# FILED
Ap ril 25, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk JOSEPH G. WALKER, ET AL., ) ) NO. 01- A-01-9610 -CH-0049 7 PLAINTIFF/APPELLANT, ) ) WILS ON CH ANCER Y NO. 9191 v. ) ) BOARD OF EDUCATION OF ) WILSON COUNTY, ) ) DEFENDANT/APPELLEE. )



### COURT O F APPEALS OF TENNESSEE MIDDLE SECTION AT NA SHVILLE APPEAL FROM THE WILSON CO UNTY CH ANCERY COURT

AT LEBANO N, TENNESSEE THE HO NORABLE ROBERT W. WE DEMEYE R, JUDG E

WILL IAM L . HARBISON Sh err ard & Ro e, P LC 424 Church Street, Suite 2000 Nashville, Tennessee 37219 ATTORNEY FOR APPELL ANT LAL

ETA SHIPPER HENRY CL

AY BARRY 106 South College Street Lebanon, Tennessee

37087 ATTORNEY

FOR APPEL

LANT ALL EN BARRY ERNEST W. COTTEN 202 East Gay Stree

t Lebanon, Tennessee

37087 ATTORNEY FOR APPELL ANT JOSEPH G. WALKER MICHAEL

R. JENNINGS Wilson County Attorney 326 N. Cumberland Street Lebanon, Tennessee

37087 ATTORNEY FOR APPELL EE BOARD OF EDUCATION OF WIL SON COUNTY

AFFIRMED AND REMANDED

SAMUEL L. LEWIS, JUDGE1 Appellan ts Shipper

and Bar ry did not tes tify

at trial b ecause , accor

ding to th eir attorneys, the testimony

would have been cumulative to that of Appellant Walker.

-2- 

### O PINION

This is an appea

l by pla intiffs/a ppellants, Jose ph G. Walker, Laleta Shipper a nd Allen Barry, fr

om a decision of the trial court dismis sing their c ompla

int to recover attorney s’ fees from defendant/appellee, the B oard of Educa t ion of Wi lson County (“the Board”) . The f

acts out of

which this matt

er arose are as f ollows.

In February 1991 , the Di strict A ttorney Genera l initiated ouster pro ceedings again st App ellants an d Frank Sa dler, al l mem

bers of the

Board, o n the recom menda tion of the grand jury. T he grand jury 's decision w as the re sult of its investigati on into audits t

hat revea led the W ilson County School System had incurred a budget d eficit of ap proximately two millio n dollars for fiscal years 1 988-90.
Several things happened a s the case proceeded to trial. Frank Sadler resigned his board positi on rather

than defe nd hims elf

at trial. Appellan

ts learn ed th e Boar d’s insurance would not coverthe legal expenses associated with the ousterproceedi ng. Also, Mike Jennin gs, the co unty at torney , inform

ed Appell ants hecould not represe nt them in the ouste

r procee ding becaus e of a conf lict o f interest. Appellant Walker testified that Mr. Jennings adv is ed Appe llants to retain their own counsel and that Appellant Walker understood the Board would payfor it “ out of a budget line item for the schoo l board.” 1 Appellan ts each r etained c ounsel to re

present th em, and the case went to t rial.
Atthe end

of the tri al, the c ourt direc ted a verd ict in favor

of Appell ants as to count nine and turned the remaining eight counts over to the jur y. After hea

ring the jury's findings, the court ordered the ouster of Appellants. There afte r, Appe llants filed a motion for a

new tria l which the

court deni ed. Appellan

ts also fil ed a motion for attor neys' fees in relation to the dismissed count pursuant to Tenn. R. Civ. P. 11 and 42 U. S.C. §1 988. Appellant s appealed the trial court's decision to oust them fr om the Boa rd.-3-

This court re versed the

trial cour t after f inding, in pertinent part, as follows: “We are of the opinion after a thorough review of this record t hat the def

endants hav e not violated any of the duties assigned to them.” State v. Walker , 845 S.W .2d 752, 76 0 (T enn. App. 1992) . As a r esult, A ppellants W alker and

Barry were r einstated. Appellant Shipper w as not rein stated bec ause her t erm had expire d.
On rem and, the t

rial cour t entere d an “Order for C ost” which awarded Appellant s costs pursuant to Tennessee Code A nnotated section 8-47-122, but denied their claim s to attorneys' fees. T he trial c ourt deter

mined it did not hav e authorit

y to o rder t he Board t

o pay A ppellants'attorney s' fees a nd conclude d the Boar

d should determine the issue itself. Appellant s then initia

ted a second appeal which this court dismissed for lack of a final judgment. T

hereafter, the trial court entered an order awarding a specified amount of costs. Appellan

ts initiate d a third ap peal. T he weste rn section heard the case while sitting in Nashville. The western section determ ined Appellan ts wer e entitled to Rule 11 sanctions a s to count nine a nd were n ot entitled

to fees under 42 U.S.C. §1988. State v. Walker , No. 01 -A-01-9 311-CR-00 486, 1994 W L 164144, * 4- 5 (Tenn. App. 4 May 1994).
After the Board

reinstate d Appella

nts Walke r and Bar ry, Appellants requested the Board pay their attorney's f ees. T he Board r

efused. Prior to t

he filing of

th e western section's decision, Appellants filed a compl aint i n the Wilson C ounty Chancery Court. Appellants clai med a mo tion carried by the Board on 8 October 1987 required the Board pay their attorney's fees. T he minutes of the 8 October 1987 meet ing provided: “

Mrs. Shipper m

oved that a

ny ju dgment

r e ndered aga

inst any Board mem

ber, Superintendent, or emplo yee while acting in his or her official capacity be paid for

by the Board. M

rs. W ebb seconde d and the m ot ion c arried.” Appellants also file d the aff idavit of Felix Smallwood, Wilson C ounty S cho o l Superintendent

from Septem

ber 1984 to Septem

ber 1988 , in support

of their compl aint. Mr. Smallw ood stated the intent of the motion “was that t he school system was to pay the cost incurred as a result of litigation b rought agai nst school system officia ls.” In r esponse, t he Board a

rgued the t

rial cour t decided t

he issue in the ousterproceedi ng and the 8 O ctober 1987 minute s did not ref lect a Board policy-4-

to pay a ttorney 's fees.
The chancer

y court en tered its final ju dgment on 23 May

1996 wherein it dismissedAppellants' complaint. The chancer y court found there was no statutory basis for an award of attorney’ s fees and the Board did not establish a policy fo r payingattorney 's fees. Therea fter, A ppellants f

iled a tim ely not ice of app eal. T

he sole issue on appeal is whether Appellants are entitled torecover their att orney s’ fees from the Board
. Appellant s are not entitled to relief under Tennessee law. In 187 9, the Tenne s see Supreme Court dec ided a similar ca se. Smith v. Nash ville , 72 Tenn . 69 (1879). In Smith , the State br ought a bill, on the rela

tion of a num

ber of N ashville citizens, accusing t

he May or and C ommon Council of Nashville, the Mayor, individu al m embe

rs of the C ity Cou ncil, and other city

officia ls with gro ss misconduct

and with ha

ving brought

the corporation to the

verge of bankrupt cy. Id. at70. On 5 June 1869, t

he May or retai ned an atto rney t o aidthe City

Attorney in the defense of the case. The Mayor and the City Council ratified the May or’s ac tion in September

1869. Id. at 71. Therea

fter, t he attorney file d an action for his fees. T

he trial court concluded the municipal corporation had no interes t in defend ing the bill and that neithe

r the City

Council nor

the May or had the a

uth ority to bin d the municipal corporat

ion. Thus , the tri al court e nt ered ju dgm ent aga ins t th e att orn ey. The Te nnessee S uprem

e Court af

firm ed the ju dgment

and stated : Where a muni cipal cor

poration ha s no int erest in t he event of a suit, or in the question involved in the case, it would seem clear th at it couldnot assum e the defense of the

suit, or a ppropriate

its mo ney fo r the pa ym ent of the expenses incurr

ed. . . . Most cle arly the cor poratio n couldnot appropr

iate m oney todefray the costs of an official who had been pros ecuted for o fficial miscond uct, although he be acquitted

. Id. at 72 (emphasis added). The court then stated: “A retainer for the de fenseof any suit in which th e corporat

ion is not dir

ectly intereste d would be of

no availto creat

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

ppellants ha

ve failed to provide a

ny auth o ri ty in opp osition to the holding in Smith . In a m ore recent case, this court c oncluded tha t “sui ts u nde r the ousterlaw are

directed to the indivi du al holding t he office rather than the office itself.” Marshall

v. Sev ier Count

y , 639 S.W.2d 440 , 444 (Tenn. App . 1982). After-5-

considerin g this holding a nd the deci sion in Smith , we must conclude t

he City did not have an interest in the suit. Thus, Appellants can not recover their attorney’ s fees at law. Appe llants al so argue th ey ar e entitled to their a

ttorney s’ fee s because the Board had a poli cy or practice of p aying its member’s attorne y’s fees. There was no pol icy. In 1987, th e Board’ s rules re quired ther e be three readings before a proposal bec ame a policy. The 8 October 1987 m otion never received three readings. Even if we were to conclude there was a practice as opposed to a form al policy , we co uld not reverse the trial court on tha

t basis alon e. In Marshall , th is court consider ed a similar argument and de termined it was wit hout merit. Marshall , 639 S.W.2d at 445. Moreo ver, Appel lants have failed to c ite any equitable principle s entitling t

hem to relief. There i s no evidenc e the City benefite d from

Appellan t s’ actions or that Appellant s relied on

the City ’s “practice ” when they hire d independe nt counsel. Despite our desire to overrule the chancery co urt , we w ere unabl e to find a legal or equitable ground upon which to base suc h aruling. T he history of the ca se reveals Appellants had done nothing wrong, but were forced to incur substantial attorney s’ fees nonet heless. Should the Tennessee Supreme Court take this i ssue up for conside

ration, w e hope they

are able to devise a

just res ult.
Therefore, it follows that the decision of the chancery court is affirm ed and the case rem anded for

any further necessary

proceedings. Costs on appeal are taxe d to pla int iffs /ap pel lan ts, Jos eph G. Wal ker , Lal eta S hip per , and Alle n Ba rry.

_________________

____________ SAMUEL L. LEWIS, JUDGE CONCUR:

_________________

_____________ HENRY F. T ODD, P.J., M.S.-6-

_________________

_____________ BEN H . CANTREL

L, J.