Baker v. Department of Mental Health

JOSEPH M. ELLIS, Judge.

I concur in the majority opinion’s denial of Appellant’s Point I on appeal, and I likewise concur in the majority’s recognition that Baker is entitled to an award of attorney’s fees incurred on appeal and its remand to permit the trial court to make such an award. I respectfully dissent, however, from the majority’s reversal of the trial court’s finding of a special factor under § 536.085(4), and its award of fees at an hourly rate of $150 per hour. I do so for two reasons. First, the majority opinion places an undue burden on the party seeking attorney’s fees by wholly disregarding the recognized expertise of the trial court on the subject of attorney’s fees. Secondly, the majority fails to recognize the evolution of appellate practice into a largely specialized area of legal work that may, in and of itself, constitute a special factor.

Section 536.085(4) provides that “attorney fees shall not be awarded in excess of seventy-five dollars per hour unless the court determines that a special factor, such as the limited availability of qualified attorneys for the proceedings involved, justifies a higher fee.” The language of the statute simply requires a determination by the trial court that a special factor exists. In support of such a finding, the statute does not require evidence beyond the expertise of the trial court on the subject. In the case at bar, the circuit court expressly took “judicial notice of ... the limited availability of qualified attorneys for this type of proceedings [sic]” and determined that this special factor justified a higher fee. This determination was sufficient to satisfy the requirements of the statute.

Certainly, the trial court’s award is still subject to review. Section 536.087.7 provides that this Court “may modify, reverse or reverse and remand the determination of fees and other expenses if the court finds that the award ... or the calculation of the amount of the award, was arbitrary and capricious, was unreasonable, was unsupported by competent and substantial evidence, or was made contrary to law or in excess of the court’s or agency’s jurisdiction.” In reviewing the award of attorney’s fees, “[w]hile questions of law are subject to de novo review, we defer to the [court]’s fact-finding and credibility determinations.” Sprenger v. Missouri Dep’t of Pub. Safety, 340 S.W.3d 109, 111 (Mo.App. W.D.2010).

In this case, at the evidentiary hearing, Respondent’s counsel took the stand as a witness under oath. Among other things, he testified, “It is difficult to find attorneys who will represent individuals in cases such as this. This is a difficult area.” Counsel further testified that it is very difficult to find an attorney that will do appellate work because not all attorneys “are able to handle that issue.” Counsel was certainly qualified to testify as to his expert opinion on the subject of attorney’s *245fees. See Klinkerfuss v. Cronin, 199 S.W.Sd 831, 840 (Mo.App. E.D.2006) (noting that counsel’s testimony was properly allowed though the trial court, as a expert on the subject itself, was not bound by any expert testimony on the issue of attorney’s fees). We must defer to the trial court’s credibility determination related to that testimony and the weight afforded thereto.1 Sprenger, 340 S.W.3d at 111.

The trial court found that “[t]he evidence established, and this Court takes further judicial notice of, the limited availability of qualified attorneys for this type of proceedings [sic].” This was a factual finding by the trial court to which we must defer. “[T]he trial court is deemed to be an expert on the necessity, reasonableness, and the value of attorneys’ fees.” Major Saver Holdings, Inc. v. Education Funding Group, LLC, 350 S.W.3d 498, 509 (Mo.App. W.D.2011) (emphasis omitted); see also Alhalabi v. Missouri Dep’t of Natural Resources, 300 S.W.3d 518, 530 (Mo.App. E.D.2009). “In the absence of contrary evidence, the trial court is presumed to know the character of the services rendered in duration, zeal and ability, and to know the value of them according to custom, place, and circumstance.” McCoy, 366 S.W.3d at 596 (internal quotation omitted); see also Essex Contracting, Inc. v. Jefferson Cnty., 277 S.W.3d 647, 656 (Mo. banc 2009).

Appellant contends in its point relied on that the trial court’s award of attorney’s fees was “unsupported by competent and substantial evidence in that the record is devoid of any evidence that the issues involved were so complex that specialized knowledge above general lawyerly competence was required or that Ms. Baker’s attorney was the only attorney in the area with the experience, knowledge, and ability to handle the underlying action.” In finding this point meritorious and concluding that the trial court’s factual finding that there was limited availability of qualified attorneys for this type of proceeding was not supported by the record, the majority wholly disregards our standard of review and completely fails to recognize, let alone provide any rationale for disregarding, the abundance of case law establishing that the trial court is an expert in the area of attorney’s fees and that the trial court may award attorney’s fees even without the aid of any evidence.2 See Western Blue Print *246Co. v. Roberts, 367 S.W.3d 7, 23 (Mo. banc 2012) (“The circuit court is deemed an expert at fashioning an award of attorneys’ fees and may do so at its discretion. The circuit court that tries a case and is acquainted with all the issues involved may fix the amount of attorneys’ fees without the aid of evidence.”) (internal quotation and citation omitted); McCoy, 366 S.W.3d at 602 (“The trial court sits as an expert in consideration of attorney fees due after consideration of all relevant factors. We have no basis for upsetting the trial court’s determination here. We will not reverse an award unless the award is so arbitrary or unreasonable that it indicates indifference and lack of proper judicial consideration.”) (Internal quotations and citations omitted); In re Marriage of Gardner, 320 S.W.3d 230, 235 (Mo.App. E.D.2010) (“[Cjourts are considered experts on the question of attorney’s fees, and the judge who tries a case and is acquainted with the issues can fix the amount of attorney’s fees without the aid of evidence.”); LPP Mortgage, Ltd. v. Marcin, Inc., 224 S.W.3d 50, 56 (Mo.App. W.D.2008) (“Since trial courts are considered to be experts on the issue of attorney fees, no evidence is necessary to support an award thereof.”); Davis v. Schmidt, 210 S.W.3d 494, 513 (Mo.App. W.D.2007) (“[T]he trial judge is an expert on the subject of attorneys’ fees and may award fees even though no evidence of reasonableness is introduced.”); Bacon v. Uhl, 173 S.W.3d 390, 399 (Mo.App. S.D.2005) (“A trial court is an expert on the reasonableness of attorney’s fees. Accordingly, a judge may award fees even though no evidence of reasonableness is introduced.”) (internal quotation and citation omitted).3 In other words, the case law establishes that the trial court’s expert knowledge and opinion alone is sufficient to support an award of attorney’s fees.

The record in the case at bar clearly reflects that the trial court relied upon its expertise in making its finding that a special factor exists. During the hearing on attorney’s fees, in denying Appellant’s motion for denial of attorney’s fees based upon Respondent’s alleged failure to present sufficient evidence to support such an award, the trial court expressly noted its recognized expertise on the subject of attorney’s fees and its ability to rely upon that expertise as support for such an award. Furthermore, in its judgment, the trial court took “judicial notice,” based upon its experience and expertise, of the limited availability of qualified attorneys for this type of proceeding. In this regard, I would be remiss if I failed to note that the trial judge in this case has been on the bench in central Missouri for many years and is no doubt familiar with a large number of practitioners in the area, has observed their skills, and is capable of identifying those attorneys competent to handle this type of case and any appeals involved therewith.

When the expertise of the trial court is properly considered, along with the testi*247mony of counsel, the record is clearly sufficient to support the trial court’s award. The majority may disagree with the trial court’s decision, but our standard of review provides no legitimate basis for this Court to substitute its judgment for that of the trial court.4 McCoy, 866 S.W.Sd at 601 (“[W]e know of no authority that would justify an attempt by this court, as a reviewing court, to substitute our judgment for that of the trial court.”) Accordingly, I would deny Appellant’s Point II5 and affirm the trial court’s award of attorney’s fees.

As to my second objection to the majority opinion, I am compelled to note my disagreement with the apparent position taken by the majority that appellate practice is not an area of legal specialization that the trial court could rely upon in finding a special factor. As the trial court presumably did, this Court may take judicial notice of the fact that the number of attorneys that handle appeals for the cases they try at the circuit court or administrative level has dramatically dropped off over the years and that cases on appeal are increasingly being referred to attorneys specializing in the area of appellate work. Indeed, this Court increasingly sees very talented, experienced and successful trial lawyers turning over the appellate work in cases they tried to appellate specialists. In other words, it is not just lawyers with little trial or appellate experience referring cases to appellate specialists; it is just as often, if not more so, the successful trial lawyer who wants to be successful on appeal as well.

While it certainly was not always the case, appellate practice has, over the years, evolved into a specialty in the legal field. This is further borne out by the fact that a number of states have specialty certification programs recognizing appellate practice as a legal specialty. Among the more notable, the Florida Bar, Board of Legal Specialization and Education; the Texas Board of Legal Specialization; the State Bar of California — Department of Legal Specialization; and the New Mexico Board of Legal Specialization. American Bar Association, Sources of Certification, (May 15, 2013), http://www.americanbar. org/groups/professional_responsibility/ committees-commissions/specialization/ resources/resources_ior_lawyers/sources_ of_certification.html.

While not every appeal may require such a specialist, a trial court familiar with the case could certainly find, under the circumstances of a particular case, that a specialist in appellate work was necessary and that this constituted a special factor warranting a rate above the $75.00 per hour for the appellate work. As noted supra, in the case at bar, counsel testified *248that it was difficult to find an attorney able to handle appellate work. The trial court could rely on that testimony, its own expertise, and it analysis of the nature of the case in finding that the appellate work involved in this case required a specialist in appellate work. Such a finding is, therefore, supported by the record in this case. While the majority may disagree with the finding, it is not free to substitute its judgment for that of the trial court. State v. Breedlove, 348 S.W.3d 810, 815 (Mo.App. S.D.2011) (“We may not substitute our judgment for that of the trial court and may not reverse even if we believe we would have weighed the evidence differently.”),' McCoy, 366 S.W.3d at 601 (“While judges could easily differ on the determination of the reasonable value of the services provided by HLF, we know of no authority that would justify an attempt by this court, as a reviewing court, to substitute our judgment for that of the trial court. The trial judge who heard the evidence first-hand is the judge best equipped to exercise the judgment and discretion called for ....”).

For this reason, even if I were to agree with the majority that the trial court erred in finding a special factor with regard to the legal work before the administrative agency (which I expressly do not as set out supra), I would nevertheless find that the trial court did not err with regard to the special factor finding regarding the appellate work involved in the case.

For the foregoing reasons, I would affirm the trial court’s judgment in all respects.

. The majority opinion classifies this sworn testimony as opinion "without specific reference to the facts and circumstances in Baker’s case” and as "vague and non-specific testimony.” The majority concludes, without citation to authority, that counsel's testimony "cannot be deemed to support a special factor finding." In making these assessments, the majority is doing nothing more than improperly re-weighing the evidence. Robbins v. Webco, Inc., 369 S.W.3d 787, 789 (Mo.App. S.D.2012) ("We cannot reweigh evidence or disregard findings supported by the record.”).

. The majority appears to disregard the expertise of the trial court, and the presumptive evidentiary value thereof, by relying on a statement in Sanders v. Hatcher, 341 S.W.3d 762, 768 (Mo.App. W.D.2011), that "the party requesting an award of attorney fees must present competent and substantial evidence to support the claim” that a special factor exists. Sanders quoted Washington v. Jones, 154 S.W.3d 346, 352 (Mo.App. E.D.2004), for that statement; however, the case cited by Washington in support of that proposition, Smith v. White, 114 S.W.3d 407, 420 (Mo.App. W.D.2003), does not support the conclusion that the trial court's expertise should not be considered in determining whether an award of attorney's fees in an agency proceeding is supported by the record; in fact, it does not involve § 536.085(4) in any way. Smith held that the record in that case, where attorney’s fees were awarded based upon a provision in the parties’ marital dissolution settlement agreement related to attorney's fees in the event of a breach of that agreement, was insufficient to determine which attorney’s fees were incurred dealing with the contempt claims and which fees related to other issues like the modification of child support. 114 *246S.W.3d at 420. This Court reversed the award and remanded for the development of a record as to what portion of the attorney’s work was attributable to the breach of the settlement agreement. Id. Smith simply does not support the conclusion that the expertise of the trial court should be disregarded, and a special evidentiary burden different from other cases involving awards of attorney's fees thereby established, in cases involving § 536.085(4). To the extent that Washington and/or Hatcher could be viewed as imposing such a requirement based upon their failure to acknowledge the trial court’s expertise in their sufficiency of the evidence analysis, they provide no rationale for creating such a requirement and should not be followed.

. The trial court's recognized expertise extends to fees for legal services provided on appeal. Klinkerfuss v. Cronin, 289 S.W.3d 607, 613 (Mo.App. E.D.2009).

. The majority inexplicably argues in footnote # 6 that that recognition of the evidentiary value of the trial court’s expertise and the judicial notice it took in making its factual finding that there was a "limited availability of qualified attorneys for this type of proceedings [sic]” is somehow contrary to the legislative intent. The legislature expressly intended for the trial court to be able to award attorney’s fees in excess of $75.00 per hour where the trial court finds that there was a "limited availability of qualified attorneys for the proceedings involved” or that some other special factor is present. § 536.085(4). The majority fails to explain, and I am unable to perceive, how recognizing the evidentiary value of the trial court's own expert knowledge and the judicial notice taken by the court in support of such a factual finding serves to defeat the legislative intent of the statute.

. As noted supra, § 536.087 also permits this Court to reverse the decision on fees if the award was arbitrary and capricious, or unreasonable, but Appellant asserts no challenge to the trial court’s award on that basis, and therefore, we need not and should not address the issue.