Pannell v. GuessPannell v. Guess
Dаvid PANNELL, as Administrator of the Estate of Shelly Pannell, Deceased; David Pannell and Betty Pannell, individually, as Wrongful Death Beneficiaries of Shelly Pannell
v.
Beverly GUESS, Lisa Thompson, Lana Pannell and Mark Pannell.
Supreme Court of Mississippi.
*1311 John Leroy Long, Saltillo, for Appellant.
Thomas E. Childs, Jr., Fulton, for Appellee.
En Banc.
DAN M. LEE, Chief Justice, for the Court:
This appeal arises from a September 17, 1991, ruling of the Lee County Chancery Court in which the chanсellor held that
*1312 1. WHETHER OR NOT THE CHANCERY COURT OF LEE COUNTY, MISSISSIPPI, ERRED IN ITS INTERPRETATION OF SECTION 11-7-13, MISSISSIPPI CODE ANNOTATED, AS AMENDED.
2. WHETHER OR NOT THE CHANCERY COURT OF LEE COUNTY, MISSISSIPPI, ERRED IN FAILING TO APPROVE THE CONTINGENT FEE CONTRACT OF THE ATTORNEY FOR THE ESTATE OF SHELLY PANNELL.
I.
FACTS
On or about March 17, 1990, Shelly Pannell, an unmarried minor, was killed in an automobile accident when the car in which she was a passenger, driven by Raymond Griffin, Jr., collided with another vehicle. Shelly was survived by her mother (Betty), father (David) and four half-siblings from her father's previous marriage (hereinafter Shelly's half-siblings).
After Shelly's death, David Pannell retained John Long to pursue a wrongful death action against Griffin. David Pannell petitioned the Lee County Chancery Court to apрoint him administrator of his deceased daughter's estate, and this petition was granted. Afterward David Pannell, through his attorney, John Long, initiated negotiations with Griffin's insurance company seeking damages for Shelly's wrongful death. Within two weeks of being retained by David Pannell to begin settlement negotiations, Long was able to negotiate a $150,000 settlement offer from Griffin's insurer.
On February 1, 1991, the chancellor authorized the chancery clerk to receive $150,000 from Griffin's insurance company into the registry of the court pending settlement of a doubtful and disputed claim. The $150,000 was held in the registry of the court pending a determination of Shelly Pannell's wrongful death beneficiaries.
A hearing was held on April 8, 1991, to determine Shelly's wrongful death beneficiaries. The lower court, pursuant to
After the April 8, 1991, developments, Shelly's half-siblings petitioned the chancery court to order an equitable distribution of the settlement proceeds among Shelly's parеnts and themselves. In turn, attorney John Long sought the chancery court's enforcement of the contingency fee contract he had entered into with David Pannell. Long argued that the contingency fee agreement of January 22, 1991, was binding on all of Shelly's wrongful death beneficiaries.
A hearing on thеse matters was held July 19, 1991. At the hearing Shelly's half-siblings claimed
*1313 On September 26, 1991, David Pannell, as administrator of Shelly's estate, filed a motion for the court to reconsider its September 17, 1991, decree. At the November 6, 1991, hearing on that motion, the chancellor listened to argument from both sides and then ruled, once again, that the statute mandated that each wrongful death beneficiary receive an equal share of the insurance settlement. The lower court held that there was no authority in the statute to allow the chancellor to hold an evidentiary hearing to determine how the proceeds of the settlement should be disbursed. Likewise, the lower court held that the contingent fee contract between David Pannell and Long was not binding upon the rest of the beneficiaries since they had not consented to or signed said contract.
DISCUSSION
II.
1. WHETHER OR NOT THE CHANCERY COURT OF LEE COUNTY, MISSISSIPPI, ERRED IN ITS INTERPRETATION OF SECTION 11-7-13, MISSISSIPPI CODE ANNOTATED, AS AMENDED.
STANDARD OF REVIEW
Upon appellate review, this Court will not reverse the chancellor's decision unless manifestly wrong, clearly erroneous, or an erroneous legal standard was applied. Hill v. Southeastern Floor Covering Co.,
WRONGFUL DEATH
Mississippi's wrongful death statute,
The case sub judice initially started out as a wrongful death action. Shelly Pannell was killed when the car she was a passenger in was involved in an accident. However, because a settlement agreement with the driver's insurer was approved by all of Shelly's beneficiaries, no wrongful death suit was actually filed by any of them.
All of Shelly's beneficiaries agreed that they would settle all claims against Griffin for $150,000.00. The lower court approved this settlement, and neither Shelly's pаrents nor her half-siblings ever had to prove damages for loss of companionship or pain and suffering. See Jones v. Shaffer,
In the case sub judice, the issue below was how to disburse the insurance settlement funds among Shelly's six wrongful death beneficiaries. David and Betty Pannell first argued that the half-siblings were not entitled to any of the wrongful death prоceeds. As a fall-back position, they argued that Shelly's half-siblings were not entitled to share equally in the proceeds.
Notwithstanding these arguments, the chancellor looked to the wrongful death statute to determine how the funds were to be disbursed. The statute provides in relevant part:
... .
In an аction brought pursuant to the provisions of this section by the widow, husband, child, father, mother, sister or brother of the deceased, or by all interested parties, such party or parties may recover as damages property damages and funeral, medical or other related exрenses incurred by or for the deceased as a result *1314 of such wrongful or negligent act or omission or breach of warranty, whether an estate has been opened or not. Any amount, but only such an amount, as may be recovered for property damage, funeral, medical or other related expenses shall be subject only to the payment of the debts or liabilities of the deceased for property damages, funeral, medical or other related expenses. All other damages recovered under the provisions of this section shall not be subject to the payment of the debts or liabilities of the deceased, except as hereinafter provided, and such damages shall be distributed as follows:
... if the deceased has no husband, nor wife, nor children, the damages shall be distributed equally to the father, mother, brothers and sisters, or such of them as the deceased may have living at his or her death... . There shall not be, in any case, a distinction between the kindred of the whole and half blood of equal degree.
The lower court interpreted the language of the wrongful death statute and ordered that $1,078.00 of the wrongful death settlement be set aside for payment of medical expenses and other expenses related to Shelly's death. Then the lower court, pursuant to
Contrary to Appellants' argument, the wrongful death statute does not provide that the lower court may conduct a hearing to determine how to divide the proceeds. In fact, the statute provides that the funds "shall be equally distributed" (emphasis added). A basic tenet of statutory construction is that "shall" is mandatory and "may" is discretionary. Planters Bank & Trust Co. v. Sklar,
In the case at bar, Shelly was not survived by a husband or children. Therefore, under
David and Betty Pannell do not cite any Mississippi case law or statutory law that would allow or requirе the lower court to conduct a hearing at which the wrongful death beneficiaries would be required to "justify" their damages. Moreover, this Court could find no such authority under our statutory or case law. Therefore, we find that the lower court correctly applied
III.
2. WHETHER OR NOT THE CHANCERY COURT OF LEE COUNTY, MISSISSIPPI, ERRED IN FAILING TO APPROVE THE CONTINGENT FEE CONTRACT OF THE ATTORNEY FOR THE ESTATE OF SHELLY PANNELL.
On January 22, 1991, David Pannell entеred into a contingency fee contract with Long. Quite simply, this contract provided that Long would be paid one-third of any recovery he received on behalf of David Pannell against Raymond Griffin and Griffin Motors. The contingency fee contract in dispute was signed by David Pannell and by Long. Nonе of the other parties to this litigation signed this contract. The contract does not indicate that David Pannell signed in his representative capacity as the administrator of the estate of Shelly Pannell.
The court below held that the contingency fee agreement bound David Pannell alone and refused to allow Long to collect any monies from Shelly's half-siblings. The record indicates that Shelly's mother and half-siblings *1315 approved the $150,000 wrongful death settlement negotiated by Long with Griffin's insurance company. However, the record does not indicate that Shelly's half-siblings had knowledgе of the contingency fee agreement, much less approved of the agreement. Nonetheless, Shelly's half-siblings approved of the amount of the settlement negotiated by Long and gained a financial benefit from his labor. Therefore, we hold that the chancellor should have allowed Long to prove that he was entitled to some compensation from Shelly's mother and half-siblings for his work in negotiating the settlement from which they derived financial benefit.
Clearly, Pannell did not sign the contract as administrator of the estate of Shelly Pannell, nor did any of the other beneficiaries sign the contingent fee agreement. There simply is no indication that David Pannell signed the agreement in his representative capacity and was acting for the benefit of the others in a legal or representative capacity. Hill v. James,
On remand, the reasonableness of the contingency fee should be examined in light of the facts of this case. In the event the fee is found to be unreasonable, the chancellor may consider restructuring the percentage of recovery to which Long is entitled under these circumstances. However, the chancellor may consider all factors normally utilized to determine a reasonable fee, and if he should find that the contingency fee was not reasonable under the facts of this case, then he may assess a fee based on quantum meruit. Duggins v. Guardianship of Washington,
CONCLUSION
David and Betty Pannell's argument that the chancellor erred in refusing to hold a hearing at which they could prove that they were each entitled to more than the one-sixth share of the insurance proceeds is not supported by
AFFIRMED IN PART; REVERSED AND REMANDED IN PART.
PRATHER and SULLIVAN, P.JJ., PITTMAN, BANKS, McRAE and SMITH, JJ., concur.
JAMES L. ROBERTS, Jr. and MILLS, JJ., not participating.