Franklin, et al. v. Franklin, et al.
| Docket Number: | 2001-CA-01218-SCT Linked Case(s): 2001-CA-01218-SCT ; 2001-CA-01218-SCT |
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| Supreme Court: | Opinion Link Opinion Date: 02-13-2003 Opinion Author: Diaz, J. Holding: Reversed and Rendered |
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| Additional Case Information: |
Topic: Wrongful death - Attorneys’ fees - Section 11 7 13 - Implied contract - Vacating of prior order Judge(s) Concurring: Pittman, C.J., McRae and Smith, P.JJ., Cobb, Easley, Carlson and Graves, JJ. Non Participating Judge(s): Waller, J. Procedural History: Bench Trial Nature of the Case: CIVIL - WRONGFUL DEATH/Motion for Rehearing |
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| Trial Court: |
Date of Trial Judgment: 06-05-2001 Appealed from: Rankin County Circuit Court Judge: Joe N. Pigott Disposition: Awarded all attorney fees in the Franklin case to Waller. ¶3. Snow and Harrell’s Motion for New Trial was denied July 23, 2001. Case Number: 99-122 & 99-127 |
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| Note: | On the Court's own motion, the original opinion is withdrawn, and this opinion is substituted therefor. Motion for rehearing filed by appellees is denied. Appellees' Motion to Expand Page Limit so as to allow the filing of a motion for rehearing which is 31 pages in length is granted. | |
| Party Name: | Attorney Name: | |||
| Appellant: | Heather Nicole Franklin, Fred M. Harrell, Jr. and Paul Snow |
FRANK W. TRAPP
FRED M. HARRELL, JR.
PAUL SNOW |
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| Appellee: | Jonathan Paul Franklin, a Minor, By and Through His Natural Mother, Cathy Phillips, and Bill Waller, Sr. | BILL WALLER, SR. |
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| Topic: | Wrongful death - Attorneys’ fees - Section 11 7 13 - Implied contract - Vacating of prior order |
| Summary of the Facts: | This opinion is substituted for the original opinion. Jonathan Franklin brought suit for the wrongful death of his father. He was represented by attorney Bill Waller, Sr. Jonathan's sister, Heather Franklin, also brought suit for the same wrongful death. She was represented by attorneys Fred Harrell, Jr. and Paul Snow. The circuit court judge ordered that the cases be consolidated and 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. The case settled a day before trial, and Waller was awarded all attorneys’ fees in the case by another judge. Snow and Harrell appeal. |
| Summary of Opinion Analysis: | Issue 1: Attorney’s fees in wrongful death action Section 11 7 13, the wrongful death statute, provides that no matter which of the multiple persons authorized to bring the suit actually does so, there shall be but one suit for the same death which shall ensue for the benefit of all parties concerned. Because there may be but one lawsuit filed, this "first to file" rule gives preference to the first case filed. However, it does not prohibit the court from ordering multiple wrongful death suits to be joined. Snow and Harrell argue that the court erred in holding that control of the suit was in the hands of Jonathan and his attorneys since his suit was filed first and that an attorney whose efforts contribute to obtaining or in enhancing a settlement is entitled to attorney fees. They offer proof of the substantial amount of time and work expended by them and contrast it to the de minumus amount they claim was expended by Waller. There is no question that Snow and Harrell performed under their contract and their work benefitted both their clients and Waller's client by enhancing the settlement value of the lawsuit. Waller has not presented substantial evidence to show that the value of his services to either Jonathan or Heather warrant 100% of the attorney fees. In the depositions he did attend, Waller only asked 9% of the questions, whereas Snow and Harrell asked 91%. Snow and Harrell filed 83 pleadings, while Waller only filed 10. Testimony revealed that both Waller and Snow were involved in settlement negotiations, and Waller just happened to be the one that received and communicated to the court the final settlement offer. Had Snow and Harrell not been prosecuting the case, the plaintiffs would not have been able to use the leverage of punitive damages and the plaintiffs would have had no expert testimony. An attorney who has the authority to pursue the wrongful death case and then works the case up to a successful conclusion is entitled to a fee. Snow and Harrell are entitled to compensation based upon their contribution to the case and their justifiable reliance on the first judge’s order. Issue 2: Implied contract Snow and Harrell argue that Waller's acquiescence in the arrangement by allowing them to assume the majority of the work in getting the case prepared for trial created an implied contract. When a party accepts and uses the services of an attorney knowing that compensation is expected, a contract will be implied for the payment of attorneys fees. Although Waller objected to the court’s order allowing Snow and Harrell to participate and asked the court to reconsider, he took no further steps to voice his disapproval until it was time to split the attorney fees. If he had wanted to preserve his objection and avoid the appearance of acquiescence, he should have advised Snow, Harrell, and the judge that at the end of the case he would again dispute any claim for attorney fees and he should have undertaken to prepare the case for trial. Under these circumstances, the law will imply a contract. Issue 3: Vacating of prior order Snow and Harrell argue that the second judge erroneously vacated the prior judge’s order, because the first order was proper and reasonable. The lawyers justifiably relied upon this order for over a year and a half as they prepared the case for trial. The wrongful death statute does not by its express terms limit the case to one lawyer or otherwise limit each heir's choice of her own counsel. The second order not only reaches an inequitable result, it penalizes heirs who want their own lawyer to represent them and are willing to pay them from their own recovery. Therefore, the judge erred in vacating the first order. Issue 4: Validity of attorney’s fees Snow and Harrell argue that Waller is not entitled to attorneys’ fees from Heather because he had no contract with her. An attorney who does work that enhances the value of a settlement should be paid for his efforts, even in the absence of a contract, and one who does nothing should not be given a windfall, even if a contract exists. Waller had no contract with Heather and he has failed to put on any proof to establish that he is entitled to fees from the daughter based upon any work done on her behalf. He has only relied on having been the first attorney to file a wrongful death suit which is not enough. |
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