In Re Estate of Bessie Adcock Bingham ( 2017 )

06/13/2017
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
February 23, 2017 Session
IN RE ESTATE OF BESSIE ADCOCK BINGHAM
Appeal from the Chancery Court for Bedford County
No. 28900 James B. Cox, Chancellor
No. M2016-01186-COA-R3-CV
This appeal arises from the probate administration of an estate. The principal issues
concern a certificate of deposit and the trial court’s approval of attorney fees paid from
the estate to the estate’s first attorney. The trial court awarded the certificate of deposit to
the decedent’s son, finding that the certificate of deposit passed to the son as the
surviving joint tenant. With respect to attorney fees paid to estate’s first attorney, the trial
court approved fees in the amount of $12,400 and disapproved fees in the amount of
$7,600. The decedent’s daughter appealed. Finding no error, we affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed
FRANK G. CLEMENT JR., P.J., M.S., delivered the opinion of the Court, in which ANDY D.
BENNETT and W. NEAL MCBRAYER, JJ., joined.
W. Kennerly Burger, Murfreesboro, Tennessee, for the appellant, Peggy Artley.
Megan Kingree Trott, Shelbyville, Tennessee, for the appellee, William S. Bingham.
OPINION
Bessie Adcock Bingham (“the decedent”) died on July 14, 2011, at the age of 92.
She was survived by her two children, Peggy Bingham Artley (“Petitioner”) and William
S. Bingham. In her Last Will and Testament, the decedent divided her estate equally
between her children and appointed Mr. Bingham the executor (“Executor”). Executor
hired attorney Wayne Bomar to assist with the probate of the estate. Executor’s contract
with Mr. Bomar, dated July 20, 2011, included a list of the services Mr. Bomar would
provide for the estate at a fee of 5% of the gross estate as determined by the Tennessee
Department of Revenue Inheritance Tax Return. The contract also listed services that
would not be included at the agreed percentage fee but rather at his hourly fee of $200,
including, inter alia, contested lawsuits by any beneficiary or representative of any
beneficiary.
On July 22, 2011, the decedent’s will was admitted to probate in the Bedford
County Chancery Court. Executor filed his initial inventory and accounting (“Original
Accounting”) in February 2012. Among the assets listed in the Original Accounting was
a certificate of deposit in the amount of $80,000 that the decedent acquired from Regions
Bank in 2003. Three months later, Petitioner commenced this action by filing a Petition
to Remove Executor, Seek Accounting, Object to Inventory, and to Inspect Estate.
Executor filed an answer to the petition, denying that he had defaulted in his duties as
Executor. Following a hearing on the petition, the trial court granted Petitioner access to
the estate. Thereafter, substantial discovery ensued.
On November 1, 2012, Petitioner filed a motion to disqualify Mr. Bomar as the
attorney for the estate, alleging that Mr. Bomar had assumed an adversarial role for
Executor’s individual interests and that he had taken actions on behalf of Executor that
were adverse to the obvious interests of Petitioner. Mr. Bomar subsequently submitted an
order voluntarily withdrawing. On November 9, 2012, Ralph McBride Jr. entered an
appearance as the attorney for the estate and Andrew C. Rambo entered an appearance on
behalf of the individual interests of Executor.
Following protracted proceedings, Executor filed his “Interim Accounting” on
July 23, 2014, in which Executor had omitted the certificate of deposit. Executor
explained the omission of the certificate of deposit as follows: “The [Original
Accounting] in this cause included as an asset a Regions Bank time deposit/IRA . . . in
the amount of $80,000. Further investigation indicates that this account was jointly
owned by the decedent and [Executor]. This account is therefore not included in this
Interim Accounting.”
Petitioner filed an objection to the Interim Accounting in which, as relevant on
appeal, she objected to Executor’s failure to include the certificate of deposit as an asset
of the estate and an expense of $20,000 in attorney fees paid from the estate to Mr.
Bomar. A hearing on Petitioner’s objections was held on January 22, 2015, at which
Petitioner, Executor, and Mr. Bomar testified.
With respect to the certificate of deposit, it was undisputed that the account was
jointly held by the decedent and Executor. Executor argued that, following the death of
the decedent, the certificate of deposit passed to Executor by right of survivorship and
was not an asset of the estate. In support of his position, Executor presented the
documents the bank utilized in establishing the account. The following documents were
admitted into evidence: (1) Time Certificate of Deposit, (2) Regulation CC Funds
Availability Disclosure, (3) Deposit Account Agreement and Disclosure, and (4) an
untitled, one-page document that the parties referred to as the Signature Card.
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The Time Certificate of Deposit states that the “account name” is “Bessie A.
Bingham or Billy Bingham.”
The Regulation CC Funds Availability Disclosure states that the “account holder”
is “Bessie A. Bingham or Billy Bingham.”
The Deposit Account Agreement and Disclosure states at the top of page one that
the depositor is “Bessie A. Bingham or Billy Bingham.” On the middle of page two, the
Deposit Account Agreement and Disclosure reads as follows:
MULTIPLE-PARTY ACCOUNTS. This section pertains to multiple
party accounts:
(A) Joint Account Ownership. An account with two or more Account
Holders is a joint account. Unless you designate otherwise on the Signature
Card, joint Account Holders will be considered joint tenants with right of
survivorship.
(1) Joint Tenants With Right of Survivorship. If your Account is
a joint account with right of survivorship, upon the death of one of
the joint Account Holders, that person’s ownership interest in the
Account will be immediately pass to the other joint Account
Holder(s).
(2) Joint With No Right of Survivorship. If your Account is a joint
account with no right of survivorship (Joint as Tenants in Common),
upon the death of one of the joint Account Holders, that person’s
proportionate ownership interest will pass to the estate of the
deceased Account Holder.
(Emphasis in original).
The Signature Card states that the account holders are “Bessie A. Bingham or
Billy Bingham” and designates the account’s “ownership type” as “Joint (Right of
Survivorship).” (Emphasis in original). The Signature Card provides a space for the
signature of the decedent and a space for the signature of Executor, neither of which
contain a signature. In clarifying the absence of their signatures, Executor testified that,
although he was not present when the decedent purchased the certificate of deposit, the
decedent and he signed the Signature Card and returned it to the bank. Executor further
testified that when he attempted to obtain a copy of the signed Signature Card, the bank
informed him that it “[didn’t] keep anything over seven years . . . .”
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Executor argued that the account documents clearly and unambiguously state that
the funds were held by the decedent and Executor as joint tenants with right of
survivorship. Executor further argued that the account’s designation of right of
survivorship is “conclusive evidence . . . of the intentions of all named that title vests in
the survivor,” pursuant to Tenn. Code Ann. § 45-2-703(e)(1). Thus, Executor insisted that
the funds were not part of the decedent’s estate and did not pass under the will.
Petitioner argued that Executor could not rely on the conclusive presumption
established in Tenn. Code Ann. § 45-2-703(e)(1) because the Signature Card was not
signed by the decedent. According to Petitioner, the decedent was mentally alert and
physically capable of executing the paperwork related to the certificate of deposit; thus,
the absence of the decedent’s signature on the Signature Card evinces that the decedent
did not agree with the manner in which the account was established, that being a joint
account with right of survivorship. Petitioner further argued that, without any signed
documents designating that the account carried a right of survivorship, there is a
rebuttable presumption that the “property held under the title, joint tenancy, carries no
right of survivorship,” pursuant to Tenn. Code Ann. § 45-2-703(e)(4). Petitioner
contended that Executor failed to overcome that presumption. Thus, she insisted that the
funds were part of the decedent’s estate and should pass under the will rather than to
Executor.
As to the issue of attorney fees, Executor testified that the estate paid Mr. Bomar
$20,000 for legal services he provided to the estate. Executor stated that he was satisfied
with the services provided by Mr. Bomar, that the services rendered were of value to the
estate, and that he believed the $20,000 fee was reasonable.
For his part, Mr. Bomar testified at length as to the difficulty of the case.
Specifically, Mr. Bomar testified that Petitioner employed four different attorneys while
he represented the estate, which caused his work to increase because it was necessary to
repeat work following the employment of each new attorney. In addition to Petitioner’s
frequent changes of attorneys, Mr. Bomar testified that he also had to expend time to deal
with Petitioner’s unauthorized removal of personal property from the decedent’s house.
He further noted that there were numerous unsuccessful attempts to settle the estate
during his representation. Mr. Bomar provided an itemization of his time spent on the
case, showing that he spent 72 hours defending this action. With respect to the
itemization, Mr. Bomar testified that it was a reconstruction of the time he spent
representing the estate and that he did not keep contemporaneous time records where he
represented the estate due to the percentage fee agreement in the contract.
Petitioner argued that Mr. Bomar’s percentage fee arrangement was “per se
unlawful and a violation of the Tennessee Rules of Professional Conduct.” Petitioner also
argued that Mr. Bomar’s fees were excessive because Mr. Bomar was protecting the
individual interest of Executor at the expense of the estate. According to Petitioner, Mr.
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Bomar’s fees should have been about the same as the fees of her first attorney, John
Bobo.
In ruling from the bench, the trial court concluded that the certificate of deposit
properly passed to Executor as the surviving joint tenant. Specifically, the trial stated:
Even without the signatures appearing, the presumption given rise to by
[Tenn. Code Ann. §] 45-2-703(e)(1) is still in play. And it is a conclusive
presumption. And the Court does not find that it’s been overcome. As it
relates to that analysis, the Court honestly will credit [Petitioner’s]
testimony about her mother’s mental state at the time in that circumstance.
With respect to Mr. Bomar’s attorney fees, the trial court reviewed the fee requests
for reasonableness and approved fees in the amount of $12,400 and disapproved fees in
the amount of $7,600. The court ordered that the $7,600 be treated as a distribution to
Executor and taken into account upon final settlement of the estate.
The trial court entered a written order consistent with its bench ruling on March
13, 2015. After further protracted proceedings, an order closing the estate was entered on
May 6, 2016. Petitioner timely appealed.
Although not stated exactly as such, Petitioner raises two issues: 1) whether the
trial court erred in holding that the certificate of deposit carried a right of survivorship;
and 2) whether the trial court erred in approving Mr. Bomar’s attorney fees.
STANDARD OF REVIEW
The issues on appeal arise from a bench trial. “In all actions tried upon the facts
without a jury, the court shall find the facts specially and shall state separately its
conclusions of law and direct the entry of appropriate judgment.” Tenn. R. Civ. P. 52.01.
If the trial court makes the required findings of fact, appellate courts review the trial
court’s factual findings de novo upon the record, accompanied by a presumption of
correctness of the findings, unless the preponderance of the evidence is otherwise. Kelly
v. Kelly, 445 S.W.3d 685, 692 (Tenn. 2014) (citing Tenn. R. App. P. 13(d)). “For the
evidence to preponderate against a trial court’s finding of fact, it must support another
finding of fact with greater convincing effect.” State ex rel. Flowers v. Tenn. Trucking
Ass’n Self Ins. Grp. Trust, 209 S.W.3d 595, 598-99 (Tenn. Ct. App. 2006). Our review of
a trial court’s determinations on issues of law is de novo, without any presumption of
correctness. Lind v. Beaman Dodge, Inc., 356 S.W.3d 889, 895 (Tenn. 2011).
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ANALYSIS
I. THE CERTIFICATE OF DEPOSIT
Petitioner contends that the trial court erred in holding that the certificate of
deposit carried a right of survivorship and, therefore, passed to Executor following the
death of the decedent.
Our analysis of this issue is controlled by Tenn. Code Ann. § 45-2-703, as that
statute governs deposits to bank accounts and also certificates of deposits in the names of
two or more persons, such as the certificate of deposit here.1 Guess v. Finlay, No. E2011-
00947-COA-R3-CV, 2012 WL 1302779, at *5 (Tenn. Ct. App. Apr. 16, 2012). That
statute provides, in pertinent part, as follows:
(a) When a deposit has been made or is hereafter made, in any bank, in the
names of two (2) or more persons, payable to either, or survivor, the
deposit, or any part of the deposit, or any interest or dividend on the
deposit, may be paid to either person, whether the others are living or not;
and the receipt or acquittance of the person so paid shall be a valid and
sufficient release and discharge to the bank for any payment so made. . . .
....
(c) As used in subsections (c)-(f), “multiple-party deposit account” means a
deposit account, including a certificate of deposit, established in the names
1
Although neither party disputes that the certificate of deposit should be analyzed under Tenn.
Code Ann. § 45-2-703, we acknowledge that this court has reached differing conclusions on the
applicability of Tenn. Code Ann. § 45-2-703 to certificates of deposit. For instance, in Roberts v. Roberts,
this court held that “[t]he statute does not apply to certificates of deposit which require no signature card
and provide no withdrawal until maturity.” Roberts v. Roberts, 827 S.W.2d 788, 796 (Tenn. Ct. App.
1991). Several years later, this court found that “Roberts was wrongly decided” because the “plain
language of the statute extending its application to ‘multiple-party deposit account[s]’ expressly
includ[es] ‘a certificate of deposit, established in the names of, payable to, or in form subject to
withdrawal by two (2) or more natural persons. . . .’” Guess v. Finlay, No. E2011-00947-COA-R3-CV,
2012 WL 1302779, at *11 (Tenn. Ct. App. Apr. 16, 2012), no appeal filed (quoting Tenn. Code Ann.
§ 45-2-703(c)). However, a recent decision of this court cited to our holding in Roberts and held that an
appellant’s reliance on Tenn. Code Ann. § 45-2-703 for determining ownership of a certificate of deposit
was misplaced. In re Estate of Kirkman, No. W2016-00759-COA-R3-CV, 2017 WL 626826, at *4 (Tenn.
Ct. App. Feb. 15, 2017), no appeal filed.
We, like the Guess court, decline to ignore the plain language of the statute extending its
application to “a certificate of deposit, established in the names of, payable to, or in form subject to
withdrawal by two (2) or more natural persons,” such as the certificate of deposit at issue here. Tenn.
Code Ann. § 45-2-703(c); Guess, 2012 WL 1302779, at *5.
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of, payable to, or in form subject to withdrawal by two (2) or more natural
persons, or any of them, including, but not limited to, an account of the type
described in subsection (a).
(d)(1) When opening a multiple-party deposit account, or amending an
existing deposit account so as to create a multiple-party deposit account,
each bank shall utilize account documents that enable the depositor to
designate ownership interest therein in terms substantially similar to the
following:
(A) Joint tenants with right of survivorship;
(B) Additional authorized signatory; and
(C) Other deposit designations that may be acceptable to the bank.
(2) Account documents that enable the depositor to indicate the depositor’s
intent of the ownership interest in any multiple-party deposit account may
include any of the following:
(A) The signature card;
(B) The deposit agreement;
(C) A certificate of deposit;
(D) A document confirming purchase of a certificate of deposit; or
(E) Other documents provided by the bank or deposit institution that
indicate the intent of the depositor.
(e) Accounts described in subsection (c) shall establish the following
interests:
(1) A designation of joint tenants with right of survivorship, or substantially
similar language, shall be conclusive evidence in any action or proceeding
of the intentions of all named that title vests in the survivor;
....
(4) In the absence of any specific designation in accordance with subsection
(d), property held under the title, tenancy by the entireties, carries a right of
survivorship; property held under the title, joint tenancy, carries no right of
survivorship unless a contrary intention is expressly stated. Any other
person to whose order the accounts or certificate of deposit is subject shall
be presumed to have power of attorney with respect to the account or
certificate of deposit and not to be an owner of the account or certificate of
deposit. The presumptions may be rebutted by clear and convincing
evidence presented in the course of legal or equitable proceedings. . . .
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(f) Without incurring any liability, any bank may, but shall not be required
to, provide to depositors disclosures in form similar to the following:
(1) JOINT TENANTS WITH RIGHT OF SURVIVORSHIP. This
designation means that the deposit account or certificate of deposit shall
become the property of each owner as joint tenants, and that the survivor is
entitled to all moneys in the account or represented by the certificate even if
the first person to die had a will specifically directing disposition to
someone else. The bank may release all moneys in the account or
represented by the certificate to, or honor checks or orders drawn by, or
withdrawal requests from, the survivor upon the death of any joint
tenant; . . . .
(2) ADDITIONAL AUTHORIZED SIGNATORY. This designation means
that the person named as additional authorized signatory shall have
authority during the lifetime of one (1) or more owners to withdraw moneys
from the deposit account or represented by the certificate of deposit.
Moneys remaining in the account or represented by the instrument upon the
owner’s death shall become part of the deceased owner’s estate, subject to
the deceased person’s will or applicable law if the deceased person left no
will. The bank may release all moneys in the account or represented by the
certificate to, or honor checks or orders drawn by, or withdrawal requests
from, the authorized signatory until notified of revocation of the authority.
(g) Subsections (c)-(f) shall not apply to any accounts in existence prior to
January 1, 1989.
Tenn. Code Ann. § 45-2-703(a), (c)-(f).
Petitioner argues that Executor cannot rely on the conclusive presumption
established by Tenn. Code Ann. § 45-2-703(e)(1) because the documents submitted into
evidence, and specifically the Signature Card, do not bear the signature of the decedent.
We find this argument unpersuasive.
As applicable here, Tenn. Code Ann. § 45-2-703(d)(1) requires a bank to “utilize
account documents that enable the depositor to designate ownership interest” when
establishing an account in the names of two or more people. The statute expressly
provides that such account documents “may include any of the following: (A) The
signature card; (B) The deposit agreement; (C) A certificate of deposit; (D) A document
confirming purchase of a certificate of deposit; or (E) Other documents provided by the
bank or deposit institution that indicate the intent of the depositor.” Tenn. Code Ann.
§ 45-2-703(d)(2). Conspicuous by its absence in Tenn. Code Ann. § 45-2-703 is a
requirement that any documents referred to therein be signed by anyone.
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In accordance with Tenn. Code Ann. § 45-2-703(d)(1), Regions Bank utilized
account documents that enabled the decedent to designate ownership interest in the
certificate of deposit. Specifically, pursuant to the Deposit Account Agreement and
Disclosure, the decedent and Executor would hold the account as joint tenants with it a
right of survivorship unless designated otherwise on the Signature Card. The Signature
Card confirmed that the account was held as joint tenants with right of survivorship. In
our view, this ends our inquiry regarding ownership of the certificate of deposit. This is
because, under the clear language of the statute, the decedent’s intent that the certificate
of deposit carries with it a right of survivorship is conclusively established by the
documents utilized by the bank. Tenn. Code Ann. § 45-2-703(e)(1); Guess, 2012 WL
1302779, at *11. Moreover, there is no proof, or even an allegation, that, in purchasing
the certificate of deposit, the decedent did so because of fraud, duress, or undue
influence. Thus, there is nothing more that needs to be said in resolving this aspect of the
appeal.
Under the record before us, the wording of the certificate of deposit is “conclusive
evidence . . . that title vests in the survivor.” Tenn. Code Ann. § 45-2-703(e)(1).
Accordingly, we hold that the certificate of deposit properly passed to the Executor by
operation of law and, therefore, was properly excluded by the trial court from the probate
proceedings.
II. ATTORNEY FEES
We turn next to Petitioner’s assertion that the trial court erred by approving
payment of Mr. Bomar’s attorney fees.
Decisions regarding an award of reasonable attorney’s fees are generally within
the discretion of the trial court. Wright ex rel. Wright v. Wright, 337 S.W.3d 166, 176
(Tenn. 2011). We review discretionary decisions pursuant to the “abuse of discretion”
standard of review. Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 524 (Tenn. 2010). The
abuse of discretion standard does not permit reviewing courts to substitute their discretion
for the trial court. Id. Nevertheless, the abuse of discretion standard of review does not
immunize a lower court’s decision from any meaningful appellate scrutiny. Id. When
reviewing a discretionary decision, the appellate court is to determine, where applicable,
whether there is a factual basis for the decision in the record, whether the court correctly
identified and properly applied the relevant legal principles, and whether the decision is
within the range of acceptable alternative dispositions. Id. at 525.
In this case, Executor requested approval of attorney fees he paid to Mr. Bomar in
the amount of $20,000. The trial court approved fees in the amount of $12,400 and
disapproved fees in the amount of $7,600. The court’s ruling from the bench reads, in
pertinent part, as follows:
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[T]he cultural history of fees within our judicial district has long been since
they were – they were charged as percentages. It’s just with the recent
advent of greater scrutiny on those that we have come to even think too
much about that. And I think probably, rightfully, that we should be
thinking about that if -- if as lawyers we want to have credibility going
forward. And [Counsel for Petitioner] is right, and I cannot escape the
finding that there was nothing before today that would have shown what
Mr. Bomar did. The only real question I have in my mind is does the fact
that I now have it satisfy where we are. Does it -- because it did appear
today, does that mean that it’s automatically disqualified or not. I have no
idea what minds brighter than mine would do with that going up. I -- I just
don’t know.
I can tell you that there are even still in existence today local rules that
contemplate a percentage as being an appropriate matter. The difficulty of
this estate cannot be understated. The potential risks associated with trying
to tightrope between these two vigorous litigants cannot be understated.
As it relates to the Court’s analysis adding to those statements, I must
respectfully disagree with [Counsel for Petitioner’s] analysis of parallelism
in this circumstance. I don’t think that there is an automatic parallel
between what Mr. Bobo’s fee was as it relates to reasonability versus what
Mr. Bomar’s fee should be because the parallel conduct only occurs after
we got into the vigorous disagreement side of it. It really has nothing to do
with making sure we have the rest of it taken care of. And by the rest of it, I
mean the initial conference, the initial filing of papers, those things that go
along with dealing with difficulties like these. . . .
So I have an affidavit now that says 72 hours, which [Counsel for
Petitioner] believes is too long, and I -- and I understand the thought
process behind that, especially in light of Mr. Bobo’s fee request. Having
heard what I’ve heard since 9:00 o’clock this morning, it strikes me as
being more reasonable than I might have first anticipated it being. I think
the Court, even under that rule, would have an obligation . . . to review
those fees for – requests for reasonableness. . . .
Looking at [the contract] and [the itemization of hours] . . . the Court
believes that automatically the miscellaneous provision on the last page of
[the itemization of hours] should be disregarded, which would drop his time
frame from 72 plus hours down to 62 hours. In reviewing the rest of the
approximate hours, although they may appear based upon [Counsel for
Petitioner’s] analysis to be too much, the Court finds that they’re
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appropriate and within the appropriate standard to be applied here. The
Court would grant a fee consistent with 62 hours at Mr. Bomar’s hourly
rate, which was communicated to [Executor] at the time of the letter at
$200 an hour. The Court’s referencing [the contract] as it relates to that.
When folks disagree and cannot come to reasonable terms, it automatically
gets more expensive, especially in these settings.
Petitioner argues that the trial court erred in authorizing any fee to be paid by the
estate. Alternatively, Petitioner argues that Mr. Bomar’s fee award is excessive. We will
discuss each argument in turn.
A.
Petitioner asserts that the trial court should not have approved any of Mr. Bomar’s
fees because his contract with Executor provided that his fee was based on a percentage
formula. Petitioner’s argument, as we understand it, is that this court’s opinion in In re
Estate of Thompson, No. M2011-00411-COA-R3-CV, 2012 WL 912859 (Tenn. Ct. App.
Mar. 14, 2012) perm. app. denied (Tenn. Mar. 14, 2012), stands for the legal proposition
that charging a fee based on a percentage formula in a probate matter is “per se unlawful
and violate[s] Rule 1.5 of the Rules of Professional Conduct.” We disagree.
Contrary to the Petitioner’s assertion, in Thompson, we did not hold that a
percentage fee in an estate is per se invalid; rather, the court held that the trial court erred
by relying primarily on a percentage formula provided in a local rule without considering
whether the fee was reasonable in accordance with the factors set forth in Rule 1.5(d) of
the Rules of Professional Conduct. See Thompson, 2012 WL 912859, at *6-7.2 Moreover,
Rule 1.5(d) identifies only two types of prohibited fees, contingency fees in certain
domestic cases and contingent fees in criminal cases, neither of which are applicable
here. Tenn. Sup. Ct. R. 8, RPC 1.5(d).
2
In Thompson, the trial court approved attorney fees for an estate’s attorney based on the
percentage formula set forth in a local rule. Thompson, 2012 WL 912859, at *7. On appeal, this court
found that the trial court “stray[ed] beyond the applicable legal standards” by explicitly relying on the
percentage formula set forth in the local rule. Id. (quoting Lee Med., 312 S.W.3d at 524). The court
explained that regardless of whether the local rule concerning the fee to be awarded to an attorney is
characterized as a “guide,” a trial court is not permitted to rely on such a percentage formula in setting the
fee but must instead utilize “the individualized weighing process mandated by the Supreme Court.” Id. at
*6. The Thompson court then went on to determine the reasonable fee that the attorney was owed for the
services rendered in the case, considering, among other things, the hours worked by the attorney, any
extraordinary services rendered, “the novelty and difficulty of the questions involved,” and “the fee
customarily charged in the locality for similar legal services.” Id. at *10-11 (quoting Tenn. Sup. Ct. R. 8,
RPC 1.5).
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In this case, the trial court specifically stated that it had an obligation to review the
Mr. Bomar’s fee requests for reasonableness, regardless of the local rule. Petitioner has
cited no other authority for her proposition that charging percentage fees are per se
unlawful in probate cases such that no attorney fees should be awarded, and we have
found none. Accordingly, we find this issue without merit.
B.
Alternatively, Petitioner asserts that Mr. Bomar’s fee award is excessive. As to
this issue, Petitioner insists that the record is “replete with examples where it is clear that
Mr. Bomar was protecting the individual interests of [Executor] at the expense of
[Petitioner]” and that Mr. Bomar’s itemization of hours was not credible. Instead of
including facts with citations to the record in support of these allegations, Petitioner
merely offers conclusions such as “these points seem obvious” and “[a] review of the
matters contained in the Record . . . would justify the reasonable conclusion that certainly
no more than five or ten hours could have been expended by Mr. Bomar’s work, most of
which was devoted to [Exectuor’s] holy war with his previously beloved sister,
[Petitioner].” By failing to cite to any portions of the record in support of this claim of
error, Petitioner has waived her argument as to this issue. See Tenn. R. App. P. 27(a)(7)
(requiring briefed arguments to include “appropriate references to the record”).
Despite Petitioner’s waiver of this issue, our review of the record demonstrates
that the trial court did not abuse its discretion in its approval of Mr. Bomar’s attorney
fees. The trial court correctly identified the applicable legal principle when reviewing Mr.
Bomar’s fee requests of $20,000, that being the reasonableness of the fee in consideration
of the factors set forth in Rule 1.5(d) of the Rules of Professional Conduct. The trial court
then properly applied that principle to the facts of this case to support its conclusion that a
fee in the amount of $12,400, consistent with 62 hours at Mr. Bomar’s hourly rate of
$200 pursuant to his contract with Executor, was a reasonable fee for Mr. Bomar’s legal
services considering, inter alia, the difficulty of this estate.
In view of the facts and circumstances of this case, we find the fee approved by
the trial court within the range of acceptable alternative dispositions. See Lee Med., 312
S.W.3d 524. Therefore, the trial court’s award of fees in the amount of $12,400 to Mr.
Bomar is affirmed.
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IN CONCLUSION
The judgment of the trial court is affirmed, and this matter is remanded with costs
of appeal assessed against Peggy Bingham Artley.
________________________________
FRANK G. CLEMENT, JR., P.J., M.S.
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