IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2015-CA-01412-COA BAR-TIL, INC. APPELLANT/CROSSAPPELLEE

v. SUPERIOR ASPHALT, INC. AND PULL-A-PART OF JACKSON, LLC, MMC MATERIALS, INC., AND H & E EQUIPMENT SERVICES, INC. APPELLEES/CROSSAPPELLANTS

DATE OF JUDGMENT: 09/17/2015 TRIAL JUDGE: HON. J. DEW AYNE THOMAS COURT FROM W HICH APPEALED: HINDS COUNTY CHANCERY COURT, FIRST JUDICIAL DISTRICT ATTORNEYS FOR APPELLANT: CHUCK MCRAE SETH CLAYTON LITTLE CHRISTOPHER ANTHONY BAMBACH ATTORNEYS FOR APPELLEES: JOSEPH LEE ADAMS LINDSAY THOMAS DOW DLE DONALD ALAN W INDHAM CRANE D. KIPP PATRICK VANCE DALY CORY LOUIS RADICIONI NATURE OF THE CASE: CIVIL - CONTRACT TRIAL COURT DISPOSITION: ENTERED ORDER DISTRIBUTING INTERPLED FUNDS DISPOSITION: REVERSED AND REMANDED - 05/09/2017 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE GRIFFIS, P.J., ISHEE AND GREENLEE, JJ. GREENLEE, J., FOR THE COURT: ¶1. This case requires this Court to decide whether a plaintif f a ttorney ’ s charging lien has attached and has priority over t h i r d

- p a r ty garnishors when the m onies satisf y ing a f inal judgm ent obtained by the attorney ’s ef f orts are i nterpled b y the garnishee into the registryof the court r a ther than delivered to the attorney ’s actu a l p ossession. W ith n o statutory

directive here, we apply c omm on-law principles to h old that the charging lien has attached and does have priority

. FACTS AND PROCEEDINGS BELOW ¶2. I n 2 0 0 7, Bar-Til Inc. entered into a contract w i th Superior Asphalt Inc. to perf orm work related to clearing acreage and stripping t opsoil. Superior Asphalt f ailed to pay Bar-Til f or all of the work com

pleted. R e p r esented by the McRae Law Firm o n a contingency -f ee basis, Bar-Til sued Superior Asphalt f or breach of

contract in 2009. ¶3. As a result of Superior Aspha l t ’s f a i lure to pay B ar-Til, B ar-Til f a iled to pay

H&E Equipm ent Services I nc. H&E Equipm ent obtained a def ault judgm ent against Bar

- T i l i n 2009, and in 2010 was g ranted perm ission to intervene in Bar-Til’s suit again s t S u p erior Asphalt. H&E Equipm ent properly served a writ of garnishm ent a gainst Superior Asphalt in 2012. ¶4. In 2 012, a f

t e r McRae L aw Firm expended m ore than $16,000 in e xpenses, Bar-Til

won a judgm ent against Superior Asphalt (including interest) in the am ount of $205,839.65. Superior A sphalt did not appeal the judgm ent, but instead f iled a mo t i o n t o interplead $205,839.65 into the registry o f the court under that sam e cause num ber. Bar-Til appealed the chancellor’s denial of punitive dam ages. W hile the appeal was pending in this Court, the chancellor granted Superior A sphalt’s renewed m otion to interplead the f unds, and issued an order declaring the judgm ent satisf ied in f ull. ¶5. In 2014, this Court issued an opinion a f f i r ming the c hancellor’s denial of Bar-Til’s

2request f

or p unitive d am ages. Counsel f or another Bar-Til creditor, MMC Materials Inc ., noticed our o pinion while browsing this Court’s weekly hand-down list. MMC Materials had obtained a judgm ent against Bar-Til in 2008 unrelated to the contract d ispute between BarTil and Superior Asphalt. N ewly aware that Bar-Til had f unds available to pay its creditors, MMC Materials f

iled a m otion to intervene and c l aim a portion of the interpled f unds. Also around this tim e , MMC Materials properly served Superior Asphalt with a writ of garnishm e nt, which Superior Asphalt answered acknow l e d ging its debt to B ar-Til and ref erencing the interpled f

unds. ¶6. The McRae Law Firm also f iled a m o tion asserting priority over the interpled f unds and requesting perm ission t o withdraw an am ount representing its f orty -percent contingency f ee and reim

bursem ent f

o r expenses. ¶7. The interpled f

unds were i nsuf

f icient t o cover the claim s of all parties. Rather than determ ine the r espective priority of the parties, the chancery court doled o ut a portion of the f unds to each p arty

—including t o the law f irm , H&E Equipm e nt, MMC M ater i a l s , and another individual creditor who had a judgm ent against Bar-Til but who had n ot o btained a writ of garnishm ent. The court awarded H&E E q u i p me nt $74,230, MMC Materials $23,626.08, the law f

irm $72,348.20, and the other nongarnishor creditor $35,634.81. 1 The court cited its desire f

or an equitable solution. ¶8. Bar-Til appeals, and both H&E Equipm ent and MMC Materials cross-appeal.

1 T h e rig h ts o f th is cred ito r are n o t d i scu ssed in th is o p in io n b ecau se h e d o es n o t h av e a w rit o f g arn ish m en t attach ed to th is j u d g m en t. T h is cred ito r d id n o t p articip ate in th is ap p eal. 3DISCUSSION

I. Whether the attorney ’s charging lien has priority . ¶9. A chancel l o r ’ s f

i n d i ngs will be overturned on appellate r eview if we f ind that the chancellor was m a nif

e stly w rong or clearly erroneous, or applied an incorrect l egal standard. Miller v. Pannell , 815 So. 2d 1117, 1119 (¶9) (Miss. 2002). All of the parties agree that the chancellor erred as a m atter of l aw in granting each party in v o l v e d a portion of the m oney rather than determ ining the order of descending priority

. ¶10. Mississippi has long recognized an attorney ’s right to have a lien on j udgm ents and decrees procured through an attorney ’s ef f orts on behalf o f h i s c l i e nt. An attorney has a “param ount lien on the m oney d ecree wh i ch h e [ has] obtained.” C ollins v. Schneider , 187 Miss. 1, 1 9 2 So. 20, 23 (1939). “[ A]n attorney ’s lien o n judgm ents and decrees obtained by [ him ] f or f ees on account of services rendered, belongs to the f a m ily of im

p lied com m on law liens, and is f

irm ly engraf

ted o n the c omm on law.” Id

. A c h ar g i n g l ien attaches when the attorney d oes “successf

ully pursue the [ l a w s uit] to conclusion and obtain a f inal j udgm ent f rom which there [ is] no a

ppeal.” Tyson v. M

oore , 613 So. 2d 8 17, 8 26 (Miss. 1992). At that point, “[ the attorney ’s] entitlem ent to a f ee is vested.” In Collins , the Mississippi Suprem e Court held that the attorney had a priority lien on f unds hel d in the lower court’s register where “[ t ]he evidence conclusively show[ ed] that nothing would h ave been recovered on the original cause of action

. . . h ad it not been f or [ the attorney ’s] labor, zeal[ ,] and skill in the investigation and vigorous prosecution of that suit to a successf ul conclusion.” Collins , 192 So. at 22.

4¶11. In Indianol a T r a c t o r Co
. v
. T

a n k e s l ey , 3 37 So. 2 d 705, 7 06 (Miss. 1976), the
M i s s i ssippi S uprem e Court af f irm ed a trial court’s acknowledgm ent of a p l a i n t i f f’ s a t t o r n e y ’ s lien on the proceeds of a successf ul garnishm ent action

. I n o r d e ring disbursem ent of the judgm ent, the law f

i rm was listed f

irst in priority

. Id

. The court c ited to Chattanooga Sewer Pipe W orks v. Dumler , 153 Miss. 2 7 6, 120 So. 2d 450, 453 (1929), in w hich the Suprem e Court reiterated that “[ i ]t has been unif orm l y held by this [ C ]ourt that an attorney has a lien

on the f unds of his client f

or the services rendered in the proceeding b y which the m oney was collected.” ¶12. Our appellate courts have noted since 1939 the absence in Mississippi of a “statute f ixing or r egulating the lien of an attorney , or the e nf orcem e nt thereof

. ” Collins , 192 So. at 22. Consistent with com m on-law principles, m ultiple states statutorily m andate the priority of a t t o r ney ’s f

ees, including Oregon, New York, Calif ornia, Arkansas, Massachusetts, Alabam a, and Georgia. For exam ple, Alabam a’s statute provides: Upon actions a nd judgm ents f or m oney , [ attorney s] shall have a lien superior to all liens but t ax liens, and no person shall be at liberty to satisf y the action or j u dgm ent, until the l ien or claim of the attorney f or his or her f

ees is f ully satisf ied; and a ttorney s-at-law shall have the sam e right and power over action or judgm ent to enf

orce their liens a s their c l i e n t s h a d or m a y h ave f or the am ount due thereon to them

. Ala. Code § 34-3-61(b). These statutes codif y the e quitable principle l o n g r e c ognized at

com m on law that attorney s deserve pay m ent f or their successf

ul services. The United States Court of Appeals f

or the Fif th Circuit, apply ing Mississippi law, held in A merican Fidelity that one of the rationales f or not granting a law f

irm priority to retainage f unds was that the law f irm ’ s services had not been the cause of the release of the f unds, theref

ore resulting in

5no injustice in not giving the law f irm priority

. W e have the opposite s i tuation a t h and. Here, the service s o f the law f irm —including seven y ears’ representation and over $16,000 in expenses—directly

resulted in the judgm ent against Superior Asphalt. ¶13. Garnishees have the statutory right to com pel interpleader. Miss. Code A nn. § 11-35- 41 (Rev. 2004). This right protects the garnishee f rom double liability on the sam e j udgm ent. The charging lien, p r o t e c t i n g the attorney ’s right to the f r uits of h is labor, and the right to interplead, protecting the garnishee f rom double liabil i t

y , s hould not intersect with each other in s uch a way that f

r ustrates one or the other right. If we were to adopt the approach that the

c ontingency is not triggered in this circum stance, then practically

— or rath e r , im p ractically

—a plaintif

f’s attorney working f

or a contingency f

e e would need to research standing garnishm ent claim s in all e i g h t y -two Mississippi counties prior to determ ining whether to a ccept a c ase. A n y c a s e t h at m ay result i n an i nterpleader m ay be too risky to
pursue. A s the Mississippi Suprem e Court explained in 1939, “it would b e m ost inequitable and unjust f

or [ the other claim ants to the judgm e nt] to be allowed to ‘ride f ree’ o n the f

acts of this case.” Collins , 192 So. at 23. ¶14. W e also n ote that t h e t h i r d

- p a rty c r editors can continue to pursue collection of any

rem aining f

unds o wed them pursuant to their respective j udgm ents against Bar-Til. But as
to the l aw f

irm , if the charging lien has not attached and does not have priority , the law f irm

w i l l o nly receive f

or its successf

ul services what—if any thing—is lef

t a f ter all o f t h e garnishors have taken the f i rst bite at the interpled f

unds. ¶15. Here, the m onies would not b e a v a i l a b l e f or distribution t o the garnishors had not

6B a r - T i l’s right t o the judgm e nt f irst vested. S uperior Asphalt surrendered the m oney i n satisf a ction of the judgm ent against it, with no f urther right of appeal. W e f ind that Superior Asphalt’s deposit of the f

unds into the registry of the court, consistent with its right to protect itself f rom double liability , did not prevent the law f irm ’s charging lien f

rom attaching to the interpled f

unds. The law f

i rm is f i rst in priority

. ¶16. As to priority b etween H&E Equ i p m e n t a n d M M C M a t e r i a l s , M MC Materials
p r o p e r l y c o n c e d e s t

h a t H & E E q

u i p m ent has priority

. Even though M MC Materials’ j udgm ent against Bar-Til w as o b tained f irst in 2008, priority here is governed by our g arnishm ent
statutes. Mississippi Code Annotated section 1 1-35-24(1) (Rev. 2004) p rovides in part that

“ [ w]here m ore than o ne garnishm ent has been i ssued a gainst an em ploy ee o f a garni s h e e , such garnishee s hall com ply w ith the g a r n i shm ent with which he was f irst served.” H&E Equipm ent w as f

irst to serve Superior Asphalt w ith a w rit of garnishm ent r elated to a ny f unds owed by Superior Asphalt to Bar-Til. II. The chancery court had jurisdiction to a ccept t he interpled funds, and Bar-Til’s attorney ’s fees and ex penses w ere reasonable. ¶17. Bar-Til arg u e s t h a t t h e c h a n c ery court did not have the jurisdiction t o accept the i n t erpled f

unds because at the tim e the f unds were interpled, Bar-Til’s appeal on t h e i s s u e

o f p u n i t ive dam ages was still p e nding. W hen an appeal is taken, the lower court loses “authority to a m end, m odif y , or reconsider its judgm ent.” C orp. Mgnt. Inc. v. Greene Cty. , 23 So. 3d 454, 460 (¶13) ( Miss. 2009); see a lso M.R.A.P. 8. However, “[ w]hen an a ppeal has no supersedeas bond, a party m a y execute on the judgm ent.” Corp. Mgnt , 23 So. 3d at 460 (¶13).

7¶18. Superior Asphalt’s repe a t e d mo t i o n s t o i n terplead the f unds were not requests to “am end, m odif

y , or reconsider” the court’s judgm ent. Rather, it m erely sought to escrow a j u d g m ent that had n ot been stay ed by supersedeas. In Mississippi, a party is n ot liabl e f o r p o s t

- j u dgm ent i nterest af

ter im pleading pay

m ents into the registry of the court. Gayden v. Kirk , 2 0 8 Miss. 283, 44 So. 2d 410, 411-12 (1950) (holding that a “judgm ent will be corrected so as to exclude theref rom any interest upon [ an] im pleaded f und”). W e theref

ore f ind that the chancery court h ad authority to accept the interpled f unds, a nd that Bar-Til was
not entitled to additional p ost-judgm ent interest once the f unds were interpled. In f act, it would be inappropriate to perm it a victorious plaintif f t o d e l i b e r a t e ly dodge tender of a judgm ent f

or the sake of

increasing post-judgm ent interest. ¶19. H&E Equipm e nt argues that the law f irm ’s expenses and f

orty -percent contingency f ee are unreasonable. Attorney ’s f ees m ust be reasonable, w hether contracted f or or arising
out of a com m on-law c harging l i e n . As the Mississippi Suprem e Court stated when determ ining distribution of judgm ent f unds in Chattanooga Sewer Pipe W ork s , 120 So. at 453, “The [ plaintif

f ] had a right to m ake this contract f or a c ontingent f

ee, a n d there is nothing in th e r e c o r d t o show

. . . that it was unreasonable or unconscionable, and we are theref ore of the opinion that these attorney s h ave a param o u nt lien on the f unds f or [ the

am ount contracted f

or]. ” Id

. ¶20. On the f

acts of this case, we do not f ind grounds in the r ecord to support that the f ee

or expenses are unreasonable. A f o r t y - p e r c e n t c o nt i n g e n c y f

ee is not i nherently unreasonable, and sim ilar f

ees have been af

f irm e d. See Koehring Co. v. Hyde Constr. Co. , 236 S o. 2d 377,

8387 (Miss. 1970). This case took seven y ears to l itigate, and the record contains a n item ized

breakdown of the $16,254.57 e xpenses incurred over the seven y ear s . B a r - T i l has not challenged the reasonableness of the f ee i t contracted f

or, and the law f

irm did n ot c harge an additional f

e e f or the appeal it m ade to this Court. This issue is without m erit.

CONCLUSION ¶21. On this set of f

acts, we d e term ine that the contingency was triggered, and that the law f irm ’s charging lien has priority over the third-party garnishors. The m onies were interpled

as the direct result of the l aw f irm ’s services, and the judgm ent was declared satisf i ed in f ull.
T h e law f

irm has f

irst p riority and is entitled to withdraw f r om the i nterp l e d f

u n d s $98,590.51, which represents $16,254.57 in expenses and f o rty percent of the jud gm ent. Then, H &E Equipm ent, second in priority , is e n t i t l e d to withdraw f rom the rem aining interpled f

unds up to the am ount on the f ace o f its writ of garnishm ent. MMC Materials, as third in p r iority af

ter H &E Equipm ent, is then e ntitled to withdraw f rom t h e rem aining portion of the interpled f

un ds up to the am ount o n the f a ce of its writ of garnishm ent. 2 W e theref ore reverse and rem a nd f

o r f urther proceedings consistent with this opinion. ¶22. THE JUDGMENT OF THE HINDS COUNTY CHANCERY COURT, FIRST JUDICIAL DISTRICT, IS REVERS E D , A ND T HIS CASE IS REMANDED FOR F U R T H E R P R O C E E D I N G S C O N S I S T E N T W I T H T H I S O P INI O N . A L L C O S T S O F T H IS APPEAL A RE ASSESSED ONE-HALF TO THE APPELLANT/CROSS
APPELLEE AND ONE-HALF TO THE APPELLEES/CROSS-APPELLANTS. LEE, C .J., IRVING AND GRIFFIS, P.JJ., BARN E S , I S H E E , C ARLTON, FAIR AND W ESTBROOKS, JJ., C ONCUR. WILSON, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.

2 A s d i scu ssed at o ral arg u m en t in th is case, th is C o u r t a n d th e p arties are u n aw are w h eth er th e in terp led f

u n d s h av e b een k ep t b y H in d s C o u n ty in an in t erest-b earin g acco u n t.

9