Session March 28, 2018
Appeal from the Chancery Court for Davidson County No.
15-62-IV Russell T. Perkins, Chancellor
appeal involves a construction contract dispute among a
general contractor, a subcontractor, and the
subcontractor's equipment supplier regarding liability
for construction project delays. After a four-day bench
trial, the trial court resolved most of the substantive
issues among the parties and ultimately determined that the
prevailing parties were entitled to awards of attorney's
fees pursuant to various contractual provisions. However, the
trial court did not make the awards of attorney's fees
at that time because the parties had not submitted
sworn itemizations of services rendered. As a result, the
trial court directed the parties to renew their requests for
attorney's fees after any appeals were exhausted. The
requests for attorney's fees were granted in part and
denied in part "without prejudice." Due to the
outstanding unresolved issues regarding the attorney's
fee awards, we conclude that the appeal must be dismissed.
R. App. P. 3 Appeal as of Right; Appeal Dismissed
Toby Housch, Nashville, Tennessee, for the appellant, Air
Comfort Heating and Cooling, LLC. Timothy Howland Nichols,
Nashville, Tennessee, for the appellee, E Solutions for
Grant LaFevor and Amy Wood Malone, Nashville, Tennessee, for
the appellee, Knestrick Contractor, Inc., and Berkley
Regional Insurance Company.
Brandon O. Gibson, J., delivered the opinion of the court, in
which Arnold B. Goldin and Kenny Armstrong, JJ., joined.
BRANDON O. GIBSON, JUDGE
Facts & Procedural History
litigation involves the construction of the Centennial
Sportsplex Indoor Fitness Expansion Building by the
Metropolitan Government of Nashville and Davidson County and
its Parks Department. In April 2013, Knestrick Contractor
Inc. entered into a construction contract with Metro as
general contractor for construction of the building. In
conjunction with the project, Knestrick, as principal, and
Berkley Regional Insurance Company, as surety, provided a
payment bond for the project.
1, 2013, Knestrick entered into a subcontract with Air
Comfort Heating and Cooling, LLC, to furnish the labor and
equipment necessary to install the HVAC system at the
project. In November 2013, Air Comfort submitted a purchase
order to E Solutions for Buildings, LLC, for the necessary
HVAC equipment. All of the parties subsequently attended a
meeting at which some of the equipment choices were modified.
Eventually, the equipment for the project was furnished by E
Solutions and installed by Air Comfort. However, because the
project was delayed, Metro assessed liquidated damages
against Knestrick, the general contractor. Knestrick assessed
liquidated damages against Air Comfort, the subcontractor,
and, as a result, Air Comfort withheld final payment to E
Solutions for its failure to deliver the HVAC equipment
Solutions filed this lawsuit against Knestrick, Air Comfort,
and Berkley Regional Insurance Company as surety on the bond.
Air Comfort filed a counterclaim against E Solutions and a
cross-claim against Knestrick and Berkley. Knestrick and
Berkley filed a cross-claim against Air Comfort. All of the
parties sought to recover their attorney's fees.
four-day bench trial, the trial court awarded E Solutions a
judgment against Air Comfort for breach of contract, although
not for the full amount it requested. The trial court also
found that Air Comfort was entitled to a judgment against
Knestrick for breach of contract, but not for the full amount
it requested. The trial court dismissed the various other
claims asserted. The order stated that "determination of
liability for, and the amount of, attorneys' fees,
expenses and/or discretionary costs under Tenn. R. Civ. P.
54.04 to which any party is entitled to recover should await
the outcome of any appeal in this case." Accordingly,
the court expressly reserved any determination about
attorney's fees, expenses, and discretionary costs until
all appeals were concluded.
entry of the order, E Solutions filed a motion to alter or
amend and asked the court to make a definitive award of
attorney's fees. Thereafter, all of the other parties
likewise filed motions asking the court to resolve the issues
of discretionary costs and attorney's fees. The parties
asserted that judicial economy would support resolution of
these outstanding issues so that they could be addressed on
appeal alongside the other issues and in order to avoid the