Under Tennessee law does a trial court have discretion to refuse to award attorney's fees to the prevailing party that are provided for in a contract between the parties?

Brief Summary:  The trial court does not have discretion to refuse to award attorney’s fees that are to be paid by the “non-prevailing” party as provided for in a contract between the parties.

Analysis:  The Tennessee Court of Appeals in Gatlinburg Roadhouse Investors, LLC v. Charlynn Maxwell Porter, No. E2011-02743-COA-R3-CV, 2012 WL 6643809 (Tenn. Ct. App. December 20, 2012) recently decided a breach of contract case between two parties.  The contract in question had a provision requiring that the “non prevailing” party of any litigation pertaining to the contract pay the attorney's fees of the prevailing party.  The specific language of this term in the contract was:

The non-prevailing party shall pay all reasonable costs and expenses, including attorneys' fees and court costs, that shall be made or incurred by the prevailing party in enforcing the terms and conditions of this Lease.

Gatlinburg at 10.  In this case the trial court refused to award attorney's fees that were required in the party's contract.  The trial court specifically stated on the record that:

I will not award attorney fees rightly or wrongly from a legal perspective. I will not award attorney's fees. The problem here is you had all sort of ambiguity, and the ambiguity in the Interest Purchase Agreement and the amendment to the sublease, you had the original ambiguity about the sale of the restaurant which I held is an ambiguity. That's what I think, so you are going to enforce the terms of a document, you are going to award attorney fees for enforcement in terms of a document that's so ambiguous that each side in my opinion had a reasonable basis for their argument of what the terms of the lease was. So I don't think it's appropriate to award attorney’s fees, and therefore I do not.

Comparative fault – Under Tennessee law can a plaintiff sue an entity outside of the statute of limitations when a defendant names that entity as a potential at-fault party in discovery responses?

Brief Summary:  The identification of a potential non-party tortfeasor by a defendant in discovery responses (as opposed to in an answer) is not sufficient to trigger the extension of the statute of limitations that is allowed under T.C.A. § 20-1-119 for assertions of comparative fault. 

Analysis:  The Tennessee Court of Appeals recently decided an interesting case involving T.C.A. § 20-1-119 and its application in the context of discovery responses.  The Tennessee Court of Appeals decision of Rev. J.M. Shaffer v. Memphis Airport Authority et. al., No. W2012-00237-COA-R9-CV, 2013 WL 209309 (Tenn. Ct. App. January 18, 2013) discussed whether the ninety day statutory period, (under T.C.A. § 20-1-119) that allows a plaintiff to bring in a new defendant outside of the statute of limitations, was triggered when a defendant answered discovery identifying a potential tortfeasor.  Normally this statute is used when a defendant asserts comparative fault in an answer to the complaint outside of the statute of limitation time period for the cause of action. 

In this case, the plaintiff was allegedly injured in a slip and fall on April 29, 2009.  Shaffer at 1.  One year later on April 29, 2010, Shaffer filed a lawsuit in Circuit Court. Shaffer at 1.  The defendant filed an answer to the complaint on September 1, 2010 and asserted comparative fault against "other parties or non-parties" without identifying them by name.  Shaffer at 1,2.  On February 25, 2011, the defendant provided discovery responses identifying a potential third-party that was responsible under Tennessee comparative fault principles. Shaffer at 2.  On May 4, 2011, 245 days after the defendant filed the answer, the plaintiff filed an amended complaint against this newly identified entity. Shaffer at 2.  This new defendant filed a motion to dismiss citing the applicable one year statute of limitation and the assertion that T.C.A. § 20-1-119 did not apply to extend the statute of limitation in this circumstance based on the plain language in the statute.

Summary Judgment – In Tennessee the trial court must appropriately state the legal grounds for summary judgment in the order

Analysis:  The Tennessee Court of Appeals in the recent decision of Mary C. Smith v. UHS of Lakeside, Inc., No. W2011-02405-COA-R3-CV, 2013 WL 210250 (Tenn. Ct. App. January 18, 2013) discussed the requirement that a trial court state the legal grounds for summary judgment in the order.  Specifically, Tennessee Rule of Civil Procedure 56.04 provides as follows:

The motion shall be served at least thirty (30) days before the time fixed for the hearing. The adverse party may serve and file opposing affidavits not later than five days before the hearing. Subject to the moving party’s compliance with Rule 56.03, the judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. The trial court shall state the legal grounds upon which the court denies or grants the motion, which shall be included in the order reflecting the court’s ruling. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages.

In the Smith case, the trial court granted a motion for summary judgment and requested the defendant's attorney to prepare the order discussing the basis and support for the granting of the motion for summary judgment.  Smith at 6 - 8.  In fact, the trial court judge made the following comments on the record:

Now the appellate court is going to want a rationale from our rulings, so in the case of agency I'm going to let the, on the ones for which you were successful, I'm going to let you make proposed [orders].... As far as a basis for the ruling, I'm going to let you make those.

Smith at 6.  These comments were directed at counsel for the defendant.  The court then entered the proposed orders drafted by counsel for the defendant over the objections of the plaintiff. Smith at 6.  The plaintiff therefore appealed the rulings of the court and asserted the court did not comply with Tennessee Rule of Civil Procedure 56.04.  The Tennessee Court of Appeals discussed prior cases on this issue and found:

Subrogation - Is an employer entitled to a subrogation lien for the cost of future medical benefits for an injured employee?

Brief Summary:  An employer’s subrogation lien found in T.C.A. § 50-6-112 for benefits paid in a workers compensation case does not include future medical benefits for the employee.

Analysis:  The Tennessee Supreme Court recently reconsidered whether an employer was entitled to a subrogation lien for the cost of future medical benefits for an employee in the decision of Joshua Cooper v. Logistics Insight Corp., No. M2010-01262-SC-R11-CV, 2013 WL 163976 (Tenn. 2013).  This case specifically dealt with the scope of the employers subrogation rights found in T.C.A. § 50-6-112.  It appears the reason the Tennessee Supreme Court took this case (despite having handed down prior decisions on this issue) was because the Tennessee Court of Appeals held that future medical expenses in this case were not too speculative as a matter of law and therefore could possibly be included in the employer's subrogation lien.  Joshua Cooper v. Logistics Insight Corp., No. M2010-01262-COA-R3-CV, 2011 WL 1874577, at *4, *5 (Tenn. Ct. App. May 16, 2011).

The statute in question is T.C.A. § 50-6-112(c) which addresses an employer's subrogation rights for workers compensation benefits.  The pertinent part of the statute provides as follows:

(c)(1) In the event of a recovery against the third person by the worker, or by those to whom the worker's right of action survives, by judgment, settlement or otherwise, and the employer's maximum liability for workers' compensation under this chapter has been fully or partially paid and discharged, the employer shall have a subrogation lien against the recovery, and the employer may intervene in any action to protect and enforce the lien.

(2) In the event the net recovery by the worker, or by those to whom the worker's right of action survives, exceeds the amount paid by the employer, and the employer has not, at the time, paid and discharged the employer's full maximum liability for workers' compensation under this chapter, the employer shall be entitled to a credit on the employer's future liability, as it accrues, to the extent the net recovery collected exceeds the amount paid by the employer.

(3) In the event the worker, or those to whom the worker's right of action survives, effects a recovery, and collection of that recovery, from the other person, by judgment, settlement or otherwise, without intervention by the employer, the employer shall nevertheless be entitled to a credit on the employer's future liability for workers' compensation, as it accrues under this chapter, to the extent of the net recovery.

Tennessee Consumer Protection Act - Does the Tennessee Consumer Protection Act apply to claims derived from deceptive conduct in foreclosure proceedings?

Brief Summary:  The Tennessee Consumer Protection Act (also “TCPA”) does not provide the basis for a claim under the TCPA for deceptive conduct in a foreclosure proceeding.

Analysis:  The Tennessee Court of Appeals in David Paczko v. SunTrust Mortgages, Inc., No. M2011-02528-COA-R3-CV, 2012 WL 4450896 (Tenn. Ct. App. September 25, 2012) discussed whether allegedly deceptive foreclosure conduct can form the basis for a Tennessee Consumer Protection Act claim.  In this case the plaintiff alleged claims against SunTrust Mortgage, Inc. for instituting a foreclosure against the plaintiffs with knowledge that they did not have any rights, titles, or interest in the property in question.  Paczko at 2.

The trial court dismissed plaintiff's Tennessee Consumer Protection Act claim for failure to state a claim upon which relief can be granted under Tennessee Rule of Civil Procedure 12.02(6).  The Tennessee Court of Appeals affirmed this decision and found the Tennessee Consumer Protection Act "does not apply to allegedly deceptive conduct in foreclosure proceedings."  Paczko at 2. (citing Gibson v. Mortgage Elec. Registration Sys., Inc., 2011 WL 3608538 at *5 (W.D. Tenn. August 16, 2011)). 

The court relied upon the reasoning in the Tennessee Supreme Court's decision in Pursell v. First American National Bank, 937 S.W.2d 838 (Tenn. 1996) to support this decision.  In that case the Tennessee Supreme Court found: 

The TCPA did not create a cause of action for deceptive repossession procedures because the actions of a bank and its agent in carrying out a repossession “did not affect the ‘advertising, offering for sale, lease or rental, or distribution of any goods, services, or property, tangible or intangible, real, personal, or mixed, and other articles, commodities, or things of value wherever situated.

In the