Franklin v. Franklin ex rel. Phillips

• Decision Date: 13 February 2003
• Docket Number: No. 2001-CA-01218-SCT.,2001-CA-01218-SCT.
• Parties: 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.
• Court: Mississippi Supreme Court

858 So.2d 110

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.

No. 2001-CA-01218-SCT.

Supreme Court of Mississippi.

February 13, 2003.

Frank W. Trapp, Jackson, Fred M. Harrell, Jr., Brandon, Paul Snow, Jackson, attorneys for appellants.

Bill Waller, Sr., Jackson, attorney for appellees.

Before SMITH, P.J., COBB and DIAZ, JJ.

DIAZ, J., 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 On the Court's own motion, the original opinion is withdrawn, and this opinion is substituted therefor.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 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.

¶ 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.

¶ 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 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 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....