Jay Foster v. Paul Kotsakos

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2013-CP-01170-COA

JAY FOSTER APPELLANT

v.

PAUL KOTSAKOS APPELLEE

DATE OF JUDGMENT: 06/14/2013
TRIAL JUDGE: HON. JAMES B. PERSONS
COURT FROM WHICH APPEALED: HARRISON COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANT: JAY FOSTER (PRO SE)
JAMES (JAY) R. FOSTER II
ATTORNEY FOR APPELLEE: WILLIAM CARL MILLER
NATURE OF THE CASE: CIVIL - OTHER
TRIAL COURT DISPOSITION: AWARDED ATTORNEY’S FEES
DISPOSITION: AFFIRMED – 09/23/2014
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

BEFORE IRVING, P.J., ISHEE AND ROBERTS, JJ.

IRVING, P.J., FOR THE COURT:

¶1. This appeal arises from the award by the Harrison County Chancery Court of

attorney’s fees in a guardianship proceeding involving injuries sustained by a minor in a car

accident. Jay Foster, an attorney initially hired by the minor’s father and then fired, is

appealing the chancellor’s award of the majority of the attorney’s fees to the attorney

subsequently hired to represent the minor.

FACTS

¶2. K.K., a minor,1 was injured in a car wreck in December 2011. Acting on her behalf,

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We use initials to protect the privacy of the minor involved in this matter.
her father, Paul Kotsakos, entered into an attorney’s-fee contract with Foster in February

2012. No guardianship proceedings were initiated for the minor and the attorney’s-fee

contract was not submitted to the chancery court for approval. Dissatisfied with the progress

toward settlement, the father fired Foster in July 2012, and retained Billy Miller to represent

K.K.

¶3. At the time of Foster’s termination, he had done very little work on the case. The file

turned over to Kotsakos by Foster had only six documents in it, including the police report

supplied to Foster by Kotsakos and some letters from a medical collection agency.

¶4. The tortfeasor involved in the car wreck in which K.K. was injured had only $25,000

in liability insurance coverage, while K.K. had $24,416 in medical expenses. Therefore, the

main legal work consisted of getting the insurer to pay the policy limits, negotiating a

reduction in medical bills, and drafting the necessary guardianship paperwork, which was all

done by Miller. After Miller negotiated a reduction in medical bills, $10,067.36 was left for

distribution to K.K. Miller then obtained an order from the chancellor authorizing settlement

of K.K.’s claim for the negotiated amount.

¶5. Prior to the settlement of K.K.’s claim, Foster requested over $5,000 in attorney’s

fees, which he alleged was a reduction in the $9,000 actually owed. Miller claimed that

Miller was entitled to one-third of the settlement for the work that he had done.

¶6. The chancellor set the matter for a hearing during which he determined that Miller had

done almost all of the work leading to the recovery. Thereafter, the chancellor awarded

Miller one-third of the net amount received by K.K. and awarded Foster $500 on a quantum

meruit basis.

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ANALYSIS AND DISCUSSION OF THE ISSUES

¶7. Foster raises several issues, none of which are dispositive of, or relevant to, the central

issue: whether the chancery court erred in awarding attorney’s fees to Foster on a quantum

meruit basis and in not honoring the contract entered into by Foster and K.K.’s father. An

ancillary issue is whether the amount awarded is reasonable or consistent with the McKee

factors.2 We discuss these issues in turn.

1. The Legality of Foster’s Contract

¶8. Foster argues that his attorney’s-fee contract should be honored even though it

involved a minor and was not approved by the chancellor. Foster’s argument ignores the fact

that contracts regarding recovery for personal injury to minors are governed by Rule 6.12 of

the Uniform Chancery Court Rules. Rule 6.12 requires court approval of attorney’s-fee

contracts and trumps the general contract law relied upon by Foster. Specifically, Rule 6.12

provides:

Every petition by a fiduciary or attorney for the allowance of attorney’s fees
for services rendered shall set forth the . . . facts . . . touching his
compensation, and . . . the nature and effect thereof. If the petition be for the
allowance of fees for recovering damages for wrongful death or injury, or
other claim due the estate, the petition shall show the total amount recovered,
the nature and extent of the service rendered and expense incurred by the
attorney . . . . In such cases, the amount allowed as attorney’s fees will be
fixed by the Chancellor at such sum as will be reasonable compensation for
the service rendered and expense incurred without being bound by any
contract made with any unauthorized persons. If the parties make an
agreement for a contingent fee the contract or agreement of the fiduciary with
the attorney must be approved by the Chancellor.

(Emphasis added).

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McKee v. McKee, 418 So. 2d 764 (Miss. 1982).

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¶9. Foster did not submit his contract for approval by the chancellor prior to his being

terminated by K.K.’s father. Therefore, his contract was void, or at least not enforceable

against the minor. This issue is without merit.

2. The Reasonableness of the Attorney’s Fees Awarded and the Application of the
McKee Factors

¶10. In In re Estate of Baker, 31 So. 3d 1285, 1288 (¶12) (Miss. Ct. App. 2010), this Court

ruled:

With regard to minors’ matters in Mississippi, principles of equity govern. In
Sunnyland Contracting Co. v. Davis, 221 Miss. 744, 756, 75 So. 2d 638, 639
(1954), the court stated: “Where minors are involved, the courts must
necessarily determine the fees; and any contract for fees does not bind the
minors.” In accordance with Sunnyland, this Court does not have to recognize
the existing contingency-fee contract. Thus, only equitable principles control
the division of attorney’s fees in this case.

The court in In re Estate of Baker upheld a chancellor’s division of ninety percent of fees

under a contingency-fee contract to a Mississippi attorney who did most of the work and ten

percent to the referring Louisiana attorney who did very little work. Id. at 1289 (¶14).

¶11. Foster asserts that the chancellor should have applied the McKee factors in

determining an appropriate attorney’s fee. In McKee, the Mississippi Supreme Court held

as follows in regard to the determination of attorney’s fees:

The fee depends on consideration of, in addition to the relative financial ability
of the parties, the skill and standing of the attorney employed, the nature of the
case and novelty and difficulty of the questions at issue, as well as the degree
of responsibility involved in the management of the cause, the time and labor
required, the usual and customary charge in the community, and the preclusion
of other employment by the attorney due to the acceptance of the case.

McKee, 418 So. 2d at 767. The court continued: “[W]e are also of the opinion the allowance

of attorney[’s] fees should be only in such amount as will compensate for the services

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rendered. It must be fair and just to all concerned after it has been determined that the legal

work being compensated was reasonably required and necessary.” Id.

¶12. Rule 1.5(a) of the Mississippi Rules of Professional Conduct similarly provides that

“a lawyer's fee shall be reasonable.” Rule 1.5(a) sets out several factors to be considered in

determining reasonableness:

(1) the time and labor required, the novelty and difficulty of the questions
involved, and the skill requisite to perform the legal service properly; (2) the
likelihood, if apparent to the client, that the acceptance of the particular
employment will preclude other employment by the lawyer; (3) the fee
customarily charged in the locality for similar legal services; (4) the amount
involved and the results obtained; (5) the time limitations imposed by the
client or by the circumstances; (6) the nature and length of the professional
relationship with the client; (7) the experience, reputation, and ability of the
lawyer or lawyers performing the services; and (8) whether the fee is fixed or
contingent.

¶13. Although the chancellor did not recite the McKee factors or Rule 1.5(a) in explaining

his division of fees, it appears that he fairly apportioned the limited fees between the

attorneys based upon their respective work on the case. The chancellor observed that there

was only about a $10,000 recovery obtained for the minor and that “chancery courts just

don’t award attorney’s fees in an amount greater than what the client ultimately receives as

a general rule.” The chancellor correctly referenced Rule 6.12 as guiding his analysis. He

noted that “[t]he negotiation of the medical bills[,] . . . [t]he work . . . that secured the

settlement[,] and the reduction of the medical bills was all done by Mr. Miller.”

¶14. We have reviewed the bill for attorney’s fees submitted by Foster, and we agree with

the chancellor’s finding that almost all of the work resulting in the financial recovery was

performed by Miller, not Foster. Therefore, we find that the chancellor did not abuse his

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discretion in awarding Foster only $500 in attorney’s fees. This issue is without merit.

¶15. THE JUDGMENT OF THE HARRISON COUNTY CHANCERY COURT IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANT.

LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, ROBERTS, CARLTON,
MAXWELL, FAIR AND JAMES, JJ., CONCUR.

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