Timothy J. Pagliara v. Marlene Moses

09/14/2022
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
June 3, 2021 Session
TIMOTHY J. PAGLIARA V. MARLENE MOSES, ET AL.
Appeal from the Circuit Court for Davidson County
No. 18C2241 Ross H. Hicks, Judge
No. M2020-00990-COA-R3-CV1
This is a consolidated appeal from the trial court’s attorney fee award pursuant to
Tennessee Code Annotated section 20-12-119(c), which concerns awards of the costs and
reasonable and necessary attorney fees to parties who prevail on a Rule 12.02(6) motion to
dismiss for failure to state a claim upon which relief can be granted. The plaintiff filed a
complaint alleging various claims against the defendants. Upon the defendants’ motion,
the trial court entered a judgment of dismissal on December 3, 2018. The plaintiff took a
timely appeal, and we affirmed the judgment of dismissal in full. We remanded the case
for collection of the costs below. After the Tennessee Supreme Court denied review, the
defendants, for the first time, moved for attorney fees and expenses pursuant to Tennessee
Code Annotated section 20-12-119(c) in the trial court. The trial court granted that motion
and awarded the statutory maximum amount of fees to the defendants. We vacate the trial
court’s award of attorney fees and costs.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
Vacated; Case Remanded
JOHN W. MCCLARTY, J., delivered the opinion of the Court, in which D. MICHAEL SWINEY,
C.J., and THOMAS R. FRIERSON, II, J., joined.
Eugene N. Bulso, Jr. and Paul J. Krog, Brentwood, Tennessee, for the appellant, Timothy
J. Pagliara.
Winston S. Evans, Nashville, Tennessee, for the appellees, Marlene Moses and MTR
Family Law, PLLC.
1
By Order entered October 7, 2020, we consolidated the record in the previous appeal of this case,
case number M2018-02188-COA-R3-CV, with the record in the instant appeal.
OPINION
I. BACKGROUND
On August 31, 2018, appellant Timothy J. Pagliara (“Plaintiff”) filed a complaint in
the Circuit Court for Davidson County (“trial court”), asserting various claims against
attorney Marlene Moses and MTR Family Law, PLLC (“Defendants”) for alleged
wrongdoing related to a divorce proceeding.2 Defendants’ malpractice insurance carrier
retained an attorney to represent them in the lawsuit. On October 3, 2018, Defendants
moved under Tennessee Rule of Civil Procedure 12.02(6) to dismiss all of the claims in
Plaintiff’s complaint for failure to state a claim upon which relief can be granted.
Defendants did not request attorney fees in their motion to dismiss or in any other filing at
the time. The trial court granted the Rule 12.02(6) motion, dismissed Plaintiff’s complaint
in its entirety, and assessed costs against Plaintiff on December 3, 2018. Because there
was no claim or request for attorney fees pending at the time, the trial court’s order did not
address attorney fees. Plaintiff appealed to this Court. He filed the notice of appeal on
December 5, 2018. Defendants neither raised any issues for our review nor requested
attorney fees in the first appeal pursuant to Tennessee Code Annotated section 27-1-122.3
On February 20, 2020, this Court affirmed the trial court’s judgment of dismissal of
Plaintiff’s claims. Pagliara v. Moses, 605 S.W.3d 619, 629 (Tenn. Ct. App. 2020). The
corresponding Judgment read:
It is therefore ORDERED and ADJUDGED by this Court that the judgment
of the Circuit Court for Davidson County is affirmed, and this cause is
remanded to the Circuit Court for Davidson County for collection of the costs
below. Costs on appeal are assessed against the appellant, Timothy J.
Pagliara, and his surety, if any.
2
The facts underlying the complaint are not relevant to this appeal and the parties do not dispute
the facts related to the current appeal.
3
“When it appears to any reviewing court that the appeal from any court of record was frivolous
or taken solely for delay, the court may, either upon motion of a party or of its own motion, award just
damages against the appellant, which may include, but need not be limited to, costs, interest on the
judgment, and expenses incurred by the appellee as a result of the appeal.” Tenn. Code Ann. § 27-1-122.
-2-
Following Plaintiff’s application for permission to appeal, the Tennessee Supreme
Court denied review on June 4, 2020. Order, Pagliara v. Moses, et al., No. M2018-02188-
SC-R11-CV (Tenn. June 4, 2020).
On June 16, 2020, Defendants filed in the trial court a motion for costs and fees
pursuant to Tennessee Code Annotated section 20-12-119(c). Defendants requested the
statutory maximum of $10,000.4 The Mandate from this Court was issued on June 19,
2020, and was filed in the trial court on June 22, 2020. The Mandate read:
Whereas, in our Court of Appeals, Middle Division at Nashville, it was
adjudged and ordered in the cause of TIMOTHY J. PAGLIARA v.
MARLENE MOSES ET AL. appealed to our said Court that the same be
remanded thereto for further proceedings and final determination therein.
These are, therefore, to require you, the Davidson County Circuit Court as
aforesaid, that you proceed with the execution of this Judgment of our said
Court of Appeals by such further proceedings in your Court as shall
effectuate the objects of this order to remand, and attain the ends of justice.
On June 29, 2020, Plaintiff opposed Defendants’ motion for attorney fees, arguing
that it was barred by the final judgment affirmed on appeal and was untimely. Plaintiff
explained that Defendants did not request an award of attorney fees in their motion to
dismiss filed October 3, 2018, nor did they do so at any point before the trial court’s entry
of final judgment on December 3, 2018. Plaintiff reasoned that this Court’s judgment
which remanded the case to the trial court “for collection of the costs below”5 neither
directed nor permitted the trial court to reopen the case to hear a motion for attorney fees
under section 20-12-119(c). Plaintiff also contended that the fees and costs claimed by
Defendants were inaccurate. Following a hearing on July 7, 2020, the trial court granted
Defendants’ motion by order entered July 13, 2020. Defendants were awarded $10,000 in
attorney fees and costs, subject to credit for taxable costs previously paid by Plaintiff.
Plaintiff appealed.
4
Through their counsel’s declaration and time sheets, Defendants represented that their attorney
fees were $64,995.30 and that their costs totaled $2,044.03. This was later amended to $13,220 total.
“Notwithstanding any other provision of this section, the court shall not require a party to pay costs under
this section in excess of a combined total of ten thousand dollars ($10,000) in any single lawsuit.” Tenn.
Code Ann. § 20-12-119(c)(4).
5
Plaintiff paid the court costs to the trial court clerk’s office on June 25, 2020.
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II. ISSUES
Plaintiff raises one issue on appeal which we restate slightly:
A. Whether a request for attorney fees pursuant to Tennessee Code Annotated
section 20-12-119(c) may be made for the first time following the appeal from
the underlying judgment.
III. STANDARD OF REVIEW
The interpretation of Tennessee Code Annotated section 20-12-119 is a question of
law. “We review questions of law, including those of statutory construction, de novo with
no presumption of correctness.” Snyder v. First Tennessee Bank, N.A., No. E2015-00530-
COA-R3-CV, 2016 WL 423806, at *3 (Tenn. Ct. App. Feb. 3, 2016) (citing Cunningham
v. Williamson Cnty. Hosp. Dist., 405 S.W.3d 41, 43 (Tenn. 2013); Mills v. Fulmarque, Inc.,
360 S.W.3d 362, 366 (Tenn. 2012)). “When considering the interpretation of a statute, we
must determine the General Assembly’s intent and purpose by reading the words of the
statutes using their plain and ordinary meaning in the context in which the words appear.”
Montpelier v. Moncier, No. E2018-00448-COA-R3-CV, 2019 WL 990529, at *2 (Tenn.
Ct. App. Feb. 28, 2019). “When a statute’s text is clear and unambiguous, the courts need
not look beyond the statute itself to ascertain its meaning.” Lee Med., Inc. v. Beecher, 312
S.W.3d 515, 527 (Tenn. 2010). When construing a statute, a court tries “to give full effect
to the General Assembly’s purpose, stopping just short of exceeding its intended
scope.” Id. at 526 (citing Larsen-Ball v. Ball, 301 S.W.3d 228, 232 (Tenn. 2010)). We
seek to construe statutes “in a way that avoids conflict and facilitates harmonious operation
of the law.” Id. at 527 (citations omitted).
When the trial court awards costs, including attorney fees, pursuant to Tennessee
Code Annotated section 20-12-119(c), an appellate court reviews
the trial court’s factual determination of whether litigation costs, including
attorney’s fees, are reasonable under an abuse of discretion standard. . . .
However, apart from these specific factual determinations, the standard of
review for the award of litigation costs pursuant to Tennessee Code
Annotated § 20-12-119(c) is a matter of law due to the mandatory language
of the statute.
Snyder, 2016 WL 423806, at *8.
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IV. DISCUSSION
A.
Here, the trial court awarded attorney fees to Defendants pursuant to Tennessee
Code Annotated section 20-12-119(c), which, states in pertinent part, as follows:
(1) Notwithstanding subsection (a) or (b), in a civil proceeding, where a trial
court grants a motion to dismiss pursuant to Rule 12 of the Tennessee Rules
of Civil Procedure for failure to state a claim upon which relief may be
granted, the court shall award the party or parties against whom the
dismissed claims were pending at the time the successful motion to dismiss
was granted the costs and reasonable and necessary attorney’s fees incurred
in the proceedings as a consequence of the dismissed claims by that party or
parties. The awarded costs and fees shall be paid by the party or parties
whose claim or claims were dismissed as a result of the granted motion to
dismiss.
(2) Costs shall include all reasonable and necessary litigation costs actually
incurred due to the proceedings that resulted from the filing of the dismissed
claims, including, but not limited to:
(A) Court costs;
(B) Attorneys’ fees;
(C) Court reporter fees;
(D) Interpreter fees; and
(E) Guardian ad litem fees.
(3) An award of costs pursuant to this subsection (c) shall be made only after
all appeals of the issue of the granting of the motion to dismiss have been
exhausted and if the final outcome is the granting of the motion to dismiss.
The award of costs and attorneys’ fees pursuant to this section shall be stayed
until a final decision which is not subject to appeal is rendered.
(4) Notwithstanding any other provision of this section, the court shall not
require a party to pay costs under this section in excess of a combined total
of ten thousand dollars ($10,000) in any single lawsuit. . . . Nothing in this
section shall be construed to limit the award of costs as provided for in other
sections of the code or at common law.
Tenn. Code Ann. § 20-12-119(c)(1)–(4) (emphasis added).
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This Court has previously explained that section 20-12-119(c) “clearly and
unambiguously requires that there be an unappealable final decision before a trial court can
award attorney fees pursuant to the statute.” Donovan v. Hastings, No. M2019-01396-
COA-R3-CV, 2020 WL 6390134, at *3 (Tenn. Ct. App. Oct. 30, 2020), rev’d on other
grounds, No. M2019-01396-SC-R11-CV, --- S.W.3d ---, 2022 WL 2301177 (Tenn. June
27, 2022) (emphasis added). The statute does not address when a litigant must actually
request its costs that are recoverable under the statute. The statute merely dictates the point
during the litigation at which the trial court shall “award” costs including attorney fees to
the party who prevailed on its Rule 12.02(6) motion, namely, when “a final decision which
is not subject to appeal is rendered.” Tenn. Code Ann. § 20-12-119(c)(3). The statute
plainly requires that the trial court’s final determination of the prevailing party’s costs,
including attorney fees, be “stayed.” Id. By logic, if there is no request for costs, then
there can be no award for the trial court to stay pending a final decision which is not subject
to appeal.
A final judgment “is one that resolves all of the parties’ claims and leaves the court
with nothing to adjudicate.” Ball v. McDowell, 288 S.W.3d 833, 836–37 (Tenn. 2009); see
also, Tenn. R. App. P. 3(a).6 “[U]nless otherwise specified in a trial court’s order, ‘an order
granting a motion to dismiss for failure to state a claim upon which relief can be granted
under Tennessee Rule of Civil Procedure 12.02(6) is an adjudication on the merits.’” Aylor
v. Carr, No. M2018-01836-COA-R3-CV, 2019 WL 2745625, at *4 (Tenn. Ct. App. July
1, 2019) (quoting Creech v. Addington, 281 S.W.3d 363, 378 (Tenn. 2009)). The parties
do not dispute that the trial court’s December 3, 2018, order was an adjudication on the
merits and a final judgment. On appeal, Plaintiff urges that once a “final judgment has
been entered and appealed, unasserted claims are forfeited and barred, no matter how
indisputable the right to relief on them could have been had they been asserted in a timely
manner.” For their part, Defendants counter that, to promote finality of judgments and
judicial economy, “motions for fees pursuant to T.C.A. 20-12-119 should not be pursued
until the underlying judgment and appeals have become final.”
In support of their position, Defendants cite this Court’s opinions in Donovan and
in Irvin v. Green Wise Homes, LLC, No. M2019-02232-COA-R3-CV, 2021 WL 7097826
Tennessee Rule of Appellate Procedure 3(a) provides:
In civil actions every final judgment entered by a trial court from which an appeal lies to
the Supreme Court or Court of Appeals is appealable as of right. Except as otherwise
permitted in Rule 9 and in Rule 54.02 Tennessee Rules of Civil Procedure, if multiple
parties or multiple claims for relief are involved in an action, any order that adjudicates
fewer than all the claims or the rights and liabilities of fewer than all the parties is not
enforceable or appealable and is subject to revision at any time before entry of a final
judgment adjudicating all the claims, rights, and liabilities of all parties.
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(Tenn. Ct. App. Feb. 24, 2021), perm. app. denied (Tenn. June 9, 2021). Both Donovan
and Irvin are factually distinguishable from the present action. In Donovan, the party who
ultimately won the Rule 12.02(6) motion to dismiss “requested an award of her attorney
fees pursuant to Tenn. Code Ann. § 20-12-119(c)” at the time of filing the motion to
dismiss. Donovan, 2020 WL 6390134, at *1, rev’d on other grounds, No. M2019-01396-
SC-R11-CV, --- S.W.3d ---, 2022 WL 2301177 (Tenn. June 27, 2022). The Donovan trial
court’s order of dismissal under Rule 12.02(6), which was deemed “a final judgment under
Tenn. R. Civ. P. 58” by the trial court, “did not address [the prevailing party’s] request for
attorney fees.” Id. So, the prevailing party in Donovan reasserted her claim by filing “a
motion pursuant to Tenn. Code Ann. § 20-12-119(c) seeking an award of $10,000 for her
costs and attorney fees incurred prosecuting the motion to dismiss.” Id. In Irvin, the parties
who prevailed on their Rule 12.02(6) motions to dismiss requested attorney fees pursuant
to section 20-12-119(c) at the time of filing those motions. Irvin, 2021 WL 709782, at *1.
In short, neither Donovan nor Irvin involved parties, like Defendants here, who waited to
request attorney fees pursuant to section 20-12-119(c) for the first time following remand
from the appeal of the judgment of dismissal. Defendants do not cite any other caselaw to
support their argument. Because of the factual and procedural differences between this
action, Donovan, and Irvin, we decline further discussion of those opinions. For the
reasons explained below, the doctrine of waiver and the limitations imposed on the trial
court upon remand of Plaintiff’s first appeal control the narrow issue presented.
A party may waive a claim for attorney fees by failing to properly pursue it. Seaton
v. Wise Properties-TN, LLC, No. E2013-01360-COA-R3-CV, 2014 WL 1715068 (Tenn.
Ct. App. Apr. 30, 2014) provides guidance on this subject. In Seaton, the sellers of real
property sued the buyer for breach of contract. Seaton, 2014 WL 1715068, at *1. The
buyer filed a counterclaim requesting attorney fees. Id. at *6. The buyer then moved for
summary judgment. Id. at *3. The buyer’s motion for summary judgment “was silent as
to a claim for attorney’s fees.” Id. at *6. The trial court’s order granting summary
judgment “did not address the [buyer’s] counterclaim for attorney’s fees.” Id. The sellers
appealed to this Court. Id. at *1; Seaton v. Wise Properties-TN, LLC, No. E2011-01728-
COA-R3-CV, 2012 WL 2362144, at *5 (Tenn. Ct. App. June 22, 2012). We noted that:
Following the trial court’s entry of summary judgment and prior to the
[sellers’] filing a notice of appeal, [the buyer] did not file a motion to alter or
amend the judgment or any other post-judgment motion regarding attorney’s
fees. [The buyer] filed no application for interlocutory appeal by permission
under Tennessee Rule of Appellate Procedure 9 or extraordinary appeal by
permission under Tennessee Rule of Appellate Procedure 10. Moreover, the
trial court did not certify the order as final under Tennessee Rule of Civil
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Procedure 54.02.[7] Therefore, this Court’s jurisdiction to hear the first
appeal was predicated upon the finality of the trial court’s summary judgment
order.
Seaton, 2014 WL 1715068, at *6.
Following entry of this Court’s opinion and judgment affirming the trial court’s
grant of summary judgment,8 the sellers filed an application for permission to appeal in the
Tennessee Supreme Court, which was subsequently denied. Seaton, 2014 WL 1715068,
at *4. “The action was then remanded to the trial court, pursuant to this Court’s judgment,
‘for collection of costs assessed below.’” Id. In the conclusion of this Court’s opinion
affirming summary judgment, the case was “remanded for any further proceedings that
may be required.” Seaton, 2012 WL 2362144, at *8. The buyer did not raise the attorney
fee issue at all during the first appeal to this Court or in its application for permission to
appeal to the Tennessee Supreme Court. Seaton, 2014 WL 1715068, at *7. Following this
Court’s remand to the trial court, the buyer filed a motion for an award of attorney fees and
an affidavit of counsel, pursuant to a default provision of the parties’ agreement. Id. at *4.
After conducting a post-remand hearing, the trial court awarded the buyer attorney fees.
Id. The seller appealed. Id. We concluded that the buyer “abandoned its counterclaim for
attorney fees” by failing to question the finality of the summary judgment and by failing to
raise the issue during the first appeal. Id. at *7. Additionally, finding that the “instruction
on remand for the trial court to conduct ‘any further proceedings that may be required’ in
enforcing the affirmed judgment and collecting costs did not authorize the trial court to
reopen a claim previously abandoned by one of the parties and therefore previously
settled,” we held that the trial court exceeded its authority by considering the buyer’s post-
remand motion for attorney fees.” Id. at *7. Accordingly, the trial court’s award of
attorney fees to the buyer was vacated. Id.
The same reasoning applies here especially when, unlike the buyer in Seaton,
Defendants never requested their attorney fees prior to the entry of the trial court’s
judgment of dismissal. Defendants cemented their waiver by failing to raise during the
appeal9 from the underlying final judgment of dismissal the issue of whether, pursuant to
section 20-12-119(c), they were entitled to an award of attorney fees incurred in the trial
7
Rule 54.02 “is an exception to Rule 3 that permits the trial court, without permission from the
appellate court, to certify an order as final and appealable, even if parts of the overall litigation remain
pending in the trial court.” Johnson v. Nunis, 383 S.W.3d 122, 130 (Tenn. Ct. App. 2012).
8
Seaton, 2012 WL 2362144, at *8.
9
See Galligan v. Galligan, No. M2006-00833-COA-R3-CV, 2007 WL 2295999, at *8 (Tenn. Ct.
App. Aug. 10, 2007) (“One waives the right to appellate review concerning an issue that was not, but could
have been, raised in a previous appeal.”).
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court.10 Following remand, it was too late for Defendants to move for attorney fees or
otherwise introduce the issue into the litigation for the first time. Furthermore, as in Seaton,
considering our limited remand instructions for the “collection of the costs below,” the trial
court erred by hearing a claim that was never before asserted. As previously explained:
Once the mandate [from an appellate court] reinvests the trial court’s
jurisdiction over a case, the case stands in the same posture it did before the
appeal except insofar as the trial court’s judgment has been changed or
modified by the appellate court. . . . [T]he trial court does not have the
authority to modify or revise the appellate court’s opinion, or to expand the
proceedings beyond the remand order. The trial court’s sole responsibility is
to carefully comply with directions in the appellate court’s opinion.
Freeman Indus. LLC v. Eastman Chem. Co., 227 S.W.3d 561, 567 (Tenn. Ct. App. 2006)
(citing Earls v. Earls, No. M1999-00035-COA-R3-CV, 2001 WL 504905, at *3 (Tenn. Ct.
App. May 14, 2001)). Here, when Plaintiff first appealed to this Court, the complaint had
been dismissed in its entirety, the judgment of dismissal was final, and the case below was
concluded. Our opinion did not modify the judgment so, when the mandate issued, the
case returned to the same concluded posture.
With the foregoing considerations in mind, we conclude that the trial court erred in
hearing Defendants’ motion for costs and fees made for the first time following the appeal
from the underlying judgment of dismissal. Therefore, we vacate the trial court’s July 13,
2020 judgment awarding costs, including attorney fees, to Defendants.
V. CONCLUSION
The judgment of the trial court is vacated. The case is remanded for entry of a
judgment consistent with this opinion. Costs of the appeal are taxed to the appellees,
Marlene Moses and MTR Family Law, PLLC.
_________________________________
JOHN W. McCLARTY, JUDGE
10
Attorney fees incurred on appeal are not recoverable pursuant to Tennessee Code Annotated
section 20-12-119. First Cmty. Mortg., Inc. v. Appraisal Servs. Grp., Inc., 644 S.W.3d 354, 368 (Tenn. Ct.
App. 2021), perm. app. denied (Tenn. Mar. 24, 2022) (holding that “Tennessee law does not provide that
attorney’s fees for appellate work are authorized under section 20-12-119(c) in the absence of an explicit
provision providing for that relief.”).
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