FILED

April 25, 1997

Cecil W. Crowson

Appellate Court Clerk

JOSEPH G. WALKER, ET AL., )

) NO. 01-A-01-9610-CH-00497

PLAINTIFF/APPELLANT, )

) WILSON CHANCERY NO. 9191

v. )

)

BOARD OF EDUCATION OF )

WILSON COUNTY, )

)

DEFENDANT/APPELLEE. )

COURT OF APPEALS OF TENNESSEE

MIDDLE SECTION AT NASHVILLE

APPEAL FROM THE WILSON COUNTY CHANCERY COURT 

AT LEBANON, TENNESSEE

THE HONORABLE ROBERT W. WEDEMEYER, JUDGE

WILLIAM L. HARBISON

Sherrard & Roe, PLC

424 Church Street, Suite 2000

Nashville, Tennessee 37219

ATTORNEY FOR APPELLANT LALETA SHIPPER

HENRY CLAY BARRY

106 South College Street

Lebanon, Tennessee 37087

ATTORNEY FOR APPELLANT ALLEN BARRY

ERNEST W. COTTEN

202 East Gay Street

Lebanon, Tennessee 37087

ATTORNEY FOR APPELLANT JOSEPH G. WALKER

MICHAEL R. JENNINGS

Wilson County Attorney

326 N. Cumberland Street

Lebanon, Tennessee 37087

ATTORNEY FOR APPELLEE BOARD OF EDUCATION

OF WILSON COUNTY

AFFIRMED AND REMANDED

SAMUEL L. LEWIS, JUDGE
1

 Appellants Shipper and Barry did not testify at trial because, according to their

attorneys, the testimony would have been cumulative to that of Appellant Walker.

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OPINION

This is an appeal by plaintiffs/appellants, JosephG.Walker, Laleta Shipper and

Allen Barry, from a decision of the trial court dismissing their complaint to recover

attorneys’ fees from defendant/appellee, the Board of Education of Wilson County

(“the Board”). The facts out of which this matter arose are as follows.

In February 1991, the District Attorney General initiated ouster proceedings

against Appellants and Frank Sadler, all members of the Board, on the

recommendation of the grand jury. The grand jury's decision was the result of its

investigation into audits that revealed the Wilson County School System had incurred

a budget deficit of approximately two million dollars for fiscal years 1988-90. 

Several things happened as the case proceeded to trial. Frank Sadler resigned

his board position rather than defend himself at trial. Appellants learned the Board’s

insurance would not cover the legal expenses associated with the ouster proceeding.

Also, Mike Jennings, the county attorney, informed Appellants he could not represent

them in the ouster proceeding because of a conflict of interest. Appellant Walker

testified that Mr. Jennings advised Appellants to retain their own counsel and that

Appellant Walker understood the Board would pay for it “out of a budget line item

for the school board.”1

 Appellants each retained counsel to represent them, and the

case went to trial. 

At the end of the trial, the court directed a verdict in favor of Appellants as to

count nine and turned the remaining eight counts over to the jury. After hearing the

jury's findings, the court ordered the ouster of Appellants. Thereafter, Appellants

filed a motion for a new trial which the court denied. Appellants also filed a motion

for attorneys' fees in relation to the dismissed count pursuant to Tenn. R. Civ. P. 11

and 42 U.S.C. §1988.

Appellants appealed the trial court's decision to oust them from the Board.
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This court reversed the trial court after finding, in pertinent part, as follows: “We are

of the opinion after a thorough review of this record that the defendants have not

violated any of the duties assigned to them.” State v. Walker, 845 S.W.2d 752, 760

(Tenn. App. 1992). As a result, Appellants Walker and Barry were reinstated.

Appellant Shipper was not reinstated because her term had expired.

On remand, the trial court entered an “Order for Cost” which awarded

Appellants costs pursuant to Tennessee Code Annotated section 8-47-122, but denied

their claims to attorneys' fees. The trial court determined it did not have authority to

order the Board to pay Appellants' attorneys' fees and concluded the Board should

determine the issue itself.

Appellants then initiated a second appeal which this court dismissed for lack

of a final judgment. Thereafter, the trial court entered an order awarding a specified

amount of costs. Appellants initiated a third appeal. The western section heard the

case while sitting in Nashville. The western section determined Appellants were

entitled to Rule 11 sanctions as to count nine and were not entitled to fees under 42

U.S.C. §1988. State v. Walker, No. 01-A-01-9311-CR-00486, 1994 WL 164144, *4-

5 (Tenn. App. 4 May 1994).

After the Board reinstated Appellants Walker and Barry, Appellants requested

the Board pay their attorney's fees. The Board refused. Prior to the filing of the

western section's decision, Appellants filed a complaint in the Wilson County

Chancery Court. Appellants claimed a motion carried by the Board on 8 October

1987 required the Board pay their attorney's fees. The minutes of the 8 October 1987

meeting provided: “Mrs. Shipper moved that any judgment rendered against any

Board member, Superintendent, or employee while acting in his or her official

capacity be paid for by the Board. Mrs. Webb seconded and the motion carried.”

Appellants also filed the affidavit of Felix Smallwood, Wilson County School

Superintendent from September 1984 to September 1988, in support of their

complaint. Mr. Smallwood stated the intent of the motion “was that the school

system was to pay the cost incurred as a result of litigation brought against school

system officials.” In response, the Board argued the trial court decided the issue in

the ouster proceeding and the 8 October 1987 minutes did not reflect a Board policy
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to pay attorney's fees.

The chancery court entered its final judgment on 23 May 1996 wherein it

dismissed Appellants' complaint. The chancery court found there was no statutory

basis for an award of attorney’s fees and the Board did not establish a policy for

paying attorney's fees. Thereafter, Appellants filed a timely notice of appeal. The

sole issue on appeal is whether Appellants are entitled to recover their attorneys’ fees

from the Board.

Appellants are not entitled to relief under Tennessee law. In 1879, the

Tennessee Supreme Court decided a similar case. Smith v. Nashville, 72 Tenn. 69

(1879). In Smith, the State brought a bill, on the relation of a number of Nashville

citizens, accusing the Mayor and Common Council of Nashville, the Mayor,

individual members of the City Council, and other city officials with gross

misconduct and with having brought the corporation to the verge of bankruptcy. Id.

at 70. On 5 June 1869, the Mayor retained an attorney to aid the City Attorney in the

defense of the case. The Mayor and the City Council ratified the Mayor’s action in

September 1869. Id. at 71. Thereafter, the attorney filed an action for his fees. The

trial court concluded the municipal corporation had no interest in defending the bill

and that neither the City Council nor the Mayor had the authority to bind the

municipal corporation. Thus, the trial court entered judgment against the attorney.

The Tennessee Supreme Court affirmed the judgment and stated:

Where a municipal corporation has no interest in the event of a

suit, or in the question involved in the case, it would seem clear that it

could not assume the defense of the suit, or appropriate its money for the

payment of the expenses incurred. . . . Most clearly the corporation

could not appropriate money to defray the costs of an official who had

been prosecuted for official misconduct, although he be acquitted.

Id. at 72 (emphasis added). The court then stated: “A retainer for the defense of any

suit in which the corporation is not directly interested would be of no avail to create

a corporate liability.” Id. at 73. This case is analogous to the case currently before

this court. Appellants have failed to provide any authority in opposition to the

holding in Smith. In a more recent case, this court concluded that “suits under the

ouster law are directed to the individual holding the office rather than the office

itself.” Marshall v. Sevier County, 639 S.W.2d 440, 444 (Tenn. App. 1982). After
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considering this holding and the decision in Smith, we must conclude the City did not

have an interest in the suit. Thus, Appellants can not recover their attorney’s fees at

law.

Appellants also argue they are entitled to their attorneys’ fees because the

Board had a policy or practice of paying its member’s attorney’s fees. There was no

policy. In 1987, the Board’s rules required there be three readings before a proposal

became a policy. The 8 October 1987 motion never received three readings. Even

if we were to conclude there was a practice as opposed to a formal policy, we could

not reverse the trial court on that basis alone. In Marshall, this court considered a

similar argument and determined it was without merit. Marshall, 639 S.W.2d at 445.

Moreover, Appellants have failed to cite any equitable principles entitling them to

relief. There is no evidence the City benefited from Appellants’ actions or that

Appellants relied on the City’s “practice” when they hired independent counsel.

Despite our desire to overrule the chancery court, we were unable to find a

legal or equitable ground upon which to base such a ruling. The history of the case

reveals Appellants had done nothing wrong, but were forced to incur substantial

attorneys’ fees nonetheless. Should the Tennessee Supreme Court take this issue up

for consideration, we hope they are able to devise a just result.

Therefore, it follows that the decision of the chancery court is affirmed and the

case remanded for any further necessary proceedings. Costs on appeal are taxed to

plaintiffs/appellants, Joseph G. Walker, Laleta Shipper, and Allen Barry.

_____________________________

SAMUEL L. LEWIS, JUDGE

CONCUR:

______________________________

HENRY F. TODD, P.J., M.S.
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______________________________

BEN H. CANTRELL, J.