Brewer v. Lacefield
In Brewer v. Lacefield, 301 Ark. 358, 784 S.W.2d 156 (1990), a personal representative had engaged counsel to pursue a wrongful-death action which resulted in $ 114,630.46 being available for distribution. From that amount, the personal representative (widow of the decedent) proposed that her counsel be reimbursed for litigation expenses ($ 1,916.87) and be paid a fee pursuant to their contingent fee contract ($ 37,567.45). See id
Independent counsel engaged by the decedent's former wife to represent the children of the decedent filed a separate petition for distribution and objected to the personal representative's petition because it made no allowance for attorney's fees to be paid to the children's independent counsel.
The probate court entered an order of distribution as proposed by the personal representative, and the former wife of the decedent (Debra Brewer) appealed. See id.
The supreme court affirmed that part of the probate court's decision approving the distribution proposed by the personal representative. Chief Justice Holt, writing for the court, emphasized that Ark. Code Ann. 16-62-102(b) provides that every wrongful-death action shall be brought by and in the name of the personal representative of the decedent, or by the heirs at law if there is no personal representative, and that the wrongful-death code provisions do not create an individual right in any beneficiary to bring suit. See id. (citing Cude v. Cude, 286 Ark. 383, 691 S.W.2d 866 (1985)).
In Brewer v. Lacefield, the deceased was survived by three heirs: his widow, and two children from a former marriage. The widow was appointed administratrix of the deceased's estate, and she hired two attorneys to pursue a wrongful-death action.
The children's mother also hired two attorneys to represent their interests in the lawsuit. The attorneys on each side had contingent-fee contracts to receive one-third of the proceeds from the action. From the proceeds available for distribution, the administratrix proposed that the attorneys for the estate receive one-third of the total as their fee, with the remainder, after deducting other expenses, to be divided equally between her and the two children.
The children's mother objected to this plan because it made no provision for the payment of fees to the children's attorneys. She contended that the children's attorneys should be paid out of the funds to be distributed to them and that the attorneys for the estate should receive their contingent fee only out of the sum recovered by the administratrix.
The trial court rejected this plan and entered an order in accordance with the proposal made by the administratrix. In affirming, the supreme court held that a probate court has no jurisdiction to award attorneys' fees for services rendered to individual beneficiaries of a wrongful-death action.
The court based its decision on the provisions of the wrongful-death code and the case law interpreting it that it is the duty of the personal representative, not the beneficiaries, to choose counsel to pursue a wrongful-death claim. Contrary to appellant's assertion here, the court did not hold that the proceeds from a wrongful-death action were of a special class exempt from the claims of attorneys who represent the individual beneficiaries.
The court merely held that the attorneys for individual beneficiaries were not entitled to consideration when the proceeds from a wrongful-death action are being distributed. As the court said, "the beneficiaries are free to select counsel to see that their interests are protected, however, they must bear this expense." Id. at 363.