Kathy May Huber v. Cecilia Eubanks , 2015 Miss. LEXIS 83 ( 2015 )

IN THE SUPREME COURT OF MISSISSIPPI
NO. 2012-CT-00030-SCT
IN THE MATTER OF THE ESTATE OF DANE
RICHARD EUBANKS, DECEASED: KATHY MAY
HUBER, AS PARENT AND LEGAL GUARDIAN
FOR AND ON BEHALF OF DAVID RANDALL
EUBANKS, JR.
v.
CECILIA EUBANKS, INDIVIDUALLY AND AS
ADMINISTRATRIX OF THE ESTATE OF DANE RICHARD
EUBANKS, DECEASED
ON WRIT OF CERTIORARI
DATE OF JUDGMENT: 11/22/2011
TRIAL JUDGE: HON. JAYE A. BRADLEY
TRIAL COURT ATTORNEYS: VINICENT J. CATIGLIOLA, JR
DAVID E. KIHYET
WILLIAM C. GRIFFIN
AMANDA QUAVE
COURT FROM WHICH APPEALED: JACKSON COUNTY CHANCERY COURT
ATTORNEYS FOR APPELLANT: TREVOR BRUCE ROCKSTAD
MATTHEW STEPHEN LOTT
ATTORNEYS FOR APPELLEE: VINCENT J. CASTIGLIOLA, JR.
BETTY CAROLINE CASTIGLIOLA
NATURE OF THE CASE: CIVIL - WILLS, TRUSTS, AND ESTATES
DISPOSITION: AFFIRMED IN PART; REVERSED IN PART
AND REMANDED - 02/12/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
DICKINSON, PRESIDING JUSTICE, FOR THE COURT:
¶1. Attorneys representing the administratrix of an estate settled wrongful-death claims
under two insurance policies without filing a wrongful-death lawsuit. The proceeds of the
settlement of the first policy were distributed equally to the wrongful-death beneficiaries.
The attorneys submitted the proceeds of the second policy to the chancery court and moved
for an unequal distribution, arguing that two half-siblings should recover nothing or, if
allowed to recover, less than the three other claimants.
¶2. The chancellor determined that the half-siblings were entitled to recover, and that she
had no authority to apportion the wrongful-death settlement proceeds unequally. She divided
the proceeds equally among the wrongful-death beneficiaries after awarding attorneys’ fees
of forty percent of the amount of recovery. Two of the beneficiaries argued that they should
not be required to pay attorneys’ fees because the attorneys had made numerous attempts,
first to exclude them from any recovery, and then to reduce their share.
¶3. The Court of Appeals affirmed the chancellor’s determination that the half-siblings
were entitled to an equal distribution but remanded for factual findings on the amount of
attorneys’ fees they should be required to pay.1 We agree with the Court of Appeals and the
trial court that the proceeds must be equally divided. On the issue of attorney fees, four
justices on this Court would hold that, because the attorneys had an actual conflict of interest
with the half-siblings and acted adverse to their interests; and because they could not satisfy
the requirements for quantum meruit, they were not entitled to recover any attorneys’ fees
from the half-siblings shares. Four justices would affirm the Court of Appeals.
FACTS AND PROCEDURAL BACKGROUND
1
Estate of Eubanks v. Eubanks, No. 2012-CA-00030-COA, 2014 WL 211730, at
*2 (Miss. Ct. App. Jan. 21, 2014).
2
¶4. The facts necessary to adjudicate the issues presented are not in material dispute. In
2006, sixteen-year-old Dane Eubanks was killed in an automobile accident. His mother,
Cecilia Borries, contracted with David E. Kihyet Sr. to:
provide legal services in connection with a Wrongful Death occurring on
February 28, 2006 in Jackson County Mississippi, Law Firm shall provide
those legal services reasonably required to represent Client . . . .
Cecilia agreed to pay Kihyet a $5,000 retainer and $150 per hour and, should additional
insurance be found, “forty-percent (40%) of all monies or equivalent collected in the event
of settlement or trial” in lieu of the hourly rate. The contract between Cecilia and Kihyet did
not purport to grant Kihyet the authority to represent anyone other than “Client”—defined
in the contract as Cecilia Borries.
¶5. After she was appointed administratrix of Dane’s estate, Cecilia petitioned the
chancery court to approve “the Legal Contract between the Petitioner [Cecilia, as
“Administratrix of the Estate of DANE RICHARD EUBANKS”] and the Honorable DAVID
E. KIHYET, SR.” No mention was made of the wrongful-death beneficiaries.
¶6. At the time of his death, Dane was unmarried and had no children, so any distribution
of the statutory wrongful-death damages must be distributed in equal shares to the second tier
of statutory wrongful-death beneficiaries, which includes his mother, father, sisters and
brothers, including half-blood siblings.2 Because Dane’s father had played no role in Dane’s
life, Kihyet filed a motion seeking to terminate his parental rights and to preclude him from
sharing in the wrongful-death benefits.
2
Miss. Code Ann. § 11-7-13 (Rev. 2004).
3
¶7. On August 7, 2008, the chancellor granted the motion, declaring that David’s parental
rights were terminated, and that he was “precluded, enjoined[,] and restrained from being a
beneficiary of any Wrongful Death proceeds that may be recovered due to the wrongful death
of DANE RICHARD EUBANKS.” Because no appeal was taken from this ruling, we shall
not address it.
¶8. At this point, Cecilia and Kihyet learned of the possibility that Dane’s father had
fathered two children—David Eubanks Jr. and Allison Eubanks—with Kathy May Huber.
On December 12, 2008, Huber made an appearance in the chancery court proceedings
through counsel, Jane Perry, on behalf of David Jr. and Allison. A DNA test confirmed that
David Jr. and Allison were David Sr.’s children and Dane’s half-siblings.
¶9. So Dane’s statutory wrongful-death beneficiaries at the time of his death were his
mother, Cecilia, his father, David Eubanks (whom the chancellor had precluded from
recovery), a brother, Seth, a maternal half-brother, Aiden Borries, and a paternal half-brother,
David Eubanks Jr. and half-sister, Allison Eubanks.
¶10. On March 11, 2009—after obtaining a chancery-court determination of Dane’s
wrongful-death beneficiaries (Cecilia, Seth, Aiden, David Jr., and Allison), but before filing
a wrongful-death lawsuit—Kihyet reached a settlement in the amount of $100,000 with
Allstate Insurance Company, the tortfeasor’s liability insurance carrier. This settlement was
approved by the chancellor on September 29, 2009. From the $100,000 proceeds, Kihyet
received $40,000 in attorney fees, and the remaining funds, after payment of expenses, were
equally distributed to Dane’s wrongful-death beneficiaries, as determined in the chancellor’s
4
March 11, 2009 order. The distribution of these settlement proceeds is not at issue in the
case before us.
¶11. Meanwhile, Cecilia—who was married to Dane’s stepfather, Kenneth Borries—filed
an uninsured-motorist claim against her husband’s commercial-vehicle insurance carrier,
Allstate, claiming that Dane was covered as a “foster child” under that policy. Allstate
disagreed and filed a declaratory-judgment action in the United States District Court for the
Southern District of Mississippi, asking the court to declare that no uninsured-motorist
coverage existed for Dane under Borries’s Allstate policy. The Estate and Cecilia filed a
counterclaim arguing that Dane was covered by Borries’s policy and that he was entitled to
uninsured/underinsured-motorist insurance coverage.
¶12. Kihyet associated Vincent Castigliola Jr. as cocounsel to assist with the uninsured-
motorist litigation against Allstate. Kihyet shared with Castigliola the $40,000 fee already
collected under the $100,000 policy and agreed to split future attorneys’ fees. The matter
proceeded in federal court, with the Allstate attorneys battling Kihyet and Castigliola. We
think it important to point out that Cecilia’s attorneys never claimed to be representing David
Jr.’s or Allison’s interests. During a later argument before the chancellor, Castigliola stated:
I represented as co-counsel with Mr. Kihyet the administratrix of the estate and
Cecilia was sued individually and the pleadings are attached more than once
as exhibits. My representation dealt with the defense of the declaratory
judgment action and the counterclaim directly asserted against Allstate
Indemnity Company . . . .
¶13. Cecilia and Allstate eventually agreed to settle the matter for $250,000. But when the
settlement was referred to the chancery court for approval and distribution of proceeds,
Cecilia’s attorneys strenuously objected to an equal distribution of the proceeds.
5
¶14. First, they argued that the DNA test results had been presented too late to satisfy
Section 91-1-15’s statute of limitations to establish paternity. The chancellor, later finding
the statute was satisfied because David Sr. was listed as the father on David Jr.’s and
Allison’s birth certificates, rejected this argument.
¶15. Next, they argued that the matter in federal court was not related to a wrongful-death
claim, and that the proceeds of the settlement were not for a wrongful-death claim. In
representing to the chancellor that he did not recall the settlement being a wrongful-death
settlement, Mr. Castigliola stated:
Nor do I recall any discussion regarding a settlement of any and all claims.
What we[were] there to settle was simply what was the relief sought. This was
a declaratory judgment action, it named only Cecilia Eubanks, individually and
as an administratrix of the estate. It did not refer to her as a wrongful death
representative. And it just is what it is.
¶16. Next, realizing the chancery court previously had adjudicated David Jr. and Allison
to be wrongful-death heirs in connection with the $100,000 settlement, Castigliola filed a
motion to set aside the previous adjudication of wrongful-death heirs and exclude David Jr.
and Allison. Castigliola also took the position that, even if David Jr. and Allison were
wrongful-death beneficiaries, all of the proceeds should go to the estate,which would exclude
David Jr. and Allison, who, even if they were wrongful-death beneficiaries, were not heirs
to the estate.
¶17. In advancing these positions, Cecilia and the Estate sought clarification from the
federal court as to what claims the federal court case and settlement encompassed. The
federal court found that there was a valid meeting of the minds to settle “all of the claims by
the Estate which included a later division by the Estate to the five adjudicated heirs and
6
wrongful death beneficiaries.” It further found that “how the proceeds are divided within the
Estate is left to be determined by the Chancery Court.”
¶18. Castigliola then urged the chancery court to recognize and adjudicate claims for
Cecilia, Seth, and Aiden for loss of society and companionship. This would result in a larger
distribution for them at the expense of David Jr. and Allison.
¶19. The chancellor rejected all of these arguments and divided the settlement proceeds
equally among Cecilia, Seth, Aiden, Allison, and David Jr. The chancellor held that any
attempt by the chancery court to divide the settlement unequally “would remove this matter
from the purview of the Chancery Court as such matters are ‘as the jury may determine . .
. .’”
¶20. The chancellor also found that, while David Jr. and Allison were not bound by the
contingency fee contract, they had benefitted from the attorneys’ work on the settlement.
She determined the amount of attorneys’ fees that David Jr. and Allison would owe Kihyet
and Castigliola based upon quantum meruit would greatly exceed the forty-percent
contingency fee, so she held that a forty-percent fee was “reasonable and more beneficial to
the children than a quantum meruit based calculation.”
¶21. Huber appealed the award of attorneys’ fees against David Jr. and Allison, and Cecilia
and the Estate cross-appealed, arguing that the chancellor erred by dividing the settlement
equally between the wrongful-death beneficiaries. The Court of Appeals affirmed the
chancery court’s decision to divide the settlement equally between the wrongful-death
beneficiaries, but reversed the chancellor on the issue of attorneys’ fees, and remanded for
further proceedings for the chancellor to determine entitlement to the claimed fee and to
7
provide express findings in support thereof.3 The Court of Appeals further held that any
award should also be supported by findings sufficiently distinguishing the legal costs
incurred by Castigliola and Kihyat in pursuing legal matters adverse to David Jr. and Allison
in the federal court action relating to the Allstate settlement of the second wrongful-death
claim.4
¶22. Judge Roberts, concurring in part and dissenting in part, argued that “the chancellor
did have jurisdiction to divide the settlement” and that the chancellor should “hear evidence
from the beneficiaries and properly divide the settlement among the wrongful-death
beneficiaries.” 5
¶23. The Estate filed a petition for writ of certiorari with this Court, arguing that Court of
Appeals decision was in error. We granted certiorari to elaborate on our decision in Long
v. McKinney.6
ANALYSIS
I. Whether, after a wrongful-death claim has been decided by a jury,
or has been settled, a chancellor has authority to entertain a new
claim for loss of society and companionship.
¶24. This Court was crystal clear in Long v. McKinney that the chancery court’s
jurisdiction in wrongful-death litigation may be invoked in only three instances: (1) for
opening the decedent’s estate so that beneficiaries may pursue a wrongful-death claim in the
3
Estate of Eubanks, 2014 WL 211730 , at *14.
4
Id.
5
Id. at *15 (Roberts, J., concurring in part and dissenting in part).
6
Long v. McKinney, 897 So. 2d 160, 174-176 (Miss. 2004).
8
circuit court; (2) for the approval or rejection of a minor’s wrongful-death settlement; and
(3) to determine wrongful-death beneficiaries.
¶25. No authority exists for a party to file a new wrongful-death claim for damages in the
chancery court, nor is there authority for a chancellor to apportion individual claims for loss
of society and companionship.7 For these reasons, we must reject any notion that the
chancery court in this case had the power to consider and divide the damages for loss of
society and companionship unequally. As we stated in Pannell v. Guess, a case directly on
point, “the chancellor had no choice but to distribute the insurance settlement proceeds . . .
[to the wrongful-death beneficiaries], equally.” 8
¶26. When a wrongful-death case has concluded by jury verdict or settlement, the proceeds
must be divided according to the jury’s verdict or the terms of the settlement agreement. And
where no provision is made for any award for loss of society and companionship, a
chancellor who is asked to distribute the proceeds must distribute them according to the
terms that were decided by the jury or, as here, by the parties to the settlement. Parties
wishing to pursue a claim for loss of society and companionship must do so before settling
the case.
¶27. A chancellor has no choice but to distribute the funds equally. 9 Had this case been
tried in circuit court, with a jury award to one of the parties for loss of society and
7
Id. at 174-176 (Miss. 2004).
8
Pannell v. Guess, 671 So. 2d 1310, 1314 (Miss. 1996).
9
Id.
9
companionship, or had the parties settled with an agreement to such an award, then the
chancellor certainly could distribute the proceeds accordingly.10
II. Whether Long v. McKinney held unconstitutional or “odious”
Section 11-7-13’s provisions concerning the division of damages.
¶28. In his dissent, my learned and esteemed colleague, Justice Kitchens, incorrectly
reports that, in Long, we “[o]stensibly” found “the equal distribution of loss of society and
companionship damages to be constitutionally odious.” We did not.
¶29. In Long, this Court recognized that Section 11-7-13 requires an equal division among
the wrongful-death beneficiaries of all damages the decedent could have recovered for
negligent acts “as would, if death had not ensued, have entitled the party injured or damaged
thereby to maintain an action and recover damages in respect thereof . . . ,” such as the net
present value of the decedent’s life, medical expenses, pain and suffering, and lost wages.11
¶30. But we also noted that “all parties interested may join in the suit;” that “there shall be
but one (l) suit for the same death which shall ensue for the benefit of all parties concerned;”
and “in such action the party or parties suing shall recover such damages allowable by law
as the jury may determine to be just, taking into consideration all the damages of every kind
to the decedent and all damages of every kind to any and all parties interested in the suit.” 12
¶31. We did not speak to the constitutionality of these provisions. But we did interpret the
statute to mean that the wrongful-death damages must be divided equally among the
10
See Long, 897 So. 2d at 169 (“The beneficiaries are entitled to recover for their
respective claims of loss of society and companionship.”).
11
Id. at 168 (citing Miss. Code Ann. § 11-7-13).
12
Long, 897 So. 2d at 168 (emphasis added).
10
wrongful-death beneficiaries, and that individual damages due to a particular party may be
recovered by that party. Our interpretation in Long of the statutory provisions concerning
the division of damages is best understood by way of an example.
¶32. Suppose a defendant caused the wrongful death of a man who left behind two
wrongful-death beneficiaries—a wife who had lived with him for fifty years and cared for
him day and night during his final illness, and a forty-year-old son who hated his father and
had not visited, called, or seen him in twenty years. And further suppose a jury returned a
verdict of $1 million in wrongful-death damages for the man’s pain, suffering, lost wages,
and the net-present value of his life, plus an award of $500,000 to his wife for her loss of
society, companionship, and consortium. All agree the statute requires that the wife and son
must equally share the $1 million in wrongful-death damages. But Justice Kitchens
interprets Section 11-7-13 to require that the wayward son, who cared nothing for his father,
receive half the money the jury awarded the man’s wife for her individual loss of society,
companionship, and consortium. Long interpreted the statute otherwise.
¶33. Our discussion of the constitutionality of previous interpretations of Section 11-7-13’s
procedural requirements—which had nothing to do with the division of damages—began
with the following:
The case before us should be, procedurally at least, an uncomplicated case.
However, previous attempts to interpret the procedural provisions of our
Statute have complicated wrongful death litigation, and have provided our trial
judges and trial bar with unnecessary difficulty. Accordingly, we must now
meet our constitutional responsibility by scrutinizing the Statute for those
matters which are judicial (including procedural provisions), and by
11
establishing the procedure to be followed in wrongful death litigation, those
provisions notwithstanding.13
¶34. Our first procedural concern was that the provisions of Section 11-7-13 had been
interpreted “to allow a suit by the personal representative, or by the wrongful death heirs, but
not by both,” meaning courts had interpreted the statute “to provide exclusive authority to
a wrongful death beneficiary who files suit to pursue the claims of the estate.” 14
We elaborated by pointing out that, according to the record in the Long case,
we had an excellent trial judge with many years experience on the trial bench,
and excellent lawyers with many years of litigation experience, who believe[d]
that, under the Statute, [one of the wrongful-death beneficiaries who also was
the sole beneficiary under the decedent’s will was allowed to] prosecute the
case on behalf of all persons entitled to recover, with or without their consent;
and that, absent her agreement, other claimants [were] prohibited from joining
in to participate in the litigation with counsel of their choice.15
¶35. We then pointed out the numerous conflicts of interest this previous procedural
interpretation produced, including that:
the attorney who represents the first heir to file “controls” the litigation, and
represents all heirs (whether they agree to such representation or not), and that
the attorney is not only justified, but indeed compelled, by [these
interpretations of] the Statute to oppose his “clients,” should they attempt to
join the litigation with counsel of their choice.16
¶36. And, in summing up the point, we stated:
By our decision today and the procedure announced below, we intend to
eliminate the inherent conflict of interest and simplify the decisions to be made
by trial courts where more than one heir wishes to participate in the litigation
13
Id. at 163 (emphasis added).
14
Id. at 168 (internal citations omitted).
15
Id. at 168-69.
16
Id. at 170-71.
12
to protect their individual interests. We also address the dilemma faced by
counsel who have seemingly been forced into the uncomfortable position of
representing a client with conflicts of interest.
The resolution of this case requires only that we address appropriate practice
and procedure in wrongful death litigation. No substantive law is involved.17
¶37. We then discussed joinder of parties, as controlled by Mississippi Rule of Civil
Procedure 19, and the role of the chancery court under current statutes and procedural rules;
and we then set down the procedural rules to be followed, including the absence of authority
to consolidate separate suits, the joinder of parties, control of the litigation, and the duties and
obligations of counsel.
¶38. Our discussion of individual claims for damages under Section 11-7-13 did not find
the statute “constitutionally odious.” We did no more than interpret the statute as allowing
individuals with claims for loss of society and companionship to recover those damages
individually. Specifically, in our discussion of potential conflicts of interest, we stated:
For instance, the estate is entitled to recover funeral costs and final medical
expenses. The beneficiaries are entitled to recover for their respective claims
of loss of society and companionship. The wrongful death beneficiaries are
entitled to recover the present net cash value of the decedent’s continued
existence. . . . A disinherited heir who is also a wrongful death beneficiary
will have no interest in pursuing claims for the estate. The representative of the
estate will have no interest in pursuing recovery for the disinherited heir. Each
beneficiary must consider whether to bring their own individual claim for loss
of society and companionship. A spouse may have a claim for loss of
consortium. Where there is a limited fund for recovery, the potential for
conflicts of interest, real and apparent, are enormous.18
17
Id. at 171 (emphasis added).
18
Id. at 169.
13
¶39. This language by no means was a determination that Section 11-7-13, or any part of
it, was unconstitutional. Instead, we provided a reasonable interpretation of the statutory
provisions that address the division of the various kinds of damages, and we found that the
statute allows individual claims for loss of society, companionship, and consortium.19
¶40. Likewise, in Caves v. Yarbrough,20 we recognized—without disagreement from any
justice—that:
cases filed pursuant to our wrongful-death statute may involve more than one
kind of claim. For instance, in addition to claims the decedent could have
brought ‘if death had not ensued,’ there may be individual claims of loss of
consortium, society and companionship, . . . .21
¶41. Justice Kitchens cites several cases, none of which hold that loss of society,
companionship, and consortium damages suffered by one person must be divided equally
among all wrongful-death beneficiaries, and all of which are easily distinguished from our
holding in Long. The most glaring example is his citation of Pannell v. Guess,22 from which
he provides the following quote: “the wrongful death statute does not provide that the lower
court may conduct a hearing to determine how to divide the proceeds. In fact, the statute
provides that the funds ‘shall be equally distributed.’” 23
19
Id.
20
Caves v. Yarbrough, 991 So. 2d 142 (Miss. 2008).
21
Id. at 148-49 (emphasis added).
22
Pannell v. Guess, 671 So. 2d 1310 (Miss. 1996).
23
Id. at 1314.
14
¶42. Justice Kitchens’s quote is accurate, but he fails to point out that, in Pannell, no one
had filed suit for individual damages, nor had anyone sought them or negotiated for them
prior to the settlement. Prior to any suit being filed, the unmarried minor decedent’s father,
David Pannell—who had been appointed administrator of her estate—settled the wrongful-
death claim with the tortfeasor’s insurance company and deposited the proceeds in the
registry of the chancery court.
¶43. When a dispute later arose about distribution of the proceeds, the Pannell Court
correctly held that the chancery court (the lower court referred to in Pannell) had no
authority to “conduct a hearing to determine how to divide the [settlement] proceeds.” 24 At
that stage of the proceedings, any division by the chancery court other than an equal division
among the wrongful-death beneficiaries would have been error. Damage claims for an
individual’s loss of society and companionship and loss of consortium would have to have
been made in a properly filed lawsuit in the circuit court, or negotiated for in settlement. In
Pannell, as in the case before us today, by the time the settlement agreement reached the
chancery court, it was too late for someone to make a new claim for recovery. And because
Pannell said nothing different from our holding in Long, we had no reason to overrule it.
¶44. The question of whether a family member may join an individual claim for loss of
society, companionship, and consortium in a properly-filed wrongful-death lawsuit is not
before us. In this case, as in Pannell, no wrongful-death lawsuit was ever filed. The
24
Id.
15
chancellor correctly held that she did not have the power or authority to divide the proceeds
of the settlement unequally.
¶45. As an afterthought, and as another reason for our disagreement with Justice Kitchens’s
views, we point out that, a decade ago in Long, we interpreted Section 11-7-13 as allowing
an individual claim and recovery for loss of society, companionship, and consortium. We
have continued to apply that interpretation in cases such as Caves, discussed above. That
interpretation was left intact in 2013 when the Legislature reenacted Section 11-7-13. This
presents the question of whether—even if Justice Kitchens’s interpretation of the statute were
correct—it is precluded by stare decisis.
¶46. In Caves, we were called upon to decide whether the statute of limitations for the
Mississippi Tort Claims Act was subject to a discovery provision.25 Although no discovery
provision can be found within the statutory language, prior decisions by this Court had held
that a discovery provision applied.26 And, after those decisions recognizing a discovery
provision, the Legislature had reenacted the statutes without correcting our interpretation.27
This caused us to consider whether the Legislature’s failure to act was an endorsement of our
previous interpretations of its statutes, and whether those previous decisions should be
followed pursuant to the doctrine of stare decisis.28 We concluded and held as follows:
25
Caves, 991 So. 2d at 146.
26
Id. at 150.
27
Id. at 153.
28
Id. at 150.
16
While we do not agree that the Legislature’s mere silence is enough, we do
agree with the view offered by Justice Roberts in Helvering v. Hallock, 309
U.S. 106, 130-32, 60 S. Ct. 444, 84 L. Ed. 604 (1940), that congressional
re-enactment of a statute creates a presumption of legislative approval of the
Court’s prior interpretations of that statute. This threshold test for application
of stare decisis has been followed in numerous cases. For instance, in
Lorillard, Div. of Loew’s Theatres, Inc. v. Pons, 434 U.S. 575, 580-81, 98 S.
Ct. 866, 55 L. Ed. 2d 40 (1978), Justice Marshall noted, “Congress is
presumed to be aware of an administrative or judicial interpretation of a statute
and to adopt that interpretation when it re-enacts a statute without change.” 29
¶47. We agree with this reasoning and hold that—in cases where this Court concludes a
statute was incorrectly interpreted in a previous case—we will nevertheless continue to apply
the previous interpretation, pursuant to the doctrine of stare decisis, upon finding the
Legislature amended or reenacted the statute without correcting the prior interpretation.30
In our view, such action on the part of the Legislature amounts to incorporation of our
previous interpretation into the reenacted or amended statute.31
¶48. We find the chancellor in this case correctly concluded that she was without authority
to entertain claims of loss of society and companionship, or to unequally divide the wrongful-
death settlement proceeds.
III. Whether the chancellor erred by granting Castigliola and Kihyet
any award of attorneys’ fees from the portion of the settlement due
to David Jr. and Allison.
¶49. The chancellor recognized that David Jr. and Allison had no contract or agreement
with Kihyet or Castigliola, and that they were not bound by the forty-percent provision
29
Id. at 153.
30
Id. at 153-154.
31
Id.
17
concerning attorney’s fees. Then, based on the attorneys’ estimates of hours spent working
on the case, she calculated what would be the attorneys’ fees on an hourly rate basis under
the doctrine of quantum meruit. And because that amount exceeded forty percent, she
granted the lawyers a fee of forty percent.
¶50. As the chancellor noted, David Jr. and Allison were not contractually obligated to pay
Castigliola and Kihyet anything. It is true that the absence of a contract does not preclude
a recovery of attorneys’ fees on a quantum meriut basis. But four justices would find that,
under the facts of this case, the chancellor erred by finding the elements necessary for
quantum meruit were met. For quantum meruit to apply, the chancellor must find that “(1)
valuable services were rendered or materials furnished,” and (2) that they were furnished “for
the person sought to be charged.” 32 The chancellor also must find (3) that the “services and
materials were accepted by the person sought to be charged, used and enjoyed by him,” and
(4) under the circumstances, it was understood that the person performing such services
expected to be paid by the person sought to be charged.33
¶51. Here, the second element clearly was not satisfied. Castigliola and Kihyet were
retained to represent the estate and engaged in settlement negotiations on behalf of the estate.
What is more, Castigliola argued that he never represented David Jr. and Allison; he actively
sought to preclude their recovery altogether of any portion of the settlements; he attempted
32
Tupelo Redevelopment Agency v. Gray Corp., Inc., 972 So. 2d 495, 514 (Miss.
2007) (quoting In re Estate of Fitzner, 881 So. 2d 164, 173-74 (Miss. 2003)) (emphasis
added).
33
Tupelo Redevelopment Agency, 972 So. 2d at 514-15 (quoting In re Fitzner, 881
So. 2d at 173-74).
18
to have the chancellor change her prior adjudication of beneficiaries and exclude David Jr.
and Allison; and he worked to reduce the portion they finally obtained.
¶52. Four justices find that these attorneys who were actively litigating against the half-
siblings’ interests—and with whom they had an actual conflict of interest—cannot be found
to have been rendering legal representation “for the person sought to be charged,” as required
for a quantum meruit award. We would find the attorneys’ own arguments and actual
conflict of interest are dispositive, and they were not entitled to recover any attorneys’ fees
from David Jr. and Allison. But because a majority of justices have not voted to reverse the
Court of Appeals, its opinion and holding on this issue for this case must stand.
CONCLUSION
¶53. We affirm the chancellor’s finding on the cross-appeal that, under the facts of this
case, the settlement proceeds must be equally divided and we also affirm the Court of
Appeals on this issue. And because a majority of justices have not voted to reverse the Court
of Appeals with respect to the issue of attorney fees, its opinion and holding on this issue,
reversing in part and remanding, for this case must stand.
¶54. AFFIRMED IN PART; REVERSED IN PART AND REMANDED.
WALLER, C.J., LAMAR AND COLEMAN, JJ., CONCUR. KITCHENS, J.,
CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN
OPINION. KING, J., CONCURS IN PART AND DISSENTS IN PART WITH
SEPARATE WRITTEN OPINION JOINED BY RANDOLPH, P.J., AND
CHANDLER, J. ; KITCHENS, J., JOINS THIS OPINION IN PART. PIERCE, J.,
NOT PARTICIPATING.
KITCHENS, JUSTICE, CONCURRING IN PART AND DISSENTING IN
PART:
19
¶55. I agree with my colleagues in the plurality that the chancellor correctly concluded that
she was without authority to divide the wrongful death settlement proceeds unequally. I
write separately to express my disagreement with the line of cases which allows for a
proportional division of damages for loss of society and companionship among wrongful
death beneficiaries.
¶56. The wrongful death statute, Mississippi Code Section 11-7-13, provides, in pertinent
part:
Damages for the injury and death of a married man shall be equally distributed
to his wife and children, and if he has no children all shall go to his wife;
damages for the injury and death of a married woman shall be equally
distributed to the husband and children, and if she has no children all shall go
to the husband; and if the deceased has no husband or wife, the damages shall
be equally distributed to the children; if the deceased has no husband, nor
wife, nor children, the damages shall be distributed equally to the father,
mother, brothers and sisters, or such of them as the deceased may have living
at his or her death.
Miss. Code Ann. § 11-7-13 (Rev. 2004) (emphasis added). “There shall not be, in any case,
a distinction between the kindred of the whole and half blood of equal degree.” Miss. Code
Ann. § 11-7-13. The language mandating equal distribution of wrongful death damages first
appeared in Section 721 of the Mississippi Code of 1906, having been approved to amend
chapter 663 of the Mississippi Code of 1892 on March 23, 1896. Act of Mar. 23, 1896, ch.
86 § 3, 1896 Miss. Laws. See Act of Jan. 27, 1898, ch. 65 § 3, 1898 Miss. Laws. Now
Mississippi Code Section 11-7-13, this provision consistently has been reaffirmed by the
legislature, most recently during the 2014 legislative session. See Miss. Code Ann. § 11-7-13
(Supp. 2014).
20
¶57. This Court long has held that, “[o]n appellate review, we strictly construe
Mississippi’s wrongful death statute.” Pannell v. Guess, 671 So. 2d 1310, 1313 (Miss. 1996)
(citing Smith v. Garrett, 287 So. 2d 258, 260 (Miss. 1973) (“ . . . the wrongful death statute
created a cause of action unknown to the common law, and must be strictly construed.”)
(citing Logan v. Durham, 231 Miss. 232, 95 So. 2d 227 (1957))). The statute allows for the
consideration of “all the damages of every kind to the decedent and all damages of every
kind to any and all parties interested in the suit.” Miss. Code Ann. § 11-7-13 (Rev. 2004).
This Court has interpreted the language of Section 11-7-13 to include “(1) the present net
cash value of the life expectancy of the deceased, (2) the loss of the companionship and
society of the decedent, (3) the pain and suffering of the decedent between the time of injury
and death, and (4) punitive damages.” McGowan v. Wright, 524 So. 2d 308, 311 (Miss.
1988) (emphasis added) (citing Jesco, Inc. v. Whitehead, 451 So. 2d 706, 710 (Miss. 1984);
Sheffield v. Sheffield, 405 So. 2d 1314, 1318 (Miss. 1981); Dickey v. Parham, 331 So. 2d
917, 918-19 (Miss. 1976); Thornton v. Ins. Co. of North Am., 287 So. 2d 262, 265 (Miss.
1973); Scott v. K-B Photo Service, Inc., 260 So. 2d 842, 844 (Miss. 1972); Boyd Constr. Co.
v. Bilbro, 210 So. 2d 637, 643 (Miss. 1968)).
¶58. In Pannell, this Court held that “the wrongful death statute does not provide that the
lower court may conduct a hearing to determine how to divide the proceeds. In fact, the
statute provides that the funds ‘shall be equally distributed.’” Pannell, 671 So. 2d at 1314.
The Court continued: “under Miss. Code Ann.§ 11-7-13 (Supp. 1991), the chancellor had no
choice but to distribute the insurance settlement proceeds . . . equally.” Id. As such, the Court
declined to find erroneous “the chancellor’s refusal to hold a separate hearing in which each
21
wrongful death beneficiary could attempt to prove his or her individual damages (and
therefore, the right to receive a larger or smaller portion of the insurance proceeds) . . . .”
Id.34
¶59. Nevertheless, in 2004, this Court departed from its prior interpretation of the wrongful
death statute and held that, “because we find provisions of the Statute which are not in accord
with this opinion to be ‘an impingement upon the constitution,’ . . . where provisions of this
opinion conflict with the Statute, the provisions herein shall control.” Long v. McKinney,
897 So. 2d 160, 164 (Miss. 2004). According to the Long Court, “in wrongful death
litigation, there are several kinds of damages which may be pursued, and these damages are
not due to the same claimants.” Id. at 169. The Court continued: “[t]he beneficiaries are
entitled to recover for their respective claims of loss of society and companionship” and
“[t]he wrongful death beneficiaries are entitled to recover the present net cash value of the
decedent’s continued existence.” Id. (emphasis added). Ostensibly, the Long Court found the
equal distribution of loss of society and companionship damages to be constitutionally
odious. However, no analysis of the constitutionality of the division of wrongful death
proceeds in this specific context can be found in Long.
¶60. Three years later, this Court considered whether the defendant was entitled to a
judgment notwithstanding the verdict in a case in which the plaintiff had failed to prove any
damages for loss of society and companionship. River Region Med. Corp. v. Patterson, 975
34
It was on the basis of Pannell that the Court of Appeals in the present case affirmed
“the chancellor’s judgment ordering that the settlement proceeds should be divided equally
among the wrongful death beneficiaries.” Estate of Eubanks v. Eubanks, 2013 WL 211730,
*14 (citing Pannell, 671 So. 2d at 1314).
22
So. 2d 205 (Miss. 2007). After the decedent had died during childbirth, her husband and two
daughters filed a wrongful death action against River Region, where the decedent had been
hospitalized. Id. at 206. Plaintiffs sought damages only for loss of society and
companionship, and the jury awarded them $1,710,000. Id. Following the Warren County
Circuit Court’s denial of defendant’s motion for judgment notwithstanding the verdict,
defendant appealed. Id. The daughters settled their claims with the defendant the next year,
leaving only the widower’s claims before this Court on appeal. Id.
¶61. This Court cited Long for the proposition that “[t]he beneficiaries are entitled to
recover for their respective claims of loss of society and companionship.” Id. at 208 (quoting
Long, 897 So. 2d at 169) (emphasis in Patterson). “Assuming Thomas Patterson was a
legitimate wrongful-death beneficiary, as we must do in giving him all reasonable
inferences,” this Court opined, “he would then be entitled to recover for himself any loss of
society and companionship he might prove, and to share equally in the damages which might
have been recovered by Ms. Nettles [the decedent], ‘had death not ensued.’” Id. at 208
(quoting Miss. Code Ann. § 11-7-13 (Rev. 2004)). The Court held that, because “Patterson
presented no evidence regarding any damages sustained from loss of society and
companionship,” the defendant “was entitled to judgment notwithstanding the verdict as to
Patterson’s claim.” Id. at 208.
¶62. Justice Graves dissented, reasoning that “Section 11-7-13 does not contain any
language as used by the majority that ‘beneficiaries are entitled to recover for their respective
claims of loss of society and companionship.’” Patterson, 975 So. 2d at 210 (Graves, J.,
dissenting). He pointed out that, though “[a]n equal distribution of such damages may seem
23
unfair,” a “strict construction of the statute would lead one to conclude that there would be
no need for Patterson to prove individual damages for loss of society and companionship.”
Id. I agree with Justice Graves’s analysis.35
¶63. Permitting unequal distribution of damages for loss of society and companionship
“individual to each beneficiary” tends to foster situations reminiscent of a comedy routine
often performed by the Smothers Brothers: “Mom always liked you best.” Under the Long
and Patterson cases, wrongful death beneficiaries—siblings and/or half siblings—can be
thrown into courtroom competition with each other in petty, rivalrous efforts to prove which
survivor most loved and/or was loved by the decedent.
¶64. It is true, as my learned colleague Justice King notes, that the Mississippi
Constitution vests our chancery courts with jurisdiction of “[a]ll matters in equity,”
“[m]atters testamentary and of administration,” and “[m]inor’s business.” Miss. Const. art.
6, § 159. And it is true that “the chancery court clearly had jurisdiction over approving and
dividing the settlement at issue.” King Op. ¶70. But Justice King concludes that, “in limited
circumstances such as the case before us today,” the chancery court has “the power to
consider and divide the damages for loss of society and companionship unequally.” King
Op. ¶70. However, none of the cases cited by Justice King stands for this proposition. See
35
Presiding Justice Dickinson presents his interpretation of Long by way of analogy,
stating that “Justice Kitchens interprets Section 11-7-13 to require that the wayward son who
cared nothing for his father, receive half the money the jury awarded the man’s wife for her
individual loss of society, companionship, and consortium.” Pl. Op. ¶32. I agree that such
a result may seem unfair, but echo Justice Graves’s dissent in Patterson: if the statute is
strictly construed, the wayward son would not need to prove individual damages for loss of
society and companionship. See Patterson, 975 So. 2d at 210 (Graves, J., dissenting).
24
Derr Plantation, Inc. v. Swarek, 14 So. 3d 711, 716 (Miss. 2009) (chancery court vested
with jurisdiction of specific performance of a real estate contract); McLendon v. Miss. State
Highway Comm’n, 38 So. 2d 325, 327 (Miss. 1949) (where equity jurisdiction attaches by
the chancery court’s “having taken jurisdiction on any one ground of equity,” chancery court
“will thereupon proceed in the one suit to a complete adjudication and settlement of every
one of all the several disputed questions materially involved in the entire transaction . . . .”);
Ill. Cent. R. Co. v. Nelson, 245 Miss. 395, 401 (1962) (chancery court exercised jurisdiction
of and awarded damages in wrongful death action “because of attachment features of the
case.”).
¶65. Mississippi Code Section 11-7-13 mandates the equal distribution of damages relating
to loss of society and companionship in a wrongful death action. This has been the law of
Mississippi for more than a century. But ten years ago, with the advent of Long, this Court
implicitly determined that equal distribution in this context is unconstitutional, in the
complete absence of any analysis of its perceived constitutional infirmity.
¶66. The plurality takes the position that the Long Court “did no more than interpret the
statute as allowing individuals with claims for loss of society and companionship to recover
those damages individually.” Pl. Op. ¶38. With respect, that is much more than a mere
interpretation of Section 11-7-13, which mandates that “the damages shall be distributed
equally . . . .” Miss. Code Ann. § 11-7-13. And, more importantly, the interpretation differed
from Pannell, which had held that because the decedent “was not survived by a husband or
children,” under Mississippi Code Section 11-7-13, “the chancellor had no choice but to
distribute the insurance settlement proceeds to [the decedent’s] father, mother, half-sisters
25
and half-brother, equally.” Pannell, 671 So. 2d at 1314. The Court rejected the argument that
the wrongful death statute permits the lower court to “conduct a hearing to determine how
to divide the proceeds.” Id.
¶67. With regard to the issue of the award of attorney fees, while Presiding Justice
Dickinson articulates some valid points with regard to Attorneys Kihyet’s and Castigliola’s
having actively litigated against Dane Eubanks’s half-siblings, David Eubanks, Jr., and
Allison Eubanks, I agree with Justice King that these two lawyers did, in fact, work to
maximize the monetary amount of the settlement for its ultimate beneficiaries, which
included David Eubanks, Jr., and Allison Eubanks. I agree with Justice King that this case
ought to be reversed and remanded for a deduction only of the legal costs incurred post-
settlement, during which time Attorneys Kihyet and Castigliola acted adversely to Dane’s
half siblings by seeking exclusion of them from the settlement award.
¶68. The legal landscape of Long and its progeny entitles wrongful death beneficiaries to
recover damages for loss of society and companionship which they may prove. See
Patterson, 975 So. 2d at 208. I would not have departed from the sensible and well-settled
law and practice as articulated by this Court in Pannell, that wrongful death proceeds,
whatever the nature of such damages, must be divided equally among all wrongful death
beneficiaries.
KING, JUSTICE, CONCURRING IN PART AND DISSENTING IN PART:
¶69. I disagree with the contention that the chancellor had no jurisdiction to divide the
damages for loss of society and companionship unequally. I also disagree with the plurality’s
analysis on the issue of attorneys’ fees. However, because I agree with the equal division of
26
damages in this particular case, I concur with that portion of the result, as well as with its
conclusion that damages for loss of society and companionship may be divided unequally in
wrongful death cases.
1. Chancery Court Jurisdiction
¶70. I believe that a chancery court, under certain limited circumstances such as the case
before us today, has the jurisdiction to apportion damages amongst the beneficiaries.
Chancery courts have full jurisdiction in “[a]ll matters in equity,” “[m]atters testamentary and
of administration,” and “[m]inor’s business.” Miss. Const. art. 6, § 159. Thus, the chancery
court clearly had jurisdiction over approving and dividing the settlement at issue.36 This
Court has held that once a chancery court’s equity jurisdiction has attached, it has the
discretion to award legal and punitive damages. Derr Plantation, Inc. v. Swarek, 14 So. 3d
711, 716 (2009). Certain legal claims may lie within the pendent jurisdiction of the chancery
court, once its original jurisdiction has attached.37 Id.
36
The opinion of the Court states that the chancellor did not have the power or
authority to divide the proceeds of the settlement unequally. Taken to its logical conclusion,
this view leads to the conclusion that the chancellor did not have the authority to divide the
settlement at all, equally or unequally, nor award any of the settlement to the half-siblings,
because the settlement was not the result of a jury verdict. Indeed, the chancellor had
jurisdiction over the case primarily due to its retention of the matters of the estate. As the
estate argued, the half-siblings were not heirs. How then, under such a view, did the
chancellor have any authority at all to divide the settlement amongst non-heirs? The
plurality also opines that a “chancellor who is asked to distribute the proceeds must distribute
them according to the terms that were decided by the jury or, as here, by the parties to the
settlement.” Op. at ¶ 26. The terms agreed to by the parties to the settlement stated that the
chancellor would determine the distribution of damages, not that the damages were to be
distributed equally.
37
This concept promotes judicial economy, so that, in the rare cases in which chancery
court jurisdiction overlaps circuit court jurisdiction, the parties do not have to try two cases
in two different courts. Moreover, in cases such as the one before us today, this concept
27
“[T]he Chancery Court having taken jurisdiction on any one ground of equity,
will thereupon proceed in the one suit to a complete adjudication and
settlement of every one of all the several disputed questions materially
involved in the entire transaction, awarding by a single comprehensive decree
all appropriate remedies, legal as well as equitable, although all the other
questions involved would otherwise be purely of legal cognizance . . . . having
taken jurisdiction the power of the court to administer full relief is limited by
nothing but justice itself.”
Id. (quoting McLendon v. Miss. State Highway Comm’n, 38 So. 2d 325, 327 (Miss. 1949)).
Thus, the chancery court in this case had the power to consider and divide the damages for
loss of society and companionship unequally. See Ill. Cent. R. Co. v. Nelson, 245 Miss. 395
(1962) (wrongful death action tried in chancery court, which determined damages).
¶71. However, while I believe that loss of society and companionship damages may be
divided unequally, and that it was within the jurisdiction of the chancery court in this case
to do so, I agree with the chancellor’s ultimate decision to divide the damages equally in this
case. As noted, damages which would have been recoverable by the decedent had death not
ensued are shared equally amongst the wrongful-death beneficiaries, while damages for loss
of society and companionship are individual to each wrongful-death beneficiary. The
$250,000 settlement in this case was for “all claims” and the counterclaim appears to focus
on damages that would have enured to the benefit of the decedent had death not ensued,
stating that “[t]he injuries suffered by Dane Eubanks in the collision in issue resulted in
compensable damages for pain, suffering, mental anguish, medical expenses, funeral
promotes settlement. If parties cannot have a settlement divided unequally in chancery
court, but can in circuit court only after filing a lawsuit, they will be more inclined to file a
lawsuit than resolve the issue out of court.
28
expenses, loss of future earnings and other damages.” 38 Nothing in the record before us
indicates which portion of the settlement, if any, was designated as compensation for
damages recoverable by Dane had death not ensued, and which portion of the settlement, if
any, was for the purpose of compensating the beneficiaries for their individual claims of loss
of society and companionship.39 Without any indication as to which type of damages the
settlement encompasses, I cannot say that the chancellor abused her discretion or was
manifestly wrong by dividing the entire settlement equally among the beneficiaries,
especially since the record indicates that the damages were more likely of the type that the
decedent would have recovered had death not occurred. However, I emphasize my belief
that the chancery court in this case did have the jurisdiction to divide the damages unequally,
and should have done so had the record indicated which portion of the settlement was
designated to compensate for loss of society and companionship.
2. Attorneys’ Fees
¶72. I disagree with the plurality’s analysis regarding attorneys’ fees. The plurality finds
that Kiyhet and Castigliola did not perform services for Allison and David Jr.40 The
38
Cecilia also vociferously argued that the settlement was an asset of the Estate, not
a wrongful-death settlement, which would indicate that the settlement was for damages Dane
would have recovered had death not ensued.
39
The chancery court even allowed the parties to proffer evidence regarding an
unequal distribution of damages. Cecilia and Seth proffered evidence regarding their loss
of society and companionship damages, but no one presented any evidence regarding the
amount of other types of damages encompassed by the settlement.
40
It is undisputed that David Jr. never even met Dane, as he had not yet been born
when Dane passed away. It appears that Allison, who was one year old at the time of Dane’s
death and who lived with the same father who was found by the chancery court to not have
been involved in Dane’s life, had little-to-no involvement with Dane. Yet, these children,
29
attorneys’ goal in settling the doubtful claim was to maximize settlement, without regard to
how that settlement would ultimately be distributed. As in Pannell v. Guess, after the
settlement was made with the insurance company, the parents attempted to exclude the half-
siblings from sharing in that settlement. Pannell v. Guess, 671 So. 2d 1310, 1312 (Miss.
1996). Then, the half-siblings “hired their own attorney to represent them in any further
matters dealing with the distribution of the wrongful death proceeds.” Id. (emphases added).
The Court still remanded for a determination of whether the contingency fee in the contract
not signed by the half-siblings was reasonable, since the half-siblings derived a benefit from
the attorney’s efforts and acquiesced to the settlement amount. Id. at 1315. It further found
that if the chancellor “should find that the contingency fee was not reasonable under the facts
of this case, then he may assess a fee based on quantum meruit.” Id. Certainly, in the case
at hand, Kiyhet and Castigliola should not receive any payment from Allison and David Jr.
for their work on how to distribute the proceeds of the settlement, as, in this regard, they
worked against the interests of Allison and David Jr. However, Kiyhet and Castigliola
obtained the settlement for the benefit of all who were to share in it, which ultimately
included Allison and David Jr. And Allison and David Jr. derived benefit from the efforts
of Kiyhet and Castigliola, and did not object to the settlement amount. Thus, Kiyhet and
Castigliola did perform services for Allison and David Jr., as they provided services to
maximize the settlement for any and all who were to share in the proceeds. Only after the
through their mother, seek monetary compensation for Dane’s death.
30
settlement was maximized to the benefit of all sharing in the proceeds 41 did Kiyhet and
Castigliola take positions adverse to Allison and David Jr.42 The plurality would have
Allison and David Jr., one of whom had no relationship to the deceased and the other who
had little or no relationship with him, and neither of whom endeavored to spend the money
to defend the suit from which this settlement arose, reap the full financial benefit of the
settlement without paying the attorneys who achieved that settlement for them.
¶73. In sum, I generally agree with the Court of Appeals’ analysis regarding attorneys’ fees
chargeable to Allison and David Jr. However, I do believe that the Court of Appeals may
have overstated the amount of attorneys’ fees that should be deducted. It found that “the
chancellor deducted no legal costs incurred by the attorneys herein in pursuing claims and
positions in federal court during the second wrongful-death claim, related negotiations, and
the federal court motion to clarify in an attempt to exclude David Jr. and Allison from
sharing in the $250,000 Allstate settlement proceeds.” Eubanks, 2014 WL 211730, at *13.
To be certain, attorneys’ fees associated with the motion to clarify in federal court should be
deducted. However, Allison and David Jr. clearly derived a benefit from the settlement
negotiations with Allstate pursuant to the federal court action. See Franklin v. Franklin ex
rel. Phillips, 858 So. 2d 110, 123 (Miss. 2003). During the settlement negotiations, the
objective of Kiyhet and Castigliola was to maximize the monetary amount of the settlement.
41
Even Huber admits in her original brief that it was “immediately after” obtaining
the settlement that Kiyhet and Castigliola took positions adverse to Allison and David Jr.
42
Indeed, the in the federal court case, Allstate filed a suit against the Estate and the
Cecilia, and Kiyhet and Castigliola defended the suit and counterclaimed. Allison and David
Jr. did not endeavor to spend the money to help defend the affirmative suit by Allstate
against the Estate.
31
While they did raise concerns about Allison and David Jr. sharing in the settlement, Allstate
refused to address those concerns and all parties agreed that the chancery court would decide
the issue of the division of the settlement. Thus, unless the evidence on remand indicates
otherwise, only attorneys’ fees and expenses incurred after the federal court settlement
negotiations should be deducted from the calculation of Allison and David Jr.’s portion of
those legal costs.
¶74. I believe that the chancery court was correct in determining that Allison and David,
Jr. owed attorneys’ fees in some amount, and dissent to the part of the plurality’s finding that
they owe nothing. I would remand the case for further determinations on this issue.
RANDOLPH, P.J., AND CHANDLER, J., JOIN THIS OPINION. KITCHENS,
J., JOINS THIS OPINION IN PART.
32