Jennifer Furnas Coleman v. Marty Alan Coleman ( 2015 )

IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
November 13, 2014 Session
JENNIFER FURNAS COLEMAN V. MARTY ALAN COLEMAN
Appeal from the Chancery Court for Shelby County
No. CH022091 Arnold B. Goldin, Chancellor
No. W2011-00585-COA-R3-CV - Filed - February 4, 2015
This is an appeal of attorney’s fees in a post-divorce matter. The mother filed a petition to
modify the permanent parenting plan and suspend the father’s parenting time with the
parties’ two minor children. The mother incurred around $16,000.00 in legal expenses
litigating her petition and then changed attorneys. The parties eventually settled the petition
with respect to the visitation issues, but reserved the issue of attorney’s fees. Finding that the
mother’s legal expenses of over $350,000.00 were not reasonable, the Special Master
recommended that the father only be required to reimburse the mother for approximately
$124,000.00. The trial court decreased the award further, awarding the mother approximately
$42,000.00. Mother appeals, arguing that the trial court abused its discretion because all of
her attorney’s fees were reasonable. Discerning no abuse of discretion, we affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed
J. S TEVEN S TAFFORD, P.J., W.S., delivered the opinion of the Court, in which B RANDON O.
G IBSON, J., and K ENNY A RMSTRONG, J., joined.
David E. Caywood, Memphis, Tennessee, for the appellant, Jennifer Furnas Coleman.
Bradley Wayne Eskins and James E. King, Jr, Memphis, Tennessee, for the appellee, Marty
Alan Coleman.
OPINION
Facts & Procedural History
Jennifer Furnas Coleman (“Mother”) and Marty Alan Coleman (“Father”) were
divorced on March 10, 2003. At that time, a Permanent Parenting Plan was in place, which
provided that the parties’ two minor children would have regular, unsupervised parenting
time with Father. On June 9, 2006, Mother filed a Petition to Modify the Permanent
Parenting Plan and to Temporarily Suspend Father’s Parenting Time. As the ground for the
modification, Mother alleged that Father was addicted to drugs and alcohol and was a danger
to the children. Mother sought an immediate injunction against Father’s parenting time,
which the court granted on the same day that Mother filed her Petition. She also requested
recovery of her reasonable attorney’s fees, private investigator fees, and other suit expenses
for having to bring the petition to protect the minor children’s best interest. Attached to
Mother’s petition was an Affidavit of Complaint against Father for the illegal possession of
cocaine and a positive drug screen of Father. Also included was an affidavit of Dr. Amy
Beebe, a psychologist for one of the parties’ minor children, wherein Dr. Beebe
recommended that visitation between Father and the minor children be temporarily
terminated. At the time Mother originally filed her petition, Jason Creech represented
Mother. Mr. Creech was an associate attorney who had been practicing law for six years and
billed $200.00 per hour for services.
According to Father, he acknowledged his problems with alcohol and drug abuse and
made a settlement offer (“original settlement offer”) so as to avoid litigating Mother’s
motion. The original settlement offer stated that Father would have supervised visitation with
his children. It also provided that Larry and Anne Coleman (collectively, “Grandparents”),
Father’s parents, would serve as supervisors. Visitation would be terminated if Father failed
to meet certain conditions, and would only be resumed upon Dr. Beebe’s recommendation.
Mother did not agree to the original settlement offer, which was signed only by Father,
Father’s counsel, and Grandparents.1
Trial for Mother’s petition was set for June 20, 2006, but was rescheduled to July 20,
2006 by written order. In the written order, signed July 7, 2006, the trial court ordered that
Father could have supervised parenting time.2 On July 20, 2006, Father filed a response to
Mother’s petition. Father admitted that he had sought treatment for his alcohol and cocaine
use, but denied that he had an ongoing addiction to cocaine and denied any continued cocaine
use. He conceded that he had sought treatment for his substance abuse and that he had
1
Later in the litigation, on May 13, 2008, Grandparents filed a Petition to Intervene and Be
Joined as Indispensable Parties. Grandparents sought visitation with the minor children. Eventually, on
September 14, 2011, counsel for Mother announced to the trial court that a settlement had been reached with
regard to Grandparents’ petition, and that the “grandparents[’] petition will be dismissed with prejudice and
each side is going to pay their [sic] own attorney fees.”
2
The Order states that it was entered upon “request of counsel for both parties.”
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relapsed after his treatment at the Betty Ford Center and after his treatment at Passages
Treatment Center.3 He further conceded he failed a drug test on April 26, 2006. He denied
that the Parenting Plan should be amended. He requested that unsupervised visitation be
reinstated pursuant to the Permanent Parenting Plan.
On July 17, 2006, Mr. Creech, Mother’s counsel, deposed Father. He billed Mother
6.5 hours to prepare for and take Father’s deposition. During the deposition, Father admitted
numerous times to alcohol and drug use. He admitted he had a substance abuse problem
involving alcohol, cocaine, and marijuana. He also admitted that he had consumed alcohol
and driven with his minor children, and he admitted he had been arrested three times for
driving under the influence. He further admitted he had taken his children to school late and
that he had sent them to school without breakfast. He testified that, in December 2005, he
was so hung over that the children could not wake him to take them to school.4
Based on evidence gathered from Father’s deposition and from a private investigator,
Mr. Creech later indicated that he was ready to proceed to trial at that time on Mother’s
petition. As of July 20, 2006, discovery had been completed, and the case was set to proceed
to trial. At this time, Mother’s legal expenses totaled approximately $16,277.80.
The case was not resolved as expected, however. Instead, on August 2, 2006, Mother
hired David E. Caywood to take over representation of her case. Mr. Caywood wrote a letter
to Father’s counsel indicating he had been retained, acknowledging that the trial had been
continued and reset for August 31, 2006, and stating that he would be prepared for trial on
that date. At the time Mr. Caywood received the file, it included Mother’s petition, Father’s
positive drug screen for cocaine, an affidavit of Dr. Beebe recommending suspension of
visitation, a private investigator’s report indicating Father’s alcohol consumption at bars,
Father’s deposition, and the proposed consent order from Father.
The hearing on Mother’s petition was again rescheduled for September 14, 2006.
However, on September 14, 2006, Father’s counsel presented a letter to the trial court from
Dr. Thomas Bannister, Father’s psychiatrist, who stated that Father was “acutely ill” and
3
In January 2006, Father’s prior counsel wrote to Mother’s prior counsel that Father had returned
from Passages Treatment Center in Malibu, California after successfully completing the program. She stated
that “he seem[s] to be a new man.”
4
We do not include Father’s admissions to embarrass or condemn him. However, we list Father’s
admissions in order to show Mother’s knowledge of Father’s illegal or dangerous activities so we may
analyze whether fees to uncover more (and similar) information about Father’s activities were justified.
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unable to attend the September 14, 2006 hearing.5 Father’s counsel requested a continuance.
Mother opposed the continuance and stated that she had an investigative report indicating
that Father had been at a bar consuming alcohol on September 13, 2006 and did not appear
acutely ill at that time. Still, the trial court continued the matter to September 27, 2006.
On September 21, 2006, Father’s counsel requested another continuance because
Father was leaving immediately for The Meadows, a treatment center in Arizona. Rather than
resetting the hearing for another time, the trial court dropped the matter from its calendar and
entered an order providing that it would be scheduled upon Father’s return from The
Meadows. In the interim, the trial court suspended Father’s parenting time.
On November 22, 2006, Father filed a Motion to Appoint a Guardian Ad Litem. The
trial court granted Father’s motion on January 30, 2007. Linda Holmes was appointed
Guardian Ad Litem (“GAL”) and ordered to conduct an investigation upon the order’s entry.
Legal Fees Billed to Mother during Litigation
Despite the fact that this case was scheduled to have been resolved, the dispute, and
the legal fees associated with that dispute, were far from over. From August 2006 to April
2007, when the case was settled, the parties made several appearances before the trial court.
Consequently, Mother incurred additional attorney’s fees from Mr. Caywood, including his
own time and the time of his associate and paralegal. For example, the parties argued over
whether Father should be entitled to Christmas visitation with the children due to his
continued alcohol use. Although Father admitted his alcohol abuse, Mother incurred over
$35,000.00 in private investigator fees to surveil Father and report on his alcohol use. Mother
explained the continued surveillance by stating that while Father sometimes admitted his
alcohol use, he sometimes denied that he was abusing alcohol, and yet continued to seek
visitation with the children.
Despite his appearance at a deposition when Mother was represented by Mr. Creech,
Father was required to appear at a second deposition in April 2007. Mr. Caywood and his
office billed over 120 hours in preparation for the deposition, and a total of 205.85 hours for
legal services in April 2007, totaling $42,963.00. Father’s deposition lasted under two hours.
During this deposition, Father again admitted that he continued to consume alcohol and
abuse drugs. Regardless, Mother resumed private investigation of Father.
5
Shortly thereafter, on October 27, 2006, Mother filed a motion for Dr. Bannister to release all of
Father’s medical records. The parties ultimately entered a Consent Order on November 13, 2006 permitting
the release of records.
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After Father’s deposition, the parties entered into a settlement agreement, which was
similar to the original settlement offer that had never been accepted by Mother. Specifically,
both the original settlement offer and the settlement agreement provided a series of
conditions for Father to meet before being allowed visitation, and also provided that
visitation could be terminated upon the recommendation of the children’s psychologists.6 The
settlement agreement was announced on the record; however, the parties reserved the issue
of attorney’s fees and suit expenses. On July 27, 2007, a written Order Pertaining to the Best
Interests of the Parties’ Minor Children, which memorialized the parties’ settlement, was
entered nunc pro tunc to April 26, 2007. The order provided that each child’s psychologist
would determine what contact Father was to have with that particular child. Further, Father
was ordered to comply with the recommendations of Dr. John McCoy, a specialist in the field
of substance abuse. Father would also have to attend sixty Alcoholics Anonymous meetings
in sixty days. On August 3, 2007, Mother filed her Petition for Suit Expenses. At this time,
Mother’s legal expenses totaled $49,594.74.
Legal Fees Billed to Mother after Settlement
From May 2007 until approximately February 2009, Mother incurred more fees while
attempting to collect from Father the fees allegedly stemming from her original petition.
Although the parties had reached a settlement in April 2007, Mr. Caywood’s office continued
to bill Mother for legal services allegedly related to suit expenses. Mr. Caywood’s office also
billed Mother monthly for legal services performed in May 2007 through February 2009
while the parties litigated the issue of attorney’s fees and suit expenses. The hours of legal
services performed during these months range from 1.05 hours to 97.15 hours per month.
Mother was also charged for copying expenses during these months. In preparation for the
hearing on Mother’s legal expenses, Father retained an expert on attorney’s fees in family
law matters, Michelle Betserai.
Despite the fact that the parties had settled their dispute, in November 2007, March
2008, and June 2008, Mother again incurred fees related to the use of a private investigator.
This time, the surveillance was not just limited to Father, but also to Father’s counsel,
6
One notable difference between the original settlement agreement and the settlement agreement
actually entered is that, in the original settlement agreement, Grandparents were to serve as supervisors
during Father’s visitation. Because Father was not initially allowed visitation in the ultimate settlement until
certain conditions were met, there was no requirement that Father’s eventual visitation be supervised.
Further, the original settlement agreement also provides that “Father may take the children out unsupervised,
with the prior consent of his parents.” Still, even with this agreement, which was not accepted by Mother,
Father’s visitation did not begin until he had successfully completed a series of treatments for his substance
abuse.
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ostensibly to show that Father’s counsel improperly asked to reschedule a deposition.7
On October 30, 2008, the parties finally went before the Special Master for a hearing
on the issue of attorney’s fees and suit expenses. The total requested by Mother at this time
was approximately $354,872.89. The hearing was reset for February 4, 2009 and eventually
concluded on February 6. The following individuals testified at the hearing: Mr. Caywood,
Mother’s counsel; Dan Taylor and Dorothy Pounders, Mother’s experts on attorney’s fees;
Michelle Betserai, Father’s expert on attorney’s fees; and Mother.
Mr. Caywood testified as to his fees and rates, and he also testified that the fees were
justified because they were incurred protecting the best interests of the children. He testified
that he attempted to have “paralegals and associates do as much of the work as I can . . . It’s
not economically feasible for me, for example, at 385 dollars an hour to be doing work that
a paralegal, for example, in 2007 was being charged out at 135 dollars an hour.” Mr.
Caywood’s testimony indicated that Father’s admissions to substance abuse were not as clear
as Father argues. In fact, Mr. Caywood testified that he did not
see [Father as someone] who was in, or had much chance, of
entering the phase of what they call a recovering alcoholic. . . .
I am also receiving letters from his then attorney basically to the
effect that Mr. Coleman had come back from one of these
institutions and he was a changed person; he was going to go to
these AA meetings.
* * *
I told [Mother] we put surveillance on him because he said he
was going to get around to addressing this problem; that he was
going to do this, going to do that. You know, if he stopped
drinking after that deposition and stayed out of those bars and
done what he should have done, well, then he would have said,
I did what I said I was going to do.
Mr. Caywood also testified about issues with the GAL, which he asserted caused Mother to
incur additional attorney’s fees. According to Mr. Caywood, the GAL had attempted to
overhaul the parties’ April 26, 2007 order, settling the issue of visitation. Mr. Caywood
7
During a hearing in the trial court, Mr. Caywood stood by his decision to privately investigate
Father’s attorney; at oral argument on appeal, however, Mr. Caywood apologized for his behavior in the
trial court.
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explained: “So now everything that I had done in order to obtain for the benefit of these
children that April 26, 2007 order, as far as the [GAL] is concerned, is down the drain, and
the [GAL] approved the April 26 order and she was involved in the drafting of it . . .” Mr.
Caywood’s testimony expounded on the hardships he and Mother faced throughout the
litigation, giving as an example several instances where Father attempted to regain his
visitation rights. When Father attempted to regain some visitation, Father would state that he
had been a great father to the children and had not engaged in questionable activity around
the children, and then would subsequently check into a rehabilitation facility again or, in one
case, be arrested for driving under the influence. To Mr. Caywood, Father’s continuous battle
with substance abuse could not be reconciled with his requests for visitation.
When Mother testified, she stated she was unsure of Mr. Caywood and his associate’s
rates. However, she still believed the ultimate bill for Mr. Caywood’s services of over
$350,000.00 was justified because it protected her children.
Ms. Betserai testified that the hours billed by Mr. Caywood’s office were excessive
and that the amount billed for private investigation fees was excessive in light of Father’s
admitted substance abuse.8 On the other hand, Mother’s experts Mr. Taylor and Ms. Pounders
opined as to the reasonableness of Mr. Caywood and his associate’s fees, but they did not
opine on whether the number of hours billed was excessive. They also did not review the file
and determine whether the final bill was reasonable.
During this time, before the Special Master issued his report, Mother made several
attempts to disqualify the GAL and the court-appointed evaluator.9 The trial court denied all
of Mother’s attempts. Mother also filed a Motion to Recuse the trial judge on April 22, 2009.
On April 24, 2009, the matter was transferred from Chancellor Walter Evans to Chancellor
8
Ms. Betserai made several misrepresentations during the hearing, which are undisputed on
appeal. On July 20, 2012, the Board of Professional Responsibility of the Supreme Court of Tennessee
suspended Ms. Betserai from the practice of law for two years. One of the reasons the Board suspended Ms.
Betserai was for “misrepresentations made during testimony as an expert witness about belonging to a bar
association and about her level of participation in an appeal.” However, the Board’s notice does not offer
the name of the case in which Ms. Betserai made the misrepresentations.
9
Mother filed a Motion to Disqualify the GAL Linda L. Holmes on April 2, 2009. However, the
record indicates that this is not Mother’s first attempt to disqualify and discharge the GAL. On April 4, 2008
and July 28, 2008, Mother orally moved to disqualify the GAL. During the July proceedings, Mother
suggested that the GAL had been biased toward Father’s position as Father had paid the majority of the fees
owed to the GAL by stating, “[H]e whose bread I eat his song I sing.”
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Arnold Goldin. The motion to recuse was granted by written order dated May 15, 2009.10
The Special Master entered his report on March 25, 2010, finding that Mother’s
request for attorney’s fees and suit expenses was excessive. He awarded Mother a total of
$124,824.05. In the Report of the Special Master, he found that the rates charged by Mr.
Caywood and his associates to be reasonable. Ultimately, he reported that Mr. Caywood’s
total fees of $56,844.50 for 146.25 hours of legal services was reasonable. However, he
reported that the “time billed by other personnel at the Caywood firm” amounted to a request
by Mother of $217,263.00. The Special Master stated: “With little to no proof supporting this
amount and considering the amount of the fees of [Mother’s former counsel] and Mr.
Caywood, the Special Master finds $5,000[.00] to be reasonable.” The Special Master
reported that Father should reimburse Mother in the following amounts:
[Mother’s former counsel, Mr. Creech] $16,277.50
[Mr. Caywood’s firm] $61,844.50
Copying Fees $1,000.00
Court Reporter $8,595.60
Private Investigators $37,106.45
Both Mother and Father filed objections to the Special Master’s findings of fact and
conclusions of law to the Chancery Court on April 8, 2010.
On January 27, 2011, the Chancery Court filed its Order Denying Mother’s Objections
and Granting in Part Father’s Objections to the Report of the Special Master. In this order,
the Chancery Court further reduced the award of fees to $42,277.50. In its order, the trial
court stated:
The history of this case is a long and tortuous one and the Court
will not endeavor to chronicle it here. Moreover, the Court
recognizes that there has been an ongoing conflict between not
only the parties to this case but also between Mother’s counsel
and opposing counsel and the Guardian Ad Litem. This Court
believes that this unfortunate conflict has caused Mother’s
counsel to use every litigation arrow in his quiver in pursuit of
Mother’s goals. Mother can certainly engage in such a strategy
but she must recognize that she cannot expect the other side to
10
Chancellor Evans stated that he was personally offended by the conduct of Mother’s counsel
as he continued to attack the GAL, the Attorney Ad Litem, Dr. Steinberg and everybody who he perceived
held a contrary position to Mother.
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pay for it.
Furthermore, the trial judge found that he did “not believe the vast majority of the fees and
costs incurred were reasonable or necessary for purposes of requiring the opposing party to
pay them in their entirety.” Ultimately, the trial judge agreed with the Special Master that
Mother’s fees incurred by Mother’s prior counsel in the amount of $16,277.50 were
reasonable and should be paid by Father. The trial court found that the $37,106.45 for private
investigator fees was “not justified” based on Father’s numerous admissions regarding his
continued substance abuse. The trial court also awarded an additional $25,000.00 to Mother
in reasonable attorney’s fees and expenses, which amount included deposition and copying
fees, to compensate Mr. Caywood and his office for its work on Mother’s case. Thus, the
total amount awarded by the trial court for Mother’s fees was $42,277.50.
Issues Presented
Mother raises the following eight issues for review, as taken from her brief:
1. The trial Court erred in not dismissing and discharging the
Guardian Ad Litem, Linda Holmes.
2. The trial Court erred in not dismissing and discharging Dr.
Fred Steinberg, Court appointed evaluator.
3. The Trial Court erred in imposing sanctions on Mother which
required her to pay attorney fees for Father.
4. The Trial Court erred in imposing sanctions on Mother which
required her to pay attorney fees for Dr. Steinberg.
5. The Trial Court erred in imposing sanctions on Mother which
required her to pay attorney fees for Linda Holmes[, the
Guardian Ad Litem].
6. The Trial Court erred in imposing sanctions on Mother which
required her to pay attorney fees for grandparents.
7. The Trial Court erred in quashing Mother’s Notice to Take
Deposition of Guardian Ad Litem pertaining to the fees the
Guardian Ad Litem was seeking when there were 41
unchallenged or questioned entries in her Fee Affidavit. The
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Court rules that counsel for Mother could only examine the
Guardian Ad Litem for one hour at the hearing.
8. The Trial Court erred in setting the amount of attorney fees
due Mother’s counsel, David E. Caywood.
Father also raises three issues, as taken from his brief:
[1.] Whether the trial court erred when it awarded Mother
$42,277.50 in attorneys’ fees and suit expenses? []
[2.] Whether Mother’s bad faith litigation conduct when
reviewed in its totality should act as a complete bar to the
recovery of attorneys’ fees and suit expenses awarded to her? []
[3.] Whether Mother’s appeal of all interlocutory orders related
solely to the [Paternal] Grandparent’s [sic] to Intervene and be
Joined as Indispensable Parties that Mother settled with the
Grandparents and thereafter entered an Order of Dismissal with
Prejudice constitutes a frivolous appeal? []
Briefing Requirements
As an initial matter, we must first discuss the deficiencies in Mother’s brief. Briefs
submitted to the Tennessee Court of Appeals are governed by Rule 27 of the Tennessee
Rules of Appellate Procedure. It provides:
(a) Brief of the Appellant. The brief of the appellant shall
contain under appropriate headings and in the order here
indicated:
(1) A table of contents, with references to the
pages in the brief;
(2) A table of authorities, including cases
(alphabetically arranged), statutes and other
authorities cited, with references to the pages in
the brief where they are cited;
...
(4) A statement of the issues presented for review;
(5) A statement of the case, indicating briefly the
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nature of the case, the course of proceedings, and
its disposition in the court below;
(6) A statement of facts, setting forth the facts
relevant to the issues presented for review with
appropriate references to the record;
(7) An argument, which may be preceded by a
summary of argument, setting forth:
(A) the contentions of the appellant
with respect to the issues presented,
and the reasons therefor, including
the reasons why the contentions
require appellate relief, with
citations to authorities and
appropriate references to the record
(which may be quoted verbatim)
relied on; and
(B) for each issue, a concise
statement of the applicable standard
of review (which may appear in the
discussion of the issue or under a
separate heading placed before the
discussion of the issues);
(8) A short conclusion, stating the precise relief
sought.
* * *
(i) Page limitations. Except by order of the appellate court or
judge thereof, arguments in principal briefs shall not exceed 50
pages . . .
Tenn. R. App. P. 27 (emphasis added).
Despite the requirements of Rule 27, there are several deficiencies in Mother’s brief
to this Court. First, Mother’s brief combines her facts and arguments section, which spans
approximately fifty-five pages.11 As discussed above, Rule 27 specifically requires that briefs
11
On September 15, 2014, we granted Father leave to exceed the fifty-page limit placed on
(Continued...)
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be divided into sections under appropriate headings. Mother’s brief fails to meet this
requirement. Second, because Mother combined her argument and facts sections in violation
of Rule 27, the sections of Mother’s briefs that she asserts contain her argument exceed the
50 page limit allowed by Rule 27(i). This Court has previously been faced with a similarly
deficient brief. See Freiden v. Alabaster, No. 86186-2, 1990 WL 14562 (Tenn. Ct. App. Feb.
21, 1990), perm. app. denied (Tenn. June 11, 1990). In Freiden, the appellant’s brief
contained an argument section totaling 54 pages, and a facts section totaling 74 pages. Id. at
*1. Moreover, appellant’s statement of fact was “interlaced and intertwined” with arguments
of counsel. Id. Relying on the well-settled principle that “appellate courts are not under a
duty to minutely search a voluminous record to verify unsupported allegations[,]” the Court
explained that:
Applying this principle to the case at bar, this Court is of the
opinion that where argument of counsel is so repeatedly
intertwined with what might be considered statements of fact, it
is not the responsibility of the Appellate Court to read such a
brief so as to ferret out the facts from the argumentative
statements in order to eliminate improperly included argument.
Id. Thus, the Court “substantially” disregarded appellant’s statement of facts in favor of its
own research and the facts supplied by the appellees.
Like the Court in Freiden, this Court might be inclined to overlook the deficiencies
in Mother’s brief, had the brief contained appropriate citations to authority. Here, the issues
presented by Mother involve a multitude of arguments regarding the proper standard of
performance for GALs and court-appointed evaluators, sanctions that may be imposed on a
party, and various other issues; however, Mother’s argument contains citation to only two
cases,12 both of which pertain to the standard of review for attorney’s fees. In addition,
(....continued)
principal briefs. Additionally, on November 3, 2014, we granted leave for Mother’s reply brief to exceed the
twenty-five page limit. Mother was not granted leave to exceed the page limit on her initial brief, however.
12
The standard of review section of Mother’s brief contains additional citations related to the
preponderance of the evidence standard. It is unclear, however, how the cited cases support Mother’s
argument, as no specific reference to a page number or relevant language is included in the citations. See
Tenn. R. App. P. 27(h) (“ Citation of cases must be by title, to the page of the volume where the case begins,
and to the pages upon which the pertinent matter appears in at least one of the reporters cited.”)
(emphasis added). Furthermore, these cases are not cited in the table of authorities section of Mother’s brief,
as required by Rule 27. See Tenn. R. App. P. 27(a)(2).
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despite the fact that Mother asserts that she is combining her argument and facts into one
section, this section of her brief contains no citation to any relevant legal authority.13 Instead,
the only citation to relevant authority begins on page 77 of Mother’s brief, where Mother
discusses the applicable standard of review.
From our review of Mother’s brief, no relevant legal authority is cited with regard to
issues 1 through 7. First, Issue 1 concerns the dismissal of the GAL from the case. No legal
authority is cited to support Mother’s argument that the GAL acted improperly, or to support
Mother’s request to dismiss the GAL after the case had already been settled by agreement
of the parties. The same is true regarding Issue 2, relative to the trial court’s failure to dismiss
the court-appointed evaluator.
Issues 3 through 6 concern Mother’s assertion that she was required to pay certain fees
in the trial court as sanctions. Mother’s brief, however, cites no relevant authority regarding
the award of sanctions. Moreoever, Mother’s brief fails to point to an order of the trial court
requiring Mother to pay any sanctions. Rule 6 of the Rules of the Court of Appeals of
Tennessee specifically requires that an appellate brief contain a statement of the erroneous
action of the trial court, as well as a specific reference to the record “where such action is
recorded.” Without such a reference, Rule 6 mandates that the alleged error will not be
considered on appeal. See Tenn. R. Ct. App. 6(b) (“No complaint of or reliance upon action
by the trial court will be considered on appeal unless the argument contains a specific
reference to the page or pages of the record where such action is recorded. No assertion of
fact will be considered on appeal unless the argument contains a reference to the page or
pages of the record where evidence of such fact is recorded.”).
Finally, Issue 7 concerns the trial court’s alleged error in quashing Mother’s scheduled
deposition of the GAL. Again, Mother cites no legal authority regarding the trial court’s
authority to quash depositions, nor constructs any legal argument as to why this issue must
be reversed, given that the parties reached a settlement agreement on the issue of Father’s
visitation, the crux of Mother’s petition. It is well-settled in Tennessee that the “failure of
a party to cite any authority or to construct an argument regarding his position on appeal
constitutes waiver of that issue.” Newcomb v. Kohler Co., 222 S.W.3d 368, 401 (Tenn. Ct.
App. 2006). While we have thoroughly reviewed the prolific record,14 both parties’ principal
13
This section of Mother’s brief does contain a single citation to Rule 40A of the Tennessee
Rules of the Supreme Court. However, this citation is merely in reference to a statement made by the trial
court. Mother’s brief contains no language from Rule 40A and no analysis as to how its provisions support
Mother’s arguments in this case.
14
We note that the appellate record in this case consists of forty-three volumes of technical
(Continued....)
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briefs, and both parties’ reply briefs in this appeal, we remind litigants that “[j]udges are not
like pigs, hunting for truffles buried in briefs.” U.S. v. Dunkel, 927 F.2d 955, 956 (7th Cir.
1991). “It is not the function of the appellate court to research and construct the parties’
arguments.” Id. (citing United States v. Berkowitz, F.2d 1376, 1384 (7th Cir. 1991).
We recognize that there are times when this Court, in the discretion afforded it under
Rule 2 of the Tennessee Rules of Appellate Procedure, may waive the briefing requirements
to adjudicate the issues on their merits. This may occur on occasion when, for example, a
party appeals pro se or when resolution of the case impacts innocent parties such as children.
See, e.g., Chiozza v. Chiozza, 315 S.W.3d 482, 489 (Tenn. Ct. App. 2009) (noting that the
briefing requirements are more likely to be waived “in cases involving domestic relations
where the interests of children are involved”); Word v. Word, 937 S.W.2d 931, 932 n.1
(Tenn. Ct. App. 1996) (addressing the merits of the appeal, despite failure to include
statement of the issues, but affirming the majority of the trial court’s rulings because there
was no transcript of the evidence). Here, it appears that the issues regarding the children have
long since been resolved and the only issues remaining concern squabbles among adults
regarding financial matters. Accordingly, this is not the appropriate case to waive this Court’s
well-settled briefing requirements. Accordingly, Mother’s Issues 1 through 7 are deemed
waived for her failure to construct a legal argument or cite any relevant authority for those
issues. See Newcomb, 222 S.W.3d at 401.
Turning to Mother’s Issue 8, attorney’s fees, Mother cites two cases demonstrating
the standard of review for this issue. See Wilder v. Wilder, 66 S.W.3d 892 (Tenn. Ct. App.
2001); Storey v. Storey, 835 S.W.2d 593 (Tenn. Ct. App. 1992). Specifically, Mother
concedes that the trial court’s decision regarding attorney’s fees is reviewed under an abuse
of discretion standard. Wilder, 66 S.W.3d at 894; Storey, 835 S.W.2d at 597. Mother
provides no law pertaining to her argument that the trial court abused its discretion in its
award of attorney’s fees. Indeed, in neither case cited by Mother did this Court rule that a
trial court abused its discretion in finding that requested attorney’s fees were excessive.
Wilder, 66 S.W.3d at 894 (holding that the trial court erred in awarding a party any attorney’s
fees); Storey, 835 S.W.2d at 597 (affirming the trial court’s award of attorney’s fees). Under
these circumstances, we will soldier on to consider Mother’s argument regarding the award
of attorney’s fees, taking into account the limitations caused by her brief’s deficiencies.
See Pandey v. Shrivastava, No. W2012-00059-COA-R3-CV, 2013 WL 657799, at *5 (Tenn.
Ct. App. Jan. 24, 2013) (noting that, despite deficiencies in the record, we are sometimes able
to “soldier on” to review a case upon its merits, where the issues are sufficiently clear).
(....continued)
record, thirty-nine transcripts of evidence, twenty-one depositions, and 128 exhibits. In sum, the record totals
136 volumes.
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Standard of Review
As previously discussed, we review the trial court’s ruling on attorney’s fees under
an abuse of discretion standard. See, e.g., Owens v. Owens, 241 S.W.3d 478, 496 (Tenn. Ct.
App. 2007). According to the Tennessee Supreme Court:
The trial court’s determination of a reasonable attorney’s fee is
‘a subjective judgment based on evidence and the experience of
the trier of facts,’ United Med. Corp. of Tenn., Inc. V.
Hohenwald Bank & Trust Co., 703 S.W.2d 133, 137 (Tenn.
1986), and Tennessee has ‘no fixed mathematical rule’ for
determining what a reasonable fee is. Killingsworth v. Ted
Russell Ford, Inc., 104 S.W.3d 530, 534 (Tenn. Ct. App. 2002).
Accordingly, a determination of attorney’s fees is within the
discretion of the trial court and will be upheld unless the trial
court abuses its discretion. Kline v. Eyrich, 69 S.W.3d 197, 203
(Tenn. 2002); Shamblin v. Sylvester, 304 S.W.3d 320, 331
(Tenn. Ct. App. 2009). We presume that the trial court’s
discretionary decision is correct, and we consider the evidence
in the light most favorable to the decision. Henderson v. SAIA,
Inc., 318 S.W.3d 328, 335 (Tenn. 2010); Keisling v. Keisling,
196 S.W.3d 703, 726 (Tenn. Ct. App. 2005). The abuse of
discretion standard does not allow the appellate court to
substitute its judgment for that of the trial court, Williams v.
Baptist Mem’l Hosp., 193 S.W.3d 545, 55 (Tenn. 2006); Myint
v. Allstate Ins. Co., 970 S.W.2d 920, 927 (Tenn. 1998), and we
will find an abuse of discretion only if the court “applied
incorrect legal standards, reached an illogical conclusion, based
its decision on a clearly erroneous assessment of the evidence,
or employ[ed] reasoning that causes an injustice to the
complaining party. Konvalinka v. Chattanooga-Hamilton Cnty.
Hosp. Auth., 249 S.W.3d 346, 358 (Tenn. 2008); see also Lee
Med., Inc. v. Beecher 312 S.W.3d 515, 524 (Tenn. 2010).
Wright ex rel. Wright v. Wright, 337 S.W.3d 166, 176 (Tenn. 2011).
Discussion
Authority to Award Attorney’s Fees
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Typically, Tennessee courts follow the American rule regarding attorney’s fees and
require litigants to pay their own attorney’s fees unless there is a statute or contractual
agreement15 providing otherwise. Taylor v. Fezell, 158 S.W.3d, 359 (Tenn. 2005) (citing
State v. Brown & Williamson Tobacco Corp., 18 S.W.3d 186, 194 (Tenn. 2000)). Tennessee
Code Annotated Section 36-5-103(c)16 provides a statutory mechanism for the recovery of
attorney’s fees in certain situations. Section 36-5-103(c), in relevant part, provides:
[T]he spouse or other person to whom custody of the child, or
children, is awarded may recover from the other spouse
reasonable attorney fees incurred in enforcing any decree for
alimony and/or child support, or in regard to any suit or action
concerning the adjudication of the custody or the change in
custody of any child, or children, of the parties, both upon the
original divorce hearing and at any subsequent hearing, which
fees may be fixed and allowed by the court, before whom such
action or proceeding is pending, in the discretion of such court.
Tenn. Code Ann. § 36-5-103(c). Thus, Tennessee Code Annotated Section allows a party to
recover his or her “reasonable and necessary attorney’s fees in cases involving child support
modification” and custody. Blankenship v. Cox, No. M2013-00807-COA-R3-CV, 2014 WL
1572706, at *16 (Tenn. Ct. App. April 17, 2014) (citing Huntley v. Huntley, 61 S.W.3d 329,
341 (Tenn. Ct. App. 2001).).
Although subsection (c) appears to be limited to enforcing any decree for “alimony
and/or child support, or . . . in regard to any suit or action concerning . . . custody,” the statute
has been applied to awards of attorney’s fees to parties required to defend petitions to modify
visitation. See, e.g., Pounders v. Pounders, No. W2010-01510-COA-R3-CV, 2011 WL
3849493, at *4 (Tenn. Ct. App. 2011); Demonbreun v. Demonbreun, No. M2004-02105-
COA-R3-CV, 2005 WL 3555545, at *8 (Tenn. Ct. App. Dec. 28, 2005) (opining that an
award was authorized under the statute because visitation is “an obvious aspect of custody”);
see also Taylor v. Fezell, 158 S.W.3d 352 (Tenn. 2005) (finding an award of attorney’s fees
appropriate when father sought to alter his parenting time). Furthermore, Father does not
argue that Wife is not entitled to rely on Tennessee Code Annotated Section 36-5-103(c).
15
We are unable to determine whether the parties made an agreement regarding attorney’s fees
when they divorced because the record on appeal does not include the parties’ marital dissolution agreement.
Thus, our Opinion deals only with the award of attorney’s fees pursuant to statute.
16
Interestingly, Mother’s brief does not refer to this statute or any other authority that would
permit her to seek attorney’s fees.
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Accordingly, we assume that Mother could rely on Tennessee Code Annotated Section 36-5-
103(c) in seeking an award of attorney’s fees. The question remains, however, as to whether
the trial court abused its discretion in finding that Mother’s requested attorney’s fees were
not reasonable and necessary. See Echols v. Echols, E2006-02319-COA-R3-CV, 2007 WL
1756711, at *7 (Tenn. Ct. App June 19, 2007) (equating reasonableness with a finding that
fees were not excessive: “In all events, any attorney’s fees awarded must be reasonable and
not excessive.”).
Amount of Fees Awarded
Both Mother and Father challenge the amount of attorney’s fees the trial court
awarded to Mother. As previously discussed, Mother incurred over $350,000.00 in legal
expenses, all of which she requested reimbursed by Father. Of the more than the $350,000.00
requested by Mother, the trial court awarded her a total of $42,677.50, which includes
compensation for the work performed by Mother’s prior counsel, Mr. Caywood, and Mr.
Caywood’s office. As we perceive it, Mother’s principal argument is that the trial court
abused its discretion when it awarded less than the amount she requested because all of the
fees were necessary to protect the minor children. Specifically, Mother argues, “This Court
must understand that when an attorney is representing two young innocent children . . ., he
or she has a tremendous burden on their [sic] hands. In these [] types of incidents, lives are
on the line. . . . [T]he Chancellor put[] a price on their lives of $12,500[.00] a piece.” She
further provides: “Mother and her counsel acknowledge that the fees have been extremely
large but that is not the fault of Mother. Father is the one who has the substance abuse
problem[.] Father, his attorneys and the Guardian Ad Litem all believe that he is in a
recovering state when he is not.”
A party requesting attorney’s fees carries the burden of establishing a claim for
reasonable attorney’s fees. Wilson Mgmt. Co. v. Star Distribs. Co., 745 S.W.2d 870, 873
(Tenn. 1988).Typically, to carry this burden, the party requesting attorney’s fees produces
an affidavit from the attorney who performed or supervised the work, or provides testimony
from the attorney. Hennessee v. Wood Grp. Enters., Inc., 816 S.W.2d 35, 37 (Tenn. Ct. App.
1991); Miller v. Miller, 336 S.W.3d 578, 587 (Tenn. Ct. App. 2010) (holding that the trial
court abused its discretion when it awarded husband his attorney’s fees despite husband’s
lack of an affidavit outlining the fees). A party opposing the fees request is entitled to cross-
examine the requesting party’s witnesses and to present its own proof. Sherrod v. Wix, 849
S.W.2d 780, 785 (Tenn. Ct. App. 1992); see also Miller, 336 S.W.3d at 587 (holding that the
trial court abused its discretion when it awarded husband his attorney’s fees because wife
lacked an opportunity to cross-examine husband’s proof). It is important to note that the trial
court need not have a “fully developed record of the nature of the services rendered” before
awarding attorney’s fees. Kahn v. Kahn, 756 S.W.2d 685, 696 (Tenn. 1988). This Court will
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not reverse a trial court’s award of attorney’s fees merely because the record does not contain
proof establishing the reasonableness of the fees. Kahn, 69 S.W.3d at 210. The record must
contain evidence that the award of fees was unreasonable before reversal is justified. Id.
However, at a minimum, the record should contain an affidavit containing the attorney’s
hourly rate and time spent on the case. See Miller v. Miller, 336 S.W.3d 578, 587 (Tenn. Ct.
App. 2010).
In Connors v. Connors, 594 S.W.2d 672 (Tenn. 1980), our Supreme Court
summarized the appropriate factors to consider when fixing a reasonable attorney’s fee:
1. The time devoted to performing the legal service.
2. The time limitations imposed by the circumstances.
3. The novelty and difficulty of the questions involved and the
skill requisite to perform the legal service properly.
4. The fee customarily charged in the locality for similar legal
services.
5. The amount involved and the results obtained.
6. The experience, reputation, and ability of the lawyer
performing the legal service.
Id. at 676. Tennessee Rule of Professional Conduct 1.5 includes substantially the same
relevant factors.
In this case, the trial court reduced the Special Master’s recommendation of
$124,824.05 in attorney’s fees to $42,277.50. The trial court justified this reduction by stating
that although “[a] party is entitled to the best representation they [sic] can retain,” the trial
court “does not believe that the vast majority of the fees and costs incurred were reasonable
or necessary for purposes of requiring the opposing party to pay them in their entirety.”
Accordingly, the trial court found that the $37,106.45 in private investigator fees was not
“justified as a transferable expense.” Further, the trial court found that because “Father
continued to defend in spite of an indefensible position,” Mother was entitled to recoup her
fees incurred by prior counsel, totaling $16,277.50, and some of her fees incurred by Mr.
Caywood’s office, totaling $25,000.00.17 Thus, Mother’s total award was $42,277.50.
Mother points to no specific errors in the trial court’s judgment other than the
17
The award of $25,000.00 expressly includes deposition and copy costs.
-18-
reduction in the award attributable to non-attorneys18 and associates. Taking the trial court’s
ruling in the light most favorable to it, we discern no abuse of discretion in the trial court’s
decision. First, the trial court pointed to specific facts justifying the reduction in fees. For
example, Mr. Caywood wrote a letter to Father’s counsel indicating that he would be
prepared for trial shortly after Mother retained him, presumably based on Father’s
condemnatory admissions to his substance abuse. Despite the fact that Mother’s original
attorney believed that the matter was nearing conclusion,19 an opinion that Mr. Caywood
initially shared, Mother and Mr. Caywood proceeded to incur hundreds of thousands of
dollars of additional fees and expenses. Furthermore, even though Father continued to admit
his alcohol and drug use, Mother hired private investigators to follow Father.
In addition, although we have no doubt of Mr. Caywood’s excellent representation,
the results obtained by Mr. Caywood are similar to the settlement offer made by Father’s
prior counsel in 2006. Mr. Caywood admitted that he did not believe Father could comply
with the original settlement offer, and, accordingly, this non-compliance would ultimately
cause his parenting time to be suspended, the exact outcome that Mother desired. Despite
this, Mother did not accept the original settlement offer. Mother continued to incur legal
expenses and attorney’s fees litigating her petition, resulting in a somewhat similar settlement
agreement, wherein Father’s visitation was conditioned on his ability to comply with certain
requirements. While similar results obtained at trial are not always indicative that a fee is
unreasonable, this fact does tend to show that the parties’ positions were not so diametrically
opposed as to require hundreds of thousands of dollars of legal fees to reach an agreement.
Moreover, it appears that much of Mother and Mr. Caywood’s dispute with the GAL
and court-appointed evaluator occurred after the parties had settled the underlying dispute
in this case. Nothing in Mother’s brief indicates why fees related solely to this dispute were
either reasonable or necessary to a resolution of the issues in this case, or should be borne by
Father, when they appear to have had no effect on the ultimate resolution of the case, which
was determined not by the court but by an agreed settlement. Finally, the trial court noted that
18
It is unclear from Mother’s brief whether she also challenges the trial court’s decision not to
order Father to reimburse Mother for any private investigator fees. Specifically, Mother’s Issues Presented
only requests reversal of the trial court’s decision regarding Mr. Caywood’s attorney’s fees. Regardless, we
analyze any fee award pertaining to Mother’s private investigators under an abuse of discretion standard
along with the other legal expenses requested by Mother.
19
At his deposition, Mr. Creech testified that no further investigation was necessary to proceed to
trial because he “had just had a deposition a couple of weeks before, and I think it was pretty clear [Father]
had a drug and alcohol problem, which he was minimizing greatly. So I felt that we were prepared for the
hearing on July 20, 2006.” Despite Father’s admissions, Mother’s counsel stated that “the problem is he
continued to want to have visitation. We could never reach an agreement.”
-19-
Mother’s counsel’s litigation strategy added to the dispute in this case. These facts, along
with Mother’s often duplicative filings against various attorneys and doctors appointed in the
case, demonstrate to this Court that the trial court did not abuse its discretion in declining
Mother’s request for reimbursement for over $350,000.00 in legal expenses.
Still, we disagree with Father that all of Mother’s fees were unreasonable. For
example, Father’s prior counsel indicated by letter that Father had become a “new man”
during one of his attempts at recovery. Thus, there does appear to have been some dispute
as to whether Father was still abusing drugs and alcohol. In addition, Father continually
sought more visitation with the children, despite admitting to abusing alcohol. Father’s
statement from his brief that there is “no difference between the practical effects of the two
orders[, the original settlement order and the final settlement agreement]” is slightly
disingenuous. The original settlement order permits supervised visitation upon Father’s
completion of treatment; however, the settlement agreement actually entered does not permit
visitation, even upon completion of treatment, until the psychologist treating the children
determines it is in the children’s best interest. Consequently, it was reasonable and necessary
for Mother to incur some additional attorney’s fees after Mr. Caywood was retained to
protect her children’s best interests by procuring an order satisfactory to her. However, we
agree with the trial court that “Mother can certainly engage in such a strategy but she must
recognize that she cannot expect the other side to pay for it.” As such, we have also
considered whether the fees were necessary, especially in light of the admissions that Father
could not have complied with the original settlement agreement. We cannot conclude that
the trial court abused its discretion when it ordered Father to pay Mother for at least some of
her incurred legal expenses.
Misconduct as a Bar to Recovery of Attorney’s Fees
In addition to his argument that Mother’s fees were unreasonable, Father argues that
her “litigation crusade of hiring private investigators to find out what she already knew, her
hostility towards all counsel involved, and the unnecessary and unreasonable filings with the
Court . . . were not done in order to protect the Children but was born out of hostility towards
Father.” Father points out that the trial court in its oral ruling specifically cited Mother’s
vexatious litigation strategy and the brusque, accusatory statements of her counsel. Father
acknowledges that the trial court did not award all of the attorney’s fees she sought, but
argues that her fees were not reduced nearly enough to discourage such litigation tactics.
Father argues that: “[D]ue to Mother’s vexatious, bad faith and harassing litigation strategy,
the Court should reverse the award of attorneys’ fees and suit expenses in its entirety.”
Father cites Pizzillo v. Pizzillo, 884 S.W.2d 749 (Tenn. Ct. App. 1994) for the
proposition that when a parent furthers litigation based on hostility toward the other parent,
-20-
and not based on the child’s best interest, the parent’s attorney’s fees should not be awarded.
In Pizzillo, the Court of Appeals held that the “probate court’s award of attorney’s fees and
costs was not just and equitable.” Id. at 757. Opining that “a large portion of the litigation
. . . was brought about by Ms. Pizzillo’s desire to vindicate her position,” id., we determined
that Husband should still pay for a small portion of the work done as he had also contributed
to the ongoing litigation, but that Ms. Pizzillo should be responsible for the majority of her
own expenses. Id. We do not agree with Father that the Court’s holding in Pizzillo justifies
a total bar to Mother’s recovery here. Indeed, although Ms. Pizzillo was determined to have
engaged in vexatious litigation tactics, the Court still concluded that she was entitled to
$1,000.00 to help defray some of her costs.20
Although not cited by either party, we find Andrews v. Andrews, 344 S.W.321 (Tenn.
Ct. App. 2010) consistent with the facts of the case-at-bar. In Andrews, we held that the trial
court did not abuse its discretion when it awarded the wife $186,000.00 of her requested
$302,714.00 in attorney’s fees and awarded her $15,000.00 of her requested $64,786.00 in
discretionary costs. Dr. Andrews, the husband, argued that the trial court abused its discretion
when it partially awarded Ms. Andrews’ fees, “given Wife’s ‘egregious’ litigation strategy.”
Id. at 344. Similar to the case at bar, Dr. Andrews also noted Ms. Andrews’ “long war
against the GAL, and later the [Attorney Ad Litem], unreasonably escalated the legal
expenses in this case” and resulted in Ms. Andrews lodging personal attacks against the
GAL. Also similar to Husband in the instant case, Dr. Andrews pointed out that the trial court
specifically reprimanded Ms. Andrews for her litigation strategy. The Andrews Court
indicated that Tennessee law does allow a trial court to consider a party’s decision to engage
in litigation tactics calculated to produce delay and increase costs when it considers whether
awarding attorney’s fees is appropriate. See, e.g., Hall v. Hall, No. E2007-02564-COA-R3-
CV, 2008 WL 4613961, at *1 (Tenn. Ct. App. Oct. 15, 2008) (citing Bauer v. Bauer, No.
M2001-00266-COA-R3-CV, 2002 WL 256802, at *2 (Tenn. Ct. App. Feb. 22, 2002); Long
v. Long, 957 S.W.2d 825, 829 (Tenn. Ct. App. 1997); Gilliam v. Gilliam, 776 S.W.2d 81,
86–87 (Tenn. Ct. App. 1988)) (upholding award of attorney’s fees against husband because
of his litigation tactics).
Although it observed that “Husband’s arguments regarding Wife’s litigation choices
are not without merit,”21 the Andrews Court explained that the abuse of discretion standard
20
The probate court originally ordered Mr. Pizzillo to pay $6,662.87 in discretionary fees and
$5,662.50 for Ms. Pizzillo’s legal expenses. Id. at 757.
21
The major dispute in both Andrews and this case involved a GAL. According to Andrews:
“Early in the litigation, Wife adopted a pugnacious posture vis-a-vis a GAL who was acting at the behest of
the court. It cannot be said that either Wife or her attorneys sought to minimize conflict. Her financial
(Continued....)
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did not permit it to substitute its judgment of the record on appeal for the judgment of the
trial judge who presided over the case. Andrews, 344 S.W.3d at 348. As such, Ms. Andrews,
although the trial court found she had engaged in vexatious litigation tactics, was still able
to collect some of her reasonable attorney’s fees. Indeed, the trial court in the case at bar had
sufficient justification to award a portion of Mother’s requested attorney’s fees. After
reviewing all of the voluminous record and the trial court’s order, we cannot conclude that
the trial court abused its discretion by declining Father’s request to bar Mother’s recovery.
Frivolous Appeal Damages
Finally, we address Fathers’s request for frivolous appeal damages. Father argues he
is entitled to frivolous appeal damages based on Mother’s “appeal of the interlocutory orders
arising out of the Grandparents’ Petition to Intervene.” Tennessee Code Annotated Section
27-1-122 states:
When it appears to any reviewing court that the appeal from any
court of record was frivolous or taken solely for delay, the court
may, either upon motion of a party or of its own motion, award
just damages against the appellant, which may include but need
not be limited to, costs, interest on the judgment, and expenses
incurred by the appellee as a result of the appeal.
The decision to award damages for the filing of a frivolous appeal rests solely in the
discretion of this Court. See Banks v. St. Francis Hosp., 697 S.W.2d 340, 343 (Tenn. 1985).
“A frivolous appeal is one that is ‘devoid of merit,’ or one in which there is little prospect
that it can ever succeed.” Indus. Dev. Bd. v. Hancock, 901 S.W.2d 382, 385 (Tenn. Ct. App.
1995) (citing Combustion Eng’g, Inc. v. Kennedy, 562 S.W.2d 202 (Tenn. 1978)).
As noted above, the issues raised by Mother on appeal are reviewed for an abuse of
discretion, a particularly high standard of review. Williams v. Williams, 286 S.W.3d 290,
297–98 (Tenn. Ct. App. 2008). We have determined that the trial court’s award to Mother
was justified for several reasons. We have also determined that aspects of Mother’s appeal
were completely waived due to her failure to cite any authority or otherwise comply with the
Tennessee Rules of Appellate Procedure. Such “[f]ailure to cite any evidence or rule of law
entitling the appealing party to relief is one indicator that the appeal may be frivolous.”
Jackson v. Aldridge, 6 S.W.3d 501, 504 (Tenn. Ct. App. 1999); see Wells v. Sentry Ins. Co.,
(....continued)
positions were consistently excessive and she resisted compromise on even minor parenting issues.”
Andrews, 344 S.W.3d at 345–46.
-22-
834 S.W.2d at 938–39. Because Father was forced to respond to Mother’s issues numbers
1 through 7, despite her waiver of such issues due to deficient briefing, we find that Father
is entitled to frivolous appeal damages for his expenses incurred responding to these waived
issues. We remand this matter to the trial court to evaluate Father’s fees incurred responding
to issues 1 through 7.
All remaining issues are pretermitted.
Conclusion
The judgment of the Shelby County Chancery Court is affirmed and this cause is
remanded for further proceedings consistent with this Opinion and for the determination of
Father’s reasonable and necessary attorney’s fees incurred in responding to waived issues in
this appeal. Costs of this appeal are taxed to Appellant Jennifer Furnas Coleman and her
surety.
_________________________________
J. STEVEN STAFFORD, JUDGE
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