United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
A. ROSS UNITED STATES DISTRICT JUDGE
February 26, 2019, this Court entered its Judgment and Order
approving the parties' confidential wrongful death
settlement and set the matter for hearing on the issues of
apportionment of the settlement funds and the reasonableness
of attorneys' fees. (Doc. No. 41). Following a hearing on
April 3, 2019, the Court found the parties' agreed upon
apportionment of the settlement proceeds fair and reasonable
and approved the apportionment. (Doc. No. 52). The Court
awarded Plaintiff Versay Kennell his attorney's fees in
accordance with their fee arrangement, but found, based on
the evidence presented, no binding fee agreement between
Plaintiff Tameka Prince and her former attorney Nuru
Witherspoon of The Witherspoon Law Group. (Id.).
As a result, the Court allowed Mr. Witherspoon to submit a
post-hearing brief and any evidence in support of an award of
attorney's fees on a quantum meruit basis.
matter is now before the Court on the Motion for Attorney
Fees filed by The Witherspoon Law Group seeking $42, 000 in
attorney's fees and $11, 000 in costs and expenses, for a
total award of $53, 000. (Doc. No. 56). According to Mr.
Witherspoon, the fee requested represents “at least 120
hours of time” billed at an hourly rate of $350 and is
“less than half of what is customarily charged.”
(Affidavit is Support of Motion for Attorney's Fee, Doc.
No. 56-1 at ¶¶ 7, 10, 12). As for costs and
expenses, Mr. Witherspoon has waived all costs other than a
$3, 000 non-refundable retainer paid to an accident
reconstruction firm to investigate the fatal crash and $8,
000 that Ms. Prince “agreed [ ] she owed The
Witherspoon Law Group.” (Doc. No. 56 at ¶¶
11-12). Ms. Prince opposes the motion. (Doc. No. 59).
regard to attorney fees, V.A.M.S. § 537.095.4(2)
provides that a court “shall order the claimant . . .
[t]o deduct and pay the expenses of recovery and collection
of the judgment and the attorneys' fees as
contracted.” Thus, when considering a request for
attorneys' fees, the Court is tasked only with
determining whether a fee agreement exists, and if so,
ordering the claimant to pay attorney fees as contracted.
See Lewis v. Blue Springs School Dist., No.
4:17-CV-00538-NKL, 2018 WL 1126751, at *2 (W.D. Mo. Mar. 1,
2018); Kavanaugh v. Mid-Century Ins. Co., 937 S.W.2d
243, 247 (Mo.Ct.App. 1996). The Court has found there was no
binding fee agreement between Ms. Prince and Mr. Witherspoon.
Moreover, Ms. Prince terminated Mr. Witherspoon's
services prior to the final resolution of this case. In the
absence of a contract, attorney's fees are awarded on a
quantum meruit basis - which applies when a contingent fee
contract is terminated before settlement as well as where
there is no contract. See Collins v. Hertenstein,
181 S.W.3d 204, 214 (Mo.Ct.App. 2005) (citing Risjord v.
Lewis, 987 S.W.2d 403, 405 (Mo.Ct.App. 1999)).
action sounding in quantum meruit is based upon a
person's implied promise of reasonable and just
compensation in return for the performance of valuable
services, performed at that person's behest or with his
approval.” McCoy v. The Hershewe Law Firm,
P.C., 366 S.W.3d 586, 597 (Mo.Ct.App. 2012) (quoting
Turpin v. Anderson, 957 S.W.2d 421, 427 (Mo.Ct.App.
1997)). The party asserting the right to attorneys' fees
in quantum meruit bears the burden of proving the reasonable
value of services performed. Id. The failure to
prove reasonable value is fatal to a quantum meruit claim.
Id. (citing Reid v. Reid, 950 S.W.2d 289
(Mo.Ct.App. 1997) (vacating an award of $65, 000).
determine what constitutes a reasonable attorney's fee
value in quantum meruit, consideration must be given to:
“(1) the time, nature, character and amount of services
rendered; (2) the nature and importance of the litigation;
(3) the degree of responsibility imposed on or incurred by
the attorney; (4) the amount of property or money involved;
(5) the degree of professional ability, skill and experience
that was called for and used; and (6) the result that was
achieved.” Id. (quoting Turpin, 957
S.W.2d at 427).
Mr. Witherspoon's quantum meruit claim lacks documentary
support, there is support in the record for the Court to find
that he and The Witherspoon Law Group provided Ms. Prince
with valuable services over a period of approximately 15
months and reached an understanding to settle the case, which
Ms. Prince ultimately agreed with. After hearing evidence on
attorneys' fees in this case, and applying the foregoing
factors to that evidence, the Court finds that an
attorney's fee of $42, 000 is fair and reasonable for the
services Mr. Witherspoon and his law firm provided to Ms.
Prince. The Court will award Mr. Witherspoon his costs
incurred in retaining the accident reconstruction firm in the
amount of $3, 000, but disallow the $8, 000 purportedly owed
The Witherspoon Law Group by Ms. Prince. Mr. Witherspoon has
provided no evidentiary support for the Court to base such an
Court is also in receipt of the consolidated billing
statement of Ms. Prince's new counsel reflecting her fees
of $13, 605.60. The Court previously found the request of
Plaintiff's counsel for fees incurred as of April 3, 2019
in the amount of $9, 521.85 (42.05 hours x $225) was fair and
reasonable and agreed to by Ms. Prince. (Doc. No. 52). From
April 3, 2019 to May 9, 2019, counsel billed $4, 083.75
(18.15 hours x $225). (Doc. No. 62-1). The Court again finds
that these fees are fair and reasonable under the
circumstances of this case and agreed to by Ms. Prince.
the Court will direct that the awards of attorneys' fees
to Mr. Witherspoon and Ms. McKinstry be distributed from Ms.
Prince's settlement proceeds, with the remaining balance
of those proceeds distributed to Ms. Prince.
IT IS HEREBY ORDERED that the Motion for
Attorney Fees filed by The Witherspoon Law Group  is
GRANTED in part. The Witherspoon Law Group
is awarded $42, 000.00 in attorneys' fees and $3, 000.00
in costs, for a total award of $45,
IS FURTHER ORDERED that counsel Natalia McKinstry is
awarded her attorney's fees in the amount of
IS FURTHER ORDERED that no later than
Friday, May 31, 2019, Ms. McKinstry, on her own
behalf and on behalf of Ms. Prince, shall submit a proposed
order for disbursement of the settlement proceeds in
accordance with the rulings herein and pursuant to E.D. Mo.
L. R. 13.04(C)(3).
IS FINALLY ORDERED that no later than
Friday, May 31, 2019, Mr. Witherspoon, on
behalf of The Witherspoon Law Group, shall likewise submit a
proposed order for disbursement of the settlement proceeds in