### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE Assigned on

Briefs J uly 23, 2003
GOVINDASWAMY NAGARAJAN v. MICHAEL E. TERRY

Appeal from the Circuit Court for Davidson County No. 00C-1168 Barbara N. Haynes, Judge

No. M2001-01480-COA-R3-CV - Filed December 30, 2003

This appeal involves a dispute between a lawy er and his former client regarding unpaid fees. After the client sued the lawye r f or malprac tice in the Circuit Court for Davidson County, the lawy er counterclaimed

for unpaid fees. The trial court gr anted the lawyer’ s summary judgment motion and dismissed the malpractice claims. Thereafter, the trial court conducted a bench trial on the lawyer’s counter claim and awarded the lawy

er a $53,884.86 judgment. The former clie nt asser

ts on this appeal that the tr

ial court erre d by deny

ing his request for a continuance, g ranting a judgment by default on the question of liability, deny ing his request for a jury trial, and considering expert evidence regarding the rea sonableness of the lawyer’s fee without affording him the opportuni

ty for
cross-e xamination. We affir

m the judgment. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

W IL LI AM C. K OCH , J R ., J., delive red the o pinion of t

he court , in which B EN H. C ANT RELL , P.J., M.S., and W IL LI AM B. C AIN , J., joined.

RichardJ. Braun and Patricia E. Crotwell, Nashville , Tennes see, for the appe llant, Gov indaswa my Nagarajan.

St ep ha ni e H . G or e, Na sh vi ll e, Te nn es se e, fo r t he ap pe ll ee , M ic ha el E. Te rr y.
OPINION

I.
Govindas wamy

Nagarajan was terminated as an associate professor of phy sics at Tennessee StateUniversity (“TSU” ) in the fall of 1989. He retained David E. Mead and, on January 24, 1990, filed a Title VI

I ac ti on in the United States District Court for the Middle District of Tennessee agains tthe president of TSU and others seeking reinstatem ent, t enure, a

nd moneta

ry damage s. Approximat

ely three months later, he filed a secon d com plaint seeking essentially the same relief in th e C ha nc er y Co ur t f or Da vi ds on Co un ty.
At some point after these lawsuits were filed, Dr. Nag arajan, who i s a pp ar en tl y quite a demanding client, fired Mr. Mead and retained Walter T. Searcy, I II to represent

him in the federal TitleVII p roceeding. I

n May 1992, the cha

ncery c ourt notified Mr. Mead, who was still Dr.1 For reasons not appearing in the r ecord, an order reflecting the tri al court ’s decis ion a t the Sept ember 9, 1994

heari ng was not e nter ed until Augus t 5, 1996.

2 Th is order had been ent ered on M ay 12 , 199 7, and the rec ord conta ins no c lear ex plana tion for M r. Te rry’s delay in receiv ing it.
-2- Nagarajan’s lawyer of

record, that Dr. Nagar

ajan’s complaint would be dismissed for failure to prosecu te unless some a ction was take n. Mr. Mea

d informe d Dr. Nag arajan of this developmen

t. He also reminded Dr. Nagaraja n that he hadfiled this complaint as a tactic to preserve remedies and recommended

filing a voluntary nonsuit in the case . The notice of voluntary dismissal was filed on June 16, 1992, and an order of dismissal was entered

in the chancery

court on June 17, 1992. At the
sametime, Mr. Mead took steps to for mally withdraw as Dr . Nagarajan’s lawy er in the chancery court.

Mr. Searcy la

ter withdrew from

representing Dr. Nag arajan and was replaced by Thomas K. Bowers in August 1992. Mr. Bowers eventually withdrew , andin November 1993, Dr. Nagaraja n retained Michael E. Terr y to repres ent him in th

e pending Title VI I action that w as set fo

r trial in March1994. Mr. Terry

agreed to repr

es ent Dr. Nagarajan and r equested a $10,000 retainer to be paid in installments. Dr. Nagarajan also informed Mr. Ter ry that he had a

nother suit pending in the chancery court. After Mr. Terry

ascertained that thechancery court suit had been dismissed on June 17, 1992, Dr. Nagar

ajan insis ted that it

should be p laced ba

ck on the d

ocket desp ite Mr. Terry ’s advice that his remedies in the federal proceeding were adequate.

The trial in the United States District Court was later continued . On August 8, 1994, Mr. Te rr y, at Dr. Nagarajan’s insistence , requested the chancery court to restor e Dr . Nagarajan’s complaint to the docket and to set a trialdat e. T her eaf ter , Mr . Te rry t rie d Dr . Na gar aja n’s Tit le V II claim in the United States District Courtfor several weeks, and the District Court took the case under adviseme nt. At a hearing on September 9, 1994, the chancery court granted

the motion t

o reinsta te Dr. Nagar ajan’s s tate ca se to the docket and directed the parties to contact the calendar cler k to set a trial date. 1

The parties in the chancery court suit took

no action to advance the case beca use they wer

e awaiting the outcome of the August 1994 trial in the United States District Court. On June 5, 1997, the District C ourt file d an orde r and mem

orandum c oncluding

that TSU ha

d discriminated ag ainst Dr. Nagarajan in violation of Title VI I and that Dr. Nag arajan was entitled to reinstatement as a nontenuredprofessor and back pay . The court directed the parties to subm it their “a ccounting” of damages for the court’s consider ation.

On June 13, 199 7, appro ximately one wee k afte r the District Court filed its order and memorandum, Mr. Terry

received an order dismissing the pending chance ry court c ase for failure to prosecute. 2 When Mr. Terry a nd Dr. Nagarajan met

on June 16, 1997, Mr. Terry informed him that the chancery

court case had again bee

n dismissed and advisedhim that the suit was no longer necessary because he would o

btain suf ficient r elief in the federal proceeding in lig ht of the District Court’s June 5, 1997 memorandum. Nonetheless, Dr. Nagar ajan insis ted that a

nother effort sho

uld be made to reinstate his state lawsuit. Mr. Terry thereafter filed a motion to set aside the chance ry3 Be tween July 19 97 a nd A pril 19 99, the parties contin ued the hea ring on this mo tion sev en time s app arently

by agree men t. Und erstand ably, the y did no t desire to pre ss the ma tter bec ause the y were a tt empting to nego tiat e a settl ement of Dr. Nagaraj an’s federaldamage claim. The chancery court event uall y heard th e moti on on Apri l 30, 1999, and enter ed an order on May 14, 1999 decli ning t o set as ide th e May 12, 1997 order dismissi ng the complaint for fai lure to prosecute. As far as the record shows, no appeal was taken from thi s order.
-3- co urt’s May

12, 1997 or

der of di smissal. 3 On Dece mber 24, 1 997, the D istrict Court entered a n order awar ding Dr . Nagarajan (1) $356,310.22 in back pa y plus interest, (2) $61,037.35 in bac k Social Security

contribu tions, (3) $33,053.0 0 in back health insurance contributions, (4) $49,818.53 in back re tir eme nt contributions, (5) $10,800.00 in back longevity pay, and (6)540 hours of sick leave. In addition, the District Court directed D r. Nagarajan to submit his application for the pay ment of a ttorney ’s fees

. TSU appealed the District Court’s decision to the United States Court of Appeals for the Sixth Circuit. After the Court of Appeals referred the case to its mandatory settlement proce ss, the State and Dr. Nag arajan

engag ed in

lengthy settlement negotiations. Eventually , the State offered to withdraw

its appeal if Dr. Nagara

jan would accept

its offer to pay $525,000 in da mages. On June 2, 1998, Mr. Terry

recommended that Dr. Nagar ajan accept this offer. Dr. Nagarajan responded on June 5, 1998 ins tructing Mr. Terry to decline the State’s offer because he believed that he might somehow get a

bette r resul t on ap peal ev en tho ugh he had not appealed the District Court’s decision. On Jun e 8, 1998, Mr . Terry a dvised Dr. Nagarajan that his instructions were unreasonable and requ ested an opportunity to “discuss the future of [his] representation.” On June 15, 1998, Dr. Nagarajan

delivered a

letter to Mr. Terry ’s office terminating his employ ment. In August 1998, Dr. Nagarajan

hired Richard H. Batson II to represent him in the pending federal appe al and also directed him to unde

rtake to reinstat e the sta te complaint that had been dismissedby the chanc ery cour t on May 5, 1997.

On July 19, 1999, the United States Court of Appeals affirmed

the District Court’s judgment for Dr. Nagarajan. On March 20, 2000, t

he Distri ct Court a

warded Dr. Nag arajan

$167,460. 00 in at to rn eys fees relating to h is Title VII case. In April 2000, following negotiations among the five lawyerswho had represented Dr. Nag arajan in the federal proceedings, Mr. Terry r e ceived $83,000.00 for his work in the case. Two months later, he rece ived an additional $15,742.49.

On April 27, 2 000, Dr. N agara jan filed a pro se malpracticecomplain

t again st Mr. Ter

ry in the Circuit Courtfor Davidson Count y seeking $ 500,000.0 0 in damage s for his f ailure to reinstat e his chanc ery court c ompl aint a gainst TSU an d oth ers. M r. Terr y respond ed by denying th e malpracticeclaim and by

counterclaiming for unpaid attorney ’s fees. In Marc h 2001, Mr. Terry

filed
a motion for summary judgme nt seeking di sm issal of Dr. Nagarajan’s malpra ctice claim on the ground that it was not timely filed. The trial court g rantedthe summary judgme nt in May 2001 and suggested that the p arties e

ither med iate the r emaining fee dispute or sub mit it to the N ashville Bar Association’s fee dispute committee.

When attempts to resolve the fee dispute proved fruitless, Mr. Terry requested the trial court to set the case on the non-jury docket. After receiving a September 2001 trial date, Dr. Nagarajan retained Ja mes G. S tra nch , III t o represent him. The trial was thereafter postponed for another attempt at mediation. After this attempt failed, the trial was set for September 2002. Thetrial was again postponed until December 9, 2002. On the day

of trial, the court learned that Dr. Nag arajan4 Mr. Braun had anot her ma tt er i n th e Unit ed Sta tes Dist ric t Cour t f

or th e Middle Di strict

of Tenness ee al ready set forFebrua ry 10, 2003.

5 Jessee v. American Gen. Li fe and Acc . Ins . Co. , No. E200 2-00182 -COA-R3 -CV, 2003 W L 1657 77, *5 (Tenn. Ct. App. Jan. 24, 2003 ) perm. app. dismis sed (Te nn. Ap ril 24, 2 003 ); Co akley v. Da niels , 840 S.W .2d 367, 370 (Tenn. Ct. App. 1992 ).
-4- hadsued one of Mr. Stranch’s employee s and, therefore, that Mr. Stranch could no longe r represent Dr. Nagarajan. Rather than proc eeding to trial without a lawyer, Dr. Nagarajan agreed that the trial would be continueduntil February 10, 2003, andthat he would inform the trial court on or before January 17, 2003 either that he had retained a new lawy er to repr esent him or that he would be procee ding pro

se at the Februa ry 10, 2003 tr

ial.

On February

7, 2003, Dr. Nagarajan filed a motion for a continuance informing the trial court that he hadfound a lawye

r, Richard J. Braun, who would represent him but only

if the tri al was ag ain continued. 4 Dr. Nagarajan appeared without a lawy

er on February

10, 2003. The trial court denied Dr. Nagar

ajan’s motion for a

fourth c ontinuanc e and g ranted M r. Terr y a default judgment on the issue of Dr. Nagarajan’s liability for additional attorney’s f ees. The trial court also set a hearing for February 19, 2003 on the issue of damages. Dr

. Nagar ajan’s la wy er soug

ht unsucc essfully

to resche dulethe February

19, 2003 hearing. Following a benc h trial on February

19, 2003, during which Dr. Nagarajan dec lined to offer any proof regarding

Mr. Terr y’ s claim fo

r attorne y’ s fees, the trial co ur t e nt er ed an or de r o n F eb ru ar y 27 , 2 00 3, aw ar di ng Mr . T er ry a $53,884.8 6 judgme nt. Dr. Nagarajan therea

fter filed a timely notice

of appeal.

II. T HE D ENIAL OF D R . N AGARAJAN ’ S M OTION FOR C ONTINUAN CE
Dr. Nagarajan as s erts that the trial court erred by denying his February

7, 2003 motion for
a continua nce. He asserts t hat the tr ia l court should have g

ranted t he motion b ecause

his newly retained lawyer w ould have been available to try the case onthe day af

ter it had been set. We have determined that the trial c ourt did not abuse itsdiscreti on by further delay ing the t rial.

Trial courts hav e bro ad discretion over the course and conduct of tria ls. State v. King , 40 S.W.3d 442, 449 (Tenn. 200 1); Justice v. S ovran Bank , 918 S.W.2d 428, 429-30 (Tenn. Ct. App. 1995); Marress v. Caro lina Dire ct Furniture, Inc. , 785 S.W.2d 121, 129 (Tenn. Ct. App. 1989). This discretion extends to decisions regarding motions for a continuance. Blake v. Plus Mark, Inc. , 952 S.W.2d 413, 415 (Tenn. 1997). Accordingly , the appellate courts should not second guess a trial court’s decision

on a motion

for a co ntinuanc e unless t he reco rd, revi ewed asa

whole, shows a clear abuse of discretion or that a clear prejudicial err or has beencommitted. Blake v. Plus Mark, Inc. , 952 S.W.2d at 415; Owens v . Bristol Motor Speedway, Inc. , 77 S.W.3d 771, 775 (Tenn. Ct. App. 2001); Trinity Indus., Inc. v. McKinnon Bridge Co. , 77 S.W.3d 159, 175 (Tenn. Ct. App. 2001).

Decisions regarding continuance s are fact-specific. Accordingly , motions for a continuance should be viewed in the co ntext of all the circumstances existing when the motion is filed. Among the factors that courts consider are: (1) the le ngth o f tim e the p roceed ing has been p endin g, 5 (2) the6 Evers v. She rman , No. 88- 208-II , 1988 WL 132687, *4 (Tenn . Ct . App. Dec. 14, 1988) (No Tenn. R. App.

P. 1 1 ap plicatio n filed); Hunt v. Hoppe , 22 T enn. A pp. 5 40, 5 45, 1 24 S .W .2d 3 06, 3 09 ( 193 8).
-5- reasonfor the continuance, (3) the diligence of the party seeking the continuance, 6 and (4) the prejudice to the requesting party if the continuance is not granted. By the time Dr. Nagarajan filed his motion for continuanc e on February 7, 2003, the case had been pending for almost three y ears. It had bee

n first set for

trial in September 2001 but had been continuedthree times. The third continuance was required because Dr. Nagarajan crea ted a conflict withhis own lawyer a

fter he sued one of his lawyer’s employees. When the trial c ourt granted the third continua

nce, it r eached an explicit

understanding with Dr. Nagar ajan tha t he would

have until January 17, 2003 to

notify the cour t that he h ad reta

ined anot her lawy er and th at if he d

id not reta in another lawyer, the

trial would proce ed on Februar y 10, 2003, and that Dr. Na garajan would be required to represent himself. These facts support a conclusion that Dr. Nagarajan w as not pursuing his case with the sort of diligence that would have merited a nother continuance.

The recor d also pro vides a basis for concluding that the trial court’s re fusal to grant Dr. Nagarajan

a cont inuance did not materially pr ejudice his case with regard to both liability and dama ges. The facts rega rding Mr . Terry ’s repr

esentat ion of Dr. Nagar

ajan we re esse ntially undisputed andhad been set out in great detail in the parties’ statemen

ts of undis puted mat

erial fa cts. The parties’ differences involved the leg al conclusions to be drawn from these f acts. Th e only material factual dispute regarded the ma nner in which Mr. Terry had calculat ed the additional attorney’s f

ees he was claiming. The trial court’saction on

Februa ry 10, 2003 di d not deprive Dr. N agarajan

of his opportunity to cross-examine Mr. Terr y on his fee c alculation or to intro duc e evidence on this question because it continued the hearingto Febru ary 19, 2003, t

o enable the parties to address that question. Mr. Terry te stified and was subject to cross-examination at that hearin g, and Dr. Nagarajan c ould have presented any other evidence on that issue he desired.

III. T HE D EFAULT J UDGMENT ON M R . T ERRY ’ S C OUN TERC LAIM
Dr. Nagarajan also asserts that the trial c ourt erre d on Fe bruary 10, 2003, by granting Mr. Terry a default judgme

nt on the is sue of Dr . Naga rajan’ s liability

for additional attorney ’s fees. He insists that he informed

the trial court on F

ebruar y 10 , 2003, tha

t he was r eady to proceed without counsel and, ther

efore, the trial

court shouldnot have s ua sponte given Mr . Terry

a default judgme

nt. We find no m

erit in thi s argum

ent for tw o reason s.
The first reason is that

the record does not support Dr. Nagarajan’s self-se rving assertion that he informed the trial court during the hearing in chambers onFebruary

10, 2003 that he was prepared to proceeding with the trial without a lawy er. The trial court stated

explicitly both in its orders and
on the record of the February 19, 2003 hearing tha

t Dr. Nagarajan had re

presented to the court on February 10, 2003 that he was not prepared to proceed with the trial notwithstanding the December 18, 2002 order. Appealing parties have an obliga tion to provide appella

te court s with an a

ppellate record containing a full, accurate, and c omplete account of what transpired at trial with reg ard tothe issues raised on appeal. Tenn. R. Ap p. P. 24(a). Dr. Nagarajan has not provided a record of the7 Even though these proceedings were held in chambers, Dr. Nagarajan could have used hi s court reporter had he simply re que ste d that t he proceedings be transcribed. Because Dr. Nagarajan did no t request t hat the proceedings in chamber s be t

rans cri bed, h e al one i s re spons ibl e for the absen ce of

a tr ansc ript

of the se pr oceedi ngs f

rom th e recor d.

8 Had the de fault jud gme nt reso lved a ll th e cl aim s betwe en the p arties, it wo uld ha ve be en final an d imm ediate ly appealable. First U nion Na t’l Ba nk v. A berc rom bie , No . M2 001 -0 137 9- COA- R3- CV, 2003 W L 2225 1347, at *2 (Tenn. Ct. Ap p. O ct. 2, 20 03) (No Te nn. R. A pp. P . 11 a pplic ation filed ).
-6- February 10, 2003 pr

oceedings. 7 In the absence of such a record, we will accredit a trial court’s version o f what tr

anspire d at a hea

ring ove r that of one of the

parties.

The second r

eason is t hat Dr. N agara

jan neve r reque sted the tr

ial cour t to set aside the default judgment on the question of liability. The decision to grant the d efault judgment was not immediate

ly appeala ble beca use it wasnot final, 8 and Dr. Nagarajan could hav e asked t

he court to set the default judgment aside at the Februa ry 19, 2003 he aring. This cour t gener ally decline s to grant relief on appea l to litigant s who wer

e respon sible for

or who fa iled to tak e reaso nably

availab le action to prevent the harmful effect of an e rror. Tenn. R. App. P. 36(a). In light of the conduct of Dr. Nagarajan and his lawy er after February

10, 2003, we find that Dr. Nagarajan is in no position now to tak

e issue wi th the def ault judgment.
IV. D R . N AGARAJAN ’ S R IGHT T O A J URY T RIAL
Dr. Nagarajan arg

ues that he was denied his right to a jury trial on Mr. Terry ’s counter claim. He asserts that

he had a right to a jury trial on th

e counte rclaim because

he reque sted a jur

y f or his malpracticeclaim. While Dr. Nagarajan’s g eneral demand for a jur y su rvived th e dismissa

l of his complain t, we have determined that Dr. Nagarajan and his lawyer

waived his demand for a jury by their ac quiesce

nce in pla cing the case on t he trial c ourt’s no n-jury

docket.

A.

Dr. Nagaraja n’s leg al malpra ctice c omplaint c ontained a demand

for a jur y “to hear t

his cause.” Mr. Terry r

espondedby filing an a

nswer and a counterclaim for unpaid attorne y’s fee s. Mr. Terry did not request a jury

trial on his counterclaim. Dr. Nagaraja n filed a reply

to Mr. Terry’ s counter claim tha t did not inc lude a de

mand for a jury trial on Mr . Terry ’s counte rclaim.

The only remaining

issue to be resolved after the trial court granted Mr. Terry ’s motion for summary judgmen t on May 21, 2001, w as his claim for additional attorney ’s fees. OnJuly 24, 2001, the trial court entered an order setting the case for trial on

the “non-jury

docket” on September 26, 2001. When the court continued the trial to enable the parties to mediate their dispute, its order reiterated that the case would “be

placed b ack on the

non-jury docket”if mediat

ion faile d. The ca se came on to be triedon December 9, 2002, without a jury but was continued until February 10, 2003, because Dr. Nagar

ajan had forced his lawy

er to withdraw.9 The appellate record does not reveal precis ely wh en the re newed demand was made. In h is Februa ry 18, 2003 memorand um supporting the renewed demand for a jur y, Dr. Nagar ajan “requ est s t hat thi s Court reve rse is [si c] pri or ruli ng and rei nstate thi s cause on the ju ry docket .”

10 9 C HARLES A. W RIGHT & A RTHUR K. M I LL ER , F ED ERA L P RACT I CE A ND P ROCEDURE § 2318, at 133 (2d ed. 199 5) (“F ED ERA L P RACTICE & P ROCEDURE ”).

11 Th is consent must take t he form of either a wri tten st ipulati on by the parti es or t hei r lawy ers or by oral stipulat ion ma de in open cour

t an d ent ered i n th e recor d. Tenn. R. Civ . P. 39.01.

-7- At some pointapparently f

ollowing December 9, 2002, Dr. Nag arajan renewed his demand for a jury trial, and the

trial court ap

parentl y denied it

. 9 Inexplicably , however, his lawy er did not orally renew his demand for a jury when the trial began on Februa ry 19, 2003. Instead, his lawy er announced that “we’re prepa red to proceed in whatever way your Honor wishes to proc eed.” The first mention of

Dr. Nagarajan’s rene

wed demand for a jury

was made after the plaintiff had closed its case. After consulting with his client, Dr. Nagar ajan’s lawyer a

nnounced that “we believe that the Court is in error on the right to a jury” and, therefore, that “Mr. Naga rajan will not

be testifying today.” B.

T HE E FFECTIVENE SS OF D R . N AGARAJAN ’ S J URY D EMAND
The ri gh t t o a ju ry trial gu arante ed by Tenn. Con st. art. I , § 6 is one o f the most v aluable personal rights protected by the Constitution of Tennessee. Harbison v. Briggs Bros. Paint Mfg. Co. , 209 Tenn. 534, 540, 354 S.W.2d 464, 467 (1962 ); State Bank v. Cooper , 10 Tenn. (2 Yer.) 599, 604 (1831). In civil cas es, ho wever, the ri ght is not s elf-en forci ng. 10 A party who de sires a jury trial must file and serve a timely demand f

or a jury in accordance with Tenn. R. Civ. P. 38.02. Parties who fail to comply with Tenn. R. Ci v. P. 38 have not properly r equested a jury

trial and will be deemed t o have wa

ived thei r right to a jury

trial. Tenn. R. Civ. P. 38.05; Gribble v. Buckner , 730 S.W.2d 630, 633 (Tenn. Ct. App. 1986). Tenn. R. Civ. P. 38.02 provides that

A ny party may

demand a trial by jur

y of any issue triable o f right by jury by demanding the sa

me in any pleading specified in Rule 7.01 or by endorsing

the demand upon such pleading when it is filed,
or by written demand f

iled with the clerk, w ith notice to all par ties, within fifteen (15) day s after th e service of the last pleading raising an issue o f fact.

Parties request

ing a jur y ma y sp ecif y the issues to b e tried by the jury , but if they do not specify particular issues, their demand will be deemed to include all issues triable by a jury . Tenn. R. Civ. P. 38.04. Once a demand for a jury trial has been made, it cannot be withdrawn without the consent of all the pa rties as t o whom the issues have been joined. Tenn. R. Civ. P. 38.05. 11 Tr ia l c ou rt s m ay, in their disc retion, order a trial by jury notwithstanding a pa rty’s failure

to demand a jury in the interest of justice . Tenn. R. Civ. P. 39.02 & cmt.12 Becau se o f t he s imi lar

ities bet ween Tenn. R. Ci v. P. 38 and F ed. R. Civ. P. 38, the decisi ons of th e federal
cou rts construing Fed. R. Civ . P. 38 pro vi de us wi th hel pfu l g ui danc e i n our in ter pret ati on an d appl ica ti on of Tenn. R. Civ. P. 38. Decis ions of the fede ral co urts constr uing an alogous f

ederal rules of

procedure can pr ovide hel pful g uidance in int erpreti ng our own rules. Frazier v. Eas t Tenn. Bapti st Hosp. , 55 S .W .3d 9 25, 9 28 ( Te nn. 20 01) ; Ha rris v. Chern , 33 S.W.3d 741, 745 n.2 (T enn. 2 000 ); Byr d v. H all , 847 S.W .2d 2 08, 2 11 n . 2 (T enn. 1 993 ); Pacifi c Eastern Corp. v. Gulf Li fe Hol ding Co. , 902 S.W .2d 946, 952 n.7 (Tenn. Ct. App. 1995 ).

13 Comm entators have advised that careful practiti oners can avoid the predicament faci ng Dr. Nagarajan in this case by fil ing a ti mely demand f or a ju ry f

oll owing the fi li ng of

a count ercl aim. 5 J AMES W. M OORE ET AL ., M OORE ’ S F ED ERA L P RACTICE ¶ 38.39[2], at 38-369 (2d ed 1995).

14 Another court

reach ed a different

result on si milar fact s because the plaintiff’s jury d ema nd wa s limited to “each and ev ery count

of th e complaint .” Mt. Everest Ski Shops, Inc. v. Ski Barn, Inc. , 736 F. Sup p. 53 1, 53 2 (D . Vt. 198 9).

15 A lawye r’s clai ms for un paid att orney’ s fees ar e co mpulsory counter clai ms in a c lien t’s legal malpract ice action. Firs t Am. Tr ust Co. v. Frankl in-Murr ay Dev. Co. , 59 S.W.3d 135, 139-40 (Te nn. Ct. A pp. 2 001 ); see als o Starks v. Br owning , 20 S.W .3d 645, 652 -53 (Tenn. Ct. App. 199 9).

16 Crawfor

d v. Logan , 656 S.W .2d 360, 364 -65 (Tenn. 198 3).
-8- A timely, gene

ral demand for a jury

that does not

specify issues is reg arded as a demand for
a jury on all issues in the case. 9 F EDERA L P RACTICE & P ROCEDURE § 2318, at 136; Allison v. Citgo Petroleum Corp. , 151 F.3d 402, 423 ( 5thCir. 1998). 12 Plaintiffs who have included a general jury demandin their c omplaint a re entitl ed to a jur

y on all triab le issu es pert inent to the ir compla int, including issues raised in counterclaims. Horwitz v. Alloy Automotive Co. , 677 F. Supp. 564, 566 (N.D. Ill. 1988) (once a

general jury

demand has been asserted, a second demand need not be made after the filing o f a count

erclaim ); Ciaglo v. Fanning , 300 N.W.2d 436, 438 (Mich. Ct. App. 1980). 13 Thus, plaintiffs who have included a general jury

demand in their complaint are entitled to a jury on the triable i ssues ra

ised in a d efenda nt’s coun terclaim even if

their co mplaint is d

ismissed. I

n a case striking ly similar to t

his one, the Supreme Court of Ohio held that a client who included a ge neral jury demand in the malpractice complaint against her former lawy er was entitled to a jury

trial on the la wyer’ s counterclaim for unpaid attorney ’s fees after her malpractice complaint ha d bee n dismissed. Soler v. Evans, St. Clair & Kelsey , 763 N.E.2d 1169, 1175 (Ohio 2002). 14

The principles applied by the Supre me Court of Ohio in Soler v. Evan, St. Clair & Kelsey are applica ble to this case. Dr. Nagarajan included a general jury demandin his complaint. Mr. Terry’ s counter claim for attorney ’s fees was a compulsory counter claim b ecause

it arose o

ut of the s ame transaction that gave rise to Dr. Naga rajan’s complaint. Tenn. R. Civ. P. 13.01. 15 The triable issues in the compl aint a

nd counterclaim were inextricably intertwined because Mr. Terry could have potentia lly forfeited all or part of his fee if he had committed

malpractice and

if his malpractice had damaged Dr. Nagarajan. 16 Accordingly , Dr. Nagarajan’s g eneral demand for a jury in his complaint
su rv iv ed th e d is mi ss al of

hi s m al pr ac ti ce co mp la in t a ga in st Mr . T er ry.

C. D R . N AGARAJAN ’ S W AIVER O F H IS R IGHT T O A J URY T RIAL Determining that Dr. Nagarajan’s jury demand survived the dismissal of his complaint does notend our inquiry. Dr. N agarajan would nothave been entitled to a jury at either the February

10-9-

or 19, 20 03 hea rings if he effectively waived his right to a jury sometime between the filing of his complaint and t he da te of the tr ial. We have de

termined that the r ecord c learly

demonstrates that Dr. Nagar ajan wa ived his r ight to a jury trial. Jurydemands are not

irr evocab le. L

itigantswho have

request ed a jury may subseque ntly waive their right to a jury with the “consent of all pa rties as to whom issues have been joined.” Tenn. R. Civ. P. 38. 05. This wa iver may be explicit

or by implication. Russell v . Hacke tt , 190 Tenn. 381, 383, 230 S.W.2d 191, 192 (1950); B eal v. Doe , 987 S.W.2d 41, 47 (Tenn. Ct. App. 1998); Davisv. Ballard

, 946 S.W.2d 816, 817 (Tenn. Ct. App. 1996). Courts, however, should indulge in every reasonable presumption against waiver of a jury demand in a civ il case. Aetna Ins. Co. v. Kennedy ex rel. B ogash , 301 U.S. 389, 393, 57 S. Ct. 809, 812 (1937 ). A waiver should not be inferred without re asonably

clear evidence of an intent to waive. L & R Realty v

. Connecticut Nat’l Bank , 715 A.2d 748, 753 (Conn. 1998). Therefore, when doubt exists, a co

urt should

not find that
a party who requ ested a j ury

waived it s right. Garcia-Ayala v. Lederle Parenterals, Inc. , 212 F.3d 638, 645 (1st Cir . 2000); Lovelace v. Dall , 820 F.2d 223, 227-28 ( 7th Cir. 1987 ); American Standard, Inc. v. Crane Co. , 60 F.R.D. 35, 42-43 (S.D.N.Y. 1973).

The record reflects that Dr. Nag arajan explicitly waived his rig htto a jury trial on Mr. Ter ry’s counter claim. Following the entry of the summary judgment dismissing Dr. Nagarajan’sclaim, Mr. Terry fi led a motion requesting a non-jury trial. The record contains no indication that Dr. Nagarajan, who was r

eprese nting him self at t

he time, objected to the reque st for a n on-jury trial. Ac co rd in gl y, on Ju ly 2 4 , 2001, the trial court filed an order setting the ca se for a non-jury trial on September

26, 2001. Thereafter, Dr. Nag arajan retained counsel, and the par ties agreed to continue the trial to enga ge in mediation. The October 18, 2001 agreed order continuing the trial directs the parties to “inform

the Court whether or not this matter should be placed back on the non-jury docket” should mediation fail. The entry of the October 18, 2001 order acknowledging that the case was on the court’s non-jury doc

ket supplies clear evidence that all the parties had cons ented at that point t

o try the case without a jury

. Sewell v. Jefferson County Fi scal Court, 863 F.2d 461, 464-65 (6th Cir. 1988) (f ailure to obj ect to an order scheduling a ca se on the non-jury doc ket implies consent to a non-jury trial).

As fa r a s t he re co rd sh ow s, no ot he r m en ti on of a j ur y was made

prio r to the February

10, 2003 trial when the trial court granted Mr. Terry a default judgment with regard to Dr. Nag arajan’s liability for additional attorney ’s fees. The first mention of a jury trial came in a brief filed with the court on February

18, 2003, in support of Dr. Nagara jan’s “r en ew ed de ma nd ” for a j ur y. Notwithstanding this brief, neither Dr. Nagara jan norhis lawyer re

quested a jury a

t the beginning of the proceeding on Februa ry 19, 2003. The subject of a jury wa s not mentioned u nt il Mr. Terry closed his case.

There are substantial questions about the eff icacy and timeliness of Dr. Nagarajan’s r enewed request for a jury. H owever, even if we assume that his request wa s timel y, Dr. Nag arajan again waivedhis right to a jury tria l when neither he nor his lawyer requested a jury at the beginning of the17 Allowing a non -jury trial to p roce ed w ithout o bjec tion is sufficien t to imply a party ’s cons ent t o a tri al without

a jury. Ru ssell v. H ack ett , 190 Te nn. at 38 4, 23 0 S.W .2d a t 192 ; see al so Front v. Lane , 443 N.E .2d 9 5, 97 (Ind. C t. App. 198 2).

18 Th ere is likew ise no in dicatio n that the p arties attem pted to de pos e M r. Ray.
-10- hearing on February

19, 2003. 17 Clearly, broac hing the subject of a jury

after the close of

Mr. Terry ’s
case was untimely, and the trial c ourt cannot be faulted for declining to start the proceedings anew and grant Dr. Naga

rajan a jury

trial pursuant to Tenn. R. Civ. P. 39.02.

V. C ONSIDERATION OF THE A FFIDAVIT OF M R . T ERRY ’ S E XPERT
As a final matter, Dr. Nagara jan takes issue with the trial court’s dec ision to admit and consider the affidavit of Charles R. Ray regarding the rea sonableness of Mr. Terry ’s c laim for attorney’sfees. He asse

rts that the trial c ourt’s decision to a dmit the af

fidavit de prived him of his opportuni ty to cr oss-e xamine Mr. Ra y. We have determined that the trial court erred by admitting Mr. Ray’s aff

idavit into evidence ov er Dr. Nagar ajan’s o bjection . Howeve

r, we ha ve also determinedthat the a

dmission of

the aff idavit wa s harmles s becaus e it did notaffec t the judgment.

In an agree d schedu li ng orde r filed on May 14, 2002, t

he trial c ourt directed the parties t o disclose their expert witness and exchange their expert witness statements by August 1, 2002. On August 22, 2002, Mr. Terry

disclose d that he intended t o call Charles R . Ray

as an expe

rt witnes s andprovided a summary of Mr. Ray’s testimony

regarding Mr. Terry ’s entitle ment to an additional fee, the reasonableness of his requested fee , and the value of his services to Dr. Nagarajan. On the
sameday, Dr. Nagarajan filed a motion in limine seeking to exclude Mr. Ray ’s testimo ny b ecause it was (1) irrelevant, (2) contrary to the decision of the United St ate s Di st ric t C our t i n t he T it le V II procee ding, and (3) “[c]onf using, [m]is leading , and a [w]a ste of the [c]ourt’s time.” De spite extensive briefing and supplemental briefing by the par ties, the record contains no indication that the trial court ever ruled on the motion in limine. 18

On Febr uary 18, 2003, t

he day before the fina l hearin g, Mr. Terry

filed two affida vits with the court –

his affidavit and that of Mr. Ray . Mr. Ray’s af fidavit stated that

Mr. Terry

was entitled to $113,989.86 andthat Mr. Terry ’s request for $53,884.86 was “very

favorable” to Dr. Naga

rajan. After he test ified at the February 19, 2003 hearing, Mr. Terry tendered Mr. Ray ’s affidavit to the court explaining that Mr. Ray would have been available to testify

had the case been

tried either

on December

9, 2002 or February

10, 2003, but that he was unavailable to testify on February

19, 2003. Dr. Nagarajan’s lawy

er ob jected to the aff idavit on th

e grou nd that it w ould depr

ive him of h

is opportuni ty to cross- examine Mr . Ray . The tr ial court overruled the objection and admitted the affida vit.

As a general

matter, evidence introduced at trial takes the form of testimony of live witnesses who are subject to cross-examination, depositions of unavailable witnesses who have been av ailable for cross-examination, andproperly a uthenticated exhibits. The TennesseeRules of Civil Procedure do not provide for the use of affidavits as evidence at trial except by consent. Botts v. Bo tts , Obion Eq. No. 6, 1990 WL 183742, at *7 (Tenn. Ct. App. Nov. 29, 1990) perm. app. denied (Tenn. May 6, 1991); Turner

v. Turner , 776 S.W.2d 88, 90 (Tenn. Ct. App. 1988). With regard to requests for-11-

attorney’sfees, however, it has become c ommonplac e to use a ffidavit s and counter-affidavits to try issues regarding the

reasonableness of a requested fee. In these circumstanc es, the parties either have not obj ected to the use of affidavits because they have had sufficient opportunity to pre pare an d submit counter-affidavits or the affiant has been reasonably

available for cross-examination. Fain
v. Fain , No. M1999-02261-COA-R3-CV, 2000 WL 1879548, at *6 (Tenn. Ct. App. Dec. 29, 2000) (No Tenn. R. A

pp. P. 11 ap

plication filed) ( affida

vit admissi

ble because

the opposing par

ty d idnot request cross-e xamination) ; Sommerv ille v. So mmerville , No. 01A0 1-97 10-CV -005 59, 19 98 WL 792050, at *5 (Tenn. Ct. App. Nov. 16, 1998) (No Tenn. R. App. P. 11 application filed) (opposing party had an opportunity for

cross-e xamination) ; Jones v. Mankin , No. 88-263-II , 1989 WL 44924, at *10 (Ten n. Ct. App. May

5, 1989) ( No Tenn. R. App. P. 11 a

pplicatio n filed) ( affida

vit admissi

ble where opposing party

did not request opportunity to put on proof or to depose the affiant).

It is, no doubt, true that

Dr. Nagarajan had known since August 2002 that Mr. Terry intended to use Mr. Ray’s testimony to supporthis claim for

attorne y’ s fees. H owever , it is also t rue that until February 18, 2003, Dr. Nagarajan rea sonably understood that Mr. Ray would be testifying

in person and, therefore, subject to cross-examination. Thus, Dr. Nag arajan and his lawyer could reasona bly have de ci de d t o a tt em pt to un de rm in e M r. Ra y’s te st im on y b y c ross-examination rather than by generating

counter-affidavits. When they discovered on the day

before trial that Mr. Ray

would not be testify ing, the y di d not have

reasona ble time eithe

r to depos e him or to

obtain counter-a

ffidavit s. Therefore, the trial court erred by admitting Mr. Ray ’s affidavit over Dr. Naga rajan’s objection.

Parties are not entitled to a reversal of a

judgment based on an error that, more proba bly than not, did not af

fect the outcome o f the tria

l. Tenn. R. App. P. 36(b). Thus, errors either in admitting
or excluding ev id en ce ma y b e found to be harmless. Union Plan ters Nat’l B ank v. Is land Mgmt. Auth., Inc. , 43 S.W.3d 498, 5 00-01 (T enn. Ct. App. 2000). We have determined that the trial court’s
erroneous admission of Mr. Ray’s a ffidavit did not affect its judgment. Mr. Ray opined that Mr. Terry was entitled to $113,989.86 in additional attorney’s f ees. However, the trialcourt awarded Mr. Terry $53,884.86 – pre cisely

th e amount he requested. Accordingly , Mr. Ray’s opinion did not influence the trial court’s decision.

VI.

We affirm t

he judg ment and r

emand the

case to the trial court for fur ther p roceed ings consistent with this opinion. We tax the costs of this appeal to Govindaswamy Naga rajan for which execution, if necessary , may issue.

_____________________________ WI LL IA M C. K OCH , JR. , J.