In Re: Estate Of Wawana Lynn Brakebill

10/02/2020
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
August 18, 2020 Session

IN RE ESTATE OF WAWANA LYNN BRAKEBILL

Appeal from the Chancery Court for Knox County
No. 77837-1 John F. Weaver, Chancellor

No. E2019-00215-COA-R3-CV

Attorney Herbert Moncier (“Claimant”) brought this action for prejudgment and/or post-
judgment interest on an award of $667,681.80 in attorney’s fees charged by Claimant for
legal services rendered to W. Lynn Brakebill (“Decedent”). Claimant also sought an award
of attorney’s fees against Decedent’s estate for his pro se legal work done in litigating the
issues pertaining to his fees charged as an attorney. The trial court denied prejudgment
and post-judgment interest and held that Claimant could not recover attorney’s fees for his
time expended representing himself. We affirm the judgment of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
Affirmed; Case Remanded

KRISTI M. DAVIS, J., delivered the opinion of the court, in which D. MICHAEL SWINEY,
C.J., and THOMAS R. FRIERSON, II, J., joined.

Herbert S. Moncier, Knoxville, Tennessee, pro se appellant.

Gerald L. Gulley, Jr., Knoxville, Tennessee, for the appellee, Estate of Wawana Lynn
Brakebill.

OPINION

I. BACKGROUND

There are no factual issues in dispute on this appeal. In 2012, Decedent hired
Claimant to represent her in an action against her former husband, Jack Brakebill. The
litigation was highly contentious and protracted. Decedent suffered from intermittent
mental health issues. On April 20, 2012, the Knox County Chancery Court entered an
order authorizing Melissa Mancini, Decedent’s guardian ad litem, to take control of
Decedent’s financial affairs. On June 15, 2012, an agreed order was entered appointing
Ms. Mancini as Decedent’s temporary conservator. Three years later, on September 18,
2015, Ms. Mancini was appointed conservator of Decedent.

In June of 2016, Decedent died, and a petition for probate of her will was filed.
Claimant filed his claim against the Estate “for services rendered to [Decedent], her
Guardian ad litem and Conservators during litigation in three cases.” Jack Brakebill,
another creditor of the Estate, timely filed an exception to Claimant’s claim. Claimant filed
a motion to dismiss Mr. Brakebill’s exception, referencing a settlement agreement between
the Estate and Mr. Brakebill that settled his claims against the Estate. Three days later, on
February 8, 2018, Mr. Brakebill filed notice in the trial court that “having resolved all
issues with the Estate[,] neither he nor his attorneys will be advocating any exceptions,
objections, motions, or any other papers filed by, or on his behalf, in this matter” and that
“all such exceptions . . . may be over-ruled as moot or deemed withdrawn” by Mr.
Brakebill.

On February 12, 2018, Michell Wilkerson, Executrix of the Estate, filed a motion
stating as follows:

Executrix . . . respectfully moves this Honorable Court to set a hearing to
determine the reasonableness of the fees and expenses set forth by [Claimant]
related to the claim that he filed . . . with this Court. [Executrix] did not file
an exception to [Claimant’s] claim(s) inasmuch as [Executrix] believes that
[Claimant] is due a reasonable award of fees and expenses for the legal work
that he performed on behalf of the Decedent and/or the Decedent’s
conservatorship prior to the Decedent’s death; further, at that time claimant
Jack Brakebill had filed an exception to [Claimant’s] fees. Notwithstanding
that there has been a “global” settlement of multiple lawsuits under which
Jack Brakebill agreed to withdraw his personal claim against the Estate[,
Executrix] believes that it is appropriate for this Court — as the ultimate
arbiter regarding awards of attorney fees in Chancery Court cases, as well as
the ultimate protector of the Estate — to make inquiry as to the
reasonableness and necessity of the fees and expenses claimed. In the
alternative, [Executrix] requests that the Estate . . . be allowed to adopt and/or
join in the exception filed by Jack Brakebill in regards to [Claimant’s] claim
for fees.

Claimant responded by filing a motion to dismiss, arguing that Executrix did not timely
file an objection to his claim as required by Tenn. Code Ann. § 30-2-314 (2015). Claimant
also filed a “motion for attorney fees for litigating attorney fees.”

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 On June 21, 2018, the trial court entered an order dismissing as moot the exception
filed by Mr. Brakebill to Claimant’s claim, nunc pro tunc to February 8, 2018. Shortly
thereafter, the trial court granted Claimant’s motion to dismiss Executrix’s motion “to file
an exception to the claim of [Claimant] after the time provided by statute or to join in an
exception filed by Jack F. Brakebill.” The trial court ruled that Claimant’s claims for
attorney’s fees and costs during the time Decedent was subject to a conservatorship
“require Court approval under T.C.A. § 34-1-113 and application of Tenn. R. Sup. Ct. 8,
RPC 1.5 for consideration by the Clerk and Master for his report and recommendation to
this Court.”

Following a hearing before the Clerk & Master on the reasonableness of Claimant’s
fees, the Clerk & Master recommended approval of the full amount requested,
$667,681.80. The trial court confirmed the report. The Estate promptly paid Claimant
$667,681.80, and this amount is not contested on appeal. Claimant then filed motions “for
attorney’s fees for successful defense of attorney’s fees,” “for attorney’s fees for the
granting of . . . dismissal of late filed exceptions,” and for prejudgment interest on his claim
for fees, starting from Decedent’s date of death. Alternatively, Claimant argued that he
was entitled to post-judgment interest starting from November 16, 2016, thirty days after
he filed his claim against the Estate.

After a hearing on Claimant’s request for prejudgment and/or post-judgment interest
and attorney’s fees, the trial court issued an oral memorandum opinion holding as follows
in pertinent part:

as to the claim for prejudgment interest, TCA 30-2-317 only provides for the
payment of interest on contested claims where the claim is one bearing
interest such as promissory notes with interest due and payable. The
Claimant’s claim is not one bearing interest in that regard.

If the claim is viewed as a claim on which no exceptions were filed, the Court
believes the Claimant must apply, under TCA 30-2-316, for entry of a
judgment for the unexcepted claim to be entered as a judgment. That was
not done in this case.

The Claimant’s claims in this case being in the nature of attorney fees and
expenses payable in a conservatorship proceeding were not allowed or
determined to be reasonable until later, and it wasn’t until later under the
criteria of Rule of Professional Conduct 1.5 that the claims were ̶ that the
fees were allowed. And it wasn’t really until this Court’s order of
confirmation entered October 18, 2018, that the fees were allowed.

* * *
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 Additionally, the Claimant, Mr. Moncier, is a licensed and prominent
attorney, but nonetheless he’s also pro se, and the Court does not believe that
a pro se attorney can recover attorney fees for his time because there is no
attorney employed. . . . Claimant is making the claim for attorney fees that
he rendered for services for himself, a pro se attorney. There’s no third-party
attorney involved here. There is no agency involved here.

The trial court denied Claimant’s requests for interest and his attorney’s fees while
representing himself.

II. ISSUES PRESENTED

Claimant appeals, raising the following issues, which we have restated:

1. Whether the trial court erred in denying his request for post-judgment
interest on the ground that he did not comply with Tenn. Code Ann. § 30-2-
316, which requires written application and timely written notice before a
court may enter judgment against an estate after the time for entering
exceptions for claims against an estate has expired.

2. Whether the trial court erred in denying Claimant’s request for
prejudgment interest.

3. Whether the trial court erred in denying Claimant’s request for attorney’s
fees for himself acting pro se.

III. STANDARD OF REVIEW

The issues presented involve questions of law. “We review questions of law,
including those of statutory construction, de novo with no presumption of correctness.”
Duke v. Duke, 563 S.W.3d 885, 894 (Tenn. Ct. App. 2018).

IV. ANALYSIS

A. Post-Judgment Interest

When a creditor timely and properly files a claim against an estate, Tenn. Code Ann.
§ 30-2-314 provides the following time limitation for the personal representative to file an
exception to the claim:

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 (a)(1) Until thirty (30) days after the expiration of four (4) months from the
date of the notice to creditors given as provided in § 30-2-306(b), the personal
representative, or any party interested in the estate either as creditor,
distributee, heir or otherwise, may except to the claim by filing written
exceptions in triplicate with the clerk of the court in which the estate is being
administered.

(2) However, if the filing of the claim as permitted by § 30-2-307(a) occurs
after the date that is four (4) months from the date of the notice to creditors,
the personal representative, or any party interested in the estate either as
creditor, distributee, heir or otherwise, may except to any claim by filing
written exceptions in triplicate with the clerk of the court in which the estate
is being administered; provided, that the exception is filed no later than thirty
(30) days from the date the personal representative receives notice from the
clerk of the filing of the claim.

Tenn. Code Ann. § 30-2-316 provides the following procedure for a creditor to
request a court to enter judgment in the creditor’s favor after the time to enter an exception
has expired:

After the lapse of ninety (90) days from and after the expiration of the time
for entering exceptions to claims filed against the estate, the court may, upon
the written application of any creditor having a matured claim on which no
independent suit is pending, to whose duly filed claim no exception has been
filed as provided in § 30-2-314, enter judgment for the creditor against the
estate; provided, that not less than five (5) days’ prior written notice of
intention to file an application shall be given to the personal representative,
stating the time at which the application is to be presented to the court.

(Emphasis added). It is undisputed that, as the trial court held, “that was not done in this
case.” Claimant did not provide or file a written application, nor did he provide timely
written notice to Executrix, as required by the statute. The trial court did not enter judgment
for Claimant against the Estate until October 18, 2018, after the hearing and report from
the Clerk & Master. The Estate paid Claimant’s claim for attorney’s fees within a week.
Consequently, the trial court did not err by refusing to award Claimant post-judgment
interest.

Claimant relies upon Warfield v. Thomas’ Estate, 206 S.W.2d 372, 375 (Tenn.
1947), wherein the Supreme Court, interpreting a prior version of Tenn. Code Ann. § 30-
2-316, stated:

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 In Higgins’ Administration of Estates in Tennessee, Section 126-a, p. 97, it
is said: “It would seem that claims unexcepted to become the equivalent of
judgments against the estate, excepting of course that the right to an
execution thereon does not follow. The failure to except to a demand thus
filed should be looked upon as a confession of judgment. It is submitted,
however, that relief from such a situation may be granted if the failure to
except be brought about by the fraud of the claimant.”

While no case is cited in support of the text, we think it is sound in principle.
. . . We think that, where the statute expressly provides, as in the instant case,
that no exceptions may be filed after the 13 months’ period of limitation, the
claim stands as if formally adjudicated. The right of the executor cannot be
enlarged by any rule or order of extension by the Court.

Accord Needham v. Moore, 292 S.W.2d 720, 722-23 (Tenn. 1956); Bowling v. Minton, 244
S.W.2d 998, 1000 (Tenn. 1951). The Warfield decision, however, predates the current
version of the statute. At the time Warfield was decided, there were no requirements for
written application and five days’ prior written notice in the statute. The General Assembly
has since amended the statute to expressly provide for those requirements. Moreover, the
issue presented in this case is not whether the right of Executrix to file exceptions to
Claimant’s claim was or should have been “enlarged by any rule or order of extension by
the Court.” Warfield, 206 S.W.2d at 375. The question here is whether an award of post-
judgment interest was appropriate when the statutorily-prescribed procedural requirements
for asking a court to enter judgment against an estate were not followed. We affirm the
trial court’s decision not to award Claimant post-judgment interest under these
circumstances.

B. Prejudgment Interest

Claimant argues that the trial court erred by declining to award him prejudgment
interest on his claim. We review a trial court’s judgment regarding an award of
prejudgment interest under the abuse of discretion standard. Otis v. Cambridge Mut. Fire
Ins. Co., 850 S.W.2d 439, 446 (Tenn. 1992) (“The award of prejudgment interest is within
the sound discretion of the trial court and the decision will not be disturbed upon appellate
review unless the record reveals a manifest and palpable abuse of discretion”); Int’l Flight
Ctr. v. City of Murfreesboro, 45 S.W.3d 565, 573 (Tenn. Ct. App. 2000) (“Trial courts are
afforded a great deal of discretion and are entitled to deference regarding the determination
of whether to award prejudgment interest”) (citing Myint v. Allstate Ins. Co., 970 S.W.2d
920, 927 (Tenn. 1998)).

In Myint, the Supreme Court set forth the following general principles guiding a trial
court’s prejudgment interest decision:
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 Foremost are the principles of equity. Tenn. Code Ann. § 47-14-123. Simply
stated, the court must decide whether the award of prejudgment interest is
fair, given the particular circumstances of the case. In reaching an equitable
decision, a court must keep in mind that the purpose of awarding the interest
is to fully compensate a plaintiff for the loss of the use of funds to which he
or she was legally entitled, not to penalize a defendant for wrongdoing.
Mitchell v. Mitchell, 876 S.W.2d 830, 832 (Tenn. 1994); Otis, 850 S.W.2d at
446.

In addition to the principles of equity, two other criteria have emerged from
Tennessee common law. The first criterion provides that prejudgment
interest is allowed when the amount of the obligation is certain, or can be
ascertained by a proper accounting, and the amount is not disputed on
reasonable grounds. Mitchell, 876 S.W.2d at 832. The second provides that
interest is allowed when the existence of the obligation itself is not disputed
on reasonable grounds. Id. (citing Textile Workers Union v. Brookside Mills,
Inc., 205 Tenn. 394, 402, 326 S.W.2d 671, 675 (1959)).

970 S.W.2d at 927. Subsequently, this Court observed that “[a]s a consequence of the
Myint decision, the Court shifted the balance to favoring prejudgment interest whenever
doing so will more fully compensate plaintiffs for the loss of use of their funds.” In re
Estate of Ladd, 247 S.W.3d 628, 646 (Tenn. Ct. App. 2007) (internal quotation marks
omitted).

In the case of Fossett v. Gray, 173 S.W.3d 742, 754 (Tenn. Ct. App. 2004), this
Court discussed prejudgment interest in the specific context of an award of attorney’s fees,
stating:

The Tennessee prejudgment interest statute, T.C.A. 47–14–123 (2001),
states, in relevant part:

Prejudgment interest, i.e., interest as an element of, or in the
nature of, damages, as permitted by the statutory and common
laws of the state as of April 1, 1979, may be awarded by courts
or juries in accordance with the principles of equity. . . .

The statute’s definition of prejudgment interest as an “element of, or in the
nature of, damages,” suggests that an award of prejudgment interest is
available only to parties to a case—not to their attorneys. An attorney is not
a party to a case and cannot be awarded damages for delay caused by a

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 party’s intervention, however vexatious it may have been. This conclusion
is supported by the reasoning of our supreme court, in the case of Myint[:]

. . . In reaching an equitable decision, a court must keep in
mind that the purpose of awarding the interest is to fully
compensate a plaintiff for the loss of the use of funds to
which he or she was legally entitled, not to penalize a
defendant for wrongdoing.

Id. at 927. Prejudgment interest, then, is not properly awarded to counsel for
the costs incurred in representing a client. In this case, the plaintiffs’
attorneys have been awarded their costs and a fair attorney fee. We therefore
reverse the chancery court’s award of prejudgment interest [on the attorney’s
fees award].

The present case presents a situation different from Fossett in certain regards. Here,
in this probate case, Claimant is proceeding as a party ̶ a creditor seeking to collect from
the Estate a debt owed by Decedent. Nevertheless, the underlying debt is for Claimant’s
contractual fees for legal representation. The Fossett Court’s statement that prejudgment
interest “is not properly awarded to counsel for the costs incurred in representing a client”
remains relevant and persuasive. In this case, Claimant has never taken on the role of a
plaintiff seeking compensatory damages. Myint and its progeny have emphasized that
prejudgment interest is appropriate as an element of a plaintiff’s compensatory damages:
“After all, the more clear the fact that the plaintiff is entitled to compensatory damages, the
more clear the fact that the plaintiff is also entitled to prejudgment interest as part of the
compensatory damages.” Myint, 970 S.W.2d at 928.

Without a doubt, the existence of the obligation to Claimant to pay his reasonable
attorney’s fees has never in been in dispute, and Executrix has not argued otherwise. Any
delay in determining the amount of the obligation was due in part to the trial court’s
fulfillment of its duty to review and approve a payment made on behalf of a person under
a conservatorship, as set forth in Tenn. Code Ann. § 34-1-113(a):

The fiduciary is entitled to pay from the property of the . . . person with a
disability the costs of any required medical examination, the guardian ad
litem fee, bond premium, court costs, attorney fees, fees for income tax
preparation and court accountings, investment management fees, taxes or
governmental charges for which the . . . person with a disability is obligated
and such other expenses as the court determines are necessary for the
fiduciary. The fiduciary shall not pay any attorney fee . . . until the amount
of those fees is approved by the court.

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This statutory provision reflects a legislative determination that, given the immense power
and control of a fiduciary such as a conservator over the financial and personal affairs of
his or her ward, accountability and judicial oversight of the fiduciary’s decisions are
warranted. On appeal, Claimant does not seriously dispute the trial court’s ruling that
under Tenn. Code Ann. § 34-1-113, his claims were subject to judicial scrutiny and
approval.1 We find no error in the trial court’s decision to review and approve the amount
of Claimant’s attorney’s fees charged to Decedent. Thus, as the trial court noted, the
amount of the claim was uncertain and subject to reasonable dispute prior to the court’s
order approving the entire requested fee entered October 18, 2018. The trial court did not
abuse its discretion in refusing to award Claimant pre-judgment interest, and its ruling in
this regard is affirmed.

C. Attorney’s Fees For Self-Representation

Claimant filed several motions asking the trial court to award fees for his time spent
representing himself in litigating his claim against the Estate. The trial court denied his
request, stating that it “does not believe that a pro se attorney can recover attorney fees for
his time because there is no attorney employed.” Claimant appeals this ruling.

At the hearing before the trial court on this issue, the court asked Claimant, “do you
have any case where a pro se attorney has been able to recover for this time?” Claimant
responded, “No, sir.” Executrix cites and relies on several cases contrary to Claimant’s
position, including the United States Supreme Court’s decision in Kay v. Ehrler, 499 U.S.
432, 435 (1991), where the Court addressed the question of “whether a pro se litigant who
is also a lawyer may be awarded attorney’s fees under [42 U.S.C.] § 1988.” Answering in
the negative, the Kay Court observed that “the word ‘attorney’ assumes an agency
relationship, and it seems likely that Congress contemplated an attorney-client relationship
as the predicate for an award under § 1988.” Id. at 435-36 (footnote omitted). The High
Court further reasoned:

A rule that authorizes awards of counsel fees to pro se litigants—even if
limited to those who are members of the bar—would create a disincentive to
employ counsel whenever such a plaintiff considered himself competent to
litigate on his own behalf. The statutory policy of furthering the successful

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Claimant does not mention or discuss Tenn. Code Ann. § 34-1-113 in his brief. He argues that
most of his fees were incurred during a time when Decedent was not under a conservatorship. The statute
does not draw a distinction based on when a “person with a disability” incurs a relevant cost or expense. It
requires judicial approval of any payment of such a cost by a fiduciary. In his brief, Claimant argues that
the trial court’s decision “to analyze and evaluate the sworn claim is contrary to the holdings in Warfield
and Bowling.” As we have already held, these holdings are of limited pertinence because they interpreted
a substantially different version of Tenn. Code Ann. § 30-2-316.
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 prosecution of meritorious claims is better served by a rule that creates an
incentive to retain counsel in every such case.

Id. at 437-38. Shortly before Kay, the Sixth Circuit in another 42 U.S.C. § 1988 case stated
broadly, “[p]ro se litigants are not entitled to recover attorney fees. . . . Not even attorneys
who proceed pro se are entitled to recover fees.” Simpson v. Montague, 902 F.2d 35 at *4
(6th Cir. May 10, 1990).

This Court has ruled similarly in a Tennessee Public Records Act case, Clarke v.
City of Memphis, 473 S.W.3d 285, 293-94 (Tenn. Ct. App. 2015), stating,

We see no authority in the statute that would permit a self-represented
litigant—even a licensed attorney such as Mr. Clarke—to recover “attorneys’
fees” for personal efforts expended on a public records case. Self-
represented efforts involve no costs in the form of attorneys’ fees because
the incurring of such fees implies an agency relationship. See Black’s Law
Dictionary 153 (10th ed. 2014) (defining an attorney as “one who is
designated to transact business for another; a legal agent”). Although Mr.
Clarke is entitled to recover attorneys’ fees he actually incurred as a cost, he
is not entitled to recover attorneys’ fees he billed while working on his own
case.

Accord Sutton v. Bedford Cnty. Tenn. Sheriff Dep’t., No. M2014-02575-COA-R3-CV,
2015 WL 6153742, at *2 (Tenn. Ct. App. Oct. 19, 2015).

The trial court followed this reasoning, finding that “[t]here’s no third-party attorney
involved here. There is no agency involved here.” On appeal, Claimant argues for the first
time that his law firm should be awarded fees because he was acting on behalf of the firm,
stating in his brief that “in the context of a law business being a separate entity from an
individual, [Claimant] was employed to represent his law business.” Executrix points out
that nowhere in any of the pleadings was Claimant’s law firm listed as a claimant or a party.
The record is clear that Claimant was acting individually, on his own behalf, throughout
the proceedings below, and he did not make the argument that he was involved in an agency
relationship on behalf of his firm until the trial court ruled that he could not recover pro se
fees because there was no third-party attorney acting as his agent. This argument is without
merit.

“Because the award of attorneys’ fees is within the discretion of the trial court, we
review the trial court’s actions for an abuse of discretion.” Clarke, 473 S.W.3d at 290.
The trial court did not abuse its discretion in declining to award Claimant attorney’s fees
for time spent representing himself in this case.

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 V. CONCLUSION

The judgment of the trial court is affirmed. Costs on appeal are assessed to the
Appellant, Herbert S. Moncier, for which execution may issue if necessary.

_______________________________
KRISTI M. DAVIS, JUDGE

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