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Peppers Cemetery Found. v. McKinney

Court of Appeals of Missouri, Southern District, Second Division

February 4, 2015

PEPPERS CEMETERY FOUNDATION, Plaintiff-Appellant, and OPAL MASSEY, Plaintiff-Respondent,
v.
DANNY W. MCKINNEY, TRUSTEE 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.

ANGELA C. RIESCHEL, Buffalo, MO, for Appellant.

HEATHER L. MCBRIDE, Springfield, MO, for Respondent Massey.

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

OPINION

DON E. BURRELL, J.

Page 466

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 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 456.10-1004[3] 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.

Page 467

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 $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. ...

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