Judd's Inc. v. Dors L. Muir ( 2000 )


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  •                  IN THE COURT OF APPEALS OF TENNESSEE
    AT KNOXVILLE
    August 10, 2000 Session
    JUDD'S INCORPORATED v. DORIS L. MUIR, ET AL.
    Direct Appeal from the Chancery Court for Cocke County
    No. 95-192 Telford E. Forgety, Jr., Chancellor
    FILED NOVEMBER 16, 2000
    No. E1999-01836-COA-R3-CV
    In this appeal Doris and Allan Muir insist that the Chancellor was in error in not allowing their
    homestead exemption as to certain funds realized from the sale of real estate to satisfy a judgment
    previously entered against them. Their attorney, W. Richard Baker, Jr., insists that the Chancellor
    was in error in not enforcing a lien for his attorney fees that he claimed was properly perfected as
    to the same funds. We affirm.
    Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed;
    Cause Remanded
    HOUSTON M. GODDARD, P.J., delivered the opinion of the court, in which CHARLES D. SUSANO, JR.,
    and D. MICHAEL SWINEY , JJ, joined.
    W. Richard Baker, Jr., Knoxville, Tennessee, for the Appellants, Doris L. Muir and Allan T. Muir
    James H. Ripley, Sevierville, Tennessee, for the Appellee Judd's Incorporated
    Edward H. Hamilton, Sevierville, Tennessee, for the Appellee Holladay-Tyler Printing, Inc.
    OPINION
    Doris L. Muir and husband, Allan T. Muir, appeal a judgment of the Chancery Court
    for Cocke County, insisting that the Trial Court should have granted them a homestead exemption
    as to monies realized from the sale of certain property sought to be attached and ultimately sold to
    satisfy judgments in favor of Judd's Incorporated and Holladay-Tyler Printing, Inc.
    Counsel for the Muirs appeals the Trial Court's refusal to enforce an attorney's lien,
    which he contends he is entitled to in his unsuccessful defense of the Muirs.
    By way of background, Plaintiff Judd’s, Incorporated, sought a judgment against
    Defendants Doris L. Muir and her husband Allan T. Muir, for printing and related services furnished
    in connection with a magazine entitled, “Muir’s Original Log Home Guide.” The suit also sought
    attachment of certain property owned by the Muirs.
    Judd’s also made as a party defendant another potential creditor of the Muirs,
    Holladay-Tyler Printing, Inc., which filed a cross action against the Muirs to recover printing charges
    incurred by Muir’s Original Log Home Guide.
    After a plenary hearing, the Chancellor found that under the facts developed it was
    appropriate to pierce the corporate veil and, consequently, rendered a judgment in favor of Judd’s
    and Holladay-Tyler against both Mr. Muir, who was sole stockholder of the Corporation, and Mrs.
    Muir, who was president and only officer of the Corporation.
    The case was appealed to this Court, and in an unreported opinion filed on June 26,
    1998, the judgments were affirmed and the cause remanded.
    Upon remand the Muirs filed a motion to have their $7500 homestead exemption
    enforced out of the monies paid into the court after the sale of the real estate. Thereafter, their
    counsel moved, after payment of Homestead, to enforce an attorney’s lien, which he contended was
    properly perfected, predicated upon a letter contract entered into with Mr. Muir, dated March 25,
    1996.
    We conclude that as to the homestead claim of the Muirs, the Trial Court was correct
    in finding they were not entitled to it because their principal residence, as shown by the answer to
    Judd’s original suit and their answer to Holladay-Tyler’s cross action, and as specifically found both
    by the Chancellor and this Court, was not in this State, but rather the Cayman Islands.
    As to the claim for attorney fees, we find the Trial Court was also correct in finding
    that the statute allowing attorney fees does not apply to defense counsel, but only a plaintiff’s
    counsel who has secured an award of monies or other property for his client.
    The statute providing for attorney’s liens is found in T.C.A. 23-2-102:
    23-2-102. Lien on right of action. -- Attorneys and solicitors of record
    who begin a suit shall have a lien upon the plaintiff’s or complainant’s right of
    action from the date of the filing of the suit.
    Before the foregoing statute was enacted in 1899, our appellate courts had found
    under certain circumstances attorneys would be entitled to a lien on property in the custody of the
    court. The principle appears to have been first recognized in the case of Hunt v. McClanahan,
    decided in the September Term of the Supreme Court in 1870, and found in 48 Tenn. at page 503,
    which declared that attorneys would have a lien upon property recovered or protected by their
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    services. The term “protected by” would seem to apply to attorneys representing a defendant. Two
    other cases were decided before passage of the statute in question. Hill v. Ford, 3 Tenn.Cas. 531
    (1875), holds that a defendant’s counsel is entitled to a lien even in the absence of a contract for
    services with a client. Hill, however, was specifically overruled by a later case, Garner v. Garner,
    
    69 Tenn. 29
     (1878), which holds that “the lien only exists in the case of the actual recovery of lands
    by a suit instituted for that purpose.” Garner, however, does suggest that if there had been a contract
    between counsel and client a different result might have resulted.
    Two cases have been decided since the statute in question was enacted. In Butler v.
    Givens, 
    193 S.W. 1063
     (Tenn.1917), the Court held that “in the absence of a contract, therefore, the
    solicitor cannot have a lien declared by the Court on realty defended and not recovered.” The most
    recent case we have found specifically holds that only counsel for a plaintiff is entitled to claim a
    lien under the statute. Chumley v. Thomas, 
    198 S.W.2d 551
     (1947). It should be noted, however,
    that none of the cases hold whether with contract or without contract, that unsuccessful counsel for
    the defendant is entitled to such a lien.
    Counsel for Judd’s and Holladay-Tyler contend that this Court should find that they
    are entitled to attorney fees incident to the appeal. We find their position to be well taken insofar
    as the Muirs are concerned, and upon remand the Trial Court shall hear such proof as is necessary
    in making an award of attorney fees against the Muirs.
    For the foregoing reasons the judgment of the Trial Court is affirmed, the cause
    remanded for an award of attorney fees against the Muirs and collection of costs below. Costs of
    appeal are adjudged equally against the Muirs and their surety and W. Richard Baker, Jr., their
    attorney.
    _________________________________________
    HOUSTON M. GODDARD, PRESIDING JUDGE
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Document Info

Docket Number: E1999-01836-COA-R3-CV

Judges: Judge Houston M. Goddard

Filed Date: 8/10/2000

Precedential Status: Precedential

Modified Date: 10/30/2014