1

PEPPERS CEMETERY FOUNDATION, ) ) Plaintiff-Appellant, ) and ) ) OPAL MASSEY, ) ) Plaintiff-Respondent, ) v. ) No. SD33320 ) DANNY W. MCKINNEY, TRUSTEE ) Filed: Feb. 4, 2015 of the Revocable Living Trust Agreement ) of Norman C. Bennett and Pearl L. Bennett; ) DANNY W. MCKINNEY, individually; ) NADINE M. MCKINNEY, and TRINITY ) EVANGELICAL LUTHERAN CHURCH ) OF LEBANON, MISSOURI, ) ) Defendants-Respondents. )

APPEAL FROM THE CIRCUIT COURT OF LACLEDE COUNTY Honorable Steven B. Jackson, Associate Circuit Judg e

AFFIRMED Plaintiff Peppers Cemetery Foundation ("Foundation ") appeals the portion of a judgment of the probate division of the circuit cou rt ("the trial court") that ordered Foundation to pay $2,000 to Plaintiff Opal Massey ( "Respondent") for attorney fees she incurred ("the additional attorney fees") in connec tion with her motion to enforce a settlement agreement the parties had reached in the ir lawsuit over the proper2

administration and distribution of the assets of a trust. 1 The payment of other specified attorney fees to separate lawyers for Foundation ($ 1,500) and Respondent ($13,500) ("original attorney fees") from the trust had been agreed upon in a Memorandum of Agreement ("the Memorandum") signed on behalf of al l parties (as well as counsel for the represented parties) at the conclusion of a May 2012 mediation session. 2

Foundation contends the trial court erred in awardi ng the additional attorney fees "as a result of [Foundation's] attempt to inquire i nto the reasonableness of" Respondent's original attorney fees "because the reasonableness of the attorney's fee claim is an implied term of the mediated settlement." Because the trial court had broad discretion

under section 456.10-1004 3 to award reasonable attorney fees, and Foundation has failed to prove that the trial court abused that discretio n, we affirm. Facts and Procedural Background In February 2012, Respondent and Foundation, as be neficiaries of the trust, filed their joint petition, which asserted nine counts fo r relief. In March 2012, the parties stipulated that they would complete mediation withi n 90 days. Foundation agrees in its brief (citing the enforcement motion) that mediatio n was held, and "the parties set out the essential terms of an agreement for settlement of t he case" in the Memorandum. The Memorandum, dated May 14, 2012, provided for th e payment of specific sums from the trust to Foundation, Respondent, the Church, and Mr. McKinney. It then provided:

From the balance left in the trust is to be deducte d $1,500.00 attorney fees to Angela C. Rieschel [("Foundation c ounsel")] and

1 We will refer to Trinity Evangelical Lutheran Chur ch of Lebanon, Missouri as "the Church". Foundatio n and Respondent are the only parties that have filed a brief in this appeal. 2 Counsel for the Church subsequently entered the ca se in December 2013. 3 RSMo Cum. Supp. 2012.3 $13,500.00 attorney fees to Heather McBride [("Resp ondent counsel")]. After those amounts are deducted, the balances of p roceeds are to be divided one fourth each to the [Church], [Responden t], [Foundation,] and [Mr.] McKinney. [Mr.] McKinney is responsible for paying David Wilhite's attorney fees [Mr. Wilhite had represente d the McKinneys individually and Mr. McKinney as successor trustee]

. This agreement resolves all issues in the above st yled case. In its statement of facts, Foundation asserts 4 that on October 17, 2012, "the parties reached agreement that a circulated settlement agre ement contained correct terms." Foundation subsequently notified Respondent that "i t would not sign the settlement agreement" and "[s]tarting on October 24, 2012, [Fo undation] sought an itemized statement of [Respondent's] attorney fee invoices f or [Respondent's counsel] verifying the $13,500 incurred by [Respondent]." In February 2014, Respondent filed the enforcement motion, which incorporated an unexecuted "Settlement and Release Agreement" (" the Settlement Agreement"), other documents related to the Settlement Agreement, and Respondent counsel's affidavit affirming the truth of the matters stated in the en forcement motion. The enforcement motion also sought additional attorney fees against Foundation in favor of Respondent for services performed in "the researching, drafting, f iling, and argument of" the enforcement motion, and it stated that the attorney fees had "e xceed[ed] the amount set forth in the Memorandum[.]" Respondent argued that the enforcem ent motion "would not have been necessary but for [Foundation's] refusal to sign do cuments evidencing the agreement it and the other parties to this case made following m ediation in May 2012." The McKinneys also joined in the enforcement motion.

4 Foundation cites assertions in Respondent's enforc ement motion as the record supporting the statement s of fact addressed in this paragraph.4 A February 13, 2014 hearing was held on the matter, but it was not recorded. The next day, the trial court entered an order stating that all parties had agreed that the Memorandum was "enforceable, and that all parties [ were] in agreement that the

settlement documents" also included with the enforc ement motion were "correct." The order noted that "Foundation argued it should be pe rmitted to review [Respondent's] attorney fees invoices for reasonableness of the fe es." The order also stated that Respondent objected on the grounds of privilege and argued that the Memorandum did not require any review for reasonableness, but "[t] o dispose of this matter," Respondent

asked the trial court to review the invoices " in camera and under seal[.]" The order also stated that "Foundation agreed to the same." Respo ndent counsel was ordered to submit "her firm invoices for work performed and costs inc urred by [Respondent] in the abovecaptioned matter." Finally, the order stated that the trial court would review the "invoices for reasonableness, and the Court's determination o f the same shall be final and binding on all parties." On March 4th, the trial court entered an order sust aining the enforcement motion and directing the parties "to execute the [Settleme nt Agreement], and all exhibits thereto," in a form revised to show counsel for the Church and current dates for the

execution of the documents. The order reflected th e receipt of "itemized copies of all attorney fees and costs incurred by [Respondent] fr om the inception of this matter to date." It found that original attorney fees of $13 ,500 referenced in the Memorandum for Respondent counsel were "appropriate and reasonable for the services performed by [Respondent's] counsel on her behalf in this matter ." It sustained Respondent's request for additional attorney fees and directed that the payment to Foundation under the5

Settlement Agreement be offset by $2,000 in order t o pay this amount for such fees to Respondent.

The trial court entered its "FINAL JUDGMENT" on Mar ch 12th. The judgment stated, inter alia , that "without presentation of any evidence, all p arties agreed [Respondent] would file itemized billing records un der seal for the Court's in camera review. [Respondent] also requested attorney fees for bringing the [enforcement motion] and [Foundation] objected." The judgment made orde rs consistent with the March 4th order, including reference to the finding that the preparation, filing, and argument of the enforcement motion along with the preparation of a "proposed order would not have been necessary but for [Foundation's] refusal to sign th e settlement documents and [Respondent] should receive additional attorney fee s in the amount of Two Thousand Dollars ($2,000.00) as a reasonable fee." Foundation timely filed a "MOTION FOR NEW TRIAL AND MOTION FOR RECONSIDERATION, OR, IN THE ALTERNATIVE, MOTION TO AMEND THE JUDGMENT AND SUGGESTIONS IN SUPPORT" ("new trial mo tion"). Foundation asserted that: Respondent "presented no evidence" concerning additional attorney fees; had such evidence been presented, Foundation "would have presented evidence in opposition and . . . preserved objections"; it was appropriate for Foundation to inquire into the reasonableness of Respondent's original at torney fees; and the trial court abused its discretion in awarding the additional attorney fees. During argument on the new trial motion, Foundation's counsel suggested that Respond ent had not requested additional attorney fees at the February 13th hearing and that "[i]f she had requested attorney fees, we would have asked for a hearing and presented evi dence that the documents, number6

one, were not presented -- were not properly prepar ed." Foundation counsel concluded her argument by stating: We don't have any problem with the judgment except for the part where it says that there was evidence presented on the addit ional attorney fees of $2,000 and that we objected. We didn't object beca use there was no request made to the Court. And we would respectful ly ask the Court to omit that in the judgment or, at least, set a heari ng so we can say our piece.

The trial court summarized its recollection of the "last hearing that led to this." That summary included the following: I can tell you without question that I heard [Respo ndent counsel] bring up the issue that she had had to bring this action and would request fees for that. I don't remember an actual amount being sugg ested. I do remember [Respondent counsel] specifically saying that there had been additional costs incurred and that they would seek that. And I believe it's also set forth -- I'd have to pull the motion, but I believe it's requested in the motion. So I believe it's been pled, I believe it was requested.

The trial court also recalled: [I]t was agreed to and this matter was taken up wit h no record, no other evidence presented by agreement of the parties. Th e issue of additional attorney's fees was submitted as being requested by [Respondent counsel]. I don't know why anyone or no one else heard it. I can tell you unequivocally I heard it. None of these recollections are refuted by the reco rd on appeal. The trial court also observed that Respondent counsel's "documents ha[d] proposed $6,000" for additional attorney fees. The trial court noted its position as an expert on attorney fees, an awareness of what it believed local attorneys would have charged, and that it had reviewed "the actual documents prepared and submitt ed . . . as well as holding the hearings" so as to "assess a value of" the services rendered concerning the enforcement motion at $2,000. The trial court denied the new trial motion, and t his appeal timely followed.7 Applicable Principles of Review and Governing Law "The general rule is that in reviewing a court-tri ed case, we will affirm the judgment unless it is against the weight of the evi dence, there is no substantial evidence to support it, or the trial court has erroneously a pplied or declared the law." Muilenburg, Inc. v. Cherokee Rose Design & Build, L.L.C. , 250 S.W.3d 848, 851 (Mo. App. S.D. 2008). "In a judicial proceeding involving the adm inistration of a trust, the court, as justice and equity may require, may award costs and expenses, including reasonable attorney's fees, to any party, to be paid by anothe r party or from the trust that is the subject of the controversy." Section 456.10-1004.

Where the legislature statutorily authorizes an awa rd of attorney's fees in the discretion of the trial court as in thi s case, the decision to grant or deny attorney's fees is reviewable for an abuse of discretion. In re Gene Wild Revocable Trust , 299 S.W.3d [767,] 782 [(Mo. App. S.D. 2009)]. The trial court abuses its discretion in awarding a ttorney's fees if the award is either arbitrarily arrived at or so unreas onable as to indicate indifference and lack of proper judicial considerat ion. Id. (internal quotes and citation omitted). "An award of attorney's fee s is presumed to be correct, with the burden on the complaining party t o prove otherwise." Id. (internal quotes and citation omitted). When revie wing a challenge to an attorney's fees award, the appellate court gives de ference to the discretion of the trial judge who, by virtue of his or her off ice and experience, is considered an expert in determining the proper amou nt of compensation for legal services. O'Riley v. U.S. Bank, N.A. , 412 S.W.3d 400, 418-19 (Mo. App. W.D. 2013). Analysis Foundation's point contends the trial court erred in awarding Respondent the additional attorney fees, but it does not identify the nature of the error requiring reversal. The point alleges that the award of the additional attorney fees resulted from Foundation's "attempt to inquire into the reasonableness of" Res pondent's original attorney fees and such reasonableness "is an implied term of the medi ated settlement." The point does not8

contend that the amount of the additional attorney fees is unreasonable, and in its argument supporting the point, Foundation "abandons its inquiry into the reasonableness of the $13,500 attorney's fee claim[.]" Foundation's supporting argument maintains that "[t ]he award of $2,000 for [additional] attorney's fees had no basis in law as [Foundation] properly policed the bargain when it inquired into the reasonableness of [Respondent's attorney] fees" and that Foundation "merely seeks not to be penalized for ha ving inquired into [the] reasonableness" of Respondent's original attorney f ees. 5 But section 456.10-1004 explicitly provides a legal basis for a trial court to award attorney fees in any case involving the administration of a trust. O'Riley , 412 S.W.3d at 418. We therefore interpret Foundation's claim on appeal to be that t he trial court abused its discretion in ordering Foundation to pay the additional attorney fees because Foundation was entitled to question the reasonableness of Respondent's orig inal attorney fees under the parties' mediated agreement. Foundation argues that "reasonableness is an impli ed term in every contract for attorney's fees[,]" quoting State ex rel. Chase Resorts, Inc. v. Campbell , 913 S.W.2d 832, 835 (Mo. App. E.D. 1995). The contract in tha t case was an insurance policy that provided for the reimbursement of expenses, includi ng legal fees, incurred in defending a

claim. Id. at 834. It does not appear that the precise amoun t of legal fees was specified

in that contract. Id. The court found that while the policy did not "ex pressly limit [the insured's] reimbursement to fees reasonably incurre d"; it also found that "an attorney, as a

5 Foundation also argues that Respondent counsel's i nvoices were submitted to the trial court under sea l so that it did not see them and that these documents w ere not actually admitted into evidence, but such i ssues are not preserved for review as they were not raise d in the point relied on. Hollida v. Hollida , 131 S.W.3d 911, 916 n.6 (Mo. App. S.D. 2004). And, as noted a bove, Foundation expressly abandons its inquiry int o the reasonableness of Respondent counsel's original attorney fees.9

fiduciary, cannot bind his client to pay a greater compensation for his services than the attorney would have the right to demand if no contr act had been made." Id. at 835. As a result, the insurance company could inquire into th e reasonableness of attorney fees

billed to the insured. Id. However, the opinion also noted that "[t]he trial court, as an expert on attorney's fees, may award reasonable amo unts as a matter of law." Id.

This case is similar to Chase Resorts in that it involves the agreement of a third party (Foundation) that allows the attorney fees of another party (Respondent) to be paid

in a manner that affects Foundation's own interests as a trust beneficiary. But unlike

Chase Resorts , see id. at 834, the Memorandum expressed an agreement by F oundation that Respondent counsel would be paid a precise fig ure for attorney fees, and it did not express any limitation or qualification on the agre ement to pay that exact figure. In any event, we need not decide whether these dist inctions mean that Foundation was prohibited by the terms of the Memorandum from challenging the reasonableness of the original attorney fees such that it would have been proper to "penalize" Foundation by awarding the additional attorney fees. The trial c ourt's discretion in awarding attorney fees "[i]n a judicial proceeding involving the admi nistration of a trust" under section 456.10-1004 is not limited to instances where a "pe nalty" is warranted. "Instead, it leaves

the award to the trial court's determination of wha t 'equity and justice' require." Rouner

v. Wise , 446 S.W.3d 242, 260 (Mo. banc 2014). "Section 45 6.10-1004 is a discretionary

statute." Lehmann v. Bank of America, N.A. , 427 S.W.3d 315, 324 (Mo. App. E.D. 2014); see also Gene Wild Revocable Trust , 299 S.W.3d at 784 (the trial court's finding that the payment of the attorney fees should be tak en out of the trust before its division was "the province of the probate court within its s ound discretion").10

As a result, we cannot find that the trial court's award of the additional attorney fees was "either arbitrarily arrived at or so unrea sonable as to indicate indifference and lack of proper judicial consideration." Id. at 782 (quotations and internal citations omitted). Foundation's point is denied, and the ju dgment of the trial court is affirmed.

DON E. BURRELL, J. - OPINION AUTHOR NANCY STEFFEN RAHMEYER, J. - CONCURS GARY W. LYNCH, J. - CONCURS