Decisions -MSSC – 8/23/2018

Hand down list

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 Companyattorneys lien – Brian Cole was killed in an auto accident in 2001. His estate hired Eugene Tullos to sue Ford.  The court approved Tullos’ representation.  Tullos associated Wayne Ferrell, James Nobles, and Angelo Dorizas. The wrongful death case was eventually settled for a large amount. The attorneys received partial distributions. In 2016, the court granted the administrator’s motion to close the estate. The associated attorneys moved to reopen the estate claiming that they were interested parties who should have been given notice of the petition to close. Alternatively, they requested 40% of the remainder of the distribution. The chancellor denied relief.  The MSSC affirms finding that the attorneys did not show that they had a direct pecuniary interest i the estate and were not entitled to notice pursuant to MCA Sect. 91-7-295.

Terry L. Hill  v. State of Mississippiright to counsel of choice – Terry L. Hill was convicted  of  one count of robbery, two counts of kidnapping, and one count of sexual battery involving a student at MSU.  Hill was appointed an attorney to represent him, Stephanie Mallette. She  moved to withdraw on the grounds that Hill was not indigent and wanted to hire his own attorney.  At the hearing, Hill stated he wanted another attorney appointed to represent him. The trial court denied the request.  Hill twice more demanded a new attorney.  When questioned, though, Hill said he was fine with Mallette.   When voir dire concluded, Hill informed the court he no longer wanted Mallette as his attorney and requested a continuance.  After a few minutes, though, he said he would continue with Mallette.  After the first witness testified, Hill  insisted he be allowed to represent himself. The court declared that Mallette would be stand-by counsel.    A little while later, Mallette asked if she could be allowed to sit somewhere other than next to Hill because he was acting improperly.  Thereafter bailiffs were stationed near Hill. On appeal Hill argues that the court erred in not allowing Mallette to withdraw and granting a continuance to allow him to obtain new counsel.  The MSSC affirms. “Because of the defendant’s actions prior to and at trial, and because of the substantial evidence against Hill, we affirm the decision of the trial court.”
In the Matter of the Estate of Dane Richard Eubanks, Deceased: Cecilia Eubanks, Individually and as Administratrix of the Estate of Dane Richard Eubanks, Deceased v. Kathy May Huber, as Parent and Legal Guardian for and on Behalf of David Randall – attorneys fees –   attorneys fees for amounts collected for non-signatories to contract to employ attorney in wrongful death case –  In 2006, sixteen-year-old Dane Eubanks was killed in an automobile accident. His mother, Cecilia Eubanks, signed a contingency-fee contract with  David Kihyet to file a wrongful-death suit. Cecelia was made administratrix and the contract with Kihyat was approved.  Allstate offered to settle the case for  $100,000.  The settlement was approved and shared among the heirs.  Cecilia then filed an uninsured-motorist claim under the former stepfather’s commercial-vehicle insurance policy with Allstate, arguing that Dane was a “foster child” under that policy.  That case was settled for $250,000. The chancery court  divided that settlement equally among the heirs/wrongful death beneficiaries. The court also awarded 40% attorneys’ fees to Kihyet and the attorney he associated, Castigliola. The half siblings appealed arguing that they should not have to pay attorneys fees pursuant to a contract they did not sign. The COA  affirmed the attorneys fee award. Estate of Eubanks v. Eubanks, 197 So. 3d 878, 893-94 (Miss. Ct. App. 2014). On cert., the MSSC affirmed the division of the settlement but four justices opined that the elements of quantum meruit were not met. Four justices opined that quantum meruit was warranted, but would remand the case to the trial court for it to deduct any attorneys’ fees incurred in pursuing positions adverse to Allison and David Jr.  On remand, the chancellor found that the elements of quantum meruit were not met with respect to the half siblings. The estate appealed and the MSSC reverses finding that the chancellor was supposed to consider quantum meruit only if it found that the half siblings should not be bound by the contingency fee contract. But it was error to deny the attorneys any fees from the amounts collected by the two half siblings.

The chancery court abused its discretion by reversing course on the quantum meruit issue without the findings of fact it was specifically ordered to make. The factors of quantum meruit do appear from the record to be met in this case, and the chancery court must make detailed findings on remand regarding its decision on quantum meruit, whether it decides the quantum meruit factors are met or are not met.

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