Kenneth Ferguson v. Curators of Lincoln University, In Their Official Capacities, a/k/a Lincoln University

IN THE MISSOURI COURT OF APPEALS
WESTERN DISTRICT

KENNETH FERGUSON, )
)
Appellant-Respondent, )
) WD78752
v. ) (Consolidated with WD78777
) and WD78784)
)
CURATORS OF LINCOLN ) OPINION FILED:
UNIVERSITY, In Their Official Capacities, ) May 31, 2016
a/k/a LINCOLN UNIVERSITY, )
)
Respondent-Appellant. )

Appeal from the Circuit Court of Cole County, Missouri
The Honorable Jon E. Beetem, Judge

Before Division Four: Alok Ahuja, Chief Judge, and
Mark D. Pfeiffer and Karen King Mitchell, Judges

The Board of Curators for Lincoln University (Lincoln) appeals the trial court’s

judgment, entered upon a jury’s verdict, finding Lincoln liable for age discrimination under the

Missouri Human Rights Act (MHRA) against former Lincoln employee, Kenneth Ferguson.

Lincoln brings three points on appeal, arguing error in the admission of evidence, lack of

sufficient evidence to make a submissible case, and error in the award of attorneys’ fees.

Ferguson cross-appeals, arguing that the trial court failed to consider additional time required to

respond to post-trial motions in calculating the amount of attorneys’ fees to award. We affirm.
 Background1

Ferguson started working for Lincoln in 1977; he began as the Assistant Director of Civil

Activities. Over the years, he worked in various positions, including Director of Student

Activities, Coordinator of Men, Director of Scruggs University Center (Lincoln’s student union),

and Director of Student Life. In 2009, then-University President Carolyn Mahoney created a

new position, Director of Governmental and Community Relations, and appointed Ferguson to

the job.

On January 19, 2012, Lincoln’s Chief Financial Officer advised Dr. Mahoney that the

General Assembly was anticipating a 12.5% reduction in Lincoln’s budget allocation for fiscal

year 2013. Despite the anticipated budget cut, Lincoln still planned to increase salaries across

the board by 2%. In mid-February of 2012, the CFO sent Dr. Mahoney a second message,

indicating that the anticipated budget cut was reduced to 8%. On April 17, 2012, Ferguson’s

direct supervisor, Curtis Creagh, sent Dr. Mahoney an email regarding possible position

eliminations for the 2013 budget in order to address the anticipated budget cut. In the email,

Creagh stated:

I had two positions that were pending resolution: Tamala Norfus & Ken
Ferguson. Tamala is not yet eligible to retire; I want to keep this position until
she is. Ken Ferguson is eligible to retire; I can give up this position and
associated departmental expenses, if necessary.

In June 2012, when the Governor signed the budget, Lincoln suffered only a 1% cut in its

funding from the State.

Nevertheless, on July 16, 2012, Creagh sent a memo to Dr. Mahoney, recommending

Ferguson’s termination and stating, “The reason for the separation is insufficient budget to fund

1
We review the facts in the light most favorable to the verdict. Higgins v. Ferrari, 474 S.W.3d 630, 635
(Mo. App. W.D. 2015).

2
the office of Governmental Affairs.”2 The same day, Lincoln issued a termination letter to

Ferguson, advising him that “Due to budget constraints at Lincoln University, a decision has

been made to eliminate the position of Director of Governmental and Community Relations.

This letter is official notification that your employment at Lincoln University will terminate on

August 16, 2012.”3

Ferguson appealed the decision, claiming that he had been terminated because of his age,

and a grievance hearing was held before a review panel consisting of four individuals, one of

whom was Dr. K.B. Paul. During the hearing, Dr. Paul made the following comments:

Dr. Paul: You know, I see this thing from a different angle though.

If you were put in—in the position that Mr. Creagh is or where
Dr. Mahoney is and you are faced with a situation that you had to let a couple of
people go.

I—I thought that, you know, it was very nice of them that they kind of
went through the roster, that who can we—it isn’t—whenever you let somebody
go, it is never an easy decision. It is always very hard. It doesn’t matter who that
person is.

...

But, if I have a choice between somebody who has served his time here.
He has earned his full retirement. So this is one case.

Another case, that maybe somebody just young came here, started a job,
raising a young family, and if I let that person go, if I[’m] faced with the choice.

This person on one hand, this person can go on retirement and can still get
the full salary, full benefits, everything.

On the other hand this individual, if I let him go or (inaudible) go, then
this person is not ready to retire and this person is going to be faced with a lot of
hardship.

2
At trial, Creagh added—for the first time—that he believed Ferguson’s position should be eliminated
because it was an “outlier” among his direct reports and because Ferguson’s department had only one person.
3
Tamala Norfus was also terminated; Norfus and Ferguson represented the only two positions eliminated at
Lincoln for the 2013 fiscal year. $134,000 was saved as a result of eliminating these two positions.

3
 So I see this thing from a different point of view. I see where it is going to
affect the individual less. Now with all of that.

And I thought that—that was very humane on their part, that if I am faced
to the decision that I have to let one person go, do I pick this person? Do I pick
that person? Now, based on everything else being equal.

Following the hearing, the panel issued a report and findings with a recommendation to

uphold the termination. Dr. Mahoney sent Ferguson a letter stating:

This letter comes to notify you that the internal grievance panel has completed its
investigation into your allegations. For your information, I have attached a copy
of the Internal Grievance Panel’s report.

I have reviewed this matter carefully and I accept the findings and
recommendations of the sub-committee. No further action will be taken.

This completes the University’s internal grievance process on the matter.

Ferguson filed a charge of discrimination with the Missouri Commission on Human

Rights (MCHR), claiming that he was terminated as a result of age discrimination. MCHR

subsequently issued a right-to-sue letter, and Ferguson filed a petition against Lincoln alleging

violations of both the MHRA and the Age Discrimination in Employment Act (ADEA).

Ferguson subsequently dismissed the ADEA claim and proceeded solely under the MHRA.

At trial, Lincoln objected to the admission of Dr. Paul’s statements during the internal

grievance hearing, arguing that they were irrelevant because Dr. Paul was not a decisionmaker

and spoke only for himself—not the University. The court overruled the objection. The jury

ultimately found Lincoln liable for age discrimination under the MHRA.

Following trial, Lincoln filed a motion for new trial, arguing (among other claims) that

the evidence was insufficient to submit the case to the jury (on the ground that retirement

eligibility was not a proxy for age) and that Dr. Paul’s statements should not have been admitted

into evidence. Ferguson filed a motion for attorneys’ fees and costs, requesting a total of

4
$49,107.50 in attorneys’ fees, based upon a rate of $325 per hour. Ferguson also filed a response

to Lincoln’s motion for new trial. After filing the response, Ferguson filed a supplemental

affidavit, seeking $14,040 in additional attorneys’ fees for the time spent responding to the

motion for new trial.

On June 16, 2015, the trial court entered an order denying Lincoln’s motion for new trial

and awarding Ferguson attorneys’ fees in the amount of $49,107.50, the amount of the initial

request. One week later, Ferguson filed a motion to amend the order awarding attorneys’ fees,

noting that the amount awarded reflected the original request but not the additional amount

requested in the supplemental affidavit for work on the post-trial matters. The motion to amend

included a proposed judgment altering the attorneys’ fees award to $63,147.50, which the trial

court signed the next day.

Lincoln appeals and Ferguson cross-appeals.

Analysis

Lincoln brings three points on appeal: (1) the trial court erred in admitting Dr. Paul’s

statements because they were irrelevant; (2) the evidence was insufficient to submit the case to

the jury in that there was no evidence that age played a role in the decision to terminate

Ferguson; and (3) the award of attorneys’ fees was excessive insofar as $325 per hour exceeded

the prevailing rate and Ferguson obtained only limited success. Ferguson cross-appeals, arguing

that the court’s June 16, 2015 award of attorney’s fees failed to include additional attorneys’ fees

incurred in responding to Lincoln’s post-trial motions. We affirm.

A. The court committed no error in admitting Dr. Paul’s statements.

“The trial court has broad discretion in determining whether to admit or exclude

evidence.” State v. Johnson, 477 S.W.3d 218, 226 (Mo. App. W.D. 2015) (quoting State v.

5
Joyner, 458 S.W.3d 875, 880 (Mo. App. W.D. 2015)). “Thus, we review the trial court’s

decisions regarding the admission of evidence for an abuse of discretion.” Id. (quoting Joyner,

458 S.W.3d at 880). “The trial court abuses its discretion if its ruling is clearly against the logic

of the circumstances and is so arbitrary and unreasonable as to shock the sense of justice and

indicate a lack of careful consideration.” Id. (quoting Joyner, 458 S.W.3d at 880).

Here, Lincoln objected to the admission of Dr. Paul’s statements made during the internal

grievance hearing on the ground that they were irrelevant in that Dr. Paul was not a

decisionmaker; thus, his statements neither refuted nor proved that Ferguson’s age was a

contributing factor in his termination. We disagree.

“Employment discrimination cases . . . ‘often depend on inferences rather than on direct

evidence . . . because employers are shrewd enough not to leave a trail of direct evidence.’” Cox

v. Kansas City Chiefs Football Club, Inc., 473 S.W.3d 107, 116 (Mo. banc 2015) (quoting

Daugherty v. City of Maryland Heights, 231 S.W.3d 814, 818, 818 n.4 (Mo. banc 2007)).

“Therefore, individual plaintiffs claiming discriminatory employment action on the basis of age,

or any other protected classification, generally must rely on circumstantial evidence.” Id.

“As with other forms of evidence, circumstantial evidence of employment discrimination

must be both logically and legally relevant to be admissible.” Id. “Evidence is logically relevant

if it tends to make the existence of any fact that is of consequence to the determination of the

action more probable or less probable than it would be without the evidence, or if it tends to

corroborate evidence which itself is relevant and bears on the principal issue of the case.” Id.

(quoting State v. Tisius, 92 S.W.3d 751, 760 (Mo. banc 2002)). “The legal relevance analysis

requires the trial court to balance ‘the probative value of the proffered evidence against its

prejudicial effect on the jury.’” Id. (quoting Tisius, 92 S.W.3d at 760).

6
 “Not all comments that reflect a discriminatory attitude will support an inference that an

illegitimate criterion was a [contributing] factor in an employment decision.”4 Radabaugh v. Zip

Feed Mills, Inc., 997 F.2d 444, 449 (8th Cir. 1993). Courts “have carefully distinguished

between[: (1)] [c]omments which demonstrate a discriminatory animus in the decisional process

or those uttered by individuals closely involved in employment decisions, [and (2)] stray remarks

in the workplace, statements by nondecisionmakers, or statements by decisionmakers unrelated

to the decisional process.” Rivers-Frison v. S.E. Mo. Cmty. Treatment Ctr., 133 F.3d 616, 619

(8th Cir. 1998) (internal quotations omitted). In other words, the “inquiry is not limited to those

formally entrusted with decisionmaking duties.” Mohr v. Dustrol, Inc., 306 F.3d 636, 641 (8th

Cir. 2002), abrogated on other grounds by Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003). “If

a reasonable factfinder could conclude that [an individual] was closely involved in the

[employment] decision . . . , then his alleged comments are relevant to the direct evidence

analysis.” Id.

Here, Lincoln is correct that Dr. Paul was not a decisionmaker. But, as the Eighth Circuit

noted in Mohr, the “inquiry is not limited to those formally entrusted with decisionmaking

duties.” Mohr, 306 F.3d at 641. “When a decision to fire is made with no unlawful animus on

the part of the firing agent, but partly on the basis of a report prompted (unbeknownst to that

agent) by discrimination, [the] discrimination might . . . be called a ‘factor’ . . . in the

decision . . . .” Staub v. Proctor Hosp., 562 U.S. 411, 418-19 (2011). “[T]he exercise of

judgment by the decisionmaker does not prevent the earlier agent’s action . . . from being the

4
Eighth Circuit discrimination cases hinge upon whether discriminatory comments could support an
inference that an illegitimate criterion was a “motivating” factor in the employment decision. Radabaugh v. Zip
Feed Mills, Inc., 997 F.2d 444, 448 (8th Cir. 1993). Though age must be a “motivating” factor under the ADEA, it
need be only a “contributing” factor under the MHRA. Daugherty v. City of Maryland Heights, 231 S.W.3d 814,
818-19, 820 (Mo. banc 2007) (“Missouri’s discrimination safeguards under the MHRA . . . are not identical to the
federal standards and can offer greater discrimination protection,” and the “contributing factor” standard “is
consistent with the plain meaning of the MHRA.”).

7
proximate cause of the harm.” Id. at 419. Accordingly, “discriminatory comments . . . made

by . . . those in a position to influence the decisionmaker” are relevant to the question of whether

the plaintiff’s age was a contributing factor in the adverse employment decision.

Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 55 (1st Cir. 2000); see also

Stanley v. JerDen Foods, Inc., 263 S.W.3d 800, 804 (Mo. App. W.D. 2008) (“[A]ctions or

remarks . . . uttered by individuals closely involved in employment decisions may constitute

direct evidence” of discrimination (quoting Campos v. City of Blue Springs, Mo., 289 F.3d 546,

552 (8th Cir. 2002))).

Though Lincoln made the decision to terminate Ferguson’s employment before Dr. Paul

made his comments, that timing did not render the comments irrelevant. Dr. Mahoney relied on

the internal grievance panel’s report and findings to uphold Ferguson’s termination; she testified

that, if the panel had found differently, she may have changed her decision. Thus, Dr. Paul was

“in a position to influence [Dr. Mahoney,] the [ultimate] decisionmaker.” For this reason, his

comments were relevant and the trial court did not abuse its discretion in admitting them.

Lincoln’s Point I is denied.

B. The evidence was sufficient to support the jury’s determination that Ferguson’s age
was a contributing factor in his termination.
In its second point, Lincoln argues that the trial court erred in denying its motion for

directed verdict and motion for JNOV because Ferguson failed to make a submissible case that

age was a contributing factor in the decision to terminate his employment. “The standards of

review for denial of a motion for directed verdict and denial of a motion for judgment

notwithstanding the verdict are essentially the same.” Hurst v. Kansas City, Mo. Sch. Dist., 437

S.W.3d 327, 336 (Mo. App. W.D. 2014) (quoting DeWalt v. Davidson Serv./Air, Inc., 398

S.W.3d 491, 498 (Mo. App. E.D. 2013)). “To defeat either motion, the plaintiff must make a

8
submissible case by offering substantial evidence to support every fact essential to a finding of

liability.” Id. (quoting DeWalt, 398 S.W.3d at 498). “We view ‘the evidence in the light most

favorable to the jury’s verdict, giving the plaintiff the benefit of all reasonable inferences and

disregarding evidence and inferences that conflict with that verdict.’” Id. (quoting Sanders v.

Ahmed, 364 S.W.3d 195, 208 (Mo. banc 2012)). “This [c]ourt will reverse a jury verdict only

where we find a complete absence of probative facts to support the jury’s conclusion.” Id.

“[T]he crux of a cause of action under [the] MHRA for age[-]related employment

termination is that the defendant employer discriminated against the plaintiff employee by

illegally and unfairly considering [the] plaintiff’s age in making the decision to terminate.”

Thomas v. McKeever’s Enters., Inc., 388 S.W.3d 206, 214 (Mo. App. W.D. 2012). “It is the

consideration of [the] plaintiff’s age that constitutes the discrimination.” Id.; cf. Gokcen v.

Babbitt, 999 F.2d 542 (9th Cir. 1993) (holding that the ADEA requires more than mere

consideration of employee’s age; instead, the plaintiff must demonstrate some sort of animus or

stereotyping to prove discriminatory motive).

In the context of submissibility, then, a plaintiff makes a submissible case when
he . . . presents sufficient competent evidence from which a reasonable trier of
fact could find that it is more likely than not that (a) [the] plaintiff is in a protected
age classification; (b) [the] defendant discharged [the] plaintiff; (c) the
defendant’s consideration of [the] plaintiff’s age contributed to the decision to
discharge [the] plaintiff; and (d) [the] plaintiff was damaged.

Thomas, 388 S.W.3d at 214. Lincoln challenges only the third element—that consideration of

Ferguson’s age contributed to the decision to fire him. Specifically, Lincoln argues that

retirement discussions do not constitute evidence of age discrimination.

Even if Lincoln’s assertion were correct (a matter discussed in further detail below),

evidence of retirement discussions and consideration of Ferguson’s retirement eligibility were

not the only evidence supporting his claim. When Ferguson was terminated, he was advised that

9
his termination was the result of an “insufficient budget” and “budget constraints”; yet, Lincoln

eliminated only two positions for a total savings of approximately $134,000 while, at the same

time, issuing an across-the-board pay increase of 2% for a total cost of approximately $595,000.

Additionally, Creagh—though initially indicating that the termination was due to “insufficient

budget”—testified at trial that he chose to eliminate Ferguson’s position because it was an

“outlier” and because the department had only one employee. But Creagh never voiced these

considerations before Ferguson’s termination.

Evidence that an employer’s explanation for its decision is “unworthy of credence” is one

factor that “may well suffice to support liability.” Hazen Paper Co. v. Biggens, 507 U.S. 604,

613 (1993). “Proof that the defendant’s explanation is unworthy of credence is simply one form

of circumstantial evidence that is probative of intentional discrimination, and it may be quite

persuasive.” Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 147 (2000). Indeed,

“rejection of the defendant’s proffered reasons will permit the trier of fact to infer the ultimate

fact of intentional discrimination.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993).

And “upon such rejection, [n]o additional proof of discrimination is required.” Id. (internal

quotations omitted).

Nevertheless, the inference here is buttressed by the fact that the only two positions

eliminated were occupied by individuals eligible for retirement benefits, which brings us to

Lincoln’s argument that retirement eligibility is not a proxy for age; thus, Lincoln argues, the

fact that the only two positions eliminated were held by retirement-eligible individuals does not

demonstrate that age was a contributing factor. We disagree.

In Hazen Paper, the United States Supreme Court addressed the question of whether “an

employer’s interference with the vesting of pension benefits violate[d] the ADEA.” 507 U.S. at

10
608. In that case, the employer fired an employee just a few weeks before the employee reached

the ten-year service mark required to vest in the employer’s pension plan, but the employer

offered to retain the employee as a consultant—a position not entitled to pension benefits. Id. at

607. The employee sued under the ADEA for age discrimination, arguing that his pension status

was empirically correlated with age such that termination based upon his pension status

constituted age discrimination. Id. at 607-08. The Supreme Court disagreed. Id. at 609. The

Court noted that “an employee’s age is analytically distinct from his years of service,” pointing

out that “[a]n employee who is younger than 40, and therefore outside the class of older workers

as defined by the ADEA, may have worked for a particular employer his entire career, while an

older worker may have been newly hired.” Id. at 611 (internal citation omitted). Because age

and years of service are analytically distinct, the Court noted, “an employer can take account of

one while ignoring the other[;] . . . thus[,] it is incorrect to say that a decision based on years of

service is necessarily ‘age based.’” Id.

Lincoln relies on Hazen Paper to argue that retirement eligibility in this case cannot serve

as a proxy for age just as pension status was not a proxy for age in Hazen Paper. There are

several flaws in Lincoln’s logic. First, the Supreme Court did not preclude the possibility that

factors such as pension status and retirement eligibility might be considered a proxy for age in

some cases. In fact, the Court noted that “[p]ension status may be a proxy for age” if “the

employer . . . suppose[s] a correlation between the two factors and act[s] accordingly.” Id. at

613. Second, the Court specifically noted that the pension system at issue in Hazen Paper was

based solely on years of service, noting that it would be a different case “where an employee is

about to vest in pension benefits as a result of his age, rather than years of service.” Id. The

retirement system available to Lincoln employees was based upon a combination of an

11
employee’s age and years of service. Thus, unlike the pension system in Hazen Paper where the

employer could “take account of [either age or years of service] while ignoring the other,” id. at

611, Lincoln’s retirement system requires consideration of both age and years of service,

meaning neither can be ignored.

Though mere “inquiries into the retirement plans of an employee who is of retirement age

do not rise to the level of age discrimination,” Stanley, 263 S.W.3d at 804, when (1) the decision

to terminate an employee is based upon an age-dependent factor (such as retirement eligibility),

(2) the employer offers implausible alternate explanations for the termination, and (3) there is

evidence that someone with the ability to influence the decision acted based on age-based

stereotypes, there is sufficient evidence from which a jury can infer that age was a contributing

factor to the termination decision. And even if the jury accepted that Lincoln had to eliminate

positions because of budget constraints, “the decision as to [who] may be laid off in a reduction

in force may not be made on the basis of age.” West v. Conopco Corp., 974 S.W.2d 554, 557

(Mo. App. W.D. 1998). Here, there was sufficient evidence from which the jury could conclude

that consideration of Ferguson’s age was a contributing factor to Lincoln’s decision to eliminate

Ferguson’s position.

Lincoln’s Point II is denied.

C. The court did not abuse its discretion in calculating attorneys’ fees.

In its third point on appeal, Lincoln argues that the attorneys’ fees awarded were

excessive and should be reduced by half because Ferguson obtained only limited success and

there was no evidence that the rate sought ($325/hour) was actually charged to Ferguson or

received by his attorneys. In his cross-appeal, Ferguson raises a related point: he argues that the

12
trial court erred in failing to include the additional time spent responding to post-trial motions

when calculating the attorneys’ fees award. We will address these claims together.

Following the jury’s verdict, the trial court entered a final judgment on the verdict on

March 16, 2015. In that judgment, the court reserved Ferguson’s right to timely seek attorneys’

fees and costs as permitted by § 213.111.2.5 Specifically, the court ordered “that all other

claims, motions, or other prayers for relief are hereby dismissed, overruled, or denied; provided

however, plaintiff shall be entitled to timely move for statutory fees and costs under

Section 213.111.2 RSMo.” On March 27, 2015, Lincoln filed a motion for judgment

notwithstanding the verdict and for a new trial. On March 30, 2015, Ferguson filed a motion for

attorneys’ fees at a rate of $325/hour, along with costs associated with the action. In that motion,

Ferguson requested $49,107.50 in attorneys’ fees, representing a total of 151.1 hours of work.

Ferguson then filed suggestions in opposition to Lincoln’s post-trial motion, followed by a

supplemental affidavit from counsel, requesting an additional $14,040 in attorneys’ fees for the

43.2 hours spent responding to Lincoln’s post-trial motion. On June 16, 2015, the trial court

entered an order denying Lincoln’s post-trial motion and awarding Ferguson “his reasonable

costs and attorneys[’] fees in the amount of $3,634.46 and $49,107.50 respectively.”

One week after the court entered its order, Ferguson filed a motion to amend the order,

suggesting that the court had inadvertently omitted the additional attorneys’ fees incurred by

Ferguson in responding to Lincoln’s post-trial motion. The next day, the trial court entered an

“Order and Final Judgment Amending Order Awarding Attorney’s Fees,” in which the court

indicated:

On June 16, 2015, the Court sustained plaintiff’s motion for attorney’s fees as the
prevailing party and awarded fees to plaintiff of $49,107.50, together with costs
of $3,634.46 for a total of $52,741.96. This order did not include fees for time
5
All statutory citations are to the Revised Statutes of Missouri 2000, as amended.

13
 incurred responding to defendant’s post-trial motion for JNOV and for new trial,
43.2 hours, as set out in the supplemental affidavit of Michael G. Berry, filed on
April 21, 2015.

The court then purported to modify the June 16, 2015 Order “to include compensation for 43.2

additional hours, in the amount of $14,040.00 for total attorney’s fees of $63,147.50, plus costs

of $3,634.46, for a total of $66,781.96, with plaintiff to have final judgment against defendant in

that amount.”

“Prior to reaching the merit of the issues in this case, this Court must determine, sua

sponte, if there is a final judgment.” In re Estate of Pethan, 475 S.W.3d 722, 726 (Mo. App.

W.D. 2015) (quoting Ndegwa v. KSSO, LLC, 371 S.W.3d 798, 801 (Mo. banc 2012)). “A final

judgment is a prerequisite to appellate review.” Id. (quoting Ndegwa, 371 S.W.3d at 801). “If

the circuit court’s judgment was not a final judgment, then the appeal must be dismissed.” Id.

(quoting Ndegwa, 371 S.W.3d at 801). “A final judgment resolves all issues in a case, leaving

nothing for future determination.” Id. (quoting Ndegwa, 371 S.W.3d at 801).

There appear to be two judgments in this case: the March 16, 2015 judgment on the

jury’s verdict and the June 24, 2015 judgment on attorneys’ fees. Because “[t]here cannot be

two final judgments in the same action,” State ex rel. Berbiglia, Inc. v. Randall, 423 S.W.2d 765,

769 (Mo. 1968) (quoting Irwin v. Burgan, 28 S.W.2d 1017, 1021 (Mo. 1930)), we must discern

what rulings of the trial court constitute the final judgment in this case for purposes of appeal.

The March 16, 2015 judgment did not resolve the issue of attorneys’ fees. Case law is

somewhat inconsistent regarding the issue of whether an unresolved request for attorneys’ fees

precludes finality of a judgment. Compare Rheem Mfg. Co. v. Progressive Wholesale Supply

Co., 28 S.W.3d 333, 343 (Mo. App. E.D. 2000) (determining that a judgment was not final

because it failed to address the issues of attorneys’ fees and expenses); Hackathorn v. Four

14
Seasons Lakesites, Inc., 959 S.W.2d 954, 957-58 (Mo. App. S.D. 1998) (holding that a judgment

was not final because it had not resolved a counterclaim for attorneys’ fees); with Boatmen’s

Trust Co. v. Sugden, 827 S.W.2d 249, 252 (Mo. App. E.D. 1992) (holding that a judgment that

had not yet resolved attorneys’ fees was final, noting that “Under Rule 74.01(b),[6] a matter may

become final and appealable if it could be the subject of a separate judgment.”); State ex rel.

Hilburn v. Staeden, 62 S.W.3d 58, 61 n.1 (Mo. banc 2001) (“[T]he pendency of the application

for attorneys[’] fees does not prevent entry of a final judgment.”). Thus, it is unclear whether the

March 16, 2015 judgment, standing alone, would constitute a final judgment. But this is an issue

we need not decide, as the result will be the same regardless of whether the March 16, 2015

judgment is considered final.

Assuming the March 16, 2015 judgment could be considered final without addressing the

question of attorneys’ fees,7 the trial court retained jurisdiction to “vacate, reopen, correct,

amend, or modify its judgment within” thirty days.8 Rule 75.01. “After the expiration of the 30

days provided by Rule 75.01, the trial court is divested of jurisdiction, unless a party timely files

an authorized after-trial motion.” Spicer v. Donald N. Spicer Revocable Living Trust, 336

S.W.3d 466, 468-69 (Mo. banc 2011).

If a party timely files an authorized after-trial motion, the judgment becomes final
at the earlier of the following:

(A) Ninety days from the date the last timely motion was filed, on which
date all motions not ruled shall be deemed overruled; or
(B) If all motions have been ruled, then the date of ruling of the last
motion to be ruled or thirty days after entry of judgment, whichever is
later.

6
All rule references are to the Missouri Supreme Court Rules (2016).
7
If the judgment was not final without addressing attorneys’ fees, then it was only when the trial court
entered the June 24, 2015 judgment that all issues were resolved, creating a final judgment for purposes of appeal.
8
If a court intends to alter its judgment under Rule 75.01, it must first “giv[e] the parties an opportunity to
be heard” and have “good cause” for the alteration. Rule 75.01.

15
Rule 81.05(a)(2).

Here, Lincoln’s motions for judgment notwithstanding the verdict or, alternatively, a new

trial, were clearly timely, authorized post-trial motions. See State ex rel. Eddy v. Rolf, 145

S.W.3d 429, 433 n.2 (Mo. App. W.D. 2004) (recognizing that motions for new trial and motions

for judgment notwithstanding the verdict constitute authorized post-trial motions for purposes of

Rule 81.05). But it is not clear whether Ferguson’s motion for attorneys’ fees and costs

constituted an authorized post-trial motion for the purpose of extending the trial court’s

jurisdiction. And, unlike the finality of the March 16, 2015 judgment, we must decide whether

Ferguson’s motion for attorneys’ fees and costs constituted an authorized post-trial motion.

Normally, “[a] petition for attorney fees is not an authorized after-trial motion that serves

to extend the time period for filing a notice of appeal.” Burton v. Klaus, 455 S.W.3d 9, 12 (Mo.

App. E.D. 2014). But the Eastern District of this court has held that, when a request for

attorneys’ fees is filed by a plaintiff pursuant to the MHRA, “[t]he trial court [is] well within its

authority to treat this as a motion to amend under Rule 73.01 [now 78.04].” Brady v. Curators of

Univ. of Mo., 213 S.W.3d 101, 114 (Mo. App. E.D. 2006) (quoting Lippman v. Bridgecrest

Estates I Unit Owners Assoc., Inc., 4 S.W.3d 596, 598 (Mo. App. E.D. 1999)). And, of course, a

motion to amend the judgment is an authorized post-trial motion. Eddy, 145 S.W.3d at 433 n.2.

It appears that the trial court treated Ferguson’s motion as a motion to amend, and, under

the rationale in Brady, we see no error in that treatment. Under Rule 81.05, where timely,

authorized post-trial motions are made, a court’s jurisdiction extends to the earlier of either

ninety days from when the last timely motion was filed (which, here, would be June 28, 2015—

ninety days after Ferguson’s motion for attorneys’ fees and costs was filed) or, if all motions

have been ruled, the date of ruling of the last motion. Rule 81.05(a)(2). On June 16, 2015, the

16
court purported to rule on all of the post-trial motions by denying Lincoln’s motions and

sustaining Ferguson’s motion. Thus, it would seem that the trial court exhausted its jurisdiction

on June 16, 2015, which would mean that the trial court’s June 24, 2015 judgment was a nullity.

The problem, however, is that merely “sustaining” a motion to amend a judgment is ineffective

to actually amend the judgment.

To begin, the June 16, 2015 docket entry order, itself, does not constitute a judgment

insofar as it is neither signed nor initialed by the judge. See Rule 74.01 (“A judgment is entered

when a writing signed by the judge and denominated ‘judgment’ or ‘decree’ is filed.” (emphasis

added)); Jackson v. Cannon, 147 S.W.3d 168, 171 (Mo. App. S.D. 2004) (holding that docket

entry did not constitute a judgment because it was unsigned). For that reason alone, it cannot

constitute an amended judgment. More importantly, however, “a motion to amend the judgment

is [not] ‘rule[d] on’ [for purposes of Rule 81.05 unless], within ninety days of its filing: (1) the

motion is explicitly denied; (2) the trial court takes no action on it; or (3) an amended judgment

is actually executed and filed.” In re Marriage of Noles, 343 S.W.3d 2, 9 (Mo. App. S.D. 2011).

Because the trial court did not issue an amended judgment reflecting its June 16, 2015 order

sustaining Ferguson’s motion for attorneys’ fees and costs, it did not effectively “rule” on the

motion for purposes of Rule 81.05 on that date. Accordingly, the court did not lose jurisdiction

on June 16, 2015, as ninety days had not expired and it had not “ruled” on all timely, authorized

post-trial motions.

The trial court entered a second judgment on June 24, 2015, in which it granted Ferguson

$63,147.50 in attorneys’ fees and costs, representing the total amount requested by Ferguson in

both his original motion and his supplemental affidavit. Through this judgment—entered within

ninety days of the filing of the last timely, authorized post-trial motion—the trial court

17
effectively ruled on Ferguson’s motion for attorneys’ fees and costs. Accordingly, it was at that

time that a final judgment was rendered in the case.

It is true that, “[w]hen a judgment is once entered of record, it must stand as the judgment

unless it is vacated, modified, or disposed of by some means provided by law[, and e]ntering

additional judgments is not one of them.” Berbiglia, 423 S.W.2d at 769 (quoting Irwin, 28

S.W.2d at 1021). But “the mere entry of an order denominated ‘final judgment’ does not require

us to conclude that prior dispositive, albeit interlocutory, orders not mentioned in the judgment

have been summarily vacated.” RLI Ins. Co. v. S. Union Co., 341 S.W.3d 821, 828 (Mo. App.

W.D. 2011) (citing Magee v. Blue Ridge Prof’l Bldg. Co., 821 S.W.2d 839, 841 (Mo. banc

1991)). “[I]f the combined effect of several orders entered in a case, including an order

denominated ‘final judgment,’ is to dispose of all issues as to all parties, leaving nothing for

future determination, then the collective orders combine to form the ‘final judgment’ from which

an appeal can be taken.” Id. “We will not construe an order denominated ‘final judgment’ as

having the per se effect of vacating the trial court’s previously entered dispositive orders unless

the final judgment expresses the trial court’s intent to do so, or unless the peculiar circumstances

of the case permit no other reasonable conclusion.” Id.

The June 24, 2015 order and final judgment made no mention of the March 16, 2015

judgment or any intent to vacate the existing judgment. As such, we view the combination of the

March 16 and June 24, 2015 judgments as the “final judgment” in the case for purposes of

appeal. The trial court did not abuse its discretion in setting the fee rate at $325 per hour.

Lincoln argues that the rate used by the court to calculate Ferguson’s attorneys’ fees

($325 per hour) was excessive for two reasons: (1) the average rate for the Jefferson City area is

$220-250 per hour, and Ferguson offered no evidence that he was actually charged the higher

18
rate of $325 per hour; and (2) Ferguson achieved only limited success and his case lacked the

complexity to justify a higher award.

Section 213.111.2 provides that “[t]he court . . . may award court costs and reasonable

attorney fees to the prevailing party.” “The MHRA specifically authorizes attorney fees for

plaintiffs prevailing in discrimination suits . . . .” Holmes v. Kansas City Mo. Bd. of Police

Comm’rs ex rel. Its Members, 364 S.W.3d 615, 630 (Mo. App. W.D. 2012). “The reasons are

twofold: (1) to fully make the plaintiff ‘whole’ by compensating [him] for the costs of bringing

suit, and (2) to deflect that discrimination suits may result in nominal or small monetary

damages.” Id. “The act recognizes the public purpose served by litigation that vindicates the

rights of those who are discriminated against.” Id. (quoting Gilliland v. Mo. Athletic Club, 273

S.W.3d 516, 523 (Mo. banc 2009)).

“The determination of reasonable attorneys’ fees is within the trial court’s sound

discretion.” DeWalt v. Davidson Surface Air, 449 S.W.3d 401, 405 (Mo. App. E.D. 2014). “We

will not reverse that determination unless we find that the amount was arbitrarily arrived at or is

so unreasonable as to indicate indifference and a lack of proper judicial consideration.” Id.

While the determination of reasonable attorneys’ fees under the MHRA is in the
sound discretion of the trial court, there are . . . a number of factors to be
considered: (1) the rates customarily charged by the attorneys involved in the
case and by other attorneys in the community for similar services; (2) the number
of hours reasonably expended on the litigation; (3) the nature and character of the
services rendered; (4) the degree of professional ability required; (5) the nature
and importance of the subject matter; (6) the amount involved or the result
obtained; and (7) the vigor of the opposition.

Id. at 404. Of the factors, the most crucial is the degree of success obtained. Id.

Lincoln’s first complaint is that $325 per hour is well above the average rate charged in

the Jefferson City area, and Ferguson offered no evidence demonstrating that he was actually

charged such an exceptional rate. But Lincoln’s argument is misplaced for two reasons: first,

19
the trial court need not be presented evidence in order to fix the amount of attorneys’ fees; and

second, Ferguson did, in fact, present evidence in the form of affidavits, supporting the

reasonableness of the rate charged.

“In the absence of a contrary showing, the trial court is presumed to know ‘the character

of the services rendered in duration, zeal, and ability.’” Nelson v. Hotchkiss, 601 S.W.2d 14, 21

(Mo. banc 1980) (quoting Munday v. Thielecke, 290 S.W.2d 88, 92 (Mo. 1956)). And because

“[t]he trial court is considered to be an expert on the question of attorney fees,” it “may ‘fix the

amount of attorneys’ fees without the aid of evidence.’” Id. (quoting Sebree v. Rosen, 393

S.W.2d 590, 599 (Mo. 1965)). “The trial court is an expert on attorney’s fees and does not

require any evidence or other opinion as to their value.” Brewer v. Trimble, 926 S.W.2d 686,

689 (Mo. App. S.D. 1996) (quoting Schnucks Carrollton Corp. v. Bridgeton Health and Fitness,

Inc., 884 S.W.2d 733, 740 (Mo. App. E.D. 1994)).

In any event, Ferguson presented affidavits from two separate attorneys suggesting that

$325 per hour was a reasonable rate for a case of this type. 9 And, even assuming that Lincoln is

correct regarding the prevailing rate for the Jefferson City area, “[t]he relevant market for

attorneys in a matter such as this may extend beyond the local geographic community.” Casey v.

City of Cabool, Mo., 12 F.3d 799, 805 (8th Cir. 1993). “A national market or a market for a

particular legal specialization may provide the appropriate market.” Id. (quoting Hendrickson v.

Branstad, 740 F. Supp. 636, 642 (N.D. Iowa 1990)). “To limit rates to those prevailing in a local

community might have the effect of limiting civil rights enforcement to those communities

9
Lincoln contends that the affidavits were biased insofar as the attorneys authoring them had pending cases
against the same defense counsel and were acting in their own self-interest. The trial court apparently rejected this
argument and, notably, was not the first court to grant a $325 hourly rate. See Hill v. City of St. Louis, 371 S.W.3d
66, 81 (Mo. App. E.D. 2012); Phelps-Roper v. Koster, No. 06-4156-CV-C-FJG, 2014 WL 4312899, at *6
(W.D. Mo. Sept. 2, 2014), rev’d in part, vacated in part, 815 F.3d 393 (8th Cir. 2016); Barrett v. Claycomb,
No. 2:11-CV-04242-NKL, 2013 WL 6920860, at *2 (W.D. Mo. Dec. 9, 2013).

20
where the rates are sufficient to attract experienced counsel.” Id. “Civil rights would be more

meaningful, then, in those communities (large cities) where experienced attorneys can command

their customary fees.” Id. “This result would be in direct contravention of the purpose [to]

diffuse enforcement through the ‘private attorneys general’ concept.” Id. Furthermore, “[t]he

prevailing market rate is only a starting point, . . . as the rate charged should also take into

account the experience, skill, and expertise of the attorneys as well as the complexity,

significance, and undesirability of the case.” Barrett v. Claycomb, No. 2:11-CV-04242-NKL,

2013 WL 6920860, at *2 (W.D. Mo. Dec. 9, 2013). Ferguson’s counsel had handled over 200

civil rights cases during his twenty-eight-year career and, because of his experience, was able to

fully try the case with roughly only 150 billable hours.

Regarding the amount of success, Ferguson filed only one claim against Lincoln but was

awarded the full amount of compensatory damages sought.10 Lincoln offers no legitimate

justification for its argument that Ferguson’s level of success warrants a 50% reduction in the

attorneys’ fees awarded.

The trial court did not abuse its discretion is setting the hourly rate at $325 per hour.

Lincoln’s Point III is denied.

Ferguson’s cross-appeal, which argues that the trial court’s order of June 16, 2015, was

erroneous insofar as it omitted the additional fees requested in Ferguson’s supplemental

affidavit, is moot. As noted above, the trial court’s June 16, 2015 order was ineffective to rule

on Ferguson’s motion. It was not until the trial court entered the June 24, 2015 judgment that the

10
The jury awarded Ferguson a total of $104,901.00 in compensatory damages.

21
court effectively ruled on Ferguson’s request for attorneys’ fees and costs. And, because that

judgment included all of the relief Ferguson sought, his point on cross-appeal is moot.11

Conclusion

The court did not err in admitting evidence, overruling Lincoln’s motion for JNOV, or

setting the rate for Ferguson’s attorneys’ fees request at $325 per hour. The judgment is

affirmed but remanded for the purpose of allowing the court to assess reasonable attorneys’ fees

resulting from the appeal.

Karen King Mitchell, Judge

Alok Ahuja, Chief Judge, and
Mark D. Pfeiffer, Judge, concur.

11
Ferguson has filed a motion for attorneys’ fees on appeal, as well. Though we have the authority to grant
his motion, we are nevertheless remanding the matter of attorneys’ fees on appeal to the trial court for its
consideration.

22