Karstens v. Evans

688 S.W.3d 782

Angela M. KARSTENS, Respondent,

v.Kenneth L. EVANS, Appellant.

No. ED 111764

Missouri Court of Appeals, Eastern District, DIVISION FOUR.

Filed; April 16, 2024

Appeal from the Circuit Court of St. Charles County, Honorable Daniel Pelikan, Judge

FOR APPELLANT: Robert Schultz III, Schultz & Associates LLP, 640 Cepi Drive, Suite A, Chesterfield, Missouri 63005-1221.

FOR RESPONDENT: Brandon J. Klar, Klar, Izsak & Stenger, LLC, 1125 Olivette Executive Parkway, Suite 120, St. Louis, Missouri 63132.

Michael S. Wright, Judge

Introduction

Kenneth L. Evans ("EVans") appeals the trial court’s award of ordinary and substantial¹ attorney's fees of $17,669.32 to Angela M. Karstens ("Karstens") in the partition action for the sale of their home. Evans asserts four points on appeal. Points I and II contend the trial court’s award of ordinary attorney’s fees was improper because the work done by Karstens’ attorney did not benefit him. Point III argues the award of substantial attorney’s fees was improper because Evans’ actions throughout the litigation of the partition action did not amount to egregious, vexatious, uncooperative, or unduly litigious behavior. Lastly, Point IV argues the trial court erred in awarding Karstens a total of $38,144.47 from the proceeds of the partition sale because the award included an attorney’s fees award that is unreasonable.

We find Evans’ first three points are dispositive. This Court cannot determine whether the trial court abused its discretion in awarding ordinary attorney’s fees because the trial court combined the award for ordinary and substantial attorney’s fees without specifying the amounts for each award. Additionally, we find the trial court erred in awarding any substantial attorney’s fees because such an award is not supported by the record. Accordingly, we reverse and remand for the trial court to make findings as to the amount of partition-related attorney’s fees that resulted from work benefiting both parties.

Factual and Procedural Background

In 2018, Karstens and Evans were involved in a romantic relationship and jointly owned a home in St. Charles, Missouri (the "Property"). Evans made a down payment of $21,250.43 and the earnest money deposit of $2,950.00 on the Property. The Property’s mortgage was paid from a joint bank account, which was financed by both Karstens and Evans.

Following a "significant relationship strife," the parties separated, Karstens moved out of the Property while Evans remained in the Property. On February 14, 2022, Karstens filed a partition action to divide the interest in the Property. During the litigation of the partition action, Karstens filed a motion for an order of sale and two motions to compel to force Evans’ compliance with discovery. The motion for an order of sale required memorandums to be filed and a court hearing, while the motions to compel were resolved without judicial intervention. Ultimately, Evans consented to the sale of the Property, but only after the court ordered him to consent to the order of sale. The Property received one purchase offer, which the real estate broker believed was fair. Both par- ties agreed to the sale price and the Property sold for $400,000 on August 12, 2022. The sale netted $64,761.02, which was paid into the registry of the trial court.

On May 5, 2023, the trial court entered its judgment. The trial court found Evans was entitled to $24,200.43 of the net proceeds for reimbursement of his down payment and earnest money payment. The trial court also assessed costs of $194.85 against Evans and awarded Karstens attorney’s fees in the amount of $17,669.32 to be paid entirely by Evans. In awarding attorney’s fees, the trial court stated Karstens initiated and facilitated the sale of the Property on behalf of the parties and Evans obstructed the sale of the Property and the progress of the lawsuit. Specifically, the trial court noted that: 1) Karstens was "essentially" kicked out of the Property and the locks were changed without her knowledge; 2) Evans stopped making mortgage payments, but kept accepting Karstens’ checks to pay the mortgage; 3) Evans opposed Karstens’ motion for order of sale, forcing memorandums to be filed and a court hearing, only consenting after ordered to do so by the trial court; 4) the Property was offered for showing on twenty or thirty occasions; 5) the real estate agent opined it was unusual that Evans was always present during showings to prospective buyers; 6) the real estate agent opined Evans did not want to sell the Property; 7) only one purchase offer was received and the real estate agent opined it was a fair offer; 8) Evans refused to remove his personal property from the premises even until after the closing had occurred; 9) Evans vigorously defended the lawsuit as he opposed the motion for an order of sale, forcing memorandums to be filed and a court hearing; and 10) Karstens filed multiple motions to compel to force Evans’ compliance with discovery. The trial court also noted that "the level of personal rancor between the attorneys was unusually high." In total, the trial court awarded $38,144.47 to Karstens and $26,616.55 to Evans.

This appeal follows.

Standard of Review

[1, 2] A partition action is a court-tried action that is reviewed under the standard announced in Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). Cooper v. Murphy, 276 S.W.3d 380, 383 (Mo. App. E.D. 2009). Therefore, the judgment will be affirmed "unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law." Calabrese v. Dwyer, 616 S.W.3d 517, 524 (Mo. App. E.D. 2021) (internal quotations and citation omitted). In our review, "[w]e accept as true the evidence and reasonable inferences therefrom in the light most favorable to the verdict, and disregard all contradictory evidence and inferences." Id. (quoting Hale v. Hale, 180 S.W.3d 85, 89 (Mo. App. E.D. 2005)).

Discussion

A. Points I & II – Ordinary Attorney’s Fees

Because Points I and II essentially contain the same argument, we will discuss these points together. In his first and second points on appeal, Evans asserts the trial court erred in awarding Karstens $17,669.32 in attorney’s fees entirely from Evans because the award for ordinary attorney’s fees should only be compensated out of the common fund for the amount of work the attorney conducted for the benefit of both parties. We agree. We remand for the trial court to determine the amount of partition-related attorney’s fees resulting from work done benefiting both parties that is to be deducted from the common fund of the sale of the Property. [3–5] "The trial court’s award of attor ney’s fees is reviewed for an abuse of discretion." Berry v. Volkswagen Grp. of Am., Inc., 397 S.W.3d 425, 430 (Mo. banc 2013). The trial court is considered an expert at fashioning an award of attorney’s fees and may make an award at its discretion. Id. "To demonstrate an abuse of dis cretion, 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." Id. at 431 (internal quotations and citation omitted).

[6–8] Under § 528.530² and Rule 96.30³, a trial court "shall allow a reason able fee to the attorney" who institutes the partition action. Calabrese, 616 S.W.3d at 528. "Because 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 bur den, 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, the attorney who brought the partition action is entitled to be compensated out of the common fund realized from the sale of the property, and absent vexatious action on the part of the defendant, the amount of those fees will be determined by work the attorney conducted for the benefit of both parties. Id.; Calabrese, 616 S.W.3d at 528. An attorney’s work that benefits both parties includes "preparing the court’s orders, assisting the sheriff or special commissioner to prepare the notices, advertising the sale, ensuring potential buyers for the sale, preparing the deeds and other documents after the sale, and disbursing the proceeds of the sale." Turner v. Pence, 514 S.W.3d 98, 109 (Mo. App. W.D. 2017) (quoting Ward v. Ward, 640 S.W.2d 477, 479 (Mo. App. E.D. 1982)).

[9] In the present case, the trial court awarded both ordinary and substantial attorney’s fees and ordered those fees be paid entirely by Evans. While Evans’ points on appeal take issue with ordinary attorney’s fees, the trial court lumped together the awards and failed to specify the amount for each award. Consequently, we cannot determine whether the trial court abused its discretion in awarding ordinary attorney’s fees without the specific amount for that award. Thus, we remand for the trial court to make findings as to the amount of partition-related attorney’s fees and costs for work Karstens’ attorney performed for the benefit of both parties. See Calabrese, 616 S.W.3d at 528–29 (reversing and remanding for trial court to determine amount of partition-related attorney’s fees where the trial court’s award was not limited to work the respondent’s attorney performed for the benefit of both parties). On remand, the trial court is directed to specify the amount to be paid to Karstens for attorney’s fees out of the common fund before dividing the remaining proceeds between the parties in accordance with this opinion. See id. at 529.

Points I and II are granted.

B. Point III – Substantial Attorney’s Fees

[10] In addition to awarding ordinary attorney’s fees, the trial court found a substantial award of attorney’s fees was warranted in this case "due to [Evans’] obstruction of the sale of the...