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 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 APPELLEES

DATE OF JUDGMENT: 03/19/2015 TRIAL JUDGE: HON. HOLLIS MCGEHEE COURT FROM W HICH 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 wrongf

u l-death benef

iciaries a nd heirs-at-law of Kim berly Sim m ons settled

a wrongf ul-death lawsuit and then f iled the insta n t a c tion to determ ine the f ees and costsowed to D e n h am Law Firm PLLC under contingent-f ee contracts signed by f

our of the
benef iciaries. 1 I n t heir declaratory -judgm ent com plaint f iled in Jackson County C hancery Court, th e b e n e f

i c i a ries sought a determ ination of the r ights and m oney owed under the contingent-f

ee contracts. The b enef i ciaries c l a i me d that the contracts’ attorney ’s lien provision f

or the value o f services actually perf orm ed at Denham L aw’s norm al hourly rates
and f or all the f

irm ’s costs applied rather than the contracts’ contingency -f ee provision. ¶2. The b e n e f

iciaries subsequently f

iled a m otion f

or p artial s um m a r

y judgm ent. They argued that no genuine issue of m aterial f act existed as to the applicability of the contracts’
attorney ’s lien provision. They also asserted that n o g enuine issue o f m a terial f act existed
as to the calculation of

the attorney ’s lien as def ined by the term s of t he contracts. ¶3. In granting partial s um m ary judgm ent t o the benef i ciaries, the chancellor f

ound that
f our of the six benef

icia r i e s e n tered into contingent-f ee contracts with Denham Law. The
chancellor f

urther f ound that the benef

i ciaries then term inated the f irm ’ s representation. The
chancellor also determ ined th at the benef iciaries’ term ination of D enham Law’s representation triggered the attorney ’s lien provision in the contracts. In i nterpreting the
contracts’ term s, t he chancellor applied the attorney ’s lien provision that provided
reim bursem ent f

or a ctual services perf

orm ed at norm a l hourly rates and f or actual costs. The
chancellor then concluded that Denham Law’s attorney ’s f ees am o unted to $10,708.64 and

1 S ee M i ss. C o d e A n n
. § 1 1

- 7 -1 3 (R ev
. 2 0 0 4 ) (estab lish in g a cau se o f actio n in M ississip p i f

o r w ro n g f u l-d eath b e n ef

iciaries).
2that its costs am ounted to $14,791.05. T he chancellor denied Denham Law’s m otion to

reconsider or to alter o r am e n d t h e grant of partial sum m ary judgm ent, and Denham Law appeals to this Court. ¶4. On appeal, Denham Law raises the f ollowing issues: (1) whether the chancellor e rred by f inding that the benef

iciaries had standing to sue Denham L aw; ( 2) whether the chancellor
erred b y modif

y ing the contract term s between Denham Law a n d the benef i ciaries; (3)
whether the chancellor e r r e d b y not f inding that the benef

iciaries’ attorney s breached a
f iduciary d uty t o Denham L aw; and (4) whether the chancellor e rred by not d isqualif y ing the
benef iciaries’ attorney s f

rom representing the benef

iciaries in this case. ¶5. U p o n r e v iew of the chancellor’s grant o f partial sum m a ry judgm e nt , w e f i n d n o
evidence in the record to support t h e c hancellor’s determ ination that the benef iciaries

term inated Denham Law. Due to t h e l ack of such evidence, we f ind the record ref

lects a disp u t e o f ma t e rial f

a ct as to whether the contracts’ attorney ’s lien provision applied. 2 As

a result, we reverse the chancellor’s judgm ent a nd rem and the c ase f o r f urther proceedings consistent with this opinion. 3

2 S ee a lso F ra n klin v. F

ra n klin ex rel. P h illip s , 8 5 8 S o
. 2 d 1 1 0 , 1 1 7 (¶2 2 ) (M iss. 2 0 0 3 ) (“[ A ] n atto rn ey w h o se ef f o rts co n trib u te to o b tain in g a settlem en t o r i n en h an cin g a settlem en t is en titled to atto rn ey [ ’s] f ees.”); P a n n ell v. G u ess , 6 7 1 S o
. 2 d 1 3 1 0 , 1 3 1 5 (M iss. 1 9 9 6 ) (h o ld in g th a t t h e ch an cello r sh o u l d h av e allo w ed t h e a tto rn ey o f o n e o f th e b en ef iciaries t o p r o v e h e w as en t itled to so m e c o m p en satio n f

r om t he o th er f iv e b en ef iciaries f o r h is w o rk in n eg o tiatin g th e settlem en t f ro m w h ich all t h e b en ef

iciaries d eriv ed f

in an cial b en ef it).

3 A f ter d u e co n sid eratio n o f th e reco rd , b rief s, o r al arg u m en ts, a n d ap p licab le law , th e m a j o r ity o p in io n h erein resp ectf u lly ad d resses t h e leg al issu es n ecessarily in v o lv ed to
3FACTS

¶6. On October 20, 2010, S im m ons hired De n h a m L aw to represent her in a m edicalm alpractice lawsuit. Earl Denham , Denham L aw’s president a nd partner, stated in his
af f idavit that Sim m ons chose h i s f i r m due t o Denham Law’s a d vertising and reputation.
Af ter Sim m ons died o n April 21, 2011, f our of her six b enef

iciaries entered into contingentf ee contracts with Denham Law to represent them in the derivative wrongf ul-death lawsuit.
Each of the f our contracts contained the f ollowing language:

I d o hereby a ssign, convey , transf e r, and d eliver u nto s a i d [ a]ttorney s as their f ees
. . . an undivided [ f

]orty [ p]ercent (40%) interest in and to all of
m y above[

- ]m entioned claim and all sum s which ma y b e recovered on m y behalf

. It is m y said attorney ’s sole discretion a s t o w h e n s uit shall be f iled. This contract does not b ind either party w ith regard to appeal, and in f act[ ,] the attorney s specif

ically have no responsibili ty to f ile any postjudgm ent pleadings. It is u nderstood and agreed that[ ,] in addition to [ a]ttorney [ ’s] f ees, all costs and expenses of this litigation will be reim bursed t o m y [ a]ttorney s by
m e on m y claim at the tim e of settlem ent. It is f urther 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 d o hereby g rant to Denham Law

. . . an attorney’s lien f or the value of i ts services actually perf orm ed at its norm a l hourly rate and f or all its costs, advan c e s , and expenses of whatever nature in connection with m y claim , including b ut not lim ited to [ the] f ees o f associates and p a r a legals. Any proceeds that I receive f

rom m y litigation will b e delivered in a check or draf t pay able to the f

irm of Denham Law

. . . and to m e, jointly , to s ecure pay m ent of t he f irm ’s attorney ’s lien. This p aragraph s hall survive any termination of this contract for any reason.

reso lv e th is ap p eal. T h e sp ecial co n cu rren ce ag rees th a t th e ch an cello r’s g ran t o f su m m ary j u d g m en t sh o u ld b e rev ersed an d rem an d ed

. H o w ev er, th e sep a rate o p in io n ’s d iscu ssio n ad v o catin g a ru le c h an g e to th e U n if o rm C h an cery C o u r

t R u les is e x t ran eo u s to th e reso lu tio n o f th e in stan t a

p p eal. T h is C o u rt lack s th e au t h o rity to im p o se su ch a r

u le ch an g e. 4(Em

phasis added). ¶7. According to D enham ’s af f idavit opposin g s u m m ary j udgm ent, his f irm utilized its

own resources to o b tain the expert opinions and t he research needed to prepare t he lawsuit.
Denham also s tated that it w as his f irm ’s advertising and reputation that i nitially secured this
case. The record ref

lects no dispute as to Denham ’s s tatem ent in h is af f idavit that his f

irm
f iled the lawsuit in Harrison County Circuit Court o n A ugust 22, 2012. The lawsuit was later

rem oved to f

ederal court on January 7 , 2 013. Following their term ination around Septem ber 12, 2013, Kristopher Carter and Alb e r t J o r dan l ef t Denham Law and began t heir own law
f irm

. Thus, the parties agree that, at the tim e Denham Law f iled t he lawsu i t o n t he
benef iciaries’ behalf

, Carter and Jordan both worked a s a ttorney s f or Denham Law. T h e parties also agree that Carter, as an em ploy ee o f Denham Law, worked on b oth the m edicalm alpractice lawsuit and the subsequent wrongf u l-death case. ¶8. Af ter term inating Carter and Jordan, Denham traveled to Ohio f

or heart surgery
. In
his af f idavit, Denham a sserted that, during this tim e , two or m ore of his em ploy ees “rem oved
conf idential f irm inf orm ation, i ncluding case f ile inf orm ation and f

orm s [ t hat] had been developed with considerable expense to the f irm o ver m any y ears[ ,] and [ t he em ploy ees]
delivered [ the m aterial] t o C arter and Jordan, who c ontinue to use [ the inf orm ation] in their

own practice.” On a

ppeal, Denham asserted during oral argum ent, a s h e did in his af f idavit,
that the rem oval of inf

orm ation f

rom his of

f i c e w a s d o ne w ithout his authorization or
agreem ent. Denham

f u rther claim s that Carter and Jordan rem o ved the f ile f or the present

5case f

rom Denham Law w ithout the agreem ent or consent of Denha m L a w
. The
benef iciaries subm itted no evidence to contradict or dispute Denham ’s af f idavit. ¶9. Af ter their departure f

rom D enham Law, Carter and J o r d a n o b t a ined a settlem ent of f er
in f e d eral court on the benef

iciaries’ wrongf

ul-death action. The benef iciaries then placed
the instant m atter bef

ore the chancery court by f ili n g t heir declaratory -judgm ent action on July 23, 2014, to determ ine the am ount o wed to D enham Law under the f irm ’ s contingent-f

ee

contracts with f

our of the benef iciaries. The declaratory -judgm ent com plaint asserted that
the f o ur benef

ici a ries w ho initially engaged Denham Law had term inated the f irm ’s representation, and t h e n a l l six of the benef iciaries h ad signed contracts with Carter and
Jordan’s f

irm

. As previously stated, ho w e v e r , the record bef ore t his Court contains no
evidence to show that the benef iciaries term inated Denham Law’s representation. ¶10. The benef

ic i a r i e s f u r t h e r a l l e ged in their com plaint that Denham Law ref used to provide the am ount of the attorney ’s lien that the f irm c l a i me d a gainst the benef iciaries’
settlem ent proceeds. The benef i ciaries theref

ore asked in their com

p laint t hat the chancellor apply the attorney ’s lien p rovision of the contingent-f ee contracts and determ ine the am ount
of the attorney ’s lien to which D enham Law was entitled. The benef iciaries also requested
in their com

p laint that the chancellor award attorney ’s f ees based on Denham Law’s alleged
ref usal to honor the lien clause contained in the contingent-f e e contracts. ¶11. I n r e s ponse to the benef iciaries’ July 23, 2014 declaratory -judgme n t c o mp l a i n t , Denham Law f

iled a pre-answer m otion on July 3 1, 2014, that s o u g h t t h e f ollowing: (1)

6dism issal of the benef iciaries’ com

plaint under Rule 12(b ) ( 6 ) o f t he Mississippi Rules of
Civil Procedure f

or f a ilure to state a claim upon which relief could be granted; (2) dism issal
of the b enef

iciaries’ com

plaint due to the benef

iciaries’ lack of standing; (3) d isqualif ication
of Carter and Jordan as the benef iciaries’ attorney s; (4) sanctions against C arter and Jordan
under Rule 11 of the Mississippi Rules of Civil Procedure; (5) dam ages against Carter and
Jordan under the L itigation Accountability A ct; and (6) all other appropriate sanctions and
relief

. 4 ¶12. On August 4, 2014, the Mississippi Suprem e Court appointed a special judge to hear
the m atter. On August 25, 2014 , D e n h a m Law f i led its responses to the requests f or
adm ission propounded by the benef iciaries. T he f

ollowing m onth, on Septem ber 15, 2014,
the benef iciaries f iled a m otion f

or partial sum m ary judgm e nt. The benef iciaries asserted
that no genuine issue of m a terial f act existed as to whether the term s of Denham Law’s

contracts with f

our of the benef

iciaries def

i ned the proper c alculation m ethod of the
attorney ’s lien. As a result, the benef iciaries sought sum m ary

judgm e n t on that issue. ¶13. On Septem

ber 22, 2014, D e n h a m L a w f iled another m otion seeking to disqualif y
Carter a nd Jordan as the benef iciaries’ a ttorney s. As i n i ts earli er m otion f iled on July 31, 2014, Denham L aw again asserted that Carter a n d J o rdan were m aterial witnesses in the

m atter and that t he chancellor should theref o r e d i s q ualif

y t hem f rom representing the

4 S ee M .R

. C .P

. 1 2 (a)(1 ) (d iscu ssin g h o w t h e f ilin g o f a p erm itted R u l e 1 2 ( b ) m o tio n alters an d ex ten d s th e tim e p erio d f o r f ilin g a resp o n siv e p lead in g ).
7benef

iciaries. As also argued i n t he July 31, 2014 m otion to dism iss, Denham Law claim ed
that the ben e f

i c i a r i es p ossessed no cause of action against the f irm , possessed no standing

to sue, and had suf

f ered no dam ages. Signif

icant to the procedural posture of this case, the
chancellor issued no ruling on Denham Law’s m otion to dism iss the benef i ciaries’ com

plaint
f or lack of standing until he granted the benef iciaries partial s u mma r y j u d g m ent. 5 The
chancellor’s grant o f the dispositive m otion requesting part i al sum m ary j udgm ent is the subject of the instant appeal. ¶14. On October 16, 20 1 4 , t h e chancellor e n tered a n order deny ing Denham Law’s m otions

to d isqualif

y the benef

iciaries’ attorney s, f

or sanctions under Rule 1 1, and f or dam ages under
the Litigation Accountability Act. However, as stated, the chancellor issued no ruling at that
tim e on either Denham Law’s m otion to dism iss f or lack of standing or its m otion to dism iss
f or f a ilure to state a claim under Rule 12(b)(6). Instead, the chancellor ruled o n these bases
of Denham Law’s m otion to dism iss when he granted the benef iciaries partial sum m ary judgm ent. ¶15. The chancellor executed his order granting p artial sum m ary judgm ent on January 19, 2015, and the chanc e r y c l e r k e n t ered the order on January 22, 2 015. In the sum m ary judgme n t order, the chancellor f ound the benef

iciaries possessed standing to sue Denham

Law in this m atter. T he chancellor determ ined that, because the benef iciaries had term inated
Denham Law’s representation, the attorney ’s lien contained in t h e c o n t r a c t s b e t w e e n D e n h am

5 S ee M .R .C .P . 1 2

. 8Law and the f our b enef iciaries applied to def

ine t he calculation of Denham Law’s attorney ’s
lien. Based on his f

indings, the chancellor concluded that, un d e r t h e t e r m s of the lien provision in th e c o n t r a c t s , Denham L aw was entitled to “the value o f its services actually perf orm ed at its norm al hourly rate and f or all its costs, a d vances, and expenses of whatever

nature in c onnection with the claim , including but not lim i ted to [ the] f ees of a ssociates and paralegals.” ¶16. O n F e b r

u a r y 2 , 2015, within ten d ay s o f the entry o f the chancellor’s judg me n t , Denham Law f

iled an unsuccessf

ul m otion to reconsider the chancellor’s judgm ent or to alter

or a m e nd the chancellor’s judgm ent pursuant to Rule 59 of t he Mississippi Rules of Civil
Procedure. In his f

i n a l j u d gm e nt, the chancellor af f irm ed his p rior ruling f

inding that the

term s of t h e c o n t r a cts between Denham Law and the benef iciaries def

ined the proper
calculation m e thod of Denham Law’s attorney ’s lien. T he c hancellor f urther acknowledged
that the parties had agreed t h a t Denham Law’s item ized attorney ’s f e e s am ounted to $10,708.64 and that its costs am ounted to $ 1 4 , 7 9 1 .05. As a result, the chancellor granted
Denham Law an a t t o r n e y ’s lien f or each of these am ounts. Aggrieved by the chancellor’s ruling, Denham

Law appeals.
STANDARD OF REVIEW ¶17. W i th regard to a m o tion to reconsider, this Court has previously stated:
The Mississippi Rules of Civil Procedure provide two a v enues to m ove the trial court to reconsider its judgm e nt. The aggrieved party m ay (1) f ile a m otion f or a new trial or t o alter or am end under Rule 5 9 or (2) f ile f or a relief f rom a f inal judgm ent under Rule 60(b). The tim ing of the m otion to

9reconsider determ ines whether it is a Rule 59 or Rule 60(b) m otion.

A m otion to reconsider f i l ed within ten day s of the entry of the judgm ent f

alls under R

ule 59 and toll s the thirty -day tim e p eriod to f i le a notice of appeal until the disposition of the m otion. C onsequently , a notice of appeal f ollowing t he denial of a Rule 59 m o tion to re c o n s i d er encom passes both the denial of

reconsideration and the underly ing judgm e nt.
W oods v. Victory M

ktg. LLC , 111 So. 3d 1234, 1236 (¶¶6-7) ( Miss. Ct. App. 2013) (internal
citations om itted). ¶18. In the present case, Denham Law f iled its m otion to r econsider within ten d ay s of the
entry of the chancellor’s judgm ent granting the be nef iciaries partial sum m ary j udgm ent.
Denham Law’s m otion theref

ore f alls under Rule 59(e). As a result, on appeal we address
the m erits of

the chancellor’s grant of partial sum m ary judgm ent to the benef iciaries. ¶19. This Court reviews de novo the chancellor’s g rant or denial of a m otion f or sum m ary jud g me n t

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

Sum m ary judgm ent is appropria t e i f t h e p l e a d i n g s , d e p ositions, answers to interrogatories and adm issions on f ile, together wi t h t h e a f

f idavits, show that there is no g enuine issue of any m aterial f act and that the m oving party is entitled to a j udgm ent a s a m atter of l aw. The m ovant bears the initial burden of persuading the judge that no issue o f m ateri a l f a c t exists and that, as a m atter of law, he is entitled to sum m ary judgm ent based on the f acts.
W alz v

. HW

CC-Tunica Inc. , 186 So. 3 d 3 7 5 , 3 7 6 (¶7) (Miss. C t. App. 2016) (internal
citations om itted). ¶20. Although we view the evidence f or sum m ary judgm ent in the light m ost f avorable to
the party opposing the m otion, t h e n o nm ovant “m ay not rest upon the m ere allegations or

1 0denials o f his p leadings, but his response m ust set f orth specif

ic f acts showing that there is

a genuine issue f

or trial.” E

vans , 189 So. 3 d at 1227 ( ¶¶3-4) ( citations om itted). In addition:

W h en a party , opposing s um m ary judgm ent on a claim or d ef ense as to which that party will b e ar th e b u r d e n of p roof at t rial, f ails to m ake a showing suf f icient t o establish an esse ntial elem ent of t he claim or d ef ense, then all other f acts are im m aterial, and the m o v i n g p arty i s entitled to judgm ent as a m atter of law.
Id. at (¶4) (quoting Galloway v. Travelers Ins. , 515 So. 2d 678, 684 (Miss. 1987)).
DISCUSSION ¶21. W e f

ind the second issue raised by Denham Law to be d i s p o s i tive s i nce the record
ref le c t s a genuine issue o f m a terial f act that p recludes sum m ary judgm e nt. W e theref ore
decli n e t o a d d r e ss the r em aining assignm ents of error. Af ter reviewing the present m atter
under the a

pplicable de novo standard of review, a nd af t er a pply ing controlling caselaw, we
f ind the r ecord r e f

lects a d ispute of genuine i ssue of m aterial f act as to whether the attorney ’s
lien provision o f t he c o n t i n g e n t

- f ee contracts controlled. As a result, we reverse the
chancellor’s grant of partial sum m ary judgm ent to the b enef iciaries and rem and the case f or
f urther proceedings consistent with this opinion. S ee W alz , 186 So. 3d at 376 (¶7). ¶22. Denham Law’s second assignm ent of error s t a t e s t h a t t h e c h a n c e l l o r e r r e d by

m odif y ing the term s of the contingent-f ee contracts b etween Denha m Law and f our of the
benef iciaries. Denham Law argues that, despite the existence of a dispute of m aterial f acts,
the chancellor e nf

orc e d t h e a ttorney ’s lien provision over the other term s of the contracts.
Denham Law f

urther asserts t hat its contracts with the f our b enef ici aries clearly c ontained

1 1both an a ttorney ’s lien and the assignm ent of “an undivided [ f orty p ercent] interest in and to
all of [ the benef

iciaries’] claim s and all sum s recovered on their behalf .” Denham Law also
contends t hat the c hancellor erred both in h is interpretation of th e c o n t r a c t s’ term s and by only enf o rcing the clause as to the attorney ’s lien. According to Denham L aw, the chancellor
erred by ignoring the contracts’ clause that assigned the f irm the f orty p ercent contingent f

ee.
In addition, Denham Law asserts that a dispute of m a terial f act exists as to the a ctual hours
of work D enham L aw a nd its f orm er assoc i a tes perf

orm ed o n the case and as to the
substantial benef

i t derived f

rom Denham Law’s work t hat contributed to the subsequent
settlem ent. ¶23. According to Denham Law, the contracts’ term s require a term ination of the f irm by

t h e benef iciaries to trigger the contracts’ attorney ’s lien provision. D enham Law c l a i ms , though, that the record lacks evidence t o show that the benef iciaries ever term i nated Denham
Law’s legal services. In i ts argum ent, Denham Law a lso asserts that the record contains no
evidence to show the f

ollowing: (1) an agreem e nt between Denham L a w a n d i t s f orm er

em ploy e es, Carter and Jordan, as to a division of client case f iles; (2) the severance of any existing attorney -client relationship between the benef iciaries and D e n h a m Law; (3) an accounting of the actual hours that f orm er em

ploy ees spent working on t h e me d i calm alpractice litigation while still em ploy ed at Denham Law; or (4) t he benef i t derived f

rom
Denham Law’s c ontribution to the settlem ent. In asserting that the accounting o f t hose hours
of work rem ains contested, Denham Law argues that a m a terial f actual dispute exists as to

1 2that issue. Relevant to that i s s u e , w e a cknowledge t he r ecord shows that, on its f ace, the contingent-f

ee provision contained in the contracts allows D e n ham Law to act as co-counsel or to associate with other attorney s. 6 ¶24. As previously provide d , t h e r e c o r d ref lects Denham ’s af

f idavit assertions that his
f irm ’s advertising, c onnections, and reputation led to the f irm securing t he c lients i n this case
and led to the f

irm ’s initial i n v o l v e m ent in the m edical-m alpractice litigation. Denham
f urther contended that his f irm used its resources and connections to o btain expert opinions, investigate the case, a nd conduct the research necessary to f ile and pursue the litigation. As stated, t he history of this case shows that Sim m o ns f i rst h ired Denham Law on October 20, 2010, and that f

o ur o f her benef

iciaries later contracted with Denham Law f or the f irm to also
represent them in t he derivative wrongf u l-dea t h l a w s u i t. Denham L aw then f iled the wrongf ul-death lawsuit in circuit court on August, 2 2, 2012. The lawsu i t w a s r e mo v e d to
f ederal court on J anuary 7, 2013. Around Septem ber 12, 201 3 , D e n h a m Law term inated
Carter and Jordan. T he record clearly shows that Denham Law represented the benef iciaries
both when the lawsuit was initially f iled and when it was later rem oved to f ederal court. The
record f ails to f actually establish, however, when, if ever, t he benef i ciaries term inated
Denham Law’s representation. ¶25. In F

ranklin v

. Franklin ex r e l

. Phillips , 858 So. 2 d 110, 112 ( ¶2) (Miss. 2003), the

6 S ee M i ss. R

. P ro f

. C o n d u ct 1 .5 (a) (statin g th at an atto rn ey ’ s f e e sh all b e reaso n ab le); M iss. R

. P ro f

. C o n d u ct 1

. 5 ( e) (p ro v id in g f o r th e d iv isio n o f a f

ee b etw een atto rn ey s w h o are n o t p a r t o f th e sam e law f

irm ).
1 3attorney of one heir f iled the f irst wrongf

ul-death action, a n d t he attorney of another heir
f iled the second action. The suprem e court f ound an im

plied contract between t he attorney s
f or p ay m ent of attorney ’s f

ees f r om the settlem ent. Id. at 121 ( ¶36). The suprem e court held
that the a ttorney who f

iled the s econd lawsuit w as entitled to com pensation under his contract
with h is client. Id. a t 123 (¶47). T he suprem e court f urther f ound that a third attorney who

was associated as co-counsel and contributed substantial tim e a n d e f f o rt in bringing about
the settlem ent should receive com pensation. Id. ¶26. I n t h e p r e s e n t c a s e , a determ ination of the com p ensation due t o D e n h a m L a w necessarily requires us to determ ine whether D enham L aw’s representation was term inated

or whether the representation continued in som e capacity

. As presented in their d eclaratory

judgm ent com

plaint, the issue r aised by the benef iciaries clearly rests upon the language and

term s of Denham Law’s contingent-f ee contracts with t h e f

our benef i ciaries and upon
whether t he f

acts relevant to t hose contract c onditions or contingencies are undisputed in the
record. In addition to reviewing d e novo the chancellor’s grant of partial sum m ary j udgm ent,
this Court r eviews de novo questions invol v i n g t h e construction and i nterpretation of

contracts. Royer Homes of Miss. Inc. v . Chandeleur Homes Inc. , 857 So. 2d 748, 751 (¶4) (Miss. 2003). A s M ississippi p r e c e dent establishes, “ [ a n] attorney ’s r ight to recover a contingency f

e e cannot v est until the contingency , f or which he h as contracted, has
occurred.” Tyson v

. Moore , 613 So. 2d 817, 82 4 ( M i s s. 1992) (citation om itted). Our
caselaw a l so recognizes a law f irm ’s right to “recover the r easonable v a l u e of its services

1 4upon term ination o f its em ploy m ent under [ a] contingent[ -]f e e contract

. . . .” Poole v. Gwin,
Lewis & Punches LLP , 792 So. 2d 987, 990 (¶9) (Miss. 2001) (citations om i tted). 7 ¶27. In apply ing de novo review to the chancellor’s grant o f p artial sum m ary judgm ent, we
also l ook to precedent involving contract interpretation f or guidance. In Royer , the suprem e

court established the f

ollowing three-tiered approach f or analy zing issues of contract construction and interpretation: First, the “f

our corners” test is applied, wherein the reviewing c o urt l ooks to the language that the parties used in expressing their agreem ent. W e m u st look to t he “f o ur corners ” o f t h e c ontract whenever possible to determ ine how to interpret it. W hen c onstruing a contract, we will read the contract as a whole,
so as to give ef

f ect to a ll of its clauses. Our concern is not nearly so m uch with what the parties m ay

have intended, but with what they said, s ince the words
em ploy ed are by f

ar the best resource f

or ascertaining the intent and assigning
m eaning with f

airness and accuracy
. Thus, the courts are not at l iberty to inf er intent contrary to t hat em anating f rom the text at issue. O n the other hand, if the contract i s u n clear or am biguous, the court should a t tem pt to harm o nize the provisions in accord with the parties’ apparent intent. Only if the c ontract is unclear or am

biguous can a court go b ey o nd the text to determ i ne the parties’ true i ntent. The m e re f

act that the p a r t i e s d i s a g r ee about t he m e aning of a contract does not m ake the contract am biguous as a m atter of

law. Secondly , if the court is unable to translate a clear understanding of the parties’ intent, the court should apply t h e discretionary “canons” of contract construction. W here the language of an otherwise enf orceab l e contract is subject to m ore than one f air reading, the reading applied will be the one m ost f avorable to the n o n-draf

ting 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 o f a contract reaches t his point that prior negotiation, agreem ents[ ,] and conversations m ight be consi d ered in

7 C f. E sta te o f S teven s v. W

etzel , 7 6 2 S o
. 2 d 2 9 3 , 2 9 5 ( ¶1 1 ) (M iss. 2 0 0 0 ) (d iscu ssin g w h eth er, in a law su it f

o r th e r e c o v e ry o f atto rn ey ’s f ees, th e co m

p lain t p r o v id ed n o tice o f
a cau se o f actio n f o r co n v ersio n ).
1 5determ i n i n g t he parties’ intentions in the construction of the contract. Of

course, t he s o-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 m arks om itted). ¶28. Jurisprudence pro v i d e s f u r t h e r g u i d a n c e f

o r i n t erpreting contracts that involve
conditions or contingencies. Jurisprud ence ref lects that parol or e xtrinsic evidence is
adm issible to show t he e xistence of a condition. B u tler v. S m i t h , 35 Miss. 457, 463-64 (1858); see also E

s tate of P a rker v. Dorchak , 673 S o. 2d 1379, 1 381-82 (Miss. 1996) (discussing the adm issibility of parol evidence). I n Dibidale of Louisiana Inc. v

. A merican
Bank & Trust Co. , 916 F.2d 300, 307- 08 (5th Cir. 1 990), the Fif th Circuit f

ound parol
evidence was adm issible to show the existence of a condition in a bank loan. I nstructive to

our review, the D ibidale court f u rther f ound that a dispute o f m aterial f act as to the condition precluded sum m a ry

judgm ent on that issue. Id. ¶29. Also helpf

ul t o our analy s is in this case involving a condi t i o n o r c o ntingency , our
caselaw d e f

ines a condition precedent “as a ‘ condition which m ust be perf

orm ed bef

ore the

agreem ent of the parties shall becom e a bi n d i n g c ontract or a condition which m ust be
f ulf illed b ef ore the d u ty to perf

orm an existing c ontract arises.’” Austin v. Carpenter , 3 So.
3d 147, 149-50 (¶12) (Miss. Ct. App. 2009) (quoting Turnbough v

. Steere Broad. C orp. , 681
So. 2d 1325, 1327 (Miss. 1 996)). In Turnbough , the suprem e court f ound tha t , if a f

act or

an event is a condition precede n t t o a duty to p erf orm , i ts absence or n onoccurrence

1 6constitutes a def ense and can ref

lect a dispute o f f

act. T urnbough , 681 So. 2d at 1327. 8

W h ile the case bef

ore us on a p p e a l i n volves n o c ondition p recedent, it does involve a
determ ination of w hether the condition o r contingency of term i nation occurred or whether
Denham Law’s representation continued and, if so, in what capacity

. ¶30. The b enef

iciaries a ssert t hat the contracts’ attorney ’s l ien p rovision controls due to the

o ccurrence of Denham Law’s term ination. To determ ine whether Denham L aw wa s

term inated requires parol or extrinsic evidence. In p ertinent part, each of Denham Law’s
contracts with the f

our benef iciaries stated the f

ollowing:

I d o hereby a ssign , c o n v ey , transf er, and deliver unto said [ a]ttorney s as their f ees
. . . an u n divided [ f

]orty [ p]ercent (40%) interest in and to all of
m y above[

- ]m entioned claim and a l l s u ms w hich m ay be recovered on m y behalf

. It is m y said attorney ’s sole discretion as t o w hen suit s h a l l b e f iled. This contract does not bind either party with r egard to a p peal, and in f

act[ ,] the attorney s specif

icall y have no responsibility to f ile any postjudgm ent pleadings. It is u nderstood and agreed that[ ,] in addition to [ a]ttorney [ ’ s] f ees, all costs and expenses of this litigation will be reim bursed to m y [ a]ttorney s by
m e on m y claim at the tim e of s ettlem ent. It is f urther understood and agreed that my [ a] ttorneys may a ct 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 f o r the value of its services actually perf

orm ed at i t s n o r mal hourly r ate and f or all its costs, advances, a nd expenses of whatever n ature in connecti o n with m y claim , including b ut not limi t e d to [ the] f e es of associates and p aralegals. Any proceeds that I receive f

rom m y litigation w ill b e delivered in a check or draf t pay able t o the f

irm of Denham L aw
. . . and to m e, jointly , to s ecure pay m ent of the f i rm ’s attorney ’s lien. This p aragraph shall survive any t ermination of this contract for any reason.

8 C f. E sta t e o f P a rker , 6 7 3 S o
. 2 d at 1 3 8 1 -8 2 ( f in d in g th at th e lan g u ag e o f a p ro m i sso ry

n o te w as am

b i g u o u s an d , th u s, p aro l ev id en ce w as ad m issib le).

1 7(Em

phasis added). ¶31. As discussed, in granting the benef iciaries partial sum m ary judgm ent, the chancellor
stated that the benef

iciaries t erm inated Denham Law in 2013 and subsequently hired Carter
and Jordan. However, the record ref lects no evidence to show either that the benef iciaries

term inated D enham L aw’s represen t a t i on o r when such term ination o ccurred. The record
also r ef l ects no adm i ssion by D enham Law as to any term i nation by the benef iciaries.

M o r e o v e r , the record c ontains no evidence to show any agreem e nt between D enham Law and
its f o rm er em ploy ees, Carter and Jo r d a n , as to a d ivision of t he client f iles rem oved f

rom
Denham Law f

ollowing Carter and Jordan’s term ination. The record also r e f l e c t s no
evidence of any agreem ent as to severance of the a ttorney

- client relationships. 9 In addition,
the benef iciaries presented no evidence by t estim o ny , af f idavits, or otherwise to contradict
Denham ’s af

f idavit opposing sum m ary judgm ent or t o p rovide evidence o f the term ination
of Denham Law’s representation. ¶32. D u r i n g o r a l a r g u me n t , C a r t e r a nd Jordan asserted that the allegations i n t h e
benef iciaries’ com

p laint suf f iced to establish the b e n e fi c i a r i e s ’ t e r m i n a t i o n o f D e n h a m L a

w ’s representatio n
. However, the a llegations in t he benef iciaries’ com

plaint constituted bare
assertions and nothing m o re. Denham Law f iled a p re-answer m otion to dism iss under Rule

9 S e e O w n b y v. P riso ck , 2 4 3 M i ss. 2 0 3 , 2 0 7 -0 8 , 1 3 8 S o
. 2 d 2 7 9 , 2 8 0 (1 9 6 2 ) (“[ I] f th e co n tract is s h o w n to h a v e b e e n o b tain ed b y f r au d , m istak e, o r u n d u e in f lu e n ce, if it is so ex cessiv e in p ro p o rtio n to th e serv ices to b e ren d ered a s t o b e i n f act o p p ressiv e o r ex to r tio n ate, if th e atto r [ n e] y su p p resses th e f acts o f th e case, o r if h e u ses an y u n f airn ess in
secu rin g it, th e co n t ract w i ll b e h e ld in v alid

. ” ( citatio n o m itted )).
1 812(b)(6), and the chancellor did not dispose of Denham Law’s m otion t o dism iss f or lack of standing until he granted partial sum m ary judgm ent. 10 ¶33. As acknowledged, w e review de novo a grant or denial of s um m a ry judgm ent, and we
view the evidence in the light m ost f avorable t o t he nonm ovant. Evans , 189 So. 3d at 1227 (¶¶2-3). S um m ary judgm e nt i s appropriate where “the pleadings, d e p o s i t ions, a nswers to interrogatories and adm issions o n f ile, together with the a f

f idavits, if any , s how t hat there is no genuine issue as to any m aterial f act . . . .” M.R.C.P. 56(c). ¶34. The plain language of the contingent-f ee contracts between Denham Law and the f our
benef ic i a ries provides Denham Law with a f orty percent interest t o and in all claim s and

sum s r ecovered on the b enef iciaries’ behalf

. T he contingent-f

ee contracts f

urther state that
Denham Law m ay act a s co-counsel or associate with any other attorney at Denham Law’s
discretion. 11 T he c ontracts then provide Denham Law with an attorney ’s lien that survives

term ina t i o n a n d c a l ls f

or the v a lue o f the f

irm ’s services actually perf orm ed a t its norm al hourly rate and f

or all its costs and expenses, i ncluding the f ees of a ssociates and paralegals.
The interpretation of the contracts and the chancellor’s a pplication of t h e c o n tracts’

10 S ee M .R .C .P

. 1 2 (a)(1 ) ( ex p ressly p ro v id in g t h a t th e f ilin g o f a p erm itted R u le 1 2 (b )
m o tio n alters an d ex t en d s th e tim e p erio d f o r f ilin g a resp o n siv e p lead in g ). S ee g en era lly J e f f rey Jack so n , D o n ald E

. C am p b e ll & J u stin L

. M ath e n y , M ississip p i P ra ctice S

eri e s : M ississip p i C ivil P r o ced

u re § 1 6 :1 2 (2 0 1 6 ) (d iscu ssin g t h e ef f ect o f a su m m ary -

j u d g m en t m o tio n o n th e tim e allo w ed f o r f i lin g an an sw er).

11 S ee F ra n klin , 8 5 8 S o
. 2 d at 1 2 2 ( ¶4 2 ) (“T h e w r o n g f u l d eath statu te d o es n o t b y its
ex p ress term s lim it th e case to o n e law y er o r o th erw ise lim it each h e ir’s ch o i ce o f h er o w n co u n sel.”).
1 9attorney ’s lien provision require evidence of the term i nation of Denham L a w ’s

representation. ¶35. The lack of evidence i n the record to show the b enef iciaries’ term ination of

Denham
Law’s representation results in a genuine issue of disputed m aterial f act as to the a

pplicability
of t he attorney ’s l ien provision in the contracts. 12 Consequently , the r e c o rd also ref lects a dispute of m aterial f

a ct in this c a s e as to the com pensation due to and the actual services perf orm ed by Denham Law and as to the calculation of Denham Law’s f ees and expenses.
As a result, we r e v e r se the chancellor’s grant of partial s um m a r y judgm ent to the
benef iciaries and rem and the case f or f urther proceedings consistent with this opinion. ¶36. THE JUDGMENT OF THE J A C K S O N C O U NTY CHANCERY C OURT IS REVERSED, AND THIS C ASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS O PINION. A L L COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEES. LEE, C.J., IRVING, P
. J., AND GREENLEE, J., CONCUR. BARNES AND F A I R , JJ., CONCUR IN PART AND IN T HE RESULT WITHOUT SEP A R A T E WRITTEN OPINION. WILSON, J., C O NCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. GRIFFIS, P.J., SPECIALLY CONCURS WITH SEPARATE WRITTEN OPINION, JOINE D I N P A RT BY FAIR, J. ISHEE AND WESTBROOKS, JJ., NOT PARTICIPATING. GRIFFIS, P.J., SPECIALLY CONCURRING: ¶37. I agree with the m ajority that the chancellor’s f inal j udgm ent that granted sum m ary

12 S ee U H S -Q u a lica re In c. v. G u l

f C o a st C

m ty. H o sp

. In c. , 5 2 5 S o
. 2 d 7 4 6 , 7 5 3 (M iss. 1 9 8 7 ) (f

i n d in g th at, w h en a p arty t o a co n tract co m m en ces a civ il actio n f o r a d eclarato ry j u d g m en t, th e co u rt is n o t lim ited t o e i t h e r accep tin g th e p lain tif f ’ s v eriso n o f th e co n tract o r d ism issin g t h e actio n ; in stead , t h e co u rt sh o u l d ap p ly co n tro llin g p rin cip les
o f law to th e f

acts an d d eclare th e p arties’ rig h ts, statu s, o r o th e r leg al relatio n s).
2 0judgm ent shou l d b e reversed and rem anded. However, I do not agree with the m ajority ’s

r e a soning. The m ajority a ddresses a num ber o f legal c o ncepts that I do not beli e v e a r e
necessary
. ¶38. In Karpinsky v. American National Insurance , 109 So. 3d 84, 88-89 ( ¶¶ 9-11) (Miss. 2013), the Mississippi Suprem e Court addressed the appropriate s tandard of review and the

sum m ary judgm ent standard:
I. Standard of Review

W e review t he grant or denial of a m otion f or sum m ary judgm ent de novo, viewing the evidence in the light m ost f avorable to the party a gainst w hom the
m otion has been m ade.

II. The Sum m ary -Judgm ent Standard
Sum m ary j udgm ent i s appropria t e and shall be r endered if the pleadings, depositions, answers to interrogatories a n d a dm issions o n f i l e, together with the af f idavits, if any , s how that there is no genuine issue as to any m aterial f act and that the m oving party is entitled to judgm ent as a m atter of law. Im portantly , the party opposing sum m ary judgm ent m ay n ot rest upon the m ere allegations or denials o f h is pleadings, but his response, by af f idavit or as otherwise p rovided in this r ule, m ust set f orth specif

ic f a c ts s howing t hat there is a genuine issue f

or trial. If he does not so respond, sum m ary judgm ent, if appropriate, will be entered against him

. This Court has explained that in a sum m ary judgm ent hearing, the burden of producing evidence in support of , or in opposition to, t he m otion is a f unction
o f M i s s issippi rules regarding the burden of proof at trial o n the issues i n question. The m ovant bears the burden of persuading the trial j udge that: (1)
no genuine issue of m aterial f act exists, and (2) on the basis of the f acts e s t a b lished, h e is entitled to judgm ent as a m atter of law. The m ovant bears the burden of production if , at trial, h e w ould bear the b urden of proof on the issue raised. In other words, the m ovant only b ears the burden of production where [ he] would bear t he burden of proof a t t r i a l

. Furtherm o re, s um m ary judgm ent is app r o p r i a t e when t he non-m oving party has f ailed to m ake a

2 1showing s u f f i c i e nt to e stablish the existence of an elem ent essential to the party ’s case, and on which that party will bear the burden of proof at trial. (Citations and quotation m arks om itted). ¶39. In m y de novo review, I h ave considered the m otion f or sum m ary judgm ent f

iled by
the Appellees, who were t he plaintif f s and a re the wrongf

ul-death b enef

iciaries and heirs-atlaw of K im

berly Sim m o ns. The m otion f or sum m ary judgm e nt d oes not include any
af f idavits. Attached to the m o tion were a couple of letters and Denham Law’s response to
requests f o r adm issions. I also have considered the brief f iled by the Appellees, where they
included the f

ollowing statem ent of

f acts:
Kim berly Ann S im m o ns died f rom lung cancer on April 21, 2011. [ Com pl., R. at 1.] Surviving Ms. Sim m ons were her six adult children, David Nelson, Savannah Sim m ons, Misty Loper, Rachel Benef ield, Shannon Sim m ons and Shane Nelson. [ Id

. at 6.] Shane Nels o n l ater passed away as well, and was s u r v i ved by his daughter, T eressa N icole Nelson, a m inor. Guardianship o f Teressa w as assum ed by h er m aternal gra n dm other, Shery l A nn Phillips. In
ear ly 2012, f

our of the children (Savannah Sim m ons, David Nelson, Misty Loper and Shannon Sim m ons) entered into contracts w i th DLF t o r epresent them in a m edical m a lpractice/wrongf ul death action arising f

rom an alleged f ailure to diagnose c ancer leading t o their m o ther’s death. [ Com pl. Exs., R. at 8-12.] DLF n ever entered into contracts with Teressa Nicole Nelson or Rachel Benef i eld. [ Denham ’s Resp. to Req. f or Adm is., R. at 35.] DLF’s contracts with the f o ur heirs it represented included a clause which stated as f o llows:

I do h e r e b y grant to DENHAM LAW FIRM, PLLC an attorney ’s lien f

or the value of its services actually perf o rm ed at its norm al hourly rate and f or all its costs, adva n c e s , and expenses of whatever nature in connecti o n with m y claim , including but not li mited to f ees o f associates and paralegals. Any proceeds that I receive f rom m y litigation will be delivered in a check or d r a f

t pay able to the f

irm of D ENHAM LAW FIRM, PLLC a nd to m e, jointly , t o secure pay m ent of the f

irm ’s attorney ’s lien. This paragraph shall survive the term ination of

2 2this contract f or any reason. [ Com pl. Exs., R. at 8-12] ( em

phasis added). The three heirs with w hom DLF had contracts were r epresented exclusively by Kristopher W

. Carter, a partner at DLF, during t heir tim e at that f irm

. [ Id .; N o tice o f Attorney Lien attached to Denham ’s Resp. to Req. f or Adm is.] On Septem

ber 12, 2013, K

ristopher W

. Carter and Albert R. Jord a n , IV were “dism issed” f rom DLF by Earl L. Denham because th e y w o u l d n ot agree to buy his law f i rm at h is term s, and
were ejected f

rom the building by Denham on the spot. [ Denham L aw’s Resp. to Mot. f or S um m
. J

. , R

. at 45.] Kristopher W

. Carter and Albert R. Jordan, IV, f orm ed the l aw f

i rm of Carter & Jordan, PLLC, shortly thereaf ter. [ Com pl., R

. at 3.] Upon lear n ing of Carter and Jordan’s departure, the heirs/benef

iciaries with whom DLF had contracts term inated DLF’s services. [ Id. ] DLF im m ediately f

iled Notices of Attorney Lien f or the work perf

orm ed at DLF on the case prior to Carter’s and Jordan’s d eparture. [ Exs. H and I to Denham Law’s Resp. to Mot. f or Sum m . J., R. at 76-80.] Over t he next f ew m onths, a ll of the heirs/wrongf ul death benef

iciaries (Savannah Sim m ons, D a v i d N elson, M isty L oper, Rachel Benef ield, Teressa Nicole Nelson an d Shannon Sim m o ns) contracted with Carter & Jordan, PLLC, to represent them in the wrongf

ul death/m edical m alpracti c e s u i t

. [ Com p l., R

. at 3.] Af

ter extensive litigation in f

ederal court, C&J reached a tentative settlem ent of the l a w s u i t o n behalf of the Heirs. [ Id .] C&J requested DLF’s l ien am ount t o f inalize the settlem e nt, but DLF ref used to state t h e a m ount of its lien (even when requested to do so by the f e deral m agistrate judge). [ Pl.’s M ot. f or S u mm. J

. , R. at 29.] Accordingly , the Heirs had no choice but to f i l e a Com p l a i n t fo r D e c l a

r atory J udgm ent in t he Chancery Court of Jackson County , Mississippi, on July 23, 2014, a sking t hat the court enf o rce the term s of DLF’s contract def

i ning its a ttorney lien. [ Com p l., R. at 1.] The Heirs additionally
ser v e d R e q uests f

or Adm ission on DLF, to which DLF later responded. [ R. at 35-38.] Inter alia, DLF explicitly adm itted the f ollowing: (1 ) t h a t i ts contracts w ith the f

orm er clients all contained the ref erenced term ination clause; (2) that the contracts contain a provision def ining the am ount of its l ien in the event o f term i nation of em ploy m ent of DLF; (3) that DLF was bound by these contracts; a nd (4) t hat it ref used to agree t o a l ien calculation in accordance with its own contract. [ R. at 3 5-38.] T he Heirs f iled a Motion f

or Sum m ary Judgm ent regarding the lien calculation and t he e n f orceability of the contract clause, which, af t er 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 r eal issue i s the client co n tract, is it not? ”; he replied “Yes, sir.” [ T r. a t 8 .] The Court explained its rejection of

2 3DLF’s argum ent during the he a r i ng, stating, “I know this. I know that these

people have a contract with y our law f irm , and they f

iled a d ec action which is a classic dec action litigation to say what are our rights under that contract.” [ Tr. at 1 6. ] DLF f

urther e xpressly waived its request f or sanctions and any counterclaim s, cross-claim s and third party c l aim s it m ight have. [ Tr. at 46.] DLF f iled m otions to d i sm iss and t o disqualif y counsel, claim ing that t he Heirs did not have s tanding to bring suit , a n d t hat Carter and Jordan should be disqualif ied as counsel because they were “m ateria l w i tnesses,” but the Special Chancellor denied those m otions. The Special Chancellor ruled, in his Order
on the Motion f

or Sum m a ry J udgm e nt, that the Heirs did ha v e s t anding to bring suit, and that DLF’s lien wa s d e f i n e d b y the term s of its own contract. [ R. at 9 4-95.] A f

ter the parties stipulated as to t he d ollar am ount of DLF’s tim e and e xpenses on the case, t h e t r i a l c ourt entered its Final O r der and Judgm ent on March 20, 2 015, stating t he am ount c ertain of DLF’s lien. [ R. at 114.] (Footnote om i tted). ¶40. I have also considered the af f idavit Denham Law f

iled in response to the m otion f o r

sum m ary judgm ent. In that af f idavit, Denham Law of

f ered evidence of his f

irm ’s contract
and questioned whether Carter a nd Jordan had a s eparate contract. This i ndicated that there
is a genuine issue of a m a terial f act as to whether Carter and Jordan’s contractual agreem ent

was based on the D enham Law contract, or whether there was a n ew contract that term inated
the Denham L aw contract. The signif icance of t h i s issue is that this genuine issue of a

m aterial f a ct m ay decide under which of the two paragraphs in the contract Denham Law was
entitled to be com

pensated. ¶41. Accordingly , I f

ind that the Appellees have f a iled to satisf

y t heir burden of proving
that no genuine issue of m aterial f act exits a n d they a re entitled t o a judgm ent as a m atter of law. For this reason, I would reverse and rem and f or f urther proceedings.

2 4¶42. In addition, I b elieve this case points to an inconsistency in the Mississippi Rules of

Court that should be addressed. ¶43. If a m otion f

or sum m ary j udgm ent is f iled in circuit or county court, Rule 4 .03 of the
Unif orm Rules of

Circuit and County

Court provides in relevant part: The provisions of

this rule shall apply

to all written m otions in civil actions.
1. The original of each m otion, a nd all af f idavits and o ther supportin g evidentiary docum ents s hall be f iled with the clerk in the county where the action i s d o cketed. The m o ving party at the sam e tim e shall m ail a copy thereof to the j udge presiding in the action at the judge’s m ailing
a d d r e s s
. A proposed order shall accom pany the court’s copy of an y m o tion w hich m ay be heard ex parte o r is to be granted by consent. Respons e s and s upporting evidentiary docum ents s hall be f i led in the
sam e m anner.
2. In c ircuit cour t a m em orandum of a uthorities in support of a ny m otion to dism i

ss or for sum m ary judgm ent shall b e m ailed to the judge presiding over the a ction at t h e t i m e that the m otion is filed. Respondent shall reply within ten ( 10) days after service o

f m ovant’s
m em orandum
. A rebuttal m e m o r a ndum m ay be subm i tted within five ( 5) d a ys of service of the reply m e m orandum
. M ovants for
sum m ary judgm ent shall file with the c lerk as a part of the m otion an item ization of the f

acts relied upon and not g enuinely d i s p u t ed and the respondent shall indicate either agreem e n t or specific reasons for disagreem e nt that such facts are undisputed and m aterial

. Copies of
m o tions to dism i ss or f

or sum m ary judgm ent sent to the judge shall also be accom panied by copies of the com plaint and, if

f iled, the answer.
3. A ccom

pany i ng m em oranda or brief s in support of other m otions ar e encouraged b ut not required. W h ere m ovant h as s erved a m em o randum
or brief , respondent m ay serve a reply within ten (10) day s af ter service of m o vant’s m em orandum o r b r i e f

. A rebuttal m em o randum or brief
m a y be s erved within f ive (5) day s of service of t h e r eply
m e m o randum

. (Em phasis added).

2 5¶44. The Unif orm Chancery Court Rules do not have a s i m ilar p r o c e d u r e
. There is no

reason that the procedures in circuit, chancery , and c ounty c ou r t s are not the sam e with
respect to m otions f

or sum m ary ju d g me n t

. Here, it would have been helpf ul to the
determ ination of the m otion f or the chancellor a n d t h is Court to have the b enef it of the

m ovan t s ’ “ i tem ization of the f a cts relied u

pon and not g enuinely disputed” a n d to have
Denham Law “indicate either agreem ent o r specif ic reasons f

or disagreem ent that such f acts

are undisputed and m aterial.” I call upon the suprem e court to am end the Unif orm C hancery
Court R ules to include a provision sim ilar to Rule 4.03 o f the Unif o rm Rules o f Circuit and County Court. FAIR, J., JOINS THIS OPINION IN PART.

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