matter to date.” It found that original attorney fees of $13,500 referenced in the Memorandum for Respondent counsel were “appropriate and reasonable for the services performed by [Respondent's] counsel on her behalf in this matter.” It sustained Respondent's request for additional attorney fees and directed that the payment to Foundation under the Settlement Agreement be offset by $2,000 in order to pay this amount for such fees to Respondent.

The trial court entered its “FINAL JUDGMENT” on March 12th. The judgment stated, inter alia, that “without presentation of any evidence, all parties agreed [Respondent] would file itemized billing records under seal for the Court's in camera review. [Respondent] also requested attorney fees for bringing the [enforcement motion] and [Foundation] objected.” The judgment made orders consistent with the March 4th order, including reference to the finding that the preparation, filing, and argument of the enforcement motion along with the preparation of a “proposed order would not have been necessary but for [Foundation's] refusal to sign the settlement documents and [Respondent] should receive additional attorney fees in the amount of Two Thousand Dollars ($2,000.00) as a reasonable fee.”

Foundation timely filed a “MOTION FOR NEW TRIAL AND MOTION FOR RECONSIDERATION, OR, IN THE ALTERNATIVE, MOTION TO AMEND THE JUDGMENT AND SUGGESTIONS IN SUPPORT” (“new trial motion”). Foundation asserted that: Respondent “presented no evidence” concerning additional attorney fees; had such evidence been presented, Foundation “would have presented evidence in opposition and ... preserved objections”; it was appropriate for Foundation to inquire into the reasonableness of Respondent's original attorney fees; and the trial court abused its discretion in awarding the additional attorney fees. During argument on the new trial motion, Foundation's counsel suggested that Respondent had not requested additional attorney fees at the February 13th hearing and that “[i]f she had requested attorney fees, we would have asked for a hearing and presented evidence that the documents, number one, were not presented—were not properly prepared.” Foundation counsel concluded her argument by stating:

We don't have any problem with the judgment except for the part where it says that there was evidence presented on the additional attorney fees of $2,000 and that we objected. We didn't object because there was no request made to the Court. And we would respectfully ask the Court to omit that in the judgment or, at least, set a hearing so we can say our piece.

The trial court summarized its recollection of the “last hearing that led to this.” That summary included the following:

I can tell you without question that I heard [Respondent counsel] bring up the issue that she had had to bring this action and would request fees for that. I don't remember an actual amount being suggested. I do remember [Respondent counsel] specifically saying that there had been additional costs incurred and that they would seek that. And I believe it's also set forth—I'd have to pull the motion, but I believe it's requestedin the motion. So I believe it's been pled, I believe it was requested.

The trial court also recalled:

[I]t was agreed to and this matter was taken up with no record, no other evidence presented by agreement of the parties. The issue of additional attorney's fees was submitted as being requested by [Respondent counsel]. I don't know why anyone or no one else heard it. I can tell you unequivocally I heard it.

None of these recollections are refuted by the record on appeal. The trial court also observed that Respondent counsel's “documents ha[d] proposed $6,000” for additional attorney fees. The trial court noted its position as an expert on attorney fees, an awareness of what it believed local attorneys would have charged, and that it had reviewed “the actual documents prepared and submitted ... as well as holding the hearings” so...