IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

February 4, 2021 Session

THOMAS A. BUCKLEY INDIVIDUALLY AND DERIVATIVELY ON 

BEHALF OF TLC OF FRANKLIN, INC. v. GROVER C. CARLOCK, JR. ET 

AL.

Appeal from the Chancery Court for Williamson County

No. 46310 Joseph A. Woodruff, Chancellor

___________________________________

No. M2019-02294-COA-R3-CV

___________________________________

A minority shareholder in a close corporation brought a shareholder oppression claim. The 

trial court heard the claim in two phases. After the first phase, the trial court found that 

there was shareholder oppression by the majority shareholder and determined that 

redemption of the minority shareholder’s shares was the appropriate remedy. After the 

second, the court found the fair value of the minority shareholder’s shares. The court later 

awarded attorney’s fees to the minority shareholder, but it failed to award fees associated 

with the second phase of trial. The court also denied the minority shareholder’s request for 

prejudgment interest and dismissed an unjust enrichment claim. On appeal, the minority 

shareholder takes issue with the court’s fair-value determination. He also claims that he 

was entitled to prejudgment interest, as well as attorney’s fees for both phases of trial. And 

he argues that the court erred in dismissing his unjust enrichment claim. We affirm.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed

W. NEAL MCBRAYER, J., delivered the opinion of the court, in which ANDY D. BENNETT

and ARNOLD B. GOLDIN, JJ., joined.

Eugene N. Bulso, Jr., Nicholas D. Bulso, and Paul J. Krog, Brentwood, Tennessee, for the 

appellant, Thomas A. Buckley.

James D. Duckworth, Germantown, Tennessee, and Laura L. Deakins, Memphis, 

Tennessee, for the appellees, Grover C. Carlock, Jr., and Carlock Management Company, 

Inc.

02/28/2022
2

OPINION

I.

A.

TLC of Franklin, Inc., an “ultra-high-end” car dealership in Williamson County, 

Tennessee, is a close corporation. At its formation, Thomas Buckley owned 25% of the 

company’s shares, which he bought for $375,000. He also served as TLC’s general 

manager. 

In 2014, Grover Carlock acquired 75% of TLC from other shareholders for 

$10,578,087.85. A few months later, Mr. Buckley reduced his stake in the company. He 

sold 5% of the company’s shares to Luke Bryan for $700,000. This left the company with 

three shareholders: Mr. Carlock, Mr. Buckley, and Mr. Bryan. 

After Mr. Carlock acquired his majority stake, Mr. Buckley remained general 

manager. Mr. Buckley also served on the board of directors and as an officer of the 

company. At first, the two worked cooperatively. But, over time, the business relationship 

soured. 

Mr. Buckley complained that Mr. Carlock treated TLC as his own and gave no 

regard to the rights or interests of the other shareholders. Mr. Carlock never held 

shareholder or director meetings, which were required by TLC’s bylaws. And he entered 

into various transactions on behalf of TLC that benefitted either Mr. Carlock or an entity 

in which he held an interest. Among those transactions was an increase in management 

fees paid by TLC to Carlock Management Company, Inc., a corporation wholly owned by 

Mr. Carlock. 

B.

Mr. Buckley sued Mr. Carlock and Carlock Management Company (collectively, 

“Defendants”), seeking to dissolve TLC. As grounds, Mr. Buckley claimed that 

Mr. Carlock “employ[ed] oppressive and fraudulent acts to squeeze out [Mr. Buckley].” 

See Tenn. Code Ann. § 48-24-301(2)(B) (2019) (allowing a court to dissolve a corporation 

if “those in control . . . have acted . . . in a manner that is illegal, oppressive, or fraudulent”). 

He also claimed that Mr. Carlock had wasted TLC’s assets. See id. § 48-24-301(2)(D) 

(allowing a court to dissolve a corporation if “[t]he corporate assets are being misapplied 

or wasted”). And he accused Mr. Carlock of usurping TLC’s corporate opportunities, 

engaging in self-dealing transactions on behalf of TLC, and breaching his fiduciary duty 

to TLC. 
3

In addition to seeking TLC’s dissolution, Mr. Buckley brought causes of action for 

promissory fraud, conversion, and unjust enrichment. He sought damages against 

Defendants, as well as an injunction unwinding the self-dealing transactions. Mr. Buckley 

also sought attorney’s fees and prejudgment interest. 

After a bench trial, the court found that Mr. Carlock’s actions were “oppressive of 

Mr. Buckley’s rights as a minority shareholder.” But dissolution of the company would 

have been “too extreme” of a remedy. At trial, Mr. Buckley abandoned dissolution as a 

form of relief and instead requested redemption of his shares. The court found that 

redemption was “the more appropriate remedy.” 

Although Mr. Buckley had given his opinion of the fair value of his shares in TLC, 

the court found that opinion unreliable. And the record was otherwise insufficient for the 

court to determine fair value. So the court conducted another hearing at which it heard 

valuation expert testimony. 

Adam Lawyer testified for Mr. Buckley. Mr. Lawyer considered the three valuation 

methods—market, income, and asset—and selected a “market” approach. He employed 

three methodologies. The first two were based on the “current industry market indicator” 

or “blue-sky” method. Mr. Lawyer described the method as using a blue-sky multiple to 

account for all intangible value of the dealership, including goodwill and, more 

importantly, franchise value. 

In the first methodology, the blue-sky multiple was multiplied by normalized 

earnings. To arrive at normalized earnings, revenues of TLC from 2015 and 2016 were 

multiplied by a “normalization factor” to estimate expected profitability going forward 

under normal conditions. Mr. Lawyer used a normalization factor of 5%, which came from 

the “range of normal earnings from [other] ultra-high-end franchises.” Relative to those 

other franchises, Mr. Lawyer expected TLC’s normalized earnings to be between 4% and 

6%. He “simply selected the midpoint at 5%.” 

Mr. Lawyer then multiplied the normalized earnings by a blue-sky multiple of eight. 

He arrived at that figure based on his experience in ultra-high-end dealership transactions 

and automotive dealership publications. Based on those publications, “premium luxury” 

dealerships show blue-sky multiples between about seven and nine. And, in Mr. Lawyer’s 

experience, ultra-high-end dealerships were “a step above that.” So, in Mr. Lawyer’s 

opinion, a blue-sky multiple of eight “certainly seem[ed] reasonable.” After multiplying 

normalized earnings by the blue-sky multiplier, Mr. Lawyer added in TLC’s adjusted net 

assets. 

The second methodology was similar to the first. It also involved multiplying 

normalized earnings by a blue-sky multiple of eight and adding in adjusted net assets. But, 
4

instead of using normalized earnings, Mr. Lawyer used projected revenues from an 

investment presentation prepared by management. 

The third methodology was based on prior TLC stock transactions. Mr. Lawyer 

analyzed Mr. Carlock’s purchase of 75% of TLC and Mr. Bryan’s purchase of 5% of TLC. 

Mr. Lawyer excluded Mr. Buckley’s initial purchase of 25% of TLC, reasoning that the 

purchase was “an option-based purchase at a previously agreed-upon price.” So, according 

to Mr. Lawyer, Mr. Buckley’s purchase did not reflect TLC’s fair value. 

To arrive at a value of Mr. Buckley’s shares, Mr. Lawyer tabulated a weighted 

average from each methodology. He opined that the value of Mr. Buckley’s shares was 

$3.3 million. 

Scott Womack testified for Mr. Carlock. Mr. Womack used an income approach. 

In determining TLC’s profitability, Mr. Womack used a normalization factor of 1.5% 

instead of 5%. That figure, he explained, was more in line with TLC’s actual performance. 

It was also supported by his experience in performing valuations and other information. 

For TLC’s intangible value, Mr. Womack used a blue-sky multiple of 7.5. But he 

admitted that Mr. Lawyer’s blue-sky multiple of eight was still “within the range of 

reason.” Mr. Womack did not add in TLC’s assets to his calculation. In his view, to do so 

would have been “double counting.” An income approach assumes that the assets 

contribute to earnings. That is, the value of the assets is shown by the company’s earnings. 

Mr. Womack ultimately valued Mr. Buckley’s 20% interest in TLC at $1,092,000. 

The trial court accepted Mr. Lawyer’s blue-sky approach with normalized earnings. 

But the court found Mr. Lawyer’s normalization factor too high and Mr. Womack’s too 

low. Both experts testified that a compilation of data from the National Auto Dealers 

Association was authoritative and reliable. From this compilation, the court determined 

that normalization factors of 2.9% and 2.8% for 2015 and 2016 revenues, respectively, 

were appropriate. The court also determined that Mr. Lawyer’s blue-sky multiple of eight 

was appropriate. 

On including adjusted net assets in the valuation, the court added one-half of the 

adjusted net asset value. In doing so, the court arrived at a value of $1,745,489.50 for 

Mr. Buckley’s 20% share of TLC. Because a “punctilious method” of arriving at fair value 

“[wa]s not required,” the court rounded the amount to $1,745,500. 

In a later order, the trial court denied Mr. Buckley’s request for prejudgment 

interest. But the court granted his request for attorney’s fees. See id. § 48-24-302(d) (2019)

(allowing a court to award a party “its reasonable costs, including attorney fees, if it finds 

for such party” in a proceeding for judicial dissolution). The court found that Mr. Buckley 

was the prevailing party in one of two “phases” of the case. He prevailed in the first phase 
5

where he proved shareholder oppression. But he did not prevail in the second phase 

because the court’s valuation of his interest in TLC was closer to the value offered by Mr. 

Carlock. So the court awarded Mr. Buckley his reasonable attorney’s fees only for the first 

phase. And it found Mr. Buckley’s remaining claims moot. 

Mr. Carlock filed a motion to alter or amend the trial court’s order. Among other 

things, he claimed that he was entitled to attorney’s fees for successfully arguing a motion 

to compel discovery. The trial court found that Mr. Carlock had waived the issue. 

II.

Because this was a bench trial, our review is de novo on the record with a 

presumption that the trial court’s factual findings are correct, unless the evidence 

preponderates against those findings. TENN. R. APP. P. 13(d). Evidence preponderates 

against a finding of fact if the evidence “support[s] another finding of fact with greater 

convincing effect.” Rawlings v. John Hancock Mut. Life Ins. Co., 78 S.W.3d 291, 296 

(Tenn. Ct. App. 2001). We give great deference to the trial court’s credibility assessments. 

See Watson v. Watson, 309 S.W.3d 483, 490 (Tenn. Ct. App. 2009). We do not disturb 

“factual findings based on witness credibility unless clear and convincing evidence 

supports a different finding.” Coleman Mgmt., Inc. v. Meyer, 304 S.W.3d 340, 348 (Tenn. 

Ct. App. 2009). We review the trial court’s conclusions of law de novo with no 

presumption of correctness. Kaplan v. Bugalla, 188 S.W.3d 632, 635 (Tenn. 2006).

On appeal, Mr. Buckley argues that the trial court’s valuation of his interest in TLC 

was “erroneous as a matter of law, or at least contrary to the weight of the evidence.” He 

also claims that the court abused its discretion in denying him prejudgment interest. And 

he contends that he was entitled to attorney’s fees as the prevailing party for the whole 

case. Lastly, he argues that the trial court erred in dismissing his claim for unjust 

enrichment as moot.1

For their part, Defendants argue that the trial court abused its discretion in holding 

a separate valuation phase of trial. They also claim that the court erred in admitting a 

witness’s deposition into evidence. And they argue that they did not waive their issue as 

to attorney’s fees for the motion to compel. Finally, both parties request attorney’s fees on 

appeal.

A.

In Defendants’ view, the court should have dismissed Mr. Buckley’s claim after he 

failed to prove damages in the first phase of the trial. We conclude that Defendants waived 

 

1 Mr. Buckley also raised an issue about the timeliness of his appeal. But at oral argument, 

Defendants conceded that timeliness was not an issue.
6

this issue. A party waives an issue if it is “responsible for [the] error.” TENN. R. APP. P.

36(a). We do not permit a party to “‘take advantage of errors which he himself committed, 

or invited, or induced the trial court to commit.’” Godbee v. Dimick, 213 S.W.3d 865, 897 

(Tenn. Ct. App. 2006) (quoting Norris v. Richards, 246 S.W.2d 81, 85 (Tenn. 1952)). 

Here, after the liability phase of trial, Defendants suggested that “both sides get their own 

experts” for a damages hearing. They cannot now complain of the very procedure they 

suggested.

 

Even if Defendants did not waive the issue, a trial judge has discretion “in directing 

the course of a trial.” Bellisomi v. Kenny, 206 S.W.2d 787, 788 (Tenn. 1947). Thus, 

bifurcation of the issues is “left to the sound discretion of the trial judge.” See Ennix v. 

Clay, 703 S.W.2d 137, 139 (Tenn. 1986). And there is no “formal requirement” that a 

party move for bifurcation before the start of trial. Lamar Advert. Co. v. By-Pass Partners, 

313 S.W.3d 779, 789 (Tenn. Ct. App. 2009). Instead, a trial court may bifurcate the issues 

of liability and damages “at the virtual close of plaintiff’s proofs.” Id. (quoting Saxion v. 

Titan-C Mfg., Inc., 86 F.3d 553, 556 (6th Cir. 1996)). Even “after a party has announced 

that proof is closed,” a court has discretion to permit additional proof. Simpson v. Frontier 

Cmty. Credit Union, 810 S.W.2d 147, 149 (Tenn. 1991).

In what became the first phase of trial, Mr. Buckley abandoned judicial dissolution 

of TLC as a remedy. In his opening statement, he requested the redemption of his shares. 

But, during the first phase, he only offered his own opinion on the value of his shares, 

which the court rejected as unreliable. In the words of the court, this created a “hole in the

proof.” 

The court did not abuse its discretion in holding a second phase of trial to “fill the 

hole.” Ordering dissolution instead would have been a “drastic measure.” Cochran v. 

L.V.R. & R.C., Inc., No. M2004-01382-COA-R3-CV, 2005 WL 2217067, at *6 (Tenn. Ct. 

App. Sept. 12, 2005). And the court gave each side the opportunity to put on proof of the 

value of Mr. Buckley’s shares. Defendants were not prejudiced by the second phase of 

trial. See Ennix, 703 S.W.2d at 139 (explaining that bifurcation requires looking to “the 

risk of prejudice to either party”).

B.

During the first phase of trial, the court admitted a witness’s deposition into 

evidence. A witness’s deposition may be admitted into evidence if the witness is 

unavailable to testify. See TENN. R. EVID. 804(b)(1), cmt. Defendants argue that the 

witness was not unavailable, as the trial court found. Generally, we review a trial court’s 

decision on the admissibility of evidence only for an abuse of discretion. State v. Davis, 

466 S.W.3d 49, 61 (Tenn. 2015). This includes decisions on whether a witness was 

unavailable. See Hicks v. State, 490 S.W.2d 174, 179 (Tenn. Crim. App. 1972). 
7

Under these circumstances, the trial court did not abuse its discretion. The court 

found that the parties had agreed that Defendants would call the witness. Mr. Buckley 

planned to question the witness when Defendants called her. But Defendants then declined 

to call the witness. Because the witness was not at the courthouse for Mr. Buckley to call 

her, the court declared the witness unavailable. It determined that Mr. Buckley was 

“unfairly surprised” by Defendants’ decision not to call the witness. 

C.

In forcing the redemption of Mr. Buckley’s shares, the court essentially awarded 

him the same remedy that is available to a dissenting shareholder, which is “the fair value 

of the shareholder’s shares.”2 Tenn. Code Ann. § 48-23-102(a) (2019). Mr. Buckley

claims that the question of fair value is a question of fact. Although true, determining a 

company’s fair value “is generally left to the discretion of the courts.” Athlon Sports 

Commc’ns, Inc. v. Duggan, 549 S.W.3d 107, 120 (Tenn. 2018) (citation omitted); see Elk 

Yarn Mills v. 514 Shares of Common Stock of Elk Yarn Mills Inc., 742 S.W.2d 638, 640 

(Tenn. Ct. App. 1987) (explaining that, with share valuation, “much is left to the discretion 

of the evaluator”). 

A trial court abuses its discretion if it (1) applies an incorrect legal standard, (2) 

reaches an illogical or unreasonable decision, or (3) bases its decision on a clearly 

erroneous assessment of the evidence. Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 524 

(Tenn. 2010). A court’s decision need only be “within the range of acceptable alternative 

dispositions.” Harmon v. Hickman Cmty. Healthcare Servs., Inc., 594 S.W.3d 297, 305 

(Tenn. 2020) (citation omitted). 

Fair value is “the shareholder’s proportionate interest in the business valued as a 

going concern.” Raley v. Brinkman, 621 S.W.3d 208, 237-38 (Tenn. Ct. App. 2020). It 

may be proven “by any techniques or methods which are generally considered acceptable 

in the financial community and otherwise admissible in court.” Athlon Sports Commc’n, 

Inc., 549 S.W.3d at 126 (quoting Weinberger v. UOP, Inc., 457 A.2d 701, 713 (Del. 1983)). 

Fair value “is not the same as fair market value,” which is “ʻthe price at which 

property would change hands between a willing buyer and a willing seller when neither 

party is under an obligation to act.’” Id. at 119 (quoting Pueblo Bancorporation v. Lindoe, 

Inc., 63 P.3d 353, 362 (Colo. 2003)). Like a dissenting shareholder—or LLC member

whose interest is subject to a forced buyout—a minority shareholder forcing the 

 

2

In a proceeding brought under Tennessee Code Annotated § 48-24-301, the court “may enter a 

decree dissolving the corporation” if grounds for dissolution are shown. Tenn. Code Ann. § 48-24-304(a)

(2019). But dissolution is not required. The court may award an alternative remedy, including “requiring 

the corporation or a majority of its stockholders to purchase the stock of the minority stockholders at a . . . 

fair and reasonable price.” Cochran, 2005 WL 2217067, at *6.
8

redemption of his shares “is an unwilling seller with little or no bargaining power.” See id.

(citation omitted); see also Raley, 621 S.W.3d at 237. And fair value requires that a 

“shareholder[] be fairly compensated, which may or may not equate with the market’s 

judgment about the stock’s value.” Athlon Sports Commc’n, Inc., 549 S.W.3d at 119

(citation omitted). There may not even be a market, and thus no market value, where a 

close corporation is at issue. See id.; see also Raley, 621 S.W.3d at 237 (reasoning that a 

close corporation “is privately owned, and thus, the market is often irrelevant”) 

Here, the trial court accepted a valuation methodology from Mr. Lawyer that is 

considered acceptable in the financial community. Authoritative automotive publications 

endorse the blue-sky approach. And it is used in the “great majority” of ultra-high-end 

dealership transactions. The court also found the blue-sky method admissible and reliable. 

See Payne v. CSX Transp., Inc., 467 S.W.3d 413, 454 (Tenn. 2015) (explaining that the 

trial court has discretion “to function as a ‘gatekeeper’ with regard to the admissibility of 

expert testimony”). Critically, the method was based on fair value, not fair market value, 

which Mr. Lawyer distinguished. 

Still, Mr. Buckley claims that the trial court made three errors in its valuation of his 

shares. He argues that the normalization factors the court used “were arbitrary and not 

supported by the evidence.” He also contends that the court “diluted the impact of the 

tangible assets” by only accounting for half of them. And he argues that the court 

“improperly disregarded” the evidence of prior sales. 

The court derived its normalization factors from data from the National Auto 

Dealers Association. The compilation did not list profit margins for ultra-high-end 

dealerships. But the profit margins for import dealerships were 2.7% and 2.6% in 2015 

and 2016, respectively. And the profit margins for luxury dealerships were 2.8% and 2.7% 

for those years. According to Mr. Lawyer, ultra-high-end dealerships are “a step above 

that.” So, based on the data’s pattern, the court extrapolated the data to arrive at 

normalization factors of 2.9% and 2.8%. 

Mr. Buckley faults the court for disregarding Mr. Lawyer’s testimony as to the 

normalization factors. In Mr. Buckley’s view, that testimony was the only competent 

evidence of normalization. We disagree. The trial court gave credit to a data compilation 

that both experts testified was authoritative and reliable. And “the trier of fact is not bound 

to accept an expert witness’s testimony as true.” Roach v. Dixie Gas Co., 371 S.W.3d 127, 

150 (Tenn. Ct. App. 2011). Instead, it “may reject any expert testimony that it finds to be 

inconsistent with the credited evidence.” Id. The court did exactly that when it selected 

normalization factors lower than those to which Mr. Lawyer testified. 

As for the tangible assets, both experts agreed that, under the blue-sky method, 

adjusted net assets are appropriately added to the equation. But Mr. Womack testified that, 

under his income approach, adding adjusted net assets would be double counting. Despite 
9

accepting the blue-sky method, the court accounted for only half of TLC’s adjusted net 

assets. 

Although it may have been appropriate to account for the full adjusted net asset 

value under the blue-sky method, valuation “is as much art as science.” Athlon Sports

Commc’n, Inc., 549 S.W.3d at 123 (quoting In re Appraisal of Dole Food Co., 114 A.3d 

541, 553 n.7 (Del. Ch. 2014)). And a court’s calculation of fair value need only be 

equitable. See id. at 125. The trial court, as factfinder, was entrusted with resolving the 

parties’ “legitimate but competing expert opinions.” Brown v. Crown Equip. Corp., 181 

S.W.3d 268, 275 (Tenn. 2005). Under the abuse of discretion standard, we will not 

“substitute [our] judgment for that of the trial court.” Gonsewski v. Gonsewski, 350 S.W.3d 

99, 105 (Tenn. 2011). Splitting the difference on the question of tangible assets was an 

acceptable and equitable disposition. See Harmon, 594 S.W.3d at 305; Athlon Sports

Commc’n, Inc., 549 S.W.3d at 125. 

As for the evidence of prior sales, the trial court did not find Mr. Lawyer’s testimony 

in this regard reliable. We will not disturb the court’s credibility finding on this record. 

See Wells v. Tenn. Bd. of Regents, 9 S.W.3d 779, 783 (Tenn. 1999). The court was entitled 

to disregard the evidence. See England v. Burns Stone Co., 874 S.W.2d 32, 38 (Tenn. Ct. 

App. 1993) (explaining that “the trier of fact may place whatever weight it chooses upon 

[expert] testimony”).

Ultimately, the trial court used a valuation method that is generally acceptable in 

the financial community to equitably calculate Mr. Buckley’s interest in TLC. The court 

did not abuse its discretion.

D.

The court also did not abuse its discretion in denying prejudgment interest on the 

value of Mr. Buckley’s shares. Whether to award prejudgment interest “is within the sound 

discretion of the trial court.” Spencer v. A-1 Crane Serv., Inc., 880 S.W.2d 938, 944 (Tenn. 

1994). The court’s decision will not be disturbed on appeal “unless the record reveals a 

manifest and palpable abuse of discretion.” Otis v. Cambridge Mut. Fire Ins. Co., 850 

S.W.2d 439, 446 (Tenn. 1992). The court “must decide whether the award of prejudgment 

interest is fair, given the particular circumstances of the case.” Myint v. Allstate Ins. Co., 

970 S.W.2d 920, 927 (Tenn. 1998). 

The “uncertainty of either the existence or amount of an obligation does not mandate 

a denial of prejudgment interest.” Id. at 928 (emphasis omitted). But prejudgment interest 

“is not allowed as a matter of right on unliquidated damages claims.” Uhlhorn v. Keltner, 

723 S.W.2d 131, 138 (Tenn. Ct. App. 1986).
10

Here, as the court reasoned, Mr. Buckley’s claim for the redemption of his shares in 

TLC was for an uncertain, unliquidated amount. That alone makes the court’s denial of 

prejudgment interest appropriate. See Wasielewski v. K Mart Corp., 891 S.W.2d 916, 919 

(Tenn. Ct. App. 1994) (finding no abuse of discretion in a denial of prejudgment interest 

“where the plaintiff’s claim was for unliquidated damages sounding in tort”). But

Mr. Buckley also delayed in bringing his claim for the redemption of his shares, seeking 

only the dissolution of TLC until the time of trial. So the court properly found that an 

award of prejudgment interest would have been unfair under the circumstances. 

E.

After denying Mr. Buckley prejudgment interest, the trial court dismissed 

Mr. Buckley’s unjust enrichment claim as moot. The court reasoned that awarding him the 

fair value of his shares fully compensated him. Mr. Buckley’s claim was based on property 

that he searched for and located for TLC to purchase. Mr. Carlock instead purchased the 

property for himself and leased it to TLC. He did not compensate Mr. Buckley for locating 

the property. So Mr. Buckley claimed that Mr. Carlock was unjustly enriched by 

Mr. Buckley’s uncompensated efforts in locating the property. 

We agree with the trial court that awarding Mr. Buckley the fair value of his shares 

compensated him for Mr. Carlock’s conduct with respect to the property. In his complaint, 

Mr. Buckley claimed that Mr. Carlock’s purchase of the property for himself 

misappropriated a corporate opportunity of TLC. Mr. Buckley’s unjust enrichment claim 

was an alternative theory for the same conduct.

The trial court found that Mr. Carlock did, in fact, misappropriate a corporate 

opportunity by purchasing the property for himself. That misappropriation contributed to 

the court’s finding of shareholder oppression. Mr. Buckley was compensated for the 

oppression by receiving the fair value of his shares. To allow Mr. Buckley to proceed on 

his alternative theory of unjust enrichment would give rise to a double recovery, which is 

not permitted. See Shahrdar v. Global Hous., Inc., 983 S.W.2d 230, 238 (Tenn. Ct. App. 

1998) (“[I]f the damages claimed under each theory [of recovery] overlap, the [p]laintiff is 

only entitled to one recovery.”); Ford Motor Co. v. Taylor, 446 S.W.2d 521, 530 (Tenn. 

Ct. App. 1969) (“[C]are should be exercised to avoid double recoveries by allowing the 

same damage twice under different designations.”). 

 

F.

We lastly address the attorney’s fees awarded below and the parties’ requests for 

attorney’s fees on appeal, starting with the fees awarded to Mr. Buckley. A trial court 

enjoys “considerable discretion in determining a reasonable attorney’s fee.” First Peoples 

Bank of Tenn. v. Hill, 340 S.W.3d 398, 410 (Tenn. Ct. App. 2010). We will uphold the 
11

court’s decision absent an abuse of discretion. Wright ex rel. Wright v. Wright, 337 S.W.3d 

166, 176 (Tenn. 2011).

In determining a reasonable fee, trial courts consider a number of factors, including 

those listed in Rule 1.5 of the Tennessee Rules of Professional Conduct. See Lexon Ins. 

Co. v. Windhaven Shores, Inc., 601 S.W.3d 332, 342 (Tenn. Ct. App. 2019); TENN. SUP.

CT. R. 8, RPC 1.5. But “ultimately the reasonableness of the fee must depend upon the 

particular circumstances of the individual case.” Wright ex rel. Wright, 337 S.W.3d at 177 

(quoting White v. McBride, 937 S.W.2d 796, 800 (Tenn. 1996)). There is “no fixed 

mathematical rule” for determining a reasonable attorney’s fee. Killingsworth v. Ted 

Russell Ford, Inc., 104 S.W.3d 530, 534 (Tenn. Ct. App. 2002).

Here, the trial court awarded Mr. Buckley his attorney’s fees for the first phase of 

trial, but not the second, because Mr. Buckley was the prevailing party only as to the first 

phase. Mr. Buckley argues that he was the prevailing party as to the whole case. So he 

claims that he should have been awarded attorney’s fees for both phases. 

As Mr. Buckley points out, a party “need not attain complete success on the merits 

of a lawsuit in order to prevail.” Fannon v. City of LaFollette, 329 S.W.3d 418, 431 (Tenn. 

2010). Instead, a prevailing party “is one who has succeeded ‘on any significant issue in 

litigation which achieves some of the benefit . . . sought in bringing suit.’” Id. (quoting 

Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)). 

 

The trial court’s use of the term “prevailing party” and description of Mr. Buckley 

as “not the prevailing party” in connection with the second phase of trial was inartful. But 

we conclude that the court was not treating the case as having two “different prevailing 

parties.” Instead, we read the court’s analysis as taking into consideration the 

reasonableness of the fee requested and the results obtained. See Hensley, 461 U.S. at 440 

(recognizing that “where the plaintiff achieve[s] only limited success, the . . . court should 

award only that amount of fees that is reasonable in relation to the results obtained”); TENN.

SUP. CT. R. 8, RPC 1.5(a)(4) (providing that “the results obtained” are relevant to 

“determining the reasonableness of a fee”). 

 

In that light, the court did not abuse its discretion in the fees awarded to 

Mr. Buckley. Mr. Buckley sought $3,300,000 for the value of his shares in TLC. The 

court awarded him $1,745,500. Although Mr. Buckley was the prevailing party, he only 

had limited success on the valuation question. See Hensley, 461 U.S. at 440; TENN. SUP.

CT. R. 8, RPC 1.5(a)(4). Declining to award fees related to that phase of the litigation was 

not unreasonable. 

The court also properly determined that Mr. Carlock waived his issue as to 

attorney’s fees for his motion to compel. When the court granted the motion to compel, it 

took the issue of attorney’s fees under advisement. And it stated that it would resolve the 
12

issue in connection with a later fee-shifting determination. When the time to make that 

determination came, Mr. Carlock did not offer proof of the amount of his fees. Instead,

when Mr. Buckley moved for attorney’s fees, Mr. Carlock only opposed the request. The 

failure to raise the issue of attorney’s fees when the court was making its fee-shifting 

decision constitutes waiver. See TENN. R. APP. P. 36(a).

Mr. Buckley requests attorney’s fees on appeal under Tennessee Code Annotated 

§ 48-24-302(d). Because he did not prevail in his appeal, we decline to award him his fees. 

Mr. Carlock, who seeks an award of attorney’s fees as damages for a frivolous appeal, is 

not entitled to fees. See Tenn. Code Ann. § 27-1-122 (2017). The statute authorizing an 

award of damages for a frivolous appeal “must be interpreted and applied strictly so as to 

not discourage legitimate appeals.” Davis v. Gulf Ins. Grp., 546 S.W.2d 583, 586 (Tenn. 

1977). A frivolous appeal is one “utterly devoid of merit.” Combustion Eng’g, Inc. v. 

Kennedy, 562 S.W.2d 202, 205 (Tenn. 1978). Mr. Buckley’s appeal was not devoid of 

merit. He “made legitimate arguments and cited to relevant law and facts.” See Coolidge 

v. Keene, 614 S.W.3d 106, 120 (Tenn. Ct. App. 2020). Although his appeal was 

unsuccessful, it was not frivolous. See id.

III.

We affirm the trial court’s judgment. Mr. Carlock waived his challenge to the trial 

court holding a second phase of trial, as well as his claim for attorney’s fees for his motion 

to compel. In the first phase of trial, the court did not err in admitting the witness deposition 

into evidence. And, in the second phase, the court did not err in its calculation of the fair 

value of Mr. Buckley’s interest in TLC. The court also did not abuse its discretion in 

denying Mr. Buckley prejudgment interest or in awarding him attorney’s fees. Nor did the 

court err in dismissing his unjust enrichment claim. We deny the parties’ requests for 

attorney’s fees on appeal. 

 s/ W. Neal McBrayer 

W. NEAL MCBRAYER, JUDGE