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Franklin v. Franklin10/31/2002
illing to pay them from their own recovery.
IV. WHETHER WALLER CAN BE AWARDED ATTORNEY FEES FROM HEATHER FRANKLIN, DESPITE THE FACT THAT HE HAD NO CONTRACT WITH HER.
. In their fourth assertion of error, Snow and Harrell argue that Waller is not entitled to attorney fees from Heather because he had no contract with her. Precedent has established that an attorney who does work that enhances the value of a settlement should be paid for his efforts, even in the absence of a contract, and one who does nothing should not be given a windfall, even if a contract exists. Pannell v. Guess, 671 So.2d 1310 (Miss. 1996). In re Estate of Brewer, 755 So.2d 1108 (Miss. Ct. App.1999). Moreover, in Pannell this Court held that an attorney who brings a wrongful death suit but has a contract with only one of the heirs does not bind the other heirs with whom he does not have a contract. This Court went on to concede that the lawyer under contract with one of the heirs may nevertheless be entitled to compensation from the other heirs if they derived a benefit from the services. This Court remanded that case and instructed the chancellor to revisit the issue of attorneys fees and award only what was reasonable under the circumstances. " f he should find that the contingency fee was not reasonable, then he may assess a fee based on quantum meruit." Pannell v. Guess, 671 So.2d at 1315. It follows from Pannell that an attorney who successfully prosecutes a wrongful death claim without representing all of the heirs must prove that he has earned a fee from the proceeds distributed to all of the heirs.
. The efforts of Snow and Harrell on behalf of all the wrongful death beneficiaries are uncontradicted. The fees sought by them are only those to which they are entitled under the court approved contract with Heather Franklin. Snow and Harrell would be entitled to compensation even absent the Chancellor approved contingency contract and Judge Kitchens's order, since they have established their entitlement on quantum meruit grounds.
. In contrast, Waller had no contract with Heather Franklin and he did not put on any proof, at the trial level, in his brief, or during oral argument to establish that he is entitled to fees from the daughter based upon any work done on her behalf. He has made no quantum meruit showing. He has only relied on having been the first attorney to file a wrongful death suit. Pannell teaches that this is not enough.
CONCLUSION
. Judge Pigott erred by vacating Judge Kitchens's November 1999 order. Judge Kitchens's joinder of Jonathan and Heather Franklin's lawsuits was within his authority and was proper under the wrongful death statute's mandate that there can be only one lawsuit based upon a wrongful death. Allowing Heather (and the estate) to retain the attorneys she chose was not at odds with the statute's mandate. There was still only one lawsuit. Nothing in the statute prohibits parties in a wrongful death action from being represented by the counsel of their choice.
. For these reasons, Judge Pigott's order is reversed and Judge Kitchens's 1999 order reinstated.
. REVERSED AND RENDERED.
PITTMAN, C.J., McRAE AND SMITH, P.JJ., COBB, EASLEY, CARLSON AND GRAVES, JJ., CONCUR. WALLER, J., NOT PARTICIPATING.
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