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Hudson v Grunloh

Case No. E2013-01434-COA-R3-CV (TN Ct. App., Mar. 11, 2014)

This case involves a claim for contractual attorney fees and a counterclaim for legal malpractice. The trial court dismissed the legal malpractice claim at the summary judgment stage, it granted summary judgment on certain aspects of the attorney’s fee claim, and, following a trial, it awarded a judgment in favor of the attorney. We affirm.

I. FACTS & PROCEDURAL HISTORY



In June 2011, Max Wilson filed a Complaint seeking a divorce from his wife of approximately fourteen years, appellant Delilah Grunloh. Attorney Timothy Hudson agreed to represent Ms. Grunloh in her divorce, and on July 7, 2008, a fee agreement was executed. Attorney Hudson represented Ms. Grunloh from July 7, 2008 to September 8, 2009, when he was discharged by her.

No children were born of the marriage between Mr. Wilson and Ms. Grunloh, and the divorce proceedings focused upon the ownership of assets accumulated during the marriage. Ms. Grunloh had substantial mortgages on three residences, she and her husband were heavily in debt, and she was having difficulty paying the overhead in her liquor store business. During the divorce, Ms. Grunloh took the position that she was entitled to all property acquired during the marriage with the exception of a vacant lot. Mr. Wilson, however, claimed that he was an unnamed partner in the liquor store business, that he worked steadily in the liquor store business, and, therefore, that he was entitled to half of the equity in the liquor store business and real estate. Thus, the divorce case required appraisals on three residences and the liquor store and an analysis of the history of the liquor store business.

By agreed order, the case was set for trial on April 8, 2009. Trial was held over two days in April and May 2009 without decision. At the conclusion of trial, the trial court advised the attorneys to file briefs and to return to court at a later time. The case was continued, however, pending sales of the residences and the liquor store and due to a possible agreement between the parties as to the division of assets.
 

 

Judge(s): Alan E. Highers
Jurisdiction: Tennessee Court of Appeals
Related Categories: Contracts , Damages , Malpractice , Torts
 
Trial Court Judge(s)
E. G. Moody

 
Court of Appeals Judge(s)
David Farmer
Alan Highers
Steven Stafford

 
Appellant Lawyer(s) Appellant Law Firm(s)
Timothy Hudson Pro se

 
Appellee Lawyer(s) Appellee Law Firm(s)
Delilah Grunloh Pro se

 

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jury of any issue triable of right by jury by demanding the same in any pleading specified in was obligated to attend without being requested or [that he]could have done as “complex[,]” noting that “[s]he had substantial mortgages on three residences, she and her the amount not to exceed $25,000.00.” in her amended answer and counter claim, ms. must then establish the existence of the essential elements of the claim.” mccarley v. west if the court ‘applied incorrect legal standards, reached an illogical conclusion, based its issues the appellant intends to present on appeal. proof of service shall be legal assistant, ms. isley, who has 20 years’ experience. ms. isley testified next, we address ms. grunloh’s argument that the trial court erred in granting partial ms. grunloh’s appellate brief is not a model of clarity, but it appears that she attached policy indicated that she would be charged for such time spent, “[t]here was no 6, 2009, and may 20, 2009 in the itemization of time exhibit. ms. grunloh’s onto an excel spreadsheet, from which the itemization of the statement was agreement between the parties as to the division of assets. to promote consistency and avoid repugnancy between the various provisions in a single -6- killingsworth v. ted russell ford, inc., 104 s.w.3d 530, 534 (tenn. ct. app. 2002)). “on the attached one-page policy, also signed by ms. grunloh, further provided, in pertinent summary judgment related to the issues of legal malpractice and attorney fees; -3- testified the $5,000 went into the trust account. ms. isley testified that when of $375 is not allowed as conceded by mr. hudson. there is an expense for 8. ms. grunloh admits that she had no criticism of mr. hudson until just state, no. m2006-01113-coa-r3-cv, 2007 wl 4322016, at *2-3 (tenn. ct. app. dec. 5, (3) the fee customarily charged in the locality for similar legal services; charge. august 20, 2009; neither ms. grunloh nor attorney hudson attended the sale. shortly 1976)). however, a party must demand a jury trial in accordance with the provisions of grunloh has filed no expert affidavit. approximately fourteen years, appellant delilah grunloh. attorney timothy hudson agreed her of the retainer fee’s withdrawal. specifically, with regard to these issues, the trial court mccarley, 960 s.w.2d at 588; byrd, 847 s.w.2d at 215 n.6). “the nonmoving party’s and that she did not attend the auction herself. furthermore, she did not ask does not blame mr. hudson for the failed closing of the attempted sale of a 4. whether the trial court erred in making certain factual findings related to billing demand for a jury trial on this issue based, in part, upon her failure to demand a jury trial in what ms. grunloh’s characterizes as two attached statements appears to be the summary of discretion in finding attorney hudson’s fee was reasonable. the evidence presented 208, 215 (tenn. 1993)). 1. ms. grunloh’s claim of legal malpractice and expenses that have been paid in advance, to be withdrawn by the lawyer only as fees are earned or tn and a phone conference with ms. grunloh. the meeting was necessary attempted to work out a disposition of their property before scheduling further deducted from attorney hudson’s award. to represent ms. grunloh in her divorce, and on july 7, 2008, a fee agreement was executed. rule 7.01 or by endorsing the demand upon such pleading when it is filed, or by written10 4. in the court’s prior order, ms. grunloh was directed to itemize her -12- principal balance of $17,963.75. he also filed a supplemental statement of material facts. objection and motion that the itemization is inadmissible hearsay is overruled. liquor store were reasonable and necessary in that the disposition of the liquor s.w.2d 503, 505 (tenn. ct. app. 1978)). this decision is, of course, discretionary, and in any event, ms. evidence as a “fair, accurate, and complete account of the evidence presented at the final however, claimed that he was an unnamed partner in the liquor store business, that he worked (9.) there was no evidence of any prior advertisement or statements by mr. [attorney hudson] filed a response (objection) to [ms. grunloh’s] common knowledge of a layperson . thus, when attorney hudson presented his affidavit coleman, no. w2012-02183-coa-r3-cv, 2013 wl 5308013, at *11 (tenn. ct. app. sept. in this case, attorney hudson filed his intervening complaint on or about october 6, . . . ms. isley further testified that ms. grunloh required frequent attention, mccarley, 960 s.w.2d at 588). who bears the burden of proof at trial must either: (1) affirmatively negate an essential failure to attend such. upon motion by attorney hudson, he was allowed to withdraw on until after the auction, the failed closing and she reconciled with her husband. 851 s.w.2d 825, 827 (tenn. ct. app. 1992)). “when determining whether a lawyer the evidence in a light most favorable to the decision.’” id. (quoting wright ex rel. wright time. her criticisms are directed more to the manner in which the attorney’s 19, 2013). “a trial court’s determination on the reasonableness of fees is ‘a subjective quickly as possible, and mr. hudson did not proceed quickly enough. the one of her homes. it was after these events in late august, 2009, several weeks as stated above, the trial court found that a genuine issue of disputed fact existed as out two additional court appearances that were not included in the itemization, by the nonmoving party.” martin, 271 s.w.3d at 84 (citing blair, 130 s.w.3d at 768). “it testimony included within attorney hudson’s statement of the evidence. expenses, did not include legal assistant time, that the malpractice amended ms. grunloh in this divorce; evidence must be accepted as true, and any doubts concerning the existence of a genuine a specific issue, then the demand is limited to those issues. rule 38.04, 1, 2011. thus, in this appeal, we apply the summary judgment standard set forth in hannan. required to establish negligence and proximate cause unless the alleged malpractice is within differences regarding whether the record accurately discloses what occurred summary judgment dismissing ms. grunloh’s claim for legal malpractice. see id. (affirming fraud claim against wells fargo regarding the financing on ms. grunloh’s demand filed with the clerk, with notice to all parties, within fifteen (15) days after the failed to satisfy her burden of production because she did not file an expert affidavit or even to cast doubt on a party’s ability to prove an element at trial.” hannan, 270 s.w.3d the agreed ordered auction of household furnishings and the failed closing of complaint because his itemization of time was not filed until april 12, 2010. 1. whether the trial court erred in granting in part, attorney hudson’s motion for trial “‘even though the moving party had not made a timely demand for a jury as required by rule 38.’” payment that she gave her a copy of the most current itemized statement. she believes that furnishings and the amount they were sold for at auction” as well as “pun[i]tive damages in the same jurisdiction.” id. (citing cleckner v. dale, 719 s.w.2d 535, 540 (tenn. ct. app. by agreed order, the case was set for trial on april 8, 2009. trial was held over two found and ruled that mr. hudson’s motion for summary judgment should be part: judgment. ms. grunloh raises as an issue on appeal, whether the trial court “erred in granting seek recovery on a quantum meruit theory, but on his contract. she says mr. calls by attorney hudson, the 117 phone calls listed were unsupported by a “memo, phone fee to attorney hudson’s telephone calls and to his travel time. “questions of contract9 [the law firm] calculates time to the nearest quarter hour. for example, if we hearing of january 9, 2013[.]” “the nonmoving party may satisfy its burden of production by: (1) pointing to evidence divorce proceedings focused upon the ownership of assets accumulated during the marriage. hourly rate did include travel, telephone calls, and reimbursement for litigation judgment has the burden of demonstrating that no genuine disputes of material fact exist and itemization of mr. hudson’s time was provided and all of ms. grunloh’s his claim. with the exceptions of time spent on the telephone and traveling, ms. grunloh apparently does v. stone & hinds, p.c., 813 s.w.2d 400, 403 (tenn. 1991); blocker v. dearborn & ewing, to the non-exclusive factors set out in rule 1.5(a) of the tennessee rules of professional the one-page fee agreement executed by the parties in this case provides in relevant -17- of the contractual language.” guiliano v. cleo, 995 s.w.2d 88, 95 (tenn. 1999) (citing upon filing the statement, the appellant shall simultaneously serve notice of hamilton county hosp. auth., 249 s.w.3d 346, 358 (tenn. 2008)). mention deposit of the retainer fee, but it implies that ms. isley testified that ms. grunloh rule 7.01 pleadings include complaint, answer, reply to a counterclaim, answer to a cross-claim,10 fees, as amended, are reasonable.” based upon mr. hudson’s failure to attend the auction, served. . . . . deposit: $5,000 to be paid wednesday 7/9 at 11:30 of mr. hudson’s skill and experience. factors, the trial court found “that both mr. hudson’s contract for services and his charged you will be charged for all time spent on your case including, but not limited nothing. . . . experience and skill were necessary to perform legal services for debt and subject of the divorce proceedings. the charges for the meeting appellee has objections to the statement as filed, the appellee shall file care, skill, and diligence commonly possessed and exercised by other attorneys practicing in trial court dismissed ms. grunloh’s claim for legal malpractice stating: and the liquor store, real estate, and an analysis of the history of the liquor store business.” 2007)). causes an injustice to the complaining party.’’” id. (quoting konvalinka v. chattanooga- establishing material factual disputes that were over-looked or ignored by the moving party; determinations absent clear and convincing evidence to the contrary. jones v. garrett, 92 additionally, attorney hudson’s affidavit indicates that he has been licensed as an attorney a claimant alleging legal malpractice bears the burden of proving all of the essential attorneys, and that he complied with that standard, thereby negating an essential element of grunloh demanded, for the first time, a jury trial on the issues of damages and attorney fees. litigation expenses. on november 17, 2009, ms. grunloh, acting pro se, filed her answer husband were heavily in debt, and she was having trouble paying the overhead in her liquor hannan. see tenn. code ann. § 20-16-101. however, the statute applies only to cases filed on or after july in june 2010, ms. grunloh filed a “motion to strike or disregard attorney statement assigned on briefs january 8, 2014 attorney hudson timely filed an objection and his own statement of the evidence. the trial granting in part and denying in part, attorney hudson’s motion for summary judgment. the brief was ordered by the court and prepared, but not filed because the parties the services; available. if no stenographic report, substantially verbatim recital or suited for resolution by summary judgment.” rcr bldg. corp. v. pinnacle hospitality first, [ms. grunloh] did not demand a jury trial in her original answer to the attorney hudson represented ms. grunloh from july 7, 2008 to september 8, 2009, when supporting affidavit establishing the standard for local practicing divorce until she saw a break-down of his charges via the april 9, 2010 itemization of time. indicates that ms. grunloh’s divorce involved a complicated implied partnership issue, that from attorney hudson that the money was deposited, by noting that the itemization of time the common knowledge of laymen.’” strong v. baker, no. m2007-00339-coa-r3-cv, ms. grunloh’s deposit of $5,000 and an additional $2,856.25 she paid were (2) rehabilitating the evidence attacked by the moving party; (3) producing additional deceptive nor unreasonable. ms. grunloh objects to the time spent on a post- tennessee rules of civil procedure. secondly, ms. grunloh in her amended whether the liquor store business was a partnership of the parties or solely and made express findings, as to each of the above-listed factors: d. mr. hudson concedes that the blank of the contract for the hourly charge for issue of material fact shall be resolved in favor of the nonmoving party.” id. (citing on appeal, ms. grunloh argues that the $200.00 per hour fee should not be applied objected to ms. grunloh’s statement of the evidence and he filed his own statement of the off documents and/or to speak with mr. hudson, that ms. grunloh referred at trial brief that was never filed as unreasonable. the court finds that the 8 ½ be correct unless the evidence preponderates otherwise. tenn. r. app. p. 13(d); armbrister evidence establishing the existence of a genuine issue for trial; or (4) submitting an affidavit ms. grunloh[] the itemized statements, but when ms. grunloh came to the office to make a days of trial, and post-trial work. locality for legal services similar to that needed in this case, and for an attorney above, the trial court found no genuine issues of material fact as to the following issues: b. the rate of $200 per hour recited in the contract was appropriate; “statement of evidence and proceedings” to which attorney hudson filed an objection and effect.” id. (citing davidson v. davidson, 916 s.w.2d 918, 922-23 (tenn. ct. app. 1995)). of time” arguing, essentially, that the entire itemization should be struck because, among c. statement of the evidence therein, the record may be corrected or modified to conform to the truth. any 7. the court finds that mr. hudson’s meetings and calls with the realtor of affidavit indicating compliance with the standard of care and the plaintiff failed to present “the right to trial by jury is constitutional and jealously guarded.” realty ass’n v. “it is well-settled law that, ‘[i]n a legal malpractice action, expert testimony is timothy w. hudson, bristol, tennessee, pro se business. during the divorce, ms. grunloh took the position that she was entitled to all findings of fact and conclusions of law and final judgment on intervening complaint until may 20, 2013. on the days of the phone calls, she did not receive periodic billing statements, and because however, it denied summary judgment on attorney hudson’s fee claim finding “there is a to ms. grunloh because, she claims, the itemization of time did not “state[] that any item was trial issue will be addressed below. valid contract for legal representation by mr. hudson in her divorce, that the 2008) (quoting rose v. welch, 115 s.w.3d 478, 484 (tenn. ct. app. 2003)). “only in cases -16- competent evidence showing (1) that the accused attorney owed a duty to the plaintiff, (2) summarily dismissing her legal malpractice claim against attorney hudson. a grant or lawyer charges; and transcript of the evidence or proceedings is available, the appellant shall a july 8, 2013 order indicates that ms. grunloh was not served with the february 20, 20137 parties in the real estate and package store business. there were no issues of child custody (c) statement of the evidence when no report, recital, or transcript is litigation in order to inflate his fee and generally denying that attorney hudson had earned 1. the court previously found upon summary judgment that ms. grunloh’s for the aforementioned reasons, we affirm the decision of the chancery court. costs heavily in debt, and she was having difficulty paying the overhead in her liquor store three residences and the liquor store and an analysis of the history of the liquor store ms. grunloh in this divorce; explanation, that “ms. isley’s testimony is not trustworthy and should not have been metro. gov’t of nashville & davidson county, 259 s.w.3d 705, 710 (tenn. 2008)). ms. grunloh hired a realtor to sell the properties and she hired an auctioneer to sell “a moving party who seeks to shift the burden of production to the nonmoving party calling nearly every day for months, showing up without appointments to drop was entered on february 20, 2013. ms. grunloh timely appealed. she then filed a7 summary judgment will fail.” martin, 271 s.w.3d at 83 (citing byrd v. hall, 847 s.w.2d we find this statement curious as ms. grunloh’s amended answer and counter claim demanded5 3. whether the trial court erred in accepting attorney hudson’s statement of the ms. grunloh also seems to challenge the $375 legal assistant fee, but, as stated above, this fee was16 jessee was unnecessary. mr. jessee had referred ms. grunloh to mr. hudson in determining that attorney hudson’s fee was reasonable, the trial court considered, s.w.3d 835, 838 (tenn. 2002). a fair, accurate and complete account of what transpired with respect to those no. b0021690c e. g. moody, chancellor other things, she should not have been charged $200.00 per hour for travel or for telephone legal assistant time was not completed and that the 5.0 hours of legal assistant awarded attorney hudson $15,988.75, plus 12% prejudgment interest from october 1, 2009 the tennessee general assembly has enacted a law that legislatively reverses the holding in8 telephone calls and other legal work done on the same day has to be listed monetary judgment of $17,063.75, plus interest, on his claim for attorney fees and that ms. (tenn. 2008) (footnote omitted). in order to negate an essential element of the claim, “the before she discharged him, that she told him and his assistant that he was doing a good job for her on multiple occasions, and that this was her opinion up until to ascertain the intention of the parties based upon the usual, natural, and ordinary meaning days in april and may 2009 without decision. at the conclusion of trial, the trial court time, demanding a jury trial on the issue of attorney fees. attorney hudson filed his twice during the course of representation, the itemization of mr. hudson’s however, the trial court reduced attorney hudson’s fee by $1,600. thus, the trial court negated an essential element of ms. grunloh’s claim, and she was required to present expert malpractice or in defense of attorney hudson’s fee claim. involving, ‘‘clear and palpable negligence’’ can legal malpractice be determined without as further explained in the attached policy. such policy clearly explains that ms. grunloh grunloh’s claim for legal malpractice be dismissed. also on april 9, attorney hudson filed in this case, ms. grunloh’s allegation of legal malpractice is based upon attorney the itemization is clearly an admissible business record. we first address ms. grunloh’s apparent argument that the trial court erred in -19- claim is that the attorney’s fees are unreasonable and excessive. this claim into his trust account, and that she never received any accounting. ms. isley part: at 8. “if the moving party is unable to make the required showing, then its motion for8 hours for preparing a brief that never was filed was reasonable, in that, the 1986)). “except for obvious, common sense mistakes, establishing the applicable standard “thus, except in extreme cases, if a defendant-attorney presents expert proof that he or she approval of attorney hudson’s statement of the evidence is affirmed. payments were credited in the bill. ms. grunloh’s deposit of $5,000 and an will be discussed below. she further says that mr. hudson is not entitled to 2. mr. hudson introduced itemization of his time through the testimony of his calls, but says they should have been listed separately and not included with correspondence, communications with adverse counsel, interviewing provides for reimbursement of litigation expenses; facts with his supporting affidavit establish[ed] the standard for local practicing divorce (5) the time limitations imposed by the client or by the circumstances; attorney hudson’s fee was reasonable. we review a trial court’s determination regarding15 granted in part. the court incorporates the findings and conclusions in that to intervening complaint generally arguing that attorney hudson had not earned the fee ms. grunloh argues that ms. isley’s testimony was hearsay. however, this argument is raised12 issues that are the bases of appeal. the statement, certified by the appellant or testimony to meet her burden of production. see id. (citing bursack, 982 s.w.2d at 343-44). service of the last pleading raising an issue of fact.” tenn. r. civ. p. 38.02. (9) prior advertisements or statements by the lawyer with respect to the fees the also attached two (2) statements attributed to grunloh and ms. isley. contingent: $ to be paid _______________________ following a trial, it awarded a judgment in favor of the attorney. we affirm. objections thereto with the trial court within fifteen days after service of the from accepting other employment. summary judgment on attorney hudson’s claim for contractual attorney fees. as stated -15- -2- if necessary, the appellate or trial court may direct that a supplemental record assuming, arguendo, that these challenged factual findings are even pertinent to the the fee sought in his intervening complaint. on december 28, 2009, ms. grunloh filed an communications and travel time and that this rate was customary within the locality, that the extraordinary circumstances, the determination of the trial court is conclusive. page of the fee agreement states that ms. grunloh will be charged $200.00 per attorney hour that the attorney breached that duty, (3) that the plaintiff suffered damage, and (4) that the page one. construing both pages together, it is clear, as a matter of law, that the parties october 21, 2009. on july 7, 2010, an order was entered dismissing the divorce case due to auctioneer, she, along with the auctioneer, arranged for the auction, and she never asked -11- (tenn. 2009) (citing martin v. norfolk s. ry., 271 s.w.3d 76, 83 (tenn. 2008); amos v. reconciliation. statement was hearsay is overruled for the reasons stated above. her second his recovery of $1,700 for the preparation of a brief which, she claims, was not filed until (1) the time and labor required, the novelty and difficulty of the questions because she failed to do so, the trial court properly granted attorney hudson’s motion for chancery court alleging that ms. grunloh had failed to pay him as provided for in the fee simply because the parties reconciled. the judgment against ms. grunloh for attorney fees stage, it granted summary judgment on certain aspects of the attorney’s fee claim, and, (8.) the fee is hourly. breach proximately caused the plaintiff’s damage.” id. (citing lazy seven coal sales, inc. claimed. then, on december 28, 2009, ms. grunloh filed an amended answer and counter “in order to make out a prima facie legal malpractice claim, [the claimant] must present “regarding the accuracy of the itemization of time.” she asserts that she could not have i. facts & procedural history corp. of tenn., inc. v. hohenwald bank & trust co., 703 s.w.2d 133, 137 (tenn. 1986); summary dismissal of a legal malpractice claim where the defendant presented an expert contention that [ms. grunloh]’s statement was unfair, inaccurate and not a hourly rate of $200 per hour in the contract was appropriate, the contract (6) the nature and length of the professional relationship with the client; order. the court reaffirms the prior ruling that ms. grunloh entered into a that billing was prepared by the use of daily time logs which were transferred tennessee rule of civil procedure 38.02 which provides: “any party may demand a trial by to february 20, 2013, for a total of $22,495.46. a final judgment on intervening complaint a presumption of correctness. kinsler v. berkline, llc, 320 s.w.3d 796, 799 (tenn. 2010) $5,000, that he should produce evidence that it went into his trust account, and owned by ms. grunloh, and ms. grunloh’s claims that her husband was an hamblen county v. city of morristown, 656 s.w.2d 331, 333-34; bob pearsall motors, inc., certain work was unnecessary. ms. grunloh also filed a statement of facts in opposition martin, 271 s.w.3d at 84 (citing mccarley, 960 s.w.2d at 588; byrd, 847 s.w.2d at 215). reconciled, discharged their attorney, and dismissed their divorce claims. objections to mr. hudson’s statement so the court may go through them at in her appellate brief, ms. grunloh challenges factual findings made by the trial court it then found no genuine issues of material fact as to the following issues: almany realtors, inc., 259 s.w.3d 700, 703-04 (tenn. 2008) (quoting bob pearsall motors, of attorney fees.11 following a hearing on april 4, 2011, the trial court entered an order, on april 7,3 determined that the evidence does not preponderate against the trial court’s findings related legal assistant time was not completed and that the 5.0 hours of legal assistant tenn. sup. ct. r. 8, rpc 1.5(a). conduct: (citing blair v. w. town mall, 130 s.w.3d 761, 763 (tenn. 2004)). this case. as explained above, ms. grunloh filed a statement of the evidence to which b. the rate of $200 per hour recited in the contract was appropriate; however, we find this issue moot as attorney hudson agreed to deduct the $375.00 legal assistant fee from (continued...) in the liquor store business and real estate. thus, the divorce case required appraisals on testimony. ms. grunloh does not claim she paid more than credited. opinion breach of care did occur in order to create a genuine issue of material fact.” id. (citing if the moving party does make a properly supported motion, “[t]he non-moving party entered september 24, 2013.” in her brief, she argues: after the divorce trial, that she changed her opinion. she stated that mr. genuine issue of disputed fact as to the accuracy of the itemization of time.” for the following reasons, we affirm the decision of the chancery court. it appears that attorney hudson filed no memorandum in support of his motion for summary1 alan e. highers, p.j., w.s. employment will preclude other employment by the lawyer; in the court of appeals of tennessee (7) the experience, reputation, and ability of the lawyer or lawyers performing filed with the clerk of the trial court with the filing of the statement. if the answer and counterclaim asked for a jury trial only on the issue of damages listed the total fees and costs as $24,920.00 less $7,856.25 paid by ms. grunloh, for a balance due of (...continued)9 in june 2011, max wilson filed a complaint seeking a divorce from his wife of timothy w. hudson v. delilah m. grunloh judgment was not granted as to these issues and they were considered at trial. for example, the trial court year which ms. grunlow signed. preparation, discovery, trial, and post-trial proceedings. flat: $ to be paid _______________________ ct. app. feb. 11, 2000) (citing caudill v. mrs. grissoms salads, inc., 541 s.w.2d 101 (tenn. a court reporter in the amount of $75. ms. grunloh has paid $7,856.25, a statement of material facts in support thereof. he requested that he be awarded a1 (4) the amount involved and the results obtained; (3.) mr. hudson’s fee of $200 per hour is within the customary range in this that attorney hudson’s “failure to rep[re]sent her at the [furnishings] sale[] . . . resulted in and reasonable. based upon the allegedly unsatisfactory results and the allegedly unnecessary time spent, but summary his own statement of the evidence. the trial court adopted mr. hudson’s statement of the issue for trial was the accuracy of the time recorded on the billing statement counterclaim should be dismissed as a matter of law, and the only remaining e. factual findings ms. grunloh and attorney hudson agreed to a $200 per hour rate including telephone included. furthermore, in the course of this litigation, ms. grunloh pointed “‘the cardinal rule for interpretation of contracts is to ascertain the intention of the (continued...) prepare a statement of the evidence or proceedings from the best available points out that “aside from the issue of divorce the single issue concerned the interest of the evidence. the trial court reconciled the two statements by adopting attorney hudson’s answers to interrogatories, and admissions on file, together with the affidavits, if any, show excessive when compared to the results obtained. she states that “[t]here were no results of no. e2013-01434-coa-r3-cv-filed-march 11, 2014 will be charged for mr. hudson’s time spent on the telephone and for “travel time.” the court finds that mr. hudson has filed a statement of material facts with his expert testimony.” id. (citing rose, 115 s.w.3d at 484; cleckner, 719 s.w.2d at 540). -8- again, the record contains no transcript from the proceedings below. relevant to hudson failed to show proof that he put in his trust account her deposit of additional $2,856.25 she paid were credited. the court accepts ms. isley’s v. armbrister, 414 s.w.3d 685, 692 (tenn. 2013) (citations omitted). when the trial court’s did not breach the duty of care, the plaintiff-client must present rebuttal expert proof that a she billed ms. grunloh twice during the course of representation, the involved, and the skill requisite to perform the legal service properly; the rules of professional conduct require a lawyer to “deposit into a client trust account legal fees13 contract.” id. (citing guiliano, 995 s.w.2d at 95). finally, we address ms. grunloh’s apparent claim that the trial court erred in finding in the divorce case. the court does not agree with ms. grunloh’s objections log or billing statement[,]” because 55 phone calls were listed with other charges incurred wilson’s position was that he was a partner in the liquor store business and, thus, that he was prejudgment interest should be reversed. -21- rule 24 of the tennessee rules of appellate procedure provides in relevant part: furnishings did not bring an appropriate price. ms. grunloh, however, admits prepared. ms. isley also testified that in preparation for her testimony, she version of the proceedings. ms. grunloh has alleged no “extraordinary circumstances” claim she paid more than credited. next, ms. grunloh asserts an argument related to the statements of evidence filed in mr. hudson to attend the auction. the court does not find that mr. hudson property acquired during the marriage with the exception of a vacant lot. mr. wilson, of care and determining whether a lawyer breached that standard require expert evidence.” (10.) the fee agreement was in writing, including a billing policy addendum v. wright, 337 s.w.3d 166, 176 (tenn. 2011)). “‘[w]e will find an abuse of discretion only -20- 2. whether the trial court erred in denying ms. grunloh’s demand for a jury trial -7- -14- iv. conclusion id. (citing blocker, 851 s.w.2d at 827; cleckner, 719 s.w.2d at 540). we review a trial court’s findings of fact de novo on the record and presume them to other activity recorded on the same day. there is no requirement that the is affirmed. entitled a portion of the business. further, it states that, upon ms. grunloh’s request, (e) correction or modification of the record. if any matter properly on appeal, ms. grunloh seems to imply that the trial court erred in dismissing her it explains the divorcing parties’ conflicting positions which led to a “hotly contested trial”; intervening complaint, and she demanded a jury trial on the issue of attorney fees in fee and the notice of withdrawal by pointing out that she testified that she received no proof13 includable is omitted from the record, is improperly included, or is misstated lawyer earns the fee, the funds shall be promptly withdrawn from the client trust account, and timely notice demand. she argues that she could not demand a jury trial as to the issue of attorney fees grunloh of the withdrawal of funds; and no children were born of the marriage between mr. wilson and ms. grunloh, and the richter/dial builders, inc., no. m1997-00168-coa-r3-cv, 2000 wl 146381, at *6 (tenn. in this case, attorney hudson followed the procedure set forth in rule 24; he timely since 1981 and that, since 1985, when he began practicing in the area of domestic relations, an essential element of the claim at trial.” hannan v alltel publ’g co., 270 s.w.3d 1, 9, judgment based on evidence and the experience of the trier of fact’; there is ‘no fixed steadily in the liquor store business, and, therefore, that he was entitled to half of the equity the challenged factual findings. 2. attorney hudson’s claim for contractual attorney fees a judgment as a matter of law.” tenn r. civ. p. 56.04. “the party seeking the summary inc. v. regal chrysler-plymouth, inc., 521 s.w.2d 578, 580 (tenn. 1975)). “[o]ur task is as stated above, the trial court found that attorney hudson’s “statement of material tenn. r. app. p. 24 (emphasis added). statements, the deposit of the retainer fee in the trust account, and notice to ms. time of $75 per hour for a total of $375.00 will not be sought; parties and to give effect to that intention, consistent with legal principles.’” maggart v. represented ms. grunloh for fifteen months and it characterizes ms. grunloh’s divorce case he has “been lead counsel in hundreds of divorce cases[.]” his affidavit states that he attorney hudson to attend the auction. the allegation related to the scope of attorney with a contract rate of $200 per hour, for a total of $25,370 for attorney time. substant[i]ally below true value.” as damages, she sought “the difference in the value of the regarding ms. isley’s ability to testify as to the accuracy of the itemization of time, and not with regard to included automobile travel time roundtrip between bristol and johnson city, intervening complaint, or 15 days thereafter as required by rule 38.02, marion v. bowling, 1999 wl 1059670, at * (tenn. ct. app. nov. 22, 1999) (quoting smith v. williams, 575 in her brief, ms. grunloh challenges the findings regarding the deposit of the retainer parties reconciled after discharging their attorneys. “all of the contract provisions should be construed in harmony with each other, if possible, -10- unreasonable given the complexity and contentiousness of the case, extensive we note that tennessee rule of civil procedure 39.02 gives the trial court discretion to grant a jury11 a. summary judgment $17,063.75. stating that his conduct complied with the applicable standard of care, he affirmatively issues on appeal, we find ms. grunloh’s challenges are without merit. after reviewing the14 5. whether the trial court erred in finding attorney hudson’s fee was reasonable. considered by the court.” the statement of the evidence adopted by the trial court does not anything to stop a court-ordered auction because of low bidding. ms. grunloh for a jury trial for damages sought in the counterclaim could be considered court, in a september 24, 2013 order, adopted mr. hudson’s statement as a “fair, accurate, discuss your case by telephone, you may be charged 1/4 hour whether we talk (1.) the court finds that this was a complex case, involving multiple b. demand for jury trial intended attorney hudson to charge telephone and travel time at the $200.00 per hour rate. itemization of time on april 9, 2010. her answer on november 17, 2009 alleging that attorney hudson had protracted the retainer fee’s withdrawal. which would warrant overruling this otherwise conclusive determination. the trial court’s a. the parties entered into a valid written contract for mr. hudson to represent to these charges. interpretation are generally considered to be questions of law, and thus are especially well- her original answer to the intervening complaint, or 15 days thereafter as required by rule timely, the jury trial demand did not survive dismissal of the counterclaim. store and ms. grunloh’s houses were significant assets of the marital property regarding the accuracy of the time itemization; 2013, the trial court entered its lengthy findings of fact and conclusions of law, in part, as on appeal, ms. grunloh challenges the finding regarding billing statements being sent any kind other than a tremendous loss at the sale of grunloh’s antiques.” she also16 continuation of the proceedings, and that the divorce case was concluded without decision attorneys, and that he complied with that standard, thereby negating an of this appeal are taxed to appellant, delilah m. grunloh, for which execution may issue if challenges only the trial court’s interpretation of the fee agreement to apply the $200 per hour agreement and claiming that she owed a balance of $17,063.75 for attorney fees and legal malpractice claim because it wrongfully relied upon a memorandum opinion for its account her deposit of $5,000, that he should produce evidence that it went happened on at least two occasions.” in its findings of fact and conclusions of law, the alcoholic who did not positively contribute to the marital estate and deserved ms. grunloh presents the following issues for review, as we perceive them: elements of such claim. horton v. hughes, 971 s.w.2d 957, 959 (tenn. ct. app. 1998). grunloh does not raise rule 39.02 as a vehicle for relief on appeal. a. the parties entered into a valid written contract for mr. hudson to represent complete account of the evidence from the final hearing seven months earlier. time was provided and all of ms. grunloh’s payments were credited in the bill. statement of evidence [] alleging that its contents were unfair, inaccurate and eight (8) minutes or twenty (20) minutes. we generally charge no time for quality food serv., 960 s.w.2d 585, 588 (tenn. 1998). the nonmoving party is required time expended was necessary and reasonable, that the delay in filing the brief was due to a bursack v. wilson, 982 s.w.2d 341, 343-45 (tenn. ct. app. 1998)). “[a]bsent allegations position that ms. grunloh was required to present an expert affidavit. of $200 per hour for attorney hudson’s telephone conversations and his travel time, and to d. mr. hudson concedes that the blank of the contract for the hourly charge for contentious trial, the court requested the parties to file briefs due to the ms. grunloh, and with the attorney representing a prospective buyer of the declaration and notice of the filing of the statement. any differences regarding ms. isley testified that a total of 125.85 [hours] are recorded for attorney time, 521 s.w.2d at 580)). “the interpretation should be one that gives reasonable meaning to all however, the issue of attorney fees was raised in attorney hudson’s october 2009 the [perpetration of] a fr[a]ud by selling her valuable household furnishings at a price the filing on the appellee, accompanied by a short and plain declaration of the 2008 wl 859086, at *7 (tenn. ct. app. mar. 31, 2008) perm. app. denied (tenn. oct. 27, representation based upon her dissatisfaction with the proceeds earned at the sale and his to motion for summary judgment. -9- his affidavit with an attached itemization of time. attorney hudson filed his supplemental2 decision on a clearly erroneous assessment of the evidence, or employ[ed] reasoning that to billing statements, the deposit of the retainer fee into trust, or notice to ms. grunloh of the mathematical rule’ for determining what a reasonable fee is.” id. (quoting united med. separately. the court finds mr. hudson’s method of stating time was neither leaving a balance of $17,588.75. mr. hudson seeks a judgment for that sum, of obvious negligence, expert evidence is required.” id. indicating that attorney hudson had breached the standard of care. (10) whether the fee agreement is in writing. store business.” the affidavit notes that “[t]he case required appraisals on three residences after attorney hudson’s discharge. of the fee.” = $24,470.00; 5 legal assistant hours x $75.00 per hour = $375.00; court reporter fee $75.00. the itemization with the clerk of the trial court within 60 days after filing the notice of appeal. on september 8, 2009. ms. isley testified that ms. grunloh required frequent iii. discussion a statement of the evidence from this hearing is included in the appellate record.6 evidence; dismissed by summary judgment. therefore, even if ms. grunloh’s demand -18- c. the $200 per hour rate includes travel and telephone time, and the contract claim asserting a claim of legal malpractice against attorney hudson. ms. grunloh claimed tenn. r. app. p. 3; appeal as of right; judgment of the chancery court affirmed noticeably absent from the policy is any deviance from the $200.00 per hour rate stated on attention, calling nearly every day showing up without appointments to drop delilah m. grunloh, johnson city, tennessee, pro se amended answer and counterclaim asserting a claim of legal malpractice and, for the first business. prejudgment interest for the work plaintiff claimed he did.” however, her argument in regard to this issue on appeal, ms. grunloh argues that she should have been afforded a jury trial of the withdrawal of funds should be provided to the client. tenn. sup. ct. r. 8, rpc 1.15 cmt. 10. amount stated for either telephone or travel expenses.” we reject this argument. the first ms. grunloh frames the issue as whether “[t]he court erred in awarding plaintiff a judgment and15 their attorneys, reconciled, and dismissed their divorce claims. to, travel time, court waiting time, review of documents, research, to attorney hudson’s time spent traveling and on the telephone because, although the advised the attorneys to file briefs and to return to court at a later time. the case was that there is no genuine issue as to any material fact and that the moving party is entitled to failed to comply with rule 38.02, we affirm the trial court’s denial of a jury trial on the issue that it is entitled to a judgment as a matter of law.” green v. green, 293 s.w.3d 493, 513 direct appeal from the chancery court for sullivan county billing statement, and ms. grunloh’s opinion of mr. hudson did not change after setting out its findings of fact and conclusions of law, and considering the requisite $ per/hr. legal assistant ms. grunloh also argues that the fee agreement “was silent as to any amount for the legal assistant.”9 of whether the record has been transmitted to the appellate court. absent and they have been now included and highlighted in bold for the dates of may that ms. grunloh had no complaint about his fee, that she never questioned the we find untenable ms. grunloh’s argument regarding the timeliness of her jury on april 9, 2010, attorney hudson filed a motion for summary judgment along with tennessee rules of civil procedure. ms. grunloh’s counterclaim was the statement shall be settled as set forth in subdivision (e) of this rule. not a complete account of the evidence at the final hearing. [attorney hudson] expenses incurred.” tenn. sup. ct. r. 8, rpc 1.15(c). a comment further provides that “[w]hen the prepared, delivered, mailed or otherwise sent to grunloh.” according to the statement of12 the case involved extensive discovery, preparation, research, mediation, two the contents of the main residence. an auction of the main residence’s contents occurred on he was discharged by her. (6.) ms. grunloh hired mr. hudson on july 9, 2008, and she discharged him difficulty of the questions involved. the contentiousness was, in part, over that she owed him “$17,063.75 for attorney’s fee and litigation expenses.” ms. grunloh filed is not enough for the moving party to challenge the nonmoving party to ‘put up or shut up’ malpractice. the trial court dismissed the legal malpractice claim at the summary judgment (5.) ms. grunloh testified that she wanted her divorce litigation to proceed as three houses. these houses were valuable marital property with significant -5- determinations are based on its assessment of witness credibility, we will not reevaluate those expert testimony in response). moving party must point to evidence that tends to disprove an essential factual claim made it is unclear whether ms. grunloh made these allegations in support of her claim of legal14 on september 25, 2009, attorney hudson filed an intervening complaint in the court hearings. no further proceedings were scheduled because the parties follows: explaining the necessity for further discovery pursuant to tenn. r. civ. p. 56.06.” id. (citing thus, ms. grunloh’s june 13, 2013 notice of appeal was timely. hudson’s representation does not constitute “clear and palpable negligence” within the affidavit noting an erroneous prior omission of 4.5 attorney hours, thus, leaving an unpaid on appeal, ms. grunloh challenges attorney hudson’s fee by arguing that the fee is found: the evidence approved by the trial court, “[ms. isley] . . . testified that not only did she mail trial. her objections are contained in her motion. her objection that the -4- record before us, particularly the trial court’s accreditation of ms. isley’s testimony, we have i agree to the following fee terms: was notified when withdrawals were made from such fee. challenges the fee’s reasonableness based upon the purported simplicity of the case. she this case involves a claim for contractual attorney fees and a counterclaim for legal related to billing statements, the deposit of the retainer fee into a trust account, and notice to recover on a quantum meruit theory. this is overruled. mr. hudson does not -22- demand for a jury. breached a duty, the question becomes whether the lawyer failed to exercise the degree of the record contains no transcript of this hearing.3 ms. grunloh claimed that “all marital property was hers except for a vacant lot” while mr. hudson should have attended the auction, [and] stopped the auction when the december 2009, four months before the itemization of time was filed. because ms. grunloh the appellant’s counsel as an accurate account of the proceedings, shall be filed appeal, ‘[w]e presume that the trial court’s discretionary decision is correct, and we consider ms. grunloh’s counterclaim for legal malpractice.” it then found that ms. grunloh had essential element of ms. grunloh’s counterclaim for legal malpractice. ms. and complete account of the evidence presented at the final hearing of january 9, 2013[.]” 15, 2012) perm. app. denied (tenn. apr. 9, 2013) (quoting ross prods. div. abbott labs. v. trial court specifically credited ms. isley’s testimony. after reviewing the record in this case, we cannot say that the trial court abused its ii. issues presented 5. ms. grunloh does not largely deny the accuracy of mr. hudson’s reported when determining the reasonableness of an attorney’s fee, the trial court must look amended counterclaim for malpractice should be dismissed. the court also contained no entry concerning a deposit or notice, and by arguing, without further 38.02, tennessee rules of civil procedure. attorney hudson “expedite[d]” a draft order allowing the furnishings auction to take place. known to the court. his affidavit of his experience is filed. credited. the court accepts ms. isley’s testimony. ms. grunloh does not j., and j. steven stafford, j., joined. stated in its findings of fact and conclusions of law that after summary judgment was granted, “the only continued, however, pending sales of the residences and the liquor store and due to a possible hudson’s fees as [to] what he normally charges. 6. ms. grunloh claims that the meeting mr. hudson had with attorney tom demanded a jury within 15 days of attorney hudson’s september 24, 2009 intervening means, including the appellant’s recollection. the statement should convey partners, no. m2012-00286-coa-r3-cv, 2012 wl 5380587, at *7 (tenn. ct. app. nov. to produce evidence of specific facts establishing that genuine issues of material fact exist. time of $75 per hour for a total of $375.00 will not be sought[.] (8) whether the fee is fixed or contingent; relates to reasonableness. she makes no argument that, if the principal award is upheld, the award of (4.) the court finds that the total attorney’s fees of $25,370.75 were not of $200 per hour, for a total amended bill of $25,170. the legal assistant time to the accuracy of attorney hudson’s itemization of time. however, it denied ms. grunloh’s court does not find the process was delayed by mr. hudson, and, in fact, the necessary. that she never received any accounting. ms. isley testified the $5,000 went the itemization set out in detail the following charges: 122.35 attorney hours x $200.00 per hour2 went back to the time log sheets to check her accuracy and found that the not challenge the $200.00 per hour rate, in and of itself. she challenges the reasonableness of the total fee _________________________________ a jury trial “on the issue of damages” as well as an advisory jury on “[t]he issue of attorney fee[s.]” the jury a motion for summary judgment should be granted only “if the pleadings, depositions, at knoxville itemization of the bill. mr. hudson does not ask that the 2.55 hours be into the trust account. ms. isley testified that when she billed ms. grunloh least one client to mr. hudson, that she was complimentary of mr. hudson, (2) the likelihood, if apparent to the client, that the acceptance of the particular (2.) the acceptance of ms. grunloh’s case would not preclude mr. hudson (7.) mr. hudson is experienced, respected and an effective advocate well denial of summary judgment presents a question of law which we review de novo without house. it was right after these events, however, that the parties discharged (...continued)7 the reasonableness of an attorney fee under the abuse of discretion standard. coleman v. [attorney hudson] did not state a single ground in support of his plus interest at the contract rate of 12%, per year, not compounded. witnesses, client conferences, hearings and trials. a hearing was held on the remaining issues on january 9, 2013. on february 20,6 hudson’s failure to attend the furnishings auction although ms. grunloh, herself, hired the in the trial court shall be submitted to and settled by the trial court regardless sought in her counterclaim. when there is a demand for a jury trial only on5 to handle the divorce, and had been hired by ms. grunloh as to a potential itemized statement was accurate except that she had actually under-billed ms. that she chose the auctioneer, that he had a good reputation, that she knew him, element of the nonmoving party’s claim; or (2) show that the nonmoving party cannot prove thereafter, on september 8, 2009, ms. grunloh sent attorney hudson a letter terminating his [attorney hudson’s] motion allowing him to file two (2) statements in the record by order 2009, alleging that ms. grunloh had “breached her obligation under the [fee agreement]” and the december 21, 2012 order set aside an october 11, 2012 order which had granted ms. grunloh’s4 ms. grunloh had substantial mortgages on three residences, she and her husband were grunloh 2.5 hours which were not transferred to the excel spreadsheet to the residences with significant debt and a liquor store business. after two days of ms. grunloh in her divorce case. c. the $200 per hour rate includes travel and telephone time, and the contract very brief communications, and they may appear on your bill as “n/c” for no that explained how he would keep his time, and the interest rate of 12% per the 117 telephone calls shown on the statement, mr. grunloh did not deny the and the reasonableness of the fee. remaining issue for trial was the accuracy of the time recorded on the bill statement and the reasonableness third-party complaint when proper under rule 14, and third-party answer when a third-party complaint is f. reasonableness of attorney hudson’s fee provides for reimbursement of litigation expenses; the trial court’s grant of summary judgment on this issue is affirmed. on december 21, 2012, the trial court entered an order denying ms. grunloh’s jury time was kept, and the overall reasonableness of the fee. for example, as to of the provisions of the agreement, without rendering portions of it neutralized or without be certified and transmitted. off documents and/or requesting to speak with mr. hudson[.] alan e.highers,p.j.,w.s., delivered the opinion of the court, in which david r.farmer, 3. a total of 125.85 [hours] are recorded for attorney time, with a contract rate hourly (see attached policy) $200.00 per/hr. partner attorney fees, the statement of the evidence provides: and support or alimony of any kind.” finally, she makes specific challenges to the charge demand for two stated reasons:4 -13- [ms. grunloh] says mr. hudson failed to show proof that he put in his trust


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