IN THE SUPREME COURT OF MISSISSIPPI

NO. 98-CA-00027-SCT

IN THE MATTER OF THE ESTATE OF NANCY A. JOHNSON, DECEASED: BOB RICH

AS CO-CONSERVATOR OF PAULINE RICH

v.

LLOYD L. MOORE, RALPH SEXTON, AND DANNY LINDSEY

DATE OF JUDGMENT: 10/27/1997

TRIAL JUDGE: HON. JOHN C. ROSS, JR.

COURT FROM WHICH APPEALED: TISHOMINGO COUNTY CHANCERY COURT

ATTORNEY FOR APPELLANT: DUNCAN L. LOTT

ATTORNEY FOR APPELLEES: LLOYD L. MOORE

NATURE OF THE CASE: CIVIL - WILLS, TRUSTS AND ESTATES

DISPOSITION: REVERSED AND REMANDED - 3/25/1999

MOTION FOR REHEARING FILED: 4/7/99

MANDATE ISSUED: 5/20/99

EN BANC.

SULLIVAN, PRESIDING JUSTICE, FOR THE COURT:

STATEMENT OF THE CASE

¶1. This is an appeal from the "Opinion and Judgment" rendered by Honorable John C. Ross, Jr.,

Chancellor of the Chancery Court of Tishomingo County, Mississippi, involving the Estate of Nancy A.

Johnson, deceased. The gross estate of Ms. Johnson was determined by the court to be $3,101,804.34,

and the beneficiaries of her estate were five heirs at law.

¶2. On September 18, 1997, Ralph Sexton (hereinafter "Sexton"), the administrator of Ms. Johnson's

estate, through his attorney, Lloyd Moore (hereinafter "Moore"), filed an Accounting and Petition to

Confirm Sale of Property, Personalty, and Coins and for Partial Disbursement of Assets. Contained in this

petition was a request for administrator's fee, attorney's fee and accountant's fee.

¶3. Bob Rich, co-conservator of Pauline Rich, one of the heirs at law, objected to these fees. On the 17th

of October, 1997, this case was set for a hearing. Four of the five heirs at law either executed "Joinder and

Waiver of Process and Entry of Appearance" forms or chose to attend the hearing.

¶4. After receiving testimony and evidence at the hearing, the chancellor took the motion under advisement

and entered his two-page Opinion and Judgment of the Court on October 27, 1997, denying the objections
of Rich and allowing Sexton an administrator's fee of $108,563.15, Moore an attorney's fee of $108,

563.15 and accounting fees to Danny Lindsey of $30,000. Aggrieved by the trial court's decision, Rich

perfected this appeal raising the following issue:

I. WHETHER THE CHANCELLOR ERRED IN HIS AWARD OF ADMINISTRATOR'S,

ATTORNEY'S AND ACCOUNTANT'S FEES?

Rich requests that this Court set aside the chancellor's award and assess a reasonable administrator's,

attorney's and accountant's fees based upon the proof presented to the court below.

STATEMENT OF THE FACTS

¶5. Nancy A. Johnson died intestate on October 18, 1996, and Letters of Administration were issued to

Sexton as Administrator on November 13, 1996. A Notice to Creditors was filed on November 13, 1996,

and the usual claims were made against the estate from its inception in November of 1996 until this petition

was heard in October of 1997. Moore was employed as attorney for the estate by Sexton and handled

those duties from the inception. Danny Lindsey, C.P.A., was employed as the accountant by Sexton.

Lindsey had prepared Ms. Johnson's income tax returns in the past and had knowledge of her finances.

Also, Lindsey had prepared the income tax returns of Ms. Johnson's father and mother and their estate tax

returns.

¶6. Sexton, Moore, and Lindsey were charged with the responsibilities and duties of administering a $3,

101,804.34 gross estate with the goal of preserving as much of the estate's assets as possible for

distribution to the five heirs at law.

¶7. Approximately twelve (12) months from the time Temporary Letters of Administration were issued,

Sexton, by and through Moore, filed an Accounting and Petition to Confirm Sale of Realty, Personalty, and

Coins and for a Partial Disbursements of Assets.

¶8. The petition listed the five (5) heirs at law, and copies were included of letters sent to each stating that

the hearing would be held on the 3rd of October, 1997; that Notice to Creditors had been published

according to law; that all known creditors were given notice to probate their claims; that the gross estate

was subject to federal and state estate taxes; no final closing letters had been received from the IRS or the

Mississippi Tax Commission; that the personal property of the estate was sold at public auction for a net

amount of $68,966.14; the residence was sold for $61,500; that the coin collection was sold for $535.38;

and of which Sexton asked the chancery court to ratify and confirm as fair and equitable.

¶9. The petition further requested that the court allow a distribution from the estate of 6,000 shares of

Abbott Laboratories common stock and $20,000 to each of the five heirs at law. Attached to the petition

was a detailed accounting of the receipts and disbursements that accounted for all the assets received into

the estate and for all expenditures made on behalf of the estate. Also contained in the petition was a request

for administrator's, attorney's and accountant's fees totaling $247,126.30.

¶10. Executing Joinder and Waiver of Process and Entry of Appearance forms were Abe Johnson, Linda

Searcy as conservator for the person of Pauline Rich and co-conservator for the Estate of Pauline Rich,

Wesley Neil Johnson, and John W. Sartain. Thus, they entered their appearance, waived any and all

process and joined in the petition which requested that the accounting and sale of assets be confirmed and

there be a partial disbursement of estate assets.
¶11. On October 1, 1997, only two days before the hearing, Rich obtained a continuance stating that he

and his attorney would be out of state and unable to attend. The hearing was reset for October 17, 1997,

with each heir at law being notified of the new date.

¶12. At the hearing, stipulated facts, testimony, evidence and exhibits were presented to the chancellor.

Sexton oversaw the detailed inventory of the personal property located at Ms. Johnson's residence. He also

collected the mail, separated the bills to deliver to the attorney, and did all of the banking. His position as

administrator required Sexton to leave work during the day to handle estate affairs which included: meeting

with the attorney and CPA; settling insurance claims, inventorying the lock box ; assisting in the funeral

arrangements for Ms. Johnson and; paying numerous bills of the estate. Furthermore, Sexton took part in

the appraisal and sale of a coin collection, sale of the residence and the auction of the personal property of

Ms. Johnson. Sexton was involved with the tax issues of the estate and their payment and the selling of

stock belonging to Ms. Johnson in order to bring liquid assets into the estate and to pay taxes. When asked

about compensation as administrator, Sexton testified that he considered a fee of three and one-half percent

of the gross estate as being a fair fee.

¶13. To support his testimony, Sexton submitted a detailed time sheet reflecting at least eighty-eight hours

served as the administrator of the estate. The time sheet was admitted into evidence, but does not reflect the

time served as administrator since October, 1997.

¶14. Charlene Fancher, Office Manager for Attorney Moore, had been involved in the administration of

Ms. Johnson's estate since the beginning. She prepared letters to creditors, assisted in filing and paying all

duly probated claims, executed releases against the estate, made deposits for monies received for the

estate, reconciled monthly bank statements, corresponded with the heirs, helped prepare the coin inventory

and savings bond inventory, and showed Ms. Johnson's home to prospective buyers. Fancher and Moore's

office were actively involved in transferring Ms. Johnson's stock to the estate and heirs at law, with the

actual transfers being made through licensed and qualified brokers. Fancher made no personal claim against

the estate, but submitted a time sheet to show the number of hours she expended on estate matters as an

employee of Moore. These time sheets were admitted into evidence showing approximately 45 hours

expended by her on estate matters.

¶15. Lindsey handled the estate tax form and sought a fee of $30,000 for his work. Lindsey estimated that

he had worked approximately 105 hours on preparing the estate tax returns. Lindsey stated that he

prepared the final 1996 personal income tax returns, the estate tax returns, the 1996 fiduciary tax returns,

and was gathering information to include on the 1997 fiduciary tax returns. Lindsey further testified that he

would be filing the 1997 fiduciary tax returns and that if the estate was not completely closed by December

31, 1998, he would be filing fiduciary tax returns for 1998.

¶16. Lindsey noted that it would probably be tax advantageous to allow estate income to pass directly to

individual heirs at law, with a possible savings to the estate of $50,000. Furthermore, Lindsey testified that

he saved the estate approximately $223,000 in taxes. The tax savings were due to a credit that Ms.

Johnson's estate was allowed to claim for the estate taxes that had been paid on her father's previous return.

The testimony of Lindsey reflected time spent as of the hearing date, but does not reflect the time spent as

the accountant since October of 1997.

¶17. Harold S. Jackson, an attorney who had practiced in Tishomingo County since August of 1971 and
had handled several estates, heard the testimony and proof presented to the chancery court, looked over

the file, and believed the court file reflected a lot of work and time had been invested in the administration of

the estate. Jackson testified that a standard and customary fee for an attorney in Tishomingo County was

$85 to $135 per hour, and he further agreed a fee for handling an estate should be based upon the

complexity of the matter handled, the attorney's experience, time expended, difficulty of work, skill

required, responsibility, amount of estate, and promptness of service. Jackson further noted that it was his

understanding that no statutory minimum or maximum fee existed and that the amount awarded as fees was

solely in the discretion of the court. Jackson stated that given the amount of complexity, the work and the

duties performed as evidenced by the entries in the court file, he believed a fee of 3 1⁄2 % for the

administrator and 3 1⁄2 % for the attorney was reasonable. A time sheet prepared by Attorney Moore as to

the hours expended by him in handling the estate was admitted into evidence during Jackson's testimony; it

totaled approximately 85 hours.

¶18. Rich and Linda Searcy are the children of Pauline Rich, who is one of the five heirs at law of Ms.

Johnson's estate. They are co-conservators for their mother's estate. Additionally, Ms. Searcy is

conservator of the ward, Pauline Rich, and is responsible for her day-to-day care and maintenance. Rich

testified that he was in court to protect his mother's interest in the estate of Ms. Johnson. He stated that he

had a lawyer who would see to it that everything was done concerning his mother's estate.

¶19. Joyce Rich, Rich's wife, was called and questioned about the work performed by her husband in the

conservatorship of Pauline Rich. She stated that Linda Searcy's attorney was supposed to do everything

and thus, her husband did not have to do anything because the lawyer was paid to do it.

¶20. At the conclusion of the hearing the matter was taken under advisement with the court stating that it

needed the opportunity to review the court file and various exhibits entered at the hearing.

¶21. An Opinion and Judgment of the Court was rendered on October 27, 1997, granting to Sexton and

Moore fees of $108,563.15 and fees to the accountant, Lindsey, of $30,000. The Opinion and Judgment

stated in part that:

Based upon the proof presented to the Court, the Court finds that the objection to the request filed by

Bob Rich as co-conservator of Pauline Rich is without merit and the same is denied. It is significant to

note that Linda Searcy as the other co-conservator of the estate (and also the conservator of the

person) of Pauline Rich, does not object to the petition of the administrator. The proof established

conclusively that based upon the complexity of the estate, the numerous transactions involved with the

sale of personalty and realty, that the fees are reasonable and are hereby approved.

¶22. Rich filed a Motion for Stay of Judgment and to Set Supersedeas Bond Pending Appeal on October

29, 1997, and the chancery court entered an order requiring Rich to post a supersedeas bond in the amount

of $61,781.89, which represented one hundred and twenty-five percent of $49,425.26, the amount in

controversy. On December 2, 1997, the chancery court issued a supplemental order reducing the amount

of the supersedeas bond to $12,356.63. On December 19, 1997, the chancery court ordered that the

conservatorship of Pauline Rich was not required to post a Supersedeas Bond, but that Bob Rich , as a coconservator of his mother may individually perfect an appeal and post a supersedeas bond as it pertains to

this estate. On December 23, 1997, Rich filed his Notice of Appeal and his Appeal Bond to Supreme

Court of Mississippi with Supersedeas.
DISCUSSION OF THE ISSUES

I. WHETHER THE CHANCELLOR ERRED IN HIS AWARD OF ADMINISTRATOR'S,

ATTORNEY'S AND ACCOUNTANT'S FEES?

¶23. Rich asserts that the chancellor erred in awarding $ 108,563.15 to both Attorney Moore and

Administrator Sexton, and $30,000 to Accountant Lindsey. Rich contends that Sexton and Moore sought

fees based upon a percentage of the gross estate and sought to justify their fees based upon the value of the

estate rather than the complexity of and hours expended in handling the estate. He further states that the

chancellor abused his discretion in that he ignored the other facts which weighed heavily against the amount

of fees given to Sexton and Moore and instead approved their request based only upon a percentage of the

gross estate - 3 1⁄2 % each. This Court agrees. While fair compensation should be given for the work done

in administering an estate and protecting the interests of the heirs, attorney and administrator fees amounting

to $1,200 an hour and payment of an accountant at a rate of $300 an hour is clearly excessive in relation to

the effort expended.

¶24. This Court will reverse a chancellor only when he is manifestly wrong. Hans v. Hans, 482 So. 2d

1117, 1119 (Miss.1986); Duane v. Saltaformaggio, 455 So. 2d 753, 757 (Miss.1984). A chancellor's

findings will not be disturbed unless he was manifestly wrong, clearly erroneous or an erroneous legal

standard was applied. Tinnin v. First United Bank of Miss., 570 So. 2d 1193, 1194 (Miss.1990);

Bell v. Parker, 563 So. 2d 594, 596-97 (Miss.1990). Where there is substantial evidence to support his

findings, this Court is without the authority to disturb his conclusions, although it might have found otherwise

as an original matter. In re Estate of Harris, 539 So. 2d 1040, 1043 (Miss.1989). Additionally, where

the chancellor has made no specific findings, we will proceed on the assumption that he resolved all such

fact issues in favor of the appellee. Newsom v. Newsom, 557 So. 2d 511, 514 (Miss.1990). The

chancellor's decision must be upheld unless it is found to be contrary to the weight of the evidence or if it is

manifestly wrong. O.J. Stanton & Co. v. Mississippi State Highway Comm'n, 370 So.2d 909, 911

(Miss.1979). Therefore, in order to be successful on appeal, Rich is saddled with the burden of establishing

affirmatively and clearly that the chancellor's award of fees to the administrator, attorney and accountant is

manifestly wrong and is not supported by substantial evidence. Watts v. Lawrence, 703 So. 2d 236, 237

(Miss. 1997).

¶25. The chancellor has the duty to review the reasonableness of fees charged to the estate. Moreland v.

Riley, 716 So. 2d 1057, 1062 (Miss. 1998).

Mississippi case law has long held, "The statute vests in the sound discretion of the court in which the

administration is pending the duty to fix the fees of the attorney if it is of the opinion that the service

was necessary and had been rendered in good faith."

Scott v. Hollingsworth, 487 So. 2d 811, 814 (Miss. 1986) (quoting Brown v. Franklin, 166 Miss.

899, 903, 145 So. 752, 753 (1933)). Additionally, Uniform Chancery Rule 6.12, provides in relevant part:

In such cases, the amount allowed as attorney's fees will be fixed by the Chancellor at such sum as

will be reasonable compensation for the service rendered and expense incurred without being bound

by any contract made with any unauthorized persons. If the parties make an agreement for a

contingent fee the contact or agreement of the fiduciary with the attorney must be approved by the
Chancellor. Fees on structured settlements shall be based on the "present cash value" of the claim.

¶26. Furthermore, Miss. Code Ann. § 91-7-299 (1994), which governs the allowance given to an

administrator, reads in part:

The court shall allow to an executor or administrator, as compensation for his trouble, either in partial

or final settlements, such sum as the court deems proper considering the value and worth of the estate

and considering the extent or degree of difficulty of the duties discharged by the executor or

administrator; in addition to which the court may allow him his necessary expenses, including a

reasonable attorney's fee, to be assessed out of the estate, in an amount determined by the court.

¶27. In determining what constitutes a reasonable fee, we have said a chancellor should consider:

(1) The time and labor required, the novelty and difficulty of the questions involved, and the skill

requisite to perform the legal service properly;

(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will

preclude other employment by the lawyer;

(3) The fee customarily charged in the locality for similar legal services;

(4) The amount involved and the results obtained;

(5) The time limitations imposed by the client or by the circumstances;

(6) The nature and length of the professional relationship with the client;

(7) The experience, reputation and ability of the lawyer or lawyers performing the services; and

(8) Whether the fee is fixed or contingent.

Moreland, 716 So. 2d at 1062 (quoting Dynasteel Corp. v. Aztec Industries Inc., 611 So. 2d 977,

986-87 (Miss. 1992).

¶28. In the present case, Nancy Johnson left an estate of $3.1 million. Though substantial in size, it was not

a complicated estate, with the bulk of the assets comprised of Abbot Laboratories common stock and an

IRA, the division or liquidation of which was handled easily by a reputable brokerage firm. The work

performed by Sexton and Moore resulted in a public auction and sale of personalty which generated $68,

966.14, and the private sale of the home which netted $61,500. The record also indicates that Ms. Johnson

lived modestly and rarely bought on credit, the very few claims against the estate were small, uncomplicated

matters largely dealing with her final illness. The testimony by Sexton and the time sheet submitted by

Moore clearly reflect that there were no complex issues involved in this case, and there was no litigation

required concerning estate business or estate matters. Furthermore, the accountant had handled Ms.

Johnson's financial affairs in the past, as well as those of her parents, from who she inherited the bulk of her

assets. Thus, the executor, attorney and accountant had ready access to information which made their jobs

considerably easier.

¶29. A local attorney who had handled several large estates testified that attorneys in Tishomingo County

generally earn between $85 and $135 an hour. Attorney Moore entered a time sheet showing that he
expended 85 hours working on the estate. That amounts to over $1,200 an hour in compensation. Even

factoring in the 45 hours his office manager expended on matters related to the estate, Moore earned more

than $800 an hour. The administrator, a maintenance man at a local factory, also earned a little over $1,200

an hour for picking up the mail and other matters associated with his cousin's estate (he stated that he put in

approximately 88 hours). The accountant, Lindsey, who estimated that he spent 105 hours preparing the

estate tax returns, earned a little under $300 an hour. After reviewing the eight enumerated factors that have

a bearing on the reasonableness of an attorney fee, this Court finds that the attorney's and administrator's

fee award, along with the accountant's fee award, was an abuse of discretion and was unreasonable in light

of the time consumed and the simplicity of the settling of the estate.

¶30. We observe that some of the complications that arise in the awarding of attorney's fees can be avoided

or minimized by attorneys merely stating their basic rate in a written contract approved by the administrator

or chancellor, with notice provided to the heirs. This would promptly establish an understanding as to the

fee. Indeed, Rule 1.5(b) of the Mississippi Rules of Professional Conduct provides that when an attorney

"has not regularly represented the client, the basis or rate of the fee shall be communicated to the client,

preferably in writing, before or within a reasonable time after commencing the representation." (emphasis

added). It is sufficient to state that the basic rate is an hourly charge or a fixed amount or an estimated

amount or a percentage of the estate, or to identify the factors that may be taken into account in finally fixing

the fee. When developments occur during the representation that render an earlier estimate substantially

inaccurate, a revised estimate should be provided to the client. This would dispel the question concerning

the use of a percentage fee as the heirs approval of this type of fee would be required. A written statement

concerning the fee will significantly reduce the possibility of a misunderstanding which would result in

litigation.

CONCLUSION

¶31. A consideration of the totality of circumstances in this case indicates that the fees set by the Court for

the administrator, attorney and accountant are simply too high, and that there is a paucity of evidence

supporting the same.

¶32. In the absence of an express contract by all parties, or other evidence in support thereof, $1200.00

per hour for the attorney (or $800.00 for that matter) and $1200.00 per hour for the administrator are

excessive. The considerably smaller accountant's fee may be more nearly correct, but should also be

reevaluated in accordance with this opinion.

¶33. The judgment of the Tishomingo County Chancery Court is reversed and this case is remanded for

further proceedings consistent with this opinion.

¶34. REVERSED AND REMANDED.

PRATHER, C.J., PITTMAN, P.J., BANKS, McRAE, SMITH, MILLS AND WALLER, JJ.,

CONCUR.