IN THE SUPREME COURT OF MISSISSIPPI
NO. 2001-CA-01218-SCT
HEATHER NICOLE FRANKLIN, FRED M. HARRELL, JR. AND PAUL SNOW v.
JONATHAN PAUL FRANKLIN, A MINOR, BY AND THROUGH HIS NATURAL MOTHER, CATHY PHILLIPS, AND BILL WALLER, SR.
DATE OF JUDGMENT: 6/5/2001 TRIAL JUDGE: HON. JOE N. PIGOTT COURT FROM WHICH APPEALED: RANKIN COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANTS: FRANK W. TRAPP FRED M. HARRELL, JR. PAUL SNOW ATTORNEY FOR APPELLEES: BILL WALLER, SR. NATURE OF THE CASE: CIVIL - WRONGFUL DEATH DISPOSITION: REVERSED AND RENDERED - 02/13/2003 MOTION FOR REHEARING FILED: MANDATE ISSUED:
BEFORE SMITH, P.J., COBB AND DIAZ, JJ.
DIAZ, JUSTICE, FOR THE COURT:
¶1. On the Court's own motion, the original opinion is withdrawn, and this opinion is
substituted therefor.
¶2. At issue in this case is how attorneys' fees in a wrongful death suit should be
distributed. Jonathan Paul Franklin (Jonathan) brought suit on July 13, 1999, for the
wrongful death of his father. He was represented by attorney Bill Waller, Sr. (Waller). On July 20, 1999, Jonathan’s sister, Heather Nicole Franklin (Heather), also brought suit for the
same wrongful death. She was represented by attorneys Fred M. Harrell, Jr. (Harrell) and
Paul Snow (Snow). Circuit Court Judge John T. Kitchens ordered the cases consolidated.
His order provided that in the event of recovery, the proceeds would be distributed equally
among the heirs, and their attorneys would be compensated according to their existing
contracts with their respective clients. Pursuant to the order, the attorneys worked together
preparing for trial for over a year and a half, with Snow and Harrell doing most of the work.
The case settled on the day before trial. Thereafter, Waller sought all the attorney fees,
claiming entitlement based upon the fact that he filed the first wrongful death lawsuit. Judge
Kitchens recused himself, and Judge Joe N. Pigott was appointed. Judge Pigott vacated
Judge Kitchens’s order and awarded all attorney fees in the Franklin case to Waller.
¶3. Snow and Harrell’s Motion for New Trial was denied July 23, 2001. Aggrieved by
the lower court’s ruling, Snow and Harrell appeal, presenting the Court with the following
issues:
I. WHETHER THE SUCCESSOR JUDGE ERRED IN REFUSING TO AWARD ATTORNEY FEES TO SNOW AND HARRELL WHERE THEY WERE THE ONLY ATTORNEYS WHOSE CONTRACT WAS APPROVED PRIOR TO THE INSTITUTION OF SUIT AND WHERE THEY DID A MAJORITY OF THE WORK ON THE WRONGFUL DEATH SUIT.
II. WHETHER THERE WAS AN IMPLIED CONTRACT BETWEEN WALLER AND SNOW AND HARRELL FOR THE PAYMENT OF ATTORNEY FEES.
III. WHETHER JUDGE PIGOTT ERRED IN VACATING THE NOVEMBER 1999 ORDER OF JUDGE KITCHENS AFTER SNOW
2 AND HARRELL RELIED ON IT IN PREPARING THE CASE FOR TRIAL. IV. WHETHER THE FACT THAT WALLER HAD NO CONTRACT WITH HEATHER FRANKLIN MEANS HE IS NOT ENTITLED TO ATTORNEY FEES FROM HER.
FACTS
¶4. On July 9, 1999, Johnny Ray Franklin (Franklin) was killed in an automobile
accident. Franklin had two heirs, a minor son named Jonathan, and an adult daughter named
Heather. Jonathan, through his mother Cathy Phillips, filed a wrongful death suit on July
13, 1999. The suit was filed solely on Jonathan’s behalf and did not purport to represent the
interests of any other heirs. At the time, Jonathan was represented by William Wright
(Wright). Shortly after the lawsuit was filed, however, Wright was replaced as counsel by
Waller. Neither Wright nor Waller had their contingency fee contracts approved by the
chancery court before filing suit. Neither obtained the approval of the chancery court to file
a wrongful death suit on behalf of the estate; nor did they timely open a guardianship for
Jonathan.
¶5. Also killed in the crash was a passenger, Timothy Hawkins (Hawkins). His heirs
included both parents and four siblings, all of whom were represented by Snow and Harrell.
On March 16, 2000, the trial judge, Honorable John T. Kitchens, ordered that suit filed on
behalf of Hawkins’s heirs be consolidated with the suit for Franklin’s heirs. The Hawkins
case went to trial in August, 2000, and, after the jury awarded $470,000 in compensatory
damages, the Hawkins case settled for $700,000 during the punitive damages phase of the
trial.
3 ¶6. On July 20, 1999, Heather opened an estate in the chancery court and was named
administratrix. The chancery court approved a contingency fee contract with Harrell to
represent Heather individually and as administratrix of the estate. Harrell later associated
Snow. The chancery court also approved the filing of a wrongful death lawsuit for all the
heirs, which was filed that same day.
¶7. On November 22, 1999, Judge Kitchens ordered that Heather join in the lawsuit filed
by Jonathan. In his order, Judge Kitchens stated that the attorneys for each heir should
prosecute the case together and, in the event of a recovery, attorney fees would be
determined according to the contract signed between each heir and his/her respective
counsel. Waller’s Motion to Reconsider was denied. In reliance on the November 1999
order, Snow and Harrell worked diligently to prepare the case for trial, doing far more work
on the case than Waller. On August 7, 2000, the day trial was to begin, the case settled for
$1,750,000. Each heir received one-half of the settlement.
¶8. After settlement, Waller sought to have the circuit court award him all the attorney
fees. Waller argued that he should receive 100% of the Franklin attorney fees because he
filed the first wrongful death suit, and under the wrongful death statute there can only be one
lawsuit. He contended that any other lawsuits are therefore immaterial to the case first filed
and that the first lawsuit is to recover on behalf of all of the heirs. Snow and Harrell were
of the opinion that they should receive 100% of the attorney fees in the Hawkins case
because they represented all of the heirs and 50% of the fees in the Franklin case because
they represented one of the two children.
4 ¶9. On December 2, 2000, Waller filed a motion requesting Judge Kitchens to again
reconsider his November 1999 order regarding attorney fee splitting. The motion was
denied, and final judgment was entered on April 23, 2001. In the final judgment, however,
Judge Kitchens retained jurisdiction “to the extent required to resolve the pending issues
relating to the apportionment of attorney fees and expenses among the various counsel for
plaintiffs.”
¶10. On December 13, 2000, Waller filed a motion to recuse Judge Kitchens. Waller
contended that the November 1999 order indicated that Judge Kitchens was biased in favor
of Snow and Harrell. Following a hearing on January 25, 2001, Judge Kitchens, while
denying any reason to doubt his impartiality, voluntarily recused himself.1 Thereafter,
Special Judge Joe Pigott was appointed.
¶11. On June 5, 2001, Judge Pigott vacated the November 1999 order. Judge Pigott held
that while Heather had a right to join in the lawsuit filed by Jonathan, the control of the suit
was in the hands of Jonathan and his attorneys since his suit was filed first. Since all heirs-
at-law interests were represented in this one lawsuit, only one attorney’s fee was payable out
of the recovery. Judge Pigott also ruled, “[t]he Circuit Court had no authority to order
1 Snow and Harrell argue that Judge Kitchens should not have recused himself. They argue that the fact that Waller did not request Judge Kitchens to recuse himself until after he had presided over the case for a year and a half illustrates that Waller waived any right to have Judge Kitchens recused. See Buchanan v. Buchanan, 587 So. 2d 892, 897 (Miss. 1991) (the court “will not allow a party to take his chances with a judge about whom he knows of grounds for recusal and then, after he loses, file his motion”); Wilbanks v. Gray, 795 So. 2d 541, 547 (Miss. Ct. App. 2001) (“If the appellants had a problem with the religious affiliation of the special chancellor, their motion for recusal should have been filed at the beginning of the action rather than after receipt of an adverse ruling.”).
5 attorneys Snow and Harrell into the Franklin case and no authority to adjudicate the division
of attorney’s fees prospectively before recovery. Circuit Courts should not interject
attorneys into another attorney’s cases and require a division of fees.” Judge Pigott awarded
all attorney fees from the Franklin settlement in the amount of $859,326.50 to Waller;
including $430,000 in attorney fees provided for in Heather’s contract with Snow and
Harrell.2 Waller was allowed $10,500 as reimbursement for expenses. Snow and Harrell
were allowed $20,847 for expenses. They allege total expenses of $41,694.3
¶12. Harrell and Snow’s Motion for New Trial was denied July 23, 2001. They filed their
Notice of Appeal on August 22, 2001.
DISCUSSION
¶13. The standard of review regarding attorney fees is the abuse of discretion standard.
Mauck v. Columbus Hotel Co., 741 So.2d 259, 269 (Miss. 1999). However, whether
wrongful death beneficiaries should be allowed to retain and pay their own counsel out of
their portion of any recovery is a question of law, as it necessarily involves interpretation of
the wrongful death statute. For questions of law, our standard of review is de novo. Smith
v. Dorsey, 599 So. 2d 529, 533 (Miss. 1992). Thus, we sit in the same position as did the
trial court.
I. WHETHER JUDGE PIGOTT ERRED IN REFUSING TO AWARD ATTORNEY FEES TO SNOW AND HARRELL WHERE
2 $45,000 of this went to Wright, who represented Jonathan for 45 days before giving the case to Waller. 3 Snow and Harrell were reimbursed their remaining expenses of $20,847 in the Hawkins case.
6 THEY WERE THE ONLY ATTORNEYS WHOSE CONTRACT WAS APPROVED PRIOR TO THE INSTITUTION OF SUIT AND WHERE THEY DID A MAJORITY OF THE WORK ON THE WRONGFUL DEATH SUIT.
¶14. Mississippi’s wrongful death statute, Miss Code Ann. § 11-7-13 (Supp. 2002),
created a cause of action unknown to the common law. The wrongful death action is not
part of the estate of the deceased. Partyka v. Yazoo Dev. Corp., 376 So. 2d 646, 650 (Miss.
1979) (citing Byars v. Austin, 218 So. 2d 11, 15 (Miss. 1969)). Only those individuals
listed in the wrongful death statute may bring this independent cause of action. Partyka,
376 So.2d at 650 (citing Hasson Grocery Co. v. Cook, 196 Miss. 452, 459, 17 So.2d 791
(1944)). On appellate review, we strictly construe Mississippi’s wrongful death statute.
Smith v. Garrett, 287 So. 2d 258, 260 (Miss. 1973) (collecting authorities).
¶15. The wrongful death statute recites a list of those persons who may act as the named
plaintiff in an action but it does not give preference to one potential plaintiff over another.
The only limitation in the statute is that, no matter which of the multiple persons authorized
to bring the suit actually does so, “there shall be but one (1) suit for the same death which
shall ensue for the benefit of all parties concerned . . . .“ Miss. Code. Ann. § 11-7-13 (Supp.
2002) (italics added). A basic tenet of statutory construction is that “shall” is mandatory and
“may” is discretionary. Planters Bank & Trust Co. v. Sklar, 555 So.2d 1024, 1027 (Miss.
1990); Murphy v. State, 253 Miss. 644, 649, 178 So. 2d 692 (1965). Thus, in most
wrongful death cases, the first wrongful death lawsuit filed represents the interests of all the
wrongful death heirs, to the exclusion of any subsequently filed lawsuits. Because there may
be but one lawsuit filed in any wrongful death case, this “first-to-file” rule gives preference
7 to the first case filed. However, it does not prohibit the court from ordering multiple
wrongful death suits to be joined. Mobile, Jackson & Kansas City R.R. v. Hicks, 91 Miss.
273, 46 So. 360, 397 (1908). Indeed, the statute explicitly allows all interested parties to
join in the suit. Miss. Code Ann. § 11-7-13. See also M.R.C.P. 20. Because the two
Franklin heirs each brought a wrongful death lawsuit for the same death, they obviously ran
afoul of the statute. Thus, Judge Kitchens’s November 1999 order combining Heather and
Jonathan’s wrongful death cases was proper. The question remains whether his
apportionment of attorney fees between the parties according to their pre-existing contracts
and allowing Snow and Harrell to participate in the joined lawsuit was also proper or, as
Judge Pigott held, in error.
¶16. Judge Pigott’s award on June 5, 2001, of all the attorney fees to Waller came a year
and a half after Judge Kitchens’s order allowing Snow and Harrell to participate in the
lawsuit. Judge Pigott held that, though Heather had a right to participate in the wrongful
death action, control of the suit was in the hands of Jonathan and his attorneys since his suit
was filed first. Snow and Harrell argue this was error. They offer proof of the substantial
amount of time and work expended by them in preparing the Franklin case for trial and
contrast it to the de minumus amount they claim was expended by Waller. They claim that
under Mississippi law, an attorney whose efforts contribute to obtaining a settlement or in
enhancing a settlement is entitled to attorney fees. They also argue that Waller’s claim of
entitlement based on filing first is not determinative and ask the Court to give priority to
their contract because it was approved by the chancery court.
8 ¶17. The Court of Appeals has held that a chancellor erred in awarding all attorney fees
to an attorney who represented an illegitimate child found to be the decedent’s sole wrongful
death beneficiary and thereby denying fees to an attorney who filed the wrongful death suit,
acting in good faith and with due diligence, when the former attorney did nothing to obtain
settlement, but only represented the illegitimate child’s interest. In re Estate of Brewer, 755
So. 2d 1108 (Miss. Ct. App. 1999). “[I]t makes no sense to deprive the attorney . . . of any
compensation and instead award the full contractual fee to another attorney who did nothing
in pursuit of the claim . . . Because we find [the attorney’s] right of compensation is so clear
as a matter of law, we reverse and render on the issue.” Id. at 1115. The court directed that
the attorney’s “court sanctioned and fully performed contract be honored.” Id. Snow and
Harrell rely heavily on Brewer to support their position that an attorney who contributes to
an award should himself be awarded. Waller argues that the Brewer case is distinguishable
from the case sub judice in that only one wrongful death lawsuit was filed therein and the
attorney ultimately awarded compensation was also the attorney who initially filed the
lawsuit. However, Brewer nonetheless stands for the proposition that an attorney who
substantially contributes to a wrongful death settlement should be compensated for his time
and effort.
¶18. There is no question that Snow and Harrell performed under their contract and their
work benefitted both their clients (Heather and the estate) and Waller’s client (Jonathan) by
enhancing the settlement value of the lawsuit. Snow’s office investigated the accident by
obtaining photographs and interviewing witnesses. He sent out a 60 page settlement
9 package. He researched the types of experts needed and ultimately hired an accident
reconstruction expert and an expert on hedonic damages. Waller did not attend all of the
depositions, including that of the accident reconstruction expert. In the depositions he did
attend, Snow asked 91% of the questions and Waller asked only 9%. Snow propounded
written discovery, answered discovery and filed numerous motions to compel. He also filed
five briefs, including responses to two summary judgment motions. The only written
discovery filed by Waller was propounded to a defendant who was later dropped from the
lawsuit.4 Snow prepared and filed 89% of the plaintiffs’ pleadings while Waller’s office
filed 11%. Snow and Harrell conducted a mock trial and made a videotape on the issue of
liability for use at trial. Snow had expenses of $41,694;5 Waller’s expenses were $10,500.
¶19. Waller does not deny that Snow and Harrell did most of the work. Rather, he argues
that the amount of work done by Snow and Harrell was unnecessary because it was a “slam
dunk” case. Waller argues that
there was no benefit, direct or indirect, received from the activities of Snow and Harrell since liability was admitted and the other matters dealt primarily with attempting to elevate the case from actual damages to punitive damages. The Franklin case was settled based on actual damages claimed and the rather outrageous activities of Snow and Harrell in attempting to establish punitive damages were of no benefit to the Franklin settlement whatsoever.
4 Defense counsel Toney testified that “much more” of the paperwork was generated by Snow’s office. “[A]ll the paperwork that came in the mail, it - it came from your - your [Snow’s] place.” Other than motions opposing the daughter’s joinder in the case, Waller filed interrogatories and request for production to Jerry Hobbs, who was later dropped from the lawsuit. He answered interrogatories and requests for production for the son. He designated experts, but failed to provide expert reports. 5 Half of which were reimbursed from the Hawkins' settlement.
10 ¶20. Conversely, Snow and Harrell argue that the defendants did not admit liability until
the day before trial. Until that time, they insist, liability was vigorously contested. They
point to the testimony of defense counsel John Toney, where he admits that until the day
before trial in the Hawkins’s case, liability was vigorously contested. Since the issue of
liability was the same in Franklin as it was in Hawkins, Snow and Harrell argue this
statement demonstrates the defense’s denial of liability in Franklin. They further claim that
it was only their vigorous preparation that compelled this last second concession.
¶21. Snow and Harrell also argue that the case was not as open and shut as Waller alleges
and that a punitive damage award was not outrageous as Waller claimed, but a very real
possibility. Their investigation and discovery had revealed that punitive damages might be
available based upon the defendant’s gross negligence. Both drivers of the tractor trailers
that caused the accident which killed Franklin and Hawkins had applied for protective orders
and refused to answer discovery, presumably because of their potential personal liability.
Snow and Harrell filed motions to compel and responded to the motions for a protective
order, and were able to force the drivers to be deposed and to answer discovery. Waller
participated in none of this. Moreover, only Snow responded to and prevailed against
defendant’s motion for summary judgment with regard to punitive damages.
¶22. Witness Lance Stevens testified that if all of Snow’s time had been spent on liability
issues, the case would have indeed been overworked. However, he explained that liability
was not the only issue. He testified that there was going to be a very serious dispute as to
who among the defendants had what percentage of liability and where the punitive damages
11 would lie. Stevens further testified that the fair market value of the cases would have been
much less had the possibility of a punitive damage award not existed, and that Snow’s
expenses in the case were not unreasonable. Interestingly, after the judge in the Hawkins
case ordered that the jury could consider punitive damages, that case settled for $250,000
more than the compensatory award. Since the evidence of liability was the same in both
cases, the trial court’s decision in Hawkins regarding punitive damages illustrates that the
effort by Snow in establishing the gross negligence of the defendants was not a waste of
time. This possibility of a large punitive damages award was no doubt a factor in settlement,
and, combined with the large amount of other work contributed by Snow and Harrell,
demonstrates that the contributions of Snow and Harrell conferred a benefit upon all the
heirs in the case. As Brewer makes clear, an attorney whose efforts contribute to obtaining
a settlement or in enhancing a settlement is entitled to attorney fees.
¶23. Waller points out that the Hawkins and Franklin cases were consolidated for the
purpose of discovery and events leading up to the trial. He contends there is no way for
Snow and Harrell to separate their trial preparation for Hawkins from that of Franklin or vise
versa. Moreover, he argues, the evidence fails to address the question of whether that work
was also necessary and required to prosecute and engage in a lengthy jury trial in the
Hawkins case. Pursuant to Judge Pigott’s order, Snow and Harrell received 100% of the
attorney fees in the Hawkins case, thus, Waller argues, they have been fully compensated
for their time and effort.
12 ¶24. This argument is not well taken since Waller is requesting 100% of the fees from a
case in which it is uncontradicted that he only did 10% of the work, as well as the untenable
position that he should somehow be entitled to a portion of the fees from the Hawkins case.
In any event, Snow and Harrell received attorney fees in the Hawkins case because they had
a contract with Hawkins’s heirs. Similarly, Snow and Harrell have a contract with Heather
Franklin. Both Hawkins’s heirs and Heather Franklin chose to be represented by Snow and
Harrell; neither chose to be represented by Waller.
¶25. Nonetheless, Waller’s argument that Snow and Harrell’s work on the Franklin case
was only a result of their work on the Hawkins case has some appeal. Its force is
diminished, however, by the testimony of defense counsel John Toney. Toney testified that
the facts in the two cases were almost identical, thus most of the discovery and investigation
was necessary for both cases. However, Toney testified that in the defense’s opinion the
damages issues in the two cases were different. They believed the Franklin case was worth
more than Hawkins because a minor child was left fatherless in Franklin, and Snow’s work
on the Franklin heir’s damage claim differed from that of the Hawkins heirs.
¶26. Waller’s primary contention for entitlement to all the attorney fees is that he is
counsel of record representing all heirs, because he filed the first wrongful death lawsuit.
He argues that strict construction of the wrongful death statute, Miss. Code Ann. § 11-7-13,
is required and one suit for the same death is the focus of the legal issues before the Court,
citing Pannell v. Guess, 671 So.2d 1310 (Miss. 1996) and Smith v. Garrett, 287 So.2d 258
(Miss. 1973). He contends that the first lawsuit filed by a legal representative excludes any
13 other lawsuits regardless of the circumstances as to the second lawsuit and regardless of any
Order consolidating the second lawsuit with the first lawsuit for the purposes of trial. He
argues that the only one lawsuit provision of the wrongful death statute has been upheld
numerous times and is referred to as the rule “first in time, first in right.” See Southern Pine
Elec. Power Ass'n v. Denson, 214 Miss. 397, 57 So. 2d 589 (1952); Miss. Power & Light
Co. v. Smith, 169 Miss. 447, 153 So. 376 (1934); J.J. Newman Lumber Co. v. Scipp, 128
Miss. 322, 91 So. 11 (1922). Waller claims this rule means that the first lawsuit has
paramount right to recover all damages regardless of when or where a subsequent suit is
filed.
¶27. Snow and Harrell counter that Waller’s claim of entitlement based on first filing is
not determinative, citing Moreland v. Riley, 716 So. 2d 1057 (Miss. 1998). In Riley,
attorneys of an administratrix filed a wrongful death action. Their client was later replaced
with a more appropriate administratrix and the case went to trial, producing a substantial
award. The attorneys for the original (replaced) administratrix and those representing the
new one both claimed the attorney fees. The attorneys of the original administratrix were
unable to adduce any proof as to any work they did in the case and they were awarded
nothing. On appeal, this Court affirmed because the attorneys “failed to carry [their] burden
of proving entitlement to a fee” for work done on the wrongful death case. Riley, 716 So.
2d at 1063.
¶28. Similarly, in the case sub judice, Waller has not presented substantial evidence
illustrating that the value of his services to either Jonathan or Heather warrant 100% of the
14 attorney fees. Snow and Harrell presented to the Court that, in the depositions he did attend,
Waller only asked 9% of the questions, whereas Snow and Harrell asked 91%. Snow and
Harrell filed 83 pleadings, while Waller only filed 10. Waller did present evidence
pertaining to his involvement in the settlement of the case, alleging that he independently
settled the Franklin lawsuit. However, this assertion is not supported by the record.
Testimony revealed that both Waller and Snow were involved in settlement negotiations,
and Waller just happened to be the one that received and communicated to the court the final
settlement offer. Defense counsel Toney testified that all the defense attorneys and all the
plaintiff’s attorneys were negotiating the case until the last day before trial. Toney further
testified that the settlement would have been the same whether they had dealt with Waller
or with Snow.
¶29. Moreover, a good settlement was achieved by the foundation laid by the diligent
preparation of Snow and Harrell. Had they not been prosecuting the case, the plaintiffs
would not have been able to use the leverage of punitive damages6 and the plaintiffs would
have had no expert testimony.7 In other words, the case would not have been prepared for
trial and, consequently, would have been worth considerably less on the eve of trial. In this
6 Snow and Harrell, not Waller, responded to the defendant’s motion for summary judgment on punitive damages; Snow and Harrell, not Waller, responded to the truck drivers’s motions for protective orders, thereby securing their presence at depositions and developing a case for gross negligence. 7 Though he designated expert witnesses, Waller never presented the defense attorneys with any expert witness reports.
15 Court’s opinion, Waller did not contribute more to settlement of the case than did Snow and
Harrell.
¶30. When Judge Kitchens ordered the two Franklin cases joined, he also ordered that
Snow and Harrell participate in working up the case. In reliance on that order and the
chancery court approved contract, Snow and Harrell diligently pursued the wrongful death
case. Mississippi law is clear that an attorney who has the authority to pursue the wrongful
death case and then works the case up to a successful conclusion is entitled to a fee. In re
Estate of Brewer, 755 So.2d 1108 (Miss. Ct. App.1999) (attorney who had a court approved
contract and diligently pursued wrongful death case was entitled to his fee notwithstanding
that the administratrix he represented was not an heir and not entitled to any of the
proceeds). The attractive settlement position created by Snow and Harrell, as well as their
thorough investigation of the case and preparation for trial contributed significant benefits
upon both heirs and to award Waller all the attorney fees is to give him an undeserved
windfall.
¶31. In Pannell v. Guess, 671 So.2d 1310 (Miss. 1996), the father of the deceased hired
counsel and brought suit for the wrongful death of his son. Although there were six heirs,
the contract was signed only by the father. The other five heirs were unrepresented. After
the attorney obtained a settlement of $150,000, the chancellor ruled that the attorney was
entitled to his contingency fee only from the father’s share of the settlement. On appeal, this
Court reversed. Because the other heirs derived benefit from the attorney’s actions and the
heirs acquiesced to the amount negotiated by the attorney, this Court held the chancellor
16 should have conducted a hearing in which the attorney could prove his right to compensation
from the other heirs. Pannell, 671 So.2d at 1315. Similarly, Waller acquiesced in Snow and
Harrell’s participation in this case, and his client benefitted from this acquiescence. Though
it is true as Waller argues, that he opposed the consolidation of the cases, Waller allowed
Snow and Harrell to continue to be involved in the case. The defendants knew Snow had
diligently prepared the case for trial and was prepared to proceed to trial and verdict. They
were aware of the possibility of a high punitive damage award based on the outcome in the
Hawkins case, and Snow and Harrell have proved that their efforts in the prosecution of the
case conferred substantial benefits on all the Franklin heirs.
¶32. As in Brewer, Snow and Harrell’s contract with Heather and the estate was approved
by the chancery court before the suit was filed. Waller’s was not. Snow and Harrell ask this
Court to grant them priority based on that approval. Pannell illustrates that obtaining court
approval of contingency contracts in wrongful death cases is the preferred procedure. 671
So. 2d at 1315. However, as Waller points out, the wrongful death statute does not require
the plaintiff to obtain authorization to bring a lawsuit. In addition, the statute plainly states
that the estate is not a part of the wrongful death claim, except for funeral, medical, and
other related expenses. Therefore, Snow and Harrell’s approved contingency contract,
though the preferred procedure, gives them no priority in this dispute. In any event, this
issue is really a non-issue in that Snow and Harrell are entitled to compensation based upon
their contribution to the case and their justifiable reliance on Judge Kitchens’s November
1999 order.
17 II. WHETHER THERE WAS AN IMPLIED CONTRACT BETWEEN WALLER AND SNOW AND HARRELL FOR THE PAYMENT OF ATTORNEY FEES.
¶33. Snow and Harrell’s next argument for reversal is that after the November 1999 order
was entered allowing them to participate in the lawsuit, Waller’s acquiescence in the
arrangement by allowing them to assume the majority of the work in getting the case
prepared for trial created an implied contract.
¶34. When a party accepts and uses the services of an attorney knowing that compensation
is expected, a contract will be implied for the payment of attorneys fees. See, e.g., In re
Estate of Stewart, 732 So. 2d 255, 259 (Miss. 1999); West Ctr. Apartments Ltd. v. Keyes,
371 So. 2d 854, 858 (Miss. 1979); Collins v. Schneider, 187 Miss. 1, 192 So. 20, 23 (1939);
Jones Bayou Drainage Dist. v. Sillers, Clark & Sillers, 129 Miss. 13, 91 So. 693, 694
(1922). A contract that arises from the conduct of the parties, also known as a contract
implied in fact, has the same legal effect as an express contract. It carries as much weight
as, and is as binding as an express contract. Magnolia Fed. Sav. & Loan Ass'n v. Randal
Craft Realty Co., 342 So.2d 1308, 1312 (Miss. 1977); Ahern v. South Buffalo Ry., 104
N.E.2d 898 (N.Y. 1952), aff’d, 344 U.S.367, 735. Ct. 340, 97 L. Ed. 395 (1953);
Restatement (Second) of Contracts § § 4 cmt.
¶35. In Old Men’s Home, Inc. v. Lee’s Estate, 191 Miss. 669, 4 So.2d 235, 236 (1941),
this Court pointed out that a quasi or constructive contract rests on the equitable principle
that a person shall not be allowed to enrich himself at the expense of another. It is an
obligation created by law, in the absence of an agreement, when and because the acts of the
18 parties or others have placed in the possession of one person money under circumstances
that in equity and good conscience he ought not to retain and which in justice and fairness
belong to another. Furthermore, in Cooke v. Adams, 183 So. 2d 925 (Miss. 1966), this
Court held that any conduct of one party from which the other party may draw the inference
of a promise is effective as such and the conduct of the parties is viewed as a reasonable man
would to determine the existence or not of the contract implied in fact. To collect under an
unjust enrichment or quasi-contract theory, the claimant must show “there is no legal
contract but . . . the person sought to be charged is in possession of money or property which
in good conscience and justice he should not retain, but should deliver to another.” Estate
of Johnson v. Adkins, 513 So.2d 922, 926 (Miss. 1987) (quoting Hans v. Hans, 482 So.2d
1117, 1122 (Miss. 1986)).
¶36. Waller objected to Judge Kitchens’s November 1999 order allowing Snow and
Harrell to participate, and subsequently asked the court to reconsider. However, he took no
further steps to voice his disapproval until it was time to split the attorney fees. Had Waller
wanted to preserve his objection to Snow and Harrell’s participation and avoid the
appearance of acquiescence, he should have advised Snow, Harrell, and Judge Kitchens that
at the end of the case he would again dispute any claim for attorney fees and, more
importantly, he should have undertaken to prepare the case for trial. However, as the
previous discussion makes clear, Waller allowed Snow to do virtually all of the work. One
cannot knowingly accept the services of an attorney and object for the first time when the
bill comes due. Stoner v. Yandell, 188 So. 564 (Miss. 1939). Waller knew that Snow and
19 Harrell did the work expecting to be paid when the recovery was received. Under these
circumstances, the law will imply a contract.
III. WHETHER JUDGE PIGOTT ERRED IN VACATING THE NOVEMBER 1999 ORDER OF JUDGE KITCHENS AFTER SNOW AND HARRELL RELIED ON IT IN PREPARING THE CASE FOR TRIAL.
¶37. Under Circuit Court Procedural Rules, any order signed during the course of the
proceeding is not final and can be changed during the course of the action and prior to a
final judgment. Final judgment was entered by the circuit court on April 23, 2001; however,
the court retained jurisdiction “to the extent required to resolve the pending issues relating
to the apportionment of attorney fees and expenses among the various counsel for
plaintiffs.” Therefore, as Judge Kitchens’s November 1999 order was not final or
dispositive, it was subject to change by Judge Pigott, who had the authority and duty to
change or rescind any orders as required by the law and facts.
¶38. Judge Pigott held that while Heather had a right to join in the lawsuit filed by
Jonathan, the control of the suit was in the hands of Jonathan and his attorneys since his suit
was filed first. He held that since all heirs-at-law interests were represented in this one
lawsuit, only one attorney’s fee was payable out of the recovery. Judge Pigott also ruled,
“The Circuit Court had no authority to order attorneys Snow and Harrell into the Franklin
case and no authority to adjudicate the division of attorney’s fees prospectively before
recovery. Circuit Courts should not interject attorneys into another attorney’s cases and
require a division of fees.”
20 ¶39. Judge Kitchens’s November 1999 order consolidated the wrongful death cases of
Jonathan and Heather (and the estate) and declared that the lawyers would handle the case
as co-counsel and receive compensation based upon their contracts with their respective
clients. This order did not divide attorney fees, as Judge Pigott held, rather it merely
followed the wrongful death statute by stating that any recovery would be divided equally
among the two heirs. The November 1999 order recognized the statutory requirement of
equal distribution among the heirs; it left the compensation of the attorneys to their
respective employment contracts.
¶40. Snow and Harrell argue that Judge Pigott’s vacating Judge Kitchens’s November
1999 order was in error because Judge Kitchens’s prior order was proper and reasonable.
They argue the prior order: (1) protected the interest of both clients by allowing the lawyer
of their choice to represent their interest; (2) it was fair to both sides because it gave the
benefit of their respective contracts and gave a clear statement of the basis for each lawyer’s
ultimate compensation; (3) it was reasonable; (4) it followed the wrongful death statute
regarding joinder; and (5) it contemplated that all attorneys would work together for the
mutual benefit of their respective client. This Court agrees.
¶41. The lawyers justifiably relied upon this order for over a year and a half as they
prepared the case for trial. Judge Kitchens’s November 1999 order was well within his
discretion. The wrongful death statute, Miss. Code Ann. § 11-7-13, states that “all parties
interested may join the suit.” Allen v. Baker, 327 F. Supp. 706, 709 (N.D. Miss. 1968).
Judge Kitchens had the authority to consolidate the two cases. Mobile Jackson & Kansas
21 City R.R. v. Hicks, 91 Miss. 273, 46 So. 360, 397 (1908) (nothing improper in consolidating
wrongful death suit brought by widow with that brought by widow and children). See also
Classic Coach, Inc. v. Johnson, 823 So.2d 517 (Miss. 2002); Robinson v. Cobb, 763 So.
2d 883 (Miss. 2000). The parties disagreement is not with Judge Kitchens’s authority to
consolidate the two cases, but lies ultimately in his allowing Snow and Harrell to participate
in the joined action and his apportionment of the attorney fees according to each attorney’s
contract with their respective client.
¶42. The wrongful death statute does not by its express terms limit the case to one lawyer
or otherwise limit each heir’s choice of her own counsel. This Court has interpreted the
statute to mandate that the wrongful death heir who first files a wrongful death claim is
entitled to prosecute that claim to its conclusion. Thornton v. Ins. Co. of N. Am., 287 So.
2d 262, 265 (Miss. 1973). Cf. J.J. Newman Lumber Co. v. Scipp, 128 Miss. 322, 91 So.
11 (1922) (abating suit by widow after suit by administratrix); Mobile Jackson & Kansas
City Railroad Co. v. Hicks, 91 Miss. 273, 46 So. 360 (1908), aff’d, 219 U.S. 35, 31 S.Ct.
136, 55 L.Ed. 78 (1910). However, we have found no authority for the proposition that the
statute does not allow heirs to be individually represented by counsel of their choice. Judge
Kitchens’s order did not “interject attorneys into other attorney’s cases” as Judge Pigott held,
rather it simply recognized that already established relationship. The representation of
Heather by Snow and Harrell simply came with the joined case.
¶43. Following Judge Kitchens’s order, Snow and Harrell expended substantial time and
labor preparing the case for trial. They were obligated both by ethical and contractual
22 obligations to their client and by Judge Kitchens’s order to diligently and zealously represent
their client’s interest and prepare for trial. Judge Kitchens’s order promoted certainty by
setting both the scope and limit of recovery of attorney fees at the outset. It enabled all
parties’ reasonable expectations to be realized. The attorneys’ recovery was based upon
their performance and the strength of their case and the client’s choice of attorney to
represent them was respected.
¶44. On the other hand, Judge Pigott’s ruling that fees can only be determined at the end
in effect reverses not only the November 1999 order but also the chancery court’s order that
approved the contingency contract at the outset. Judge Pigott did not have the benefit of any
new information that justified vacating Judge Kitchens’s order. In fact, the information
before Judge Pigott, that Snow and Harrell had done 90% of the work, justified upholding
rather than vacating Judge Kitchens’s order.
¶45. Judge Pigott’s order creates a dilemma for lawyers involved in wrongful death cases.
They are contractually and ethically bound to diligently pursue their client’s claims but are
left not knowing if they will be paid for their effort if their client was not the first to file.
Judge Pigott’s order not only reaches an inequitable result; it penalizes heirs who want their
own lawyer to represent them and are willing to pay them from their own recovery.8
8 Moreover, Judge Pigott’s order creates the potential for a serious conflict of interest. Where, as here, the attorneys dispute the paternity of the heirs, combining the case and requiring the first attorney who filed to thereafter represent all of the heirs puts that attorney in an awkward position. Does she continue to press the paternity issue for the benefit of her initial client, or does she drop that inquiry and now zealously represent both her initial client and her new client, whom she suspects may not be a legitimate heir?
23 IV. WHETHER WALLER CAN BE AWARDED ATTORNEY FEES FROM HEATHER FRANKLIN, DESPITE THE FACT THAT HE HAD NO CONTRACT WITH HER.
¶46. In their fourth assertion of error, Snow and Harrell argue that Waller is not entitled
to attorney fees from Heather because he had no contract with her. Precedent has
established that an attorney who does work that enhances the value of a settlement should
be paid for his efforts, even in the absence of a contract, and one who does nothing should
not be given a windfall, even if a contract exists. Pannell v. Guess, 671 So.2d 1310 (Miss.
1996). In re Estate of Brewer, 755 So.2d 1108 (Miss. Ct. App.1999). Moreover, in
Pannell this Court held that an attorney who brings a wrongful death suit but has a contract
with only one of the heirs does not bind the other heirs with whom he does not have a
contract. This Court went on to concede that the lawyer under contract with one of the heirs
may nevertheless be entitled to compensation from the other heirs if they derived a benefit
from the services. This Court remanded that case and instructed the chancellor to revisit the
issue of attorneys fees and award only what was reasonable under the circumstances. “[I]f
he should find that the contingency fee was not reasonable, then he may assess a fee based
on quantum meruit.” Pannell v. Guess, 671 So.2d at 1315. It follows from Pannell that an
attorney who successfully prosecutes a wrongful death claim without representing all of the
heirs must prove that he has earned a fee from the proceeds distributed to all of the heirs.
¶47. The efforts of Snow and Harrell on behalf of all the wrongful death beneficiaries are
uncontradicted. The fees sought by them are only those to which they are entitled under the
court approved contract with Heather Franklin. Snow and Harrell would be entitled to
24 compensation even absent the Chancellor approved contingency contract and Judge
Kitchens’s order, since they have established their entitlement on quantum meruit grounds.
¶48. In contrast, Waller had no contract with Heather Franklin and he did not put on any
proof, at the trial level, in his brief, or during oral argument to establish that he is entitled
to fees from the daughter based upon any work done on her behalf. He has made no
quantum meruit showing. He has only relied on having been the first attorney to file a
wrongful death suit. Pannell teaches that this is not enough.
CONCLUSION
¶49. Judge Pigott erred by vacating Judge Kitchens’s November 1999 order. Judge
Kitchens’s joinder of Jonathan and Heather Franklin’s lawsuits was within his authority and
was proper under the wrongful death statute’s mandate that there can be only one lawsuit
based upon a wrongful death. Allowing Heather (and the estate) to retain the attorneys she
chose was not at odds with the statute’s mandate. There was still only one lawsuit. Nothing
in the statute prohibits parties in a wrongful death action from being represented by the
counsel of their choice.
¶50. For these reasons, Judge Pigott’s order is reversed and Judge Kitchens’s 1999 order
reinstated.
¶51. REVERSED AND RENDERED. APPELLEE, BILL WALLER, SR., SHALL DEPOSIT THE SUM OF $430,000.00 INTO THE REGISTRY OF THE CIRCUIT COURT OF RANKIN COUNTY, MISSISSIPPI, WITHIN 10 DAYS OF THE DATE OF THIS MANDATE, AND, UPON RECEIPT OF THOSE FUNDS, THE CIRCUIT CLERK OF RANKIN COUNTY SHALL PROMPTLY DISBURSE THOSE FUNDS TO APPELLANTS FRED HARRELL, JR. AND PAUL SNOW.
25 PITTMAN, C.J., McRAE AND SMITH, P.JJ., COBB, EASLEY, CARLSON AND GRAVES, JJ., CONCUR. WALLER, J., NOT PARTICIPATING.