In re Estate of Brewer, 97-CA-01378-COA.

• Decision Date: 04 May 1999
• Docket Number: No. 97-CA-01378-COA.,97-CA-01378-COA.
• Citation: 755 So.2d 1108
• Parties: In the Matter of the ESTATE OF Rocky Robert BREWER, Deceased. Barbara Balsara, Administratrix of the Estate of Rocky Robert Brewer, Deceased, Appellant, v. Tanja Adams, Appellee.
• Court: Mississippi Court of Appeals

755 So.2d 1108

In the Matter of the ESTATE OF Rocky Robert BREWER, Deceased.

Barbara Balsara, Administratrix of the Estate of Rocky Robert Brewer, Deceased, Appellant, v. Tanja Adams, Appellee.

No. 97-CA-01378-COA.

Court of Appeals of Mississippi.

May 4, 1999.

Rehearing Denied August 17, 1999.

Certiorari Denied October 28, 1999.

John M. Mooney, Jr., Jackson, Attorney for Appellant.

Ken R. Adcock, Mark D. Morrison, Jackson, Attorneys for Appellee.

BEFORE McMILLIN, C.J., IRVING, AND PAYNE, JJ.

McMILLIN, C.J., for the Court:

¶ 1. Barbara Balsara, administratrix of the estate of Rocky Robert Brewer, deceased, has appealed the chancellor's judgment ordering the distribution of the proceeds from a wrongful death claim commenced by her as representative of the statutory wrongful death beneficiaries. On appeal, Balsara raises four matters for consideration. We have elected to recast her issues into three areas of concern based on our analysis of the questions actually presented by her appeal. We will delay reciting our version of these critical issues until after we discuss the facts. We do so on the belief that the issues will, at that point, be more readily understandable. Suffice it to say at this point, for reasons we proceed to develop, we find it necessary to reverse and remand the chancellor's decision for further proceedings.

I.

Facts

¶ 2. On January 4, 1997, Rocky Robert Brewer was struck and killed by an automobile. Brewer was eighteen years old and unmarried at the time of his death. On March 7, 1997, Barbara Balsara, Brewer's mother, was appointed administratrix of her son's estate in a proceeding in the Chancery Court of Rankin County. Balsara's petition for appointment included a request that Brewer's heirs at law be determined in the proceeding. She also sought authority to commence a wrongful death action for the benefit of Brewer's wrongful death beneficiaries, the action to be brought against the driver of the vehicle that struck and killed Brewer. The petition, in addition to naming those living individuals who would appear to be Brewer's heirs at law, alleged that Tonya Kristine Adams (hereafter "Kristine Adams") was pregnant at the time of Brewer's death and that circumstances suggested that Brewer might be the father of her yet-unborn child.

¶ 3. The order appointing Balsara as administratrix authorized her to pursue the wrongful death claim and approved her request to retain attorney John M. Mooney to prosecute the claim under a contingency fee arrangement.

¶ 4. On April 30, 1997, Balsara's attorney sent notice to Kristine Adams by certified mail that Balsara had been appointed administratrix of Brewer's estate. The letter also informed Adams that a wrongful death action had been initiated. Adams was instructed in the letter to contact Balsara's attorney if she contended that Brewer was the father of her child. Whether it was coincidental or not, the child, named Rebecca Elizabeth Brewer, was born on April 30, the same date the notice was mailed. The record indicates that the letter was received on May 2, 1997. Adams did not respond to the letter by contacting either Balsara or Mooney or by taking any other action regarding the Rankin County proceedings.

¶ 5. Mooney arrived at a proposed settlement of the wrongful death claim with the attorney for the driver's insurance company. The settlement amount was $25,000, which represented the limits of the driver's liability insurance policy. Mooney requested a hearing before the Rankin County chancellor for the purpose of having the settlement approved. The motion did not include a request for authority to distribute the settlement proceeds to any particular beneficiary or beneficiaries. A hearing on the motion to approve the settlement was set for August 4, 1997.

¶ 6. Though Kristine Adams had not responded to Mooney's April 30 letter, it cannot be said that the child's family had been completely inactive. Tanja Adams, who was Kristine Adams's mother and, thus, the child's maternal grandmother, obtained the services of attorney Ken R. Adcock in January 1997, shortly after Brewer's death, to investigate the possibility of a wrongful death claim on behalf of the unborn child. The contract for services, dated January 14, 1997, recited that it was between Adcock and "a baby to be born on April 27, 1997, conceived between Tonya Kristine Adams, a minor, and Rocky Robert Brewer, deceased." No effort was made to obtain chancery court approval of the contract in January or any subsequent time until after the baby was born.

¶ 7. On July 14, 1997, almost two and one half months after the child was born and over two months after notice had been sent to her daughter concerning the Rankin County proceeding, Tanja Adams filed a petition in the Chancery Court of the First Judicial District of Hinds County asking that she be appointed guardian of the estate and person of her grandchild, Rebecca Elizabeth Brewer. The petition also sought court approval for her attorney, Ken Adcock, to pursue a wrongful death claim under the previously existing contingency fee contract. There is no indication that Tanja Adams informed the Hinds County chancellor of the pending Rankin County proceeding. On July 28, 1997, the Hinds County Chancery Court issued an order granting Tanja Adams all the relief she had requested. At approximately the same time, blood test results were obtained that indicated a greater than 99% probability that Rebecca Elizabeth Brewer was, in fact, the posthumous child of Rocky Brewer. ¶ 8. On the hearing date in the Rankin County estate administration, Tanja Adams filed a motion to intervene in her capacity as guardian for the child. After hearing arguments, the chancellor allowed the intervention. He further found that the child was Rocky Brewer's illegitimate child and, thus, was his sole wrongful death beneficiary under the statute. He, therefore, held that she was entitled to receive the entire settlement proceeds. The chancellor also found that attorney's fees were, as a matter of law, merely an assignment of a portion of the right of recovery belonging solely to Rebecca Elizabeth Brewer, and, therefore, Adcock was the only attorney entitled to recover a fee from the wrongful death settlement. The chancellor ordered disbursement of the $25,000 settlement to Tanja Adams as guardian for Rebecca and ordered that Adcock be paid the attorney's fees specified in his contract.

¶ 9. Balsara perfected this appeal, which presents the following issues (as recast by the Court):

(1) Whether the trial court erred in finding Rebecca Elizabeth Brewer to be an heir at law of Rocky Brewer, and thus a wrongful death beneficiary, without complying with the legal formalities necessary to adjudicate paternity of an illegitimate child.

(2) Whether, in all events, Rebecca Elizabeth Brewer's claim to be a wrongful death beneficiary of Rocky Brewer was time barred because of her failure to institute an action to adjudicate paternity within the time allowed by statute.

(3) Whether the chancellor erred in awarding Adcock the full amount of his contractual attorney's fee with no compensation to Mooney despite Mooney's having filed the wrongful death action and negotiated the settlement of the claim.

II.

The Standard of Review

¶ 10. A chancellor's ruling on findings of fact will not be disturbed unless manifestly wrong or clearly erroneous. Denson v. George, 642 So.2d 909, 913 (Miss.1994). For questions of law, our standard of review is de novo. Smith v. Dorsey, 599 So.2d 529, 533 (Miss.1992)

. Three principal questions are presented in this appeal. We conclude that the errors urged by Balsara all involve questions of law in which the chancellor enjoyed no discretion. We also conclude that the chancellor erred as a matter of law as to the first and third issues stated above, which requires this Court to reverse and remand in part and reverse and render in part.

III.

The Lack of a Proceeding to Establish Paternity

¶ 11. Balsara claims that the chancellor erred in adjudicating paternity without complying with the proper formalities. The sole evidence of paternity before the chancellor was a written report of the results of scientific paternity testing apparently conducted by a laboratory, but which had not been authorized in advance by court order. The report was a part of the record only because it was attached as an exhibit to Tanja Adams's petition to intervene.

¶ 12. A person claiming to be the illegitimate child of a deceased male when paternity was not legally established prior to the alleged father's death must obtain "an adjudication of paternity after the death of the intestate, based upon clear and convincing evidence, in an heirship proceeding under sections 91-1-27 and 91-1-29." Miss.Code Ann. § 91-1-15(3)(c) (Rev. 1994). Section 91-1-27 requires the claimant to file a petition asking to "be recognized and decreed to be the heir at law of said deceased." Miss.Code Ann. § 91-1-27 (Rev.1994). Section 91-1-29 requires, as a part of the proceeding to establish heirship, that "[a]ll the heirs at law and next of kin of said deceased who are not made parties plaintiff to the action shall be cited to appear and answer the same." Miss.Code Ann. § 91-1-29 (Rev.1994). Additionally, that section requires that notice be published for unknown heirs of the decedent. Miss.Code Ann. § 91-1-29 (Rev.1994).

¶ 13. When the individual asserting heirship claims to be an illegitimate child, we conclude that the necessary parties to such a proceeding described in Section 91-1-29 include those blood relations of the decedent that would be the decedent's heirs at law should the illegitimate's claim of paternity fail. These persons would be necessary parties even if they would be completely excluded from inheritance if the paternity claim were proven.

¶ 14. Therefore, before the chancellor could adjudicate this child to be the illegitimate child of Rocky Brewer, it...