James Killingsworth v. Ted Russell Ford, Inc.

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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