Long v. McKinney, No. 2003-IA-00849-SCT.

• Court: United States State Supreme Court of Mississippi
• Citation: 897 So.2d 160
• Decision Date: 02 December 2004
• Parties: Douglas LONG, Edward Long, Richard Long, and Earl Long v. Lori McKINNEY on behalf of all wrongful death beneficiaries of Huey P. Long, deceased.
• Docket Number: No. 2003-IA-00849-SCT.

897 So.2d 160

Douglas LONG, Edward Long, Richard Long, and Earl Long
v.
Lori McKINNEY on behalf of all wrongful death beneficiaries of Huey P. Long, deceased

No. 2003-IA-00849-SCT.

Supreme Court of Mississippi.

December 2, 2004.

Rehearing Denied April 7, 2005.

897 So.2d 162

William B. Weatherly, attorneys for appellants

Mariano Javier Barvie', A. Norris Hopkins, Jr., Alben N. Hopkins, Gulfport, attorneys for appellee.

EN BANC.

DICKINSON, Justice, for the Court.

¶ 1. In this wrongful death case, we are called upon to address issues which ought to have been settled long ago. Two law firms representing different wrongful death heirs filed separate wrongful death suits in the same circuit court. The attorneys and their respective clients are now embroiled in a battle over consolidation, joinder, and "control" of the litigation. No area of the law has historically provided

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more muddled, misquoted and misunderstood procedural rules, than civil claims for wrongful death. The blame for the perennial scrap over the rules can be traced to at least two sources

¶ 2. First, although the issue has been debated, the American judiciary — federal and state — has failed to squarely address the question of whether substantive claims for wrongful death originated in the common law, rendering them subject to substantial judicial discretion; or are creatures of statute, requiring strict, statutory construction.

¶ 3. Secondly, it appears that in the waning years of the Nineteenth Century, our own wrongful death statute (the "Statute") took a wrong turn into procedural territory where it had no license to travel. When one branch of government (well-intentioned though it may be) crosses the line into the purview of another, the balance of powers necessary for efficient and effective government is upset. So it was with the Statute. As a result, this Court has, for over a century, attempted to provide procedural guidance mislabeled as statutory interpretation; much like attempting to place a square peg into a round hole. Consequently, little progress has been made in settling many troubling issues related to wrongful death litigation. The same issues and problems continually appear, and have been addressed on an ad hoc basis, leaving little in the way of dependable precedent.

¶ 4. Today, we are provided an opportunity to address and clarify several of these problems, and to provide guidance for these issues to the bar and judiciary.

¶ 5. In reaching our decision today, we have carefully reviewed the history of the wrongful death cause of action and the path which led to the enactment of our first wrongful death statute in 1857. A brief overview of that history is provided herewith as Appendix A.

¶ 6. Additionally, because the linchpin of our decision in this case is the Mississippi Constitution, we also provide in Appendix B a brief analysis of its history and provisions, as they relate to the case before us.

¶ 7. The case before us should be, procedurally at least, an uncomplicated case. However, previous attempts to interpret the procedural provisions of our Statute have complicated wrongful death litigation, and have provided our trial judges and trial bar with unnecessary difficulty. Accordingly, we must now meet our constitutional responsibility by scrutinizing the Statute for those matters which are judicial (including procedural provisions),¹ and by establishing the procedure to be followed in wrongful death litigation, those provisions notwithstanding.

¶ 8. This Court is loathe to declare unconstitutional any statutory provision enacted by the legislature. To do so requires a careful and diligent review, and a conclusion that no constitutional alternative exists. In promulgating the Mississippi Rules of Civil Procedure, this Court held that — in the event of a conflict between procedural statutes and the rules — the "rules shall control." See Supreme Court order entered May 26, 1981, published in Mississippi Rules of Civil Procedure. In Newell v. State, 308 So.2d 71, 76 (Miss.1975), this Court characterized procedural statutes as "legislative suggestions,"

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to be followed "unless determined to be an impediment to justice or an impingement upon the constitution." We are obligated to walk that same path in deciding the matters before us today

¶ 9. Accordingly, because we find provisions of the Statute which are not in accord with this opinion to be "an impingement upon the constitution," we hold that, where provisions of this opinion conflict with the Statute, the provisions herein shall control. In doing so, it is our purpose to not only fulfill our constitutional responsibility, but also, to improve our judicial and legal systems so that cases and controversies may more efficiently and fairly move through the courts, providing proper resolution to the litigants.

¶ 10. It is against this background that we now proceed to resolve the case sub judice. We begin with a review of the factual background.

FACTUAL BACKGROUND

¶ 11. On October 5, 2002, while hospitalized for heart by-pass surgery, Huey P. Long suffered a premature death. His will left everything to his daughter, Lori McKinney, and "specifically excluded all of [his] other children and stepchildren" from his will "because each of them has no physical or mental conditions requiring participation in [his] estate."

¶ 12. Twelve days later, Lori signed a contingency fee contract of employment with Hopkins, Barvie & Hopkins, P.L.L.C., (the "Hopkins Firm"), engaging that law firm to represent her and file suit on her behalf. Specifically, the contract provides, as follows:

In consideration of the legal services to be rendered by the law firm of HOPKINS, BARVIE' & HOPKINS, P.L.L.C .... for any claims that I, the undersigned client, ... may have against the parties responsible for the injuries and/or damages sustained by client on the ___ day of ________, 20_____, I the undersigned client, do hereby employ HOPKINS, BARVIE' & HOPKINS, P.L.L.C., to represent and institute proceedings for damages in my behalf against Memorial Hospital; Dr's for the aforesaid injuries and/or damages.

The contract does not mention Huey P. Long, his estate, his wrongful death beneficiaries, or his death.² On that same day, the Hopkins Firm filed a complaint in the Circuit Court of the First Judicial District of Harrison County, identifying the plaintiffs as "Lori, individually, and on behalf of all wrongful death beneficiaries of Huey P. Long." The estate of Huey P. Long is not named as a plaintiff, nor is it mentioned in the complaint.

¶ 13. The next day, without knowledge of Lori's lawsuit, Douglas Long, Edward P. Long and Richard Long, individually and on behalf of all the wrongful death beneficiaries of Huey P. Long, filed a complaint in the Circuit Court of Harrison County, First Judicial District. Their counsel, William Weatherly, Esq. ("Weatherly"), had obtained contingency fee contracts from the three on October 15th, 16th, and 18th, respectively. After later obtaining a contingency fee contract from the fourth brother, Earl Long, Weatherly amended the Complaint to add him as a plaintiff. Douglas, Edward, Richard and Earl were all children of the deceased,

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Huey P. Long, and will be referred to herein as the "Longs."

¶ 14. On November 13, realizing that Lori had filed suit one day prior to his clients, Weatherly filed a motion requesting the circuit court to consolidate the two suits and to order that attorney fees be paid according to the attorneys' respective contracts.

¶ 15. A week later, Lori presented a PETITION FOR APPROVAL OF CONTRACT FOR LEGAL SERVICES to the chancery court, seeking approval of her attorney fee contract with the Hopkins firm.³ The chancery court entered an order approving the employment contract, and characterizing it as a

contract entered into between your (sic) petitioner herein and the law firm of Hopkins, Barvie' & Hopkins to represent the Petitioner on behalf of the Estate of Huey P. Long....

The order goes further to state that

Petitioner verified to this Honorable Court that she feels that it is in the best interest of the estate that said firm represent the estate and the Court further finds that it is in the best interest of the estate that the said firm represent the estate in those said proceedings for medical malpractice for the estate.

Accordingly, the Chancellor ordered, as follows:

ORDERED AND ADJUDGED that your (sic) Petitioner be and she is hereby authorized to enter into [a] legal contract and employ the law firm of Hopkins, Barvie' and Hopkins, P.L.L.C. to file suit, on behalf of the Estate of Huey P. Long, for a medical malpractice claim and it is further ordered that the firm of Hopkins, Barvie' & Hopkins, P.L.L.C. upon execution of said contract shall proceed to file or enter in or intervene in said legal proceedings on behalf of the estate and the contingency contract of the firm of Hopkins, Barvie' & Hopkins, P.L.L.C., aforesaid for 40% is approved and granted from the estate.

¶ 16. Thus, the chancery court order authorized the Hopkins firm to represent Lori in her capacity as administratrix of the estate of Huey P. Long. The order further provided that the 40% contingency fee was "approved and granted from the estate."

¶ 17. On December 2, the Longs' motion to consolidate came before the circuit court for hearing. During the hearing, the circuit judge asked whether an estate had been opened. Counsel for Lori replied that Raines represented the estate, and that there was an order in the judge's packet of information which provided that "the chancellor approved our law firm representing the estate and all wrongful death beneficiaries in that matter, also in the civil matter, and you've got a copy of that order."

¶ 18. Because of previous interpretations of the Statute, we are satisfied that Lori's counsel believed this representation to be true when made. However, it...