Warren-Cook v. Mo. Dep't of Pub. Safety

688 S.W.3d 75

Dawn WARREN-COOK, Respondent,

v.MISSOURI DEPARTMENT OF PUBLIC SAFETY, Ernie Rhodes and Todd Farley, Appellants.

WD 85927

Missouri Court of Appeals, Western District.

Opinion filed: April 9, 2024

APPEAL FROM THE CIRCUIT COURT OF COLE COUNTY, MISSOURI, THE HONORABLE COTTON WALKER, JUDGE

J. Andrew Hirth, Columbia, for Respondent.

Ray Rhatican, for Appellants.

Division Three: Mark D. Pfeiffer, Presiding Judge, Lisa White Hardwick, Judge and W. Douglas Thomson, Judge

W. DOUGLAS THOMSON, JUDGE

Ernie Rhodes ("Rhodes") and Todd Farley ("Farley") (collectively, "Appellants") appeal the amended judgment of the Circuit Court of Cole County ("trial court") following a jury verdict in favor of Dawn Warren-Cook ("Warren-Cook") on her section 105.055 whistleblower claims against Rhodes and Farley.¹ Appellants raise a single point on appeal, challenging the application of a 1.5 multiplier to an award of attorney’s fees to Warren-Cook. For the reasons discussed herein, we affirm, remanding only for the determination of the reasonable attorney’s fees and costs on appeal to be awarded to Warren-Cook.

Factual and Procedural History

Prior to her termination in July of 2017, Warren-Cook was employed by the Missouri Department of Public Safety ("DPS") in the State Emergency Management Agency ("SEMA"). At that time, Rhodes was the Director of SEMA, and Farley was Warren-Cook’s DPS supervisor. In August of 2017, Warren-Cook commenced this action against DPS, Rhodes, and Farley, alleging violations of the public employee whistleblower statute, section 105.055, and the Missouri Human Rights Act ("MHRA"). The action proceeded to trial in July of 2022, where a jury found against Rhodes and Farley on Warren-Cook’s whistleblower claims and awarded Warren-Cook $85,000 in compensatory damages. All other claims were found in favor of Rhodes; no other claim against Farley was submitted to the jury. In accordance with the jury’s verdict, the trial court entered a judgment for Warren-Cook in the amount of $85,000 on her whistleblower claims, plus post-judgment interest accruing at a 7.5% rate. Prior to the conclusion of trial, Warren-Cook abandoned her whistleblower claim against DPS. All other claims were found in favor of DPS.

[1, 2] On September 3, 2022, Warren-Cook filed a timely Motion to Amend Judgment to Award Attorneys’ Fees and Costs. The motion calculated a lodestar amount of $381.320,² and requested the application of a 1.5 multiplier to said amount, for a total attorney’s fees request of $571,980. Submitted with the motion were several exhibits, including time records, taxable costs, costs of litigation, affidavits from Warren-Cook’s attorneys, and affidavits from three other Missouri attorneys who practice in the area of employment law. A hearing on the motion was held on October 17, 2022. Thereafter, the trial court entered an amended judgment in favor of Warren-Cook on her whistleblower claims against Rhodes and Farley in the amount of $85,000, and awarded attorney’s fees in the amount of $571,980, taxable costs in the amount of $5,128.62, and other costs of litigation in the amount of $6,413.68 for a total judgment of $668,252.30, plus post-judgment interest at a rate of 8.25%.

Appellants appeal. Additional facts will be provided below, as necessary.

Standard of Review

[3–6] We review the trial court’s award of attorney’s fees for an abuse of discretion. Alhalabi v. Mo. Dep’t of Corr., 662 S.W.3d 180, 194 (Mo. App. W.D. 2023). "A trial court abuses its discretion when its decision is against the logic of the circumstances and so arbitrary and unreasonable as to shock one’s sense of justice." Id. (citations omitted). "We deem the trial court an expert on fees in a given case due [to] the court’s familiarity with all issues in the ease and the character of the legal services rendered." Gray v. Mo. Dep’t of Corr., 635 S.W.3d 99, 105 (Mo. App. W.D. 2021) (citation omitted). " ‘We presume an award of attorney’s fees to be correct, and the complaining party has the burden to prove otherwise.’ " Id. (quoting Hill v. City of St. Louis, 371 S.W.3d 66, 81 (Mo. App. E.D. 2012)).

Analysis

[7, 8] Before considering the point on appeal, this court must determine whether we have jurisdiction over the parties. The right to appeal is established by section 512.020(5), which provides in relevant part, "Any party to a suit aggrieved by any judgment of any trial court in any civil cause from which an appeal is not prohibited … may take his or her appeal to a court having appellate jurisdiction from any: … [f]inal judgment …. " Thus, "[a] party must be ‘aggrieved’ by the judgment below to have any right to appeal." Schroff v. Smart, 120 S.W.3d 751, 754 (Mo. App. W.D. 2003) (citation omitted). As previously stated, prior to the conclusion of trial Warren-Cook abandoned her whistleblower claim against DPS, and all other claims against DPS were found in its favor. Because of this, DPS is not an aggrieved party and lacks standing to appeal. See Parker v. Swope, 157 S.W.3d 350, 352-53 (Mo. App. E.D. 2005). Counsel for Appellants conceded this during argument. Accordingly, we dismiss DPS as a party to this appeal.

[9] In their sole point on appeal, Appellants claim trial court error in the application of a 1.5 multiplier to the initial, lodestar amount of attorney’s fees awarded to Warren-Cook. They contend Warren-Cook "failed to establish her entitlement to that multiplier, in that her application for fees does not provide any factual basis to support the trial court’s finding that taking this case precluded her attorneys from accepting other employment that would have been less risky." Appellants make no challenge to the lodestar amount or the calculation thereof. Accordingly, we are simply tasked with determining whether the trial court abused its discretion in applying the 1.5 multiplier in this case based on Appellants’ allegation that there was no evidence of foregone, "less risky" employment, and that same is required.

[10, 11] "Missouri follows the American Rule, which provides that parties bear the expense of their own attorney’s fees in the absence of statutory authorization or contractual agreement." Alhalabi, 662 S.W.3d at 194 (citation omitted). For whistleblowing claims, section 105.055.7(4) authorizes an award of "reasonable attorney fees" to a complainant. Following the determination of the lodestar amount, trial courts may consider whether enhancement of that amount by "a multiplier [is] necessary to ensure a market fee that compensated … counsel for taking [the] case in lieu of working less risky cases on an hourly basis." Berry v. Volkswagen Grp. of Am., Inc., 397 S.W.3d 425, 433 (Mo. banc 2013).

To assist trial courts in this assessment of a multiplier’s applicability, the Missouri Supreme Court has provided certain guidelines. In Berry, our Supreme Court first clearly stated that, in determining whether to apply a multiplier to the lodestar amount, a trial court "should avoid awarding a multiplier based upon facts that it considered in its initial determination of the lodestar amount." Id. at 432 (citation omitted). The Court then identified three factors the trial court had used that were not duplicative of the factors used in the initial Berry lodestar determination: (1) "[t]he fee to be received by … counsel was always contingent," (2) "[t]aking this case precluded … counsel from accepting other employment that would have been less risky" and (3) "[t]he time required by the demands of preparing this cause for trial delayed work on … counsel’s other work." Id. at 432-33 (alterations in original). The Court determined these three factors "support the application of a multiplier and demonstrate there was no abuse of discretion." Id. at 432.

[12] In arguing Warren-Cook failed to establish her entitlement to the multiplier, Appellants refer only to the second Berry factor, contending it alone lacks the necessary factual basis for support.³ Specifically, Appellants assert that the documentation submitted with Warren-Cook’s application for attorney’s fees failed to demonstrate that the cases rejected by her attorneys presented less risk than her case. Appellants thus conclude that by lacking this requisite factual foundation for the second factor, "at most, Warren-Cook satisfied two of the factors and at least three are required under Berry[,]" thereby rendering the trial court’s ruling arbitrary and unreasonable. We disagree.

[13] Appellants’ exact argument, that all three Berry factors must be satisfied to support the application of a multiplier, has recently been rejected by our Eastern District. In Kelley v. Dep’t of Corr., 679 S.W.3d 69 (Mo. App. E.D. 2023), the Missouri Department of Corrections ("DOC") similarly challenged the application of a 1.5 multiplier to an award of attorney’s fees to Kelley by arguing that "Kelley’s application for attorneys’ fees did not provide any factual basis to support the trial court’s finding that taking [the] case precluded Kelley’s attorneys from accepting other employment that would have been less risky." Id. at 86-87. In so arguing, the DOC interpreted Berry as Appellants do here, that is, as making all three Berry factors mandatory for a multiplier to be applied. Id. at 88. There, the Eastern District rejected this reading of Berry, stating "the only clear rule adopted in Berry with respect to applying a multiplier is that a trial court should ‘avoid awarding a multiplier based upon facts that it considered in its initial determination of the lodestar amount.’ " Id. (quoting Berry, 397 S.W.3d at 432). The Kelley court went on to hold:

[T]he foregoing three factors were not held to be strict requirements or elements requiring the absence of any one element to preclude the application of a multiplier. Rather, reading Berry (and its progeny)[ ] in proper context, we be-lieve that each case should be decided on a case-by-case basis, with due regard given to the three aforementioned

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