IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

December 5, 2018 Session

RAFIA N. KHAN, INDIVIDUALLY, AND IN HER CAPACITY AS 

TRUSTEE OF THE RAFIA N. KHAN IRREVOCABLE TRUST v. 

REGIONS BANK

Appeal from the Chancery Court for Knox County

No. 173193-2 Clarence E. Pridemore, Jr., Chancellor

___________________________________

No. E2018-01173-COA-R3-CV

___________________________________

This is the fourth appeal arising from a disputed arbitration award in favor of Regions 

Bank (the Bank) “against Rafia N. Khan, individually, and as trustee” of the Rafia N. 

Khan Irrevocable Trust (the Trust). Pursuant to this Court’s mandate in the first appeal,

the trial court entered an order confirming the arbitration award “as to the Rafia N. Khan 

Irrevocable Trust and to Rafia N. Khan as Trustee of the Rafia N. Khan Irrevocable 

Trust.” Later, the trial court entered an order granting the Bank $72,156 in attorney’s 

fees and $2,094.05 in costs. Of that amount, the court assessed $45,928.92 against the 

Trust and assessed $28,321.13 against Ms. Khan individually. Ms. Khan’s notice of 

appeal states that she is appealing (1) the trial court’s order confirming the arbitration 

award; (2) the court’s order granting the Bank attorney’s fees and costs; and (3) the 

court’s order denying Ms. Khan’s motion to alter or amend. We affirm the trial court’s 

order confirming the arbitration award pursuant to the law of the case doctrine. We 

modify the court’s order awarding attorney’s fees. The award shall include attorney’s 

fees incurred by the Bank in the trial court and on direct appeal but not attorney’s fees 

incurred by the Bank in federal bankruptcy court proceedings.

 

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

Affirmed as Modified; Case Remanded

CHARLES D. SUSANO, JR., J., delivered the opinion of the court, in which JOHN W.

MCCLARTY and THOMAS R. FRIERSON, II, JJ., joined.

Dan D. Rhea, Knoxville, Tennessee, for the appellant, Rafia N. Khan, individually, and 

in her capacity as Trustee of The Rafia N. Khan Irrevocable Trust.

Michael Kelley, Knoxville, Tennessee, for the appellee, Regions Bank.

02/06/2019
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OPINION

I.

We explained the facts underlying the parties’ arbitration dispute in Khan v. 

Regions Bank, 461 S.W.3d 505 (Tenn. Ct. App. 2014) [hereinafter Khan I]: 

 

Mr. and Mrs. Khan obtained a joint line of credit from the 

Bank’s predecessor secured by a deed of trust on residential 

property. Mrs. Khan had bought the property in 2004, and, 

later in 2004, she quitclaimed it to the Rafia N. Khan 

Irrevocable Trust. This property is where Mrs. Khan and her 

two children live. The joint line of credit dates from 2006, 

and it provided for credit up to $80,000. Mrs. Khan signed 

the credit agreement and disclosure in her individual capacity 

and signed the deed of trust both in her individual capacity 

and on behalf of the Trust.

In 2008, Mrs. Khan wanted to close the line of credit. There 

was some issue about whether or when the paperwork 

necessary to close the line of credit was processed finally. 

Before the final processing, Mr. Khan transferred $40,000 

from the joint line of credit to his checking account. Mrs. 

Khan apparently was not consulted and did not approve of 

this move. The Khans have since divorced.

Id. at 506-07.

When the Bank refused to release the lien on the residential property, Ms. Khan, 

acting in her individual capacity and as trustee of the Rafia N. Khan Irrevocable Trust, 

filed suit against the Bank. Id. at 507. She alleged that the Bank’s refusal to release the 

lien was an “unfair act” under the Tennessee Consumer Protection Act (TCPA). Id. The 

parties subsequently agreed to resolve the dispute through arbitration, as required by the 

loan documents. Id. 

The arbitrator found that Ms. Khan was not personally liable for the $40,000 loan 

made to her husband and that the Bank did not violate the TCPA. Id. To Ms. Khan’s 

displeasure, however, the arbitrator declined to order the Bank to release the lien on the

residential property. Id. Because Mr. Khan was never made a party to the arbitration,1

 

1 As we noted in Khan I, “[t]he Bank attempted to add Mr. Khan as a party to the arbitration, a 

move Mrs. Khan successfully opposed.” Id. at 507. This proved fatal to Ms. Khan’s case: “Having 

successfully kept Mr. Khan from being a party to the arbitration, she cannot now argue that the Arbitrator 
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the arbitrator concluded that he lacked the authority “to decide whether or not Mr. Khan 

remains liable to Regions Bank on the line of credit or on some other basis” and “to 

decide whether the Deed of Trust secures any such indebtedness Mr. Khan may have to 

Regions Bank.” Id. Finally, pursuant to a contractual provision in loan documents, the 

arbitrator awarded the Bank $25,995.54 in attorney’s fees and costs “against Mrs. Khan, 

individually and as Trustee.” Id. at 508. Shortly thereafter, the Bank filed a petition in 

the trial court to confirm the arbitration award. Ms. Khan filed a competing motion to 

vacate the award. The trial court denied the Bank’s petition and granted Ms. Khan’s 

motion to vacate the award. The Bank appealed.

During the pendency of the appeal in Khan I, Ms. Khan filed for bankruptcy in the 

U.S. Bankruptcy Court for the Eastern District of Tennessee. In May 2011, Ms. Khan 

received a discharge of her debts in bankruptcy. The Bank filed a proof of claim in the 

bankruptcy case, which included the arbitration award. In response, Ms. Khan initiated

an adversary proceeding in the bankruptcy court, challenging the Bank’s proof of claim. 

Ms. Khan’s First Amended Complaint asked the bankruptcy court to disallow the 

arbitration award, in part, because the trial court had already vacated the award. The 

bankruptcy court dismissed Ms. Khan’s adversary proceeding on jurisdictional grounds. 

In re Khan, No. 11–3186, 2011 WL 4543962 (Bankr. E.D. Tenn., filed Sept. 29, 2011). 

Ms. Khan appealed to the U.S. District Court for the Eastern District of Tennessee, which 

affirmed the decision of the bankruptcy court. In re Khan, No. 3:12–cv–00025, 2012 

WL 5381444 (E.D. Tenn., filed Oct. 31, 2012). Ms. Khan subsequently appealed to the 

U.S. Court of Appeals for the Sixth Circuit, which also affirmed. In re Khan, 544 Fed. 

App’x 617 (6th Cir. 2013). Finally, Ms. Khan filed a petition for certiorari with the U.S.

Supreme Court. Her petition was denied. Khan v. Regions Bank, 572 U.S. 1016 (2014). 

In November 2014, this Court announced its decision in Khan I. We reversed the 

judgment of the trial court and remanded the case with instructions to confirm the 

arbitration award. Khan, 461 S.W.3d at 512. Because Ms. Khan was granted a discharge 

of her debts in bankruptcy during the pendency of the appeal, we directed the trial court 

“to enter an order confirming the Arbitrator’s award but only as to the Rafia N. Khan 

Irrevocable Trust[.]” Id. at 508-09, 512. Ms. Khan sought discretionary review of our 

decision with the Tennessee Supreme Court and the United States Supreme Court; both 

courts declined to hear the case. Khan v. Regions, 136 S. Ct. 129 (2015) (denying 

petition for certiorari); Khan, 461 S.W.3d 505 (Tenn. Ct. App. 2014), perm. app. den.

(Tenn. 2015). 

After our decision in Khan I, but before the trial court had entered an order 

confirming the arbitration award, Ms. Khan filed another complaint against the Bank 

 

exceeded his powers in failing to make determinations regarding Mr. Khan . . . .” Id. at 511.
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(Khan II). The trial court dismissed that complaint on the basis of the prior suit pending 

doctrine. In a memorandum opinion, this Court affirmed the trial court’s dismissal of 

Khan II. Khan v. Regions Bank, No. E2015-01891-COA-R3-CV, 2016 WL 3094917 

(Tenn. Ct. App., filed May 25, 2016).2

In September 2015, the Bank filed a motion with the trial court for an award of 

post-arbitration attorney’s fees. On October 16, 2015, before ruling on the Bank’s 

motion, the trial court entered a self-styled “Final Judgment” confirming the arbitration 

award “as to the Rafia N. Khan Irrevocable Trust and to Rafia N. Khan as Trustee of the 

Rafia N. Khan Irrevocable Trust.” A few days later, the Bank filed certified copies of 

that order with the Knox County Register of Deeds in order to establish and maintain a 

judgment lien against the residential property. The Bank has never sought to levy the 

property and has never filed a motion with the court to foreclose on its lien. 

In June 2017, Ms. Khan filed a third complaint (Khan III) asking the trial court to 

set aside its judgment confirming the arbitration award in Khan I. First, Ms. Khan 

alleged that the court lacked personal jurisdiction to confirm the arbitration award against 

the Trust, which she claimed was never a party in the case. Second, Ms. Khan alleged 

that the court’s order was void under federal bankruptcy law to the extent that it imposed

personal liability on Ms. Khan “as Trustee of the Rafia N. Khan Irrevocable Trust.” The 

Bank filed a Rule 12.02(6) motion to dismiss and raised the affirmative defense of res 

judicata. After a hearing, the trial court granted the Bank’s motion and dismissed the 

case on the basis of res judicata. Ms. Khan appealed.

In May 2018, this Court announced its decision in Khan III. Khan v. Regions 

Bank, No. E2017-02454-COA-R3-CV, 2018 WL 4566519 (Tenn. Ct. App., filed May 

30, 2018), perm. app. denied (Tenn. 2019). We reversed the trial court’s ruling on the 

issue of res judicata because the order appealed from was not a final judgment. Id. at *4 

(“Because the trial court’s October 16, 2015 order did not resolve the issue of postarbitration attorney’s fees, it was not a final judgment.”). Nevertheless, we affirmed the 

trial court’s dismissal of the case because Ms. Khan’s complaint failed to state a claim 

upon which relief could be granted. Id. at *5-6. It was apparent from Ms. Khan’s 

complaint that the trial court properly exercised its jurisdiction over the Trust. It was 

equally apparent that the arbitration award did not impose personal liability on Ms. Khan 

in violation of federal bankruptcy law. Id. at *5. Ms. Khan challenged these legal 

conclusions in a petition for rehearing, which this Court denied. Ms. Khan subsequently 

filed an application for permission to appeal with the Tennessee Supreme Court. On 

January 18, 2019, the Supreme Court denied permission to appeal.

 

2 Rule 10 of the Rules of the Court of Appeals provides that a memorandum opinion “shall not be 

published, and shall not be cited or relied on for any reason in any unrelated case.” Tenn. Ct. App. R. 10 

(emphasis added). “Because the case at bar is a related case, we cite to our previous memorandum 

opinion only for procedural context.” See Simmons v. Cheadle, No. M2017–00494–COA–R3–CV, 2017 

WL 4742971, at *1 n.1 (Tenn. Ct. App., filed Oct. 19, 2017) (emphasis added).
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During the pendency of the appeal in Khan III, the trial court revisited the issue of 

post-arbitration attorney’s fees. Ultimately, the court entered an order granting the Bank 

$72,156 in attorney’s fees and $2,094.05 in costs. The court assessed $45,928.92 against 

the Trust and assessed $28,321.13 against Ms. Khan individually. The court stated that 

the award against Ms. Khan individually was based solely upon the attorney’s fees and 

costs incurred by the Bank in defending the adversary proceeding initiated by Ms. Khan 

in federal bankruptcy court. Ms. Khan filed a motion to alter or amend, which the trial 

court denied. This appeal followed. 

II.

We restate and consolidate the issues raised on appeal as follows:

Whether we should affirm the trial court’s order confirming 

the arbitration award pursuant to the law of the case doctrine.3

Whether the trial court lacked subject matter jurisdiction to 

award the Bank attorney’s fees incurred during federal 

bankruptcy court proceedings.

III.

“The extent to which the law of the case doctrine precludes re-litigation of an issue 

decided in a prior appeal is a question of law, subject to de novo review.” State ex rel. 

Dept. of Transp. v. Thomas, No. W2013–02082–COA–R3–CV, 2014 WL 6992126, at 

*6 (Tenn. Ct. App., filed Dec. 11, 2014). In Gray’s Disposal Co., Inc. v. Metropolitan 

Government of Nashville, the Supreme Court explained the purpose and proper 

application of the law of the case doctrine:

An appellate court’s final decision in a case establishes the 

“law of the case” when a case is remanded for further 

proceedings. This “law of the case” is binding on the trial 

court during the remanded proceedings and is also binding on 

the appellate courts should a second appeal be taken after the 

trial court enters a judgment in response to the remand order. 

Memphis Publ’g Co. v. Tenn. Petroleum Underground 

 

3 As explained later in this opinion, the first two “issues” raised by Ms. Khan are, in reality, 

arguments that the law of the case doctrine should not be applied. We construe her brief as requesting 

relief from the trial court’s order confirming the award, which was entered pursuant to this Court’s 

allegedly erroneous mandate in Khan I.
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Storage Tank Bd., 975 S.W.2d 303, 306 (Tenn. 1998). While 

the doctrine applies only to issues that were actually decided 

by the court, explicitly or implicitly, it does not apply to dicta.

Memphis Publ’g Co. v. Tenn. Petroleum Underground 

Storage Tank Bd., 975 S.W.2d at 306; Ladd ex rel. Ladd v. 

Honda Motor Co., 939 S.W.2d 83, 90 (Tenn. Ct. App. 1996).

* * *

Adhering to the “law of the case” doctrine promotes finality 

and efficiency in litigation, ensures consistent results in the 

same proceeding, and assures that lower courts follow the 

decision of higher courts. State v. Jefferson, 31 S.W.3d 558, 

561 (Tenn. 2000); Harrison v. Laursen, 128 S.W.3d 204, 208 

(Tenn. Ct. App. 2003).

318 S.W.3d 342, 348 (Tenn. 2010).

The Supreme Court has also acknowledged that the doctrine is “neither a 

constitutional mandate nor an inflexible limit on the adjudicatory power of the courts.” 

Id. (citations omitted). Instead, it is discretionary. Id. The Court has identified three 

situations in which the doctrine “does not necessarily apply”:

(1) when the evidence offered at a trial or hearing following 

the remand is substantially different from the evidence in the 

earlier proceeding; 

(2) when the prior decision was clearly erroneous and would 

result in manifest injustice if allowed to stand; or 

(3) when the prior decision is contrary to a change in the 

controlling law which has occurred between the first and 

second appeal.

Id. (citing Memphis Publ’g Co., 975 S.W.2d at 306; In re Estate of Boote, 265 S.W.3d 

402, 413 (Tenn. Ct. App. 2007)).

Here, Ms. Khan attempts to avoid application of the law of the case doctrine by 

arguing that this Court’s decision in Khan I was “clearly erroneous and would result in 

manifest injustice if allowed to stand.” See id. Specifically, Ms. Khan argues that this 

Court committed clear error (1) by concluding that the Court could exercise jurisdiction 
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over the Trust, “when ‘the . . . Trust’ was not, in fact, a party to that appeal”; and (2) by 

“mak[ing] that determination solely on the basis of a new argument that the [Bank] made 

in its Reply Brief.”4 Both assertions of error are without merit.

First, the Bank did not raise a new argument in its reply brief. The Bank’s 

principal brief in Khan I addressed two issues: (1) “Whether the Trial Court erred in 

vacating the final arbitration award issued by Arbitrator Robert P. Murrian pursuant to 9 

U.S.C. § 10(a)(4) of the Federal Arbitration Act”; and (2) “Whether the Trial Court 

should have confirmed the final arbitration award.” In its brief, the Bank argued that the 

trial court erred by vacating the award based on its conclusion that the arbitrator exceeded

his authority under federal law. Because the trial court’s decision was based solely on 

that determination, the Bank argued that resolution of that issue in the Bank’s favor 

would leave “no impediment to the confirmation of the final award.” The brief 

concluded with a request that this Court “remand the case to the Trial Court with 

directions that the final award be confirmed.” As previously discussed, the “final award” 

was against “Rafia N. Khan, individually, and as trustee” of the Trust. 

Ms. Khan then filed her principal brief. Her brief’s statement of issues raised the 

additional issue of whether the Bank lacked standing to proceed with the appeal in light 

of the bankruptcy discharge injunction of 11 U.S.C. § 524(a)(2). To establish standing, a 

plaintiff must show (1) “a distinct and palpable injury”; (2) “a causal connection between 

the claimed injury and the challenged conduct”; and (3) “that the alleged injury is capable 

of being redressed by a favorable decision of the court.” ACLU v. Darnell, 195 S.W.3d 

612, 620 (Tenn. 2006). Ms. Khan argued that the Bank could not show “that the alleged 

injury [was] capable of being redressed by a favorable decision of the court[,]” because

the United States Bankruptcy Court for the Eastern District of 

Tennessee . . . granted Mrs. Khan (under her own name and 

under the name of the ‘Rafia N. Khan Irrevocable Trust’) a 

discharge of her debts pursuant to the federal Bankruptcy 

Code, at 11 U.S.C. § 727. 

Thus, according to Ms. Khan, the bankruptcy discharge injunction prevented enforcement 

of the arbitration award, which deprived the Bank of standing and deprived this Court of 

subject matter jurisdiction.5

 

4

Pursuant to this Court’s August 16, 2018 order, we take judicial notice of the briefs filed by the 

parties in Khan I, copies of which were provided by Ms. Khan in the present appeal.

5

“[W]hen a statute creates a cause of action and designates who may bring an action, the issue of 

standing is interwoven with that of subject matter jurisdiction and becomes a jurisdictional prerequisite.” 

Metro. Gov’t of Nashville v. The Bd. of Zoning Appeals of Nashville, 477 S.W.3d 750, 756 (Tenn. 2015) 

(quoting Osborn v. Marr, 127 S.W.3d 737, 740 (Tenn. 2004)). Here, the Bank’s ability to file a petition 

seeking confirmation of the arbitration award is created by statute. See Tenn. Code Ann. §§ 29-5-302(b), 
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In its reply brief, the Bank clarified that it was “not seeking to have this Court 

remand and order the Trial Court to confirm the arbitration award against Ms. Khan 

personally.” Instead, the Bank was only “asking the Court to remand the case to the Trial

Court with directions to confirm the final arbitration award and enter a judgment against 

the Trust.” Citing to case law and relevant provisions of the federal bankruptcy code, the 

Bank also attempted to refute Ms. Khan’s suggestion that the bankruptcy discharge 

shielded the Trust’s assets merely because Ms. Khan listed the Trust as an alternate name 

of the “debtor” on her bankruptcy petition. 

In our view, the Bank’s reply brief neither “abandon[ed] an argument advanced in 

[its principal] brief” nor did it “advance a new argument to support an issue in the reply 

brief.” See Denver Area Meat Cutters and Employers Pension Plan v. Clayton, 209 

S.W.3d 584, 594 (Tenn. Ct. App. 2006). The Bank did not “abandon” any arguments in 

support of its position that the arbitrator properly exercised his authority under the 

Federal Arbitration Act. Nor did the Bank offer any additional reasons why the arbitrator 

properly exercised his authority. Instead, the Bank merely responded to the additional

issue raised by Ms. Khan regarding the Bank’s standing to proceed with the appeal in 

light of the bankruptcy discharge injunction. An appellant’s reply brief may respond to a 

new issue raised by the appellee without violating Tenn. R. App. P. 27(c). See Goetz v. 

Autin, No. W2015–00063–COA–R3–CV, 2016 WL 537818, at *11 n.8 (Tenn. Ct. App., 

filed Feb. 10, 2016), perm. app. denied (Tenn. 2016). In responding to Ms. Khan, the 

Bank simply attempted to clarify the scope of its original claim for relief. Cf. Collins v. 

Sams East, Inc., No. W2017–00711–COA–R3–CV, 2018 WL 1299857, at *3 n.3 (Tenn. 

Ct. App., filed Mar. 13, 2018) (“Although reply briefs are not substitutes for initial briefs, 

we also note that Appellant clarifies his argument in his reply brief.”). Accordingly, the 

Bank’s brief was “limited in scope to a rebuttal of the argument advanced in the 

appellee’s brief[,]” and thus fully complied with Tenn. R. App. 27(c). Consequently, this 

Court did not err by sustaining the Bank’s argument on appeal.

Next, Ms. Khan argues that this Court committed clear error by coming to the 

substantive conclusion that the Court could exercise jurisdiction over the Trust “when 

‘the . . . Trust’ was not, in fact, a party to that appeal.” We expressly rejected this 

argument in Khan III:

Ms. Khan attempts to prove that the trial court lacked of 

personal jurisdiction over the trust by alleging that none of 

the pleadings in Khan I identified the “Rafia N. Khan 

Irrevocable Trust” as a party. We accept as a matter of fact

 

-312. Therefore, standing was a jurisdictional prerequisite. 
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that none of the previous pleadings identify “the Rafia N. 

Khan Irrevocable Trust” as a party. That fact, however, is 

insufficient as a matter of law to prove that the trial court 

lacked personal jurisdiction over the trust. “In most 

jurisdictions, a trust . . . cannot sue or be sued in its own 

name, and therefore, the trustee, rather than the trust, is the 

real party in interest in litigation involving trust property.” 76 

Am. Jur. 2d Trusts § 601 (West 2018). In Tennessee, for 

example,

[a] claim based on a contract entered into by a 

trustee in the trustee’s fiduciary capacity, on an 

obligation arising from ownership or control of 

trust property, or on a tort committed in the 

course of administering a trust, may be asserted 

in a judicial proceeding against the trustee in 

the trustee’s fiduciary capacity, whether or not 

the trustee is personally liable for the claim.

Tenn. Code Ann. § 35-15-1010(d) (2015); see also Rest. 

(Third) of Trusts § 105 (West 2012) (listing Tennessee as one 

of the many states which have adopted this “now-prevalent 

doctrine”). Here, Ms. Khan’s complaint specifically alleges 

that all prior pleadings were filed in the name of Rafia N. 

Khan, individually, and “as trustee of the Rafia N. Khan 

Irrevocable Trust.” Thus, the complaint alleges the very fact 

needed to assert jurisdiction over the trust. 

2018 WL 4566519, at *5 (emphasis in original). We reiterated this point in our order 

denying Ms. Khan’s petition for a rehearing:

Ms. Khan’s final argument relating to due process is also 

without merit. As we stated in Khan I and Khan III, the 

interests of the Rafia N. Khan Irrevocable Trust were 

adequately represented in Khan I because Ms. Khan brought 

her original suit in her name “individually, and as trustee.” 

Khan, 2018 WL 4566519, at *5; Khan, 461 S.W.3d 505, 509 

(Tenn. Ct. App. 2014). Because “the trustee, rather than the 

trust, is the real party in interest in litigation involving trust 

property,” the requirements of due process (i.e., notice and a 

fair hearing) were satisfied. See Khan, 2018 WL 4566519, at 

*5 (quoting 76 Am. Jur. 2d Trusts § 601 (West 2018)). 
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Consistent with our holding in Khan III, we hold that this Court did not commit clear 

error in Khan I by exercising jurisdiction over the Trust.

Because Ms. Khan has failed to show why this Court’s decision in Khan I was 

“clearly erroneous and would result in manifest injustice if allowed to stand,” we choose 

to apply the law of the case doctrine and therefore affirm the trial court’s order 

confirming the arbitration award. 

IV.

The final issue in this appeal is whether the trial court lacked subject matter 

jurisdiction to award the Bank attorney’s fees incurred during federal bankruptcy court 

proceedings. Tennessee courts follow the “American-Rule,” which provides that

a party in a civil action may recover attorney’s fees only if: 

(1) a contractual or statutory provision creates a right to 

recover attorney’s fees; or (2) some other recognized 

exception to the American Rule applies, allowing for 

recovery of such fees in a particular case.

Eberbach v. Eberbach, 535 S.W.3d 467, 474 (Tenn. 2017) (quoting Cracker Barrel Old 

Country Store, Inc. v. Epperson, 284 S.W.3d 303, 308 (Tenn. 2009)). In Eberbach, the 

Supreme Court explained that a prevailing party may request attorney’s fees pursuant to a 

contractual provision, a statute, or both.6 Id. at 477. “[W]hen confronted with a request 

for fees under both contractual and statutory authority, our courts should look to the 

parties’ contract first before moving on to any discretionary analysis under [relevant] 

statutes . . . .” Id. at 478. However, “[i]n cases in which parties seek an award of 

attorney’s fees under statutory authority alone, the statute governs the award of fees.” Id.

at 477.

In this case, the Bank moved the trial court “to award [the Bank] its attorney fees 

and costs pursuant to T.C.A. § 29-5-315.” In ruling on the Bank’s motion, the trial court 

also granted attorney’s fees “[p]ursuant to Tenn. Code Ann. § 29-5-315[.]” There is no 

evidence in the record that the Bank has ever requested an award of post-arbitration 

attorney’s fees pursuant to contractual provisions in the loan documents between the 

parties. Accordingly, we will only address whether the trial court had statutory authority 

to grant attorney’s fees incurred during federal bankruptcy court proceedings pursuant to 

 

6 Eberbach was a post-divorce case. The “contract” at issue was a marital dissolution agreement 

rather than an arbitration agreement. The statutes under consideration were Tenn. Code Ann. §§ 27-1-122 

and 36-5-103(c) rather than Tenn. Code Ann. § 29-5-315. Even so, we think the principles articulated by 

the Supreme Court in that case are applicable here.
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Tenn. Code Ann. § 29-5-315 (2012). See Tenn. R. App. P. 13(b) (“Review generally will 

extend only to those issues presented for review.”); Tenn. R. App. P. 36(a) (“Nothing in 

this rule shall be construed as requiring relief be granted to a party responsible for an 

error or who failed to take whatever action was reasonably available to prevent or nullify 

the harmful effect of an error.”). This is a question of law that we review de novo.7 

The Tennessee Uniform Arbitration Act (TUAA) confers jurisdiction on trial 

courts in this state “to enforce” arbitration agreements and “to enter judgment on an 

award[.]” Tenn. Code Ann. § 29-5-302(b). The TUAA does not expressly mention 

“attorney’s fees.” However, Tenn. Code Ann. § 29-5-315 provides that

[u]pon the granting of an order confirming, modifying or 

correcting an award, judgment or decree shall be entered in 

conformity therewith and be enforced as any other judgment 

or decree. Costs of the application, and of the proceedings 

subsequent thereto, and disbursements may be awarded by the 

court.

In this case, the trial court stated that it relied on Tenn. Code Ann. § 29-5-315 to 

grant the Bank attorney’s fees and costs incurred by the Bank “in enforcing, protecting 

and confirming” the arbitration award. This award included $28,321.13 against Ms. 

Khan individually, which, according to the trial court, was “based solely upon the 

attorney’s fees and costs incurred by Regions in defense of the adversary case filed by 

Rafia N. Khan after she was granted a discharge by the Bankruptcy Court.” Ms. Khan 

argues that Tenn. Code Ann. § 29-5-315 did not authorize the trial court to award 

attorney’s fees and costs incurred by the Bank in the collateral bankruptcy court 

proceedings. The Bank argues otherwise.

This presents a question of statutory interpretation. 

Our consideration of a question of statutory construction is 

without any deference to the trial court. See In re Estate of 

Tanner, 295 S.W.3d 610, 613 (Tenn. 2009). When 

addressing the interpretation of a statute, well-defined 

precepts apply. Colonial Pipeline, 263 S.W.3d at 836. “Our 

primary objective . . . is to carry out the intent of the 

legislature without unduly broadening or restricting the 

 

7 The Bank mistakenly asserts that we should review the trial court’s decision for abuse of 

discretion. The initial determination of whether a contract or statute “creates a right to recover attorney’s 

fees” is a question of law that we review de novo. See Eberbach, 535 S.W.3d at 479 n.7. If a contract or 

statute does create such a right, then the trial court has discretion (a) to determine whether to award 

attorney’s fees and (b) to determine the amount of any such award. See id. Here, we are concerned with 

the former question of whether the trial court had authority to grant attorney’s fees.
- 12 -

statute.” Nichols, 318 S.W.3d at 359–60. When a statute is 

clear, we apply the plain meaning without complicating the 

task, and simply enforce the written language. Abels ex rel. 

Hunt v. Genie Indus., Inc., 202 S.W.3d 99, 101–02 (Tenn.

2006) (quoting Calaway ex rel. Calaway v. Schucker, 193 

S.W.3d 509, 516 (Tenn. 2005)). When a statute is 

ambiguous, however, we may refer to the broader statutory 

scheme, the history of the legislation, or other sources to 

discern its meaning. Colonial Pipeline, 263 S.W.3d at 836.

Mansell v. Bridgestone Firestone North American Tire, LLC, 417 S.W.3d 393, 400 

(Tenn. 2013).

 

In addition to these general principles of statutory interpretation, the TUAA states 

that the act “shall be so construed as to effectuate its general purpose to make uniform the 

law of those states which enact it.” Tenn. Code Ann. § 29-5-320: 

It is axiomatic that a purpose in enacting uniform laws is to 

achieve conformity, not uniqueness. While opinions by 

courts of sister states construing a uniform act are not binding 

upon this court, we are mindful that the objective of 

uniformity cannot be achieved by ignoring utterances of other 

jurisdictions. This court should strive to maintain the 

standardization of construction of uniform acts to carry out 

the legislative intent of uniformity. This does not mean that 

this court will blindly follow decisions of other states 

interpreting uniform acts but, this court will seriously 

consider the constructions given to comparable statutes in 

other jurisdictions and will espouse them to maintain 

conformity when they are in harmony with the spirit of the 

statute and do not antagonize public policy of this state.

Wachtel v. Shoney’s, Inc., 830 S.W.2d 905, 909 (Tenn. Ct. App. 1991) (quoting Holiday 

Inns, Inc. v. Olsen, 692 S.W.2d 850, 853 (Tenn. 1985)).

In this case, the trial court clearly entered an “order confirming . . . an award[.]” 

See Tenn. Code Ann. § 29-5-315. The dispositive issue is whether the attorney’s fees and 

costs incurred by the Bank in collateral bankruptcy court proceedings constitute 

“disbursements” or “[c]osts of the application, and of the proceedings subsequent 

thereto[.]” See Tenn. Code Ann. § 29-5-315. These terms are not defined in the TUAA. 

In states that have adopted the Uniform Arbitration Act, a majority of courts that 

have addressed the issue have concluded that the aforementioned provision authorizes the
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award of attorney’s fees in proceedings to confirm an arbitration award.

8

 Tennessee

courts follow the majority rule.

9

 D & E Const. Co. Inc., 38 S.W.3d 513, 516 n.6 (Tenn. 

2001) (“A trial court has the discretion to award attorney’s fees incurred in postarbitration proceedings.”); Lasco, Inc. v. Inman Constr. Corp., 467 S.W.3d 467, 476 

(Tenn. Ct. App. 2015) (“remand[ing] to the trial court for entry of an order confirming 

the arbitration award and a determination of Appellants’ reasonable attorney’s fees 

incurred in the trial court and on appeal.”); Alison Group Inc. v. Ericson, 181 S.W.3d 

670, 676 (Tenn. Ct. App. 2005) (“[T]his Court and other jurisdictions have interpreted 

this provision of the Uniform Arbitration Act to permit an award of attorney’s fees.”);

Wachtel v. Shoney’s, Inc., 830 S.W.2d 905, 909-10 (Tenn. Ct. App. 1991) (affirming the 

trial court’s order granting attorney’s fees “incurred by plaintiffs in connection with the 

prosecution of their suit for confirmation of the arbitration award” and remanding for a 

hearing “to determine the amount of attorney[’s] fees to be awarded plaintiffs for work on 

the appellate level”). 

The parties have not cited, and we have not identified, a single case from any 

jurisdiction in which a state court has held that the UAA authorizes an award of

attorney’s fees incurred in federal bankruptcy court proceedings. At oral argument, the 

Bank conceded that its interpretation of the statute presents an issue of first impression, at 

least in this state. Nevertheless, the Bank argues that the plain language of the statute as 

well as the general purpose of the TUAA permit such an expansive interpretation.

The Bank emphasizes that the plain language of the statute permits recovery of 

“[c]osts of the application, and of the proceedings subsequent thereto[.]” (Emphasis 

added). Because the federal bankruptcy court proceedings occurred after the Bank’s 

application for confirmation of the award, the Bank argues that the trial court was 

authorized to award attorney’s fees incurred during those “subsequent” proceedings. 

According to the Bank, this result is consistent with the “broad construction” our courts 

have traditionally given to Tenn. Code Ann. § 29-5-315. 

The Bank also emphasizes that the purpose of awarding attorney’s fees in 

 

8 Anchorage Medical & Surgical Clinic v. James, 555 P.2d 1320, 1324 (Alaska 1976), overruled 

on other grounds by Ahtna, Inc. v. Ebasco Constructors, Inc., 894 P.2d 657, 662 (Alaska 1995); Canon

School District No. 50 v. W.E.S. Construction Co., Inc., 882 P.2d 1274, 1280 (Ariz. 1994); Driver v. SI 

Corp., 80 P.3d 1024, 1031 (Idaho 2003); Blitz v. Beth Isaac Adas Israel Congregation, 720 A.2d 912, 

918–19 (Md. 1998); County of Clark v. Blanchard Construction Co., 653 P.2d 1217, 1220 (Nev. 1982).

But see Inter’l Fed’n of Prof’l and Tech. Eng’rs, Local 153 v. Chicago Park Dist., 812 N.E.2d 407, 412 

(Ill. App. Ct. 2004); Terra West Townhomes, L.L.C. v. Stu Henkel Realty, 996 P.2d 866, 873 (Mont. 

2000).

9 We pause to note that some courts locate the authorization to award attorney’s fees in the term

“disbursements” rather than in the phrase “costs of the application, and of the proceedings subsequent 

thereto.” Tennessee courts, however, have not distinguished between the terms “costs” and 

“disbursements.”
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confirmation proceedings is “encouraging early payment of valid arbitration awards and 

the discouragement of non-meritorious protracted confirmation challenges.” Steer v. 

Eggleston, 47 P.3d 1161, 1166 (Ariz. Ct. App. 2002). According to the Bank, Ms. 

Khan’s decision to initiate an adversary proceeding against the Bank in federal 

bankruptcy court is the exact type of “non-meritorious protracted confirmation 

challenge[]” that Tenn. Code Ann. § 29-5-315 is designed to discourage. In addition, the 

Bank argues that a contrary interpretation “would emasculate the statute, permitting a 

litigant to escape the financial consequences of protracted litigation over an arbitration 

award simply by filing a collateral action.”

We are not persuaded by the Bank’s arguments. First, we do not think the plain 

language of the statute inexorably leads to the conclusion that “proceedings subsequent” 

to the application for confirmation of an award include collateral bankruptcy court

proceedings. Neither “subsequent” nor “proceedings” is defined in the TUAA. 

Therefore, we must give those words “their natural and ordinary meaning, without forced 

or subtle construction that would limit or extend the meaning of the language, except 

when a contrary intention is clearly manifest.” Tenn. Code Ann. § 1-3-105(b) (Supp. 

2018). 

 

In the legal profession, the word “subsequent” generally means: “occurring later; 

coming after something else.” Subsequent, Black’s Law Dictionary (10th ed. 2014). In 

terms of pure timing, there is no question that the bankruptcy court proceedings occurred

after the Bank filed its application for confirmation of the arbitration award. The Bank 

would have us stop there, but we must also ascertain the meaning of the word 

“proceedings.” In the legal profession, a “proceeding” generally refers to the “[t]he 

regular and orderly progression of a lawsuit, including all acts and events between the 

time of commencement and the entry of judgment.” Proceeding, Black’s Law Dictionary 

(10th ed. 2014). Even with this definition in mind, it is unclear whether “proceedings,” 

as used in Tenn. Code Ann. § 29-5-315, refers to “acts and events” that take place

collateral to activities in the trial court. Because of this ambiguity, “we may refer to the 

broader statutory scheme, the history of the legislation, or other sources to discern its 

meaning.” Mansell, LLC, 417 S.W.3d at 400.

 

Looking to the broader statutory scheme, the TUAA only identifies a handful of 

“proceedings” that relate to the confirmation of an arbitration award. Those proceedings

include: applications for the confirmation of an award, applications for the vacatur, 

modification, or correction of an award, and direct appeal from an order arising out of the 

aforementioned applications. See Tenn. Code Ann. §§ 29-5-312, -313, -314, 319. Under 

the TUAA, each “application” “shall be by motion and shall be heard in the manner and 

upon the notice provided by law or rule of court for the making and hearing of motions.” 

Tenn. Code Ann. § 29-5-317. This statutory scheme leads us to believe that the word 

“proceedings,” as used in Tenn. Code Ann. § 29-5-315, refers to the motions and 

hearings specifically identified in the TUAA that follow a party’s initial application for 
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confirmation of an arbitration award. In context, the word “proceedings” does not refer 

to any proceeding filed in any court at any time after the application for confirmation of 

an arbitration award.10

We agree with the Bank that the purpose of awarding attorney’s fees in 

confirmation proceedings is to encourage payment of arbitration awards and to 

discourage frivolous litigation. If the legislature thinks that this policy would be further 

served by authorizing the award of attorney’s fees incurred in collateral bankruptcy 

proceedings, it may pass such a statute. For the reasons discussed above, however, we do 

not think the legislature intended the TUAA to be such a statute.

Finally, the Bank’s concern about forum shopping is misplaced. In this case, Ms. 

Khan initiated the adversary bankruptcy proceeding after the trial court ruled in her favor 

and vacated the arbitration award. The award remained vacated throughout the 

bankruptcy court proceedings. From Ms. Khan’s perspective, she was not seeking an 

alternative forum to obtain a better outcome; she was simply asking the bankruptcy court 

to effectuate the trial court’s judgment by disallowing the arbitration award. 

Additionally, bankruptcy courts may now award attorney’s fees to the prevailing 

party in an adversary proceeding. Fed. R. Bankr. P. 7054(b)(2)(A) (amended Apr. 25, 

2014, eff. Dec. 1, 2014). Therefore, if a party does attempt to resist enforcement of an 

arbitration award by filing a non-meritorious adversary proceeding in bankruptcy court, 

the opposing party can request attorney’s fees from the bankruptcy court. Although this 

remedy was not available to the Bank at the time of the bankruptcy proceedings in this 

case, it should allay concerns about future forum shopping. In any event, our holding is 

not dependent on the availability of remedies in other courts; instead, our decision is 

rooted in the firmly-established principle that attorney’s fees may not be awarded in 

Tennessee absent contractual agreement, statutory authorization, or some other judiciallyrecognized exception to the “American Rule.” 

The Bank did not seek post-arbitration attorney’s fees pursuant to a contractual 

agreement. Because we have determined that the trial court lacked the statutory authority 

to award attorney’s fees incurred during federal bankruptcy court proceedings, we vacate 

the portion of the court’s order providing for such an award. Accordingly, the court’s 

order awarding attorney’s fees is hereby modified to include attorney’s fees incurred by 

the Bank in the trial court and on direct appeal but not attorney’s fees incurred by the 

Bank in federal bankruptcy court proceedings. 

 

10 For similar reasons, we also decline to construe the term “disbursements” so broadly as to 

include attorney’s fees incurred in collateral actions not specifically mentioned in the TUAA.
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V.

The judgment of the trial court is affirmed as modified. Costs on appeal are taxed 

fifty percent (50%) to the appellant, Rafia N. Khan, Individually, and in her capacity as 

Trustee of the Rafia N. Khan Irrevocable Trust, and fifty percent (50%) to the appellee, 

Regions Bank. The case is remanded for enforcement of the trial court’s orders as 

modified by this Court’s opinion, and for collection of costs assessed below.

________________________________

 CHARLES D. SUSANO, JR., JUDGE