### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE January 30, 2001 S ession KEEHN V. HOSIER v. CRYE-LEIKE COMMERCIAL, INC.

Appeal from the Chancery Court for Sumner County No. 99C-188 Tom E. Gray, Chancellor

No. M2000-01182-COA-R3-CV - Filed July 17, 2001

This appeal involves a

dispute regarding th

e application of a

n attorney’ s fees provision in a property management

agreement. Th

e property owner filed suit a

gainst the prope

rty manager in the Chancery Courtfor Sumner County alleging not on

ly breach o

f contract but al

so fraud, misrepresentation, and breach of fiduciary

duty. Follow

ing a bench tria

l, the trial c ourt awarded the property owner a $1,600 judgment for breach of contra ct and dismissed his remaining claims. Thereafter, the trial court awarded theproperty ow

ner an additional

$15,944 for his

legal fees and $219 in discretionary costs. The property manager has appealed only from the award f or legal fees, asserting that the property owner is not entitle

d to reimbursement for

the legal fee associated with his unsuccessful tort claims. We have determined that the ch allenged lega l services were necessary to counter the property manager’s exculpatory clause defense and tha t the challenged legal fees, under all the circumstances,

are reasonable. Accordingly, we affirm the trial court’s $15,944 award fo

r legal fees.

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

W ILLI AM C. K OCH , J R ., J., delivered the opinion of the court, in which B EN H. C ANTRELL , P.J., M.S., and W ILLI

AM B. C AIN , J., joined.

J. Russell Farrar and M ary Byrd Ferrara, Nashville, Tennessee , for the appellant, Crye-Leike Commercial, Inc. Keith C. Dennen, Nashville, Tennessee, for the appellee, Keehn V. Hosier.
OPINION

Dr. Keehn V. Hosier i

s an OBGYN prac

ticing in Nashville. In January 1998, he purchased
a home in Hendersonville. After several months of commuting, Dr. Hosier decided that it would be
more convenient to live in Nashville. Accordingly, he decided to lease h is home and rent an1 Value First, I nc. was a subsi

diary of Crye-

Leike, the r

eal estate broker t

hat had sold Dr. Hosier his home. Value First later chang ed its name to Crye-Leike C ommerc ial, Inc. We wil l hereafter refer to the company as CryeLeike.

2 Ms. McCormick was not present when Ms. Jordan mo ve d into the hous e and, therefore, did not obtain the security deposit from Ms. Jordan at that ti me. Instead, Ms. McCormick relied on Ms. Jordan’s assur

ances that s

he had mailed a check for the security deposit t o Crye-Leike’s Bre ntwood o ffice. Ms. McCormick “assumed” that the Brentwood office had re ceived the secur

ity deposit

because no one told her otherwise.
-2- apartment nearer to the city. On October 10, 1998, Dr. Hosier and Value First, Inc. 1 entered

into an “Exclusive Management and Leasing Agree ment.” Dr. Hosier decided t o lease the house

for $1,600 per month to cove r bo th his mortgage payment and Cry e-Leike’s ten percent management fee. Shortly after si gning the agreement w ith Crye-L

eike, Dr. Hosier

rented an apar

tment in Nashville with the expectatio

n that his house woul

d be rented within

a few months.

Ja ckie M cCormick was the Crye-Leike employ ee who was responsible for leasing Dr. Hosier’s house. Ms. McCormick advertised the property, and the only person to apply to lease the propertywas Li nda Jordan, an employee of the Gift of Life Ministries. Ms. McCormick and her supervisor

told Dr. Hosier that

they could n

ot recommend lea

sing the house to M

s. Jordan because of her questionable credit history. However, Dr. Hosier told them that he w as willing to take a chanceon Ms. Jordan as long as she had paid the

first month’s rent

and the $1,600 sec

urity deposi

t. Ms. McCormick told Dr. Hosier, “it’s taken care of,” even though she had collected only $400 from Ms. Jordan – the prorated rent for January 1999. 2

Ms. Jordan and her two children moved into the house in late January 1999. She did not submit the February rent

on time, and her check was returned for ins ufficient funds.

When the same th ing occurred in March, Ms. McCormick mailed Ms. Jordan a letter dated March 19,1999 , demanding that she pay the rent or vacate the premises. Ms. McCormick sent Dr. Hosier a copy of this letter along with a note informing him that Ms. Jordan had not paid her security deposit either. After his calls to Crye-Leike’s vice president went unanswered, Dr. Hosier contacted a lawye r who fileda detainer acti

on against Ms. Jorda

n in April 1999. Dr. Hosier obtained a judgment against Ms. Jordan, and she vacated his house on June 11, 1999. Ms. Jordan never paid anything other than the $400 prorated Janu

ary rent.

In July 1999, Dr. Hosier filed su it against Cry

e-Leike all

eging breac

h of the property management

agreement, fraud, negligent misrepresentation, and breach of fiduciary duty. He soug ht $10,000 in damages for breach of contract and $50,000 in actual and $50,000 in punitive damages for his tort claims, as well as attorney’s fees pursuant to the agreement. Crye-Leike denied all of Dr. Hosier’s con tra ct a nd t ort cla ims . Sp eci fic all y, it asserted that he and Ms. Jordan were re

sponsible for any damag

es he had suffer

ed and that Dr. Hosier’s claims wer e barred by

an exculpatory

clause in the agreement

stating that “[a]gent shall not beliable to [o]wner for any error in judgment, nor for any good faith act or omission in the execution of this [a]greement.”-3-

Following a bench trial on Ma rch 1, 2000, the tr

ia l court ruled from the bench that CryeLeike had brea ched the pro pert y mana gement agre ement by fa

iling to collect a

$1,600 security deposit from Ms. Jordan. The trial court also dismissed Dr. Hosier’s tort claims by finding that he
was more than fifty-one percent responsible for permitting Ms. Jordan to rent his house

despite the reservations of Ms. McC orm ick and her s upe rvi sor . Ac cord ingl y, the trial court awarded Dr. Hosier $1,600 in contract damages and his reasonable attorney’ s fees pursuant to the property management agreement. Thereafter, D

r. Hosier’s lawy

er filed an aff

idavit stating that his reasonable attorney’s fees
were $15,944 and that his expenses were $1,710.50. Crye-Leike took exception to this affidavit on the ground th at “the plaintiff’s affidavit claiming attorney fees and e xpenses in the amount of $17,654.50 us [sic] unreasonab le and outra ge ous.” It asse rted that Dr. Hosi

er was not entitle

d to
recover any lega l expenses associa

ted with his u nsuccessful fraud, negligence, and breach of fiduciary relationship claims and that Dr. Hosier’s lawyer’s $180 per hour rate was “a

n extremely high rate for a simple contract

claim.” Crye-Leike also objected to a por tion of the discretionary fees requested by Dr. Hosier on the same basis. On May 23, 20 00, the trial court awarded Dr. Hosier $ 15,944 in attorney’s fees, and on May 26, 2000, the trial court awarded Dr. Hosier $219i n discretionary

costs. Crye-Leike has appealed f rom the portion of the o rder awarding Dr. Hosier $15,944 in attorne

y’s fees.

I.

Tennesseefollows the “American Rule” with regard to a

warding attorn

ey’s fees

. Litigants
are responsible for t

heir own attorney’s fees no matter “however wrong ful may have be

en the suit,
or however groundless the defense.” Corinth Bank & Trust Co. v. Security Nat’l Bank, 148 Tenn. 136, 154, 252 S.W. 1001, 1006 (1923). Thus, the courts will not compel losing parties to pay the prevailing party’s legal expenses unless such fee- shifting is authorized by

statute, contrac

t, or some other recognized equitable ground. State v. Brown & Williamson Tobacco Corp. , 18 S.W.3d 186, 194 (Tenn. 2000); Kultura, Inc. v. Southern Leasing Corp. , 923 S.W.2d 536, 540 (Tenn. 1996); Kimbrough v. Union Planters Nat’l Bank , 764 S.W.2d 203, 205 (Tenn. 1989).

One of the most common exceptions to the American Rule involves contracts contai nin g provisions expressly al

lowing the preva

iling party

to recover its reasonable attorney’s fees incurr ed to enforce the contract. Pullman Standard, Inc. v. Abex Corp. , 693 S.W.2d 336, 338 (Tenn. 1985); Pinney v. Tarpley , 686 S.W.2d 574, 581 (Tenn. Ct. App. 1984). Thus, parties who have prevailed in litigation to e nforce co ntract rights are entitled to recover their reasonable attorney’s fees once they demonstrate that t

he contract upon

which their claim

s are based conta

ins a provision entitling the prevailing p

arty to its at

torney’s f ees.
The p roperty ma

nagement agr

eement in this case

contains a provisi

on for attorney’s fees. Section S provides that “[i]f either [o]wner or [a]gent commences any litigation to enforce the

terms of this [a]uthorization, the prevailing party shall be entitled to receive a re

asonable attorney’s fee and court costs from the other party hereto.” Thus, Dr. Hosier is entitled to his reasonable attorne y’s fees3 This defense was based on a judgment Dr. Hosier had obtained against Ms. Jordan in a separate proceeding.
-4- if he demonstrates that he is the prevailing party in litigation to en force the terms of the contr act. H e is not entitled to re

cover attorney

’s fees incurre

d with regard to

a claim or defen

se that faile

d

. Beaty v. McGraw , 15 S.W.3d 819, 831 (Tenn. Ct. App. 1998). Crye-Leike

asserts that

Dr. Hosier is entitled to recover attorney’s fees for only those services that were directly

related to his successful breach of contract claim. It arg ues that all these services
were rendered prior

to November

9, 1999, and that all of the legal services rendered after November 9, 1999 could only have been d irected to ward Dr. Hosier’s unsuccessful tort claims. Crye-L eike surmises that Dr. Hosier could only have been tilting at tort win dmills after November 9, 1999, because Crye-Leike

had effectively conceded the breach of contract claim in its November 9, 1999
answers to Dr. Hosier’s first set of interro g atories. We have concluded that Crye-Le ike’s capitulation on the breach of contract claim in November 1999 was not as complete as Crye-Leike would now like to ch

aracterize it.

Dr. Hosier was plainly upset by what he per ceived to be Crye-L

eike’s nonchala

nt response to Ms. Jordan’s default. By the time h e filed suit in

July 1999, what would in most circumstances have been a simple suit on the property management ag

reement had mushr

oomed into a suit,

not only seeking $10,000 in damages for breach of contract, but also seeking $100,000 in actual and punitive damages for frau d, m isr epre sen tat ion , an d br each of f idu cia ry du ty. Crye-L eike responded i

n kind. It filed an answer deny

ing liability

to Dr. Hosier unde

r any theor

y and asser

ting eleven def

enses to his claims. Thereafter, the battle moved from the arena of the pleadings to the arena of dis cov ery.
In its August 16, 1999

answer, Cry

e-Leike fla

tly denied th

at it had failed t o collect the required $1,600 security deposit and that it had br eache d the p roper ty mana gemen t agree ment. In addition to various comparative fault defenses, Crye-L eike asserted defenses based on res judicata 3 andfailure to mitigate damages. It also invoked an exculpatory

clause in the prop

erty management agreement

stating that “[a]gent shall not beliable to [o]wner for any error in judgment, nor for any good faith act or omission in the execution of this [a]greement.”

On November 9, 199 9, Cry e-Leike prepared its answers to Dr. Hosier’s first set of interrogatories in which it stated that “[n]o security deposit was received by the defendant.” Taken in the context of the answers to other interrogatories, this statement is far from a concession by CryeLeike that it was liable to

Dr. Hosier for br

each of contra

ct. Some of the other a

nswers demonstra

te the opposite quite cle

arly. Cry e-Leike wa

s sti ll asser ting its exculpatory clause defense to Dr. Hosier’s contra

ct claim and was li

kewise challeng

ing his theory

of damages. Crye-Leike’s

strategy manifested itsel f again onJanuary 10, 2000, when it moved for a partial summary judgment. Referencing the extensive discovery that

had already taken place, CryeLeike asserted that Dr. Hosier

would be unable to prove his fraud, misrepresentation, and breach of fiduciary duty claims. Invoking the exculpatory clause in the property manag ement agreement, CryeLeike also argued that-5- pursuant to th e Exclusive Management an d Leasing Agreement which is the subject of this l

itigatio n, the plaintiff cannot recover for any
error in judgment or good f

aith act or omission in the defendant’s execution of the Agreeme nt, and that, there

fore, the plaintif

f must prove bad faith on the part of the defendant in order t o recover for breach of the Exclusive Management and Leasing Ag reement.
The trial court heard

argument on February 18, 2000, and entered an order denying the motion on March 3, 2000. Crye-Leike

had still not concededthat it was liable to Dr. Hosier for brea ch of the proper

ty management

agreement when the trial commenced on March 1, 2000. At the close of Dr. Hosier’s proof, Crye-Leike again soug ht a directed verdict

based on the agreement’s exculpatory clause. The trial court denied this motion. In closing argument, Crye -Leike’s lawyer ag

ain asserted:

The contract also includes an exculpator y c lause which provides that the agent shall not be liable to the owner for any error in judgment, nor

for any good faith act or omission in the execution of this agreeme

nt.
There has been no proof introduced that Jackie McCormick’s failure to collect a secu

rity deposit was anything other than an error
or omission on her part. She thought i t had been rece

ived in Brentwood. There was a miscommunication between he r and the Brentwood offic

e. No one called h

er to tell [her that] it hadn’t been received. She didn’t call to c heck on it. She thought that it hadbeen received.

Based on these argume

nts during the tri

al, it is difficult

to fashion convincing argument that CryeLeike had effectively conceded the breach of contract claim in its November 9, 1999 answers to Dr. Hosier’s first set of interrogator ie s. Accordingly, for the purposes of addressing the issue of the reasonablenes s of the $15,944 attorney’s fee award in this case, we attach no sig nificanceto whether the legal services were rendered before or after November 9, 1999. Dr. Hosier’s breach of contract claim was at issue

through the conc

lusion of the trial.

II. Crye-Leike

also mo unts a three-pronged att ack on the reasonableness of Dr. Hosier’s $15,944 attorney’sfee. First, it asserts that Dr. Hosier has failed to present evidence regarding any of the reasonablenes s factors in Tenn. S. Ct. R. 8, DR 2-106(B). Second, it asserts that the fee is “clearly excessive.” Third, it asserts that the trial court sho ul d have disallowed most of the fee be

cause it involves time spent pursuing Dr. Hosier’s unsuccessful tort claims. We are not persuaded by a ny of these argume

nts.4 Crye-Leike argued: “Defendant would be shocked to lear n that the p laint iff act ually paid hi

s attorney $17,654.50 for a $1,600.00 contract claim and recovery (and defendant would be evern [sic] further shocked to learn that the plaintiff’s attorne y actually intends to charge or c ollect that amo unt from his client if th e Court does not order the defendan t to pay them).” Even whe n employin g the most ze alous efforts to r epresent a c lient, lawyers shou ld refrain from asserting that their a dversary is attem pting to perp etrate a fraud on the cour t unless they have some evid ence to support it. This record contains ab solutely no evid ence supp orting the claim that Dr. Ho sier’s lawyer had c ontrived his invoices simply

forthe purpos e of seeki ng an award of

attorney’s fees f

rom Crye-Leike under the property management contract.
-6- A.

The trial court awarded Dr. Hosier his “reasonable attorney’s fees” at the c onclusion of

the March1, 2000 trial and instructed the parties that it would conduct another hea ri ng regarding the issue of attorney’s fees and costs. On March 10, 2000, Dr. Hosier’ s lawyer su bmitted an affida

vit regarding the $17,654.50 in fe

es and expenses g

enerated on his c

lient’s behalf in

this litigation. He attached to this affidavit h

is invoices to Dr. Hosier containing a detailed itemization of the professional services and costs related to this proceeding. The lawyer also certified that the time and expenses were“necessary to investigate the facts, prepare the [c]omplaint, prepare responses to the [d]efendant’s requests for production of documents

and interrogatories, prepare for and attend the depositions of six (6) fact witnesses and one expert witness, prepare interrogatories and requests for production o f documents, prepare supplemental responses to the [d]efendant’s requests for production of documents and interrogatories, prepare the response to the [d]efendant’s motion for partial summary judgment, prepare for and attend the trial of this cause, and

otherwise prose

cute this [a]ction . . .”

On Ma rch 16, 2000, Cry e-Leike re

quested the trial c

ourt to determine w

hat a reasonable award for attorney’s

fees would be. In its motion and accompany

ing memorandum, C

rye-L eike, in unusually sharp terms,

characterized Dr. Hosier’s attorney’s fees a s “unreasonable and outrageous,” asserted that a $180 hourly rate was “extremely hig h” for a simple contract claim, and argued that the request ed fee was not the fee that Dr. Hosier’ s lawyer was actu ally charging. 4

The trial court

conducted a hearing on the attorney’s fee question on March24, 2000. While the record does not contain a transcript or sta

tement of the evid

ence of this

hearing, the trial court apparently

received an affidavit from another lawyer who opined that he w

as familiar with th

e hourly rates charged by lawy

ers in Sumner County for

cases of this sort and that “[t]he rate of $180 to $185 per hour for a partner in a law firm located within

the Metropolitan N

ashville Statistica

l Area is a reasonable

hourly rate for a breach of contra ct action.” On April 18, 2000, the trial court filed an order awarding Dr. Hosier $17,654 for his attorney’s fee s. On May 23, 2000, the trial cou rt filed another orde r reducing the attorney’s fee award to $15,944 because it had inadve rtently included discretionary costs in its April 18, 2000 order.-7- B.
When the parties’ contract provides that the prevailing party is entitled to reas

onable attorney’sfees in litigation to enforce the contract, the party who pre vails is contractually entitled to recover its rea

sonable attorney

’s fees, and the trial court has no discretion reg arding whether

to award attorney’ s fees or not. How ever, dete

rm ining 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); Airline Constr. Inc. v. Barr, 807 S.W.2d 247, 270 (Tenn. Ct. App. 1990). Acco rdi ngly, the appellate court

s must review a trial court’s determination of the reasonable amount of attorney’s fees to which a party is contractually entitled using the “abuse of discretion” standard.

The “abuse of discre

tion” standard is

a review-const

raining standar

d of review that c

alls for less intense appellate review and, therefore, less likelihood that the trial court’s decision will be reversed. State ex rel. Jones v. Looper , ___ S.W.3d ___, ___, 2000 WL 35 4 404, at *3 (Tenn. Ct

. App. 2000); White

v. Vanderbilt Univ. , 21 S.W.3d 215, 223 (T enn. Ct. App. 1999) . Appellate cour ts do not have the latitu

de to substitute their dis

cretion for that o

f the trial court.

Myint v. Allstate Ins. Co. , 970 S.W.2d 920, 927 (Tenn. 1998). Thus, a trial court’s discreti onary dec ision will be upheld
as long as reasonable minds can d isagree a bout the correctness of the decision. State v. Scott , 33 S.W.3d 746, 752 (Tenn. 2000); State v. Gilliland , 22 S.W.3d 266, 273 (Tenn. 2000). Discretionary

decisions must, how

ever, take the a

pplic abl e law and the rel

evant facts into account. Ballard v. Herzke , 924 S.W.2d 652, 661 (Tenn. 1996). Accordingly, a trial court will be foundto h ave “a

bused its discretio

n” only when

it applies an incor

rect legal sta

ndard, reache

s a decision th at is illogical, bases its decision on a clearly erroneous assessment of the evide nce, or emp loys reasoning that c

auses an injustic

e on the complaining party. Clinard v. Blackwood , ___ S.W.3d ___, ___, 2001 WL 530834, at *1 (Ten

n. 2001); Eldri dge v. Eldridge , 42 S.W.3d 82, 85 (Tenn. 2001); Overstreet v. Shoney’s, Inc. , 4 S.W.3d 694, 709 (Tenn. Ct. App. 1999).
C.

We turn first to Crye-Leike’s claim that Dr. Hosier ha

s not submitted suffi

cient evidence t

o support a claim for attorney’s fees. The doctor, of course, ha s the burden to make out

a prima facie claim for his request for reasonable attorney’s fees. Wilson Mgmt. Co. v. Star D istribs. Co. , 745 S .W.2d 87 0, 873 (Tenn. 1988) ; In re Estate of Perl berg , 694 S.W.2d 304, 309 (Tenn. Ct. App. 1984). Ord ina ril y, the party r equesting attor

ney’s fee s carries this bur

den by pres

enting the affi

davit of the lawyer who performed the work. Hennessee v. Wood Group Enters., Inc. , 816 S.W.2d 35, 37 (Tenn. Ct. App. 1991). Parties opposing a request for attorney’s fees should be a fforded a fair opportunity

to cross-examine the requesting party’s la wyer or to p

resent proof of i

ts own. Kahn v. Kahn , 756 S.W.2d 685, 696 (Tenn. 1988); Sherrod v. Wix , 849 S.W.2d 780, 785 (Tenn. Ct. App. 1992).-8-

In this case, the attorney who rep rese nted Dr. Hosier su

bmitted an affida

vit regarding

his services,copies of his invoices to Dr. Hosier detailing these services, and an affidavit by another practicing lawyer stating that the hourly r ate charged

Dr. Hosier in this ma

tter was consiste

nt with the hourly rate charged by other similarly situated

lawyers fo

r similar matters.

This evidence was sufficient to shiftthe burden of go

ing forward to Cr

ye-Le ike to demonstrate

how the requested fee
was unreasonable. As fa r as thi s record shows, Cr ye-Le ike put on no such ev

idence and simply relied on its lawyer’s rather strident complaints about the amount of the fee.

Parties seeki ng to recover their attorney’s fees are not expected to march in a para de of witnesses to testify at length about how the requested fee measures up to the factors in Tenn. S. Ct. R. 8, DR 2-106(B). Trialcourts are perfectly capable of applying these factors and deciding whether
a requested f ee is reason able based o n their kno wledge of the case and their perception of the value of the services performed. Wilson Mgmt. Co. v. St ar Distribs. Co. , 745 S.W.2d at 873; Preston Lincoln-Mercury, Inc. v. Kilgore , 525 S.W. 2d 155, 158 (Tenn. C t. App. 1974); Tennessee United Paint Store, Inc. v. D.H. Overmyer Warehouse Co. , 62 Tenn. App. 721, 730, 467 S.W.2d 806, 810 (1971); Harriman Weld

ing Supply Co. v. Lak

e City Lightweight Ag gregate Corp. , 46 Tenn. App. 529, 537, 330 S.W .2d 564 , 56 8 (1 959 ). A ccor din gly, we find that Dr. Hosier presented sufficient evidence to enable the trial court to calculate and award a reasonable attorne y’s fee.

D. Crye-Leike

next asserts that Dr. Hosier’s attorn ey’s fee is “clearly excessive” for the purposes of Tenn. S. Ct. R. 8. DR 2-106(A). This argument necessarily implies that Dr. Hosier’s attorney has “committ e d an ethical transgression of the most flagrant sort” and must, therefore, forfeit his fee

. White v. McBride , 937 S.W.2d 79 6 , 803 (Tenn. 1996). We have determined that Crye-L eike has greatly o verstated its arg

ument.
An attorney’s fe

e is clearly excessive if, “after a review of the fa cts, a lawyer of ordinary prudence would be left with a definite and firm conviction that the fee is in excess of a reasonable fee.” Tenn. S. Ct.

R. 8, DR 2-106(B); Fell v. Rambo , 36 S.W.3d 837, 852 (Tenn. Ct. App. 2000); In re Davis’s Estate , 719 S.W.2d 526, 528 (Tenn. Ct. App. 1986). The re is no evidence

in the record that a lawyer o

f ordinary prudence examinin

g the fee char

ged to Dr. Hosie

r in this litigation w

ould be left with

a definite and fi

rm conviction that t

he fee is clear

ly excessive. We have reviewed the record ourselves and have determined that the fee, while high, is in large part due to Crye-Leike ’s litigation strategy. Accordingly , we haveno basis for concluding that the trial court either misapplied the relevant leg al principles or b

ase d its dec ision on an erroneous assessment of the evidence.

E.

As a final argument, Crye-Le ike asserts that Dr. Hosier’s legal fee is unreasonable in light of the factors in

Tenn. S. Ct. R. 8, DR 2- 106(B). While it appears to have abandoned its claim that the $180 hourly rate was too high, Crye -Leike asserts that the fee is unreasonable because Dr.5 Crye-Leike argues in its brief that “no gre at skill or time” sho uld have been r equired t o convert i

ts admis sion that it did not co llect the security de posit into a jud gment.

6 Crye-Leike also argues in its b rief that “[c]learly, the m ajority of t hat fee was incurred to pursue the unsuccessful c laims for fraud , misreprese ntation, brea ch of fiduciary d uty, and punitive damage s.”
-9- Hosier’s lawyer spent

more time on the case that it warranted 5 and because

most of the lawy

er’s time
was spent pursuing Dr

. Hosier’s ill-fa

ted tort claims. 6 These ar guments are not supported by the record.

The reasonablenes s of requested at torney’s f ees depends on the facts of each case, Fell v. Rambo , 36 S.W.3d at 853; Alexander v. Inman , 903 S.W.2d 686, 695 (Tenn. Ct. App. 1995), not on the prevailing c

ustoms in the area. Adams v. Mellen , 618 S.W.2d 485, 489 (Tenn. Ct. App. 1981). Reasonableness

determinations should be guided by the factors in Tenn. S. Ct. R. 8, DR 2-106(B). White v. McBride , 937 S.W.2d at 800; Connors v. Connors , 594 S.W.2d 672, 676-77 (Tenn. 1980); Albright v. Merc er , 945 S.W .2d at 750-51; Alexander v. Inman , 903 S.W.2d at 695. The time expended a nd the hourly rate charged are only two of the many factors influencing the reasonablenes s of a particular fee. United Med. Corp. of Tenn., Inc. v. Hohenwald Bank & Trust Co. , 703 S.W.2d 133, 136 (Tenn. 1986). Other factors include the nature of the services rendere d, the novelty and difficulty of

the issues involved

, the skill required to perform the services properly, the results obtained, and the experience, skill, a nd r eputation of the a

ttorney per

forming the ser

vices. Connors v. Connors , 594 S.W.2d at 676. We need not tarry long with Crye- Leike’s argument that Dr. Hosier’s lawyer put too

many hours into this case after November 9, 1999, because it had essentially

conceded that it

had breached the property ma

nagement agr

eement by f

ailing to collec

t th e sec urity deposit. We have already determinedthat t his ar gumen t is d isin genuo us in l ight o f Crye-Le ik e’s aggress ive reliance on i

ts defense based on the agreement’sexculpatory clause. We have compare d Dr. Hosier’s la

wyer’s time records with the record a

nd have determine

d that t he amount of time the la

wyer spent

on the case after November 9, 1999, was notdisproportionate to the procedural and substantive defenses CryeLeike was co

ntinuing to asser

t. Crye-Leike

also argues that the lawyer’s time connected with preparing and pr esenting Harold F. Morris as an expert witn ess was unrelate

d to the breach of

contract claim. M

r. Morris, testifying as an expert in property management, testified that Cry e-Leike departed from thegenerally accepted practice in the in

dustry by failing to collect a security de

posit from Ms. Jordan a

nd that Ms. McCormick’s failure to collec t the security

deposit constituted negl

igence on her p

art. Clearly, Mr. Morris’s testimony was relevant to Dr. Hosier’s tort claims. Howev er, evidence ma

y be releva

nt to more than one issue. In light of Crye-L eike’s exculpatory clause defense, this testimony

was also relevant to the br

each of contra

ct claim.

Dr. Hosier asserted that Crye-Leike ha d breached the property managem ent agr eement by failing to collec

t a security

deposit from Ms.Jordan. Eventually, Crye-L eike conceded that

it had notcollected the se curity deposit but asserted that it could not be held liable for this oversight-10-

because the exculpatory clause in the property mana gement agreement shielded it from liability for errors in judgment and acts or omissions in good faith. There, as Crye-L eike’s own lawy

er put it, Dr. Hosier

could recover damages for breach of contract only if he proved “bad faith on the part of the defendant.” I

n order to establi

sh “bad faith,” D

r. Hosier was required t o prove that Ms. McCormick’s conduc t fell b elow the standard of conduct expected from property mange rs in the Nash v illearea. Mr. Morris’s testimony was certainly relevant to that issue. Accordingly, we respectfully

disagree with Crye-Leike ’s argument that the attorney’s fees relating to pre-trial preparation and

in-court examinati

on of Mr. Morris

bore no relations

hip to Dr. Hosier’s breach of contract claim.

III.

Dr. Hosier has also requested this court to

award him

his attorn ey’s f ees for th is appeal . We have determined that Crye-Leike pursued this appea l in good faith an d no t for the purpose of harassment

or d ela y. Ac cord ingl y, in our discretion, we de

cline to order Cry

e-Leike to r

eimburse Dr. Hosier for th

e reasonable le

gal fees he inc

urred as a resul

t of this appeal.

IV.
Based on our review of the record, we have determined that Dr. Hosier’s attorne y’s fee, w hile high in relation to his recovery, is not unreasonable in light of the litigation strategy employed by

the lawyersfor both parties in this case. In light of the record before us, we have no ba sis for overturning the trial court’s discretionary decision to award Dr. Hosi

er $15,944 in attor

ney’s fee s. A ccor din gly, we affirm the judgment for attorney’s fees a nd remand the case to the trial court fo r whatever further proceedings may be required. We tax the costs of this appeal to Crye- Leike Commercial, Inc. and its surety for which execution, if nece ssary, may issue.

____________________________ WILLIA M C. KOCH, JR., JUDGE