Hill Boren, P.C. v. Paty, Rymer and Ulin, P.C. and James Eric Hamm

IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
January 24, 2013 Session
HILL BOREN, P.C. v. PATY, RYMER and ULIN, P.C. and JAMES ERIC
HAMM
Direct Appeal from the Chancery Court for Madison County
No. 67226 Walter C. Kurtz, Sr. Judge, By Designation
No. W2012-00925-COA-R3-CV - Filed March 19, 2013
This appeal involves a dispute over an attorney’s fee involving two law firms and their client.
The parties originally entered into a contract whereby both law firms would jointly represent
the client as a plaintiff in a personal injury suit. Two years later, the client discharged one
of the law firms. The other firm continued to represent the client, and when the case settled
over a year later, the remaining firm retained the entire contingency fee. The discharged firm
sued the client and the other firm, alleging that it was entitled to a share of the contingency
fee and asserting numerous causes of action. The defendants claimed that the discharged
firm was limited to quantum meruit. The trial court granted summary judgment to the
defendants on all claims. The plaintiff law firm appeals. We affirm.
Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Chancery Court Affirmed
A LAN E. H IGHERS, P. J., W.S., delivered the opinion of the Court, in which H OLLY M. K IRBY,
J., and J. S TEVEN S TAFFORD, J., joined.
R. Sadler Bailey, Memphis, Tennessee, for the appellant, Hill Boren, P.C.
Selma Cash Paty, Chattanooga, Tennessee, for the appellee, Paty, Rymer & Ulin, P.C.
John W. Chandler, Jr., Chattanooga, TN, for the appellee, James Eric Hamm
OPINION
I. F ACTS & P ROCEDURAL H ISTORY
James Eric Hamm (“Mr. Hamm”) suffered an injury while working for his employer,
a railroad, on November 8, 2005. Mr. Hamm was twenty-nine years old at the time. As a
result of the accident, Mr. Hamm underwent surgery to have a plate and screws placed in his
neck and a disc replaced with donor material.
Because Mr. Hamm was employed by a railroad, he was required to seek recovery
from his employer pursuant to the Federal Employers’ Liability Act, 45 U.S.C.A. § 51, rather
than Tennessee’s workers’ compensation law. On February 24, 2006, Mr. Hamm contacted
the Hill Boren law firm, in Jackson, Tennessee, about his potential claim because he saw
their advertisement in the telephone book representing that they were experienced in handling
railroad worker accident cases and specialized in “FELA railroad” cases. Hill Boren actually
had very little experience with railroad law and FELA cases. Mr. Hamm’s case was assigned
to Hill Boren attorney James Krenis, who had no experience with FELA law or railroad
accidents. On or about March 8, 2006, Mr. Hamm received a letter from Attorney Krenis
welcoming him as a client of the law firm, advising him that he was being represented by the
Hill Boren firm as a whole, and informing him that they had begun the initial investigation
of his case and would try to keep him up to date on all developments in his case.
In April 2006, Attorney Krenis contacted Attorney Pamela O’Dwyer, of the Paty,
Rymer, & Ulin law firm in Chattanooga, Tennessee because Attorney O’Dwyer had
extensive experience with FELA claims and railroad litigation. Attorney Krenis proposed
that they jointly represent Mr. Hamm for some sort of a “fee split” arrangement. On April
20, 2006, Mr. Hamm, Attorney Krenis, and Attorney O’Dwyer met in person at the Hill
Boren office in Jackson. Before Mr. Hamm was introduced to Attorney O’Dwyer, he was
asked by Attorney Krenis to sign a contract with Hill Boren detailing the terms of its
representation of Mr. Hamm. The contract provided that Hill Boren would receive a
contingency fee of forty percent of any recovery obtained. The contract was signed and
back-dated to February 24, 2006, when Attorney Krenis began working on Mr. Hamm’s case.
After signing the contract, Mr. Hamm was introduced to Attorney O’Dwyer. Attorney Krenis
explained to Mr. Hamm that Attorney O’Dwyer was “one of the best railroad attorneys
around” and that she was being brought “on board” to help with the case. Mr. Hamm then
signed a second contract, with Hill Boren and Paty, Rymer, & Ulin, and all parties
understood that Mr. Hamm would be jointly represented by the two law firms. This second
contract also provided for a forty percent contingency fee to be paid from any recovery, but
it stated that Hill Boren would receive twenty-five percent of the contingency fee and that
Paty, Rymer, & Ulin would receive the remaining seventy-five percent of the fee.
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In the months after the April meeting at Hill Boren, Mr. Hamm called Attorney Krenis
roughly one to two times per month. Sometimes these calls were concerning various
problems that Mr. Hamm encountered with his medical treatment or medical bills, and
sometimes he called simply for an update on the progress of his case. Most of the time, Mr.
Hamm spoke with Attorney Krenis’s assistant. She would update him on any new
information she had or tell him that she would check with Attorney Krenis. Regardless of
what Mr. Hamm was told, at the end of every conversation with the assistant, Mr. Hamm
would say something like, “just have him call me.” According to Mr. Hamm, Attorney
Krenis “sometimes” returned his calls, “but not very often.”
During the latter part of 2006, Mr. Hamm began calling Attorney O’Dwyer in addition
to calling Attorney Krenis. Attorney O’Dwyer routinely spoke with Mr. Hamm and returned
his telephone calls, and she also sent him updates about the case and “copied” him on emails
and various documents. However, Mr. Hamm continued to call Hill Boren approximately
once a month.
Two years into the representation, on July 15, 2008, Mr. Hamm sent the following
letter to Attorney Krenis:
Dear Sir:
I hope this letter finds you doing well. As you are surely aware we have
not communicated in over a year personally. The entirety of my case has been
overseen primarily by Mrs. O'Dwyer. Her efforts to help me in my case have
been exemplary.
Mrs. O'Dwyer has repeatedly tried to discourage me from
communicating to you my disappointment with your lack of interest in my
representation. I do however enjoy the stimulating newsletter that I do receive
from time to time.1 Therefore, since I have seen little to no interest in my case
from anyone at Hill-Boren, I am respectfully asking that you withdraw yourself
from my case. Please respond to me upon receipt of this letter as to w[he]ther
or not there is a problem with my request.
Shortly after receiving the letter, on or about July 18, 2008, Attorney Krenis called Mr.
Hamm and asked him to reconsider his decision. Mr. Hamm expressed his dissatisfaction
with “not knowing what was going on” with the case and complained about the fact that
Attorney Krenis would not return his phone calls. Attorney Krenis assured Mr. Hamm that
the communication problem would be resolved and that he would respond to Mr. Hamm’s
1
At his deposition, Mr. Hamm explained that his comment about the firm newsletter was written
with “a little bit of sarcasm.” He said, “I wanted to speak with Mr. Krenis. I didn't want a newsletter.”
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calls in the future. Mr. Hamm then agreed to allow the representation to continue. During
this same conversation, Mr. Hamm asked Attorney Krenis about his potential disability
claim, and Attorney Krenis told him that there was someone on staff at the Hill Boren firm
who could help him. Attorney Krenis then “put [Mr. Hamm] in touch with” the firm’s
attorney who handled disability claims.
Approximately two months later, on September 10, 2008, Mr. Hamm sent a second
letter to Attorney Krenis, which stated:
Dear Sir:
I hope that you are well. We spoke on the phone on July 18th discussing
my disability case and you recommended a Mr. Mike Hartup who is on staff
at this firm. Upon speaking with Mr. Hartup that same day, he assured me that
he would take the weekend to review my case and he would speak with me on
the 21st. I left several messages that day and never received any response. On
August 2nd, I received a CERTIFIED letter stating he could not help me with
my matters. This is fine but, a simple phone call would have sufficed.
I am very dissatisfied with the lack of attention that I have received and
have come to the decision that I will feel better served if you would honor my
previous request and dismiss yourself from my case.
Within days of receiving this letter, Attorney Krenis responded with the following letter to
Mr. Hamm:
I am in receipt of your letter dated September 10, 2008. Nothing has changed
since we last spoke. At that time, I expressed my apologies for your
experience with Mr. Hartup. You certainly have the right to request that I not
represent you any longer on this case. If you do that, I will place an attorney's
lien for the time and expense that my office has spent representing you. This
will include ordering medical records, maintaining and updating our file,
communicating with co-counsel, communicating with you when necessary,
communicating with the Department of Labor, responding to e-mail, etc. At
that point you will be free to simply remain with Ms. O'Dwyer (who is a
highly accomplished attorney in the field of railroad law), hire additional
counsel, or terminate all counsel. If you terminate my services, I strongly urge
you to establish a separate contract with Ms. O’Dwyer, as I believe her
association with this case currently is only through my contract with you. I am
disappointed in your sudden change of heart for no apparent reason, and
certainly hope you will reconsider again and remain with me and the law firm
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of Hill Boren. I think it is unfair to allow your dissatisfaction with another
attorney in the Social Security Department of this firm to give you reason to
terminate my services. I made it clear when we last spoke that any time you
needed to speak with me, you could call me directly. I don't know what you
feel you are not getting from me or my firm, but I question whether you will
find it any where else. I look forward to hearing from you, whatever you
decide.
Mr. Hamm did not respond to the letter from Attorney Krenis. Nevertheless, it was
understood and agreed by Attorney Krenis, on behalf of Hill Boren, that as of the receipt of
Mr. Hamm’s second letter, Mr. Hamm had terminated Mr. Krenis and the Hill Boren firm
from representing him. An order of withdrawal was never entered in Mr. Hamm’s case.
However, after September 18, 2008, neither Attorney Krenis nor any other lawyer or
employee of Hill Boren did any substantive work on the case, other than receiving copies of
letters or pleadings from Attorney O'Dwyer and other employees of her firm, and providing
limited information and documentation to Attorney O'Dwyer and others at her firm.
Attorney O’Dwyer continued to represent Mr. Hamm after Hill Boren’s termination,
but she and Mr. Hamm did not execute another written contract. On November 27, 2009,
more than one year after Attorney Krenis was terminated by Mr. Hamm, Attorney O’Dwyer
contacted Attorney Krenis via email and advised him that a mediation had been scheduled
in Mr. Hamm’s case and that she needed to reach an agreement with Attorney Krenis and the
Hill Boren law firm as to its fee so that she would know the ramifications of Hill Boren's fee
during the settlement negotiations of Mr. Hamm's case. The first contract that had been
executed, by only Mr. Hamm and Hill Boren, provided, in relevant part:
In the event the services of the Firm are terminated for any reason by Client(s)
prior to settlement or a final adjudication of their claim, the Firm shall be
entitled to a reasonable fee for the services rendered to the Client as well as
expenses paid on the case from any recovery subsequently obtained by the
Client(s).
The second contract, signed by Mr. Hamm, Hill Boren, and Paty, Rymer & Ulin, provided,
in relevant part:
In the event the case is settled without the advice of the ATTORNEYS, should
CLIENTS seek alternative representation, or should the ATTORNEYS’
contingency fee not be paid for any reason, ATTORNEYS shall have a right
to quantum meruit recovery based on ATTORNEYS’ hourly rate applicable
at the time of the settlement or other disposition. This equitable relief is to
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avoid unjust enrichment of the CLIENTS should CLIENTS determine that the
services of the ATTORNEYS are no longer beneficial.2
Attorney Krenis responded to Attorney O’Dwyer’s email inquiry with an email stating that
he and Ricky Boren (a senior partner at the firm) had briefly reviewed Mr. Hamm’s file and
found the following:
There was a 25% referral fee agreed upon, based upon a 40% contingency with
the client. We have over $700 in expenses, and spent at least 20 hours
speaking to him (mostly years ago, despite his contentions), ordering records,
setting up the file, doing legal research early on, and communicating with
you/your office. The expenses and a partial log of time management is being
faxed.
The expense ledger and time records were sent to Attorney O’Dwyer later that day.
The first mediation held in Mr. Hamm’s case was unsuccessful. On June 3, 2010, Mr.
Hamm attended a second mediation with Attorney O'Dwyer. Either prior to or during the
mediation, Attorney O'Dwyer agreed to reduce her contingency fee from forty percent to
thirty-three percent in order to obtain Mr. Hamm’s agreement to settle the case. The case
ultimately settled for seven figures. Attorney O’Dwyer’s contingency fee was calculated at
over $480,000.
Approximately one week after the mediation, on June 11, 2010, Attorney O’Dwyer
sent a letter to Attorney Krenis which stated:
In accordance with our conversation I am confirming the result of the
contract with [Mr. Hamm].
...
I am attaching a copy of your billing statement dated November 30,
2009. Although [Mr. Hamm] states he terminated his services from you on
September 10, 2008, your billing statement may set out twenty hours of work
expended by your firm. Though [Mr. Hamm] disputes the billing, he will
agree to pay you according to the contract. . . .
I have calculated the 20 hours at $250 per hour and added the expenses
2
The contract stated that the term “ATTORNEYS” referred to Paty, Rymer & Ulin and that the term
“CLIENTS” referred to Mr. Hamm and Hill Boren. However, all parties agree that “Hill-Boren was
inadvertently and mistakenly listed as a client of Paty, Rymer & Ulin, P.C. in the PR&U contract” and “both
Hill-Boren and Paty, Rymer & Ulin were Mr. Hamm's attorneys under that contract.”
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$719.10 and will send $5,719.10 to satisfy your fees and expenses as soon as
we are in a position to fulfill his obligation.
Attorney O’Dwyer did not inform Attorney Krenis about the settlement, because, according
to Attorney O’Dwyer, she believed that doing so would violate a confidentiality agreement
signed by her client. Attorney Krenis responded to the aforementioned letter by stating in
an email: “Please send the $5700 or so you referenced in your letter and we will be ‘square.’”
The following month, Attorney O’Dwyer sent Attorney Krenis a letter enclosing a check
made payable to him and Hill Boren in the amount of $5,719.10 “as per our agreement and
with the permission of Eric Hamm.” The check was not returned but it was not negotiated
either. At some point, Attorney Krenis learned from defense counsel in Mr. Hamm’s case
that the case had settled for seven figures, and Hill Boren then refused to accept the sum of
$5,719.10 for its fee in the case.
Hill Boren filed this lawsuit against Paty, Rymer & Ulin on September 3, 2010. The
complaint acknowledged that Hill Boren was discharged by Mr. Hamm in September 2008,
but it alleged that the contractual agreement between the law firms of Hill Boren and Paty,
Rymer & Ulin remained in effect so that Hill Boren was nevertheless entitled to one-fourth
of the contingency fee upon settlement of the case. The complaint also alleged that, on or
about June 28, 2010 (the date when Attorney Krenis said we will be “square”), Attorney
O’Dwyer told Attorney Krenis that Mr. Hamm’s case was “not a big case” and that there was
not a lot of money involved in the settlement negotiations. Hill Boren’s complaint alleged
that “this misrepresentation of the value of the case by co-counsel” had fraudulently induced
Attorney Krenis to agree to accept a compromised sum less than he would have received
under the contract. Hill Boren later amended its complaint to formally allege breach of
contract, fraudulent inducement and/or fraudulent misrepresentation, negligent
misrepresentation, intentional interference with a business relationship, and procurement of
breach of contract, and the amended complaint also added a claim for punitive damages.3
Hill Boren later filed a second amended complaint adding as a defendant the client, Mr.
Hamm, and asserting a cause of action against him for breach of contract. The complaint
alleged that Mr. Hamm’s termination of Hill Boren was without cause. Where the previous
complaint had alleged that the parties’ contract was never terminated, the amended complaint
asserted that “[i]t is unclear whether The Contract between [Hill Boren], Hamm, and PR&U
was ever officially terminated[.]”
3
An additional claim for violation of the Tennessee Consumer Protection Act was asserted in the
complaint, but it was dismissed by the trial court, and that ruling is not challenged on appeal. We also note
that Paty, Rymer, & Ulin filed a countercomplaint against Hill Boren regarding a dispute over a contract with
another client, but that claim was severed from this matter and assigned a separate docket number, and that
ruling is not at issue on appeal either.
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Paty, Rymer & Ulin and Mr. Hamm filed separate motions for summary judgment.
Each motion was supported by statements of undisputed facts and numerous exhibits
including contracts, emails, letters, and testimony from several depositions. Hill Boren filed
separate responses to the motions along with its own statement of undisputed facts and
numerous exhibits. After the motions were argued before the court, the trial court entered
an order granting summary judgment to Paty, Rymer & Ulin and to Mr. Hamm on all issues.
Hill Boren timely filed a notice of appeal.
II. I SSUES P RESENTED
On appeal, Hill Boren frames the issue as: “Whether the trial court erred in granting
summary judgment to the Defendants, thereby denying Plaintiff its contracted upon fee.”
Hill Boren presents numerous arguments in support of its assertion that summary judgment
was improper as to the various claims asserted in its complaint. The defendants, Mr. Hamm
and Paty, Rymer & Ulin, argue, naturally, that summary judgment was properly entered in
their favor. For the following reasons, we affirm the decision of the chancery court.
III. S TANDARD OF R EVIEW
A motion for summary judgment should be granted only “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. “A disputed fact presents a genuine
issue if ‘a reasonable jury could legitimately resolve that fact in favor of one side or the
other.’” Martin v. Norfolk S. Ry., 271 S.W.3d 76, 84 (Tenn. 2008) (quoting Byrd v. Hall,
847 S.W.2d 208, 215 (Tenn. 1993)). In other words, “[i]f reasonable minds could justifiably
reach different conclusions based on the evidence at hand, then a genuine question of fact
exists.” Green v. Green, 293 S.W.3d 493, 514 (Tenn. 2009) (citing Martin, 271 S.W.3d at
84; Louis Dreyfus Corp. v. Austin Co., 868 S.W.2d 649, 656 (Tenn. Ct. App. 1993)). “If, on
the other hand, the evidence and the inferences reasonably drawn from the evidence would
permit a reasonable person to reach only one conclusion, then no material factual dispute
exists, and the question can be disposed of as a matter of law.” Id. (citing Godfrey v. Ruiz,
90 S.W.3d 692, 695 (Tenn. 2002); Seavers v. Methodist Med. Ctr. of Oak Ridge, 9 S.W.3d
86, 91 (Tenn. 1999)).
“The party seeking the summary judgment has the burden of demonstrating that no
genuine disputes of material fact exist and that it is entitled to a judgment as a matter of law.”
Green, 293 S.W.3d at 513 (citing Martin, 271 S.W.3d at 83; Amos v. Metro. Gov't of
Nashville & Davidson County, 259 S.W.3d 705, 710 (Tenn. 2008)). “The moving party may
make the required showing and therefore shift the burden of production to the nonmoving
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party by either: (1) affirmatively negating an essential element of the nonmoving party's
claim; or (2) showing that the nonmoving party cannot prove an essential element of the
claim at trial.” Martin, 271 S.W.3d at 83 (citing Hannan v. Alltel Publ’g Co., 270 S.W.3d
1, 5 (Tenn. 2008)).4 In order to negate an essential element of the claim, “the moving party
must point to evidence that tends to disprove an essential factual claim made by the
nonmoving party.” Id. at 84 (citing Blair v. W. Town Mall, 130 S.W.3d 761, 768 (Tenn.
2004)). “If the moving party is unable to make the required showing, then its motion for
summary judgment will fail.” Id. (citing Byrd, 847 S.W.2d at 215).
If the moving party does make a properly supported motion, the nonmoving party is
required to produce evidence of specific facts establishing that genuine issues of material fact
exist. Martin, 271 S.W.3d at 84 (citing McCarley v. W. Quality Food Serv., 960 S.W.2d 585,
588 (Tenn. 1998); Byrd, 847 S.W.2d at 215). “The nonmoving party may satisfy its burden
of production by: (1) pointing to evidence establishing material factual disputes that were
over-looked or ignored by the moving party; (2) rehabilitating the evidence attacked by the
moving party; (3) producing additional evidence establishing the existence of a genuine issue
for trial; or (4) submitting an affidavit explaining the necessity for further discovery pursuant
to Tenn. R. Civ. P., Rule 56.06.” Id. (citing McCarley, 960 S.W.2d at 588; Byrd, 847 S.W.2d
at 215 n.6). “The nonmoving party's evidence must be accepted as true, and any doubts
concerning the existence of a genuine issue of material fact shall be resolved in favor of the
nonmoving party.” Id. (citing McCarley, 960 S.W.2d at 588).
The resolution of a motion for summary judgment is a matter of law, which we review
de novo with no presumption of correctness. Id. However, “we are required to review the
evidence in the light most favorable to the nonmoving party and to draw all reasonable
inferences favoring the nonmoving party.” Id. (citing Staples v. CBL Assocs., Inc., 15
S.W.3d 83, 89 (Tenn. 2000)).
IV. D ISCUSSION
A. Breach of Contract
We begin by considering the breach of contract claim asserted against both Mr. Hamm
and Paty, Rymer & Ulin. “‘The essential elements of any breach of contract claim include
(1) the existence of an enforceable contract, (2) nonperformance amounting to a breach of
the contract, and (3) damages caused by the breach of the contract.’” ARC LifeMed, Inc. v.
4
As noted by the trial court, the summary judgment standard set forth in Hannan is applicable to
this case because it was filed prior to July 1, 2011. See Tenn. Code Ann. § 20-16-101; Sykes v. Chattanooga
Housing Authority, 343 S.W.3d 18, 25 n.2 (Tenn. 2011).
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AMC-Tennessee, Inc., 183 S.W.3d 1, 26 (Tenn. Ct. App. 2005) (quoting Custom Built
Homes v. G.S. Hinsen Co., Inc., 1998 WL 960287 (Tenn. Ct. App. Feb. 2, 1998)). In its
complaint, Hill Boren alleged that Mr. Hamm terminated Hill Boren without cause and
breached the parties’ contract by failing to pay Hill Boren one-fourth of the contingency fee.
With regard to Paty, Rymer, & Ulin, the complaint alleged a breach of contract based upon
its failure to divide the contingency fee with Hill Boren in accordance with the contract’s
terms. To analyze these issues, we will begin by considering the effect of Mr. Hamm’s
termination of Hill Boren in September 2008.
“Under Tennessee law a client has a right to discharge his attorney with or without
cause.” Crawford v. Logan, 656 S.W.2d 360, 364 (Tenn. 1983) (citing Chambliss, Bahner
& Crawford v. Luther, 531 S.W.2d 108 (Tenn. Ct. App. 1975)). “Clients cannot be forced
to entrust their legal matters to an unwanted lawyer.” Seibers v. Pepsi-Cola Bottling Co.,
No. M1999-02559-COA-R3-CV, 2000 WL 1862833, at *3 (Tenn. Ct. App. Dec. 21, 2000).
Accordingly, clients can “discharge a lawyer at any time regardless of cause and regardless
of any contract between the client and the lawyer.” Id. (citing Yoakley v. Hawley, 73 Tenn.
670, 673 (1880); In re Ellis, 822 S.W.2d 602, 607 (Tenn. Ct. App. 1991); Chambliss, Bahner
& Crawford, 531 S.W.2d at 110). However, upon discharge, “the attorney is entitled to just
and adequate compensation for services rendered.” Adams v. Mellen, 618 S.W.2d 485, 488
(Tenn. Ct. App. 1981) (citing Spofford v. Rose, 145 Tenn. 583, 611, 237 S.W. 68, 76 (1922)).
“Where there is a contract between attorney and client for compensation on either a
contingency or flat-fee basis, and the attorney is discharged prior to the resolution of the case,
the attorney is entitled to sue for either the full amount contemplated by the contract, or
quantum meruit, an amount measured by the value of the work the attorney actually
performed.” Sowell v. Christy, No. M2004-02186-COA-R3-CV, 2006 WL 568238, at *2
(Tenn. Ct. App. Mar. 8, 2006) (citing Brownlow v. Payne, 2 Tenn. App. 154, 162 (1925)).
“Whether or not the client had just cause to discharge his or her attorney directly impacts the
potential compensation the discharged attorney may be entitled to receive for services
performed.” Gupton v. Davis, No. E2011-02215-COA-R3-CV, 2012 WL 4358184, at *8
(Tenn. Ct. App. Sept. 25, 2012). If the attorney was discharged for cause, “the attorney is
entitled to recover on the basis of quantum meruit or breach of contract, whichever is less.”
Crawford, 656 S.W.2d at 364 (emphasis added). On the other hand, if the attorney was
discharged without cause, “the attorney can recover on the same basis, but is entitled to the
greater of the two possible awards.” Id. (citing Adams, 618 S.W.2d at 485) (emphasis
added). “‘Where an attorney has been discharged by his client without cause, the attorney
may rescind the contract of employment and may recover on a quantum meruit for services
rendered up to the date of his discharge; or he may treat the contract as continuing, although
broken by the client, and may recover for the breach.’” Rose v. Welch, 115 S.W.3d 478, 486
(Tenn. Ct. App. 2003) (quoting Adams, 618 S.W.2d at 485). “An attorney discharged
without cause can thus elect to recover based on the full contract price or on quantum meruit,
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whichever is greater.” Id. If Hill Boren was discharged without cause, then, it can recover
on the basis of breach of contract and it will be entitled to the full contract price, i.e., one-
fourth of the contingency fee. If, however, Hill Boren was terminated for cause, it will be
limited in this case to quantum meruit.
“A ‘for cause’ firing ‘includes the client's right to discharge the attorney whenever the
client ceases to have absolute confidence in the relationship.’” Gupton, 2012 WL 4358184,
at *8 (citing Chambliss, Bahner, & Crawford, 531 S.W.2d at 108; McGee v. Maynard, No.
01A01-9810-CV-00539, 1999 WL 824298 at *2 (Tenn. Ct. App. Aug. 12, 1999)). “The
relation between attorney and client is such that the client is justified in seeking to dissolve
that relation whenever he ceases to have absolute confidence in either the integrity, the
judgment, or the capacity of the attorney.” Sowell, 2006 WL 568238, at *2 (citing Chambliss,
Bahner & Crawford, 531 S.W.2d at 110). In order to prove that a discharge was for cause
on this basis, “a client must first establish that the discharge was the result of his actual loss
of confidence in his attorney.” Rose, 115 S.W.3d at 486. In addition to proving this
subjective prong – that the client actually did lose confidence in his attorney – the client must
also prove “that his reasons for the loss of confidence leading to the attorney's discharge were
objectively reasonable.”5 Id. at 487. Still, a client is not required to utilize expert proof in
order to establish that he lost confidence in his or her attorney and discharged him for that
reason. Id.
In support of their motions for summary judgment, the defendants submitted
statements of undisputed facts, lengthy testimony from several depositions, and numerous
exhibits including letters, emails, and the parties’ contracts.6 Among other things, the
defendants relied upon the following admission by Hill Boren:
It was understood and agreed by James Krenis on behalf of Hill-Boren that, as
of Mr. Krenis’ receipt of Mr. Hamm’s September 10, 2008, letter, Eric Hamm
had terminated Mr. Krenis and the Hill-Boren firm from representing him.
5
The Rose Court explained that, were it not for the additional objective prong, “any client would
be able to defeat a contractually agreed fee arrangement so long as the attorney is discharged for a client's
loss of confidence for any reason, no matter how objectively irrational or unreasonable the stated reason for
the loss of confidence may be. Such a result would, for all practical purposes, make every discharge of an
attorney ‘for cause.’” 115 S.W.3d at 486.
6
The record before us does not contain the memorandum of law submitted by each party in support
of its respective motion for summary judgment, and we do not have a transcript of the summary judgment
hearing. However, we can surmise the defendants’ basic positions from the material submitted in support
of the motions for summary judgment, Hill Boren’s responses to the motions, other pleadings filed during
that timeframe, the trial court’s order on the motion for summary judgment, and the parties’ briefs on appeal.
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Hill Boren also admitted that, after September 18, 2008, “neither James Krenis nor any other
lawyer or employee of Hill-Boren did any substantive work on Mr. Hamm's case, other than
receive copies of letters or pleadings from Ms. O'Dwyer and other employees of P.R.&U and
provided limited information and documentation to Ms. O'Dwyer and others at the P.R.&U.
firm.” The case settled during mediation in June 2010.
Relevant to the allegation that Mr. Hamm terminated Hill Boren without cause, the
defendants cited, among other things, the deposition testimony of Mr. Hamm. It was not
disputed that, in the months following the parties’ initial meeting, Mr. Hamm called Attorney
Krenis roughly one to two times per month, sometimes three times.7 These calls were
sometimes due to various problems that Mr. Hamm encountered with his medical treatment
or medical bills, but other times he called simply for an update on the progress of his case.
Mr. Hamm said that “ninety-nine percent of the time” he spoke with Attorney Krenis’s
assistant. She would either update him on any new information she had or tell him that she
would check with Attorney Krenis. Mr. Hamm would always ask that Attorney Krenis return
his call. Mr. Hamm explained that he expected Attorney Krenis to return his calls because
“he was my attorney.” According to Mr. Hamm, Attorney Krenis “sometimes” returned his
calls, “but not very often.” He estimated that Attorney Krenis returned only one out of every
ten telephone calls he made. Mr. Hamm said, “That's why I would call back and speak with
[the assistant] again.”
Mr. Hamm described some specific examples of his unsuccessful attempts to contact
Attorney Krenis with regard to problems he encountered. Mr. Hamm said that in 2006, he
was forced to stop seeing his neurologist because his employer stopped paying his medical
bills. In addition, he could no longer get his prescription medications filled because his
employer ceased paying his pharmacy bills. Mr. Hamm, being unemployed at the time, could
not afford to pay the bills himself. Mr. Hamm testified that he contacted Hill Boren about
this issue, and he was told that they would make an effort to get the matter resolved.
However, Mr. Hamm said, Hill Boren “never sent me anything saying, we're doing this, we're
trying to talk to this person, we're seeing what we can do with this. I was never told
7
The trial court noted in its order:
[I]n considering a summary judgment, the trial judge places great reliance on the statement
of facts. Tenn. R. Civ. Pro. 56.03. The Court need not search the record but may rely
exclusively on the statement of facts. Holland v. City of Memphis, 125 S.W.3d 425, 428-29
(Tenn. Ct. App. 2003) and Owens v. Bristol Motor Speedway, 11 S.W.3d 771, 774-775
(Tenn. Ct. App. 2001).
On appeal, we have likewise relied on the numerous statements of facts and the lengthy exhibits submitted
by the parties, both in support of the motions for summary judgment and in response thereto.
-12-
anything.” Mr. Hamm stated, “To my knowledge, they didn’t do anything.” The matter was
never resolved and the bills were not paid. Mr. Hamm said he knew there was no guarantee
that Hill Boren would be able to get his employer to pay the bills, “but,” he said, “I didn't
know if anything was being done or not. I was never given an answer as far as what they
were doing.” Mr. Hamm stated that he called Hill Boren for advice on one particular
occasion when he received a $4300 pharmacy bill, and although he spoke with the assistant
and she told him she would contact Attorney Krenis, he never heard back from anyone.
Mr. Hamm described another occasion when he called Hill Boren from a physician’s
office because he could not be seen for his appointment unless he first signed a document
agreeing to be financially responsible for the services. When Mr. Hamm attempted to reach
Attorney Krenis for advice on the matter, his assistant told Mr. Hamm that she would try to
contact Attorney Krenis in order to find out what to do. After waiting for some time with no
response from Hill Boren, Mr. Hamm called Attorney O’Dwyer and received an immediate
answer from her.
Mr. Hamm testified that this type of situation “happened on a regular basis,” meaning,
he would regularly need advice regarding various issues that arose with his treatment or
medications, and whenever he attempted to contact Attorney Krenis, his assistant would say
that she would give him a message, but Mr. Hamm’s calls were never returned.
The defendants submitted this and other evidence in support of their motions for
summary judgment as to Hill Boren’s claims for breach of contract based on nonpayment of
the contingency fee. In doing so, we find that the defendants affirmatively negated an
essential element of Hill Boren’s breach of contract claims. The defendants clearly
established that Hill Boren was terminated by Mr. Hamm in September 2008, and therefore,
Hill Boren was no longer entitled to enforce the contract to receive one-fourth of the
contingency fee, unless it was terminated without cause.8 With regard to that allegation, we
likewise find that the defendants negated an essential element of Hill Boren’s claim that it
was terminated without cause by pointing to evidence that “tend[ed] to disprove an essential
factual claim made by the nonmoving party.” Martin, 271 S.W.3d at 84. The defendants
submitted evidence that Mr. Hamm lost confidence in Hill Boren, for reasons that were
objectively reasonable, and that he discharged Hill Boren on that basis. The burden then
8
We note that during the trial court proceedings, Hill Boren argued that the contract continued after
Hill Boren’s termination in September 2008 to the extent that the contract was between the two law firms.
At numerous points during the proceedings, Hill Boren claimed that it was entitled to a 25% “referral fee”
because the case originated with Hill Boren. On appeal, Paty, Rymer, & Ulin argued that a referral fee was
never agreed upon, and that in any event, a referral fee would be contrary to Tennessee Supreme Court Rule
8 and Rule of Professional Conduct 1.5(e). In its reply brief, Hill Boren stated that it is not seeking a referral
fee. Therefore, we will not address the matter further in this opinion.
-13-
shifted to Hill Boren to establish that a genuine issue of material fact existed.
Hill Boren argued in response to the defendants’ motion for summary judgment that
“[t]he fact that Krenis was terminated . . . does nothing to modify or effect Hill Boren's
ability to enforce the Contract, because Hill Boren was fired without cause.” In an attempt
to demonstrate its point, Hill Boren cited numerous portions of depositions as well as
exhibits.9 On appeal, Hill Boren continues to argue that Mr. Hamm terminated its services
without cause, or at the very least, there are genuine issues of material fact regarding the
“true reason” for Mr. Hamm’s decision, and whether his actions were objectively reasonable.
Hill Boren first argues that there is a genuine issue of material fact regarding whether
Mr. Hamm actually did lose confidence in Attorney Krenis. Hill Boren points out that after
Mr. Hamm’s first “termination” letter in July 2008, the parties spoke by telephone, and Mr.
Hamm agreed to allow Hill Boren to continue representing him. Hill Boren correctly notes
that it was after Mr. Hamm’s bad experience with Hill Boren’s disability attorney that Mr.
Hamm wrote the second termination letter in September 2008. Thus, Hill Boren argues that
there is a genuine issue of material fact as to whether Mr. Hamm was actually dissatisfied
with Mr. Krenis, or whether he was simply dissatisfied with the disability attorney. Hill
Boren argues that it was “unfair” for Mr. Hamm to terminate Attorney Krenis based on his
perceived mistreatment by a separate attorney involved with a separate matter (i.e., the
disability claim). Thus, according to Hill Boren, there is a genuine issue of material fact
regarding the “true reason” for Mr. Hamm’s decision and whether he actually lost confidence
in Attorney Krenis.
We fail to see the significance of the point argued by Hill Boren. Mr. Hamm signed
a contract agreeing to be represented by Hill Boren, not just Attorney Krenis. Shortly after
the contract was signed, Hill Boren sent a letter to Mr. Hamm stating, “You are being
represented by our law firm as a whole.” When Mr. Hamm sought assistance from the
attorney at Hill Boren who handled disability claims, the attorney assured him that he would
9
The trial court resolved the motion for summary judgment on a different ground. Its order states:
The parties spend much time arguing about whether Mr. Hamm had cause to terminate Hill
Boren; or if he really did terminate Hill Boren; and, if Hill Boren was terminated with or
without cause, to what fee are they entitled. The Court finds it unnecessary to resolve these
issues, because the Court is of the opinion that Mr. Krenis, on behalf of Hill Boren, settled
the outstanding fee issue.
On appeal, the parties have continued to dispute whether Hill Boren was terminated with or without cause
as it impacts the fee to which it was entitled. Therefore, we have analyzed the case on these grounds
although they differ from the one relied upon by the trial court.
-14-
review his case over the weekend and speak with him on the following Monday, July 21. Mr.
Hamm left several messages for the attorney that day and never received any response.
Nearly two weeks later, on August 2, he received a certified letter stating that the attorney
could not help him with his claim. The firm’s disability attorney did not assist Mr. Hamm
in submitting a disability claim or refer him to another attorney who could help him do so.
This occurred despite the fact that the Hill Boren firm advertised that it was knowledgeable
and experienced with regard to railroad worker injury claims.10 Hill Boren admits in its brief
on appeal that “Hamm felt that he was mistreated” by the firm’s disability lawyer. It is our
opinion that Mr. Hamm’s dissatisfaction with his treatment during this experience clearly
establishes that he actually lost confidence in the Hill Boren law firm. We are not aware of
any reason why Mr. Hamm would be limited to terminating Hill Boren based only upon the
actions of Attorney Krenis.
We also note that Mr. Hamm testified that he wrote the second letter, terminating Hill
Boren in September 2008, solely due to his dissatisfaction with Attorney Krenis’s handling
of his FELA matter, not because of the matter involving the disability claim. During his
deposition, Mr. Hamm acknowledged his frustration with the handling of his disability matter
but testified that he did not blame Attorney Krenis for the other attorney’s actions. In Mr.
Hamm’s second termination letter, he discussed his experience with the firm’s disability
attorney but stated in a separate paragraph: “I am very dissatisfied with the lack of attention
that I have received and have come to the decision that I will feel better served if you would
honor my previous request and dismiss yourself from my case.” Mr. Hamm testified that the
reference in his letter to being “dissatisfied with the lack of attention that I have received”
was attributable to his dissatisfaction with Attorney Krenis, not the other attorney. He
explained that after he spoke with Attorney Krenis in July 2008, in response to the first
termination letter, he was assured that Attorney Krenis would return his calls in the future,
but nothing changed. Mr. Hamm testified that he called Attorney Krenis six to seven times
between mid-July and mid-September, and Attorney Krenis never once returned his call.
In sum, we reject Hill Boren’s assertion that a genuine issue of material fact exists
regarding whether Mr. Hamm actually lost confidence in its relationship with Hill Boren.
Even assuming arguendo that there is a dispute as to whether the “true reason” for Mr.
Hamm’s decision was his dissatisfaction with Attorney Krenis or his dissatisfaction with the
firm’s disability attorney, we conclude that this allegedly disputed fact is not material. As
explained in Byrd, 847 S.W.2d at 215, “to preclude summary judgment, a disputed fact must
10
Due to the fact that Mr. Hamm had been employed as a railroad worker, any disability claim that
he had needed to be submitted to the Railroad Retirement Board (RRB), rather than the Social Security
Administration. Attorney O’Dwyer later referred Mr. Hamm to an attorney in Nashville, Tennessee who
specialized in RRB disability claims and was able to procure RRB disability benefits for Mr. Hamm.
-15-
be ‘material’. A disputed fact is material if it must be decided in order to resolve the
substantive claim or defense at which the motion is directed.” It is undisputed that Mr.
Hamm felt mistreated by at least one attorney at Hill Boren, and we find this fact sufficient
to demonstrate that Mr. Hamm actually, subjectively, lost confidence in its relationship with
Hill Boren. See Rose, 115 S.W.3d at 486 (recognizing “the client's right to discharge the
attorney whenever the client ceases to have absolute confidence in the relationship”).
Next, we must address Hill Boren’s assertion that a genuine issue of material fact
exists regarding whether Mr. Hamm’s decision to terminate Hill Boren was objectively
reasonable. Again, the client is required to prove “that his reasons for the loss of confidence
leading to the attorney's discharge were objectively reasonable.” Rose, 115 S.W.3d at 487.
We are mindful that termination for cause “does not necessarily suggest bad faith,
incompetence, or neglect.”11 McGee, 1999 WL 824298, at *2. For example, in McGee, it
was held that clients had cause to terminate their attorney when, following discovery, they
had a disagreement over the value of the clients’ claim. Id. at *1. “The right of a client to
change his attorney at will is based on necessity in view of both the delicate and conditional
nature of the relation between them and of the evil engendered by friction or of distrust.”
Chambliss, Bahner & Crawford, 531 S.W.2d at 109. As noted above, “The relation between
attorney and client is such that the client is justified in seeking to dissolve that relation
whenever he ceases to have absolute confidence in either the integrity, the judgment, or the
capacity of the attorney.” Sowell, 2006 WL 568238, at *2.
On appeal, Hill Boren points to various documents in the record, such as letters from
Attorney Krenis to defense counsel and discovery responses, which demonstrate that Hill
Boren was in fact doing some work on Mr. Hamm’s case during the relevant timeframe. But,
as Mr. Hamm explained during his deposition when he was shown these same documents,
Mr. Hamm was not dissatisfied with Hill Boren’s legal services, he was dissatisfied with
their lack of communication about their services. Mr. Hamm said he never knew that Hill
Boren had taken these actions because he was not made aware of any efforts they made on
his behalf or anything else that was happening in the case. When Mr. Hamm was asked if
there was a “tipping point” that led him to discharge Hill Boren, he could not point to any
one specific event but said his dissatisfaction simply built up over time. He explained, “I can
only call so much and ask for someone – I hired Mr. Krenis. I asked for Mr. Krenis to return
my phone calls, and that's all I wanted. I could not communicate with him. I could
communicate with [his assistant]. [She] could tell me this or she could tell me that, but I
11
We note, however, that “misconduct of an attorney in violation of a statute or acts against public
policy, or in breach of the attorney's fiduciary duty to the client may support a complete forfeiture of fees,
depending on the particular facts and circumstances of the case.” Rose, 115 S.W.3d at 486 (citing Crawford,
656 S.W.2d at 364-65).
-16-
needed to speak to Mr. Krenis.” Mr. Hamm testified that he terminated Attorney Krenis
because of his prolonged dissatisfaction with the lack of communication between himself and
Attorney Krenis. We find that lack of communication provides an objectively reasonable
basis for terminating an attorney even if the attorney was otherwise competently performing
his legal duties. See Gupton, 2012 WL 4358184 (finding that clients articulated objectively
reasonable reasons for their loss of confidence in their attorney when they testified that,
among other things, they believed their attorney “was not attentive to them in terms of
adequate communication”).
Hill Boren next argues that there is a genuine issue of material fact as to whether the
reasons for Mr. Hamm’s loss of confidence were objectively reasonable because Attorney
Krenis, during his deposition, characterized Mr. Hamm as a “needy” client who asked the
same questions every time he called. Hill Boren points out that Mr. Hamm called Attorney
Krenis one to three times per month, always asking to speak with him rather than his
assistant. Attorney Krenis testified that “we,” presumably, Attorney Krenis and his assistant,
were answering Mr. Hamm’s questions “time and time again,” and “at some point, it became
pointless to give him the same answers over and over again, which he wasn't hearing.”
Significantly, however, Hill Boren does not point to any evidence to rebut Mr. Hamm’s
testimony that Attorney Krenis only returned approximately ten percent of Mr. Hamm’s
telephone calls. When Attorney Krenis was asked how many times he, personally, spoke
with Mr. Hamm, as opposed to his assistant, he replied, “I couldn't give you a number. I don't
know.” Attorney Krenis also testified that, although Mr. Hamm was “needy” and “somewhat
irritating” in the frequency of his calls, “it was nothing, quite frankly, originally that was out
of the ordinary for what I consider a, you know, a needy client.” Attorney Krenis explained
that some clients call, “virtually, never,” and“[w]e have some that call more and so forth. He
would fall into that percentage that was what I just term needy.” He explained that Mr.
Hamm was “upset, frustrated with the law, with the system,” but, he added, “It was nothing
uncommon. I would say about 30 to 40 percent of our clients either don't understand the law
or are just frustrated with their life situation, which is understandable.” We find that this
evidence regarding Mr. Hamm being a “needy” client did not establish that the reason for Mr.
Hamm’s loss of confidence in Hill Boren – Attorney Krenis’s failure to return his calls – was
objectively unreasonable.
Although Hill Boren did not present affirmative evidence to contradict Mr. Hamm’s
testimony with regard to the frequency of the communication between Mr. Hamm and
Attorney Krenis, Hill Boren argues that Mr. Hamm’s entire testimony is “suspect” because
of his testimony about three particular instances. In Mr. Hamm’s “first termination letter”
to Attorney Krenis in July 2008, he stated, “As you are surely aware we have not
communicated in over a year personally.” Mr. Hamm testified during his deposition that he
had spoken with Attorney Krenis on one occasion about six months prior to this letter, and
-17-
Mr. Hamm explained to Attorney Krenis at that time that he was “extremely unhappy” about
not being able to speak with Attorney Krenis when he called. So, Mr. Hamm admitted that
there was a misstatement in his July 2008 letter, and that he did have one conversation with
Attorney Krenis during the preceding year. Mr. Hamm testified that he called Hill Boren
approximately once a month during that time.
The second occasion cited by Hill Boren involved an email sent by Mr. Hamm to
Attorney Krenis in July 2007 with the subject line, “long time no hear,” and the following
message: “just wanted to check in and see if there was anything new. call me.” Attorney
Krenis testified that when this email was sent, he had actually spoken with Mr. Hamm during
the preceding week. Mr. Hamm was asked about the email during his deposition, and he
testified that he did not recall speaking with Attorney Krenis around July of 2007.
We conclude that these two instances do not establish that the reason for Mr. Hamm’s
loss of confidence in Attorney Krenis were objectively unreasonable. To the contrary, they
evidence Mr. Hamm’s dissatisfaction with the parties’ communication and demonstrate his
continued attempts to communicate with Attorney Krenis. Mr. Hamm did not testify that he
never spoke to Attorney Krenis during the two-and-a-half-year attorney-client relationship.
He testified that Attorney Krenis “sometimes” returned his calls but “not very often,” maybe
one out of every ten times. Notably, Hill Boren does not challenge Mr. Hamm’s testimony
that he and Attorney Krenis had only one conversation in the year prior to the first
termination letter, and during that conversation, Mr. Hamm expressed his displeasure with
the parties’ lack of communication.
Hill Boren points to one other “dispute” regarding a communication between the
parties. In the September 2008 letter Attorney Krenis wrote in response to Mr. Hamm’s
second termination letter, Attorney Krenis wrote, “Nothing has changed since we last spoke.
At that time, I expressed my apologies for your experience with Mr. Hartup.” Thus, Hill
Boren claims that this letter proves that Attorney Krenis and Mr. Hamm did speak during the
timeframe between the two termination letters written by Mr. Hamm. When asked about this
discrepancy, Mr. Hamm testified that he never spoke directly with Attorney Krenis about his
experience with Mr. Hartup, the disability attorney, because when he called to express his
disappointment about the matter, he only spoke with the assistant. Nevertheless, even
assuming that Attorney Krenis did have one direct conversation with Mr. Hamm about his
perceived mistreatment by Mr. Hartup, this would not establish a genuine issue of material
fact regarding whether the reasons for Mr. Hamm’s loss of confidence in Hill Boren were
objectively reasonable.
“A disputed fact presents a genuine issue if ‘a reasonable jury could legitimately
resolve that fact in favor of one side or the other.’” Martin, 271 S.W.3d at 84. In other
-18-
words, “[i]f reasonable minds could justifiably reach different conclusions based on the
evidence at hand, then a genuine question of fact exists.” Green, 293 S.W.3d at 514. “If,
on the other hand, the evidence and the inferences reasonably drawn from the evidence
would permit a reasonable person to reach only one conclusion, then no material factual
dispute exists, and the question can be disposed of as a matter of law.” Id. Even viewing
the evidence in the light most favorable to Hill Boren, we conclude that a reasonable person
could reach but one conclusion – that the reasons for Mr. Hamm’s loss of confidence in Hill
Boren were objectively reasonable. In response to the defendants’ motion for summary
judgment, Hill Boren, as the nonmoving party, was required to produce evidence of specific
facts establishing that genuine issues of material fact existed. Martin, 271 S.W.3d at 84.
Hill Boren did not point to evidence creating a genuine issue of material fact. The
undisputed evidence establishes that there was a communication problem between Mr.
Hamm and Attorney Krenis, and that the reasons for Mr. Hamm’s loss of confidence in Hill
Boren were objectively reasonable. For example, Hill Boren fails to dispute Mr. Hamm’s
claim that Attorney Krenis never informed him of any efforts that were made to resolve the
problem Mr. Hamm encountered with his medical bills. Hill Boren simply argues that it was
“impossible” for Attorney Krenis to fulfill such a request because the employer was not
legally required to pay the bills. That is not the point, however. Mr. Hamm acknowledged
his awareness that Hill Boren might not be successful in its attempt to resolve the matter.
Mr. Hamm’s complaint was that Attorney Krenis never told him about any efforts made on
his behalf, so Mr. Hamm “didn't know if anything was being done or not.”
Because Mr. Hamm’s loss of confidence was rooted in an objectively reasonable
basis, his termination of the Hill Boren law firm was for cause. Consequently, Hill Boren
was limited to recovering quantum meruit in this case. It was not entitled to recover the full
contract amount of one-fourth of the contingency fee.12
12
This result is also consistent with the terms of the parties’ contract, which provided:
In the event the case is settled without the advice of the ATTORNEYS, should CLIENTS
seek alternative representation, or should the ATTORNEYS’ contingency fee not be paid
for any reason, ATTORNEYS shall have a right to quantum meruit recovery based on
ATTORNEYS’ hourly rate applicable at the time of the settlement or other disposition.
This equitable relief is to avoid unjust enrichment of the CLIENTS should CLIENTS
determine that the services of the ATTORNEYS are no longer beneficial.
Clearly, Mr. Hamm determined that the services of Hill Boren were no longer beneficial, and he accordingly
sought to be represented in an alternative manner that was not contemplated by the parties’ original contract.
He ended the joint representation and was represented solely by Paty, Rymer, & Ulin thereafter. We reject
Hill Boren’s argument that Mr. Hamm could only seek “alternative representation” by discharging both Hill
Boren and Paty, Rymer, & Ulin and hiring someone entirely new to the case, as we find this to be a strained
(continued...)
-19-
We note that Hill Boren argues on appeal that “a motion for summary judgment that
is only supported by an interested party’s own self-serving statements cannot succeed,
because the defendant’s ‘interest in the outcome of the case alone is sufficient to create an
issue of fact for the jury.’” See Anderson v. Mason, 141 S.W.3d 634, 637 (Tenn. Ct. App.
2003)). It also cites caselaw to the effect that “‘uncontradicted evidence will not entitle a
party . . . to a summary judgment, when the credibility of the evidence has been called into
question using one of the legal modes available to test the credibility of witnesses.’” See
Knapp v. Holiday Inns, Inc., 682 S.W.2d 936, 942-43 (Tenn. Ct. App. 1984). Hill Boren
claims that because it raised a question as to Mr. Hamm’s credibility, with regard to the three
instances mentioned above, none of Mr. Hamm’s testimony can provide the basis for
granting summary judgment in favor of the defendants. In other words, Hill Boren argues
that we cannot accept Mr. Hamm’s testimony about his reasons for terminating Hill Boren.
At first blush, the quotations cited above would appear to preclude summary judgment
based on Mr. Hamm’s testimony. However, the cited principle is not applied as broadly as
Hill Boren suggests. “Doubt as to credibility of a witness for this purpose does not arise
from the mere fact that the witness is a party or otherwise interested in the result.” Lewis v.
Hill, 770 S.W.2d 751, 754 (Tenn. Ct. App. 1988).13 “The opponent to the motion for
summary judgment must raise a genuine doubt as to witness credibility.” Bailey Tool &
Mfg. Co. v. Butler, No. M2009-00685-COA-R3-CV, 2010 WL 2073854, at *7 (Tenn. Ct.
App. May 21, 2010) (citing Knapp, 682 S.W.2d at 942) (emphasis added). “‘The credibility
concerns that warrant denying a summary judgment must raise to a level higher than normal
credibility questions that arise whenever a witness testifies. Any other rule would essentially
prevent the courts from granting a summary judgment in any case.’” Id. (quoting Hepp v. Joe
B's, Inc., No. 01A01-9604-CV-00183, 1997 WL 266839, at *3 (Tenn. Ct. App. May 21,
1997)).
Furthermore, the opponent to the motion for summary judgment cannot merely point
out any inconsistency in testimony or concern regarding a witness’s credibility in order to
avoid the grant of summary judgment. For instance, in Bailey v. Tasker, 146 S.W.3d 580,
588-89 (Tenn. Ct. App. 2004), the Court of Appeals affirmed summary judgment in favor
of a defendant doctor despite the plaintiff’s challenge to his credibility. The plaintiff argued
that the defendant doctor’s testimony regarding the standard of care could not be the basis
12
(...continued)
interpretation of the contract.
13
The Lewis Court explained that, “The [Knapp] opinion,” cited by Hill Boren, “is not authority
for disregarding an uncontradicted affidavit because it is the affidavit of a party.” 770 S.W.2d at 754.
-20-
for granting summary judgment because, in response to the doctor’s motion for summary
judgment, the plaintiff demonstrated that the doctor falsely testified in his deposition about
the number of lawsuits with which he had been involved and the existence of past criminal
charges against him. Thus, the plaintiff cited Knapp for the notion that “doubt as to the
credibility of material witnesses will create a genuine issue of material fact sufficient to
render granting a summary judgment improper.” Nevertheless, the Court distinguished
Knapp because, among other things, the challenged credibility of the witnesses in Knapp
“related directly to their versions of the events of the evening in question.”14 Id. at 589. In
contrast, the challenge to the doctor’s credibility did “not go directly to the defendant's expert
testimony regarding whether he violated the standard of care in his treatment of the plaintiff.”
Id. The credibility issue involving the doctor was “peripheral to the substance of the
defendant's testimony.” Id. Therefore, his own testimony could provide the basis for
granting summary judgment in his favor. See also Stewart v. Bennett, C.A. No. 169, 1987
WL 17030, at *3 (Tenn. Ct. App. E.S. Sept. 17, 1987) (affirming summary judgment where
the facts were undisputed regarding the dispositive issue on appeal, and the cited differences
in testimony between affidavits and depositions related to a separate issue, as this created no
“genuine doubt” concerning the witnesses’ credibility).
Our Supreme Court was faced with a similar issue in Lindsey v. Miami Development
Corp., 689 S.W.2d 856, 862-63 (Tenn. 1985). There, the plaintiff’s daughter, the decedent,
either jumped or fell from a balcony during a party hosted by the defendant. The plaintiff
asserted a premises liability claim against the defendant, and summary judgment was entered
in favor of the defendant based on his testimony that the decedent jumped and did not fall
from the balcony. Other witnesses had contradicted parts of the defendant’s testimony, such
as his version of what happened after the fall, but none of them actually saw the decedent
fall, so they could not contradict the defendant’s testimony in that regard. Accordingly, the
only testimony describing how the decedent descended from the balcony was from the
defendant himself. The plaintiff argued that it was inappropriate to grant summary judgment
14
In Knapp, 682 S.W.2d at 939-43, the dispositive issue was whether there was a genuine factual
dispute concerning whether the employees of a cocktail lounge served alcoholic beverages to a man when
he was visibly intoxicated. The owner of the lounge moved for summary judgment and sought to show
definitively that the man was not visibly intoxicated by relying on the testimony of the allegedly intoxicated
man himself and one of the cocktail waitresses who served him, who happened to be the man’s personal
friend and former client. Despite their testimony, a blood sample taken from the man after he was involved
in an accident revealed a blood alcohol concentration of 0.23%. The Court found that it was inappropriate
to grant summary judgment based on the testimony of the allegedly intoxicated man and the waitress because
the question of their credibility needed to be resolved at a full hearing on the merits. The Court explained
that summary judgment should be denied, and the case should be decided by the trier of fact, “if the opponent
to a motion for summary judgment succeeds in raising a genuine doubt concerning a witness’ credibility by
a sufficient showing of the witness’ bias, prejudice, or interest[.]” Id. at 942.
-21-
based solely on the testimony of the defendant because he could be impeached by showing
other inconsistencies in his testimony. The Supreme Court disagreed. The Court recognized
that the defendant’s testimony was “not entirely consistent with that of [other witnesses] in
collateral matters.” Id. at 862. However, the Court concluded that no issue had been
“seriously raised as to [the defendant’s] credibility on the factual issue” of how the decedent
descended from the balcony. Id. at 863. The Court explained:
[T]he party opposing summary judgment must be able to point to some facts
which may or will entitle him to judgment, or refute the proof of the moving
party in some material portion, and . . . the opposing party may not merely
recite the incantation, “Credibility,” and have a trial on the hope that a jury
may disbelieve factually uncontested proof. Curi v. International Business
Machines Corporation, 517 F.2d 212, 214 (5th Cir.1975) quoting with
approval Rinieri v. Scanlon, 254 F. Supp. 469, 474 (S.D.N.Y.1966).
Id. The Court found that reasonable minds could draw only one conclusion from the
evidence in the record – that the decedent jumped from the balcony. The Court made this
conclusion even though the evidence came from the defendant himself, and it affirmed the
grant of summary judgment to the defendant on the premises liability claim.
Applying these principles to the case before us, we readily conclude that the cases
cited by Hill Boren do not preclude a grant of summary judgment to the defendants simply
because the motion for summary judgment was based in part upon the testimony of Mr.
Hamm himself. We recognize that Hill Boren did challenge Mr. Hamm’s testimony with
regard to three specific instances that do relate to the factual issue of the communication that
took place, or failed to take place, between Attorney Krenis and Mr. Hamm. However, we
find that Hill Boren did not “refute the proof of the moving party in some material portion”
that would justify disregarding Mr. Hamm’s entire testimony about the relationship. See
Lindsey, 689 S.W.2d at 863. The evidence submitted by Hill Boren did not raise a genuine
doubt regarding Mr. Hamm’s credibility. The factual disputes raised by Hill Boren are
limited to: whether the parties spoke in July 2007 around the time of the “long time no hear”
email, and whether they personally spoke around September of 2008 regarding the bad
experience with Mr. Hartup.15 Assuming that the parties’ did speak on these two occasions,
during a two-and-a-half year attorney-client relationship, these facts would not establish that
it was objectively unreasonable for Mr. Hamm to terminate Hill Boren’s services for failing
15
The third alleged “dispute” was not actually disputed. Mr. Hamm testified that he misspoke in
his July 2008 termination letter when he said the parties had not spoken in over a year, because they had
spoken on one occasion in the previous six months about his displeasure with the parties’ lack of
communication.
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to return his calls. Again, “[n]ot all factual disputes require the denial of a motion for
summary judgment. Many factual disputes are minor or are not germane to the grounds of
the motion.” Green, 293 S.W.3d at 514. The factual disputes asserted by Hill Boren were
minor, and the vast majority of Mr. Hamm’s testimony was undisputed. Accordingly, we
conclude that Hill Boren failed to raise a genuine doubt regarding Mr. Hamm’s credibility
and failed to demonstrate a genuine issue of material fact in response to the defendants’
properly supported motion for summary judgment.
Finally, we note Hill Boren’s brief argument that the contract between Hill Boren,
Paty, Rymer & Ulin, and Mr. Hamm “could not have been modified or rescinded by the
September 18, 200[8] Krenis letter because there was no consideration for such a
modification.” Hill Boren cites general caselaw to the effect that an alteration or amendment
to an existing contract must be supported by consideration. As explained above, however,
Hill Boren admits that Mr. Hamm terminated its representation by his letter of September 10,
2008. Therefore, its “lack of consideration” argument is apparently premised on the
assumption that the parties’ contract remained enforceable even after the termination because
the termination was allegedly without cause. See Rose, 115 S.W.3d at 485 (“Where an
attorney has been discharged by his client without cause, the attorney may rescind the
contract of employment and may recover on a quantum meruit for services rendered up to the
date of his discharge; or he may treat the contract as continuing, although broken by the
client, and may recover for the breach.) Because we have concluded that Hill Boren was
terminated for cause, there was no “alteration or amendment” to an “existing contract”
thereafter, and there was no requirement for “consideration” to Attorney Krenis or to Hill
Boren. This issue is without merit.
For the aforementioned reasons, we affirm the trial court’s grant of summary
judgment in favor of the defendants on the breach of contract claim.
B. Misrepresentation
In its complaint, Hill Boren alleged that Attorney Krenis was induced to agree to a
compromised sum, rather than the one-fourth contingency fee provided in the contract, based
upon an alleged misrepresentation and false statement by Attorney O’Dwyer. Specifically,
Hill Boren claimed that Attorney O’Dwyer told Attorney Krenis, or about June 28, 2010, that
Mr. Hamm’s case was “not a big case” and that there was not a lot of money involved in the
settlement negotiations. Hill Boren argues that it did not receive its one-fourth share of the
contingency fee as a result of its reliance on this misrepresentation. Paty, Rymer, & Ulin
basically took the position that the contract was terminated when Mr. Hamm terminated
Attorney Krenis and Hill Boren in September 2008, and therefore, nothing that happened
thereafter was material, regardless of what representations were allegedly made, because the
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amount Hill Boren could recover for its fee was already set by the contract.16
We agree with Paty, Rymer, & Ulin’s position on this issue. As explained above, Hill
Boren was not entitled to receive one-fourth of the contingency fee as provided in the
original contract because Hill Boren was terminated for cause in September 2008, nearly two
years before the settlement of Mr. Hamm’s case. Any alleged misrepresentation about the
value of the case in June 2010 did not cause Hill Boren to agree to a sum less than it was
entitled to receive. Hill Boren was only entitled to receive quantum meruit for its services
under the provisions of the parties’ contract and under Tennessee law. Thus, Paty, Rymer,
& Ulin negated an essential element of Hill Boren’s misrepresentation claim, i.e., that the
alleged misrepresentation caused damages to Hill Boren. See Stanfill v. Mountain, 301
S.W.3d 179, 188 (Tenn. 2009) (stating that an essential element of a claim for intentional
misrepresentation is that the “plaintiff suffered damage as a result of the misrepresentation”);
Bennett v. Trevecca Nazarene University, 216 S.W.3d 293, 300-301 (Tenn. 2007)
(explaining that the law of negligent misrepresentation subjects one to liability “for pecuniary
loss caused to [others] by their justifiable reliance upon the information” supplied by the
defendant). Finding no genuine issue of material fact regarding the element of causation, we
affirm the trial court’s grant of summary judgment to Paty, Rymer, & Ulin on the
misrepresentation claims.
C. Intentional Interference with a Business Relationship
& Procurement of Breach of Contract
As the basis for these claims, Hill Boren basically alleged that Paty, Rymer & Ulin
intentionally procured a breach of contract by “renegotiating a contract of representation
between itself and Hamm, reducing the contingency rate to 33%, and allegedly eliminating
any monies due Plaintiff pursuant to The Contract[.]” Notably, Hill Boren's complaint did
not allege that Attorney O'Dwyer took any action to cause Mr. Hamm to terminate Attorney
Krenis in 2008.17 Instead, it argued that she interfered with Hill Boren's contract when she
16
The trial court concluded that, even assuming that a misrepresentation was made, the alleged
reliance by Attorney Krenis was not justifiable or reasonable. The court pointed out that Attorney Krenis
was “a lawyer of some experience,” and his young client had significant injuries with a 28% impairment
rating, and an estimated economic loss for past and future wages of over $1.5 million. Thus, the Court found
that “[f]or him to think the case was not ‘big’ or to simply rely on that alleged statement is not reasonable.”
The court found “no reason to believe that he could not roughly evaluate the case” because a FELA case is
“not that complicated.” Again, because of the numerous alternative arguments presented by the parties, we
have resolved this issue on a different ground than the trial court.
17
Hill Boren’s brief on appeal also emphasized that Hill Boren was not claiming that Mr. Hamm
(continued...)
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“renegotiated” and reduced the contingency fee during the second mediation. In apparent
recognition of this distinction, the trial court noted that there was no evidence that Mr. Hamm
acted at the suggestion of Attorney O'Dwyer or Paty, Rymer & Ulin. With regard to these
causes of action, the trial court’s order granting summary judgment also stated:
Plaintiff asserts that PR&U's reduction of its fee to settle the FELA case (from
40% to 33%) somehow factors in the analysis of these two causes of action.
This assertion ignores the chronology of when the reduction of the fee took
place and the clear motivation for the reduction of the fee. There is simply no
thread connecting the later fee reduction to these asserted causes of action.
We agree with the court’s observation. Hill Boren is basically asserting that a tortious
interference with its contract occurred after it was terminated in September 2008. Like the
previous claim for misrepresentation, Hill Boren’s allegations with regard to these causes of
action were based on the premise that the contract between the three parties remained in
effect after the September 2008 termination. This can be seem from Hill Boren’s argument
on appeal that Attorney O’Dwyer intentionally interfered with Hill Boren’s business
relationship with Mr. Hamm when, “during the second mediation,” she “renegotiated an oral
contract of representation between [Paty, Rymer & Ulin] and Hamm . . . reducing the
contingency rate to 33% and allegedly eliminating any monies due to Plaintiff pursuant to
the Contract,” because “the Contract was still in force and effect.” Hill Boren again claims
that “the result” of the renegotiation of the contract during the second mediation was “that
Plaintiff [Hill Boren] did not receive the fee due to it pursuant to the Contract.”
We conclude that Hill Boren’s claims for interference with a business relationship and
procurement of breach of contract are subject to the same fate as its claims for
misrepresentation. Paty, Rymer, & Ulin has negated an essential element of these claims by
demonstrating that Attorney O’Dwyer’s reduction of her fee during mediation did not cause
damages to Hill Boren or result in a breach of contract. See Trau-Med of America, Inc. v.
Allstate Ins. Co., 71 S.W.3d 691, 701 (Tenn. 2002) (stating that the tort of intentional
interference with business relationships requires “damages resulting from the tortious
interference”); Federated Rural Elec. Ins. Exchange v. Hill, No. M2005-02461-COA-R3-
CV, 2007 WL 907717, at *13 (Tenn. Ct. App. Mar. 26, 2007) (explaining that in order to
recover for procurement of breach of contract, a plaintiff must prove, among other things,
“a breach of contract,” that “the act complained of [was] the proximate cause of the breach
of contract,” and “damages resulting from the breach of contract”). Because the contract
with Hill Boren had already been terminated by Mr. Hamm, for cause, in September 2008,
17
(...continued)
terminated its services at the suggestion of Attorney O’Dwyer.
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Hill Boren was no longer entitled to one-fourth of the contingency fee, and Attorney
O’Dwyer’s decision to reduce her contingency fee during the June 2010 mediation did not
interfere with Hill Boren’s contract or procure a breach of Hill Boren’s contract with Mr.
Hamm. Summary judgment was properly granted as to both of these claims.
D. Punitive Damages
Because we have affirmed the trial court’s grant of summary judgment to the
defendants on Hill Boren’s other causes of action, we likewise find that Hill Boren cannot
sustain its claim for punitive damages. See Jenkins v. Brown, No. M2005-02022-COA-R3-
CV, 2007 WL 4372166, at *13 (Tenn. Ct. App. Dec. 14, 2007) (“In Tennessee, there can be
no claim for punitive damages alone. Thus, without an award of compensatory damages or
any other sort of remedial relief, an award of punitive damages cannot stand.”); B & L Corp.
v. Thomas and Thorngren, Inc., 162 S.W.3d 189, 223 (Tenn. Ct. App. 2004) (“a party is
entitled to recover punitive damages only if there is an award of actual damages”); Oakley
v. Simmons, 799 S.W.2d 669, 672 (Tenn. Ct. App. 1990) (“there can be no cause of action
for punitive damages alone”). All other issues are pretermitted.
V. C ONCLUSION
For the aforementioned reasons, we affirm the decision of the chancery court. Costs
of this appeal are taxed to the appellant, Hill Boren, P.C., and its surety, for which execution
may issue if necessary.
_________________________________
ALAN E. HIGHERS, P.J., W.S.
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