The Better Chancery Practice Blog

Franklin Church, built in 1841, is an out-of-the-way jewel in the Holmes County countryside south of Lexington. I posted about it here back in February.

A reader brought my post to the attention of Julian Watson, one of the church’s members and a leader in efforts to preserve it and the heritage of its membership. He invited my wife and me to attend and enjoy the church’s annual Homecoming on April 23, 2017.

And so we found ourselves in the embrace of this country church on the holy day of its family reunion. They made us welcome to their worship, music, food and fellowship.

As the throng gathered, Mr. Watson welcomed three students from nearby French Camp Academy.

People explored the cemetery in search of ancestors, and others studied the memorabilia in the vestibule of the church. [Click on any smaller photo to view a slide show]

Musicians rehearsed, and then played hymns that provided a segue into the service.

Mr. Watson welcomed everyone.

Ms. Virginia Dickinson, who worked to get the church ready for the event, addressed the congregation.

The preacher came from French Camp and led the worship.

Then it was time for the food. It was too cool and damp for dinner on the grounds, so the church became a dining hall. At Homecoming in a country church, communion is breaking bread together, with fried chicken, strawberry cake, macaroni and cheese, ham, cabbage, pulled pork, pecan pie, brownies, ice box pie, sweet tea, and shared abundance.

And then, too soon, it was over, and we headed home to Meridian, our thoughts full of the special spirit of this place.

There is a Homecoming here every year the Sunday after Easter. It’s the only service held at Franklin Church during the year. There’s no longer any local congregation. Almost all of the member families have moved to other communities and even other states, but they strive to make Homecoming.

Homecoming happens every Sunday somewhere at churches across Mississippi. It’s in Mississippi DNA to try to keep the past from dying, to bring it into the present to look at, breathe life into it, and help others, particularly young ones, understand it. That’s what Will Faulkner of Oxford was trying to tell us when he wrote, “The past is never dead; it’s not even past.” Sometimes Mississippians romanticize and clean up the past, even when it is dark and malevolent, but always the past is respected and even revered. Some people say that Mississippians live in the past. I think that’s incorrect. I think Mississippians live in the present, but want the past to co-exist with it. That can be a beautiful thing, and sometimes not.

At Homecoming in Franklin, it’s a beautiful thing.

I am totally comfortable with the fact that one side in nearly every case that I decide is convinced that I am: (a) a raving, total, lunatic; (b) an idiot who lacks common sense; (c) a gullible fool duped by the liars on the other side; (d) an ignoramus about the law; (d) “on the take” from the other side or from sinister, unknown vectors; or (e) any combination or all of the above.

I get that. It comes with the territory. It’s part of the reason why I get a paycheck from the state each month. It would be in my job description if I had one.

But what I do not get, and what I totally do not appreciate, is getting blamed for the lawyer’s lapses. It happens, and when I find out about it, it chaps me to no end.

One example occurred several months ago when a frustrated party called the chancery clerk and complained that she was told that I was refusing to set a case for trial. I pulled the file and found that it was a case for contempt and modification that had been pending several months. Neither lawyer had answered discovery, which was overdue. No one had filed a motion for a trial setting. There was no scheduling order. There had been no status conference. Where, then, had the unfortunate client gotten the idea that I was refusing to set the case for trial? Surely not from her lawyer, right?

A judge told me recently that he had a similar experience and set the case for the following Saturday. That nipped that bud.

When I was in practice, several times I had people wanting to hire me for contempts or modifications who had been previously represented by a particular lawyer in town. Their property settlement agreements or agreed judgments were disadvantageous to them, and I asked why they had agreed to those terms in the first place. Their answer every time was that the lawyer had asked for a conference with the court and emerged to report sorrowfully that the judge said either to agree to those terms or else. They felt they had no choice. I can tell you that no chancellor in our district ever did such a thing. I can also tell you that I carefully avoided in-chambers conferences with that lawyer afterward.

When Judge Gene Fair was a chancellor, he refused to allow in-chamber conferences with lawyers alone for that very reason. He either conducted conferences from the bench, or invited the clients into chambers along with the lawyers.

It’s okay to blame a bad outcome for your client on the judge’s bad judgment or ignorance of the law.

It’s not okay to shrug off your lack of attention, or failure to do your job, or inability to negotiate effectively as the judge’s fault.

When the Livingston Property Owners Association (LPOA) denied Paul and Janice Berlin permission to construct a fence where they wished on their property, the couple went ahead anyway with their plans.

The LPOA sued in chancery court, and the chancellor ordered the Berlins to remove part of the fence and awarded the association reasonable attorney’s fees. The Berlins appealed.

In Berlin v. LPOA, decided April 25, 2017, the COA affirmed. One of the grounds for appeal was the manner in which the trial court made its determination about attorney’s fees. Judge Wilson’s declaration on the issue for a unanimous court describes both the appellants’ claim and its disposition:

¶29. The Berlins argue that the chancellor erred in awarding attorneys’ fees to LPOA without conducting a hearing on the reasonableness of the amount awarded. This issue requires discussion of some additional procedural background.

¶30. At the conclusion of LPOA’s case-in-chief in September 2014, LPOA’s attorney in the litigation, James L. Martin, requested permission to wait until after the conclusion of the trial to submit an affidavit regarding LPOA’s attorneys’ fees and costs. The chancellor granted his request, and Martin then asked whether LPOA would “be permitted to have a hearing as to the reasonableness of those fees.” The chancellor responded, “Yes, of course. Always.” The next day, at the conclusion of the trial, the chancellor gave the parties oral instructions regarding post-trial briefing and submissions, which included the following:

“[T]he parties each ask that their attorneys be allowed to present testimony of fees . . . at a later date. This Court hereby requires the same to be done in writing. The affidavit . . . as to the reasonableness and necessity of said services can be attached thereto.”

In her final instructions to the parties, the chancellor did not mention a hearing on attorneys’ fees; rather, she indicated that she would issue her opinion after receiving the parties’ submissions.

¶31. On November 14, 2014, Martin filed an affidavit in support of LPOA’s request for
attorneys’ fees and costs of $17,485.58. Martin stated that he had over thirty years of
experience as a practicing attorney, including significant experience in real property matters, and that his usual hourly rate was $300. Martin’s affidavit also addressed the other factors set out in Rule 1.5 of the Mississippi Rules of Professional Conduct. [Fn omitted] Martin attached an itemization and hourly breakdown of his work on the case, which showed a total of 59.75 hours billed from 2010 to 2014. On November 17, 2014, one of the Berlins’ attorneys filed a similar affidavit in support of their request for $31,637.50 in attorneys’ fees and costs, along with itemized billing records. The Berlins’ request for attorneys’ fees was based on approximately 125 hours of attorney time at a rate of $250 per hour.

¶32. On June 24, 2015, the chancellor issued her opinion and final judgment and found that LPOA was entitled to recover $17,485.58 in attorneys’ fees and costs pursuant to section 14.01 of the covenants. In their motion for reconsideration or a new trial, the Berlins objected that they had not been “afforded an opportunity to contest . . . whether [LPOA’s attorneys’ fees] were reasonable and necessary.” LPOA responded that the chancellor’s posttrial instructions put the Berlins on notice that the court intended to rule on the issue without a further hearing. LPOA also argued that its attorney’s affidavit was sufficient and that no hearing was necessary. On September 3, 2015, the chancellor denied the Berlins’ motion without specifically addressing the issue of attorneys’ fees.

¶33. The Berlins do not dispute that a prevailing party in an action to enforce the covenants is entitled to an award of attorneys’ fees, and section 14.01 makes clear that a prevailing party is entitled to such an award. See Journeay v. Berry, 953 So. 2d 1145, 1162-63 (¶¶63-66) (Miss. Ct. App. 2007) (holding that valid restrictive covenants are contractual in nature and therefore may support an award of attorneys’ fees). However, “[a] contractual provision to pay attorney’s fees is not a blank check; it is limited by the reasonableness of the fee which includes an analysis of whether work performed was actually necessary.” Pikco Fin. Inc. v. Staten (In re Staten), 559 B.R. 666, 674 (Bankr. S.D. Miss. 2016). “[W]e review the issue of the reasonableness of the trial court’s award of attorneys fees applying an abuse of discretion standard. This Court will not disturb the finding of the trial court on such an issue unless it is manifestly wrong or exhibits a manifest abuse of discretion.” Microtek Med. Inc.
v. 3M Co., 942 So. 2d 122, 130 (¶24) (Miss. 2006), abrogated on other grounds by Upchurch Plumbing Inc. v. Greenwood Utils. Comm’n, 964 So. 2d 1100, 1116-17 (¶¶41-43) (Miss. 2007). “In this context, the word ‘manifest’ has been defined to mean ‘unmistakable, clear, plain, or indisputable.’” Id. (quoting Mosley v. Mosley, 784 So. 2d 901, 904 (¶7) (Miss. 1997)).

¶34. No rule requires a chancellor to hold a hearing prior to making a determination as to the reasonableness of requested attorneys’ fees. In addition, Mississippi Code Annotated section 9-1-41 (Rev. 2014) provides:

In any action in which a court is authorized to award reasonable attorneys’ fees, the court shall not require the party seeking such fees to put on proof as to the reasonableness of the amount sought, but shall make the award based on the information already before it and the court’s own opinion based on experience and observation; provided however, a party may, in its discretion, place before the court other evidence as to the reasonableness of the amount of the award, and the court may consider such evidence in making the award.[Fn 4]

[Fn 4] Section 9-1-41 applies “[i]n any action” in which an award of reasonable attorneys’ fees is authorized and thus applies regardless of whether the award is based on a statute, a contractual provision, or common law. See Staten, 559 B.R. at 670 n.4.

Finally, although a chancellor generally should provide some on-the-record analysis of the factors set out in Rule 1.5 of the Rules of Professional Conduct, the failure to do so is not per se reversible error, and the chancellor’s award may be upheld so long as the amount is “not unreasonable.” West v. West, 88 So. 3d 735, 747 (¶58) (Miss. 2012); see Jordan v. Jordan, 105 So. 3d 1130, 1135-36 (¶¶24-28) (Miss. Ct. App. 2012) (Fair, J., specially concurring).

¶35. Given the history of this litigation, the amount of fees awarded by the chancellor was “not unreasonable,” and we cannot say that she abused her discretion. The case was pending for five years and involved multiple depositions, a two-day trial, a motion to reopen the case, and other post-trial briefing and motions. Nonetheless, LPOA requested and was awarded attorneys’ fees for less than 60 hours of attorney time. We also note that the Berlins claimed that they were entitled to a considerably larger award of attorneys’ fees and costs ($31,637.50 as compared to $17,485.58) and claimed that their lawyers reasonably spent more that twice as many hours working on the case (about 125 hours as compared to about 60 hours). If the Berlins’ fee request was even in the ballpark of “reasonable,” then the chancellor’s award to
LPOA cannot be unreasonable. Finally, we note that although LPOA’s attorney filed his detailed time records with his affidavit in November 2014, the Berlins have never identified any duplicative or unnecessary time entries or articulated any way in which LPOA’s requested fees are unreasonable. Given the particular facts and history of this case, the amount of fees awarded was not unreasonable, and we cannot say that the chancellor abused her discretion by awarding fees without a hearing or additional findings of fact. See West, 88 So. 3d at 747 (¶58). Accordingly, the award of attorneys’ fees is affirmed.

A few points:

• If you really, really, really want to make a record on the reasonableness and amount of attorney’s fees, you’d better insist on an on-the-record hearing. This case says you have no right to it, but you can’t really complain later if you don’t insist and make a record of your insistence.
• I am so glad to see MCA 9-1-41 cited favorably in an appellate decision. It’s an underutilized tool, but one that can have considerable power.
• Clever how Judge Wilson turned the Berlins’ argument as to the amount of their own attorney’s fees against them.

The lawyer comes crashing breathlessly into your office and throws a sheaf of papers onto your desk. You read enough to see that it’s a request for a R65 TRO. “It’s a real emergency, judge,” he says. You quiz him about the facts in the pleading, and it does seem to be urgent. The lawyer explains that notice can’t be given for this or that reason, the papers are compliant with R65, and you reluctantly agree to set a hearing.

“How about this afternoon at 1:30?” You offer.

“Can’t do it then, judge, I’m scheduled to be in Justice Court.”

“What about tomorrow?”

“Nope. I have to be at a docket call in Decatur.”

“Wednesday? I can delay the start of a two-day trial.”

“Can’t. Temporary hearing in Laurel.”

“Okay. Thursday after lunch on the second day of that trial.”

“Only if I’m done with arraignments in Carthage and can make it back in time.”

“Friday?”

“Well, we’re leaving Friday to take the kids to DisneyWorld; next week is Spring Break.”

And so on and so forth.

I compared notes with several other chancellors last week at the judges’ meeting, and we all have had similar experiences. I, for one, wonder why that lawyer took the “emergency” case in the first place, knowing he didn’t have a free minute over the next several weeks.

If it’s truly an emergency, then be prepared to deal with it right away. If the judge is willing to clear the decks to accommodate you, then you’d better reciprocate, because the next time you have a similar urgency, you likely won’t receive such kindly treatment.

In a previous life, another lawyer and I approached Judge Warner and asked him to give us a divorce trial setting “at the earliest possible date,” because we both had troublesome clients that we needed to be shed of. Judge Warner cordially offered a date later that week, which we turned down because of conflicts. After he unsuccessfully offered us several other dates within the next two months, he became noticeably exasperated. He flipped the calendar to December — 10 months distant — and pencilled the case in for the week before Christmas. “Bring me an order,” he said icily, and dismissed us from his office. I think we settled that one.

Judges’ Meeting

Next post May 1, 2017

Reprise replays posts from the past that you might find useful today …

The Two Types of Lawyers

July 31, 2014 § 4 Comments

Globetrotting for the next little while, so posts will be somewhat sparse.

I’ll have little-to-no internet access, so moderation of comments will be little-to-none.