Kuczwara v. Continental Baking Co.

24 S.W.3d 712, 1999 Mo. App. LEXIS 2475, 1999 WL 1256442
CourtMissouri Court of Appeals
DecidedDecember 28, 1999
DocketNo. ED 75768
StatusPublished
Cited by2 cases

This text of 24 S.W.3d 712 (Kuczwara v. Continental Baking Co.) 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
Kuczwara v. Continental Baking Co., 24 S.W.3d 712, 1999 Mo. App. LEXIS 2475, 1999 WL 1256442 (Mo. Ct. App. 1999).

Opinion

KENT E. KAROHL, Judge.

This is an appeal of an order from the Labor and Industrial Relations Commission (Commission) modifying the award of attorney’s fees in a workers’ compensation action. We reverse and remand.

There is evidence to support finding the following facts. Zdzislaw Kuczwara (claimant) was injured while working for Continental Baking Company (employer). Attorney Ray A. Gerritzen provided legal services to claimant from March 1994 to January 1996 on a twenty-five percent contingency fee basis. On January 5, 1996 claimant notified Gerritzen by letter “of termination of attorney representation and instructions to withdraw as [his] attorney in any and all claims and cases.” A claim against employer and the Second Injury Fund (Fund) was pending. In response, Gerritzen sent a letter to claimant asserting an attorney’s lien and his pay rate of $220 per hour. He informed claimant of the extensive hours worked and the likelihood that his attorney’s fee would exceed any award received in the worker’s compensation action. Thereafter, claimant employed attorney Herbert Price to replace Gerritzen.

On June 20, 1996 Price filed a “Withdrawal of Attorney, Herb Price, For Employee, Zdislaw Kuczwara.” In his prayer for relief, Price requested to withdraw as attorney and file an attorney’s hen for twenty-five percent of a $39,000 settlement he negotiated for claimant. Claimant did not accept the terms of the settlement. The same day, ALJ Dowd wrote “[s]o ordered” on Price’s motion.

The hearing on the claim began November 5, 1996, and claimant appeared pro se. At trial, Gerritzen testified concerning his claim for an attorney fee hen. He offered into evidence various exhibits in support of his claim, including his original attorney hen letter and documentation regarding the legal services provided to claimant. Price offered no evidence regarding his legal services rendered for the claimant or an attorney’s hen. Price declined an invitation to prove up his attorney’s fee, but cross-examined Gerritzen on the reasonableness of Gerritzen’s attorney’s fee.

On June 5, 1997 the ALJ entered his findings of fact and rulings of law finding that “[t]he compensation awarded to the claimant shah be subject to a hen in the amount of $5,674.02 of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant and expenses incurred: Ray A. Gerritzen, Esq.” The ALJ awarded Ger-ritzen a gross attorney’s fee of $6500 plus expenses in the amount of $424.02. Subtracting a credit of $1250 for attorney’s fees Gerritzen received from the Fund settlement, the ALJ awarded him a net fee of $5250 plus expenses. The ALJ noted that Price also received $1250 in attorney’s fees from a settlement with the Fund and made no separate award of attorney’s fees to Price.

The ALJ’s findings specifically set forth that “Attorney Ray A. Gerritzen offered a listing of his legal services rendered to the claimant, a copy of the claimant’s discharge of Mr. Gerritzen, and an exhibit hst prepared by Mr. Gerritzen.” Additionally, the ALJ found that claimant terminated Gerritzen’s legal representation on January 8, 1996 in favor of Price. Neither attorney offered copies of claimant’s signature on a contract for legal representation.

On February 3, 1998 a circuit court entered “judgment on order of Missouri Workers Compensation ALJ Dowd of June 20,1996” that allowed Price to withdraw as claimant’s attorney and assert a hen in the amount of twenty-five percent of the stipulation for settlement in the amount of $39,-000. Gerritzen filed a motion requesting clarification of attorney’s fees awarded to Price. Employer filed a similar motion requesting clarification. On March 6, 1998 the Commission ordered the following in pertinent part:

[714]*714Employee’s former attorney, Herb Price, has filed an Application for Review which also is entitled “Motion in Nature of Rule 20-2.030(2), to Present Evidence at a Hearing.” Attorney Price seeks to submit evidence that he negotiated a settlement in the amount of approximately $40,000.00, for which an attorney fee was awarded to Mr. Price. His client declined the settlement and the case proceeded to trial with the claimant acting pro se. Mr. Price states that he received no notice or an opportunity to be heard regarding his attorney hen.
The record indicates that attorney Price had, at least, actual notice of the proceedings in this case as he was present at trial and cross examined attorney Ray Gerritzen regarding the reasonableness of his fees. Mr. Price was given an opportunity to present evidence regarding his attorney fee but he just was not prepared (Tr. 19, 49). Nothing indicates that the evidence Mr. Price desires to present to the Commission is newly discovered or could not have been presented to the administrative law judge with due diligence. The Motion to Submit Additional Evidence is denied.
The Motion to Clarify the Award of Attorneys Fees is stayed pending final disposition of the claimant’s Application for Review on the merits.

(Emphasis added). On May 27, 1998 the Commission found:

Claimant did not raise the issue of attorney’s fees in his Application for Review. We note, however that while both of claimant’s previous attorneys asserted liens in the case, the award grants a fee only to Ray Gerritzen. We modify the award to also note the hen of attorney Herb Price. Having considered the record presented, we find an attorney’s fee of 12.88% is warranted. Under Hunt v. Laclede Gas Co., 869 S.W.2d 770, 773-774 (Mo.App. E.D.1993), we have no authority to apportion fees among the attorneys.
Finally, on February 9, 1999 the Commission entered the following order:
On February 1, 1999, Attorney Ray A. Gerritzen filed a Motion to Reconsider and Adopt the Findings of Judge Koh-ner Regarding Attorney’s Fees. On February 4, 1999, Attorney James G. No-wogroeki filed a Motion for Attorney Lien and Amendment of Final award. Mr. Gerritzen’s Request for Reconsideration and Mr. Nowogrocki’s motion are denied. On February 4, 1999, Attorney Herb Price filed a Motion to Overrule or Dismiss Mr. Gerritzen’s Motion to Reconsider Attorney Fees. In light of our ruling on Mr. Gerritzen’s Motion, Mr. Price’s motion is denied as moot.

Gerritzen appeals the modification of the attorney’s fee only 1. In his sole point on appeal, Gerritzen argues that the Commission erred by finding that it did not have authority to determine the issue of attorney’s fees and, thus, erred in reversing the ALJ’s award of $5,674.02. He submits that: (1) section 287.260.1 RSMo 1994 and Missouri case law give exclusive power and authority to the Commission to award attorney’s fees based on the record; and, (2) the Commission’s reliance on Hunt is inapplicable and misplaced where that case involved a corporation’s division of attorney’s fees between its employees.

We will reverse the Commission’s order regarding attorney’s fees only if it is established, as a matter of law, that the award was “so inadequate and so unreasonable to constitute an abuse of discretion.” Faulkner v. St. Luke’s Hosp., 903 S.W.2d 588, 594 (Mo.App. W.D.1995); Sanderson v. Producers Comm’n Ass’n, 241 S.W.2d 273, 275 (Mo.App.1951).

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24 S.W.3d 712, 1999 Mo. App. LEXIS 2475, 1999 WL 1256442, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kuczwara-v-continental-baking-co-moctapp-1999.