Decisions – Ct. of App. – Jan. 21, 2014

In the Matter of the Estate of Eubanksattorneys fees in complicated wrongful death scenario – Dane was killed in a one-vehicle accident  His mother opened an estate, was named administratrix, and hired Kihyat to represent the estate Survivors were listed as the mother, , biological father, stepfather,  a brother Seth, and a half brother Aiden.. A settlement was reached with the insurer of the driver of the truck in which Dane was killed for  the $100,000 Allstate policy limits.  Meanwhile, the bio. Dad was excluded since he had not supported Dane after Dane turned 4.  Then it turned out that Dane’s bio. father  had a son (David Jr) and daughter (Allison) by Huber.  The Estate sought to join them and attorney Perry entered an appearance to represent Huber, the mother of the half siblings.

             Kiyhat then pursued a claim against for uninsured benefits under Dane’s stepfather’s policy with Allstate. Allstate filed a dec. action in federal court and a settlement of $250,000 was reached.  Kihyat had associated attorney Castigliola to assist with the dec action.  Kihyat and Castigliola also tried, unsuccessfully,  to have the step siblings excluded from participating the  $250,000 settlement.  Eventually the chancellor divided the settlements equally among the one sibling and three half siblings and awarded  the attorneys a 40% fee.  Huber appealed the award of attorneys fees since Kihyat and Castigliola had actively worked against David Jr and Allison’s getting part of the $250,000 settlement.  Plus, neither attorney had entered into a contract with David Jr and Allison.  The Ct. of Appeals held that although they didn’t sign with the attorneys, David Jr. and Allison had benefitted from their work.  The Ct. of Appeals reversed the 40% contingency award against David and Allison and remanded so that the chancellor could take into account the hours Kihyat and Castigliola spent adverse to David Jr and Allison.  The chancellor should make a determination of a fee that reflected “legal work reasonably and necessarily incurred for the minor’s benefit and the fairness of the fee” and make specific findings in doing so.   

 Legacy Hall of Fame v. Transport Trailer Service, Inc. – whether party, who was bipolar,  was competent to enter into a settlement agreement.  The Ct. of Appeals affirmed the trial court’s finding that he was.

 Borden v. Borden – chancellor found insufficient evidence to prove adultery and denied divorce.  A GAL had been appointed after mother alleged the children showed signs of sexual abuse.  Court found no evidence of abuse and after weighing the Albright factors awarded father primary physical custody.  Mom appeals arguing that the chancellor awarded custody to father to punish mother for her extramarital communications via computer with other men.  Father appealed the chancellor’s denial of attorneys fees to him for having to defend against false allegations of abuse. Ct. of Appeals affirmed finding that the chancellor had used the Albright factors and decision was not based on mom’s Facebook communications. And chancellor did not abuse his discretion in not awarding attorneys fees to father.  Mother did not directly accuse him of abuse. 

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