Dissent of the Year

My award for Dissent of the year goes to Justice Chamberlin.  In Hatfield v. Deer Haven Homeowners Association, 2016-CP-00820-SCT (September 14, 2017), Justice Chamberlin says:

¶33. In response to the majority, I feel compelled to swoop in and kill two birds with one stone. I am as happy as a lark to join the flock in affirming the chancellor in this case. However, I must also spread my wings and dissent in part because I fear that the majority’s award of $25,125 in appellate attorney’s fees against a pro-se litigant—without any evidentiary support in our record for the award—could become the goose that laid the golden egg. It doesn’t take eagle eyes to see the problem with this approach. Therefore, I must cry “fowl.”

¶34. The majority’s caution that “the better practice . . . would be for the party seeking attorney fees on appeal to file a motion in this Court, supported by affidavits and time records that establish the actual fee expended on appeal” is correct. (Maj. Op. at ¶ 30). As a matter of fact, it is so much better that we should require it.

¶35. Our Court’s past directives on awards of attorney’s fees have been clear: “The court may not judicially note what is a reasonable fee and it certainly may not merely pull a figure out of thin air. Rather, the party entitled to recover a reasonable fee must furnish an evidentiary predicate therefor.” Key Constructors, Inc. v. H & M Gas Co., 537 So. 2d 1318, 1325 (Miss. 1989). Key found “in no uncertain terms” that “‘reasonable attorney[’]s fees’ require[d] proof.” Id. There must be an evidentiary predicate. Sanford v. Jackson Mall Shopping Ctr. Co., 516 So. 2d 227, 230 (Miss. 1987).

¶36. I see no reason why an appellate award should be treated any differently than a trial award. While judicial economy might be served using this method on small awards or in circumstances where justice requires, the facts of this case present neither situation. I would find that appellate counsel, just like trial counsel, should have to “furnish an evidentiary predicate []for” an award of attorney’s fees. Key, 537 So. 2d at 1325.

¶37. Others may think my position bird-brained, but I sincerely believe that, once the chickens come home to roost, this opinion will be a feather in my cap. Therefore, I dissent as to this issue.

RANDOLPH, P.J., AND COLEMAN, J., JOIN THIS OPINION.

(Emphasis added).  Justice Chamberlin is certainly a colorful addition to the appellate courts.

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