City of O'Fallon, Missouri, City of Troy, Missouri and City of Orrick, Missouri, on behalf of themselves and all others similarly situated, Plaintiffs/Respondents, and City of Butler, Missouri v. Centurylink, Inc., Centurytel of Missouri, L.L.C. d/b/a Centurylink, Centurytel Long Distance, L.L.C. d/b/a Centurylink Long Distance, Embarq Missouri, Inc., Spectra Communications Group, L.L.C., Embarq Communications, Inc. and Centurylink Communications, L.L.C., Defendants/Respondents. , 2016 Mo. App. LEXIS 284 ( 2016 )

In the Missouri Court of Appeals
Eastern District
DIVISION FOUR
CITY OF O’FALLON, MISSOURI, ) ED102562
CITY OF TROY, MISSOURI, and )
CITY OF ORRICK, MISSOURI, )
on behalf of themselves and all others
) Appeal from the Circuit Court
similarly situated, ) of St. Louis County
)
Plaintiffs/Respondents, )
)
and )
)
CITY OF BUTLER, MISSOURI, )
)
Appellant, )
)
v. )
)
CENTURYLINK, INC., CENTURYTEL ) Honorable Joseph S. Dueker
OF MISSOURI, L.L.C. d/b/a )
CENTURYLINK, CENTURYTEL LONG )
DISTANCE, L.L.C. d/b/a CENTURYLINK )
LONG DISTANCE, EMBARQ, )
MISSOURI, INC., SPECTRA )
COMMUNICATIONS GROUP, L.L.C., )
EMBARQ COMMUNICATIONS, INC., )
and CENTURYLINK )
COMMUNICATIONS, L.L.C., )
) Filed: March 29, 2016
Defendants/Respondents. )
Introduction
The City of Butler, Missouri (Appellant) appeals from the trial court’s December 12,
2014 judgment awarding attorney’s fees to class action counsel (Class Counsel), and denying
Appellant’s motion for attorney’s fees. We dismiss.
Factual and Procedural Background
The class action underlying this appeal involved cities or municipalities in Missouri that
were serviced by CenturyLink, Inc.; CenturyTel of Missouri, L.L.C. d/b/a CenturyLink;
CenturyTel Long Distance, L.L.C. d/b/a CenturyLink Long Distance; Embarq, Missouri, Inc.;
Spectra Communications Group, L.L.C.; Embarq Communications, Inc.; and CenturyLink
Communications, L.L.C. (Defendants) in various telephonic and telecommunication capacities.
These cities imposed business license taxes on income Defendants derived from the provision of
such services that Defendants neglected to pay. Plaintiffs were represented throughout
negotiations by Class Counsel. The negotiations ended in a favorable settlement for Plaintiffs.
The three named plaintiffs, also referred to as the class representatives, were the City of
O’Fallon, the City of Troy, and the City of Orrick. On May 10, 2012, the petition filed by Class
Counsel on behalf of the named plaintiffs and all others similarly situated alleged Defendants
underpaid license taxes in connection with the provision of telephone services to certain
Missouri municipalities. Defendants denied Plaintiffs’ allegations and alleged various defenses.
After removal to the U.S. District Court for the Eastern District of Missouri at Defendants’
request, the federal court remanded it to the circuit court of St. Louis County. On March 21,
2013, the case was reopened from mandate in the circuit court and Judge Joseph S. Dueker was
assigned. The parties began to engage in settlement discussions and negotiations which
continued for over one and one-half years. In addition to the three named plaintiffs, Class
Counsel entered appearance on behalf of municipalities in twelve other counties in Missouri.
On August 14, 2014, Cunningham, Vogel and Rost, P.C. (“CVR”) entered their
appearance in the action on behalf of putative class members, the cities of Aurora, Cameron,
Harrisonville, Oak Grove, and Wentzville (“the Aurora 5”).
2
After extensive settlement negotiations between Plaintiffs by Class Counsel and
Defendants, facilitated and overseen by Judge Dueker, the parties reached an agreement on
material terms and submitted a preliminary proposed settlement to Judge Dueker. Plaintiffs and
Defendants jointly moved for preliminary approval of the class settlement. A hearing was held
on August 22, 2014, at which time Judge Dueker preliminarily approved the settlement and
certified the following settlement class:
[A]ll Municipalities in the State of Missouri that, on or before August 22, 2014,
have imposed a Business License Tax and in which Defendants or any of them
derived gross receipts from the provision of telephone, exchange telephone,
public utility, or telecommunications services, or related services. Excluded from
the Settlement Class are the City of Aurora, Missouri, the City of Cameron,
Missouri, the City of Harrisonville, Missouri, the City of Oak Grove, Missouri,
and the City of Wentzville, Missouri (collectively, the “Aurora Plaintiffs”)[the
Aurora 5] and the City of Jefferson, Missouri.
On September 3, 2014, CVR entered appearance on behalf of the cities of Columbia,
Joplin, Butler, Warrenton, Platte City, Saint Joseph, Cape Girardeau, Liberty, Overland, Monett,
Warson Woods, Webster Groves, Fenton, Green Park, and Lee’s Summit (“Unnamed Class
Members”). CVR also again entered their appearance on behalf of the Aurora 5. CVR also filed
a motion to vacate the preliminary settlement and stay the proceedings, and a motion to shorten
time.
On September 5, 2014, the court held a hearing. The court denied CVR’s entries of
appearance and the motions to vacate, stay, and shorten time. Also at this hearing, Judge Dueker
ordered a first-class mailing of notices and claim forms to all municipalities in the State of
Missouri. The notices sent to every municipality in Missouri on September 5, 2014, set out all of
the terms included in the preliminary settlement; including a settlement amount, the amount of
Class Counsel’s attorney’s fees, and formulas and methods for determining both; and advice of
class members’ right to counsel and to voice objections at the final fairness hearing, or to simply
3
opt out of the proceeding if so desired. The notice also included the criteria for participating in
the class action settlement and a claim form to be filled out and returned confirming the
particular municipality’s qualifications to participate by fulfilling the definition of a class
member. The notice gave participating class members 60 days from the date of mailing notice to
respond and confirm their qualifications, i.e., that Defendants serviced their city; they imposed
by ordinance a license tax which Defendants did not pay; and they agreed to be bound by the
terms of the settlement or to voice objections to portions with which they did not agree. The
notices also notified the recipients they had 45 days to opt out of the entire proceeding. Finally,
the notice included the judge’s order that a final fairness hearing regarding the preliminary
settlement was scheduled for December 12, 2014.
In September 2014, the City of Columbia and 17 other municipalities (“the Columbia
18”), represented by CVR, filed multiple objections to the settlement while reserving the right to
exclude itself from the settlement class. Appellant Butler did not join in these objections. They
filed notices of their intentions to appear, motions for a hearing on their objections, motions to
amend the protective order Defendants had in place, motions to compel disclosure of information
from Defendants, and motions to stay the proposed settlement.  CVR filed another entry of
appearance on behalf of the Columbia 18. Plaintiffs and Defendants formally opposed the
motions. On September 26, 2014, the trial court heard the motions, and rejected every motion
and objection filed by CVR except that the court authorized supplemental notices to be sent to
purported class members more closely tracking the required language of Rule 52.08(c)(2)1 with
regard to entering an appearance via counsel, to-wit: that class members have a right to have a
lawyer appear for them until and unless they opt out.
1
All rule references are to Mo.R.Civ.P. 2014, unless otherwise indicated.
4
The court also confirmed the new objection/opt out deadline was October 27, 2014,
because the initial notices sent by Defendants to potential class members wrongly indicated the
deadline for objections/opt outs was October 27, despite the court’s order which correctly
provided that the deadline was October 20.2 The trial court further noted that class members,
i.e., Columbia, cannot make objections to the settlement and reserve the right to opt out because
these are mutually exclusive positions.
On October 22, 2014, eighteen3 of twenty-four municipalities represented by CVR
withdrew their objections and opted out of the settlement proceedings. On October 27, 2014,
CVR’s Butler, Buckner, Maryville, Platte City, and Warrenton (“the Butler 5”) reasserted their
previously filed objections4 as well as filed new ones, to-wit: (1) the “clear sailing” attorney’s fee
provision in the proposed preliminary settlement is cause for concern because it indicates
collusion between Class Counsel and Defendants, (2) the requested attorney’s fee for Class
Counsel is too high and should be reduced, and (3) the settlement agreement unfairly requires
class members to file objections before the application for attorney’s fees and expenses and
briefing in support is filed, and before the order and judgment is entered.5 Interestingly, in
conjunction with these objections to the settlement, CVR indicated they would withdraw their
objections in return for Binding Unilateral Agreements (BUA), which would provide that
Defendants shall not enforce ordinance exclusions against CVR cities, Defendants shall pay
additional attorney’s fees to CVR, and the agreements shall not apply to CVR cities that object
or opt out. These agreements were found by the court in its December 12, 2014 Order and
2
45 days from September 5, 2014, was October 20, 2014.
3
Adrian, Columbia, Fenton, Green Park, Joplin, Lee’s Summit, Liberty, Malden, Monett, Neosho, Overland,
Raytown, Saint Joseph, Warson Woods, Webster Groves, Woodson Terrace, Webb City, and Riverside.
4
This reassertion included Butler, although Butler had not yet filed any objections. The reasserted objections were
ones previously filed by Buckner on September 18, 2014 and Maryville, Platte City, and Warrenton on September
23, 2014.
5
These three new objections correspond to Points I, II and IV on appeal.
5
Judgment overruling the Objections to the Class Settlement to afford preferential treatment to
CVR cities in return for staying in the class and to be motivated by CVR’s self-interest rather
than any genuine desire to improve the class settlement.
On November 11, 2014, the Butler 5 objectors filed a Supplement to Objections, to-wit:
“The Cities of Buckner, Butler, Maryville, Platte City, and Warrenton, Missouri state that they
intend to present testimony and evidence from Nancy Thompson, City Counselor, City of
Columbia, Missouri, at the Final Fairness Hearing on December 12, 2014 in support of their
objections.” This supplement was filed beyond the October 27, 2014 deadline.
On November 20, 2014, a hearing was held, at which the court granted Plaintiffs’ motion
for approval of a second supplemental notice of class settlement and motion to shorten time.
This second supplemental notice allowed for opt outs up to and including the day of the Final
Fairness Hearing.
On December 5, 2014, Plaintiffs moved for final approval of the settlement, and filed a
motion to strike the Supplement to Objections filed by the Butler 5 on November 11, 2014 as
untimely and to bar testimony from the City Counselor of the City of Columbia, a city which had
opted out of the settlement. CVR had also denied Plaintiffs’ request to depose Columbia’s City
Counselor.
On December 10, 2014, the following 29 cities requested exclusion: Adrian, Arcola,
Canalou, Columbia, Fenton, Green Park, Joplin, Lee’s Summit, Leonard, Liberty, Malden,
Monett, Neosho, Overland, Ravenwood, Raytown, Ritchey, Riverside, Rush Hill, Saint Joseph,
Saint Peters, Sheridan, South Gifford, Three Creeks, Warson Woods, Weatherby, Webb City,
Webster Groves, and Woodson Terrace. Two hundred fifty-four cities’ claims were approved.
Thirty cities’ claims were ineligible due to deficiency.
6
On December 12, 2014, the Butler 5 withdrew their Supplement to Objections and
Motion to present the testimony of Columbia’s City Counselor.
On December 12, 2014, the Final Fairness Hearing regarding the preliminary settlement
was held. On December 12, 2014, the court entered its Order and Judgment Approving the
Settlement and its Order and Judgment Approving Attorney’s Fees for Class Counsel. The trial
court dismissed with prejudice the class action. The trial court overruled the Objections to the
settlement. The cities of Buckner, Butler, Cape Girardeau, Maryville, Platte City, and Warrenton
also objected to Class Counsel’s Application for an Award of Attorney’s Fees, and submitted a
proposed Judgment and Order in which the trial court would deny in part and sustain in part
Class Counsel’s Application for an Award of Attorney’s Fees, such that the court would award
$2,395,294.34 in attorney’s fees to Class Counsel, and $430,788.66 in attorney’s fees to the
Objecting Class Members and at their request, such amount would be paid to Objecting Class
Members’ counsel, CVR, to be held in trust by CVR for its clients. The trial court denied this
proposed Judgment and Order.
CVR did not file a written motion for attorney’s fees, other than the above proposed
Judgment and Order which asked for a specific amount of attorney’s fees but then stated it would
hold the monies in trust for the Objecting Class Members. CVR maintains it orally asked the
court for attorney’s fees in general at the Final Fairness Hearing, but did not submit any evidence
such as affidavits or time sheets in support of its hours worked or amount claimed. Class
Counsel submitted extensive supporting documentation for the amount of attorney’s fees it
sought, in addition to the fact that the amount had been part of the preliminary settlement from
the beginning and noticed to all class members and purported class members. Class Counsel
substantiated the amount further under a lodestar analysis, a percentage of the fund analysis, and
7
a marketplace analysis. Class Counsel fully briefed the matter, to which the court gave thorough
consideration at the Final Fairness Hearing, before approving the request in its Order and
Judgment Approving Attorneys’ Fees for Class Counsel.
This appeal follows.
Points on Appeal
In its first point, Appellant maintains the trial court erred in awarding attorney’s fees to
Class Counsel because the deadline for Class Members to object to the amount of the fees was
prior to the deadline for Class Counsel to request the fees.
In its second point, Appellant claims the trial court failed to apply a heightened standard
of scrutiny when considering the amount of attorney’s fees it awarded Class Counsel because the
amount was contained in a clear sailing clause.
In its third point, Appellant asserts the trial court failed to apply a heightened standard of
scrutiny when considering the amount of attorney’s fees it awarded Class Counsel because it
adopted Class Counsel’s proposed judgment of attorney’s fees as its own.
In its fourth point, Appellant states the trial court erred in awarding Class Counsel
$2,826,083 in attorney’s fees because such a high amount was an abuse of discretion in that it
was based on improper amounts, unfair, unwarranted, and an unreasonable amount at a
percentage higher than the 25% contained in the settlement agreement and unsupported by the
circumstances in this case including but not limited to the errors of Class Counsel, their self-
serving actions to obstruct class members’ participation, and their inclusion of terms such as the
clear sailing provision.
In its fifth point, Appellant contends the trial court erred in denying CVR’s request for
attorney’s fees because Appellant produced a beneficial result for the class in that Appellant
protected the rights of absent class members, aided in the court’s review of the case, and brought
8
to light issues of fairness and errors in the settlement agreement and notice that would have
otherwise gone uncorrected.
Standard of Review
The matter of attorney’s fees is within the circuit court’s sound discretion. In re Alcolac,
Inc. Litigation, 945 S.W.2d 459, 461 (Mo.App. W.D. 1997).
Discussion
Points I – IV Class Counsel Attorney’s Fees
Appellant’s first four points allege error in the trial court’s award of $2,826,083 in
attorney’s fees to Class Counsel. Appellant complains the deadline for objecting to the amount
of fees was premature, the amount was contained in a “clear sailing provision” and thus
suspicious, the court failed to apply a heightened standard of scrutiny when considering the
amount because it adopted Class Counsel’s proposed judgment and order in total, and the
amount was too generous. Despite the fact that we find each of these criticisms to be
substantively without merit, and already addressed in comprehensive fashion by the trial court,
we must primarily dismiss them because they are moot. Their mootness is dispositive of their
outcome on appeal.
The mootness of a controversy is a threshold question in any appellate review of that
controversy. State ex rel. Chastain v. City of Kansas City, 968 S.W.2d 232, 237 (Mo.App. W.D.
1998). A case must be dismissed as moot whenever an event occurs that renders a decision
unnecessary. State ex rel. Garden View Care Ctr. v. Missouri Health Facilities Review Comm.,
926 S.W.2d 90, 91 (Mo.App. W.D. 1996). Generally, the voluntary satisfaction of a judgment
renders any appeal from that judgment moot. State ex rel. Missouri Highway and Transp. Com’n
v. Christie, 890 S.W.2d 1, 2-3 (Mo.App. W.D. 1994), citing Kinser v. Elkadi, 654 S.W.2d 901,
9
904 (Mo.banc 1983). See also, Two Pershing Square, L.P. v. Boley, 981 S.W.2d 635, 638
(Mo.App. W.D. 1998).
In Exhibit A to Class Counsel’s Motion to Dismiss Appeal by Objector/Appellant Butler,
Missouri, with Combined Suggestions in Support, Class Counsel submits its Satisfaction of
Judgment. Class Counsel filed the Satisfaction of Judgment with the trial court on March 26,
2015. The Satisfaction of Judgment indicates Class Counsel acknowledges the trial court’s
Order and Judgment Approving Attorneys’ Fees for Class Counsel, filed December 12, 2014, has
been satisfied in full by Defendants. Rule 74.11 provides for satisfaction of a judgment:
(a) Acknowledgment of Satisfaction. When any judgment or decree is
satisfied otherwise than by execution, the judgment creditor shall immediately file
an acknowledgment of satisfaction.
(b) Who May Enter Satisfaction. Satisfaction may be entered by the
judgment creditor, his attorney of record, or an agent; if entered by an agent who
is not the attorney of record, his authority shall be filed.
When the judgment has been paid, the issue is settled and the question is moot. Stevens
Family Trust v. Huthsing, 81 S.W.3d 664, 667 (Mo.App. S.D. 2002); State v. Ethridge, 29
S.W.3d 420, 421 (Mo.App. S.D. 2000).6
Appellant posted no supersedeas bond pursuant to Rule 81.09 to prevent payment of the
attorney’s fees and satisfaction of the judgment. Rule 81.09(a) suggests a city or municipality is
not required to post a bond or seek a stay and an appeal by a city or municipality automatically
stays the execution of a Missouri judgment. Rule 81.09(a). However, although a municipal
appeal under Rule 81.09(a) may stay the execution of a judgment automatically, it does not
6
Although not yet addressed specifically in Missouri, this rule has been held in other jurisdictions to apply to the
appeal of an award of attorney’s fees by an intervenor class member in a class action. See, e.g., Butt v Evans Law
Firm, P.A., 98 S.W.3d 1, 13 (Ark. 2003) (The contest of attorney’s fees after those fees had been paid is moot.). In
Butt, the court acknowledged the intervenor class member who was contesting the amount paid was not the party
who actually paid the attorney’s fees but nevertheless, the court refused to examine previously paid attorney’s fees
when no supersedeas bond was posted and no stay of the order granting fees was issued. Id.
10
necessarily prevent the voluntary satisfaction of a judgment by the defendant without need for
execution, thus still rendering the appeal from that judgment moot.
Our finding of the mootness of Appellant’s first four points is buttressed by the following
factual realities. Appellant ultimately accepted the terms of the settlement. Appellant did not
choose to opt out. Appellant does not appeal from the judgment of settlement. Most of the
settlement proceeds have been paid out to hundreds of class member cities. The judgment of
attorney’s fees has been voluntarily satisfied.
A party may estop himself from appealing a judgment by performing any acts that are
inconsistent with the right to appeal or which recognize the validity of the judgment. Steen v.
Colombo, 799 S.W.2d 169, 174 (Mo.App. S.D. 1990). The estoppel may consist of any
voluntary act which expressly or impliedly recognizes the validity of the judgment, order or
decree. Id.
We also question whether Appellant has standing in this appeal. Appellant failed to
successfully intervene in the case before the trial court. In Ring v. Metropolitan St. Louis Sewer
Dist., 41 S.W.3d 487 (Mo.App. E.D. 2000), this Court addressed the issue of standing to appeal
with regard to an unnamed class member post-settlement:
No Missouri case has directly considered whether an unnamed class
member who was denied intervention has standing to appeal the approval of a
class action settlement. Missouri Rule 52.08 is identical to Rule 23 of the Federal
Rules of Civil Procedure; therefore, we look to federal precedent for guidance….
No Eighth Circuit case has directly addressed whether an unnamed class member
has standing to appeal the fairness of a settlement after a motion to intervene in
the underlying case was denied. However, in Croyden Assoc. v. Alleco Inc., 969
F.2d 675 (8th Cir.1992), an unnamed class member submitted written objections
to the proposed class action settlement, appeared at the fairness hearing, and made
oral objections at the fairness hearing, but failed to make a motion to intervene.
Croyden, 969 F.2d at 677. Relying on Guthrie v. Evans, 815 F.2d 626 (11th
Cir.1987) and Marino v. Ortiz, 484 U.S. 301, 108 S. Ct. 586, 98 L. Ed. 2d 629
(1988), the Eighth Circuit held that “unnamed class members who object to a
settlement must move to intervene, and they will be denied standing to appeal
11
when they have not done so.” Id. at 679. In Guthrie, the court held that unnamed
class members do not have standing to appeal a final judgment binding on the
class members, indicating three reasons. Guthrie, 815 F.2d at 628. First,
unnamed class members have not followed the procedures provided for in Rule 23
of the Federal Rules of Civil Procedure and therefore cannot represent the class.
Id. Second, unnamed class members who disagree with the course of the class
action have adequate procedures available to protect their interest. Id. Third,
class actions could become unmanageable and non-productive if each member
could individually decide to appeal. Id.
In Marino, the Supreme Court held that because the petitioners were not
parties to the underlying case and because the petitioners failed to intervene in the
underlying lawsuit they could not appeal the settlement. Marino, 484 U.S. at 304,
108 S.Ct. at 587. The Court noted the well-settled rule that only parties to a
lawsuit or those who properly become parties may appeal an adverse judgment.
Id. The Court also noted that “the better practice is for such a nonparty to seek
intervention for purposes of appeal; denials of such motions are, of course,
appealable.” Id.
While the cited cases do not specifically address standing to appeal when
an unnamed class member’s motion to intervene is denied, we find the reasoning
in Marino and Guthrie, adopted by the Eighth Circuit in Croyden, to be
persuasive here. Requiring intervention as a condition for appeal insures that
class actions will continue to serve their purpose in making the litigation
manageable. In addition, when a motion to intervene is denied the party still may
appeal the denial of the motion. Marino, 484 U.S. at 304, 108 S.Ct. at 588; State
ex rel. Reser v. Martin, 576 S.W.2d 289, 291 (Mo.banc 1978). We find that
neither the Barnes-Jewish class members nor the Roberts class members have
standing to appeal the adequacy of the settlement agreement because their
motions to intervene were denied. The motions to dismiss are sustained.
Ring, 41 S.W.3d at 490-91.
Although in the instant case Appellant is appealing the court’s judgment awarding
attorney’s fees to Class Counsel, and not the court’s judgment approving the settlement, the
instruction of Ring regarding standing still applies. Likewise, in the Butt case, the 3,019 class
members who were appealing the award of attorney’s fees but had not successfully intervened in
the case below were found to lack standing to appeal the award of attorney’s fees and were
dismissed. Butt, 98 S.W.3d at 7. Only one remaining class member, Mr. Butt, had intervened in
the class action and thus his appeal was allowed to proceed to the extent it was not mooted by the
12
voluntary payment of the attorney’s fees by various defendants, discussed supra in footnote
seven of this opinion. See Butt, 98 S.W.3d at 6-7.
Point V − CVR Attorney’s Fees
With regard to Appellant’s fifth point, the failure of the court to award CVR attorney’s
fees, CVR never petitioned the court for attorney’s fees. CVR contends it asked for them
generally and orally at the hearing, but CVR never submitted supporting evidentiary
documentation of the hours they spent on the case, tasks performed, hourly rate, or affidavits in
support of any of these things. Rather, they asked the court to award Appellant and the other
objecting class members represented by CVR (collectively the Butler 5 and Cape Girardeau)
$430,788.66 in a Proposed Order and Judgment, to be paid to CVR who “shall hold those monies
in trust in a separate segregated account for their clients and shall not commingle such monies
with its own monies.” This is not a proper way to submit a request or petition to the court for an
award of attorney’s fees. Again, on appeal, CVR does not ask for a specific amount of attorney’s
fees supported by itemized documentation. Without evidence in front of us, evidence which
necessarily had to have been before the trial court, it is impossible for this Court on appeal to
evaluate what amount of attorney’s fees, if any, to which CVR is entitled. The fact that CVR
never properly asked the trial court for attorney’s fees renders this point meritless. We cannot
convict the trial court of error on an issue that was not properly before it to decide. Blanks v.
Fluor Corp., 450 S.W.3d 308, 383 (Mo.App. E.D. 2014).
Circuit Court’s Discretion on and Consideration of Attorney’s Fees
Even if CVR’s request for attorney’s fees had been properly presented and preserved, the
circuit court is an expert on the question of attorney’s fees. In re Alcolac, 945 S.W.2d at 461.
The circuit court’s discretion, of course, is not without limits. It must not act arbitrarily or with
13
indifference. Roberts v. McNary, 636 S.W.2d 332, 338 (Mo.banc 1982); Nelson v. Hotchkiss,
601 S.W.2d 14, 21 (Mo.banc 1980). In determining the reasonable value of legal services, the
circuit court should consider the time spent, nature and character of services rendered, nature and
importance of the subject matter, degree of responsibility imposed on the attorney, value of
property or money involved, degree of professional ability required and the result. In re Alcolac,
945 S.W.2d at 461. The circuit court, however, may refuse to award attorney’s fees so long as it
gives the matter proper judicial consideration. In re Alcolac, 945 S.W.2d at 461; Roberts, 636
S.W.2d at 338; Nelson, 601 S.W.2d at 21.
The circuit court’s order shows it gave the matter of Class Counsel’s attorney’s fees
proper judicial consideration and it did not act arbitrarily or with indifference. The circuit court
acknowledged it had been advised about Class Counsel’s participation in the claims process and
that it had the affidavits of counsel which described in detail the services rendered to the fund
administrator by counsel. Class Counsel presented three common methods of calculating
attorney’s fees in class actions, and they all resulted in the fee they requested being reasonable.
The court held a lengthy and thorough hearing on the matter. The court itself observed the work
and hours Class Counsel devoted to a complex litigation entailing sophisticated negotiations that
resulted in a successful settlement for hundreds of class members. Such acknowledgements
establish that the court gave the matter adequate consideration and heightened scrutiny. Twenty-
five percent of the class fund is not an atypical percentage from which to calculate attorney’s
fees. There is nothing inherently inappropriate about a clear sailing provision with regard to
attorney’s fees, which are commonly used in class action settlement negotiations and inure to the
benefit of both defendants and class members in the process because, under such an agreement,
the defendant agrees not to contest the attorney’s fees as long as the award falls beneath a
14
negotiateed ceiling. The
T defendan
nt gets an ideea of its maxximum expoosure which ffacilitates
completion of the setttlement to th
he benefit off members oof the plaintifff class. In tthis case,
nts agreed no
Defendan ot to opposee Class Coun
nsel’s motionn for attorneyy’s fees in aan amount upp to
$2,826,083. The sam
me is true forr setting the deadline forr class membbers to objecct to the amoount
of the req
quested attorrney’s fees prior
p to the deadline
d for cclass counseel to request said fees. T
There
is also no
othing suspect about the court adoptiing Class Coounsel’s propposed order and judgmeent
and rejeccting CVR’s when it askeed both sides to submit ssame after exxtensive heaaring, briefinng,
and argum
ment. We discern
d no baasis for conclluding that tthe circuit coourt abused iits discretionn
with regaard to its awaard of attorn
ney’s fees to Class Counssel and non--award of atttorney’s feess to
CVR, alb
beit our cond
densed ex grratia review of the meritss of the mattter is mere surplus to ouur
ultimate holding thatt the first fou
ur points on appeal
a are principally diismissed as m
moot and thee
fifth preccluded from our review because
b it is unpreservedd. Appellannt’s standing to bring thiss
appeal is questionablle as well, bu
ut not necesssary to the reesolution of this case.
Conclusion
C
T appeal is dismissed.7
The
SHE
ERRI B. SUL
LLIVAN, J.
Lisa S. Van
V Amburg, C.J., and
Kurt S. Odenwald,
O J.., concur.
7
Class Couunsel’s motion
n to dismiss bassed on frivolou
us appeal and rrequest for costts, interest and damages for
frivolous appeal
a pursuantt to Rule 84.19
9 are denied. Class
C Counsel’ss motion to dissmiss based onn mootness is
granted.
15