REPLACES WITHDRAWN ORIGINAL OPINION (2 FEBRUARY 1999)

JUSTICE KUEHN delivered the opinion of the court:

John W. Kitzman III died in an industrial accident. His wife, Karen, hired Morris B. Chapman & Associates, Ltd. (Chapman), to pursue a wrongful death action. Karen agreed to pay Chapman one-third of any recovery. Chapman recovered $800,000 but was only paid $227,040. This action ensued.

The lawsuit filed on behalf of Karen in Missouri named Karen and decedent's parents, John and Edna Kitzman, as his heirs. Chapman obtained an $800,000 settlement for the benefit of those heirs, prepared a petition for settlement approval, and noticed a hearing.

A few days prior to the Missouri trial court's hearing on the petition, John and Edna retained separate counsel, attorney John A. Kilo. They agreed to pay Kilo one-third of their recovery in excess of $100,000. John and Edna intervened and participated in the settlement approval and apportionment hearing.

After the apportionment hearing, the Missouri trial court entered an order distributing 86% of the settlement ($688,000) to Karen and 7% ($56,000) each to John and Edna. It further ordered that Chapman's fee would consist of one-third of Karen's share ($227,040) only, while Kilo would receive one-third of John's and Edna's share over $100,000 ($4,000). The Missouri trial court based its fee apportionment on section 537.095(4)(2) of the Missouri Revised Statutes, which requires a trial court to order the claimant:

"To deduct and pay the expenses of recovery and collection of the judgment and the attorneys' fees as contracted, or if there is no contract, or if the party sharing in the proceeds has no attorney representing him before the rendition of any judgment or settlement, then the court may award the attorney who represents the original plaintiff such fee for his services, from such persons sharing in the proceeds, as the court deems fair and equitable under the circumstances." Mo. Rev. Stat.