Borries v. Murphy

• Decision Date: 03 June 2021
• Docket Number: NO. 2019-CA-01840-SCT,2019-CA-01840-SCT
• Parties: Kenneth R. BORRIES v. Malcolm MURPHY a/k/a A. Malcolm Murphy
• Court: Mississippi Supreme Court

324 So.3d 261

Kenneth R. BORRIES

v.Malcolm MURPHY a/k/a A. Malcolm Murphy

NO. 2019-CA-01840-SCT

Supreme Court of Mississippi.

June 3, 2021

ATTORNEY FOR APPELLANT: VINCENT J. CASTIGLIOLA, JR., Pascagoula

ATTORNEY FOR APPELLEE: ROBERT PAYNE SHEPARD

BEFORE KING, P.J., CHAMBERLIN AND ISHEE, JJ.

KING, PRESIDING JUSTICE, FOR THE COURT:

¶1. Malcolm Murphy, an attorney, requested that his client, Kenneth R. Borries, sign three promissory notes for legal services rendered. After Borries failed to pay the notes, Murphy filed suit. Borries now appeals from the trial court's grant of summary judgment in favor of Murphy. Because Borries did not deny voluntarily signing the promissory notes and because the notes contained clear and unambiguous terms, we affirm the trial court's grant of summary judgment in favor of Murphy.

FACTS AND PROCEDURAL HISTORY

¶2. Murphy is a licensed Mississippi attorney with a practice in Lucedale. Beginning in 2004, Borries hired Murphy to represent him in a number of legal matters. Murphy continued to perform legal work for Borries for approximately nine years. Between March 21, 2005, and June 9, 2011, Borries wrote Murphy twelve checks totaling $58,620. Borries additionally asserts that he paid Murphy $2,500 in cash during that time period.¹

¶3. On September 11, 2012, Murphy requested that Borries sign a promissory note for services rendered. Borries signed the note in the principal amount of $30,000, with an interest rate of 4 percent per annum from maturity on the balance of the unpaid principal. The principal and interest were due in twelve months. The note additionally contained a provision stating, "[i]n the event of such default, if the note is placed in the hand of any attorney for collection, an additional amount of 10% shall be added to the remaining unpaid principal as attorney's fees." The bottom of the note stated in handwriting, "balance due on Aiden/Cecilia case."

¶4. On October 1, 2013, Borries signed a second promissory note in the amount of $2,500, with a 5 percent interest rate per annum. The second note stated, "[i]n the event of default, if this note is placed in the hands of an attorney for collection, a[n] additional amount of 40% shall be added to the remaining unpaid principal as attorney's fees." The note stated that it was for "value received, (BAY SOUTH)." That same day, Borries signed a third promissory note, also for $2,500, for "value received, (DAVID ROW)" with the same 5 percent interest rate per annum and the same 40 percent provision were the note placed in the hands of an attorney.

¶5. Murphy asserted that he requested that Borries sign the promissory notes because Borries had been short on cash and needed the credit. He alleged that the notes were for "time spent, professional services rendered and expenses incurred." Murphy stated that the promissory notes represented the balance due on the Aiden/Cecilia matters and two other pending suits (Bay South & David) as noted on the notes. The Aiden/Cecilia matters encompassed three causes of action: (1) Kenny Borries v. Cecilia Eubanks Borries , No. 1999-3258RP (Jackson Cnty. Ch. Ct.); (2) Allstate Indemnity Company v. Estate of Dane Richard Eubanks and Cecilia Eubanks , No. 407.1:08cv1464 (S.D. Miss); and (3) Kenny Borries v. Cecilia Eubanks , No. 2010-00009 (Jackson Cnty. Cir. Ct). The Bay South promissory note was for services rendered for litigation in the matter of Kenneth R. Borries v. Bay South Limited, Inc. , No. A2401-13-154 (Harrison Cnty. Cir. Ct.). Lastly, the David promissory note was for attorney's fees in connection with Kenneth R. Borries v. Monte Joel David, et al. , No. 2012-0293 (George Cnty. Ch. Ct.).

¶6. Borries failed to make payments on the promissory notes. On February 24, 2015, Murphy filed a complaint against Borries, seeking judgment on all three notes. In response, Borries filed an answer, counterclaim, and request for declaratory judgment. He asked the trial court to dismiss Murphy's complaint and to determine the amount of reasonable attorney's fees owed based on time spent.

¶7. Borries did not deny voluntarily signing the three promissory notes but asserted that the notes "should be considered documentation of agreed retainers for legal fees to be determined and charged based upon attorney time billed at a reasonable hourly rate." Borries claimed that the notes did not represent the actual amount owed. Instead, he argued that Murphy had represented that he would calculate the attorney's fees owed and that Borries would be obligated to pay that fee less any payments already made by Borries. Borries stated that he had been waiting for an accounting of legal fees and payments previously made and that Murphy had not provided Borries with any detailed or itemized bills indicating his time spent.

¶8. In Murphy's responses to requests for production and interrogatories, he stated that only one formal contract had existed between the two parties for a BP oil-spill claim. Murphy attached a contingent-fee contract that Borries had signed on March 8, 2012, to employ the legal services of Denham Law Firm, PLLC, to represent him in connection with his claim against BP America, Inc., etc. Also attached was a document labeled "Agreement" that stated,

It is agreed that the undersigned will jointly represent Kenneth R. Borries, individually and as d/b/a Tucies [sic] Fishing Camp, regarding all losses sustained as a result of the BP Oil spill, the responsible parties being identified in a Contingent Fee Contract signed by Kenneth R. Borries dated March 8, 2012.

The agreement provided that the attorneys’ fees should be equally divided between Denham Law Firm and Murphy.²

¶9. Also in response to discovery requests, Murphy provided an itemized time sheet for the three matters encompassing the Aiden/Cecilia promissory note. The total time spent on the Kenny Borries v. Cecilia Borries Jackson County Chancery Court case was listed as 226 hours and fifteen minutes. Per the time sheet, the work on the chancery-court matter began on March 10, 2007, and ended on January 20, 2012. On the circuit-court case, Kenny Borries v. Cecilia Borries , Murphy provided a time sheet with the total time spent listed as thirteen hours and thirty minutes. The work on the circuit-court case began on January 12, 2010, and ended on June 14, 2011. The Allstate v. Estate of Dane Eubanks United States District Court case listed twenty-four total hours spent, from August 27, 2009, to May 6, 2010.

¶10. Additionally, Murphy provided a list of matters for which he had represented Borries, with a total of twenty-five matters listed. The document also contained a list of "missing notes" that showed five items. The document stated that the list was not inclusive and that Murphy could not remember all of the matters he had worked on for Borries because "no files were made on many questions and answers."

¶11. Also produced in discovery was a letter Murphy wrote to Borries dated October 5, 2007, which stated that an itemized statement of time and expenses was enclosed regarding the matter of Deborah Smith Gibson v. Kenneth R. Borries .³ The letter read that the "statement, less $3,000.00 advance, amounts to $19,368.50." The attached statement showed a bill for 147.25 hours at a rate of $150 per hour for a total of $22,087.50. The time spent on the Gibson matter started on September 4, 2004, and ended on October 4, 2007. This was the only invoice Murphy prepared throughout the parties’ attorney-client relationship. Borries asserted that the invoice was never sent to him.

¶12. On August 23, 2017, Murphy filed a motion for summary judgment and argued that, because Borries admitted signing the promissory notes and admittedly had not paid the notes, no genuine issue of material fact remained, and Murphy was entitled to judgment as a matter of law.

¶13. In opposition, Borries submitted an affidavit stating that,

Based on what Malcolm told me as my lawyer, this note was not a promissory note like the papers you sign when you borrow money from the bank. Malcolm was my lawyer and a friend, he said he just needed something signed by me for his records, I didn't question him and believed him when he said the amount of the note was the correct amount of his fees and I signed the papers he asked. He said I would only be expected to pay the amount owed for attorney fees after deducting the payments I had already made. I would not have signed the papers if I had known the amount of the notes was different from what he had agreed to charge or that he would not give me credit for payments made.

Borries also argued that Murphy had calculated his fee at $250 per hour but that the parties had agreed to $150 per hour.

¶14. Additionally, Borries submitted the affidavit of H. Benjamin Mullen, an attorney licensed in Mississippi and Alabama. Mullen stated that he had reviewed the list of time provided by Murphy as well as the other documents produced in discovery. Mullen drafted a document titled "Murphy Time with HBM Adjustments" that showed a list of hours Murphy had submitted on each case and the adjusted hours Mullen thought Murphy should have charged. While Murphy claimed 263.75 hours of work, Mullen submitted that 199.7 hours was the maximum that should have been charged. Mullen additionally stated that a reasonable hourly rate for the work performed would be $150 per hour. He noted that in October 2007, Murphy had prepared a detailed invoice covering three years’ legal work at $150 per hour. He wrote that the "timeframe of that invoice overlaps Mr. Murphy's reconstructed invoice which begins March 10, 2007." Murphy asserted that it would be unreasonable for an attorney to increase his fee from $150 to $250 per hour in a short period of time and without the express approval of his client.

¶15. On February 28, 2019, the trial court granted Murphy's motion for summary judgment and awarded Murphy, on the first note, a total judgment of $40,746.62, together with interest at the rate...