The Half Fee on Appeal

April 9, 2019 § 1 Comment

It has been a long-standing rule in Mississippi that the prevailing party in an appeal is entitled to recover an attorney’s fee equal to one-half of the attorney’s fees awarded by the chancery court. For years, all that was required was either a separate motion or a section of the brief seeking that relief, with authorities.

That has changed, and a recent COA decision highlights how you need to approach the issue from here on out. In Brown v. Hewlett, handed down March 12, 2019, the court denied the attorney’s fee. Judge Jack Wilson’s opinion explained:

¶44. In his appellate brief, Hewlett requests an additional award of $2,500 in attorney’s fees for his defense of this appeal. Hewlett’s request appears to be well-taken because we have affirmed the chancellor’s finding that Brown was in contempt. See Heisinger [v. Riley], 243 So. 3d [248] at 260 (¶48) [(Miss. Ct. App. 2018)]. In such cases, we generally award appellate attorney’s fees equal to one half of the attorney’s fees awarded by the chancery court. See Riley v. Riley, 196 So. 3d 1159, 1164 (¶23) (Miss. Ct. App. 2016) (“Generally, on appeal this Court awards attorney’s fees of one-half of what was awarded in the trial court.”); accord Grant v. Grant, 765 So. 2d 1263, 1268 (¶19) (Miss. 2000).

¶45. Hewlett’s request is clearly set out in a separate section of his appellate brief with a citation to on-point authority. However, our Supreme Court recently held that a request for appellate attorney’s fees must be made in a motion that complies with Mississippi Rule of Appellate Procedure 27(a). Latham v. Latham, No. 2017-CA-00856-SCT, 2019 WL 242958, at *4-*5 (¶¶21-24) (Miss. Jan. 17, 2019). Therefore, we deny Hewlett’s request for appellate attorney’s fees without prejudice. Hewlett may renew his request in a motion that complies with Rule 27(a). Any such motion should be filed before the mandate issues.

Lesson: File a motion that complies with MRAP 27(a) before the mandate issues.

Of even greater interest, perhaps, are the specially concurring opinions of Judges McDonald and McCarty urging that the half-fee rule be abolished in favor of a reasonable fee based on time and effort. because you might want to argue this on appeal, I am providing those two opinions with their authority here:

McDONALD, J., SPECIALLY CONCURRING:

¶48. I recognize that the common law rule for granting attorney’s fees to the prevailing party on appeal is well established. Yates v. Summers, 177 Miss. 252, 170 So. 2d 827, 832 (1936); Riley v. Riley, 196 So. 3d 1159, 1164 (¶23) (Miss. Ct. App. 2016). But, I agree with Judge McCarty’s other specially concurring opinion that the amount of fees should be based on the time and energy expended on the appeal as opposed to an arbitrary “one-half” rule.

¶49. An analysis as outlined in McKee v. McKee, 418 So. 2d 764 (Miss. 1982), should be employed to determine the amount of attorney’s fees to be awarded to the prevailing party on appeal.

¶50. The Supreme Court recently ruled in Latham v. Latham, No. 2017-CA-00856-SCT, 2019 WL 242958 at *4-*5 (¶21-24) (Miss. Jan. 17, 2019), that submission of a motion and time records is the better practice and has now required such pursuant to Mississippi Rules of Appellate Procedure 27(a).

¶51. In the case under consideration, I believe that the majority made the correct decision by dismissing the request for attorney’s fees without prejudice and allowing the prevailing party to make a request in compliance with Mississippi Rule of Appellate Procedure 27(a). I therefore specially concur with the majority for the foregoing reasons.

WESTBROOKS AND McCARTY, JJ., JOIN THIS OPINION. TINDELL, J., JOINS THIS OPINION IN PART.

McCARTY, J., SPECIALLY CONCURRING:

¶52. I agree with the conclusions of the majority in all respects but write separately to emphasize that attorneys are bound by Rule 1.5 of the Mississippi Rules of Professional Conduct to only take a “reasonable fee.” The common law practice of seeking one-half of the attorney’s fees awarded by the chancery court is not tethered to our rules or the actual work performed by the attorney. In light of the Supreme Court’s ruling in Latham v. Latham, No. 2017-CA-00856-SCT, 2019 WL 242958 (Miss. Jan. 17, 2019), the practice should be fully eliminated

¶53. In Mississippi, “[a] lawyer’s fee shall be reasonable.” M.R.P.C. 1.5(a). As a matter of law, “the word ‘shall’ is a mandatory directive.” Ivy v. Harrington, 644 So. 2d 1218, 1221 (Miss. 1994). Rule 1.5 gives us a list of eight factors that guides whether the fee is reasonable—such as “the time and labor required,” or “the fee customarily charged in the locality for similar legal services,” and the experience and reputation of the attorney. M.R.P.C. 1.5(a)(1)-(8). These are “also known as the McKee factors . . . .” Tunica County v. Town of Tunica, 227 So. 3d 1007, 1031 (¶58) (Miss. 2017).

¶54. Therefore if one is seeking attorney’s fees, one must be able to show that it is a reasonable fee. Although in certain cases, such as this one, a flat fee or a request for a certain amount could be approved, in the vast majority of cases the attorney will need to demonstrate reasonableness. I believe this request cannot be done with a blanket ask for “one-half of the attorney’s fees awarded by the trial court.” The reasoning is common sense. The work in the trial court may have been formidably complex, as in this case, and required multiple attorneys over multiple years. In contrast, it might be only one attorney who handles an appeal, which might span the better part of a single year. The work of an appeal may not warrant one-half the trial-court fee, rendering it an unreasonable fee.

¶55. Conversely, in some appeals the written and oral advocacy required may be much greater than the work in a trial court. A one-day trial on a single issue may not require a large fee, but a change in the law or statute might warrant extensive briefing and research for an appeal. One-half the trial court fee would not be reasonable in such a situation, as more would be warranted.

¶56. Even at the dawn of the twentieth century it was simply “a matter of common knowledge amongst the profession that a less fee should be allowed for services in the Supreme Court than in the circuit or chancery court.” Curphy & Mundy v. Terrell, 89 Miss. 624, 42 So. 235, 236 (1906). In that case, the Supreme Court ruled that “[t]he whole profession may be said to have knowledge” that “[t]he old tariff in use in this state customarily made the fee in this court one-half the fee in the court below.” Id. By 1936, the Supreme Court was holding that “[i]t has long been our custom under such circumstances and in such cases to allow one-half of the fee allowed in the lower court when the fee fixed below is reasonable and proper.” Yates v. Summers, 177 Miss. 252, 170 So. 827, 832 (1936).

¶57. As a result, the one-half fee comes to us through years of precedent and was once so common that it was granted without citation. See, e.g., Jenkins v. Jenkins, 278 So. 2d 446, 450 (Miss. 1973) (no citation of law while granting the one-half fee). It was simply that “[t]he rule of this Court is to allow one-half of the amount awarded by the trial court.” Keyes v. Keyes, 252 Miss. 138, 145, 171 So. 2d 489, 491 (1965); [FN 8] Kyzar v. Kyzar, 248 Miss. 59, 64, 157 So. 2d 770, 772 (1963) (granting $125 for appellate fees, half of the $250 for trial court work). The one-half fee does not appear to ever have been actually one of the Supreme Court Rules that were in effect at the time before the adoption of the Rules of Appellate Procedure, and was elsewhere referred to as “the Court’s policy . . . to award attorneys’ fees on appeal of one-half of that allowed by the trial court. . . .” Tighe v. Tighe, 239 Miss. 666, 670, 124 So. 2d 843, 843 (1960). It may have had its origins in part or in whole in statutes which allowed chancellors to “divide[] as may appear equitable” the costs of suit. Miss. Code Ann. 1942, § 1583 (recompiled 1956); Powell v. Booth (In re Powell’s Will), 239 Miss. 10, 17, 121 So. 2d 1, 3 (1960) (citing to the statute for a one-half fee).

[Fn 8] In Keyes, the Court had even ordered the one-half fee when the appellant did not prevail in the appeal, but was demonstrably without funds and “[i]mportant questions were decided, and very sacred rights were in balance.” Id. at 491; accord Nix v. Nix, 253 Miss.
565, 571, 176 So. 2d 297, 300 (1965) (granting a one-half fee to losing party upon remand).

¶58. Regardless of its origin, and despite its lengthy history, the one-half fee award should be fully retired. Ultimately, the needs and requirements of advocacy between the trial court and appeal can be very different, and a generic request for one-half the trial court fee does
not properly honor Rule 1.5 or its requirement of reasonableness. Therefore any attorney seeking fees from this Court or any other is best served by adhering closely to the McKee factors and demonstrating that the fee they seek is reasonable.

WESTBROOKS, J., JOINS THIS OPINION IN PART. McDONALD, J., JOINS IN PART WITH OPINION.

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