J.A.L. and J.L.L. b/n/f KAYLA MASON and K.L. b/n/f AMANDA LEWIS and DIANE LEWIS-CAMPBELL v. KARL SCOTT LAMBERT and JOSEPH SCOTT LAMBERT, Defendants-Respondents

• Court: Missouri Court of Appeals
• Decided: January 8, 2024
• Docket: SD37860
• Status: Published

Opinion

Missouri Court of Appeals Southern District

In Division J.A.L. and J.L.L. b/n/f KAYLA MASON ) and K.L. b/n/f AMANDA LEWIS and ) DIANE LEWIS-CAMPBELL, ) ) Plaintiff-Appellant, ) ) v. ) No. SD37860 ) KARL SCOTT LAMBERT and ) Filed: January 8, 2024 JOSEPH SCOTT LAMBERT, ) ) Defendants-Respondents. )

APPEAL FROM THE CIRCUIT COURT OF CARTER COUNTY

The Honorable Steven A. Privette, Judge

AFFIRMED

Diane Lewis-Campbell (“Ms. Lewis-Campbell”) settled a wrongful death claim

following the loss of her son pursuant to section 537.095.1 She now appeals the trial

court’s judgment ordering her and the other claimants to pay their attorney’s fees as

contracted from their share of the settlement proceeds. We affirm.

1 All references to statute are to RSMo Cum.Supp. 2022, unless otherwise indicated.

1 Factual Background and Procedural History

Johnathan Lewis (“Decedent”) died on June 27, 2021, after falling from a cliff

into the Current River on property owned by Karl Scott Lambert and Joseph Scott

Lambert (collectively, “the Lamberts”). Decedent was survived by his mother, Ms.

Lewis-Campbell, and his three minor children, J.A.L., J.L.L., and K.L (collectively,

“Decedent’s children”). Ms. Lewis-Campbell retained counsel to engage with the

Lamberts’ insurers. Ms. Lewis-Campbell’s counsel secured one offer of $1 million to the

class one claimants in exchange for an executed release, and another offer to pay the class

one claimants $1.5 million, amounting to a total settlement of $2.5 million. The mothers

of Decedent’s children hired their own counsel just over one month after the case settled

but before the trial court approved or apportioned any settlement. Apportionment of the

settlement was contested.

The trial court held hearings on the contested apportionment and to approve and

distribute the proceeds of the settlement pursuant to section 537.095. Ms. Lewis-

Campbell proposed each claimant receive a fourth ($625,000 per person) of the

settlement proceeds. She also admitted the attorney’s fees contract between her attorney

and herself into evidence. It provided Ms. Lewis-Campbell would pay her attorneys 40%

of all amounts collected after the lawsuit was filed. The mothers of Decedent’s children

proposed the trial court apportion $100,000 of the settlement to Ms. Lewis-Campbell

with the rest split evenly ($800,000 per child) among Decedent’s children. Each mother

contracted to pay 33 1/3% of any settlement to their attorney for fees, contingent upon

recovery.

2 The trial court approved the settlement as fair and reasonable and apportioned the

funds. Its judgment awarded $250,000 to Ms. Lewis-Campbell and $750,000 to each of

Decedent’s children. The trial court further determined Ms. Lewis-Campbell and

Decedent’s children had valid attorney’s fee contracts with their respective attorneys and

ordered that “each party shall honor their attorney’s fee contract at distribution” and

“[d]educt and pay the expenses of recovery and collection of the judgment and attorney’s

fees as contracted[.]” This appeal followed.

Standard of Review and the Law at Issue

In reviewing the apportionment of wrongful death damages, “[a]n appellate court will reverse the trial court’s judgment only if the ruling is not supported by substantial evidence, is against the weight of the evidence, or erroneously declares or applies the law[.]” Parr v. Parr, 16 S.W.3d 332, 336 (Mo. banc 2000).

Macke v. Patton, 591 S.W.3d 865, 870 (Mo. banc 2019) (alteration in original).

Any party authorized to bring a wrongful death action under section 537.080 may

reach a settlement on behalf of all claimants and seek trial court approval of the

settlement, provided adequate notice is provided to all potential claimants. Section

537.095.1 (“Any settlement or recovery by suit shall be for the use and benefit of those

who sue or join, or who are entitled to sue or join, and of whom the court has actual

written notice.”); see also Braughton v. Esurance Ins. Co., 466 S.W.3d 1, 13 (Mo. App.

W.D. 2015) (“[S]ection 537.095.1 expressly authorizes one wrongful death beneficiary to

serve as the ‘class representative’ for all beneficiaries, whether or not named.”). After

approving a settlement, the trial court follows a two-step process with respect to the

proceeds. First, the trial court apportions the funds “in proportion to the losses suffered

by each as determined by the court.” Macke, 591 S.W.3d at 870-71 (quoting section

3 537.095.3). The trial court is empowered to apportion funds as it deems “fair and just” at

this stage and is not bound by any set percentage or minimal amount of required

recovery. Id. at 871 (quoting section 537.090). Second, the trial court orders the

claimants, in part:

(1) To collect and receipt for the payment of the judgment; [and]

(2) To deduct and pay the expenses of recovery and collection of the judgment and the attorneys’ fees as contracted, or if there is no contract, or if the party sharing in the proceeds has no attorney representing him before the rendition of any judgment or settlement, then the court may award the attorney who represents the original plaintiff such fee for his services, from such persons sharing in the proceeds, as the court deems fair and equitable under the circumstances[.]

Section 537.095.4. The trial court must apportion the settlement proceeds among the

claimants before accounting for attorney’s fees. Parr, 16 S.W.3d at 338, overruled in

part on other grounds by Macke, 591 S.W.3d at 870 n.4; Hess v. Craig, 43 S.W.3d 457,

458-59 (Mo. App. E.D. 2001).

Analysis

Ms. Lewis-Campbell raises two claims of error related to how the trial court’s

judgment awarded attorney’s fees for counsel representing Decedent’s children. We

reject both points.

Point I: The Trial Court did not Err by Ordering Ms. Lewis-Campbell and Decedent’s Children to Pay the Attorney’s Fees “As Contracted”.

Ms. Lewis-Campbell’s Point I reads, “The trial court erred in how it awarded

attorney’s fees because the award violated Rule 4-1.5 of the Missouri Rules of

Professional Conduct in that” the fees paid to the attorney representing Decedent’s

4 children are unreasonable.2 Ms. Lewis-Campbell argues that the trial court should have

reduced the attorney’s fees awarded to the attorney for Decedent’s children and then

reallocated the difference from those reduced attorney’s fees to herself. Specifically, that

the attorney’s fees paid by Decedent’s children be reduced to $250,000 in total down

from $750,000. According to Ms. Lewis-Campbell, because the contracted attorney’s

fees paid to the attorney for Decedent’s children were “unreasonable” per Rule 4-1.5, the

contract between Decedent’s children and their attorney was void, and the trial court

should have therefore adjusted the contracted rate rather than award fees “as contracted”

under section 537.095. She argues that, once the attorney’s fees awarded to the attorney

for Decedent’s children are reduced, that reduction “will need to be reapportioned,

including to [Ms. Lewis-Campbell].” Essentially, to reach Ms. Lewis-Campbell’s desired

results, the trial court would need to reapportion the entire settlement among the

claimants to reach new attorney’s fees amounts she deems appropriate for all attorneys

involved.

The Rules of Professional Conduct define a lawyer’s role and professional

standards for attorney disciplinary purposes. Rule 4, Scope, paragraph [14]. Rule 4-1.5

prohibits attorneys from charging unreasonable fees and expenses based on the

consideration of eight non-exhaustive factors. Rule 4-1.5, Comment, paragraph [1]. A

violation of this rule can warrant discipline, and we may use the Rules to evaluate the

reasonableness of attorney’s fees. Landwehr v. Hager, 612 S.W.3d 220, 225 (Mo. App.

E.D. 2020). But “violation of a Rule does not necessarily warrant any other

nondisciplinary remedy[.]” Id. (quoting Rule 4, Scope, paragraph [20]). “Furthermore,

2 All rule references are to Missouri Court Rules (2023), unless otherwise indicated.

5 the purpose of the Rules can be subverted when they are invoked by opposing parties as

procedural weapons.” State ex rel. Wallace v. Munton, 989 S.W.2d 641, 644 (Mo. App.

S.D. 1999) (quoting Rule 4, Scope, paragraph [20]).

To determine whether the trial court should have considered Rule 4-1.5, we are

guided by the plain language of section 537.095. See Parktown Imports, Inc. v. Audi of

Am., Inc., 278 S.W.3d 670, 672 (Mo. banc 2009) (“This Court’s primary rule of statutory

interpretation is to give effect to legislative intent as reflected in the plain language of the

statute at issue.”). Section 537.095 provides a trial court may allocate attorney’s fees in a

“fair and equitable” manner among the settlement beneficiaries but only “if there is no

contract, or if the party sharing in the proceeds has no attorney representing him before

the rendition of any judgment or settlement[.]” Section 537.095.4(2). If a contract for

representation exists, the trial court must award them “as contracted[.]” Id. There is no

room in this language to weigh Rule 4-1.5, the reasonableness of attorney’s fees, or any

other factor. “The statute simply does not permit the trial court or this court to consider

the question of conscionability or fairness where a valid contract between attorney and

client is in evidence.” Keene v. Wilson Refuse, Inc., 788 S.W.2d 324, 327 (Mo. App.

E.D. 1990), overruled in part on other grounds by Macke, 591 S.W.3d at 870 n.4.

Our interpretation of section 537.095 aligns with precedent. Keene held a

settlement beneficiary did not have to pay the fees for the original claimant’s counsel

when he retained his own attorney for the settlement-approval proceedings. Keene, 788

S.W.2d at 327. Instead, per section 537.095, each claimant paid their own fees as

contracted. Id. Other districts of this Court have similarly determined claimants pay

their attorney’s fees “as contracted” without qualification. See Collins v. Hertenstein,

6 181 S.W.3d 204, 215 (Mo. App. W.D. 2005) (affirming an attorney’s fees award based

on a contract between counsel for appellant and cross-appellant’s law firm); see also

Kavanaugh v. Mid-Century Ins. Co., 937 S.W.2d 243, 247 (Mo. App. W.D. 1996)

(“Section 537.095.4(2) requires the court to order payment of attorney fees as

contracted.”); Glasco v. Fire & Cas. Ins. Co., 709 S.W.2d 550, 555 (Mo. App. W.D.

1986) (stating similar).3 The Supreme Court of Missouri also clarified that a settlement

apportionment being “grossly excessive or inadequate” is irrelevant to the applicable

standard of review. Macke, 591 S.W.3d at 870 n.4 (quoting Parr, 16 S.W.3d at 336).

Following Macke, our standard of review does not examine whether the trial court’s

award of contracted attorney’s fees was reasonable, excessive, or fair.

Notwithstanding cases like Keene, Ms. Lewis-Campbell asserts we should follow

Clark v. General Motors, LLC, 161 F.Supp.3d 752 (W.D. Mo. 2015). In Clark, the

United States District Court for the Western District of Missouri rejected a wrongful

death settlement because of an attorney’s fee arrangement. Id. at 769. It decided to

evaluate the fee arrangement using Rule 4-1.5’s factors and then recalculated the

attorney’s fees at a quantum meruit rate. Id. at 758-69.

We find Clark has limited value here. Clark premised the application of Rule 4-

1.5 on Eng v. Cummings, McClorey, Davis & Acho, PLC, 611 F.3d 428 (8th Cir. 2010),

which did not address section 537.095. 161 F.Supp.3d at 759. The approach of

Missouri’s federal courts to section 537.095 is also, at best, inconsistent. Some courts

apply Rule 4-1.5 to the attorney’s fee award. E.g., Lang v. Mino Farms, Inc., No. 15-

3 Collins, Kavanaugh, and Glasco were all overruled in part on other grounds by Macke, 591 S.W.3d at 870 n.4.

7 CV-6069-SJ-DGK, 2016 WL 4031230, at *2 (W.D. Mo. July 26, 2016). Several others

conclude they cannot modify a contract for attorney’s fees based on section 537.095’s

plain wording. See, e.g., Flowers v. United States, No. 17-01028-CV-W-LMC, 2021

WL 412275, at *4 (W.D. Mo. Feb. 5, 2021) (“[T]his Court is tasked only with

determining that a contract between the parties existed and if so, then approving payment

under the contract.”); see also Lewis v. Blue Springs Sch. Dist., No. 4:17-CV-00538-

NKL, 2018 WL 1126751, at *2 (W.D. Mo. Mar. 1, 2018) (“[I]f plaintiff, and her

husband, have signed a fee agreement, a court cannot modify this contract when

approving the wrongful death settlement.”); Brown v. Davis, No. 4:12-CV-00649-AGF,

2015 WL 331495, at *3 (E.D. Mo. Jan. 26, 2015) (“[P]ursuant to Mo.Rev.Stat. [section]

537.095.4, the Court orders Plaintiffs, upon collection and receipt of their portions of the

judgment, to pay any attorneys’ fees and expenses as contracted out of their respective

portions.”), aff’d, 813 F.3d 1130, 1139 (8th Cir. 2016).

Thankfully we need not resolve this apparent conflict in federal jurisprudence.

Though they can be persuasive, federal district court decisions are not binding on this

Court. CACV of Colo., LLC v. Muhlhausen, 345 S.W.3d 258, 260 (Mo. App. S.D.

2011). We are instead bound by the latest decisions of the Supreme Court of Missouri.

Nationwide Transfer LLC v. Neally L., LLC, 674 S.W.3d 488, 492 (Mo. App. S.D.

2023). The Supreme Court of Missouri instructs us to read section 537.095 as written.

See Am. Fam. Mut. Ins. Co. v. Ward, 774 S.W.2d 135, 137 (Mo. banc 1989)

(interpreting section 537.095 using its plain and natural meaning). Our reading confirms

the trial court did not err by ordering Ms. Lewis-Campbell and Decedent’s children to

deduct and pay the attorney’s fees “as contracted.” Point I is denied.

8 Point II: The Trial Court did not Err by not Awarding Attorney’s Fees to Ms. Lewis- Campbell’s Counsel from the Settlement Proceeds Apportioned to Decedent’s Children.

Ms. Lewis-Campbell argues in her second point that the trial court erred in how it

awarded attorney’s fees because section 537.095.4(2) requires fees to be apportioned to

the settling law firm, her attorneys, and not counsel for Decedent’s children. Section

537.095.4(2) authorizes trial courts to order all settlement beneficiaries to pay the

attorney’s fees for the original plaintiff who filed and requested court approval of the

settlement. However, this provision only applies if there is no contract or “if the party

sharing in the proceeds has no attorney representing him before the rendition of any

judgment or settlement[.]” Minor v. Terry, 475 S.W.3d 124, 135 (Mo. App. E.D. 2014)

(quoting section 537.095.4(2)), overruled on other grounds by Vacca v. Missouri Dep't

of Lab. & Indus. Rels., 575 S.W.3d 223, 235 (Mo. banc 2019).

Ms. Lewis-Campbell does not dispute Decedent’s children had counsel or a

contract for representation. She nonetheless maintains section 537.095.4(2) requires

Decedent’s children to contribute to her attorney’s fees because no attorney represented

them “prior to the settlement[.]” Ms. Lewis-Campbell believes her interpretation of the

statute is correct because it will then “award fees to the attorney who actually did the

work to secure a settlement for wrongful death beneficiaries” as opposed to counsel for

Decedent’s children, who she describes as a “last-minute attorney benefiting handsomely

from something he had no part in creating.” This argument is rooted in notions of

fairness and, as such, is not viable in light of section 537.095. Keene, 788 S.W.2d at 327.

The statute’s plain language permits a sharing of attorney’s fees only if

Decedent’s children had no counsel “before the rendition of any judgment or

settlement[.]” Section 537.095.4(2) (emphasis added). “Rendition” refers to “making,

9 delivering, or giving out, such as a legal decision[.]” BLACK’S LAW DICTIONARY 1550

(11th ed. 2019). “A court’s written order is ‘rendered’ upon filing.” Id. Because a

wrongful death settlement only becomes effective for all claimants upon “approval of any

circuit court,” the judgment approving the settlement is the operative “rendition” here.

Section 537.095.1. Until its approved, a settlement is subject to rejection and thus not

rendered. While Decedent’s children did not retain counsel before Ms. Lewis-Campbell

secured a proposed settlement, they did have legal representation before the trial court

rendered the judgment by approving it. The attorney’s fee sharing provision of section

537.095.4(2) therefore did not apply.

Moreover, courts must read statutes to avoid absurd results that defeat the purpose

of the legislation. Wood v. Dir. of Revenue, 668 S.W.3d 292, 301 (Mo. App. S.D. 2023).

One purpose of section 537.095 is to enable claimants to intervene “[w]hen any

settlement is made” but “before any judgment is entered or settlement [is] approved[.]”

Section 537.095.2. This language clearly contemplates parties defending their interests

through separate counsel before a settlement is approved and apportioned. See, e.g.,

Martin v. Busch, 360 S.W.3d 854, 858 (Mo. App. E.D. 2011) (appellants sought

intervention “before the settlement had been approved by the circuit court”); see also

Glasco, 709 S.W.2d at 552 (decedent’s father intervened after decedent’s mother and

grandmother obtained a settlement offer). A right of intervention is necessary because,

once a wrongful death settlement is achieved, “the respective claimants become

adversaries in the carving of the pie, and all are entitled to the unencumbered services

of their individual counsel.” Floyd v. Shaw, 830 S.W.2d 564, 566 (Mo. App. E.D.

1992) (emphasis added).

10 Following Ms. Lewis-Campbell’s reading of the statute, Decedent’s children

could intervene, but they would have to pay her attorney’s fees because she accepted a

settlement offer first. This creates an absurd result of effectively undermining the

statutory right of intervention. If intervening claimants have to pay their attorney’s fees

in addition to the original claimant’s fees, they will be uniquely disadvantaged to contest

apportionment. This arrangement could be particularly unjust where the original

claimant’s proposal is inequitable and requires protracted litigation. Given this absurd

result and Ms. Lewis-Campbell’s failure to identify any authority adopting her

interpretation of the statute, we reject it. Point II is denied.

Conclusion

Ms. Lewis-Campbell’s interpretations of section 537.095 under Points I and II are

contrary to its plain language. The statute does not permit trial courts to modify

contracted attorney’s fees using Rule 4-1.5, and it provides fee sharing only when

claimants have no contracted counsel before the rendition of the settlement. The trial

court’s judgment is affirmed.

JENNIFER R. GROWCOCK, J. – OPINION AUTHOR

JEFFREY W. BATES, J. – CONCURS

DON E. BURRELL, J. – CONCURS