In the Matter of the E.M. Rush Trust; Mary Jane Rush Lennon, Stacy Lennon, Julie E. Lennon, Estate of Perry Rush Lennon, Robert R. Lennon, Jr. and Dana R. Schilling v. Lowrey & Fortner, P.A.

• Court: Court of Appeals of Mississippi
• Decided: June 7, 2022
• Docket: 2021-CA-00426-COA
• Status: Published

Opinion

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2021-CA-00426-COA

IN THE MATTER OF THE E.M. RUSH TRUST; APPELLANTS MARY JANE RUSH LENNON, STACY LENNON, JULIE E.LENNON, ESTATE OF PERRY RUSH LENNON, ROBERT R. LENNON, JR. AND DANA R. SCHILLING

v.

LOWREY & FORTNER, P.A. APPELLEE

DATE OF JUDGMENT: 03/23/2021 TRIAL JUDGE: HON. MICHAEL CHADWICK SMITH COURT FROM WHICH APPEALED FORREST COUNTY CHANCERY COURT ATTORNEY FOR APPELLANTS: S. WAYNE EASTERLING ATTORNEY FOR APPELLEE: RICHARD ANTHONY FILCE NATURE OF THE CASE: CIVIL - WILLS, TRUSTS, AND ESTATES DISPOSITION: APPEAL DISMISSED - 06/07/2022 MOTION FOR REHEARING FILED: MANDATE ISSUED:

BEFORE CARLTON, P.J., LAWRENCE AND McCARTY, JJ.

LAWRENCE, J., FOR THE COURT:

¶1. On September 12, 2019, Lowrey and Fortner, P.A. (Lowrey) filed a motion to

terminate the E.M. Rush Trust on behalf of its clients Mary Jane Rush Lennon, Stacy

Lennon, Julie E. Lennon, the Estate of Perry Rush Lennon, Robert R. Lennon Jr., and Dana

R. Schilling (collectively Lennon). On January 7, 2020, a hearing was held, and the trial

court granted the motion to terminate the trust. On May 21, 2020, Lennon emailed Lowrey

and informed Lowrey of their desire to terminate representation. On May 22, 2020, Lowrey

filed a motion to “Withdraw as Counsel and Authorize Trustee to Distribute Attorney Fees Upon Closing of the Trust.”

¶2. On June 1, 2020, a hearing was held on Lowrey’s motion. The trial court granted

Lowrey’s motion to withdraw and ordered the trustee to “distribute $12,589.04 to [Lowrey]”

upon termination of the trust. On June 9, 2020, Lennon filed a motion to “Alter or Amend

Order for Award of Disputed Attorney Fees.” A hearing was held to address the motion, and

on October 1, 2020, the trial court issued an order reaffirming its award of attorney’s fees to

Lowrey. On March 23, 2021, the E.M. Rush Trust was terminated. On April 20, 2021,

Lennon appealed and argued that the trial court erred in authorizing the trust to distribute

attorney fees to Lowrey because (1) the Trust’s spendthrift clause prohibited the trial court

from awarding attorney’s fees; (2) the trial court lacked subject matter jurisdiction; and (3)

Lennon’s new counsel did not receive notice of Lowrey’s fee request or the hearing on the

fee request. During this appeal, Lowrey filed a “Motion to Docket and Dismiss Appeal” for

lack of jurisdiction. Lowrey argued, among other things, that Lennon failed to file a notice

of appeal within thirty days of the order granting attorney’s fees. Finding the motion is well

taken, it is granted and this appeal is dismissed for lack of jurisdiction.

FACTS

¶3. The E.M. Rush Trust was established on March 26, 1964. Trustmark National Bank

(Trustmark) had served as the trustee since its establishment. On July 2, 2018, Trustmark

filed a petition for modification of the E.M. Rush Trust. Trustmark sent notice to all

beneficiaries, informing them of its request to increase its fees as the trustee.1 Lennon hired

1 When this motion was filed, the E.M. Rush Trust had almost fifty beneficiaries.

2 Lowrey to represent them during the court proceedings concerning an increase of

Trustmark’s fees. On June 24, 2019, Trustmark filed a motion to resign as trustee of the

E.M. Rush Trust, and it requested that the trial court appoint a new trustee. The trial court

granted this motion and ordered that Trustmark’s resignation would be effective in ninety

days allowing the court time to determine whether to appoint a new trustee or terminate the

trust.

¶4. On September 12, 2019, Lowrey filed a motion on behalf of Lennon to terminate the

trust and distribute the trust assets.2 On January 7, 2020, the trial court held a hearing. At

the hearing, the trial court determined that termination of the trust was appropriate. On May

21, 2020, Lennon emailed Lowrey, informing it that its services were no longer wanted.

¶5. On May 22, 2020, Lowrey filed a motion to “Withdraw as Counsel and Authorize

Trustee to Distribute Attorney Fees upon Closing of Trust.” On June 1, 2020, the trial court

held a hearing on the matter. That same day, the trial court issued an “Order Granting

Motion for Withdrawal as Counsel and for Distribution of Attorney Fees Upon Closing of

the Trust.” In that order, the trial court ruled that upon closing of the E.M. Rush Trust, the

trustee “is authorized and directed to distribute $12,589.04 to Lowrey & Fortner P.A.”

¶6. On June 9, 2020, Lennon filed a motion to “Alter or Amend Order for Award of

Disputed Attorney Fees.” In the motion, Lennon stated that they disputed the fees, the fees

2 Lowrey stated in its brief that it “undertook to complete service of process on all of the beneficiaries as required by law.” Twenty-nine beneficiaries signed “waivers and joinders.” Seven beneficiaries were personally served, two beneficiaries “completed a notice of acknowledgment of service by mail,” and five beneficiaries were served by publication because they could not be found. Lowrey also “published service on any and all unknown heirs or beneficiaries of the trust . . . .”

3 were unreasonable, no proper notice was provided, the court did not have authority to award

the fees, and the spendthrift clause in the trust prohibited the distribution of the fees. A

hearing was held to address the motion. On October 1, 2020, the trial court found that its

initial award of attorney’s fees was proper. The trial court stated that all parties had proper

notice, no objections were made to the award of fees, it had authority to award attorney’s fees

in trust litigation, and the fees were reasonable.

¶7. On March 23, 2021, the trial court issued a final judgment terminating the trust. The

judgment required the trustee to “distribute the trust assets to the respective beneficiaries . . .

the sum of $58,750.00 . . . .” The $12,589.04 owed to Lowrey was not mentioned in the final

judgment.

¶8. On April 20, 2021, Lennon filed their appeal, arguing that the trial court erred in

authorizing the trustee to distribute attorney’s fees to Lowrey in the June 1, 2020 order

because: (1) the Trust’s spendthrift clause prohibited the trial court from awarding attorney’s

fees; (2) the trial court lacked subject matter jurisdiction; and (3) Lennon’s new counsel did

not receive notice of the Lowrey’s fee request or the hearing on the fee request.

¶9. On October 8, 2021, Lowrey filed a “Motion to Docket and Dismiss Appeal.” In the

motion, Lowrey argued three reasons why the appeal should be dismissed. First, Lennon

should have filed a motion for interlocutory relief under Mississippi Rule of Appellate

Procedure 5 by October 22, 2020, within twenty-one days of the October 1, 2020 order.

Second, Lowrey argues that instead of seeking interlocutory relief, Lennon “could have

requested certification as a final judgment for immediate appeal.” Third, Lowrey argued that

4 pursuant to Mississippi Rule of Appellate Procedure 4(a), Lennon should have filed the

notice of appeal “within [thirty] days after [entry of] the . . . order appealed from.” In

essence, Lowrey argues that Lennon’s appeal should be dismissed for lack of jurisdiction.

Upon review of the record, we find that the motion to dismiss is well taken and granted.

Therefore, this appeal is dismissed for lack of jurisdiction.

ANALYSIS

¶10. On June 1, 2020, the trial court held a hearing on Lowrey’s motion to “Withdraw as

Counsel and Authorize Trustee to Distribute Attorney Fees Upon Closing of Trust.” That

same day, the trial court issued an order granting Lowrey’s motion to withdraw and ordering

the E.M. Rush Trust’s trustee to pay Lowrey $12,589.04 “[u]pon closing of the Trust . . . .”

On June 9, 2020, Lennon filed a motion to “Alter or Amend Order for Award of Disputed

Attorney Fees.” On October 1, 2020, after a hearing on Lennon’s motion, the trial court

issued an order finding his initial award of attorney’s fees upon termination of the trust to be

proper. Lennon filed their notice of appeal on April 20, 2021, after the thirty-day period

proscribed by Mississippi Rule of Appellate Procedure 4(a).

¶11. The threshold question this Court must answer is whether we have jurisdiction to hear

Lennon’s appeal concerning the orders from June 1, 2020, and October 1, 2020, awarding

Lennon attorney’s fees upon termination of the E.M. Rush Trust. There is no caselaw

directly on point. However, there are two cases that prove instructive and are analogous to

the present case: In re Estate of Pavlou, 308 So. 3d 1284 (Miss. 2021), and In re Estate of

Philyaw, 514 So. 2d 1232 (Miss. 1987). Both of these cases explain that an appeal made

5 from an order during the administration of an estate that is still open should be filed within

thirty days of that order, not upon the estate being finally closed.

¶12. In Philyaw, Jeff Oren Philyaw died testate on April 4, 1981, and in his will, he devised

his estate to Gladys Marie Braxton. In re Est. of Philyaw, 514 So. 3d at 1233. Braxton was

also appointed as the executrix of the estate. Id. On July 11, 1981, Jeryl Johnson filed a

claim against the estate for $37,371.90, stating that she had signed a promissory note as an

“accommodation endorser” for Philyaw for $20,000 to Merchants National Bank of

Vicksburg. Id. A hearing was held on Johnson’s claim, and on November 8, 1982, the trial

court issued a final decree, ordering Braxton to pay Johnson from the estate’s assets. Id. at

1234. Braxton did not file an appeal from this decree. Id. Johnson was also never paid. Id.

¶13. On July 12, 1983, Johnson petitioned the trial court to appoint her as the Philyaw

estate’s executrix because Braxton had died. Id. On December 15, 1983, Johnson informed

the trial court that she had hired legal counsel to collect the claim against the Braxton estate

“to satisfy Johnson’s individual claim for $40,750.32 as of November 8, 1982.” Id. Johnson

was appointed as administratrix, and on May 29, 1984, Johnson filed her accounting of the

estate, and reported that the estate had a cash balance of $8,590.19. Id. On June 27, 1984,

a hearing was held to determine whether Johnson’s final accounting should be approved and

to fix a reasonable fee for her work as administratrix. Id. Braxton’s children attended the

hearing, and Daryll Braxton, filed a motion for the court to “reconsider the allowance of the

Johnson claim against the Philyaw estate.” Id. On July 11, 1984, the trial court denied this

motion. Id. at 1236. Daryll Braxton appealed. Id.

6 ¶14. On appeal, the Mississippi Supreme Court had to determine “whether the time for an

appeal for an administrator or executor unhappy with a decree allowing a contested claim

runs from the date of such decree or from the date of the decree finally closing the estate.”

Id. at 1236. The supreme court held that “the time for any appeal from a chancellor’s

decision on the claim started on the date of the decree allowing it.” Id.

¶15. The supreme court noted that there “appears” to be a history of appeals that

administrators or executors dissatisfied with decrees for contested claims have taken after

the decree was issued and not at the closing of an estate. Id. The court also explained that

the “time for an appeal should run from the date of the decree on the claim” and provided the

following explanation:

The efficient and orderly administration of estates and payment of all just debts without unjustified delay compels our conclusion. To permit an administrator to wait until an estate is otherwise ready for closing before deciding whether or not to appeal a decree allowing a claim would countenance outrageous postponements in paying the indebtednesses due by the estate. Moreover, an administrator cannot close an estate until there has been a final adjudication as to precisely what debtors are due by the estate, which he has a duty to pay. Id. at 1237.

¶16. In Pavlou, the Mississippi Supreme Court had to answer a similar question. Kenneth

Rogers sued Costas Pavlou for breach of contract in county court. In re Est. of Pavlou, 308

So. 3d at 1285 (¶3). However, during litigation, Pavlou died. Id. at 1286 (¶3). Pavlou’s

estate became a party to the breach-of-contract case. Id. The attorneys representing the

estate in the breach-of-contract lawsuit also became counsel for the administration of the

estate. Id. Rogers’s claims against the estate were ultimately dismissed, and he appealed to

circuit court. Id at (¶4). After the lawsuit ended, the executor of the estate filed a “Petition

7 for Authority to Disburse Funds to Pay Outstanding Attorney and Accountant Fees.” Id. at

(¶5). Rogers filed a response to the petition, opposing the payment of attorney’s fees because

they were incurred during the breach-of-contract lawsuit and not during the administration

of the estate. Id. at (¶6). Rogers also stated that granting the payment of attorney’s fees

would make the Pavlou estate insolvent. Id. The trial court granted the “Petition for

Authority to Disburse Funds to Pay Outstanding Attorney and Accountant Fees.” Id. at (¶7).

Rogers appealed. Id. at 1287 (¶8).

¶17. The supreme court reviewed whether it had jurisdiction over the appeal after the

chancellor granted the executor’s motion to disburse funds while the estate was still open.

Id. at 1287 (¶9). At the time, the chancellor’s order granting the motion had been issued, but

there was no final judgment closing the estate. Id. The court noted that “generally, only final

judgments are appealable.” Id. However, the court noted that “an order that finally resolves

a claim against an estate is final and appealable although the estate remains open.” Id. at

1288 (¶12). The Mississippi Supreme Court also explained that the Mississippi Court of

Appeals “has exercised jurisdiction over timely appeals from orders that finally determined

probate claims although the estates remained open.” Id. at (¶13); see In re Est. of Holmes,

188 So. 3d 1229, 1232 n.3 (Miss. Ct. App. 2015) (“[B]oth the Mississippi Supreme Court

and this court have exercised appellate jurisdiction over timely appeals from orders either

allowing or disallowing claims against still-open estates.”); In re Est. of King, 303 So. 3d

423, 425 (¶8) (Miss. Ct. App. 2020) (“[T]he Supreme Court and this Court have specifically

held that a judgment allowing or disallowing a creditor’s claim against an estate is final and

8 appealable.”). The court ultimately concluded that “based on Philyaw and its progeny, the

order granting the disbursement of attorney fees and denying Rogers’s objection to the

disbursement qualified as a final, appealable judgment.” Id.

¶18. The analysis in Philyaw and Pavlou and this Court’s precedent lead us to conclude

that the trial court’s October 1, 2020 order was final for purposes of appeal. The Mississippi

Supreme Court and this Court have held that an order resolving a claim against an estate is

“final and appealable although the estate remains open.” See Pavlou, 308 So. 3d at 1288

(¶12); see also In re Est. of Holmes, 188 So. 3d at 1232 n.3; In re Est. of King, 303 So. 3d

at 425 (¶8). This same reasoning can be applied to the trial court’s order in this case, which

was a final order regarding attorney’s fees, even though the trust remained open. In the

present case, the order authorizing the E.M. Rush Trust to pay attorney’s fees to Lowrey

upon termination of the trust “finally resolve[d]” Lowry’s claim. See Pavlou, 308 So. 3d at

1288 (¶12). After October 1, 2020, Lowrey was no longer involved in decisions concerning

the administration or termination of the E.M. Rush Trust. Therefore, “the time for any appeal

from [the] chancellor’s decision” on Lowrey’s claim “started on the date of the decree

allowing it.” See Philyaw, 514 So. 2d at 1236.

¶19. The proper time for Lennon to bring this appeal was within thirty days of the trial

court’s October 1, 2020 order adjudicating the claim for attorney’s fees against the trust. See

M.R.A.P. 4(a). Mississippi Rule of Procedure 4(a) is clear from its mandate that a notice of

appeal must be filed within “within 30 days after the date of entry of the judgment or order

appealed from.” M.R.A.P. 4(a) (emphasis added). Further, the supreme court and this Court

9 have been equally clear that the notice of appeal is a jurisdictional prerequisite to invoke

appellate review. See Calvert v. Griggs, 992 So. 2d 627, 631 (¶9) (Miss. 2008); McChester

v. McChester, 300 So. 3d 1035, 1038 (¶13) (Miss. Ct. App. 2020). Because Lennon failed

to perfect their appeal in compliance with Rule 4 of the Mississippi Rules of Appellate

Procedure, this Court does not have jurisdiction, and this appeal is dismissed.

¶20. APPEAL DISMISSED.

BARNES, C.J., CARLTON AND WILSON, P.JJ., GREENLEE, WESTBROOKS, McDONALD, McCARTY, SMITH AND EMFINGER, JJ., CONCUR.