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Bar-Til, Inc. v. Superior Asphalt, Inc.

Court of Appeals of Mississippi

May 9, 2017

BAR-TIL, INC. APPELLANT/CROSS-APPELLEE
v.
SUPERIOR ASPHALT, INC. AND PULL-A-PART OF JACKSON, LLC, MMC MATERIALS, INC., AND H & E EQUIPMENT SERVICES, INC. APPELLEES/CROSS-APPELLANTS

          DATE OF JUDGMENT: 09/17/2015

         HINDS COUNTY CHANCERY COURT FIRST JUDICIAL DISTRICT, HON. J. DEWAYNE THOMAS, TRIAL JUDGE

          ATTORNEYS FOR APPELLANT: CHUCK MCRAE, SETH CLAYTON LITTLE, CHRISTOPHER ANTHONY BAMBACH

          ATTORNEYS FOR APPELLEES: JOSEPH LEE ADAMS, LINDSAY THOMAS DOWDLE DONALD ALAN WINDHAM CRANE D. KIPP PATRICK VANCE DALY CORY LOUIS RADICIONI

          BEFORE GRIFFIS, P.J., ISHEE AND GREENLEE, JJ.

          GREENLEE, J.

         ¶1. This case requires this Court to decide whether a plaintiff attorney's charging lien has attached and has priority over third-party garnishors when the monies satisfying a final judgment obtained by the attorney's efforts are interpled by the garnishee into the registry of the court rather than delivered to the attorney's actual possession. With no statutory directive here, we apply common-law principles to hold that the charging lien has attached and does have priority.

         FACTS AND PROCEEDINGS BELOW

         ¶2. In 2007, Bar-Til Inc. entered into a contract with Superior Asphalt Inc. to perform work related to clearing acreage and stripping topsoil. Superior Asphalt failed to pay Bar-Til for all of the work completed. Represented by the McRae Law Firm on a contingency-fee basis, Bar-Til sued Superior Asphalt for breach of contract in 2009.

         ¶3. As a result of Superior Asphalt's failure to pay Bar-Til, Bar-Til failed to pay H&E Equipment Services Inc. H&E Equipment obtained a default judgment against Bar-Til in 2009, and in 2010 was granted permission to intervene in Bar-Til's suit against Superior Asphalt. H&E Equipment properly served a writ of garnishment against Superior Asphalt in 2012.

         ¶4. In 2012, after McRae Law Firm expended more than $16, 000 in expenses, Bar-Til won a judgment against Superior Asphalt (including interest) in the amount of $205, 839.65. Superior Asphalt did not appeal the judgment, but instead filed a motion to interplead $205, 839.65 into the registry of the court under that same cause number. Bar-Til appealed the chancellor's denial of punitive damages. While the appeal was pending in this Court, the chancellor granted Superior Asphalt's renewed motion to interplead the funds, and issued an order declaring the judgment satisfied in full.

         ¶5. In 2014, this Court issued an opinion affirming the chancellor's denial of Bar-Til's request for punitive damages. Counsel for another Bar-Til creditor, MMC Materials Inc., noticed our opinion while browsing this Court's weekly hand-down list. MMC Materials had obtained a judgment against Bar-Til in 2008 unrelated to the contract dispute between Bar-Til and Superior Asphalt. Newly aware that Bar-Til had funds available to pay its creditors, MMC Materials filed a motion to intervene and claim a portion of the interpled funds. Also around this time, MMC Materials properly served Superior Asphalt with a writ of garnishment, which Superior Asphalt answered acknowledging its debt to Bar-Til and referencing the interpled funds.

         ¶6. The McRae Law Firm also filed a motion asserting priority over the interpled funds and requesting permission to withdraw an amount representing its forty-percent contingency fee and reimbursement for expenses.

         ¶7. The interpled funds were insufficient to cover the claims of all parties. Rather than determine the respective priority of the parties, the chancery court doled out a portion of the funds to each party-including to the law firm, H&E Equipment, MMC Materials, and another individual creditor who had a judgment against Bar-Til but who had not obtained a writ of garnishment. The court awarded H&E Equipment $74, 230, MMC Materials $23, 626.08, the law firm $72, 348.20, and the other nongarnishor creditor $35, 634.81.[1] The ...


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