Clark v. Whiten, 57162

• Decision Date: 27 May 1987
• Docket Number: No. 57162,57162
• Parties: Fred CLARK v. Debra L. WHITEN.
• Court: Mississippi Supreme Court

Page 1105

508 So.2d 1105

Fred CLARK v. Debra L. WHITEN.

No. 57162.

Supreme Court of Mississippi.

May 27, 1987.

Rehearing Denied July 15, 1987.

Frank G. Vollor, Vicksburg, for appellant.

W. Richard Johnson, Vicksburg, for appellee.

Before WALKER, C.J., and ROBERTSON and ANDERSON, JJ.

ROBERTSON, Justice, for the Court:

I.

This is a paternity action. On appeal we are presented a challenge to the jury's finding of paternity. The matters of support for the child and the mother's attorneys fees are also before us. For the reasons discussed below, we affirm in part and reverse in part.

II.

On November 19, 1984, Haywood Montrel Whiten was born to Debra L. Whiten, at that time and now an unmarried female. On or about May 14, 1985, Debra L. Whiten filed in the Chancery Court of Warren County her complaint to establish that Fred Clark, an adult resident citizen of Warren County, was and is the father of her child. See Miss.Code Ann. Sec. 93-9-1 et seq. (1972). In due course, Clark answered, denying the essential allegations of the complaint and demanding trial by jury.

On September 10, 1985, the Chancery Court entered an order transferring the matter to the County Court of Warren County "for all further proceedings and trial by jury."

On November 5, 1985, the matter was called for trial in the County Court. Two days later, on November 7, 1985, the jury returned a verdict finding "Fred Clark to be the natural father of Haywood Montrel Whiten." The jury's verdict also assessed Clark with attorneys fees of $1,000.00.

Pursuant to this jury verdict, the County Court on November 8, 1985, pursuant to this jury verdict entered its order of filiation adjudging Clark to be the natural father of Haywood Montrel Whiten, providing that Clark "will be responsible to Haywood Montrel Whiten as allowed by law." The order further assessed attorneys fees against Clark.

Following the overruling of his motion for judgment notwithstanding the verdict, or, in the alternative, for a new trial, Clark has appealed to this Court. He assigns as error the refusal of the County Court to empanel a jury of twelve jurors, the overruling of his motion for a new trial, and the assessment of attorneys fees. Debra L. Whiten has cross-appealed the refusal of the trial court to submit to the jury the issue of support for the minor child or to enter judgment thereon.

III.

Clark first assigns as error the overruling of his request that a twelve person jury be empaneled. It will be recalled that, though originally filed in the Chancery Court, this matter was transferred to the County Court of Warren County following Clark's demand for trial by jury. The County Court, in accordance with the rules generally applicable, proceeded to empanel a jury of only six persons. See Rule 48(b), Miss.R.Civ.P. Clark relies upon Miss. Const. Art. 3, Sec. 31 (1890) and Miss.Code Ann. Sec. 93-9-15 (1972) in support of his claim. Clark confuses the historically familiar with the legally necessary.

To begin with, Rule 48(b) provides for a six person jury in County Court. That rule controls unless it is overriden by superior law. Rule 81(a)(9), Miss.R.Civ.P., provides that, with respect to paternity proceedings such as that before us today, statutory provisions supply the rules of procedure where there is conflict between the two. But when we turn to Section 93-9-15, we see only that defendants such as Clark are entitled to trial by jury. See Metts v. State Department of Public Welfare, 430 So.2d 401, 405 (Miss.1983). Nothing in the statute in any way suggests the number of jurors that may be required. If Section 93-9-15 provided for twelve jurors, it would override Rule 48(b). As written, however, there is no conflict. Accordingly, Rule 48(b) and its six person juror requirement prevails.

The same result obtains when we examine our constitution. Section 31 provides for trial by jury in civil cases and authorizes further the less than unanimous verdict. Nothing in Section 31, however, mandates juries of twelve persons in the County Court, or any other court. We make this latter comment in the context of Clark's argument that, because his action was originally brought in Chancery Court, the trial by jury requirement applicable to that court controls in the County Court to which the case was transferred "for administrative convenience in empaneling the jury." But there is nothing in the Constitution that requires a jury of twelve. See Colgrove v. Battin, 413 U.S. 149, 93 S.Ct. 2448, 37 L.Ed.2d 522 (1973). That Jesus of Nazareth had twelve Apostles does not translate into a constitutional requirement that a civil jury number twelve.

The assignment of error is denied.

IV.

Clark next assigns as error that portion of the jury's verdict and order of filiation assessing against him Whiten's attorneys fees in the amount of $1,000.00. He argues that there is an absence of evidence of the "reasonableness of the bill, the value of the services rendered, and the necessity of the time spent."

Miss.Code Ann. Sec. 93-9-45 (1972) provides that, in the event that the court enters an order of filiation declaring the male defendant to be the father of the child, that defendant "shall be taxed ... [with] the cost of the legal services of the attorney representing the petitioner...." We find implicit in the statute the further requirements that the costs so taxed be reasonable and necessary and that the party claiming these costs prove her entitlement.

Ordinarily, such an assessment could be made by the court without the aid of the jury. The right of trial by jury afforded by Section 93-9-15 applies only to "the issue of paternity." In the present record, however, it appears that Debra asked that the issue of attorneys fees be submitted to the jury. Instruction P-4, which she requested, reads

The Court instructs the jury that if you find Fred Clark to be the natural father of Haywood Montrel Whiten, you are allowed to award Debra L. Whiten reasonable attorneys fees incurred by her in this cause.

This instruction was given by the trial judge and was in fact submitted to the jury. Instruction P-6, a form of the verdict instruction, provided that the jury, if it found for Whiten, might assess "attorneys fees of $__________." We find on this record that each party waived any right he or she may have had to have the fee issue resolved by the court sans jury assistance.

The evidence reflects that Whiten had a fee arrangement with her attorney wherein he would charge her $50.00 per hour for his services. The record reflects a statement for services rendered dated November 4, 1985--the day before the trial began--wherein counsel charged Whiten for twenty and a half hours at $50.00 per hour for a total fee of $1,025.00. The problem lies in the fact that there is not one word in the record that suggests to the jury that the hours spent were necessary, that the hourly rate was reasonable.

No doubt there has been a certain air of gratuity in our Court's attitude toward fee requests in the past. Having been lawyers before we became judges and having some familiarity with such matters, we frequently succumb to the temptation to say that we know whether a fee is reasonable. And there may well be cases where the issue is submitted to the judge sitting without a jury where such an attitude may be practical and desirable.

Still our more thoughtful cases make clear that an attorneys fee claim has factual components that must be proved. See Craft v. Craft, 478 So.2d 258, 264 (Miss.1985); McKee v. McKee, 418 So.2d 764, 767 (Miss.1982). One of those components is "the customary charge in the community." Bumgarner v. Bumgarner, 475 So.2d 455, 456 (Miss.1985). If this is so where the trial judge is the fact finder, it is more so where the facts are to be found by a jury. Jurors may not be presumed to know what fees are reasonable and necessary.

Where the question of an award of attorneys fees is being submitted to the jury as the trier of fact, the party seeking the fee must prove, inter alia, the reasonable necessity of the rendering of the services and spending the amount of time for which the fee is charged, as well as the reasonableness of the hourly rate. See Mercy Hospital v. Johnson, 431 So.2d 687, 688 (Fla.App.1983); Parker, Lamb & Ankuda, P.C. v. Krupinsky, 146 Vt. 304, 503 A.2d 531 (1985); see also Neely v. City of Grenada, 624 F.2d 547 (5th Cir.1980). Frequently this is done by the calling of another attorney in the community who is familiar with the type of case and the rates customarily charged for similar services and who then provides the necessary opinion testimony. Such proof may also be made by the attorney whose fee is claimed. So long as a proper foundation is laid, the attorney representing the fee applicant or any other attorney may provide the evidentiary foundation for reasonableness and necessity. Absent such foundation, however, the jury is necessarily left to guess and speculate. ¹

In sum, this assignment of error is well taken. Insofar as the judgment below order that Clark pay attorneys fees to Whiten, the judgment is reversed and rendered.

V.

Clark challenges the jury's verdict on an additional ground. He argues that it was contrary to the weight of the evidence. Although his argument is less than crystal clear on the point, we do not understand Clark to be arguing that the evidence was insufficient as a matter of law and that a verdict should have been directed in his favor. Rather, the effect of Clark's assignment of error is that the trial court abused its discretion in refusing to order a new trial.

The child was born on November 19, 1984. Whiten testified that she had sexual relations with Clark only from July 1983 until after the birth of the child. At another point she testified that she had no sexual contact with any other male for more than ten months prior to the birth of the child. Despite Clark's effort to establish that Whiten was involved with other...