IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

February 23, 2017 Session

IN RE ESTATE OF BESSIE ADCOCK BINGHAM

Appeal from the Chancery Court for Bedford County

No. 28900 James B. Cox, Chancellor

No. M2016-01186-COA-R3-CV

This appeal arises from the probate administration of an estate. The principal issues 

concern a certificate of deposit and the trial court’s approval of attorney fees paid from 

the estate to the estate’s first attorney. The trial court awarded the certificate of deposit to

the decedent’s son, finding that the certificate of deposit passed to the son as the 

surviving joint tenant. With respect to attorney fees paid to estate’s first attorney, the trial 

court approved fees in the amount of $12,400 and disapproved fees in the amount of 

$7,600. The decedent’s daughter appealed. Finding no error, we affirm.

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

FRANK G. CLEMENT JR., P.J., M.S., delivered the opinion of the Court, in which ANDY D.

BENNETT and W. NEAL MCBRAYER, JJ., joined.

W. Kennerly Burger, Murfreesboro, Tennessee, for the appellant, Peggy Artley.

Megan Kingree Trott, Shelbyville, Tennessee, for the appellee, William S. Bingham.

OPINION

Bessie Adcock Bingham (“the decedent”) died on July 14, 2011, at the age of 92. 

She was survived by her two children, Peggy Bingham Artley (“Petitioner”) and William 

S. Bingham. In her Last Will and Testament, the decedent divided her estate equally 

between her children and appointed Mr. Bingham the executor (“Executor”). Executor 

hired attorney Wayne Bomar to assist with the probate of the estate. Executor’s contract 

with Mr. Bomar, dated July 20, 2011, included a list of the services Mr. Bomar would 

provide for the estate at a fee of 5% of the gross estate as determined by the Tennessee 

Department of Revenue Inheritance Tax Return. The contract also listed services that 

would not be included at the agreed percentage fee but rather at his hourly fee of $200, 

06/13/2017
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including, inter alia, contested lawsuits by any beneficiary or representative of any 

beneficiary.

On July 22, 2011, the decedent’s will was admitted to probate in the Bedford 

County Chancery Court. Executor filed his initial inventory and accounting (“Original 

Accounting”) in February 2012. Among the assets listed in the Original Accounting was 

a certificate of deposit in the amount of $80,000 that the decedent acquired from Regions

Bank in 2003. Three months later, Petitioner commenced this action by filing a Petition 

to Remove Executor, Seek Accounting, Object to Inventory, and to Inspect Estate. 

Executor filed an answer to the petition, denying that he had defaulted in his duties as 

Executor. Following a hearing on the petition, the trial court granted Petitioner access to 

the estate. Thereafter, substantial discovery ensued. 

On November 1, 2012, Petitioner filed a motion to disqualify Mr. Bomar as the 

attorney for the estate, alleging that Mr. Bomar had assumed an adversarial role for 

Executor’s individual interests and that he had taken actions on behalf of Executor that

were adverse to the obvious interests of Petitioner. Mr. Bomar subsequently submitted an 

order voluntarily withdrawing. On November 9, 2012, Ralph McBride Jr. entered an 

appearance as the attorney for the estate and Andrew C. Rambo entered an appearance on 

behalf of the individual interests of Executor.

Following protracted proceedings, Executor filed his “Interim Accounting” on 

July 23, 2014, in which Executor had omitted the certificate of deposit. Executor 

explained the omission of the certificate of deposit as follows: “The [Original 

Accounting] in this cause included as an asset a Regions Bank time deposit/IRA . . . in 

the amount of $80,000. Further investigation indicates that this account was jointly 

owned by the decedent and [Executor]. This account is therefore not included in this 

Interim Accounting.”

Petitioner filed an objection to the Interim Accounting in which, as relevant on 

appeal, she objected to Executor’s failure to include the certificate of deposit as an asset 

of the estate and an expense of $20,000 in attorney fees paid from the estate to Mr. 

Bomar. A hearing on Petitioner’s objections was held on January 22, 2015, at which 

Petitioner, Executor, and Mr. Bomar testified.

With respect to the certificate of deposit, it was undisputed that the account was 

jointly held by the decedent and Executor. Executor argued that, following the death of 

the decedent, the certificate of deposit passed to Executor by right of survivorship and 

was not an asset of the estate. In support of his position, Executor presented the

documents the bank utilized in establishing the account. The following documents were 

admitted into evidence: (1) Time Certificate of Deposit, (2) Regulation CC Funds 

Availability Disclosure, (3) Deposit Account Agreement and Disclosure, and (4) an 

untitled, one-page document that the parties referred to as the Signature Card. 
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The Time Certificate of Deposit states that the “account name” is “Bessie A.

Bingham or Billy Bingham.”

The Regulation CC Funds Availability Disclosure states that the “account holder”

is “Bessie A. Bingham or Billy Bingham.”

The Deposit Account Agreement and Disclosure states at the top of page one that 

the depositor is “Bessie A. Bingham or Billy Bingham.” On the middle of page two, the 

Deposit Account Agreement and Disclosure reads as follows:

MULTIPLE-PARTY ACCOUNTS. This section pertains to multiple 

party accounts:

(A) Joint Account Ownership. An account with two or more Account 

Holders is a joint account. Unless you designate otherwise on the Signature 

Card, joint Account Holders will be considered joint tenants with right of 

survivorship.

(1) Joint Tenants With Right of Survivorship. If your Account is 

a joint account with right of survivorship, upon the death of one of 

the joint Account Holders, that person’s ownership interest in the 

Account will be immediately pass to the other joint Account 

Holder(s).

(2) Joint With No Right of Survivorship. If your Account is a joint 

account with no right of survivorship (Joint as Tenants in Common), 

upon the death of one of the joint Account Holders, that person’s 

proportionate ownership interest will pass to the estate of the 

deceased Account Holder.

(Emphasis in original).

The Signature Card states that the account holders are “Bessie A. Bingham or 

Billy Bingham” and designates the account’s “ownership type” as “Joint (Right of 

Survivorship).” (Emphasis in original). The Signature Card provides a space for the 

signature of the decedent and a space for the signature of Executor, neither of which 

contain a signature. In clarifying the absence of their signatures, Executor testified that, 

although he was not present when the decedent purchased the certificate of deposit, the 

decedent and he signed the Signature Card and returned it to the bank. Executor further 

testified that when he attempted to obtain a copy of the signed Signature Card, the bank 

informed him that it “[didn’t] keep anything over seven years . . . .”
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Executor argued that the account documents clearly and unambiguously state that 

the funds were held by the decedent and Executor as joint tenants with right of 

survivorship. Executor further argued that the account’s designation of right of 

survivorship is “conclusive evidence . . . of the intentions of all named that title vests in 

the survivor,” pursuant to Tenn. Code Ann. § 45-2-703(e)(1). Thus, Executor insisted that 

the funds were not part of the decedent’s estate and did not pass under the will.

Petitioner argued that Executor could not rely on the conclusive presumption 

established in Tenn. Code Ann. § 45-2-703(e)(1) because the Signature Card was not 

signed by the decedent. According to Petitioner, the decedent was mentally alert and 

physically capable of executing the paperwork related to the certificate of deposit; thus, 

the absence of the decedent’s signature on the Signature Card evinces that the decedent 

did not agree with the manner in which the account was established, that being a joint 

account with right of survivorship. Petitioner further argued that, without any signed 

documents designating that the account carried a right of survivorship, there is a 

rebuttable presumption that the “property held under the title, joint tenancy, carries no 

right of survivorship,” pursuant to Tenn. Code Ann. § 45-2-703(e)(4). Petitioner 

contended that Executor failed to overcome that presumption. Thus, she insisted that the 

funds were part of the decedent’s estate and should pass under the will rather than to 

Executor.

As to the issue of attorney fees, Executor testified that the estate paid Mr. Bomar 

$20,000 for legal services he provided to the estate. Executor stated that he was satisfied 

with the services provided by Mr. Bomar, that the services rendered were of value to the 

estate, and that he believed the $20,000 fee was reasonable. 

For his part, Mr. Bomar testified at length as to the difficulty of the case. 

Specifically, Mr. Bomar testified that Petitioner employed four different attorneys while 

he represented the estate, which caused his work to increase because it was necessary to 

repeat work following the employment of each new attorney. In addition to Petitioner’s

frequent changes of attorneys, Mr. Bomar testified that he also had to expend time to deal 

with Petitioner’s unauthorized removal of personal property from the decedent’s house. 

He further noted that there were numerous unsuccessful attempts to settle the estate 

during his representation. Mr. Bomar provided an itemization of his time spent on the 

case, showing that he spent 72 hours defending this action. With respect to the 

itemization, Mr. Bomar testified that it was a reconstruction of the time he spent

representing the estate and that he did not keep contemporaneous time records where he 

represented the estate due to the percentage fee agreement in the contract.

Petitioner argued that Mr. Bomar’s percentage fee arrangement was “per se 

unlawful and a violation of the Tennessee Rules of Professional Conduct.” Petitioner also 

argued that Mr. Bomar’s fees were excessive because Mr. Bomar was protecting the 

individual interest of Executor at the expense of the estate. According to Petitioner, Mr. 
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Bomar’s fees should have been about the same as the fees of her first attorney, John 

Bobo.

In ruling from the bench, the trial court concluded that the certificate of deposit 

properly passed to Executor as the surviving joint tenant. Specifically, the trial stated: 

Even without the signatures appearing, the presumption given rise to by 

[Tenn. Code Ann. §] 45-2-703(e)(1) is still in play. And it is a conclusive 

presumption. And the Court does not find that it’s been overcome. As it 

relates to that analysis, the Court honestly will credit [Petitioner’s] 

testimony about her mother’s mental state at the time in that circumstance.

With respect to Mr. Bomar’s attorney fees, the trial court reviewed the fee requests 

for reasonableness and approved fees in the amount of $12,400 and disapproved fees in 

the amount of $7,600. The court ordered that the $7,600 be treated as a distribution to 

Executor and taken into account upon final settlement of the estate. 

The trial court entered a written order consistent with its bench ruling on March 

13, 2015. After further protracted proceedings, an order closing the estate was entered on 

May 6, 2016. Petitioner timely appealed.

Although not stated exactly as such, Petitioner raises two issues: 1) whether the 

trial court erred in holding that the certificate of deposit carried a right of survivorship; 

and 2) whether the trial court erred in approving Mr. Bomar’s attorney fees.

STANDARD OF REVIEW

The issues on appeal arise from a bench trial. “In all actions tried upon the facts 

without a jury, the court shall find the facts specially and shall state separately its 

conclusions of law and direct the entry of appropriate judgment.” Tenn. R. Civ. P. 52.01. 

If the trial court makes the required findings of fact, appellate courts review the trial 

court’s factual findings de novo upon the record, accompanied by a presumption of 

correctness of the findings, unless the preponderance of the evidence is otherwise. Kelly 

v. Kelly, 445 S.W.3d 685, 692 (Tenn. 2014) (citing Tenn. R. App. P. 13(d)). “For the 

evidence to preponderate against a trial court’s finding of fact, it must support another 

finding of fact with greater convincing effect.” State ex rel. Flowers v. Tenn. Trucking 

Ass’n Self Ins. Grp. Trust, 209 S.W.3d 595, 598-99 (Tenn. Ct. App. 2006). Our review of 

a trial court’s determinations on issues of law is de novo, without any presumption of 

correctness. Lind v. Beaman Dodge, Inc., 356 S.W.3d 889, 895 (Tenn. 2011).
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ANALYSIS

I. THE CERTIFICATE OF DEPOSIT

Petitioner contends that the trial court erred in holding that the certificate of 

deposit carried a right of survivorship and, therefore, passed to Executor following the 

death of the decedent. 

Our analysis of this issue is controlled by Tenn. Code Ann. § 45-2-703, as that 

statute governs deposits to bank accounts and also certificates of deposits in the names of 

two or more persons, such as the certificate of deposit here.

1 Guess v. Finlay, No. E2011-

00947-COA-R3-CV, 2012 WL 1302779, at *5 (Tenn. Ct. App. Apr. 16, 2012). That 

statute provides, in pertinent part, as follows:

(a) When a deposit has been made or is hereafter made, in any bank, in the 

names of two (2) or more persons, payable to either, or survivor, the 

deposit, or any part of the deposit, or any interest or dividend on the 

deposit, may be paid to either person, whether the others are living or not; 

and the receipt or acquittance of the person so paid shall be a valid and 

sufficient release and discharge to the bank for any payment so made. . . . 

. . . .

(c) As used in subsections (c)-(f), “multiple-party deposit account” means a 

deposit account, including a certificate of deposit, established in the names 

 

1

Although neither party disputes that the certificate of deposit should be analyzed under Tenn. 

Code Ann. § 45-2-703, we acknowledge that this court has reached differing conclusions on the 

applicability of Tenn. Code Ann. § 45-2-703 to certificates of deposit. For instance, in Roberts v. Roberts, 

this court held that “[t]he statute does not apply to certificates of deposit which require no signature card 

and provide no withdrawal until maturity.” Roberts v. Roberts, 827 S.W.2d 788, 796 (Tenn. Ct. App. 

1991). Several years later, this court found that “Roberts was wrongly decided” because the “plain 

language of the statute extending its application to ‘multiple-party deposit account[s]’ expressly 

includ[es] ‘a certificate of deposit, established in the names of, payable to, or in form subject to 

withdrawal by two (2) or more natural persons. . . .’” Guess v. Finlay, No. E2011-00947-COA-R3-CV, 

2012 WL 1302779, at *11 (Tenn. Ct. App. Apr. 16, 2012), no appeal filed (quoting Tenn. Code Ann. 

§ 45-2-703(c)). However, a recent decision of this court cited to our holding in Roberts and held that an 

appellant’s reliance on Tenn. Code Ann. § 45-2-703 for determining ownership of a certificate of deposit

was misplaced. In re Estate of Kirkman, No. W2016-00759-COA-R3-CV, 2017 WL 626826, at *4 (Tenn. 

Ct. App. Feb. 15, 2017), no appeal filed.

We, like the Guess court, decline to ignore the plain language of the statute extending its 

application to “a certificate of deposit, established in the names of, payable to, or in form subject to 

withdrawal by two (2) or more natural persons,” such as the certificate of deposit at issue here. Tenn. 

Code Ann. § 45-2-703(c); Guess, 2012 WL 1302779, at *5.
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of, payable to, or in form subject to withdrawal by two (2) or more natural 

persons, or any of them, including, but not limited to, an account of the type 

described in subsection (a).

(d)(1) When opening a multiple-party deposit account, or amending an 

existing deposit account so as to create a multiple-party deposit account, 

each bank shall utilize account documents that enable the depositor to 

designate ownership interest therein in terms substantially similar to the 

following:

(A) Joint tenants with right of survivorship;

(B) Additional authorized signatory; and

(C) Other deposit designations that may be acceptable to the bank.

(2) Account documents that enable the depositor to indicate the depositor’s 

intent of the ownership interest in any multiple-party deposit account may 

include any of the following:

(A) The signature card;

(B) The deposit agreement;

(C) A certificate of deposit;

(D) A document confirming purchase of a certificate of deposit; or

(E) Other documents provided by the bank or deposit institution that 

indicate the intent of the depositor.

(e) Accounts described in subsection (c) shall establish the following 

interests:

(1) A designation of joint tenants with right of survivorship, or substantially 

similar language, shall be conclusive evidence in any action or proceeding 

of the intentions of all named that title vests in the survivor;

. . . .

(4) In the absence of any specific designation in accordance with subsection 

(d), property held under the title, tenancy by the entireties, carries a right of 

survivorship; property held under the title, joint tenancy, carries no right of 

survivorship unless a contrary intention is expressly stated. Any other 

person to whose order the accounts or certificate of deposit is subject shall 

be presumed to have power of attorney with respect to the account or 

certificate of deposit and not to be an owner of the account or certificate of 

deposit. The presumptions may be rebutted by clear and convincing 

evidence presented in the course of legal or equitable proceedings. . . .
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(f) Without incurring any liability, any bank may, but shall not be required 

to, provide to depositors disclosures in form similar to the following:

(1) JOINT TENANTS WITH RIGHT OF SURVIVORSHIP. This 

designation means that the deposit account or certificate of deposit shall 

become the property of each owner as joint tenants, and that the survivor is 

entitled to all moneys in the account or represented by the certificate even if 

the first person to die had a will specifically directing disposition to 

someone else. The bank may release all moneys in the account or 

represented by the certificate to, or honor checks or orders drawn by, or 

withdrawal requests from, the survivor upon the death of any joint 

tenant; . . . .

(2) ADDITIONAL AUTHORIZED SIGNATORY. This designation means 

that the person named as additional authorized signatory shall have 

authority during the lifetime of one (1) or more owners to withdraw moneys 

from the deposit account or represented by the certificate of deposit. 

Moneys remaining in the account or represented by the instrument upon the 

owner’s death shall become part of the deceased owner’s estate, subject to 

the deceased person’s will or applicable law if the deceased person left no 

will. The bank may release all moneys in the account or represented by the 

certificate to, or honor checks or orders drawn by, or withdrawal requests 

from, the authorized signatory until notified of revocation of the authority.

(g) Subsections (c)-(f) shall not apply to any accounts in existence prior to 

January 1, 1989.

Tenn. Code Ann. § 45-2-703(a), (c)-(f).

Petitioner argues that Executor cannot rely on the conclusive presumption 

established by Tenn. Code Ann. § 45-2-703(e)(1) because the documents submitted into 

evidence, and specifically the Signature Card, do not bear the signature of the decedent. 

We find this argument unpersuasive. 

As applicable here, Tenn. Code Ann. § 45-2-703(d)(1) requires a bank to “utilize 

account documents that enable the depositor to designate ownership interest” when 

establishing an account in the names of two or more people. The statute expressly 

provides that such account documents “may include any of the following: (A) The 

signature card; (B) The deposit agreement; (C) A certificate of deposit; (D) A document 

confirming purchase of a certificate of deposit; or (E) Other documents provided by the 

bank or deposit institution that indicate the intent of the depositor.” Tenn. Code Ann. 

§ 45-2-703(d)(2). Conspicuous by its absence in Tenn. Code Ann. § 45-2-703 is a 

requirement that any documents referred to therein be signed by anyone.
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In accordance with Tenn. Code Ann. § 45-2-703(d)(1), Regions Bank utilized 

account documents that enabled the decedent to designate ownership interest in the 

certificate of deposit. Specifically, pursuant to the Deposit Account Agreement and 

Disclosure, the decedent and Executor would hold the account as joint tenants with it a 

right of survivorship unless designated otherwise on the Signature Card. The Signature 

Card confirmed that the account was held as joint tenants with right of survivorship. In 

our view, this ends our inquiry regarding ownership of the certificate of deposit. This is 

because, under the clear language of the statute, the decedent’s intent that the certificate 

of deposit carries with it a right of survivorship is conclusively established by the 

documents utilized by the bank. Tenn. Code Ann. § 45-2-703(e)(1); Guess, 2012 WL 

1302779, at *11. Moreover, there is no proof, or even an allegation, that, in purchasing

the certificate of deposit, the decedent did so because of fraud, duress, or undue 

influence. Thus, there is nothing more that needs to be said in resolving this aspect of the 

appeal. 

Under the record before us, the wording of the certificate of deposit is “conclusive 

evidence . . . that title vests in the survivor.” Tenn. Code Ann. § 45-2-703(e)(1). 

Accordingly, we hold that the certificate of deposit properly passed to the Executor by 

operation of law and, therefore, was properly excluded by the trial court from the probate 

proceedings.

II. ATTORNEY FEES

We turn next to Petitioner’s assertion that the trial court erred by approving 

payment of Mr. Bomar’s attorney fees.

Decisions regarding an award of reasonable attorney’s fees are generally within 

the discretion of the trial court. Wright ex rel. Wright v. Wright, 337 S.W.3d 166, 176 

(Tenn. 2011). We review discretionary decisions pursuant to the “abuse of discretion”

standard of review. Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 524 (Tenn. 2010). The 

abuse of discretion standard does not permit reviewing courts to substitute their discretion 

for the trial court. Id. Nevertheless, the abuse of discretion standard of review does not 

immunize a lower court’s decision from any meaningful appellate scrutiny. Id. When 

reviewing a discretionary decision, the appellate court is to determine, where applicable, 

whether there is a factual basis for the decision in the record, whether the court correctly 

identified and properly applied the relevant legal principles, and whether the decision is 

within the range of acceptable alternative dispositions. Id. at 525.

In this case, Executor requested approval of attorney fees he paid to Mr. Bomar in 

the amount of $20,000. The trial court approved fees in the amount of $12,400 and 

disapproved fees in the amount of $7,600. The court’s ruling from the bench reads, in 

pertinent part, as follows:
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[T]he cultural history of fees within our judicial district has long been since 

they were – they were charged as percentages. It’s just with the recent 

advent of greater scrutiny on those that we have come to even think too 

much about that. And I think probably, rightfully, that we should be 

thinking about that if -- if as lawyers we want to have credibility going 

forward. And [Counsel for Petitioner] is right, and I cannot escape the 

finding that there was nothing before today that would have shown what 

Mr. Bomar did. The only real question I have in my mind is does the fact 

that I now have it satisfy where we are. Does it -- because it did appear 

today, does that mean that it’s automatically disqualified or not. I have no 

idea what minds brighter than mine would do with that going up. I -- I just 

don’t know.

I can tell you that there are even still in existence today local rules that 

contemplate a percentage as being an appropriate matter. The difficulty of 

this estate cannot be understated. The potential risks associated with trying 

to tightrope between these two vigorous litigants cannot be understated.

As it relates to the Court’s analysis adding to those statements, I must 

respectfully disagree with [Counsel for Petitioner’s] analysis of parallelism 

in this circumstance. I don’t think that there is an automatic parallel 

between what Mr. Bobo’s fee was as it relates to reasonability versus what 

Mr. Bomar’s fee should be because the parallel conduct only occurs after 

we got into the vigorous disagreement side of it. It really has nothing to do 

with making sure we have the rest of it taken care of. And by the rest of it, I 

mean the initial conference, the initial filing of papers, those things that go 

along with dealing with difficulties like these. . . . 

So I have an affidavit now that says 72 hours, which [Counsel for 

Petitioner] believes is too long, and I -- and I understand the thought 

process behind that, especially in light of Mr. Bobo’s fee request. Having 

heard what I’ve heard since 9:00 o’clock this morning, it strikes me as 

being more reasonable than I might have first anticipated it being. I think 

the Court, even under that rule, would have an obligation . . . to review 

those fees for – requests for reasonableness. . . .

Looking at [the contract] and [the itemization of hours] . . . the Court 

believes that automatically the miscellaneous provision on the last page of 

[the itemization of hours] should be disregarded, which would drop his time 

frame from 72 plus hours down to 62 hours. In reviewing the rest of the 

approximate hours, although they may appear based upon [Counsel for 

Petitioner’s] analysis to be too much, the Court finds that they’re 
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appropriate and within the appropriate standard to be applied here. The 

Court would grant a fee consistent with 62 hours at Mr. Bomar’s hourly 

rate, which was communicated to [Executor] at the time of the letter at 

$200 an hour. The Court’s referencing [the contract] as it relates to that. 

When folks disagree and cannot come to reasonable terms, it automatically 

gets more expensive, especially in these settings.

Petitioner argues that the trial court erred in authorizing any fee to be paid by the 

estate. Alternatively, Petitioner argues that Mr. Bomar’s fee award is excessive. We will 

discuss each argument in turn.

A.

Petitioner asserts that the trial court should not have approved any of Mr. Bomar’s

fees because his contract with Executor provided that his fee was based on a percentage 

formula. Petitioner’s argument, as we understand it, is that this court’s opinion in In re 

Estate of Thompson, No. M2011-00411-COA-R3-CV, 2012 WL 912859 (Tenn. Ct. App. 

Mar. 14, 2012) perm. app. denied (Tenn. Mar. 14, 2012), stands for the legal proposition 

that charging a fee based on a percentage formula in a probate matter is “per se unlawful 

and violate[s] Rule 1.5 of the Rules of Professional Conduct.” We disagree. 

Contrary to the Petitioner’s assertion, in Thompson, we did not hold that a 

percentage fee in an estate is per se invalid; rather, the court held that the trial court erred 

by relying primarily on a percentage formula provided in a local rule without considering 

whether the fee was reasonable in accordance with the factors set forth in Rule 1.5(d) of 

the Rules of Professional Conduct. See Thompson, 2012 WL 912859, at *6-7.2 Moreover, 

Rule 1.5(d) identifies only two types of prohibited fees, contingency fees in certain 

domestic cases and contingent fees in criminal cases, neither of which are applicable 

here. Tenn. Sup. Ct. R. 8, RPC 1.5(d).

 

2

In Thompson, the trial court approved attorney fees for an estate’s attorney based on the 

percentage formula set forth in a local rule. Thompson, 2012 WL 912859, at *7. On appeal, this court 

found that the trial court “stray[ed] beyond the applicable legal standards” by explicitly relying on the 

percentage formula set forth in the local rule. Id. (quoting Lee Med., 312 S.W.3d at 524). The court 

explained that regardless of whether the local rule concerning the fee to be awarded to an attorney is 

characterized as a “guide,” a trial court is not permitted to rely on such a percentage formula in setting the 

fee but must instead utilize “the individualized weighing process mandated by the Supreme Court.” Id. at 

*6. The Thompson court then went on to determine the reasonable fee that the attorney was owed for the 

services rendered in the case, considering, among other things, the hours worked by the attorney, any 

extraordinary services rendered, “the novelty and difficulty of the questions involved,” and “the fee 

customarily charged in the locality for similar legal services.” Id. at *10-11 (quoting Tenn. Sup. Ct. R. 8, 

RPC 1.5). 
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In this case, the trial court specifically stated that it had an obligation to review the 

Mr. Bomar’s fee requests for reasonableness, regardless of the local rule. Petitioner has 

cited no other authority for her proposition that charging percentage fees are per se 

unlawful in probate cases such that no attorney fees should be awarded, and we have 

found none. Accordingly, we find this issue without merit.

B.

Alternatively, Petitioner asserts that Mr. Bomar’s fee award is excessive. As to 

this issue, Petitioner insists that the record is “replete with examples where it is clear that 

Mr. Bomar was protecting the individual interests of [Executor] at the expense of 

[Petitioner]” and that Mr. Bomar’s itemization of hours was not credible. Instead of 

including facts with citations to the record in support of these allegations, Petitioner 

merely offers conclusions such as “these points seem obvious” and “[a] review of the 

matters contained in the Record . . . would justify the reasonable conclusion that certainly 

no more than five or ten hours could have been expended by Mr. Bomar’s work, most of 

which was devoted to [Exectuor’s] holy war with his previously beloved sister, 

[Petitioner].” By failing to cite to any portions of the record in support of this claim of 

error, Petitioner has waived her argument as to this issue. See Tenn. R. App. P. 27(a)(7) 

(requiring briefed arguments to include “appropriate references to the record”). 

Despite Petitioner’s waiver of this issue, our review of the record demonstrates 

that the trial court did not abuse its discretion in its approval of Mr. Bomar’s attorney 

fees. The trial court correctly identified the applicable legal principle when reviewing Mr. 

Bomar’s fee requests of $20,000, that being the reasonableness of the fee in consideration 

of the factors set forth in Rule 1.5(d) of the Rules of Professional Conduct. The trial court 

then properly applied that principle to the facts of this case to support its conclusion that a 

fee in the amount of $12,400, consistent with 62 hours at Mr. Bomar’s hourly rate of 

$200 pursuant to his contract with Executor, was a reasonable fee for Mr. Bomar’s legal 

services considering, inter alia, the difficulty of this estate.

In view of the facts and circumstances of this case, we find the fee approved by 

the trial court within the range of acceptable alternative dispositions. See Lee Med., 312 

S.W.3d 524. Therefore, the trial court’s award of fees in the amount of $12,400 to Mr. 

Bomar is affirmed.
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IN CONCLUSION

The judgment of the trial court is affirmed, and this matter is remanded with costs 

of appeal assessed against Peggy Bingham Artley.

________________________________

 FRANK G. CLEMENT, JR., P.J., M.S.