IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI N O. 2019-WC-00581-COA JAY FOSTER APPELLANT

v. SANDERS CONSTRUCTION AND BUILDERS & CONTRACTORS ASSOCIATION OF MISSISSIPPI APPELLEES

DATE OF JUDGMENT: 02/26/2019 TRIBUNAL FROM W HICH APPEALED: MISSISSIPPI W ORKERS’ COMPENSATION COMMISSION ATTORNEYS FOR APPELLANT: CHUCK McRAE JAMES (JAY) R. FOSTER II ATTORNEY FOR APPELLEES: BRYAN GRAY BRIDGES NATURE OF THE CASE: CIVIL - W ORKERS’ COMPENSATION DISPOSITION: REVERSED AND RENDERED - 04/07/2020 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE J. WILSON, P.J., WESTBROOKS AND LAWRENCE, JJ. J. WILSON, P.J., FOR THE COURT: ¶1. Richard Corsby hired attorney Jay Foster to pursue a workers’ com p ensation claim , but Corsby later f

ired Foster and hired a new attorney

. Foster then f iled an a ttorney ’ s f

ee lien in Corsby ’s case. Af

t er Corsby settled his workers’ com pensation claim , he f

iled a m otion
to cancel or reduce Foster’s lien. The Mississippi W o r k e r s ’ Com pensation Com m ission eventually held a hearing on the m otion. Foster, C orsby ’s new attorney , and counsel f or the

em ploy e r/carrier a ll appeared. Af ter the hear i n g , t

h e C om m ission sanctioned Foster pursuant
to Mississippi Code Annotated section 71-3-59 (Rev. 2011) by o rdering him to pay $4,000 in attorney ’s f

ees to Corsby ’s new attorney and $4,000 in attorney ’ s f ees to counsel f

or theem

ploy e r/carrier. On appeal, Foster challenges the o rder requiring him t o pay a ttorney ’s f ees
to counsel f

or the em ploy er/carrier. 1 W e h old that the C om m ission’s order m u st be reversed in relevant part because the em ploy er/carrier should have sim p ly held the disputed attorney ’s f ees until the dispute b etween Corsby and Foster was resolved. Nothin g t h a t F o s t e r did should h ave required any action or m aterial work by counsel f or the em

p loy er/carrier. Theref ore, we reverse and render the order of the Com m ission in relevant part. FACTS AND PROCEDURAL HISTORY ¶2. In June 2017, Richard Corsb y h i r e d a t t o r n e y J a y F o s t e r t o f i l e a w o r kers’

com pensation claim against C orsby ’s em ploy er, Sanders Construction. 2 However, just two

m onths later, Corsby t erm inated Foster as h is attorney

. Corsby notif ied F oster of his decision by certif ied m ail, which Foster received on August 7, 2 017. On August 15, 2 017, Foster f iled

a m otion to withdraw as Corsby ’s counsel and a sserted an attorney ’s f e e l i e n a g ainst any recovery by Corsby . Foster claim ed that he was entitled to be paid $9,231 f or 30.77 hours of work at $300 per hour. Corsby thereaf ter h ired John T. Lam ar III to represent him , and
Lam ar eventually negotiated a settlem ent with Sanders. Corsby f iled a petition f

or approval of a f inal com prom ise settlem ent with the Com m ission on Septem b er 25, 2018. ¶3. On Septem

ber 18, 2018—one week bef ore he petitioned the C om m ission to approve

1 F o ster in f

o rm ed th e C o m m issio n th at “th e issu e o f atto r n ey ’s f e es [ w as] co m

p letely settled w ith [ C o rsb y ’ s] cu rren t a t t o r n ey ,” a n d C o rsb y ’s cu rren t atto rn ey d id n o t en ter an ap p earan ce o r f

ile a b rief o n ap p eal. F o ster’s b rief s o n ap p eal sp ecif

i cally ad d ress o n ly th e o rd er to p ay f

e es to co u n sel f

o r th e em p lo y er/carrier. T h eref

o re, w e ad d ress o n ly th at p art o f th e C o m m issio n ’s o rd er.

2 We w ill ref

e r to C o rsb y ’s em

p lo y er an d its w o rk ers’ co m p en satio n in s u ran ce carrier co llectiv ely as “S an d ers.” 2his settlem ent—Corsby f iled a m otion to c ancel or reduce Foster’s lien. C orsby disputed the

am ount of tim e that Foster claim ed to h ave s p e n t o n t h e case. Corsby also noted that the hourly rate cha r g e d b y F oster ($300) was m ore than the r ate s tated in his contract ($280). Finally , C orsby com

p lained that Foster billed him f or signif icant tim e a f

t e r F oster had already received Corsby ’ s letter term inating his services. ¶4. On Septem

b er 26, 2018, the Com m ission a pproved a settlem e nt b etween Corsby and Sanders. The settlem ent provided f or a lum p sum pay m ent of $145,000, which i ncluded a twenty

- f ive percent attorney ’s f

ee ($36,250). Pursuant to t he Com m ission’s order, Sanders agreed to retain that am ount in trust pending resolution of Foster’s lien. ¶5. On October 1 , 2018, Foster responded to Corsby ’s m otion to c ancel his lien with a

m otion f o r sum m ary judgm ent. Foster asked the Com m ission to deny Corsby ’s m otion and to order Corsby

to pay his attorney ’s f

ee. ¶6. On October 8, 2018, Sanders f iled a com bined response t o Corsby ’s m otion to cancel the lien and Foster’s m otion f or sum m ary j u d g m ent. I n the two-page docum e nt, Sanders stated that “[ w]hile it [ m ight] s eem [ that Sanders would] have no interest with respect to this attorney f ee dispute, that [ was] not the case.” Sanders stated t hat it c ould not “close this open claim until this issue [ was] resolved

. . . and f u nds [ were] di s b ursed.” Theref ore, Sanders requested a prom

pt ruling on the issue. ¶7. On N ovem

ber 9, 2018, t he Com m ission ordered Foster and Lam ar t o appear bef ore the C om m ission concerning the dispute over $9,231 in a ttorney ’ s f ees. The C om m ission also ordered Sanders to release the rest of the attorney ’s f

ees ($27,019) to Lam ar.

3¶8. The Com m ission set a hearing f or January 28, 2019. However, on January 25, 2019,
Foster f i led a m otion f

or a c ontinuance, stating that he was “very sick and [ could] hardly talk.” The hearing was rescheduled f or February 2 1, 2019. ¶9. On February 15, 2019, Sanders f iled a m otion f

or reim bursem ent of attorney ’s f ees, citing R ule 1 1 of the Mississippi Rules of Civil Procedure, t he L itigation Accountability Act, Miss. Code Ann. § § 11-55-1 to -15 (Rev. 2019), and Mississippi Code A nnotated section 71- 3-59. Sanders asked the Com m i ssion to order F oster to pay “sanctions, a ttorney s ’ f ees, and expenses”—but “[ o]nly in the event the Com m ission [ f ound] that [ Foster’s] lien . . . [ was]
not valid.” On February 18, 2019, Corsby f iled a s im ilar m otion asking the Com m ission to order Foster to pay

attorney ’ s f

ees and expenses if

Foster’s lien was deem e d invalid. ¶10. At the February 21, 201 9 h e a r i n g b e f o re the Com m i ssion, Foster adm itted that his
contract provided f

or an h o urly rate of $280 but that his lien c harged a n hourly rate of $300.
He attributed the d iscrepancy to a sof tware error. The Com m ission asked Foster why he had
not f iled a corrected lien. Foster adm it t e d t h a t h e had been “ on notice” of the error f or several m onths and that he should have corrected it. ¶11. Foster also adm i tted that although his bill indicated that he h ad personally p erf orm ed all of the work on the case f ile, it was p ossible that a p aralegal did som e of the w ork. He said that any w ork that a paralegal perf orm ed should have been b illed at a rate o f o nly $75 per hour. Foster a lso attem

pted to explain an e n try f o r 8.75 hours ( $2,625) on August 15, 2017—i.e., eight d ay s af t er Foster knew t hat Corsby h ad term inated him

. The only description f

or that block of tim e was “ 35 em a ils to client.” According to Foster, these were

4“f

orm em ails” t h at “ let[ ] the c lient know how workers’ com p works and what needs t o be done.” Foster stated that he had sent the em a ils to Corsby earlier b ut did not record that t im e
contem poraneously

. Foster stated that he charged 0.25 hours f or each f o rm em ail, which he considered “ under billed” because it took him m uch longer than that to c r eate the f o rm s (when he originally created them , y ears ago). Foster also denied that Lam ar had ever tried to contact him

to negotiate a settlem ent of the lien. ¶12. Lam ar stated to the Com m ission t hat C orsby r eviewed Foster’s b ill and disputed the

am ount of work Foster claim ed to have done. Corsby decided that he wanted to f ile a m otion
to cancel the lien. Lam ar also stated that beginning in S e p t e m ber 2018, he c alled Foster several tim es to try to settle the dispute, but Foster n ever returned his calls u ntil the week of the hearing. Lam ar believed that Foster had unduly delay ed resolution of

the case. ¶13. The C om m ission took the m atter under advisem ent. Bef o re the Com m ission ruled,
Foster a nd Lam ar settled all of their pending m o tio n s r e l a t ed t o the attorney ’s f ee lien and asked t he C om m ission to dism iss those m otions. The Com m ission granted t heir joint request
to dism iss their pending m otions as m oot. On February 26, 2019, t he Com m i ssion ordered
Foster to tender $4,000 to Lam ar a nd $4,000 to counsel f or Sanders. The C om m ission based the sanctions on assum

ptions of twenty hours of work related t o the a ttorney ’ s f ees m otions

a t a r a t e of $200 per hour. The Com m ission’s order was entered “on its own m otion” and pursuant to its authority

under Mississippi Code Annotated section 71-3-59. ¶14. On ap p e a l , F o s ter a dvances several argum ents. He argues that the Com m ission’s decision is arbitrary and v i olates due process because there is no evidence of any attorney ’s

5f

ees incurred b y Sanders and because he was unable to cross-exam ine witnesses on the issue.
H e a l s o a r gues t hat he did not im properly delay the case or resolution o f the lien. He a l s o argues that Sanders lacks “standing” to recover attorney ’s f ees and should n ot have incurred
any f ees because it had no stake in t he f ee dispute between him and La ma r . Finally , he
argues that the Com m i ssion’s decision should be reversed because it f ailed to consider the
McKee f actors. See McKee v. McKee , 418 So. 2d 764, 767 (Miss. 1982). ANALYSIS ¶15. Although Foster has asserted several i ssues o n appeal, the real issue i s sim ply whether the Com m ission erred b y ordering Foster t o pay attorney ’s f ees to Sanders. In general, our “review o f a decision of t he W orkers’ Com pensation Com m ission is lim ited to determ ining whether the decision was supported b y s ubstantial evidence, was arbitrary and capricious,

was bey ond the scope or power of the agency to m ake, or v iolated

. . . constitutional or statutory rights.” Gregg v. Natchez Trace Elec. P ower Ass’n , 64 So. 3d 473, 475 (¶8) (Miss. 2011). However, “we review i ssues of l a w d e n o vo.” Miss. Mfrs. Ass’n W orkers’ Comp. Grp. v. Miss. W

orkers’ C omp. Grp. Self-I

nsurer Guar. Ass’n , 2 81 So. 3d 108, 114 (¶24) (Miss. Ct. App. 2019) (quoting Huey v. RGIS Inventory S pecialists , 2 6 9 So. 3d 362, 366 (¶12) (Miss. Ct. App. 2018), cert. denied , 258 So. 3d 286 (Miss. 2018)). ¶16. If the Com m ission determ ines that a p arty has “instit u t e d , c o n t i n u ed or delay ed” proceedings “without reasonable ground,” then the Com m ission m ay require the guilty party
to re i mburse the opposing party f or its “reasonable expenses, i ncluding attorney ’s f ees, caused by such i nstitution, continuance or delay .” Miss. Code Ann. § 7 1-3-59(2). As noted,

6the C om m ission exercised this authority and sanctioned Foster f or delay ing the proceedings by ordering him

to pay $4,000 to both Lam ar and counsel f or Sanders. ¶17. As noted above, see supra n.1, it appears that Foster settled any dispute with Lam ar, and his brief o n appeal does no t a d d r ess the Com m ission’s o rder to pay f ees to Lam ar. Theref ore, we address only the Com m ission’s order insof ar as i t required Foster to pay f ees
to counsel f

or Sanders. At the hearing b ef ore the Com m issio n , c o u n s e l f or Sanders only spoke brief

ly

. Counsel stated that Sanders did not “ have m uch of a dog in the hunt” and took “no position” regarding t he validity of Foster’s lien. Rather, Sanders just had “an open f ile” that it wanted to clo s e . C o u n sel represented that h is f irm had expended “over 3 0 hours of attorney and paralegal t im e ” because of “non-com m unication, n on-cooperation” by Foster. And counsel stated that S anders w as asking f or its “expenses to be reim bursed in the event the lien is f

o und to be invalidated.” 3 ¶18. W e conclude that the C om m issio n a b u s e d i t s d i scretion by ordering Foster to pay attorney ’s f

ees to c ounsel f

or Sanders pursuant to section 71-3-59. N o thing t hat Foster f iled

or did should have “caused” Sanders to incur any m aterial expense or attorney ’s f ees. Miss. Code Ann. § 71-3-59(2). Counsel f or Sanders a cknowledged that his client had no “dog in the hunt” and t ook “no position” with respect to the f ee dispute between Foster and Lam ar. On Novem

ber 9 , 2018, the Com m ission ordered Foster and Lamar to ap p ear b ef ore the C o mmission concerning their dispute over $9,231, b ut t he C om m ission never order e d

3 B o th C o rsb y an d S an d ers req u ested an aw ard o f atto rn ey ’s f ees o n l y if F o ster’s l ien w a s d eem ed in v alid

. T h e C o m m i ssio n n ev e r d eem ed th e l ien in v alid , i n w h o le o r in p art, b ecau se F o ster an d L a m a

r s e t t l e d t he di s p ute. H o w ev er, th e C o m m issio n u ltim ately aw ard ed f ees “o n its o w n m o tio n ” an d n o t o n th e m o tio n o f e i th er p arty

. 7Sanders to appear. Indeed, the Com m ission did not order S a n d e r s t o d o any thing but continue to hold t he f

unds un til the Foster-Lam ar d ispute was resolved. No f urther action by Sanders was necessary. Rather than f iling a m o tion a n d r e s p o n s e s and appearing f or a hearing, S anders should have sim p ly waited f

or a f urther ruling f

rom the C om m ission. Had it done s o, i t c o u l d have a voided any additional expense. A ny additional expense that it incurred in relation to the Foster-Lam ar f ee dispute was not “ caused by ” Foster. M iss. Code Ann. § 71-3-59(2). Theref ore, the Com m ission abused its discretion by ordering Foster to
pay $4,000 to counsel f

or Sanders. ¶19. W e understand t hat an “open f ile” m ay be an annoy ance f o r a carrier. H owever, that is sim ply part of being a workers’ com pensation i nsurance carrier. Occasionally a dispute will arise between a current and f orm er attorney

f or the claim a nt, as it did in this case, and it m ay require the carrier to hold som e f unds until the dispute can b e resolved. B ut that is all that it requires the carrier to do—hold the f unds. W hatever m inim a l adm inistrative burden that involves is just part of the cost of

doing business as a carrier. ¶20. W e also acknowledge tha t t h e C o mmi s s i o n w a s concerned by Foster’s f ailure to
correct errors i n his billing statem ent. T he Com m i ssion m ay also have b een concerned by

som e s pecif

ic entries in Foster’s billing statem e nt. Such issu es m ay be a v alid basis f or a penalty or an award o f a t t o r n ey ’s f ees under section 71-3-59, and n othing in our opinion addresses or disturbs the C om m ission’s order insof ar as i t or d e r e d F o s t er to pay $4,000 to Lam ar. As stated, the Foster-Lam ar dispute appears t o have been settled, and Foster’s brief

on appeal does not address the award to L am ar. W e sim ply hold that the Com m i ssion abused

8its discretion b y awarding attorney ’s f ees to Sanders w he n S a n d e r s w as not r equired to do
any thing but hold f

unds until an attorney ’s f ee lien was resolved. ¶21. REVERSED AND RENDERED. BARNES, C.J., GREENLEE , WESTBROOKS, TINDELL, M cDONALD, LAWRENCE , McCARTY AND C. WILSON, JJ., CONCUR. C ARLTON, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION. CARLTON, P.J., DISSENTING : ¶22. I dissent because u n der our lim ited appellate r eview o f a C o mmi s s i on’s decision, I f ind that the Com m i ssion did n ot abuse its discretion in sanctioning Foster pursuant section 71-3-59 by ordering him to pay $4,000 in attorney ’s f ees to counsel f

or t he em ploy er/carrier (Sanders). 4 ¶23. In reversing and r endering the Com m ission’s deci sion, the m ajority f inds that there

was no n eed f

o r Sanders to take any

action with respect to Foster’s disputed attorney ’s f ee lien, other than hold the f unds until the dispute was resolved. For this r eason, according to the m ajority , any expense t hat Sanders incurred relating to this d ispute was not “caused by ” Foster, see Miss. Code Ann. § 71-3-59(2), and the Com m i ssion t heref ore abused its discretion in awarding attorney ’ s f ee to Sanders. ¶24. I disagree. Although the Com m ission’s Novem ber 9, 2018 order did not specif ically require Sanders to appear at the hearing on the dispu t e d a t t o rney ’s f ee lien, I f

ind that it is apparent f

rom the F e b r

u a r y 21, 2019 transcript o f that hearing that the Com m i ssion f ound

4 A s th e m aj o rity r e co g n izes, o u r “rev iew o f a de c i s i on o f th e Wo r k ers’ C o m

p en satio n C o m m issio n is lim ited to d e t e r min in g w h e th er t h e d ecisio n w as su p p o rted b y su b stan tial ev id e n c e , w as arb itrary an d cap ricio u s, w a s b ey o n d th e sco p e o r p o w er o f th e ag en cy to m ak e, o r v io lated . . . co n stitu tio n al o r statu to ry rig h ts.” G reg

g , 6 4 S o . 3 d at 4 7 5 (¶8 ). 9it proper f

or S a n d e r s to be there and f or its counsel t o participate in the h earing. I f ind nothing in t he record that restricts or in any way w ould prohib i t S a n d ers’s counsel f rom representing it a t the Com m ission hearing, n or do I f i nd any thing in the record that would indicate that the Com m ission did not want or expect Sanders’s counsel to be there. ¶25. In particular, Sanders’s counsel was a l l o w e d t h e s a me a mount of tim e to present Sanders’s position to the Com m i ssion as the Com m ission allowed F oster a nd Corsby ’s current counsel, Lam ar. Indeed, Sanders’s counsel was asked to be the f irst one to present his argum ent. In presen t i n g h i s a rgum ent, Sanders’s counsel detailed the delay and
unnecessary

m otion practice that Foster caused Sanders, as f ollows: This hearing was scheduled, a f ew tim es, b y the Com m ission. Ultim ately , last week, the em

ploy er/carrier f

iled a m otion f

or reim bursem ent of

expenses. It’s t he positio n o f t h e em ploy er/carrier that t his m atter should h ave been handled, f

i v e , six m onths ago. W e should have been able to negotiate a lien. W e should have been able to get this settlem ent approved by the C om m ission, f unds disbursed[ ,] and the em ploy er/carrier close the f

ile. At this point, m y o f

f ice has over 30 hours of

attorney a nd paralegal tim e t ied up in this m atter just sim

ply because we’re dealing with n on-com m unication, non-cooperation here

. . . . The em ploy er/carrier a re asking f or expenses to be reim bursed in the event the lien is f ound to be invalidated. ¶26. Later in the hearing, the Com m ission s pecif i cally asked Foster, Lam ar, and Sanders’s counsel to provide t heir input on the “ f e e or the am ount of tim e spent due to the delay .” Sanders’s counsel responded, “Mr. Chairm an, I’m at, approxim ately , [ thirty ] h ours up until today

. And, I’m of course, as the em ploy er/carrier attorney , I bill o ut less than the $280.00, $250.00 or $300.00 that’s been discussed here.” ¶27. Af ter reviewing the record as a whole, as well a s hearing Mr. F oster’s testim ony at the

1 0hearing a n d t he argum e nt of counsel, the C om m ission f ound that Foster delay ed the
p r o c e e d i n g s of the claim w ithout reasonable grounds and awarded attorney ’s f ees as
contem pla ted by section 71-3-59. In its order, the Com m ission described the errors in Foster’s lien and F oster’s f ailure t o correct that l ien af ter being put o n notice of those errors. The Com m ission also described in its order the unnecessary mo tion practice caused by Foster’s actions, including m otion practice involving Sanders. ¶28. I f i nd that it was well within the C o mmi s sion’s discretion to f ind this d elay

created
unnecessary litigation not j ust f or the claim a nt, but also f or the e m

ploy er/carrier, and sanctions against Foster u n der section 71-3-59, including p a y ment of $4,000 in attorney ’s f ees to Sanders’s counsel, were appropriate. Sanders w as not able to close the open claim until t he C om m i ssion entered an order, and, af ter Foster f

ailed to com m

unicate with Lam ar regarding the lien, Sanders’s counsel b elieved t hat in order to protect his c lient’s interest, he

was required t o litigate this m atter through m otions, r e s p o n s e s to m otions, scheduling and rescheduling, and preparing f or a nd appearing at the hearing bef ore the Com m i ssion to argue
t h i s ma t t e r . I do not believe it is our role to d ictate the scope or p aram eters of a lawy e r’ s representation of h is or her client under the circum s tances in this case. For these reasons, and under our lim ited standard of review, I respectf ully d issent f

r om the m ajority ’s decision to reverse and render in this case.

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