IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

March 18, 2003 Session

ETHEL CARMICAL, ET AL.

v. 

MARY JANE KILPATRICK, ET AL.

An Appeal from the Chancery Court for Perry County

No. 3926 Timothy L. Easter, Judge 

No. M2002-00613-COA-R3-CV - Filed September 11, 2003

This is a challenge to an award of attorney’s fees in a partition action. The testatrix left 500 acres

of land in Perry County to her then-living heirs. Some of the heirs filed this action to partition and

sell the land. After several years, the land finally sold. The trial court awarded 10% of the sale

proceeds, approximately $100,000, as attorney’s fees for the three attorneys who provided legal

services in the partition action. One of the heirs now appeals that award, claiming that it was

excessive. The appellant filed neither a transcript of the proceedings nor a statement of the evidence

pursuant to Tennessee Rule of Appellate Procedure 24(c). We must affirm the trial court’s award,

because the issues raised by the appellant would require a review of the proceedings below, and

without a transcript of the trial proceedings or a statement of the evidence, we must assume that the

trial court properly exercised its discretion in light of the evidence.

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

HOLLY M. KIRBY,J., delivered the opinion of the court, in which W. FRANK CRAWFORD, P.J., W.S.,

and ALAN E. HIGHERS, J., joined.

John P. Cauley, Franklin, Tennessee, for the appellant, Mary Jane Kilpatrick.

Tommy E. Doyle, Linden, Tennessee, for the appellee, Ruth McCoy Heath.

Dan R. Bradley, Waverly, Tennessee, for the appellees, Ethel Carmical, Jesse L. McCoy, Howard

McCoy, and John J. McCoy. 
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OPINION

Lula McCoy died testate, leaving four tracts of land totaling 500 acres in Perry County. She

devised the land 25% each to her then-living children, John McCoy, Mary Jane Kilpatrick, and Ruth

McCoy Heath, and the other 25% to be divided equally among her deceased son’s three children,

Ethel Carmical, Howard McCoy, and Jesse McCoy. 

On December 14, 1998, four of the heirs -- Ethel Carmical, Jesse L. McCoy, Howard McCoy,

and John J. McCoy (collectively “Petitioners”) -- filed the lawsuit below seeking partition and sale

of the land. On November 3, 1999, Judge Jeffrey Bivens ordered that the property in question be

sold. In that order, Judge Bivens provided that the surveyor, auctioneer, and advertising expenses

would be paid from the sales proceeds. The order included no provision for the payment of

attorney’s fees.

On March 1, 2001, Judge Russell Heldman entered an order stating that the parties had

agreed upon a sale date on May 12, 2001. As provided in the order, the property sold on May 12,

2001. On May 14, 2001, attorney Tommy E. Doyle (“Doyle”), on behalf of his client

Defendant/Appellee Ruth McCoy Heath (“Heath”), filed a motion to confirm the sale and to approve

attorney’s fees. On May 30, 2001, Doyle filed a statement in support of his fee request, reflecting

that he had spent 91.40 hours on the partition suit. On June 28, 2001, Doyle submitted an affidavit

supporting his fee request. 

On July 12, 2001, Judge Heldman set the case for hearing on July 19, 2001, in order to

“determine all remaining disputed issues, including issues pertaining to fees and to what remaining

orders are appropriate for entry.” On July 23, 2001, the hearing was reset for August 20, 2001. Also

on that date, however, the trial court entered its order confirming the sale and approving attorney’s

fees and expenses. The order recited that the trial court had conducted a hearing on May 30, 2001,

and that its decision was based “on the pleadings and the proof and the statements made in this cause

and from the record as a whole.” In that order, the attorney’s fees were set at 10% from the proceeds

of the sale of the decedent’s property, or $104,124. 

Within one week after the July 23, 2001 order was entered, Defendant/Appellant Mary Jane

Kilpatrick (“Kilpatrick”) fired her attorney, Donald W. Schwendimann (“Schwendimann”). On July

30, 2001, Kilpatrick filed a pro se motion to continue the August 20, 2001 hearing for thirty (30)

days so that she could retain another attorney.

On August 20, 2001, the trial court entered an order “nunc pro tunc” to be effective on May

30, 2001, which stated that the trial court approved the sale of the property and the 10% award of

attorney’s fees. The order further provided that the attorney’s fee was “to be allocated among the

three attorneys, Don Schwendimann, Dan Bradley, and Tommy E. Doyle, according to the time

expended and the type of work, to be determined by the Court after consideration of sworn affidavits

of time and expenses expended by the respective attorneys . . . .” 
1

After those motions were filed, the attorneys for the other parties both filed motions requesting that Kilpatrick

be ordered to pay all future attorney’s fees and costs on behalf of all the parties in the lawsuit. In addition, Doyle filed,

on behalf of Heath, filed a motion to hold Kilpatrick in contempt for refusing to close the real estate transaction and for

contacting other purchasers and encouraging them not to close. Those motions were denied. 

2

Though it is asserted that the motion was hand-delivered to opposing counsel on October 15, 2001, there is

no explanation in the record for the reason that the motion was untimely filed. 

-3-

On August 29, 2001, Kilpatrick’s new attorney filed his notice of appearance. On that same

date, the newly retained counsel filed, on Kilpatrick’s behalf, a “Motion to be Heard on the

Reasonableness of the Attorney’s Fee,” and a “Motion to Rehear” the decision regarding the setting

of attorney’s fees.

1

On September 17, 2001, the trial court entered an order on Kilpatrick’s motion to set aside

attorney’s fees and for a continuance, stating that the attorney fee award previously approved by the

court on July 23, 2001, should be divided equally between the three attorneys in the case, Doyle,

Schwendimann, and Dan R. Bradley (“Bradley”). The trial court also permitted Schwendimann to

withdraw, but noted his lien for the one-third share in the attorney’s fees. Finally, the trial court

denied Kilpatrick’s request for a continuance. Another order was issued on September 17, 2001,

stating that it would stay the other September 17, 2001 order, noted above, pending any motion to

reconsider, alter, or amend pursuant to Tennessee Rule of Civil Procedure 59, “if the same is timely

filed.”

On October 16, 2001, Doyle filed a Rule 59 motion to alter or amend the September 17, 2001

order to the extent that it divided the attorney’s fees equally between counsel. He submitted his

affidavit to the trial court noting that he had practiced law for approximately twenty-nine years and

had handled numerous partition suits. He stated that “[i]t has been the practice of the Court to

approve a ten (10) percent fee in a typical partition suit and more in complicated and time consuming

partition suits.” Doyle asserted that he had done 70% of the legal work in the instant partition action

and therefore deserved that same share of the fees awarded. In addition, Doyle submitted the

affidavit of attorney Billy Townsend (“Townsend”), who stated that he had been practicing real

estate law for thirty-four (34) years. He opined that “[t]he traditional attorney fee allowed in

partition lawsuits in this circuit has been 10% of the sales price; although, in complex proceedings,

the Courts have allowed greater amounts.” Townsend said that he had reviewed the file, and was

of the opinion that Doyle had done 70% of the legal work on the partition action in this case, and

should receive that proportion of the fees awarded. Doyle’s motion was set for hearing on November

26, 2001.

On November 26, 2001, Kilpatrick filed an untimely Rule 59 motion to alter or amend the

judgment. She submitted her own affidavit in support of her motion.2 In her affidavit, Kilpatrick

asserted that her oral fee arrangement with Schwendimann was based on an hourly rate of $100 per

hour, and that Schwendimann never indicated to her that their arrangement would change when the

decedent’s estate was closed. She claimed in her affidavit that the net result of the arrangement
3

Kilpatrick calculated that rate by dividing the fee award ($104,124) by three, because Schwendimann was

initially awarded one third, and then divided that amount by 95, which were the hours he claimed he worked on the

partition action ($34,708/ 95 hours). 

4

Schwendimann was initially retained by Kilpatrick in 1998 to represent her in a dispute regarding money that

Kilpatrick took from her mother’s bank account after her death. Schwendimann explained in his affidavit that Kilpatrick

certainly understood that, although he charged an hourly rate for the “bank account case,” he would get paid out of the

sale proceeds for his involvement in the partition action. He said that her understanding was illustrated by the fact that,

when she met with Schwendimann, Kilpatrick would ensure that he was not “running the clock,” i.e. billing her the

regular hourly rate, for their time spent discussing matters pertaining to the partition. 

-4-

approved by the trial court would effectively be an hourly rate to Schwendimann of $365 per hour.3

Kilpatrick asserted that, had she known in the beginning that Schwendimann would be paid that

much money, she would have retained other counsel or foregone counsel entirely. Because the fees

awarded were “clearly excessive,” she asserted, the trial court should reconsider and amend the 10%

fee award. 

On December 7, 2001, Schwendimann, individually, and Bradley, on behalf of his clients,

moved to strike Kilpatrick’s Rule 59 motion as untimely. The motion was accompanied by

Schwendimann’s affidavit, in which he stated that he “distinctly remember[ed] telling Mrs.

Kilpatrick that in a partition suit the Court would award a fee based on a percentage of the sale

proceeds,” and that Kilpatrick understood that to be the case.4

 On December 12, 2001, Kilpatrick

moved to strike Schwendimann’s motion and affidavit because he was not a party to the lawsuit. 

Also on that date, Kilpatrick filed a motion to set for a hearing her motion to alter or amend the

attorney’s fees award. 

On December 18, 2001, Judge Heldman denied Kilpatrick’s Rule 59 motion as untimely. 

In addition, he vacated that portion of the September 17, 2001 order that required the 10% attorney’s

fee to be divided equally, and set the issue regarding the appropriate distribution of the 10% fee for

a hearing on February 4, 2002. On February 1, 2002, Schwendimann filed a motion to intervene in

order to assert his right to the one-third portion of the attorney’s fees previously awarded to him. 

On February 4, 2002, Judge Easter conducted a hearing in accordance with Judge Heldman’s

December 18, 2001 order. The only issue addressed at the hearing was Doyle’s Rule 59 motion to

alter or amend in which he asserted that he was entitled to 70% of the attorney’s fees awarded. On

February 8, 2002, Judge Easter entered an order making the following findings:

1. That the Order entered by Chancellor Heldman on July 23, 2001, ordering

and decreeing that the attorney’s fees and expenses will be ten percent (10%)

of the purchase price in the amount of $104,123.93 . . . is a reasonable fee

given the complex and complicated nature of this partition suit. The suit is

further complicated in that it involves four separate tracts of land and

covering over 500 acres of Perry County;
5

On June 12, 2002, Heath filed a motion to dismiss Kilpatrick’s appeal because of her failure to file with this

Court a transcript of the proceedings below or a statement of the evidence. On June 26, 2002, this Court denied that

motion. On July 2, 2002, Heath filed a motion to rehear, which was denied on July 9, 2002. 

-5-

2. That the ten percent (10%) fee ordered by Chancellor Heldman is not

excessive, within the fees for legal services standard set forth at S.Ct. R. 8,

DR 2-106(B). The record supports that a lawyer of ordinary prudence would

not be left with a definite and firm conviction that this fee is in excess of a

reasonable fee. This Court has considered the factors set forth at DR 2-

106(B) as a guide in determining the reasonableness of this fee and concludes

that factors (1), (3), (4), (5) and (7) are supported by the record;

* * *

9. That after reviewing the entries made on each of the attorney’s statement of

time and estimated statement of time, it is clear that Attorney Doyle

dispensed more time, labor and involvement in this matter than Attorneys

Bradley and Schwendimann; 

10. That T.C.A. §9-27-121 permits this Court, in its discretion, to order the fees

of the attorneys for the complainant and defendant to be paid out of the

common fund, where the property is sold for partition, and taxed as costs in

cases where the property is partitioned in kind.

The court then ordered that Doyle was entitled to 50% of the attorney’s fees, and that Schwendimann

and Bradley would split equally the remaining 50%. Thus, the trial court held that the total amount

of attorney’s fees awarded — 10% of the purchase price ($104,124) — was not excessive, was

consistent with the Supreme Court disciplinary guidelines, and was supported in the record, and that

Doyle was entitled to half of those fees. Kilpatrick now appeals that order.5

On appeal, Kilpatrick does not challenge the trial court’s apportionment of the fees among

Schwendimann, Doyle, and Bradley. Rather, she challenges the trial court’s total award of 10% of

the purchase price of the sale of the land, $104,124, as being excessive under the circumstances. She

argues that the trial court’s adherence to the local custom of awarding attorney’s fees on a

contingency basis should not have been followed in this instance. Setting 10% of the sales price as

being a reasonable fee, she claims, “begged the question” as it related to the determination of a

reasonable fee. Kilpatrick argues that the trial court should have scrutinized the services rendered

by each attorney and should have compensated them on a quantum meruit basis. Appellee Heath

argues that the appellate court cannot adequately reviewthe trial court’s decision regarding the award

of fees because Kilpatrick filed neither a transcript of the relevant proceedings nor a statement of the
6

That Rule provides in pertinent part:

If no stenographic report, substantially verbatim recital or transcript of the evidence or proceedings

is available, the appellant shall prepare a statement of the evidence or proceedings from the best

available means, including the appellant’s recollection. The statement should convey a fair, accurate

and complete account of what transpired with respect to those issues that are the bases of appeal.

Tenn. R. App. P. 24(c).

7

The other appellees, Ethel Carmical, Jesse L. McCoy, Howard McCoy, and John J. McCoy filed a brief in this

matter adopting the arguments made by Heath. Therefore, any conclusions we reach in this appeal with respect to Heath

applies equally to the other appellees. 

8

That statute provides:

The court may, in its discretion, order the fees of the attorneys for the complainant and defendant to

be paid out of the common fund, where the property is sold for partition, and taxed as cost in cases

where the property is partitioned in kind.

Tenn. Code Ann. § 29-27-121 (2000).

-6-

evidence in accordance with Rule 24(c) of the Tennessee Rules of Appellate Procedure.6

 Heath also

contends that Kilpatrick should be precluded from challenging the fee award at this juncture because

her Rule 59 motion to alter or amend was untimely filed. Assuming, however, that Kilpatrick is not

procedurally barred from raising this issue, Heath maintains that the trial court’s total award of fees

in the amount of 10% of the purchase price of the land was proper.7 She argues that there is

sufficient evidence in the technical record to support the trial court’s ruling, and that the trial court

was not restricted to basing attorney’s fees on a strict quantum meruit determination. 

Because this court has appellate jurisdiction only, “our review power is limited to those

factual and legal issues for which an adequate legal record has been preserved.” Trusty v. Robinson,

No. M2000-01590-COA-R3-CV, 2001 WL 96043, at *1 (Tenn. Ct. App. Feb. 6, 2001). Therefore,

if our review of a particular issue depends on review of proceedings below that are not included in

the records filed with this court, the issue cannot be considered on appeal. Id. at *4. 

Generally, the award of attorney’s fees is largely in the discretion of the trial judge, and the

trial court’s determination will not be disturbed unless the evidence preponderates to the contrary.

Barnhill v. Barnhill, 826 S.W.2d 443, 456 (Tenn. Ct. App. 1991); Chaille v. Warren, 689 S.W.2d

173, 179 (Tenn. Ct. App. 1985). Under Tennessee Code Annotated § 29-27-121, in a partition

action, the trial court, in its discretion, may order the attorney’s fees to be paid out of the common

fund.8

 If it is determined that the fees will be paid out of the common fund, the trial court then must

fix an amount of fees for the attorneys of the parties in accordance with the principles generally

applied in the determination of reasonable attorney’s fees. Montgomery v. Hoskins, 432 S.W.2d
9

The disciplinary rule provides:

DR 2-106. Fees for Legal Services.

(A) A lawyer shall not enter into an agreement for, charge, or collect an illegal or clearly excessive

fee.

(B) A fee is clearly excessive when, after a review of the facts, a lawyer of ordinary prudence would

be left with a definite and firm conviction that the fee is in excess of a reasonable fee. Factors to be

considered as guides in determining the reasonableness of a fee include the following:

(1) The time and labor required, the novelty and difficulty of the questions

involved, and the skill requisite to perform the legal service properly.

(2) The likelihood, if apparent to the client, that the acceptance of the particular

employment will preclude other employment by the lawyer.

(3) The fee customarily charged in the locality for similar legal services.

(4) The amount involved and the results obtained.

(5) The time limitations imposed by the client or by the circumstances.

(6) The nature and length of the professional relationship with the client.

(7) The experience, reputation, and ability of the lawyer or lawyers performing the

services.

(8) Whether the fee is fixed or contingent.

Tenn. Sup. Ct. R. 8, DR 2-106.

-7-

654, 655 (Tenn. 1968).9

 The appropriate factors to be used as a guide in fixing a reasonable

attorney’s fee are substantially those listed in Supreme Court Rule 38, Code of Professional

Responsibility D.R. 2-106. See Connors v. Connors, 594 S.W.2d 672, 676-77 (Tenn. 1980). The

reasonableness of an award depends on the facts of each case. Fell v. Rambo, 36 S.W.3d 837, 853

(Tenn. Ct. App. 2000).

In this case, the July 23, 2001 order is the order in which the trial court first stated that the

total attorney’s fee award would be an amount equal to 10% of the proceeds of the sale. In this

order, the trial court did not specify the factors on which it relied in making that decision, other than

a general overall comment that its ruling was based “on the pleadings and the proof and the

statements made in this cause and from the record as a whole.” Later, in its February 4, 2002 order,

the trial court reaffirmed its earlier order, finding that the 10% fee was “reasonable given the

complex and complicated nature of this partition suit.” In that order the trial court further stated that

“the ten percent (10%) fee ordered by Chancellor Heldman is not excessive, within the fees for legal

services standard set forth at S. Ct. R. 8, DR 2-106(B).” The trial court specified that, using
-8-

Tennessee Supreme Court Rule 8, DR 2-106(B) as a guide to determine the reasonableness of the

fee awarded, factors (1), (3), (4), (5), and (7) were supported by the record. 

The factors in D.R.2-106 enumerated by the trial court in its February 4 order as “supported

by the record” pertained to the time, labor, and skill required to perform the legal service and the

novelty and difficulty of the issues involved (factor (1)), the fee customarily charged in the locality

for similar services (factor (3)), the amount involved and the results obtained (factor (4)), the time

limitations imposed by the client or the circumstances (factor (5)), and the experience, reputation,

and ability of the lawyers (factor (7)). In order to review whether the evidence preponderated against

the trial court’s conclusion that those factors were supported in the record, it is necessary to review

the evidence on which the trial court relied in reaching its decision. This would, of course, include

the evidence presented to the trial court at the hearings on this issue, as well as objections made at

those hearings, and the trial court’s overall exercise of its discretion in the matter. As indicated

above, however, Kilpatrick submitted neither a transcript of the proceedings below nor an approved

statement of the evidence pursuant to Rule 24(c) of the Tennessee Rules of Appellate Procedure.

Under the circumstances, where review of the transcript or a statement of the evidence is necessary

to our review, “we have no alternative” but to affirm the trial court’s decision on this issue. Trusty,

2001 WL 96043, at *4 (finding that, in the absence of a transcript or a statement of the evidence, the

court must affirm the trial court’s conclusion when alleged errors are not reflected in the technical

record); Sherrod v. Wix, 849 S.W.2d 780, 783 (Tenn. Ct. App. 1992) (stating that, without an

appellate record containing the facts, this court must assume that the record, had it been preserved,

would have supported the trial court’s factual findings).

The record before us indicates that trial court gave due consideration to the applicable

disciplinary rules and related case law in reaching its conclusion. Thus, without a complete record

of the evidence we must assume that the trial court did not abuse its discretion in applying the

applicable law to the evidence before it. Our holding pretermits any other issues raised in this

appeal.

The decision of the trial is affirmed. Costs are to be assessed to the appellant, Mary Jane

Kilpatrick, and her surety, for which execution may issue, if necessary.

 

___________________________________ 

HOLLY M. KIRBY, JUDGE