Robert John Williams v. Mary Elizabeth (Williams) Evans ( 1996 )

IN THE COURT OF APPEALS OF TENNESSEE
EASTERN SECTION AT KNOXVILLE FILED
March 1, 1996
ROBERT JOHN WILLIAMS, )
Cecil Crowson, Jr.
) BLOUNT CIRCUIT
Appellate C ourt Clerk
Plaintiff/Appellee )
v. ) NO. 03A01-9511-CV-00400
)
MARY ELIZABETH (WILLIAMS) )
EVANS, )
) REVERSED and
Defendant/Appellant ) REMANDED
Judy Winegar Goans, Clinton, Attorney for the Appellant
Mark Silvey, Knoxville, Attorney for the Appellee
OPINION
INMAN, Senior Judge
The appellant sought an award of attorney fees of $31,205.48 and filed an
affidavit in explanation of the hours her attorney had expended in this case, which
involved the custody and support of one child.
The appellee made no response other than filing a proposed finding of fact
pursuant to invitation extended.
The trial judge awarded a fee of $1,250.00, stating:
Counsel for the Respondent has charged her client $31,205.48 for
fees and expenses in connection with her representation in this matter.
At an hourly rate of $100.00 per hour, these charges constitute 301.4
hours of time devoted to the case by the attorney. The Court is of the
opinion and finds that charges totaling $31,205.48 are exorbitant and
do not conform to the usual and ordinary time devoted to like cases by
the vast majority of the attorneys who practice at this bar. The Court
specifically finds that such charges do not constitute reasonable fees
incurred in any suit or action concerning the adjudication of the
custody or the change of custody of any child.
The appellant complains of the meagerness of the fee, alleging that it was
necessarily arbitrative.
TENN. CODE ANN . § 36-5-103(c) provides for the recovery by the plaintiff
spouse of reasonable attorney fees in the discretion of the Court. In Connors v.
Connors, 594 S.W.2d 672 (Tenn. 1981), the Supreme Court determined that
appropriate factors to be considered in fixing the amount of attorney fees were: (1)
the time devoted to performing the legal service; (2) the time limitations imposed by
the circumstances; (3) the novelty and difficulty of the questions presented and the
requisite skill required; (4) the fee customarily charged in the locality for similar
services; the amount involved and the results obtained; (6) the experience,
reputation and ability of the lawyer performing the legal service. See also SUPREME
COURT RULE 38, CODE OF PROFESSIONAL CONDUCT .
The appellant argues that the trial court's holding that the charges of her
attorney "do not conform to the usual and ordinary time devoted to like cases by the
vast majority of the attorneys who practice at this bar," has no support in the record.
We agree. The appellee did nothing; he made no response; he filed no
countervailing affidavits; he offered no contrary evidence. Courts are fueled by
evidence, not by philosophy.
This is not to say that the trial judge was bound by the affidavit of the
appellant's attorney as to the issue of the reasonableness of the fee requested.
Quite the contrary, the trial judge is obviously bound to determine the
reasonableness of the requested fee. The fact that the appellant and her attorney
agreed upon an hourly rate of $100.00 and that 301 hours were reasonably
expended on the case is not binding on this Court. We recognize that a fully
developed record of the nature and quantities of the service rendered is not a
prerequisite to an award of attorney fees. Kahn v. Kahn, 756 S.W.2d 685 (Tenn.
1980), but a trial judge should not be cast in the position of seeming arbitrariness.
We are unable to ascertain on what basis the award of $1,250.00 was made; neither
are we able to determine whether the appellant was afforded a fair opportunity to
explain and enlarge upon the affidavit presented. As we have noted, the appellee
filed no countervailing affidavits, and no hearing was had on the issue of fees. The
issue of reasonableness should abide the reception of evidence, and the judgment is
accordingly reversed and the case remanded for trial of the issue. If the arguments
presented in appellee's brief were in evidentiary form, the trial judge would have had
at least some basis for his decision. Sherrod v. Wix, 849 S.W.2d 780 (Tenn. App.
1992). Costs are assessed to the appellee.
2
_______________________________
William H. Inman, Senior Judge
CONCUR:
_______________________________
Herschel P. Franks, Judge
_______________________________
Charles D. Susano, Jr., Judge
IN THE COURT OF APPEALS OF TENNESSEE
EASTERN SECTION AT KNOXVILLE
ROBERT JOHN WILLIAMS, )
) BLOUNT CIRCUIT
Plaintiff/Appellee )
v. ) NO. 03A01-9511-CV-00400
3
)
MARY ELIZABETH (WILLIAMS) )
EVANS, )
) REVERSED and
Defendant/Appellant ) REMANDED
JUDGMENT
This appeal came on to be heard upon the record from the Circuit Court of
Blount County and briefs filed on behalf of the respective parties. Upon
consideration thereof, this court is of the opinion that there is reversible error in the
trial court's judgment.
It is therefore, ORDERED and ADJUDGED by this Court that the judgment of
the trial court is reversed. Costs are assessed to the appellee and its surety. The
case is remanded to the Circuit Court of Blount County for further proceedings in
accordance with the opinion of this Court and for collection of costs pursuant to
applicable law.
PER CURIAM