IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
November 14, 2005 Session
JAMES KILLINGSWORTH, ET AL. v. TED RUSSELL FORD, INC.
Appeal from the Circuit Court for Knox County
No. 1-149-00 Dale C. Workman, Judge
No. E2004-02597-COA-R3-CV - FILED JANUARY 5, 2006
This appeal centers around the Trial Court’s award of attorney fees to Plaintiffs in this Tennessee
Consumer Protection Act case. Following remand after the first appeal, the Trial Court awarded
attorney fees of $2,000 for work performed in preparation for and the jury trial of this case, and an
additional $4,500 in attorney fees incurred on the first appeal. Plaintiffs appeal claiming the Trial
Court’s award of $2,000 in fees incurred at the trial court level was unreasonably low. Defendant
appeals claiming the Trial Court erred in awarding any fees incurred on the appeal. We reverse the
award of fees incurred on the appeal, and modify the Trial Court’s judgment to award $6,500 in fees
for work performed at the Trial Court level.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
Reversed in Part and Affirmed in Part as Modified; Case Remanded
D. MICHAEL SWINEY , J., delivered the opinion of the court, in which HERSCHEL P. FRANKS , P.J.,
joined. CHARLES D. SUSANO , JR., J., a separate concurring and dissenting Opinion.
J. Myers Morton and George W. Morton, Knoxville, Tennessee, for the Appellants James and Kathy
Killingsworth.
J. Douglas Overbey and Dan R. Pilkington, Knoxville, Tennessee, for the Appellee Ted Russell
Ford, Inc.
OPINION
Background
This is the second appeal in this Tennessee Consumer Protection Act case. James and
Kathy Killingsworth (“Plaintiffs”) purchased an SUV from Ted Russell Ford, Inc. (“Defendant”).
Thereafter, Plaintiffs brought this lawsuit alleging Defendant failed to advise them about damage
to the previously-unowned SUV. Following a trial, a jury returned a verdict in favor of Plaintiffs
for $2,500. See Killingsworth v. Ted Russell Ford, Inc., 104 S.W.3d 530, 531 (Tenn. Ct. App.
2002). Plaintiffs then filed a post-trial motion seeking attorney fees in the amount of $9,718, and
discretionary costs in the amount of $1,864. Id. at 532. Defendant opposed this motion because
Plaintiffs did not specifically request attorney fees or costs in their complaint. The Trial Court
awarded Plaintiffs a total of $500 for both attorney fees and costs. Plaintiffs appealed claiming the
award of only $500 for attorney fees and costs was unreasonably low. Id. at 534.
As relevant to the current appeal, we held in the first appeal that Plaintiffs’ complaint
was sufficient to put Defendant on notice that Plaintiffs were seeking all relief authorized under the
Tennessee Consumer Protection Act (“TCPA”), including attorney fees and costs. Id. at 533-34.
With regard to the amount of attorney fees and costs awarded, we explained that such determinations
are a matter of discretion with the trial court and will not be disturbed on appeal unless the evidence
preponderates against the trial court’s factual findings in making the award. Id. at 534. We then
stated:
In this state, the establishment of a reasonable attorney's fee
is determined in accordance with Tennessee Code of Professional
Responsibility DR 2-106 (2002), which is a part of Tenn. Sup. Ct. R.
8. DR 2-106 provides, in pertinent part, as follows:
(B) ... Factors to be considered as guides in determining the
reasonableness of a fee include the following:
(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.
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(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.
(8) Whether the fee is fixed or contingent.
With respect to the final factor, our Supreme Court has opined that
"[a]n attorney's fee should be greater where it is contingent than
where it is fixed." United Med. [Corp. of Tenn. v. Hohenwald Bank
& Trust Co.], 703 S.W.2d at 136 [(Tenn. 1986)].
Killingsworth, 104 S.W.3d at 534.
Because there was nothing in the record indicating that the Trial Court had utilized
the above factors when arriving at its decision regarding the award of attorney fees and costs, we
remanded the case to the Trial Court.1
On remand, Plaintiffs’ counsel filed an affidavit detailing the time spent in preparing
the case for trial, at trial, and on the appeal. Plaintiffs’ counsel further stated that all of the fees and
expenses incurred were reasonable and necessary. The attorney fees now sought by Plaintiffs totaled
$17,197.50, which included time spent on the first appeal. The discretionary costs sought by
Plaintiffs had risen to $2,448.35. Plaintiffs filed affidavits from local attorneys to the effect that the
attorney fees incurred in prosecution of this case at trial and on appeal were reasonable and
necessary.
Defendant responded to Plaintiffs’ affidavits, claiming the amount of attorney fees
sought by Plaintiffs were unreasonable and excessive when considering the factors set forth in DR
2-106. Defendant likewise filed affidavits from local attorneys who opined that the requested fees
were excessive and unreasonable, although these affidavits do not state what amount of fees the
affiants believe would have been reasonable. Defendant also claimed that, as a matter of law,
attorney fees incurred on an appeal were not recoverable under the TCPA. Alternatively, Defendant
argued that even if attorney fees for time spent on an appeal normally could be recovered under the
1
Prior to remanding the case, we noted that the Trial Court had determined the jury’s award of $2,500 was the
equivalent in value to a pre-trial settlement offer of repairs and an extended warranty made by Defendant, an offer which
was rejected by Plaintiffs. After reaching this conclusion, the Trial Court indicated that Plaintiffs could have saved
themselves over $11,000 in attorney fees had they simply accepted the offer. W e rejected this conclusion, holding that
the facts preponderated against the Trial Court’s conclusion that the jury’s monetary award was the functional equivalent
to Defendant’s pre-trial settlement offer. Killingsworth, 104 S.W .3d at 536.
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TCPA, Plaintiffs were not entitled to such an award because they did not ask this Court to award
those fees at any time during the first appeal.
Following a hearing, the Trial Court rejected Defendant’s arguments and awarded
Plaintiffs a total of $2,000 in attorney fees for the time spent preparing the case for trial and for the
trial, an additional $4,500 for the time spent on the first appeal, and a total of $2,448.35 in
discretionary costs. Plaintiffs filed this second appeal, claiming the Trial Court erred in awarding
only $2,000 in attorney fees for work performed at the trial court level. Defendant appeals the award
of $4,500 in attorney fees incurred during the first appeal. Defendant claims that pursuant to the
TCPA, attorney fees are not recoverable for work performed on appeal. Alternatively, Defendant
claims that even if attorney fees incurred on appeal are recoverable under the TCPA, Plaintiffs are
not entitled to their attorney fees because they never asked this Court to award those fees during the
first appeal. The award of $2,448.35 in discretionary costs is not at issue in this appeal.
Discussion
The factual findings of the Trial Court are accorded a presumption of correctness, and
we will not overturn those factual findings unless the evidence preponderates against them. See
Tenn. R. App. P. 13(d); Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn. 2001). With respect to legal
issues, our review is conducted “under a pure de novo standard of review, according no deference
to the conclusions of law made by the lower courts.” Southern Constructors, Inc. v. Loudon County
Bd. Of Educ., 58 S.W.3d 706, 710 (Tenn. 2001).
The portion of the TCPA authorizing an award of attorney fees when there is a
violation of the Act is Tenn. Code Ann. § 47-18-109(e). This section provides that “[u]pon a finding
by the court that a provision of this part has been violated, the court may award to the person
bringing such action reasonable attorney’s fees and costs.” The first issue we address is whether
attorney fees incurred on an appeal can be recovered under this statutory provision.
In arguing that attorney fees incurred on appeal cannot be recovered under the TCPA,
Defendant relies primarily on two cases, the first being Leake v. Airport Toyota of Memphis, Inc.,
No. 02A01-9208-CV-0023, 1993 WL 360443 (Tenn. Ct. App. Sept. 14, 1993), no appl. perm.
appeal filed. In Leake, we affirmed a judgment to the plaintiff for a violation of the TCPA. The
plaintiff also requested this Court to award attorney fees incurred on appeal. We stated:
Plaintiff has asked this court for an award of attorney's fees
and costs incurred by him on appeal. Plaintiff asserts that T.C.A.
§ 47-18-109(a)(3), supra, authorizes attorney's fees on appeal or,
alternatively, that attorney's fees and costs should be awarded
pursuant to T.C.A. § 27-1-122 as damages for a frivolous appeal.
Defendant failed to file a motion for a new trial, and on appeal, he has
argued that the court's award of damages was erroneous because the
evidence does not support the jury's verdict. Essentially, defendant
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has asked the court to review and reweigh the evidence to determine
if it supports a finding of a violation of the Consumer Protection Act.
Under these circumstances, we think it appropriate to tax defendant
with the costs on appeal and plaintiff's expenses, including attorney's
fees reasonably incident to this appeal. T.C.A. § 27-1-122 (1980);
see McDonald v. Onoh, 772 S.W.2d 913 (Tenn. App. 1989).
Accordingly, we affirm the trial court's order and remand to
the trial court for a determination of reasonable expenses and
attorney's fees on appeal. Costs are taxed to defendant.
Leake, 1993 WL 360443, at *4.
Defendant argues Leake supports its position that attorney fees incurred on an appeal
are not recoverable under the TCPA. Defendant reaches this conclusion because the Leake Court
did not award attorney fees pursuant to the TCPA, but rather awarded them under the frivolous
appeal statute, Tenn. Code Ann. § 27-1-122.
The second primary case relied upon by Defendant is DuPont Community Credit
Union v. City of Chattanooga, No. 03A01-9207-CV-68, 1993 WL 13032 (Tenn. Ct. App. Jan. 25,
1993), no appl. perm. appeal filed. This opinion involved a petition to rehear filed by Dupont
Community Credit Union claiming it was entitled to attorney fees incurred on the appeal of its
successful inverse condemnation case brought against the City of Chattanooga. We denied DuPont’s
request based primarily on the language contained in the relevant eminent domain statute, stating as
follows:
The pertinent Code Section, T.C.A. 29-16-123(b), provides:
(b) Additionally, the court rendering a judgment for the
plaintiff in a proceeding brought under subsection (a) of this
section, ... shall determine and award or allow to such
plaintiff, as a part of such judgment or settlement such sum as
will in the opinion of the court, ... reimburse such plaintiff for
his reasonable costs, disbursements and expenses, including
reasonable attorney, appraisal, and engineering fees, actually
incurred because of such proceeding.
It will be noted that the Statute provides, "the court rendering
a judgment for the plaintiff." This Court did not award a judgment
for the Plaintiff, but merely affirmed an award made by the Trial
Court. We thus conclude the Legislature has not mandated attorney
fees on appeal.
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DuPont, 1993 WL 13032, at *1. But see Knox County v. Union Livestock Yard, Inc., 59 S.W.3d 158,
167 (Tenn. Ct. App. 2001)(awarding attorney fees incurred on appeal pursuant to Tenn. Code. Ann.
§ 29-17-812(b), a different section of the eminent domain statute containing substantially similar
language to that contained in § 29-16-123(b)). Defendant argues that the inverse condemnation
statute at issue in DuPont and the TCPA statute at issue in the present case are similar enough for
us to conclude that the legislature did not intend for attorney fees incurred on the appeal of a TCPA
claim to be recovered.
While we believe Defendant’s interpretations of Leake and DuPont certainly are
plausible and Defendant’s position is well argued, we reject Defendant’s position in light of our
Supreme Court’s more recent opinion in Forbes v. Wilson County Emergency District 911 Board,
966 S.W.2d 417 (Tenn. 1998). Forbes involved, inter alia, a claim brought pursuant to the
Tennessee Human Rights Act, Tenn. Code Ann. § 4-21-101 et seq. (“THRA”). With regard to
whether attorney fees incurred on appeal were recoverable under the THRA, the Supreme Court
stated:
The plaintiff has asked this Court to award attorney's fees
incurred in this appeal. The remedies provided by the THRA include
"reasonable" attorney's fees. Tenn. Code Ann. § 4-21-306(a)(7) &
-311. The plaintiff is the prevailing party in this suit and is entitled
to relief under the THRA. The THRA does not require that the
plaintiff prevail on all appellate issues before attorney's fees may be
awarded. See Tenn. Code Ann. § 4-21-306 (providing that
affirmative action ordered under the THRA "may include ... a
reasonable attorney's fee"); see generally Church of Scientology Flag
Serv. Org. v. City of Clearwater, 2 F.3d 1509, 1513 (11th Cir. 1993)
(noting "well-settled" law that plaintiff is prevailing party if plaintiff
has succeeded on any significant issue which achieves some of the
benefit the parties sought in bringing suit). Accordingly, the
plaintiff's attorneys are entitled to reasonable compensation for their
time spent in pursuing this appeal. The issue is remanded to the trial
court for a determination of a reasonable fee for the attorneys'
services during the appellate process.
Forbes, 966 S.W.2d at 422.
The THRA and the TCPA both contain sections setting forth the purpose and intent
of the respective statutes. In very general terms, the THRA is intended to assure Tennessee has
“appropriate legislation prohibiting discrimination in employment, public accommodations and
housing….” See Tenn. Code Ann. § 4-21-101(a)(2). The TCPA, on the other hand, is intended “to
protect consumers and legitimate business enterprises from those who engage in unfair or deceptive
acts or practices in the conduct of any trade or commerce in part or wholly within this state.” See
Tenn. Code Ann. § 47-18-102(2). The TCPA further provides that its provisions “shall be liberally
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construed to promote” the statute’s purpose. Tenn. Code Ann. § 47-18-102. While the THRA and
the TCPA certainly are aimed at remedying vastly different wrongs, they both are comprehensive
legislation intended to protect the citizens of Tennessee. Both statutes also provide for a
“reasonable” attorney’s fee. Tenn. Code Ann. § 4-21-306(a)(7); Tenn. Code Ann. §47-18-109(e)(1).
Neither statute contains any language to the effect that an award of attorney fees is limited to fees
incurred at the trial court level. Given that our Supreme Court has interpreted the THRA to
authorize an award of attorney fees incurred on appeal, we can find no compelling reason whatsoever
to interpret essentially identical language contained in the TCPA any differently. Therefore, we hold
that the TCPA does authorize an award of attorney fees incurred on an appeal.
The next issue is whether Plaintiffs actually were entitled to an award of attorney fees
incurred on the first appeal. Defendant argues that the initial decision as to whether to award these
particular attorney fees first must be directed to this Court. Because Plaintiffs never requested this
Court to award attorney fees incurred on the first appeal, Defendant maintains that the Trial Court
exceeded the scope of the remand and erred when it awarded an additional $4,500 to Plaintiffs.
Chaille v. Warren, 635 S.W.2d 700 (Tenn. Ct. App. 1982)(“Chaille I), involved the
construction of a will. On appeal the defendants claimed they were entitled to attorney fees they
incurred during that appeal. In resolving this issue we stated that on remand the trial court “should
consider whether additional attorneys fees should be awarded to defendants' attorneys for their
services regarding this appeal and, if so, the amount of such fee.” Id. at 703. This conclusion has
been reached in other cases. See, e.g., Keeley v. Massey, No. 02A01-9307-CH-00159, 1994 WL
59556 (Tenn. Ct. App. Feb. 28, 1994), no appl. perm. appeal filed. The case of Williams v.
Williams, No. 01A01-9510-CH-00486, 1996 WL 355054 (Tenn. Ct. App. June 28, 1996), no appl.
perm. appeal filed, involved a trial court’s modification of a divorce decree reducing the husband’s
alimony obligation. The wife requested an award of attorney fees incurred on the appeal. We stated:
As to wife's request for attorney's fees, it is the opinion of this
court that the issue be remanded to the trial court. "[T]he trial court
is the proper forum for the determination of whether attorney[']s fees
should be awarded and their amount." Chaille v. Warren, 689
S.W.2d 173, 180 (Tenn. App. 1985) (citing Folk v. Folk, 210 Tenn.
367, 379, 357 S.W.2d 828, 828-29 (1962)). The decision of whether
to allow attorney's fees for an appeal includes a review of the ability
to pay, the success of the appeal, the good-faith of the appellant in
bringing the appeal, the need for the payment, and any other particular
facts of the individual case. Folk, 357 S.W.2d at 829.
Williams, 1996 WL 355054, at *6.
After the opinion in Chaille I was issued and the case remanded, another appeal was
taken and a second opinion was rendered. See Chaille v. Warren, 689 S.W.2d 173 (Tenn. Ct. App.
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1985) (“Chaille II”). We again addressed the attorney fee issue but our conclusion was stated
somewhat differently. More specifically, we stated:
We find no merit in appellants' contention that counsel for the
plaintiffs is estopped to claim additional attorneys fees for the
services he performed on the first appeal from the trial court's
construction of Mr. Warren's will, the sale of his property, and the
disbursement of the proceeds to his heirs. It would have been
premature to request these fees prior to the appeal, see Evans v.
Evans, 558 S.W.2d 851, 854 (Tenn. App. 1977), thus, the only proper
time to request fees for legal services performed on appeal would be
on the remand of the case. See Folk v. Folk, 210 Tenn. 367, 379, 357
S.W.2d 828, 828-29 (1962) and Salisbury v. Salisbury, 657 S.W.2d
761, 771 (Tenn. App. 1983). Counsel for the plaintiffs cannot be
faulted for making his request for attorneys fees at the proper time.…
The appellants next contend that the trial court improperly
went beyond the scope of this Court's remand order contained in
Chaille v. Warren, 635 S.W.2d 700 (Tenn. App. 1982) by awarding
attorneys fees to counsel for the plaintiffs. This argument is
untenable for two reasons. First, it ignores the fact that the proper
time and place to request attorneys fees for services performed on
appeal is on remand in the trial court. See Folk v. Folk, 210 Tenn.
367, 379, 357 S.W.2d 828-29 (1962). Second, it fails to recognize
that the issue of plaintiffs' counsel's entitlement to attorneys fees for
services performed on the first appeal was not addressed by this Court
in Chaille v. Warren, 635 S.W.2d 700 (Tenn. App. 1982) because it
was not an issue, and, therefore, was not part of the first appeal in this
case.
Chaille II, 689 S.W.2d at 178-79. Airline Construction, Inc. v. Tri-State Sprinkler Corp., 807
S.W.2d 247, 269-70 (Tenn. Ct. App. 1990).
The above portion of Chaille II does seem to suggest that the proper time and place
to initiate a request for attorney fees incurred on an appeal is on remand to the trial court. However,
the statute at issue in Chaille provided that attorney fees could be awarded to “the attorneys for the
complainant and defendant to be paid out of the common fund, where the property is sold for
partition .…” Tenn. Code Ann. § 29-27-121. In Chaille I, counsel for defendants requested this
Court to award attorney fees incurred on appeal, and, as set forth above, we remanded this issue to
the trial court to determine if awarding fees was appropriate and, if so, the proper amount. On
remand, pursuant to the statute, the trial court awarded attorney fees incurred on appeal to counsel
for plaintiffs and counsel for defendants. Because the statute at issue in Chaille I and Chaille II
allowed counsel for any of the parties to be awarded attorney fees, and because we directed the trial
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court to consider the propriety of awarding attorney fees on remand, we concluded counsel for
plaintiffs were not estopped to seek attorney fees incurred on appeal when the case was remanded,
even though only the defendants affirmatively made such a request in the first appeal. The point
being, the issue of whether to award fees incurred on appeal was directed to this Court in the first
instance.
We believe the most that properly can be gleaned from cases such as Chaille I,
Chaille II, and Williams, supra, is that there are times when it is appropriate for a trial court to
determine whether to award attorney fees incurred on appeal and, if so, in what amount. However,
that decision is made only after the request is presented initially to the appellate court. When a party
asks the appellate court to award attorney fees incurred on appeal, there are four results which may
occur: (1) the request for fees is denied; (2) the request for fees is granted and the appellate court sets
the amount; (3) the request for fees is granted and the case is remanded to the trial court to determine
the amount of fees to be awarded; and (4) the attorney fee issue is remanded to the trial court to
determine whether fees should be awarded and, if so, the appropriate amount. Regardless of which
of these four results ensues, there is one thing that all four have in common: the issue of whether
to award attorney fees for an appeal was posed initially to the appellate court and the appellate court
decided how that issue would be resolved. We also note the obvious problem with Plaintiffs’
position that would arise in those cases that are not remanded by the appellate court because the
plaintiff did not ask for attorney fees on appeal and there exists no other reason for the appellate
court to remand the case to the trial court.
We hold that when a party is seeking attorney fees incurred on an appeal, that request,
absent any statute or rule directing otherwise, must be directed first to the appellate court in a timely
fashion. To the extent that Chaille II can fairly be read to hold that such a request must initially be
made to the trial court on remand, we respectfully disagree with Chaille II’s holding. In the present
case, at no time during the first appeal did Plaintiffs request an award of attorney fees incurred on
that appeal. Accordingly, we reverse the Trial Court’s award of $4,500 in attorney fees to Plaintiffs
for fees incurred on the first appeal.2 See Upper Cumberland Development District v. Puckett, No.
M2002-02208-COA-R3-CV, 2004 WL 1666049, at * 15 (Tenn. Ct. App. July 21, 2004), no appl.
perm. appeal filed (determining that a request for fees on appeal was moot when there was “no
argument or specific request for an award of attorney’s fees incurred on appeal.”); Cf. Cookeville
Gynecology & Obstetrics, P.C. v. Southeastern Data Systems, Inc., 884 S.W.2d 458, 463 (Tenn. Ct.
App. 1994)(“While attorney's fees may be recovered by a prevailing party when attorney's fees are
provided for by statute or by contract between the parties, … defendant did not present the issue of
its entitlement to attorney's fees in its issues or at oral argument. Tenn. R. App. P. 13(b) provides
in part that ‘review generally will extend only to those issues presented for review.’ Since the issue
of attorney's fees, while referred to in the brief, was not presented as an issue, we decline to consider
that issue.”)(citations omitted in part).
2
Surprisingly, Plaintiffs do not request attorney fees incurred on the present appeal and, therefore, we need not
delve into that issue.
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The final issue before us is whether the Trial Court erred when it awarded only $2,000
in attorney fees related to the preparation and jury trial of this case. When making its ruling, the
Trial Court discussed the various factors in DR 2-106, supra. The Trial Court stated, inter alia:
This was not a difficult case. The defendant admitted the
facts as the jury found them and [that] didn’t change throughout the
entire [case]….
The Court finds that… [Plaintiffs’ lawyers] are good lawyers.
I think they spent too much time, way in excess of what was
necessary under the facts of this case. I think the case should have
been resolved a whole lot sooner without going to trial, except we
want to take a shot at attorney’s fees under the Consumer Protection
Act, we want to take a shot at punitive damages, make some money.
That is what the Court finds the facts are when I’m considering
awarding this fee.
The Trial Court then determined that the second factor in DR 2-106 had no practical
application to this case. With regard to the third factor, the Trial Court indicated that even though
Plaintiffs’ counsel accepted the case on an hourly basis, the typical situation would involve a
contingency fee or a fee based solely on what is awarded by the trial court. The fourth factor
involves the amount involved and the results obtained. According to the Trial Court, Plaintiffs did
succeed on their TCPA claim, but the pertinent facts “were stipulated before we started.” The Trial
Court also pointed out that Plaintiffs were unsuccessful on their claim that there was a knowing and
willful violation of the TCPA, and were unsuccessful on their claim for punitive damages.
Discussing the sixth and eighth factors, the Trial Court stated:
The nature and length of the professional relationship. That
might affect what you’re awarded in fee in this case. The reason for
that is I understand what I have been told the fee arrangement is, these
clients were obligated to pay these lawyers a seventeen thousand
dollar fee for getting them a twenty-five hundred dollar verdict. I
have been told their fee is an hourly fee. That might affect the nature
and length of the relationship between client, and that is a factor that
I think I have to consider.
With regard to the seventh factor, the Trial Court stated that both of Plaintiffs’ attorneys were
qualified, competent, and experienced, with a “great ability and reputation.” After discussing the
pertinent factors, the Trial Court awarded $2,000 of the requested $9,718.
It seems odd that the Trial Court considered $4,500 a reasonable fee for the first
appeal, but only $2,000 was reasonable for taking the case all the way through a jury trial. It is a rare
case when the reasonable attorney fees for taking a case through one level of appeal would be 225%
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of the reasonable trial court level attorney fees, especially when there is a jury trial.3 If an attorney
unreasonably prolongs a case in the hopes of hitting the jackpot with punitive damages or the like,
such conduct may be a factor to consider when awarding attorney fees. We are not, however, willing
to hold that the possibility of receiving punitive damages or the like is not a legitimate factor to be
considered by a plaintiff in arriving at a decision as to whether to accept a defendant’s settlement
offer. In any event, however, we think the Trial Court placed too much emphasis on that particular
point in this particular case. The reason for this is that Defendant never made any monetary
settlement offer which, as noted in the first appeal, is exactly what it was going to take to end this
litigation prior to trial. Absent a monetary settlement offer by Defendant, this litigation was destined
to go to a jury regardless of whether Plaintiffs pursued a punitive damages claim, etc.
We conclude that the evidence does not preponderate against the Trial Court’s
findings and ultimate conclusion that Plaintiffs’ requested attorney fees were excessive because too
much time was spent by the attorneys. However, we do believe that the facts preponderate against
the Trial Court’s holding that only $2,000 in fees was a reasonable amount for work performed at
the trial court level. In arriving at our decision, we find it particularly telling that the expert
affidavits submitted by Defendant, all by well qualified attorneys, opined that the requested fees were
excessive and unreasonable but neglected to state the amount of fees Defendant’s affiants believed
would have been reasonable. Applying all the relevant factors in DR2-106 in light of the clear
legislative intent of the TCPA, we believe an appropriate fee to award Plaintiffs for their attorney
fees at the trial court level is $6,500. The judgment of the Trial Court is so modified.
Conclusion
The judgment of the Trial Court is reversed in part and affirmed in part as modified.
This cause is remanded to the Trial Court for collection of the costs below. Exercising our
discretion, costs on appeal are taxed to the Appellee, Ted Russell Ford Inc.
___________________________________
D. MICHAEL SWINEY, JUDGE
3
Permission to appeal the decision of this Court on the first appeal was denied by the Tennessee Supreme Court
on May 5, 2003. Thus, the appellate court attorney fees were not increased due to full briefing and oral argument before
the Tennessee Supreme Court.
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