Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Denham Law Firm, PLLC v. Wrongful Death Beneficiaries And Heirs-At-Law of Kimberly Ann Simmons

Court of Appeals of Mississippi

January 3, 2017

DENHAM LAW FIRM, PLLC APPELLANT
v.
WRONGFUL DEATH BENEFICIARIES AND HEIRS-AT-LAW OF KIMBERLY ANN SIMMONS, DECEASED: DAVID MICHAEL NELSON AS ADMINISTRATOR OF THE ESTATE OF KIMBERLY ANN SIMMONS; DAVID ANTHONY NELSON; SAVANNAH SIMMONS; MISTY LOPER; SHANNON SIMMONS; RACHEL BENEFIELD AND TERESSA NICOLE NELSON, A MINOR, BY AND THROUGH HER GUARDIAN, SHERYL PHILLIPS APPELLEES

          DATE OF JUDGMENT: 03/19/2015

         COURT FROM WHICH APPEALED: JACKSON COUNTY CHANCERY COURT HON. HOLLIS MCGEHEE TRIAL JUDGE.

          ATTORNEYS FOR APPELLANT: EARL L. DENHAM ALEXANDER IGNATIEV MATTHEW PAUL PAVLOV.

          ATTORNEYS FOR APPELLEES: KRISTOPHER W. CARTER ALBERT R. JORDAN IV.

          BEFORE IRVING, P.J., CARLTON AND GREENLEE, JJ.

          CARLTON, J.

         ¶1. The six wrongful-death beneficiaries and heirs-at-law of Kimberly Simmons settled a wrongful-death lawsuit and then filed the instant action to determine the fees and costs owed to Denham Law Firm PLLC under contingent-fee contracts signed by four of the beneficiaries.[1] In their declaratory-judgment complaint filed in Jackson County Chancery Court, the beneficiaries sought a determination of the rights and money owed under the contingent-fee contracts. The beneficiaries claimed that the contracts' attorney's lien provision for the value of services actually performed at Denham Law's normal hourly rates and for all the firm's costs applied rather than the contracts' contingency-fee provision.

         ¶2. The beneficiaries subsequently filed a motion for partial summary judgment. They argued that no genuine issue of material fact existed as to the applicability of the contracts' attorney's lien provision. They also asserted that no genuine issue of material fact existed as to the calculation of the attorney's lien as defined by the terms of the contracts.

         ¶3. In granting partial summary judgment to the beneficiaries, the chancellor found that four of the six beneficiaries entered into contingent-fee contracts with Denham Law. The chancellor further found that the beneficiaries then terminated the firm's representation. The chancellor also determined that the beneficiaries' termination of Denham Law's representation triggered the attorney's lien provision in the contracts. In interpreting the contracts' terms, the chancellor applied the attorney's lien provision that provided reimbursement for actual services performed at normal hourly rates and for actual costs. The chancellor then concluded that Denham Law's attorney's fees amounted to $10, 708.64 and that its costs amounted to $14, 791.05. The chancellor denied Denham Law's motion to reconsider or to alter or amend the grant of partial summary judgment, and Denham Law appeals to this Court.

         ¶4. On appeal, Denham Law raises the following issues: (1) whether the chancellor erred by finding that the beneficiaries had standing to sue Denham Law; (2) whether the chancellor erred by modifying the contract terms between Denham Law and the beneficiaries; (3) whether the chancellor erred by not finding that the beneficiaries' attorneys breached a fiduciary duty to Denham Law; and (4) whether the chancellor erred by not disqualifying the beneficiaries' attorneys from representing the beneficiaries in this case.

         ¶5. Upon review of the chancellor's grant of partial summary judgment, we find no evidence in the record to support the chancellor's determination that the beneficiaries terminated Denham Law. Due to the lack of such evidence, we find the record reflects a dispute of material fact as to whether the contracts' attorney's lien provision applied.[2] As a result, we reverse the chancellor's judgment and remand the case for further proceedings consistent with this opinion.[3]

         FACTS

         ¶6. On October 20, 2010, Simmons hired Denham Law to represent her in a medical- malpractice lawsuit. Earl Denham, Denham Law's president and partner, stated in his affidavit that Simmons chose his firm due to Denham Law's advertising and reputation. After Simmons died on April 21, 2011, four of her six beneficiaries entered into contingent-fee contracts with Denham Law to represent them in the derivative wrongful-death lawsuit. Each of the four contracts contained the following language:

I do hereby assign, convey, transfer, and deliver unto said [a]ttorneys as their fees . . . an undivided [f]orty [p]ercent (40%) interest in and to all of my above[-]mentioned claim and all sums which may be recovered on my behalf. It is my said attorney's sole discretion as to when suit shall be filed. This contract does not bind either party with regard to appeal, and in fact[, ] the attorneys specifically have no responsibility to file any postjudgment pleadings. It is understood and agreed that[, ] in addition to [a]ttorney['s] fees, all costs and expenses of this litigation will be reimbursed to my [a]ttorneys by me on my claim at the time of settlement. It is further understood and agreed that my [a]ttorneys may act as co-counsel or associate with any other attorney at no extra cost to me at my [a]ttorneys' sole discretion.
I do hereby grant to Denham Law . . . an attorney's lien for the value of its services actually performed at its normal hourly rate and for all its costs, advances, and expenses of whatever nature in connection with my claim, including but not limited to [the] fees of associates and paralegals. Any proceeds that I receive from my litigation will be delivered in a check or draft payable to the firm of Denham Law . . . and to me, jointly, to secure payment of the firm's attorney's lien. This paragraph shall survive any termination of this contract for any reason.

         (Emphasis added).

         ¶7. According to Denham's affidavit opposing summary judgment, his firm utilized its own resources to obtain the expert opinions and the research needed to prepare the lawsuit. Denham also stated that it was his firm's advertising and reputation that initially secured this case. The record reflects no dispute as to Denham's statement in his affidavit that his firm filed the lawsuit in Harrison County Circuit Court on August 22, 2012. The lawsuit was later removed to federal court on January 7, 2013. Following their termination around September 12, 2013, Kristopher Carter and Albert Jordan left Denham Law and began their own law firm. Thus, the parties agree that, at the time Denham Law filed the lawsuit on the beneficiaries' behalf, Carter and Jordan both worked as attorneys for Denham Law. The parties also agree that Carter, as an employee of Denham Law, worked on both the medical-malpractice lawsuit and the subsequent wrongful-death case.

         ¶8. After terminating Carter and Jordan, Denham traveled to Ohio for heart surgery. In his affidavit, Denham asserted that, during this time, two or more of his employees "removed confidential firm information, including case file information and forms [that] had been developed with considerable expense to the firm over many years[, ] and [the employees] delivered [the material] to Carter and Jordan, who continue to use [the information] in their own practice." On appeal, Denham asserted during oral argument, as he did in his affidavit, that the removal of information from his office was done without his authorization or agreement. Denham further claims that Carter and Jordan removed the file for the present case from Denham Law without the agreement or consent of Denham Law. The beneficiaries submitted no evidence to contradict or dispute Denham's affidavit.

         ¶9. After their departure from Denham Law, Carter and Jordan obtained a settlement offer in federal court on the beneficiaries' wrongful-death action. The beneficiaries then placed the instant matter before the chancery court by filing their declaratory-judgment action on July 23, 2014, to determine the amount owed to Denham Law under the firm's contingent-fee contracts with four of the beneficiaries. The declaratory-judgment complaint asserted that the four beneficiaries who initially engaged Denham Law had terminated the firm's representation, and then all six of the beneficiaries had signed contracts with Carter and Jordan's firm. As previously stated, however, the record before this Court contains no evidence to show that the beneficiaries terminated Denham Law's representation.

         ¶10. The beneficiaries further alleged in their complaint that Denham Law refused to provide the amount of the attorney's lien that the firm claimed against the beneficiaries' settlement proceeds. The beneficiaries therefore asked in their complaint that the chancellor apply the attorney's lien provision of the contingent-fee contracts and determine the amount of the attorney's lien to which Denham Law was entitled. The beneficiaries also requested in their complaint that the chancellor award attorney's fees based on Denham Law's alleged refusal to honor the lien clause contained in the contingent-fee contracts.

         ¶11. In response to the beneficiaries' July 23, 2014 declaratory-judgment complaint, Denham Law filed a pre-answer motion on July 31, 2014, that sought the following: (1) dismissal of the beneficiaries' complaint under Rule 12(b)(6) of the Mississippi Rules of Civil Procedure for failure to state a claim upon which relief could be granted; (2) dismissal of the beneficiaries' complaint due to the beneficiaries' lack of standing; (3) disqualification of Carter and Jordan as the beneficiaries' attorneys; (4) sanctions against Carter and Jordan under Rule 11 of the Mississippi Rules of Civil Procedure; (5) damages against Carter and Jordan under the Litigation Accountability Act; and (6) all other appropriate sanctions and relief.[4]

         ¶12. On August 4, 2014, the Mississippi Supreme Court appointed a special judge to hear the matter. On August 25, 2014, Denham Law filed its responses to the requests for admission propounded by the beneficiaries. The following month, on September 15, 2014, the beneficiaries filed a motion for partial summary judgment. The beneficiaries asserted that no genuine issue of material fact existed as to whether the terms of Denham Law's contracts with four of the beneficiaries defined the proper calculation method of the attorney's lien. As a result, the beneficiaries sought summary judgment on that issue.

         ¶13. On September 22, 2014, Denham Law filed another motion seeking to disqualify Carter and Jordan as the beneficiaries' attorneys. As in its earlier motion filed on July 31, 2014, Denham Law again asserted that Carter and Jordan were material witnesses in the matter and that the chancellor should therefore disqualify them from representing the beneficiaries. As also argued in the July 31, 2014 motion to dismiss, Denham Law claimed that the beneficiaries possessed no cause of action against the firm, possessed no standing to sue, and had suffered no damages. Significant to the procedural posture of this case, the chancellor issued no ruling on Denham Law's motion to dismiss the beneficiaries' complaint for lack of standing until he granted the beneficiaries partial summary judgment.[5] The chancellor's grant of the dispositive motion requesting partial summary judgment is the subject of the instant appeal.

         ¶14. On October 16, 2014, the chancellor entered an order denying Denham Law's motions to disqualify the beneficiaries' attorneys, for sanctions under Rule 11, and for damages under the Litigation Accountability Act. However, as stated, the chancellor issued no ruling at that time on either Denham Law's motion to dismiss for lack of standing or its motion to dismiss for failure to state a claim under Rule 12(b)(6). Instead, the chancellor ruled on these bases of Denham Law's motion to dismiss when he granted the beneficiaries partial summary judgment.

         ¶15. The chancellor executed his order granting partial summary judgment on January 19, 2015, and the chancery clerk entered the order on January 22, 2015. In the summary-judgment order, the chancellor found the beneficiaries possessed standing to sue Denham Law in this matter. The chancellor determined that, because the beneficiaries had terminated Denham Law's representation, the attorney's lien contained in the contracts between Denham Law and the four beneficiaries applied to define the calculation of Denham Law's attorney's lien. Based on his findings, the chancellor concluded that, under the terms of the lien provision in the contracts, Denham Law was entitled to "the value of its services actually performed at its normal hourly rate and for all its costs, advances, and expenses of whatever nature in connection with the claim, including but not limited to [the] fees of associates and paralegals."

         ¶16. On February 2, 2015, within ten days of the entry of the chancellor's judgment, Denham Law filed an unsuccessful motion to reconsider the chancellor's judgment or to alter or amend the chancellor's judgment pursuant to Rule 59 of the Mississippi Rules of Civil Procedure. In his final judgment, the chancellor affirmed his prior ruling finding that the terms of the contracts between Denham Law and the beneficiaries defined the proper calculation method of Denham Law's attorney's lien. The chancellor further acknowledged that the parties had agreed that Denham Law's itemized attorney's fees amounted to $10, 708.64 and that its costs amounted to $14, 791.05. As a result, the chancellor granted Denham Law an attorney's lien for each of these amounts. Aggrieved by the chancellor's ruling, Denham Law appeals.

         STANDARD OF REVIEW

         ¶17. With regard to a motion to reconsider, this Court has previously stated:

The Mississippi Rules of Civil Procedure provide two avenues to move the trial court to reconsider its judgment. The aggrieved party may (1) file a motion for a new trial or to alter or amend under Rule 59 or (2) file for a relief from a final judgment under Rule 60(b). The timing of the motion to reconsider determines whether it is a Rule 59 or Rule 60(b) motion.
A motion to reconsider filed within ten days of the entry of the judgment falls under Rule 59 and tolls the thirty-day time period to file a notice of appeal until the disposition of the motion. Consequently, a notice of appeal following the denial of a Rule 59 motion to reconsider ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.