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Docket No. 88393-Agenda 24-May 2000.

MORRIS B. CHAPMAN & ASSOCIATES, LTD., Appellee, v. JOHN KITZMAN et al., Appellants.

Opinion filed November 16, 2000.

JUSTICE BILANDIC delivered the opinion of the court:

This action for attorney fees was filed in the circuit court ofMadison County.

BACKGROUND

Johnny Kitzman died in an excavation-related accident inMissouri. His widow, Karen, hired the law firm of Morris B.Chapman & Associates to pursue legal recourse. Karen agreed topay Chapman one-third of any recovery as attorney fees. Chapmanfiled a wrongful death action in Missouri. According to Missourilaw, decedent's heirs included his widow and his parents.

Chapman obtained an $800,000 settlement for the benefit ofdecedent's heirs after working on the case for three years.Chapman filed a petition in the Missouri circuit court forsettlement approval and apportionment. Shortly before the hearingon the petition, decedent's parents, John and Edna Kitzman,retained separate counsel, John A. Kilo. The Kitzmans agreed topay Kilo one-third of any recovery in excess of $100,000 asattorney fees. They intervened in the cause and participated in thesettlement approval and apportionment hearing.

The Missouri court approved the settlement and entered anorder distributing 86% ($688,000) to Karen and 14% ($112,000)to the Kitzmans. The court awarded Chapman a fee consisting ofone-third of Karen's share ($227,040), but no part of theKitzmans' share. The court awarded Kilo a fee consisting of one-third of the Kitzmans' share over $100,000 ($4,000).

The Missouri court based its attorney fee awards on astatutory provision that required the circuit court to order theclaimant:

"To deduct and pay the expenses of recovery andcollection of the judgment and the attorneys' fees ascontracted, or if there is no contract, or if the party sharingin the proceeds has no attorney representing him beforethe rendition of any judgment or settlement, then the courtmay award the attorney who represents the originalplaintiff such fee for his services, from such personssharing in the proceeds, as the court deems fair andequitable under the circumstances." Mo. Rev. Stat.