Dockins v. Allred, et al.
| Docket Number: | 2002-CA-00653-SCT | |
| Supreme Court: | Opinion Link Opinion Date: 06-26-2003 Opinion Author: Smith, P.J. Holding: Reversed and Remanded |
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| Additional Case Information: |
Topic: Contract - Attorney’s fees - Statutory penalty - Section 11-3-23 - Valuation of stock Judge(s) Concurring: Pittman, C.J., Waller, Cobb, Diaz and Carlson, JJ. Non Participating Judge(s): Graves, J. Dissenting Author : Easley, J. Concurs in Result Only: McRae, P.J. Procedural History: Summary Judgment Nature of the Case: CIVIL - CONTRACT |
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| Trial Court: |
Date of Trial Judgment: 10-24-2001 Appealed from: Hinds County Circuit Court Judge: W. Swan Yerger Disposition: Granted summary judgment to the Appellee setting the statutory penalty for pursuing a prior unsuccessful appeal. |
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| Note: | Attorney Fee Dispute | |
| Party Name: | Attorney Name: | |||
| Appellant: | Halbert E. Dockins, Jr. |
THOMAS HENRY FREELAND, III
ANITA M. STAMPS |
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| Appellee: | Michael S. Allred, John I. Donaldson and Allred & Donaldson, A Partnership | JAMES P. COTHREN MICHAEL S. ALLRED |
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| Topic: | Contract - Attorney’s fees - Statutory penalty - Section 11-3-23 - Valuation of stock |
| Summary of the Facts: | Attorney Halbert Dockins, Jr. and attorneys Michael Allred and John Donaldson and their law firm of Allred and Donaldson entered into an agreement to share the attorney’s fee resulting from a successful lawsuit against the Loewen Group. Dockins appealed the trial court’s grant of summary judgment to Allred for division of the fee. The Supreme Court affirmed and remanded the case for a determination of the amount of the statutory penalty. The court based the amount of the penalty on the entire attorney's fee and valued the stock included in the fee as of the date of its original grant of summary judgment rather than the date of the Supreme Court mandate. There was no penalty assessed on the promissory note from Loewen because it was payable in future installments. Dockins appeals. |
| Summary of Opinion Analysis: | Issue 1: Statutory penalty Dockins argues that the court erred by assessing the statutory penalty on the entire attorney’s fee. Section 11-3-23 provides for a mandatory penalty for pursuing an unsuccessful appeal. Where an appeal is filed claiming a portion of an asset or sum of money, the statutory penalty should only be applied to the portion claimed. A party cannot assume a position at one stage of a proceeding and then take a contrary stand later in the same litigation. Prior to the first appeal, the trial court, at Allred’s urging, set the amount in controversy at 21.53% of the attorney’s fee. Because of the firm’s argument at the hearing to set the amount in controversy, Allred cannot now assert that the amount in controversy was greater than the 21.53% of the fee the firm claimed. If the appellant loses, he must pay the price, a price he well knows and may easily calculate before giving his notice of appeal. The basis for Dockins’s calculation must have been the amount determined to be in controversy by the trial court before the appeal. While Dockins did assert, at times, that he should be entitled to more than 50% of the attorney’s fee, this was a speculative claim. Only a definite, final judgment should be subject to the statutory penalty. Therefore, the court erred in applying the appeal penalty to the amount of the entire attorney’s fee. Issue 2: Valuation of stock Dockins argues the appropriate date for the valuation of property is the date of the Supreme Court mandate. The Court has held in other cases that the date upon which valuation of the subject properties should be made in connection with the 15% statutory penalty is the date of the Supreme Court’s mandate affirming the lower court’s decision. Therefore, the trial court erred in fixing a different valuation date for the stock. |
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