### IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON NOVE MBER 19, 2002 Session 

### HAL GERBER

v. VIRGINIA STARR SE GAL Direct Appeal from the Chancery Court for Shelby County No. CH-00-0893-2 Floyd Peete , Jr., Chancellor

No. W2001-01709-COA-R3-CV - Filed F ebruary 11, 2003

A LAN E. H IGHERS , J., Dissents

.

DISSENTING OPINION I re sp ec tf ul ly d is se nt fr om th e h ol di ng of th e m aj or it y. The issue in this case seems far more straightforwa rd to this member of the court than it does to the majority. The appe llee is a Memphis lawyer

with more than fifty y

ears of experience

in the practice of law. The appellant employed him to represent her in a divorce. The case was describe d by the special master as “long and ac rimonious.” The appellee kept a meticul ous acco

unt of the time he spent on this case. These records we re submitt

ed to and considered by

the special master in the divorce case and they

have be en made p art of thi s recor d on appe al. The underlying

divorce case was refer

red to a special master by

agreement of the parties. The special mast er he ard proof and concluded, among other things: “The Special Master finds that plaintiff’s fees [appellant herein] are fair and reas onable and are in line with similar services performed

by o th er co mp et en t a tt or ne ys practicing in this area.” The trier of fact is compete

nt to rule on the reasonableness of attorney fees. Wilson Management v. Star Distributors , 745 S.W.2d 870 (Tenn. 1988). In the final decree of

divorce, entered

June 4, 1999, the chancellor held: “The Opinion of the Special Master, JOE M. DUNCAN, ESQ., is in all respects ratified, approved, and confir med and its provisio ns are made binding on the parties.” When the cha ncellor “ratified, approved, and confirmed” the opinion of the special master “in all respects,” he clea rly approve d and adopted the special master’ s finding

that th e a tt or ne y fees at

issue in thi s case “ are fa

ir and re asonable .” This holding w as not app ealed a nd is now f

inal.2 Judicial Estoppel According to the special master’s affidavit, the appellant testified in the underly ing divorce case that “she had $57,647.57 in legal fees and “$7,500.00 in a ccounting fees.” The majority reasons that since she “had” th ese fees outstanding, it does not mean she “owed” them. F or the following reasons, I beg

to differ. First, the majority appar

en tly believ es this case turns on the meaning that the word “had,” had. Second, the word “had” is the word chosen by the special master to describe the testimony of appellant; it is not necess arily the word used by the appe llant. Third, one definition of h ave/had is “to asse

rt, mainta in, or re prese nt as being .” Random H ous e Unabridged Dictionary , 2 nd Edition . There is not one shred of evidence in the rec ord that appellant’s testimony

before the spec ial maste

r sugg este d that she di d not “owe” the amount of attorney fees she had been charge d. Fourth, it mus t be r emembered that appellant’s testimony before the special master was given in connection with the pray er for attor ney fees to b e paid by

husband. The major

ity’ s opinion mu st assume against all reason that she testified as to fee s she did not believe she owed. Fifth, the spec ial maste

r conclu ded from appellant’s testimony , and all the proof, that

her fees “are fair an d reason able

and are in line with similar services performed by ot he r c om pe te nt at to rn eys practicing in this area.” There i s no trans cript of t he testimo ny b efore t

he speci al master . It is “conclu sively

presumed” on appeal in this state that in the absence of a transcript or statement of the evidence that findings of f act made by t he trial c ourt a

re supported by the

evidence heard in that court and must be accepted as true by the appellate

court. J. C. Brad ford & Co. v. Martin Construction Co. , 576 S.W.2d 586 (Tenn. 1979). Sixth, the special master found the fees at issue in this case to be “fair and reasona ble” and the chancellor “ratified, confirmed, and a pproved” the finding and made it “binding on the pa rties.” When there has been a concurre nt finding of the master and chancellor, the “court of appealsshall not have the right to disturb such finding.” T.C.A. § 27-1-113. Seventh, the time sheets and statements addressed to the appellant are included in the record before us. On the statement dated January 31, 1997, the hourly rate

of $250.00 clearly a

ppears and credit is given to appell ant for a

pay ment of $3 4,685.74 o n the same statemen t. A rece ipt d ate d January 13, 2000, a

lso appear s in the re cord whi ch further cre dits appellant for pay ments on account. It is apparent that

appella nt made pa

yme nts pursua

nt to the hourly

rate specified o n her sta

tement. Eighth, it appears to this member of the court that there is indeed a judicial e stoppel in

this case. The appella

nt testified before

the spec ial maste

r with referenc e to the amount of her legal fees3

in a proceeding to compel the husba nd to pay some or a ll of such fees. The special master found the fees to be fair and reasonable, and the c hancellor concurred. Further in the absence of

a transc ript, we must conc lusively

presu me th at appellant’s testimony supported the f inding. Therefore, the finding of the special master and the chancel lor is conclusive and binding on the parties. The appellant cannot now take a contrary position. Reasonableness of Fees The majority appare

ntly seek s to m ake new law in this case. I refer to the following statemen ts in the majo

rity opinion: “ It is o

bvious t hat t he finding of the special master in the underlying

case, as to t

he re asonableness of the Appellee’s fees, wa s based on the belief that the parties had reached an agr eement as to the fees to be charg ed. Appellant now avers that there was no such agreement. According ly, the controlling

issue in the

present case is w hat, if any, ag reement the parties had reached concer ning the fees to be cha

rged. Only

after a determin ation of th

is question can the reasonableness of the fee s properly be a ddressed.” The ma jo ri ty o pinion fur

th er stated: “As noted, the court found the fees which A ppellant charged to be reasonable in light of the fact that they ha

d been deemed so in the underly ing divorce action. As further noted, however, this finding of rea sonableness attached to a sum which, at that ti me , might have appeared to have bee n agreed to by

the parties. That underly ing fee is now, however, in dispute. T

herefo re, a de terminat ion of wha

t, if any, ag reement was reached between the parties must be made prior to addressing the rea sonableness question.” The majority

holds that

the trial court could not add

ress the reasona bleness o f the fe es unless it first found what agreement, if any , the parties had made. In r esponse, I would not

e: Fir st , there is evidenc e in the record of the parties’ ag reement. The fee statement addresse d to appellant specifies the hourly rate

charged, and credits appe llant with payments pursuant to that rate. Second , the majority

cites no a

uthority for the p osition tha

t the tria l court could not consider the reasona bleness of the fees unless it fi rst determ ined the a greem ent by the part ies, if an y. T his member of the court is una

ware of any authority for that p osition. Th

e following, how ever, is instructive: “The amount of compensation which an attorne y is entitled t

o recove r, when n o fee is fixed by the

terms of h

is contra ct with his client, is measured by the reasonable value of the services rendered.” Eakin v. Peeples Hotel Co. , 54 S.W. 87 (Tenn. Ct. App. 1899). “When no fee is fixed by the termsof an att

orney ’s contr

act with h is client, the amount of compensation is measured by the reasonable value of the services re ndered.” Tennessee Jurisprudence, Attorney and Client§ 15. In summary , the test a

pplied to attor ney fee s, either where there is an ag reement, or in the absence of an agreement, is whethe r the fee is fair and reasonable under the circ umstances. That question was addressed in the underly ing proceeding in which the fees in this case arose. The special master found such fees to be fair and reasona ble. The chancellor

concurred. The appellant testified in that proceeding and, in the absence of a transcript or othe r statemen t of the evidence , it is conclusively pre sumed that the evidence supported the decision.4

Fi na ll y, the major

ity o pinion sta tes: “The trial cou rt in the pr

esent ca se faile d to exerc ise its own judgment in determining what represents a r easonable fee based on

these fa ctors, relying

instead up on the finding of reasonableness in the underly ing case, a finding based on the a pparent assumption that the p arties ha d agre ed to that

fee.” With all due

respec t to the majority , I find this statemen t to be er roneous. 1. It is e rroneou s to declar

e that t he trial court failed to exercise its own judgment of reasona bleness. It is th

e same c hancell o r in both cases, i.e., the underly ing divorce case and the complaint for attor ney fees. The chancellor reviewed the opinion of the special master and “ratified, approved and conf irmed” it s provisions and made them “binding upon the parties.” That dec ision was not appea

led and became fin al. I s it the position of the majority that the chance llor could revers e his own final, unappealed decree a nd now declare that the attorney fees in the underly

ing case were not fair and reasonable? 2. The major

ity a sserts tha

t it is “obvious” and “apparent” that the special master’s finding of reasonableness was based on a “belief” that the parties had rea ched an agreement. This may be obvious to th e m aj or it y, but the record nowhere so states. The majority ’s unique position is that the trial court could not even consider the issue of reasonable ness until it determined what was the pa rt ie s’ ag re em en t, if

an y. 3. The majority dec lares that the trial court “should have undertaken a n independent assessment

of what represents a reasonable f ee.” It is not

clear to this membe

r of the c ourt wha

t is meant by an “indepe ndent” a ssessmen

t. Does thi s mean he

could not make a co ncurre nt finding with the special master? Does it mean he could not rely on his own final dec ree in the underly

ing case wherein he “ratified, approved, and confi rmed” the finding

of the ma ster? Does it

mean he m

ust now conduct a new hearing on matters he has alread

y he ard and d

ecided a nd that he is at liber ty to revers e his clear, final, and unappealed holding in t he pr ior ca se ? In a

ny o f these e

vents, I am unable to ag re e w it h t he fa r- re ac hi ng pr on ou nc em en ts by t he ma jo ri ty. For all o f the re asons sta

ted here in, I w ould aff

irm the jud

gment of the trial court.

ALAN E. HI

GHERS, JUDGE