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In re Estate of Stewart

February 18, 1999

IN THE MATTER OF THE ESTATE OF EARL EDSEL STEWART, DECEASED; THE LAW FIRM OF LOGAN & BISE
v.
R. L. STEWART, EXECUTOR



The opinion of the court was delivered by: Waller, Justice

DATE OF JUDGMENT: 02/28/97

TRIAL JUDGE: HON. SHANNON S. CLARK COURT FROM WHICH APPEALED: HARRISON COUNTY CHANCERY COURT

NATURE OF THE CASE: CIVIL - OTHER

DISPOSITION: REVERSED AND RENDERED - 2/18/1999

EN BANC.

STATEMENT OF THE CASE

¶1. The law firm of Logan & Bise perfected this appeal from the trial court's denial of their proof of claim filed against the estate of Earl Edsel Stewart. Logan & Bise assign the following issues for appellate review:

I. THE TRIAL COURT ERRED AS A MATTER OF LAW IN HOLDING THAT THE PROVISIONS OF MISS. CODE ANN. § 15-1-49 (1972) BARRED RECOVERY OF THOSE PORTIONS OF THE CLAIM FILED FOR PROBATE BY LOGAN & BISE WHICH REPRESENTED CHARGES FOR SERVICES AND EXPENSES INCURRED MORE THAN THREE YEARS PRIOR TO THE FILING OF THE PROOF OF CLAIM.

II. THE TRIAL COURT ERRED AS A MATTER OF LAW IN HOLDING THAT APPELLANTS WERE NOT ENTITLED TO RECOVER FOR SERVICES PERFORMED WITHOUT A WRITTEN CONTRACT.

STATEMENT OF THE FACTS

¶2. Sometime in 1987, Edsel Stewart ("Stewart") approached attorney Floyd J. Logan ("Logan") seeking legal representation regarding a dispute with his adjoining property owner, W.C. Fore ("Fore"). Stewart believed that a strip mine being operated on Fore's property was damaging his land and violated certain regulations promulgated by the Department of Environmental Quality ("DEQ"). According to Logan, Stewart balked at the standard contingency fee contract. As a result, and again according to Logan, the parties settled on "a cost plus a reduced hourly rate and a reduced contingency fee" arrangement. However, there was never a written agreement reached concerning the contingency fee, and further, no written contract has ever been found by either party.

¶3. Stewart died of cancer in September of 1995. Prior to his death, the DEQ issued a ruling adverse to Stewart and a lawsuit had been filed on his behalf by the law firm of Logan & Bise, but neither the appeal of the DEQ ruling nor the lawsuit had been resolved at the time of Stewart's death. In October of 1995, Stewart's daughter, Glenda Bach ("Glenda") directed Carter Bise ("Bise"), of Logan & Bise *fn1 , to dismiss the DEQ appeal. Subsequently, the Estate sold Stewart's property to Fore for the sum of $465,000. The terms of the sale were negotiated by the executor of the estate, R.L. Stewart ("R.L."), without the assistance of the law firm of Logan & Bise. Bise testified that he had obtained the services of an appraiser, John Holliday, to assist in the sale of the property.

¶4. After her father's death, Glenda and her husband, Gene Bach ("Gene"), met with Bise to discuss the status of the firm's representation of Stewart. Glenda and Gene testified that Bise told them that Stewart did not owe Logan & Bise any money. Likewise, R.L. testified that in the months before his death Stewart never mentioned being indebted to Logan & Bise. R.L. further testified that Bise told him that "Edsel didn't owe him anything." Bise testified that he told R.L., Gene, and Glenda that they did not owe him anything. He stated that he was not referring to the fee owed by Stewart, but only to any fee that might be owed by R.L. or Gene and Glenda.

ΒΆ5. It is the position of Logan & Bise that the representation of Stewart continued from 1987 to late 1995, when they were directed to dismiss the DEQ appeal and the property in question was sold to Fore. The evidence showed that over the course of 8 years, Logan & Bise sent two bills for legal services to Stewart. The first bill was sent June 8, 1988, and totaled $737.05, which represented 9.25 hours of work at $75 per hour and $43.30 in out-of-pocket expenses. Stewart promptly paid this bill by check on June 10, 1988. The second bill was sent August 9, 1988, and was for $817.26. The amount of time expended was 10.50 hours at $75 per hour and $29.76 in expenses for ...


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