State v. Van Black

715 S.W.2d 568, 1986 Mo. App. LEXIS 4598
CourtMissouri Court of Appeals
DecidedAugust 28, 1986
DocketNo. 14535
StatusPublished
Cited by4 cases

This text of 715 S.W.2d 568 (State v. Van Black) 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
State v. Van Black, 715 S.W.2d 568, 1986 Mo. App. LEXIS 4598 (Mo. Ct. App. 1986).

Opinion

CROW, Chief Judge.

Bates County, Missouri, appeals from a judgment awarding Louis C. Accurso (“Ac-curso”) $8,254.62 for his services and expenses as “special prosecuting attorney” in an arson case styled, “State of Missouri v. Thomas Van Black.

On February 1, 1984, a complaint was filed in the Circuit Court of Bates County, Associate Division, accusing Thomas Van Black (“Black”) of the class C felony of arson in the second degree, § 569.050, RSMo 1978. Black is the son-in-law of an elected Bates County official.

That same day, the Prosecuting Attorney of Bates County filed a written request to withdraw from the case “upon the grounds that he is interested in the case and that such interest is inconsistent with the duties of his office.” The request included a prayer that the court “appoint a special prosecutor.”

The procedural steps that ensued need not be detailed. It is sufficient to note that the cause was ultimately transferred to St. Clair County on a change of venue, and that the trial court formally appointed Ac-curso special prosecuting attorney by an order dated January 9, 1985.

Trial (by jury) began June 17, 1985, and consumed three days. Black was found guilty as charged, and sentenced to a six-month jail term.

Immediately after allocution and sentencing, Accurso presented to the trial court an itemized statement of the services he had rendered and the expenses he had incurred. The statement, as we comprehend it, shows a total of 160 hours, for which there is an aggregate charge of $7,270, and expenses totaling $984.62. Expenses included long distance telephone calls, mileage, overnight accommodations, and other items. Accur-so, as we understand his explanation to the trial court, charged for his time at the rate of $60 per hour. However, dividing the total fee ($7,270) by the total hours (160) yields an hourly rate of only $45.44. The reason for this may lie in Accurso’s explanation that a paralegal and a messenger performed services in the case at his direction. The charge for their time was evidently less than for his.

In any event, the trial court, after hearing Accurso’s comments, stated:

“The Court has reviewed Mr. Accur-so’s bill in this matter. The Court is aware of the time involved not only in the trial but in preparatory work for the trial, and based upon the reasonable fee and the customary fee in this particular area the Court would find that Mr. Ac-curso’s fee is reasonable, necessary, and customary fee for this type of legal service and the Court will approve his request for attorney’s fees in the amount of $8,254.62 which includes both time for [570]*570services and reimbursement for expenses.”

A formal judgment to that effect was entered October 22, 1985. This appeal followed.

Accurso’s law firm, Spradley & Wirken, appears here as a respondent, along with Accurso. The firm’s reason for doing so is evidently because the judgment provided that Accurso, “through the law firm of Spradley & Wirken, A Professional Corporation, have judgment ... against Bates County, Missouri pursuant to Mo.Rev.Stat. § 56.130 and § 550.030.” Accurso, in explaining his bill to the trial court, had related that the “out-of-pocket expenses” had been advanced by the firm.

Section 56.130, RSMo 1978, deals with the subject of compensation for an attorney appointed by the court to prosecute a criminal case when the prosecuting attorney is “interested” in the case. It states:

“The person appointed shall possess the same power as the proper officer would if he was present and shall receive a reasonable fee for each case prosecuted to be fixed by the court and to be taxed and paid as other costs in criminal cases.”

Section 550.030, RSMo 1978, provides, in pertinent part:

“When the defendant is sentenced to imprisonment in the county jail ... and is unable to pay the costs, the county ⅛ which the indictment was found or information filed shall pay the costs....”

Appellate courts rarely receive appeals by counties from judgments against them for attorneys’ fees. There is, however, one recent case where the issue is fully discussed.

In Roberts v. McNary, 636 S.W.2d 332 (Mo. banc 1982), a taxpayer, relying on the “Hancock Amendment,” Mo. Const. art. X, §§ 16-24 (adopted 1980), filed a declaratory judgment action seeking to prevent a county from implementing certain increases in fees for county services. The trial court granted relief, and awarded the taxpayer a judgment against the county for attorneys’ fees and costs. On appeal by the county, the Supreme Court stated:

“The trial court is considered to be an expert on the question of attorneys’ fees. The court that tries a case and is acquainted with all the issues involved may fix the amount of attorneys’ fees without the aid of evidence. Nelson v. Hotchkiss, 601 S.W.2d 14, 21 (Mo. banc 1980). The setting of attorneys’ fees is within the sound discretion of the trial court and should not be reversed unless the award is arbitrarily arrived at or is so unreasonable as to indicate indifference and lack of proper judicial consideration. Id. In the absence of evidence to the contrary, it is presumed that the allowance of attorneys’ fees was for compen-sable services and that no allowance was made for non-compensable services. Id. Thus, the burden was on appellants to affirmatively establish that the compensation allowed was a clear or manifest abuse of sound judicial discretion. Id.; Sebree v. Rosen, 393 S.W.2d 590, 599 (Mo.1965). Moreover, in the absence of contrary evidence, the trial court is presumed to know the character of the services rendered in duration, zeal and ability, and to know the value of them according to custom, place, and circumstance. Nelson v. Hotchkiss, 601 S.W.2d at 21.”

Roberts, 636 S.W.2d at 338.

The Supreme Court, emphasizing that an award of reasonable attorneys’ fees was authorized by § 23 of the Hancock Amendment, found no abuse of discretion by the trial court in fixing the fee, and consequently upheld the award. Id.

Bates County, henceforth referred to as “appellant,” filed a brief containing two assignments of error. However, prior to submission, appellant withdrew Point I. The remaining assignment of error, Point II, states:

“The trial court erred in awarding special prosecutor’s fees of $8,254.62 in that such an award was unreasonable when compared to other fees paid for prosecution of criminal cases in Bates County as the special prosecutor was not involved [571]*571in the preliminary hearing but only in presentation of the trial itself and had no other special duties that are required of the duly elected prosecuting attorney.”

In asserting that Accurso was involved “only in presentation of the trial itself,” the point ignores entries on Accurso’s itemized statement listing work he did on 16 different dates prior to trial.

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715 S.W.2d 568, 1986 Mo. App. LEXIS 4598, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-van-black-moctapp-1986.