Lexon Insurance Company v. Windhaven Shores, Inc. ( 2019 )

08/27/2019
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
April 11, 2018 Session
LEXON INSURANCE COMPANY v. WINDHAVEN SHORES, INC. ET AL.
Appeal from the Chancery Court for Davidson County
No. 15-165-III Ellen Hobbs Lyle, Chancellor
___________________________________
No. M2017-00959-COA-R3-CV
___________________________________
In this appeal arising from a suit on an indemnity agreement, the indemnitee plaintiff
moved for summary judgment. In response, one of the named indemnitors claimed that
she could not determine if the signature on the agreement was hers. Another named
indemnitor claimed that he was not sure if the signature on the agreement was his but
conceded that it could be. And neither purported indemnitor recalled signing the
indemnity agreement. The trial court determined that there was no genuine issue of
material fact and granted summary judgment. On appeal, the purported indemnitors
claim that, because the authenticity of their signatures was in dispute, summary judgment
was improper. Alternatively, if summary judgment was appropriate on the issue of
liability, the purported indemnitors claim that the trial court erred in its award of damages
by including certain unpaid bond premiums and attorney’s fees. We affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed
W. NEAL MCBRAYER, J., delivered the opinion of the court, in which ANDY D. BENNETT
and RICHARD H. DINKINS, JJ., joined.
Mike J. Urquhart, Nashville, Tennessee, for the appellants, the Estate of Jack Williams
and Frances Williams.
Philip L. Robertson and Katherine Garro McCain, Franklin, Tennessee, for the appellee,
Lexon Insurance Company.
OPINION
I.
A.
As a condition to obtaining final plat approval for a section of a residential
subdivision, the Metropolitan Planning Commission for Nashville and Davidson County
required the developer, Windhaven Shores, Inc., to provide a performance bond for the
public improvements in the section.1 The performance bond took the form of a
“Performance Agreement” signed by Windhaven Shores, as principal, and Lexon
Insurance Co., as surety, in which they both bound themselves in a penal sum of
$334,500 as guarantors for the completion of the public improvements.
Days before execution of the performance agreement, Windhaven Shores and Jack
Williams Construction Co. signed, allegedly along with five individuals, a General
Agreement of Indemnity (the “Indemnity Agreement”) in favor of Lexon. In
consideration for Lexon agreeing to serve as surety under the performance agreement, the
parties to the Indemnity Agreement agreed to “indemnify and save [Lexon] harmless
from and against every claim, demand, liability, cost, charge, suit, judgment and expense
which [Lexon] may pay or incur in consequence of having executed, or procured the
execution of, such bond[ ].” The indemnified obligations specifically extended to “fees
of attorneys” as well as to “the expense of procuring, or attempting to procure, release
from liability, or in bringing suit to enforce the obligation of any of the indemnitors under
[the Indemnity Agreement].” The Indemnity Agreement covered all current and future
performance agreements that might be executed by Lexon on behalf of any one of the
indemnitors.
As work progressed on the subdivision, Windhaven Shores and Lexon signed
additional performance agreements in favor of the planning commission, which were
similar to the first. The additional performance agreements guaranteed the completion of
the public improvements in other sections of the subdivision.
Problems arose when Lexon’s obligations as surety under the performance
agreements came up for renewal. Despite sending invoices, Lexon’s efforts to collect
renewal premiums or, alternatively, to obtain a release of its obligations under the
performance agreements proved unsuccessful. Then Lexon received separate demands
1
The facts are taken from the parties’ pleadings or the statement of undisputed material facts and
responses. In some instances, the facts are undisputed only for the purposes of ruling on the motion for
summary judgment. See Tenn. R. Civ. P. 56.03.
2
from the planning commission under the performance agreements due to Windhaven
Shores’s alleged failure to complete improvements in the subdivision.
Ultimately, the Metropolitan Government of Nashville & Davidson County, on
behalf of the planning commission, sued Windhaven Shores and Lexon for failure to
complete the public improvements in the subdivision and for breach of the performance
agreements. Windhaven Shores did not respond to the complaint.
Lexon settled a portion of the suit, with Lexon agreeing to complete some of the
improvements. Lexon spent $144,172.10 on this effort. The case proceeded on the
issues of whether, under the performance agreements, Lexon guaranteed completion of
turn lanes on the public road providing access to the subdivision and, if so, whether
Lexon could be held solely liable for that work.2 Lexon lost in the trial court, and while
the case was on appeal to this Court, Lexon agreed to settle with Metro by payment of
$121,000. The parties’ settlement agreement provided that, with receipt of the $121,000
payment, the performance agreements would be “deemed satisfied in full and rendered
null, void, and of no further operation and effect.”
B.
Having incurred expenses in completing the public improvements and defending
against Metro’s suit, Lexon sued in the Chancery Court of Davidson County, Tennessee,
seeking recovery of those amounts plus unpaid premiums and attorney’s fees and costs
under the terms of the Indemnity Agreement. Lexon named as defendants Windhaven
Shores, Jack Williams Construction Co., spouses Jack and Frances Williams, and Bonnie
Saindon, claiming that each had signed the Indemnity Agreement.3 Neither Windhaven
Shores nor Jack Williams Construction Co. answered the complaint. In their answers, the
individual defendants each denied Lexon’s allegations that they signed the Indemnity
Agreement, albeit for different reasons. Ms. Saindon denied signing the Indemnity
Agreement while Mr. and Mrs. Williams answered that they could “not recall” signing
the Indemnity Agreement.
Lexon moved for summary judgment against the defendants, including those that
had not answered. In support of its motion, among other things, Lexon relied on the
declaration of Michael Belinski, an employee and attorney for Lexon. Under penalty of
perjury and based on his personal knowledge, Mr. Belinski stated that each of the
defendants executed the Indemnity Agreement.
2
Metro sued other bonding companies involved in the subdivision’s development in addition to
Lexon.
3
Lexon also named as defendants Ms. Saindon’s spouse, Robert W. Saindon, and Robert W.
Phillips. Mr. Saindon died shortly after the suit was filed. Mr. Phillips answered, pleading discharge in
bankruptcy as an affirmative defense. See Tenn. R. Civ. P. 8.03.
3
Ms. Saindon responded with her own motion for summary judgment. Her
accompanying affidavit stated that “I have reviewed the Indemnity Agreement, and I did
not sign it, nor did I authorize someone to sign the Indemnity Agreement on my behalf.”
The affidavit went on that “[t]he signature on the Indemnity Agreement purporting to be
mine was forged and is fraudulent.” In addition to her affidavit, Ms. Saindon exhibited to
her motion the signature page from the Indemnity Agreement and, as examples of her
signature, other documents she had signed.
Mr. and Mrs. Williams also submitted affidavits in opposition to Lexon’s motion
for summary judgment. Mrs. Williams’s affidavit stated that she “ha[d] no knowledge or
recollection of signing the referenced October 29, 2003 Indemnity Agreement.” She
explained that “I do not admit that one of the signatures [on the Indemnity Agreement]
appears to be mine as I have looked at the signature and I cannot determine for sure it to
be mine.”
Mr. Williams’s affidavit also stated that he could not recall signing the Indemnity
Agreement. But then he conceded that he was unsure whether the signature on the
Indemnity Agreement was his, blaming both the passage of time and his advanced age.
I have looked at the signatures on the [Indemnity Agreement], I cannot
definitively state that one of those signatures is or is not mine, I am not
sure. Frankly it could or could not be mine. I just don’t know. You must
understand that I am 87 years old, and the loss of my memory is very
frustrating for me. This document was signed almost 15 years ago and I
just don’t remember.
In his affidavit, Mr. Williams also offered that he had “looked at the signature of Francis
[sic] Williams, and it does not appear to be her signature.”
In addition to the attack by Mr. and Mrs. Williams on the Indemnity Agreement,
their response took issue with Lexon’s damages claim. They contended that Lexon could
not recover premiums accruing after the breaches of the performance agreements and the
liability under those agreements were determined. Their response to the motion for
summary judgment made no mention of Lexon’s request for an award of attorney’s fees.
But in response to Lexon’s statement of material facts, Mr. and Mrs. Williams disputed
that Lexon had “incurred attorney’s fees and costs in the amount of $69,459.90.”
Specifically, they replied “[d]isputed as to the reasonableness and customary amount of
the fees.” Mr. and Mrs. Williams also provided an affidavit from an attorney, which
stated that he was unable to determine whether the attorney’s fees and costs incurred by
Lexon were reasonable and necessary due to insufficient detail.
The trial court granted Lexon’s motion for summary judgment in part and denied
it in part. The court granted summary judgment against Windhaven Shores and Jack
4
Williams Construction Co. Neither entity replied to the motion for summary judgment.
The court denied the summary judgment against Ms. Saindon as well as her cross-motion
for summary judgment. In response to her cross-motion, Lexon submitted an affidavit
offering impeachment testimony to Ms. Saindon’s, countering her claim that she was
unaware of the Indemnity Agreement until Lexon filed suit. The affidavit also offered
other samples of Ms. Saindon’s signature that matched her alleged signature on the
Indemnity Agreement. The court concluded that there were “genuine issues of material
fact for trial[:] whether she signed the Indemnity Agreement, authorized some[one] else
to sign the Agreement on her behalf, and/or whether the Saindon signature [wa]s forged
and fraudulent.”
The court granted Lexon summary judgment against Mr. and Mrs. Williams. It
determined their affidavits were insufficient to overcome “the legal presumption in favor
of the validity and regularity of written instruments.” Rather than setting forth “clear and
satisfactory evidence that Defendant[s] Jack and Frances Williams did not sign the
Indemnity Agreement,” the affidavits “raise[d], at best, metaphysical doubts as to the
validity of the signatures.” The court concluded that this was “insufficient to defeat
summary judgment.”
The court noted that, “[i]n addition to defending against liability based upon
invalid signatures, Defendants Jack and Frances Williams contest the Plaintiff’s
calculation of damages.” But the court identified the issue as only related to the amount
of premiums owed. It considered the issue waived because their argument was “not
supported by any legal authority, analysis, citation to provisions in the Indemnity
Agreement, or citation to the record.” So the court awarded Lexon a judgment against
Mr. and Mrs. Williams, jointly and severally, in the amount of $446,585.00, which
included $69,459.90 in attorney’s fees and costs and $111,953.00 in unpaid premiums.
The court also certified the judgment as final. See Tenn. R. Civ. P. 54.02.
II.
On appeal, Mr. and Mrs. Williams raise three issues for review.4 The first relates
to whether summary judgment was proper and is stated somewhat generically as “Did the
trial court err when it granted summary judgment to the Plaintiff?” The second two
issues relate to the monetary judgment. We address those issues below.
4
Mr. Williams passed away shortly after oral argument in this case. We granted leave to
substitute Peggy D. Mathes, administrator ad litem for the Estate of Jack Williams, as appellant in the
place of Mr. Williams. See Tenn. R. App. P. 19.
5
A.
Summary judgment is appropriate “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law.” Tenn. R. Civ. P. 56.04. The moving party has the initial
“burden of persuading the court that no genuine and material factual issues exist and that
it is . . . entitled to a judgment as a matter of law.” Byrd v. Hall, 847 S.W.2d 208, 211
(Tenn. 1993). If, as is the case here, “the moving party bears the burden of proof on the
challenged claim at trial, that party must produce at the summary judgment stage
evidence that, if uncontroverted at trial, would entitle it to a directed verdict.” TWB
Architects, Inc. v. Braxton, LLC, ___ S.W.3d ___, No. M2017-00423-SC-R11-CV, 2019
WL 3491467, at *7 (Tenn. July 22, 2019) (citing Celotex Corp. v. Catrett, 477 U.S. 317,
331 (1986) (Brennan, J., dissenting)).
If the moving party satisfies its burden, then the nonmoving party must
demonstrate that there is a genuine, material fact dispute or the motion for summary
judgment will be granted. Id. Satisfying this burden requires something more than the
allegations or denials of pleadings. Rye v. Women’s Care Ctr. of Memphis, MPLLC, 477
S.W.3d 235, 265 (Tenn. 2015). The nonmoving party must “by affidavits or one of the
other means provided in Tennessee Rule 56, ‘set forth specific facts’ at the summary
judgment stage ‘showing that there is a genuine issue for trial.’” Id. (quoting Tenn. R.
Civ. P. 56.06). We accept the evidence offered by the nonmoving party as true. Byrd,
847 S.W.2d at 215.
A trial court’s decision on a motion for summary judgment enjoys no presumption
of correctness on appeal. Martin v. Norfolk S. Ry. Co., 271 S.W.3d 76, 84 (Tenn. 2008);
Blair v. W. Town Mall, 130 S.W.3d 761, 763 (Tenn. 2004). We review the summary
judgment decision as a question of law. Rye, 477 S.W.3d at 250; Martin, 271 S.W.3d at
84; Blair, 130 S.W.3d at 763.
In the argument section of their brief, Mr. and Mrs. Williams expand on their first
issue by explaining that summary judgment was improper because “a material question of
fact existed as to the execution of the [Indemnity] [A]greement.” According to them, the
specific facts showing that execution of the Indemnity Agreement was at issue are that
Mr. Williams “is claiming he did not recall signing the document and cannot state that the
signature is his” and Mrs. Williams is “claiming that she does not recall signing the
document and that the signature is not hers.” Taking their claims together with
Ms. Saindon’s testimony that her signature was forged, Mr. and Mrs. Williams submit
that there was more than a metaphysical doubt as to the authenticity of the Indemnity
Agreement. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986), quoted in Rye, 477 S.W.3d at 251.
6
As an initial matter, we disagree with the characterization of the facts.
Mrs. Williams never denied that the signature on the Indemnity Agreement was hers.
Not unlike her husband, she stated that “I do not admit that one of the signatures [on the
Indemnity Agreement] appears to be mine as I have looked at the signature and I cannot
determine for sure it to be mine.” None of the statements in her affidavit amount to a
denial that the signature appearing above her printed name was hers. The question in this
case is whether this mattered.
The trial court concluded that a lack of a denial mattered based upon “the
presumption in favor of the validity and regularity of written instrument[s].” See Ervin v.
Ervin, No. 86-95-II, 1986 WL 9007, at *2 (Tenn. Ct. App. Aug. 22, 1986). The court
went on to quote cases of this Court holding that a “person asserting the invalidity [of a
written instrument] has the burden o[f] proving his allegations by clear and satisfactory
evidence.” Id. But the presumption relied on by the trial court and the corresponding
burden for overcoming it apply only if a party is challenging a document accompanied by
a certificate of acknowledgment.5 See id. at *1; Kyle v. Kyle, 74 S.W.2d 1065, 1067
(Tenn. Ct. App. 1934); Kennedy v. Sec. Bldg. & Sav. Ass’n, 57 S.W. 388, 395 (Tenn. Ch.
App. 1900); see also In re Marsh, 12 S.W.3d 449, 453 (Tenn. 2000) (A party “should be
able assume that if [a document] contains an acknowledgment to which a notary’s seal is
affixed, then it has been properly authenticated and is valid, that is, free from apparent
forgery or fraud.”). As Mr. and Mrs. Williams point out, their signatures on the
Indemnity Agreement were not acknowledged. See Tenn. Code Ann. §§ 66-22-101 to
-105 (2015 & Supp. 2018).
1. Authentication of the Indemnity Agreement
Before we consider whether the affidavits of Mr. and Mrs. Williams showed that
there was a genuine issue for trial, we must make our own determination of whether
Lexon satisfied its initial burden on summary judgment. See Eadie v. Complete Co., 142
S.W.3d 288, 291 (Tenn. 2004); Blair, 130 S.W.3d at 763. Part of this burden included
proof of “the existence of a valid and enforceable contract.” Fed. Ins. Co. v. Winters, 354
S.W.3d 287, 291 (Tenn. 2011).
In substance, if not necessarily in form, evidence filed in “support [of] a motion
for summary judgment must be admissible.” Shipley v. Williams, 350 S.W.3d 527, 564-
65 & n.12 (Tenn. 2011) (Koch, J., concurring in part and dissenting in part); see also
Byrd, 847 S.W.2d at 215-16 (“[T]he facts on which the nonmovant relies must be
5
Lexon relies on Ali v. Professional Real Estate Developers, Inc., for the proposition that,
“[w]hen a written instrument is challenged based on the allegation that a signature on the instrument has
been forged, the burden of proving the existence of a forgery is on the party seeking to invalidate the
instrument.” M1999-00082-COA-R3-CV, 2000 WL 192562, *4 (Tenn. Ct. App. 2000). Ali involved a
challenge to the signature on a general power of attorney. Id. at *1. The decision does not indicate
whether the challenged signature was acknowledged.
7
admissible at the trial but need not be in admissible form as presented in the motion
(otherwise an affidavit, for example, would be excluded as hearsay).”).
To be admissible, evidence at the summary judgment stage must satisfy the
requirements of the Tennessee Rules of Evidence, as well as any other
requirements controlling the admissibility of particular types of evidence.
Thus, evidence that would be substantively inadmissible at trial would
likewise be inadmissible at the summary judgment stage.
Shipley, 350 S.W.3d at 565 (Koch, J., concurring in part and dissenting in part). An
abuse of discretion standard applies to decisions regarding the admissibility of evidence
filed in support of or in opposition to motions for summary judgment. Id. at 552
(majority opinion).
Generally, “authenticity of a private writing must be established before it may be
admitted in evidence.”6 Haury & Smith Realty Co. v. Piccadilly Partners I, 802 S.W.2d
612, 614 (Tenn. Ct. App. 1990). Authentication “is satisfied by evidence sufficient to the
court to support a finding by the trier of fact that the matter in question is what its
proponent claims.” Tenn. R. Evid. 901(a). For signed writings, this would include proof
of signing by the party to the writing. Haury & Smith Realty Co., 802 S.W.2d at 614. So
“[a] writing standing alone is not evidence; it must be accompanied by competent proof
of some sort from which the [trier of fact] can infer that it is authentic and that it was
executed or written by the party by whom it purports to be written or executed.” Id.
On this record, we cannot conclude that the trial court abused its discretion in
considering the Indemnity Agreement admissible for purposes of summary judgment. To
authenticate the Indemnity Agreement, Lexon relied on the declaration of its employee,
Mr. Belinski, who testified on personal knowledge that Mr. and Mrs. Williams
“executed” the Indemnity Agreement. The declaration was sufficient for the court to
infer that the Indemnity Agreement was authentic and that it was in fact signed by
Mr. and Mrs. Williams. The “testimony of a witness who saw the alleged signor sign the
writing” is one method to prove that a signature on a document was made by the person
who purportedly signed it. 32A C.J.S. Evidence § 1091, Westlaw (database updated June
2019).
On appeal, Mr. and Mrs. Williams complain that Mr. Belinski’s declaration lacks
specifics.7 The declaration “only states that the ‘defendants signed’ the document, but
6
Some writings are self-authenticating and require no “[e]xtrinsic evidence of authenticity as a
condition precedent to admissibility.” Tenn. R. Evid. 902.
7
Mr. and Mrs. Williams did not bring their concerns about the lack of detail in Mr. Belinski’s
declaration to the court’s attention in responding to the motion for summary judgment. Ordinarily, the
“[f]ailure to object [to] evidence in a timely and specific fashion precludes taking issue on appeal with the
admission of the evidence.” Grandstaff v. Hawks, 36 S.W.3d 482, 488 (Tenn. Ct. App. 2000); see Tenn.
8
does not indicate . . . how he obtained this knowledge.” The declaration does lack detail
surrounding how Mr. Belinski came to witness the execution of the Indemnity
Agreement. And a lack of detail can lead to the conclusion that the declarant or affiant
lacks the necessary personal knowledge to competently testify. See Tenn. R. Evid. 602;
see also Synovus Bank v. Paczko, No. M2014-00897-COA-R3-CV, 2015 WL 3455965, at
*4 (Tenn. Ct. App. May 29, 2015). Still we conclude that the declaration affirmatively
shows Mr. Belinski’s competence to testify to the execution of the Indemnity Agreement.
See Tenn. R. Civ. P. 56.06. An explanation of the basis of one’s personal knowledge is
not necessary if “personal knowledge can be reasonably inferred based on the affiant’s
position and other facts contained in the affidavit.” Wells Fargo Bank v. Hammond, 22
N.E.3d 1140, 1147 (Ohio Ct. App. 2014). We can make such an inference here.
2. Presumption of Execution
Although we conclude that the trial court applied a presumption that is only
applicable to acknowledged documents, we conclude a similar presumption applied once
the Indemnity Agreement was deemed admissible. Under Tennessee Code Annotated
§ 24-5-105, “[t]he execution or assignment of instruments offered in evidence by the
defendant, when allowed by law, is equally conclusive as when introduced by plaintiff,
unless denied under oath.” Tenn. Code Ann. § 24-5-105 (2017). The presumption has
been described as a “rule[ ] of evidence” that “makes the instruments embraced therein
conclusive unless denied under oath.” Birchfield Grocery Co. v. Swaney & Wear, 290
S.W. 24, 25 (Tenn. 1926).
In light of the statutory presumption, we conclude that there was no dispute of fact
concerning the execution of the Indemnity Agreement by Mr. and Mrs. Williams. Unlike
Ms. Saindon, Mr. and Mrs. Williams never denied their signatures under oath. Even
accepting their testimony as true, their affidavits at most establish that Mr. and
Mrs. Williams do not recall signing the Indemnity Agreement and that Mrs. Williams
cannot determine if the signature on the document is hers. Mr. Williams further testified
that the signature on the Indemnity Agreement purporting to be Mrs. Williams’s does not
appear to be hers. The proof offered was insufficient to overcome the statutory
presumption and show that there was a genuine issue for trial.
B.
As noted above, the remaining two issues relate to the monetary judgment. Mr.
and Mrs. Williams argue that the trial court erred in awarding Lexon premiums that came
due following the breach of the performance agreements. They also assign error to the
court’s award of attorney’s fees.
R. App. P. 36(a). But we reach the issue because we must review de novo whether Lexon satisfied the
requirements of Rule 56. See Eadie v. Complete Co., 142 S.W.3d at 291; Blair, 130 S.W.3d at 763.
9
The amount of damages is a question of fact. See Buice v. Scruggs Equip. Co.,
267 S.W.2d 119, 125 (Tenn. Ct. App. 1953). The selection of the measure of damages is
a conclusion of law, which we review de novo. GSB Contractors, Inc. v. Hess, 179
S.W.3d 535, 541 (Tenn. Ct. App. 2005).
1. Unpaid Premiums
Mr. and Mrs. Williams contend that premiums that came due after the breach of
the performance agreements represent a windfall to Lexon. According to the Williamses,
Lexon’s liability was fixed upon Windhaven Shores’s breach of the performance
agreements, “and the bond was useless after that date.”
We conclude that the trial court appropriately awarded the unpaid premiums
coming due after the breach by Windhaven Shores. Under the Indemnity Agreement, Mr.
and Mrs. Williams agreed to pay premiums until Lexon was “discharged and released
from any and all liability and responsibility upon and from each such bond or matters
arising therefrom, and until the Indemnitors . . . deliver[ed] to [Lexon] . . . competent
written evidence satisfactory to [Lexon] of its discharge from all liability on such bond or
bonds.” The Indemnity Agreement did not limit recovery of premiums to those accruing
through the date of any breach. Under the agreement, premiums remained due until
Lexon was discharged from all liability under the performance agreements and that only
occurred after Lexon reached a final settlement with Metro. The court enforced the
agreement as written. “[P]arties are entitled to have their contract enforced according to
its express terms.” Wilson Mgmt. Co. v. Star Distribs. Co., 745 S.W.2d 870, 873 (Tenn.
1988).
2. Attorney’s Fees
Mr. and Mrs. Williams do not dispute that the Indemnity Agreement permits
recovery of attorney’s fees. Instead, they argue that the trial court erred by not
considering whether the attorney’s fees Lexon sought “were reasonable, necessary, and in
accordance with the local rule and the rules of professional conduct.” Before the trial
court, Mr. and Mrs. Williams raised the issue of attorney’s fees only in their response to
Lexon’s statement of material facts. They also submitted an affidavit from an attorney
who testified that he was “unable to meaningfully review the basis for the amounts
requested.”
Lexon sought recovery of and the court awarded two types of attorney’s fees,
which impacts our review of the award. The court awarded attorney’s fees that Lexon
incurred in prosecuting this action against the indemnitors, and the court awarded
attorney’s fees that Lexon incurred in defending against and ultimately settling the suit
filed by Metro. We address each award separately.
10
a. Attorney’s Fees Incurred in Prosecuting the Action
The Indemnity Agreement authorized recovery of “fees of attorneys . . . in
bringing suit to enforce the obligation of any of the Indemnitors under th[e] [Indemnity
Agreement].” Although the word “fees” is not qualified by the word “reasonable,” we
read that word into the agreement to limit Lexon’s recovery to reasonable fees of
attorneys. See Moore v. Moore, 603 S.W.2d 736, 739 (Tenn. Ct. App. 1980). Where a
contract permits recovery of reasonable attorney’s fees, the burden of proof as to what is
a reasonable attorney’s fee rests with the party seeking recovery of the fee. Wilson
Mgmt. Co., 745 S.W.2d at 873. In determining a reasonable fee, the court looks to
several factors:
the time devoted to performing the legal service; the time limitations
imposed by the circumstances; the novelty and difficulty of the questions
involved and the skill requisite to perform the legal service properly; the fee
customarily charged in the locality for similar legal services; the amount
involved and the results obtained; and the experience, reputation, and
ability of the lawyer performing the legal service.
Kline v. Eyrich, 69 S.W.3d 197, 209 n.11 (Tenn. 2002). Although similar, the court also
considers those factors set forth in Rule 1.5 of the Tennessee Rules of Professional
Conduct. See id. at 209 & n.11; see also Tenn. Sup. Ct. R. 8, RPC 1.5.
Despite the burden of proof and various factors that go into determining a
reasonable fee, “a trial judge may fix the fees of lawyers in causes pending or which have
been determined by the court, with or without expert testimony of lawyers and with or
without a prima facie showing by plaintiffs of what a reasonable fee would be.” Wilson
Mgmt. Co., 745 S.W.2d at 873; see Kahn v. Kahn, 756 S.W.2d 685, 696-97 (Tenn. 1988)
(After hearing a matter, a trial judge may determine that he is sufficiently acquainted with
the appropriate factors to award attorney’s fees without hearing proof or opinions from
other lawyers.). So “reversal of a fee award is not required merely because the record
does not contain proof establishing the reasonableness of the fee.” Kline, 69 S.W.3d at
210.
In circumstances in which a court awards attorney’s fees under a contract that
authorizes recovery of reasonable fees “in the absence of any proof on the issue of
reasonableness, it is incumbent upon the [party challenging the fee] to pursue the
correction of that error in the trial court by insisting upon a hearing upon that issue.”
Wilson Mgmt. Co., 745 S.W.2d at 873. Mr. and Mrs. Williams did not do that. Thus, we
conclude that they cannot now challenge the court’s award of fees incurred in prosecuting
this action. See Tenn. R. App. P. 36(a).
11
b. Attorney’s Fees Incurred as Damages
The bulk of the attorney’s fees awarded were incurred in connection with Lexon’s
litigation with Metro. The Indemnity Agreement permitted Lexon to recover any “cost”
or “expense” that it “may pay or incur in consequence of having executed, or procured
the execution of, [the performance agreements] . . . including . . . the expenses of
procuring, or attempting to procure, release from liability.” Additionally, “the
Indemnitors agree[d] to accept the voucher or other evidence of such payment as prima
facie evidence of the propriety thereof, and of the Indemnitor’s liability therefore to
[Lexon].”
Lexon contends that Mr. and Mrs. Williams waived any challenge to the
reasonableness of the attorney fees it incurred in connection with the Metro litigation by
not properly raising the issue in the trial court. Lexon also contends that the indemnitors’
agreement to accept a voucher or similar evidence of payment “as prima facie evidence
of the propriety of” the expense contractually eliminated any requirement that it prove the
reasonableness of attorney’s fees incurred as damages.
Assuming for the sake of argument that Lexon had the burden of proving the
reasonableness of the attorney’s fees it incurred in connection with the Metro litigation,
we agree that Mr. and Mrs. Williams are not entitled to relief on this issue. They never
properly alerted the court to the issue in their response to Lexon’s motion for summary
judgment. See Tenn. R. App. P. 36(a). Also the Indemnity Agreement did not require
Lexon to supply the indemnitors with itemized billing statements from its attorney in the
Metro litigation. Instead the agreement required Lexon to provide a voucher or other
evidence of payment of costs and expenses. To the extent that itemized statements were
necessary in order to reply to Lexon’s motion for summary judgment, it was incumbent
upon Mr. and Mrs. Williams to seek additional time “to permit . . . depositions to be
taken or discovery to be had” regarding the requested fees. See Tenn. R. Civ. P. 56.07.
Finally, we note that the record includes proof on the issue of the reasonableness
of the fees incurred in the Metro litigation. In his declaration, Mr. Belinski testified that,
as counsel for Lexon, he managed outside counsel on a regular basis and that he was
familiar with the rates and billing practices of Tennessee attorneys. He then testified that,
“[b]ased on my knowledge and experience[,] it is my opinion that that these fees are
reasonable in scope and amount.”
III.
We conclude that there was no genuine issue as to any material fact and that
Lexon Insurance Co. was entitled to a judgment as a matter of law against Mr. and
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Mrs. Williams. We also find no error in the trial court’s award of damages or attorney’s
fees.
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W. NEAL MCBRAYER, JUDGE
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