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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 Judge 

AFFIRMED

 Plaintiff Peppers Cemetery Foundation ("Foundation") appeals the portion of a 

judgment of the probate division of the circuit court ("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 connection with her motion to enforce a 

settlement agreement the parties had reached in their lawsuit over the proper 
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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 all 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 awarding the additional attorney fees 

"as a result of [Foundation's] attempt to inquire into 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 456.10-10043 to award reasonable attorney fees, and Foundation has failed 

to prove that the trial court abused that discretion, we affirm. 

Facts and Procedural Background 

 In February 2012, Respondent and Foundation, as beneficiaries of the trust, filed 

their joint petition, which asserted nine counts for relief. In March 2012, the parties 

stipulated that they would complete mediation within 90 days. Foundation agrees in its 

brief (citing the enforcement motion) that mediation was held, and "the parties set out the 

essential terms of an agreement for settlement of the case" in the Memorandum. 

The Memorandum, dated May 14, 2012, provided for the 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 deducted $1,500.00 

attorney fees to Angela C. Rieschel [("Foundation counsel")] and 

 

1

 We will refer to Trinity Evangelical Lutheran Church of Lebanon, Missouri as "the Church". Foundation 

and Respondent are the only parties that have filed a brief in this appeal. 

2

 Counsel for the Church subsequently entered the case in December 2013. 

3

 RSMo Cum. Supp. 2012. 
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$13,500.00 attorney fees to Heather McBride [("Respondent counsel")]. 

After those amounts are deducted, the balances of proceeds are to be 

divided one fourth each to the [Church], [Respondent], [Foundation,] and 

[Mr.] McKinney. [Mr.] McKinney is responsible for paying David 

Wilhite's attorney fees [Mr. Wilhite had represented the McKinneys 

individually and Mr. McKinney as successor trustee]. 

 This agreement resolves all issues in the above styled case. 

 In its statement of facts, Foundation asserts4 that on October 17, 2012, "the parties 

reached agreement that a circulated settlement agreement contained correct terms." 

Foundation subsequently notified Respondent that "it would not sign the settlement 

agreement" and "[s]tarting on October 24, 2012, [Foundation] sought an itemized 

statement of [Respondent's] attorney fee invoices for [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 enforcement motion. The enforcement 

motion also sought additional attorney fees against Foundation in favor of Respondent for 

services performed in "the researching, drafting, filing, and argument of" the enforcement 

motion, and it stated that the attorney fees had "exceed[ed] the amount set forth in the 

Memorandum[.]" Respondent argued that the enforcement motion "would not have been 

necessary but for [Foundation's] refusal to sign documents evidencing the agreement it 

and the other parties to this case made following mediation in May 2012." The 

McKinneys also joined in the enforcement motion. 

 

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 Foundation cites assertions in Respondent's enforcement motion as the record supporting the statements 

of fact addressed in this paragraph. 
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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 enforcement motion were "correct." The 

order noted that "Foundation argued it should be permitted to review [Respondent's] 

attorney fees invoices for reasonableness of the fees." 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." Respondent counsel was ordered to submit 

"her firm invoices for work performed and costs incurred 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 of the same shall be final and binding 

on all parties." 

On March 4th, the trial court entered an order sustaining the enforcement motion 

and directing the parties "to execute the [Settlement 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 the receipt of "itemized copies of all 

attorney fees and costs incurred by [Respondent] from 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 the 
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Settlement Agreement be offset by $2,000 in order to pay this amount for such fees to 

Respondent. 

The trial court entered its "FINAL JUDGMENT" on March 12th. The judgment 

stated, inter alia, that "without presentation of any evidence, all parties agreed 

[Respondent] would file itemized billing records under seal for the Court's in camera 

review. [Respondent] also requested attorney fees for bringing the [enforcement motion] 

and [Foundation] objected." The judgment made orders 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 the settlement documents and 

[Respondent] should receive additional attorney fees 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 motion"). 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 attorney 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 Respondent 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 evidence that the documents, number 
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one, were not presented -- were not properly prepared." 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 additional attorney fees of 

$2,000 and that we objected. We didn't object because there was no 

request made to the Court. And we would respectfully ask the Court to 

omit that in the judgment or, at least, set a hearing 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 [Respondent 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 suggested. 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 with no record, no other 

evidence presented by agreement of the parties. The 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 record 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 submitted . . . 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 this appeal timely followed. 
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Applicable Principles of Review and Governing Law 

 "The general rule is that in reviewing a court-tried case, we will affirm the 

judgment unless it is against the weight of the evidence, there is no substantial evidence 

to support it, or the trial court has erroneously applied 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 administration 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 another party or from the trust that is the 

subject of the controversy." Section 456.10-1004. 

Where the legislature statutorily authorizes an award of attorney's 

fees in the discretion of the trial court as in this 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 attorney's fees if the 

award is either arbitrarily arrived at or so unreasonable as to indicate 

indifference and lack of proper judicial consideration. Id. (internal quotes 

and citation omitted). "An award of attorney's fees is presumed to be 

correct, with the burden on the complaining party to prove otherwise." Id.

(internal quotes and citation omitted). When reviewing a challenge to an 

attorney's fees award, the appellate court gives deference to the discretion 

of the trial judge who, by virtue of his or her office and experience, is 

considered an expert in determining the proper amount 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" Respondent's original attorney fees and 

such reasonableness "is an implied term of the mediated settlement." The point does not 
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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 having inquired into [the] 

reasonableness" of Respondent's original attorney fees.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 the 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 original attorney fees under the parties' 

mediated agreement. 

 Foundation argues that "reasonableness is an implied 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 that case was an insurance policy that 

provided for the reimbursement of expenses, including legal fees, incurred in defending a 

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

in that contract. Id. The court found that while the policy did not "expressly limit [the 

insured's] reimbursement to fees reasonably incurred"; it also found that "an attorney, as a 

 

5

 Foundation also argues that Respondent counsel's invoices were submitted to the trial court under seal so 

that it did not see them and that these documents were not actually admitted into evidence, but such issues 

are not preserved for review as they were not raised in the point relied on. Hollida v. Hollida, 131 S.W.3d 

911, 916 n.6 (Mo. App. S.D. 2004). And, as noted above, Foundation expressly abandons its inquiry into 

the reasonableness of Respondent counsel's original attorney fees. 
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fiduciary, cannot bind his client to pay a greater compensation for his services than the 

attorney would have the right to demand if no contract had been made." Id. at 835. As a 

result, the insurance company could inquire into the 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 amounts 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 Foundation 

that Respondent counsel would be paid a precise figure for attorney fees, and it did not 

express any limitation or qualification on the agreement to pay that exact figure. 

In any event, we need not decide whether these distinctions 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 court's discretion in awarding attorney 

fees "[i]n a judicial proceeding involving the administration of a trust" under section 

456.10-1004 is not limited to instances where a "penalty" is warranted. "Instead, it leaves 

the award to the trial court's determination of what 'equity and justice' require." Rouner 

v. Wise, 446 S.W.3d 242, 260 (Mo. banc 2014). "Section 456.10-1004 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 taken out of the trust before its division 

was "the province of the probate court within its sound discretion"). 
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 As a result, we cannot find that the trial court's award of the additional attorney 

fees was "either arbitrarily arrived at or so unreasonable 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 judgment of the trial court is affirmed. 

DON E. BURRELL, J. - OPINION AUTHOR 

NANCY STEFFEN RAHMEYER, J. - CONCURS 

GARY W. LYNCH, J. - CONCURS