Willing v. Estate of Benz, 2005-CA-00470-COA.

• Citation: 958 So.2d 1240
• Decision Date: 27 March 2007
• Docket Number: No. 2005-CA-00470-COA.,2005-CA-00470-COA.
• Parties: Joseph Erich WILLING, Jr., and Jeanette Willing, Individually, and as Parent and Natural Guardian of the Minors Joseph Brandon Willing and Chadwick Mitchell Willing, and as Administratrix of the Estate of Joseph Erich Willing, Sr., Deceased, Appellants, v. ESTATE OF Richard BENZ, Jr., Deceased, Wendy P. Benz, Executrix and the City of Greenwood, Mississippi, Appellees.
• Court: Court of Appeals of Mississippi

958 So.2d 1240

Joseph Erich WILLING, Jr., and Jeanette Willing, Individually, and as Parent and Natural Guardian of the Minors Joseph Brandon Willing and Chadwick Mitchell Willing, and as Administratrix of the Estate of Joseph Erich Willing, Sr., Deceased, Appellants, v. ESTATE OF Richard BENZ, Jr., Deceased, Wendy P. Benz, Executrix and the City of Greenwood, Mississippi, Appellees.

No. 2005-CA-00470-COA.

Court of Appeals of Mississippi.

March 27, 2007.

Thomas Henry Freeland, attorney for appellants.

Richard Benz, Jr., Arnold F. Gwin, Greenwood, Wilton V. Byars, Terry Dwayne Little, Oxford, attorneys for appellees.

EN BANC.

MODIFIED OPINION ON MOTION FOR REHEARING

BARNES, J., for the Court.

¶ 1. The appellants' motion for rehearing is denied, and the previous opinion of this Court is withdrawn, and this opinion is substituted in lieu thereof. This wrongful death action brought under the Mississippi Tort Claims Act ("MTCA") arose from circumstances surrounding the death of Joseph Erich Willing, Sr. near the intersection of U.S. Highway 49 and U.S. Highway 82 in Greenwood, Mississippi on January 8, 2002. The Willings appeal to this Court from the Leflore County Circuit Court's grant of summary judgment in favor of the City of Greenwood as well as from the court's award of attorney's fees to Richard Benz, Jr. Finding error only in the trial court's award of attorney's fees, we affirm in part and reverse and remand in part.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 2. At approximately 6:18 a.m. on the morning of January 8, 2002, Officer Scott Beck of the Greenwood Police Department responded to a single vehicle accident near the intersection of U.S. Highway 49 and U.S. Highway 82 in Greenwood, Mississippi. The driver of the vehicle informed Officer Beck that she was traveling in the eastbound lane of Highway 82 when she hit what appeared to be a patch of ice that caused her vehicle to slide across the median into the westbound lane of Highway 82. At approximately 6:35 a.m., Officer Beck radioed the police dispatcher and reported the three to four foot patch of ice on the road so that the Mississippi Department of Transportation ("MDOT") could be notified to address the condition with sand or salt. Officer Beck then completed his accident report and left the scene. A few minutes after receiving the report from Officer Beck, the police dispatcher notified MDOT of the ice on the highway.

¶ 3. At approximately 7:13 a.m. on the same morning, Officer Beck was again dispatched to the intersection of Highway 49 and Highway 82 in reference to another accident. Sharon Simpson, the driver of the vehicle involved in this accident, stated that she was traveling approximately seventy miles per hour¹ east on Highway 82 when she drove over a patch of ice and slid across the median, hitting and killing Joseph Erich Willing, Sr. ("Willing, Sr."), who was in the process of repairing a construction sign damaged in the first accident. The patch of ice involved in this accident was apparently the same patch of ice involved in the earlier accident. MDOT arrived to address the patch of ice a few minutes before Officer Beck left the scene of this second accident.

¶ 4. By the end of the day, Joseph Erich Willing, Jr. ("Joseph") had filed a complaint in the Circuit Court of Leflore County, Mississippi as a wrongful death beneficiary of Willing, Sr. Joseph contemporaneously petitioned the Chancery Court of Leflore County for letters of administration in the estate of Willing, Sr. The chancery court granted this petition and also approved the contingent fee contract between Joseph and his attorney Richard Benz, Jr.² Subsequently, Jeanette Willing, widow of Willing, Sr. and guardian of their two minor children, filed a motion through separate counsel in the Leflore County Chancery Court to set aside the order granting letters of administration and approving the contingent fee contract between Joseph³ and Benz. Acknowledging that Grenada County was the proper venue for administration of Willing, Sr.'s estate and that Jeanette Willing should have been given preference to administer the estate, the Leflore County Chancery Court granted Jeanette's motion and entered an order to that effect on April 5, 2002.⁴ The contract for employment between Joseph and Benz, insofar as it may have related to any activity on behalf of Jeanette Willing or the two minor children, was ordered "set aside, canceled and held for naught" by the chancellor.

¶ 5. On July 2, 2002, Sharon Simpson filed an interpleader counterclaim asking that $100,000, the policy limits of her automobile liability insurance, be interpled into the registry of the circuit court in which the wrongful death action was pending. An agreed order was entered by the circuit court granting Simpson's interpleader request and ordering all plaintiffs to release Simpson from further liability. The circuit court then entered an order disbursing the proceeds of the settlement funds, finding that Benz was entitled to one-third of the proceeds pursuant to the contingency fee contract signed by Joseph on behalf of the wrongful death beneficiaries of Willing, Sr.

¶ 6. Jeanette Willing, acting through separate counsel, was allowed to intervene in the wrongful death action, and her counsel immediately moved the Leflore County Circuit Court to reconsider the disbursement order, citing the fact that the Leflore County Chancery Court had revoked the letters of administration it had granted to Joseph and had invalidated the contract for employment between Benz and Joseph as it may have related to activity on behalf of Jeanette Willing or her two minor children. This motion was denied by the circuit court on January 15, 2003.

¶ 7. Having received contingency fees from the Simpson settlement proceeds and at the written request of Joseph, Benz filed a motion to withdraw as counsel for Joseph, and this motion was granted by order of the circuit court on June 26, 2003. Pursuing their claims now by joint representation, the Willings' complaint was amended to add the City of Greenwood as a defendant. The amended complaint alleged negligence on the part of the city in failing to warn of the icy condition on the highway. The city moved for summary judgment asserting that it was immune from liability by virtue of the MTCA. More specifically, the city cited immunities found at sections 11-46-9(1)(c), (d), (q), and (v) as precluding liability for the city's acts or omissions regarding the death of Willing, Sr. The circuit court granted the city's motion for summary judgment, dismissing the case with prejudice; however, the circuit court found that immunity existed under subsections (c), (d), and (q) only.

¶ 8. Aggrieved, the Willings appeal to this Court urging that there are genuine issues of material fact as to whether the city was entitled to immunity under any provision of the MTCA and that therefore the grant of summary judgment in favor of the city was error. Additionally, the Willings appeal the circuit court's grant of a one-third contingency fee to attorney Benz from the interpled settlement proceeds. The Willings assert that Benz is entitled to contractual fees only with respect to his representation of Joseph and that he is entitled to fees based on quantum meruit with respect to work that may have benefitted Jeanette Willing, the estate of Joseph Erich Willing, Sr., and Jeanette Willing's two minor children. We find that there is no genuine issue as to whether the immunities found in subsections (c) and (q) are applicable to the Willings' claims against the City of Greenwood and therefore affirm the circuit court's grant of summary judgment. As to the award of contingent fees to attorney Benz out of proceeds attributable to beneficiaries other than Joseph, we reverse and remand the case with instructions that the circuit court use quantum meruit to determine the amount of fees owed to Estate of Richard Benz, Jr.

STANDARD OF REVIEW

¶ 9. When reviewing a trial court's grant of summary judgment, this Court applies a de novo standard of review. Busby v. Mazzeo, 929 So.2d 369, 372(¶ 8) (Miss.Ct. App.2006). Rule 56(c) of the Mississippi Rules of Civil Procedure provides that summary judgment is proper where "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." When considering a motion for summary judgment, the deciding court must view all evidence in a light most favorable to the non-moving party. Mazzeo, 929 So.2d at 372(¶ 8). Only when the moving party has met its burden by demonstrating that there are no genuine issues of material fact should summary judgment be granted. Tucker v. Hinds County, 558 So.2d 869, 872 (Miss. 1990). As applied to the case sub judice, this Court must determine whether the City of Greenville adequately demonstrated that there are no triable issues with regard to whether the city is immune from liability under the MTCA. See Mazzeo, 929 So.2d at 372(¶ 8) (citing Lyle v. Mladinich, 584 So.2d 397, 398 (Miss.1991)).

¶ 10. The circuit court's decision to award contingent fees to attorney Benz will not be disturbed unless the trial judge's decision was manifestly wrong, clearly erroneous, or an improper legal standard was applied. See Pannell v. Guess, 671 So.2d 1310, 1313 (Miss.1996) (citing Hill v. Southeastern Floor Covering Co., 596 So.2d 874, 877 (Miss.1992)). "For questions of law, our standard of review is de novo." In re Estate of Brewer, 755 So.2d 1108, 1111(¶ 10) (Miss.Ct.App.1999) (citing Smith v. Dorsey, 599 So.2d 529, 533 (Miss.1992)). We conclude that the errors urged by the Willings as to the award of contingency fees involve questions of law regarding application of Mississippi's wrongful death statute. Therefore, we will analyze de novo the legal standard applied by...