ROEDEL PARSONS BLACHE FONTANA PIONTEK PISANO v. STATE (2025)

¶1. In 2008, the former Attorney General of Mississippi desired to sue the national utility company Entergy Corporation and its subsidiaries/affiliated entities (Entergy) based on the electricity rates it charged in the State. To help prosecute the claims, the attorney general entered into a retention agreement with the Kilborn Firm. The Kilborn Firm subsequently entered into an agreement with Roedel Parsons Blache Fontana Piontek & Pisano (Roedel Parsons), a Louisiana law firm, agreeing to split any compensation and reimbursement earned by the Kilborn Firm under its agreement with the State. The Kilborn Firm is not a party in this case.

¶2. Following years of litigation, the trial judge granted Entergy's motion for summary judgment and dismissed the case against it with prejudice. The State chose not to appeal. Yet Roedel Parsons determined that it was entitled to a payment of $34,625,000 from the State. Roedel Parsons sued the State through the office of the attorney general, alleging breach of contract and seeking a declaratory judgment that it was a third party beneficiary under the State's retention agreement with the Kilborn Firm or, in the alternative, for unjust enrichment and quantum meruit recovery. The trial judge granted the State's Mississippi Rule of Civil Procedure 12(b)(6) motion to dismiss for failure to state a claim upon which relief could be granted. Roedel Parsons appealed the trial judge's decision. Finding no legal error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶3. On September 17, 2008, the former attorney general entered into a nonassignable, nontransferable retention agreement with attorneys Vincent Kilborn and David McDonald (the Kilborn Firm) to serve as special assistant attorneys general for the purposes of investigating, researching, and filing claims against Entergy regarding its electricity rates (the Entergy litigation). According to the agreement, “the Attorney General has determined that the Claims may include refunds, restitution, prospective relief (either through structured rebates, refunds or reduced rates), or any combination of refunds, restitution and prospective relief to the State of Mississippi (a ratepayer itself) and to the Mississippi commercial, industrial and residential ratepayers[.]” And “[t]he Attorney General has the sole authority to settle this litigation on behalf of the State of Mississippi and its citizens.”

¶4. The agreement outlined that the Kilborn Firm would be compensated for its services by a sliding-scale contingency-fee basis. The retention agreement provided that all litigation costs “shall initially be borne entirely by the undersigned attorneys,” however, the Kilborn firm would “be reimbursed from any gross recoveries ․” (Emphasis added.) In addition, the agreement unambiguously directed that “[i]n the event that no recovery is realized, the undersigned attorneys shall receive no compensation or reimbursement.” (Emphasis added.) Critically, the agreement plainly specified that “[w]ith the approval of the Attorney General, the undersigned attorneys may associate other attorneys, particularly in the field of utility law, at their own expense and at no cost to the State of Mississippi.” (Emphasis added.)

¶5. The Kilborn firm retained Roedel Parsons, which specialized in utility law. According to Roedel Parsons, the Kilborn Firm “agreed to split any fee earned under the Retention Agreement 50/50 with the Plaintiff Firm.”

¶6. In December 2008, the former attorney general on behalf of the State, along with the Kilborn Firm and Roedel Parsons serving as cocounsel, sued Entergy in the Hinds County Chancery Court. The State contended that Entergy's business practices were designed to “keep competitors out of its market in Mississippi and force its ratepayers to drastically overpay for power.” Entergy removed the case to the United States District Court for the Southern District of Mississippi. In 2019, after years of litigating in the federal court, the district court judge remanded the case back to the Hinds County Chancery Court. Entergy filed a motion for summary judgment, which the trial judge granted and dismissed the case with prejudice. The State chose not to appeal the trial judge's decision.

¶7. In 2020, Roedel Parsons sent the attorney general a letter demanding payment under the retention agreement between the State and the Kilborn Firm. Roedel Parsons contended that its assistance in prosecuting the Entergy litigation saved “Mississippi ratepayers hundreds of millions of dollars,” citing Entergy's decision to reduce its rates during the litigation. The attorney general reminded Roedel Parsons that the State did not recover in the case and that even if there had been a recovery, Roedel Parsons would still not be entitled to any compensation from the State, only from the Kilborn firm because Roedel Parsons was never a party to the retention agreement between the State and the Kilborn Firm.

¶8. In December 2022, Roedel Parsons filed suit against the State in the Hinds County Circuit Court, raising claims for declaratory judgment, breach of contract, unjust enrichment and quantum meruit recovery. According to Roedel Parsons, “[a]mong the claims developed by Plaintiff Law firm against the Entergy defendants was that, during the period 1998-2013, EMI [Entergy] relied heavily on three of its oldest and least efficient generating units ․” Roedel Parsons further pleaded that “[l]acking competition or any independent oversight of its generation practices (i.e., the increase and decrease of generator output to meet demand), [Entergy] was able to keep competitors out of its market in Mississippi and force its ratepayers to drastically overpay for power.”

¶9. Roedel Parsons contended that its prosecution of the Entergy litigation contributed to the decision of the United States Department of Justice's (DOJ) to investigate its activities. In support, Roedel Parsons presented a 2012 press release from the DOJ, which concluded that “[i]f Entergy follows through on its transmission system commitments ․ the Antitrust Division's concerns will be resolved.” According to Roedel Parsons, “the DOJ investigation, in turn, led to Entergy Corporation ․ joining the Midcontinent Independent System Operator, Inc., a regional transmission organization (‘MISO’) in December 2013.”

¶10. According to Roedel Parsons, “MISO (a) enables access by generation-owning third parties ․ to its member utilities’ (like [Entergy]) high-voltage bulk transmission systems to ensure open, non-discriminatory access, and (b) controls the output (dispatch) of the generating units of its member utilities (like [Entergy]) by sending price signals to such members.” The complaint alleged that MISO had authority to impose penalties on members who did not follow its pricing signals. Roedel Parsons contended that “[a]fter joining MISO, which now had independent oversight of [Entergy's] generating unit dispatch practices, the output of [Entergy's] old, inefficient ․ plants was reduced dramatically, with their output being replaced by ․ less expensive power from third parties ․”

¶11. According to Roedel Parsons, the former attorney general touted Entergy's decision to join MISO “as saving Mississippi ratepayers hundreds of millions of dollars.” In support, Roedel Parsons presented a 2017 news release that described Entergy's MISO membership as resulting “in total savings to Mississippi ratepayers of $118,000,000 for the prior 3-year period (2013-2016) ․”¹ Roedel Parsons alleged that the former attorney general's statements “are consistent with the ‘Common Fund Doctrine’ which is recognized in Mississippi.”  ² Accordingly, Roedel Parsons pleaded that “[b]y admissions from State-AG's Office ․ Plaintiff Law Firm has been successful in and contributing to the obtaining of hundreds of millions of dollars of ‘prospective relief’ or ‘reduced rates’ and/or a combination of refunds, restitution, and prospective relief to the State of Mississippi and its ratepayers.”

¶12. Accordingly, the complaint estimated that Entergy's membership in MISO from 2013 to 2028 would result in $500,000,000 in savings to Mississippi ratepayers. Roedel Parsons contended that under the contingent fee scale reflected in the retention agreement between the Kilborn Firm and the attorney general, the State owed $69,250,000 in attorneys’ fees to the Kilborn Firm with one half of the amount, $34,625,000, owed to Roedel Parsons pursuant to its alleged side agreement with the Kilborn Firm. The Kilborn Firm has not been named a party nor has it made an appearance in this litigation.

¶13. The State moved to dismiss the complaint under Mississippi Rule of Civil Procedure 12(b)(6) for failing to state a claim and additionally raised immunity under the Mississippi Tort Claims Act as to Roedel Parsons's equitable claims. The trial court granted the State's motion, declining to rule on the State's immunity as it found that Roedel Parsons failed to state a claim. Roedel Parsons appealed the trial judge's decision. Finding no legal error, we affirm.

STANDARD OF REVIEW

¶14. “An appellate court reviews de novo the grant or denial of a motion to dismiss under Mississippi Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted.” Moton v. City of Clarksdale, 367 So. 3d 979, 982 (Miss. 2023) (citing Webb v. DeSoto Cnty., 843 So. 2d 682, 684 (Miss. 2003)). “A motion brought under Rule 12(b)(6) is decided on the face of the pleadings.” Id. (citing Hartford Cas. Ins. Co. v. Halliburton Co., 826 So. 2d 1206, 1211 (Miss. 2001)). “The allegations in the complaint must be accepted as true, and the motion should not be granted unless it appears beyond a reasonable doubt that the plaintiff will be unable to prove any set of facts in support of his claim.” Jourdan River Ests., LLC v. Favre, 212 So. 3d 800, 802 (Miss. 2015) (citing Rose v. Tullos, 994 So. 2d 734, 737 (Miss. 2008)).

DISCUSSION

I. Whether the trial court erred by finding that Roedel Parsons was not a third-party beneficiary under the retention agreement between the State and the Kilborn Firm.

¶15. Roedel Parsons contends that the trial court erred by failing to accept its well-pleaded allegations as true when it found that Roedel Parsons was not a third-party beneficiary to the agreement.

¶16. The Court has held that

It is a general rule of the law of contracts that in order to maintain an action to enforce the breach of a contract, or to recover damages growing out of the breach, or for failure to carry out the terms of the contract, it is ordinarily a necessary prerequisite that the relationship of privity of contract exist between the party damaged and the party sought to be held liable for the breach of the contract.

Burns v. Wash. Sav., 251 Miss. 789, 171 So. 2d 322, 324 (1965) (citing Jones v. Miss. Farms Co., 116 Miss. 295, 76 So. 880 (1917)). One exception to this rule is that “[a] third person may sue on a contract made for his benefit between others to the consideration of which he is a stranger.” Id. This “third person” as described is known under the law as a third-party beneficiary.

¶17. For a third-party beneficiary to have a legally sufficient cause of action, however, the Court has held that

[T]he contracts between the original parties must have been entered into for his benefit, or at least such benefit must be the direct result of the performance within the contemplation of the parties as shown by its terms. There must have been a legal obligation or duty on the part of the promisee to such third person beneficiary. This obligation must have been a legal duty which connects the beneficiary with the contract. In other words, the right of the third party beneficiary to maintain an action on the contract must spring from the terms of the contract itself.

Id. at 325 (emphasis added) (citing 17A C.J.S. Contracts § 519(4) (1963)). Importantly, “[n]o right against the contract promissor or promissee is acquired by a mere incidental beneficiary.” Trammell v. State, 622 So. 2d 1257, 1260 (Miss. 1993) (citing Miss. High Sch. Activities Ass'n, Inc., v. Farris, 501 So. 2d 393, 396 (Miss. 1987)). “A third party beneficiary may sue for a contract breach only when the alleged broken condition was placed in the contract for his direct benefit.” Id. (emphasis added).

¶18. To determine whether a party possesses third-party-beneficiary status, the Court considers

(1) When the terms of the contract are expressly broad enough to include the third party either by name as one of a specified class, and (2) the said third party was evidently within the intent of the terms so used, the said third party will be within its benefits, if (3) the promisee had, in fact, a substantial and articulate interest in the welfare of the said third party in respect to the subject of the contract.

Yazoo & Miss. Valley R.R. Co. v. Sideboard, 161 Miss. 4, 133 So. 669, 671 (1931).

¶19. In the case sub judice, the trial court found that “the contract forecloses any claim that the Plaintiff might have had against the State as a third-party beneficiary because the Retention Agreement specifically provides that the Kilborn Firm may associate other counsel at the expense of the Kilborn Firm and at no cost to the State.” We agree. Roedel Parsons failed to plead sufficient allegations showing that it possessed any rights springing from the terms of the agreement between the former attorney general and the Kilborn Firm.

¶20. The unambiguous terms of the retention agreement fail to reveal any intent of the former attorney general that Roedel Parsons would benefit under the State's agreement with the Kilborn Firm. The Court has held that “[i]f a written contract is unambiguous, ‘the intention of the contracting parties should be gleaned solely from the wording of the contract and parole evidence should not be considered.’ ” Rosenfelt v. Miss. Dev. Auth., 262 So. 3d 511, 518 (Miss. 2018) (quoting Epperson v. SOUTHBank, 93 So. 3d 10, 16 (Miss. 2012)). Rather than vesting Roedel Parsons with a direct interest under the terms of the agreement, the unambiguous language expressly excluded Roedel Parsons from recovering any amount from the State, explicitly directing that “the undersigned attorneys may associate other attorneys ․ at their own expense and at no cost to the State of Mississippi.” (Emphasis added.)

¶21. Accordingly, Roedel Parsons is at most merely an incidental beneficiary to the retention agreement. The Court has held that “[a] mere incidental, collateral, or consequential benefit which may accrue to a third person by reason of the performance of the contract, or the mere fact that he has been injured by the breach thereof, is not sufficient to enable him to maintain an action on the contract.” Burns, 171 So. 2d at 324-25. “Where the contract is primarily for the benefit of the parties thereto, the mere fact that a third person would be incidentally benefitted does not give him a right to sue for its breach.” Id. (emphasis added) (quoting 17 Am. Jur. 2d Contracts § 307, at 732-33 (1964)).

¶22. To be frank, Roedel Parsons is barking up the wrong tree. Accepting its factual allegations as true—that Roedel Parsons qualified as “other attorneys” as specified in the retention agreement, that Roedel Parsons had a 50/50 side-agreement with the Kilborn Firm, that Roedel Parsons exerted a vast amount of labor and expenses by prosecuting the Entergy litigation, and even accepting as true that a “substantial recovery” was indeed had in the Entergy litigation—the only recourse for Roedel Parsons to recoup the fees to which it claims entitlement is against the Kilborn Firm.

¶23. Because Roedel Parsons failed to plead sufficient allegations showing third-party-beneficiary status under the retention agreement between the former attorney general and the Kilborn Firm, it has no standing to sue the State for an alleged breach of the agreement. The issue of whether the State breached its agreement with the Kilborn Firm, therefore, is moot.

II. Whether the trial court erred by finding that Roedel Parsons failed to state a claim on theories of unjust enrichment and quantum meruit recovery.

¶24. Roedel Parsons contends that even if it did not possess third-party-beneficiary status under the retention agreement, the State still reaped the benefits of its legal services in the matter and has yet to compensate it for such services. Accordingly, Roedel Parsons contends that it would be “unjust, unfair, and inequitable for the Attorney General to retain the benefits procured in large measure by the Plaintiff Firm without commensurate compensation.”

¶25. The Court has written that “[q]uantum meruit means literally ‘as much as he deserves.’ ” Redd v. L & A Contracting Co., 246 Miss. 548, 151 So. 2d 205, 207 (1963) (quoting 73 C.J.S. 1269). When one labors for another in the absence of an agreement providing for compensation, the law implies a promise to pay the laborer what he merits from the services provided. Id. The Court has held that

As a general rule, in order to recover for work and labor on the theory of an implied contract, it is ordinarily deemed essential to show that the services were rendered under the reasonable expectation that they would be paid for by the person sought to be charged, and the person sought to be charged knew that the services were being performed with the expectation that he would pay for such work.

Id. at 209 (citing 71 C.J.S Work and Labor § 6) (emphasis added).

¶26. Similarly, “[u]njust enrichment is an equitable remedy closely associated with ‘implied contracts’ and trusts.” Est. of Johnson v. Adkins, 513 So. 2d 922, 926 (Miss. 1987). The Court has found that

The doctrine of unjust enrichment or recovery in quasi contract applies to situations where there is no legal contract but where the person sought to be charged is in possession of money or property which in good conscience and justice he should not retain but should deliver to another, the courts imposing a duty to refund the money or the use value of the property to the person to whom in good conscience it ought to belong.

Hans v. Hans, 482 So. 2d 1117, 1122 (Miss. 1986) (quoting 66 Am. Jur. 2d Restitution and Implied Contracts § 11 (1973)).

¶27. In the case sub judice, the trial court found that

The Plaintiff also claims quantum meruit and unjust enrichment as possible causes of action. However, both claims are defeated by the specific term of the contract that the Kilborn Firm may retain other counsel at its expense at no cost to the State. The Retention Agreement has a specific formula for calculating payment of a fee. If the Plaintiff proceeds under quantum meruit instead of the fee formula[,] the Plaintiff still must look to the Kilborn Firm for payment rather than the State. Likewise, it cannot be argued that the State was unjustly enriched by the Plaintiff's services where the Plaintiff accepted association in the case with the expectation that payment, if any, would come from the Kilborn Firm rather than from the State.

¶28. We agree. Under the unambiguous terms of the agreement between the State and the undersigned attorneys, “[i]n the event that no recovery is realized, the undersigned attorneys shall receive no compensation or reimbursement.” Had recovery been realized, whether Roedel Parsons would be entitled to compensation for its legal services by the State or the Kilborn Firm is unquestionably clear, as the Kilborn firm expressly could “associate with other attorneys ․ at their own expense and at no cost to the State of Mississippi.” (Emphasis added.) As such, the State had no notice of a reasonable expectation by Roedel Parsons that it would be compensated by the State for the legal services it provided during the Entergy litigation. See Tupelo Redev. Agency v. Gray Corp. Inc., 972 So. 2d 495, 514-515 (Miss. 2007). Accordingly, Roedel Parsons failed to state a claim upon which relief could be granted for quantum meruit recovery and unjust enrichment.

¶29. Lastly, in the same vein, Roedel Parsons contends that the State must compensate it under the common-fund doctrine because the Entergy litigation benefitted the State and its ratepayers. The trial court dismissed Roedel Parsons's complaint without addressing this issue.

¶30. The common-fund or equitable-fund doctrine is “[t]he principle that a litigant who creates, discovers, increases, or preserves a fund to which others also have a claim is entitled to recover litigation costs and attorney's fees from that fund.” Common-Fund Doctrine, Black's Law Dictionary (12th ed. 2024); see Boeing Co. v. Van Gemert, 444 U.S. 472, 478, 100 S. Ct. 745, 62 L.Ed. 2d 676 (1980) (“a litigant or a lawyer who recovers a common fund for the benefit of persons other than himself or his client is entitled to a reasonable attorney's fee from the fund as a whole.” (citing Mills v. Elec. Auto-Lite Co., 396 U.S. 375, 90 S. Ct. 616, 24 L.Ed. 2d 593 (1970))). Its rationalization “ ‘rests on the perception that persons who obtain the benefit of a lawsuit without contributing to its cost are unjustly enriched at the successful litigant's expense.” Yerby v. United Healthcare Ins. Co., 846 So. 2d 179, 189-90 (Miss. 2002) (quoting Van Gemert, 444 U.S. at 478, 100 S.Ct. 745). As such, “[j]urisdiction over the fund involved in the litigation allows a court to ․ assess[ ] attorney's fees against the entire fund, thus spreading fees proportionately among those benefitted by the suit.” Van Gemert, 444 U.S. at 478, 100 S.Ct. 745 (citing Mills, 396 U.S. at 392, 90 S.Ct. 616).

¶31. The United States Supreme Court found that common-fund fee shifting is appropriate when: (1) the class of persons benefitted from the litigation is small in number and easy to identify, (2) the benefits are traceable with accuracy, and (3) confidence exists that the costs of litigation can be shifted with precision to those benefitting. Boeing, 444 U.S. at 479, 100 S.Ct. 745 (quoting Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421 U.S. 240, 265 n.39, 95 S. Ct. 1612, 44 L.Ed. 2d 141 (1975)). Accordingly, “[t]hose characteristics are not present where litigants simply vindicate a general social grievance.” Id. (citing Alyeska Pipeline, 421 U.S. at 263-67 n.39, 95 S.Ct. 1612).

¶32. In the case sub judice, Roedel Parsons has failed to plead sufficient allegations that the trial court had jurisdiction over any fund, common or otherwise, of which it had the power to direct payments to Roedel Parsons. Nor has Roedel Parsons pleaded any allegations to show that it had requested the trial court to allot it fees from any identifiable fund. Moreover, Roedel Parsons has failed to plead sufficient allegations identifying the class of beneficiaries onto whom to shift the litigation costs, as it merely pleaded generalized statements of “the ratepayers of Mississippi” in its complaint. Nor has Roedel Parsons pleaded sufficient allegations showing that the benefits received by the “ratepayers” could be traced with accuracy other than alleging generalized statements that Entergy's membership in MISO saved “Mississippi ratepayers hundreds of millions of dollars.” See Van Gemert, 444 U.S. at 479, 100 S.Ct. 745. Accordingly, this issue lacks merit.

CONCLUSION

¶33. Because Roedel Parsons failed to state a claim upon which relief could be granted, the trial court did not err by granting the State's motion to dismiss. Accordingly, we affirm.

¶34. AFFIRMED.

FOOTNOTES

1.   Additionally, the complaint alleged that “[Entergy] itself ․ touted and bragged about a $32,000,000 per year savings to Mississippi ratepayers as a result of its membership in MISO from 2016 through 2028 ․” Moreover, Roedel Parsons alleged that “then Attorney General James Hood stated in Federal Court proceedings that the net benefits to Mississippi ratepayers would exceed $500,000,000.”

2.   The complaint alleged that because the common fund doctrine applied, Roedel Parsons was entitled to compensation “from the contingent fund established” or from “other funds appropriated to the Attorney General's Office” by the legislature pursuant to Mississippi Code Section 7-5-7 (Rev. 2019).

RANDOLPH, CHIEF JUSTICE, FOR THE COURT:

KING AND COLEMAN, P.JJ., MAXWELL, CHAMBERLIN, ISHEE, GRIFFIS, SULLIVAN AND BRANNING, JJ., CONCUR.