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Franklin v. Franklin10/31/2002
DATE OF JUDGMENT: 6/5/2001
NATURE OF THE CASE: CIVIL - WRONGFUL DEATH
DISPOSITION: REVERSED AND RENDERED - 10/31/2002
. At issue in this case is how attorneys' fees in a wrongful death suit should be distributed. Jonathan Paul Franklin (Jonathan) brought suit on July 13, 1999, for the wrongful death of his father. He was represented by attorney Bill Waller, Sr. (Waller). On July 20, 1999, Jonathan's sister, Heather Nicole Franklin (Heather), also brought suit for the same wrongful death. She was represented by attorneys Fred M. Harrell, Jr. (Harrell) and Paul Snow (Snow). Circuit Court Judge John T. Kitchens ordered the cases consolidated. His order provided that in the event of recovery, the proceeds would be distributed equally among the heirs, and their attorneys would be compensated according to their existing contracts with their respective clients. Pursuant to the order, the attorneys worked together preparing for trial for over a year and a half, with Snow and Harrell doing most of the work. The case settled on the day before trial. Thereafter, Waller sought all the attorney fees, claiming entitlement based upon the fact that he filed the first wrongful death lawsuit. Judge Kitchens recused himself, and Judge Joe N. Pigott was appointed. Judge Pigott vacated Judge Kitchens's order and awarded all attorney fees in the Franklin case to Waller.
. Snow and Harrell's Motion for New Trial was denied July 23, 2001. Aggrieved by the lower court's ruling, Snow and Harrell appeal, presenting the Court with the following issues:
I. WHETHER THE SUCCESSOR JUDGE ERRED IN REFUSING TO AWARD ATTORNEY FEES TO SNOW AND HARRELL WHERE THEY WERE THE ONLY ATTORNEYS WHOSE CONTRACT WAS APPROVED PRIOR TO THE INSTITUTION OF SUIT AND WHERE THEY DID A MAJORITY OF THE WORK ON THE WRONGFUL DEATH SUIT.
II. WHETHER THERE WAS AN IMPLIED CONTRACT BETWEEN WALLER AND SNOW AND HARRELL FOR THE PAYMENT OF ATTORNEY FEES.
III. WHETHER JUDGE PIGOTT ERRED IN VACATING THE NOVEMBER 1999 ORDER OF JUDGE KITCHENS AFTER SNOW AND HARRELL RELIED ON IT IN PREPARING THE CASE FOR TRIAL.
IV. WHETHER THE FACT THAT WALLER HAD NO CONTRACT WITH HEATHER FRANKLIN MEANS HE IS NOT ENTITLED TO ATTORNEY FEES FROM HER.
FACTS
. On July 9, 1999, Johnny Ray Franklin (Franklin) was killed in an automobile accident. Franklin had two heirs, a minor son named Jonathan, and an adult daughter named Heather. Jonathan, through his mother Cathy Phillips, filed a wrongful death suit on July 13, 1999. The suit was filed solely on Jonathan's behalf and did not purport to represent the interests of any other heirs. At the time, Jonathan was represented by William Wright (Wright). Shortly after the lawsuit was filed, however, Wright was replaced as counsel by Waller. Neither Wright nor Waller had their contingency fee contracts approved by the chancery court before filing suit. Neither obtained the approval of the chancery court to file a wrongful death suit on behalf of the estate; nor did they timely open a guardianship for Jonathan.
. Also killed in the crash was a passenger, Timothy Hawkins (Hawkins). His heirs included both parents and four siblings, all of whom were represented by Snow and Harrell. On March 16, 2000, the trial judge, Honorable John T. Kitchens, ordered that suit filed on behalf of Hawkins's heirs be consolidated with the suit for Franklin's heirs. The Hawkins case went to trial in August, 2000, and, after the jury awarded $470,000 in compensatory damages, the Hawkins case settled for $700,000 during the punitive damages phase of the trial.
. On July 20, 1999, Heather opened an estate in the chancer
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