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Mississippi Power & Light Co. v. Cook12/5/2002
umbus Hotel Co., 741 So. 2d 259, 269 (Miss. 1999).
. Absent some statutory authority or contractual provision, attorneys' fees cannot be awarded unless punitive damages are also proper. Aetna Cas. & Sur. Co. v. Steele, 373 So. 2d 797, 801 (Miss. 1979). Where punitive damages are awarded by the jury, attorneys' fees are justified. See Smith v. Dorsey, 599 So. 2d 529, 549-50 (Miss. 1992); Defenbaugh and Company of Leland v. Rogers, 543 So. 2d 1164, 1167 (Miss. 1989) Tideway Oil Programs, Inc. v. Serio, 431 So. 2d 454, 465 (Miss. 1983). The reasonableness of an attorney's fee award is determined by reference to the factors set forth in Rule 1.5 of the Mississippi Rules of Professional Conduct. This Rule provides in pertinent part:
(a) A lawyer's fee shall be reasonable. The factors to be considered in determining the reasonableness of a fee include the following: (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. Miss. R. Prof'l Conduct 1.5. See also Richardson v. Canton Farm Equip., Inc., 608 So. 2d 1240, 1256 (Miss.1992); Carter v. Clegg, 557 So. 2d 1187, 1192 (Miss.1990); McKee v. McKee, 418 So. 2d 764, 767 (Miss.1982).
These factors are sometimes referred to as the McKee factors. In addition to these factors, the Legislature gives additional guidance to courts in determining the reasonableness of attorney's fees by instructing the court to "make the award based on the information already before it and the court's own opinion based on experience and observation...." Miss. Code Ann. ยง 9-1-41 (1991).
. The trial court found in its Final Judgment Ordering Payment of Plaintiff's Attorney Fees the following:
The court finds that the herein cause has been litigated for more than nine (9) years at considerable risk to plaintiff's counsel. Additionally, Defendant removed the case to federal court in 1996, requiring plaintiff to litigate the matter in both state and federal court. Plaintiff's counsel was successful in having the case remanded to state court. Much time and labor have been expended in bringing this case to trial. Plaintiff has provided evidence that the contingency fee contract is reasonable as it relates to similarly litigated cases. The difficulty of litigating a cold case, as well as, employing a somewhat novel approach regarding the prosecution of an employee's claim against an employer attests to the reasonableness of the award of attorney fees. Plaintiff's attorneys David Baria and Tim Waycaster are reputable attorneys in the community and are both known for their diligence and thoroughness in representing their clients' interests. Moreover, the jury's total award of $150,000.00 compensatory and $5 million punitive damages justify plaintiff award of attorney fees in compliance with the terms of the contingency fee contract.
While it appears that the trial court may have considered some of the Rule 1.5 factors, some of the findings are clearly inaccurate. For example, the statement that the case has been litigated for 9 years is misleading. Cook's present counsel began representing
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