Court of Appeals of Missouri, Eastern District, First Division
from the Circuit Court of St. Charles County Honorable Jon A.
S. ODENWALD, JUDGE.
Selleck ("Selleck") appeals from the judgment of
the trial court, entered after a jury awarded him $10, 000 on
his claim against Keith M. Evans Insurance, Inc. ("Evans
Insurance") for violating the Missouri Merchandising
Practices Act ("MMPA"). As authorized by the MMPA,
the trial court then granted Selleck his reasonable
attorneys' fees. In calculating Selleck's reasonable
attorneys' fees, the trial court expressly considered the
contingent-fee agreement executed by Selleck and his
attorneys before awarding Selleck $3, 333.33. In his sole
point on appeal, Selleck asserts that the trial court erred
in relying on the contingent-fee arrangement to determine his
reasonable attorneys' fees. While the presence of a
pre-existing contingent-fee agreement may aid a trial court
in determining the reasonableness of a statutory award of
attorneys' fees, a contingent-fee contract does not
impose an automatic ceiling on an award of attorneys'
judgment of the trial court appears to treat the
contingent-fee agreement as a mandatory cap on the amount of
attorneys' fees that may be awarded under the MMPA
instead of utilizing the contingent fee-agreement as one
factor to determine the reasonableness of an attorneys'
fee award. Accordingly, we reverse the judgment of the trial
court and remand with instructions to determine Selleck's
reasonable attorneys' fees for his claim under the MMPA.
arid Procedural History
the termination of his employment, Selleck sued his former
employer, Evans Insurance. In four separate counts, Selleck
alleged claims for (1) wrongful discharge, (2) unpaid
commissions under Section 407.913 of the MMPA, (3) unjust
enrichment, and (4) breach of an oral contract. In Count I,
Selleck averred that Evans Insurance wrongfully discharged
him because he reported unlawful activity to his supervisors.
Selleck further contended that Evans Insurance's
purported reason for his termination-Selleck's negligent
job performance-was "a pretext to mask [Evans
Insurance's] retaliatory conduct." Claiming
extensive damages, Selleck sought recovery under his
wrongful-discharge claim for unpaid rent, unpaid child
support, fees incurred in a modification suit with his former
wife, emotional distress, lost wages, and punitive damages.
In Count II, Selleck maintained that Evans Insurance failed
to pay Selleck his earned commissions, estimated then at
around $3, 000, in violation of the MMPA. In Counts III and
IV, Selleck alleged unjust enrichment and breach of an oral
contract, demanding damages for unpaid wages, vacation pay,
unpaid commissions, and punitive damages.
the onset, the ensuing litigation was contentious and
combative. The parties' attorneys immediately and
intensely disputed both the scope and the procedure of
discovery. Unable to amicably conduct discovery, the
parties' attorneys required the trial court to intervene
in numerous discovery disputes. Selleck's attorney
unsuccessfully and repeatedly sought sanctions against
opposing counsel for purported discovery violations. Both
parties' attorneys levied allegations that the opposing
counsel engaged in professional misconduct and committed
ethical violations. The antagonistic litigation resulted in
an unsuccessful attempt by Evans Insurance to remove
Selleck's attorney from the proceedings.
bitterly contested suit proceeded to a jury trial. At trial,
Selleck testified regarding his past work history, his job
performance with Evans Insurance, his post-termination
employment, and the commission-payment system implemented by
Evans Insurance. Selleck testified that he suffered extensive
damages as a result of the wrongful discharge and asked for
an award of over $160, 000. Selleck explained at length his
financial struggles following his termination. Selleck also
requested the jury to award him $11, 709 in unpaid
commissions, statutory penalties, and accrued interest.
Regarding his attorneys' fees, Selleck testified that he
had hired his attorneys on a contingent-fee arrangement.
After presenting evidence, Selleck voluntarily withdrew his
claims for unjust enrichment and breach of an oral contract
and submitted his claims for wrongful discharge and for
unpaid commissions to the jury. The jury found against
Selleck on his wrongful-discharge claim and found in favor of
Selleck on his unpaid-commissions claim, awarding Selleck
to Section 407.913, Selleck filed a post-trial motion for his
reasonable attorneys' fees. Selleck requested a total fee
award of $221, 292. Selleck represented that this amount
reflected the 788 hours billed on the case by attorneys who
charged $280 and $450 an -hour, respectively. Evans Insurance
objected to many of the entries on the legal bill, stating
that many of the charges did not relate to Selleck's
modest MMPA claim; instead, the charges pertained to his
unsuccessful claims for wrongful discharge, unjust
enrichment, and breach of an oral contract.
trial court ruled that Selleck was entitled to his reasonable
attorneys' fees. According to the trial court, the amount
of attorneys' fees sought by Selleck, however, was
"neither reasonable nor [was] it supported by the
evidence based upon extremely excessive hours requested for
the type of case involved[.]" The trial court continued:
"[T]he fees requested by [Selleck] were extremely
excessive for work on a case that was brought over the
alleged non-payment of $4, 200.00 in commissions. ... [B]y
far, most of the fees in the case arose because of discovery
and trial preparation for [Selleck's] unsuccessful
claim" for wrongful discharge.
trial court found that Selleck presented credible evidence
that he had entered into a contingent-fee arrangement with
his attorneys. The trial court determined that Selleck
"had paid no attorney's fees in this case" and
that Selleck had not "incurred" any attorneys'
fees until the $10, 000 jury award in his favor. Considering
contingency agreements, the trial court ruled that 33 1/3%
was a reasonable and standard contingent-fee percentage in
the local legal community. Regarding the merits of the suit,
the trial court explained that this was "a simple
commissions case for a rather moderate amount" and that
the amount Selleck requested was "extremely
excessive" for an unpaid-commissions case. The trial
court acknowledged that a high-degree of skill was required
to conduct a jury trial, that unpaid commissions were an
important subject matter, and that the case was vigorously
litigated. However, the trial court also found that
Selleck's attorneys experienced limited success,
prevailing on only one of Selleck's four claims. The
trial court emphasized the dissimilarity of Selleck's
claims, which required the trial court to separate the MMPA
claim from the unsuccessful wrongful-discharge claim.
Recognizing that the jury awarded Seileck $10, 000 on his
MMPA claim, the trial court granted Selleck $3, 333.33 in
attorneys' fees and $2, 789.45 in costs.
the trial court then computed the reasonable amount of
attorneys' fees had Selleck not entered into a
contingent-fee agreement and had employed his attorneys at an
hourly rate. Specifically, the trial court stated that, had
the attorneys' fees been calculated based on an hourly
rate, "the Court would have found a fee based upon 25
hours for pleading preparation, discovery, and arguments on
motions, 20 hours for final trial preparation, and 40 hours
for the actual jury trial would be reasonable." The
trial court noted that 85 hours at the hourly rate of $280
would amount to $23, 800, but repeated its decision not to
award attorneys' fees based upon an hourly basis.
moved for reconsideration of his attorneys' fees award.
In his motion, Selleck asserted that Missouri law did not
support reducing an attorneys' fee award based upon a
contingent-fee agreement. Further, Selleck argued that the
trial court erred in its alternative finding that, of the 788