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Chambers v. Devore

Court of Appeals of Tennessee, Jackson

July 17, 2015

IRIS TERESA BOWLING CHAMBERS
v.
FAYE BOWLING DEVORE, ET AL.

Session June 10, 2015

Appeal from the Chancery Court for Fayette County No. 14533 James F. Butler, Chancellor

Julie C. Bartholomew and Valerie T. Corder, Somerville, Tennessee, for the appellant, Iris Teresa Bowling Chambers.

David L. Douglas, Somerville, Tennessee, and Joseph T. Townsend, Memphis, Tennessee, for the appellee, Minor Douglas, PLLC.

Kenny Armstrong, J., delivered the opinion of the Court, in which J. Steven Stafford, P.J., W.S., and Arnold B. Goldin, J., joined.

OPINION

KENNY ARMSTRONG, JUDGE

I. Background

This case began on or about September 21, 2007 when Appellant Iris Teresa Bowling Chambers filed a complaint against several defendants seeking to determine heirship, quiet title and for partition of certain real property, in which Ms. Chambers claimed an interest. The original case was appealed to this Court in Chambers v. Devore, No. W2008-02548-COA-R3-CV, 2009 WL 3739443 (Tenn. Ct. App. Nov. 9, 2009), perm. app. denied (Tenn. May 12, 2010) ("Chambers I"). In Chambers I, we reversed the trial court's grant of summary judgment and remanded the case to the Fayette County Chancery Court for further proceedings. At the time the initial complaint was filed, Ms. Chambers was represented jointly by Attorney K. Jayaraman and the Appellee Minor Douglas, PLLC ("Minor Douglas").[1] No written contract of employment was executed concerning this representation. However, during the course of the litigation, Ms. Chambers dismissed attorney Jayaraman and hired the Law Offices of Tommy L. Fullen & Joseph T. Townsend ("Fullen & Townsend") to represent her. On April 11, 2008, Ms. Chambers executed a written employment contract in favor of Fullen & Townsend (the "April 11, 2008 Contract"). The April 11, 2008 Contract was signed by attorney Thomas M. Minor and provided for fees "[o]n a contingent basis of one-third (or forty percent 40% if the case is appealed) of any amount that client receives in excess of $1, 360, 000.00 in inheritance from the Estate of Robert Milton Stone." There is no explanation in the record as to Mr. Minor's association with the Fullen & Townsend firm. However, on or about June 30, 2010, Ms. Chambers entered into an employment contract with Minor Douglas (the "June 30, 2010 Contract"). This contract, like the April 11, 2008 Contract, was signed by Mr. Minor on behalf of Minor Douglas. As discussed below, there is a dispute concerning the execution of these contracts as well as the apparent discrepancy between the two documents regarding the calculation of attorney's fees. The June 30, 2010 Contract provides, in relevant part, that:

For services rendered or to be rendered, I hereby set over and assign to my attorneys . . . an undivided interest of the greater of the hourly rate [$250 per hour, plus expenses] . . . or 30% of any amount that [Ms. Chambers] receives in inheritance from the Estate of Robert Milton Stone as a bodily heir of Nellie Stone Bowling[, whichever is greater].

This contract further provides that Minor Douglas "will have the right to place an attorney's fee lien against any recovery . . . ."

Upon remand from this Court, Ms. Chambers' complaint to determine heirship, quiet title, and for partition was ultimately decided in her favor. Ms. Chambers was determined to be an heir under the will. Accordingly, on March 24, 2011, the trial court entered a consent order of partition and for the appointment of commissioners to allocate Ms. Chambers' share of the property. The March 24, 2011 order specifically requires the commissioners "to make the partition, quality and quantity relatively considered, according to the respective rights and interest of the parties as the court has adjudged . . . ." On July 26, 2011, the commissioners filed their report, in which they conclude that partition of the 1, 221 disputed acres of land is feasible. The commissioners' report indicates that the tract awarded to Ms. Chambers consists of 202 Acres. Although the March 24, 2011 order did not require the commissioners to place a value on the partitioned land, their report set the value of Ms. Chambers' tract at $965, 000. On September 1, 2011, the trial court entered a consent order confirming the commissioners' report and awarding the partitioned tract to Ms. Chambers. This consent order does not set the value of Ms. Chambers' tract, although the court notes that all parties had "unanimously consented to and moved the court to confirm and approve the commissioners' report, without exceptions . . . ."

On November 7, 2011, Minor Douglas recorded a Notice of Attorneys Lien for Fees and Lien Lis Pendens in the Register's Office of Fayette County (Instrument 110057744). The lien claimed by Minor Douglas was in the amount of $289, 500.00, "representing thirty percent (30%) of the amount of property [Ms. Chambers] received as her share of the Estate . . . ." On the same day, November 7, 2011, Minor Douglas filed a motion in the trial court to enforce its attorney's lien, asking the court to enter an "[o]rder recognizing and enforcing its attorneys lien by noting said lien within the body and language of the deed to be executed and delivered by the Clerk and Master to [Ms. Chambers]." There is no dispute in the record that Ms. Chambers received notice of both the Notice of Attorneys Lien and the motion for enforcement. The trial court held a hearing on the attorney's lien on November 17, 2011. Ms. Chambers did not dispute Minor Douglas' right to an attorney's lien, which is provided for both in her contract with Minor Douglas and by state statute. Tennessee Code Annotated Section 23-2-102 provides that "[a]ttorneys and solicitors of record who begin a suit shall have a lien upon the plaintiff's or complainant's right of action from the date of the filing of the suit." Ms. Chambers contends that because she did not contest Minor Douglas' right to an attorney's lien, she did not make an appearance at the November 17, 2011 hearing to establish the lien. Although she did not dispute Minor Douglas' right to an attorney's lien, as discussed infra, Ms. Chambers did dispute the amount of the lien.

Following the hearing, on November 17, 2011, the trial court entered an order on Minor Douglas' motion to enforce its lien. Therein, the court held, in pertinent part, as follows:

1. A lien in favor of Minor Douglas . . . in the amount of $289, 500 representing thirty percent (30%) of the Commissioners' appraised value of the property [Ms. Chambers] received as her share of the Estate . . . is hereby declared valid and enforceable and shall be noted within the language of the deed of the Clerk and Master conveying to [Ms. Chambers] in fee simple and absolute title to the property identified by the Court appointed Commissioners as Tract No. 2 consisting of approximately 202 acres . . . .
2. It is further ordered that the court shall retain jurisdiction over this proceeding concerning the issue of further enforcement of the said attorney's fee lien in order to allow [Ms. Chambers'] counsel the opportunity to seek further enforcement of said lien should its fee remain unsatisfied for a period exceeding 120 days from the date of entry of a final judgment in this cause, the Court finding that the above described property which is the subject of [Ms. Chambers'] counsel's lien is a portion of the property which was the subject matter of these proceedings.

On December 15, 2011, the trial court entered judgment in the underlying lawsuit and released Minor Douglas' lien lis pendens, but not its attorney's lien.

On May 11, 2012, Minor Douglas filed a motion for sale of property, seeking to enforce its attorney's lien based on Ms. Chambers' alleged failure to pay Minor Douglas $289, 500.00 in fees within 120 days of the December 15, 2011 order.[2] In its motion, Minor Douglas stated that it "ha[d] not been paid the amount of the indebtedness due to them from [Ms. Chambers], " and sought sale of the property awarded to Ms. Chambers in the underlying lawsuit to satisfy the attorney's fees. In its motion, Minor Douglas relies on Tennessee Code Annotated Section 26-4-101, et seq. as authority for the sale of the property.[3] Minor Douglas filed an amended motion for sale of property on June 5, 2012. The amended motion states that, since the filing of the initial motion for sale of property, Minor Douglas had received additional payments from Ms. Chambers in the amount of $14, 095.86. The record shows that Ms. Chambers sold timber from the property and tendered the payment to Minor Douglas. The amended motion for sale of property states that Ms. Chambers has an outstanding balance of $257, 803.70 due and owing for attorney's fees.

On July 24, 2012, Ms. Chambers filed a motion to compel arbitration, a motion to modify the order to enforce attorney's lien, and a response objecting to the sale of property. Therein, she states, in relevant part, that:

The court's November 17, 2011 order purports to establish a contractual attorneys fee and lien in the amount of $289, 500 in favor of . . . the law firm of Minor Douglas, PLLC. As the parties are contractually bound to submit disputed issues concerning attorneys fees to arbitration, [4] [Ms. ...

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