 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
In re Guardianship of Savell3/18/2003
contracts for employment of litigation attorneys must be accepted - whether the contract was executed by the principal or by her agent, whether executed by an agent before or after the incompetency of the principal under a durable power of attorney, and whether or not it was for more or less than the preferred percentage.
. To counter these problems, the majority cites inapplicable general principles. First, the Court notes the supplemental findings made by the chancellor. The Court concludes that "the chancellor's actions were supported by substantial credible evidence" consistent with his findings. I have already discussed those findings. The chancellor did not find that the contract was a violation of an agent's obligations of good faith management of her principal's affairs. Instead, the operative finding was that this contract provided for more than the chancellor's per se limit. That is explicitly the only reason that the chancellor ruled as he did. That is not enough.
. The majority also stated that "by voluntarily submitting this matter to the chancellor for approval, the parties did so for all purposes. Humble Oil & Refining Co. v. Rankin, 207 Miss. 402, 408, 42 So. 2d 414, 417 (1949)." With respect, the cited case holds only that when an interpleader action was brought, it was proper for the trial court also to grant other relief even though strictly speaking, "the defendants can go no further than to show that the complainant is not entitled to maintain his bill and that the defendants cannot ask for any specific relief against the complainant." Id. Thus a cross-bill was permitted. In no way does that case suggest that what is not normally alterable by a court becomes alterable just because litigation is commenced. Disputed judicial procedure was addressed in the Supreme Court's Humble precedent of 1949. That case is not relevant to the disputed judicial right addressed in this Court's bold precedent of today.
. The majority similarly argues that if "parties have voluntarily submitted to the chancellor a matter for his resolution, he has the authority to address all matters touching upon the resolution of that issue, Johnson v. Hinds County, 524 So. 2d 947, 953 (Miss. 1988)." Of course. That opinion noted that "if any aspect of the case lay within its subject matter jurisdiction, the chancery court had authority to hear and adjudge any non-chancery pure law claims via pendent jurisdiction." Id. My disagreement has nothing to do with whether the chancellor went beyond the possibly limited version of what initial pleadings presented as the cause of action. The validity of this contract of representation - its consistency with the obligations of the holder of a power of attorney - was presented to the chancellor. Where error occurred, with all respect to the chancellor, was when he concluded that no contract was valid or reasonable unless it met his norms.
. A contract for representation in a lawsuit can validly be entered by an attorney-in-fact after the principal becomes incompetent, if the power is a durable one and if the terms of that contract are consistent with good faith and reasonable diligence. No pre-approval or post-approval by a chancellor is required. Should a chancellor later become involved, all the chancellor may do is determine whether the contract fits within these general rules. The court may not in addition apply his personal view of what should be in such contracts. A valid contract may not be impaired.
. I would order the contract enforced as it was initially negotiated.
McMILLIN, C.J., IRVING AND CHANDLER, JJ., JOIN THIS SEPARATE WRITTEN OPINION.
Page 1 2 3 4 5 6 7 8 Mississippi Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|