Brown v. Whitaker

926 S.W.2d 1, 1996 Mo. App. LEXIS 528, 1996 WL 146301
CourtMissouri Court of Appeals
DecidedApril 2, 1996
DocketNos. WD 51158, WD 51171
StatusPublished
Cited by2 cases

This text of 926 S.W.2d 1 (Brown v. Whitaker) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brown v. Whitaker, 926 S.W.2d 1, 1996 Mo. App. LEXIS 528, 1996 WL 146301 (Mo. Ct. App. 1996).

Opinions

SPINDEN, Presiding Judge.

This is the second time this case appears before this court. This time we consider whether the circuit court obeyed our mandate when we remanded the case to it on September 27, 1994, in Baker v. Whitaker, 887 S.W.2d 664 (Mo.App.1994). We conclude that the circuit court did comply with our mandate, so we affirm the circuit court’s judgment.

We set out the facts extensively in our first opinion. We repeat only the basic facts here.

A school bus driven by Michael Wagner and owned by D & R Transportation ran over 81-year-old Elvira I. Baker on April 14, 1989. Wagner pleaded guilty to careless driving. While Baker was still in the hospital, she asked Glen L. Whitaker, a lawyer, to visit her to discuss his preparing a will for her and representing her in a lawsuit against D & R Transportation. Whitaker told her that his fee would be 50 percent of the money she received. On July 12, 1989, Whitaker returned to the hospital with a will. Baker told him that State Farm Insurance Company, which insured the bus, had told her in the meantime that it would pay all of her medical expenses. Whitaker made derogatory remarks about State Farm and encouraged her to pursue a lawsuit. Whitaker wrote out a contingency fee contract which Baker signed. It said:

I hereby hire Glen L. Whitaker and Associates to represent me as my attorneys-at-law and prosecute for me any and all claims for damages and injuries sustained by me resulting from or to result from the D & R Bus Company bus (D & R Bus) carelessly hitting me April 14, 1989, and Mr. Whitaker and his associates’ fee shall be 50% contingent of any amounts paid me by anyone or any company because of my claims, and court costs and required prosecution of claims or lawsuits shall be paid by me.

Whitaker later agreed with Robert Shirkey to split the attorney fee — ⅜ to Whitaker and % to Shirkey — without informing Baker, although she later became aware that Shirkey was handling her litigation. Shirkey filed a lawsuit for Baker against D & R and Wagner. Shirkey demanded the full amount of insurance coverage, $1 million. State Farm agreed to pay the full amount to settle the lawsuit. After paying $233,000 directly to hospitals for Baker’s treatment, State Farm paid Baker and her attorneys $767,000. In December 1990, Baker signed a settlement statement prepared by Shirkey which itemized the litigation expenses and summarized the following amounts:

RECEIVED IN SETTLEMENT $1,000,000.00
[itemized litigation expenses listed]
TOTAL EXPENSES $ 1,767.95
NET RECEIVED IN SETTLEMENT $ 998,242.05
Attorne/s Fee per contract (50%) $ 499,121.02
NET DUE CLIENT $ 499,121.03

At the bottom of the statement were handwritten figures reflecting a deduction for medical expenses from Baker’s portion total-ling $237,051.84.

Truman Medical Center later sued Baker for $50,838.17 in unpaid medical bills. Baker later received bills from other health providers totalling $38,194.63. Baker then sued Whitaker and Shirkey in April 1992, requesting the court to invalidate the fee agreement as unreasonable and unconscionable. In August 1993, the circuit court entered judgment for Baker for $64,728.30, the amount it determined was the unpaid medical bills at the time of the settlement. The circuit court added $24,304.50 to the judgment amount after learning of an additional unpaid bill. Both sides appealed. In resolving the first appeal, we reversed the circuit court’s judgment awarding the plaintiff the amount of the remaining unpaid medical bills. We found the settlement agreement’s phrase “amounts paid to me” was ambiguous and remanded the case for “further proceedings to determine the proper amount of attorneys’ fees based on 50% of the amount recovered from the settlement.” We said:

[4]*4This will require an interpretation of the phrase “amounts paid to me” in accordance with the principles of law set forth [in the opinion] in order to determine the parties’ intention. More to the point, the court must decide whether the agreement contemplated the deduction of medical and nursing care expenses before or after calculating the attorney fees.

We also pointed out to the circuit court that a question remained as to whether a causal connection existed between certain outstanding medical bills and the accident. We remanded to the circuit court to give the parties an opportunity to present evidence as to whether the ineurment of medical bills was caused by the accident.

After remand, Baker’s representative1 withdrew a claim that the unpaid medical bills should have been deducted before calculation of the attorneys’ fees. She requested judgment for $115,621.02. Shirkey demanded that “evidence ... be presented as to whether the Defendants are liable for payment of disputed medical bills.” On April 24, 1995, the circuit court entered judgment for Baker’s representative for $115,621.02 without conducting an evidentiary hearing. The circuit court concluded that the phrase, “amounts paid me,” required that medical bills totalling $283,000 be deducted from the total settlement before determining attorneys’ fees. Shirkey and Whitaker appeal.

Shirkey and Whitaker contend that the circuit court upon remand failed to follow this court’s mandate. They contend that the circuit court did not follow the factors and principles outlined by this court for determining the meaning of “amounts paid to me” and did not conduct an evidentiary hearing. We disagree; the circuit court properly followed our mandate.

Shirkey and Whitaker insist that our mandate required the circuit court to conduct an evidentiary hearing upon remand. We disagree. In the first appeal, we noted that they should have the right to present evidence to contest the validity of the unpaid medical bills. When Baker’s representative dropped that claim, the need for an eviden-tiary hearing evaporated.

Shirkey and Whitaker contend that an evi-dentiary hearing was still required on the issue of the proper interpretation of “amounts paid me.” They, however, do not point to any new evidence that the circuit court did not hear in the first case. The contentions in their brief suggest that all of the evidence on the matter had been heard. We fail to see how they were prejudiced by the circuit court’s refusal to hold an eviden-tiary hearing.

Moreover, our mandate did not require an evidentiary hearing on the interpretation of “amounts paid me.” We said only that the case was remanded “for further proceedings to determine the proper amount of attorneys’ fees based on 50% of the amount recovered from the settlement.” We instructed the circuit court that this meant it had “to decide whether the agreement contemplated the deduction of medical and nursing care expenses before or after calculating the attorney fees.”

The language “remand for further proceedings” does not mean that an additional evidentiary hearing is required. As the court said in Pinkston v. Ellington, 845 S.W.2d 627, 629 (Mo.App.1992):

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Cite This Page — Counsel Stack

Bluebook (online)
926 S.W.2d 1, 1996 Mo. App. LEXIS 528, 1996 WL 146301, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brown-v-whitaker-moctapp-1996.