Whalen v. Estate of Roberts

711 S.W.2d 587, 1986 Mo. App. LEXIS 4226
CourtMissouri Court of Appeals
DecidedJune 10, 1986
DocketNo. 49653
StatusPublished
Cited by8 cases

This text of 711 S.W.2d 587 (Whalen v. Estate of Roberts) 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
Whalen v. Estate of Roberts, 711 S.W.2d 587, 1986 Mo. App. LEXIS 4226 (Mo. Ct. App. 1986).

Opinion

SNYDER, Judge.

This is an appeal from a judgment of the probate division of the St. Louis County circuit court which awarded $7,633.57 on a claim for legal services and expenses. The award was made to lawyers who represented the decedent on a motion to modify a dissolution decree. The client died before the litigation was concluded. No fees had been awarded in the dissolution proceeding prior to the client’s death. The judgment is affirmed in part and reversed in part with directions.

Appellants rely on four alleged trial court errors: 1) the decision is contrary to the weight of the evidence and thus arbitrary, capricious and an abuse of discretion; 2) appellant’s witness should have been allowed to testify regarding what he said to decedent; 3) the trial court erred in denying appellants’ request for a change of judge; and 4) the trial court erred in refusing to allow a witness to testify about his familiarity with the decedent’s handwriting.

Appellants filed a claim against the decedent’s estate in the sum of $17,625.80 for legal fees and $633.57 for expenses. The trial court order found that appellants, their associates and employees spent at least 279 hours working on the case. The hourly figure includes time spent on an appeal from an order dismissing the motion for modification. The appeal was successful, Roberts v. Roberts, 654 S.W.2d 613 (Mo.App.1982). The motion to modify was then returned to the circuit court for further consideration. Before the court could hear the case, Mrs. Roberts died.

The trial court denied appellants’ request for a change of judge based on Rule 51.05. The case was heard and the trial court entered an order allowing appellants’ claim, but only in the amount of $7,000 for legal services and $633.57 for expenses. The trial court, when it awarded substantially less than the claimants requested, took into consideration factors other than the time spent which are prescribed in the canons and the cases. This appeal followed.

In point one appellants contend that the trial court’s judgment was contrary to the weight of the evidence, making its decision arbitrary and capricious and an abuse of the court’s discretion. Appellants argue that the hours they worked on the case and the total fee requested were reasonable and necessary, and therefore the trial court’s award of less than 50% of the amount requested was error. Point one is denied.

The standard of appellate review in this court-tried case requires this court to affirm the trial court's judgment unless there is no substantial evidence to support it; it is against the weight of the evidence; or it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 [1-3] (Mo. banc 1976). Appellate courts are di[589]*589rected also in Murphy v. Carrón to exercise the power to set aside a judgment on the ground that it is against the weight of the evidence with caution and with a firm belief the judgment is wrong. This narrow scope of review is further constricted by this court’s acknowledgement that a trial court has broad discretion in determining the reasonableness of attorney’s fees. In re Estate of Black v. Cantrell, 693 S.W.2d 899, 900-01 [1] (Mo.App.1985); Kays v. Curtis, 648 S.W.2d 901, 903 [3] (Mo.App.1983).

In determining the proper amount of attorney’s fees in a given case, the trial court should consider factors in addition to time. German Evangelical St. Marcus Congregation v. Archambault, 404 S.W.2d 705, 711 [11] (Mo.1966); Scott v. Home Mutual Telephone Company, 510 S.W.2d 793, 795 (Mo.App.1974).

The trial court noted in its order that the factors mentioned in Scott are essentially the factors listed in DR 2-106, Fees for Legal Services, in the Code of Professional Responsibility, Missouri Supreme Court Rule 4, Rule 1.5. The trial court listed the enumerated factors and then applied the pertinent factors to the evidence in the case, finding a number of factors that justified reducing the amount of the requested fee which was calculated solely on the time expended.

The skill required to perform the legal tasks involved was not extraordinary, as evidenced by the fact that several of the tasks were performed by a law student who was paid for his time at $8 per hour, but whose time was billed to the client at $60 per hour. The disputed issue on the appeal from the trial court’s initial dismissal of the motion was whether the original maintenance award was contractual or de-cretal.

Appellants emphasize that the husband resisted every step of the way and filed many motions and discovery pleadings, to which responses had to be filed. It is true that the decedent’s motion to modify was fought at every opportunity and that more time was required than in an ordinary motion to modify proceeding. Nonetheless, the legal issues were not complex and in the end the client gained nothing.

No evidence was presented that acceptance of decedent’s case precluded appellants from other employment. The support increase decedent requested in the motion to modify could not have been a substantial amount. The decedent never received any benefit from the legal services because she died before the final determination of her claim.

Appellants’ main contention was that the fee requested was reasonable based on the time they spent on the case — 279 hours. An experienced domestic relations lawyer testified as an expert witness that the hourly fee appellants charged was reasonable and within the limits customarily charged by attorneys in the locality for similar legal services. He also testified, however, that several of appellants’ charges were high in this case including the charge for the appeal, the charge for photocopies, and the charge for the law student’s time.

There was substantial evidence to support the trial court’s decision. There is not the requisite firm belief that the judgment was wrong. It was not against the weight of the evidence nor did the trial court erroneously declare or apply the law when it determined that $7,000 was a reasonable amount for legal expenses and allowed appellants’ claim in full for the costs of $633.57. Point one is denied.

Appellants sought $18,259.37 “plus interest” in the claim against the estate. The trial court did not include pre-judgment interest in its order. Appellants do not raise a specific point on this issue but in a three-line paragraph included in their first point, contend that the trial court erred in not allowing interest on each of their bills from the date of the bill until the date of payment. This court agrees.

An order allowing a claim against an estate has the effect of a judgment and bears interest at the legal rate, unless the claim provides for a different rate. Section [590]*590473.403 RSMo.1978. The legal rate of interest is nine percent. Section 408.020 RSMo.1978. This statute allows a creditor pre-judgment interest on liquidated claims after demand for payment is made. General Aggregate Corp. v. Labrayere,

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Koppe v. Campbell
318 S.W.3d 233 (Missouri Court of Appeals, 2010)
Tobin v. Jerry
243 S.W.3d 437 (Missouri Court of Appeals, 2007)
Transamerica Insurance Co. v. Pennsylvania National Insurance Companies
908 S.W.2d 173 (Missouri Court of Appeals, 1995)
State ex rel. Stephens v. Lamb
883 S.W.2d 101 (Missouri Court of Appeals, 1994)
Johnson Group, Inc. v. Beecham, Inc.
952 F.2d 1005 (Eighth Circuit, 1991)
State Ex Rel. Nassau v. Kohn
731 S.W.2d 840 (Supreme Court of Missouri, 1987)
Bradford v. Union Trust Company
47 S.W.2d 536 (Court of Appeals of Kentucky (pre-1976), 1932)

Cite This Page — Counsel Stack

Bluebook (online)
711 S.W.2d 587, 1986 Mo. App. LEXIS 4226, Counsel Stack Legal Research, https://law.counselstack.com/opinion/whalen-v-estate-of-roberts-moctapp-1986.