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Franklin v. Franklin10/31/2002
order allowing Snow and Harrell to participate, and subsequently asked the court to reconsider. However, he took no further steps to voice his disapproval until it was time to split the attorney fees. Had Waller wanted to preserve his objection to Snow and Harrell's participation and avoid the appearance of acquiescence, he should have advised Snow, Harrell, and Judge Kitchens that at the end of the case he would again dispute any claim for attorney fees and, more importantly, he should have undertaken to prepare the case for trial. However, as the previous discussion makes clear, Waller allowed Snow to do virtually all of the work. One cannot knowingly accept the services of an attorney and object for the first time when the bill comes due. Stoner v. Yandell, 188 So. 564 (Miss. 1939). Waller knew that Snow and Harrell did the work expecting to be paid when the recovery was received. Under these circumstances, the law will imply a contract.
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.
. Under Circuit Court Procedural Rules, any order signed during the
course of the proceeding is not final and can be changed during the course of the action and prior to a final judgment. Final judgment was entered by the circuit court on April 23, 2001; however, the court retained jurisdiction "to the extent required to resolve the pending issues relating to the apportionment of attorney fees and expenses among the various counsel for plaintiffs." Therefore, as Judge Kitchens's November 1999 order was not final or dispositive, it was subject to change by Judge Pigott, who had the authority and duty to change or rescind any orders as required by the law and facts.
. Judge Pigott held that while Heather had a right to join in the lawsuit filed by Jonathan, the control of the suit was in the hands of Jonathan and his attorneys since his suit was filed first. He held that since all heirs-at-law interests were represented in this one lawsuit, only one attorney's fee was payable out of the recovery. Judge Pigott also ruled, "The Circuit Court had no authority to order attorneys Snow and Harrell into the Franklin case and no authority to adjudicate the division of attorney's fees prospectively before recovery. Circuit Courts should not interject attorneys into another attorney's cases and require a division of fees."
. Judge Kitchens's November 1999 order consolidated the wrongful death cases of Jonathan and Heather (and the estate) and declared that the lawyers would handle the case as co-counsel and receive compensation based upon their contracts with their respective clients. This order did not divide attorney fees, as Judge Pigott held, rather it merely followed the wrongful death statute by stating that any recovery would be divided equally among the two heirs. The November 1999 order recognized the statutory requirement of equal distribution among the heirs; it left the compensation of the attorneys to their respective employment contracts.
. Snow and Harrell argue that Judge Pigott's vacating Judge Kitchens's November 1999 order was in error because Judge Kitchens's prior order was proper and reasonable. They argue the prior order: (1) protected the interest of both clients by allowing the lawyer of their choice to represent their interest; (2) it was fair to both sides because it gave the benefit of their respective contracts and gave a clear statement of the basis for each lawyer's ultimate compensation; (3) it was reasonable; (4) it followed the wrongful death statute regarding joinder; and (5) it contemplated that all attorneys would work toget
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