IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

November 4, 2009 Session

JOSEPH M. HASKINS, INDIVIDUALLY AND AS THE EXECUTOR OF

THE ESTATE OF DREW E. HASKINS, JR., DECEASED v. DREW E.

HASKINS, III

Appeal from the Chancery Court for Hamilton County

No. 00-0292 Howell N. Peoples, Chancellor

No. E2009-00403-COA-R3-CV - FILED MAY 13, 2010

This case in on appeal for the second time after remand for determination of the defendant’s

request for attorney’s fees, costs, and expenses. The defendant challenges the sufficiency of

the trial court’s award. After reviewing the record, we reverse in part and affirm in part the

trial court’s judgment.

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

Reversed in Part and Affirmed in Part; Case Remanded

JOHN W. MCCLARTY, J., delivered the opinion of the court, in which HERSCHEL P. FRANKS,

P.J., and CHARLES D. SUSANO, JR., J., joined.

John P. Konvalinka, Chattanooga, Tennessee, for the Appellant, Drew. E. Haskins, III.

R. Wayne Peters and Robin L. Miller, Chattanooga, Tennessee, for the Appellee, Joseph M.

Haskins, Individually and as Executor of the Estate of Drew E. Haskins, Jr.

OPINION

I. BACKGROUND

This matter returns to this court following a remand to the trial court. While the

present appeal relates only to attorney’s fees, costs, and expenses (“fees”), the following

summary from our initial opinion provides background regarding the underlying litigation:
In 1983, Drew E. Haskins, Jr., and his two sons, the appellant, Drew E.

Haskins, III [(“D.E.H.”)], and the appellee, Joseph M. Haskins [(“J.M.H.”)],

formed a partnership designated Dayton Pike Plaza Associates (“the Plaza

partnership”) to lease property in Tennessee. Later, in 1986, the three formed

a second partnership designated the Capital Developers Partnership (“Capital

Developers”) for the purpose of leasing a building in Catoosa County, Georgia,

to Capital Bank. Each of the partners held an equal one-third interest in both

partnerships. [D.E.H.] was elected and designated managing partner of Capital

Developers.

In April of 1996, Drew E. Haskins, Jr., died, and on April 18, 1996, [J.M.H.]

was appointed executor of the Estate of Drew E. Haskins, Jr. (“the Estate”).

The Capital Developers’ partnership agreement provided as follows in the

event of a partner’s death:

The Partnership shall not be dissolved by the death of a

[P]artner. The remaining Partners shall have the right to

continue the Partnership business under its present name

following the death of a Partner, provided they elect to purchase

the interest of the deceased Partner and make payments

specified in Paragraphs 20 and 21. The election to purchase the

interest of a deceased Partner shall be exercised by written

notice delivered within three (3) months after the effective date

of the appointment of a personal representative on behalf of a

deceased Partner. The notice may be delivered in person or may

be mailed by registered or certified mail to the personal

representative of the deceased Partner. . . .

It is undisputed that, although the surviving partners did not elect to purchase

the interest of Drew E. Haskins, Jr. after his death, they treated both

partnerships as ongoing after that time.

In March of 2000, [J.M.H.], individually and as executor of the Estate, filed

a complaint in the Hamilton County Chancery Court against his brother

[D.E.H.], alleging that the latter had breached his fiduciary duties by paying

himself unreasonable management fees from Capital Developers and from the

Plaza partnership. The complaint sought an accounting with regard to both

partnerships, requested that [D.E.H.] be required to account for management

fees, demanded the expulsion of [D.E.H.] from Capital Developers, and

requested that the Court dissolve the Plaza partnership.

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In his answer and counterclaim to the complaint, [D.E.H.] denied that any of

the management fees he received were unreasonable or improper, denied all

allegations of wrongful conduct, and denied the necessity of a judicial

dissolution. The counterclaim contained three counts. Count one noted that

because no partner elected to purchase the shares of Drew E. Haskins, Jr., as

required under the Capital Developers’ partnership agreement, that partnership

should have ended three months after [J.M.H.’s] appointment as personal

representative of the Estate. Count one further asserted that because [J.M.H.]

failed to elect to purchase the shares of his father, that [J.M.H.,] as holder of

one-third of the interest in Capital Developers Partnership, did not maintain the

necessary two-thirds interest to expel [D.E.H.]; and that [J.M.H.] breached his

fiduciary duty by attempting to expel [D.E.H.] from Capital Developers.

Finally, count one requested the court to dissolve Capital Developers and to

determine the rights and interests of the parties in the assets of that entity.

Count two of the counterclaim asserted that the payment of management fees

for Capital Developers and the Plaza partnership was expressly recognized by

the partners, that such fees were at or below fair market value for such

services, and that [J.M.H.] should not be allowed to unjustly benefit by

avoiding the payment of reasonable management fees. Count three of the

counterclaim asserted that, pursuant to the partnership agreements, [D.E.H.]

was entitled to indemnification and reimbursement for all costs, expenses, and

fees, including attorney’s fees, related to the litigation.

In August of 2000, [J.M.H.] elected himself manager of Capital Developers,

believing that he carried a two-thirds vote based upon his own one-third share,

plus a one-third share he claimed as executor of his father’s estate. Contrary

to the partnership agreement, there was no notification of a meeting of partners

as to this action of [J.M.H.], and no such meeting was held.

The case was tried without a jury in November of 2002. Upon finding that the

surviving partners did not elect to purchase the interest of the Estate, the trial

court ruled: 1) Capital Developers was dissolved as a matter of law as of July

18, 1996, three months after the date [J.M.H.] was appointed personal

representative of the Estate [due to the fact that no election was made by the

remaining partners to purchase the interest of the Estate in the partnership,

pursuant to the partnership agreement]; 2) there was to be an accounting and

payout of appropriate partnership properties in proportions allowed under the

partnership agreement as of July 18, 1996; 3) the management fees received

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by [D.E.H.] were reasonable and equitable; 4) that the Plaza partnership be

1

dissolved effective November 6, 2002; 5) that the parties prepare and exchange

accountings for the partnerships on or before January 6, 2003; 6) and the

request of [D.E.H.] for attorney’s fees be denied. After entry of this order, the

trial court entered an additional order referring the case to the clerk and master

for a determination as to the manner in which the two partnerships should be

sold and as to the appropriate distribution of the net proceeds from the sale of

Capital Developers. The trial court further directed that [D.E.H.], [J.M.H.], and

the Estate should each receive one-third of the net sale proceeds of the Plaza

partnership.

Pursuant to a ruling of the clerk and master, the partnership properties were

sold at private auction on July 8, 2003, and [D.E.H.] was the successful bidder

as to both partnerships. Although closing was scheduled for September 24,

2003, prior to that date, [J.M.H.] filed a motion to set aside the sale based in

part upon allegations that [D.E.H.] had failed to close the sale within a

reasonable period of time. This motion was granted by order of the clerk and

master; however, the clerk and master’s order was reversed by order of the trial

court which decreed that closing take place within thirty days of the date the

latter order became final. [D.E.H.]’s request for attorney’s fees incurred

opposing the motion to void the sale was denied.

Haskins v. Haskins, No. E2005-02868-COA-R3-CV, 2006 WL 3017896, at *1-3 (Tenn. Ct.

App. E.S., Oct. 24, 2006).

In our prior opinion, we reversed the trial court’s ruling denying D.E.H.

reimbursement of fees. Id., 2006 WL 3017896, at *13-15. This court reasoned:

While we do not agree that the trial court erred in denying [D.E.H.] attorney’s

fees, expenses, and costs requested in connection with his purchase of the

partnership and successful opposition to the attempt to void the sale, we do

believe he was entitled to such fees, expenses, and costs incurred with respect

to the other matters listed because they were incurred in connection with

partnership business while he was acting as managing partner.

* * *

D.E.H. had the partnerships pay management fees to his company, Battleview Management.

1

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The indemnification clause of the Capital Developers’ partnership agreement

relied upon by [D.E.H.] in support of his request for attorney’s fees states in

pertinent part as follows:

The partnership shall indemnify and hold the Managing Partner

harmless from and against any claim, demand or liability

incurred by him in connection with the business of the

Partnership, provided that the acts or omissions from which the

claim, demand, or liability arose were performed or committed

in the good faith belief that the Managing Partner was acting

within the scope of his authority and in the best interest of the

Partnership and that he was not grossly negligent or guilty of

intentional misconduct.

Id. at *14. We noted further that the Plaza partnership agreement providesthat “[t]he Partners

shall be reimbursed by the Partnership for all reasonable out-of-pocket expenses incurred by

the Partners in connection with the conduct of the affairs of the Partnership.” Id. Therefore,

this court found and held as follows:

[T]he expenses and fees incurred by [D.E.H.] in defense of his payment of

management fees to himself, against the attempt to expel him and in his efforts

to recover on behalf of the partnership management fees that [J.M.H.]

wrongfully received did constitute liabilities incurred by [D.E.H.] in

connection with the business of the partnership while acting within the scope

of his authority as managing partner. Therefore, we agree that the partnership

agreement requires that [D.E.H.] be awarded attorney’s fees, costs, and

expenses incurred by him in regard to these latter matters, and it is our

determination that the trial court’s denial of such was error.

Id. at *15.

After this court handed down its decision in the first appeal, D.E.H. filed a motion for

fees with the trial court. The total amount of fees and interest sought through April 30, 2007,

was $123,100.58, with interest accruing at $27.48 per day thereafter. D.E.H. summarized

his request as follows:

1. $100,333.86 consisting of charges for services and expenses as allowed by

the Court of Appeals.

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2. $46,080.16 for the fees and charges through December 30, 2002, the date

of the trial court’s original judgment order. Interest at ten percent on those

charges from December 30, 2002, through April 30, 2007, is $19,972.28 and

$12.62 per day thereafter.

3. $54,253.70 in fees and charges incurred from December 31, 2002, through

October 24, 2006, when the Court of Appeals rendered its decision. Interest

at ten percent from October 24, 2006, through April 30, 2007, is $2,794.44 and

$14.86 per day thereafter.

Subsequently, D.E.H. moved to supplement his motion for fees, requesting an additional

amount of $13,621.35 from September 19, 2006, through February 29, 2008. At an April 1,

2008 hearing, D.E.H.’s attorney Mathew D. Brownfield testified regarding the claimed fees.

In an order dated July 2, 2008, the trial court refused to grant an award of fees in the

amount requested. The court noted as follows:

For the most part, the entries provide only general descriptions of the services

performed. Mr. Brownfield testified that the billings totaled approximately

$148,000 for all matters, and that $100,333.86 was the amount he had

determined that was billed for the services relating to the three issues allowed

by the Court of Appeals. Mr. Brownfield was cross-examined concerning the

absence of detail in the breakdown of the time statements[.] On cross

examination, it appeared that the $100,333.86 includes services relative to the

sale of assets by the Clerk & Master, the accountings by the parties, the

appraisal of property, a counter-claim for dissolution of the Capital Developers

partnership, tax issues for defendant, issues relating to leases and the

negotiation of leases, and generally relating to all issues in the appeal of the

case. . . .

* * *

. . . The Court understands that when the services were being rendered,

counsel did not specifically break down the periodic billings by specific issue

of the case. The Court of Appeals has determined, however, that defendant

may be reimbursed only for fees and expenses relating to the three issues. The

Court has considered denying the motion for fees for lack of proof. That

would be unduly harsh because it is apparent that counsel for defendant has

made some effort to comply with the remand by the Court of Appeals. It is

also apparent that counsel have given their client the benefit of the doubt in

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preparing the time summary for the fees claimed. The Court finds that counsel

for defendant should be allowed to file a Second Motion for Fees and

Expenses and make a second attempt to prove the fees and expenses related

solely to the three issues. . . . [D]efendant should claim only those fees that

unquestionably are related to the three issues, not fees that arguably could be

allowed.

* * *

Thereafter, D.E.H. submitted a second motion for fees and requested $39,589.16 in fees

through November 24, 2008, with interest through that date of $18,980.95, for a total of

$58,570.11, with interest accruing at $10.84 per day thereafter. D.E.H. summarized the fees

as follows:

a. $28,812.67 in attorney’s fees that were incurred through December 30,

2002, when the trial court ruled that no fees would be awarded, with interest

at ten percent from December 30, 2002 through November 24, 2008, equaling

$16,766.61 with $7.89 per day thereafter.

b. It was determined that the fees and charges incurred from December 31,

2002, through October 24, 2006, when this Court rendered its decision, were

$10,776.49. Interest at ten percent through the date of filing, November 24,

2008, was $2,214.35, and $2.95 per day thereafter.

c. The total amount claimed was $39,589.16 for fees and $18,980.95 for

interest though November 24, 2008, with interest at $10.84 per day thereafter.

D.E.H. specifically noted that “[t]he difference of $106,372.92 has been omitted from the

Revised Affidavit A, as not within the scope of the award of the Court of Appeals per this

Court’s Memorandum and Order of July 2, 2008. Further, unlike the prior request, no fees

are requested for preparation of either application for fees.”

On January 29, 2009, the trial court ruled that $39,589.16 in fees would be awarded

to D.E.H. The court provided as follows:

Counsel for [J.M.H.] correctly points out that the partnership agreements

provided that reimbursement is due from the partnerships. Since the legal

issues were essentially the same for the two partnerships, the court finds that

each of the two partnerships should bear one-half of the burden of

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reimbursement. Thus, each partnership would be liable for $19,794.58.

Capital Developers partnership was wound up with each partner receiving onehalf of the assets; therefore, [J.M.H.] is liable to [D.E.H.] in the amount of

[$]9,897.29 for the obligation of Capital Developers. Plaza Developers

partnership was owned two-thirds by [J.M.H.]; therefore, [J.M.H.] is liable to

[D.E.H.] in the amount of $13,196.39 for the obligation of Plaza Developers.

The trial court further ruled that no interest would be awarded “because the amount has been

at issue and contested until the entry of this Order, the counter-[claim] did not request prejudgment interest, and the proof with regard to the relationship between the amount requested

and the three issues is not certain.” Accordingly, the court awarded D.E.H. a judgment

against J.M.H. in the amount of $23,093.68 in reimbursement of fees. Thereafter, D.E.H.

timely filed a notice of appeal.

II. ISSUES

D.E.H. raises the following issues on appeal:

A. Whether the trial court applied the wrong standard when it failed to award

the amount of attorney’s fees, costs, and expenses requested by D.E.H.

B. Whether the trial court erred in allocating the payment of attorney’s fees,

costs, and expenses awarded.

C. Whether the trial court erred in not awarding interest on the awarded

attorney’s fees, costs, and expenses.

J.M.H. raises the following related issue:

D. Whether the trial court erred in awarding attorney’s fees, costs, and

expenses that were not related to the three issues identified by this court’s

previous opinion.

III. STANDARD OF REVIEW

In a non-jury case such as this one, we review the record de novo with a presumption

of correctness as to the trial court’s determination of facts, and we must honor those findings

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unless there is evidence which preponderates to the contrary. Tenn. R. App. P. 13(d); Union

Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993). The trial court’s conclusions

of law are accorded no presumption of correctness.

Determining the amount of the attorney’s fee that is reasonable is within the trial

court’s discretion. Albright v. Mercer, 945 S.W.2d 749, 751 (Tenn. Ct. App. 1996).

Accordingly, the appellate court reviews a trial court’s determination of the reasonable

amount of fees to which a party is contractually entitled using the “abuse of discretion”

standard. J & B Invs., LLC v. Surti, 258 S.W.3d 127, 138 n. 10 (Tenn. Ct. App. 2007).

The “abuse of discretion” standard is a review-constraining standard of review that

calls for less intense appellate review and, therefore, less likelihood that the trial court’s

decision will be reversed. White v. Vanderbilt Univ., 21 S.W.3d 215, 223 (Tenn. Ct. App.

1999). A trial court’s discretionary decision will be upheld as long as reasonable minds can

disagree about the correctness of the decision. State v. Gilliland, 22 S.W.3d 266, 273 (Tenn.

2000). A trial court will be found to have “abused its discretion” only when it applies an

incorrect legal standard, reaches a decision that is illogical, bases its decision on a clearly

erroneous assessment of the evidence, or employs reasoning that causes an injustice on the

complaining party. Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001).

IV. DISCUSSION

A.

D.E.H. arguesthat the trial court used an improperstandard in denying hisfirst motion

for fees. He contends that it was error for the trial court to direct him to claim only fees that

“unquestionably are related to the three issues” identified by the Court of Appeals. D.E.H.

asserts that the trial court should have awarded the amount of fees requested in the first

motion, and that the existing award is inadequate in light of this court’s previous opinion.

In response, J.M.H. contends that D.E.H. bore the burden of proving the

reasonableness of the fees requested. Wilson Mgmt. Co. v. Star Distribs., Co., 745 S.W.2d

870, 873 (Tenn. 1988). J.M.H. asserts that D.E.H. failed to sustain his burden of proof

because the descriptions and testimony regarding the fees showed no breakdown of how

much time was spent on each particular issue. He claims that D.E.H. arbitrarily reduced the

fees claimed on many entries. He contends that there was no way for the trial court to

discern the time spent on the covered issues versus the time spent on the non-covered issues.

J.M.H. further argues that D.E.H.’s request for fees was replete with claims in areas for

which this court did not allow reimbursement.

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Tennessee law requires that attorney’s fees be a question of reasonableness. D.E.H.

notes that the burden of proof to make out a claim for fees is ordinarily met by an affidavit

from the attorney performing the work. Chaffin v. Ellis, 211 S.W.3d 264, 291 (Tenn. Ct.

App. 2006); Hosier v. Crye-Leike Commercial, Inc., No. M2000-01182-COA-R3-CV, 2001

WL 799740, at *6 (Tenn. Ct. App. M.S., July 17, 2001). The amount of the award is to be

determined upon all the facts and circumstances presented by the record, “primarily the

amount involved and available, the nature of the responsibility assumed by the attorneys, and

the character and extend of the services which they have performed, not only in the technical

litigation itself, but also in matters arising out of and incidental to such litigation. United

Med. Corp. of Tennessee, Inc. v. Hohenwald Bank & Trust, 703 S.W.2d 133, 136 (Tenn.

1986).

Reasonableness determinations also should be guided by the factors in the Rules of

Professional Conduct 1.5(a):

(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 legal services;

(8) Whether the fee is fixed or contingent;

(9) Prior advertisements or statements by the lawyer with respect to the fees

the lawyer charges; and

(10) Whether the fee agreement is in writing.

Tenn. Sup. Ct. R. 8, RPC 1.5.

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At the start of the hearing on fees, counsel for D.E.H. inquired as to whether the trial

court desired testimony in light of the fact that an affidavit had been filed. The trial court

replied that

[t]he response to the motion for fees states that there are numerous issues

concerning claimed fees that were not awarded by the ruling of the Court of

Appeals. Sets out certain areas that apparently claimed that the plaintiff here

claims were not included in the award by the Court of Appeals.

The Court of Appeals, as I understand the opinion, said that [D.E.H.] is

entitled to be reimbursed by the partnership for expenses and fees that were

paid for specifically the defense of his – of the payment of management fees

to [D.E.H.] for the defense of the attempt to expel him that was prosecuted by

[J.M.H.] and for the efforts to recover for the benefit of the partnership the

management fees that were wrongfully received by [J.M.H.].

In reviewing the time statement, it is not clear that the fees that are listed are

for these specific three areas. They merely set out things such as reviewing

message Dr. Haskins. What does that tell the Court about whether it was

related to one of these three areas? So I think we need more than the affidavit.

Mr. Brownfield then testified that approximately $148,000 was billed from April 2000

to September 2006. He stated that the amount of fees “sought in connection with the same

period of time with regard to the allocation done by the Court of Appeals” was $100,333.86.

He indicated that he “went through the billing statements . . . [and] pulled out the time

entries that were covered by the Court of Appeals opinion[.]”

On cross-examination, Mr. Brownfield testified that the time entries were kept on a

daily basis. He stated that edits were made on prebills to correct any errors before the bill

was sent to the client. Further, he noted that the time descriptions were consistently entered

accurately.

After a thorough review of the record, we conclude that the trial court construed our

prior opinion too narrowly. There were only two areas for which fees were not awarded:

regarding D.E.H.’s purchase of the partnerships, and his successful opposition to J.M.H.’s

attempt to void that sale. In our view, D.E.H., in his original fee request, properly requested

recovery of fees in areas allowed by this court in our previous opinion. In applying the

factors enumerated in Rule 1.5 of the Rules of Professional Conduct, it is apparent that the

time, labor, difficulty of the issues, and results obtained all weigh in favor of the

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reasonableness of the fees claimed in the first motion.

In our review, we determined thatJ.M.H.’s challengesto the specific time entries were

appropriately rebutted. Accordingly, for the reasons noted above,J.M.H.’sissue that the trial

court erred in awarding fees outside the three areas identified in our prior opinion likewise

lacks merit.

B.

D.E.H. also challenges the trial court’s apportionment of the fees between J.M.H. and

D.E.H. He contends that this court did not hold that D.E.H. should receive a pro-rated

portion of fees, but that he was to recover the fees incurred “in defense of his payment of

management fees to himself, against the attempt to expel him, and in his efforts to recover

on behalf of the partnership the management fees that [J.M.H.] wrongfully received.”

Haskins, 2006 WL 3017896, at *13-15. D.E.H. contends that the trial court’s reduction of

the entire amount of fees was erroneous. In response, J.M.H. argues that the trial court was

bound by the partnership agreement when apportioning the fees. He contends that

reimbursement of fees was correctly paid in accordance with the ownership interests that

D.E.H. had in the now-dissolved Capital Developers and Plaza partnership.

We note that neither of the partnerships at issue were made parties to this litigation.

Our prior opinion held that “Drew E. Haskins III be awarded attorney’s fees, costs, and

expenses incurred by him.” We did not order apportionment of the awarded fees pursuant

to the percentage of ownership interest in the two partnerships. Accordingly, we reverse the

trial court’s holding on this issue.

C.

D.E.H. contends that he is entitled to post-judgment interest from December 30, 2002,

which is the date of the entry of the order that found Capital Developers dissolved as of July

18, 1996, and Plaza partnership dissolved as of November 6, 2002. He argues that an

appellate court decision that modifies or reverses a trial court’s judgment is given retroactive

effect to the date of the original judgment. See Varnadoe v. McGhee, 149 S.W.3d 644, 649

(Tenn. Ct. App. 2004); Gotten v. Gotten, 748 S.W.2d 430, 431 (Tenn. Ct. App. 1987).

Because this court later ruled that the trial court should have awarded fees, D.E.H. contends

that the amount of fees through that date should have interest applied to make him whole.

D.E.H. also relies upon Tenn. Code Ann. § 47-14-122, which provides:

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Interest shall be computed on every judgment from the date on which the jury

or the court, sitting without a jury, returns a verdict without regard to a motion

for new trial.

He asserts that the right to post-judgment interest is statutory and thus mandatory. Varnadoe,

149 S.W.3d at 650.

In response, J.M.H. points out that the trial court denied post-judgment interest

because the amount of fees was contested until the entry of the trial court’s order on January

29, 2009. He contends that post-judgment interest does not begin to accrue until “the party

awarded judgment becomes entitled to the money.” Clement v. Clement, No. W2006-00691-

COA-R3-CV, 2007 WL 2318659 (Tenn. Ct. App. W.S., Aug. 15, 2007). In Clement, the

court explained when interest begins to accrue on a judgment:

It is well-settled that the post-judgment interest statute is mandatory, and that

trial courts cannot ignore it. However, “[a] party’s right to postjudgment

interest is based on that party’s entitlement to use the proceeds of the judgment

after the award.”

In the instant case, as noted above, the award to Ms. Clement was not a sumcertain money judgment from which statutory interest would ordinarily accrue,

and Ms. Clement did not have a right to the use of the proceeds representing

her interest in the property until either the trial court determined a proper

method of payment or the property was sold. Accordingly, we find no merit

in this argument. The trial court’s decision on this issue is affirmed.

Clement, at *4 (internal citations omitted). In the instant case,J.M.H. contends that this court

remanded this case to the trial court for the collection of fees, and the amount was not sumcertain until the trial court entered its order on January 29, 2009. J.M.H. paid the judgment

in full on February 2, 2009.

The Gotten court noted as follows:

The appellate court acts only upon the record in the case in the trial court and

when the appellate court enters an order modifying the trial court order it is

doing what should have been done in the first instance. The modification of

the trial court order should be effective as of the date of the trial court order.

Therefore, we hold that a judgment of the appellate court reversing or

modifying the trial court judgment . . . is effective as of the date of the trial

court judgment, unless the appellate court judgment specifies otherwise.

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748 S.W.2d at 432.

In Bunch v. Bunch, No. 03A01-9805-GS-00156, 1999 WL 172674 (Tenn. Ct. App.

E.S., Mar. 24, 1999), this court,speaking through Judge Susano, distinguished casesin which

“the appellate court modified the lower court’s judgment, i.e., changed specific monetary

awards therein.” Id. at *4. In that case, we required the trial court to take further action on

remand – “not merely to enter judgment in accordance with specific modifications by us.”

Id. Because we could not act upon the record and modify the trial court’s judgment, we

stated that “a final determination regarding the division of property occurred only upon

remand of the case and the trial court’s subsequent judgment.” Id. See also Berryhill v.

Rhodes, No. W2001-00748-COA-R3-JV, 2002 WL 927442, at *4 (Tenn. Ct. App. W.S., May

2, 2002).

We believe that the case before us is analogous to the decision in Bunch. This court

remanded this matter in order for the trial court to determine the amount of fees to which

D.E.H. is entitled. We did not know what effect our opinion would have on the pecuniary

amount the trial court would determine upon remand. The trial court had to determine, after

considering additional evidence and argument from the parties, the correct amount of fees.

See Berryhill, 2002 WL 927442, at *4.

Under the facts of this case, a final determination regarding the fees occurred only

after this court’s remand of the case and the trial court’s subsequent judgment. As in Bunch,

this case “presents a different situation from one in which the lower court’s judgment is

modified to reflect the appellate court’s revised specific monetary determination.” 1999 WL

172674, at *4. The date the trial court “returned the verdict” pursuant to Tenn. Code Ann.

§ 47-14-122 was January 29, 2009. Therefore, the trial court did not err in finding that

interest does not accrue from the date of the trial court’s original judgment.

V. CONCLUSION

The judgment of the trial court is reversed in part and affirmed in part. D.E.H. is

awarded the fees of $100,333.86 effective as of January 29, 2009, with post-judgment

interest accruing from and after that date, without apportionment. Costs of the appeal are

assessed to the parties equally.

___________________________________ 

JOHN W. McCLARTY, JUDGE

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