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In re Estate of Bourne

Court of Appeals of Mississippi

August 27, 2019


          DATE OF JUDGMENT: 01/09/2018




         EN BANC.

          WESTBROOKS, J.

         ¶1. This appeal is about an attorney-fee dispute between two firms that represented Arneetria Bourne (Arneetria) and other family members of Ruth Bourne (Ruth) at different stages of their mother's wrongful death lawsuit.[1] The Jefferson Davis County Circuit Court awarded 95% of the fee to Morgan & Morgan PLLC (Morgan & Morgan) and 5% to Bailey Law PLLC (Bailey).[2] Bailey appeals. Based on our review of the record and the circuit court's opinion, we reverse and remand.


         ¶2. On April 9, 2011, Ruth suffered bilateral hip fractures from an accident while being transported by Grove Transportation. She eventually died from these injuries, and her daughter Arneetria retained the Morgan & Morgan law firm[3] in Jackson to file a civil complaint for wrongful death. According to an April 19, 2011 retainer agreement with Morgan & Morgan P.A., Arneetria agreed to pay the law firm 40% of any potential total monetary recovery, and she agreed to the contract provision that stated:

(3) If Client seeks to dismiss Attorney, Client hereby agrees that Attorney shall have a lien against any recovery by Client for any and all of Attorney's unreimbursed expenses and for reasonable attorney's fees measured by the value of the Attorney's services and the risks undertaken by Attorney.

         ¶3. Between April 2011 and March 2016, while at Morgan & Morgan, the case was assigned to three different attorneys: Joel Gatlin, John Hall, and Sam Creasy.

         1. Joel Gatlin's Work

         ¶4. There was no affidavit from Gatlin concerning the work he contributed to the case. According to Morgan & Morgan's case "Comments records, "[4] on May 13, 2011, Gatlin: spoke to the client; obtained information about the driver and the driver's employer, Grove Transportation; and, investigated the employer's contract with a company named Logisticare. He directed legal assistants to secure medical records and spoke to a person named Regina at the dialysis unit about being a witness. Shortly thereafter, Gatlin ascertained who the defendants would be. Between May 2011 and September 2012, Mr. Gatlin obtained and reviewed medical records, phoned potential experts and spoke to a loan company at Arneetria's request. He directed legal assistants to open the estate, but although Arneetria signed the petition, the estate work was not filed. Nor was any lawsuit drafted or filed. The last entry of any work Gatlin contributed to the case was in February of 2013.

         ¶5. Between February 2013 and April 2014, the Comments record reflects no legal work by an attorney, only work by legal assistants, who were primarily providing information to Arneetria's litigation loan company.[5]

         2. John Hall's Work

         ¶6. According to John Hall's affidavit, when he was assigned the case in April 2014, he immediately filed the wrongful death action. He also stated that, for the most part, paralegals took care of dealing with lienholders and preparing pleadings and discovery materials. The Comments records in 2014 and 2015 confirm that paralegals were the ones who spoke with Arneetria, answered discovery questions with her over the phone, and gave updates. The Comments records also show that legal assistants mailed discovery and provided medical records to the defense counsel.

         ¶7. Although Hall did not make entries into the Morgan & Morgan Comments record system, he claims he reviewed the complaint and discovery materials sent to the defendants, spoke with the client, prepared for and took the deposition of the driver of the transport van, and defended the depositions of Arneetria and other family members. He estimated that he spent a total of 22.5 hours on the case while at Morgan & Morgan. He also estimated that paralegals spent a total of 16.5 hours on the case. Of those paralegal hours, 6.5 were performed while he was assigned to the case, and the rest were done before and after he left. Hall left Morgan & Morgan in August 2015, and Sam Creasy inherited the case.

         3. Sam Creasy's Work

         ¶8. Sam Creasy said in his affidavit that he worked 20 hours on the case. But based on the documents in the record, it appears that he only spoke to Arneetria about the status of the case and her desire for a loan, talked to a loan company on her behalf, and exchanged two emails with defense counsel. In one email, the defense counsel asked Creasy if he had reviewed the case, and in the other dated November 2015, defense counsel discussed possible mediators. Creasy took no action on defense counsel's offer to mediate. Arneetria terminated her relationship with Morgan & Morgan in February 2016. At this point, neither party had made a settlement offer. In the nearly five years that it had the case, Morgan & Morgan had only obtained medical records, identified witnesses and parties, filed the lawsuit, exchanged written discovery and participated in four depositions - three initiated by the defense and one by the Morgan firm. Trial on the lawsuit had not been set and no estate work was filed.

         4. Attorney Bailey's Work

         ¶9. In March 2016, Arneetria hired Chynee Bailey, a solo practitioner in Columbus, Mississippi, and her law firm, Bailey Law PLLC, with whom Arneetria signed a contingency fee contract. By accepting the case, Bailey assumed the future costs and risks of the litigation. Attorney Bailey advised Morgan & Morgan of the representation and asked for its lien twice in March 2016. Attorney Bailey was advised they were working on it.

         ¶10. According to Attorney Bailey's affidavit, she spent 9 hours reviewing the file, which contained 6, 473 pages that included 2, 500 pages of medical records. She contacted the defense counsel about a scheduling order, called the court administrator for potential trial dates, and drafted a scheduling order which she said took 2 hours. She was able to get the matter set for mediation and traveled to Jackson to meet with her clients on July 18, 2016. She made a second trip on July 20, 2016, for the mediation. Between these two meetings, she said she worked 19 hours.

         ¶11. Bailey associated Hall to help with the mediation. Hall said he spent time reviewing the file, preparing the mediation memorandum, and attending the mediation with Attorney Bailey. But during the argument, the court was informed that Hall was making no personal claim for attorney fees.[6] Therefore, Hall's post-Morgan & Morgan hours would not be counted for either side.

         ¶12. Bailey settled the case at mediation for $115, 000. But in order to consummate the settlement, Attorney Bailey stated she had to open the estate and prepare the estate documents, because the estate had not been opened by Morgan & Morgan when the lawsuit was filed. Moreover, because the litigation had been pending so long, the litigation loans obtained by Arneetria now amounted to over $71, 000. Attorney Bailey had to deal with this lien as well as liens from Medicaid and Medicare. Attorney Bailey filed the estate petition and drafted the petition to determine heirship. Attorney Bailey worked 4 hours on these materials and another 6 hours negotiating with the litigation lienholder. Attorney Bailey also said she spent another 18 hours dealing with her clients through this post mediation process until they were able to get their money.[7]

         5. Fee Dispute

         ¶13. Bailey's retainer agreement with Bourne included a contingency payment of 40% of recovery for attorney fees, which totaled $46, 000. In November 2016, Bailey again contacted Morgan & Morgan for its lien. Morgan & Morgan did not respond but filed a motion to intervene in the proceedings, which the circuit court granted over Bailey's objection. Morgan & Morgan PLLC filed its complaint in intervention against Grove Transportation Company, seeking an order allowing Morgan & Morgan to interplead regarding the attorney fees, and then it filed a motion to apportion the attorney fees. Meanwhile, Bailey filed a motion for enforcement of the settlement against Grove Transportation because her clients had not been paid. Grove then paid the settlement amount and instituted an interpleader regarding the attorney fees.

         ¶14. In its motion to apportion fees, Morgan & Morgan claimed that it was entitled to 95% of the fee for its contribution to the case. In support, Morgan & Morgan provided a copy of the original retainer agreement, the Comments case records, and an affidavit of the managing attorney, Greg Bossler, who was not involved in the case but summarized what he concluded was Morgan & Morgan's contribution to the case. Morgan & Morgan also submitted a letter from Grove's counsel, summarizing from his perspective what the law firm contributed to the case, and an affidavit and letter from Paul Ott, a Jackson attorney, who opined that Morgan & Morgan was entitled to 95% of the fee. Morgan & Morgan later submitted Creasy's affidavit and a second affidavit of Bossler, who calculated that the total time paralegals spent working on the case was 39.5 hours, and total time attorneys spent working on the case was 62.5 hours (including Bossler's estimate of 20 hours for Gatlin's work time, the 22.5 hours Hall said he worked, and the 20 hours Creasy claimed he worked). Bossler also attached John Hall's Morgan & Morgan employment contract and an email that Bailey sent to the defense counsel prior to mediation saying that the "lion's share of the discovery has been done."[8]

         ¶15. In response, Bailey presented Attorney Bailey's and Hall's affidavits. To impeach Ott's opinion, Attorney Bailey attached a similar affidavit and letter Ott had written for Morgan & Morgan in another case. The letter was surprisingly similar to the one in this case; Ott had concluded that Morgan & Morgan was entitled to 95% of the fees in that case as well. Bailey also countered Ott's opinion with an affidavit of Attorney Ronald Roberts, a former chairman of the Fee Dispute Committee for the Mississippi Bar. He opined that there was no proof on key elements required under Rule 1.5(a)(1) of the Mississippi Rules of Professional Conduct, which outlines the factors to consider in arriving at a reasonable division of fees. Roberts also felt there was no basis for Morgan & Morgan to claim 95% of the fees. Utilizing John Hall's affidavit, Roberts concluded that Morgan & Morgan was entitled to $7, 687.50.

         6. Circuit Court's Opinion

         ¶16. The circuit court heard arguments on November 17, 2017. At that point, the client's portion of the settlement and the two firms' expenses had been paid. Bailey argued for the first time that Morgan & Morgan PLLC had no standing to ask for fees because the contract that Arneetria signed was with Morgan & Morgan PA, a different and separate entity from Morgan & Morgan PLLC, which had intervened and filed the motion. At the conclusion of the ...

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