### 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 Septem ber 11, 2003
This is a challenge to an award of a ttorney’s fees in a partition action. The testatrix left 500 acres of land in Per

ry County to her the n-living heirs. Som

e of the heirs filed this action to partition and sell the land. After several y ears, the land finally

sold. The trial co urt awar ded 10% o f the sale procee ds, approxima

tely $100,000, as attorn

ey ’s feesfor the th

ree atto rney s w ho provided legal services in the partition action. One of the heirs now appeal s 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 a ppellant would require a review of the pr oceed ings below, and withouta transcript of the trial proceedings or a statement of the evidence, wemust 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
H OLLY M. K IRBY , J., delivered the opinion of the cour t, in w hich W. F RANK C RAWFORD , P.J., W.S., and A LAN E. H IGHERS , J., joined. John P. Cauley, Franklin, Tennessee , for the appellant, Mary Jane Kilpatrick. Tommy E. Doy

le, Linden, Tennessee, f

or the appellee, Ruth McCoy Heath.
Dan R. Bradley , Waverly, Tenne ssee, for the appellees, Ethel Carmical, Jesse L. McCoy , Howard McCoy, and John J. McCoy

.-2- OPINION Lula McCoy died testate, lea

ving four tracts of

land totaling 500 acres in Perry County. She devisedthe land 25% each to her then-living children, John McCoy , Mary Jane Kilpatrick, andRuth McCoyHeath, 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 Mc Co y, andJohn J. McCoy (collectively “Petitioners”) -- filed

the lawsuit below seeking partition and sale of the land. On Novemb er 3, 199 9, Judge Jef frey Biv ens ord ered that the property in question be sold. In that order, Judge Bive ns provided that the survey or, auctioneer, and advertising expenses would be paid from the sales proceeds. The orde r included no provision for th e payment of attorne y’ s fees. On March 1, 2001, Judge Russell Heldman entered an order st ating that the parties had agreed upon a sa

le date on May 12, 2001. As provided in the or der, the property sold on May 12, 2001. On May 14, 2001, attorne y Tommy

E. Doyle (“Doyle”), on be ha lf of his cl ient Defendant/Appellee

Ruth McCoy Heath (“Heath”), filed a motion to confirm the sale and to approve attorne y’ s fees. On May 30, 2001, Doy le 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, D oyl e submitte d an aff idavit supporting his fee request. On July 12, 200 1, Ju dge Heldman s et the ca se for he aring o n July 19, 2001, in order t

o “determine all rema

ining dis puted issu es, including issues pertaining to fees and to what remaining orders are appropriate for

entry.” On July

23, 2001, the hearing was reset for A ugust 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, andthat its decision was based “on the plea dings and the proo f and the statemen ts made in this caus e andfrom the r

ecord a s a whole.” In that order, the attorney’s f

ees were set at 10% from

the proceeds of the sale of the decedent’s property , or $104,124.
Withinone week after the July 23, 2001 order was entered, Defendant/Appellant Mary Jane Kilpatrick

(“Kilpatrick”) fired her attorney , Donald W. Schwendimann (“Sc hwendima

nn”). On July 30, 2001, Kilpatrick filed a pro semotion to continue the August 20, 2001 hearing for thirt y (30) da ys s o t ha t s he co ul d r et ai n a no th er at to rn ey. 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 prope rt y and the 10% award of attorney’sfees. The order further provided that the attorney ’s fee was “to be allocated among the three attorneys, Don S c hwendima nn, Dan B radley , and Tommy E. Doy le, acc ording t

o the time expended and the type of w ork, to be determined by the Court after consideration of sworn af fidavits of time and expenses expended by the r espective attorney s . . . .”1 After those motions were f

iled, the at

torney s for t

he other parti es both f

iled motions request ing t hat Kil patri ck be ordered to pay all fut ure attorne y’s fees and costs o n beh alf of all the p arties in the laws uit . I n addi ti on, Doyl e fi led, on behal f of

Heath, fi led a moti on to h old Kil patr ick in c ontempt forref usi ng t o clos e th e real

est ate tra nsac ti on and f or con tacting o ther pu rchas ers and enco uragin g them not to c lose. T hose motio ns were denie d.

2 Though it i s asse rted t hat t he motion wa s hand- delive red to oppos ing couns el on October15, 2001, there is no ex plana tion in the reco rd for the rea son tha t the mo tion wa s untime ly filed. -3- On August 29, 2001, Kilpatrick’s new attorney filed his notice

of appea rance. On that sa

me date, the newly re

tained counsel filed, on Kilpatrick’s behalf, a “Motion to be Heard on the Reasona bleness of the Attorney’ s Fee,” and a “Motion to Rehear” the decision regarding the setting of attorn ey ’s fees

. 1
On September 17, 2001, the trial court entered an order on Kilpatrick’s motion to set aside attorney’sfees and for a continuance, stating that the attorney

fee award previously

approved by the court on July 23, 2001, s hould be d

ivided eq ually betwee n the three attorney s in th e case, Doyle, Schwendimann, and DanR. Bradley (“Bradley”). The tria

l court a lso permit

ted Schwe

ndimann to withdraw, but noted his lien for the one-third share in the attorney ’s fees. Finally , the trial court deni ed Ki lpatrick’s request for a continuance. Another order was issued on September 17, 2001, stating that it would stay

the other Septembe

r 17, 2001 order, noted abov e, pending any motion to reconsider, alter, or amend pursuant to Tennessee Rule of Civil Procedure 59, “if the sa me is timely filed.”
On October

16, 2001, D oyl e filed a Rule 59 motion to alter or amend the September 17, 2001 order to the exten

t that it divided the a

ttorney ’s feesequally

betwee n counsel. He submi

tted his affida vit to the trial court noting that he had practiced law f or approximately twenty-nine yea rs and hadhandled numerous pa r tition suits. He state d that “[i]t ha s been the practic e of the Co

urt to approve a ten (10 ) perce

nt fee in a typical par

tition suit and more in complicated and time consuming partition suits.” Doyle

asserte d that he h ad done 7 0% of the legal w ork in

the instant partition action andtheref

ore dese rved tha t same sha

re of the fees a ward ed. In addition, Doy le submitted the affida vit of attorney B illy Townsend (“ Townsend”), who stated that he had been practicing real estate law for thirty-f

our (34) years. H e opined t hat “[t]he t

raditiona l attorne y f ee allow ed in partition lawsuits in this circuit has been 10% of thesales pr ice; although, in

complex pr

oceedings, the Courts have allowed

greater amounts.” Townsend said that he had reviewed the file, a nd was of the op inio n that Doyle had done 7 0% of t he lega l work on th e partition action in this case, and should receive that proportion of the fees awa rded. Doyle’s motion was set for hearing on November 26, 2001. On November 26, 2001, Kilpatrick filed an untimely Rule 59 moti on to alter or amend the judgmen t. She submitted her own affidavit in support of her motion. 2 In her affida vit, Kilpatrick asserted that her oral fee arrang ement with Schwendimann was based on an hourly rate of $100 per hour, and that Schwendimann never indicated to her that their ar range ment would

change when the decedent’s est ate w as closed. She claimed in her affidavit that the net result of the a rrangement3 Kilpatr ick calculated that rate by dividi ng the fee award ($104,124) by thre e, becaus e Schwendimann was initially awarded one third, and then divided that amount by 95, which were t he hours he claimed he worked on the partitio n actio n ($3 4,70 8/ 95 hour s).

4 Schwendimann was init ially retained by Kilpatri ck in 1998 to represent her in a dispute r egarding money tha t Kilpatr ick took fr om her mother’s bank account after her death. Schwendimann explai ned in hi s aff idavit that Kilpatrick certain ly unde rstoo d that, alth ough he cha rged an ho urly rate forthe “bank accoun t ca se, ” he wou ld ge t pai d out of the sale proceeds for his involvement i n the partition action

. He said tha t her und erstand ing was illustrated by the fac t that, when she me t wi th Sc hwendi mann, Kilpa tri ck woul d ensure t hat he wa s not “running the clock,” i. e. bill ing her the regula r hou rly rate, for th eir time sp ent disc ussing m atters p ertaining to the p artition. -4- approved by the trial court would e ffectively be an hourly r

ate to Schwendimann of $365 per hour. 3 Kilpatrick

asserted that, had she known in the beginning tha t Schwendimann would be paid that much money, she would have retained other counsel or foreg one 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 Bra dley, on behalf of

his client s, moved to strike Kilpatrick’s Rul e 59 motion as untimely. The motion was acc ompanied by Schwendimann’s affi davi t, in w hich he sta ted th at he

“dist inctl y r emem ber[ed] telling Mrs. Kilpatrick

that in a p artiti on suit the Court woul d award a fee ba sed on a p ercent age of the sale proceeds,” and that

Kilpatrick understood that to be the case. 4 On December 12, 2001, Kilpatrick moved to strike Schwendiman n’s mo tion and affidavit because he was not a party to the lawsuit. Also on that date, Kilpatrick filed a motion to set for a hearing he r motion to alter or amend the attorney’s f

ees award.
On December 18, 2001, Judge Heldman deni ed Ki lpatrick’s Rule 59 motion as untimely. In addition, he vacated that portion of theSeptember 17, 2001 order that required the 10% attorney’ s fee to be divided equally, and set the issue regarding the appr opriate distribution of the 10% fee for a hearing on February

4, 2002. On Febr

uary 1, 2002, Schwendima

nn filed a motion to int

ervene in o rder to assert his right to the one-third portion of the attorney ’s fees previously awarded to him.
On February

4, 2002, Judg e Easter

conducted a hear

ing in accordance with Judge Heldman’s December

18, 2001 order. The only issue addressed

at the he aring w as Doy

le’s Rule 59 motion to alter or amend in whichhe asserted that he was entitled to 70% of the attorney ’s fees awarded. On Februa ry 8, 2002, Judg e Easter

entere d an orde

r making the following find

ings:
1. That

the Order entered by

Chanc ellor Hel dman on July 23, 2001, ordering anddecreeing that the attorney ’s fees and expenses will be ten percent (10%) of the purchase price in the a mount of $104,123.93 . . . is a reasonable fee giventhe complex and complic ated nat ure of th is partition suit. The

suit is further complicated in that it inv olves four separate tracts of land and co ve ri ng ov er 50 0 a cr es of Pe rr y Co un ty;5 On June 12, 2 002 , Hea th filed a m otion to dism iss Kilp atrick’s appea l because of her fa ilure to file w ith this

Court a transc ript of the pro ceed ings be low o r a statem ent of t he evid ence . On June 26, 2002, thi s Court deni ed that motio n. On July 2, 2 002 , Hea th filed a m otion to rehe ar, whic h was d enied on Ju ly 9, 20 02. -5- 2. That

the ten pe

rcent (10% ) fee ordered by Chancellor Heldman is not excessive, within the

fees fo r lega l ser vices standard set forth at S.Ct. R. 8, DR 2-106(B ). The re

cord supp orts that a

lawyer of or

dinary prudenc e would notbe left with a definite and firm conviction tha t this fee is in excess of a reasona ble fee. This Court ha s consider ed 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 oneach of the attorney ’s statement of time and estimatedstate ment of tim e, it is cle ar that A

ttorney Doyle dispens edmore time, labor and involvement in this matter than Attorne y s Bradle y a nd Schwendimann;
10. That T.C.A. §9-27-121 permits this Court, in its discretion, to order the fees of the attor ney s for the

complain ant a

nd de fendant to be paid out of the common fund, whe

re the pr operty is sold for par tition, and

taxed as c osts in cases where the property

is partitioned in kind. The court then ordered that Doy

le was entitled to 50% of the attorney ’s fees, and that Schwendimann andBradley

would split equally the remaining 50%. Thus, the trial court held that the total amount of attorne y’ s fees a w arded — 10% of the purchase price ($104,124) — was not excessive, was consistent with the Supreme Court

disciplinary g

uidelines, and was supported in the record, and that Doyle was e

ntitled 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’stotal 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 co ur t’s adherence to the local custom of awar ding attorney ’s fees on a contingency

basis should not have been followed in this instance. Setting 10% of the sales price as being a re asonable fee, she claims, “beg ged the question” as it related to the determination of a reasonable fee. Kilpatrick argues that the trial court should have scr utinized the services rendered by each attorney

and should have com

pensated them on a quantum m eruit basis. Ap

pellee Heath argues that the appellate court cannot adequately rev iew the tria

l court’s decision regarding the award of fees because Kilpatrick filed neither a transcript of the relevant proce edings nor a statement of the6 Th at Rule pro vides in pertin ent pa rt:
If no sten ogra phic re por t, subs tant ial ly verba ti m reci tal or t rans cri pt of the evi dence or

proceedings i s availab le, the ap pellan t shall pre pare a statem ent of the evide nce o r pro ceed ings from th e bes t availab le means, including t he appellant’s r ecollection. The statement should convey a fair, accu rate and com plete a cco unt of wh at transp ired w ith respe ct to tho se issues th at are the base s of ap pea l. Tenn. R. App . P. 24(c).

7 The other a ppe llees, E thel Ca rmica l, Jesse L . M cCo y, Howard M cCoy, and John J. McCo y fi led a bri ef in this matter adopting the arguments made by Heath. Therefore, any concl usions we reach i n thi s appeal with resp ect to H eath app lies equ ally to the o ther ap pellee s.

8 Tha t statute provides:
Th e cou rt may, in its di scretion, order t he fees of the attorneys f or the complainant and defendant to be paid out of the com mon fund, wh ere the pro perty is so ld for p arti tio n, and t axed as cost in cas es where the propert

y i s par ti ti oned i n ki nd.
Tenn. Cod e Ann. § 29-27-121 (2000). -6- evidence in accor

dance with Rule

24(c) of theTennessee Rules of Appellate Procedure. 6 Heath a lso contends that Kilpa

trick shouldbe prec luded fr om challe nging the fee award a t this juncture

because her Rule 59 motion to alter or amend was untimely filed. Assuming, howeve r, that Kilpatrick is not procedu rally barred from rai sing thisissue, Heath maintains that the trial court’s total award of fees in the amount of 10% of the purchase price of the la nd was proper. 7 She argues that there i s sufficient evidence in the technical record to support the trial court’s ruling, and

that the trial court was not re stricted

to basing attorne y’ s fees on

a strict quantum m eruit

determination.
Becau se this cour t has appe llate jur isdiction o nly , “our re

view powe

r 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 o f proce edings b elow that are not included in the records filed with this court, the issue cannot be considered on a ppeal. Id. at *4. Ge ne ra ll y, the award

of attorney’ s fees is largely in the discretion of the trial judge, and the trial court’sdetermin ation will not be disturbed unless the evidence pr ep on de ra te s t o t he co nt ra ry. 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 pa id out of the common f

und, the tr ial cour t then must fix an amount

of feesfor th e attorn ey s o f the par ties in ac cordanc e with the principle s gene

rally appliedin t he determ ination of reasonable attorney ’s fees. Montgomery v . Hoskins , 432 S.W.2d9 The disciplinary rule provid es:
DR 2-10 6. Fees fo r Leg al Serv ices. (A) A la wye r s hal l n ot e nt er i nt o an a gre eme n t for, charge, or collect an il legal or clearl y excessive fee. (B) A fee is c learly excessi ve when, aft er a revi ew of the fact s, a l awyer of ord inary pr ude nce w ould be lef t wit h a defi nit e and fi rm convict ion th at the fee i s in excess of a reasonable fee. Factors to be considered as guides in determini ng the reasonableness of a f ee include the f

ollowing: (1) The ti me and l abor re quir ed, t he novelty and diff iculty of the questi ons involv ed, an d the sk ill requisite to perfo rm the legal ser vice p rop erly. (2) The li keli hood, i f appa rent to t he cl ient , that the accept ance of the part icul ar employment will preclude other employment by t he lawyer. (3) T he fee custom arily charged in the loca lity f or similar legal services. (4) The a mountinv olved and t he re sul ts obtai ned. (5) T he time limitations impose d by the client or by the circu mstances. (6) T he natu re and length o f the pro fessiona l relation ship with the client. (7) The experience, reputation, and ability of the l awyer or lawyers perf orming the services. (8) W hether the fee is fixed or co ntingen t.
Tenn. Su p. Ct . R. 8, DR 2-106.

-7- 6 54, 655 (Tenn. 1968). 9 The appropriate factors to be used as a guide in fixing a re asonabl e attorney’sfee ar

e substan tially those li sted in Supreme Court Rule 38, Code of Professional Responsib ility

D.R. 2-106. See Connors v. Connors , 594 S.W.2d 672, 676-77 (Tenn. 1980). The reasona bleness 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 at to rn ey’ s fee aw ard woul d be an a mount equa

l to 10% of

the proc eeds of t

he sale. In thi s order, the trial court did not specify the factors on which it relied in making that decision, other than a gen eral overall comment that its ruling was based “on the ple adings and the pro of and th e statemen ts made in th

is cause and from the record as a whole.”Later, in its Februar y 4, 2002 order, the tr ial court reaffirmed its earlier order , finding that the 10% fee was “rea sonable given the complex and complicated nature of this partition sui t. ” In that order the trial court further stated that “the ten percent (10%) fee orde red by Chancellor Heldman is not e xcessive, within

the fees for legal services standard set forth at S. Ct. R. 8, DR 2-106(B).” The tri al co urt specified that, using-8-

Tennessee Supreme Court Rule 8, DR 2-106(B) as a guide to determine the re asonable ness 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 rec ord” per

tained to the time, l abor, and skill req uired to perfor m the legal service and the novelty and difficulty of the issuesinvolved (factor (1)), the fee cus tomarily

charg ed in the l ocality for similar services (factor

(3)), the amount involved and the r esults obta

ined (fa ctor (4) ), the time limitations imposed by the client or the circumstances (factor (5)), a nd the experience, reputation, andability of the lawy

ers (factor (7)). In order to review whether the evidence

prepond erated agains t the trial court’s conclusionthat those factors were supported in the recor d, it is necessary to re

view the evidence on which the trial court relied in reachingits decision. This would, of course, include the evidence presented to the trial court at the hea rings on this issue, as well as objections made at those hearing s, and the

trial cou rt’s ove rall exer cise of it s discre

tion in the matt er. As in dicated above, however, Kilpatrick submitted neither a transcript of the proceedings below nor an approved s tatementof

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 9604 3, at *4 (f

inding th at, in the absence of a transcript or a statement of the evidence, the court must affirm the trial court’s conclusion when alleged error s are not

reflected in

the technical record); Sherrod v. Wix , 849 S.W.2d 780, 7 83 (Tenn. Ct. App. 1992) (stating that, without an appella te record containing the facts, this court must assume that the record, had it been

preserved, would have supported the trial court’s factual finding s). The record

before us indica

tes that tr ial cour t gave due cons ideratio n to the ap plicable disciplinary

rules and related case law in reac hing its conclusion. Thus, without a complete record of the evidence we m

us t assume that the trial court did not abuse its discretion in apply ing the applica ble law to the evidence before it. Our holding pr etermits any other issues r aised in t hi s appeal. The decision

of the tri a l is affirmed. Costs are to be assessed to the appellant, Mary Jane Ki lp at ri ck , a nd he r s ur et y, f or wh ic h e xe cu ti on ma y is su e, if ne ce ss ar y.

___________________________________ HOLL Y M. KIRBY, JUDGE