Scott v. Home Mut. Tel. Co.

• Citation: 488 S.W.2d 922
• Decision Date: 18 December 1972
• Docket Number: No. 25965,25965
• Parties: Thomas SCOTT, Respondent, v. HOME MUTUAL TELEPHONE CO. et al., Defendants, v. James C. GURNEY, Appellant.
• Court: Court of Appeal of Missouri (US)

Page 922

488 S.W.2d 922

Thomas SCOTT, Respondent, v. HOME MUTUAL TELEPHONE CO. et al., Defendants, v. James C. GURNEY, Appellant.

No. 25965.

Missouri Court of Appeals, Kansas City District.

Dec. 18, 1972.

Martin Anderson, Kansas City, for appellant.

Robert B. Paden, Maysville, for respondent.

Before SHANGLER, C.J., PRITCHARD and WASSERSTROM, JJ., and ROBERT G. RUSSELL, Special Judge.

PRITCHARD, Judge.

James C. Gurney, former court-appointed receiver of the Home Mutual Telephone Company, appeals from an order disallowing his payment (made without a prior court order) of $4,875.00 attorney fees to J. K. Owens, and ordering Gurney to return that amount to the successor receiver.

Gurney's sole point that 'The court erred in refusing to allow attorney's fees for services rendered to the estate by receiver's attorney' is insufficient in itself to present anything for review under Rule 83.05(e), V.A.M.R., in that it does not 'briefly and concisely state why it is contended the Court was wrong in any action or ruling sought to be reviewed.' The deficiency causes the appeal to be subject to dismissal. Respondent's brief setting up its point 'The court acted properly, on the record, in refusing to allow attorney's fees or additional fees to the receiver for employment of counsel' is for the same reason deficient, and causes that brief to be subject to being disregarded. The argument portions of the briefs do, however, develop the respective positions of the parties, and under that posture neither will there be a dismissal of the appeal nor a disregarding of respondent's point.

Thomas Scott, a stockholder of the telephone company, petitioned the circuit court through his attorney, J. K. Owens, for the appointment of a receiver of all the assets of the corporation. On October 28, 1964, the court appointed Gurney as receiver by order specifying, among other powers, 'with full power and authority, as such receiver to take same (property, assets and business) into his possession and to incur such expenses as may be necessary or advisable in connection therewith.' Upon petition by Gurney on January 13, 1965, the court ordered the sale of certain items constituting the telephone plant, excluding presently used telephones, station equipment and real estate to be sold to General Telephone Company. Thereafter, Gurney took charge of the remaining assets, and from 1965 through 1970, he received $41,615.63 for operating income, $995.93 for interest and refund income, and $5,457.40 for the sale of assets, totalling $48,068.96. Against this figure was charged actual operating expenses of $33,578.71, leaving net assets of $14,490.25. As receiver, Gurney received $5,025.00, and J. K. Owens received $4,875.00 as attorney fees, totalling further receivership expenses of $9,900.00.

The testimony of Gurney as to the services performed for him by J. K. Owens is rather skimpy. Owens, who was Gurney's attorney from the start of the receivership requested Gurney to prepare a report to the court as ordered on or before December 30, 1969, and Owens thought that the report was sufficient. Owens' attorney fees were paid to him by Gurney from 1964 to date without any court orders. As to why he did not get court orders, Gurney testified: 'A I would always talk to Joe about it. I would ask him what his attorney's fees were--to be paid in six month intervals--and he told me what his attorney's fee would be. He would go over with me what I done in the last six months. Q Was some of this work done in concert with him? A Well, we would talk it over.' Gurney assumed Owens was discussing the matters with the court, and knew that he was taking up a lot of his time. 'Every problem I had--legal or sometimes it's policy-wise--I would always discuss it with Mr. Owens. On two occasions Owens went with Gurney to Jefferson City. The two conferred with respect to the sale of the company and at the time of the distribution of the assets to the corporate stockholders.

Gurney prepared Exhibit No. 1 purporting to show the time spent with Owens. For December 7,...