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Hoeper v. Liley

Court of Appeals of Missouri, Western District, Second Division

August 29, 2017

TERRY HOEPER AND DIXIE HOEPER, Respondents,
v.
JIM LILEY, ET AL., Appellants.

         APPEAL FROM THE CIRCUIT COURT OF BATES COUNTY, MISSOURI THE HONORABLE JAMES K. JOURNEY, JUDGE

          Before: Edward R. Ardini, Jr., Presiding Judge, Karen King Mitchell, Judge and Anthony Rex Gabbert, Judge

          EDWARD R. ARDINI, JR., JUDGE

         Jim Liley and Vicki Liley appeal the judgment of the Circuit Court of Bates County awarding $190, 509.96 to Terry Hoeper and Dixie Hoeper out of the proceeds from the sale of land in a partition action. The award includes the Hoepers' proportional share of the proceeds relating to their ownership in the land as well as reimbursement for improvements and taxes paid on the land, awards relating to two separate claims for unjust enrichment, and attorney's fees and costs. Finding no error, we affirm.

         Factual and Procedural Background

         This case concerns the partition of two parcels of land, as well as claims for unjust enrichment relating to two unrelated parcels of land, all arising out of a dispute among family members.[1] The underlying suit was brought by Terry Hoeper and his wife Dixie Hoeper (collectively "the Hoepers"). Terry Hoeper is the brother of Vicki Liley who is married to Jim Liley (collectively "the Lileys"), the defendants in the underlying suit. Terry Hoeper and Vicki Liley's parents were Doris Hoeper and Richard Hoeper, both now deceased. Richard Hoeper died intestate in 1997, Doris Hoeper died intestate in 2000. Sam Hoeper is Richard Hoeper's brother and the uncle of Terry and Vicki.[2]

         At one point, the collective Hoeper/Liley family owned several parcels of land. The Strip-Pit is a parcel of real property in Bates County consisting of 160 acres originally acquired by Richard and Sam in a lawsuit against a local mining company. The Bottom-Land is a parcel of real property in Bates County consisting of 80 acres that was originally purchased by Richard Hoeper. Adjacent to the Bottom-Land is an unnamed 94 acre parcel that was originally acquired by the parents of Richard and Sam. The Nevada House is real property with a residence built upon it located in neighboring Vernon County that was originally purchased by Sam and resided in by Doris and Richard until their death. The Home Farm is a piece of property in Bates County first owned by Richard and Sam's parents. Finally, the Tipple Parcel is a piece of real property also located in Bates County.

         Prior generations of Hoepers had left the ownership of the various properties in disarray. While the family often spoke of inheritances, in reality many of the properties had been transferred by gift with names being placed on or added to the different parcels. In addition, many of the prior generations had died intestate further complicating matters. As a result, several of the parcels had multiple family members' names on their titles. Richard's 50% interest in the Strip-Pit and 100% interest in the Bottom-Land had been transferred to the Hoepers and the Lileys as tenants in common by warranty deed so that upon his death the Hoepers and the Lileys each owned a 25% interest in the Strip-Pit and a 50% interest in the Bottom-Land with Sam owning the remaining 50% of the Strip-Pit. At the same time, both the Lileys and the Hoepers inherited their father's interest in the 94 acres of unnamed land adjacent to the Bottom-Land that was also owned in part by Sam. In addition, though the Hoepers had purchased Richard and Doris's interest in the Home Farm in the 1970's, Sam retained a 1/12 share in the property. Finally, at some point, Richard, Doris, and Vicki had all been added to the title to the Nevada House alongside Sam so that after Richard and Doris passed away the Nevada House was owned by both Sam and Vicki, apparently as tenants in common. Only the Tipple Parcel appears to have been left clean, title having been passed some years earlier to the Lileys.

         Prior to his death, Richard Hoeper had commenced a lawsuit against his brother Sam to clear up the convoluted ownership interests of the various properties. While the parties reached a tentative settlement in that suit, Sam failed to complete the agreement or remove his name from the properties as needed before Richard's death. As a result, the Hoepers went to court to pursue the claims against Sam.[3] Terry asked Vicki to join in this litigation. Although she told Terry that she was "on his side, " she refused to financially contribute toward the costs or legal fees. After spending approximately $53, 000 in legal fees, the Hoepers reached a settlement with Sam. Consistent with the resolution, Sam transferred his 50% interest in the Strip-Pit to the Hoepers, released his claim on the Home Farm in favor of the Hoepers, and transferred by quitclaim deed his interest in the Nevada Home to Vicki. In exchange, the Hoepers and the Lileys released their respective interests in the unnamed 94 acre parcel. Therefore, at the time of the filing of this action, the parties' interests in the properties were divided as thus: the Strip-Pit Parcel was owned 75% by the Hoepers, 25% by the Lileys with the subsurface mineral rights being held by Heritage Coal LLC;[4] the Bottom-Land was owned 50% by the Hoepers and 50% by the Lileys; the Nevada House was owned solely by the Lileys; the Home Farm was owned in its entirety by the Hoepers; and the 94 acres of land in an unnamed parcel adjacent to the Bottom-Land was owned by Sam.

         Sometime in 2007 or 2008, the Hoepers decided to end the joint ownership of the Strip-Pit and Bottom-Land properties with the Lileys, which the Lileys admitted to knowing of by at least 2008. Despite this, the Lileys made no attempt to discuss the matter with the Hoepers or to resolve the issue by means other than partition. Undeterred, the Hoepers sent the Lileys a proposal for how to resolve the issue of joint ownership that included a proposed method of appraising the two parcels and giving the Lileys the first right to purchase one or both of the parcels. Vicki responded by quitting her job at a company owned by the Hoepers and telling Terry, "I guess the next time I see you will be in court."

         In November of 2011, the Hoepers initiated the present action seeking partition and/or sale of the Strip-Pit and Bottom-Land parcels. The Hoepers' petition included a request that they be reimbursed from the proceeds of the sale for expenses incurred on both parcels relating to maintenance done, improvements made, and taxes paid. In addition, the Hoepers included a claim for unjust enrichment against the Lileys related to the Hoepers prior work on resolving the issue of ownership of the Nevada House and a separate claim for unjust enrichment relating to taxes paid and improvements made to the Tipple Parcel.[5] Finally, the Hoepers also filed a request for attorney's fees pursuant to section 528.530 and Rule 96.30.[6]

         During the course of the partition action, a licensed real-estate agent contacted the Hoepers regarding offers to purchase the Bottom-Land parcel for $152, 000 and $132, 000 less commission. Terry Hoeper also found a buyer willing to purchase the Bottom-Land parcel for $200, 000 in a sale that would not require the payment of a commission. All of these offers were communicated to the Lileys who, on each occasion, failed to respond. With the efforts to avoid a partition having failed, the Hoepers moved to proceed to a sheriff's sale without incurring the expense of commissioners.[7] The Lileys however insisted on having commissioners appointed, although their counsel acknowledged the unlikelihood of the land being deemed divisible under Chapter 528. The Hoepers undertook to find qualified commissioners and helped with their visit to the properties, both tasks the Lileys refused to assist with. The commissioners ultimately determined that the land could not be divided, which the Lileys did not challenge. The trial court ordered a sheriff's sale that was held on March 23, 2013. The Bottom-Land was sold for $120, 000 to the same party who had previously offered $200, 000 for the property. The Strip-Pit was purchased by the Hoepers for $350, 000.[8]

         A trial was scheduled for November 26, 2013, to resolve the remaining claims and determine the distribution of the proceeds. However, the Lileys and their counsel failed to appear for trial that day. The Hoepers, who did appear and who were ready for trial, filed a supplemental application for attorney's fees relating to work performed in preparation of that trial date. The trial was ultimately held on December 20, 2013. Following the trial, the court awarded the Hoepers $60, 000.00 for their 50% ownership in the Bottom-Land as well as $985.74 for the taxes they paid on the Bottom-Land and Strip-Pit parcels and $26, 973.63 for improvements made to the BottomLand and Strip-Pit parcels from the proceeds of the partition sale. The trial court also found in favor of the Hoepers on their two counts of unjust enrichment and awarded them $20, 000.00 on their claim relating to their work resolving the issue of ownership of the Nevada House and $3, 294.42 on their claim for work done and taxes paid on the Tipple Parcel. Finally, the trial court awarded the Hoepers $74, 185.83 for attorney's fees and costs and returned their $2, 000.00 deposit for costs. The trial court's award of attorney's fees included $24, 830.33 in ordinary fees and costs and $49, 355.50 in extraordinary fees that the trial court awarded based on the Lileys' vexatious conduct during the action. An additional $3, 070.34 in attorney's fees was awarded by supplemental order pertaining to the Hoepers' request related to the November 26 trial date, bringing the total judgment for the Hoepers to $190, 509.96. The Lileys now appeal the trial court's award of $26, 973.63 for improvements to the Bottom-Land and Strip-Pit parcels, the award of $20, 000.00 on the Hoepers' claim for unjust enrichment relating to their work resolving the issue of ownership of the Nevada House, and the initial award of $74, 185.83 in attorney's fees and costs.[9]

         Attorney's Fees

         The Lileys' first point on appeal contends that the trial court's award of $74, 185.83 in attorney's fees to the Hoepers was excessive and constituted error. We review a trial court's award of attorney's fees for an abuse of discretion. Berry v. Volkswagen Group of America, Inc., 397 S.W.3d 425, 430 (Mo. banc 2013). "To demonstrate an abuse of discretion, the complaining party must show the trial court's decision was against the logic of the circumstances and so arbitrary and unreasonable as to shock one's sense of justice." Howard v. City of Kansas City, 332 S.W.3d 772, 792 (Mo. banc 2011) (quoting Russell v. Russell, 210 S.W.3d 191, 199 (Mo. banc 2007)). "The trial court is considered an expert on fees, given its familiarity with all of the issues in the case and with the character of the legal services rendered, " and "may determine attorney fees without the aid of evidence." Soto v. Costco Wholesale Corp., 502 S.W.3d 38, 55 (Mo. App. W.D. 2016) (quoting Walsh v. City of Kansas, 481 S.W.3d 97, 113 (Mo. App. W.D. 2016)). In this case, the $74, 185.83 in attorney's fees and costs awarded by the trial court can be broken down into three distinct amounts: $22, 728.00 in ordinary fees, $49.355.50 in extraordinary fees, and $2, 102.33 in costs. We will review these awards separately.

         Section 528.530 and Rule 96.30 both permit trial courts to award "a reasonable fee to the attorney instituting the action" in a partition proceeding. Turner v. Pence, 514 S.W.3d 98, 109 (Mo. App. W.D. 2017). Courts have recognized that "[b]ecause both parties benefit from the work of the attorney who handles the partition case (i.e. both receive partition sale proceeds), the defendant 'should not be permitted to escape the common burden, and throw upon the plaintiff the whole of it.'" Tadych v. Horner, 336 S.W.3d 174, 180 (Mo. App. W.D. 2011) (quoting Arthaud v. McFerrin, 156 S.W.2d 641, 642 (Mo. 1941)). Therefore, courts permit the attorney responsible for bringing the action to be compensated "out of the common fund realized from the sale of the property." Higgins v. Olson, 991 S.W.2d 216, 219 (Mo. App. E.D. 1999). However, because this compensation is "predicated on the theory that the attorney who instituted the ...


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