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In re Estate of Cole

Supreme Court of Mississippi

August 23, 2018

IN THE MATTER OF THE ESTATE OF BRIAN K. COLE, DECEASED: WAYNE E. FERRELL, JR., JAMES W. NOBLES, JR., AND ANGELO J. DORIZAS
v.
GREGORY COLE, ADMINISTRATOR AND GUIDEONE SPECIALTY MUTUAL INSURANCE COMPANY

          DATE OF JUDGMENT: 05/19/2017

          JASPER COUNTY CHANCERY COURT HON. H. DAVID CLARK, II TRIAL JUDGE

          TRIAL COURT ATTORNEYS: BRIAN K. HERRINGTON, THOMAS L. TULLOS, JAMES W. NOBLES, JR., ANGELO JOHN DORIZAS, W. BRADY KELLEMS, CHUCK McRAE, BRADLEY CLAYTON MOODY, WALKER (BILL) JONES, III, ROBERT D. GHOLSON, ROBERT GORDON SPROULE, JR., J. PATRICK STRUBEL, DAVID WESLEY MOCKBEE, MICHAEL B. WALLACE, H. WESLEY WILLIAMS, III, JAMES ROBERT SULLIVAN, JR., EUGENE COURSEY TULLOS, LARRY D. MOFFETT, THEODORE J. LEOPOLD

          ATTORNEYS FOR APPELLANTS: W. BRADY KELLEMS, CHUCK McRAE

          ATTORNEYS FOR APPELLEES: BRIAN K. HERRINGTON, H. WESLEY WILLIAMS, III

          BEFORE KITCHENS, P.J., KING AND BEAM, JJ.

          KING, JUSTICE.

         ¶1. Brian Cole's Estate had a court-approved contingency fee contract with Eugene Tullos, and only Eugene Tullos, to represent the Estate in wrongful death litigation. The Ferrell Group claims that this contract renders it an interested party entitled to notice of the Estate's final accounting under Mississippi Code Section 91-7-295. The trial court found that the Ferrell Group was not an interested party pursuant to the notice statute. Because the Ferrell Group did not probate a claim or have a contract with the Estate, or otherwise show a direct pecuniary interest in the Estate, this Court affirms the trial court's judgment as to Section 91-7-295.

         FACTS & PROCEDURAL HISTORY[1]

¶2. Brian Cole was killed in a motor vehicle accident in 2001. On May 13, 2002, the chancery court entered an order approving the hiring of Eugene Tullos to represent Cole's Estate in ongoing wrongful death litigation against Ford Motor Company. The court granted the Estate leave to join the wrongful death litigation, and approved the contingency fee contract between Tullos and the Estate. At some point during the wrongful death litigation, Tullos apparently associated other attorneys, including the appellants Wayne Ferrell, James Nobles, Jr., and Angelo Dorizas ("The Ferrell Group"). The record contains no court order approving these attorneys to represent the Estate. The wrongful death litigation ultimately ended with a large settlement, and the attorneys and beneficiaries disputed the distribution of the proceeds. During the wrongful death litigation, GuideOne Insurance Company advanced more than $200, 000 toward litigation expenses on behalf of the Estate.[2] GuideOne Insurance Company filed the only creditor claim against the Estate after notice to creditors was published pursuant to Mississippi Code Section 91-7-145.

         ¶3. On June 6, 2011, the chancery court ordered a partial distribution of the settlement proceeds, representing "a compromise of undisputed issues[.]" It ordered a payment to the Estate and qualified it only by stating that the amount would be "placed in the Estate account pending further Orders of this Court." The attorneys involved also received partial distributions in the June 2011 court order. The court found that, after distribution, "all other and further remaining funds in said account shall there remain until further Orders of this Court pending the resolution and final disposition of the remaining issues."

         ¶4. The current attorney for the Estate, Brian Herrington, [3] negotiated with GuideOne regarding its creditor claim, and settled with GuideOne for an amount less than the distribution made to the Estate. The administrator of the Estate petitioned to close the Estate, and the chancery court granted that petition on April 25, 2016. The amount left from the distribution to the Estate after the GuideOne payment had been made was distributed in equal shares among all heirs-at-law.

         ¶5. On May 6, 2016, the Ferrell Group filed a Petition to Set Aside or Amend Order Closing Estate and Providing Other Relief or in the Alternative Motion to Reconsider. It claimed that it was an interested party and that the Estate was required to give it notice of the petition to close, because of "its" contract with the Estate. The contract on which it relies is the contract between the Estate and Tullos, and only Tullos, approved by the May 2002 court order. The Ferrell Group argued it should be allowed to assert its contingency fee contract with the Estate. In the alternative, it requested the court order that it is entitled to forty percent of the remainder of the distribution.

         ¶6. The chancery court found that the Ferrell Group was not an interested party entitled to notice. It relied on a transcript of a January 2011 hearing[4] regarding the partial settlement distributions, and stated that it was "abundantly clear from the representations made to the court . . . that as of January 24, 2011, neither 'The Ferrell Group,' nor any other attorney involved in the prosecution of the litigation on behalf of the Cole wrongful death heirs against Ford Motor Company or any other defendant expected to receive any fees whatsoever from the paltry funds set aside to the Estate of Brian K. Cole." It further found that none of these attorneys, including Tullos, performed any services for the Estate after January 24, 2011. Thus, the ...


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