Dunbar v. Renfroe

856 So. 2d 378, 2003 Miss. App. LEXIS 179, 2003 WL 1228093
CourtCourt of Appeals of Mississippi
DecidedMarch 18, 2003
DocketNo. 2001-CP-01208-COA
StatusPublished
Cited by3 cases

This text of 856 So. 2d 378 (Dunbar v. Renfroe) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dunbar v. Renfroe, 856 So. 2d 378, 2003 Miss. App. LEXIS 179, 2003 WL 1228093 (Mich. Ct. App. 2003).

Opinions

KING, P.J.,

for the court.

¶ 1. The Scott County Chancery Court approved a petition to settle a doubtful claim belonging to the Estate of Daisey Pearl Saveli, but approved attorney’s fees of only 33 1/3%, for Dunbar-Monroe. Dunbar has appealed that decision, alleging that because it was employed under a durable power of attorney, the chancellor lacked authority to award attorney’s fees in an amount less than that identified by the employment contract. The decision of the chancery court is affirmed.

FACTS AND PROCEDURAL HISTORY

¶ 2. On May 12, 1997, Daisy Pearl Sa-veli executed a durable power of attorney appointing her two daughters, Shirley Renfroe and Marguerite Jordan, as her attorneys-in-fact. Under the terms of the durable power of attorney, Renfroe and Jordan were granted the authority “to do, act, perform or execute any and all instruments of any type or nature that [Savelle] could do if [she] were personally present.” In addition, the instrument stated, “this power of attorney shall not be affected by the subsequent disability or incapacity of the principal, or lapse of time.” The validity of the power of attorney is not in dispute.

[380]*380¶3. On August 7, 1998, Renfroe and Jordan, acting as attorneys-in-fact for Sa-veli, entered into a retainer agreement and contract of employment with the law firm of Holcomb, Dunbar, Connell, Chaffin and Willard, P.A., specifically retaining David C. Dunbar to pursue a personal injury claim against Shady Lawn Nursing Home on Saveli’s behalf. The employment contract provided that if suit were filed, the attorney’s fees would be forty percent of gross proceeds after the deduction of the law firm’s expenses incurred in prosecuting the claim. Dunbar subsequently left the Holcomb, Dunbar law firm and formed Dunbar Monroe, PLLC. On April 15, 2001, Renfroe and Jordan, acting as attorneys-in-fact for Saveli, executed a second retainer agreement and contract of employment with DunbarMonroe, PLLC, retaining Dunbar and authorizing him to continue with the prosecution of the personal injury claim. The attorney’s fees provision of the subsequent contract is identical to that of the former contract.

¶ 4. Dunbar continued to pursue the personal injury claim on Saveli’s behalf and eventually received an offer to settle the claim. Upon being presented with the settlement offer, Renfroe and Jordan determined that the offer should be accepted. After the power of attorney was executed, but prior to extension of the settlement offer, Saveli’s mental facilities diminished rendering her incompetent to administer her affairs.

¶ 5. On May 22, 2001, Dunbar, acting on behalf of Shirley Renfroe, individually and as conservatrix of the Estate of Daisey Pearl Saveli, and the DunbarMonroe Law Firm, filed a petition in the Scott County Chancery Court (1) for authority to settle a doubtful claim on behalf of the estate, (2) requesting the approval of the employment contract with Dunbar, and (3) for authority to disburse the settlement proceeds.

¶ 6. On May 25, 2001, the court heard the petition for authority to settle a doubtful claim. After the hearing the chancellor approved settlement of the claim, but declined to approve the employment contract of DunbarMonroe as submitted. The employment contract of DunbarMonroe called for attorney’s fees of 40% plus costs. However, the chancellor approved a fee of 33 1/3% plus costs.

¶ 7. On July 28, 2001, DunbarMonroe filed a petition requesting that the chancellor reconsider his prior order awarding attorney’s fees of 33 1/3%, and instead grant attorney’s fees of 40% as set forth in the contract. The chancellor denied that request on July 18,2001, saying:

While Mr. Dunbar request that the Court honor his original contract with the daughters of the ward, he failed and neglected to have that contract approved by the Court as required by Uniform Chancery Court Rules. Therefore, the contract is not binding on the Court. Instead, the Court has elected to adopt and approve its own contingent fee contract which has been utilized for several years in the Second Chancery Court District.
The Verified Petition for Reconsideration of Attorney’s Fees Arising from Settlement of a Doubtful Claim should be denied.

¶ 8. Aggrieved by that denial, Dunbar-Monroe has appealed, asserting that under the Durable Power of Attorney Act, the chancellor was obligated to approve the employment contract as written.

¶ 9. On December 4, 2002, this Court, on its own motion, remanded this matter to the Chancery Court of Scott County and directed it “to conduct a hearing and to make specific findings of fact and conclusions of law concerning the appropriate amount of attorney’s fees in this case. [381]*381Upon review of the issue of attorney’s fees, the chancellor shall provide a foundation for any award or denial of attorney’s fees and certify his findings to this Court.”

¶ 10. The parties declined to place additional evidence before the chancellor, electing instead to stand on the record as it existed.

¶ 11. The chancellor has now made his findings of fact and conclusions of law as requested, and certified the same to this Court.

STANDARD OF REVIEW

¶ 12. Findings of fact made by a chancellor will not be disturbed by this Court unless they are manifestly wrong, clearly erroneous, or unsupported by substantial credible evidence. Mississippi State Dept. of Human Serv. v. Barnett, 638 So.2d 430, 434 (Miss.1993). When the determination of the chancellor was one of law rather than fact, this Court will conduct a de novo review. McCubbin v. Seay, 749 So.2d 1127(¶ 5) (Miss.Ct.App.1999).

DISCUSSION

¶ 13. DunbarMonroe asserts that it was employed under a durable power of attorney with agreed compensation of 40% of recovery, and the chancellor therefore lacked the authority to lower the agreed upon compensation. Dunbar would thus have this Court find reversible error in the award of attorney’s fees of 33 1/3% rather than 40% as stated in the contract of employment.

¶ 14. In 1994 the Mississippi Legislature added § § 87-3-101 through 87-3-113, to the Miss.Code of 1972. These sections are cited as the “Uniform Durable Power of Attorney Act.”

¶ 15. A durable power of attorney is by definition one which survives the incapacity of its maker.1

¶ 16. Under the provisions of Miss. Code Ann. § 87-3-107, (Rev.1999):

All acts done by an attorney in fact pursuant to a durable power of attorney during any period of disability or incapacity of the principal have the same effect and inure to the benefit of and bind the principal and his successors in interest as if the principal were competent and not disable. Unless the instrument states a time of termination, the power is exercisable notwithstanding the lapse of time since the execution of the instrument.

¶ 17. Dunbar is clearly correct when it alleges that it was the intent of the Legislature in enacting the Durable Power of Attorney Act to bind a principal, even when incapacitated by the lawful acts of his attomey-in-fact. However, that analysis standing alone, under the facts of this case, is insufficient to resolve the question before this Court.

¶ 18.

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Related

In Re Guardianship of Savell
876 So. 2d 308 (Mississippi Supreme Court, 2004)
Dunbar v. Renfroe
876 So. 2d 308 (Mississippi Supreme Court, 2004)
David C. Dunbar v. Shirley Renfroe
Mississippi Supreme Court, 2001

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Bluebook (online)
856 So. 2d 378, 2003 Miss. App. LEXIS 179, 2003 WL 1228093, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dunbar-v-renfroe-missctapp-2003.