SCOTT CALDWELL v. UNIFIRST CORPORATION AND MICHAEL SEEVER II (2026)

Introduction

UniFirst Corporation (UniFirst) and Michael Seever, II (Seever) (collectively, Appellants), appeal from the trial court's judgment in favor of Scott Caldwell (Caldwell) on his claims of disability discrimination and unlawful retaliation under the Missouri Human Rights Act (MHRA), as well as the court's award of attorney fees. Appellants raise six points of appeal arguing the trial court erred in (1) denying their renewed motion to compel arbitration; (2) denying their motion to amend the judgment and order Caldwell to elect a remedy; (3) denying UniFirst's motion for judgment notwithstanding the verdict (JNOV); (4) denying UniFirst's motion to reduce punitive damages verdicts for both claims; (5) denying UniFirst's motion for remittitur for both claims; and (6) granting Caldwell's motion for attorney fees. We dismiss Points One, Two, Three, Four, and Five, and affirm the trial court's judgment as to Point Six.

Factual and Procedural Background

Caldwell suffered a back injury while working at UniFirst, resulting in difficulties performing his job as a district service manager. The job description for that position required the ability to lift eighty pounds. Although UniFirst initially provided Caldwell reasonable accommodations to assist him in completing his duties, UniFirst stopped doing so on March 13, 2015, after Caldwell filed for workers’ compensation and postponed his surgery. On that same day, and against Caldwell's wishes, UniFirst imposed Family Medical Leave Act (FMLA) leave. Caldwell continued to seek medical treatment and provide updates to Appellants.

On May 7, 2015, Appellants informed Caldwell in writing he could not return to work due to his continued restrictions, citing the lifting requirement in his job description. Caldwell replied, expressing his desire to return to work and his disagreement that lifting eighty pounds was an essential part of his job. After receiving correspondence from Caldwell's physician regarding Caldwell's ability to return to work with accommodations, Seever, Caldwell's direct supervisor, instructed Caldwell to inform them when he would be able to return to work and complete his job functions.

After Caldwell's FMLA leave expired, UniFirst placed him on eight weeks of discretionary non-FMLA leave. UniFirst terminated Caldwell in July of 2015 after he exhausted his leave. On June 21, 2017, Caldwell filed suit against Appellants, alleging disability discrimination and retaliation under the MHRA and retaliation under Missouri's Workers’ Compensation Law. The case proceeded to jury trial, after which the jury returned verdicts in favor of Caldwell and assessed on each claim $150,000 in compensatory damages and $2,000,000 in punitive damages against UniFirst, and $1 in nominal damages and $4,000 in punitive damages against Seever. However, after conclusion of the trial, the court granted Appellants’ motion for JNOV in its entirety.

Caldwell appealed, and this Court affirmed the trial court's judgment as to the Workers’ Compensation retaliation claim, but reversed the judgment as to the MHRA disability discrimination and retaliation claims and granted Caldwell's motion for attorney fees on appeal. Caldwell v. UniFirst Corp., 694 S.W.3d 507, 529 (Mo. App. E.D. 2024). We remanded the matter to the trial court with instructions to reinstate the jury's verdict for the two MHRA claims, enter judgment in favor of Caldwell, and determine and enter an appropriate amount of attorney fees. Id.

On remand, but before the trial court entered judgment, Appellants filed a renewed motion to compel arbitration. On October 9, 2024, the trial court reinstated the jury's verdict on the two MHRA claims and entered judgment in favor of Caldwell against UniFirst for $4,300,000 and against Seever for $8,002. On November 8, 2024, Appellants filed a renewed motion for new trial, a motion to amend the judgment and order Caldwell to elect a remedy, and a renewed motion for JNOV on punitive damages or, alternatively, to reduce punitive damage verdicts or, alternatively, motion for remittitur. On April 24, 2025, the trial court denied all of Appellants’ after-trial motions and awarded Caldwell attorney fees in the amount of $2,016,115. Appellants filed their notice of appeal on June 2, 2025, and this appeal follows.

Discussion

Before reaching the merits of this appeal, we must first determine the threshold issue of the timeliness of Appellants’ notice of appeal. This Court ordered Appellants to show cause why their appeal should not be dismissed for lack of jurisdiction. Appellants responded, and we took the matter with the case. We find this Court does not have jurisdiction to hear Points One, Two, Three, Four, or Five because the notice of appeal was not timely filed. However, the notice of appeal was timely insofar as it applies to the trial court's judgment awarding Caldwell attorney fees. Accordingly, we dismiss Points One through Five and reach the merits of Point Six.

Timeliness of Notice of Appeal

A. Points One Through Five

A notice of appeal must be filed “not later than ten days after the judgment, decree, or order appealed from becomes final.” Rule 81.04(a).¹ If the trial court has not ruled on a timely filed, authorized after-trial motion, the motions are deemed overruled and the judgment becomes final ninety days from the date the last timely motion was filed. Rule 78.06; Rule 81.05(a)(2)(A).

Appellants rely on Taylor v. F.W. Woolworth Co., 641 S.W.2d 108, 111 & n.1 (Mo. banc 1982) to argue Rule 78.06's ninety day “deemed overruled” procedure is flexible when an appellate court reverses the trial court's granting of a motion for JNOV. In Taylor, a jury awarded the appellants a total of $72,500 for their injuries. 641 S.W.2d at 109. The respondent filed a motion for JNOV or, in the alternative, for a new trial. Id. The trial court granted the motion for JNOV and did not rule on the alternative motion for new trial. Id. The court of appeals reversed the entry of JNOV but remanded with instructions to rule on the motion for new trial. Id. Thirty-eight days after the mandate, the trial court granted a new trial, and the appellants again appealed, asserting, in part, that under Rule 78.06 the trial court lacked jurisdiction because more than ninety days had elapsed from the filing of the motion. Id. at 109-10.

The Supreme Court held the appellate court had the power to remand for a direct ruling on a motion for new trial that has been indirectly overruled by operation of law. Id. at 110. In a footnote discussing the length of time a trial court has to rule upon the motion once an appellate court mandates it to do so, the Court determined under those circumstances, the trial court acted within a reasonable time. Id. at 111 n.1. The Court declined to set a specific number of days the trial court has to issue its ruling, but opined “[c]ertainly no new 90-day period is triggered. In general, action within thirty days would be reasonable.” Id.

Here, we are bound by our Supreme Court Rules, which deem after-trial motions overruled if they have not been ruled upon after ninety days. Rule 78.06; Rule 81.05(a)(2)(A). Appellants’ last after-trial motions were filed on November 8, 2024. Because the trial court had not ruled on the motions, they were deemed overruled and became final ninety days later on February 6, 2025. The notice of appeal was due ten days later on February 18, 2025.² Appellants did not file their notice of appeal until June 2, 2025. Notably, Appellants agreed at oral argument that they “could have” filed a notice of appeal when the ninety days expired.

This case is distinguishable from Taylor, where the trial court was, at the direction of the court of appeals, considering a motion for new trial that had been filed after trial and not been ruled upon. 641 S.W.2d at 110. The trial court here was considering renewed after-trial motions Appellants chose to file after the case had been remanded, and did not rule on those motions within ninety days, at which point they were deemed overruled and the judgment became final.

Alternatively, Appellants ask us to treat their notice of appeal as a motion to permit late filing of the notice of appeal under Rule 81.07(a), which allows parties to seek a special order from the appropriate court of appeals permitting a late filing of the notice of appeal. To obtain such an order, the party must file a motion with notice to adverse parties within six months from the date the judgment appealed from became final. Rule 81.07(a). The movant must also demonstrate the delay was not due to the appellant's culpable negligence. Id. Appellants cite to Tillis v. City of Branson, 945 S.W.2d 447, 448 (Mo. banc 1997) in support of their request. In Tillis, the Supreme Court exercised its discretion to treat the appellant's suggestions in opposition to a motion to dismiss the appeal as a motion to permit late filing of the notice of appeal and decided the case on the merits. 945 S.W.2d at 448. The Supreme Court noted its decision was “less than six months after any date the [respondent] asserts judgment was final.” Id.

Here, however, there were no suggestions in opposition to a motion to dismiss the appeal. Appellants did brief the matter in its October 22, 2025 memorandum in response to this Court's show cause order. But unlike the response in Tillis, it was not done within the six-month window provided for in Rule 81.07(a), which closed on August 6, 2025, six months after the judgment became final. Therefore, insofar as it applies to the issues raised in Points One through Five, Appellants’ notice of appeal was untimely and this Court does not have jurisdiction to review those points. See Godfrey v. Metro. St. Louis Sewer Dist., 688 S.W.3d 99, 102 (Mo. App. E.D. 2024) (“When a notice of appeal is untimely, this Court lacks jurisdiction and must dismiss the appeal.”). Points One through Five are dismissed.

B. Point Six

Motions for attorney fees made pursuant to Rule 74.16 are independent actions, “and an unresolved claim for attorney's fees no longer arrests the finality of a judgment on the merits, even where the claim is pled in a petition.” Wiseman v. Mo. Dep't of Corr., 710 S.W.3d 29, 35-36 (Mo. App. W.D. 2025); see also Rule 74.16(b)(3) (a motion filed under this rule “is an independent action and not an authorized after-trial motion subject to Rules 78.04, 78.06, or 81.05”).

The trial court entered its amended judgment awarding Caldwell attorney fees totaling $2,016,115 on April 24, 2025. The judgment became final thirty days later, and the notice of appeal was due ten days after that, on June 9, 2025.³ Because Appellants’ notice of appeal was filed on June 2, 2025, it was timely insofar as it relates to the trial court's award of attorney fees.

Point Six: Attorney Fees

In Point Six, Appellants argue the trial court erred in granting Caldwell's motion for attorney fees because it awarded an excessive amount. Appellants claim the award is contrary to Missouri law and practice, is unsupported by adequate documentations, is not reduced for partial success, and improperly applied a multiplier. We disagree because the trial court did not abuse its discretion in determining the lodestar amount or applying a multiplier.

A. Background

Following a jury trial in which the jury returned verdicts in favor of Caldwell on each claim, Caldwell requested an award of attorney fees incurred through May 14, 2023. Specifically, Caldwell requested $1,645,370, which consisted of a lodestar amount of $822,685 and a multiplier of 2.0. The hours and rates were broken down as follows: Mr. Dashtaki reported 1031.90 hours at an hourly rate of $525, totaling $541,747.50; Mr. Kennedy reported 282.50 hours at an hourly rate of $500, totaling $141,250; Ms. Beck reported 544.60 hours at an hourly rate of $250, totaling $136,150; and Ms. Sintakas, a paralegal, reported 28.30 hours at an hourly rate of $125.00, totaling $3,537.50.

After this Court's decision in Caldwell in 2024, Caldwell filed a second motion for attorney fees. Caldwell renewed his request for $1,645,370 for time expended through May 14, 2023 and made an additional request for $499,130 for work performed from May 15, 2023 through October 29, 2024. This second figure consisted of a lodestar amount of $249,565 and a multiplier of 2.0. Mr. Dashtaki reported a total of 184.60 hours, which were billed at an hourly rate of $550 from May 15, 2023 to June 12, 2024, after which it increased to $600. Mr. Buchanan reported 218.58 hours at a rate of $600 for a total of $131,150. Mr. Kennedy reported 31.5 hours at a rate of $500 for a total of $15,750.

Caldwell filed a supplemental memorandum to his motion for attorney fees in which he requested fees for additional work performed between October 30, 2024 and December 11, 2024. Caldwell requested an additional $121,180, which consisted of a lodestar amount of $60,590 and a 2.0 multiplier. Mr. Dashtaki reported 25.20 hours at an hourly rate of $600, totaling $15,120. Mr. Kennedy reported 13.00 hours at a rate of $500, totaling $6,500. Mr. Buchanan reported 64.95 hours at an hourly rate of $600, totaling $38,970.

On April 24, 2025, the trial court issued its amended order and judgment awarding Caldwell attorney fees in the amount of $2,016,115, consisting of a lodestar of $822,685 and a multiplier of 2.0 for time expended through trial.⁴ In finding the 2.0 multiplier was warranted, the court considered three factors: the fee to be received by counsel was always contingent; that taking this case precluded counsel from accepting other, less risky employment; and the time required by the demands of preparing this case for trial delayed counsel's other work.

B. Standard of Review

Appellate courts review the trial court's award of attorney fees for an abuse of discretion. Gray v. Mo. Dep't of Corr., 635 S.W.3d 99, 105 (Mo. App. W.D. 2021). “We deem the trial court an expert on fees in a given case due [to] the court's familiarity with all issues in the case and the character of the legal services rendered.” Id. We presume the award of attorney fees is correct, and the burden is on the complaining party to prove otherwise. Id. “We will only reverse if it is shown that the award of attorney fees was against the logic of the circumstances and so arbitrary and unreasonable as to shock one's sense of justice.” Id.

C. Lodestar Amount

Section 213.111.2 ⁵ authorizes an award of “reasonable attorney fees” to the prevailing party in an MHRA action. Harrison v. Harris-Stowe State Univ., 626 S.W.3d 843, 860 (Mo. App. E.D. 2021). “While the trial court has discretion to award reasonable attorneys’ fees, there are factors that may be considered to determine the amount” to award. Berry v. Volkswagen Grp. of Am., Inc., 397 S.W.3d 425, 431 (Mo. banc 2013). The factors include:

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. (internal quotation omitted). In determining reasonable attorney fees, the starting point is the lodestar. Soetaert v. Novani Flips, LLC, 631 S.W.3d 580, 597 (Mo. App. W.D. 2021). “The lodestar is determined by multiplying the number of hours reasonably expended by a reasonable hourly rate.” Id. “A reasonable hourly rate is established according to the rates customarily charged by the attorneys involved and by other attorneys in the community for similar services.” Id. As to the number of hours, “[a] trial court has a ‘special understanding’ of the complexity of a case, and therefore is best equipped to determine the reasonableness of the hours expended by counsel.” Brewer v. Trimble, 926 S.W.2d 686, 688 (Mo. App. S.D. 1996) (internal quotation omitted).

Here, the trial court did not abuse its discretion in awarding the lodestar portion of the attorney fees because the hourly rates and hours expended were reasonable. Appellants assert the reasonable hourly rate is the prevailing market rate—the ordinary rate for similar work in the community where the case has been litigated—and argue Messrs. Dashtaki, Kennedy, and Buchanan's hourly rates are excessive in comparison to similar work performed in this market. However, “the 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.” Ferguson v. Curators of Lincoln Univ., 498 S.W.3d 481, 498 (Mo. App. W.D. 2016) (internal quotation and alterations omitted). The trial court had before it affidavits from each of Caldwell's attorneys detailing their experience and expertise in their areas of practice. Mr. Dashtaki attested he has represented Caldwell since July of 2015 on a contingent basis, which few attorneys are willing to handle due to the risk.

Regarding the number of hours reasonably expended, this case has been pending since June of 2017. Arbitration issues were litigated and appealed two separate times. The case proceeded to jury trial, after which the trial court granted Appellants’ motion for JNOV. The case was again appealed which resulted in a reversal. Appellants continued to litigate through post-trial motions. Considering the trial court is the expert on attorney fees in a case, we cannot say the court abused its discretion in determining the lodestar amount. Caldwell's attorneys are experienced litigators and handled this case through numerous appeals and a trial, spanning nearly a decade.

Appellants also assert the attorney fee award should be decreased because of block-billing, erroneous or vague entries, duplicative work, and an unsuccessful summary judgment motion. We are unpersuaded by each of these assertions. Appellants primarily rely on federal district court decisions in which the courts exercised discretion to reduce fee awards for inadequate documentation. A federal district court's decision is not binding on Missouri trial or appellate courts. In any event, the specific examples of block-billing, erroneous or vague entries, and duplicative work were not such that we can say “the award was against the logic of the circumstances and so arbitrary and unreasonable as to shock one's sense of justice.” See Gray, 635 S.W.3d at 105. The examples cited by Appellants ⁶ appear to have sufficient detail and relation that would allow the trial court—the expert on attorney fees—to determine the entries were reasonable. Regarding the duplicative work and meritless summary judgment assertions, we likewise cannot say the trial court's decision was lacking in careful consideration. The trial court received numerous motions, briefing, affidavits, time records, and took arguments of both sides. “The abuse of discretion standard gives us little room to second guess, even if we were so inclined, which we are not.” Grau Contracting, Inc. v. Captiva Lake Invs., LLC, 429 S.W.3d 472, 477 (Mo. App. S.D. 2014). We are not inclined to second guess the trial court.

Lastly, Appellants claim Caldwell's award of attorney fees should be reduced by one-third because he only prevailed on two of his three claims. “[W]here a plaintiff's claims are related and he has obtained excellent results overall, his counsel should recover a fully compensatory fee that should not be reduced simply because he has not prevailed on every litigated claim.” Alhalabi v. Mo. Dep't of Nat. Res., 300 S.W.3d 518, 531 (Mo. App. E.D. 2009). Caldwell's claims stemmed from Appellants’ same underlying course of conduct and he ultimately obtained favorable verdicts on two of the three claims, resulting in a total of more than $4,300,000 in damages. The trial court did not abuse its discretion in declining to reduce the fee award for partial success.

D. Multiplier

Appellants also complain about the trial court's application of a 2.0 multiplier. “After the trial court calculates the lodestar, it may also make ‘a finding that a multiplier [is] necessary to ensure a market fee that compensated ․ counsel for taking this case in lieu of working less risky cases on an hourly basis.’ ” Terpstra v. State, 565 S.W.3d 229, 251 (Mo. App. W.D. 2019) (alterations in original) (quoting Berry, 397 S.W.3d at 432). “In doing so, though, the court should avoid awarding a multiplier based upon the facts that it considered in its initial determination of the lodestar amount.” Id. (internal quotation omitted).

In Berry, the trial court considered seven factors in determining whether to apply a multiplier:

(a) The nature of the defect involved was a novel problem;

(b) The skill requisite to prepare and try this case ․ was high;

(c) Taking this case precluded [ ] counsel from accepting other employment that would have been less risky;

(d) The experience, reputation, and ability of [ ] counsel is outstanding;

(e) The fee to be received by [ ] counsel was always contingent, unlike the fees received by counsel for [the defense];

(f) The time required by the demands of preparing this cause for trial delayed work on [ ] counsel's other work; and

(g) [C]ounsel adduced evidence that the fee this Court believes is appropriate in this case is not disproportionately excessive in light of the potential benefit conferred on [the plaintiff].

397 S.W.3d at 432. On appeal, the Court held that although some of the seven factors considered by the trial court were duplicative of considerations made in determining the lodestar amount, at least three of the factors—contingent fee, precluded the taking of less risky employment, and delayed counsel's other work—supported the use of a multiplier and demonstrated there was not an abuse of discretion. Id. at 422-23.

Here, though the trial court did not provide any additional detail about its lodestar calculation other than it “was reasonable,” Appellants do not challenge the use of the multiplier on the grounds that the trial court considered the same factors in its initial determination of the lodestar. Rather, Appellants assert the majority of the Berry factors do not weigh in favor of applying the multiplier.⁷ Specifically, Appellants argue the nature of the issue was not novel, the skill required to prepare for and try the case was not particularly high, and that Caldwell provided no evidence suggesting counsel was precluded from accepting other less-risky work.

The three factors considered by the trial court—the contingent fee, precluded from accepting less risky employment, and delayed counsel's other work—support the application of a multiplier and demonstrate the court did not abuse its discretion. See Berry, 397 S.W.3d at 432-33. Had Caldwell not ultimately prevailed his attorneys would have been left uncompensated for nearly a decade of work. Adding to the risk of nonpayment is the inherent riskiness of employment discrimination cases, where “proof of discrimination is often complex and reliant on circumstantial evidence.” Harrison, 626 S.W.3d at 861. Mr. Dashtaki attested that by taking this case on a contingency fee basis, his “firm was precluded from undertaking more billable and contingency matters,” and that his firm asked for coverage from other attorneys and had to catch up on other work. Such considerations demonstrate the trial court did not abuse its discretion in applying a multiplier.

E. Conclusion

“A party cannot litigate tenaciously and then be heard to complain about the time necessarily spent overcoming its vigorous defense.” Williams v. Fin. Plaza, Inc., 78 S.W.3d 175, 187 (Mo. App. W.D. 2002) (internal quotation omitted). The trial court did not abuse its discretion in determining the lodestar amount, declining to reduce the award, or applying the 2.0 multiplier. Point Six is denied.

Attorney Fees on Appeal

“The MHRA authorizes awarding ‘reasonable attorney fees to the prevailing party’ in an MHRA action.” Caldwell, 694 S.W.3d at 528 (quoting section 213.111.2). “A prevailing party is one that succeeds on any significant issue in the litigation which achieved some of the benefit the parties sought in bringing the suit.” Id. (quoting Wilson v. City of Kansas City, 598 S.W.3d 888, 898 (Mo. banc 2020)).

Caldwell successfully defended the appeal of his MHRA claims for disability discrimination and retaliation. Because Caldwell succeeded on a significant issue, he is the prevailing party, and we grant his request for reasonable attorney fees on appeal. We typically remand to the trial court to determine and award attorney fees, as the trial court “is better equipped to hear evidence and argument and to evaluate the reasonableness of the requested fees.” Id. However, Eastern District Local Rule 400 was recently amended to require motions for attorney fees on appeal to include “a detailed list of the fees incurred for each legal service on appeal.” We are charged with finally disposing of the case, unless justice requires otherwise, and may “give such judgment as the court ought to give.” Rule 84.14.

Caldwell provided, with his motion for attorney fees on appeal, affidavits of appellate counsel and detailed timekeeping records. Mr. Buchanan reported 70.30 hours for his work on this appeal, billed at an hourly rate of $675, totaling $47,452.50. Mr. Dashtaki reported 95.20 hours at an hourly rate of $675, totaling $64,260. We find the hourly rate and hours expended reasonable and award Caldwell attorney fees on appeal in the amount of $111,712.50.

Conclusion

For the reasons set forth above, Points One, Two, Three, Four, and Five are dismissed. We deny Point Six and affirm the judgment of the trial court. We enter judgment granting Caldwell attorney fees on appeal in the amount of $111,712.50 against Appellants.

FOOTNOTES

1.   All rule references are to the Missouri Supreme Court Rules (2025), unless otherwise indicated.

2.   Because the tenth day fell on a Sunday, the notice of appeal was due the following business day. See Rule 44.01.

3.   Because the thirtieth day fell on Saturday, May 24, 2025, the date the judgment became final was the next business day, Tuesday, May 27, 2025. Likewise, June 7, 2025 was a Saturday, making the notice of appeal due the following Monday. See Rule 44.01.

4.   We note that the trial court's lodestar amount of $822,685 and 2.0 multiplier returns a total of $1,645,370. It appears the trial court awarded only a lodestar amount of $249,565 for the appeal, and $121,180 (consisting of a lodestar of $60,590 and a 2.0 multiplier) for post-trial motions.

5.   All statutory references are to RSMo (2016).

6.   Appellants’ examples of block-billed entries include: (1) 4.80 hours for “Work on Petition; Review Missouri Commission on Human Rights investigative file, and research case law regarding the same; Multiple Telephone call with co-counsel regarding same. Email draft to co-counsel, and client; Telephone conversation with RL regarding Worker's Comp Case[;]” (2) 1.90 hours for “Review draft second Request for Production to Defendant; review deposition notes; discuss same with LE; Discuss strategy; edit same; review Bates ID on Defendant's production; review same for filing;” (3) 7.70 hours for “Add [Deponent 1] testimony to casemap, read/designate [Deponent 2] deposition transcript, work on Corp Rep Depo outline; and (4) 8.20 hours for “work on punitive damage discovery motion; read Ds september and november 2022 production; Investigate interpretation of “oppose”; consult with [Mr. Dashtaki]; read [Deponent 3] transcript.”Appellants’ examples of vague entries include five entries categorized as “Legal research and briefing:” (1) 0.9 hours for “Legal research, Westlaw”; (2) 3.2 hours for “Summarize corporate representative depositions”; (3) 2.3 hours for “Summarize trial transcript”; (4) 2.0 hours for “Import Exhibits; continue summarizing trial transcript; and (5) 2.5 hours for “Review trial exhibits; summarize transcript.”

7.   We note that Berry did not create a set of factors to be weighed in determining whether to apply a multiplier. Rather, the Court examined seven factors considered by the trial court and determined the trial court did not abuse its discretion. Berry, 397 S.W.3d at 432-33. The Court further noted the federal guidelines, which do establish a list of factors to evaluate, may be useful to a court's determination. Id. at 432. However, the Court declined to adopt those guidelines in favor of retaining the trial court's discretion in awarding attorney fees. See id.

Virginia W. Lay, Judge

Michael S. Wright, Presiding Judge, concurs. Philip M. Hess, Judge, concurs.