At 10:00 the COA will hear Denham Law Firm v. Wrongful Death Beneficiaries of Kimberly Ann Simmons which is a dispute among attorneys for attorneys fees in a med mal wrongful death case.
54 year old Kimberly Simmons died from complications of lung cancer in April of 2011. Her family sued her doctor and his clinic claiming that her cancer should have been diagnosed after a pet scan revealed a nodule in November 2008 rather than when it was finally diagnosed in September of 2010. Suit was filed in 2012. It settled in 2015.
According to Denham, four of the wrongful death beneficiaries and heirs-at-law of Simmons retained Denham Law Firm PLLC to represent them and signed a standard 40% contingency fee contract. After the contract was signed, but before the case was resolved, Earl Denham fired Kristopher Carter and Albert Jordan after a deal in which they would buy out his firm fell through. “Unbeknownst to Denham, Carter and Jordan took the Simmons case with them, and after settlement filed a declaratory judgment action on behalf of the Simmons plaintiffs against Denham Law Firm, PLLC, to apportion attorney’s fees.” The special Chancellor granted summary judgment and held that Denham Law Firm, PLLC, was only entitled to recover a lien for hours spent on the case and costs expended based on the provision in that contract whereby the heirs terminated their services with the Denham Law Firm. Denham argues that this was error, his firm should have recovered the 40% as per the contract given the fact that Carter and Jordan never brought forward a contract between themselves and the beneficiaries.
Because the Chancellor selectively enforced the contract between Denham Law and the Beneficiaries; because the Chancellor failed to find that Carter and Jordan owed Denham Law a fiduciary duty and had breached it; because the Chancellor did not disqualify Carter and Jordan from representing the Beneficiaries, even though they were parties in interest as to the outcome and necessary and material witnesses as to the existence and terms of the alleged contract between Carter and Jordan and the Beneficiaries; and because the Chancellor did not find that the Beneficiaries had no claims against Denham Law, this Court should reverse and render the decision of the Chancellor and award the entire value of the contract to Denham Law. Be it recalled that the Simmonses neither personally appeared in the courtroom nor testified.
Denham Law Firm’s brief
Denham’s reply brief
Watch the argument here