Denham Law Firm, PLLC v. David Anthony Nelson

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2015-CA-00660-COA

DENHAM LAW FIRM, PLLC APPELLANT

v.

WRONGFUL DEATH BENEFICIARIES AND APPELLEES
HEIRS-AT-LAW OF KIMBERLY ANN
SIMMONS, DECEASED: DAVID MICHAEL
NELSON AS ADMINISTRATOR OF THE
ESTATE OF KIMBERLY ANN SIMMONS;
DAVID ANTHONY NELSON; SAVANNAH
SIMMONS; MISTY LOPER; SHANNON
SIMMONS; RACHEL BENEFIELD AND
TERESSA NICOLE NELSON, A MINOR, BY
AND THROUGH HER GUARDIAN, SHERYL
PHILLIPS

DATE OF JUDGMENT: 03/19/2015
TRIAL JUDGE: HON. HOLLIS MCGEHEE
COURT FROM WHICH APPEALED: JACKSON COUNTY CHANCERY COURT
ATTORNEYS FOR APPELLANT: EARL L. DENHAM
ALEXANDER IGNATIEV
MATTHEW PAUL PAVLOV
ATTORNEYS FOR APPELLEES: KRISTOPHER W. CARTER
ALBERT R. JORDAN IV
NATURE OF THE CASE: CIVIL - CONTRACT
TRIAL COURT DISPOSITION: GRANTED PARTIAL SUMMARY
JUDGMENT TO THE APPELLEES
DISPOSITION: REVERSED AND REMANDED - 01/03/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

BEFORE IRVING, P.J., CARLTON AND GREENLEE, JJ.

CARLTON, J., FOR THE COURT:

¶1. The six wrongful-death beneficiaries and heirs-at-law of Kimberly Simmons settled

a wrongful-death lawsuit and then filed the instant action to determine the fees and costs
owed to Denham Law Firm PLLC under contingent-fee contracts signed by four of the

beneficiaries.1 In their declaratory-judgment complaint filed in Jackson County Chancery

Court, the beneficiaries sought a determination of the rights and money owed under the

contingent-fee contracts. The beneficiaries claimed that the contracts’ attorney’s lien

provision for the value of services actually performed at Denham Law’s normal hourly rates

and for all the firm’s costs applied rather than the contracts’ contingency-fee provision.

¶2. The beneficiaries subsequently filed a motion for partial summary judgment. They

argued that no genuine issue of material fact existed as to the applicability of the contracts’

attorney’s lien provision. They also asserted that no genuine issue of material fact existed

as to the calculation of the attorney’s lien as defined by the terms of the contracts.

¶3. In granting partial summary judgment to the beneficiaries, the chancellor found that

four of the six beneficiaries entered into contingent-fee contracts with Denham Law. The

chancellor further found that the beneficiaries then terminated the firm’s representation. The

chancellor also determined that the beneficiaries’ termination of Denham Law’s

representation triggered the attorney’s lien provision in the contracts. In interpreting the

contracts’ terms, the chancellor applied the attorney’s lien provision that provided

reimbursement for actual services performed at normal hourly rates and for actual costs. The

chancellor then concluded that Denham Law’s attorney’s fees amounted to $10,708.64 and

1
See Miss. Code Ann. § 11-7-13 (Rev. 2004) (establishing a cause of action in
Mississippi for wrongful-death beneficiaries).

2
that its costs amounted to $14,791.05. The chancellor denied Denham Law’s motion to

reconsider or to alter or amend the grant of partial summary judgment, and Denham Law

appeals to this Court.

¶4. On appeal, Denham Law raises the following issues: (1) whether the chancellor erred

by finding that the beneficiaries had standing to sue Denham Law; (2) whether the chancellor

erred by modifying the contract terms between Denham Law and the beneficiaries; (3)

whether the chancellor erred by not finding that the beneficiaries’ attorneys breached a

fiduciary duty to Denham Law; and (4) whether the chancellor erred by not disqualifying the

beneficiaries’ attorneys from representing the beneficiaries in this case.

¶5. Upon review of the chancellor’s grant of partial summary judgment, we find no

evidence in the record to support the chancellor’s determination that the beneficiaries

terminated Denham Law. Due to the lack of such evidence, we find the record reflects a

dispute of material fact as to whether the contracts’ attorney’s lien provision applied.2 As

a result, we reverse the chancellor’s judgment and remand the case for further proceedings

consistent with this opinion.3

2
See also Franklin v. Franklin ex rel. Phillips, 858 So. 2d 110, 117 (¶22) (Miss.
2003) (“[A]n attorney whose efforts contribute to obtaining a settlement or in enhancing a
settlement is entitled to attorney[’s] fees.”); Pannell v. Guess, 671 So. 2d 1310, 1315 (Miss.
1996) (holding that the chancellor should have allowed the attorney of one of the
beneficiaries to prove he was entitled to some compensation from the other five beneficiaries
for his work in negotiating the settlement from which all the beneficiaries derived financial
benefit).
3
After due consideration of the record, briefs, oral arguments, and applicable law,
the majority opinion herein respectfully addresses the legal issues necessarily involved to

3
 FACTS

¶6. On October 20, 2010, Simmons hired Denham Law to represent her in a medical-

malpractice lawsuit. Earl Denham, Denham Law’s president and partner, stated in his

affidavit that Simmons chose his firm due to Denham Law’s advertising and reputation.

After Simmons died on April 21, 2011, four of her six beneficiaries entered into contingent-

fee contracts with Denham Law to represent them in the derivative wrongful-death lawsuit.

Each of the four contracts contained the following language:

I do hereby assign, convey, transfer, and deliver unto said [a]ttorneys
as their fees . . . an undivided [f]orty [p]ercent (40%) interest in and to all of
my above[-]mentioned claim and all sums which may be recovered on my
behalf. It is my said attorney’s sole discretion as to when suit shall be filed.
This contract does not bind either party with regard to appeal, and in fact[,] the
attorneys specifically have no responsibility to file any postjudgment
pleadings. It is understood and agreed that[,] in addition to [a]ttorney[’s] fees,
all costs and expenses of this litigation will be reimbursed to my [a]ttorneys by
me on my claim at the time of settlement. It is further understood and agreed
that my [a]ttorneys may act as co-counsel or associate with any other attorney
at no extra cost to me at my [a]ttorneys’ sole discretion.

I do hereby grant to Denham Law . . . an attorney’s lien for the value
of its services actually performed at its normal hourly rate and for all its costs,
advances, and expenses of whatever nature in connection with my claim,
including but not limited to [the] fees of associates and paralegals. Any
proceeds that I receive from my litigation will be delivered in a check or draft
payable to the firm of Denham Law . . . and to me, jointly, to secure payment
of the firm’s attorney’s lien. This paragraph shall survive any termination of
this contract for any reason.

resolve this appeal. The special concurrence agrees that the chancellor’s grant of summary
judgment should be reversed and remanded. However, the separate opinion’s discussion
advocating a rule change to the Uniform Chancery Court Rules is extraneous to the
resolution of the instant appeal. This Court lacks the authority to impose such a rule change.

4
(Emphasis added).

¶7. According to Denham’s affidavit opposing summary judgment, his firm utilized its

own resources to obtain the expert opinions and the research needed to prepare the lawsuit.

Denham also stated that it was his firm’s advertising and reputation that initially secured this

case. The record reflects no dispute as to Denham’s statement in his affidavit that his firm

filed the lawsuit in Harrison County Circuit Court on August 22, 2012. The lawsuit was later

removed to federal court on January 7, 2013. Following their termination around September

12, 2013, Kristopher Carter and Albert Jordan left Denham Law and began their own law

firm. Thus, the parties agree that, at the time Denham Law filed the lawsuit on the

beneficiaries’ behalf, Carter and Jordan both worked as attorneys for Denham Law. The

parties also agree that Carter, as an employee of Denham Law, worked on both the medical-

malpractice lawsuit and the subsequent wrongful-death case.

¶8. After terminating Carter and Jordan, Denham traveled to Ohio for heart surgery. In

his affidavit, Denham asserted that, during this time, two or more of his employees “removed

confidential firm information, including case file information and forms [that] had been

developed with considerable expense to the firm over many years[,] and [the employees]

delivered [the material] to Carter and Jordan, who continue to use [the information] in their

own practice.” On appeal, Denham asserted during oral argument, as he did in his affidavit,

that the removal of information from his office was done without his authorization or

agreement. Denham further claims that Carter and Jordan removed the file for the present

5
case from Denham Law without the agreement or consent of Denham Law. The

beneficiaries submitted no evidence to contradict or dispute Denham’s affidavit.

¶9. After their departure from Denham Law, Carter and Jordan obtained a settlement offer

in federal court on the beneficiaries’ wrongful-death action. The beneficiaries then placed

the instant matter before the chancery court by filing their declaratory-judgment action on

July 23, 2014, to determine the amount owed to Denham Law under the firm’s contingent-fee

contracts with four of the beneficiaries. The declaratory-judgment complaint asserted that

the four beneficiaries who initially engaged Denham Law had terminated the firm’s

representation, and then all six of the beneficiaries had signed contracts with Carter and

Jordan’s firm. As previously stated, however, the record before this Court contains no

evidence to show that the beneficiaries terminated Denham Law’s representation.

¶10. The beneficiaries further alleged in their complaint that Denham Law refused to

provide the amount of the attorney’s lien that the firm claimed against the beneficiaries’

settlement proceeds. The beneficiaries therefore asked in their complaint that the chancellor

apply the attorney’s lien provision of the contingent-fee contracts and determine the amount

of the attorney’s lien to which Denham Law was entitled. The beneficiaries also requested

in their complaint that the chancellor award attorney’s fees based on Denham Law’s alleged

refusal to honor the lien clause contained in the contingent-fee contracts.

¶11. In response to the beneficiaries’ July 23, 2014 declaratory-judgment complaint,

Denham Law filed a pre-answer motion on July 31, 2014, that sought the following: (1)

6
dismissal of the beneficiaries’ complaint under Rule 12(b)(6) of the Mississippi Rules of

Civil Procedure for failure to state a claim upon which relief could be granted; (2) dismissal

of the beneficiaries’ complaint due to the beneficiaries’ lack of standing; (3) disqualification

of Carter and Jordan as the beneficiaries’ attorneys; (4) sanctions against Carter and Jordan

under Rule 11 of the Mississippi Rules of Civil Procedure; (5) damages against Carter and

Jordan under the Litigation Accountability Act; and (6) all other appropriate sanctions and

relief.4

¶12. On August 4, 2014, the Mississippi Supreme Court appointed a special judge to hear

the matter. On August 25, 2014, Denham Law filed its responses to the requests for

admission propounded by the beneficiaries. The following month, on September 15, 2014,

the beneficiaries filed a motion for partial summary judgment. The beneficiaries asserted

that no genuine issue of material fact existed as to whether the terms of Denham Law’s

contracts with four of the beneficiaries defined the proper calculation method of the

attorney’s lien. As a result, the beneficiaries sought summary judgment on that issue.

¶13. On September 22, 2014, Denham Law filed another motion seeking to disqualify

Carter and Jordan as the beneficiaries’ attorneys. As in its earlier motion filed on July 31,

2014, Denham Law again asserted that Carter and Jordan were material witnesses in the

matter and that the chancellor should therefore disqualify them from representing the

4
See M.R.C.P. 12(a)(1) (discussing how the filing of a permitted Rule 12(b) motion
alters and extends the time period for filing a responsive pleading).

7
beneficiaries. As also argued in the July 31, 2014 motion to dismiss, Denham Law claimed

that the beneficiaries possessed no cause of action against the firm, possessed no standing

to sue, and had suffered no damages. Significant to the procedural posture of this case, the

chancellor issued no ruling on Denham Law’s motion to dismiss the beneficiaries’ complaint

for lack of standing until he granted the beneficiaries partial summary judgment.5 The

chancellor’s grant of the dispositive motion requesting partial summary judgment is the

subject of the instant appeal.

¶14. On October 16, 2014, the chancellor entered an order denying Denham Law’s motions

to disqualify the beneficiaries’ attorneys, for sanctions under Rule 11, and for damages under

the Litigation Accountability Act. However, as stated, the chancellor issued no ruling at that

time on either Denham Law’s motion to dismiss for lack of standing or its motion to dismiss

for failure to state a claim under Rule 12(b)(6). Instead, the chancellor ruled on these bases

of Denham Law’s motion to dismiss when he granted the beneficiaries partial summary

judgment.

¶15. The chancellor executed his order granting partial summary judgment on January 19,

2015, and the chancery clerk entered the order on January 22, 2015. In the summary-

judgment order, the chancellor found the beneficiaries possessed standing to sue Denham

Law in this matter. The chancellor determined that, because the beneficiaries had terminated

Denham Law’s representation, the attorney’s lien contained in the contracts between Denham

5
See M.R.C.P. 12.

8
Law and the four beneficiaries applied to define the calculation of Denham Law’s attorney’s

lien. Based on his findings, the chancellor concluded that, under the terms of the lien

provision in the contracts, Denham Law was entitled to “the value of its services actually

performed at its normal hourly rate and for all its costs, advances, and expenses of whatever

nature in connection with the claim, including but not limited to [the] fees of associates and

paralegals.”

¶16. On February 2, 2015, within ten days of the entry of the chancellor’s judgment,

Denham Law filed an unsuccessful motion to reconsider the chancellor’s judgment or to alter

or amend the chancellor’s judgment pursuant to Rule 59 of the Mississippi Rules of Civil

Procedure. In his final judgment, the chancellor affirmed his prior ruling finding that the

terms of the contracts between Denham Law and the beneficiaries defined the proper

calculation method of Denham Law’s attorney’s lien. The chancellor further acknowledged

that the parties had agreed that Denham Law’s itemized attorney’s fees amounted to

$10,708.64 and that its costs amounted to $14,791.05. As a result, the chancellor granted

Denham Law an attorney’s lien for each of these amounts. Aggrieved by the chancellor’s

ruling, Denham Law appeals.

STANDARD OF REVIEW

¶17. With regard to a motion to reconsider, this Court has previously stated:

The Mississippi Rules of Civil Procedure provide two avenues to move
the trial court to reconsider its judgment. The aggrieved party may (1) file a
motion for a new trial or to alter or amend under Rule 59 or (2) file for a relief
from a final judgment under Rule 60(b). The timing of the motion to

9
 reconsider determines whether it is a Rule 59 or Rule 60(b) motion.

A motion to reconsider filed within ten days of the entry of the
judgment falls under Rule 59 and tolls the thirty-day time period to file a
notice of appeal until the disposition of the motion. Consequently, a notice of
appeal following the denial of a Rule 59 motion to reconsider encompasses
both the denial of reconsideration and the underlying judgment.

Woods v. Victory Mktg. LLC, 111 So. 3d 1234, 1236 (¶¶6-7) (Miss. Ct. App. 2013) (internal

citations omitted).

¶18. In the present case, Denham Law filed its motion to reconsider within ten days of the

entry of the chancellor’s judgment granting the beneficiaries partial summary judgment.

Denham Law’s motion therefore falls under Rule 59(e). As a result, on appeal we address

the merits of the chancellor’s grant of partial summary judgment to the beneficiaries.

¶19. This Court reviews de novo the chancellor’s grant or denial of a motion for summary

judgment. Evans v. Aydha, 189 So. 3d 1225, 1227 (¶2) (Miss. Ct. App. 2016). As our

caselaw establishes:

Summary judgment is appropriate if the pleadings, depositions, answers
to interrogatories and admissions on file, together with the affidavits, show
that there is no genuine issue of any material fact and that the moving party is
entitled to a judgment as a matter of law. The movant bears the initial burden
of persuading the judge that no issue of material fact exists and that, as a
matter of law, he is entitled to summary judgment based on the facts.

Walz v. HWCC-Tunica Inc., 186 So. 3d 375, 376 (¶7) (Miss. Ct. App. 2016) (internal

citations omitted).

¶20. Although we view the evidence for summary judgment in the light most favorable to

the party opposing the motion, the nonmovant “may not rest upon the mere allegations or

10
denials of his pleadings, but his response must set forth specific facts showing that there is

a genuine issue for trial.” Evans, 189 So. 3d at 1227 (¶¶3-4) (citations omitted). In addition:

When a party, opposing summary judgment on a claim or defense as to which
that party will bear the burden of proof at trial, fails to make a showing
sufficient to establish an essential element of the claim or defense, then all
other facts are immaterial, and the moving party is entitled to judgment as a
matter of law.

Id. at (¶4) (quoting Galloway v. Travelers Ins., 515 So. 2d 678, 684 (Miss. 1987)).

DISCUSSION

¶21. We find the second issue raised by Denham Law to be dispositive since the record

reflects a genuine issue of material fact that precludes summary judgment. We therefore

decline to address the remaining assignments of error. After reviewing the present matter

under the applicable de novo standard of review, and after applying controlling caselaw, we

find the record reflects a dispute of genuine issue of material fact as to whether the attorney’s

lien provision of the contingent-fee contracts controlled. As a result, we reverse the

chancellor’s grant of partial summary judgment to the beneficiaries and remand the case for

further proceedings consistent with this opinion. See Walz, 186 So. 3d at 376 (¶7).

¶22. Denham Law’s second assignment of error states that the chancellor erred by

modifying the terms of the contingent-fee contracts between Denham Law and four of the

beneficiaries. Denham Law argues that, despite the existence of a dispute of material facts,

the chancellor enforced the attorney’s lien provision over the other terms of the contracts.

Denham Law further asserts that its contracts with the four beneficiaries clearly contained

11
both an attorney’s lien and the assignment of “an undivided [forty percent] interest in and to

all of [the beneficiaries’] claims and all sums recovered on their behalf.” Denham Law also

contends that the chancellor erred both in his interpretation of the contracts’ terms and by

only enforcing the clause as to the attorney’s lien. According to Denham Law, the chancellor

erred by ignoring the contracts’ clause that assigned the firm the forty percent contingent fee.

In addition, Denham Law asserts that a dispute of material fact exists as to the actual hours

of work Denham Law and its former associates performed on the case and as to the

substantial benefit derived from Denham Law’s work that contributed to the subsequent

settlement.

¶23. According to Denham Law, the contracts’ terms require a termination of the firm by

the beneficiaries to trigger the contracts’ attorney’s lien provision. Denham Law claims,

though, that the record lacks evidence to show that the beneficiaries ever terminated Denham

Law’s legal services. In its argument, Denham Law also asserts that the record contains no

evidence to show the following: (1) an agreement between Denham Law and its former

employees, Carter and Jordan, as to a division of client case files; (2) the severance of any

existing attorney-client relationship between the beneficiaries and Denham Law; (3) an

accounting of the actual hours that former employees spent working on the medical-

malpractice litigation while still employed at Denham Law; or (4) the benefit derived from

Denham Law’s contribution to the settlement. In asserting that the accounting of those hours

of work remains contested, Denham Law argues that a material factual dispute exists as to

12
that issue. Relevant to that issue, we acknowledge the record shows that, on its face, the

contingent-fee provision contained in the contracts allows Denham Law to act as co-counsel

or to associate with other attorneys.6

¶24. As previously provided, the record reflects Denham’s affidavit assertions that his

firm’s advertising, connections, and reputation led to the firm securing the clients in this case

and led to the firm’s initial involvement in the medical-malpractice litigation. Denham

further contended that his firm used its resources and connections to obtain expert opinions,

investigate the case, and conduct the research necessary to file and pursue the litigation. As

stated, the history of this case shows that Simmons first hired Denham Law on October 20,

2010, and that four of her beneficiaries later contracted with Denham Law for the firm to also

represent them in the derivative wrongful-death lawsuit. Denham Law then filed the

wrongful-death lawsuit in circuit court on August, 22, 2012. The lawsuit was removed to

federal court on January 7, 2013. Around September 12, 2013, Denham Law terminated

Carter and Jordan. The record clearly shows that Denham Law represented the beneficiaries

both when the lawsuit was initially filed and when it was later removed to federal court. The

record fails to factually establish, however, when, if ever, the beneficiaries terminated

Denham Law’s representation.

¶25. In Franklin v. Franklin ex rel. Phillips, 858 So. 2d 110, 112 (¶2) (Miss. 2003), the

6
See Miss. R. Prof. Conduct 1.5(a) (stating that an attorney’s fee shall be reasonable);
Miss. R. Prof. Conduct 1.5(e) (providing for the division of a fee between attorneys who are
not part of the same law firm).

13
attorney of one heir filed the first wrongful-death action, and the attorney of another heir

filed the second action. The supreme court found an implied contract between the attorneys

for payment of attorney’s fees from the settlement. Id. at 121 (¶36). The supreme court held

that the attorney who filed the second lawsuit was entitled to compensation under his contract

with his client. Id. at 123 (¶47). The supreme court further found that a third attorney who

was associated as co-counsel and contributed substantial time and effort in bringing about

the settlement should receive compensation. Id.

¶26. In the present case, a determination of the compensation due to Denham Law

necessarily requires us to determine whether Denham Law’s representation was terminated

or whether the representation continued in some capacity. As presented in their declaratory-

judgment complaint, the issue raised by the beneficiaries clearly rests upon the language and

terms of Denham Law’s contingent-fee contracts with the four beneficiaries and upon

whether the facts relevant to those contract conditions or contingencies are undisputed in the

record. In addition to reviewing de novo the chancellor’s grant of partial summary judgment,

this Court reviews de novo questions involving the construction and interpretation of

contracts. Royer Homes of Miss. Inc. v. Chandeleur Homes Inc., 857 So. 2d 748, 751 (¶4)

(Miss. 2003). As Mississippi precedent establishes, “[an] attorney’s right to recover a

contingency fee cannot vest until the contingency, for which he has contracted, has

occurred.” Tyson v. Moore, 613 So. 2d 817, 824 (Miss. 1992) (citation omitted). Our

caselaw also recognizes a law firm’s right to “recover the reasonable value of its services

14
upon termination of its employment under [a] contingent[-]fee contract . . . .” Poole v. Gwin,

Lewis & Punches LLP, 792 So. 2d 987, 990 (¶9) (Miss. 2001) (citations omitted).7

¶27. In applying de novo review to the chancellor’s grant of partial summary judgment, we

also look to precedent involving contract interpretation for guidance. In Royer, the supreme

court established the following three-tiered approach for analyzing issues of contract

construction and interpretation:

First, the “four corners” test is applied, wherein the reviewing court looks to
the language that the parties used in expressing their agreement. We must look
to the “four corners” of the contract whenever possible to determine how to
interpret it. When construing a contract, we will read the contract as a whole,
so as to give effect to all of its clauses. Our concern is not nearly so much with
what the parties may have intended, but with what they said, since the words
employed are by far the best resource for ascertaining the intent and assigning
meaning with fairness and accuracy. Thus, the courts are not at liberty to infer
intent contrary to that emanating from the text at issue. On the other hand, if
the contract is unclear or ambiguous, the court should attempt to harmonize the
provisions in accord with the parties’ apparent intent. Only if the contract is
unclear or ambiguous can a court go beyond the text to determine the parties’
true intent. The mere fact that the parties disagree about the meaning of a
contract does not make the contract ambiguous as a matter of law.

Secondly, if the court is unable to translate a clear understanding of the
parties’ intent, the court should apply the discretionary “canons” of contract
construction. Where the language of an otherwise enforceable contract is
subject to more than one fair reading, the reading applied will be the one most
favorable to the non-drafting party. Finally, if the contract continues to evade
clarity as to the parties’ intent, the court should consider extrinsic or parol
evidence. It is only when the review of a contract reaches this point that prior
negotiation, agreements[,] and conversations might be considered in

7
Cf. Estate of Stevens v. Wetzel, 762 So. 2d 293, 295 (¶11) (Miss. 2000) (discussing
whether, in a lawsuit for the recovery of attorney’s fees, the complaint provided notice of
a cause of action for conversion).

15
 determining the parties’ intentions in the construction of the contract. Of
course, the so-called three-tiered process is not recognized as a rigid
“step-by-step” process. Indeed, overlapping of steps is not inconceivable.

Royer, 857 So. 2d at 752-53 (¶¶10-11) (internal citations and quotation marks omitted).

¶28. Jurisprudence provides further guidance for interpreting contracts that involve

conditions or contingencies. Jurisprudence reflects that parol or extrinsic evidence is

admissible to show the existence of a condition. Butler v. Smith, 35 Miss. 457, 463-64

(1858); see also Estate of Parker v. Dorchak, 673 So. 2d 1379, 1381-82 (Miss. 1996)

(discussing the admissibility of parol evidence). In Dibidale of Louisiana Inc. v. American

Bank & Trust Co., 916 F.2d 300, 307-08 (5th Cir. 1990), the Fifth Circuit found parol

evidence was admissible to show the existence of a condition in a bank loan. Instructive to

our review, the Dibidale court further found that a dispute of material fact as to the condition

precluded summary judgment on that issue. Id.

¶29. Also helpful to our analysis in this case involving a condition or contingency, our

caselaw defines a condition precedent “as a ‘condition which must be performed before the

agreement of the parties shall become a binding contract or a condition which must be

fulfilled before the duty to perform an existing contract arises.’” Austin v. Carpenter, 3 So.

3d 147, 149-50 (¶12) (Miss. Ct. App. 2009) (quoting Turnbough v. Steere Broad. Corp., 681

So. 2d 1325, 1327 (Miss. 1996)). In Turnbough, the supreme court found that, if a fact or

an event is a condition precedent to a duty to perform, its absence or nonoccurrence

16
constitutes a defense and can reflect a dispute of fact. Turnbough, 681 So. 2d at 1327.8

While the case before us on appeal involves no condition precedent, it does involve a

determination of whether the condition or contingency of termination occurred or whether

Denham Law’s representation continued and, if so, in what capacity.

¶30. The beneficiaries assert that the contracts’ attorney’s lien provision controls due to the

occurrence of Denham Law’s termination. To determine whether Denham Law was

terminated requires parol or extrinsic evidence. In pertinent part, each of Denham Law’s

contracts with the four beneficiaries stated the following:

I do hereby assign, convey, transfer, and deliver unto said [a]ttorneys
as their fees . . . an undivided [f]orty [p]ercent (40%) interest in and to all of
my above[-]mentioned claim and all sums which may be recovered on my
behalf. It is my said attorney’s sole discretion as to when suit shall be filed.
This contract does not bind either party with regard to appeal, and in fact[,] the
attorneys specifically have no responsibility to file any postjudgment
pleadings. It is understood and agreed that[,] in addition to [a]ttorney[’s] fees,
all costs and expenses of this litigation will be reimbursed to my [a]ttorneys by
me on my claim at the time of settlement. It is further understood and agreed
that my [a]ttorneys may act as co-counsel or associate with any other attorney
at no extra cost to me at my [a]ttorneys’ sole discretion.

I do hereby grant to Denham Law . . . an attorney’s lien for the value of
its services actually performed at its normal hourly rate and for all its costs,
advances, and expenses of whatever nature in connection with my claim,
including but not limited to [the] fees of associates and paralegals. Any
proceeds that I receive from my litigation will be delivered in a check or draft
payable to the firm of Denham Law . . . and to me, jointly, to secure payment
of the firm’s attorney’s lien. This paragraph shall survive any termination of
this contract for any reason.

8
Cf. Estate of Parker, 673 So. 2d at 1381-82 (finding that the language of a
promissory note was ambiguous and, thus, parol evidence was admissible).

17
(Emphasis added).

¶31. As discussed, in granting the beneficiaries partial summary judgment, the chancellor

stated that the beneficiaries terminated Denham Law in 2013 and subsequently hired Carter

and Jordan. However, the record reflects no evidence to show either that the beneficiaries

terminated Denham Law’s representation or when such termination occurred. The record

also reflects no admission by Denham Law as to any termination by the beneficiaries.

Moreover, the record contains no evidence to show any agreement between Denham Law and

its former employees, Carter and Jordan, as to a division of the client files removed from

Denham Law following Carter and Jordan’s termination. The record also reflects no

evidence of any agreement as to severance of the attorney-client relationships.9 In addition,

the beneficiaries presented no evidence by testimony, affidavits, or otherwise to contradict

Denham’s affidavit opposing summary judgment or to provide evidence of the termination

of Denham Law’s representation.

¶32. During oral argument, Carter and Jordan asserted that the allegations in the

beneficiaries’ complaint sufficed to establish the beneficiaries’ termination of Denham Law’s

representation. However, the allegations in the beneficiaries’ complaint constituted bare

assertions and nothing more. Denham Law filed a pre-answer motion to dismiss under Rule

9
See Ownby v. Prisock, 243 Miss. 203, 207-08, 138 So. 2d 279, 280 (1962) (“[I]f the
contract is shown to have been obtained by fraud, mistake, or undue influence, if it is so
excessive in proportion to the services to be rendered as to be in fact oppressive or
extortionate, if the attor[ne]y suppresses the facts of the case, or if he uses any unfairness in
securing it, the contract will be held invalid.” (citation omitted)).

18
12(b)(6), and the chancellor did not dispose of Denham Law’s motion to dismiss for lack of

standing until he granted partial summary judgment.10

¶33. As acknowledged, we review de novo a grant or denial of summary judgment, and we

view the evidence in the light most favorable to the nonmovant. Evans, 189 So. 3d at 1227

(¶¶2-3). Summary judgment is appropriate where “the pleadings, depositions, answers to

interrogatories and admissions on file, together with the affidavits, if any, show that there is

no genuine issue as to any material fact . . . .” M.R.C.P. 56(c).

¶34. The plain language of the contingent-fee contracts between Denham Law and the four

beneficiaries provides Denham Law with a forty percent interest to and in all claims and

sums recovered on the beneficiaries’ behalf. The contingent-fee contracts further state that

Denham Law may act as co-counsel or associate with any other attorney at Denham Law’s

discretion.11 The contracts then provide Denham Law with an attorney’s lien that survives

termination and calls for the value of the firm’s services actually performed at its normal

hourly rate and for all its costs and expenses, including the fees of associates and paralegals.

The interpretation of the contracts and the chancellor’s application of the contracts’

10
See M.R.C.P. 12(a)(1) (expressly providing that the filing of a permitted Rule 12(b)
motion alters and extends the time period for filing a responsive pleading). See generally
Jeffrey Jackson, Donald E. Campbell & Justin L. Matheny, Mississippi Practice Series:
Mississippi Civil Procedure § 16:12 (2016) (discussing the effect of a summary-judgment
motion on the time allowed for filing an answer).
11
See Franklin, 858 So. 2d at 122 (¶42) (“The wrongful death statute does not by its
express terms limit the case to one lawyer or otherwise limit each heir’s choice of her own
counsel.”).

19
attorney’s lien provision require evidence of the termination of Denham Law’s

representation.

¶35. The lack of evidence in the record to show the beneficiaries’ termination of Denham

Law’s representation results in a genuine issue of disputed material fact as to the applicability

of the attorney’s lien provision in the contracts.12 Consequently, the record also reflects a

dispute of material fact in this case as to the compensation due to and the actual services

performed by Denham Law and as to the calculation of Denham Law’s fees and expenses.

As a result, we reverse the chancellor’s grant of partial summary judgment to the

beneficiaries and remand the case for further proceedings consistent with this opinion.

¶36. THE JUDGMENT OF THE JACKSON COUNTY CHANCERY COURT IS
REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS
CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE
ASSESSED TO THE APPELLEES.

LEE, C.J., IRVING, P.J., AND GREENLEE, J., CONCUR. BARNES AND
FAIR, JJ., CONCUR IN PART AND IN THE RESULT WITHOUT SEPARATE
WRITTEN OPINION. WILSON, J., CONCURS IN RESULT ONLY WITHOUT
SEPARATE WRITTEN OPINION. GRIFFIS, P.J., SPECIALLY CONCURS WITH
SEPARATE WRITTEN OPINION, JOINED IN PART BY FAIR, J. ISHEE AND
WESTBROOKS, JJ., NOT PARTICIPATING.

GRIFFIS, P.J., SPECIALLY CONCURRING:

¶37. I agree with the majority that the chancellor’s final judgment that granted summary

12
See UHS-Qualicare Inc. v. Gulf Coast Cmty. Hosp. Inc., 525 So. 2d 746, 753
(Miss. 1987) (finding that, when a party to a contract commences a civil action for a
declaratory judgment, the court is not limited to either accepting the plaintiff’s verison of
the contract or dismissing the action; instead, the court should apply controlling principles
of law to the facts and declare the parties’ rights, status, or other legal relations).

20
judgment should be reversed and remanded. However, I do not agree with the majority’s

reasoning. The majority addresses a number of legal concepts that I do not believe are

necessary.

¶38. In Karpinsky v. American National Insurance, 109 So. 3d 84, 88-89 (¶¶ 9-11) (Miss.

2013), the Mississippi Supreme Court addressed the appropriate standard of review and the

summary judgment standard:

I. Standard of Review

We review the grant or denial of a motion for summary judgment de novo,
viewing the evidence in the light most favorable to the party against whom the
motion has been made.

II. The Summary-Judgment Standard

Summary judgment is appropriate and shall be rendered if the pleadings,
depositions, answers to interrogatories and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as to any material fact
and that the moving party is entitled to judgment as a matter of law.
Importantly, the party opposing summary judgment may not rest upon the mere
allegations or denials of his pleadings, but his response, by affidavit or as
otherwise provided in this rule, must set forth specific facts showing that there
is a genuine issue for trial. If he does not so respond, summary judgment, if
appropriate, will be entered against him.

This Court has explained that in a summary judgment hearing, the burden of
producing evidence in support of, or in opposition to, the motion is a function
of Mississippi rules regarding the burden of proof at trial on the issues in
question. The movant bears the burden of persuading the trial judge that: (1)
no genuine issue of material fact exists, and (2) on the basis of the facts
established, he is entitled to judgment as a matter of law. The movant bears
the burden of production if, at trial, he would bear the burden of proof on the
issue raised. In other words, the movant only bears the burden of production
where [he] would bear the burden of proof at trial. Furthermore, summary
judgment is appropriate when the non-moving party has failed to make a

21
 showing sufficient to establish the existence of an element essential to the
party’s case, and on which that party will bear the burden of proof at trial.

(Citations and quotation marks omitted).

¶39. In my de novo review, I have considered the motion for summary judgment filed by

the Appellees, who were the plaintiffs and are the wrongful-death beneficiaries and heirs-at-

law of Kimberly Simmons. The motion for summary judgment does not include any

affidavits. Attached to the motion were a couple of letters and Denham Law’s response to

requests for admissions. I also have considered the brief filed by the Appellees, where they

included the following statement of facts:

Kimberly Ann Simmons died from lung cancer on April 21, 2011. [Compl.,
R. at 1.] Surviving Ms. Simmons were her six adult children, David Nelson,
Savannah Simmons, Misty Loper, Rachel Benefield, Shannon Simmons and
Shane Nelson. [Id. at 6.] Shane Nelson later passed away as well, and was
survived by his daughter, Teressa Nicole Nelson, a minor. Guardianship of
Teressa was assumed by her maternal grandmother, Sheryl Ann Phillips. In
early 2012, four of the children (Savannah Simmons, David Nelson, Misty
Loper and Shannon Simmons) entered into contracts with DLF to represent
them in a medical malpractice/wrongful death action arising from an alleged
failure to diagnose cancer leading to their mother’s death. [Compl. Exs., R. at
8-12.] DLF never entered into contracts with Teressa Nicole Nelson or Rachel
Benefield. [Denham’s Resp. to Req. for Admis., R. at 35.] DLF’s contracts
with the four heirs it represented included a clause which stated as follows:

I do hereby grant to DENHAM LAW FIRM, PLLC an
attorney’s lien for the value of its services actually performed at
its normal hourly rate and for all its costs, advances, and
expenses of whatever nature in connection with my claim,
including but not limited to fees of associates and paralegals.
Any proceeds that I receive from my litigation will be delivered
in a check or draft payable to the firm of DENHAM LAW
FIRM, PLLC and to me, jointly, to secure payment of the firm’s
attorney’s lien. This paragraph shall survive the termination of

22
 this contract for any reason.

[Compl. Exs., R. at 8-12] (emphasis added). The three heirs with whom DLF
had contracts were represented exclusively by Kristopher W. Carter, a partner
at DLF, during their time at that firm. [Id.; Notice of Attorney Lien attached
to Denham’s Resp. to Req. for Admis.] On September 12, 2013, Kristopher
W. Carter and Albert R. Jordan, IV were “dismissed” from DLF by Earl L.
Denham because they would not agree to buy his law firm at his terms, and
were ejected from the building by Denham on the spot. [Denham Law’s Resp.
to Mot. for Summ. J., R. at 45.] Kristopher W. Carter and Albert R. Jordan,
IV, formed the law firm of Carter & Jordan, PLLC, shortly thereafter.
[Compl., R. at 3.] Upon learning of Carter and Jordan’s departure, the
heirs/beneficiaries with whom DLF had contracts terminated DLF’s services.
[Id.] DLF immediately filed Notices of Attorney Lien for the work performed
at DLF on the case prior to Carter’s and Jordan’s departure. [Exs. H and I to
Denham Law’s Resp. to Mot. for Summ. J., R. at 76-80.] Over the next few
months, all of the heirs/wrongful death beneficiaries (Savannah Simmons,
David Nelson, Misty Loper, Rachel Benefield, Teressa Nicole Nelson and
Shannon Simmons) contracted with Carter & Jordan, PLLC, to represent them
in the wrongful death/medical malpractice suit. [Compl., R. at 3.] After
extensive litigation in federal court, C&J reached a tentative settlement of the
lawsuit on behalf of the Heirs. [Id.] C&J requested DLF’s lien amount to
finalize the settlement, but DLF refused to state the amount of its lien (even
when requested to do so by the federal magistrate judge). [Pl.’s Mot. for
Summ. J., R. at 29.] Accordingly, the Heirs had no choice but to file a
Complaint for Declaratory Judgment in the Chancery Court of Jackson County,
Mississippi, on July 23, 2014, asking that the court enforce the terms of DLF’s
contract defining its attorney lien. [Compl., R. at 1.] The Heirs additionally
served Requests for Admission on DLF, to which DLF later responded. [R.
at 35-38.] Inter alia, DLF explicitly admitted the following: (1) that its
contracts with the former clients all contained the referenced termination
clause; (2) that the contracts contain a provision defining the amount of its lien
in the event of termination of employment of DLF; (3) that DLF was bound by
these contracts; and (4) that it refused to agree to a lien calculation in
accordance with its own contract. [R. at 35-38.] The Heirs filed a Motion for
Summary Judgment regarding the lien calculation and the enforceability of the
contract clause, which, after holding a hearing, the Court granted on January
22, 2015. [R. at 28, 94.] Indeed, when Earl L. Denham was directly asked by
the chancellor during the hearing, “the real issue is the client contract, is it
not?”; he replied “Yes, sir.” [Tr. at 8.] The Court explained its rejection of

23
 DLF’s argument during the hearing, stating, “I know this. I know that these
people have a contract with your law firm, and they filed a dec action which
is a classic dec action litigation to say what are our rights under that contract.”
[Tr. at 16.] DLF further expressly waived its request for sanctions and any
counterclaims, cross-claims and third party claims it might have. [Tr. at 46.]
DLF filed motions to dismiss and to disqualify counsel, claiming that the Heirs
did not have standing to bring suit, and that Carter and Jordan should be
disqualified as counsel because they were “material witnesses,” but the Special
Chancellor denied those motions. The Special Chancellor ruled, in his Order
on the Motion for Summary Judgment, that the Heirs did have standing to
bring suit, and that DLF’s lien was defined by the terms of its own contract.
[R. at 94-95.] After the parties stipulated as to the dollar amount of DLF’s
time and expenses on the case, the trial court entered its Final Order and
Judgment on March 20, 2015, stating the amount certain of DLF’s lien. [R. at
114.]

(Footnote omitted).

¶40. I have also considered the affidavit Denham Law filed in response to the motion for

summary judgment. In that affidavit, Denham Law offered evidence of his firm’s contract

and questioned whether Carter and Jordan had a separate contract. This indicated that there

is a genuine issue of a material fact as to whether Carter and Jordan’s contractual agreement

was based on the Denham Law contract, or whether there was a new contract that terminated

the Denham Law contract. The significance of this issue is that this genuine issue of a

material fact may decide under which of the two paragraphs in the contract Denham Law was

entitled to be compensated.

¶41. Accordingly, I find that the Appellees have failed to satisfy their burden of proving

that no genuine issue of material fact exits and they are entitled to a judgment as a matter of

law. For this reason, I would reverse and remand for further proceedings.

24
¶42. In addition, I believe this case points to an inconsistency in the Mississippi Rules of

Court that should be addressed.

¶43. If a motion for summary judgment is filed in circuit or county court, Rule 4.03 of the

Uniform Rules of Circuit and County Court provides in relevant part:

The provisions of this rule shall apply to all written motions in civil actions.

1. The original of each motion, and all affidavits and other supporting
evidentiary documents shall be filed with the clerk in the county where
the action is docketed. The moving party at the same time shall mail a
copy thereof to the judge presiding in the action at the judge’s mailing
address. A proposed order shall accompany the court’s copy of any
motion which may be heard ex parte or is to be granted by consent.
Responses and supporting evidentiary documents shall be filed in the
same manner.

2. In circuit court a memorandum of authorities in support of any
motion to dismiss or for summary judgment shall be mailed to the
judge presiding over the action at the time that the motion is filed.
Respondent shall reply within ten (10) days after service of movant’s
memorandum. A rebuttal memorandum may be submitted within
five (5) days of service of the reply memorandum. Movants for
summary judgment shall file with the clerk as a part of the motion an
itemization of the facts relied upon and not genuinely disputed and
the respondent shall indicate either agreement or specific reasons for
disagreement that such facts are undisputed and material. Copies of
motions to dismiss or for summary judgment sent to the judge shall also
be accompanied by copies of the complaint and, if filed, the answer.

3. Accompanying memoranda or briefs in support of other motions are
encouraged but not required. Where movant has served a memorandum
or brief, respondent may serve a reply within ten (10) days after service
of movant’s memorandum or brief. A rebuttal memorandum or brief
may be served within five (5) days of service of the reply
memorandum.

(Emphasis added).

25
¶44. The Uniform Chancery Court Rules do not have a similar procedure. There is no

reason that the procedures in circuit, chancery, and county courts are not the same with

respect to motions for summary judgment. Here, it would have been helpful to the

determination of the motion for the chancellor and this Court to have the benefit of the

movants’ “itemization of the facts relied upon and not genuinely disputed” and to have

Denham Law “indicate either agreement or specific reasons for disagreement that such facts

are undisputed and material.” I call upon the supreme court to amend the Uniform Chancery

Court Rules to include a provision similar to Rule 4.03 of the Uniform Rules of Circuit and

County Court.

FAIR, J., JOINS THIS OPINION IN PART.

26