# FILED
September 8, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE SUPREME COUR T OF TENNESSEE AT NASHVILLE

FOR PUBLICA

TION Filed: September 8, 1998

ANN C. SHO RT, ) ) PETITIONER, ) ) v. ) NO. 01S01-9704-OT-00078 ) CHARLES E. FERRELL, ) in his official capacity as the ) Administrative Director of the Courts, ) ) RESPONDEN T. )

FOR PETITIONER: FOR RESPON DENT: ANN C. SHORT JOHN A. DAY KNOXVILLE NASHVILLE



# O P I N I O N

REMANDED HOLDER, J.2 OPINION

This cause comes to us on a common law writ of certiorari

to review a fee dispute in a post-conviction proceeding involving an indigent defendant, David McNish. The issue is w hether an attorney appointed to review the record s in a post-conviction procee ding may exceed the max imum allowable rates for attorneys representing indigent defendants. W e hold that: (1) Tenn. Sup. Ct. R. 13 (1996) required an attor ney performing servi ces as an "expert" to obtain prior approval for an hourly rate in excess of the hourly rate provided for attorneys in Rule 13; and (2) the trial court should have expl icitly set forth the appr oved "expert" hourly rate in its order if such rate was intended to exceed the normal hourly rate provi ded for attorneys in Rule 13

.
The petitioner, Ann C. Short, w as appointed to serve as an "e xpert" to review trial c

ounsel's performance in a case where a defendant sought postconviction relief. The or der approved $ 2,500.00 for petitioner's services. The trial court's order, however, did not set for th an hourly rate for w

hich the petitioner could bill the

State. The petitioner also di d not seek prior approval from the Administrative Office of the C ourts ("AOC") for an hourly rate exceeding the hourly rate permitted by Rule 13 for attorneys. At the time of the petition er's servi ces, Ru le 13 pr

ovided for a rat e of $ 40.0

0 an hour

for an at torney 's out-ofcourt services and $ 50.00 an hour for in-court services.
The petitioner submitted two separate bills to the AOC for her services. The petitioner initially

billed the State, in December of 1996, for 34.50 hours at a rate of $ 150.00 an hour for a total of $ 5,175. 00. The AOC paid the petitioner $ 1,380.00, which equated to 34.50 hours at the out-of-court hour ly rate of $ 40.00. In March of 1997, the petiti oner billed the State an additi onal1 Tenn. Sup. R. 13 § 2( B) provides: A two step procedur

e must be followed in obtai ning author izati on for compensation in a capi tal case. First, the appropri ate court, trial or appell ate, shall det

ermine reasonable compensati on to be all owed the attorney based upon the servi ces rendered in the court. Second, the cl aim will be submitted to the Administrative Director of the Courts for final approval by the Administrative Director of

the Courts and t he Chief Justi ce. In capital cases, the court may determ ine that investigative or expert services, or other si milar servi ces are necessary to ensure the protecti on of the constitu tionalrights of a defendant. (Tenn. Code Ann. § 40- 14-207). The defense counsel must seek pri or approval for such servi ces by submitti ng a written motion to t he Court sett ing fort h:

(a) the name of the

proposed expert o r service; (b) how, w hen an d where the exam ination is to be conducted or t he services ar e to be performed; (c) the cost of the evaluation and report thereof; (d) the cost

of any ot her necessary ser vices, such as court appear ances. 3 $ 6,832.50. The March bill w as comprised of 20.25 hours bill ed at an hourly rate of $ 150.00 for a total of $ 3,037.50 and $ 3,795.00 for the unpaid portion of the December bill. The petitioner has not received any compensation f or the March bill.
Upon review of Rule 13( 2)(B) 1 in conjunction with the entire Rule, we hold that Rule 13 required pr ior authorization before an attorney's servic es designated as "expert" may be bill ed at an hourly rate in ex cess of the Rule 13 designated amount. Such authorization must set forth in an order by the trial court the hourly rate to be bill ed. The petitioner did not procu re prior explicit approval for an hourly rate exceedi ng $ 40.00 an hour and is, ther efore, limited to the rate of $ 40.00 an hour. The AOC neither abused its discretion nor acte d arbitrarily in reducing the petitioner' s hourly rate from $ 150.00 to $ 40.00 an hour. See McCallen v. City of Memphis , 786 S.W.2d 633, 638 (Tenn. 1990) (setting forth standard of review for common law writ of certiorari as whether trial court exceeded jurisdiction or acted illegally, arbitrarily or fraudulently).4 The caus e is reman ded to Ch arles Ferr ell, Direc tor of th e Admini strative Office of the Courts, for considerati on of the March 11, 1997, bill w hich shall be paid in accordance with the mandates of Rule 13 and this opini on. Payment to the petitioner, however, shall not exceed the $ 2,500 .00 cap set by the trial court. Costs shall be taxed against the petitioner, Ann C.Short, for which execution may issue if neces sary.

JANICE M. HOLDER, JUSTICE
Concurring: Anderson, C.J. Drowota and Birch, J.J. Reid, Sp.J.