John E. Winters v. Eric Feng;

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2019-CA-01098-COA

JOHN E. WINTERS APPELLANT

v.

ERIC FENG APPELLEE

DATE OF JUDGMENT: 06/27/2019
TRIAL JUDGE: HON. WINSTON L. KIDD
COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT,
FIRST JUDICIAL DISTRICT
ATTORNEYS FOR APPELLANT: RICHARD R. GRINDSTAFF
BRYCE CHRISTIAN KUNZ
ATTORNEYS FOR APPELLEE: JOE S. DEATON III
RICHARD JASON CANTERBURY
NATURE OF THE CASE: CIVIL - INSURANCE
DISPOSITION: AFFIRMED - 11/10/2020
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

EN BANC.

McDONALD, J., FOR THE COURT:

¶1. This appeal arises from the Hinds County Circuit Court’s judgment affirming the

Hinds County County Court’s grant of summary judgment for Feng in a lease dispute and an

award to him of attorney’s fees. John E. Winters and Eric Feng entered into a commercial

property lease agreement, which, among other things, required Feng to provide Winters with

a liability and property insurance policy that listed Winters as an additional insured. Feng

provided Winters with a Certificate of Liability Insurance (Certificate) with the insurance

coverage listed. Winters thought that the Certificate was insufficient and terminated the lease

agreement. When Feng did not vacate the leased premises, Winters filed a complaint for
unlawful detainer against Feng in the Hinds County County Court based on Feng’s failure

to comply with the insurance requirements. Feng moved for summary judgment, which the

county court granted after finding that Feng’s Certificate provided sufficient proof of

insurance. The county court also awarded Feng attorney’s fees. Winters appealed to the

First Judicial District of the Hinds County Circuit Court, which affirmed the county court’s

judgment. Winters now appeals from the circuit court’s judgment. After a review of the

record and the parties’ briefs, we find that the circuit court did not err in affirming the county

court’s order granting Feng’s motion of summary judgment and awarding attorney’s fees.

Statement of the Facts and Procedural History

¶2. On August 28, 2015, Winters and Feng entered into a written lease agreement by

which Feng leased from Winters certain commercial property located in Lowndes County,

Mississippi. Although the lease agreement at issue began on September 1, 2015, the parties

had had prior leasing agreements for the same property since 1994. Paragraph 9 of the lease

agreement required Feng to secure commercial umbrella insurance in the amount of $1.5

million and property insurance:

(9) LESSEE shall provide and keep in force at its own expense during the
term of this Lease, or during any option period a commercial umbrella liability
insurance policy. The insurance coverage to be provided by the LESSEE shall
contain a limit of not less than ONE MILLION FIVE HUNDRED
THOUSAND AND 00/100 DOLLARS ($1,500,000.00) with an insurance
company that has, at minimum, an A+ Am Best Insurance Rating naming the
LESSOR as the insured. The coverage limit shall be adjusted every FIVE (5)
YEARS, as per inflation rate. The LESSEE will provide annually to LESSOR
a certified copy of the commercial umbrella liability policy or upon each
renewal policy period.

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LESSOR shall have no obligation to provide any of the insurance required by
this Lease, but LESSOR shall be shown as an additional insured on all policies
of insurance required by this Lease.

The LESSEE will provide at its own expense full coverage insurance for the
existing building and improvements in the demised premises along with full
coverage for other buildings and improvements that may later be placed
thereon by LESSEE with policy coverages for full replacement cost, naming
the LESSOR as the insured. The LESSEE will provide annually to LESSOR
a certified copy of the insurance policy or upon each renewal policy period.
The LESSOR agrees, upon settling any insurance claims that are covered by
insurance, to have all damages to building(s) or other improvements repaired
or reconstructed should the building(s) or any improvements be destroyed.

¶3. Shortly after the lease agreement was executed, Feng subleased the commercial

property to Arby’s Restaurant Group Inc. (Arby’s), which insured all of its fast-food

restaurants under one global insurance policy, including both umbrella commercial liability

and property coverage. Several months later, on or about December 7, 2015, Winters

realized that he had not been provided with any policies and requested that Feng provide him

with proof of insurance. To do this, Feng contacted Arby’s, which, according to both Arby’s

representatives and Feng, provided Winters with both the Certificate and the insurance

policy.

¶4. The Certificate provided commercial umbrella liability coverage of $25,000,000,

property coverage of $1,000,000, and listed Winters as an additional insured. Melissa Nuss,

“Vice President of Lease Agreements, Risk & Administrative Services of Arby’s Restaurant

Group, Inc.,” confirmed this coverage by affidavit. According to Nuss, the insurance policy

was effective on August 31, 2015.

¶5. According to an email dated January 8, 2016, from Niikol Young (Arby’s supervisor

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of lease administration), Winters received a copy of the policy and a Certificate, which

stated:

Our insurance carrier is going to schedule Mr. Winters as an additional insured
via endorsement on our liability policy. The endorsement is an addition to the
policy he has already received and is a 1 page document that will list him as
an additional ensured. Please find out exactly how Mr. Winters wants to be
listed so we can advise our carrier accordingly and they can complete the
document. On the Master Lease his name reads John Everette Winters, please
confirm this is how the endorsement should read.

But because Winters wanted both himself and his wife (who was not a party to the lease

agreement) to be listed as insureds, the parties could not agree on the language of the

endorsement.

¶6. Although Feng provided the Certificate to Winters, Winters requested that Feng obtain

additional insurance coverage for the property. But Feng refused to do so because he

believed the Arby’s insurance policy was sufficient.

¶7. On February 25, 2016, Winters sent Feng and Arby’s an email stating that he

purchased an insurance policy through State Farm for the property and requested

reimbursement:

Per Mr. Feng’s email instructions,[1] I am mailing the attached billing statement
for prompt full reimbursement payment to me for the annual premium of
$6,959.00 for securing insurance for the above captioned leased property. As
you will see, the coverage is good and the premium is quite competitive. The
premium is $2,000.00 - $3,000.00 less than quotes I received from other
agents. Enclosed, herewith, is a copy of the State Farm Insurance Binder
Receipt. Kindly refer to Paragraph (9); Paragraph (18) and Paragraph (36) of
the Lease Agreement as this will also serve as my “Thirty (30) Days” written
notice. Thank you for your cooperation.

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This prior email is not in the record. But during Feng’s deposition, he referenced
that he sent Winters an email concerning the reimbursement.

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In the email, Winters referred to the previously mentioned paragraph 9 as well as paragraphs

18 and 36 of the lease agreement. Paragraph 18 read:

(18) The occurrence of any of the following shall be an event of default
hereunder. (a) Should LESSEE default in paying any installment or rental
hereunder and such default continues for THIRTY (30) days after written
notice of such default from LESSOR; (b) Should LESSEE default in paying
any other sum to be paid by LESSEE hereunder and fail to pay the same within
THIRTY (30) days after written notice of such default from LESSOR; or (c)
Should LESSEE default in performing any of the other terms, provisions and
covenants of this Lease and fail within THIRTY (30) days after written notice
from LESSOR to cure such default or as to any default not curable within such
THIRTY (30) day period should LESSEE fail to institute appropriate action
to cure such default within such THIRTY (30) day period and thereafter
prosecute such action with due diligence and continuity.

Paragraph 36 stated, “Time is of the essence in all of the provisions of this Lease.” Again,

Winters wrote that the email served as his thirty-day written notice as required by paragraph

18 in the lease agreement.

¶8. According to Winters, Feng never reimbursed him for the State Farm insurance policy.

Pursuant to paragraphs 19 and 26 of the lease agreement, Winters sent a letter to Feng on

March 26, 2016, terminating the lease. Paragraphs 19 and 26 of the lease respectively

provided:

(19) Upon the occurrence of any event of default, then LESSOR may at its
option: (a) Terminate this Lease by written notice to LESSEE whereupon this
Lease shall end; (b) As LESSEE’S agent, without terminating this Lease, enter
upon or rent the demised premises at the best price attainable by reasonable
effort, without advertisement, and by private negotiations, for any term
LESSOR deems proper. LESSEE shall remain Liable to LESSOR for the
deficiency, if any, between the rental and other sums payable by LESSEE
hereunder and the rent obtained by LESSOR on re-letting, after deducting any
attorneys’ fees, commissions and other expenses paid by LESSOR with respect
to such re-letting.

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....

(26) . . . The time and date on which mail is postmarked shall be the time and
date on which communication is deemed to have been given.

Winters contended that Feng breached the lease agreement by not obtaining insurance for the

property as required by the lease agreement. Therefore, Winters argued he was entitled to

immediate possession of the property at issue, but Feng and his sublessee remained in

possession of the property.

¶9. On May 19, 2016, Winters filed a complaint in the county court for unlawful detainer

against Feng for Feng’s failure to comply with the insurance requirements required under

Paragraph 9 of the lease agreement. Winters requested that the county court grant him a writ

for immediate possession and a judgment against Feng for the premium of the State Farm

insurance policy, unpaid rent from the holdover period since the termination letter was sent,

attorney’s fees, and expenses.

¶10. On July 14, 2016, Feng answered the complaint by denying all of Winters’s claims

and filed a counter-claim stating that Winters (1) improperly and wrongfully terminated the

lease agreement when Feng was not in default of the lease; (2) intentionally breached the

contract and/or lease agreement between the parties; and (3) refused and rejected any and all

payments for insurance premiums from Feng and/or Feng’s sub-lessee in an effort to

effectuate a default in the lease agreement.2 Feng sought the following relief from the court:

(1) denial of Winters’s requests for relief; (2) judgment against Winters for the sum of the

insurance policy, lost rental income, loss of income from business operations, attorney’s fees,

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Arby’s reimbursed Winters for the additional State Farm insurance.

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court expenses, costs of litigation, and any and all other damages shown at trial and allowed

by law in Mississippi; (3) judgment granting Feng and/or his sublessee the right to remain

in possession of subject property for the duration of the lease agreement; and (4) judgment

against Winters for punitive damages because his alleged wrongful and improper breach of

contract was intentional in manner.

¶11. Winters was deposed on December 2, 2016. During the deposition, Winters stated he

did not believe the Arby’s insurance policy provided him with coverage pursuant to the terms

of the lease agreement. When he requested Feng to provide him with proof of insurance,

Winters testified that he only received declaration pages via email. Moreover, Winters stated

that there were issues that needed to be resolved, such as his wife being listed on the

insurance policy. Winters also stated that “[m]y name wasn’t in there, nowhere shown on

the policy.” Winters agreed that there was property insurance and liability insurance for the

property, but he argued that he was not named as the additional insured, as the lease

agreement required.3

¶12. Feng was deposed on December 13, 2016. During his deposition, Feng stated that he

never personally sent Winters a certified copy of the insurance policy but that Arby’s sent the

insurance policy and the Certificate via email. When asked whether the insurance policy

covered anything besides liability that arose out of operations of the Arby’s unit, Feng

answered that the premises were only used to conduct Arby’s business. Therefore, Winters,

as a named insured, was covered by Arby’s insurance policy.

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Winters’s belief was mistaken because the Certificate stated that “John Everette
Winters is an additional insured.”

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¶13. Feng filed a motion for summary judgment on February 6, 2017. In his memorandum

in support of the motion for summary judgment, Feng argued the following: (1) Arby’s

commercial general liability coverage and the property coverage exceeded the requirements

of the lease agreement; and (2) Arby’s Certificate indicated that Winters was both a

certificate holder and an additional insured to both general liability and property coverage.

Therefore, Feng contended there was no genuine issue of material fact regarding whether

Winters was provided proper insurance coverage, as the lease agreement required. Feng

requested an award of attorney’s fees, court expenses, and all other expenses related to the

lawsuit pursuant to Paragraph 33 of the lease agreement, which provided:

(33) The Laws of Mississippi shall be controlling in any interpretation of the
terms and conditions of this Lease. The venue for any lawsuit or any action
involving this Lease shall be Hinds County, Mississippi. Both parties agree to
the award of attorneys’ fees, court expenses and all other expenses related to
any lawsuit or any action involving this Lease.

¶14. Winters responded to Feng’s motion and filed a motion for summary judgment on

February 13, 2017. Winters argued that the Certificate was “self-defeating.” Specifically

Winters asserted that the Certificate (1) stated that it does not create a contract; (2) stated the

policy must be endorsed but that no policy had ever been provided to him; and (3) limited the

coverage to “liability arising out of the operations of the Arby’s unit.” Furthermore, Winters

stated that neither Arby’s nor Feng provided him with a certified or endorsed copy of the

insurance policies or any other contract evidencing insurance coverage, as required by the

lease agreement.

¶15. On April 4, 2017, the county court granted Feng’s motion for summary judgment for

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the reasons set forth in his motion for summary judgment and dismissed all of Winters’s

claims with prejudice. The county court also awarded Feng attorney’s fees in the amount of

$9,986 and expenses totaling $250.56, to be paid within sixty days of entry of the order.

Winters’s motion for summary judgment was denied.

¶16. On April 13, 2017, Winters appealed to the Hinds County Circuit Court. In his brief

to the circuit court, on August 18, 2017, Winters listed several issues; the two most

significant issues were (1) whether the granting of Feng’s attorney’s fees and expenses was

improper due to no itemization of attorney’s fees or expenses, and (2) whether the lease

agreement was terminated due to Feng’s violation(s) of the terms under the lease. Winters

argued that the county court’s decision should be reversed because of prejudicial error and

rendered in Winters’s favor. Feng filed his response in the circuit court on October 13, 2017.

Feng argued that the county court did not err in granting Feng’s motion for summary

judgment because he had provided proper insurance coverage to Winters as required by the

lease agreement.

¶17. On June 21, 2019, the circuit court heard oral argument and, on June 27, 2019, entered

a final order denying Winters’s relief requested on appeal and affirming the county’s court

grant of summary judgment for Feng. The circuit court found that “no genuine issue of

material fact existed upon which reasonable minds could differ.” The circuit court further

found that not only was Feng entitled to summary judgment, he was also entitled to the award

of attorney’s fees, court expenses, and all other expenses, including all fees and expenses

associated with the appeal.

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¶18. On July 2, 2019, Winters appealed from the circuit’s court order, raising the following

issues: (1) whether the lease agreement was terminated due to violation(s) by Feng under the

terms of the lease agreement; (2) whether the circuit court erred in affirming the grant of

Feng’s attorney’s fees and expenses without either the circuit or county court receiving any

itemization of said attorney’s fees and expenses; and (3) whether granting of Feng’s

attorney’s fees and expenses was improper due to the incorrect ruling on the merits. We find

that the circuit court did not err in affirming the county court’s grant of Feng’s motion of

summary judgment and award of attorney’s fees and expenses.

Standard of Review

¶19. “The grant or denial of a motion for summary judgment is reviewed de novo.”

Reverie Boutique LLC v. City of Waynesboro, 282 So. 3d 1273, 1277 (¶26) (Miss. Ct. App.

2019) (quoting Estate of Hudson v. Yazoo City, 246 So. 3d 872, 876 (¶29) (Miss. 2018)).

“The evidence is viewed in the light most favorable to the party opposing the motion.” Id.

“Only if there is no genuine issue of material fact is the moving party entitled to summary

judgment as a matter of law.” Id. Questions of law also are reviewed de novo. Id.

Discussion

I. Whether Feng violated the lease agreement resulting in a lawful
termination by Winters.

¶20. The Mississippi Supreme Court has stated that a breach of contract case has two

elements: (1) “the existence of a valid and binding contract,” and (2) a showing “that the

defendant has broken, or breached it.” Maness v. K & A Enters. of Miss. LLC, 250 So. 3d

402, 414 (¶43) (Miss. 2018) (quoting Bus. Commc’ns Inc. v. Banks, 90 So. 3d 1221, 1224

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(¶10) (Miss. 2012)). The termination of a contract is only permitted if there is a material

breach. Watkins Dev. LLC v. Jackson Redev. Auth., 283 So. 3d 170, 174-75 (¶10) (Miss.

2019) (citing Gulf S. Cap. Corp. v. Brown, 183 So. 2d 802, 805 (Miss. 1966)). Further the

Supreme Court has stated the following regarding a material breach:

A breach is material when there “is a failure to perform a substantial part of
the contract or one or more of its essential terms or conditions, or if there is
such a breach as substantially defeats its purpose,” Gulf South Capital Corp.
v. Brown, 183 So. 2d 802, 805 (Miss. 1966), or when “the breach of the
contract is such that upon a reasonable construction of the contract, it is shown
that the parties considered the breach as vital to the existence of the contract,”
Matheney v. McClain, 248 Miss. 842, 849, 161 So. 2d 516, 520 (1964).

Id. (quoting J.O. Hooker & Sons Inc. v. Roberts Cabinet Co., 683 So. 2d 396, 402-03 (Miss.

1996)). For leasing purposes, “a tenant’s right to possession may not be conditioned on

perfect performance of the lease but may be forfeited only upon a material breach or a

violation of a substantial obligation.” Id. (quoting 52 C.J.S. Landlord & Tenant § 189

(2019), Westlaw).

¶21. “A party who has breached or failed to properly perform a contract has a responsibility

and a right to cure the breach.” Byrd Bros. LLC v. Herring, 861 So. 2d 1070, 1073 (¶15)

(Miss. Ct. App. 2003) (citing Fitzner Pontiac-Buick-Cadillac Inc. v. Smith, 523 So. 2d 324,

328 (Miss. 1988)). The non-breaching party must provide the other party a reasonable

opportunity to cure the breach. Id. “The plaintiff bears the burden of proving material

breach by a preponderance of the evidence.” Ladner v. Pigg, 919 So. 2d 100, 102 (¶6) (Miss.

Ct. App. 2005).

¶22. In the present case, Winters argues that Feng breached the lease agreement when he

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did not obtain the proper insurance required.4 The lease agreement required Feng to obtain

commercial umbrella liability coverage and required Winters to be listed as an additional

insured. Feng, through Arby’s, complied with the insurance requirement and provided

Winters with the Certificate. Evidence of sufficient insurance was shown in the Certificate.

The United States Court of Appeals for the Fifth Circuit has held that “a certificate of

insurance provides a method whereby a lessee can show that he has complied with a lease

provision requiring that insurance be obtained by the lessee.” U.S. Pipe & Foundry Co. v.

U.S. Fid. & Guar. Co., 505 F.2d 88, 89 (5th Cir. 1974). According to the Certificate, the

property had $25 million in commercial umbrella liability coverage, far above the amount

required in the lease, and Winters was listed as an additional insured. Additionally, Arby’s

representative Nuss testified that the insurance had been in effect since August 31, 2015, and

that Winters was an additional insured.

¶23. Furthermore, Winters testified during his deposition that he received a copy of the

Certificate and declaration pages prior to obtaining the additional State Farm insurance.

Moreover, had there been a necessity to cure any breach, the record indicates that Winters

did not give Feng thirty days to do so, as the lease agreement required. We find that Feng

secured the necessary insurance coverage and provided Winters with the appropriate

insurance. Therefore, because the Certificate provides proof of sufficient insurance

4
Winters failed to cite any legal authority pertaining to whether he was provided with
sufficient insurance. This court has held that “[f]ailure to cite legal authority in support of
an issue is a procedural bar on appeal.” Herrin v. Perkins, 282 So. 3d 727, 733 (¶21) (Miss.
Ct. App. 2019) (quoting Fisher v. Miss. Dep’t of Emp’t Sec., 176 So. 3d 141, 143 (¶8)
(Miss. Ct. App. 2015)). Notwithstanding the procedural bar, we find that Feng did not
violate the lease because he provided Winters with proof that the property was insured.

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coverage, Feng did not fail to perform a substantial requirement of the contract. This issue

is without merit, and the circuit court’s judgment on this issue is affirmed.

II. Whether the circuit court erred in affirming the county court’s
grant of Feng’s attorney’s fees.

A. Attorney’s Fees for County and Circuit Court
Proceedings

¶24. Winters requests that the award of damages, attorney’s fees, and expenses be

remanded to the circuit court. He alleges specifically that (1) the circuit court erred in

affirming Feng’s attorney’s fees award because of incorrect ruling on the merits, and (2) the

circuit court erred in affirming Feng’s attorney’s fees awards without the circuit or county

court receiving any itemization of the attorney’s fees. “The typical standard of review of an

award of attorney’s fees is abuse of discretion.” Mark S. Bounds Realty Partners Inc. v.

Lawrence, 34 So. 3d 1224, 1227 (¶8) (Miss. Ct. App. 2010) (quoting Bailey v. Estate of

Kemp, 955 So. 2d 777, 787 (¶41) (Miss. 2007)).

¶25. Mississippi Code Annotated section 9-1-41 (Rev. 2014) provides the following

regarding attorney’s fees:

In any action in which a court is authorized to award reasonable attorneys’
fees, the court shall not require the party seeking such fees to put on proof as
to the reasonableness of the amount sought, but shall make the award based on
the information already before it and the court’s own opinion based on
experience and observation; provided however, a party may, in its discretion,
place before the court other evidence as to the reasonableness of the amount
of the award, and the court may consider such evidence in making the award.

“Attorney’s fees are a special remedy available only when expressly provided for in either

a statute or contract, or when there is sufficient proof to award punitive damages.” M&R

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Builders LLC v. Williams Equip. & Supply Co., 281 So. 3d 320, 342 (¶82) (Miss. Ct. App.

2018) (quoting Falkner v. Stubbs, 121 So. 3d 899, 903 (¶15) (Miss. 2013)). “[A] contractual

provision to pay attorney’s fees is not a blank check; it is limited by the reasonableness of

the fee [that] includes an analysis of whether work performed was actually necessary.”

Berlin v. Livingston Prop. Owners Ass’n Inc., 232 So. 3d 148, 159 (¶33) (Miss. Ct. App.

2017) (citation omitted).

¶26. The reasonableness of the fee is determined by the criteria contained in Rule 1.5(a)

of the Mississippi Rules of Professional Conduct, including:

(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.

Bailey Law PLLC v. Morgan & Morgan PLLC (In re Estate of Bourne), 282 So. 3d 796, 805

(¶29) (Miss. Ct. App. 2019).

¶27. This Court cannot say that the trial courts’ award of attorney’s fees to Feng was

unreasonable. In Berlin v. Livingston Property Owners Ass’n Inc., 232 So. 3d 148 (Miss. Ct.

App. 2017), this Court stated that “[a]though a chancellor generally should provide some

on-the-record analysis of the factors set out in Rule 1.5 of the Rules of Professional Conduct,

the failure to do so is not per se reversible error, and the chancellor’s award may be upheld

so long as the amount is not unreasonable.” Id. at 159 (¶34) (citing West v. West, 88 So. 3d

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735, 747 (¶58) (Miss. 2012)). In Berlin, we found that the circuit court did not abuse its

discretion by awarding attorney’s fees without a hearing or additional finding of facts given

the history of the case. Id. at (¶35). The owners association had provided an affidavit in

support of attorney’s fees and expenses, which amounted to $17,485.58. Id. We noted that

the case was pending for five years, involved multiples depositions, a trial, and several

motions. Id. Therefore, although the circuit court did not provide a full analysis of the

reasonable factors, we did not find the award of attorney’s fees reversible error. Id.

¶28. Significantly, in the present case, the parties specifically agreed to the payment of

attorney’s fees and expenses in the lease agreement if a legal dispute arose between them.

Paragraph 33 of the lease agreement stated that “[b]oth parties agree to the award of

attorneys’ fees, court expenses and all other expenses related to any lawsuit or any action

involving this Lease.” To support his request for attorney’s fees, Feng provided an affidavit

from his attorney which stated:

The Defendant has incurred attorneys’ fees in the amount of $9,986.00 and
expenses totaling $250.56 which is reasonable under the circumstances
considering the usual and customary charge in the community, the time and
labor required to defend the claim and the nature of the case.

The statute stated that the court should have all the documentation before it and use its own

opinion, based on experience and observation, to determine the appropriate amount of

attorney’s fees. Miss. Code Ann. § 9-1-41. We find that the lower court followed the statute.

Feng provided an affidavit, which stated the amount of attorney’s fees. We note that the case

was pending for about one year in the county court before being appealed to the circuit court

and now here. A complaint and answer were filed. There was a request for interrogatories,

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a request for production of documents, and requests for admission. Depositions of the

plaintiff and the defendant were taken. Feng filed a motion for summary judgment, which

Winters answered in opposition, and Feng filed a rebuttal. Feng’s attorney prepared an

affidavit, stating his attorney’s fees in the amount of $9,986 and expenses totaling $250.56.

The parties clearly agreed to attorney’s fees pursuant to the lease agreement. This Court

cannot say that the sum of $9,986 was unreasonable. The failure to not make an

on-the-record analysis of the Rule 1.5 reasonableness factors is not per se reversible error.

Therefore, the circuit court did not abuse its discretion in affirming the county court’s award

of attorney’s fees for Feng.

B. Attorney’s Fees on Appeal

¶29. Feng also requests attorney’s fees which were incurred as a result of this appeal. The

Mississippi Supreme Court has stated that “[w]hen a prevailing party requests attorneys’ fees

on appeal, typically, the Court awards attorney fees on appeal in an amount equal to half the

amount awarded at trial.” Latham v. Latham, 261 So. 3d 1110, 1115 (¶23) (Miss. 2019)

(citing Huseth v. Huseth, 135 So. 3d 846, 861 (¶47) (Miss. 2014)). But in Latham, the Court

held that request for appellate attorney’s fees must be made in a motion that complies with

Mississippi Rule of Appellate Procedure 27(a).5 Id. at 1116 (¶23). Feng has not filed such

a motion. Therefore, we decline to consider Feng’s request at this time.

Conclusion

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Rule 27(a) states that “[u]nless another form is elsewhere prescribed by these rules,
an application for an order or other relief shall be made by filing a motion for such order or
relief with proof of service on all other parties.” M.R.A.P. 27(a).

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¶30. Because Feng obtained sufficient insurance coverage on the leased property and

provided Winters with proof thereof, we affirm the circuit court’s ruling that affirmed the

county court’s grant of summary judgment and award of attorney’s fees for Feng.

¶31. AFFIRMED.

BARNES, C.J., CARLTON, P.J., GREENLEE, WESTBROOKS, LAWRENCE
AND McCARTY, JJ., CONCUR. WILSON, P.J., CONCURS IN PART AND IN THE
RESULT WITHOUT SEPARATE WRITTEN OPINION.

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