Kevin Campbell v. Klil, Inc. ( 2022 )

08/29/2022
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs July 1, 2022
KEVIN CAMPBELL v. KLIL, INC. ET AL.
Appeal from the Circuit Court for Williamson County
No. 2020-CV-393 James G. Martin, III, Judge
___________________________________
No. M2021-00947-COA-R3-CV
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Homeowner appeals the trial court’s decision to not award attorney’s fees after an action
to enforce a construction contract. Trial court found the provision to be unenforceable
based on its undefined “where applicable” language. Applying the rules of contract
construction, we conclude that this provision is enforceable and entitles the homeowner to
an award of reasonable attorney’s fees in connection with this action. We reverse and
remand for further proceedings to determine reasonable attorney’s fees.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed and
Remanded
J. STEVEN STAFFORD, P.J., W.S., delivered the opinion of the court, in which FRANK G.
CLEMENT, JR., P.J., M.S., and THOMAS R. FRIERSON, II, J., joined.
Michele McGill, Franklin, Tennessee, for the appellant, Kevin Campbell.
Ben Powers, Franklin, Tennessee, for the appellees, KLIL, Inc., Kemp Outdoor Solutions,
Inc., and James R. Kemp.
OPINION
I. FACTUAL AND PROCEDURAL HISTORY
This appeal stems from a breach of contract action, with the only remaining issue
involving the interpretation of a contractual provision regarding attorney’s fees.
In August 2017, homeowner Kevin Campbell (“Mr. Campbell”) contracted with
James Kemp, as owner of KLIL, Inc. d/b/a Kemp Outdoor Solutions, Inc., (collectively,
“Appellee”)1 for an outdoor remodeling project at Mr. Campbell’s home. The contract
included an attorney’s fee provision: “Should Contractor or Customer be required to
engage the services of an attorney in connection with this Contract, Contractor or Customer
shall be entitled to reasonable attorney’s fees or collection fees, where applicable.” Neither
party disputes that Appellee was the drafter of the contract. Work on the project began in
October 2017 and was to include installation of a covered patio, fireplace and outdoor
kitchen, and various electrical and plumbing features.
As the construction progressed, Mr. Campbell alerted Appellee to various
workmanship and construction problems, culminating in September 2018 when water
began leaking into Mr. Campbell’s dining room. Efforts were made by Appellee to address
Mr. Campbell’s complaints, but the parties could not fully resolve the issues. As a result,
Mr. Campbell filed a civil warrant for breach of warranty against Appellee in the General
Sessions Court for Williamson County in December 2019. Judgment was entered for
Appellee. Mr. Campbell then appealed the matter to the Circuit Court for Williamson
County (“the trial court”) in August 2020 and amended his complaint to include consumer
protection, breach of contract, and breach of warranty causes of action, as well as a request
for attorney’s fees under both the consumer protection statute and the contract.
At trial on May 20, 2021, the trial judge ruled from the bench, finding a failure by
Appellee to complete the contract in a workmanlike manner and unfair and deceptive
practices under the Consumer Protection Act, but no severe deception or bad faith. No
statutory attorney’s fees were awarded. Judgment was entered in favor of Mr. Campbell in
an order entered July 1, 2021, with the issue of contractual attorney’s fees reserved pending
further briefing.2
After reviewing the parties’ briefs on the matter, the trial court found the term
“where applicable” in the fee provision to be undefined so as to “not create a right to
recover attorney’s fees under the facts and circumstances of this case,” and issued an order
denying Mr. Campbell’s request for attorney’s fees on July 19, 2021. Mr. Campbell filed
a notice of appeal to this Court on August 20, 2021.
1
The Defendants/Appellees are arguably separate entities. However, the record in this case does
not clearly distinguish between use of “Kemp” as the collective defendants and Mr. Kemp individually.
Because the Defendants/Appellees do not appear to assert in this appeal that they should be treated as
disparate for liability purposes, they have retained the same counsel and submitted only collective
pleadings, and the trial court found Mr. Kemp personally liable for the damages awarded to Mr. Campbell
under Tennessee Code Annotated section 62-6-136(c), we will use the term “Appellee” to refer to Mr.
Kemp and his businesses throughout for ease of reference.
2
The trial court “recognize[d] that the Contact contains an attorney[’s fee] provision and that the
provision contains the word shall” and that precedent requires enforcement of such provisions. However,
the provision at issue here ends with the words “where applicable,” and the trial court “question[ed] the
meaning and impact of this language on the Court[’]s authority to award fees.”
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II. ISSUE PRESENTED
Mr. Campbell raises for review only the issue of “whether the trial court erred in
denying Mr. Campbell’s claim for an award of attorney fees pursuant to the attorney fee
provision contained in the parties’ contract.”3 No issues for appeal have been raised
by Appellee.
III. STANDARD OF REVIEW
Because this case involves the interpretation and enforcement of a written contract,
the following principles are applicable:
In ‘resolving disputes concerning contract interpretation, our task is
to ascertain the intention of the parties based upon the usual, natural, and
ordinary meaning of the contractual language.’ Guiliano v. Cleo, Inc., 995
S.W.2d 88, 95 (Tenn. 1999). This determination of the intention of the parties
is generally treated as a question of law because the words of the contract are
definite and undisputed, and in deciding the legal effect of the words, there
is no genuine factual issue left for a jury to decide. 5 Joseph M.
Perillo, Corbin on Contracts, § 24.30 (rev. ed. 1998); Doe v. HCA Health
Services of Tenn., Inc., 46 S.W.3d 191, 196 (Tenn. 2001).
A court’s initial task in construing a contract is to determine whether
the language of the contract is ambiguous. Once found to be ambiguous, a
court applies established rules of construction to determine the parties’ intent.
‘Only if ambiguity remains after the court applies the pertinent rules of
construction does [the legal meaning of the contract] become a question of
fact’ appropriate for a jury. Smith v. Seaboard Coast Line R.R. Co., 639
F.2d 1235, 1239 (5th Cir. 1981).
Planters Gin Co. v. Fed. Compress & Warehouse Co., 78 S.W.3d 885, 890 (Tenn. 2002).
IV. ANALYSIS
Tennessee follows the American Rule regarding attorney’s fees. Cracker Barrel
Old Country Store, Inc. v. Epperson, 284 S.W.3d 303, 308 (Tenn. 2009). The Rule
“reflects the idea that public policy is best served by litigants bearing their own legal fees
regardless of the outcome of the case.” House v. Est. of Edmondson, 245 S.W.3d 372, 377
(Tenn. 2008). Under the American Rule, a party may recover attorney’s fees “only if: (1)
a contractual or statutory provision creates a right to recover attorney fees; or (2) some
3
Because Mr. Campbell has not appealed the denial of fees under the consumer protection statutes,
we do not address fees under that provision.
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other recognized exception to the American rule applies, allowing for recovery of such fees
in a particular case.” Cracker Barrel, 284 S.W.3d at 308.
This case involves the first scenario—a contractual provision that Mr. Campbell
asserts entitles him to attorney’s fees. To reiterate, the attorney’s fee provision contained
in the parties’ contract provides as follows: “Should Contractor or Customer be required to
engage the services of an attorney in connection with this Contract, Contractor or Customer
shall be entitled to reasonable attorney’s fees or collection fees, where applicable.” The
dispute in this case goes to the basic enforceability of this provision under Tennessee law.
Because of the presumption against attorney’s fees applicable under the American
Rule, attorney’s fees may only be awarded under a contract “when [the] contract
specifically or expressly provides for the recovery of attorney fees.” Id. at 309. The cases
that deal with this issue often turn on whether the language in the contract specifically
references an entitlement to attorney’s fees, rather than costs in general. Compare id. at
307 (finding the provision “all costs and expenses of any suit or proceeding shall be
assessed against the defaulting party” not specific enough to award attorney’s fees);
Kultura, Inc. v. S. Leasing Corp., 923 S.W.2d 536, 537 (Tenn. 1996) (finding “any losses”
not to specifically encompass attorney’s fees); and Pinney v. Tarpley, 686 S.W.2d 574,
578 (Tenn. Ct. App. 1984) (finding an agreement for the parties to hold each other harmless
for any failure to pay their respective debts insufficient to support the awarding of fees for
litigation to enforce the agreement); with Eberbach v. Eberbach, 535 S.W.3d 467, 480
(Tenn. 2017) (allowing fees based on a provision reading: “In the event it becomes
reasonably necessary for either party to institute legal proceedings to procure the
enforcement of any provision of this Agreement, the prevailing party shall also be entitled
to a judgment for reasonable expenses, including attorney’s fees, incurred in prosecuting
the action”); Taylor v. Fezell, 158 S.W.3d 352, 360 (Tenn. 2005) (allowing fees where the
provision stated that “[s]hould either party incur any expenses or legal fees as a result of
the breach of any portion of this [agreement] by the other party, the defaulting party shall
be responsible for all reasonable attorney’s fees and suit expenses to the non-defaulting
party”); and Harris v. 4215 Harding Rd. Homeowners Ass’n, 74 S.W.3d 359, 361 (Tenn.
Ct. App. 2001) (allowing fees in a contract providing “all costs and expenses, including a
reasonable attorney’s fee, are recoverable in an action to enforce or defend the lien given
the association to secure the payment of dues”).
However, direct reference to “attorney’s fees” is not always necessary. See Raines
Bros. v. Chitwood, No. E2013-02232-COA-R3-CV, 2014 WL 3029274 (Tenn. Ct. App.
July 3, 2014) (finding that “the reference to litigation in combination with the language,
‘fees incurred,’ clearly and unambiguously demonstrate[d] that ‘fees incurred’ would
include attorney’s fees,” despite the omission of the possessive “attorney’s” before the
word “fees” in the plain language of the provision). In any case, the failure to specifically
reference attorney’s fees is not at issue here, as the provision in the parties’ contract
specifically mentions attorney’s fees.
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Instead, Appellee argues that the provision contained in the parties’ agreement does
not specify under what circumstances the entitlement to attorney’s fees would be
applicable and is thus unenforceable. Appellee relies on Boiler Supply Co. v. Lunn Real
Estate Investments, Inc., No. 01A01-9605-CH-00246, 1998 WL 684599 (Tenn. Ct. App.
July 1, 1998), for the argument that (1) the contract must specifically reference not only
the right to recover attorney’s fees but also the circumstances under which fees are capable
of being sought, and (2) the action for fees must be brought under only those circumstances
set forth in the contract. See id. at *3 (“Where a contract contains a provision allocating the
responsibility for paying legal expenses, the obligation to pay legal expenses is limited to
only those instances provided for in the contract.” (citing Chicago Southshore & S. Bend
R.R. v. Itel Rail Corp., 658 N.E.2d 624, 634 (Ind. Ct. App. 1995))).
In Boiler Supply, the court was interpreting a limited attorney’s fee provision:
If, on account of any breach or default by Lessor or Lessee of their
obligations to any of the parties hereto, under the terms, covenants and
conditions of this Lease, it shall become necessary for any of the parties
hereto to employ an attorney to enforce or defend any of their rights or
remedies hereunder, and should such party prevail, it shall be entitled to any
reasonable attorneys’ fees incurred in such connection.
1998 WL 684599, at *2 n.4 (emphasis added). Considering this language, the court
concluded that the contract only allowed attorney’s fees in the event that the prevailing
party demonstrated either a breach or a default by the other party. Id. at *3. Because the
contract provided that only the lessee could be in default, the only way in which the
plaintiff-lessee could show that it was entitled to attorney’s fees was by proving that the
defendant-lessor breached the lease. Id. But while the plaintiff-lessee had prevailed in
obtaining a declaratory judgment that the leases had expired, it had not shown that the
defendant-lessor was in breach of the contracts. Id. at *4. Thus, the condition precedent to
an award of fees under the contract was not met and the plaintiff-lessee was not entitled to
attorney’s fees under the specific language of the provision at issue.
As we perceive it, Appellee does not argue that the attorney’s fee provision in the
case-at-bar is similarly limited. Instead, it contends that because the attorney’s fee
provision is not limited at all— that is, that it does not specify the precise circumstances
where attorney’s fees may be awarded—the provision is unenforceable. Specifically, in
their brief to the trial court on this issue, Appellee argued that the provision “is not
sufficiently specific nor does it expressly state the instances wherein attorney’s fees or
collection fees are to be awarded.” According to Appellee, to be enforceable, the contract
would need more detail as to “when the attorney’s fees are applicable, when collection fees
are applicable, when attorney’s fees are applicable instead of collection fees, when
collection fees are applicable instead of attorney’s fees, or when attorney’s fees or
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collection fees are applicable at all.” Appellee further argued in the trial court that this lack
of specificity renders the attorney’s fee provision wholly unenforceable.
It is true that a contract may be too vague to be enforced. In general, “[t]o be
enforceable, a contract must result from a meeting of the minds, be based on sufficient
consideration, and be sufficiently definite.” Cadence Bank, N.A. v. The Alpha Tr., 473
S.W.3d 756, 774 (Tenn. Ct. App. 2015) (citing Peoples Bank of Elk Valley v. ConAgra
Poultry Co., 832 S.W.2d 550, 553 (Tenn. Ct. App. 1991)). “If the essential terms of an
alleged agreement are so uncertain that there is no basis for deciding whether the agreement
has been kept or broken, there is no contract.” Peoples Bank, 832 S.W.2d at 553–554
(citing Restatement (2d) Contracts, § 33 (1981)). “It is a fundamental rule of law that an
alleged contract which is so vague, indefinite and uncertain as to place the meaning and
intent of the parties in the realm of speculation is void and unenforceable.” Four Eights,
L.L.C. v. Salem, 194 S.W.3d 484, 486 (Tenn. Ct. App. 2005) (quoting United Am. Bank
of Memphis v. Walker, 1986 WL 11250, at *2 (Tenn. Ct. App. 1986)).
The disputed portion of the attorney’s fees provision at issue here surrounds the
inclusion of the statement that the fees are to be awarded “where applicable.” Under Mr.
Campbell’s interpretation of this portion of the provision, “where applicable” merely
indicates that attorney’s fees or collections fees should be awarded when the party seeking
the fees was successful. In contrast, Appellee argues that Mr. Campbell’s interpretation
results in the court going beyond the contract as written to add to the parties’ contract the
necessary circumstances under which the fees may be awarded, i.e., to the prevailing party.
As written, Appellee contends that the phrase “where applicable” is so vague as to have no
meaning and should not be held sufficient to entitle Mr. Campbell to attorney’s fees.
Neither party cites any cases involving language similar to the contract at issue. A
similar argument was, however, raised in Raines Brothers v. Chitwood. See 2014 WL
3029274, at *12. In that case, the defendant argued that the language of the parties’ contract
was “insufficient” to provide for an award of attorney’s fees. Like many cases, the problem
with the language was the omission of the terms “legal” or “attorney’s” to describe the fees
allowed thereunder. But the court held that this omission did not invalidate the parties’
agreement. Id. First, following the principle that contractual provisions should be
considered in their entirety rather than as isolated words, the court noted that provision
specifically referenced litigation prior to the “fees incurred” language. Id. (stating that the
court was “[r]eviewing this provision in its entirety”); cf. Pitt v. Tyree Org. Ltd., 90 S.W.3d
244, 253 (Tenn. Ct. App. 2002) (“[T]o properly construe an agreement, we are not allowed
to take words in isolation, but must construe the instrument as a whole.”). Next, the court
considered the fact that the language in the provision was much more specific than other
cases in which we have held that a contract did not sufficiently provide for fee-shifting.
Raines Bros., 2014 WL 3029274, at *12 (comparing the provision to “costs and expenses
of any suit,” “any cost,” or “any cost, loss, damage, or expense”). Thus, the court looked
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to the rules of contract construction to hold that the agreement was clear, unambiguous,
and entitled the plaintiff to attorney’s fees.
The court came to a similar conclusion in Parker v. Brunswick Forest Homeowners
Ass’n, No. W2018-001760-COA-R3-CV, 2019 WL 2482351 (Tenn. Ct. App. June 13,
2019), perm. app. denied (Tenn. Sept. 18, 2019). In that case, the plaintiff homeowner filed
an action against his homeowner’s association primarily to avoid paying assessments. The
homeowner’s association both defended against the plaintiff’s claims and filed a
counterclaim for the unpaid assessments. The trial court ruled in favor of the defendant
homeowner’s association and awarded it fees associated with both the defense of the
homeowner’s action and the prosecution of the counterclaim. On appeal, the plaintiff
homeowner argued that the trial court erred because attorney’s fees incurred by the
homeowner’s association in defending against his action were not permitted by the
covenants at issue. In particular, the covenants provided that “[t]he Association may bring
an action at law against” a homeowner in the event that the assessments are unpaid, and
that “the Association may collect from the said [m]ember interest, costs and reasonable
attorneys’ fees.” Id. at *3. While the homeowner agreed that a small portion of the fees
awarded did fit under this language, he argued that most of the fees were incurred in
defending his action against the homeowner’s association and should not be allowed.
The Court of Appeals disagreed. Importantly to this case, we upheld the full award
of fees to the defendant homeowner’s association despite the attorney’s fee provision being
“both broad and vague.” Id. at *10. But this vaguery was not sufficient to invalidate the
trial court’s award of fees, as the court was able to discern its meaning by considering the
contract as a whole and the fact that the purpose of the plaintiff homeowner’s lawsuit was
to avoid paying the assessments. Because the defendant homeowner’s association was
required to defend and prevail in its defense of the homeowner’s claims in order to prevail
on its claim to collect on its assessments, we held that the covenants allowed the
homeowner’s association to recover its full fees. Thus, Parker indicates that an attorney’s
fees provision may be enforced even where broad and somewhat vague, when we are able
to glean the parties’ clear intent following the consideration of the rules of contract
construction. Cf. Fisher v. Revell, 343 S.W.3d 776, 781 (Tenn. Ct. App. 2009) (“A
contract, however, is not ambiguous simply because it is unclear in parts.”).
Following the lead of both Raines Brothers and Parker, we turn to consider the
rules of contract construction that are applicable in this case. These principles, however,
support both parties’ arguments in some respects. On the one hand, we are not permitted
to re-write the parties’ contract. See St. George Holdings LLC v. Hutcherson, 632 S.W.3d
515, 526 (Tenn. Ct. App. 2020). And while some missing terms may be supplied by the
court with reference to “the situation of the parties, the business to which it relates and its
subject matter,” Minor v. Minor, 863 S.W.2d 51, 54 (Tenn. Ct. App. 1993), we generally
have stricter standards when it comes to attorney’s fees provisions. See generally Cracker
Barrel, 284 S.W.3d at 310 (noting that Tennessee courts have “adhered strictly to the
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guiding principle[s] [of] the American rule”). As such, we have found no Tennessee law
in which a court was permitted to supply missing terms under similar circumstances to
uphold an attorney’s fees provision. Still, we have also found no cases in which this Court
has held that some uncertainty as to a fee-shifting provision was sufficient to invalidate
such a provision when it clearly stated that it provided for “attorney’s fees” to one party.
Cf. Gatlinburg Roadhouse Invs., LLC v. Porter, No. E2011-02743-COA-R3-CV, 2012
WL 6643809, at *11 (Tenn. Ct. App. Dec. 20, 2012) (reversing the trial court’s refusal to
award the prevailing party attorney’s fees under a clear provision in the contract when other
parts of the contract were ambiguous).
Other principles of contract interpretation do, however, support Mr. Campbell’s
position. For one, the principles of contract interpretation “militate[]
against interpreting a contract in a way that renders a provision superfluous.” Lovett v.
Cole, 584 S.W.3d 840, 861 (Tenn. Ct. App. 2019). Moreover, “[i]t is the duty of the courts
to construe written contracts, if their meaning be in doubt, so as to give them effect rather
than destroy them” Thompson, Breeding, Dunn, Creswell & Sparks v. Bowlin, 765
S.W.2d 743, 745 (Tenn. Ct. App. 1987) (quoting Scott v. McReynolds, 255 S.W.2d 401,
405 (Tenn. Ct. App. 1952)). Finally, we note that when a contract is ambiguous, it will be
“construed against the drafter of the contract.” Kiser v. Wolfe, 353 S.W.3d 741, 748 (Tenn.
2011) (citing Allstate Ins. Co. v. Watson, 195 S.W.3d 609, 612 (Tenn. 2006)).
In this case, we must conclude that the principles in Mr. Campbell’s favor win out
over the principles in Appellee’s favor. Here, the parties’ contract clearly intended to award
not just costs, but also attorney’s fees in certain situations. As such, the provision at issue
clears the hurdle that causes a stumble in many attorney’s fee requests. See, e.g., Cracker
Barrel, 284 S.W.3d at 310; Kultura, 923 S.W.2d at 537 (finding “any losses” not to
specifically encompass attorney’s fees); Pinney, 686 S.W.2d at 578. And because the
contract clearly expresses an intention to award attorney’s fees, to adopt Appellee’s
interpretation would be to destroy that intent. Bowlin, 765 S.W.2d at 745.
Of course, we agree that the provision at issue here is not overly detailed as to the
specific circumstances under which attorney’s fees should be allowed, as it is not defined
within the fees provision or elsewhere in the seven-paragraph contract. Perhaps this lack
renders the attorney’s fee provision overly broad. Parker, 2019 WL 2482351, at *10. But
the only law cited by Appellee as support for its argument did not involve an overly broad
attorney’s fee provision, but a narrow one that did not encompass the specific
circumstances at issue. See Boiler Supply, 1998 WL 684599, at *4. And because the parties
chose to include this provision as one of the only seven total paragraphs contained in the
parties’ contract, were we to invalidate it, we would be rendering superfluous a large
portion of the parties’ agreement. See Lovett, 584 S.W.3d at 861.
Moreover, we cannot conclude that the provision provides no guidance as to the
circumstances under which attorney’s fees may be awarded, as Appellee claims. Here, the
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circumstances that are expressly required under the contract—that the customer be required
to engage the services of an attorney in connection with the contract—have been met: Mr.
Campbell hired an attorney to sue Appellee for breach of contract. If Appellee had intended
to include more specific conditions on the grant of fees, he could have included it in this
contract, but he did not.4 Moreover, to hold that the inclusion of the term “where
applicable” somehow injected insurmountable uncertainty into the contract is simply not
reasonable, as it would destroy the parties’ clear intent to provide for fee-shifting. Bowlin,
765 S.W.2d at 745. And as Appellee argues, “non-specificity is not a synonym for
ambiguity.” Cf. Fisher, 343 S.W.3d at 781 (holding that a contract is ambiguous only
“when it is susceptible to two or more reasonable constructions”) (emphasis added).
Additionally, to the extent that Appellee argues that the lack of a “prevailing party”
condition on the award of fees creates too much uncertainty to be enforced, Appellee cites
no law that states that such a condition is an absolute prerequisite to enforcement of an
attorney’s fees provision. Indeed, from our research, Tennessee law includes no such
requirement. See Package Exp. Ctr., Inc. v. Maund, No. E2010-02187-COA-R3-CV,
2011 WL 3241891, at *3 (Tenn. Ct. App. July 29, 2011) (noting that a party was previously
awarded attorney’s fees under a fee-shifting provision that did not require it to be a
prevailing party in litigation); Tri-State Home Imp. v. Starks, No. W2006-01556-COA-
R3-CV, 2007 WL 1153119, at *5 (Tenn. Ct. App. Apr. 19, 2007) (enforcing a fee-shifting
provision that is conditioned on default, rather than prevailing in a litigation); Harris, 74
S.W.3d at 361 (allowing attorney’s fees to the prevailing party in the face of a provision
not including such language). Still, to the extent that the American Rule should be
interpreted as allowing an exception only that “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,” Cookeville Gynecology & Obstetrics, P.C. v. Southeastern Data Sys.,
Inc., 884 S.W.2d 458, 463 (Tenn. Ct. App. 1994), that requirement is clearly met here
where there can be no dispute that Mr. Campbell prevailed in his action to enforce the
parties’ contract against Appellee.
Furthermore, even if we were to conclude that the inclusion of the “where
applicable” language and/or the failure to expressly condition fees on success created an
ambiguity, we agree with Mr. Campbell that because Appellee drafted this contract, it
should not benefit from the vagueries that it created. Kiser, 353 S.W.3d at 748. To be sure,
Appellee has not argued that an attorney’s fee provision of this type without any additional
limitations is so broad as to be unconscionable. But even if unconscionability were an issue
in this case, the doctrine generally only allows a party to be relieved of a contract that it
did not draft. See, e.g., Philpot v. Tenn. Health Mgmt., Inc., 279 S.W.3d 573, 579 (Tenn.
Ct. App. 2007) (holding that “substantive unconscionability [] refers to contract terms
which are unreasonably favorable to the other party” (citing Elliott v. Elliott, No. 87-276-
II, 1988 WL 34094, at *4 (Tenn. Ct. App. April 13, 1988) (emphasis added))). And as
4
See infra, for additional discussion of this issue
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Appellee emphasizes in support of its arguments, parties are generally not relieved of their
obligations simply because they entered into unwise contracts. See Vargo v. Lincoln Brass
Works, Inc., 115 S.W.3d 487, 492 (Tenn. Ct. App. 2003) (holding that courts “will not
relieve parties of their contractual obligations simply because these obligations later prove
to be burdensome or unwise”). Here, Appellee desires to limit the award of attorney’s fee
in ways that it simply did not choose to include in this written contract, the result of which
would be to eliminate the attorney’s fee provision from the contract in its entirety. But
according to the principles Appellee cites in its own brief, we may not rewrite the contract
to excuse them from their obligations thereunder.
Here, we agree that the provision is not a model of clarity. But the express language
provides for an award of attorney’s fees to a customer that is required to retain the services
of an attorney to enforce the contract. That is exactly what Mr. Campbell did in this case.
The inclusion of the phrase “where applicable” does not alter or destroy this clear intention.
Consequently, the trial court erred in denying Mr. Campbell’s request for attorney’s fees.5
V. CONCLUSION
The judgment of the Williamson County Circuit Court is reversed. Attorney’s fees
are to be awarded to Appellant Kevin Campbell. The matter is remanded for determination
of reasonable attorney’s fees, and for all other proceedings as may be necessary and
consistent with this Opinion. Costs of this appeal are taxed to Appellee.
S/J. Steven Stafford
J. STEVEN STAFFORD, JUDGE
5
Mr. Campbell does not ask for an award of attorney’s fees incurred in this appeal in his appellate
brief.
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