# F I L E D
Janu a r y 14, 1999 C e c i l W . C r o w son A p p e l l a t e C o u r t C l e r k I N TH E CO U R T O F AP PEALS O F TENNES S EE, AT N ASHVI LLE

_______________________________________________________ ) S ARA EVE

LYN E VANS ( YOUNG ) , ) D avid s on C ount y C i r cui tC ourt ) N o . 90D

- 936 P l a i n tiff/A p p e lle e , ) ) V S
. ) C
. A
. N o . 01A 01- 9711- C V

- 00638 ) BOBB Y HUG H YO UNG , ) ) D e f enda n t , ) ) D . K. HAI L E Y W R E CKI NG ) COM PANY, I NC. a n d LE V Y ) I NDUS TRI

AL CONTRACT ORS , I NC. , ) ) I n t e r venor s /A ppel l ant s . )

)

______________________________________________________________________________ Fr o m t he C i r cui tC o u rtof D avi dson C o u n t y at N ashvi l l e . H o n ora b l e M u r i e l R o b i n son , Ju d ge

D o n a l d L . S c h o l e s , B R ANS T E T T E R ,KIL GORE , S T RANCH & J E NNINGS , Na s h v i l l e , T e n n e s s e e A t t o r ney f

o r I n t e r venor s /A ppel l ant s . Irw i n V e n i c k , DOBB IN S & VENI

CK,Na s h v i l l e , T e n n e s s e e A tto r n e y fo r P l a i n tiff/A p p e lle e .

O P IN I ON F ILE D : AFF I R M ED A N D REM A N DED
F ARM ER, J . CRAW F ORD, P . J . , W . S . : ( C oncur s ) KOCH, J . : ( C oncur

s )Intervenors D. K. Hailey Wrecki ng C ompany (Hailey Wrecking) and Levy Industrial

Contractors,

Inc. (Levy Industrial) appeal an order of the trial court requiring them to pay the attorney fees of Plaintiff Sara Evelyn Evans incu

rred in a proceeding to enforce a judgment obtained by Ms. Evans against Bobby Hugh Young. For the reasons stated below, we affirm the ruling of the trial court.

Mr. Young is the president of Levy Wrecking C ompany (Levy Wrecking), a demolition contractor. Levy Wrecking entered into a contract with the Metropolitan Development and Housing Agenc

y (MDHA) to provid

e demolition work in

connection with the constructionof the Nashville Arena (Nashville Arena project). Levy Wrecking then subcontracted the e ntire job to Hailey Wrecking, a demolition contractor, and Levy Industrial, an asb estos removal contractor. Levy Industrial is owned and operated by Kellye Bradley, Mr. Young’s daughter. Formerly, Levy Wrecking and Levy Industrial shared office space. Currently, however, Levy Industrial is located in aseparate building owned by Levy Wrecking. Levy Industrial pays rent to Levy Wrecking for its use of this building. Although Levy Wrecking and Levy Industrial do notshare employees , Ms. Bradley has on some occasions signed documents on behalf of

Levy Wrecking at the request of Mr. Young when Mr. Young was not available to sign the documents himself.

On November 17, 1994, the trial court entered an order imposing a $125,895.00 lien in favor of Ms. Evans against the after expen se net proceeds to be received b

y Levy Wrecking i

n connectionwith its participation i n the Nashville Arena project. On March 18, 1996, MDHA tendered to the trial court$37,837.19, the amount that MDHA owed to Levy Wrecking for work performed

on the Nashville Ar

ena project.Ms. Evans filed a motion on March 21, 1996 requesting that these funds be re

leased to her. On April 18, 1996, Hailey Wreckingand Levy Industrial filed
a complaint, seeking to intervene and claiming that they were entitled to a portion of the proceeds depositedwith the court by MDHA. On August 21, 1997, the trial court entered an order dismissing the intervention complaint, directing that the $37,837.19 deposit ed with the court b

y MDHA be paid to Ms. Evans, and granti

ng to Ms. Evans a

judgment against Hailey Wrecking and Levy Industrial in the amount of $6,934.58, the amo unt o f Ms. Evans’ attorney fees. Hailey Wrecking and Levy Industrial then filed a motion requesting that the trial court amend the portion of its ruling regarding attorney fees. The trial court denied the motion to amend, findingthat Hailey Wrecking and Levy1 T he record i s si l ent r egardi n g w hy the t r i a l cou rtdi d n o t al so order M r . Y o u n g , as a coc o n s p i rat o r ,

t o p a y t h e atto rney fees o f M s . E v a n s . Industrial had conspired with Mr. Young in his efforts to avoid payment of his obligations to

Ms. Evans. 1 This appeal followed.

The sole issue on appeal is whether, under the law of Tennessee, the trial court had authority to order Hailey Wrecking and Levy Industrial to pay Ms. Evans’ attorney fees. B ecause this is a question of law, our review of th e trial court’s r

uling is de novo with no pres umption o f correctness. T.R.A.P. 13(d).

The Tennessee Supreme Court has recently reaf firmed this state’ s adherence to the Americanrule whichstates that, absent the existence of a statute or an agreement between the parties providing otherwise, eac

h party must bear h

is or her own litiga

ti o n expenses, inclu

ding attorney fee

s. See J ohn Koel & Co. P.C. v. Dea rborn & Ewing , 977 S.W.2d 528, 534 (Tenn. 1998). The Tennesseecourts have traditionally recognized an exception to this rule, however, when there are recognized

gr ounds of e quity authorizing a court to require a party to pay an opposing party’s attorney fees. Kimbrough v. Uni on Planters Nat’l Bank , 764 S.W.2d 203, 205 (Tenn. 1989); Pullman Standard, Inc. v. Abex Corp. , 693 S.W.2d 336, 338 (Tenn. 1985); State v. Thomas , 585 S.W.2d606, 607 (Tenn. 197 9); Ezell v. Graves , 807 S.W.2d 700, 703 ( Tenn. App. 1990); Owen v. Stanley , 739 S.W.2d 782, 788 (Tenn. App. 1987), overruled in part on other grounds by Matlock
v. Simpson , 902 S.W.2d 384, 386 (Tenn. 1995); State v . Shelby County Bd. of Co mm’rs , 656 S.W.2d9, 9 (Tenn. App. 19 83); Hannewald v. Fairfield Communities, Inc. , 651 S.W.2d222, 231 (Tenn. App. 1983)(Franks, J., concurring). In the present case, Hailey Wrecking and Levy Industrial argue that the trial court was not authorized by contract, statute, or recognized g round of equity to order themto pay Ms. Evans’ attorney fees. Ms. Evans concedes that Hailey Wrecking and Levy Industrial are not

contractually

obligated to pay her attorney fees. She contends, however, that the ruling of the trial

court is supported

by both statutory an

d equitable groun

ds.

We first examine whether the trial court had statutory authority for ordering Hailey Wrecking and Levy Industrial to pay Ms. Evan s ’ attorney fees. Hailey Wrecking and Levy Industrial attempt to classify Ms. E vans’ action as one to recover alimony owed to her by Mr.Young. The Tennessee statute regarding enforcement of alimony awards provides in pertinent part as follows:

The plaintiff spouse may recover from the defendant spouse, andthe spouse or othe

r person to

whom the custody of

the child, or children, is awarded may recover from t he other spouse r easonable attorney fees incurred in e nforcing any decree for alimony and/or child support, or in regard to any suit or action concern ing th e adjudication of the custody or the change of custody of any child, or children, of the parties,

both upon the original divorce hearing and at any subsequent hearing, which fees may be fixed and allowed by the court , before whom such action or proceeding is pending, in the discretion of suc

h court.

Tenn. Code Ann. § 36-5-103(c) (Supp. 1998). Hailey Wrecking and Levy Industrial note that this provisio n allow s the court to award attorney fees against a defendant spouse. Accordingly, they arguethat the statute does not authorize the court to award attorney fees against an intervening part

y that is not a defendant spouse. We agree. We find, however, that Ms. Evans’ action was not one to
recover alimony but instead was anaction to enforce her marital property award. The trial court’s order imposing a lien on the pro ceeds from the Nashville Arena project specifically provides that Mr. Young owed to Ms. Ev ans an amount rep

resenting “an eq

uitable divisi

onof the [parties’] marital estate.” Thus, because

Ms. Evans has not attempted to enforce any alimony obligation owed to her by Mr. Young, we find that section 36-5-103 is inapplicable to the case at bar.

The rule with respec

t to costs of

divorce actions provides that “[t]he court may decree costs agai nst either party, and may award ex

ecution for the sa

me, or, in case an

y esta te i s sequestered, or in the power of the court,or in the hands of a receiver, it may order the costs to be paid out of such property.” Tenn. Code Ann. § 36-4-122 (1996). For purposes of this provision, the term“costs” also includes attorney fees. See, e.g., Fox v. Fox , 657 S.W.2d 747, 749 (Tenn. 1983). Section 36-4-122 allows the trial court to award costs of a divorce action against either party. Ms. Evans co nt ends that, becau se Hailey Wrec

king and Levy Indu

strial are parti

es to her action to enforceher marital prope

rty award, the trial

court had author

ity under this

provision to requir

e these parties to pay her attorney fees. We disagree. Section 36-4-122 u s es the phrase “either party,” suggesting that costs may be assessed against either the husband or the wife. Given this language, it is doubtful thatthe drafters of sec tion 36-4-122 inten

ded for this provis

ion to apply to third p

artyintervenors such as Hailey Wrec

king and Levy Indu

strial.

We thus find that the trial court did not have statutory authority to assess attorney fees against Hailey Wrecking and Levy Industrial under either section 36-4-122 or section 36-5-103 of the Tennessee Code Annotated.

We next consider whether the trial court’s ruling may be justified under recognized grounds of equity. In its order denying the motionto amend, the trial court specifically found that Hailey Wrecking and Levy Industrial conspired with Mr. Young to frustrate Ms. Evans’ effor

ts to collect her judgment against Mr. Young. Hailey Wrecking and Levy Industrial do not challenge th is finding on appeal. Rather , they contend tha

t the exi stence of a conspiracy does not create legal grounds for awarding at

torney fees aga

inst a third party

intervenor. In support of this position, Hailey Wrecking and Levy Industrial cite the unreported case of Kiihnl v. Kiihnl, No. 02A01-9111- CV-00286, 1992 WL357188 (Tenn. App. Dec. 4, 1992). Kiihnl involved a child custody dispute in connection with a divorce. See id. at *1. The paternal grandparents of the children filed a third party intervention comp

laint seeking cour

t ordered visi

tation
. See id. The trial court denied visitation and ordered

the grandparen

ts to pay the attorn

ey fees incurre

d by the mother in

defending against their intervention complaint. See id. at *3. We reversed the award of attorney fees, noting that the grandparent

visitation statute did not authorize such an award and implicitly finding that the award was not supported by recognized grounds of equity. See id. at *6. T he sole similarity between Kiihnl and the instant case is that they both involve an award of attorney fees rendered against a third party intervenor. Unlike the grandparents in Kiihnl , the right of Hailey Wrecking and Levy Industrial to rec

over under th

eir int ervention complaint is not governed by statute. Additionally, the mother i n Kiihnl contended that she was entitled to attorney fees as a matter of equity because she defended the complaint on behalf of the children. See id. at *5. In the present case, however, the ass

erted equitable

groundinvolves the existe nce of a conspir

acy to prevent Ms. Evans from collecting payments owed to her by Mr. Young.

A number of jurisdictions, including Tennessee, have recognized the “tort of another doctrine” which allows a party to recover attorney fees when he or she has been forced into litigation witha thirdparty as the result of the defendant’s wrongful or tortious conduct. See McCracken v.U.S. Fire Ins. Co. , 802 F.Supp. 30, 38 (W .D. Tex. 1992); Matter of Milwaukee Cheese Co. , 128 B.R. 538, 543 (Bankr. E.D. Wis. 1991); In re R ussell v. Burnham, Klinef elter, Halsey, Jone

s & Cater, P.C. , 674 So. 2d 1287, 1290 (Ala. 1995); Collins v. First Fin. Servs., Inc. , 815 P.2d 411, 413 (Ariz. Ct. App. 1991); Golden W. Baseball Co. v. Talley , 284 Cal. Rptr. 53, 58 (Cal. Ct. App. 1991); Stevens v. Moore and Co. Realtor , 874 P.2d 495, 496 (Co lo. Ct. App. 1994); Matter of Estate of Dyniewicz , 648 N.E.2d1076, 1085 (Ill. Ap p. Ct. 1995); Hess Constr. Co. v. Board of Educ. , 669 A.2d1352, 1354 (Md. 1996 ); In re Thomas Estate v. Manufacturers Nat’l Bank , 536 N.W.2d579, 583 (Mich. Ct. App. 1995 ); Jugan v. Friedman , 646 A.2d 1112, 1120 (N.J. Super. Ct. A pp. Div. 1994); S & D Mechanical Contracto rs, Inc. v. Enting

Water Conditioning Sys., Inc. , 593 N.E.2d 354, 363 (Ohio Ct. App. 19 91); Pullman Standard, Inc. v. Abex Corp. , 693 S.W.2d 336, 340 (Tenn. 1985); Winkelman v. Beloit Memorial Ho sp. , 483 N.W.2d 211, 217 (Wis. 1992). In Jugan v. Friedman , 646 A.2d 1112 (N.J. Super. Ct. App. Div. 1994), a New Jersey court applied the “tort of another doctrine

” to facts similar t

o those of the case at

bar. Jugan obtained a monetary judgment against Friedman in a medical malpractice action. Id . at 1113. In an effort to prevent Jugan from collecting his judgment, Friedman conveyed all of his assets to his wife and adult sons. Id . at 1114. The court found that Friedman’s fraudulent conduct constituted anindependent tort entitling Jugan to recover litigation expenses, including attorney fees, incurred i n a lawsuit brought against Friedman’ s wife and c hildren. Id . at 1120. The court made no finding regarding whether Jugan could also recover tort damages aga in st Friedman’s wife and children as co-conspirators. Id . at 1121.

We recognize that, in the instant case, the tortious conduct of Hailey Wrecking and Levy Industrial did not c

ause Ms. Evans to e

ngage in litigation w

ith a third party. T

hus, the “tort of another doctrine” is not directly applicable. We find, however, that the equi table princi ples underlying this doctrine are nevertheless

relevant conside

rations in the cas

e at bar. Hailey Wrecking
a nd L evy Industrial co

nspired with Mr. Yo

ung to hinder or pr

event the collec

tion of Ms. Evans’ judgment. As a direct resul t of this conspiracy, Ms. Evans incurred almost seven thousand dollars in costs and attorney fees. We find that, under such circumstances, it is appropriate to require Hailey Wrecking and Levy Industrial to pay these expenses.

Basedon the foregoing, we conclude that the entering into a conspiracy constituteda

recognized

ground of equity for

requiring Hailey Wrecking and Levy Industrial to pay the attorney fees incurred by Ms. Evans in enforcing her judgment against Mr. Young. The ruling of the trial court is thus affirmed. Costs on appeal are charged to Hailey Wrecking and Levy Industrial, for which execution may issue if necessary.

____________________________________ FARMER, J.

______________________________ CRAWFORD, P.J., W.S. ( Concurs)

______________________________ KOCH, J. (Concurs)