Tuesday, April 9, 2013

Attorney's Fees on Appeal


Well, I finally decided to launch a blog.  I will be focusing on issues of interest in family law and litigation in Mississippi.   I have been working on several family law appeals recently and noticed an interesting issue in the case of Tatum v. Tatum, 2011-CV-1795 (decided December 11, 2012). 

This case has some interesting twists if you do much appellate work.  In Tatum, the husband appealed an order of the lower court granting the ex-wife attorney’s fees that she incurred on appeal plus interest.  The Court of Appeals had previously reversed the trial court’s order and asked the trial court to determine the amount of attorney’s fees the wife was due from the original divorce trial.  On remand, the chancellor set the amount of attorney’s fees due to the wife from the original trial and added the attorney’s fees the wife incurred on appeal along with interest.  Mr. Tatum appealed arguing that the chancery court lacked authority to award attorney’s fees incurred on appeal plus interest.

Justice Russell writing the opinion of the Court reversed and rendered on the issue of interest.  The Court noted that the original remand did not contain an allowance of interest and as such the chancery court had no authority to award the same.  However, the Court of Appeals noted that because they accessed the “costs” to Mr. Tatum from the original remand, the trial court had the authority to access the attorney’s fees incurred by Ms. Tatum on appeal.  No motion for rehearing was filed and a mandate has been issued on this case.

To me, this looks like a powerful tool on appeal to family law attorneys and anyone that does appellate work of any kind.  From my reading of the opinion, it appears that if costs are accessed against you that you are on the hook for the attorney’s fees incurred.  I would have been of the opinion as Mr. Tatum that they were not recoverable. 

I believe this case conflicts and/or overrules Harbit v. Harbit 3 So.3d 156 (Miss. App. 2009)which held that the term costs does not include attorney’s fees.  At some point, there will have to be some clarification on this issue but until then, this is good information to have when discussing appeals with your clients and potential issues that can arise. 

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